author: Fenner, J.

text:
    No. 9278.
    The State of Louisiana vs. A. Lamothe.
    JTew trial on the ground of newly discovered evidence will not he enforced when the witnesses were known before trial, hut could not he found, and when no postponement was asked on account of their absence, nor when the evidence is merely cumulative and corroborative and not calculated, in the opinion of the judge, to produce a different result on another trial.
    APPEAL from the Criminal District Court for the Parish of Orleans. Bo man, J.

      M. J. Gunnmgham, Attorney General, and Lionel Adams, District Attorney, for the State, Appellee.

      Branch K. Miller for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

Aided by no brief from counsel for defendant, we have nevertheless carefully considered the only bill of exception found in the record, which is taken to the overruling of a motion for a new trial.

The only ground of the motion which has any claim to our consideration here, is that of newly discovered evidence.

The affidavits of the proposed new witnesses are properly embodied in the bill.

The evidence seems to lack several of the essentials necessary to support the application.

1. It is not properly newly-discovered. One of the affidavits shows that the witnesses named were known as such before the trial and that unsuccessful efforts were made to find their addresses. It does not appear that any effort was made to procure a postponement of the trial on that account. Wharton Cr. PL and Pr., sec. 865; State vs. Crowley, 33 Ann. 782.

2. The judge, in his reasons, states that the evidence was, at most, only cumulative and corroborative in its character, and that it was not such as ought to produce, on another trial, an opposite result on the merits. Wharton Cr. Pl. and Pr., sec. 854.

Judgment affirmed.


source: Caselaw Access Project

author: Poems, J.

license: Public Domain

text:
    No. 9259.
    Police Jury of the Parish of Plaquemines vs. Mrs. Mary Mitchell et al.
    Tho claim of a parish against a riparian owner in said parish, for the costs incurred by tho police jury in making and repairing the public levee and the public roads on'the owner’s property, is not in the nature of a tax, toll or impost, or of a fine, forfeiture or penalty imposed by a municipal corporation, and if the amount of such claim is not equal in amount to the lower limit of our jurisdiction, the appeal cannot be sustained in this
    APPEAL from the Twenty-fourth District Court for the Parish of _ Plaquemines. Livcmdais, J.

      James WilMnson, District Attorney and B. T. Beauregard, for Plainliff and Appellee1.
    J. 8. Tully and 0. 8. Bice for Defendants and Appellants.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Poems, J.

Defendants have taken this appeal from a judgment condemning them to pay to plaintiff the sum of $367 65 for labor performed and materials furnished by tho parish in making and repairing the public levee and the public roads on the front of their plantation, situated on the Mississippi River in said parish.

The motion to dismiss is predicated on our want of jurisdiction ratione materia), and it must prevail.

In view of the amount involved, our jurisdiction would apply on the exclusive ground that, the claim involved the legality or constitutionality of a tax, toll or impost, or of a fine, forfeiture or penalty imposed by the parish.

It is apparent at a glance that, it is not a penalty, a fine or forfeiture imposed by a municipal corporation; it is equally clear that the question does not involve a toll or an impost.

In their answer, defendants urge that the claim is in the nature of a tax, and they intimate that it cannot be enforced under any other legal hypothesis.

It may be that the claim cannot be supported under or by virtue of any law, and that the parish was absolutely unauthorized to make the works or improvements at the cost of defendants. But the question which we must meet under the motion to dismiss, is to determine whether the claim is a tax. The very nature of the demand, which is for work and improvements made on defendants’property, excludes the idea that the proceeding is intended to enforce the collection of a tax. Our jurisprudence has long since settled the question, and the present Court has recently confirmed the doctrine, that contributions exacted by parishes or other municipal corporations, from owners of immovable property, for the construction of levees, public roads and for the opening of streets, and for like purposes, are not taxes, and that questions arising thereunder, could not be listed under constitutional or legislative provisions concerning taxation. Lafayette vs. Asylum, 4 Ann. 1; Yeatman vs. Crandall, 11 Ann. 220; city praying for opening of streets, 20 Ann. 499; Rooney vs. Brown, 21 Ann. 51; Board of Levee Commissioners vs. Lorio Bros., 33 Ann. 276; Barrow vs. Hepler, 34 Ann. 362.

The claim pressed in the case at bar, is not even a contribution exacted by the municipal corporation, but it is simply a moneyed demand growing out of an alleged legal obligation to do and to perform the works claimed for, and to compensate the parish for having performed the same.

This appeal is, therefore, dismissed at appellants’ costs.


text:
    No. 8050.
    City of New Orleans vs. New Orleans, St. Louis and Chicago Railroad Co.

      A ct 12 of 1875 conferring upon the State Board of Assessors the power of making the assessment for the city of Hew Orleans as well as the Slate, did not abolish distinctions established by existing laws between the subjects of taxation falling under the taxing power of city and the State respectively. Hence the assesment rolls for each were not nooossarily counterparts and copies of each other, and the mere fact that they differed from each other, did not, of itself, invalidate cither.

      The law authorized the assessments under the head of “capital,” all capital of corporations “not invested in real ostate,” and such assessment is not void for defective description because not setting out the particular items and objects in which the capital is invested. 32 Ann. 21; 31 Ann. 477.
    Complaints of mere excessive valuation of taxable property in the assessment, t annot be listened to as a defense to a suit for the tax. If appeal on such questions be made to the courts, the action must be directed against the Board of Assessors.
    The capital stock of defendant is nob exempt from taxation under Act 42 of 1874.
    A PPEÁL from the Fourth District Court for the Parish of Orleans. A'JL Houston, J.

      Blanc and Butler, for Plaintiff and Appellee.

      L. JS. Simonds, for Defendant and Appellant:
    I. Defendant’s railroad runs through the States of Louisiana, Mississippi, Tennessee and Kentucky. As to its railroad, machinery, rolling stock, etc., in the three last-named States, and as to the operation of the same therein, defendant is a corporation of those States respectively, and is domiciled therein, and is, to that extent and iu that respect, not a corporation of nor domiciled in Louisiana
    II. So much of the property, real and personal, as has its situs in Mississippi, is in possession and control of the Mississippi corporation; and is taxable iu that State only. The personal property, such as furniture, machinery, animals and rolling stock in that State, and which never passes beyond the limits of the State, has such situs and is taxable there only.
    III. So, also, as bo rolling stock which comes temporarily into this State, as vehicles of commerce, and which remain only a few hours in New Orleans, and which have their “ homo port ” at the machine shops and “round houses ” in Mississippi, and which are laid up there when not in use. Such property is not situated in this State, Its situs is elsewhere, and it is there taxable. Revenue Act. No. 42, of 1871, sec. 16. Rev. Stat. sec. 3254.
    IV. The rule that personal property is assessable at the domicile of the owner, was intended to apply to property that follows or may follow the owner, e. g. dobts, dioses in action, etc. It was not intended to apply to personalty having an established locality. In Louisiana personal property is to be assessed in the parish where situated. Revenue Act of 1871, sec. 16; Revised Stat. art. 3254; See also Cooley Tax, 270.
    V. The assessment in question is illegal and void. The Board of Assessors were required to make the same assessments for both Stale and city taxation. But the assessment roll for the city was of different property or at different valuations from the roll of the State. Act No. 12, of 1875. sec.
    VI. There was no proper description of the thing assessed. The assessment of “ merehcvndise, capital and money at interest f is sought to be applied to railroad tracks and rolling stock—eked out by the testimony of the assessor and by other evidence outside of the assessment roll. It is nob even claimed that any capital stock is assessed over and above tbe corporeal and tangible property of the Company.
    VII. Defendant has the right to appeal to the courts against the valuation of the property as well as the legality of the tax. Just at the time of this assessment, there was no law making the decision of the assesors final as to the city assessments. Defendant opposes both the valuation and the legality of the tax.
    VIII. Any law in this State which makes final the decision of the assessors fixing the amoxmt dxie to the city, and which gives to such decision the force of the thing ad• judged, is in violation of that part of the Constitution which lodges the judicial power in certain courts. Const, of 1868, art.
    IS. The law as to “arbitration” of assessments, referred to by the judge below in his reasons for judgment, was not passed until after this assessment.
    X. isTeithor the letter nor the spirit of the laws of Louisiana warrant an assessment of property not forming part .of the bulk of property of the State. Without clear and positive legislation to that effect, the courts will not maintain an inequitable aud capricious assessment. In the absence of provisions in the revenue act, under which the assessment is made, showing clearly the intent of the Legislature, the courts will look to other legislation on the same subject, to ascertain sncli intent.
    The original opinion and decree in this case were, on rehearing, set aside.
   On Rehearing.

