author: Todd, J. Bermudez, C. J. Poché, J. Poché, J. Todd, J. Poché, J.

text:
    No. 7573.
    Valentine Vredenburg et al. vs. W. J. Behan et al. W. J. Behan vs. Valentine Vredenburg et al.
    No. 7917.
    (Consolidated.)
    The doctrine of contributory negligence should not be carried to the point of holding the injured party not entitled to damages, on account of acts of his employees, which are not connected with their employment.
    The responsibility of persons who keep feJfocious animals is of such strict and grave character as not to be relieved or modified by the ordinary considerations which regulate claims for damages. The very keeping of such animals is an unlawful act and, therefore, the injury done by them when they get loose, gives rise to an action for damages under all circumstances.
    When persons sued to be made liable for their acts, seek to escape such liability by pleading some privilege or immunity in derogation of common right, they must clearly establish c i the existence of the same, and bring themselves strictly within the provisions of the law N on which they rest such claim.
    The “ Orescent City Rifle Club ” is not a Corporation. It was organized under the law providing for the creation of Corporations for “ literary, scientific and charitable purposes.” The declared object of said association does not fall within the purview, the letter or the spirit, of the law relied upon. Rifle shooting is not a science, though it may be an art.
    The fact that one of the Defendants, the president of said association, was not aware of the keeping of the boar on their premises, does not exonerate him from liability.
    \The discontinuance of the suit against some of the solidary obligors does not discharge the other Defen dants.
    Citation against some of the solidary obligors, interrupts prescription against the others.
    The charge of the judge a quo to the jury, that “ damages can be claimed by the heirs of the deceased for the loss of his life,” is clearly erroneous. Anumber of adjudications of this Court declare that no such action lies in favor of the heirs. The Act of 1855, amending Article 2315, C. C., expressly limits tlioir right to such action as the deceased himself would have had for damages had he survived the injury.
    APPEAL from the Sixth District Court for the parish of Orleans. Rightor, J.

      H. Howard MoCaleb for Plaintiffs and Appellees:
    Rirst — Where there are a number of defendants represented by three attorneys, the alleged inability of one attorney to be present during the trial, because of his professional engagements elsewhere as Assistant City Attorney, is no ground for a continuance, when the application is not supported by affidavit, and when the record shows that notwithstanding said statement he was present during the whole of the trial in the court below, hlore especially should this rule he adhered to in the present case where the parties represented by such attorney have since acquiesced in the judgment, are no longer before the Appellate Court, and the objection is raised here by other counsel representing other parties. It would be a vain thing to grant a new trial on such ground, after the attorney andhis clients have rotired from tho case. 7 A. 453 ; 2 L. 297; 12 L. 592; 13 L. 424 ; 1 R. 90; 18 A. 291; 19 A. 268.
    Second — Where a number of defendants sued in solido sever in their defense, and one of them makes an affidavit for a new trial, on the ground of newly discovered evidence, such application will be disregarded and refused, (1) when the party making the affidavit has since acquiesced in the judgment, (2) when the parties seeking to take advantage oi such application, have made no affidavit whatever, (3) when neither the competency (9 R. 170) nor residence of the witness is shown, (4) nor from whom, when, where, nor in what manner the alleged newly discovered evidence was obtained. 6 N. S. 327. One defendant cannot make the affidavit for others to obtain a new trial. 3 N. S. 129; 2 A. 796-1019.
    Due diligence in obtaining evidence is a question for the Court not the party to determine. $ N. S. 170. An affidavit of newly discovered evidence made to obtain a new trial, after a case has been tried twice, and sixteen months after the institution of the suit, does not show due diligence, nor does the affiant make his vigilance apparent. 2 A. 626. Where parties have agreed to try a cause upon the same evidence and testimony taken on a previous trial, an application for a new trial on the ground of newly discovered evidence made in direct violation of such agreement will not be listened to.

      Consensus facit legem ettollit errorem.

    Third — The form of a general verdict when in strict compliance with Art. 522 C. P. is not open to objection. 17 A. 166. Tbe singular is often employed to designate several persons. Rev. C. C. 'Art. 3556.
    Eourth — Where a number of defendants are sued in solido for damages arising from an offense or quasi-offense, a discontinuance of the suit as to some of them, does not operate as a conventional discharge or remission of tbe debt as to tbe 'othersfor after discontinuing, plaintiff may bring bis action anew. C. P. Art. 492; 2 A. 756.
    Eifth — Suit brought against one or more of tbe debtors in solido interrupts prescription as to all. Rev. C. C. Arts. 2097, 3552.
    “ Cotresspassers being bound in solido, suit against one interrupts prescription as to all." 21 A. 541.
    Sixth — “Although tbe judge may bave charged tbe jury improperly, yet if tbe evidence would not bave authorized a different verdict, it will be upheld.” 7 A. 678 ; 10 A. 150.
    Seventh — “ Entries in club and society books, wben kept by tbe proper officer and accessible to all tbe members, are admissible in evidence against such members, who will be treated as privies to tbe proceedings therein recorded.” Wharton’s Law of Evidence, § 1131; 2 C- & P. 556 ; l Stark, 405 ; 5 Ex. 147; 6 Hill N. Y. 318.
    Eighth — It is no answer to an action for damages caused by a ferocious beast kept by defendants in violation of a penal, prohibitory municipal ordinance (Leovy’s City Laws and Ordinances, Art. 703) to show that plaintiff’s servant bad provoked or worried sucb beast or M that the party injured was himself guilty of some imprudence or negligence” (StarMe on Evidence 533, Yol. 2 — 2Str. 1264), because the possessor of a dangerous agency, whether animate or inanimate, is hound at his peril to guard it so it can do no harm, and if it escape will be liable for all resulting injury. Wharton’s Law of Negligence, § 860 ; 17 Wall. 657; 4 Allen, 431.
    Ninth — Masters are not responsible for the acts of their servants beyond the scope of their employment. Rev. O. C. 2320, 3010. Especially where tbe act of tbe servant was done out of the master’s presence, in violation of bis orders and wben it was impossible for him to bave prevented sucb act.
    Tenth — Wben defendants bave by their acts and conduct acknowledged their liability, after an injury has been done by a wild beast kept by them upon their premises, ante litummotam, or bave in their pleadings claimed to be released from tbe debt so created by remission or conventional discharge of other tortfeasors with whom they are bound im solido, they will be estopped from subsequently denying their liability for tbe injury sustained.
    A plea of extinguishment or remission of a debt or obligation of any kind is an admission of its existence and validity, which will estop tbe party making such plea from contesting tbe correctness of the obligation alleged to bave been extinguished. H. D. p. 1157.
    Eleventh — Those who keep ferocious animals are liable for all damages caused by them. Exodus, Chap. XXI, Y. 29 and 30; Twelve Tables YII; Cooper’s Justinian Lib. IY. Tit. IX, § 1, p. 358; Partida Law 23; Seventh Title XY, C. N. Arts. 1384, 1385; Domat, Part Í* Book II, IX — 1568 ; Merlin Repertoire Animaux, p. 416, Yol. 1, ib. 3 “ JBlesse, 11 p. 186, ib. Yerbo” Quasi-Delit, 26p. 242.
    It matters not whether defendants were owners or proprietors, the mere keeping of such animal, a Bear, by them was unlawful, and is sufficient to render them responsible. Marcado, Tome 5, pp. 272 and 273; Toullier, Yol. II, Ho. 298; Addison on Torts, p. 22,185; Sherman & Redfield on Hegligence, § 188; "Wharton’s Law of Hegligence, §§ 917, 918, 919, 920 and 923; Hale’s Pleas of the Crown, Yol. 1, *430; May vs. Burdett, 9 A. and 33. 100; 1 Poster & Finlaison, 92; 1 Comstock, 515; 8 Barb. 630; 38 Barb. 14; 41 Cal. 138; 16Ind.257; 52Me. 178; Spring Co. vs. Edgar, 99 TJ. S. 645.
    Twelfth — “ The harboring a Bear about one’s premises, or allowing him to be chained or kept there, is a sufficient keeping to support the action. It was the duty of the persons having charge of the premises, to have sent the Bear away or to have caused him to be destroyed.” Lord Tenterdon, C. J., in McKone vs. Wood, 5 C. and P., (2 Eng. Com. L. R., p. 25.) “ Whoever brings on his lands'and collects and keeps there anything likely to do mischief, if it escapes, must keep it at his peril; and if he does not do so, is prima fade liable for all the damage which is the natural consequence of its escape.” Justice Blackburn in Fletcher vs. Rylands, Eng. and I. Appeals, 3 Law Reports, 330.
    Thirteenth — There is no such thing as a “ tame Bear.’-2-
    “ The statement in the declaration that the defendant knew the bear to be of a fierce nature, must be taken to be proved, as every one must know that such animals as lions and bears are of a savage nature. For though such nature may sleep for a time, this case shows that it may wake up at any time. A person whj keeps such an animal is bound so to keep it, that it shall do no damage. If it be insufficiently kept, or so kept that a person passing it is not sufficiently protected, the owner is liable.” Crowdor, J., in Besozzi vs. Harris, 1 Foster & Finlaison, Hisi Prius, R. p. 92.
    Fourteenth-The surviving widow and children of a deceased person may recover all damages suffered by the deceased from injuries inflicted by a ferocious Bear kept by defendants. The widow and children are subrogated to all the rights of the deceased sufferer. R. O. ‘ C. Art. 2315; 20 A. 25; 27 A. 713. The jury are the proper judges of the quantum of damages (17 A. 19; 23 A. 181), but if the evidence authorize it, the amount may be increased by the Appellate Court. 11 A. 645.
    Fifteenth — A corporation “ organized” for the purpose of cultivating thescience of rifle shooting under the general laws of the State, has no legal existence, being unauthorized by law. Rev. Stats. Sec. 677 and 737; 16 A. 153; 29 A. 369. Rifle shooting is an art and not a science. Being unauthorized by law, it can enjoy no public character and cannot appear in a Court of Justice. R. C. C. Art. 446. The members of such an association or partnership are liable in solido for damages caused by awild beast, where by the articles of the association “ all property vested in the members jointly.” A bear is property and susceptible of private ownership. Rev. C. C. Art. 3415. “If an animal has many masters each will be held solidarity in the noxal action.” Digest of the Pandects, Book IX, Tit. 1, Ho. 14.
    Sixteenth — “A corporation cannot commit a crime or an offense in its corporate capacity, although its members may be guilty of these crimes in their individual and respective capacities.” Rev. C. C. Art. 443.
    Seventeenth — “ If a beast kills a man it is murder or manslaughter in the owner.” Hale’s Pleas of the Crown, Yol. 1, *431; Blackstone’s Commentaries, Book IV, [197]. The fact that the party who has received wounds, apparently mortal, has been unscientifically treated, or that the treatment is the apparent cause of death, will not excuse the parties whose beast inflicted the wounds or lessen their liability civilly or criminally.” Wharton’s Criminal Law, § 941.
    Eighteenth — The officers of a corporation are its agents (Rev. C. C. 439), and their powers are regulated in the same manner as those of other agents. In cases where directors have acted beyond the scope of their authority, they are personally responsible in damages. 7 R. 464; Addison on Torts, Chap. XX, Sec. 2; Story on Agency, §§ 309, 311; Wharton on Agency, §§ 537, 538, 539, 540, 542.

