text:
    No.13,045.
    Minine Linzay, Wife, vs. Charles Linzay, Husband.
    Syllabus.
    1. Wife sues for separation from bed and board on tbe ground of barsb and! cruel treatment and conspiracy against her life. Husband denies her averments, and reconvenes asking judgment against her for separation, averring the game grounds, and in addition her public defamation of him.
    S. Case is one of fact. Evidence not sustaining judgment below in favor of wife, same is reversed and the decree here awards husband the separation with custody of the children.
    3. Even with the judgment as here pronounced the case has not gone so far as to destroy the belief and hope that a reconciliation may yet be effected, and" the spouses brought together upon a basis of mutual forgiveness, forgetfulness and forbearance, and of common interest in their children of tender1 years.

      4. The law wisely and humanely holds the door still ajar for them.
    ON APPEAL from the Tenth Judicial District Court for the-Parish of Rapides. Hunter, J.

      Robert P. Hunter for Plaintiff and Appellee.

      Andrews & Hakenyos for Defendant and Appellant.
    Argued and submitted February 9, 1899.
    Opinion handed down March 7, 1899.
   The opinion of the court was delivered by

Blanchard, J.

This is a suit by a wife for separation from bed and' board, for custody of the two children of the marriage, for dissolution of the community of acquets and gains, and for judgment for one-half of the community property.

The grounds of the action are, harsh and cruel treatment by the husband of such a nature as to render their living together insupportable, and the allegation is made that the husband had threatened’ her life and conspired with others to hill her, and as the result of this conspiracy she was enticed to the barn on the premises where the-couple lived and there shot with a pistol and wounded in the arm by a-concealed assassin, who endeavored to take her life, and that because of this attempt on her life she had been forced to leave the matrimonial domicile and seek shelter elsewhere.

The husband denies all this, represents that the wife is not a fit person to have custody of the children, and contests her right to them.

Becoming plaintiff in reconvention, he avers that the conduct of the wife entitles him to a judgment of separation from bed and board; that she, herself, had been unkind, cruel, harsh and abusive, disregardful of his rights, had set his will and authority at defiance, had destroyed his peace of mind and the happiness of his home, and rendered their living together insupportable; that she had defamed his character by charging him before a magistrate as being accessory to the crime of attempting to murder her; that she had purposely shot herself on the occasion averred by her in order to lay the basis for the slanderous charge against him; that she 'had previously brought two suits against him for divorce, both of which she had abandoned without trial; and that instead of the community being indebted to her, he was its creditor to the extent of one thousand dollars for money and property owned by him at the time of the marriage and which went into the community.

lie prayed for judgment in accordance with the averments of his answer.

The decision below was in favor of the plaintiff granting her a decree of separation from bed and board, dissolving in her favor the community of acquets and gains, giving her custody of the children of the marriage and directing that she recover of the husband twelve hundred and seventy-one and 60-100 dollars as her share of the community property.

Defendant appeals.

The case is one of fact. We may class the complaint of the wife under two heads:

1. Harsh and cruel treatment.

2. An attempt by the husband upon her life through a hired assassin lying in wait in the barn.

Both these charges are serious enough, but the enormity of the latter, if true, makes it an atrocious crime, for which the infliction even of the severest penalty known to the law upon the guilty culprit would be a punishment too light.

We have gene over the evidence found in the record with care and pains, and over the discussion of it in the briefs of counsel with close attention, but in this opinion, intended more as a statement of facts and of the conclusions arrived at, we decline to go into any lengthy ■discussion of the nauseous details of this narrative of marital infelicity.

There is a proneness on the part of masculine human jjature, from which even judges are perhaps not entirely exempt, to lean in sympathy to the side of the wife and mother in these cases of domestic •trouble and controversy. But even with this “coign of vantage” in her favor, we have been unable to reach the conclusion that this wife has made out her case, or is entitled to the judgment entered up in her favor below.

With regard to the alleged attempt upon her life by the husband, iin conjunction with a hired assassin, we reject the story in toto. There is neither any direct proof of it, nor yet any showing of a chain ni circumstances warranting a moment’s belief in its verity.

Not only that, but we regard it as disproven. We acquit the husband of any participation in it. The conviction, most unwillingly, is forced upon us that she shot herself, and that her motive was to manufacture a case against her husband, to the end of bringing him to punishment and enabling her to succeed in a purpose, long formed, and twice before attempted by proceedings in court, of securing a legal separation from him.

The wound was a slight flesh wound in the left fore-arm and shown by the evidence of a physician attending her to have been possible of self-infliction. The shooting occurred at the bam some sixty yards from, and towards the front of the house, occupied by the family. It was three o’clock in the afternoon. Miss Somers, a young lady friend of the wife who was visiting her, and the two children, were in the house at the time. The husband was in the field near by engaged in the work of hauling his cane to the sugar refinery. The railroad ran near and in front of the house, and nearer still to the barn. Neighbors lived oposite, across the railroad, not more than 250 yards away. Others (colored people) lived within 150 yards of the bam. The pistol from which the shot was fired was so close to the lady when fired that the sleeve, covering the arm, was powder-burned. She claimed she was shot while in the bam or crib looking for ■chickens, and that it was at the instance of the husband she had gone there looking for chicken's. This barn had but one door. After the .shooting she came out of this door crying “murder.” No one else was seen to come out of that door. She went over to the railroad and •to the house of John Brogdan just beyond. A physician and her husband were sent for. Both came. She accused the husband of

• conspiring to have her shot and wanted to go at once to a magistrate to sue out a warrant against him. She told Brogdan and others she had been shot by a negro named Tom Allen, who wore a green shirt, that he was concealed in the barn, and that after shooting her he ran out under the crib.

Brogdan and her brother, who had also come to where his sister was, .repaired to the barn to investigate.

They found no tracks leading in or out of the bam, or around it, • except those of the lady. Sugar cane grew near the barn. They went to this, taking row by row, searching for tracks, but found none. Inside of the barn they found much corn, but no place where an assassin could have been concealed. At one spot where there was little or no corn they found a small hole caused by one or two' planks being prized up, but this is shown to have been done some days before and the hole was entirely too small to conceal a man, or for a man to get into, and from the floor of the crib to the ground the space was only six or eight inches, entirely insufficient to enable a man either to effect an entrance into, or make his exit from, the crib through it. Before going to the barn Brogdan and the brother had been told by the wounded lady that two pistols were kept in her bed room, one on the mantel, another on a nearby shelf. She said one of these pistols was charged with five cartridges, the other with three. They went to the house, searched for these pistols, found the one with five chambers loaded, but did not find the other. They repaired then, a second time to the barn, and Brogdan, making a closer inspection of the hole in the floor, getting down and looking well into it, discovered a pistol lying back under one of the sleepers of the floor. He called to the brother, the pistol was taken out, examined, one shot was found to have been recently fired from it, and it was identified as the “other” pistol missing from the house. The brother, thereupon, declared his belief his sister had shot herself, and on going back to Brogdan’s house, which he and Brogdan immediately did, he told her she had shot herself, adding, “we don’t think you shot yourself with murderous intent, but you undoubtedly shot yourself.” This is the testimony of Brogdan, and while the brother does not commit himself so broadly in his testimony, he admits he thought she had shot herself.

Tom Allen, the colored man, was produced as a witness, and testified he did not do the shooting, that he was at work all that afternoon cutting cane, some 600 yards distant, with a number of other men, one of whom was Mr. Sessions, a white man, his employer. Sessions and others were called as witnesses and proved conclusively that Allen was with them all that afternoon from 1 o’clock until 6 o’clock.

Other facts might be detailed supporting the husband’s contention in regard to this shooting, but the foregoing will suffice.

The attempt on part of the wife to make it appear that it was he who had taken the pistol from the house and given it to the assassin, fails entirely.

With regard to the alleged harsh and cruel treatment of the wife by the husband, and of excesses on his part rendering their living together insupportable, the wife’s ease rests upon the testimony of Miss O’Q--. But her evidence is discredited in so many ways we can give little or no effect to it, and regard it altogether insufficient to support the judgment appealed from.

This lady is a distant relative of the defendant husband. She appears to have resided at the home of the Linzays for some five or six months, or until requested by him to leave. When she did leave,, she continued in the neighborhood, though her residence was in another parish. The wife, having also left the matrimonial domicile after the shooting at the barn, Miss O’Q-remained with her, was her close, intimate friend and ally, went with her to town to institute these legal proceedings, and it is plain that she was a witness greatly biased in favor of the wife and with strong prejudices against the husband. This, standing alone, would not render her testimony nugatory, though it would weaken its effect. But it does not stand alone.

