author: Ludemnu, C. .T.

text:
    No. 5842.
    Louisiana National Bank of New Orleans vs. Citizens' Bank of Louisiana.
    This suit is brought by tin* Louisiana National Bank of Now Orleans vs. (‘itmons’ Bank of Louisiana, to rocovor baok the amount of a aimak drawn )>y tin' Bank of Mobile, purporting to bo for.fwanfv-savan liumlrotl dollars, ))ul wliiah had boon frauduluntly raised from a smaller sum. and paid in ignorauoo of Iba lorgoryby tin* Louisiana National Bank, on whi.oh the chock was drawn, and which had been * taken on deposit by a third party and iho amount paid out, upon the faith of tho corliitcat ion that it. was “good.” put upon the eheek by the Louisiana National Bank.
    The obligation of the Xjouisiana National Bank to pay was the sama, whether the instrument be ealied a eheek or bill. Clearly there was created an engagement of I lie bank, to pay, and (he bank became primarily liable to any innocent bolder of t lie instrument for the amount thereof, which it had cert iiied to be good. One of two innocent persons must suffer in this ease. It would seem but just that he whose net has caused tin» loss should bear it.
    HPEAL from the Superior District Court, parish of Orleans. Jhm-kiiix, J.

      Finneu A: Miller, for plaintiff and appellee.

      J. ñlnl, for defendant and appellant. Clarke, Jlaijne if llenxhaw, for the New Orleans Having's Institution, ealied in warranty.
   Ludemnu, C. .T.

This suit, is brought by the Louisiana National Hank against the Citizens’ Ha.uk to recover the amount oí a eheek drawn by the Hank of Mobile, purporting to he for twenty-seven hundred dollars, but which luid been fraudulently raised from a smaller amount, and paid, in ignorance of the forgery, by the, Louisiana. National Hank, on which the cheek was drawn. The answer of the Citizens’ Hank is tlm general issue; it avers the eheek was deposited in the Citizens’ Hank by anil for account of the New Orleans .Saving's Institution, which instil Litton is ealied in warranty. The answer of the Savings Insiitutton is the general issue', and the special defense-that the Savings fiist-it-ntton took tiie eheek oil deposit, and paid out on account of it, upon the faith of tile certification that it “was good” put, upon the chock by 1 lie Louisiana National Hank.

There is no dispute about the facts. The bill of exchange or check was drawn by tile Hank of Mobile, but the amount thereof had been raised from twenty-seven dollars to twenty-seven hundred dollars before it was presented to the Louisiana National Hank of New Orleans for eor-tilieation, and the New Orleans Savings Institution and the Citizens’ Hank received and paid their money for it. after the Louisiana National Hank hud eertiiied that it was “good.”

Who must bear the Loss? We do not consider it important to determine whether this be a eheek or a bill of exchange. In the. ease of City Bank vs. Girard Hank this court said: “Wo are unable, to discover any difference between the obligation, to pay a check or a bill of exchange. Both contain a request from the drawer to the drawee to pay a sum of money -to the person in whose favor the cheek or bill is drawn. A check drawn in New Orleans on London would, in our opinion, be. a foreign bill.” 10 La. 567. Mr. Parsons says: “ The check is always considered in England as a kind’ of inland bill ot‘ exchange, and this language is frequently adopted by American writers. They are much used here in drawing from one State' upon houses of deposit hi another, and small sunis of money are frequently and very conveniently sent in this way ; and it has even been suggested that these checks are foreign bills, and as such subject to protest and damages.” 2 vol. Notes and Bills.

The obligation of the Louisiana National Bank to pay was the same whether the instrument be called a check or a bill. What was the effect of the acceptance or certification of the Louisiana National Bank? Clearly, it created an engagement of the bank to pay the cheek, and the bank became primarily liable to any innocent holder thereof for the debt which it had certified was “ good.”

Mr. Parsons says : “ It is quite common in this country to present a check, not for payment, but to bo marked or certified as good * * * and then it circulates or is transmitted as cash. Checks arc often certified as good in England as well as here, and are there used and deposited as bills of the certifying bank. This marking or certifying is called in some cases ‘acceptance,’ and is said to have the same ('fleet as acceptance.” Parsons’ Notes and Bills, vol. 11, p. 74.

The counsel for plaintiff says the general rule is, that, he, who pays in error is entitled to recover back the money so paid, and ho admits the exception to this rule in favor of commercial paper, when the drawee has paid — but he says that the exception applies only when the siyna-ture of the. drawer is forged, as the drawee was bound to know the signature of his correspondent, and whether he had funds, and that he guaranteed nothing else. It seems to us that tested by this rule the plaintiff can not recover.

We have already said that, by certifying the check “ good,” the bank bound itself primarily to bona fide subsequent holders — according to the agreement of the plaintiff, its act in certifying only estopped the bank from denying the signature of the drawer and the a,mount certified. That is all the plaintiff seeks to make the defendant responsible for. It is the signature, and the amount of the check which give it value. It is of no consequence by whom the, body of the instrument was' written. It often happens that a check is written by a clerk or third person and signed by the drawer. One of two innocent persons musí, suffer in this case; it would seem but just that he whose act has caused the loss should bear it. Price vs. Neal, 6 Burrows, p. 1357; Bass et al. vs. Clive, 4 Maulé & Selwyn 15; Smith vs. Mercer, 6 Taunton 81.

By certifying the check the bank bound itself to pay the amount which it. tía-id was good, and upon this obligation alone the defendant parted with its money.

The Louisiana National Bank, by its cashier, wrote across the face of the check “good, Eug. F. (larda.” And with this certification, the cheek, as it was when certified, was acquired by the defendant in duo course of its business; and the plaintiff paid it. IVe can not perceive how the plaintiff can contend with any semblance of right that the defendant was negligent in not inquiring from the Bank of Mobile il’ the chock was genuiue. If this inquiry had to be made by any one, it seems that it should have boon made by the certifying- bank before it gave currency to it and lulled suspicion and stopped inquiry by the responsibility of its certification that it was good.

In the cast'- of the Merchants’ Bank vs. State Bank, the Supreme Court said: “ By the law merchant of this country the certificate of the bank that a check is good is equivalent to acceptance. It implies that thé chock is drawn upon sufficient funds- in the hands of the drawee, that they have' been set apart for its satisfaction, and that they shall be so applied whenever the check is presented for payment. It is an undertaking that the check is good then and shall continue good, and this agreement is as binding on the bank as its notes of circulation, a certificate of deposit payable to ¿lie order of the depositor, or any other obligation it cían assume. The object of certifying a check, as regards both parties, is to enable the holder to use it as money. The transferee takes it with the same readiness and sense of security that ho would take the notes of the bank. It is available also to him for the purposes of money. Thus, it continues to perform its important functions, until in the course' of business it goes back to the bank for redemption and is extinguished by payment. It can not be doubted that the certifying bank intended these' consequences, and it is liable accordingly. To hold otherwise, would render these important securities only a snare and delusion.” 10 Wallace, 647. Sec, also, United States Bank vs. Bank of Georgia, 10 Wheat. 333.

The plaintiff relies upon the cases of McCall vs. Corning, 3 An. 409, and Espy vs. Bank of Cincinnati, 18 Wall. 604, as conclusively settling the rigid to recover. Neither of these cases was like the one under consideration. In the cíase of McCall vs. Corning et al. a forged draft had been sold to Britton & Go., who transferred it to Corning et al. before, acceptance. They had parted with their money, not on the credit of the drawee’s acceptance, but on the faith they had in the drawer and the payee and indorsor.

In the case of Espy there was no written certification on the check. The cashier of the bank had verbally told the dlerk of Espy, Heidelbacli & Co., the payee, that “it is all right; send it through the ClearingHouse.” In this eoimectioji tito court used the following language: “It is also to be considered that the hank was not asked to certify it in the usual way by indorsing it good, and that the party who asked information was tlie one wiio.se name was in tin; check as payee. We do not propose to decide hero what would have boon the legal effect in the present casi' if the bank officer had, under precisely those circumstances, boon requested to indorse the chock as good, and had done so, affixing his name or his initials in tlie ordinary way.” IS Wallace, pp. (ill), (120. This extract is sufficient to show that the question involved in this ease was" not decided in Espy vs. Bank of Cincinnati.

The plaintiff also relies upon the case of the Marine National Bank vs. the National City Bank, recently decided hy the Court of Appeals JVn New York. That ease differs from the present ea.se in this, the party who had the chock certified, and to whom, subsequently, payment was made, was tin1 same whose name was in the check a,s payee; in the present ease' the Citizens’ Bank was not a party to the check. See, also, tlie eases of Farmers’ Bank vs. Butchers’ Bank, 16 N. Y. 125; First National Bank vs. Leach, 52 N. Y. 350; Cooke vs. State National Bank, 52 N. Y. 115.

