text:
    No. 14,087.
    State ex rel. J. B. Watkins vs. North American Land and Timber Company, Limited.
    Syllabus
    1. A foreign corporation, not engaged in commerce, or in the service of the United States, can, lawfully, do business in Louisiana only upon the conditions imposed by the law of the State.
    3. Where such corporation has so far complied with the law as to establish an office in this State and designate an agent upon whom process may be served, service upon such agent vests the court issuing the same with jurisdiction to hear and determine the cause, irrespective of the citizenship of the plaintiff or the subject matter of the controversy.
    3. But, complete jurisdiction includes, not only the power to hear and determine, but the power to enforce the determination, and as courts are averse to the exercise of authority which they are unable to vindicate by process, they will, usually, decline to exercise a jurisdiction, intended to be complete, which falls short in the latter respect.
    4. Hence, the courts of a State will not, ordinarily, entertain suits involving the exercise of visitorial power over foreign corporations, nor will they, ordinarily, undertake to regulate the internal management of such corporations ; but, this rule is subject to the same exceptions as the necessity upon which it is founded, and where, in a particular case, a court acquires complete jurisdiction, and is able, not only to hear and determine, but to enforce the determination in such a manner as to do complete justice, the jurisdiction will be exercised, although the result may be the regulation o£ the internal affairs of a foreign corporation.
    5. Where a foreign corporation doing business here, fails to keep within this State the books required by the Constitution, and there is no officer of such corporation, having the custody or control of such books, within reach of the process of the State courts, mandamus will not issue commanding that inspection thereof ‘be allowed, but where there are other books, within the State, and in the custody of an agent of such corporation who is within reach of the process of the State courts, mandamus may issue commanding that such inspection be allowed, to a stockholder, whether resident or nonresident.
    6. Nor will, such relief be denied because of a provision, in the charter, or by laws, of the corporation, to the effect that differences, thereafter arising between the corporation and its members shall be submitted to arbitration, such stipulations whereby persons undertake to shut the doors of the courts with regard to matters to arise in the future, not being enforceable.
    APPEAL from the Fifteenth, Judicial District, Parish of Calcásieu, —Miller, J.

      Thomas T. Taylor and Cline & Cline, for Eelator, Appellant.

      Pujo <& Moss, for Eespondent, Appellee.
   Statement op the Case.

The opinion of the court was delivered by

Monroe, J.

The relator, claiming as a stockholder, seeks to enforce, by mandamus, his right to inspect the books of the defendant corporation. To the proceeding, originally filed, an exception was interposed to the effect that it was directed against the manager of the company, alone, and that there had been no prayer for citation and no citation of the company, and, upon appeal to this court, the exception was maintained, and the case remanded for “amendment of the application * * * and in order that legal service may” (might) “be made of the order o.r writ calling the defendant into court,” the costs of the appeal to be paid by the relator and those of the lower court to await final judgment. .

State ex rel. Watkins vs. North American Land & T. Co., 22 S. 910.

Thereafter the original petition was amended, and both petitions, taken together, allege in substance:

That relator resides in the State of Kansas, and that respondent is an English corporation, here represented by Arthur V. Eastman, who has been designated, agreeably to the law of this State, as the person upon whom process may be served;, and who has established, at Lake Charles, in the Parish of Calcasieu, an office in which is kept “all the books of account, of sales of land, and all other transactions of said company, and all other books of every description and all accounts necessary to be kept for the information of said company, its stockholders and directors, and for the proper conduct and management of its business in this State;” that the relator is the owner of stock in said company of the par value of about $190,000, but, by reason oi a -abal between the stockholders and directors in England is deprived of all voice, management and control in the direction of its affairs; and that, in order that he may be informed of its present-condition and past transactions, and may so exercise his rights as to prevent mismanagement, correct abuses, extravagance and waste and protect himself from irreparable loss and injury, it is necessary that he should be allowed to inspect all the books, accounts, papers and correspondence of said company, and that application to that effect was made by his duly authorized agent and denied by the representative of the company. Wherefore relator prays the court to order the issuance of an alternative writ of mandamus, commanding the said North American Land and Timber Company, Limited, to appear and show cause why the relator should not be permitted to examine and inspect the record of the amount of capital'stock subscribed and of transiera thereof, the names of the owners of stock, the amounts owned by them, respectively, the amount of stock paid and by whom, the amount of its assets and liabilities, together with all other books, papers, letters received and copies of answers thereto kept,' used, received, sent- and exchanged in the transaction of business by said respondent company,” etc.

To this petition and the order to show cause made thereon the company excepts and pleads as follows:

“That respondent has not in its posssession in its office at Lake Charles any of the books enumerated in Article 273 of the Constitution of 1898, or in relator’s application, but that such books and all its other corporate records are kept in its office at London, England, the legal-domicile created by the charter to which relator was one of the original subscribers; that the contract existing between relator and respondent by reason of relator’s being a stockholder in said company was entered into in England, a foreign country; -that relator is also a non-resident of the State of Louisiana, for which reason your Honorable court has no visitorial power of the organization of respondent company, its corporate functions, by-laws, or over the relations existing between respondent and its members and their respective rights and obligations arising under the law of said company’s creation, for which cause your said Honorable Court is without jurisdiction of the subject-matter of the suit, and the remedy sought is beyond the reach of the court and not within the sovereign power of the State from which this court has its authority; * * * that Act 149 of 1890 does not subject the company to the jurisdiction of this court for any cause of action, but merely requires the appointment of an agent upon whom service of- process can be made, or, in other words, it was not the intention of said act to give the court jurisdiction over causes of action accruing out of the State against a corporation created and existing beyond the limits of the State, and your Honorable court is without jurisdiction' ratione materias, unless the cause of action existed against the company independently of the mere fact of its being represented by an agent within the State.”

Reserving the benefit of this exception, the respondent further pleads, in substance:

That since the filing of the original petition herein and the judgment thereon the relator, through the instrumentality of a receiver, appointed by the Circuit Court of the United States for the Western District of Louisiana, and ■ through an expert, acting as his ' agent, obtained possession of all the books kept at its office in Lake Charles, inspected the same and made copious extracts and memoranda therefrom, and is not entitled to further investigation, and that the present application is made for no other purpose than to harass and annoy this respondent.

That respondent was organized in 1882, under the law of England, and that relator was one of its organizers and signers of its charter. That Article 126 of said charter provides that “the directors shall, from time to time, determine whether or to what extent and at what time and place and under what condition and regulations the accounts and books of the company, or any of them, shall be open to the inspection of the members, and no member shall have the right of inspecting any account or book or document of the company except as conferred by statute or authorized by the directors or by resolution of the company in general meeting.” That relator does not allege that he'has been granted the right claimed by statute or otherwise, as contemplated by said article, the provisions of which are binding upon him as a matter of contract.

That Article 147 of said charter provides that “If any dispute shall arise between the company and any of its members or any of the officers, directors or creditors, as such, touching any matter within the purview of these presents, the matter in dispute or difference shall be submitted for final decision to two arbitrators or their umpire, pursuant in all respects to the provisions in that behalf of the Common Law Procedure Act of 1854 or any then existing statutory modification thereof, and this article shall be deemed to be a submission by all the parties above referred to to arbitration, and may be made by any of the parties a rale of any division of the high court of justice; and the award of such arbitrators or their umpire shall be absolutely binding on all of said parties.” And that the relator is bound thereby with respect to the matters involved m this proceeding.

And, reserving the benefit of said plea, respondent denies generally the allegations of relator’s petition and avers that the only books in its possession in this State are such as are necessary to be kept by its agent, Austin V. Eastman, and that such books are not, in the eye of the law, corporate books and records, all of which latter are kept at its home office in London.

It appears from the evidence that the repondent company was organized in England in 1882, under the authority of certain acts of the British Parliament, and that the “Memorandum of Association,” as also what are called “Articles of Association,” constituting, together, its charter, were signed by the relator, with other subscribers. The declared purposes for which the company is established are multifarious, including the buying and selling of lands in the United States of America, or elsewhere.” the idea conveyed being that whilst operations may be conducted elsewhere, this country was the field immediately in view. The capital stock of the company was fixed at 500.000 pounds and subsequently reduced to 850,000 pounds, of which the relator appears to be the owner of 28%%- Shortly after its establishment the company appointed the relator its agent and general representative in this country, and he held that position until 1896, when the present incumbent was appointed in his stead. In the meanwhile, though vast tracts of land had been purchased, and the company was registered as doing business and as having .an office and an agent upon whom process might be served in this State, such of its books as are particularly specified in relator’s petition have been kept in England and have never been brought within the State of Louisiana. Being asked his reason for wishing to inspect said books, relator, testifying as a witness in his own behalf, said: “I desire to inspect the books to see which land of the North American Land and Timber Company has been sold, and at what price it was sold, and upon what terms of payment. I have received the impression, from common report, that a very large portion of the. land of the company that is susceptible of cultivation has been sold,. * * * I want to inform myself of the exact situation, because I understand several hundred thousand dollars’ worth of land has been sold during the last four or five years, and during all of this time I have been paid, in dividends upon my stock, only two and one-half per cent. I want to ascertain, if possible, where this money is that has been received for land. On the day I arrived in Lake Charles I was informed and read in the newspapers that this Mr. Eastman had sold more than one hundred thousand acres of land, and when inquiry was made of him as to the terms and conditions of that sale, his answer was: “I have no information to give out.” I wunt to know upon what terms and conditions that hundred thousand acres of land was sold, because my interest in that land amounts to twenty-eight and one-quarter per cent.” After the case was remanded by this court, in May of the present year, a receiver was appointed to the respondent company by the Circuit Court of the United States, and, during his administration, which lasted until the decree appointing him was reversed on appeal, he afforded access to the books which had come into his possession to an agent whom the relator had selected to examine them and who reported the result of his examination to his principal. This was not done with the consent of the respondent, however, and the question of the right of the relator to make such examination remains to be determined, and has been and is persistently denied.

