author: Todd, J.

text:
    No. 1030.
    The State of Louisiana vs. Salone Brannon.
    "Where tlie sentence of the Judge a quo condemned the accused to additional labor on the public streets of Monroe, in default of payment of costs: Held, that that portion of the sentence is illegal, and must be annulled.
    APPEAL from the Fifth District Court, Parish of Ouachita. Richardson, J.

      W. W. Farmer, for Defendant and Appellant:
    1. In a prosecution for larceny, based upon finding the stolen property in defendants ' possession, the identity of the things stolen and found is essential.

      2. The interference of the District Judge with defendant’s evidence to disprove that identity is capable of injuring her defense; and, if unlawful, is error, justifying a new trial.
    3. The District Judge has no right to interfere in the evidence and cross-examine defendant’s witnesses, because that is the duty of the District Attorney alone, and the Judge, must confine himself to “judging,” without touching upon “advocacy.”
    4. The jury, under the law and Constitution, (Art. 168,) are sole judges of the facts, and the Judge has no right to do any act or speak any words calculated to influence them upon the facts, or upon the credibility of the witnesses.
    5. Costs in criminal cases, as well as civil cases, are not part of the “judgment; ” they are only concomitants of it. C. P. 551; Rev. Stat. 979.
    6. Neither the Act No 38 of 1878, nor any other law, authorizes any punishment for failure to pay the costs of the prosecution.
    7. Non-payment of the costs of a criminal prosecution is not a crime; and if the Act of 1878 does authorize a sentence to hard labor on the streets for their non-payment, it is unconstitutional, null and void, being iu violation of Art. 3, Const. 1868, and Ait. 6, Const 1879, which prohibit involuntary servitude, except as apunishment for crime.
    6. "When the District Judge has once passed a sentence, his control, authority and jurisdiction cease, except to sign the final judgment embodying that sentence, and to grant an appeal; and he is without power to set the first sentence aside and decree another.
    9. Conceding, for argument’s sake, that the District Judge can “amend’’the sentence, at any time before signing it, as assimilated to C* P. 547, still he is expressly limited to altering its “phraseology,” and cannot alter its “substance.”
    10. A change from ordinary imprisonment in jail for 60 days, to hard labor on the streets for 60 days, is nob a change of “ phraseology,” but one of “ substance.”
    11. The first judgment or sentence in this case, if otherwise valid, is inchoate and incomplete, becausenot signed, and cannot be affirmed or maintained on this appeal.

      F. G. Hudson, District Attorney, for tlie State, Appellee.
   Tlie opinion, of tlie Court was delivered by

Todd, J.

Tlie defendant was indicted for larceny, and after trial and conviction, was sentenced to work upon tbe streets of Monroe for sixty days, and to pay costs, and in default of their payment, was condemned to work twenty days longer. From this sentence she has appealed.

1- Tbe accused first complains of the action of tbe Judge who presided at tbe trial, in interrogating a witness, after tbe examination of sncli witness on tbe part of the State and defense, bad closed.

The accused ivas charged with stealing a mirror, and the point in question will be more fully understood by the statement, with reference thereto, contained in a bill of exceptions in tbe record, as follows :

During tbe trial of this case in the court below, and a recess of court for dinner, eounsel for the accused bad procured a mirror or glass similar in appearance to tbe one alleged to have been stolen, and after cutting off tbe string from tlie glass charged to have been stolen, by which some of tbe witnesses bad referred as their means of proving identity, and having made a bole in tbe one procured similar to a hole iu tbe one alleged to have been stolen, in order to test tbe accuracy of witnesses’ testimony, placed both glasses on a table before tbe witness and proceeded to interrogate her. The testimony of the witness, in reference to the glasses, left it in doubt in the mind of the court to which glass she referred, and the court asked the witness to designate which of the two glasses she referred to in a statement she made in her testimony.”

The manner in which this matter has been argued by the defendant’s counsel might lead to the conclusion that the question involved was the right of the District Judge presiding at the trial of a criminal case, to examine and cross-examine the witnesses, with a view to procure the conviction of the accused, or at least to assist the State in the prosecution.

Wo do not so construe the issue presented by the bill of exceptions, or infer therefrom that such power or authority was claimed for the Judge, either by himself or by the officer conducting the prosecution. To ús it appears that the simple question raised was whether, under the law, the District Judge was entitled to be informed fully of the facts developed on the trial of a criminal case, and with a view to solicit such information, whether he has the right toquestion awitness who has testified or who is testifying at such trial. What else can we infer from the statement of the Judge that he did not understand, from the answers of the witness, to which of the two glasses before her at the time she referred; that there was a doubt in his mind, and he desired to ascertain the meaning of the witness as to which of the two mirrors she referred to 9

That the Judge has the right to join in the prosecution of one on trial before him or assist in his defense, is not asserted in this case, and we presume will never be contended for in any case, nor is it the least probable that the assumption of such authority by any Judge, under any circumstances, would ever be countenanced by any court, but that the Judge presiding at the trial of a criminal case, has the right to know what is going on before him, and what are the facts proved by the witnesses, we have no doubt. It is not only his right, but it is his duty to be thus informed. With out such kno wledge, he is n ot really competent to discharge the grave duties devolving upon him as presiding Judge. I-Iow, for instance, can he decide intelligently the many complicated and mixed questions of law and fact that arise in every such trial, or are likely to arise, without such knowledge ? How decide whether the verdict is contrary to the law and the evidence, a question involved in nearly every motion for a new trial, if he is not thoroughly conversant with the evidence that has been adduced at the trial, and understands fully what the several witnesses have testified ? If such are his duties and responsibilities, then it necessarily follows that he has the right to interrogate the witnesses, to the extent atleast of knowing and understanding what they say, and what they mean, and. to shape his questions so asbest to remove all doubt as to their statements and reach the true meaning of the same.

This is all that we are now called on, under our construction of the issue really presented, to decide. We have been directed to no law, and know of none, that would deprive the Judge of such right or authority, and the exercise of this right for the purpose, and under the restrictions stated, we do not conceive trenches upon any provision, constitutional or legal, forbidding his commenting before the jury on the facts proved, or sanctions, in the remotest degree, any word or action on the Judge’s part, looking to his co-operation with either party, or to his assisting either the prosecution or the defense.

2. The next error assigned relates to the right of the Judge to change the sentence against the prisoner, as first pronounced and rendered.

The first sentence passed in this case was imprisonment in the parish jail for sixty days, “ with the privilege of compensating the-same by work on the- public streets at one dollar per day, and pay costs, and in default of paying costs, to be imprisoned for twenty days more.” Suggestion having been made by the District Attorney that this sentence was not in accordance with Act 38 of 1878, the prisoner was recalled and the original sentence modified, to the effect that the accused was condemned, quoting from the record, to work on the public works and streets of Monroe for sixty days, and pay costs, and in default of such payment, to work twenty days longer on the streets.” This amendment or modification was made immediately after the first sentence was passed. The right of the Judge thus to amend or modify a sentence is settled by the highest authority. Tlius, Wharton on this point says:

“Asa general practice, the sentence, when imposed by a court of record, is within the power of the court during the session in which it is entered, and may be amended at any time during such session, and it has been said that even during subsequent sessions down to the period of the execution of the sentence, the court may further amend or stay proceedings or respite,” et seq. Wliar. Crim. PI. and Pr., Sec. 913.

And again : “ Where the court, in passing sentence, has overlooked a requirement of the Statute, it may correct the judgment at the same term, before the sheriff has executed it, by vacating the first sentence and passing a new one.” Miller vs. Finkle, 1 Parker, 374; Drew vs. Com., 1 Wharton, 279; People vs. Thompson, 4 Cal. 238.

There was, therefore, no error in this respect.

3. The next and last assignment made, is to that part of the sentence above quoted, which condemns the accused to twenty additional days labor, in default of paying the costs of the prosecution. It is objected to, on the ground that there is no law authorizing imprisonment for the non-payment of costs.

Costs in criminal cases, under a statutory provision, follow or attend a conviction. Thus, Rev. Statutes, Sec. 979, declares : Every judgment of conviction shall subject the person convicted to the payment of all costs of the prosecution, whether so stated in the sentence or not.” They may, therefore, be likened to the costs that fall upon the unsuccessful suitor in a civil case. C. P. 551.

They cannot, therefore, be viewed as a fine, which is a sum expressly imposed in lieu of, or in addition to a term of imprisonment, or as any part of the punishment for an offense. They are merely a debt, whether in criminal or civil cases, resulting from the operation of the laws condemning the. party cast to pay the expenses of the proceeding.

See. 980 R. S., provides, that every person sentenced to pay a fine shall, in default of payment, be sentenced to be imprisoned, etc.”

.The accused was prosecuted for larceny. The penalty for such offeuse was originally, imprisonment at hard labor, or otherwise, not exceeding two years. R. S. 812.

A fine could not, and cannot still be imposed as part of the punishment for sucli offense.

Sec. 1 of Act No. 38 of 1878, under which the accused was sentenced, provides a different mode of punishment for larceny and other offenses, and roads as follows :

That in all criminal prosecutions, where any person is convicted in any of the courts of this State of any crime or offense punishable under the law with imprisonment at hard labor, but not necessarily so, the Judge before whom such conviction is had, may sentence the person so convicted to work on the public works, roa ds, or streets of the parish or city in which the crime or offense has been committed, and which may .be eventually chargeable with the costs of the prosecution, and for a term not exceeding the term now specified under existing laws ; provided, that when afine, in said cases, is imposed as a part of the penalty, in default of the payment of such fine and the costs, the Judge may enforce the liquidation thereof by sentence of additional labor, at the rate of one dollar per diem.”

