author: Watkins, J.

text:
    No. 12,353.
    W. H. Fitzpatrick vs. Hunter C. Leake.
    An adjudication, by a tax collector at public auction in pursuance of Act S2 of 1881, in the enforcement of taxes for years prior to 1879, against the assessment of which the absence of no jurisdictional prerequisite has been urged, passes to the adjudicatee an irredeemable and unencumbered title.
    A PPEAL from the Oivil District Court for the Parish of Orleans. Théard, J.

      Dart & Kernan for Plaintiff, Appellee.

      Farrar, Leake & Lemle for Defendant, Appellant.
    Submitted on briefs February 19, 1897.
    Opinion handed down March 1, 1897.
   The opinion of the court was delivered by

Watkins, J.

This suit is the supplement of one of same title, No. 11,817, which was decided by this court, 47 An. 1643, and the plaintiff’s demands rejected as of non-suit, mainly upon the ground that the objection to the tendered title was that it had been derived through J. Q,. A. Fellows against whom a certain judicial mortgage had been once recorded, and the tax title, by which it had been discharged presumably, had not been produced and filed in evidence.

By consent of parties, and for their mutual convenience, the decree was so altered as to open the ease and remand it to the lower court for additional proof.

When the case went back to the court below, the additional evidence was supplied, and a judgment rendered in favor of the plaintiff condemning the defendant to accept title to the property, and from that judgment the latter prosecutes this appeal.

The authentic act of sale on which plaintiff relies as discharging the judicial mortgage against the property in question whilst the title thereto was in J. Q. A. Fellows, bears date December 20, 1889, and shows the following facts, viz.:

That the State tax collector acting on the authority, and in pursuance of the provisions of Act 82 of 1884, advertised for sale, and sold at public auction the property in controversy, being square No. 637 in the Sixth District of the city of New Orleans, bounded by Clara, Arcadia, Marengo and Milan streets, on the seventh of November, 1889, to enforce the payment of the unpaid taxes of the years 1871, 1872, 1873, 1874, 1875, 1876, 1878, and which had been assessed in the name of J. CJ,. A. Fellows as the then owner thereof, when Clara A. Friend, wife of Thomas W. Montgomery, became the purchaser, for the sum and price of two dollars; and thereupon'said property was adjudicated to her, and said price was received in full and final payment and satisfaction of the State, city, parish and municipal taxes due thereon, prior to the 31st of December, 1879, and same was declared to be an absolute and irredeemable title to said property.

The act of sale evidencing said adjudication was duly signed by the tax collector, and the adjudicatee, duly authorized by her husband, as well as by the notary and two witnesses; and it was duly registered in the conveyance office on the date of its execution, and in the mortgage office on the 11th of January, 1890.

The act appears to be perfectly regular in form, and to perfectly conform to the law under the sanction and authority of which it was made.

One objection which is urged by the defendant to the title is, that J. Q,. A. Fellows, the tax and judicial mortgage debtor, was required to intervene in the act of sale from Mrs. Montgomery, the tax adjudicatee, to the plaintiff, and ratify the sale.

The answer to that is, that if all that is claimed for Act 82 of 1884 be correct in law, the judicial mortgage against the property was discharged by the adjudication to Mrs. Montgomery, and the property passed to her free of any encumbrance; consequently, the intervention of Fellows in Mrs. Montgomery’s act of sale to the plaintiff was without any legal effect or necessity.

That the adjudication to Mrs. Montgomery did pass an absolutely irredeemable and complete title to the property, free of all mortgages and other encumbrances — provided there be exhibited no absolute nullities in the assessment proceedings, jurisdictional in character — is attested by frequent and repeated adjudications of this court, some of which are the following, to-wit: In re Lake, 40 An. 142; In re Douglas, 41 An. 765; Henderson vs. Ellerman, 47 An. 306; Dibble vs. Leppert, 47 An. 798.

The second proposition is, that if Fellows had any latent interest in the property at the time it was conveyed by Mrs. Montgomery to the plaintiff, same was still affected by said judicial mortgage.

But, in deciding the foregoing proposition, we held that Mrs. Montgomery’s title was clear, absolute and irredeemable, without the aid of the intervention of Fellows; and the necessary consequence is, that the latter had no latent interest in the property to be affected by the 'judicial mortgage.

On both propositions we regard the case as being clearly with the plaintiff.