Opinion.

As the repondent corporation is a mere creation of foreign law and is engaged neither in commerce nor in the service of the Federal government, it was within the power of the State of Louisiana to exclude it from her territory, or to admit it upon such conditions, reasonable or unreasonable, as she thought proper to impose. In the absence of special legislation, the respondent was at liberty to enter the State for the purposes of its business, as a matter of comity, and subject to no other conditions than that it would conform to the public policy of the State as declared in her general law and the decisions of her courts. But the State having imposed certain conditions by both her fundamental and statute law, the respondent must be presumed to have accepted and did in part specifically accept them when it engaged in business within her territory, and is bound by them accordingly. Articles 245 of the Constitution of 1879 and 273 of the Constitution of 1898, respectively, provided, and now provides, that “Every corporation organized or doing business in this State * * * shall have and maintain a public office or place in this State for the transaction of its business where transfers of stock shall he made and where shall be kept, for public inspection, books in which shall be recorded the amount of the capital stock subscribed, the names of the owners of stock, the amounts owned by them, respectively, with the date of transfer, the amount of its assets and liabilities, and the names and places of residence of its officers.”

Articles 236 of the Constitution of 1879 and 264 of the present Constitution, respectively, provided, and now provides, that “No * * * foreign corporation shall do any business in this State without having one or more known places of business and an authorized agent or agents in this State upon whom process may be served.”

Article 245 of the Constitution of 1879 has been held to require no legislative action to give it effect. State ex rel. Bourdette vs. Gas Light Co., 49th Ann. 1559.

Act 149 of 1890, entitled “An act to carry into effect Article 236 of the Constitution of 1879,” reads: “Section 1. * * * That it shall be the duty of all corporations domiciled out of the State, doing business in this State, excepting mercantile corporations, to file in the office of the Secretary of State a declaration of the place or locality of its domicile, together with the name of its agent or officer in the State representing said corporation, upon whom service of process may be made. Section 2. * * * Whenever any such corporation shall do any business of any nature whatsoever in this State without having complied with the requirements of Section 1 of this act, it may be sued upon any cause of action in the parish where the right or cause of action arose, and service of process may be made upon the person or persons, firm or company transacting such business for such corporation, and each person or persons, firm or corporation shall be deemed the agent of the corporation upon whom service can be made.”

The respondent has accepted and has complied with the conditions thus imposed in that it has maintained an office in this State and has designated a person upon whom process may be served, but it has not complied with them in that it has failed to keep in such office the books required to be kept there, and it claims that service of process upon the agent whom it has designated to receive the same confers upon the courts issuing such process jurisdiction only in a certain class of cases.

■ Whether we assume that laws are enacted exclusively in the interest and for the protection of the people who enact and are to be governed by them or that they are also intended in a spirit of interstate and international comity, to prevent the territory throughout which thev may be enforced from being used as a field of operations fqr the infliction of injury upon others, no good reason suggests itself why foreigu corporations, establishing permanent agencies in a State, should not be required to furnish the same facilities for the obtention of information as to their status and for the obtention of legal redress as the corporations established by such State. And it was probably because it was thought that no such reason exists that the framers of the last preceding and present constitutions of Louisiana, the one adopted after nearly twenty years’ experience of the other, incorporated in these instruments the articles which have been quoted, and which apply in identical terms to both foreign and domestic corporations. It will be observed that the requirement upon the subject of books does not demand original books of entry, save such as are necessary in transferring stock, but merely exacts that “books” containing certain information shall be kept in the office of every corporation organized or doing business in this State, and that such books shall be open for public inspection. If the corporation is organized here, its original books will, of course, meet the requirement. If it is organized elsewhere and is doing business here, the requirement may be complied with by its keeping books containing the necessary information obtained from the original books at the home office, through the mails, or otherwise. It may be considered settled jurisprudence in this State that such books are not open to the inspection of persons without interest, or to the unreasonable inspection of persons who are interested; but, whatever may be the method adopted for that purpose, the books must be kept as required, or the business of the corporation is illegally conducted. When, therefore, the respondent avers and shows that it has been engaged in business in Louisiana for more than seventeen years, but that the books required by the Constitution of the State to be kept in its office have never been and are not now so kept, it avers and shows that for more than seventeen years it has conducted and is now conducting such business in violation of our fundamental law. What the penalty may be, and at whose instance, and in what manner it may be enforced need not now be considered.

The plea to jurisdiction is based on the proposition that the constitutional and statutory law which has been quoted was intended to confer upon the State courts jurisdiction only in suits brought by citizens of Louisiana against foreign corporations engaged in business here upon contracts entered into or causes of action arising in this State, and that service of process on the agents of such corporations, designated in compliance with that law, should not be held to confer jurisdiction in other suits, and without regard to the citizenship of the plaintiff's or the subject-matter or place of origin of the controversies. Proceeding to the consideration of this proposition, we find nothing in the law in question to warrant the conclusion that it was the intention to discriminate in favor of the citizens of Louisiana in the matter of bringing suits against foreign corporations, the discrimination made by the second section of the statute relating only to the place of origin of the right or cause of action, and operating as favorably to citizens of other States and countries as to citizens of this State. If, therefore, the present action would lie in favor of a citizen of Louisiana, it will lie in favor of the non-resident relator; and all the more is this true if the relator is a citizen of the State of Kansas, since the Constitution of the United States in such case secures to him, in Louisiana, all the rights, privileges and immunities which the State of Louisiana accords to her own citizens. Nor do we find anything in that law whereby the jurisdiction acquired by service of process upon an agent authorized by a foreign corporation to receive the same is limited to any particular class of cases.

The present doctrine upon that subject is thus stated by a recent writer: “In all the States statutory methods are now provided for the service of process upon foreign corporations which are doing business in the State. Where a corporation accedes to such provisions, as to service, and accepts them as a condition upon which it may do business in the State, the court acquires complete and perfect jurisdiction over it, and may render a judgment in personam against it, and such a judgment is entitled to full faith and credit in other jurisdictions.”

Elliott on Private Corporations, 2nd Ed., p. 201.

This doctrine has long been approved in Massachusetts, where it has been held that “a non-resident may sue a foreign insurance company, which does business in that State, on a contract made in another State, where the subject-matter of the contract is also situated, although the only service made is on the insurance commissioner whom all foreign insurance companies are required to appoint as their attorney for the service of process.” Taylor on Private Corporations, 392; citing Johnson vs. Trade Ins. Co., 132 Mass. 432; Wilson vs. Fire Alarm Co., 149 Mass. 24.

The English courts have gone further and now hold that where a foreign corporation establishes a permanent branch agency in England it may be sued through the agent in charge of such branch in the same manner as domestic corporation, whether the agent is specially authorized to accept citation or not. And Morawetz says upon this subject: “However, if a corporation open an office or habitually transacts business in a foreign State, the head officer there must be deemed an agent of the company for the purpose of receiving service of process, and, under these circumstances, service upon the officer is binding upon the company itself.” Private Corporations, Morawetz (1st Ed.), 523; citing Newby vs. Von Oppen & Colts Patent Firearms Mfg. Co., L. R. 7 Q. B. 293. 296. see, also, Commentaries on Law of Corp’s, Thomson, Vol. 6, Par. 7990.

, The Court of Appeals of New York, sustaining the provisions of the Code of Civil Procedure to that effect, has gone still further, and holds that a citizen of that State may sue a foreign'corporation upon any cause of action, no matter where originating and no matter whether the corporation has engaged in business or has appointed an agent to receive service of process in the State or not, service upon one of its officers, found within the State, whether there upon his own business or otherwise, being considered sufficient to bring the corporation into court, provided the service upon such officer would have been sufficient at the domicile of the corporation. Pope vs. Mfg. Co., 87 N. Y. 137.

It is not necessary, nor would we be disposed to adopt the extreme view last above referred to. On the contrary, we might hold that the jurisdiction acquired by service of process on respondent’s agent in this State is confined to cases in which the cause of action arises here, and, nevertheless, maintain the jurisdiction so acquired in the instant ease. Eor, whilst the relator’s right, if he has any, to inspect the respondent’s books may spring from the contract made in England, the cause of action disclosed in his petition consists of the refusal of the respondent’s agent here to permit him to exercise that right.

