author: Nicholls, C. J. Blanchard, J.

text:
    No. 13,967.
    State of Louisiana vs. The American Sugar Refining Company.
    Syllabus.
    1. An act to amend certain sections of a general law is limited in its scope to the subject-matter of the sections proposed to be amended. The amendment of a special section of an act implies merely a change of the provisions upon the same subject to which the section relates.
    2. The General Assembly is not authorized, under a title to a law purporting to amend a particular section of another law, to alter the subject-matter of a different section, to which no reference is made in the title, and to transfer and insert such altered matter as a “proviso” into the amended section (with which it has no logical connection), leaving the latter as it was originally, save as to the matter so thrown into it. Such insertion is an “addition" rather than an “amendment” to it.
    3. Though a particular section of a law may, by amendment, be broadened so as to bring within its provisions some particular matter which could logically and legally have been placed in it originally, this matter must be something which had not been already specially and differently provided for in another section of the same statute, and to which section no reference is made in the amendatory law.
    APPEAL from the Civil District Court, Parish of Orleans— Ellis, J.

      Hugh C. Gage, for Plaintiff, Appellee.

      Carroll & Carroll, (Foster, Milling, Qodchaux & Sanders, of Counsel), for Defendant, Appellant.
   The Opinion of the Court was delivered by

Nicholls, C. J.

On Application for Rehearing by

Blanchard, J.

Statement op the Case.

Nicholls, O. J. In 1898 the Legislature of the State of Louisiáña enacted a general license law, which is found in the acts of that year, under the number one hundred and seventy-one (171). The title of the act was: “An act to levy, collect and enforce payment of an annual license tax upon all persons, associations of persons, or business firms and corporations. pursuing any trade, profession, vocation, calling or business (except those who are expressly excepted from such license tax by Article 229 of the Constitution); and prescribing the mode and method in which certain persons subject to license shall make report of their business.

The first section of the act levied an annual license tax for the year 1899, and for each subsequent year, upon each person, association of persons, or business firms or corporations, pursuing any trade, profession, vocation, calling or business, subject to license under Article 229 of the Constitution.

The second section enacted “that on the 2nd day of January, 1899, and each subsequent year, each tax-collector throughout the State shall begin to collect and shall collect as fast as possible from each of the persons or business firms, association of persons, and corporations pursuing within his district or parish any trade, profession, calling or business, a license tax, as hereinafter graduated.”

The third section enacted that “the annual licenses for all the kinds of business hereinafter named, except as afterwards provided, shall be graduated in twenty-five classes.”

The General Assembly in subsequent sections then enumerated separately different callings and occupations by name, placing each one into classes and affixing to each of the classes a certain license, as, for instance, “manufactories, banking business,” etc., etc.

The third section of the act fixed the licenses for manufacturers in general terms, and for banks and banking associations, corporations or agencies, under a classification.

The tenth section fixed, under classification, the license for omnibus or regular coach or herdic business, collection agencies or agents for the collection of moneys, accounts, notes, etc., and for every business for transporting money, merchandise or other articles, by express or transfer, of operating one or more boats or tug-boats, or keeping a wárehouse or storage-room or landing where goods are received and delivered.

The twelfth section fixed, under classification, licenses for the business of keeping a theatre, opera house, amphitheatre, academy of music, cancan or other dancing establishments, museums, menageries, circus or traveling shows, balls and entertainments, railroad or steamship ticket sellers, peddlers, hawkers.

The fourteenth section fixed, under classification, the licenses for the carrying on the business of agencies for steamboats, draying, trucking, keeping cabs, carriages, hacks or horses for hire, undertakers or lessees of toll bridges and ferries, master builders, stevedores, bill posting or tacking, contractors and mechanics who employ assistants, lawyers, doctors, dentists, photographers, oculists, jewelers, and all other business not provided for in the act.

The license for “refining sugar and molasses, or either of them,” was placed in the eleventh section of the act, included among other occupations or businesses therein provided for. These occupations or businesses were divided into twenty different classes. The first class was based on the amount of gross annual receipts of two million five hundred thousand dollars and over, for which the license was fixed at six thousand two hundred and fifty dollars, and the twentieth class was based upon gross annual receipts being less than fifteen thousand dollars, for which the license was fixed at twenty dollars.

In 1900 the General Assembly passed the act known as Act No. 103 of that year. Its title was “An act to amend and re-enact Sections 10, 12 and 14 of Act No. 171 of 1898, entitled ‘An act to levy, collect and enforce payment of an annual license tax upon all persons, associations of persons or business firms and corporations, pursuing any trade, profession, vocation, calling or business, except those who are expressly excepted from such license tax by Article 229 of the Constitution, and prescribing the mode and method in which certain persons subject to license shall make report of their business.’ ”

The first section is as follows:

“Be it enacted,” etc., * * * “That Section 10 of Act No. 171 of 1898, entitled, ‘ An act to ’ (giving the full title of the act) ‘ be amended and re-enacted to read as follows: Section 10 — Be it enacted,” etc. * * * (Here follows the section as amended and reenacted.)
At the close of Section 10, as re-enacted, are the words: “Provided, further, that for carrying on the business of refining sugar and molasses, or either of them, the annual State license shall be one-eighth of one per cent, upon the gross annual receipts of such business.”

The second section of the act of 1900 declares that: “All laws or parts of laws in conflict with the provisions of this act are hereby repealed.” The title of the act, as has been stated, was not only to amend Section 10, but Section 12 and Section lit-; but there is nothing in the body of the act which declares that either of those sections were therein “repealed,” amended or re-enacted.

The business of “refining sugar and molasses, or either of them,” was referred to in Section 10 only in the "proviso” at the end of the section. It is not brought in as one of the businesses the licenses for which were being provided for, originally fixed and classified in the section. That section provides a specified classification for tile licenses for the other occupations enumerated therein. The proviso fixes the license for “carrying on the business of refining sugar and molasses at one-eighth of one per cent, upon the gross annual receipts of such business.”

The present suit is one brought by the State through one of its tax-collectors to recover against the defendants the sum of twenty-one thousand two hundred and fifty dollars as a license tax for the year 1901.

It is alleged that defendant is engaged in the business of refining sugar and molasses in the Second District of New Orleans; that its gross annual receipts from said business for the year 1900 exceeded $21,000,000; that defendant had taken out no State license for the year, and that the sum of $21,250 is due therefor; two per cent, per month interest from March 1, 1901, and ten per cent, interest on .principal and interest as attorney’s fees.

Defendant filed an exception of no cause of action, and an answer containing, first, a general denial. It admitted that it was carrying on the business of refining sugar and molasses, but denied that it refined any molasses, except such as is produced as an incident of the refining of sugar. It admitted that it had not taken out any license for the year 1901. It denied that its gross receipts from said business exceeded the sum of twenty-one millions of dollars for the year 1900. It denied that it was liable to any license tax for the year 1901, for the reasons that defendant’s business of refining sugar and molasses is a manufacturing business, and defendant, in conducting said business, is a manufacturer and exempt from license taxation by the terms of Article 229 of the Constitution of Lousiana of 1898; and any act of the Legislature attempting to impose a license tax upon defendant for conducting said business is unconstitutional and void.

(Without waiving the defenses afterwards made) it averred that the proviso to Section I of Act No. 103 of the General Assembly of Louisiana of 1900, under which defendant was sought to be held liable for a license tax to the State of Louisiana was contrary to Article 229 of the Constitution of Louisiana of 1898, in that the tax sought to be imposed by said proviso to said act was not graduated as required by Article 229 of the Constitution of 1898.

(Without waiving the defenses afterwards made) it averred that said proviso was further contrary to Article 225 of the Constitution of 1898 in that the tax sought to be imposed thereby was not equal and uniform as required by said Article 225, and that said proviso was further contrary to Articles 225 and 232 of the Constitution of 1898, and to the first section of the Fourteenth Amendment to the Constitution of the United States, in that the tax sought to be imposed thereby was in effect and in fact an income tax and was not authorized by any law of the State of Louisiana; and, if authorized by any law of the State, the same was not equal and uniform upon all persons within the jurisdiction of the State of Louisiana, and denied to defendant the equal protection of the laws of said State.

That said Act No. 103 of 1900, and particularly said proviso to Section I of said Act, was in violation of Article 81 of the Constitution of Louisiana of 1898, which provides that every law shall embrace but one object and shall be expressed in the title, forasmuch as the said Act No. 103 of 1900 by its title purports to amend only Sections 10, 12 and 14 of Act No. 171 of 1898, and does not authorize the legislation embraced in said proviso, which is an amendment of Section 11 of said Act No. 171 of 1898, not embraced in the title, and not germane nor pertinent to said Sections 10, 12 and 14 of said Act No. 171 of 1898.

That if said Act No. 103 of 1900 and said proviso to Section I thereof be authorized by the title to said act, then said Act No. 103, and particularly said proviso to Section I thereof, is contrary to Article 82 of the Constitution of Louisiana of 1898, which provides that no law shall be amended by reference to its title, but in such cases the act revived or section amended shall be re-enacted and published at length, inasmuch as said Section 11 of said Act No. 171 of 1898, which is amended by the said proviso of Section I of Act No. 103 of 1900, is not re-enacted and published at length.

That said Act No. 103 of 1900 and the proviso to Section I thereof are contrary to the Constitution of the United States and particularly to the third paragraph of the 8th Section of the 1st article thereof, in that it seeks to impose a direct tax upon articles of merchandise and the proceeds of sale thereof intended and used for commerce between the states, and defendant avers that out of the gross output and receipts ($20,451,933.39 of its said business of refining sugar and molasses, in the year 1900) $18,121,577.01 of said receipts arose from sales of said output in and to persons in other States of this Union, and which output and merchandise was actually shipped to other States.

