text:
    No. 13,732.
    State of Louisiana vs. D. H. Tolman.
    Syllabus.
    1. In a case appealed to the Supreme Court only by reason of the legality of a tax having been in contestation, it has to assume that all issues other than the special one of the legality of the tax and all facts other than those upon which the ascertainment of such legality is dependent, have been correctly adjudged by the lower court.
    2. Where the record before the Supreme Court is not in a condition such as to enable it to determine the special issue submitted to it as to the legality or illegality of the tax in contestation, it will dismiss the appeal.
    3. A direct appeal to the Supreme Court upon the special issue of the legality of a tax does not cut the parties off from contesting in some other appellate court the other issues involved,.if the case is otherwise appealable.
    4. The constant daily repetition by a person of the same act, each act bringing with It a money return, is the “carrying on” by that person of a “business” in that particular line. A person who opens an office, advertises that he has money to lend on application, makes daily and hourly loans at interest, particularly for short periods, on so extensive a scale as to necessitate the employment of clerks, “carries on the business” of money lending, and is subject to a license, though the money loaned be his own.
    5. Act No. 170 of 1898 subjects to license taxation all persons “carrying on a Business” other than those specifically mentioned in the act, and graduates and fixes the license therefor; there was no necessity for each particular occupation to have been named.
    APPEAL from the Civil District Court, Parish of Orleans.— King, J.

      Hugh. O. Gage, for Plaintiff, Appellee.

      Henry M. Danneel, for Defendant, Appellant.
   Statement of ti-ie Case.

The opinion of the court was delivered by

Nicholls, C. J.

The defendant has appealed from a judgment condemning him to pay sixty dollars to the State of Louisiana for a license for the privilege of conducting the business of money lender during the year 1900, with two per cent, per month interest,- from March 1st, 1900, and ten per cent, attorneys’ fees on said amount, and interest and costs, and enjoining and restraining him' from carrying on said business until the said license, interest and attorneys’ fees be paid.

The proceedings originated in a rule taken upon the defendant at the instance of the State tax collector to show cause why the judgment of the Civil District Court should not be rendered.

The rule was served, as appeared by the sheriff’s return, by leaving a copy of the petition for the rule, the interrogatories thereto attached and order of court thereon at defendant’s office in the Hennen building, in the hands of Mrs. Laura E. Young, his agent. The interrogatories referred to were questions asked of the defendant and attached to and accompanying the petition of the tax collector for the rule, as to whether or not he had not been conducting and carrying on business as set forth in the petition, and whether he was not then- carrying on said business; whether the gross receipts stated in the petition to have been received by him exceeded the amount stated; whether he did not owe for a license as declared in the petition; whether he had paid for the same, and whether the allegations of that petition were not true.

The court ordered a copy of the interrogatories to be served on defendant; that he answer them, and, in default of his doing so, that they be taken for confessed.

At a later stage of the proceedings, on motion of the tax collector, defendant was ordered under a subpoena duces iecum to produce in court certain books declared to be in defendant’s possession, for the purpose of being used in evidence on the trial of the rule.

A copy of this motion and the order therein were served by leaving a copy of the same at his office, in the Hennen building, in the hands of Mrs. Laura E; Young, his agent.

The defendant excepted to the jurisdiction of the court; he excepted that he had not been cited or summoned, denying that Mrs. Laura E. Young was his agent or authorized to receive service or have service of any kind made on kim through, her; he excepted that he was a non-resident of Louisiana, a citizen of Illinois, having his domicil in Chicago, and could not be brought into court in manner and form as was attempted.

Attached to these exceptions was the affidavit of Mrs. Young, denying that she was the duly authorized agent and attorney in fact of the defendant, a resident of Ulinois, and declaring she was without authority to receive or accept service of process.

These exceptions were overruled and defendant, under reservation of same, answered, pleading first the general issue.

ITe then specially denied that he was doing business in the City of New Orleans or the State of Louisiana within the purview of any statute requiring license to be paid to the State.

He averred there was no law authorizing the levying or directing the payment of license for lending a person’s own money to other persons in the said City or State. That no license had been heretofore claimed from persons who lend money, though they are residents of the city and State. That defendant, not being a resident of the city and State, but a resident of another city and State, was not amenable to the laws of Louisiana, and the attempt made to subject him to the payment of any license was in conflict with his rights and privileges guaranteed to him under the laws and Constitution of the United States. After trial of the rule, judgment was rendered as stated. The decree was prefaced by the statement that the judgment was rendered “after hearing evidence and counsel” and that it was not rendered “considering the law and the evidence and for the reasons orally assigned.”

The District Clerk certified that the record sent up “contained a true, exact and complete transcript of all the proceedings had, documents filed and evidence adduced on the trial of the cause.”

In the brief filed on behalf of the appellant, he complains of the action of the court in overruling his exception of want of citation and his contention that he was not legally before the court, either upon the rule itself or the order to answer interrogatoriés or to produce books, and the action of the court directing the interrogatories and the allegations of the motion for a subpoena duces tecum to be taken for confessed.

On the merits it is urged that the defendant, a resident and citizen of Chicago, was engaged in lending This own money to persons in the City of New Orleans; that he was not present personally in the City of New Orleans, but negotiated such loans as were made through an ordinary clerk, who attended to the placing of the money, the taking of notes therefor and such other clerical duties as appertained to the transactions.

That, even if he were present personally and similarly engaged, he could not be compelled to pay a license tax for investing his own money in any manner he might think pioper; that the Legislature had not seen fit to impose a license tax on a person lending his own money

Opinion.

This case comes before us on appeal based, as to the jurisdiction of the Supreme Court, upon that clause of the article of the Constitution of 1898 which conferred upon it jurisdiction in all cases in which the constitutionality or legality of any tax shall be in contestation, whatever may be the amount thereof, and declares that “in such cases the appeal on the law and the facts shall be directly from the court in which the case originated to the Supreme Court.”

We have repeatedly held that upon such appeals the only issue before us for adjudication was the constitutionality or legality of the tax claimed, and the facts, we were called upon to consider were limited to those necessary to reach a determination of the special .issue before the court. The amount involved in the present litigation is entirely too small in itself to justify an appeal from a judgment rendered upon it, disconnected from the fact that it is a claim for a tax which is contested as to its legality. Where the matter in dispute in the court below is the liability of the defendant upon an ordinary debt, an amount below our appellate jurisdiction, and exception filed by the defendant that he had not been legally cited or brought into court,' either upon an original rule or any matters incidental or ancillary thereto, has been overruled, the correctness of that ruling cannot be reviewed by the Supreme Court on an appeal.

The mere fact that such an exception has been made and overruled in a case appealable to the Supreme Court by reason of the litigation being over a contested tax, does not make the ruling reviewable by it. So far as this court is concerned, it has to assume that all issues other than the special issue of the legality of the tax which is in contestation, and all facts other than those upon which the ascertainment of the legality or illegality of tljte tax is dependent, have been correctly determined by the court below. An appeal to this court upon the special issue, the legality of a tax, does not cut the parties off from contesting in some other court than the Supreme Court the correctness of the rulings of the court below, if they are otherwise entitled to an appeal from the same.

The system adopted of requiring appeals taken from a judgment passing upon the legality of a tax to be taken as to that particular issue direct to the Supreme Court from the court in which the suit was instituted, instead of allowing them to be taken to the court having final appellate jurisdiction over the case at large (except as to the special issue) sometimes carries with it delays and expenses not contemplated by the convention. The splitting up of appeals and the sending of one branch of a ease to one appellate court and another branch of a case to á different court may be attended by incongruous results, but we are powerless to control that matter.

The only evidence on behalf of the plaintiff which we find in the record is the subpoena duces tecum, and the affidavit of the tax collector as to the materiality of the books and what was intended to be proved thereby, coupled with an admission by defendant’s counsel to the effect that the books had not been produced in court.

If the court ever declared the interrogatories propounded to the defendant, or the allegations made in the application for a duces tecum, to be taken for confessed, the fact does not appear in the transcript. The only evidence attempted to be introduced by the defendant was to establish, through testimony of the tax collector, that he did not always exact a license from persons who advertised themselves as money lenders, by questioning him as .to whether he had exacted a license from certain parties named. The court refused to allow the question to be answered on objection made that the matter sought to be established was irrelevant and could have no effect in deciding the questions as to the legality of the tax claimed.

It will be seen that we have been furnished with data by neither the plaintiff nor the defendant by which we can ascertain and determine whether the tax claimed of the defendant by the State is legal or not. The record does not inform us whether the lending of money by the" defendant was under circumstances such as to make the lending constitute the carrying on of a business to that effect by the defendant.

The legal proposition announced by defendant, that so long as a party lends only Ms own money he cannot be charged for a license as for carrying on the business of a money lender, is entirely too broad.

