author: Nicholls, 0. J.

text:
    No. 11,713.
    Watkins Banking Company vs. Louisiana Lumber Company, Limited.
    On Motion to dismiss.
    The orcler of appeal granted was the court’s order, and if erroneous, the error was not imputable to the appellants. The order as granted by the court was made under Sec. 4 of Act No. 45 of 1870, E. S., authorizing the District Judge to make a change in the “return day” under certain circumstances. The appeal was made returnable at New Orleans on the second Monday of January, 1895, and the transcript was filed at that place at that date. Before that date sessions of the Supreme Court at Opelousas were abolished, and all appeals were made returnable at New Orleans by Acts Nos. 12 and 69 of 1894 The transcript was properly filed at that place. An erroneous designation by the District Court of the place where an appeal shall be returned does not vitiate the order and authorize a dismissal of an appeal, if the record be filed at the proper place w’thin the time legally fixed by the court.' The places at which appeals in civil cases are returnable are fixed by the law itself.

      On the Merits.
    Where defendant in a suit reconvened against plaintiff £or an amount within the appellate jurisdiction of the Supreme Court, and its reconventional demand having been rejected, it appealed to that court, its appeal did not carry with it £or review to that tribunal the judgment which plaintiff in the suit had obtained against defendant, and which, in itself, was below the limit of its jurisdiction. On such an appeal the issues determined by the judgment on the original demand must be held closed in ascertaining the rights of parties and to have been correctly rendered.
    Where upon suit being instituted £or the recovery o£ damages alleged to have bsen incurred through writs of sequestration and attachment illegally issued, it is shown that by judgment standing unreversed, although the attachment was dissolved the sequestration was maintained, that the two writs were simultaneously executed and covered the same property, and that the seizure under both writs was released at the same time under a forthcoming bond, there is no basis £or a judgment for the plaintiff — the illegality of the attachment is met at every step by the legality of the sequestration. Plaintiff, however, is entitled to attorney’s fees for setting aside the attachment.
    A BPBAL from the Twelfth Judicial District Court, Parish of Cal'-‘L casieu. Schwing, J., ad hoc.

    Plaintiffs sued the defendant for two thousand dollars. They accompanied their demand for a personal judgment by an application for a writ of sequestration, based upon the claim that the amount due them was supported by privilege on the property of the defendants, and for a writ of attachment, upon the ground that defendants were about leaving the State permanently, without there being a possibility, in the ordinary course of judicial proceedings, of ■obtaining or executing judgment against them previous to departure; also, that they had already disposed of part of the property on which they claimed privilege, and that they feared they would dispose of the balance during the pendency of the suit; also, that defendants had disposed of their property, or a part of the same, to defraud their creditors, or give an undue preference to some of them over them. Orders for sequestration and attachment having been granted, writs of sequestration and attachment issued, under which the sheriff seized certain property. Two motions were made by the defendants — one to dissolve the sequestration, the other to dissolve the attachment. The motion to dissolve the sequestration was overruled ; that to dissolve the attachment was sustained. Defendants filed an answer and pleaded in reconvention a claim of twenty-five ■thousand dollars damages as resulting from the writs of sequestration and attachment which had issued, claiming that they were unfounded, illegal and malicious.
    The District Court'rendered judgment in favor of plaintiffs against defendants for two thousand dollars, recognizing as legal and maintaining the writ of sequestration, and making it executory to the amount of the judgment on all the property sequestered, and ordering it to be sold to pay plaintiffs’ claim, and rejecting defendants’ reconveotional demand. Defendants appealed. Plaintiffs moved to dismiss the appeal on the ground that at the time it was granted, appeals to the Supreme Court from Oalcasieu parish were governed bp Act No. 69 of 1884, and by that act they were returnable at Opelousas on the first Monday of July of each year, while by the order of appeal in this particular case the appeal was illegally made returnable at New Orleans on the second Monday of January, 1895, and that this improper fixing of the return was imputable to appellants.

      D. B. Gorham and T. T. Taylor for Plaintiffs, Appellees.

      A. P. Pujo for Defendants, Appellants.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Nicholls, 0. J.

The reasons assigned for dismissal of the appeal are thus stated: “Appellant asked for and obtained an order of appeal June 25, 1894, returnable at the city of New Orleans on the second Monday of January, 1895, whilst the appeal was legally returnable at Opelousas on the first Monday of July, 1894, under Act No. 69 of 1884, which was then in full force. Two regular terms 'of the District Court for Oalcasieu — one in September, 1894, and one in November, 1894 — were held since said improper order and return day was obtained and appellants made no effort to perfect their appeal until the 10th of November, 1894, when they filed their appeal bond. They had ample time and opportunity to have had the improper order of appeal and return day corrected, even after the adjournment of the Opelousas term, and have said appeal made returnable at New Orleans, on the second Monday of November, 1894, as provided for by Act No. 69 of 1894, approved July 6, 1894, and which was in force at the time the appeal was' perfected. The granting of the improper order of appeal, and the fixing of said improper return day were made according to the motion therefor by the appellants, and the order is attributable to their laches and negligence, and not to the court.

The order of appeal (granted June 25, 1894) reads as follows:

“Defendants’ counsel moves for an appeal, both devolutive and suspensive, from a judgment rendered against defendant company. It appearing to the court that it is a physical impossibility for the clerk to prepare a transcript in the case in time for the meeting of the Supreme Court in July, at Opelousas, the defendants are granted appeals as moved for, returnable to the Supreme Court at New Orleans, Louisiana, on the second Monday in January, 1895, upon defendants furnishing bond for devolutive appeal in the sum of two hundred and fifty dollars, and for the suspensive appeal in the sum of five hundred dollars.”

Under Act No. 72 of 1884, appeals to the Supreme Court from the parish of Calcasieu were returnable to the session of that court at Opelousas on the first Monday of July.

On the 20th of June, 1894, Act No. 12 of the General Assembly of Louisiana, approved June 18, 1894, was promulgated at Baton Rouge. By that act appeals from the parish of Calcasieu were made returnable to the Supreme Court at New Orleans on the second Monday of January.

The motion for and Older for appeal in this ease was made on the 25th of June, 1894, at which time, though Act No. 12 had been officially published at the capítol at Baton Rouge, it had not yet become officially promulgated in Calcasieu. The condition of the record was such at the time of the order of appeal as to render it impossible to complete and file the transcript at the Opelousas term of the Supreme Court in July, 1894. The law-maker, anticipating the possibility of such a contingency happening, had, by Sec. 4 of Act No. 45 of 1870, granted authority to the District Judge to make a change in the return day. It provided that in all cases of appeal the judge of the court from which it is taken shall make the appeal returnable to the Supreme Court at the next return day for appeals from the parish, if there be time enough after granting it to give the notice required by law and prepare the record; if not, then he shall fix the return day for some day within the next term after the appeal is granted, allowing sufficient time to give the citation required by law and to prepare the record, if sufficient time within the term shall remain — if not, then he shall fix the return day for the following term.”

In the case at bar the judge fixed the return day as the second Monday of January, 1895. It is not only not suggested that the transcript of appeal could have been made out at any earlier day, but we find in the record, under date of November 10, 1894, a certificate of the District Clerk to the effect that he had not been able up to that date to prepare the transcript, and that he would not be able to do so until the second Monday of January, 1895 (the return day fixed by the District Court). The transcript was filed at that time. Appellee has overlooked the fact that this discretionary power of the judge refers to the dates of return, and that the places where appeals in civil cases are returnable are fixed, not by the judge but by the law. The designation of New Orleans by the judge in his order of 25th June as the place of return would not have authorized the dismissal of the appeal, if appellant had duly filed the transcript at Opelousas, had that been the legal place for returns from Calcasieu, on the second Monday of January, 1895, though appellant might have lost his appeal under such circumstances had he followed the judge’s improper (on that hypothesis) designation of place, and filed the record at New Orleans. The appeal as to place would have been dismissed. When the date for filing the appeal fixed by the judge was reached, appellant found New Orleans designated by Act No. 69 of 1894 as the place for appeals from Calcasieu, and he properly filed the record at that place. The provision in Sec. 3 of Act No. 69 of 1894 that “all appeals pending in the Supreme Court on the first day of August, 1894, and which have been made returnable at the cities of Monroe, Opelousas or Shreveport, are hereby transferred to the city of New Orleans, there to be tried on their respective return days as fixed by See. 2 of this act,” did not make this particular case (if it fell under that classification) returnable and triable at New Orleans on the second Monday of November, 1894 (which was the first return day after the passage of that act for returns from Calcasieu), though New Orleans was made thereby the place of return. The law was not intended to apply as to the time for the return to a case for which a special date of return had been fixed under the peculiar condition of ids record by the District Judge under his special grant of authority. The judge’s order as to time remained unchanged by the change of the law. Though no use was made of the same in this court on the second Monday of November, 1894, the first day fixed under the last law for appeals from Calcasieu (and under our views, as expressed, there was no necessity for such use at that time), the certifica! e of the clerk, as we have said, shows that he had been unable up to that time to complete the record in the case, and appellant would have been entitled to an extension of time had that been its actual return day.

