text:
    No. 10,721.
    Mrs. Mary Cline, Individually and as Tutrix, vs. Crescent City Railroad Company and City of New Orleans.
    A municipal corporation vested by law with control over its streets, is bound to keep the same in good order and condition, sufficiently safe to prevent injury to travellers thereon.
    It may grant to a railroad company the privilege of building its tracks and running its cars thereon, with the obligation of keeping them in proper order and condition.
    Such grant does not, however, exonerate the city from the duty which it is bound primarily to fill.
    Independent of its contract, such railroad company is bound to keep its own road, tracks and rails in proper condition and order.
    Travellers on the streets have a right to use the tracks of the company and are not trespassers.
    A party using due care and diligence when using such street and tracks, has a right to recover from the railx’oad company for injury inflicted by its gross fault and negligence, where the cause is proximate.
    A railroad company which neglects to keep its l'oad and tracks in good condition is liable to a pax*ty injured by a fallón a loose rail and protruding spike, in consequence of which his skull is fractured or perforated and death ensues.
    The failure of a municipal corporation to keep its stx*eets in good order and condition where the cause of the injury is not proximate, does not make it responsible in damages to the sufferer.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

    B. B. Forman for Plaintiff and Appellee:
    1. It is the legal duty of the Oity of NewOxdeans to keep its streets in repair, Act 20, 1882, Secs. 7 and 86, pp. 20 and 30, and is liable in damage to aperson injured by a dangerous place in a public street. O’Neil vs. New Orleans, 30 An. 229; Eennimore vs. New Orleans, 20 An. 124; Dillon, Vol. 2, Secs. 788 and 789; Cline vs. Crescent City Railroad Company, 41 An. 1041;-Barnes vs. District of Columbia, 91 17. S. 540; Everston vs. Gunn, 99 17. S. 660; Cleveland vs. King, 132 17. S. 295.
    2. It is the legal duty of a street railway company, traversing with its tracks and cars the public streets of a city, to keep its rails, tracks, the space between the rails and contiguous thereto in good order and repair and safe so as not to obstruct or render dangerous the fx*ee use of the street, and is liable to damages to a person injured by a breach of that duty. Domingues vs. New Ox'leans Railroad Company, 35 An. 751; Cline vs. Cx*escent City Railroad Company, 41 An. 1041.
    3. In assessing damages where there is gross negligence and a flagrant oreacli of public duty, it is proper to blend the interest of society and of the injured individual, and to allow such damages as would not only fully compensate the injured person for his injux*ies, his pain and his sufferings,but also such as would prevent a repetition and serve as a warning. Black vs. R. R. Co., 10 An. 40.
    Merely compensatory damages allowed in following cases: Choppin vs. R. R. Co., 17 An. 19, loss of a leg, $25,000; Summers vs. R. R Co., 34 An. 189, broken elbow, $7500; Ketcbum vs. R. R. Co., 38 An. 777, loss of arm, $10,000; AYardle vs R. R. Co., 35 An. 202, shock to spine, $5000; Peniston vs. R. R. Co., 34 An. 778, broken leg, $6000; Barksdell vs. R. R. Co., 23 An. 180, loss both legs, $15,000; Domingues vs. R. R. Co., 35 An. 751, bruises, $1500; Spring Co. vs. Edgar, 99 U. S. 645, bruises, $6500; City of Panama, 101 U. S. 453, broken arm, $15,000; R. R. Co. vs. Gladman, 15 AArall. 401, $9000; R. It. Co. vs. Stout, 17 AYall. 657, injured foot, $7500; R. R. Co. vs. Herbert, 116 U. S. 642, loss of leg, $10,000; R. R. Co. vs. Mares, 123 U. S. 710, loss of both legs, $20,000; Miller vs. I-Ierves, 1 AYoods 363, broken ribs, $8000; R. R. Co. vs. Drysdale, 51 Ga. 644, broken arm, $3000; Westerville vs. Freeman, 66 Ind. 255,broken hip, $2000; R. R. Co. vs. Donahue, 70 Pa. 119 loss of toes, $5,216.66; Campbell vs. Portland, 62 Maine 552, $9,500.

      John M. Bonner and Farrar, Jonas & Kruttsehnitt, for the Railroad ■Company, Defendant and Appellant:
    1. The answer of a defendant containing- a prayer for a judgment against a co-defendant, that was not served on the co-defendant and not answered-by the co-defendant, does not raise any legal issue between them in the suit.
    2. AVhere two defendants have been joined in a suit, one of them, without being cited or regularly called in warranty by the other, is not bound even to read the answer of its co-defendant. C. P., Art 383.
    3. Where two defendants, whose liability arises from different sources, have been united in the same suit, they have a right to sever in their defences, and ask lor separate trials, and this right to a separate trial can not be legally refused when timely asked for. 38 An. 186; 39 An. 1030; 40 An. 417; 41 An. 1041.
    4. An ordinance of the city, proscribing the maximum loads to be hauled over the streets, in force when a contract is made with the city to keep certain streets in repair, forms a part of the obligation of the contract and should be received in evidence.

      (a) “A party is always considered as binding himself in accordance with the laws that may in any way affect his contract.” 12 An. 720; 18 An. 90; Hen. Dig. 1014 VI. a.

      ■(b) “ The obligation of a contract consists in its binding force on the party who makes it. This depends upon the laws in existence when it is made; these are necessarily referred to in all contracts, and forming' a part of them, as the measure of the obligation to perform them by the one party, and the right acquired by the other.” Cooley Con. Lim., 4th Ed. 348 : 2How.612; 107U.S. 775.
    5. One Avho directly commits an act that is the cause of damage to another must answer for it. 35 An. 752.
    6. When a contract specifically embodies the remedy to be used in its enforcement, this becomes the law of the contract and by implication excludes all other remedies.
    “The remedy and the liability were created by the same statute. This being so, the remedy provided is exclusive of all others.” 20 AYall. 526, 527.
    “ Where a statute creates a right or liability and prescribes the remedy, the remedy prescribed is exclusive, and must be strictly pursued.” 120 U. S. 783.
    So where a contract does not impose an unlimited obligation, but specifically defines the extent of the liability, this limitation is a necessary part' of the contract and can not be ignored in its interpretation.

      “Agreements legally entered into have the effect of laws on those who have formed them.”
    They can not be revoked unless by mutual consent of the parties or for causes acknowledged by law.
    They must be performed in good faith. R. C. C.,'Art. 1901 and Art. 1945.
    7. There is no law of this State that authorizes a municipal corporation to let out the repair of its streets and makes it the duty of the contractor to comply with his undertaking.
    The existence of such a statute is indispensable to give a third person a right of action for the breach of the public duty thus imposed or assumed. Sher. and Red. on Neg., Secs. 345 and 353; Phillips vs. The Commonwealth, 44 Pa. St. 197; Robinson vs. Chamberlain, 84 N. Y. 989; Fulton vs. Baldwin, 37 N. Y. 648.
    In the absence of such a statute a contract made with a municipal corporation is a simple contract, like any other business contract, and should be so construed. Loeber et al. vs. N. O. & Car. R. R. Co., 41 An. 1151; Schwartz vs. Flatboats, 14 An-244; Nickerson vs. Bridgeport Hydraulic Company, 33 An. R. II., and note; Ferris vs. Carson Water Co., The Reporter, Yol. XII, 90.
    Under both the common and the civil law, an agent is personally responsible for doing something he ought not to have done, but not for not doing something which he ought to have done.
    For non-feasance or mere neglect in the performance of a contract obligation, the agent is responsible to his principal alone. Delaney vs. Bochero, 34 An» 1128; Thomp. on Neg., Yol. I, 237.
    8. The facts disclose a clear case of contributory negligence.
    In order to recover, it must appear that the party injured “ was using reasonable and ordinary care to avoid the accident.” Dil. on Mun Corp. 3d Kd., Sec» 1020; 81 111. 300; 51 Yt. 131; 84 111. 82; 52 111. 270; 33 Ohio St. 246; 42 An. 546.
    “If the party injured knew of the defect or obstruction and ought reasonably to have avoided it, and did not, he can not recover.” Dil. on Mun, Oorp., Sec. 1026; 61 Barb 437; 33 Ohio St. 246; 8 Allen 137; 42 An. 546.
    “A city is not liable to one who sustains an injury by reason of defective streets, if by looking, the injury could have been avoided, and no excuse is given for failure to look.” 17 Md. 324; 22 N. R. R. 235; 42 An. 546.
    The burden of proving due care is on the plaintiff. 12 Pick. 176; 32 Me. 46,574; 4 Gray, 178, 395, 367; 7 Gray 100; 6 Iowa 443.
    9. The damages suffered hy the deceased arise from the mental and physical pain endured between the time of his fall and his death — where death was instantaneous and arose from a fractured skull, there could he no conscious pain or suffering, and damages should not exceed a nominal sum.
    The Act 71 of the Acts of 1884, amending Art. 2315, R. O. C , so as to give an action for the damages suffered by the survivors mentioned in said article, is patterned after Lord Campbell’s act and similar damage acts, existing in other States, and should he construed in the same way those acts have been construed.
    The damages suffered in such cases are limited and restricted to the actual pecuniary loss occasioned by the death. . ,
    “ No compensation can be given for wounded feelings, or the loss of comfort and companionship of a relative.” Thompson on Neg. 1289, Sec. 90; Patterson Railway Accident Law, p. 486, and Sees. 406. 410, 411; Rorer on Railroads, Vol II* 1167; Wood’s Railway, Yol. Ill, p. 1536, Sec. 414.
    ‘Damages, based on pecuniary loss, being susceptible of easy estimation, courts do not hesitate to set aside verdicts for excessive amounts. Thompson on Neg., 1292; Wood on Railway, 1539.

