author: McEnery, J.

text:
    No. 11,211.
    The State of Louisiana vs. Richard L. Robertson.
    Under tlie general welfare clause to be found in all municipal charters, which is often implied from the other powers granted, the city or municipality can not enlarge these powers further than necessary to carry into effect the specific power granted.
    All that the city of New Orleans can do in relation to boilers and steam machinery, under its charter, is to locate them, so that in case of explosion they will do the least injury.
    Ordinance No. 6647, “ an ordinance providing for the inspection of steam boilers, tanks, pipes, apparatus, etc., and to create a board of examiners and inspectors of engineers in charge of same, and to provide for penalties,” is illegal, null and void.
    Smith, J. PPEAL from the Fourth Recorder’s Court of New Orleans.

      E. A. O’Sullivan, Oity Attorney, for Plaintiff and Appellee.
    O. B. Sansum for Defendant and Appellant.
   The opinion of the court was delivered by

McEnery, J.

The Oity Council of New Orleans enacted'Ordinance No. 6647, council series, entitled “ an ordinance providing for the inspection of steam boilers, tanks, pipes, apparatus, etc., and to create a board of examiners and inspoctors of enginers in charge of the same, and to provide for the penalties.”

Section 1 of the ordinance creates the office of inspectors and prescribes the qualifications of the members of the board.

Section 2 fixes the term of office of the members of the board and the aniount of the bond to be furnished.

Section 3 vests in the board the power to inspect and test every boiler and apparatus under steam pressure used to propel or operate machinery not subject to inspection under the laws of the United States, and they are required to notify all owners or users of boilers and apparatus under steam pressure of the time when an inspection or reinspection and test shall be made.

Section 4 that the inspectors shall be furnished with an office at the City Hall.

Section 5 requires that the owners or users of boilers or steam generating apparatus under steam pressure must have the same inspected before use and at least once a year thereafter, and for every neglect or refusal to have said inspection and test made they shall, upon conviction thereof by the recorder having jurisdiction, be fined a sum of not more than $25, and in default of payment of said fine shall be imprisoned for not more than thirty days, or both.

Section 6 requires every owner and user of a boiler, etc., to employ at least one competent engineer holding a license or permit from the board, and a neglect to conform to this requirement is visited by fine, and, in default of payment, imprisonment.

Section 7 provides for the examination by the board of engineers, a certificate of license costing the sum of $5 for the first year and $2.50 for each renewal, which is required annually.

Section 8 regulates the amount of steam pressure as allowed by the certificate of the board of examiners.

Section 11 regulates the fees for inspection, which are required to be paid by the owners of the steam machinery and boilers, and the fees for inspection are graduated from $3 to $17.

The defendant, owner of the Marine Dry Dock, situated within the corporate limits of the city, refused to have his boilers and machinery inspected in accordance with the provisions of said ordinance and he was arrested, tried and convicted before the Fourth Recorder’s Court of said city. He appealed on the ground of the illegality and unconstitutionality of said ordinance.

If the ordinance is legal and valid, the power of the recorder to inflict the penalty is undoubted since the passageof Act No. 41 of 1892, which authorizes the recorder “to enforce obedience to or to punish the violation of all ordinances passed by the City Council thereof in execution of the powers and duties indicated in Secs. 7 and 8, and the amendments thereof of Act No. 20 of 1882, known as the charter of the city of New Orleans, by fine or imprisonment, or both, or by imprisonment in default of the payment of the fine, provided that the fine shall not exceed $25 for each offence, nor the imprisonment more than thirty days as provided by Sec. 12 of Act 131 of 1877.”

The penalty therefore under said act can be enforced for the violation of a city ordinance, as the right has been expressly conferred by the Legislature.

The only question therefore which is presented is as to the power of the Oity Oouncil to enact said ordinance. It is admitted that there is no express power granted to the city in its charter to'create the office of inspector and a board of inspectors of boilers and steam apparatus, and to require the owners and users of boilers and steam apparatus to employ engineers licensed by the city and for said users of such boilers and machinery to submit them to inspection and to pay fees therefor.

The contention of the city of New Orleans is that its charter authorizes it to pass all ordinances necessary to preserve the peace and good order of the city, and to maintain its cleanliness and health, and therefore it has the power to enforce by fine and imprisonment the violation of an ordinance for the protection of life and property, and that said ordinance was enacted for the protection of the lives of the citizens of New Orleans.

If said ordinance springs from a necessary and implied incident to the power expressly granted to preserve the public peace and to maintain the cleanliness and health of the city, it is a valid ordinance.

There can be no doubt that it does not spring from the power to preserve the public peace as incident to the exercise of that power.

Ordinances to preserve the public health have been liberally construed, and the authorities have gone to a great length in enumerating the implied powers of municipalities to enact laws to protect the community from infectious and contagious diseases, from bad water, against nuisance injurious to health, and noxious odors and gases. As the preservation of the public health and the safety of the inhabi-tants is one of the chief purposes of local government, all reasonable ordinances in this direction have been sustained.

The ordinance in question does not pretend to preserve and promote public health.

But it is claimed that it protects the life of the citizen by providing for the inspections of steam boilers, etc., and this is implied from the power to legislate for the public health, and that its preservation is necessary to protect the life of the citizen.

Ordinances of this character, to preserve public health, are generally directed to those objects which in themselves are presumed to be injurious to the public health, such as those enacted for the purpose of abating nuisances which are injurious to health, the location and regulation of markets, hospitals, slaughter houses, cemeteries, etc.; tho'se for the prevention of the introduction of contagious and infectious'diseases and their dissemination in the community, and on all matters which may promote the cleanliness and health of the city.

The establishment of steam machinery in a particular locality is not in itself injurious to public health. Tt is dangerous only either frpm coming into too close proximity to it, or from the explosion of boilers, or the breaking of the machinery.

If the ordinance is a valid one, it must fall under the general welfare clause, either found in charters of municipalities or inferred from the powers granted. Dangerous articles, such as gunpowder, oil, dynamite, or other such articles composed of elements which are likely to explode from the slightest extraneous causes, by the agitation of the particles composing them, are generally regulated under this implied or granted authority as to their location and sale; but even in these cases an enlargement of the powers granted will not be exercised further than necessary to carry into effect the specific power granted.

In the instant case the power to create the office of inspector and a board of inspectors and examiners, with the power to examine engineers and to grant certificates of competency, and to inspect boilers, etc., is nowhere to be found in the city charter, and the necessary implication for it can not be inferred from any of the powers granted. Probably the only implication ■ from the granted powers found in the charter would be the right to locate steam boilers, machinery and apparatus in a safe place, where an explosion would do the least injury.

It has been held, and properly so, that under the authority to make police regulations or to pass by-laws for the good government'of the corporation, it has the right to require hoistaways inside of stores to be enclosed by a railing and closed by a trap after business hours of the day. It was regarded as a reasonable regulation because it did not unreasonably interfere with private rights. But if these owners of the hoistaways had been compelled to pay for their repeated inspections, there can be no doubt that the exactions would have been held to be unreasonable.

We have carefully examined the ordinance and find it illegal in every feature. There is no power in the charter to authorize it; it is not a necessary implication from the specific powers granted, and is unreasonable.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided, reversed and annulled, and it is now decreed that said Ordinance No. 6647, Council Series, be declared null and void and the prosecution of defendant thereunder be dismissed.

Rehearing refused.


source: Caselaw Access Project

author: Breaux, J. Breaux, J.

license: Public Domain

text:
    No. 11,294.
    The State of Louisiana vs. Rick Murphy.
    There are two modes guarding against the abuse oí a witness on cross-examination who testifies in his own behalf as a defendant.
    1. The privilege to decline to answer any question which may tend to charge him as a criminal.
    2. The power of the court to protect the defendant from unreasonable or oppressive cross-examination.
    It is not shown that one or the other was denied.
    Where upon the trial the defendant offers himself as a witness and testifies in his own behalf, under statute of 1886, he thereby becomes subject to the same rules and is called upon to submit to the same tests which are legally applied to other witnesses.
    The question propounded to the defendant on his cross-examination was competent for the purpose of proving that he had been arrested for stealing prior to the date of the theft for which he was on trial.
    APPEAL from the Criminal District Court for the Parish of Orleans. Moise, J.

      M. J. Cunningham, Attorney General, for the State, Appellee.

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

Breaux, J.

The defendant was convicted of larceny.

From the verdict and judgment he appeals, and urges as error that the prosecuting officer propounded to him, while he was testifying as a witness in his own behalf, the question:

“ Have you ever been arrested for stealing?”

His grounds of objection were that he was compelled to answer, under the rulings of the trial judge, over his objections; that it tended to degrade his character.

That he had not put his character at issue.

That the records, if any, were the primary evidence of the facts sought to be proven.

In reference to the last objection the trial judge states, as part of the recital in the bill of exceptions taken by the defendant, that the defendant, as a witness, was not denied the privilege of explaining the circumstances of his arrest. Act 29 of 1886.

The defendant, in availing himself of the privilege of testifying in his own behalf, was subject to all the rules that apply to other witnesses. Act 29 of 1886.

The accused was not compelled to testify; the statute declares that the failure to testify shall not create any presumption against a defendant.

Having offered himself as a witness, and having testified, he was called upon to submit to the same tests which are legally applied to other witnesses.

The witness can decline to answer any question which may tend to charge him as criminal.

Moreover, the court has the power to protect him against unreasonable or oppressive cross-examination.