It will appear from the above, that it is only when a fine is imposed and there is a default of payment of the fine and the costs, that additional labor can be imposed in lieu either of the fine or the costs. And by a fair and reasonable construction of the Section, the additional labor authorized to be imposed might be intended for the enforcement of the fine and not the costs. However this may be, it is reasonably certain that before this further punishment of additional labor can be inflicted for fine or costs, a fine must have been imposed as the penalty or part of the penalty for the crime.

In this case it was not so imposed. Tliere was no fine, but the sole punishment for the offense was sixty days’ labor on the streets. Added to this, no fine for larceny could, under the law, have been imposed as above stated. It, therefore, follows that under no law applicable to this case could the accused be condemned to additional labor, exclusively to pay the costs of the prosecution.

This part of the sentence is, therefore, illegal, and should be vacated. This, however, does not avoid the entire sentence. That part of it that inflicts the punishment for the crime of which the accused was convicted, must remain intact. The illegality of one part of the sentence does not vitiate the entire sentence. Matter of Sweatman, 1 Cow. 144; Brown vs. State, 8 Eng. 96; State vs. Chapman, 34 An., not yet- reported.

Hence, there is no necessity for remanding the case that the accused may be re-sentenced.

The correction can now be made.

It is, therefore, ordered, adjudged "and decreed, that the judgment and sentence appealed from be amended, by striking therefrom that part which imposes twenty days additional labor by the accused on the public works and streets of Monroe, in default of paying the costs of prosecution, and as thus corrected and amended, the said judgment and sentence is affirmed, the costs of appeal to be paid by the appellee.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 1009.
    The State of Louisiana vs. the North Louisiana & Texas Railroad Company.
    1. In a certain sense, shares of stock in a corporation represent an interest in tke corporate estate, and a conveyance thereof is a conveyance of such interest. But it is not a particular interest in particular property, but simply an interest in the rights and property of the coiporation, whatever they may be, and subject to the corporate obligations.
    2. The transferrer of stock, without representation or specification as to the particular property held by the corporation, warrants only his title to the stock, and not the title of the corporation to the property held by it.
    3. In absence of fraudulent concealment or misrepresentation, failure of title of the corporation to its property, furnishes no ground for action of nullity of transfers of stock, based on error or breach of warranty.
    APPEAL from the Fifth District Court, Parish of Ouachita. Richardson, J.

      J. G. JSgan, Attorney General, Richardson, JlcJSnery <& Young, and JS. H. Farrar, for Plaintiff and Appellant:

      1. The contract between the State of Louisiana and the North Louisiana & Texas Railroad Company, under Act 97 of 1872, was an exchange, the State giving its second mortgage on said road for stock to an equal amount.
    2. "When a party has been evicted of tho thing by a judgment, received in exchange, and has only a certificate of title to tho same, tho thing remaining iu tbe possession of the other exchanger, a fcendor of tho certificate is unnecessary. When the certificate or property received ia exchange is valueless and lost, it is unnecessary to tender the same as a prerequisite to bringing suit. When it is beyond the power of the party to tender the thing received in exchange, because of its loss, and it is valueless and its non-production can do the other party no iuj ury, it is unnecessary to lender the same 11 An. 299 ; 7 An. 213; 2 N. S. 466; 14 An. 401.
    3. Tho Attorney General of the State is authorized, when he deems it to the interest of the State to do so, to appear in any ease, without being specially authorized thereto by the Governor, or the Legislature, or either branch of the same. The duties of his office require this.
    4. The Governor lias authority, uuder Act 72 of 1880, to appoint special couusel to appear and prosecute a case in which the State is interested. This appointment will relate back and ratify the suit so commenced, as though said attorneys had appeared in the first instance in pursuance of said authority.
    5. Certificates from the executive officers of the State are receivable in evidence to show the loss of a record.
    6. To sustain the plea of m adjudioata, the cause of action must be the same and between the same parties.
    7. Actions to recover tho thing given in exchange, because of a judgment of cviofcíon, are prescribed by five years, to be computed from the date of the judgment of eviction.
    3. Actions to rescind or annul agreements on account of error, fraud or violence, are prescribed by ten years, to be calculated in oases of error or fraud from the day on which either was discovered. Art. 3541 R. C. C. applies only to oases not included in Art. 2221. 2 An. 443; 3 An. 328; 13 An. 307.
    2V 0. Benton, on the same side.

      John T. Lndeling, for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

The Act No. 108 of 1808, which is tho charter of the North Louisiana & Texas Railroad Company, is prefaced by a preamble reciting that, Whereas, the Vicksburg, Shreveport & Texas Railroad Company did, on or about. September 1, 1857, mortgage its entire railroad, extending from the Mississippi river to the line of boundary between Louisiana and Texas, with its right of way, lands, franchises, etc., etc.; and whereas, all of said described property, rights, privileges and franchises wore sold at sheriff’s sale, under an order of seizure and sale granted under said mortgage;” and the Act thereupon proceeds to provide, in its first and following section, that Ray, Gordon, Ludeling, Stubbs, Waddell, Horne and Pinckard, “ purchasers at the sheriff’s sale of the property of the Vicksburg, Texas & Shreveport Railroad Company, on the 3d February, I860, be and they are hereby declared to have all the rights and powers which the Vicksburg, Shreveport & Texas Railroad Company had,” and to create said named persons into a body corporate under the name of the North Louisiana ¡fe Texas Railroad Company.” In Sections 11 and 12, the said Act authorized the issuance to the said Company, by the State, of six thousand dollars of State bonds for every mile of track when completed, with eight per cent, 'interest, payable semi-annually; payment of the principal and interest to be secured by a second mortgage in favor of the State, upon the said railroad, fixtures and appurtenances; the Company having the right to execute a first mortgage to raise money for the completion of the road, to the amount of $15,000 per mile, which amount was subsequently increased to $25,000 per mile.

Under said Act, the aggregate sum of the bonds issuable, if the road ■ had been completed, would have been $1,122,000, and of this amount $546,000 had been actually issued prior to the year 1872.

By Act 97 of 1872, it was provided: That in lieu of the second mortgage, required by the 11th Section of the Act of 1868, * * * the said North Louisiana & Texas Railroad Company may give stock of said Company to the State to an amount equal to the aggregate sum of the State bonds issued or to be issued under said Act, No. 108 of 1868, to-wit: 11,220 shares, or $1,122,000 of the 60,000 ^shares, or $6,000,000 of the capital stock of said Company. And in consideration of the issue and delivery of said stock, by said Company to the State, the said Company shall be relieved from all liability on the aforesaid bonds of the State; and, that on delivery of the stock aforesaid, the remainder of the whole number of bonds authorized by Act No. 108 of 1868, viz: 576 bonds of $1,000 each, shall be immediately issued and delivered to the President of said Company, by the Governor of the State.”

The provisions of this Act were duly accepted by the Company. The 11,220 shares of stock were delivered to the State, and a certificate of said stock issued and delivered, and the Governor signed and delivered the remaining $576,000 of bonds.

The evidence shows that these bonds were divided pro rata among the stockholders of the Company who had furnished the shares of stock which had been transferred to the State. There was nothing in the law to prevent this disposition of the bonds.

Prior to the passage of even the Act of 1868, a certain suit, entitled Henry R. Jackson et al. vs. John T. Ludeling et al., had been filed and was pending in the Circuit Court of the United States, at New Orleans, which was a suit by creditors of tire Vicksburg, Shreveport & Texas Railroad Companj’', the object of which was to annul and set aside the sheriff’s sale, which had been made of the railroad right of way, franchises and other property of that Company, to Ray, Ludeling and their associates; and which, as heretofore stated, was referred to and set out in the Act of 1868.

By virtue of a judgment and decree rendered by the Supreme Court of the United States in said suit, the sale aforesaid was declared fraudulent, null and void, and was cancelled and set aside, and the title of the North Louisiana & Texas Railroad Company, derived through said sale, was annulled and divested, and the property, rights and franchises covered thereby, were ordered to be sold to satisfy the mortgage creditors of the Vicksburg, Shreveport &. Texas Railroad Company.

In subsequent proceedings, in the same cause, it was decreed that the North Louisiana & Texas Railroad Company should be paid, out of the proceeds of sale, the amount of $391,959.40, as representing the value of improvements and betterments, attached to the road by said Company during its possession of the same.

The objects of the present action, according to the prayer of the petition, are as follows:

■ 1. To annul, resolve and set aside the contract entered into between the State and defendant, by virtue of Act No. 97 of 1872.

2. To reinstate and render executory the State’s mortgage resulting from Sections 11 and 12 of Act No 108 of 1868, upon all the property, rights, privileges and franchises belonging to the defendant, and particularly upon the improvements and betterments put upon the road by defendant, and upon the funds arising from the sale of the same, and adjudged to be due said defendant by the decree in the case of Jackson et al. vs. Ludeling et al.

3. To recover judgment for the amount of the bonds and interest, issued by the State to said defendant, with mortgage as aforesaid upon the property and funds above set forth.

4. To obtain an injunction, restraining the defendant from, in any manner, disposing of, or incumbering said judgment and fund, to the prejudice of plaintiff.

The fundamental relief sought is the annulment of the contract entered into by virtue of Act 97 of 1872, that being the foundation and condition precedent of all other relief demanded.