An occasional lending out by a person of his surplus means, by way of its investment, could not be properly called the carrying on of a business of lending money, but, if a person of means opens an office, advertises that he has money to lend on application, makes daily and hourly loans at interest, particularly for short periods, and does this in such a way, continuing on such an extensive scale as to necessitate the permanent employment of a clerk, no good reason can be assigned why he should not be held to be engaged in a business in so doing, or why that business should not be designated as the business of lending money. The constant daily repetition by the same person of che same kind of acts, each act bringing with it a money return, is certainly the carrying on by him of business in that particular line. Whether or not the transactions of defendant in lending money were of that character, we cannot say. The other legal proposition advanced by the defendant is that the General Assembly has never directed the levying of a license upon persons engaged in the business of lending money and that until it shall do so in express terms such a license cannot be claimed.

The license is claimed by the tax collector to be legally demanded under the 14th Section of Act ISTo. 171 of 1898, an act entitled, “An act to levy, collect and enforce payment of an annual license tax upon all persons, associations of persons or business firms and corporations pursuing any trade, profession, vocation, calling or business, except those who are expressly excepted from such license tax by Article 229 of the Constitution, and prescribing the mode and method in which certain persons subject to license shall make report of their business.”

The 14th section, after dividing the licenses for every individual or company carrying on the profession or business of agency for steamboats, draying, trucking, keeping carts, carriages, hacks or horses for hire, undertakers, owners or lessees of toll bridges and ferries, master builders, stevedores, bill posting, or tacking, contractors and mechanics who employ assistance, into thirteen classes and fixing a specified license for each class, proceeds at its close to declare that every individual or individuals carrying on the business or profession of physician, attorney at law, editor, dentist,. oculist, photographer, jeweler, and all other business not herein provided for, shall be graded as above set forth, but the license shall be one-half of those established by this section, and provided no license shall be issued hereunder for less than five dollars.”

“The first class provides for cases where the gross annual receipts are twenty thousand dollars or more, for which the license is fixed at $120.00. The last or 13th class provides for cases where the gross annual receipts are less than seven hundred and fifty dollars, for which the license is fixed at five dollars.”

The law above referred to subjects to license taxation every business or occupation falling under its terms, not expressly exempted by Article 229 of the Constitution. The business of “a money lender” is not mentioned expressly in any of the sections of the law, but it falls under that portion of the fourteenth section wherein it is declared that all business other than that specially'mentioned therein, shall be graded under its classification, and the license fixed at one-half of those established by the section.

Tax collectors act ministerially in claiming a license against a person under this portion of the section; their acts are not final, but left open for contest when their correctness is called in question. The law is sufficiently definite in its terms (id cerium esi, etc.)

Defendant refers the court to the decision in State ex rel. Huson, Sheriff, vs. Bank of Mansfield, 48 Ann. 1029, in support of his claim that he is not subject to a license.

That decision has no application to the ease at bar. In that ease license was demanded upon a bank having a capital less than fifty thousand dollars.

The law, by its terms, had only fixed a license upon banks having a capital of fifty thousand dollars and upward, leaving those having a smaller capital not provided for. The court simply declared that neither tax collectors nor courts could carry the classification downward below the lowest- classification fixed by the General Assembly. That the Legislature, under the Constitution, was not forced to levy a license tax, and so long as it did not exact licenses for occupations exempted especially by the article of the Constitution it had the constitutional right to fix the lowest limit it might think proper for the exaction of licenses upon any particular occupation or business. Article 985 of the Code of Practice is to the effect that the Supreme Court can only exercise its jurisdiction in so far as it shall have knowledge of the matters argued or contested below. While the parties to an action in the court of first instance are free to have let the proceeding's had, and testimony adduced be preserved or not, they do this at their own risk, should the case be an appealable one, and they have failed to protect and guard their interests to meet the contingency of an appeal. It is the duty of an appellant to place a record full and complete before us. In the case at bar we are satisfied, notwithstanding the clerk’s certificate, that the transcript before us does not contain all the evidence adduced, nor all the proceedings had.

We are called on, on the one hand, to declare illegal the license exacted of the defendant in spite of the judgment of the District Court to the contrary, and on the other hand to affirm the legality of the license. With the lights before us we can do neither. As we are not in a position to render either of the two judgments which the special character of this case requires at our hands, we are of the opinion that the proper course is to dismiss the appeal. (State ex rel. Cotonio vs. Judge, 105 La. 765.)

Eor the reasons assigned, it is ordered, adjudged and decreed, that the appeal herein be and the same is hereby dismissed.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 13,881.
    Milwaukee Trust Co., Receiver, et al., vs. Germania Insurance Co.
    Syllabus.
    1. With reference to the respondent’s objection that the writ was not preceded by a sufficient application for a rehearing, the court holds that the rehearing was refused, and by it the case was finally- disposed of, and the writ of certiorari or review is seasonably taken.
    2. Corporations, different from natural persons, are creatures of the law and have only such powers as the State may choose to grant or recognize.
    3. A State may enact that those who represent Insurance companies within her limits, shall be considered agents upon whom service of process may be made, without violating the Constitution of the United States. Pembina Con. Silver Mining, etc., Co. vs. Pennsylvania, 125 U. S. 189.
    IN RE Germania Insurance. Co., applying for certiorari, or writ of review, to the Court- of Appeal, Parish of Orleans, State of Louisiana.

      Buck, Walshe & Buck for Applicant.

      Charles A. Schrieber and B, B, Forman, Jr,, (.Benjamin Bice For-man, of Counsel,) for Respondent.
   The opinion of the court was delivered by

Breaux, J.

Originally plaintiff brought suit in the District Court here to recover an amount for which it had obtained a judgment in the Superior Court of Milwaukee County, Wisconsin.

The suit in Wisconsin was on a policy of insurance issued to the Euger Kress Company of .that State for the amount of one thousand dollars on property within that State.

The Milwaukee Trust Co. became the receiver of Euger Kress Company, and as receivers, obtained judgment, which it seeks by its suit in the District Court to make executory.

The evidence shows that the policy was forwarded by the Germania Insurance Company to Euger Kress Company through insurance brokers in Chicago. Previously, application had been made by Euger Kress Company for this policy through these brokers. In the District Court the Germania Insurance Company sought to meet the issue tendered by the pleadings that the judgment upon which the Milwaukee Trust Co. had brought suit against it in the State of Wisconsin was void, because Gustave Neimeier, upon whom the summons from the Superior Court of one of the counties of that State had been served as its agent, was not its agent.

The judge of the District Court rendered judgment in favor of plaintiff and against the defendant insurance company. From this judgment an appeal was taken to the Court of Appeal. Before that court the judgment was affirmed. Plaintiff seeks to have the judgment heretofore rendered reversed, and to that end obtained a preliminary order from this court, addressed to the defendant to show cause why it should not be reversed. The record is before us by writ of error and review.

Plaintiff, before meeting the issues on the merits here, urges the objection to the writ issued by this court, that' defendant failed to make a proper application for a rehearing, in that it omitted to file in that court a proper statement of points and authorities, as required by the rules of that court.

There was, as we take it, serious application made for a rehearing, and it was refused by that court. Whether the court deemed that its rule had or had not been complied with, is no concern of ours in this case. Its action denying the rehearing is decisive enough to consider the writ of review as properly before us for our review. We will not stop to consider all the grounds upon which the court acted in refusing the rehearing. An application for a rehearing was made .by defendant and relator, and it was refused by the court. This is all that is required as relates to this application.

Before passing upon the question of sufficiency vel non of the service made in Wisconsin to vest the court of that State with jurisdiction, we will insert a summary of the facts:

The testimony shows that Gustave Neimeier, of Milwaukee, Wisconsin, issued the policy to the insured in that State. It was stamped with the signature of Clinton Weeks and Company, insurance brokers of Chicago, and Neimeier collected the premiums. The summons of complaint in the cause against the Germania Insurance Company was served upon Neimeier. The policy shows that the property was situated in Wisconsin. Neimeier, the record shows, solicited the insurance in Wisconsin, made the contract, delivered the policy and accepted and retained the premium for the defendant company.

The law of Wisconsin on the subject provides that any person who solicits insurance on behalf of any insurance corporation, or property owner, or who transmits an application for insurance except for himself, or collects any premium for insurance, shall be held to be the agent of such corporation to all intents and purposes. Service of a summons in civil action may be made on such agent, and such service is valid to give the court jurisdiction of the foreign corporation so represented by such agent, and to render a judgment in an action so commenced binding upon any insurance company.

In sending policies into the State, by force of law it makes the person before designated the agent of the insurance company for the purpose of the service of process and jurisdiction of the court. The court of Wisconsin in this case found specifically the facts necessary under the statute to give it jurisdiction of relator and appellant upon the service had. It has been held that such a judgment cannot be attacked for want of jurisdiction. (Firemen’s Ins. Co. vs. Thompson, 40 N. E. Reporter, p. 488.)