      Carleton Hunt for the City of New Orleans, Defendant and Ap-' pellant:
    Where it is admitted that the City oí New Orleans never had placed at its disposal the requisite means for beeping the streets in repair or in order, as required by the charter, and has never had the funds required for drainage, it is not liable in a suit for damages alleged to be partly due to the bad condition of the streets.
    In an action sounding in damages against two debtors sued for a joint offence, it is well settled, where the parties are not in pari delicto, that the principal delinquent only is responsible. Potheir on Obligations, p. 282 ; 23 Pieltoring 33; 11 Mass. 377; 22 Picbering 181; 5 Gray 350; 51 N. Y. Rep. 244.
    In such case, respondeat superior is too loose and large a maxim and recourse must be had to principles.
    Where the efficient cause of death is caused by the neglect of one of two parties who are used in solido, and there is practically no connection with the other party sought to be held, judgment must be rendered against the party in fault.
    Where all parties are before the court, justice will be rendered as to all. The law abhors a multiplicity of actions. C. P. 382; 41 An. 1040.
    The ease at bar is covered by the facts as well as by the reasoning of the court in Dominguez vs. Orleans R. R. Co., 35 An. 471.
   The opinion of the court was delivered by

Bermudez, C. J.

This is a suit in damages, alleged to have been sustained in consóquence of the death cf the husband of plaintiff and father of her minor daughter, occasioned by the gross fault and negligence of the defendants, who are sought to lie held liable in solido.

The case was once before this court, 41 An. 1031, on exceptions by the railroad company, which had been maintained below but which were overruled on appeal, the case being remanded for further proceedings.

The fundamental averment is:

That, on January 21, 1889, John Oline, husband and father aforesaid, was driving a vehicle gently on Calliope street, between St. Charles avenue and Prytania street, in this city, with due care and caution, without any negligence on his part, ignorant of the dangerous condition of that street, when the right fore-wheel of his wagon got into a deep hole by the side of the track of the railroad company, ran into a loose rail, was suddenly and unexpectedly stopped thereby ; that by the shock thus occasioned Cline was violently thrown from the vehicle against the loose rail and against a spike protruding therefrom; the fall resulting in the fracture of his skull and in his consequent death, after suffering great agony of pain in body and mind.

It is specially charged that this condition of the street was well known to the officers of both defendants and especially the railroad company, or if not known, could with reasonable diligence have been known, and the danger averted had they done their duty before the happening of the accident.

The prayer is for $30,000 damages.

The railroad company excepted, but its objections were disposed of as has already been stated.

The city pleaded the general issue and averred a contract with the railroad company whereby it had agreed to keep the streets on which it passed in proper condition and order, and that, were judgment rendered against the city, it should recover a like judgment against the railroad company, which was thereby called in warranty but on whom no service was made.

The railroad company answered by a general denial also, pleading-that the plaintiff was no party to the contract alleged by the city and can not sue under it and that said contract contains the remedy agreed on, in case of violation, which is exclusive of all others, namely, coercion to specific performance by the city.

It further avers that its railway was properly constructed; that since then it was, on Calliope street, put out of order by improper-drainage and consequent accumulation of water; that another cause of the condition in which it was put is the constant heavy traffic through that street and the illegal loads hauled over it; all of which made it impossible to keep said street in better condition, and that, the condition in which it was on the day of the alleged accident was not due to any fault or omission of this defendant.

The case was tried by a jury who returned a verdict for $7500 against both defendants, with a reserve of the rights of the defendants as against each other. Judgment was accordingly rendered.

Hence, this appeal by both defendants..

' The circumstances of the accident may be considered as having been substantially proved; but has the evidence established that the City of New Orleans and the railroad company are equally liable and that even in default, the plaintiff himself is not guilty of contributory negligence, sufficient to defeat his right of action against both or either of the defendants.

The law governing a case of this description and the principles upon which it rests are plain enough; but it is not always easy to .apply them to occurring cases which generally differ in some significant matter of detail.

The testimony is ordinarily conflicting and such that it is difficult to arrive at the real facts in dispute.

In the present instance the law and principles have been, to a considerable extent, expounded, when the case came up on the exceptions ; but the averments of the petition were taken for true in ■dealing with the preliminary defences; and had the iplaintiff established on the trial, after the remanding of the case, all the facts averred, full recovery could have taken place, leaving out of view in this statement the quantum of damages.

There can be no doubt that a city is under the obligation of keeping its streets, sidewalks, etc., in good order of repair, so at least as to prevent serious accident or injury to persons using the same or to their property; and that, where such happen by the heedlessness or fault of the corporation having previous knowledge of the bad condition of the street, sidewalk, or particular dangerous spot, and without any contributive act, whether by commission or omission of the party afflicted, the corporation can be held to repair the damage ■occasioned.

It is also well settled in law and jurisprudence that although a municipal corporation, by virtue of the right with which it is vested of control over its streets, can legitimately grant to a railway company the privilege to build its track and run its cars on the same, imposing upon it the burden of keeping them, from curb to curb or rail to rail, in good order and condition so as to prevent injury, as it is itself bound to do, the concession of the grant and the imposition and acceptance of the burden do not relieve the corporation from liability should the company fail to comply- with its obligations, and by its negligence and default, inflict injury to one using due care and precaution and not guilty of contributory neglect.

It is also well recognized that a party injured has a double action ¡against both the city and the railroad company regardless of the •contract between them, holding each as primarily responsible, and ■that when the city is muletea it has the right to recover against the railroad company in the same action, if both are defendants and the city has properly brought in the railroad company by a call in warranty, or a distinct suit.

It is likewise firmly established that an injured party in order to recover must be shown not to have been guilty of any contributory negligence, that is, the careless commission or omission of acts which, if prudently done or not done, would have avoided the occurrence of the injury occasioned by the heedlessness of another and which is considered as the proximate cause of the accident.

The evidence in this case establishes the stubborn facts of the existence of the hole, of the loose rail and protruding spike on the side, the fall of the man, the fracture of his skull on the ráil and spikes and his consequent destruction and death.

Certainly, there are three parties to this accident who may be. charged with negligence.

As against the driver, it is claimed that the hole was visible, as it was foux- feet long, two feet deep and four inches wide, and it was about 3 o’clock p. m. when the wheel of his wagon got into it; that he must have seen it and should have seen it; that if he did not see it, it was because he did not do his duty in looking forward; that if he saw it he should have avoided it by stopping in time and taking a different course; that if he did not see it it was his own fault; that he was guilty of contributory negligence, and that his representatives have no right to complain and seek indemnity through him.

As against the city, it is urged that it was bound to keep its streets, in good order and condition; that had it done so the hole would never have existed, or would have been stopped in time and the accident would not have happened; that its defence of penury is bad and that its contract with the railroad company did not exonerate it from the obligation.

As against the railroad company, it is pressed that it was bound to keep in like good order and condition the streets through which it ran its tracks and cars, whether under the contract, or independent of any agreement to that end; that surely it was bound to keep its tracks, rails, and spikes, designed to fasten the same down, so that no injury could be produced thereby to any traveller on the streets, although using the same with more or less usual inattention, and that if the condition of the loose rail and protruding spikes be the proximate cause of the death, it is liable in damages.

It can not be reasonably supposed that the driver knew of the condition of the hole, saw it and intentionally ran the fore right wheel of his wagon into it. The size and appearance of the hole were not such as unnecessarily and unavoidably must have provoked attention. The hole-was such as anyone driving on the track may not have noticed. The deceased had a'right t.o drive on the track. The right of way, or franchise, conceded by the city to the railroad company, did not deprive the deceased, or anyone else, running vehicles on the street, from the right of using any part of the street, or the track itself. There was no trespass.

But even if the driver had seen the hole and had not avoided it nothing shows that he knew of its dangerous character. Could he be really charged with negligence, it would not be with that sort of negligence technically known as contributory, which is the commission or! omission by the party of an act amounting to a want of ordinary care as concurring or cooperating with the negligent act of another and which is the proximate cause or occasion of the injury complained of. To constitute contributory negligence there must be a want of ordinary care and a proximate connection between that and the injury. Beach on Const. Neg. 7.