These modes of guarding against the abuse possible under the statute are not in question; it is not suggested that they were disregarded. The question complained of was propounded for the purpose of impairing the credibility of the witness.

The defendant appeared before the court in the dual capacity of an accused and that of a witness.

As an accused his character was not subject to attack unless he opened the question.

As a witness his position was different — his credibility was subject to attack. State of Louisiana vs. Walsh et al., 45 An.; State of Louisiana vs. Lee Taylor et al., 45 An.

The dividing line between the testimony admissible for the purpose of impeaching the credibility of a witness who testifies in his own behalf and that not admissible in his cross-examination, as it may tend to criminate him, is not always apparent.

As a defendant his character could not be impeached, that issue not having been opened by him.

As. a witness it could be impeached, as the character of any witness may be subjected to that test.

In other words he may be unworthy of belief, but this unworthiness is not to be considered in determining whether or not he is guilty.

While the attack upon the character of an accused is for the purpose of establishing that his plea is not supported by his attempt at proving character and that he is guilty.

Much is left to the good judgment and discretion of the trial judge.

His discretion was properly exercised, for the testimony was admitted, on cross-examination, and we understand was afterward referred to as admissible for the purpose only of proving the incredibility of the witness.

Proof of Arrests by Defendant’s Testimony, Admissible.

The question propounded was competent in its character. It was not objectionable as proving a fact by secondary evidence, and the production of a record or warrant could not be required.

The mere arrests were provable by the testimony of the defendant on his cross-examination.

The question was admissible for the purpose, whether or no there was a record. The warrant could issue from a court not of record.

Parol evidence is admissible for the purpose of proving that a particular person has been in prison. Wharton Orim. E., p. 754.

It follows that the testimony of the defendant was admissible to prove that he had been arrested at different times.

The judgment should therefore be affirmed.

Judgment affirmed.

On Application for Rehearing.

Breaux, J.

The accused appealed from the judgment and sentence of the court under a conviction of larceny, and complains of our opinion as erroneous on the sole ground, to-wit:

Having elected to take the witness stand in his own behalf he was compelled, aver his objections, to answer the followingquestion, viz..:

Have you ever been arrested for stealing?” and to which question counsel urged objections.

1. That the accused had not put his character at issue, and the State could not do so.

2. That it tended to degrade his character.

3. That the judicial records, if such there were, constituted the best evidence of the fact sought to be elicited by the question.

The theory of our opinion is, that the accused, under the law, occupied the same plane as other witnesses, and, upon cross-examination, could be submitted to the same tests.

That the question propounded did not tend to incriminate the accused, but to affect his credibility as a witness — he occuping, at the time, the dual position of accused and witness, and the weight and value of his testimony depending upon the credit same was entitled to receive.

The court held that as an accused his character could not be attacked by the prosecution until put at issue as a means of defence; but, as a witness, his situation was altogether different — his credibility being open to attack by any reasonable and proper means or methods.

Proceeding to deal with this question upon the principles laid down, the opinion states that, in such a case, the line of demarcation between the admissibility of testimony for purposes of impeachment of credibility and its inadmissibility as impeaching character is not always apparent, and, therefore, much must be left to the good judgment and discretion of the trial judge, who is better able to decide under the surroundings and circumstances of each particular case.

Counsel’s argument’ is that the objection urged is general, and would be equally applicable to any other witness than the accused— his insistence here being that want of credibility must be proved by general reputation, and not by particular incriminating facts.

That proposition is true when the evidence is offered for the purpose of impeaching the witness’ “ credit for veracity.” Such is the purport of the authorities cited. 1 Gif., See. 461.

But in this ease the trial judge had before him a person accused of and on trial for the commission of a larceny. Accepting the grace of a special statute, entitling him to be heard as a witness in his own favor, the veracity and credibility of the witness, generally, was proper subject-matter for investigation, because of the cloud that surrounded him and necessitated closer scrutiny into his veracity than-that of an ordinary witness.

Being under charge of larceny, what more damaging fact could have been elicited on the trial of such charge than that he had been previously arrested for similar offences.

There is no force in the objection to parol evidence being admitted of the/aoiof the defendant’s previous arrest. The object in view was to show that the one pending before the court was not the first accusation of the kind that had been preferred against him — not to show the truth or falsity of such charge.

Both the points made in the lower court were correctly disposed of.

Rehearing refused.


author: Breaux, J.

text:
    No. 11,284.
    Succession of Thomas A. Stephens.
    The qualified recognition of a legacy by the executor will not carry with it the payment of interest prior to demand for its delivery.
    A disposition by will in which the property donated is to remain in. the hands of the executor until a legatee who has arrived at the age of majority shall be twenty-four years of age can not be distinguished from one that seeks to prohibit the sale or other exercise of the right of ownership and is therefore an impossible condition, illegal and to be reputed as not written.
    The persons and estates of minors are placed under the power of tutors and under* tutors.
    Interest on particular legacies is due fx’om the day of demand for its delivery.
    APPEAL from the Oivil District Court for the Parish of Orleans. Monroe, J.

      Gus. A. Breaux for the Executor, Appellant.

      Chrétien & Suthon for the Tutrix, Appellant.

      George C. Préot and James D. Séguin for Appellees.
   The opinion of the court was delivered by

Breaux, J.

The questions for decision are:’

1. Whether an executor’s authority, after having invested the amounts of the legacies as directed, continues under the terms pf the will, and includes the duty of retaining possession and administering the interests for the protection and benefit of the legatees, or should he deliver the evidence of indebtedness and title of investment made by him to the legatees.

2. Whether the interest on a legacy of a certain amount runs from the date of the filing of the tableau recognizing the indebtedness of the succession.

By the following excerpts, from the testament of the decedent, the pertinent facts of the case are set forth, viz.:

“ After all my just debts are paid I give to Edna May Byrne, daughter of John P. Byrne and Ida Blackburn, the sum of $1000, to be put out at interest until she becomes of age, interest to be paid yearly for her education, clothing and support.
“I give to Octavia, Felicity and Jules Brunet, three children of Jules Brunet and Octavia Wolf, $500 each, to be put out at interest until they become of age, interest to be paid yearly.
“I give and bequeath to Sophie Bgloff, now living with Mrs. Alice Mora, $500, to be put out at interest until she. is twenty-four years of age, interest to be paid yearly.
“I give and bequeath to Bertha Egioff, now living in my house, $3500, whereof $3000 are to be out at interest during her life, the interest to be paid yearly, and the remaining $500 'are [to be paid in cash to her in two equal instalments of $250 each, one at my death and the other one year after my death. * * *
“I give the remainder of my effects to Mrs. Alice Mora, wife of Thomas Mora. * * ' * * * *
“ I charge my said executors to pay all my just debts, and then to distribute my estate as above provided, investing those legacies that are required to be put out at interest in such securities as they may deem best in the names of the said legatees.”

Two of the plaintiffs in rule, who apply to be placed in possession of certain legacies, are tutors of the minors who are legatees.

The plaintiff in another rule pending before us on appeal is of the age of majority.

The possibility that the disposition is a ftdei eommissum is suggested in argument; also that it involves a substitution.

It is also contended that an “impossible condition” attaches to the bequest.

In reference to the first ftdei eommissum, it being “ a disposition by which the donee, the heir or legatee is charged to preserve for or return a thing to a third person,” it does not include within its meaning any of the bequests of the will.

It does not contain any gift to the donees through the agency of a third person in confidence that he will dispose of the amount for the benefit of the donees — i. e., no one “ is charged to preserve for or to return a thing to a third person.”

The donations of the decedent are absolute. They are made without attempting to interpose any third person.

The investment of the funds as directed in the will, and the manifest desire of the testator of protecting the interest of the donees) do not involve a fidei eommissum.

In reference to the prohibited substitution tested by the discussion of the authorities and the decision, Marshall vs. Pearce, 34 An. 587, there being no duty imposed upon the executor and no condition attached to the donation to deliver the property ostensibly donated, or really donated for a period to another, the real donee at any time, it can not in reason be held to fall within the definition given.

In the opinion it is said: “ The • simplest test to the substitution prohibited by our law is that it vests the property in one person,

* * * and at the death of such person vests the same property in another person, who takes the same directly from the testator, but by a title which only springs into existence on the death of the first donee.

“ Such a disposition destroys the power of alienation of the property by the first donee, because he is bound to hold it until his death in order that the person then called to take the title may take it.

At the same time no power of alienation exists in the second donee during the life of the first, because this title only comes into being at the death of the 'taker.”

No such condition presents itself under the will in the case at bar.

The legatees have absolute title, transferable and heritable. No others are named to have any interest; it is therefore not a prohibited substitution.

In reference to impossible conditions, defined as being those that are contrary to the laws or to morals, and as such reputed .not written.

That article (900 of the Code Napoleon and Art. 1519 of the Louisiana Code) says: Marcadé, Yol. 3, p. 583,'declares that in gratuitous dispositions all conditions physically or legally impossible are made nugatory by law, to that extent that the disposition becomes one pure and simple, and has effect as if the impossible condition had not been written. If the condition is illegal it is ignored and considered not written.

The condition attached, relating to the administration of the property by the executor, has features denying to the donee of age the enjoyment to which she has a right as owner.

The intention of the testator is the law of the will.

“ I give and bequeath” are the positive and disposing words, intending to vest the donee with the right named.

They, the legatees, are the absolute owners.

“Ownership is the right by whic.h a thing belongs to some one in particular, to the exclusion of all other persons.” C. O. 488.

