author: Nicholls, O. J.

text:
    No. 11,517.
    Widow V. Lacoste et al. vs. Widow A. Guidroz et al.
    1. Where a marriage duly solemnized is sought to he annulled on the ground that the consent given to it by one of the spouses •was procured by violence and threats, the status of the parties before the court for the time being is that of husband and wife, and neither is a competent witness in the suit. IFor the same reason both parties, though minors at the time of the celebration of the marriage, are authorized to stand in judgment without the intervention of tutors. The mother of the plaintiff has no personal interest in the suit, for even if her consent to the marriage had been extorted, that fact would not invalidate it.

      •2. A marriage the consent to which was produced under the influence oí error, violence or threats is not absolutely null — it is not void but voidable.
    .3. Where a husband seeks to annul his marriage on the ground that his consent thereto had been procured by violence and by threats of criminal prosecution for a crime he had not committed, and the evidence shows that affidavit and prosecution were entirely prospective and looked evidently to a charge under Act No. 184 of 1890, or under See. 787 of the Revised Statutes, and that at the time of the celebration of the marriage no violence or threats were brought to bear on him, but that he apparently gave free verbal consent to the marriage and signed the marriage certificate, the court will hold the plaintiff to proof, that in order to obtain his assent to the marriage mere forms of law were about to be used to cover coercive proceedings for an unjust and illegal cause. Threats of any measure authorized by law and the circumstances of the case would not invalidate the contract.
    4. Engagements made through error, violence, fraud or menace are not* absolutely null, but are voidable by the parties who have contracted under the influence of such error, violence or menace. When, therefore, it is charged by one of the parties to a marriage, duly celebrated and duly evidenced by marriage certificate, that his consent thereto was given under the influence of fear and threats, that the marriage was a nullity and should be so decreed, his status before the court, during the suit, is that of a husband, and he is not a competent witness in the case.
    .5. If the threats used to bring about a marriage were threats only of doing that which the party using them had a right to do (threats, for instance, of any measure authorized by law and the circumstances of the case), they would not invalidate the contract, but the mere forms of law to cover coercive proceedings for an unjust and illegal cause would invalidate a contract made under their pressure.
    •6. Minors who have contracted marriage are authorized to stand in judgment in an action to aunul the marriage without the intervention oi their tutors.
    ‘7. The want of consent of the mother and tutrix of a minor to his marriage is no ground for its annulment.
    PPEAL from the Civil District Court, Parish of Orleans. Monroe, J.

    Action that an act of marriage passed on the 16th March, 1893, before the judge of the Second City Court, between Honoré Lacoste .and Therese Guidroz, be declared null and void ab initio.

    Judgment was rendered in the District Court in favor of the defendants, rejecting the demands- of plaintiffs and dismissing their .suit.

      Albert Voorhies for Plaintiffs and Appellants.

      Paul L. Fourehy for Defendants and Appellees.
   The opinion of the court was delivered by

Nicholls, O. J.

The first question which meets us in the investi-' ■gation of the case is the correctness or incorrectness of the exclusion toy the court of the testimony of Honoré Lacoste, the plaintiff.

Art. 2281 of the Revised Civil Code, amended and re-enacted by Act No. 59 of 1888, is as follows:

“ The competent witness of any covenant or fact, whatever it may be,' in civil matters, is a person of proper understanding. The husband can not be a witness for or against his wife, nor the wife for ■or against her husband; provided, that in any case where the husband or wife may be joined as plaintiffs or defendants and have a ■separate interest, they shall be competent witnesses for or against their separate interests therein. Provided further, that in all cases where either spouse has acted as agent for the other spouse, such •spouse so acting as agent shall be a competent witness as to all transactions arising from, involved in, or connected with such agency. That no statement or statements of either party in suits for separation of property and separation from bed and board or divorce shall be received in evidence.”

Plaintiff's counsel contends that the exclusion of the testimony 4‘ was a misapplication of the article cited, which contemplated an existing, undisputed marriage, during which, on grounds of public policy, the spouses are not allowed to testify for or against each ■other — that in the case at bar the issue was whether there was a marriage. It was marriage vel non. That to exclude either party from testifying is to prejudge the case — that it is a petition of principle to hold, in anticipation of the judgment, that there is a valid •existing marriage disqualifying the spouses as witnesses, since the decree pronouncing its nullity ab initio demonstrates that they were never married in the eye of the law — never husband and wife. That a minor who signs an act of marriage to which he does not give a consent free and deliberate, but which he does sign under compulsion, has not been married, and the policy of the law, instead of shutting out his testimony, runs in the opposite direction.”

Called to pass upon this question on appeal, we do so under the light of the pleadings and the testimony in the record other than that rejected. • ■

The present action is grounded upon the claim that the consent which the plaintiff gave to the marriage was not free and deliberate, but forced upon him by violence and under the operation of fear on his part of a threatened prosecution for a felony which he had not committed, and of which he was innocent. It is neither asserted nor shown that an affidavit was ever-made against him, or that he had ever been arrested on a criminal charge. We are satisfied from the evidence in the case that at the time c.f the ceremony consent was given to the marriage by both Honoré Lacoste and his mother. What the character of that consent was, and what its result and effect was upon the parties after it was given, and under the circumstances it was given, is what we are now to consider.

We have before us a marriage certificate in proper form, signed by the parties, the necessary witnesses and the officiating judge, declaring that the parties had consented to a marriage, and it is (dehors the certificate) established affirmatively that both Honoré Lacoste and Miss Guidroz additionally gave consent, so far as words could evidence it.

Independently of this it is urged that though both mother and son gave their consent, it was only conditionally given, the condition being that a divorce should be immediately granted to the husband. We think it clearly intimated that had a consent divorce been obtained, the present litigation would not have arisen.

The actual ground of complaint seems to rest rather upon the breach of a promise to grant a divorce than upon the want of consent to the marriage, produced by fear, violence or threats, though in the petition the latter is assigned as the direct cause of action.

Plaintiff’s position is, that in spite of this condition of facts, he has the right by reason of the allegations and prayer of his petition to stand before us prima faeie as not married, and that until he shall have been judicially declared to have been legally married, he is entitled to testify as to the fact of marriage, and as to the circumstances leading up to his apparent consent.

We can not see matters in that light. There is no doubt, as we have said, that a consent of some kind was given by the plaintiff, and we have to deal not with an absolute want of consent, but with a case where consent was really given, though claimed to have been affected by a vice which authorizes and permits the revocation or breaking of the contract. Speaking upon this subject of consent by reason of error, fraud or violence Marcade, under Art. 1109, O. N., says: “Les eommentateurs ont trop souvent oublié qu’il ne s’agit pas ici du défaut de consentment, mais seulement des cas ou le con-sentement, récllment donné, se trouve 'affecté d’un vice qui permefc de le faire révoquer et de faire briser le contrat. O’est évident puisque la loi parle d’un consentment qui n’est pas valable, cu qu’il a été donné par l’effet de l’erreur de la violence ou do dol. * * * Si le consentment été donné (par quelque cause que ce soit), il ex-iste pour qu’ily ait lieu de se demander s’il esb ou n’est par valable.

* * * D’ailleurs, si le consentement n’existait pas le contrat ne se serait pas formé, Pobligation ne serait pas née, et par conséquenb, il ne paurrait pas ébre question de faire annuler le contrat efe d’étiendre l’obligation. Or la loi nous dirá plus loin que Paction en> nullité pour erreur, violence ou doi, esb une des causes d’extinction. d’obligation, et que si cette actian n’est pas intentée dans le3 10 ans. le contrat et Pobligation qu’l a fait naital contimment de subsister.”'

The difference between defective consent and absolute want of consent is here distinctly noted. The subject is discussed at length by the author, but we only cited enough to show the character of the general conclusions reached.

Article 1881 oí our own Code declares that “engagements made through error, violence, fraud or menace are not absolutely null, but are voidable by the parties, who have contracted under the influence of such error, violence or menace, or by the representatives of such parties,” and the next, AH. 1882, announces that “they may be avoided either by exception to suits brought on such contracts or by an action brought for that purpose.”

Under these articles a contract entered into under the influence of error, fear, violence or menace, stands until set aside. Assuming that plaintiff in this case under its evidence would be entitled to a judgment, our decree would nob conform to the exact prayer of his petition. We would not decree the marriage absolutely null ab initio, but we would, by our decree, avoid it.

In view of this fact the plaintiff must be, for the time being, at least, held to be the husband of the defendant, and not competent to testify.

We have already stated that prior to the marriage no affidavit had been made against the plaintiff, nor had he been arrested. If his action in consenting to the marriage was based upon fear or violence it-was of a prospective affidavit, arrest and prosecution. We do not know whether an affidavit would have been made and an arrest and prosecution would have followed, nor of what crime he would have been charged. He says he was threatened with prosecution for a “ felony,” but he does not say what the particular felony was.

We do not know what the actual relations between husband and wife were prior to the marriage ceremony. There is no doubt that friends and connections of the wife charged him with their having been of such a character as to throw him under the penalties of the criminal law, and that they threatened him with a criminal prosecution. Matters never went far enough for us to know what the charge would have been had the facts been fully stated and disclosed to the recorder — whether it would have been under Act No. 134 of 1890 or Sec. 787 of the Revised Statutes.

As the accusation in point of fact was not made, it would be difficult to say whether if made, and as made, there would be probable cause for it. That Honoré Lacoste was very apprehensive as to the issue of the charge is undoubted.

