author: McEnery, J. Bermudez, C. J.

text:
    No. 10,314.
    A. B. & B. Way vs. Meyer Levy et als., and E. V. Batchelor et al. vs. A. T. Way et als.
    CONSOLIDATED.
    The natural tutor cannot relievo himself from responsibility to the minor by omitting to take the oath before letters of tutorship have been issued to him.
    Whore an act of sale reserving the special mortgage and vendor’s privilege was passed and completed on Saturday, at the hour of the legal closing of the office of the Recorder of Mortgages, said act was filed by said recorder for inscription, and the inscription was made on the Monday morning following, without delay, held that this inscription preserved the vendor’s privilege as against iirior recorded mortgages, as it was seasonably made.
    While jurisprudence establishes that the mere deposit, with a parish recorder, of an act of transfer, affects third persons, it was never settled, that, an act by which a vendor’s privi* lege and a special mortgage are retained on real estate sold to secure payment of tlie price on credit, deposited with and filed and indorsed by tlie parish recorder, on tlie day of its execution and transcribed on the first legal day following, does not preserve that security, for want of an actual registry, on the day of the execution of the act.
    Such act, when thus deposited, filed and indorsed, produces all the effects against third parties, which would have arisen, had it been transcribed on the mortgage register, on the very day of its execution.
    When deposited, it becomes part of the archives of the office of the parish recorder, subject to public inspection, together with the other public registry boohs and the date of the filing, indorsement and deposit fixes the date of the transcription made on the current register, on the first legal day following, without unnecessary delay. R. C. O. 2252, 2284, 3391.
    APPEAL from the Fifteenth District Court, Parish of Pointe Coupee. Semple, J.

      O. O. Provosty for A. B. & B. Way, Plaintiffs and Appellees.

      Thos. P[. Reeves for Batchelor, tutrix, and Stribling, tutor. Appellants.

      liobt. Montgomery for Meyer Levy, Appellees.
   The opinion of the Court was delivered by

McEnery, J.

Plaintiffs, A. B. & B. Way, obtained a judgment against their father, A. T. Way, with recognition of their legal mortgage, for over $2700, to date from the 17th day of June, 1870. This legal mortgage was duly recorded in the office of the Recorder of Mortgages for the Parish of Pointe Coupée. After its recordation in the same year, on the 3d day of December, the father, A. T. Way, purchased a tract of land, in the Parish of Pointe Coupée, from Emma and Rebecca Shannon.

A special mortgage and the vendor’s privilege were retained to secure the deferred payment of the purchase price.

In 1876 the mortgage was foreclosed and the land purchased by John Yoist, who afterward sold it to the defendant, Levy.

The plaintiffs, in an hypothecary action, now attempt to subject this property to their legal mortgage, because the act of sale, mortgage and vendor’s privilege were not recorded on the day and date of the act.

The act was concluded on Saturday evening, late at the close of office hours, and was recorded without delay on Mon day morning.

Defendants, in a separate suit, which is consolidated with this, allege that A. .T Way was never tutor, and that there is no legal mortgage if he was the duly qualified tutor, as the judgment against him was collusively and fraudulently obtained, and tlie same allegations are made with reference to tlie suit of tlie mother of plaintiffs against their father for separation of property, which amount is the basis of the legal mortgage asserted by plaintiff.

It is alleged that A. T. Way took no oath as tutor. He took the oath before letters of tutorship issued to him, and after they were issued he took no oath or procured the appointment of an under tutor.

The tutorship belonged, of right, to the father. C. C..250. Andas such, without being confirmed, it was his duty to have an inventory made and the minors’ mortgage inscribed. As a stranger to the tutorship, as an intermeddler a trust or legal mortgage would exist against him. He would have been responsible to the minors if he had refused the tutorship and neglected to record their mortgage, or to preserve their rights. C. C. 268.

He can not, by omissions, relieve himself from responsibility. Gonsoulin vs. Migues, 5 Ann. 565.

We have carefully examined tlie records in the suits of A. and B. Way vs. Their Father, and Amanda Boatner vs. Her Husband, A. T. Way. We have been unable to find any evidences of fraud or collusion, and the judgments in each case-seem to have been rendered upon sufficient evidence.

The question now to .be determined is whether or not the minors’ legal mortage affects the property acquired by A. T. Way on the 3d December, 1870.

There are numerous decisions in our reports determining the question of the rank of privileges and mortgages resulting from registry.

We have attentively examined these cases, and we have found in each, different facts and circumstances attending this.

In the Sixth Annual, page 162, White vs. Bank, there was no mortgage stipulated, as is usually done in acts of sale on credit, and the act was not inscribed in the mortgage book, but in the book of conveyances. There was, in fact, no registry ef the mortgage.

Iá Porche vs. Le Blanc, 12 Ann. 778, the vendor’s privilege was contracted in the Pa; ish of Assumption, in 1848, and recorded three years thereafter in the parishes where the properties were situated.

In Lefose vs. Carom, 7 Ann. 65, the facts were identical with those in White vs. Bank.

In succession of O’Lougliline, 18 Ann. 142, the question submitted and determined was whether the. vendor’s privilege had been lost and the mortgage only renewed because the vendor had failed to record the privilege within six days. <

In Lombas vs. Collet, 20 Ann. p. 79, tlie act of sale was passed 10th March, 1858, and recorded 28th February, 1859 — nearly one year thereafter.

In Twenty-eighth Annual, page 305, Bird vs. Lobdell, the contest was between a special mortgage creditor and furnisher of supplies. From the meagre facts stated in the opinion it does not appear that the privilege was deposited or filed with the recorder on the day of the date of the contract.

In the case of MacMillen vs. Archinard, 24 Ann. 610, the detailed statement of items of mechanics’ lien was recorded on 23th September, 1879. The question was whether it had effect from the date the contractor commenced work, July, 1868, or only from the date of its recordation.

In Twenty-sixth Annua), page 80, Lapene vs. Meezel, there were oppositions filed to the proceeds of the sale of a lot of molasses and sugar. The two privileges which were asserted were recorded at different dates and there was a contest between laborers and merchants for priority, as to which should have preference.

In Twenty-seventh Annual, page 290, Gay vs. Borard, the point decided was whether a privilege, ranked a mortgage recorded subsequently and after its date, not recorded on the day it was contracted, had any effect at all.

In Thirty-fourth Annual, Succession Clay, it was decided that a vendor’s privilege will have effect and be enforced, although not recorded on the day it was contracted, if no other creditor has acquired rights on the property affected thereby.

In Bank vs. Forbes, 27 Ann. 245, E. J. Gay & Co. were the furnishers of supplies for the year 1873, and an open account for that year was filed and recorded only in January, 1873. The mortgage of the bank was recorded in 1868.

In Morrison vs. Citizens’ Bank, same volume, page 401, the vendor’s privilege was contracted in New Orleans, in 1856, forwarded to Pointe Coupee, where it remained among notarial acts and was finally recorded in the mortgage book in June, 1808.

In the Twenty-third Annual, page 286, Foley vs. Hagan, the facts are not stated as to the time of recording the privileges and mortgages.

In Prager vs. Recorder, same volume, page 534, the question was whether a mortgage recorded subsequent to the recording of the privilege would not prime it because it was not recorded on the day it was entered into.

