author: Breáux, J..

text:
    No. 14,024.
    State of Louisiana ex rel. Mutual Building and Homestead Association vs. The Judges of the Court of Appeal for the Parish of Orleans.
    Syllabus.
    The property mortgaged had been sold and the writ oí seizure and sale executed. There remained no issues between the mortgagor and the mortgagee.
    The rule taken after the sale had been executed by the attorney for the absent mortgage debtor to fix the fee of attorney is not appealable, unless the amount came within the lower limit of the court’s jurisdiction. The minimum limit Is one hundred dollars. The amount involved had given rise to issues entirely independent of the main action. The only matter In dispute was th«. amount of the judgment of fifty dollars.
    Relator’s demand Is not allowed.
    APPLICATION for a writ of Mandamus.

      Carroll & Carroll, for Eelator.

      Joseph Oscar Daspit, for Eespondents.
   The opinion of the court was delivered by

Breáux, J..

Eelator seeks to compel the Court of Appeal to exercise jurisdiction and review a judgment rendered by the District Court fixing the fee of the attorney appointed by the court to represent the absent-defendant.- • ■ " ’

The facts are:

Suit 'was instituted in the- District Court to foreclose a mortgage claim 'for twenty-four hundred dollars. The mórtgágeé in that' suit is. the'relator herb.' He bought the property at sheriff’s salb. Thereafter,' at the' instance of the attórney for the absent defendant; a rule was issued upon 'the MiituaT Building and Homestead Association (relator here) to show cause why a fee should not be taxed in his. favor as costa. The'District Court'heárd ihbparties’upori. the trial of'this rule, and rendered 'judgment ’for the attorney in the sum of fifty dollars, and taxed, the ainouñt as costs'of foe suit. ' Erom this judgment, the Mutual Build; ing and Homestead Association appealed to the Court of Appeal. .The Court of Appeal, after hearing, dismissed the appeal for want of jurisdiction rations mate'rláe.

Relator’s contention is that the Court of Appeal is vested with jurisdiction of the appeal, and that that court should have determined the case upon the merits. To sustain its position, and to have the appeal reinstated, it is incumbent upon the relator, we think, to make it appear evident that the matter of taxation of the fee in question is an incident of the main suit, an action for an amount which cannot be divided from the principal action.

The decisions, as we read them, do not sustain relator’s contention, at any rate not after the order of seizure and sale, as in the case before us, has been executed. In one of the decisions of this court a curator ad hoc appointed to represent the third possessor of the mortgaged property obtained a rule to show cause why a sum, under the lower limit of the Supreme Court’s jurisdiction, should not be allowed as a fee for h;s services. The court, on appeal, held that the fixing of this amount is not an incident to the main demand, and is not by that reason, within its jurisdiction. “Though arising out of the original action, the demand in the rule is entirely distinct from it, and being less than $300 is not appealable.” State vs. Judge, 4 Rob. 85. In the decision just cited, all the points at issue here were specifically considered. The court held that one against whom judgment had been rendered cannot appeal if he has acquiesced in the judgment by executing it voluntarily; and that there was no object in controversy upon which the court’s interference could be exercised; that one cannot complain of a judgment in which he has acquiesced and from the execution of which he has derived all the benefit to the full extent of his demand, and that the original controversy was put at an end by the foreclosure.

The court, in the decision in question, also considered the rule invoked by the relator, that costs must follow the judgment; and that these costs should be considered as part of the original judgment subject .to appeal. This court in the cited decision, supra, agrees with that proposition before what it terms the execution of the judgment, but not afterwards, when the question of costs of a curator ad hoc comes up, in effect, as an independent issue after execution.

Our learned brothers of the Court of Appeal also cite the decision of Johnson vs. Popovich, Louque’s Digest, p. 14, No. 11, and Fitle vs. Duncan, 39 Ann. 86, and Succession of Dougart, 42 Ann. 516. We think that they are determinative of the point here involved. See, further, relative to acquiescence in part in the judgment rendered, and its effect on the appeal, Succession of Trouilly, 52 Ann. 276.

The relator further contends: If the Civil District Court had jurisdiction to tax costs, the Court of Appeal had jurisdiction over the appeal, and in support of this position cites from the Constitution as follows: “When the matter in dispute, or the fund to be distributed, shall exceed one hundred dollars, the Court of Appeal has jurisdiction; and the District Court has original jurisdiction where the amount in dispute or the fund to be distributed exceeds one hundred dollars.” Taking this for a basis, relator’s contention is that where the Civil District Court has jurisdiction, an appeal will necessarily lie to the Supreme Court or to the Court of Appeal, since, says the relator, the lowest limit of the jurisdiction of the Court of Appeal is established in language identical with that which fixes the lower limit of the jurisdiction of the Civil District Court. The language, although identical, does not give appellate jurisdiction in the face of the article fixing the lower limit at one hundred dollars.

We are not to infér that it was the purpose and intent to secure a right of appeal without words expressly conferring that right. The Constitution negatives this right by expressly fixing the lower limit at the amount before stated. True, the District Court has jurisdiction because that court ex necessitate rei could see to the execution of its own judgments and the proper distribution of a fund in the sheriff’s hands.

But if, as the issues develop themselves in that court, they, in the end, involve an amount less than the lower limit of the jurisdiction of the Court of Appeal, the judgment regarding this amount would not be appealable.

For reasons assigned, the rule nisi is recalled and annulled, and relator’s demand is denied and dismissed.


source: Caselaw Access Project

author: Breaux, J., Provosty, J.

license: Public Domain

text:
    No. 13,706.
    Hermann Levy vs. Mrs. Ella Levy Rich, et al.
    Syllabus.
    Ox Motion to Dismiss.
    I. Agreements between counsel waiving certain matters of form and permuting unauthenticated copies of documents to be offered in evidence in lieu of authenticated copies, will be liberally construed by the court.

      2" If original documents be used in'making up the transcript, without the direc- ’ tion or conseni'of the'appellant, the mistake is not imputable to him.
    3, ,.In.-view- of ths certificate..of the clerk and agreement of counsel, the court found no good ground to justify a dismissal of the appeal.
    .On the Merits.
    During the existence of a> commercial partnership, service on one of the members ,, lsjgood. against alL; but after the dissolution of such partnership every member intended, to be sued, must be served with a separate citation.
    APPEAL from the Civil District Court, Parish of Orleans — St Paul, J.

      Benjamin Bice Forman, for Plaintiff, Appellant.

      William S. Benedict, for Defendants, Appellees.
   The opinion of the Court was delivered by

Breaux, J.,

on motion to dismiss.

On the merits by

Provosty, J.

On Motion to Dismiss.

. Breaux, J. The grounds of the motion filed by the appellee to dismiss, the appeal are that a number of papers, from page ten to page sixty-six, inclusive, purporting to be a copy of the record plied, upon as .the basis of the action are, or appear to be, original papers filed in the Civil District Court; that these papers are not certified to by any one as being correct.

This case was consolidated with another' case having the same title but a different number, viz. 42004 and 42204. The clerk of court, in his certificate, sets forth' that these cases were consolidated by agreement and tried together, but that a separate judgment was rendered in.'each case. In consequence of these sepárate judgments, two appeals were taken. On appeal, case No. 42204, is case No. 13706, and case No. 42004, - is case No. 13697.

While these consolidated cases were being tried in the District Court, counsel for the respective parties to. the suit entered into an agreement as folíows, to-wit: “By Mr. Moise: I now offer in evidence the record in .-the case .of-Saulsbacher and Plumber, Receivers, vs. A. & S. Levy-Herman Levy subrogated, being the entire record to date. It is agreed that a copy be submitted to oposite counsel, as a substitute, in lieu of an authentic act.”

Appellee, in support of the motion to dismiss the appeal, sets forth that the pages in question of the transcript are typewritten, with a cover (which is the backing of the papers) on which is endorsed a statement saying that they were filed in evidence in the lower court on the 21st of June, 1899; that these papers purport to be a copy of a record (without any certificate) of the United States Circuit Court. Counsel for appellee urges that, while the whole of this record is referred to by appellants as having been filed in the lower court, there was no agreement entered into under which original papers could be transmitted from the record of the lower court to the Sup] erne Court.

The certificate of the clerk, in due form, sets forth that the seventy pages of the transcript contain a true and complete transcript of all the proceedings had, documents filed and evidence adduced upou the trial of the present case in No. 42204, except the note of evidence and testimony already certified and sent to the Supreme Court on appeal of the same title, case No. 42004 of the docket, by agreement, consolidated and tried together, but separate judgment was rendered in each case.