It is therefore ordered and adjudged that the judgment of the lower court bo reversed, and that there, he judgment in favor of the defendant, rejecting the plaintiff's demand with costs. -+

Rehearing refused.

Mr. .Tnstieo Wyly dissents, and reserves the rigid: to Jile his reasons.


source: Caselaw Access Project

author: Lrnrauxu, C. J. Wyt.v, •).,

license: Public Domain

text:
    No. 6081.
    Dr. D. Meng vs. the Parish of St. Charles.
    Except for die sum of twenty-live dollars. hciiiír a wan-niil of die parish of Fit. Charles hi favor of one Durapnn. thin suit is for services rendered by die jdain-UJT ns a phvsieinn employed under an ordinance of the police jury, warrants issued io plainiill' for diose services are offered in evidence lo corroborate the odier evidence inlroclueod to support, plainlift’s Haim. That purl of plaintiffs elaini which rested on the, Dnra.pau warrant should not have, been allowed, under previous decisions of Ibis court. Til other respects die. judinnonl of the jodee n i/no hi favor of plaintiff is correct.
    APPEAL from tlie Fourth Judicial District Court, parish of Bt. Charles. Flatjij, J..

      Jamen I). Jin/iixfin, for plaintiff and appellee.

      Xorl HI. 2farlin, Parish Attorney, and .Breaux, Fenner cf: Hall, for defendant and appellant.
   Lrnrauxu, C. J.

This is a suit for services rendered as physician, under an ordinance of the police jury, and for the amount of twenty-five dollars, being a warrant issued by the police jury in favor of one Dura,pa,u. Tlie defendant filed a. general denial. In this court, the de-fenchí,nt alleges that the .suit is instituted on parish warrants and does not differ from the cases of Flagg et al. against the parish of St. Charles, decided last term, and Mathé vs. the parish of Plaquemines.

Except for the sum of twenty-five dollars, already mentioned, this suit, is for services rendered hv the employee. The warrants arc'-offered in evidence to corroborate the other evidence introduced to support plaintiff’s claim. The. claim for the warrant of Du rapan should not have boon allowed under the decisions of this court in Sterling vs. Feliciana and Mathé vs. parish of Plaquemines. But in other respects the judgment is correct.

It is therefore, ordered that the judgment he amended by striking out this item of twenty-five dollars, and in other respects that the judgment. bo affirmed. The costs of appeal to in' paid by appellee.

Wyt.v, •).,

tlissi'idhig. S. IV. Burbank and twenty-three' oilier property-holders of the. parish of St. Charles have appealisl from tile judgment herein for nine hundred and fifteen dollars which plaintiff obtained againsi the parish of St. Charles on parish warrants. . ¡

Plaintiff alleges that lie was employed by tin- police jury of the parish of Si. ('-liarles as parish physician for the years 1873 and 1874 at a salary of six hundred dollars per annum: that lie received from time to time in evidence of the Indebtedness of said parish to him for said professional services certain orders or warrants drawn by the secretary of tin'said police jury on the Ireasurer of said parish of St. Challes, approved and countersigned by the president of the police jury, and also duly registered, approved, and countersigned by the treasurer of the police jury; tin' petition mentions the number, date', and amount of each of the warrants drawn in favor of plaintiff for his salary as parish physician; plaintiff also alleges that lie is the owner and holder of a similar warrant dated September JO. 1873. for twenty-live dollars, drawn to tin' order of A. Durapau for sa.la.ry as parish ireasurer, which was duly indorsed and transferred to him. Plaintiff also alleges that lie has made repeated amicable demands on the parish treasurer for payment of said warrants, and payment lias been refused. He prays for judgment against the. parish for the amount of said warrants, and that the tax collector be required to collect a sum sufficient to pay the same.

The only evidence offered to support the demand of plaintiff was the warrants of the police jury, an extract from the minutes of the j>o-liee jury showing that Dr. Mong was appointed parish physician and the salary was six hundred dollars, and the deposition of plaintiff, Dr. Meng.

Ho testifies in substance that he has practiced medicine since 1842; that he was appointed parish physician of the parish of St. Charles; that He has rendered the service's worth the sum clainicd---it was Ms salary as was understood between the police' jury and himself — -that lie is a licensed physician, and that the signature of A. Durapan is genuine.

The suit is based upon parish warrants, and it must be controlled by the case of Sterling vs. parish of West Feliciana, 26 An. 59, the cases of Flagg, Morgan, and others vs. the parish of St. Charles, 27 An., not yet reported, and the case, of Mathé vs. parish of Plaquemines, 28 An., not yet reported.

In Sterling’s case this oourt.held: “ The position that the warrants or negotiable instruments of indebtedness which arc1 the objects of this suit were issued to defray the necessary expenses of the parish is not tenable. The policie jury was not authorised to doit in any other way than by levying and collecting a tax for that purpose. Said negotiable instruments are null and void.”

The same doctrine was applied in the cases of Flagg and others vs. the parish of St. Charles, where it was shown that the warrants were iskuecl for salaries of parish officers. And it was more recently applied in the case of Mathé vs. the parish of Plaquemines, where it was proved that the warrants were given in evidence of the necessary expenses of the parish aud for foes allowed by law.

The uniform ruling of this court has been tlia.i the parishes have no authority to put in circulation negotiable instruments like those in suit, ánd they are absolutely void. The- rights of the parties, however, have been reserved to sue the parishes upon any valid claims they may have. If the jurisprudence has been settled upon any point it is upon this, that recovery can not bo had in a suit upon parish warrants, it matters not the consideration thereof.


author: Wyia', ,f.

text:
    No. 4708.
    Nathaniel B. Merrill vs. Mary Lawrence Flint. His Wife.
    This sail for a divorcio brought by a husband against his wife was llled cm the seventeenth day of March, 1876. On the, third day tlmroafter. the curator, ad har appointed by the court, answered, admitting the marriage and that there was a minor child, but denying all the, other allegations of the petition. On the ne.\l day the, deposition of three, witnesses was taken in the dork's office by consent of counsel and the ease submitted. On the succeeding day the court rendered judgment as prayed Tor by plaintiff, and three, days later the judgment was signed. Thus, within ten days the suit was tiled, issue joined, evidence taken, the case submitted, and judgment signed. Nineteen days after the signing of this judgment, the defendant, who resided in New York and who had been ignorant of these proceedings, appealed by her atlo-nev.
    The proceeding did not authorise the decree, and (ho evidence of the witnesses fails to establish with sufficient legal nortainly the charges made in tile petition, not oiu> of tlio witnossos having any piTKimal knowledge of the facts, except that defendant was not residing will) liei' husband in Now Orleans.
    The ground lor th(> divo ire is simply and solely the, charge of abandonment by the wife, no other cause being disclosed by the petition. The charge of abandonment., if properly presented and established, would authorise a judgment of separation from bed and board, and, after one year shall have, expired and no reconc.iUat ion, a judgment of divorce.
    Relief on i he ground of abandonment can only bo had by complying with article. 143 of the Revised (tide, which reci ñires that the abandonment must be made to appear by the evidence of three reiterated summons made to him or to her, from month to month, directing him or her to return to I ho matrimonial domicile, followed by a judgment which shall sentence him or her to comply with such request, together with a notice of said judgment given to him or her, from month to numili, for throe times successively. The. summonses and notice of judgment shall hi' made to him or to her at the place, of his or her ushal residence, if he or* she lives in this Slate.-and, if abso.nl, a.l. the place, of residence of the attorney who shall he. appointed to him or her by the judge for that purpose. This formality has not been complied with by plaintiff.
    No separation of husband and wi I'e can be decreed for cause of abandonment without a compliance with article us of the Revised Code.
    A particular form of procedure Is required by the Code for obtaining a decree of separation on the ground of abandonment, and that form must be pursued to oblain relief. Tills has been the ruling of this court, in more than one case. Upon the face of ilie record, therefore, plaintiff has not presented a cause of action entitling him to relief.
    1’REAL from the Fifth District Court, parish of Orleans. (Jullom, J.

      II. ('. Ciixtellanon, for plaintiff and appellee.

      A. A. Atocha, curator ad hoc, and llonior T Benedict, for defendant and appellant.
   Wyia', ,f.

Defendant, who was married to plaintiff in July, 1864, appeals from the judgment lie rein decreeing a divorced vinculo matrimonii between herself and her said husband, and giving him the custody of their minor child, Katie.

The grounds stated in the petition for the divorce are: That plaintiff was married t,o the defendant in New Jersey in 1864; in 1866 he came to New Orleans and established himself in business, and has resided here up to the present time; that when petitioner came to New Orleans he prepared to bring his wife and child with him, but Ms said wife peremptorily refused to follow him; that ho lias repeatedly called upon her to come and join him at the conjugal domicile, but she has persistently refused, and still refuses, to return to said domicile; that her conduct has been repugnant to the marriage covenant, and such as to render any further living together insupportable; that his said wife has left the place when' she was married to petitioner, without notification to him and without his consent, and refuses to hold any communication with Mm; and petitioner, only through information from other persons, has learned that his said wife is in some part of tile continent of Europe.

