author: Nioholls, C. J.

text:
    No. 11,404.
    M. W. Solomon vs. Edward Diefenthal.
    3. Where a party who sells his business and the good will thereof, contracts that he will not engage in the same business in the same place for five years, and-stipulates, “ that in the event of the violation of his engagement in whole or in part, the damages inflicted upon the purchaser, in consequence thereof, are liquidated and fixed at five thousand dollars, which he agrees to pay as a pen-, alty for said violation, and consents that the purchaser shall restrain him by • injunction, if necessary, from any attempt to violate said engagement, authorizing any court of competent jurisdiction to do so on application,” his subsequent violation of the agreement will not entitle the other party to demand ' and obtain at one and the same time a judgment for five thousand dollars and an injunction.
    Parties are much more free to make contracts than they are to stipulate for and regulate legal remedies.
    3. Where a party sues for a personal judgment for five thousand dollars as the ■ stipulated penalty, or the damages fixed and liquidated for a violation in ■ whole or in part of a contract, not to do certain business for five years, and > demands and obtains at the same time against the other party an injunction i restraining him from pursuing such business as an instrumentality to enforce • specific performance — the demand, as presented and filed with the two remedies coupled, is an entirety and an inequitable one. The injunction should not be allowed. If allowed it can not be made good abiniiio by a subsequent offer to discontinue apart of the demand. A motion to dissolve the injunction was ■ correctly sustained.
    APPEAL from the Civil District Court, Parish of Orleans,. Ellis, J.

      Lazarus, Moore & Luce, Attorneys for Plaintiff and Appellant,
    cite: High on Injunction, Secs. 1138-9, 1175; Bird vs. Lake, 1 Hun. and Miller, 111; McCaull vs. Braham, 21 Blatch. 278; Hardy vs. Martin, , 1 Cox’ Eq. Cases, 26; Diamond Match Oo. vs. Roeber, 106 N. Y. 486; 39 An. 904.
    The precise question submitted by defendant in the instant case was ■ tendered to and received decision from the Supreme Oourt of this State in Levine vs. Michel, 35 An. 1121, and ought to be,. as we have no doubt it will be, determinative of this case.

      Dinkelspiel & Hart, Attorneys for Defendant and Appellee,
    cite: O. C., Art. 1934, 2125; 38 An. 869; 23 An. 397; Field’s Law of-Damages, pp. 142-3.
   The opinion of the court was delivered by

Nioholls, C. J.

Plaintiff and defendant were formerly partners •as butchers in New Orleans. The present litigation is the result of the sale by the defendant to the plaintiff of all the former’s interest in the business of the firm, in the stock in trade and all appliances and appurtenances thereof, including the tools, horses, wagons, good will, custom, patronage and certain enumerated contracts for the -price of three thousand dollars, two thousand dollars of which were paid cash, and the balance represented by the purchaser’s note, payable at six months.

The present suit was instituted in October, 1893. Plaintiff, after setting forth in his petition the above facts, alleges that in the contract it was further stipulated, as a part of the consideration for the price paid, that defendant was not to engage in any similar business, directly or indirectly, in the city of New Orleans, for the period -of five years, nor was he to solicit business for himself or for any other person or persons, so engaged during the said period, defendant binding and obligating himself, in the event of the violation of «aid obligation, in whole or in part, to pay damages to the plaintiff, which damages were by said act fixed and liquidated at the sum of five thousand dollars, defendant agreeing to pay said amount as a penalty for any violation of the said stipulation, and that plaintiff should restrain him by injunction in any attempt to violate said agreement.

He further alleges that the interest conveyed by the defendant was worth much less than three thousand dollars, and that the main reason and consideration for the payment of the three thousand dollars was defendant’s obligation not to engage in business or solicit orders, as before stated. He then represents that defendant had, on the 27th of September, 1893, violated this obligation by opening and establishing at stall No. 44, Dryades Market, in New Orleans, a place for the vending of fish, poultry, meats, etc., and had there sold the same, and would continue so to do unless enjoined. 'That by reason of the said conduct plaintiff had by law, and by defendant’s express agreement, a right to restrain him from further eonductingbr pursuing the said business, directly or indirectly, and from soliciting, directly or indirectly, any trade or customers for that or any other similar business. ‘That inasmuch as by the stipulations of the act of sale damages for the -violation of said agreement are fixed and liquidated at the sum of five thousand dollars, plaintiff is entitled "to recover that amount from the defendant. He prayed for the injunction to which he averred himself entitled, and for judgment in his favor for the sum of five thousand dollars, with legal interest from judicial demand.

An injunction was granted as prayed for, and was duly served upon ’the defendant.

On the 10th October, at the instance of plaintiff, defendant was ruled to show cause, on the 12th of the same month, why he should not be punished for contempt for having violated the injunction. On the same day (the 10th) defendant moved to dissolve the injunction on the ground that the petition showed no cause of action, and that the bond and security given for the injunction were insufficient. "This motion was fixed for trial for the 12th. The rule for contempt and the motion to dissolve the injunction seem to have been taken up and tried together, the trial resulting in a judgment dissolving the injunction. From that action of the court plaintiff appealed. ¡Subsequently to the taking of the appeal defendant died, and his widow and heirs having been made parties they have asked in this eourt an affirmance of the judgment.

Appellant insists, that believing he was entitled under his contract 'to ask, at one and the same time, both a judgment, for five thousand -dollars by way'of damages or penalty, and an injunction for the purpose of enforcing defendants’ obligation not to engage in business, he had the right to frame his demand accordingly, though possibly -in so doing he subjected himself to being forced to an election as to which of the two claims he would stand upon, should the court hold that this could not be done. He complains that the District Court by its action cut him off from a right and power of election which belonged to him, even if the two demands were inconsistent, and that the court itself made for him an arbitrary election which it was not authorized or warranted in making. He maintains before us that the two claims were not inconsistent, and that he can in the premises legally exact both a moneyed judgment and an injunction.

The matter as presented to the district judge was, on the one hand, the ordinary one of a demand for a personal judgment for a ■sum of money, coupled with an injunction, apparently accompanying it as an incidental remedy, and on the other a motion to dissolve that injunction on the face of the papers, for the reason that the petition -showed no cause of action. This motion was the customary one employed in matters of injunction, and the expression that the petition showed no cause of. action had reference to it. The motion as - made, called simply for an absolute decision, either maintaining the-injunction .or setting it aside. There was nothing to intimate to the judge that any right of election w.ould be involved in his decision. Plaintiff did not suggest to the court that it should so frame its-decree as to save a right of election. Possibly this might have been done, had the right of election now claimed really existed, by a-conditional or contingent order of dissolution; but whether this be so or not, such a- right or privilege is not shown by the record to-have been mentioned or hinted at.

.The court was probably of the opinion that the plaintiff by asking for a judgment of five thousand, dollars was ipso facto in the position of having himself already forcedly made an election. It may also-well be that an examination of the pleadings and prayer as a whole-led it to the conclusipn (injunction not being necessarily a writ of right) that the facts disclosed by the petition were of a character-such as to bar the remedy-of injunction, independently of the question of an election.

Defendants’ position — sustained by the court below — is that plaintiff in proceeding against him, and asking for a judgment of five thousand dollars, abandoned any right which he might have otherwise had to an injunction.

We.are of the opinion that plaintiff would have had the right to an injunction against defendant to enforce the obligation entered into by him in his contract, not to -engage in business in New Orleans fora certain time. This court has so decided, in Levine vs. Michel, 35-An. 1121 and there are numerous common law authorities to the same-effect.

Plaintiff concedes that he would take this remedy, not by virtue of' any permission from the defendant, but from the law, and says he-refers us to the express consent of the defendant to its exercise, as-going to show the intentions of the parties and to fix and establish, the character of the claim for five thousand dollars.

Referring to the defence made in the case as mentioned above,, plaintiff, in his brief, says: “ On this proposition the authorities are-agreed that the -test -is the intention of the parties to the contract, to be.gathered from the-.contract itself in its entirety. Thus, if it should appear that the intention of the parties to the contract was that upon. the payment of a stipulated sum it should be permissive of the right to commit the breach, and that the stipulation to do or not to do may then be done or not done, as the case may be, then there can be no action for the stipulated damages and for the specific performance also. But if, on the other hand, the evident intention of the contracting parties, as gathered from the contract in its entirety, js that a specific performance of the obligation to do or not to do is the prime or moving object or cause for the contract, and that a stipulation of a ‘ penalty ’ for the breach was intended, not as a measure of bad faith, but as an inducement to good faith, an action will lie to recover the penalty and an injunction may go out to stay the action complained of.”

We do not understand the defendant to assert that the contract, as made, created a facultative obligation entitling him of right to recede from his obligation not to engage in business upon payment of five thousand dollars, thus depriving plaintiff of any legal power of control over defendant’s actions in that respect. Defendant sets up no such pretension. We take it that he perfectly well understood and recognized that in undertaking to open an establishment of his own, he did so in express vielation of his obligation, and not under a conditionally reserved right, and that he well knew that he subjected himself to all the rights and remedies which would belong to the plaintiff as the result of that fact.

