author: DeBlanc, J. Manning, C. J. Marr, J. Egan, J. DeBlanc, J. Spencer, J.

text:
    No. 6682.
    State ex rel. Fred. Duffel, District Attorney pro tem., et al. vs. Morris Marks.
    A party Is not eligible as District Judge who lias not practiced law in this State for two years, next preceding his election.
    In legal contemplation, a party can not be said to have practiced law, even though, as a matter of fact, ho may have dono so, if he has not previously qualified to practice, by complying with the requirements prescribed by tho constitution.
    Because one has acted as District Attorney, he can not be said, in a constitutional sense, to have “ practiced law.”
    A mere resolution, passed by the Board of Administrators of the University of Louisiana, that the degree of bachelor of law shall be granted to a certain person, and directing the President of the University to confer said degree, and the usual diploma, followed by a refusal of the President to obey the direction, has not the character and authority of a diploma.
    Tho degree of bachelor of law, conferred on a party by tho Board of Administrators of the University of Louisiana, will not authorize him to demand of this court a. license to practico law in this .State, unless the diploma is signed by the President of the University, and the Professors of tho Department in which the student has graduated.
    APPEAL from the Fourth Judicial District Court, parish of Ascension. Maher, J., acting for Flagg, J.

      J. C. Egan, Assistant Attorney General. Frederick Duffel, District Attorney pro tem., E. E. Pugh, E. P. Poché, H. F. Duffel, B. E Sims, B. P. Landry, and T. B. Winchester, for plaintiff and appellant.

      J. D. Augustin, Gus. A. Breaux, St. M. Berault, Emile Legendre, Jno. If. Ilsley & Son, William B. Mils, J. L. Gaudet, John Gheevers, L. De Porter, Gervais Leche, for defendant.
   On Motion to Dismiss.

The opinion of the court was delivered by

DeBlanc, J.

The transcript, in this case, is a duplicate of the transcript in case No. 6681, and the motion to dismiss the appeal, filed in this duplicate, is — with but a slight difference — the identical motion already passed upon by this court. That difference is simply this: the last day ■of the delay fixed by law for the return of such appeals, occurring on a Sunday, the district attorney pro tempore, apprehending the very objection raised by defendant, caused to be filed in this court, on tho ninth day after the judgment was signed, one of the transcripts herein mentioned; the other transcript was filed on the eleventh, and could not have been filed on the tenth day, which, as admitted, was a Sunday. That both were filed in time is no longer an open question.

C. P. 318, 575. 8 L. 223. 6 R. R. 20. 14 A. 105. 24 A. 333.

The motion to dismiss is overruled.

On the Merits.

The opinion of the court was delivered by

Manning, C. J.

The object of this suit is to test the right of the defendant to the office of District Judge of the fourth judicial District. It is alleged that he was elected to that office in November 1876, but that he can not hold it because of ineligibility, not having ¿ill of the qualifications prescribed by the Constitution. The special qualification wanting is, that he shall have practised law in this State for two years next preceding his election, art. 84.

The respondent, after making a general denial, bases his claim to the rightful occupancy of the judgeship upon a “ degree of Bachelor of Law, duly conferred by the administrators of the University of Louisiana on the 24th. of April 1872, ” and in virtue of his election and commission and qualification as district attorney of the same district in 1872, the duties of which latter office he performed from that time until his election as judge. He alleges that he has practised law in this State for two years next preceding his election, the right to jiractice being based upon the Degree above mentioned, and the actual practice upon his performance of the functions of prosecuting officer, and upon certificates of clerks of courts and of litigants that he had practised.

It can not bo presumed that the organic law, in using the words, “shall have practiced law in this State,” can intend any thing but a practice under legal permission. Those who frame a fundamental law, or any law, can not be supposed to have in contemplation the conferring a benefit in express terms upon a violator of the law. If therefore a person shall practise law, without first obtaining legal permission and in defiance of prerequisites ordained as of essential compliance, he can not base upon the fact of having thus practised a legal right to do something else, of which a lawful practice is the condition precedent. The certificates of clerks, and the testimony of litigants, that the defendant had practised law for two years is of little consequence, unless they are accompanied by a satisfactory exhibition of the authority from which he derives his legal right to practise.

Nor is the fact of holding the office of District Attorney proof that the holder had ‘practised law’'in the sense of those words in the Constitution, for the same instrument fails to require that those officers shall be lawyers, art. 92. It is argued that the Constitution must necessarily intend ex vi termini when it provides for the office of district attorney, that he shall be an attorney at law, but it may be answered that the same instrument must equally intend that a parish judge should have been a lawyer, for men must be lawyers before they can in any proper sense be said to be judges, and if it requires a knowledge of law to be a district attorney, how much greater knowledge does it require to administer the succession system of our State.

Tho defendant’s eligibility to the district judgeship depends upon his legal right to have practised law for two years next preceding his election. That right emanates from the proceedings of the Board of Administrators of tne University of this State on April 24th, 1872. They shall be copied in full:

“ At a meeting of the Board, held this evening, the following preamble and resolutions offered by Mr. Fellows, was adopted by a vote of five to three in the negative, and a motion to reconsider which vote was laid on the table, viz.:

Whereas, the President of tho University being present, and having stated that it would be impossible for him to declare which of the rejected students received three favorable votes on the examination by the professors, and which did not;

Therefore, be it resolved that the degree of Bachelor of Laws be granted to and conferred upon the following members of tho class of 1871 — 72 of the Law department of the University of the State of Louisiana, namely (here follow several names and among them Morris. Marks) and that the President of the University be directed to confer upon them the said degree of Bachelor of Laws, and that tho usual diplomas be granted and issued to them. ”

The text of the law invoked by the respondent is ; — “ The administrators of the University of Louisiana shall have the right of conferring,, under the common seal, on any person whom they may think worthy thereof, all literary honors and degrees known and usually granted by any university or college in the United States or elsewhere.

The degree of Bachelor of Law'and Doctor of Medicine, granted by them, shall authorize the persons on whom it is conferred to practice law, physic and Surgery in the State. ” Rev. Stats. 1870 Sec. 127.

No diploma was ever issued to the defendant. The President of the University never conferred upon him the degree, as the resolution of the administrators directed. The Board resolved that the degree be granted to and conferred upon him, and to shew that their own construction of the scope of the resolution was, that the act was inchoate, proceeded on the instant and in the same sentence to direct that the additional, and supplemental act be done which was necessary to make the conferring the Degree complete, i. e. the President must confer it.

It is manifest besides that the two clauses of the law above quoted refer to two different kinds of Degrees,'one of which is purely honorary and is conferred upon persons already distinguished in some branch of literature, science, or other learning, and the other is conferred upon students who have passed the examination necessary to entitle them to it. The first of those degrees is to be conferred upon any persons ■whom the Administrators may think worthy thereof, and it is to be a literary honor, but the last is to have the greater effect of authorizing the recipient to practice law or physic. Can it be reasonably contended, •or inferred, that power is thus given to the Administrators to introduce to the public, or rather to impose upon it, a person authorized to prescribe for the ailments of the body who has never read a line nor heard a lecture upon any branch of medicine ? If it be true that the degree of doctor of medicine can be conferred by the administrators upon whomsoever they may think worthy thereof, although the recipient may bo confessedly without diploma from any Faculty, and if that Degree thus conferred entitles him to practice physic, then an innovation has been made upon the established usages of universities which carries with it dangers of a most appalling character. And the same is of course true in the department of Law.

The statutes upon the subject must bo construed together, and as a whole. In fact, the book known to the profession as the Revised Statutes of 1870 is but one Act. That revisal embodies the various laws on this matter under the head of ‘ Attorney at Law. ’ Secs. 111-130. The substance of those sections, necessary for consideration now, is as follows; — Any citizen of the United States, possessing the qualifications of a legal voter, except that of residence, shall be admitted to practice as an attorney at law in any court of this State, upon obtaining a license from the Supreme Court of this State. That Court shall grant licenses to applicants possessing the qualifications already mentioned, 1st. to all graduates of the Law Department of the University who shall produce, evidence of good character; 2nd. to those who shall produce a license from any other State, or a diploma from any law school of any other State with evidence of good character, and who shall have been examined in open Court touching their fitness to practice law in the courts of this State, and who shall have been found qualified; or who, having a license from a Superior Court of any other State, shall have been examined by one o’f the judges of the Supreme Court, or by two District judges, and have been found qualified; 3d. to those who, upon examination before the Supreme Court, according to its regulations, shall have been found qualified.

It is not pretended or alleged that the respondent had or has a license from any other State, or a diploma from any law school of any other State, or that he was over examined by the Supreme Court and found qualified, and therefore he is not in either the second or third classes. It is not pretended or alleged that he is a graduate of the Law Department of the University of this State, which would entitle him to •a license from this court without examination by its members. It is admitted that he never was licensed by this Court at all — that he never received any diploma from the Faculty of the law school, and it is proved that the degree of Bachelor of Law was not conferred upon him, unless the resolution of the Board of Administrators that that degree be conferred upon him, and the direction to the president to confer it upon him, be held to be equivalent to the actual conferring of the degree.