In the Slocomb case, 30 Ann. p. 833, the vendor’s privilege was recorded in the hook of conveyances, and not in the hook of mortgages.

The cases above referred to are cited in case of Gianovitch vs. Gallaugher, 36 Ann. 272, as authority for the ruling in that case that the act must be recorded seasonably. In that case the act of mortgage was recorded five days before the registry of the mortgage over which it took preference.

There are cases in which it is indicated if the delay in recording on tiie day the privilege was entered into - can be satisfactorily explained, the delay will be excused and the privilege or mortgage will take effect from the day on which it ought to have been recorded.

In Crea vs. Sowles, 2 Ann. 598, the registry of the act of sale was made after an attachment had issued against the property. The court said: “In this case, as in that of Hagan vs. Williams (2 La. 122), the purchaser has failed to account satisfactorily for the delay in making the registry.”

In Payne & Co. vs. Pavey, 29 Ann. 116, an hypothecary action was instituted to enforce a judicial mortgage against certain lands in the possession of the defendant, resulting from the registry, on 27th October, 1874, of a judgment obtained against the vendor of the defendant. The defendant purchased the property on 18th January, 1879, and the act was deposited in the recorder’s office in the Parish of Avoyelles, on 8th February, 1872, and the act was indorsed and filed on the same day. It was recorded 18th of September, 1876, after the registration of the plaintiff’s judgment.

The court said: “If there was fault, nothing in the evidence shows it to have been that of the defendant’s.”

In Rochereau & Co. vs. Colomb, 27 Ann. 337, the facts were that Kenner sold to Celomb immovable property, retaining the usual mortgage and vendor’s privilege. The act was recorded in the Parish of St. James, ten days after its execution. The court said: “The only important question in this case is, could a judicial mortgage, resulting from the recordation of a judgment against the vendee, attach to the property to the prejudice of the vendor’s privilege and mortgage to secure the price in consequence of the delay in recording the mortgage.” * * “If the delay in recording the act in St. James Parish coidd defeat the vendor’s privilege and mortgage, the necessary delay for recording the mortgage, after the agreement to sell, or after the signing of the act of sale, would also defeat the vendor’s privilege.”

And again, in the case of Jumonville vs. Sharp, 27 Ann. 461, the plaintiff had a judgment for a large amount against her husband, and she had to secure it a legal mortgage. The property against which she attempted to enforce her mortgage was acquired by her husband subsequent to tiie date of her legal mortgage. In the sale to her husband, Vivos,’the vendor’s privilege and special mortgage were revived. The act of sale to Vives was not recorded until 1866, Jive years after the purchase. The property was seized and sold to pay part of the price secured by the mortgage and vendor’s privilege. It ivas held that the delay to record the act of sale and vendor’s privilege could not defeat the vendor’s privilege.

The law does not require impossibilities. Article 3393, C. C., requires the recorders to record and register the acts in the order of their dates, without leaving any intervals or blank spaces between them. Only one person can, therefore, record these acts at one time and in one book. It often happens that more acts are passed in one day than can be recorded on the day they are passed. It would be a physical impossibility, at times, to record all the acts passed on one day. All that can be required is that the act be recorded without delay, in its order, in the proper book, and in the language used in Gianovitch vs. Gallaugher, 36 Ann. 272; that it be recorded “ seasonably.”

■In the instant case the act was completed at the closing hour of the office, fixed by law. The next day was Sunday, and it was recorded on Monday morning, without delay, and seasonably.

In the country parishes the recorders are ex-officio notaries. After the passing of 'acts it is their duty to commence to record them without delay.

Suppose an act should be finished, say at 3 o’clock, and at 4, the legal hour of closing- his office, the recorder had only recorded a part of the act; could a prior recorded mortgage take precedent of the act containing the vendor’s privilege?

In this case the act liad been recorded, and the fees for recording-paid. The recorder had commenced his duties in preparing for its recordation, by filing- the act, when interrupted by the closing hour of his official duties. He resumed his work of recordation as soon as practicable. The defendants were certainly in no default, nor was the officer. The act was filed and deposited on the day it was made, and the inscription made without delay, continuing-, with legal interruption, from the closing hour of one business day to the beginning of the next succeeding business hour. The indorsement is a part of the work, preliminary to the inscription, because the law requires it.

It is, therefore, ordered and adjudged that the judgment appealed from be amended so as to reinstate the full amount of the minors’ mortgage — $2721 98 — and in other respects it be affirmed, plaintiffs and defendants to pay costs, equally, of the appeal.

On Application por Rehearing.

Bermudez, C. J.

It would be doing violence to the views which we have expressed to say that we have held that the depositing of the act' with the recorder and the filing of it by him, operates a recordation of it, binding on third parties, without any subsequent registry.

A scanning of all the precedents having a bearing on the question, particularly those relied upon by the litigants, enables us to state, that, in none of the rulings heretofore made, the facts considered were analogous with those presented in this controversy.

It is perfectly true that, in many of the cases, acts had been first deposited with the recorder which were subsequently transcribed on the register, and that it has been held, that, as concerns the conveyance of real estate, the mere depositing of the act of transfer with the recorder, was equivalent to a recordation of it, by him, in the conveyance book and would affect third parties,, who, from the mere deposit, must be deemed as notified of the transfer.

It is likewise true that it has been decided that such is not the case, when the encumbrance of real estate by privileges or mortgages is the object of the act, and that not only must the deed be deposited with, but also recorded by, the recorder in the manner and within the time pre.seribed by law to preserve the encumbrance from the effect of previous registries, particularly as relates to the vendor’s privilege, which the law requires not only to be recorded, but also to be thus made patent, within a fixed delay.

In no case presented and passed upon, does it appear that the act containing the encumbrance, privilege or mortgage, or both, was deposited with the recorder, on the very day of its execution, just about the time fixed by law for closing his office, filed and endorsed by him on that day and recorded in full on the first legal day following.

In all those cases, one or more days on which the act would have been recorded in the mortgage book, had elapsed without any recordation having been made.

In the present litigation, it appears that the act of sale to Way, in which the vendor’s privilege and a special mortgage had been retained to secure payment of the price, on time, was executed before a notary public, and ivas completed some short time before the closing of the recorder’s office on Saturday, the 3rd of December, 1870 ; that it was, on being handed to him, then filed and endorsed on that date; also, that it was on that day, recorded in the conveyance book; that at or after 4 o’clock, at which hour the recorder was authorized to close his office, R. S. 3076, he and deputy left; that on the Monday following, December 5th, 1870, Sunday, a dies non-, having intervened, the act was recorded in the mortgage book.

The question now at issue is not so much: whether the deposit an d filing of the act on December 3, 1870, constitute «"recordation, without any subsequent inscription, as it is simply : whether the registry made on Monday, the 5th of December, 1870, the day immediately following the Saturday, when the filing and endorsement of the act and its transcription took place in the conveyance book, is or not to be considered as having been made on Saturday, the 3rd of December, 1870, and as affecting third persons from that day.

The true object of registry laws concerning real estate is to notify third parties that the property has been transferred or encumbered.

