text:
    No. 147.
    Bujac & Girardy v. George Williamson.
    A.Q amended answer, particularizing the fraudulent practices and misrepresentations charged in the original answer, may be filed at any time beiore the cause is set down for trial.
    Evidence offered by defendants to show that other parties claimed the patent rights which plaintiffs professed to own, and that suit had been instituted for an infringement of it, was excluded by the court a qua. Held — That the ruling wa3 correct, for the reason that the testimony was irrelevant, and that there was no allegation in the answer warranting such
    Under the allega'ions of fraud and deception contained in the answer, the evidence of the defendant is admissible to show all the circumstances tending to establish the charges.
    APPEAL from the Tenth Judicial District, parish of Caddo. O. O. Henderson (attorney at law), Special Judge, vice Levisee, J., ■recused.

      Looney & Wells, for plaintiffs and appellants. JEgan, Williamson <& Wise and 8. L. Taylor, for defendant and appellee.
    This case was tried by a jury in the court below, and involves only «questions of fact on the merits.
   Taliaferro, J.

The plaintiffs sue on a promissory note executed in their favor by the defendant for the sum of $3800, dated March 2,1867, due September 1, the same year, and stipulating interest at eight per cent, per annum from date, and $3 75 cost of protest. The defendant’s .answer avers failure of consideration for which the note was given, arising ,from, fraudulent practices and misrepresentations of M. J. Bujac, one of the plaintiffs. In an amended answer the defendant sets out more specifically the acts and misrepresentations complained of. The case was-put before a jury and a verdict in favor of the defendant was returned. The judgment was rendered accordingly, and the plaintiffs have appealed.

It seems that in January, 1866, a company was organized at Shreveport for the purpose of manufacturing ice. The defendant took stock to the amount of $1000, which was afterwards increased to $5000. The plaintiffs appear to have encouraged and promoted the undertaking. They furnished the machines and appliances necessary in the manufacturing of ice. They procured for the company engineers and persons skilled iu the working- of the machines necessary in the process of ice making, and liad such repairs made as were required to be done in New Orleans. Early in March they sold a machine to the company, and in July following another. ■ In September, 1866, the company amended their charter and increased their stock. After this the company purchased the patent for ice making in Harrison and Marion counties, Texas.

The enterprise proved to be a failure. Operations it appears were continued during the years 1866 and 1867 at intervals, under the management of the company. In 1868, during part of the year, the ice works were leased out. Subsequently, during the same year, the company was' dissolved and its assets sold by the sheriff. The consideration of the note sued on was thirty-eight shares of the stock of the company.

The defendant avers that he was induced to embark in the undertaking by the representations of the plaintiff, Bujac, who spoke in. terms of the highest commendation of the machines which he induced the company to purchase, by stating that they were in successful operation in Europe, where ice was made by them at a profit even when it was sold at a cent per pound. That the machines were capable, each, of producing four thousand pounds of ice per day of twenty-four hours. That the machines were new or at least had been but little used.

The defendant avers that being entirely unacquainted with the new business he was about to engage in he relied upon the statements of Bujac, in regard to the character and capacity of the machines, which were purchased upon his advice. That the plaintiffs held out to him that the large dividends to be divided by the company could b.e applied to the payment of the note sued upon. That the value of the stock depended upon the efficiency of the machinery.

The defendant shows that Bujac was very urgent that the company-should buy the second machine and the patent right for the counties of Marion and Harrison, in Texas, representing that he could sell to Dther parties, and recommended that the company should purchase.

The defendant alleges that none of these representations were true. He charges that the machines were old and to a great extent worthless. That worked to their greatest capacity and by skillful men, they fell far short of making four thousand pounds of ice, each, per day. That frequent and costly repairs were necessary, and that the making of these repairs necessarily .produced injurious delays in business. He states in his own testimony that as president of the company ho endeavored to sell the patent right for the two counties in Texas, but failed to receive an offer, after giving publicity to the proposition by advertisement and otherwise, and after great efforts to make the sale.

We find in the record several bills of exceptions. The first is to the admission of the amended answer of the defendant on the ground,

First — That it came too late, being dilatory in its character.

Second, — That it changes the issue, setting up new facts, and takes plaintiffs by surprise.

Third — That the allegations of the amended answer are irrelevant to the issue.

The objections were overruled by the judge a quo for the reason that the amended answer merely particularized the fraudulent practices and misrepresentations charged in the original answer, and that this might be done at any time before the case was set down for trial. We think, from reading the answers of the defendant, that the objections were properly overruled for the reasons stated by the judge. The second and third bills of exceptions were taken by plaintiffs to the admission of evidence on the ground of irrelevancy. We think they were properly overruled.

The fourth was taken by the defendant to the refusal of the court to admit evidence to show that other parties claimed the patent right which Bujac & Girardy professed to own, and that suit had been instituted for infringement of it.

This ruling we think correct, and that the plaintiffs’ objections were properly sustained, for the reason that the testimony was irrelevant, and that there was no allegation in the answer that warranted such proof.

The fifth bill of exceptions was taken by the plaintiffs to the admission of the defendant’s own testimony to show that, before the note sued on was executed, defendant told plaintiffs that he had already invested $5000 in stock, and did not wish to give cash for more until he could be assured of the success of the enterprise, and that' if it proved a failure the defendant should not be bound for the whole, and that the note should not be negotiated. The objection was, that it was the admission of parol testimony to contradict a written obligation. We think the judge a quo properly overruled the objection. The defendant had charged directly fraud, misrepresentation, and general bad faith in the plaintiffs, and error on his own part. The testimony was admissible under these allegations.

This is a case presenting mainly questions of fact. The record is voluminous, embracing a great array of testimony, both written and oral, and to a considerable extent the evidence is conflicting. Two of the defendant’s witnesses, Beckwith and Cooper, who were in charge of the works and ran the machines, swear that there were frequent “projections” occurring during.their operations, which caused stoppages of three .or four hours each. By projections they meant the heating of the ammonia too much, causing it in its fluid state to overflow and pass through other portions of the machinery.

Beckwith states that the first machine purchased by the company, designated as the “ Bed ” one, broke down in the. summer of 1866, when there was the greatest demand for ice, and that the company lost the whole of the remainder of that season. The second or “Blade'’ machine, the same witness states, was put up in September, 1866; that he thought it an old one, and that it did not do so well as the old machine. Says the machines did not produce more than two thousand pounds of ice per day. States that Putz instructed him and other employes in the management and manufacture of ice. That the Bed machine appeared to him to be good; when brought to Shreveport it had been recently painted, which gave it the appearance of being new. That for the first three or four months after it was put up it made, on an average, about three thousand pounds of ice per day; thinks the machine was run to its utmost capacity. There were no repairs during the first three or four months. Before Putz left, witness tldnles Putz told him that he and other employes were competent to run the machine. Witness, in his own opinion, ran the machine as successfully as Putz had done.

Cooper states that the machines were old, and he thought badly corroded. He attributed the deficiency in production to that cause. Neither of them, he says, was capable of producing four thousand pounds of ice per day throughout the year. He states' that the employes at the establishment were instructed by men who considered themselves first class ice makers, viz: Putz and Labarre.

This testimony of Cooper and Beckwith is corroborated by several other witnesses, as to the deficiencies of the machines, delays in operating, and other things. They are not versed in the business of ice •making, and have no sufficient knowledge of the apparatus used in the process.

On the part of the plaintiffs two witnesses, Labarre and Putz, testify as to the machines and the manner of their working. These men, it appears, were sent to Shreveport by the plaintiffs, to inaugurate the business of ice making there and to superintend the establishment at the beginning, and to instruct others who were to succeed them in the management of the machines.

Labarre says: I know tliat the Shreveport company used Carrie’s Patent lee Machine. I worked myself and x>ut up one of them in Shreveport, and successfully. The other machine had been put up by my foreman, Joseph Putz, which machine gave so much satisfaction that Mr. Williamson, the defendant and president of the Shreveport company, gave the most gratifying certificate of the success of the machine. Tile cause of the failure, or partly a failure there, was owing to the ignorance and bad administration. I know' it from what I saw in Shreveport, and afterwards by what my foreman told me. In answer to an interrogatory to the witness ho sayos : I have already answered this interrogatory by stating that the failure, or partial failure, was owing to the ignorance and bad administration of those who had charge of the machines.

Joseph Putz says: That he is well acquainted with Carrie’s ice machine; knows it to • be a success. Put up the two machines at Shreveport, one with Mr. Labarre and the other with Mr. Henry Bujac. The machines were tested and worked successfully during the time I was there. If, after I left it was a failure, or not a complete success, it was due to the incompetency and bad administration of those having-charge of the machines. I was employed by the company about three months, and during that time the machines were working with satisfaction, and I left them in good running order.

Henry Bujac, another witness for plaintiffs, swears that he is thoroughly acquainted with Carrie’s Patent Ice Machine, having learned the theory and practice and setting up the machine in the shop of Carrie & Co., in Paris. I have seen these machines tried and tested in Paris and in America, and they are pronounced a complete success. I accompanied and helped to put up the second Carrie’s ice machine purchased by the Shreveport company, and state that it was a success by certificates to that effect being- given by the president of the company. I make the statement because as long as competent workmen had charge of the machine the results were as plaintiff pronounced them to be. As soon as the workmen, furnished by plaintiff, left Shreveport the machines fell into the hands of ignorants, who worked it with so little care or attention that it produced hardly anything. The first machine, the witness states, failed through want of knowledge of those employed. The second one worked to entire satisfaction. The reason of the failure was not from any defect in the machine, “but solely on the part of the grand and utter ignorance of the workmen employed by the company.” They did not want to be corrected in their faults. In fact they run the machine as if it was a steam engine. As long as such workmen as Putz was at the factory at Shreveport, the working- of the machines was s® satisfactory that, if my memory serves me right, on a capital of $45,000 the company declared, in the space of three months, six per cent, and five per cent, dividend.