“ The ownership of a thing is vested in him who has the immediate dominion of it, and not in him who has a mere beneficiary right.” C. C. 489.

“ Ownership is perfect when it is perpetual and-the thing is unencumbered with any real right toward any other person than the owner.” C. C. 490. '

The legatees are vested with these elements of ownership.

The impossible conditions attached to the legacy are as if not written.

By executing the condition maintaining the executor’s possession and his right to administer, the property is practically taken out of commerce and the authority to alienate is denied.

As to the denial of the right of alienation to the owner we have the authority of Sirey, Codes Annotés, p. 387, Sec. 47, and Demolombe, Vol. 18, Sec. 290, in support of the statement that the condition not to alienate is an impossible one to impose upon a bequest of the ownership of property.

From the former we translate:

“ That condition is impossible and to be expunged prohibiting the legatee from selling or binding or encumbering the property before a certain epoch.”

From Demolombe:

The prohibition not to alienate is at most a precept, a nudum prseceptum.”

In Partee vs.'Hill, 12 An. 767, it was decided “that the appointment by will of trustees to receive a sum of money bequeathed by the testator, and to pay the interest on it annually^to the legatee, will be disregarded if the legatee refuses to acquiesce in the creation of such an agency.”

From Succession of Franklin, 7 An. 395, we quote:

“Any illegal or impossible condition the disposition may contain is presumed to have been inserted inadvertently ” and not written. Clague vs. Clague, 13 La. 1.

The propositions are well supported by trustworthy authority that impossible conditions are to be considered not written, and that the condition attached to the legacy o‘f the decedent is an impossible condition.

In his elaborate opinion the learned judge of the court a qua says:

“There appears to have been some, confusion in the following opinion of the impossible condition ’ with the fidei eommissum, but as the judgment sustained the legacy and merely held the condition to be void, its meaning, legally speaking, was that there was an impossible condition and that there was not a fidei eommissum, for if the latter had existed the whole bequest would have been null. 36 An. 754.
“ I am aware that there may be some difficulty in reconciling the . conclusion of the Supreme Court in the case cited with the ruling in Macias and Strauss cases, 31 An. 127, 38 An. 59, but as the case cited has not been overruled,'in terms, and is supported by other decisions previously rendered, I feel authorized to rely on it in this case.”

We concur in the conclusion of the district judge, relative to the Steven case, 36 An. 754, as authoritative when the legatee is sui juris.

The two cases, Macias and Strauss, deflect somewhat from the line of preceding decisions.

We will not discuss the departure.

They apply to the interests of minors.

Whatever may 'be the appreciation of those decisions, when the necessity will arise for their consideration we are confident that the principles announced will not be extended as applying to legacies to persons not under legal disability.

The legatee of age has the absolute right to the dominion of the property donated to her.

These last decisions countenance the creating of a quasi tutorship quoad the legacy.

They will have to undergo the test when a question arises involving the interests of minors.

In the ease at bar the minors’ interests are not affected by such a condition as attached to the legacy of the legatee of age.

It was not sought under the terms of the will to charge the executor with the duty of administering their interests until they are of age.

After investing the amount of the legacies it does not appear that it was the testator’s intention that he should collect and account for the interest until the majority of the minors.

The will being silent regarding the collection of and accounting for, the interest of the minors, that duty devolves upon the tutor.

“The persons and estate of minors shall in all cases be placed under the power of tutors and under-tutors. O. P. 958; Succession of Eueher, 30 An. 1017.

Interest is due from the day of the demand for delivery. O.O. 1626.

Interest is only due on particular legacies from the date provided in the article of the code.

In the ease to which our attention is directed the issue, it'appears, was as to whether the interest should run from 1857 or 1872. The court held that it should run from the last date. There was no question presented or decided as between the last date and that of demand.

In Ventréss vs. Brown, 34 An. 461, there was a question of equity:

“ Equity, besides, entitles Isaac D. Brown to that allowance. Interest was allowed his sister, Mrs. Faltus. There is no reason why she should not also receive it.”

We adhere to the article of the code that interest is due from demand.

Le legataire partiaulier n’a jamais droit aux fruits qu’a partir de sa demande. Marcade, Yol. 4, p. 69.

The judgment of the court a qua is affirmed at appellant’s costs.

On Application nor a Rehearing.

Conceding argumenti gratia the law points presented for appellants in their application for a rehearing, there are obstacles in the way of granting the application.

The executor acknowledged the legacies by carrying them in his account. But the conditions attached excluded them from the rank of legacies deliverable instanter.

The testator willed the payment of his debts; the investing of the amount of the legacies.

In reference to the legatees who are minors, he did not clearly direct by whom the funds should be managed, after their investment in accordance with the terms of the will.

In so far as related to the legatee of age the testator, after the investment, placed the management in the hands of the executor.

This restriction was nugatory, and the amount will now be turned over to this legatee.

The executor who files an account can not be held to the payment of interest on particular legacies; prior to the demand for their delivery, though he may recognize them as just and legal; if the admission is accompanied with conditions rendering it equitable and proper that interest be not allowed.

The sale of the property, the payment of the debts, the interpretation of the conditions of the will not clearly expressed, involved delay which the judge of the court a qua did not consider unreasonable. With his views upon the subject ours coincide.

, The legatee of age, as to interest, claimed that the rule sued out by her should be made absolute, in so far as to order the executor to invest the sum of $3000 in her name, with legal interest thereon from June 6,1891. Interest by the judgment is.allowed from 30th January, 1893, the date that her demand was filed, to the date of investment ordered.

She acquiesces in the judgment and does not apply .for a rehearing.

The appellant, John P. Byrne, natural tutor, claimed interest on a thousand dollars from 6th June, 1891.

By the judgment he is allowed interest fróm the date his demand was filed — i. e., November 28, 1892.

The other petitioner for a rehearing, Mrs. Octavia M. Wolf, natural tutrix of minors, who are particular legatees, did not in their rule for delivery of the legacy after investment claim interest from any time prior to the filing of her demand.

She was allowed interest from the day her demand for delivery was filed — i. e., 30th January, 1893, to the date of investment.

We think the judgment is correct and does justice to the parties.

Rehearing refused.


author: Fenner, J.

text:
    No. 1272.
    The State of Louisiana vs. Abe Thompson.
    1. It Is the duty of the court to instruct the jury upon every phase of the case made by the evidence. Where evidence is offered to prove a certain state of facts, and the claim is made that they are proved, the court should, if requested so to do, charge the jury what the law is as applicable to the facts claimed to be proved. State vs. Tucker, 38 An. 536, and 38 An. 789.
    2. When two parties have had a difficulty, if one of them quits the combat and retreats in good faith, and is pursued by the other, who continues to follow him up with violence and hostility, and should it become absolutely necessary for the one retreating to turn and fell his pursuer in order to save his own life, he is justifiable, whether he was the aggressor in the beginning of the difficulty or not. State vs. Tucker, 38 An. 536 and 789; Arehbold’s Criminal P. and P., Vol. 1, p. 690; Am. and Lng.Ency. of Law, Yol. 9,p. 602.
    3. A person free from fault when attacked by another, who manifestly attempts by violence to take his life, or to do him great bodily harm, and under such circumstances that no retreat is practicable, is not only not obliged to retreat, but may pursue his adversary until he has secured himself from all danger; and if he Sill him in so doing, it is justifiable self-defence. 1 East P. C. 271, 272; Luby vs. Com. 12 Bush (Ky.) 1; Pond vs. People, í Cooley (Mich.) 177; 2 Starkie on Evidence, 963; Poster, C. L. 273.
    1. In criminal trials it is the exclusive province of the jury to weigh and give effect to the evidence.
    5. "When a charge ashed was applicable to the facts, as set forth in the bill of exceptions, and 'when the trial judge does not specifically deny such facts, but virtually admits the material ones by quoting them in hypothetical casos in his general charge, then it was the plain duty of the trial judge to have given such charge; and his opinion of the merits of the case is no excuse fornot giving it.
    APPEAL from idle Criminal District Court for the Parish of Orleans, Baker, J.

      John J. Finney, Assistant District Attorney, for the State, Appellee.

      Chandler C. Luzenberg for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

The defendant was prosecuted for murder, convicted of manslaughter, and sentenced to pay a fine of $2000 and to suffer imprisonment in the State penitentiary at hard labor for the term of twenty years. He appeals from the verdict and sentence and relies for their reversal on two bills of exception taken to the refusal of the judge to give two special charges to the|jury as requested by him.

The first special charge is in the following words:

“I charge you that when two parties have had a difficulty, if one of them quits the combat and retreats in good faith, and is pursued by the other, who continues to follow him up with violence and hostility, and should it become absolutely necessary for the one retreating to turn and fell his pursuer in order to save his own life, he is justifiable, whether he was the aggressor in the beginning of the difficulty or not.”

It is not disputed that the charge embodies a sound statement of the law. State vs. Tucker, 38 An. 536, 789; 1 Archb. Cr. P. and P., p. 690; 9 Am. and Eng. Encyc. of Law, p. 602.

But the judge declined to give it, for the following reasons stated on the bill;

Per Curiam: The facts did not justify such a charge. Thompson was a strong, robust man, armed with a loaded revolver concealed on his person. Mitchell was a boy 17 or 18 years of age, unarmed and open handed. Thompson was not in danger of his life or of great bodily harm. He could have retired from the contest just as his companion Moore did. There was but one difficulty. Mitchell was shot in the back of his head, evidently turning away from his assailant.”