No doubt the city was in default. The hole had been in the condition known for more than two weeks. Accidents had occurred, but which had produced no grave injury worth being judicially complained of. The city must be considered as having had notice of the condition of the hole and it is no excuse for it to plead penury, or shift the responsibility on the railroad company so as to avoid liability. The city should have notified the company; but primarily, it was bound to put the hole in a condition not to be dangerous. It should be blamed for not having so done.

Nevertheless, the heedlessness of the city in the premises, however censurable, does not fasten upon it the responsibility in damages sought to be saddled upon it.

The falling of the right fore wheel of the wagon into the hole caused a shock; that shock dashed the driver from the vehicle and he was flung with some violence. The evidence shows that several other travellers on the street and on the track had met with similar accident, had been thrown from their carts on the pavement, but none were killed or dangerously hurt. The unfortunate fellows were more or less bruised and that was all, although much in itself to some extent.

In the present instance the driver would have sustained no further injury had it not been that a condition of things existed at the time which did not exist previously, when the other accidents occurred. The city is not sued now for the suffering which the driver sustained in consequence of bruises inflicted by the fall. It is sued for damage suffered in consequence of the death of the driver, and the fact is that the city is not guilty of any negligence which was the proximate or direct cause of that catastrophy.

The responsibility must rest on other shoulders. The defences announced of the railroad company have no bottom to stand upon. Conceding all the facts averred, which would seem to tend to show a condition of things amounting somewhat to vis major or uncontrollable circumstances, the railroad company can not be heard to say that they were of such a character as to prevent it from stopping the hole and preventing it from being dangerous, from nailing down securely the loose rail and fastening steadily the protruding spikes. The plaintiff could sue independent of any contract between the city and the company.

Though true it be, that the hole was somewhat dangerous and was the cause of the shock which occasioned the fall, the certainty is, that but for the loose rail and protruding spikes the traveller would not have met with an untimely and sudden death. He would have fallen, would have received some bruises, for indemnifying which he would not probably have sued either the city or the company; but he would not have been hilled!

The cause, eausa causans, of the death was the violent coming in contact of the skull of the deceased with the loose rail and the protruding spikes, in consequence of which the skull was fractured, or perforated, with almost instantaneous death as the result.

If, under the facts and the law, this railroad company can not be held responsible, but must be excuse 3, what is the case in which a company can be held liable for omissions of duty which are the direct cause of irreparable calamity?

In the consideration of this case and the law and jurisprudence applicable to it, we have consulted with advantage a new work, just issued, on “Roads and Streets,” by Elliott, which is quite commendable.

It is very difficult to compute the damages to which the plaintiff, in her own right and as tutrix, is entitled for the loss sustained by the death of the husband and father.

When she opened his estate she produced the certificate of the coroner to prove.the death, and she established from it that he was 62 years of age.

It is claimed that according to' the life insurance time tables he would probably have lived twelve years more, and it is insisted that his earnings during that time would have amounted to a considerable sum, and that this amount at least should be recovered in this action.

It may be, and it may not be, that the party would have lived that time. He might have died the next day, the next month, the next year, by disease, or some accident, or some other unforeseen cause.

His earnings were small. The evidence in that respect is entirely unsatisfactory and unreasonable. The fact is that he was a wagon driver doing jobs; but he had to provide for a stable and shed for his horse and wagon, for feed for the animal; he had to supply his own wants. If he earned $1.50 or $2 a day he could have saved very little to provide for his wife and daughter, who it is to be presumed, owing to their age and condition in life, must have been able to support themselves to some extent.

It is extremely doubtful that the earnings of the poor man could have amounted in the end to $1000, but to avoid doing his representatives any injury, we will allow that sum, thinking it ample.

It is therefore ordered and decreed that the verdict of the jury and the judgment thereon as regards the Oity of New Orleans be quashed and reversed, and that there be judgment in favor of the city, with costs in both courts; and it is further ordered and adjudged that the verdict' and judgment thereon against the railroad company be amended so as to reduce the amount to $1000, with interest as allowed and costs below, and that thus amended, said judgment be affirmed at appellee’s costs.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 10,779.
    H. C. Minor vs. Oscar Daspit, Sheriff. H. Cage et al. vs. Oscar Daspit, Sheriff.
    ( Consolidated.)
    1. Former decisions as to the constitutionality oí Levee District acts affirmed.
    2. The legislative judgment defining the persons and property which are benefited by a proposed public improvement, and which' shall pay the contributions exacted therefor, can not be judicially overruled without conclusive showing that, either by mistake or intention, it has imposed a contribution unsupported by any possible benefit, or out of all proportion to the possible benefit.
    3. It does not avail to show that particular persons or property are loss benefited than others; it is impossible to make a distribution of contributions in proportion to benefits.
    4. The evidence in this ease does not establish that plaintiffs’ property derives no benefit from the levee system.
    APPEAL from the Nineteenth District Court, Parish of Terrebonne. Allen, J.

      L. F. Suthon;' W. S. Benedict and H. C. Gage for Plaintiffs and Appellants:
    1. The 10-mill tax provived for in Article 214 of the Constitution of 1879, is in itself a local assessment.
    2. Without Article 214 the power of the Legislature to enact Act 97 of 1890 would have been ample.
    3. As Article 214 is entirely unnecessary, as an enabling provision, its sole object was to restrict the power of local assessment, which without it was practically unlimited.
    4. Article 214 providing the method in which local assessments can be made for levee purposes, the taxes in excess of the 10 mills are unconstitutional.
    5. The lands of the Ranch plantation are not subject to overflow, and derive no benefit or advantage from levees.
    6. Deriving no benefit or advantage from levees, they are not subject to local assessment for the purpose of building levees, and the exaction thereof is taking private property for public purposes, forbidden by the law of local assess ment, the Constitution of the State of Louisiana and of the United States.
    O. O. Provosty for Defendant and Appellee. '
   The opinion of the court was delivered by

Fenner, J.

These cases are injunction proceedings to restrain the sheriff from enforcing or collecting certain taxes, assessments- and forced contributions levied on the property of plaintiffs by the Board of Commissioners of the Atchafalaya Basin Levee District under the authority of Act No. 97, of the General Assembly of 1890.

It is not pretended that the commissioners have not proceeded in full conformity with the powers conferred upon them by the legislative act above mentioned; or the sheriff is, in any manner, departing from the line of his duty as defined by said act.

The grounds of injunction are charges assailing the constitutionality of the act and the validity of taxes and the contributions exacted thereunder.

There must be an end to judicial discussion, even of constitutional questions. We have recently had occasion, in a very elaborate opinion, to discuss and dispose of all the constitutional objections now urged against this very act. Munson vs. Board of Commision.ers. Ante page-.

We had previously rendered several decisions to the same effect' in regard to similar acts. Planting Co. vs. Tax Collector, 39 An. 456; Charnock vs. Levee Co. 38 An. 325; Board vs. Lorio Bros., 33 An. 276.

Nothing has been said to shake our firm conviction of the correctness of those decisions; and we content ourselves with referring to them as fully answering all the objections to the constitutionality of this legislation.

There is, however, one ground for the injunction in one of the cases which- is new and requires consideration. This is the following, viz: That the particular land of the plaintiff is subject to overflow, and is not protected by the levees built or proposed to be built; that it requires no such protection and can derive no possible benefit or advantage from the levees, and that, therefore, the assessments are a taking of private property for public purposes without compensation.

We have, theretofore, adverted to this subject and have laid down the following general principles, viz :

For validity of such assessments three elements must concur:

1. The work must be public and of • a character to confer special local benefits on the district within which the assessment is levied.'

2. The assessment must be supported by benefits actually or presumptively received by the persons or property subjected to it.

3. The contribution must not manifestly exceed the benefit conferred.

Where these elements, or any of them, are clearly wanting in contributions exacted under the name of a local or special assessment, the legislative action can not be sustained. But the province of determining for what objects, in what districts, and on what persons or property such assessments may be levied, is wisely, and indeed necessarily confided to the legislative department, and it is only where the assessment is so manifestly unjust, oppressive and viola-, tive of the foregoing requirements as to give demonstration that they have been disregarded, that a court would be justified in overruling the legislative judgment. Indeed, Cooley says: “It is conceded that the legislative judgment, that a certain district is or will be so far specically benefited by an improvement as to justify a special assessment, is conclusive, and that its determination as to what shall be the basis of the assessment is equally conclusive. To invoke the intervention of a court for relief against the results of its conclusion is to give its judgment controlling effect over that of the Legislature in a matter of the apportionment of a tax, which, by concession on' all sides, is purely a matter of legislation. This is clearly inadmissible in any case where the legislative power has not been exceeded by an apportionment merely colorable.” Cooley on Taxation, p. 459. Planting Company vs. Collector, 39 An. 456.

Plaintiffs, in their brief, quote a more moderate statement of the rule by Mr. Burroughs, who says:

“Equality is the rule, and while the Legislature have a large discretion on this subject and it may be difficult to define the limit beyond which they may not pass, yet when it is plain as to a particular individual that he receives no benefit from the local assessment, then as to him the assessment is not a tax — it is a taking of private property for public use without just compensation and the assessment is void. Taxing under the taxing power gives no validity to the act; it is not the name, bxit the substance of the transaction that makes the difference between legal taxation and confiscation.'1’ Burroughs on Taxation,p. 464.

