author: Brbaux, J.

text:
    No. 11,064.
    Citizens’ Bank of Louisiana vs. Marie J. Webre et al.
    The Supreme Court will not order the execution of a writ in disregard of an injunction, nor interfere by mandamus with the action of a district judge granting an order of injunction on grounds of a date subsequent to the rendition of the judgment enjoined and presenting questions against pi oceedings under the writ enjoined.
    The district judge exercised a discretion vested in a court of the first instance.
    Mandamus lies to compel the inferior courts to exercise a discretion, but not to control that discretion.
    y^PPLICATION for Mandamus.

      St. M. Berault and Henry G. Miller for the Relator:
    A writ issued by the late Twenty-second Judicial District Court for the seizure and sale of property in the parish of St. James, the execution of the writ having been suspended for years by an injunction dissolved by the final judgment of this court in February, 1892, is, under the mandate of this court dissolving the injunction,tobe executed by the Twentieth Judicial District Court the jurisdiction of which, under the changes of the judicial districts made since the writ issued, now embraces the parish of St. James. See Acts 1890, No. 69, p. 56; Constitution of 1879, Art. 108; State vs. Oheevers. 32 An. 649.
    When the mandate of this court, based on a decree dissolving an injunction against a writ of seizure and sale, is filed in the lower court, the mandate is to be executed, and this court will enforce that execution; in the exercise of its authority to compel obedience to its decree, this court necessarily takes judicial notice of the lower court and of the sheriff to carry the mandate of this court into effect; hence, when the mandate is sought to be obstructed by a fresh injunction which challenges the capacity of the judge and sheriff of the lower court, this court will from its judicial knowledge determine that question, and if the mandate is being carried into effect by the competent court and sheriff, then, this court will treat the fresh injunction as improvidently issued, and a breach of the mandate, and will compel compliance with it, by mandamus ordering the lower court and sheriff to proceed with the seizure and sale. Code of Practice, Arts. 829, 837, 838; State vs. Judge, 20 An. 522; Hayes vs. Marsh, 11 La. 368; Walker vs. Villavaso, 23 An. 799.

      Bobt. G. Dugué for the Respondents:
    This court has'no original jurisdiction.
    Mandamus does not lie to compel an inferior judge to rescind or revoke an injunction which he has granted in a case over which he has no jurisdiction. 38 An. 31, 274, 558, 921; 40 An. 608.
    Inferior courts are authorized to restrain illegal proceedings under writs issued in execution, of judgments, even though the judgments may have been rendered by this court. Ibid.
    When parties are aggrieved by a judgment refusing to permit them to dissolve an injunction on bond, the remedy is by appeal, not by prohibition. 36 An. 394.

      A rule to dissolve an injunction on bond admits the validity oí the same as a subsisting injunction (33 An. 760), and the party cast can not ignore the judgment and affect to treat the injunction as an absolute nullity so as to obtain relief by mandamus. 38 An. 558.
   The opinion of the court was delivered by

Brbaux, J.

The plaintiff obtained executory process from the Twenty-second Judicial District Court for the seizure and sale of certain property.

The writ was enjoined on a number of grounds.

The injunction was dissolved by the lower court.

On appeal to this court the judgment was affirmed.

The case was remanded and the decree filed in the District Court.

The property was advertised to be sold under the writ on the 18th day of June, 1892.

The writ was again enjoined on an order of the judge of the District Court, and a bond for the injunction was executed in compliance with the order.

The grounds of the second injunction are that the court has been abolished under the authority of which the writ of seizure and sale issued, and that its judgments and writs can not be executed by the present District Court.

That the sheriff can not execute any writ or process of the Twenty-second Judicial District Court.

That the advertisement of the property for sale does not set forth the name or title of any existing court.

Plaintiff moved to dissolve the injunction sued out against it on bond under Art. 307 of the Code of Practice.

The motion to bond was dismissed by the court.

The relator prays for a mandamus directing the sheriff to proceed in the execution of the writ of seizure and sale, and enjoining the judge of the lower court from making any order to interfere with the execution.

In this court the district judge and the defendant have filed separate answers to relator’s petition.

The judge, in his answer, states that he granted the order of injunction on a petition, in legal form, and an affidavit and bond according to law, and that in the exercise of the discretion given to him by law, he was justified in granting the order of injunction.

He disclaims any intention to disregard the authority of this court, and he avers that the matters and things set up in the present suit, before the court over which he presides, arose after the institution of the first suit, and in consequence were not part of the issues decided in the first injunction case.

The change by the Legislature, under Act 69 of 1890, of the judicial districts of the State so that the parish of St. James, with Ascension and Assumption, constituted the twentieth judicial district, instead of St. James forming part of the twenty-second judicial district as it did when the seizure and sale issued, have given rise to the defence made against the execution of the writ.

Mandamus does not lie.

Act 69 of 1890 was adopted since the writ of seizure and sale in this case was enjoined, and if it gave any cause at all for defence, it is of a date subsequent to the decision of this court affirming the judgment of the lower court.

The judge did not see proper to apply preliminarily the rules of construction to the grounds presented in relator’s petition, nor to follow the principles laid down in matter of the transfer of cases from a court superseded by statute to the court by which it is superseded. Cheevers vs. Duffel, 32 An. 654.

In this he acted not on grounds, as contended by the relator, assailing the authority of this court, but exclusively on grounds alleged against proceedings under the'writ.

The case is similar in this respect to State ex rel. Sentell vs. Judge, 38 An. 37.

The court in this case declined to consider the grounds of injunction, which the counsel for relator characterized as frivolous, and held that if frivolous it was enough to find that in granting the injunction the district judge acted within his power and authority.

The writ of mandamus having the effect of dissolving, an order of injunction will not issue.

Questions of the construction of statutes applying to the merits of a controversy can not be taken from the remedy by appeal and be reviewed on an application for a mandamus.

As to whether a' writ of injunction is a writ of right in every case, we have examined a number of decisions and find that the court decided in the Polar Star Lodge case, 16 An. 234, that by fair construction of Arts. 296, 298, 303 and 304, O. P., the lower court is entrusted with judicial discretion to refuse to issue an injunction where it is manifest that it is in direct- conflict with the decree of the court between the same parties.

A similar discretion in the judge is recognized in matter of issuing injunction in State ex rel. Beebe vs. Judge, 28 An. 905.

In Heyniger vs. Hoffnung, 29 An. 57, the case was remanded to enable the district judge to consider and determine whether the facts and allegations set forth in the petition for injunction, together with the affidavit and bond, are sufficient to justify the issuance of the writ prayed for, and in thus remanding this court stated a question of discretion left with the district judge.

The judge’s authority to consider the grounds of application for an injunction, and to exercise, at least, a limited discretion, are stated approvingly in State vs. Judge, 18 L. 544.

A contrary opinion is expressed in the case of Beebe vs. Guinault, 29 An. 797, in which the principle is announced that the party applying is entitled to it as a matter of right, and that the penalty is ample protection if it be obtained without sufficient cause.

We maintain with the first decisions referred to, that the writ of injunction is not wholly a writ of right whenever it is manifest, as it was in said cases (and possibly in the case at bar), that there is no ground for au injunction.

The grounds of relator’s application do not recommend themselves as sound in either case, whether it be held that the lower judge is entrusted with discretion to grant or not the order of injunction, or that the writ of injunction is wholly a writ of right.

Whether the judge is entrusted- with- the discretion he claims in his answer, or the writ of injunction must issue as a matter of right, is of no moment in this case, for after the injunction- has been granted mandamus will not lie to compel the sheriff to proceed with the writ of seizure and sale in utter disregard of the injunction.

We have not found any authority sustaining the theory that a judge’s order regularly granted and complied with can be set aside, and the writ of seizure proceeded with as if no injunction had been issued.

The Supreme Court of Alabama, vested, as is the Supreme Court of this State, with the general superintendence and control over inferior tribunals, nevertheless decided that the inferior courts of the State could not be interfered with by mandamus, to compel the dissolution of an injunction, or its entire disregard. Ex parte, The City of Montgomery, 24 Alabama, 98.

This decision is approvingiy quoted from in High on Ex. Leg., R., p — .

The dissolution of the injunction on bond. The relator alleges that his rule to dissolve the injunction on bond was discharged.

But the prayer of the petition and the argument lead to the conclusion that the relator does not, under the writ of mandamus, seek any relief from the court’s action in having refused to dissolve the injunction on bond.

Be it as it may, the discretion to dissolve on bond is specially given originally to the district judge in words: “ The courts may, in their discretion, dissolve the same” (C. P. 807). Therefore mandamus will not lie to compel a dissolution of the injunction on bond.

It is-ordered that relator’s application for a writ of mandamus be denied at its cost.

Rehearing refused.


source: Caselaw Access Project

author: Nicholls, O. J.

license: Public Domain

text:
    No. 11,073.
    The State ex rel. Whitney Iron Works Company vs. The Judge of the Twenty-Second District Court.
    1. The holder oí a promissory note which bears interest by its terms from maturity, can not claim that he is entitled as a matter of absolute right to a trial without a jury where, on suing the maker on the note, he claims interest from its date under an allegation1 of error, and where, averring that payment of the note is secured by a privilege, he seeks to have that privilege recognized and enforced through pleadings which disclose the fact that the existence of the privilege is a matter still in pais, requiring to be established by parol evidence.
    2. Where, in a case so situat< d, defendant pleads the general issue, specially denies the existence of (he privilege, and prays for atrial by jury, the judge, after hearing, contradictorily made, grants the application, the correctness of his conclusions can not be tested by mandamus proceedings directed against him to force him to try the case by the court alone.
    3. The case was before him in such a form as to authorize him, and make it his duty to entertain defendant’s motion, and judicially determine the rights asserted in that motion on the one hand and denied by plaintiff’s opposition on the other.
    ^^PPLICATION for Mandamus.

