text:
    No. 13,811.
    State of Louisiana vs. Morgan's Louisiana and Texas Railroad and Steamship Company.
    Syllabus.
    1. A lease by one railroad company of the tangible property of another does not, of necessity, involve the franchises, or corporate existence, of the lessor; and a judgment against the lessee, in a suit to which the lessor Is not a party, with respect to the lessee’s use, under Its charter, of the leased property, is not conclusive'as to rights of the lessor which are not Included In the lease.
    2. There is nothing in the charter of the defendant company (Act No. 37 of 1877, Regular Session) that authorizes said company to carry on the business of public warehouseman, whether under said charter, or under Act No. 156 of 1888, or otherwise, or that authorizes it to carry on such business as Incidental to the business of a railroad operated by any other person or corporation than itself.
    APPEAL from the Civil District Court, Parish of Orleans.--Titeará, J.

      Walter Guión, Attorney General, (E. Howard McOalet, of Counsel), for Plaintiff, Appellee.

      Denegre, Blair & Denegre, for Defendant, Appellant.
   The opinion of the court was delivered by

Monroe, J.

This suit may he regarded as the sequel to that entitled “State vs. Southern Pacific Co.,” 52 Ann. 1822. In the latter case, it was charged by the State that the defendant, the Southern Pacific Company, was unlawfully exercising the franchise of “public warehouseman” in New Orleans, and the subject, of the suit was to restrain it from so doing. The following excerpts from the statement and opinion of the court, as therein made and rendered, will serve to make clear the condition of affairs upon which the present action is predicated, to-wit:

This court, speaking through the Chief Justice, in stating the case, said: “After pleading the general issue, it (the Southern Pacific Co.) admitted and averred that, for nearly ten years past, it had been storing, for hire, in warehouses belonging to the Morgan’s Louisiana, and Texas Railroad and Steamship Company, a corporation created by special act of the Legislature of this State, being Act No. 37 of the Acts of 1877, by arrangement with the owner thereof, goods and merchandise, transported, or to be transported, over the lines of railroad and steamships of said company, consisting almost entirely of sugar and rice, and, during said period, had been issuing warehouse receipts, such as were authorized by Act No. 156 of the General Assembly of this State” (of the Session of 1888), with the conditions and requirements of which the defendant has fully complied; and it further averred that said business was not ultra vires, or contrary to the policy of the State, or the interests of the public; that it afforded much needed facilities to the patrons of the railroad, and was a necessary and proper incident to the business of said railroad, in which it was engaged. “That, whilst it believed that its action in the premises had been entirely intra vires, nevertheless, in view of the contention made by the State in this suit, it had concluded to withdraw from said business, referred to by the State as that of “public warehouseman,” and to surrender and return to said owner the possession of said warehouse; and it had done so, and had transferred its unfinished business to the said Morgan’s Louisiana and Texas Railroad and Steamship Co.” Proceeding with the statement, the court said: No notice seems to have been taken of the averment, in the answer, that defendant had withdrawn from the business of warehouseman, and had surrendered and returned to Morgan’s Louisiana and Texas Railroad and Steamship Company (the owner thereof) the possession of the warehouses, and had transferred it’s unfinished business to said corporation; but the case went to trial, resulting in a judgment in favor of the defendant, dismissing plaintiff’s demand, with costs. The State has appealed. Plaintiff’s prayer was based upon allegations that the Southern Pacific Company, a foreign corporation, chartered and organized under the laws of the State of Kentucky, carrying on a business and maintaining a public office in this State, and in the City of New Orleans, had intruded into, and was unlawfully holding and exercising, the public franchise of carrying on and transacting the business of a public warehouseman in the City of New Orleans and State of Louisiana. That the Southern Pacific Company was then, and had been for more than a year, daily, and continuously, soliciting and receiving property for storage in its warehouses, for hire and reward, * * * issuing, over the signature of its authorized agents, public warehouse receipts therefor, to the order of different persons entitled thereto, which said receipts purport to be issued by defendant as a public warehouseman; * * *. That it had been receiving goods, wares, merchandise and agricultural products in the warehouses, leased and kept by it in the City of New Orleans, from day to day, during the past year, charging storage therefor, and delivering the property received, and, in general, carrying on and conducting the business known as public warehouseman ; * * * that said acts and doings of said defendants * * * were illegal and contrary to petitioner’s public policy, * * * were not authorized by its (defendant’s) charter, and were wholly ultra •vires, * * * and were contrary to, and violative of, the Constitution of this State, which provides that no corporation shall engage in any business other than that expressed in its charter, or incidental thereto; * * * and the acts and doings of said defendant were highly injurious and detrimental to petitioner’s interest and the interest of her citizens, licensed and authorized by her laws to carry on business as public warehouseman in the City of New Orleans and State of Louisiana.”

In the opinion, it was said, among other things:

“Had the defendant been organized in Louisiana, under a charter precisely similar to that under which it was incorporated in the State of Kentucky, it would not have been entitled to carry on, here, as a corporation, the business of warehousing, as a substantive, independent business. The charter of the company did not entitle it to pursue such business in Kentucky. * * * The evidence shows that the defendant company is operating, in Louisiana, a connected line of railroad, under leases obtained from several railroad corporations. We do not think its right to do this is an issue in this case, under the pleadings. * * * We are of opinion that the defendant company is not authorized to receive, as being for purposes incidental to its business as a railroad or common carrier, a license under Act 156 of 1888. The license granted thereunder contemplates a permanence of the storage of articles received which is inconsistent with the legitimate and regular business of a railroad corporation. * * * The rights, duties, and obligations of a common carrier and warehouseman are separate and distinct. Railroad companies are common carriers, whilst warehouse-men are depositaries for hire or reward. We are of opinion that the defendant company is not authorized to receive, for storage, for hire, in warehouses, goods, or produce, which have not been received by it under and from shipments by its road, or for shipments upon its road. We think it authorized to receive them for storage in warehouses, under anti from shipments upon its road, and for shipments by its road, to the extent that such storage is in fulfillment of its obligations as a common carrier, and not otherwise, and no longer. We do not consider that storage of such goods and merchandise by defendant, in warehouses, for hire, is incidental to its business as a railroad corporation and common carrier, when the storage is made under, either an express or implied, special, or general, agreement with shippers, and consignees, either before or at the time of shipment, or on receipt of'goods, that they should be received and held for storage, for hire, either for a fixed time or at the will of the shippers or consignees. * * * We think that the storage of goods by a railroad in its warehouses, as a matter incidental to its business as such> contemplates and looks to a rotation of storage as immediate and prompt as the railroad corporation can make it. * * * To be incidental business the storage must be preliminary, either, to immediate transportation, or immediate removal. (Hutchinson on Carriers, Sections 62, 63, 88, 89, 97, 351, 352, 356, 369, 378; Chicago and Rhode Island Railroad vs. Warren, 16 111. 502.) * * * We do not think we are called on, here, to attempt to define the particular time and circumstances under which the relations of shippers and consignees of goods by a railroad, * * * as a common carrier, shift to those of bailors and bailees (State ex rel. Violet vs. Johnston, 46 Ann. 85); it suffices to recognize the fact that there may be such shifting, and, when it occurs, the storage of goods in the warehouses of the corporation, for any length of time, becomes a distinct, substantive, business, and cannot be carried on as being incidental to the franchise of a railroad corporation. That the defendant has carried on such substantive business in the past, we think shown by the evidence, * * * the State has the undoubted right to prevent its continuance.”

And there was judgment as follows, to-wit:

“For the reasons assigned, it is hereby ordered, adjudged and decreed, that- the judgment of the District Court be * * * reversed, and it is now ordered, adjudged and decreed, that the defendant corporation be, and hereby, enjoined and restrained from taking out a license as a public warehouseman, under Act No. 156 of 1886 (1888) “and from carrying on business as a public warehouseman for hire. It is further ordered, adjudged and decreed, that the defendant company be, and it is hereby, enjoined and restrained from carrying on, or pursuing, the business of warehousing, for hire, as a substantive business, and that it be restricted in its storage of goods in warehouses to storage by it, in fulfillment, alone, of its obligations as a common carrier.”

Two of the members of the court, whilst giving assent to the principle on which the decision of the majority rested, withheld concurrence, on the ground that it should have distinctly affirmed, instead of leaving it to inference, that nothing therein contained was intended to deny defendant corporation the right to charge a reasonable compensation, or demurrage, for freight received by it, in its capacity as common carrier, for transportation over 'its lines, and which could not be immediately shipped to its destination, or for freight received by transportation over its lines, which could not be immediately delivered to the consignee. And they expressed the opinion that such right undoubtedly exists, as incidental to the business of common carrier, though freight cannot be so held and charged for beyond a reasonable time.

Upon the application for rehearing, the following was concurred in by all the members of this court, viz:

“It was not thought by the majority of the court that any serious doubt would arise as to the right of the defendant to charge and recover compensation for storage, in its own warehouses, of goods left on its hands by'reason of the failure of the consignee to remove the same promptly, or for the enforced storage of property handled by it in its capacity as a common carrier; but, as there appears to be some uncertainty as to the interpretation of which the opinion and decree, heretofore handed down and entered, are properly susceptible, and as that uncertainty is shared by our brethren, who withhold their concurrence upon that account, we think it advisable to say, that it is not the meaning or intent, of the judgment, as rendered, to deny the right of defendant to charge and recover compensation under the circumstances as hereinbefore stated, and that the difference of opinion between the members of the court was, not as to whether such right exists, for we are all agreed that it does, but as to whether the fact of its existence was sufficiently recognized in the opinion and decree. With this explanation, the application for rehearing is refused.”