The charge may not have been justified by the facts as the learned judge appreciated them, but it was certainly applicable to the testimony given by witnesses in the case as carefully recited in the bill and not denied by the judge. The bill shows that there was testimony to the effect that there had been a collision and angry words between Thompson and deceased at the corner of Camp and Gaiennie streets, from which Thompson retired and retreated up Camp street; that deceased, with four or five companions, pursued Thompson, surrounding and beating him and assaulting him with bricks and stones up to the moment of his turning and shooting the deceased.

This testimony may have been true or false, or may have been in utter conflict with other superior evidence; but it was the exclusive province of the jury to estimate and determine its weight, and, if believed by the jury, it furnished proper and serious ground for the contention by counsel that it was necessary for defendant to turn and slay his pursuer in order to protect his own life, and hé was entitled to the special charge asked. We had occasion to discuss this subject very carefully in Tucker’s case, where we held as follows:

When a bill of exceptions recites the facts which the counsel had contended before the jury had been established by the evidence, and refers to the evidence in support thereof, and asks for charges applicable to the state of facts recited, the judge’s refusal to give the charges on the ground that they are inapplicable to the case is error, unless the judge states there was no evidence in the case supporting or tending to support the contentions of counsel.” State vs. Tucker, 38 An. 536.

The second special charge refused by the judge was the following:

If you find, from all the evidence heard upon this trial, that the accused was attacked by the deceased and others who manifestly attempted, by violence, to take his life or do him great bodily harm, and under such circumstances that no retreat was practicable, then I charge you, if you should so find, that under such conditions the party who is attacked is not only not obliged to retreat, but may pursue his adversary until he has secured himself from all danger, and if he kill him in so doing it is justifiable self-defence.”

The law as here laid down is not disputed by the judge and is supported by ample authority. 2 Starkie on Ev. 963; Poster’s Crown Law, p. 273; 1 EastP. O. 271; 9 Am. and Eng. Encyc. of Law,p. 600; Pond vs. People, 4 Oooley 177 (Mich.) ; Luby vs. Com., 12 Bush (Ky.) 1.

The judge gave the following reasons for refusing the charge:

“Per Curiam: I made three hypothetical cases in charging the jury, based upon the evidence and covering the law of murder, manslaughter and self-defence, as-applicable to the facts of the case. There was no attempt to take defendant’s life or to do him bodily harm. Retreat was eminently practicable, as defendant’s companion, Moore, retreated safely. There was absolutely no necessity for the taking of human life.”

Looking at the charges which the judge referred to as having been given, the only one having any applicability to the state of facts referred to in the charge asked is the following:

“If, however, you find from the facts of the case that the deceased and his companions were the aggressors; that they seriously assailed the prisoner at the bar, and pursued him to Camp street up to the point where the killing occurred; that they were armed with rocks or bricks or other dangerous missiles or weapons; that they surrounded the prisoner and began an attack so violent and fierce as to endanger his life or to inflict great physical injury on him, or to make the defendant honestly believe by reason of the Suddenness, violence and determination of the attack that his life was in danger, or that he was in danger of great bodily hurt; that the suddenness of the attack and the numbers of his assailants was such that he could not escape, and that it was necessary for him under the circumstances and to preserve his life or his person from great bodily harm to slay the deceased, then he is not guilty, and you should so find by your verdict.”

This is an excellent statement of the law as far as it goes, but a comparison of it with the charge asked shows that it entirely omits the vital point in the latter touching the right of the defendant, under the circumstances stated, “ to pursue his adversary ” in order to secure himself from danger. The recitals of the bill, not contradicted by the judge, show evidence to the effect that at the moment of the shooting the deceased had turned and was trying to get away from the accused and was actually running away, and that, thereupon, the counsel for the State contended ohat these facts were fatal to the defence.

pt thus became important to accused to have the law correctly charged as to his rights to turn upon a retreating adversary and even to pursue him if necessary to secure his own safety.

We are bound to hold that the judge erred in refusing the charge asked. His statements that retreat was practicable, that there was no attempt to take the life of accused or to do him bodily harm, and no necessity for taking]life,]are obviously the judge’s inferences from the testimony, which belonged to the exclusive province of the jury, there being evidence tending to show the contrary and justifying defendant’s counsel in so contending.

It is therefore adjudged and decreed that the verdict and sentence appealed from be annulled and set aside, and that the case be remanded to the lower court for 'a new trial and further proceedings according to law.


author: Watkins, J.

text:
    No. 1265.
    The State of Louisiana vs. John Alexis.
    In case an accused person avails himself of the grace of the special statute authorizing him to testify in liis own behalf, he occupies the dual position of witness and accused, and his credibility may be attacked by interrogating him in reference to his having been previously prosecuted or criminally punished, and his character indirectly involved.
    APPEAL from the Fifteenth District Oourt, Parish of East Baton Rouge. Buckner, J.

      Geo. K. Favrot, District Attorney, for the State, Appellee.

      Gross & Gross for Defendant and Appellant.
   The opinion of the court was delivered by •

Watkins, J.

From a conviction of the crime of petit larceny and sentence to six months’ imprisonment in the penitentiary, the defendant prosecutes this appeal, relying upon a single bill of exceptions which he reserved to the ruling of the trial judge with regard to the admissibility of certain testimony.

It appears from the bill of exceptions that the accused availed himself of the grace of the special statute on the subject, and testified as a witness in his own behalf, and during the cross-examination he was asked the question whether he had not previously served a term in the penitentiary. To this question the objection was interposed that it involved a quest!on of character, and it could not be drawn in question by the prosecution for the reason that the defendant had not put it in issue.

This identical question was raised and decided contrary to present contention in the recent case of State vs. Rick Murphy, 45 An. —, the theory of our opinion being that the question was rather one touching the credibility of the accused as a witness than his character for honesty. The court was of opinion that the position occupied by the defendant was dual, he being, at one and the same time, witness and accused; and that, occupying such position, the prosecution was thus entitled to test his credibility. Whar. Crim. Ev., Sec. 489; 33 An. 537.

Judgment affirmed.


text:
    No. 1275.
    The State of Louisiana vs. Sarah Nash.
    There having been no note of the evidence taken at the trial, except that which counsel has summarized and incorporated in a bill of exceptions, we feel bound, under repeated decisions, to accept the judge’s statement in case of any variance between them. And the statement o£ the judge being that the confession of the accused was free and voluntary, it was admissible in evidence.
    APPEAL from the Fifteenth District Court, Parish of East Baton Rouge. Buckner, J.

      Geo. K. Favrot, District Attorney, for the State, Appellee.

      G. W. Burgess for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

The accused having been convicted of petit larceny and sentenced to six months’ imprisonment in the State penitentiary prosecutes this appeal, relying for relief upon a single bill of exceptions taken to the ruling of the trial judge admitting in evidence certain confessions — her objection being that they were not freely and voluntarily made, but “extorted under duress and threats of criminal prosecution.”

The defendant’s bill of exception states that the pertinent evidence was, in substance, that the prosecuting witness had called her out of his house and took her in custody, having caught her stealing chickens, stating that he was going to put her in' jail; whereupon the said accused made statements admitting the theft, and promising to pay the prosecutor for the stolen property if he (the prosecutor) would keep her from going to jail.

But the trial judge appends to the bill of exceptions the following statement of the proven facts of the case, viz.:

“ It was proven by the State, by Richard Williams, that he. had caught the accused in his yard and in possession of four chickens. That she had fled, but was pursued and caught, and, while in the possession of the prosecuting witness (who was not an officer), she offered to pay for the chickens. All this was voluntary on the part of the accused.”

The judge’s ruling was undoubtedly correct. There was not, in our opinion, the least show of force or coercion used by the prosecutor to superinduce the confession made. The accused was caught in the actual possession of the property that had been recently stolen, and the captor was not an officer of the law.

We simply adhere to a general principle announced in many cases, that we feel bound to accept as our guide the statement of fact that is furnished by the judge in case of there being any doubt as to the facts proved at the trial — the testimony not having been reduced to writing and appended to a bill of exceptions. State vs. Pomp Joseph, 45 An.

Judgment affirmed.


author: MoEnhry, J.

text:
    No. 1273.
    The State of Louisiana vs. W. A. Jackson.
    Act 35 of 1880 authorizes the district attorney to file information in the office of the clerk of the District Court, when not in session, in all eases where the penalty is not imprisonment at hard labor or death. His duty in filing such information is not limited to those held in custody by the sheriff.
    APPEAL from the Third District Court, Parish of Union. . Barksdale, J.

      J. D. Everett, District Attorney, for.the State, Appellee.

      Kidd & Van Hook for Defendant and Appellant.
   The opinion of the court was delivered by

MoEnhry, J.

The defendant was convicted for retailing spirituous liquors without a license, and fined in an amount over three hundred dollars.

He was tried on an information filed by the district attorney, under Act -35 of 1880. He filed a motion for a new trial on the ground that the verdict of the jury was contrary to the law and the evidence, and that the district attorney in his closing address to the jury referred to matters outside of the record, which were calculated to mislead them. The motion was overruled, and he then filed a motion in arrest of judgment, “ for the reason that the. bill of information on which defendant was tried and convicted by the jury was filed at a time when no court was in session and out of term time, and avers that such proceedings in a case of this character are illegal, null and void.” This motion also was overruled.