Upon these allegations plaintiff prayed for the appointment of a curator ad hoc to represent his wifo, for his citation, and, after due proceedings and delays, for a judgment of divorce a vinculo matrimonii and for a decree giving Mm the custody of their minor cMld,

This .suit was filed on tin' seventeenth of March. 1879; on the third day thereafter the curator m! hoc appointed by tho court answered, admitting tlie marriage and the allegation that there was one minor child, the issue of said marriage, and denying all tlie other allegations of the petition. On the ue.xt day the depositions of three witnesses were taken in tho clerk’s office by consent of counsel, and the case submitted. On the succeeding day the court rendered judgment as prayed for by plaintiff, and three days later the judgment was signed.

Tims within ten days tlie suit was filed, issue joined, evidence taken, the case submitted, judgment rendered and signed. On the fifteenth of *April, 1878, nineteen days after the signing of this judgment, the defendant, hy her attorney, prayed for and obtained an appeal, alleging ill the petition that she was a. resident, of the city and State of New York; that her said husband, without notice to her, obtained the judgment, of divorce contradictorily with a curator ml hoc appointed under the untrue statement that she was absent in Europe, when her said husband knew that she. was at her domicile in New York; that the first knowledge she had of said-suit, or said judgment, was on the ninth of April, 1878, a few days before this application for an appeal. In this court, tlie appellant assigns the, following errors:

First — Tho court was without jurisdiction.

Second— Tlie proceedings and evidence' do not warrant the judgment.

Third — The defendant was not cited, and was not a party to the proceeding.

Fourth — That said judgment was rendered hy consent illegally given by tlie curator ml hoc.

. Without expressing an opinion as to tlie. first, third, and fourth grounds, we ¡we, from an examination of this ease, clearly of opinion that tlie second ground of error was well taken.

The proceeding did not authorize the decree, and the evidence of the witnesses fails, to establish with sufficient legal certainty the charges made in the petition,'net one of the witnesses having’ any personal knowledge of the facts, except that defendant ivas not residing with her husband in this State.

The, ground for the divorce is tlie charge of abandonment; no other cause'is' disclosed by the petition. The charge of abandonment, if properly presented and established, would authorize a judgment of separation from hod and board, and after one year shall have expired, and no reconciliation, a judgment of divorce. Revised Code, article 189.

• Relief on'’’the ground of abandonment can only be had by complying with article 115 of the Revised Code, which requires that the abandonment .must bo made' to. appear by three reiterated summonses made to him or MirTrom month to month, directing him or her to return to the mairinionial domicile, followed by a judgment which .slia.ll sentence him or her to comply with such request, tog-ether with a notice oí such judgment given to him or her from month to month for throe times successively. The summons and notice of judgment slmll he- ma.de to him or her at the place of his or her usual residence', If he or she lives in this State, and, if absent, at tin' place of residence of the attorney who shall be appointed to him or her by The judge for that purpose. This formality has not been complied with by plaintiff. In Perkins vs. Potts, 8 An. 14. it was held that no separation of husband and wife can be decreed for cause of abandonment without a compliance, wit.ii article 148 of the Civil Code, being- article 145 of the Kcviscd Cedi'.

In Bienvenu vs. Buisson, 14 An. 387, it was lmld that a particular form of procedure is required by the .Code for obtaining a deem1 of separation on the ground of abandonment, and that form must he pursued to obtain relief. And this lias beeu the ruling of tins court, in other cases.

Upon the face of the papers, therefore, plaintiff lias not presented a case entitling- him to relief.

It is therefore ordered that the judgment herein in favor of plaintiff be annulled, and it is decreed that plaintiff's suit be dismissed with costs of both courts.


author: "Wvly, .T.

text:
    No. 6049.
    Mrs. Leda Forstall, Wife of O. C. Olivier, vs. Widow Edmond J. Forstall; and Widow Edmond J. Forstall vs. Widow V. Choppin et al. Consolidated.
    Where Hiere luis born no testamentary disposition of this disposable shave ol the predeceased husband or wife in the community, the survivor shall he entitled to a usufruct, during his or tier natural life, of so much of Hu- shareoflhe deceased in such community properly as maybe inherited by his or her Ihmic -proceeding from said marriage.
    The condition upon which Hie survivor shall haven usufruct is,-that the preducea-ed husband or wife shall nol have disjiose.il of his or her shun — Unit is the share that lie or she was permitted by law to dispose of.
    In the case at liar the disposable (tuanlmu was one-third of the property of the deceased; and the surviving widow has aeuuired this third in hill ownership by testamentary disposition.
    If the usufruct of the share of the deceased was more desirable than the full owner- ■ ship of ime-third thereof, the sm-yiving widow could have renounced the legacy. As she prefers the rights aeuuired by the will to those accorded to her by law, . she lias no canse io eomplaiu. She can nol hold both.
    APPEAL from the Parish Court, parish of Bt. James. Lanclry, J.

      S. Iff. Béraalt, for willow E. J. Eorstaii, executrix and appellant;

      Legendre & Boché and Victor Olivier, Jr., for Mrs. Leda Eorstaii and Edmond and (xiistave Eorstall, appellees;

      Itobl. O. Duque and It. Hunt, for Mrs. V. and Mrs. B. E. Ohoppin, appellees.
   "Wvly, .T.

This is a controversy between the surviving widow and universal legatee oí Edmond ,T. Eorstall and the children, the i'oroed heirs, in regard to the share oí tlie deceased in the community property; the widow contending that she is entitled to one-third the dis-posabie quantum, and to a usufruct of the two-thirds reserved by law to the. numerous heirs oí the deceased; and the lioirs contending that they are entitled in full ownership to the two-tliirds reserved to them by law.

l’iie question lias been very fully discussed in the, oral and written arguments of the learned counsel engaged in this litigation. We, however, find no difficulty in arriving at a satisfactory conclusion.

Article 910 of the Bevised (lode declares that “in all cases when the predeceased husband or wife, shall have left issue of the marriage with the survivor, and shrill not have (Imponed by hunt will and testament of his or her sitara hi the com-inanity property, the survivor shall hold a usu-fruct during his or her natural life of so much of tlie share of the deceased in such community property as may lie inherited by such issue. This usufruct shall cease, however, whenever the survivor shall enter into a second marriage.”

Article 1493 of the Bevised Code declares that “ donations inter virun or martin eauna can not exceed two-thirds of the property of the disposer, if he leaves at his dee,ease1 a legitimate child; cue-half if ho leaves two children; and ono-third if he leaves Hi reo or a greater number.”

Edmond J. Eorstall disposed in favor of the surviving widow by last will and testament, bequeathing to her his share of tlie community property. As there are more than throe legitimate children the legacy must be reduced to one-third, and tlie, heirs are, entitled in full ownership to two-thirds of tlie property of tlieir father.

Tlie surviving' widow is not entitled to the usufruct of this two-thirds, because tlie deceased disposed by last will and testament of his share of the community property. Article 91(5 must he construed with article 1493. Taken together, the meaning is; Where there lias been' no testamentary disposition of the disposable share of tlie predeceased husband or wife in tlie community property, tlie survivor shall be entitled to a usufruct during his or her natural lite of so much of tlie share of the deceased in such community property as may lie inherited by such issue. The condition upon which the survivor shall have a usufruct is, that the predeceased husband or wife shall not have disposed of his or her share, that is the share that he or she was permitted by law to dispose of. In the case at bar the disposable quantum was one-third of the property of the deceased, and the surviving widow has acquired this in full ownership by testamentary disposition.

If the usufruct ol' the. share of the deceased was more desirable than the full ownership 'of 0110-third thereof, the surviving widow could have renounced the legacy. As she prefers the rights 'acquired by the will to those accorded to her by law she has no cause to complain. She (tan not hold both.

The case of Matthews vs. Matthews. 13 An. 197, cited by the counsel of tilt' universal legatee, was not like the one before the court.

It is therefore ordered that the judgment herein in favor of the heirs of Edmond J. Forstall, appellees herein, bo affirmed with costs.

Rehearing refused.


author: Morgan, J.

text:
    No. 6036.
    Police Jury of the Parish of Plaquemines vs. Christopher Packard et al.
    Act No. (ill of 18(50. onlilU'd ;in acl to provide for flic collection of judgmouis against t-lic .several parishes of tills State, is not uneonsKlntiona,l. It simply authorizes ajmUtc who renders a judgment to order the proper persons to proceed in the manner pointed out by law lor its execution. This is ti purely judicial power.
    The object of I he law is certainly ex pressed in its title, and the sections thereof provide only for tlie carrying out of the objects as stated in the. title. It does not. HienTore conflict with article u+ of tile constituí ion.
    The (ax is certainly uniform in so far as the parish of Planuemines is (¡once,rued, as ail p’-operly therein is taxed alike. Because, article US of the constitution provides that taxation sluül be ('dual and uniform throughout the State, it does not follow tb.nl the people of the parish of ViauuemimiH can uof lie taxed f-jrany pnrpose unless the people of every other parish in ilie/,State are also taxed.
    PPEAIj from the Second Judicial District Court, pariah of Plaque-mines: Pardee, J.

