author: Watkins, J.

text:
    No. 10,750.
    E. J. Munson et al. vs. Board of Commissioners of “The Atchafalaya Basin Levee District.” Searing Taylor et al. vs. Same. Joseph Aucoin et al. vs. Same. Aldrich and Barton et al. vs. Same. John Hill et al. vs. Same. J. K. G. Kitridge et al. vs. Same.
    Consolidated.
    1. A taxfor the local purposes of a particular district of country is imposed on the persons domiciled, or the property therein situated, as distinguished from other portions of the State; and it is usually imposed upon all the subjects on ■which the State imposes a tax, within that particular district of country for State purposes, without any attention being paid to the benefits to be conferred. Such a tax is the one provided for, and contemplated in Article 214 of the Constitution, and in its amendment.
    2. A local assessment is a contribution for the purpose of constructing works of public improvement for the advantage of a particular district, and not to be levied upon taxable property generally, b\it upon particularized property to be benefited thereby, and with direct reference to such benefit as the property may receive therefrom.
    3.The levy of a local assessment is an exercise of the taxing power in its broadest and most comprehensive sense; yet it is not a “tax” eo nomine, and is not governed by the provisions of the Constitution on the general subject of taxation; but same is exerted entirely independently of all its provisions on the subject of taxation.
    4.A local assessment is not a burden but an equivalent for enhanced value which property peculiarly situated, as respects a contemplated improvement, is supposed to receive therefrom — a peculiar species of .taxation, standing apart from the general burdens imposed for State and municipal purposes, and which is governed by principles which do not apply generally.
    5.Whether particular property will be benefited at all, and to what extent it should be locally assessed, are purely political questions with which the Legislature is competent to deal, and the determination of those questions must he left to its wisdom and discretion. Rut when a question of the necessity for an increase of the rate of levee district taxation arises, it must bo referred to the property tax payers of the district.
    6.The two purposes which were subserved by the amendment of Article 214 of the Constitution wore (1) an increase of the rate of taxation therein limited, from five to ten mills, and (2) a provision of the means for a further increase of the rate of taxation therein limited, by its submission of the question to a vote of the property tax payers of the district.

      1. This amendment relates to and provides for district levee taxation, and does not relate to or limit legislative power of local assessment.

      8. In respect to the provisions of Act 97 of 1890, appertaining to the levy of acreage and produce taxes, it is held to be constitutional; and the levee district bonds which are therein authorized to be issued are held to be of unquestionable validity, and the legislative authorization thereof is likewise held tobe constitutional.
    9. Inasmuch as the Federal government has not as yet assumed permanent control of the levees in this State, and has not as yet provided ways and means for their maintenance, the limitations imposed in Article 215 of the Constitution, upon the powers conferred in Articles 218 and 214, are inoperative, and the charge of unconstitutionality of Act 97 of 1890, in this regard, can not be maintained.
    APPEAL from the Twenty-third District Court, Parish of West Baton Rouge. Talbot, J.

    E. N. Sims, J. E. Poohé and G. A. Gondran for Plaintiffs and Appellants:
    1. Prior to the adoption of the Constitution of 1879, the taxing power of the Legislature of the State appears to have been untrammelod or unrestrained by any constitutional limitation. The manner in which that unbridled discretion was exercised is well illustrated by the enormous volume of the State debt at the time of the adoption of the constitutional amendment of 1874, scaling and reducing tlie’same to 60 cents on the dollar, and the heavy and crushing burdens under winch the inhabitants of the parishes and municipal corporations in this State struggled and groaned for years.
    2. Thq call for a constitutional convention in 1879 was inspired by the desire and determination of the people to arrest and correct, and, if possible, forever prevent a recurrence of the flagrant abuses and wasteful extravagance which had prevailed in the administration of their public affairs under the Constitution ' of 1868, for a period of nearly ten years, the evils whereof remained and were solely felt and realized in excessive and oppressive rates of taxation.
    8. The raison d'etre of the constitutional convention of 1879 was the purpose of the people to place restrictions and limitations upon the legislative authority, especially with respect to the taxing power, and to reduce the burden of taxation. This fact is historical, and every line in that instrument strongly confirms it. Therefore does it constitute a most important element in the construction of legislative powers under our existing Constitution.
    4. The plea of stare decisis, founded upon the authority of the Charnoclc and Excelsior Planting Company cases, ought not to prevail. At the time those decisions were rendered, the amendment to Article 214, which expressly restricts the authority of the commissioners to raise additional district funds for levee purposes to the conditional approval of the property tax payers, had not been adopted, and the proviso in the amendment implies and carries an absolute prohibition to raise additional funds by any other method. !No “ rule of property ” is involved in these cases. Plaintiffs resist what they consider acts of legislative usurpation to prevent confiscation and consequent irreparable injury. The vindication of their rigxits can not affect acts in other districts, the validity of which has heretofore received judicial recognition.

      5. In construing constitutions, courts have nothing to do with the argument ab inconveniently and should not bend the Constitution to suit the law of the hour. 5 Ind. 565.
    ■Contemporary construction * * * can never abrogate the text; it can never fritter away its obvious sense; it can never narrow down its true limitations; it can never enlarge its natural boundaries. Story on Const., Sec. 407. Acquiescence for no length of time can legalize a clear usurpation of power where the people have plainly expressed their will in the Constitution and appointed judicial tribunals to enforce it. Cooley Const. Lim., p. 71.
    In exercisingthis high authority, the judges claim no judicial supremacy; they are only the administrators of the public will. Ibid., p. 160.
    •6. Acts 95 and 97 of 1890, so far as they authorize the commissioners of the two districts to levy or assess acreage taxes on lands, taxes on specified products of the soil and the issue of bonds, are without warrant in the Constitution, are unconstitutional, in violation of the provisions of Article 214 and in derogation and contravention of the provisions of Article 215.
    7. The only power vested in the commissioners to raise funds for levee purposes by the exercise of the taxing power is conferred upon them directly by the Constitution, Article 214, which confines that power to the alluvial portions of the district subject to overflow, and limits the levy to 10 mills. 33 An. 833.
    8. The Constitution havingfixed and established the basis of apportionment, limited the rate of taxation and provided for an increase of funds in case of necessity, on the approval of the tax payers, the whole subject matter is embraced in and regulated by Article 214, and the Legislature was without power to alter the apportionment or enlai’ge the authority of the commissioners, so far as the taxing power is concerned.
    9. The fund authorized to be raised by Article 214 by the commissioners, is, from its very nature, a special fund for a specific purpose; and the tax by means of which they are to obtain that fund is necessarily a special assessment on property on the basis of benefits. Article 214 is therefore restrictive and limitative upon the authority of the commissioners, who are the immediate mandatories of the people, as regards the imposition of special taxes or assessments for levee purposes. 33 An. 833; 34 An. 506.
    10. There is no warrant in the Constitution for the delegation of any taxingpower by the Legislature to the district levee commissioners. Const., Arts. 202, 204, 213, 214, 215; 33 An. 833.
    11. The word “ taxation,” in its ordinary or general sense, means the contribution which the citizen is required to make for the support of the government of the State, and the subordinate governments of parishes and municipal corporations. Because a special assessment is called a tax, that fact does not make it a tax in the striot sense of the term. 11 An. 222.
    12. There is no kind of analogy between the corporation of a pari h or municipality and the corporation of a levee district. The former are created for governmental purposes, while the latter is established solely to the end of doing certain works and possesses none of the salient attributes of a parochial or municipal corporation. A tax therefore for general pai*ochial or municipal purposes is widely distinct from a local tax for levee purposes, as is the former from a paving tax imposed on property within a subdivision of a city on the basis of benefits. Burrows on Tax., p. —; Cooley, p. —.