      Robert G. Dugué for the Relator.
    The Respondent in propria persona.

      E. Howard McCaleb for Theodore S. Wilkinson, Respondent.
   Application nor Writ on Mandamus.

The opinion of the court was delivered by

Nicholls, O. J.

The relator, the Whitney Iron Works Company, instituted a suit in June, 1892, in the District Court for the parish of Plaquemines, against Theodore S. Wilkinson, in which, alleging that the defendant was indebted to it in the sum of $8062, with interest thereon at the rate of 8 per cent, per annum thereon from the 7th day of December, 1891, until final payment; that payment of the same was secured by privilege on a mill and machinery mentioned in the petition and described in certain accounts annexed thereto, it prayed for judgment for said amount and for a decree recognizing the privilege and ordering its enforcement.

Annexed to plaintiff’s petition and making part of it were eight accounts and a promissory note of the defendant dated December 7, 1891, payable on February 1, 1892, fixed, to the order of plaintiff for value received for the sum of $8062, with interest thereon at the rate of 8 per cent, per annum from maturity until paid.

Plaintiff’s demand was based on that note, save as to a certain part of the interest claimed inthepeti ion, as to which there is a departure from the terms of the note. That bears interest from maturity, whilst the allegation of the indebtedness of the defendant and the prayer for judgment against him is from its date.

The plaintiff, in reference to this variance, alleges that there was an error in making the note bear interest from its maturity. That it was given in partial liquidation of an indebtedness to plaintiff by Wilkinson, and that by and under the agreement of parties the interest on it should have been made to commence from its date.

The plaintiff states in reference to the note that under a contract which resulted from the verbal acceptance of the proposal or offer to him made by the plaintiff and contained in the document marked ■“A,” annexed to his petition, it had sold and delivered to the defendant a certain sugar mill, machinery, etc., and furnished all the material, labor, etc., the whole under the said contract and subsequent verbal requests of the defendant.

That the price of said mill and machinery, including the labor, freight, etc., which were required, and which were furnished and paid for by petitioner to complete and perfect the contract, with the additions thereto and the incidents thereof, amounted to $8845.20, as shown by eight detailed accounts annexed, but that plaintiff had received on account at various times, in cash and merchandise, as shown by an annexed statement, the sum of $8030.80, leaving a balance due of $5314.97.

That the correctness of all said accounts had been frequently acknowledged by said Wilkinson, who had promised to pay the balance, and who, in order to represent the same, had given the plaintiff two notes, one of which was that declared on.

. That the proposed contract and all these statements and accounts and the notes had been recorded in the parish of Plaquemines, where Wilkinson resides, and where the mill and machinery were, on the affidavit of plaintiff’s president, giving an explanation of the same.

That said note was due and unpaid.

At the expiration of the legal delays the plaintiff took a judgment by default, but on the morning of the day upon which it could have been confirmed, the defendant filed an answer, in which he pleaded the general issue, specially denied the correctness of the accounts annexed to plaintiff’s petition, specially denied that plaintiff had any privilege, as claimed by it, and prayed for and obtained an order that the case should be tried by a jury.

It seems that plaintiff’s attorney was not in court when this order was granted, but appeared shortly after, and ascertaining that it had been made, at once protested and demanded that the case should be fixed for trial and tried by the judge.

On this opposition being made, the district judge expressed a willingness to hear both sides as to whether or not his order should be vacated, and after such argument he ordered it to stand or remain as made.

It appears by an extract from the minutes that during the argument plaintiff’s counsel offered to discontinue (strike out) the allegation as to interest being due from the date of the note, and the prayer for such interest, if in the opinion of the court the said allegation and prayer had any bearing upon the case.

The judge, stating that the order must stand or fall according to the state of the pleadings existing when it was rendered, declined to receive or grant the discontinuance, and, as a matter of fact, the pleadings remain (under such circumstances) as they were originally framed.

The plaintiff claimed that its suit fell under the provisions of Art. 494 of the Code of Practice, which declares that “all suits against makers and endorsers of promissory notes, drawers, endorsers and acceptors of bills of exchange', and generally all suits brought in unconditional obligations to pay a specific sum of money, shall be tried without a jury, unless defendant shall make oath that his signature to said note or other obligation is not genuine or he expects to prove that the same had been obtained through fraud or error or want or failure of consideration, or in cases where the defendant in his answer may set up a plea of compensation or reconvention and make oath to the truth of all the allegations in said plea or answer.”

The defendant, on the other hand, contended that under the pleadings of the plaintiff’s petition and those of his own answer this pretension was unfounded. That plaintiff had himself alleged “error” in the note sued on and claimed an indebtedness dehors the note, and that quoad that portion of the demand defendant was not re - quired to take an oath.

The court having adopted the views of the defendant, the plaintiff has applied to this court for a writ of mandamus directed to the judge of the Twenty-second Judicial District aforesaid, commanding him to try the said case without a jury. Whilst in the petition for the writ relator advances positively his right to proceed in the case without a jury and maintains the ruling of the court to be not sustainable, it nowhere charges that the judge acted arbitrarily or oppressively. State ex rel. Geo. Nicholson vs. Judge Civil District Court, 37 An. 842.

The complaint, as brought before us, is that he has decided erroneously, not that the matter before him was in such a form or situation as to withdraw from him the exercise of his judgment in determining between the right asserted in the motion on the one hand, and denied in the opposition on the other.

It is manifest from the petition that the burden of relator’s complaint is not so much- directed to the submission to the jury of the issues involved in the ease as to the delays which will result from granting the motion, for it informs the court that the effect of so doing will-be to unavoidably delay the trial until next April, when, should the jury disagree, an indefinite postponement will follow, and it very unmistakably intimates that the real object of defendant’s motion was directed to that very end.

When the defendant submitted his application for a jury to the court, and it was called on to pass upon it, it was the court’s bounden duty to limit its inquiry to the question whether the application was was well founded or not; if it was, the motives which may have influenced the defendant in presenting it were not before it, nor were the consequences which might flow from granting the legal right to be considered. State ex rel. Leeds vs. Judge Third District Court, 32 An. 545; 34 An. 5; 7 An. 382; 15 La. 526.

If any hardship were to result to plaintiff it would be one springing from the jury system, not the action of the court. As the District Oourt was thus restricted, so are we — even more so.

Relator speaks of the situation as being one occasioned by an ex parte order of a judge. Whatever may have been its original character, it does not bear that character when it reaches us. It comes before us, not as the ex parte order of a judge, but as a “court order” rendered contradictorily between the parties in interest. When a matter has reached that point and comes to us in that form it should ordinarily be sent to us in the exercise of an appellate jurisdiction, either as one of the issues to be passed upon on an appeal from a final judgment, or as an issue to be specially submitted under Art. 566 of the Code of Practice in the matter of an interlocutory judgment working irreparable injury.

An exceptional case should be presented to justify us in entertaining such a matter from the standpoint of our supervisory jurisdiction.

The books are filled with decisions'declaratory of the principle that the writ of mandamus is not to be permitted to be substituted for an appeal, and dwelling upon the violation of the rules of correct practice in detaching the rulings of a court from their regular position, and making them the subject of collateral fragmentary decision dehors the suit, and in this way trying cases piecemeal, and by indirection. This subject is alluded to by Mr. Justice Manning in the case of the State ex rel. Morgan’s Railroad Company vs. the Judge of the 21st Judicial District Court, 36 An. 394, when, speaking of the remedy of mandamus, and the effect of the Oonstitution of 1879 upon it, he said that “ while the range of cases in which we may issue the writ is thus enlarged it does not follow that it may be invoked always instead of an appeal.

“ It would revolutionize our jurisprudence to hold that every right that was formerly enforced by appeal, and every wrong that was formerly redressed by appeal, can now be enforced or redressed by mandamus when an emergency seems to require or invite it.

“ The relator urges that the remedy by appeal is too slow, and that parties were relegated to that remedy under former Constitutions because of the lack of that supervisory control which we now have, and which he conceives to have been given us in order that we may compel the judge to decide as we should decide were the case before us. This would hew a short road between the lower and the appellate court that would soon be blocked by the crowd of traveling litigants.”

Whilst we do not deem it would be wise to lay down any inflexible rule which is to govern our action in this matter, but best to leave each case to stand on its own particular facts, we think it would be safer for litigants who desire to have recourse by mandamus against “ court ” rulings to limit their applications ordinarily to cases where" the matter submitted to the court, although disposed of by it “ judicially,” was disposed of in the performance of a duty ministerial in its nature rather than judicial.

In the case of the State ex rel. Johnson vs. Judge, 40 An. 854, speaking of the range of our inquiries in mandamus matters, this court said that “in a mandamus proceeding we are not at liberty to inquire whether the judge exercised a sound and legal discretion, but to simply ascertain whether he had any discretion in the premises. His exercise of discretion can only be reviewed on appeal.” See also Patton vs. Judge, 40 An. 393.