Defendant specially pleaded the unconstitutionality of said Act No. 103 of 1900 and of the proviso to Section I thereof on each and every ground above set forth, and averred that same was null, void and of no effect.

I.

The district judge, in affirming the constitutionality of the act, in so far as it was attacked on account of its title, form and object, and in sustaining the position taken by the State, expressed his views in the judgment appealed very clearly and concisely in the following language:

“The title of the Act No. 103 is, ‘An act to amend and re-enact Sections 10, 12 and 14 of Act T71 of 1898, entitled “An act to levy, collect and enforce payment of an annual license tax upon all persons, associations of persons or business firms and corporations pursuing any trade, profession, vocation, calling or business,” etc., etc. No particular business, calling or profession is named in the title of this act. Its one object, which is clearly stated in the title, is to impose and collect a license tax from all persons who pursue any business, vocation, trade or calling which by the organic law is not exempt from such tax. No one reading this title could say that any particular profession or business is taxed. This could be determined only by examining the entire body of the act, but the title unerringly declares that upon every trade, profession, etc., not exempt by law, a license tax is-levied and will be collected, and this is the sole object of the act.

Eor convenience, the text of this law is broken into thirty-one sections, and many of the sections are broken into many paragraphs, but all of these relate to the license tax on business not exempt, and nothing else.

Its sections, which are brought under review by this case, are sections 10, 11, 12 and 14.

Section 10 fixes the license tax upon business of operating coach, omnibus or herdic lines, on collection agencies, on the express and transfer business, on the storing or warehouse business and on the business of operating tugs or towboats.

Section 11 fixes the license tax on about fifteen different callings or trades, among them -the business of gas light, electric light, waterworks, miniature railroads, shoot-the-chutes, saw mills, telegraphing, telephoning, cotton compress or ginning or pickery, slaughter house, brewing or distillery, tobacco, cigar and cigarette, cotton seed oil, cake and meal, refining sugar and molasses, etc., etc.

Section 12 fixes the license on the business of keeping theatre, opera house, amphitheatre and academy of music, while Section 14 provides for the license tax on business agencies, the business of steamboats, drays, hacks, cabs, carriages, undertakers, livery stables, toll bridges, ferries, master builders, stevedores, bill posting, contractors and mechanics, etc., etc.

- I have named some of the trades or callings taxed by the sections to show that there has been no effort to collect them into classes by reason of kinship or similarity of methods, but that they are indiscriminately named — ordinary trades, manufacturings of all sorts, amusements, telegraphing, steamboats, etc., etc.; from the man who operates the shoot-the-ehutes to the sugar refiner; from the undertaker to the steamboat company; from the distillery to the waterworks; from the livery stable to the telegraph and telephone; from the bill-poster to the master builder.

Manifestly, this collection or enumeration of so many callings so totally different in nature from each other, in any single one of said Sections 10, 11, 12 or 14, shows that the Legislature laid no stress upon and attached no importance to the naming of any one business in any one section; that it had no purpose to group the various callings into classes, where all would be similar in the general line of business operations, but that its one object, as expressed in the title, was to name every business and every calling from the highest to the lowest and to levy a license tax upop. it.

Inasmuch as this is the plain import of the act, taken as a whole or entire statute, it is manifest that little significance is to be attached to its subdivisions into sections, for each and every section relates to a liense tax on trade or business.

Bearing this in mind, we are prepared to test the validity of the Act 103 of 1900 on the issue of its constitutionality raised by the defendant company. The title of this statute is: ‘An act to amend and re-enact Sections 10, 12 and 14 of Act No. 171 of 1898, entitled, ‘An act to levy, collect and enforce payment of an annual tax upon all persons, etc., pursuing any trade, profession, vocation, calling or business,’ etc., etc., the title of Act 171 of 1898 being copied entire in the title of Act 103 of 1900.

As the title of Act 103 does not name Section 11 of Act 171 of 1898 and as sugar refineries are named in the Section 11 of the Act of 1898 and are not referred to in Sections 10, 12 or 14 of said Act of 1898, and as Act 103 of 1900 adds to its re-enactment and amendment of Section 10 these words: ‘Provided, further, that for carrying on the business of refining sugar and molasses the annual state license shall be one-eighth of one per cent, upon the gross annual receipts of said business,’ the defendant contends that this proviso, not being germane to any of the subjects of license taxation, referred to in either Section 10, 12 or 14, which are the only section of Act 171 of 1898 referred to in the title to Act 103 of 1900, therefore an object not referred to in the title of the amendatory act, is included in its body, and therefore it has no effect under said Article 31 of the Constitution.

The argument is ingenious, hut it is not sound. The power of the Legislature to re-enact or to amend or to repeal cannot be questioned. It had power to change the license tax law of 1898. It had power to re-arrange the sections of that law as it saw fit; there was nothing to prevent its adding to its amendment of Section 10 the proviso in regard to the license tax on sugar refineries. In doing this it was not obliged to refer in the title of the amendatory act to Section 11 of the act amended merely because it happened that in said Section 11 sugar refining was named along with a dozen other trades or callings on which a license tax was laid. The effect of the proviso added to the amendment of Section 10 was to take sugar refining from the classification fixed by Section 11 and to fix for it a new method of grading and and a license tax different in amount. But the sole effect of this act is a license tax on business callings and professions, and it is of no moment that in dealing with this general and only object the Legislature saw fit to transpose the provision relating to sugar refining as a business subject to license taxation from Section 11 to Section 10 of the Act of 1898 as amended. The general object and the sole object of the Act of 1898 and of the amendatory Act of 1900 was a license tax on professions and trades and business, and as the object is stated in the title of both acts, it seems to me that reference to particular sections is of secondary consideration. It purports to amend Sections 10, 12 and 14, and because in amending them it provides a different license tax for sugar refining as a business from that fixed by Section 11 of the amended act makes no difference, because the one object of the amendatory, as well as of the amended act, was the license taxation of business, and that object is specified in both titles. Sugar refining is a business, and, therefore, without special mention in the title, it may be subjected to the license tax under the one object stated therein.

The amendatory act supplements and changes the amended act, and we read the two as one whole. The proviso of the Act of 1900 in regard to sugar refining takes the place of the classification and tax provided by the Act of 1898, for this proviso is the last expression of the legislative will.

In amending the sections referred to in its title, it adopts the proviso, it being an amendment, but the proviso refers to no subject except a license tax on business. All of these sections, 10, 11, 12 and 14, relate to that one subject, i. e., the license tax on business and (he titles of both acts state this as the one object of both laws.

Indeed, all the thirty-one sections of the act relate to this one subject. They are only clauses or paragraphs of the entire act. They are subdivisions of the text put in for mere convenience, and the numerical designation of each and every section could be stricken out without having the slightest effect upon the law itself. The insertion, therefore, of numerical designation for the several paragraphs of the entire text of this law was mere surplusage, the presence of which or the absence of which has or can have no possible influence upon the declarations or directions of the law itself.

Therefore it seems to me when the title of the Act 103 of 1900 announces that its object was to amend and re-enact certain enumerated sections of the Act 1Y1 of 1898, that this was equivalent to the announcement that the general license law was to be amended, and was ample notice to the people and to all concerned, and these meet all the essential requirements of Article 31 of the Constitution.

The question here is not complicated' by any issue of repeal by implication, for the amendatory act contains a clause which expressly repeals all laws or parts of laws contrary to its provisions.

Counsel of defendant say: £We do not contend there is anything contained in the title of the Act of 1900 which is not contained in the original act. The title of the act meets all the constitutional requirements; it has but one object, and that object is embraced in its title, and so long as the General Assembly confined itself to the object and purpose set forth in the title, the act is legal and constitutional. But when the Legislature went beyond the object expressed in the title and attempted to do indirectly what it could not do directly under the title of the act; that is, deal with the subject-matter contained in Section 11, it acted beyond the scope of the object expressed in the title of the bill. There was no attempt to amend Section 11, but it is equally true that Section 11 was amended; there was no direct amendment but what was done directly, but was sought to be done indirectly. The object of the act as expressed in its title was to amend Sections 10, 12 and 13 of the Act of 1898. Sugar refining was grouped or classified under Section 11. The trades, callings, vocations or professions embraced in Sections 10, 12 and 14 were in no sense akin or germane to the subject of sugar refining. It is indisputable that while Section 11 is not mentioned in the title, nor in the object of the bill, yet that section was amended, so far as it dealt with refiners of sugar, and is repealed pro tanto by the Act of 1900. Can the act, then, which in its title purports to amend certain sections of a general law, and enumerating those sections, go beyond what is germane or cognate to the objects and purposes of those sections and incorporate objects embraced in other sections, which are not akin to the subject-matter of the sections set out in the title? We think not? If Section 11 could not have been amended specially and eo nomine under the title of this act, can the constitutional requirements be successfully evaded by doing indirectly what could not have been done directly? If so, there are no limitations or restrictions to be placed upon the General Assembly in including the object of legislation in the bill. The General Assembly grouped into different classifications and under different sections the various callings, trades, etc., and fixed an annual maximum and minimum license to be paid by each upon its gross receipts, and in that classification saw fit to place the sugar refining business under Section 11, and any effort on the part of the General Assembly to change or modify the tax provided for in that section should have been included in the title of the bill for that purpose, and, as sugar refiners found their classification under that section, any bill which sought to add to or take from their rights or liabilities under this section and canceled that fact by a title to amend different section or sections of the bill would be grossly misleading and deceptive, and should not be tolerated as legislation such as Article 31 of the Constitution contemplates.’ ”

Opinion.