We do not think a mere transcript of a resolution of the Board o.f administrators stands in the place of a diploma and a degree, and when sec. 127 enacts that those upon whom the degree of Bachelor of Law has been conferred by the Administrators of the University shall be authorized to practise law, it must be construed with sec. Ill which prescribes that a license from the Supreme Court of the State must be obtained in order to enable any one to practise law, and with Sec. 112 which authorizes graduates of the Law Department of the University to be admitted to practise without examination by the Court, and because they are graduates. And that this construction of Sec. 127 (which is identical with Sec. 1359) is correct, is conclusively shewn by its concluding clause, for immediately after the provision that the degree of Bachelor of Law when conferred shall authorize the person receiving it to practise law, it is enacted that all diplomas granted by the Board shall be signed by the President, and the professors of the department in which the student may have graduated. And elsewhere it is enacted that the examination of candidates for their degrees in the medical and law departments shall be under the exclusive control of the Faculty of those departments respectively, see. 1368.

The respondent was not a graduate of the Law Department of the-University. The resolution of the-"administrators, which is the sole basis of the respondent’s right to practise law, shews that he was rejected when he applied to be graduated. “ Whereas the President of the University being present, and having stated that it would be impossible for him to declare which of the rejected students received” etc. Having been rejected, and being without diploma, without degree, without a license from this Court, the respondent nevertheless insists that he has practised- law, as the Constitution requires he shall do for a given time, and is therefore eligible to the office of District Judge. We can not hold that the unauthorized practice of a profession entitles one to its highest rewards and honors, when its lawful practice is a condition or prerequisite of eligibility to them. Some of the members of the convention protested against the'adoption of the Judiciary system as is now contained in the Constitution. The short time required for practise as a condition of eligibility to the district judgeship was one of the grounds of protest. The safeguards for the protection of the legal profession and the judiciary, afforded by the present Constitution, are slender enough. The portals by which admission to the legal edifice is ■obtained are widened by the Constitution of 1868 beyond former precedent, and we can not enlarge them further without the express mandate of the law. The law has not thus commanded.

We have divested the case of all extraneous matter, of those features which are not essential to be noticed. For instance, Flagg, the former district judge was made one of the relators. 'On exception, his right to join the district attorney in the action was refused properly, and it remained good upon the relation of the latter officer alone. So, a new trial was prayed on the sworn allegation of the discovery of new and important evidence, and this was improperly refused, but the counsel for the relator in oral argument was content to rest the case upon the evidence received on the trial. The brief of the counsel for the respondent discusses this new evidence, which comes up in the record appended to the motion for a new trial, and from which it appears that the resolution of April 24th. 1872 was rescinded by the administrators •on the 10th. of the following month, and it is argued that the Board could not, by thus rescinding their previous resolution, deprive respondent of a right which was vested in him by it. If the new evidence were before us properly we might be of the opinion that this is assuming that the respondent had a vested right upon the mere adoption of the resolution, but it is not necessary that wo should pass upon that question.

We think the respondent was and is ineligible to the office of District Judge, and therefore

It is ordered, adjudged, and decreed that the judgment of the lower court is avoided and reversed, and that the respondent Morris Marks is not eligible to the office of Judge of the Fourth judicial District of this State, which office is now declared vacant, and that there be judgment in- favor of the relator against the respondent for costs of both courts.

Concurring Opinion.

Marr, J.

I do not think it was the intention of the legislature to «empower the University of Louisiana to confer the degree of Bachelor at Law or Doctor of Medicine on any other persons than such as had been students and had graduated in the Departments of Law and Medicine respectively.

Universities consist of colleges and departments ; and I know of no university which confers the first degree, whether Bachelor of Arts, Bachelor at Law, or Doctor of Medicine, on any other than the students who have graduated in the academical department, or the law department, or the department of medicine, under its jurisdiction, except the University of London, founded in 1836, which has no schools, or colleges, or halls of its own, or subject to its jurisdiction; and which admits to its degrees such as can pass the rigid examinations which it prescribes, without respect to the schools or colleges in which they may have pursued their studies.

The Act of 1855, Relative to Attorneys, page 121, requires this court to grant license to practice law to graduates of the law department of ■the University of Louisiana ; and this phraseology: “ Graduates of the Law Department,” is used in- all subsequent acts on the same subject.

The Act of 1855, relative to the. University of Louisiana, page 420, ■section nine, authorizes the administrators to confer, under their common seal, on any person whom they may think worthy, “all literary honors and degrees known and usually granted by any university or ■college,” etc.

This evidently empowers the administrators to confer the honorary degrees, which are not dependent on examination, and are complimentary merely.

The next clause of this section provides that the degree of Baehelor ■at Law and Doctor of Medicine, granted by the administrators, shall authorize the person to practice law, physic, and surgery in this State.

.We must refer to othér parts of the statute, to ascertain who may be admitted to these primary degrees, Bachelor at Law, and Doctor of Medicine; and we And that the examination of candidates for these degrees is under the exclusive control of the faculties of law and medi■cine, respectively. Section 18, page 421.

I conclude, therefore, that the administrators have no authority to .■grant these primary degrees to any other than students who have passed their examination satisfactorily in the one or the other of the departments; and that the latter clause of section nine refers to and means ■“ graduates ” in the law department, -and graduates ” in the department of medicine; and that the legislature, when in acts relative to attorneys it uses the words “graduates of the law department,” does not mean to extend the rights and privileges which it grants to such ■“ graduates ” to persons not “ graduates ” of that department, upon whom the administrators may have chosen to confer honors and degrees.

In my opinion the power of graduation in law or medicine belongs to the faculty of law or of medicine exclusively; and that neither the •administrators nor the judicial tribunals can, lawfully, nor do I think they ■should have power to control the faculties of th'ese departments in the •exercise of this discretion, which is wisely granted to them by section ■eighteen of the act of 1855, section 1368, of the Revised Statutes ; and ■which is in accordance with the practice of universities in the United States and elsewhere.

I think article eighty-four of the Constitution, which requires, for eligibility to the judgeship of the district court that the person shall have practiced law two years, means that he shall have practiced in virtue of lawful authority, a license granted in conformity to the laws of the State.

It is to be regretted that the students, including defendant, who were refused graduation by the faculty of the law department of the-university, if they felt aggrieved, and believed themselves qualified to practice law, did not present themselves for examination to the examining committee appointed by this court. If they had succeeded before-that committee they would have been licensed by the court, and would thus have obtained all the substantial benefits of graduation in the law department of the university.

I concur in the decree pronounced by the Chief Justice.

Concurring Opinion.

Egan, J.

I do not think that the possession or exercise of any office for which that qualification is not required constitutes one “ learned in the law,” in the sense in which it is used in the constitution as a necessary qualification for a district judge.

It is not pretended that the defendant ever obtained a license, eo nomine, to practice law either in Louisiana or elsewhere. There is no question in this case of the power, or exercise of the power of the Board of Administrators of the University of Louisiana, to confer honorary degrees of any class upon a person not a student, nor of the effect of such degrees when conferred. The evidence in this record, which is furnished by the defendant himself, shows that he was a student of the University, that he was examined for his degree by the professors constituting the Faculty, and, failing to pass a satisfactory examination, that he was rejected by the Faculty, who refused to recommend him to the Board of Administrators as one qualified to receive his diploma or to sign his diploma in accordance with the law and the usual rules of the University, when a student has passed a satisfactory examination p but that notwithstanding this rejection and failure of the defendant to be pronounced qualified or “ learned in the law,” by those who are most competent to do so, and whose exclusive province it is so to pronounce, the Board of Administrators undertook to pass and did pass a resolution, that his degree be conferred upon him. Upon this resolution alone the defendant rests his right, not only to a diploma, to his degree of bachelor of laws, but he further claims that that resolution of the Board of Administrators of itself, and without any thing further, constitutes him learned in the law, and entitles him to practice law in all the courts of Louisiana. The law creating the University and regulating its departments and powers, R. S. 1870, sec. 1360, provides that all diplomas granted by them, (i> e. the Board of Administrators) shall be signed by the president of the University, the chairman of the board, and the professors of the department in which the student may have graduated, and by such other officers of the University as may be provided for by the laws of the University, and that it must be under the seal of the University. Sec. 1359.

This, then, is the evidence of graduation, of a degree conferred, which is contemplated and provided for by law, and which is in contemplation of every student who enters the portals of the University. Can it be said, then, that the degree is complete, and that all the rights and privileges derived from it exist till all this evidence of concurring will on the part of the officers of the University is obtained ? If the defendant was really entitled to his degree and to have the diploma executed and delivered to him, when so much depended upon it why did he not present himself before the courts and compel its execution and delivery, and why, if the resolution of the board, upon which alone he relies, had all the effect of the diploma, which it simply directed to be conferred, did he not present himself with it before this court and have the judicial recognition of his right to practice law, which the law' contemplates, R. S. Ill and 112, in conjunction with which the provisions of article 127 must be read, as they are all on the .same subject-matter — parts of the same statute — and must be construed in harmony ?

The University of Louisiana was established as an institution of learning, with a faculty of learned men in each department, with a prescribed course of study, in each of which proficiency (i. e.) learning, in which that faculty are made by the very terms and by the evident intent and reason of the law,-“ exclusive” judges. See R. S. section 1368.

