author: Fenner, J. Watkins, J.

text:
    No. 11,117.
    Electric Traction Company vs. City of New Orleans.
    1. In case it appears that the capital and machinery of a manufacturing establishment has only been actually employed for a part of a year, and not employed for a part of the year, an assessment for the whole of the year is erroneous.
    2. The products of a manufactory being a mere form into which the capital employed in business has temporarily passed, same are exempt from taxation as part of the capital employed in the manufacture.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Farrar, Jonas & Kruttschnitt for Plaintiff and Appellant.

      F. A. O’Sullivan, City Attorney, and H. C. Cage for Defendant and Appellee.
   The opinion of the court was delivered by

Fenner, J.

The plaintiff was at one time engaged in the manufacturing of electric traction cars and of machinery adapted thereto, and its capital, machinery, etc., were, no doubt, exempt from taxation under Art. 207 of the Constitution, which exempts “the capital, machinery and other property employed in the manufacture of ” sundry named articles, including “ machinery” and “ articles of wood.” But in March, 1891, the company closed its business and has not since been engaged in any manufacturing business. At the time of closing, it had on hand twenty-three cars which it had manufactured and which remained unsold. In 1892 these cars were assessed for taxation, and the sole question in this case is whether they are exempt under Art. 2 7.

While the business of manufacturing continued, it might well have been claimed that the unsold products were a mere form into which the capital employed in the business had temporarily passed and were therefore exempt as part of the capital employed in the business of manufacturing.

But when the business of manufacturing ceased, we fail to see how these ears, or any other capital, machinery or property which had been employed therein, could be any longer exempt. They are certainly no longer “ capital, machinery and property employed in the manufacture ” of anything. The Constitution does not say that “capital, machinery and property” which was once employed in manufacture shall be exempt as long as it has not been sold. The title to and motive for an exemption rests on the fact of actual employment in manufacturing. Hardly any one would claim that the land and building formerly employed in the business would be exempt after the business ceased; and we do not see how the machinery or other capital or property could have any greater claim to exemption. They all rest on the same basis, and we are clearly of opinion their exemption ceased with the cessation of their employment in manufacturing.

It is to be borne in mind that these cars were never exempt because of their being manufactured products; if they had been, the exemption might continue until they had been disposed of. But they had no claim to exemption, except on the ground that they Mrere a part of the capital employed in manufacturing. When the business of manufacturing ceased, there was no longer any capital so employed, and these cars, like the rest of the capital, property and machinery, lost their exemption and passed into the domain of taxable property.

It is therefore adjudged and decreed that the judgment appealed from be avoided and reversed, and that there be judgment against the plaintiff and in favor of defendant dissolving the injunction and rejecting plaintiff’s demand at its cost in both courts.

On Rehearing.

Watkins, J.

In our original opinion it is erroneously stated that assessment complained of was made in the year 1892 — the suppression of the plaintiff’s business having occurred in March, 1891. This error was possibly superinduced by a statement to that effect which appears in the city attorney’s brief — the averment of plaintiff’s petition being that the property that is alleged to be exempt was assessed for taxes during the year 1891.

On theory of our opinion the unsold products of plaintiff’s manufacture, being11 amere form into which the capital employed in business had temporarily passed, were therefore exempt, as pare of the capital employed in the business of manufacturing;” at least so long as the employment continued. Therefore, inasmuch as the business of manufacturing cars ceased only in the month of March, 1891, the xemption continued- to that date at least.

Consequently we Rave a question of tax exemption that is res nova —liability for taxes existing for one portionof the year 1891, and the property being exempt for a portion of the year. There is no means of determining such a question provided by the law. But, inasmuch as it appears from the record that the plaintiff used diligent efforts, immediately subsequent to the suspension of its business, to dispose of the cars, we think it but just and reasonable that the exemption of same should be extended to the remainder of the year 1891.

Certainly an assessment of this property for the year 1890 was erroneous, and a portion of the year 1891; and we think under the circumstances of this case the ends of justice would be best subserved by sustaining the exemption and perpetuating the plaintiff’s injunction. This conclusion results necessarily in overruling our former decree — though not changing the principles of law announced in the opinion.

It is therefore ordered, adjudged and decreed that the judgment and decree heretofore rendered be set aside and annulled; and it is now ordered and decreed that the judgment appealed from be affirmed.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 11,255.
    John Fitzpatrick, Mayor, Etc., vs. D. S. Gaster, Superintendent of Police.
    1. Section 6 of Act 63 of 1888 authorizes the police hoard of the city of New Orleans to appoint a superintendent of police and other subordinate officers of the force, and, with the sanction of the mayor, to promulgate all rules, regulations and orders to the police force through the superintendent.
    2. Section 16 thereof provides that the police board, in furtherance of the police government, and for promoting and perfecting the police discipline of officers and subordinates of the police force, are empowered in their discretion, to enact, modify and repeal, from time to time, orders, rules and regulations of general discipline.
    3. The powers and duties imposed are essentially and altogether different — those of the former relating to general rules governing the force, while those of the latter relate td police government and discipline. Of the latter, the statute has given the police board absolute and discretionary power, entirely free from the sanction and control of the mayor.
    APPEAL from the Oivil District Oourt for the Parish of Orleans. Théard, J.

      E. A. O’Sullivan, Oity Attorney, for Plaintiff and Appellant.

      F. O. Poché and E. W. Huntington for Defendant and Appellee:
    1. Under Act No. 63 o£ 1888 tile police board created thereby is vested with all “the powers and dirties connected with and incident to the police department and police discipline of the city of New Orleans. Sec. 1.
    2. The true and clear purport oí Act 63 of 1888 is to provide for a complete reorganization of the entire police force of the city of New Orleans, by withdrawing from the Mayor and Oity Council the power of appointing and controlling the force, and by conferring that power to the police board created by the statute. 41 An. 158.
    3. The intent to invest the police board with the exclusive power to organize and manage the police force having been ascertained to be the real object of the statute, it must be followed, though such construction may seem contrary to the letter of some provision or section of the statute. Potter’s Dwarris on Statutes, etc., p. 144; 5 N. S. 140; 16 La. 267; 8 N. S. 429 ; 2 An. Ill; 7 An. 65; 9 An. 165; 777; 17 An. 277.
    4. The safest means of discovering the true meaning of the law is to ascertain: (1) The reason of the law. (2) Its object. (3) The means of carrying out the object proposed. Dwarris on Statutes, etc., p. 133; 33 An. 709.
    5. Statutes must be interpreted according to the intent and meaning, and not always according to the letter. Dwarris on Statutes, p. 144; 30 An. 982; Civil Code, Arts. 16 and 18; 5 An. 516.
   The opinion of the court was delivered by

Watkins, J.

This is an appeal from a judgment dissolving an injunction sued out by the mayor of the. city of New Orleans, for the purpose of prohibiting the superintendent of police from executing and carrying into effect a certain order of the Police Board of said city, without first procuring the sanction and approval of the mayor.

The case, as stated by the city attorney in his brief, is as follows, viz.:

“ On the 25th of January, 1893, the Board of Police Commissioners passed a resolution ordering and commanding the superintendent of police, D. S. Gaster, to remove or change the police officers assigned to the various recorders’ courts, under A.ct No. 90 of 1884, every thirty days. The resolution was duly adopted, but did not receive the sanction of the mayor; on the contrary, the said mayor, believing that to put the said resolution into effect would be detrimental to and destroy the efficiency of the officers detailed to serve at the recorders’ courts, protested against the same being put in force. The desire of the mayor was complied with, and the execution of the resolution deferred until the month of March, when an effort was made by the Board of Police Commissioners to put in operation the said resolution. The mayor thereupon applied to the Civil District Court for an injunction to restrain the said Gaster and the members of the Police Board from attempting to execute the order on the grounds that the said order had not, under the provisions contained in Act 63 of 18S8, See. 6, received his sanction, and that the said order would be detrimental to the efficiency of said police force.”

The resolution adopted by the Police Board is as follows, viz.:

“That the superintendent of police shall change the patrolmen detailed as court officers in the various recorders’ courts every thirty days.”

The defence is a general denial, accompanied by the special averment that such a resolution had been by the Police Board duly enacted, and that it was their intention to enforce the provisions thereof without the sanction or consent of the mayor, unless restrained by competent judicial authority.

The question arising under this state of facts is one of law, and it is whether the concurrence of the mayor was essential to the enforcement of said resolution.