Thereafter, the State brought the suit which is now before the court, and alleges, in substantially the same language as that used in the suit against the Southern Pacific Company, that Morgan’s Louisiana and Texas Railroad and Steamship Company (-which for convenience will be designated as the “Morgan Company”) is carrying on the business of a public warehouseman, issuing warehouse receipts, etc. The petition herein filed then -recites the fact and the terms of the judgment rendered in the former suit, and alleges that said judgment is final and executory. It further recites the language of the answer filed in said suit, to the effect that the defendant had concluded to withdraw from the warehouse business and had surrendered and returned the warehouses used by it to the Morgan Company, and had transferred to said company its current warehouse business, and alleges that no agreement has ever been entered into whereby the Southern Pacific Company has surrendered said warehouses or transferred said business, and that if any such agreement and surrender were made, the same were simulations, devised for the purpose of evading the effect of the judgment which the two corporations believed would be rendered against such Southern Pacific Company. It further alleges that, since the alleged withdrawal of the Southern Pacific Company, the business which it was prohibited from carrying on has been continuously conducted by said Morgan Company, as the representative, and for the account, of said Southern Pacific Company.

It is further alleged that, if the petitioner be mistaken in these allegations, and if the Morgan Company is not carrying on said business for account of the Southern Pacific Company, nevertheless, the judgment rendered against the latter company is binding on the former; and the Morgan Company, by reason of its relation with the Southern Pacific Company, and the privity existing between them, is concluded by said judgment, and that its carrying on business, in violation thereof, is in contempt of the authority of this court.

It is further alleged that, if neither of these positions be maintained, and it should be held that said Morgan Company is not carrying on said business as the representative of said Southern Pacific Company, and is not concluded by -the judgment against the latter,' nevertheless, that said Morgan Company is without authority to carry on said business, for the reason that it claims to have leased to said Southern Pacific Company its railroad in this State, together with all its steamships, depot buildings, wharves, and all other property connected with, and appurtenant, thereto, and that; “if said contract * * * be a lease, about which petitioner expresses no opinion, and if such, it be not binding on petitioner to the extent of not denying to it the right of suing to forfeit the charter of said Morgan’s Louisiana and Texas Eailroad and Steamship Company, by reason of its having made and entered into a contract with the Southern Pacific Company not authorized by its charter and wholly ultra vires, in regard to which petitioner reserves all of its rights, and especially the right to sue, hereafter, for such forfeiture of charter, should it be deemed advisable and proper to do so (?), nevertheless, the said Morgan’s Louisiana and Texas Eailroad and Steamship Company, as between it and the Southern Pacific Company, occupies, toward the latter, the position of having leased to it all the rights and privileges granted to Morgan’s Louisiana and Texas Eailroad and Steamship Company, in its charter, to carry on, conduct, and operate, a railroad in the State of Louisiana, and that, therefore, having abandoned and divested itself of the privilege and right to carry on, conduct and operate, a railroad in this State, it had abandoned, surrendered, and divested itself of any rights, if any it has, under its charter, which, however, is denied, to carry on and conduct the business of a public warehouseman, or to operate, conduct, or carry on, the business of storing goods, wares and merchandise, of any kind, at all, in any capacity.”

It is further alleged that the defendant, upon May 24th, 1900, applied for, and obtained, a license to carry on the business of public warehouseman, under Act No’. 156 of 1888, but that it is without, authority, under its charter, to carry on said business, and is prohibited, by the Constitution, from engaging in any business other than that expressed in said charter, or incidental thereto. There is a prayer for a preliminary injunction, jewtraining the defendant from carrying on the business of public warehouseman; from receiving and storing goods and merchandise, or agricultural products, whether for pay or otherwise; from issuing warehouse receipts; from leasing or purchasing any building to be used as a public warehouse, or for storing goods, merchandise or agricultural products, whether for pay or otherwise; and from selling, or otherwise conveying, any franchise to store goods that it may claim to possess, whether as a public warehouseman or otherwise. And the petition concludes with a prayer for judgment maintaining such injunction and decreeing that the defendant is carrying on the business of a public warehouseman for account of the Southern Pacific Company, that, for that, or other reasons, stated, it is prohibited from so doing, and is concluded by the judgment heretofore rendered against said company, and is in contempt thereof, and that, under no circumstances, is said defendant entitled to make use of the franchise of .a public warehouseman, or to receive or store, for hire, or otherwise, whether as a public warehouseman of in any other capacity, any goods, wares, or agricultural products.

The application for the preliminary injunction was refused by the judge a quo, upon the face of the papers, and the State, thereupon, applied to this court for a writ of mandamus to compel its issuance, with the result, that the trial judge was directed to hear the application upon a rule nisi. State ex rel. Attorney General vs. Judge, 104 La. 110. The attempt to obtain a preliminary injunction seems, however, to have been, eventually, abandoned, and the defendant filed an answer, to the following effect, to-wit:

It avers that it was incorporated by Act No. 37, of 1877, and maintains its offices in the City of New Orleans, and that said act of incorporation constitutes a contract between it and the State, which is protected by the constitution of the United States, and that its rights, Under said contract, constitutes property, the divesture of which is prohibited by the same authority; and it claims the protection of paragraph 1, Section 10, ,and of Section 1, Amendment 14, of said Constitution, as against any adverse construction of Act No. 156, of 1888, or of either of the Constitutions which have been adopted by •this State. It further avers that its said charter authorizes it to exercise all the franchises .and to carry on all the business which it is charged with exercising and carrying on, and this, whether separately from its railroad business, or otherwise. It especially denies the allegation of the petition to the effect that there was no surrender of defendant’s warehouses by the Southern Pacific Company and no transfer of the warehouse business, and allege that it obtained the license contemplated by Act No. 156 of 1888, and resumed control of said warehouse in May, 1899, and, thereafter, conducted business therein, in good faith, and solely for its own account. And it further denies that, in so doing, it violated, or was guilty of contempt of the judgment rendered against the Southern Pacific Company, in a suit to which the defendant was not a party, and which was predicated upon the charter incapacity of the corporation against which it was rendered.

Thereafter, a supplemental petition was filed on behalf of the State, in which it is alleged, that, if the defendant’s legislative charter confers upon it the right to engage in the warehouse business. except as incidental to its business as a common carrier, the same is unconstitutional, for tbe reason that no such object is expressed in the title. And the parties, thereupon, went to trial upon the merits, with the result, that there was judgment for the plaintiff, in the following terms, to-wit:

“* * * Enjoining and restraining said defendant from carrying on business as a public warehouseman, for hire, and of availing itself of the provisions of Act 156, of 1888, and further enjoining said defendant from pursuing the business of warehousing for hire, as a substantive business, and restricting it, in its storage of goods in warehouses, to storage by” (in) “fulfillment, alone, of obligations incurred by it in due course of business, as a common carrier, etc.” From this judgment, the defendant has appealed, and the plaintiff answers the appeal, and prays that said judgment be made to conform to the prayer of its petition.

The following are the facts of the case, as they appear from thi record, to-wit:

The “Morgan’s Louisiana and Texas Eailroad and Steamship Company,” which, as heretofore, will be designated as the “Morgan Company,” was incorporated by an act of the General Assembly of this State, Mo. 37, of 1877. By the terms of the act, the corporation was granted perpetual succession, and such powers were conferred as appeared to be necessary for the accomplishment of the purposes declared in the title, which, together with certain provisions concerning the maintenance and conduct of warehouses, will be more particularly referred to in the opinion which follows.

The capital stock was fixed at $5,000,000, divided into fifty thousand shares of $100 each, and the company was authorized to increase the same to $15,000,000 and, some years later, availed itself of that privilege. At the original organization, the whole amount of capital called for by the charter was furnished by Charles Morgan, but fifty shares of the stock were issued to five other gentlemen, in lots of ten shares each, and they gave their notes, either to Morgan or to the company, each, for $1000, and those notes, together with the certificates which had been issued to the makers, remained in the possession of the company from the time the notes were given, and the certificates were returned to it, save perhaps in one or two instances, where other persons have been substituted as shareholders, until within the last few years, when they were sent to the assistant secretary of the company, who is also an officer of the Southern Pacific Company and has his office in New York. In 1883, there was established, by the Legislature of Kentucky, a corporation called the “Southern Pacific Company,” to which was also granted perpetual succession, and which was authorized, among other things (quoting the language), “to contract for, and acquire by purchase, or otherwise, bonds, stocks, obligations and securities, of any corporation, company, or association, now existing, or hereafter formed, or constituted, and bonds, obligations and securities, of any individual, State, territory, government, or local authority, whatever, and to enter into contracts with any corporation, company, or association, individuals, State, territory, government, or local authority, in respect of their bonds, stocks, obligations and securities, or in respect of the construction, establishment, acquisition, owning, equipment, leasing, maintenance, or operation, of any railroads, telegraphs, or steamship lines, or any public, or private, improvements, or appurtenances thereof, in any State, or territory of the United States, or in any foreign country, and to buy, hold, sell, and deal in, all kinds of public, and private, stocks, bonds, and securities,” etc.