We find her, in various and important particulars of her evidence, contradicted by Mrs. John Brogdan, by John Brogdan, by the two Barkers, by Miss Gertie Linzay and by James Linzay, all of whom testified in the case. It amounts to an impeachment of her testimony. Falsus in uno, falsus in omnibus.

Leaving it out, or giving it but scant consideration, the case of the-wife falls.

We would the case could end here, and by a denial of the demands-of each, leave this husband and wife where they have placed themselves, trusting to the mellowing influences of time to soften the asperities and allay the bitterness engendered between them, and pave the way to an ultimate reconciliation, always the more desirable where there are, as here; small children to rear, to train and to educate.

But the husband’s claim to a judgment of separation remains to be considered, and if well-founded we have no option and must sustain it.

In considering the wife’s case we have been obliged to hold, as to that branch of it relating to the attempt upon her life, that not only was there no attempt against her life by the husband or any one acting, with or for him, but that no attempt whatever by any one had been made against her life. And, further, that the shooting, as the result of which she was slightly wounded in the fore-arm, was her own intentional act, inspired by the motive to denounce her husband, to bring him to punishment, and to make a case against him for the dissolution of her marriage, with the resultant effect of awarding her the custody of the children and a part of the community property.

We find that following this shooting of herself, she did denounce-her husband to the officers of the law, made affidavit, charging him. with the crime and caused his arrest.

This was not only an unfounded charge, but she knew it to be unfounded, and it constitutes public defamation of the husband, and is-legal ground on his part for a judgment of separation. C. C. 138; Cass vs. Cass, 34 La. Ann., 611.

His case is, therefore, made out.

Separation from bed and board carries with it separation of goods and effects. 0. C. 155.

This means there must be between these spouses a settlement of community affairs as well as a dissolution of the community. We-will not disturb that portion of the judgment below which awards the-wife $1,271.60 as her share of the community property, and we think she is entitled to 5% interest thereon from the rendition of that judgment, as decreed by the court a qua.

The children of the marriage must be placed under the care of the husband, in whose favor the judgment of separation is awarded.

Such is the mandate of the law. 0. C. 157.

Even with the judgment as herein pronounced, the ease has not gone so far as to preclude the belief and hope that a reconciliation may yet be effected, and these spouses brought together upon a basis-of mutual forgiveness, forgetfulness and -forbearance, and of common interest in their children of tender years. The law wisely and humanely holds the door still ajar for them.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from, except as hereinafter stated, be annulled, avoided and reversed, and it is now ordered and decreed that the demand of the plaintiff herein for separation from bed and board from her husband, defendant 'herein, and for custody of the children of the marriage, be rejected.

It is further ordered, etc., that there be judgment in favor of •Charles Linzay, hu'sband, and against Minnie Linzay, wife, of separation from bed and board and of separation of goods and effects, and dissolving the community of acquets and gains existing between them, and placing under his care the two children, issue of their marriage.

It is further ordered, etc., that the wife, Minnie Linzay, be permitted to see the children and have such access to them as may be reasonable and advisable, under such regulations as to time, place, frequency, duration, etc., as may be made therefor by the court a qua, to which the case is remanded for that purpose, and for the execution •of this judgment.

It is further ordered, etc., that so much of the judgment appealed from as awards to the plaintiff herein h decree to recover from defendant twelve hundred and seventy-one and 60-100 dollars, with legal interest from December 3, 1898, until paid, as her share of the community property, be affirmed — costs of both courts to be taxed against plaintiff and appellee.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 12,817.
    C. B. Jones et al vs. Laura Jones et als.
    Syllabus.
    1. The familiar rule of evidence that parol testimony is inadmissible to affect, alter, or change title to immovable property is given interesting application herein.
    2. Likewise the rule of law relating to the prescription of tax titles and acta of sale translative of property, and relating .to estoppels by conduct as affecting minors after becoming of. age.
    3. Any creditor having an interest that prescription should be acquired by his debtor may plead it.

      ON. APPEAL from the Eighth Judicial District Gourt for the' Parish of Concordia, transferred from the Parish of Catahoula. Dagg, J.

      Lazarus, Moore & Luce for Plaintiffs, Appellants.

      Elam & Dale for Defendants, Appellees.
    Argued and submitted June 4, 1898.
    Opinion handed down June 24, 1898.
    Rehearing refused March 7, 1899.
   The opinion of the court was delivered by

Blanchard, J.

In August, 1889, Mrs. Laura Jones, widow of Charles-Jones, deceased, contracted a loan of thirteen thousand dollars from the Union Mortgage Banking and Trust Company, Limited, for which she executed her several promissory notes and to secure pay- ■ ment thereof mortgaged, by public, authentic act, the lands, with improvements, farming implements, etc., constituting the “Elmly” plantation, situated on Black River in the Parish of Catahoula, and containing 2705.69 acres, more or less. *

The earlier interest notes appear to have been paid, but there was default in the payment of the later ones, as well as in the one covering the principal of the indebtedness ($13,000.00), which matured August 14, 1894.

The Mortgage Company took out executory process to enforce its mortgage rights.

The sale of the property was arrested by injunction invoked by the mortgagor on grounds setting forth both the nullity of the mortgage, and the informality and illegality of the foreclosure proceedings.

The trial of this injunction suit resulted in a judgment in favor of the defendants, rejecting plaintiffs’ demand, dissolving the writ and directing the sheriff to proceed with the execution of the writ of seizure and sale.

No appeal appears to have been taken from this decree.

The sheriff proceeded with the execution and readvertised the property for sale on January 2, 1897, when he was again arrested by injunction, sued out by C. B. Jones and F. S. Jones, plaintiffs herein.

They are sons of Mrs. Laura Jones by her marriage with Charles Jones, and alleging themselves to be forced heirs of the latter, claim that his interest in the property was never legally divested, and that .at the time their mother contracted the mortgage under which the Elmly plantation was seized, they (plaintiffs) were, as heirs aforesaid of their father, owners of an undivided one-half interest in the property, and, hence, their right to arrest the sale by injunction.

We condense from their petition the case of these plaintiffs, as follows:

Charles Jones died in Catahoula parish in 1870, leaving an estate valued ■ at more than thirty thousand dollars; his succession was opened and a paper purporting to be a last will and testament in olographic form was admitted to probate, R. H. Cuney recognized and confirmed as executor thereunder and placed in possession of the succession property; an inventory and appraisement was made, but the same has disappeared and no record thereof can be found in the clerk’s office; Mrs. Laura Jones, their mother, was, in April, 1870, confirmed .as natural tutrix of plaintiffs, they being minors at that date, and R. H. Cuney was appointed under-tutor, though it is denied that he ever took the oath of office as such, and it is charged that the tutrix failed to cause an inventory of their property to be taken and recorded as required by law and because of this neglect her appointment became null and void. That in October, 1870, their mother, acting as agent and attorney in fact of Rosa and Ella Jones, major heirs of Charles Jones, and in her pretended capacity as natural tutrix of plaintiffs, instituted suit against Cuney, executor, attacking the will of Charles Jones as void, and praying to be placed in possession of the property of his estate in her said capacity as agent and tutrix; that this suit resulted in the validity of the will being maintained, but declaring that by its terms the seizin of the estate did not vest in the executor, who was ordered to deliver over to Mrs. Jones, as agent and tutrix, all of the succession property; that their mother, pursuant to said decree, took possession and control of the property, to-wit: the Elmly plantation and' its appurtenances; and that, in consequence, though not lawfully qualified as tutrix, she became subject to all the obligations as such and as negotiorum gestor. That in April, 1871, •their said mother, in her own name and right, instituted suit against ■Cuney in his capacity as executor of Charles Jones, deceased, and as -under-tutor of plaintiffs, and against Rosa and Ella Jones, major heirs of Charles Jones, in which she prayed to be recognized as sole owner of the Elmly plantation and for the setting’ aside and revocation of all acts and things that had been done militating against her ■claim of ownership; that in this suit the court decreed a certain judgment of separation of property rendered in the Fifth District Court ■of New Orleans in March, 1849, between Laura and Charles Jones, •dissolving the community between them, to be void; also that the sale of an undivided half interest of said Elmly plantation under said .judgment, at which Mrs. Jones became the purchaser, was likewise void, and that the subsequent acquisition by her from William Dunbar (co-owner), of the remaining half of the plantation was a community acquisition; also that the sheriff’s sale, in March, 1860, at which Charles Jones acquired title to the Elmly plantation, which had been seized in satisfaction of a judgment obtained at the suit of Lallande against Mrs. Laura Jones, was void; and lastly, the court decreed that the original sheriffs deed to Mrs. Jones of an undivided half of the property should stand as a dation era paiemeni and the other half be recognized as the property of Charles Jones.