What we have to deal with now is the ascertainment of what those rights and remedies are. We have already said that he could have checked the defendant by injunction. If he thought proper not to do this, he was undoubtedly entitled to bring an action against him, demanding five thousand dollars damages as for breach of contract. But the question is, is he entitled in this case to do both. It may be true that there are eases where a primary obligation having been entered into, and a penalty stipulated to insure its performance, the obligee may properly sue for the penalty and also for the specific performance of the obligation; and also eases where a demand for the specific performance of an obligation may be legally coupled with a demand for liquidated damages resulting from its breach. We confine ourselves to seeing whether the present case falls within one or the other of those .classes without attempting to discuss or define what those classes are.

In Art. 2125 of the Oivil Code it is declared that “the penal clause is the compensation for the damages which the creditor sustains by the non-execution of the principal obligation. He can not-demand the principal and the penalty together, unless the latter be stipulated for the mere delay," and in Art. 2127, that the courts are authorized to modify the penalty when the principal obligation has-been partly executed, except in case of a contrary agreement.

The fifth paragraph of Art. 1934, C. C., referring to damages arising from breach of contract, says: “Where the parties by their contract have determined the sum that shall be paid as damages for its breach, the creditor must recover that sum, but is not entitled to more. But when the contract is executed in part, the damages-agreed on may be reduced to the loss really suffered, and the gain of which the party has been deprived, unless there has been an express-agreement that the sum fixed by the contract shall be paid even on a partial breach of the agreement."

With these provisions of the law before us, let us refer to the terms-of the special contract. The act between the parties referring to the obligation assumed by the defendant not to engage in business says:

“ In the event of the violation of this obligation in whole or in part the damages inflicted upon the purchaser or his assigns in consequence thereof, are hereby liquidated and fixed at the sum of five thousand dollars, collectible in any court of /competent jurisdiction, and the vendor agrees to pay said amount as a penalty for said vior lation. He further consents that the purchaser shall restrain him by injunction, if necessary, for any attempt to violate said engagement, hereby authorizing any court of competent jurisdiction on the application of said purchaser and according to law.”

In examining the clauses of this contract the words “ in violation of this obligation in whole or in part,” which we have ourselves italicized, are specially noticeable. By the contract the sum of five thousand dollars was fixed as the damage which would be inflicted on the purchaser, or the penalty which would be imposed upon the vendor independently of the extent or duration of the breach, whether it should cover an hour, a day, or the whole five years during which this obligation was stipulated to continue. Let the time be long or short, let the actual damage be large or small, the parties contracted for the payment to the plaintiff of the sum of five thousand dollars, and withdrew from the courts a power of reduction or modification. By express agreement the bare fact of a violation of the obligation by the defendant entailed upon him a liability to pay plaintiff the full-amount agreed upon.

Let us now turn to other articles of the Oode relative to breaches-of contract and see what their provisions are. We quote some of them in full, italicizing certain words, as we have already done in case of articles already copied.

Art. 1926. “ On the breach of any obligation to do or not to do,, the obligee is entitled either to damages, or, in cases which permit it, to a specific performance of the contract at his option, or he may require ihe dissolution of the contract, and in all these cases damages-may be given where they have accrued according to the rules established in the following section:”

Art. 1927. “In ordinary cases, the breach of such a contract entitles the party aggrieved only to damages, but where this would be an adequate compensation, and the party has the power of performing the contract, he may be condemned to a specific performance by means prescribed in the laws which regulate the practice of the courts.”

In City and Levee Board vs. Railroad Co., 44 An. 67, this court said: “ It is only when no adequate compensation can be made in damages that courts in this State can decree a specific performance of a contract. The decree can not be demanded asa matter of'right. It rests largely upon judicial discretion not arbitrarily exercised, but according to the soundest principles of equity and justice.”

The injunction which issued in this case was adopted as an instru-’ mentality by and through which to enforce the “ specific performance” of defendant’s obligations, and the propriety of its issuance and its perpetuation must be viewed from that standpoint. Specific performance, as we have just seen, is not demandable as a matter of right, and under Art. 1927 it is not granted where the parties have' provided for adequate compensation in case of breach. Such is precisely the condition of the parties to this litigation. They have themselves fixed upon five thousand dollars as being an amount sufficient to compensate plaintiff for a violation during the whole five years to which the contract refers.

If damages had been liquidated in the contract at so much per day, or per month, and plaintiff, at th.e end of two or three months, had sued defendant for the amount of the past due accrued and exigible damages, coupled with an injunction against further continued violation of his obligations, a very different case would have been presented than that which is actually before us. The contract between these parties was entered into on the 13th of July, 1892. The first infraction of the same by defendant is mentioned as having occurred on the 27th of September, 1893, and this suit in which plaintiff sued defendant for five thousand dollars and caused an injunction to issue against him, prohibiting him from engaging further in the business of butchering, was instituted on the 4th of October following — only seven days after the first violation by defendant of his engagement. If plaintiff, after taking out an injunction, had maintained it in force for one or two years, and had then voluntarily dismissed it, or discontinued it, he would still be entitled, under his contract, to a judgment for five thousand dollars, and defendant would be entitled to no credit, either ior the period between the date of the contract and its first infraction, during which time his contract stipulations would have been observed voluntarily by him, nor credit for the enforced observance of those obligations, through the injunction, from the time of the issuing of the injunction up to that of its discontinuance.

We do not think such harsh and unreasonable results should be permitted to be brought about by the courts through a remedy which is discretionary with them in its application. The agreement of the parties in this matter is of no importance. Parties are much more free to make contracts than they are to regulate and stipulate as to the legal remedies. 15 An. 246.

The demand as presented and filed, with the two remedies coupled, was an inequitable one and an entirety, and the injunction should not have been allowed — it could not now be given life to and .legalized ab initio by an offer to discontinue a part of the demand, even had such an offer been made, which it has not. This view of matters relieves us of any attempted classification of the obligation which the parties entered into from examining to see whether there is a difference between the liability of five thousand dollars provided for considered as a “penalty ” and the same liability considered as “ liquidated damages.” And if such ther¿ should be, to distinguish between the effects of the one and those of the other. Our judgment in this case would not be altered by reason of any distinctions of that kind.

Plaintiff informs us, the defendant is now insolvent and' - a judgment against him would serve no useful purpose. The possibility of defendant’s future insolvency was a matter which should have been foreseen and guarded against by proper security — the plaintiff did not deem this security necessary at the time of the •contract.

The case of Stafford vs. Shortreed, reported in 17 Northwestern. Rep. 756, resembles the present in many of its features. In that case the Supreme Court of Iowa held, that “where a party who sells his business and the good will thereof contracts that he will not carry on the same business at the place of sale, or within a certain distance thereof for three years ‘ under penalty of one hundred dollars,’ and violates this agreement, the only remedy is an action to recover the amount named in the contract, and in such an action an injunction to restrain the continuance of such business, in violation of the contract, can not be granted.”

In that case, as in this, it was contended that the defendant was insolvent. The court said: “ It is to be presumed that the plaintiff made his contract with full knowledge of defendant’s financial standing and ability to discharge his obligations. If he had doubts upon that question he should have required some security to protect himself against any damages which he might sustain by reason of the failure to observe his agreement. As he took the defendant’s promise to pay him one hundred dollars if defendant should violate his .agreement, he can not ask more than the ordinary process of the law to enforce payment. The amount which the defendant agreed to pay is in the nature of stipulated damages. It can not be regarded as a penalty, because the actual damages which plaintiff may sustain by a violation of the agreement must, in the nature of things, be subject of mere conjecture. They can not be established by evidence even approximately. Section 8886 of the Code has no application to .a case like this. It is therein provided that in all cases of breach of contract or other injury where the party injured is entitled to maintain and has brought an action by ordinary proceedings, h© may in the same cause pray and have a writ of injunction against the repetition or continuance of such breach of contract or other injury * * * In this case there can be no repetition or continuance of a breach of the contract, because when the defendant commenced to work at ' blacksmithing at Pottsville he incurred the whole liability, which was to pay plaintiff the one hundred dollars.”

We are of the opinion that the judgment appealed from is correct, -and it is therefore hereby affirmed.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 11,489.
    Mary R. Palmes vs. J. J. Kuhn.
    A paper in the nature of a counter letter to the effect that the person executing it has no interest in certain property apparently conveyed to her by authentic act is effective as a renunciation of title, and protects the purchaser acquiring ' ■ the property from-the party in whose favor the renunciation is made. Civil, . ' Code, Arts. 2239, 2240, 2242; 7 La. 151; 10 La. 411.
    The appellant, in good faith, seeking in this court the determination of a question, affecting liis rights will not be made to pay damages, merely because the supposed questions admitted of easy solution without appeal. •
    APPEAL from the Civil District.Court, Parish of Orleans. Ellis, J.