      13. If we paraphrase Art. 214 and insert City of New Orleans or the parishes of the State, instead of State and similar provisions, as are contained in it, substituting “paving” and “ drainage” instead of “levee,” the contention that, under the provisions of such an article, the Legislature could rightfully authorize the paving and drainage commissioners to increase the burdens under the pretext of a levy of “ special assessments,” would be instantly rejected as unworthy of serious consideration. There is no difference between the proposition just stated and the construction of Act 214, contended for by defendants.
    14. No constitutional warrant exists for the issue of bonds by district levee commissioners. The objections urged against the other obnoxious sections of the two acts apply with equal force. Article 213 does not contemplate the issue of bonds nor does it authorize the pledge of the 10 mill tax for an indefinite period of time. Their issue would violate Article 215 because the provisions of the two acts are declared irrepealable, and that article ordains that taxation for levee purposes shall cease upon the happening of a contingency explicitly described.
    15. The distinction drawn in the numerous decisions of the courts of other States between what are properly termed “ special assessments ” and the word “ tax,” in the general sense in which it is used in their different State Constitutions, has no kind of application to the present case, because we do not believe that there exists in the Constitution of any other State provisions similar to those contained in Article 214. If such there be, our researches have failed to dis cover any judicial construction or interpretation thereof.
    16. Independently of the question of constitutionality, the enforcement of the obnoxious'provisions of Acts 95 and 97 would be in the highest degree burdensome and oppressive. Taxation on property, for all purposes, ranging from 38 to 57 mills on the dollar on the assessed valuation, borders closely on confiscation.
    17. The issue of bonds is wholly unnecessary, as was the imposition of the acreage and produce taxes. The Atehafalaya Basin District contracted for levee work to the amount of $250,000, as stated in the answer, and the funds available will amount to $260,000. In the Pontehartrain District the contracts amount to $124,000, and the available funds to $140,000. And in each case the amount of available funds is exclusive of any acreage or produce tax.
    18. The necessity for judicial relief, as prayed for by the plaintiffs, is urgent; if the-bonds are permitted to go out, the evils complained of will be past remedying, and the injury will have become irreparable.
    O. O. Provosty for Defendants and Appellees:
    1. If the Atehafalaya Basin Levee District were the private property of a practical business man he would either build no levees at all, or build safe ones, regardless of the cost. He would not run the risk of both failing to accomplish his purpose and losing the money spent in the attempt. Levees are indispensable;, the Constitution ordains the building of them; the object of Act 97 of 1890 is to provide sufficient means to build safe levees; therefore in passing that act the Legislature has but acted as a good administrator and obeyed the constitutional behest.

      2. The assessments levied by the act are not violative of Articles 208,214 and 242 of the Constitution, on the subject of taxation. Local assessments for public works, levied, not on taxable property generally for common public benefit, but only on particular property specially benefited by the works as an equivalent for the direct benefit conferred, although an exercise of the taxing power, are not considered as taxes within the scope and meaning of constitutional restrictions on the general power of taxation. Excelsior Co. vs. Green, Tax Col., 39 An. 455.
    3. Local assessments are, as a general rule, levied on land alone; but this is only because land is the kind of property which is usually benefited; but there exists no such constitutional or other restriction on the legislative power; and when particular personal property has enjoyed a benefit from the works to which it owes its existence and preservation, nothing prevents the Legislature from assessing it. Excelsior Co. vs. Green, 39 An. 455.
    4. Article 44 of the Constitution, prohibiting the General Assembly from contracting a debt in behalf of the State, applies to the State alone, and not to her political and municipal subdivisions. Excelsior Co. vs. Green, 39 An. 455; Now Orleans vs. Grailhe, 9 An. 561; Dill. Mun. Corp., See. 138.
    5. Neither in the language of the amendment to Article 214 of the Constitution, nor in the history of the adoption of that amendment, is thereto be found anything whatever to indicate an intention to withdraw from the Legislature the power to levy local assessments for local benefit.
    6. The same Legislature which framed and adopted that amendment passed Act — of 1866, conferring upon the Fifth Levee District power of local assessment. This is a legislative interpretation of that amendment of the most satisfactory character.
    7. The bonds of the several levee districts having passed into the hands of the public, and a large number of contracts for levee work having been given out and] accepted, and partly performed, on the faith of the interpretation of the Constitution adopted in the cases of Charnock vs. Fordoche, etc., Levee Company, and Excelsior Co. vs. Green, and the Legislature having acquiesced in and acted upon that interpretation, it has become, as it were, a rule of property; it has become, as it were, incorporated in the Constitution, and should not now be changed.
    8. By express provision of Act No. 106 of 1890, Section 56, upon dissolution of an injunction restraining the collection of the revenue, the plaintiff in injunction must be condemned to pay damages equal to 10 per cent of the amount of his taxes.

      Reed & Ooodale on the same side.
   The opinion of the court was delivered by

Watkins, J.

These various consolidated causes are injunction proceedings taken against the Board of Commissioners of “ the Atchafalaya Basin Levee District” to prevent them from levying certain acreage and produce taxes, and from issuing certain bonds— all in pursuance of the provisions of Act 97 of 1890.

The ground of the plaintiffs’ resistance is that the act is unconstitutional and void, for the reason that its provisions authorizing the acreage and produce taxes, and the issuance of bonds, conflict with and axe violative of Article 214 of the Constitution and its amendments, and Article 215.

The levy of these taxes is assailed on the further ground that same are burdensome, oppressive and virtually amount to confiscation. Judgment went in favor of the defendants in each of the several cases in the District Court, and the various plaintiffs have appealed, and unite in one transcript.

I.

In so far as may appertain to the unconstitutionality of the act in question, in respect to Article 214, we collate from the briefs of ■appellants’ counsel the following synoptical statement of the grounds on which they rely, viz:

1. That the sole and exclusive authority of the levee commissioners to levy taxes in their respective districts for levee purposes is derived from Article 214 of the Constitution.

2. That Article 214 restricts and limits the authority and power of the levee commissioners to a levy of ten mills on taxable property situated within the alluvial portions of the district subject to overflow.

3. Authority to levy taxes on specified property, within specified limits within the- levee district, being conferred by the Constitution directly on the levee commissioners, the Legislature is without power to enlarge or extend that authority.

4. That the tax authorized by Article 214, from its very nature, the object of the levy, the purpose to which the proceeds are to be devoted, and the situation and nature of the property on which the levy is to be made, is a local tax or special assessment.

5. There is no warrant in the Constitution for the exercise of any taxing power by levee commissioners, by special assessment or otherwise, under and by virtue of any direct authority from the Legislature.

Article 214 reads as follows, to-wit: The General Assembly may divide the State into levee districts and provide for the appointment or election of levee- commissioners in said districts, who shall, in the manner and method to be provided by law, have supervision of the erection, repairs and maintenance of the levees in said districts ; to that effect it may levy a tax not to exceed five mills on, the taxable property situated within the alluvial portions of said districts subject to overflow.”

In 1884 an amendment to this article was submitted, and same, was subsequently adopted by the people. It reads as follows:

“The General Assembly may divide the Ltate into levee districts, and provide for the appointment or election of levee commissioners in said districts, who shall, in the method and manner to be provided, by law, have supervision of the erection, repair and maintenance ■ of the levees in said districts; to that effect the levee commissioners may levy a tax not to exceed ten mifls on the property situated, within the alluvial portions of said district subject to overflow; provided that in ease of necessity to raise additional funds for the purpose of constructing, preserving and repairing any levees protecting the lands of a district the rate of taxation herein limited may be increased when the rate of such increase and the necessity and purpose for which it is intended shall have been submitted to a vote of the property tax payers of such district, paying taxes for himself, or in any representative capacity, whether resident or nonresident, or property situated within the alluvial portion of said district subject to overflow, and a majority of those in number and. value voting at such an election shall have voted therefor.” Act 112 of 1884.

The following alterations in the text of the article were made,, viz: The word “if” is omitted, and in its stead the words “the levee commissioners” are employed, and the word “Jive" is omitted and the word “ten" is inserted in its place. To this article, as thus altered, the proviso contained in the act of 1884 is added.

While it is true that the court has twice examined and construed the provisions of the original article, in reference to the particular subject matter under consideration — Charnock vs. Levee Company, 88 An. 323, and Planting and Manufacturing Company vs. Tax Collector, 39 An, 455 — the plaintiff’s counsel press a serious argument against the correctness of the principles therein announced; and insist, further, that if they be correct, they are inapplicable to the provisions of the amendment of that article. They further contend, that, had the amendment formed a part of Article 214 at the time. those opinions were rendered, in their opinion a different result would have been reached by this court.

It will be observed that no assault is made upon the ten mill district levee tax assessed by the levee commissioners under and in pursuance of Article 214; but the plaintiffs’ injunction is directed specifically against the acreage and produce taxes, which are authorized by the provisions of Act 97 of 1890, the unconstitutionality of which statute is grounded on the theory that Article 214, as it is amended, provides for a local assessment, and not a tax eo nomine, and therefore under the proviso of this amendment “ additional funds for the purpose of constructing, preserving and repairing levees ” could not be raised until same had been first duly authorized by a vote of the property tax payers of the district, and in the manner directed in Act No. 8 of 1888; said Act 97 of 1890 having made no such provision, and having delegated the power to levy said produce and acreage assessments directly to the levee commissioners without the constitutional power so to do.

Therefore the principal question for our determination is, the purport and meaning of said amendment; and in so doing to determine whether it limits and restricts the legislative power to authorize local assessments.

Counsel insist that the question thus presented is res nova, and not covered by the Charnock and Excelsior Planting Company cases.