The corporation thus established, shortly thereafter, acquired all the stock of the Morgan Company of which Charles Morgan had been the owner, and, in 1885, entered into a contract with said Morgan Company, and other railroad companies, the following excerpt from which will be sufficient for the purposes of this case, to-wit:

“The said Morgan’s Louisiana and Texas Railroad and Steamship Company hereby leases to the Southern Pacific Company, for the term of ninety-nine years from the date hereof, its railroad, situated in the State of Louisiana, and known and designated as the Morgan’s Louisiana and Texas Railroad, together with all the branches thereof, and the rolling stock, telegraph lines, tools, and property of every sort and nature whatsoever, now in use upon, or in connection with, said railroad and branches, and together with all the appurtenances thereunto belonging; also all steamships, tugs, wharves, piers, landings, depots, buildings and all other-property, real and personal, now owned, held, or possessed, by the said Morgan’s Louisiana and Texas Railroad and Steamship Company, with the right to possess, maintain, use and operate, the said property, and to receive the rents, issues, and profits, thereof.”

In consideration of this lease, the Southern Pacific Company assumed certain' obligations of the Morgan- Company and aarreefil *r pay to that company a certain proportion of its (the Southern Pacific Company’s) profits.

The particular warehouses, the operation of which has given rise to this controversy, to-wit: the “Bienville” and “Poydras,” were built by the Morgan Company in 1889 and 1892, respectively, and are owned by that company. The Southern Pacific Company, however, shortly after they were built, assumed control of them, by virtue of some arrangement, the particulars of which are not disclosed, and continued to manage them until May 4th, 1899, when it surrendered such control and management to the Morgan Company, which company, upon May 19, 1899, had obtained a certificate, or license, to do business as a public warehouseman, agreeably to the provisions of Act No. 156 of 1888, and has, since that date, conducted' such business in its own name, and for its own account.

Opinion.

It is nowhere charged, in the pleadings, that either the Southern Pacific, or the Morgan, Company, was not legally incorporated, or that either of them failed to enter upon the uses of its corporate franchise; or that it was incompetent for the Southern Pacific Company to acquire the stock of the Morgan Company, or to lease, or operate, its railroad, or that the lease of its tangible property divested the franchise and terminated the existence of the Morgan Company. These questions are not, therefore, issues in the case, and they were not issues, and were not decided, in the case against the Southern Pacific Company. The proposition presented in that case, and decided by this court, was, that the Southern Pacific Company, exercising the franchises conferred by its own charter, a Kentucky statute, and operating tangible property leased from the Morgan Company, could not carry on, in this State, the warehouse business, as an independent business, whether as a public warehouseman, under the Act of 1888, or otherwise, but that, in so far as that business is concerned, it must confine itself to such as is incidental to the operation of the railroads of which it is lessee. Whether the lessor, the Morgan Company, if operating its road, itself, or without operating it, could carry on a warehouse business, independently, incidentally, or otherwise, was neither presented nor considered for the purposes of the decision so rendered; but if it had been presented and considered, it is difficult to perceive how it could have been so decided as to bind the Morgan Company, since that company was not a party to the suit, and the Southern Pacific Company was without authority, and did not pretend, to stand in judgment for it with respect to its franchises, or its autonomy.

It is now said on behalf of the State, that, where a railroad company, acting without authority, leases its road to another company, it remains bound for the acts of the lessee in the management of the property so leased; and we are referred to the case of Fisher vs. West Virginia & Pittsburg R. R. Co., 23 L. R. A. 758. But, in that case, the suit was brought on behalf of a passenger, who was injured, against the lessor company, and the defendant filed a special plea, to the effect that it had leased its road to another company; and that the lessee should have been made the sole defendant. The question, whether the lessor would have been bound by a judgment in a suit to which the lessee, alone, was made a party, was not even suggested.

It is, also, said, on behalf of the State, that “a sale or transfer perédente lite, without any express or implied notice, affects the purchaser in'the same manner as if he had had such notice, and he will, accordingly, be bound by the decree in the suit,” from which it is argued that, because, pending the suit against the Southern Pacific Company, that company transferred its current warehouse business to the Morgan Company, the latter is bound by the judgment, subsequently rendered, against the former. The judgment against the Southern Pacific Company was to the effect that it cannot, under its Kentucky charter, carry on the warehouse business, as a substantive business, and that, with respect to said business, it must confine itself to that which- is incidental to the railroad business, its right to conduct which was not called in question. In so far, therefore, as that judgment is said to affect the right of the Morgan Company, to conduct the warehouse business, as a substantive business, the case is about the same as if the proprietor of any ordinary business, who takes out a license, sells his stock and fixtures, but does not transfer, or part with, his license, and, in a suit against the vendee of the stock and fixtures, it is held that such vendee cannot conduct the business without a license. Such a judgment can hardly be said to conclude the vendor with respect to his use of the unexpired license, which he still holds. As to the right of the Morgan Company to carry on the warehouse business as incidental to that of a railroad, it is sufficient for the purposes of the present question to say, that, in the judgment, it was held that the Southern Pacific Company, exercising the franchises conferred on it by the charter, has the right to carry on the warehouse business, as incidental to that of the railroad of which it is the lessee, and that the question here presented is whether the Morgan Company, by virtue of the franchise conferred by its charter, can carry on such warehouse business, as incidental to that of a railroad of which it is the lessor, and the lessee of which has undertaken to surrender its recognized rights in that respect. It may be, that, under its charter, the Southern Pacific Company can only engage in a warehouse business that is incidental to that of a railroad operated by itself, and that the Morgan Company, under its charter, has the further authority to engage in such business to the extent that it is incidental to that of a railroad operated by other companies.

It is further claimed, on behalf of the State, that the defendant is bound by the decree against the Southern Pacific Company because of its interest in the matter, its knowledge of the pendency of said suit, and its refusal to avail itself of its rights. But neither the interest, the knowledge, nor the refusal referred to are disclosed by the record. It is said, finally, that the Southern Pacific Company owns all the stock of the Morgan Company, and, hence, that the judgment against the former is binding upon the latter. There is no attack upon the autonomy of the Morgan Company, and the evidence does not show that there are no other persons occupying the positions of stockholders in said corporation than the Southern Pacific Company. But if it were otherwise, the authorities on the subject of the status of what may be called “nominal” stockholders, and of corporations the stock of which is owned by one person, concur, to the effect, that a person is none the less a stockholder, for the purpose of participating, in that capacity, in the administration of the affairs of the corporation, that his stock has been transferred to him merely to qualify him (Beach on Private Corporations, Vol. 1, Secs. 220, 222; Cook on Stock and Stockholders, Vol. 1, Sec. 623; Taylor on Corporations (3rd Ed.), Sec. 614; Louisville Gas Co. vs. Kaufman, 47 S. W. Rep. 439-440; Pulbrook vs. Richmond Consol Mining Co., 9 Ch. L. R. 610), and that the fact that one person owns all the stock in a corporation does not destroy the corporation, or make him and the corporation one and the same person, but that the latter continues to exist as a separate entity, and the former continues to occupy the status of a stockholder. Cook on Stock and Stockholders (3rd Ed.), p. 9; Atchinson, etc., R. R. vs. Cochran, 23rd Pac. Rep. 151; Wilde vs. Jenkins, 4 Paige, 481; Central T. Co. vs. Kneeland, 138 U. S. 414; St. Louis, etc., Ry. vs. Williams, 138 W. Rep. 796; Southern Kansas, etc., R. R. vs. Tower, 21 Pac. Rep. 221; Button vs. Hoffman, 20 N. E. Rep. 668, 669; Belton praying, etc., 47 Ann. 1614, 1619.) We, therefore, conclude that the Morgan Company is not bound, as claimed, by the judgment heretofore rendered in the matter of State vs. Southern Pacific Company.

The remaining question is, whether, in the present condition of things, the Morgan Company has the right, under its charter, to carry on the warehouse business, as a substantive business, or as incidental to the business of any railroad of which it is the lessor, and which it is not, itself, engaged in conducting. If the contention of the counsel upon this subject be well founded, the defendant may establish and operate a public warehouse in every town and village in the State, however remote from, and disconnected with, its own railroad and steamship lines, and whether as independent of, or as incidental to, the business of railroads operated by other companies.

The authority relied on is an act of the Legislature, which is preceded by a title, and contains thirty-one sections; and both title and text are to be taken into account in determining whether the view thus presented should be sustained, since, it will be admitted that, the interpretation of particular provisions, is largely affected by the general purpose of the statute in which they are found, as appears from its title and from all its provisions, taken together, particularly when such statute is adopted, as in this instance, under the dominion of a Constitution, whicn requires that, “every law shall express its object or objects in its title.” The title of the act in question reads as follows: “An Act to incorporate Morgan’s Louisiana and Texas Railroad and Steamship Company, to expedite the extension, construction and maintenance, of a railroad between New Orleans, Louisiana, and the State of Texas, and between New Orleans, North Louisiana, and Arkánsas; to declare and define the powers and liabilities of said company; to grant the right of way for the construction of the road; to authorize the expropriation of land; to own and run steamships and other vessels; to construct and operate telegraph lines; and to vest in said company the right to exercise all powers incidental to, and necessary for, the building, and maintenanee, of railroads to the State of Texas and to North Louisiana and to Arkansas.”