Is there any foundation for a mandamus in this case under an application of the principles we have just enunciated?

As the motion for a jury was presented, in the form in which it was presented to him, the district judge was justified in believing — even if not correct in deciding, that the defendant was entitled to a jury, trial — the question was sufficiently an open one to authorize him to-proceed to weigh and decide it as one fairly debatable.

The court very evidently, under respondent’s answer, thought that a plaintiff who relies upon the the provisions of Art. C. P. 494 to-sustain him in resisting an application of the defendant for a jury must present himself before the court with his whole claim liquidated, and not only liquidated, but that fact evidenced by the signature of the defendant, and that if the situation was such that any portion of the claim had to be proved by parol testimony dehors the instrument declared on, the plaintiff, was outside of the letter of the law he invoked, and that even were he in doubt on the subject, his duty was to grant the application under the view expressed by this court in State ex rel. Leeds vs. Judge, 32 An. 545. It was there-said :

“The apprehended inconvenience or injury, whether founded or-not, consequent upon the delay to which the relator might be subjected by a trial of the ease by a jury, are entirely foreign to the issue now presented, and must be left out of view. It is wisely provided by law that whenever parties desire to have their differences adjusted rather by a jury than a judge sitting by himself they will, as a rule, on application, be entitled to that privilege. They can not be refused such a valuable right unless the denial is clearly justified. There exists no doubt some exception to the provision, but the complexion of the eases thus taken out is not .easy to be mistaken.”

The court found, as this court finds, that whilst relator’s suit was, as to the principal, based upon a promissory note, yet as to the conventional interest demanded he departed from the terms of the-note, claiming interest, not from maturity, as that -instrument showed, but from its date, on an allegation of “ error,” and that this increased interest and this error had to be established by outside testimony; the court also found that whilst relator averred that defendant’s indebtedness to it was secured by a privilege which it was seeking to enforce, the proof of the facts upon which the existence of that privilege was to depend were facts still en pais, necessitating the introduction of parol testimony. The note sued on not stating the consideration and being connected with no written evidence, either by paraph or by reference, it found that under relator’s pleadings the “contracts,” from which he states the privilege arose, came into existence from the verbal acceptance by the defendant of ■“ proposals ” of contract to him made by the relator, and that it is nowhere claimed or pretended that there exists any written evidence of these contracts.

Under this condition of the pleadings and facts we hold, as we have already said, that the court below was authorized to weigh, and, by the exercise of its judicial discretion, to determine whether or not such a case was before it as forcedly cut off a jury trial.

Whether the conclusions reached are correct we are not called on here to say. In order to make the writ of mandamus peremptory we would have to presently determine that question and undo what has been affirmatively done, for the case is not one of inaction by the court — -it has acted — it has decided.

It has been well said in State ex rel. Bryan vs. Judge, 36 An. 112, that “a mandamus issues to proceed and not to recede — to do and not to undo;” and though there may be cases where the writ has been resorted to directly requiring certain things to be done in spite of prior action of a judge ruling to the contrary, we think they will be mostly found to be cases where the prior action was of such a character or taken under such circumstances as to justify and authorize its being absolutely ignored, or where new conditions have ■arisen since such action was taken. The present is not one of that ■character.

Relator relies very much upon State ex rel. Chism & Boyd vs. Judge, 34 An. 1177, but that case differs from this in its facts and its pleadings. There was no allegation made there by plaintiff himself as to an error in the obligation he was suing upon and for which a correction was sought, and the accessory obligation of pledge declared on was evidenced by an authentic act identified with the note declared on, both principal and secondary obligation bearing the signature of the defendant.

In reaching our conclusion in this matter, the decisions in Cohn vs. Judge, 41 An. 43, and Improvement Company vs. Judge, 41 An. 369, have not escaped our attention.

Relatively to relator’s offer to strike out its allegation as to error And that portion of its prayer based thereon, it may be well to say that it was a conditional, not an absolute offer; that this action of the judge on that subject is only incidentally alluded to and that under the pleadings it is not an issue in the case, and that besides, were that allegation and prayer stricken out, there would still remain, features in plaintiff’s suit sufficient to defeat its present application.

For the reasons herein assigned the writ of mandamus prayed for . is refused.

Rehearing refused.


author: NichollSj O. J.

text:
    No. 11,132.
    The State ex rel. A. Bassetti and Wm. H. Churchill vs. Judge of the Second Recorder’s Court of New Orleans.
    1. Prohibition is an order rendered to forbid further proceedings in a cause on the ground of a want of jurisdiction. When the proceedings in a particular-case have terminated, it would be quite futile to issue that writ.
    2. The jurisdiction of a committing magistrate is not affected by the fact that in affidavits taken before him, wherein facts are charged to have been committed which constitute a crime, an error has been made in the statement as to the ■ particular statute violated, the statement can be stricken out as surplusage, and the error disregarded.
    3. The Supreme Court will not consider an application for a writ of prohibition unless it be shown that relief on the ground of a [want of jurisdiction was unsuccessfully sought below.
    PPLIOATION for Prohibition.

      Buck, Dinkelspiel & Hart for the Relator:
    In the case of Larthet vs. Forgay, 2 An., p. 254, this language appears:
    “ The court below charged the jury in substance, and, we think, correctly, that the breaking into and search of the plaintiff’s shop and dwelling were not authorized by the warrant. The search should have been confined to the cabaret, or, at most, to the premises of Marcel. Such warrants must be construed strictly. The law regards the dwelling and the domestic repose of the citizen with too much jealousy to trust the place of execution, of such process to the discretion of police officers. So important is this subject that it has been deemed worthy of express notice in. the Constitution of the United States, which declares that ‘ the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no-warrants shall issue but on probable cause, supported by oath or affirmation,’ .and particularly describing the place to be searched, and the persons or things to be seized. Amendments Const. United States, Art. 4.
    “ This article is an affirmance of a great constitutional doctrine of the common law, which had nevertheless been occasionally violated by general warrants and to prevent this abuse the solemn written prohibition was framed. A principle so indispensable to the enjoyment of personal security and priyate property should be enforced in its full spirit and integrity; but it would be violated if courts should sanction such a latitude of construction as invoked by the defendant for the warrant in question. See 13 Mass. 286; 3 Story on the Constitution, 748.” Larthet vs. JTorgay, 2 An. 254.

      Lionel Adams for the Respondent:
    1. For separate suits against several individuals, there should be several applications for prohibition. ITeard’s Shortt Ex. Item., p. 486; Am. and Eng. Encyc. Law, pp. 280, 281; 39 An. 1030; 32 A. 1165.

      % The writ of prohibition will not issue where the question of jurisdiction has not been raised or decided by the lower court. High’s Ex. L. Rem. (2dKd.), Secs. 733, 765; 19 Am. and Eng. Encyc. Law, p. 270; 29 An. 806; 37 An. 845; 38 An. 569; Id. 920; 40 An. 607; 41 An. 910.
    This rule obtains ;in the proceedings had before a Recorder’s Court of New Orleans. State ex rel. Baker vs. Recorder, 43 An. 1119.
    3. If the application for the writ is submitted simply on the petition and answer, and the answer denies the leading allegations of the petition, the writ should be dismissed. 19 Am. and Eng. Encyc. Law, p. 281.
    •4. Prohibition is an extraordinary judicial writ, issuing out of a court of superior jurisdiction and directed to an inferior court for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally vested. High’s Ex. L. Rem, (2d Ed.), Secs. 762. 765; 19 Am. and Eng. Encyc. Law, p.2e6; O. P., Arts. 845, 487,851; Const., Art. 90.
    5. Like all other extraordinary remedies, this writ is to be resorted to only in cases where the usual and ordinary forms of remedy are insufficient to afford redress. High’s Ex. L. Rem. (2dEd.), Sec. 770; 19 Am. and Eng. Encyc. Law, p. 266; 11 An. 696; 21 An. 123.
    -6. It can not be made to perform the functions of an appeal, a writ of error, or a certiorari— its purpose being, not to correct errors, but to prevent an usurpation of jurisdiction. 19 Am. and Eng. Encyc. Law, pp. 266, 268; High’s Ex. L. Rem., See. 767, 771, 772; Heard’s Shortt Ex. Rem., p. 438, note; Broom. Comm. (7th Ed.), 231, 232; 19 Am. and Eng. Encyc. Law., p. 274; 33 An. 1356.
    7. The recorder’s duties and functions with respect to the complaints made before him against the relators are purely ministerial, as they are clearly and specially pointed out by positive enactments, and no element of disci'etion is left in their performance. R. R., Sec. 1010; Acts of 1884, p. 117; Acts of 1886, p. 64.
    8. While the writ will go in proper cases, as to matters of purely judicial nature, it will not issue if the proceedings which it is sought to prevent are only ministerial. High’s Ex. L. Rem., Sec. 769; 19 Am. and Eng. Encyc. Law, pp. 268, 269; Heard’s Shortt Ex. Rem., p. 440.
    9. (a) The regularity of the proceedings of inferior courts is presumed, jurisdiction once being shown to exist.
    (Z>) The burden of proof is on those who deny that the formal requisites to its validity have been complied with. Lawson, Presumptive Ev., p. 34, et seq.; 19 Am. and Eng. Encyc. Law, p. 49.
   The opinion of the court was delivered by

NichollSj O. J.