The best way to test the correctness of this view is to briefly examine the opinions in those cases and compare the principles on which they are founded with the theory of the plaintiffs’ counsel in this respect.

Stated concisely, the question is whether the amendment authorizes the levy of a tax or a local assessment; for if it authorizes the former, the power of the Legislature is limited; and if it authorizes the latter, it is unlimited.

In the Charnock ease the principal question dealt with and determined was whether or not the power of local assessment was governed by the precepts of the Constitution or resided in the Legislature; and we held that the provisions of the Constitution did not control it. In the decision of that case strong reliance was placed upon the decision of this court in Board of Levee Commissioners vs. Lorio Bros., 38 An. 276, in which a similar issue was raised and decided; but it was insisted that same was not strictly applicable, because it was predicated on legislative enactments of 1876 and 1877, authorized under the Constitution of 1868, whereas the Charnock case arose under an act passed since the adoption of the Constitution of 1879, and related to an assessment made in 1884. The court, in speaking of this contention of plaintiffs’ counsel, said:

It “is technically correct, in the limited sense, that the particular question as to whether local assessments, of the character here presented, are governed by the provisions of the present Constitution on the general subject of taxation has not yet been distinctly decided.

“ After much reflection, however, we conclude that the principles on which such contributions were excluded from the operation of similar provisions in former Constitutions apply equally to that now in force ” — in effect deciding that the cited case was strictly applicable in principle.

The court then held that “ the exaction of such contributions was an exercise of the taxing power in its broadest sense,” though not controlled by statutes and constitutions on the subject of taxation, holding with Mr. Burroughs that such assessments are “ not imposed in the exercise of the general taxing power,” but that “ the word tax or taxes,” as used in constitutions and statutes, “ was not intendedlo include local assessments.” Burroughs on Taxation, See.'5.

It further said of the opposite view that “ in the course of time the matter has been considered over and over again in our own courts and in the courts of our sister States, and by an inveterate course of decision, with rare exceptions, it has ripened into a settled principle of constitutional construction that local assessments or contributions provided for the purpose of constructing public works for the advantage of particular districts, and levied on property benefited thereby, and with reference to such benefit, are not considered as taxes within the meaning of constitutional restrictions on the power of taxation.” (Italics are ours.)

In support of these views numerous authorities are cited, and on the faith of which we said:

“We are bound to assume that this principle was present to the minds of the framers of our present Constitution, and that they were well aware that, in the absence of special provision to that effect, the restrictions which they placed upon the exercise of the taxing power would not be considered as applicable to assessments of this character.
“We have carefully scrutinized the unusually elaborate provisions on the subject of taxation, and the careful restrictions which have been placed upon the taxing power of the State, of parishes, and of municipalities, not only for general pixrposes of government, but also for works of public improvement; but we find none which cover, or exelude local assessments of the character presented in this case. Such assessments are not to be confounded with ordinary local taxation.”

The court then cites from Burroughs on Taxation the following extract, viz:

11 A tax for the local purposes of a county is imposed upon the persons or property within the county, as distinguished from other parts of the State, but it is usually imposed on all the subjects on which the State imposes a tax for State purposes. In local assessments, on the contrary, the tax is imposed on the real estate alone, and only on such real estate as is benefited by the local improvement. * * The benefit of the improvement is not only local, but also specific, benefiting particularized property, and, therefore, the tax may be levied on this property which receives a benefit. * * Assessment is not considered as a burden, but as an equivalent or compensation for the enhanced value which the property derives from the improvement.” P. 460.
“ When we closely examine the provisions of our Oonstitution, we find that they apply only to ordinary local taxation, levied in particular districts, it is true, but levied on ail taxable property within such districts without reference to special benefit to particular property. Such taxation must submit to the restrictions imposed thereby.
* * * * *
“ But these provisions have no application to that hind of taxation, which falls under the denomination of strict local' assessments which are not levied upon taxable property generally, for the common public interest, but upon particular property specially benefited, as an equivalent for the benefit conferred.
Assessments of this hind are not referred to in the provisions of the Constitution, upon the subject of taxation, which relate only to taxation upon property generally, whether throughout the State or within particular districts.”

In the foregoing quotations we have italicized the pertinent points with the view of giving them prominence, and of pointing the argument, particularly.

In the Planting and Manufacturing Company case plaintiffs enjoined the execution of the provisions of Act 14 of 1886, creating “the Board of Commissioners for the Fifth Louisiana Levee District,” and defining the powers and duties of certain levee commissioners ; and one of the plaintiffs’ principal contentions was that said act violated the provisions of the 214th article of the Constitution,” because the last clause thereof, authorizing the levy of a tax not to exceed five mills, on the taxable property situated within the alluvial portion of said districts subject to overflow, is a provision of the means for the exercise of the prior power granted, and which is restrictive and impliedly prohibitive of a resort to any other means, and that this prohibition is violated because the act, after authorizing the levy of the five mill tax, proceeds to authorize the collection of certain local contributions or assessments on particular property benefited by the levees.”

But in considering this proposition we said that “the power granted to levy the five mill tax would be exclusive and prohibitive of any levying of any greater tax; but the analogy fails entirely when the effort is made to extend the prohibition to the provision of other means than taxes. It is obvious that the object of the last clause of Article 214 was not to exclude the power of local assessment, but simply to confer the power of taxation. It was necessary for the latter purpose, because without it such power could not have been exercised, being in violation of other constitutional provisions on the subject of taxation. But the power of local assessment * * * is exerted entirely independent of this and all other provisions on the subject of taxation. To hold that the power of local assessment was taken away because the power of taxation was conferred would be to reverse the purpose of the article, and to convert what was evidently intended as the grant of a new and additional power into a distinction of a power already possessed.”

Taking up the particular assessments authorized by the act in question, which declare that in case additional funds are needed “to locate, repair and construct levees, so as to prevent disastrous floods, the said board shall have authority to levy a special assessment or forced contribution not to exceed fifty cents per bale on each and every bale of cotton,” etc.,.and which were assailed as violative of Articles 203, 209, 214 and 242 of the Constitution, we said:

It is self-evident that if the contributions here involved are embraced within the scope rnd meaning of the words taxes ’ and taxation,’ as employed in those articles, they would unquestionably violate both their letter and their spirit.”

We then referred to what was said on this subject in the Charnock case, and said:

“ On the most careful reconsideration of the question under all of the additional light thrown upon it by the arguments of counsel, and * * * we remain fully convinced of the correctness of our former decision.”

In the recent ease of Asphalt Paving Company vs. Gogreve, 41 An. —, at page 263, we had under consideration, and decided a charge of unconstitutionality of the charter of the city of New Orleans (Act 20 of 1882), on the ground that the provision thereof which authorized the local assessment of certain property fronting on a street recently paved was violative of Article 209 of the Constitution as an exercise of the taxing power.

On this question we said, quoting the article: “These provisions have exclusive reference' to the ad valorem taxation of all the property of the inhabitants of the city for purposes of revenue only;” and we quoted from Mr. Cooley a pertinent definition to the effect that “ special assessments are a peculiar species of taxation, standing apart from the general burdens imposed for State and municipal purposes, and governed by principles that do not apply generally. The general levy of taxes is understood to exact contributions in return for general benefits of government, and it promises nothing to the person taxed beyond what maybe anticipated from an administration of the laws for individual protection and the general good.

“ Special assessments, on the other hand, are made upon the assumption that a portion of the community is to be specially and peculiarly benefited in the enhancement of the value of property peculiarly situated as regards a contemplated expenditure of public funds; and in addition to the general levy they demand that the special contributions, in consideration of the special benefits, shall be made by the persons receiving it.”

We then announced our concurrence in the principles of the •Charnoek and the Planting and Manufacturing Company cases, and ■affirmed them both.

Those cases were carefully considered, and, by an unanimous court, were decided upon a due consideration and full review of all authorities bearing on the subject. They treat fully of the distinction between the terms “ tax ” and “ local assessment;” and of the exercise of the taxing power, under Article 214 of the Constitution, and under statutes similar in purport to the one under consideration; and they uphold the validity and constitutionality of the latter, because of the difference which existed between a local assessment and a tax.

It is our deliberate conviction, after a careful reconsideration of them, and of the authority on which they are bottomed, that the principles announced are correct, and they are, therefore, unreservedly affirmed.

Accepting them as correct, we find the following propositions established, viz:

1. That a tax for the local purposes of a particular district of country is imposed on the persons domiciled, or property therein situated, as distinguished from other parts of the State; and it is usually imposed upon all the subjects on which the State imposes a tax, within that particular district of country, for State purposes, without any attention being paid to the benefits to be conferred. Such a tax is the one provided for and contemplated in Article 214 of the Oonstitution.