Jurisdiction, however, when considered in connection with the exercise of judicial functions, “includes the power to compel a person to appear and answer a complaint or to punish him for not doing so; the power to take property in dispute into the custody of the law; the power to compel the production of evidence and hear the contention of parties; the power to determine the question of right between parties and to enforce the determinaton.” Century Diet. Yerbo, “Jurisdiction.” And, where there is a lack of power in either of the directions mentioned, whether because intentionally withheld or because of the incapacity of the grantor to confer it, the jurisdiction may be said to be limited, in the one case, and incomplete or inadequate, in the other. Thus, the power to hear may be granted and the power to determine withheld, or the power to hear and determine may be granted and the power to enforce the determination withheld, or the power to hear, determine and enforce may be conferred, but restricted to particular litigants or subjects, and the jurisdiction may be properly exercised to the limit prescribed with the effect of fully accomplishing the purpose for which it is conferred. But where, from the terms of the grant, it is evidently the intention to confer jurisdiction without limit as to persons or subject-matter, or to confer complete jurisdiction, within certain limits, and the exercise of all the power intended to 'be conferred is necessary in order that the purposes of the grant may be accomplished, but it happens that the grant falls short, in an essential particular, by reason of want of power in the grantor, it follows that the jurisdiction, as conferred, .is incomplete or inadequate, and the question arises whether, if, in a particular case, the purposes of the grant cannot thereby be accomplished, such jurisdiction should be exercised at all.

“It is a fundamental principle of the law of mandamus” (says Mr. High) “that the writ will never be granted in cases where, if issued, it would prove unavailing, and whenever it is apparent to the court that the object sought is impossible of attainment, either through want of power on the part of the person against whom the extraordinary jurisdiction of the court is invoked, or for other sufficient causes, or that the granting of the writ must necessarily be fruitless, the court will refuse to interfere. So, if it is, apparent that the writ, if granted, cannot be enforced by the court, relief will be withheld, since the courts are adverse to exercising their extraordinary jurisdiction in cases where •their authority cannot be vindicated by the enforcement of process Nor will mandamus be allowed unless the act or duty whose enforcement is sought is legally possible at the time; and it is, therefore, a sufficient return to an alternative mandamus that the respondent has no power to do the act required.” High on Extraordinary Legal Remedies, Sec. 14.

“A mandamus will not issue to compel a public officer to perform a ministerial duty when the evidence shows that the performance of that duty by him is a physical impossibility, or that his ability to carry out the mandates of the court depends upon the co-operative action of a third person who is not before the court.” State ex rel. Lacasse vs. Cavanac, 30th Ann. 237.

“The service of the writ of mandamus must be upon the special officer or officers of the municipal corporation who are legally required to do the thing demanded.” State ex rel. Kneeland vs. Shreveport, 29th Ann. 658; State ex rel. Bauman vs. Judge, 38th Ann. 431.

“Where a peremptory mandamus is directed against a corporation, punishment is to be inflicted on the officers of the corporation who, under the charter and by-laws, have power to perform the act commanded by the writ.” Rnc. Pl. & Pr., Vol. 13, p. 813.

Hence it follows that whilst a court may have jurisdiction to hear and determine a cause against a corporation and to render judgment commanding it to perform a particular act, and may also have such power for the enforcement of its judgment, as its grantor can confer, nevertheless, if the corporation has its domicile in a foreign State or country and the particular officers to whom, alone, the necessary compulsion can be applied are beyond the reach of its process, the jurisdiction, as a whole, falls short; and, as the court will be powerless to enforce obedience, the judgment will not be rendered. This consideration, and a further consideration founded on public policy, we understand to be at the base of the well established jurisprudence to the effect that the courts of one State will not ordinarily exercise visitorial power over corporations established under the laws of another State, and will not, as a rule, entertain suits having- in view the regulation of the internal affairs of such corporations. Mr. Taylor says upon this subject: “As the courts of a State will enforce contracts at the suit of a' foreign corporation, so they will entertain actions against it. But the subject-matter of the suit must not be such that the court will decline to assume jurisdiction, as, for instance, on account of its inability to do complete justice in the matter.”

*******

“Courts will not, however, determine matters relating to the internal management of foreign corporations arising between one set of shareholders and persons claiming- to be the officers as well as shareholders of the corporation. But the legal relations between a corporation and its shareholders are to be determined by the law of the home State, and, accordingly, a State will recognize and apply a statute of a home State giving- a corporation lien on its share for debts due to it from the shareholders.” (Citing Wilkins vs. Thorne, 60 Md. 263; North State Copper, etc., Co. vs. Field, 64 Md. 151; Bishop vs. Globe Co., 135 Mass. 132.) Taylor on Private Corporations, 3rd Ed., 292. In another text book we find the doctrine and the reasons therefor stated as follows: “As a general rule, actions brought by stockholders, generally, in equity, to restrain or redress frauds or breaches of trust committed by the directors or officers of the corporation or by a majority of its stockholders in the management of its business and property, can only be brought in courts of the State under whose laws the corporation was created. This rule rests partly on jurisdictional grounds and partly on grounds of policy and expediency. It is indispensable in such an action that the corporation should be made a party in its corporate name and character. This reason alone, in many cases, drives the stockholder to the forum of the State of the corporation, because service of process cannot be had upon the corporation in other jurisdictions. It also rests upon the further consideration that in many eases by reason of the fact of the property of the corporation being situated out of the State it will be impossible for the court to effecuate its judgment, if it renders any. But it is obvious that many cases will arise where these reasons will not be controlling. Take, for instance, such a case as that stated in a preceding section, where a manufacturing corporation migrated with its entire business, corporate books and personnel, from the State of its creation into another State and there did all its business and had all its corporate meetings.”

“We accordingly find judicial opinions which more or less modify the general rule of jurisdiction above stated. One of them is to the effect that though such an action must, in general, be prosecuted in the State under whose laws the corporation has been created, yet injunctions and other auxiliary remedies may be had in the courts of other States.” Moore vs. Swiss Valley Mining Co., 104 N. C. 354; Com. on Law of Corp., Thompson, Vol. 6, p. 8011.

The courts are not altogether agreed as to what acts of a corporation relate to its internal management, and in Maryland it has been held “That, where the act complained of affects the complainant solely in his capacity as a member of the corporation, whether it be as a stockholder, director, president or other officer, and is the act of the corporation, whether acting in stockholder's meeting or through its agent, the board of directors, that then such action is the management of the internal affairs of the corporation; and, in case of a foreign corporation, our courts will not take jurisdiction.”

This is perhaps a correct statement of the minor premise and conelusion of a syllogism, in which, however, the major premise is neither established nor conceded, for, whether a court should exercise jurisdiction in a particular case against a foreign corporation, is, in our opinion, a question to be determined with reference rather to its power to enforce any decree that it may find it necessary to render, in order to do complete justice, than with reference to the possible effect of the suit upon the internal management of the corporation. If, as in the case referred to by Mr. Thompson, a corporation succeeds in migrating into another State than that of its creation and in carrying there its officers and property, and holds its corporate meetings and transacts its corporate business within the jurisdiction of the courts of such other State, so that any judgment rendered by such courts concerning such business can be completely enforced, we know of no reason why controversies as to the regulation of that business, whether arising among the members of the corporation or between them and third persons, should not be determined by these courts. Nor, if books showing the business done by a corporation in a State other than that of its domicile and origin are kept in such other State in the custody and under the control of the officer conducting such business, does any reason suggest itself why a shareholder, having the right to inspect these books, should be driven out of the jurisdiction in which they are kept for the vindication of that right.

Applying these conclusions to the instant case, we are of opinion that under the contract whereby the relator became a shareholder in the respondent corporation the right is accorded him to inspect such books as the law of Louisiana requires foreign corporations, doing business here, to keep open for inspection; but, as the corporation has not complied with the law, and as neither the books nor the officers having the custody and control of them are within reach of the process of the courts of this State, he must seek the vindication of that right in some other jurisdicton.

We are further of opinion, however, that, as to the books, papers, J letters received and copies of answers thereto kept and used in the j transaction of the business of the respondent, and in the custody or : under the control of its agent at Lake Charles, the relator has made1 out a case which entitles him to relief. It is true that it is admissible under our law for persons to submit to arbitration pending lawsuits or existing differences, but it is not admissible in England, where the contract from which the relator’s right arises was made, nor do we think it would be admissible here for persons to stipulate, in advance, that in the event of differences arising in the future they will deny themselves the right to resort to the courts for their settlement. Mr. Justice Story, in his “Commentaries on Equity Jurisprudence,” Sec. 670, says upon this subject: “And where the stipulation, though not against the policy of the law, yet is an effort to divest the jurisdiction of the ordinary tribunals of justice, such as an agreement in case of dispute to refer the same to arbitration, a court of equity will not, any more than a court of law, interfere to enforce the agreement, but it will leave the parties to their own good pleasure in regard to such agreements. The regular administration of justice might be greatly-impeded or interfered with by such stipulations if they were specifically enforced.” This doctrine was approved by the Supreme Court of the United States in Home Insurance Co. vs. Morse, 20 Wall. 445, from the opinion in which case we excerpt the following:

“In Scott vs. Avery” (5 H. L. 811) “the Lord Chancellor says: ‘There is no doubt of the general principle that parties cannot by contract oust the ordinary courts of their jurisdiction. That has been decided in many eases. Perhaps the first I need refer to was a case decided about a century ago.’ (Kill vs. Hollister, 1 Wilson, 129.) That ease was an action on a policy of insurance in which, there was a clause that in case of any loss or dispute it should be referred to arbitration. It was decided there that an action would lie, although there had been no reference to arbitration. Then, after the lapse of half a century, there occurred a case before Lord Kenyon, and from the language that fell from that learned judge, many other cases had probably been decided which are not reported. But in the time of Lord Kenyon occurred the case which is considered the leading case on the subject, of “Thompson vs. Charnock” (8 T. R. 139.) The case thus referred to related to an agreement, contained in a charter party, to arbitrate differences which might arise, and it was held that it should not be enforced. In the case before us, the evidence shows that the respondent Austin Y. Eastman, manager, acted under instructions from his principal in refusing to allow the representative of the relator to inspect the books and papers in his possession relating to the respondent’s business. The relator, therefore, had to choose between the alternatives, of submitting to arbitration or appealing to the courts, and he chose the latter alternative, as he had the right to do. Counsel for respondent suggest, in their brief, that the evidence, taken on the original hearing and contained in the transcript heretofore filed in this court, was not re-offered on the second hearing, and hence, that there is not sufficient evidence now before the court to authorize a decree in favor of the relator. We recognize the technical force of this suggestion, but we think that the case was tried, upon the second hearing, upon the theory that the evidence was in without being re-offered, and as we have it before us in the other transcript we do not think that the interests of justice require that the case should be again remanded in order that such evidence should be again offered.