Relators aver that upon affidavits made before A. R. Moulin, Judge of the Second Recorder’s Court of the city of New Orleans, by Phil. Jacobs on “ information received,” warrants for their arrest issued, they being charged with violation of Act No. 10 of 1874.

That in said affidavits a statement was made that a search warrant should issue to seize all books, papers, letters, etc., contained in the office of relators, at the corner of Customhouse and Dorsiere ■streets, in this city.

That no cause, probable or otherwise, was shown why a search warrant should issue, and the things to be seized were not particularly described as required by the Bill of Rights of the Constitution ■of the State.

That under said affidavits and warrants relators were arrested and kept at their place of business several hours, denied ^he benefit of bail, their office ransacked by the policemen, and finally same was taken possession of by them — they retaining the keys thereof — when, after repeated, demands of the judge, he finally allowed relators to be taken to his court, where bail was given, the officers previously refusing to take relators to court or to jail, but keeping them under arrest in their own office.

That said proceedings were instituted and carried on under a law which was expressly repealed more than thirteen years ago, and are absolutely null, void and illegal.

That said so-called search warrant was unwarranted and improvidently issued because no cause was shown for same, no proper oath was made in reference thereto, and the things to be seized were not particularly described.

That relators demanded of the clerk of said court copies of said affidavits to present to this court as part of their petition, but they had been unable to obtain the same, and had been told on the day of the filing of the same that they would be given copies during the day after 12 o’clock, and therefore relators had beenunable to present copies to the court.

That they had no remedy in the premises save by a writ of prohibition from the hands of this court. Relators prayed that a writ of -prohibition issue directed to the said Judge of the Second Reeordr er’s Oourt, prohibiting and restraining him from proceeding further under the aforesaid affidavits and warrants, and that he be ordered to show cause why the prohibition should .not be made perpetual, and all proceedings under said affidavits and warrants be annulled and set aside.

On this application the recorder was ordered to show cause why the writ of prohibition should not be granted, and in the meantime and until further orders of the court further proceedings under the affidavits and warrants issued were stayed.

The recorder’s answer was to the effect that there was a misjoinder of relators; that there had never been any proceedings instituted in his court in which they were joined; that the only prosecutions pending against them are separate and distinct affidavits charging each of them individually and separately with having sold and offered for sale certain tickets in an unlawful lottery in this State; and with having, each of them, aicfed, assisted and abetted, and having been interested in, an unlawful lottery within the State; and with setting up, promoting and managing the said unlawful lottery, which was commonly known as the Mexican Lottery Company; and that all of the acts therein charged to have been done by the relators were unlawfully done and constitute an offence and of-fences against a good and valid statute of the State of Louisiana, to-wit: Act No. 44 of the session of 1879.

That in said affidavits it was separately and distinctly charged upon oath that each of said relators did, upon the dates therein mentioned, “sell, barter, exchange, give and otherwise dispose of, and did each have in his possession, within the State, with intent to sell and offer for sale, and to barter, exchange, give and otherwise dispose of certain tickets, intending and purporting to entitle the holder or bearer to a prize drawn and to be drawn in a certain lottery company known as the Mexican Lottery Company, which is not authorized by the laws of Louisiana.”

And that in said affidavits it was separately and distinctly charged “ that each of them did aid and abet in promoting a lottery not now authorized by the laws of the State, the Mexican Lottery Company, and was concerned in setting up and promoting and managing said company, all of which respondent declares was in violation of said Act No. 44 of 1879.”

That by error in making out the affidavits the act of the State declared therein as having been violated was referred to as being Act No. 10 of 1874, instead of said Act No. 44 of 1879.

That the cognizance of the prosecutions before this court instituted against relators belonged of right to his court because of its territorial jurisdiction, and that he, as a recorder thereof, is a committing magistrate, with competent authority to receive the said complaints against relators, to cause their apprehension, to issue search warrants for the obtaining of evidence of a commission of the offence against them charged, to summon and hear witnesses, and to determine, after inquiry and examination, whether it appears that the said offences charged against relators had been committed.

That he was duly authorized, and it was competent for him notwithstanding the said error contained in the affidavits, to have proceeded in accordance with law with the examination of the complaints against relators for violating a penal statute of the State, and that by law of the land they were bound to answer the same.

That on said complaints upon oath, charging the recited complaints against the relators, a search warrant was prayed for to search for “ all the books, letters, papers, tickets, stamps, and all the documents and instruments appertaining to or concerning a certain lottery company known as the Mexican Lottery Company which might be found in the building corner of Customhouse and Dorsiere streets, occupied by A. Bassetti and William H. Churchill, who were “.chargedupon oath with setting up and promoting within the State the said Mexican Lottery Company, which is a lottery not authorized by this State.”

Respondent further answered that while it was true that relators were arrested at their place of business, it is not true that they were kept there in custody for several hours, or that their said place of business was taken possession of by the officers of the said recorder’s court, who retained the keys thereof, but that the detention of the said relators at their place of business was no longer than was necessary to make the search required under the warrant issued by respondent’s court, and to communicate to respondent the refusal of the relators to permit the iron safe within their office to be opened under the authority of the search warrants directed for execution to the said officers.

That the proposition to turn over the keys and to place the control and custody of the said office and place of business in the hands of the court was voluntary upon the part of the relators through their counsel.

That the copies of the said affidavits incorrectly stated to have been made pursuant to the provisions of Act 10 of the Acts of 1874 were not made and furnished to said relators, and could not be made and furnished before the hour set out in their petition, for the reason that the affidavit clerk of the Second Recorder’s Court was engaged in drawing up, pursuant to new complaints, corrected and perfected charges for the same acts against the said relators for violating the provisions of Act No. 44 of 1879.

That this is not a proceeding having for its object to ascertain whether or not the proceedings before the respondent’s court have been regular, but one that sets out that respondent is not competent to examine pursuant to the provisions of law into the complaints against the relators upon oath, made'for the reason that the said complaints and proceedings “were instituted and are carried on under a law which was expressly repealed more than thirteen years ago, and are absolutely null, void and illegal, and that the so-called search warrant was unwarranted and improvidently issued, because no cause was shown for the same, no proper oath was made in reference thereto and the things to be seized were not particularly described.

That the proceedings against the relators had in his court have not been brought before this court, and that it is therefore impossible for the court here to determine whether the same are regular in substance and in form.

That the acts complained of did constitute offences against a gocd and valid law of the State, and that it was competent for respondent, upon reasonable cause, on oath particularly describing the place to be searched and the things to be seized, to issue his search warrants directed to the proper officers, and that having power, authority and jurisdiction to receive the said complaint and to examine into same, and to issue his search warrant upon due and proper showing, in absence of proof to the contrary the proceedings had before respondent are presumed to have been regular, and all the facts necessary to warrant the issuing of his warrants will be presumed to have been established in the manner required by law.

Respondent prayed that his answer be considered in law sufficient to justify his conduct; that the complaint against him be dismissed at relators’ costs.

This case, under its pleadings and prayer, comes before us exclusively as one for a prohibition. Relators have not asked, nor has this court ordered under Art. 855 of the Code of Practice, that “ a certified copy of the proceedings be sent (to us) to the end that their validity be ascertained.” The record below has therefore not been brought up.

It is true that respondent, on the application made to us, has been ruled to show cause why the' proceedings under the affidavits and warrants should not be annulled, avoided and set aside, but we regard that prayer to be merely incidental to the particular relief sought, and as asking that should the prohibition be perpetuated, in the order or decree to that effect, should be adjudged the annulment of antecedent acts of the recorder, on the restricted ground of want of jurisdiction on that officer.

We do not understand the prayer for nullity to be properly leveled against any class of nullities as against which certiorari would be the proper remedy.

Eor the special reason stated later we would be constrained to decline granting relators the relief they ask, but we think it not improper to say that prohibition only issues properly ‘ ‘ to prevent further proceedings in a cause” (C. P. 846), and that where the pleadings and evidence show in any particular case that they have been closed it would be a futile act to grant the writ. We infer, in the matter of the present application from respondent’s answer, that all proceedings under the original affidavits and warrants have ter - minated and been abandoned.

It is claimed by relators that the affidavits upon whiclt they were arrested declared that they had violated Act No. 10 of 1874.

That that act was expressly repealed more than thirteen years ago, and therefore the recorder was proceeding without any basis upon which to rest his action.

The recorder replies that these affidavits recited in detail certain facts which, if true, disclose that a crime "against the State has been committed by the relators, and that the statement therein of the particular statute violated was unnecessary, and could be stricken out as surplusage, or disregarded, and that an error in this respect did not affect his jurisdiction. In this he is clearly right.

This view does away with any necessity for considering the question whether or not Act No. 10 of 1874 is repealed, assuming such an issue could be properly raised or be made the basis for a writ of prohibition against a committing magistrate.

Independently, however, of all other considerations, relator’s application must be denied for the reason that it nowhere appears that they have urged below upon the recorder that he was proceeding outside of his authority and jurisdiction, and sought relief fyom him on that ground.

