text:
    No. 3613.
    The State of Louisiana ex rel. N. A. Robinson v. Charles F. Dranguet.
    In a proceeding under the intrusion act to test tlie right of any person to an office, the State is a necessary party to the suit, and if it bo shown that the incumbent is an intruder, he< will be ejected without reference to the rights of the claimant to the office.
    The failure of a person who has been elected or appointed to an office to take the oath prescribed by the eligibility act of tlie twenty-sixth of August, 1CG8, within the time prescribed, does not ipso facto destitute him of the office.
    The Legislature has no power to increase or diminish the term of office fixed by tlie Constitution, nor has tlie Legislature any power to fix conditions or impose penalties on a person holding an office which are not authorized by the Constitution.
    The appointment of any person by the Governor to an office not vacant is absolutely null.
    APPEAL from the Ninth Judicial District Court, parish of Natchitoches.

      Or shorn, J. Charles A. Bullara, District Attorney pro tempore, and lí. M. Kearney and J. M.' B. Tucker, for relator, appellee.

      Semmes <£ Mott, for.de.eudant and appellant.
   Ludeling, C. J.

This is a proceeding under the intrusion act. Revised Statutes, p. 271, sec. 1150.

The petition of the relator represents that N. A. Rohinson was elected district attorney lor the Ninth Judicial District in April, 1868; that he qualified and was duly commissioned, and that he discharged the duties of said office until about the first of August, 1871, when the detendant intruded into said office, and he unlawfully performs the functions of said office under color of an appointment and commission from Henry C. Warmotli, Governor of the State of Louisiana. The evidence sustains the foregoing statement of facts

The only defenses made in this court are:

First — That Ihe plaintiff only took the oath of office prescribed by article 100 of the Constitution, and tailed to take the oath prescribed by the eligibility act of the twenty-sixth of August, 1868, p. 46; and that under the fifth section of that act the office became vacant within thirty days after the promulgation of the act.

Second — That the relator must recover on the strength of Ms own title.

First — In the case of State ex rel. R. C. Downes v. E. B. Towne, 21 An. (which like this was a contest for an office created by the Constitution), this court said: “ Failure to take the oath testing his eligibility and to file it in the office of the Secretary of State in the time limited in act No. 39 did not ipso facto destitute him of his office. It was not in the power of the Legislature to legislate him out of office, or to diminish or increase his term of office as fixed in the Constitution.” The precise question was decided against the pretensions of the deiendant in that case, and time and reflection have only strengthened our conviction then expressed. 21 An. 492.

Second — The State is a party plaintiff to the proceedings, and as to the State, it is not essential to show that N. A. Robinson was entitled to the office; the defendant could be ejected from office, if an intruder, whether the State showed that Robinson had a valid title to the office or not.

It is therefore ordered and adjudged that the judgment of the district court be affirmed, with costs of appeal.


source: Caselaw Access Project

author: Howe, J.

license: Public Domain

text:
    No. 2350.
    Martin Betzer v. John Coleman and others.
    An account closed and acknowledged is only prescribed by ten years.
    One witness is sufficient to prove an account aggregating an amount above five hundred dollars, if no one item of the account exceeds that sum.
    APPEAL from the Seventh District Court, parish of Orleans.

      Gollens, J. Brauglm & Ogden, for plaintiff and appellee.

      Sor nor <& Benedict, for deiendants and appellants.
   Howe, J.

Dennis Cronan has appealed from a judgment rendered against him as a partner of John Coleman & Co. for $681 30, for a bill of work done in blacksmithing, etc. He makes two points:

First — The prescription of three years as to an open account. We do nob think the prescription applicable, inasmuch as the account seems to have been closed by rendition and acknowledgment in 1862, and subject only to the prescription of ten years. James v. Fellowes, 20 An. 119. But if this is not so, the evidence shows an interruption of the prescription of even three years by repeated acknowledgments by Cronan. His statement that he never promised to pay it is irrelevant. It is the acknowledgment which interrupts prescription, Rev. C. C. 3520; and he certainly acknowledged the claim repeatedly up to the beginning of the suit, in such way that prescription was never acquired, each time putting off the plaintiff with the promise that it should be settled when he “got out of court,” that is, when the affairs of the partnership should be liquidated.

Second — That the account, being over $500, was not proved by two witnesses, or by one witness with corroborating circumstances. No item of the account exceeds seventy-five dollars, and it may be doubted whether the rule invoked has any application. 19 An. 71. But if it have, the correctness of the account is amply corroborated by the testimony of Cronan himself.

The appellee has asked for damages.

It is therefore ordered that the judgment appealed from be affirmed, with thirty dollars damages and costs.


author: Ludeling, C. J.

text:
    No. 3511.
    State of Louisiana ex rel. J. H. Rills v. Bartholomew L. Lynch—C. O. Lauve, Intervenor.
    The act Iso. 120 of 1868, which confers the power on the police juries of the different parishes to appoint a district attorney pro témpora within thirty days, does not prohibit them from making the appointment after tho thirty days have expired. An ai>pointment of a district attorney pro tempore by the police jury after the expiration of* thirty days is valid, provided the power of making such appointment, conferred upon tlio parish judge in the act, has not been exercised before it is made.
    In case tho police jury has made the appointment after the expiration of thirty clays, butbofore the appointment by the parish judge, then the appointee has an indefeasible right to the office, and the person appointed afterward by the parish, judge is an intruder into tho office. ,
    A district attorney who fails or refuses to bring a suit to test tho right to an office under the intrusion act, may be compelled by mandamus to bring such suit. 21 An. 655
    APPEAL from the Fifth Judicial District Court-, parish of Iberville.

      Posey, J. Marie A. Estovan, District Attorney, and Barrow & Pope, for relators.