The opinion of the Court was delivered by

Fenner, J.

Much reflection on the issues involved in this impor • tant case has brought us to the following conclusions, viz :

1. Act No. 12 of 1875, which devolved upon the State Board of Assessors the exclusive duty of making assessments for the city as well as the State, did not, in terms or by implication, abolish or repeal the distinctions established by existing tax laws between the subjects ot taxation, falling under the taxing power of the State and of the city respectively. Thus act No. 7 of 1870 exempted from city taxation household goods to the value of one thousand dollars, and incomes not exceeding one thousand dollars per year, while Act No. 42 of 1871 exempted from taxation only five hundred dollars of household goods, and either exempts or taxes no income whatever. These laws the Board of Assessors were bound to respect. Hence the contention that, under Act No. 12 of 1875, there must be but one assessment for the city and State, and that the assessment roll of the one must be an exact copy aud counterpart of the other, is without foundation.

In this particular case, the assessors seem to have construed their duty under the law, to be to assess for State taxation the entire capital of the corporation invested in the State, including eighty-eight uiiles of road-bed within the State limits, while, for city taxation, they assessed only the capital invested and employed in the city of New Orleans.

Under this view of tho law, the assessments necessarily differed materially. In fact, tlie State assessment amounted to $4,000,000, while that for the city amounted only to $1,063,200.

Does the defendant contend that the assessment for the city should have conformed to that for the State 1 If so, it complains with had grace and without reason, because the non-conformity results to its benefit iu a saving of nearly $3,000,000 worth of property from taxation. Loos it contend that the State assessment should have conformed to that for the city 7 Tf so, it might furnish strong grounds for opposing the State assessment, but would be a con.fes.iion of the correctness of that for the city. The mere fact that they differ cannot, of itself, furnish ground for contesting either.

It is proper to observe that the assessment under consideration was made in 1876 for the year 1877, and onr remarks have no application to the system prevailing under the Constitution of 1879 and the legislation thereunder.

2. The objection that the assessment is void for lack of description of the property assessed is untenable.

The description consists iu the word “ capital.” The law required no further description. It authorized the assessment under that head of all capital of a corporation “not invested in real estate,” and did not require a description of the particular property in which it was invested. Act 42 of 1871, sections 34 and 35.

The legality of such assessments has been sustained by this Court, which said, in one case, “the assessment of the 'capital’ of a corporation cannot in the nature of things, particularize each and every article and element of value entering therein. It must, of necessity, be assessed, to a great extent, in general terms, and so far as we can per¿eive, no distinction exists iu law between corporations whose capital is all in money and those whose capital consists of property, privileges and franchises.” N. O. and Carrollton R. R. Co. vs. Assessors, 32 Ann. 21; N. O. Gaslight Co. vs. Assessors, 31 Ann. 477.

Hence the objection of defective description is untenable.

3. The foregoing disposes of all objections which go to the inherent validity of the assessment as a basis for any taxation whatever.

The remaining objections only attack the amount of valuation and if sustained, would not destroy, but merely reduce the assessment of defendant’s “capital,” They are, iu other words, complaints of exessive valuation. They raise several interesting and perplexing questions ; but we are clearly of opinion that such questions cannot be agitated in this proceeding, which, is a suit for a tax.

Sections 45 and 50 of Act 42 of 1871 and Act 12 of 1875 (which latter continued in the assessors “all powers heretofore prescribed by law”) vested the power of correcting errors of assessment in the Board of Assessors, and provided, that, “they shall decide all contested cases and their decision Shall be final as to the valuations in said assessment rolls.”

It is contended, that this provision did not apply to assessments for the city, and, also that it is unconstitutional. We have no call to determine these questions now and here; for were we to assert the right of the tax-payer, injured in this regard, to claim judicial review of the action of the assessors, it is obvious that his action must be directed against the Board of Assessors, and that he cannot set up such injury as a defense to a suit for the tax by the city of New Orleans. The city did not make the assessment and had no power to correct it. The question is one exclusively between the tax-payer and the Board of Assessors whose action is called in question and whose decision is to be reviewed.

See Cooley on tax, p. 528 and note 4. No authority is needed to support so self-evident a proposition.

Tiie mistake of the judge a quo in assigning, in his reasons for judgment, an erroneous reason for refusing to consider questions of excessive valuation, does not effect the correctness of his conclusion. As the grounds of this decision have now been passed on for the first time, we deem it proper to reserve the right of defendant to apply for a rehearing within the usual delay. Our former decree herein is, therefore, now annulled and set aside and it is now ordered that the judgment appealed from be affirmed.

On Application por Rehearing.

Counsel for the cast defendant complains that we have not passed on one question raised by them, viz: “ That its capital stock is exempt from taxation.”

The claim rests on the provision of Section 2 of the charter of the New Orleans, Jackson and Great Northern Railroad Company, passed in 1853, in these words: “ The capital stock of said corporation shall be exempt from taxation, and its works, fixtures, etc., shall be exempt from taxation for ten years after the completion of the road within this State.” Considered verbatim et punotuatim, a strong argument might be made to exclude the exemption of the capital stock from the limitation of ten years; but the question would still remain doubtful and that alone would be sufficient to repel the claim under the doctrines announced in the Carrollton Railroad case. N. O. & Carrollton R. R. vs. New Orleans, 34 Ann. 429. See specially pp. 440, 441 and 447.

If this answer were not in itself sufficient, it might be readily shown that the Act 42 of 1874 did not, under any view, have effect to exempt the capital stock of the defendant corporation from taxation.

On other points, we will add that counsel do their own powers of lucid statement and our faculties of comprehension equal injustice in reproaching us with having “mistaken the grounds” upon which they claim the illegality of the assessment. We understood the grounds thoroughly, considered them carefully, and adhere to the conviction that we have disposed of them correctly.

We take pleasure in recognizing the thoroughness and ability with ■which they have presented their client’s case, and they may rest content in the consciousness that they have done all that any counsel could llave done in its behalf.

Rehearing refused.


text:
    No. 9266.
    The State of Louisiana vs. Tsni Ho et al.
    An appeal from a judgmonfc of a recorder’s court on the ground that the case involved a contestation as constitutionality and legality of a “fine, forfeiture or penalty imposed by a municipal corporation,” cannot be maintained when it does not appear from the record that such “contestation” was raised in the lower court prior to final judgment!
    A PPEAL from the Second Recorder’s Court. Ford, Recorder.

      Walter IL. Rogers, City Attorney, for Plaintiff and Appellee.

      J. 0. Walker for Defendants and Appellants.
   The opinion of the Court was delivered by.

Fenner, J.

This appeal finds its way into our Court under the sole protection of that clause of article 81 of the Constitution which extends our jurisdiction to “all cases in which the constitutionality or legality of any fine, forfeiture or penalty imposed by a municipal corporation shall be in contestation, whatever may be the amount thereof, etc.”

Essential conditions precedent to the maintenance of our jurisdiction are wanting in this case.

It is obvious that the “contestation” referred to in the Constitution, must have existed in the lower court, and that the fact of its existence must affirmatively appear on the face of the record.

We have scrutinized this record without finding that any such “contestation” was raised in the lower court, before final judgment, either by way of plea, exception or defense. The unconstitutionality and illegality of the penalty imposed, were suggested for the first time, so far as the record show's, in the motion for an appeal from the judgment. It docs not appear that this question was raised on the trial or passed on by the magistrate.

The object of an appeal is to reverse or amend the judgment on the ground of error therein. We cannot find that the judge has committed error in the decision of the sole question which could give us jurisdiction, when it does not appear that such question was submitted to or decided by him, or was in “contestation” in the case.

Let the appeal be dismissed at appellants’ cost.


author: Poché, J.

text:
    No. 9270.
    The State of Louisiana vs. Wm. Ferguson.
    In criminal cases the Supreme Court will not consider alleged errors in the charge of the trial judge to the jury, when suggested in an assignment of errors, and when no objection was made to the charge when given, unless upon* its face the charge should appear to be unjustly and glaringly erroneous. State vs. Ficulfi, 35 Ann. 774 ; State vs. Curtis, 34 Ann. 1213; State vs. Beaixd. 34 Ann. 106, affirmed.
    The charge must be considered as a whole, and the practice of selecting therefrom isolated passages for criticism and animadversion, will not be sanctioned, when it appears that such passages, although apparently erroneous, are fully explained by other passages in the instructions.
    APPEAL from the Criminal District Court for the Parish of Orleans. 1loman, J.