      nineteenth — Whether a corporation, association, or partnership may or not be rendered liable for any offense, neglect, imprudence or want of skill or other fault, its liability would not relieve its managers or other officers, or any person who has assisted or encouraged the offense or imprudence or negligence. It C. C. 2216-2817. All participants, aiders and abettors, principals and agents, masters and servants, whether members or officers of a corporation or not, or acting under color of corporate authority, are liable personally and %n solido for tho consequences of their negligence or imprudence or illegal acts or omissions. R. C. C. 2320-2324.

      Thomas J. Semines on the same side:
    Pirst — Where, in an assignment of errors and petition forinjunction, appellants have alleged the remission and conventional discharge of appellee’s claim and judgment, against them, they are estopped from contesting its validity and existence; for the reason that a plea of extinguishment of an obligation admits the existence of the debt. 3 R. S. 273; 12 L. 307; Law R. 2, Privy O. 30; 14 L. 372; 18 L. 6; 14 An. 54; 31 An. 84; 11 An. 172; 2 An. 591; 5 R. 486; 9 An. 528. Such averments resemble the plea of confession and avoidance. Stephens’ Pleading, 229.
    Second — An assignment of errors is a plea. C. P. Arts. 902, 346. All defenses going to the extinguishment of the action, can be pleaded for the first time in the Supreme Court, where the necessaiy facts appear from the record. 12 R. 237, 540.
    Third — An injunction against an execution, alleging extinguishment and satisfaction of the judgment enjoined, amounts to a recognition of its existence. A party cannot appeal from and enjoin a judgment at one and the same time. (25 An. 538). The injunction amounts to a release of errors in the judgment enjoined. 15 Mo. 441; 3 Scam. 212; lWis. 455. Pleading or taking advantage of a judgment, estops a party from reversing it on error. 17 S. & R. 564; 44 Pa. 247.
    Pourth — Judicial confessions amounts to full proof against the party making them, and cannot be revoked. R. C. C. 2291. When contained in pleadings, and not in. answers to interrogatories, such confessions may be divided. 4 R. 144; 14 An. 860 and 868.
    Pifth — Where defendants have, by pleading remission and conventional discharge of plaintiff’s claim, admitted its existence, the sole question left for the Court t« determine, is the validity of the defense and not of the demand. A discontinuance of a suit is not a discharge of the claim. C. P. Art. 492. The rules of the Code relative to conventional solidarity are not applicable to torts; and oven if they were, the co-debtors in solido will not be discharged by settlements made with a part of tho obligors, where it is shown that, in making such settlements, reservations of rights and claim were made and are contained in the receipts given by the creditor as required by Arts. 2101 and 2203 R. C. C.
    Sixth — The Crescent City Rifle Club, not being a corporation (32 Ind. 138, 169; 7 Lans. 412), is a partnership quoad third persons (Coyler, § 53; Story, § 144; 13 L. 300; 6 R. 127; 13 An. 290; lBeasl, 31), and the entries in the books are conclusive upon the members, unless-proved erroneous. 1 R. 567; 4 R. S. 335.

      Joseph P. Hornor and Francis W. Baker for Defendants and Appellants:
    Pirst — Masters and employers are answerable only for the damages occasioned by their servants and employees in exercise of the functions in which they are employed; and such responsibility only attaches when the masters and employers might have prevented the act which caused the damage, and not have done it. C. C. 2320 (2290); 28 An. 7; 18 La. 490; 8 R. S. 504; 15 La. 169; 18 La. 548; 8 La. 539; 17 La. 541; 5 R. 11; 17 An. 166; 17 An. 19; 7 An. 321; 10 M. 187, 497 ; 2 R. S. 267; 5 R. S. 251; 2 An. 890; 5 An. 134, 426, 424 11 M. 292; 12 An. 871; 13 An. 207; 14 An. 2¿9; 7 R. S. 198; 4 La. 76; 8 An. 12.
    Second — Unless the act was a fault, no damages can be recovered for the act. 24 A-n. l.

      Third — Negligence is "the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” Broome’s Legal Maxims, p. 330; 11 Exchequer, 785.
    Eourth — If the plaintiff or his employee he guilty of negligence which has contributed to the accident, he cannot recover.
    Eiffch — The intervention of a third person whose act caused the damage, relieves the defendant, even where he be negligent. "Wharton, Law of Negligence, § 134.
    Sixth — The law of contributory negligence appliesto injuries by animals feres natures. 99 TL-. S. 651; lEoster &E. 93; 3 Barnwall & Aid. (E. C. L. R.), 304. ' " t
    Seventh — Tlie existence of a corporation, or the validity oí its charter, cannot be inquired into collaterally or incidentally in a suit to which the corporation is not a party, and when such issue is not raised in the pleadings.
    Eighth — When the character of a corporation has been approved by the District Attorney as legal, and the saméis duly recorded, the individual members are protected by the charter, until such charter be formally decreed void or forfeited in a suit to which the corporation is a party, and where the question is formally put at issue. Revised Statutes, Sec. 677; 13 La. 503 ; 2 Kent’s Corns. 212; Angelí & Ames on Corporations, 510; 15 La. 26; 5 An. 179; 9 An. 265; 94 XJ. S. 673; 44 Barb. 239; 24 111. 46; 2 Bos. 166; 24 111. 93 ; 19 Mich. 196.
    Ninth — A new trial on the ground of newly discovered evidence, supported by an affidavit in due form, should he granted.
    Tenth — A new trial should he granted when the verdict is improper. 2 Hennen, New Trial, I, 1; 17 An. 78; 15 La. 466; 17 La. 336; 9 M. 285 ; 1 N. S. 713; 24 An. 314; 25 An. 114; 25 An. 374; 10 R. 119.
    Eleventh — A party entitled to a jury trial, is entitle to a trial by a jury properly instructed upon the law, and if an erroneous charge he given, the case should he remanded for a new trial. O. P. 516.
    Twelfth — Objections to the admission of evidence, properly urged, and carried up on appeal by Bills of Exception, which are called to the attention of the Supreme Court, should he passed upon.
    Thirteenth — When an injunction has issued, it can only he set aside after trial and hearing of the parties, and if set aside improperly, and an appeal he taken, the case should he remanded for trial at the cost of appellee.
    Eourfceenth — Any action by a plaintiff, whereby the security of one defendant against his co-defendant is released, surrendered or diminished, will release the defendant.
    Eifteenth — When a party has been guilty of no wilful or intentional wrong, but is in good faith, and is sought to he held consequentially liable'for the acts of another, punitive damages will not he allowed, and a verdict for §7500 will he reduced as excessive. 11 An. 292; 14 An. 806; 27 An. 716.
    Sixteenth — A defendant is not liable for the costs Of a co-defendant as against whom plaintiff has voluntarily discontinued.
    Seventeenth — Where the decree does not correspond to the opinion, it should he corrected so-as to do so.
   The opinion of the Court was delivered by

Todd, J.

Mrs. V. Vredenburg, in her own behalf as the widow of ■William Hazard Vredenburg, deceased, and as tutrix of his minor children, brings this suit against the defendants, and claim from them in solido fifty-five thousand., dollars damages.

The petition alleges, substantially, that on or about the 30th of October, 1877, the said W. H. Vredenburg had cattle on pasturage in a lot or field situated within the limits of the city of New Orleans, on or near the junction of the Bayou St. John and Metairie Ridge; that while he was crossing his pasture on that day, in search of his cattle, he was sprung upon by an enormous and. ferocious bear, which threw him down and bit him in fifteen places, and lacerated his flesh in a horrible manner, and of the wounds thus inflicted, after suffering excruciating torture and pain, the said Vredenburg died on the 27th of November following; that the bear had been kept on the premises of a society calling itself the “ Crescent City Rifle Club,” which adjoined Vredenburg’s pasture; that under color of being officers and members of said club, though without any lawful right of so using the premises, the defendants having control and possession of the bear, whether owners of him • or not, kept him on said premises for their pleasure and use; that the bear was wild and dangerous, and was kept in a negligent manner, and insecurely chained, and broke loose and prowled in the adjoining pasture of the deceased, and was not seen in time to be avoided by him; that byvthe terror, wounds, excruciating pains, long and torturing illness and mortal injuries inflicted on said Vredenburg, he suffered damages in the sum of $50,000; and his right of action for the same has, by operation of law, survived in favor of his widow and minor children; that the business of the deceased — that of keeping a dairy — was broken up by his illness, and he was forced to sell his cattle and dairy at a loss of $3000, and an expense of $2000 was incurred for medical attendance, medicines, nurses, surgical operations, etc.

The defendants were asked to be cited, and were cited, individually. They first filed an exception, alleging the vagueness of the petition, in not showing whether they were sued because members of the Rifle Club, or individually and apart from such alleged membership, and in not setting forth specifically the items of damage and expenses charged.