And the following are some of its provisions, including all of those which refer especially to the warehouse business, the substance being given, unless it otherwise appears that the exact language is quoted, to-wit:

“Sec. 2. The following are the objects and purposes of this corporation, and the power to accomplish the same is hereby granted.”
First — To own and operate the then existing railroad from New Orleans to Morgan City.
Second — To build and maintain a railroad from Morgan City to the Sabine river, for the purposes of said road, to build bridges over said river and over Berwick Bay.
Thirdr — To build a railroad, with turnouts from its main line, into Northwestern Louisiana, there to connect with other roads running into Texas and Arkansas.
Fourth — To build a continuation of said railroad into Texas, under conditions to be imposed by that State.
Fifth — To own and run steamships and other vessels.
Sixth — To carry persons and property by said railroad and steamships and to receive compensation.
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Sec. 5. Said corporation is hereby authorized and empowered— ********
Third — “To construct, establish, or purchase, in this State, and, thereafter, to own, lease, maintain and use, suitable wharves, piers, warehouses, yards, steamboats, harbors, depots, stations and other works .and appurtenances, connected with, and incidental to, said railway and its connections; and to run and manage the same as the directors of said company may deem most expedient, and for the welfare of said corporation, subject to police powers of municipal corporations.”
Fourth — To take and transport, carry, and convey, persons and property upon its said railway and steamships and upon its boats, by power of steam and by other power, and to receive, for safe keeping, and to store, merchandise and property, in its yards or warehouses, and to receive,, for such transportation, safe keeping, or storage, such tolls and charges, as may, from time to time, be established, or authorized to be established, by the directors of said railroad company; to make advances of money; or credit, upon merchandise or property, for charges, made by other transportation lines” (upon freight-?) “to be transported upon its railways, steamships, steamboats or vessels, or to be stored in its yards or warehouses, to such extent and upon such terms and conditions as the directors .of said company may, from time to time, establish, or authorize to be established.”
********
“Sec. 27. That the said company, with the consent of owners of lands fronting upon any navigable water course, or, after such lands have been acquired by the company, by purchase, lease, donation, or m any other manner in accordance with the laws of the State of Louisiana, may erect, construct, and thereafter maintain and use, wharves, warehouses, depots, and other buildings and structures, m, or upon, the margins, or upon that portion of the margins reserved to public use, of any and all navigable rivers, bayous, or water courses, in the State of Louisiana, wherever the same may be deemed, by a majority of the stockholders of the company, necessary and requisite to the legitimate and convenient transaction of the business of the company. And, within the limits of incorporated cities, or towns, the Mayor and a majority of the Council of such city, or town, may authorize the construction of said wharves, or other buildings or structures, in front of all public squares, or streets, that may be bounded by such navigable watercourses, such use to be subject to such general rules as may be ordained by the proper local government.”

It will be seen that, neither the title, in which the purposes of the act are declared, in general terms, nor Section 2, in which those purposes are specifically declared, suggest the idea of a corporation to maintain warehouses for the storage of goods, as an independent business, or as a business incidental to that of a railroad other than the railroad to be operated by the corporation established by the act.

But, pretermitting the title and the section thus mentoned, the learned counsel for the defendant, after quoting, in their brief, the "Third" paragraph of Section 5, say: “It will be seen from the foregoing that the Morgan Company is not only given, by implication, as follows from the decision in the Southern Pacific Company case, the warehouse powers necessary and incidental to. railroad operation, but power is expressly given to it to construct warehouses, and to run and manage the same as the directors of the company may deem most expedient, etc. It is not .charged in the petition that the Morgan Company has erected warehouses not.incidental to, or connected with, its railroads, and the contrary is disclosed by .the record, filed with the petition, of the suit against the Southern Pacific Company. It would seem, therefore, that the wide powers as to running and managing such warehouses would give very wide discretion as to the employment of the warehouse space, at times when it should not be in actual use, even if we assume that the words — “connected with, and incidental to, said railway and its connections” — apply to “warehouses,” and not to the words which immediately precede them, namely; “other works and appurtenances.” We contend, however, that the contrary is the case; that the words — “connected with, and incidental to, said railway”— no more limit the right to construct warehouses than they limit the right to own and use steamboats.”

We are unable to concur in this view. To us, the plain meaning of the paragraph is, that everything which the company is authorized “to construct, establish, or purchase * * * and, thereafter, to own, lease, maintain and use,” from “wharves,” which begins the enumeration, to “appurtenances,” which ends it, is governed by the word “suitable,” which precedes such enumeration, and the words “connected with, and incidental to, said railway, and its connections,” which follow. And, hence, that, as the company is authorized “to construct, establish, or purchase * * * and, thereafter, to own, lease, maintain and use,” only, such wharves, piers and warehouses” as are “suitable” for, and “connected with, and incidental to;” its railway and connections, the proposition that the directors are authorized to run and manage such wharves, piers, and warehouses, etc., for some other, independent and totally foreign, purpose is untenable. But, if it were otherwise, and the learned counsel had succeeded in showing that according to the text of the act, the defendant was authorized to conduct a warehouse business as a substantive business, they would, at the same time, have shown that the text was, in that respect, broader than the title, which refers only to the railroad, telegraph, and steamship business.

“But,” say the learned counsel, “be that as it may, all doubt as to the right to warehouse goods to the extent to which the Morgan Company is now doing is taken away by the fourth clause of Section 5, of the charter, which reads as follows (and the clause is quoted in the brief.)

But the “ warehouses ” referred to in the paragraph thus relied on, like those referred to in. the preceding paragraph of the same section, and in Section 27, which follows, are the warehouses which the company is authorized to “construct,” “maintain,” etc., as "suitable” for, and "connected with, and incidental to, the railroad business, for the carrying on of which it is established, and, whilst the language of the paragraph in question is, in some respects, broader than that of the preceding paragraph, it does not justify the conclusion, the title and specifically declared purposes oi the act being considered, that the law makers thereby intended that the warehouses which are to be constructed' and- maintained for one purpose should be operated for another.

We, therefore, conclude, the validity of the lease to the Southern Pacific Company not being called in' question or passed on, that, upon the-case, as presented, the defendant is without authority to carry on the business' of public warehouseman, as an independent business, whether under its charter, or under Act No. 156 of 1888, or otherwise, and that it is likewise without authority to carry on such business as connected with, or incidental, to the business of the railroad operated by the Southern Pacific Company, of which it is lessor, or that of anv railroad operated by any other person or corporation than itself. The judgment appealed from, we think, sufficiently expresses this idea, and it is affirmed.

Breaux, L, concurs in the decree.

Rehearing refused.


source: Caselaw Access Project

author: Monroe, J.

license: Public Domain

text:
    No. 13,783.
    William H. Howcott vs. George S. Petit.
    Syllabus.
    1. In a petitory action, the defendant is bound to plead all the titles under which he claims, and cannot evade the'Judgment rendered In such action by-setting up a title which he might have urged by way of defense thereto.
    2. The1'case is the same where, the defendant being the real party in interest, the title subsequently relied on stands in the name of another person who . holdq as his representative and for his accommodation arid account.
    3. In interpreting a petition, in order to determine whether it discloses a cause of action, all of the allegations are to be considered together and with reference to the prayer.

      REPEAL from Civil District Court, Parish of Orleans — Ellis, J.

      Richardson it Soule, William Winans Wall and Kernan & Gowland, for Plaintiff:, Appellant.

      George W. Flynn, for Defendant Appellee.

      John P. Sullivan, for Warrantor, Appellee.
   Statement.

The 'opinion of the court was delivered by

Monroe, J.

The petition in this case, interpreted in collection with the exhibits annexed to, and made part of, it, alleges: that, in June, 1893. Henry C. Dibble brought a petitory action against Joseph D. Taylor, praying to be declared the owner of certain real estate in New Orleans, of vjhich Taylor was in possession and of which he claimed to be the owner by virtue of certain tax titles; that, in March, 1895, there was .judgment in favor of said Dibble and against Taylor decreeing the former -to be the owner of the property and annulling the tax title set up, by the latter, which judgment was affirmed by the Court of Appeal upon February 7th, 1896; “that, after said judgment was rendered, and pending the appeal therefrom, the said Taylor produced an adjudication by the State tax-collector, on the 7th day of November, 1889, under A.ct 82. pi 1884. in the name of J. C. Molyneaux, and caused an act of sale to be passed from the State tax-:epllector to said Molyneaux, on the 31st.day.of January, 1896,. ? * * .and caused it to be recorded on the 4th. day ,of. February, 1896. * * ■ * . Petitioner avers that said title was a fraudulent simulation and was mad ^pendente lite, and said tax adjudication was made to one Peter Molyneaux, acting for said Taylor, himself, as will appear by his 'sworn testimony in Exhibit 'C” (annexed to and made part of the petition), “and the said tax title was placed in the name of s.aid, James C. Molyneaux for the .purpose of evading the effect of said judgment against the ..said Taylor, and it .was afterwards pla.ced in the name .of .said George Pettit, for the same purpose. .That said Pettit could acquire no legal title from said Molyneaux, who had none, and said sale was in violation of Article 2453 of the Eevised Civil Code, and was not an innocent purchaser, and he paid nothing for it, and took said property in fraudem legis, in his name, without inquiring as to the tille, without seeing it, and only to accommodate said Taylor.”

The prayer ia, that the petitioner be held to be the owner of the property and that the title set up by Pettit be decreed a fraudulent simulation, or annulled as fraudulent. The defendant, Pettit, filed an exception of no cause of action and a plea of estoppel, and, afterwards, filed an answer calling J. O. Molyneaux in warranty, and Molyneaux, having been, in the meanwhile, interdicted, appeared through a curator ad ivoc, and also excepted, on the ground that the petition discloses no cause of action. These exceptions were overruled, but the case was then transferred to another division of the Civil District Court, the judge of which reinstated them, to be tried with the merits, and, thereafter, maintained the exception of no cause of action, and dismissed the sui t. whereupon the plaintiff appealed.

Opinion.

