author: Pociib, J.

text:
    No. 9960.
    The State of Louisiana vs. L. G. Labatut.
    A particular is not repealed by a general law, uuless they are so repugnant that they can not stand together under any circumstances,

      A grant of power conferred by the Legislature in the charter of a municipal corporation to pass and waforc© ordinances to suppress and punish the sale of adulterated drinks, is not recalled by a subsequent general statute providing for the prosecution of the same offense throughout the State. Hence, an ordinance of the city of New Orleans, adopted under a power to punish the sale of adultoiated drinks, and which punishes the adulteration of milk for sale, is not abrogated by Act No. 82 of 1882. which defines and punishes the adulteration of drugs, food and drinks.
    APPEAL from the Second Recorder’s Court of New Orleans. Burthe, J.

      MI. J. Gxmmingliam, Attorney General, and F. O. Zaeharie, for the State, Appellee.

      Ml. Voorhies, for Defendant, Appellant.
   Tlie opinion of the Court was delivered by

Pociib, J.

Defendant appeals from the sentence of the Recorder’s Court of the Second District of the city of New Orleans, condemning him to a fine of $25 or, in default of payment, to imprisonment of thirty days, for the violation of a city ordinance against the selling of adullerated milk.

Tiis ground of resistance is the alleged illegalli'ty and unconstitutionalily of the ordinance, and it presents the point that the same offense is made a misdemeanor under a State, law, namely, Act No. 82 of the Legislature of 1882, and that the effect of the statute and of Ihe ordinance co-existing is violative of (hat provision of Article 5 of the State Constitution, which forbids that any person he twice pul in jeopardy of life or liberty for the same offense.

As stated, this prosecution is exclusively for the violation of the city ordinance. Tt was adopted on tlic 24th of June, 1879, under the charter of the city of New Orleans of 1870, which contained ample delegation of power to make and enforce all regulations on the subject matter, and at a time when there was no statute of the Stale either defining or punishing the same offense.

It follows, therefore, that up to the passage of Act No. 82 of 1882, no possible doubt could have been entertained as to either the legality or constitutionality of the ordinance, which contained the only existing provision on the subject, in full accord with ample legislative authority in the premises.

Now, in the new charter of the city of Now Orleans, which is Act No. 20 of 1882, approved on the 23d of June of that year, the previous grant of legislative authority to the municipal council to make definite regulations on this subject, was not only confirmed, but it was extended and more specially emphasized. Under that charter, the Council is vested with full power, and charged with the duty to pass such ordinances and to see to their faithful execution, as may be necessary and proper, * i: * to prevent the sale of adulterated or decayed food, and punish the same; to punish the sale of adulterated drinks.” * *

It is clear, therefore, that instead of being in the least impaired by the effect of the charter of 1882, the ordinance under discussion received additional force and vitality therefrom.

Now, it is true, that the same offense is provided for in act No. 82, approved on the 5th of July, 1882, which is entitled an aet “to define, and punish adulteration of drugs, food and drink,” * * * and which proposes to punish all offenders by a fine of fifty dollars for the first offense, and of one hundred dollars for each subsequent-offense.

The question presented by the case is. therefore, to consider the effect of Aet 82, on the powers delegated to the city under Act No. 20 of 1882, and incidentally on the city ordinances of June 24, 1879.

It must be noted, in the first place, that Aet 82 of 1882, contains no repealing clause; in the second place, that it is a general statute; and in the third place, that Aet No. 20 of 1882, known as the charter of. the city of New Orleans is a particular or special law. Under the jurisprudence firmly established in this State, a general law thus characterized does not repeal a particular law unless they he so repugnant that they cannot stand together under any circumstances. DeArmas’ case 10 M. 172; State vs. Kitty, 12 Ann. 805; Bendonn vs. Barbin, 13 Ann. 458; St. Martin vs. New Orleans, 14 Ann. 113; State vs. Natal, et. al., 39 Ann., not yet reported.

The legislative intent as gathered from the general tenor, the subject matter, and the mischief to be remedied bs^ the'two enactments respectively, is the safest test of the effect of the new, upon the old, law.

The leading object of the statute is to protect and promote public health throughout the State, and the manifest purpose of delegation of power in the charter of 1882, is to reach the same object in the city of New Orleans through the direct action of the Council.

It will be conceded without the necessity of an argument to support the proposition, that the sale of milk generally, in a large city is by far in excess than in any other locality of the State, and that, therefore, the probabilities of adulterating milk are proportionally greater there than in any other locality in the State; from which it follows that precautions against the evil must be more guarded and more closely exercised in a largo citv than in any other community;

These considerations were, beyond a doubt, the motives which prompted the Legislature to confer to the City Couucil the ample powers which are contained and detailed in section 7 of Act 20 Of 1882, on the subject of adulterated food and drinks, and which so completely sanction and so absolutely legalize the provisions of the ordinance of June 24, 1879.

Having thus and so clearly and so wisely delegated to the municipal authorities of the city of New Orleans the express power to legislate upon a subject so peculiarly within the province of a municipal government, the law makers of Louisiana are surely not amenable to the violent presumption that, at the same session of the Legislature, nay one week later, they would deliberately destroy their labors in that direction by an enactment which recalls the recently delegated authority. We feel confident that they had no such intention, and hence we hold that the legal existence and the binding force of the ordinance of June 24, 1879, which was clearly authorized by the charter of 1870, under which it was adopted, and legally reinforced under the charter of 1882, has not been recalled, annulled, or in the least impaired by the passage of Act 82 of 1882, and that therefore the recorder’s court is vested with power to enforce the same by fine or imprisonment. Under these views we are not called to further define the effect of the statute, of 1882; or to decide whether it applies to the city of New Orleans. That question can properly come up only in a prosecution under that act.

That consideration is also an answer to defendant’s argument that the co-existence of a statute cf the State and of a city ordinance both defining and punishing the same offense exposes offenders to be. twice put in jeopardy for the same offense.

Thus far he has been prosecuted but once, and solely for the violation of the city ordinance! If he should hereafter be piosecuted in the State court for violation of the statute, his plea of autrefois convict, coupled with the allegation of the illegality of the statute as applied within the limits of the city of New Orleans, will properly present the question which will then be decided.

Ilis right to relief at our hands in the instant case turned upon the alleged nullity of the city ordinance, and our conclusion that the ordinance. is yet in full force, is a complete disposition of the controversy as presented to us in its present shape.

The judgment appealed fr.om is therefore affirmed with costs.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 9849.
    Mrs. C. C. Gerrish vs. John H. Pope.
    In a proceeding by rule to enforce the provisions of a judgment rendered in a partition proceeding, and to compel the completion of an adjudication of property-which entered into the partition proceeding and judgment, which judgment has become final, this judgment cannot he changed, altered or amended by the judgment on the rule. It constitutes rea adjudicata.

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

      W. 8. Benedict for Plaintiff and Appellee.

      Olías. 8. Mee for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

On the 3d of May, 1882, the plaintiff as the universal legatee of Mrs. Renette W. Pope, the deceased wife of John H. Pope, defendant, instituted an action of partition against the latter.

She alleged in substance that the defendant claimed certain rights in the real estate bequeathed to her by the will of the deceased. She prayed for a partition of the estate, and that the rights of all parties therein be fixed by the court and that the parties be referred to a notary to complete the partition.

About the same time the deiendantPope also filed a suit for a partition. He averred in substance that the deceased has bequeathed him her interest in a drug store, known as Pope’s Drug Store, then in his possession on Magazine street in this city.

He further averred that there was a certain square of ground situated in Bloomingdale, Sixth District of New Orleans, designated as square 14, which had been bequeathed to the plaintiff, the title to which, though it stood in the name of his deceased wife, had been paid for by the community, to the amount of $2500, and had been improved at the expense of the community to the extent of $4250.

He further represented that there were community debts to the amount of about $3000, among them one of $2000, secured by a mortgage on the drug store.

He prayed to be recognized as a creditor of the community for $4250 and for judgment against the plaintiff for one-half that sum, that the real estate be sold to pay said sum as well as all other debts of the community, and the surplus, if any, to be divided between himself and the plaintiff.

By agreement, these two partition suits were consolidated — the petitiou in the suit brought by the defendant Pope to serve as the answer to the one instituted by the plaintiff.

After the pleadings were thus made up, the following agreement was entered into between the parties, to wit:

“ It is agreed between the parties as follows: The defendant shall put bach into the premises, in square bounded by Magazine, State, Webster and Laurel streets, the furniture removed by him therefrom (or account for such portion as cannot be returned.)

“ The plaintiff and her husband shall have privilege of renting said premises and contents from the civil sheriff, at the rate of ten dollars X>er mouth, for the one undivided half interest thereof, x>ending claim of defendant for interest therein.

“The plaintiff and her husband do hereby relinquish any and all claim against the xiroxierty known as the drug store, No. 708 Magazine street, between First and Second streets, known as Pope’s Drug Store, and contents, including movables and immovables. All other questions in controversy left open.”

There was a x>rotracted contest, resulting iu a judgment on the 16th of June, 1884.

This judgment reads as follows :

“ For the reasons orally assigned, it is ordered, adjudged and decreed that there be judgment in favor of the plaintiff, Mrs. Caroline C. Gerrish, and against the defendant, John II. Pope, decreeing said plaintiff to be the true and lawful owner of the premises in Bloomingdale, described in the petition, subject to the rights against said property acquired and now held by the community of acquets and gains lately existing between the defendant, John H. Pope, and his deceased wife, Renette W. Pope, growing out of the imx>rovements made by said community on said property.