Similar view expressed in State vs. Insurnace Co., 62 Wisconsin, 174; and in State vs. Ins. Co., 67 Wisconsin, 624. Unquestionably, the foregoing is the láw of that State as relates to service' of summons and in matter of the jurisdiction of her courts in cases against insurance companies.

The relator here and defendant attacks the law on the ground that the Superior Court of Milwaukee County, Wisconsin, did not acquire jurisdiction of the Germania Insurance Co. in the suit in personam,, wherein was rendered the judgment sued on; that there was no appearance and no waiver of process, and that the man Neimeier was not its agent; that the defendant company is not bound by the law of Wisconsin; that a statute authorizing such a judgment operates as a taking of the property without due process of law.

In answer to these different grounds, we can only say that the authorities agree in holding that in order to bind the insurance company, process must be served in the manner pointed out by the statute. This, we take it, has been done in this case. The process was served upon one who is a statutory agent, and the issuing of the policy by the company to the insured is attended with all that was required, in order, quoad this policy, to bring the insurance company within the jurisdiction of the Wisconsin court.

Repeated decisions hold that a State may lay down conditions upon which a foreign insurance company shall do business within its territorial limits and make provision for service of process upon agenta and to acquire jurisdiction in the event of a suit to recover upon the policy issued.

The Supreme Court of the United States has announced in a well reasoned opinion that the States may require for the admission within their limits of the corporations of other States such conditions as they may choose without acting in conflict with the provisions of the first section of the fourteenth amendment. (Pembina Con. Silver Mining, etc., Co. vs. Pennsylvania, 125 U. S. 189.)

The question has been considered in a number of decisions, and it has been repeatedly decided that, different from a natural person, a corporation cannot do business in another State without the latter’s consent, and that the State has full power to fix the conditions it deems proper. The case is not as in a case against individuals. They (corporations) are bound by the statutory agency created, and in entering the State as a corporation, it is bound by the terms of the statute fixing agency in such a case. (St. Clair vs. Cox, 106 U. S. 850.)

The decision just cited was subsequently referred to, and construed, in a decision sustaining a statute of the character of the Wisconsin statute. (Mutual Life Ins. Co. vs. Spratley, 172 U. S. 606.)

Our learned brothers of the Court of Appeal, by Judge Dufour, speaking for the court, reviewed other decisions upon the subject of service, among them the decision in Firemen’s Ins. Co. vs. Thompson, 40 N. E. 488, as bearing directly upon the subject. The reasoning is commended by the court and the court concluded “that Neimeier was under the facts and the law agent of the company and that service on him according to that law was sufficient to vest the Wisconsin court with jurisdiction of the person of the appellant.” We agree with that view.

In all the decisions which have fallen under our research, and we have examined a number, the authority is left to the State to determine the conditions upon which a foreign corporation shall be admitted to do business within her limits. In some of the decisions to which we have referred, it is true, the court was influenced by the thought that the insurance company was conducting a business subject to her laws. Yet, in the ease last cited above, the insurance eampany had withdrawn its agents from the State and was not actually in business in the State. The service was held legal.

In the case before us for decision, the fact is invoked that the record does not disclose that the Germania Insurance Company was conducting a business in the State of Wisconsin. The statute of that State chooses to make one act, such as that it is shown this defendant engaged in, a business. Under the authorities, the State had it in its power to make a single act a business enough as relates to jurisdiction. Moreover, the law being as we have stated, it was incumbent upon the defendant to show that the extent of its insurance in Wisconsin was limited, as it contends it was, to one act of insurance.

We have not found any ground upon which we can grant relief to the defendant.

Our preliminary order is recalled, and the application of the Ger-mania Insurance Co., defendant, to have the proceedings annulled, is dismissed.


author: Monroe, J.

text:
    No. 14,209.
    State of Louisiana vs. Regile Edwards et als.
    Syllabus
    1. The evidence, taken out of the presence of the jury and brought up with the bills of exception in this case, fully sustains the ruling of the trial judge, to the effect that the confessions attributed to the defendants were made freely and voluntarily and without the inducements of promises or threats, and such rulings will, in no case, be disturbed unless clearly erroneous.
    2. In the cross-examination of one of the defendants, who had taken the stand as a witness in his own behalf, his attention was directed to the time, place, and circumstance of a statement attributed to him and said to be at variance with his testimony, and he admitted the ijrobability of having made such statement. 'Thereafter, upon cross-examination of the person to whom the statement was said to have been made, and who had been introduced as a witness on behalf of the co-defendant, he was asked whether such statement had been made to him, to which he replied in the affirmative. The overruling of the objection that the question was not germane to the testimony elicited upon the direct examination of the witness and that it served to introduce an alleged confession by the defendant was not, under the circumstances, reversible error.
    3. Neither general allegations as to errors of law, nor special allegations as to errors concerning facts, submitted to and found by the jury, will be considered by this court as grounds for the reversal of the ruling of the district judge in denying an application for new trial.
    APPEAL i{rom -the Sixteenth/ Judicial District, Parish of S,t. Landry. — Lewis, J.

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

      B. H. Vary and O. F. Garland, for Defendants, Appellants.
   The opinion of the conrt was delivered by

Monroe, J.

Regile Edwards and Octave Robertson, otherwise called Octave Gélida, having been convicted of murder, without capital punishment, and sentenced to imprisonment at hard labor for life, present their case to this court by means of six bills of exceptions, five of which were taken to the admission in evidence of the confessions alleged to have been made by them, and the sixth, to the refusal of the district judge to hear testimony in support of a motion for a new trial. Bills 1, 2 and 3 relate to confessions said to have been made by Edwards, at different times, to T. E. Carroll, Sr., a citizen, M. L. Swords, the sheriff, and Ambroise Yidrine, a deputy sheriff, and show that, substantially, the following objections were interposed to their admission in evidence, to-wit: To the confessions said to have been made to Carroll and Vidrine; that it does not appear from the testimony of those witnesses that the alleged declarations were free from duress and undue influence; that the witnesses swore that the confessions had been made and the defendant swore that they had not, and that the trial judge gave credence to their testimony and none to that of the defendant, whereas the doubt resulting from this conflict in the evidence should have been received in favor of the defendant, since, before the admission of such confessions, it should have been shown affirmatively and beyond a reasonable doubt that they were free and voluntary; that the whole record shows that the defendant was arrested in the country; that he was allowed to speak to no one, not even his employer; that he was handcuffed, that he was charged with being the murderer of Sidney Lafleur, and this three years after the alleged killing; that, at the time, he solemnly protested his innocence; that on the road to town a threat was made to “cut his whistle;” that he was placed in a cell separate from his co-defendant; that he was told that if he made his testimony conform to that of his co-defendant, who had acknowledged his guilt, as they said, then some relief would come to him, but that he declined to do so, and, on the preliminary examination, refused to go on the stand and acknowledge his guilt; and that all these and other facts, contained in the testimony annexed show circumstances amounting to menace, at least calculated to produce fear, under which the accused-was called upon to tell what he knew about the crime and were such as to make his situation so full of perplexities and embarrassments as to deprive him of the character of a free agent and raise the presumption that even if the witnesses deposed the truth, which is denied, the defendant’s statements and his replies could not have been the result of a purely voluntary, mental act; that the true ground upon which confessions extorted by violence or induced by promises are excluded is, that, when made under such influences, they tend to produce doubt as to their truth; that all efforts by the State to prove, aliunde, the truth of the alleged voluntary declarations were futile; that the testimony as to the veracity of the alleged confessions cannot be reconciled, it being claimed that the- defendant implicated Mrs. Sidney Lafleur, the widow of the deceased, in the homicide, when there was no proof that she took part; that this defendant confessed to Carroll that he was in the yard, near the gallery leading to the kitchen, when the fatal shot was fired, and to the sheriff that he was outside of the yard, in the road, when the same event took place, showing fear, trepidation and a sense of insecurity and uneasiness bordering on insanity, and showing that the alleged confessions, if made at all (which is stubbornly denied), are, and were, not true and not admissible because not true, if for no other reason.

The objections to the admission of the confession made to the sheriff were: That it was not free and voluntary, but was based on promises made to him by Durio and Fusilier, quasi law officers and detectives, who assisted in his arrest, to the effect that the defendant’s co-defendant had confessed his guilty participation in the felony and that if the defendant would make a confession which would correspond therewith he would be used as a State witness, said officers stating that their names should not be used in court; that said officers had placed John Hebert in jail with defendant to urge him to confess, and that Hebert urged him to confess whether he knew anything or not, and that, in the hope of realizing the benefits promised him by the two detectives aforementioned, he falsely stated to the sheriff that he had participated in the felony,.but that, soon thereafter, he began to suspect that the detectives were fooling him, and he declined to testify before the Grand Jury that he was guilty and immediately wrote a letter in order to set himself right with the parties who would have been affected by his false and unfounded confession, and further did all that he could to remedy the mischief caused thereby, said false confession having been made from no sense of guilt, but from a desire to help himself and from faith in the statement of the detectives that he would be relieved of an accusation involving the penalty of death.