We are of opinion that the judgment appealed from is erroneous. Taking the averments of the petition to be true, the plaintiff’s author. Dibble, sped Taylor for the property in controversy and thereby subjected him to the necessity of setting up whatever titles he may have expected to rely on. Taylor, according to the petition, was, at that time, the real party in interest in the matter of the adjudication of November 7th. 1889. the adjudicatee having been merely his agent and representative. who allowed the use of his name for the accommodation of Taylor. and. for his accommodation, transferred the title to Pettit, who allows his name to be used for the same reason; so that, upon the face of the papers, it appears that the title under which Pettit now claims the property is held for the account of Taylor, and was so held by Molyneaux when the suit brought by Dibble was tried and decided, and it, therefore, appears that Taylor, through Pettit, is now setting up a title, after final judgment against him. which he was bound to set up as a defense to the suit in which that judgment was rendered.

This is inadmissible.

“In a petitory action the defendant is bound to plead all the titles under which he claims to be owner, and a final judgment rendered in favor of plaintiff may be pleaded as res adjudicata against any title which the defendant was possessed of at the time, but omited to plead.” Shaffer vs. Scuddy, 14th Ann. 575.

“Courts of justice, in stating the rule, do not always employ the same language, but, where every objection urged in the second suit was open to the party, within the legitimate scope of the pleadings, in the first suit, and might have been presented in that trial, the matter must be considered as having passed in rem adjudicatem, and the former judgment, in such ease, is conclusive between the parties.” Aurora City vs. West, 7 Wall. 82.

If it be true that Molyneaux held, and that Pettit now holds, the title which the latter sets up, Pettit may defend, upon the merits, upon that ground. But if Pettit is merely Taylor under anpther name, it makes no difference whether such title was derived from the State or from Dibble, himself, or from any other source, the result is the same; for, if Taylor wished to rely on it for the purpose of showing, as against Dibble, or those claiming under him, an outstanding adverse title, whether in himself or in some other person, or in the State, the time for him to have urged it was when he was called upon to defend the suit m which Dibble alleged that he held a better title than Taylor, or anyone else. And, failing to urge it at that time, he cannot be heard, either in his own name or in the name of another, to urge it now.

“But," it is said, “this is not a question of title set up by way of defense, but of an outstanding adverse title set i’oitli by the plaintiff, himself, upon the face of his petition, from which it appears, from his own averments, that he is not the owner, and has no standing in court to prosecute a suit for the recovery of the property claimed by him.” .And, if we could accept the interpretation which the defendant’s counsel place upon the petition of the plaintiff, we should be compelled to recognize the force of their deductions. That is to say, if we considered that, upon a fair construction of the plaintiff’s petition, he intended to say that the title to the property in question became vested in the State b.v virtue of the adjudication of November 7th, 1889, and has never been divested since that time, but that the conveyances, from the State to Molyneaux and from Molyneaux to Pettit, were fraudulent simulations. quoad the State as well as the transferrees named, there would seem to be no answer to the proposition that, such averments being taken as true, it must follow that the State is still the owner of the property, and hence, that the plaintiff, who makes those averments and yet sues to recover the property, discloses no cause of action. But, we do not interpret the plaintiff’s petition in that way. We understand it to mean, not that the State was, or is, involved in the simulation charged, but that the State has parted with its title to the property and that the simulaion was, and is, a matter between Taylor and the adjudicatee and transferree, who represented, and stood for, him, for the purposes of the adjudication and transfer.

It is, therefore, ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed and that this cause be remanded to be proceeded with according to law, the costs of the appeal to be borne by the appellee and those of the lower court to await the final judgment.


author: Breaux, J.

text:
    No. 14,098.
    Charles Bonin vs. Town of Jennings et al.
    Syllabus.
    An overruled dilatory exception, general in its terms, will not be re-opened in order to consider points dilatory in their nature, which should have been timely pleaded. Generally, the pleader is held bound to plead all his dilatory pleas in due time. Moreover, it is not manifest that there is sufficient ground to sustain the exception.
    For reasons assigned in the case of MeFarlain vs. Town of Jennings, No. 14,007, the judgment is affirmed.
    APPEAL from the Fifteenth Judicial District, Parish of Calcasieu. — Miller, J.

      Sompayrac & Toomer, for Plaintiff, Appellee.

      Cline <& Cline, for Defendants, Appellants.
   The opinion of the court was delivered by

Breaux, J.

The facts are the same in this ease as those in McFarlain vs. Town of Jennings, No. 14,097, just decided, with this addition, that defendant attacks the injunction on the ground of informality of the affidavit.

In the District Court defendant filed an exception in general terms looking to the dismissal, on the ground of informality generally. The District Court overruled this exception. Then another exception was filed to cure the defect in not having specially pleaded against the form of .the affidavit.

As a matter of practice, we will take occasion to say that all grounds going to the dismissal should be urged by way of exception in due time. Moreover, it does not occur to us that the exception should have been sustained.

For the reasons assigned in the case of McEarlain vs. Town of Jennings, No. 14,097, just decided, the judgment appealed from is affirmed.


text:
    No. 14,018.
    R. T. Clifton et al. vs. W. E. Hobgood, Marshal, et al.
    Syllabus.
    1. Articles 209 and 242 of the Constitution of 1879, being in pari materia are to be construed together, and, so construed, contemplate certain public improvements which aré to be confined within the limits of the taxing districts upon which the special tax is to be imposed and certain other public improvements and railway enterprises which are not to be so confined.
    2. Under those articles and the subsequent legislation upon the subject of special taxation (being Acts 84 of 1880, 35 of 1886, and 153 of 1894) it was competent, upon obtaining the assent of the property tax-payers, in the manner required, to impose a special tax in aid of a railroad which neither passed through, nor terminated in, the municipality taxed.
    3. The legislation referred to contemplates and provides for the imposition, at one time, and for the entire term specified in the petition of the tax-payers, of the tax to be levied and the levying, or collection, of such tax, annually, during such term.
    APPEAL from the Twelfth Judicial District, Parish of DeSoto.— ■ Lee, J.

      George E. Head, for Plaintiffs, Appellants.

      Alexander & Wilkinson, for Defendants, Appellees.
   The opinion of the court was delivered by

Monroe, J.

The plaintiffs, who are property tax payers of Mansfield, in the Parish of DeSoto, seek to enjoin, perpetually, the collection of a five-mill tax, voted by the property taxpayers of that town, for a period of ten years, in aid of a railroad, and to have the same decreed illegal and unconstitutional. The parties made defendant are, the Mayor, Aldermen and Marshal, of the town, the Nansas Oity Southern Railway Company, and the Guardian Trust Company, the latter being the transferree of the tax.

The defense' is, that an election was 'held and that the tax in question was voted and levied under the authority of, and in conformity to, law, and to the petition of the property taxpayers, including several of the present plaintiffs; that the road was built as contemplated, and accepted by the town, and that the plaintifEs acquiesced therein, and, for Several years, have acquiesced in, and paid, the tax, and are now estopped to deny its validity. The defendants, also, plead the prescription of three months, under Act No. 106, of 1892. There was judgment in the District Court in favor of the defendants and the plaintiffs have appealed. The grounds mainly relied on for the reversal of the judgment are:

1. That the taxpayers of a town are without legal or constitutional right to vote a tax against such town in aid of a railroad to be constructed outside of its corporate limits.
2. That if the voting of the tax, in this instance, was legal, the defendants are, nevertheless, without right to collect such tax, for the reason that it has not been levied as required by law.

The questions to be determined arise under certain provisions of the Constitution of 1879 and statutes regulating the enforcement thereof. Article 209 of that Constitution, after regulating the rate of State taxation, for general purposes, provided, “that, for the purpose of erecting and constructing public buildings, bridges, and works of public improvement, in parishes and municipalities, the rates of taxation herein limited may be increased when the rate of such increase and the purpose for which it is intended shall have been submitted to a vote of the property taxpayers of such parish, or municipality, entitled to vote under the election laws of the State, and a majority of the same voting at such election shall have voted therefor.” Article 242 provided that “The General Assembly shall have power to enact general laws authorizing the parochial or municipal authorities of the State, under certain circumstances, by a vote of a majority'of the property taxpayers in number and in value, to levy special taxes in aid of public improvements or railway enterprises; provided, that such tax shall not exceed the rate of five mills per annum, nor extend for a longer period than ten years.”

Act No. 84, of 1880, provides, in substance; that elections concerning special taxation shall be ordered by the authorities of a parish or municipality upon the petition of one-third of the property taxpayers, and that, a majority of the persons entitled to participate voting therefor, a special tax shall be levied in aid of the construction of public buildings, bridges, and other works of public improvement, within the limits of the parish or municipality, or of bridges over streams dividing contigious parishes, or of public improvements, or railway enterprises, “extending within, or beyond, the limits of the State.”

Act No. 35, of 1886, is somewhat more specific in prescribing the form and substance of the petition for the election. It limits the right to extend aid by special taxation to Louisiana corporations, requires a majority in value, as well as in number, of property taxpayers to carry the election, and authorizes non-resident taxpayers to vote, in person, or by proxy.

It provides that, where the result of an election is favorable to the tax, the parish, or municipal, authorities “shall, immediately, pass an ordinance levying such tax, and for such time as may have been specified in the petition, and shall designate the year in which such taxes shall be first levied and collected.” In a subsequent section, it further provides that the Police Jury * * * shall, when the vote is in favor of the levy of such taxes, levy and collect, annually, in addition to other taxes, a tax upon all taxable property * * * sufficient to pay the amount specified to be paid in such petition; and such Police Jury * * * shall have the same power to enforce and collect any special tax that may be authorized by such election as is, or may be, conferred by law * * * for the collection of other taxes,” etc.