Hence, parties who have an interest in ascertaining the status of real estate in those respects, have the right of inspecting, during office hours, the archives of the office in which the law requires that such transfers and encumbrances be made public, and are bound by the contents of those archives if they are such as convey with precision and all sufficient data, knowledge of a transfer, or encumbrance, or both. The converse of the proposition is likewise time. R. S. 3082; R. C. C. 3391, § 2.

Now, let us examine and see whether any third party entering, for the purpose of an inspection of the archives, the office of the recorder could have on Saturday, the 3rd of December, 1870, ascertained from them, just before the closing of the office, the status of the property in question in point of transfer and of encumbrance.

It cannot bo, nor is it, for an instant denied, that the conveyance could have been known, for the act of sale, it is shown, was recorded in the proper conveyance book on the same day that it was received, filed and endorsed.

It is clear that, on that day, at the closing of the office, the act had not been inscribed at all in the mortgage book.

Under that condition of things can it be said that any third party could not then have ascertained the encumbrance as fully as if the act had been inscribed in the mortgage book 9

The laws in force at the time of those occurrances are to be found in R. S. 2501, 2502, 3080, 3081, and in the R. O. C., at Articles 2251, 2252, 2254.

It is made the duty of all notaries in the State, out of New Orleans, to deposit in the office of the parish recorder all acts passed before them, except such as were executed under judicial authority.

The acts thus deposited in the office of the parish recorder form part of the archives of his office and are to be immediately recorded, conveyance acts in the conveyance book, and encumbrance or mortgage acts in the mortgage book.

The recorder must indorse on the back of each act deposited with him, the time it was received- by him, and to record the same without delay in the order in which they were received, and the acts shall have effect against third persons from the date of their being deposited in his office.

The law requires from parish recorders, that they shall set down the title of the different acts transmitted to them to be recorded, as well as the date of such transmission, for- the purpose of establishing with exactness the time thereof. R. C. C. 3391.

Now, it appears that the notary before whom the act to Way was passed, deposited it in the recorder’s office on the very day of its execution, and that it was then and there filed and indorsed. .

Under the provisions of law referred to, the moment the act was thus deposited, filed and indorsed, it became part of the archives of the office, R. C. C. 2252, and, as it concerned immovable property, it then affected third persons, R. C. C. 2264.

The law gave it that effect, for the reason, that any person, entering the office of the recorder for information, could have ascertained from its archives, part of which this act constituted, by inspection of the same, that the property convoyed had not been paid for in cash, but that a privilege and mortgage had been retained on it to secure the payment of the price on credit and tliat the same encumbered it.

It irresistibly occurs and forces itself on our mind, that, on inspection and consideration of the laws which require a parish recorder to indorse on each act deposited with him the time when it was received by him, R. C. C. 2254, R. S. 3081, it-was for the purpose of establishing with exactness the time of the transmission, R. C. C. 3391, in order to settle with certainty the date to be given to the- subsequent recordation of the act on the current register, whether the conveyance or the mortgage book.

It could have no other object, in exacting that formality. Otherwise, why would the ceremony have been required?

Under the circumstances, we conclude that, as the act to Way was deposited with, filed and indorsed by, the recorder on the day of its execution, and transcribed in the mortgage book on the following legal day, without unnecessary delay, the act must be deemed as having been recorded on the day on which it was deposited, filed and indorsed, and consequently that the privilege of vendor and the special mortgage, secured by it have, from that date, affected third parties and are not impaired by anterior registries.

Rehearing refused.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 10,273.
    Charles Macready and Nicholas Burke, Executors, vs. Charles H. Schenck, et als.
    A bond furnished by a surviving partner is a legal bond, required under a provision of law.
    Suit may be instituted against the sureties on tlio bond of such partner, appointed to liquidate the affairs of tlio concern, without previously talcing steps to enforce payment by the principal. Such condition pi eocdont is not exacted in such case.
    The appointment of a liquidator to settle the affairs of a partnership, in which the succession of a deceased partner is interested, producos legal effects, although annulled on appeal.
    The terms and conditions of a law, in furtherance of which a bond is taken, must be read into the bond.
    A bond furnished by a liquidator to the judge of the court in which the succession of a deceased partner is opened, must be read as given in favor of tlie succession representative, who has a right of action upon it. in case oí' breach, against the surety therein.
    Sureties cannot escape responsibility when the bond signed by them has served to obtain possession of property, not subsequently, on duo demand, properly accounted for. Signing suoli bond is not an idle or vain formality.*
    A judgment against a principal on a legal bond, is prima facie evidence against the surety therein, to show broach of contract and liability 5 but adverse proof is admissible.
    The position of a liquidator of a partnership, in which the succession of a deceased partner is concerned, can be assimilated to that of a succession representative, whose acts are valid, although, on appeal, the appointment is rescinded.
    Although the appointment may not protect the liquidator, against tlio commission by him of illegal and fraudulent acts, it may shield third persons and among these the sureties, when they are not amenable to the charge of conspiracy.
    Sureties on a legal bond are responsible only lor the assets which came to the possession of the principal in his official capacity, or for tlio value of the same, after proper deductions.
    Whatever may bo the authority of an appellate court to investigate and adjudicate upon intricate matters of fact, not considered and passed upon by the court of first instance, it will not, as a duty, undertake an onerous examination of the same, in all cases, but will, in its discretion, remand the controversy for further proceedings.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      T. J. Semmes di Legendre; Thos. Gilmore ds Sons and J. Ad. Hosier for Plaintiffs and Appellants:
    1. Article 3066 of the Civil Code only applies to sureties 011 the bonds of curators, administrators, executors, tutors and syndics; it does not apply to sureties on the bonds of liquidators of partnerships, because not named in the exceptional legislation, and such bonds are ordinary civil obligations. Walmsley vs. Mendelson, 31 Ann. 157.

      2. Although the liquidators houd in this case is made payable to the judges of the Civil District Court, when it should have been in favor of the plaintiffs as executors, the mistake does not affect the right of plaintiffs to sue on the bond. 15 Ann. 465; 32 Anu. 384; 106 U. S. 152; 7 Exclieq. 378; 64 Calif. 213; 2 <T, J. Marshall, 472; 8 Shiply, 468 ; 3 Dev. (N. O.) 86 ; 4 Dev. 268; 6 N. H. 88.
    3. Although this court decided, in 35 Aim. 600, that Kioto was not legally appointed liquidator. neither he nor his sureties can raise the objection. Slawson vs. Kerr, 29 Ann. 295; 7 Ann. 121: 2 La. 42; 35 Ann. 521: 40 Ann. 237; 9 Grattan, 321; 50 Ala. 315.
    4. The surety cannot plead any defence, inherent in the obligation, which the principal cannot i>lead. 10 Ann. 385; 10 Ann. 666; 39 Ann. 293.
    5. Hence the. surety cannot set up the unconstitutionality of the. law under which the bond was given. 6 N, 8. 123; 3 N. 8. 595; 4 N. S. 21; 5 La. 500; 1 (Jill, 302; 30 N. O'. L. 73.
    6. The surety on the bond of a trustee, irregularly appointed by the Court of Chancery, cannot question, in a suit on the bond, the validity of his appointment. The court being competent to make sucli appointment, its exercise of the power cannot he questioned collaterally. The trustee got possession of the trust estate under the proceeding by color of ■which he claimed to bo trustee, and his surety voluntarily undertook that the trustee should faithfully administer the trust. Neither the trustee nor bis surety can be permitted to deny his liability as such. People vs. Norton, 9 N. Y. 176.