We are inclined to think that the law-maker, in referring in the closing portion of Sec. 8 of Act No. 69 of 1894 to appeals granted to the Supreme Court “ by an order of any court prior to the 1st August, 1894, from parishes from which appeals are made returnable to New Orleans under existing laws” (italics ours), and declaring that they should not be in any manner affected by the provisions of the last act, but should be returned on their respective return days, as fixed by existing laws, had in view Act No. 12 of 1894 as a then “ existing law,” although it had not yet, by reason of the date of its promulgation, become operative in Calcasieu. Appeals falling under that act were to be read out of Act No. 69. The date of return of appeals for Calcasieu, under the Act No. 12, was the second Monday of January, 1895, the date fixed for the return of the present appeal by the District Court.

Independently of what has been said, we are of the opinion that had there been error in the return it was not imputable, to appellant. As we read the order of appeal, appellant’s motion went no further than to apply for an appeal, suspensive or devolutive, from the judgment. The fixing of the date and place of appeal, and the assignment of reasons for so doing, was the act of the court, for which appellant should not be made to suffer. State vs. Dellwood, 33 An. 1230.

The motion to dismiss is overruled.

On the Merits.

At the threshold of the case we are met by the question as to what the issues legally before us are. Defendant’s counsel seem to be of the opinion that their appeal has brought up both plaintiffs’ demand and the judgment thereon, and their reconventional demand and the judgment thereon. Plaintiffs’ demand, in itself, is not within our appellate jurisdiction. It has not been brought within that jurisdiction by the reeonventional demand. This has been repeatedly decided. Gove vs. Kendig, 3 Rob. 387; Hanna vs. Bartlette, 10 Rob. 438; Ex parte Goodwin and another, 11 Rob. 12; Dean vs. Clarke, 5 An. 105; Tardos vs. Ship Toulon, 14 An. 430; Overton vs. Simon, 10 An. 685; Osborn vs. Moore, 12 An. 714; Vincent vs. Schweitzer, 17 An. 199; Pesant vs. Heartt, 22 An. 292; Lamorere vs. Avery, 32 An. 1010; Stevenson vs. Whitney, 33 An. 658.

The defendant has availed himself of the provisions of Act No. 50 of 1886, authorizing a defendant to demand by way of reconvention from the plaintiff the damages which he may have sustained by an illegal resort to the conservatory writs issued in the case. Such a course may, in some cases, be exceedingly advantageous, but in suits where the main demand as to appellate jurisdiction would be in one court and the reeonventional demand in another, defendants may be placed at great disadvantage. For the purposes of the present appeal •we are not at liberty to deal with plaintiffs’ judgment on their demand otherwise than as correct in every particular. The case, therefore, stands before us with plaintiffs as the judgment creditor of the defendants for two thousand dollars under a judgment “recognizing as legal and maintaining the sequestration which he caused to be issued in the case, and making it executory to the amount of the judgment on all and singular the lumber sequestered and ordering that the same be seized and sold to pay plaintiffs’ demand and all costs of sequestration.” Inquiry as to the legality of the sequestration and its scope is by this judgment cut off. If this be true, then the case is left as one wherein plaintiffs with a just claim for two thousand dollars against defendants have properly sued out and executed a writ of sequestration, but have improperly sued out and executed a writ of attachment for the same debt. The two writs seem apparently to have issued at the same time, to have been executed on the same property, and also to have been bonded at the same time, so that even had the plaintiffs not caused the attachment to issue the property would have been taken into the hands of the sheriff out of that of the defendants, under what, as matters stand, we must hold to have been a legally issued writ of sequestration. •The only act, therefore, from which the defendants could claim damage and inj ury, would rest in the fact of the issuing of double writs. Unquestionably the writ of attachment issued wrongfully. That fact was decided adversely to plaintiffs in their own case, and that question rests just where the judgment left it. We do not understand that defendants’ appeal from the judgment rendered adversely to them on the reconventional demand brings up for review here the action of the court dissolving the attachment. Defendants went into the trial of their reconventional demand with that issue excluded and as an issue already disposed of, and they went into trial solely upon the question whether or not as the result of that illegal attachment they had suffered damage and injury, and if so, what it was, and to what extent it had been suffered. They occupy no different position in this particular regard than if they had not reconvened, but had, just after plaintiffs’ suit had been decided, and decided just as it was, brought a direct suit for damages for an illegal attachment. Had such a course been followed, the defendants in such a case could not have collaterally attacked the judgment dissolving the attachment, and defendants in this reconvention can not do so here.

If the sequestration taken out had been executed on property other and different from that which was seized under the writ of attachment, and plaintiffs’ judgment, maintaining the sequestration, had only extended to such property, matters would have been left free and open to dispute as to the attachment and its effe'cts and consequences, but the attachment seizure, as we have seen, was no broader, either as to time or property, than the sequestration seizure or divestiture of possession, and the judgment covers and maintains the sequestration on the whole property sequestered. There is no inventory in the transcript of the property seized, but the appraisements which were made and the bonding which took place show that both writs were executed on the same property. Under such circumstances, we know of no process by which we could come to adjudge damages to the plaintiffs and discriminate between the effects of the sequestration and those of the attachment. The illegality of the attachment would be met at every step by the legality of the sequestration.

In one respect defendants are entitled to relief. They were entitled to have the attachment set aside if illegally issued. They employed an attorney for that purpose who succeeded in having this done. It is admitted that his services were fairly and legally worth two hundred and fifty dollars, and to this amount defendants were entitled to judgment in the lower court.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the verdict of the jury, rendered in this case, rejecting defendants’ reconventional demand, be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the defendants do have judgment upon their reconventional demand against the plaintiffs, the Watkins Banking Company, for the sum of two hundred and fifty dollars. It is further ordered that plaintiffs and appellees herein pay the costs of the reconventional demand in both courts.


source: Caselaw Access Project

author: Nicholes, C. J.

license: Public Domain

text:
    No. 11,768.
    W. B. Torian, President of the Police Jury, et al., vs. Numa Shayot.
    on Motion to Dismiss.
    Where suit is brought against a party for payment of a license imposed by an ordinance of the police jury of a parish, and defendant defends on the ground that the police jury has no jurisdiction for purposes of taxation over the locality in which he lives, and is estopped from exercising authority therein, the issue between the parties is one involving the legality of the tax, and falls within the appellate jurisdiction of the Supreme Court.
    On the Mekits.
    Act No. 110 of 1880 “ prescribing the manner of altering, changing or amending the charters of cities and towns in the State of Louisiana, the city of New Orleans excepted,” went only to the extent of providing that such cities might lay aside their existing systems of municipal regulation and control, and assume others, not inconsistent with the Constitution and laws of the State, which were more in accordance with their ideas of propriety and convenience. It-had no relation to the subject of boundaries or territory. It contained no reference to the relations between their inhabitants and the State or parish, and conferred no power, express or implied, to alter or destroy those relations.
    When a political corporation is vested with public powers and charged with public duties, in a given locality, it can not be permanently superseded in the exercise of those powers, and the performance of those duties, by having for a time acquiesced in and recognized as legal the exercise of its own powers and authority in the territory by another corporation, when the power and authority exercised were, in reality, without law to support it. Political powers and duties can not be thus transferred, acquired and discharged.
    APPEAL from the Seventeenth Judicial District Court, Parish of Lafayette. Allen, J.