2. A local assessment, on the contrary, is a contribution for the purpose of constructing works of public improvement, for the advantage of a particular district, and not to be levied upon taxable property generally, but upon “particularized property ” to be benefited thereby, and with direct reference to such benefit as this property may receive.

3. The levy of a local assessment is an exercise of the taxing power, in its broadest and most comprehensive sense; yet it is not a tax eo nomine, and is not governed by the provisions of the Oonstitution on the gen eral subject of taxation; but it is exerted entirely independent of all its provisions on the subject of taxation.

4. A local assessment is not considered a burden, but as an equivalent or compensation for the enhanced value which property peculiarly situated, as respects a contemplated improvement, may derive therefrom — a peculiar species of taxation, standing apart from the-general burdens imposed for State and municipal purposes, and which, is governed by principles that do nob apply generally.

The purpose and effect of which is that a “ tax,” whether general, special or particular, is a burden, while. a local assessment is. an imposition laid upon “ particularized property ” which, it is supposed on the part of the Legislature, will be specially benefited by the expenditure of the fund to be realized, in improvementthereon.. Such an assessment is not considered as a burden on the tax payer,, but as an equivalent taken from the particular property, the value of which is enhanced thereby.

Whether particular property will be benefited at all, and to what extent it should be thus locally assessed, are purely political questions with which the Legislature is certainly most competent to deal, and why should not the people trust in its discretion and competency to determine them judiciously ?

When, however, a question arises of the necessity for increasing the burdens of taxation, for any purpose whatever, it is meet and proper that the property tax payers of the district within which the-increase is proposed should be consulted.

And we take it to be quite a significant circumstance that there was incorporated in the amendment to Article 214 the identical. proviso contained in Article 209, directing that any increase “ of the rate of taxation therein limited ” should be the first submitted to a vote of the property tax payers. It seems to be indicative of the similarity of the taxing power which is conferred in each article; each being designed for similar specific purposes — the erection of a court house, or the construction of a levee.

By the amendment two important changes in Article 214 are made, viz: (1) An increase in the rate of taxation therein limited from five to ten mills; and (2) a proviso whereby there might be obtained a further increase, by submitting the question of such increase to a vote of the property tax payers of the levee district.

The language employed in the proviso of the amendment clearly indicates that it is an increase of the ten mill tax, which is provided for in the body of the amendment, that was contemplated. The proviso declares “that in case of necessity to raise additional funds for the purpose of constructing, preserving and repairing any levees protecting the lands of a district, the rate of taxation herein limited may be increased,” etc. • And it is equally true that the rate of taxation therein limited is the rate of taxation of five mills stipulated in the original article, which in the body of the amendment is raised to ten mills.

But plaintiffs’ counsel strenuously deny that any such parallel exists between the provisions of Article 209 and the amendment to Article 214, as we suggest, and insist, on the contrary, that there is a manifest distinction between the general tax which a municipal corporation is authorized to levy on all property within its limits for governmental and administrative purposes, and the special assessments — as they term them — which may be imposed within subordinate divisions of municipal territory. This argument is based principally upon the text of the amendment which provides.that the tax therein provided for is to be levied only “ on property situated within the alluvial portion of said district subject to overflow,” etc ; and of it, counsel say in their brief: “Therefore the underlying principle in Article 214 is that the high lands shall be excluded from district contributions, and that the burden shall be borne by property within the alluvial portions of the district subject to overflow.”

Hence they contend that “ Article 214 imports the levy of a special assessment for local purposes, because it is for a specific object and on specified property within prescribed limits, on the basis of benefits — that is, on the property situated within the alluvial portions of said district subject to overflow.” Page 37.

Act 14 of 1886, which we had under consideration and treated in Planting and Manufacturing Company case, contained precisely the same language as that of the amendment, and which was assailed as unconstitutional, because in violation of Article 214, though for somewhat different reasons from those urged here; but the complaint was not favorably entertained.

While it is true that the tax specified in the Article and amendment is only to be laid “ on property situated within the alluvial portions of the district subject to overflow,” and is to be levied for the specific purpose of “ constructing, preserving and repairing the levees protecting the land of a district,” it is but a “ tax ” for the local purposes of that district of country, and is imposed on the persons therein domiciled, and the property therein situated, and upon all the subjects on which the State imposes a tax for State purposes. It is not a “local assessment” for the construction of a particular work, and intended to be levied upon particularized property to be benefited thereby. It is in the nature of a burthen, and does not proceed upon the theory of benefit to the property to be assessed.

But learned counsel inquire, “How could a ‘necessity to raise additional funds ’ and to increase the rate of taxation for levee purposes ever arise if the Legislature possesses unlimited power to authorize the levee commissioners to levy unlimited acreage taxes and taxes on products for the identical purposes under the transparent disguise of a mere name or designation.” Brief, pp. 41 and 42.

We will assume, and we think with just propriety, that the Legislature will not act unwisely, harshly or injudiciously in the exercise of its practically unlimited authority in the exertion of the taxing power for the purposes of local assessment; nor indeed that same will be used at all, unless it be satisfactorily determined that the ten mill tax authorized by the amendment is insufficient!' And it is, only in the event that the tax and relief by local assessment are found inadequate for levee purposes that an increase of the rate of taxation beyond the ten mills should be proposed to the property tax payers. That is a dernier resort.

Our conclusion is, that the tax provided for in the constitutional amendment to Article 214 is not a local assessment, and the legislative act injoined is valid and constitutional.

II.

The next proposition for consideration is the alleged uneonstitutionality of that provision of the act which authorizes the issuance of levee bonds. Plaintiffs’ contention is, “that there is not only no warrant in the Constitution for the authority granted by the legislative ” act in question * * * “to the levee commissioners to issue bonds, but same is in violation of Article 215, which fixes a period to the duration of the taxing power for levee purposes.” Brief, p. 46.

Their argument is, that no authority can be vested in levee commissioners to raise funds for levee purposes, beyond what is conferred upon them by Article 214, and which is, necessarily, exclusive of every other. It is further to the effect that the legislative authority delegated to the commissioners to issue bonds is in contravention of Article 215 of the Oonstitution, which provides that levee taxation shall cease upon the happening of a contingency therein specified.

In addition to the foregoing, various other specific objections are urged to the bonds themselves, and to the terms of. the act, as appertaining thereto. For instance, that the authority to issue bonds, and pledge therefor the levee taxes, for an indefinite period of time, is contrary to the genius and spirit of the Oonstitution. That the Legislature had no constitutional authority to authorize the levy of a tax beyond the term of its own constitutional existence. That the Legislature was without constitutional authority to empower the levee commissioners to encumber the taxable property within the levee district with a tax levy for an unlimited amount, and for an indefinite time. That the Legislature was without constitutional authority to enact, that “inno event shall the tax assessed and levied for the payment of said bonds be reduced, repealed or abated until each of said bonds * * * shall have been fully paid off and extinguished.”

Through the instrumentality of this legislation, plaintiffs charge that the General Assembly has practically “invested the levee commissioners with perpetual existence, and with powers which are not only in flagrant disregard and violation of Articles 214 and 215, but would forestall and paralyze the future action of the Legislature during the period of at least one generation.” Brief, p. 49.

We think that the apprehension of such dire consequences is not well founded.

The Legislature was evidently authorized by Article 214 to “divide the State into levee districts,” and to “ provide for the appointment or election of levee commissioners in said districts.”

That article undoubtedly declares that the levee commissioners “ shall, in the method and manner to be provided by law, have supervision of the erection, repairs and maintenance of the levees in said districts.”

It also authorized the commissioners to levy a tax. From what has been said in a preceding paragraph of this opinion, it is also manifest that, as the Legislature had unlimited power in the matter of local assessments, independently of the Oonstitution, it had a perfect right to impose such penalties and confer such liens and privileges as might be necessary to enforce their collection; and it had an equal right and authority to dedicate the funds, when realized, to levee improvement, and confide them to the levee commissioners’ control and administration.

In the very nature of thirgs the board of levee commissioners were intended to be — and should have been — of long-continued existence, because of the character of the undertaking proposed; and it was manifestly necessary that the tax authorized by the amendment to Article 214 of the Constitution should have equal duration as the bonds themselves.

The General Assembly, in all likelihood, found it necessary, and deemed it expedient, to provide means whereby money could be raised and placed in the hands of the levee commissioners, so that' levee construction might not be hindered and delayed by delinquent tax collections. Of this question it was a competent judge. What other expedient could have been resorted to than that of authorizing the commission to issue and hypothecate district levee bonds? For this purpose the Legislature was capacitated to provide.