There is really no difference in substance between the rule as expressed by Mr. Burroughs and as expressed by Mr. Codley and by this court. No one contends that the legislative judgment possesses any such'conclusiveness as to validate any assessment based .on no possible benefit or out of all proportion to the possible benefit.

The meaning of the rule simply is that the legislative judgment can not be disregarded unless it be demonstrated that, by mistake- or intention, it has exacted a contribution unsupported by any possible benefit, or out of all proportion to such possible benefit.

The Legislature, in this case, has defined the limits of this levee-district ; has decided that the whole district requires levee protection and will be protected by it; and has specified the property within its limits which shall be subject to the contributions assessed, including the property of plaintiff and all like property within the-district.

The plaintiff alleges that he and his property must be exempted’ from these contributions because they can derive no possible benefit from them.

He carries the burden of clearly proving the allegation and has assumed that task.

The proof administered certainly shows that plaintiff’s plantation has not been overflowed by Mississippi river water within the memory of the witnesses who testified running back more than half a century -

Nevertheless, the fact remains that his land is alluvial, formed: by the deposit of sediment from the water'of the Mississippi river;, and the ridge, which he claims now protects him, is also alluvial.. Whence it follows that both must, at one time and repeatedly, have been overflowed by the Mississippi river.

No reason is shown why, if the same conditions should concur,, they should not be again overflowed. The changed conditions which have saved his land from overflow during the period covered by the testimony are possibly, and even probably, attributable to levee construction which has prevailed throughout the parish. The fact that numerous breaks in the levees, which have occurred from time to time, did not subject him to overflow, by no means proves that,, if the levees were entirely abandoned and swept away, he would not be overflowed. Mr. Periiliat, the only scientific expert examined,, testifies as follows: “To my mind the amount of territory overflowed depends, first, on the height of the flood line, and second, on the ratio between the outlet and inlet. With many levees down, the depth of overflow in any given area will certainly be greater than with few levees down. In this alluvial country the outlet is practically a constant quantity, that is, it remains unchanged at all times. The-inlet is a variable quantity, and depends on the number of levees-down. This country is reported and considered as alluvial, or, as everyone knows, having been formed by deposit from the Mississippi river. Therefore, any alluvial land must, at one time, have been overflowed. It probably ceased to be overflowed because levees were erected and the inlet thereby decreased. But I believe that, in all cases, conditions could be imagined which would bring, as a consequence, the overflow of all lands of alluvial formation. * * I believe that there could be enough breaks on the river proper, together with a break on the Lafourche at the head of these, ridges, to completely submerge these ridges.”

This evidence, which seems plausible and rational, certainly indicates that plaintiff derives direct benefit from the levee system as a means of protecting his lands from overflow.

But even aside from the danger of actual inundation, there are other obvious benefits which he derives from the levee system. His lands are situated in a region subject to overflow and hardly fit for habitation without protection by levees. If the lands surrounding him are abandoned, or their value be annihilated, the value of his own must necessarily be decreased. The overflow, if it does not actually cover his land, reaches near it, interfering with his communication, transportation to market and elsewhere, and inflicting numberless inconveniences.

It may be that plaintiff stands in less necessity of levee protection than his neighbdrs and receives less benefit therefrom. But that can not affect the case. It was not practicable or possible for the Legislature to ascertain exactly how much benefit each taxpayer and property owner would derive from the contemplated improvement and to make a corresponding assessment. It was bound to deal with the subject in globo. Kelly vs. Pittsburgh, 104 U. S. 82.

The judge a quo, who heard the evidence, and who lives in the district, announces his conclusion on this point as follows: “From the testimony in the record, including the map, the court feels convinced that the lands of plaintiffs are protected and benefited by the system of levees erected and maintained by the Atchafalya Basin Levee Board.” In this we concur.

Judgments affirmed.


author: Watkins, J.

text:
    No. 10,789.
    Succession of William Ball. Opposition of Heirs of Immer Ball. Intervention of Heirs of William Ball.
    3. An action against a succession for tlie recovery of tlio amount of a particular legacy, is preseriptable by ten years from the date of demand for payment could have been made.
    2. AVhile the right of action of the forced.heirs to sue for the reduction of donation mortis causa arises on the death of the testator against which the prescription of Jive years is provided, yet an exception exists in case the succession of the deceased is apparently insolvent.
    :i. In case the testimony shows that the succession was insolvent at the date of the testator’s death, and that, by dint of good management and favorable settlement of debts, something has boon saved from the wreck of his fortunes, the profit does not enure to the benefit of particular legatees.
    APPEAL from the Fifteenth District Court for the Parish of West Baton Rouge. Semple, J.

      B. C. Wiekliffe and S. Me. O. Lawrason for the Appellants.

      W. W. Leake for the Appellees.
   The opinion of the court was delivered by

Watkins, J.

This appeal is a supplement to the one we had before us last year. 42 An. 204.

That appeal presented two accounts of administration — one pro - visional and the other a ñnal account of the succession of William Ball — both of which were opposed by the heirs of Immer W. Ball, deceased brother of William, on the ground that the amount of a particular legacy of $2500 in his favor had not been placed thereon; and they demanded that the account be so amended as to recognize them as entitled to demand and receive that sum from the succession of the deceased.

The forced heirs of William Ball Sled an intervention in which they joined the executors praying for the homologation of the account and for a judgment reducing the legacy to the disposable quantum, as interfering with their legitime; and alleging, in the alternative, the insolvency of the succession at the date same was opened by the death of the deceased.

The judge a quo dismissed this intervention and we reversed his judgment and remanded the cause for a new trial on the issue thus joined.

On the new trial judgment was rendered sustaining opponent’s plea of five years’ prescription against the action of reduction, as to all the heirs of the deceased except Mrs. Eva Hamilton, and reduced the donation to I. W. Ball one-sixth — the judgment theretofore rendered on the oppositions to the accounts remaining undisturbed.

From this judgment the executors and heirs of William Ball, other than Mrs. Eva Hamilton,.have appealed.

In this court the appellants have filed a plea of five and ten years’ prescription against the demand and action of the heirs of the deceased legatee; and the appellees have filed an answer to the appeal and pray that the judgment be so amended and increased as to allow their claim in full.

I.

In regard to the prescription urged against the demands of the opponents we find the facts to be as follows, viz:

Dr. William. Ball died testate, in 1876, leaving a widow and six children. His will was opened and probated in July, 1877. The executors filed a provisional account in 1880, in which no mention was made of the particular legacy in favor of Dr. Immer W. Ball. This account was duly homologated. Subsequently the surviving widow and the eldest son of the deceased, who were his executors, seem to have acted with the property as their own, and operated and managed the plantation, and appropriated its revenues to their own support, and that of the family. In January, 1887, the heirs of the deceased legatee — Dr.. Immer W. Ball having died meanwhile — made demand upon the executors for the payment of the legacy, and the filing of a final account. This demand was resisted by the executors, on the ground “that, under a proper construction of the will, the legacy was not due and payable.” This construction was refused by the judge a quo, and we affirmed the judgment in March, 1888. Ball vs. Executors, 40 An. 284.

That suit was pending, and undetermined, for about fourteen months. Ever since the final disposition of the case the issues involved in this litigation have been agitated, without any considerable intermission of time. Between the date at which the will of Dr. William Ball was probated and the institution of the suit for the legacy, ten years did not intervene, and consequently, the prescription of ten years was not completed. R. C. C. 3544.

Indeed, the failure of the executors to urge this plea in the former .suit, in which the validity of the legacy was distinctly an issue, appears to us to have been an abandonment of it, though we have .chosen to treat it as res nova in respect to the heirs, and decide it.

II.

In respect to the prescription of the action of the major heirs for a reduction of the donation mortis causa,' quite a nice question is raised. The District Judge maintained the plea and dismissed the demands of the intervenors. But we think the record discloses a state of facts to which the rule of prescription invoked does not apply.

In treating of the propriety of relegating to future adjustment the legitime of the forced heirs of John T. Moore, we had occasion to say “ that such an issue is to be determined in the mortuaria, and before the succession of the deceased is wound up; ” and as a reason for that opinion, we said “the Oode declares that forced heirs can sue for the reduction of excessive donations, whether inter vivos or mortis eausa, 1 on the death of the donor or testator.’ R. C. C. 1504. It also declares that actions for the reduction of excessive donations ’ are prescribed by five years. R. C. C. 3542. The death of the donor or testator is the date from which this prescription begins to run.” Succession of Moore, 42 An. 332.

It will be observed that this was not an expression of opinion on the question of prescription, and can not, for that reason, be considered as strictly authoritative on that subject, while it is a correct exposition of the language of those articles of the Oode.

But there are other articles of the Oode which, under exceptional circumstances — not existing in the succession of Moore — serve to suspend the prescription of the action of reduction.