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

      W. L. JSvans for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Appealing from a conviction of manslaughter, under a charge of murder, the accused invokes relief under an assignment of errors, which is confined to the judge’s charge to the jury.

No objection was made to the charge or to any part thereof when it was given.

The charge, which was made in writing, is a carefully prepared paper, intended to cover the whole law governing the trial under the charge of murder.

After seriously complaining in his assignment of errors, that owing to tlie manifold inaccuracies which are engrafted in that charge, his client was practically denied that protection with which the law charitably shields all persons on trial for serious offenses, counsel for the accused proceeds to cull isolated passages from the judge’s charge, and to demonstrate the fallacy of the doctrine therein embodied.

Such, a course, illustrates more forcibly than any reasoning which we could adopt, the wisdom of the now settled rule, that an assignment of errors is not the legal mode of inviting review by an appellate court, of alleged errors in the charge of the trial judge.

The special charge which is urged to he erroneous must be objected to at the time that it is given, or the complaint cannot be heeded. The charge of the judge must not be confounded with a thesis on criminal law, to which hypercritical reversion is invited by counsel of the party convicted. The law contemplates it as a synopsis of the principles which should control the trial; and jurisprudence has established the rule that by a timely objection the accused may secure a correction of any unguarded or erroneous utterance, or an explanation of any doubtful expression which may have occurred in the judge’s instructions. And this Court has more than once emphatically declared that it will not tolerate the vicious practice under which the accused would take his chances of an acquittal under a charge not objected to at the time; and if convicted, to escape from the verdict by subsequently alleging errors in the identical charge which had gone without objection. State vs. Beaird, 34 Ann. 106; State vs. Curtis, 34 Ann. 1213; State vs. Riculfi, 35 Ann. 774.

While it is true, as we freely concede, that the accused on trial is under the protection of the court, counsel must not lose sight of the protection which the law, through appellate tribunals, must extend to trial judges when they correctly expound the laws of their country, and conscientiously discharge their delicate and onerous duties, in trying their fellow-men for tlieir lives or their liberty. As a further illustration of the absolute wisdom of the rule which we herein reiterate and reaffirm with the solemn conviction that it will be at last impressed on the minds of criminal practitioners, ayo note the following incident in this case:

In his brief, counsel for appellant vehemently complains of the grievous error committed to the detriment of his client by the trial judge in the following sentence which he transcribes from the charge: “Now lastly, should the evidence and the law satisfy you that the. prisoner is guilty of no offense at all, '■ 1 * then and in that case your duty is clear and your verdict should be one of acquittal.” Counsel then bitterly denounces the injustice of such a charge, under which the district judge is seriously taxed with the error of having-deprived the accused of the instruction, required by the law, thac he was entitled to the benefit of a serious doubt as to his guilt or innocence.

Confident that onr learned brother of the Criminal District Court could not have made such an omission, we at once turned to his charge on the subject of doubt, and we therein found the following instruction, which counsel must íhave overlooked: “ And the court will add this: That any doubt—any serious doubt—on your part, as to the guilt of the accused, after a careful examination of all the facts and circumstances of the 'case, must go to the benefit of the accused, as though no charge were brought against him.” With due deference to counsel, we are compelled to deprecate such a style of argument.

This appeal is entirely devoid of any merit.

Judgment affirmed.


author: Manning, J. Todd, J.

text:
    No. 9215.
    Hawkins & Roberts vs. Ferdinand Beer. E. Forrestier, Intervenor.
    The five days lien on agricultural products in favour of tlie vendor exists whether the sale was made for cash or on credit, and is enforcable after the produce has gone into the possession of third parties under a liona fide sale equally as well as while it is in possession of the original vendee. G-umbelv. Beer, 36 Ann. 484, reaffirmed.
    In a suit for produce or its value accompanied by a sequestration based ou a defective affidavit, when the defendant fails or refuses to object to the affidavit or to take advantage of its defects, the intervenor is powerless to avail himself of them. He cannot complain of irregularities which tlie defendant has condoned.
    The sole change in the intervenor’s status made by the Act of 1876 is to enable him [to bond the sequestered property.
    APPEAL from the Civil District* Court for the Parish of Orleans. Houston, J.

      T. J. Semmes & Payne and W. 8. Benedict for Plaintiffs and Appellees.

      Miller (& Pirniey and Henry Benshaw, contra.

   The Opinion of the Court was delivered by

Manning, J.

On April 29, 1882, Forestier the intervenor contracted with the defendant Beer for the purchase of three hundred and fifty bales of cotton of a stipulated grade, and paid him cash down fifteen thousand dollars as an advauce on the price and on May 1st following fifty two hundred dollars additional. On May 2d. the plaintiffs sold to Beer three hundred and thirty eight bales for cash payable on delivery, and gave Beer’s broker on same day an order on the Press for its delivery, and the broker transferred this delivery-order at once to Forestier’s broker in part fulfillment of Beer’s contract with Forestier. On May 3d. Forestier’s broker presented this order to the Press and received the cotton which was weighed and shipped, Forestier obtaining the bill of lading on the 4th, Beer had not paid the plaintiffs and they sequestered the cotton on the 5th. on shipboard.

The petition alleged that Beer had absconded and a supplemental petition prayed a writ of attachment also. A curator ad hoe was subsequently appointed to represent him, but Beer filed an answer in his own person or it was filed for him at a later stage and before trial. But before that, viz on May 6th. Forestier intervened claiming 272 bales under Beer’s sale to him and contesting the existence of the plaintiff’s lien and praying the restoration of them to his possession as owner. This suit concerns these 272 bales alone. The plaintiffs’ seizure of them was released to the intervenor on his bond, but upon trial the plaintiffs’ lien was maintained and they had judgment for $14,074.15 with interest, from which the intervenor alone appeals.

The appellant’s counsel cites a number of decisions which he construes as asserting that the five days lien does not exist upon produce sold for cash after it has been transferred to a third party, but these decisions and the whole legislation and jurisprudence upon that matter have lately been reviewed by us in Gumbel v. Beer, 36 Ann. 484, where we held that the lien exists whether the sale was made for cash or on credit, and is enforcable after the produce has gone into the possession of third parties under a bona fide sale equally as well as while it is in the possession of the original vendee. Renewed ex'amination confirms the correctness of our ruling upon that question and the elaborateness with which it was treated in that opinion renders any further discussion superfluous.

The question here is of a different character. The affidavit of the plaintiffs’ upon which the sequestration issued is confessedly defective. Neither it nor the petition states or alleges any fear of removal, concealment, or disposal of the property, nor is there any averment complete enough to sustain a sequestration. The defendant did not except or object to the informality but pleaded the general issue alone. The intervenor moved to dissolve the writ on sundry grounds of insufficiency of the affidavit which, if set up by the defendant, would unquestionably have been good, and so the point at issue is the intervenor’s right to question the sufficiency of the plaintiffs’ affidavit when the defendant has failed or refused to do it.

An unbroken line of authorities denies him this right. That line begins with Lee v. Bradlee, 8 Mart. 55, where the court say a claimant has surely no right to show any irregularity in the suit in which he intervenes, for it is none of his business whether the plaintiff, the court, and the Sheriff have been acting legally or not. In West v. Creditors, 8 Rob. 123 it was said an intervenor cannot urge any irregularities in the suit nor plead exceptions having for their object the dismissal of the action, and in Yeatman v. Estill, 3 Ann. 222, that it was no longer competent for an intervening party to object to the mode in which a writ had been executed, and this was repeated in Fleming v. Shields, 21 Ann. 118 and Carroll v. Bridewell, 27 Ann. 239.

But all these decisions were made prior to the legislation of 1876 which for the first time gave intervenors the right to bond property that had been sequestered or otherwise seized by any of the conservatory writs, Sess. Acts p. 92, and all but the last were made prior to the Act of 1870 which prescribed that the bond should be made payable to the clerk. Sess. Acts 1871, p. 18. The intervenor relies upon these two Acts as authority for doing now that which was theretofore denied him, and insists that this legislation has revolutionized the relations of intervenors to suits and conferred upon them a new status.