The only power of the administrators, many of whom are not themselves learned in any department, is to grant the diploma after the student shall have passed his examination before the learned professors, and has been by them recommended for his degree. It is true that the Board of Administrators have the duty and power under the law to appoint a president and professors, but once that appointment has been made, that power is exhausted, unless a vacancy occurs, and once they receive their appointments, the independent and exclusive powers and duties of the professors are as clearly established aDd defined as those of the administrators themselvfes, of whom as to these powers the faculty is as independent as is the Board of Administrators of them. The very objects and aims of the University would be subverted were the theory of the defendant to prevail that the examination by the faculty means nothing — that the prescribed course of study means nothing — and that a mere 'whim, a caprice of a board, in large part composed of men not themselves qualified for the task, should be able, against the protest of those who are especially qualified, to confer the honors of the institution upon the faithful and competent and the unfaithful and incompetent student alike. The absurdity of such an argument is apparent. The practice of all institutions of learning is against it, and the particular act of which the defendant claims the benefit was not only without warrant' of law, but directly in the teeth of the spirit and letter of the law and a fraud upon it.

Eor these reasons, in addition to those given in the opinion of the Chief Justice, I concur in the decree in this case.

'This opinion is intended to be applicable to both cases versus the same defendant.

Dissenting Opinion.

DeBlanc, J.

Defendant was elected and commissioned as J.udge of the Fourth District of the State — this is admitted. From the month of December 1872, he practiced law in and out of his district — this is established. It is — however—denied that he ever was an attorney at law.

To repel that charge, defendant has introduced in evidence a copy of the proceedings of the Board of Administrators of the University of Louisiana, at a called session held on the 24th of April 1872, and held— I am convinced — to consider and discuss only one subject.

The members of the Board were certainly advised of the cause of that extraordinary session — and, right or wrong, whatever was proposed or done on that occasion, was knowingly proposed, deliberately done. The action of the Board may have been strangely irregular, but can' we now avoid that action and destroy its effect?

At that session what did they resolve ? “ That the degree of bachelar of Laws be granted to and conferred upon Morris Marks and other • students of the University, and that the President of said University be directed to grant said degree, etc.

Had the Board the power to so resolve ? The second paragraph of section 1359 of the Revised Statutes provides “ that the degree of Bachelor of laws and doctor of medicine, granted by them, shall authorize the person on whom it is conferred, to practice law, physic and surgery in this State.”

Section -1360 ordains “ that all diplomas granted by them shall be signed by the President of the University, the chairman of the Board and the professors of the department in which the student may have graduated.”

The last paragraph of Section 1359 refers, in terms which can bear but one meaning, but one construction, to the degree of Bachelor of Laws and doctor of medicine conferred by the Board of Administrators — : Section 1360, to diplomas granted by them, and which — when granted — must be signed as stated.

The first of said sections conveys the not unreasonable impression that any degree may be conferred on any one, by the Board of Administrators ; the very next section seems to, restrict their right of granting diplomas to only the students who have graduated in the University.

How reconcile these provisions, unless by holding that — under that as absurd as imperfect legislation, when tho Board assumes'the important prerogative of conferring a degree, the recipient needs but a certificate of that fact to exercise the chosen profession, and that — when the student has pursued a regular or a special course, when he has been examined and graduates, the diploma granted by the Board shall be signed by the President of the University and others.

The examination of candidates for their degrees in the law and medical departments is under the exclusive control of the faculty of each of those departments — that is eminently proper ; but those faculties are not — as they should be — authorized, by our Statues, to grant degrees or diplomas. According to the letter of the law, their only mission is to either recommend or refuse to recommend the candidates, and to whom ? To the administrators, under whose control and supervision, the University, and all its departments, have been placed by law, to the administrators who alone — it seems — have the power to confer degrees and grant diplomas.

As to the rejection or admission of candidates, is the decision of the faculty a final, an irrevocable decision. Were it dictated by hatred, impatience or injustice — and, in this instance — we are far, very far from presuming that it was, is there no higher authority to which the student could appeal for redress ? Were the rejection as causeless as unjust, were it so regarded by the administrators without exception, by every teacner but one, would they be — either collectively or separately — powerless to defeat an admitted wrong, powerless to enforce a manifest right, powerless to protect, against an acknowledged persecution, the proscribed applicant ? Assuredly not.

In May 1872, the Board rescinded the resolution of the twenty-fourth of April, and rejected in a lump those whom the Board itself had admitted by the wholesale. They were twice wrong, apparently at least — for, if they properly admitted, they improperly rejected. Be this as it may ; without specifying the causes which prompted their action, without designating those of the already admitted candidates against whom those causes existed, the Board could not justly divest and destroy — as to all— a conferred degree and a vested right.

Whatever may have been the motives by which the Board was actuated, we are not at liberty to select between its first and authorized action, and its subsequent and too vague and indefinite contradiction. It had the power to admit, it did admit. It conferred on Morris Marks the degree of Bachelor of Laws, and — under their own grant, he was authorized to practice law in the State, Can we, after more than five years, reverse the first decision of that Board, and maintain its own unexplained reversal of that first decision. I believe not.

To sustain defendant’s disputed title, there are four uncontradicted facts, one uncontradicted presumption : the degree of Bachelor of Laws was conferred upon him : he paid as such a license to the State : he has practiced law for more than two years previous to his election : he was elected to the office he claims — these are the facts. Though he could not remember by whom he was sworn, he testified that he took the oath prescribed by law — this is the presumption.

Against him, what is there ? He did not obtain, or failed to procuro the diploma which constitutes the evidence of a pre-existing right, the last and perhaps the not indispensable link of the chain of an attorney’s title, when that title is granted by the administrators of the State University. What more is there against him ? A doubt: the repeal of tho April resolution may have been commanded by grave considerations, but those considerations have been neither published, nor proven — and he is entitled to the benefit of that doubt.

I respectfully dissent from the views and decree of the majority of the Court.

Dissenting Opinion.

Spencer, J.

It is with regret, and with much reluctance and distrust of my own judgment, that I venture, in so grave a matter as this, to differ with the majority of my brethren, and to dissent from their conclusion — but I am constrained to do so by convictions not hastily formed.

I do not hesitate to say that, in my opinion, no one but an attorney at law can “ practice ” within the meaning of that article of the constitution which fixes the qualifications of district judges ; and that, therefore, none but attorneys at law can be district judges.

Nor do I hesitate to say, that the fact of one having been district attorney does not make him an attorney at law, and does not give him, therefore, the qualifications for the district bench. One does not become an attorney at law by or through being district attorney. That is not one of the modes prescribed of becoming an attorney at law.

If, therefore, the defendant was an attorney at law, and if he practiced as such for two years preceding his election, as judge of the district court, there remains no other basis for his pretensions than the action of the Board of Administrators of the University of Louisiana, conferring on him the degree of Bachelor of Laws. The first inquiry which naturally presents itself is, did that Board have the power to confer said degree ?

Section 1359, Revised Statutes, page 269, says : “ They (the Administrators) shall have the right of conferring under their common seal, on any person whom they shall think worthy thereof, all literary honors and degrees known and usually granted by any university or college in the United States or elsewhere. The degree of Bachelor of Laws and Doctor of Medicine granted by them shall authorize the person on whom it is conferred to practice law, physic, and surgery in this State.”

If there is not imposed elsewhere some qualification or restriction of the power here conferred, I do not see how it is possible to doubt its plenary and absolute character. The first clause of the section gives the Board power to confer “ on any person whom they shall think worthy thereof all literary honors and degrees known and usually granted by any university or college in the United States or elsewhere.” The second clause of the section declares that “ the degree of Bacheler of Laws * * granted, by them, shall authorise the person on whom it is conferred to practice law * * * in this State.” Now it is matter of no moment whether the degree of “ Bachelor of Laws ” is a “ literary degree ” or not; for the power to confer both “ literary degrees,” and the “degree of Bachelor of Laws” is expressly and unmistakably given. So whether the latter is a subdivision of the former, or independent of it, makes no sort of difference.

Is this power to confer “literary degrees and honors” and the degree of “Bachelor of Laws” restricted or modified by other sections of the law? We are told that the power to confer “ literary degrees ” is not, but that the power to confer the degree of “ Bachelor of Laws ” is qualified and limited by section 1360, which provides how diplomas shall be signed. But is not a diploma as essential to the conferring of a “ literary degree ” as to that of the “ degree of Bachelor of Laws?” and if this section, providing that diplomas shall be signed by certain officers, operates a restriction upon the power to confer the one degree, why not upon the power to confer all other degrees ? I do not regard this section as operating any restriction upon the power of the Board in either case. A diploma is simply, evidence of the grant. If the law gives the Board authority to grant these degrees, and then directs that as evidence of the grant, certain officers of the university shall'sign a diploma, these officers could not legally withhold their signatures. Their act in signing would be purely ministerial, and they could no more refuse to perform it than the clerk of this court could refuse to attest and verify an order or decree of this court.

I do not intend to assert that the members of the faculty are in fact obliged to sign a diploma for a decree conferred by the Board under the circumstances of this case. I rather think that their duty to do so is confined to the cases where they have examined and recommended candidates to the Board. I think it'is too clear for argument that section 1368 in no wise qualifies the power of the Board in the matter under discussion. It simply gives the faculty the exclusive control of “ the requisites for admission ” (to the university of course), “ the examination of candidates for their degrees ” (referring of course to those who claim degrees as students), “ the management of the pecuniary concerns, the salaries of the professors, and the tuition and terms of admission.”

I conclude, therefore, that the Board of Administrators had the unqualified and absolute power of conferring “ all literary degrees,” as well as that of “Bachelor of Laws;” and that whether “Bachelor of Laws” is a “ literary degree ” or not — a point upon which I do not deem it necessary to express any opinion. It being therefore clear, in my opinion, that the Board had the power to confer on the defendant the degree of Bachelor of Laws, the next inquiry is, did it do so ?

