text:
    No. 10,060.
    B. R. Forman vs. New Orleans and Carrollton Railroad Company.
    Under llio Constitution and laws of tlie State oí* Louisiana tlie city of New Orleans is clothed with full and exclusive power to grant franchises for the construction and operation of passenger street railways, by steam or horse power, within her corporate limits, including the right of regulating the rates of fare to be exacted by said corporations for the transportation of passengers.
    The city’s discretion in regulating such matters is not subject to judicial control or interference, unless arbitrarily or unlawfully exercised.
    That feature of the contract between the city and the New Orleans and Carrollton Railroad Company, which exacts from the public a fare of ten cents from Carrollton to Canal street, except from actual residents above RTapoleon avenue, who can on certain conditions make the trip for five cents, is not subject to attack as an unreasonable discrimination prohibited by the law governing tlie obligations of common carriers.
    APPEAL from the Civil District Court, Parish of Orleans. Houston, J.

      F. H. MeOaleb and W. F. Mellen for Plaintiff and Appellant.

      J. M. Bonner for Defendant and Appellee.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff complains that he was illegally ejected from one of defendant’s cars, for which he claims damages in the sum of $5000, and he prosecutes this appeal from a judgment which rejected his demand.

The following are the salient facts in the case :

The contract under which the defendant obtained its present franchise was framed under the provisions of two ordinances of the City Council of New Orleans, which contained the specifications under which the right of way was to be sold to the company, among which was the following:

Fare. — The rates of fare from Canal street to the head of Jackson street and the Napoleon avenue station, and points between, shall be (5) five cents, and (5) five cents beyond Napoleon avenue station, between the hours of 4 a. m. and 12:30 p. m., except to actual residents above Napoleon avenue, who shall have the privilege of purchasing through tickets at the rate of ten for fifty cents. The fare between 12:30 p. m. and 4 a. it. to be charged shall be (10) ten cents to Napoleon avenue, and (10) ten cents from there to Carrollton.”

In compliance with that stipulation the company procured tickets in bunches of ten each, which it has been selling exclusively, at least knowingly, to actual residents above Napoleon avenue, designed as explained in the opinion of this Court in the case of De Lucas vs. Railroad Company, 38 Ann. 931.

It appears that plaintiff, who does not reside above Napoleon avenue, obtained a bunch of such tickets from a person who was an actual resident above that street and attempted to ride on one of those tickets from the corner of Second and St. Charles streets to Carrollton. At Napoleon avenue, where the change of cars is effected, he tendered for his fare thence to Carrollton one of the coupons of the tickets in question, which was refused by the collector, on the ground, as acknowledged by plaintiff, that he was not a resident above that avenue. Being called upon to pay the regular fare, and persisting in his claim to pay the same by means of the ticket, plaintiff was ejected from the car.

It appears that on two previous occasions plaintiff had tendered similar tickets for his fare at the same point, which had been refused, but that, in order to avoid an unpleasant contestation, the employee of the company had himself paid plaintiff’s fare in currency, as required by the rules of the company.

The crucial point in the case is the contested right of the company to make the discrimination, hereinabove described, in favor of actual residents above Napoleon avenue, which is alleged to be unjust, unreasonable and violative of the legal obligations of the defendant ■company as a common carrier. Hence, the main relief claimed by plaintiff is a decree condemning the defendant to sell to him and other persons, residing below Napoleon avenue, tickets on the same terms and conditions which are extended to actual residents above Napoleon avenue.

It appears, as above stated, that the discrimination complained of ■does not emanate from the railroad company, but that it was imposed on it as a condition of its franchise by the city.

The leading feature of that stipulation is a limit of the maximum rate which the company can- exact for fare-between the points therein designated. Under its requirement the company cannot obtain a ■higher rate-than ten cents between Canal street and Carrollton, or five cents between Carrollton and Napoleon avenue, and between Canal street and Napoleon avenue, or the foot of Jackson street, and-intervening points.-

It is shown that during the existence of a previous corporation, which operated a road on the same street between Carrollton and Lee Circle,” several blocks above Canal street, the rate of fare was twenty-five cents each way.