We think it is manifest that an agreement was entered into between counsel regarding papers which were offered and admitted in evidence. The agreement may have been reduced to writing or dictated hastily; none the less, it shows that the papers were admitted in evidence without objection. Under the agreement, we think that it must have been understood that, though the papers were not authenticated with a certificate as to their correctness, the court should admit them. The clerk, in his certificate to the transcript, certifies that they are correct copies.

Appellees urge that, at most, they are original papers and that his counsel did not consent to inserting original papers in the transcript of appeal. There is no evidence that they are original papers except a blank sheet which does not appear to be connected with the papers, on which the deputy clerk wrote “filed” and signed his name.

But if the clerk has inserted original papers of his office instead of copies, the mistake which should not have been committed is his and not the appellant’s. It does not appear that the appellant directed the clerk to use the original papers in making up the transcript. The error is, therefore, not imputable to him. The evidence was admitted by consent. The clerk certified that it is a complete transcript. We do not find ground to dismiss the appeal. No error is urged which can possibly be prejudicial to the appellee.

The motion to dismiss is, therefore, overruled.

On the Merits.

Provosty, J.

The plaintiff, claiming to be subrogee of a judgment rendered on the 9th of November, 1895, by the United States Circuit Court for the Fifth Circuit and Eastern District of Louisiana, in a suit entitled Sulzbacher & Plummer, Receivers, vs. A. & L. Levy et als., brings the present suit against Ella Levy, wife of Isadore Rich, and Teenie Levy, wife of Leopold Cline, alleging them to be the children and sole heirs of Leon Levy, now deceased, one of the debtors in solido under said judgment; and to be liable under said judgment, they having accepted purely and unconditionally the succession of their said father. The defendants deny that their said father was cited in the said suit; and they plead the prescription of the debt on which said judgment is founded.

Plaintiff’s counsel say in his brief — “The ease turns on the single question, was the commercial firm of A. & L. Levy, composed of Alexander and Leon Levy, in existence in November 1885 when the judgment was rendered on its notes ?” We think said firm had gone out of existence several years before the date mentioned. The firm was sold out under attachment in 1881. In that same year Leon Levy carried on a saloon business. In 1882 he sold out his saloon business and removed to Nicaragua where he opened a saloon in the name of L. Levy, Agent. Two years thereafter he returned to this city, and entered the employment of Isadore Rich as a clerk. He died in 1889 leaving no estate. Alexander Levy in September 1881 entered the employment of Col. W. G. Vincent, and continued in the same employment until his death in 1889. These facts show conclusively the dissolution of the firm in 1881. In the petition in which said judgment was rendered we find that the firm of A. & L. Levy is referred to as “the late firm”; that citation issued to “A. & L. Levy, late a commercial firm”; that the marshal returned that he had made service of the citation on “A. & L. Levy, late a commercial firm * * * by handing same to Alexander Levy one of the members of said late firm;” that on the citation issued to Leon Levy the marshal returned, “being credibly informed that the within named Leon Levy has removed permanently from the Eastern District of Louisiana this paper is returned.”

Evidently at the time that said suit was instituted the impression prevailed that the said firm was a late firm.

Plaintiff was asked the question—

“Q. Did the firm of A. & L. Levy continue to do business after the seizure of Bruenn?”

And he answered—

“Yes.”

On this, and on the fact that no notice of the dissolution of the firm of A. & L. Levy was published, plaintiff’s counsel relies to show the continued existence of said firm. Plaintiff’s counsel also relies on the endorsements appearing on two notes made in 1880 and 1881, one by A. & L. Levy to their own order, and the other by L. Blumm to the order of A. & L. Levy, and payable in sixty days and ninety days, respectively. The handwriting on the notes was not proved, and the notes were on that account denied admission in evidence, and are not before us except as a part of a bill of exceptions. They were properly refused admittance; however, here are these endorsements; on one note the following: “A. &L. Levy,” “M. Berwin”; on the other note, that of L. Blumm, the following:

“1956 A. & L. Levy
“L. Blumm, July 4, 1884, paid on account..............$ 3 27
August 4, 1884, paid on account .............. 25 00
“490.13 September 4, 1884, paid on account .............. 25 00
October 4, 1884, paid on account.............. 25 00
“14 February, October 9, paid on account the last four notes of $25.00 maturing November 4 and December 4, 1888, and July 4 and February. 4, 1889 .................. 100 00
$178 27

We do not think that these endorsements prove anything; and plainly the testimony of the plaintiff referred to above is insufficient to show that the said firm continued in existence up to 1885. So far as the failure to publish a notice of the dissolution of said firm is concerned, we do not know that such publication of notice is necessary in order to secure to members of a defunct firm their right, after dissolution of the firm, to be cited personally. We understand the publication of such a notice to be useful only for the purpose of protecting the retiring members oS¡ a firm from liability for debts contracted subsequent to their retirement; or for the puipose of revoking the authority of the defunct firm to bind members.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, and that the plaintiff pay the costs of both courts.


author: Breaux, J.

text:
    No. 13,800.
    August Bosio vs. W. C. Picton.
    Syllabus.
    The relator and the respondent having entered Into a compromise after the former’s application for a writ of review had been filed and having no longer any interest In the litigation, the court is constrained to decline passing in an authoritative manner upon the question involved before the agreement of compromise.
    A certiorari will issue to set aside or affirm a judgment only In case it involves an issue between the parties.
    IN RE August Bosio applying for certiorari, or writ of review, to the Court of Appeals, Parish of Orleans, State of Louisiana.

      Nicholas Eugene Humphrey, George Montgomery and Gorvrad G. Collins, for Applicant.

      Paul Louis Eourchy, for Picton, Defendant.
   The opinion of the court was delivered by

Breaux, J.

The question is exclusively one of law, and as propounded reads:

Is the salary of a clerk in the employ of a railroad company exempt from seizure ?

After having examined the points involved, we found among the papers a statement addressed to this court setting forth that plaintiff and defendant, since their application for this writ was filed, have amicably adjusted their differences and have no actual interest in the issues presented, but they left open the question as to the correctness of the interpretation of the case of Moll vs. Sbisa, 51 Ann. 290, as made by the Court of Appeal.

The case was submitted for such action as deemed proper by the court. If the statement in question had been filed before the Court of Appeal, while the case was pending before that court, immediately after the filing, it would have had no. jurisdiction, as there would have been no moneyed demand involved. The statement having been filed before this court, the result is the same. If we were to entertain jurisdiction, it would not be a jurisdiction over any substantial right. We would not reverse or affirm any judgment covering an interest.

Adjustments, agreements of accommodation, and compromises, when fairly made, always recommend themselves to the court. In this instance, had no agreement been arrived at, it would have been best, as we would then have expressly and authoratively passed upon a question which, in the interest of all, we think should be settled, and possible error in interpretation be-set at right.

With the light before us, we are inclined to decide that the last legislative utterance is complete on the point involved and that recompense for personal services (such as that rendered in this suit) is not exempt; that Act 80 of 1876 amending the O. P. controls and repeals Article — of the Civil Code relating to “personal services;” upon this subject Moll vs. Sbisa, 51 Ann. 290, in so far as it may he thought that it holds a contrary view, if it does, is obiter, and that salary for services as clerk and other personal services are not exempt. But we are constrained to leave the question open for final decision until it is brought up between parties with substantial adverse interests.

For these reasons, the rule nisi issued in this case is recalled and annulled. It is now ordered that the petition for certiorari and review be dismissed.


author: Blanchard, J.

text:
    No. 13,434.
    George B. Penrose, Treasurer of the City of New Orleans, vs. D. A. Chaffraix.
    Syllabus.
    1. Where there is no clause in its charter exempting from taxation, it may be the power resides in the Legislature to levy a tax on both the capital of a corporation and the shares of stock representing that capital.
    2. But where there is an exempting clause, the question becomes one of legislative intent as to the scope and extent of the exemption, rather than one of legislative power.
    3. When the Legislature In 1836 exempted the capital of the Citizens’ Bank of Louisiana from taxation, it meant to include in the exemption that which represented the capital — the shares in the hands of those who had subscribed to the capital stock.
    4. The effect of the decision of the Supreme Court of the United States in New Orleans vs. Citizens’ Bank, 167 U. S. 371, is to maintain and carry the exemption into the extended period of the bank’s charter.
    ^ PPEAL from the Civil District Court, Parish of Orleans — Amy, J.

      Charles H. LaVillebeuvre, Assistant City Attorney, Samuel L. Gilmore, City Attorney, for Plaintiff, Appellant.

      Francis C. Zacharie, for State Tax Collector.

      Henry Denis, Branch K. Miller, and Charles J. Theard, for Defendant, Appellee.
   The opinion of the court was delivered by

Blanchard, J.