Tlie legal grounds upon which the annulment of the contract is claimed, as set forth in the petition, are substantially that the sole cause or consideration of that contract was the ownership by defendant of the property, rights and franchises of the Vicksburg, Shreveport & Texas Railroad, by virtue of the purchase of the same, made by the authors of defendant at the sheriff’s sale; that in transferring the stock to the State, the defendant transferred an undivided interest in said property and became warrantors of the title thereto; that the sole canse.or consideration of said contract liad suffered a complete failure and destruction, and that there had been a complete breach of the warranty by which defendant was bound; and that both the consideration and the breach of warranty happened by a vice that was inherent in the origin of the pretended title of the defendant in and to the property aforesaid.

Accepting the theory of the plaintiff’s case, as expounded by counsel in their written and oral arguments, the contract, under Act 97 of 1872, is claimed to be a contract of exchange, by which the State gave its second mortgage on the property, rights and franchises of the Company, in exchange for the stock of the defendant corporation to an equal amount.

A more accurate statement would he that the State exchanged its second mortgage for the bonds already issued, and $576,000 additional bonds, for which it never had any mortgage for stock in the corporation.

The interpretation placed by plaintiff’s counsel upon their own petition is, that the relief sought is based on two grounds, viz:

1. Error as to the principal cause or consideration of the contract.

2. Breach of warranty of title to the thing given by the defendant in exchange.

It is essential that this theory of the pleading should prevail, because otherwise, the action would fall under the prescription of five years, under C.C. 3542, pleaded by defendant; while, upon this theory, the action escapes this prescription, because the prescription of the action to annul, on the ground of error, only runs from date of discovery of error, and that for breach of warranty from date of eviction. C. C. 2221; Mulford vs. Wimbish, 2 An. 443; 3 An. 328 ; 3 An. 353; 13 An. 307.

The plea of prescription was sustained by the Judge a quo, as we think, erroneously; but that will not prevent us from deciding the ease on other grounds.

The case was fully heard on the merits, and all exceptions and pleas were referred thereto.

By the express terms of the Code of Practice, this Court is required to pronounce on the case the judgment which the lower court should have rendered, if it be in possession of all the facts and testimony to enable it to pronounce definitively.” C. P. 905; Miller vs. Mercier, 3 N. S. 234; Levi vs. Weil, 24 An. 223; 8 N. S. 63; 19 An. 525.

We, therefore, proceed to consider the ease on other grounds.

It is to be observed that no assault is made upon the contract arising under the Act of 1868. On the contrary, plaintiff asserts and seeks to reinstate and enforce that contract. Therefore, the motives, objects and representations under which the contract of 1868 was made, do not enter into this case. The sole attack, here, is upon the contract under Act 97 of 1872. That Act contains no representations and no statement of motives. It is a simple, unqualified proposition, on the part of the State, to accept stock of the Company in exchange and substitution for the second mortgage security by which its bonds already issued were secured, aud for the additional bonds then authorized to be issued. This proposition was accepted by the Company, became thereby a contract, and was completely executed.

It is not pretended that plaintiff’s title to the stock, received by it, has ever been questioned, or that it has ever been disturbed in the possession and enjoyment thereof, or that defendant, in connection with this contract, made any representation as to the value of the stock, or as to its corporate property, or the nature1, value, or title thereof.

The evidence establishes that the defendant corporation did not then create and issue the stock which it1 transferred to plaintiff. The stock had already been issued and had passed into the possession of individual stockholders as their private and individual property. The defendant acquired the stock, which it transferred to the State, from these individual stockholders, and it paid these latter for their stock with the very bonds which it received from the State.

It merely became the medium through ■which these stockholders transferred their stock to the State.

The State got all it bargained for, to-wit: the stock, and it yet holds the same.

The questions are: whether the transferrer of shares of stock in a corporation, by sale or exchange, warrants anything except the title to the stock ," whether he becomes, in any manner, the warrantor of the title of the corporation itself to the corporate property held and possessed by it) and whether error or mistake as to the nature, value and title of the corporate property, can invalidate the sale or exchange of stock in the corporation.

These questions must undoubtedly be answered in the negative.

Shares of stock are themselves property, susceptible of sale or exchange like any other property.

In a certain sense, they represent an interest in the corp orate estate, and a conveyance of them is a conveyance of such an interest. But it is not a conveyance of a particular interest in particular property. The share of stock is simply an interest in the rights and property of the corporation, whatever they may be, and subject to its obligations. It resembles the right of an heir to a succession under administration, as to which the Codé specially provides, that when a man sells his right to a succession, without particularly specifying the objects of which it consists, he only warrants his title as heir.”- C. C. 2050, 2513 ; Grayson vs. Sanford, 12 An. 646.

So the transferrer of stock in a corporation, without specifying the particular property held by the corporation, simply warrants his right as a stockholder, or his title to the stock. The transferree simply acquires his rights as a stockholder, whatever they may be. Though it should subsequently transpire that the corporation was entitled to some valuable right or property, the ownership of which was not known or suspected at the time of the transfer, the transferrer could not claim nullity on the ground of error, at least, in absence of concealment or fraud. Nor. can the transferree annul, on the ground, of error, because it turns out. that some property which the corporation was supposed to own, did not belong to it. Such error does* not touch the nature, the object, or the cause of the contract. The right as stockholder was the sole object and cause of the contract, and that objhct and cause existed and remained perfect and complete, with all the incidents and qualities which, in law, the transferrer warranted.

It is not pretended that there was any concealment or deceit by the corporation in regard to its ownership of this-property. There was no representation on the subject. There is no pretense that the corporation knew or believed that it had not a good title thereto. On the contrary, the title had been the subject of judicial investigation in two cases, and had been therein sustained. Branner vs. Handy, 18 An. 537; Gordon vs. Vicksburg, Id. 550.

Besides, the suit of Jackson vs. Ludeling et al., in which the title was finally annulled, was pending at the date of the contract, and had been since 1866. It is not alleged or proved that the State was not aware of the pendency of that suit at the date of the contract. It took the chances of the result thereof, like all other stockholders.

Different questions might arise if this suit demanded the nullity of the contract entered into under the Act of 1863, as to which it might be forcibly urged that the title to this property, expressly recited in the Act, did form the cause of the contract and was warranted thereby. But, as before stated, the contract of 1863 is not assailed herein, but is, on the contrary, affirmed, and reinstatement and execution thereof demanded.

In the contract of 1872, on the other hand, the thing given in exchange was the stock, title to which alone was -warranted, which title has never been impugned.

That the State made a bad bargain cannot be denied, but she had the right to make that bargain, and she did make it, and she must abide by it.

Contracts of exchange, unlike contracts of sale, are not dissoluble on the ground of lesion, except in specified cases, not covering the present action. C. C. 2664.

These views relieve us from the consideration of various special defenses which, otherwise, would present questions of serious difficulty.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from, in so far as it maintains the plea of prescription, be annulled, avoided and reversed, but that in so far as it rejects and dismisses the suit of plaintiff, at its costs, it be. affirmed, plaintiff and appellant to pay the costs of this appeal.


author: Bermudez, C. J.

text:
    No. 1058.
    James Dennis, Sheriff and Tax Collector vs. Vicksburg Shreveport & Pacific Railroad Company.
    Under a charter declaring that the property of the company shall ho exempt from taxation for ten years after the completion of the road, the corporation can not claim immunity from the beginning of its existence up to the completion of the road Decision in 33 An. 622, affirmed.
    APPEAL from the Fifth District Court, Parish of Ouachita. ¡Richardson, J.

      Richardson, MeBnery <& Young, J. B. Stone, Potts <& Hudson, and T, 0. Benton, for Plaintiff and Appellee.

      P. P. Stubbs, for Defendants and Appellants.

      W. P. & A. B. Pittman, on the same side.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendants appeal from a judgment condemning them to pay three years’ State taxes, aggregating over six thousand dollars.

They resist payment, averring that they are exempt from such taxes, by reason of the purchase made in 1879 of the property, franchises and immunities of the Vicksburg, Shreveport & Texas Railroad Company, chartered by the legislature in 1853, (Act 228).

They claim that, by the second Section of the Act of Incorporation, that Company was relieved from the payment of all and any taxation from the beginning of its existence, and was to continue so during ten years after the completion of the road within State borders.

We do not propose to determine whether the defendants have acquired the exemption claimed, for the reason that, if the first Company did not own it, the defendants did not acquire it. Pretermitting that and the several questions, save one, which were presented and argued by the able counsel on both sides, we will proceed to consider the. sole, main issue, which the case offers, which is:

Whether the exemption granted in 1853 by the State, conceding it arguendo to have enured to the defendants, does or not relieve them from taxes falling due before the completion of the road, which is as yet unfinished, and will so remain for some time.

The Section relied upon reads :

“That the capital stock of said Company shall be exemptfrom taxation, and its roads, fixtures, workshops, warehouses, vehicles of transportation, and other appurtenances, shall be exempt from taxation for ten years after the completion of said road within the limits of this State.”

In the case/ of Baton Rouge G. T. & O. R. R. Co. vs. Kirkland, Sheriff, 33 A. 622, an identical question was presented, which ive solved, deciding that the Company was not entitled to the exemption asked.

The candid and respectful manner in which the. opinion in that case was criticised by the counsel for the defendants, in their printed, oral 'and manuscript argument, has proved a cause of satisfaction to us, as it has furnished us the opportunity of listening to valuable considerations which had not been urged in the previous case, and of reviewing an important ruling which might have been erroneously made.

■ The claim now is: that the exemption accorded in 1853, and which has passed to the defendants, exonerates them from taxe-s as well before as after the completion of the road, but not for more than ten years afterwards.

If this pretension were recognized, the second Section would be made toread that the property of the Company “ shall be exempt from taxation,” from the creation of the corporation and “ for ten years after the completion of said road within the limits of the State.”