As we said of similar bonds, in the case of Planting & Manufacturing Co. vs. Tax Collector, 39 An. 459, we hold in this:

“The bonds authorized to be issued by the corporation are issued for its own exclusive purposes and benefit.”

They are not bonds of the State. We are of the opinion that the bonds in question are of unquestionable validity, and that the Legislature had constitutional authority for its enactment.

In so far as the alleged violation of Article 215 is concerned, we can not see the force or pertinency of the contention.

The provision of that article, relied upon, is as follows, viz:

“The provisions of the above two articles shall cease to have effect whenever the Federal government shall assume permanent control, and provide ways and means for the maintenance of levees in this State.” Article 215.

It is certainly manifest that the Federal government has not, as yet, assumed “ permanent control ” of the levees in this State, and that it has not, as yet, provided “ways and means” for their maintenance. There appears to be not even a likelihood that it will do so at an eaxfiy date. Then, the constitutionality vel non of the act in this respect depends upon a contingency that may or not happen in the future; and that is conclusive, against the chai’ge of unconstitutionality preferred against it.

The quoted provision of Article 215 applies to the two preceding-articles, 213 and 214, alike; and it is difficult to perceive why the objection of unconstitutionality of the whole statute was not preferred ; and, also, a claim made that those articles had themselves become inoperative, if plaintiffs’ theory were true. This argument proves too much. This contention is groundless.

Our conclusion is that the judgment appealed from is correct, and it is therefore affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 10,759.
    L. A. Ellis et al. vs. Board or Commissioners for the Pontchartrain Levee District. Allen Jumel et al. vs. Same.
    Consolidated.
    A PPEAL from the Twenty-second District Court, Parish of St. James. Duffel, J.

    Same counsel for plaintiffs and appellants as in preceding case.

      Thos. J. Semmes & Legendre for Defendant and Appellee.
   The opinion of the court was delivered by

Watkins, J.

These consolidated cases are injunction proceedings taken against Board of Levee Commissioners of “The Pontchartrain Levee District,” to prevent their levying certain acreage and pro.ducp taxes, and also from issuing certain district levee bonds, all in pursuance of and in conformity to the provisions of Act 95 of 1890.

The grounds of plaintiffs’ resistance is that the act is unconstitutional -and void, for the reason that the provisions thereof which authorize the acreage and produce taxes, and the issuance of bonds,, conflict with and are violative of Article 214 of the Constitution and the amendment thereof, and also of Article 215.

In the consolidated cases of Munson et als. vs. Board of Commissioners, etc., bearing the docket number 10,750, we have just examined and decided upon the fullest consideration, all of these identical questions and issues adversely to the contention of the plaintiffs. and appellants, and affirmed the constitutionality of the legislative enactment in question and also the judgment of the District Court.

As that opinion is fully applicable, in every respect, to the issues here presented for consideration, we adopt and adhere to it, and for the same reasons and conclusions therein stated, the judgments herein appealed from are affirmed.


author: McBnery, J.

text:
    No. 10,641.
    Louis Lafitte vs. New Orleans, City & Lake Railroad Company.
    Street railroad companies are not liable for wilful and tortious acts of tlieir servants committed outside of the scope of tlieir employment.
    They are under obligations to carry tlieir passengers safely and properly, to treat them respectfully, and if this duty is intrusted to a servant, he is responsible for the manner in which he executes the trust. They must protect their passengers, not only from violence and insults of strangers, but'a fortiori against the violence and insults of their own servants.
    APPEAL from the Civil District Oourt for the Parish of Orleans. Voorhies, J.

      P. E. Théard & Sons for Plaintiff and Appellee:
    1. A street railway company is answerable in damages for the insulting conduct of one of its drivers toward a passenger-. Williams vs. Pullman Palace Oar Co., 40 An. 87, 41; 57 Maine 202; 5 La. 431; 10 An. 1; 141-Ioward, 468; C. C.2315, 2317.
    2. A street railway company is also responsible for the unlawful and unwaranted arrest of a passenger, on a malicious charge made by one of its drivers that the passenger had passed a counterfeit coin.
    3. Proof of actual damage in such cases is not necessary. 40 An. 423; 33 An. 914; 25 An. 170; 14 An. 198.
    4. Where it is shown that the arrest was entireiy without probable cause, malice will be inferred. 6An.578; 29 An. 172; 24 An. 330; 28 An. 443.
    ■5. In a case turning on facts, the verdict of the jury and the judgment of the judge a quo, who heard and saw the witnesses and had the best opportunity of testing tlieir verity, will be affirmed, unless it is manifestly erroneous. 39 An. 20; 31 An. 430; 41 An. 808.
    This rule applies specially when the evidence is conflicting. 39 An. 610, 929; 37 An. 655; 23 An. 253; 13 L. 463.
    6. The assessment of damages to feelings and reputation is a difficult thing. It is peculiarly within the province of a jury. O. P. 313. Hence the amount of a verdict will not be reduced, unless glaringly unjust.
    '.7. When the amount allowed is small, and it is shown that the jury in assessing the damages were misled by the charge of the court, their verdict should be increased.

      Buck, Dinlcelspiel & Kart for Defendant and Appellant:
    1. A corporation, principal, is not responsible for damages caused by wilful or intentional acts of its agent or employe, not committed within the apparent or real scope of his employment.
    2. The test of liability is involved in the inquiry whether the acts, out of which the damage is alleged to have arisen, were committed in the furtherance of the company’s business, or in the protection-of its interests.
    3. The evidence showing that the drivers of the cars of the Xew Orleans, Oity & Lake Railroad Company, and particularly the driver of the car on which the incidents happened, out of which this suit arose, that said driver was furnished with a certain amount of money to enable him to make change, for the convenience of passengers; that that money was at his own risk; that he was bound to account to the company therefor whenever called upon, or at the termination of his employment; that he had no other function in connection with the payment of fares by passengers, except to give them change for money to enable them to pay their fares — passengers paying their own fares by depositing the amount in a box provided for that purpose. Held: That a controversy arising between the driver and the passenger, as to whether a coin exchanged was counterfeit or not, out of which a personal difficulty grows, terminating in the arrest of the party on the charge of the driver, is entirely a matter personal to the driver, in which the company has no interest, and the company is not responsible for the damage caused thereby.
    4. Independent of any other consideration, where such arrest of one who has been a passenger is made by a police officer, on the verbal charge or accusation of the driver, or other employe of the company, at the terminus of the company’s line, to which the passenger had been carried, and at which he left •the ear and was taken in charge on the street by the officer, on such mere verbal order, the facts do not constitute an arrest made by the driver within the line of his employment, and the company is not responsible for the consequence thereof.
    5. In an action for damages for personal insult, slander or libel, where the accusation itself is not in its nature libelous, or actionable per se, no recovery can be had without proof of special damage.
    6. In such action, as well as in the action for damages for false imprisonment, malice is the essence of the cause of action
    7. In a suit for malicious prosecution the four elements must concur: Malice, want of probable cause, prosecution and its termination, and proof of damage suffered or sustained. .
    8. Probable cause does not depend on the actual state of the case in point of fact, but upon the honest and reasonable belief of the party prosecuting. 16 An. 3; 33 An. 329.
    9. “An acquittal, or even subsequent proof of complete innocence, is not sufficient evidence of want of probable cause. Such actions are not favored, and a clear cause of the perversion of the forms of justice to the satisfaction of the perversion of the forms of justice to the satisfaction of private malice and wilful oppression of the innocent must appear to sustain them.” 15 An. 165.
   The opinion of the court was delivered by

McBnery, J.

The plaintiff sued the defendant company for $20,000 for damages for abuse when in defenant’s car, and for damages for malicious prosecution and false arrest and imprisonment. There was judgment for the plaintiff for the sum of $400, from which the defendant appealed. The facts are that, on the 27th day of December, 1889, the plaintiff entered the street car of the defendant company.

He handed to the driver of the car, through the change gate, one silver dollar for change. The drivers of the cars are instructed to furnish change to the amount of $2 to passengers. The driver returned to the plaintiff ninety-five cents, fifteen cents of which he placed in the fare box for himself and friends.

There was some altercation about the change being short five cents. The driver gave the plaintiff five cents, to make good the deficiency.

After going several squares, the driver charged the plaintiff with having handed a counterfeit dollar to him, for which he had given him the change. The driver, in the hearing of the passengers, threatened to have the plaintiff arrested when he reached the station. He frequently looked at the plaintiff in an angry manner, which attracted attention, and placed the plaintiff under suspicion. When the car reached the station, the driver and the starter at the station had the plaintiff arrested by a policeman, and confined in prison for1 a short while. There was a charge of passing counterfeit money lodged against plaintiff. The prosecution was dismissed, as the dollar, which it is alleged was counterfeit, was a good coin.