The arguments urged and the authorities cited by both parties to this important litigation have received our most thoughtful consideration. Act No. 171 enacted by the General Assembly in 1898 was a genera] license law to levy, collect and enforce an annual license law upon all persons or corporations or business firms pursuing any calling or business, except those expressly excepted from such tax by Article 229 of the Constitution. Various occupations were placed in groups in different sections of the law, and for each group a common classification was established and a specific license was imposed upon each one of the parties engaged in the particular business according to the particular class of the group into which his own case might fall. When this act was passed the general public and each person pursuing any of the businesses mentioned therein were advised of the exact situation and placed in position to take steps to thereafter maintain, alter or repeal the act as the different interests might be affected.

The general public and each individual concerned was called upon to watch subsequent legislation concerning licenses.

If the title of a proposed law should give notice of an intention to amend or repeal generally the preceding act, every interest involved should be placed upon the alert and warned of a possible injurious change in the law. If, however, the title of the proposed law should give notice of an intention to simply amend a particular section of the bill, then all parties other than those interested in the subject-matter contained in that particular section would be thrown off their guard, and, being led to believe they had no interest in the new statute, would take no steps looking to their own protection. If, under the citle of a hill to amend simply Section 1 of a given law, which section affects only specified persons, or deals with a particular subject, distinct matters which are contained in and specially provided for in another section and which concerned different sets of persons could, after being dealt with differently from what they were in their proper section, be transported over and inserted into “Section 1” as so altered, the parties concerned in this change might be greatly deceived and ruined without their knowledge. The very object of Articles 31 and 32 of the Constitution is to prevent this result.

The General Assembly has the right to make the title of an amendatory act as sweeping and general as it thinks proper, and, having done so, to take general action under the title, provided it keeps within it and deals with but one object; but, when it restricts the title and announces its purpose to deal with the original bill in respect only to particular matters therein, it is bound to govern itself accordingly and keep within what it had itself declared would be the limits of its proposed action. (Sutherland Stat. Const., Secs. 87-102. Cooley’s Constitutional Limitations, pages 171, 172.)

The same rule and reasons which prevent the General Assembly, in enacting a general law on a particular subject, from inserting in the body of the law additional subjects not covered by the title, prevent that body, when it enacts a law directed by its title specially to the amendment of a particular section of a law (that is, to the alteration of the particular matters contained in that section), from throwing for the first time into that section distinct matters not included in it before the amendment, when the matters so thrown in are, after being altered, those which had been specially and otherwise provided for in another section of the same law. As the General Assembly, in a law purporting to deal generally by amendment with a pre-existing law, has to keep inside of the objects provided for in the original law, so it has in a law purporting to deal with a special section to keep within the things provided for in that section. It is not sufficient that these things should have been able to have been classed as matters falling legally and properly under the general title of the original law. It may be that a particular section of a law may by amendment be broadened so as to bring within its provisions some particular matter which could logically and legally have been placed 'in it originally, but this matter must be something which had not already been provided for in another section of the .same statute which was proposed to be amended.

In Dolese vs. Pierce, 124 Ills. 140, the court said: “An act to amend certain sections of a general law is limited in its scope to the subject-matter of the section proposed to be amended. In such case the introduction of any new substantive matter not germane or pertinent to that contained in the original sections cannot be regarded as an amendment thereto, but must be regarded as independent legislation upon a matter not expressed in the title of the act, and, therefore, void. The amendment of an act in general or a particular section of an act ex vi termini implies merely a change of its provisions upon the same subject to which the act or section relates.”

This same general principle, in different forms and language, is to be found in numerous decisions of the Supreme Courts of other states of the Union having constitutional provisions similar to our own on this subject.

See ex parte Couvert (Ala.), 9 Southern, 227; Ex parte Henlett, 22 Nevada, 333; Trumble vs. Trumble, 37 Nebraska, 340 (55 N. W., 869, 870); State vs. Bankers & Merchants Mutual Benefit Association, 23 Kansas, 502; Chiles vs. Monroe, 4 Metc. (Ky.), 72; Board of Commissioners vs. Aspen M. & S. Co., 3 Colo. App. Rep., 223, (32 Pac.), 717-718; People vs. Fleming, 7 Co., 230 (3 Pac. 70); Miller vs. Hurford, 11 Neb. 377 (9 N. W. 477); State vs. Carroll, 54 Neb. 72 (74 N. W. 432, 434); State vs. Tibbetts, 52 Neb. 228 (71 N. W. 990); State vs. South Ry. Co., 115 Ala. (22 Smith, 589-591); Armstrong vs. Mayer (Neb.) (83 N. W. 401); State vs. Ferguson (28 Smith, 918).

In the case at bar we find that sugar refining was placed by the Legislature of 1898 in the 11th Section of Act No. 171 in a group of occupations classified for license purposes into twenty sections, the first class being of those whose gross receipts were two million five hundred thousand dollars and over, and the license fixed at six thousand two hundred and fifty dollars, and the 20th section being of those whose gross receipts were fifteen thousand dollars, and the license fixed at twenty dollars, while the 10th section of the Act of 1898 enumerated three distinct groups of occupations and divides each group into classes, providing a specific license for each class.

The occupations named in the second of these groups were: “Persons doing a storage business of sugar and molasses exclusively, or either of them.” These occupations were divided into nine classes, the first class being of those whose gross receipts were twenty thousand dollars whose license was fixed at one thousand dollars, and the ninth class being of those whose receipts were less than three thousand dollars, whose license was fixed at seventy-five dollars. In the 10th sec-, tion as amended this second group remained unchanged as to classification and license, but at the close of the section are found the words, “Provided, further, that for carrying on the business of refining sugar and molasses or either of them the annual State license shall be one-eighth of one per cent, upon the gross annual receipts of such business.”

It will be seen that “the business of refining sugar and molasses” was transported out of Section 11 of the Act of 1898 in to Section 10 of that act, but that it was not placed into any of the groups therein contained nor under the classification of any of these groups, but it made its appearance in the section as an independent business specially provided for therein, without any express classification, but with the license fixed for any one pursuing the same “at one-eighth of one per cent, upon the gross receipts of such business.” The original group with which it was thus connected remained after the ¡proviso was placed in the section just as it was before.' Its insertion was really not- so much an amendment of the section as an “addition” to it.

It will be seen that this matter is inserted into Section 10 under the form of a “proviso.” As there is nothing in the section preceding the “proviso” with which it has any proper connection or relation, we think there must have been some error made in the title to the bill, or in placing this “proviso” in the place where we find it. In construing a law of Nevada, the Supreme Court of that State, comparing its title, which declared it to be “An act to amend Section 2 of another act with what was contained in the body of the two acts,” said: “It appears that Section ‘I’ was the section they really wished to amend, but as the title stated that it is an act to amend Section 2 >of the former act and the body of the act repeats that statement, we are of the opinion that it must be taken just as it reads, although it would seem that a mistake had been made.” (Ex parte Henlett, 22 Nevada, 234.)

We do not think the proviso in question logically belongs or was intended to belong or can legally be placed where it is, nor that we can carry it over and back into Section 11 under the title to this amendatory act. We are forced therefore to sustain defendant’s claim that said proviso is unconstitutional, null and void, and we so hold, adjudge and decree.

The demand of the State against defendant for a license based upon said proviso having no legal foundation upon which it can rest, it must be rejected and the State’s demand be dismissed.

The conclusions we have reached on that question make it unnecessary for us to pass upon the other issues raised by the pleadings.

Eor the reasons assigned it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered and adjudged that plaintiff’s demand be rejected and its suit dismissed.

On Application for Eehearing.

Blanchard, J.

The plaintiff proceeded under Section 1 of Act 103 of 1900 against defendant for a license tax for the year 1901.

Defendant pleaded the unconstitutionality of that part of Section 1 of the act aforesaid which purported to authorize the proceeding taken by the plaintiff. This court sustained the plea of unconstitutionality, reversed the judgment appealed from and rejected the plaintiff’s demand. In doing so, the court did not pass or intend to pass upon any of the other defenses raised in the case.

In its application for rehearing the plaintiff urges that if that part of the statute of 1900, under which it took action, be unconstitutional, there is another statute under which defendant is liable for a license tax for 1901, and prays the court to so hold and to decree against defendant a judgment for a license tax under the other law, and to this end to grant a rehearing.

If there be another statute under which defendant owes a license tax for the year 1901, let a new proceeding be taken by the State setting the same up, and its right so to do, as well as the right of defendant to resist the same by all legal pleas and defenses is reserved.

To this extent the decree heretofore handed down is modified and amended.