It appears, from what we gather from the record, that the ice making business was commenced in the month of April. The plaintiffs introduce a letter of the defendant as president of the company, dated June 22, 1866, as follows:

“Shreveport, June 22, 1866.

Gentlemen — We have the pleasure of saying, at the request of Mr. J. Putz, that his services have been very useful. His thorough, practical knowledge of the ice machine, and his devoted sense of duty make-us reluctant to part with him. He has been paid by the company in full up to the cessation of his labors on the fifteenth instant; but this-discharge of our pecuniary obligation to him renders us not the less-appreciative of the great advantage he has been to us in putting the machine in operation and instructing our employes.

Very respectfully, your ob’t serv’t,

“ George Williamson,

“President S. I. M. Co.

“To Messrs. Henslor, Labarre & Co., New Orleans.”

In the margin:

“P. S. — Mr. Putz has fully complied with his promise to make the-machine produce 4000 pounds per day of twenty-four hours.

“ We believe, with such an industrious and systematic manager as-he is, that our machine would produce this quantity daily. Yours,

“ George Williamson, President S. I. M. Co.”

The plaintiffs also produce the following certificate from the assistant secretary of the company:

“Shreveport, October 10, 1866.

“ I do hereby certify that Mr. Putz, in being relieved from his duties-as superintendent of the Shreveport ice works, left the machines in perfect running order, with a capacity of making 8000 pounds in twenty-four hours. W. T. Eustace,

“'Assistant Secretary S. I. M. Co.”

The witness Beckwith, says that Putz remained at the ice works about three months and a half after the machine ivas in operation; that there were no repairs during the first three or four months ; that they had to stop as often as once a week to clean out and repair, and sometimes oftener.

On the part of the plaintiffs, who were interested in the success of the undertaking, they seem to have been solicitous on the subject of having competent men to manage the machines, and who possessed the scientific and practical knowledge of ice making. They wrote, under date of seventh of June, 1867, expressing surprise on hearing that Hicot, who, it seems, went with Moysette to Shreveport in the capacity of a workman, had been discharged. Moysette was a workman expressly engaged by tbe owners of tbe patent in December, 1866, in Paris, to superintend and manage the working of ice machines. He was employed by the Shreveport company in March, 1867, at the same wages that Hensly & Labarre were to give. They expressed apprehensions, from reports that reached them, that Moysette would also be discharged, and they say:

“ We beg of you, in view of the interests of all concerned, not to let Moysette go, for he can get more out of your machines than any man around Shreveport. We fear that if Moysette should leave, you would lose the whole season.” ,

Cutliff, a witness, states that Iiicot and Moysette were employed by the company at the express recommendation of the plaintiffs.

The defendant charges that at the time of the execution of the note, the stock was actually worthless or nearly so. The note was given in March 2, 1867. He admits that in June following there had been a sale of stock in Shreveport at one twenty, and he advised plaintiffs, by letter, to hold on to their stock at one twenty-five. Ho says, in his own testimony, that when he wrote this letter the retort of the second machine was in New Orleans for repairs, and where ho supposed it would be thoroughly repaired-

Nutt, a witness, says: The stock of the company in March, 1867, had a speculative or prospective value, dependent upon the success of the enterprise.” This witness states that the purchase of the second machine and the patent right for the two counties in Texas, did involve the company in debt and heavy expenses. That Bujac represented to witness that they could sell to other parties the patent right for manufacturing and selling ice in Marion and Harrison counties, Texas, and recommended that the Shreveport company should purchase at once.

After reviewing all the testimony adduced, and it constitutes a large mass, we find ourselves inclined to a different conclusion than that arrived at by the jury. The main question in this case is, was there a failure of consideration for the note, and was the defendant injured by deception and misrepresentation practiced upon them by the plaintiffs ? We think that the testimony does not sustain this charge.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed. It is further ordered, that the plaintiffs recover from the defendant the sum of $3800, with interest thereon at the rate of eight per cent, per annum from the second day of March, 1867, until paid, and the further sum of $3 75 cost of protest and all costs of this suit.

Rehearing refused.


source: Caselaw Access Project

author: Ludeling, C. J. Taliaferro, J., Wyly, J.,

license: Public Domain

text:
    No. 2508.
    The State of Louisiana, ex rel., S. Belden, Attorney General, v. Wm. Fagan, et al.
    "The State has tho right to restrain, by injunction, persons who have combined together for the avowed purpose of doing what is prohibited by law, and also to prevent such persons from interfering with her agents in the execution of the legislative will. And the At_ torney General of the State is the proper officer to institute proceedings against such persons.
    •Courts are not permitted to go behind an enrolled, duly authenticated and promulgated public statute to inquire into the motives which may have influenced the members of the General Assembly in enacting it. Therefore, evidence tending to establish bribery and corruption against the members of the General Assembly, which, is alleged, procured its passage, is not admissible.
    Article G6 of the Constitution provides that tho Governor shall return all bills which he does not approve, with his objections thereto, to the House in which they may have originated, in five days from the day of presentation, except where such return is prevented by an adjournment. In that case the Governor is required to return all such bills as he does not approve, on the first day of the next General Assembly. Held — That by this article of the Constitution, tho Governor has until the meeting of the next General Assembly to deliberate as to whether he will approve or disapprove any bill that has passed less than five days before adjournment, and in case he approves any bill thus situated, lie. may sign it at any time before the meeting of the next General Assembly, and .such act becomes a law from the moment he signifies his approval by affixing his signanature .thereto.

      In all matters of a purely legislative character, tlie Legislature is supreme, in all respects, except when restricted by the Constitution of the State, or the United States. As a legislative body, they form and constitute an independent, co-ordinate branch of the Government, and are in nowiso under the control or supervision of the judiciary department.
    Objections that the charter parties, in a charter granted by the State, have not completed the works within tho time specified in the law, can only be urged by tho State, in a suit by the State to have the charter forfeited. They can not be urged by third parties in a suit brought by the State to restrain them from interfering with her agents in the enforcement of the law.
    Tho designating of the place or places where the slaughtering of animals shall be done, and prohibiting their slaughter at other places, falls within the police powers of the State-Whatever the State can lawfully do itself, it can do through, tho agency of a corporation. Therefore, tho State, through the action of her Legislature, can make whatever police regulations may be necessary to preserve the public health, and can create, by the same authority, a corporation through which the police regulation prescribed by her may be enforced.
    The act of the Legislature of 1869, Uo. 118, entitled “An Act to create the Crescent City Live Stock and Slaughterhouse Company,” while it gives to said comjjany the exclusive right to keep a slaughter house, and also the exclusive control and supervision over the inspection of all animals slaughtered for market in the city of Uew Orleans, yet it does not prohibit or exclude any person from the business of purchasing or butchering live stock, and selling the meat in the markets of tho city. It only requires persons engaged in the business of slaughtering, etc., to comply with the police regulations prescribed by the law. Therefore, this act is not a violation of Article I, Section 2 of the bill of rights in the State Constitution, which provides that all persons shall enjoy the same civil, political and public rights and privileges. Nor is it in violation of the fourteenth amendment to the Constitution of the United States.
    The designation, in the act of 1869, No. 118, of the places or wharves at which all live stock shall be landed from steamboats, is not a regulation of commerce between the States, and is not, therefore, a violation of the laws or Constitution of tho United States. This provision of the law comes strictly within tho police powers of the State, and is therefore legal.
    from the Fifth District Court, parish of Orleans. Beaumont, J.

      8. Belden, r Attorney General, Randall Hunt., C. Rose-Mus, W. FL. Hunt and Joseph R. Uomor, for relators, appellees. Fellows & Mills, Campbell, Spofford (& Campbell and Cotton & Bevy, F. Bermudez and Cooley <& Fhilips, for defendants and appellants.
   Ludeling, C. J.

This suit is instituted by the Attorney General, in the name of the State of Louisiana, against the Live Stock Dealers’ and Butchers’Association of Now Orleans, to prevent the said pretended corporation from doing any of the acts, or executing any of the purposes, for which said corporation was organized, because the said acts and purposes are prohibited by tbe statute of tbe State of Louisiana, entitled An Act to protect tbe health of the city of New Orleans, to locate the Stock Landing and Slaughterhouses and to* incorporate the Crescent City Live Stock Landing and Slaughterhouse Company,” approved on the eighth of March, 1869. The defendants filed the exception of lis pendens. The plea was correctly overruled. The objects of the suits were not the same.

In their answer the defendants deny the right of the Attorney General to bring this suit] and they allege that the act of the Genera] Assembly, No. 118, of I8G9, is unconstitutional.

It is admitted that, for the purpose of erecting slaughter houses and establishing stock landings, etc., the defendants have leased, with the intention of ultimately purchasing of Charles Cavaroc, a tract of land situated within the territorial limits in which the act No. 118 prohibits every one, except the Crescent City Live Stock Landing and Slaughter House Company, from erecting slaughter houses and establishing stock landings, etc.