This court has so frequently decided that this was an essential prerequisite for the granting by it of a writ of prohibition that a citation of authorities upon the point is unnecessary.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the provisional order herein made be rescinded, and that the application of the relators for a writ of prohibition be and the same is hereby refused.


author: Eennbr, J.

text:
    No. 11,071.
    No. 11,072.
    The State ex rel. Morere et al. vs. Judge of Second Recorder’s Court. The State ex rel. Jean Murat et al. vs. Judge of First Recorder’s Court.
    1. Recorders in New Orleans are vested with power and jurisdiction to try and sentence violators of legal and valid city ordinances.
    2. The defence that a city ordinance is illegal and unconstitutional does not impugn the power and jurisdiction of the recorder to hear and determine that and all other issues involved in the case. Art. 81 of the Constitution clearly recognizes the authority of the proper inferior tribunal to hear and determine cases in which “the constitutionality or legality of any fine, forfeiture or penalty by a municipal corporation shall be in contestation,” and to decide all questions of “ the law and the fact” arising therein, and provides an appropriate and sufficient remedy for errors in such decision by an appeal to this court.
    8. In such cases the overruling of pleas arraigning the constitutionality and legality of the [ordinance proceeded under affords no ground for invoking our supervisory jurisdiction through the writ of prohibition. The proceeding must complete its course, and errors committed in that or any other respect must be corrected by the constitutional remedy of appeal.

      REPLICATION for Prohibition.
    P. L. Fourehy and Albert Voorhies for the Relators.

      Louque & MeOloin for the Respondents.
   The opinion of the court was delivered by

Eennbr, J.

These cases, though not consolidated, were submitted together and, involving identical issues, may be decided together.

-Relators were prosecuted before the respondent Recorder’s Court for violation of City Ordinance No. 6596, O. S., which provides certain regulations touching the sale of milk in this city and certain penalties for the violation thereof.

They appeared and filed a demurrer containing no less than seven distinct grounds. We have examined these very critically and find in them no other matter than the assertion of various grounds on which they claim that the ordinance is illegal and unconstitutional. They present no exception to the jurisdiction of the court eo nomine and no denial of the power of the court to hear and determine the cause, except such as is implied in the denial of the legality and constitutionality of the ordinance.

If the ordinance be legal and constitutional, the jurisdiction and power of the recorder, to hear and determine the cases, pass out of controversy, because Sec. 49 of the Oity Charter, Act 20 of 1882, expressly confers on recorders the power to enforce all city ordinances and to try, sentence and punish all persons who violate any valid and legal city ordinance,” and this provision has received constant judicial sanction.

The objections to the legality and constitutionality of the ordinance were a perfectly proper defense; but they were nothing more than a defense, and the power of the recorder to determine it and, after overruling- it, to proceed with the cause, does not admit of question. It is implied in the provision of Art. 81 of the Constitution itself, which extends the appellate jurisdiction'of this court to “ all cases in which the constitutionality or legality of any fine, forfeiture or penalty by a municipal corporation shall be in contestation,” and declares that “in such cases the appeal on the law and the fact shall be directly from the court in which the case originated to the Supreme Court.” No language could more clealy recognize the power and authority of the proper inferior tribunal to hear and fully determine causes involving such “contestation” and to decide all questions of law and fact ” arising therein.

Errors of decision in such cases find their appropriate and sufficient remedy in the right of appeal to this court, which is thus expressly guaranteed.

Relators gravely misapprehend the function of the writ of prohibition, and the rules adopted by this court in the exercise of its supervisory jurisdiction, when they invoke it in such a case.

If the case were unappealable and the writ of certiorari had been joined with that of prohibition, different principles might apply. State ex rel. Walker vs. Judge, 39 An. 134; State ex rel. Debuys vs. Judge, 32 An. 1258.

But to authorize such relief in a case like the instant one would be practically to supplant the remedy by appeal in every case, civil or criminal, in which the defendant chose to plead the unconstitutionality of the law on which the plaintiff’s claim was based.

The case is not altered by the fact that one of the grounds on which the illegality of the city ordinance is charged is that it is ultra vires because conflicting with certain State statutes in pari materia which prescribe penalties for similar acts, of which the State courts have exclusive jurisdiction. Relators are charged exclusively with violating the city ordinance, and, whatever the character of the particular acts charged,if it be judicially determined that the ordinance is illegal and unconstitutional, this prosecution will surely be dismissed. If they were being actually prosecuted in the State court for the same offense, perhaps there might be "some propriety in invoking our supervisory powers to stay the proceedings in one court or the other until decision of the question thus put at issue. But no such double prosecution exists; no conflict of jurisdiction has arisen; and no reason appears why these causes should not proceed, in ordinary course, to a final determination which will settle all questions affecting the alleged conflict.

It is, therefore, ordered and decreed that the provisional writs herein issued be annulled and set aside, and that the applications of relators be denied.

Rehearing refused.


author: Breaux, J. Fenner, J.

text:
    No. 11,067.
    Raymond B. Scudder vs. William W. Howe.
    1. Parties, by mutual consent, can abrogate or modify legal agreements having the effect of law.
    2. Realty donated originally, to which other values are substituted in good faith, and with the consent of all concerned, is not subject to an eventual right of reduction at the instance of the forced heirs.
    8. Elementary principles depend in their applications upon a similitude of facts.
    4. The circumstances of a'particular case should never be applied to eases not strictly parallel.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Browne & Choate for Plaintiff and Appellant.

      Jerome Meunier and S. 8. 'Prentiss for Defendant and Appellee.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sues the defendant to compel him to accept the title he tenders to him of certain real estate.

He alleges that he acquired by purchase from Mrs. Flor estile Boulemet, widow of Charles T. Howard, by authentic act.on the 29th of August, 1889, and that his deed of purchase was duly registered.

He sets forth, in his petition, that he acquired under this purchase a legal and complete title from his vendor, Mrs. Howard, who was the owner holding a valid title.

He avers that he made, on the 21st of April, 1892, an agreement in writing under private signature, by which he agreed to sell to the defendant a portion of said property for the sum of $10,000.

He states that he has tendered to the defendant a full and perfect title of said property by authentic act containing all of the agreements and conditions embodied in the deed of sale, and that the defendant has declined to accept the same without assigning any valid reason.

He prays for a judgment condemning the defendant to accept the title and comply with the conditions contained in the agreement of sale.

The defendant in his answer admits the execution of the agreement of sales, but denies that the title of the property is good, clear and perfect.

He alleges:

That the property was donated by Mrs. Howard to the “Children’s Home of the Protestant Episcopal Church” by authentic act, on the 24th of July, 1889.

That on the 29th of August, 1889, the Children’s Home conveyed the property by authentic act to Mrs. Howard under a resolution adopted by its board of trustees.

That on the 29th of August, 1889, Mrs. Howard conveyed the proceeds of the last mentioned sale to the Children’s^Home by authentic act.

He concludes by averring that the title tendered him is, under the several acts and resolutions set forth, subject to the implied resolutory condition, that if at the death of Mrs. Howard the donation of July 24, 1889, shall proveto be in excess of the disposable portion of her estate as then ascertained, the said donation could then be resolved to the extent of said excess, and the forced heirs of the donor could revendicate the property in the manner provided by law, and he would be liable to eviction therefrom.

The facts are undisputed that the plaintiff agreed to sell the property to the defendant; that he tendered to the defendant an authentic act to the property, which he refused to accept.

That Mrs. Howard donated the property to the Children’s Home as alleged.

That under a resolution of the Board of Trustees of the Children’s Home, the title of the property was made out_ in the name of Mrs. Howard, who afterward sold it to plaintiff.

The resolution sets forth substantially that considering the want of authority in the corporation to make a perfect title to the property acquired by donation from Mrs. Howard, which is fully described; that it is useless to the corporation; that it is in need of funds; and further considering that the donor agreed to donate to it the proceeds of the sale of the property, “ provided the said donation be revoked so as to enable her to make a title thereto.

“ It is therefore resolved this corporation do, and it does hereby agree, revoke and rescind and consent to the revocation for and in consideration of the proceeds of the sale, which are to be donated to it by the said Mrs. Howard.”

The treasurer, in the resolution following the above, was authorized to formally revoke by authentic act in the name of the corporation, and retrocede the property to Mrs. Howard. He was also authorized to accept the proceeds of the sale of the property.

In the act of revocation, drawn in the usual form, the appearers declare that they “ revoke, cancel and annul the said donation.”

In the clause following the parties declare that the revocation and retrocession is made for and in consideration of the price of the sale of the property herein conveyed, which is to be made by Mrs. Howard as soon as possible, which proceeds she binds herself immediately to donate to the Children’s Home, whether received in cash or notes, or part cash and notes, without any further obligation upon her part.”

According to the resolution hereinbefore referred to, it appears that the parties hereto were induced to enter into this agreement and revoke the donation hereinbefore mentioned, because of the inability of the donee to sell and make a perfect title to the property herein described under the said donation; and inasmuch as the donee is in need of money to provide for the maintenance and the education of the orphans and destitute children committed to its care, this revocation and retrocession is made for the consideration hereinbefore mentioned.

It was after this deed had been signed that Mrs. Howard sold the property to the plaintiff.

On the same day she donated the proceeds of this sale to the' Children’s Home.

In this last act she declares that in order to carry out the obligation“by her contracted this day in favor of the Children’s Home, and in consideration of the revocation of the donation made by her to the corporation on the 24th July, 1889, she donates the cash and three notes, proceeds of the sale of said property, to the plaintiff.

It is proven that prior to the transfer of the property to Mrs. Howard it was offered to the plaintiff by the Children’s Home, and that he declined to accept the title, as he was|advised that the Home was without authority to sell the property.