This is a proceeding taken by the City of New Orleans, through its Treasurer, to recover of defendant the payment of a tax for the year 1899 imposed upon a certain number of shares of the capital stock of the Citizens’ Bank of Louisiana held by him.

The answer of the defendant raises the issue of the exemption vel non from taxation of the shares of the capital stock of the bank in the hands of its share holders.

The judgment of the court a qua maintained the exemption, and plaintiff appeals.

The demand for this taxation is predicated upon the following clause of Section 27 of Act No. 170 of the Acts of Louisiana of 1898, known as the Revenue Act, to-wit:

In the event that any National bank, State bank, banking firm or banking company, is by decision of the courts held not liable to pay the taxes on the shares of its shareholders, then the taxes shall be collected from and paid by each shareholder on the share or shares by him held, and each shareholder failing to pay the same may be proceeded against by a rule to produce, and by all the other proceedings provided for in this act for the collection of taxes on movable property.”

The record of this case and the records of this court disclose that various attempts were made in the past, notably in the years 1878, 1882, 1881, 1886 and 1887, by the tax-assessing and collecting officials of the State of Louisiana and City of New Orleans to enforce against the Citizens’ Bank a tax on the shares of stock it had issued to its shareholders.

This was done under the authority of former revenue acts, applying to the years for which the assessments were made, by the terms of which, while the shares of stock of banks were- assessed against the owners thereof, the tax thereon was to be collected from the banks themselves, with the right to the latter to reimburse as against the shareholders.

In each case where the attempt was thus made to tax the shares of the capital stock of the Citizens’ Bank, the latter resisted, litigation followed and the courts decreed the cancellation of the assessments made on the stock, holding the same exempt from taxation, as against the Bank, under the terms of its original charter and the Acts of the Legislature amendatory thereof.

The present suit is the first attempt to hold the shareholders, themselves, directly amenable to taxation assessed against the shares of stock owned by them.

In all the years the Bank has been in existence — from 1833 to the present time — its shares of capital stock hav.e not been taxed. Either the statutes imposing taxation have omitted the levy of taxes on bank shares, or, when levied, the tax officials have, when they came to the Citizens’ Bank, considered the shares of its capital stock as exempt from taxation under the Bank’s charter, or when they did not consider them exempt and attempted to hold the same amenable to taxation, the courts have set aside the assessmeent as violative of the contract obligations between the Bank and the State growing out of the Bank’s charter and the legislative enactments relating thereto.

The attempt to hold the Bank stock subject to taxation, when proceeded against in the aggregate as above stated, by seeking to enforce payment of taxes thereon against the Bank itself, having failed, the same end is sought to be reached in the Revenue Act of 1898 by authorizing proceedings against the stock in detail in the hands of its holders.

The court having decided that because of the exemptive clause of its charter the Bank cannot be held liable to pay the taxes on the shares of its stock holders, the attempt is now made to tax the shares in the hands of the holders thereof and to force the latter to pay the same.

If the Bank is to be called on to pay the tax, it is no longer an open question that the shares of its capital stock may not be taxed.

Whether they may be taxed in the hands of the shareholders is the issue here tendered.

The difference between this and the previously adjudged cases is that in the latter the Bank was treated as the immediate tax debtor, while in the instant case the shareholder is so treated.

In both the property assessed is the same, being shares of stock of the Citizens’ Bank.

There is a line of decisions in certain other juridictions, including the Supreme Court of the United States, which hold that the exemption of the capital of a corporation from taxation does not of necessity include the exemption of the shareholders on their shares of stock.

The doctrine may be sound, though it cannot be said of it that it is of universal acceptance. In many courts it has been challenged. It has not heretofore been necessary in this jurisdiction to pass directly upon the same. Nor is it considered necessary now.

Where there is no clause exempting from taxation it may be the power resides in the legislature to levy a tax on both the capital of a corporation and the shares of stock representing that capital.

But where there is an exempting clause, the question becomes one of legislative intent as to the scope and extent of the exemption, rather than one of legislative power.

Whether the exemption of the capital or the capital stock from taxation includes immunity of the shareholders from the imposition of such burden on the shares of capital stock held by them individually, is to be determined on a consideration of the nature or character of the exemptive clause and the relations established between the taxing power (the State) and the corporation (the Bank) at the time the charter was granted, and maintained since.

What, then, was the nature of the exempting clause in this instance; what the intention of the Legislature in enacting same ?

The true answer to this question is to be gathered from the context of the whole act, to be deduced from its letter and spirit, taking into consideration the time when enacted and the objects to be attained forming the consideration of the exemption.

What was the evident purpose of the sovereign power in thus dealing with its creature, what the relations established in order to effectuate this purpose?

The Citizens’ Bank of Louisiana was incorporated by Act approved April 1, 1833. The 30th Section of that Act, in consideration of certain benefits therein stipulated to the State, declared the corporation exempt from taxation. The language used was: — “* * * the said corporation shall, during its existence, be exempt in its capital and property, * * * from all taxes to the State, or to any parish or .¡corporation created by law of this State.”

Subsequently, the Act approved January 30, 1836, was enacted. It greatly enlarged the scope of the Bank’s purpose and the extent of its power. . .

It pledged the faith of the State as security for a sum as large as twelve millions of dollars, and bonds of the State, predicated upon this pledged faith, to the extent of seven millions of dollars were issued, and by means thereof the capital needed for the enlarged purpose of the bank was.secured.

It was provided that these bonds, both in capital and interest, should be paid by the Bank at the time of their maturity, and to protect thp State from .loss certain guarantees were stipulated for, and. securities granted.

The State was, likewise, given an interest in the profits tq bq ¡resized and it was provided that the .whole, amount thereof , should be appropriated to the benefit of. the frep .schools.,

Twelve directors were to manage the affairs-of-the Bank,-six. to be chosen by the State and six by the stock holders., It was stipulated that the Legislature might appoint committees to inquire- into, the affairs of the bank.,

The rate of discount was ■ even fixed .by the Act.

One of the considerations of the amended charter was that the sum of five hundred thousand .dollars each wa.s to be, paid tq.tbree colleges named in the Act, and these colleges, in consideration thereof, were to receive so many pupils each free of charge for either tuition or board the sum so paid to the colleges to be charged against the amount accruing to the State as its share of the profits.

Books of subscription to complete the capital stock were directed to be opened and subscriptions by citizens invited and made.

And there was an exemption of the Bank from taxation, superseding the previous exemption, in these words:— “And the capital of said bank shall be exempt from any tax laid by the State, or by any parish or body politic under the authority of the State during the continuance of its charter.”

For a more detailed statement of the relations of the Bank with the State, see Bank vs. Bouny, 32 La. Ann. 239, and New Orleans vs. Citizens’ Bank, 167 U. S. 271.

The Acts of 1833 and 1836, and later statutes relative to the Bank, render it clear that the State intended to make of the Bank and did make of it an instrumentality of its own for the effectuation of certain public policies, mainly the encouragement, promotion, and development of its agricultural interests.

To this end it created the Bank, supplied the bulk of its capital and established relations with it of a contractual character.

Because of this it granted the clause quoted above exempting from taxation.

At that time the refined distinction between the capital and the capital stock of a corporation had not been made by the courts, or was at least unrecognized as yet in Louisiana.

When the Legislature exempted the capital of the Bank from taxation it meant to include in the exemption that which represented the capital, which was the tangible evidence of the capital — the shares in the hands of those who had subscribed to the fund which went to make up the capital.

That was the usual meaning, the ordinary significance of the terms employed. It was so taken and understood at the time and long subsequent thereto, as is shown by the fact that down to the present time neither the capital of the Bank nor the shares of its capital stock have ever been amenable to taxation.

Considering the nature of the State’s relation to the Bank and the Bank’s relation to the State, it is impossible to acquiesce in any other conclusion.

What, invite private subscriptions to a fund designed to form in part the capital of a bank which is to become an instrument of the State, formally exempt this capital from taxation and yet latently reserve the right, secretly entertain the intention, of some day taxing the certificates which show that A. B., C. D., and others had supplied money which constituted that capital!

To so hold would be to impugn the justice, fairness and good faith of the Legislature which enacted, and the Executive who approved the Act.

It is a question of intention and we cannot hold that the lawmakers of that early period meant to ensnare the then subscribers to the capital stock by exempting the capital itself, yet reserving the right to succeeding generations to tax the shares representing that capital in the hands of the heirs and assigns of those who subscribed.

All the circumstances indicate that the Legislature, at the time this exemption was deliberated upon and adopted, did not intend to make a difference, for the purpose of taxation, between the capital of the bank, or its capital stock in the hands of the corporation itself, and the shares of the same capital stock in the hands of the individual stockholders.