It may be remarked that, if it appeared that it was in the power of the relator to specify the books, papers, etc., which are in the -possession of the respondent’s agent in this State, we should hesitate to make any order concerning them without such specification, but the relator, who is interested, to the extent of almost one-third, in the business and property of the respondent, has been denied access to the books showing how that business and property are being managed, and he has no means of ascertaining in what particular books, papers, or records, the respondent, through its agent, keeps that information, and, to require him, specially, to designate such books, etc., would be to require an impossibility and to concede the right of the respondent to deny him the information.

It may further be remarked that, if the inspection which the relator was enabled to make, after the institution of this proceeding, had been accorded by the respondent, it would have been tantamount to an admission that the suit was properly brought, and the relator would have been entitled to a judgment as by confession, and we think that he is none the less entitled to a judgment because the inspection was accorded by the receiver and he has been compelled to establish his right thereto over the opposition of the respondent, otherwise, the issue between the relator and the respondent would be left undetermined.

For these reasons, it is ordered, adjudged, and decreed, that the judgment appealed from be annulled, avoided and reversed, and that there now be judgment in favor of the relator, making peremptory the alternative writ of mandamus issued in this case in so far as to command the respondents, the North American Land and Timber Company, Limited, and Austin V. Eastman, its manager, to allow said relator to inspect such books, papers, letters, and copies of letters, relating to the business of said company, as may be in the possession, or under the control, of said manager, such inspection to be made within a reasonable time, and without impeding the business of the company, or subjecting its officers to unnecessary inconveniences. It is further ordered that the respondent corporation pay the costs in both courts.


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 14,141.
    State of Louisiana vs. Thomas J. Slutz.
    Syllabus
    1. A bill of exceptions to the overruling of a motion for a new trial merely reciting the motion, its overruling and the reserving of a bill, is of no practical value.
    2. If a court commits errors in the course of a trial, they must be excepted to at the time, and bills of exception taken. Complaint of the same cannot be set up for the first time in a motion for a new trial.
    3. Where one of three parties charged with conspiracy is on trial separately from the others, the latter are competent witnesses for the State.
    4. An objection that no evidence is receivable under and in support of an indictment by reason of its insufficiency, is disposed of by a judgment of the Supreme Court, overruling a motion in arrest of judgment based on that contention and sustaining the indictment.
    5. It was not necessary that the court in pronouncing sentence against appellant should have used the words “it Is hereby adjudged and decreed that, etc.” Appellant was found guilty by the jury, the judgment, or sentence of the court confirmed it and carried it into execution. The judgment contained the usual recitals and followed the customary form.
    APPEAL from the Eighteenth Judicial District, Parish of Acadia. - — DeBaillon, J.

      Walter Guión, Attorney General, and William Campbell, District Attorney (Lewis Guión, of Counsel), for Plaintiff, Appellee.

      Todd & Davis, Story & Pugh, for Defendant, Appellant.
   Statement of the Case.

The opinion of the court was delivered by

Nicholls, C. J.

One branch of this case was before thé Supreme Court at its last session, and the decision therein will be found reported in the 106th La. Reports, page 182. This court set aside the judgment of the District Court and remanded the cause to be proceeded with according to law. The information charged that defendant did unlawfully, wilfully, and feloniously, conspire with one Frank Abbot and one Kerkendoll to burglarize the dwelling house of one David Meaux.

On the trial, defendant was found guilty and sentenced to pay a fine of five hundred dollars and to be confined in the penitentiary for eighteen months. He has appealed.

The testimony of two witnesses — Abbot and Kerkendoll — was received over the objections of the appellant. The objections urged were:

First — Because the evidence of one set out in the indictment as having been one of the conspirators, cannot he heard against either of the others charged with the conspiracy.

Second — Because no evidence can he adduced under the indictment which only accuses one man, Tom Slutz, with conspiracy, and that no proof of a conspiracy by one person can he received.

Appellant assigned in this court the following errors:

The defendant and appellant now assigns the following errors committed on trial of this case, going to invalidate the verdict and proceedings herein and touching the validity and effect of the so-called judgment and sentence herein.

First Error.

The parties alleged as particeps criminis in a conspiracy were allowed to testify on trial against, this defendant. (See first bill of exceptions in record.)

Second Error.

Because the bills of exception show that this defendant conspired with no one, and that the mere proposal as made by him to two others, named in the indictment, did not constitute and could not be construed as a conspiracy.

Third Error.

Because, under the statements of the court in the bills of exception retained and certified by the judge, facts are patent which prove that there was no conspiracy of two or more persons in this case; and a new trial should have been granted by the lower court; and the question of a new trial not having yet been raised in this (the Supreme) Court, the powers of this court in matters of law touching this motion is now invoked.

Fourth Error.

Neither the minutes of the court below, nor the so-called judgment herein, show that accused ever was sentenced and adjudged any penalty. In fact there was never any judgment and sentence passed upon this accused. The so-called judgment stating only that it is “considered” that Slutz, defendant, should pay the fine, and it is “considered” he should be incarcerated, etc., and that there has been no judgment passed in this matter as the minutes show.

That the court overruled these objections and the evidence of each of said persons offered us witnesses was received, going’ to show proposals to each of said witnesses by accused to break and enter a house, and that said witnesses stated that in order to have accused apprehended, they apparently joined, but not really joined in said design.

The court states that Abbot and Kerkendoll were not on trial and were sworn as witnesses and testified to the propositions made by accused. The declarations of Abbot and Kerkendoll were not offered in evidence; they testified to the matter under investigation. The arrest was made by the sheriff on the public road, at night, the night agreed on for the commission of the offense. Abbot was not then present, but accused and Kerkendoll and Fisher were together, having shotguns with them when arrested on the public road, some four miles .•from Crowley; they were on their way in furtherance of the combination proposed by T. J. Slutz. Slutz alone was arrested.

Opinion. .

We do not find in the record that any proper bills of exception were taken to the ruling of the court denying the application for a new trial, nor to the judge’s charge as made. What his reasons for refusing a new trial were, we do not know. The bill of exception reserved merely recites the motion, the rejection and the fact of the reserving of the bill. We must presume that his action in that matter was correct. If there were errors committed by the judge during the trial, they should have been excepted to at the time, and bills of exception should have been then taken. Complaint of the same cannot be set up for the first time in the motion for a new trial. The judge’s charge is not in the record.

Abbot and Kerkendoll, who were charged jointly with Slutz with having entered into the conspiracy set out in the information, were competent witnesses for the State. Slutz was on trial separately from the others.

Our judgment, which sustained the information as a legal one against appellant’s motion in arrest of judgment, disposes of the objection made that no evidence could be received under and in support of it.

We are not advised in legal manner what the testimony in the case was; the jury found the defendant guilty and we are bound to assume on proper and sufficient evidence. The statement made in appellant’s “assignment of error” as to what Abbot and Kerkendoll testified to, though not properly shown by the record, may be assumed to be correct, but the jury may well have disbelieved that portion of their statement which went to disconnect them as being actual conspirators with Slutz.

On the trial of the case, accused requested the court to charge the jury—

First — That if the evidence shows that the party charged was associated with the persons named in the indictment, but that these other parties were not really in earnest in conspiring to commit the crime alleged to have been the object of the conspiracy, no conviction can be had.

Second — That proof that the accused proposed to commit a crime or sought to organize a conspiracy to commit a crime, the indictment, charging defendant with conspiracy to commit burglary, is not sustained, if there is proof that no other one entered into the plan to commit the crime.

Third — Unless there is a concurrence of sentiment under such a charge as existing among the conspirators, there can be no conviction. The court refused to give them these instructions, and defendant reserved a bill of exceptions in which it is stated that in lieu thereof the judge read Sections Nos. 1388 and 1389 of Wharton on Criminal Law, 9th Edition.

The judge, in the recitals made by him at the foot of the bill, states that the special charges Nos. 1 and 2 were substantially given by the court; that in addition to the Sections 1388 and 1389 from Wharton’s Criminal Law he also read Section 1400 of the same author; that he also charged that in order to establish a conspiracy it was necessary to prove a combination of two or more persons by concerted action to accomplish the criminal purpose alleged in the indictment. “The combination or common design or object may be regarded as proved if the jury believed from the evidence, beyond a reasonable doubt, that the parties charged were actually pursuing in concert the criminal object stated in the indictment, whether acting separately or together by common or different means, provided all were leading to the same unlawful result. That a common design or purpose by two or more persons acting in common is the essence of the charge of conspiracy, and this common design must be proved in order to warrant a conviction either by direct evidence or by the proof of such circumstances as naturally tend to prove it and sufficient in themselves to satisfy the jury of the existence of such common design beyond a reasonable doubt.”