The reasons assigned by the judge a quo for overruling these objections are, in substance; that the confessions were voluntary and were not induced by any promises of immunity from punishment, or hope of reward, or threats, the testimony of the defendant upon that subject having been contradicted by that of every other witness whom he implicated as offering inducements; that whether the confessions were true was a question for the jury; and that whether the State proved their truth by evidence, aliunde, is a- matter with which the appellate court is not concerned; that the statement that the accused implicated the widow of the deceased in the homicide, “when there is no proof that she took part therein,” is purely gratuitous, is not supported by the evidence, and is a matter collateral to the trial of the case, since the widow was not on trial with her co-defendant; that the evidence established the fact that the defendant sent for the sheriff, and, after having been told by that officer that he could make him no promise, voluntarily made a statement to him and a subsequent one to the witness Vidrine.

The judge further states, with regard to the confession said to have been made to Vidrine, and the statement is equally applicable to the statement said to have been made to Carroll, “the witness Vidrine testifies that the confession was made and the accused denies making such confession. Whether or not it was made is a question of fact for the jury to determine.”

Eor the purpose of determining whether-the confessions in question were free and voluntary, Carroll, Vidrine, Swords (the sheriff), Durio and Euselier (the persons referred to as “detectives”) and other witnesses were examined, out of the presence of the jury, and their testimony, as a whole, contradicts that of the defendant upon every material point at issue, and satisfies us, as it did the judge a quo, that the confessions were not induced by threats or promises. They were not made whilst the defendant' was being brought, in shackles, from the country to town, upon the occasion of his arrest, but upon different occasions, and to different persons, during the two weeks which followed, and after there had been time for the apprehension and excitement immediately resulting from the arrest to subside. Durio and Euselier, by whom the inducements are said to have been held out, deny that they made any promises or threats. It is undisputed that the sheriff declined to listen to any statement from the defendant until he had been sent for by the latter, and his testimony to the effect that he then told the defendant that he would make him no promise, and that he so told him because he considered it his duty as an officer, i* entirely uncontradicted.

The exceptions incorporated in Bill No. 4 relate to a confession made by Octave Gélida, or Robertson, to Theodore Doucet and'Raymond Breaux. They were based on substantially the same grounds as those embodied in the other bills and were overruled for the same reasons.

It was said in State vs. Bartley, 34 Ann. 147, and State vs. Porteau, 52 Ann. 476, “Whether the confession was voluntary or not, and admissible or inadmissible under the evidence submitted, is a mixed question of law and fact, which we are authorized to review, the evidence on the point being set forth in the bill, of exceptions. Though this is the case, the ruling of a judge of first instance on a question of this character should not be disturbed, unless clearly erroneous. The presence of the witnesses before him; their manner of testifying, character, etc., afforded an opportunity of reaching a correct conclusion on the point at issue superior to any we possess.” This language is applied in the present case.

Bill No. 5, sets forth that the State, having introduced, through Doucet and Breaux, the confession made to them by Celida, closed its case and that Celida, then testified in chief; that, upon cross-examination, he was asked: “Did you tell L. J. Dossman, the deputy sheriff, whilst on the train going to Alexandria, that Regil’s mother wanted you to say that it was Mr. Angelos Prudhomme who had killed Sidney Lafleur, but that you could not say that. It was not true. It was as you had always said it, and that you had made peace with your God.” To which the defendant, Celida, answered that he might have said so to Mr. L. J. Dossman, but, if he did, it was on account of the threats and pfomises that had been made to him; that, thereafter, Dossman having been called to the stand on behalf of the defendant, Edwards, testified to something that had taken place when he and others called on Edwards in the parish jail, and that, upon the cross-examination, he was asked by the District Attorney “Did Octave Robertson tell you, on the train going to Alexandria that Regil’s mother wanted him to say that Mr. Angelos Prudhomme it was who had killed Mr. Lafleur, but he was not going to say that because that was not the truth, it was as he had always said it, and that he had made his peace with his God?” Whereupon the defendant objected, upon the ground that the question was not germane to the direct examination and that it was another attempt to introduce the confession of Celida without first laying the proper basis, as the jury well knew, from the testimony of Doucet and Breaux, what Celida “had always said,” and that the State was bound by the answers of the accused and could not contradict him by the witness Dossman. The objections were overruled, for the reasons, as stated by the judge, that the defendant, Celida, testifying in his own behalf, was asked whether he had not made statement which conflicted with the ■ testimony which was then being given, his attention being called to the time, place and circumstances, and that it was competent to prove such statements; that the question did not, call for a confession, in answer thereto, no confession was introduced, the answer of the witness being “he did.”

There can be no doub.t of the right of the prosecution to prove the statement to which the attention of the defendant had been especially called, and which we must assume was at variance with the testimony which he had given. Under some decisions of this court, the defendant might perhaps have insisted that the State should have made Dossman its own witness for that purpose, but as the answer merely confirmed what the defendant had testified to, as probable, the error, if error there was, in allowing the question on cross-examination, is not such as to demand the reversal of the judgment.

Bill No. 6 was taken to the refusal of the trial judge to hear evidence in support of the motion for new trial. The reasons assigned for this ruling are, that the motion for a new trial alleged that the verdict was .contrary to law and the evidence, and that an attempt was made to give it some force by a recital of some of the facts of the case, though the judge declines to discuss whether they were proven facts, but that the motion did not set forth all the facts and that whether the motion should be granted was within the discretion of the judge who had heard the evidence.

The allegations contained in the motion for new trial as to the facts are as follows, to-wit:

“That the testimony of Emile Lafleur, a brother of the deceased, who swore that the person who assassinated his deceased brother, Sidney Lafleur, had concealed himself under a small gallery, which connected the kitchen to the gallery of the dwelling house of his brother, and had fired the two shots from that point; that the footprints made at the point where he said the assassin had concealed himself were made by number five, or, at most, number six shoes; that this evidence clearly shows that the confessions which were the only evidence against your movers were false and untrue; that the said confessions were not in any manner and way sustained, corroborated, or verified by any testimony or facts whatever. Wherefore, for the above reasons, petitioners move that a new trial be granted, etc.”

The offer of evidence in support of the application thus made was, in effect, a suggestion that the judge should retry the facts which had been submitted, to, and found by, the jury, and for this court to undertake to reverse his ruling in declining to adopt that suggestion would be to assume a jurisdiction which is prohibited.

“The prohibition to the exercise of the jurisdiction of this court lies to its power to find pure questions of fact, such as were submitted to and found by the jury. The inhibition does not extend to questions of law based upon facts submitted to and found by the judge. Of course, the court could not review, under any circumstances, the verdict of the jury, on the facts before them on the trial of the accused.”

“This court has, therefore, authority to consider the facts established on a motion for new trial, when they .are such as were not submitted to and passed on by the jury, but were considered and decided by the judge only.” State vs. Nelson, 33 Ann. 845.

“The action of the trial court in refusing a new trial where no special error of law is pointed out, and where no bill of exceptions, with testimony attached, is taken to the overruling of the motion for new trial, will not be reviewed in this court.” State vs. Washington, 52 Ann. 445.

We find no error in the ruling complained of, and the judgment appealed from is affirmed.


author: Blanchard, J.

text:
    No. 14,066.
    DeBlanc & Landry vs. Mayor and Board of Trustees of the Town of New Iberia.
    Syllabus.
    1. Where the conducting of a liquor saloon is a legally legitimate business In the sense that it is permitted by license in a municipal corporation, It is not a nuisance per se, and not a thing or occupation that must necessarily become a nuisance.
    2. This being so, it is not within the power of the town authorities to single out a certain saloon, arbitrarily declare it a nuisance and order it closed, and. if the order be not obeyed flue the proprietor for not obeying.
    APPEAL from the Nineteenth Judicial District, Parish of Iberia— Thorpe, Judge ad hoc.

      Broussard, Dulany & Broussard, for Plaintiffs, Appellees.

      Andrew J. Gammack, for Defendants, Appellants.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiffs are retail grocer merchants and liquor dealers. They conduct a saloon in the rear part of their store.

They were served with written notice to close their saloon within three days from the date of the notice, and to discontinue that business. The reason assigned for this was that their saloon had been declared a nuisance.

The notice was signed by the Mayor of the town of New Iberia.