Behearing refused.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 13,950.
    J. B. Atkins, et al. vs. Shreveport and Red River Valley Railway Company.
    Syllabus.
    Í. A clause In a contract evidencing the grant of aid to a railway company, which is to construct a line of road on the east side of Red River, that the company shall operate tow boats with convenient barges at points on the river so as to furnish transportation to freight and produce, and to operate the boats as low down stream as the lower boundary line of the parish granting the aid, is held to mean that the railway company should run a boat or boats, towing barges when necessary in seasons of law water, up and down the river front of the parish, making frequent connection with the railroad at the points in the parish where the railroad touched the river, to the end of giving the people of the .parish living on the river, especially those on the west bank, direct, easy and continuous connection with the railroad.
    2. It was altogether competent and legal for the railroad company to stipulate to do this. There is nothing of ultra vires character about it.
    3. Besides, if the stipulation was not intra vires, it does not lie in the mouth of the railway company, which received the aid, to set the same up as defense.
    4. Such a stipulation is a consideration of the grant; it is more — it is a material consideration; and the railway company fails to earn the tav whenever it fails to meet the condition.
    5. The obligation of the railway company in this regard is not fulfilled by a contract with a boat already in the river making fortnightly trips from New Orleans to Shreveport, to receive and transport such freight and produce as may be offered for shipment.
    6. Since the railway company could earn the tax only by running boats agreeably to the intent of the contract, a putting m mora was not required.
    APPEAL from the First Judicial District, Parish of Caddo— Land, J.

      Suiherlin £ Hall and Egan £ Soheen, for Plaintiffs, Appellants.

      Leonard, Randolph £ Rendall and Alexander £ Willcinson, for Defendants, Appellees,
   The opinion of the court was delivered by

Blanchard, J.

Certain taxpayers of the Parish of Eed Eiver, for themselves, and the Police Jury of the parish, for the body of the taxpayers, bring this action to have declared forfeited a special tax of five mills voted by the property taxpayers of the parish in aid of the defendant company.

The ground for this demand of forfeiture is the non-fulfillment of the conditions attached to the grant.

In the year 1897 petitions addressed to the Police Jury were circulated throughout the parish praying that body to submit to the prop-erty taxpayers a proposition to vote the tax. It is averred by plaintiffs that these petitions were gotten up and circulated by the defendant company. This, however, is not of much moment.

The law required at least' one-third of the property taxpayers of the parish should sign the petition before the Police Jury could act.

The requisite number having signed, the Jury adopted an ordinance submitting the proposition to the property taxpayers at an election called for the purpose, and at this election, held on the 23rd of September 1897, a majority in number and in amount or value of property voted in favor of the tax.

Following this the Jury and the railway company entered into a formal contract, the first obligating itself to extend upon the assessment rolls of the parish the tax of five mills for ten years in favor of the second, and the latter obligating itself to build and operate the line of road in aid of which the tax was voted.

In this contract the petition of taxpayers aforesaid is referred to as containing the reciprocal obligations of the contracting parties, and a copy of the petition is annexed to and made part of the contract.

Following the execution of the instrument evidencing this contract, the Police Jury adopted an ordinance levying the tax and ordering its collection.

As the petition of taxpayers to the Police Jury, praying the submission of the proposition to vote the tax, was the initial step required by law in the movement to grant the aid, and as this petition contains the terms and conditions upon which the grant was to be made we copy the same as follows:

“The undersigned petitioners constituting more than Yz of the property tax-payers of the Parish of Red River, State of Louisiana, with respect represent that the construction of the Shreveport & Red River Valley Railroad by the Shreveport & Red River Valley Ry. Co., a corporation duly organized under the laws of Louisiana, from the City of Shreveport * * * on a line intersecting the northern boundary of said Parish of Red River and running thence in a southerly direction to within the incorporated limits of the town of Ooushatta * * ®, said town being the terminus of said road — said road to be constructed of the best material of modern equipment — will he of great benefit to the people and property of said Parish of Red River—
“We, therefore, * * * respectfully pray that your Honorable body will levy a special tax of five mills annually for a period of ten years in aid of said Shreveport & Red River Valley Ry. Oo., commencing January 1st, 1898, and said tax to be levied for the years 1898-1899-1900-1901-1902-1903-1904-1905-1906 and 1907.
“Provided, that this tax is voted and to be levied under the following conditions, to-wit:—
“That said Shreveport & Red River Valley Ry. Co. shall commence work on the construction of said railroad from the said City of Shreveport within thirty days after the promulgation of a favorable vote taken hereon, and shall fully complete and put in operation said railroad from' said City of Shreveport to within the corporation limits of the said town of Ooushatta within twelve months from the promulgation of said favorable vote taken hereon, and shall continuously operate through trains on said road, unless prevented by war, overflow, labor strikes, or other unforeseen fortuitous events, and no part of said tax to be paid said company until the completion and operation of trains thereon.
“Provided, further, that said Shreveport & Red River Valley Ry. Co-shall operate tow-boats or steam tugs with convenient'barges at such points on the stream of Red River as to furnish transportation of such freight and agricultural products as may he assembled at such points, and to onerate such boats or steam tugs with convenient barges as low down said stream of Red River as the present site of Lake End, La.
“Tour petitioners further pray your Honorable body to order an election according to law to take the sense of the property tax-payers on said proposition for or against said proposed aid — the ballots to he used at said election to be written or printed in the following form, viz:—
“For a special tax of 5 mills in aid of the Shreveport & Eed Eiver Yalley Ey. Co. for the time and on the conditions set forth in the petition of the property tax-payers.
“Against the special tax of 5 mills in aid of the Shreveport & Eed Eiver Yalley Ey. Co. for the time and on the conditions set forth in the petition of the property tax-payers—
“With the name of the voter and the value of his assessed property written on each ballot.
“And for which we will ever pray, &c.”

The special election at which the tax was voted was held and conducted in all respects as thus petitioned for.

The railway company completed the road to Coushatta and put the same in operation within the time named in the petition. The line was inspected by the Police Jury and that body, by formal ordinance passed on November 23, 1898, accepted the road and instructed the tax collector to pay over to the company “the special tax levied in aid of the construction thereof, as provided by law, as long as said company continue to comply with their contract.”

It appears that this tax for the years 1898 and 1899 has been paid to the company.

The present suit was filed September 10, 1900, and decided in the lower court March 9, 1901. The decision was adverse to the plaintiffs and they prosecute this appeal.

The contention of the appellants is that the conditions upon which the tax was voted that have not been fulfilled are;—

1. The town of Coushatta was stipulated to be the terminus of the line — whereas, in point of fact, the road, after reaching Coushatta, passed on southward into and through other parishes than the Parish of Eed Eiver and has made some point other than Coushatta its terminus.
2. The company undertook to operate, in connection with the railway, boats or tugs with barges on the river for the convenience of shippers and receivers of freight — -which stipulation has not been met and fulfilled, at least not so since the latter part of February 1899, at which time a boat, the TJni, owned and operated by the railway company, was destroyed by fire.

It is insisted that these being essential and continuing conditions of the grant the failure to meet them operates the forfeiture of the tax.

As to the demand of the Police Jury, the defendant filed an exception of no cause of action. The contention in this regard is that the Jury has no right to bring the suit or stand in judgment therein; that it has no public function to perform in connection with the suit and no interest in the controversy; that when it levied the tax it performed the specific duty imposed upon it by law; and that thereafter its connection with, and legal duty towards, the tax ceased.

Defendant also pleaded, as against that part of the plaintiffs’ demand founded upon failure to operate tow boats in the river, that the petition does not allege there had been a putting in mora. In this connection, it is urged that demand upon defendant — a putting in default — was a prerequisite to the institution of the suit.

Reserving its exceptions, it answered denying that it was one of the conditions of the contract that Oousbatta was to he the terminus of the railway. It averred that the material and sufficient consideration for the grant was the construction of the road from Shreveport to Ooushatta within the time agreed upon and the continuous operation of its trains thereon since that time, both of which are affirmed.

It charged that the stipulation as to the operation of tow boats was not intra vires, nor a material consideration, but that should it be held material then it has been- fully complied with.

We do not find it necessary to pass upon the exception challenging the right of the Police Jury to appear as party plaintiff in the suit.

Undoubtedly, taxpayers in interest have a standing in court to bring the action and certain of them have done so. Thompson on Corp., Yol. 1, § 1130. All the points raised may he adjudicated as well with them as sole plaintiffs, as could be the case were the Jury 'a co-plaintiff.

The contract between the people of Red River Parish and the railway company had for its object, on part of the people, the construction and operation of the railway into the parish and to the county seat, and, op part of the company, the obtaining of financial aid by means of the tax in furtherance of the construction of the road.

But this was not all. The people had the right to attach other conditions to this grant of the tax and did so, and the railway company agreed to these conditions, and in order to earn the tax it must meet the same year by year, during the term, at least, for which the tax was voted. ,

In the ordinance passed by the Police Jury accepting the road and instructing the tax collector to pay over the avails of the tax to the company, it is specially stipulated that this “paying over” was to take place “as long as said company continues to comply with their contract.”

This meant, and could only mean, that the tax was to be paid over each year as collected, provided the company met those conditions of the contract which were continuing in character. That is to say, the company had agreed to do something which was to be done after the road was constructed and accepted, and this “something” had to be done or else the tax was not to be paid over.

We do not think the contract stipulates as a condition of the grant that the town of Coushatta should be and remain the final terminus of the road. True, the town is referred to in the taxpayers petition as being the terminus of the road, but this is held to have been descriptive merely.

The taxpayers might have made it a condition of the grant and had they done so and the company had disregarded it, it would be ground for forfeiture of the grant. Elliott on Railroads, Vol. 2, Secs. 856, 862; Beach on Contracts, Vol. 1, Secs. 90, 129, 131; Thompson on Corp., Vol. 1, § 1130.

The reference to Coushatta as the terminus of the road is found only in the first clause of the petition of taxpayers, where it is recited that the construction of the road into the parish and to the town of Coushatta would be, in the opinion of the signers, “of great benefit to the people and property” of the parish.