The decision of the question depends upon a proper interpretation of Sec. six (6) of Act 63 of 1888, it being the one the plaintiff particularly invokes as authority for his injunction.

On the trial in the court below there was judgment in favor of the defendant, dissolving plaintiff’s injunction and rejecting his demands, and he has appealed.

The aforesaid section reads as follows, viz.:

“The said board shall appoint a superintendent, a police surgeon, and as many captains, sergeants, corporals, clerks, operators, patrolmen and doormen, that may be requisite, and the said hoard shall, with the sanation of the mayor, promulgate all rules, regulations and orders to the police force, through the superintendent of the police force, who shall be the executive head of the whole force, and shall have the direction of said police force, subject to rules, regulations and orders of said board; provided, however, that nothing herein shall be construed as to impair, diminish or reduce the power of the mayor as commander in chief of said police force to issue such orders as might be necessary and proper for the preservation of the peace in the city of New Orleans, and promote the efficiency of said force.”

The gravamen of the controversy rests upon the italicized words of the statute quoted, viz.: “ And the said board shall, with the sanction of the mayor, promulgate all rules, regulations and orders to the police force.”

An examination of other provisions of the statute in pari materia may well be made before giving an interpretation to those of Sec. 6 —same affording an excellent guide in determining the real object the Legislature had in view in its enactment; and pursuing this theory, we find in the police law the further provisions in Sec. 16 that are, apparently, quite pertinent; and as they have been referred to by counsel of both parties, we will quote it in full.

It is as follows, viz.:

Sec. 16. “ The said Police Board, in furtherance of the police government, and for promoting and perfecting the police discipline of officers and subordinates of the police force, are empowered in their discretion to enact, modify and repeal from time to time orders, rules and regulations of general discipline, wherein, in addition to such general provisions as may be deemed expedient by said board, there may be particularly defined, enumerated and distributed, the powers and duties and liabilities of the officers, clerks and members of the police force, and wherein shall be declared the mode of appointment to office, the manner of discipline and procedure of trial, and removal from office of said officers; provided, that such laws, ordinances, orders, rules and regulations, forms and mode of procedure, shall not conflict with any of the provisions of this act.”

Galling attention to the italicized portions of the latter section, and making a comparison of same with those of Sec. 6, there can be no discrepancy discernible between them; because those of Sec. 6 declare that the police “ board shall, with the sanction of mayor, promulgate all rules, regulations and orders to the police force;” and those of Sec. 16 declare that the “ police board, in furtherance of the police government, and for promoting and perfecting the police discipline of officers and subordinates of the police force, are empowered in their discretion to enact, modify and repeal, from time to time, orders, rules and regulations of general discipline.”

Let us then see into which category the resolution in controversy falls.

The resolution simply provides that the superintendent of police shall change the patrolmen detailed as court officers in the various recorders’ courts every thirty days.

It seems quite clear that this is not a rule, order or regulation promulgated to the police force, such as that contemplated in See. 6 of the act, and which seems to contemplate a concurrence on the part of the mayor; but, on the contrary, the aforesaid resolution seems to have had for its direct and specific object the “ furtherance of the police government ” and the promotion of “ the police discipline of officers * * * of the police force” exclusively,-as directed by Sec. 16 of the statute; and such a resolution as the police board were “ empowered in their discretion to enact, modify or repeal from time to time ” as a matter of general discipline.

It seems to have been the manifest purpose of the Legislature to confer on the Board of Police Commissioners authority to adopt and promulgate all general rules, regulations and orders governing the police force generally, only with the concurrence of the mayor; but. that for the purpose of perfecting the police discipline of officers or subordinates, and for like purposes, the board could excercise their discretion unrestricted by the sanction or approval of the mayor.

When the meaning and import of a law can be ascertained from an examination and analysis of its various parts there is no occasion to examine other sources of information; though contemporaneous judicial decisions interpreting it may be examined for the purpose of determining the object and purpose, as well as the reason and spirit of the law.

And pursuing this theory we find this court had occasion, in State ex rel. Nieholls, Governor, v,s. Mayor of New Orleans, 41 An. 156, to define what it conceived to be the purpose and object of this police statute, and in the course of their opinion said:

“ A careful analysis of the act discloses that its true and clear import is to provide for a complete reorganization of the entire (police) force of the city of New Orleans by withdrawing from the mayor and City Council the power of appointing and controlling the force, and by conferring that power on the police board created by the statute.”

And in State ex rel. Denis vs. Mayor, 43 An. 107, the court, again considering this statute, said :

“ But it was deemed best for the efficiency of the police service of the city that the police department should be put under control of a police board, and, accordingly, one was created by the Legislature.”

The meaning and import, as well as the reason and spirit of the statute, are thus clearly outlined in those decisions; and the opinion then entertained corresponds with the views now expressed with regard to the particular provisions of Secs. 6 and 16 of the act. If those two sections were found to authorize and require the executive approval and sanction of the mayor, as a condition precedent to the enforcement of any and every order and regulation of the police board, in reference to the police government and the discipline of the officers and subordinates of the police force, the law would prove to be well nigh shorn of its efficacy, and its contemplated purpose and object defeated.

Our learned brother of the District Court, in an exceptionally cogent and well expressed opinion, announced similar reasons for his judgment in favor of the defendant, in which this court concurs.

Judgment affirmed.

Rehearing refused.


author: McEnery, J.

text:
    No. 11,337.
    Robert Murphy vs. Wilmam E. Murphy et als.
    No appeal lies from an interlocutory order carrying' into effect a final judgment. Said judgment can only be arrested on appeal or by information.
    We have no control over a final judgment, and will not entertain an appeal from an interlocutory decree ordering its execution and review the judgment. •
    The Supreme Court has no appellate jurisdiction over a final judgment fixing the right of parties on property and ordering a partition. It can only notice the mode of partition when brought to its attention in proper proceedings.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      W. S. Benedict and Robt. J. Dugué for Plaintiff and Appellant.

      Jérome Meunier and Armand Pilié for Defendants and Appellees.
   The opinion of the court was delivered by

McEnery, J.

This case was on appeal to this court, and the judgment of the lower court affirmed. 45 An.

The parties in the judgment were referred to a notary to effect a partition between them of the proceeds of the property ordered to be sold. The rights and interests oí the parties were fixed by the judgment.

While proceeding to effect the partition the parties disagreed as to their interpretation of the judgment which had been rendered by the Civil District Court and affirmed on appeal. In the process verbal of the notary it is stated, “ And thereupon the said Robert Murphy did call upon the said William E. Murphy to furnish a statement of the rents and revenues of said property on Marais street, and of the disbursements attending the administration thereof since 1st January, 1880; and the said Wm. E. Murphy declared that he is unable at present to furnish the said statement, and the ■said Wm. E. Murphy did thereupon present a statement of costs and charges in said suit of Murphy vs. Murphy which includes the ■charges of §340, the costs of appeal in said suit, to which item the ■said Robert Murphy objects, as he declares.

“And the said Wm. E. Murphy further declared that under his interpretation of the judgment aforesaid all the costs of said suit are to be paid by the mass, and that before a partition is made the said costs are to be reimbursed to the parties respectively; that the proceeds of sale of said property on Marais street are to be partitioned between Robert Murphy and Miss Oitye Ann Murphy, to whom the said property had been donated; that the said donation is annulled by said judgment in only so far as the rights of said Robert Murphy are concerned, and that the said Wm. Murphy has personally no interest whatever in the proceeds of sale.

“ And the said Robert Murphy denying that the said Miss O. A. Murphy has any interest whatever in the present partition, as he declares, and the parties hereto being unable to agree on account -of the contestations arising concerning the pretensions set up by them respectively, I, the said notary, have suspended these proceedings, and do hereby refer the said parties herein to the court having jurisdiction.”

Plaintiff suggested to the court the process verbal of the notary •appointed to effect the partition under the judgment and referred to that part of it above quoted. The court ordered that Wm. E. Murphy show cause why the contention of plaintiff in said partition proceedings should not be complied with. The rule was tried, and the ■court ordered a statement and account of rent and revenues, and of ■disbursements attending the administration of the property from 1st January, 1880, within fifteen days from 7th August, 1893, and ordered that the costs of appeal from the judgment ordering the partition and fixing the rights of the parties on the property, and its proceeds should be paid out.of the mass; and that as Miss O. A. Murphy was a party defendant in the partition suit, the donation to her by defendant, W. E. Murphy, was annulled only so far as it purported to affect the right of Robert Murphy as owner of one-half of the property. As to the other one-half interest in the property it is no concern of Robert Murphy or of the court in what manner Wm. E. Murphy, donor, and Miss Murphy, donee, may act.