    Plaintiffs allege that under the laws and Constitution of the State, the power of taxation has been delegated to the parish, and through its police jury it has levied, according to law, a graduated license tax, on occupations and business enterprises, for the year 1893. That the defendant has been engaged since January 1, 1893, in the business of keeping a barroom or coffee house, where alcoholic and malt liquors, to be drunk on the premises, are sold, and that he is also engaged iu selling groceries and other merchandise at retail; that for each of said occupations he owes a license tax under the ordinances of the police jury, legally passed and published- — one hundred dollars on the barroom, and ten dollars on the grocery and merchandise business. That defendant’s business is carried on within and-under the territorial jurisdiction of the parish, as fixed by law, and outside the limits of the corporation of Vermilionville (now known as Lafayette), as fixed by Act No. 111 of 1869; that the defendant is delinquent and refuses to pay.
    Defendant answered that said town is regularly incorporated under act approved March 11, 1836, Act No. 111 of 1869, Act No. 7 of 1878, regular session, and under the influence of Act No. 110 of 1880; that the police jury has no jurisdiction over said town except, (1) over the court house and jail; (2) to impose and collect the taxes to repair or build a court house and jail; (3) to impose and collect the tax for criminal expenses, as provided by Act No. 92 of 1878, regular session. That the attempt to collect a parish license from him, at this time, is illegal and in contravention of his constitutional rights, divesting vested rights, and impairing the obligation of contracts, in violation of Article 155 of the Constitution; that he bought property in said town and went into business, knowing that the police jury was without jurisdiction therein, except as above mentioned; that he never would have acquired property and gone into business in said town if the police jury’s jurisdiction and control had existed thereon for all purposes, and to thereby subject himself and property and business to double.and treble burdens of taxation, and to dual jurisdiction; and further, he specially pleaded that the police jury have recognized the territorial limits of the town of Lafayette as they now exist, and are estopped from denying that the entire charter of said town is in full force and effect throughout the territorial jurisdiction of said town. That there is no law in existence authorizing the levy and collection of such license taxes as are herein sought to be collected, and that the action of the plaintiff in attempting to collect such license tax is illegal, vexatious, unconstitutional and oppressive, and in direct violation oí law. Furthermore, that the State of Louisiana has recognized the territorial limits of the town of Lafayette as they now exist.
    The District Court rendered a judgment rejecting plaintiffs’ demand, and they appealed.
    Defendant moved in this court to dismiss the appeal on the ground that ‘‘this court is without jurisdiction ratione materise, the sum demanded being one hundred and ten dollars for a license, and the legality or unconstitutionality of the levy of any license tax is not called in question, nor does the judgment appealed from, which rejects the plaintiffs’ demand, adjudge any tax, toll, or impost to be legal or illegal.”

      M. T. Gordy, District Attorney, and O. C. & Julian Mouton for plaintiff's and appellants:
    I.
    By act approved January 17, 1823, the Legislature created the parish of Lafayette, and invested it in said act and by subsequent legislation with the power of property and license taxation. R. S. of 1870, Sec. 2743, No. 8; Const, of 1879, Art. 209; Laycock vs. City of Baton Rouge, 36 An. 328; Favrot vs. Baton Rouge, 38 An. 230; Const, of 1879, Art. 206; Act 150 of 1890, Sec. 14; 46 An. 449, Mayor vs. White.
    The power of taxation so delegated to the parish necessarily extended to every thing and every person through its territorial limits. Am. and Eng. Eney. of Law, Vol. 25, p. 18.
    Under the general laws of the State, the police juries of the parishes are vested with power to tax property and persons within the limits of incorporated towns, unless such power is withheld or withdrawn by express legislative provision. Benfield vs. Hines, 13 An. 420; Maurin vs. Smith, 25 An. 445; Iberia vs. Chiapella, 30 An. 1143.
    The power to determine in the first place the boundaries of a municipality, and subsequently to alter them, resides, in the absence of constitutional restrictions, in the body possessed of the power of incorporation — the Legislature. Its supreme control includes the power to prescribe and enlarge or restrict, from time to' time, the territorial limits of municipal corporations. Am. and Eng. Ency. of Law, Vol. 25, pp. 1001, 1002; 27 An. 156; 28 An. 850.

      Incorporated towns can nob change their boundaries or annex contiguous territory without being expressly authorized to do so by general statute. Const, of 1879, Art. 46; Am. and Eng. Ency. of Law, Vol. 15, p. 1019; Commissioners Co. vs. Carter, 2 Kan. 115; Atchison, etc., R. Co. vs. Maguilkin, 12 Kan. 301; Am. and Eng. Ency. of Law, Vol. 15, p. 1020, foot note 3; Id., pp. 1001, 1002; 1 Swan (Tenn.), 164; 3 Head (Tenn.), 318; 38 An. 271; 45 An. 34.
    In this State the powers of parishes and municipalities are merely administrative, except where express authority has been given by law. 3 An. 294.
    Annexation proceedings without statutory authority are absolutely null for want of jurisdiction or power, and call not even be validated by subsequent statute for purposes of taxation. 2 Kan. 115; 12 Kan. 301; Am. and Eng. Ency. of Law, Vol. 15, p. 1020, foot note 3.
    Even where a statute authorizes the annexation, it is essential that all the proceedings should be in strict conformity with the statute. Am. and Eng. Ency. of Law, Vol. 15, p. 1019; Pensacola vs. Louisville, etc., R. Co., 21 Fla. 492; 100 Ind. 443; 99 Ind. 117; 8 Am. and Eng. Corp. Cases, pp. 512, 636.
    Municipal corporations, where no power is conferred for that purpose, can not enlarge the statutes of the State; and an ordinance inconsistent and in conflict with the general policy of the State is illegal, null and void. 45 An. 34.
    The power to levy taxes is to be liberally construed, while exemption from taxation must be strictly construed. Id., 603.
    Every presumption will be made against the exemption, and nothing can be supplied by intendment or inference. 35 An. 668; 18 Wall. R. 206; 97 U. S. S. R. 666.
    Exemption laws are strictly construed, and the principle applies not to general laws only, but also to special enactments, such as charters of corporations of any class. 34 An. 954; Saunders on Taxation, p. 44.
    The party claiming the exemption must show that his case falls clearly within the exception to the general law. Am. and Eng. Ency. of Law, Vol. 25, p. 159.

      Proceedings by an incorporated town under provisions of Act 110 of 1880 for the purpose of exempting persons and property within its territorial limits from parochial taxation, or for the annexation of contiguous territory and its exemption from such taxation, are ultra vires, null and void. That statute does not give to corporations the power, either express or implied, to annex, and still less to declare same and its inhabitants exempt from the power of taxation previously delegated to the parish. 38 An. 261; Act 105 of 1892.
    Acts of municipal corporations beyond the powers expressly granted are ultra vires, absolutely null and void, and no direct proceedings are necessary to set them aside. Am. and Eng. Ency. of Law, Vol. 15, p. 1100; 45 An. 392; 35 N. J. 381; 29 N. J. 104, 475; 100 Ind. 443; 8 Am. and Eng. Corp. Cases, 636; 2 Kan. 115; 12 Kan. 301: 1 Swan (Tenn.), 164; 3 Head (Tenn.) 318; 45 An. 34; 38 An. 261.
    Should it be held that the annexation proceedings can not be attacked collaterally, this would not necessarily operate a withdrawal of parochial taxation over the additions and their inhabitants. The defacto town government might remain and the exemption be denied. 13 An. 420; 25 An. 445; 30 An. 1143; 42 An. 406; 38 An. 261.
    II.
    Defendant’s case does not fall within the constitutional prohibition of divesting vested rights or impairing the obligation of contracts. 35 An. 548; 28 An. 497; 14 L. 395, 406; 12 An. 515; 27 An. 156; 1 An. 162; 32 An. 736, 440; 41 An. 156; 33 An. 981; . 42 An. 605; 5 An. 661; 11 An. 54; 31 An. 292; 38 An. 119.
    Powers delegated to parishes and municipalities for local objects are regarded as trusts confided in the hands in which they are placed, and are not subject to be delegated by the repositories of them. Am. and Eng. Ency. of Law, Vol. 15, pp. 1042, 1043.
    The parishes can not surrender such powers by contract, nor bind themselves not to exercise them whenever it may become necessary; and those dealing with them are charged with notice of the powers they possess. Am. and Eng. Ency. of Law, Vol. 15, pp. 1045, 1046; 28 An. 497.