It .is a principle so universally recognized, that exemption laws must be construed strictly, that the mere announcement of the proposition establishes it. It applies not only to general laws, but also to special enactments, such as charters of corporations of any class. All property must be taxed, except such as is expressly relieved from the burden either by valid federal or local legislation.

It is likewise rudimentary, that however liberal the civil law may be in the interpretation of language used by the sovereign, (Dornat, Tit. 1, Sec. ii, Rule xvii.) it is an admitted canon of construction, that when the sovereign grants, he does so munificently and unequivocally, and that when a serious doubt arises as to what was intended by the sovereign, that doubt is fatal, and the plain meaning must be adhered to.

In 21 Penn. Statute, 22, it was said by Chief Justice Black:

“ In the construction of a charter, to be in doubt is against the corporation. If the usefulness of the Company would he increased by extending, (its privileges) let the legislature see to it, but remember that nothing but plain English words will do it.”

Referring to that decision, Cooley, C. L. p. 495, § 395, says : This is the sound doctrine., and should be vigilantly observed and enforced.” V. Bradley vs. N. Y. & N. H. R. R. Co., 21 Conn. 306.

• In 22 Wall. 575, the U. S. Supreme Court said: “ The taxing power is vital to the functions of the government. It helps to sustain the social compact, and to give it efficacy. It is intended to promote the general welfare. It readies the interests of every member of the community. It may he restrained by contract in special eases, for public good, when such contracts are not forbidden. But the contract must he shown to exist. There is no presumption in its favor. Every reasonable doubt should he resolved against it. Where it exists, it is to be rigidly scrutinized and never permitted to extend, either in scope or duration, beyond what the terms of the concession clearly require. It is in derogation of public rig-lit, and narrows a trust created for the' good of all.” Affirmed and reiterated in 93 U. S. 597.

In the case of the Fertilizing Co. vs. Hyde Park, 97 U. S. 666, involving a legislative contract, Mr. Justice S wayne said:

“ The rule of construction in this class of cases is, that it shall be most strongly against the corporation. Every reasonable doubt is to he resolved adversely. Nothing is to he taken as conceded hut what is given in unmistakable terms, or by an implication equally clear. The affirmative must be shown. Silence is negative, and doubt is fatal to the claim. The doctrine is vital to the public welfare. It is axiomatic in the jurisprudence of this Court.” 24 How. 301; 22 Wall. 527; 93 Otto, 595.

Exemptions are granted either by general or by special laws. When they are granted as a gratuity, as a bounty, they can - he revoked at pleasure; while when they enter into and form part of a contract in the shape of a charter, they must continue in force as agreed upon.

The rules of construction, in both cases, are the same, as to meaning and scope, but obviously differ as to duration. In the last case, the time for which the exemption was consented, must be strictly construed, and must be neither extended nor restricted.

No rule is better settled than that charters of incorporation are to he construed strictly against the corporations. The just presumption in every such case is, that the State has granted in express terms all that it designed to grant at all. See 82 111. 177; 21 Conn. 206; 1 Black. 358; 19 Penn. 144; 10 Burr, 442; 4 Peters, 514; 10 Pet. 420; 41 Md. 50 ; 9 Ga. 213; 21 Penn. St. 22; Grant on Corp. 38 ; Field on Corp. 53; Cooley on C. L. 395, 396; Potter’s Dwarris on Stat. 256-7-8, pp. 49, 50; Sedgwick Const, of Stat. and C. L., 190-196, 286, 250.

In a recent case decided by us at New Orleans, we had occasion to apply those principles, denying an extension of corporate existence for 25 years, which did not clearly result from the acts of incorporation. New Orleans & Carrollton R.R. Co. vs. New Orleans, 34 An. p. 429.

It is another axiom, that where a law or contract is clear and free from all ambiguity, the letter of it is not to be disregarded, under pretext of pursuing its spirit. R. C. C. 13.

Quoties in verbis nulla est ambiguitas, ibi milla expositio contra verba fienda est.

The rule is not to be disputed, that in a doubtful case, an agreement is interpreted in favor of him who has contracted the obligation. R. C. C. 1957.

In dubiis semper quod minimum sequimur.

When the text relied upon in 33' An. was first presented to our con-sideration, we felt no hesitation to read it so, that the exemption claimed had not yet begun to run, and would not do so unless the road was first completed, and then for ten years only afterwards. Consideration, favored by the light thrown on the subject by the defendants, has not convinced us that we then erred, but has served to strengthen us in our previous convictions.

We find the letter of the text perfectly unambiguous, and such as requires no interpretation at our hands.

We are told that the intention of the legislature was to confer an exemption, from the adoption of the charter until after ten years from the completion of the road.

The intention of the law giver, as well as that of contracting parties and of testators, is to be ascertained, not by what persons concerned in profiting by advantages claimed, say, or affirm it is, but it is to be gathered and deduced from the words or language used for the purpose of garbing the thought, the intention.

In such cases, we are to ascertain, not quod voluit, sed quod dixit; •in other words, we are' to ascertain quod voluit, by interpreting quod dixit.

It is admitted that this intention is not to be found expressed in its fulness in the text invoked, which on its face possibly justifies the meaning already attached to it, but it is insisted that such intention must be searched by inquiry into the manner in which the State and the defendants have treated the provision of the law in question. It is insisted that if this be done, the Court will conclude in favor of the exemption, as it appears clearly, that from 1853 to 1877, the State never dreamed to levy any tax on the property of the corporation, and that in the casé of State vs. Morgan, 28 An. 482, affirmed in 3 Otto, 222, in which a similar dispensation existed, and an exemption was re-: sisted, it never entered the mind, either of the Attorney Genera], or of the Court, to read the exemption clause as a qualified one, to take-effect only after the termination of the road.

The patent intention of the legislature was to exempt the property only after the completion of the work. Its occult or lateral intention not appearing, must be deemed as conducive only to that indulgence or immunity.

If, for the purpose of eking out the motives which induced the legislature to make the grant, it was legitimate to invade, as the defendants have assumed to do, the field of conjectures or speculations, it might be advanced as a proposition more than plausible, that in according the immunity the State proposed to secure a prompt execution of the work, and to place the beneficiaries of her bounties in the impossibility of defeating her object, by never finishing the road, in never reaching, though approximating its terminus.

Besides, how can it be claimed that the State meant to exempt from the inception of corporate existence up to ten 3-ears after consummation of the object in view, when there is not to be found a solitary instance in which such concession or immunity ever was consented by the. State "t A reference to exemptions granted in other cases, show that they were allowed to take place after the road had been entirely finished. It is not to our knowledge that such exemption was ever granted out Of the State, except on the expressed condition that the work would have to be done within a limited and fixed period.

In other respects, it is enough to answer, that the omission of officers to perform that which it is their duty to accomplish, however long the suspension, cannot be considered as justified by law, or by the State, where no law or authority is produced in support of the dereliction. The abstention of those officers from levying a tax, at best, if sanctioned by some unknown or mysterious higher authority, can onty be viewed as inspired by a spirit of benevolence in favor of an organization which had labored under great embarrassments, and sustained considerable injury and loss. The resumption of the privilege of taxation was the mere exercise of a legitimate right.

If the inaction of such officers could produce the effect claimed, the logical consequence would be the lodging into their hands of the veiy power of exemption which the legislature alone can validly wield, and to confer on them effectual authority to amplifj>- restricted immunities consented by the law giver.

In answer to the other objection, it will suffice to remark that it . does uot appear that there was any necessity of raising, and if raised, of determining the point of exemption, as the Court held that the exemption claimed was personal, inalienable, could not he, and, had not been transferred. 28 An. 482 ; 3 Otto, 222.

To conclude with the defendants would be to inject and incorporate into the Section a most important pro-vision, which was not placed in it by the legislature, and which this Court has not the power of interpolating into it, to auy extent.

We think that the expressed intention of the legislature was to provide that the property of the corporation should be exempt during ten years, to begin.after the completion of the road within the borders of the State, and that previous to such completion it should not be exempt from taxation.

Male dicta expositio guce comnnpit textum.

It is unnecessary to determine, in this controversy, whether the exemption passed or not to the defendants. When the road will have been completed, and an attempt is made to collect a tax from them, it will he time enough to decide the question.

We find no error in the judgment appealed from, which is affirmed with costs.


text:
    No. 1042.
    The State of Louisiana vs. David Williams, alias DeWitt Williams.

      A juror is not incompetent under the Statute, who says on his voir dire that he does not know the meaning of peijury, when at the same time he says he knows what false swearing means.
    If, in his charge to the jury, the Judge does not misstate the law, nor express any opinion as to the facts, there is no ground for avoiding the verdict on account of his charge.
    Is or will the verdict be avoided because a document was delivered to the jury on their retirement, which was offered in evidence on the trial.
    Where a party is indicted for peijury, for having falsely sworn in a previous prosecution that he had been shot by the person prosecuted, his declaration to the same effect, made shortly after the shooting took place, in explanation of a slight inj ury to his head, is not admissible in his favor on the trial for perjury. It was not apart of them gesta of either prosecution.
    APPEAL from the Fifth District Court, Parish of Ouachita, Fiichardson, J.

      F. G. Hudson, District Attorney, for the State, Appellee.

      Fobt. Fay and H. 0. Morgan, for Defendant and Appellant:

      A juror should be a competent and intelligent person, understanding the English language. Acts 1880, So. 54.