While it is formally declared in R. C. C. 1504, that “ on the death of the donor or testator, the reduction of the donation, whether inter vivos or mortis causa, can be sued for by forced heirs;” yet Article 1634 declares that particular legacies can not be discharged until “ after the payment of the debts and the contributions for the legitimate portion in case there are forced heirs.”

Construing those two' articles together, it is manifest that if the .succession of the deceased testator appears to be seriously involved in debt, and its solvency thereby rendered problematical, the legatee, by particular title, is dispensed from making demand for the payment ■of the legacy due, and the forced heirs are equally dispensed from ¡suing for the reduction thereof, because, until the solvency or insolvency of the succession is first ascertained, the latter can not know whether or not there is danger of particular legacies impinging upon their legitime. Hence, it is equally obvious that Article 1504 does not fix any absolute date] for the institution of suits in reduction in all cases, but it simply provides that “on the death of the donor or testator the reduction of a donation can be sued for.” Like other rules of law, it has its exceptions.

In this case there is a serious question raised in reference to the ¡solvency of the succession of William Ball. The executors and heirs ■contend that it was completely insolvent; and the District Judge •concurred in this view, notwithstanding he sustained opponents’ plea •of prescription. Under this state of facts as applied to the cited .articles of the Code, we are of opinion that the plea was incorrectly ¡sustained; though our learned brother of the District Court could not well have decided otherwise, as we are not aware of this ruling having been made in any previous case.

III.

The remaining question for decision is whether the succession of William Ball was solvent at the time of his death and, if solvent, to what extent.

In our opinion in this case, when it was last before us, we said:

“It is elementary that in calculating the disposable quantum reference is had exclusively to the conditions existing at the moment of the ancestor’s death, to the value of the property at that time and to the debts due by him. If the amount of the debts due at the death exceeds the value of the property found in his estate, there can be no disposable (portion) left for the satisfaction of legacies. No subsequent changes in the conditions, however operated, whether by increment in value of the property or by prescription or other extinguishment of debts, can affect the case.” Succession of William Ball, 42 An. 204.

On this issue the facts appear to be as follows, viz:

An inventory of the property of William Ball was taken on the 30th of January, 1877, on which appear the following items of property and the valuations placed upon them:

Thus showing the succession to be involved to the extent of $9,-291.87.

The account filed in 1881 shows some additional values tending to increase the worth of the succession asséts-by about §3,500 or §4,000, though still leaving a shortage of §5000, or over.

The opponents’ counsel claim that the inventoried value of the plantation was much too low, and that it should have been placed at §15,000; and that the notes'of J. N. Ball were placed at too low a figure. By this means he insists that the difference, of say §5000, is-overcome, and the succession proven to be solvent.

While there is considerable evidence in the record indicating that §6000 was a low appraisement for the plantation, in 1877, when the inventory was taken, yet it is a difficult question to determine, in 1891 — near fifteen years thereafter — how much more than §6000 was-its actual cash value, at that time.

It is true that in 1868 — near ten years prior to his death — William Ball purchased this property for the sum of §15,000, on terms of credit; but the vendor reserved a mortgage and required additional security. He, also, subsequently improved the property, by the addition of buildings, and the repair of old ones. The amount of the cost of these buildings and repairs, possibly increased the comfort and utility of the plantation, but it is doubtful whether they increased its sale value to any considerable extent. Taken all in all, and considering all of the evidence on that question, we-are disposed to regard §8500 as about the actual cash valuation that should have been placed on the property at the time.

While it is true that a larger amount was realized on the rent notes than they were appraised at, in January, 18VV, yet those notes were for future instalments of rent during the years 187V, 1878, 1879, 1880, 1881 and 1882, and our province is to ascertain what such paper was worth at the date the inventory was taken and not what was realized on them in the respective years in which they went to their matur-' ities. It seems quite reasonable that the appraisers should have placed them at the value they did, which was about one-third of the amount collected on them several years afterward.

Much the same may be said of the stock note. But if the difference of $1800 claimed should be allowed in the calculation, yet the increased allowance would only amount to $4300 — thus leaving the succession insolvent to. the extent of $750. These figures are not submitted as the result of mathematical calculations, but merely for the purpose of illustrating the argument.

Our conclusion is that the succession of William Ball was insolvent at the date it was opened.' It was evidently so considered by the executors and heirs.

And the prolonged silence and inaction of the heirs of the deceased legatee possess a like significance. If by dint of good management and the favorable settlement of succession debts and those of the deceased the heirs have saved something out of the wreck, theprofit does not enure to the benefit of the heirs of the particular legatee. If, in point of fact, the succession was solvent, there was a plain course open to them, and that was to insist on payment; and, if they have sustained loss, it has been occasioned by their neglect to take timely steps to ascertain and enforce their rights.

The judgment appealed from must be reversed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled and reversed, and it is now ordered and decreed that the demands of opponents be rejected at their costs in both courts.


author: McEnery, J.

text:
    No. 10,790.
    William Woods vs. H. B. Perkins et als.
    The homestead provided for by Article 219 oí the Constitution is exempt from seizure, where there are minors in the family who do not own property in their own right in an amount sufficient to maintain them. They are within the moaning of the constitutional exemption, “persons dependent.”

      In giving the homestead, the law maker never intended that the parent should, in order to retain it, raise his ehildred in idleness. The fact that he encourages them as they grow to manhood to earn their living in part, does not render them independent of parental authority and take them out of the class of dependent persons.
    APPEAL from the Fifteenth District Court, Parish of West Feliciana. Semple, J.

      W. W. Leake for Plaintiff and Appellee:
    _A surviving husband is entitled to the benefit of homestead in a tract of land which belonged to the community, if all the conditions as to value, residence, dependent family, etc., exist. Marcotte vs. Messick, sheriff, et al., Manning’s Unreported Cases, page 42; Gamier vs. Sheriff et al., 39 An. 886; Constitution, Arts. 219, 220; Acts 1880, No. 114.
    Minor sons, aged fifteen and seventeen years, who are clothed and fed by their father, are dependent under the law. DeCuir vs. Beuker, sheriff, 33 An. 320; B. O. C. 3556, par. 12, 216, 224,229 ; 34 An. 1059, Galligar vs. Payne.
    In a suit to enjoin a wrongful seizure, and to recover damages on account of it, attorney’s fees may bo proven. White vs. Givens, 29 An. 571; Cooper vs. Cappel, 29 An. 213; 23 An. 170; 32 An. 400.
    But should your Honors dissolve the injunction, defendants are not entitled to damages. 41 An. 740, Burke vs. Puller; 41 An. 861, Platt vs. Sheriff et al.

      S. Me. G. Lawrason for Defendants and Appellants.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff is the owner of a homestead by virtue of a declaration recorded in accordance with the Constitution of the State and Act No. 114 of 1880.

■ The defendant, a judgment creditor of the plaintiff, caused an execution to issue on his judgment and seized the homestead to satisfy the same. The plaintiff enjoined the seizure and sale of the homestead.

The plaintiff lives on the homestead and has a large family. All are of age and self-supporting, except two boys, one about eighteen years of age and the other between sixteen and seventeen.

The oldest boy works on a part of the homestead for which he pays his father rent. One hand, a woman, works in the crop with him.

The youngest,' after the death of his mother, was sent by his father to reside with his son who is married, so that his wife could care for him. His brother pays him wages at the present time of $68 per year. His father clothes him and pays his son for his food. Both boys are laborers.

There is no evidence that either has property in his own right of sufficient amount to maintain him.

The father of the minors is by law compelled to support, maintain and educate them. C. C. 227.

Both these minors are under the authority of the father and they are bound to obey him in everything which is not contrary to good morals and the law. C. C. 217, 216.

The father is entitled to the enjoyment of their labor until they attain their majority or are emancipated. They are completely under his control and at any time he can summon them to the homestead and compel them to reside and to labor on the homestead.

Their means of living is precarious, and at any time it is within the power of the father to compel them to cease their occupation, or he can take their wages for himself and thus directly deprive them of their benefit for their immediate support.

The minors could thus be rendered penniless and thrown entirely upon the father for support and maintenance. They are therefore-interested in maintaining the homestead in order that they may receive proper maintenance and education.

In giving the homestead the law maker never intended that the; parent should, in order to retain it, raise his children in idleness.

The fact that he encourages them as they grow to manhood to earn their own living in part, does not render them independent of parental authority and take them out of the class of ‘ dependent persons.” It still exists and the minors by law are dependent upon their parents. They are within the meaning of the homestead exemption “persons dependent.”

If the father should die, under the proviso of Article 219 of the Constitution, these minors, as being in “indigent circumstances,” could claim the benefit of the homestead exemption. They have no property and are dependent upon their daily labor. They are “ needy,” “poor” and “destitute of property or means of comfortable subsistence.”