      B. L. Lynch, defendant, in proper person.
   Ludeling, C. J.

This is a suit under the intrusion act to oust the defendant, B. L. Lynch, from the office of district attorney pro temporefor the parish of Iberville.

A great many legal questions have been discussed by counsel which we do not feel called upon to decide in this cause. The evidence shows that the relator, J. H. Kills, was appointed district attorney protempore for the parish of Iberville by the police jury of said parish on the first Monday of January, 1869; that said Rills qualified and entered upon the discharge of the duties of tho office, and he continued to exercise the functions of said office until the eighth of June, 1870, when the defendant usurped the said office, under the pretense of an appointment made by the parish judge and approved by the-police jury.

It is contended that the police jury which appointed Rills had not the right to make the appointment at the time it was made, because-act No. 120 of tlie General Assembly of 1808, which conferred the right to make such appointments on the police juries, limits the period within which they shall make the appointments to thirty days alter the promulgation of the act. The language of the statute is, that within thirty days after the date of the promulgation of this act there shall be appointed a district attorney pro tempore in each parish of the State, except the parish of Orleans, by the police jury of the parish, and in the event of failure of the police jury to make such appointment within the time aforesaid, the parish judge of the parish shall make such appointment.”

The statute does not prohibit the police juries from making the appointments after the thirty days, but in that event the statute confers the same power on the parish judges. The purpose of the law was to guard against the possibility of a vacancy in the office, and after the expiration of the thirty days either the police jury or the parish judge could have appointed a district attorney pro tempore, and the party which first exercised the power exhausted it. 3 An. 195, Wilson v. State Bank; 14 An. 207, Barrow v. Rabichau; Cooley’s Constitutional Limitations, 77 et seq.

The appointment of J. H. Rills by the police jury on the fifth January, 1869, is valid. The subsequent police jury had not the power to remove him, 21 An., Downs v. Towne, 490, and the appointment by the jndgo was made in erroi’.

The defendant objects that this suit has not been brought by the district attorney, inasmuch as he refused to bring the suit until ho was compelled by a writ of mandamus issued by the district judge against him ; that having acted under duress the act of bringing this suit can not be said to be his act.

A sufficient answer to this is, that no appeal has been taken from the judgment making the mandamus peremptory, and it is res judicata; and that this suit is, in fact, brought by the district attorney. But this court decided in Hays v. Thompson that a district attorney could be made to bring such a suit by a writ of mandamus. 21 An. 655.

It was further decided in that case that no suit could be brought by a private individual under the intrusion act, but that such suits must be instituted by the Attorney General or district attorneys. It follows, therefore, that the intervention of C. 0. Lauve was unauthorized by law.

It is therefore ordered and adjudged that the judgment of the district court be avoided and reversed, and that there be judgment in favor of J. H. Rills, recognizing him as district attorney pro tempore for the parish of Iberville, the defendant and intervenor paying costs of both courts.


author: Howell, J.

text:
    No. 2408.
    H. Bezou, Commissioner, v. Pike, Lapeyre & Brother.
    In this case the defendants discounted the note of the president of tlie Citizens’ Mutual Insurance Company and took in pledge as collateral security the stock of the Citizens’ Bank, owned hy the company. The proceeds of the note went to the benefit of the insurance company to the knowledge and with the consent of the board of directors.
    Held — That, waiving the question as to whether the president of the insurance company had the right to pledge the stock owned by the company, yet the knowledge of, and the acquiescence in, the pledge and the receipt of the proceeds by the bodrd of directors, amounted to a ratification of his acts, and the company was thereby bound.
    APPEAL from tilo Fourth District Court, parish of Orleans.

      Théard, J. G. Schmidt, for plaintiff and appellant.

      Kayes & Hew, for defendants and appellees
   Howell, J.

The plaintiff, as commissioner appointed to liquidate the affairs' of the Citizens’ Mutual Insurance Company, claims of defendants the sum of eighteen thousand dollars, the value of one hundred sitares of the stock of the Citizens’ Bank of Louisiana and the dividends accrued thereon, which he avers they illegally detain under pretense that it has been pledged to them by Omer Gaillard, late president of said company, which, even if true, does not authorize defendants to retain the said stock because the president had not the power to pledge it.

The defendants answer that, according to the usages of commerce, they discounted a note of the Citizens’ Mutual Insurance Company through its president, 0. Gaillard, for $10,000, upon a pledge of said stock, which note and pledge wore renewed several times and increased to $15,000, and upon final maturity the pledge was sold for $425 less than the debt, which sum they claim in reconvention. They allege that the discount was made for the benefit of the insurance company and was used hy it in the regular course of its business, and that said discounts and pledges were authorized and ratified by the board of directors of the company; and further that the company did business with them as bankers; that the proceeds of the discounts were placed ■ to its credit and paid on the checks of the president and secretary.

Judgment was rendered as prayed for hy defendants and the plaintiff appealed.

In the language of his counsel’s brief: The issues made in this cause on the merits present simply the question, whether the president of the insurance company was authorized to bind the company hy his note and pledge the bank stock belonging to it for its payment V’

Concede that 'there was no resolution of the hoard of directors or provision in the by-laws of the company expressly authorizing the president to make the note and pledge, it is shown that they were made by the president and the proceeds drawn out of defendants’ bank upon the checks of the president and secretary and used for the benefit of the company to the knowledge of the directors, who, by their acquiescence, ratified the acts of the president; and made them the acts of the company or corporation, which is vested witli all the powers necessary for conducting its business and can act only through its officers and directors. The fourth article of the charter gives the directors “ full power to do and perform all acts and things not herein provided for which may be necessary to carry into effect the object and purposes oí the company.”