“Article 18S6 says that if the violence used be only a legal constraint, or the threats only of doing that which the party using them had a right to do, they shall not invalidate the contract. A just and legal imprisonment or threats of any measure authorized by law and the circumstances of the case are of this description.”

The nest article declares, however, that the mere forms of law to cover coercive proceedings for an unjust and illegal cause, if used or threatened in order to procure the assent to a contract, will invalidate it. An arrest without cause of action, or a demand of bail in an unreasonable sum, or threats of such proceeding, by this rule, invalidate a contract made under their pressure.”

Bishop on Marriage and Divorce, Vol. 1, Chapter XI, paragaph212, speaking of force, lawful or unlawful, says:» “Force to constitute in law duress must be unlawful. A contract, for example, to free the maker from a lawful arrest, or to avoid such threatened arrest, is ■not, therefore, invalid. And a man lawfully arrested on a process tfor bastardy or seduction can not if he marries the woman to procure his discharge have the marriage declared void as procured by ■duress. Nor is it otherwise though he have a good defence and enters into the marriage simply to avoid being imprisoned under the process, and he afterward discovers that he might have made his defence successful. But if the process of arrest is void, or otherwise-the imprisonment is unlawful, and he marries the woman to regain his liberty, the marriage will on his prayer be set aside. Perhaps the same result will follow if the arrest, while not technically illegal, is both malicious and without probable cause.” The author cites ini support of the views thus expressed: The State vs. Davis, 79 N. C. 603; Johnson vs. Johns, 44 Texas, 40; Sickles vs. Carson, 11 C. E. Green, 440; Dies vs. Winne, 7 Wendell, 47; Williams vs. State, 44 Alabama, 27, and in the note to the section he says: “It is so where-he marries a woman he has seduced through fear of the penal consequences.” Hennett vs. Hennett, 33 Arkansas, 156.

An examination of the record does not satisfy us that the principle announced in Art. 1857 finds application in the case before us. It may be true that plaintiff was not fully willing to marry the defendant, but having consented to do so, and having done so, there is-, nothing before, us which would warrant his avoiding the marriage.

We do not regard the exception of misjoinder of any special importance in the case. We think the husband and wife were authorized to stand in judgment without the necessity of being represented by their tutors. The same principle by which the husband’s testimony was excluded places them both before the court for the purposes of this suit, as under their present status capable- of suing- and being sued. The mother of the plaintiff has no personal interest, in the suit. Even if her consent to the marriage had been extorted by threats and violence, that fact would not have had the effect of invalidating it. We have reached the conclusion that the judgment appealed from is correct, and it is hereby ordered, adjudged and decreed that it.be and is hereby affirmed.

ON Application foe Reheahing.

A re-examination of this case has brought us to the conclusion that the interests of justice would be best subserved by setting aside the judgment heretofore rendered by us, so as to remand it to the lower court for further proceedings in some respects. We think that under all the facts of this special case we did not sufficiently take into consideration the youth of the defendant, in dealing with his consent to the marriage when threatened with criminal prosecution. Tn remanding the case we think it not amiss to say that defendant’s departure for Europe after the marriage, and after this suit was instituted, and placing himself beyond the reach of the criminal prosecution which was stayed by his marriage, was one of the facts in evidence which, though not mentioned in the opinion, attracted our attention and impressed us very unfavorably against his claim that the prosecution was utterly void of all foundation. We think it right that the actual relations of the parties prior to the ceremony should, if possible, be brought to light. Eor that reason it is hereby ordered, adjudged and decreed that the judgment heretofore rendered by us be set aside, the judgment of the lower court reversed, and this cause is hereby remanded to the District Oourt, for the purpose of having shown the actual relations of the plaintiff and defendant prior to the marriage ceremony and for the purpose of ascertaining and determining whether or not the threatened prosecution was authorized by law, and the circumstances of the ease, or used to procure plaintiff’s consent to the marriage by threats of using the mere forms of law to cover coercive proceedings for an unjust and illegal cause. A rehearing being unnecessary in view of the present action of the court, the application therefor is refused.


source: Caselaw Access Project

author: Nicholls, C. J. Breaux, J.

license: Public Domain

text:
    No. 11,533.
    Succession of Mrs. Wilhelmina Justus.
    AVhere by order of court three rules had been taken by an executor upon an adjudication at succession sale of throe different properties to show cause why the adjudication should not be complied with, have been consolidated and a single judgment has been rendered, the aggregate amount in dispute and not that involved in each separate rule will determine the appellate jurisdiction.
    It is claimed that the failure to insert in the-testament the residence of the witnesses is a fatal irregularity.
    The court has frequently decided that such irregularities are cured by the prescription of five years.
    The heirs of age at the time the will -was probated, in 1876, are without right, in opposition to the plea of prescription.
    This prescription against minors dates from their majority.
    It is sometimes impossible to dispense with evidence in its eharacier hearsay in proof of remote and collateral matters, but tribunals should be on their guard when the actual point at issue in a cause depends wholly or chiefly upon it.
    It is from its nature very much exposed to fraud and fabrication. While the certificate of a curate in a foreign country, properly authenticated, is admissible in evidence to prove facts evidenced by copies of his records which he is bound to record; as to matters it is not shown he was bound to record, his statement should, at least, be explained and corroborated.

      The case is remanded at the instance of the adjudicatee of property, to enable him to obtain other testimony disproving or explaining any of the entries on the curate’s certificate.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Charlea F. Buck, Buck, Walshe & Buck and Dinkelspiel & Hart for Executor, Appellee.

      Chretien & Suthon for Mrs. Huy, Defendant and Appellant.
   On the Motion to Dismiss.

The opinion of the court was delivered by

Nicholls, C. J.

In this succession at a sale made under an order of the Civil District Court, Mrs. L. Huy became the adjudicatee of three pieces of real estate, each piece being adjudicated to her separately. On her refusal to comply with the adjudications, the executor took three separate rules against her, one relating to each piece of property, to show cause why she should not be compelled to comply with the adjudications.

By order of court the three rules were consolidated, and being taken up together as one single ease, were tried, evidence adduced and one single judgment rendered in favor of the succession, making the rules absolute. Prom this judgment Mrs. Huy appealed, and a motion to dismiss the appeal has been filed in this court on the ground “ that it has no jurisdiction, as the adjudication of each piece of property was for a price less than two thousand dollars and therefore below the lower limit'of the jurisdiction of this court.”

The aggregate amount of the price of the three adjudications is above that limit. We are of opinion that we have jurisdiction in this case.

In Offut vs. Roberts, 12 Martin, 300, the court said: “We take the effect of the consolidation to be that the cases are to be considered as if the facts of both petitions were introduced in one or several counts, and those of the two answers were put together. On suits thus consolidated, but one judgment can be regularly given.” And in Heirs of Bailio vs. Prudhomme et al., 8 N. S. 388, wherein judgment in the” District Court was rendered after a consolidation of two separate suits which had been brought by plaintiffs against the defendants, and wherein the aggregate amount, but not the separate amounts involved in the suits, would authorize the appeal, it declared in refusing the motion to dismiss “as the consolidation took place with the consent of the plaintiffs, it was of opinion that both, actions must be considered as one in relation to the matters in dispute. ’

The trial of different cases together must not be confounded with the cumulation or consolidation of cases (see Armitage vs. Barrow, 10 An. 79). The mere trial of cases at the same time leaves them as distinct as they were before, but consolidation works the result-which amendments when allowed bring about.

“Amendments, when allowed, form part of the pleadings, and; plaintiffs demand is precisely what it would have been had the original and amended petition been filed at the same time, so that the court must decide on both, and can not give judgment on one alone.”' Hennen’s Digest, 1182, No. 2; Lanusse vs. Massicot, 3 Martin, 41; King vs. Wartelle, 14 An. 750.

The three rules which the executor caused to be taken could all' have been properly combined or. cumulated in one original, and we see no good reason why this was not done, as the law does not favor-a multiplicity of suits and an unnecessary, entailment of costs. The judge rightly consolidated them. Appellee says in her brief that this was done over her objection, but if objection was made the fact does not appear of record. Her position is one of acquiescence if not actual consent. This case is not that of several distinct plaintiffs •with distinct causes of action uniting in one suit against a single defendant, or one plaintiff proceeding against several defendants on a separate cause of action against each. Therefore decisions which go to show that appeals have been dismissed in this court in cases of that character for want of jurisdiction are not pertinent. The only authority cited by appellee which bears any resemblance at all to the present is that of the claim of Hopkins referred to in Louisiana Railroad Co. vs. Hopkins, Kennedy et al., 33 An. 808, which seems to have been decided upon a special state of facts, not identical with those which appear in this.

We think the motion to dismiss the appeal is not well taken. The appeal must be sustained.

On the Merits.

On the first hearing of the cause it was ordered that the judgment appealed from should be avoided and the demand of the plaintiffs be rejected. A rehearing having been granted the opinion of the court was delivered by

Breaux, J.

The first husband of Mrs. Wilhemina Justus, the late Joseph Armbruster, bequeathed to her all his property. The will was nuncupative by public act, but defective in form because of the failure to state the residence of the witnesses. The will was probated in 1876, and she was decreed entitled to the possession of the property. At her death the property was sold by public auction as hers.

The will has become effective and legal by the operation of prescription, except if there should be minor heirs, against whom the prescriptible period dates from majority. Oivil Code, 3642.

If there are no minor heirs, the property belongs to the succession of Mrs. Justus. In our original decree we reversed the decision of the lower court for the reason that the evidence disclosed that one of the brothers of Joseph Ambruster, viz.: Anton Armbruster, died on October 20, 1882, and there was no proof in the record to show that he left no minor heirs.