Article second of the act of incorporation, under which the defendants claim to act, declares that the object or purpose of the organization of the company is to do what the act No. 118 forbids.

The State has the right to restrain, by injunction, persons (who have-joined themselves together for the avowed purpose of doing what is prohibited by law), from carrying into effect their unlawful purposes,, and from interfering with her agents in the execution of the legislative will. And the Attorney General is expressly directed to institute proceedings to prevent persons from unlawfully acting as a corporation, by the first section of an act entitled “An Act providing a remedy against usurpation, intrusion into, or the unlawful holding or exercising a public office or franchise in this State.” Section one of act No. 58 of 1868, p. 71.

We are of opinion that the evidence offered to prove “deception, fraud, bribery, corruption,” etc., against the members of the General Assembly was correctly rejected by the district judge. The allegations were too vague and indefinite to admit of proof. See Rooks v. Williams, 13 An. 374; 12 An. 13 ; Lonaillier v. Castille, 14 An. 777 ; 9 An. 54 ; 7 An. 239, Landry v. Dickson.

The constitutionality of the act of eighth March, 1869, No. 118, is^ involved in the cases numbered 2504, 2505, 2506, 2507, 2508 and 2509, submitted to us; and as they, collectively, present for decision all the objections urged against the validity of the act, in upwards of two-hundred cases now pending in the district courts of the parish of Orleans, and as there is a written consent to that effect, we will proceed to pass upon the questions presented in the several records, as if they were in one case.

The act No. 118 is said to be unconstitutional, for the following-reasons :

First — Because it is “an act for the emolument of private individuals,” and that “certain persons, supposed to bo combining and conspiring together for the purpose of unlawful gain, and with the specious, but false, pretense of protecting the health of the city of New Orleans, did, by deception, fraud, bribery, corruption and unlawful means, procure the passage of an act through the Legislature of the State of Louisiana,” entitled “An Act for the protection of the health of the city of New Orleans,” etc.

It is unnecessary to decide whether a private statute of the General Assembly may be impeached for fraud in the grantees, for we are of opinion that the act No. 118 is not a private act. ■ There isa material difference between public and private statutes, and the books abound with cases explaining this distinction in its application to particular statutes. It is sometimes difficult to draw; the line between a public and private act. Generally speaking, statutes are public, and a private statute may rather be considered as an exception to a general rule. It operates upon particular individuals, or upon private persons. It is said not to bind or include strangers in interest to its provisions, and they are not bound to take notice of a private act, even though there be no general saving clause of the rights of third persons. This Is a safe and just rule of construction, and it was adopted by the English courts in very early times, and docs great credit to their liberality and spirit of justice.” It is supported by the opinion of Sir Matthew Hale, in Lucy v. Livingston, 1 Kent., p. 459. “ Private statutes are placed under another limitation. The courts of justice are bound, ex officio, to take notice of public acts without their being pleaded, for they are part of the general law of the land, which all persons, and particularly judges, are presumed to know; but they are not bound to take notice of private acts, unless they be specially pleaded, and shown in proof, by the party claiming the effect of them.” 1 Kent., p. 460. The act No. 118 was passed in the interest of the public, its provisions are general, and are binding upon all persons, and, therefore, it is a public statute.

And we are of opinion that courts are without warrant in law to go behind an enrolled and duly authenticated and promulgated public statute to inquire into the motives which may have influenced or actuated the members of the General Assembly in enacting laws. Otherwise, the legislative department would cease to be a co-ordinate branch of the government. It would be completely subordinate to the judicial department. Fletcher v. Peck, 6 Cranch, 87 ; 8 Indiana Rep. 298, Wright v. Defrees; 7 An. Law Reg. 158, Sunbury and Erie Railroad Company v. Cooper.

Second — The bill was signed after the Legislature had adjourned. Does the constitution prohibit this ? Article 66 provides that every bill, which shall have passed both Houses, shall be presented to the Governor. If he approve, he shall sign it; if he do not, he shall return it, with his objections, to the House in which it originated. If the bill shall not be returned by the Governor within Jive days after it shall have been x>resented to him, it shall be a law in like manner as if he had signed it, unless the Legislature, by adjournment, prevent its return, in which case the bill shall be returned on the first day of the meeting of the General Assembly after the expiration of said five days, or be a law.”

The Governor shall sign the bill, if he approve; if he do not, he shall return it to the branch of the Legislature in which it originated. It is only when he' disapprove, that he is required to return the bill to the Legislature. When the General Assembly is in session, he i» allowed five days in which to determino whether he will sign the bill or veto it. If the General Assembly adjourn before the expiration of the five days, he is then allowed until the first day of the next General Assembly in which to decide whether he will veto or approve the bill. We have already seen that article 66 directs that if the Governor approve, he shall sign the bill. We can not believe that this delay was given to the Governor simply to enable him to examine the lav/ for the purpose of disapproving; on the contrary, we believe that the time was granted for the same purposes for which the five days were allowed him during the session of the Legislature, that is, to judge and determine whether he will sign the bill or veto it.

The constitution of California contains this clause, “if a bill shall not be returned by the Governor within ten days, Sundays excepted, the same shall be a law in like manner as if he had signed it, unless the Legislature, by adjournment, prevent such return.” And it is contended that the article in the constitution of California, and New York also, is more favorable to the exercise of the right of the Governor to sign a bill, after the adjournment of the Legislature, than article 66 in our own constitution. We do not concur in that view. Those constitutions do not, in terms, expressly or impliedly, confer the right to sign a bill after the adjournment of the Legislature; and in the Twenty-first New York Reports the court held that the Governor coulcl sign bills after the adjournment of the Legislature, because the constitution did not expressly or impliedly prohibit such an act. The court in California decided that the Governor could not legally sign a bill after the adjournment of the Legislature. We are inclined to the opinion that the New York decision is based upon sound principles and legal reasoning.

But under the constitution of Louisiana, the right may be exercised not only because it is not prohibted, but because the right is delegated in the constitution itself, as we have already stated.

But it is contended that the signing of bills by the Governor is a legislative act, and is “ positively prohibited in arfciclo 39 of the constitution, after the expiration of sixty days.” The article declares “the members of the General Assembly shall receive from the public treasury a compensation, etc. * * * No session shall extend beyond the period of sixty days, to date from its commencement; and any legislative action had after the expiration of said period of sixty days shall be null and void; but the first General Assembly that shall convene after the adoption of this constitution, may continue in session for one hundred and twenty days.” It is evident that the terms “ legislative action,” used in this article, refer to the action of the General' Assembly. But if there were any doubt about this, article 66 of the. constitution would explain tlie ambiguity, for it is expressly declared that the Governor shall, in a certain contingency, return the bill with his objections, to the House in which it originated, on the first day of the next General Assembly.

It is as much a “legislative action” to disapprove a bill, and assign reasons therefor, as to sign it.

A considerable portion of the elaborate brief of the counsel for ■defendants is devoted to combating the correctness of the views oí this court relating to the powers of State Legislatures. After a careful examination of the question, we see no good reason for changing the •opinionexpressed by us in the case of the State v. Volkman, “that the Legislature, in its sphere, is supreme in all respects, save when restricted by the constitution of the State or the United States; ” and which was often enunciated by our predecessors. 9 R. 411; 9 An. 562; 11 An. 308, 338, 370; 12 An. 169, 554.

The accepted theory seems to be this: In every sovereign State there resides an absolute and uncontrolled power of legislation. In 'Great Britain this complete power rests in the Parliament; in the American States, it resides in the people themselves, as an organized body politic. But the people, by creating the constitution of the United States, have delegated this power, as to certain subjects, and under certain restrictions, to the Congress of the United States, and that portion they can not resume, except as it may be done through •amendment of the national constitution.

For the exercise of the legislative power, subject to this limitation, they create, by their State constitution, a legislative department, upon which they confer it; and, granting it in general terms, they must be understood to grant the whole legislative power which they possessed, except so far as at the same time they saw fit to impose restrictions. Cooley’s Constitutional Limitations, 87. Mr. Chancellor Kent said: “The principle in the English Government that the Parliament is omnipotent, does not prevail in the United States; though, if there be no constitutional objection to a statute, it is, with us, as absolute and uncontrollable as laws flowing from the sovereign power under any other form of government.” I Kent, 448; 16 Georgia Report, 113.

We believe the rule, stare' decisis, should control us in questions of this kind. “ Misera est servittts ubi jus est vagum aut incertum.”

Third and, fourth — The objection, that the works were not completed within the time specified in the law, and that the charter of the Crescent City Live Stock and Slaughterhouse Company was forfeited by the failure, can not be urged by the defendants. The State alone had the right to have the charter forfeited. In the petition of the State, it is admitted that the works were completed; and we think the evidence in the record justified the admission.

Fifth — It is urged that the act is violative of the bill of rights, incorporated in the constitution of this State in 1868, and the fourteenth constitutional amendment of the United States, because it deprives “ one class of citizens of certain rights of property and freedom of action, not for the good of the community, but for the private gain of other individuals in the community.”

This proposition assumes that one class of persons is deprived of certain rights of property for the private gain of individuals.