      E. L. Richardson Attorney for Plaintiff and Appellee.

      J. B. Rosser, Jr., Attorney for Defendant and Appellant.
   The opinion,of the court was delivered by

Miller, J.

.Defendant appeals from the judgment of the lower court adjudging that he shall comply with the adjudication to him of certain property of plaintiff.

The defence is that the title tendered by plaintiff is not satisfaetory. It appears that plaintiff once executed a deed of the property .to her,daughter. But soon after her daughter signed a paper to the effect she had no interest in the property, “ waiving ownership of the same.” and declaring the property is hereby returned to her mother. . ,This..paper is under private signature, but is proved and has been on record since 1887. This paper arid a letter from an attorney of the sister of the daughter, to whom the mother once .made the deed, asserting an interest is the property, is the basis of the defence. The sister, on whose behalf the letter was written, intervened in this suit, offered no proof in the lower court and filed no brief here., The paper or counter letter is none the less effective, because under private-signature. Civil Code, Arts. 2289, 2240, 2242; 7 La. 151; 10 La. 411. The title tendered by plaintiff is hence incontestible. Besides, the heir of the daughter of the plaintiff, on whose behalf the attorney’s letter was written, being a party to this suit, is bound by the judgment and that protects defendant.

We are not disposed to encourage unnecessary appeals, but where the litigant in good faith comes to this court for the determination of questions affecting his rights, he should not, we think, be mulcted in damages, merely because the supposed questions admitted of easy solution without appeal. The ease in our opinion is not one in which damages should be given.

It is therefore adjudged and decreed that the judgment of the lower court be affirmed with costs.


author: Nicholas, C. J.

text:
    No. 11,399.
    The State of Louisiana vs. Dasylva Courcier.
    On appeal from a judgment of the Recorder’s Court of the City of New Orleans finding a person guilty of having violated an ordinance of that city, and imposing upon the party charged, as provided for in the ordinance, a fine of twenty-five dollars, qr on default of payment imprisonment for thirty days, the case is not before the Supreme Court generally, but only upon the restricted issue of the constitutionality and legality of the fine and penalty imposed by the municipality; therefore it can not, when that remedy is resorted to, examine into and pass upon the question as to whether the person who presided at the trial and rendered and signed the judgment was legally authorized so to do; for the same roason it can not grant relief when the complaint made by the accused is that under the charge as made, and the evidence as received, the judge has sentenced him, not under an illegal ordinance, but without the authority really of any ordinance at all, and therefore without warrant of law,
    PPEAL from the First Recorder’s Oourt, City of New Orleans. Adams, J.

      M. J. Cunningham, Attorney General, and C. H. & C. C. Luzenberg, for the State, Appellee:
    Ordinance No. 92, O. S., of the City of New Orleans, making it unlawful for any one to sell, barter, exchange, or otherwise dispose of any lottery ticket or- token of any kind, is a legal and constitutional ordinance.
    In appeals from convictions under City Ordinances the jurisdiction of the Supreme Court is confined to an examination and determination of the legality and constitutionality of the Oity Ordinance under which the said fine or imprisonment was imposed. With the affidavit and the facts set forth in it, and with the evidence in the ease on which the. Recorder founded his judgment, the Supreme Court has nothing to do.
    Any one of the Recorders pro tem. can preside over any Recorder Court of the City of New Orleans in the event of sickness,' absence, or suspension of the Recorder.
    If an agent of an illegal lottery company pays the prize drawn by an illegal lottery ticket for the said illegal lottery ticket, the said agent “ disposes ” of said illegal lottery ticket under Ordinance . No. 92, C. S.

      Lionel Adams made oral argument but filed no brief.
   The opinion of the court was delivered by

Nicholas, C. J.

The defendant, charged with having violated an Ordinance of the City of New Orleans, was tried in the First Recorder’s Court of that City, found guilty and sentenced to pay a fine of twenty-five dollars, or, in default of payment of said fine, to imprisonment in the parish prison for the term of thirty days. The trial was conducted before and the judgment rendered and signed by Samuel Levy, signing himself acting judge of the First Recorder’s Court of New Orleans. The defendant has appealed.

The affidavit on which he was arrested charges “ that on the 16th day of October, 1893, at about — o’clock —. M., on Baronne street, between Gravier and Union streets, in this District and City, one tobe pointed out, did then and there violate Ordinance No. 92, C. S., relative to illegal lottery tickets, by cashing or paying a prize supposed to be drawn by a ticket of an illegal lottery company,” wherefore deponent charges the accused with violating Ordinance No. 92, O. S., and prays that he be arrested and dealt with according to law.

The affidavit was taken before T. R. Adams, signing as Assistant Recorder.

Before trial defendant pleaded (1) “That Samuel Levy, a resident ■of the Fifth District of the City of New Orleans is not competent to sit and act as a Recorder pro tem. in and for the First Recorder’s Court for the City of New Orleans; (2) Because the affidavit sets out no offence known to the law.”

The Court overruled these pleas, and defendant excepted to the ruling.

■Ordinance No. 92 referred to is as follows:

■ 1. That it shall be unlawful for any person'or persons to sell, barter, exchange or otherwise dispose of any lottery ticket, or token, policy, combination, device, or certificate, or fractional part thereof, in any lottery drawn, or to be drawn in or out of the city of New Orleans, unless the same be duly authorized by the laws of the State of Louisiana.

2. That any person or persons violating the provisions of this ordinance shall, upon conviction before the Recorder within whose jurisdiction the offence was committed, be condemned by said Recorder to pay a fine of twenty-five dollars for each offence, and, in default of payment, to imprisonment for not less than twenty nor more than thirty days.

In the judgment appealed from it is declared that “ considering the evidence adduced and the provisions of Ordinance No. 92, O. S., the Court adjudges the said Dasylva Courcier to be guilty'of having, on the 16tb of October, 1893, on Baronne street between Gravier and Union streets, violated Ordinance No. 92 relative to illegal Tottery tickets, by cashing or paying a prize supposed to be drawn by a ticket of an illegal lottery company.”

Defendant urges upon us that we should reverse the judgment for the reason that Samuel Levy, who presided at the trial, was not competent to sit and act as a Recorder pro fern, in and for the First Recorder’s Oourt for the City of New Orleans, he being a resident of the Fifth District of the City of New Orleans. -

Assuming this exception to be well founded in law and fact, we would not be authorized in this proceeding to so declare. This case is before us on appeal, not generally, but on the special restricted issue of “ the constitutionality and legality of the fine, forfeiture or penalty of a municipal corporation.’? We can not extend our inquiries beyond that issue. This Court reversed the judgment of the-District Court in two criminal cases — State vs. Philips, 27 An. 663, and State vs. Fritz, Id. 689 — upon an assignment of error involving the competency of the person who presided as judge on the trial of those cases, but the Supreme Court had full -and complete appellate jurisdiction over them for all purposes.

Defendant next contends that the judgment should be reversed for the reason that the affidavit on which he was tried sets out no offence known to the law, but that, if the ordinance was intended to and did, as a matter of law, by implication prohibit the act complained of against the defendant, in that respect the ordinance was null and void, for the reason that the purpose of the Common Council was not disclosed by the prohibitions of the ordinance, and that the object of the ordinance was not set forth either in the title or in its enacting clause, and that therefore defendant was deprived of his constitutional right to be informed of the nature and cause of the accusation against him.

This sainé objection was interposed in the Recorder’s Court, after the case was tried but before judgment was rendered therein.

In the brief for the prosecution the title of the ordinance is said to be “An ordinance for the purpose of carrying out the provisions contained in paragraph 12 of Sec. 8 of the present City Charter,” though the copy in the record is headed ‘1 Unlawful Sales of Lottery Tickets.” Whether it be one or'the other, we think the objection which defendant contingently raises as to the title not well founded. We know of no law extending the provisions of Art. 29 of the Constitution so. as to make them cover municipal ordinances.

We do not think that the questions which the defendant seeks to have this court pass upon can, as presented to it in this case, be adjudicated upon.

The affidavit charges the defendant with having violated Ordinance No. 92, C. S., and accompanies or bases the charge upon specifications set out. -.The sufficiency of the affidavit is not before us. As matters stand, the complaint of the defendant is not that the ordinance itself is' illegal or unconstitutional, but that the Recorder has made the ordinance apply to a case outside of the terms thereof and not covered by it. In other words, that under the charge as made and under the evidence as received the judge has sentenced him, not under an illegal ordinance, but without the authority really of any ordinance of the city at all, and therefore without warrant of law. If this be true, defendant was not without remedy, but the remedy was not by appeal in the respects we have just been alluding to, as has been attempted here. There being no question before us within our appellate jurisdiction, the appeal is dismissed.


author: Nicholls, O. J.

text:
    No. 11,428.
    Succession of Jacob Von Hoven.
    Where a person in his will bequeaths to his wife certain property, and appoints her as his executrix without seisin, it is her duty, in. filing her final account, to account for all property left by the testator at his death, including that specially bequeathed to her, and to pray that she be authorized to dispose of the same in such manner and to such persons as she believes'should be made under the terms of the will and the law. The heirs must be cited and made parties to this account and demand, and they have the legal right to malte available all objections which they have to the same by oppositions thereto. Objections to the special legacy to the wife as being in excess of what could be bequeathed to her by her husband, can be urged in that way, as can also all objections to the items of the inventory, as being either appraised too high or too low. O. P. 1004.
    APPEAL from the Civil District Court, Parish of Orleans. Bightor, J.