The executor of the estate of Mrs. Justus applied for a rehearing' on the ground that Anton Armbruster lived more than five years after the date of the judgment of 24th of November, 1876, probating his brother’s will. This contention is sustained by the record.

A rehearing was therefore granted. The appellant, who was adjudi-catee of property of the succession of Justus, urges that the certificate of the curate at Wolfach, Germany, admitted as proof of the non-existence of Armbruster heirs, is not sufficient to show the matters and things therein stated.

The defendant, purchaser, submits that the case should be remanded in order that evidence may be admitted to prove that the entries in the curate’s books are true. Ordinarily, the entries in registers, duly made, kept by a person bound to record the fact, in any foreign country, makes full prbof when properly authenticated by the consular officer of that country.

The proper evidence in that case is a copy of the record. The certificate should be of birth, marriage and death. Hughey et al. vs. Barrow, 4 An. 248, 252.

With regard to evidence of this character, Mr. Best, in his work on Evidence, p. 478, par. 498, says: “It is impossible to dispense with this kind of evidence, especially in proof of remote and collateral mattersbut tribunals should be on their guard when the actual point at issue in a cause depends wholly or chiefly upon it. It is from its nature very much exposed to fraud and fabrication.” (Italics ours.) The controversy is limited to proof of heirship within a certain age. It is the only point at issue.

There is ho desire on our part to recall our decision in this case on this point. The certificate is properly before the court, and though in some respects it does not make proof of the fact staled it was admitted as competent evidence.

■ The purchaser apprehends that question will arise in regard to the validity of the title if there are minors, or major heirs, as to whom the prescription of five years would not apply.

In order that he may purchase the property, free from all clouds and doubts, he desires that the case be remanded to allow the explanation by testimony of the family tree and the curate’s certificate.

We can conceive of no good reason to deny to him the opportunity of thus sustaining the evidence, if the facts justify, in order that his title may be absolutely legal and valid.

It is therefore ordered that the judgment of the District Court herein be reversed, and that the case be remanded to the lower court ■¡exclusively to hear evidence to be produced by defendant and appellant, within reasonable time, regarding the correctness vel non of the family tree and of the curate’s certificate, and such other evidence'as may be needful to prove that there are or that there are not minors or major heirs to whom the prescription of five years may or may not apply, and that such judgment be rendered on that question as the law and facts will justify (and if there are no minor or major heirs to whom prescription does not apply, that judgment be rendered for plaintiff). Costs in both courts to abide the final ■determination of the cause.


author: Watkins, J.

text:
    No. 11,564.
    Sam. Henderson, Jr., vs. F. W. Ellerman.
    A tax sale made in exact conformity with the requirements of Act 82 of 1884, and the principles announced in the Lahe [40 An. 142] and Douglass [41 An, 765] cases, will be affirmed to pass a legal and valid title — there being no question raised as to the legality in the assessment of the property.

      APPEAL from the Oivil District Court for the Parish of Orleans. Theard, J.

      William 0. McLeod for Plaintiff, Appellee.

      Ernest J. Wench for Defendant, Appellant.
   The opinion of the court was delivered by

Watkins, J.

The object of this suit is to compel defendant to accept title to certain lots of ground situated in the city of New Orleans, pursuant to his contract with the plaintiff.

It is in the usual course of such proceedings.

The answer of the defendant is a general denial, coupled with the special defence that the plaintiff did not tender him a clear and unencumbered title; that the title tendered is of no value, the true owner never having been divested of his.title by the tax collector’s sale to plaintiff’s author — said property having been sold for taxes of 1872 to 1879, inclusive, “ without due process of law, or notice to said owner.” That it does not appear that said Edward Dans — “the original and true owner” — at the time was a resident of this city, nor that he was alive; and that said sale, in default of due process, is an absolute nullity.

The final averment is “that unless plaintiff tenders a clear and un-incumbered title,” he is not obliged to comply with his contract to purchase from the plaintiff.

From a judgment in favor of the plaintiff, the defendant prosecutes this appeal.

The plaintiff acquired title from Patrick Harnan, who was adjudi-catee thereof, at a tax sale made on 14th of September, 1885 — the property having been sold for the delinquent taxes of Edward Dans.

Reference to the tax collector’s deed discloses the following facts, viz. :

1. That in making said sale the tax collector acted under authority of Act 82 of 1884.

2. That the sale was proceeded by advertisement that said property would be sold for all unpaid taxes due thereon prior to December 31, 1879.

3. That said advertisement included the description of the prop.erty, same as that of property in suit, and was to be sold as the-property of Edward Dans, to enforce the payment of the unpaid taxes due on same for the years 1872, 1873, 1874, 1875, 1876, 1877 and 1879, aggregating the sum. of forty-one dollars and forty cents due to the State, and unpaid at the time of the sale.

4. That said taxes were duly and legally assessed in the name of Edward Dans for those several years, and of said property Edward Dans, or his estate, or his heirs are the present owners.

5. That after having complied with all legal requisites he sold said property at public auction and adjudicated same to Patrick Harnan for the sum of twenty-five dollars, he being the last and highest bidder; said bid being in full and final payment and satisfaction of all the State, city, parish and municipal taxes due on said property prior to December, 1879, according to the provisions of Act 82 of 1884.”

6. That there were due on said property at that time city taxes to the city of New Orleans for the same years in which the State taxes-enumerated are due, aggregating in amount forty-eight dollars and fifty cents. (

7. That in pursuance of the provisions of Act 82 of 1884, and in consideration of the aforesaid sum of twenty-five dollars paid by said Patrick Harnan, the receipt whereof is acknowledged, he, the tax collector, for and in the name of the State, sold, assigned, transferred and delivered to said purchaser said property and improve-, ments, granting and .giving to said purchaser an absolute and irredeemable title to said property, with the right to immediate possession thereof, and free from all mortgages, liens and privileges,” etc.

In addition to the proof furnished by the recitals of this deed, and the admission that the plaintiff had purchased the property from the adjudicatee, there was put in evidence extracts from the assessment rolls for all the years that are enumerated in the deed, which show that the property was actually assessed in the name of Edward Dans.

The advertisement of the tax sale was also put in evidence, and it fully conforms to the recitals in the act of sale.

There was produced and filed in evidence a certificate from the conveyance office, showing no alienation of said property at any time by Edward Dans to any one.

The tax adjudication was evidenced by an authentic title of due form, executed on the. 6th of February, 1886, and duly registered in the conveyance office on the same day.

There is an admission in the record to the effect that the property was purchased by Edward Dans from John Heim, by an act of sale passed before Romando de la Cueva, a notary public of the city of Mexico, on April 9, 1860. That a copy of this act was deposited by John Kruttschnitt, acting as the agent of said Dans, with the records of F. Grima, notary of this city, on July 25, 1860, evidenced by an act of deposit duly recorded in the office of the register of conveyances.

The plaintiff testifies that he is in possession of the property as owner, and has paid all the taxes upon it. Says that he has made numerous inquiries, and has tried to ascertain the whereabouts of Edward’ Dans without avail. He could not be found. Says that he did not know at the time that he acquired this property that Dans was a resident of Mexico.

There is no proof on the subject. This is all the evidence the record affords.

On this state of facts the only points made or c intended for by defendant’s counsel are: (1) that it does appear “that Edward Dans was a resident of Mexico; ” and (2) that the burden was on the plaintiff to have proven that Edward Dans, the delinquent taxpayer, was alive, and a resident, or if dead, that his heirs were duly notified of the sale of the property for taxes, and at the time of the publication of the advertisement of the sale of the property of said delinquent.

And the contention of defendant’s counsel is that as there is no proof of notification having been given to the delinquent or to his heirs, the sale was absolutely void.

The tax sale under consideration was made under the same legislative act that the sale was made to Orloff Lake, and which this court had occasion to examine and interpret in the case entitled In, the Matter of Orloff Lake, 40 An. 142.

Amongst the numerous defences made in the ease, one was that no party “interested in said property did receive any notice of said sale;” and the further point was made that the law was unconstitutional and void, inter alias, because it “provides for notice by public citation only, in violation of Art. 210 of the Constitution” — a point not made in this case.

An examination of that decision will show that notice of sale falls within the fifth paragraph of that statute, which enumerates the non essential requisites of a tax sale, of the performance of which the tax deed is declared to furnish conclusive evidence, viz.:

“5. That all of the prerequisites of the law were complied with by all the officers, from the assessment up to and including the execution and registry of the deed to said purchaser,” etc.

And upon careful consideration and analysis of the provisions of that statute, we said:

“ The Legislature only intended to provide the manner in which valid sales could be effected of property on which delinquent taxes are due the State prior to the year 1879, and whereby such taxes could be collected.”

We further held that, inasmuch as tax delinquents had neglected to avail themselves of the grace provided for in the constitutional ordinance for the relief of delinquent tax-payers, by paying the principal of the taxes due within the time specified, that “the property upon which the taxes and licenses are due shall be sold in the manner to be provided by law, and the title of the purchaser shall be full and complete.”

This is the language of the organic law. It declares in plain and emphatic terms that in the event of the tax delinquent’s non-acceptance of the grace of the ordinance, that the property subject to the taxes “shall be sold in the manner provided by law;” that is, “in the manner ” the General Assembly might thereafter direct. In the exercise of that constitutional mandate the General Assembly enacted Act 82 of 1884, and of the provisions of that act we said in the Lake case, viz.:

“It deals exclusively with the proceedings necessary to effectuate sales of such property as is subject to such delinquent taxes, and the execution and effect of tax titles evidencing such sales. It is a remedial law authorized by the terms of said ordinance.”