This assumption is unwarranted by the record and contemporaneous history. The facts which necessitated the passage of the act No. 118, or some similar law, were succinctly stated in the oral argument of the distinguished counsel who closed the discussion. “ When this city was under the government of the Cabildo, and afterwards, under the government of the charter of 1804, the population was comparatively small — only a few thousand inhabitants. Yet they found it necessary to regulate the slaughtering of animals whose meat was intended to be sold in the market of the city, and a place was assigned for the purpose at or below the point where the Slaughterhouse is established at this time by the act of the Legislature. * * * Things continued under this regulation for a long time ; but our population increased, and as the Americans came in more vigor was exhibited in the government of the State and city. The population, at first, chiefly settled and concentrated in what is now the lower part of the city. * * *

“The butchers, who had been carrying on their business quite conveniently from the opposite side of the river, below the city, began to find the situation inconvenient. * * * They determined to move to the upper part of the city and to slaughter there the animals whose meat they sold; and this they did, to the annoyance and injury of the public. After the lapse of some time a series of municipal ordinances were passed upon this subject. They were entitled, Ordinances for the protection of the health of the city and to guard against public nuisances.’ They provided that no beef should be slaughtered except in slaughterhouses, and that the head and entrails, the offill and other refuse parts of the animals, etc., should be taken away and thrown into the river, at a point below the city. * * * Population and business continued to increase, and move upwards, and the butchers again found it convenient and advantageous to move up. They went, as the enactments show, to the City of Jefferson, where they have landed their cattle on the banks of the river, put and kept up pens, slaughtered animals, throwing the offal, etc., into the river, and established and kept up a constant source of nuisance and annoyance to the community, injurious and dangerous to the health, the limbs and lives of the citizens. * * * Two or three hundred beeves, arriving almost daily, for the purpose of being slaughtered for the New Orleans market, were landed at the foot of Louisiana avenue. Persons passing along the levee and the streets adjoining the landing, in a densely populated part of the town — watching invariably with fear or anxiety — were continually inconvenienced by these untamed animals, sometimes breaking loose and rushing wildly and madly through the streets, endangering the limbs and the lives of men, women and children.”

Grand juries reported against this state of things as a public nuisance and called upon the Municipal Council of New Orleans to exercise its police powers and correct the evil, and the Council did pass ordinances for that purpose.

In 1866, the grand jury of this city presented to the district court this important subject. They stated that: “In consideration of the prevalence of cholera and other diseases in our midst, the grand jury makes a special report upon the impurity of the water taken from the river, and supplied by pipes to the city, caused by throwing offal, refuse from slaughterhouses, etc., into the river, above the Water Works Company, at the foot of Richard street. The superintendent, of the water works states that the suction pipes of the river occasionally become clogged by such matter being drawn into them, requiring constant attention to keep their orifices clear. Two largo vessels lie at the wharves, immediately above and in front of the-suction pipes, and act as fenders to guide the floating offal, etc., out into the current. When they have been loaded and gone, the collection of effete matter will naturally increase, as in an eddy. How many slaughterhouses exist above the works, I can not say, but their entire removal to the lower part of the city would be a public benefit-A petition signed by more than five hundred of our most prominent citizens for such removal of slaughterhouses was addressed to the Council last spring, and reported upon favorably by the Committee on Police and Health of the lower board, June 12,1866; but the resolution submitted by them failed to become a law, and the city passed, on the thirty-first of July, 1866, an ordinance, No. 233, N. S., authorizing the erection of slaughterhouses in the Fourth District, although, under the health ordinance (section 26), they are expressly forbidden. Every diligence is exercised now to keep the suction pipes clear from all effete substances, and after the water is pumped into the reservoir, a laborer is engaged throughout the day in skimming the scum which forms upon the surface. * * * * Many persons of this city (especially the poorer classes, amongst whom most of the deaths of cholera have lately taken place), use the hydrant water for drinking and other purposes. * * * We recommend that the city authorities should take this matter into immediate' consideration, and that, besides adopting requisite ordinances, they should petition to the Legislature to pass an act that there should not be allowed to exist any slaughterhouses, or similar places, above the city within a specified number of miles. Wo consider such an act of legislation necessary, because should the city authorities cause the removal of such establishments from the upper portion of the city, they could be re-established barely above the city limits, and would be as great nuisances then and as now.”

In the year 1867, the State Legislature passed an act entitled “ An Act to prevent offal and nuisances from being thrown in the Mississippi river, within the limits of the cities of New Orleans and Jefferson.” And to enforce obedience to this command, the act declared that no ordinance of either Council should have force until that ordered by this act should be passed — but this law was disregarded.

Again, from the journal of the House of Representatives, of 1868, it appears that the following bill was brought in: “An Act to protect the health of the city of New Orleans and the town of Algiers,” etc. It was read and referred to a committee, who reported, “from personal and careful observation,” “from the opinions of persons thoroughly competent to judge on the question,” as well as “from a petition signed by eleven hundred respectable property holders of New Orleans, urging the removal of the foul nuisance,” that “ the immense quantity of filth and offal which is accumulated at and in the vicinity of the stock landing,” “goes into the Mississippi river, which, if not prejudicial to health, is certainly very revolting. The immense suction pipe of the New Orleans water works is immediately below, and sucks-in objects floating on the water, at a distance of fifty or sixty feet. When the river is low, it is not uncommon to see intestines and portions of putrified animal matter lodged immediately around the pipes. The-liquid portion of this putrified matter is sucked into the reservoir. Vessels arriving here with cattle, especially those that have been in a storm, invariably throw the dead cattle — of which they often have many — into the river at the stock landing. These are again taken, from the river and subjected to the process of skinning, after which the carcass is again thrown into the river. It is not unusual, during the sultry heat of summer months, to see those floating objects about, the shipping, no doubt causing disease among the sailors on board these vessels. There is not the slightest doubt in the minds of your committee that this must be extremely prejudicial to the health of New Orleans.”

To this report is appended a certificate from the President of the Board of Health, J. S. Smith, Dr. Choppin and J. T. Pennington corroborating the conclusions of the committee, and recommending the removal of the stock yards, landings, sale stables and slaughterhouses below the city.

With these historical facts before us, we are not at liberty to presume-that the General Assembly were guilty of falsehood and deceit when they declared in the title to the act in question, that the object of the law was “ to protect the health of the city of New Orleans,” etc. It can not be seriously questioned that the General Assembly possessed the power to legislate upon the subject; it comes clearly within the.police powers of a State. We have seen, that, in the opinion of grand juries, of private citizens and of legislators, the location of the stock landing and slaughterhouses in the city was injurious to the health, comfort and safety of the inhabitants, and-•demanded legislative action.

Does the act of 1809 cease to be a police regulation because it locates the stock landing and slaughterhouses elsewhere, and creates a corporation as a means to carry out the legislative will ?

We think not. The members the General Assembly were the sole judges as to the instruments by which they should enforce their police regulations. “ What the State can do itself, it can do through a corporation.” 11 An. 371.

To protect the health of the city of New Orleans, the Legislature provided that, from and after the first day of Juhe, 1809, it shall not be lawful to land, keep or slaughter any cattle, beeves, calves, sheep, swine, or other animals, of to have, keep or establish any stock landing, yards, pens or slaughterhouses, at any point or place within the •city of New Orleans, o.r the parishes of Orleans, Jefferson and St. Bernard, or at any point or place On the east bank of the Mississippi river, within the corporate limits of the city of New Orleans, or at any point on the west bank of the Mississippi river, above the present depot of the New Orleans, Opelousas and Great Western Railroad •Company, except that the Crescent City Live Stock Landing and Slaughterhouse Company may establish themselves at any point or place hereinafter provided. The corporation is then created, with certain privileges and obligations. The company is required to build, at its own expense, a grand slaughterhouse or abattoir, of Sufficient •capacity to accommodate all butchers, and in which to slaughter five hundred animals per day; also a sufficient number of sheds and stables to accommodate all the stock received at this port; all of which was to be completed by the first of June, 1869. They were also authorized to build landing places for stock, etc.

Having prohibited the slaughtering of animals, and the landing of stock, within the limits where such business had been conducted, it was eminently proper that the General Assembly should provide places with suitable conveniences for the butchers and dealers in live stock to carry on their business, without interruption. This the Legislature did, through the agency of a corporation.

The statute in question requires the Governor to appoint a competent person as inspector, whose duty it is to examine all animals intended, to be slaughtered, to ascertain if they be sound and fit for human food. It seems to us that the establishment of one grand abattoir would greatly facilitate the inspection of animals, and the attainment of the objects contemplated by the law. It is not an unreasonable presumption that the General Assembly exercised their power wisely. At all events, it was the exercise of a discretion vested in them, and we, as judges, can not arrogate to ourselves the right to correct their errors, in matters within their control.

“ The police powers affect the use and enjoyment of property. It is much easier to perceive and realize the existence and sources of this power than to mark its boundaries, or prescribe limits to its exercise. It extends to the protection of the lives, limbs, health, comfort and quiet of all persons, and the protection of all property within the State, etc. By this general police power of the State, persons and property are subject to all kinds of restraints and burdens, in order to secure the general comfort, health and prosperity of the State, and of the perfect right of the State to do which no question ever was, or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned.” 2 Kent, 432.

We are gravely told that this act infringes the liberty of the citizen and the freedom of the use of property, and that, therefore, it is a violation of the bill of rights in the constitution of the State of Louisiana, as well as of the fourteenth amendment of the constitution of the United States!