      ]?. TÜ. Théarñ & 8ons ; A. Tj. Tissot; W. 8. Benedict and Buck, JDinlcelspiel <& Hart for Defendants and Appellees:
    vSecurity-given under an order of court’is judicial. 3 Aim. 42; C. C. Arts. 3.064,3035: Potliier, Obligations, Yol. 1, Part II, Chapter YI, Sec. 2; Zacharim, Droit Civil, Yol. 3, Sect. 425 ; Marcado & Pont, Yol. IX, Title XIY, page 1.
    A surviving commercial partner, -who is appointed by the court to liquidate and administer upon the share of a deceased partner in the partnership assets, is not properly a liquidator, but an administrator. C. C. Art. 1138 et seq.; 6 P. 13.
    Hence, no recourse can be liad against the surety on his bond, until the necessary stops have been taken to enforce payment against the principal. C. C. Art. 3066; 35 Ann. 391; 2 Ann. 1013 ; 1 Ann. 125; 20 Ann. 191.
    The rule that as one chooses to hind himself he shall remain bound, may bo true in more conventional obligations, but the effect of judicial bonds must be tested by the law directing them to be taken. That which is superadded must be rejected, and that which is omitted supplied. And it is settled by our jurisprudence that where there is no law authorizing the execution of a judicial bond, no force can be given to it. The order of the judge requiring the bond, gives no validity to it, whore there is no law justifying the order. Hennen’s Digest, verbo Obligations YII (a) 4) No. 6; 12 Ann. 68; 7 Ann. 110; 4 Ann. 392; 2L.38S; 9 P.535; 16 L. 174; 19 Ann.142; 6 Ann. 700, 744; 12 Ann. 224, 349; 13 4 Ann. 288; 7 Ann. 570; 28 Ann. 244 ; 27 Ann. 557; 22 Ann. 536; 23 Ann. 222; 25 Ann. 218; 10 Ann. 124; 29 Ann. 297.
    If the obligation sued on, although void as a judicial bond, be hold valid as .a conventional bond, voluntarily executed, plaintiffs cannot recovor, because

      a. They are not privies to the bond;
    b. The obligation sued on contains no stipulation %>our autrui of which they can avail themselves. Por a valid stipulation it is necessary that the contract be commutative or an onerous donation, and that the obligees should have a personal interest in the enforcement of the condition. Those requirements are not found in the contract of suretyship sued on. G. O. Art. 1890, 1768, 1765; Troplong, verbo Cautionuement et Transaction, page 18, Sec. 18, and page 123, Sect. 128; Laurent, Yol. 28, Sec. 126, .page 132; Toullier-Duvergier, Yol. Ill, Title III, Sec. 3, .par. 153, page 92; Laurent, Yol. XY, Sec. 558 and 553, page 637 and 629.

      c. Tlie inducement of tlie sureties to sign the' lioud was tlie supposed existence of a valid order appointing tlieir principal liquidator and requiring liim to furnisli security. • With the decision that there was no such order, this consideration tailed. O. C. Art. 189G, 3035, 8036; 7 Ann. 539; 10 R. 543; 10 L. 328; 35 Ann. 596; 37 Ann. 701 : 39 Ann. 298.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a suit by tlie executors of Margaret Haugliery against tlie defendants as sureties on tlie bond furnished by Bernard Klotz as liquidator of tlie partnership once existing between him and her.

Tlie defendants filed exceptions which, on being overruled, were followed by au answer.

After hearing evidence and argument, the District Court, however, sustained the exceptions, and without passing on the merits, rendered judgment for the defendants, from which the plaintiffs appeal.

The record discloses the following salient facts:

Margaret Haugliery and Bernard Klotz were partners engaged in the bakery business. By tbe articles, it was provided that in the event of the death of either, the survivor would wind up the partnership affairs within six months.

Margaret Haugliery died leaving a will appointing the plaintiffs the executors thereof.

At the expiration of the six months following her death, Klotz, who had retained possession of the partnership property, had himself appointed contradictorily with the objecting executors, liquidator of tlie concern, giving bond for $40,000, with the defendants as sureties therein.

On appeal by the executors tlie appointment was vacated, 35 Ann. 596.

In a cross suit, thereafter brought; judgment was • rendered by this Court against Klotz, as surviving partner, for $30,717 25, 39 Ann. 639.

This judgment remaining unsatisfied notwithstanding due demand, the executors instituted the present action against tlie, sureties on the bond, to hold them responsible for Klotz’ maladministration of tlie property of tlie concern while he acted as liquidator, and his failure to account and indemnify.

Viewing the bond either as a judicial or as a conventional obligation, tbe defendants contend that they are in no way liable.

They say that, if it be a judicial bond, no recovery can be bad on it from them, until after execution against their principal has been returned unsatisfied, and that, even then, tlie bond is a nullity, because there was no law authorizing its exaction and execution.

They further insist that were the bond not considered as a judicial bond, but. as a conventional bond, it discloses no privity between the plaintiffs and themselves; that its consideration failed and that no breach of its condition was shown.

T.

The defendants’ contention that the bond sued on is strictly and exclusively a judicial bond, is not well founded.

Judicial sureties are such as are, furnished under judicial direction, in the absence of any law.

In the case of Whitehead, 3 Ann. 42, the surety on a bond given under an order of court made in the exercise of equity powers, for the faithful discharge of the duties of one appointed receiver of a partnership, in which no succession was involved, — was'properly declared tobe judicial, for, there was no law requiring such surety.

In the case of Walmsley, 31 Ann. 156, in which the surviving- partner, appointed to liquidate the partnership once existing- with the deceased, had furnished bond, the court said that the bond was an ordinary obligation, on which suit could be brought both against principal and surety.

The court could more appropriately have qualified the bond an ordinary legal bond, for there was law authorizing its execution. A legal bond is that which is required by law. The Code discriminates betweenpersons bound by law and persons bound by judgment to give a surety. R. C. C. 3064.

In the present controversy, the bond furnished by Klotz as liquidating-partner, was given in furtherance of a special provision of law, which declares that the surviving partner appointed to liquidate a partnership between him and a deceased partner, is bound to give security to the amount of one-fourth over and above the estimated value of the portion coming to the deceased from the partnership property, according to the inventory. R. C. C. 1139.

It is curious that the law has established a sort of parallel between sureties and mortgages. As there exist conventional, legal and judicial sureties, so there' are conventional, legal and judicial mortgages, arising from contract, law or judgment, producing kindred effects.

Nevertheless it would seem that the Code treats of legal and judicial sureties as though they belonged to the same class, and that the term judicial has been applied to sureties furnished pursuant, either to law or to judicial decree.

Be this as it may, however, it cannot be perceived, if the bond sued on be judicial in character and the sureties therein judicial sureties, to what extent the distinction can shield the defendants, if they are liable otherwise.

II.