This suit is exactly parallel to Martin vs. Langenstein, 43 An. 791, and which was, by our opinion therein, distinguished from Breaux vs. Negrotto, 43 An. 426, which involved a sale made under Act 77 of 1880, in the collection of “ unpaid taxes of 1881,” a wholly different question from the one presented here.

Inasmuch as the act is a highly penal statute and authorized by the terms of the ordinance, the Legislature had unrestrained authority over the manner in which such ' sale should be made, and over proceedings incident and leading up thereto.

In the ease of In re Douglass, 41 An. 765, the same act was again carefully scrutinized and considered, and the validity of a sale under it was affirmed.

Of that statute we said: “ It is a remedial and healing statute, * * * the effect of which is to cure defects in prior tax proceedings by making the tax deed conclusive evidence that the requirements of the law in certain matters had been complied with.”

Again: “ But outside of these fundamental and quasi-jurisdictional requirements, and with reference to the time and manner, in which the tax proceedings shall be conducted, the legislative discretion is supreme and can not be judicially controlled.

And the Legislature may, in advance, prescribe and direct the time and manner in which they shall be done, * * * and may constitutionally provide that the tax deed shall be conclusive evidence that such directions were complied with, as to time, manner, and every other matter originally within the legislative discretion.”

These two decisions were most carefully considered and deliberately expressed, and have been constantly adhered to since, without any modification in respect to salé proceedings.

The case of Augusti vs. Heirs of Lawless, 45 An. 1370, dealt with the question of assessment — one of the essential elements of tax proceedings and sale — a question not propounded in the instant case.

We have been thus careful because of the fact that a somewhat similar question was raised and decided recently by the Supreme Court in Marx vs. Hanthorn, 48 U. S. 172. But a simple inspection of the opinion in that case shows that it is wholly different from the Lake and Douglass cases, in that it treats of an ordinary tax statute, enacted by the Legislature of the State of Oregon — one not grounded upon a constitutional provision, as Act 82 of 1884 is. That opinion says: “ It is competent for the Legislature to declare that a tax deed shall be prima facie evidence not only of the regularity of the sale and of all prior proceedings, and of the title of the purchaser, but that the Legislature can not deprive one of his property by making his adversary’s claim to it, whatever that claim may be, conclusive of its own validity, and it can not therefore make the tax deed conclusive evidence of the holder’s title to the land.”

But no such power as that was ever by this court affirmed to exist in the Legislature, even under the unlimited grant of authority that is contained in the constitutional ordinance.

On the contrary. it was distinctly affirmed “that precedents are not wanting to show that in several sister States their Legislatures have been recognized as having the power of making such deeds conclusive as to non-essential prerequisites, but the exercise of legislative power has never been sanctioned so as to make such deeds conclusive as-to essential prerequisites.”

The two decisions are not at all in conflict, and they may stand together. This more fully appears by other decisions of that court.

But an examination of that case will show that the Oregon tax statute therein involved only made, under circumstances detailed, the tax title prima facie evidence of the ordeily course of proceedings in effecting the sale, and that it did not declare that in any event the tax title should furnish conclusive evidence thereof.

In Callahan vs. Hurley, 93 United States, 387, the Supreme Court affirmed the validity of an Iowa statute exactly similar in terms to those of our Act 82 of 1884. In that case complainant set up his title as an enterer of the lands from the government, and the defendant claimed ownership under a tax sale made in 1864. After'quoting from the statute — vide page 389 — the court say:

“The whole act exhibits an intention of the Legislature to enforce the payment of taxes by securing purchasers at tax sales in their purchases, and thus make it dangerous for owners of property to neglect payment of taxes due the State. It removes difficulties which had before existed in the way of establishing a tax title, and at the same .time it works no injustice to owners of land subject to taxation.”

In speaking of the tax title they say:

‘ ‘ If the act is to have any effect at all, it is plain that the deed cuts off most of the averments upon which the plaintiff bases his attempt to obtain the cancellation he seeks. It is not open to him to aver and prove any allegation he puts forward to establish the invalidity of the deeds, except that the property was not subject to taxation, and that there was a fraudulent combination of the defendant with others to prevent bidding.”

The court after considering the matter very carefully said:

“All the questions presented in this case have been decided by the Supreme Court of Iowa, and decided adversely to the complainant. Phelps vs. Meade, 41 Iowa, 470. That ease was an attemptto set aside a tax deed of lands sold by the treasurer of Oass county at the sale in January, 1864. The averments of the bill were the same as those made in this case, and the case was heard upon the evidence taken upon the case now before us. The rulings of the court were, that, if there was a bona tide sale, in substance or in fact, the tax deed is conclusive ■evidence that it was made at the proper time and conducted in the ¡proper manner. And when a deed, regular in form, recited that the ■land was sold * * * it was held that a sale made at any time ■during the continuance of the sale (for delinquent taxes) was valid,” •etc.

The decree of the court dismissed complainant’s bill and enforced ’■the tax title.

In De Treville vs. Smalls, 98 United States, 517, the court sustained a sale made under an act of Congress of February 6, 1863, similar in terms to our statute, and the court say :

“No doubt it has been decided that statutes which, make a tax sale prima facie evidence of the regularity of the sale do not relieve •a purchaser from the burden of showing that the proceedings ante-ador and necessary to the power to make the sale actually took place.'

“ But the act of 186,3 declares that the commissioner’s certificate •shall be prima fado evidence, not merely of the regularity of the sale, but also of its validity and of the title of the purchaser; and it enacts that it shall only be affected as evidence of the regularity and validity of the sale by establishing the fact that the property was not subject to taxes, or that the taxes had been paid previously to the sale, or that property had been redeemed. How can a deed be prima facie evidence of the validity of a sale unless it be such evidence of the transmission of the title of the property? Is any sale valid which does not pass the title to the subject of the sale? It may be regular in form and in the mode of its conduct, but it can not be valid, unless authorized by law. Now the act of Congress makes a certificate of sale by the commissioners evidence that the title acquired by the purchaser under the sale is a valid onfe, assailable only by proof of one or the other of three things.”

The court then said that it was “not unmindful of the numerous •decisions of State courts, which have construed away the plain meaning of the statutes providing for the-collection of. taxes,” and concluded thus:

“To meet this tendency of judicial refinement very many States have of late adopted very rigid legislation. The acts of Congress we are considering must have had it in view.- Hence the stringent provisions they contain. They declare, in effect, that the certificate of the commissioners’ sale shall be evidence of compliance with the preliminary requisites of the sale, and that this evidence shall be rebutted only by proof of one or the other of three specified things. There is no possible excuse for not enforcing such statutes according to-their letter and spirit.”

' In favor of like construction and enforcement of similar statutes, the court in its opinion cited with favor the following cases, viz.: Gwynne vs. Neiswanger, 18 Ohio, 400; Allen vs. Armstrong, 16 Iowa, 508; Tharp vs. Hart, 2 Sneed (Tenn.), 509.

The principles therein announced werereannonnced and affirmed in Keely vs. Sanders, 99 U. S. 441, and Sherry vs. McKinley, 99 U. S. 496.

The doctrine of these three decisions of the Supreme Court affirms the principles announced in the Lake [40 An. 142] and Douglass. [41 An. 765] cases, and more fully confirms our conclusions as to the validity of the title tendered by the plaintiff.

The sale of the property in controversy was made in strict conformity with the provisions of Act 82 of 1884, and we must, therefore, align onr opinion with the views entertained by us in the Lake and Douglass cases, and uphold the validity of the adjudication to-plaintiff’s author and compel the defendant to accept and complete the title tendered him.

Judgment affirmed.


text:
    No. 11,522.
    Canal & Claiborne Railroad Company vs. Crescent City Railroad Company.
    Under City Ordinance 1204 plaintiff acquired a street railroad franchise on Canal street, in the city of New Orleans, containing a certain reservation therein. Subsequently the defendant acquired a similar franchise under thereservation of said ordinance. Soon afterward the franchise of plaintiff lapsed under its-contract In the meanwhile litigation arose between the two companies with regard to plaintiff’s right to claim trackage of the defendant, which resulted in a judgment in favor of the latter. Thereafter plaintiff acquired a new grant under another ordinance, which conferred the right to charge trackage.

      Meld, that the judgment between the parties in said former litigation operates as res adjadicata againstthe plaintiff, with respect to its assertion of its claim for trackage under its new grant — said grant and thOj city ordinance under which same was acquired not having the effect of changing the relations of the parties so as to defeat the effect of the previous judgment.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      J. B. Beckwith for Plaintiff, Appellee.

      J. M. Bonner for Defendant, Appellant.
   The opinion of the court was delivered by

Watkins, J.

The plaintiff claims of the defendant a compensation, in money for the use of its track on Canal street in the city of New Orleans in running its cars, placing the quantum meruit value of said use at the rate of four cents per mile trackage, from the 8th of May, 1887, to the 8th of April, 1892, with legal interest, equal to twelve thousand four hundred and five dollars.

It is stated in the petition that the street railroad grant to Labuzan and his associates was acquired by its successor, the Canal & Claiborne Streets Railroad Company; and that this grant was limited as to time, and contained a provision by which, at the expiration of the grant, the city could acquire the roadway and installation upon paying a price to be fixed by a form of appraisement provided for in the grant. “This first period of franchise terminated by limitation with the 7th of May, 1887.”