Hence the complaint is not that the rate which is charged to plaintiff and to the public in general is excessive or unreasonable, but the contention is that plaintiff and all persons who do not reside in this city above Napoleon avenue aré placed at a disadvantage in comparison with actual residents above that avenue.

Under our law, touching the powers of the city of New Orleans, as expounded in jurisprudence, it clearly appears, and it is not even disputed, that the city is clothed with the full and exclusive power of granting franchises for the construction, operation and running of' railroads over the streets, as well as the power of fixing.a tariff of rates to be exacted by all such corporations.

Act No. 20 of 1882, which was the city charter then in force, gives-to the Council the power “ to authorize the use of the streets for horse and steam railroads and to regulate the same, to require and compel all lines of railway or tramway to use any one street, to run on the same track and turn-table, to compel them to keep conductors on their cars,” etc. Brown vs. Duplessis, 14 Ann. 842; Board of Liquidation vs. New Orleans, 32 Ann. 917; Harrison vs. N. O. Pacific R. R. Co., 34 Ann. 462; Tilton vs. Railroad Co., 35 Ann. 1068; Railroad Company vs. N. O., 39 Ann. 709.

But, conceding all these powers to the city of New Orleans, plaintiff contests the right of the city to make the discrimination complained of.

That argument suggests the question of the right of the judiciary to interfere with the discretion of the city in dealing with matters which the laws of the State have placed within its exclusive control and management. The question came up in the case of Watson vs. Turnbull, reported in the the 34th Annual, p. 856, in which the Court, after a full review of all previous authorities bearing on the point, said:

“ Within the corporate limits, the city of New Orleans, under her charter and under the general law, has the right to control, manage and administer the use of the river banks for the public convenience and utility, to establish wharves and landings, to erect works and provide facilities for the use of vessels and water craft, and to charge a just compensation for the use thereof. Riparian proprietors have no right to appropriate to their exclusive use these banks, and they have no private property in the use thereof, which is public. The discretion of the city authorities in determining what are proper and needed facilities for commerce, and on what part of the river bank, within her limits, they should be established, is manifestly not a subject for judicial control or interference.”

The views of that opinion, which are supported by numerous previous adjudications, were re-affirmed in the cases of Pickles vs. McLellan Dry Dock Company, 38 Ann. 412, and Villavaso vs. Barthet, 39 Ann. 247.

Plaintiff’s argument that the question must be tested under the general law governing and determining the obligations of common carriers is grounded on the provisions of Article 244 of the Constitution, which reads:

“Railways heretofore constructed, or that may hereafter be constructed, in this State are hereby declared public highways, and railroad companies common carriers.”

Without deciding that street railroad companies are not common or public carriers, in the genera] sense of the term, we feel very certain that they were not within the contemplation of the convention in adopting that article.

As streets of a city are, and have at all times been known to be, public highways, it cannot be supposed that because railroad tracks were laid thereon it required a constitutional declaration to the effect that they were public highways.

But, construing that article in connection with Articles 243, 245 and 46 of the same Constitution, it is manifest that the article was not in ■ tended to have the slightest reference to street railways, and that as to them the municipal power to regulate, manage and control their construction and operation was not intended to be affected, altered or 'modified by any provision of the Constitution.

Article 243 recognizes the general power of building railroads in the State and of connecting them with railroads of other States; and regulates the manner of one road intersecting another, and of transporting each the other’s passengers, etc., without delay or discrimination.

Article 245 requires all railroad corporations doing business in this State to have and maintain public offices in the State for the transfer of stock and for the transaction of other dealings connected with their stock.

It requires no argument to shovsr that in all these references lo railroad corporations the convention did not intend to include street railroads.

But the intention to leave the subject matter to the municipal-authorities, to which they had always been relegated, is removed beyond the domain of discussion by Article 46, which provides :

“ The G-eneial Assembly shall not pass any local or special law on the following specified objects : * * * Authorizing the construction of street passenger railroads in any incorporated town or city.” * *

Now, as no legislation has yet been enacted in furtherance of any of the articles above referred to, so as to subject street railroads to the same rules, it is absolutely safe to conclude that nothing therein contained can fairly be construed as impairing the exclusive control of the city of New Orleans over all the street railroads heretofore constructed or that may hereafter be constructed within her limits, and that such power includes the right of fixiDg the tariff of fares to be charged for the transportation of passengers.