The plaintiff appealed from this order.

From the above statement of the proceedings in the act of partition, it appears that the court was carrying into execution a final judgment rendered by it. In the course of its execution it placed an interpretation upon it which we can not, under the present stage of the proceedings, notice. No appeal can be taken from the original judgment, as it has once been on appeal and has been affirmed. No appeal can therefore be taken from an interlocutory order carrying into effect this final judgment. 30 An. 229, State ex rel. Elder vs. Judge; 27 An. 708, Whan vs. Irwin; Brodie vs. Executor, 30 An. 177; State ex rel. Remington Paper Co. vs. Judge, 46 An. (just decided).

The respective rights of the parties had been determined by a final judgment, and they can not come here by a second appeal and have the same judgment reviewed. It must be executed according to its terms. If ambiguous, it ought to have been remedied by the appeal. In the instant case there is no room for a doubtful interpretation of the judgment, and the proceedings instituted by plaintiff in his opposition to its execution in the partition proceedings is, in effect, an attack on the judgment of partition, which is not allowed in the proceedings before the notary, who is the ministerial officer of the court. Traverso et als. vs. Row, 11 L. 498.

We have no power over the final judgment, and we can only take notice of the mode of the partition under it when brought to our attention in a proper proceeding. 11 L. 498.

The appeal is dismissed.


author: Breaux, J.

text:
    No. 11,290
    Succession of R. H. Short. Oppositions to the Account of the Executor.
    Entries on the note of evidence made in the performance of his duty by a public officer in the performance of a duty are prima facie evidence of the facts stated.
    A claim for taxes was decreed due and ordered carried on the executor’s account as a debt of the succession.
    The evidence upon which the District Court rendered judgment, in so far as relates to this claim, was not transcribed in the record of appeal.
    In the incomplete state of the record, the opposition, in so far as relates to this claim, is dismissed and the rights of opponents reserved.
    Where the patient being feeble and in a nervous and delirious state required attention entirely unusual, and the services were skilfully and faithfully rendered.
    Where surgical operations were performed and extra time was devoted by the physician in endeavoring to relieve the patient from his sufferings, which were intense- — held, that the performance of the operations and the time, in addition to the regular visits were within the scope of the physician’s authority.
    The testimony of honorable physicians sustain the correctness of the judgment appealed from, in respect to this claim, and the court agrees with the District Court in the reduction made, and that in all other respects the proof fully sustains the charges made.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Henry O. Miller for the Executor, Appellant.

      F. Rivers Richardson for Absent Heirs and Tutor and Ourator ad hoc.

      Bernard McOloskey for Opponent and Appellee.

      Geo. W. Flynn, Assistant City Attorney, and E. A. O’ Sullivan, City Attorney, for the Oity of New Orleans, Opponent and Appellee.
   The opinion of the court was delivered by

Breaux, J.

The executor’s account of administration of the succession of the late Robert H. Short was opposed by legatees and creditors of the succession.

The grounds of opposition were considered and decided and the account approved by a judgment of the district court.

The city of New Orleans was one of the opponents, and claimed taxes due for 1883, upon property situated corner of Prytania and Fourth streets.

This claim was allowed by the District Oourt with interest and costs, but without privilege.

The claim is opposed before this court by the executor and the attorney of absent heirs, who contend that the judgment is erroneous for the reason that the tax lien is prescribed.

They also complain of the court’s action in permitting the filing of a document after the evidence had been closed and the case argued and submitted.

In reference to this document the record discloses that at the time the case was submitted, after argument, the court reserved the right to the city to introduce it in evidence.

In accordance with the reservation the document was admitted in evidence.

In the absence of any testimony and of any objection of record, this court presumes that the District Court properly exercised its discretion and admitted the evidence in compliance with the reservation, and after sufficient notice to all parties concerned.

Entries in the note of evidence, made in the performance of his duty by a public officer are prima facie evidence of the facts stated.

The claim is for $105.80, balance of taxes for 1883.

The tax bill is not of record.

Without it, to prove that the amount is due, on property in the name of Wormald, of which R. H. Short was the owner, the claim can not be recovered of the latter’s succession.

The court a qua correctly decided that the title which stood in Wormald’s name when the tax of 1883 was assessed had been annulled and that the property belonged to Ool. Short, who paid $450.12 on the tax bill of 1883 for $556.

The judgment also decrees that an amount is due to the city of New Orleans for the taxe.s of 1889 and 1891, with interest and costs secured by privilege.

There is no claim in the opposition of that city for the taxes of those years. The judgment is, in this respect, ultra petitem.

The claim of the attending physician, Dr. Joseph Jones, for medical services rendered during the last illness of the late R. H. Short, was carried on the executor’s account for $1000, subject to a credit of $500, amount paid on account.

The appellants contend that the amount of the judgment in his favor is excessive, and pray to have it reduced.

Dr. Jones was the family physician and the friend of the deceased.

The patient’s condition required careful medical attention.

Operations were performed requiring skill, to alleviate his sufferings. ,

He made 282 professional visits — there were day visits and night visits — he treated the patient surgically at different times and was detained a number of extra hours (beyond the professional visits necessary) in the administration of medicines and nourishment; the patient refusing to receive them from- any other hands than those of his physician.

The professional services rendered and surgical operations performed are detailed in the account sworn to as correct and proved by reference to the memoranda of visits and services kept by the physician, proved upon examination, without objection.

The patient was taken ill in January and in April was confined to his bedroom. From April until the date of his death in August, the attendance was constant; from one to twice and three times a day, and oftentimes at night; he was in a feeble and delirious state. There was a complication of diseases, requiring the skilful and faithful attention which was rendered.

Dr. Ike Scott testified that he has been a practising physician over forty years and considers the charges for fourteen operations for prolapsis of the rectum, §140, very reasonable, and that the charges for the other services are reasonable.

He considers the required attention of an hour more than a visit.

Dr. Thomas testifies that he charges §3, and night visits $5, and that for a visit requiring more than thirty minutes he would charge for extra time.

This un contradicted evidence sustains the correctness of the judgment.

We agree with the district judge in fixing the charges for each visit at $3 instead of $4 as charged, and that in all other respects the proof fully sustains the charges made.

It does not appear that the physician exceeded the scope of his authority in the number of visits he saw proper to make, in the surgical operations performed and the medical attention given to the patient.

In so far as relates to the claim of Frank Stewart, carried on the executor’s account for $100, and also opposed by the creditors and legatees, the testimony shows he bought warrants for the deceased, attended to the assessment of his property and gave other attention to his business, for which it is proved that the charge was moderate.

The claim is not stale nor prescribed. ^ They were rendered within three years preceding the death of R. H. Short.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by dismissing the claim of the city of New Orleans for the taxes of 1888, $105.12, reserving to this opponent whatever right it may have for recovering this tax.

In reference to the taxes of 1889 and 1891 the account remains unchanged but the judgment is amended so as not to include “ the further sum of $467.60, with 10 per cent, per annum interest from August 9, 1891, for the tax of 1891.”

As amended the judgment is affirmed.


author: Parlance, J.

text:
    No. 11,419.
    James A. Koehl et al. vs. Judge of Division B of Civil District Court for the Parish of Orleans.
    Where in a case of alleged nuisance caused by a business apparently lawful, the judge, ex^arte and in limine, improvidently issues an order for an immediate closing up of said business, and the facts alleged and the law do not warran such an order, and the judge, on a rule to show cause, subsequently modifies the order of injunction so that the business may be conducted according to the laws of the State and municipal ordinances, and not otherwise, and so as not to cause a nuisance to the complainants, and forbidding the person complained of from permitting the assembling of disorderly persons at his place of business; and where the facts alleged in the petition for injunction do not show that irreparable injury will result to the complainants from the modified order, the lower judge will not be compelled by mandamus to grant a suspensive appeal from the modified order and the alleged nuisance may be controlled and regulated pendente lite, under the modified order.
    y^PPLIOATION for Mandamus, Prohibition and Certiorari.
    Lazarus, Moore <& Luce and Drolla & Augustin for the Relators.