The following entry on the minutes shows the disposition made of this exception, which, as it has an important bearing on the pase, we quote in full:

“ After hearing pleadings and argument of counsel, it appearing from the petition, the prayer thereof, and the admissions of counsel for the plaintiff, on argument, that defendants are sued individually and not as members of any society or corporation, and plaintiff having filed a detailed bill for medical attendance, medicines, surgical operations and nurses, in compliance with defendants’ exceptions, it is ordered said exceptions be overruled,” etc.

Tne defendants for answer pleaded the general issue.

There were twenty-six persons named as defendants in the petition, some of whom were not cited, others of whom ore discharged before or after judgment, leaving only seven of the original number now parties to the suit.

The ease was tried by a jury, and from a verdict and judgment against them in solido for fifteen thousand dollars, the defendants have appealed. After the rendition of the judgment, an execution was taken out thereon, and W. J. Behan, one of the defendantsdn the suit in which the judgment was rendered, and one of the appellants in the present appeal therefrom, applied for an injunction against said writ, which was refused by the judge a quo; and from this refusal of the judge he took an appeal to this Court; and this injunction case was, by consent, consolidated with the original suit of Mrs. Vredenburg vs. W. J. Behan et al., the pleadings of which we have just recited. The two cases, thus consolidated under the agreement, are to be reviewed and passed on together.

1. The facts out of which this controversy grew are, substantially, as follows:

The defendants were members of an association or society known as the Crescent City Rifle Club.

In July, 1877, the Club, wishing to send some of its members North to participate in an inter-State rifle shooting match, about to take place in New York, for the 'purpose of providing means therefor, concluded to give an entertainment at Milneburg, on Lake Pontchartrain. The Continental Guards, a military company of the city of New Orleans, to further the object in view, and as a contribution to the proposed entertainment, offered to the Club a bear, owned by the officers of the company, “ as a prize to be shot for ” on the occasion. The offer was accepted, and a member of the club was instructed to make the necessary arrangements for shooting for the bear.

The entertainment came off on the 3d of August, 1877; the bear was brought on the ground and was offered as a prize, as previously arranged. He was won by William Arms, a member of the club, and one of the defendants. Arms put him up again to be shot for, and this time he was won by another person, who, however, declined to claim the prize. Arms had the bear taken to the grounds of the club, and caused him to be chained to the corner of the club-house; and there the bear remained until the 30th of October, 1877. These grounds had been leased by the club, and the house erected by it belonged, by the terms of their charter, to the members of the club.

The pasture of Mr. Yredenburg, who was engaged in a dairy business, adjoined the grounds of the rifle club, and he and his employees in going to and from the pasture passed through these club grounds. On the ’ evening of the 30th of October, Mr. Yredenburg went to the pasture after his cowsv' A short time thereafter, as he was returning from the pasture, he was attacked by the bear, which in the meantime had gotten loose, and received the injuries of which he subsequently died. Tetanus or locked-jaw supervened, attended with great suffering, and his death occurred on the 27th November, twenty-one days after the wounds were inflicted. It is shown that just after Mr. Yredenburg passed through the club grounds on his way to the pasture, a boy, who was employed by him to assist in driving his cattle, and in his dairy business generally, came into the club grounds accompanied by a small dog, and teased the bear by setting the dog on him; and it was whilst the animal was thus worried, that he twisted his collar off, and ran after the dog- and finally encountered Mr. Yredenburg; and just as he attacked him he was whipped by his keeper in an effort to prevent the attack, which only served to enrage him the more.

This last mentioned fact, touching the acts of the hired boy in causing the bear to break loose, is charged to have remotely caused or contributed to the death of the deceased, and is relied on by the defendants as a ground to relieve them of responsibility for the result; and though not strictly in the order of pleading adopted by their counsel, it is well to consider it at once, and eliminate it from the case.

2. The doctrine of contributory negligence has never been carried to the .extent contended for in this instance. Had the acts referred to been committed by Yredenburg himself, there would be great force in the plea urged; and the principle invoked would be strictly applicable. It is for his own acts, however, in this respect, that a man ís bound and for which he must suffer; but he cannot be held equally answerable for the acts, faults and negligence of his employee.

The master or employer is only answerable for the faults of his employee when committed “in the exercise of the functions of his employment, and when he might have prevented the act ahd not done it. C. C. 2320.

In this instance, the boy’s act was not in the remotest degree connected with his employment; his employer was not present, was not knowing or consenting to it; and it was not in his power to prevent it.

Besides, the responsibility attaching to those who own, control or keep animals feres natures, to which class a bear belongs, is of that strict and grave character, as not to be relieved or modified by considerations of the kind presented, nor to be measured by rules that apply to owners or keepers of domestic animals.

Animals of this kind, such as lions, tigers, bears, are universally recognized as dangerous. It is the duty of those who own or keep them, to keep them in such a manner as to prevent them from doing harm, under any circumstances, whether provoked, as they are liable to- be, or not provoked. There must be security against them under all contingencies. Domat, p. 475; Merlin, Répertoire, tome 26, p. 242, verbo Quasi-Delit; Marcadé, tome 5, pp. 272, 273; 1 Law Repts., p. 263; 3 Law Repts., p. 330.

Nor does it matter that an animal oí this kind may be to some extent tame and domesticated; the natural wildness and ferocity of his nature but sleeps, and is liable to be awakened at any moment, suddenly and unexpectedly, under some provocation, as was the case in this instance.

If the defendants are otherwise liable for the acts of the bear, the acts of the boy in provoking him cannot, for these reasons, affect in the least that liability.

8. Another defense urged against the plaintiff’s right to recover, is that the defendants are sued in their individual capacity, as admitted in the record, and cannot be held liable for acts done as members of a society, and as stockholders in a corporation known as “ the Orescent City Rifle Club.”

According to the language of the petition, fairly construed, and the ; admissions in the record, the suit is against the defendants as individuals, and they are not sought to be made responsible as members of a corporation or because of such membership. Their being designated and referred to as members of this rifle club, may be regarded as descriptive, and at the same time as bearing diredtly on .the causes and motives that led to the acts and negligences charged against them. It might be argued, and it is in fact urged by plaintiff’s counsel, that keeping a bear or other wild animal was not one of the objects for which the association or alleged corporation in question was formed, was not, within the scope or purposes of its organization; and that it is only for ¡ acts done or omitted by a corporation in its corporate capacity, and ■ within the limitation suggested, that it is bound; and that, if the members of such corporation are guilty of acts of commission or omission entirely foreign to the purposes of the corporation, and not connected with their duties as officers or members of such body, they, the members, become personally and individually liable.

Under the view that we take of this subject, the question suggested does not properly arise, and it is unnecessary to pass upon it. It is a principle of law that cannot be successfully controverted, that where persons sought to be made liable for their acts, imprudence or negligence, seek to escape such liability, by pleading some privilege or immunity, in derogation of common right, they must clearly establish the existence of the same, and bring themselves strictly within the provisions of the law on which they rest such claim. Eor instance, in this case, when the defendants, sued as individuals, seek to shelter themselves under the protection of corporate rights and privileges, and by virtue thereof claim exemption from personal responsibility, and the party against whom such immunity is invoked, denies its existence, the court is forced to consider the issue thus presented, and inquire into the legality of the charter under which the claim is asserted, and see whether their pretensions are well founded and supported by law or not. And we do not concur with the defendants’ counsel that such inquiry can only be made in a direct action, attacking the charter of such alleged corporation. There may be some force in such reasoning, when the object of such attack is to have declared the forfeiture of the charter of a corporation admitted to have been legally created, and when such forfeiture is claimed by reason of the violation of its charter; or where the party sued has acknowledged the existence of the corporation by dealing or contracting with it as such; but where in the absence of such con- . ditions, as in this case, it is relied on as a matter of defense to a personal action, and its legal existence is denied, it becomes a legitimate subject of inquiry, and we must determine whether this alleged corporation was created under the authority of any law of the State. 16 An. 153; 29 An. 369; 37 Cal. 354; 46 N. Y. 477; 3 N. Y. 394; 73 Ill. 197; 32 Ind. 138, 169.

Article 446 C. C. provides:

" Corporations unauthorized by law or by an act of the Legislature ■enjoy no public character, and cannot appear in a court of justice, but in the individual name of all the members who compose it, and not as a political body; although these corporations may acquire and possess ■estates, and have common interests as well as other private societies.”

Was this rifle club a corporation authorized by law ?

It was not chartered by a special act of the Legislature, but claims its existence as a corporate body under the provisions of section 677 of the Revised Statutes of 1870, authorizing the creation of corporations for literary, scientific and charitable purposes. And by reference to the act of incorporation, passed before a notary public in conformity to the -general law referred to, we find the purposes and object of this corporation, as therein declared, “ to be the establishment of a rifle club for the encouragement and advancement of the science of rifle shooting; the establishment of a club-house and ranges, and such other purposes in ■connection therewith as may be designated by law.”

The right of individuals to receive a franchise from the State, and to be endowed with corporate immunities, is a privilege of a high order, ■and like all other privileges, is stricti juris; and the object or purpose •on which such privilege is based and from which such right is claimed, must come strictly within the plain intent, terms and meaning of the law.

Guided by this rule, and after a careful examination of the authori-' ties that offered light on the subject, we are constrained to conclude that the declared object of the association in question does not fall within the purview, the letter or the spirit of the law relied on ; that the act of incorporation for such purpose was unauthorized by law, produced no legal effect and conferred no legal right. In other words, we cannot, by any reasonable rule of construction, term “ riñe shooting ” a science. It may rightly be called an art — an important art — but it does not rise to the dignity of a science. The distinction between the two, science and art, has been the subject of much erudite discussion, and given rise to some confusion of ideas; but it is a distinction that is now generally accepted, is well defined, and has received authoritative recognition. It may be summed up thus : “ Science, in its broadest sense, is knowledge; ” or, as stated by an eminent lexicographer, “ the knowledge of many, methodically digested and arranged, so as to be attainable by one a “ body of principles and deductions to explain the nature of some matter,” — as mental science, moral science, physical science, etc. It depends on abstract or speculative principles.” “Art relates to practice or performance.” It is “practical skill as directed by theory or science,” “the mere application of -knowledge.”