The subscribers dealt with the Bank upon the public faith of the State as declared in its statutes.

The word “capital” as used in the exempting clause of the Act of 1836 embraced capital stock within its meaning. This court has heretofore distinctly so held. In the case of the Citizens’ Bank vs. Board of Assessors, 48 La. Ann. 37, this language was used:—

“ In the charter the word capital means capital stock, the amount of capital designated by the charter, and not the value of the property of the corporation.” See also New Orleans vs. Canal Bank, 32 La. Ann. 160.

The exemption was granted for a consideration and it formed a contract between the State and the corporation. Citizens’ Bank vs. Bouny, 32 La. Ann. 239. The contract with the Bank-was a contract with the stockholders of the Bank. Gordon vs. Appeal Tax Court, 3 How. 133.

Where a contract appears the intention of both contracting parties is to be sought. Davis vs. Gray, 16 Wall. 232.

It can hardly be doubted that if the original subscribers to the capital stock had been informed the offer of the State to exempt the capital was not intended to exempt the shares in their hands, the consequence would have been that they would not, in many instances, have subscribed to the stock. There would have been no sufficient inducement for them to do so, on that score. Whether the tax came out of their pockets directly, or whether it came out of the Bank, to be deducted from their dividends, or to affect the value of their shares, there was not to them the shadow of a difference.

When the State contracts it places itself on an equality with the other contracting party, and thus becomes liable to the application of the rule contra proferentem.

In the State Ex Rel. Bank vs. Board of Assessors, 48 La. Ann. 35, by the language used on page 36 this court virtually affirmed the nonliabilty of taxation of the shares of stock issued by defendant bank.

It is true the question did not there arise directly, but the statement was evidently deemed necessary in the elucidation of the theory on which that case was decided against the Bank.

The only remaining question is whether the Bank or its shareholders can claim the exemption accorded by the Act of 1836 for the extended period of its charter, and especially so in view of the passage of Act No. 79 of the Acts of 1880 and of the acceptance by the Bank of the terms and conditions of the Act.

The contention of the plaintiff is that when, in 1874, the Legislature granted the extension it could only do so subject to the limitations and prohibitions found in the then Constitution of the State — that of 1868 —and that these precluded the exemption claimed.

Furthenñoíe, it is contended that by the acceptance of the Act of 1880, whatever rights’ of exemption the Bank had under its charter of 1836 were surrendered, and that thereafter the Bank could claim no immunity from taxation not recognized by the Constitution of the State of 1879. ' ' '' : ’’

Both these contentions were passed upon, and negatived in New Orleans vs. Citizens Bank, 167 U. S. 371, and the effect of that decision of the Supreme Court of the United States is to maintain and carry the exemption into the extended period of the Bank’s charter.

Judgment affirmed.

Breaux, J., concurs in the decree, assigning reasons therefor in separate opinion.

The Chief Justice and Mr. Justice Monroe dissent.


author: Nicholls, C. J.

text:
    No. 13,824.
    Globe Realty Company, Ltd., vs. W. R. M. Whitney.
    Syllabus.
    The corporations authorized to he formed by Act No. 36 of 1888 have no existence until they have obtained a capital stock of five thousand dollars. The title of real estate purchased in the name of such a corporation, prior to its having obtained such capital stock, does not vest in the corporation, nor does the property become the property of the corporation by the simple fact of its subsequent acquisition of capital stock to the amount legally required. Title to the property has to be transferred to the corporation before it can convey such a title as a purchaser could be forced to accept.
    APPEAL from fhe Civil District Court, Parish of Orleans— Sommerville, J.

      F. Rivers Richardson, for Plaintiff and Appelle.

      David B. H. Chaffe, for Defendant, Appellant.
   The opinion of the court was delivered by

Nicholls, C. J.

The defendant agreed to purchase a certain piece of property, but declined signing the act of sale, urging that the title tendered was not valid.

The following agreed statement of facts comes up with the record. Tt is admitted that the plaintiff has a title to said property described, which "on its face appears good and valid.

2nd. It is admitted that defendant agreed to purchase said property for two thousand one hundred dollars, part cash and part on terms, and that his offer was duly accepted, and notice of the acceptance given defendant.

3rd. It is further admitted that defendant declined to comply with his agreement of purchase, and that the plaintiff is ready and willing, and has offered to comply with its.part of said agreement on payment of the purchase price, which offer has been declined by the defendant.

4th. It is agreed that a certified copy of the charter of plaintiff shall be, and is offered in evidence, as also certificate from the secretary of State showing that plaintiff has complied with the terms of Act No. 59 of 1898.

5th. It is admitted, subject to the objection of plaintiff, that said evidence is illegal, irrelevant and that defendant has no right or interest to raise such question, hut same can only he raised by the State in some proper proceeding; that only two thousand dollars of the capital stock of plaintiff corporation was subscribed for, when it commenced doing business, and only a subscription for said amount of said capital stock was recorded in the mortgage office, and that matters were in this state when the property herein involved was acquired; that subsequently the entire capital stock of said corporation was subscribed for, and an additional list for said balance of said capital stock was recorded, but this was subsequent to the acquisition of the property involved, yet prior to the execution of the agreement sued upon.

6th. It is further admitted that when the charter of plaintiff was passed, it, at once, commenced business thereunder, elected a board of directors and officers, and since then has been an active user of the rights conferred on it by said charter.

The District Court ordered the judgment in favor of the plaintiff, and defendant appealed.

Opinion.

We are of the opinion that the judgment appealed from is erroneous, and it should be reversed and set aside.

By the first section of Act No. 86 of 1888, authorizing the formation of corporations for certain purposes, limiting the capital of the same, and the liability of the stockholders thereof, the corporations therein provided for are required to have a capital stock of not less than five thousand dollars. There can be no existing corporation until such capital stock shall have been obtained. Action of any kind, prior to the obtaining of such capital stock, is not corporate action. The property which the plaintiff company agreed to sell to the defendant, and which defendant agreed to buy, was purchased before the plaintiff became a legal corporation, and therefore its title did not vest in the corporation. It has not been transferred to it since. The plaintiff has, therefore, no right to sell it.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be, and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that there be judgment in favor of the defendant against the plaintiff, and plaintiff’s demand is rejected, and the suit dismissed — costs in both courts to be borne by the plaintiff.


author: Monroe, J.

text:
    No. 13,882.
    James C. Turnbow vs. T. Rod Wimberly.
    Syllabus.
    1. A general denial and a plea of justification are Inconsistent defenses to *n action for damages for personal abuse and personal injury, and a motion to compel the defendant to elect between them should be sustained.
    2. Where, in such an action, it appears that the defendant, without other provocation than the failure of the plaintiff to return his salutation, applied to the latter a most opprobrious epithet, assaulted him, and bit his ear, practically, off, damages, both actual and exemplary, will be awarded.
    APPEAL from the Eleventh Judicial District, Parish of Eed Eiver — Porter, J.

      Egan & Scheen, for Plaintiff, Appellant.

      Wilkinson, Stephens & Garter, Nettles & Peer, for Defendant, Appellee.
   The opinion of the court was delivered by

Monroe, J.

The plaintiff in this case claims damages for personal abuse and injury. He alleges that the defendant, without provocation, in the presence of a number of other persons, called him a son of a b — eh, assaulted and beat him, and bit and lacerated his ear in such a manner as permanently to disfigure him. The defense set up is a general denial; a,nd an averment that if the defendant inflicted any injury upon the plaintiff, which is denied, he acted purely in defense of his person and honor, and that the plaintiff was altogether to blame therefor; and there is some other matter in the answer which is wholly irrelevant, was so held by the judge a quo, and need not be here considered.

Counsel for plaintiff filed a motion to compel the defendant to elect between the denial and the justification set up, and the motion was overruled. The defenses are inconsistent, and we think the motion should have been sustained. Skillman vs. Downs, 10 La. 103; Miller vs. Roy, 10 Ann. 161.

The evidence shows that the defendant acted as charged in the petition, without other provocation than the failure of the plaintiff to return his salutation; and there is next to nothing to the contrary. Upon what theory the jury brought in a verdict for the defendant we are unable to conceive.

We are of opinion that the plaintiff is entitled to recover $250 as actual, and $250 as exemplary damages. It is therefore ordered, adjudged and decreed that the verdict and judgment appealed from be annulled, avoided and reversed, and that there now be judgment for the plaintiff, and against defendant in the sum of $500, with costs in both courts.