“It is further ordered, adjudged and decreed that there be judgment .in favor of the plaintiff, Mrs, Caroline C. Gerrish, and against defendant, John H. Pope, decreeing a partition of the succession of the late Renette W. Pope; that, in order to determine the lights of the late community of acquets and gains against the property described in the petition, it is ordered, adjudged and decreed that the said property be sold by the civil sheriff of the x>arisli of Orleans, at ]iublic auction, after the usual delays and advertisements, for cash; that the said property be appraised, by V. 1. Lambert and Chas. Parent, in block, including improvements — said appraisements to serve as the basis of the sale; that the said ai>praisers also appraise said property separate from the improvements, the last appraisement to serve as a basis for distribution; that the value of the improvements be recognized as belonging to the community of acquets and gains lately existing between John H. Pope and his deceased wife, Uenette W. Pope, and the said coimmmity is declared to be a creditor of the said property described in the petition for the value of said improvements; that the said community is declared to be a creditor of the said property in the sum of ($2280) two thousand two hundred and fifty dollars, money advanced lor the purchase price.

“ It is further ordered, adjudged and decreed that the plaintiff, Mrs. Caroline C. G-errish, be recognized as the owner of one-half of the said community of acquets and gains, after the payment of all debts and liabilities.

“It is further ordered, adjudged and decreed that the defendant, John H. Pope, account to the community of acquets and gains for the value.of the furniture and other effects described in Document X, p. 228, hitherto attached and made part hereof.

“It is further ordered, adjudged and decreed that out of the proceeds of the property described in the petition coming to the community of acquets and gains, the community debts to be paid, to wit:

“ The sum of $2000, with interest, now secured by a mortgage on the property known as Pope’s drug store; the sum of $86.50 to T. W. Botliick; $32.68 to E. J. Hart & Co.; Dr. J. C. Bickham, $88; I. L. Lyons & Co., $96.68: R. Finlay & Co., $148.19; De Lanzae & Calm, $194.83; Dr. John Carter, $20; that the parties litigant be referred to W. J. Castell, Esq., notary public, to make a distribution of the partition sale, and that the costs be divided equally between the parties.”

From this judgment neither party appealed, and the time foi an appeal passed and the judgment became irrevocable.

An appraisement was made in conformity to the judgment — that is, the land and the improvements thereon were separately appraised, each at $4000, making a total of $8000; and the property was adjudicated to the plaintiff for $7500.

On the 4th of May, 1855, Pope took a rule on the plaintiff to show canse why she should not comply with the adjudication, and a judgment was rendered on the rule directing a notary named “to make a partition of the succession as directed by tbe judgment rendered.”

On 18th of December following, the notary fded his report, showing that he had prepared an act ór projet for the. partition and distribution - —that Pope had signed the same, hut that Mrs. Gerrish had filed objections thereto, which he made a part of his report; which objections need not here be specifically set forth.

On January, 1886, Pope took another rule on the plaintiff to show cause why she should not comply with the adjudication, and sign and execute the act of distribution prepared by the notary, and in default thereof why the property should not be sold á la folie enchere.

The jdaintiff answered this rule by setting out at length the objections she had made to the act for partition and distribution prepared by the notary and which she had refused to sign.

During the progress of the trial the plaintiff, Mrs. Gerrish, defendant in the rule, offered evidence to support the averments of her answer, when she was met by the objection substantially, that the matters songht to be proved were all concluded by the judgment rendered in the partition suit in June, 1884, and that the judgment constituted res adjudícala. This objection was overruled and the evidence admitted and judgment on the rule rendered as follows:

“ For the reasons dictated to the stenographer and now on file—

“It is ordered, adjudged and decreed that the exception of res adjudicata, filed by the defendant to the opposition of Mrs. C. C. Gerrish to the proces verbal of distribution filed by the notary, December 18, 1885, be overruled; and it is further ordered, adjudged and decreed that the opposition of Mrs. C. C. Gerrish to the proces verbal be maintained, and that the notary be directed to amend the proces verbal by charging the defendant, John H. Pope, with all debts due by the Pope drug store, at the decease of Renette W. Pope, that is to say, on the 2d of April, 1882, and particularly with the debt of $2000, with interest, secured by mortgage on said property; the sum of $32.68, due by the drug store to E. J. Hart & Co.; $66.68 due by drug store to I. L. Lyons & Co.; $148.19 to R. Finlay & Co.; the sum of $194.83, due by the drug store to De Lanzac & Cahn.

“ It is further ordered that the notary amend his proces verbal by charging to Mrs. C. C. Gerrish, plaintiff herein, any debts due by the separate estate of Renette W. Pope; and that the proces verbal herein be referred to Boussiere Rouen, Esq., notary public, in place of J. J. Woulfe, no longer a notary; and that said Boussiere Rouen, Esq., be commanded to complete the proces verbal, now before the court, in accordance with the amendments directed by this judgment.”

This is the judgment that is before us for review, and this long-recital we have deemed essential to a clear understanding and determination of the issue raised by this plea of res adjudícala. This recital of itself plainly tends to the conclusion that the judge a quo in ruling on this point was in error.

This appears more clearly when we compare the judgment rendered, in the particular suit with that rendered on the rule referred to, together with the pleadings in the two proceedings.

The matters adjudicated upon in the first judgment of 16th of June, 1884, are substantially these :

1. Recognizing Mrs. Gerrish, plaintiff, the owner of Bloomingdale property known as square 14.

2. Decreeing that the value of the improvements thereon belonged to the community, and declaring the community creditor therefor, and also a creditor for $2250, for money advanced by the community to pay the price of the property.

3. Ordering the sale of this Bloomingdale property after separate appraisements of the land and of the improvements.

4. Recognizing Mrs. Gerrish as the owner of one-half the community after payment of its debts.

5. Requiring Pope to account to the community for certain furniture he had disposed of.

6. That out of the proceeds of the community property described in the petition the community debts be paid. The debts being mentioned as the $2000 mortgage on the drug store, and many others for smaller amounts.

7. Referring the parties to a notary who was directed to make a distribution of the proceeds of the partition sale.

The judgment rendered on the rule on the 26th of November, 1884.

This judgment decreed substantially:

1. That the plea of res adjudícala be overruled.

2. That the opposition of Mrs. Gerrish to the act of partition and distribution prepared by the notary (termed a proses verbal in the judgment) be maintained.

3. That Pope be charged with all the debts due by the Pope’s Drug Store. (The debts being mentioned and being the same as were ordered in the piece judgment to be paid out of the proceeds of sale of the community property.)

4. That the proses verbal of the notary be amended by charging Mrs. Gerrish with the debts due by the separate estate of the testatrix, (Mrs. Pope.)

5. By naming a notary and requiring him to complete the proces verbal in accordance with this judgment.

It will plainly appear from this comparison of the two judgments that they differ in several essential particulars. In fact, it is obvious that the court a qua instead of dismissing the rule or rendering a judginenfc thereon to enforce the provisions of the judgment in the partition suit, for which purpose the rule was instituted, rendered an entirely new judgment oí partition.

Eor instance, as shown, the debts due by the drug store, which were enumerated in both judgments, and in the first were required to be paid out. of the community property, in the last judgment on the rule were charged to the defendant l’ope, or to the drug store.

This judgment also maintained the opposition of the plaintiff lo ihe process verbal or act of paitition prepared by the notary, which opposition, it appears, is in striking conflict with the judgment of partition.

It would moreover appear from the reasons assigned for judgment which are in the record, that the judge regarded this proceeding by rule as an act of partition ; in fact, he so terms, and in his entire opinion lie makes no mention of any rule.

The judgment rendered in the original partition suit on the II tli of June, 1884, settled all matters of controversy between the parties relating to the partition and the settlement of the community, between Pope and the plaintiff, the legal representative of his deceased wife. It was res adjudieata, and this plea should have been maintained a.s to all matters pertaining to or embraced in said judgment or in the pleadings pertaining thereto.

It further appears that the plaintiff, Mrs. Gerrish, paid only $500 of tile $7500, the price at which the property was adjudicated to her. She has shown no reason why the same should not be completed.

We have likewise examined critically the act of partition prepared by the notary to carry out the judgment of the 11th of June, 1884, and we discover no reason why she should not sign it, since it conforms to the terms of the judgment.

It is, therefore, ordered, adjudged and decreed that the judgment of tli© lower court be annulled, avoided and reversed, and the rule in the ease be and the same is now made absolute, and that Mrs. C. C. Gerrish, plaintiff herein and defendant in the rule, be and she is hereby decreed to complete the adjudication of the property described in the pleadings as square 14, and designated as the Bloomiugdale property, by paying the balance of tiie price bid for the same, and that sheexecutet.be provisions of the judgment, rendered on the lltli of June, 1884, relative to the partition' of the property and distribution of the funds, and sign the act of partition and distribution piepared under said judgment, reported and filed on the 18th of December, 1885, and that Mrs. Gerrish pay the costs of both courts.


author: Fenner, J.

text:
    No. 9925.
    S. W. Davis vs. Citizens’ Bank of Louisiana and Sheriff. S. W. Davis vs. Adams & Cockburn and Sheriff. Citizens’ Bank of Louisiana vs. Thomas B. Rhodes.—S. W. Davis, Third Opponent. Adams & Cockburn vs. Rhodes, Sweet & Co.—S. W. Davis, Third Opponent. Thomas B. Rhodes vs. Chas. E. Black, S. W, Davis et al.
    (Five Consolidated Cases.)
    If. prior to a judicial sale, in enforcement of a first mortgage and vendor’s privilege ranking all others on the property, an agreement is made between the seizing creditor and debtor, that the former will bid off the property if nob run up above the amount of his debt; and that, in such ease, he will resell to the debtor, or any one named by him, at an agreed price, within a delay fixed, such an agreement is lawful and does not prevent the title under such sale from actually passing to the purchaser, subject to the right of redemption, and it extinguishes all mortgages on the property ; and judicial mortgages will not reattach to the property unless it is returned to the ownership of the debtor.
    When, in such case, the property is resold to a third person named by the debtor, for a price actually paid by such purchaser, the fact that, in a contemporaneous writing, it had been agreed between this purchaser and the original owner that the former would resell to the latter or any person designated by him, on terms and conditions therein stipulated, does not prevent the purchaser from becoming the real owner, subject only to the right of redemption on the terms agreed. Therefore, judicial mortgages against the original owner did not attach to the property in the ownership of such purchaser.
    When, subsequently, the original owner ceded his right of redemption to another, and the purchaser, with the consent of such former owner, sells the property outright,to the person so designated, for a price partly paid in cash and the balance in a note secured by mortgage, without reserve of any right, of redemption expressed in the deed or in any writing whatever, neither the original owner nor his creditors can attack such title or mortgage except on grounds of fraud, which are not established in this case.
    APPEAL from the Eighth District Court for the Parish of East Carroll. Tlelowy, J.