We think that is a fallacy. Liberty is the right to do what the law permits. Freedom does not preclude the idea of subjection.” On the contrary, it presupposes the existence of some legislative provision, the observance of which insures freedom to one, by securing the jike observance from others. But the act of eighth of March, 1869, does not prevent butchers from following their trade; every one who wishes may butcher, subject only to the regulations of the law. There is nothing unconstitutional in that. In the case of Morand v. Mayor et al., 2 La. 218, the district court charged the jury that the city had the right to prevent the sale of sound oysters by individuals on their private property. To this opinion the plaintiff took a bill of exceptions. Judge Martin, who was the organ of the court, said: It appears to us the district court did not err. The City Council has the power to establish markets, and to provide for the cleanliness and salubrity of the city. In establishing markets, they designate certain spots or places for the sale of certain articles of provisions ; in doing so * * * they facilitate the inspection of provisions; and by hiring the stalls they raise money to defray the expenses of building market houses, and pay the salaries of officers they appoint to prevent the sale of unsound provisions. * * * It appears they have established several stands on the levee for the sale of oysters, and they farm, out these stands. The ordinance prevents the keeping of heaps of oysters elsewhere than in these stands. In this case the salubrity ef the city seems to have been considered by the Council.”

But it is said that the Crescent City Live Stock Landing and Slaughterhouse Company alone can keep a slaughterhouse within the limits designated. That is true.

But, there are, unquestionably, cases in which the State may grant to specified individuals, privileges, without violating any constitutional principle, because, from the very nature of the case, it is impossible that they be possessed and enjoyed by all; and if it be important that they should exist, the proper State authority must be left to select the grantees. Cooley’s Constitutional Limitations.

This right has often been recognized by this court. 15 La. 413, New Orleans and Pontchartrain Company v. Orleans Navigation Company ; 10 An. 741 ; 11 An. 256 : 3 An. 639 ; 9 R. 411.

Sixth — It is contended that the act is unconstitutional because it prescribes that cattle, horses, etc., shall be landed at a particular part of the bank of the Mississippi river, and that the owners shall pay for the facilities afforded them in the wharves erected there, and that the act of Congress of the eighth of April, 1812, by which the Mississippi river, etc., is declared to be a common highway, free from imposts, tolls, etc., and article 446 of our Civil Code, conferred the right on every one to land and unload his vessels on its banks without charge.

This question is not a new one. It has been repeatedly decided both by this court and by the Supreme Court of the United States adversely to the views of the defendants. In Gibbon v. Ogden, 9 Wheaton 1, Chief Justice Marshall said: “ The inspection law, quarantine laws, health laws of every description, laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, etc., are not in the exercise of a power to regulate commerce, within the language of the Constitution.” In the case of the owners of brig James Gray v. Owners of ship John Fraser et al., Chief Justice Taney said: “ The local authorities have a right to prescribe at what wharf a vessel may he and how long she may remain there, where she may unload or take on board particular cargoes, where she may anchor in the harbor, and for what time, and what description of light she shall display at night to warn the passing vessels of her position, and that she is at anchor and not under sail. * ■* <t> « • * *

“And there is nothing in the regulations referred to in the port of Charleston which is in conflict with any law of Congress regulating commerce, or with the general admiralty jurisdiction conferred on the courts of the United States.” 21 Howard 187; 11 Peters 143; Worsley et al. v. The Second Municipality of New Orleans, 9 Rob. 332; 11 M. 323.

After an earnest and. careful examination of all the objections urged against the validity of the act of the General Assembly passed in 1869, and numbered 118, we have come to the conclusion that the law is not obnoxious to any constitutional objection. We need hardly add that acts of the General Assembly are not only presumed to be constitutional, but that the authority of courts to declare them void will never be resorted to, except in a clear and urgent case, one which requires no nice critical acumen to decide on its character, but which is obvious to the comprehension of any person. 21 An. 694; 6 Cranch, 126; Fletcher v. Peck ; 12 Wheaton, 270, Ogden v. Saunders.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be affirmed, with costs of appeal.

I concur in the decree pronounced in this case.

W. W. HOWE.

Taliaferro, J.,

concurring. There is no express provision of the constitution, national or State, prohibiting the Legislature from conferring exclusive privileges upon a corporation. The inhibition is sought for in the bill of rights introduced into the constitution of Louisiana. In title one, article two, of the constitution of 1868, it is declared that the citizens of this State shall enjoy the same civil, political and public rights and privileges, and be subject to the same pains and penalties.” As an abstract general proposition, this is true. But in contemplating this proposition, we should not lose sight of the fundamental principle forming the basis upon which constitutions themselves rest. This controlling principle, when brought into action, often modifies and limits the proposition which asserts a constant, unlimited and perfect equality of rights and privileges. What is this paramount principle ? It is that the will of the people is the source, and the happiness of the people the object, of all legitimate government. As a corollary, it follows that the general welfare should be provided for, even by the sacrifice of that of an individual, if circumstances require it. Each individual, on entering into a society to be governed by laws, yields a part of his natural liberty to secure the remainder, and consents to postpone his own rights when they become antagonistic to those of the great body of the community to which he belongs. The law of expropriation is an example of the working of this principle. The partition of the shore of the Mississippi river, in front of New Orleans, and the appropriation of each portion to a distinct class of vessels and water crafts, is an infringement of that part of our State constitution just referred to, and of the recognition in article four hundred and forty-six of the Civil Code, of the right of every one freely to land his vessel anywhere on the shores of the river. Tlie abstract equal right of the stearuboatman or raftsman to laud his steamboat or raft within the district assigned to steamships is violated by the monopoly given of that portion of the shore to owners and navigators of steamships. The sacrifice of the individual right in this case is of no consequence, in view of the general benefit and commerce of a great commercial community; yet it is an infringement of that abstract equal right declared in our State constitution.

The doctrine, then, is elementary and well established, that in the public interest and for the public good, legislation which postpones the interests of a few to that of a whole community, is legitimate and proper. The law under consideration, known as the Slaughter House act, I consider a public statute and enacted for the public weal. It relates to an object of the very highest importance — the health of the people. It prescribes sanitary regulations, which the Legislature thought proper to adopt. With the policy or impolicy of these regulations the judicial department has nothing to do. It will not consider the propriety or expediency of the measures resorted to by the law maker. If, in the adoption of means deemed appropriate for carrying out the objects of the law, it was thought advisable to incorporate a company with certain privileges, and the privileges thus conferred affect adversely the interests of a few, that is no ground for declaring the law unconstitutional and void.

Wyly, J.,

dissenting. I can not concur in the opinion of the majority of the court on the question of monopoly presented in these cases.

Under the previous constitutions of this State, an act could have but one object, and that had to be embraced in its title; but under the constitution of 1808, organizing the Legislature which adopted the act of the eighth March, 1869, (act No. 118), now under consideration, a statute may embrace distinct or different laws, provided only that the objects thereof be contained in the title. In other words, legislation on different subjects may be embraced in one act, provided the title contains its several objects. The act before us, entitled “ An Act to protect the health of the city of New Orleans, to locate Slaughter Houses, and to incorporate the Crescent City Live Stock Landing and Slaughterhouse Company,” in my opinion, contains both a public law and a private statute; a public law, in so far as it seeks to protect the health of the city of New Orleans, by requiring the landing and slaughtering of animals below the city, and prohibiting it above; a, private statute, in that it incorporates the u Crescent City Live Stock Landing and Slaughterhouse Company,” and gives to it certain sole and exclusive rights and privileges for a certain period. As to the former object, the act is an exercise of police power, and that far, a public law; as to the latter, it is merely a contract between the State and the- juridical person it creates, “ the Crescent City Live Stock Landing and Slaughterhouse Company.” My objection is to that part of the act which is clearly a private statute, wherein a monopoly is-given not necessary to the public health, abridging the freedom of trade and labor, for the gain of a private corporation.

While the Legislature had the right to change the place of landing; and slaughtering of animals from the place where it has heretofore been conducted to a locality elsewhere not deleterious to public health and safety; while for sanitary reasons, it had the right to-compel the butchers to abandon the locality where their slaughterhouses are situated and to conduct their occupations at another locality less deleterious, imposing this limitation upon their natural rights for the public good, justifiable only by the necessity, it had not the-right to create this monopoly in favor of the Slaughterhouse Company, giving to it for twenty-five years the sole and exclusive right and privilege to keep stock landings and slaughterhouses in the parishes of Orleans, St. Bernard and Jefferson, embracing at least half the population of the State. It had no right to place unnecessary restrictions upon labor, to compel the numerous persons pursuing the occupation of butchers to repair to the premises of the Slaughterhouse' Company and there pay tribute to it for the privilege of pursuing their usual occupation or earning their living.

As the public health required another location for the purpose oj slaughtering animals for market, the act to that extent was law, but where it creates the monopoly, where it imposes upon labor a restriction not necessary, where it compels a large class of the citizens to pursue their occupations only in the premises of the Slaughterhouse: Company, and to pay to it a contribution, it is, in my opinion, a measure not necessary to protect the public health of the city of New Orleans, it is not a legitimate exercise of police power and it is a-, flagrant violation of the bill of rights contained in the constitution.

If the butchers had built their slaughterhouses below the city Instead of above it, and were there pursuing their occupation, there-would have been no necessity for the act, at least for sanitary reasons -; there would have been no necessity to make the application of police-power or to place the limitation upon the occupation of those citizens. Now if the public health requires these slaughterhouses to be below the city instead of above it, a law to accomplish onty this object would be a legitimate exercise of police power. Whatever legislation is necessary for the public health must be endured by these citizens, however detrimental to their individual interests, but legislation beyond this legitimate purpose, imposing restrictions upon their occupations in favor of a pn'ivato corporation, violates their civil rights, their liberty, their property, and their pursuit of happiness, to secure: which the government was instituted.