The object of the company was to make insurance on various kinds of property against loss or damage by fire and water. By the sixth article of the charter the board of directors were empowered to invest the profits of the company or a portion of them in the purchase of bonds or stocks issued or created by or under the laws of the United States or of this State or the ordinances of the city, and make loans of said profits on pledge of any of said bonds or stocks. If they could thus invest their funds in the purchase of stocks or in loans on pledge thereof, they certainly possessed the power of converting such purchases or loans into cash by sale or pledge when money was needed to pay risks. Otherwise the object of the incorporation would fail. Making insurance involves necessarily the obligation to pay loss, and the means or funds of the company must be used for such payment and can not properly be so invested as to render such payment impossible, as would he the case if the investments could noc be converted to cash.

We think it evident and unavoidable that the company, through its directors and officers, had the right to sell or pledge the stocks owned by it, and that if the president was not specially authorized by the board of directors to make the note and pledge in favor of defendants, the entry of the transaction in the books of the company and the drawing of the proceeds and using them for its benefit, brought knowledge to the directors and amounted to a ratification of the transaction.

The l.iw of agency invoked by plaintiff’s counsel is not properly applied b,v him in this case. A corporation, as an intellectual being', is vested with the powers necessary for the purposes for which it was incorporated, and as above said it can act only through its officers, who exercise those powers in the manner provided. The power or authority to make, loans, execute notes, pledges, etc., by corporations is not derivet: from or regulated by the law of mandate as contained in the Civil Code, but from the law of its creation and if not conferred by the express letter of its charter, may he inferred or implied from the powers actually conferred. The powers of the attorneys or officers of the corporation, if not expressly determined by the charter or by-laws, are regulated as those of other agents and their exercise may be ratified by the corporation as those of other agents may be ratified by their principals. R. C. C. 438 et seq., 3000, 3010 ; 23 An. 235.

The case of A. Levy et als. v. Mutual Benefit Life and Fire Insurance Company, 8 An. 380, relied on by plaintiff, differs from this in the fact that the directors in that case did an act in conflict or inconsistent with an express provision of the charier, to wit: the making a different use of the premium notes from that stipulated in the charter, while in this case the iunds intended for the payment of losses were .used for the purpose intended and it was a question within the discretion of the directors whether it was to the interest of the company to sell or to pledge the stock in question and in which their funds had been invested.

Judgment affirmed.


author: Wxlt, J.

text:
    No. 3311.
    State ex rel. A. De Monasterio v. Alfred Shaw, Administrator, et als
    Act No. 5 of extra session of 1870, approved March sixteenth, 1870, which prohibits the remedy by mandamus against the city of New Orleans and the officers thereof, applies with equal force and effect against any creditor or pretended creditor who seeks by mandamus to compel the administrators of the floating debt of the city to approve all claims without examination which may be presented to such committee to be audited and approved.
    The administrators of the floating debt being invested by virtue of their powers as such board with a discretion, to either allow or disallow such claims, cannot be compelled by mandamus to allow any particular claim, although it may have been warranted for by one of the corporations now consolidated with and included in the corporation of New Orleans.
    APPEAL from tbe Eighth District Court, parish of Orleans.

      Dibble, J. Lea, Finney & Miller, for relators.

      George 8. Lacey, City Al toruey, and Eornor Benedict, tor defendants and appellants.
   Wxlt, J.

This is au application for a mandamus on the Mayor, the Administrator of Accounts, and the Administrator of Finance of the city of New Orleans, to direct the Administrator of Accounts to prepare and include in the statement of matured obligations of the city of New Oilcans, existing the sixteenth March, 1870, the sum of $2930, due to relator as holder of certain warrants; to attest the said statement; to furnish the same as attested and approved by the Mayor and Administrator of Finance of New Orleans to the Administrator of the Floating Debt, and directing said Mayor and Administrator of Finance to approve said statement.

The official acts thus sought by relator to be performed by respondents, are said to be imposed upon them by section 40 of the act of the Legislature of sixteenth March, J870 (session acts 1870, p. 40), and are intended to place in possession of relator a certificate from tbe Administrator of the Floating Debt, by which reiator would be enabled to •obtain, from, the city of New Orleans the said sum of $2930 which he ■alleges to be due to him.

The defendants excepted to the form of proceeding on the ground "that under act No. 5 of the extra session of 1870, the writ of mandamus ■can not legally issue against them for the purpose stated in the petition, and because the duty required of them under section 40 of act No. 7 of the extra session of 1870 is not purely ministerial, but in furnishing “a full and correct statement of all the mature obligations ■of the city,” and in attesting the same as required by the statute, the defendants are invested with some discretion as to the validity of the ■claims or obligations so to be attested by them, and that the writ of mandamus will not lie to compel them to perform a duty involving discretion to be exercised by them.

The court gave judgment for the relator rendering the mandamus peremptory, and the defendants have appealed.

The debt for which the relator seeks the summary remedy of mandamus, consists of seven warrants issued by the police jury, parish of •Orleans, right bank, for the aggregate amount of $2930. The authority for the proceeding is claimed to be in section 40 of act No. 7, extra •session of 1870, and is as follows:

“That the Administrator of the Floating Debt of the city'of New Orleans and the corporations consolidated by this act, shall be furnished with a full and correct statement of all the mature obligations of the city at the date of the passage of this act, to wit: Of all final judgments, warrants, registered certificates and unredeemed city notes, used as currency, which have been issued by said cities and' police jury, as consolidated by this act; that said statement shall be prepared by the Administrator of Public Accounts of the city, and by him attested under oath, and shall be further approved by the Mayor •and the Administrator of Finance, and it is hereby made the duty of the Administrator of the Floating Debt of the city of New Orleans, •as constituted by this act, to issue to all holders of the evidences of the debts included in said statement a certificate for the amount of their respective debts, which certificate shall obligate the said Administrator of the Floating Debt to pay to the holder or his order, out of the bonds or the proceeds thereof which may be placed with said Administrator for such purpose, the full amount expressed in said -certificate, with seven per cent, interest from the date of the issue thereof.”