The judge states that the second special charge was not given as requested for the reason that evidence produced did not warrant it.

On several occasions, recently, judges of District Courts have stated in bills of exception complaining of instructions either given, or refused to be given by them to the jury, that they had read to the jury particular sections of some work on criminal law. This practice should not continue. Judges should charge the jury in their own language and recite in the bills precisely what they charged and not refer the court to different works on criminal law for the ascertainment of that fact.

.If the judge gave substantially to the jury the instructions which the accused asked for, he cannot complain. If there was any substantial departure from what was asked for by appellant, he should have made known to us what it was. We cannot find reversible error in a particular charge asked for, if the charge actually given fully covered the case. We think that what counsel requested in their special charge No. 2 to have the court say to the jury was included in what it did say to it.

The last contention of the appellant is that there is no legal judgment and sentence against him. The minute entry of the 2nd of July, opposite the title of the cause, recites: “In the above prosecution the defendant, T. J.- Slutz, having been regularly tried on an information charging him with conspiracy to commit burglary, and the jury empanelled for such trial having returned a verdict of guilty, under Section 5 of Act No. 8 of the Extra Session of the General Assembly of this State for the year 1870, it is considered that said T. J. Slutz be imprisoned- in the State Penitentiary for the space of eighteen months’ term of imprisonment, to begin from the day of his incarceration therein, and that he pay a fine of five hundred dollars; and it is further considered that said defendant pay the costs of this prosecution. Done, read and signed in open court this 2nd day of July, A. D. 1901. O. DeBaillon,

Judge 18th Judicial District Court of Louisiana.
Filed July 2nd, 1901.
R. T. Clark, Clerk.
There being no further business, court adjourned sine die.
C. DeBaillon,
Judge 18th_ Judicial District Court, La.”

Independently of this entry in the minutes, we find in the transcript a copy of the judgment or sentence itself which was placed therein. The contention of appellant, if we understand his counsel, is that the judgment and sentence should have had inserted therein that it was “adjudged and decreed” that the defendant be imprisoned. The accused was found guilty by the verdict of the jury; the judgment or sentence of the court confirmed and carried it into execution. It contained the usual recitals and followed the customary form, or one, at least, very frequently used.

For the reasons assigned, the judgment and sentence appealed from are hereby affirmed.

Rehearing refused.


author: Monroe, J.

text:
    No. 14,016.
    Jean Marie Salles, John M. Salles and Martha Salles vs. Belizaire Jacquet et al.
    Syllabus
    1. Where an attempt is made to take an appeal by motion In open court, but the order granted is not effective by reason of failure to specify the return day, and an order is subsequently made, upon the petition of the appellants, correcting the minute entry previously made so as to supply the omlssiOD, the appellee is entitled to be dealt with as though the appeal had been taken originally by petition ; and, where there is no prayer for citation and no citation is issued the appeal will be dismissed.
    2. In such case, the original order having allowed an appeal, suspensive or devolutive, in the alternative, upon a bond for the amount fixed, and the bond having been furnished, it will be presumed that the appeal, as taken, was intended to be suspensive, and, upon its dismissal, the appellant may be allowed a devolutive appeal if applied for wit’liin the legal delay.
    3. Where the law makes it the duty of the trial judge to fix the return day, an error in that respect is imputable to him, even though the motion and order of appeal are prepared by the counsel for appellant.
    APPEAL from the Nineteenth Judicial District, Parish of St. Martin. — Foster, J.

      Edward Simon, for Plaintiffs, Appellants.

      James E. Mouton, for Defendants, Appellees.
   On Motion to Dismiss.

The opinion of the court was delivered by

Monroe, J.

Defendants and appellees move to dismiss this appeal on grounds which are stated as follows, to-wit:

“That on March 21st, A. D. 1901, the said cause was docketed and judgment rendered and signed by the Judge of the Nineteenth Judicial E¡strict Court of Louisiana, St. Martin Parish.
“That on March 30th, A. D. 1901, said court, in and for St. Martin Parish, Louisiana, was adjourned sine die. That subsequently thereto, to-wit: on the 16th day of April, A. D. 1901, on the written petition and application of plaintiffs in said case, and not in open court, an order was granted and signed by the Hon. District Judge, granting an appeal and fixing a return day therefor to this Honorable court. That no service of said petition and order and no citation of appeal were, at any time” (served) “on the defendants and appellees.”

The record shows that the judgment was rendered and signed in open court March 20th, 1901, and that upon April 16th, following, the plaintiffs presented a petition to the judge a quo in which they alleged “That they were allowed a suspensive appeal, and in the alternative, a devolutive appeal from said judgment on their furnishing bond, for either appeal, in .the sum of $175, returnable according to law, and thus on the 27th of March, 1901. That, by an oversight, no return” (day) “was fixed * * * pursuant to Act 92 of * * * 1900, which provides: ‘That judges of the District Courts throughout the State * * * shall fix the return days in all civil cases appealable to the Supreme Court; provided, the judge shall fix the return day in the order granting the appeal, which shall not be less than fifteen days nor more than sixty days from the date of the order, except by the consent of parties.’ That said order of appeal, less the return day, is carried on the minutes of the Court and is correctible and subject to correction by your Honor to remedy the omission by directing the clerk of the court to correct and amend the said minutes in said case by adding to said appeal entry a return day pursuant to said law, to be fixed by your Honor.

“Wherefore petitioners pray that the clerk of your Honorable court be ordered to correct and amend said minutes in said suit by adding thereto the return day which your Honor may fix, pursuant to said Act No. 92. or such other order as your Honor may think proper, and for general relief.” etc.

Upon this petition the judge made the following order, to-wit: “Considering the agreement, made in open court, that none of the appellants’ rights were to be waived by the signing of the judgment, and considering the fact that the court, failed to fix the return day of. the appeal moved for by appellants, and that the minutes fail to show any return day fixed, it is now ordered that the clerk of the court of St. Martin Parish be and he is hereby ordered to correct the said minutes in said case of J. W. Salles et als. vs. Belizaire Jacquet et als., No. 9460, so as to make the return day of said appeal returnable sixty days from the entry of said appeal to the Supreme Court as the return day fixed by the court.”

The order for the appeal, as originally entered, upon March 27th, does not appear in the transcript, but, from the order, as corrected by that of April 16th, we take it that the motion, had been reduced to writing by the counsel for the appellants and was entered as written. But it has been held that where the law makes it the duty of the judge to fix the return day an error in that respect is imputable to him, even though the order had been prepared by the counsel moving for the appeal. Pearce et als. vs. State, ex rel. District Attorney et als., 49 Ann. 643. There was, however, no return day fixed on the motion made in open court, and the appellees could not, therefore, be called on to answer the appeal by reason of the order made at that time. Some three weeks later the attention of the judge was called to the fact that the order as made out was not effective by reason of the failure to specify the return day, and he directed the clerk to amend the previous order in that particular. Considering, however, that the amendment to the original order was necessary to make it effective, and considering that- it was made upon the petition of the appellees, and not by motion in open court at the session at which the judgment had been rendered, we are of opinion that the appellees were entitled to be dealt with as though the appeal had been taken by petition in the first instance; and, as there was no prayer for citation and none had been issued, that the appeal must be dismissed. But, as the appellants were granted an appeal, suspensive or devolutive, in the alternative, upon their furnishing bond in the sum of $175, and as they furnished bond in the amount named, the presumption is that the appeal, as taken, was intended to be suspensive, and there is no reason why they should not yet be allowed a devolutive appeal if applied for within the legal delays.

For the reasons assigned, it is ordered and adjudged that the'appeal heiein is dismissed at the cost of the appellants.

Rehearing refused.


author: Nioholls, O. J.

text:
      No. 14,215.
    State of Louisiana vs. William Dowdell.
    Syllabus
    1 defendant Indicted under a statute malting it a crime “to shoot at any dwelling house, any person being lawfully therein,” who is shown by the evidence to have lain in wait at night until the occupant of a dwelling house came out upon the gallery and shot at him while there, cannot require the court to charge the jury that, “If he shot at the prosecuting witness with Intent to kill him, but without any intent to shoot at the dwelling house, he could not be guilty of the charge.” “This charge does not negative the fact that the accused, ‘while shooting at the prosecuting witness,’ ‘was not aware that he was ‘at the time shooting at the house.’ ”
    The purpose of the shooting is, under the statute, an immaterial fact.
    APPEAL from the Fifth Judicial District, Parish of Jackson.— Machen, J.

      Walter Ouion, Attorney General, and A. B. Hundley, District Attorney (Lewis Ouion, of Counsel), for Plaintiff, Appellee.

      O. P. Thornhill, for Defendant, Appellant.
   Statement op the Case.

The opinion of the court was delivered by

Nioholls, O. J.

The indictment returned against the defendant in this case charged that he “did willfully, wantonly, feloniously and of his malice aforethought shoot at and into a certain dwelling house, to-wit: the dwelling house of Turner Lawson, where him, the said Turner Lawson, and his family, were at the time residing.”

He was found guilty as charged and sentenced to ten years imprisonment in the penitentiary. He has appealed.

On the trial of the cause defendant’s counsel requested the court to charge the jury, first, that if the proof does not show that the defendant did shoot deliberately at the dwelling house as charged in the indictment, they must acquit him.