On the twenty-fourth of April, 1872, it passed the following resolution:

Be it resolved, that the degrees of Bachelor of Laws be granted to and cooteered Upon the following members of the class of 1871-1872 of the Law Department of the University of the State of Louisiana, namely: Morris Marks and others. And that the president of the university be directed to confer upon them the said degree of Bachelor of Laws, and that the usual diplomas be granted and issued to' them.

A true copy.

[Extract from the minutes.]

Signed: H. R. Schmidt,

Secretary Administrators.

This language is certainly not ambiguous. It confers “ the degree of Bachelor of Laws upon Morris Marks, -without “ proviso ” or “ qualification.” It does not request but directs that the president of the university confer that degree upon him and that a diploma “ be granted and issued ” to him.

The board by that resolution exhausted its power. It conferred the degree. It performed the legislative or judicial function. The neglect or refusal of the president to formally confer, announce, or deliver the evidence of the grant could not have the effect of destroying the grant— the decree itself. I do not undertake to say that it was the duty of the president to comply with this order of the Board — for I think it might be plausibly argued that his duty in that regard was confined to graduates of the university. But I do say, that, if the Board had the power to confer the degree, and if it was the president’s duty to deliver the evidence of it, his performance or non-performance of that duty could in no way affect the validity of the action of the Board. The diploma is but the evidence in convenient form.' of the fact that a degree has been conferred. It is but the evidence of a right, and not the right itself. It neither increases nor diminishes the extent or enjoyment of the right, which exists independently of it.

Whether the law conferring this power on the Board is wise or unwise, and whether the Board, in the exercise of its power in this particular instance, acted judiciously, are questions with which this court has nothing to do. This power, this discretion, had to be lodged somewhere ; and like all other human authority it is liable to abuse. The law makes the Board the judge of the loorthiness of those on whom it confers degrees. In my opinion its decision does not admit of review by any other authority upon that point. I say this, not because there has been any attempt in this case to show that the defendant was unworthy, but simply to meet that branch of_the argument which is predicated upon the supposed impropriety of allowing men (who may not themselves be learned in the law) to admit persons to that profession.

If the Board had the power to confer, and did confer, on the defendant the degree of Bachelor of Laws, it is manifest that it could not by an ex parte and subsequent revocation deprive him of the grant or of any rights or franchises flowing from it. See ex parte Garland, 4 Wallace, page 347. This view renders unnecessary any discussion of the motion of the plaintiffs for new trial.

Having, as I think, shown that the defendant lawfully held the degree of Bachelor of Laws, the next inquiry is, what rights and privileges did it confer upon him ? The law (sec. 1359 R. S.) answers the question. It “shall authorize the person on whom it is conferred to practice law in this State.”

What, if any, conditions precedent are imposed upon this authority to practice law ? In my humble opinion there is but one, and that is that he take the oath prescribed. Did he take the oath is the next question ? It must be borne in mind that that oath can, admittedly, be taken before any judge, justice of the peace, or clerk of court in the State— they being “ authorized to administer oaths in all cases.” The defendant swears that to the best of his recollection he did take the oath. True, a copy of the oath is not produced, but the defendant’s statements were admitted without objection, and are uncontradicted. We think this ought to be accepted, at least as prima facie proof — especially when coupled with the legal presumption resulting from, a continuous and, so far as appears, undisputed possession of the status and practice of an attorney at law for four years preceding his election as judge.

But it is argued that there was a further condition imposed by law before he could practice; That it was necessary for him to obtain a license from the Supreme Court. Sections 111 and 112 of the Revised Statutes are cited as authority for this proposition. Those sections are in substance as follows:

Section 111. — Any citizen of the United States possessing the qualifications (except that of residence) necessary to constitute a legal voter, shall be admitted to practice as an attorney at law, etc., upon obtaining a license from the Supreme Court.

Section 112. — The Supreme Court shall grant licenses to applicants ■ possessing the qualifications required by the preceding section; first, to all graduates of the University who shall produce evidence of good character; second, when they produce a license to practice law from any other State of the Union — or a diploma from any law school, etc., with evidence of good character, and shall have been examined in open court touching their fitness, etc., and are found qualified; third, when the applicants have been found qualified to practice law, etc., by an examination before the Supreme Court according to such rules and regulations as it may adopt from time to time.

I quote, also, section 113 — “Any foreign lawyer, on presenting his license to anyone of the justices of the Supreme Court, or to any two district judges with evidence of character, etc., who, after being duly examined, etc., shall be by said judges licensed to practice law in any and all courts of this State,” etc.

Now do sections 111 and 112, fairly interpreted, convey the idea that no one can practice law without a license from the Supreme Court?

Section 111 simply declares that “any citizen” upon obtaining a license from this court “ shall be admitted to practice as an attorney at law,” etc. In other words, a license from this court shall be a sufficient authority to the holder to practice. But is that saying that no one shall practice except he have the license of this court ? Surely not, for that would put section 111 in direct conflict with section 113, which says in substance that any foreign attorney shall be entitled to practice upon obtaining a license from two district judges or any justice of this court. And I submit such a construction of section 111 would also put it in conflict with section 1359, which declares that the holder of the degree of Bachelor of Laws, conferred by the Board of Administrators, shall have thereby authority (license) to practice law in this State. There is no more reason for requiring that the holder of such degree should obtain a license from this court than there is for requiring it from the foreign attorney admitted by two district or one supreme judge. I do not understand that any one pretends that it is necessary in this last case. Yet if you give section 111 the interpretation contended for by making a license from this court an indispensable prerequisite to the right of practice, it covers all cases, ¿ind there are scores of lawyers in this State to-day who are practicing illegally under the belief that two district judges could examine and license them.

But it is also ur-ged that under section 112 the defendant must have obtained a license from this court. I do not so understand that section.. It declares that this court shall license, first, graduates of the University on proof of good character; second, those who produce a license from other States, or a diploma from other schools with evidence of good character; and, third, those who have been examined by this court and found qualified under such rules as it may adopt.

Now the defendant does not fall within or claim to practice under either of the three classes named. He does not claim to be a graduate of the university, or of any foreign law school, or to hold a license from any other State, or to have been examined toy this court:

To my mind the conclusion is Irresistible, that under certain given-conditions and circumstances there are three modes provided by law for admission to the bar, and to the right to practicing law in this State;-

First — By a license from this court. Sections 111 and 112, R. S.

Second — By a degree of Bachelor of Laws conferred by the Board of Administrators of the University. Section 1359.

Third — By examination and license of two district or one supreme judge, when the applicant is a foreign attorney. Section 113.

There is no law for saying that any one of these powers is subordinate to the others. They are, in their respective cases, sovereign and independent.

I think the defendant possessed the qualifications required by the constitution for district judge, and therefore that the judgment of the court a qua should be affirmed.

I therefore dissent from the decree in this case.


source: Caselaw Access Project

author: DeBlanc, J.

license: Public Domain

text:
    No. 6691.
    State vs. Daniel Shay.
    An accused person, who with lull knowledge of tho fact that the jury by whom he is to be tried was drawn from a list of persons, composed partly of those who had been excused from serving, goes to trial without making any objection to the composition of the jury, thereby waives his right of objection, and can not thereafter, on that ground, ask that tho verdict of the jury shall be disturbed.
    The auestion whether one-of the jurors in a criminal ease was, or was not disaualiiied to act ns a juror, on the score of being too prejudiced to render an impartial verdict, is a auestion of fact for the lower court to determine, and of which this Court has no jurisdiction.
    The place whore an alleged murder was committed is set forth with sufficient certainty, when the indictment gives tho name of jiarish in which tho killing is charged to have been done, and states that it took place within the jurisdiction of the Court before whom the accused is tried.
    In an indictment for murder it is not necessary to set forth the specific manner, and means of tho killing. It is only necessary to charge that the accused did willfully, feloniously, and with malice aforethought kill, and murder the deceased.
    It is too late to urge any objection to an indictment on account of any defect of form apparent on its face, after the jury has been sworn.
    APPEAL from the Superior Criminal Court, parish of Orleans. Whitaker, J.

      H. N. Ogden, Attorney General, for the State.

      J. P. Smith and J. H. Hagins for defendant.
   The opinion of the court was delivered by

DeBlanc, J.

Daniel Shay was indicted for the murder of John Mc-Donough. He was tried and the jury returned against him the qualified verdict of “ guilty without capital punishment. He applied for a new trial, but his application was refused. To obtain it, he relied in the lower court, and ho relies here, on the grounds that—

First — No correct list of the jurors was served on Mm, as the only one which was served contained the names of twenty-seven jurors who— before his trial-had been excused, and he was apprised of that fact after nine of those by whom he was tried had been selected and empanelled.

■ If — as he states — he was taken by surprise, he ought to have then moved for a discontinuance of the trial, and insisted on his right to a correct list of the jurors who were in attendance. This he did not ask— and, by Ms consent to a continuation of the trial, after the discovery that many of the jurors, whose names appeared on the list served, had been excused, he waived, tacitly at least, a privilege created for the exclusive benefit of the accused.

23 A. 620 ; 14 A. 667 ; 12 A. 679 ; 6 A. 690 ; 2 A. 732.

The trial of a prisoner should be conducted — not only with a strict and unwavering impartiality — but, in the course of the trial, in composingtho jury, in taking the evidence, in the discussion of the facts elicited and of the law applicable' to the facts, those who represent the State should be liberal and fair, and take no improper advantage. In Court, as in the jury room, every rational doubt should go to the credit of the accused; but, the generosity of the State has its limits and should not be converted into a protection to crime and criminals. One who — of his own accord — takes the chances of an acquittal by a jury, cannot — after conviction — object to that jury — otherwise, the first trial of every violator of the law would merely be to ascertain whether he should be acquitted, or— if convicted — how many causes were held in reserve to secure trial after trial.