This act was approved on the sixteenth day of March, 1870.

The act which defendants contend prohibits the remedy by mandamus sought in this case, is act No. 5, extra session of 1870, which was approved seventeenth day of March, 1870, one day later .than the act to which we have referred. Its title is “An act to limit and restrict the power of courts to issue orders or writs of mandamus and fieri fiadas against tlie city of New Orleans and the officers thereof, and to declare the effect and prescribe the mode of satisfying judgments for money against the city of New Orleans.”

Section first provides “that from and after the passage of this act, no court within the State shall have authority or jurisdiction to allow, order, hear, entertain or enforce any summary process or proceeding or writ or order of mandamus, either against the Controller, Deputy Controller, or any auditing ofiieer, to issue and deliver any order or warrant for payment of money, or against the Treasurer, Assistant Treasurer, or any officer or officers charged with the disbursement of the moneys of the city of New Orleans, the object of which shall be, either directly or indirectly, to enforce the payment of money claimed to be due from the city of New Orleans to any person, persons, corporation or corporations whatsoever, but all actions or proceedings for the recovery of any sum of money claimed to be owing by the city of New Orleans shall be in the ordinary form of action, instituted against the city of New Orleans as a corporation, and not against any branch, department or officer thereof, and shall in all respects be conducted in the same manner as ordinary actions.”

This statute, fairly interpreted, we think, prohibits the remedy of mandamus sought by the relator in this case. This is a proceeding directly or indirectly for the recovery of a sum of money claimed to be owing the relator by the city of New Orleans; that is undoubtedly the ultimate if not the immediate object of the suit. This object can not be accomplished by employing the writ of mandamus, because the law commands that “all actions or proceedings for the recovery of any sum of money claimed to be owing by the city*«of New Orleans shall be in the ordinary form of action, instituted against tlie city of New Orleans as a corporation, and not against any branch, department or officer thereof, and shall in all respects be conducted in the same manner as ordinary actions.”

If the relator had included in his proceeding the Administrator of the Floating Debt, undoubtedly the suit would be against the auditing and disbursing officers of the city directly for the object of enforcing payment of money claimed to be due to him as holder of the warrants of the police jury, which warrants the defendants contend are not valid debts against the city.

Stripped of its verbiage, we apprehend the meaning of the statute to be, that neither the auditing nor disbursing officers of the city shall be proceeded against summarily or by the writ of mandamus in a suit, “ the object of which shall be, either directly or indirectly, to enforce the payment of money claimed to be due from the city of New Orleans to any person, persons, corporation or corporations whatsoever,” but, that all such suits shall be in the ordinary form of action against the city as a corporation and not against its several officers!

Considering the evil which existed, the remedy prescribed and the object of the law makers, rules which should govern this court in ascertaining the meaning of the statute, we think the interpretation given is a fair one, and that it conveys the true meaning of the law.

The evil was the embarrassment in the administration of the city government, resulting from the use of the writ oí fien facias against the corporation, and also the embarrassment resulting from the use of summary proceedings against the auditing and disbursing officers of the city by its creditors for the purpose of enforcing the payment of their claims for money.

The object of the law makers was to remedy the existing evil by providing a more suitable mode for enforcing judgments against the city, and also by requiring that all suits against the city, “the object of which shall be, either directly or indirectly, to enforce the payment of money,” .to be brought in the ordinary form, and to prohibit the use of mandamus in such.cases.

But the relator contends that if act No. 5 prohibits the writ of mandamus, it is superseded by section 40 of act No. 7, which gives that remedy, because the latter is part of a subsequent statute.

We do not find that section 40 of act No. 7 gives the remedy of mandamus; and if it did, it would be repugnant to act No. 5, which was approved on the seventeenth day of March, 1870, one day later than act No. 7. In case of confliction act No. 5 would govern.

But we do not see any conflict between the two statutes. Section 40 of act No. 7 may have full force and effect, and yet the relator may be prohibited, under act No. 5, to employ the writ of mandamus in his 'suit, the object of which is directly or indirectly to recover the money which he alleges the city owes him as holder of the police jury warrants.

If it be true that the warrants held by the relator are false and fraudulent, and were improperly issued, as the defendants aver, they are not valid liabilities of the city, and ought not to be included in the “full and correct statement of all the mature obligations of the cityj” which the statute requires the Administrator of Accounts to furnish, attested under oath, and which “shall be further approved by the Mayor and the Administrator of Finance.”

If the relator’s version of section 40 of act No. 7, that the writ of mandamus is authorized by it, be true, the city of New Orleans would be powerless to resist the collection of false, fraudulent or forged warrants produced against it. If such claims can be forced by mandamus into the “ statement of all the mature obligations of the city,” that statement itself would cease to be “a full and correct statement” of its mature obligations.

It is not to be presumed that an interpretation leading to such disastrous consequences ought to be given to section 40 of act No. 7, an act itself to recharter the city, when that section is susceptible of a more enlightened and rational interpretation.

We believe that the “statement of all the mature obligations of the city ” to be furnished and attested under oath by the Administrator of Accounts, and to be “further approved by the Mayor and Administrator of Finance,” should embrace all warrants, certificates and other claims that these officers believe to be valid and binding upon the city.

This part of section 40 can not fairly be interpreted to mean, that it is the duty of these officers to attest under oath and approve of claims ■that are false and fraudulent, and which they believe are not justly owing by the city.

If all the warrants and other claims, whether jdst or not, are to be embraced in the “statement of mature obligations,” what necessity is there for the solemn attestation of the Administrator of Accounts and for the “further approval of theMaj’or and Administrator of Finance?”