Judgment affirmed.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 12,394.
    Police Jury of De Soto Parish vs. Town of Mansfield et als.
    Local Option.
    The towns and cities may call an election within their respective limits to decide as to local option, one year alter an election has been held under police jury ordinance as to the same matter.
    Scope op Paeish Action.
    The parish action controls the lesser political division within the parish, as if the election had been held by authority of the town or city, but it can have no more effect than if the election had been held under the authority of the city or town.

      APPEAL from the Nipth Judicial District Court for the Parish of De Soto. Hall, J.

      J. B. Lee, District Attorney, for Plaintiffs, Appellees

      Elam & Egan for Defendants, Appellants.
    Argued and submitted February 16, 1897.
    Opinion handed down March 1, 1897.
   The opinion of the court was delivered by

Breaux, J.

This is an action by the plaintiff to enjoin the defendant from granting license to any one to keep a saloon and from doing any act tending to nullify the averred will of the people, as expressed at an election held in the parish which resulted in a majority against the issuance of license to follow the occupation of selling intoxicating liquors.

It is admitted that an election was legally held, under orders of the police jury, on the 11th day of September, 1895, which was regularly promulgated. It is also admitted that in the month of August, 1896, an application was made to the police jury to authorize an election to be held in the municipality of Mansfield for the granting or withdrawing license to sell liquors in the municipality, which was refused by that body.

Subsequently, it appears, that the town council of Mansfield, the parish seat of the parish, ordered the holding of an election to determine whether to grant or withhold license to sell intoxicating liquors. The election was held and carried in favor of the license. Thereupon the board of aldermen of the town adopted an ordinance to grant license for the sale of intoxicating liquors.

The injunction whereby plaintiff sought to enjoin the defendant from collecting licenses was perpetuated by the judge a quo. From the judgment the town of Mansfield has appealed.

The question for our determination is: An election held under the order of the police jury, having decided that intoxicating liquors should not be sold in the parish, can a town in the parish, after twelve months have elapsed since the election, decide by an election that liquors should be sold within its incorporated limits?

The law we are called upon to analyze, in order to answer the question, is Sec. 1211 of the Revised Statutes as amended by Act 76 of 1884.

The statute provides that the police juries of the several parishes and the municipal authorities of the several towns and cities shall have the exclusive power to make such laws and regulations for the sale or prohibition of the sale of intoxicating liquors as they may deem advisable, and to grant and withhold licenses from saloons and shops within their respective limits, in accordance with the will of a majority of the legal voters. The election, however, to ascertain that will was limited to, not more than once a year.

The amending statute of 1884 contains the proviso that wherever a majority of the votes east in the ward, if only a ward election has been held, or the majority of votes east in a parish, if an election has been held for a whole parish, shall be against granting licenses for the sale of intoxicating liquors, the vote or decision shall govern the action of any town or city within the limits of the ward or parish as completely as if the election had been held by authority of the town or city.

The town or city is a separate local body from the parish. It may assent to or dissent from a local option law. The question of the sale of intoxicating liquors is left to the parishes, wards, cities and towns. To the former is given, in some respects, the greater right. Whenever an election which has been held for a whole parish is against granting licenses for the sale of intoxicating liquors, the vote or decision controls the wards, cities and towns as fully as if the election had been held by authority of the town or city.

To the latter, the wards, cities and towns, are granted the same power within the limits of each, save that these powers are subordinate to those of the parish during the term of twelve months after an election against the sale of intoxicating drinks has been carried.

As we appreciate the issues, after the lapse of the twelve months, the subordinate condition comes to a stop and an election may be called in a ward, town or city by the proper authority of the ward, town or city.

The parish action must control the lesser political division as if the election had been held by authority of the town or city, but not to a greater extent than expressed.

If held under authority of a town or city, another election is possible after a year. It follows that an election by parish authority is subject to a similar condition within the limits of towns or cities. But it is asserted that under the statute the whole parish was bound until reversed by parish action; in fine, that license could be voted in only in the same way it was voted out, i. e. by the vote of the whole parish. In our judgment, the statute does not denote by the language used that such was the intent and meaning of the legislator. It does not appear that it was intended to entirely ignore the wards, towns and cities of the parish, if the parish action was against local option and the police jury of the parish did not choose, at any time, thereafter, to call another election.

If such was the legislative will, why were the words as if the election had been held by authority of the town or city ” inserted in the proviso?

The question was asked at bar in behalf of plaintiff. Oan the lesser control and reverse the action of the greater? There is, as we appreciate, a petitio principii involved in the question. It is assumed that the political subdivisions of the parish are entrusted, for all times, with less authority, while, in reality, they have as much power to make such rules and regulations for the sale, or for the prohibition of the sale of intoxicating liquors, as the parishes, with the one exception we have already stated.