7 A. 284 ; 8 A. 515 ; 27 A. 537.

In this, as in every one of our States, the law surrounds the prisoner with the most complete, the most protective guarantees. When brought to the bar of the court, he is not called upon to disprove the ■commission of the offence charged against him ; the law presumes his innocence, and — until that presumption be torn into shreds, until his guilt be established beyond any reasonable doubt — be he a robber or an assassin — he cannot be convicted, he cannot bepunished. The prisoner is invested with high, constitutional and extraordinary privileges— but, for the exercise of those privileges — the State had to and did fix an hour, and — in one of the eases referred to by defendant’s counsel, the court held : “ If one have good ground for continuing a cause, but go ■into trial, and fail to make the motion, this will not present a legal claim for a new trial.” •

Hardin’s Reports, pi 515.

Second — Charles Reineck, one of the jurors by whom the accused was tried, had — before the commencement of the trial — openly expressed his belief that appellant was guilty as charged, and that if he were to try him, he could not help finding him guilty — and that, when examined on his voir clire — the said Reineck answered that he had neither formed nor ■expressed an opinion as to his guilt or innocence.

If Reineck did express such an opinion, and afterwards falsely denied that he had, he certainly was an incompetent juror — for, when locked by a prejudice, the door of the mind is as closed as that of the tomb ; it may be re-opened, but seldom and by a miracle. Whatever is a good ground of challenge to a juror, is a good ground for a new trial, if tho fact which would have authorized the challenge was not known until after the verdict, or until it was too late for the accused to avail himself of the knowledge of that fact.

It is, however, the peculiar province of the lower court to determine whether a juror is or was open to conviction or not. In this case, and as to Charles Reineck, that question was raised, tried and decided. It does not appear that the district judge held that-^even if proved, the disqualification urged did not constitute a legal ground for a new trial, and it does appear that he fixed a day to hear, and — on that day, heard the parties on that point.

Whether; on that trial, two, or ten witnesses were examined — whether, without additional evidence, the judge believed the juror’s declaration and disbelieved the charge proffered against him — whether that charge was verified or contradicted, the record does not show. Tlxeprisoner’s application is based on a question of facts : his application was passed upon and refused — the reasons for that refusal are no where mentioned, and — under our constitution, the law and jurisprudence, we are without authority to revise or inverse the decision of the lower court-on this point.

C. art. 74, 26 A. 383 ; 4 A. 438 — 441; 2 A. 921 ; 6 A. 593.

Third — “The indictment — it is objected — does not, with certainty and distinctness, set forth the place where the crime is said to have been committed, or the instrument used, or the manner, or cause of the death.”

In the margin of the indictment, the venue is stated as follows r State of Louisiana, First Judicial District, Parish of Orleans.'

In the body — “ the parish of Orleans aforesaid, within the jurisdiction ■ of the Superior Criminal Court for said parish.” This is all that the-law requires.

Rev. Statutes, Section 1062.

As the first, the second branch of this objection is untenable. In an indictment for murder, it is not necessary to set forth 'the maxxner in which and the means by which the death was caused. It is’sufficient to charge — and it was done in this case, that the defendant did feloniously, wilfully and of his malice aforethought, kill and murder the deceased.

Revised Statutes, Sect. 1048.

Fourth — There is nothing in the record showing how many or what grand jurors found the indictment. The names of said jurors are not mentioned.

On the first pages of the transcript, we find the statement “ that the Grand Jurors of the State of Louisiana, duly empanelled, sworn and charged to enquire in and for the body of the parish of Orleans, this day came into Court, attended by their proper officer — and there being then and there present at least twelve of their number, and upon their oath and through their foreman, presented to the Court the following true bill of indictment, which is prop.erly endorsed by said foreman, and entered and signed by the Clerk of the Court, .etc. That statement is followed by the indictment, which — in substance and in form, is perfect.

The names of the grand jurors are not in the indictment, nor in the written statement that at least twelve of them appeared in open Court and presented the indictment and true bill, but no such formality is required by law. Were it otherwise, it was too late after conviction, to urge any informality of that description. “Every objection to any indictment for any formal defect apparent on its face, must be taken by demurrer or motion to quash, before the jury be sworn and not after-wards.”

Rev. Statutes, Sect. 1064, 22 A. 162 ; 27 A. 693.

The judgment appealed from is affirmed.


author: Marr, J.

text:
    No. 5427.
    Louisa Fredericks, Tutrix, vs. Robert Fasnacht.
    When it clearly appears from the evidence that the intent of parties was to form a written contract, neither party will be bound until the contract has been reduced to writing, and signed by both, No alleged verbal agreement, in such case, can be invoked by either party against the other.

      APPEAL from the Fifth District A J. Court, parish of Orleans. Cullom, J.

      J. H. Grover for plaintiff and appellee.

      A. & W. Voorhies for defendant.
   The opinion of the court was delivered by

Marr, J.

This suit was brought by Louisa Fredericks, tutrix, and George Waters, her husband, co-tutor, to recover damages for injuries to real property, alleged to have been leased to Bobert Fasnacht, the defendant.

Defendant denies that he leased the property, or received, or used, or occupied or injured it.

The proof is that one Peterson, agent for Mrs. Waters before her marriage to Waters, negotiated with defendant for the lease of the property. Peterson says : “ I always thought, and was pretty sure the lease was consummated by him for his father. He never occupied it; it was the father always occupied it.” In another place, referring to the fact that defendant had paid three months rent, he says : “ He did not say he was paying for his father ; but he made me understand when he took the lease it was for his father, when the verbal lease was agreed upon. We had a lease drawn up which was never signed ; but it was understood it was for his father.” Again, when asked directly, if defendant “ did not tell him, at the time, that he was leasing for his father,” he answers: “ That is what he made me understand.” Pressed by the repetition of the question, he says : “I can not say he told me distinctly it was for his father ; but he left the impression on’my mind that it was for his father.”

Defendant testifies that in April, 1871, his father requested him to-lease the property for him, for a term beginning first of May ; that his-father told him. he wanted to occupy it with his family, and would give-fifty dollars a month for it. That all he did about the matter was for account, and at the request of his father; that he had advanced the money and made payments on account of the rent, which he always charged to his father’s account at the time ; and that he never had any idea of becoming .responsible- for the rent.

The proof is that Samuel Fasnacht, the father, took possession about the first of May, and occupied the premises. That when Peterson and his principal, at different times, demanded the rent of defendant, heal ways referred them to his father; and that defendant did not live on the premises.

Peterson testifies that it was a part of the bargain, at the time he-talked with defendant about leasing the property, that the lease should be put in writing ; and that Peterson drew up a lease which defendant did not sign. When asked if defendant did not refuse to sign, he says: “ He did not do it.” When asked, “ Did he not say he would not,” he answers : “ He delayed from time to time, and it was never signed. He said the old man would sign the lease; that was the way.”

Defendant, when asked, “ Did Peterson ask you to sign the lease ?” answers : “ Yes, I told him wait until the old man came, that I acted for him.”

Mrs. Waters lived in the immediate neighborhood, and occasionally visited Mrs. Fasnacht. She saw Samuel Fasnacht committing depredations on the property ; and complained to Robert Fasnacht, who said he-could not do any thing with his father. Peterson says he informed Mrs. Waters of his negotiations with Robert Fasnacht. It seems that Robert was sued for the rent; that when the papers were served he handed them to his father, telling him that was the father’s business, not his and that Samuel Fasnacht settled the suit with Mrs. Waters, without the presence or interference of Robert Fasnacht.

It also appears that after the marriage with Waters, not earlier than August, possibly as late as October, 1871, a lease, made out in the name of Robert Fasnacht as lessee, was signed by Mrs. Waters and Samuel Fasnacht professing to act for his son. This lease was ante-dated first of May, corresponding with the beginning of the term. There is no-proof that Samuel Fasnacht had any authority to sign or make any such contract for his son ; and Robert Fasnacht testifies that he never gave his father any such authority ; that he knew nothing of this lease until long after it was signed ; and that he had never seen it until it was produced in court on the trial of this case.

Apart from the conduct and declarations of Robert Fasnacht, which are consistent throughout this entire transaction, it is manifest that there was no contract of lease assented to by him, as lessee of this property. It is elementary in our law, that where the negotiations contemplate and provide that there shall be a contract in writing, neither party is bound until the writing is perfected and signed. The distinction is manifest between those eases in which there is a complete verbal contract, which the law does not require to be reduced to writing, and a subsequent agreement that.it shall be reduced to writing, and those in which, as in this case, it is a part of the bargain that the contract shall bo reduced to writing. In the first class of cases the original verbal contract is in no manner impaired by the failure to carry out the subsequent agreement to put it in writing. In the second class of cases, the final consent is suspended ; the contract is incohate, incomplete, and it can not be enforced until it is signed by all the parties. Villéré vs. Brognier, 3 Martin, 349; Des Boulets vs. Gravier, 1 N. S. 421, 422; Blocker vs. Tillman, 4 La. 80.