      B. B. Forman Attorney for Executrix et als., Plaintiffs:
    An heir can not require that property given as a particular legacy be applied to pay debts, when there is more than enough of other property.
    When a widow in community and executrix and an heir file a schedule of debts, and show there are debts to be paid and, excluding the legacy, no money to pay them, and demand an •order of sale of enough property to pay the debts, and at ■the same time demand that the residue of the property be sold to effect a partition, and the only other heir admits that the property can not be divided in kind, and prays for a partition by lieitation, a judgment ordering a sale of all the property,not included in the particular legacy and reserving all other issues is an interlocutory order from which no injury follows, and, being in accord with appellant’s prayer, she can not appeal. At all events on the pleadings and admissions the judgment should be affirmed.
    When there is no prayer to reduce a donation to the disposable portion, and no such issue is made, a defendant in a petition to sell property to pay debts and to effect a partition has no right to demand that her right to bring action to reduce the donation be reserved to her. .,

      When a ease has been tiled on evidence freely admitted and-' decided, the reservation of rights of action set up, but not formally decided, would be a matter in the sound discretion of the trial judge, and his failure to make a reservation not-asked is no error in law.
    It would be error in such a case for a judge by such a reservation to-make a suggestion of an action in disregard of filial duty, which, had never been biought.

      Henry P. Dart Attorney for Heir, Appellant :
    Where an issue is distinctly raised, looking to the reduction of' a will as in excess of the disposable portion, it is an error-for the court to reserve said objection to be urged against the-executor’s account. Such a claim must be made by direct action. 10 An. 28; 0 . O. 1504 et seq.

   ' The opinion of the court was delivered by

Nicholls, O. J.

Jacob Yon Hoven died on the 9th of February,. 1898. He left surviving him two daughters, issue of his first marriage, and a widow. He left a will dated October 81, 1890, by which-he bequeathed to his widow certain real and personal property,, and appointed her executrix without bond but without seisin. She accepted the executorship, and with the consent of Magadelina Yon Hoven (wife óf Edward Englebrecht), one of the heirs, she administered the succession, the property of which was inventoried under an order of court, on the 13th of February, 1893.

On the 16th of March, 1893, the widow as testamentary executrix- and widow in community, joined by Mrs. Englebrecht, presented a petition to the court, in which they declared that they annexed thereto a detailed statement of the estimated debts and liabilities of the succession, and alleged that the bricks left and the outstanding accounts would not realize enough to pay the debts; that it was necessary to sell property to pay debts, because the movables and money left by the deceased were given as a particular legacy to the widow, and that certain landed properties (describing them) were acquired during the last community, and one-half belonged to the widow,. as a widow in community, which community she accepted under-benefit of inventory. That both petitioners were .unwilling to hold the same in common with Louisa Von Hoven (wife of Oasimir Muller), the other heir of Jacob Yon Hoven, and that it was necessary to sell the property in order to settle the community, and that it ■ could not be divided in kind without greatly depreciating its value, and that it was necessary to sell certain specified real estate belonging to the separate estate of the deceased to pay debts, petitioner, Marie Englebrecht, averring that she was unwilling to hold said property in common, and that this can not be divided in kind without a , depreciation of value, and that she could not come to ary agreement with reference to a partition with her sister, Louisa Yon Hoven. In . view of the premises, petitioners prayed that Louisa Von Hoven be • cited and that enough -of the property described be ordered to 'be sold to pay debts; that experts be appointed to report whether or not - the residue of the property not ordered to be sold to pay debts, and ■ not included in the particular legacy to the widow, can be conveniently divided in kind without a depreciation of its value, and if they so report or the same be admitted by the defendant, Louisa Muller, that a decree for a\ sale be made, and in any event that a decree or partition be made of all the property of the succession not ■ sold to pay debts, and not included in the particular legacy to the widow. That enough of the proceeds be left in the hands of the executrix to pay the debts and liabilities, and the residue .be partitioned between the parties in interest according to their respective • rights, and that they be referred to a notary to effect said partition.

Mrs. Louisa Von Hoven, joined by her husband, Oasimir Muller, filed an answer to this petition in which, after pleading the general issue,. they averred that Jacob Von Hoven was thrice married; that his first ■ wife was the mother of respondent and, of Mrs. Englebrecht; that-she died in 1866, and the property ^which belonged to the community between herself and Von Hoven is in the main the property now forming the estate of Jacob Von Hoven, in which property respondent Louisa Von Hoven, claims an interest as heir of her mother. That recently respondent’s father admitted judicially in proceedings . had in the courts of Louisiana that he had omitted from the inventory and had not accounted to his children, or included in the succession of their mother, some fifty thousand dollars belonging to-said succession. That while it is true said Von Hoven caused-. the succession of his first wife to be opened in and during the minority of the respondent, and caused the real estate to be adjudi-■cated to himself, it is still true that he failed to account therein for the sum of fifty thousand dollars, and respondent was not aware that-said money was and formed part of said community, until the facts were acknowledged by her father in the proceedings had in the matter- of Weller vs. Von Hoven, No. 18,116 of the docket of this ■court 42 An. 602, and under the circumstances, and as heir of her deceased mother she is entitled to recover from the estate of her deceased father her virile share thereof, namely, one-sixth (her mother having left three children issue of said marriage), that is to say, eight thousand three hundred and thirty- three dollars and thirty-■ 'three cents, with legal interest from demand.

That about the year 1868 respondent’s father contracted a second marriage with Barbara Weller, from whom he was judicially sepa-' rated in 1884, and no children were born of that marriage, and that community was closed by the judgment rendered by the Supreme Court of Louisiana in the case between them reported in 42 An. 602. That respondent is informed that thereafter Von Hoven contracted a third marriage with one of the plaintiffs herein, and there were no children issue of said marriage. That under and according to the terms of the last will of said decedent, he attempted to give ' to plaintiff, his third wife, about one-half of his estate, which legacy is in excess of the share or portion reserved by law to respondent and' her co-heir, and is in contravention of the law of this State, and •especially in violation of the act of 1882 amendatory of Art. 1752 of the Civil Code, and said legacy should be reduced to the one-third of-hip estate, after paying the debts and charges of the same, including the amount due to respondent, as aforesaid. That the community between plaintiff and Von Hoven, if one existed (which is -denied), did not acqúire the real property referred to in thepeti-’ tion — on the contrary, the same was and is the separate estate of the deeedent, bought and paid for with the separate funds of Von Hoven, and the acquisition or transfer of title when made to him, was paid for merely by credit on the judgment which plaintiff Von "Hoven, in t*hé' suit of Von Hoven vs. Elizabeth Barlow, obtained in the. said proceedings, the judgment being a mere recognition of the-•debt due by said Barlow to Von Hoven before his marriage with the’ plaintiff; but should it be decreed that said realty was and is an ac-! quisition by. and for the second community, then the said property and second community should be charged with the amount of said debt, interest and costs, to-wit, the sum of twenty-two thousand dollars, or thereabout.

That the list of debts furnished by the plaintiff is not a true showing; on the contrary, the said amounts are not due by the estate, and if due in any sum whatever, they are grossly overcharged and -should not be recognized or admitted by the court. That the plain? tiff has taken possession of the decedent’s estate and sold the prop? •erby thereof without the authority of the court, and without right •so to do, whereby she has made herself liable for the debts of said -estate, if any, and respondent avers that she has not filed any show? ing or account of the sums of money of which she has possessed herself in this and other ways — the same being the funds and property •of the estate, and respondent asks that the plaintiff be ordered to render a just and true account of what she has done in the premises, and that she be condemned to restore to the estate the sums of money thus by her obtained.

That in the inventory taken in her absence by the plaintiff •the property of the estate which she claims has been donated ;to her, and which she claims and reserves as her particular legacy; has been grossly undervalued, as respondent will prove on the trial; that live stock and vehicles, sand, and utensils of various kinds have :been particularly -Undervalued, and the real value of the things contained in said special legacy exceeds by at least ten thousand dollars -the valuation affixed thereon in said inventory. That in the said inventory is entered and valued at ten thousand dollars, five certain claims in suits by Yon Ho ven against the Texas & Pacific Railway Company, which claims have no value at all, and ceVtainly no such value as has been given therein. That other claims mentioned therein have likewise been therein overvalued, the whole for the specific purpose of inflating the apparent share coming to respond-' cnt as heir at law of her father, and the said inventory is therefore .not a just or true inventory of the estate.