We are far from believing that the law makers intended this as a mere idle ceremony. On the contrary, it seems to us to be a wise precaution to guard against the payment of false or forged warrants •and other unjust claims.

Believing that these officers of the city are invested with reasonable discretion in furnishing the “full and correct statement of all the mature obligations of the city,” 'which, they are to attest under oath ■and approve, we think the writ of mandamus does not lie to compel them to embrace in the statement a claim which they do not believe to be valid and obligatory.

It is therefore ordered that the judgment appealed from be annulled, that the mandamus herein be disallowed, and that the petition of the relator be dismissed, with costs of both courts.

Rehearing refused.


author: Ludelin®, C. J.

text:
    No. 3415.
    Frank V. Deslonde v. Charles Lozano.
    An action to contest the right ío a parish office must he filed, in the court having jurisdiction within ten days after the date of the election, otherwise the right is forfeited.
    PPEAL from the Fifth Judicial District Court, parish of Iberville.

      Posey, J. Barrow & Pope, for plaintiff and appellant.

      B. L. Bynoh, for defendant and appellee.
   Ludelin®, C. J.

The plaintiff, who was a candidate for the office of sheriff at the general election held in November, 1870, contests the election of Charles Lozano, who was declared elected to said office by the returning officers of the State of Louisiana.

The election was held on the seventh of November, the proclamation ■of the returning officers was published on the fourth of December, and the petition of the plaintiff was filed on the thirteenth of December, in the year 1870.

The defendant filed a peremptory exception to this suit, averring, .among other grounds of defense, that the petition was not filed within ten days after the election, and therefore that the right to contest the election is barred under the laws of this State. This defense was sustained by the district judge, and the plaintiff has appealed.

We think the judgment of the district court correct. The act of 1855, re-enacted in 1870, declares that “any candidate for either of the offices of the clerk of the district court, parish recorder, sheriff, ■coroner, justice of the peace, and any other parish officer that may be elected by the people, intending to contest an election, shall, within ■ten days after the election, file in the district court for the parish in which the election may have been held, a petition setting forth the facts on which he intends to contest the election.”

It is clear that if this law was in force in November, 1870, the plaintiff’s right of action was prescribed, unless the interpretation put by the plaintiff upon the clause, withiu ten days after the election,” be ■correct. He contends that the election was not over until the result of the election had been published by the returning officers, in this case “the fourth of December, 1870; and that the ten days began to run only •from that time, because until the proclamation of the returning officers had been made, the plaintiff could not know who was returned as •elected. The plaintiff refers to the case of Davis v. Maxwell, 22 An. G6, to support his interpretation. Ths only question decided in that •case was that the provisions of the act of the eighteenth of October, 18G8, were prospective in their operations, and therefore could not Tegulate the proceedings to contest an election held in the month of April, 1870. The election was completed on the seventh day of November, 1870, in conformity to article 17 of the Constitution. Ascertaining the result and making proclamation thereof by the returning officers of the State formed no part of tire election.

The act of the sixteenth of March, 1870, entitled “An Act to regulate the conduct and maintain the freedom and purity of elections, to prescribe the mode of making, and designate the officers who shall make the returns thereof,” etc., does not repeal, by implication, section 1419 of Revised Statutes of 1870. We are unable to discover anything •contradictory in the said laws. Neither have we been able to perceive why it was necessary that the publication of the result of the election by the returning officers of the State should be made before the plaintiff could file his suit to contest the election.

Section 53 of the act of sixteenth March, 1870, provides that “the ■supervisor of registration shall, immediately upon the receipt of each ballot box, note its condition and the state of tbe seals and fastenings thereof; and shall then in the presence of the commissioners of election and three citizens, freeholders of the parish for such poll or voting place, open the ballot box and count the ballots therein, and make a list of all the persons voted for, the number of votes for each person, the number of ballots in the box, and the number of ballots rejected and the reason therefor. The statement shall be made in triplicate, and each copy shall be signed and sworn to by the commissioner of the poll and by the supervisor -of registration. As soon as the supervisor of registration shall have made the statement above provided for for each poll in his precinct or parish, and it shall have been sworn to and subscribed as above directed, the supervisor of registration shall -inclose in an envelop of strong paper or cloth, securely sealed, one copy of such statement from each poll, and one copy of the list of persons voting at each poll, and one copy of any statements as to violence or disturbance, bribery or corruption, or other offenses specified in section nine of this act, if any there be, together with all memoranda and tally list used in making the count and statement of the votes, and shall send such package by mail, properly and plainly addressed to the Governor of the State. The supervisor of registration shall send a copy of said statement to the Governor of said State by the next most speedy mode of conveyance, and shall retain the third copy in his own possession.”

Thus it is clear that if the supervisor of registration did his duty (and we are bound to assume that he did in the absence of proof to the contrary), the plaintiff had the means of knowing that he would not be returned as elected, and every act he complains of must have been as well known to him the day after the election as after the proclamation of the result made by the returning officers.

It is therefore ordered and adjudged that the judgment of the district court be affirmed, with costs of appeal.


text:
    No. 2299.
    Marcus L. Bell, Trustee, v. J. R. Powell.
    A factor or commission merchant who resides in the city of ITew Orleans, who accepts a consignment from a person acting as trustee in a State where such titles are universally recognized, can not compensate the claim against himself for the proceeds of the articles consigned with a debt held by him against the person from whom the trust is derived.
    APPEAL from the Sixth District Court, parish of Orleans.

      Cooley, J. Bradford, Lea & Finney, for plaintiff and appellee.

      Lacey & Butler, for defendant and appellant.
   Ludeling, C. J.

During the year 1866, J. R. Powell, a cotton factor and commission merchant of New Orleans, furnished supplies and money for the cultivation of the crop on P. P. DeBosy Desit’s plantation, situated in the State of Arkansas, and the latter promised to ship his crop to the former.