The defendants further contend that the plaintiffs have no right of action, for the reason, that it is neither alleged nor proved, that necessary steps have been taken to enforce payment of the judgment, against Klotz, their principal, and in justification, they point to Article 3066 E. C. C.

True, it provides that no suit shall be instituted against any surety on any appeal bond, or bond of any administrator, tutor, curator, executor or syndic, until such steps have been taken.

It is admitted that no execution has issued against Klotz, but. the record shows demand for payment and failure by him to pay.

Traced to its origin, the article is found to be in part, an Act of 1842, No. 120, which provided that the courts of probate should have exclusive cognizance of all suits or actions against sureties on the bonds of appeal and all others which they are bound by law to receive, or exact from appellants and administrators, tutors, curator's and testamentary executors generally, and no suit shall bo instituted against the surety, until the necessary steps have been taken to enforce payment against the principal.

The act was considered deficient and was amended in 1855, so as to embrace besides, sureties on bonds furnished by syndics and sureties on any appeal bond. Act 300, Sec. 5.

By the amendment, the word tutor, found in the act of 1842, was inadvertently left out; but in 1866, the omission was supplied. No. 22, p. 42.

It is apparent that, in legislative intent, the sureties proposed to be protected were .those serving on bonds furnished by succession and bankruptcy representatives, and by persons representing minors or interdicts or absentees, and that it was not designed that the sureties of liquidators of partnerships, in which successions were concerned, should be included.

From the circums’tance that Articles E. C. C. 1140, 2, 4, which relate to surviving partners term his gestión or management of the affairs, an ■“ acl/mmistration'’' it cannot be inferred that this official must be viewed as a succession representative, and that his sureties are therefore embraced within those denominated in the article.

Their duties are essentially distrinct and independent, even antagonistical.

It is a staring fact tliat a liquidator lias-no mandate, to administer the succession of the deceased partner and pay its creditors. He gives a bond, not in favor of the court, but in favor of the succession representative, when an appointment is legally made. In such cases, there necessarily must be both a liquidator and a succession representative,— the former to manage the concern in which the succession has an interest and account to the succession representative, the latter to administer the succession in which the liquidator has no direct interest, and to account, not to the liquidator, but to the court, creditors, legatees and heirs, if there bo any.

No doubt the Legislature had the power to extend to the sureties on a liquidator’s bond, a similar protection; but it did not do so. Inserting such sureties within the letter of the text, would be judicial legislation. When a law is clear and free from ambiguity, its letter must not be disregarded under the pretence of pursuing’ its spirit. R. C. C. 13. The inclusion of the sureties named in the article amounts to the exclusion of all others, not mentioned in it.

It therefore follows, that, as the law does not require that steps be taken against a liquidator to enforce a judgment against him, as a condition. precedent to a suit like this against the sureties on bonds furnished tinder Article 1139 of the R. C.'C., the executors were not bound to issue execution against'Klotz, and that they had authority to stand in court to bring this action against the defendants as 1ns sureties, just as they could have sued them, when they originally proceeded against him.

III.

■'file next contention is that, whereas this Court has decided in Klotz vs. Macready, 35 Ann. 596, that Articles 1138 et seq., E. C. C., entitling tiny survivor of a commercial partnership to bo appointed liquidator of the concern, do not apply to testamentary successions, and that the appointment of Klotz was unauthorized and a nullity, it is a sequence that whatever was done in furtherance of the appointment is of no effect, and that the bond sued on being' therefore void, it must be viewed as having never been uttered.

In support of this position, the defendants rely on a number of cases in which it was held, that no recovery could be had from sureties on bonds furnished, when there existed no law authorizing the execution.

Tlie correctness of the rulings invoked surely cannot be, nor is it, assailed. To the reverse, it is admitted; but the trouble is that they have no bearing on the present controversy, as, in the matter in which the bond sued on was furnished, there was a law requiring the giving of the bond, and the court has the power and it was its duty, to require it. R. C. C. 1139.

In the case, the decision of which is invoiced, this Court did not hold that there was no law authorizing the appointment of a liquidator to settle the partnership in which a deceased was concernel, and it did not decide that the court had no right to make the appointment, in a jiroper case. All it did rule, was that the succession of Margaret Haughefy was not vacant and was represented bjr testamentary executors, who had the right, for valid reasons, to oppose the appointment of a liquidator, and that, as the six months following the death had expired, within which the partnership affairs had to be wound up, the District Court had erred in making the appointment, which, consequently was rescinded.

This judicial declaration could not and did not release Klotz from the obligation which he had incurred to administer and account, nor could it, nor did it, discharge the sureties from responsibility. The bond which Klotz furnished was given to enable him to retain and obtain possession of the i>artnership actual and eventual accounts, for the maladministration of which he has heen judicially held liable.

The furnishing of the bond, with the defendants as sureties on it, has accomplished its purpose and has produced legal effects, the benefit of which the executors can demand, although the appointment was annulled. This is not one of the cases in which the maxim: Quod est nullum, nullum, produtit effectual, applies. To all rules, there are exceptions which confirm them. R. C. O. 1120.

The law is indisputably clear, that no administrator can be legitimately appointed to a succession, when there are no debts to pay, when all the heirs are, of age and present, when they accept it unconditionally and oppose the appointment sought.

Assuming a case in which an application of that sort is made and granted, in which the party appointed qualifies and gives bond, taking possession of the succession assets, notwithstanding appeal by the heirs, in which the aiqiointment is annulled, — could it be claimed for a moment that when the heirs would demand possession of the assets from the administrator, who would fail to turn them over, notwithstanding judgment and unavailing' steps to enforce it, — the sureties could shirk all responsibility, because, the order appointing the administrator had heen annulled, the appointment vacated and the bond thereby avoided ?

Surely not, simply because, although the court improperly exercised its discretion, there was a law authorizing the appointment in a proper case, under which an order was made by which the appointee possessed liimself of the succession assets, the order producing legal effects until annulled. R. C. C. 1120, Succession of Altemus, 364; Webb vs. Kellar, 39 Ann. 66.

It would be monstrous to hold otherwise. The case certainly would be different, if, although the bond had been furnished, the appointed administrator liad taken no possession of the assets and had made himself in no manner responsible for the same.

IY.

Another defence set up by the defendants is, that the bond was furnished payable to the judges of the Civil District Court; that the plaintiffs are not parties or privies to it, or the assignees thereof.

It is a ready answer to such objection, that the bond, being a legal bond, and the sureties therein being legal sureties, the bond should be read by the light of the law under which it was required and received.

That law specially provides that the liquidator shall furnish bond in favor of the succession representative for a certain amount. R. C. C. 1138 et seq.

Under the well settled doctrine that were a bond is given under the authority of a law, whatever is included in the bond and which is not required by the law, must be read out of it, and, whatever is not expressed and ought to have been incoiqmrated, must be read as if inserted into it, it follows that the words found in the bond by which it is made payable to the judges of the Civil District Court, must be left out, and the words to the succession representatives, must be deemed as embodied in their place.

By reason of all the foregoing views, it becomes unnecessary to consider what the consequences would be to the sureties, were the bond, instead of being what it is found to be, a conventional obligation.

V.