That so far as they (plaintiffs herein) are concerned, the judgment in the suit last mentioned is void for the reason that Ouney, who was cited to represent them therein as under-tutor, was not such because never qualified, and that all acts done by him as under-tutor and by their mother as tutrix are void absolutely, because of said want of •qualification in the one case, and of want of registry of extract of inwentory in the mortgage book, in the other case.

That their mother is estopped from pleading the nullity of the .judgment rendered by the New Orleans court decreeing her separate in property from their father and dissolving the community, and that the Elmly plantation, having been lawfully acquired at sheriffs sale, in execution of a judgment against her. the same was, at the death of their father, his separate property and descended to his heirs in full fee simple. That the purchase of the property at tax sale in November, 3872, by C. J. Boatner was for account of Mrs. Laura Jones as the agent of the major and tutrix of the minor heirs of Charles Jones, and this was, later, shown by the transfer of the title by Boatner to Mrs. J ones; and, further, that the. tax adjudication to Boatner was, anyway, void because of want of previous demand for payment of the taxes, and because of insufficiency of description to'support the sale • of the property. That the transfer of the title by Boatner to Mrs. Jones was void because at the time she was acting as the tutrix and legal representative of plaintiffs and, though she had failed to qualify according to law, was disqualified and incapable of acquiring an adverse interest in property belonging'to them. That while C. B. Jones, one of plaintiffs, did in December, 1872, sell and convey to his mother his interest in the property, the deed was void for want of consideration, and, further, because said Jones was under age at the time and under the control and tutelage of his said mother and tutrix, and it was only recently that he was made aware of his incapacity to dispose of the property.

The Mortgage Company, the sheriff, and Mrs. Jones are made parties defendant and the prayer is that the judgment rendered in November, 1891,, in the suit of Mrs. Jones against Cuney, executor and under-tutor, and others, be decreed void so far as the same affects-them (plaintiffs); that the Elmly plantation be decreed to have been the separate estate of Charles J ones and to have descended as such to-plaintiffs as his forced heirs, to the extent of an undivided one-half' thereof; that the tax sale to Boatner, the conveyance from him to Mrs. Jones, and the pretended sale by O. B. Jones to her.be all declared void; and that the injunction against the sale under the foreclosure proceedings be perpetuated, etc.

The Mortgage Company make answer denying that plaintiffs own any part of the Elmly plantation, aver the same to be the property of Mrs. Jones; that she was decreed owner of an undivided half thereof by judgment rendered in November, 1871, in her suit against Cuney as executor and under-tutor; that in October, 1872, she purchased the interest of Rosa and Ella J ones (her daughters) in the property; that in December, 1872, she purchased the interest of 0. B. Jones (her son) in the same; that in November, 1872, the tax collector sold and adjudicated all of the interest of the estate of - Charles J ones in the plantation at tax sale to C. J. Boatner after full compliance with all legal' requirements, which title was subsequently duly confirmed to and in said Boatner by the Auditor of the State, after expiration of the redemption period, that the Auditor’s deed had the effect of making-absolute and perfect the title of said Boatner, and that all parties are-forever estopped from contesting its validity, which estoppel is specially pleaded against plaintiffs in injunction; that in February, 1875, Boatner conveyed the Elmly plantation for good and sufficient consideration, to Mrs. Jones, by conveyance valid in form and translativeof the property; that all of the several transfers, acts of sale and conveyances were duly and seasonably recorded in the conveyance records of the parish where the plantation was situated; that both plaintiffs knew at the time of this purchase and made no objection- thereto, and have since made none until now; that their mother, ever since her purchases as hereinbefore set forth, has been in the actual possession of the property as owner, resided thereon in that capacity, and the same has been, ever since the purchase from Boatner, assessed for taxation solely in her name, and her possession has been open, constant, and peaceable as owner for more than twenty years to the knowledge and with the acquiescence of plaintiffs, who have permitted her to deal with the public generally as owner, and are thereby estopped from assserting any claim as owners thereof; and that as such owner,. Mrs-Jones executed the mortgage to the respondent company to secure the' large sum of money borrowed by her, which she received and used-Alleging the validity of the tax sale to Boatner and 'that of all of the other titles by which Mrs. Jones acquired and bolds the plantation, they plead the prescriptions of one, two, three, five and ten years against any right of plaintiffs in injunction to bring any action at all to set aside the tax sale, or disturb the same on account of any alleged' informality, irregularity or nullity. But if the tax sale be not valid, reserving all legal rights, they plead in the alternative the validity and; binding force of the judgment rendered in November, 18J1, in the-suit of Mrs. Jones against Ouney, executor and under-tutor, and' others, and interpose the same prescriptions against any action to-annul same, as well as the plea of res adjudicaba. They plead the same prescriptions against all demands of O. B. Jones to question or annul' the conveyance made by him to his mother. In the event the judgment in the suit of Mrs. Jones against Ouney, executor, etc., aforesaid, be not maintained as valid, they ask that all rights be reserved to' them (respondent company) to show that the alleged and pretended’ purchase by Charles Jones of the property under the judgment’rendered in the suit of Lallande vs. Mrs. Jones was null and void and’ did not divest the ownership of Mrs. Jones in the property. They setup that the mortgage company has paid the taxes due upon the property for the last several years and took subrogation of the State’s/ rights; that plaintiffs have never exercised any ownership of the property; that their claims now set up are pretended and fictitious, asserted merely for the purpose of gaining time .on this indebtedness for?. their mother, whose prior injunction of the sale of the property under the mortgage had been dissolved. Reserving the right to sue upon the injunction bond for damages, respondent company pray for rejection of the demand of the plaintiffs, that Mrs. J ones be decreed the legal owner of the property, that the injunction be dissolved, the company’s mortgage recognized and the sale thereunder to satisfy the indebtedness be allowed to proceed.

answer was filed by the other defandant, Mrs. Laura Jones.

Upon the issues presented by the answer of the Mortgage Company, .'judgment was rendered rejecting the demand of plaintiffs, dissolving • the injunction and ordering the sheriff to proceed with the execution ..of the writ.

Plaintiffs appeal.

It is not disputed that from the date of her purchase from C. J. "Boatner, Mrs. Jones had actual possession as owner of the plantation sup to the time it was seized by the sheriff under the foreclosure proceedings instituted by the Mortgage Company, and cultivated it during the time of this possession for her own account. It also appears that she paid all the taxes on the property, except those paid by the Mortgage Company, and that the plaintiffs never had possession of the plantation, never enjoyed any of its revenues, were never held er considered during this time as owners of any part thereof, no taxes therefor were ever assessed in their name and they never paid any taxes. It is in evidence that C. B. Jones was born on December 24, 1852, and E. S. Jones on February 5, 1860. So that when the former .sold his interest in the Elrnly plantation to his mother on the 5th of December, 1872, he had not reached his majority by about one year. He became of age, however, on December 24, 1873, and from that date to the time of the filing of this suit twenty-three years had elapsed, during all of which time he remained in quiet acquiescence in the sale lie had made to his mother. He was at the time of the conveyance temporarily sojourning in Europe. He never returned to the plantation and has never asserted any ownership in it until now. He ■permitted his act of sale to his mother to stand of record unchallenged. It was in terms sufficient to convey the property, and set forth a valu-able consideration, which the evidence sustains. There was nothing 'in the act to indicate he was not twenty-one years of age when he executed it. At the time C. J. Boatner conveyed the property to Mrs. -Jones, after his purchase of it at tax sale, C. B. Jones was more than •twenty-one years of age. His mother was no longer his tutrix then, •and over twenty years had elapsed from the date of that sale to the filing of this suit, during all of which time he questioned neither the .tax title acquired by Boatner nor the conveyance made by the latter to his mother.

Under these circumstances there can be no doubt of the applicability as -to him of the prescriptions invoked by the Mortgage Company. C. C. 3542; 47 A. 1042; 3 A. 328. He is without color of title to any interest whatever in the property.