Second — If the proof shows that the defendant shot at the prosecuting witness with intent to kill him, but without any intention to shoot at said dwelling house, they cannot find him guilty under the charge, which charge the court refused to give, and counsel reserved a bill of exception.

The District Judge made the following statement at the foot of the bill, which was reserved to this ruling:

The court gave the first part of the charge literally as written by counsel; that is, that the shooting must be deliberately done, but refused to give the second charge, for the reason that the accused was lying in wait in the nighttime in front of the house, and, when the old man living in the house walked out on his front gallery, the accused fired two shots, both of the balls striking the house. The evidence does not show whether the shots were fired to kill the old man or whether they were fired to intimidate the inmates of the house — at least, it was maliciously done. At any rate, the court was of the opinion that the accused had nothing to complain of, because he was indicted and convicted of the lesser offense, instead of the greater offense of lying in wait and shooting at, with intent to murder, and that he was not injured thereby.

The defendant made an application for a new trial for the reason that the verdict was contrary to the law and the evidence, and because the court had refused to give to the jury the special charges which he had been requested to give. The court declined to grant a new trial. In the bill taken to this ruling the court stated that the accused had had a fair and impartial trial and been ably defended by counsel; he reiterated the statements made by him in the bill of exceptions which had been reserved by defendant relative to the special charges which defendant had asked to have given.

Opinion.

The defendant was charged with violation of the 8th Section of Act No. 8 of the Extra Session of 1870, which declares that “whoever shall shoot at any dwelling house, school house, church house or otherwise, any person or persons being lawfully therein, shall on conviction be imprisoned at hard labor not exceeding ten years and fined not exceeding two thousand dollars.”

It will be seen that the statute itself makes neither particular intent, motive, purpose nor knowledge enter as essential factors for the commission of the offense. The indictment, however, in this particular case charges the defendant with having shot at the dwelling house “wilfully, wantonly, feloniously and of his malice aforethought.” The object or purpose of the shooting is not stated. The State did not undertake to say whether the shot was directed primarily against persons and incidentally at the dwelling house, or whether it was directed against the habitation, but left these and the purpose or object of the shooting to be determined by the jury if it was necessary that it should be determined by and through the evidence.

The special charge asked for assumes as one of its premises that the intention of the shooting was illegal and felonious; that the defendant shot at the prosecuting witness with intent to kill him, but follows this up with the statement that he did not “intend” to shoot at the dwelling house, and therefore his act did not fall under the terms of the statute and he could not be convicted under it. He urges, as we understand his position, that defendant’s shot must have been primarily-directed by him at the dwelling house itself; that it is not sufficient that in shooting at a person and not intending or knowing that his shot would be in the line of a dwelling house, the shot would in point of fact take such a direction. The facts of this case do not warrant this argument.

The charge was evidently framed in order to make it fall under the case mentioned in Section III of Wharton’s Criminal Law, 9th Edition, “where the assailant has his intention fixed on a single criminal object, but, while affecting such object, he accidentally and against his will effects, by the instruments used, another criminal object.” But it does not negative the fact that defendant when shooting at Lawson was not aware that he was at the same time while doing so “shooting at the house.”

Defendant must be presumed to have known of the existence of the statute with a violation of which he stands charged, and to have known the consequences of a violation of that statute. When he meditated an attack upon Turner Lawson while standing upon -the gallery of his own dwelling house, he must have contemplated the possibility or probability of his illegal act being attended with peril to others or to property.

He must be taken to have intended the natural and probable consequences of what he did and to have risked the legal consequences to himself.

It has been held generally that any formed design of doing mischief is called malicious, whether the mischief be intended to- fall upon a particular person or upon any person who may be within its range.

Malice is held to denote not only malevolence to a particular individual, but the act of a generally wicked, depraved and malignant spirit, of a heart regardless of social duty and deliberately bent on mischief, is malicious.

The proof or presumption of malice .becomes more and more clear as the probability of evil consequences resulting from a particular act must have been known by the person doing the act.

Wharton, in Section 120 of his work, lays down the principle that, where an intent exists to do wrong and an unintended wrong ensues as a natural and probable consequence, the unintended wrong derives its character from the general evil intent. A general malevolent purpose to break the law, for instance, or to inflict injury, irrespective of any particular malice, gives color to a particular wrongful act committed in execution of the general malevolent purpose. In other words, when there is a general intent to do evil, of which evil the wrong actually done may be looked upon as a probable incident, then the party having such general intent is to be regarded as having intended the particular wrong. A man using a deadly weapon in a crowd must be regarded as intending to kill all within range of the weapon, whether as a primary object or as incidental to such prime object. And a general intent to do evil such as to cover all the natural probable consequences of the act may be inferred from the circumstances of the act.

Recklessly shooting into a crowd is an assault, and an assault on several indiscriminately is an assault on each individual. So it is no defense to an individual for shooting into a house that the object was to hurt some one who, it turned out, was not actually in the house. Wharton Grim. Law, Sec. 608 (9th Ed.).

The Legislature has not informed us in Act No. 8 of 1870 what the particular mischief was which it was seeking to prevent. It is enough for us to know that the fact of shooting at a dwelling house in which persons were residing was deemed so perilous or injurious as to justify it in making the doing of that act per se a crime, without a reference to intent, motive, purpose or knowledge. A person doing so perilous an act as shooting is bound at his peril not to shoot “at” a dwelling house, a person or persons being lawfully therein.

The function of imposing indictability for pernicious acts, irrespective of intent or purpose in doing the act, is one which has been frequently exercised by the Legislature, from a necessity of which it is the judge. It may be deemed indispensable to the public welfare or good that certain acts should be absolutely and even arbitrarily prohibited and that the State should be relieved from the necessity of proving motive, purpose or intent. (See Wharton, Sec. 88.)

Parties may be criminally responsible for unforeseen consequences, although against their wish, if they ensue from an act which is itself unlawful and in its original nature wrong or mischievous. (Wharton, Sec. 87.) Particular consequences of an illegal act whose natural probable results the law seeks to prevent by making the act per se criminal, do not stand excused because they may in fact have been unintended.

Where the statute makes the doing of a particular act indictable, irrespective of intent or purpose, these particular matters do not entei as factors for the defense, and evidence and instructions in respect to them are not pertinent.

The question before us is not whether under an indictment for shooting at another, or shooting at another with a certain specific intent, the jury would be authorized to return a verdict of shooting at a house, persons being lawfully therein, if the evidence showed that state of facts, but whether under an indictment brought directly upon a special statute making the act of shooting at a dwelling house, persons being lawfully therein, an indictable offense without reference to the intent with which the shooting was done, the defendant had the legal right to claim that the existence in him of a particular intent in shooting at the house withdrew his act from falling under the terms of the statute, or the failure on his part to have done the act with a particular intent relieved him from criminal responsibility.

We do think the case was not one calling for investigation of the defendant’s intent, and that the failure of the court to give the requested charge furnishes no ground for reversal.

In the case at bar we ascertain under the judge’s statement that the shooting was directed at Lawson, while standing on the gallery of his own dwelling, his family being therein. The shooting “at the house” and the “shooting at Lawson” were concurrent, simultaneous, illegal cats. Each, separately, was subject to indictment.

It cannot be claimed that legal responsibility for “shooting at the house” was lost because in “ so shooting” the intent was to shoot at a person in the house.

The District Attorney elected to make the shooting at the house (the lesser crime) the object of the prosecution.

The judgment is affirmed.


text:
    No. 13,797.
    Mayor and Board of Trustees of the Town of New Iberia vs. New Iberia and Bayou Carlin Drainage District, and Parish of Iberia vs. New Iberia and Bayou Carlin Drainage District.— (Consolidated.)
    Syllabus.
    1. Act No. 33 of 1900, being the latest expression of legislative will upon the subject of drainage within the corporate limits of the town of New Iberia, must be held to control prior legislation, and to vest in the Mayor and Tru*tees of the town exclusive authority upon that subject.
    2. The title of Act 114 of 1900 expresses but one object, but the last section of the act is broader than the title, and, therefore, unconstitutional, but in so far, only, as it undertakes to repeal Act No. 5 of 1899, as an entirety, and does not confine the repeal to so much of said act as is contrary to, or Inconsistent with, its own provisions.
    3. Article 281 of the Constitution, whilst contemplating that drainage districts shall be established as distinct entities, Imposes no restrictions upon the General Assembly in the matter of the selection of the officers by whom the affairs of such districts are to be administered, and the courts can Impose none.
    APPEAL from the Nineteenth Judicial District^ Parish of Iberia.— Foster, J.

      Andrew J. Cammach, for Mayor and Board of Trustees of the Town of New Iberia, Plaintiffs, Appellants.

      Anthony N. Muller, District Attorney, for Parish of Iberia, Plaintiff, Appellant.

      Broussard, JDulany & Dunbar, for Defendant, Appellee.
   The opinion of the court was delivered by

Monroe, J.

The plaintiffs in these, consolidated, cases, sued to restrain the Board of Commissioners of the Bayou Carlin Drainage District from holding an election, which had been ordered by them for October 3rd, 1900, to take the sense of the qualified voters of said district upon the question of imposing a special tax for drainage purposes, the Mayor and Board of Trustees of the town of New Iberia claiming that the power is vested in them to order such elections where the tax is to be imposed upon property within the corporate limits of the town, and the Police Jury claiming that such power is vested in them with respect to taxes to be imposed in the parish, generally. Preliminary injunctions were issued and remained pending until after the date fixed for the election enjoined, so that, although the judgment of the District Court, when rendered, was in favor of the defendants, the immediate purpose of the plaintiffs was accomplished. Whether the particular election in question was held, or was. not held, upon the day appointed, was, however, a matter of small consequence in comparison to that which remains to be settled, i. e.; in which of the litigants is the authority to order elections, contract debt and issue bonds, for drainage purposes, in the Bayou Carlin Drainage District, vested?