It is impossible to find any warrant in these Acts for such pretensions. The first was merely a change in the form of the bond in one particular, promoting convenience by making the clerk the obligee and of necessity enabling every one injured by the process to have recourse on the bond. The clerk is simply the representative of the collective interest that have been or may be aggrieved, Whether an intervenor has not the right to object to the sufficiency of the bond is a matter not now before us, and we say nothing about it.

As little can the later Act be said to have changed the attitude of an intervenor save in the special matter that forms the subject of that change. Hitherto he could only contest the right of the plaintiff or of the defendant or of both, but could in no wise interfere with the action of the writ. By that legislation he was enabled to take the property out of the clutch of the writ and in that respect a new power was conferred upon him but his status was not otherwise altered.

An unanswerable reason for this construction lies in this. A familiar rule is that judicial construction of statutes becomes incorporated in them. This lino of authorities already cited had eatablished that intervenors could not take advantage of irregularities and informalities of sequestration process, and this inability, was written into the law. If the legislature had intended to relieve intervenors of this disability, the hardship of which must have been apparent before then, it would not have stopped short at merely giving them the right to bond.

And the bond he does give is not as onerous as that required of the defendant. It is merely a forthcoming bond, Meyer v. Fletcher, 35 Ann. 878, and as we restricted his liability under the bond to the terms of the statute, we cannot construe that legislation as enlarging his powers beyond the single right then newly conferred. He cannot complain of sins the defendant has condoned.

Judgment affirmed.

Rehearing refused.

Dissenting Opinion.

Todd, J.

I think since the change of the law allowing intervenors to bond property sequestered in tbeir possession, and the law directing sequestration and other bonds for conservatory writs to he made payable to the clerk for the benefit of all parties intended, that an intervenor in such case can interpose all objections to the legality or sufficiency of the bond and to the regularity of the proceedings under which his property Has been seized that the defendant himself could do.

I therefore dissent.


author: Fenner, J. This is a suit to annul an adjudication of certain im- Bermudez, C. J,

text:
    No. 9211.
    Mrs. Jane Bell vs. B. W. Taylor and J. D. Houston, Tax Collector.
    The only duty imposed on the tax collector which is declared by section 1 of Act 98 of 1882, to be “ mandatory and imperative, ” is tbe duty •1 to proceed immediately after the promulgation of this act to prepare the necessary records.” The following words “ and (he) shall, within four months after said promulgation advertise for sale, etc.,” is grammatically independent of the declaration of “ mandatory and inoperative duty,” and is, therefore, a separate and merely directory provision.
    This construction is in harmony with the provisions in. section 11 of the act, “ that if any tax collector shall, after four months from the promulgation of this act, fail to advertise, etc.,” which obviously contemplates advertisements after the four months, and excludes the theory that the power to advertise expired with that period.
    The provision being directory merely, failure to advertise within the four months does not, nesessarily, involve the nullity of advertisements subsequently made, in absence of any proof of culpable delay,

      The description of the property sold in this case, however, as contained in the advertisement, does not comply with the requirements of section 3 of act 98 of 1882 and section 20 of act 96 of 1877 and the sale is, therefore, null.
    PPEAL from the Civil District Court for the Parish of Orleans, Monroe, J.

      B. JR. Borman for Plaintiff and Appellee.

      T. Gilmore and Sons and Blane and Butler contra.

   The opinion of the Court was delivered by

Fenner, J. This is a suit to annul an adjudication of certain im-

movable property situated in this city to the defendant, B. W. Taylor, made by the defendant tax-collector, by virtue of proceedings under Act 98 of 1882, entitled: “ An act to enforce the miscellaneous ordinances of the Constitution for the relief of delinquent táx-payers.”

Various grounds of nullity are assigned and the prayer is that the sale be annulled and that the defendants be perpetually enjoined from disturbing plaintiff in the possession of her property.

I.

The ground upon which the judge a quo sustained plaintiff’s action was that the authority to sell conferred by the Act 98 of 1882, expired in four months after the promulgation of the act, and that the advertisement and sale having taken place long after the expiration of that period, the sale was without authority of law and null and void.

The question is one of vast public moment and we will dispose of it at the threshold of the case.

It must be admitted that, in framing one of the most important laws ever placed upon the statute boob, the legislature, by bad grammar, ill construction of sentences and inconsistent expressions in different parts of the same act, has left its meaning veiled in such obscurity that the resources of judicial interpretation are severely taxed to discover and declare it with any approach to certainty.

The following is the first section :

Section 1, etc. “That it is hereby made the mandatory ana imperative duty of each tax-collector in the city of New Orleans, and each sheriff and ex-officio tax-collector throughout the State, to proceed immediately after the promulgation of this act to prepare the necessary records, and shall within four months after said promulgation, advertise for sale, except as hereafter provided, all property which has heretofore been forfeited to the State of Louisiana, or to any parish for any unpaid taxes, and all property which has heretofore been sold to the State of Louisiana for unpaid taxes or licenses, and all property upon which any taxes due to th'e State of Louisiana, or to any parish, prior to January 1, 1880, remain unpaid or unsettled by partial payment and acknowledgment or confession of judgment.”

The question arising under this language is, as to the extent of the “mandatory and imperative duty” described.

The statute says “ it is hereby made the mandatory and imperative duty of the tax-collector to proceed, immediately after the promulgation of this act, to prepare the necessary records.” At this point the statute stops in the enumeration of duties, which can, by any grammatical link, be connected with the declaration that it is “made the mandatory and imperative duty of the tax-collector ” to do, etc. Had the statute proceeded in this wise: “And, within four months after said promulgation, to advertise for sale, etc.,” the meaning would have been clear, and the duty to advertise within four months would have been unequivocally declared to be “mandatory and imperative.” lint if will be observed that, after the words, “ to prepare the necessary records,” the sentence changes form, and breaking off the enumeration of things which it is made “the mandatory and imperative duty” of the collector to do, proceeds with the independent direction, “ and shall, within four months after said promulgation, advertise for sale, etc.” It is obviously impossible to control or qualify this simple direction by the former declaration of “ mandatory and imperative duty.” The subject of the verb “shall advertise',,” is plainly he or they understood, and that part of the phrase is a mere directory provision that the tax-collector “ shall, within four months, advertise for sale, etc.”

We will not pursue this verbal and grammatical criticism further. The construction we have adopted is enforced by the- language used in the eleventh section of the act, which declares: “That if any tax-collector shall, after four months from the promulgation of this act, fail to advertise, etc., he and his sureties in solido shall become personally liable, etc.”

This evidently contemplates advertisements after the four months, and is inconsistent with the theory that the advertisements were to be made within four months on pain of nullity.

But our views are still more powerfully enforced by a consideration of the absurd consequences to which plaintiff’s theory would lead. We think no one familiar with notorious and public facts, as to the confusion into which the tax records of the. State, had fallen, the loss of many important books connected therewith, and the immense number of delinquent tax claims for numerous years as illustrated by the enormous lists published during months under this act, could suppose it possible that the tax-collector could, by any effort of industry, have prepared the necessary records, and have made up and published the prescribed advertisements within four months after the promulgation of the act.

Yet plaintiff’s theory requires us to believe, not only that the performance. of this impossibility was imposed on the tax-collector, but, that in case of his failure to perform it, he and his sureties were to become personally liable for the entire amount of all the taxes, licenses, interest, expenses and costs due January 1, 1880,” aggregating several millions of dollars; and, also that the district attorneys of the State were to bring suit for the enforcement of such liability, under penalty in case of failure, of having it transferred to their own shoulders. It is impossible to impute such intention to the legislature, and had it been supposed to exist and to be capable of enforcement, we should have witnessed a scramble of sheriffs and tax-collectors to escape from those offices far surpassing that usually exhibited in running after them, while their frightened sureties would have clamored for release from such perilous bonds.

We do not disguise the difficulty of making effective many of tho provisions of this act; but, it is sufficient to say that the only duty expressly made mandatory by the act is that, “to proceed immediately after the promulgation of this act, to prepare the necessary records.”

The other provision that the tax-collector “ shall, within four months after said promulgation, advertise for sale, etc.,” is, by its terms, and in its essence, directory merely, and, as such, subject to the general rule, that when a statute specifies a time within which a public officer is to perform an official act, it is merely directory as to the time within which the act is to be done, and a failure to do so within that time will not prevent its being done afterwards, provided no one’s rights be thereby lost or materially affected. Wilson vs. Bank, 8 Ann. 196; Sedgwick Stat. Construction, p. 316.

We, therefore, think that this ground of plaintiff’s action is not supported.