      A. H. Lira.iutciia, Pariah Attorney, and 8am-hola <(■ Dan-ox, for plaintiff and appellant.

      JS. Howard McOaleb, for defendants and appellees.
   Morgan, J.

The petition relates that the defendant-, acting under and by virtue of certain decrees of court rendered in the suits oí Matin', Sarpy, and Foulhome, under which proceedings the Board of Assessors of that parish were ordered to and did assess a tax upon the property in the parish for the purpose of paying the judgments rendered in favor of the parties above named, is about to collect tin' same.

Plaintiff is enjoined from any further proceeding on the ground that act. No. (59 of tlu' Legislature of 18(59, entitled an act to provide for the collection of judgments against the several parishes of the State, is unconstitutional because it violates articles 82,114, and 118 of the constitution.

Article 82 of t.lic' constitution provides that no duties or functions shall ever he attached by law to the Supremo and district courts but such as are judicial.

Article Ll-l declares that ('very law shall express Its' object or objects in its title.

Article 118-provides that taxation shall be equal and uniform throughout tlie State.

Act No. (19 is entitled, “an act to provide for the collection of judgments against the several parishes of this State.” It provides dial whenever a judgment for money is reuderod by any court of competent .jurisdiction against a parish of this State, the judge who sha,II render the judgment shall, in tin1 same decree/ order the assessor forthwith t,o assess a pa.rjsh tax at a sufficient rate per centum upon (lie assessmejd roll of the current year to pay and satisfy said judgment with intoresl and costs.

We do not see in what particular this act violates the provisions of the eighty-second article of the constitution. It merely provides bow judgments against parishes arc to he collected, and how they are to be paid. It simply authorizes a judge' who renders a. judgment to order the proper pen-¡ou to proceed in the manner pointed out by law for its execution. It seems to us that this is a purely judicial power.

Tlie object of tlie law is certainly expressed in its title', and the sections thereof provide only for the carrying out of the objects as staled in tlie. title. It does not therefore conflict with article 114 of tlie constitution.

The tax is certainly uniform in so far as the parish is concerned, as all property is taxed a,like- We do not understand that, because article 11R provides that taxation shall be equal and uniform throughout the State, therefore tlie people of the parish of Plaquemines can not he taxed for any purpose unless the people of every other parish in tin' State are also taxed.

It is lu’ged in the brief that as regards Matin' tlie- .judgment, in his favor has been lately reversed by us. This may be. Tie may not be able to enforce his judgment. .But his is not the case before, us. We. are only imw deciding whether the judgment rendered in this case is right. We. think it is.

Judgment affirmed.


author: Ludeling, O. J.

text:
    No. 6016.
    The State of Louisiana vs. Charles Clinton, Auditor, and Antoine Dubuclet, Treasurer. Invervention and Rule of the New Orleans Republican Printing Company.
    It is not necessary to decide in this ease whether 'the act oí tho thirtieth oí March, 1875, or that published on tho third o£ April, both numbered seventeen, bo the law; for both acts embrace the same appropriation in favor of tho Republican Printing Company, intervening in this suit, and both acts make appropriations in excess of tho revenues for the year.
    Courts can not be considered as changing or amending an appropriation bill and thereby trenching upon the functions of tho legislative department, when they declare some items thereof valid and others void. Courts are only exercising their judicial functions when they determine that one part of a law is valid and another null. A law is entire, when each part has a general bearing upon tho rest. In such a case, if any part bo null, tho whole is void. But a law may bo partly valid, and partly invalid, when tho parts are themselves entire, independent, and distinct from oach otlior.
    In this case each appropriation is distinct and independent, and distinct from each other.
    In this case each appropriation is distinct and independent from the other, and any one may be unconstitutional without affecting the others, any more than If they wore embraced in separate acts.
    when seeking the legislative intention, this court will presumo that tho legislators intended to perform thoir sworn duty, by providing for tho current necessary expenses of the government fixed by existing laws and for matured obligations not otherwise provided for, before creating any new obligations or conferring liberalities.
    It is fair to infer from tho titles of tho acts in question that tho Legislature only intended that tlio appropriations, oilier than those lor current expenses, should bo paid out of any moneys in tlio treasury not otherwise appropriated, that is, after llie current necessary expenses should have been provided for.
    Making appropriations for necessary current expenses is a duty, while making-other appropriations for obligations not already existing, would rest in tho discretion of the Legislature; and, when made without adequately providing a revenue to such appropriations, would bo creating a debt, within the moaning of tlio constitution.
    The claim of tlio Republican Printing Company is for a necessary current expense of the State. The laws must be published, tho decisions of this court must be published, besides many other tilings which are required to be published by tlie State Printer.
    Tim evidence in tlio record shows that services to the extent of nearly the whole appropriation had already boon rendered, and that tho appropriations for tho necessary current expenses, under laws existing at tho time, do not exceed tho revenues provided for the year 1873.
    .4 PFEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      A. P. Field, Attorney General, for the State, the Auditor, and Treasurer, appellants.

      J. TV. Thomas and A. C. Lewis, for State Printer, intervenor and appellee.
   Ludeling, O. J.

On the seventh of April, 1875, the Attorney General of this State filed a petition in tho Superior District Court of New Orleans praying for an injunction against tho Auditor and the Treasurer of tho State to prevent the one from auditing and warranting for, and the otlior from paying, any of tho appropriations embraced in the acts entitled an act making appropriations, etc., passed in 1875, and both numbered seventeen, for the following reasons: He alleges that two acts have been published, having the same number and title, whereas only one general appropriation bill was passed by the General Assembly; that the bill promulgated on the thirtieth of March, 1875, and not the bill promulgated on the third of April, must be regarded as the true act, as the Governor’s authority to sign the bill was exhausted when he approved and signed the first, and that both acts are unconstitutional, being in violation of the third amendment to the State constitution, adopted in November, 1874, inasmuch as the appropriations are in excess of the revenues for the year. The prayer of the petition is that the second act be declared a nullity for the reasons stated, and that the first act be declared unconstitutional and void, and that the Auditor and Treasurer bo enjoined from warranting for and paying- any of the sums specified in said two acts.

The judge a quo issued an injunction as to some of the items of said bill, and as to portions of other items. The Republican Printing Company intervened in that proceeding, and, alleging that it was injured by said injunction, took a rule upon the State, the Auditor, and Treasurer, to show cause why the injunction should not be set aside, so far as it affected the Printing Company.

The Attorney General filed an answer for all the defendants in the rule, adopting the allegations of his petition for the injunction.

No objection has been, made to the manner of proceeding in this case. We will proceed, therefore, to decide the questions which vre deem necessary to determine the rights of the parties in this case.

It is not necessary to decide, in this case, whether the act of the thirtieth of March, or that published on the third of April, bp the law, for both acts embrace the same appropriation in favor of the Republican Printing Company, and both acts make appropriations in excess of the revenues for the year.

The first question to be decided is whether the whole act shall be cle-■clared void because it makes appropriations in excess of the revenues, or whether only so much thereof as is in excess shall be declared null ? This is a very important and delicate question, for if the law were to bo declared wholly void, there could be no moneys- drawn from the treasury lor the current expenses of the.State government; while, on the other hand, it might seem that the courts were trenching upon the functions of the legislative department in changing or amending an-appropriation bill, if they declared some items thereof valid and others void. But this is not so in reality. The courts are only exercising their judicial functions when they determine that one part of a law is valid and another null. A law' is entire when each part has a general bearing on the rest. In such, a case, if one part be null, the whole is void. But a law may be partly valid and partly invalid when the parts are themselves entire, independent, and distinct from each other. Thus in this ease each appropriation is distinct and independent from the others, and any one may be unconstitutional without affecting the others any more than if they were embraced in separate acts. If each appropriation in these bills had been made in separate acts, bearing the same date, could it be maintained tliat because the Legislature had made appropriations in excess of the revenues of the State, all the several acts were unconstitutional ? 'We think not. It would be the duty of the court to ascertain the legislative intention so as to give effect to as many of said laws as possible, without violating the constitution. When seeking the legislative intension, we will presume that the legislators intended to perform their sworn duty, by providing for the current necessary expenses of the government, fixed by existing laws, and for matured obligations not otherwise provided for, before creating any new obligations or conferring liberalities.

This presumption is supported by the title of the bills in question — it is “an act making appropriations for the general expenses of the State for the year 1875; providing for deficiencies existing in appropriations for the year 1874, and for the payment of claims and obligations due by the 'State of Louisiana prior to the first day of January, 1874; providing for and regulating the payment and auditing of said claims and obligations out of the revenues of the years in which said obligations were issued or said claims incurred; providing for and regulating the manner of auditing, warranting, and liquidating said claims and obligations, and providing for the receipt of certain warrants in payment of certain taxes due the State, and to provide for the absorption of the floating indebtedness.”