1. There is no evidence in the record to sustain the ground alleged that the verdict was contrary to the law and the evidence. The second ground for the motion, the indiscreet utterances of counsel in argument, is disposed of for the reasons assigned in the case of State vs. Randall Anderson and Allen Blackstone (45 An.), recently decided.

2. Act No. 35 of 1880, under the provisions of which the defendant was tried, is not logically arranged by sections. The several sections are, however, closely related and germane to each other, and the act as a whole is consistent. The title of the act is “to provide for the trial of offences where the penalty is not necessarily imprisonment at hard labor or death, and the several sections of the act are responsive to this title.

Logically arranged the act authorizes the holding of the District Courts at terms other than regular jury terms, and empowers the judge to order a special jury for the trial of all criminal cases where the penalty is not necessarily imprisonment at hard labor or death. That in all trials of such cases, under the 'act, they shall be before a jury of five, giving the defendant the right to elect to be tried by the court, and to challenge five jurors peremptorily and any number for cause.

In the trial of cases provided for, the district attorney is authorized to file informations in the office of the clerk of the district court, which said filing shall be as valid as if made in open court. The act provides that the sheriff shall, immediately after the arrest and commitment of any person charged with an offence triable under the act, notify the district attorney.

The title of the act indicates its object, which is to provide .for the trial of all offences where the penalty is not necessarily imprisonment at hard labor or death. The several sections of the act, as we have stated, are responsive to the title. The section of the act which makes it the duty of the sheriff to notify the. district attorney of all persons charged with such offences, who are under arrest, does not limit his authority to file informations only against those whom the sheriff holds in custody.

The intention of this section was that the district attorney should be so notified in order that 'he might proceed at once to file the information required by the act, and the sheriff’s duty imposed by the act was merely to aid and assist the prosecuting officer in the discharge of his duty. The information was filed by the district attorney on his oath of office. While it is usually filed upon knowledge given by some other person than the district attorney, in this State he can file rb on information originating with himself. The act authorizes him to file informations for offences described in the act with the clerk of court, and to have the same validity as if filed in open court. It is clearly the meaning and intendment of the act that the information could be filed with the clerk when the court was not in session, as the act authorizes the judge to order a special jury to be drawn to try such offences at other than regular jury terms.

The information is clothed with all the regularity as though filed in open court.- Its validity as to form and substance is not questioned. The proceeding instituted by the district attorney was authorized by the act and he has literally followed its requirement.

Judgment affirmed.


author: McBnery, J.

text:
    No. 1274.
    The State of Louisiana vs. W. A. Jackson.
    Same as in case o£ State ys. Jackson, 1273.
    APPEAL from the Third District Court, Parish of Union. Barksdale, J.

      J. D. Everett, District Attorney, and M. J. Cunningham, Attorney General, for the State, Appellee.

      Kidd & Van Hook for Defendant and Appellant.
   The opinion of the court was delivered by

McBnery, J.

The defendant was tried on an information filed in the office of the clerk of the District Court, and, in accordance with provisions of Act 35 of 1880, convicted and sentenced to pay a fine of over three hundred dollars. He appealed.

He filed a motion for a new trial and in arrest of judgment.

The motion for a new trial is based on alleged errors of the trial judge on sustaining peremptory challenges by the State to certain jurors, and to the charge of the court that all parties aiding or abetting in any manner, for any purpose, or for no purpose, any person retailing spirituous liquors without a license, was equally guilty as the actual owner of the liquors, and that said charge was misleading,” etc. There were no exceptions taken at the time and bills reserved to the ruling of the trial judge. We can not therefore notice these alleged errors referred to and embraced in a motion for a new trial for the first time. We- may add, however, that there 'is no force in the motion and that it is entirely without merit.

The matter urged in the motion for arrest of judgment is identical with the issues presented in a like motion in the case of State vs. Jackson, No. 1273, just decided.

For the reasons in that ease and those herein assigned, the judgment appealed from is affirmed.


text:
    No. 1275.
    The State of Louisiana vs. C. D. Covington.
    A juror who states that he has formed an opinion as to the guilt o£ the accused from talking with a witness for the State, but that he can disregard that opinion and render a verdict in accordance with the law and the testimony adduced on the trial, is a competent juror. State vs. Dugay, 35 An. 327, affirmed.
    In a motion for a new trial the unsworn statement of the accused as to newly discovered evidence is not sufficient. It must be corroborated. The granting of new trials is largely within the discretion of the trial judge, which will not be disturbed unless manifestly erroneous. State vs. Washington, 3G An. 311, affirmed.

      Barksdale, J. PPEAL from the Third District Oourb, Parish of Union.

      J. D. Everett, District Attorney, and M. J. Cunningham, Attorney General, for the State, Appellee.
    Defendant in propria persona.

   The opinion of the court was delivered by

McEnery, J.

The defendant was indicted for the offence of retailing intoxicating liquors without a license, convicted, and fined the sum of §310. He has appealed.

He complains of the impaneling of an incompetent juror and the overruling of his motion for a new trial on the ground of newly discovered evidence.

The juror against whom the objection is urged answered on his voir dire and stated that he had formed an opinion from conversing with one of'the witnesses for the State, but that he could lay aside the opinion he had formed and decide the case on the law and the evidence adduced on the trial. The defendant had exhausted his challenges when he challenged the juror for cause, which was overruled.

The answer of the juror disclosed that he was a competent juror, that he was free from bias or prejudice and his mind in that condition to impartially try the defendant.

In case of State vs. Dugay, 35 An. 327, this court said: “ Our last researches on this point were suggested in the case of State vs. Ranee, 34 An., p. 186, in which we took occasion to make a thorough review of previous opinions on this subject and in which we reaffirmed the rule sanctioned in numerous cases, under which jurors who had formed and expressed opinions as to the guilt or innocence of the accused, but who asserted that they felt able to do impartial justice according to the law and the evidence in the case, were ruled to be competent jurors. We now distinctly and emphatically reiterate that this is the correct rule, with the reasonable hope that it will be clearly understood by the profession.” State vs. Dent, 41 An. 1083; 40 An. 740; 42 An. 255; 43 An. 365.

The answer of the juror brings him within the ruling of the cases cited.

The motion for a new trial on the. ground of newly discovered evidence is supported only by the unsworn statement of the defendant.The mere statement of the accused that he did not know of the testimony is insufficient. His statement must be corroborated. The object of the new evidence was to show that the defendant had sold the whiskey six months before the filing of the bill. This was a fact within his own knowledge, and therefore no ground for a new trial, as he could have stated the fact as a witness.

The granting of new trials is largely within the discretion of the trial judge, and will not be disturbed unless manifestly erroneous.

The other ground, that the juror,'Manning, was a nephew of the witness upon whose testimony the conviction was had, is without merit.

Judgment affirmed.


text:
    No. 1271.
    The State of Louisiana vs. John Clifford.
    Where a party has been prosecuted by the municipal authority of the city for fighting and disturbing the peace; this is no bar to a prosecution for the same offence by the State.
    The statement of the judge copied in the bill of exceptions is not questioned; if it were it would not avail the defendant in his defence, for this court will not review the evidence in the record to determine whether the venue of the crime was proved.
    APPEAL from the Criminal District Court for the Parish of Orleans. ’ Moise, J,

      J. P, Madison, District Attorney, for the State, Appellee.

      John C. <& Chas. A. WioJcliffe for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux,.J.

The defendant was found guilty of assaulting and beating one Lilly Jane Clifford, and condemned to suffer imprisonment for the term of one year, or to pay a fine of $350.

From the sentence and judgment he appeals.

In the lower court he waived trial by jury and was tried by the judge.

His grounds of appeal are:

1. That the court a qua erred in overruling his plea of autre fois acquit.

2. That there was a total failure on the part of the State to prove the venue as laid in the indictment.

For the purpose of sustaining the plea of autrefois acquit the defendant proved that prior to the filing of the information against him he was prosecuted in the first recorder’s court for violating ordinance No. 3121 C. S. of the city of New Orleans by fighting and disturbing the peace.

That he was found not guilty and discharged.

That the assault and battery for which he was found guilty in the District Court is that of which he was found not guilty in the recorder’s. court.

Though the decisions are not uniform the clear weight of authority sustains the proposition that an act may be a penal offence under the laws of the State and may also be subject to a penalty by the municipal authority.

_ Certain trustworthy authorities hold that there is more safety to the community in two conservators of the peace than in one, and that the same act may be an offence both, against the State and the municipal corporation, and that both may be punished without any violation of constitutional principle.

Others.make a distinction between the judiciary power and the police power.

The same state of facts may constitute separate offences — one punishable under the grants of power to the municipal corporation, the other punishable under the laws of the State. It is a matter within the control of the Legislature and may be regulated under constitutional limitations, according to the exigencies of the various municipalities of the State.

In view of the necessity of maintaining peace and good order within the limits of the municipality, acts of incorporation are adopted granting needful powers.

The recorders have the right to arrest and punish offenders against the corporation.

The offence referred to above is deemed an offence against the right of the corporation, for which fine or imprisonment may be imposed, and in thus punishing, it is the particular offence against the corporation that is punished, and not the act of assault and battery denounced throughout the State.

The article of the Constitution ordaining that no person shall be twice put in jeopardy of life or liberty for the same offence was not intended to apply to trial under corporate proceedings for wrongs done and the violation of ordinances adopted with the view of maintaining peace and security under corporate authority, so as to operate a bar to a prosecution on the part of the State.