That the decedent left upward of nine thousand dollars in bank, which can and should be used in paying debts, and it is not necessary to burden his estate with an administration for the purpose of pay-, ing said debts, if any — that being a matter which can be adjusted in. .the partition herein sought. . . ■;

Respondent declares that she is willing to partition and divide said' estate, and she admits that the property composing the same cannot conveniently be divided in kind, wherefore she prays that there-may be judgment decreeing a full, final and definitive partition of the estate of Jacob Von Hoven by licitation, in the manner provided by law, on such terms and conditions as will subserve the best interests of all parties in interest. That the claims and pretences of the widow Anne M. Von Hoven to a community interest in the property referred to in her petition be denied, or if said property shall beheld community, then that it and said community be condemned to pay and be subjected to the payment and return of the amount expended therefor and thereon by Jacob Von Hoven out of his-separate estate, namely, the sum of twenty-two thousand dollars,, with interest from judicial demand. That there be judgment in respondent’s favor, against the plaintiff, recognizing respondent to be a creditor of said estate in the sum eight thousand three hundred and thirty-three dollars and thirty-three cents, with legal interest from judicial demand, and that same be paid out of the proceeds-herein to be realized and in the manner pointed out by law. That-the alleged debts claimed by plaintiff to be due by the estate be rejected, or if allowed in any amount, that they be reduced to fair and reasonable figures. That the widow aforesaid be condemned to file a just and true account of the moneys obtained by her from every source from the sales of the property of this succession. That she-be condemned to pay and return the full value to the estate of property wrongfully sold by her as aforesaid. That the valuation of the-items composing the special legacy, to her be inquired into, and that said valuation as fixed in the inventory be increased by the sum of fifteen thousand dollars.

That she be prohibited from disposing of any of the remainder of said property except as the same may be ordered in this proceeding. That she be held liable as a widow intermeddling in the estate. That the overcharged and overvalued items in said inventory be stricken out and reduced to a fair and just estimate, and finally that the court refer all parties to a notary to adjust and partition the-estate on the basis to be fixed by the Court’s judgment and for all1 and general relief.

Subsequently to the filing of the above answer, Mrs. Marie Von Hoven as testamentary executrix and widow in community (under-'benefit of inventory) and Mrs. Englebrecht, filed what they designate as “exceptions” to the demands of Mrs. Louisa Muller, set up in her answer — to so much thereof as she claims to be a creditor in the sum of eight thousand three hundred and thirty three dollars and thirty-three cents.

1. Because she has not presented her claim to the executrix and had it approved, and she can not set it up in this collateral manner, ■but only by a direct action.

2. The rights and interests of the said Louisa Muller in and to the succession of her mother, Margaret Grosz, have been fixed by a final judgment of the Parish Court of Jefferson Parish, liquidating her interest in the said succession eleven years old, that said judgment is res judicaia, and can only be annulled for fraud in a direct action, and her action is prescribed by one, four and ten years, which prescriptions are specially pleaded. To so much of the demands of Louisa Muller as seeks to reduce the particular legacy, that it is premature and can not now be presented in this form and that the demand for an account is premature. No action was sought or obtained on these exceptions. The parties went to trial, evidence was adduced and the case was submitted. The District Court finally rendered a judgment ordering “ that a partition be granted herein and to that end all the real property described in the inventory be sold at public auction with the exception of that which has been bequeathed to the widow, said sale to be made by W. A. Kernagan, auctioneer, who shall sign an act of sale upon the terms of one-third or more cash at purchaser’s option, and the -remainder on credit at one and two years with eight per cent, interest and the usual Security clauses; that the funds arising from said sale be deposited in the judicial depositary and the executrix do immediately thereafter file her account; that the issues not herein disposed of raised by plaintiff and defendant be postponed and reserved, to be tried and decided upon by way of opposition to the account aforesaid.” Mrs. Louisa Muller has appealed suspensively from that judgment. ,

It was admitted in the lower court that the executrix is still in possession of all the property described in the inventory, except that which she has sold under the orders of the Court and that she has' never filed any account.

Appellant’s counsel in his brief says: “The only complaint we make against the judgment which we have appealed from in this ease is briefly that it has not decided the questions raised in the-pleadings and does not protect the appellant and preserve her clear rights under the law.

“ Appellant set up claims against her for their succession and' averred that the legacy to the widow was in excess of the disposable portion. She charged that the inventory was inflated so as to-reduce the apparent value of the legacy to the widow and increase the apparent value of the residuum, inasmuch as it appraised at its-face value five certain lawsuits for damages brought by the decedent? against the Texas & Pacific Railway Company, claiming ten thousand dollars damage for their illegal action in laying its rails and roadway on the public streets upon which decedent’s property abutted. For the purpose of this discussion the other issues raised in the pleadings are pretermitted, as the right to discuss them is reserved in the-judgment after the partition is obtained. On the question of reservation of the right to attack the legacy as being in excess of the legitime we submit that the judgment will not be any protection to the heir, inasmuch as a. suit to reduce the will can not be set up by opposition to the account. . * *■ * The Code seems to require a'direct action to reduce a donation (0. C. 1504 et seqJ). If the judgment appealed from had dismissed as a case of non-suit, the action to-' reduce the will the exigencies of the situation would have been satisfied, but reserving as the judge does the rights of the pleaders to urge these things by way of opposition to the account, it seems to us no protection should an objection be raised by the legatee, or-should she insist that the legacy forms no part of the succession to be accounted for on her account. This is the solitary question presented, and we respectfully submit that the judgment should be reversed and one rendered reserving the heir’s rights to establish by direct action the excessive donation.”

Mrs. Von Hoven, the testamentary executrix and widow in community (the legatee mentioned in the pleadings), and Mrs. Bnglebrecht have both acquiesced in the judgment.

The initial step in the immediate proceeding before us was a petition by the widow of Jacob Von Hoven, who was not only the widow in community with the deceased, but a legatee under his will and his testamentary executrix, in which she was joined by one of the two heirs of Von .Hoven, asking for a sale of so much of the property as was necessary to pay debts, a sale of all tbe residue (not including certain property bequeathed by the deceased to his wife) to effect, a partition and a full and definitive partition between the plaintiffs and Mrs. Muller, the sole remaining heir. This heir, on being made a party, consented to a partition, in fact prayed herself that one should be made. The effect of the proceeding was to group together all parties interested in this succession, the executrix to a certain extent being charged with the settlement and liquidation of the ebtate. The effect of the judge’s order or judgment will be to bring about a sale of all the property of the succession (save that specially bequeathed to the widow), for the double purpose of paying debts- and of leading up to the ascertainment, settlement and liquidation of tbe rights of all concerned. The value of properties will be ascertained by public bids and not by conjectural estimates. The funds realized will be placed securely in bank, and there remain, to-be made primarily available to the extent shown to be necessary for the payment of debts, and finally for purposes of distribution. The account ordered to be filed will afford a direct and proper method-of fixing the exact liability of the estate, and enable Mrs. Muller to contest contradictorily with those whom the testamentary executrix recognizes as creditors, the correctness of that recognition. The reality and amount of their claims could not be passed upon in their absence, and definite knowledge as to their reality and their amount is an important factor in this litigation. The proceedings reach us freed from all trouble as to questions of form, the only exception taken in the lower court having been abandoned, the parties having presented squarely, by their respective pleadings, their various contentions, and having gone to trial upon them. Possibly the case was in a situation to have had determined by the Court more of the issues raised than it thought proper to decide, but we do not think that any of the parties have been or will be aggrieved or injured by this course; on the contrary, when the judge will be called on hereafter to pass upon the issues he will deal with certain matters as fixed facts which now would be more or less matters of conjecture — approximations at best.

We do not understand that the law forcedly requires the District-Judge to dispose, prior to a sale of the property by lieitation, or prior to the rendition of the account by the executor (when the succession is under administration with such a representative), of all the issues which the parties to a partition may raise. The particular course to be pursued will be dependent upon the facts of different eases as they present themselves. What might be proper in one would not be at all proper or advisable in another. In the case at bar, as matters now stand, not only are all the parties in interest before the court on issues raised by each without objection, but all the property left ■ by the deceased is for the purposes of this litigation, still in the hands of the executrix. The record shows no transfer of property to third persons nor the existence of any adverse rights which would be injuriously affected by the form in which matters have shaped themselves. Appellant seems to be apprehensive that the legatee, Mrs. Von Hoven, copld successfully object to the trial of an issue contradictorily with her as to the reduction of her legacy when presented in the form of an opposition to her account as executrix. Even could a legatee make such an objection under circumstances ■different from the present, the widow, as executrix and legatee, certainly could not object, by reason of the form of the proceeding in the present case, for she has acquiesced in the judgment of the court “ postponing ” the determination of the issues not passed on, and directing that they be “tried” and decided upon by way of opposition to the account.