And it is fair to infer that they only intended that the appropriations, other than those for current necessary expenses, should be paid out of any moneys in the treasury not otherwise appropriated, that is, after the current necessary expenses should have been provided for. Making appropriations for necessary current expenses is a duty, while making-other appropriations, for obligations not-already existing, would rest in the discretion of the Legislature, and, when made, without adequately providing a revenue to meet such appropriation, would be creating a debt within the meaning of the constitution. 23 An. 403.

Is the claim of the Republican Printing Company for a necessary current expense of the State ? This is not denied, nor could it well be denied. The laws must be published, the decisions of this court must be published, besides many other things which are required to be published by the Public Printer. The evidence in the record shows that services to the extent of nearly the whole appropriation had already been rendered, and that the appropriations for the necessary current expenses, under laws existing at the time, do not exceed the revenues provided for the year 1875.

It is therefore ordered and adjudged that the judgment of the lower court be affirmed with costs.'


author: Taliaferro, J. HowEim, J.,

text:
    No. 6048.
    State of Louisiana ex rel. P. J. Martin vs. the Bienville Oil Works Company et al.
    In this case relator is a large stockholder in the Bienville Oil Works Company. lie has, in tho very nature of things, and upon principles of equity, good faith, and fair dealing, the right to know how the affairs of tho company are conducted— whether tho capital, of which ho has contributed so large a share, is being prudently and profitably employed, or otherwise. He shows that ho has been denied this right by tho Board of Directors, who assume that tho clause in the charter of tho company which declares that “ all the powers of tho corporation shall be exercised by a Board of Directors,” deprives him of his individual right to know,, from personal inspection of tho books and papers of the company, the state of its business.affairs.
    This court is not prepared to say that the above-stated assumption is logical and legally dodueiblo from tho clause referred to in the charter, and does not see that tho existence of tho individual right of one of the stockholders, claimed by tho relator in this ease, is incompatible with the power vested in the Board of Directors. If tho individual right contended for does not remain, it has been extinguished by some law, clear and explicit in its terms, or by necessary and certain implication. No sueli law is shown, and no such irresistible inference follows from the terms used in conferring the powers of tho corporation upon a Board of Directors.
    Tho relator has shown that tho directors have concealed from him facts which ho had a right to know, and especially in this, that public notice was given to the stockholders of the company to attond a mooting to be held at the office of the company, “to vote upon a reduction of the capital stock, and upon other matters.” In order to comply with this call, and to vote undorstandingly, it was certainly requisite for tho relator to know the condition of tho affairs and business operations of the company, and bo enabled from this knowledge to act for the best interest of tho stockholders and of the company. Therefore ho has brought himself within tho rule which entitles him to relief by showing a clear right and a just and useful purpose to be effected. Tho court a qua erred in discharging the rule taken by plaintiff against defendant.
    Tho objection that if tho relator has the right he elaims.it is personal to himself,, and can not bo exorcised by his agent, has no force. Tho possession of the. right in question -would be futile, if the possesso'r of it, through lack of knowledge necessary to exercise it, woro debarred the right of procuring, in his behalf, the services of one who could exorcise it.
    APPEAL from tho Superior District Court, parish of Orleans. Haiu-Icins, J.

      Wharton Collens, for relator and appellant.
    Clarke, Bayne & Benshaw, for respondent and appellee.
   Taliaferro, J.

The relator owns stock in tho Bienville Oil Works Company to the amount of twenty-fivo thousand dollars. He complains ■that the company refuses him access to its books; that he desires to know whether the funds invested by him in the company were faithfully •administered by the officers and directors thereof, whether the accounts of the company have been faithfully kept, and also to ascertain its assets •and liabilities, verify its stock and property, with the view of taking such lawful action in regard to its administration as his rights and interests might require. The relator appointed a competent agent, well versed in book-keeping, and conversant with the usual routine and details of ■business in the affairs of corporations, to represent him in the inspection of the books, accounts, and papers of the company for the purpose named.

In a supplemental petition the relator charges that for many years the -company and its officers have neglected to comply with the fifth article of its charter, which requires them to make in September of every year and to publish in two newspapers in this city an annual statement of receipts and expenditures, and of the true condition of the company, kloreovor, that the company by official notice, published in the Republican newspaper of the seventh of November, 1875, called a meeting of the stockholders “ to vote upon a reduction of the capital stock and upon other matters;” which meeting- is to be held on the eleventh of December following; that in the meantime the relator is prohibited by the officers and board of the company from ascertaining by examination and verification the true state and condition of the affairs of the company, so as to vote with knowledge of the facts necessary for him to form a satisfactoiy opinion on the subject.

The relator prayed that a writ of mandamus issue to the company to ■ compel it to comply with his requests in the premises.

An order was rendered that an alternative writ issue, to which the respondents answered—

First — By general denial.

Second — They take the ground that the charter of the company confides all the powers of the corporation to the board of directors, which they contend excludes the relator from the claims sot up by him.

Third — That relator’s rights in the premises are essentially personal to himself, and can not be exercised by or through his agent.

On the hearing in the court below, j udgment was rendered in favor of the respondents, discharging the rule, and the relator appealed.

The relator, in the main, has made good by proof the allegations of his petition. The officers of tlie company were willing to let him see the last balance sheet or statement they had made ; but would not permit him to see tlie cash book, the journal, or the ledger, by moans of which he contends he could have ascertained whether the balance sheet was correct or not. The respondents insist that the relator has no such right as lie contends for, and refer to the clause of the charter which declares that “ all the powers of the corporation shall be exercised by a board of directors.” They refer to the Civil Code, article 445: “The-statutes and regulations which corporations enact for their police and discipline are obligatory upon all their respective members, who are bound to obey thorn.” The case quoted from 6 Sargent & Rawle, p. 505, decided by the Supreme Court of Pennsylvania, announces only the same authority and power to exist in trustees of a certain corporation that are assorted by the charter of the Bienville Oil Works Company to exist in its board of directors. In Angel on Corporations, pp. 428 to 441, it is laid down that a mandamus will not be issued to compel the custodian of corporate documents to allow an inspection or copies to be taken, unless a clear right is shown and some just or useful purpose is to be effected. To this effect seem the principles announced in the English case principally relied upon on the part of the respondents : the case of Rex vs. the Master and Wardens of the Merchant Tailors’ Company, 2 , Barnwell and Adolphus, 115, 22 Eng. Com. Law Reports, 40. In that case a number of the corporators who were dissatisfied with the management of the company appointed a committee of their body to examiuo into its affairs. They called upon the clerk, who refused to exhibit the books and papers of the company ; whereupon the corporation and the clerk wore called upon to show cause why a mandamus should not bo granted commanding them to permit those individuals, their agents, at all seasonable times to inspect, and take copies of all records, books, papers, and muniments belonging to the company or relating to the affairs thereof. Affidavits alleging a belief of misappropriation of funds, violations of the charter, and other abuses were presented, and the relators closed their application by saying that they had no other wish in desiring an inspection of said charter, by-laws-, and other documents, than to seo on the part of a body of the members by whom they were authorized to act, how their joint funds were disbursed and that the legal rights and privileges of the members of the company should bo enjoyed by them agreeably to their charters. Strong suspicions, it seems, wore raised as to tire good faith of the parties making the application for mandamus. The clerk of the company stated on oath that he was informed and believed that the demand was presented by a small minority of the members ; that he was also informed and believed from the course pursued that the application was not made bona fide, but in order to furnish the parties indirectly with materials, if possible, for disturbing the established constitution of the fraternity and impugning the election of the governing officers.

It was upon this state o.f facts that the court decided, in that case, that it “ would not, on the application of members of a corporate body, grant a mandamus to inspect tlie documents of the corporation, unless it should be shown that such inspection was necessary with reference to some specific dispute or question pending in which the parties applying are interested ; and that the inspection will then be granted only to such extent as may be necessary for the particular occasion.” Thornton, J., said: “ It is necessary that there should be some particular matter in dispute between the members or between the corporation and individuals in it; there must be some controversy, some specific purpose in respect of which the examination becomes necessary.” He proceeds further to say that if, in making the application, any purpose could have been pointed out, the parties showing they had an interest in the matter in question, the rule might have been granted, and that the decision then made would not prevent a remedy in future, if any grievance should be stated and shown.