Rehearing refused.


author:
Blanchard, J.
      Per Curiam.

text:
    No. 13,693.
    Abel & Bach Co. vs. L. J. Duffy.
    Syllabus.
    1. To sustain an attachment the fraudulent intent of the debtor must appear, or facts and circumstances must be shown from which it may reasonably be inferred.
    2. It may well happen that an attachment itself is not authorized and yet there be justification on part of plaintiff in resorting to it.
    APPEAL from the Civil District Court, Parish of Orleans— Thewrd, J.

      Dinkelspiel & Hart, for Plaintiff, Appellant.

      Carroll & Carroll, for Defendant, Appellee.
   The opinion of the court was delivered by

Blanchard, J.

On application for rehearing by

per curiam.

Blanchard, J. Plaintiff company is a corporation doing a mercan- . tile business in the City of Milwaukee.

Defendant is a merchant in the City of New Orleans, engaged in the business of selling trunks, valises, traveling bags, etc.

Some of the goods and wares in which he dealt he manufactured himself ; others he purchased in distant cities to sell again here.

Plis store or selling department was in one section of the City of New Orleans; his factory in another section of the city.

He was a customer of plaintiff, corporation; had been buying goods, materials, etc., from them for years.

In August 1900 he owed them an account exceeding three thousand dollars, the great part of which had long since been due.

Efforts to collect proving unavailing, plaintiffs brought suit and took out a writ of attachment, under which the two establishments of defendant — the store and the factory — the contents of both — were seized, and, also, under garnishment proceedings, some funds belonging to him were seized.

The grounds of attachment were that defendant had converted or was about to convert his property into money or evidences of debt, and that he had mortgaged, assigned, or disposed of, or was about so to do, his property, rights or credits, or some part thereof with intent to defraud his creditors, or give an unfair preference to some of them.

Defendant filed a motion to dissolve on various grounds, one of which was that the statements and allegations of the petition and affidavit, on which the attachment issued, are without foundation in fact, untrue and false.

The trial of this motion resulted in the dissolution of the attachment, and from this judgment plaintiffs appeal.

Recognizing that the affidavit must be supported by proof of an act or acts showing the intent of the debtor to defraud his creditors, plaintiffs undertook to do so, and much testimony was taken pro and con.

We rise from its consideration, as did the district judge, convinced that the grounds disclosed do not sustain the attachment.

True, it was shown on behalf of the plaintiffs that goods manufactured at defendant’s factory were sold irregularly, not in the usual course of business, and for prices below the cost of manufacture, and that this had been going on for eighteen months prior to the attachment, depleting the stock and jeopardizing alike the business of defendant and the interests of his creditors.

But this was met by proof on behalf of defendant that these things were not known to him; that the sales referred to were made at the factory surreptitiously and against his orders; that he was himself defrauded by them; that it was the rule of his business no sales of goods were to be made from the factory except upon orders from the store; that it was only at the store that orders were to he taken and trading done; that conspicuously posted at the door of the factory was a sign reading “office and sales room, 133 and 135 Baronne street,” at the staircase another “no admittance,” and over the desk another, three or four feet square, reading “no orders taken here;” that the sales made at the factory were never reported to the store, or to defendant or his book-keeper; that he never received a cent of the money and no entry of the transactions were made upon the books; that the foreman in charge of the factory (his son) acted beyond the scope of his authority and in disobedience of orders in effecting such sales; that the parties to whom he sold the goods knew of the irregular and dishonest character of the purchases they were making; and that the same were studiously kept from the knowledge of defendant who learned of them for the first time after the attachment.

Under these circumstances it cannot be held that a fraudulent intent is shown to have existed on part of this debtor to defraud his creditors or give an unfair preference.

The reasonable inference, deduction or conclusion to be drawn from the facts proven is not that the fraudulent intent existed.

Other than the disreputable and unauthorized conduct of his son, there is no sufficient showing made to warrant the attachment.

If defendant knew not of these acts and doings of h:s foreman how could the intent arise or be formed in his (defendant’s) mind to defraud his creditors through such acts ?

Thus, therefore, the attachment itself was unauthorized, though this is far from saying the proceeding by attachment was without justification.

This creditor, learning of ¡hese irregular and vicious practices of the son, who was in a position of authority, may well have concluded grounds for attachment existed, when in point of fact they did not exist. And while the court is constrained to sustain the judgment dissolving the writ, it is not to be understood as holding that plaintiffs were without justification in resorting to the writ.

Judgment affirmed.

On Application for Behearing.

Per Curiam.

We have read the earnest and carefully prepared brief of appellant for a rehearing. Our views, as heretofore expressed, remain unchanged.

We deem it proper to add that appellant particularly directs our attention to the sentence in the judgment appealed from reserving to appellee the right to sue' for damages and asks that it be eliminated entirely from the judgment. We have heretofore expressed ourselves clearly upon the subject and we think our views as expressed sufficiently dispose of the question of damages without the necessity of a special amendment.

Rehearing refused.


text:
    No. 14,010.
    State of Louisiana vs. T. W. Mathis
    Syllabus.
    1. In determining the competency of a witness as an expert, called to give the result of his examination of the books and accounts of a defaulting Parish Treasurer-, much discretion is allowed the trial judge, and his ruling that the witness is sufficiently qualified as an expert to testify will not be disturbed where nothing appears to show error.
    2. Objection to the parol testimony of an expert, who had examined the books, as to the results of his examination, on the ground that the books themselves are the best evidence of the facts sought to be elicited, is not tenable.
    3. Where written receipts for money paid over are lost or destroyed and cannot be found after diligent search, parol testimony is competent to prove the amounts so paid over.
    4. It is not necessary to allege in an indictment for embezzlement from whom the money was received.
    5. The question of time, in its bearing upon the charge of embezzlement, is one for the jury, and an objection to testimony relating thereto is properly overruled on the ground that it goes to the effect to be given to the evidence rather than to its admissibility.
    6. The file mark of the Clerk of the Court on the report of the grand jury sufficiently identifies it.
    7. A jury’s verdict of conviction, thus showing their finding of the fact of embezzlement, will not be set aside because of the absence of formal demand upon the embezzler for the return of the funds prior to prosecution.
    8. Matters relating to continuances, delays to obtain the presence of witnesses, the alleged surprise of the applicant for the delay, etc., are in the just discretion of the trial judge, and this court must be satisfied that there has been an abuse of such discretion before it is warranted In Interfering.
    APPEAL from Fifth Judicial District, Parish of Winn— Machen, J.

      Walter Guión, Attorney General, and A. B. Hundley, District Attorney, (Lewis Guión, of Counsel), for Plaintiff, Appellee.

      3. T. Wallace, 3. H. Mathews, Earl E. Kidd, W. M, Wallace and Hunter & Hunter, for Defendant, Appellant.
   The opinion of the court was delivered by

Blanchard, J.

The accused was treasurer of the Parish of Winn. As such he was custodian of the parochial funds and those pertaining to the School Board of the parish.

He was indicted for embezzlement and larceny of the funds of the School Board, tried by jury, convicted of embezzlement and sentenced to pay a fine equal to the amount embezzled ($2,996.01) and to be confined at hard labor in the penitentiary for five years.

He appeals.

Fifteen bills of exception attest the zeal and stubbornness with which his counsel defended him.

Six only of these, however, are pressed upon our attention. Following the example of counsel, the court will confine its examination of the ease to the issues raised by these six bills.

The first of these is numbered six in the record and is leveled at the ruling of the trial court permitting one Smith, a witness for the State, to testify as to the result of his examination of the Treasurer’s books.

The objection made to Smith’s testimony was that it was not shown the witness was an expert book-keeper, and that the books themselves were the best evidence of the facts sought to be elicited.

The judge, in his reasons for overruling the objection, states the witness testified he had been engaged in book-keeping since 1885, a part of the time in mercantile houses doing a large credit business, and that when he made the examination of the books he was one of a committee appointed by the grand jury, of which body he was a member, for the purpose. The judge thought the witness’ long experience as a book-keeper qualified him sufficiently as an expert to warrant his evidence being heard as to what the books disclosed.

There is nothing to show that he was mistaken as to this, and his ruling is sustained.

Wharton Criminal Evidence, 9th Ed., p. 339, §§ 406, 408.

The other part of the objection, that the books themselves were the best evidence of the facts sought to be elicited from the witness, the judge gives as a reason for overruling it that the books did not show the result of the examination of the committee appointed by the grand jury. This, doubtless, meant that the books themselves, unexplained, showed nothing to the court and jury.

It is not understood that the object in calling the witness Smith to the stand was to show the contents of the books, but that its object was to show the witness had examined the books and what the result of his examination was. Whether the books had then been produced and offered in evidence, the bill of exceptions does not disclose.