This case illustrates the wisdom of the rule. If Peterson understood from the negotiations with Robert Fasnacht, that Robert Fasnacht was contracting for himself, and not as the representative of his father, it is plain that Robert Fasnacht had no such understanding ; and when Peterson asked Robert Fasnacht to sign the lease, which he says the bargain required, and Robert told him to wait until his father came, that he was acting for his father, fair warning was given that Robert did not intend to take upon himself the obligations of lessee of the property which he had negotiated for as the representative of his father, Peterson might and should have brought the business to a conclusion by refusing to deliver the property until the bargain was completed by a lease in writing, which would have left no room for dispute as to who was the real lessee. There was ample time for this; because, as the proof shows, the negotiations between Peterson and Robert Fasnacht were in April, about a month before the beginning of the term.

The proof shows that Samuel Fasnacht did abuse the property ; and he might well have been held liable for damages. There is no pretense that Robert Fasnacht did any of the wrongs complained of ; and as ho was not bound by any contract as lessee, and did not live upon or occupy the property, the court below erred in holding him liable, and in condemning him in damages.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed ; and that there be judgment in favor of Robert Fasnacht, defendant and appellant, against Mrs. Louisa Rodericks, tutrix, wife of George Waters, and Georgo Waters co-tutor, plaintiffs and appellees, rejecting their demand, with costs in both courts.


author: Manning, C. J. Marr, J. Egan, J. Spencer, J. DeBlanc, J. Manning, C. J. Egan, J.

text:
    No. 6419.
    Bridget Reardon vs. Daniel Moriarty et al.
    One wlio has executed a promissory note in error, lor a debt not due by her, may legally resist the payment of the note, so long as the note is not in the hands of an innocent third person, who has taken it for value before its maturity.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      J. Q. A. Fellowes and J. N. Hagins for plaintiff and appellant.

      McGloin and Nixon for defendants.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiff has injoined the seizure and sale of a house and lot in this City under a mortgage, and to pay four notes secured thereby. The sale under which she bought was provoked by the.representative of her first husband’s succession to pay debts. That representative was his daughter and sole heir. The settlement of the debts appears to have been made in an irregular manner. The widow and purchaser was required to furnish the money necessary for that purpose, and the sum she thus furnished exceeded the third, which the terms of sale required to be paid cash.

Bridget Reardon is an ignorant woman, and was assisted and advised in these transactions by her kinsman, Daniel Moriarty. Her husband was dead, and his succession belonged to her, as surviving widow in community, and to his only child, a daughter by a previous marriage, in equal shares. There were some debts to be paid. The property consisted of a lot and improvements in this city, appraised in inventory at $5000, furniture valued at $149, and $60 cash. A sale was had to pay debts, and to effect a partition. The lot and improvements brought $7,750.00. One third of this price was, by the terms of sale, to be paid cash — the residue in one and two years. The widow bought, and the cash was paid, and this cash payment was sufficient, or nearly sufficient, to pay the debts. At any rate the heir was not called on to pay any debt, or to contribute to such payment. She received one half of the credit instalments without diminution. Two notes, representing that moiety, were delivered to the daughter.

The plaintiff should not have executed any other notes than these two. She owned as much of the proceeds of sale as the daughter. There was no obligation upon her to give notes for what was her own, but she did give them, as she would no doubt have signed any other notes that Moriarty told her to sign. He took possession of them immediately — afterwards bought the two others from the daughter— and now attempts to sell the property under the mortgage securing the payment of all four notes. The plaintiff enjoins, and seeks legal protection from the rapacious pursuit of him, who. was instrumental in imposing upon her ignorance, and obtaining her signature to obligations for money that belonged to lier. Were the notes in the hands of innocent third persons, she would be remediless, but Moriarty has them, and brings them into court, and we can wrest them from him.

There is no doubt that Moriarty paid a part of the money for the plaintiff. He gave his check for the whole, but she had put him in funds certainly to the amount of a thousand dollars, besides making sundry payments of small sums then or thereafter. He has his action against her for the money thus loaned to her, or paid for her benefit, and to that action he should be remitted for its recovery. Under no aspect of the matter can he be justified in taking possession of the two notes, which represent the plaintiff’s half of the proceeds of sale, and treating them as his own. She did not pledge them to him, nor were they deposited with him as collaterals, nor do they represent the sum loaned to her. It was perfectly competent for him to have taken her note for the sum actually loaned, and to have had it secured by mortgage, and that was the natural, proper, and straightforward form in which the transaction should have been clothed.

Besides, it is apparent that the plaintiff has given the two notes that went into the possession of the heir, for a larger sum than was ■coming- to that heir. The account can be thus stated:

Assets; — proceeds of sale of lot.............................$7,750.00

Movables and Cash............................... 209.50

$7,959. 50

Claims; — On tableau.............................$2,802.60

Yatter & Blanc......................... 128.98

Funeral expenses...............!....... 178 3,104.58

$4,854.92

Share of each..............................$2,427.40

The notes executed by the purchaser, who was the widow in community, and which were delivered to the heir, were for $2583.33 and thus exceeded by $155.87 the sum to which she was entitled. Besides, the widow was made to pay commissions on the value of the whole property, instead of the succession’s half of it, and this excess of payment is $96.87. These two sums must be credited on the notes Moriarty acquired from the heir, and we justify this distinctly upon the ground that Moriarty was the person who instigated the settlement in the manner in which it was made, and conducted it for her.

It is therefore ordered, adjudged, and decreed that the injunction is perpetuated as to the two notes executed by the plaintiff for her-own half of the proceeds of sale, and that the other two notes be credited’ with $252.71 of same date as the notes, reserving to the defendant his-right of action against the plaintiff for the money loaned to her, or paid for her and not repaid to him, and that the defendant pay all the costs-of both Courts.

Concurring Opinion.

Marr, J.

I concur in the opinion and decree pronounced by the Chief Justice, as far as it goes ; but I do not think it goes far enough.

The proof is plain that the plaintiff was a married woman at the time she executed, the notes in question ; and I think the notes are void for want of the authorization of her husband.

This does not involve the nullity of the adjudication to her of the property which belonged to the community of which she was a member. She acquired a perfect title by the adjudication; and she is bound to-pay according to the terms of the sale. Between the date of the adjudication and the giving of the note she married; and she was not legally capable of binding herself by note or mortgage, although she was bound by the adjudication.

The record shows that she was cited to answer, and that a judgment by default was entered and confirmed against her. In the petition brought in the name of herself and her husband it is stated that they ■were both cited ; but this fact is not shown otherwise ; and as the-record does show the citation addressed to and served upon her alone, the presumption is that if there had been a citation addressed to and served upon the husband that fact would have been shown by the exhibition of the citation.

I consider the petition as the work of the attorney who drew it. No allegation of service had been made by Móriarty, and his rights were-not changed by that statement. I do not think, under the decisions in Patterson’s case, 5 An., Fasnacht’s case, and Baines vs. Burbridge, 15 An., that this unnecessary statement, which, so far as the record shows, is not true, is to be taken as a judicial admission ; which, in my opinion, means what is alleged by the one party, and admitted to be true by the other, or what is alleged by one as a basis of the right which he asserts,, and which estops him.

I think the judgment by default was a nullity; and the entire judgment should be perpetually enjoined.

1. Because of the nullity of the notes and mortgage for want of the proper authorization, and the consequent want of capacity of the wife to contract.

2. Because of the nullity of the default taken against the wife without proof of the authorization of her husband, or service of citation or him.

The right should, be reserved to Moriarty to sue for and receive whatever may be due him for money lent and advanced, and to Mrs. Twohy, or to Moriarty, if he-is her transferee, to recover her net half of the community, as heir of her deceased father, according to the terms of the adjudication.

Concurring Opinion.

Egan, J.

I concur in the decree in this case, and the more readily because the evidence fully establishes the fact that the defendant was a married woman at the time the notes were executed and judgment obtained against her upon void notes obtained from her through fraud and in fraud of the law, and Moriarty himself admits, in his evidence in the record, that he had another note of the plaintiff given him for something over $1500, about the amount which the evidence renders it probable that he advanced or loaned to her. The law classes the incapacity of the wife with that of other incapables. The fraud attempted to be perpetrated in this case can not receive the sanction of this court The record of the suit vs. Wm. Sullivan does not disclose the fact that her husband was cited, or that she was otherwise authorized by law to defend it. The pretense that she concealed from the defendant the fact of her marriage is not sustained by the evidence; three witnesses swear that she told him she was married at the time the notes were given, and he himself admits he had heard it.

Dissenting Opinion.

Spencer, J.

I can not concur in the opinion and conclusions of the majority of the court in this case. To my mind there is an insuperable obstacle in the way, to wit: the thing adjudged.

Michael Sullivan, plaintiff’s first husband, died, leaving a single heir, Mrs. Twohy, child of a former marriage. Plaintiff was widow in community, and Mrs. Twohy administratrix of his estate.

The community property was sold and adjudicated to plaintiff, the widow, on twelfth April, 1S73, for $7750, one third cash, the balance in one and two annual payments, with mortgage reserved. On seventeenth June, 1873, plaintiff, not to say clandestinely, at least secretly, contracted a second marriage with another Sullivan, to wit: Eugene.