It is further alleged that the second era, or period in the existence of the railroad, commenced on the' 8th of May, 1887, and terminated with the 30th of December, 1887, and was the result of an alleged interregnum which was occasioned by the non-action of the city, during a possible period.of deliberation on the partof the authorities as to whether it would take the roadway at an appraisement or resell the franchise.

That this interregnum was terminated by the city granting a new franchise, under a fixed period, commencing on the 30th of December, 1888. • ■

Claim is then made that the Canal & Claiborne Streets Railroad Company held possession of its tracks and property, and, as custodian without any grant beyond an implied license springing from the relations of the parties, used and operated same during this alleged interregnum, referring to the ease of the Canal & Claiborne Streets Railroad Company vs. City of New Orleans, 39 An. 709.

Upon this hypothesis the statement is made that during the aforesaid interval of time between the- 8th of May, 1887, and the 30th of December, 1887, the company’s tracks were operated free from the conditions of the expired grant and unaffected by the conditions of the ■new grant, under which they have been operated since that time.

It is then alleged that the third era of the company’s existence is the existing grant or franchise growing out of the contract of December 30, 1887, which is one in priesenti and in futuro only, taking the latter as the date of its commencement, it having been adjudicated at public auction to the highest bidder.

The purpose of these declarations is to separate and keep separated the three distinct periods .of the existence of the fran•chise, with the distinct view and purpose of keeping separate and distinct plaintiff’s contract rights thereunder, as well as his right to claim of the defendant trackage, under the specific terms and conditions of the latter grant; and it is in furtherance of this view that plaintiff amended its petition and entered a disclaimer of compensation for the period between the 8th of May, 1887, and the 1st of January, 1888, thus “ confining the demand, as originally intended, to ■the period covered by the now existing grant which had been •acquired by plaintiff, by purchase from the old Oanal & Claiborne Railroad Company, as shown in the petition.’ ’

Claim is made for the trackage of 246,947 miles, at four cents per mile; and, entertaining the plaintiff’s theory, the court a qua gave it judgment for the sum of nine thousand eight hundred and seventy-four dollars and eighty-eight cents, and therefrom the defendant has appealed.

Preliminarily, the defendant plead as a bar .to this action the plea i©f res adjudieata and the prescription of two years, and those pleas having been overruled, it filed an answer.

Elaborated, the plea of res adjudieata is that all the matters and things set up in the petition were definitely determined in the suit No. 11,888 of the docket of this court, entitled Canal & Claiborne Streets Railroad Company vs. Crescent City Railroad Company; and defendant pleads the judgment and record in that suit as a conclusive bar in this case;” that is to say, the case having same title and bearing the number on the docket of this court, 10,343. Vide Canal & Claiborne Streets Railroad Company vs. The Crescent City Railroad Company, 41 An. 561.

Referring to the reasons for judgment in this case that were assigned by the judge d quo, we find the following, viz.:

I am of the opinion that the plea of res judicata is not well taken. The plaintiff has made formal abandonment of all claim for the use of its tracks prior to the 1st of January, 1888, and no part of the claim, urged since said disclaimer or abandonment in this suit, was embraced in this suit, the judgment in which is here pleaded in bar as the thing adjudged. Besides examination shows that the demands and cause of action are not the same in that suit and this suit, and even if they were, express reservation was made of plaintiff’s right, to sue, as is done herein, for damages or reimbursement for defendant’s use of plaintiff’s tracks and trunk line,” citing The Canal & Claiborne Street Railroad Company vs. The Crescent City Railroad Company, 41 An. 561; Canal & Claiborne Railroad Company vs. Crescent City Railroad Company and Electric Traction and Manufacturing Company, 44 An. 485.

In order to determine the effect of the judgment assigned as operating the bar of res adjudicata to this suit, it will be necessary to look into the judgments of this court and of the Civil District Court, from which same was appealed, the decree of-this court having simply affirmed the judgment that was appealed from.

We have therefore made the following extracts from the opinion of the judge a qua in suit No. 10,343, The Canal & Claiborne Street Railroad Company vs. The Crescent City Railroad Company, 41 An. 561, viz.:

“ In the plaintiff’s original petition, filed August 1, 1884, it is alleged that under a grant from the city of New Orleans the plaintiff constructed a street railway at its own expense, and for its own exclusive use, and that no other company was entitled to use the same without plaintiff’s consent.

“That in September, 1881, the defendant began using a portion (thirty-nine hundred feet) of said road without color of lawful right, and continued thus unlawfully, and without petitioner’s consent, and against its will and protest, up to date of filing petition (August 1, 1884).

“ That said conduct operated injuriously to plaintiff by taking ■ from it a portion of the business pertaining to that part of the track, and by increasing the expense of maintaining the same, and that the increased expense would amount to, or would not be more than compensated by the payment of, four cents per mile for each mile traveled by each of defendant’s' cars on said portion of track so used.

That defendant threatens, unlawfully and without plaintiff’s consent, to use said track, prays judgment in the sum of seven thousand one hundred and thirty- six dollars and ñfty-six cents as the aggregate mileage or trackage claimed at four cents per mile, and for a perpetual injunction to restrain further use, etc.

“ In January, 1888, an amended petition was filed reiterating the .principal averments of the original petition, setting forth the continued use of the track and alleging a new grant by the city to plaintiff, under the terms of which plaintiff was bound not to charge other roads more than four cents a mile; the claim for the injunction was, therefore, abandoned and the money demand increased to an .aggregate sum of fifteen thousand and forty dollars and fifty-six cents, being total trackage alleged to be due from September 1, 1881, to December 25, 1887.

“The defence is:

“ 1. That under the grant from the city to the plaintiff, the latter expressly reserved the right to grant to other roads the privilege of using the particular portions of track in question upon certain terms, which have not been complied with, only because of the refusal by the plaintiff of its necessary co-operation.

“2. That plaintiff has judicially admitted, in suit No. 5500 of the docket of this court, being a suit by the same plaintiff against the same defendant, that defendant had been granted the right to use the track in question, and is, therefore, estopped from denying the existence of such a right.

“3. That the trackage is not worth four cents per mile. As far as concerns that portion of plaintiff’s road about which this litigation has arisen, the plaintiff’s rights are conferred by Ordinance 1204, N. S., which, after granting plaintiff the right to lay its track on a certain part of Canal street, including that portion which is now in con • troversy, goes on and provides as follows, to-wit:

“ Should the city of New Orleans at any time during the existence of the contract of the 6th of May, 1867, between it and the Canal & Claiborne Street Railroad Company, enter into any agreement with other companies whereby said road on Oanal street, from Claiborne street to Front Levee street, and from Front Levee street or any part thereof, may be granted the city of New Orleans, or the road or roads to which the privilege may be granted, shall reimburse the Canal & Claiborne Street Railroad Company a fair and reasonable proportion of the value of the portion or portions of the road to be so used; and should said proportion not be agreed upon between said Canal & Claiborne Street Railroad Oompany and the city of New Orleans, or the said road or roads, two disinterested persons shall be appointed, one by the city of New Orleans or the road or roads, as the case may be, and the other by the Canal & Claiborne Railroad Company; and in the event of a disagreement as to said proportion to be paid between said persons thus appointed, a third person or umpire shall be appointed by the judge of one of the District Courts of the parish of Orleans and the decision thereby had shall be final and binding.

“I have italicized certain language in the foregoing extracts as bearing particularly upon the issues in this case. It will be observed that plaintiff alleges that ‘ on the 1st day of September, 1831, the said defendant, without any lawful right or permission from petitioners to do so, wrongfully commenced drawing and propelling its passenger cars over said track,’ etc. The fact, however, is that the permission of the plaintiff was given, and the plaintiff’s superintendent aided the defendant’s officers in running properly; and evidence was offered on the trial, not to show that plaintiff had not consented, but to show that plaintiff had consented to defendant’s using the road; the claim on the one hand being that the consent was given with the understanding that the defendant would pay trackage, and, on the part of defendant, that whilst no consent was asked, no objection was made, and defendant began the use of the road, as it began the use of every portion of its newly constructed track, by virtue of its grant from the city. * * *

“It is clear, however, that defendant began using plaintiff’s road with plaintiff’s permission, and the evidence shows that defendant had also the necessary authority or grant from the city of New Orleans (exercising the reserved rights as provide.d in the Ordinance No. 1204 already quoted), said grant having been made previously to Shelby Seymour and Chas. H. Chase, by Ordinance No. 1222 (November, 1871) -, and having been thereafter acquired by defendant.

“It further appears that within a short time after defendant began to use the road in question, to-wit, within six weeks, the issue between the two corporations was squarely made as to the question of terms, the plaintiff demanding trackage and the defendant offering to reimburse a proportion of the cost of the road used by it, as provided by Ordinance No. 1204, and this I understand the defendant has ever been willing to do, as also to bear its proportion of the cost of maintenance of the road used by it. Neither the law or the contract require anything more, nor has the plaintiff the right to demand anything more. The theory that that reservation of right contained in the ordinance depended upon a condition which was never fulfilled, has, in my judgment, but feeble support. The language of the reservation is clear, positive and unmistakable, whilst the provisions of the ordinance and the circumstances relied on as imparting a condition, the non-fulfilment of which defeats the reservation, taken together, utterly fall short of the effect attributed to them.

“The plaintiff’s demand should therefore be rejected at plaintiff’s costs, without prejudice, however, to any rights which plaintiff may have in reimbursement under the terms of Ordinance 1204, N. S., or for proportionate cost of maintaining so much of its road as now used by defendant.”