      B. Howard MeGaleb, John Q. Flynn and W. B. Lancaster for Respondents.
   The opinion of the court was delivered by

Parlance, J.

The relators presented to the judge of Division A of the Oivil District Ooart for the parish of Orleans, a petition in which they averred substantially that they are citizens, tax-payers and prop - erty owners in the radius comprised between Oanal, Bourbon, Bienville streets and Exchange alley, in New Orleans; that Otto H. Sehoenhausen is the proprietor of a concert hall or variety saloon, situated at the corner of Royal and Customhouse streets, in New Orleans, in which concert hall intoxicating liquors are sold; that said Schoenhausen has no legal permit to operate said concert hall, nor has he complied with the municipal ordinance relative thereto, and especially with Ordinance 7012 O. S. in so far as obtaining from the Mayor and City Council the permission to set up a place where liquors are retailed; that certain stated acts of misconduct and certain improprieties are there permitted, and that the noise which comes from said concert hall is of itself an insupportable nuisance; that all of said acts are contrary to law, and subversive of good order and public morals ; that in consequence of the operation of said concert hall respectable persons shun the neighborhood after nightfall, thereby causing considerable damage to the present relators and to other persons conducting restaurants, hotels, stores, etc. They alleged irreparable injury to an amount exceeding $2500 to each; they prayed for an injunction restraining said Schoenhausen from conducting or operating said concert hall.

The judge of Division A of said Oivil District Oourt granted the injunction on a bond of $2000, and the suit was allotted to Division B of said court.

The defendant in the injunction suit excepted that the petition discloses no cause of action, and that the plaintiffs in the suit are without right to stand in judgment and have no authority to represent the State or. the city of New Orleans in the premises. The defendant, reserving his exceptions, also answered by a general denial, admitting that he is the owner of the concert saloon in question. He asserted that he had obtained licenses from the city of New Orleans and the State, and a permit from the city of New Orleans prior to the issuance of the injunction; and that therefore said writ could not lawfully issue in advance of trial on the merits to suppress the same as a nuisance. He further asserted that his establishment is situated in that part of New Orleans where such establishments have existed and been carried on for years without let or hindrance from the plaintiffs or others in the vicinity; that plaintiffs are estopped by their laches, silence and inaction, and that they have damaged him in a large amount by their illegal and malicious action.

Subsequently the present relators filed an amended petition in the injunction suit, in which they averred more in detail their causes of complaint, and alleged more fully the injury to their occupations and to the rental value of their property caused by the operation of the concert hall in the manner they described; and they alleged that the concert hall is not only a common public nuisance but also a private nuisance. They alleged that neither the Legislature nor the city of New Orleans has the power to license or permit the conduct of the immoral establishment described by them, or any immoral establishment, and that any act of the Legislature or ordinance of the city of New Orleans authorizing the licensing of such an establishment is unconstitutional. They attacked specially the constitutionality of any act of the General Assembly licensing a concert saloon in which certain dances are performed. They averred that if the Legislature had the right to license such an establishment, Schoenhausen has not obtained the consent of the majority of the property holders and residents within a radius of 300 feet from said concert hall.

The State, through the Attorney General, intervened in the injunction suit, adopting the averments of the petitions filed by the present relators (except as to private interests), and alleged that said concert hall is a public nuisance, contrary to good morals and public order, and that Schoenhausen has not obtained the consent of a majority of the property owners and residents within a radius of 300 feet.

The lower judge having refused to dissolve the injunction on bond, a rule was issued to the present relators to show cause why the injunction should not be so modified as to permit Schoenhausen to open and carry on his business of concert saloon and bar-room “ in conformity to and in obedience to the laws of the State and ordinances of the city of New Orleans and forbidding him from carrying on said business in violation of the laws of the State and the ordinances of the city of New Orleans.” In the rule Schoenhausen averred that he had paid his State and city licenses and annexed the same, amounting to $6000, for 1893.

The present relators excepted to this rule, on the ground that it is unauthorized by law and that it is an attempt to anticipate the trial on the merits. The lower judge overruléd this exception, and after hearing the rule he modified the injunction by enjoining Schoenhausen “ from carrying on his bar-room and concert saloon in any manner violative of the laws of the State or the ordinances of the city of New Orleans, and forbidding him from permitting disorderly persons to congregate therein or otherwise creating a nuisance in his said establishment injurious to the plaintiffs.”

In his opinion, on modifying the injunction, the lower judge said substantially that the injunction did not issue as a matter of right under Art. 298, C. P., but under Art. 303, C. P., which vests in the judge a discretion to determine whether the injurious acts set forth entitle a complainant to an injunction; and that as the judge, in cases arising under Art. 303, C. P., has a discretion in allowing or refusing an injunction before trial, he is, in like manner, vested with discretion to modify a preliminary injunction which improvidently issued and is used to deprive a litigant of a legal right to be heard in court or is used to finally decide a ease before trial. The lower judge further said that by the charter of the city of New Orleans, Act 20 of 1882, Sec. 8, and the license law of the State, Act 150 of 1890, concert saloons are authorized and licensed and that the Supreme Court has decreed-the validity of the acts of the Legislature imposing a license upon those establishments and that those acts have been recognized and enforced by the Supreme Court. He further said that Act 69 of 1888, requiring the consent of a majority of the property owners and residents within a radius of 300 feet from the concert saloon, has been declared null and void at the suit of the Attorney General against McCuen et al., No. 24,711 of the Civil District Court. That the writ should not have issued before trial, closing up said establishment, and that before trial the manner in which the establishment is conducted may be controlled by injunction so as not to cause a nuisance.

The plaintiffs in the injunction suit prayed for a suspensive appeal from the order modifying the injunction, which appeal was refused by the lower judge. Thereupon, the plaintiffs applied to this court for writs of mandamus, prohibition and certiorari.

The lower judge answers the order issued from this court by asserting the validity of his action, substantially for the reasons stated by him on modifying the injunctiqn.

Schoenhausen answers, averring, among other things, that the petition for injunction discloses no irreparable injury; that the amended petition and the intervention of the Attorney General have never been served on him and were filed after his exceptions and answer; that the supplemental petition, changing the issues, should not have been allowed in an injunction suit; that the judge a quo had the right to take judicial notice of the suit brought by the State against McOuen et al.; that the bar-room mentioned was established in compliance with Ordinance 7012 and relators’ statement to the contrary is false; that, moreover, the State laws licensing concert saloons authorize the carrying on of a bar-room, as appears fully from decisions of the Supreme Court; that by its charter, the city of New Orleans is authorized to suppress all nuisances and its council has express power to close houses for retailing alcoholic liquors when the public safety may require; that a summary process being provided by statute for the abatement of all nuisances by the city, the court should not interfere by injunction; that by the State law, the carrying on of concert saloons and bar-rooms is authorized on payment of a license, which he has paid to the State, as well as another to the city; that said business being legal, can not be abated as a nuisance at the suit of private individuals; that for any injury suffered by the relators in the premises, they have their action in damages, but no right to close up respondent’s establishment in advance of the trial on the merits. He quotes statutes and decisions in support of his answer.

In this case, when the petition for injunction was presented to the judge, he might have refused to sign the order closing the establishment, leaving the applicants to seek such- remedy as the law might have afforded. Or the judge might originally have granted the order which is now complained of. An ex parte order for the issuance of an injunction is not a judgment. If the judge should discover that it improvidently issued, that it was too broad and in excess of his power, it seems that he should have the right to correct his error. State ex rel. Leche, District Attorney, vs. Fowler, 42 An. 147; State ex rel. Waterworks vs. Levy et al., 36 An. 944.

It is urged by the respondent judge that if such a power does not exist a litigant might suffer injury, although the judge whose order was causing the injury might, an instant after rendering it, realize and acknowledge that it was improvident. But it is not necessary for us to pass on this point to decide the matter presented for adjudication.

This court has held distinctly, and it is settled, that in the matter of the dissolution of an injunction, the allegation of irreparable injury, set out in the petition, is not conclusive. Slaughterhouse Company vs. Police Jury, 32 An. 1192; Orleans Slaughterhouse Company vs. Butchers’ Union Slaughterhouse Company, 33 An. 930; Schmidt vs. Foucher, 37 An. 175; State ex rel. Sterken vs. Judge, 37 An. 826; State ex rel. May vs. Davey, 39 An. 992.