One J. J. Walstein held a judgment in the United States Circuit Court for tlie Eastern District of Arkansas against the said DeBosy Desits, and he was about to levy an execution upon the cotton and other property of said Desits, when it was agreed that a deed of trust should be executed upon the cotton crop then being picked, and estimated at one hundred and twenty' bales, and supposed to be worth $15,000. Accordingly, on the sixteenth day of October, 1866, DeBosy Desits executed a deed of trust to Marcus L. Bell upon one hundred and twenty bales of cotton on his farm, which said cotton was to be shipped and sold by the trustee, and out of the proceeds of sale eight thousand dollars were to be paid to the account of said Walstein on his claim of $16,900 then due him by Desits; and it was further stipulated that-after forty bales of cotton were consumed by the trustee, he should pay to DeBosy Dcsits, out of the next shipment, the sum of fifteen hundred dollars, to enable him to pay Jesse R. Powell for cash and goods advanced him. And it was agreed personally between DeBosy Desits and Marcus L. Bell that inasmuch as Desits owed Powell fiftoen hundred dollars for cash and supplies advanced, the said Bell should ship to Powell, as a commission merchant, .the cotton to give him the benefit of the commissions for selling.

In accordance with the agreement, Bell, trustee, shipped forty-eight bales of said cotton to Jesse R. Powell, which he sold for $5670 06 net. Powell remitted to plaintiff, out of the proceeds of the forty-eight bales, the sum of $4950, and having refused to pay the balance of the proceeds on the drafts of the trustee, Bell shipped the remainder of the cotton, nineteen bales, to other parties. Bell paid to DeBosy Desits $1450 of the $1500 which it was stipulated in the deed of trust that he should pay him to enable Desits to pay Powell, and the crop being smaller than was estimated, the trustee refused to pay him any more.

This suit is to recover from the commission merchant of the trustee the remainder of the proceeds of the sale of the forty-eight bales shipped to him.

The defense is substantially that Powell, a commission merchant, had furnished necessary plantation supplies and advanced cash to buy necessary plantation supplies to enable DeBosy Desits to make the cotton, to the extent of $1724 08, and that it was agreed at the time the cotton was shipped that he should reimburse himself out of the proceeds, and that, expecting to get the whole crop, he had paid in error $1004 more than was due by him, after deducting the advances made by him. He pleads compensation, and prays for judgment in reconvention for $1004 against the plaintiff.

The question presented for decision, then, is whether a factor who accepts a consignment from a person acting as trustee, in a State 'where sucii titles are universally recognized, can compensate the claim against himself for the proceeds of the sale of the articles consigned with a debt held against the person from whom the trust is derived? We-think not. Even if the cotton had been shipped by DeBosy Desits himself, the consignee would have been obliged to obey the instructions of the consignor in relation to the proceeds of the cotton consigned to him. 2 An. 27, Bludworth v. Jacobs; 6 An. 46, Nolan v. Shaw; C. C. 2207, 2927.

In his letter advising Powell of the first shipment of cotton, the plaintiff says: "Place cotton to my credit as trustee.” Bell’s title as trustee was perfect by the laws of Arkansas, where all the parties to. the trust resided, and where the property which was the subject of the-trust was situated. And the evidence in the record shows that all the stipulations of the deed of trust have been complied with, "so far as. the cotton would go.” It must be observed that the contract creating-the trust was made with Desits, and not with Powell, and that the-clause reserving $1500, which was for the benefit of Powell, contained the stipulation that this sum was to be paid to Desits himself, who-reserved the right to settle his accounts with Powell, and the evidence shows that $1450 was paid to Desits, this sum being all that was left, of the proceeds of the cotton.

It is therefore ordered and adjudged that the judgment of the district court be affirmed, with costs of appeal.


author: Taliaferro, J.

text:
    No. 3456.
    State of Louisiana ex rel. Weber v. A. E. Billings.
    If a suit to test the right to an office he tried in chambers, legal notice must be given to the parties interested. Revised Statutes, section 2605.
    A judgment rendered on default in a suit to test the right to an office, "when the court is-not in regular session, without giving the parties interested legal notice of thú trial, iy null and void.
    APPEAL from, the Eighth District Court, parish of Orleans.

      Emerson, Judge of the Third District Court, presiding in the Eighth.

      Simeon Eelclen, Attorney General, for relator.

      O. 8. Mee & W. Ii.. Whitalcer, ior defendant and appellant.
   Taliaferro, J.

William Weber alleging that he was duly elected Recorder for the Fourth District of New Orleans in April, 1870, and while exercising the functions of his office under a commission duly issued, he was forcibly ousted from and deprived of the said office by A. E. Billings, who has intruded himself into and illegally exercises the functions of recorder of said district. Judgment was rendered in favor of the complainant, and the defendant appealed.

The defense is that the proceeding taken by the complainant is null and without effect, having instituted it on the seventh of July, 1871,. causing citation to be served on the fourteenth of that month, all during vacation of the court. No answer was filed. A judgment by default was taken, which, on motion, three days afterwards was made final.

Section 2605 of the Revised Statutes provides in cases of this sort that they may bo tried in chambers or at a special term called by the judge, on legal notice being given the parties interested. The suit was instituted and judgment was rendered out of term time. The court before which it was brought was' not in regular session. NO' special term was called as directed by law to try the case, and no legal notice was given to the parties interested.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed. It is further ordered that this case be remanded to the court of the first instance to be l>roeeeded with according to law, the appellee paying costs of this appeal.


text:
    No. 1944.
    Augustus W. Walker v. Etienne Villavaso.
    Ia a suit for damages on an. injunction bond, if the record shows that the equitable remedy of injunction has been abused, and the administration of justice has been trifled with, then and in such case the court will assess against such party the highest damages allowed by law.
    APPEAL from the Second Judicial District Court, parish of St. Bernard.