There is some conflict of testimony as to the exact point where the plaintiff was arrested. But we-believe his statement is corroborated that he was arrested at the request of the driver by the policeman in response to the whistle,” a signal for the officer, which he blew before the car stopped, just as plaintiff was stepping from the car.

The petition of plaintiff contains two causes of action: one for abuse and defamation when in defendant’s car, and the other for malicious prosecution. On the latter cause the record does not show that the charge against plaintiff and his consequent arrest, instigated by the driver of the ear, was done in the exercise of the functions in which he was employed. The driver had no instructions to make arrest for the passing of counterfeit money. No inference of such authority can be drawn from the fact of changing money for passengers. He does this act at his own risk and responsibility. The company loses nothing if counterfeit coin is accepted by the driver, as he is charged with it. It has no interest therefore in the arrest of the person attempting to pass counterfeit money, other than that which induces every citizen to make known crime when committed.

It may be, as alleged by plaintiff, that the act was malicious, wilful and tortious, but, as it was not done within the scope of the driver’s employment, the defendant company can not be held responsible in damages. R. C. C. 2320; Williams vs. Palace Car Co., 40 An. 88; 8 Robinson 150; 15 La. 169; 28 An. 6; Cooley on Torts, 536.

The plaintiff was a passenger on defendant’s street car line. He had paid his fare to his destination. He behaved himself with propriety. He was not drunk or disorderly. The complaint against Mm for passing counterfeit money was groundless. He was subjected to insult and defamation by the driver in the presence of other passengers. If not subjected to arrest within the car, he was practically placed under surveillance by the driver from the time he was charged with passing the counterfeit dollar until he arrived at Ms destination. In the case of Williams vs. Palace Car Co., 40 An. 88, we quoted from and. approved of the law as expressed in the case of Goddard vs. R. R. Co., 57 Maine 202. In that case the court said: “The carrier’s obligation is to carry his passenger safely and properly, and to treat him respectfully, and if he entrusts the performance of this duty to his servants, the law holds him responsible for the manner in which they execute the trust. He must not only protect his passengers against the violence and insults of strangers and co-passengers, but a fortiori against the violence and insults of his own servants.” 57 Maine 202.

The same doctrine is laid down in the case of Keenan vs. Lizardi, 5 La. 531, also ref erred to and affirmed incase of Williams vs. Palace Car Co., 40 An. 88; 9 N. Y. Supreme Court, 922.

There was no conductor on defendant’s car. The driver was in exclusive control of the .car, and charged with the safe delivery of the passengers. He was the only servant of the company to whom the passengers could look for protection.

It is difficult to estimate damages to feelings and reputation. If the plaintiff was possessed of any pride, or had any regard for his character,' his humiliation in the presence of others when in defendant’s car must have produced the severest mortification.

Under the facts presented in this ease, it was the peculiar province of the jury to estimate the damages. In the case of Griffin vs. Railroad Company we said: “While we are not bound by the findings of a jury, even on questions of fact or of damages, and do not hesitate to reverse them when manifestly erroneous or excessive, yet we give them the weight to which they are justly entitled, and do not lightly disturb them.”

The claim for damages for the false arrest and malicious prosecution did not go to the jury. Their finding was confined to the insult, abuse and defamation while in defendant’s car.

We see no reason to disturb the amount awarded by the jury.

Judgment affirmed.


author: Breaux, J.

text:
    No. 10,704.
    S. L. James vs. Adoloh Meyer.
    1. The plaintiff was appointed and Qualified as guardian of his minor children in Alabama, where they reside.
    He, as guardian, was recognized hy the court, and a family meeting, at his instance, was called by the court to deliberate upon the disposition at private sale, under Act 25 of 1878, of the only property in this State in which they had an interest.
    The proceedings were homologated, and the sale ordered for a price on terms stated in the deliberations. The court ordered the opening of the wife’s succession and the appointment of a tutor to represent the minors already represented by,the guardian.
    The latter, although objecting, joined in the proceedings.
    A second family meeting was held, and again recommended the sale. The proceedings were homologated.
    The guardian and the tutor joined in petitioning the court for judgment decreeing that a sale grounded on all these proceedings would be legal.
    Proof was made that the guardian had received the proceeds of the sale.
    Held: That the sale was legal.
    2. The irregularity in the allotment of cases must be timely pleaded.
    If not timely made, it can not strike anterior proceedings with absolute nullity.
    PPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Alfred Goldthwaite and Bayne, Denégre & Bayne for Plaintiff and Appellee ■

      1. Article 180 of tlie Constitution of the State provided for one Civil District Court-,, with c< general probate and exclusive civil ¡jurisdiction in all causes.” This clause was adopted for the cogent reasons set forth by this court in the Buisson ease, 33 An. 1425; Peroni vs. Riley, 39 An. 302; State ex rel. Mexican Lottery Company, 41 An. 570. In these cases the allotment of cases is held to be merely directory and not mandatory; and, being merely dwectory, do not destroy or oust the jurisdiction granted by the Constitution to this one and only Civil District Court in the parish of Orleans.
    2. Any irregularity in allotment will not deprive the court of jurisdiction, and render its proceedings null; such irregularities should be corrected on appeal or by direct action in the court rendering the judgment, and such judgment can not be attacked collaterally. State ex rel. Mestayervs. Judge, 36 An. 831; Succession of Keller, 39 An. 581; Limón vs. Riggins, 5 So. Rep. 50; Succession of Byrne, 39 An. 518-55; 30 An. 470-539;.29 An,. 798; 35 An. 591; 32 An. 896; 31 An, 295; 15 An. 27; 24 An. 175; Kent vs. Brown & Leonard, 38 An. 813.
    3. In tbis case the record No. 3206, filed in evidence, shows that Lewis was regularly appointed and qualified as guardian of his minor children in Alabama, where he and they resided; that he was recognized as sueli here in the Civil District Court, and a family meeting of the relatives of the minors was called by that court to deliberate upon the sale of the only piece of property here in which they were interested, in order to remove the proceeds of sale to their domicil. The proceedings were homologated, and sale ordered for a price and on terms stated in the deliberations, and that pursuant thereto the sale was tendered; and after hearing before the court, the succession of his wife was more formally opened here, an inventory was taken, a tutor and under tutor appointed, also a curator ad hoc, a family meeting was convened, sale for partition and removal of proceeds to Alabama recommended, the proceedings were homologated, and sale was made according to the terms named. The proceeds of sale passed to their tutor, who had given bond in Alabama to account for said proceeds. The title was made under the judgment of the court having jurisdiction, and is final as a conclusive settlement of all the questions involved. ‘Wells’ Res Adjudícala and Stare Decisis, p. 4; 16 Oonn. 141; 39 An. 582; 33 An. 1427, and authorities cited above.
    4. The sale of the minors’ property was made avowedly for the purpose of removing the proceeds of sale to the domicil of the minors, as provided for by law. Rev. Stat. 3S38, 3839, 2330, 2331; 4 An. 524; 10 An.' 790. And the agreement (page 11) upon which this suit is based shows that these proceeds were paid over to their father and guardian, and that ho holds the same as the duly qualified guardian in Alabama, where he and they reside, and where they resided when proceedings were first taken in the Civil District Court for the sale of the property. Succession of Hawkins, 35 An. 591; 8 La. 86; 7 La. 547; 31 An. 167; 2 An. 64.
    5. The father, who was guardian of his children in Alabama, where he resided, being a non-resident, could not be appointed their tutor here except by the special permission granted by Act of 1843. Rov. Stat. 3838, 3839, 2330, 2331; C. I\, 946. He did not live here, and was not present in the State except as he casually passed through it. Succession of Foley, 34 An. Í29.
    Ko legal mortgage accrues against the property of afatherwho is theguardian of his children in another State, and no additional security would accrue to his minor children by more formally qualifying here. 2 Rob. 508; 12 An. 89.

      ■6. In tlie opinion in this ease, Act 25 of 1878, relative to sale of minors’ property, is shown to have repealed all conflicting legislation and authorizes the sale as directed by the judgment of the court, on the recommendation of a family meeting previously convened, and a family mqctingmay order and ratify such a sale. A family can ratify that which it could originally ordfer, and ratification results from the receipt of the money by the tutor and holding the same for them at his and their domicil, where he has qualified and given bond, and the subsequent proceedings confirmatory thereof, which are shown by the record. 81 An. 107; 8 An. 328; 2 An. 648,727; C. C. 1794.
    The Civil District Court, Division B, had jurisdiction of the original proceedings No. 3206, filed 28th April, 1881 (page 102 of record), and had jurisdiction of the suit No. 3600, filed June 6,1881 (page 18), and the supplementary proceedings taken under its order, and the judgment and decree of sale should protect the purchaser who in good faith has complied therewith and for many years has undisturbed possession of the property. 39 An. 55; 88 An. 518; 813; 36 An. 831; 32 An. 52-276.