II.

There are various objections urged to the constitutionality of act 98 of 1882, besides pleas of prescription of the tax and several objections to the mode of proceeding.

The conclusion reached by us on one of the latter points obviates the necessity of passing on the others, and, we should have passed by the one which we have just determined had it not been the sole ground upon which the judgment of the lower court was based and one involving such urgent public interests.

The point to which we refer is the.insufficiency of the description of the property in the assessment and in the advertisement of the property.

The third section of Act 98 of 1882, provides: “ That all such property shall be advertised by the description contained on the assessment rolls, if that be sufficient to identify and deliver the property or if the tax-collector or ex-officio tax-collector thinks such description insufficient, it is made his duty to advertise the property by a correct and sufficient description.”

The sale involved in this case, was made for a tax of 1878, and the assessment is governed by Section 20 of Act 96 of 1877, which declares that, in absence of return made by the tax-payer, “ in all cities, towns or villages, it shall be the duty of the assessor to designate the number of the lot according to ihe plan of such cities, towns or villages, or according to the plot or plan of the squares, designating by what particular plot or plan,” and he is required to give “in all cases, the dimensions.”

In this case, the title of plaintiff duly recorded in 1875, described the property then bought by her as “ two lots of ground, in the fourth district, bounded by Jackson, Magazine, Live Oak and Josephine streets, designated by lots Nos. I and 2, and part of lot 3,” measuring about 76 feet front on Jackson by 127 feet in depth. In May, 1878, she sold a part of the ground and had a new plan made, by which she was left the owner of a lot designated on that plan as lot B, being the middle portions of the original three lots, and measuring 61 feet, 3 inches on Magazine street, by a depth of 76 feet, 3 inches, 6 lines.

The advertisement describes the property as, “ two certain lots of ground in the square bounded by Magazine, Constance, Jackson and Josephine streets, designated as lots Nos, 1, 2 and 13 in the square No. 135; said lots measuring together 63 feet, 6 inches front on Magazine, by a depth of 74 feet, 9 inches, six lines.”

It will thus be seen, that neither in dimensions nor in numbers, does it correspond with the property owned by Mrs. Bell. There is no designation of any particular plot or plan according to which the numbers were given, nor whether it was the plan of the city, or the plot or plan of the square; and conceding that, if it was the city plan, such designation might have been unnecessary; no proof is made that there was such a city |>lan or that the description was according thereto, although the sufficiency of the description as to the numbers and measurement was expressly put at issue.

In absence, at least of such proof, we are confronted with a case where the assessment does not show upon its face, that the requirements of the law have been complied with and the prima facie defect is not even cured by proof of actual compliance.

It was long since held by this Court that in tax sales, it is necessary, under pain of nullity, that the estate sought to be divested should be described so that it may be identified;” and that the description must show “ on its face, or by reference to accessible public documents what is taken from the owner and transferred to the purchaser.” Wilson vs. Marshall, 10 Ann. 327; Jacques vs. Kupman, 6 Ann. 542; Wills vs. Auch, 8 Ann. 19.

Such requirement is expressly embodied in the act of 1877 above referred to. -

We refrain from holding, as already intimated, that if the assessment was made according to an official city plan, the failure to refer to it would, by itself, constitute an incurable nullity; but, in absence of proof that it was so made and that the description by numbers conforms thereto, the apparent defect is certainly fatal, especially when taken in connection with the difference in dimensions.

The assessment and the advertisement, under the proof in this case, are insufficient to sustain the title of defendant, and the prima fade presumption in favor of its validity cannot avail to save it.

Without any prayer to that effect in the pleadings, and without even a motion for amendment of the judgment in this Court, defendant, Taylor, asks that provision should be made in the judgment for return of the tax paid by him. This, of course, is impossible. His right to return of the taxes paid by him to the extent that the same enured to plaintiff’s benefit is unquestionable and will not be precluded by this decree.

Judgment affirmed.

Concurring Opinion.

Bermudez, C. J,

The judgment appealed from should be.affirmed,, solely for the cogent reasons assigned by the District Judge.

I therefor concur in the decree.

Todd, J., concurs in this opinion.


author: Manning, J.

text:
    No. 9297.
    The State of Louisiana vs. Phylos Wilkins, Jr.

    Our Code of Practice does not assume to regulate criminal pleading and lias nothing whatever to do with it.
    An appeal in a criminal case lies only from the sentence or final judgment, unless the ruling of the court upon a motion, plea, or other interlocutory matter finally disposes of the case.
    The meaning of the sentence “ whenover the punishment of death or imprisonment at hard labour may he inflicted ” is whenever the offence charged is one the legal punishment of which is death or imprisonment at hard labour.
    When an appeal has been taken by the defendant from an overruling of any plea that does not finally dispose of his case, the appeal will be dismissed if the Attorney General so moves.
    A PPEAL from, the Ninth District Court, Parish of Concordia. A. Young, J.

      M. J. Oimninglimn, Attorney General, and Hugh Tullís, District Attorney, for the State, Appellee.

      G. F- Bowles and G. Bemle for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The defendant was indicted for shooting one Scott with intent to murder while lying in wait, and was put upon trial therefor, but tlie jury failing to agree were discharged.

Thereupon the prisoner, without being put on trial a second time, instantly filed the plea of u once in jeopardy,” which being overruled he has appealed.

The Attorney General has moved to dismiss because there is uo judgment to appeal from, and it must prevail.

On general principles an appeal from an interlocutory order or judgment in criminal matters does not lie. It seems necessary to continue to repeat the announcement that our Code of Practice does not assume to regulate criminal pleading and has nothing whatever to do with it. An appeal in criminal matters is regulated by the common law rules of practice except when -modified by our own statutes, and the common law practice in criminal trials does not know such a proceeding as an appeal from an order (or judgment if you will) overruling a plea which does not determine the case. The appeal is from the sentence or final judgment. Our statute is that if final judgment has been rendered an appeal may be taken, Kev. Stat. Sec. 1001, and is but a recognition of the universal rule that where the ruling of the lower court does not dispose finally of the case, it can be reviewed only on appeal from the judgment that does dispose finally of it. Wharton Cr. Pr. and PL Sec. 775-7.

Public policy no doubt caused the original establishment of the rule and equally demands its preservation. To permit appeals from orders overruling motions, pleas, etc., in the progress of a criminal trial,would so delay and hamper the administration of that branch of the law as to paralyse it virtually and deprive criminal statutes of more than half their terrors. The deterrent effect or influence of a denunciation of punishment as consequent upon the commission of a criminal act is augmented a hundred fold by its speedy infliction.

The point is not new. So long ago as State v. Hornsby, '8 Rob. 584 this court said the right of appeal accrues only after sentence, and refrained from dismissing that appeal because the Attorney General had not prayed it, and in two later cases on the motion of that officer, dismissed the appeals because taken before sentence had been pronounced. State v. May, 9 Ann. 69; State v. Pratt, Idem 157.

These two cases were decided under the Constitution of 1852 the provision of which, art. 62, is the same as that of 1879, art. 81, and differs from the verbiage of 1868, art. 74. The meaning of the sentence, “whenever the punishment of death or imprisonment at hard labour may be inflicted,” is whenever the offence charged is one the legal punishment of which is death or imprisonment at hard labour. The use of the potential mood gives no countenance to the idea that an appeal will lie when a sentence of such punishment may be pronounced in the future as well as when it has been already pronounced, and it would be counter to our own jurisprudence which is in harmony with that elsewhere. Authorities ut supra, State ex rel., Gabriel v. Judge, 33 Ann. 1227.

The appeal is dismissed.


author: Bermudez, C. J. Manning J.

text:
    No. 9245.
    Edward Irwin vs. Great Southern Telephone Company.
    The State and municipal corporations duly authorized, can, in the exercise of the rights of eminent domain and of police, empower telephonic companies to use the streets and sidewalks of a city, for the purpose of erecting poles and other works necessary for the transmission of intelligence, and can impose terms and conditions for tho enjoyment of the privilege
    Abutting owners in front of whose premisos such poles have "been erected, with such authority and after compliance with all conditions imposed .for the benefit of the public, have no occasion to ask the removal of the same, when the poles do not specially and materially obstruct them in the free use of their property, or invade some vested right, and do not inflict on them some injury which is not common to all other persons.
    Such owners have no fee in the sidewalk, or street, in this State, and have no right to claim previous just compensation.
    Poles erected under such circumstances are not such nuisances as such owners can successfully ask to have abated.
    A PPEAL from the Civil District Court for tlie Parish of Orleans, xi Lamrus, J.