      The whole community is interested in retaining the power of taxation undiminished, and has a right to insist that its abandonment shall not be presumed in any case where the deliberate purpose of the State to abandon if does not appear. Morgan vs. Louisiana, 93 U. S. 222; Vicksburg R. R. Co..vs. Dennis, 116 U. S. 667.
    Such inferior political organization as parishes and municipalities have not the .inherent power of conferring exemptions. Am. and Eng. Ency. of Law, Vol. 25, p. 157; 35 An. 548; 28 An. 497; 42 An. 605.
    The Legislature can not constitutionally transfer to municipal corporations the power to determine upon what property taxes shall or shall not be imposed. Am. and Eng. Ency. of Law, Vol. 25, p. 607, foot note 2.
    The power delegated to the parishes to tax all the property within their territorial jurisdiction must be exercised by them in obedience to the requirement of equality and uniformity in taxation expressed in the Constitution; and in matters of license taxation, all of a class to be taxed alike. Const., Art. 203; Saunders on Taxation, p. 24; Am. and Eng. Ency. of Law, Vol. 25, pp. 606, 607; 31 An. 637; 37 An. 104.
    The acts of a police jury beyond its lawful powers are ultra vires, and it is not estopped from setting up that plea, or its want of power under its constituent statute, to do a given act in excess of its corporate power and authority. Am. and Eng. Ency. of Law, Vol. 15, p. 1100; 45 An. 392; 35 An. 548; 28 An. 497; 42 An. 605.
    The power to change, alter, restrict or enlarge the boundaries of municipal corporations is lodged in the Legislature, and the corporate authorities can in no case change the boundaries without the consent of the government. When so authorized it must be exercised in the manner prescribed, and by the officers designated in the statute. Am. and Eng. Ency. of Law, Vol. 15, pp. 1001, 1002; Norris vs. Mayor, etc., of Smithville, 1 Swan (Tenn.) 164; McCallie vs. Mayor of Chattanooga, 3 Head (Tenn.) 318; 100 Ind. 443; 8 Am. and Eng. Corp. Cases, 512, 636; 99 Ind. 117.
    An individual can not be estopped from contesting the validity of annexation proceedings when there is a want of jurisdiction in the council to make the order; nor is a police jury, by recognizing such proceedings, estopped from contesting their validity when there is a want of jurisdiction or power in itself or in the council. Strosser vs. Fort Wayne, 100 Ind. 443; 8 Am. and Eng. Corp. Cases, 636; 45 An. 392; 2 Kan. 115; 12 Kan. 301.
    When a police jury adopts an ordinance upon the report of a joint committee from itself and a town council, by which it proposes to recognize annexation proceedings inaugurated by the town, and declare that the inhabitants of the annexed territory do not' owe their licenses to the parish as they did previously, or any other acts by which these are recognized, is an attempt on the' part of said police jury to exempt such parties and their property from taxation, or i relinquishment of the taxing power, or a ■partial surrender and renunciation of political powers vested in it by the Constitution and laws. Such an ordinance or other acts of similar import are absolute nullities, of which all persons must take notice, create no estoppel against the parish, and no repeal thereof is necessary before suit is instituted for the collection of the parish taxes. 3d Municipality of New Orleans vs. The Ursuline Nuns, 2 An. 611; City of New Orleans vs. St. Charles R. R. Co., 28 An. 497.

      Conrad De Baillon, Wm. Campbell and C. D. Caffery, Attorneys for Defendant and Appellee:
    A charter may be amended, and the name of the place and the governing body may be changed, and its boundaries altered, while in law the corporation remains the same. This can be done by a general law operating upon the whole State, or, in the absence of constitutional restriction, by a special act. 1 Dillon on Mun. Corp., Sec. 52.
    The General Assembly of Louisiana was authorized to enact a general law,, such as Act 110 of 1880, operating upon the whole State except New Orleans. Dillon on Mun. Corp., Sec. 126.
    Act 110 of 1880 authorizes towns to amend, alter and change their charters; and includes the extension of the territorial limits.
    Acts of 1836, pp. 126 to 129, incorporating the town of Vermilion-ville, in the parish of Lafayette, exempts the persons and property within its limits from parish taxation and licenses. This exemption operates on the extensions to said town. 1 Dillon on Mun. Corp., Sec. 52.
    There can not be, at the same time, within the same territory, two distinct municipal corporations exercising the same powers, jurisdiction and privileges. Id., Sec. 125.
    The police jury, having recognized these extensions under Act 110 of 1880, are now estopped from contesting or questioning the action of the City Council in 1884. Cooley Const. Lim., page 812, note 2; 15 Am. and Eng. Ency. of Law, 965, note “Acquiescence by State,” also note 2.
    The corporate character of a municipal corporation can not be questioned collaterally. Cooley Const. Lim., p. 312, note 2; 15 Am. and Eng. Ency. of Law, pp. 964, 965 and notes.
    No one can stand in judgment for the police jury unless specially authorized. 38 An. 630, Police Jury vs. Mayor; 38 An. 704, Police Jury vs. Wise.
    The town of Lafayette is not a party to this suit, and yet its municipal autonomy is sought to be destroyed by a collateral attack.
    The town of Yermilionville was incorporated in 1836. Acts of 1836, pp. 126 to 129.
    Section 13 of that act exempts the town from parish taxation and licenses.
    The charter was amended in 1869, and its territorial limits were extended. Act No. 111 of 1869, pp. 142, 144.
    The powers of the City Council were enlarged in 1878, by Act No. 79 of the regular session, pages 129 and 130.
    In 1880 the General Assembly passed Act No. 110, entitled “ An act prescribing the manner of altering, changing or amending charters of cities and towns in the State of Louisiana (the city of New Orleans excepted). ”
    The owners of the Mouton, Mills and McComb additions had said additions surveyed, divided into town lots, and had plans made, deposited and filed in the recorder’s office as additions to the town of Yermilionville.
    In 1884, acting under the provisions of Act No. 110 of 1880, a majority of the property tax-payers signed a petition asking the City Council to have the charter amended in. certain particulars; among others, to change the name of the town irom Vermilion-ville to Lafayette, and to extend the territorial limits of the town.
    The City Council acted on this petition, and reported amendments.
    Commissioners for said election were appointed, and the result of the election proclaimed.
    The City Council then proceeded to improve those additions by draining them, grading streets, making sidewalks, building plank pavements, lighting the streets and thoroughly policing those additions.
    On October 4, 1884, the police jury appointed a committee of one (C. D. Caffery, Esq.) to confer with a like committee of one (fm. Campbell, Esq.) appointed by the City Council of the town of Lafayette, in regard to the collection of licenses for the year 1884 in the new incorporated .limits of the town of Lafayette.
    These committees conferred and reported the result of their conference to the police jury. They reported that said licenses were due to the town of Lafayette; and the police jury accepted and adopted the report.
    Since which time the police jury has never exercised any jurisdiction over the territorial limits of the town of Lafayette as established by the election held under Act 110 of 1880.
    The only jurisdiction exercised by the police jury was to have collected the tax for criminal expenses, authorized by Act No. 92 of 1878, regular session, which taxes the police jury has annually levied and collected.
    The police jury levied and collected the three mills criminal tax for the years 1884, 1885, 1886, 1887, 1888, 1889, 1890, 1891, 1892, on the property situated in the town of Lafayette, including the property in the Mills, Mouton and McOomb additions.
    The police jury required the town of Lafayette to pay the costs- of inquests in those additions; and in one case, where the police jury had paid the costs of an inquest, the police jury required the City Council of the town of Lafayette to refund the amount thus paid by the police jury, which was done.
    The police jury yearly recognized the territorial limits of the town of Lafayette; they conferred with the committees appointed by the council for drainage, establishment of potters’ field; purchased with said town a plot of ground fo a potter’s field.

      Defendant testifies that he owns property in the McOomb addition. That he would not have gone into business if he had known that the parish had jurisdiction over that territory.
   On Motion to Dismiss.

The opinion of the court was delivered by

Nicholes, C. J.

The plaintiff, claiming jurisdiction over the locality in Lafayette parish, in which defendant lived, for purposes of taxation,passed an ordinance levying licenses for the year in 1893, the parish, specifically naming besides the locality in question, and directing the tax collector to collect the same, and in ease of refusal to pay, instructing him to institute suit for that purpose. The tax ■collector having instituted suit against defendant for a license, was met by the defence that the parish of Lafayette was without jurisdiction over the locality, and without power or authority to •impose the license, and that it was estopped from so doing. The issue between the parties was one directly involving the legality of the tax, and the Supreme Court has jurisdiction over that issue. 'The motion to dismiss is overruled.

On the Merits.

The town of Yermilionviile, in the parish of Lafayette, was incorporated by act of the Legislature in 1836.

The thirteenth section of the act provides that “ the police jury ■of the parish of Lafayette shall no longer have or exercise any jurisdiction within the aforesaid limits (the limits of the town as fixed by the act), except it be over the court house, jail and other property belonging to the parish; provided, that whenever it shall be neces.sary to levy a tax for the purpose of building or repairing the court house or jail of said parish the property within said town shall be equally taxed with)the property of the parish.”

The charter of the town was amended subsequently by Act No. Ill of 1869 and Act No. 79 of 1878, but neither of these acts 'by their provisions, affected the thirteenth section of the original act .above quoted.

They simply enlarged the powers of the corporation, and extended its territorial limits. The new Constitution of Louisiana went into •effect on the 1st of January, 1880.