The purpose of the ordinance was not to punish for any offence' against the criminal justice of the country, but to maintain due regulation as an incident of the existence of the corporate organization.

In reference to the distinction between the judiciary power and the police power, it appears to be retained in certain respects, both in the Constitution and under the charter of the city.

The police power delegated to the corporation is distinguished from the regular judiciary power of the State.

The General Assembly may provide police courts with authority to enforce municipal ordinances, and the city of New Orleans has the right to appoint the several public officers necessary for the administration of the police of the city. Articles 136 and 253.

In legislating under the authority of these articles, the General Assembly delegated the power to the City Council and made it “their duty to pass such ordinances and to see to their faithfu* execution as may be necessary and proper to preserve the peace and good order of the city.” Sec. 7 of Act 20 of 1882.

But the control of the municipality is not exclusive.

The control of the State law upon the subject is not in any respect superseded.

Not being inconsistent, each stands and is to be enforced.

This point received careful consideration in the case of State of Louisiana vs. M. Eourcade, recently decided, and was overruled.

We are confirmed in the correctness of the views expressed in that decision.

Proof of Venue.

The judge, by his recital of the facts in the second bill of exceptions, states that the venue was proven.

The defendant’s objections are that the evidence was not such as to prove the venne of the crime.

If we were not satisfied of the proof, and that the objection is unfounded, the defendant’s ground to set aside the action of the court a qua could not be sustained, for it is no longer an open question; this court will not review the evidence in the record to determine whether the venue of the crime was proven or not. State vs. Turner, 38 An. 307; State vs. Alex. Starks, 42 An. 316; State vs. Nettles, 41 An. 323.

The judgment is affirmed.


author: Fbnneb, J. Watkins, J.

text:
    No. 1278.
    Isaac Freiberg & Bro. and Others vs. A. Langfelder. Mrs. Pauline, Intervenor.
    While we have recognized the practice, in cases of ambiguous jurisdiction, of taking appeals at the same time from District Courts to the Circuit Courts of Appeal and to this court, parties availing themselves of this privilege subject themselves to the risk that if the first appeal shall not be determined by the court in which it is lodged prior to the return of the second appeal, the latter necessarily lapses.
    It is a legal impossibility that there can be two appeals, by the same party, from the same judgment, pending at the same time in two different courts.
    The Circuit Court to which the first appeal was returned had exclusive authority to determine primarily its jurisdiction over the appeal, and. until it has declined jurisdiction or has been denied jurisdiction under an appeal to the supervisory jurisdiction of this court the pendency of the appeal is a bar to the prosecution of an appeal, involving the same subject matter, to this court.
    Appellees who are held in the Circuit Court under the appeal still pending there, can not be, at the same time, impleaded in this court under the second appeal.
    Appeal dismissed without prejudice to right of new appeal in case the Circuit Court shall decline or be denied jurisdiction.
    APPEAL from the Fifth District Court, Parish of Ouachita. Richardson, J.

      Qunby- & Sholars for Plaintiffs and Appellants.

      Boatner & Lamkin for Intervenor, Appellee.

      Stubbs & Bussell for Defendant.
   The opinion of the court was delivered by

Fbnneb, J.

The several plaintiffs in these cases having encountered adverse judgments in the court below, and being, as we suppose, in doubt as to whether the cases were within the appellate jurisdiction of the Circuit Court of Appeals or of this court, applied for and obtained, at the same time, two orders'of appeal, one to the Circuit Court returnable on the first Monday of June, 1893, and the other to this court on .the second Monday of June, 1893.

A motion to dismiss filed by appellee brings to our notice the fact (admitted by appellants) that the first appeal was duly lodged in the Circuit Court and was pending in said court undetermined at the time when the appeal was filed in this court, and still remains undetermined.

In consideration of the double appellate jurisdiction granted to the Supreme and to the Circuit Courts over District Courts and of the uncertainty which sometimes attends the determination as to which is the proper appellate tribunal, we are disposed to recognize the practice which seems to prevail, in ambiguous cases, of taking, at the same time, orders of appeal to both appellate courts.

In the case of Bennett vs. Creditors, decided at this term, where appeals had been taken both to the Circuit Court and to the Supreme Court, and where the appeal to the Circuit Court had been dismissed for want of jurisdiction before the appeal to this court had been filed here, we declined to dismiss the latter appeal, saying: “ The first appeal prosecuted was a nullity, and the second, valid and legal. It was in force and could be prosecuted in accordance with the order granting it. Because the other order obtained at the same time was null and void, it could not affect the order of appeal made returnable to this court.”

If this case stood in like position we should pursue the same course. But the case before us is essentially different. We are confronted with the fact that the appeal taken to the Circuit Court was duly prosecuted and had been lodged in that court before the appeal was returned in this court and is still pending there undetermined.

Is it possible that there can be two appeals by the same party, from the same judgment, pending, at the same time, in two different courts? We can discover no warrant of law for such a proposition. It may be that the appeal to the Circuit Court may be nugatory as not within its jurisdiction, and that the Circuit Court may so decide and dismiss that appeal as it did in the Bennett case. But the Circuit Court is vested with unquestioned and exclusive authority to determine primarily the question of its jurisdiction over the appeal. When it has decided, resort may be had to our supervisory jurisdiction to compel or forbid it to entertain jurisdiction; but we have universally declined to exercise our supervisory powers until the question of jurisdiction has been first .submitted to and decided by the Circuit Court. Bor us to entertain jurisdiction of the appeal to this court would be, in effect, to order a dismissal of the appeal to the Circuit Court in advance of any determination by that court of its own jurisdiction. The two appellate jurisdictions are. exclusive of each other. If this court has jurisdiction the Circuit Court can not have it — at least over the whole judgment, and both appeals' are taken from the whole judgment without discrimination. Appellants have themselves invoked the appellate jurisdiction of the Circuit Court and' they must submit to that jurisdiction until it has been determined in proper proceedings and by proper authority that the Circuit Court has no jurisdiction. Then, and not till then, can they appeal to this court. We can not, in this case, decide that the Circuit Court has no jurisdiction of an appeal regularly taken and pending before it; and it is impossible for us to entertain this appeal without so deciding.

It is, no doubt, unfortunate for appellants that their two appeals ' thus find themselves in conflict. But it was a risk that they assumed when they took the two appeals, that if the first appeal was not disposed of before the return day of the second the latter would necessarily lapse. It is a legal impossibility that they should bring their second appeal to this court while their first appeal is still pending undetermined in the Circuit Court. It does not lie in the mouths of appellants to ’ question the jurisdiction of the Circuit Court which they have themselves invoked. Their adversaries may question it, and if they do so successfully appellants may then invoke the jurisdiction of this court, but so long as the appellees are held under the appeal in the Circuit Court they can not be impleaded in this court under an appeal by. the same parties from the same judgment.

We have reflected on appellant’s dilemma from every point of view without being able to discover any alternative except to dismiss the appeal. In doing so we shall reserve their right to take a new appeal to this court in case the Circuit Court shall be held to be without jurisdiction.

It is therefore ordered that this appeal be dismissed without prejudice to appellant’s right to take a new appeal to this court in case the pending appeal to the Circuit Court of Appeals shall be dismissed for want of jurisdiction.

On- Application for Rehearing.

Watkins, J.

Counsel for appellant insist that in dismissing defendant’s appeal our opinion runs counter to the Constitution and law — relying_on Henry vs. Tricou, 36 An. 520, and supported by an elaborate and extended argument.

We will premise these remarks by stating that the dicta announced in Henry vs. Tricou has been called to our attention for the first time in this application. It certainly is in conflict with our ruling in this ease; but we feel bound to overrule that decision. It is couched in dogmatic terms, unsupported by thoughtful reasons and. has not been followed by confirmatory precedent.

With the utmost desire to preserve'uniformity in the rulings of this court, especially upon points of practice, a hasty departure from sound and logical principles ought not to compel us, in the language of Chief Justice Black “ to stumble again, every time we come to the place where we stumbled before.”

We note the statement on the application to the effect that our opinion is slightly in error in saying “that the appeal taken to the Circuit Court had been lodged (our italics) in that court before the appeal was returned into this court,” etc., counsel’s insistence being that the record shows that orders of appeal were simultaneously granted, and appeal bonds to this court and the Circuit Court simultaneously filed — thus vesting jurisdiction in each of. said courts simultaneously.

On this hypothesis counsel say:

“ Then it necessarily follows that the appeal was lodged in 'the Supreme Court at the same time and in the same manner that it was lodged in the Circuit Court,” etc.

While the filing of the appeal bond certainly divests the jurisdiction of the court of first instance, and, presumably at least, vests the appellate court with jurisdiction, yet the appellate court is fully vested with the power of determining when an appeal is properly brought before it. No other court or tribunal is competent to do so. And in order to determine that question in this case, we think we must examine and be controlled by the order.of appeal. Looking into the order of appeal, we find that the Circuit Court appeal was made returnable on the first Monday in June, 1893, while the appeal taken to this court was made returnable to this court on the second Monday in June, 1893, just a week later.

If the appellants pursued the tenor of this order of appeal, and filed a transcript in each one of the appellate courts on the respective return days, it is evident that, as our opinion states, “ the appeal taken to the Circuit Court had been lodged in that court before the appeal was returned into this court.”

The clerk’s endorsement on the transcript shows same to have been filed on June 13, 1893, which was the second day of the present term, or eight days subsequent to the return day of the appeal in the Circuit Court. Appellee’s motion to dismiss appeal was filed in this court on June 14, and the case was argued and submitted on that day.