We do not understand the judgment of the lower court to have thrown any of the parties out of court. Matters are to stand as they now are, both as to parties and to pleadings, until the executrix files her account, when all issues which have been raised and have not as yet been passed upon are to be renewed. The only issues disposed of up to the present time are as to the sale of the property of the succession other than that bequeathed to the widow — the right of partition and the necessity and duty of the executrix to account. The judgment contemplates first a sale of the property, and next an account by the executrix, to which the pleadings already filed by Mrs. Muller are to be taken as an anticipated opposition. When the executrix files her account she will have to charge herself with the funds not only arising from the sales now ordered, but those already made of movables under order of court. In addition to this it will be her duty to refer to all property which is placed upon the inventory, and show what has become of it; to state what disposition should be made of that remaining under her understanding of the rights of parties, and to pray that this disposition ■be authorized and ordered. She will have to file a list of the debts and liabilities of the succession, which she recognizes, and have the usual advertisements made under order of Court, calling on all parties in interest to show cause why the account should not be approved and homologated, and the funds and property disposed of as prayed for in the account and petition of the executrix. The account which the executrix will have to file is not simply an account for the payment of creditors, but an account for a settlement of the succession finally and contradictorily with the heirs. They will 'have to be specially made parties and regularly cited in the premises. In the case at bar, the property bequeathed to the widow will have to be referred to in the account and petition of the executrix, and she will have to pray contradictorily with the heirs that it be recognized as hers under the legacy and delivered to her. She will not be at liberty to take possession of that property without orders of Court, or omit it from the account. When cited, Mrs. Muller will unquestionably have the right to “ oppose ” the proposed delivery of the property to the widow and the right to attack the legacy. Art. 1004 of the Code of Practice is express to that effect. It declares, ‘ ‘ If the curator or executor obeys the order and renders his account the heirs or other claimants shall within three days afterward file their written objections, if they have any, signed by themselves or their counsel, to each item of the account to which they object or of which they pray for the rejection.”

In this case Mrs. Muller, on being cited, will be entitled to raise all objections which she may have to anything which has been done by the executrix, or to anything which she proposes should be done through order of Court. Succession of Bright, 38 An. 141; Morris vs. Cain, 35 An. 759; Herber vs. Thompson, 46 An. 186. She will be at liberty either to stand on her pleadings as already filed by mere -reference thereto and annexing them to her opposition, or she may do this and enlarge the present pleadings and prayers, if she chooses so to do. As we have said, the account which will hereafter be filed by the executrix will have a broader scope than the ordinary administrator’s account, involving a mere payment of certain funds to • specified creditors. Succession of Conrad, 45 An. 94. We think the apprehensions of injury which Mrs. Muller refers to in her brief -are totally unfounded. Her right to claim in this case — the reduction of the legacy to the widow on the grounds stated by way ,pf opposition, ■ is undoubted. It is very questionable whether she-¡has as yet fairly raised an issue on that question, for while matters •incidentally connected with and which may have a bearing on that, issue are referred to and relief asked in respect to them, the plaintiff ’s statement that no 11 prayer" has as yet been made for the reduction of the donation is true.

We see no basis for the present appeal.

Judgment affirmed.


author: McEneky, J.

text:
    No. 11,438.
    State of Louisiana vs. J. Herbert Williams.
    In an open, policy of insurance, in which an aggregate amount is expressed, there-are as many contracts of insurance as there are endorsements on the policy of sepárate shipments of goods.
    If the. open policy contains all the conditions which govern the shipment of goods, specially insured under the policy, and the company reserves the right to reject or accept each special insurance in each shipment, the contract must be considered as made at the domicile of the company issuing the openpolicy.
    Under such a policy the insurance comp any, having no agent in Louisiana, it can not be considered as doing an insurance business in the State.
    There is a clear distinction between the business of an insurance agency, and the conducting of an insurance business.
    . A person who takes out policies in a foreign company having no agent here, and which does no business here, can not be made to pay a license which the company would pay if doing business.
    •It is within the power of the Legislature to define what acts of a person, in issuing and procuring the issuance of insurance policies, may constitute him an insurance agent. But after defining his occupation it is not within its power to make him pay a license for a foreign corporation whose business he undertakes.
    ■Tire-Legislature can not appoint by statute an agent for a foreign insurance company, for any purpose as its legally constituted agent, as it is in violation of Art. 238 of the Constitution.
    The riglit to prohibit foreign corporations from doing- business in the State, without complying with Art. 236 of the Constitution carries with it the right to enforce the prohibition by appropriate legislation.
    A PPEAU from the. Oivil District Oonrt, Parish of Orleans. ^ Rightor, J.

      ■ E.-H. MoCaleb, Jr., Attorney for Tax Collector, Plaintiff and Appellant :
    An “open policy” of marine insurance, entered into between defendants and certain foreign insurance companies in New York (not located in this State, as required by Act No. 76 of 1886) contains the following provision:

      “ No risk is to be insured by this policy until a letter is signed by A. B. and addressed to the president of the company, detailing the name of vessel, particulars of shipment, with description of the-property and amount to be insured, is deposited in the postoffi.ee at New Orleans, which must be done while the property is in-good safety, and, in all cases, prior to the departure of the risk, from New Orleans, a duplicate of such letter to be sent by the following mail.”
    There is no risk covered by said open policy until such letter or application is deposited in the postoific'e at New Orleans.
    Upon the mailing of said letter or application, insurance is effected at the port of New Orleans upon the particular shipment detailed in the letter, and such risk is located in this State. These acts constitute “ a carrying on” of an insurance business within Louisiana from which premiums are derived. Art. 1797 et seq., O. C.; Am. and Eng. Ency. of Law, Yol. 3, p. 857.
    A State may exclude foreign corporations, and -the power of exclusion or prohibition is coextensive with the power of regulation by taxation. And it is very common to subject foreign insurance to special police regulations. Liverpool Insurance Company vs. Mass., 1 Wall. 506; Bank of Augusta vs. Earle, 13 Pet! 519; Doyle vs. Insurance Company, 94 U. S. 535; Pierce vs. People, 106 111. 11; Tiedeman on Police Power, p. 592, and. authorities there cited.
    These contracts are performed, consummated and executed in Louisiana, and the business conducted here by a foreign corporation (which has not complied with the State laws), through the assistance, instrumentality and agency of a person' residing in Louisiana.
    Under a revenue law it is competent for the Legislature to define or determine the status and liability to license taxation 'of any person or firm who assists and conducts the business in Louisiana of a foreign insurance company '(not located here as required by the Constitution and law) . And there is no paramount authority upon definitions in legal matters, save that power which can-make both the law and the definition. Pierce vs. People, 106-111. 11; Moses vs. State, 65 Miss. 60; 3 So. Rep. 140.
    It is well settled that revenue laws are to be liberally construed “And they are remedial in character as intended to prevent fraud, suppress public wrong and to promote public good. They should be so construed as to carry oui the intention of the Legislature in passing them, and more effectually accomplish fhese objects.” United States vs. Hodson, 10 Wall. 395; Taylor vs. United States, 3 How. 210; Cliquot’s Champagne, 3 Wall. 145; Wood vs. United States, 16 Pet. 197; United States vs. Breed, 1 Sumn. 159; Cornwall vs. Todd, 38 Conn. 443; Davy vs. Morgan, 56 Barb. 218.
    This proceeding is due process of law. Hagar vs. Reclamation District, 111 U. S. 701; Kelly vs. Pittsburg, 104 U. S. 87; McMillan vs. Anderson, 95 U. S. 37; Davidson vs. New Orleans, 96 U. S. 97; Cincinnati vs. Kentucky, 115 U. S. 321.
    It is not an attempt to. regulate commerce between the States. Crutcher vs. Kentucky, 141 U. S. 59; Paul vs. Virginia, 8 Wall. 168; Fire Association vs. New York, 119 U. S. 110; Doyle vs. Insurance Company, 94 U. S. 535; also citing Mining Company vs. Pennsylvania, 125 U. S. 181.

      Branch K. Miller Attorney for Defendant and Appellee:
    Where a buyer ships cotton from New Orleans to a foreign port, and obtains thereon an open policy of insurance from an underwriter located in another State, the obtaining of such policy being necessary to the carrying on of said business, the latter is an instrument by which foreign commerce is carried on, and the State has no power to tax the business of the underwriter conducted in this manner. 96 U. S. 1, 9; 105 U. S. 489; 121 U. S. 450; 122 U. S. 346: 127 U. S. 640.
    Where an insurance company issues an open policy in New York, where the premiums are paid, and where a loss, if any, is payable, such contract is made and performed out of the State of Louisiana and beyond the reach of its taxing power. The fact that the assured in New Orleans is required to mail therefrom a letter of advice reporting each shipment to be covered by the policy does not have the effect of bringing the contract within the jurisdiction of this State. 31 An. 781; 33 An. 10; 43 An. 113; 27 N. E. Rep. 849.
    Section 7 of Act 150 of 1890, so far as it undertakes to make the assured the agent of his underwriter domiciled in another State, and to make the former personally liable for any license tax claimed to be due by the latter, no such requirement being1 made as to underwriters domiciled in this State, or elsewhere,, when represented by agents in this State, deprives the assured of his property without due process of law, and denies him the-equal protection of the laws and is unconstitutional, null and void, both under the Federal and State Constitutions. 6 Neb. 54; 15 Mass. 447.