Whereupon, they brought this suit to prevent by injunction the closing of their saloon, and attack the municipal ordinances, under which the town authorities are proceeding, on the ground that the same are illegal, unconstitutional and oppressive.

There are two ordinances. The first, in its first section, declares it shall be unlawful for any person to use boisterous or obscene language in any store, shop, saloon, barrel-house, negro dive, café or other public place, and subjects the person so offending to a fine of not less than five nor more than ten dollars, or to imprisonment for a period of not less than five nor more than ten days, or both, at the discretion of the Mayor.

This is a perfectly proper and lawful exercise of municipal authority.

The second section requires the proprietor or manager of any such establishment to inform the police officer of any violation of the provisions of the first section that may take place in his establishment, under penalty, if he does not do so, of having his place of business declared a nuisance and closed after three days’ notice. And the section then goes on to declare that if, after such notice, the proprietor or manager fails to close he shall be liable to a fine of from twenty-five to one hundred dollars, or to imprisonment for not less than ten nor more than twenty-five days for each week or fractional part of a week he so neglects to comply with the order to close.

Some two months following the adoption of this ordinance, which is general in its terms, the town authorities adopted another, directing the Mayor to notify plaintiffs to discontinue the use of their premises as a saloon, and should they fail to obey the notice, “to. have the premises closed up as a public nuisance without delay under the ordinance passed November 6, 1898, concerning nuisances,” which was the ordinance first referred to.

It is the second section of the first ordinance and the whole of the second ordinance that plaintiffs attack as illegal and oppressive.

It appears that the town of New Iberia has not prohibited the carrying on of the retail liquor business within its limits. The same is permitted, and licenses are issued therefor both by the State and the corporation. It would seem, therefore, that the business of conducting a saloon in the town is a legally legitimate business. It is not a nuisance per se, and not a thing or occupation that must necessarily become a nuisance. Board of Aldermen vs. Norman, 51 La. Ann. 736.

This being so, it is not within the power of the town authorities to single out a certain saloon, arbitrarily declare it a nuisance and order it closed, and if the order be not obeyed fine the proprietor for not obeying.

In the ease cited supra, this court said:—

The fact that a particular use of property is declared a nuisance by a town ordinance, does not make it such unless it is in fact so and is embraced within the common law or statutory idea of a nuisance. The thing or act complained of must come within the legal notion of a nuisance, and where it does not, no authority to remove or abate is derived from the ordinance declaring it a nuisance. But where a thing or act complained of is a nuisance per se, or must necessarily become a nuisance, a town or city may, in the reasonable exercise of the police power, make regulations for the suppression and prohibition 'of the same.

Rower conferred in general terms upon a municipality, to prevent and abate nuisances does not authorize the extra judicial condemnation and distruction of that as a nuisance, which in its nature or situation is not such. Dillon Mu. Cor., 3rd Ed., Vol. 1, § 374; Hutton vs. City of Camden, 39 New Jersey, 122.

The right to be heard before condemnation, and make defense, is a cardinal principle in free governments. It pervades the spirit of, and is safe-guarded by, all the great charts and writs, which, wrung in a remote past from the reluctant hand of kingly power, laid the foundations of civil liberty itself. It is the very antithesis of absolutism.

For a town Council, by ordinance, to find conclusively against an owner -of property, or a tenant of property, that a state of facts exists with respect to the use of the property, or the pursuit of his business, which subjects him to a condemnation, is to affect his rights in a vital point.

The next thing to depriving a man of his property is to circumscribe him in its use, and the right to use the property is as much under the protection of the law as the property itself is, and the one interest can no more be taken out of the hands of the ordinary judicial tribunals than the other can. 39 New Jersey, 122.

What are nuisances per se, is well established by jurisprudence and in the works of text writers,' and it is equally well established that where a thing or act complained of is a nuisance per se, it may be so declared by ordinance and abated. But where the thing or act complained of is not a nuisance per se, and may not be a nuisance at all —depending on the facts — there is no authority vested in a town Council to enact an ordinance declaring it a nuisance and ordering its suppression, and such an ordinance is void and without effect.

And where, as in the instant case, an ordinance is passed declaring plaintiffs’ business — even though it be a saloon — a common nuisance and ordering it closed, and in protection of their rights they invoke the equitable writ of injunction, at the same time attacking the ordinance in question as oppressive and without constitutional or legal warrant, the sole issue raised, or that can be raised, is as to the power ■of the Council to enact such an ordinance. If the power exist, the ordinance may be enforced; it does not exist, it cannot be enforced.

Whether or not the business as conducted by the plaintiffs is, in fact, a nuisance, does not properly arise, and should not be injected into the case.

But it may be competent for the municipal corporation, by proper proceedings taken, and where the parties affected are given a hearing and opportunity for defense, to have plaintiffs’ saloon as conducted decreed a nuisance in fact — a common and continuous one — and abated and suppressed as such.

Wood’s Law of Nuisances, 2nd Ed., Sec. 780.

And, also, while the town authorities may not close plaintiffs’ business on the mere declaration that the same is a nuisance, it is competent for them to pass and enforce ordinances denouncing municipal penalties of fine and imprisonment against keepers of disorderly houses, and in this way regulate such establishments and prevent them from becoming nuisances..

Judgment affirmed.

Breaux, J., takes no part.


author: Nicholls, C. J.

text:
    No. 14,109.
    Mrs. Celina M. Colgin vs. J. M. Courrege.
    Syllabus.
    A sale made by a married woman with the authorization of her husband for the recited consideration of a price paid cash by the vendee is prima faoie valid, and a subsequent sale of the property by the vendee to a third party acting in good faith on the faith of the public records is protected from a rescission by the wife of the original sale on the ground that it was not really a sale, but the taking up by her of a mortgage securing her husband’s debt which she had executed in favor of the apparent vendee and that she executed the act under marital influence, coercion and the fraudulent representations of her husband, and the fraud in the vendee.
    APPEAL from tbe Nineteenth) Judicial District, Parish, of Iberia —Gammack, Judge ad hoc.

      Broussard, Dulany & Broussard, for Plaintiff, Appellee.

      Louis Octave Hacker and Weeks & Weeks, for Defendant, Appellant.
   Statement op the Case.

The opinion of the court was delivered by

Nicholls, C. J.

The plaintiff, authorized and assisted by her husband, averred in the petition filed by her in this case that, through the fraud and illegal methods and contrivance of Jean Marie Oourrege, practiced on her, and the marital coercion, force and duress exercised over her by her husband, she was induced to sell to the said Courrege certain described property declared to be a part and parcel of her paraphernal property to pay her husband’s debts, alleged to be due to said Courrege. That said sale was an absolute nullity because it was an attempt on the part of Courrege to make her and her separate property responsible for the debts of her husband and of the community existing between them. That the consideration mentioned in said act did not enure to her benefit or separate use, and she signed said act under marital influence and by reason of the fraud practiced upon her by Courrege at the time, and by means of which she was led into error. That at the time of the purported sale from her to Courrege he well knew that she did not owe him one cent; that she had never contracted any debt with him for her separate nse and benefit and that of her separate property, and that if any amount was due to him it was the debt of her husband for which neither she nor her property can be liable, and that all transactions having in view such an end' were absolute nullities because violative of a prohibitive law.

She averred that in order to secure the said act of sale of the said property, the defendant made to her representations which were false and fraudulent, and that, at the time, she repeatedly informed him that she owed him nothing and was in nowise liable to him for any amount, and that the effect of said sale was to make her surety for her husband, which was prohibited by law.

She averred that since the pretended sale to Courrege he had transferred and sold the same to the Iberia Building and Loan Association, and that said association was a necessary party to the suit.

She averred that the pretended sale of the said property was passed on the 18th of April, 1893, and that the consideration therein was declared to be two thousand dollars cash, when in fact and in truth no cash was received or paid, but in fact and in truth the consideration was' a debt of her husband and well known as such at the time of the purchase by Courrege.

That on the same day, month and year the said Courrege, through fraud and misrepresentation to her and her husband, through marital influence, force and duress, to all of which Courrege was cognizant, fraudulently induced her to buy back from him this same property for the pretended purchase price of two thousand dollars, to represent which she was induced to sign a note for said Courrege for two thousand dollars, secured by a special mortgage on the property, all in error of her rights, through* fraud and marital influence and force. That this transaction was only an attempt on the part of Courrege to give color of legality and reality to the transaction of the pretended sale made on the same day, and to conceal the real nature of the transaction and a device and scheme resorted to for the purpose of making her liable for the debts of her husband.