      J. M. Kennedy and W. <?. Wyly for S. W. Davis and C. E. Black.

      Farrar <& Kruttselmitt on the same side.

      Henry O. Miller for the Citizens’ Bank.

      J. W. Montgomery for Adams & Cocklrarn.
   The. opinion of the Court was delivered by

Fenner, J.

The. Citizens’ Bank and Adams & CoekMrn, being judgment creditors of Thomas B. Rhodes, issued writs of fi.fa., and seized thereunder the Airlie plantation with the movable effects thereon.

T’i>e first two suits above enumerated are injunction proceedings against said seizures of Airlie plantation by S. W. Davis, who claims to be the owner thereof.

The two following cases present issues raised on third oppositions, filed by S. W. Davis, who claims to be the lessor of Rhodes and, as such, to have a lien and preference on the movables seized, over the seizing creditors.

In the meantime, Charles E. Black, a mortgage creditor of S. W. Davis, had seized “Airlie’’under executory process, and the last named case is an injunction proceeding against that seizure taken out by T. B. Rhodes, who denies Davis’ ownership of the plantation and his right to mortgage, and claims that he, Rhodes, is and has always been the owner.

The leading question involved is the ownership of “Airlee,” and that hinges on the construction and effect to be given to various contracts and agreements touching the title to said plantation.

T. B. Rhodes bought the “Airlee” plantation in 1869, on terms of part cash and balance in notes secured by mortgage and vendor’s lien.

W. W. Carson, a non-resident of the State, became the owner of these notes.

In 1874, Carson obtained judgment by confession against Rhodes on one of these notes, with stay of execution until December 1st of that year. Carson wanted his money and- did not want the plantation.

Rhodes wanted the plantation, but had no money. On the contrary, he was insolvent. He not only owed the large debt to Carson, but he also owed Adams & Cockburn $3303, besides interest, on which judgment was recovered in 1875, and recorded as a judicial mortgage on Airlee; he owed the Citizens’ Bank $12,000, besides .interest, on which judgment was afterwards recovered in 1877 and recorded; and he owed Graham, Black & Co. $4894, with what other debts we know not.

Both parties were satisfied, and the result makes it certain that, if the plantation was sold under Carson’s judgment, it would not bring the amount of his claim and that he could only save himself by buying in the property, which he was exceedingly averse to doing. Still he was unwilling to extend his debt without, at least, partial payment of which he was in need.

Rhodes, on the contrary, set great value on the plantation and believed that, if he could effect any arrangement by which he could retain the management of the plantation, he could make it yield a revenue sufficient to pay off, not only Carson’s debt, but Ms other creditors.

Under these circumstances, it was agreed between the parties that Carson should issue execution on his judgment; that if there were no other bidder at the cash offering he would not bid; and that, at the second offering on twelve months’ credit, he would bid off the property, if it were not run up above his debt. He further agreed that he, would sell the place back to Rhodes or to any person whom Rhodes might designate, at any time within thirty days after the sale, provided he, Carson, were paid @3000 in cash, and the balance in annual installments of @4000, properly secured, up to the amount of his entire debt.

Accordingly, execution was issued; the place, was seized and Rhodes was appointed sheriff’s keeper; the cash offering failed for want of bidders; there were no bidders at the credit offering; and the place was adjudicated to Carson at the price of one thousand dollars.

The thirty days allowed to Rhodes, within which he had the right to claim a resale under the terms of the agreement, expired without the exercise of this right; but some days later, viz: on June 24,1876; Rhodes presented Charles E. Black as a purchaser, and Carson executed a conveyance of the properly to Black for the price of $16,867.87, of which $3000 was paid in cash, and the balance on terms conforming to the agreement, secured by mortgage and vendor’s lien. Rhodes intervened in the act aud declared “that he does hereby assent to all the clauses of this deed, and hereby releases unto said Black all and any right he may have in and to said land.”

Prior to the execution of this conveyance, a written agreement had been entered into between Black and Rhodes, too lengthy to be copied here, but the substance of which was that Black should buy from Carson, on the terms stipulated; that Rhodes should take charge of and manage the place, without salary, making all contracts, rent notes, etc., in favor of Black; that Black was to receive the whole of the revenues, which were guaranteed not to fall beneath a sum fixed, under penalty of termination of Rhodes’ rights; and that “when the revenues realized by said Black from said plantation shall have equalled the aforesaid sum of $16,687.67, with interest, together with the sum of $4984 now due by said Rhodes to Graham, Black & Co., with interest, and any other amount that said Rhodes may become indebted to said Black or said Graham, Black & Co., then the said Black shall sell, transfer and convey unto said Rhodes or any one he may designate, all of said plantation, etc.; said Black to convey only such title as he shall acquire from said Carson ” — and further binding himself not to sell, encumber or mortgage the property to the prejudice of this agreement. Under this contract Rhodes proceeded to operate the plantation.

On January 15, 1878, Rhodes, having become indebted to S. W. Davis, executed a sale of all liis rights under the contract with Black to Davis, authorizing him to pay and discharge the claim of Black and to demand the conveyance of the property, if he should desire so to do. A counter-letter was executed, however, explaining that the sale or act of subrogation just mentioned was intended as a security for a loan of $2500, then made, and for a past due indebtedness of $5600, owing by Rhodes to Davis. This counter-letter was not recorded and was not communicated to Black.

In February, 1880, Davis, armed with the transfer and subrogation from Rhodes, negotiated and obtained from Black a sale of the plantation at a price fixed at $28,812, which represented the entire amount expended by Black, of which sum it was stated that $10,445 had been repaid to him out of the revenues of the plantation; the further sum of $13,281 was paid in cash by Davis, and, for the balance of $5086 Davis gave his note secured by mortgage and vendor’s lien on the property.

Rhodes intervened in the act to take cognizance of it, and to declare that Black had fully acquitted all his obligations under his contract with Rhodes.

Thor? is no counter-letter or written agreement of any kind between Rhodes and Davis affecting in any manner the latter’s title, and we do not. see how Rhodes can dispute it. There is evidence to show that at the. time of Black’s sale to Davis, it was contemplated, that John Ohaffe & Sons should buy the place from Davis and give to Rhodes a right, of redemption on terms similar to those which had been made by Black; and such an act had been prepared by the notary. But it, was never executed. Chaife & Sons testify that, they had never agreed to enter into such a contract; and, though Rhodes swears that, Davis had bound himself to procure such a contract from Ohaffe & Sons, and that this was the condition upon which lie received the title, his testimony is unsupported and his charge, of such fraud against Davis is silenced by his subsequent conduct by which, in various ways, he recognized Davis’ ownership.

Adams & Cockbnrn and the Citizens’ Bank allege and contend that the shifting of Rhodes’ title, first to Carson and then to Black, was a mere paper transaction and a simulation, intended to defeat Rhodes’ creditors; that there was no actual seizure under .Carson’s execution, and that his purchase purported to be for only $1000; that, the sheriff’s sale divested Rhodes of neither ownership nor possession ; that Carson’s debt was not paid or settled thereby; that no money was paid by him for the property, nor was his execution, or debt actually credited with his bid, but, on the contrary, he still held the jiotes which he was pretending to collect of Rhodes, which were after-wards paid for Rhodes by Black; that this shifting of title and apparent change of ownership was part and parcel of au agreement and prearranged scheme for the purpose of baffling Rhodes’ creditors; that Carson never went into possession under his title, nor did Black; that Rhodes remained in possession as owner, made and shipped his crops and generally acted as owner ; that it was never intended that Black should become the owner, and that his nominal title was simply a form of security for his debt and for advances to Rhodes, and that mode of security was adopted for the purpose of defrauding Rhodes’ creditors; that Davis, when betook the title from Black, well knew its defects and fraud, and, by his purchase, endeavored to further said fraud.”

We fail utterly to discover any facts proven or principle of law co sustain these pretensions.

There is no dispute that Carson held a claim amounting to $16,867, secured by special mortgage and vendor’s privilege upon the plantation, which ranked all other creditors of Rhodes. Hence, such creditors had no possible claim on this property until this debt was paid; and a judicial sale for its enforcement conveyed the property free from their claims.

Although some persons entertained a higher idea of its value, there is no proof that there was any one willing to pay more than Carson’s debt for the property. At all events, the property, after all legal advertisements, was twice exposed at public sale, first for cash and then on credit; and if these creditors or any other person had bid the' amount of Carson’s claim, the T>roperty would have been adjudicated to them. But neither they nor other bidder appeared at these, sales.

There was no consilium frailáis, because there was no occasion or motive for fraud; there was no enentus dmrni, because the public sale affords legal proof that the property would not command a price sufficient to leave, any surplus for these ci’oditors.

The whole transaction was perfectly legitimate. Carson did no more than he had the legal right to do in executing his judgment and in bidding in the property. He had an equal right to make the contract with Rhodes to reconvey, on compliance with the terms and conditions stipulated.

The adjudication undoubtedly conveyed the ownership to Carson, subject to his obligation to reconvey on compliance with those conditions within the delay stipulated. Rhodes was in possession as slier iff’s keeper, and his possession continued in that capacity until terminated by delivery to the purchaser. The sale to Black rendered the, delivery to Carson unnecessary, and, afier that sale, the continued possession of Rhodes was the, possession of Black, under the. terms of the contract between them. Therefore, the possession of Rhodes loses all significance as an indie,mm of simulation.