I.

The town of New Iberia was incorporated by special Act No. 16 of 1839, and the Mayor and trustees were authorized to pass ' such ordinances, not inconsistent with the laws of the State and of the United States, as they might deem proper, in relation, among other things, “to the streets, alleys, highways, etc., therein, and draining, filling up, keeping in order and improving tne same,” etc. It wat also provided, by the same act, that the Police Jury should be authorized to levy taxes upon property in the town “for the purpose of building or repairing the court house, jail, bridge, ferry, or other property” of the parish. But, by Act No. 107, of 1868, the provision last above mentioned was repealed, and it was provided “That, from and after the passage of this act, the Police Jury shall no longer exercise any jurisdiction within the limits of the said town of New Iberia, or impose any tax on persons or property therein, except to impose such special tax as may be required to make or repair the courthouse or jail of said parish.” And this provision, of the Act of 1868, excluding the rest of the section of which it formed a part, was included among other amendments to the charter which were adopted by the people of the town in December, 1880, agreeably to the provisions of Act No. 110 of that year, the provisions conferring upon the Mayor and trustees the power to pass ordinances upon the subject of drainage remaining unchanged.

In 1888, the Legislature passed a general statute entitled: “An act authorizing and empowering the Police Juries of the State to divide their respective parishes into drainage districts, providing for the appointment of commissioners to superintend the said districts, and their duties; for the raising of funds by special tax on the lands in said districts, and the manner in which said tax shall be collected.”

By this act, the Police Juries throughout the State were authorized to divide their respective parishes into drainage districts and to appoint for each district three commissioners, who were to hold office during the pleasure of the Police Jury, and who, by the terms of the act, were authorized to submit to the land owners of the district for which they were appointed, at elections to be ordered by them, the question of taxing their property, up to 15 mills, for drainage purposes.

In 1890 (by Act 83) the Act of 1888 was so amended as to withdraw from the commissioners the power to order elections and to vest it in the Police Juries.

It is sufficient for present purposes to say that the Constitution of 1898, of itself, operated no change in the relations which had been established by law between the parish and town authorities. Shortly after its adoption, however, the General Assembly passed Act No. 130, of 1898, being an act amending the original charter of the town of New Iberia and the different amendments thereto, the general tone and effect of which is, to emphasize the exclusion of the Police Jury from the affairs of the town. Act 5, of the called session of 1899, purports to have been adopted to carry into effect Article 281 of the Constitution, but makes no provision for the organization of Boards, or other governing bodies, for drainage districts, and in no manner affects the question here involved. Act No. 12, of 1900, was passed to further carry into effect Article 281 of the Constitution, and authorizes the Police Juries to divide their parishes into drainage districts, as contemplated by that article. It contains, among others, the following provisions, to-wit:

“8ec. 10. * * * That, whenever the interest of two or more contiguous drainage districts, or if such drainage district and any municipal corporation are identical, or if they have, to any extent, a community of interests in the cleaning and opening of natural drains, or new works of whatever nature they may be, said drainage districts and municipal corporations may undertake and complete such works as a joint enterprise, determining in advance the proportion which each drainage district and municipal corporation shall contribute to said work; and provided, that, if the work so undertaken shall be paid for by a special tax levied under Article 281 of the Constitution, the said drain shall belong to, and the title shall vest in, the drainage district and municipality contributing said tax, in proportion to the said contributions. Provided, the provisions of this section do not prevent the Police Juries of the various parishes including in a drainage district incorporated towns as a part thereof.”

The act further authorizes the Police Juries to appoint, for each drainage district established under its authority, three out of five, commissioners, the other two to be appointed by the Governor, and the five so appointed, to constitute a Board for the governance of such district, with all the powers necessary for that purpose, including the power to order elections, contract debt and issue bonds, for drainage purposes. Special provision is, however, made, to the effect that drainage districts already organized, under pre-existing laws, shall be left the option of remaining as they are or of reorganizing under the provisions of the act. It is unnecessary to inquire whether this act operated the repeal of the special legislation whereby the Mayor and trustees of New Iberia were vested with authority, to the exclusion of the Police Jury, to administer the affairs of that town, for, six days after its approval, the Governor approved the Act No. 33, of the same session, which contains the following, among other, specific grants of power, to said town authorities, upon the subject under consideration; to-wit:

“Sec. 1. * * * Eighth. The Mayor and Board of Trustees of the town of New Iberia may sub-divide the city into drainage districts and the said Mayor and Board of Trustees shall be, ex-officio, the drainage commissioners within these respective districts, and which districts shall have all the rights and privileges ordinarily belonging to drainage districts under the general law.”

It only remains to be stated that this provision is in no manner weakened, but, on the contrary, is rather strengthened, by Act 114 of 1900, and being a later, and a special, statute, necessarily, controls, in case of any conflict between it and the earlier and more general legislation to which we have referred.

II.

We have seen that, by the Act of 1888 (No. 10Y), the Police Juries were authorized 'to divide their parishes into drainage districts, and to appoint a Board, consisting of three commissioners, for each district, and that the Boards thus organized were vested with the powers necessary for the administration of the affairs of the districts to which they were assigned, including the power to order the elections contemplated by the act. We have also seen that, in 1890 (by Act No. 83), the General Assembly withdrew from the commissioners the power to order the elections and vested it in the Police Juries. And matters were in that condition when the present Constitution wa3 adopted, Article 281 of which reads as follows (omitting certain language which is irrelevant to the present issue), to-wit:

“Municipal corporations, parishes and drainage districts * * * when authorized to do so by a vote of the majority in number and amount of the property tax-payers, qualified as electors * * * voting at an election held for that purpose * * * xnay incur debt and issue negotiable bonds therefor to the extent of one-tenth of the assessed valuation of the property within, said municipal corporation, parish or drainage district, * * * and may be authorized by the property tax-payers voting at such election to levy and assess special taxes upon property subject to taxation in the parish, drainage district, or corporation; provided, said taxes, so imposed, do not exceed five mills * * * in any one year, nor run for a greater number of years than the number named in the proposition submitted to the taxpayers. No bonds shall be issued for any other purpose than that stated in the submission of the proposition to the tax-payers, * * * nor for a greater amount than therein mentioned; nor shall such bonds be issued for any other purpose than for paving * * * drainage * * * and other works of public improvement, the title to which shall vest in the municipal corporation, parish, or drainage district; nor shall such bonds run for a longer period than forty years * * * or be sold by the municipal corporation, parish, or drainage district, issuing the same, for less than par. The municipal corporation, parish, or drainage district, issuing such bonds shall provide for the payment of interest, * * * provided, that the total issue of bonds by any municipal corporation, parish, or drainage district, for all purposes, shall never exceed ten per cent, of the assessed value of the property in such municipality, parish, or drainage district. Provided, that the drainage districts availing themselves of this ordinance shall be limited to the rate of taxation herein fixed, and such districts shall be prohibited from levying contributions, under the existing laws; and provided, further, that nothing herein contained shall prevent drainage districts from being established under the provisions of existing laws.”

The purpose of this article is, unquestionably, to authorize the establishment of districts, autonomous for drainage purposes, and distinct from the parishes of which, for other purposes, they may form part. It will be observed, however, that the article does not undertake to establish such districts, or to prescribe by whom drainage districts, in general, or in particular, shall be established, or governed, and those matters, therefore, fall within the control of the General Assembly, and the legislation necessary to carry the' article of the Constitution into effect was accordingly adopted. The first act passed for that purpose, Act No. 5, of 1899, failed to make any particular provision upon the subject now under consideration. Act No. 12, of 1900, authorized the Police Juries to establish drainage districts, and, with the Governor, to appoint commissioners to manage their affairs, conferring upon such commissioners the power, among others, to order the elections necessary to take the sense of the property tax-payers as to the levying of the special tax authorized by the’Constitution, and the power to contract debt and issue bonds for the purposes contemplated by the act.

Fourteen days later, Act No. 114, of the same session, was approved. It is entitled “An Act to authorize any municipal corporations, parishes, or drainage districts, the City of New Orleans excepted, to incur debt, to issue negotiable bonds, therefor, to levy special taxes, and to provide the manner in which special elections shall be held in such parish, municipality, or drainage district of this State for the purpose of incurring debt, issuing negotiable bonds therefor; and levying special taxes for paving and improving streets, roads and alleys, purchasing or constructing a system of waterworks, sewerage, drainage, light, public parks and buildings, bridges, and other works of public improvement, the title to which shall vest in the municipality, parish, or drainage district, and to carry into effect Article 281 of the Constitution of 1898, and to repeal all laws contrary to and in conflict therewith.”

By the terms of this act, the power to order the elections, contract the debt and issue the bonds necessary for the purposes contemplated by Article 281 of the Constitution is specifically vested in the Police Juries, and there is a repealing clause which reads: “That all laws, or parts of laws contrary to, or in conflict with, the provisions of this act, be and the. same are hereby repealed, especially Act No. 5 of the Extra Session of 1899, and that this act take effect from and after its passage.”