The objection that “the books, themselves, are the best evidence” does not convey the information that they had not been offered, for even if they had, prior to the examination of the witness, been tendered and received in evidence, yet might the objection be made (however untenable) that the books were the best evidence and the matter of their contents, what they showed or did not show, could not be gone into by parol.

But this witness was called as an expert, who, under authority of the grand jury and of the judge in his charge to that body, had already examined the books, and it was competent for him to give testimony as to the result of that examination.

“Expert accountants may be permitted to give in evidence the result of their examination of the books, accounts, etc., .kept by the alleged embezzler in connection with the trust which he is claimed to have violated, when such books, accounts, etc., are too voluminous to permit of an examination of them in court.”

Am. and Eng. Ency of Law, 2nd Ed., Vol. 10, verbo “Embezzlement,” p. 1034; State vs. Findley, 101 Mo. 217; State vs. Reinhart, 26 Oregon, 466; Wharton Crim. Ev., 9th Ed., Section 166; Underhill on Crim. Ev., p. 56, par. 45.

In Hollingsworth vs. State, 111 Ind. 289, the Supreme Court of that State held that experts, who make an examination of voluminous books, records, papers and files of the County Treasurer’s office, may be allowed to testify to such facts shown by the books and records as will establish the amount of the defalcation. See also Underhill on Crim. Ev., p. 351, par. 291.

The fact that the witness Smith had been a grand juror and had participated in the finding,of the indictment, did not disqualify him from testifying on the trial of the indictment. His testimony at the trial, of what was the result of his examination of the books, is to be considered in no wise a disclosure of the secrets of the grand jury-room.

Bill of exceptions No. Y is the next one insisted on, and it is leveled at the ruling of the judge in permitting the witness Crawford, called by the State, to testify as to the amount of public funds he had delivered into the hands of the accused as Parish Treasurer.

Objection was made that the receipts signed by the accused were the best evidence, and, second, that the indictment did not allege the accused received any money from Crawford.

In his statement the judge says Crawford was sheriff of the parish when he delivered the funds to Mathis, and had stated on the stand he rarely took a receipt when he paid moneys over to the Treasurer; but that, to be on the safe side, he (the judge) permitted the witness to leave the stand and make search for receipts. This he did, and returning to the stand in the afternoon testified he had made diligent search and had found no receipts; that if any had been taken they were lost or destroyed. That,.thereupon, he was permitted to give testimony as to the amount of money he had paid over to Mathis.

There was no error here.

As to the second objection embodied in this bill, the judge correctly held it was not necessary to allege in the indictment from whom the money was received; that if the accused, as treasurer, received public funds from any source, and failed to account for the same on demand, he was guilty of embezzlement.

Bill No. 9 next engages our attention. Its complaint is that the witness -Long, sworn on behalf of the State; was permitted to testify that the accused, about- one year prior to the alleged embezzlement, had said to the witness he (the accused) was “short in school funds.'’ Objection was made that things and facts happening, and statements made, at a period so remotely anterior to the finding of the indictment were irrevelent. The judge ruled, in substance, that the objection went to the effect of the evidence rather than to its admissibility, and that the question of time -in its bearing upon the charge of embezzlement was .one for the jury.

He did not err.

We come next to Bill No. 10. Its complaint is that the State offered in evidence what purported to be the report of the grand jury, and at that same time offered what purported to be a statement of the Parish Treasurer .to the grand jury, both of which' were received over the objection of the accused. This objection — and the only one — was that neither of the documents offered had been identified.

The judge ruled that the report of the grand jury bore the file mark of the clerk of the court, thus showing it to be a part of the court records in the custody of the clerk, and that this was sufficient identification.

He states, further, that so far as the statement of the accused as Parish Treasurer is concerned, his signature was proven before it was received in evidence.

We find no error here.

This brings us to Bill No. 14. Its grievance is that after the court-had charged the jury counsel for defendant requested a special charge to the effect that a demand for the school funds must be made of the Parish Treasurer by the School Board, or some other person authorized by said Board to make it, before the Treasurer could be found guilty of embezzlement.

The judge refused this, assigning as reason therefor that his general charge covered the matter of the special charge asked for.

The language of the general charge on this point was: “If you fail to find beyond a reasonable doubt * * * that the defendant, ns Parish Treasurer, received some money (the particular amount not necessary) belonging to the School Board, * * * as alleged in the indictment, and that he failed to pay it over on demand, * * * it is your duty to acquit him.” And he further charged, in this connection, that the demand must be made by a person having a legal right to make it.

We think this was a sufficient instruction to the jury, and that the declination of the judge to give it again in the way of a special charge was not reversible error.

Indeed, we might go further and hold that no formal demand upon a Parish Treasurer for the return of school funds in his hands need b<* shown as a condition precedent to his being prosecuted for embezzlement where the fact of embezzlement is sufficiently shown.

Hollingsworth vs. State, 111 Ind. 296; State vs. Mason, 108 Ind. 48-52; R. S. Sec. 903; State vs. Eames, 39 La. Ann. 987.

The last contention of defendant is found embodied in Bill No. 15.

It seems that after the case had been closed, but before argument had, the prosecution moved to reopen it in order to recall the witness Warner to the stand. This was objected to, but the objection was overruled.

Whereupon Warner took the stand and testified to seeing the defendant with a large sum of money and that he had confessed to him he was short in his accounts and was a defaulter.

Thereupon the accused, alleging surprise, moved in writing for a subpoena for one Dr. Bonnette, who lived in the adjoining parish, and for time to have him brought to the court to testify in denial of the statements of the witness Warner.

The judge refused this, giving as reason therefor that the accused was not taken by surprise; that Dr. Bonnette was a cousin of his (the accused) and the latter had fled to his house and was found and arrested there by the officers of the law, to whom the confession of guilt was made; that the witness Bonnette lived about fifty miles from the court house; that the application for his subpoena was made on Tuesday and the jury had then already been shut up since the Friday before, and to have granted the application would have delayed the case two days longer; and, finally, that there were other witnesses then in the courtroom who were present at the time referred to, and who could have been called to the stand by defendant had he chosen to do so. Concluding, the judge says he considered the application was made only for delay and that no injustice was done the accused.

The bill in question is leveled at the refusal to allow the delay to obtain the presence of Bonnette.

While this is considered the most serious of the many objections urged against the legal sufficiency of this trial; we have not found our way to the conclusion that a case is made out warranting the reversal of the verdict and sentence. Much in matters relating to continuances, delays to obtain the presence of witnesses, the alleged surprise of the applicant for the delay, etc., must necessarily be left to the just discretion of the trial court. We are far from being satisfied he has abused this discretion in the instant case.

Judgment affirmed.


text:
    No. 14,159.
    State of Louisiana vs. Gass Young.
    Syllabus.
    Where, In a criminal case, the transcript of appeal contains no bill of exceptions, motion in arrest, or assignment of error, and discloses no defect, patent upon the face of the record, in the proceedings leading to the conviction and sentence of the appellant, the judgment appealed from will be affirmed.
    APPEAL from the Second Judicial District, Parish of Bossier.— Watkins, J.

      Walter Guión, Attorney General, and Thomas T. Land, District Attorney (Lewis- Guión, of Counsel), for Plaintiff, Appellee.

      Joannes Smith, for Defendant, Appellant.
   The opinion of the court was delivered hy

Monroe, J.

This case comes before this court upon an appeal, taken on behalf of the defendant, from a conviction of murder and sentence of death. The transcript contains no bill of exceptions, motion in arrest, or assignment of error, and discloses no defect, patent upon the face of the record, in the proceedings leading up to the conviction and sentence of the appellant. The established rule applicable in such case is, that the judgment appealed from should be affirmed. State vs Powers, 52 Ann. 1254; State vs. Darrow, 39 Ann. 677; State vs. Wire, 38 Ann. 684; State vs. Williams, 37 Ann. 311; State vs. Potter & Muller, 33 Ann. 795.

Judgment affirmed.


text:
    No. 14,147.
    State of Louisiana vs. Thomas Goff.
    Syllabus.
    On the Motion to Dismiss.
    Article 85 of the Constitution of 1898 confers jurisdiction on the Supreme Court regardless of the nature of the crime, whether a felony or a misdemeanor, in all cases in which a law of the State has been declared unconstitutional.
    The motion to dismiss is denied.
    On the Merits.
    The title of the statute conforms with the Constitution as relates to “labor contracts” exclusively. The body of the statute contains two objects, one legal and plain enough ; the other illegal, because of its vagueness and uncertainty. Besides being vague and uncertain, the latter is not covered by the title.
    Where the act is broader than the title, part of it can stand, because covered by the title ; and the object, not indicated by the title, can be eliminated. That which remains can be enforced, if sensible and capable of being enforced. The remaining part is complete and can be enforced. State vs. Ferguson, 104 La. 253 ; Cooley’s Constitutional Limitations, p. 181.
    APPEAL from Seventh Judicial District, Parish of Richland.— Gray, J.