It is perfectly clear that the sale to Carson divested Rhodes’ ownership and ousted all inferior mortgages on the property. Judicial mortgages, prior or subsequent, against Rhodes, could never afterward attach to the property, unless it returned to the ownership of Rhodes.

It is contended that such return was operated by the transfer from Carson to Black, and the agreement between Rhodes and Black; that the real ownership was thereby transferred to Rhodes, and that Black held the title merely as a figurative or hypothecary security for debts due to him, and advances made by him for Rhodes’ accouut.

We have, heretofore, recited at length the terms of the contract between Rhodes and Black, without finding in it a single feature supporting such a construction of it.

It is the, plainest possible case of a perfect and complete sale from Carson to Black, containing all the, essential elements of the thing sold, the price and the consent; and the contract between Rhodes and Black merely engrafts upon it a right of redemption in favor of the former on the terms stated.

There is no feature' of simulation about the transaction ; no dispute that Black actually paid the cash part of the price, and was bound to pay the balance irrespective of the results of his contract with Rhodes for the working of the plantation.

Treating this as a vente á réméré, from which it differs because the right of redemption is stipulated, not in favor of the vendor, but of a third person, it is clear that the ownership passed from Carson to Black, and, quoting our language in a recent case, “ from the moment of the execution of the act, the vendee becomes the master of the property, his title subject to be divested only by the exercise of the right to redeem, and unless that right is exercised within the term stipulated, he remains absolute owner of the property.” Jackson vs. Lemle, 35 Ann. 856; Levy vs. Ward, 32 Ann. 784; Duranton, Cours de Droit, vol. 16; Secs. 388, 389, 390; Dalloz, Vente, No. 825; 2 Troplong, Nos. 692, et seq.

Rhodes has never exercised his right of redemption. He ceded that right to Davis. He was a party lo the act by which Black conveyed the property to Davis in absolute ownership and for a valuable consi deration. He has no counter-letter or written evidence of any kind contradicting or limiting the title convoyéd to Davis and confirmed by him.

He cannot dispute his own declarations in this authentic act. The alleged fraud, as we have heretofore stated, is not proved, his oral testimony being contradicted by other witnesses and by his own subsequent conduct and writings.

He pretends that there was an agreement to which Davis, Chaffe &. Rons and himself were parties, and of which Black was cognizant, that simultaneously with the conveyance from Black to Davis, another conveyance ivas to be executed from Davis to Chaffe & Sons with a right of redemption reserved to Rhodes.

Black swears that he never knew of any such agreement. The various members of the firm of Chaffe & Sons swear they never made any such agreement. Davis died before, Rhodes’examination as a witness was completed, and, therefore, had no opportunity of contradicting it. If it were true, as stated by Rhodes, that Davis had practiced the fraud charged, it is inconceivable that he should not at once have, denounced it and demanded the cancellation of the transaction. But he complained of it to nobody, and took no steps to cancel it. On the contrary, he recognized Davis’ ownership in every way, took rent notes of the tenants in Davis’ name, represented Davis as the owner m written applications to merchants for advances, and to Shattuok & Hoffman whom he desired to purchase the plantation from Davis on terms securing him a new right of redemption.

Tt is undoubtedly true that Davis w'as willing to sell to John Chaffe & Sons on the terms proposed in the contract prepared, but they'refused to accept such a sale. We are satisfied that Davis continued willing to sell, on tins same terms, to any other responsible purchaser whom Rhodes could find, and Rhodes tried to find such purchaser, but in vain. He has never found any. The attempt of Rhodes and his creditors to disregard Davis’ title, under these circumstances, cannot be countenanced

These view's dispose of the claims of the Citizens’ Bank and of Adams & Cockburn to subject Airlie plantation to their judgments against Rhodes, and of the claim of Rhodes to annul Davis’ title, and to defeat Black’s mortgage.

The interventions of Davis, claiming a lessor’s privilege on the movables of Rhodes on the plantation seized, arc overruled for the reasons given in the case of Davis vs. Rhodes, decided this day,

Although, in some, respects, the judgment appealed from is not erroneous, yet, for convenience, we shall reverse it and give such judgment, as should have been rendered.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is annulled, avoided and reversed, and it is now ordered, adjudged and decreed :

1st. That in suits Nos. 215 and 216 of the district court there bo judgments in favor of plaintiff, S. W. Davis against the defendants, the Citizens’ Bank of Louisiana and Jolm D. Adams, perpetuating the injunctions therein issued, said defendants to pay costs in both courts.

2d. That in cases Nos. 217 and 218 of the district court there he judgment against the defendant, overruling and rejecting his third oppositions therein, at his cost in both courts.

3d. That in case No. 227 of the district court there he judgment in favor of defendants and against the plaintiff, rejecting the latter’s demand, at his cost in both courts.


author: Watkins, J.

text:
    No. 9884.
    The State ex rel. Bradish Johnson et al. vs. State Tax Collector et al., of the Parish of Plaquemines.
    It is permissible for a number of taxpayers, claiming to have a common interest in the enforcement of an ordinance of the police jury, enacted from motives of public policy, for the reduction of tax assessments, to unite in one suit, seeking like relief, from same injury and upon the same grounds.
    Section 24 of Act 96, of 1882, does not create a board of equalization in the sense of Article 203 of the Constitution, but delegates to tbe board of revisors created by Section 24 oí that act, amongst others, the power to correct assessments illegally or wrongfully made, in the listmg or valuation thereof; and the power to equalize assessments of all properties of like character and relative value within their parish.
    For this purpose said board is empowered to summon ami examine witnesses with regard to the value and character of tbe properties assessed j and upon the evidence to determine the correctness of the listing and valuation thereof.
    The police jury, acting as a board of reviewers, cannot, by ordinance, reduce the percentage. of the assessment for the year, by wards, or otherwise. They can levy such a certain ■percentum on the total assessment as, in their view, may be necessary to defray the parochial expenses ? but they cannot reduce to the standard of parochial necessities.
    Such revision, correction, arbitration or equalization as tbe board of reviewers may make of assessments, are subject to review by the courts, and their action is final, unless •“ sot aside or changed, as provided by law.'1
    APPEAL from the Twenty-fourth District Court for the Parish of Plaquemines. Livaudais, J.

      Zaoharie & Howard for Relators and Appellants :
    1. The clause of Sec. 24, Act 96 of 1882, speaking of police juries, and providing “they shall also equalize the assessments of all properties of like character and relative value within their respective parishes in accordance with Article 203 of the Constitution,” introduces the new feature of a Board oí’ Equalization in our tax laws, which, though anticipated in our Constitution, has never been before carried into effect by the General Assembly.
    2. In the absence of statutory provisions for its jurisdiction, and exercise and effect of its decisions, in our own statute we must look for its interpretation, in these respects, to the systems of other States having tax systems similar to our own, from which wo have borrowed the new feature 16 L. 394 -, 30 Giatt. 477.
    3 The powers of a mere hoard of review can only be exercised for correction of errors in individual assessments, alter the return of the sworn list of the taxpayer and on duo application made, and when refused, an appeal to the courts can only he had on proof of the exhaustion of those preliminary remedies; a resort to those remedies is an indispensable condition precedent to relief in the courts to correct errors of assessments.
    4. Boards of review increase or diminish individual assessments; are obliged to hear evidence thereon; can add omitted property to the lists; and arbitrate between the individual taxpayer and the assessor; their decisions are not final; they deal with the taxpayer in his individual capacity.
    5. Boards of equalization act from motives of public policy, deal with the taxpayers en wcm-c, and are especially designed to carry out the principle of uniformity and equality in taxation, by comparison “of relative value of property in the different portions of the State.” Constitution, Art. 203. The powers of review and equalization are distinct, and the rules governing their exercise are also separate and distinct, although in some States, as in our own, both functions are exercised by a single hoard. Burroughs on Taxation, § 101.
    6. Boards of equalization, unlike boards of review, cannot add omitted valuations to the tax list; their powers are limited to equalizing ; “ their action is on classes of property, not upon the property of individuals, thus securing equality of value of all property belonging to the same class.” Desty on Taxation, Yol. I, p. 496 ; 50 Iowa 678; 42 towa 623 ; Welty on Assessments, § 153,154; 56 Cal. 195; Cooloy on Taxation, 421; 7 Minn. 207 ; 4 Mich, 579 ; 21 Barb. 611; 43 111. 456 ; 49 111. 517; 72 111. 241 ; 3 Col. 608’; Desty, Yol. I, 496 ; 30 Gratt. 477. “This is the general construction given to the laws relating to equalization boards in other States.” 30 Gratt. 477. Tt is a distinct power from correcting assessments.
    7. Boards of equalization differ from hoards of review further in their mode of action. They can act with or without application of any one; they need not take evidence or hear testimony; they may act exproprio mofu. 127 Mass. 505; 2 Gray 298 ; 120 Mass. 130 ; 92H. X* 604; Desty, Yol I, p. 496; 43 Conn. 309. .They may adopt their own means in reaching their conclusions. 16 Mich. 12.
    8. Their action, unlike that of the hoard of review, need nob be upon any individual assessment or assessments, and they need not make separate individual entries on each valuation. They need not foot up the valuations on the rolls. 22 Minn. 356. They can effect the equalization by adoptiug a committee’s report: they can equalize by the adoption of a percentage of reduction or increase, and need not go through the arithmetical computation and make the actual arithmetical changes in figures necessary. 15 Mich. 154 ,* Cooloy on Taxation. 422; Burroughs on Taxation, § 238; Desty, p. 603; 29 Me. 196 ; 1 Mich. 3T. B. 16: 48 N. Y. 93 ; 20 Yt. 643 ; 38 !Kf. H. 580.
    9. Unlike those of boards of review, the decisions of hoards of equalization are final. Welty 158; Cooloy on Taxation 291.