      Pardee, J. A. Madison Pay and Sambola & Pucros, for plaintiff and appellant.

      0. Poselhis & Alfred Philips, for defendant <• and appellee,
   Ludeling, C. J.

This is an appeal from a judgment dissolving an injunction, being the third injunction which the plaintiff had obtained to prevent the execution of an order of seizure and sale, and it is the third time the case has been brought before this court. In the first instance the injunction was dissolved with damages; the second injunction was decreed to be in violation and contempt of the authority of this court, and therefore null, and a mandamus to the Judge of the Second Judicial District commanded him to cause the judgment of this court to be executed. During the temporary absence of that judge an injunction was again obtained to arrest the execution, or order of seizure and sale, on the grounds, substantially, upon which the second injunction had been obtained, and it was dissolved, with fifteen hundred dollars damages. The appellee has prayed for an amendment of the judgment by allowing the highest damages which the law allows. See 18 An. 712; 20 An. 521; 5 An. 648 ; 6 An. 471; 10 An. 734; 14 An. 333.

The evidence in this record shows that the equitable remedy of injunction lias been abused and tbe administration of justice has been trifled with by the plaintiff in this suit.

If is therefore ordered and adjudged that the judgment of the court a qiia be amended so as to allow one thousand dollars special damages and twenty per centum on the amount of the judgment enjoined as general damages against the plaintiff and his security on the injunction bond in solido, and that as thus amended the judgment be affirmed with costs of appeal.

Rehearing refused.


text:
    No. 2264.
    Merchants’ Mutual Insurance Company v. Louisiana State Mutual Insurance Company and The Citizens' Mutual Insurance Company.
    A datien en paiement by an insolvent to one of bis creditors with a view of giving an undue advantage or preference over tlie other creditors may be annulled at the suit of the other creditors, but in such case, if the debt for which the property has been given in payment bo a just and valid claim, then and in that case ho shall only lose the advantage ondoavored to be secured, by such contract.
    APPEAL from the Fourth District Court, parish of Orleans.
    Théard, J. A. <& M. Voorhies, for plaintiff and appellee.

      G. Schmidt, for defendant and appellee.

      Johnson & Dennis, for defendant and appellant.
   Taliaferro, J.

This suit is brought to annul a sale or datien en paiement made by tbe Citizens’ Mutual Insurance Company on the eye of alleged insolvency, and for the purpose, as charged, of giving an undue preference to the Louisiana Mutual Insurance Company over their other creditors. It is shown that the Citizens’ Mutual Insurance Company, being indebted to the Louisiana Mutual Insurance Company in the sum of $7591, transferred to the latter six undivided fifty-eighth parts in ownership of the .lot of ground and the New Orleans Opera House thereon situated, and four shares of the stock of the Valhtte Dry Dock Company, for the release of their indebtedness, and for the further consideration of $6000 in cash.

The plaintiff avers that this act of transfer or giving in payment is null for the reasons—

First — That the President of the Citizens’ Mutual Insurance Company was without right or authority to alienate the real estate of the company.

Second — That the subsequent alleged ratification of the act is a nullity, because there was not a quorum of the directors present on the occasion, the meeting being irregular and informal, and without the proper notice.

Third — That for some time previous to this transaction the Citizens’ Mutual Insurance Company was in a state of actual insolvency, a fact ■of which the pretended vendee was well aware. That the transfer of their property under those circumstances operates injuriously to plaintiffs, who are judgment creditors for a large amount of the .Citizens’ Mutual Insurance Company.

A judgment declaring a forfeiture of the charter of the Citizens’ Mutual Insurance Company and appointing a liquidator was rendered hy the Fourth District Court ou the twenty-sixth December, 1867. ■This suit to annul was filed in the Fifth District Court on the tenth of March, 1868, and was transferred to the Fourth District Court and .cumulated with the proceedings in insolvency.

The liquidator intervened in the action to annul, and prayed that judgment of nullity he rendered, and that the property sold be returned .as assets of the insolvent for the benefit of the creditors. There was judgment rendered in favor of the plaintiff annulling the sale and decreeing the property to he sold forthwith at public auction, and from ■the proceeds that the sum of six thousand dollars he paid over to the Louisiana Mutual Insurance Company, and that that company be placed hy the liquidator as an ordinary creditor for the sum of $7591. From this judgment the Louisiana Mutual Insurance Company appealed.

We think there is no force in the first ground taken. By the fourth article of their charter, the Citizens’ Mutual Insurance Company, the Board of Directors is to consist of thirteen members. The Board is vested with power “to make and adopt all necessary by-laws, rules and regulations for- the government of the company and the transaction of its affairs,” etc. The first article of the by-laws provides that five directors shall constitute a quorum for the transaction of business. The meeting which ratified the President’s act was composed of five directors.

The sale or datien en paiement sought to he annulled was effected on the twelfth of September, 1867. The liquidator testified that the “ company commenced to he in insolvent circumstances in the beginning of 1867; that the company went to protest on the ninth of September of that year; that the company up to the time he testified was perfectly insolvent. He knew the faet, because all the stocks of hanks owned hy the company were pledged to raise money, and every sixty days the note of the company was renewed. That the collections of premiums showed a material decrease in the affairs of the company. That there are acknowledged losses which the company had failed to settle, and he specified certain loans made to the company that remain unpaid.

The President of the Louisiana Mutual Insurance Company, as' a witness in behalf of the defendant, states that he knew the Citizens’ Mutual Insurance Company was in embarrassed circumstances at the-time of accepting tlieir proposition, to transfer the property in question,, but did not know that it was insolvent at that time. He admitted that he had heard of the protest before entering into the contract with the company, but that the secretary of the company had given him an ex-ilian ation of the matter. He stated under cross examination that he knew the company was in embarrassed circumstances before the protest of its note, ninth of September.