But in that part of the petition, following the prayer for the levy of the special tax in aid of the railway, where the conditions of the grant are set forth, no mention is made that Coushatta should be and remain the terminus.

The language there used is: “Provided that this tax is voted and to be levied under the following conditions, to-wit

Then follow the declaration (1) that work on the construction of the road should commence within thirty days from the Shreveport end of the line and the road should be completed and put in operation from Shreveport to Coushatta within twelve months, and the company should continuously thereafter operate through trains on the road; and (2) that the railway company should operate tow boats or steam tugs with barges on the river as far down .stream as Lake End, which is a village on the river near the lower boundary line of the Parish of Eed Eiver.

These are, we hold, the two conditions, and the only two, attached to the grant.

The first has been complied with. About this no question is raised.

But the tax is not to be considered earned by compliance with one only of the two conditions named. C. C. 2021, 2026, 2028.

Every condition must be performed in the manner it is probable that the parties intended it should be. O. C. 2037; Pothier on Obligations, Yol. 1, 206.

Where several conditions are connected by a copulative conjunction all of them must be accomplished, and if any one is not so, the obligation fails.

Pothier on Obligations, Vol. 1, 223; Bouvier’s Law Dictionary, verbo “Condition.”

The accomplishment of conditions' is indivisible, even when the thing which is the object of the condition is something divisible. Pothier on Obligations, Yol. 1, 215.

The effect of a condition, is to suspend the obligation until the condition is accomplished; till then nothing is due. Ibid., 218.

On the failure of any condition to do or not to do, the other party may sue to dissolve the contract.

C. C. 1926, 2046.

“A railroad company, or one claiming through it, there being no estoppel, must perform the conditions prescribed, or else there can be no effective claim to the aid.” Elliott on Railroads, Yol. 2, Sec. 856.

So, too, where the vote is for a subscription upon condition, the railroad company has a right to the voted aid only upon a strict performance of the conditions.

Ibid., Sec. 861 (note 4, citing 73 Ind. 543; 24 Kan. 170; 99 HI. 205); Thompson on Corporations; Yol. 1, Sec. 1130.

The obligation of the subscriber does not become binding until all conditions have been performed. Thompson on Corporations, Yol. 2, Secs. 1332, 1334,.1335, 1344, 1352.

Has the second condition imposed by the taxpayers in voting this tax been cornplied with ?

To answer this requires the court to construe that part of the petition of taxpayers referring to it, to the end of' ascertaining its true meaning and intent.

The condition is that defendant company “shall operate tow boats or steam tugs with convenient barges at such points on the stream of Eed river as to furnish transportation of such freight and agricultural products as may be assembled at such points, and to operate such boats or steam tugs with convenient barges as low down said stream of Eed river as the present site of Lake End, La.”

What was the object of the grantors of the tax in insisting upon this as one of the conditions of the grant? What purpose was the stipulation designed to effectuate? What did the contracting parties mean; what was in their minds at the time this condition was stipulated for by the grantors and agreed to by the grantee ?

To answer these queries we must look at the situation as it then existed; we must consider the environment of the parties at the time, especially that of the people of Eed Eiver Parish. And it must be borne in. mind that if anything doubtful or obscure appear in the terms of the contract, the construction should he against the railroad rather than against the public, for the railroad was the moving party; it sought the public aid; it prepared the contract. 24 Kan. 181.

The parish, physically, is divided by the Eed river. The railroad was to be located on the east side of the river. It would run parallel to and near the river, but not on the immediate bank. It would, however, touch the river — that is to say, its bank — at several points in the parish. At these points immediate connection would be made with the river and with boats in the river.

Prior to the advent of the railroad the only means of shipment of their produce the people of the parish had was the river. Their only access to the markets of the world for the purchase of supplies and for the sale of their cotton was by means of boats in the river.

Eor years the navigation of the river had been practically monopolized by a single line of- boats owned by a company and known as “the Eed Eiver Line,” commonly called on the river “the Pool Line.'”

The people wanted competition developed to this line, to the end of securing better freight rates. Therefore, they doubly welcomed the coming of the railroad.

But a large part of the people of the parish lived on the west side of the river and a very large part of the valuable property in the parish was located on that side.

The proposed tax in aid of the railroad was to he a parish tax — to be a charge on all the property in the parish.

The people and property on the east side of the river would be greatly benefitted by the railroad. It would he at their doors.

Not so with the people and property on the west side. The river intervened between them and the railroad. The direct benefit resulting to them by the construction of the road would not be at all comparable with that received by the people on the east side.

Yet the tax was to be voted by all the people. If the taxpayers on the west side were hostile, it were likely the vote on the proposition to grant the aid would be adverse. The railway company recognized this; everybody did.

Something must be done to equalize the benefits to the sections of the parish — the one east of the river, the other west.

The only way to do this was to bring the west side in direct touch and connection with the railway. This could be done by the railway company putting a boat or boats in the river to ply along the river front of the parish, making connection with the railway at the points where it touched the river, thus affording the people of the west side an easy access to the rail, and the people all along the river, on both sides of the parish front, the benefit of active competition with through boats navigating the river.

Under these circumstances the people of the parish and the railway company entered into the contract.

The railroad wanted the votes of the taxpayers on the west side; these taxpayers wanted the river navigated by a boat or boats running in connection with the railroad in such way as to enable them to easily reach the railroad.

Read in the light of the situation then existing, the meaning and intent of the second condition of the grant is clear.

It meant that the railroad company should run a boat or boats, towing barges when necessary in seasons of low water, up and down the river front of the Parish of Red River, making frequent connection with the railroad at the points or places in the parish where the railway touched the river, to the end of giving the people of the parish living on the river, especially those on the west bank, direct, easy and continuous connection with the railroad.

It was clearly intended to give every one in the Parish of Red River the use and benefit of the road for which aid was voted. To thus operate ? boat to tow barges so as to carry freight from points, on the river to the railroad is an adjunct to the railroad, would tend to facilitate transportation by rail, and was not beyond the scope of defendant company’s charter.

It was altogether competent arid legal for the railway company to stipulate to do this. There was nothing of ultra vires character about it.

It is not reprehensible for a railroad'company to own and operate boats in connection with and as feeders to its line of railway.

Thompson on Corporations, Vol. 5, Sec. 5874; Elliott on Railroads, Vol. 2, Sec. 374, note.

Besides, if this stipulation of the contact was not intra vires, it does not lie in the mouth of defendant company to set this up as defense.

A railway company accepting a county subscription as made by the county accepts it as tendered by the county, with all of its terms and conditions, and is estopped from contending that such terms and conditions are void and unreasonable.

When a contract is not malum in se a party cannot plead ultra vires without doing justice and restoring what has been received. Thompson on Corporations, Yol. 5, Sec. 6003 et seq.

The railway company cannot claim the tax and repudiate one of the stipulations upon which the grant was made to it. If it repudiate the transaction at all it must repudiate it altogether. If it sets up the defense of ultra vires it must restore what it has received of the grant made.

Green’s Brice’s Ultra Vires, 2nd Am. Ed., p. 717; Reese’s Ultra Vires, Sec. 74; Elliott on Railroads, Vol. 2, Sec. 372; 139 U. S. 59.

Like an infant or married woman, the corporation cannot repudiate and enforce the contract at the same time. C. C. 1792, 1793.

The stipulation as to the running of boats in connection with the railway is held to be a material consideration of the contract and the railway company cannot earn the tax year by year as it matures without a substantial compliance with it.

Since it could only earn the tax by running the boats, a putting in mora was not required. When the company failed to run the boats according to the intent of its contract there was what is considered the equivalent of an active violation of the contract, and this rendered demand and putting in default unnecessary. C. C. 1931, 1932, 1933; 29 La. Ann. 329; 50 La. Ann. 1297.

Besides, the rule with respect to putting in mora does not apply to contracts depending upon a condition precedent where no claim for damages for inexecution is made. Railroad Co. vs. Dillard, 51 La. Ann. 1487.

The evidence shows defendant company has at no time fully met its obligation in respect to the matter of running boats in the river, and since from about the 1st of March 1899 (when the boat it had in the river burned) down to the trial of this case in the District Court there has been little better than a pretense of compliance.

About the time the Police Jury accepted the road as constructed as a compliance- with that portion of the contract requiring consruction, a boat called the Uni was chartered by the company to run in the river in connection with the railroad. Subsequently the company purchased the boat and ran it until the last of February 1899 when it was destroyed by fire.

The Uni, it seems, did not run up and down the river front of the parish, giving the frequent connection with the rail which, under our interpretation of the contract, should have been done; but continued its trips long distances down the river, sometimes as far as its mouth.

These extended trips prevented, of course, that easy and frequent access to railway points on the river within the limits of the parish by means of boat transportation, which, under the contract, was the due of the people of the parish living on the west side of the river.

Nevertheless, such as the service was it seems to have been accepted by the people and the tax for 1898 and 1899 was paid.

Under the view herein expressed they might well have objected to the service as inadequate under the contract and declined payment of the tax. But they did not do so; the tax for those years was paid, has been received by the company and that ends the matter so far as the years 1898 and 1899 are concerned.

For the period following 1899 this suit stands .as a barrier to the payment of the tax to^ the company.