Patteson, J., said in the same case: “ The rule must be discharged, from the generality of its terms but he was far from saying that there may not be instances in which a corporator may apply for a mandamus to inspect documents of tlie kind mentioned, if he can show a specific ground of application and that the granting of it is necessary to prevent his suffering injury or to enable him to perform his duties. But some tangible object must be stated. In the case of Hatch vs. the City Bank, 1 Rob. 470, the plaintiff alleged himself to be a stockholder and director of the City Bank, and that for purposes material to the interests of the institution and of the public he desired to examine the stock-ledger of tlie bank and also the transfer-book, and that on making application to the president and board of directors to that effect he was refused the privilege requested and denied access to the books ho desired to see. He prayed for a writ of mandamus to compel a compliance with liis demands. The defendants answered that, conceding the plaintiff's allegations in his petition to bo true (which they did not admit), he is not entitled to a writ of mandamus. The defendants answered, further, that by the charter of the City Bank the entire management of its affairs and control of its books and property are confided to a board of directors, who administer the samé by a majority, and who have the right of deciding when, by whom, and for what purpose the said books shall be inspected, and that the plaintiff has no right in law to demand the inspection at his pleasure of the said books. The judgment rendered in this ease was in favor of the defendants, reversing the judgment appealed from and discharging the rule. The decree was not concurred in by a majority of the members of tlie court; one of the judges was interested in the case, and another was absent on account of sickness. Judges Bullard and Garland were of the same opinion, from which Judge Martin dissented and delivered a long and elaborate dissenting opinion, maintaining the right of tlio relator to inspect the books of the corporation, and held that ho was entitled to the writ of mandamus to enforce the right. He, however, in deference to the views of the two concurring judges, rendered the decree in conformity therewith. In the decision rendered reference is approvingly made by Judge Garland to the English decision wo have noticed, and the case of Hatch was doubtless decided upon the authority of that case. But from a review of all the facts in both cases it appears to us clearly to result from these facts that the judgments in both these cases were placed on the ground, not that the relators were not entitled under any state of facts to the relief sought, but that they had failed through want of precision and definiteness in stating some well-defined purpose, some reasonable cause, and showing that they had some inter - est in the matter ; that they had stated no tangible object; that the more allegation of grounds on which they believe the affairs of a corporation are being improperly conducted, that the officers have been unduly chosen, and complaining of mismanagement in some particular instances not affecting the parties themselves, and such like vague charges, will not entitle a party to a writ of mandamus. Mr. Justice Patteson, as we have soon, said in the case that arose in England (22 Eng. Com. Law Reports, 40,) that the rule must bo discharged, from the generality of its terms.

In tlio case at bar the relator is a large stockholder in the Bienville Oil Works Company. He has in the. very nature of things, and upon principles of equity, good faith, and fair dealing, the right to know how tlio affairs of the company arc conducted — whether the capital of which he has contributed so largo a share is being prudently and profitably employed, or otherwise. He shows that ho has been denied this right by the board of directors, who assume that the clause in the charter of the company which declares that “all the powers of the corporation shall be exercised by a board of directors” deprives him of his individual right to know from personal inspection of the books and papers of tlio company the state of its business affairs. We arc not prepared to say that this assumption is logical, and legally deductible from this clause in the charter. We do not see that the existence of the individual right of one of the stockholders claimed by the relator in this case is incompatible with the power vested in the beard of directors. If the individual light contended for does not remain, it has been extinguished by some law, clear'and explicit in its terms, or by implication necessary and certain. No such law' is shown, and no such irresistible inference follows from the terms used in conferring the powers of the corporation upon a board of directors.

The relator, wo think, has shown that the directors have concealed from him facts which he had a right to know, and especially in this, that by a publication in the Few Orleans Bepublican of date the seventeenth of Fovember, 1875, notice was given to the stockholders of the'eompany to attend a mooting to lie held at the office of the company on the eleventh December following, “ to vote upon a reduction of the capital stock and upon other matters.” In order to comply with this call and to vote under-standingiy, it was certainly requisite for the relator to know the condition of the affairs and business operations of the company and be enabled from this knowledge to act for the best interests of the stockholders and of the company. We think, therefore, ho has brought himself within the rule which entitles him to relief by showing a clear right and a just and useful purpose to be effected.

The views we have expressed are fully sustained by the decision rendered by our predecessors in the case of P. J. Coburn vs. the Union Bank of Louisiana, 13 An. 289.

The objection that, if the relator has the right he claims, it is personal to himself and can not be exercised by another, we regard as having no force. The possession of the right in question would be futile if the possessor of it, through lack of knowledge necessary to exercise it, were debarred the right of procuring in his behalf the services of one who could exercise it. Our opinion, for the reasons stated, is that the judgment of the lower court is erroneous.

It is therefore ordered that the judgment appealedfrom.be annulled and reversed. It is further ordered that the mandamus be made peremptory, and that the president and secretary of the Bienville Oil Works Company and the board of directors of the said company or corporation be, through its proper officers, and they aro hereby ordered, to afford free access to, and give permission to the. relator, P. J. Martin, or to his duly authorized agent, to inspect and examine, within the usual business hours, all the book's, records, accounts, and muniments thereto appertaining, belong'ng to said company, and which relate to the business of said company as an incorporated body, without unnecessarily incommoding the officers and directors of the company; and also to make copies of such papers, accounts, etc., as he may desire, as well as memoranda in writing relating to the same. It is further ordered that the defendants and respondents pay all costs of this suit.

HowEim, J.,

’(7Useniing. I think the relator as stockholder has the right, at seasonable horn's, and for a. legitimate purpose, to examine the books of the corporation; but it is strictly a personal right, and can bo exercised cnly by the stockholder. In 13 An. 289 it w7as said: “ It must be granted that every partner has the right to inspect the books of the partnership, and the mere fact of incorporation can not destroy that right, unless it is taken away by some provision of the charter or some law or by-law of the corporation.” There is nothing in the record that deprives the relator of this right. But ho has no greater right than a partner in this respect, and it can not be successfully urged that a partner can, without the consent of his partners, send a third person as agent to examine tho books of tho partnership. The affairs of a partnership or corporation, as contained in their books, are private, and'not to be known except by consent, or where the production of the books in court becomes necessary.

I therefore dissent to the order as to the agent of relator.

Mr. Justice Morgan concurs in this dissenting opinion.


author: "Wyly, J. MoegaN, J.,

text:
    No. 3917.
    Jean Berthin et al. vs. Crescent City Live-Stock-Landing and Slaughter-House Company, and Said Company vs. F. Frelot & Co. et al. Consolidated for Trial in This Court.
    Considering sections one,three, four, five, of act 118 of tlio acts of 1869, which statute creates the defendant company, and confers all the rights and franchises it enjoys, and considering that part of the title of tho act which declares one of its offeets to be, " to locate tho stock-landing and slaughter-houses,” the conclusion is, that tho location of stock-landings and slauglitor-houscs contemplated .by this statute was a permanent and not a temporary location; that the corporation had no authority to move the grand slaughter-houio which it erected, pursuant to tho third section of this act, from tho right bank to the left bank of the river; that while it lias the right to establish as many slaughter-houses as may bo necessary, the corporation, having located and established the grand slaughterhouse required, as a condition precedent to tho enjoyment of the franchises conferred by said act No. 118, had no right to close it or remove it to another locality, because it was a lawful place for plaintiff to pursue his occupation, and defendant has no right to close it and compel him to go to another place.
    After selecting this locality, and compelling the butchers to repair to it, tho defendant, in tho absence of an express power in the statute, will not be permitted to compel them to discontinúo their business at this place, and follow the corporation to such other locality as its judgment ór caprice may dictate. The intention of tho statute was not to confer this arbitrary power upon the corporation. Its main object was to-protect tho health of the city of New Orleans by requiring the slaughtering of animals to be dono within the designated limits and at one or more slaughter-houses for convenience of inspection by tho proper officer; and tho corporation was invested with certain franchises, provided it located, erected, and oponed to public use by the ilrst day of June, 1809, a grand slaughter-house of sufficient capacity to' accommodate all butchers, and in which to slaughter five hundred animals per day. This slaughter-house the statute clearly requires to be kept open; and the plaintiff was entitled to the injunction which he sued out in the court below.
    from the Eighth District Court, parish oí Orleans. Dibble, J.

      E. K. Washington, Cotton & Levy, William Grant, E. T. & E. J. Eellowes, and 8. Belden, for plaintiffs and appellants in the cases of Ber-thin et al. vs. Slaughter-House Company.

      Semmes & Mott, John Bay,
      and A. Voorhies, for defendant and appellant.

      Semmes & Mott, for plaintiff in the ease of Slaughter-House vs. Frelot et al., one of the consolidated cases.

      8. Belden, E. Ii. Washington, and Cotton & Levy, for defendants.
   "Wyly, J.

Plaintiff alleges that he is by occupation a butcher and is engaged in slaughtering animals for food in the parishes of Orleans, Jefferson, and St. Bernard; that by virtue of act 118 of the acts of 1869, known as the Slaughter-House Act, petitioner and all others engaged in slaughtering animals in said parishes were j equired under penalty to slaughter at such place as might be located by the Slaughter-House Company under the requirements and restrictions of said law; that said company located their stock-landing- and slaughter-house on the right bank of the Mississippi river in the parish of Orleans, below the present depot of Morgan’s Opelousas and Texas Railroad; that said company intended to have completed said stock-landing- and slaughter-house on or before the first of June, 1869, and at said date of its pretended completion required the slaughtering of all animals intended for food in the parishes of Orleans, Jefferson, and St. Bernard to be done at said place from said date.