E. S. Jones was fifteen years of age when Boatner conveyed the property to Mrs. Jones. But he became of age on February 5, 1881, and from that time down to the filing of this suit, a period of nearly sixteen years, he took no steps to contest the title Boatner had acquired at the tax sale, nor the conveyance he made of the property to Mrs. Jones. The tax colector’s deed to Boatner states that twenty days’ written notice to pay the. taxes assessed against the property, was given both to R. H. Ouney, executor of the estate of Charles Jones, and to Laura Jones, as agent of the major heirs of the said Jones, and as tutrix of his minor children, and said parties having failed to pay the same within the legal delays, he proceeded to seize, advertise for sale and sell the property, to-wit: the Elmly plantation, describing it by legal subdivisions, assessed as the property of the estate of Charles Jones, deceased, and the same was adjudicated to said Boatner, who .was the last and highest bidder, and to whom formal transfer and conveyance of the property was made and recorded. There is nothing whatever in the act of sale to indicate that Boatner was purchasing for any other than himself. And when the Auditor of the State came to confirm the sale, which he did on the 10th of Mraeh, 1875, two years and four months after Boatner’s purchase at the tax offering, he did so by formal act fully and absolutely conveying the property to him, his heirs and assigns forever — no mention being-made that he -had acted for any one else in purchasing at the tax sale.

It is true that just before the Auditor acted, to-wit: on the 2nd of February, 1875, Boatner had executed an act of sale of the property to Mrs. Jones, so that the Auditor’s confirmation of his title enured fo her benefit. In his sale to Mrs. Jones it is recited that he sells, transfers and delivers to her all his right, title and interest in and to the property, describing it fully, not warranting the title, but selling ■such title as he had for the consideration of twelve hundred and fifty dollars acknowledged to have been received; Again is no mention made of his having bought the property originally for any one other than himself. This sale was not merely a quit-claim deed. While-warranty was excluded, it was a formal conveyance amply sufficient in terms to transfer the property as from one owner to another.. While it was an act under private signature it was duly acknowledged before the Recorder of the parish and admitted to registry in the. conveyance records. Called as a witness for plaintiffs, Mr. Boatner testified that in the purchase of the Elmly plantation at tax sale he-acted as the agent of Mrs. Jones and her children, that the taxes were-paid out of the proceeds of the sale of succession property, and that in transferring the plantation to Mrs. Jones he received no other consideration than the ratification by her individually and as agent of the succession property he had sold to obtain funds to pay the taxes-

Seasonable objection to this testimony was made on behalf of the: Mortgage Company on the familiar ground that parol evidence is inadmissible to affect, alter or change title to immovable property; that written evidence only can be received to- affect the ownership of such property; and that the rights of defendant company could not. be jeopardized by such testimony. The objection being overruled, exception was made and a bill reserved.

There was error in this ruling. The testimony should not have-been received as against defendant company, and we can permit no-effect to be given to it. There is nothing in the record to impugn the regularity and legality of the tax sale to Boatner. It must stand as a valid acquisition of the property by him. Constitution of 1868, Art. 118. It divested whatever title or interest the estate of Charles Jones- and his heirs had in the Elmly plantation, and the prescriptions invoked by the Mortgage Company in aid of the tax title must be sustained as against both plaintiffs. Barrow vs. Wilson, 39 La. Ann. 409; 42 A. 918; 41 A. 816, 415; C. C. 3543. Any creditor having an interest that prescription should be acquired by his debtor may plead it. C. C. 3466; Giddens vs. Mobley, 37 La. Ann. 900; 1 La. Ann. 330; 6 La. Ann. 342.

As to the contention of F. S. Jones that his mother’s purchase from Boatner must be considered as having been made for, and enuring to-his benefit, to the extent of his interest as heir, since she was holding-at the time the capacity of tutrix to him and therefore could not. acquire an interest adverse to him, if it have any force at all it can be asserted only as against her in a contest between them. See C. C. 1146; Bland vs. Lloyd, 24 La. Ann. 603; Pagett vs. Curtis, 15 La. Ann. 451; Carter vs. McManus, 15 La. Ann. 641. It can not be held to have any force or effect as against the Mortgage Company, who acted on the faith of the public records, which showed title in Mrs. Jones alone. F. S. Jones, by permitting her title from Boatner to remain of record unchallenged for years after he had reached his majority and after his mother had ceased to be his tutrix, is estopped to assert an interest antagonistic to those who had acted on conditions he himself contributed to bring about. 32 A. 420; 47 A. 49; 48 A. 1160; 34 A. 1017. Judgment affirmed.


author: Nioholls, O. J.

text:
    No. 13,076.
    Compagnie Francaise de Navigation a Vapeur vs. State Board of Health, et als.
    Syllabus.
    The General Assembly of this State, in enacting Act No. 192 of 1898, creating a State Board of Health and defining its powers and duties, was not acting or claiming to act under “a power to regulate commerce,” as the source from which it derived the right to pass the act. Its source was the police power of the State, exercised for the protection and preservation of the public health.
    Section 8 of the act, authorizing the State Board of Health, at its discretion, to prohibit the introduction into any infected portions of the State of persons, acclimated, unacelimated, or said to be immune, when in its judgment the introduction 'of such persons would add to or increase the prevalence of the disease, is not unconstitutional as infringing upon the right and power of Congress to regulate commerce, or in contravention of treaties with Prance and Italy, or of the immigration laws of the General Government, or of any rights secured by the fourteenth amendment of the Constitution of the United States. (In re Rahrer, 140 U. S., 554 ; Gibbons vs. Ogden, 9 Wh. 203.)
    ■Nor is the Act No. 192 of 1898, unconstitutional as violative of Article 31 of the State Constitution of 1898, which declares that “every law enacted by the General Assembly shall embrace but one object, and that shall be expressed by its title.” The authority to the Board of Health to prohibit the introduction into any infected portion of the State of persons acclimated, unacclimated, or said to be immune, from coming on shipboard from any foreign countries and ports whether infected or not, when in the Judgment of said Board the introduction of such persons would add to or increase the prevalence of the disease, could very legitimately be referred to several clauses of the title of the Act. It would be very properly covered by its declared object of “carrying into effect Article 296 of the Constitution of the State, providing for the establishment and organization of a State Board of Health, and defining the power, duty and authority of said Board”; or its object “of protecting and preserving the public health,” or “of authorizing the regulation of the isolation of infectious and contagious diseases.” (Allopathic State Board vs. Fowler, 50 Ann., 1358; 23 Am. & Eng. Encye. of Law, p. 229 et seq.; Cooley’s Const. Lim., 175; State vs. Crowley et als., 38 Ann., 783 ; State vs. Dalon, 35 Ann., 1141; American Printing. House Co. vs. Dupuy, 37 Ann., 188.)
    ON APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Rowe, Spencer & Coche for Plaintiff and Appellant.

      F. 0. Zacharie for Defendants, Appellees.
    Argued and submitted February 20, 1899.
    Opinion handed down March 23, 1899.
    This case is pending on Writ of Error before the Supreme Court of the United States.
   The opinion of the court was delivered by

Nioholls, O. J.

This case is before us on an appeal by the plaintiffs from a judgment of the Civil District Court, sustaining an exception of no cause of action, filed by the defendants, and dismissing their suit.

Plaintiffs’ demand is set out in two petitions.

In the first of these petitions they alleged that they were a corporation created by and existing under the laws of the Republic of France, and the owner of a large number of steamships, and were engaged in-the business of transportation of freight and passengers for hire from various ports on the Mediterranean Sea to various ports in the United" States, and more particularly to the port of New Orleans. That petitioners were more particularly the owners of the steamship “Britannia,” which was engaged in the transportation of freight and passengers between the ports of Palermo and Messina, Italy, and the port of New Orleans, in the State of Louisiana.

That the defendant, the State Board of Health, was a body created’ by Act No. 192 of the General Assembly of the State of Louisiana, of the year 1898, with power to sue and be sued, domiciled in this city and composed of seven members, whose duty it was by the provisions of said act to protect and preserve the public health by preparing and promulgating a sanitary code for the State of Louisiana, by providing for the general sanitation of the State, and with authority to regulate infectious and contagious diseases, and to prescribe a maritime and land quarantine against places infected with such diseases.

That the other defendants to their suit, to-wit: Edmond Souchon, J-Iampden S. Lewis, and Charles A. Gaudet, were members of said Board, and residents and citizens of the parish of Orleans.

That in the course of petitioners’ said business of transporting freight and passengers from ports on the Mediterranean sea to porta in the United States, petitioners caused their steamship “Britannia,” on or about the second day of September, 1898, to be cleared from the ports of Palermo, Italy, and Marseilles, France, for the port of New Orleans, with a cargo of about one hundred tons of general merchandise, and with about four hundred and eight passengers; said freight being destined for the port of New Orleans, State of Louisiana, and some of said passengers were persons designing and intending to enter the United States through the port of New Orleans for the purpose of settling in the State of Louisiana and adjoining States, and some were citizens of the United States and residents of the State of Louisiana, who were returning to their homes.