      It is never the duty of the Court, it is not proper, to announce to the jury abstract propositions of law not involved in the particular pleadings and evidence in controversy, however correct those propositions may be. Bishop on Criminal Procedure, vol. I, § 978.
    Hypothetical propositions, not applicable to the case, tend to mislead the jury. 2 An. 756; 6 An. 286.
    Ho paper, being part of the evidence in the case, should he in the hands of the jury while they are in their room deliberating upon a verdict, especially as juries are now constituted. 30 An. 540 ; Wharton’s Criminal Law, 4th Ed., § 3136 et seq.

    If such papers or evidence are shown to have had any influence on the jury in arriving at a verdict, a new trial should he granted. 6 An. 560; 34 An. 120.
   The opinion of the Court was delivered by

Todd, J.

The defendant was tried under an information for perjury, convicted and seuteuced to five years’ imprisonment at hard labor, and has appealed.

1. The first ground of complaint urged against the proceedings of the lower court is the ruling of the Judge, in accepting a juror as qualified who was challenged for “incompetency under the Statute,” by the counsel for the accused. We learn from the hill of exceptions that the juror in question stated, when examined on his voir (lire, that he “ did not know what the meaning of the word ‘ peijury ’ was; ” hut it further appears that, when questioned by the District Attorney, he stated that he knew what “false swearing,” and “swearing to a lie,” meant. We cannot say that the Judge was in error, in holding the juror not incompetent, UDder the provisions of the Statute referred to by the counsel, (Act 54, 1880.) The counsel argue that he should have been excluded, from ignorance of the English language, though it does not appear from the bill that such ground of exclusion was urged in the lower court, and had it been, it would not have been applicable. It may show ignorance, not to know the meaning of perjury, hut not ignorance of the English language, in the sense of the Statute. The juror’s knowledge of what false swearing was, satisfied the Judge that he possessed sufficient intelligence, touching the issue to he tried, though he might not he able to define the crime of perjury.

2. A part of the Judge’s charge to the jury is complained of and was excepted to.

. The Judge is required to charge the jury upou the law of the case. If he misstates the law, to the prejudice of the accused, the accused can be relieved. So the Judge is inhibited, in his charge, from commenting on the facts of the case. He is not charged in this instance with a violation of duty in either of these respects, that is, either by misstating the law or commenting on the facts. The charge in question not being, therefore, amenable to either of these objections, there is nothing for this Court to pass on with reference to the same. We cannot he called upon to pass judgment respecting the propriety or fitness of that portion of the charge designated, since it contravenes no principle or provision" of law, and is not so alleged. Boyce vs. People, 55 N. Y. 644.

3. After the jury retired to make up their verdict, it appears that the information on which the accused was tried was sent for by one of the jurors. The deputy sheriff delivered to the jury the information, and with it the indictment in the case, in which it was charged the perjury was committed, and which indictment had been offered in evidence on the trial, the whole of it by the State, and the endorsements thereon by the defendant..

The jury having this document, thus regularly a part of the evidence, in their possession, under the attending facts was not such an irregularity as to avoid the verdict.

On this subject Lord Coke states that if the jury carry away any writing which was given in evidence in open court, this shall not avoid the verdict, albeit they should not have carried it with them.” See also Wharton Crim. PL and Pr., 8th Ed., Sec. 828, Note 6; Wharton Crim. Ev., 8th Ed., Sec. 312; Graham & Waterman New Trials, Vol 1, p. 45, Secs. 45, 46, 48, 78; 13 Ind. 434; Binney Pa. 239; State vs. Bradley, 6 An. 555.

4. The next and last, error assigned relates to the ruling of the Judge on a question of evidence.

The perjury, for which the accused was convicted, was charged to have been committed on the trial of one Alfred Murray, for shooting the defendant in this case, and was alleged to consist of this defendant having falsely sworn on such trial that the said Murray had shot at him. On the trial of the defendant in this case for perjury, thus charged to liave been committed in the other case, a witness on the stand, who had stated that shortly after the alleged shooting by Murray, he had observed that the defendant’s hair was burned or singed, was asked what explanation did he, the defendant, give as to the cause of such injury. This was objected to on the ground that it was the declaration of the accused, and in his own favor, and therefore inadmissible, and the objection was sustained; and the question of the propriety of the Judge’s ruling on this point, is presented to us by a bill of exception The testimony was properly excluded. The declaration of the accused sought to be admitted was not a part of the res gestee, either of this prosecution or the former one, which is the ground urged in favor of its admissibility. It was but the narrative of a past event, and res gestee are events speaking for themselves through the instructive words and acts of participants, not the words and acts of participants when narrating the events.”

Tlie statement made under oath by the accused, on Murray’s trial for shooting him, and which is charged to be false, no one would pretend could afford any evidence in his behalf, or be offered for that purpose on the trial of thex>resent prosecution for perjury against him. The statement offered on this trial, and excluded, was to the same effect, it is to bo presumed, as that sworn to by the accused on the previous trial, and both were made after the alleged shooting took place. The first one was not given under oath, and considering the time it was made, and what transpired subsequently thereto, the prosecution of Murray for 'the alleged shooting, and the testimony of the accused to the fact of the shooting, it might naturally be inferred that this first statement was concocted in advance by the accused, to support a projected prosecution against Murray for shooting him. Where declarations of an accused can be construed to be of this character, they can never be admitted in his favor. Wharton Ev. § 268, 8th Ed.

We have thus reviewed all the grounds of error assigned, and find nothing therein to afford the accused any relief.

The judgment and sentence appealed from are, therefore, affirmed with costs.


text:
    No. 1057.
    John & Charles Chaffe vs. John T. Ludeling.
    1. The plea of discussion, urged by the third possessor in an hypothecary action to enforce a judicial mortgage, is a dilatory exception, and cannot be pleaded; after default, nor in an answer after plea to the merits, and when so pleaded, the same must be disregarded.
    2. Notwithstanding the apparent contradiction in terms between Arts. 333 and 336 of the Revised Code of Practice, the former must prevail, because it evidently embodies the true legislative intent, being the industrious incorporation into the Code of the provision of the Act of 1839; and the omission to qualify the terms of Art. 336, in accordance therewith, • was a manifest inadvertence.
    3. The fact that the price, paid by the third possessor for the property, was applied to the payment of taxes therein, does nob entitle him to subrogation to the lien and privilege of the State and Parish, as against prior mortgage creditors. The pavmenfc of the taxes extinguished them and the liens and privileges by which they were secured; and they no longer exist as a claim ranking that of plaintiffs.
    A PPEAL from the Fifth District Court, Parish of Ouachita. ardson, J. liidh-

      JBoatner <& Liddell, F. F. Stubbs and T. Stillman, for Plaintiffs and Appellees:
    1. Those persons who derive title to real estate directly from a certain deed are privies thereto, and bound by the recitals therein. Greenleaf, § 23.
    2. One privy to an authentic act can not contradict, by parol evidence, the consideration mentioned in the deed without allegatious of fraud, error or violence. 11 M. 630; 1 La. 240; 4 La. 1; 4 R. 299 j C. C. 2276.

      3. Parol evidence is inadmissible to prove that the Sheriff announced other terms, at the sale, than those mentioned in his proces verbal and advertisement. 13 An. 382.
    4. Neither the Sheriff or his deputy, making the sale, can be allowed to testify, contradicting , their official acts. 13 An. 382.
    5. The plea of discussion by the third possessor, in a hypothecary action, comes too late after default, and issue joined. Such an exception is dilatory in its nature, and should be plead in Ivmine litis. 3 It. 57; 11 An. 643; 31 An. 585.
    6. The plea of discussion is waived by going to trial on the merits, without demandinga previous decision on the plea. 13 La. 373; 11 R. 402; 3 An. 222; 4 An. 350; 12 R. 194.
    7. The adjudication completes the sale, and the title is merely the evidence. C. C. 2605; C. P. 695.
    8. One paying taxes is not thereby subrogated to the lien and privilege of the State, as against the mortgagee. 16 An. 132.
    9. Taxes when paid are extinguished, and with them the lien andprivilege of the Slate; they are not debts within the strict sense of the law. 26 An. 697; 28 An 836.
    10. When the purchaser goes into possession, a want of seizure is thereby cured. 33 An. 1043; 4 Otto, 6.
    11. A succession sale only frees the property of mortgages imposed on it by the deceased. 29 An. 385; 9 La. 13; 11 An. 385; 3 R. 5; 8 R. 99.
    12. A monition only cures informalities in sales. R. S. 2370.