This act, being of later date than the Act No. 12, must control in case of conflict, unless some sufficient reason to the contrary be shown.

It is said to be unconstitutional, because its object is not expressed in its title, and because it is in derogation of Article 281 of the Constitution, in that, it attempts to divest the drainage districts of powers vested in them by that article.

In support of the first proposition, it is argued that the title does not refer to the repeal of any particular statute, but only to laws contrary to, and in conflict with, the provisions of the act, whilst the repealing clause especially mentions, and undertakes to repeal, Act No. 5 of 1899. The obvious answer to this is, that, confining the operation of the act within the limits of its title, it repeals only so much, of Act No. 5, of 1899, as is contrary to, or in conflict with, its provisions. This, however, strikes with nullity only so much of the act as is broader than the title, and does not effect the rest (State vs. Ferguson, 104 La. 249; State vs. Goff, not yet reported), nor does it effect the questions here presented, since the Act No. 5, of 1899, contains no provisions relating to the organization of drainage districts or the manner of their government.

The argument in support of the other proposition is, that the Constitution contemplates that the drainage districts shall be distinct entities, and that the effect of the act is to defeat that purpose by practically merging them in the parishes. The error here lies in the failure to distinguish between the drainage districts and the governing bodies provided for the administration of their affairs. Granted, that the drainage district is to have an autonomy distinct from that of the parish, nevertheless, the power to determine by whom its affairs are to be administered is left entirely within the discretion of the General Assembly. And, if the Convention which framed the Constitution did not deem it wise to control that discretion, certainly, the courts will not undertake to do so.

The situation resulting from the passage of the Act No. 114 is very much the same as that which was brought about by the adoption of Act 83 of 1890, and the idea suggested in both instances is, that there were some members of the General Assembly who approved of the one method of governing the drainage districts and some who approved of the other method, and that those who approved of governing-through the Police Juries constituted the majority upon the occasions of the latest action. And, as the matter of determining the method is left, by the Constitution, to the General Assembly, the action of that department of the government is beyond the control of the judiciary.

For these reasons, it is ordered, adjudged, and decreed, that the judgment appealed from be annulled, avoided and reversed, and it is further ordered, adjudged and decreed that there, now, be judgment, in favor of the Mayor and Board of Trustees of the town of New Iberia and the Police Jury of the Parish of Iberia and against the New Iberia and Bayou Carlin Drainage District, decreeing that the said Bayou Carlin Drainage District has no jurisdiction over the territory situated within the corporate limits of the town of New Iberia for the purpose of ordering elections for the imposition of taxes for drainage purposes; and that it has no jurisdiction in the matter of ordering elections in the Parish of Iberia for the imposition of taxes, or in the matter of contracting debt, or issuing bonds; for drainage purposes, in said parish. It is further ordered, that the defendant pay the costs.

Breaux, J., having a property interest in the question at issue, recuses himself.

Nicholls, C. J., dissents, reserving right to assign reasons.

Rehearing refused.


author: Blanchard, J.

text:
    No. 14,084.
    State of Louisiana vs. John Love.
    Syllabus.
    1. It may not be legally necessary, in the proces verbal of a jury drawing, lo recite the names of those stricken from the jury list because of previous jury service, or because of death, removal from the parish, exemption from jury duty, or disqualification as jurors since their names were entered thereon, but it is the better and safer practice to do so.
    2. Where, from the proces verbal, it seems to appear that the jury commission, in drawing a regular venire, failed to supplement the list and the ballots in the box with the names of other persons competent as jurors equal in number to those stricken from the list and whose names were taken out of the box, thus leaving a depleted box from which they drew the jury, the array of which is challenged, a motion to quash will prevail.
    3. The drawing of a jury from a box containing less than three hundred names, is one of those irregularities so gross, so at variance with the strict mandate of the law, that it amounts to a wrong per se on those affected by it, and Is an Injury so apparent, and, to those who have reason to complain of it and do complain of it, so great, that they need, In the way of showing injury, do nothing more than allege injury.
    APPEAL from the Ninth Judicial District, Parish of East Carroll —Ransdell, J.

      Walter Guión, Attorney General, and David M. Evans, Jr., District. Attorney (Lewis Guión, of Counsel), for Plaintiff, Appellee.

      J. M. Kennedy, for Defendant, Appellant.
   The opinion of the court was delivered by

Blanchard, J.

The defendant was prosecuted, through bill of information, for the crime of robbery, convicted by verdict of a jury, and sentenced to hard labor for ten years.

He appeals.

On the opening day of court he filed a motion to quash and set aside the venire of jurors drawn to serve at that term.

The ground of tl. s motion was that the jury commission, before commencing to draw the jury, did not supplement the names in the jury box and on the jury list with the same number of names of persons competent as jurors as had been drawn from the box at the previous jury drawing, and that, in consequence, there were not three hundred names in the box when the jury was drawn.

He alleged, in the motion, that he was entitled to be tried by a jury drawn from full 300 names of competent jurors placed in the general venire box, that the drawing of the jury from a box containing less than 300 names was a legal fraud upon his rights, and that the same had operated to his great injury.

The trial of this motion was gone into, with the result that the same was overruled and a bill of exceptions reserved.

This bill was formally presented and signed when the case of defendant came up for trial before a jury drawn from the venire which had been objected to and the array of which had been challenged. The motion to quash and the evidence adduced on the trial thereof were made part of the bill.

Ruling — The jury commission recite in their proces verbal that they struck from the general venire list the names of all persons who had served as grand and petit jurors since the preceding drawing of the general venire, and also the names of those on the list who were known to have died, removed from the parish, become exempt from jury duty, or disqualified as jurors since their names were entered thereon. They do not give the names of those who were stricken from the list because of previous service, but they do give the names, eight in number, of those stricken from it because of having died, removed from the parish, or become exempt or disqualified since the last- drawing.

It was, perhaps, not legally necessary to recite the names of any of those stricken from the list, but we throw out the suggestion that it is the better and safer practice to do so.

Continuing, the proces verbal recites that the names having been stricken from the list, the slips or ballots containing the names as stricken off were removed from the general venire box.

This, as far as it goes, is a sufficiently substantial compliance with the requirements of the jury act (No. 135 of 1898).

But the commission seems to have failed to supplement the list, and the ballots in the box, with the names of other persons competent as jurors equal in number to those stricken from the list and taken out of the box — thus leaving a depleted box from which they drew the jury challenged.

It is true the proces verbal recites:—

And we, the said commission, then and there, in the presence of said witnesses, supplemented the original list and the ballots in the box with the names of the same number of good and competent men from the qualified jurors of the parish as have been taken from the box and erased from the list, so as to keep the names of the general venire box and on the jury list at the number of three hundred—

Had they stopped there their statement could be accepted as one of fact, but from what follows it is transformed from one of fact to a mere conclusion of the commission, and an erroneous conclusion at that. Thus (continuing from where left off above) :—

which supplemental names so selected are as follows, to-wit:— (then follow the names of eight persons)
and which said names were written by said clerk on said jury list under the supervision of the said jury commission in the presence of said witnesses, and each name was likewise written by said clerk on a separate slip of paper, together with the number of ward or place of residence of said person and such slips deposited in the general venire box.

The concluding part of this statement, purporting to give the names of those added to the list and placed in the box, to make up for those taken off and out, modifies and controls the preceding part, and shows that only eight names were added to the list and placed in the box.

With only this number of new names added, it is ascertained from the evidence that the box from which the jury was drawn contained only 220 names, instead of 300, as the law directs.

If there had really been returned to the list and the box the full complement of new names, equalling the number taken therefrom, and the error had been in the proces’ verbal not so stating, or in .the obscurity of its statements, the State, on the trial of the motion to quash, could easily have shown the true facts, or caused the correction of the proces verbal to be made, or its obscurity explained and cleared up by evidence.

But nothing of this kind was done and the unavoidable conclusion is that, judged by the proces verbal, only eight new names were added instead of eighty-eight.

To permit a jury commission to draw a regular jury for a term of court from less than the number prescribed by law is, virtually, to permit the commission, itself, to prescribe the number, and thus, practically, to nullify the legal requirement of three hundred names.

If a commission may legally draw a petit jury from 220 names in the box, why not with equal propriety draw one from 100 names, or any less number?

To sanction this would be to invest the commission with power to select the petit jury, and thus do away altogether with the drawing by lot or chance.

As well said by the learned counsel, who, appointed by the trial court to defend a penniless negro, has discharged the duty with consummate ability:—

Such a power over the lives and liberty of their fellow citizens could hardly be lodged with safety in the hands of any body of citizens, however honest or upright they might be.

The drawing of the jury in question from only 220 names in the box is one of those irregularities so gross, so at variance with the strict mandate of the law, that it amounts to a wrong per se on those affected by it, and is an injury so apparent, and, to those who, like the accused, have reason to complain of it, and do complain of it, so great, that they need, in the way of showing injury, do nothing more than allege injury. See State vs. Rector, 35 La. Ann. 1098; State vs. Harris, 34 La. Ann. 118; State vs. Simmons, 43 La. Ann. 991; State vs. Saintes, 46 La. Ann. 547; State vs. Kellogg, 104 La. 585.

It is ordered, adjudged and decreed that the verdict, sentence and judgment appealed from be set aside, reversed and annulled, and that this cause be remanded to the court a qua to be proceeded with according to law.