That said passengers were in all respects, at said time, and ever since, free from infectious or contagious diseases of any kind, and were free from any such diseases at the time of the arrival of said steamship at the quarantine station established by the defendant, the State Board of Health, some distance below the city of New Orleans, on the Mississippi River, about eight o’clock a. m., on the twenty-ninth (29th) day of September, 1898. That on the- same day, in accordance with the regulations of said defendant, the State Board of Plealth, said vessel was regularly inspected and her freight and passengers examined by the officers of the said Board of Health, and it was found that her passengers and cargo were entirely free from any infectious or contagious disease, or from any disease which was likely to affect the health of the people of New Orleans, or the State of Louisiana, and accordingly, she was given a clean bill of health.

That notwithstanding this fact, and although under the rules and regulations of said defendant, the State Board of Health, said vessel .-should have been permitted to at once proceed to her destination at .the port of New Orleans, and there to discharge her cargo and passengers, and notwithstanding that her said cargo and passengers continued free of all infectious or contagious disease, or any disease likely to affect the health of the people of said city or State, and although said vessel had complied with all the regulations of said Board, said ,State Board of Health, on the twenty-ninth (29th) day of September, .1898, at a session convened at its office in the city of New Orleans, ••whereat the following members were present, voting affirmatively and .assenting to it: Edmond Souchon, Charles A. Gaudet and Hampden B. Lewis, passed a resolution prohibiting, in effect, the said vessel from coining into the port of New Orleans, and there discharging its passengers, certified copy of which resolution they annexed and made part of their petition. That, in pursuance of this resolution, Dr. Edmond Souchon, President of the State Board of Health, served a notice on the agents of petitioner, (James Sawyers & Son) prohibiting •the landing of said steamship at the port of New Orleans, and at the •various other places mentioned therein, for the purpose of discharging :said passengers, and, subsequently, the president of said State Board •of Health notified the agents of petitioner, that if they attempted to land said passengers at any place contiguous to the port of New Orleans, not at that time quarantined, that quarantine would, at once, he established at such place, and that said passengers would not be allowed to land there. That said prohibition virtually applied to all the territory within one hundred miles of the port of New Orleans, and in effect debarred said steamship from landing at any place in the ■State of Louisiana for the purpose of discharging said passengers, •and petitioners annexed and made a part of their petition, the notice •as received from said State Board of Health.

They averred that while said resolution, on its face, purported to be •general in its character, that as a matter of fact same was passed for the specific purpose of prohibiting and preventing said steamship '“Britannia” from landing- in the State of Louisiana, and discharging ■said pasengers therein; inasmuch as for some time prior thereto, and ■even subsequent to the passage of said ordinance, said Board of Health had permitted large bodies of persons coming directly from the same ports in Italy and Sicily via the port of New York, to be brought into the city of New Orleans by various railroad companies, and ever since the promulgation of said ordinance more than two hundred such persons, varying' in groups of from thirty to one hundred in number, had, from time to time, been permitted to enter said city.

That said State Board of Health pretended to base its_ right to thus exclude persons in good health and not affected with any contagious •or infectious disease from the port of New Orleans and neighboring •territory, upon the authority of said Act No-. 192 of 1898, and especially under the following portion of Section eight (8) of said Act, -•to-wit:

“The State Board of Health, in its discretion, may prohibit the introduction into any infected portion of the State of persons acclimated, unacclimated or said to be immune, when in its judgment the introduction of such persons would add to or increase the prevalence 'of the disease.”

That said portion of said section eight (8) of said Act No. 192 of 1898, did not confer upon the State Board of Health the right to •exclude healthy persons from coming from various foreign ports into the port of New Orleans, as pretended by them, and if said section did so confer upon said Board said pretended right and authority, same was in violation of the Constitution of the United States, inasmuch as it was an attempt on the part of the State of Louisiana to regulate •or prohibit commerce from foreign countries into the United States, or to authorize the regulation or prohibition thereof by said Board, and was especially in contravention of Article 1, paragraph eight (8), section three C3), thereof, which provided that Congress shall have exclusive power to regulate commerce with foreign nations and among the several States; and petitioners specially pleaded and claimed the benefit and protection of said provision of the Constitution.

Petitioner averred that this arbitrary and illegal action of the State Board of Health and the individual members thereof, by detaining said vessel at the quarantine station and preventing her from proceeding to the city of New- Orleans and there discharging her passengers and cargo, had caused great damage, and was causing and would continue to cause petitioners further damage to an amount of more than five hundred dollars, for every day that said vessel was prohibited from discharging said passengers, for the reason that by law and by contract, petitioners were compelled to furnish said passengers with lodging and with food, and besides, were subjected to a heavy expense in the way of wages for its crew and officers, and various other and sundry expenses which they would not be compelled-to suffer were they permitted to land said vessel and discharge its-passengers and cargo as they had a right to do. That said arbitrary and illegal action of said Board and the members thereof would cause petitioners to suffer heavy damages in the way of loss of business, for the reason that the agents of said steamship in the city of New Orleans had procured for and bound said ship to receive a large and complete cargo of freight destined for ports in Europe, for all of which damage the defendants were liable in solido to petitioners. That by reason of said arbitrary and illegal action of said board and the members thereof, petitioners had already suffered damages from the cause aforesaid, in the sum of twenty-five hundred dollars, and they reserved their right to amend their petition and claim of said Board and the members thereof in solido any further damage which they might suffer in the premises.

That unless said State Board of Health be restrained by the court-it would persist in its illegal and arbitrary refusal to permit said steamer to land said passengers in the city of New Orleans, to the great and irreparable injury of petitioners, and petitioners averred that for the protection of their rights in the premises they were entitled to and desired a writ of injunction directed against the said' Board of Health, its officers, and agents, prohibiting and enjoining them and each of them from interfering with or preventing the landing of said steamship at the port of New Orleans, and from unloading and discharging its passengers.

In view of the premises petitioners prayed that said State Board of Health, its president, and said Edmond Souehon, Hampden S. Lewis: and Charles A. Gaudet, be cited; that a writ of injunction issue directed to said Board of Health, enjoining and prohibiting it and its officers, agents and employees, and each of them, from enforcing said resolution or ordinance of said Board, of date twenty-ninth (29th) September, 1898, or from prohibiting or interfering, in any manner, with petitioners’ bringing their said steamship “Britannia” to the port of New Orleans, and there discharging its passengers and cargo; that there be judgment in favor of petitioners and against said State Board of Health and Edmond Souehon, Hampden S. Lewis and Charles A. Gaudet in solido in the full sum of twenty-five hundred dollars damages, with legal interest from judicial demand, and reserving unto petitioners the right to claim from said defendants any-further damages which they might thereafter be caused by their said-illegal acts; that said portion of section 8 of said Act No. 192 of 1898, set forth, be declared null and void, as being in contravention of the Constitution of the United States, and that said writ of injunction be made perpetual.

In the second of these petitions, they alleged that since the filing of the original petition they had suffered additional damages as therein-after set forth in a sum exceeding eight thousand, five hundred dollars, for which, for the reasons set forth in their original petition, and in said second petition, the defendants were liable to them in solido— that said damage was occasioned by reason of the illegal, unjust, and arbitrary action aforesaid of said State Board of Health, and said individual members thereof in the exclusion from tíre city and port of New Orleans of said vessel and passengers, some of whom were subjects of the King of Italy, entitled to the protection of the treaties between said sovereign and the United States, and who intended to avail themselves of the laws of the United States regulating immigration by entering the State of Louisiana to establish residence in said State or adjoining States. That said immigrants and other passengers were so excluded and prevented from landing, notwithstanding the fact that said steamer Britannia had complied with all the laws of the United States regulating commerce with foreign nations, quarantine and immigration into the United States, and notwithstanding that said immigrants were coming from ports which were not infected with any contagious or infectious disease, and were not themselves infected with any such disease, but were, at the time of their departure, and at all times thereafter, free from any infectious or contagious diseases, or diseases that were likely to affect the public health of the citizens of New Orleans, or State of Louisiana, and were, under the immigration laws, entitled to enter. That petitioners had no notice of the intended action of the defendant in so prohibiting the landing of said passengers and immigrants until the arrival of their steamer “Britannia” at the port of New Orleans, said' steamer having sailed prior to the declaration by said Board of the-existence of an infectious disease in the city of New Orleans.-