Judgment affirmed.


author: Breaux, J.

text:
    No. 10,797.
    A. O. P. Pickens vs. R. L. Gillam et al.
    r^10 husband, and the wife separated more than seventeen years before this suit was brought, and afterward lived at some distance from each other, without any more regard than if not married.
    “ When the wife or the husband die rich leaving the survivor in necessitous circumstances the latter has the right” (R. C. C. 2382) to the marital fourth.
    After so many years of unfriendly separation, the deceased did not leave the survivor in necessitous circumstances.
    The leave-talring dates long prior to the'death.
    The support of the unfortunate spouse does not end with the marriage but the principle upon which the law appears to he founded is ‘*that neither of the married parties who have lived together in the common enjoyment of wealth and the position it gives shall be reduced to want.”
    The plaintiff did not live with the defendant in the common enjoyment of wealth nor did he satisfactorily establish why he did not.
    Held, that lie can not recover the marital fourth.
    APPEAL from the Tenth District Court for the Parish of Red River. Hall, J

      J. (I Egan for Plaintiff and Appellant.

      John G. Pugh and Wise & Herndon for Defendants and Appellees:
    To entitle a husband to claim from the succession of his deceased wife the marital fourth, under Article 2382 of the Civil Code, he must prove that his wife died rich, and that he was left by her death in necessitous circumstances. A husband who had abandoned his wife for seventeen years before her death can not be said to have been left by her in necessitous circumstances within the meaning of that article. 3 An. 713.
   The opinion of the court was delivered by .

Breaux, J.

This suit was brought by the plaintiff to recover the marital portion, that is, the fourth of the succession of his wife in full property, under Article 2382 of the Civil Code, which provides that when the wife has not brought any dowry, or when what she has brought as a dowry is inconsiderable with respect to the condition of the ¡husband, if either the husband or the wife die rich leaving the survivor in necessitous circumstances, the latter has a right to take out of the succession of the deceased what is called the marital portion.”

The evidence shows that the plaintiff and the late Mrs. Vaschor were married in 1871.

That the wife did not bring any detal property in marriage.

That she left no issue of the marriage.

At the date of her death she owned property worth more than 88000.

He did not own property and depended on his daily labor for his ■support.

The marital relations have not been dissolved by any decree of court.

Less than two- years after the marriage they separated and lived .apart.

There never was the least attempt at reconciliation.

The plaintiff has resided in different States at some distance from his wife. The evidence does not disclose that he made the least inquiry about her during the seventeen years of separation.

He was not present at any time during her last illness, nor at her funeral.

The facts are not controverted, except insofar as relates to the •separation.

The plaintiff contends that his wife left him and invokes in support the testimony of a witness, who testifies that: “The reason ■they separated was his indolence and not helping her to take care of things. She owned a place on Honey Bayou. I don’t know whether .-she had paid all on it or not, but think she had, and had some money. She told me that he made away with about 81500. He did ■not quit her at all; she quit him.”

Three witnesses for the defense state that he left her.

No comment or explanation with reference to the separation is made, only that he left her; no reason is mentioned, or aught said ■of any of the particulars of this separation. Who was the aggressor, who in the wrong, the brief statements of the witnesses do not enable us to determine. The fact remains that during seventeen years there existed a cold resentment between them, and not the least attempt at reconciliation. They were strangers to each other, and it was as if they had not been married.

A few months after her death the husband presented his claim for the fourth of the succession. It is proper to consider the effect to be given to separation &nd the evidence with reference to absence. Protracted absence may be considered with other facts. A hus - band’s desertion can be shown by a variety of circumstances, as for instance his departure with .the avowed intent never to return, his-prolonged absence without business detention, or without providing' in the least for his family, although not entirely without ability so-to do.

The abiding together of married persons implies that the husband shall select the place of dwelling and that in case of difference in-this respect his will shall prevail. O. C. 120. He left the place where they were married.

In most cases involving questions relating to the marital fourth in the decisions of the courts of this State reference is made to the 58- and 117 Novelles of Justinian, and to 6th Partidas, tit. 13, law 7.

It was not retained in the Code Napoleon, but it was embodied asoné of the articles of the Louisiana C. C. We therefore have not the assistance of the progressive French jurisprudence on the subject.-

Merlin, in his Repertoire, Verbo Quarte du Conjoint Pauvres. dwells on the necessity of some relations existing between the spouses to enable the survivor to recover the marital portion. We-translate: “In that respect, in addition to the poverty of the spouse, the Novelles 58 and 117 require two conditions that she may recover' the fourth of the succession of her husband; the first, an honest marriage; second, that she always abided with him. From which it is-not difficult to judge that the object of the legislator is to conserve the dignity of marriage.”

In a case quoted, with approval, by the same commentator (Verbolb.), the inquiry occurs: “After the marriage, did she dwell with her husband? Did she remain near him to the end?” It is answered: “ Not a moment of concord and union.”

Again from the same commentator, same subject, we quote:“Would it be proper that one who has borne with dignity the name and condition of her husband during his life, shared his fate and participated in his good fortune, should all at once fall into abject poverty because she brought in marriage only merit and virtue.”

The 53d Novel was in the interest of the wife only, but afterward,by Chapter 5 of the 117th Novel, the same right was given to the-husband. It was not allowed when the spouse claiming had been wanting in interest, feeling and attachment.

The principle which prevailed in construing the laws just quoted is felt in the jurisprudence -of Louisiana.

The support of the unfortunate spouse does not end with the marriage, but the principle- upon which the law appears to be founded is “that neither of the married parties who have lived together in the common enjoyment ojF wealth and of the position which it gives shall be suddenly reduced to want; and a “ part of the estate of the deceased, who has died rich, is appropriated to relieve the survivor, who in the absence of it would be reduced to poverty.” Succession of Fortier, 3 An. 105.

The union of the spouses and the common enjoyment of wealth is a part of the train of reasoning in the case of Connor vs. Connor, 10 An. 451.

The article of our Code is clear: “ Leaving the survivor in necessitous circumstances.”

After these many years of unfriendly separation, the deceased did not leave the survivor in necessitous circumstances. The leave-taking took place long prior to the death.

We at first felt the force of the opinion in the case of Gee V. Thompson, 11 An. 660, urged upon our attention by plaintiff’s able counsel. On second reading it occurs that the features of the case are not similar.

The question solved is the following:

Was the plaintiff the wife of Saunders at the time of her death?

She had been driven away; had been made an outcast; her name had been mercilessly aspersed by her husband; she attempted to return but was prevented by him.

His conduct compelled her to place herself under the law’s protection ; the court held that she had not placed herself in a worse condition by so doing.

That separation from bed and board did not dissolve the marriage ties-and that she had a right to the marital fourth.

The plaintiff’s conduct was not similar.

He hastily sought a home elsewhere, and gave himself no concern about the marriage. It is only twice mentioned so far as the record discloses.

The first time when he brought the suit, he testifies he brought, fox-divorce ; the second time when this suit was filed, for the marital portion. The cause of the absence not being satisfactorily shown the court will not allow the demand.

In the case of Armstrong vs. Steeber, curator, et al., 3 An. 713, it is true that it is not satisfactorily shown that the husband died rich, but the court none the less adds: That the wife had left her husband several years before his death and abandoned herself to a life of shame.

She did not go near him in his last illness and suffered him to die uncared for and alone.

He did not leave her in necessitous circumstances.

She had committed the desertion. The marital status had been disregarded and therefore she was without right.

In the absence of all attempts to maintain the marital relations. Considering the wilful and prolonged absences the court concludes that the plaintiff can not recover.

The views expressed make it unnecessary to pass upon the questions presented in plaintiff’s bill further than to state that the abandonment is alleged and therefore was susceptible of proof, and that we do not consider as proven the averments about apprehension of bodily harm argued on part of the defense.

The District Judge who heard, the witnesses, who is acquainted with them in all probability, and who weighed their testimony at the time given, found for defendants.

After carefully considering the facts and studying the law applying-we affirm the judgment.


text:
    No. 10,804.
    Joseph Dana et al. vs. Tony Dana et als.
    Tlie testimony among brothers being conflicting and disconfcertingly confusing:
    The succession of their father never having been opened, although it owned , property, and the assets of the mother’s succession having been left with little owing to a division of property, made a short time prior to her death, in which division one of the heirs was not included: Collation must be made that equality of inheritance may be established among the heirs.
    The division of property made by the mother a short time prior to her death included nearly all she owned.
    The heir, Tony Dana, did not owe her $G00, as charged, and he is, therefore, not bound to collate that amount.