      T. Gilmore & Sons and Singleton, Browne & Ghoate for Plaintiff and Appellant.

      Bayne á Denegre for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

This suit is brought for the removal of a polo, erected at the inner angle of the sidewalk, forming the corner of two of the principal streets of this city.

The defense is, the general issue and aij averment that the post was constructed, with State and municipal authority, for the purpose of supporting the wires used and necessary for the transmission of messages.

The plaintiff appeals from a judgment in favor of the defendant.

The power of the State and of municipal corporations, over public or common property, to regulate the use of it, for purposes of public utility, is no longer a mooted question, where no constitutional rights are infringed.

It is well defined to be the rightful authority which exists in every sovereignty to control and regulate those rights of a public nature which pertain to its citizens in common, and to appropriate individual property for the public benefit, as the public safety, necessity, convenience or welfare may demand. Cooley Const. Lim., p. 652, sec. 524; 661, sec. 531; 676, sec. 542; Angelí on Highways, sec. 237.

In his remarkable work on municipal corporations, while dealing with this subject, Judge Dillon says :

The legislature of the State represents the public at large and has full and paramount authority over all imblic ways and public places. * * * By virtue of its authority over public ways, the legislature may authorize acts to be done upon them, or legalize obstructions therein, which would otherwise be deemed nuisances. As familiar instances of this, may be mentioned the authority to railway, water, telegraph and gas companies to use or occupy streets or highways for their respective purposes. * ? * Whatever the legislature may authorize to be done is of course lawful and of such acts, done pursuant to the authority given, it cannot be predicated that they are nuisances; if they were such without, they cease to be nuisances, when having the sanction of a valid statute. * * * Legislative sanction, directly given or mediately conferred, through municipal action, is necessary to authorize the use of streets for the posts of a telegraph company. If such posts be erected within the limits of a street, or highway, without such sanction, they are nuisances, but if the erection be thus authorized, they are not. V. Dillon Mun. Corp. secs. 657-7, 698, 3d ed., and authorities referred.

Citizens have, nevertheless, the right to complain of nuisances ; but^ this can successfully do, only where the effects are not common to every person, but produce by the invasion of some vested right, a special or particular damage to them, as distinguished from the rest of the public-' 3 Ann. 648, 1062; 36 Ann. 163; Wood on Nuisances, 472, 641, 792. Dillon on Mun. Corp. 379, 698, 3d ed.; 17 Rep. 1884, p. 306; 18 Rep. 727.

For injuries that are consequential, i. e., the results of acts done within the slope of the power granted, arising from a proper exercise of the same and which can in no sense amount to an actual taking of property or divestiture of acquired right, no remedy can, however, be had. Wood on Nuisances, sec. 757, p. 798; sec. 754, p. 796; sec. 655, p. 681.

In the present instance the plaintiff would be entitled to complain if the post had been erected without authority and if the free use and enjoyment of his premises had been materially obstructed, or his property had been taken or damaged without just compensation.

In locating posts of this description, parties entitled to do so, should exercise their right so as to incommode or inconvenience, the least possible, those in front of whose property the poles are to be put. It is nothing but just, that they be held to a strict observance of this duty.

The only question, therefore, which arises in this case, is simply whether the post was erected with proper authority and with due observance of the conditions under which the same was granted.

It clearly appears from the act or statute, invoked by the defendant, (No. 124 of 1880) amending sec. 696, R. S., p. 168, that the right was conceded by the legislature to domestic corporations legally created, to erect poles, abutments and other works necessary for the operating and maintaining of their lines, for the purpose of transmitting intelligence by magnetic telegraph, or telephone, or other system, along all State, parish or public roads and waters; and also along the streets of any city with th e consent of the council, or trustees thereof.

Tlie act provides as conditions that the authorized construction shall not prove an obstruction and that compensation shall be made.

The language used by the lawgiver certainly lacks clearness and precision, but it evidently can mean and means only that the allowed work or construction shall not materially obstruct the necessary use of property, and, that compensation shall be made when private estate, in commerce, susceptible of sale and purchase, whether it belongs to the State or to individuals, or juridical persons, is taken for the purpose of executing the work or construction and of enjoying its use.

The record shows that, in furtherance of the special authority delegated by this act of 1880, municipal permission or sanction was procured from the city of New Orleans, by the exchange company ' which is owned, operated and represented by the defendant, and fails' to establish that it was ever abrogated, or has ceased to have any further effect.

Ordinance 4906, Administration Series, which was the first passed, does not appear to have been interfered with by ordinances 519 and 547, Council Series, subsequently adopted, so as to deprive the company of the. previously conceded privilege of erecting poles for its telephonic pur poses. If, by those ordinances, the city has imposed conditions for her own benefit, which the defendant is bound to observe and has disregarded, the city and not the plaintiff, can alone be heard to complain.

The obnoxious object is represented as a huge and unsightly post, erected by the defendant on plaintiff’s property, whereby his gallery and its supports are injured and complete access and view to and from his premises prevented and a permanent nuisance established.

The evidence fails to show that the erection of the pole, which was put up under the direction of the City Surveyor, obstructs the free ingress and egress, or the view to and from plaintiff’s premises, or has caused him, or even any other citizen, any direct or positive injury, or real damage which is special to either, or which is not common to every person, or that it is in some way unbearable.

It cannot be urged as a serious ground of complaint, that the pole is an obstruction, because it prevents one from leaping from the corner of the sidewalk, across the gutter upon the bridge, through the particular spot on which the port was erected. This is an imaginary inconvenience.

Tt was pressed, besides, that this coiner is sometimes so overcrowded that pedestrians in order to make their way, have to pass or go through plaintiff’s store. This obstruction to circulation surely was not tho post but the crowd. The latter and not the former then should be removed as the impediment.

The evidence shows that the pole was erected in conformity with the requirements in the municipal ordinance in this: That the wires have been laid at such height between 10 and 15 feet, from the top of the gallery in front of plaintiff’s property, as not in the least, to obstruct the application and free use of ladders in case of conflagration either in reaching the top of the veranda, or resting another ladder, on that top.

But, even if the plaintiff or pedestrians are put to some little inconvenience, it is such as is unavoidable and must be endured. It is dammm, absque injuria.

The authorities relied upon by the plaintiff to bear out a claim for compensation, can receive no application in this State, in which abutting proprietors are not recognized as having a fee in the sidewalks or streets in front of their estates, which are considered as public property, B. C. C. 454, 458, belonging to all in common, over which the State and political organizations' deriving their existence and powers from her, have all the control, the exercise of which, the organic law does not forbid. The power thus exercised, is not one of expropriation, but, of appropriation, or of regulation of the use of such public property.

In the present controversy, we are satisfied that the erection of the telephone pole complained of, was accomplished with anterior proper authority, after compliance with all conditions precedent imposed by the State and the city, with as little inconvenience as possible to the. plaintiff and to the public; that if such construction and the use of the pole be an actual nuisance, at all, it is such as does not materially interfere with the comfortable enjoyment of plaintiff’s property and as c auses little or no harm or injury to any oue, which is easily bearable and which has to be endured in view of the great public service which the use of it renders, and that nothing shows that the defendant has transgressed the authority granted, or ill used, or misused, or abused the same so as to justify any plausible complaint.

The judgment of the lower court was correctly rendered in favor of the defendant.

It is affirmed with costs.

Eehearing refused.

Dissenting Opinion.

Manning J.

The streets of this City do not belong to the corporation-They are the property of the public and the public has the right to the use of them. A permanent obstruction interferes with such use and to a certain extent prevents it. A railed track for a tramway is permanent but the car that passes over it is in no spot more than a moment. This post is fixed for good and all. Private property may under certain conditions be taken for public use, but, public property cannot be taken for private use. The telephone company is a private person seeking its own personal gain. Neither the City Council nor the State legislature can give the property of an individual to a telephone company nor impair its enjoyment by obstructing access to it. I think the plaintiff should have judgment.


author: Poché, J. Fenner, J. Manning, J.

text:
    No. 9214.
    New Orleans Female Orphan Asylum vs. J. D. Houston, State Tax Collector.
    The property of the New Orleans If cm ale Orphan Asylum is entitled to the same exemption from taxation which has been extended to, and judicially recognized in favor of the Poydras Orphan Asylum- Act Uo. 96 of 1844; 33 Ann. 850.
    That exemption extends to other property, such as stores owned by the corporation and rented for revenue, which is used exclusively for the charitable purpose of maintaining the asylum, as well as to the property actually used and occupied as an asylum.
    APPEAL from the Civil District Court for the Parish of Orleans, Bightor, J.