      Walter Guión, Attorney General, and John R. McIntosh, District Attorney (Lewis Guión, of Counsel), for Plaintiff, Appellant.

      Jeff B. Snyder, for Defendant ,Appellee.
   The opinion of the court was delivered by

Breaux, J.

The defendant was indicted for interfering with a labor contract. The statute denounces as a misdemeanor the inticing or inducing away of a laborer from his employer, or the place rented, before the expiration of his contract, upon which money or goods have been advanced, without first tendering to the person by whom the advances are made the rent or the value of the goods advanced. The penalty consists of a fine in a sum not less than ten, nor more than two hundred dollars, and in default of payment, imprisonment a stated number of days is to follow.

The defendant moved to quash the indictment, and to that end alleged that Section 2 of Act 50 of 1892 conflicts with Article 31 of the Constitution of this state, which provides that every law of the General Assembly must embrace one subject only and that this subject must be indicated in the title.

The judge of the district court sustained the motion. The State prosecutes this appeal.

On Motion to Dismiss the Appfal.

The defendant and appellee urges as ground to dismiss the appeal that the Constitution makes no provision for an appeal in the misdemeanor with which the accused is charged.

No one will deny that Article 85 of the Constitution of 1898 invests this court with jurisdiction on appeal in all cases in which an ordinance of a municipal corporation, or a law of this State, has been declared unconstitutional in civil cases. But the contention of the learned counsel for the defendant is that the grant of jurisdiction is limited to civil matters. He bases his argument upon the words which follow the paragraph to which we have just referred, limiting appeal-able eases to questions of law alone, “whenever the punishment of death or imprisonment at hard labor may be inflicted, or a fine exceeding three hundred dollars, or imprisonment exceeding six months, is actually imposed;” and that, in consequence, Act 50 of 1892, as relates to appeal, does not come within the grant of jurisdiction.

“When a law of this State has been declared unconstitutional,” must be held to refer to all cases, whether in civil or criminal matters, unless restricted in terms in another part of the article. The words which follow, viz: “And to criminal cases on questions of law alone,” and those following in the article, add to the extent of the jurisdiction instead of restricting the jurisdiction. We have every reason to infer that if it had been the intention to limit the jurisdiction to civil matters, it would have been expressly stated, and that the words “all cases” would not have been used.

The issue falls directly within the terms of the Constitution granting to the State the right to be heard in support of the constitutionality of the law which has been declared unconstitutional. The issue is not one in which the defendant attacks the law as unconstitutional, but it relates to a decision in which a statute was declared unconstitutional. It is evident it was not the intention to let different antagonistic action be taken by the courts, the one holding a law constitutional and the other unconstitutional in unappealable cases. There was necessity in this respect to maintain the uniformity of jurisprudence, and to that end, we think the words “in all cases wherein a law has been declared unconstitutional” have been inserted in this article.

On the Merits.

Part of the statute does not seem to limit the misdemeanor to interference with a labor contract. The words: “inducing the laborer to leave the place rented, before the expiration of his contract,” and “damages as,” relates to “landlord,” in the line bejore the last of Section 2 of the statute, are not as certain as should be the language of a law.

The title is not in itself defective. The statute is broader than its title. The title indicates that the purpose is to “enforce labor contracts,” and to make certain acts, as relates to laborers, a misdemeanor. There is certainly in this, as relates to a title, nothing objectionable. We have said, in the second place, that the statute is broader than its title. The words before quoted from the statute relating to “landlord” and “place rented,” do not fall within the scope of the title. It is foreign to the object as indicated by the title. It relates to lease, and as set out in the statute, is not germane to, or part of the object covered by, the title.

Having arrived at the conclusion that the act is broader than the title, we are next led, by the issues, to inquire as to whether the legal part of the statute can stand, and is not destroyed by the effect of the illegal part. The legal part would not escape from the oblivion to which the illegal part would carry it if they were inseparable; if one was intimately connected with the other, so as to render a separation of the two impossible. The first part relates to the laborer and the necessity of his being let alone, and that he be not improperly influenced; and the other relates to the “place rented.” The good and the bad cannot stand together, but the good can be separated from the illegal and given the effect intended. Law is not law if it violates the Constitution, but this relates to the part which violates it, or is obnoxious to its requirements. This court said in a well considered case: “Courts and text writers have long since settled that, where a part of a statute is constitutional, and a part unconstitutional, it is permissible to separate the good from the bad.” State vs. Ferguson, 101 La. 253, citing several decisions.

Under this principle of interpretation, we would not be justified in adopting in all cases the rule nullus in uno, nullus in omnibus, for we have seen that an act may well be null in one, and in other respects legal and constitutional. Here, without regard to the last part of the sentence, the first part has a defined purpose not to be misunderstood, which clearly enough sets forth the legislative will. Mr. Cooley, in In's work on Constitutional Limitations, p 181, regarding the effect where the act is broader than the title, says: “But, if the act is broader than the title, it may happen that one part of it can stand, because indicated by the title, while as to the object not indicated by the title it must fall. Some of the State Constitutions, it will be perceived, have declared that this shall be true; but the declaration was unnecessary; as the general rule, that so much of the act as is not in conflict with the Constitution must be sustained, would have required the same declaration from the courts. If by striking from the act all that relates to the object not indicated by the title, that which is left is complete in itself, sensible, capable of being executed, and wholly independent of that which is rejected, it must be sustained as constitutional.”

In the case at hand, that which is left is complete. It never was conjunctively made a part of that which we think should be considered eliminated. The word “or” sufficiently disconnects the two to separate them.

The policy of the statute is not before us for consideration, only the legislative will. The ease will have to be reinstated, and the defendant left to all his defenses, except the one constitutional ground specially invoked by him and overruled.

For the reasons assigned, it is ordered, adjudged and decreed, that the judgment appealed from which sustains the motion to quash on the grounds mentioned, is avoided, annulled and reversed.

It is further ordered, adjudged and decreed, that the case be reinstated on the docket of the court and that it be proceeded with according to law.


text:
    No. 14,041.
    State of Louisiana vs. Matthew West.
    Syllabus.
    1. The attempt to rob by violently snatching property, falls within the terms of Section 811 of the Revised Statutes.
    2. The attempt to rob is not confined to “cutting or tearing the clothes or thrusting the hand into the pockets.” The statute, by the use of the word “other wise,” includes an attempt to rob by violently snatching away the property from the hands of another.
    APPEAL from the Criminal District Court, Parish of Orleans.— Chretien, J.

      Walter Guión, Attorney General, J. Ward Gurley, District Attorney, and 8. A. Montgomery, Assistant District Attorney (Lewis Guión, of Counsel), for Plaintiff, Appellee.

      Jeremiah J. Foley, for Defendant, Appellant.
   The opinion of the court was delivered by

Breaux, J.

An information was filed, charging the defendant with having feloniously attempted to rob, from the person of Mrs. A. A. Guardia, á pocketbook containing twelve dollars in currency of the United States by attempting to snatch the said purse and contents from her hand, violently and with the felonious intent of stealing and carrying away the amount.

The section of the Revised Statutes 811, which he is charged with having violated, reads as follows: “Whoever shall be found guilty of attempting to rob, from the person of another, money or other property by cutting or tearing the clothes, thrusting the hand into the pockets, or otherwise, though he do not succeed in such attempted robbery, shall, on conviction, be “punished as set forth in the statute.”

Defendant, through his counsel, demurred to the information. He also moved for a new trial, and filed a motion in arrest of judgment, which motions were overruled. Defendant was sentenced to the parish prison for six months and three days. From the sentence, he prosecutes this appeal.

The error assigned is that the averments of the information do iiot sustain the sentence and judgment of the court, for the reason that they do not set forth an attempt to rob from the person, such as cutting or tearing the clothes, or thrusting the hand into the pocket. Learned counsel for the accused argues that the statute does not denounce as an offense the attempt to snatch a purse, and contends that it is directed to the punishment of one who attempts to rob by cutting or tearing the clothes or thrusting the hand into the pockets.

While it is true that the words “snatch violently” are npt used in the statute, it remains that its scope has been enlarged by the use of the word “otherwise.” The information charges a way of attempting to rob not foreign to the wrong the words of the statute expressly denounce— the offense is of the same kind or class. The charge is the taking of a purse and its contents by force, by violently seizing the hand. There is as much force and violence to be inferred, and the chances of success are as great from the “snatching violently” as in “cutting” or “tearing” “the clothes” and “thrusting the hand into the pocket” as set out in the statute. In State vs. Nelson, 38 Ann. 942, to which counsel directs our attention, the court found that the weapon referred to in the indictment was not a dangerous weapon within the intendment. Having arrived at that conclusion, the indictment was, in consequence, held invalid, for the statute contained the words “other dangerous weapon.”