      Farrar, Jonas <& Kruttsehnitt for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

A rehearing was granted in this case at the close of the term of 1889, and it was remanded to be tried anew. James vs. Meyer, 42 An. 1100.

Additional evidence was presented in the lower court, and judgment was rendered for plaintiff, from which the defendant appeals.

I.

Record of case 8206 was filed in evidence. It discloses that the author of the title to plaintiff owned one-half of the property, and his minor children the other.

That he qualified as guardian of his children in Alabama, where he and they resided at the time, and have since continuously resided.

That in compliance with the orders of the Oivil District Courts, in which his authority as a guardian had been recognized, a family meeting of the relatives of the minors was held to deliberate upon the sale of the, only property in which they had an interest, to enable him to transfer the proceeds of the sale to their domicil.

A judgment of homologation was rendered, and the sale was ordered for a price and on terms stated in the deliberations.

The record further shows that the sale was tendered by the guardian to the plaintiff in this case.

He declined to accept a deed to the property.

ii.

Thereupon the guardian brought suit, to which the defendant,' plaintiff in this case, answered, alleging a number of grounds of defence.

The court, for reasons not predicated upon any of the grounds in the defendant’s answer, rendered a judgment, and held that the title tendered by the plaintiff in that case (Lewis personally and as guardian) was not such as the defendant James was bound to accept.-

This judgment was not treated by the court or the plaintiff as definitive. The demand of plaintiff was not absolutely rejected, but further proceedings were ordered, and until they were taken definitive decision upon the title was reserved.

The evidence shows that thereuponand in obedience to the<court’s judgment, the guardian, J. M. Lewis, presented a petition in the pending suit and asked for a family meeting.

On their recommendation a tutor was appointed, and an under tutor.

They qualified.

An inventory was taken and an appraisement had, and they were homologated.

Afterward, at the instance of the tutor, a family meeting was held, and recommended the sale of the property in so far as related to the minor’s interests.

The proees verbal was filed and homolgated.

The guardian then presented a supplemental petition, specifying what had been done, in compliance with the court’s order, and prayed that the defendant James be ordered to comply with the prayer of the petition originally filed.

On issue joined after trial, the defendant James was ordered to ■accept the title.

The judgment was signed with which the defendant afterward ■complied and paid the purchase price.

It is satisfactorily proven that the proceeds of the sale of the property, in notes and cash, were paid.

•III.

James, the purchaser (from Lewis personally and as guardian), who had been in possession since July, 1884, entered into an agreement with the defendant in this case, in July, 1888, to sell him the property.

Defendant Meyer reserved the right to examine the title before-accepting the deed, and the vendor, James, bound himself to make-a valid title.

The plaintiff, a few days after, tendered title to the defendant,, which the latter declined to accept. (Whereupon he brought suit to compel him to accept title.)

In his answer the defendant alleged at length that the succession, of Mrs. Lewis, mother of the minors, was opened in an ordinary suit; that a tutor was appointed here, and this irregularity invalidated the sale, and the minors were not represented in the proceedings.

The case was tried, and judgment rendered in favor of the plaintiff, and it was ordered that the defendant Meyer accept the deed-From this judgment an appeal was taken.

On appeal, on rehearing, this court remanded the case for trial anew.

It was tried, decision was again rendered for plaintiff, from which defendant appeals.

The first question presented on appeal relates to the allotment of' the case and irregularity affecting a judgment rendered by a decision-of the court, to which it has not been allotted.

The second relates to the representation of the minors in the-proceedings.

We will at once take up the second question, for if we should conclude that the minors were represented by their guardian in the proceedings before a tutor was illegally appointed, there will be very little else to decide.

The question of the representation of minors by tutors or guardians, residing with their wards out of the State has received the consideration of this court in a number of decisions.

Under the comity of States prior to the Act 145 of 1843, the appointment of tutors or guardians made at the place of the minor’s, domicil was recognized as valid and binding upon the courts of Louisiana. Delacroix vs. Boisblane, 4 M. 717.

In the matter of the partition of a succession, the court’s dictum, was, that a tutrix who had taken all "steps necessary to give her full authority in relation to the property of her pupils according to the laws of the place of their residence, can represent them here.. Berluehaux vs. Berluchaux, 7 L. 543.

A tutor appointed in another State was recognized without confirmation by any of the tribunals of this State. Chiapella vs. Couprez, 8 L. 84.

After the adoption of Act of 1843, relating to guardians appointed within the limits of the United States, their authority to represent their wards was considered enlarged instead of restricted.

They are authorized to remove the property of the minors out of the State, upon proof that they have authority so to do by the laws of their domicil. Fisk vs. Fisk, 2 An. 77.

Lands situate in this State can not be sold by a foreign tutor or guardian unless he is authorized by the advice of a family meeting. ‘ ‘A foreign tutor has full power to administer the real property of his ward, situated in this State, by an attorney in fact. Bailey vs. Morrison, 4 An. 523.

With reference to the property of their wards foreign guardians may provoke, by and with the advice of a family meeting, and under the sanction of the court, the investment of the funds of their minors, or the sale of their property and the reinvestment of its proceeds. Succession of Lewis, 10 An. 791.

The subject was considered also in the case of Bowen, Guardian, vs. Callaway, Tutor, 26 An. 648.

Authorized by Article 363, C. C.; the guardians appointed by the courts of the domicil, out of the State, are the representatives of their wards, and upon them devolves the duty of controlling their property in this State. Succession of Foley, 34 An. 130.

The decisions uniformly maintain the authority of foreign guardians when duly appointed to represent their wards at the domicil.-

The foreign guardian’s authority were similar in most respects to that of the tutor under our laws. James vs. Meyer, 41 An. 1100.

IV.

The plaintiff, as guardian of his children, presented a petition to the probate court of Talladega county, Ala,, in which he alleged that his children were part owners of a piece of property in Louisiana; he asked for authority to have it sold. He gave bond as required by the court of his domicil to protect the minor’s interest in the proceeds of the sale of the property.

Copies of the proceedings before the Talledega County Probate Court were filed in evidence in the suit and were properly before the court. •

After the family meeting was held in this State, and its deliberations homologated, he instituted suit against James.

On the trial, the District Court did not find the title valid, and thinking that the minors would be more authoritatively represented by the appointment of a local tutor, ordered the appointment of a resident of this State (in which the minors did not reside) to represent them, and die} that which the court said could not be done in the succession of Poley, 34 An. 130.

The subsequent proceedings were required by the court.

Prior to these last proceedings plaintiff might have insisted on a judgment.

They may now be considered cumulative.

They do not have the effect of setting aside the proceedings preceding them.

The last judgment wes preceded by a supplemental petition, in which all the proceedings were pleaded, as well those preceding the appointment of a tutor as those succeeding.

The fact that the minors were represented by their guardian, as well as by a tutor, was urged.

With all these proceedings offered, the court decided contradictorily both with the guardian and the tutor that the purchaser must accept the title.

This was the judgment in the case which was remanded. 41 An. lioo:

On the trial, after it had been remanded, the court heard further evidence and decided that the title is legal.' This is the judgment before us on appeal.

V.

The other ground of nullity alleged, the illegal allotment, does not affect the validity of the proceedings in the name of the guar- ' dian, as they date at a time prior to the alleged illegality.

The question of the illegal allotment of the case to be tried arises subsequently, in proceedings appointing the tutor.

It is not a leading issue in the case and has no importance.

If it has and be still urged, the objection is met by reference to the case of Buisson vs. Lyons, 33 An. 1424; Purvis vs. Riley, 39 An. 305, and State ex rel. Mexican L. vs. Voorhies, ex rel., 41 An. 567, in which it was held that the irregularity in allotment must be timely pleaded.

If the allotment was irregular it can not now divest the jurisdiction or strike the anterior or subsequent proceedings with absolute nullity.

The proceeds of the sale have been received by the guardian, who had authority to receive and grant a discharge. A fact not proven, and which was not made evident by the record in the previous appeal, but which is now undisputed.

It now brings the case clearly within the grasp of the case of Succession of Hawkins, 35 An. 591, in which it was held “ the proceeding, being substantially correct and the proceeds having been paid to the legal representative, the minor was concluded.”