That by reason of the illegal and arbitrary conduct of the defendants, petitioners were compelled for many days to keep said vessal moored in the river below the city of New Orleans, with all of its said pasengers, crew and cargo aboard. That as said defendants persisted' in their said illegal and arbitrary refusal to permit the landing of said immigrants and passengers, in order to minimize as much as possible its damages, petitioners were compelled to send their said steamer to the port of Pensacola, Florida, which was the nearest available port to the port of New Orleans, and there disembark said immigrants and passengers, and thereafter to cause their said steamer to return to the port of New Orleans to discharge its cargo. That said voyage to and from Pensacola, from and to New Orleans, so occasioned, caused a loss of time to said vessel, even with the utmost dispatch, of more than three weeks. That during the illegal detention of said vessel in the Mississippi River, and during the voyage to Pensacola, and while in .said port, petitioners were at great expense in the maintenance and care of said immigrants, passengers and crew of said vessel. Moreover, petitioners suffered great damages, as would be shown on the trial of the case, in the way of extra wages of officers and crew, extra fuel and supplies consumed on said voyage between New Orleans and Pensacola, as v ell as during the said illegal detention, extra compensation to its agents in this city of New Orleans and at Pensacola, cablegrams and other expenses. Furthermore, petitioners had ■suffered large damages by reason of the fact that said vessel thus lost more than twenty-one days on the voyage from her home port and return, which delay occasioned petitioners a large loss both of business and profits, and the damages thus occasioned to petitioners by said illegal and arbitrary action of said defendant exceeded in the aggregate the sum of eleven thousand dollars, and said damages were caused solely by said illegal and arbitrary action of said Board, and not otherwise. That said action of said defendants in prohibiting the entrance and landing of said passengers and immigrants in the port of New Orleans and the State of Louisiana, was moreover in violation of the laws of the United States and the rules and regulations made in pursuance thereof relating to quarantine at and immigration from foreign countries into ports of the United States, and especially acts of 'Congress approved February 15th, 1893, and the rules and regulations made in pursuance thereof; and acts of Congress of March 3rd, 1882, and June 26th, 1884, and the rules and regulations made in pursuance thereof, and of the treaties existing between the United States, on the one part, and the Kingdom of Italy and the Republic of France, on the other part, and petitioners specially pleaded and claimed the “benefit of said acts and treaties.

The premises considered, petitioners prayed that defendants be cited; that there be judgment in favor of petitioners and against the said defendants as in their original petition prayed for, and further, that there be judgment in favor of petitioners and against the defendants in solido in the full sum of eleven thousand dollars, with legal interest from judicial demand.

Annexed by plaintiffs to their petition was a copy of the resolution of the Board of Health, and of the notice served upon plaintiffs, which they had referred to in their pleadings. The notice reads as follows:

“Louisiana State Board of Health, “September 29th, 1898.

“Messrs. Jas. Sawyers & Son,

“Agent S. S. Britannia, New Orleans, La.

“Gentlemen: — Referring to the detention of the S. S. Britannia at the Miss. River Quarantine Station, with 408 Italian immigrants on board, I have to inform you that under the provisions of the new State Board of Health Law, Section 8, of which I enclose a marked copy, this Board has adopted a resolution forbidding the landing of any body of people in any town, city or parish in quarantine. Under this resolution the immigrants now on board the Britannia cannot be landed in any of the following parishes of Louisiana, namely, Orleans, St. Bernard, Jefferson (right bank), St. Tammany, Plaquemines, St. Charles, or St. John. You will therefore govern yourself accordingly.

“Respectfully,

(Signed) “EDMOND SOUCHON, M. D.,

“President Louisiana State Board of Health.”

The resolution read as follows:

“Resolved, That hereafter, in the case of any town, city or parish of Louisiana being declared in quarantine, no body or bodies of people, immigrants, soldiers, or others, shall be allowed to enter said town, city or parish, so long as said quarantine shall exist, and that the president of the Board shall enforce this resolution.”

Opinion.

At the time of the adoption of the Constitution of 1898, there existed in the State of Louisiana, a State Board of Health, with powers and duties defined and fixed by law.

Article 296 of that Constitution directed that the General Assembly should create for the State, and for each parish and municipality therein, Boards of Health, and should define their duties and prescribe the powers thereof.

On the 14th of July, 1898, the Governor of the State approved Act No. 192, enacted by the General Assembly at the session of 1898. The act was entitled “An act to carry into effect Article 296 of the Constitution of the State of Louisiana, in relation to Boards of Health; to protect and preserve the public health; to provide for the establishment and organization of a State Board of Health and parish and municipal Boards of Health; to define the powers, duty and authority of said Boards; to provide for the appointment and election of officers, and employees of said Board; to authorize the State Board to prepare and promulgate a sanitary code for the State of Louisiana, and fixing penalties for the violation thereof; to provide for the general sanitation of the State, and a local sanitation of the parishes and municipalities; to authorize the regulation of the isolation of eases of infectious and contagious diseases, and a maritime and land quarantine . against places infected with such diseases; to repeal all laws and parts of laws, special and general, in conflict with the provisions of this act;

. and to provide for the succession of the Boards created by this act to all powers, authority, rights, claims and property of the present Boards.”

By the second section of the act the duties and powers of the president, and secretary, and treasurer of the State Board were declared to be those incident to like officers in similar corporations, and also such other powers and duties as then devolved by law upon their predecessors in the existing Board, as well as those additionally prescribed by the provisions of the act. In addition to said powers and duties .already prescribed by existing laws, the president was granted the power after the adjournment of the Board, and during the interval of time between the meetings of the Board, and when the Board was not in session, to issue all orders and warrants and to take all necessary steps to executo the sanitary laws of the State and to carry out the rules, ordinances and regulations of the Board made therein, and in his discretion, to call special meetings of the Board, whenever, in his .opinion, an emergency should require it.

By the third section, the Board was granted all the powers, .authority and jurisdiction then possessed by the existing Board of Health under the laws then in force, except in so far as modified and changed by the provisions of the new law.

It was given exclusive jurisdiction, control, and authority, over maritime quarantine within the State, as then provided by existing laws.

It was also given supervisory power over land quarantine and over the care and control of infectious and contagious diseases within the ■State, in order to accomplish the subsidence and suppression thereof, and to prevent the spread of the same; such supervision and control was directed to be exercised in the manner and to the extent laid ■down in the act.

By the eighth section, it was enacted, that in case any parish, town, or ctiy, should become infected with any contagious or infectious ■disease, to such an extent as to threaten the spread of such disease to other portions of the State, the State Board of Health was directed ■to issue its proclamation declaring the facts and ordering it in quarantine, and to order the local Boards of Health in other parishes, towns, and cities, to quarantine against said locality, and it was further •directed to establish and promulgate the rules and regulations, terms, and conditions, on which intercourse with said infected locality should be permitted.

The State Board of Health was authorized, at its discretion, to ■prohibit the introduction into any infected portions of the State of ■persons, acclimated, unacclimated, or said to be immune, when in its judgment the introduction of such persons would add to or increase the prevalence of the disease.

Plaintiffs contend that the State Board of Health requires that the court should read in the eighth section of Act No. 192, of 1898, a grant of authority to prohibit the introduction into the State of ■healthy persons coming from places not infected with infectious or contagious diseases.

In their brief they say: “If this was the intention of the legislature, why did it express its objects to be ‘to authorize a maritime and land quarantine’ against places ‘infected’ with contagious or infectious diseases ? If an authority was intended to be given to establish maritime quarantine against any place whatsoever, without reference to the existence of disease there, the Legislature would certainly not "•have qualified the noun ‘places)’ by the adjective ‘infected.’

“It is clear that the effect of that adjective is to qualify and make special, what was before general; to limit the number, and, as it were,, to put a badge upon the places against which maritime quarantine can be declared, and hence to put a restriction upon the power of 'the Board.

“If the existence of disease, at some place, or in relation to some individual, was not a condition upon the Board’s power to quarantine,. it inevitably follows that the act contains something supremely important, not expressed in its title, namely, a power to quarantine against any place and exclude from the State any people whatsoever,, totally irrespective of the existence of infectious or contagious disease, in relation to such person or place.

“We submit that the court will not adopt a course of reasoning which leads to this result.

“It must presume that the Legislature intended to obey Article 31 of the Constitution and to sanction no object in the act not expressed in the title. A fortiori will the court indulge the presumption when it finds that the title of the act declares the intention of conferring a limited and defined, as opposed to, a general power, as the Legsiature ■ was bound by the Constitutional mandate to do; that the measure of' the power granted in relation to maritime quarantine is declared by the act to be fixed by existing laws in force, which laws are conceded by the contention of the defendants in this case to confer only a limited power, and plaintiff urges that if the statute of 1898 did authorize the State Board of Health to exclude from this State healthy persons coming from other States or from foreign countries, it was not a lawful exercise of the legislative power by the State of Louisiana.