It cannot be, urged that the consideration of the bond failed, for, the stipulated condition was that the appointed liquidator would properly manage the. property entrusted to him, account therefor and otherwise discharge the functions and duties incumbent upon him, and that, on his failure to do so, the sureties would make good his default.

Tt was not only the appointment, but also the taking of possession, the gestión of the partnership assets, the liquidation of the concern, and the proper accounting for the same, that constituted the consideration of the bond.

Sureties have never been permitted to escape responsibility, when the bond, which they signed, had served as an instrument for obtaining possession of property, which, subsequently had not, on proper demand, been lawfully accounted for. They have been taught that, in such cases, signing is not an idle or vain formality.

VT.

Neither can it be, claimed that there was no breach shown.

The judgment by which Klotz was condemned to pay a large sum because of his maladministration and failure to account for the partnership assets in Ms possession, both, previous, during and subsequent to his appointment, and his default after his appointment had been declared null and been vacated, to settle for that judgment, are prima, fade evidence, to a certain 'and sufficient extent, against his sureties of his delinquency, to justify the saying, that he has broken his contract and his sureties are responsible with him and in his place eventually, as is written and promised in the bond.

VII.

The extent of that liability is the last matter to be considered.

It is apparent that the defendants cannot be held as fully as Klotz was, (29 Ann. 638) for, their obligation, towards the succession of Margaret Haughery, are to be measured by a different standard.

Klotz was condemned to pay for the value of all the partnership assets which were in his possession as surviving partner, less proper deductions, as it appeared that certain portions thereof, although seemingly sold at public auction, under judicial authority, had been adjudicated, for his account and benefit, to persons interposed, who, after-wards transferred their ostensible title to the same, to him at cost price.

His position as liquidator of the concern, subsequently annulled, may well be assimilated to that of a succession representative where official acts are valid, although, on appeal, his appointment be annulled. R. C. C. 1120; 32 Ann. 364; 39 Ann. 66.

Whatever was accomplished by him by fraudulent devices, as liquidator, was considered as illegal and as producing np effect to exonerate him, for the reason, that no third person was at the time concerned in the litigation, and that such persons could be shielded by the authority in furtherance of which Klotz was acting.

The case is not the same as to the sureties, who, for the time being, were and are presumably sueh persons.

They are responsible, under the law and tlie terms of their bond, only for a proper administration by Klotz., as liquidator, of the assets of which ho had possession in that capacity, unless they or either of them be shown to have collnsively participated in a dishonest and illegal disposition of those assets by their principal, whether in his individual or official capacity.

The quantum of their liability was not passed upon by the District Judge, owing to the peculiar decision which lie made on the issues presented.

To arrive at a correct conclusion on that subject, would require an onerous examination of intricate matters which, in preference, appertains to the tribunal of first instance, rather than to a court having-appellate jurisdiction.

Following precedents in kindred instances, whatever might be strictly our authority presently to investigate and adjudicate upon the amount and extent of the respective responsibility of the sureties, we deem it preferable to remand the case to the lower court, primarily to ascertain the same.

It is, therefore, ordered and decreed that the judgment api>ealed from he reversed; and it is now ordered and adjudged, that the exceptions filed by the defendants he overruled; and, that the case he remanded to the lower court, to be further proceeded with according to the views herein expressed and otherwise according to law, and that the defendants pay costs of appeal, and that those of the lower court abide the final determination of the suit.


author: Poché, J. Fenner, J.

text:
    No. 10,275.
    The State of Louisiana vs. The Pittsburg and Southern Coal Company.
    The Supreme Court has appellate jurisdiction of a case in which the constitutionality of an impost is in contestation, irrespective of the amount involved.
    Act 147 of 1888 is compulsory, and under its provisions, all coal boats sold in Louisiana must be gauged or inspected by the State gangers appointed under the act.
    The title of the act contains but one object, and the statute does not violate any provisions of the State Constitution.
    A statute of a State requiring the inspection of a commodity so as to ascertain and. secure a proper measurement is an inspection law within the meaning of the Constitution of the United States.

      Quantity is as legitimate a subject of inspection as quality.
    Act 147 of 1888 is not a l'egulatlon of commerce, nor does it lay an impost duty within the meaning of the Constitution of the United States.
    The term impost, as used in that clause of the Constitution which says that “no State shall lay any imposts or duties on imports or exports” does not refer to articles imported from another Stale, but only to articles imported from foroign countries into the United States. 8 ATal. 128.

      APPEAL from the First City Court of New Orleans. Price, J.

      Waller 1L Rogers, Attorney General, and W. IF. Vance, for Plaintiff and IntervenoT, Appellants.

      Bayne, Denegre di Bayne for Defendant and Appellee :
    1. Wliovo thoro aro two defenses to a suit in a justice's court, one involving a question of fact, and a second a constitutional question, and t-lie caso goes oft on the question of fact, no appeal lies to t.lio Supremo Court.
    2. A suit brought to recover a penalty imposed for non-observance of tlie State inspection lawa (conceding for the present the question of inspection) does not involve the constitutionality or legality of any tax. toll or impost whatever, or of any fine, forfeiture or penalty imposed by a municipal corporation, and therefore no appeal lies in such a case from a oily court to the Supreme Court. Barry, Inspector, vs. Gamier, 31 Ann. 831.
    3. A.ct 147 of 1888. known as the “Goal Gauge Law,” does not provide for compulsory gauging. It only requires gauging- to bo done by State gaugers when either buyer or seller requires it. The law is intended to confer a benefit, not levy a compulsory and odious ta*, where neither purchaser nor seller requires or desires the services of a gauger.
    4. If Act 147 of 1888 is intended to provide compulsory gauging of coal and coke boats it is unconstitutional —first, because it violates Article 46 of the Constitution, being a local or special law. regulating not only tlio trade in coal, but the trade in coal when sold in coal boats; second, because it violates article 1, section 8, paragraph 3 of the Constitution of the Cnited States, hemg a regulation of interstate, commerce. Henderson vs. Mayor, 02 U. H. 268; li. It. Co. vs. Husen, 05 If. tí. 470; Bowman vs. It. It. Co., 125 If. S.
    IF. 8. Benedict and II. G. Gage on tlie same side.
   Tlie opinion of tlie Court was delivered by

Poché, J.

This is a proceeding to enforce a penalty for the alleged violation of Act 147 of 1888, entitled, “An act for the appointment of two coal and coke boat gaugers, to fix their compensation, and to define their duties.”

The charge is that tlu defendant corporation sold a boat of coal which had not been gauged as required by the statute, and the penalty is claimed under the eighth section of the act, which reads as follows:

No boat load of coal or coke shall be sold in this city or State until it has been inspected as provided for in this act. And any person who shall sell a boat load of coal or coke that has not been gauged, as aforesaid, shall be liable to a penalty of fifty ($50) dollars for each boat or barge so sold, to be recovered, without costs of suit, in any court of competent jurisdiction, for the benefit of the Charity Hospital of New Orleans,”

The defense is substantially:

1. A denial that the law has been violated; followed by an averment that the boat load of coal had been gauged in accordance with the provisions of the statute, to the satisfaction of the xrarchaser, by a com-X>etent gauger employed by the seller, and that the enrployment of the State gaugers is not made compulsory by the statute.