That in furtherance of the said scheme, device and contrivance of the said Courrege to make her liable for her husband’s debts, in the face of the prohibitory law, and owing all the time to the aforesaid marital influence, force and duress of her husband, she was on the 18th of September, 1895, again induced to sell back to the said Courrege the same property for the pretended purchase price of two thousand three hundred and seventy dollars cash, which in fact and reality was never paid to her, but was in fact, as in all the other transactions referred to and relating to the pretended sale of this property, an illegal and pretended consideration by which she was attempted to be made liable for her husband’s debts, to become surety for the same and to pay the same. That she reiterated, as to this pretended sale of the 18th of September, 1895, all the allegations of fraud and nullity which she made in regard to the other transactions. She averred that, notwithstanding all the aforesaid machinations, contrivances, fraudulent schemes and other illegal methods resorted to to give validity and semblance of fair and real dealing to this pretended sale of this property, they did not and could not, for reasons stated, bind her or her separate property, nor could she be divested of her ownership, because she cannot be made liable for her husband’s debts nor made security therefor; all of which is in the face of a prohibitory law. She prayed for citation upon Courrege and the New Iberia Building and Loan Association and that there be judgment in her favor annulling and rescinding the sales of the property described and decreeing petitioner the owner thereof and ordering her to be placed in possession thereof.

Each of the defendants excepted that plaintiff’s petition declared no cause of action. The exception was overruled. Courrege answered, pleading the general issue.

The New Iberia Building and Loan Association answered first, pleading a general denial.

It then alleged that it was the owner of the property and acquired the same in good faith and by regular purchase from J. M. Courrege on the 20th of January, 1896, for the sum of twenty-nine hundred dollars.

That at the time of the purchase from Courrege he was the owner thereof by valid and legal chain of title from the plaintiff and her authors; that this transfer from plaintiff to him, as well as those from her authors, were all duly of record in the books of conveyance of the Recorder’s Office of the Parish of Iberia. That it purchased said property in good faith and upon the faith of the records. That it is an innocent third party, and that the said property had been permitted by plaintiff to be and to stand recorded as the property of Courrege, •and she is now estopped by her acts and conduct in so doing from denying same, which estoppel it expressly pleaded.

It averred that it was not aware of any secret equities which may-have existed between plaintiff and Courrege, and it alleged that the sale from plaintiff to Courrege was a bona fide sale and for value. That the consideration thereof consisted in reality of goods and merchandise supplied and cash advanced, which had been made to her by Courrege and had been received by herself and her agents or paid out by him by her orders.

It denied that same was in any way fraudulent and averred that same was entered into of her own free will with the consent and authorization of her husband. Under proper allegations it called Courrege in warranty and contingently prayed for judgment against him.

Stephen E. Hale intervened in the suit praying that there be judgment dismissing plaintiff’s suit, but praying that, should plaintiff have judgment for the land, that he be recognized as the owner 'of the improvements erected by him thereon, which he had set out in his petition, and, should the court decree that plaintiff might elect to keep the same, that he then have judgment against plaintiff for the costs of the material and workmanship in their construction, with reservation of all rights he might have against the New Iberia Building and Loan Association and J. M. Courrege.

The plaintiff answered the intervention of Hale by a general denial and prayed that intervenor’s claim be rejected.

The court rendered judgment in favor of the plaintiff annulling and setting aside the sale from the plaintiff to the defendant, J. M. Courrege, and decreeing plaintiff, Mrs. Celina M. Oolgin, to be the owner of the property as her separate paraphernal property, and ordering her to be placed in possession thereof.

The court further ordered, adjudged and decreed that the New Iberia Building and Loan Association have judgment against defendant, Jean Marie Courrege, for the sum of two thousand five hundred dollars, with five per cent, interest from the date of the judgment. The court further adjudged and decreed that the plaintiff should have the right to elect to retain the improvements placed on the property of the intervenor, Stephen F. Hale, upon payment of the sum of seventeen hundred and seventy dollars, in default of which payment the intervenor, Hale, should have the right to remove from said property said improvements placed on the same by him. It further decreed that the costs of the original demands be paid by the defendant, J. M. Courrege, and that plaintiff pay the costs of the intervention.

J. M. Courrege, The New Iberia Building and Loan Association and Stephen F. Hale appealed.

Opinion.

It may be conceded that the original ac,t of transfer of the property involved in this litigation from Mrs. Celina Colgin to J. M. Courrege and the re-transfer to her on the same day before the same notary, under reservation of a special mortgage and vendor’s privilege by Courrege, were, in fact, nothing more than a plan by and through which the paraphernal property of the wife was mortgaged to secure a debt due by the husband. It may be likewise conceded that while the consideration of the act of sale made on the 18th day of September by Mrs. Colgin to Courrege was stated to be the sum of two thousand three hundred and seventy dollars cash in hand paid, the actual consideration was to effect the payment of the debts of her husband.

From these conceded premises it does not follow as a necessary legal conclusion that the plaintiff is entitled to have the same annulled and set aside.

We are called upon in the ease at bar to deal not with an executory, but an executed contract, one where a wife is not resisting an attempt being now made to make her property liable for a debt of her husband, but to undo an accomplished act on the strength and faith of which third parties have acquired rights. The issues which the plaintiff seeks to have determined in her favor involve not only Courrege, but The New Iberia Building and Loan Association, who purchased the property subsequently, really for the benefit of Stephen F. Hale, and Stephen F. Hale himself. Plaintiff relies upon Article 2398 of the Civil Code, which declares that “the wife, whether separated in property by contract or judgment or not separated, cannot bind herself for her husband conjointly with him for debts contracted by him before or during the marriage.” She urges that this article is a prohibitory law, and that under Article 12 of the Civil Code, whatever is done in contravention of such a law is null; that the provisions of Article 2398 establish a rule in the interest of the public good, and individuals cannot renounce the benefit of the same or derogate from their force by any contract. (C. C. 11.) That the contracts which she attacks are absolute nullities which cannot be affirmed or ratified and are void ■and of no effect under all circumstances and as to all persons.

The defendants rely upon the provisions of law which authorize the wife, with the authorization of her husband, to alienate her immovable effects (C. C. 2390) and maintain that where she has executed an act in point of form an act of sale with an authorization of her husband, and permitted the same to have been placed upon the public records, the public have a right to act upon the presumption that the contract is a valid one and will be protected from adverse actions when they should have done so. They draw a distinction between acts of mortgage executed by a wife to secure the debt of her husband and acts of sale which the wife may have made for the payment of his debts. They refer the court to Articles 122, 129, 130, 1746, 1782, 1786, 1798. 1845, 2390, 2397 of the Civil Code, to Blanchard vs. Castille, 19 La. 362; Eichardson vs. Hyams, 1 Ann. 286; Boudreau vs. Bergeron, 4 Ann. 83; Moussier vs. Zuntz, 14 Ann. 14; Hankins vs. Hays, 15. Ann. 615; Davis vs. Greeve & Wildeman, 32 Ann. 420; Schepp vs. Smith, 35 Ann. 1; Joly vs. Weber, 35 Ann. 806; Morrow vs. Godchaux, 41 Ann. 711; State National Bank vs. Flathers, 45 Ann. 75; Broussard vs. Broussard, 45 Ann. 1085; Lester vs. Connelly, 46 Ann. 340; Thompson vs. Whitbeck, 47 Ann. 49; Lacassagne vs. Abraham, 48 Ann. 1160.

The plaintiff differentiates her case from those cited wherein the wife had actually sold her property and having actually received the proceeds thereof had subsequently appropriated the proceeds to the payment of the husband’s debts. She insists that she has never received a dollar, and therefore her property has been disposed of without any consideration whatever, inasmuch as the only consideration was an illegal one and nothing has been received by her. She urges that the distinction between contracts of mortgage and those of sale which the defendants contend for is one which cannot be sustained, as under it the wife would be protected against the lesser act of mortgaging her property and left' defenseless against the more serious act of selling her property. It is not charged in the pleadings that either the Building Association or Stephen Hale acted in bad faith or had actual knowledge of the situation. The utmost claimed is that the situation was such that from the acts placed upon record they were put upon inquiry as to what the relations between plaintiff and her husband and Courrege were, and that, failing to have made such inquiry, they acted at their peril. It may be said here that the purchase of the property by the Building Association from Courrege was predicated upon a report made to it by its legal adviser that the title was good.

The proposition of the plaintiff that the act between herself ard Courrege purporting to be an act of sale for a price which was paid cash, and in the execution of which act she was aided and authorized by her husband, was so radically null as to be void and of no effect, though placed upon record, and though acted upon in good faith by third parties, is not tenable. The act was prima facie valid. It was an act which had all the appearance of legality under the provisions of Article 2397 O. C., and the public were, when in good faith, justified in acting upon that presumption.