In the year 1880 the Legislature passed Act No. 110, “ prescribing the manner of altering, changing or amending the charters of cities and towns in the State of Louisiana, the city of New Orleans excepted,” and in 1882 it enacted Act No. 49, “ To prescribe the manner in which cities and towns may obtain charters or acts of incorporation.”

In 1802 anether act was passed, known as Act No. 105, entitled “An act prescribing the manner in which cities and towns in this State, the city of New Orleans excepted, may extend their territorial limits so as to annex thereto and include therein lots of lands, contiguous and adjacent to such cities or towns.”

In March of 1884 certain proceedings took place, haying in view amendments to the charter of the town of Vermilionville, and the extension of its territorial limits, so as to include the Mills, Mouton and MeComb additions. The proposed extension of the limits seems to have been based upon a petition of the persons living upon the lands sought to be brought within the corporation and the proposed amendments upon the petition of tax-payers of the town.

At a session held in March, 1884, the Oity Oouncil of Vermilion-ville appointed a committee to take these matters into consideration and to draft amendments. The committee made a report, submitting amendments, among them one extending the limits so as to include the above mentioned additions, and changing the name of the town to Lafayette.

On March 29, 1884, the mayor issued his proclamation calling for an election by the citizens of the town to pass upon the adoption or rejection of the amendments and fixing May 5, 1884, as the date therefor.

On May 7, 1884, the mayor issued his proclamation announcing the adoption of all the amendments submitted at the election.

From that time the Mills, Mouton and McOomb additions have been treated and dealt with by the Oity Oouncil as forming in every respect a part of the town, mow known as the town of Lafayette, grading the streets, draining and lighting them, making sidewalks, building plank pavements and exercising police powers over them. They have also had representation in the Town Oouncil and they have borne their share of town taxation.

In October, 1884, the police jury of Lafayette appointed a committee to confer with a like committee from the Town Oouncil, in regard to the collection of licenses for the year 1884 in the newly incorporated limits of the town. In November the committee made a report which was adopted by the police jury to the effect “that in the matter of the licenses alleged to be due the parish of Lafayette by persons late of the parish and now of the corporation of Lafayette it reported the said licenses are due the corporation.”

No parochial taxes were levied or collected on the property in the annexed territory from 1884 to 1892, except the three mills criminal tax (for which the towns-people were liable under the provisions of Act No. 79 of 1878), none of it being included in the assessment for the years 1887, 1888, 1889, 1890, 1891 and 1892, and the police jury, sitting as a board of reviewers for those years, approved the assessment rolls (with that property omitted) as the proper basis for parochial taxation. No one in the annexed portion has paid parish licenses since 1884.

The police jury in 1890, 1891 and 1892 instructed the tax collector to collect licenses in these additions, but no steps seem to have been taken in that direction until the institution of the present suit.

The police jury at various times, and in different ways, recognized the legality of the annexation to the town, and the results claimed as legally flowing from it, and these acts are invoked by way of estoppel by the defendant in bar of any attack by the plaintiffs upon the same. No complaint seems to have been made by any parties, either in the old or in the extended limits.

It is not alleged in the petition that the parish is indebted, and that the withdrawal of the right and power of taxation over the persons and property, within the limits of the town extension, would throw unjust and improper burdens upon the balance of the parish for debts created prior to the annexation; but the police jury plants itself squarely upon the ground that under the act of 1823, incorporating the parish of Lafayette, and the acts of the General Assembly relative to the powers of municipal corporations, it was clothed with power to levy and collect taxes throughout the parish, and that that power has not been withdrawn over that portion of the parish included within the limits added to the town. That the annexation was authorized and warranted by no law in existence at the time; the action of the Town Oouncil was ultra vires, and the whole proceeding absolutely null and void, and of no effect. That therefore its own powers remained unimpaired. That being vested with pub-lie powers and charged with public duties it was powerless to yield its powers, or abandon its duties, even if it were so disposed, and no act, either of active affirmance or simple acquiescence, could be invoked as an estoppel.

Plaintiffs do not contest the power of the Legislature to have exempted, as it did, the town of Vermilionville from parish taxation in the original act of incorporation, nor do they contend that when, by legislative act, the territorial-limits were extended, the exemption was not broadened to extend over and cover the extended limits.

What they deny is that the limits have been legally extended, and, even if legally extended, that exemption from parish taxation could flow from the action of the Common Council or a vote of the people. They maintain that such exemption could result only from direct legislative action.

At the time of the annexation proceeding, only two statutes — Act No. 110 of 1880 and Act No. 49 of 1882 — were in existence which had any bearing upon the subject matter. The proceedings were taken upon the assumption that they were authorized by the former act. Was that assumption well founded ?

The town of Vermilionville was, at the date of the proceedings, an existing town, with powers and limits fixed by the Legislature itself. It will not be pretended that the limits fixed by the charter could have been extended, unless authority to that effect had been conferred by express legislative authority. The act which is relied upon as conferring such authority, prescribes the manner of altering, changing or amending the charter.”

It says nothing, in terms, as to a right of extending the boundaries, and the authority to broaden the limits of the town was not granted, unless it is to be found in the words altering, changing or amending the charter.”

In Tax Collector vs. Dendinger, 38 An. 263, this court, referring to that act, said: “ It evidently deals with towns as already constituted with powers and privileges defined and fixed by law, and gives them the power, by appropriate amendment, to regulate their internal organization, and the modes and agencies by which these powers may be exercised. It contains no reference whatever to the relations between their inhabitants and the States or parishes, and confers no power, express or implied, to alter or destroy those relations.”

In State vs. Warner, 31 Pac. 26, the Supreme Court of Washington, after stating that the issue presented to it was, whether or not the enlargement of the territory of a city was or was not an “ amendment of its charter” under a constitutional article permitting certain cities to frame charters for their own government, and providing for amendments to such charters, held that the scope of the constitutional provision went only to the extent of providing that such cities might lay aside their existing system of municipal regulation and control and assume others, not inconsistent with the Constitution and laws of the State, which were more in accordance with their ideas of propriety and convenience, and that it had no relation to the subject of boundaries or territory, and that a general law was necessary upon this subject. We have not the Constitution of that State before us, but its terms on the subject matter seem to be fully as broad as those of Act No. 110 of 1880.

The decision quoted is closely in line with that of Dendinger, and the subsequent passage by the Legislature of Louisiana of Act No. 105 of 1892 bearing specifically upon the matter of “boundaries” shows that that body was aware, as was the court of Washington, of the necessity of additional legislation to convey the power claimed. In People vs. Oakland, 28 Pac. 808, which was an action in the nature of a quo warranto brought by the Attorney General for the purpose of ousting the defendant from municipal jurisdiction over certain territory alleded to be outside of the charter limits, the Supreme Court of California said that the stipulation of the parties in the ease showed that the city of Oakland was a municipal corporation, and as such claimed and exercised the right and power to govern and tax the inhabitants of a certain territory in addition to that described in its charter. That the right and power thus claimed and exercised was a franchise in addition to and distinct from that of being a corporation, and the exercise of such power by a municipal corporation over the inhabitants of territory outside of the charter limits was the usurpation of a franchise, for which the Attorney General was authorized to bring an action in the name of the people.

In the case at bar, the right and power claimed by the town of Vermilionville was a franchise claimed in addition to and distinct from that of being a corporation. As a “corporation ” it existed by legislative acts, and its “charter” after the attempted annexation was still by virtue of the same acts. We are not here referring to the amendments properly so called, which were made at the same tim.e the annexation proceedings took place, which really modified the charter.

There can be no question, therefore, as to the right of the State, through proper proceedings, to have questioned judicially the existence of such a claimed power of extension. It has not, as we have said, thought proper to have done so up to the present time. In the case last cited, where the city of Oakland, having at one time by ‘ ‘ an amendment of its charter ’ ’ annexed certain territory to it, had subsequently (under a constitutional provision providing “ that when a city charter has been presented to the Legislature, and approved, it shall become the charter and organic law of such city and shall supersede any existing charter, and ail amendments thereof”), by the adoption of a “new charter,” cut off or detached from the town the annexed portion, it was held that the original annexing of the territory was “an amendment to the charter,” and therefore the same territory was legally detached, under the provision that “all amendments to the charter” should be superseded by the new charter. The case was decided under special circumstances, which are discussed and commented on in State vs. Warner, which circumstances the court declared removed it from being cited as a precedent therein.