Petitioner represents that in obedience to law he did his slaughtering-in said place; that he is vested by law with the right to continue his business of slaughtering upon the site or place located by said company, on the right bank of the river as aforesaid; that said company has removed many tilings necessary for the slaughtering of animals from said slaughter-house to. what is known as the Cavaroc Slaughter-House, located on the left bank of the Mississippi river, just below the United States Barracks; and that said company is about to remove all facilities for slaughtering at said place and to tear down the buildings and to compel the abandonment of slaughtering at said place. He avers that said acts are in direct violation of law and of the right of petitioner to slaughter in said slaughter-house and be provided .with every facility for slaughtering- and transporting the meat across the river to market. He claimed damages in the sum of ñve thousand dollars, and prayed for an injunction, which was granted by the court.

The answer alleges that in compliance with the requirement of the third section of the act mentioned in plaintiff’s petition, being act 118 of the acts of 1869, this respondent located and erected a slaughter-house, such as is prescribed in said third section, at the place mentioned in the petition, on the right bank of the Mississippi river; that subsequently and long prior to the institution of this suit, this respondent, at the request and solicitation of nearly all the butchers engaged in business in the parish of Orleans, located and opened another slaughter-house on the left bank Of the Mississippi river at the Cavaroc plantation, as described in the petition; that said Cavaroc Slanghter-House is in all respects of the dimensions required by the statute for the accommodation of all .butchers, and of tho capacity to enable them to slaughter five hundred animals per day; that in consequence of the Cavaroc Slaughter-House being ample and sufficient for all the purposes contemplated by law and of its superior advantages and conveniences for the business of the butchers, the slaughter-house on the right bank was nearly deserted, and it became unnecessary to keep it up for the convenience of the public; and this respondent has therefore, in the exercise of its legal rights, determined to close up said slaughter-house on the right bank of tho river, and was engaged in removing'the facilities and appliances necessary to the slaughtering business until arrested by this suit. Respondent avers that, under said act 118, the right of locating and erecting slaughterhouses at any point within the designated limits is conferred on respondent, and tho right of changing the location or abandoning one slaughterhouse and erecting another at the option of this respondent is also granted, subject to the duty of always having in operation adequate slaughter-house accommodations as prescribed by law. Respondent further avers that plaintiff has, in violation of said act 118, slaughtered animals intended for food in other places than at the slaughter-house of respondent, thereby incurring the penalty prescribed in said act, of two hundred and fifty dollars for each animal so slaughtered; that tho aggregate amount of penalty so incurred is fifty thousand dollars, for which judgment is prayed in reconvention. Respondent also prayed for an injunction against plaintiff, which was not granted.

At the trial the court below rejected plaintiff’s demand and dissolved the injunction; it also rejected respondent’s reconventional demand and refused its application for an injunction.

From this judgment plaintiff has appealed, and respondent, joining in the appeal, prays an amendment in regard to the reconventional demand and the injunction prayed for in tho answer.

Tho'important inquiry in this case is a question of law. Had tho respondent the right to change the location of the grand slaughter-house which it located and erected prior to the first day of June, 1869, pursuant to tho requirement of said act 118, and which was a condition precedent to tho enjoyment of the monopoly and franchises conferred by said act ? Had said corporation tho right to abandon the location and tear down the slaughter-house on the right bank of the river and establish as a substitute the Cavaroc Slaughter-House, situated on the left bank of the river below the Barracks ?

The solution of this question will require an examination of several sections of act No. 118 of the acts of 1869, the statute creating the defendant company and conferring all the rights and franchises it enjoys.

Section one provides that after the first of June, 1869, it shall be unlawful to land, keep, or slaughter any cattle, beeves, calves, sheep, swine, or other animals at any place within the parishes of Orleans, Jefferson, and St. Bernard, except that the Orescent Oity Live-Stock-Landing and Slaughter-House Company may establish themselves at any point or place hereinafter provided; and said section provides a penalty against any person doing business or doing any act in contravention thereof.

Section three provides “ that said company or corporation is hereby authorized to establish and erect at its own expense, at any point or place on the east bank of the Mississippi within the parish of St. Bernard or in the corporate limits of the city of New Orleans below the United States Barracks, or at any point or place on the west bank of the Mississippi river below the present depot of the New Orleans, Opelousas, and Great AVestern Railroad Company, wharves, sheds, yards, and buildings necessary to land, stable, shelter, protect, and preserve all kinds of horses, mules, cattle, and other animals from and after the time such buildings, yards, etc., aro ready and complete for business and notice thereof is given in the official journal of the State; and the said Crescent City Live-Stock-Landing and Slaughter-House Company shall have the sole and exclusive privilege of conducting and carrying on the live-stock landing and slaughter-house business within the limits and privileges granted by the provisions of this act, and cattle and other, animals destined for sale or slaughter in the city of New Orleans or its environs shall be landed at the live-stock landings and yards of said company, and shall be yarded, sheltered, and protected, if necessary, by said company or corporation.” This section further provides certain fees, and also for the collection of certain charges, and it prescribes a penalty for the violation of its provisions. It also declares as follows: “The company shall, before the first of June, 1869, build and complete a grand slaughter-house of sufficient capacity to accommodate all butchers and in which to slaughter five hundred animals per day; also, that a sufficient number of sheds and stables shall be erected before the date aforementioned to accommodate all the stock received at this port, all of which to be accomplished before the date fixed for the removal of the stock-landing as provided for in the first section of this act, under penalty of a forfeiture of their charter.”

■ Section four provides “ that the said company or corporation is hereby' authorized to erect at its own expense one or more landing-places .for live stock, as aforesaid, at any points or places consistent with the provisions of this act, and to have and enjoy from the completion thereof, and after the first day of June, 1869, the exclusive' privilege of having landed at their wharves and landing-places all animals intended for sale, or slaughter in the parishes of Orleans and Jefferson, and are hereby also authorized (in connection) to erect at its own expense one or more slaughter-houses at any points or places consistent with the provisions of this.act, and to have and enjoy from the completion thereof, and after the first day of June, 1869, the exclusive privilege of having slaughtered therein all animals the meat of which is destined for sale in the parishes of Orleans and Jefferson.”

Section five provides “ that whenever said slaughter-houses and accessory buildings shall be completed and thrown open for the use of the public-, said company or corporation shall immediately give public notice of thirty days in the official journal of the State, and within said thirty days notice, and within and from and after the first day of June, 1869, all other stock-landings and slaughter-houses within the parishes of Orleans, Jefferson, and St. Bernard shall be closed, and it will no longer be lawful to slaughter cattle, hogs, calves, sheep, or goats, the meat of which is intended for sale within the parishes aforesaid, under penalty,” etc.

Considering the foregoing provisions and that part of the title of the act which declares one of its objects to be “to locate the stock-landings and slaughter-houses,” our conclusion is that the location of stock-landings and slaughter-houses contemplated by this statute was a permanent and not a temporary location; that the corporation had no authority to move the grand slaughter-ho.use which it erected pursuant to the third section of this act from the right bank to the left bank of the river; that while it has the right to establish as many slaughter-houses as may be necessary, the corporation having located and established the grand slaughter-house required as a condition precedent to the enjoyment of the franchises conferred by said act 118, having' thrown it open to public use and published the required notices in the official journal, and having compelled plaintiff and all other butchers to repair to this slaughter-house to pursue their occupation, had no right to close it or remove it to another locality, because this was a lawful place for plaintiff to pursue his occupation, and defendant had no right to close it and compel him to go to another place.

The moment defendant opened this slaughter-house in the exercise of a power conferred by the statute, it became as lawful a place for slaughtering and as permanent as if that building and that locality had been specially designated in the statute. It was a place where the act authorized. the butchers to pursue their business, and where the defendant had stipulated and agreed to furnish the necessary facilities and accommodations for slaughtering. After selecting this locality and compelling the butchers to repair to it, the defendant, in the absence of an express power in the statute, will not bo permitted to compel them to discontinue their business at this place and follow the corporation to such other locality .as its judgment or caprice may dictate. The intention of the statute was not to confer this arbitrary power upon the corporation. Its main object was to protect the health of the city of New Orleans by requiring the slaughtering of animals to be done within the designated limits and at one or more slaughter-houses for convenience of inspection by the proper officer; and the corporation was invested with certain franchises provided it located, erected, and opened to public use by the first day of June, 1869, “ a grand slaughter-house of sufficient capacity to accommodate all butchers and in which to slaughter five hundred animals per day.” * * * This slaughter-house the statute clearly requires to be kept open, and the plaintiff was entitled to the injunction which he sued out in the court below. The record does not disclose a ■case entitling the plaintiff to damages.