After the burning of the Uni there was no effort whatever made of compliance with the tow boat requirement until the middle of August-following, when what purports to be a contract with the Red River Line was entered into whereby the Steamer Scovell of that line was engaged to run “in th.e waters of the Mississippi and Red river, between the City of New Orleans and the City of Shreveport, or so long as the waters of Red river will permit the navigation to said City'of Shreveport, and in low water to operate said steamer as high up the stream of Red river as navigation will permit and particularly to transport, with convenient barges, etc., such freight and agricultural products as may be assembled at points on the stream of Red river, in the Parish of Red River, navigation permitting, to such other points on Red river as the owners and shippers thereof may desire, charging the shippers therefor an equitable and reasonable freightage to be fixed by the party of the first part (the Red River Line) at a rate which in their judgment is proper and just.”

Then follows a stipulation that the boat is to be operated in the name of the railroad company and all bills of lading are to be issued in its name, but the railroad company is to be held harmless against all loss of freight, and harmless against all claims for damages for injuries to passengers or crew, and harmless against all other claims of any nature whatsoever that may arise in the operation and management of the Boat, and the steamboat company is to have all the revenues and profits accruing in the operation of the steamer.

The only consideration named is the sum of one dollar which is to be paid the steamboat company by the railroad. A bond in the sum of $15,000 is to be given by the steamboat company to the railroad, conditioned'upon the performance of the contract.

The evidence shows that the steamer Scovell was at the time, and had long been, one of the four or five Red River Line boats operating in Red river and plying between New Orleans and Shreveport, and that after this contract was entered into no difference was perceptible in the running, operation and management of the boat over what had been the case prior to the signing of the contract, and over what was the case with the other boats of the line, with this exception, that the bills of lading of the Scovell were issued in the name of the railroad and she was advertised as running under the auspices of the railroad.

The boat continued a common carrier on the river just as she had been for years; Prior to the contract she would take freight from New Orleans, ascending, or from Shreveport, descending, to way points on the river, and from one way point to another, just as she continued to do after the contract was signed, and her owners continued to enjoy all the profits and. stand all the losses of her running the river just as they had always done, charging such freight rates as they pl'eased, or were permitted to charge by the Railway Commission of the State.

It was the merest pretense of a contract, and it is patent that the only motive influencing to its execution was a make-shift compliance with one of the conditions of the tax grant made to the railroad by the people of Red River Parish, and this with the sole view oí claiming that the tax had been earned.

, This steamboat contract gave the people of the parish absolutely nothing new — nothing they did not have and enjoy before it was entered into.

It cannot for a moment be supposed that the taxpayers of the parish, when they stipulated that the railway company should run towboats with barges as low down the river as Lake End, and the Police Jury on their behalf, in all its proceedings, emphasized the conditions of the grant and even caused them to be referred to, and voted on the ballots themselves, ever contemplated that such an agreement as above depicted with the Red River Line would be tendered as a substantial compliance.

By the term “towboats or steam tugs, with convenient barges” was meant not towboats or steam tugs as used in the deep water of maritime ports, but such boats as could navigate the Red River along the front of that parish practically at all seasons, towing barges when necessary in low water to lighten the draught.

We have already construed the requirement to mean that these boats were to run up and down the river front of the parish, making frequent connection with the railroad at the points where the road came out to the river.

Now, the evidence shows that it took from ten days to two weeks, and sometimes three or four weeks, when the water was very low, for the Scovell to make her trips from New Orleans to Shreveport and return; so that, in point of fact, she passed along che front of Red River parish going up not oftener than once in two weeks, and going down the same.

That this was altogether an insufficient compliance with the contract made with the people of the parish is self-evident. It was the reverse of frequent, easy and continuous connection with the railroad, and it afforded no competition on the river.

We have heretofore stated that the running of the Uni from the upper part of the parish to the mouth of the river was not a compliance. Much more lacking in that respect is this substitute agreement to run the Scovell from Shreveport to New Orleans.

Counsel for defendant company claim that the Scovell was operated in the river about the same as the Uni had been, and that the petition of the plaintiffs concedes the running of the Uni was a substantial compliance with the, contract.

This being so, they contend that plaintiffs cannot now set up the contract with the Scovell and her operations in the river under the same, as lacking sufficient compliance.

We do not view plaintiffs’ petition in this light. There is no allusion therein to the running of the boats to the mouth of the river, but merely a statement that on the 23rd of November, 1898, the defend- and caused the road to be inspected by the Police Jury and “ placed a boat in Red River as required by said conditions and stipulations in the petition of taxpayers.”

There is nothing here about the operation of the boat — only a mention of its being placed in the river. Presumably, the boat had not then fairly begun its operations, since it was only that day, November 23, 1898, that the Jury accepted the road.

Elsewhere in the petition is the allegation that defendant had violated its contract by * * * “failing and refusing for more than a year and a half to operate towboats,” etc. While this language implies that at one time, or for a while, to-wit: when the Uni was in the river, the railroad company had sufficiently complied with the towboat-requirement, it does not follow that because the taxpayers chose to put up for three or four months with the running of the Uni as far down as the mouth of the river, they have no cause of complaint against the running of the Scovell as the railroad boat when she was owned by a transportation line competing with the railroad, and made fortnightly trips from New Orleans to Shreveport and return.

The Uni was owned by the railroad and was a competitor of the Red River Line boats. Even though she did now and then go to the mouth of the river, her trips along the river front of the parish were far more frequent than those of the Scovell, and the evidence is that while she was running the people on the west hank of the river could and did receive and ship freight and cotton by the railroad through the aid of this boat, hut that since she was burned, in February, 1899, efforts to connect the railroad with the river have practically been abandoned, and planters on the west bank, who had shipped cotton from their landings by the Uni and the railroad in connection with each other, now have to haul it to Coushatta, or some other point, ferry it over the river and haul it to the railroad in order to ship by the latter.

The contention that this tax should not be declared forfeited because the parties cannot be placed in statu quo, because no restitutio in integrum can be made, is without weight.

We know of no case wherein this argument has been adopted by any court where a subscription was based upon conditions.

If the argument were sound, it would be idle and useless to ever attach any condition to a subscription, other than the road should be constructed.

Where a railway is constructed, it cannot well be torn up in order to restore the situation as it was before the tax was voted or the road constructed.

The taxpayers have received nothing that they can return. They did not become owners of the road by voting the tax. They, therefore, have no road to return to the company. The roadbed, its material, workmanship and equipment belong to the company, and the latter has parted with nothing to be restored. See Memphis K. & C. Ry. Co. vs. Thompson, 24 Kan. 183.

If the company expended its money in constructing the road, they own it, and thus have the equivalent for the money invested.

We hold plaintiffs have made out a ease for the forfeiture of the tax for the period covered by their suit — say the year 1900.

The year 1901 is drawing to a close, and the tax for that year is now due; but we are not apprised that the same conditions existed in 1901 warranting the forfeiture of the tax for that year, as it did in the preceding year. If they did, the tax is equally forfeited for that year, and will be equally forfeited for each year of failure of compliance on part of defendant company with its contract with the taxpayers of the Bed Biver Parish as herein interpreted.

But we can, in this suit, deal only with the tax for the period of one year — 1900. From and inclusive of that year the tax has yet eight years to run. Non-constat that the defendant may not comply with its contract obligation for- the remaining years of the tax term.

If it should, and earn the tax, it must be paid; if it should not, the tax is not earned and should not be paid.

We reserve to all parties all rights in the premises.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and it is now adjudged and decreed that the tax voted by the taxpayers of the Parish of Bed Biver, in the year 1897, in aid of the Shreveport & Bed River Valley Railway Company, be and is hereby declared forfeited, canceled and annulled in so far as that portion of the said tax due for the year 1900 is concerned, and that defendant pay costs of both courts.

Rehearing refused.


author: Breaux, J.

text:
    No. 14,092.
    Kansas City Southern Railway Company vs. Railroad Commission of Louisiana.
    Syllabus.
    1. A prior suit in the same jurisdiction between the same parties, for the same cause of action, may be pleaded as Ms pendens.

    2. Plaintiff’s cause is pleadable in one suit, and it has no right to a second su't when its cause can be amply protected in the first. Multiplicity of suits is odious to the law.
    3. Parties cannot, by not pleading part of their defense, proceed in a second suit with the object of preventing further proceedings in the first suit.
    4. The fine imposed is in the nature of an interlocutory order, against which the preventive process by injunction will not lie, as there is ample remedy with out it.
    5. A writ of injunction will not be issued against officers representing the State, invested with discretion in the performance of duties imposed, particularly in view of the fact that the State has provided other adequate process against abuse of power.
    6. Injunction is not the proper remedy prior to judgment, provision having been made to render injunction unnecessary prior to final decree.
    APPEAL from the Twenty-second Judicial District, Parish of East Baton Rouge. — Brunot, J.

      Laihrop, Morrow, Fox & Moore, C. W. Lucas, and Alexander & Wilkinson, for Plaintiff, Appellant.

      Walter Quion, Attorney General, for Defendant, Appellee.
   The opinion of the court was delivered by

Breaux, J.

This was an action by the plaintiff against the Railroad Commission of Louisiana to have a fine annulled.

The defendant issued a general order forbidding all railroads in the State from removing any spurs or switches without its leave. Plaintiff removed a spur track named “Guy’s spur” in the Parish of De Soto. Eor this removal of its spurway the Railroad Commission imposed a fine of one thousand dollars.

Plaintiff directed its attack primarily against the order issued by the Commission, which reads as follows, viz.: “No switches or spurs now in use in this State shall be removed or abandoned without the consent of the Commission,” as being unconstitutional, unreasonable and arbitrary.

In the second place, against the fine because imposed without a hearing.