Without the proviso, the lesser political subdivision would have had the authority to order an election without waiting for the twelve months to elapse after the parish action.

The election can not bind the town to a greater extent than she could have been bound by an election under her authority, save that a locus penitentim is provided in case of parish action, during which she is bound not to call an election in order, in our view, to procure, if possible, after that time, by the operation of a local option, a continuance of prohibition, and secure, as manifestly the legislator thought, with preponderance of local influence, the better condition always felt in communities in which intoxicants are not too freely used.

In our judgment, the statute does not have the effect of leaving the question entirely to the determination of the voters of the parish.

In certain cases, the wards, towns and cities have the right to decide the question in their respective limits.

It is ordered, adjudged and decreed that the judgment appealed from is annulled, avoided and reversed; the demand of plaintiff is rejected and the injunction sued out is dissolved and set aside.

The plaintiff and appellee to pay costs of both courts.


text:
    No. 12,321.
    Edmond F. Mielly vs. George Soule et als.
    In case one’s methods of teaching has been unduly criticised by a rival pretending to superiority, color is given to the excuse of making a reply; and such erimnations and recriminations, if kept within reasonable bounds, are not libellous. At least, the participants are inpari delictu.

    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

    An anonymous publication, made in the form of a printed pamphlet, which purports to be a reply to another communication, the authorship of which is not furnished, can not be said to ba libellous per sc, as allegation and proof are required to connect such pamphlet with the complainant.

      B. R. Forman, Jr., for Plaintiff, Appellant.

      Frank L. Richardson and Frank Soulé for Geo. Soulé, Defendant, Appellee.

      D. B, H. Chaffe for L. Graham & Son and L. Graham and L. S. Graham, Defendants, Appellees.
    Argued and submitted February 4, 1897.
    Opinion handed down February 15, 1897.
    Rehearing refused March 15,' 1897.
   The opinion of the court was delivered by

Watkins, J.

This is an action for libel alleged to have been committed by Prof. George Soulé, L. Graham & Son, Limited, and Lewis Graham and Lewis S. Graham, for which the plaintiff claims ten thousand dollars against the defendants in solido.

The defendants tendered a plea of no cause of action, and the same having been sustained and plaintiff’s suit dismissed, the latter have prosecuted this appeal.

We make from the brief of plaintiff’s counsel the following extract as fairly characterizing his position, upon which the test of defendants’ plea must be made, viz.:

“ I. That petitioner has been of good character and reputation and is engaged in the business of conducting a business college in this city.
“II. That defendant, Soulé, who is also engaged in the same business, through L. Graham & Son, Limited, and Lewis Graham and Lewis S. Graham, printed, published and circulated a pamphlet annexed to petition, Transcript, page 4, entitled ‘ Facts and Truth vs, Fiction and Deception,’ during the year 1895.
“ III. That defendants did this wickedly contriving to defame and injure your petitioner and for the purpose of injuring your petitioner in his business.
“IV. That said pamphlet is false, malicious and libellous; that said, pamphlet is libellous particularly as follows:
“ 1. The quotation heading said pamphlet, 1 Oh, what a tangled web we weave when first we practise to deceive,’ is libellous.
“ 2. That the comparison of petitioner’s circular with the circular of one who is termed a ‘ charlatan’ teacher of book-keeping, in the seventeenth and twenty-first lines of said pamphlet, is libellous.
“3. That the application of the adjective ‘smattering’ to the course of book-keeping taught by your petitioner, on page 4, twelfth line of said pamphlet, is libellous.
“4. That the allegation that your petitioner’s course is ‘copied, and worked ’ from the little treatise on book-keeping by P. A. Wright, ‘the noted eighteen-hour charlatan teacher,’ on page 4 of said pamphlet, is libellous.
“5. That the adjectives ‘delusive and decoying,’ on the twenty-fifth line, on the fourth page of said pamphlet are libellous.
“6. That the quotation from Dante’s Inferno, beginning with the twelfth line of the sixth page of said pamphlet, as to the punishment of impostors in the tenth gulf of Hades, is libellous.
“ 7. That the whole of said pamphlet was printed and published by said Soulé and Graham & Son, and Lewis Graham and Lewis S. Graham for the purpose of injuring the reputation arid business of your petitioner, wilfully defaming your petitioner.
“V. That said pamphlet has been widely circulated by said Soulé, in this city and throughout the country, being freely distributed by his agents in the streets of the city and from house to house.
“VI. That your petitioner has thereby been damaged in the sum of ten thousand dollars, for which sum he prays for judgment against all of the defendants in solido, praying for trial by jury.”