Worcester, Webster, verbo Science, Art, Whewall, Davies.

If “rifle shooting” is a science, the term may, with equal propriety, be extended to nearly everything pertaining to the occupations and pleasures of men. And as corporations may be created to promote science, it might multiply corporations ad infinitum, until all personal industries and pursuits would be swallowed up and all individual liability cease. The law does not encourage such tendencies and is not so lavish of her favors. We are strengthened in our conclusions on this point by what may be properly regarded as a legislative construction of the law in question, under which this corporation claims to have been established. Section 677 of the Revised Statutes, containing the provision referred to, is but the re-enactment of an original act passed in 1855. Subsequently to the passage of this act, in 1857, with a view doubtless to extend the privileges granted by the act, and, as it were, to enlarge its scope and intendment, the Legislature passed another act for the purpose, as therein declared, “ of promoting the love and practice of the fine arts.” This last act now constitutes Section 737, R. S. By the “ fine arts ” is meant, according to the universal acceptation of the term, music, painting, sculpture, etc. If the first act of 1855 was not sufficient to embrace such objects, if science could not and did not include these, we cannot readily conceive how it could embrace “ rifle shooting,” and authorize the incorporation of .rifle clubs. Surely, music and painting and sculpture are nearer a kin to science than rifle practice or rifle shooting, and societies for the promotion and encouragement of the former present a better claim to a scientific purpose” than the latter. Yet the Legislature virtually declared, by enacting the second act, that the. first was too narrow, too limited in its terms and provisions to embrace these fine arts.

The Crescent City Rifle Club never had a corporate existence. To give it or decree it one would be to pervert the plain intent of the law.

Reaching this conclusion, we must regard this club as a voluntary association of persons, and their rights and responsibilities must be tested and determined by the same rules that apply to individuals or members of a private society. Thus, the use of the club grounds and the club building and their appurtenances belonged jointly to the individual members, and such joint proprietorship imposed correlative duties and responsibilities.

á. A great deal of testimony was taken that had little or no bearing upon the real issues involved in the case, and many bills of exception appear in the record embodying the objections to its admission. These objections went mainly to the effect of the evidence, as held by the judge ■a quo, though much of it was wholly irrelevant.

The conclusion we have come to touching the merits of the case, and the disposition we shall make of it, render it unnecessary that we should pass upon these various bills. The salient facts of the case, and upon which our conclusions mainly rest, summarized from the statement heretofore given, are these:

That the bear was accepted by the rifle club as a prize to be shot for under the auspices of the club, and to raise a fund for the purposes of the club; that it was shot for, and subsequently carried to the club grounds by the direction of a member of the club and one of the defendants; that it was kept there and fed there for nearly three months by an employee of the club, and the expenses for its keeping and feeding paid for by the treasurer of the club, and an account of such expenses submitted to the governing committee of the club, of which some of the defendants were members; that it was seen from time to time at the club house by members of the club and by all of the defendants save one; that no one objected to his being there; that whilst thus kept on the club grounds in charge of a keeper, he broke loose, attacked and wounded Mr. Yredenburg, who died of the wounds inflicted.

The Code declares, “ that every act whatever of man that causes •damage to another obliges him by whose fault it happened to repair it.”

That a person is. responsible for the damage resulting from "his negligence or imprudence.” That he is answerable, not only for his own ■acts, but for the acts of persons for whom he is responsible, and of things in his custody. C. C. 2315, 2316, 2317, 2321.

The law upon this subject is to the same effect under every enlightened system of jurisprudence.

Thus a distinguished writer on this subject has said:

The mere keeping of an animal of a fierce nature, such as a tiger dr bear, or dog known to be wont to bite, is unlawful, and therefore, if any person is bitten or injured by such an animal, an action is maintainable against the person who keeps it.” Addison on Torts, pp. 22, 230.

And again:

“ The owner oí wild and savage beasts, such as lions, tigers, wolves,’ bears, etc., if he neglects to keep them properly secured, is liable for injuries committed by them according to their nature, without any evidence that he knew them to be ferocious, or that he was negligent in the mode of keeping them, since he is bound in ordinary prudence, to know that fact and to secure them from doing harm.” Sherman and Bed-field on Negligence, $188.
“ One who harbors a dangerous animal on his premises, though not his owner in any sense, is nevertheless responsible for injuries committed by it while on or near his premises, to th-e same extent as if he owned it.” Sherman and Bedfield on Negligence, pp. 227, 228.

Mr. Justice Blackburn, of the English Oourtof Exchequer, thus lays down the rule on this subject:

“We think the true rule of law is, that the person, who for his own use or pleasure brings on his land, and collects and keep there any thing likely to do mischief, if it escapes, must keep it at his peril, and if he does not do so is prima facie answerable for all the damage, which is the natural consequence of its escape. * * * This is, we think, established to be the law, whether the things so brought be beasts, or water, or filth, or stenches.”

Fletcher vs. Rylands, Court of Exchequer, 1 Law Reports, p. 263; see, also, Hale’s Pleas of the Crown, vol. 1, 430; May vs. Bourdetts, 9th Adolphus & Ellis (3 Q. B.) U. S. 101; Earl vs. Van Alstein, 8 Barbour, N. Y. 630; 41 Cal. 138.

These principles thus enunciated are sound and have our full approval.

There is a recognition of their spirit in an ordinance of the City of New Orleans on the subject, which declares:

“No wild or ferocious animals shall be kept within the limits of the city, on the premises of individuals, or in menageries, unless such animals be under the charge of an armed guard day and night.”

Leovy’s City Laws and Ordinances, Art. 703.

And it is to be noted that this bear was kept on the club grounds, within the city limits, in open disregard of this ordinance. .

The fundamental principle on which the liability of the defendants rests, is concisely expressed in the following legal maxim, that is as old as the law itself and recognized in every known system of jurisprudence: “ Sic ntere tuo ut alienum non laeclas.”

Proprietors or co-proprietors of lands or houses must not permit their property to be put to such uses as to cause injury to others, whether by being made a refuge' for noxious animals or a magazine for gun powder, dynamite or other explosive substances, or as a generator of foul and pestilential vapors destructive of health. And there was a tacit, though clear recognition of this principle by the defendants themselves, or some of them, in calling a meeting after Mr. Vredenburg’s death to raise contributions for the relief of his family. No liability was openly avowed or intended to be acknowledged on account of this sad affair by such action, but there was a latent sense of responsibility evidently felt, which found expression in the language of one of the defendants, when testifying as a witness on the trial of the case, and wlm said by way of explaining the motive that prompted the proposed assistance, “ that it was on account of the accident occurring on the grounds of the club.”

; It is, however, urged in behalf of one of the defendants, W. J. Behan, as sufficient to free him from any liability, that he did not know that the bear was on the premises. Under the circumstances of this case we cannot give such effect to this fact; npr do we consider it as having any real bearing on the question of his liability.

This club was composed of many individuals; it had a complete organization, with regular officers, governing committee, keeper of the grounds, etc. The defendant referred to was the head or chief of the association. Of course from the nature and objects of the organization it was not contemplated, nor was it possible that all the members thereof* the owners of the club-house and lessees of the grounds should occupy the property; and, therefore, it was necessarily placed in the control and keeping of employees of the club, who were charged with its; management, and with the proper police and superintendence of the club-house and grounds, and generally with the same duties that the owners themselves were subject to, and who in this respect represented the owners, who were legally responsible for the acts and omissions of such keeper or keepers. Nor can the fact of knowledge or ignorance of the employers touching such acts or omissions on the part of the employee, restrict or enlarge that responsibility. It is a case where the-principle of respondeat superior applies to its full extent.

A reference to the authorities on this subject leave no room for doubt on this point. Thus a distinguished law writer has declared that “the master is liable for the acts of his servant, not only when they are directed by him, but also when the scope of his employment or trust is such that he has been left at liberty to do, while pursuing or attempting to discharge it, the injurious act complained of. It is not merely for the-wrongful acts he was directed to do, but the wrongful acts he was suffered to do, that the master must respond.”

• “ The wrong for which the master shall respond need not be an intentional wrong; indeed, the liability is commonly all the plainer if it is not. Every man owes to every other the duty of due care to avoid injury ; and whether he manages his business in person or entrusts it to others, he must, at his peril, see that this obligation is observed. If another has suffered an injury through the neglect or improper management o.f the business, the right of action arises, irrespective of the agency by which the business was conducted.”

“ It is immaterial to the master’s responsibility that the servant at the time was neglecting some rule of caution which the master had prescribed, or was exceeding his master’s instructions, or was disregarding them in some particular, and that the injury which actually resulted is attributable to the servant’s failure to observe the directions given him. ' In other words, it is not sufficient for the master to give proper direc-. tions, he must see that they are obeyed.” Cooley on Torts, pp. 534, 538, 539, 540, 549, 562; Sherman & Redfield on Negligence, § 59; 14 Howard, 468; 15 Ark. 118; 36 Vt. 248; 11 Minn. 277; 98 Mass. 567.

The acts and negligence on the part of the keeper of the grounds and ' the club-house, first, in receiving the bear on the premises, keeping him there for months, and suffering him to get loose, were all within the scope of his employment, and related directly to the duties with which he stood charged under his employment to properly manage and police the property, and bound him to exclude therefrom all things that might cause injury to others, or if anything dangerous was admitted, then at least to use such care and precautions as to render any injury therefrom impossible, and this brings the case clearly within the meaning and intendment of the authorities we have cited.

5. The defendants, however, claim their discharge from liability by reason of the discontinuance of the suit as to some of the original defendants, and the conventional release of others in consideration of the payment of stated amounts, contending that the legal effect of this was to discharge all, and cite Art. 2203 C. C., which declares that the remission or conventional discharge of one of the co-debtors in sólido, discharges all the others.” They say that the effect of the discontinuance entered, was, to suffer the demand, as to such parties, to prescribe, and those against whom.the suit was still prosecuted, if decreed to pay the debt, could not compel their co-obligors, thus released, to contribute towards the payment of the debt or towards indemnifying those that were compelled to pay it.