      10. To enforce by mandamus the carrying into effect of an equalization made by a police jury, individual taxpayers affected thereby may join in an action; 51 111, 132; Burroughs on Taxation ; 54 111. 243 ; 58 Penn. St. 338; 34 Conn. 105 ; 24 Ohio St. 210 ; !) Iowa 570 ¡ Dillon, Mun. Corp. §§ 731, 732, et seq., all cases where joint injunctions were sustained on the ground of privity of interest, and the common relief sought in similar cases of excessive taxation. ,
    11. When such equalizations arc made it is the duty of the assessor, as tlie party malting the rolls and signing them, to make the manual correction; 34 Ann. 373; Desty, Vol. I. p. 610 ; 44 Cal. 616; Id. 613 ; and he may be mandamused thereto ; Desty. 526 ; 65 N. Y. 228; 44 Cal. 616; 30 Ann. 263.
    12. A police jury acting as a board of equalization is not confined to any particular form in which to express their decision; where the law prescribes no particular form for a municipal corporation or body in which to exercise its functions, it may do so in any of the usual forms, resolutions, ordinances, etc. Dillon, Vol. I, p.362. § 246; 2d Edit. Abbot on Corps., p. 487; 36 Ann. 643.
    13. The principle of inolusio unis eccolusio a Iterius doevS not apply to an article of the Constitution, except one positively prohibitory, as abridging the po^ver of a legislature. Cooley Cons. Liras. (87,172 )

      31. J. Oummigham, Attorney General, and Jas. O. Moise for Defendants and Appellees :
    1. Boards of reviewers do not act by ordinance; they, as well as boards of equalization, are assessors (47 Cal. 646 ; 37 N. Y. 428); as such they must examine the lists submitted to them, form their judgment as to the value of each piece of property listed, arbitrate between the assessors and taxpayers, and enter such corrections and ehangevS as they wish to make upon the lists, and return same to the assessor, from which he makes out his roll. Secs. 32, 24, 23, 27 ; Acts 90 of '82 and 98 of ‘80.
    They are a body of limited powers, and must act strictly according to la\v. and may he compelled to do so by the State as well as by the taxpayer.
    2. They are not boards of equalization, but such incidental powers of equalization as tlioy may have must bo exercised in accordance wi£h Art. 203 of tlio Constitution, with reference to the relative values of property in different portions of the’State. But even as a hoard of equalization their powers are strictly construed, and any unauthorized action is void. Dosty’s citations, p. 497, Nos, 10, 11, 12 and 15; 43 111. 450; 49 111. 517 ; 50 111. 424; 53 111. 477. They have no power to raise or lower the assessment of the entire district constituting their territorial jurisdiction in the aggregate. Cooley 291; 51 Iowa 107; Desty on Tax, pp. 496, 497 ; 11 Neb. 63.
    3. An unauthorized rule of valuation adopted by them goes to the groundwork of the assessment, and vitiates the tax based upon it. 43 Wis. 55 ; 37 Td. 75. 48: 42 Id. 502 ; 5 Mich. 154; 57 Wis. 5.
    4. They must assess property only according to its cash valuation (Art. 203), and not according to parochial needs, which will he considered J)fy the police jury when iegulating the rate of taxation to bo subsequently levied.
    5. Adjudications in other States will not govern here unless based upon laws similar to on?1 own.
    6. In this State the tax “ list” and tax roll” afe separate and distinct things Acts 96 of 1882 and 96 of 1880; Secs. G, 8,13, 14, 15, 10, 17. 18, 19, 20. 21. 22, 24, 32.
    7. The proceedings with reference to the assessment of taxes arc based upon the former. They are the records of the judicial acts of those officers entrusted bylaw wTith flic solemn duty of assessing the tax.
    The proceedings with reference to the enforcement of tax collections are based upon the rolls. They are the tax collectors' warrant or authority to collect. Bee. 32.

      8. The assessor cannot he compelled, by mandamus, to alter the roll after it has been-filed. He no longer has oontrol over it. Desty. Sec. i 12. p. 57*1; 18 Pick 575; 49 H. Y. 635: Secs. 19 and 32 of Revenue Acts.
    9. Hor can he be compelled by mandamus to obey an ordinance of the police jury containing instructions with reference to assessraen t s.
    10. A suit with such declared object is really a suit to test the correctness of the assessment and must be brought in the maimer prescribed by law. The statutory remedy is exclusive.
    11. Tlie owners of different pieces of property have no privity of interest as to entitle them to bring such action jointly.
    12. A judgment in such a suit could only affect the assessment of the party plaintiff'. Sec. 36, Rev, Acts.
    13. A taxpayer, who makes no return of list nor complaint to the board of reviewers, that the vaination of his property is excessive, is presumed by bis silence to consent to the tax imposed. If a party does not have his assessment corrected and perfected when he has power to do so, he is assumed to admit its correctness. 46 Mich. 530; S, C. 9 H. W. Rep. 838 ; 100 XT. S. 547; 40 ¿S. J. haws 268 ; 4 Xev. 231 ; Want of knowledge no excuse,* 57 Iowa 80; 17Id. 389.
   Tlie opinion of the Court was delivered by

Watkins, J.

This is a mandamus proceeding', commenced in the district court by one hundred and twenty taxpayers, of the parish of Plaquemines, to compel tlie tax assessor to correct and amend the assessment rolls in conformity to an ordinance of the police jury; and to compel the tax collector to collect the taxes — State and parish— with the tax rolls thus amended.

The preliminary order was granted on the. 6th of December, 1886.

On the 13th of July previous, tlie police jury convened, as a board of reviewers, and the tax assessor presented to them.the assessment lists he had prepared, and those, also, of the taxpayers contesting their assessments; but uo formal action was taken thereon, at that time.

After a partial reading of the assessment lists, it appears that a conference was held by the police jury witli several planters of the parish, the immediate result of which was tlie adoption of the following ordinance, viz:

Resolved, That the said assessor be directed to reduce the assessment of 1886, on the real estate of the first, second, third, fourth, sixth, seventh and eighth wards ten per cent from the assessment of 1885, and of the fifth and tenth wards thirty per cent, and the ninth ward twenty per cent.”

I.

The respondents insist that there is a misjoinder of parties; that their petition shows that relators are the owners of separate and distinct pieces of property, and have, therefore, no privity or mutuality of interest, and not. entitled to join in one suit. Relators’ contention is that the police jury acted iu their capacity of a board of equalisation, in adopting their said ordinance, and sought thereby to equalize the assessments of property, in the different wards of the parish, by directing the assessor to reduce the percentage of valuation, according to the ratio of the depreciation of the property in value. That they did not act in the capacity of a board of reviewers, to hear and determine contested assessments, upon the application of individual taxpayers; to arbitrate individual assessments between the citizen and the assessor; nor to correct illegal and wrongful listings and valuations of assessed properties.

That in enacting said ordinance the police jury acted only from motives of public policy, and notin the interest of individual taxpayers, hence all the tax-paying inhabitants of the parish have a common interest in its enforcement, and any number of them may be joined in one suit for that purpose, seeking same relief, against same injury, and upon the seme grounds.

That, for the attainment of the object aimed at, a multiplicity of suits is wholly unnecessary.

It has been frequently held — and we think correctly — that taxpaying inhabitants, whose interests aggregate an appealable sum, may unite for the purpose of resisting a municipal ordinance, and upon like principles they may unite for the purpose of enforcing an ordinance of the police jury. 27 Ann. 319; 33 Ann. 567, 81 ; 101 U. S. 699; Dillon’s Municip. Corporation, Sec. 731.

II.

Reliance is placed on the provisions of Section 24_of Act 96 of 1882, as supporting relator’s theory.

The preceding section declares that the police juries of the several parishes are “constituted boards of revieivers for their respective parishes.” Sec. 23.

The provisions of Sec. 24 are: “ That the said board of reviewers shall meet on the first Mbnday in July of each and every year, * * * and the several assessors * * * shall lay before the said board all of the lists of property, with the estimated cash valuation extended, as listed and valued by the said assessors, e * * together with the lists and valuations made under oath as aforesaid, of those property owners who believe the assessor’s valuation to be in excess of, and beyond the actual cash vahi.e of, the personal or- real property thereon enumerated; and tho said board shall proceed at once to arbitrate upon said lists of property and cash valuation; and their decision shall be final, unless set aside m accordance with Article 203 of the Constitution.

“ Tile said board of reviewers shall then proceed to examine all the aforesaid lists of real and personal property submitted to them by said assessors; and should they find any property to have been illegally or ■wrongfully assessed in the listing or valuation thereof, it shall be their duty to correct the same; and they shall also equalise the assessments of all properties of like character and relative value within their respective parishes, in accordance with Article 203 of the Constitution.”

This hoard is styled in the act creating it, a board of reviewers, and not a board of equalisation.

It is clothed with power to arbitrate, upon the lists of property, with the cash value thereof extended by the assessor, and those presented by the taxpayers who believe the assessor’s valuation excessive — and their decision is final, “unless set aside in accordance with Article203 of the Constitution.”

It is also clothed with the further power to examine all assessments that are submitted to them by the assessors, and to correct all illegal and wrongful assessments, and to equalise the assessments of all properties of like character and relative value.

For either purpose, this hoard has the power of summoning witnesses and the right to interrogate them, in order to possess themselves of the necessary information with regard to the character and value of all the properties that have been listed, and included in tlie assessments that have been submitted to them.

Upon the evidence, they are specially empowered to pass, and to decide and to determine the correctness of the listing and the valuation.

The statute, in terms, declares that, in respect to the determination of this board on questions pertaining to the correction of the lists and the equalization of assessments — as set out in the second paragraph of the quoted section — “after having passed upon and determined the correctness of any list, and the valuation thereof, the same shall be final, unless set aside or changed in the manner prescribed by law.”