Judgment.

“For the reasons assigned in the written opinion of the court, this day delivered and filed—

“ It is ordered, adjudged and decreed that the demand of the plaintiff, the Oanal & Claiborne Street Railroad Company, be rejected at its cost, without prejudice, however, to any rights which said plaintiff company may have against the defendant, the Orescent Oity Railroad Company, for reimbursement under the terms of Ordinance No. 1204, N. S., or for proportionate cost Of maintaining so much of its road or track as is used by said defendant company.” R. No. 10,343, pp. 261, 262.

The appreciation the judge a quo had of that case was, first, that the plaintiff demanded trackage; and, second, defendant offered reimbursement of a proportion of the cost of the road used by it as provided by Ordinance No. 1204; and proceeding upon this hypothesis the judge decreed that “the plaintiff’s demand should therefore be rejected at (its) cost, without prejudice, however, to any rights which plaintiff may have in reimbursement under the terms of Ordinance 1204, N. S., or for the proportionate cost of maintaining so much of its road as now used by defendant.”

In decision of the case this court said:

“There is but one question to determine in this ease. Was the defendant company authorized by legislative provisions to use the track of the plaintiff, and in granting the permission was the mode of compensation fixed? ”

Finding both of these propositions to be affirmed, under the provisions of Ordinance 1204, N. S. (which is quoted at length), and the law, the opinion declares that the “ plaintiff company has failed to follow the requirements of the ordinance,” and affirmed the judgment of the lower court.

In this situation of affairs, what was the remedy and relief that remained to the plaintiff? Olearly that which is covered by and included in the terms of the District Judge’s reservation — for the judgment formally and in terms rejected the demands of plaintiff for traehage and reserved its right to claim “ reimbursement under the terms of Ordinance 1204, N. S., or for proportionate cost of maintaining so much of its road as (is) now used by the defendant.”

Referring to the Ordinance 1204, N. S., we find it contains the express stipulation that the city reserved the right to enter into agreements with other companies than the plaintiff for the use of plaintiff’s trunk line on Canal street or any part thereof, and further stipulated that in ease other grants were made, then and in that event “the city of New Orleans, or the road or roads to which the privilege may be granted, shall reimburse the Canal & Claiborne Street Railroad Company a fair and reasonable proportion of the value of the portion or portions of the road to be so used,” etc. Considering the quoted averments of the plaintiff’s petition, the terms, conditions and reservations of the judgment pronounced, and the provisions of Ordinance 1204, N. S., it seems to be an irresistible conclusion that the same identical issues are involved in both suits, and, if so, the plea of res adjudieata is good, and should have been maintained in the lower court.

In each suit, like demand is made by the plaintiff for trackage of the defendant for the self-same section of its trunk line on Canal street, between Oarondelet and Wells street, near the Mississippi river.

The only differences suggested between the instant suit and the previous one are, (1) that claim is made in this suit for trackage under its contract and franchise acquired from the city on the 30th of December, 1887, which stipulates for the payment of trackage; (2) that Ordinance 1204, N. S., was repealed, and, consequently, its provisions are no longer in force.

While it is true that plaintiff entered a remittitur of that portion of his demand embraced within the so-called interregnum between the 7th of May, 1887, and the 30th of December, 1887, yet it appears that plaintiff’s predecessor filed said former suit, claiming trackage, on the 1st of August, 1884, and therein alleged that the defendant commenced using the portion of its road on Canal street, the same that is now in controversy, in the month of September, 1881.

It further appears in said former suit, and it is so stated in the judge’s reasons for judgment in that case, that in January, 1888, after it had acquired its new franchise from the city, on the 30th of December, 1887, the plaintiff filed an amended petition “ alleging a newgrant by thecity to plaintiff, under the termsof which plaintiff was bound not to charge other roads more than four cents a mile,” thus resting its claim for compensation in that suit upon its new franchise, the benefit of which it at first claimed in this suit, but afterward abandoned, on the theory that the three different periods of the franchise and of interregnum were, essentially, distinct and different.

It is evidently too late now to disclaim the compensation alleged for trackage earned during the alleged interregnum prior to December 30, 1887, after having, in the former suit, set up the new grant of that date, as justifying the allowance of four cents per mile track-age during the period of the first, or Labuzan grant, subsequent to the defendant’s occupation of its tracks in August, 1881.

Certainly, plaintiff’s remittitur in this suit can not avoid the effect of its judicial averments made in the very suit that defendant pleads as res adjudicata.

With respect to the repeal of Ordinance 1204, it appears that the rights of the Canal & Claiborne Streets Railroad Company under the Labuzan grant expired on the 8th of May, 1887, yet said ordinance was not repealed until some date in 1882, and, therefore, it was in full force and effect at the time defendant acquired its franchise, in 1881. And hence, at the expiration of the Labuzan grant, and at the date plaintiff acquired its new grant, on December 30, 1887, the grant in favor of the defendant was in proprio vigore.

We find this theory fully confirmed in a more recent decision of this court, to which same plaintiff and defendant were parties, with others, viz.: Canal & Claiborne Streets Railroad Company vs. Crescent City Railroad Company et al., 44 An. 485.

In our opinion in that case we find it stated that, in the plaintiff’s petition, it is averred “that the Canal & Claiborne Streets Railroad Company acquired from the city of New Orleans a grant to operate a street railway for the term of twenty-four years, on and over Canal street, * * * the time of which grant commenced to run from, the 8th of May, 1887.

And it is therein further stated that in July, 1888, the present plaintiff acquired all the rights of the Canal & Claiborne Streets Railroad Company, thereby judicially admitting that it had not acceded to the aforesaid rights of its predecessor until very nearly seven years after the time defendant had acquired its franchise.

Under this view plaintiff acquired its new grant cum onere, and subject to all the stipulations and conditions that are contained in the defendant’s franchise, as well as of Ordinance 1204, same being operative at the time the city granted the said franchise, and constituting a part of it, notwithstanding the subsequent repeal of the ordinance.

That repeal could not operate retrospectively and be given the effect of diverting the defendant’s acquired rights under the express provisions of its grant and of the ordinance. The rights of the defendant were acquired with direct reference to the provisions of Ordinance 1204, and to the grant plaintiff had acquired from Labuzan and associates. It was also with direct reference to the time of the expiration of that grant that the plaintiff acquired its new one. The effect of the repeal of the ordinance must be in futuro.

It is therefore plain that notwithstanding the plaintiff may make claim for trackage against those subsequently acquiring franchises over its tracks in place, yet it can not successfully prefer such claim against the defendant. It is, consequently, equally plain that we are confronted, in this case, with identically the same issue as those raised and decided adversely to the plaintiff in the former suit.

If it were possible to accept plaintiff’s theory of an existing interregnum of franchise between May 8, 1887, and December 30, 1887, the breaking of the continuity of its grant alone would not help the matter, because even this theory would leave defendant’s franchise unaffected, and Ordinance 1204 in full force quoad defendant’s grant; under both of which defendant’s possession began, and, necessarily, continues in force to the present time. The acquisition of the new grant by the plaintiff was subordinated thereto.

Our attention is attracted by plaintiff’s counsel to the further statement of the judge a quo to the effect that “ it may also be noted that the decree of the Supreme Court in Canal & Claiborne Railroad Company vs. Crescent City Railroad Company and Electric Traction and Manufacturing Company, 44 An. 485, 492, made express reservation of plaintiff’s right to sue, as herein.”

It is observed, also, that that suit was one not only against the defendant, but against another party; and the relief prayed for was not compensation for the occupancy and use of the plaintiff’s tracks, but to enjoin and prohibit the two defendants from entering upon its tracks at all. Therefore, the reservation of the judgment can not be given any broader effect than the averments of the petition justify; and, in any event, they must be considered and determined in connection with the previous judgment and decree.

Upon a careful consideration of this case in all its bearings, and of the suit and judgment relied upon as forming res adjudicata, our conclusion is that the plea should have been sustained in the lower court, and that the judgment appealed from should be reversed.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed, and that the plea of res adjudicata be sustained, and the suit dismissed at plaintiff’s cost in both courts.

Rehearing refused.


text:
    No. 11,664.
    A. G. Frere, Sheriff and Ex-Officio Tax Collector, vs. Victor Von Schoeler.
    The nineteenth paragraph of the eighth section of Act 150 of 1890, which imposes a license tax upon every person who shall engage in the business or avocation of operating one or more towboats, to be graduated according to the gross annualreceipts of said business, is illegal, unconstitutional, null and void, because it is in conflict with and contrary to tlic provisions of the third clause of the eighth section of Art. 1 of the United States Constitution, familiarly known as the commerce clause; it appearing that the defendant was operating his boats under alicense or permit from the United States Government, and that his towboats were engaged in traversing the waters of the Bayou Teche, and the Atcbafalaya and Mississippi rivers and their tributaries, and in operating between different States.
    APPEAL from the Seventeenth District Court, Parish of St. Mary. Allen, J.

      J. Sully Martel for Plaintiff, Appellee.
    D. Caffery & Son for Defendant, Appellant.
   The opinion of the court was delivered by

Watkins, J.

This is a proceeding on the part of a tax collector, by rule on the defendant to show cause why he should not be compelled to pay a State and parish license of thirty dollars each for prosecuting the business and occupation of running and operating the towboat Jim Watson within the limits of the parish of St, Mary in this State, or in default of so doing, that he be adjudged and condemned to cease the further pursuit of said business or occupation.