The act also authorizes the assignment of the right to receive the special tax, with the proviso, however, that no such tax shall be paid until the proposed railway shall have been completed and in operation “to such point, in such parish, city, or incorporated town, as may” have been specified in the petition for the election, and it repeals all acts in conflict with its provisions.

Act 106, of 1894, provides: “Section 1. That any election held under Articles 209, 242 and 250 of the Constitution of 1879 and the laws to carry the same into effect may be contested by any party, or parties, in interest, on grounds of fraud, illegality, or irregularity, before anv court of competent jurisdiction.”

“Section 2. * * * any suit under the provisions of this act shall be brought within three months after the promulgation of the result of the election contested.”

Act 153, of 1894, amends the previous legislation only in so far as to provide for elections and for the imposition of special taxes in the wards of the parishes as well as in parishes and municipalities.

It appears from the evidence that, at a meeting of the Board of Aldermen of the town of Mansfield, held upon February 13, 189G. there was presented to that body a petition, signed by more than one-third in number and value of the property taxpayers of the town, including, as we understand it, several of the plaintiffs now before the court; which petition alleged that great benefit would result to the town and its citizens from the construction of a railroad through the Parish of DeSoto, from North to South, “with depot and grounds located at, or near, the town of Mansfield;” and prayed that an election be ordered and a special tax of five mills per annum, be levied, for ten years, on all the taxable property of the town, in aid of the same, such tax to become due and exigible from and after the completion and operation of the road in the parish, and the road to be completed and operated before the 1st of October, 1898. It further appears that the Board of Aldermen ordered the election as requested; that the election was held in March, 1896; that it resulted favorably to the' levying of the tax; and that an ordinance was adopted levying the tax of five mills, annually, for ten years from January 1, 1897, “the said tax to be paid over, as collected, from year to year, to the said railway company, its successors and assigns, subject to the conditions and provisions of the petition of the property taxpayers.” It is admitted that the Kansas City, Shreveport and Gulf,Railway Company began and completed the work of constructing the road, and that the road was in operation, within the time specified in the petition of the taxpayers, and that passenger and freight depots were established neat Mansfield, though not within the corporate limits of the town, the evidence showing that the depots are about a quarter of a mile outside such corporate limits, but are within the settled suburbs. It is also admitted that the road, as thus built, is part of a continuous line from Kansas City, Missouri, to Port Arthur, on the Gulf of Mexico.

I.

We agree with the learned counsel for the plaintiffs that the two articles oí the Constitution which are called in question, dealing, as they do, with the same subject matter, should be construed together, McKenzie vs. Tax Collector et als., 39 Ann. 947; Citizens and Taxpayers vs. Williams, 49 Ann. 422. But in thus construing them, we must give to each its utmost effect,.so far as that can be done without bringing it into conflict with the other. Observing this rule, our conclusion is, that, whilst the two articles, taken together, contemplated a certain class of public improvements which was to be confined within the limits of the parish or municipality voting the tax> they also contemplated another class which was not to be so confined, and that a railway enterprise falls within the latter class, or is a class of itself. This view of the matter was distinctly recognized in the act of 1880, which was repealed by the Act of 1886 only in so far as its provisions were in conflict with those of the later act. There is, no doubt, some basis for the argument that the provisions of the act of 1880, relating to extra territorial railway enterprises, are in conflict with the provision of the Act of 1886, to the effect that “no such tax shall be paid * * * until the railway shall be completed and in operation to such point in such * * * incorporated town, as may be specified in the proposition set forth in the petition,” etc. But, when we consider that the right to impose the special tax was not limited by the Constitution to railway enterprises actually terminating in, or passing through, a parish, or town, and is not so limited by those sections of the Act of 1886 which authorizes the ordering of the elections and the levying of the tax, it becomes necessary that the provision in question, before being accorded the effect claimed for it, should be construed with the-sections referred to, and with the Constitution, and that we should, in that way, ascertain the meaning and purpose of the whole legislation.

It will hardly be denied that, whilst an electric light plant in Shreveport would confer no benefit on the town of Mansfield, a railroad between the two places might be of great advantage to both, though not entering the corporate limits of either. And this, we take it, was what the framers of the Constitution had in view when they failed to restrict the right to impose special taxes in aid of railways to those terminating, or to be established, within the districts to be taxed. And, equally is this true of the legislative action of 1880. When the General Assembly again took the matter up, in 1886, it was provided, by the first section of the act then adopted, that, “Whenever one-third of the property taxpayers * * * shall petition * * * the municipal authorities to levy a special tax in aid of any railway-company or corporation organized under the laws of this State, the said * * * municipal or town authorities shall order a special election,’-' etc. And there is no intimation, either there or elsewhere, in the act, until we reach the particular clauses under consideration, that it was the purpose to restrict the right of the taxpayers, to provoke an election and to tax themselves, to cases where the railway to be aided was to pass through, or to terminate within, the corporate limits of the town. It is, therefore, sufficient, by the terms of the Act of 1886, to entitle the taxpayers to the election for which they petition, that the railway company which they propose to aid shall have been organized under the laws of this State.

The question, as the judge a quo well puts it, is one of benefit vel non, and if, in a particular case, the tax-payers are of opinion that it will answer their purposes to have a railway company which connects them with the rest of the world build its road, and establish its depot, within a few- hundred yards of their town rather than through the heart of it, we are not prepared to hold that the act of 1886 denies them the right, contemplated by the Constitution, to impose a tax upon their property in aid of such road. The particular provision of the statute which we are now considering was intended, as we think, to secure the completion and operation of the aided road in the manner contemplated in the petition of the taxpayers as a condition precedent to the recovery of the tax by the corporation to be -aided, but not as a limitation upon the right of the taxpayers to call an election and vote a tax for the aid of a road the construction of which will be to their advantage, though neither passing through, nor terminating within, the corporate limits of the town upon which the tax is to be imposed.

This being the case, we conclude, upon the facts stated, that the election of which the plaintiffs complain was authorized by the Constitution and laws of the State and is not open to the objections urged.

II.

Both the Act of 1886 and the Act of 1894 provide that, where the election results favorably to the tax, the parish or municipal authorities “shall, immediately, pass an ordinance levying such tax and for such time as may be specified in the petition; and shall designate the year in which such tax shall be first levied and collected.” The word “levying" is thus, obviously, though incorrectly, used in the sense of “imposing” and, so construing it,,the Board of Aldermen of the town of Mansfield, after ascertaining the result of the election, passed an ordinance “levying” the special tax voted, for ten years, as specified in the petition of the taxpayers, and designating the year in which it should “first be levied and collected.”

In a subsequent section, the word “levy” is again used in connection with the grant of authority, and the imposition of the obligation, to collect the special tax, annually, and in the same manner as other taxes are collected, and it is thus used in the sense of “collect" and does not, therefore, conflict with, but is in furtherance of, the preceding provisions.

The charge contained in the petition, that the election in question was carried by misrepresentation was not insisted on in the original brief filed, on behalf of the defendant and is not sustained by the evidence. The conclusions which have been stated render it unnecessary that we should pass on the defendant’s pleas of prescription and estoppel.

Judgment affirmed.

Rt.avchakd, J., takes no part, having been originally of counsel.


text:
    No. 14,097.
    A. D. McFarlain vs. Town of Jennings.
    Syllabus.
    1. In view of the special power expressly granted and the absence of legislative provision regarding enumeration required to enable a municipal corporation to enforce a grant of'power, it is competent for the municipal authorities, by regular methods, to ascertain and make public the number of persons residents of the municipalities.
    2. But the court will not assume that the statute has been complied with unless it be made to appear by sufficient and competent testimony obtained in some regular way that the number of the population was more than two thousand at the date that an ordinance was passed to enforce the power.
    3. While deciding that the municipality has the power to ascertain the number, the court holds that the methods required were only followed after the plaintiff’s Injunction had been issued and not in time to affect the injunction.
    4. The courts have the power to enjoin the enforcement of municipal ordinances relating to public order and health, even though penal in their nature. 50 A. 521..
    5. 'As relates “ to irreparable injury,” the allegations made the showing sufficient, and the objection on the ground that it was not, is not sustained.
    APPEAL from the Fifteenth-Judicial District, Parish of Calcasieu. — Miller J.

      Sompayrac '& Toomer, for Plaintiff, Appellee.

      Cline & Cline, for Defendant, Appellant.
   The .opinion of the court was delivered by

Breaux, J.

The town of Jennings adopted an ordinance relating to the running at large of stock within; the town. y\Te are informed by the record .that after it' had been adopted, the Mayor had a census of the -town taken by his daughter,; and the Council afterward ordained a census to be- taken by- a census taker regularly appointed. The census made by the Mayor’s daughter1 shows that the population of Jennings was two thousand and four. The census taken a short time afterward by the census taker of the Council shows that two- thousand and thirty persons resided in Jennings between June 1st and 9th, 1901.

The Mayor and Council claiming that the number of inhabitants is more than two thousand, seek to have the stock ordinance enforced. In accordance with their order the cows of plaintiff were impounded, and plaintiff obtained an injunction and claimed damages against Jennings and its marshal. The census of the United States shows that the population of Jennings-was fifteen hundred and thirty-nine in 1900.

The ease was put at issue and.tried. '■ Judgment was pronounced for plaintiff sustaining his injunction and allowing him damages against the,town intjie gum of sixty-five dollars. Defendant appeals.'