From these consecutive and continuous provisions of tlic statute relied upon by the relators, we can easily discover the manifest intention of the Legislature to create a board or tribunal possessed of quasi judicial powers. Railroad Company vs. Sheriff, 38 Ann. 760.

This board — though to a limited extent possessing powers of a hoard of equalization — must only act upon assessments; such assessments as are submitted to them for examination by the assessor.

The. equalization contemplated is that to he made of the assessments of “ all properties of like character and of relative value” in the parish.

In order for this hoard to determine the “like character” of the property assessed, tlie lists must be examined by them, and the properties thereon described be classified.

In order that the board should accurately determine the “relative value ” of the properties assessed, the estimations of value made by the assessor, and those made by the taxpayers, must be taken, and the testimony of witnesses administered by them.

These facts once ascertained, the duty devolves upon the board to complete the equalization of all the properties that have been assesssd.

This may be done by placing upon one schedule arable lands that are above overflow. In another, those of an inferior grade and subject to overflow. In another, swamp lands. In another, timbered lands. In another, urban property — of different grades.

When the real estate has been carefully graded and classified, an approximate valuation may then be made for each. All properties assessed may be arranged in one or the other schedule, as the board shall determine, after having heard the evidence.

In this or similar manner the value of all properties assessed may be equalized, so that each may bear its just proportion of taxes. Tf some such an equalization were made no assessment wonld exceed its actual cash value,” which is the constitutional basis of all taxation. Const. Art. 203.

III.

( Evidently the one provided by the act under discussion is not the ) system of equalization contemplated by Article 203 of the Constitu- ' lion.

/ It declares: In order to arrive at this equality and uniformity, the l General Assembly shall, at its first session, after the adoption of this \ Constitution, provide a system of equality and uniformity in assess(ments, based upon the relative value of property in the different por - tions of the State,”

J The framers of that instrument obviously intended the creation of a \ State Board of Equalization, though it appears that no such act was C passed by the Legisiature, as contemplated.

The provisions of that article (203) were clearly not intended to be self-enforcing. Instead, we have the statute we are considering. But the powers conferred can only be exercised in the precise manner therein indicated.

The police jury, in passing and promulgating the ordinance sought to be enforced, clearly exceeded their powers, as a board of reviewers. They failed to exercise their quasi judicial powers, in the manner indicated, or in any similar manner.

The ordinance shows, upon its face, that they did not make a com-N, píete examination of the lists of property assessed, and which had been placed before them by the assessor. They did not, therefore, pre- / tend to equalize those assessments. They did not take the proper mode of ascertaining the relative value, or like character of the properties assessed. They did not predicate the ordinance upon “ the actual cash value ” of the property assessed, but upon the alleged necessities of the parish, for the then current fiscal year.

On this feature of the case we will quote from the evidence of Mr. James Wilkinson, who is district attorney. lie says: “The police jury met, and the tax assessor laid his lists on the desk before the police jury, and began reading out the list of property of the parish ; and also read out the cases in which oppositions liad been filed.

“ I don’t remember the persons who opposed at that time.

“ No action was taken, at that time, on any reduction whatever. It was the purpose of the police jury to read the entire list, and take action afterward on the oppositions.

After reading through the list, as far as the fourth ward or fifth ward, several of the large sugar planters, including Messrs. Dymond and Warmoth, and the police jury, had a conference. * * The sheriff was called, and « statement of what the pan'ish could be run for, during the year 188(1, was approximated by them, and an agreement reached as to what it would be best to reduce the total assessment of the parish roll.

They then proceeded to pass an ordinance reducing the assessment, by wards. Thinking — as was stated in the police jury — my opinion was asked as to this reduction, a statement was made, by the members of the police jury, that it would take them too long to make the reduction, separately, and therefore they passed the ordinance, instructing the assessor to make these reductions, as stated in the minutes of the police jury.”

This course of proceeding was in direct violation of the statute.

The Constitution provides that the valuation put upon property for the purposes of State taxation shall be taken as the proper valuation for the purposes of local taxation, in every subdivision of the State.” Art. 208.

'The police jury reversed the order of things, and attempted to make the necessities of the, parish the basis for the assessment of State taxes.

It is the province of the General Assembly to determine the amount, of revenue required, and not that of the police jury. But it is their province — while acting in their capacity of police jury — to make the levy of such a percentum on the total assessment, as in ay subserve the necessities of the parish. They cannot reduce the assessment — the State assessment — so as to meet those necessities.

IT.

In Shattuck & Hoffman, vs. City of New Orleans, et al., 39 Ann., not yet reported, this court said : The right of the tax-payer to appear before the standing committee of the City Council and be heard concerning the description of property listed, and the valuation of same, as assessed; and the report of the standing committee on assessment of the City Council, are proceedings preparatory, and prerequisite to the tax-payers right of action to test the correctness of the assessment in the courts of justice.”

The same rule must be applied to the revision and correction of assessments in the country parishes by boards of reviewers.

It matters not whether such revision consists in an arbitration by the board upon the lists of property furnished by the assessor, and those of the taxpayers resisting the assessment as made, or in their making correction of assessments, that are illegal and erroneous in the listing or valuation, or in equalizing assessments of properties of “ Klee character and of relative value.”

All those powers are expressly conferred upon the police jury as a board of reviewers. Their action, in either case and in any event, is the proper subject of review in the courts. The concluding clause of the section of the statute conferring those powers on board of reviewers provides that after having passed upon any list and the valuation thereof, the same shall become final, unless set aside or changed, as provided by laiu.”

We have been entertained and instructed by the elaborate and well-digested briefs of counsel for relators and respondents; but have chosen to rest our conclusions upon an examination aud careful analysis of the statute on which relator’s claims are predicated.

We are of the opinion that the ordinance of the police jury drawn in question here, as authority for the peremptory mandamus requested to the State tax collector and assessor, is illegal, null and void, and that the writ was properly denied by the judge a quo.

Judgment affirmed.


author: Bermudez, C. J. Poché, J. Fenner, J.

text:
    No. 9964.
    The State of Louisiana vs. A. Fernandez.
    Act 18 of 188G, commonly known as the Sunday Law, operates uniformly throughout the {State, and cannot be construed so as to authorize to be done, in one place, on Sundays, that which it forbids to be done, on that day, in all other places.

      "Whoever claims an immunity from the operation of a general law, must prove it with certainty. Exemption laws must, be strictly construed. In such cases, doubt is fatal.

    Grocery stores, required to be closed on those days, outside of a public market, cannot be allowed to be opened, as stands, on those days in such markets, in the absence of express legislation authorizing the same.
    The exemptions from the operation of the law, enumerated in Section 3 of the act, cannot be extended so as to include cases not within legislative contemplation.
    APPEAL from tlie Criminal District Court for the Parish of Orleans. Homcm, J.

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

      Blanc & Butl&i' for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant was prosecuted for violating the provisions of Act 18 of 1886, commonly known as the “Sunday Law.”

The information charges that, on Sunday, the 27th day of February, 1887, he did unlawfully open a certain establishment and place of business called a grocery, which, by law, is required to be closed at twelve o’clock on Saturday nights, and to remain closed continuously for twenty-four hours j and that, being the proprietor of such establishment, he then and there did unlawfully give, trade, barter, exchange and sell certain portions of the stock and certain articles of merchandise kept in such establishment and place of public business, contrary to the form of the statute, etc.

On a first prosecution the accused pleaded guilty and was iiued $25, but on the present prosecution for a second violation he pleaded by demurrer.

He there averred the acts charged, averring, however, that keeping a grocery and selling groceries in a public market, wherein the like was kept and sold, of time immemorial, is no offense under the law.

On issue joined by the State, the case was tried. The court, for elaborate reasons forcibly expressed, overruled the plea and imposed a fine of $305 on the accused, who excepted to the ruling and appealed from the sentence.

So that, the question presented here is simply: Whether a grocery establishment can or not be legally opened on Sundays, in a public market in which such establishments, for time immemorial and on all days, have been, up to the adoption of the law, habitually kept1?

In order to ascertain the legislative intent, it is essential to analyze as well the sections as the title of the statute. (Act 18, p. 28, of 1886.)

An attentive consideration of these satisfies the mind that they are all substantially expressed in the title, which reads as follows:

“An Act requiring all stores, shops, groceries, saloons, and all places of public business, which are or may be conducted under any law of the State of Louisiana, or under any parochial or municipal law or ordinance, except those herein exempted, to be closed on Sundays; and forbidding- all giving-, trading, bartering and selling on Sunday by the proprietors or employes of such establishments, declaring it a misdemeanor to violate the provisions of this act and to fix penalties for all violations of the same; and to repeal all laws or parts of laws contrary to or inconsistent therewith.”

The defense, however, is, that as Section 3 declares that the provisions of the act shall not apply to public markets, and as the grocery establishment in question was ojrened in a public market, in which such establishments have, at all times, been kept, the opening of a grocery stand in such place of public business, on Sundays, is not only not prohibited, but impliedly allowed and authorized.

The defense is untenable.

It is apparent that, but for the saving- clause under which the accused seeks shelter, he could not pretend to be exempt from the operation of the law, for the obvious reason that, had he opened his grocery elsewhere than in a public market, he would assuredly be amenable to the statute.

Equality of rights, privileges and capacities unquestionably should be the aim of the law. If special privileges are granted, or special burdens or restrictions imposed, in any case, it must be presumed that the Legislature designed to depart as little as possible from this fundamental maxim of government.

The State has no favors to bestow, and intends to inilict no arbitrary-deprivation of rights. Special privileges are always obnoxious, and discriminations against persons or classes are still more so. As a rule of construction, it is to be presumed that they were probably not contemplated. Cooley on Const. Lim., No. 493 (pp. 493-4), 4th ed.

When the General Assembly, for reasons not disclosed, deemed proper, in the exercise of the police power possessed by the State, to require, under penalties, the closing- on Sundays of places of public business, the object in contemplation was the shutting up, on Sundays, of all stores and places of business, not exempt, irrespective of locality, by a uniform legislation, operating throughout the State.