On eighteenth July, 1873, a month after second marriage, she says Moriarty, her cousin, persuaded her, without her husband, to go to the notary’s office to fix up the title to the house she had so bought. She says Moriarty knew she was married. Moriarty denies it. It matters not. The act of sale in pursuance of the adjudication was drawn up toy the notary and signed by the administratrix and plaintiff. Plaintiff executed notes for the deferred payments at one and two years — two at one and two at two years. Moriarty gave his own check for the cash part of the price, $2583, which was applied to paying the community debts. Plaintiff swears she furnished $1000 of this money paid by Moriarty — so that he in reality only furnished her $1583. There is no doubt, that as partner in community she herself owned two of the four notes so executed by her. Moriarty, however, took them, he says, as security for the money advanced by him. She says she does not know how he came by them, but that she supposed they were in the hands of the administratrix. Por the sake of the argument, I concede that he took unlawful possession of the two notes belonging to her. He afterward bought the two. belonging' to Mrs. Twohy, so that he held all four of plaintiff’s notes.

On the twentieth of April, 1875, Moriarty brought suit against plaintiff and her husband, Eugene Sullivan, on these four notes and the mortgage and vendor’s lien securing them, as evidenced by the notarial act, and prayed for citation of both husband and wife.

On the eighth of May, 1875, final judgment was rendered (confirming a default of the fourth of May) in favor of Moriarty vs. Mrs. Sulli-van, the plaintiff in this suit, for the full amount of the four notes, with recognition of mortgage, etc. The notice of this judgment was irregularly served ; at least the return shows it to have been served upon one Michael Sullivan (the name of her first husband) instead of Eugene Sullivan, her second husband. Let us admit, too, that this was not a mere clerical error of the sheriff.

On the thirty-first of May, 1875, a writ of fieri facias issued on this judgment of Moriarty vs. Mrs. Sullivan, and the sheriff seized the mortgaged property, in her possession, and held and owned by her under the title stated above.

Mrs. Sullivan (Bridget Reardon) and her husband, Eugene Sullivan, thereupon sued out this injunction against Moriarty and the sheriff — -in which she alleges, in substance, as follows :

That Mpriarty had brought the suit above referred to against your petitioner, Bridget Reardon, and made your petitioner, Eugene Sullivan a party thereto, simply to assist his said wife therein.” “ That after citation of your two petitioners the said Moriarty obtained judgment by default against ijour petitioner, Bridget, and had the same confirmed on the eighth of May, ” etc. She alleges that said four notes and act of sale and mortgage were executed on the eighteenth of July, 1873, at which time she was a married woman, the wife of Eugene Sullivan, and that she executed said notes and acts without his assistance or authority, and “ was persuaded thereto by said Daniel Moriarty, who well knew at the time that she was a married woman ; ” “ that in some manner unknown to ■her said Moriarty came into possession of said notes, although by said notarial act it appears the possession thereof was-given to Mrs. Twohy,: administratrix of the estate of Michael Sullivan. ” That the said four notes and act of sale and mortgage are mere nullities, and not binding on her for the reason that they were executed by her while she was a married woman and without the consent or assistance of her husband. ” That said transactions “ were nothing but a mere fraud practiced upon your petitioner and known to have been so by said Moriarty at the time, and were null and void. That said Moriarty has “ obtained said judgment on obligations null and void, and that said judgment is equally null and void and should be quashed, set aside, and rescinded, especially for want of capacity of your petitioner to obligate herself in this manner. ” That said Moriarty has issued fi. fa. on such judgment, “and seised the property of your petitioner.” She prays for an injunction to restrain the sheriff and Moriarty, and for judgment rescinding and annulling the said judgment in Moriarty vs. Bridget Reardon. The injunction was granted as prayed for. Nothing is said about her having received no notice of judgment.

By a supplemental petition she alleges that two of the notes for which Moriarty'had so obtained judgment against her were, in fact, her own property and did not belong to Moriarty. These are the whole of her allegations, and upon these this injunction was granted. The sole grounds, therefore, that she sets up for the injunction, and for the nullity of the judgment obtained against her by Moriarty are, first, that she was a married woman and without capacity when she signed the deed, mortgage, and notes, and did so without the authority of her husband. She does not pretend, however, that the adjudication upon which this deed, etc., was based was not made to her during her widoiohood.

She does not pretend or allege that the property bought was not in her possession- — on the contrary — that it was. She does not pretend or allege that the debt for which judgment had been obtained against her was the debt of her husband, Eugene Sullivan, or otherwise contracted in violation of prohibitory laws.

Her second and only other ground of injunction and nullity is that two of the notes embraced in said judgment did not belong to Moriarty but to herself.

Moriarty, in answer to the injunction, plead, first, by way of exception, that her petition disclosed no cause of action. In my opinion this exception should have prevailed, if it had been tried preliminarily. But it was tried, with the merits and evidence offered without objection, which, I think, destroyed it. His answer sets up various defenses, but I shall notice but one, that of res adjudicata. He says that the judgment obtained by Moriarty against Mrs. Sullivan on these notes, being unappealod from, is res adjudicata as to the matters and things now urged by her. She seeks to enjoin and annul his judgment on the ground that she was a married woman, unauthorized, when she signed the notes and mortgage, and that two of the notes sued upon were, in fact, her own property. Now, to my mind, it is too plain for argument that these are matters which could only be set up and urged as defenses to the suit of Moriarty vs. Sullivan. It is elementary that whatever can or ought to be urged by way of defense can not be used to annul or enjoin. If the judgment was rendered on insufficient evidence her only relief was by appeal. She did not do so. But, as matter of fact, the evidence upon its face was not insufficient. It proved that the debt was contracted by her before marriage and for her own benefit, and that she was then in the enjoyment of the property for which the notes were given. So that, had she appeared and defended the suit, no court could have refused to give judgment against her on the ground of want of authority or want of consideration. If she had appeared, and plead and proved that two of the notes were her own property (as I think they were), then, to that extent, she could have defeated the suit. But is not the want of ownership, in plaintiff, of the notes sued upon, a matter that must be pleaded in defense? Can a defendant, after judgment against him, enjoin and annul it on the ground that plaintiff did not own the notes sued upon? Yet, that is what is sought here. I can not assent to such a proposition. I conclude, therefore, that upon the matters and things alleged by the plaintiff against the judgment enjoined, that there is the thing adjudged. I am aware that our courts have gone to great lengths to protect married women. But I have examined with care all the reported cases, and I do not find a single ease where our courts have held the effect of the thing adjudged to be different, as regards married women, from what it is as regards others. The only exception ever admitted in favor of married women has been in cases where they attacked by injunction judgments against them, on their allegation and oath that the debt sued upon was that of the husband or community, and, therefore, contracted in violation of a prohibitory law, and against public policy, and under marital influence. But In the case before us there is not even an insinuation that the debt sued ■upon was that of the husband. On the contrary, it was beyond dispute contracted during her widowhood and for her own benefit. Here the controversy should stop, as here is the end and extent of the grounds ¿alleged by plaintiff; for her injunction and action of nullity. But plaintiff’s counsel urges and argues, hi his brief, that in the suit of Moriarty -vs. Mrs. Sullivan and husband, the husband was not cited, and did not •authorize his wife; and asks us to annul the judgment on that ground. He insists that this is proved by the fact that in the record of that case, ■as copied into this transcript, no citation appears addressed to the husband, but only one addressed to and served upon the wife. I repeat that there is no allusion in the pleadings of plaintiff to such a defect ■On the contrary, in their petition for injunction, now before us, the plaintiffs distinctly allege the very contrary. Their allegations are in these words, that Moriarty had brought said suit against your petitioner, Bridget B,eardon, and made your petitioner, Eugene Sullivan, a party thereto simply to assist his said wife therein.” “ That after citation of your two petitioners the said Moriarty obtained judgment, etc. against your petitioner” etc. Upon the mere suggestion of absence of a citation to the husband in the copy of a record which was itself a mere instrument of evidence in this case, and without any allegation that such defect would be urged ; on the contrary, with an express ■allegation that no such defect existed, can we proceed to annul the judgment in Moriarty vs. Sullivan? I say to annul it — for if we declare that that judgment is invalid for two of the notes upon which it 'is predicated, to that extent we annul it. Surely we can not. Had the plaintiff put Moriarty on his guard by alleging that the husband was not cited, or had she even not misled him by alleging that he was cited, there might have been plausibility .in saying it was incumbent on Moriarty to prove as against this married woman the facts essential ■to the validity of the judgment. But in view of her own allegations, •and by every rule and principle of law and practice, it seems to me that she is estopped and precluded. Her demand for nullity should, ■•therefore, be rejected.

There was proof offered, without objection, that Mrs. Sullivan had paid or furnished $1000 of the payment of $2583 made by Moriarty for her account. I think this credit should be allowed, and to that extent the injunction should be perpetuated, and for the balance dissolved. Defendant should pay costs of both courts.

DeBlanc, J.

I concur in the foregoing opinion.

On Rehearing.

Manning, C. J.

The Justices severally adhere to the opinions read on the former hearing, both' concurring and dissenting, and therefore,

It is ordered and adjudged that our former decree remain undisturbed.

Egan, J.

I consented to the partial dissolution of the injunction. because I considered the plaintiff bound to carry out the terms of the original adjudication, and the decree of the court; with all the facta before us, avoids circuity of action.


author: Manning, C. J.

text:
    No. 6750.
    Succession of Charles P. Boutté.
    The legal hoirs ol a succession, on giving the security prescribed bylaw, (if so required,) are entitled to bo put into possession of the property of the succession when the legatees consent, and the creditors of the succession do not oppose.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      T. A. Bartlett, S. R. Snaer, and E. K. Washington for heirs and appellants.