The relators sought and obtained, for the time being, the immediate abatement of the alleged nuisance, and they prayed for and obtained a complete reversal of the status-of Schoenhausen’s business.

This court has held that as a general rule, subject to exceptions, the mandatory writ of injunction will not issue ex parte before trial. Black vs. Good Intent Towboat Co., 31 An. 487; Barrett vs. City, 33 An. 544.

This court has also held that a preliminary injunction will not be used to oust a person in possession. N. & N. E. R. R. Co. vs. N. O., Terre Bceufs & Lake R. R. Co., 36 An. 561; State vs. Lyon, 41 An. 952.

Mr. Pomeroy states the. equity jurisprudence to be as follows:

“This term (mandatory injunctions) in strictness is confined to interlocutory or preliminary injunctions. Where on the final hearing in a case of nuisance or interference with easements, or continued trespass analogous to trespass, the relief is granted compelling the defendant to remove his obstructions or erections, and to restore the plaintiff to his original condition and thereby to end the wrong, the remedy is in fact an ordinary decree for abatement, and is in ho proper sense an injunction of any kind. But in these and similar cases the preliminary injunction, while purporting to simply restrain the wrong, and while negative in its terms, may be so framed that it restrains the defendant from permitting his previous wrongful act to operate, and therefore virtually compels him to undo it by removing the obstructions or erections, and by restoring the plaintiff to his former condition. Such an injunction is termed mandatory, and resembles in its effect the restorative interdict of the Roman law. It is used where the injury is immediate, pressing and irreparable, and clearly established by the proofs and not acquiesced in by the plaintiff; since an order directly compelling an abatement of the nuisance or a removal of the obstruction can not be made upon interlocutory motion. The rule is fully established, at least by the English decisions, and is not controverted by American authority, that in such eases, where the facts are clearly established and the injury is real and the plaintiff acted promptly upon his acquiring knowledge of the defendant’s proceeding, a preliminary mandatory injunction may be granted, although the act complained of was fully completed before the suit was commenced. It should be observed, however, that no other equitable remedy is more liable to be defeated by acquiescence or by delay on the plaintiff’s part from which acquiescence may be inferred.”

Mr. High, in his work on injunctions, says: “Mandatory injunctions are seldom allowed before a final hearing, though they may be granted on interlocutory applications. And while a court of equity is. always reluctant to grant a mandatory injunction upon an interlocutory application and before a final hearing, it may yet do so in an extreme case when the right is clearly established and the invasion of the right results in serious injury.”

The establishment in question is one of a kind licensed by the law of the State. This court has, in several cases, passed upon matters relative to the licenses imposed upon such establishments. The petition for injunction sets out a considerable volume of matter, en pais, as to the manner of conducting the particular establishment in question.

Cases may unquestionably arise in which the courts would have the power to prostrate a nuisance before trial. Yet, when the matter involves the absolute closing up, in advance of any hearing on the merits, of a business apparently authorized by law, it is manifest that the courts will act with caution and only in clear cases. The business of no one would be, safe if, upon an ex parte charge that it is a nuisance and before he had an opportunity to disprove, a court, without first being satisfied that it was a case requiring an extraordinary remedy, were to close the business. •

The case presented, circumstanced as it is, does not appear to us to be such a one as warranted the rendering in limine and ex parte of a virtual decree of abatement. We distinctly say, however, that we are not to be understood as in any manner expressing or intimating an opinion as to the merits. The question for us now to decide is whether the modification of the order of injunction will cause irreparable injury to the relators, and whether for that reason they are entitled to a suspensive appeal from that order. We mean only that after considering the facts stated in the petition for injunction, the order modifying the injunction and the law, we are satisfied that no irreparable injury can result to the relators from the order. We do not see how, during the time which will elapse until the case comes to us on appeal, the relators can be irreparably injured by the conduct of the business in accordance with the laws of the State, the ordinances of the city, and so as not to cause a nuisance to the relators. We agree with the district judge that, pendente lite, the alleged nuisance may be properly controlled and regulated under the modified order.

The relators are not entitled to the relief sought by them.

The court being of opinion that the relators have not shown sufficient grounds for the allowance of the writs of mandamus, prohibition and certiorari herein prayed for, and that the relators are not entitled to said writs, fctie application for the same is hereby refused, and the provisional order herein granted is set aside.


author: Nicholls, C. J.

text:
    No. 11,079.
    The State of Louisiana vs. William Spencer.
    1. On the trial of this case, defendant, charged with perjury for having in a cause* wherein he was accused of wounding one Cora Hall, falsely sworn as a witness on his own behalf that she had on the 18th of March, 1892, at a certain house on Rampart 'street in New Orleans told officer Cenancc that he (the witness) had cut her accidentally and that she did not wish to have him punished, asked one of the witnesses whom he had called in his defence whether Cora Hall had not at witness’ house on the 29th of March, 1892, told licr that accused had cut her accidentally. The State objected to this question, assigning as reasons-that as defensive evidence proper, it was irrelevant to the particular issue involved in the case and that as impeaching testimony it was inadmissible, Cora Hall not having been a witness in tbe case and no foundation having been laid for such testimony. The judge sustained both objections. The ruling on both points was correct.
    An accused can not claim as a right that he should be permitted to introduce witnesses to rebut testimony which the State had been permitted to offer* (after both parties had closed their case) in rebuttal of one of defendant’s witnesses. It is a matter resting greatly in the discretion of the trial judge.
    3. Where the State had under such circumstances placed a particular witness for the first time on the stand, the accused has the right then to impeach him, bu the trial judge is justified in refusing to allow the witness to be asked question as to irrelevant collateral matters not bearing upon the issue in the case, in order from the answers thereto to lay a foundation for such impeachment.
    4. In Louisiana the jury in a criminal case is judge of the law and the evidence, and .a person accused of perjury has the right to have submitted to it as one of the issues to be determined by it the materiality in the case in which it was given by the accused of the testimony assigned as perjury. When therefore the district judge declined to charge as requested, that “ if the jury find from the evidence adduced upon the trial that the assignment of perjury on which a conviction is asked was not material to the issue, they must acquit the defendant,” and in lieu thereof charged the jury that “ if it find as a fact that the prisoner had made a false assertion, as charged in the information, that such assertion was material to the issue,” he committed a double error. It is the duty of a judge to charge as to the law applicable to a case, but he must do so subordinately to the rights and power of the jury.
    5. The crime of perjury is sufficiently charged in an information by use of the words feloniously, falsely, corruptly, knowingly and maliciously. The special word “ wilfully ” is not sacramental.
    6. It is nol true that the averments of an information for perjury relatively to the testimony given by the accused in the original action should show affirmatively that that testimony was admissible and competent, and could not have been excluded on any legal ground, and that failing so to show and to set out all the facts necessary to have made it admissible, the information is fatally defective.
    APPEAL from the Criminal District Court for the Parish of Orleans; Moise, J.

      M. J. Cunningham, Attorney General, and Lionel Adams, for the State, Appellee:
    1. Evidence can not be heard which is offered for the purpose of contradicting the testimony which it is anticipated will be given by a witness who has not yet been sworn. 36 An. 83; 42 An. 186.
    2. Where the witness whom it is sought to impeach has not testified, no foundation could be laid to justify such attempted contradiction and the evidence of the impeaching witnesses should be excluded. 2 Tayl. Ev., p. 1235, Sec. 1445; Whart. Or. Ev., Sec. 488; 1 Greenl. Ev., Sec. 462; Best. Prin. Ev., 634, 635; Starkie Ev., p. 212; 8 An. 115; 15 An. 167; 29 An. 716; 32 An. 408; 33 An. 1252; 35 An.871; 41 An. 580.
    •3. The extent to which the examination of witnesses as to collateral matters shall be permitted is confided to the discretion of the trial judge. 1 Greenl. Ev., Secs. 51, 447; 2 Tayl. Ev., Secs. 1434, 1435; 7 An. 49; 36 An. 206; 37 An. 687.
    4. The rule is that the party propounding questions as to matters which are collateral to the issue is bound by the answers of the witness, who can not be contradicted. Starkie Ev., p. 178; 1 Greenl. Ev., Sec. 455; 1 Tayi. Ev., Sec. 1435; Whart. Or. Ev., Sec, 484.