The whole tenor of the evidence makes it clear to our minds that Tiie Citizens’ Mutual Insurance Company, at the time of its sale or-giving in payment to the Louisiana Mutual Insurance Company of the property nowin controversy and for some considerable time previous, was in failing and insolvent circumstances, and that the act was. entered into with the view of securing an advantage in favor of the last named company. We are of opinion that article 1983 [1978] Revised Code is applicable to this case: “ But if such fraud consisted merely in the endeavor to obtain a preference over other creditors ior the securing of payment of a just debt, under circumstances in which by law the endeavor to obtain such preference is declared to be a constructive fraud, in such case the party shall only lose the advantage endeavored to be secured by such contract, and shall be reimbursed what he may have given or paid, but without interest, and he shall, restore all advantages he has received from the transaction.”

We.think the judge a quo erred in ordering a sale of the property. If sold, it might not realize the amount to be refunded to the defendant, who is entitled to the full amount he gave. The decree must, therefore, be that the liquidator, acting for the creditors, pay over to the defendant six thousand dollars as a condition precedent to the return of the property as assets of the insolvent company.

It is therefore ordered, adjudged and decreed that the judgment of' the district court be annulled, avoided and reversed.

It is further ordered and adjudged that the sales and transfers made by tile Citizens’ Mutual Insurance Company to the Louisiana Insurance Company, viz: the one before Edward S. G-otfcschalk, on the-twelfth of September, 1867, of the shares and interest in the New Orleans Opera House, and tire other by II. Casterede of the stock of the Yallette Dry Dook Company, on the same day, be annulled and set aside; and that the said property, purporting to have been transferred by said acts, be restored to the liquidator of the Citizens’ Mutual Insurance Company for the benefit of the creditors of said company, provided that thereupon or before the said liquidator in the interest of said creditors, pay to the Louisiana Mutual Insurance Company the sum of six thousand dollars, the plaintiff and' appellee paying costs of this appeal, the Louisiana Mutual Insurance Companytliose of. the court below.

Rehearing refused.


text:
    No. 3334.
    City of New Orleans v. A. W. Walker.
    A defendant who appears for the purpose of excepting to the jurisdiction of the court, and at the same time enters the plea of Ms pendens, can not "be heard to urge the plea of want: of citation. 21 An. 438.
    The court having jurisdiction of the property taxed has jurisdiction to enforce the collection of the taxes.
    The plea of Ms pendens will not he sustained when the thing demanded in the1 two cases is not the same.
    PPEAL from the Seventh District Court, parish of Orleans.

      Oollens, J. AT. JET. Walsh, for plaintiff and appellee.

      John S. Tally, lor defendant and appellant.
   Ludeling, C. J.

This is a suit to enforce the collection of $760 taxes due to the city of New Orleaus. The defendant appeared and excepted to the jurisdiction of the’court outlie ground that he is a resident of the parish of St. Bernard. He further averred, in case this exception should be overruled, that his name and surname has not been stated in the list published, which is to stand in lieu of a cita-. tion; and he still further pleaded lis pendens.

A want of citation is cured by the appearance of defendant in the suit for any other purpose than to allege the want of citation. 21 An. 438, City of New Orleans v. Hall.

The tax claimed is an assessment upon real and personal property situated within the corporate limits of the city, and is exigible in the courts within said city.

The plea of Us pendens is not well founded. The thing demanded in the two cases is not the same.

It is therefore ordered that the judgment of the district court be affirmed, with costs of both courts.


text:
    No. 3538.
    New Orleans, Mobile and Chattanooga Railroad Company v. Francois Bougere.
    In a proceeding for the expropriation of private property for the use of a railroad corporation the plaintiff is eulitled to notice of the award of the commissioners, in order that it may show that the award is extortionate in amount. In such a caso, a judgment that has been rendered on the report of the commissioners, without giving notice to the railroad company, will be reversed on appeal and the case will he remanded for service of tho> rule and for further proceedings according to law.
    APPEAL from the Fourth Judicial District Court, parish of St. Charles,

      Beauvais, J. John S. llsley, Jr., for plaintiff and appellant.

      JS. Fillenl, for defendant and appellee.
   Taliaferro, J.

This is a suit for the expropriation of property. Proceedings purporting to have been taken under the provisions of an act of the Legislature, approved nineteenth of August, 1868, are shown by the record. We find that a judgment was rendered in conformity with the report of commissioners appointed to assess the damages sustained by the defendant, who seems to have acquiesced in. the decree of the court. But the plaintiff appealed, and he complains that'after the report of the commissioners was returned he was allowed no opportunity to oppose it and show that the award rendered by ths commissioners is excessive and exorbitant in amount". This allega1 ion seems to he sustained by the evidence in the record. The commissioners’ report was filed in court on the seventh of March, 1871. On the third of April, the plaintiff’s attorney being absent, an order was rendered, on motion of the defendant’s counsel, fixing the cause for trial on the sixth of April. On that day a rule was taken on the plaintiff to show cause why the report of the commissioners should not be homologated. Nothing shows that the plaintiff had notice of the rule in any manner. An order was rendered on the same day, making it absolute, and the judgment thereupon was rendered.

We think the proceeding inegular. Having taken a rule upon the plaintiff to showcause why the report of the commissioners should not be made the judgment of the court, it was incnmbent upon the defendant to have it served upon the plaintiff that he might interpose objections, if he had any.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed.

It is further ordered that this case be remanded for service of the rule to show causo and for further proceedings according to law, the defendant.and aDpellee paying costs of this appeal.