      John T. Ludeling, in propria persona, and John U. JDmlcgrave, for Defendant and Appellant:
    Discussion not necessarily a dilatory exception. C. P. 715; 7 An. 145; 13 La. 422.
    Dilatory exceptions, not relating to form nor declinatory, may be filedin the answer, since the re-enactment of the Code of Practice of 1870. Art. C. P- 336; 7 La. 197; 7 An. 145 ;■ 13 La. 422; 1 R 108; 32 An. 1143.
    This possessor, in an hypothecary action, has the right to point out other property which is in the possession of the debtor, or which has been sold by him, since the property of the third possessor. O. P. 715. This is not a dilatory exception, when the property pointed out is more than enough to satisfy plaintiffs’ claim. 13 La. 422. Under the general issue any fact may be shown to disprove the allegations of the petition, or to defeat the demand. 31 An. 81, 679; Henn. Digt. Pleading, V. B. Nos. 3 and 13.
    The rule, that the validity of a sale cannot be attacked collaterally, does not apply in a suit, when either plaintiff or defendant sets up the title as a basis of his right. 33 An. 438; 15 La. 59; 2 An. 161; 4%La. 243 ; 3 An. 233; 11 Hart. 632 ; 19An.52; 20 An. 211; 15An.l77; 30 An. 1157; 6R 192.. Sheriff’s return not conclusive. 1 An. 34, 297; 2 An. 846; 6 Rob. 107. Clerks of courts cannot isssue executions or judgments as on a twelve months’ bond. 30 An. 1271, Strother vs. Richardson.
    A sale made under a consent decree, on terms different from those prescribed by law for forced sales, are governed, by the rules relating to ordinary sales, and do not extinguish mortgages or privileges. 3 Án. 195 ; 5 An. 497; 15 An. 326.
    The third possessor, who has employed the price of his purchase to pay the privileges of the State and Parish for taxes on all the property of the debtor, has a right to show that a judicial sale, alleged in the petition to have been made to the plaintiffs, is an absolute nullity, because of an absolute lack of authority in the officer to make the sale, as well as on account of fraud or other illegalities. 30 An. 1157; 33 An. 438.
    Writs of fieri facias must be returned within seventy days. O. P. 642; 30 An. 87. If certified copies'thereof are not taken by the officer before the writ expires, no sale can be made under it. 30 An. 88; 2 La. 277; 11 Rob. 49, 218.
    To make a valid seizure, possession of the property must be taken by the officer. C. P. 650, 657 ; 6 Rob. 102, 345; 2 An. 338, 492, 785, 910 ; 4 An. 371; 6 An. 584.
    The property, at cash sale, must he appraised, and must bring two-thirds of its appraisement. G. P. 675, 680 ; 3 An. 390; 9 Rob. 531. This appraisement cannot be waived by one 4in ^ailing circumstances. 1 An. 299, 340.

      .The purchaser, who employs the price of his purchase to pay the back taxes of the delinquent, is subrogated to all the 13.gh.ts of the State and Parish. C. C. Art. 2161; Toul. Yol. YI, 7, p. 119, No. 19, p. 126, No. 103, p. 139, No. 118, p. 146, No. 119, p. 180, No. 138. p. 184, No. 142 ; Marcada Yol. 4, p. 516, No. 672, p. 542, No. 711. Baldwin vs. Thompson et al., 6 La. 475; Millaudon vs. Allard, 2 La. 550; 11 La 51; 2 An. 480; 3 An. 313, 529; 9 An. 247; 12 An. 733.
    If the State hada title to the lands, by virtue of the forfeiture declared bylaw, so has the purchaser subrogated. 31 An. 462, Mouius vs. Bryant; Blackwell Tax Titles, p. 544; 2 N. S. p. 160; Torregano vs. Segura’s Syndic, 33 An. 487; Shannon vs. Lane.
    If the State had no title, but only a pledge and privilege to secure the payment of the back taxes due the State and Parish, with the penalties, interest and charges, then defendant and his vendor have that right. Acts of 1869, Section 80.
    "When the delinquent lists were filed ns required by law, the title of the delinquent owner became vested in the State, amt the creditor, of the owner could not seize and sell the property, unless they first paid the taxes, penalties, interest and charges, due the State and Parish. And after the time fixed for redemption, they could not do so at all, without the consent ol‘ the State. Revised Statute, Section 3147; Acts of 1871, p. 115, Sections 37, 38.
    ^Defendant and his vendor occupy precisely the place of the State, by subrogation. Acts of 1871, page 122, Section 68 ; 2 N. S. 161; Toul. Yol. VII, pp. 126,146,184; Marcada Yol. 4, p. 543.
    In an hypothecary action, when the third possessor has shown that he had employed the pi ice of his purchase to pay the back taxes due by his vendor to the State and Parish, with the consent of the seizing creditors, who released from seizure the tract purchased, for that purpose, and that he had redeemed the lands of his vendor, and paid the Auditor’s fee for certificate of redemption, it will be presumed that theTax Collector, the Recorder and the Auditor, sworn officers of the State, performed their duty, and that the delinquent lists were duly recorded. Hcnn. Digfc., Evidence III, (d) No. 17.
    "When defendant or his vendor paj s the back taxes due to the State and Parish, and redeems the lands of the debtor, with the price of his purchase of part of the debtor’s lands, under agreement with the seizing creditors, and thus enables the creditors to sell the other tract of lands belonging to the debtor, free from the privilege of the State and Parish for the said taxes — all the creditors, who have derived an advantage from the purchase by the defendant or his vendor and the redemption of the lands of the debtor, are estopped from attacking his property — which ho acquired through the State free from mortgages. 31 An. 462; 5 R. 523, 196; 5 An. 108, 368 ; 6 An. 274, 349; 9 An. 528; 12 An. 473 ; 4 An. 293 ; 8 R. 165; 31 An. 680, 81. *
    The plaintiffs, who allege that tlicir debtor’s property has been sold; that the proceeds of the sales have been credited on their judgment, and that there is abalance due on their judgment, must produce evidence to fix definitely the amount of tbe balance duo, if there be any. 7 An. 555.
   Tlie opinion- of the Court was delivered by

Fenner, J.

This is an hypothecary action. The substantial averments of plaintiffs’ petition are : that they are judgment creditors of the late Mrs. Eliza W. Warfield, by reason of a- judgment for $5,000, ■ with 8 per cent, interest from May 3d, 1860, rendered in their favor on March 20th, 1874, and inscribed in the Mortgage Office of Ouachita Parish on the 21st of March, 1874; that said judgment is subject to certain credits, viz: a credit of $95.10, arising from a judicial sale of -certain property of Mrs. Warfield, known as the Bon Air Plantation, under executions issued upon certain judgments against her, of earlier date of rendition and record and, therefore, of superior rank to that of petitioners, at which sale petitioners became the purchasers at the price of $3375.48, of which $3280.38 was appropriated, in satisfaction of said superior claims, and the balance, aforesaid, of $95.10 was credited on petitioners’ judgment; and a further credit of $1934.50, being the price of certain other property sold on September 7th, 1879, at judicial sale, in the bankruptcy of Mrs. Warfield, and bid in at that price by petitioners, which price was retained by them as a credit on their said judgment; that their judgment is subject to no other credits; that at the date of record of their said judgment, Mrs. War-field owned certain immovable property, known as Oak Grove Plantation,” in Ouachita Parish, which the defendant, Ludeling, now possesses and claims to own, and which is subject to their judicial mortgage, and that they know of no other property of defendant in the judgment on which their rights can be enforced ; that execution against judgment debtor has been issued and returned nulla bona; that the notices required by law have been given, and all legal delays have elapsed, and- judgment is asked recognizing their mortgage and decreeing the property to be sold.

No answer having been filed within the legal delay, default was taken against the defendant. He then appeared and set aside the default by filing an answer, in which, after first pleading the general denial, he files a plea or exception of discussion, averring the existence of other property belonging to Mrs. Warfield and duly described, which he claims must be discussed, and avers his readiness to furnish the funds necessary to pay the costs of its discussion. Passing by, for the moment, other defenses, he averred that he purchased from the succession of B. II. Dinkgrave, and called the said succession in warranty, through its administrator, W. H. Dinkgrave.

The warrantor appeared and filed an answer, in which he also set up the plea of discussion.

We will first dispose of the plea of discussion.

That the plea of discussion is a dilatory exception, required to be pleaded in limine and in the manner prescribed by the Code of Practice for such exceptions, has been distinctly ruled by this Court and is a settled rule of practice. Dwight vs. Linton, 3 Rob. 57; State vs. Bradley, 11 An. 643.

The Code of Practice itself defines dilatory exceptions to be, such as do not tend to defeat the action, but only to retard progress ;” Art. 332; and Pothier says: The exception of discussion is of the ■class of dilatory exceptions, since it only tends to put off the action of the creditor until after the time of the discussion, and not to exclude it entirely.” 1 Pothier Ob., Nos. 410, 411.

Prior to 1839, under Articles 333 and 336 of the former Code of Practice, dilatory exceptions might be pleaded in the answer and even after default, as was decided in Magee vs. Dunbar, 10 La., decided in 1837. Thereafter, the legislature passed Act 53 of 1839, which provided, in its 23d Section, “ hereafter no. dilatory exceptions shall be allowed in any case after a judgment by default has been taken, and, in every case, they must be pleaded in limine litis; nor shall such exceptions hereafter be allowed in any answer in any cause.” Since the adoption of this law, no case exists in which such exception has been permitted after default, or in an answer, unless, at least, the exception was pleaded prior to any plea to the merits.

In the Revised Code the above provision of the Act of 1839 is incorporated literally, as part of Art. 333, but by a piece of clumsy carelessness, Art. 336 is left as it formerly stood; so that, in one Article, the Code declares that dilatory exceptions shall not “ hereafter be allowed in any answer in any cause;” while, in the other, it says: “the defendant must plead in his answer all dilatoiy exceptions on which he intends to rely.” This apparent contradiction must be reconciled in such manner as to give effect to the legislative intention, and the history we have given'of the legislation, and the careful incorporation of the provision of the Act of 1839 in the new Code, leave no doubt that it was intended to govern and have effect, and that the omission to qualify the terms of Art. 336 was a transparent oversight. In any event, the objection that the plea was filed after judgment by default, would be fatal to defendant’s pretension, because that clause of Art. 333 is not inconsistent even with Art. 336.

This, as we view it, eliminates from the case all questions as to the right of defendant to require plaintiffs to look to any other property for satisfaction of his debt, before subjecting that of defendant to Ms mortgage. Nor is the case affected by the fact that the title of some of the property formerly belonging to Mrs. Warfield, passed directly to plaintiffs themselves. The title to said property either validly passed to plaintiffs, or it did not. If it did, being a title from judicial sale freeing it from mortgages, the property is clearly not liable for Mrs. Warfield’s debts. If it did not, then the property still belongs to Mrs. Warfield, and, like any other property of hers, could only be subjected under the plea of discussion. The attack, therefore, made upon the title of plaintiffs to “ Bon Air” and other property, has no relevancy to the issues remaining in the case, and must be ilisregarded.