The irregularities heretofore found being cured, we affirm the judgment of the District Court at appellant’s costs.


author: Bermudez, O. J.

text:
    No. 10,686.
    John Trisconi vs. J. M. Winship et al.
    The motives and expediency which prompt the acts of a Board of Directors, done within the lawful scope of their powers and authority, are beyond judicial scrutiny and appreciation.
    Stock holders have the indisputable and uncontrollable right of disposing at their pleasure of their shares in the corporation.
    A majority of the stock holders, whose vote is duly expressed, lias the power to determine that the business of the concern shall be stopped altogether and its affairs liquidated, in the absence of any adverse prohibition or provision in the charter or in the law.
    Members of a Board of Directors, who are necessarily share holders, enjoy, like the other corporators, the right to dispose of their stock, and individually are amenable to no account.
    A Board of Directors which, in furtherance of the vote of the required majority, directs a total cessation of the business of the corporation and a liquidation of its affairs, acts within the sphere of its lawful authority, and is not chargeable with any loss which the measure in its execution may entail on the minority.

      APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Leonard, Marks & Bruen for Plaintiff and Appellant, cited:
    18 How. 331; 104 U. S. 450; 88 Mass. 52; 27 Fed. Rep. 625; 50 Vt. 457; 7 Blatch. 347; 34 Tex. 425; 9 Oonn. 457; 36 N. Y. 200; 34 N. Y. 78; Thompson’s Liability of Stockholders, Sec. 385, 952.

      Bayne, Denigre & Bayne and Thos. J. Semmes & Legendre for Defendants and Appellees:
    1. The cause of action set forth in the petition is a tort and is prescribed by one year. It isa fraudulent breach of trust. 2 Johnson’s Ch. 181; 11 Pargel3; 8 Blatch. 347; 4 Iiuss. 272; 3 Vis. 75, 20; Fed. Rep. 582..
    2. If the value of shares of a corporation is impaired by -wrongful acts of its officers, the injury is to the collective body; individual share holders can not sue the wrong-doer for damages. 1 Morawitz Corp., Seo. SOS; 12 Met. 371; 40 Maine 415; 104 W. S. Rep. 450-482.
    3. There is no law restricting theright of share holders to sell their stock nor the right of persons to buy, even though the object be to acquire control of the corporation; nor is there any law to control the action of the majority in binding the minority. 115 U. S. 597; 10 Am. and Eng. Corp. Cases, 265.
    4. There has been no citation of the American Cotton Oil Trust. 28 An. 625; 25 An. 464 ; 30 An. 58; 95 U. S. 720.
    5. If the Oil Trust is to bo regarded as a partnership having a domicil in New York, it can not b'o suedliere by service on one of its members. U. S. vs. Tel- . ephone Co., 20 Fed. Rep. 19-32.
    6. If the holders of trust certificates are share holders in the trust they can not be treated as partners. Lambeth vs. Vanter, 6 Rob. 128.
    7. These certificates, however, are not shares of stock. The holding of such certieates does not make the holder either a a partner or a share holder in a corporation, Morawitz Corp., Sec. 163-4, 5 Rob. 128.
    7. The validity of the certificates is to bo determined by the law of New York, where they were issued.
    6. No damage has been shown by the plaintiff. No law requires share holders of a corporation to continue a losing business, when the charterprovides for dissolution of a meeting of stock holders.
   The opinion ol the court was delivered by

Bermudez, O. J.

The pith of the elaborate incriminating petition in this case is that the plaintiff, as a stock holder of the Bienville Oil Works, has, in consequence of ill practices, in dereliction and violation of duty, of the directors of that corporation, aided and abetted therein by the representatives of an oil trust organization, sustained such grave injury that his shares (25) have become value - less.

He therefore prays for judgment against those directors and representatives in solido for the loss inflicted, namely, at least the value •of the stock at par, viz: $2500.

The petition was accompanied by interrogatories on facts and articles, designed to elicit from the parties sued significant matters in support of the averments. •

The defences set up are: That the claim is one sounding in damages arising ex delicto, and, as such, is barred by the prescription of one year; that if injury was occasioned as charged, it was sustained by the mass of the stock holders alike and by no one in particular, as distinguishable from that done to the others, and the plaintiff has no right of action; that the facts alleged are not true and not proved, and, if so, that the directors, in their individual capacity, had the right to act as they did; that, officially, they merely executed the will of a majority of the stock holders, legally expressed, in suspending the further operating or working of the company, and disposing of its assets and discharging its liabilities by a liquidation of its affairs.

On behalf of the parties who are asked to be cited, as representing the oil trust, it is urged that they do not represent that organization, which has therefore not been reached by the process of the court; that, as holders of certificates issued by the concern, they can not, under any circumstance, be held responsible, as is attempted to be done.

In an elaborate and well prepared opinion the industrious and able District Judge has unfolded the condition of the affairs of the Bienville Oil Works Company from their incipiency down to their discomfiture. He has passed on the merits of the case as to the directors; and, as concerns the alleged representatives of the trust, he has held that it was not in court in this litigation, and declined to entertain the action against it, concluding that the certificate holders would not be made liable, as was sought.

From the judgment thus rendered the plaintiff has appealed.

The gravamen of the complaint seems to be that the directors of the Bienville Oil Works Company, by a secret and fraudulent combination and bargain with the American Oil Trust, an alleged unlawful organization, transferred their stock in the company to the latter to subserve its own interests, and in disregard of their obligations to the other stock holders and in violation of their rights, have thus wrecked the company, thereby destroying the value of its stock other than that held by the trust.

The following are the salient facts of the case:

In 1871 the Bienville Oil Works Company was organized in New Orleans. For some time it was in a flourishing condition and did prosperous business, which however in the course of time finally declined, so that the stock was worth sixty only on the 1st of July, 1886, when some days later, a liquidation having been decided upon, it sank to little or nothing.

In 1884 certain parties had created an American Cotton Oil Trust, the purpose of which was the acquisition of oil mills and refineries.

Certificates of stock, for upward 9f forty millions, were issued, as. a means to acquire the shares of stock holders in the oil factories in contemplation.

By using the certificates in that manner, parties charged with representing the trust succeeded in acquiring a majority of the stock of the Bienville Oil Works Company, the stock remaining in their names, or in that of appointed persons and not put in that of the trust.

At this juncture, the stock holders, by the required majority, considering that it was their own interest as well as that of the other stock holders who would not concur, to suspend absolutely, or stop permanently, the working of the mill, and to liquidate its affairs, did so ordain; and the directors acted in furtherance of that decision, the result being that the realized assets proved barely sufficient to meet the debts of the defunct corporation.

Indisputably, the stock holders of the Bienville Oil Works Company, including the directors, who necessarily were such, had the right to dispose, at their pleasure, of the shares which they owned in the corporation.

There exists no law which requires that a mercantile organization shall continue in business, however ruinous, when the majority of the stock holders, as fixed by the charter, or by the'law when not so fixed, deem that it is their interest to go no further and to wind up its affairs.

Section 687 of the Revised Statutes expressly authorizes three-, fourths of the stock holders of a corporation to dissolve it altogether..

The power and rights of such majority in this respect is placed beyond judicial supervision and control.

The discretion is absolute in them, and the minority have no occasion legally to complain. By their accepting the terms of the charter and the laws under which the same was framed and the body organized, the award of the majority becomes that of a power of the choice and selection of the stock holders, to which the minority must submit.

In the absence of any express statutory prohibition, a majority of the stock holders may wind it up, for reasons by them deemed sufficient, the moment that they act within the scope of their legal attributions. 1 Morawetz on Corp., 413, 474; Oglesby vs. Attrill, 105 U. S. 610; Bailey vs. Borkenhead L. & C. J. R. R. Oo., 12 Bear 433.

The action of the majority in the instant case being lawful, as. done with legal sanction and authority, this court is powerless to inquire into and determine of its expediency or the sufficiency of the • motives which prompted and dictated it without transforming itself' into the corporation and acting as its board of administrators, which it surely can not do.

No doubt the shares owned by the plaintiff and purchased at a premium became depreciated and went down gradually, so as finally to be reduced to nothing, but' for this he has no one to blame but himself.

He could have done, as the other stock holders did — exchanged them for certificates; but he has not chosen so to do. Had he done so, he would have realized the fabulous profits which he says they have, and which he regrets not having reaped.

If he knew of the opportunity, he should have availed himself of it; and if knew not of it, it is his own misfortune. He should have-been more vigilant, and not slept on his chances.

Surely, purchasers of stock are under no obligation to admonish or give notice in advance of their intention to invest, for this would, be detrimental to their interest.

The evidence establishes that, after the transaction had apparently-terminated, the plaintiff proposed to sell his stock, and was offeredt thirty per share, which he declined, asking for more.

Had he accepted, he would not be to-day an unfortunate and improvident loser, whose condition can not be improved.

This view of the case dispenses us from considering the pleas of prescription and no right of action set up by the defendants.

Judgment affirmed.