2. That, if the act can be construed as meaning that the enrployment of the State gaugers is compulsory, the legislation is violative of Articles 1, 6,-29 and 46 of the Constitution of the State of Louisiana, and of the first and second clauses of Section JO of Article 1 of the Fifth Amendment; of Section J of the Fourteenth Amendment, and of the third clause of Section 8 of Article J of the Constitution of the United States.

The judgment below was in favor of the defendant and the State axpeals.

The suggestion of axpellee’s counsel, that the case is not within our jurisdiction, is not well founded.

The main resistance to the act is that “it lays an inpost or duty on goods, not the product of the State of Louisiana, but of a sister State, which is not necessary for the execution of any iusx>ection law,” and that as such it violates quite air array of articles of the Constitutions of Louisiana and of the United States.

The case, therefore, x>resents an issue involving the constitutionality or legality of an impost, within the meaning of Article 81 of the Constitution, which provides that in such cases the jurisdiction of this court attaches as well to the facts as to the law.

The authorities quoted on this x>oiut by apxiellee’s counsel are decisions of cases originating under the Constitution of 1868, which differed in this x>articular from the present Constitution, and they are all auswered by the.decision of this court in the case of the Corporation of Minden vs. Silverstein et al., 36 Ann. 912. In that case the court found the law in favor of the corporation as affecting the legality of the fine, and decided the facts in favor of the defendants.

In talcing jurisdiction of the facts, the court said: “ The feature of the cause which grants to this court jurisdiction over the legal question involved, also vests it with jurisdiction over the facts. That element of jurisdiction, which was left in some doubt by the Constitution of 1858, has been materially elucidated by the x>rovision on this subject in the present Constitution, which reads: In such cases the appeal on the law and tlie-/«cf shall be directly from the court in which the case originated to the Supreme Court.’”

Hence it follows that we have, and that we must exercise, jurisdiction over this case, in both branches of the defense.

The judgment of the City Court is predicated on the conclusion that the employment of the State gaugers is not compulsory under the statute, and that, therefore, the law was not violated by the defendant corporation in having the coal measured by its own gauger, who had followed the requirements of the act as to the mode of measurement.

Our examination of the case has led us to a different conclusion.

The act is very inartistically worded, and appears to have been very carelessly and loosely drawn, hence it is not surprising to note the multifarious constructions to which it has already been subjected.

It consists of nine sections, which are substantially as follows:

1. The first section provides for the mode of appointment of two gaugers, and directs that their offices shall be kept in the City of New Orleans.

2. The second section regulates their bonds.

3. The third section makes it their duty, when called upon for that purpose, to gauge any coal or coke boat or barge in the port of New Orleans or the State of Louisiana.

4. The fourth section regulates the mode of gauging, and decides what a bushel shall consist of in measurement.

5. The fifth section makes it the duty of the gaugers, or either, to respond promptly to any call made for their or either of their services, and prescribes the style of certificates which they must furnish.

6. The sixth section fixes the fees for gauging and regauging, and requires the seller to pay the same.

7. The seventh section reads: “ The purchaser of any boat or barge of coal or coke shall have the privilege of calling upon the said gauger or gaugers to regauge boats in all cases where the original gauge is not satisfactory, and such regauge shall be adopted as the correct measure. If the original gauge shall be found to be correct, then the purchaser shall pay tlie fee for reganging; but if the regauge shows a less measure, then the seller shall pa,y the fee.”

8. The eighth section contains the penal clause of the act and has been transcribed in the first part of this opinion.

9. The ninth section fixes the term of office of the gaugers at four years, and provides that the act shall take effect from and after its passage.

From our construction of the act it appears that its true intent and purpose is to secure a uniform measurement of all boats or barges of coal or coke which are sold in this State, and to require that said measurement is to be made by two State officers to be appointed for that purpose, whose certificates shall be proof that therequiredmeasurement has been made, as well as of the quantity of coal or coke contained in each boat or barge, and whoso fees for such services are to he paid by the seller, except in cases of regauging, when the measure is found correct, in which cases the fees shall he paid by the purchaser.

Hence it is clear to our minds that the sale in the State of any boat load of coal or barge which has not been inspected and measnred by the State gaugers is unlawful, and subjects the seller to the payment of a fine or penalty of fifty dollars for each boat or barge so sold.

The provisions of Section 3, which are held up as justifying the contention that the gauging by the State gaugers is optional with the seller, means, according to our construction, that the State gaugers shall be compelled to measure boats of 'coal, not only in the port of New Orleans, where their offices are situated, hut that the measurement must he made, if required, in any other part of the State, and Section 5 requires that they must proceed to any point to which they are called, for the purpose of ganging coal boats, without unnecessary delay.

The requirements of those two sections may compel them to proceed for the purpose of measuring coal boats, to any point in this State, on the Mississippi river, from the Arkansas line tq the Gulf, or to any point on any water course in the State on which a boat of coal can be floated.

But we are very clear in the conviction that neither these two sections nor any other provisions of the act can he reasonably construed as meaning that it is optional to dealers in coal in boats or barges to call or not, as they choose, on the State gaugers to measure their boats before they sell them.

Such a construction would absolutely and effectually defeat tlie primary object of the act as hereinabove indicated, and such a conclusion would obstruct, instead of executing, the legislative will solemnly expressed.

We, therefore, conclude, and we hold, that the employment of the State gaugers for the purpose of measuring every boat or barge of coal or coke sold in this State is compulsory, and that the defendant in this case is liable for the penalty inflicted for the infraction of the law, unless it be violative either of the State Constitution or of that of the United States.

We do not understand that on appeal the defendant’s counsel lay any stress on the application of Articles 1, 6 and 29 of our Constitution to to the discussion of their case. But if they do, a sufficient answer is that the two articles first enumerated have no earthly connection with the subject; and that Article 29, which requires that every law shall embrace but one object, and that shall be expressed in the title, is not violated by the statute under discussion.

The contention seems to be that the act embraces several objects. In thus arguing, counsel simply and unconsciously confound the object of a law with the means of canying out that object.'

The object of the law is the appointment of two coal and coke boat gaugers, which indicates the purpose' or intention of having coal and coke gauged. Fxing the compension of the gaugers, and defining their duties are the means of carrying out the object of the law.

It is next contended that the act violates the paragraph of Article 46, which prohibits the General Assembly from passing any local or special law; “regulating labor, trade, manufacturing or agriculture.”

But the law is neither local nor special, and is intended to take effect throughout the State on the subject-matter of its provisions. Whenever the Legislature proposes to create the inspectors of calico, thread or shoes, which counsel seem so seriously to dread, their case will doubtless receive pyroper judicial attention.

It is conceded, in argument, that there would be no complaint if the gauging fees were not exacted of the sellers of coal, and, therefore, this seems to be the local attack which it is desired to resist.

We, therefore, hold that the statute is not hostile to any provisions of the State Constitution.