      T. Gilmore <& Sons for Plaintiff and Appellant.

      'Blame & Butler, for Defendant and Appellee.
   , The opinion of the Court was delivered by

Poché, J.

Plaintiff resists by injunction the collection of State taxes for the years 1874, 1875 and 1876, on the ground that the property on which said taxes are levied is exempt from State and municipal taxation.

The answer is a general denial, and judgment was rendered in favor of defendant. Plaintiff appeals.

The principal contention of the defendant is that the property alleged to be exempt from taxation, consists of stores which are rented for income, and are not actually used as an orphan asylum.

With the exception of a difference in dates, the facts and circumstances involved in this case are absolutely identical with the points presented, discussed and disposed of in the case of the City of New Orleans vs. Poydras Orphan Asylum, 33 Ann. 851. As was the case with the Poydras, the charter of this asylum is silent on the subject of exemption from taxation; and like the former its exemption resulted from subsequent legislation, and as was the case with the Poydras Asylum, the property sought herein to be exempted is not the building actually used or occupied as an asylum, but consists of other property which is rented, and the revenue of which is used exclusively for the maintenance of the asylum, and for the support of its inmates.

Act No. 96, approved March 25, 1844, which exempts the property of this corporation from taxes, specially provides that the exemption therein granted shall be precisely similar to that extended to the Poydras Asylum under the provisions of the Act of March 12, 1836.

The similarity of the two cases is so apparent, that any reasoning whi^h we could use in the present case would be a mere repetition of the discussion of the Poydras case, and would serve no useful purpose.

Defendant can derive no strength or relief from the opinion in the case of the City of New Orleans vs. St. Anna’s Asylum, 31 Ann. 292, for the reason that that decision has recently been reversed by the Supreme Court of the United States. 105 United States Reports, p. 362.

Under the conclusions announced in the Poydras Asylum case, plaintiff is unquestionably entitled to the exemption claimed.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that the assessments of plaintiff’s property for taxes be cancelled and annulled, and that the injunction herein granted in limine be made perpetual at defendant’s costs in both courts.

Concurring Opinion.

Fenner, J.

I yield my concurrence in this decree under the principle of. stare deeisis.

I have sought in vain for a single substantial feature distinguishing this case from that of the City vs. Poydras Asylum, 33 Ann. 851.

In the report of that case will be found a full statement of the cogent reasons which prompted my dissent from the decree therein. One of the strongest of those reasons was that it was contrary to prior decisions on the same subject, in -which connection I used the following language: “It is, to my mind, a violation of the cardinal rule that constitutions should receive an unvarying interpretation. ‘The meaning of a constitution/ says Judge Cooley, is fixed when it is adopted, and it is not different at any subsequent.time when a court has occasion to pass upon it.’ It is not made to mean one thing to-day and another thing to-morrow.”

These principles are entitled to application here.

Tt would be a scandalous commentary upon the uncertainty of even the organic law and the vacillation of courts, if, as regards two orphan asylums having precisely the same right, vve should grant exemption to one and refuse it to another.

Misera estservitus ubi jus vagum cmt incertum est. Then, obedience to law becomes an intolerable hardship. In matters of constitutional rights especially, it is the duty of courts “to keep the 'scale of justice even and steady and not liable to waver with every new judge’s opinion,”

I take occasion to say, however, that I do not hold myself bound by this rule, except so far as identical cases are concerned.

For these reasons I concur in the decree.

Dissenting Opinion.

Manning, J.

The permission given by the Constitution of 1868 to the legislature to exempt from taxation property actually used for charitable purposes was uniformly construed by the courts organized thereunder to restrict the exemption to property while in actual use, and to exclude from exemption all property leased for profit although the rents formed the income which was used for charitable purposes. N. O. v. Mechanic Soc. 27 Ann. 436; N. O. v. St. Patrick Hall, 28 Ann. 512; N. O. v. St. Anna Asylum, 31 Ann. 292.

It is true the St. Anna Asylum decision was reversed on a writ of error, but for the reason that the charter of that institution contained the exemption and created a contract which could not be violated, and this inviolability was pleaded in bar of the claim for taxes. No such claim is made in this case nor could be. The exemption was by legislative act after the incorporation of the plaintiff asylum.

The whole subject came under review in the Poydras Asylum case and was so exhaustively treated as to render a renewal of the discussion both unnecessary and tedious. I content myself with saying that the dissenting opinion of Mr. Justice Fenner in that case expresses my views, and for the reasons therein given I dissent from the majority opinion in this case,

I recognise however the injustice that would be done by subjecting the plaintiff, and other charitable institutions in eonsvmili' casu, to the payment of taxes while the Poydras Asylum has been decreed exempt, and T shalL in future adopt the ruling in that case as final.


author: Todd, J.

text:
    No. 9264.
    B. Saloy vs. P. B. and A. Dragon.
    The lessor of a plantation by bonding the property provisionally seized for Ms rent, cannot thereby defeat the privilege of the plantation laborers thereon, who have intervened in the suit prior to the bonding, asserting their privilege.
    25br is it necessary to preserve the privilege of such laborers, that they should demand a separate appraisement of the crops seized prior to the bonding or to judgment rendered.
    A workman or mechanic who repairs the sugar-house and the machinery therein, is not entitled to a privilepe on the crops or other property subject to the laborers’privilege. The plantation laborers are entitled to a superior privilege over the lessor only on the crops; as to the residue of the property subject to the two privileges, tbeir privilege is concurrent with the lessors.
    All laborers on a plantation who are omployed in the planting, cultivating, gathering and preparing a crop for market, and in work connected therewith or auxiliary thereto, are equally entitled to the privilege provided by Act 3217, C. C.
    A PPEAL from the Twenty-fourth District Court, Parish of Piaqueii mines. JAvaudais, J.

      TS. R. McOaléb for Plaintiff and Appellant.

      James Wilkinson and Bobert Ringle for third opponents, Appellees.
   The opinion of the Court was delivered by

Todd, J.

This ease presents a controversy between tbe lessor of a plantation and the laborers thereon.

Tlie plaintiff sued out a provisional seizure and under it caused tlie crops on. the plantation and other movable effects to be seized for tbe rent.

. A number of the laborers and employees intervened in tbe suit and asserted a superior privilege on the property seized to the lessor.

After the filing of these interventions or oppositions, the property seized vos bonded by tbe lessor.

The case was tried and from a judgment maintaining the oppositions the plaintiff has appealed.

1. Tlie first contention of the plaiutiff’s counsel is, that the opponents or intervenors did not demand a separate appraisment of the sugar and molasses from the other movables provisionally seized by the lessor, and, that from this omission, the property having been bonded by the lessor, they had lost their privilege on the same.

It does not appear from the record that there was any judicial sale of the property made or ordered, and it is only in case of such sale of property subject to conflicting privileges that the question of a separate appraisement arises.

Besides, the condition of the bond executed by the plaintiff was to produce the property, to meet the judgment or pay such judgment, and even if a separate appraisement was necessary to the preservation of the opponent’s privilege, there would be time enough to cause it to be made, when the plaintiff in compliance with his obligation produced the property to meet the judgment.

The question of a separate appraisement is, therefore, prematurely raised. The interventions were seasonably filed, whilst the property provisionally seized was still in the possession of the sheriff. There was no authority for any party to the suit to cause it to be sold during the pendency of the proceedings, unless on account of its perishable condition and no such demandfor its sale was made for that cause. The opponents in their petition claimed a privilege on the property, and the plaintiff could not deprive them of their privilege or destroy the same by securing its release from the custody of the law by bonding the same. If the plaintiff desires to avail himself of the plea of a separate appraisement, he should first have produced the property, that it might be judicially sold, but, should he not choose to do so, or should he already have disposed of it, he must pay the privileges of the intervenors therein as recognized to the extent at least that the judgment already rendered by the District Court, may be affirmed,

He cannot bond the property, retain it or dispose of it, and then set up to defeat the privilege of the intervenors, that no separate appraisement of the property had been demanded by them, when no occasion had arisen for such demand.

We do not pretend to decide that, in the event that the property had been sold under the judgment, any separate appraisement of the crops would have besn necessary to the preservation or enforcement of the privileges claimed by the intervenors, It is unnecessary to decide this point.