The questions raised by the defendant in the exceptions filed in its behalf are that this is a suit against the State and that it is well understood it cannot be sustained unless by consent of the State; that plaintiff’s injunction sought to stay the action of the Commission by prohibiting it from bringing suit against plaintiff for the recovery of a fine, and defendant further pleads lis pendens.

We take up the issues in their inverse order for decision. This brings us to the plea of Us pendens. Suit was brought by the Railroad Commission against the plaintiff in the Parish of De Soto for the "ecovery of the fine imposed as before mentioned. The allegations of the petition in the suit now before us for decision and the answer filed in the Parish of De Soto in the suit just'mentioned brought by the Railroad Commission against the plaintiff are substantially the same. There may be some difference in the relief sought, but the cases are not in our view very materially different. The plaintiff in the suit now before us is the same as the defendant in the cause pending in the Parish of De Soto. We think that the cause of action is not sufficiently different, under the circumstances, to justify us in overruling the jilea of Us pendens. If the remedy is not as complete in the first suit filed, it is because the plaintiff in this suit does not wish to make it complete. The question at this point, as one of practice, is sui generis. Because of the terms of the law it is obvious to us that plaintiff here is bound to exhaust the possibilities of its defense before resorting to another suit.

The first suit should afford a full, complete and plain remedy. The State is seeking in the first judgment to recover a fine imposed by he” Railroad Commission. While the suit is pending the plaintiff here can have no right to stand in judgment in an injunction suit. True, the fine has been imposed. It has, however, no effect before the railroad company, against which it has been imposed, has been called into court to answer and show cause why it should not be paid .

Under the terms of the Constitution, the Eailroad Commission is vested with the power, among others, to prevent discrimination in matter of rates and charges; also it may require railroads to build and maintain suitable depots, “switches and appurtenances” wherever they are deemed necessary to stations. They may enforce these powers by having the penalties prescribed inflicted through the agency of the courts.

In the discharge of their functions, this Commission has the power to adopt modes of procedure and hear and determine complaints brought against their acts.

The foregoing sufficiently indicates the power of the Commission in matters at issue here. Throughout it will be borne in mind that this Commission is vested with considerable discretion.

This brings us to a consideration of the method to be followed by interested parties who have complaints against the action of the Eailroad Commission. The company or party “may file a petition setting forth the objection to the decision made by the Eailroad Commission, and either party may appeal from the court’s action to the Supreme Court. Article 285 of the Constitution. “No fine or penalty shall bo recovered without suit.” Article 286.

We note that the State has granted a remedy by suit against its officers in a case in which the proceeding is substantially against the State. It has prescribed the mode to be followed in suing. It has also made provision for a complete defense when suit is brought by the Commission for the recovery of a fine. In our view, suits as well as_ defenses of those whose interests are affected by the Commission’s order, are to be brought in the manner and within the terms of the Constitution. The suit shall be “by petition, setting forth the cause or causes of objection to the decision.” We are not to infer from these words that the courts should authorize suit against the officers of the State prohibiting them by injunction from acting.

The one against whom action has been taken by the Commission has the right to be heard, and must be heard when complaint is urged in the manner required. The right is amply guarded. It is clearly stated in the Constitution that the State cannot recover the fine imposed by the Commission without a suit. The party proceeded again** has every reasonable opportunity for his defense. We haVe not found, however, that in addition to the right granted to the complaining party to be heard by petition, or in answer to a suit brought, the State has granted the further right to an injunction which might have the effect of preventing her officers from acting at all.

Plaintiff shows-no possible injury to itself as likely to result, and which renders an injunction a proper remedy. Plaintiff on another ground is not entitled to an injunction, for the reason that the act sought to be enjoined is in its character executive or quasi-executive. The Commission, as representative of the State, is entrusted with the performance of certain functions. They, to this end, must exercise discretion and judgment.

An injunction will not be granted in behalf of a party to restrain the officer from exercising the discretion with which he is invested, particularly when full provision is made to review his action and to prevent its execution until the rights of all concerned have been finally settled. This is the view expressed by Mr. High in his work on injunction, 3d Edition, p. 1035. The correctness of his text is supported by a number of cited decisions.

It cannot very well be inferred that it was the intention to authorize suit by injunction when the character of the acts to be performed and the discretion of the officers clearly show that no such acts were in contemplation as would render an injunction necessary. Injunction is a special remedy which one cannot exercise when all of his rights are protected at law. This leaves the plaintiff with a complete right to defend itself, a right which the Constitution contemplates it should have. It may sue and restrain the action of the Commission, but not through the process of injunction.

For these reasons the judgment dismissing plaintiff’s demand is affirmed.


text:
    No. 13,979.
    Bastrop State Bank vs. Samson Levy.
    Syllabus.
    1. Pending action by the trial judge on an exception of no cause of action it is - within his discretion to permit the filing of an amended petition covering the defectiveness of allegation in the original petition.
    2. The book entries of deposits, made by a bank cashier who is dead (his handwriting and death being proven), accompanied by evidence corroborative of the contention of plaintiff that these entries exhibit all the deposits made hy _ defendant, who kept no pass-book, make a prima facie showing of the state and extent of defendant’s deposit account, and suffice ‘to shift the burden of proof on defendant to show other deposits.
    3. Judicial tribunals are established to administer justice between litigants, and the first and most important step to that end is the ascertainment of the truth of the controversies which come before them.
    4. It is only when the truth is ascertained that the law can be applied in the just settlement of disputes.
    5. Litigants owe the duty of assisting in every legitimate way in the elucidation of the truth.
    6. When a defendant in a civil case can, by his own testimony, throw light upon matters at issue, necessary to his defense and peculiarly within his own knowledge, and fails to go upon the witness’ stand, the presumption is raised, and will be given effect to, that the facts, as he would have them, do not exist.
    APPEAL from the Sixth Judicial District, Parish of Morehouse— Hall J.

      Madison & Madison, for Plaintiff, Appellant.

      B, Tyler Lamkin (Kernan & Oowland, of Counsel), for Defendant, Appellee.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiff’s cause of action is an indebtedness due on account of moneys had and received of it by defendant in the way of overdrafts on his banking account.

The amount sued for is $4,948.82.

The allegation is made that this sum is due for moneys advanced and paid to and for -defendant upon his written checks, drafts and receipts drawn on the. plaintiff bank from time to time, as appears by a detailed and itemized statement of account annexed to the petition, and the checks, drafts and receipts which the defendant had drawn and the plaintiff had paid, also annexed to the petition.

The statement of account referred to begins with February 3, 1899, and the item of that date is on the credit side, showing a balance at that time to the credit of the defendant, as a depositor and customer of the bank, of $326.83.

It then shows that on. February 6, 1898, defendant deposited $250.00; on February 18th, $500.00; and the same amount on the dates, respectively, of March 3rd, April 15th, May 15th, June 15th and July 17th, 1899, making in all a showing of $3,676.83 deposited by the defendant in the period covered by the account, viz.: about one year.

On the debit side the statement begins with an entry of a cheek of defendant paid on February 6th, 1899, and extending from that date to February 19th, 1900, is a showing of 182 checks and written receipts for moneys drawn by defendant in sums ranging from four dollars (the lowest) to three hundred and eighty-three and 50-100 dollars (the highest) — aggregating the sum of $8,505.65 thus checked out by defendant in the period covered by the account.

At the foot of the account, after striking a balance between total amount deposited and total amount drawn, are the words and figures: “Overdraft, $4,948.82.”

We are thus particular in stating what the account annexed to the petition shows, because of an exception of no cause of action filed by defendant, levelled at the want of allegation in the petition, in so many words, that defendant had no funds in bank against which to draw, and that the moneys he owed for were overdrafts of his account.

We hold, taking the petition and account together, that it sufficiently charges the indebtedness declared on to have been for overdrafts of his bank account, and that defendant had not on deposit the funds necessary to meet the checks and orders for money which he drew on the bank.

And we hold, further, that even after the exception of no cause of action was filed, and before it was acted on, it was within the discretion of the trial judge to permit, as he did do, the filing of an amended petition covering the defect (as claimed by defendant) alluded to.

The answer of defendant is, in the main, a denial of the allegations of the original and amended petitions.

There was judgment in favor of the plaintiff for the sum of $350.00, representing one item on the account sued on, and against plaintiff for all the remainder of the indebtedness claimed, rejecting the same as in case of non-suit.

This appeal by plaintiff followed.

Ruling — The question which the appeal presents is, on the proof administered, is the plaintiff entitled to recover?

The trial judge thought the ease had been made out only to the extent of the one item set forth in his judgment.

Our examination of the evidence has led to a different conclusion. We think the plaintiff has sufficiently sustained the burden of the case —its proof — and is entitled to the judgment it seeks.

It is shown beyond all question that defendant drew the checks and receipts annexed to the petition and that they were paid by the plaintiff bank.

This narrows the issue to the question as to whether defendant had funds in the bank representing the balance ($4,928.82) appearing in the debit column of the account sued on.

It is shown that the account is an exact transcript of the original entries in the books of the bank. It appears that all of the entries on the credit side of the account in the books are in the handwriting of the cashier, and that, with few exceptions, all the entries on the debit side are in his handwriting.

The cashier, himself, could not be produced as a witness, for he was dead.

For each entry on the debit side the bank produced a voucher in the shape of a cheek, or draft, or receipt, signed by defendant. So that there can be no question of the correctness of the debit side of the account.

Defendant, it seems, kept no pass-book of the bank in which he required entries to be made of deposits to his credit.