The grounds of nullity charged against the statute as violative of the Constitution of the United States, which are pressed on appeal, are that it is a regulation of commerce,, and as such antagonistic to paragraph 3 of Section 8 of Article 1 of the Constitution, which vests the Congress of the United States with the exclusive power “to regulate commerce with foreign nations, and among the several States and with the Indian tribes;” and in the next place that it purports to lay an impost or duty on coal, not produced in Louisiana, but in a sister State, which is not necessary for the execution of an inspection law, in violation of paragraph 2, Section 30 of Article 1 of the Federal Constitution, which forbids any State, “without the consent of Congress, to lay any imposts or duties on imports or exports, except what may be absolutely neces sary for executing its inspection laws.”

The argument made on these two points is practically answered by the consideration, which flows from the very text of the statute, that it is clearly an inspection law, and that the State derives no profit or revenue from its enforcement, as the charges enacted for its executurn enure exclusively to the gaugers or inspectors as their fees for the services rendered in the inspection.

It is not contended that those fees are excessive or unreason able; on the contrary, it is in proof that the identical fee, $10, for inspecting or measuring a coal boat is the compensation allowed by the defendant to the gauger employed by itself for that very purpose.

The law is not a regulation of commerce in any sense of the word; it requires no condition on any one for the right of bringing coal for sale in Louisiana, either from a sister State or from a foreign country; aud much less does it seek or tend to prohibit the introduction of that commodity into the State from any other part of the world. The inhabitants of other States and foreign countries -may bring any quantity of coal for sale bn our markets, and no power in the State can prevent it; all that the statute under discussion purports to do or aims to accomplish is to protect buyers and consumers of coal sold in boats and barges against fraud in weights and measurements. And. it appears from the record, to our entire satisfaction, that the necessity for such an inspection was urgent.

It is in proof that the coal thus sold was bought in Pennsylvania, under one standard of measurement, and that it was sold in Louisiana under a different standard, and that the practical result was that what was sold here for 100 barrels of coal under the New Orleans standard of measurement, was, in truth, and represented but 98 barrels at Pitts-burg and other coal shipping points in Pennsylvania.

Hence it is patent that the object of the law embraced a protection which the State owed to its citizens, and that the purpose could not be reached through any other channel but by responsible officers of the State, directly amenable to the laws of the land.

It is error to suppose that a law regulating the manner of measuring or weighing a commodity on the market is not an inspection law. It is well settled in jurisprudence that quantity is as legitimate a subject of inspection as quality.

And the right of enacting inspection laws by the States has never been questioned. “ They form a portion of that immense mass of legislation which embraces anything within the territory of a State, not surrendered to a general government; all which can be most advantageously exercised by the States themselves.” Gibbons vs. Ogden, 9 Wheaton, 203.

The views which we have herein announced, both as to the nature and scope of the statute, and as to ihe power of the State to enact and to enforce similar legislation, find sanction in numerous adjudications by many courts of the country, dealing with laws of the same import, wliicli liad been assailed on constitutional grounds, substantially similar to those which have been invoked in the present discussion.

Our own reports furnish three cases presenting kindred issues, in which the same views prevailed. State vs. Fosdick, 21 Ann. 256; State vs. Pleasants, 23 Ann. 349; Clark vs. Board of Health, 30 Ann. 1351.

The first two of these cases involved the alleged unconstitutionalitv of hay inspection and weighing laws, and the other presented a similar resistance to a coal oil inspection and measuring law.

In each of those cases it was decided that the law was not a regulation of commerce, or an impost on imports.

As far back as the year 1823, the highest court of South Carolina disposed of a contestation involving the alleged unconstitutionality of an ordinance of the City of Charleston, requiring the measurement of coals by an inspector. It was there held that the ordinance was not a regulation of commerce, although the coal sought to bo, measured had been imported from a foreign land.

We quote from that learned opinion the'following passage, on account of its peculiar bearing on one of the points now under discussion:

“ If any articles imported can be inspected, I cannot undertake to decide that coals ought not. Quantity as well as quality is an object of inspection, and it may contribute as much to the convenience of the citizens of this place, where coals are used very generally for fuel, to have an inspection of them, as of beef, or pork, or bread or any other article.” McCord’s Reports, 2 vol., p. 495, Council vs. Rogers; see also Stokes vs. New York, 14 Wendell, 87; Yates vs. Milwaukee, 12 Wisconsin, 673.

In the leading case of Turner vs. State of Maryland, 107, United States Reports, p. 38, the question of State inspection laws, as affected by the Constitution of the United States, received an exhaustive review in an elaborate opinion containing very useful information on the subject.

In that case the noted Maryland tobacco laws were decided to be constitutional. It was then held:

“The charge for outage, under the proviso of said section 41, as so amended and re-enacted, is an inspection duty, within the meaning of the Constitution.”
“ Dispensing with an opening for inspection of the hogsheads, mentioned in said proviso, does not, in view of the other provisions of the tobacco inspection statutes of Maryland, deprive those statutes of the character of inspection laws.”

In that case the court said : “Recognized elements of inspection laws have always been quality of the article, form, capacity, dimensions and weight of package. * * * it has never been regarded as necessary, and it is manifestly not necessary that all of these elements should coexist in order to make a valid inspection law.”

All the foregoing considerations in this opinion are predicated on the theory that the coal, which is the primeval object of this contestation, is imported within the meaning of the Constitution. But such is not the case; it is in proof that it all comes from the State of Pennsylvania. Now the Supreme Court of the United States lias decided that, “the term import, as used in that clause of the Constitution which says that no ‘State shall lay any imposts or duties on imports or exports’ does not refer to articles imported from another State, but only to articles imported from foreign countries into the United States.” Woodruff vs. Parham, 8 Wallace 123.

It is quite clear that this view of the case is of itself fatal to defendant’s contention on the question of imports.

A thorough examination of the questions discussed has led ns to the conclusion that the State liad the clear constitutional power to enact the statute in contestation, and hence it must be enforced.

It is, therefore, ordered that the judgment appealed from be annulled, avoided and reversed, and it is now ordered and decreed that the defendant be condemned to pay to the State of Louisiana for the benefit of the Charity Hospital of New Orleans, the sum of fifty dollars, with costs in both courts.

On Application por Rehearing.

Fenner, J.

Nothing in this application shakes our conviction of the correctness of our interpretation of the statute as malting the gauging of coal boats and barges, before sale, compulsory. We may remark, however, that the act applies exclusively to sales of boat,-loads or barge-loads of coal, aud not to sales of a particular number of barrels of coal from a boat or barge. Therefore, the suggestion of counsel of the hardship of having to pay $30 for the privilege of selling 10 barrels of coal from a boat, is irrelevant and without foundation.

The case of Turner vs. Maryland, 107 U. S. 38, is conclusive on the Federal questions involved, except in one respect, viz : in that case the inspection applied to tobacco grown in Maryland alone, and the court concluded its opinion by saying: “We must not be understood as expressing any opinion as to any provisions of the Maryland laws which refer to the inspection of tobacco grown out of Maryland.” This and other clauses of the opinion reserve the question as to whether State inspection laws of the character involved in that and in the present case, not essential to the immediate health or safety of the inhabitants, can be applied to articles brought from one State into another for sale.

Admitting there may be doubt on this question, we deem it safest to maintain the constitutionality of State law on th<^ other authorities quoted by us, there being no decision of the Supreme Court of the United States to the contrary.

Rehearing refused.