Although it had value, the ownership of the property was of very little benefit to the institution.

It being advisable to sell it and not having the authority to sell, and the Home being in need of funds, they called on the donor to revoke the donation, to which she agreed.

The plaintiff is not shown to have been concerned with the agreement to revoke the donation, nor a; party in any manner to the different acts to that end.

The record discloses that Mrs. Howard has, as alleged, three children and three grandchildren living; the latter are minors.

The property was hers prior to the donation; her title was complete and legal.

She had the absolute right to make the donation to the Children’s Home.

Permis (i ehaeun d’abdiguer sa propriété.

There is no question but that all the parties to the donations and transfers have acted in good faith.

There was no concealment, nor the least attempt to evade; the sons of Mrs. Howard were advised with and expressed their approval.

The agreement prior to the different acts and the acts themselves are conclusive of the intention.

The first question for determination relates to the legal effect of the act of 29th August, 1891, passed in compliance with the agreement to revoke the donation of the 24th July, 1889.

It remains for us to determine whether the intention of the parties is defeated by the fact that the resolution of the board of trustees and the act contains, in effect, the'statement that the Home was to accept the donation of the price which Mrs. Howard promised to donate.

In support of the proposition that the property passed to Mrs. Howard, and through her to the plaintiff, with defects which will enable her forced heirs, if at her death the donation proves to be in excess of the disposable portion, to have it resolved to the extent of surh excess, the defendant argues that irrevocability is of the essence of donation, and that the donor can not even with the consent of the donee revoke (in the legal sense of the word) the donation.

There are certain exceptions to the rule of the irrevocability of donation inter vivos, and when they do not arise the title is complete and legal, and the donor can not revoke the donation without the consent of the donee.

But the parties, donor and donee, have the authority to rescind or modify the donation by mutual consent.

The parties can abrogate or modify legal agreements having the effect of law. C. C. 1945.

The text from Laurent, Yol. 12, p. 574, No. 491, to which our attention is invited, does not impress us as conclusive upon the subject.

Laurent differs from Demolombe as to the possibility of the donee divesting himself of the property donated by renouncing the donation. The latter argues affirmatively; the former characterizes it as a false principle.

The text itself reads:

“ Toutefois pour montrer oñ conduisent les faux principes, nous eiterons la doctrine d’un auteur dont la réputation est grande. M. Demolombe demande comment le donataire fera l’abandondes biens dans les cas oñ il peut renoncer á la libéralité?

“Le droit et le bon sens répondent que le donataire étant devenu propriétaire irrévoeable, ne peut se dépouiller de cette propriété qu’en vertu d’un nouveau contrat, soit une donation, soit une vente. M. Demolombe rejette cette solution, pareequ’elle témoigne contre son systéme; il en résulte en effet que le donataire ne peut renoncer, sans le consentement du donateur, ce qui renie la doctrine.” (The italics are ours.)

That the donee can renounce without the consent of the donor is the doctrine advocated by Demolombe and Pargole. Laurent does not entirely concur with this view.

The act of August, 1889, is assailed as not being a revocation nor a donation, but it is contended that it was a trust or mandate.

The stipulations of the act were not intended to appo’nt Mrs. Howard agent.

She was vested with the absolute ownership of the property.

Though the act sets forth her promise in reference to the price, it in no respect constitutes her an agent.

The “Children’s Home” parted absolutely with its title from the date of the deed which its treasurer was authorized to sign.

The act of sale made by her to the plaintiff and the deed subsequent, donating the price does not contain any evidence of an intention to accept an agency, or to in any manner act as mandatory.

She is not a party as agent; but in her individual right.

She warrants the title and in no respect represents the “Children’s Home.”

The deed of revocation contains separate stipulations — two acts, it may be said; the first, that relating to the revocation, stands alone and completely revokes the donation.

The second contains the stipulations as to the price which Mrs. Howard bound herself to donate.

In selling she exercised the right of owner under that portion of the deed which revoked the donation.

The obligation to donate the price of her own property did not constitute her an agent.

We are not particularly concerned in deciding this point; with donations and sales and with questions to establish that it can not be one or the other; questions that are argued by defendant’s counsel.

The donation was revoked.

The effect of the onerous condition of the revocation must be de-termined and whether the lot originally donated is subject to the demand in reduction de donation.

That onerous conditions were imposed does not destroy the validity of the revocation.

The Children’s Home renounced all rights; they abdicated all title as donees of the property in order that they might receive the price, which Mrs. Howard expressed herself willing to donate.

The donor substituted to the property originally donated the amount of #20,000, which she received as the price.

The forced heirs are and will always be without interest to assail the donation revoked.

It is no concern of theirs, in law, that their mother has revoked the donation.

It is the sum donated which has lessened the estate of the donor, and it alone can be subject to future rights.

As illustration, which must be brief, let us substitute the $20,000 to the land in the different deeds, and suppose as a result (the original donation having been revoked and the money returned) that instead of that amount, the Children’s Home had become the owner of the land by donation of Mrs. Howard, after having revoked the donation of money, would the $20,000 be the amount donated?

It would serve no good purpose to burden realty with claims only because of its immovable character.

It possibly offers greater security.

“La propriétéde tiers acquereurs ne doit pas étre sacrifice ál’intérét, assez faible en effet, que les féservateurs peuvent avoir d’obtenir les Mens en nature plutót que leur valeur.” Marcadé, de l’action ou réduction.

Our attention is directed to'the Tessier vs. Roussel case, 41 An. p. 474.

We have given it consideration.

The principles laid down in that case are sound. They do not apply to the case at bar.

There was no attempt made to revoke the donation; it remained one of the deeds in the line of titles not revoked, but confirmed by subsequent proceedings.

We quote from the opinion:

“ He claims that the effect of these dealings was to operate a conventional rescission of the donation by mutual consent of the donor and donee.

“We need not discuss what would be the effect of such a conventional rescission of a completely executed¡donation, beeause.it is clear that none such has taken place in the instant case.”

The question suggested as not an issue for decision in that case is presented in the case at bar.

Principles are binding as authority if there is a similitude of facts; they apply to a case parallel in its circumstances; if drawn from one case the most perfect similitude of facts ought to be shown.

The case referred to can not be considered as an authority without violating the rule with reference to precedent, which we have just expressed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now adjudged and decreed that there be judgment in favor of plaintiff, condemning the defendant to comply with his agreement to purchase the property described in plaintiff’s petition, and accept title thereto tendered him by the plaintiff, and accept the terms and conditions of his agreement.

The defendant and appellee to pay the costs of both courts.

Concurring Opinion.

Fenner, J.

In Tessier’s case, 41 An. 479, we expressly stated two questions which we left at large and undecided by that opinion, viz.:

1. Whether a conventional rescission of the donation by mutual consent of the donor and donee would relieve the property donated from the eventual claims of the forced heirs of the donor.

2. Whether the subsequent reacquisition of the property by onerous title and for a full consideration would have such effect.

The object of the remedy of reduction as a sanction for the rights of forced heirs is to prevent the diminution by gratuitous title of the donor’s estate, and, to that end, to bring back into his estate property so donated, for the purpose of answering the claims of the forced heirs to the extent necessary.

The application of the above principle furnishes an answer to both the above questions.

When the donation has been conventionally rescinded, and the property donated has been restored to the donor in its integrity, the status quo is completely re-established, and the donor’s estate stands undiminished, just as if no donation had ever been made. The forced heirs then have no ground of complaint, Ibecause their eventual rights have been in no manner impaired.

On the other hand, when the donor reacquires the property by onerous title and for a fair consideration, this does not restore the status quo or repair the diminution which had been made of the donor’s estate. On the contrary, while he has received back the property, be has, at the same time, parted with its value. The consideration passes to the donee, obviously free from any claim of the forced heirs, and if the property in the hands of the donor did not remain affected by their rights, the remedy which the law affords would be completely nullified. A man desirous of defeating the claims of his forced heirs could effectually do so by repeated donation and buying back of the same piece of property.

In this case, as I think properly, the court holds that the transactions between the Children’s Home and Mrs. Howard evidence (1) a conventional rescission of the donation of the property, and (2) a new donation of $20,000.

When the first was accomplished, Mrs. Howard was reinvested with full ownership of the property and her estate stood undiminished precisely in the condition in which it was before any donation had been made. The rights of the forced heirs had not been, in any manner, impaired and they had no right, present or eventual, to complain.

When the subsequent donation of $20,000 was made, that, it is true, again diminished her estate, but that sum passed to the donee by gratuitous title, affected by the resolutory condition implied in all donations in favor of the forced heirs, and subject to their eventual rights.

The defendant has no concern with the particular motives which actuated the parties in these transactions. It is enough for him to find that the donation which had been made of the property had been validly rescinded, that Mrs. Howard had been reinvested with the ownership without the slightest prejudice to the rights of forced heirs, that she had the lawful right to sell the same and that the law gives the forced heirs no right to complain of such sale in any event.

So far as the subsequent donation of $20,000 is concerned it is, in form and substance, a donation, and the eventual rights of the forced heirs attach thereto and find therein the only protection which the law affords.

No one could contend that the rights of the forced heirs affect both the property and the $20,000 donated.

In the nature of things, they can affect but one; and it is so clear that they do attach to the $20,000 and that, the Children’s Home, under its acceptance of that donation, would be precluded from disputing it, that this powerfully confirms our conclusion that the property is free.