      Thomas J. Semmes for same:
    No one denies the power of the State to exclude foreign corporations-from doing business within its limits, if such corporations are not employed by the Federal Government, or are not engaged-in interstate or foreign commerce. No one denies the power of the State to exact from foreign corporations compliance with such conditions as it pleases, for allowing them to do business in the State. The State may punish by penal enactments those who act in any manner as the agents of an unlicensed foreign corporation. 8 So. Rep. 140; 13 Grattan, 767; 118 Pa. 322; 166 111. 11.
    The power to punish is one thing, the power to tax is another.
    A tax is a rate or sum of money assessed on the person or property of a citizen by government for its use. Cooley, Cons. Lim. 587; Topeka case, 20 Wall. 664. The power to tax is the power to impose on the person taxed a personal obligation. 42 An. 1135; 44 An. 279.
    There is no power in the Legislature to make liable for the license-tax, any other person than the person who pursues the occupation. Const., Art. 206. The Legislature may pass penal laws and subject to prosecution and punishment, those who aid others in violating the law, but it can not make one person responsible for the taxes of another person. This the act of 1890'proposes to do.
    This is, indeed, inflicting punishment by legislative act, and in that sense, such an act will amount to a bill of pains and penalties, which is nothing more nor less than a bill of attainder. Ex parte Milligan, 4 Wall. 323; also citing 51 Pa. St. 16, Tyson vs. School Directors; Town vs. Flatbush, 60 N. Y. 406. Opinion Justice 1 Field in Santa Clara Co vs. Pacific R. R., 18 Fed. Rep. 392.
    This Act of 1890 fastens on the citizen a character which he never' assumed, and imposes on him a liability for a tax levied on his supposed principal.

      What makes the matter worse, the acts for which the tax is levied, are illegal, and the illegality can not be removed by legislation, because it is the Constitution which exacts of every foreign corporation,.,as a condition on which it is allowed to do business in the State, that it shall have a place of business here as well as an authorized agent, upon whom process may be served.
    The Legislature can not absolve a foreign corporation from these conditions, or substitute any other kind of agent in lieu of the agent prescribed by the Constitution.
    The Constitution of Georgia granted, certain exemptions to “.the head of a family.”
    The Legislature of that State passed a law declaring that a single person, who at the time of the adoption of the Constitution, or before, lived habitually as a housekeeper to himself, was “ the head of a family,” and as such entitled to the constitutional exemptions.
    The Supreme Court of Georgia held the law to be invalid, because the words “ head of a family,” as used in the Constitution, did not mean a single man who lived by himself, although he kept an establishment with servants, etc. Calhoun vs. McLendon, 42 Gá. 406.
    The Constitution defines a license tax to be a tax on persons pursuing the several trades, professions, vocations or callings, and it is only persons who pursue such vocations or callings, who can be rendered liable to such a tax. This is almost the language of the Constitution, Art. 206.
    The Legislature can not then impose a license tax on an agent, who transacts the business of his principal. The man to whom the business belongs is the man from whom the license tax is to be collected, whether the business is done by himself personally or by others for him. In an “agency business,” the person who conducts it does so for himself and in his own interest. 31 An. 784; 83 An. 18; 40 An. 176; 43 An. 133.
   The opinion of the court was delivered'vby

McEneky, J.

The defendant, is a cotton buyer engaged in .purchasing cotton and shipping it from the port of New Orleans.

The cotton so purchased, is insured in an open policy in the Atlantic Mutual Insurance Company, a foreign corporation having no agent, in the State of Louisiana, appointed as the law requires.

The State Tax Collector proceeded, by rule, against the defendant to compel him to pay, personally, the license which it is alleged is due by said insurance company under the provisions of Sec. 1 of Act 150 of 1890.

This section graduates licenses on each and every insurance company, association, corporation, or other organization or firm or individual doing and conducting an insurance business of any kind * * * whether such company * * * or other organization, firm or individual is located or domiciled here, or operating here through a branch department, resident board, local office, firm, company, or corporation or agency of any kind whatsoever, shall pay a separate and distinct license on said business for each company represented * * * ■on all risks located within the State, and upon risks located in other States or foreign countries upon which no license has been paid. In the proviso to the section, there is a prohibition to any foreign corporation doing business in this State, except through an agent duly Authorized and accredited for the purposes of said business, and for all purposes connected with licenses and taxation and service of process.

The agent is to be appointed by authentic act, a copy of which is to be deposited with the Secretary of State. The proviso further ■states that any person or firm who shall fill up or sign a policy or certificate of insurance, on open marine or fire insurance policy for a ■corporation, association or persons not located or represented in this State shall be considered the agent of such corporation, firm, association or persons, and shall be liable for all taxes, licenses and penalties enforced by the provisions of this act upon such persons, corporation or association, as if represented by a legally appointed agent.

The open policy issued by the Atlantic Mutual Insurance Company is one in which an aggregate amount is expressed in the body of the policy, and the specific amounts and subjects are to be endorsed from time to time in the policy.

There is no dispute as to the fact, that this open policy was consented to in New York, and the policy issued directly from the domicile of the company. It was issued to the defendant, J. Herbert Williams, on account of himself, and to cover cotton in bales purchased and shipped by him, on which drafts are drawn for the purchase, upon whom it may concern.

The amount of the open policy is two hundred thousand dollars,, covering shipments of cotton from 23d September, 1893, to September 23, 1894, “ to ports in Great Britain direct or via New York for transhipment, and to ports on the Continent between Hamburg and Trieste inclusive, direct or via New York for transhipment; including the risk of fire at New Orleans, while in preparation for, or in process of shipment or awaiting shipment, but no fire risk prior to shipment to be covered, unless the vessel is in port loading or ready to load, or until the cotton is discharged from the railroad cars and at the risk of J. Herbert Williams, premium to be paid by the-assured at the rates of this company.

No risk is to be insured by this policy until a letter signed by J. Herbert Williams and addressed to the president of this company, detailing name of vessel, particulars of shipment, with description of the property and amounts to be insured, is deposited in the postofficeat New Orleans, which must be done, while the property is in good safety, in all cases prior to the departure of the risk from New Orleans; a duplicate letter to be sent by the following mail.

A new and separate policy to be issued for each risk, the premium-on which is to be paid in cash upon the delivery of such policy in New York to J. Herbert Williams. Risks endorsed hereon and subsequently taken off and new and separate policies issued, not to exhaust this policy.

. “ The said goods and merchandise hereby insured are valued, including premiums, at the sums expressed in the letter of advice as provided for herein, but not to exceed the invoice cost and ten per cent.” The policy .requires the notice, or application as it is called' in the testimqny, -to be mailed prior to the shipment, and on its receipt the company has a right to accept or reject the application for insurance on the particular shipment. We presume the.notice is required to inform the company whether or no the conditions pre; scribed by the policy, previously issued in New York, have been complied with. The policy required the premium on the insurance-of any particular shipment of cotton, to be paid on the presentation of the invoice or bill of lading and notice of shipment. The defendant, in pursuance of the terms of the policy, makes an application through his broker in New York, to insure prior to the shipment of' the cotton. His broker pays the insurance.

In the ease of Douville vs. Insurance Company, 12 An. 259, this Court interpreted an open policy similar in all essentials to the one under consideration.

In that case the plaintiff had failed to furnish the defendant company with an invoice of goods, purchased in Paris, which were lost under an open policy.

This Court said, <f On a policy of insurance in this form, there must necessarily exist as many contracts of insurance as there are, endorsements upon the policy of separate shipments of goods. The ■delivery of the policy four years previously did not constitute a contract of insurance upon goods which might be shipped by the Arctic. -Something more was required, viz.: Consent on the part of the plaintiff, a production of her invoices and the payment of the premium on her behalf, and a communication of the unusual manner in which these goods were intended to be brought over, viz., in the •trunks of a partner and an employé of the house, as baggage; and, on behalf of the company, an agreement to take the risk in this form.” The principle announced here will govern this ease. The •company, by the terms of the policy, had the right to have notice of the mode of shipment, and it could accept the policy or reject it if the shipment was by unusual methods, and incurred extra and hazardous risks. The open policy in this case is even stronger in favor of the separate contracts of insurance being completed in the State of New York, by the acceptance of the company, or it would be more accurate to say that each shipment of cotton and the insurance thereon, is part and parcel of the original contract of insurance, as it must be referred to the open policy for construction and interpretation. In that policy is found all the conditions for each separate shipment and insurance of cotton covered by the open policy. In the separate contracts or shipments there is no agreement or condition that is not found in the open policy.