The slaughtering of animals, and preparing the meat thereof for market, is an ancient occupation in this commonwealth, many citizens earning their living by pursuing this art or business; it is a lawful business, and one which can not be restrained, except so far as public safety, health or necessity may require. The inherent right of the citizen to this occupation, as to all others that are lawful, can only be infringed upon or restricted in so far as public necessity may demand, and no further. Under the bill of rights incorporated in our constitution, all men are free and equal; “they shall enjoy the same civil, political and public rights and privileges, and be subject to the same pains and penalties,” Under this private statute the juridical person created by it is endowed with greater rights and privileges than other persons in the pursuit of this ancient occupation, and is not subject to the same restrictions, pains and penalties ” as are imposed upon other persons pursuing the business of butchers.

If it does not endanger the public health for the Slaughterhouse Company to carry on the business of butchers in the localities prescribed in the act, how would it endanger the public health for other persons, in the same localities, to pursue, independently, the same avocation ? Can we say the private statute before us does not violate the bill of rights in the constitution, where it gives to a juridical person created by it, greater rights and privileges in the pursuit of an ancient occupation than it does to other persons, and where, under pains and penalties,” it prohibits a large class of persons within the limits of three parishes, embracing- half the population of the State, from the slaughtering of animals, which is their occupation, unless they do so at the slaughterhouse of this private corporation, and pay to it a contribution for each animal they may slaughter ? Can we say there is equality before the law, where the many are forced to serve the few — where labor is forced to pay tribute to this gigantic monopoly ?

But 'it is said that, as the Legislature had the right, for sanitary-reasons, to confine the business of slaughtering animals to certain limits, or inasmuch as they can protect the public health by the exercise of police power, they are the sole judges of the means to accomplish the object, they are the sole judges of the legitimate exercise of their police power.

As a means of public health, they can undoubtedly prohibit the exercise of a lawful occupation in certain localities, and designate others in which it may be pursued; but under the pretext of accomplishing an object coming under the exercise of police power, they can not accomplish another object not coming strictly under that power infringing upon the rights of the people guaranteed by the constitution.

They can not accomplish an unconstitutional purpose; they can not give validity to an unconstitutional private statute by embracing it in an act containing a legitimate object and a valid public law. An uuconstiutional law is the same, whether it stands alone in a separate act, or whether it is is embraced in the same statute with another law which is valid and constitutional.

In the statute before us I see two separate and distinct objects and two separate and distinct enactments ; one which is right and constitutional, and one which is wrong and unconstitutional. The creation of this monopoly is in no manner necessary to promote the public health. That object would be accomplished without it, just as well as with it. All the public health required was that the slaughtering and landing of animals should be prohibited above the city and permitted below it. The moment the business was prohibited above, and a locality designated below, public necessity ceased to have further demands in the premises. The right to impose this monopoly can not be successfully maintained upon sanitary grounds, for it was not a measure necessary to protect the public bealtb.

But it is said, as to police power, whether exercised right or wrong, the Legislature alone can decide; that the courts can not interfere with them in the application of that power

To my mind the police power, like all other powers confided to the Legislature, is not unlimited; that may be abused as other powers are sometimes abused. The Legislature can no more be the sole and exclusive judge of the extent of its police power than it can he of the extent of the other powers of legislation delegated to it by the people, in whom the sovereignty is invested. If the legislators were the sole and exclusive judges of the extent of their powers, their will would be omnipotent, there being no difference between the possession of all power, and being the sole and exclusive judge of the amount of power one believes himself entitled to exercise.

The judicial department was intended to protect the constitutional rights of the people, whether assailed by an enactment springing from the wrongful exercise of the police power or any other power. If the constitution has been violated, as I think, in creating this monopoly to that extent, the act before ns is not law, and it is not only the right but the duty of the court so to declare.

The citizen has no greater property than the freedom of trade and labor ; it can not be taken for private purposes, but only under public necessities and for public uses.

“The Legislature has not, by the right of eminent domain, the right to take the property of a person to give to another, not even in police regulations.” 3 Paige Chan. N. Y. Rep, 159; 8 Wendell 85.

“ The Legislature is not the sovereignty of the State, hut only one of the organs of the sovereignty, and a restricted organ in regard to all matters prescribed by the constitution. ■■ It is prohibited to the government, even in its sovereign capacity, to take private property, except for public use. * * * But happily for us, the Legislature is not the creator or the judge of its own powers, but it is the creature of the constitution, and all its acts must be submitted to it.” 18 Wendell, N. Y., 56, 61, 63.

I think the vast array of authorities, both English and American, presented with such consummate ability by the counsel in behalf of the Butchers’ Benevolent Association, fully maintains the view I have taken of the subject of monopoly presented-in these cases, and I, therefore, feel constrained to dissent from the opinion of the majority of the court

Rehearing refused.

Mr. Justice I-Iowell, absent.

Note. — This case is now pending on a writ of error to the Supreme Court of the- United States, at Washington, granted by Mr. Justice Bradley, of that tribunal, on application of defendants, on the question of the validity of the aet incorporating the Crescent City Live Stock and Slaughterhouse Company, under the fourteenth amendment to the Constitution of the United States.


author: Taliaferro, J.

text:
    No. 2744.
    State of Louisiana v. Nathan Schwab.
    In caso of a suspension from' office of the sheriff, by the district judge, for alleged neglect of duty, if the next Legislature, to whom the report of the suspension has been made, in accordance with the provisions of act Ho. 123, approved September 14,1868, fails to take, any action thereon before adjournment, the sheriff is entitled to resume his office again, the same as if the suspensation had not taken place.
    APPEAL from the Second Judicial District Court, parish of Jeffer-Ol son. Pardee, J.

      Z. McKay, district attorney, for appellee. Preston & Labatt and Alexander Wallcer, for defendant and appellant.
   Taliaferro, J.

This is an appeal from a judgment rendered upon a rule taken by the district attorney upon the sheriff of the parish of Jefferson, by which the judge a quo suspended the sheriff from his office on the grounds :

First — That he neglected his duty as sheriff in failing to arrest a party against whom a bill of indictment had been found for shooting’ with intent to kill one Hugh Brown, of the said parish of Jefferson.

Second — For failing to make his return, under oath, as required by the third section of an act of the Legislature, numbered 123, approved on the twenty-ninth of September, 1868.

By the provisions of that act, charges of the kind brought against the defendant, which authorizes, in the cases mentioned, the suspension from office of a sheriff, it is made the dutv of a district or parish-judge, upon the facts being made known to them by the district attorney of the district, to suspend from office such delinquent sheriff and thereupon to forward to the Governor of the State a copy of the proceedings and order of suspension to be by him laid before the Legislature at its next session for their action in either reinstating the officer or dismissing him permanently from office.

■ This suspension in the case of the defendant occurred in July, 1869, and the proper report was made to the Legislature at its late session. The session has terminated without the action of that body being taken in the case, and we infer that no proceeding having been had’in the premises by the Legislature, which by law, has jurisdiction of matters of the sort, the decree of the court suspending the defendant is virtually annulled and that he is entitled to resume the functions of his office.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that the defendant, Nathan Schwab, be reinstated in his office of sheriff of the parish of Jefferson, and that he be allowed to discharge the duties thereof according to law


author: Howe, J.

text:
    No. 2766.
    State of Louisiana, ex rel. A. Kearny, v. The Clerk of the Seventh District Court, Parish of Orleans.
    A defendant who has taken, a suspensive appeal from a judgment against him, and given bond, is not required to pay to the clerk of the lower court his fees for preparing the transcript before he can require tho latter to deliver it. In such a case, the clerk who refuses will, on application to the Supreme Court, be compelled by mandamus to deliver the transcript-, and pay the costs of the writ.
    APPLICATION for Writ of Mandamus.

      George L. Bright, for relator. Hornor & Benedict, for A. D. Bernondy, clerk, respondent.
   Howe, J.

The question presented in this case is, whether a defendant, who has given a bond for a suspensive appeal, must pay the clerk of tho lower court his fees for preparing the transcript before he can require the latter to deliver it.

'The clerk who refuses to deliver the transcript, cites as authority the cases of State v. Behrens, 17 An. 67, and State v. Phelps, 6 R. 308, hut we do not find them in point. In both those cases, as will appear, in the former by the report, and in the latter by the records of tho court, it was the plaintiff who appealed, and it was correctly decided that the fact that lie had furnished an appeal bond did not dispense him from the further obligation imposed by law of furnishing to the clerk of the lower court security for eventual costs. But there is no obligation imposed on a defendant to furnish the clerk with preliminary security. And still less do we find any requirement that a defendant, should pay the fees demanded in this case.

In the nnreported case of State v. Scully (Opinion Book No. 25, 122) a decision entirely in point, since the clerk in that case withheld the transcript, in order to coerce the payment of his costs, the court said:

“The article 585 of the Code of the Practice provides that, after the appeal has been allowed, and the security given, the clerk of the court from whose judgment the appeal is taken shall make a transcript of all the proceedings, as well as of all documents filed in the suit, and annex to the same the petition of appeal, in order that the same may be delivered to the appellant when demanded. The prerequisite of a bond, with surety, contemplated by this article, has been complied with. There are other statutory provisions which give clerks of court prompt remedies for the collection of costs, but we are aware of none authorizing them to coerce payment by the mode the clerk has adopted in the present case.”