The only serious question left in the case is the claim of defendant and his warrantor, that at the time when Diukgrave bought the Oak Drove plantation from Mrs. Warfield, she owed a large amount of State and Parish taxes on this and other property, for the whole of which the State and Parish liad a lien and privilege upon said plantation, priming the mortgage of plaintiffs and all other mortgages ; that the said Dinkgrave paid said taxes, exceeding in amount the price stipulated in the deed from Mrs. Warfield to himself, as the real consideration of said purchase, and, by reason of said payment, became subrogated to the rights of lien and privilege of the State and Parish, entitled to preference over the claim of plaintiffs.

Referring to the act of sale from Mrs. Warfield to Dinkgrave, we find tlie consideration expressly recited to be “ the sum of $3,782.36 cash to her in hand paid, receipt whereof she hereby acknowledges.”

Defendant having no rights except such as are derived from that deed, is a privy thereto and bound by its recitals equally with Ms author. Greenleaf on Evidence, Sec. 23. The rule is inflexible, as against parties to such acts and their privies, that parol evidence shall not be admitted against or beyond what ife contained in the acts, nor on what may have been said before, or at the time of making them, or since.” C. C. 2276.

The parol evidence offered to prove that the price recited in the act was not paid, as therein stated, and that the real consideration was not so much money paid to her, but was the payment of the taxes referred to by Dinkgrave, was, therefore, inadmissible.

This price was the money of the vendor, Mrs. Warfield, and, if it was employed in the payment of taxes, those taxes wore paid and extinguished with her money, and gave rise to no rights in favor of her vendee or defendant. This was precisely and pointedly decided in Sorapuru vs. Lacroix, 1 La. 373.

If Dinkgrave had paid the taxes before he acquired the property, under no circumstances could he have claim to subrogation.

Póur opérer la subrogation de l’acquéreur dans' les droits des créanciers sans stipulation, il faut qu’il les ait payés depuis son acquisition. Elle n’existerait pas s’il les avait payés auparavant sans stipuler la subrogation.” 7 Tonllier, No.. 143.

If he paid afterwards, in this case, he must have paid as her agent, and with her money.

•But it seems to us plaintiffs have little concern .with these questions. They are not attacking the title of defendant; they are neither parties nor privies to the transactions between Mrs. Warfield and his author, Dinkgrave. They are enforcing their purely legal rights as mortgage creditors, and are entitled to be paid out of the property by preference over all except mortgages or privileges which rank their own. If mortgages or privileges, which once ranked theirs, have been extinguished, by whomsoever or by whatever means, they no longer stand in the way. of plaintiffs’ rights. Now, the fact is, that the taxes, of which defendant now claims the benefit, have been paid, and the liens and privileges securing them have been extinguished. The evidence shows that this was the very object of the payment, and the consideration upon which Oak Grove Plantation was released from the seizure which operated equally upon it and Bon Air. If the liens and privileges were not extinguished, how was it that Bon Air and other property was sold and passed free from such privileges ? But if they were extinguished as to other property, how did they survive as to Oak Grove 9 The fact is, they were blotted out absolutely, and survive in favor of no one and to no extent.

Dinkgrave bought this jn’operty freed from taxes, and subject to the judicial mortgage of plaintiffs, of which the public records gave him due notice. The law informed him that the property would be subject to payment of plaintiffs’ debt, unless paid by Mrs. Warfield, personally, or out of proceeds of other property remaining in her ownership after the sale. So well aware of this was he, that, not content with her warranty, he required and received the additional warranty of a third person, Mrs. Strother. The contingency guarded against now happens, and he must look for his protection to his warrantors.

We, therefore, think that the Judge ad hoe erred in allowing any portion of the taxes.

The amendment asked as to the description of the land, cannot be allowed, since the notices aud delays can only be held to apply to the land described in the petition.

The allegations of defendant’s answers lay no foundation for proof or allowance of improvements, and the claim therefor was properly non-suited, with reserve of his rights to recover in proper action.

The exception of defendant, based on effect of the monition taken out as to the sale in the succession of Dinkgrave, is frivolous, and is not, indeed, urged in the argument.

The'prayer of the curator ad hoc of Mrs. Strother, to amend the judgment by allowing him an additional fee for services in this Court, is evidently invoking at our hands the exercise of original jurisdiction. I-Ie must apply to the lower court.

It is, therefore, ordered, and decreed, that the judgment appealed from bo amended, by striking therefrom that portion which allows the warrantor, succession of Dinkgrave, the amount of $936.20, as taxes paid by him, and directs this amount to be paid by preference out of the proceeds of sale; and that, in all other respects, the said judgment be affirmed, appellant to pay costs of this appeal.


text:
    No. 1065.
    Adolphe Meyer vs. N. H. Pargoud.
    "Where a partition in kind cannot conveniently he made, the property should he sold to effect the partition. Property cannot ho conveniently divided, -where such division would necessitate the cantling of tenements to an injurious extent.
    APPEAL from the Fifth District Court, Parish of Ouachita. 'Richardson, J.

      M. liiohardson, for Plaintiff and Appellant.

      T. 0. Benton, for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

This is an action of partition. The plaintiff and defendant are the joint owners of a plantation known as the “Pargoud Upper Place.” Both parties are desirous of a partition, and they only differ ill regard to the mode.

The plaintiff appeals from a judgment directing a partition in kind.

Art. 1339 O. C., provides:

“ When the property is indivisible by its nature, or when it cannot he conveniently divided, the Judge shall order, * * * on proof of either of these facts, that it shall be sold at public auction, etc.”

Art. 1340: “ It is said that a tiling cannot be conveniently divided, when a diminution of its value or loss, ox inconvenience of one of the owners, would be tlie consequence of dividing it.”

These Articles are plain aud unambiguous. In this case a large plantation is sought to be divided. A division in kind should give to each proprietor a smaller plantation, if not complete, with at least a share of the open land, woodland, buildings, etc., if not exactly equal, approximating equality. In the language of former decisions on this subject, “ the property must he susceptible of division into two parts of equal value, without the cantling of tenements to an injurious extent.” 15 An. 697.

This rule may he too exact, and may be subject to variation, according to circumstances. The general rule declared is, however, correct.

In the. instant case, the plantation consists of 984.85 acres, of which 500 are in cultivation. It is well improved, having all the required buildings and their ai>purten anees, yvhieh give great value to the place. These buildings, it is, however, shown, occupy a space of less than fifty acres, aud according to the evidence in the record, no division of the plantation could be made that would divide these buildings between the proprietors/ with an adequate share to each, of the open land and woodland. The testimony, to our minds, leaves no doubt on this point. It is the testimony of men of the largest experience, and thoroughly familiar with the place, and upon whose judgment on the subject we have great reliance.

A partition in kind, if not. wholly impracticable on the principles announced, would be, to say the least, extremely inconvenient and injurious. We, therefore, think the Judge of the first instance was in error in ordering this mode of partition.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed ; and proceeding to render such judgment as the lower court should have rendered, it is ordered, adjudged and decreed, that there be a partition of the lands and plantation described in the partition between plaintiff and defendant; and to effect said partition, it is further ordered, adjudged and decreed, that the said property be sold at public auction, according to law, after due appraisement of the same, the costs of said proceedings and of the sale, and likewise the costs of the lower court, to be paid ecpially by the parties to the suit, and of this appeal, by the defendant and appellee.


author: Pociié, J. Fenner, J.

text:
    No. 1052.
    James Hamilton vs. Vicksburg, Shreveport & Pacific Railroad Company.
    The State legislature has unlimited power to erect bridges and railways, and make any other public works across navigable waters, subject only to the paramount authority of tbe national government.
    The power granted by the legislature to a railway company to build a road between two points, carries authority to cross navigable waters and to build necessary draw bridges, and this authority implies the right and imposes the duty to maintain and repair or rebuild such bridges. A railway company having authority to build or rebuild a bridge across a navigable stream, is not responsible in damages for temporary obstructions of*the stream by scaffolding, or by the construction of a temporary stationary bridge, and for unavoidable delay in the completion of tbe bridge.
    APPEAL from the Fifth District Court, Parish of Ouachita. Bicliardson, J.

      John T. Budding, for Plaintiff and Appellant,

      F. F. Stubbs and Boatner & Liddell, for Defendant and Appellant:
    1. The charter of tbe Vicksburg, Shreveport and Texas Railroad, authorizing theconstruction and maintenance of a railroad from Vicksburg to Texas, through Monroe and Shreveport, gave the permission to bridge tbe streams on tbe route, and in case of navigable streams, the right to use tbe moans necessary to build and maintain drawbridges, and if necessary to obstruct the streams temporarily, it was legal. Act 228,1853 ; Redheld, 322; Fall River Iron Works vs. Old Colony Railway, 5 Allen, 221; Work’s Injunction, 4 McL. 425; Columbus vs. Pioneer Bridge Company, G McL. 70.