While the open policy is a separate insurance on each shipment of cotton, and the risk is to commence, as stated in the policy, from its loading on shipboard, or awaiting shipment, this is only one incident of the contract, material and important, but does not control the fact as to the place of making the contract. This is to be determined by the final assent to it, when it becomes complete and perfect.

To illustrate: Suppose a resident of New York City takes out a policy of insurance on property owned by him in New Orleans, and the agreement is that the risk is to commence instantly on the issuing of the policy. The entire contract having been made in New York, the assent having been given there and the contract completed,, the risk is only an agreement or stipulation in the contract. So that the stipulation in the open policy, that the risk is to commence from-a certain time in New Orleans, does not make the contract a Louisiana contract.

The original policy and the special insurances effected under it, are New York contracts, as the policies were issued from the domicile of the foreign corporation and assented to there. Claflin vs. Meyer, 41 An. 1048. We have decided that a foreign insurance company, which issues policies directly from its .domicile, who has no agent here, and who only agrees to accept risks placed for them by a person residing here, can not be compelled to pay a license. New Orleans vs. Rhenish Lloyds, 31 An. 781.

The Atlantic Mutual Insuranoe Company, not having done any business in this State, the defendant can not, even under the pro - visions of Act 150 of 1890, Sec. 7, be considered as its agent.

That part of Sec. 7 of Act 150 of 1890, quoted above, constitutes, the person making these special contracts of insurance, under an-open policy, the agent of the company, as though he had been duly appointed by law. If snoh is the effect of the act, and the agent thus appointed becomes the agent of the company, upon what principle can he be made personally liable for the debt of the principal ?

“A clear distinction exists in law as well as in fact, and must be observed by courts, between the business of an insurance agent and that of a person or firm or corporation, conducting or doing an insur- • anee business.” State vs. Woods, 40 An. 175; 31 An. 781; 33 An. 11.

If the defendant is liable at all, it is because of his agency for an insurance company domiciled out of .the State.

We think it is within the power of the General Assembly to declare what acts of a party in issuing, or procuring the issuing of insurance policies may constitute him an insurance agent, and subject him to the license required of such agents. But after defining his occupation it is not within its power to make him personally liable-for the license of a foreign corporation whose business he undertakes. The business of an insurance agent is a separate and individual industry or occupation and only taxable as such. 31 An. 781.

In the case of State vs. Woods, 40 An. 177, this Oourt said: “ The attempt of the State, by means of this proceeding, is to make them personally liable for the license which is contemplated for the companies or corporations which they represent, and to subject their own property to the privilege, created in favor of the State, against the property of the parties who may owe the license provided by the-statute.

“Such a proposition - finds no sanction in reason or justice, and much less in the very law under which the proceeding has been instituted.” '

In that case the proceedings were instituted against certain insur-' anee agents to make them liable for licenses for' conducting an insurance business. The licenses exacted were for the amount of business done by the corporations in this State which they represented.

The suit was instituted under the provisions of Act 101, Sec. 7, of 1886, which are identical with those of Act 150 of 1890, Sec. 7, except the proviso in the latter act. The present proceedings in effect-are the same, as in that suit, to make the agent responsible as one who conducts an insurance business. . No law can make a person answerable for a debt which he does not owe. The defendant does not do an insurance business, and he can not be made to pay a license for that occupation. The Constitution, Art. 236, requires the-foreign corporation, which desires to do a business in this State, to appoint its own agent, therefore the Legislature can not appoint one for it.

It is safe to say that the Legislature can not appoint an agent for an insurance company to represent said company, for any particular purpose, as its legally appointed agent in violation of Art. 236 of the Constitution. We do not mean to be understood that the Legislature can not designate persons who transact the business of a corporation domiciled out of the State, and having no agent here-as proper persons upon whom process may be served. Nor do we wish to be understood to announce, that the State is powerless to prevent the evil attempted to be suppressed by Sec. 7 of Act 150 of 1890.

The right to prohibit foreign corporations from doing business in the State, unless they comply with its regulations, can not be denied, and this right carries with it the power to enforce the prohibition by appropriate legislation. Moses vs. State, 3 So. Rep. 140.

The State can, therefore, prohibit its own citizens from conducting the business of taking out an open policy covering special contracts of insurance in a foreign insurance company, which has not complied with constitutional and statutory regulations, as it has the exclusive right, by virtue of its sovereignty, to regulate the conditions, capacity and state of all persons within it; the validity of contracts and other acts done within its limits; the resulting rights and duties growing out of those contracts and acts, and the remedies and modes ■of enforcing justice, and subjection to its will. Story Oonf. Laws, paragraph 18.

Judgment affirmed.


author: Watkins, J.

text:
    No. 11,552.
    State ex rel. Samuel J. Zeigler vs. S. L. Taylor, Judge of the First Judicial District, Parish of Caddo.
    A judgment which may be provisionally executed, notwithstanding an appeal has been taken therefrom, is not susceptible of a suspensive appeal.
    That proposition involves a contradiction in terms.
    ^I^PPLICATION for Mandamus.

      Land <& Land Attorneys for the Relator :
    It is submitted that the question of a suspensive appeal from a judgment ordering a cession of property,' etc., pursuant to Act 134 of 1888 is res nova.

    'The appointment of a provisional syndic is but an incident or sequence of the decree, and to say that because a suspensive appeal will not lie from such an appointment, ergo, such an appeal will not lie from the decree of cession, is a non-sequitur.

    'That a suspensive appeal does not lie from a decree for a forced cession is well settled. 34 An. 130; 36 An. 198.
    Act 580, O. P., applies only to eases involving contests for administration, and not to cases where the question is as to necessity of any administration at all. 22 An. 23; 26 An. 122.
    The appointment of a provisional syndic presupposes that the question of surrender, vel non, has been finally adjudicated. R. S. 1792, 1783. The reversal of the decree of bankruptcy, on a devolutive appeal, would nullify all proceedings had and create confusion and uncertainty in the administration of the law.

      Respondent Judge in propria persona.

   The opinion of the court was delivered by

Watkins, J.

The object of this application is to coerce respondent to grant relator a suspensive appeal, grounded on the judgment and decree in the proceedings in the court of the respondent, which are thus described in the relator’s petition, viz.:

That in certain proceedings, in respondent’s court, in December, 1892, relator obtained judgment granting him a respite of one and two years.

That recently several persons, claiming to be creditors of his, obtained rules against him, under the provisions of Act 134 of 1888, in which they aver his failure to make payments to them in conformity to the terms of said respite, and pray that he show cause why the judgment decreeing such respite should not be vacated and annulled, and why he should not forthwith make a cession of his property to his creditors.

That in his answer to said rules he set up, inter alios, the unconstitutionality of the Act of 1888.

That on trial of said rules judgments were rendered making same absolute, and decreeing that the judgment granting the respite be vacated and annulled; that he forthwith make a cession of his property to his creditors, and that a provisional syndic be at once appointed, and the clerk of court be directed and required to convoke a meeting of his creditors.

That immediately thereafter — on the following day — he applied to the respondent for an order of appeal, suspensive and devolutive, made returnable to this Court according to law, the amount in dispute as well as the fund to be distributed exceeding two thousand dollars.

That the respondent declined his application, making thereon the following endorsement, viz.:

“I decline to grant a suspensive appeal from the judgment rendered in this case on the authority of the case of State ex rel, Levy & Son vs. .Ellis, Judge, 40 An. 818, but am willing to grant a .devolutive appeal.”

The respondent’s return is in substance, the same as the aforesaid endorsement. .

An examination of our opinion 'in the • Levy case discloses its complete analogy to the case under consideration in every essential particular, and a close observance of the terms and provisions of Act 134 of 1888. . ■

,. ..The object.of that statute was evidently to speed the liquidation .and settlement of estates of insolvents, and if they are to be halted •or impeded by suspensive appeals the remedy would be practically valueless.

The act provides that in case the respited debtor shall fail or neglect to make payment according to the terms of his respite, any creditor may proceed against him summarily by rule, to have hisresspite vacated and annulled, and to compel him to make a cession of his property to his creditors.

. And it further provides that the Court in making such rule abso- • lute shall appoint a provisional syndic and order a meeting of credi/tors.

That is precisely what the respondent has done, and the question is, whether or not the debtor is entitled to suspensively appeal from •said judgment.

According to the opinion of this Court in State ex rel. Levy v.s. Ellis, Judge, sucha judgment belongs to the class of judgments which áre provisionally executed, although an appeal has been taken. The Code of Practice distinctly provides that judgments relating to the appointment of syndics are of that class. C. P. 580; R. C. C. 3093; Act 134 of 1888.

It is evident that the decision of the Court in that case is correct, and for that reason the relief prayed for by the relator must be denied. Vide State ex rel. Marx vs. Judge, 45 An. 1349, giving a Construction to Act 134 of 1888.

It. is, therefore ordered, and decreed that the restraining order herein made in limine, be rescinded, and that the applications for .-writs of. prohibition and .mandamus .be refused, at relator’s-cost. •

Rehearing refused.