2. There were a number of laborers who had only been employed at the grinding season, and whose work was performed in the sugar-house in the making of the sugar, and it is denied by the plaintiff’s counsel, that such laborers are entitled to any privilege on the crops or the movables on the plantation.

vVe have attentively examined the law and the articles of the code, according a privilege to the laborers on plantations, and we think a fair construction of them warrants the conclusion that it was the legislative intent to confer this privilege on laborers who worked upon the crop in any and all of its stages in the planting, cultivating, gathering and preparing it for market, and who performed any work on the plantation required for such purposes or incident thereto.

We think, therefore, that the judgment allowing a privilege to this class of laborers was correct.

3. The privileges claimed by Leopold and Crawther ‘as transferrees of , the claims of certain laborers against their employers, are opposed on the ground that these parties were not subrogated to the privileges of the transferrors; and, Crawther’s claim on the further ground that his debt was novated by a draft of the defendants which was not paid and not protested.

There was no express subrogation from the laborers necessary; the transfer of this claim carried with it the transfer of the privileges as accessories thereto. C. C. 2645. We are confirmed in this conclusion by the decision in the case of Laloire vs. Wiltz, 31 Ann. 430, which has an important bearing on this question.

Nor was Crawther’s account novated by the draft. He does not sue upon the draft, but on the account. There was no express acknowledgment that the account was paid by the draft. Novation is not presumed. 31 Ann. 221; 32 Ann. 822 ; 34 Ann. 535.

4. The claim of Jas. P. Loga for $98 is opposed on the ground that he was not a plantation laborer, but his account was for repairing the sugar-house and holping to repair the machinery; and as a night watchman in the sugar-house. It is not shown how much of the account was for his services as watchman, and it is clear, that his work in the buildings and machinery mentioned, gave him no privilege on the crops or movables on the place, but his privilege must be enforced against the buildings he repaired, under Art. 3249, C. C. This privilege was improperly allowed.

5. We think there was error also in that part of the judgment, which allowed these intervenors the first privilege on all the property provisionally seized, and requiring them to be paid out of the first proceeds of the same.

The third clause of Art. 3217, C. C., confers on the lessors of immovables and the laborers employed thereon a privilege on the same things—the crops and .movables—but, the last clause of that article and act, 3259, n. C., give the first privilege to the laborer only on the crops, leaving the privileges for rent, and labor concurrent on all the residue of the property subject thereto.

With these two corrections, we think the judgment in other respects should remain undisturbed.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be amended by rejecting the privilege allowed therein to Jas. P. Loga on the property provisionally seized for ninety-eight dollars, and by limiting the first privilege awarded the other intervenors or opponents to the sugar and molasses seized, or its proceeds, out of which only they are entitled to be first paid; and as thus amended, the judgment is affirmed, appellees to pay costs of appeal.


author: Manning J.

text:
    No. 9261.
    Joseph Oteri vs. Salvador Oteri.
    ■Where a partner lias retained tlie right to dissolve the partnership at his pleasure and on a given day orders the books to be balanced for the purpose of ascertaining the interest of the retiring partner, but on the completion of that work fails and neglects to pay tho sum thus found to be due, and the retiring partner remains in daily attendance and does in the business of the firm precisely what he had always done without remonstrance or complaint of the dissolving partner, the partnership will be held to have continued until this latter has abandoned his position or has been driven from it, or the former has done some overt act signifying that the dissolution has already taken place.
    Where an error lias been made in tho judgment of the lower court in favour of the appellee which he endeavours to correct, and applies to the lower judge to correct it and to the _ opposing counsel to permit its correction, he will not he mulcted in the costs of appeal because this court does what he vainly endeavoured to have done below.
    APPEAL from the Civil District Court for the Parish of Orleans. _ Monroe, J.

      Jos. P. Hornor and F. W. Baker for Plaintiff and Appellee.

      W. S. Benedict and J. W. G-nrlei/ for Defendant Appellant.
   The opinion of the Court was delivered by

Manning J.

The plaintiff and defendant are brothers and were partners in the fruit and general commission business. Under their partnership articles Salvador bad the privilege of dissolving the linn at pleasure and of continuing the business thereafter on ids own account, in which case no liquidation of its affairs was to be iiad, but the books were to be at once balanced and the amount found to tho credit of Joseph thereon was to he paid to him in full of Ids interest in the partnership. They quarreled on the first of August 1883 and the bookkeeper was ordered by Salvador to balance the hooks for the purpose of ascertaining Joseph's interest. This occupied several days but was finished about the l()th. or 12th. and disclosed his interest to he $28,942,83.

Joseph accepted the statement as correct and was ready to receive the sum thus reported to be due. Some objection was made that a waggon and team and other articles were not included, and five hundred dollars was agreed to cover his interest in them. Salvador delayed paying these sums until the 24th. of August, but on that day they were paid in full and publication -was made that the firm was dissolved on the 1st. This advertisement was made by Salvador.

Joseph maintains that the firm was dissolved on the 24th. and this suit is for the recovery of his half of the profits from the 1st. to the 24th.

During this interval Joseph remained in the shop and attended to his usual duties—the same duties he had attended to before. One of these was to draw and sign cheques on the banks, and this he did down to the last day. He even drew and signed with the firm name the cheque for twenty eight thousand and odd dollars that paid his interest. That being done with Salvador’s assent, who until then refused or hesitated to pay, Joseph announced to the clerk, salesmen, and other employees that his connection with the firm had ceased and went his way.

Of course Joseph could not by any particular line of conduct establish that the partnership lasted until the 24th if it really ended on the 1st. That would shew only his construction of it, but Salvador’s conduct tallied with his brother’s. He saw his brother daily taking the same part in the management of the business that he had hitherto done, keeping the petty cash and paying it out, drawing cheques for the daily transactions of the firm, etc. and did not forbid it nor make any objection to him. It seems he talked with his lawyer about ejecting his brother but no complaint was made by him to Joseph of interference with the business. The latter had announced his intention to quit so soon as he received payment of his share, and would have quitted when the books were balanced and his interest ascertained had the amount due him been then paid. He did quit the day it was paid, and refused to sign the receipt reciting- that it was in full of his share up to the dissolution, asserting then as he does now that the books were balanced only up to the 1st. and therefore shewed only what was his share up to that date.

It is not pretended that Joseph was employed in any subordinate capacity. His supervision and management of the firm business was the same between the 1st. and 24th. that it had always been. Those departments of the business that were under his care before the 1st. continued under Ms care until the 24th. in full View of Salvador and tacitly with his consent. The partnership ended on the 24th. and Joseph is entitled to his share of its profits up to that date.

There is a grave error in the judgment below in decreeing the plaintiff one half of $8,731.23 the profits of the trip No. 20 of the steamer S. J. Oteri. This item is not included in the petition and no evidence was offered touching it. The error was caused doubtless by the fact that a commission .upon the cargo of that trip was the item claimed and upon which evidence was introduced. That commission is $876.95, one half of which is claimed by the plaintiff. The cargo was not sold until after the 24th. viz on the 26th., but the commission is for advancing and securing the cargo as well as for selling it, and for the former the money and credit of the firm was used. We shall allow the plaintiff one fourth of the entire commission $219.24.

There was omitted from the judgment below the item of $221.50 commission on the cargo of the schooner Santo Oteri which was sold between the 1st and 24th. August one half of which is due the plaintiff.

While the judgment is to be amended in the plaintiff’s favour in these respects, the excision of the large item of over eight thousand dollars or the half of it would throw the costs of appeal upon Mm, but for the fact that the item is not there through Ms fault. He called the lower court’s attention to the error and pressed for its correction, and asked the opposing counsel to consent to its correction. He could do no more.

As the error is none of his and he did all he could to have it corrected in the trial court he should not be mulcted in costs. Kohn v. Schooner Renaisance, 5 Ann. 25; Bandoin v. Tete 10 Ann. 69.

It is therefore ordered and decreed that the judgment of the lower court is amended by striking out “ one half of eight thousand seven hundred and thirty one 22-100 dollars,” and by inserting therein two hundred and nineteen 24-100 dollars being one fourth of the commission upon the cargo of the steamer S. J. Oteri on trip No. 20, and also inserting one hundred and ten 75-100 dollars being one half of the commission upon the schooner Santo Oteri, and as thus amended that it be affirmed, the defendant to pay costs in both courts.

Rehearing refused.