“That the statute, on its face, and as applied, is void for the reason that it is in violation of Article 1, Section 8, of the Constitution of' the United States, because it vests authority in the State Board of Health in its discretion to interfere with or prohibit foreign commerce; because it deprives the plaintiff of its liberty and property without due process of law and denies it the equal protection of the law in violation of Section One of the Fourteenth Article of Amendment of the Constitution of the United States.

“Because, it denies rights, privileges, and immunities, secured to subjects of the King of Italy, and to the citizens of the Republic of France by treaties between the United States and said countries, in-that it vests the Board of Health with power to deny the right of free-visitation and trade to Italian subjects and French citizens, as; granted by said treaties.

“Because it is in conflict with the immigration laws of the United States, made in pursuance of the Constitution of the United States.”

We would not render Act No. 192 of 1898, unconstitutional as violative of Article 31 of the Constitution of 1896, which declares that “every law enacted by the General Assembly shall embrace but one object, and that shall be expressed by its title,” by holding that that act conferred authority upon the State Board of Health to prohibit the introduction into any infected portion of the State of persons acclimated, unacclimated, or said to be immune, coming on ship board irom foreign countries and ports, whether infected or not, when in its judgment the introduction of such persons would add to or increase the prevalence of the disease.

Were we to hold that the act conferred such power, the granting of the power in the body of the act could be very legitimately referred to several different clauses of the title.

It would be very properly covered either by its declared object of “carrying into effect Article 296 of the Constitution of the State in relation to Boards of Health; providing for the establishment and organization of a State Board of Health, and of defining the power, duty and authority of said Board”; or its object “of protecting and preserving the public health,” or “of authorizing the regulation of the-isolation of infectious and contagious diseases.”

We have ourselves recently held, in the ease of Allopathic State Board of Medical Examiners vs. Fowler, 50th Ann., that it is a sufficient compliance with the constitutional requirements of the title if' the title indicates the general purposes of the law without specifying-in detail each particular provision of the law.

(See on this subject, 23rd Vol. Am. & Eng. Ency. of Law, page 229 et seq.; Cooley’s Constitutional Limitations, page 173; State of Louisiana vs. Crowley, Nolan, Giles, and Bertin, 33rd Ann. 783; State vs. Dalon, 35th Ann. 1141; American Printing House vs. Dupuy, 37th Ann. 188.)

Appellants urge upon us that the General Assembly did not intend' by and through Act No. 192 of 1898, to confer upon the State Board' of Health the power which it exercised, of preventing them from landing the “Britannia” and its passengers, as stated in their-petition, nor did it do so.

We do not think this proposition well founded; there is nothing in the terms of the statute which would justify us in giving to it the narrow construction for which plaintiffs contend.

The fact that the title contains a clause to authorize a “maritime and land quarantine against places infected with infectious and contagious diseases,” is not inconsistent with, nor does it control or circumscribe the broad and general terms of other clauses.

Appellee properly claims that it in no wise affects the “power,” “duty,” and “authority,” of the Board to prevent the spread of the ■disease when once introduced by quarantining against persons coming into an infected district.

The act, in its title, authorizes the State Board to regulate the isolation of cases of infectious and contagious diseases, leaving it to adopt the method to be pursued for bringing about this isolation,

. In its body, it confers in very broad terms, a supervisory power Over the care and control of infectious diseases within the State “in order to accomplish the subsidence and suppression thereof and to prevent the spread of the same.”

That no doubt could exist as to the scope of the power, it conferred upon the Board “the right to regulate the terms and conditions on which intercourse with infected localities should be permitted,” and in clear, unambiguous, language, authorized it, at its discretion, to prohibit the introduction into any infected portion of the States of persons acclimated, unacclimated, or said'to be immune, when, in its judgment, the introduction of such persons would add to or increase the prevalence of the disease.

The law does not limit .the Board to prohibiting the introduction of persons from one portion of the State to another, and an infected portion of the State, but, evidently, looked as well to the prohibition of the introduction of persons from points outside of the State into any infected portion of the State. As the object in view would be “to accomplish the subsidence and suppression of the infectious and contagious diseases, and to prevent the spread of the same,”'it would be ■difficult to see why parties from outside of the State should be permitted to enter into infected places, while those from the different parishes should be prevented from holding intercourse with each ■other.

The object in view was to keep down as far as possible the number .of persons to be brought within danger of contagion or infection, and •by means of this reduction to accomplish the subsidence and suppression of the disease and the spread of the same.

The particular places from which the parties, who were to be prohibited from entering the infected district, or distiets, came, could have no possible influence upon the attainment of the result sought to be attained.

It would make no possible difference whether this “added fuel,” sought to be excluded, should come from Louisiana, New York, or Europe.

We see nothing in the particular place in the act,in which this power is conferred, to cause us to suppose that the Legislature intended to place upon it the limitations which appellants contend for. They claim that the powers of the present Board were those of its predecessor, but this is obviously not the case.

The new Board was given, by the third section of the act, the powers ■of the old, but with such modifications as would be operated under the provisions of the Article of 1898.

It is very clear that the General Assembly intended to grant additional powers to the Board, and this very power was beyond question, ■one of them.

During the fall of 1897, and' during the existence of an epidemic, a vessel arrived in the Mississippi river with immigrants aboard, under conditions similar to those under which the “Britannia” reached the same stream in 1898.

The excited public discussions at the time as to the right of the State Board, under the then existing law, to prevent the landing of the immigrants, and as to its duty in the premises, were so extended as to authorize us to take judicial notice of the fact, and, in our opinion, the clause in the present act, which covers that precise matter, was inserted therein for the express purpose of placing the particular question outside of the range of controversy.

For a number of years past immigrants have been coming into New ^Orleans in the autumn, from Italy.

There was a probability, when the General Assembly met, in 1898, that the epidemic of 1897 might be repeated, and a great probability tha1 immigrants would seek to enter as they had done the year before, to the great danger, not only of the people of Louisiana, but of the •immigrants themselves.

Independently of this, there was great danger to be apprehended from the increasing intercourse between New Orleans and the West India Islands, in'consequence of a war with Spain.

It was to ward off these dangers that this particular provision was inserted in the Act of 1898.

Appellants maintain that the act of the General Assembly is violative of the Cqnstitution of the United States, and in contravention of its treaties with France and Italy, and its immigration laws.

We are not of that opinion.

It is the right and duty of the different States to protect and preserve the public health.

This right is not held by the States by permission of the Federal, government, nor is its legitimate and proper exercise controlled by that government, simply by reason of the existence of a power in the latter, “to regulate commerce.”

As a matter of course, State legislation which would cross the boundary line which separates the State’s police power of protecting the public health, to really interfere with and invade the right and power of the general government to regulate commerce, would be set aside, but it is not every restriction upon commercial operations, remotely and incidentally brought about by the passage of State health laws, which can properly b.e designated as such interference or invasion.

In re Rahrer, 140th U. S. 554, the Supreme Court of the United States, speaking through Chief Justice Fuller, made use of the following language:

“The power of the State to impose restraints and burdens upon persons and property in conservation and promotion of the public health, good order, and .prosperity, is a power originally and always belonging to the States, not surrendered by them to the general government, nor directly restrained by the Constitution of the United States, and essentially exclusive.

“And this court has uniformly recognized State legislation, legitimately, for police purposes, as not in the sense of the Constitution infringing upon any right which has been confided expressly or by implication to the general government.

“The Fourteenth Amendment, in forbidding a State to make or to enforce any law abridging the privileges and immunities of citizens of' the United States, or to deprive any person of life, liberty or property, without due process of law, or to deny to any person the equal protection of the laws, did not invest, nor attempt to invest, Congress with power to legislate upon subjects which are within the domain of State legislation.

“It is not to be doubted that the power to make ordinary regulations of police, remains with the individual States, and cannot be assumed by the National Government, and that, in this respect, it is not interfered with by the Fourteenth Amendment.”

In Gibbons vs. Ogden, 9 Wheaton, page 203, Chief Justice Marshall, referring to State inspection laws,, said, that “they were certainly íecognized in the. Constitution as being passed in the exercise of a power remaining with the States.

“That inspection laws might have a remote and considerable influence upon commerce could not be denied, but that a power to regulate commerce could not be admitted as the source from which the right to pass them was derived.

“That they formed a portion of that immense mass of legislation which embraces everything within the territory of a State, not surrendered to the General Government, all of which could be most advantageously exercised by the States themselves.

“That inspection laws, health laws of every description, as well as laws for regulating the internal commerce of a State and those which respect turnpike roads, ferries, etc., were component parts of this mass.

“That no direct general power over those objects was granted to Congress, and consequently, they remained subject to State legislation.”

The General Assembly of this State, in enacting Act No. 192 of 1898, was not acting or claiming to act under “a power to regulate commerce,” as the source from which it derived the right to pass the act.