      5. The question as to whether testimony will be heard to rebut the testimony in rebuttal offered by the State rests exclusively within the discretion of the trial court. 31 An. 267; 38 An. 459; 44 An. 107.
    6. The Supreme Court has no power and will never attempt to interfere with district judges in their manner of controlling their courts or enforcing rules of decorum or propriety therein. Hence, the appellate court will not entertain the complaint that the district judge erroneously refused to stop an attorney, in the course of his argument, on the ground that the argument was unfair, improper or unbecoming. 35 An. 734; 30 An. 367; 55 Mo. 520, 522; 87 Mo. 608, 615; 1 Thomp. on Trials, Secs. 980, 978.
    7. In trials for perjury it would be error to leave to the jury, without definite instructions from the court, the question of the materiality of the alleged false oath. The proper course is for the trial judge, assuming all of the evidence to be true, to determine whether the particular article of evidence is or is not material. 2 Whart. Cr. Law, Sec. 1284; K. vs. Melaney, L. and O. 593; 10 Cox Ü. C. 97; E. vs. Routhwood, 1and F. 356; Com. vs. Parker, 2 Cush. 212; Com. vs. Lewis, 16 Kan. 157; 3 Bussell on Cr. (9th 3Sd.) 21.
    •8. When the instructions requested require modification? limitation or explanation to prevent them from misleading the jury, they may properly be refused; 35 An. 769; lb. 770; 37 An. 84; 39 An. 757; 41 An. 605.
    '9. Nor is it error upon the part of the trial court to refuse to give an instruction, however faultless in point of law, when the same, in substance, has already been given. 10 An. 264; 14 An. 461; 23 An. 8; 25 An. 407: 27 An. 693; 28 An. 65; 30 An. 1176; 31 An. 302; 32 An. 1270; 33 An. 537; lb. 679; 35 An. 775; lb. 970; lb. 1180; lb. 1159; lb. 1058; 36 An. 81; 37 An. 77; 38 An. 202; lb. 459; lb. 795; 41 An. 317; lb. 600; lb. 780; 44 An. 160.
    10. The court can not be required to instruct the jury in matters of law upon a point which does not arise in the case: and is not applicable to the facts in evidence. 5 An. 491; lb. 287; 34 An. 489; lb. 1084; 35 An. 770; lb. 960; lb. 1013; 37 An. 77; lb. 489; lb. 576; 38 An. 41; 39 An. 675.
    11. The trial court has the right to take judicial notice of its own jurisdiction in a case which was pending before itself. 38 An. 566; lb. 568.
    12. Under our law, in a prosecution for perjury, it is not necessary to set out any part of the record or proceeding other than “the substance oí the offence charged, and hy what covirt or before whom the oath or affirmation was taken (averring said court or person to have competent authority to administer the same), together with a proper averment to falsify the matter wherein the perjury is assigned.” The substance of the offence required hy the statute is, “ that in a judicial proceeding before a court having jurisdiction, and before a person having-authority to administer the oath, the party wilfully made oath of a statement -of a material fact, which statement was false. E. S., Sec. 858; 2 Arch. P. and P., p. 931; 38 An. 566; lb. 568.
    “All the requirements of the statute are accomplished when the facts charged in the information are ample, and enable the court to determine from the face of the record * whether they are sufficient to support a conviction of the particular crime and to warrant judgment.5 ” 38An. 566; Ib.567; 1 Stark O.P.73; Whart. Or. P. and P., Sec. 166;2 Bish. Cr. Pr., Sec. 904.
    18. Where the information charges that the accused “ did, then and there, on his oath as aforesaid taken, feloniously, falsely, corruptly, knowingly and maliciously depose and swear, amongother things, in substance and to the effect,” etc, and after setting out the statement of the facts to which he made oath,, and making the proper averment to falsify the matter wherein the perjury is assigned, concludes by alleging the materiality and the offence as follows: “ and the said false statement so, upon oath, feloniously, falsely, wilfully and corruptly made by the said William Spencer were material to the questions and matter then and there at issue before tliecourt, and the said William Spencer did thereby, then and there, feloniously commit wilful and corrupt perjury” — the information does in point of fact charge that the defendant “ wilfully and corruptly ” swore faisely.
    14. It is not necessary in a prosecution for an offence created by statute to describe the offence in the identical words of the statute. It is sufficient if it be distinctly charged in words which are their equivalent. 12 An. 621; 15 An. 166; 33 An. 1294; 34 An. 261; 38 An. 457.
    15. Where an indictment charges an offence to have been committed “falsely, maliciously, wickedly and corruptly,” it was holden that this was equivalent to having stated it to have been done “wilfully,” and was sufficient in an indictment for perjury at common law. 2 Arch. P. and P., p. 918; 2 Whart. Grim. Law, Sec. 1286 and note; It. vs. Oox, 1 Leach, 71.
    16. Where the trial court illegally admits evidence, if the evidence go to the jury,, as the ruling of the judge was the law for the moment and on the occasion upon which the witness gave the testimony, therefore it was pertinent, and if false should be adjudged to be perjury. 2 Whart. Or. Law, Sec. 1280; 3 Russell on Or. (9th Ed.) p. 21; 2 Bish. Or. Law, Secs. 1035, 1036.
    17. The information against the accused, as drawn, strictly pursues the1 form given in the note to Sec. 876 of Bishop’s Directions and Forms, adjudged good in Keg. vs. Scott, 13 Oox C. O. 594.

      Louis A. Paquet for Defendant and Appellant':
    1. The State has no right to close its case without calling all of its witnesses (named in the information), and especially in an information for perjury.
    2. It is grave injury to the accused for the State to close its case without having-first called the witness named in the information (on whose testimony the charge of perjury is predicated), so as to give the accused an opportunity of laying* a foundation to contradict and impeach the evidence the sai(l witness may give.
    3. When the State fails to produce the witness on whose testimony the charge is predicated, the accused has a right to show the falsity of the charge, and the evidence set forth in the information by any other witness.
    4. The accused has a right to show that the party named in the said information,. (Cora Hall) had made inconsistent and contradictory statements out of court, notwithstanding the fact that she had not been placed upon the witness stand by the State.
    5. An accused has a right to impeach and contradict a witness for the State, by any evidence which may tend to show that she has made inconsistent and contradictory statements outside of court; notwithstanding the said witness, having been placed upon the witness stand in rebuttal. 1 Greenleaf on Evidence, 9th Ed., Yol. 1, Sec. 449.
    6. A witness who is named in the information, and upon whose testimony the said information is predicated, whom the State failed to placed upon the witness stand before closing-its case, and who was only placed upon the stand. by the State, for the first time, m the way of rebuttal, can, on cross-examination, be impeached and contradicted by any evidence which tended to impeach her credibility. 1 Greenleaf, Sec. 462; Whart. Cr. Ev., Sec. 483; State vs. Colbert, 29 An. 715; State vs. Angelo, 32 An. 407.
    7. It is improper for a prosecuting attorney, in summing up, to state his personal belief of defendant’s guilt, or to state facts as of his own knowledge. People vs. Quick (Mich. 1885); Abbott’s Criminal Brief, p. 426.
    8. Counsel can not make damaging statements concerning the defendant of which there is no legal proof. Coleman vs. State (Ala.), 6 Southern liep., p. 290.
    9. It is error for the court to refuse to rebuke counsel for the State for making unfair remarks and improper statements to the jury in his closing address, when called upon by the accused to interpose. Whart. Cr. PI., 9th Ed., Sec. 853, and authorities there quoted. Abbott's Trial Brief Criminal Causes, pp. 427,428.
    10. It is error for the court to charge the jury “ that inasmuch as the State and defence agree that the accused on his former trial did testify to the facts set forth in the information herein that the assignment of pex’jury in this information is material and is, therefore, perjury.”
    11. It is error for the court to refuse to charge the jury that “No amouxit of corroboration willbesuííicienttosuscain a verdict of conviction, where the testimony of the witnesses to be corroborated is in the alternative, doubtful and equivocal.” Gandy vs. State (Neb.) 43 N. W. 747.
    12. It is error for the court to refuse to charge the jury “that if (they) the jury believe from the evidence that the witness or witnesses arenot credible ones, they must acquit the defendant.” Kitchen vs. State (Texas), 14 S. W. 392.
    13. It is erx’or for the court to refuse to charge the jury, “ If the jury find from the evidence adduced upon the trial that the assignment of perjury on which a conviction is asked was not material to the issue, they must acquit the defendant.”
    14. An infoi’mation must show that the infoxmation entitled State of Louisiana vs. William Spencer (whex’ein it is alleged the accused committed the crime of perjux*y) had been regularly and duly apportioned by lot, as the law requires.
    15. An information for perjury xnust aver that issue was duly joined between the Stale of Louisiana and defendant, on the trial, wherein it is alleged the pex*jury was committed. Whai’t. Cr. PL, 9th Ed., Sec. 759, and authorities there quoted; Covey vs. State (Texas), 5 S. W. 283.
    16. In an information for perjury, it is necessary to charge that the defendant “ wilfully ” and cox’ruptly swore falsely. Whart. Cr PL, 9th Ed., Sec. 264; Starkie Cr. PL, 1st American, pp. 128 and 460; State vs. Gibson, 26 An. 71; Steher vs. State (Texas), 4 S. W. 880; State vs. Bay (Mo.), 12 S. W. 365.
    17. It is impossible to sustain a conviction for perjury founded on an indictment which does not show, on its face, that the oath assigned as perjux’y was sworn to “ villully ” and falsely. State vs. Gibson,26 An.,p. 71.
    18. An information which charges an accused with the crime of perjury, for swearing to certain statements made by another person (as alleged in the infoi’mation herein) “ shortly ” after the commission of a crime, the information must show upon its face that the accused was present at the time the statements sworn to were made, so as to show that the evidence was material, legal and competent, and foi’med part of the res gesten in the former trial (wherein it is alleged the perjury was committed); that the word “ shortly ” in said information is not sufficient.
   The opinion of the court was delivered by