      A PEEAL from the Seventeenth District Court for the Parish of East Baton Rouge. Buckner, J>

      H. F. Brunot and J. & G. TP. Bxirgess for Plaintiffs and Appellees:
    1. Where the father of minors die leaving an estate in community and the surviving wife and mother continue the same business with the labor and assistance of the minor children each heir is entitled to his portion of the succession of his father and mother, and the minors are not allowed pay for services during their minority. 2 An. 215, Ledbetter vs. Ledbetter.
    2. Where an heir receives an extra portion he should be made to collate, unless it be an advance made legally and not exceeding the disposable portion.
    3. Lach heir receiving from their deceased parents, should collate to the mass of the successions to equalize each portions of all the heirs in a final settlement,
    I. This is'a suit by plaintiff against bis brothers and sister for collation to him of $575, which he alleges each received in a partition or settlement had shortly before their mother’s (Mary A. Dana) death. 1-Ie sues as administrator of his his mother’s succession and individually. The law regulating collation is so clearly laid down in the Civil Code that a mere reference to the article will attract the attention of the court.
    Article R. O. C. 1227 defines what collation is, and by whom it is due.
    Article 1229 shows the oqtiity and justice of the rule, so that whatever is received by one heir over the others is presumed to have been given to be paid to the other heirs after the death by collation, so that the advantage in property or money by one heir is to be collated unless in the act it recites that it is intended to be an advantage or extra part.
    Articles 1231-2, 1231, impose the obligation to collate; so, also, 1277, which pro- • vides that if there be not enough in the succession to satisfy the heir entitled to collation, the collation or the balance on it shall be paid by the heir who owes the collation. Article 1278 directs how this amount may be secured. See R, C. C., Articles 1212,1213,1217,1218. Articles 1251, 1286,1231.
    We will state here that besides the collation due by Tony Dana judgment was rendered against him for $600. The evidence showed that he got $1000, but plaintiff claims only $600.
    It will be noticed that only two of defendants appeal,.Tony and John. Neither Samuel nor his sister appeal. Wc rely on the evidence of Samuel Dana, an interested party testifying against himself; it is certainly entitled to great weight We refer to the references under several articles of the Code quoted, and to the 31 An. 118, Louke Sue. V. (O.) 21. Collation equality between heirs is a cardinal principle of our law. No deviation is allowed save in narrow limits, and then under the forms of law. 13 An. 207; 2 Hennen, p. 1173; Succession V. (C.) 35; 7 R. 129.

      Kernan & haycock for Defendants and Appellants:
    A donation inter vivos even of movable effects will not be valid unless made by authentic act.' R. C. 1538, 1536; 22 An. 358.
    The manual gift of corporeal movable effects must be accompanied by a real delivery. R. C. 0.1539; 22 An. 97, 111.

      A donation oí movable property can only be made in two ways: By act before a notary and two witnesses or by actual manual delivery. 30 An. 223.
    Tlie husband ean not be a witness for or against his wife, or the wife for or against her husband. R.O.C.2281; 11 An.628; 21 An.631; 38 An. 197,1015; 40 An. 274 and275.
    Plaintiff must prove his allegation or he can not recover. He must make his claim certain.
   The opinion of the court was delivered by

Breaux, J.

This suit was brought by one of the forced heirs of Marie Antoinette Dana, deceased, who sues in two capacities, personally, and as administrator of the succession of his late mother, to compel his brothers and sisters to collate each the sum of $575, alleged to have been received, by each, from their mother, as an advanced portion; also to recover of one of the defendants, Tony Dana, the. sum of $600 and certain personal effects, to be apportioned pro rata among the heirs.

Defendants Tony and John Dana pleaded an exception of no cause of action, which was overruled. Their answer contains a general denial. They, in addition, set forth that the personal effects claimed were delivered to plaintiff; further, that three of the defendants had been engaged in business as partners, and that on the dissolution, of the partnership, a partition was made, and an equal share was allowed to the mother.

From a judgment against Tony Dana for $600, in favor of plaintiff, and against all the other heirs ordering them to collate each the sum of $575, defendants Tony Dana and John Dana appealed.

The conflicting statements of the witnesses make it difficult to determine whether the property belonged to Marie Antoinette Dana, or to the partnership — of which three of her sons were the members. Their father died about three years before the suit was brought. His succession was never opened. A few of the witnesses testify that he had no property; others testify that he owned two luggers and other property which was taken possession of by their mother, after his death, and that under her management, with the aid of her sons, two of whom were minors, the property was made to increase. By dint of economy, a few months prior to her death she was enabled to donate a certain amount to four of her children, she retaining an amount similar to that donated to each, besides other property of little value.

There were six witnesses examined in the trial of the casq, all heirs except an nncle and the wife of one of the heirs, whose testimony we will hereafter refer to. Sam Dana, a partner of Tony and John, the appellants who claim the property as -belonging to the partnership, testifies that the business continued after their father’s death, controlled by the mother with the children. His testimony is not always consistent. Of the contradictory statements made, at least this clear portion of the testimony will be considered and some weight given, he .being interested as a member of the partnership claiming to be owner, and therefore against his interest; that the property was owned by their mother.

The other two partners testify that the property belonged to the partnership, and are pleased to testify that their father and mother had no property.

It is proven that the Aline, a lugger, was once owned by the father, afterward the Josephine,- another lugger. These were, purchased about six years before his death, and were owned by him at his death. This is, strange to say, uncontradicted.

These boats were the property of the father and mother, acquired by their joint labor and that of their children. The appellants were minors, at the time. The minors can not recover for their labor and change the ownership of property by proving that it contributed to its purchase. Ledbetter vs. Ledbetter, 2 An. 15.

From the amount realized in trading, and in selling these boats others were bought by the mother, who had the management of the business after the father died, and controlled it to her death.

The record discloses that she was thrifty.

The money realized by her can be accounted for only on the theory that it was invested in the store in Baton Rouge and in other property bought after all the luggers haS been sold.

After careful consideration we conclude that the partnership was not the liberal donor to the mother of one-fourth of its assets, but that on the contrary, she divided among her four children property which they had become accustomed to consider as property owned in common, and that for some unexplained reason, plaintiff was not included in the distribution made.

The amount received should be collated and included in the partition.

The other claim amounts to $600, alleged to be due by one of the defendants, Tony Dana, to the succession of his mother.

It is shown that this defendant bought property. One or two of the witnesses testify that at the time the amount of $600 was handed to him by his mother to make this purchase.

Conceding this to be a correct statement among the many that are, decidedly incorrect, as this amount was handed to him a short time, before the division made of the property, and as it is shown that all' the property was appraised and the amount received by each heir ■ was settled by reference to the value of the whole, we conclude that, this part of plaintiff’s demand should be rejected.

No reference in the testimony is made to $600, or to sums aggre-. gating that amount.

It is contended that as it is in evidence that $600 was handed to. one of the defendants, as before mentioned, it follows that he is indebted in the sum of $600.

The division of the property made by the mother included all the assets she had, except property of little value. It is not satisfactorily shown that she owned -besides a sum of $600 due by Tony Dana.

The testimony of the wife of one of the heirs has not been considered.

Our brother of the District Court correctly interpreted the law with reference to the testimony of the wife when the husband is interested, but erred in its application. The wife could not testify without testifying for or against the interest of her husband.

Properly, the witness was directed to testify only with reference to the amounts received by the co-heirs of her husband with the view to collation. But it was not possible to fix any amount without, affecting the husband’s interest, and therefore the wife’s testimony falls within the exclusion of Article 2282 of the Oivil Code and was not admissible.

Appellants have urged that one of the heirs, a married woman,, has not been cited and that no proof has been made establishing any indebtedness on her part.

The form of the citation is evidently an oversight. It can not be-of any avail. The interested party makes no defense. We are led to notice this objection only to state that a partition must be made-to settle the succession and establish that equality which should prevail among the heirs.

During our examination we were impressed with the necessity of this partition and were tempted to remand the case without further action to enable the heirs to make a partition.

We have decided the issues presented at this time, as it may facilitate an earlier settlement and thereby enable plaintiff, Joseph Dana, to get his own.

The judgment appealed from is hereby amended by deducting therefrom the $600 decreed in this judgment to be due by Tony Dana to the plaintiff.

After amendment the judgment appealed from is affirmed.


author: Bermudez, C. J.,

text:
    No. 10,792.
    John Klein & Co. vs. W. H. Pipes, State Treasurer.
    State warrants issued to public and charitable institutions under appropriation act 48 of 1888, payable out of the revenues of 1888, are prohibited from being •sold, without the written approval o'f the Executive expressed on the face thereof, and are not negotiable instruments.
    Parties acquiring such warrants, with or without such approval, have no greater right than the institutions themselves, to which originally issued, possessed.
    Such institutions and parties can not be heard to complain, where the revenues of 1888 prove inadequate to pay all their warrants in full for that year, that some of those for the expenditures of the first half of the year have been paid inful\ while the others will be so in part only.
    In the end, the whole pro rato, will have been justly and equitably distributed.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Buckner, J.

      Charles Carroll, for Plaintiffs and Appellees:
    When the State revenues of any year are insufficient to pay in full the warants of that year, it is the duty of the Treasurer to divide funds coming into his hands ratably among all outstanding warrants, making no classes or preferences among the warrants of equal dignity, but treating all alike. State ex rel. Bier vs. Burke, Treasurer, 37 An. 434.
    The fact that Treasurer Burke made an unlawful preference in paying certain warrants issued under the act of 1886, does not authorize the present Treasurer to discriminate against other warrants held by third parties, issued to the same beneficiaries under the act of 1888.
    The Fay case, 36 An. 241, cited by defendant and the only pretense of authority either in law or jurisprudence urged for his course, has no bearing or relevancy in the present controversy, for the reasons stated at length in the foregoing brief. The Bier case, decided later, defines the duties of the Treasurer as to apportioning the State funds, and should be followed.