For these reasons, which obviously lie at the basis of the main opinion, and which I have merely expressed in different language, I concur in that opinion and in the decree.


author: Breaux, J.

text:
    No. 11,086.
    Ferdinand Reusch, Jr., vs. American Brewing Association.
    The terms of the proposals to receive bids not being proven, nor that the defendant was to be bound by the offer of the lowest bidder, and it not being established that plaintiff was the lowest bidder, the defendant company is not liable in damages for violation of contract.

      PPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.

      B. R. Forman for Plaintiff and Appellant:
    An agreement.in advance that a building shall bebuilt by the lowest bidder under sealed proposals is a valid agreement, rt is a contract with a suspensive condition and becomes perfect and complete with the lowest bidder when the lowest bid is received.
    Where the object of the contract is anything but the payment of money the damages due to the creditor for its breach are the amount of the loss he has sustained and the profit of which he has been deprived. C. 0.1934.

      E. Howard MoCaleb for Defendant and Appellee :
    1. When proposals are invited to construct a building or other work, and bids are made and sent in by contractors, they are submitted, as a matter of necessity, to the party who has asked for them, and unless he accepts the proposal of one of the bidders, or the lowest bidder’s bid, there can be no contract. R. O. 0., Arts. 1798,1800; Des Boulets vs. Gravier, 11ST. S. 420; iteDonough vs. Winchester, 1 La. 190.
    2. Where a contract is to be reduced to writing it is inchoate and incomplete until made and signed, up to which time either party may recant. Bloeker vs. Tillman, 4 La. 80; Fernandez vs. Soulié, 28 An. 31; Stockton vs. Firemen’s Ins. Co., 33 An 577.
    3. Damages for future profits are too uncertain and can not be recovered. Schlieder vs. Dielman, 44 An. 462; United States vs. Behan, 110 W. S. 339.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff sues to recover $4100 damages for alleged breach of contract.

The record discloses that the defendant obtained bids from three bidders to build a brewery in this city.

Plans and specifications were drawn by the architect and agent of the defendant.

The invitations for bids were made verbally.

The bid of plaintiff (and those of the others who also sought the contract) was in writing.

The plaintiff, in his bid, proposed to build the American Brewery, according to plans and specifications, for the sum of $41,000 and the material of the old buildings on the grounds, which old buildings were to be taken down by the bidder.

Another bidder proposed to erect the buildings according to plans and specifications and certain alterations.

In the third bid the non-conductor work is included, “such as will be specified by the architect.”

He, the architect, testifies that he also became a bidder for the firm of which he is a member, and that he, in the bid, proposed to build the plant complete for $52,000. His testimony in this particular is corroborated by the president and one of the directors of the company.

All the bids exclude the iron work except the last.

The estimated cost of the iron work is $12,930. This amount, added to the bids other than those of the architect, makes the amount of each over that of his bid.

He and two other witnesses testify that his bid was considerably less.

The dual capacity in which the architect acted, as architect and as bidder, does not cut any figure in the ease, for his bid was not accepted.

The bids as made do no not cover the same work in all respects; they do not follow the plans and specifications in all particulars.

No bid was accepted.

The company concluded to do its work under its superintendence and itself to construct the plant.

The architect testifies, and he is not contradicted, that the company changed and improved its plans and specifications after it was determined not to give out the contract, and that the brewery is larger and more valuable than it would have been under the original plans and specifications; that the outlay for the construction will be less by $8000 or $10,000.

Plaintiff’s demand for damages was rejected by the District Court.

From the judgment he appeals.

The president of the company testifies that he informed the plaintiff that the company would not bind itself absolutely to accept the lowest bid, but that if it concluded to let out the work by contract it would accept the lowest bid.

The plaintiff asserts positively that no reservation was made.

We will not attempt to adjust the variance in the testimony of the plaintiff and the president of the company, nor to reconcile the contradictions between the former and the architect respecting the terms of the bid.

It leaves the plaintiff without evidence maintaining the conditions which he contends were made part of his offer to construct the plant, and without sufficient testimony to establish that he was the lowest bidder for the work.

It is not shown that these bids were to be sealed; to be opened at a particular time.

The offers to contract must have been somewhat informally made.

It appears that before plaintiff handed in his bid changes were made with him in the specifications.

We copy upon the subject from the testimony:

Ques. “I understand that when you agreed, before you handed in your bid, that those specifications should be amended in the particulars you have mentioned.

“That you then agreed that if you were the lowest bidder you would get the job? ”

Ans. “Yes, sir.”

These changes do not add strength to plaintiff’s contention that he was the lowest bidder under specifications as submitted by a number of bidders.

Plaintiff himself does not seem to have relied exclusively upon the bid as binding on the defendant.

He testifies that the work was to be completed in five months from the time of the signing of the contract; that a contract was to be signed.

The contemplated written contract would have completed the bid and manifested the consent on the part of the defendant, which the record does not disclose.

Judgment affirmed at appellant’s costs.


author: Fenner, J.

text:
    No. 11,127.
    The State of Louisiana vs. David Underwood.
    1. Refusal of the judge to postpone a trial on the ground of absence of witnesses will not be disturbed in this court unless a motion for continuance has been made in writing and accompanied by proper affidavit, showing diligence, materiality and ability to produce witness if continuance is granted.
    2. When the verdict returned by the jury is defective and invalid, the court is authorized to instruct them again as to the form in which their verdict should be made, and to remand them for further deliberation.

      APPEAL from the Twenty-first District Court, Parish of St Charles. Rost, J.

      M. J. Cunningham, Attorney General, Gervais Leche, District Attorney, and J. L. Gaudet, for the State, Appellee.

      Jules Reine for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

The record presents two bills of exception. The first is taken to the action of the court in proceeding with the trial of the cause notwithstanding the defendant objected thereto on the ground that one of his witnesses was absent.

The record does not exhibit any motion or affidavit for continuance, and the judge in signing the bill affirmatively states that no such motion or affidavit was made.

This is fatal to the bill. It has been well and constantly held that refusals by the judge a quo to postpone a trial will not be reviewed in this court unless a motion for continuance has been made in writing, accompanied by a proper affidavit. State vs. Rountree, 32 An. 1144; State vs. Romero, 5 An. 25; State vs. Benjamin, 7 An. 47.

Not only must there be such motion and affidavit, but the latter must show the materiality of the evidence, the diligence of the mover and that the attendance of the witness can be had at the time to which continuance is asked. State vs. Duffy, 39 An. 419. State vs. Williams, 36 An. 854.

The second bill was taken to the action of the judge in permitting the jury to amend the verdict. The following is the statement of the judge: “ The jury handed in the indictment with the following verdict endorsed upon it: ‘ Guilty of capital punishment.’ The court, at the suggestion of the district attorney, that this verdict was defective, instructed the jury as to the form of the verdict which they should render if they found the prisoner guilty, or guilty without capital punishment; whereupon the jury retired to their room, and being brought again into court and called, returned, through their their foreman, a verdict of Guilty; ’ whereupon counsel for accused asked that the jury be polled, and every juror answered that that was his verdict. The court in no manner, directly or indirectly, dictated to the jury or influenced them in the rendering of the above verdict.”

The action of the judge was entirely proper, and is sustained by all the authorities; the first verdict being defective and senseless. State vs. Harris, 39 An. 1105; State vs. White, 35 An. 96; State vs. Gilkie, Id. 53; State vs. Dirch, 34 An. 1134; 1 Bish. Cr. Proc., Sec. 1004; Wharton Cr. Pl., Secs. 751, 754.

If the verdict had been valid and responsive a different rule would apply. State vs. Johnson, 30 An. 921; 1 Bish. Cr. Proc., Sec. 1004.

Judgment affirmed.


text:
    No. 11,070.
    State of Louisiana vs. V. Dielenschneider.
    The trade oí barber is a “mechanical pursuit” exempted from license taxation by Art. 206 of the Constitution.
    APPEAL from the First Oity Court of New Orleans. Childress, J.

      Edwin H. MeCaleb for Plaintiff and Appellant.

      Felix J. Dreyfous for Defendant and Appellee.
   The opinion of the court was delivered by

Fenner, J.

The Constitution of the State exempts from license taxation persons “ engaged in mechanical pursuits.”

Defendant is a barber, and the sole question is whether the trade of barber is a “mechanical pursuit,” within the meaning of the Constitution.

We think it is. The labor of a barber is manual; his work is mechanical. Hair cutting is as much a mechanical pursuit as wood cutting. See on the subject: City vs. Lagman, 43 An. 1180; Tax Collector vs. OConnors, 42 An. 787; City vs. Bailey, 35 An. 545.

Judgment affirmed.


author: Watkins, J.

text:
    No. 11,085.
    The State of Louisiana vs. Jean Dubarry.
    A city ordinance which declares that it shall not thereafter be lawful for any one to setup or establish a private market for the sale of meats, fish, vegetables, etc., without permission of the city council, is illegal and void, because the discretion vested by such an ordinance in the city council is; in no way, regulated or controlled, and prescribes no conditions upon which the permission shall be granted, leaving it within the power of the city council to grant or refuse the privilege, at pleasure.
    APPEAL from the First Recorder’s Court of New Orleans. Whitaker, J.
    E. A, O'Sullivan, City Attorney, and Thos. R, Rozier, Assistant City Attorney, for Plaintiff and Appellant:
    1. Ordinance 6600, O. S., is constitutional.
    2. Municipal corporations have the power to regulate markets and to pass such ordinances as are necessary for the preservation of public health and conduce to the public interest. State vs. Garibaldi, 44 An. —.
    3. Stare decisis.