The special features alluded to not appearing in the present cáse, it furnishes us, in our opinion, no guide in reaching our conclusions. Neither Act No. 49 of 1882, standing alone, nor that act blended or connected with Act No. 110 of 1880, are a sufficient basis for the annexation claimed. Act No. 49 of 1882 evidently refers to towns and villages up to that time unincorporated, as for instance Gretna, in the parish of Jefferson, and not to towns existing already under legislative charters.

The next questions are: (1) Whether, under this condition of law and fact, the parish of Lafayette would have had the right to have proceeded directly on in the performance of its duties under its legal powers, regardless of the annexation, forcing parties who might set up rights based upon the hypothesis that the annexation proceeding had ousted the parish of its jurisdiction in the annexed territory to have recourse to legal proceedings to make good their claim, or whether it would have been forced to halt, and have been driven either to an action by the police jury to have the proceedings set aside, or declared null, or to have sought relief through a public action by the State through the Attorney General; and (2) whether, if it had originally the right to have ignored the annexation, and to have forced the parties to have come in by way of defence, whether it has lost any of its rights in the premises by its subsequent conduct, and if so, to what extent it has done so.

If there had been legal authority for the annexation of territory to the town of Vermilionville through designated formalities, which had not been strictly followed, the first of these questions would have been presented to us under a phase different from that in which it is actually before us, where it is claimed that there was an absolute want of power and authority to do the act whieh was attempted. It is from this standpoint we have to discuss matters.

In Atchison & Nebraska Railroad Co. vs. Maquilkin, 12 Kansas, 303, it appeared that the city of Troy was incorporated in 1860, under a special act of the territorial Legislature of Kansas, entitled “ A bill to incorporate the city of Troy.” Under the act certain territorial limits were fixed, and under its act of incorporation it had no power to extend its territorial limits. The city was governed by this act until 1871, when it became a city of the third class by virtue of the third class city act of 1871, and at the time of the suit it still continued to be governed by the third class city act. In 1869 the mayor and City Council of Troy passed an ordinance ex - tending the boundaries of the city. Upon the hypothesis that the ex - .tended limits fell legally within the jurisdiction and under the powers of the town, the latter in 1872 taxed certain property within those limits. The owners of the property enjoined the collection of the tax upon the ground that the annexation attempted was void for want of authority on the part of the city to annex territory. It was claimed on behalf of the city that the Legislature had in 1873, after the injunction was issued, validated the proceeding. The Supreme Court held the ordinance void. It said: The city at the time the ordinance was passed did not have any power to extend, its corporate limits. At the time there were no cities of the third class. The first act of the Legislature authorizing the incorporation of cities of the third class was passed in March, 1869, and did not take effect until July, 1869. Even if the city had organized as a city of the third class, as it had the right to do, under the third class city act on and after July 12, 1869, and by that means obtained the power to extend its corporate limits, still such organization would not have made valid the prior invalid ordinance attempting to extend the boundaries of the corporation passed before said act was passed or took effect.

And neither could the event of the city of Troy becoming a city of the third class under and upon the taking effect of the third class city act of March 2, 1871, with power to extend its limits, make valid said previous invalid ordinance. The annexation of the property to said city was void, not for any irregularity merely in the annexation proceedings, but void because the city had no power to annex it. The tax levied was void, not for any irregularity merely in the tax proceedings, but void because the city had no power to tax it. Both the annexation of said property and the taxing of it were void for want of jurisdiction over the subject matter.

Referring to the act of the Legislature relied on the court said: “Retrospective statutes of a remedial nature, curing the defective execution of some power really possessed by the person, tribunal or officer attempting to exercise it, have often been held valid. But a retrospective statute attempting to create a power, or to cure a de - feet of jurisdiction, we believe, has never been held valid.” Citing Shawnee Co. vs. Carter, 2 Kansas, 115, 134, and Cooley’s Constitutional Limitations, 383.

The case at bar presents no question as to the effect of a curative or validating statute. None is claimed; the only claim urged is that the police jury, by its course, has estopped itself from questioning the legality of the annexation, and cut itself off from the exercise of its legal powers. We do not think a political body capable of surrendering its powers absolutely (Bar View School District vs. Linscott, 33 Pacific Rep. 782), though it may, perhaps, through its laches or conduct in some particular instance, temporarily and specially, be controlled in the exercise of those powers. We think the police ju y was free to resume the exercise of the powers which it temporarily suspended through the institution of this suit.

It does not follow from this that it can ignore acts in the past which have been predicated upon its conduct, and which led parties to deal upon the basis of the view of the situation of affairs which it itself took. Plaintiffs speak of the situation of the defendant, and of those placed in a situation similar to his own, as being one of exemption from taxation. There is a misuse of terms in so stating. The defendant has been paying taxes to the town. The power of taxation remained in the parish, but it permitted its exercise, during several years, to be transferred to other instrumentalities. The public burdens of those parties were simply shifted as to payment from one political corporation to another. If the parish for a number of "yerrs permitted the town to perform duties, afford protection, and incur liability, which properly should have fallen upon the parish, and extended to people within the annexed limits none of the advantages of the parish government, and during those years permitted the town to make demand of payment of licenses and taxes of those persons, and to be paid for the same, it would not be equitable or consistent with justice for the parish to force them to pay a second time, and for benefits not received at its hands. The parish, under such circumstances, would practically have permitted, under such a condition of affairs, the town to have acted for and on its behalf in dealing with the people of the annexed territory, and the amount paid to the town would (if benefits could be gauged)-, be found probably nothing more than a fair equivalent for duties performed in its stead by another. Felix vs. Wagner, 39 An. 394.

We have, however, to deal only with the situation of parties for the year 1893. In the beginning of that year the police jury, directly, positively and in unambiguous terms, asserted its suspended powers, and with it (we assume), its suspended duties, and formally announced by legal ordinance, duly enacted and legally promulgated, that it would exercise its jurisdiction as to licenses over this disputed territory.- The license ordinance of 1893 was expressly framed to place beyond the possibility of a doubt the purpose of the police jury to maintain its authority in this regard. If parties subsequently to this publication, and after special demand made upon them to pay their license to the parish, thought proper to decline doing so, and to pay the town, they did so at their own risk. The only question we are called on to decide here is whether the parish of Lafayette had jurisdiction for purposes of taxation for the year 1893 over persons and property within the limits of the territory attempted to be annexed to the town of Vermilionville in 1884, and whether a license ordinance levying licenses within that territory for the year 1893 was legal.

We are constrained to answer both questions in the affirmative, greatly as we regret to be forced to disturb existing conditions. From the reliance placed by defendant upon the case of Felix vs. Wagner, 39 An. 394, we are led to suppose that possibly the police jury wards of Lafayette parish do not extend into the annexed limits of the town, but if this be actually the case, the record does not show it.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the judgment of the District Oourt be and the same is hereby annulled, avoided and reversed, arid it is now ordered and adjudged that the license demanded in this case by the parish of Lafayette, of the defendant Numa Schayot, be and the same is declared and decreed, as to its legality and constitutionality, legal and constitutional, and this cause is hereby remanded to the District Oourt for further proceedings according to law, costs of appeal to be paid by the appellees; costs of the lower court to abide the final judgment in the cause.


author: Watkins, J.

text:
    No. 11,569.
    J. W. Brown vs. B. D. Vittur.
    In order that a plaintiff may maintain an action for malicious prosecution, three things must concur:
    1. The suit must have terminated, after trial of its merits, in favor of the accused.
    2. The motive must have been malicious.
    3. The suit must have been instituted without any probable cause.
    The discharge of the plaintiff by the committing magistrate is prima facie evidence of the want of probable cause, and the burden of proof is shifted on the defendant.
    Want of probable cause is presumptive evidence of malice.
    APPEAL from the Civil District Oourt for the Parish of Orleans. Rightor, J.

      Louque & Pomes for Plaintiff and Appellee.

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

Watkins, J.

This action is for the recovery of ten thousand dollars damages for a malicious prosecution, the plaintiff’s petition alleging his arrest under an affidavit made by the defendant, and his subsequent imprisonment thereunder; all, through malice and want of probable cause.

The defendant’s answer admits the affidavit, arrest and imprisonment, but avers that he acted without malice, and upon probable cause.

On the trial there wa's judgment in favor of the plaintiff for the sum of one hundred and twenty-five dollars, and defendant has appealed.

Plaintiff and appellee filed an answer to the appeal, and requested an amendment of the judgment in his favor, so as to award him the sum of ten thousand dollars originally claimed; hence as the case now stands, it is just in the same position it was in the first instance.