From the foregoing it would appear that plaintiff’s complaint is entirely founded upon a designated pamphlet, which is entitled “ Facts and Truth versus Fiction and Deception; ” and the charge of his petition is that the defendant, Soulé, caused same to be printed by the defendant, L. Graham & Son, Limited, and published and circulated same, thereby contriving to injure and defame him in the prosecution of his business — the plaintiff and Soulé being engaged in the same business, that is to say, the conduct and management of a business and commercial college in the city of New Orleans.

His petition charges that “ said pamphlet is false, malicious and libellous ” in respect to particular quotations which are not set .out in the foregoing extract.

It concludes with the statement that “ the whole of said pamphlet was printed and published by the defendants for the purpose of injuring the reputation and business of petitioner,” etc., and that same “has been widely circulated by said Soulé in this city and throughont the country.”

It is evident, then, that the libel charged must be found in the pamphlet which is referred to and annexed to and made a part of the petition.

A copy of the pamphlet is brought up with the record. It is not addressed to any person by name, and is not signed by any one. Its objects are stated to be “ a correction of misrepresentations regarding the practical courses of study pursued by Soulé College, and the exposure of the erroneous claims of another school.”

It is apparent that the object of said pamphlet is, to correct some alleged misrepresentations that had been made by some one whose name is not furnished.

The opening sentence of it is as follows, viz.:

“ A very pretentious teacher of book-keeping in this city, whom we will designate as the ‘ No Nonsense ’ teacher, has woven a tangled web long and wide by publishing many erroneous and deceptive statements of his superficial course, among which are the following:
“ ‘ Sense versus Nonsense.’ ‘In this course there is no day book •writing, no old fogyism, no copying from other books. Why lose nine to twelve months’ time and expend from fifty to one hundred •dollars tuition, and twenty-five to forty dollars for stationery to learn how books were kept a half century ago, when you desire to know how they are kept now, and can find it out for less than 25 per • cent, of the regular cost and in less than one-tenth of the usual •time! ’
“ ‘ Most commercial colleges teach you half a dozen ways of keep•ing books, not one of which is practicable in business. I teach you one way, which is practicable everywhere, in every business. When you apply for a situation you are never asked, “ How many ways can you keep books?” but “Do you understand book-keeping thoroughly?” Those who have gone over my business course can -answer the latter questions in the affirmative and speak the truth.’ ”

From this we understand that the pamphlet charged to be libellous is in reply to some other and previous publication of some one else from which the foregoing extract was selected, but the authorship of. which is not disclosed.

From aught that can be discovered from the pamphlet or the •quoted extract, the plaintiff was entirely disconnected therewith, and there is no averment of the petition that specifically states that lie was the person therein intended or represented. And but for the petition, which assumes that the plaintiff is the one intended and who was really and actually libeled, there would be nothing to connect him with the pamphlet or its alleged libellous utterances. Surely, there is no allegation in the petition to show that the defendants, Graham, had any knowledge, at the time they put it to press, that ¡the plaintiff was in any way connected with the pamphlet. There is no allegation to the effect that this pamphlet was known, read and recognized in the city of New Orleans or elsewhere as one directed .at or intended to reflect upon the plaintiff.

This is a case of libel by innuendo, without any specific charge of innuendo, nor any equivalent averment.

But if we are to so assume, from certain extracts therefrom ■quoted, of which one has been cited, we must likewise assume that the plaintiff’s previous criticisms had provoked the issuance of the pamphlet as a reply, a correction of certain representations as to the school and methods of the defendant, Soulé.

Without going more into detail and unnecessarily burthening our report, we will state our impression of the pamphlet to be that it is a humorous and somewhat caustic answer to a professed business circular of some competitor of the defendant, Soulé, and that the particular plan was adopted for the purpose of conveying his views efficaciously and yet as circumspectly as possible.

In our conception, there is nothing in the pamphlet to offend good taste or which is libellous per se. It is a heterogeneous argument on book-keeping, replete with extravagancies in language as well as in rhetoric, which were intended to amuse and ridicule the pedantry of his scholastic rival and bring his alleged pretension to superiority into ridicule.

We do not consider publications of this kind as grounding a charge of libel, particularly in view of the fact that the plaintiff was not designated therein. At all events the criticism was provoked, if not fully justified, by the animadversions of the plaintiff; for had it not been for them, the likelihood is the defendant, Soulé, would never have issued the pamphlet.

In our view the judge a quo correctly maintained the exception of no cause of action.

Judgment affirmed.