The Legislature would not, and did not, design to require such closing on Sundays in one or more places and permit the opening of similar stores and establishments at other places, on the same day. Such legislation would have been unjust, odious, despotic and oppressive.

If it be true, as alleged by the defendant, that groceries have always been lcepr, on Sundays, in the public markets of the State, it is equally so that such establishments have also been kept at all other places.

It cannot be inferred, however, from that circumstance that, although the State has required generally the shutting' up of all such places, she has, by implication, exempted from the dosing, and therefore authorized the. opening, of grocery establishments kept in jpublic markets.

The argument, it would seem, rather militates the other way; for no reason is adduced why the closing should not be uniform, or why certain places should be shut while others remain open, simultaneously, on Sundays.

The principle is established beyond question, that whoever claims an exemption or immunity from the operation of a general law, must prove it with certainty, as exemption laws must be construed strictly. In such cases, doubt is fatal.

Tt was incumbent, therefore, on the defendant to have established, from the letter or spirit of the law; that although the shutting of a grocery outside of a public market on a Sunday be commanded as a gen-' eral thing, the opening of it in that place, on such day, is formally sanctioned by law; but he has failed to do so.

Had it entered the legislative intent to allow the opening of a grocery stand or establishment on a Sunday, in a. public market, when such opening is forbidden elsewhere on that day, it would have said so; but it has remained perfectly dumb on the subject.

It is not competent for the judicial power to engraft unauthorized and unjustifiable exceptions on exceptions considerately made by the law-giver.

However liberally construed be the exemptions enumerated in Section 3 of the act, they cannot be legitimately stretched so as to extend the immunity to grocery establishments in public markets.

Ruling differently would be doing violence to the tenor aud purport of the law and to throw a door wide open, in public markets, to all business clearly prohibited beyond their limits.

We have deemed it unnecessary to enter into any discussion of the meaning of the, words “public markets,” as we considered that whatever the signification be, it cannot be invoked to justify the attitude of defendant, that what is required to be done generally throughout the State, regardless of locality, is not exigible within the precincts of a public market.

We, therefore, conclude that the law does not authorize the opening, on Sundays in public markets, of grocery establishments which are all required uniformly to be closed elsewhere on such days, and we consider that the demurrer set up by the accused was properly overruled.

Judgment affirmed.

On Rehearing.

The Court has been charged with misunderstanding and misapplying the law, and so, with having inflicted disastrous damage on the city of New Orleans. It has been pressed to recant its opinion and decree, and decide that a “public market ” is a “public market.”

The Court did not misconceive the law. It would not suppose in the Legislature the design to make odious and unconstitutional discriminations between citizens belonging to the same class. It could not impute to the General Assembly the intention to allow to be done, under the roof, or within the limits of a public market, that which it absolutely prohibits, under pains and penalties, one line beyond that roof or those limits. It could not conceive that it was the legislative will to discriminate between the public markets in Nexo Orleans and other markets at different places in the State.

The Court had no concern with what constitutes a public market. It has none now. Tt had to decide, under the demurrer and the replication, whether the defendant was or not amenable to the accusation against him.

It concluded that the defendant was keeping on a Sunday, within the market, that which he could not keep, and was bound to close oul of it--a place of public business, at which he dealt in grocery articles; in other words, a grocery stand or stall; and that the fact constituted the offense and justified the infliction of the penalty.

There is some pretense that the defendant is not required to pay a license for keeping a grocery stand in the public market. Whether the license be actually levied by State or city, in the sense of requiring payment of it, is immaterial. The law' imposes, or may impose the license, and the statute under consideration requires the closing on Sundays of all places of public business, even plantation stores, which are, or may be licensed, under the law of the State, or under a parochial or municipal ordinance.

If, then, the Legislature has required the closing on Sundays of all places of public business, which are or may be licensed, and if such places of business within public markets are, or may be licensed, the conclusion is irresistible, that the defendant is not shielded from the operation of the prohibitory and penal provisions of the law', and his case falls w'ithin their purview' and ban.

When, therefore, the Legislature removed or exempted public markets from the operation of the law, keeping in view the equality of rights of the citizens -they meant such public markets, within the limits of which goods were not sold, or places kept open, which are forbidden from being sold or are required to be closed, beyond their boundaries.

If the ruling has operated harshly, as is represented, it is a consequence which must have entered into the legislative consideration before the Legislature solemnly expressed their behest, and which this Court is powerless to avert.

If the “ Sunday law ” be harsh but constitutional, it must he enforced. Dura lex, sed lex.

This Court has deliberately held that the ‘'Sunday law” violated no constitutional prohibition on the power of the General Assembly, and is obligatory. The courts have to enforce its commands.

This Court cannot be asked to blow hot and cold in the same breath, and it cannot do so.

It is, therefore, ordered that our previous decree herein remain undisturbed.

Fenner, J., dissents.

Concürrino Opinion.

Poché, J.

The object of the Sunday law,” as expressed in its title, is to require all stores, shops, groceries, saloons, and all places of public business, which are or may be conducted under any law of the State of Louisiana, or under any parochial or municipal law or ordinance, * * to be closed on Sundays.”

It is undeniable, that, under its provisions, all dealers in groceries must close their establishments on Sundays, but the city of New Orleans, intervening herein for the protection of its market lessees, contends that dealers in groceries in the public markets are not reached by the law, but that they are protected by Section 3 of the act, which provides that the law shall not apply to public and private markets.

Nothing in the language of the act, or in the spirit of the legislation, suggests the slightest legislative intention to make such a discrimination, and it is difficult to conceive of any reason which could justify a distinction between the act of selling groceries in a store, house, or shop, and selling the same kind of goods in the public market of a city or town.

In the case of the State ex rel. Walker vs. Judge, recently decided, by this Court (Southern Reporter, Col. 1, p. 487), which involved the alleged unconstitutionality of the Sunday law, the point was made by relator’s counsel, who argued that the law was not uniform or equal in its prohibitions, and particularly in its exemptions, on the ground, among others, that grocery stores were required to close on Sunday while dealers in groceries in the public markets were allowed to carry on their business on the same day. To that contention this Court answered : “ The objection has not the slightest force. The law is not unequal in any constitutional sense. No person in the State is permitted to purchase any of the prohibited callings on Sunday. * * * It is enough to say that the law does'not expressly grant such privilege, and it will be time enough to determine whether, under a proper construction of the law, it exists, when a ease directly involving the question is presented.” That case is now before the Court, and having sustained the law as constitutional, because, under a proper construction, it was not amenable to the charge that it permitted certain persons to pursue some of the prohibited callings on Sunday, we are now asked by the defense to allow the selling of groceries in the public markets on Sunday, under the very law which avowedly prohibits that very act, in all other places, all over the State. Could we consistently make such a ruling?

We sustained the law simply because it was the legislative will, not violative of any restriction in the Constitution, and we have no more reason, by construction, to limit or restrict its intended effect, so as to avert any resulting inconveniences, than we had to declare its nullity as a whole. No reason can be invoked to authorize, under the law, the selling of groceries in the public markets of New Orleans, which would not, at the same time, justify the selling of the same kind of goods in stores where the same are universally sold in the city, as well as in all other localities in the State.

Guided by respectable authority, this Court rested the action of the ’Legislature in adopting a Sunday law, on the following considerations, deriving their efficacy from the exercise of the police power ; It is claimed that, from physical causes, men require respite from intellectual and physical labor in the proportion of one day’s rest in seven, and that a law.which enjoins this is not only for the aggregate good of society, but for the boneiit of all the members. It is said that the labor of six days, with this relaxation, is more productive in the long run than the uninterrupted labor of the week. It is said, besides, that this law affords, indirectly, protection against oppression to employes — women, apprentices and servants — and that, but for the law, men would keep open stores and shops because their neighbors did so, and that, by competition, a sort of compulsion exists to violate the laws of health.”

Hence, there is no force in the argument based on the great inconvenience to the people of this city, who would, by the unexceptional enforcement of the law, be deprived of the privilege of purchasing certain grocery articles on Sunday, which articles had been from time immemorial sold in the public markets of New Orleans. The sale of such articles in grocery stores, especially in the proverbial u corner grocery,” certainly antedates that custom, and yet the Legislature did not hesitate to destroy that greater convenience.” And no reason is apparent, from the language of the act, or in the argument of defendant’s counsel, to indicate the slightest legislative intent to spare the other or lesser convenience. A Sunday law does not deal with conveniences it is avowedly an invasion on all conveniences on Sunday. It seeks, with an iron hand, to enforce obedience to a principle by means of a rule which is unbending, except when confronted by necessity.

Hence, to be constitutional, it must make or countenance no discrimination between persons pursuing the same calling, and, therefore, it cannot be construed, as contended for, as making a distinction when there exists no difference.

It would, indeed, be too violent a presumption to suppose that under the guidance of the considerations which underlie all Sunday laws, our legislators could have conceived the opinion that dealers in groceries under a market shed did not need as much rest as vendors of groceries in stores; or that, unlike the latter, the market grocery dealers could not have made their business as productive in the long run, with the labor of six days, as with the uninterrupted labor of the week,” or that, in the absence of a Sunday law, the employees of the market grocer would have been less exposed to the oppression of their employers thau those of the grocer in the store.

No more is our law-maker amenable to the charge of contemplating the convenience of the poorer classes in New Orleans by means of a permission to buy certain articles of groceries in. the markets on Sundays, at the same time (and by means of the same law) that he peremptorily ordered the closing on Sunday of all plantation stores,” which are the only market within the reach of more than three hundred thousaud laborer's in the cotton, rice and sugar Helds of Louisiana, who yield to no other class in this city in the need of relaxation of the rule for conveniences on Sunday.