Admitting that the provision of law referred to applies to solidary obligors for a cause of action ex delicto — about which the authorities are not clear, and we express no opinion — still the proposition has no force.

The conventional discharge granted some of the parties, as evidenced by the receipts in the record, contained a reservation of the plaintiffs’ rights against the remaining defendants, which reservation, by the very terms of the law, deprived such discharge of the effect ascribed to it as respects the other obligors. And we are aware of no authority that supports the proposition that a mere discontinuance of the suit as to some of the obligors released all the rest. Nor is it true that the claim against the parties, thus discharged from the suit, was extinguished by prescription, for the demand continuing to be prosecuted against a part of those solidarity charged, interrupted prescription as to all.

6. We have been pointed to an alleged error in the verdict and the pleadings taken in connection therewith, and are asked to remand the case on account of it. It is this: The verdict finds in favor of the plaintiff for a stated amount. It is urged that the causes of action set out in the petition are twofold and distinct in favor of different parties. That one demand is in favor of the widow and children, under the special provision declaring that the right of action in the deceased survives to them, and the other in behalf of the succession of the deceased, such, for instance, as the expenses of the last illness and the loss resulting to the dairy business from such illness. There was no exception filed by the defendants to such faulty pleading, but issue was joined, and they went to trial without objecting to it. This might be held a sufficient reply to their complaint as to the form of the verdict, but giving every weight to it, it is no ground for remanding the case, since all the evidence before the jury is now before us, and we can give effect in our decree to the discrimination suggested, so far as the evidence will allow.

The damage from the injury to the business is not fixed, or made in any way certain by the evidence; and we are therefore unable to make any distinct allowance on this item; and the amount proved on account of expenses falls far short of that claimed. We must suppose that the jury was controlled by the evidence, at least to the extent of not allowing anything on any part of the demand that was entirely unsupported by proof, and what they did allow must be attributed to the cause or causes of action that there was some evidence to sustain. The total amount of the verdict must be presumed to have been awarded on the main demand in favor of the widow and minor heirs, except what the evidence shows should be applied to the claim in favor of the succession, as explained above. All that the succession is entitled to recover is on account of expenses of last illness, as stated, and under the evidence this amounts only to the sum of two hundred and sixty dollars.

7. There is, however, one grave error shown by the record, and to the prejudice of the defendants, and which, doubtless, had an important bearing on the verdict of the jury, which must be corrected.

It is this: that in his charge to the jury the judge a quo announced “ that damages can be claimed by the heirs of the deceased for the loss of his life,” to which the defendants’ counsel reserved a bill. This was clearly erroneous, as shown by frequent adjudications of this Court, which, in effect declare “ that an action for damages caused by the killing of a human being cannot be maintained.”

Hubgh vs. N. O. & Carrollton R. R. Company. 6 An. 495.

Earhart vs. Carrollton R. R. Co., 17 An. 244.

Frank vs. Same, 20 An. 26.

McCubbin vs. Hastings, 27 An. 716.

The act of 1855, amending article 2315 C. C., expressly limits such right in favor of the widows and minor heirs to the right of action which the deceased would have had, had he survived the injury, and it cannot be extended beyond this. Besides, on referring to the petition, it will be seen that this was the only right of action sought to be exercised in this case, and the demand was positively limited to this,

We must presume that this erroneous instruction to the jury influenced greatly their conclusion as to the quantum of damages allowed. The person killed was shown to have been in the prime of manhood, healthy and vigorous, and with every prospect of longevity ; and his life might, reasonably, have been "deemed inestimable to his wife and little children, and we must conclude that a large part of the sum allowed by the verdict was purely for this consideration. Satisfied of this, we are constrained to reduce the amount of the verdict, though urged on this account to remand the case, which we must decline doing, as the entire evidence is before us and we are authorized to make the correction. We are the more prompted to this course by the consideration, that there is nothing in the record, nor in the nature of the demand and the evidence in support of it, that, in the least, involves any turpitude on the part of the defendants, or reflects on their character as gentlemen. Their liability results from a strict application of legal principles, an application just and proper, but one that at the same time may be regarded, to some extent, as technical.

Their fault was that of imprudence and negligence, nothing more. For these reasons, we deem it just to reduce the amount of the verdict to $7,500, which must be credited with the amounts shown to have been paid.

8. The conclusions which we have reached touching the main action and the questions connected therewith, virtually dispose of the injunction case.

Had the injunction been allowed, and tried on its merits, it would have been dissolved, as we have disposed of all the questions involved in the case adversely to the pretensions of the plaintiff in injunction. There might be a question as to whether the allegations of the petition did not, on their face, show a prima facie right to enjoin; but we think it best for the interests of all parties that this vexatious litigation should terminate, and will shape our decree accordingly.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from in case of Mrs. Y. Vredenburg vs. W. J. Behan et al., No. 7573, on the docket of this Oourt, be amended by reducing the amount therein decreed against the defendants W. J. Behan, John Glynn, Jr., George Howe, Dudley Selph, William Arms and William Pierce to seven thousand five hundred dollars, two hundred and sixty dollars of which said sum is to be paid to the succession of W. H. Yredenburg, deceased, and the balance to the plaintiff as the widow of said deceased and as tutrix of his minor heirs; and as thus amended it be affirmed, defendants to pay costs of the lower court and plaintiff of the appeal in said case; and it is further decreed that the judgment in ihe case of W. J. Behan vs. Mrs. V. Vredenburg et al., No. 7917, be affirmed, plaintiff therein to pay costs of both courts.

Dissenting Opinion.

Bermudez, C. J.

Whatever may be the responsibility which attaches to owners of property for the wrongful use of the same by employees entrusted with the keeping thereof, I do not think that it fastens when the owner had not the exclusive control of the property, or having such, was absent, unaware of such use, unable to prevent it, and when such use was not done in, but out of, the cours.e of. the legitimate functions or line of the duties of such subordinates, and was not sanctioned and ratified, and could not even have been foreseen.

I think the allowance too large, unless the fact of death, which is entitled to no consideration, assist in the computation and assessment.

I therefore dissent from the decree.

Poché, J.

I dissent from the opinion of .the majority in these cases, and reserve my right to give my reasons in writing at a later day.

Dissenting Opinion.

Poché, J.

It is admitted by the majority that the district judge committed a grave error to the prejudice of the defendants in charging the jury, “ that damages can be claimed by the heirs of the deceased for the loss of his life;” and that this errur had doubtless an important bearing on the verdict of the jury.

It is shown by the record that the jury did not mention in their verdict the elements of damages which they considered, and on which element or causes they predicated their finding; and nothing precludes the supposition that they may have based, their verdict exclusively on the damages caused by the loss of the life of the deceased; in which case their verdict would necessarily be set aside and annulled.

In reviewing their verdict we, therefore, grope in darkness as to what error was committed by the jury, so as to be justified in even cutting down the amount allowed by them to one-half. I, th'erelore, think that under such circumstances, the case should have been remanded for trial according to law, as it appears, under the erroneous charge of the judge, that the trial which, took place was not conducted according to law.

I also earnestly differ from the opinion of the majority in visiting liability on W. J. Behan, who is shown to have been absent from the State when the bear, after it had been shot for and thus disposed of by the club, was brought back to the club grounds and kept there until the day of the accident without Behan’s knowledge or consent; and, therefore, without any opportunity on his part to protest against the presence and keeping of the animal on the grounds and thus to prevent the catastrophe which brought about this litigation.

Eor these reason I dissent from the opinion and decree rendered in this case.

On Application nor Rehearing.

Todd, J.

In the body of our opinion in this case, we stated that the amount which we allowed the plaintiff was subject to a credit for the sums shown to have been paid after the judgment of the District Court was rendered. We, however, omitted to state in our decree,the total amount of this credit, and this omission should be corrected.

We do not think that the defendants, against whom our judgment is rendered, should be compelled to pay any costs of the District Court accruing by reason of citations issued against some of the original defendants, who were-never actually cited, and growing out of the proceedings against others who were subsequently discharged or released by the plaintiff.

It is, therefore, ordered that our previous decree be amended and corrected by declaring the amount thereof ($7500) subject to a credit of six thousand five hundred and eighty dollars ($6580), being the aggregate of the sums paid by some of the original defendants on account of the, judgment of the lower court, and that the defendants named in our decree pay the costs of the District Court, except such as grew out of citations and proceedings exclusively against those of the original defendants who either were not actually cited or after citation and judgment were discharged, which costs, with the costs of appeal, are to be paid by plaintiff, and that the decree heretofore rendered as thus corrected and amended be reaffirmed, and a rehearing refused. .

Poché, J.

For the reasons given in my dissenting opinion, I think that a rehearing should have been granted in this case, and I therefore-dissent from the opinion of the majority in refusing the rehearing herein, prayed for.

Bermudez, C. J., concurs.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 8029.
    City of New Orleans vs. Christopher Meister.
    Article 206 of the Constitution does not affect the legality of tlie License ordinance of the-City of New Orleans, No. 6253, passed on the 23rd December 1879, under the laws then in force, and imposing certain municipal license taxes. Decision in City of New Orleans vs. Vergnole, 33 An. 35, affirmed.
    The Administrator of Finance of the City of New Orleans has no authority to reduce in-some particular cases the amount of the license tax fixed by the city ordinance.
    AppEAL from the First City Court of New Orleans. Slcinner, J.

      S. P. Blanc, Assistant City Attorney, and Geo. Denegre for Plaintiff and Appellee. .

      A. J. Lewis for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Defendant, a retail dealer in groceries and liquors by the glass, appeals from a judgment condemning him to pay a city license of #75 on hiS business for the year 1880, and he relies upon the following-defenses:

1st. That the license demanded exceeds that imposed by the State.

2d. That the license is not imposed in proportion to the profits realized.