The reconventional demand and the injunction applied for by defendant can not be allowed.

It is therefore ordered that the judgment herein be annulled, and it is decreed that the injunction herein be made perpetual, and that defendant be required to re-open the slaughter-house on the right bank of the Mississippi river and afford plaintiff and other butchers all necessary facilities and accommodations for pursuing their occupation.

It is further ordered that the defendant pay costs in both courts.

MoegaN, J.,

Oittsenling. The question of importance in this case is whether the defendants had the right to remove their slaughter-house from one bank of the river to the other.

It seems to me that this question is answered by the third section of the act known as the Slaughter-House Act, which provides “ that said company or corporation is hereby authorized to establish and erect at its own expense, at any point or place on the east bank of the Mississippi river within the parish of St. Bernard or within the corporate limits of the city of New Orleans below the United States Barracks, or at any point or place on the west bank of the Mississippi river below the depot ■of the New Orleans, Opelousas, and Great Western Railroad Company, ■wharves, stables, sheds, yards, and buildings necessary to land, stable, ■shelter, protect, and preserve all kinds of horses, mules, cattle, and other animals,” etc.

Plaintiff contends that having erected a slaughter-house on the right bank of the river, defendants can not tear it down or remove it to the left bank. In my opinion there is nothing in the act which justifies this position. There is nothing in the act which prohibits them from removing from one bank of the river to the other; nothing which declares that once established their slaughter-house on the right or left bank, they shall continue it where first established for any stated length of time.

I can understand that if the defendants had induced the plaintiff to believe that the slaughter-house which they had erected was to bo permanently located there, and he had gone to any expense in order to enable him to carry on his business at that place, and the slaughterhouse was removed without good reasons therefor, that the defendants would be liable to him in damages. But it seems to me that the defendants’ right to remove from one side of the river to the other, within the territorial limits designated in the act, is clear and distinct.

I therefore dissent from tho opinion of the majority.

Rehearing refused.


author: Wyly, J. Ludelijíg, C. J.,

text:
    No. 6119.
    Patrick Higgins vs. C. C. Haley.
    This caso being before this court in April, 1871, ivas remanded with direction to the district j udgo to hear the testimony offered by plaintiff on his motion for a new trial. This decree divested this court of jurisdiction and placed the ease before the court a exaa for the purpose of hearing evidence and trying the motion for a now trial. This trial was subsequently had, according to the direction from this court, tho testimony heard, found ineffective, and tho rule for a now trial discharged.
    Instead of taking an appeal from the final judgment on tho merits after the discharge of tho rule for a new trial, tho counsel of plaintiff and defendant agreed to submit the, case on tho record on file in this court when the judgment of April, 1871, was rendered, no timo being fixed for said submission. The matter was delayed for more than twelve months, and was neglected on account of tho ill-health of plaintiff’s counsel.
    Plaintiff now takes a rule on defendant to show cause why the agreement should not bo carried into effect and tho caso submitted on the old record on file in this court at the. timo the case was decided in April, 1874. But when that decision was rendered, this court was divested of jurisdiction, and tho ease passed as fully under the control of the district court as If no appeal had been taken.
    More than one year has elapsed, and there has been no order of appeal granted by the judge; no bond has been filed, and no transcript. Assuming- that tho agreement of counsel eould bo substituted for an order of appeal and bond, no action has been taken thereon within tho time allowed for tho exercise of tho right of an appeal. The agreement of counsel can not vest this court with jurisdiction of a ease in the absence of an order of appeal and an appeal bond. Tho Code of Practice points out the form to be pursued to transfer jurisdiction from tho inferior courts to the Supremo Court. The rule must bo discharged.
    ON plaintiffs motion that defendant show cause at the time fixed why the agreement to submit the above entitled caso should not be submitted on the briefs now on file and to be filed within ten days.

      Hays & Hew, for plaintiff.

      J. Livingston, for defendant.
   Wyly, J.

In April, 1874, this case was before this court and the judgment was annulled and reversed, and the case remanded with direction to the district judge to hear tho testimony offered by plaintiff on his motion for a new trial on tlio ground that tho jury had been improperly influenced. See the case reported in 26 An. 868. This decree divested this court of jurisdiction and placed the case before the court a qua for the purpose of hearing evidence and trying the motion for new trial. This trial was subsequently had, and the mover failed to establish tho .charge that the jury had been improperly influenced, and tho court therefore discharged tho rule for a new trial. Instead of taking an appeal from the final judgment on the merits after the rule for now trial .was discharged, tho counsel for plaintiff and defendant agreed to submit the case on the record on file in this court at tho time the judgment of April, 1874, was rendered.

No time was fixed within which said submission of the case should be made. The matter was delayed for more than twelve months, and was neglected on account of the ill-health of plaintiffs counsel.

Plaintiff now takes a rule on defendant to show cause why the agreement should not bo carried into effect and tho case submitted on tho old record on file in this court when the case was decided in April, 1874.

When tho decision of 1874 was rendered this court was divested of jurisdiction, and tho case passed as fully under the control of tho district court as if no appeal had been taken. Now, what gives this court jurisdiction ? More than one year has passed and there has been no order of •appeal granted by tho judge, no bond has been filed, and no transcript lias boon filed. Is tho judgment of the court below to stand forever ? Assuming that the agreement of counsel could bo substituted for an order of appeal and bond, no action has been taken thereon within tho time allowed for tho exercise of the right of an appeal.

But the agreement of counsel can not vest this court with jurisdiction of a case in the absence of an order of appeal and an appeal bond. See tho cases of Dupré vs. Mouton, 23 An. 543; Norris vs. Warren, 22 An. 458; Louisiana State Bank vs. Barrow, 24 An. 276; Moore vs. Simms, 21 An. 649.

Tho Code of Practice points out the form to be pursued to transfer jurisdiction from tho inferior court to the Supreme Court.

It is therefore ordered that the rule herein bo discharged at tho costs of the mover.

Ludelijíg, C. J.,

dissenting. I am constrained to dissent in this case. When this case was before this court the judgment was annulled and reversed, and tho case was remanded on the ground that the court a qua should have received evidence on the motion for new trial. This court never passed upon tho merits of the case. After- tho case was returned to the lower court the now trial was refused, and thereupon, to save time, trouble, and expense, it was agreed that, without any further action on the part of the district court, the caso might be submitted to this court on the record already filed in this court. I can not imagine why this agreement is not valid. ■ Ali agreements may be made which are not prohibited. I know of no law forbidding- such an agreement. Certainly no article of the Code of Practice forbids it. Nor has this court ever decided that parties could not make an agreement like the one in question. The cases cited are not in point. In Moore et al. vs. Simms, 21 An. 649, it was decided that an affidavit of a district judge that an order of appeal had been granted was not sufficient to maintain the appeal— that not being the way to prove such fact.

In Norris vs. Warner, 22 An. 458, it was decided that “ the entry that a motion for appeal was filed, does not show that it was granted.”

In Dupré, etc., vs. Mouton, it was decided that an agreement entered on the minutes of the court, before judgment, giving to either party a devolutive or suspensive appeal from such judgment as might be rendered by the judge who had the case under advisement, was not an appeal. 23 An. 543.

In the case of the State Bank of Louisiana vs. D. N. Barrow et al., 24 An. 276, it was said: “We also find the agreement of counsel that one transcript shall be made for the two appeals taken, in this case,” and it was held that “ as neither of the appeals has been perfected, one for want of an appeal bond, the other for want of an order of appeal,” the appeal had to bo dismissed. It is true, in that case, it was said that consent could not give jurisdiction, but it was an obiter dictum.

The case under consideration is very different from the above cases. From the judgment of the lower court an order for an appeal teas regularly obtained, and the transcript of appeal was duly filed in this court, but the case was remanded on an exception, as already stated. After the appellant had failed to obtain the advantage expected by that exception, the agreement to submit the case on the record filed was entered into. If any valid objection could be urged against the submission under that agreement, it would be that the appeal was premature, as no judgment had been rendered by the court a qua, the former judgment having been annulled and reversed. But I can not appreciate the force of the objections urged against the validity of the agreement of the parties to submit to this court the determination of their disputes on a record which contained a judgment and an order of appeal, even though that judgment had been technically reversed for the purposes stated. It would be a vain thing to require the judge to render anew the same judgment, and take another order of appeal, and file a new transcript of appeal in this court, in order to enable this court to decide the case. Litigants ought not to be required to do a vain thing. But I understand the only objection urged by counsel for appellee is that the case was not submitted in time. No time is specified within which the case was to bo submitted, but if the delay were unreasonably long, the appellee was at least as much in fault as the appellant. Nothing prevented him from submitting the case if he had chosen to do so. Besides, the illness of the appellant’s counsel was an an excuse for his delay in submitting it, I think that justice requires that the case should be submitted under the ■aforesaid agreement.

MORGAN, J. I concur in this opinion.