      W O. Denegre for executor.
   The opinion of the court was delivered by

Manning, C. J.

The heirs of Charles P. Boutté, who are his children and grand children, pray to be put in possession of his estate, and the Public Administrator, who has been appointed dative testamentary executor of the last will of the deceased, opposes their demand.

Boutte’s will was probated in 1871, and his testamentary executor qualified under it. Although the debts are small, and the property inconsiderable, the administration of the succession has been prolonged until now, when the heirs apply for permission to terminate it, and the legatees file their consent thereto: The creditors, if there are any now, do not oppose it.

The Public Administrator alleges that there are suits pending against the succession, and that the funds in his hands can not be taken away until the legacies are paid. It is a sufficient answer to this to say, that-the legatees join the heirs in their prayer to be put in possession of the estate, and thé creditors do not object. The surviving widow also joins in the prayer for the termination of the administration. The petitioners must comply with the requirements of the law before being put in possession, and the Public Administrator must account for his administration. Therefore

It is ordered and decreed that the judgment of the lower court is reversed, and that the petitioners be put in possession of the succession of the deceased upon giving security if required, and that the Public Administrator account for his gestión, the succession to pay costs.


text:
    No. 6370.
    State ex rel. Carondelet Canal and Navigating Company vs. Mayor and Administrators of New Orleans.
    It is tlie duty of the Mayor and Administrators of the city of New Orleans to set apart, and provide specifically, in the forthcoming yearly budget, out of tho funds to arise from the general tax therein levied,, means for paying all judgments against the city then registered in the office of the Administrator of Public Accounts, and unsatisfied, in the order of their registry. And this duty, the Mayor and Administrators may be compelled, by mandamus, to perform.
    It is not their duty to levy a separate tax to pay such judgments; nor is it made obligatory on them to pay such judgments out of the fund in their hands set apart for contingent expenses; although they may, in their discretion, discharge the judgments out of that fund.
    If the means arising from the general tax levied in one annual budget are not sufficient to pay all of the registered judgments, provision must be made in each subsequent budget, until all of such judgments are successively extinguished.
    'The fact that the term of office of the existing Mayor and Administrators of a city is nearly expired, is no ground for defeating, or delaying the legal proceedings of a eroditor of tho city who has a good cause of action.
    APPEAL from the Superior District Court, parish of Orleans. Lynch, J.

      H. T>. Ogden for plaintiff and appellee.

      S. P. Plane, Assistant City Attorney, for defendants.
   The opinion of the court was delivered by

Marr, J.

Relator recovered judgment against the city of New 'Orleans, which was registered on the fourth of February, 1875, in the office of the Administrator of Public Accounts, as required by acts of 1870, No. 5, section two, and No. 7, sections four and nine.

These acts make it the duty of the auditing officer, the Administrator of Public Accounts, when a judgment is so registered, to warrant on the disbursing officer, the Administrator of Finance, for the amount without any special appropriation, provided there be money in the treasury, designated and set apart for the payment of judgments, sufficient to pay such judgment. If the amount designated in the annual budget, for the payment of judgments, be exhausted at the date when such judgment shall have become' final and executory, the Mayor and Administrators may, if they deem, it proper, appropriate, from the money set apart in the budget for contingent expenses, a sum sufficient to pay said judgment; but if no such appropriation be made, then all judgments shall be paid, in the order in which they shall be filed and registered, from the first money next annually set apart for that purpose. Sections two and three, act No. 5, of 1870, Extra Session, page 11.

The Mayor and Administrators failed to provide for the payment of the judgment in the annual budget next in date after its registry; and the relator brought this suit in May, 1876, to compel, by mandamus, the performance of this duty.

The Mayor and Administrators answered, substantially:

First — That judgments amounting to $96,740 32 had been registered before that of relator, and must be paid before his.

Second — That it is not the duty of respondents to levy a tax to pay relator’s judgment, other than the annual levy made for all purposes at the commencement of the year.

Third — That the contingent fund has been appropriated on the budget for specific purposes, and can not be diverted.

Fourth — That there are no funds in the treasury, or under the control of the respondents, set apart for relator’s judgment.

Fifth — -That there are immense judgments to be paid before relator’s; and he is not entitled to any of the means sought for by him to be preferred to them.

Sixth — That the budget can not be changed or disturbed; that relator has no right to anticipate the action of the city in the next budget; that at the time the next budget will be adopted new incumbents will occupy the seats of respondents; and that respondents can not bo ordered to perform that which they will not have an opportunity of doing.

The judgment of the court below decreed that “the writ of mandamus be made peremptory, so far as to compel Charles J. Leeds, J. G. Brown, J. O. Landry, E. A. Burke, Leon Bertoli, Leonce Bouny, Dennis McCarthy, and Edward Pilsbury, the mayor and administrators of the city of New Orleans, to place the judgment rendered in favor of the relator on the 26th of June, 1871, and all judgments registered previous to its registry, on the next annual budget, and to provide for the payment of all said judgments, in the order in which they are registered, through and by means of all taxes imposed, collected, or held for city current expenses, not levied or collected in pursuance of law for some other specific purpose.”

The mayor and administrators appealed; and soon after the return day they were succeeded by the present incumbents, who have been properly made parties in this court. The appellee states in his brief that the remedies refused by the district judge would have afforded immediate relief; but owing to the lapse of time since it was rendered, the judgment, as it now stands, gives all the relief which can be obtained by decree of this court. Our inquiry, therefore, will be limited to the judgment as rendered, without reference to the remedies asked for and refused.

The Act No. 5 of 1870 forbids the enforcement of judgments against the city of New Orleans by execution. It makes it the duty of the department of Public Accounts to register all judgments that have become final and executory when presented ; and this was done with respect to relator’s judgment. By section 124, of the act approved March 20, 1856, it was the duty of- the city government to provide, in the annual budget, for all the matured debts and obligations of the city; and the adoption of the budget was to be considered the appropriation-of the amount for the purposes therein stated. This section of the Acfr of 1856 is specially referred to and recognized as being still in force, in the second section of the Act No. 5 of 1870. It was, therefore, the plain duty of the mayor and administrators to have provided, in the-next annual budget after February 4, 1875, for the payment of tins' judgment, registered at that date, and all the other then unpaid registered judgments. This plain duty they had failed to perform, although more than fifteen months had elapsed after the registry of relator’s-judgment before the suit was brought.

The city "is not required to levy a special tax to pay registered judgments other than the levy made annually for all purposes ; and a resort to the contingent fund, is discretionary, not compulsory. It is the duty of the city in making up the annual budget to designate and set apart an amount sufficient to pay all the registered judgments, and to pay them in their order out of the money so set apart.

This duty of the city does not depend on the amount of the judgments rendered, but on the fact of the registry. A sufficient amount must be provided, set apart; and if a sufficient sum should not be realized out of such appropriation in the annual budget next succeeding the registry to pay all the registered judgments, such as are not paid must figure, of course, in the next annual budget; 'and so on until they are all paid according to their respective priorities.

The changes which may take place in the administration of the city government, by the election of new .officers, at the expiration of the current term, operate no change' in the duties and obligations of the city, nor in the rights of its creditors. - If a state of facts existed, at the time relator commenced this proceeding, which authorized him to invoke the aid of a judicial tribunal to enforce his rights, the judgment rendered contradictorily with those who were then-the Mayor and Administrators, would be equally obligatory on the new ■incumbents succeeding them.

These general observations suffice to dispose of all the objections set up by the Mayor and Administrators in their answer; and the judgment of the District Court orders them to do no more than the act of 1870, ■sections two and three, prescribes, and makes it their official duty to do.

We have just had occasion, in the suit of Strauss vs. the Administrator of Public Accounts, to consider the first section of this act of 1870; and have decided that it forbids proceeding by mandamus against the auditing and disbursing officers, respectively, to compel the issue or payment of any order or warrant, for any money claimed to be due from the city. The creditors of the city are remitted to the ordinary forms, and are required to bring their suits against the city as a corporation, that is, against the Maj'or and Administrators, and not against any branch, or department, or officer of the municipal government.

There is no analogy between that case and this. Relator obtained his judgment against the city in the ordinary form of judicial proceedings ; and it was properly registered according to the requirements of the act. But the duty still'remained of providing for the payment in the only mode by which judgment creditors of the city are permitted to collect their judgments. This required the action of the Mayor and Administrators, in their aggregate capacity, as a municipal government; the adoption of the annual budget; the levy of the necessary taxes ; and the setting apart of a sufficient amount to pay this and all the other registered judgments.

Perfect as the right of relator is to have provision thus made for the payment of his judgment, there is no means or process by which it can be enforced otherwise than by mandamus. The duty of the city to make this provision is not discretionary, either as to the time or the manner. The law imperatively requires that it shall be in the next annual budget, and by setting apart, appropriating, a sufficient amount out of the annual revenues. The duty of the Mayoi' and Administrators is plain, and the right of the relator is absolute.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be so amended as to substitute for the persons named therein as Mayor and Administrators the persons who succeeded them, the present incumbents, viz.: Edward Pilsbury, Mayor; James G. Brown, Administrator of Public Accounts; Jules C. Denis, Administrator of Finance; John McCaffrey, Administrator of Improvements; Charles Cavanac, Administrator of Commerce; James D. Edwards, Administrator of Water Works; Robert E. Diamond, Administrator óf Police; and John E. Rengstorff, Administrator of Assessments; and that said judgment be, in all other respects, affirmed with costs.