      2. State legislatures have unlimited power to erect bridges and railways and make any other works across navigable rivers, subject only to the paramount authority of the national government. Redfield, 323; 15 Waid, 113; 4 Hairing, 389; 5 Gilmar, 351; 1 McLean C. C. 337; 2 Peters, 245; 1 Stockton, 526; 21 Barb. 617.
    3. In respect to the purely internal streams of a State, the public right of navigation is exchi* sively under the control and regulation of the legislature, and the Statute authorizing the building and maintaining the railroad was clearly within the scope of its authority, and the structure, though it bo an impediment to navigation, is lawful. 18 Howard, 432; 5 Wend. 448; 15 Wend. 113; 17 T. R. 195; 20 X. R. 90,101; 5 Cow. 165; 6 Law Reg. 6; 3 Wall. 725.
    4. That being in the exercise of a lawful right in the rebuilding of its bridge, any damage resulting theiefrom is damnum absque injuria. Week’s Sedgwick, 111; Broom Maxims 1, 13 d. Ill; 11 An. 711; 13 An. 426; 15 An. 559; 27 An. 442; 30 An. 30; 13 Moore 209; 17 John 100; 2 Wheat. 358; 36 Mo. 202; 57 M. 433.
    5. That having o\excised prudence and more than ordinary precaution to prevent delay in the work of rebuilding, and using all means in its power to expedite the work, not being guilty of laches or negligence, the damage, if any, resulting from an unforeseen, unusual and providential cause, defendant is not responsible therefor. C. C. 6613, 3556,151933,2533, 2697, 2899, 2911, 2946; 2 Hue 1052; Oblg; Ransom vs. Labranche, 16 An. 121; Wharton on -134; 70 Penn 86; 7 Vt. 62; 3 East. 599; 2 Keys, 169 ; 2 Jones, 205; 6 Mon. 337.
    6. That if any damage resulted to plaintiff when he carried his boat, in the faceof information that it could not get through and there was nothing in the river, or to carry there, that would pay, thus not only contributing but causing it liimself, is not entitled to Tecover. Laclier vs. Jackson R. R., 26 An. 520; 13 111. 585; 19 111 510; 5 Barb. 337; 15 Ark. 118; 40 H. Y. 34.
   The opinion of the Court was delivered by

Pociié, J.

Plaintiff’s object is to recover damages exceeding $12,000, alleged to have been caused him by the defendant corporation, in consequence of an unlawful obstruction on the Boeuf river, a navigable stream, on which plaintiff was running a steamboat.

The answer is a general denial, coupled with the special averment that defendant, incorporated under the laws of this State, had .the right of building, repairing and rebuilding necessary bridges overall streams along its line.

The case was tried by a jury, who found a verdict of one thousand dollars in favor of plaintiff, and both parties have appealed.

Our attention is called to numerous bills of exceptions taken by counsel on both sides, many of which can hardly be considered as serious, and are overruled in globo.

The objection to the introduction of J. W. Green’s testimony, on the ground that the certificate of the Governor of Georgia to the magistrate’s signature and capacity, had not been signed by him, but by his private secretary, was not well taken. The original document, which is annexed to the transcript, purports to have been signed by the Governor, under the seal of the State, and is conclusive as to its veracity and authenticity.

The objection to the right of Green and Preston, shown to be experienced railroad men, to express opinions as to the time necessary to the building of a bridge, and other matters connected therewith, was prop- • erly overruled, the witnesses, being experts, were competent to give tlieir opinions on the subject matter of their examination.

Some irrelevant evidence was admitted, but it will not be considered by us.

As the whole case is to be reviewed, both on the law and on the facts, we deem it unnecessary to express a formal opinion on the exception urged by defendant to the Judge’s charge to the jury, as it will be virtually disposed of in our statement of the law governing the case.

The testimony is somewhat conflicting, but after a careful examination Of the record, we find the following facts to be fully established under the evidence.

A drawbridge of the Company, crossing Bosuf river, a navigable stream, having been, on inspection, found decayed, rotten and unsafe for the use of a railroad, the Company determined to rebuild the bridge in the summer of 1880.

The superintendent of the road then entered into a contract with an experienced bridge builder, who undertook to build the bridge during the summer months, when Boouf river was usually too low for purposes of navigation.

Owing to an overflow of the surrounding country, caused by inundations from the Mississippi river, lasting until the end of April, the work could not be begun before July, after the complete subsidence of the high water.

In order to accelerate the structure, and to avoid any obstruction to navigation, the Company stipulated with the contractor for the preparation of the necessary materials at their workshops in Monroe, 'and for their transportation to the spot as soon as the stage of the water would permit the structure of the bridge.

In order not to suspend travel and through trains, and acting on long experience which' taught the fact that the navigable season on that river usually began at the end of December of each year, and ended in July following, and that the construction of a temporary stationary bridge immediately adjoining the bridge under progress of construction, would not interfere with navigation, the. Company built such a temiiorary structure, on which they ran their trains. But, beginning in August, and ending only in December following, a very rainy season set in, and swelled the waters of the liver to almost an unprecedented height for the summer season, and materially impeded the progress of the work, which was, in consequence thereof, not completed till late in December, when, under ordinary circumstances, it should and would have been terminated in September or early in October, long before the resumption of navigation on the river as a channel of commerce.

By reason of the incessant rains which impeded the work, an unusually early stage of navigable water on the river, was'obtained in November, when plaintiff undertook to run his boat, in liis accustomed trade, which was mainly above the. bridge, and the passage was obstructed by the temporary stationary bridge of the defendant, and •this obstruction lasted during a time iff which he could have made four trips between New Orleans and the head of navigation on Bceuf river.

Under this state of things, the Company did everything in its power to accelerate the construction of its bridge, and to remove the obstructions to navigation, by adding to the constructor’s force a gang of its own bridge laborers, by working on Sunday, and by trying oven to do night work.

Now, we hold that under its charter, by which it was empowered and authorized to construct, make- and maintain a railroad from a point on the Mississipi>i river opposite Vicksburg, thence west to the line of the State of Texas, via Monroe and Shreveport, the Company had the undoubted right to build all the necessary bridges across any navigable stream in the course of its line, and that the legislature had the power to confer such right.

The grant of power to construct a railway between two points, carries authority to cross navigable waters, if that is reasonably necessary in the construction of the works.” Redñeld, p. 322, Note; 5 Allen, 221. ' ' .

It is also unquestioned, that the State legislatures have unlimited power to erect bridges and railways, and make any other public works across navigable waters, subject only to the paramount authority of the national government.” Redfield, 323; People vs. Renssalaer & Saratoga R. R. Co., 15 Wendell, N. Y., 113; Gilman vs. Philadelphia, 3 Wall. 713; The Wheeling Bridge case, 18 Howard, 432 ; The Blackbird Creek Marsh Company’s case, 2 Peters, 245; Worth vs. Junction R. R. Co., 5 McLean, 425.

These principles, resting on foundations of reason, as well as of law and authority, giving the right to build necessary bridges, necessarily imply not only the right, but the duty of the Company to keep and maintain them in such repair as the public safety may require, Hence, the legal right of the defendant Company, to rebuild the bridge in question, which had been pronounced unsafe by competent authority.

We shall now consider whether, under the circumstances disclosed by the record, the Company can be held .responsible for the damages occasioned by it to the plaintiff, through the delay which it met in the construction of that bridge, which delay became unavoidable, under the unexpected, unforeseen and unprecedented rains which prevailed during the months of August, September, October, November and December of that year.

This proposition involves the consideration of the question of a party’s responsibility in damages for injury done to another, in the pursuit of a legal right, or in the performance pf a lawful act. And both on reason and authority the inquiry must be answered in the negative.

The Company had the right to build the temporary bridge, in order to facilitate the structure of the new bridge, and for the purpose of continuing its through trains. If the bridge had been completed, and the obstruction to navigation removed before the resumption of trade on the river, as had been contemplated, and as it was reasonably expected, no one could have complained, as no one could have been injured or damaged. The delay was caused by accidents and circumstances over which the Company had no possible control, and for which it cannot be held responsible in justice or in law.

In the case of the Memphis & Ohio R. R. Co. vs. Hicks, 5 Sneed Tennessee, p. 427, it was held, “that the provision in the charter of a railway company, authorizing it to bridge a navigable stream, provided that the navigation of the stream shall not be obstructed, is not violated by a temporary obstruction of the stream by scaffolding, etc., in the construction of the bridge.”

The present case presents circumstances clearly entitling the defendant to the protection of the rule of “ damnum absque injuria,” and we are, therefore, compelled to exonerate it from any responsibility for the dam ages resulting from the temporary obstruction to the navigation' of Boeuf river, in its attempt to rebuild a necessary bridge. Ransom vs. Labranche, 16 An. 121; 11 An. 711; 15 An. 559; 27 An. 442; Week’s Absque Injuria, Pars. 48, 49.

This conclusion eliminates from discussion the question of the damages, which plaintiff majr or not have suffered from the obstruction of the river, which is thus shown not to have been unlawful.

It is, therefore, ordered, adjudged and decreed, that the verdict of the jury be set aside, and the judgment of the lower court annulled, avoided and reversed; and it is now ordered, that plaintiff’s demand be rejected, and his action dismissed at his costs in both Courts.

On Application por Rehearing.

Fenner, J.

It is proper to state that, in this case, the evidence establishes that Boeuf river, the stream across which the bridge was built, lies, as a navigable stream, wholly within the limits of the State of Louisiana. Although the upper portion of the stream itself lies in Arkansas, it is not navigable, and has never been navigated as high up as the Arkansas line.

The authority of Congress over navigable streams is an incident of the power to regulate commerce among the States, and only affects rivers which are highways of commerce between different States.' As to streams which are navigable only within the limits of a single State, the authority of its legislature is complete. Penn. vs. Wheeling Bridge Co. 18 How. 432; 1 Redfield on Railways, § 78, notes and authorities cited.

This makes it clear, that in the instant case, the authority derived from the legislative action of the State did not conflict, under any view, with any paramount authority of the federal government. '

Rehearing refused.