3d. That the license is not equal and uniform.

4th. That by reason of the destruction of the levees and wharves, through the ravages of the Mississippi River, in the vicinity of his business establishment, commerce was driven thence to other portions of the city, by means of which his business was materially impaired, in consequence of which he was entitled to a reduction of one-half of the license claimed of him, as was done in the case of several of his neighbors engaged in the same business, but which was unjustly refused to him. The defense embodied in the first three points is identically that which was made in the case of the City vs. Julien Vergnole, recently decided by this Court, 33 An. 35, and disposed of adversely to the defendant, and is, therefore, untenable.

5th. Plaintiff, having introduced in. evidence the city ordinance imposing a license of $75 for the year 1880, on all retail dealers in groceries and in liquors by the glass, defendant offered to prove by testimony that for the reasons enumerated in his fourth ground of defense the license of several of his neighbors had been, reduced one-half, and that the same privilege had been denied him. Plaintiff objected to such, testimony as irrelevant, and it was admitted over his objections.

In our opinion the judge erred; he should have rejected, such testimony, which at most proved a dereliction of duty on the part of the Administrator of Finance, who in a proper case might be amenable therefor.

In the face of a positive city ordinance imposing a fixed license on all persons engaged in the same trade, we know of no authority in the Administrator of Finance, or. in any other city officer, to reduce said license in any case or in any emergency. We have been referred to no act or ordinance of the city.authorizing such reduction, and we must enforce the city ordinances as they are proven.

The whole defense is groundless, and the judgment of the lower court is therefore correct.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed at appellant’s costs.


author: Todd, J.

text:
    No. 7992.
    City of New Orleans vs. Eclipse Tow-Boat Company.
    The Ordinance of the City of New Orleans, imposing a license tax upon the owners of towboats running on the Mississippi river to and from the Gulf of Mexico, does not impose a duty upon tonnage; nor is it a regulation of commerce. Such Ordinance is not, therefore, in conflict with the provisions of the Constitution of the United States on these points. The authorities on the subject are reviewed at length in the Decision.
    Nor is the same Ordinance obnoxious to the restrictions of the State Constitution of 1879. Decision in City vs. Yergnole, 33 An? 35, reaffirmed.
    APPEAL from the Third District Court for the parish of Orleans. Monroe, J.

      8. P. Bldnc, Assistant City Attorney, for Plaintiff and Appellee.

      T. Gilmore & Sons for Defendant and Appellant:
    Eirst — An ordinance of the City Council, levying a license tax upon vessels enrolled and licensed under laws of Congress, is in conflict with the Constitution of the United States and void.
    Second — A license tax upon tow-boats is unconstitutional under Art. 118 of the Constitution of • ’ 1868, because not uniform upon all vessels.
    Third — An ordinance of the City Council, inconsistent with the provisions of the Constitution of 1879, cannot be enforcod.
   The opinion, of the Court was delivered by

Todd, J.

The City of New Orleans sues defendant for the amount of a license tax ($500), with interest and costs, for the year 1880, imposed by ordinance of the City Council, of the 23d of December, 1879, upon “ every member of a firm or company, every agency, person or corporation, owning and running tow-boats to and from the Gulf of Mexico.” The defendant company is the owner of tow-boats, which are enrolled and licensed for the coasting trade, pursuant to acts of Congress, and employed in towing vessels between the City of New Orleans and the Gulf. The grounds of defense are:

1st. That the license tax in question is a duty upon tonnage and a regulation of commerce, and that the ordinance imposing it is, therefore, in violation of Art. 1, Sec. 8, Par. 3, of the Constitution of the United States, which provides that Congress shallhave power “ to regulate commerce with foreign nations and among the several States, and with the Indian Tribes,” and also Sec. 10, Par. 3 of the same article, which declares that no State “ shall without the consent of Congress lay any duty on tonnage.”

2d. That it is violative of the State Constitution, because the tax is not equal and uniform, nor imposed in accordance with the limitations therein prescribed, '

From a judgment in favor of the City the defendant has appealed.

The right of a man to the use of hjs property, or to pursue any legitimate calling or occupation, may be regarded as an inherent right, not derived from any positive legislation. The protection afforded by a government to the enjoyment of the right, imposes the obligation on the citizen to contribute to the support of such government, and authorizes the imposition of taxes, as the equivalent for the protection thus afforded. The objects of taxation under our present and former constitutions have been property, income and occupations. The tax upon occupations is termed a license tax, to distinguish it from the tax on property.

This power to tax for the support of the government is one of the chief attributes of sovereignty; and this power, on the part of a State, extends over all objects embraced within its sovereignty, subject only to such limitations as the State may prescribe for itself, or to the inhibitions of the Federal Constitution.

Nathan vs. Louisiana, 8 Howard, 73; McCulloch vs. Maryland, 4 Wheat. 429; Brown vs. Same, 12 Wheat. 419; Transportation Co. vs. Wheeling, 9 Otto, 273.

This being an acknowledged right of a State, any restriction of it by the only supreme authority to which it is subject, the Constitution of the United States, must be shown by the express language of that instrument, or result from the clearest implication.

There seems no necessary connection between this power of taxation in a State, and the language of the Federal Constitution invoked as a limitation on that power; and we have high authority for holding that the framers of that instrument did not construe the clause referred to ■as bearing upon the subject of this power. We read in the Federalist, which is regarded by the highest judicial tribunals as important authority on the subject of constitutional construction, and the production of Mr. Hamilton, who was disposed to construe liberally the powers of the general government, as follows:

“ That the States would possess ah independent and uncontrollable authority to raise their own revenue for the supply of their own wants; and with the single exception of duties on imports and exports, would, under the plan of the constitution, retain that authority in the most absolute and unqualified sense. And that an attempt on the part of the general government to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause in the «constitution.” Federalist, No. 32.

And, in the Passenger cases, 7 Howard, 283, the Supreme Court of the United States, through its organ, Chief Justice Taney, held:

“ That though a ship when engaged in the transportation of passengers, is a vehicle of commerce, and within the power of regulation granted to Congress, yet it has always been held that the power to regulate commerce, as conferred, does notgive to Congress the power to tax the ship, nor prohibit the State from taxing it as the property of the owner, when he resides within their own j urisdiction. That the authority of Congress to tax ships is derived from the express grant of power in the eighth section of the first article, to tax and collect taxes, duties, imports and excises; and that the inabilityof the States to tax the ship, as an instrument of commerce, arises from the express prohibition contained in the tenth section of the same article.”

The tenth section referred to, being that clause which prohibits the States from laying any imposts or duties on imports or exports except what may be necessary for executing its- inspection laws.

In the case of Transportation Co. vs. Wheeling, 9 Otto, 273, Mr. Justice Clifford, as the organ of the Court, after referring to the extract from the Federalist quoted above, and speaking of the Federalist as ever having been regarded as entitled to weight in any discussion, as to the true intent and meaning of the provisions of the fundamental law, proceeds as follows:

. From which it follows, if the writer of that publication is correct, that the power granted to regulate commerce did not prohibit,the States from laying import duties upon merchandise imported from foreign •countries; that the commercial clause (i. e. the cláuse invoked against the license in this case) does not apply to the right of taxation in either sovereignty, the taxing power being a distinct and separate power from the power to regulate commerce; and that the right of taxation in the States remains over every subject where it before existed, with the exception only of those expressly or impliedly prohibited.” These he mentions as the only prohibitions, those denying to a State to levy duties on imports or exports, except such as are absolutely necessary for executing its inspection laws and to levy any duty on tonnage without the consent of Congress.

In harmony with these decisions, it has been held that steamboats,, ships, ferry-boats, etc., are liable to taxation, as property, at their home ports. 2 Cal. 590; 39 Mo. 460; 3 Ind. 481; 9 Ala. 234; 48 Barb. 157; 16-Wall. 472; 17 How. 596.

“ A State tax which remotely affects the efficient exercise of a Federal power, is not for that reason alone prohibited.” Railroad Company vs. Peniston, 18 Wall. 5.

“ A State may impose a tax upon the capital of a corporation created by it, although the corporation is created for the purpose of towing vessels and carrying freight and passengers.” Such is the express language of the Supreme Court of this State in the case of the Union Tow-Boat Company vs. Bordelon, 7 An. 192. And, in the course of his opinion, Mr. Justice Preston, as the organ of the Court, well remarked:

“ It is said that the tax is a regulation of commerce and conflicts with the power, of Congress to regulate commerce with foreign nations, and among the several States. * * * We cannot conceive that a question can arise under the article of the Constitution of the United States quoted. All taxation upon property within one State may remotely affect its commerce with a sister State. Thus, a tax upon Stores may increase the price of merchandise brought here by merchants from abroad; a tax upon warehouses, the price of storage of produce from the Western States, and a tax upon our markets may enhance the price or perhaps curtail the quantity of supplies brought to them. Yet these taxes have never been questioned.”

See, also, 11 Mich. 43; 8 Ohio, 521; 48 Barb. 157.

And, as more closely analogous to the case at bar, it has been held “ that a State law requiring every express company or railroad company having a business extending beyond the limits of a State to take out a license is valid, for it is a tax on the business of making contracts within the State for transportation beyond it.”

Osborne vs. Mobile, 16 Wall. 479; 15 Wall. 293; 49 Ala. 404; Delaware Railroad Tax, 18 Wall. 208.

Upon a question of so much importance, and .one which has so largely occupied the attention of courts distinguished for their learning and ability, and been so extensively discussed, we prefer, simply, to cite the authorities which must command respect rather than to elaborate our own views. It suffices that we state our conclusion on this point from a mature consideration of them, and which is, that there is nothing in the clause of the Federal Constitution referred to giving Congress the power to regulate commerce with foreign nations or between the States, that is infringed by the ordinance in question, imposing the license assailed; and it would only be by a strained and narrow construction that any conflict or even any direct relation between the two could be discovered.