There was nothing on the face of that particular act which connected the contract which it purported to evidence with prior relations which may have existed between the parties. It stood, so far as the record showed, as a separate, independent transaction. It may be that the lawmaker has, under Articles 2397 and 2390 of the Code, opened a door for the perpetration of fraud upon the wife through an act made by her in the form of a sale while it has sought to protect her from her own weakness in binding herself and her property in an act of mortgage, but if the law be defective in this respect, as plaintiff’s counsel claim it to be, we are powerless to correct it. So long as the law does not make a prior authorization by a judge after full investigation a condition precedent to the right of a wife to sell her property, the courts are bound to recognize her capacity to sell under the authorization of her husband. While a sale by a wife of her property is the exercise of a broader right of ownership than would be the granting of a mortgage upon it, it by no means follows that a sale would necessarily carry more injurious results to the wife than would a mortgage. There are numerous instances where the law permits a particular act to be done in view and in exact knowledge of a present existing situation or condition when it prohibits the same acts being done by anticipation. Thus a party is not permitted to waive citation or renounce prescription in advance.

So far as the attack upon the act of sale between herself and Courrege is made to rest upon the fraud or coercion of her husband and Courrege, or error upon her part, we need simply say that, while those tacts would constitute good causes for rescission of the contract between the parties, the contracts themselves remain existing contracts until set aside. Article 188 of the Civil Code declares that engagements made through error, violence, fraud or menace are not absolutely null, but are voidable by the parties who have contracted under the influence of such error, fraud, violence, menace or by the representations of such parties.

These defects, by reason, of their latent character, are not as a general rule permitted to injuriously affect third parties who have acted in good faith.

The syllabus in the ease of Lester vs. Connell, 46 Ann. 340, declares that “where a married woman, separate in property, sells by authentic act her paraphernal property, although the sale disguised a mortgage for the benefit of the husband, yet if the notes given for the purchase price fall into the hands of innocent third parties, the special mortgage and vendor’s privilege securing the notes will be enforced. There is no distinction in principle between the holder of notes given for the purchase price of the property and the purchaser of such property, as the reliance of both the note holder and purchaser is upon the public record. When that discloses an unimpeachable title, the protection of the law is afforded as against unknown and latent defects. * * * The secret equities between the original parties cannot affect his title or impair its validity or the mortgage.”

In Thompson vs. Whitbeck, 47 Ann. 49, this court held that “ a married woman who makes a simulated sale of her property to serve the purposes of her husband, the title of the vendee bein^ recorded, is bound by her sale to one acquiring in good faith and for value on the faith of the recorded title.” (45 Ann. 1045.) The defendants are entitled to protection against plaintiff’s action.

For the reasons assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered and adjudged that there be judgment in favor of the defendants against the plaintiff, rejecting plaintiff’s demand and dismissing her suit with costs in both courts.


text:
    No. 14,101
    A. A. Browne, Sheriff, vs. J. C. Selser & Bros.
    Syllabus.
    The license tax as imposed is uniform, as required by the Articles of the Constitution, Nos. 225 and 229.
    The law-making power is not restricted in dividing trades and professions into classes and in assessing a license on the classes respectively, provided the classification be equal and uniform on all persons on the same class.
    Prior interpretation of the constitutional meaning is accepted as correct. 40th Ann. 463 ; 40th Ann. 466.

      APPEAL from the First Justice’s Court, Parish of Iberville. — • Cretin■, J.

      J. Hamilton Rills for Plaintiff, Appellee.

      Thomas H. Thorpe, and Lozano & Herbert, and Gustave Lemle, for Defendants, Appellants.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff, as tax collector, brought suit to recover a license tax, also penalties and costs from the defendant. The statute plaintiff seeks to enforce provides that every retail dealer in pistols and cartridges shall pay a license tax of twenty-five dollars.

Defendants’ contention is that Article 225 of the Constitution ordains that taxation shall be equal and uniform, and that license taxes be graduated. They attack the statute 83 of 1900, under which plaintiff made his claim against them for a license, on the ground that it is repugnant to, and in conflict with, the articles of the Constitution, because, they contend, the tax is not equal and uniform, besides, because as relates to pistols and cartridges, it is not graduated. With reference to equality and uniformity, defendants have not shown in what respect they have cause to complain.

The statute attacked has nothing about it at all discriminating in favor of any other article of commerce. It is equal and uniform, and applies to all merchants who deal in pistols or pistol cartridges. We will not dwell upon the policy which has evidently moved the legislator to select the business in pistols and cartridges for pistols as one which it was proper to tax. It was made to bear the burden of special license taxation for reasons deemed proper. It remains that other occupations and other articles are singled out and it has never been held that the licenses as to these were unequal and unfair because for special reasons they were placed in a class to themselves.

The question whether the statute attacked comes up to the requirement of the constitution as relates to the necessity of following a system of gradual license presents the difficulty in deciding. We take it that the defendant directs his attack against the statute on the ground that Section No. 2 of Act 83 of 1900 is unconsitutional, because not graduated in accordance with the provisions of Article 229 of the Constitution. The question of equality and uniformity, independently from the question of “graduation,” forms but a small part, if any, of the issues presented by the defendant or considered in the discussion.

It is not quite so clear that the legislator has “graduated” the license. Were the question one of first impression in this court, it may be that our conclusion would be different. Special statutes have heretofore been decreed legal, although the license was not in a close sense graduated. In view of the broad meaning of the word “graduate,” the interpretation has been heretofore quite liberal. Thus, in one of the eases decided, the court said: “The constitutional requirement relative to the graduating licenses, leaves it to the legislature to determine the method of graduation.” (41 Ann. 329.) This court has said in another decision that “unless defendant can point out some provision of the constitution requiring that the tax shall be graduated in exact proportion to the amount of the business done, it is of no avail as an attack upon the constitutionality of the law.” (State vs. Insurance Co., 40th An. 466.) The mode of graduating the license tax is not provided. (State vs. Chapman and Generally, 35th Ann. 76.) In the case just cited, the statute attacked imposed a specific license of fifty dollars if the 'traveling clerk represented one house, and seventy if he represented two or more houses. The court held that the license was legal, for it was, the court said, the only practicable mode and was in compliance with the constitutional requirement. “ Peddlers and transient dealers are commonly taxed a specific sum by the year because they are likely to escape any other.”

If transient dealers representing one house are taxable for a license without reference to the business of the house, a fortiori the retail dealer in the business of selling pistol cartridges and pistols can be taxed when the business is classed as in this ease with another class designated as wholesale dealers in.pistols and pistol cartridges. The question is in great part left to the legislative will. (State vs. O’Harra, 36th An. 25.)

The character of the business has been taken as a basis in fixing the amount of the license, in other cases the extent of the business, and in other eases the population of cities and towns in which the business is conducted. Tb.

The word “graduate” as used generally has 'broad meaning. It embraces steps, degrees, grades or intervals, that is, division into degrees, grades or intervals. The division here is by classification into wholesale and retail merchants. The tax is graded or graduated by reference to wholesale or retail and falls within the very broad requirement of the Constitution, as heretofore interpreted.

“The only restriction placed upon the power by the constitution is that the license tax, likened in this respect to a tax on property, shall be equal and uniform on all persons.” Ib.

We have seen that the license tax in this case is equal and uniform, and it falls within one of the degrees of grades of business designated as wholesale or retail. The term “graduate” is a term of extensive meaning. (State vs. Insurance Co., 40th An. 463.) “Who then is to determine what method of graduation shall be adopted? The constitution has expressly and distinctly confided this function to the General Assembly. The General Assembly has exercised it in the law before us.” (State vs. Insurance Co., 40 An. 465.)

For these reasons the judgment appealed from is affirmed.

Blanchard, J. concurs in the decree.

Rehearing refused.


text:
    No. 14,130.
    State of Louisiana vs. Joseph Fruge.
    Syllabus.
    X. Article XX6 of the onstitution was not Intended to abrogate or change the general rule of the common law, that, where an accusation of crime Includes an offense of Inferior degree, the jury may discharge the defendant of the higher crime and convict him of the less atrocious.
    2. The charge of horse stealing, under R. S. 8X4, does not, of necessity, Include the offense of “horse riding,” etc., denounced by Act No. 30 of X892. Nor, as a matter of fact, does the information upon which the defendant in this ease was convicted of the one offense include a charge of the other.
    3. In a criminal prosecution, it Is not necessary for the court, of Its own motion, or on request, to instruct as to the lower grades of crime involved, where there is no evidence on which to base such instruction. The giving of such Instruction is not only unnecessary, but improper.
    APPEAL from the Sixteenth Judicial District, Parish of St. Landry. — Lewis, J.

      Walter Guión, Attorney General, and B. Lee Garland, District Attorney {Lewis Guión, of Counsel), for Plaintiff, Appellee.

      Ogden & Sandoz (John N. Ogden, of Counsel), for Defendant, Appellant.
   Statement.

The opinion of the court was delivered by

Monroe, J.