: Manifestly; -the legality of the ordinance in Question • depends upon the' extent’to'which the inhabitants can be held bound by the census taken at the -instance of the municipality, of Jennings. If that census is -to .be taken as fixing the number of i'nhabi'tánts, then the town has at: this time the required number to bring it within the scope of Section 17, of .Act 136 of 1898, which confers upon the Mayors and Aldermen of cities - and towns, having more thán two thousand inhabitants, the'power'to prevent or to regulate the roaming at large of animals and cause them to he impounded. (§ 4th, Sec. 17 of the cited Act above.) ■ •

If, on the other hand, the census of the United States is to be taken instead, as conclusive of the number in the town, then the Mayor and Aldermen have not, because of the insufficiency in number, the power to have stock impounded that are found roaming in the town.

Under the Governor’s proclamation issued in the year 1900, in pursuance of the provisions of Act 136 of 1898, Jennings having the requisite number of one thousand inhabitants, is a town, that being the number' necessary to its incorporation under that Act. The municipalities under the Act just cited are to be classified according to their population .as shown by the United States’ census; the class is changed in accordance with the provisions of the statute. '

In Section 8 of this statute special authority is conferred upon the Governor in matter of classification when it shall be shown by reference to an Act of Congress or Legislature that the population of a city, town, or village has increased or diminished so as to take it out of the class to which it previously belonged. It is then made his duty, after proper investigation, to make a correct classification of the erroneously classified corporation. The authority of the Governor, it will be^ observed, is confined to classification of these cbrporations into cities, towns and villages. The law .contemplates, evidently, classifications by the executive based upon the number required to constitute a city, town, or village, but no reference is made in the statute to-any other classification by: the executive or to ascertaining ■' any other number except those needful to establish classification of the corporation' into a village, town, or city:

Yet, without regard to classification by the Governor, certain powers are delegated to designated municipalities when the number of its members exceed two thousand, and among these powers is the power delegated to impound stock. But the. statute does not expressly authorize and direct how to find out and determine how many persons are within the town when it seeks to enforce powers delegated to towns of more than two thousand inhabitants.

As relates to the ascertaining if in the town there are as many persons as just mentioned, no reference is made to a census whether by the United States or by' the State. The statute is absolutely silent upon the subject. The question arises, should the'number taken from the census be controlling, in the absence of statutory direction ? If the population, can. only be determined by the United States’ census, it would result in not carrying the legislative will into effect. It’ might well occur that a town would have the requisite number and yet for a period of nine or more years the law would remain a dead letter. As the law reads at present, it contains no reference to a census, as relates to the special power in question, and we take it that without a special enactment the census is not exclusive of all other methods of ascertaining the number of members of a corporation.

It must, in some way, be ordered that the census of the United States be taken as a basis in determining the number of a municipality; and if we were to take the census as determining the question a town with two thousand inhabitants at this time would have to wait until the next census before attempting to exercise the power conferred, and even then it would require some legislation to render it possible to determine the number by reference to the census of the United States.

Recently, in another jurisdiction, it was held that the failure of the Legislature to point out a method to determine the number of persons should not be allowed to destroy the power granted. We quote: ' “In this case it is manifest that the provision can be determined by competent testimony outside of any legislative enactment;” that it was a question for the court to determine. State ex rel. Smith vs. Neal, Vol. 65, p. 188, Pacific Reporter.

In another case and regarding number of population, another court said: “It is manifest that the provision can be determined by competent testimony outside of any legislative enactment.” Anderson vs. Whetcome Co., 33 L. R. A. 137. The same rule was sustained in Kumber vs. Boon, 37 P. 383.

In the first decision cited above, the court said regarding a question similar to the one here: “We think that in the case under discussion a rule is equally prescribed which is capable of enforcement. ' In this case the ascertainment of the amount of the population in the town or city is for the courts and not for the Legislature.” In each of these cases it became necessary to establish the population of municipal corporations in which the law making power had failed to make provision for ascertaining the number of persons.

We do not go to the extent of holding that the question is not for the Legislature, and in that respect we do not agree with the cited eases, nor do we think that, as between a municipality and its members, the number of the population may be ascertained as any other fact. There must he some regular method followed in ascertaining the number of the population. We think legislation is desirable to provide means for ascertaining the number of persons, but where a power is granted and the law-making power is silent, as in this case, it then becomes a question to be ascertained by a method usually followed in the course of municipal administration. We cannot agree with counsel for plaintiff and appellee that the census of the United States must be taken to determine the number of population of a town, and that the municipality is without authority in the premises. Having concluded as before stated as relates to the authority of the town to establish the number, we will ascertain if the municipality has complied with needful regulation to enforce the power.

But there must be an organized method followed by the municipality in determining the number, and this we have not succeeded in finding. It does not appear of record that the ordinance relating to the running at large of stock was made public by advertisement and no attempt was made to validate this ordinance after a census had been taken. No census was made or enumeration taken by the town prior to the filing of appellee’s suit. We have noted that a young lady had taken a census. The record shows that she acted for the Mayor personally. There is no question but that she made every reasonable attempt to perform the puty. It remains that it was only a private census. Subsequently an ordinance was adopted and a census was taken, only, however, it is conceded, between the first and ninth of June, 1901, a number of days after the injunction had been issued. We think it was too late to affect any of the rights of the plaintiff and appellant. A corporation may ascertain the number of its population by following the methods it follows in all other proceedings affecting its members. We are convinced that this was not done prior to the institution of this suit.

We cannot agree with the proposition that an enumeration made within a month of the adoption of the ordinance enjoined and showing the required population is sufficient to establish the requisite number at the time of the adoption of the ordinance, if there be no evidence to the contrary. The fact should have been established and made public before attempting to enforce the ordinance.

The next contention of defendant and appellant is that the execution of a municipal ordinance is not subject to injunction. We do not think there is any weight in this defense. Illegal ordinances may be enjoined. This was the purpose of the plaintiff in injunction. The fact that it relates to a public regulation does not add any strength to the contention. This question was considered and decided adversely to defendant and appellant in Lecourt vs. Gaster, 50 Ann. 521.

The next contention of appellant is that the irreparable injury, as alleged, was not imminent. We have not discovered good grounds to sustain this contention.

Plaintiff’s property had been impounded and was to be disposed of had not an injunction been taken. This of itself presents an issue of possible irreparable injury sufficient to satisfy the court that there was good ground for the injunction.

For these reasons it is ordered, adjudged, and decreed, that the judgment appealed from be affirmed.


author: Blanci-iard, J.

text:
    No. 13,709.
    Miss Josephine Beugnot vs. Henry Tremoulet.
    Syllabus.
    Tills case directs method of execution of former judgment of this court.
    APPEAL from the Civil District Court, Parish of Orleans— Ellis, J.

      Solomon Wolff, for Plaintiff, Appellee.

      Charles Louque, for Defendant, Appellant.
   The opinion of the court was delivered by

Blanci-iard, J.

This cause is for the second time here on appeal.

In December 1899 the first appeal was decided. See 52 La. Ann. 455.

The decree of this court then was as follows:

“It is ordered and decreed that the judgment appealed from, in so far as it allows defendant the charge of $411.49, being 2% per cent, commissions on $16,459.64 collected and administered by bim, be affirmed, and in other respects the said judgment be reversed and the case remanded to be proceeded with according to the views herein presented and the law.”

The opinion of the court on that appeal settled several matters then in dispute and at issue, and removed the same beyond the domain of further controversy.

Among others, it settled that the defendant became the agent of the plaintiff to act for her, represent her, collect, receive and receipt for moneys coming to her from her grandfather’s estate, and that the agency had continued for about eleven years when the suit was filed, April, 1898.

It settled that defendant during this agency collected from time to time various sums of money for account of the plaintiff, and made her various remittances extending through the period of the agency.

It settled that funds of the plaintiff which had come into defendant’s hands, and which had not been remitted her, were mingled with his own funds, and that he used his own money and that of plaintiff, thus mingled, as a common fund with which he purchased stocks, bonds, etc., in his own name and for his sole account.

It settled that defendant having used his principal’s funds in his own affairs was answerable to her for interest on the same, and that he should account to her for five per cent, per annum interest upon such funds of hers so used from the time the same were so employed, and this according to the rule laid down in O. C. 2164 — that of partial payments.

It settled that the interest to be thus accounted for should not be computed beyond the date of the payment by defendant of the amount awarded against him by the trial court — this for the reason that, had the plaintiff at the time she filed her suit properly set forth her demand against him, there would have been final settlement of these affairs on the first trial, and that since it was largely because of her fault in pleading the ease had to be remanded, she should not in good conscience be permitted to demand interest for the delay which she herself had occasioned.

The case was- remanded that plaintiff might amend her pleadings to present her demand in proper form, and in order that the parties litigant might, contradictorily with one another, fix the amount and dates on which and from which interest was to be computed, credits given, etc. In other words, to have adjusted on the second trial the accounts between them on the basis laid down in the opinion of the court.

In his account filed on the former trial of the ease, defendant had made no allowance of interest to plaintiff on funds of hers he had received and used. Ilis account merely gave amounts of moneys received for her and dates when received, and amounts remitted her from time to time and the dates of remittances. He having mingled her funds with his own and employed the same for his own use, was answerable for interest thereon, and this court might have, in its former judgment (and said so at the time), taken the account as a basis for a decree against him, figuring out what he owed on an allowance of interest against him according to the rule oi partial payments.

But it was considered that defendant may not have used for his own purposes all the funds of the plaintiff which his account showed and which had not been remitted, and might be able to make a satisfactory showing in this regard on another trial, thus, perhaps, relieving himself of interest on part of the amount. Accordingly, partly at least in his interest, in order that he might make this showing if it were possible to make it, the cause was remanded.