In the case in hand, the crime was committed, if the accused violently snatched the purse as charged. The manner of the attempt was as wrongful and as much against common right as if he had made the attempt by cutting or tearing the clothes or thrusting the hand in the pocket of the one he was attempting to rob, using the words of the statute. The “snatching” is denounced as having been forcible and violent. The law is directed against the taking of property from the person of another against the person’s will. The intent of the word “otherwise” as used evidently was to include all similar acts to those denounced, resorted to in the attempt to “rob.” The statute includes attempts other than those expressly mentioned by the use of the word, by expressly providing that attempts in a different manner and is another way than in that specifically denounced, shall be subject to punishment, and the information setting out the attempt has not taken it out of the grasp of the statute by charging that it was made by violently snatching the purse. We take it as well settled that an indictment or information will be held good and valid, although the words of the statute denouncing the crime are not copied, provided words of equivalent meaning and import to those of the statute are used. We think that the information charges the attempt in words of at least equal meaning and import.

The ruling complained of was not illegal or improper. It only remains for us to affirm the sentence and judgment. They are affirmed.


text:
    No. 13,840.
    Succession of Mrs. Louisa Fried and Tobias Fried.
    Syllabus.
    1. Although an under-tutor is appointed a few days prior to the appointment of a tutor, his appointment is legal.
    2. The debtor to the minors should not be appointed one of the members of a family meeting called to recommend some one to be appointed tutor. This rule of exclusion does not have the effect of excluding the brother of the minors, who is without interest, and who is not a debtor to them.
    3. There were relatives of the minors to compose the family meeting. They were not called, but friends were appointed. Friends are called upon to serve in default of relatives. C. C. 281.
    4. The judgment homologating the proceedings of the family meeting is annulled, and the case is remanded.
    APPEAL from the Twenty-eighth Judicial District, Parish of Jefferson. — Gaudet, J.

      James B. Rosser, Jr., for Henry Peter, Appellant.

      Gharbonnet & Marrero, for Mrs. Louisa B. Rhodes and Philip Edwin Fried, Appellees.
   The opinion of the court was delivered by

Breaux, J.

Appellant seeks to have annulled a judgment dated the 17th day of November, 1900, approving and homologating the recommendation and advice of the family meeting.convened before John L. Langdridge, notary public, on the 11th day of October, 1900, appointing Thomas Evans Rhodes as tutor of the minors Frank George Fried and Tobias Fried, and further, in that connection, to have annulled all the proceedings had purporting to have been held in the interest and for the benefit of these minors in regard to the said appointment of a tutor.

We assume that on the day the family meeting was held, for the paper is not dated, that the appellant objected in writing to the family meeting held on the 11th day of October, 1900, and requested, as well as directed, the clerk of court before whom the family meeting was held to incorporate the grounds of objection in his proces verbal of the family meeting, a request and direction with which the officer complied. The grounds of objection were that strangers or friends were to serve by appointment as members of the family meeting, although the minors had a number of relatives competent to serve as members of the family meeting residing within the circle prescribed by law.

On the 18th day of October, a petition to homologate the proceedings of this family meeting was filed. The petitioners for the homologation of the proceedings of the family meeting averred that Iienry Peters, the appellant before this court, maternal uncle of the minors, named as a member of the family meeting, objected and protested against the family meeting on the ground before mentioned.

The petitioners asked the court to have Peters cited, we assume, in order that he might be heard in support of his objection, and, in addition, prayed for the homologation of the proceedings of the family meeting. In due time thereafter, Henry Peters appeared before the court and filed an exception to the petition of Louisa Fried and Thomas E. Rhodes, her husband, (the former, the sister of the minors in whose interest the family meeting had been held) and an exception to the petition of Philip Edward Fried, on the ground that Louisa Fried was not authorized by her husband to bring this suit, and stand in judgment, and that as to her husband, Thomas E. Rhodes, the petition disclosed no legal cause of action.

The case was set for trial on November 3rd, 1900. By consent of counsel for both plaintiff and defendant, on that date the case was continued to November 17th, 1900, at which time it was taken up, tried, and judgment of homologation pronounced. Thomas Evans Rhodes was appointed tutor, and the amount of his bond fixed. Rhodes furnished his bond, and it was recorded, and he qualified as tutor.

Counsel for appellant moved for a new trial and averred for this new trial that the judgment rendered on the 17th of November, 1900, homologating the proceedings of the family meeting and appointing Rhodes, tutor, overruling appellant’s exception, was contrary to law by reason of the fact that both counsel and client (the appellant) were ill and unable to be present at the trial; that the attorneys for the succession 'were notified of the illness of mover’s attorney, on the 16th day of November, 1900; and, lastly, that if the trial of the exception had been regular and the judgment overruling the exception of mover legal, then mover was entitled by law to a reasonable time within which to answer.

We take the issues for decision as nearly as possible in their order.

In the first place, in attacking the proceedings, appellant urges that the appointment of the undertutor is illegal, because he was not appointed at the time that letters of tutorship were issued to the tutor. We do not attach the greatest importance to time in making the appointment of the undertutor. Andrew G. Gugel was duly appointed and qualified as undertutor of the minors, Frank George Fried and Tobias Fried. . The subsequent action of the court has not had the effect of annulling his appointment. The undertutor remains in his trust and continues in its discharge until he is discharged in one of the ways provided by law.

The next point in the order of issues, which attracted our attention, relates to the asserted want of authorization of the wife as a petitioner.

The exception assumes that Mrs. Louisa. Fried, wife of Thomas Rhodes, sister of the minors, was not authorized by her husband. The husband was a party to the petition and joined his wife as a petitioner. The averment is met by the wife that she is authorized as it was in Hayes vs. Dugas, 51 Ann. 447. The husband is one of the petitioners for the purpose of authorizing his wife. The point, in our view, has no merit.

The next ground of appellant’s objection is that the law has not been complied with in that appellant says that no other relatives than the appellant himself were named, notified, or requested to attend and be members of the family meeting and that these minors had other relatives residing in the circle prescribed by law. It does appear that there are male relatives of these minors residing within the Parish of Jefferson, and several in the Parish of Orleans. At least five relatives shall be selected to compose the meeting, or, in default of relatives, friends. That provision of the law has not been complied with. The minors have a brother of age who resides in the same parish and, also, other relatives. It is urged by appellees, Rhodes and wife, that at least two of the relatives had an interest adverse to the interest of the minors and they invoke the Article 288 of the Civil Code in justification cf their exclusion from serving as members of the family meeting. The objection to one of these two is well founded. He owed a considerable amount to the succession, and, in the light of the article cited, he was not a proper person to serve on the family meeting. This objection does not hold good against the other relative, the brother of age of these minors. He has no adverse interest to his brothers by the mere fact that he is their co-heir. There is no question of the disposition of property. The whole proceeding relates to the appointment of a tutor. There are other relatives who should have been notified to attend, and, on that ground alone, we feel constrained to set aside the judgment homologating the proceedings of the family meeting. True, a judge has authority, in the exercise of a sound legal discretion, to exclude relatives in exceptional cases. In the Bothick case, in the 44th Annual, p, 1037, the court held thát the judge not only has the legal discretion, but it becomes his duty to exclude from a family meeting relatives who are “hostile to a minor or evidently pursuing their own interests,” but not, however, without some reason prompting the exclusion.

As in the cited case, we are not disposed to restrict the judge’s authority, although we think it imperative not to hold as legal a family meeting composed of strangers when no notice«has been given to relatives. Although, in matter of the appointment of a tutor, the family meeting is advisory, and the judge is invested With large discretion, yet it should appear that it has been organized in the manner required.

We will not pass upon the other grounds pressed upon our attention. The conclusion arrived at relieves us of the necessity of deciding them. We will say, nonetheless, that we have given them consideration. They did not impress us as having any weight.

It is therefore, ordered, adjudged, and decreed, that the judgment of the District Court, dated 17th November, 1900, homologating the proceedings of the family meeting held on the 11th day of October, 1900, and appointing Thomas E. Rhodes, tutor, is annulled, avoided, and reversed at the cost of the appellee.

It is further ordered, adjudged, and decreed, that the ease be remanded to be proceeded with in accordance with the views heretofore expressed, i. e., to hold a family meeting and appoint a dative tutor to the minors.

Rehearing refused.