It appears from an affidavit which is appended to the transcript by consent of parties that the defendant, Vittur, lodged in the First Recorder’s Court, on the first of August, 1898, a complaint against the plaintiff, to the effect that he did “ feloniously take, steal and carry away sixteen feet of shafting of the value of fifteen dollars, and eighteen feet and two inches of gas pipe, of the value of ten dollars * * * the property of the affiant,” the charge being one of petit larceny.

On this state of facts the averments of the plaintiff’s petition are that, under said affidavit, he was arrested, locked up in the parish prison as a common thief, and his pockets searched and his money taken away from him; and, being ‘ ‘ unable to hire a messenger to request some of his friends to sign a bond for his release, * * * he lingered in the parish prison during four days among the criminals.”

They are, further, to the effect that he “was finally bailed out, and his case was called up on the 18th of August, 1898, when he was honorably acquitted.”

His petition affirms “ that he has always been a good and honest citizen; that he has never been arrested for any offence, and that his reputation among his fellow-men has never been impugned.”

He further avers that “he is compelled to labor for his living, being a machinist and engineer — an occupation requiring the confidence of his employers.”

He thereupon charges that his wrongful arrest and imprisonment in the parish prison upon “false charges ” has “humiliated him and injured his feelings to the extent of ten thousand dollars,” and he avers that the defendant, Vittur, made said affidavit through malice and without probable cause.

It is evident that the sole question is, whether, as plaintiff affirms, and defendant denies, there was, on the part of the latter, malice and want of probable cause in swearing out the affidavit and procuring the arrest of the former.

This is the issue the defendant was called upon to meet with proof. The arrest and confinement in the parish prison were the necessary consequences of the plaintiff’s arrest; there is no charge, or intimation even, that the defendant was party to the act of his valuables being taken away from him while under arrest, or that same were taken away for the purpose of depriving him of the means of procuring a messenger to send for his friends, in order to procure assistance and security on his bond.

Attached to the petition is a copy of the evidence that was adduced on the trial in the Recorder’s Court, and amongst other testimony that of the defendant, who was the prosecuting witness in that case. The substance of which is as 'follows:

That the shafting and pipe described in the affidavit belonged to him, and that other persons had informed him that Brown (the plaintiff) had moved it away. Said it was situated in the yard of a house on Gravier street, and was worth twenty-five dollars. That he had sold the engine to one Sturm, but had not sold the shafting.

That of the proceeds of the sale Brown received one hundred dollars and he had received four hundred dollars in cash and notes.

Another witness states that all he knew about the transaction was that when he arrived he “ found the stuff lying on the banquette in front of the gate and Mr. Brown was standing there with it. That he had the stuff picked up and put back in the yard, and told him he could not get the machinery without an order, and be believes he brought it to Mr. Weber.”

Another witness states that Brown came to him and said he wanted to use the shafting for rollers for moving a safe. That he (witness) walked to the street corner and back, when he found that Brown had moved the things on the banquette. He further states that he had given him an order for the things, he having claimed that he had forgotten them when he took the gas engine. Witness states that he refers to the shafting and gas pipe that was in the house.

On this summary of the evidence the plaintiff was discharged, with the statement that no case had been made out against him.

On the trial of the instant case, however, the testimony was very greatly amplified, and the facts were gone into more in detail.

The facts, as we gather them from the record, as they are related by plaintiff’s witnesses, seem to be as follows:

That the defendant was the owner of a gas engine, which he desired to dispose of, and this fact was communicated to Brown, the plaintiff. The gas engine was at the time in the possession of John Weber, who had placed it in his yard. Being informed of Vittur’s intention to sell, Henry Sturm became the purchaser of the gas engine and everything belonging to it; and, subsequently, employed Brown, the plaintiff, who is a professional machinist, to erect the gas engine in his shop. That, after the sale had been completely consummated, Vittur gave Brown an order on Weber to deliver “ the gas engine and everything belonging to it.” That Brown subsequently “gave the order to Weber, who thereupon delivered the gas engine and everything belonging to it, with the exception of the shafting and gas pipe, which was left on account of its not being of much value, and because the wagon could not carry any more.’ ’ (Our italics.)

That Brown then informed the foreman in charge of Weber’s yard “ that, in case he needed the shafting and pipes, he would come for them;” and that Weber’s employé replied “ that it was all right,” that all “ he had to do was to raise the bar on the gate and come in.” That, two or three months after the sale of the engine, plaintiff asked Mr. Sturm, the purchaser, to give him those pieces of shafting and gas pipe; and Sturm accordingly gave him an order on Weber for them. That he then went into Weber’s yard and put the pieces of shafting and gas pipe on the sidewalk; “when, then and there, he was informed by Suermann, an employé of Weber, that he could not get them unless he obtained an order from Weber.”

That he then obtained an order from Weber, but when it was presented the foreman refused to recognize it, and demanded an order from Vittur before he would deliver the shafting and pipe.

On the other hand, the facts as related by the defendant’s witnesses are the same, with the important exception that, the shafting and pipe did not belong to the gas engine that had been sold to Sturm at all, but belonged to and formed a part of a steam engine that was in Atlanta, Ga., and same were of considerable value.

As a witness, the defendant made this positive statement, viz.:

Q. Now as to that piping, what kind of piping was that?

A. It is a two-inch steam pipe which I used for a twenty-five horse-power engine which came from my factory in Atlanta, Ga. That steam pipe was never used in this State and never had anything to do with that gas engine; and I suppose Mr. Brown ought to know it, because Mr. Brown put up that steam engine for me himself. He knows it very well if he wants to.

The testimony of the defendant is substantiated by another witness, who says:

Q. Do you know where Mr. Vittur got that shafting from?

A. Yes; he got it from Atlanta, Ga.

Q. Do you know what that shafting was used for?

A. It was used to drive machinery.

Q. Do you know what kind of machinery it was used to drive?

A. It was used to drive a grinding stone. It came from a steam engine that never had been in New Orleans. I moved that shafting myself and some other machinery from the Northeastern railroad depot. I moved two dray loads.

Q. Do you know anything about that pipe?

A. Yes, it belonged to that steam engine, too. I moved it from the Northeastern depot to the shop.

# i{s sj« if: # *

Q. So that you are positive that that particular shafting and piping did not belong to the engine which Mr. Vittur sold to Mr. Sturm?

A. No, it did not; it came from Atlanta, Ga., and we had it in the shop, but as we had no room for it there, Mr. Vittur put it at Mr. Weber’s place.

His testimony is further supported by the statement of another witness — an agent for the sale of gas engines, as follows, viz.:

Q. What is your business?

A. I am agent for the Otto gas engine.

Q,. Did you ever put up a gas engine for Mr. Vittur?

A. I don’t remember. We sold Mr. Vittur a gas engine, but I believe Mr. Vittur had his own people to put it up.

Q. Did you sell him any shafting with that gas engine?

A. No; when we make a contract for the sale of the gas engine we simply sell it as it comes to us from Philadelphia. If there is to be any shafting and pipe furnished we always make a separate contract.

And this is corroborated by the testimony of Mr. Gschwendt, an expert.

He testifies:

Q. Is it customary in the sale of a gas engine to sell gas pipe with it?

A. No. * * *

Q. Shafting don’t go with the gas engine?

A. No, except the crank shaft.

Q. But sixteen feet of shafting don’t go with the gas engine?

A. No, that don’t go with the gas engine.”

He is circumstantially corroborated by another witness, who contradicts plaintiff’s theory that the shafting was old and worthless material. His statement is as follows, viz.:

Then I had my men put those things in the yard and cover them up with lumber. It was a very nice piece of steel shafting, I thought, so I wanted to preserve it.

Q. That shafting seemed to be in perfect order?

A. Yes, sir.

Q. And the pipe was also in perfect order?

A. Yes sir.

Q. I understood you to say that so far from this shafting and pipe being no good, that they were in perfect order?

A. Yes, I considered them in perfect order, and I worked in a machine shop when I was quite a young man.

Taken as a whole, we think the foregoing testimony makes it perfectly clear that the plaintiff was in error in taking possession of the shafting and pipe as parts of the gas engine which the defendant had sold to Sturm some months previously.

It is equally clear that they constituted parts of a, twenty-five horsepower engine which came from the defendant’s factory at Atlanta, Ga., and never were attached to the gas engine at all. It is also evident that this shafting and pipe were new and not old waste material.

But whatever may have been the real state of the case in point of fact, it is evident that the defendant had probable cause for his prosecution of the plaintiff in the Recorder’s Court. He believed himself to be the real and rightful owner of the property of which the plaintiff was found to be iu possession under suspicious circumstances which needed explanation.