II. Nor can the license be properly regarded as a duty on tonnage, which is made the second ground of attack. We have shown by the authority cited that a State can levy a tax directly on a ship as property, although it may be engaged in commerce. This seems to us to be-more like a direct duty on tonnage than the mere imposition of a license on a company usiDg such vessels in their business. Besides, the very meaning of the term of itself shows that this prohibition has no direct bearing or pertinency to the question at issue.

Cooley says: “Duties on tonnage the States are forbidden to levy; the meaning of the prohibition seems to be that vessels must not be taxed as vehicles of commerce, according to capacity, it being admitted that they may be taxed like other property.” Cooley, Const. Lim. (4th ed.) 606.

III. It is urged also that the license and enrollment of the vessels-belonging to this company under the Federal laws deprives any inferior authority of the power to exact a license for the use of such vessel in their business.

The authorities do not sustain this position, but on the contrary, are in direct opposition to it.

Burroughs on Taxation, 149, 155; 16 Grat. 139; 18 How. 71; 16 B. Mon. 699; 1 Black. 603; 5 Wall. 475. '

IV. In regard to the alleged conflict between this ordinance and the-State constitution, it suffices to say that this question was before us in the case of Vergnole vs. City of New Orleans, 33 An. 35, which was a suit to enforce the payment of a license imposed by the City Council at the same time, and where the same ground of nullity was set up; and in that case we held for the reasons therein assigned that there was no provision of the State Constitution that rendered the license or the ordinance imposing it void. We adhere to that ruling.

This disposes of all the issues presented by the pleadings in the case, and finding no error in the judgment appealed from, the same is-affirmed with costs.

Eehearing refused.


author: Poché, J. Fenner, J.

text:
    No. 8204.
    The Heirs of Jacob Hoover vs. Z. York and E. J. Hoover, Executors. A. G. Ober, Intervenor.
    The fault is attributable to Appellant, in case of an incomplete Transcript, when it is by his directions that the Clerk has omitted some of the documents offered in evidence.
    Article 898, C. P., does not protect Appellant against the consequences of an incomplete Transcript and. a clearly defective Certificate of the Clerk, when he takes no steps whatever to remedy the deficiencies of his appeal before-the Motion to dismiss is submitted, ft has been the constant practice of this Court, under such circumstances, to dismiss the appeal.
    APPEAL from the Ninth Judicial District Court, parish of Concordia. Hough, J.

      James G. Leach, for Defendants and Appellees:
    On Motion to Dismiss.
    [First — The clerk’s certificate ought to show that the transcript is a full and complete transcript of the record of the case in the lower court; and when the certificate does not show that fact, the appeal should be dismissed. 21 An. 458.
    Second — The clerk’s certificate ought to show that the transcript contains a copy of all the evidence adduced on the trial in the lower court. C. P. 896.

    Third — When it appears that the appellants’ attorney would not permit the clerk to copy the entire record in the transcript, the appeal should be dismissed. 10 An. 418.
    [Fourth — After the order of appeal was taken in open court, and the term of court at which it was taken had expired, the lower court could not, at a subsequent term, and while the appeal was still pending, make any further orders in the case.

      John S. Boatner for Intervenor and Appellee:
    Where the certificate of the clerk does not show a full and complete transcript of a case as presented to the lower court, the appeal should be dismissed. C. P. 896; 21 An. 458.
    Where it appears that the attorney for appellant would not permit the clerk to copy in the transcript the entire record, the appeal should be dismissed. 16 An. p. 41; 8 An. 433.
    The clerk should certify unqualifiedly that the transcript contains all the testimony adduced on trial. Code Practice 896.
    The affidavit of the clerk annexed to the motion to dismiss in this suit, shows the defective transcript was made by the instructions of the attorney for appellant, and that the clerk is not at all to blame. Your [Honors will see also in the copy of papers called “transcript,” that, after an appeal had been granted and bond filed, the attorney for appellant took a rule on defendants in the District Court to compel them to agree with him as to what should be contained in the record, which was very properly overruled by the District Court as having then no jurisdiction of the case.
    The certificate of the clerk is evidently designedly defective, he nowhere certifies that this is a correct transcript, nor does he say that it contains -all the evidence adduced on trial in the court below, which I say is essentially necessary. Code of Practice 96 ; 16 An. 898 ; 11 An. 604; 21 An. 458. •
    I respectfully ask that the motion to dismiss be sustained and case dismissed at cost of appellant.
    Geo. S. Sawyer for Plaintiffs and Appellants.
   On Motion to Dismiss.

The opinion of the Oourt was delivered by

Poché, J.

Appellees move to dismiss this appeal for deficiencies in the record and in the clerk’s certificate, attributable to appellants’ fault. The clerk certifies, in substance, that the record contains a transcript of extracts of minutes of the court in this suit, and in other suits offered in evidence, and of enumerated documents, amounting to twenty-three in number, figuring in this suit.

But he signally fails to certify whether the copy of the record which he sends up contains all the testimony adduced on the trial of the cause, and in his affidavit, which is attached to the motion to dismiss, he informs us that the documents offered in evidence, which are not transcribed in the record, were eliminated by him at the request of appellants’ counsel, who directed him to copy only the documents selected by said counsel.

Our attention is called to a counter-affidavit filed by appellants’’ counsel, who explains his reasons for instructing the clerk as charged, and seeks to justify his course by showing that, by transcribing all the documents contained in the suits offered in evidence by appellees, the transcript would have been swelled up to some fifteen hundred pages, for which his clients, who are poor, would have been unable to pay; and in which he also urges that appellees had omitted to designate specially which portions of the records of the suits referred to had been offered by them, and that, therefore, the clerk was confused in the selection of such documents to be copied; and he further complains of the discharge by the judge a quo of a rule which he had taken on appellees’ counsel for the purpose of compelling them to make such selection of documents.

An inspection of the note of appellees’ evidence shows that they offered in evidence “ the entire record and other proceedings had and all papers filed” in two distinct suits which are fully described. It was, therefore, the plain duty of the clerk, under sections 2 and 6 of rule one of this Oourt, as amended on November 2d, 1880, concerning the omission of ordinary process of court and returns thereon, to have copied all the documents contained in the records of said suits.

He was ready to perform such a duty, when directed by appellants’’ counsel to do otherwise, and the result is a transcript which does not contain all the testimony adduced, and thus fails to give us knowledge of all the matters argued or contested below.

We find no error in the refusal of the District Judge to interfere by rule in the making up of the transcript of appeal, the sufficiency of which is exclusively within the province and under the control of the appellate tribunal.

The transcript and the certificate of the clerk are both fatally deficient, and cannot support the appeal. C. P. Art. 896; 21 An. 458; Bacas vs. Smith, Labat & Co. vs. Décuir, recently decided and not yet reported.

It is, therefore, ordered that this appeal be dismissed at appellants’ costs.

On Amplication eor Rehearing.

The opinion of the Court was delivered by

Fenner, J.

Such grave and earnest complaint is made by the respected counsel for appellants, of our action in dismissing this appeal, that we have attentively re-examined the question, without discovering how we could have acted otherwise.

The appellants have filed a transcript of appeal, the clerk’s certificate to which, is absolutely deficient in every requisite prescribed by law. It is a bald certificate that the record contains a true and correct transcript of certain enumerated documents, without the slightest intimation that it contained a complete transcript of all the proceedings ■and testimony. ’We have never encountered a certificate so grossly defective.

This certificate was notice to appellants that their appeal could not be sustained upon the transcript filed, and made it their duty to take the proper proceedings provided by law to remedy the defect.

Timely motion to dismiss was filed upon the double grounds:

1st.» That the certificate was not such as required by law.

2d. That, in point of fact, the record was diminished by the omission of important documents offered in evidence.

Notwithstanding this additional notice, no steps whatever were taken by appellants to remedy defects.

Neither at nor before the time for argument was application made for time to correct errors as allowed by Art. 898 C. P. No application was made for mandamus to compel the clerk to grant a proper certificate, i£ he had illegally refused so to do, as allowed by C. P. 899, No certiorari was asked to perfect the transcript if incomplete.

The case was submitted on the motion to dismiss andthp merits of the case without reservation. Upon inspection of the record, we discovered, not merely the grossly insufficient certificate, but also an affidavit of the clerk, filed with and made part of the motion to dismiss, and of which, therefore, appellants were bound to take notice, to the effect that the attorney of appellants would not permit him to make a full and complete transcript, but refused'to pay for such, and enjoined him to make the transcript as it was made, and not to include certain other documents offered in evidence. This affidavit was not substantially contradicted by the counter-affidavit filed by counsel for appellants, which, instead of contradicting the facts, simply assigned reasons for his action.

In this state of case as submitted, we are at a loss to conceive of any ground upon which a different decision from that rendered by us. could have been anticipated.

Leaving out of view every thing except the defective clerk’s certificate, its deficiencies being patent, and no steps having been taken to correct them, and no application having been made for time for that purpose, before submission of the motion to dismiss, the continued existence, if not the origin, of the defect was attributable to the fault of the appellants, whose duty it was to present a complete and properly certified transcript; and they were not protected by the Act of 1839, now made part of Art. 898 C. P.

It has been the constant practice of this Court, from' the date of . the adoption of that act, to dismiss appeals for this cause under such circumstances.

1 An. 171,180; 2 An. 996; 3 An. 592; 4 An. 487; 7 An. 257, 442; 9 An. 190; 10 An. 180; 11 An. 644, 604; 19 An. 261; 22 An. 83; 27 An 68; 20 An. 21,141; 21 An. 458, and cases recently decided,-quoted in our original opinion.

See specially Gillaulet vs. Marcelin, 7 An. 442.

Succession Kemp, 9 An 190.

The question before us on this application is whether there was error in the decision rendered upon the case as submitted. There was none.

Rehearing refused.


author: Fenner, J.

text:
    No. 8220.
    John A. Stevenson vs. E. L. Whitney, Tax Collector, et al.