The defendant’s answer is, in effect, that the statute of the State under which the aforesaid licenses are exacted, paragraph 19 of Sec. 8 of Act 150 of 1890, is unconstitutional, null and void, because same conflicts with and is contrary to the interstate commerce clause of the United States Constitution, and hence the licenses claimed can not be imposed.

The answer admits that defendant is engaged in the occupation designated in the rule and in the statute, but its representation is that he has already paid and has in his possession a license from the United States Government, and that such license entitles him to pursue his occupation, which is that of operating towboats in the various navigable water-courses of Louisiana, Mississippi, Arkansas, Ohio and Pennsylvania, and embracing those of the Bayou Teche, the Atchafalaya and Mississippi rivers and Gulf of Mexico, without the payment of any additional exaction, such as that which is sought to be imposed under the license law of Louisiana.

The evidence shows that the area of defendant’s operations with his towboats is similar to that indicated in the answer.

The defendant comes within the purview of the statute.

Is it unconstitutional?

The act levies a license tax of thirty dollars upon “ every business * * * of operating one or more towboats or tugboats * * * based on the gross annual receipts of said business.”

And paragraph nineteen of the eighth section of the statute declares that “ when the receipts are less than twenty-five thousand dollars the license shall be thirty dollars.” Par. 19, Sec. 8, Act 150 of 1890.

This is ah occupation license tax, and the same is to be collected of the person pursuing the avocation or business, and it is in no sense a property tax assessed against the property that is employed in'the business of the owner, nor is it a tax levied on the cargo or boat. Parish of East Feliciana vs. Levy, 40 An. 332.

A question somewhat analogous to the one presented for our consideration is discussed and decided by the Supreme Court in State Tax on Railway Gross Receipts, 15 Wallace, 284.

In that case the question was whether the act of the Pennsylvania Legislature, levying a tax upon a railroad company of three-quarters of one per cent, upon the gross receipts of the company, was in conflict with the commerce clause of the United States Constitution, (third clause, eighth section, first article United States Court) — it being therein claimed and contended that the act was unconstitutional in so far as it taxes that “portion of the gross receipts of companies which are derived from- transportation from the State (of Pennsylvania to another State, or into the State of Pennsylvania from another State) ; and the Supreme Court of the State (of Pennsylvania) having decided adversely to the claim, the case (was) brought up for review.”

The court in passing on that question said:

“We think that such taxation maybe laid upon a valuation or may be an excise, and that, in exacting an excise tax from their corporations the States are not obliged to impose a fixed sum upon the franchises or Upon the value of them, but they may demand a graduated contribution, proportioned either to the value of the privileges granted or to the extent of their exercise, or to the results of such exercise. No mode of effecting this and no forms of expression which have no meaning beyond this can be regarded as violating the Constitution.”

Proceeding then to the discussion of the ease the court reach this conclusion, viz.:

“The tax is laid upon the gross receipts of the company; laid upon a fund which has become the property of the company, mingled with its other property, and possibly expended in improvements cr put out at interest. The statute does not look beyond the corporation to those who may have contributed to its treasury.”

And in conclusion the court add:

“ But we think it may safely be laid down that the gross receipts of the railroad or canal companies, after they have reached the treasury of the carriers, though they may have been derived in part from transportation of freight between States, have become subject to legitimate taxation.”

But the instant case does not present the question of a tax upon the gross receipts of the defendant's business at all. He is proceeded against by the short-hand, compulsory process of th6 revenue law, for the collection of a license or price of a permit to prosecute his avocation of operating towboats, and the alternative of the tax collector’s rule is that, on the defendant’s default in making payment of the license, he be adjudged and condemned to discontinue the prosecution of his avocation, notwithstanding he had previously obtained a license from the United States permitting him to pursue said calling.

The ease of Moran, Executor, vs. New Orleans, 112 U. S. 69, presents the issue here raised and, to our thinking, it is decisive of the controversy and conclusively against the contention of the plaintiff.

“ But the license fee in the present case,” say the court, “ is not a tax upon the boats as property, according to any valuation. The very law authorizing its imposition declares it shall not be construed to be a tax on property.

“It is said, however, to be a tax on an occupation, and for that reason not a regulation of commerce. If it were a tax upon the income derived from the business it might be justified by the principle of the decision in the case of the State Tax on Railway Gross Receipts, 15 Wallace, 284, which shows the distinction between a tax on transportation and a tax upon its fruits realized and reduced to possession, so as to become a part of the general capital and property of the tax-payer.

“But here is not a tax on the profits and income after they have been realized from the business. It is a charge explicitly made as the price of the privilege of navigating the Mississippi river between New Orleans and the Gulf, in the coastwise trade; as the condition on which the State of Louisiana consents that the boats of the plaintiff in error may be employed by him according to the terms of the license granted under the authority of Congress. The sole occupation sought to be subjected to the tax is that of using and enjoying the license of the United States to employ these particular vessels in the coasting trade; and the State then seeks to burden with an exaction, fixed at its own pleasure, the very right to which the plaintiff in error is entitled under, and which he derives from, the Constitution and laws of the United States. The Louisiana statute declares expressly that if he refuses or neglects to pay the license tax imposed upon him, for using his boats in this way, he shall not be permitted to act under and avail himself of the license granted by the United States, but may be enjoined from so doing by judicial process.

“The conflict between the two authorities is direct and express. What one declares may be done withoutjthe tax, the other declares shall not be done except upon the payment of the tax. In such an opposition, the only question is, which is the superior authority; and, reduced to that, it furnishes its own answer.”

There is no distinction between that case and the one before the court. The principle involved in each case is the same, and must control our decision.

And the Supreme Court, in the case cited, overruled the decision of this court in City vs. Towboat Company, 33 An. 647. Vide Sinnott vs. Davenport, 22 Howard, 227.

The judgment appealed from must be reversed.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that the demands of the plaintiff in rule be rejected at his costs in both courts.

Rehearing refused.


author: McEnery, J.

text:
    No. 11,626.
    Succession of Mrs. Jane K. Hill.
    Under Arfc. 1691, C. C., as explained by subsequent articles, there are only two modes of revoking a valid testament — the one by a -written instrument, clothed with the formalities of a last will and testament, and the other by donation inter vivos or a sule in whole or in part of the thing bequeathed.
    The defacement, obliteration or destruction of the will leaves no will in existence and the Code, probably for this reason, has not named the destruct on of the ' will as one of the evidences of revocation.
    The finding of a will in an unusual place, and its apparent abandonment among waste papers, if it is a valid will, does not raise a presumption that the testator intended to revoke it.
    After the placing of the will among waste paper, and it is offered to the testator, and ho refuses to receive it, saying he wanted it destroyed, his actions toward the’legatee, treating him as one he does not like, and his unsuccessful efforts to make another will, do not amount to arevocation. The fact that the testator had it m his power to destroy or obliterate the will, and failing to do so, and leaving it in existence, is a presumption that he intended it to be his last will and testament.
    APPEAL from, the Civil District Court for the Parish of Orleans. Theard, J.

      Frank L. Richardson for Plaintiffs and Appellants.

      Charles E. Fenner and Charles P. Fenner for Defendants and Appellants.
   The opinion of the court was delivered by

McEnery, J.

This is a suit by two collateral heirs of deceased to annul her last will and testament and to set aside its probate.

The petition avers that the deceased died on the 6th December, 1893, and that her succession was regularly opened and an administrator appointed; that the deceased left no forced heirs. That subsequently a paper, purporting to be the last will and testament of the deceased, was probated and a dative testamentary executor appointed; that an inventory was taken of her effects, amounting to forty-three thousand dollars in cash, which amount was in the hands of the executors for distribution. The petitioners allege that said paper writing purporting to be the last will and testament of Mrs. Jane K. Hill is not in fact her testament, but that she died intestate. That after making said will, which is in olographic form, the deceased underwent a change of feeling to the beneficiary, Ariana Lowry, and that she revoked and annulled the same in the form and in the manner pointed out by law, as follows: by a tacit revocation resulting from*acts which suppose a change of will. She threw the said purported will away among a lot of wa te and worthless papers, when she was provided with bank boxes and other receptacles to keep and secure all her valuable papers, and where she kept all her valuable papers, and even those of no value.

That shortly after this tacit revocation the said purported last will and testament of the said deceased was found among said waste papers, and brought and offered to the said deceased, who, thereupon, declared that she had revoked and annulled said will, and that she did not want the paper and that she desired the same destroyed. That said purported last will and testament lay around with the waste papers about the house of petitioner, Philip Jones, in Jackson, La., and was finally thrown with them into an unlocked drawer in an armoir not used by the said deceased and notin the same room which she occupied, and said will was not placed in the custody of any one. That the said deceased subsequently declared to her friends that she had made wills during her lifetime, but that she had revoked and annulled them all; that she had none then, and that she would make some disposition of her property before she died in favor of those she cared for, but not one of the said persons was the beneficiary in the probated will. That in pursuance of these declarations, a short time before her death, she obtained from her financial adviser the form of a will, declaring that she would immediately write out the said will, but her physical condition prevented her from doing so, and she died without accomplishing her purpose, as no such will has been discovered. That all of the above acts and declarations of the deceased showed that she had revoked and annulled the last will and testament probated, and the deceased, therefore, died intestate. The prayer of the petition is “that the said purported last will and testament of the said Mrs. Jane K. Hill, deceased, be declared avoided and annulled, and the probate thereof set aside, and petitioners be recognized as the heirs of the said deceased in the proportion of one-fifteenth each,” etc.