In applying the law applicable to the case, we need go no further than the syllabus of the plaintiff’s brief, which we copy and use as our own to find its proper solution, the substance of it being that the prosecution complained of must have been malicious and “without any probabe cause.” The burden of establishing want of malice and the existence of probable cause was placed upon the defendant by plaintiff showing his discharge from the prosecution. We think, however, the defendant has discharged that burden and exonerated himself from imputation of malice.

Before making the affidavit complained of the defendant consulted an attorney, and after placing the facts before him he acted upon that attorney’.s advice. The judgment appealed from is erroneous and must be reversed and annulled.

It is therefore ordered and decreed that the judgment appealed from be avoided and reversed, and proceeding to render such judgment as should have been rendered in the court below, it is ordered and decreed that the demands of plaintiff be rejected at his cost in both courts.


text:
    No. 11,632.
    Succession of T. W. Bothick. Opposition to Provisional Account by William Henry Bothick and Mary Jane Bothick.
    An opposition by heirs of deceased to an account of administration is in the nature of an answer. It is not a separate suit that should have been allotted in the Civil District Court.
    Having for object a recovery from a third or last community of the deceased father a sum of money due them from the first community as heirs of their deceased mother, their demand is for a settlement and not an independent claim for an entire succession in the sense of the Code.
    Viewed in this light, such opposition possesses the characteristics of a personal action, which isproscriptible by ten years from the date the demand of the heirs sprung into existence.
    APPEAL from tbe Civil District Court for the Parish of Orleans. Ellis, J.

      James McConnell and Frank L. Richardson for Testamentary Executrix, Appellee.

      J. S. & J. T. Whitaker and William T. Houston for Opponents, Appellants.
   The opinion of the court was delivered by

Watkins, J.

This suit is a supplement of Bothick vs. Bothick, 45 An. 1382, wherein the plaintiffs were recognized as the legitimate issue of a marriage between the deceased and Catherine Connolly; and it is in the exercise of a reserve that is therein contained that it is brought.

The several objects of this suit are as follows:

1. That they are entitled to demand 'and recover from the estate of their father “one-half of the community” between him and their mother, Catherine Connolly, at the date of her death on the 17th of March, 1866, “its revenues and its price,” alleging same to have consisted of certain lots, with their improvements, situated on Rampart and Lafayette streets, in the city of New Orleans, which cost thirty-eight thousand dollars when purchased in 1861, and the net revenues of which aggregate about ten thousand dollars more; but which lots were sold by their father in July, 1862, in effecting a settlement of the second community which existed between him and Ann J.. Cunningham, deceased, for seven thousand one hundred and twenty-five dollars, to one-half of which they are entitled with legal interest to' the date of their father’s death, December 24, 1892.

They further allege that all the debts of said community have long since been paid by the sale of the personal property, and that their mother’s interest owes nothing, and is not subject to debts since controlled by their father — though same has never been liquidated and formally settled, he having retained and used same.

2. That their father “ could not legally sell or dispose of the one undivided one-half interest of their said mother in said property, to which petitioners are entitled as her sole heirs; and should it appear that an illegal sale or disposition thereof has, at any time, been made by their said father, a resultant trust has been created in their favor in any immovable property since acquired by him by reason of the accession and accumulation of means in his hands resulting from such sale or disposition of said community property enabling him to acquire other property; and that said property, thus acquired, has become the property of' petitioners in place of that disposed of or sold, and their father became their negotiorum gestor, or trustee, charged with the return of said property in kind, with its revenues or equivalent in any other immovable estate, * * * unincum-bered by any debts created by the said T. W. Bothick since the decease of their mother,” etc.

“ 8. That all the immovable property inventoried in said succession, and acquired since said date, is subjected and pledged to the payment and satisfaction of their said claim for their one undivided one-half interest in their mother’s estate as said partner in community, and for its revenues, in preference to all others who may claim an interest in said succession or in the distribution of its property.”

4. That T. W. Bothick died testate on the 24th of December, 1892, making testamentary bequests of the whole of the property of which he was possessed in favor of the widow and the children of the second marriage in certain designated portions; and thereupon they aver and further represent that, “ as the children and heirs of the late Thomas W. Bothick, they are entitled to one undivided one-half of his said succession, and they hereby specially accept the same; and they further aver and say that said will, in repudiating and ignoring, as it does, the marriage of said testator with their mother, Catherine Connolly, is false, null and void, and of no effect in law;” and in so far as it deprives them of their legitime and bequeaths “ two-thirds of the succession to the children named in the will, is also null and void and of no effect, inasmuch as all of said children are illegitimate, having all been born during the existence of the marriage between the slid Thomas-W. Bothick and Catherine Connolly,” etc.

5. That the inventory taken in the succession is incomplete, in that it does not include certain property donated to Olivia T. Tyree during her marriage with the deceased and subject to collation; als'o certain bonds in the hands of the civil sheriff, and certain other immovable properties.

The answer of the defendant, executrix, is a general denial, coupled with a specific denial of the legitimacy of the plaintiff’s heirship, and the existence of any valid marriage between the deceased and Catherine Connolly — averring “that, at the time that said marriage was claimed to be in existence with Catherine Connolly, th6 said Thomas W. Bothick was married and living in marriage publicly with Ann J. Cunningham, the mother of his children.”

She further alleges that if the opponents ever had any claim, it is barred by the prescription of four and ten years.

It further alleges that all the property described in opponent’s petition was sold in 1882, at public auction, when they were person-ally present in the parish, and cognizant of the sale and made no objection; and that they are therefore estopped from now claiming title to said property.

She further represents that if Thomas W. Bothick was ever married to Catherine Connolly, that he was again married to Ann Cunningham; and again married, after her death, to the respondent; and that whatever rights opponents had, arose at the dates of said marriages, respectively, and that more than ten years have elapsed since the last named marriage, and more than twenty years since the prior marriage with Ann Cunningham.

We have given the details of opponent’s demand and of the answer of the executrix, as, in our opinion, they furnish their own conclusive answer to most of the questions that are propounded to us.

1. This is manifestly an opposition to an account — an account that is styled in the opponent’s brief “ a provisional account ” of administration. As such it appertains,to the liquidation aud settlement of the debts of and charges against the succession. An opposition to such an account is in the nature of an answer, and consequently found its proper place in the mortuaria of the deceased. It is not, therefore, as appellee insists, an independent suit which should have been allotted, in the Civil District Court, as a separate and distinct cause of action.

2. Thus deciding produces the further result that this is a claim for settlement of the one undivided one-half of the Connolly community, which is alleged to have been absorbed into the Cunningham community afterward; and it in turn by the Tyree community, which is in course of settlement.

True it is that claim is made for an interest in certain real estate, which was acquired during the Connolly community; but, inasmuch as opponents aver that same was sold in the Bothick succession in 1882 — a fact that is admitted by the executrix — that question can not be entertained and settled in the succession, particularly in the absence of the purchasers.

The only matter that is left open, then, is the claim of the opponents to a proportionate share or interest in the proceeds of such real estate, whatever that may be.

8. Entertaining this view, we are next confronted with the exrcu-trix’ pleas of four and ten years’ prescription.

Viewed as a personal action, opponent’s demands are prescribed by ten years; more than that period of time having elapsed since the death of Catherine Connolly on the 17th March, 1866. Revised Civil Code, 8544.

Opponent’s contention, on the contrary, is that Revised Civil Code, Art. 8548, which declares that all actions for immovable property, or for an entire estate, as a succession, are prescribed by thirty years," must control. Code of Practice, 12.

But we do not regard this as an action for an entire estate. The allegations we have quoted from the petition of the opponents negative that idea completely. Had it been an action for the recovery of an entire estate or succession, opponents would have commenced a direct against the party in possession, and have made suitable and appropriate averments.

The judge a quo sustained the claim of the opponents, in so far as they allege nullity of the will of T. W. Bothick affects their rights as, forced heirs, and decreed its nullity pro tanto; and reserved all of their rights to participate in the settlement of their deceased father’s succession.

We concur with our learned brother of the lower court in his disposition of all questions in the case, except that of prescription, which he appears not to hare considered. As that plea is directed against opponent’s claim against both the Oonnolly and Ounningham communities, we are of opinion that it is equally good as to the latter, as it was dissolved by Ann J. Ounningham’s death on the 24th of July, 1874.

The result of thus ruling- is to restrict opponent’s claim to the last community, which is now in course of settlement — reserving whatever recourse they may have against the real-estate described in the hands of third persons.

It is therefore ordered and decreed that the demands of opponents be restricted to the last or third Bothick community, and that as thus amended the judgment appealed from be affirmed at the costs of opponents, their rights being reserved to make claim, if any they have, to the real estate described in the hands of third persons.

Rehearing refused.