      A Defendant, sued out of the Parish of his domicil, may legally appearand stand in judgment*
    Decisions in 31 An. 88 ; 30 An. 595, and 29 An. 194, affirmed.
    In an action of nullity of judgment on the ground that Defendant was sued out of his domicil, the record showing that the judgment was not rendered on default, and there being no - evidence before this Court to* establish that Defendant did not cure by appearance and plea the illegality of citation, the presumption of omnia rite acta must prevail and the judgment must stand.
    The reconventional demand being for less than $1000, this Court has no jurisdiction to revise the judgment rendered thereon.
    A PPEAL from the Ninth Judicial District Court, parish of Tensas. xa. Hough, J.

      L. V. Beeves and W. G. Wyly for. Plaintiff and Appellant;
    Eirst — Errors of law need not be pleaded, they may be presented by an assignment of errors suggested in the brief of counsel, or they may be noticed ex officio by the Court. 5 IN. S. 341: 2 A. 335 : 4 A. 129, 254.

      Second — A judgment should be given by reason of the law as well as by reason of the evidence ; it should never be rendered contrary to or against the law, and what the law is need not be pleaded.
    Third — A claim for taxes is not a debt — it is not suable, unless made so by statute; it is a contribution by the citizen to support the government that gives him protection, the mode and manner of levying and enforcing the collection thereof rests alone with the State, and its exercise is one of the highest powers of sovereignty. 7 A. 194; 18‘How. 272; 13 A. 90.
    Fourth — The Bevenue Laws of the State (Act 96 of Acts of 1877; Acts 77 and 107 of the Acts of 1880) confer no power on the courts to entertain suits for collection of taxes in the country parishes; on the contrary, they seem to confide that duty solely to the Executive Department of the government; and by the terms of article 210 of the Constitution tax collectors are forbidden to sue.
    Fifth — The levying of taxes, and providing the mode of collecting them, belong exclusively to the political department, and the enforcement of the revenue laws belongs to the Executive Department, the tax collectors and all revenue officers being employees of that department. “Th'e functions of the departments of government are kept distinct, and the Executive cannot divest judicial process. But the assessment of taxable property,' and the collection of taxes, are legal proceedings or process, but not judicial proceedings or-process.” (See Union Towboat Company vs. Bordelon, 7 A. 194, 377; 8 A. 472; 18 How. 272; 13 A. 90 ; Act 96 of Acts 1877; Acts 77 and 107 of Acts 1880 ; Article 210 Constitution of 1879.)
    Sixth — The collection of taxes not being a judicial function, except only so far as made such by special statutes, the courts “ cannot usurp any greater control over this business than is imposed on them by law. In the absence of statutory authorization they are without jurisdiction of the matter ratione materice.” (See 13 A. 90, a case in principle directly in point).
    Seventh — ‘‘ The consent of parties cannot give jurisdiction, and all courts before whom such an unauthorized controversy is brought, must decline ex officio any order which would recognize a right to sustain the case. It matters not, therefore, that no exception has been filed, * *; there being no express law authorizing him to contest.” etc. (See 13 A. 90,. the language of which we quote, because that case, though different, depended upon the same principle that this does, to wit: to what extent can the courts act in a statutable remedy, not a common law remedy.)
    Eighth — The suability of a claim for taxes is a question of law, not of fact; therefore it need not be alleged, nor set out in an assignment of errors. It will be noticed ex officio by the Court. This principle was recognized by this Court in State vs. Bank of Louisiana, 5 N. S. 340, 351. See, also, 5 M. 623 ; 2 A. 488, 492.
    Ninth — Immovable property cannot be legally sold for taxes by the sheriff under a fi.fa.; he can only sell it as ex officio tax collector by giving the notice and making the publication in the form prescribed by section 37 of Act 77 of 1880.
    Tenth — The constitutional ordinance for “ Belief to Delinquent Taxpayers ” remitted all interest, penalties and costs till 1st January, 1881; consequently the sheriff was properly enjoined by us from selling our property on 5th January, 1880; under the fi. fa. which allowed interest on the taxes from 1st January, 1877. Nor could he sell without the right of redemption as was attempted, in contravention of article 210 of the Constitution.
    Eleventh — It was not necessary to plead legal objections — errors apparent on the record. 5 N. S. 340, 341.
    Twelfth — An injunction, though not maintainable on the allegations of the petition, will not be dissolved, where it is manifest a new writ should issue, if the one sued out be dissolved. 2 A. 488, 492.
    Thirteenth — This Court should not be controlled by conjectures and presumptions in determining h grave question of jurisdiction for want of a legal citation. It should not relax the rule for years imbedded in our jurisprudence that in reference to the adequacy of citation nothing is left to presumption. No one is presumed to have waived his legal rights in this regard.
    fourteenth — "Whether there was a waiver of citation or not by appearance and plea, is a question of fact not raised in the answer and upon it the parties did not go to trial below. Therefore, justice would require that the case be remanded upon this point, if our other legal objections are not good.

      H. B. Steele and F. F. Farrar for Defendants and Appellees:
    first — "Want of jurisdiction ratione personce is not a matter of public order. It can therefore be waived. C. P. Arts. 93, 333, 335; Pupuy vs. G-reffin, 1 N. S. 201; f leming vs. Hiligsberg, 11R. 77; flower vs. Hagan, 2 L. 226; Joccoton Exception de Procódure, pp. 31 to 59; D. lib. v. 1.1,1.1, 2 and 5; O. Kb. IH, to 13,1. 4.
    Second — There is no conflict between Art. 162, O.P., as amended by the Act of 1861, and Arts. 93, 333 and 335; and that amended article is prohibitory only in so far as to invalidate agreements made as to the election of domicile for the purpose of being sued. Jexvs. Keary, 18 A. p. 89; Marqueze vs. LeBlanc, 29 A. 194; School Board vs. Weber, 30 A. 595; Phipps vs. Snodgrass, 31 A. 88.
    Third — The jurisprudence to the contrary, established by the Ludeling Bench, and quoted in plaintiff’s brief, never had any foundation in law or in reason.
    fourth — Art. 376, C. P., was repealed by the Act of March 20th, 1879, which is reproduced in the Revised Code of 1870 as a proviso to Art. 375. Its reappearance in the Code of 1870 is due to the carelessness or stupidity of its compiler.
    fifth — The ordinance for the relief of delinquent taxpayers, passed by the late constitutional convention, has never had any force or validity whatever, for the reason that it was not submitted to the people for their ratification or rejection, and, that the convention had no power of legislation, and, indeed, no powers whatever except those defined in the legislative act, under whose authority it was convoked. 'Jameson on Constitutional Conventions, §§ 415-418, and 479, 520; Cooley on Constitutional Limitations, 4th Ed. p. 41.
    Sixth — Conceding its validity, there is nothing in that ordinance which annuls any judgment obtained by the State for taxes, or which suspends the execution on the principle of such a judgment.
    Seventh — Execution of such a judgment between January 1st, 1880, and January 1st, 1881, could have been suspended by injunction only as to the interest, costs and charges therein decreed, and the injunction, even if granted, would have to be coupled with the proviso that it should fall and cease to be operative on January 1st, 1881, unless prior to that date the principal of the judgment .was paid.
   The opinion of ihe Court was delivered by

Fenner, J.

This is an action for nullity of a judgment, coupled with a demand for an injunction to restrain its execution.

We quote from the petition the sole ground of nullity alleged, viz: That under and by virtue of the provisions of the constitution of 1868 and of the articles 162 and 163 of the Code of Practice, the said judgment, as rendered, is an absolute nullity for the reason that said judgment was not rendered by a judge having jurisdiction over the place where your petitioner has his domicil and place of residence.”

Plaintiff lived in the parish of Iberville. The suit, in which the judgment attacked was rendered, was brought in the parish of Tensas. Citation was sent to the parish of Iberville and domiciliary service was there made on plaintiff. Upon the sufficiency of this citation we are not called on to pass, because, from the evidence presented in this record, we are not able to say what further proceedings took place in the suit and whether any deficiency of citation may not have been cured by appearance and plea. The records of the suit is not offered in evidence. The note of evidence shows that plaintiff in injunction offered in evidence only the petitions, citations and returns thereon, judgment and writ of ñ. fa., etc. Nothing indicates that these constitute the entire record. A reference to the judgment so offered shows that it was not rendered on default. The judgment reads: “This case having been called and tried, and after hearing the pleadings and evidence, and the law and evidence being in favor of the plaintiff, it is, by reason thereof, ordered, adjudged, etc.”

"Without a violation of all rules of proceeding, such a judgment could not have been entered in absence of appearance and plea, and the presumption omnia rite acta, compels us to assume that such existed. Under these circumstances the ground of nullity set up by plaintiff cannot be sustained. Want of jurisdiction ratione personae, resulting from citation before a judge other than that of defendant’s domicil, is waived by appearance and plea other than by exception declining the jurisdiction, and, when so waived, does not affect the validity of the judgment. C. P. 93. The contrary jurisprudence established for a time by the Court presided over by Chief Justice Ludeling, was not, in our opinion, well founded, and has been reversed by our immediate predecessors in several decisions.

Phipps vs. Snodgrass, 31 An. 88; also 29 An. 194; 30 An. 595.

The reasoning of the Court in the case of Phipps vs. Snodgrass is unanswerable, and we fully approve the rectification, there made, of our jurisprudence. This disposes of the action of nullity and of the injunction founded thereon.

The other objections-to the proceedings urged in brief of counsel cannot, as a matter of course, be considered in the action of nullity, not having been pleaded. Indeed, we infer they are urged solely in opposition to the reconventional demand of the defendant. This, however, is for less than one thousand dollars, and we have no jurisdiction to revise the judgment rendered thereon.

Dean vs. Clark, 5 An. 105.

Tardos vs. Toulon, 14 An. 429.

The converse rule that, where the principal demand is unappealable and the reconventional demand is appealable, the latter only can be revised here, rests on the same principle, and has been frequently recognized. Vincent vs. Schweitzer, 17 An. 199; 3 Rob. 387; 10 id. 438; 11 id. 12; 15 An. 521.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from upon the demand of plaintiff against defendant be affirmed, and that the appeal from the judgment on the reconventional demand be dismissed, appellant to pay costs of this appeal.

Rehearing refused.