There is no more force in the argument that our construction of the Sunday law will cause great losses to the city of New Orleans in her market revenues. This Court never shrinks from the legitimate responsibility of its own acts. But it is easily conceived that such a responsibility cannot rest on the shoulders of the judiciary, wlio is powerless to avert the evil resulting from bad laws, as long as the same cannot be annulled as unconstitutional.

The remedy must be sought at the hands of the law-making power which alone has the authority to repeal obnoxious or unwise legislation.

Por these reasons, and for those contained in the opinion prepared by the Chief Justice, I concur in the decree herein rendered.

Dissenting Opinion.

Fenner, J.

The accused appeals from a conviction of the offense of violating Act No. 18 of 1886, known as the Sunday Law, by selling in a public market of tlie city of New Orleans, articles of human food known as groceries.

The. ordinances of the city of New Orleans establishing and regulating its public markets, have, from a remote period, and do still, authorize the selling therein of all articles of human food, including such groceries.. Jewell’s Digest, pp. 268 and 269.

The article of the ordinance now in force provides “ that all kinds of meats, fowl, game, fish, vegetables, and all other articles of human food may be bought and sold at the public markets, etc.”

The 1st section of Act 18 provides that “ all stores, shops, saloons and all places of public business, etc., are hereby required to be closed at twelve o’clock on Saturday nights, and remain closed continuously for tweuty-four hours, etc.”

Section 3 declares “that the provisions of this Act shall not apply to f * public and private markets, etc.”

I quite agree with the learned judge a quo that, in interpreting this exemption, we are to search for and give effect- to the probable and reasonable intent of t-lie legislature, in employing the terms “ public and private markets.”

If it should happen that in some particular town or city of the State the local municipal ordinances authorized the sale of dry goods, woodenware and all other articles of commerce, in the public market, I should not consider that such traffic was within the exemption contemplated by the legislature.

We are to infer that, in exempting public markets, the legislature meant public markets as commonly and customarily organized and covering the kind of traffic ordinarily authorized and conducted in such markets.

We have seen that, at the time of the passage of this law and long before its passage, the public markets of this city, the most prominent and generally known of all in the State, were established for the purchase and sale of “ all articles of human food.”

We are not advised whether or not public markets as organized in other towns and cities embrace like privileges; but I think we may say that generally, at least in cities, they do, and that anyone would expect to find in them such articles as butter, lard, cheese, bread, rice, meal, salt meats and other like articles of daily consumption for human food, and that a market where such thing's could not he procured would illy serve the convenience of the people for which they are established.

We are referred to two dicta by this Court on the subject which confirms this view. In one ease the Court defines a public market to be “a place to which the public have free admission for the purpose of purchasing provisions.” Heirs of David vs. N. O., 16 Ann. 407.

In another, Chief Justice Merrick said, a market “is a place to which all persons have a right to resort daily, to supply themselves with such provisions and necessaries as are there vended.”

The learned counsel for defendant also quotes the language of the Supreme Court of Ohio, viz: “A municipal market constitutes 1st., any place for the sale of provisions and articles of daily consumption; 2d., convenient fixtures; 3d., a system of police regulations, fixing the market hours, making provisions for lighting, watching, cleaning, etc.; 4th., proper officers to preserve proper order and enforce .obedience to the rules.” Cincinnati vs. Buckingham, 10 Ohio, 257.

These expressions indicate, as I think, the legal and popular idea of the ordinary, modern, municipal market, to which, undoubtedly, the legislature referred.

I can discover no reason or authority to coniine the term to the narrower meaning of a place for the sale of fresh meats, fresh fish, game, poultry, vegetables and fruit exclusively, as adopted by- the judge a, quo and contended for by the State, on the ground that such articles must be procured on the day upon which they are used.

Many vegetable» and fruits, such as potatoes, cabbages, onions, beans, apples, oranges, lemons, bananas, etc., are quite as free from any necessity of being procured on the day of use, as are lard, butter, cheese, etc., which fall under the denomination of groceries.

We are to remember, too, that the wants of all classes of people are to be considered. The poor man, who receives his wages on Saturday night, has not always been able to provide his Sunday dinner in advance. When he goes to market on Sunday morning, his scanty purse may not afford the luxury of fresh meat, fresh fish and game. Shall ho be deprived of his rasher of bacon or cut of cheese ? The careless housekeeper may have forgotton to replenish her store of butter, or lard, or meal, or rice, or salt and pepper ? Shall her Sunday dinner be, therefore, spoiled?

I feel safe in holding that the public markets, as established in New Orleans for the sale of all articles of human food, are not exceptional and fall clearly within the exemption intended and expressed by the legislature. 1 have not found, or been referred to, any definition of a public market; by any lexicographer or other authority, placing a more restricted meaning on the term than 1 have now given it; and, on the contrary, they generally assign to it a more extensive significance. Bouvier’s Law Dic. Verbo, Market; Webster’s Die. Id.; Richardson’s Die. Id.; Worcester’s Die. Id.

They all agree that it is a place for the sale of provisions.”

Not only have the people a direct interest in having this exemption sustained; but the city of New Orleans has a like interest, and has appeared, at our bar, through her law officer, in support of it.

It directly affects the city’s revenues which are, to a considerable amount, derived from the leases of these markets, which have been executed upon the faith of their status as recognized by law, and the consideration thereof would be sensibly impaired by the change in that status for which the State now contends.

I discover no force in the argument that, because the exemption applies equally to “public and private markets,” therefore only the traffic authorized in private markets should be considered as authorized in public markets. A private market is one thing, a public market is another. Each is separately regulated by law, and must stand on its own 'footing. The exemption extended to both neither enlarges nor diminishes the privileges of either.

It is claimed, however, that the construction now given to the law would render it, to that extent, unconstitutional, because, in permitting persons occupying stalls in the market to sell groceries on Sunday, while denying the like privilege to other dealers in groceries, it would violate the right of the latter to that equality of rights and privileges which is secured by the constitutional provisions, guaranteeing to all citizens the “ equal protection of the laws.” But it is well settled that these provisions do not prevent the Legislature from determining whether a particular rule shall extend to all its citizens only,” and that “ all that can be required in such cases is that the laws shall be general in their application to the class or locality to which they apply.” Cooley Constitutional Lim. 4 Ed. pp. 488-9. The occupant of a stall in a public market, who, for the public convenience, is allowed to sell those special kinds of groceries used for human food, within certain limited hours of each day (viz: under present ordinances, between the hours of 6 and 10 a. m.) and subject to all other markef regulations and police control, certainly belongs to a very different class from the ordinary private dealer in groceries, who occupies and controls Ms own store, who sells there, or may sell, not only articles of human food, but many other articles ordinarily embraced in the grocers’ stock in trade, who opens and closes at his pleasure, and whose business is subject to no peculiar police control and regulation. If they belonged to the same class, with much greater force might the market vendor complain that his constitutional rights were violated because he was compelled to close his establishment every day at 10 o’clock a. m., while other grocers were at liberty to keep open all day.

They belong to totally different classes. No law forbids any grocer from renting a stall in the public market, if any be vacant, and acquiring the same privileges accorded to that class of citizens. There is no discrimination between citizens, but only between different classes of citizens, classes equally open to all, and the discrimination is based upon obvious considerations of public policy and convenience, which amply support and justify it.

For all the foregoing reasons I think the Court has placed too narrow a construction on the law, one not contemplated by the Legislature, hostile to the interests of the city and to the convenience of the people, and calculated, if enforced, to make the law odious by subverting the very public convenience which the exemption was obviously intended to subserve.


author: .Bermudez, C. J.

text:
    No. 9894.
    Ernst & Co. vs. New Orleans Waterworks Company.
    An injunction can lawfully issue to prevent a water-works company from cutting off its water supply where the consumer has offered to pay in advance the proper amount tor the use of such water during the year, and the company claims a higher rate than is truly due and exigible.
    Under the terms of its charter, the company is hound to supply water at the rate charged by the city of New Orleans previous to the date of said-charter, which was fifteen cents for a thousand gallons to large consumers.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissok, J.

      J. O. Nixon, Jr., for Plaintiffs and Appellees.

      J. B. Beckwith for Defendant and Appellant.
   The opinion of the Court was delivered b.y

.Bermudez, C. J.

This is an action to prevent the defendant company from turning off its water supply from plaintiffs’ vice mills as long as the rates therefor ar.e paid in advance and to compel the company to continue such supply with that reserve of right.

The defendant company charges that the case presented is not one, in which an injunction can issue and that it is entitled to more than the amount which plaintiffs offer to pay.

From a judgment in favor of plaintiffs with certain qualifications of rights in favor of each party, the defendants appeal.

This case cannot be distinguished on the questions of law jireseiited, from those of Isaac Levy against the same company. 38 Ann. 25 and 29, in which this Court held that:

1. The codal provisions of our practice touching injunctions, are broader and more comprehensive than the rules of the chancery courts and include causes for injunction that would not be sanctioned in a court of equity, and that an injunction could issue to prevent the water-works company from cutting off its water supply on a proper showing.

2. The act of incorporation of the defendant company forbids it to1 charge more for water than was paid to the city at the date of its incorporation, March 31, 1877, and the charge then made by the city was fifteen cents for a thousand gallons to large consumers, and that a rice miller in New Orleans is entitled to the nso of the water conveyed through the pipes and conduits of the water-works company on paying-in advance for his supply at that rate.

in computing tlie quantity of water to be used, the district judge considered that the number of gallons equal the quantity of coal consumed arid allowed fifteen cents for each thousand gallons, adding a reasonable amount for watei employed for the cleaning of the boilers, et.c., and decreed accordingly, reserving to tlie company the right to claim more than the amounts to be paid in advance, should more water be used than had been computed, and to tlie plaintiffs the right to claim the difference-between that amount and the quantity of water used, were it eventually less than that computed.

The district court perpetuated the injunction.

We have no reason to disturb our previous views and the finding of the district court.

J udgment affirmed.