To this motion is appended the certificate of the clerk to the effect that the appeal had been prosecuted to the Circuit Court and that the case had been argued and submitted in said court and was at the time under advisement by the judges thereof. It is manifest that the statement of our opinion was strictly correct.

In our opinion appellee’s motion does not involve a question of jurisdiction, but the question of the appellant’s right to bring up an appeal to this court during the pendency of another appeal in the Circuit Court. If this court should proceed with the case and decide it, we might be confronted with a different judgment rendered by the Circuit Court. True it is that the Circuit Court might, through courtesy, suspend its judgment so as to conform to our own.' But there» is no assurance of that course being pursued, nor could this court expect the Circuit Court so to do.

But this is an argument ab inconvenienti. The proposition of appellant’s counsel involves the philosophical impossibility of two bodies occupying the same space at the same time.

There can not be such a thing as a suit being in two courts at one and the same time.

This the appellant has attempted to do, and we simply decline to take cognizance of the appeal he has lodged in this court, since his appeal in the same case was lodged in the Circuit Court.

We have gone very far — possibly too 'far — in permitting such radi<cally inconsistent pleading as the taking of two self-contradictory ■orders of appeal from the same judgment, to two different courts, at -the same time. No express provision of law sanctions such a practice, and we have given it our approval only to relieve parties from ■the responsibility of deciding, in advance, doubtful questions of jurisdiction ; and to relieve them from the unfortunate consequences resulting in case the order of appeal first returned and presented for Action should be annulled for want of jurisdiction.

In that case the second order of appeal would remain in force and might be prosecuted without encountering any conflict of jurisdiction. But to claim that a- party who has lodged and is actually prosecuting ■an appeal in the Circuit Court can afterward, and’while that appeal is still pending, return into this court another appeal, identical in •every respect, is to demand what we characterize as a “ legal impossibility ” — and we cannot demonstrate this more completely than was done in our original opinion..

Rehearing refused.


author: Eennbr, J.

text:
    No. 1269.
    A. B. Ausbacher & Co. vs. Edward De Nevue.
    1. Where a party has removed from one parish to another, hut has not made a formal declaration of his intention to change his domicil, if a year has not elapsed since his removal it is optional with a party desiring to sue him to bring the suit in either parish.
    2. In cases of ambiguous domicil a presumption attaches in favor of the continuance of the former domicil, and if a party so acts as to leave it doubtful in which of two places he resides, parties interested may sue him at either.
    APPEAL from the Fifth District Court for the Parish of Ouachita Richardson, J.

      Potts & Hudson for Plaintiffs and Appellants.

      Chas. T. Madison, Curator ad hoe, for Defendant and Appellee.
   The opinion of the court was delivered by

Eennbr, J.

This is an attachment suit brought against the defendant under paragraphs 1, 4 and 5 of the Code of Practice. A curator ad hoe was appointed to represent the absent defendant, who appeared and filed an exception to the jurisdiction of the court, on the ground that the defendant was domiciled in the parish of Orleans, and had been for two years prior to the institution of the suit, and that he had not left the State permanently, and had no intention of doing so.

Judgment was rendered sustaining'this exception and dismissing the case as of non-suit, from which judgment the plaintiffs appeal.

The evidence certainly fails to establish that defendant has left^or intends to leave the State permanently, but notwithstanding this,, the suit may stand on the grounds of fraud alleged if the defendant, was legally suable in the parish of Ouachita. The proof fully establishes that defendant had been, for many years, domiciled and doing business in the parish of Ouachita. This suit was brought on May 31, 1892, and it is clearly shown that defendant was then domiciled, in the parish of Orleans, but the fact does not suffice to defeat the jurisdiction of the Ouachita court.

Art. 167, C. P., declares: “ If the defendant change his domicil, he must be cited in the parish where he has resided within the last year or within that where he has declared, in the manner prescribed by law, that he intended to have his domicil.”

It is admitted that defendant has never made or filed any declaration in the manner prescribed by law of his intention to change his domicil from the parish of Ouachita to the parish of Orleans. Unless, therefore, the defendant had actually resided in New Orleans-for a full year prior to the institution of this suit, plaintiffs had the undoubted right to sue him in the parish of his former domicil. The jurisprudence of this court to that effect is emphatic and unequivocal.

In Berry vs. Gaudy, 15 An. 533, the Supreme Oourt said:“Where a party has removed from one parish to another, and has-acted in the latter parish in snch a manner as to manifest sufficiently his intention to change his domicil, but has not made a formal declaration to that effect, if a year has not elapsed since his removal it is optional with a party desiring to sue him to bring the suit in either parish.

“ If a person wishes to protect himself from being sued in the parish from which he has removed, he should make an express declaration of his intention to change his domicil.”

In King vs. Watts, 23 An. 563, the same doctrine was held as correctly expressed in the following language of the syllabus: “If a

party has acquired a domicil in one parish and removes therefrom to another parish, he may be sued and cited in the parish oí bis former domicil within one year after his removal therefrom, unless he has, by public declaration in the manner provided by law, declared the place of his domicil.”

To same effect, see:

pítate ex rel. vs. Steele, 33 An. 910; also, 23 An. 516, 20 An. 246, 12 La. 190, 8 La. 213, 4 N. S. 51.

Such is the unambiguous precept of the law, and no gloss could either make it clearer or impair its binding force.

The case then pivots upon a single and simple question of fact, viz.: had defendant changed his domicil from Monroe to New Orleans more than one year prior to the institution of this suit on May 31, 1892?

We have critically examined the evidence on this point. The curator introduced much evidence, very clearly establishing defendant’s domicil in New Orleans, but the only testimony which fixes a date prior to May, 1891, is that of the two ladies keeping the house in which he boarded in New Orleans, and their evidence on that point is contradicted, not only by several witnesses for plaintiffs, but by two of defendant’s own witnesses. The evidence, as a whole, satisfies us that while defendant no doubt conceived the idea of removing to New Orleans and began to take steps to that end, in or before May, 1891, he did not actually make his permanent removal before October of that year. If he kept a boarding place in New Orleans, he also retained one in Monroe up to October. The evidence leaves no doubt in our minds on this point, but even if it were doubtful, defendant’s conduct would at least subject him to the application of the principle announced in Art. 38, Rev. O. O.: “If he resides alternately in several places and nearly as much in one as in another, and has not declared his intention in the manner hereafter prescribed, any one of said places may be considered as his principal establishment, at the option of the persons whose interests are thereby affected.”

This principle is further strengthened by the presumption which, in cases of ambiguous domicil, attaches in favor of the continuance of the former domicil.

Under the evidence presented in this case we think it quite clear that plaintiffs had the right to conclude that defendant’s domicil in Ouachita parish had certainly continued up to less than one year prior to their suit, and, therefore, that they had. the right to bring their action in that parish.

It is is therefore adjudged and decreed that the judgment appealed from be avoided and reversed, that defendant’s exception be now overruled and that the case be remanded to the lower court for further proceedings according to law, defendant to pay costs of exception and of this appeal.

Judgment reversed.

Justice McE'nery takes no part.

On Application eor Rehearing.

The question of the validity of citation and service is not involved in this appeal, which is taken solely from a judgment on an exception to the jurisdiction of the court. The remarks on the citation in this application are entirely foreign to the issue before us.

Rehearing refused.


text:
    No. 1267.

      W. B. Thompson & Co. vs. Mrs. M. D. Herring, Administratrix.
    1. A party holding- an authentic deed of sale, perfect on its face, executed by the decedent, is not required to stand by and see the property sold at judicial sale as the property of the vendor’s succession under an order of sale provoked by his administratrix which could only be sustained by proof that the sale was a pure simulation. He may rightfully enjoin such a sale.
    2. The allegations of the administratrix that the price of the sale was not paid, and that the thing sold had not been delivered, do not necessarily import the nullity of the sale. C. C. 2456.
    3. If the act of sale evidenced a real transaction, whatever its character, the administratrix could not ignore it or attack it collaterally, but could only claim its judicial revocation by direct action.

      4, As between the parties, the verity of authentic sales can only be assailed by a counter-letter or by answers to interrogatories on facts and articles.
    5. The letters of plaintiff’s produced as the equivalent of a counter-letter do not evidence an acknowledgment that the sale was a simulation, but, on the contrary, assert that it was real and based on valuable consideration.
    APPEAL from the Sixth District Court, Parish'of West Carroll. Ellis, J.

      Wells & Wells for Plaintiffs and Appellants:
    The administratrix represents both the creditors and the heirs. 85 An. 1010.
    A real sale can not be attacked by creditors except by a direct action. 39 An. 488 and authorities cited.
    Parties and their heirs and assigns can only assail the validity of an authentic act by a counter-letter or answers to interrogatories on facts and articles. 42 An. 735 and authorities cited.
    Agreements legally entered into have the effect of law on those who have formed them, and can not be revoked by the parties except by mutual consent. O. 0., Art. 1901. Therefore, a vendor by authentic act can not illegally take possession of the thing sold and force the vendee to allege and prove that it was not a sale.