The defendant in this case appeals from a conviction and sentence of imprisonment at hard labor for “horse stealing,” and brings his case before this court upon a bill of exceptions to the refusal of the trial judge to charge the jury “that, if they were not satisfied with the evidence adduced being sufficient to convict under “ the charge of horse stealing, that they, the jury, could find the “ prisoner guilty of ‘ horse riding,’ under Act No. 30 of 1892.”

The information upon which the defendant was prosecuted charges that “he feloniously did steal, take and carry away, one horse,” etc., a felony, punishable by imprisonment at hard labor for not less than one year nor more than five years. R. S. 814. The Act No. 30, of 1892.. referred to in the bill, is an act entitled “An act to define and punish “ the offense of riding, driving, or working, any horse, mule, ox, or “ oxen, the property of another, without the consent of the owner.” The text reads as follows, to-wit:

“Be it enacted; * * * That whoever shall, unlawfully, or “ maliciously, take and ride, drive, or otherwise work, any horse, mule, “ ox, or oxen, the property of another, without the consent of the “ owner, shall be guilty of a misdemeanor, and, upon conviction, shall “be fined in a sum not exceeding fifty dollars, or imprisonment not “ exceeding sixty days, or both, at the discretion of the court.”

Article 116 of the Constitution reads, “The General Assembly shall “provide for the selection of competent and intelligent jurors. All “ cases in which the punishment may not be at hard labor shall, until “ otherwise provided by law, which shall not be prior to 1904, be tried by “ the judge, without a jury. Cases in which the punishment may be at “ hard labor shall be tried by a jury of five, all of whom must concur “to render a verdict; cases in which the punishment is, necessarily, at “ hard labor, by a jury of twelve, nine of whom, concurring, may “ render a verdict; cases in which the punishment may be capital, by a “ jury of twelve, all of whom must concur to render a verdict.”

The trial judge incorporates in the bill of exceptions relied on, the following reasons for refusing the charge requested, to-wit: “The “ offense denounced by Act No. 30 of 1892 is triable by the court, and “ not By the jury. Constitution of 1898, Article 116. The offense, “ therefore, is not included in the charge of horse stealing, that is to “say, the jury having no constitutional right to convict of the crime' “ denounced by Act 30, of 1892, the requested charge was properly “refused. The offense created by Act 30 of 1892 is not, necessarily, “ included in the crime of horse stealing. A horse may be stolen and “ never ridden.”

It is not suggested in the bill of exceptions, nor does it otherwise appear, that there was any evidence offered upon the trial going to show that the defendant had ridden, driven, or otherwise worked, the horse which he is charged with having stolen.

Opinion.

The first question presented is, whether the redistribution of jurisdiction, as provided by the Constitution, was intended to operate a change in the general rule of the common law, that “Where an accu- “ sation of crime includes an offense of an inferior degree, the jury “ may discharge the defendant of the higher crime and convict of the “less atrocious.” This rule was adopted in Louisiana nearly a century ago and is deeply embedded in the jurisprudence of the State, as well as in that of all other States of the Union and of all countries where criminal prosecutions are regulated by the common law, and wa are not aware that it has, at any time, proved unsatisfactory, either here, or elsewhere. Upon the other hand, it is a fact, of which the court takes judicial cognizance, that, prior to the adoption of the present Constitution, without fault properly imputable to the prosecuting officers or the courts, there was much complaint in this State of the expense and delay in the matter of criminal prosecutions and trials. Grand juries were required by law to be composed of sixteen members, who, with the petit jurors, were entitled to their mileage, and per diem, and, from various causes, the different parishes through - out the State were subjected to great expense for the custody and maintenance of persons accused of crime and awaiting trial; and we entertain no doubt that it was that condition of affairs which led to the incorporation in the Constitution of the provisions now under consideration, the purpose of which, as we believe, is to remedy the evils complained of rather than to abrogate, or change, a long established rule, of which no complaint has ever been made. It will be observed that, by the article in question, the number of members required to constitute a grand jury is reduced from sixteen to twelve, and that, viewed in the light in which we are considering the matter, the remaining provisions nyist necessarily result in expediting trials and facilitating final results in all cases not capital. If, however, the article be construed to mean that the tribunal before which the greater offense must be tried is incompetent, whilst discharging the accused, with respect to such offense, to convict him of an offense included therein, but inferior in degree, its main and, we think, sole purpose will be defeated and, instead of expediting the disposition and reducing the expense of criminal prosecutions and trials, the effect will be the reverse, since the trials will be multiplied and the expense increased in proportion to the multiplication and to the delays incident thereto.

Our predecessors, in declaring what they believed to be the duty of this court in the matter of the interpretation of statutes, have at different times used language to the following effect, to-wit : “In interpreting a statute, regard should be had to the mischief it was in- “ tended to remedy.” 1 H. D. 784, No. 7; Poree vs. Bonneval et als., 6 Ann. 389. “The real intention, when ascertained, will always pre“vail over the literal sense of the terms. Scire leges non hoc est " verba earum tengre, sed vim ac poiestatem.” State vs. Poydras, 9 Ann. 166. “ A remedial statute must be so construed as to correct “the mischief at which it is aimed. Its policy, when evident, must “be respected and enforced.” 1 H. D. 784, No. 9; Fox vs. Sloo, 10 Ann. 11; Fox vs. New Orleans, 12 Ann. 154.

A question similar to that which is here presented arose under the law establishing the late Superior Criminal Court for the Parish of Orleans, and it was said by Ludeling, C. J.:

“The jurisdiction of the Superior Criminal Court, in which the “proceedings were had, is limited to offenses for which the penalty “may be death or imprisonment at hard labor in the penitentiary. “It is manifest that the court had jurisdiction to try the prisoner “under the charge preferred in the indictment, and this jurisdiction “ could not be ousted' by the verdict of the jury. Having had juris- “ diction to try the case, the court necessarily had power to render the “judgment on the verdict found. And it would seem the verdict is “ responsive to the indictment. In the indictment the accused is charged “with assaulting and inflicting a wound with intent to murder; by “the verdict he is convicted of assaulting and inflicting a wound. “without the intent charged. In the greater offense the intent is to “kill; in the smaller offense the intent to kill is wanting. The offense “ of which he is convicted is included in the one charged in the indict“ment.” State vs. Delaney, 28 Ann. 434.

Following the rules of interpretation thus recognized and applied, we are of opinion that the provisions of the Constitution which we are here called upon .to construe, in so far as they provide for the trial of crimes, inferior in degree, in a manner different from that provided for the trial of .the greater crimes, in which they are included, must be held to apply only in cases where the parties accused are prosecuted directly for the lesser crimes, and that those provisions cannot be held to mean that where a person is prosecuted for a crime which necessarily includes another, of an inferior degree, he may not be convicted by the tribunal, before which he is prosecuted, of the crime so included.

In considering whether a particular offense is included in an accusation of crime, within the meaning of the common law rule which has been stated, this court has said: “The test is that the two offenses, “the one .charged in the indictment and the other contained in the “verdict, must be of the same generic class, where the indictment for “the greater contains the substantive allegations necessary to let in “proof of the lesser; so that, if the proof fails to establish all the “ allegations of the indictment sufficiently to warrant a conviction “for the offense therein described, but, at the same time, shows the “ accused guilty of a substantive offense, necessarily contained in the “ terms of the indictment, the jury may convict of the minor offense.” But in the case from which the foregoing excerpt is taken it was held that, under an indictment for burglary, a verdict convicting the accused of larceny was invalid. State vs. Ford, 30 Ann. 313. And so, in State vs. Disch, 34 Ann. 1134, it was held that a verdict of trespass was not responsive to a charge of burglary. In the case at bar the information upon which the defendant was convicted does not contain the allegations necessary to charge the offense denounced by the Act of 1892; nor is that offense, which consists of unlawfully or maliciously riding or driving or otherwise working any horse, etc., the property of another, without the consent of the owner, necessarily, included in the crime of horse stealing, of which the defendánt was convicted, since a horse may be stolen without being ridden, driven or otherwise worked.

in.

But, if it had been otherwise, and if the crime of “horse riding,” etc., could be said to be included in that of “horse stealing,” it does not appear from the bill of exceptions relied on that, as a matter of fact, there was any proof offered tending to establish the crime of “horse riding,” etc., and hence, so fair as the record shows, there was no reason why the trial judge should have given the charge requested. “ On a criminal prosecution it is not necessary for the court, of its own “motion, or on request, to instruct as to the lower grades of crime “ involved, where there is no evidence on which to base such instrue“tion. The giving of such instruction is not only unnecessary, but “ improper.” Ency. PI. & Pr., Yol. 11, p. 211.

There is no error to the prejudice of the appellant in the judgment appealed from, and it is accordingly affirmed.

Rehearing refused.