Nicholls, C. J.

The defendant having been sentenced to suffer imprisonment at hard labor for five years under an information charging him with wilful and corrupt perjury committed by him when a witness on his own behalf, in a prosecution against him in the same section of the court, for having on the 18th of March, 1892, inflicted a wound less than mayhem upon one Cora Hall, has appealed.

The matters complained of are embodied in eight bills of exception, a motion for a new trial and a motion in arrest of judgment. The bills of exception numbered from one to six are reserved upon the same points identically as those alleged in his motion for a new trial.

The seventh bill is reserved to the ruling of the court passing upon his motion for a new trial, and the eighth to the refusal of the trial judge to arrest the judgment.

In discussing the questions presented, we will follow the course adopted by the attorney general and the assistant district attorney in their brief, and consider each bill of exception in connection with that portion of the motion for a new trial which relates to the same subject.

The matter sworn to by Spencer, with respect to which he is charged with committing perjury, was to the effect “that on the 18th day of March, in the year aforesaid (1892), shortly after the cutting of the said Cora Hall by the said William Spencer, Officer Cenance, together with another officer, had gone into the hallway of the house on Rampart street in which the said cutting had taken place, and that the said Cora Hall did then and there tell the said officers that the said cutting had been accidental, and that she, the said Cora Hall, did not desire the arrest of the said William Spencer because of said cutting, and that thereupon the said Officer Cenance and the officer who accompanied him did compel the said Cora Hall to make a charge against the said William Spencer because of the said cutting.”

The first bill of exception and the motion for a new trial recite that on the trial, whilst Jennie Spencer was being examined as a witness for the defendant she was asked by his counsel, for the purpose of contradicting the allegations set forth in the indictment, the following questions:

Q. Did you see Cora Hall on May 29, 1892, at your house? to-which the witness answered “Yes.”

Q. Did Cora Hall there and then tell you that the accused cut her-accidentally?

That thereupon the prosecuting' attorney objected to this last question being answered upon the ground that it was irrelevant and had no bearing on the case.

That then counsel for the defendant informed the court that as Cora Hall was the main witness for the prosecution, and as it is pleaded in the information that the said Cora Hall did not as a matter of fact make the statements to Officer Cenance assigned as a matter of perjury against the defendant, and as the State had closed its case without placing Cora Hall upon the witness stand to prove the allegations of the information, that therefore the above question was-relevant to the issue and had an important bearing upon the case for-the reason that Cora Hall had not been put upon the stand to give the defendant an opportunity to contradict her if she denied the statement that the cutting was accidental, and that the judge having sustained the objection of the assistant district attorney defendant reserved a bill. The reasons assigned by the judge for his ruling was-as follows: “The prisoner is charged with false swearing in asserting that Cora Hall had made a statement that she was cut accidentally to Officer Cenance.

‘ ‘ The prosecution had rested the case upon the record of conviction against the prisoner in the cutting ease, and the testimony of Officer Cenance and another person present at the time. Cora Hall was not a witness. No foundation was laid for the purpose of introducing this evidence to impeach the testimony of any of the witnesses, since-none were shown to have been present or to have had any connection with the pretended statement of Cora Hall. Nor was it admissible to prove that Cora Hall had made this statement to Officer Oenance because she had made it to some one else.”

Defendant’s counsel claims in this court that he had the right to-introduce the evidence for the purpose of showing that Cora Hall had made different statements outside of court because “ it was the duty of the State to have placed Cora Hall on the stand to prove the averments of the information and to give the accused an opportunity to examine her.” This bill can not be sustained. If the questions-were intended to impeach the credibility of Cora Hall the objections. taken by the State and sustained by the court that she had not testified in the case and that no foundation for such attack had been laid were well founded. See State vs. Chevalier, 36 An. 83; and State vs. Brownson, 42 An. 186.

If the questions were propounded for what might be styled “defensive evidence” proper, if it would be admissible at all under any special circumstances which defendant could disclose, it certainly was not admissible in this case, and in the general way in which it was presented Counsel for the State say very pertinently in their brief: “The only question presented by the pleadings was whether in point of fact it was true that at the time and place mentioned Oora Hall had made the statements imputed to her. As there was no pretence that Oora Hall had admitted that she had made to Officer Oenance and another on the 18th of March the statements imputed to her by the prisoner, any admission that she may have made on the 29th of March, to the effect that the cutting was accidental, would be competent in the trial of the issue whether that cutting was wilful and malicious, but is immaterial, collateral and irrelevant to establish that a certain conversation had been held at a different time and place with other persons.”

The second bill of exception recites that on the trial of the case, after the State and defendant had respectively closed their case, a witness of the State named Oora Hall was called in rebuttal by the State to rebut the evidence given by the accused in his own behalf. After being examined by the district attorney, and testifying that she had not been cut accidentally by the accused, and did not make the statements to Officer Oenance as testified by the accused, she was then tendered to defendant for cross-examination, and she was asked by the defendant through his counsel the following questions for the purpose of impeaching her testimony: “ Do you know Jennie and Sarah Spencer?” to which witness answered “Yes.” “ Did you see them at their house on the 29th of March, 1892?” to which witness answered “Yes.” “ Did you not tell Jennie and Sarah Spencer there .and then that William Spencer, the accused, had cut you accident.ally, and that you did not desire to have him punished?”

That this question was objected to by the State as being irrelevant; that thereupon counsel for the defendant insisted that the question was relevant, as it was laying a foundation to impeach and contradict •the testimony of said witness Cora Hall. That the court having sustained the objection a bill was reserved. The court assigned as the reason for its action that' Cora Hall was called in rebuttal by the State to the witness stand; that it sustained the objection to the admission of the testimony on the ground of its utter irrelevancy; that if Cora Hall had made the statement to a third person that she was cut accidentally was no proof that she made the statement to Officer Cenance; that it was not shown that Officer Cenance was present when Jennie Spencer was told by Cora Hall that she was cut .accidentally.

This court has on three occasions decided that an attempt to offer rebutting testimony to the testimony in rebuttal, introduced by the State, is not a matter of right, but simply a privilege, resting to a great degree in the discretion of the trial court. See State vs. Wood, 31 An. 267; State vs. Gonsoulin, 38 An. 459; State vs. Lyons, 44 An. 107.

An examination of the bill of exception, wherein is briefly stated the testimony given by Cora Hall in her rebutting testimony and the testimony sought to be drawn from her by the defendant, shows nothing to justify us in overruling the judge’s course in excluding the testimony from the point of view of rebutting evidence. It was utterly irrelevant as rebutting evidence proper in defence. Is defendant’s complaint well grounded considered from the standpoint of an impeachment of Cora Hall? She is the person whose wounding by .Spencer was the occasion of the first prosecution against him. In that suit he went on the stand in his own behalf and testified that,at a certain specified place and at a date precisely fixed she had made ■certain statements to particular persons to the effect that the cutting was accidental and she did not desire to have Spencer punished. In the present proceeding it is charged that that testimony was false and that he was guilty of perjury in swearing to those facts.