Being of opinion that the applicant is entitled to the relief prayed for, it is ordered that the mandamus heretofore issued herein be made peremptory, and that the respondent deliver forthwith to the relator the transcript of appeal mentioned in the petition, and that the respondent pay the costs of this proceeding.


author: Taliaeerro, J.

text:
    No. 2524.
    The State of Louisiana v. Valsin A. Fournet et al.
    An appeal taken "by the State in a criminal case will be dismissed for want of jurisdiction, if the accused has not been sentenced with tlio penalty of death, nor imprisonment at hard labor, and a fine exceeding three hundred dollars has not been actually imposed. Constitution, Art. 74.
    APPEAL from the First District Court of New Orleans. Abell, J.

      8. Belden, Attorney General, for the State. A. SIL Voorldes and F. Fuselier, for defendants and appellees.
   Taliaeerro, J.

The defendants being indicted for manslaughter moved to quash the indictment, on the ground that the court was without jurisdiction. The motion was sustained, the indictment quashed and the accused discharged,

From this ruling of the court a qua the State appeals.

A motion to dismiss the appeal is made, on the ground that this court has not jurisdiction of the case.

The motion must prevail. It is provided by article 74 of the constitution of 1868 that the jurisdiction of the court shall extend, “in criminal cases, to questions of law only, whenever the punishment of death, or imprisonment at hard labor, or a fine exceeding three hundred dollars, is actually imposed.”

It is therefore ordered that this appeal be dismissed.


author: IIowe, J.

text:
    No. 2886.
    The State of Louisiana, ex rel. The Pontchartrain Railroad Company, v. The Judge of the Seventh District Court.
    Article 83 of tho constitution gives to tho Legislature express and plenary power to create as many district courts in the parish of Orleans as the public interests may require. Under this general power, the Legislature has the undoubted power to control the organization and jurisdiction of the several district courts which it finds it necessary to establish. The latter* clause in this article of the constitution, which creates seven district courts for the parish of Orleans, and defines the jurisdiction of each court, is provisional only, and to last till otherwise provided. Therefore, the act Eo. 2, approved March 16,1870, which creates tho Eighth District Court, and defines its jurisdiction, is not in conflict with this provision of tho constitution, because it divests some of tho other district courts, created by the constitution of a portion of tho jurisdiction granted. to them by this article.
    Section three of this act, creating the Eighth District Court for the parish of Orleans, gives-, to this court exclusivo jurisdiction to entertain all injunction suits. Section four requires-the judges of all the other district courts of tho parish of Orleans to immediately transfer the records of all injunction suits pending in their courts, to the Eigth District Court, to he proceeded with according to law. Tho same' section declares tho judges thereof’ incompetent to do any other act in such cases, oxcopt to malic said order of transfer^ Therefore, the judge of the Seventh District Court of tho parish of Orleans is without jurisdiction from and after the passage of the act creating tho Eighth District Court, to try or determine any injunction suit, although the writ might have issued from his court, and the cause be still on the docket.
    A writ of mandamus will not, thereforo, issue from tho Supreme Court, compelling the judge of the Seventh District Court of tho parish of Orleans to try and determino an injunction suit which has been granted prior to tho passage of the act RTo. 2, creating tho Eighth District Court, and is still pending. In such a case tho record should he transferred from tho Seventh to tho Eighth District Court.
    APPLICATION for Writ of Mandamus.

      Oollens, J., respondent. Lea, Finney & Miller, for relator.
   IIowe, J.

On tlie twenty-first of February, 1870, the relator commenced an action in the Seventh District Court for the parish of Orleans, against the New Orleans, Mobile and Chattanooga Railroad Company, tho character of which is determined and will fully appear by tho prayer of their petition, which we here transcribe:

“Wherefore petitioner prays that, considering the affidavit and bond hereto annexed, a writ of injunction issue, directed to said New Orleans, Mobile and Chattanooga Railroad Company, its officers and agents, prohibiting them from interfering with or disturbing petitioner in any manner in tbe use, possession and enjoyment of said two strips of land of twelve feet in width, and of said strip of fifty French feet wide, and from locating and constructing along and upon said two-strips the tracks of the railroad of the said New Orleans, Mobile and Chattanooga Railroad Company, and from interfering with or disturbing in any manner tbe running of petitioner’s engines and cars upon petitioner’s said track, and from interfering with or disturbing petitioner in tbe use, possession and enjoyment of petitioner’s said depots and buildings used for and in connection with petitioner’s said railroad, and prohibiting and enjoining said New Orleans, Mobile and Chattanooga Railroad Company from applying to any other court or authority for any writ, order or action in the premises, or relating to the subject matter of this petition, or in support of any pretensions said company may set up to the said two strips of land, each of twelve feet in width, and to the said strip of fifty French feet wide, or to interfere with the running of petitioner’s said engines and cars upon petitioner’s said tracks, or with petitioner’s use of its said depot and buildings, and with the exerciso of petitioner’s privileges and powers; that said New Orleans, Mobile and Chattanooga Railroad Company be duly cited to answer hereto; that after due proceedings, petitioner have judgment that said injunction be made perpetual, with costs, and for general relief.”

A preliminary order of injunction was granted in accordance with the terms of this prayer, which, on the third of March, 1870, the defendants therein, the Chattanooga Company, moved to dissolve. The trial of the motion to dissolve was begun on the fifteenth March, and continued from time to time until the twenty-first of the same month, when it was closed, and the matter taken under advisement. On the eighteenth of May, instant, on which day the cause was fixed for trial on its merits, the respondent in the proceeding now before us, the Judge of the Seventh District Court, refused to décide the issues already tried herein, or to hear, try or decide the case on the merits, or to allow any further proceedings therein,” giving as a reason that on the second of May, instant, at the suit of the Chattanooga Railroad Company v. The Pontcliartrain Railroad Company, the Judge, of the Eighth District Court had issued an injunction against the latter, which was, in effect, a counter injunction, and enabled the Chattanooga Company to do acts, which, by the Seventh District Court, they had been forbidden to commit, and that thero was danger that if the Seventh District Court asserted its jurisdiction, a conflict would arise which might not only seriously embarrass the ministerial officers of the court, but destroy the authority and dignity of the judiciary, and bring it, by its own act, into ridicule and contempt.”

The relators applies for a mandamus to compel the respondent to proceed with and try its suit against the Chattanooga Railroad; and the argument of counsel has presented two questions for decision; first, of the constitutionality of the act of March 16, 1870, entitled An Act to establish an additional district court [the Eighth District Court] for the parish of Orleans, to define the jurisdiction thereof, and to reorganize and determine the jurisdiction of the existing seven district courts for the parish of Orleans;” and, second, of the effect of this act, if valid, upon the suit instituted by relator against the Chattanoogo Railroad Company.

Mrst — There is nothing in the nature of things which makes it improper for the Legislature to control the organization and jurisdiction of the district courts of this parish. Such a power has been freely exercised in Louisiana, under the constitutions of 1812, 1845, 1852 and 1864. A similar authority has generally been vested in the Legislatures of our sister States, and has always been exercised by Congress, in reference to tribunals inferior to the Supreme Court of the United States. Such a control has never, so far as we are advised, been deemed of a nature dangerous to public liberty or private right; but, on the contrary, may, in many instances, be used to further both; (and especially, by proper regulation, to prevent those distressing conflicts which have too often sprung up in large cities, where courts of the first instance are necessarily numerous. If, therefore,.it had been the intention of the framers of the constitution of 1868 to deprive the Legislature of a control so innocent and useful — of a power which had been exercised without complaint in Louisiana for nearly sixty years— it is likely they would have so declared in unmistakable terms. Yet, when we turn to the constitution, we find this provision:

“For each district there shall be one district court, except in the parish of Orleans, in which the General Assembly may establish as many district courts as the public interests may require. Until otherwise provided, there shall be seven district courts for the parish of Orleans, with the following original jurisdiction: The First, exclusive criminal jurisdiction; Second, exclusive probate jurisdiction; Third, exclusive jurisdiction of appeals from justices of the peace; the Fourth, Fifth, Sixth and Seventh District Courts, exclusive jurisdiction in all civil cases, except probate, when the sum in contest is above ■one hundred dollars, exclusive of interest. These seven courts shall have such further jurisdiction not inconsistent herewith as shall be conferred by law.”

We find in this language express authority conferred on the Legislature to create an eighth district court, and we are unable to perceive anything which prohibits the Legislature from changing or modifying the jurisdiction of the seven courts whose existence is thus provided for. On the contrary, by a construction which is neither forced nor unreasonable, this power of control and' modification may be fairly found in the article quoted. The words' “ until otherwise provided may, with entire grammatical propriety, be taken to qualify whatever succeeds them in the sentence, and the whole interpreted to mean that the determination in the constitution, both of the number of courts and of their respective jurisdiction, is provisional, and is to last until otherwise provided; and that when the Legislature shall choose to act the provisional regime shall cease to the extent indicated by the lawmaker.

The reasonableness of this interpretation may further appear from another consideration. There is given to the Legislature a power to increase indefinitely the number of district courts in this parish, and every citizen will liope that the population and business of New Orleans will grow so largely as to necessitate a still greater number oí district courts at some future day. But, with every increase of number, the danger of conflict of jurisdiction increases, and we must, therefore, prefer an interpretation which leaves to the Legislature, along with the power of increase, the power of regulation and control.