      C, T. Dunn for Defendants and Appellees:
    The payment of the purchase price in a sale made for cash is the principal thing* Delivery completes the sale. If the purchase pi ice is not paid, and there is no delivery of the property sold, the sale is incomplete. There is no sale. C O. 2487, 2549; 13 An. 340; 18 An. 31; 36 An. 194; 24 An. 370; 19 An. 164.
    Where it appears that the consideration of a contract lias failed a true and sufficient consideration'may be shown. An unliquidated account for $1307 is vile and insufficient to compensate a $2500 cash consideration in the act of sale. 82 An. 432; O. 0.1900; 40 An. 308; 30 An. 966; 34 An. 688.
    A contract clothed in the form of a sale can not be construed as a mortgage unless such is the clear intent of the parties. The debt held to be secured must be identified with the written act. If such debt is not mentioned in the written act it holds no mortgage. 40 An. 310; 30 An. 966.
    The letters and other writings of a party to a suit are admissible against him. The testimony furnished by such writings are-concurrent in dignity and in legal effect with answers of the party to interrogatories on facts and articles. 11 An. 113; 12 An. 739.
    Parol testimony is admissible to prove that the terms of a written act of sale have not been complied with, such as that the purchase price has not been paid and that the property sold has never been- actually delivered to the purchaser. Pacts of this character can only be proved by parol. 15 L. 311; 32 An. 432; 33 An. 1033; 36 An. 870, 549, 509, 118; 40 An. 336; 26 An. 545; 22 An. 381; 27 An. 626; 31 An. 262; 3 An. 330; 13 An. 340; 29 An. 495; 30 An. 966, 1125; 2 An. 480 ; 35 An. 547; 38 An. 736; 9 An. 29; 19 An. 164; 1 Greenleaf, Secs. 284, 304, 306.
    An injunction dissolved plaintiff pliable in damages) may waive suit for damages on the injunction bond. He may submit the* question of damages to be determined in the original injunction suit.

      Illegal testimony received on the trial without objection will be considered by the court.
    Testimony to prove damages introduced on the trial ■without objection, submits the question of damages to be determined in the original injunction suit. 20 An. 739; 21». 360; 24 An. 370,
   The opinion of the court was delivered by

Fenner, J.

On the 3d day of March, 1890, John S. Herring executed an authentic act, by the terms of which he sold to plaintiffs several tracts of land for the price of $2500 cash, receipt of which is acknowledged in the deed. The act contained a stipulation that the vendor should have the right to take back the property within one year, and binding the vendees to reconvey on repayment to the latter of the sum of $2500, with interest, together with all sums which shall be expended by the purchasers for taxes, insurance and incidental expenses connected with said property. This act- was duly recorded. Herring died shortly after the sale. His succession was opened and his widow was qualified as administratrix. She caused the property to be inventoried as property of the succession, and provoked an order óf sale thereof, under which it was advertised to be sold on April 15, 1893.

Thereupon the plaintiffs brought the present suit, in which they set forth the authentic sale to them and their ownership in virtue thereof, charge the acts of the administratrix in causing the property to be inventoried and her proceedings for the sale thereof are wrongful and illegal, and injurious to them, and pray for a writ of injunction prohibiting and restraining her from proceeding further with said sale until the further orders of the court, and for judgment perpetuating said injunction.

The answer of the administratrix denies the ownership of plaintiffs, sets forth that the sale to them was “never legally completed, for the reason that they never paid the price, that the acknowledgment of the receipt of $2500, as expressed in the deed, is not true; that Thompson & Oo. never had actual delivery of the property, but the same has been and now is in the possession of defendant as legal representative of Herring’s succession; that plaintiffs have repeatedly acknowledged since, said deed was executed that the ownership of the property is in the. succession; that plaintiffs have shown no legal cause for injunction, and have wantonly abused that equitable remedy” — and she prays for dissolution of the injunction with damages.

Judgment was rendered dissolving the injunction, with $100 damages, and authorizing the administratrix to proceed with the sale; from which judgment this appeal is taken.

It seems to us very clear that upon the face of the title conferred on them by the authentic act of sale plaintiffs were not bound to stand by and see that title ignored and the" property conveyed thereby sold at a judicial sale as the property of another, and that they were fully authorized to enjoin such proceedings, which could only be sustained on clear proof that the sale was a pure simulation. If the sale were a real transaction, whatever its character, the administratrix would be bound to secure its judicial revocation on compliance.with whatever obligations it might impose, before she could lawfully disregard it and sell the property as that of the succession. Lawler vs. Cosgrove, 39 An. 490. The allegations in the answer that the price had not been paid and that there had been no delivery of the thing sold do not necessarily import the nullity of plaintiff’s title. The Civil Code, Art. 2456, expressly declares: “The sale is considered to be perfect between the parties and the property is of right acquired to the purchaser, with, regard to the seller, as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered nor the price paid.”

The articles of the code — 2487.and 2549 — referred to by defendant’s counsel do not conflict with this principle, but only import that the buyer, who has not paid the price due ■ under the terms of the sale, can not enforce delivery of the thing. The plaintiffs here do not demand delivery of the property, but simply that their title under the authentic act be respected until revoked by proper judicial proceedings.

Has the defendant proved that the sale is a simulation? We think not. We said in a recent case: “It is hornbook law in our jurisprudence that the verity and reality of authentic sales can be assailed by the parties thereto only in two ways, viz.: first, by means of a counter-letter; second, by the answers of the other party to interrogatories on facts and articles,” and we cited the numerous authorities to that effect. Godwin vs. Neustadt, 42 An. 738.

Defendant did not undertake to probe the conscience of plaintiffs, nor does she produce any formal counter-letter; but she invokes the rule that letters and written acknowledgments of a party are in the nature of a counter-letter and are entitled to like effect, and she produces certain letters written by the plaintiffs to her attorneys in this case, which we have carefully considered.

The first acknowledges a letter received from defendant’s attorney and encloses an account against J. S. Herring for moneys advanced before the date of sale and for taxes and insurance paid on the property since the sale amounting to $1307.43, and then proceeds: “This is the amount due us. It is true that at one time we did agree to take $600 for our claim and the taxes to be returned to us. We made this proposition with the understanding that the $600 was to be paid at once, but Mrs. HerriBg did not accept the proposition and we shall now expect the entire amount due us paid before we relinquish our claim on the property.”

The second letter is dated December 21, 1892, and says: “We have received your favor of the 19th inst., and trust that a speedy adjustment of the Herring succession can be had. We are certainly not going to stand in the way, and the only thing that we desire is a recognition of our claims in account. We have no objection to Mrs. Herring selling the property provided our account is paid, and we, some time ago, made a still better proposition to Mrs. Herring, in effect that we would take less for our account than its face value. * * * We trust that you will be able to have Mrs. Herring sell the property and pay us our claim. We have no desire to press Mrs. Herring in the matter, but we accepted title to the property in perfect good faith for money advanced, and we think that our claim should have had more attention than has been accorded it heretofore.”

We can discover, in these letters, no acknowledgment that the sale was, in any sense, a simulation. On the contrary they assert that the sale was made in good faith for money advanced, and while acknowledging impliedly that the whole price had not been advanced as recited in the deed, they substantially claim that the amount due on the account was accepted as a partial payment and must be repaid before they would relinquish their title to the property. They simply evince the' willingness of the plaintiffs to forego their rights under the sale, and to permit the administratrix to take back and sell the property for account of the succession provided they were made whole by payment out of the proceeds of their account and expenses.

The reality of the transaction is further shown by the admission that after the sale the property was assessed to plaintiffs and that they paid the taxes for the years 1890, 1891 and 1892.

The plaintiffs were not bound to establish more particularly, in this case, the precise character and circumstances of the transaction. They stood on their authentic title, which by itself was a sufficient ground for the relief sought, unless defendant could destroy it by proving in the manner provided by law that it was a mere simulation, which she certainly has not established.

The administratrix was permitted to testify over the objection of plaintiffs’ counsel to interviews with one of the plaintiffs, and she herself admits that “ he said he did not consider that the property belonged to the succession.” She adds: I claimed that it did for the reason that W. B. Thompson & Oo. had never paid the purchase price for said property. I told him that I would recognize his claim as a mortgage up to the amount I understood to be due him, which amount I understood to be $650 and the taxes paid on said property.”

The plaintiffs admitted and announce in this court their willingness to permit the sale to proceed provided their claim be ordered paid out of the proceeds. There thus seems to be no substantial dispute between the parties except as to the amount due. Plaintiffs’ account has not been proved in this case; but we think a judgment authorizing the sale to proceed and recognizing the right of plaintiffs to be-paid by preference out of the proceeds of sale, the amount of their claim to be established contradictorily between the parties, would promote a speedy settlement and advance the interests of justice.

It is therefore adjudged and decreed that the judgment appealed from be amended so as to reverse and set aside the allowance of damages against the plaintiffs and so as to recognize the right of plaintiffs to be paid by preference out of the proceeds of sale of the property; the amount due them on their account for moneys advanced and for taxes, insurance and expenses, the amount and verity of said account to be established contradictorily between the parties by judgment of the court and a sufficient amount of said proceeds to be retained to satisfy the said judgment when rendered, and that, in other respects, the judgment appealed from be affirmed; defendant and appellee to pay costs of this appeal.

On Application to Amend Decree.

The motion to amend can not be granted.

The reasoning of the opinion entitled the plaintiffs to an absolute reversal of the judgment appealed from, and the qualified decree rendered was based exclusively on the consent of plaintiffs, and in the supposed interest of the defendant that the sale should be proceeded with. At the time of adopting the decree the court agreed that if defendant should complain and apply for rehearing it should be granted and a decree rendered reversing the judgment and perpetuating the injunction.

As defendant applies simply for an impossible amendment, inconsistent with the consent of plaintiffs, the application must be denied.