Under ordinary circumstances, in common fairness to a person accused, it would be the duty of the State to place at once upon the stand as its own witnesses all those who were present at or legally cognizant of the facts upon which the prosecution is based (see People vs. Kenyon, 52 N. W. 1033), but that rule in the nature of things is subject to modifications and exceptions.

In this case for reasons not disclosed (and which we have no right to assume were unwarranted) the State failed to place Cora Hall upon the stand at first and closed its case without her, a fact spoken of as a grievance, as we have seen in defendant’s first bill of exceptions. It is intimated that the State having cut off the defendant from im - peaching this witness in the beginning of the trial because she had not testified and because it was then premature, afterward cut him oil from doing so because it was too late. Were this-true defendant would have very good ground of complaint, for a defendant is entitled at some period of the trial to discredit all witnesses brought against him; but we do not understand the State to-have objected on the ground of the time at which the impeachment was sought to be made, but to the character of the questions asked. We think the court was justified in not permitting the accused to ask the witness these irrelevant collateral questions in order to attempt to contradict the answers she might make and thus throw a doubt upon her credibility as a witness upon the issues really before the-court.

The third and fourth bills refer to the refusal of the district judge to rebuke the assistant district attorney for certain remarks made-by him in his argument before the jury. Whilst the words used by the prosecuting attorney were somewhat- intemperate, we see nothing in them to authorize more than this statement from the court.. We do not think the accused was in any way prejudiced by what was-said.

The complaint urged in the fifth bill and motion for new trial is to so much of the judge’s charge to the jury as is contained in the following words:

I charge you, gentlemen of the jury, that if you find as a fact that the prisoner had made a false assertion under the circumstances stated as charged in the indictment, that such assertion was material to the issue in the case pending.”

We have to consider this charge in connection with that asked by-the accused to be given (found in the sixth bill of exceptions), and which was refused to be given by the judge, that written above being substituted in lieu of it.

Defendant’s counsel had asked the court to charge that if the jury find from the evidence adduced upon the trial that the assignment of perjury in which a conviction was asked was not material to the issue, they must acquit the defendant.”

The judge in respect to the charge requested of him says that he charged the jury generally that they were the sole exclusive judges of the facts of the case; that they determine the credibility and the weight to be given to testimony; that they were the judges of what had been proven and what had not been proven, and in respect to the particular charge which he had declined to give, he says that it was refused because the court considered the materiality of the statement assigned as perjury to be a question of law, and that he charged the jury that if they found as a fact that the defendant swore to the assertion as alleged in the information such evidence was material to the cause then pending.

In the brief filed on behalf of the State we find the following quotation from 2d Wharton Criminal Law, Section 1284:

“According to Lord Campbell, the materiality of the alleged false swearing is for the jury, but the weight of authority is that it would be error to leave it to the jury without definite instructions from the court, and the proper course is for the judge, assuming all the evidence to be true, to determine whether the particular article of evidence is or is not material. Any dispute as to the truth of the facts, however, must go to the jury.”

When our attention was first directed to this point we were inclined not to attach much importance to it, but to follow what in the citation from Wharton just stated is declared to be the weight of authority.

In the particular manner in which the matter is presented to us in this case, we are of the opinion the judge erred in not giving the charge requested of him. The jury in Louisiana are judges of the law and the fact. (Article 168, Constitution 1879.) Perjury is a peculiar crime; one of its essential elements being the materiality of the testimony given by the accused in the suit in which it was taken. The materiality of this testimony is a mixed question of law and fact, and is one of the averments necessary to be made in an indictment for perjury. When under such an indictment a case is presented to the jury, after evidence is adduced, the question as to whether that testimony was material or not is as much before it as any other issue involved.

It by no means follows that because on a motion to quash an indictment for perjury on the ground that the statements therein descriptive of the crime, if taken as true, do not show a legal cause of action, the judge has for the purposes of that motion (or one in arrest of judgment) the right to determine, and finally determine, that question ; or because a judge, on points raised as to the admissibility of evidence, has the unquestionable right to decide them, and that thereafter the question of admissibility is removed from the consideration ■of the jury, that therefore a judge has the right, in this State, to withdraw from the jury, either as a matter of law ( r of fact, or both, one of the triable issues in a criminal case, and that is what we conceive he has done here. The accused had the legal right to submit his case to the jury on the subject of the materiality of the testimony given by him to the issue in the, case in which it was given (it being, .as we have said, a mixed question of law and fact), not only on the evidence but on the law; and this statement is not inconsistent with the right of the court to charge the jury on the law applicable to the matter. This it is his duty to do, but in the performance of that duty he must, in this State, do so subordinately to the rights and powers ■of the jury and to the requirements of Section 991 of the Revised Statutes as to commenting upon the evidence. State vs. Swayze, 30 An. 1323. Admissibility of evidence is by no means identical with materiality of evidence.

The complaint as to the other charges requested by the accused and refused' by the court is disposed of by the statements made by the court in respect to the facts of the case and as to what he had already substantially charged the jury on the points suggested. The .accused requested no written charge and the statements of the court must be taken as true.

The motion in arrest presents four grounds, because of which it is contended that the judgment should be arrested:

1. Because the information fails to show that the indictment entitled The State of Louisiana vs. William Spencer, wherein it is alleged that the accused had committed perjury, had been regularly and duly apportioned by lot as required by law.

2. That it failed to show that issue was joined between the State of Louisiana and defendant on the trial of the indictment entitled the State of Louisiana vs. William Spencer, wherein it is alleged defendant committed the crime of perjury.

The objections have no force. Section 858 of the Revised Statutes provides: “ In every presentment or indictment against any person for wilful or cotrupt perjury it shall be sufficient to set forth the substance of the offence charged and by what court or before whom the oath or affirmation was taken (averring said court or person to have competent authority to administer the same) , together with a proper averment to falsify the matter wherein the perjury is assigned without setting forth the bill, answer, information, indictment, declaration or any part of the record or proceeding other than as aforesaid and without setting forth the commission of authority of the person, before whom the perjury was committed.

The information sets out that William Spencer was in due form tried upon a certain indictment then ; nd there depending against him and of which the said court had jurisdiction, and that at the trial so then and there had as aforesaid the said William Spencer did appear as a witness upon his own behalf at the said trial and was duly sworn in open court, etc.

We think the information complied with all the requirements of the law under the statute mentioned.

3. Because the information fails to set forth that the crime charged was done “wilfully,” as required by law; that charging with having taken the oath “feloniously,” “maliciously” and “corruptly” is insufficient; that it should have charged that it was done “wilfully,” “ feloniously, ” “falsely,” “corruptly,” “knowingly,” and “maliciously.”

The information charges the oath as having been taken feloniously,, falsely, corruptly, knowingly and maliciously, and states further-that the said false statements so upon oath feloniously, falsely, wilfully and corruptly made by the said William Spencer were material,, etc.

We think the words used in the charging part of the information cover the word “wilfully,” assuming that the subsequent actual use of that word was as placed in the information insufficient to give it the force it would have had it been found in the first portion of the instrument. 51 N. W. 474; 27 Pac. 836; 15 S. W. 175.

4. That the information does not show that the defendant was present at the time that the said statements were made by Cora' Hall to officer Oenance shortly after the cutting, as set forth in the information, so as to show that such evidence was material, admissible and competent on the trial of the case wherein it is alleged the defendant committed perjury, and that the word “ shortly” used in the information without alleging, clearly and distinctly, that the said accused was present at the time it is alleged that the conversation was held between Cora Hall and Officer Cenance is insufficient to show that what defendant swore to was admissible on the former trial and was a part of the res gestee, and that therefore the said allegation is not sufficient in law to constitute the crime of perjury.

We understand this objection, which is anything but clear in its language, to assert that the averments of the information relatively to the testimony given by the accused in the original action should show affirmatively that that testimony was admissible and competent and could not have been excluded on any legal grounds, and that failing so to show and to set out all the facts necessary to have made it admissible and competent, the information was fatally defective.

We can not accede to that proposition.

For the reasons herein assigned it is ordered, adjudged and decreed that the verdict of the jury and the judgment of the District Court therein rendered in this case be and the same is hereby annulled, avoided and reversed and the case remanded to the lower court for further proceedings according to law.