To this action the executor filed an exception of no cause of action, which was maintained and plaintiffs’ suit dismissed. They appealed from the judgment.

Summarizing the facts as stated in the petition for the ground for revocation of the testament, they are as follows:

1. The refusal to receive and take into her possession her own will when asked to do so, coupled with her act in leaving it for many years in charge of no one, in i house not her own and not her home, among old papers and letters thrown away and abandoned.

2. Her subsequent effort to make another will, obtaining a form therefor, coupled with a statement of a change of mind and intention to make this other will.

3. Her actions toward the legatee, treating her as one she disliked.

The putting of the will among waste paper, whether intentionally or not, does not even raise a presumption that it was the intention of the testator by this act to revoke the testament. Succession of Blakemore, 43 An. 845.

In the case cited the will was found ten years after the death of the testator among worthless papers in a valise in a locked room.

In State vs. Ames, 23 An. 72, the facts show that at the time of the death of the testator Field, a diligent search was made for a will and none found. An administrator was appointed, and during the administration, two years after the death of the testator, a will, duly executed by the testator, was found attached by paste to the under side of a tray of a common leather trunk which had been in the possession of the defendant Ames since the death of the testator. The wife of Ames was made by the will universal legatee. The will was probated, and the defendant, as the universal legatee of his late wife, was quieted in the property bequeathed to her as universal legatee of Field. The finding of the will in a strange and unlooked-for place, under novel circumstances and conditions, may throw some suspicion upon its execution by the testator, but when it has been proved to be his last will, the facts of its novel location are not to be invoked as evidence of an intention to destroy or revoke it. In this case it was said by the court that “ we should bear in mind that examples are not wanting of whims and vagaries displayed by testators as well in regard to the places chosen to deposit their wills as to their contents. * * * The important point in such a case is to determine, if possible, whether the instrument be genuine or not.”

In the instant case there is no dispute as to the genuineness of the will made by the testatrix and found under the circumstances related in the petition.

Eliminating the place where the will was found and the apparent abandonment of it by the testatrix, did the declaration of the testatrix subsequent to the making of the testament, as stated in the petition, amount to and have the effect of a tacit revocation of the testament?

Article 1691 of the Civil Code defines the revocation to be express tacit, general or particular.

Article 1692 of the Code says the act by which a testamentary disposition is revoked must be made in one of the forms prescribed for testaments and clothed with the same formalities. This article refers to the revocation as defined as express, general or particular. Art. 1693, C. C.

The tacit revocation “is when it results from some other disposition of the testator or from some act which supposes a change of will.'’ C. 0. 1691. The “other disposition” referred to means when the testator has made another testament, and the disposition therein is such as to tacitly destroy the effect of a prior disposition, ■and the language “from some other act which supposes a change of will” is to be interpreted and explained by the following article of the Code, 1696, which says: “A donation inter vivos, or a sale made ■by the testator of the whole or a part of the thing bequeathed as a legacy, amounts to a revocation of the testamentary disposition for all that has been sold or given, even though the salé or donation be null and the thing have returned into the possession of the testator, whether by the effect of that nullity or by another means.”

Under Art. 1691, as explained by subsequent articles, there are only two modes of revoking a valid testament — the one by a written instrument clothed with the formalities of a last will and testament, and the other by a donation inter vivos or a sale of the thing in part or in whole bequeathed.

The acts and declarations of the testator do not come within the tacit revocation expressed in the Code. The will as exhibited in the transcript is perfect in form, and unaccompanied by any fact that appears on its face indicating any purpose of the testatrix to change or alter it. It was in the possession of the testatrix and she could have erased her name, or that of the universal legatee, or could have •destroyed it. She neither erased a name, destroyed a signature, or mutilated the will. When again offered to her, after it was placed by her among waste papers, she did not alter it or destroy it. The fact that there was no erasure of her signature or that of the legatee, and the will was in existence at the time of her death, is, we think, evidence that she did not intend to alter her mind in relation to her disposition in the testament. The fact that she had declared that she would make another will and change her bequest can not have the effect of a revocation. The fact still remains that she did not do it. Until the change of mind or intention is expressed in the mode pointed out by law, the original intention is presumed to exist.

The plaintiff relies upon the decision in the case of Succession of Muh, 35 An. 394.

In that case we think, in the opinion, there was, in the language of the court, some confusion in treating the destruction of the will, with its revocation, and construing Art. 1691 of the Code as referring to acts which amount to a destruction of the testament. The facts in the Succession of Muh related to erasures made by the testator.

The description of the erasures and the effect thereof is thus expressed by the court in the opinion: “That his intention was to' annul the will, make it void and of no effect, can not reasonably be-doubted. The painstaking and. elaborate defacing and blotting out-the signature was the act which, to his apprehension, destroyed it as-a will. The obliteration of the names of 'the executors was almost as complete, but the legacies that were not intended to be repeated had simply an ink line drawn through them and the sentences that were untouched received marginal additions as memoranda,, or were left entire for use in copying.” The testator had made these obliterations with the intent to destroy the will, and what was left, untouched was to be used in the completion of another testament. There was a total destruction of the will by obliteration, defacement and erasure.

The Code nowhere speaks of the destruction of a testament as a means of revocation, for we presume, if the testament was destroyed, there was an end of all testamentary disposition so far as that testament was concerned, and the testator was in. a situation as though he had never disposed by last will, and there existed no necessity for an express or a tacit revocation. If the testator burns or tears up the will, there is no will in existence, no testament that can be probated. And the same may be said by obliteration, defacement, the erasure of names of legatees, and the erasure of the testator’s signature. In either case there is no will in existence, and no question of revocation can he presented. But no more complete revocation could be made than by the destruction of the testament. Art. 1691 of the Code does not mention it as a mode of revocation.

In the ease of Hollingshead vs. Sturgis, 21 An. 450, in which the facts stated for the revocation of the testament, olographic in form by a posterior will in nuncupative form, and also by a letter written by the testatrix to her mother, in which she said the universal legatee in the olographic will should not have one cent of her property, the facts are stronger than in the instant case. “ This letter,” the court said, “does not furnish evidence of that formal and solemn character necessary to establish the revocation of a will.”

And in this case we conclude that the acts of the testatrix and her declarations were not expressed in that solemn form required for the revocation of her testament, and the fact of the existence of the will, under the circumstances of the case, justify the conclusion that •she did not intend to recall, nor did she recall, the testament which she had made.

Judgment affirmed.


text:
    No. 11,724.
    State ex rel. Paul R. audibert vs. Victor Mauberret, Civil Sheriff.
    It is not imprisonment lor debt, when the court orders payment of an amount, acknowledged to be in possession of the defendant and under the control of the court, and on failure to do so commits the defendant for contempt of its authority.
    The Supreme Court lias no power to issue a writ of habeas corpus except in cases appealable to it. The writ of habeas corpus can not be employed so as to operate as an appeal for the review of the proceedings of the lower court. The writ of certiorari is only auxiliary to the writ of habeas corpus.

    APPLICATION for Writs of Habeas Corpus, Certiorari and Prohibition.

      Forman & Selireiber for Relator.

      Dinlcelspiel & Hart for the Sheriff, Respondent.

      Rightor, Respondent Judge, in propria persona.

   The opinion of the court was delivered by

McEnery, J.

The relator applied to this court for the writ of habeas corpus, and in connection therewith writs of certiorari and prohibition, alleging that he is in the custody of the civil sheriff on a commitment for contempt for refusing to obey an order from the judge of Division “ D ” of the Civil District Court, parish of Orleans.

In the suit of Paul R. Audibert vs. Geo. F. Mugnier, George Supot was appointed receiver of the partnership existing between plaintiff and defendant. The plaintiff in that case, on the application to be appointed receiver of the Electric Engraving and Publishing Company, testified that he was the manager and treasurer of said company, and had in his possession funds of said company to the amount of five hundred and thirty dollars. A rule was taken against the relator by the receiver to pay over to him, the said receiver, what money he had in possession belonging to said company. On the trial of the rule contradictorily with relator, it was shown that he still had the above amount in his possession. The rule was made absolute. Failing to obey the order of court, a rule for contempt was taken by the receiver against relator. On the trial of the rule for contempt, it was shown that the relator still had said money in his possession, and he also had it on the day of commitment for contempt of court.

The relator complains that he is committed for debt, the imprisonment for which is abolished in this State. The order of court to the defendant to pay over the money in his possession, which, after the appointment of a receiver, was constructively in possession of the court, was not an order to imprison for debt, but to compel an obedience to the order of court, in relation to a fund to which it was entitled as custodian, and which it was within the power of relator to turn over to the receiver, the officer of the court.

The order was lawful, having been rendered in a case in which the court had jurisdiction, and it had the power and authority to punish any disobedience or resistance to its lawful authority.

We have unnecessarily gone into this part' of relator’s complaint, as by alleging that there was in the order a violation of the organic law there was an effort to differentiate this ease from the well established jurisprudence of this State.

There was no fine imposed within our jurisdiction, and the term of imprisonment is not such as to confer jurisdiction upon the court. This court has no jurisdiction to issue writs of habeas corpus in cases not appealable. The amount in dispute in the rule is not within our jurisdiction, but if it were this would not confer jurisdiction to issue the writ in matters of contempt, as the amount involved has no connection with it.

It is evident that the writ of habeas corpus can not be resorted to in order to serve the purposes of an appeal, and the review of the proceedings of the lower court. The writ of certiorari, which accompanies it, is only auxiliary to it.

The writ of habeas corpus is denied.