When the case was thus returned to the trial court, plaintiff filed a supplemental petition amending her pleadings in conformity with the views expressed by this court.

The prayer of this petition was that an accounting be had between herself and the defendant and that there be judgment in her favor and against the defendant for such sum as might be found still due her under the view taken by this court in its former opinion.

Defendant could have met the issues thus presented by filing an amended account of his stewardship, made out in conformity with the rules laid down by the judgment of this court.

All the facts necessary to this end were peculiarly within his knowledge.

He did not do this, but, instead, filed exceptions and answer seeking tó bring again in contest matters settled previously, and urging grounds against the validity of the judgment rendered by this court.

These require no notice at our hands.

The parties went to trial and as the result of the sanie the District-Judge rendered a judgment which was tantamount to continuing the case in order that the defendant might file an account of his agency to conform to the facts found by this court in its former opinion, and the views therein expressed, and directing him so to do,

From this judgment defendant prosecutes this appeal.

We find no error in the decree of the trial court and the same is affirmed.

Should defendant fail to avail himself of the opportunity thus for the second time offered him of recasting his account on the lines laid down by this court and in conformity with its views, it is ordered that the District Judge proceed to an adjustment of the accounts between these parties litigant, taking as a basis for same the former account filed by the defendant and calculating legal interest against him on all sums received by him, from the dates of reception, according to the rule of partial payments.

It is further ordered that the costs of this appeal be borne by the defendant.

Rehearing refused.


text:
    No. 13,820.
    Succession of A. L. Hasling.
    Syllabus.
    Where a plaintiff in rule contemplates appealing from an adverse judgment, based upon an exception, or speda' defense, which has not been reduced to writing and is not specifically r<i erred to in the judgment, the onus is upon him to take suen steps as may be necessary to present his appeal intelligibly, and if, from the transcript, it is impossible for this court, by reasonable inference or otherwise, to determine what exception, or what special defense, was sustained by the judgment appealed from, the appeal will be dimissed.
    APPEAL from the Civil District Court, Parish of Orleans — Ellis, J.

      Theodore Cotonio, for Administrator, Plaintiff in rule, Appellant.

      Harry II. Hall, for Francis Martin, Defendant in rule, Appellee.
   The opinion of the court was delivered by

Monroe, J.

It appears, from such evidence as we find in the record in this case, that the decedent died in New Orleans in 1895; that, at the time of his death, he was in possession, as owner, of certain real estate, improvements and furniture, at Biloxi, in the State of Mississippi, and was engaged in a lawsuit concerning the title to said real estate and improvements; that, after his death, an instrument, purporting to be his last will, was filed in the probate court of Harrison County, Mississippi, and that, thereunder, Francis Martin was put in possession of said property, as instituted heir, and was substituted for the decedent, as plaintiff, in said lawsuit; that said Martin insured said improvements and furniture in the Palatine Insurance Company, Limited, of Manchester, England, in the name of the estate oí A. L. Hasling, and paid the premium thereon, and has renewed said insurance and paid the renewal premium from year to year since then; that, in 1899, Lawrence Andrew Hasling, a son of the decedent, opened the succession of his father, as an intestate succession, in the city of New Orleans, and caused himself to be appointed administrator, and that he then filed suit in New Orleans, individually and as administrator, against said Martin, attacking' certain transfers of real estate in this city, said to have been made by his father to said Martin, and also attacking the alleged will and praying, for reasons set forth in the petition, that said transfers and will be decreed null and void. And that, thereafter, he took a rule, in the succession, as thus opened in New Orleans, alleging that property in Biloxi, Mississippi, belonging to the estate had been destroyed by fire, upon November 9th, 1900, that said property was insured under policies which are in the possession of said Martin, and that mover, alone, is authorized to make proofs of loss and collect said insurance, and praying that said Martin be required to surrender said policies. Upon the trial of this rule, the policies in question appear to have been produced in answer to a subpoena duces tecum, issued at the instance of the mover, and, though not specially offered in evidence by either side, we find an agreement to the effect that they were to come up in the original, or that copies would be furnished; but, neither the originals nor the copies are in the record. We find, also, the following: “By Mr. Cotonio — Counsel for plaintiff in rule now offers, solely for the purpose of showing that the original pretended will is on file in the clerk’s office in the court of Mississippi, in Harrison County, a copy of said alleged will.”

“By Mr. Hall — Assuming that it is properly certified, there is no objection to it, but, if not properly certified, it will be objected to.”

By the court — “And in' that event the oportunity will be given to have it authenticated.”

We infer from this that the copy offered was to be produced, but we find no such copy in the record.

Thtre was also offered upon the trial of the rule a correspondence between the counsel for the mover and the counsel for the defendant, from which it appears that the latter, on behalf of his client, offered to turn over the policies in question to the former, and, in fact, did so, upon condition that the proceeds, when collected, should be specially deposited subject to their joint order, but the condition was declined and the policies were returned. The counsel for the defendant in rule then offered to turn them over provided the plaintiff in rule would sign an instrument containing the following stipulation, to-wit: “I receive these policies for collection, and with the distinct agreement and obligation on my part that I will hold said proceeds subject to the claim of Francis Martin, who asserts that, as the instituted heir, and donee, of the late A. L. Hasling, he is entitled to the same; and subject, further, to the distinct-understanding and obligation on my part that should the courts decide that he is entitled to this fund, the same shall pass to him free from any charges for the administration, costs, or attorney’s fees, whatsoever.” This proposition was also declined, and the rule followed. The defendant in rule also offered what purports to be a copy of a judgment of the Chancery Court of Harrison County, Mississippi, rendered in February, 1899, in favor of Martin, as the substituted plaintiff in the law suit heretofore mentioned, quieting and confirming his title to the property in question. This offer was objected to, on the ground that the instrument was not properly certified, according to the Act of Congress providing for the exemplification of records to be used in other States; and the objection was sustained, with leave to the counsel making the offer to obtain the necessary certificate. But he neglected to do this.

The judge a quo, afterwards, rendered the following judgment on the rule, to-wit: “* * * considering the exception urged by the defendant in rule, it is ordered, for the reasons orally assigned by this court, that said exception be sustained, and the rule dismissed at mover’s costs.” And from the judgment so rendered, the plaintiff in rule has appealed. The transcript which he has lodged in this court does not, however, inform us of the nature of the exception which was thus sustained.

Opinion.

The exception which the judge a quo sustained may have been addressed to the form of the proceedings, or it may have been an exception of no cause of action, or it may have been in the nature of a plea of prescription, or it may have been something else. In other words, what the judgment of the lower court that we are asked to review was, is left, by the record, a matter of pure conjecture, which the' arguments of the. counsel do not elucidate. Counsel for the appellant, after quoting in his brief the language of the judgment from which he has appealed, says: “Now the defendant in rule never filed any exceptions, none appear in the transcript, and we cannot understand what are the exceptions referred to by the lower court in its judgment.”

Counsel for defendant present an argument from which it might be inferred that the judgment in question was based upon either of several exceptions, urged, if not filed.

As against the statement of the appellant’s counsel, that “the defendant in rule never filed any exceptions,” we are constrained to accept the judgment appealed from, whereby “the exception urged by the defendant in rule” was sustained. It may be, and doubtless is, true, that no exceptions were filed. According, however, to the practice, which prevails very generally in the District Courts, defendants in rule may urge exceptions and defenses without filing them. So that, for appellant’s counsel to say that he does not know “what are the exceptions referred to by the lower court in its judgment” is merely to place himself in the position in which he places us by bringing up the ease in the way in which he has done, and by no means indicates that no exceptions were urged. But,-if he does not know what the judgment of the lower court was, how can he expect this court to be possessed of that information. And how can he expect such judgment to be reviewed on appeal. He, at least, knew, before allowing the judgment to become final that it purported to maintain an exception, and it was entirely within his power to have moved for a new trial, calling the attention of the judge a quo to the condition which the record would present on appeal, and in that way, or by means of a bill of exceptions, to have brought up something of which it would have been possible for this court to take hold. We have had occasion to hold recently that, whilst a rule may be tried without written pleadings, so far as the defendant is concerned, it is nevertheless incumbent upon the parties appealing from the judgment therein to bring up a transcript which will enable this court, by reasonable inference, or otherwise, to understand the' judgment which it is called upon to review; and that, where the defendant has chosen to file a written answer or return, and the judgment appears to have been predicated thereon, we do not feel at liberty, when the case comes to this court, to deal with it upon the basis of other defenses, not included in such return, but which appear to have been considered or passed on by the court a qua. ReGrilleau et als. vs. Boehm (not yet final.) Where a defendant in rule makes no written return, and there is judgment against him, in general terms, it may be assumed, for the purposes of the appeal, that he urged all the defenses which, under the general rules of pleading, are not required to be specially urged. But if he expects, upon the appeal, to rely upon a special defense, he must have it to appear upon the record. Or, if, being the plaintiff in rule, he contemplates appealing- from an adverse judgment, based upon an exception, or special defense, set up by his adversary, but not appearing in the judgment, the onus is upon him to take such steps as may be necessary to present his appeal intelligibly. And this he may do, either by requiring that such exception, or special defense, be reduced to writing, and excepting to the refusal of the trial judge to so order, or, by motion for new trial and exception, where the judgment is not self-explanatory. Upon the case, as presented, we are of opinion that the appeal must be dismissed, and it is so ordered.

Rehearing refused.