      W. H. Rogers, Attorney General, for Defendant and Appellant:
    Tlie Treasurer, when funds on hand are not sufficient to pay appropriations in full, should equitably pro rate.

    An undue preference or erroneous distribution to one class warrants the Treasurer in making pro rata with others of the same class who have received nothing. 3G An., p. 211.
   The opinion of the court was delivered by

Bermudez, C. J.,

This is a suit to direct the distribution of public moneys.

The plaintiffs complain of unauthorized and illegal preferences by the State Treasurer, in the payment of warrants drawn against the general fund of 1888, and this, to their injury as holders of certain warrants belonging to the third class, mentioned in the appropriation Act, for appropriations made for the second part of the year 1888, to be paid out of the revenue for that year. They charge that some warrants, under appropriation for 1886, for the first part of the year, of the same class, have been paid in full, while others, similar in every respect, remained unpaid, in part; that the warrants for appropriations for the second part of the year, made in 1888, have also remained altogether unpaid ; that the whole revenue of 1888 ought to be pro-rated among the warrant holders under appropriations of that year, as the revenues of that year will be insufficient to pay all the warrants of 1888; that the treasurer proposes to apply what revenues of 1888 have come and will come to his hands to the payment first, of the unpaid warrants for the first half of the year 1888 and, next, to pro-rate what may remain among the warrants for appropriations for the second half of 1888, whereof the plaintiffs hold $23,941.02.

From a judgment perpetuating the injunction and directing payments to be made in the future, as claimed by the plaintiffs, the Treasurer appeals.

It appears that defendant’s predecessor had paid in full all warrants for the third class representing the first quarter of 1888, issued under appropriation acts 47 and 61 of 1886, and likewise some of those of the same class for the second quarter; that the defendant has, smee his coming into office, made payments on some of the third class warrants for the second quarter; that there remain some outstanding like warrants, as also warrants for the third and fourth quarters, issued under act 48 of 1888, and that no payment has been made on account of the second half year of 1888.

We are at a loss, under that condition of things, to perceive how the plaintiffs can at all complain of the distribution to be made by the Treasurer, for the reason that the warrants they hold are not negotiable instruments transferable by indorsement of the payees and delivery; are not shown to have legally transferred to them as the law requires.

Even had they been legally transferred the plaintiffs would not, as transferees, have acquired greater rights than their transferers possessed.

The warrants which the plaintiffs claim to own are for expenditures for the fiscal year, commencing July 1, 1888, and ending June 80, 1889, tobe paid out of the revenues of 1888. They appear to have been issued to certain public and charitable institutions.

The appropriation Act which authorizes them to be drawn, and under which the plaintiff claim, is act 48 of 1888.

That Act is an entirety and can not be accepted in pare and repudiated in other respects by the plaintiffs who claim under its provisions.

It provides distinctly that hereafter no warrants issued under its provisions to public and charitable institutions shall be sold without the written approval of the Governor, expressed on the face of the warrant. (P. 43 at the top.)

The same prohibition is found in Act 47 of 1886. (Top of p. 73, second par.)

There is nothing in the record to show that the warrants held by the plaintiffs were ever disposed of with Executive sanction.

They therefore could not and did not pass from the institutions at any time to any one, and, in legal contemplation, are .still in the hands and owned by these institutions.

Such being the legal facts, and conceeding that the warrants had been disposed of with the approval of the Governor, it is patent that the transferees would not have acquired any greater rights than the institutions themselves enjoyed.

Granting, as is urged, that some of the revenues of 1888 have been applied to the payment in full of certain warrants for the first part cf the year 1888, these payments must be considered as having been made strictly to the institutions themselves or to their transferees. Such being the case, how could those ■ institutions, or their transferees, be heard to complain that some of their warrants for 1888 have been paid in full, while others for the same year, will not be, the revenues for 1888 proving inadequate, and that the Treasurer ought to have pro-rated the revenues of 1888 so as to give them only a proportion of their warrants for the first half of the year?

It does appear that it must be a matter of utter insignificance, from a legal standpoint, for the institutions to receive payment in full of some, and all accruing pro rata on their other warrants, when, as a fact, in the end they are paid the entire pro rata accruing to them respectively on their warrants for the whole year.

Practically, they should be contented and grateful that they have received at first a full payment of their first warrants, and that they will receive, in due course of collection, on their other warrants, the portion which will accrue to them out of the inadequate revenues of 1888 to be applicable thereto under the law.

It is therefore ordered and decreed that the judgment appealed from be reversed, and it is now adjudged that the demand of plaintiffs be rejected, with judgment for defendant, with costs in both courts.


text:
    No. 10,793.
    John Klein & Co. vs. W. H. Pipes, State Treasurer.
    1. When the General appropriation Act of 1886 became a law it constituted an appropriation of the general fund to the purposes mentioned therein to the extent necessary for their satisfaction.
    2. A subsequent Act, malting a new and distinct appropriation and expressly providing that it shall be paid out of the general fund “ not otherwise appropriated,” necessarily recognizes that the general fund, so far as covered by prior appropriations, has been already “ otherwise appropriated,” and subordinates the new appropriation to such prior ones.
    3. Different questions might arise if the later Act were a deficiency bill merely increasing the amount of an appropriation already made in the general Act to meet unforeseen necessities.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Buckner, J.

      Charles Carroll for Plaintiffs and Appellees:
    1. Warrants issued under Act 67 of 1886, for aiding the trustees of the Southern University in erecting a “building for the education of persons of color,” should be paid as warrants of the second class, as provided in Act 47 of 1886. See See. 8, Act 47 of 1886; See. 3, Act 48 of 1888; Sec. 3, Act 82 of 1890.
    2. The General Assembly has full power to grant certain warrants a preference over others, and it is the duty of the Treasurer to follow the directions of the law in that respect. State ex rel. Bier vs. Burke, Treasurer, 37 An. 434.
    3. It appears that courts of justice are without power to recognize preferences not established by statute. Klein vs. Treasurer, 42 An. 175. Much less should the treasurer be permitted to adopt any order or classification other than that-fixed by law.

      W- H. Rogers, Attorney General, for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

The general appropriation Act, No. 47, of 1886, made appropriations for the general expenses of the State for the fiscal years from July 1, 1886, to June 30, 1887, and from July 1, 1887, to June 30, 1888, respectively.

Besides appropriations for the salaries of officers and office expenses of various departments of the government, the Act made numerous appropriations for public purposes, payable out of the general fund, amongst which were those for the support of the Louisiana State University and Agricultural and Mecanical Oollege, of the Univerity for the Education of Persons of Oolor, of the Blind Asylum, of the Deaf and Dumb Asylum, of the Insane Asylum, of the Charity Hospitals in New Orleans, Shreveport and Alexandria, of the Soldiers’ Home, etc.

The final section of the Act provided “that the Treasurer shall pay warrants drawn against the general fund in the following order:

“ 1. Warrants issued for salaries of officers, employés, and office-expenses of the various departments of the government, including assessors.
“2. Warrants issued for the Agricultural and Mechanical College, and University for Education of Persons of Color, and State printing.
“3. Warrants issued for miscellaneous purposes.”

Subsequently, by Act 67 of 1886, the General Assembly made an additional appropriation to t.he University for Persons of Color of $14,000, for the purpose of aiding in the erection of a college building. By the express terms of the Act the appropriation is made ‘‘ out of any funds in the State treasury not otherwise appropriated and standing to the credit of the general fund,” and it was to be paid “ one-half out of the revenues of 1886, and one-half out of the revenues of 1887.”

The plaintiff, as holder of warrants issued under this latter Act,. claims that, as warrants issued for the University for the Education of'Persons of Color, they are entitled to the preference granted to touch warrants under the section of the general appropriation Act above quoted.

We can discover no possible ground for such a pretension.

No one can dispute' that when the general appropriation Act became a law the general fund for 1886 and 1887 was appropriated to the purposes mentioned therein to the extent necessary for their satisfaction.

When the subsequent appropriations was made by Act 67, and when the Act expressly declared that it was to be payable out of any fund standing to the credit of the general fund “ not otherwise appropriated,” it necessarily recognized the self-evident fact that the general fund had already. been appropriated to the purposes mentioned in the prior Act and had been thus, to that extent, “otherwise appropriated.”

Different questions might arise if this were a deficiency bill simply increasing the amount of an appropriation already made in the gen - •eral Act, rendered necessary by unforeseen contingencies, such as was involved in Klein vs. Treasurer, 42 An. 175.

The Act 67 is not a deficiency bill. It is a new and independent appropriation to a purpose distinct from any embodied in the general Act, and this claim must look for satisfaction to the source expressly designated in the Act, to-wit: to the general fund “not otherwise appropriated” and only after satisfaction of appropriations previously madp.

In acting according to this view, the Treasurer simply obeys the express mandate of the law.

It is, therefore, adjudged and decreed that the judgment appealed from be avoided and reversed; and it is .now decreed that there be judgment.in favor of defendant and rejecting plaintiff’s demand at their cost in both courts.