Its source was the police power of the State, exercised for the protection and preservation of the public health.

No one who reads the act, or who knows and appreciates the circumstances under which it was enacted, can for a moment doubt the perfect sincerity of the General Assembly in dealing with this matter.

It was futile to say that there was any other purpose in view than that which appears on the face of the act.

There could exist no other uossible motive than that announced.

None other can be plausibly suggested.

We hot only think the Legislature acted 'in absolute good faith, and under no disguisement, but'are of the opinion that the legislation was-timely and judicious, well calculated to assist “in accomplishing the subsidence and suppression of infectious and contagious diseases and preventing the spreading of the same,” and we are further of the opinion, that the action of the State Board was legally taken, under the provisions of the act, and not arbitrary and unjustifiable, as-claimed.

The conclusions we have reached as to the provisions of Act No. 192 not being unconstitutional as infringing upon the right and power of Congress to regulate commerce, carries with it as a result, the holding by this court that the act was not in contravention of the treaties of the United States with France or Italy, or of the immigration laws of the general government, or of any rights secured by the Fourteenth Amendment of the Constitution of the United States.

The treaties and laws of the United States must be held to have been passed with reference to and subsidiary to the rightful exercise of the police power by the different States, in aid of the protection and preservation of the public health within their respective borders.

We scarcely think it could be pretended that an act of the General Assembly of Louisiana, under the provisions of which a ship load of citizens of the State of New York could be legally prevented from being landed in the city of New Orleans, during an epidemic, could, by reason of a treaty, be held as against foreigners coming to our shores, to be inoperative, null and void.

They could have no broader rights than our own citizens, in this matter, and should be subjected to the same restrictions and inconveniences which they are, when these are demanded at their hands for the preservation and protection of the public health.

The claim of the plaintiffs that'they have-been deprived in the premises of their liberty and property, without due process of law, is utterly untenable.

They have not been deprived of liberty nor of property, but simply prevented from doing an act which if permitted to be done, would not .only be to the great injury and damage of the people of Louisiana, but in all likelihood, to the great damage and injury of the passengers upon their ship.

We do not see “what process of law,” beyond that taken, could have been taken by the health authorities.

It is very -unfortunate that plaintiffs’ ship and her passengers should have been detained as they were, but if loss has been suffered it is damnum, absque injuria.

The defendant Board is not an ordinary corporation; it is a “body politic,” with corporate powers, with the right to sue and be sued.

It is a governmental public agency, representing the State in respect to the matters with which it stands entrusted.

Were this court to find plaintiffs entitled to a judgment, it would not be an ordinary judgment, susceptible of execution by fi. fa.

The judgment would be, substantially, one against the State; and of 1¿he character of those referred to in Article 192 of the present Constitution.

Plaintiffs charge that the resolution adopted by the Board of Health, though general in terms, was in reality directed specially against them.

The arrival of plaintiffs’ ship under the circumstances then existing, may have given rise to the resplution as evidencing a necessity for action under the power conferred on the Board by the Act of 1898,butthe fact that it was the first ship to which the resolution was made to apply, would not justify the charge that it was specially aimed in an offensive sense, at the plaintiffs.

The resolution is general, and there is no reason to suppose that it would not have been executed against any other ship or ships which might fall under its terms.

Be that as it may, if the Board had the legal power and right to act as it did, the motive with which it may have been done is not a matter for our consideration.

Our conclusions absolve, necessarily, the members of the Board from legal liability for their course.

For the reasons assigned, it is ordered and decreed that the judgment appealed from be and the same is hereby affirmed.


author: Nichoils, C. J.

text:
    No. 13,044,
    Mrs. Jane Kirk et als. vs. Kansas City, Shreveport & Gulf Railroad Co.
    Syllabus.
    (1) This case Is controlled by the principles announced in J. I. Kirk et al vs. Kansas City. Shreveport & Gulf Railway Co., No. 13,042, decided at the same time.
    72) A railroad company must construct at Its own cost necessary crossings over Its road bed, so as to enable owners whose lands have been separated by the same to have access from one part to the other. The failure of the land owner in granting the right-of-way to stipulate that such crossings should be constructed does not Impair his right to have the same made. (Heath vs. Texas & Pacific Railway Co., 37th Ann., 728.)
    ON APPEAL from the Twelfth Judicial District Court for the Parish of Vernon. Bead, J.

      Scarborough & Carver for Plaintiffs and Appellees.

      T. Alexander and Pujo & Moss for Defendants, Appellants.
    Argued and submitted February 8, 1899.
    Opinion handed down March 20, 1899.
   The opinion of the court was delivered by

Nichoils, C. J.

The plaintiffs asked judgment against the defendant, for twenty-three hundred dollars. The case was tried by a jury, which returned a verdict in favor of the plaintiffs for three hundred dollars, and judgment was rendered accordingly. Defendant appealed.

. Plaintiffs alleged that they were joint owners of certain property ■described in their petition.

That they sold to defendant a right of way over said land, consisting of a strip one hundred feet wide, as would appear from a copy of the .act of sale annexed to their petition.

That, the defendant had since constructed its road through the land described; that in doing so they had damaged petitioner’s property in the sum set out. That they had destroyed the residence site of said place by building an immense embankment through, over and near said residence, so as to completely destroy the value of the residence, and the site on which the residence was situated — -they had constructed their road bed between the residence and the farm and pasture lands belonging to the property, so as to render its use almost worthless to petitioners — that the construction of said road-bed in ■such place was ill-advised, unnecessary and unlawful, and unauthorized, interfering with petitioner’s right of property, and an inexcusable destruction of values — the same having been constructed at a point where it caused the greatest possible damage that it could have ■done, expressly violative of the law made for the protection of petitioners in their right of property.

Defendant answered, pleading first the general issue.

1. They admit that they had purchased the right-of-way through lands of plaintiffs, as described in the copy of the deed annexed to plaintiff’s petition, and that the road bed was constructed thereon.

2. They averred that their road-bed was properly located and constructed through said land with all due regard to the topography of the country, as well as the rights and interest of the plaintiffs.

3. They denied that plaintiffs had suffered any special damages whatever from the construction of their road through said land, of any damage of any kind, not contemplated and included in the right of way granted and conveyed by them to the railway company.

Opinion.

The principles which controlled the case of J. I. Kirk et al vs. Kansas City, Shreveport & Gulf Railway Company, No. 13,042, recently decided by this court, control this one also.

Defendant is operating a railroad over a right-of-way granted by the plaintiffs in a deed identical in terms (except as to property) with that granted to it by the plaintiffs in the former suit.

The line was located and the road constructed without opposition from the plaintiffs. They now seek to claim damages from the defendant, on the ground, that it threw up in front of their residence' a high embankment so close to the same as to render it uncomfortable, disfigure the property, and diminish its value; on the further ground that the railroad embankment cut the pasture land off from the main portion of the tract, making access to the same inconvenient and burdensome.

Several witnesses testified that defendant had dug trenches on their right-of-way, in order to make the embankment in which water was-permitted to stand, tending to the prejudice of the health of the place, and that their stock was liable to stray upon the track and be killed, there.

The plaintiff, Mrs. Jane Kirk, is the mother of the co-plaintiffs, J. I. Kirk and Amos A. Kirk.

The sons own the property adjoining that referred to in the present litigation.

The railroad embankment fronts both places.

It is quite high on this particular property, but gradually lowers, and reaches the level of the surrounding land before it leaves the-place.

The defendant company constructed a crossway over the embankment on the J. I. and Amos Kirk tract, so as to connect the two parts-into which that property was divided by defendant’s right-of-way.

Plaintiffs could, therefore, reach their pasture land, by going a. short distance either to the right or to the left of the residence.'

There is nothing to show that they demanded that defendant should construct a crossing over the embankment on their tract, if one was-needed for their convenience.

They were entitled to have exacted such a crossing, and had it been, applied for, it would have been defendant’s duty, at its cost, to have-furnished it. They have not lost that right. (Heath vs. Texas & Pacific Railway Co., 37th Ann. 728.)

The claims for damages as set up by the plaintiffs are for matters which must have been known, forseen and anticipated by the parties at the time the deed between them was executed.

For the same reasons which we assigned in J. I. Kirk vs. Kansas City, Shreveport & Gulf Railway Co., No. 13,042, they must be disallowed.

It is hereby ordered, adjudged and decreed that the verdict of the jury be set aside, and the judgment thereon rendered and herein appealed from be and the same is hereby annulled, avoided and reversed, and plaintiff’s demand be and the same is dismissed.

Mr. Justice Blanchard takes no part, having been of counsel.