      W, J. Waguespaek for Defendant and Appellant:
    1. An ordinance of a municipal corporation which punishes one class of individuals for doing that which under similar circumstances it permits to another class, and which, besides, clothes the council of the municipality with the arbitrary power to grant or refuse their consent to the establishment of a legitimate business, contravenes the fourteenth amendment to the.Constitution of the United States. Yick Wo vs. Hopkins, 118 U. S. 356; 6 Sup. Ct. E. 1069; State vs. Mahner, 43 An. 496; 9 South. E. 480; City of Baltimore vs. Eadecke, 49 Md. 217; Dillon’s Mun, Corp., See. 322 (256).
    2. Under the provision of Act 116 of 1888, the city council can pass no ordinance vesting themselves with power of prohibiting private markets within the populous parts of the city.
    3. The power to regulate private markets conferred upon the council by the Act of 1888 being general in its nature, and failing to specify the mode and manner of regulating an ordinance passed in pursuancé thereto, must be a reasonable exercise of the power, or it will be declared invalid. Billion’s Mun. Corp., Sec 328 (262) ; 13 Atlantic Reporter, 231; 16 Pick. 121,125; 33 Ill. 416; 45 N. J. B. 310.
    4. Whether an ordinance be or not reasonable is a question of law for the courts. Dillon’s Mun. Corp., Sec. 327; 3 Pick. 462; 16 Pick. 121.
    5. An ordinance of the council of New Orleans which, under the guise of regulating private markets, imposes conditions not only clearly unnecessary, but so difficult to be performed as to result in a prohibition of private markets in populous parts of the city, is unreasonable, ultra vires, and null and void. Act 116 of 1888; 14 Eng. and Am. Ency. of Baw, 462; 16 Pick. 121,125 .
   The opinion of the court was delivered by

Watkins, J.

The defendant prosecutes this appeal from a judgment and sentence imposed upon him for violation of city ordinance No. 6600, relative to the establishment of private markets in New Orleans.

In the recorder’s court, the defendant assigned illegality and unconstitutionality of the ordinance, on the following grounds, viz.:

1. That the ordinance contravenes the fourteenth amendment to the Constitution of the United States, in that it is not general and equal in its operation, and in that it grants to a majority of the members of the city council the arbitrary power to give or refuse their consent to carry on a legitimate business in any place.

“ 2. That it violates Act 116 of 1888, and the Constitution of the State of Louisiana, in that its terms empower the council of the city of New Orleans to prohibit private markets in the populous parts of the city, and to create a monopoly.

“ 3. Thatin so far as it compels the defendant to establish his private market in a building flagged, sixteen feet high and three and one-half feet from any dwelling, it is unreasonable, oppressive and ultra vires.” Defendant’s brief, p. 2.

The sections of the ordinance requiring interpretation read as follows, to-wit:

“ Section 1. Be it resolved, That hereafter it shall not be lawfu for any one to set up or establish a private market for the sale of meats, Ash, vegetables or other comestibles, except fruit, without permission of the city council, previously applied for by a written petition.

“ Sec. 2. That the private market building occupied for such purposes must have proper flagging and ventilation, said building to be not less than ten (10) by fifteen (15) feet in superficial area, sixteen (16) feet in height, and the sides of said building not less than three (3) feet six (6 inches from any dwelling, and said building shall not be less than 2100 feet from any public market.

“ Sec. 3. That no permit or license shall be issued for any private market until evidence that all the provisions of this ordinance have been complied with shall be produced.” Plaintiff’s brief pp. 2 and 3.

We think it too clear for argument that the ordinance is illegal and void, by reason of the provision contained in the first section, which makes the establishment of private markets thereafter to depend upon the applicant obtaining “permission of the city council.”

The doctrine announced in State vs. Mahner, 43 An. 496, is strictly applicable. In that case we said:

“The objectionable feature of the ordinance” — Ordinance No. 3414 governing and controlling the limits within which dairies might be established — “is contained in the first section. This section prescribes the limits within which dairies may be conducted, by permission of the city council, and it is made unlawful to keep more than two cows without a permit from the city council * * *

“ The ordinance is not general in its operation. It does not affect all citizens alike, who follow the same occupation, which it attempts to regulate. It is only those persons who keep more than two cows within the prohibited limits without the permission of the city council who are subject to the penalties of the ordinance.

The discretion vested by the ordinance in the city council is, in no way, regulated or controlled. There are no conditions prescribed upon which the permit may be granted. It is within the power of the city council to grant the privilege to some, to deny it to others.

11 The discretion vested in the council is purely arbitrary. It may be exercised in the interest of a favored few. It may be controlled by partisan considerations, and race prejudices,'or by personal animosities. It lays down no rules by which its impartial execution can be secured, or partiality and oppression prevented.”

The phraseology of Sec. 1 of Ordinance 6600, viz.: “without permission of the city council,” is almost identical with that of Sec. 1 of Ordinance No. 3414, viz.: “without a permit from the city council.”

Our decision in Mahner’s case was based on the opinion of the Supreme Court in Yick Wo vs. Hopkins, 118 U. S. 346, to which this case is conformable in every particular.

This objection, lying at the foundation of the < rdinance as it does, and appertaining to the condition precedent on which private markets can alone be, thereafter, established, being sustained, there is no occasion that other grounds of objection thereto should be discussed.

It is, therefore, ordered and decreed that the judgment and sentence appealed from be annulled and reversed, and it is now ordered and decreed that Sec. 1 of city ordinance No. 6600 be and the same is hereby declared illegal and void, and that the defendant be discharged from prosecution thereunder at the cost of the city.


author: McEnbry, J.

text:
    No. 11,128.
    The State of Louisiana vs. Frank Jones.
    It has been repeatedly held, on constitutional grounds, that the Supreme Court has no jurisdiction to review the facts submitted to a jury in a criminal case, so as to determine the correctness or incorrectness of the verdict.
    The Supreme Court can not take notice of any fact in a criminal case relating to the legal question presented, unless excepted to at the time and brought up in a bill,
    APPEAL from the Twenty-first District Court, Parish of St. Charles. Rost, J.

    JkT. J. Cunningham, Attorney General, for the State, Appellee.

      Hiddleston Kenner for Defendant and Appellant.
   The opinion of the court was delivered by

McEnbry, J.

The accused was convicted of horse stealing and sentenced. He appealed.

He complains of the overruling of his motion for a new trial.

The motion for a new trial alleged :

1. None of the State witnesses testified to having seen the accused actually steal the horse, or even that he was ever in St. Charles parish.

2. The accused swore that the. horses were given to him to sell, and this was uncontradicted either by parol !or circumstantial evidence.

8. The accused had no witnesses. Two of the witnesses were summoned but not found, and two others were not summoned, the clerk having failed to receive the notice requiring him to issue the subpoenas.

4. That the accused was confined in jail and .unrepresented by counsel, and was not, therefore, able to make a proper defence.

The first and second grounds are, in effect, a contention that he was convicted on insufficient evidence.

It has been repeatedly held, on constitutional grounds, that we have no jurisdiction to review the facts submitted to a jury in a criminal ease, so as to determine the correctness or incorrectness of their verdict. State vs. Polite, 33 An. 1016; State vs. Reilly, 37 An. 5; State vs. Sweeney, 37 An. 1; State vs. Perkins, 40 An. 210; State vs. Spooner, 41 An. 780; State vs. Deschamps, 42 An. 567; State vs. Green, 43 An. 402; State vs. Ware, 43 An. 400.

On the third ground the record does not show that the accused made an application for a continuance on account of absent witnesses for the defence. And on the fourth, it does not appear that he made any effort to obtain the assistance of counsel, or that he had made application to the court to appoint counsel for hiip.

There is no bill of exceptions showing any adverse ruling of the trial judge on these last defences.

In deciding any legal point presented we can consider no fact relating to the same unless embodied in a bill of exception.

Judgment affirmed.


author: McEnery, J.

text:
    No. 11,129.
    The State of Louisiana vs. Frank Jones.
    Same as in No. 11,128, State vs. Frank Jones.
    APPEAL from the Twenty-first District Oourt, Parish of St. Charles. Rost, J.

      M. J. Cunningham, Attorney General, for the State, Appellee.

      Hiddleston Kenner for Defendant and Appellant.
   The opinion of the court was delivered by

McEnery, J.

The accused was convicted and sentenced for horse stealing. He has appealed. The defences in this case are the same as those in the case No. 11,128, just decided against the same defendant.

Por the reason therein assigned the judgment is affirmed.


text:
    No. 11,130.
    The State of Louisiana vs. Frank Jones.
    Same as in oases 11,128,11,129, State vs same defendant.
    APPEAL from the Twenty-first District Court, Parish of St. Charles. Rost, J.

      M. J. Cunnvngham, Attorney General, for the State, Appellee.

      Hiddleston Kenner for Defendant and Appellant.
   The opinion of the court was delivered by

McEnery, J.

The defendant was convicted and sentenced for horse stealing. He has appealed. His defences are the same as in the case of State vs. same defendant, just decided, Nos. 11,128, 11,129, and for the reasons therein assigned, the judgment is affirmed.