Again, as remarked by the Judge of the Eighth District Court in a recSnt opinion, which has been incorporated in one of the briefs in this case, such an interpretation gives a meaning to the whole article.

“‘The General Assembly may establish as many district courts as the public interest may require.’ In order to establish a court in furtherance of public interest, the law must vest it with jurisdiction over subject matters of suit. But by carefully examining the article under discussion, it will be seen that all possible jurisdiction has been divided up between the seven courts named. To the First District Court is granted exclusive criminal jurisdiction; to the Second, exclusive probate jurisdiction; to the Third, exclusive jurisdiction in certain appeals, and to the other courts, exclusive jurisdiction over all other civil matters. In order to vest a new court with jurisdiction over any matter the law must first deprive one or more of these courts of somewhat of this exclusive jurisdiction. Thus the temporary character of the investiture is determined by necessity of giving a meaning, to the entire article.”

We must conclude therefore that it was not clearly beyond the power of the Legislature, in creating the Eighth District Court, to confer upon it the exclusive jurisdiction defined in the statute under consideration, and for this purpose, to take from the Third, Fourth, Fifth, Sixth and Seventh courts some portion of the power they had theretofore exercised. The most that can be said for the arguments against this power, is, that they go to create a doubt, and in such case the rule has always been that the judiciary must construe the doubt in favor of the validity of the law. Edwards v. Dupuy, 21 An. 694, and authorities there cited.

Second — We have next to consider the effect of this statute upon the relator’s suit. By the third section it is provided “ that the Eighth District Court, hereby created, shall have exclusive jurisdiction, in and for the parish of Orleans, to issue writs of injunction, mandamus and quo warranto, and to entertain all proceedings, suits or contestations in which the right to any office, State, parish or municipal, is in any way involved, * * * Provided, * * that this act shall not bo so construed as to prevent any judge or court from issuing an injunction to stay or regulate the execution of any order of seizure granted, or judgment rendered by said judge or court.”

By the fourth section it is provided “ that in all cases in which an injunction shall issue from the Eighth District Court, in suits or proceedings pending before tbe other district courts of the parish of Orleans, it shall be the duty of the judge and clerk of such courts in which such suit or proceeding is depending, to immediately transfer the record of such suit or proceeding to the said Eighth District Court, which shall be vested with power to hear and determine such cause as if the same had been originally brought in said Eighth District Court. Immediately upon the passage of this act it shall be the duty of the judges of the Fourth, Fifth, Sixth and Seventh District Courts for the parish of Orleans, to transfer to the Eighth District Court for the parish of Orleans, all suits or proceedings, the jurisdiction over which is by this law vested in the said Eighth District Court. The said Fourth, Fifth, Sixth and Seventh District Courts are divested of all jurisdiction over such cases, except for the purpose of entering an order of transfer, and the said Eighth District Court shall be and is hereby vested with power to hear and determine suits or proceedings, so to be transferred, as if the same had been originally brought in the said Eighth District Court.”

The relators contend that these provisions, conferring an exclusive jurisdiction to issue injunctions, and directing a transfer, do not apply to their ease, because the injunction therein was issued before the law of March 16, 1870, was passed; that “ the question is not what court shall issue an injunction; that has already been done; and no counter-injunction could lawfully be issued by any court in this State. The question,” they say, “is, what court shall dissolve the injunction already issued, and there is nothing in the act that purports to take away the power of the Seventh District Court to maintain, control or quash its own process already issued.”

We find it impossible to assent to this proposition. The intent and object of the law are to confer upon the court which it creates exclusive jurisdiction of a class of cases which had been provocative oí strange and unseemly conflicts among some of the district courts of this parish. Among these cases the injunction suit seems to have occupied a prominent position in the thought of the lawgiver. Not only does he confer on the new court exclusive jurisdiction to issue injunctions (except in certain instances, of which third oppositions and suits of nullity are examples), but he provides in the fourth section that when the Eighth District Court shall issue an injunction in a suit pending before one of the other district courts, that suit shall be immediately transferred. It is then provided that immediately on the passage of the act, all suits or proceedings, the jurisdiction of which is thus vested in the new court, shall be transferred, and the other courts divested of all power tó make any order in them, except an order of transfer. This refers, of course, to suits pending at the time the law was passed, for the transfer is to be made immediately on the passage •of tlie law; and we are of opinion that the suit of1 the relator was included among them. It is a suit iu which the plaintiff judicially claims an injunction. He asks for a preliminary injunction and obtains it, but this process is, in its nature, conservatory and temporary, merely. He asks further for a perpetual injunction; that is to be ¿granted in the final judgment, if, at the time it is rendered, the judge has jurisdiction to grant it; and it is to endure for all time. But ■between the time the Judge of the Seventh District Court granted the ■temporary injunction and the time he was called upon to adjudicate the question whether he should issue a perpetual injunction, his power ■to issue an injunction of any kind iu such a case was takeu away. His jurisdiction, “ the power of him who has the right of judging,” ,(C. P., 76), was gone; and the relator has no right to compel him, by mandamus, to proceed with a cause in which he can not, for want of power, give the judgment which is asked for in the petition.

The relator complains of a loss of rights iu this matter. Practi•cally,” he says we have been flanked out of position, and lost the benefit of our suit and writ by the counter injunction issued from the Eighth District Court.” But this counter injunction, as we have seen, was not issued until the second of May, some sis weeks after the delator had an opportunity to transfer its cause. If it did not choose to make the transfer, it can hardly complain if the Judge of the Eighth .District Court, who can not be presumed to have known of the suit, ¡should entertain a petition from its adversary.

We are of opinion that the cause should be transferred to the Eighth District Court; and, it is therefore ordered that the appilication of the relator be dismissed, with costs.


author: Howell, J.

text:
    No. 2788.
    J. Christen v. R. Ruhlman—C. Lusse v. J. Christen.
    'The right of a creditor of an individual member of a commercial firm to the partuersliid property is subordinate to those of the partnership creditors.
    sale, by one partner, of his interest in the partnership, to another partner, in payment of his indebtedness to the firm, before the institution of suit by an individual creditor against the partner who sells, can not be successfully attached by the individual creditor, because it does not impair his rights. Therefore, if, as in this case, the sale of one partner to the Other toolc place before suit was brought by the individual creditor of the partner who sold, the partner who purchased the interest can successfully resist, by injunction, the sale of the property which formerly belonged to the firm, in payment of the judgment against the partner who lias sold his interest.
    APPEAL from the Seventh District Court for the parish of Orleans. Gollens, J.

      Augustin & Michel and Sammel Myers, for plaintiff and ¡appellant. H. Howard McOaleb, for defendant and appellee.
   Howell, J.

Caspar Lusse, who was made garnishee in the first, and is plaintiff in injunction in the second of these two consolidated cases, ¡has appealed from a judgment decreeing the notarial act of sale of a grocery establishment and partnership interest from R. Ruhlman to .him, C. Lusse, on the twenty-seventh of March, 1869, to be null, and ordering the said parties to produce “the assets and property in which the interest of said Ruhlman was seized,” (specifically describing it,) to be sold under Christen’s execution against Ruhlman, “in order that the purchaser of said interest, at sheriff’s sale, may be put in joint possession thereof with said Lusse,” and, in default thereof, condemning Lusse to pay the judgment of Christen against Ruhlman, and also dissolving the injunction obtained by Lusse, with four hundred dollars damages against him and his surety, J. II. Wilson, who has also appealed.

We deem it unnecessary to express an opinion upon the right to and regularity of the attachment proceedings, as they seem to have been virtually waived by the subsequent seizure under the execution, and the right to make said seizure is raised in the injunction suit.

Lusse, plaintiff in injunction, alleges that he had purchased the interest of his partner, Ruhlman, in all the partnership property and business, prior to the attempted seizure by Christen, under an execution for an individual debt against Ruhlman, while Christen contends that the said sale was simulated and fraudulent.

The evidence satisfies us that there was a real sale, by one partner to another, of his interest in the partnership, prior to the institution of the suit of Christen v. Ruhlman, which put an end to the partnership, and all the acts complained of by Christen might probably avail a creditor of the alleged partnership, but not an individual creditor of the partner who sold. - The partnership, in .this instance, was largely indebted to Lusse, who furnished all the capital, and was losing money. In buying out his partner, one-half of this indebtedness of the partnership to him was taken as a part of the price, and the balance thereof was paid in cash to the vendor, who was thereafter employed and paid as foreman of the establishment.

In all this we see nothing which partners are prohibited from doing, at least nothing of which an individual creditor of one of the partners can successfully complain. The fact that the old advertisement of the firm was continued in a newspaper after the publication of its dissolution in another, might make the retiring partner responsible to creditors dealing with the firm, but could not increase his liability to his individual creditors, whose rights upon the partnership property are subordinate to those of the partnership creditors. In this case, Lusse was a large creditor of the partnership, and the sale to him by his copartner of the latter’s interest, was not, in contemplation of law, giving him an unjust preference over an individual creditor of his said copartner. The partnership is distinct from the individuals forming it.

It is therefore ordered that the judgment appealed from be reversed, and that the injunction herein be perpetuated, with costs in both courts.

Mr. Chief Justice Ludeling and Mr. Justice Wyly absent.