The only showing as to deposits, therefore, that plaintiff could make were the entries in its books in the handwriting of the dead cashier. We think this was competent evidence, as far as it went, supported, as it was, by proof of the handwriting of the cashier and his death. Lathrop vs. Lawson, 5 La. Ann. 238; Herring vs. Levy, 4 N. S. 383; Morse on Banks and Banking, p. 481; See also Sec. 295 and foot notes; A. & E. Ency. of Law (2nd Ed.), Vol. 9, pp. 905 and 906 (foot notes); p. 928; p. 896 (foot note No. 6); American Surety Co. vs. Pauly, 72 F. 470, 18 C. C. An. 644; Culver vs. Marks, 23 N. E. 1086; 122 Ind. 554; 16 N. Y. Supreme Court, 239; James vs. Wheaton, 3 McLean, 492; Hodge vs. Higgs, 2 Branch C. Ct. 552; Greenleaf on Ev., 16th Ed., Chap. XI, p. 204, Vol. I; Union Bank vs. Knapp, 15 Am. Dec., p. 181; 3 Pick., 96; Welch vs. Barrett, 15 Mass. 380.

It is considered as having made a prima facie showing of the state and extent of defendant’s deposit account with the bank for the period covered by the account sued on. It sufficed, with the other evidence adduced by plaintiff, to shift the burden of proof of defendant to show other deposits made during that period, if he claim such, as he is considered to do.

No official of the bank, other than the deceased cashier, had that connection with the reception and entry of deposits made that would enable them to testify positively, from personal knowledge, as to the deposit account of defendant with the bank; but the testimony of Bussey, the then president of the bank, of Dalton, who was employed in its collection department and who sometimes acted as receiving teller and paying teller, of Madison, the attorney of the bank, of Noff, and other evidence adduced, contain much that is corroborative of what the books show in the way of the limited amount deposited by the defendant compared to the sums he drew on orders issued on the bank, and in the way of the limited financial ability and means of the defendant as sources from which to derive funds for deposit.

Shortly after the death of the cashier, who was a defaulter and had suicided, an effort was made to straighten the affairs of the bank, left in confusion by the cashier.

The defendant, appearing on the books as one of its largest debtors, was called into the bank building and asked concerning his account and the showing of indebtedness against him made by the books.

While he expressed surprise at the discrepancy between the debit and credit side of his account, and stated there must be something wrong, and while not admitting absolutely that he owed the bank anything, he d’d admit he was aware he had been overdrawing.

He was asked to explain his account and show wherein it was erroneous if he could, and it was offered him to allow any further credit he could show.

With regard to this, the witness, Madison, says: “He would never attempt to explain how the amount represented by his receipts .and checks sued on was offset, although I repeatedly asked him to do so, and offered to allow him any credit he could show.”

In another part of his testimony Mr. Madison says the defendant did not deny to him that he owed the bank anything. On the contrary, he says, he (defendant) “always stated that he was in doubt about the matter.”

We hold, therefore, that the proof administered by the plaintiff, showing positively the amount of funds drawn from the bank by the defendant on his own checks and orders, and showing deposits by him as exhibited by the bank records of $3,516.83, and the source whence came the money so deposited, and showing, further, the probable want of financial ability on part of defendant to respond further in the way of deposits in bank to meet his checks, and showing an admission by him that he had been overdrawing his account, and showing a sincere effort on part of the bank to get from him an honest explanation and exposition of his dealings with the bank, accompanied by the offer to allow him such further credits as he might be able to substantiate, rebutted whatever presumption there was that the bank, in paying defendant’s checks, to the extent of the large amount here shown, had funds of the drawer upon deposit to meet the same, and shifted the burden upon defendant to show that he did have the necessary funds on deposit to do this.

. His effort to establish this fails entirely. Had it been true, the best evidence to show it was his own testimony. Yet, while he was present in court during the trial and assisted his counsel in the defense, he did not take the stand at- all, and permitted the case to be closed without one word from him in rebuttal of the showing of indebtedness made against him on behalf of the plaintiff.

Judicial tribunals are established to administer justice between litigants, and the first and most important step to that end is the ascertainment of the truth of the controversies which come before them. It is only when the truth is ascertained that the law can be properly applied in the just settlement of disputes.

Litigants owe the duty of assisting in every legitimate way in the elucidation of the truth.

When a defendant can by his own testimony throw light upon matters at issue, necessary to his defense and peculiarly within his own. knowledge, if the facts exist, and fails to go upon the witness stand, the presumption is raised, and will be given effect to, that the facts do not exist.

School Board vs. Trimble, 33 La. Ann. 1073; Nunez vs. Bayhi, 52 La. Ann. 1719; Pruyn vs. Young, 51 La. Ann. 320.

Where one of the parties to a suit has more means of knowledge concerning-a matter to be proved than the other, the onus is on him.

Bowman vs. McElroy, 15 La. An. 663; Greenleaf’s Evidence, Vol. 1, Sec. 79; Ice Co. vs. Erhman, 36 La. Ann. 841.

So, too, it has been recognized that where the means of proving the negative are not within the reach of the party alleging it, but it is within the power of the opposite party, if the negative be not true, to prove it so, the law will presume the proof of the negative averment from the fact that such opposite party withholds or does not produce the proof that the negative is not true. A. & E. Ency. of Law, 1st Ed., Vol. 2, p. 652, See. 4.

This would seem to be one of those cases where this principle, or this doctrine, might safely be applied were there need to invoke it.

We have omitted mention in this opinion of many matters arising in the ease, and argued at bar and in the briefs of counsel, not deeming a discussion of the same necessary to the decision of the case.

It is ordered and decreed that the judgment appealed from be avoided and reversed, and it is now ordered, adjudged and depreed that plaintiff, The Bastrop State Bank, do have and recover of the defendant, Samson Levy, the sum of four Thousand nine hundred and fifty-eight and 82-100 dollars, with legal interest from October 29, 1900, until paid, together with the costs of both courts.

Rehearing refused.


author: Monroe, J.

text:
    No. 13,789.
    A. B. Philips vs. St. Charles Street Railroad Company.
    Syllabus.
    Where the motorneer of a street car, in answer to a signal, is slowing down his car, in order to stop it uith the rear platform over the proper crossing, and a passenger has taken his position on the lower step of the platform, preparatory to getting off. the fact that the passenger loses his balance and falls to the ground, it being claimed that such fall resulted from the sudden jerking of the car, and from the passenger catching his shoe in a defective step, will not justify the conclusion that such fall should be attributed to the negligence of the carrier, when it appears that the irregularity of motion complained of was not greater than is usual in the stopping of street cars and that the step was of an approved pattern and without discoverable defects.
    APPEAL from the Civil District Court, Parish of Orleans.— King, J.

      Charles Louque, Albert Voorhies, Lloyd Posey and Boatner, Dodds & Boatner, for Plaintiff, Appellant.

      Harry H. Hall, for Defendant, Appellee.
   The opinion of the court was delivered by

Monroe, J.

This is an action in damages for personal injuries said to have been sustained by plaintiff in getting off one of the defendant’s cars. The defense is a general denial. The plaintiff alleges that when the car, upon which he had taken passage, reached the corner of Orleans street, it “slowed up and stopped to allow” him to get off, and that whilst he was stepping off the car jerked, in starting again, and the heel and sole of his shoe, were caught in the piece of metal covering the edge of the step, with the result that he was thrown to the stone pavement and badly injured.

In giving his testimony he says: “I had given the warning to the conductor to stop the car. When the car was about to stop, I put my foot on the step, and the car gave a sudden jerk and. flung me off.” And at another place: “It was just about to stop, as I put my foot on the step. * * * The car gave a sudden jerk, and my heel caught in that piece of iron, and I was thrown off by the sudden jerking of the car.”

Before bringing suit, the plaintiff’s attorney addressed a communication to the defendant in which the accident was attributed to “a defect in the step of the car;” nothing being said about “a sudden jerk.” And the only witness examined for plaintiff who was present at the time testified that whilst he was immediately behind the plaintiff, on the platform, prepared also to alight, he would probably not have recognized or remembered the “jerk” or “increased momentum” spoken of, if the plaintiff had not fallen, because that is a common thing on cars.” As to the alleged defect in the step, the plaintiff seems to have been under the impression that there was a sheet, ^r piece of iron, zinc or other metal on the step, in which he caught the heel or sole of his shoe, but his testimony is by no means definite, and the single witness, above mentioned, states that his conclusion that the plaintiff had caught his foot was largely a matter of inference “from the method of his fall, and from” his (the witness’) “recognition of the fact that something had caught the plaintiff’s foot. In other words, he does not undertake to say that he actually saw anything more than the step itself. Upon the other hand, the step, having been taken from the car, was brought into court as an exhibit, identified and shown to be of an approved pattern, largely used throughout the country, and apparently safe. From the whole case, as presented, we conclude that the plaintiff left his seat whilst the car was in motion and took a position upon the lower step of the platform preparatory to alighting when the ear should reach the' crossing. It may be that the motomeer had slightly miscalculated, and that it became necessary just then to accelerate the motion of the ear in order that the rear platform might be exactly over the crossing when the car should stop, and that the plaintiff, resting, possibly, on one foot, was taken by surprise by the forward movement and lost his balance. But slight irregularities of movement are common incidents in the starting and stopping of street cars, and those who prepare to alight, and who do alight whilst the cars are in motion assume the risk resulting from such irregularities.

We are of opinion that the defendant did all that was required of it to deliver its passenger safely, and that the plaintiff is not entitled to recover.

Judgment affirmed.

Eehearing refused.