No one is heard to complain of the act of the city in fixing the maximum rate which can be charged for fare on all the street railroads, including the defendant, which are now under operation in the city. The complaint would be as fruitless as is that of plaintiff in the present controversy.

It is an undeniable proposition that the authority of the City Council in the premises is as effectual and binding as would be a similar provision emanating from the Legislature itself. •

Now, in our examination of the numerous authorities quoted by counsel, and in which unreasonable discriminations made by common carriers were rebuked and avoided, we find that none of the acts complained of had any direct or indirect legislative authority, but that, on the contrary, they antagonized either the general or common law governing the obligations of common carriers, or some special law applicable to the subject matter.

The regulation which is here charged to be an unreasonable discrimination, far from being violative of a special law, is directly sanctioned by legislative authority. More than that, it is embodied in and forms part of a solemn authentic contract between the city and the defendant company. And the Court is urged to cancel and abrogate a contract which the city had the undisputed power to make, and in a proceeding in which she is not even a party.

According to the contract, the established rate of charges for all persons is ten cents between Canal street and Carrollton each way, the exception being in favor of actual residents above Napoleon avenue.

Hence it follows that if any unreasonable discrimination can be charged to the scheme, it must be attributed to the exception, and not to the general rule; and, therefore, the judgment rendered could not benefit plaintiff, but would materially injure a class of people which the city intended to protect.

It was unquestionably within the discretionary power of the City Council in regulating the defendant’s road to consider that, as the commercial centre of the city, the great majority of churches, schools, banks, courts and other institutions were clustered iu the neighborhood of the centre of the city, and almost all below Napoleon avenue, it was simply an act of justice to actual residents above Napoleon avenue in the pursuit of their daily avocations and for other equally necessary purposes to enable them to reach the central portion of the city with the same facilities and at the same cost which were afforded to all other residents of the city.

It is settled in jurisprudence that all discriminations are not unjust, unreasonable or oppressive, and that they are, therefore, not all reprehensible.

In the case of Hays vs. Pennsylvania Co., 12 Federal Reporter, p. 311, cited by plaintiff, it was said: But what are unjust and unreasonable discriminations ? No rule can be formulated to apply to every case that may arise. It may, however, be said that it is only where the discrimination enures to the undue advantage of one man in consequence of some injustice inflicted on another, that the law intervenes for the protection of the latter. Harmless discrimination may be indulged in.”

A similar distinction is made in another case cited by plaintiff, wherein the Court said: The common and equal right is to reasonable service for a reasonable compensation. Neither the service nor the price is necessarily unreasonable, because it is unequal. The question is not merely whether the service or price is absolutely unequal, in the narrowest sense, but also whether the inequality is unreasonable and injurious.” * * * “ This question may be made unnecessarily difficult by an indefiniteness, confusion and obscurity of ideas that may arise when the public duty of a common carrier and the correlative common right to his reasonable service for a reasonable price are not clearly and broadly distinguished from a matter of private charity. If A receives, as a charity, transportation service without price, or for less than a reasonable price, from B, who is a common carrier, A does not receive it as his enjoyment of the common right; B does not give it as a performance of his public duty; C, who is required to pay a reasonable price for a reasonable service, is not injured, and the public, supplied with reasonable facilities and accommodations on reasonable terms, cannot complain that B is violating his public duty. There is in such a case no discrimination, reasonable or unreasonable, in that reasonable service for a reasonable price [is given], which is the common right.” McDuffee vs. Railroad, 52 451, 452. See also 47 Pa. St. 340; Shipper vs. Pa. R. R. Co., Railway and Corporation Law Journal, Vol. 1, No. 15, p. 339; Schwarz et al. vs. Baltimore Gas Light Company, Wood’s Railway Law, p. 565, Sec. 197.

So in this case, if we subject the act of the city to the test of the general law on the subject of discriminations, as though she herself owned and operated the road, we find that plaintiff and all other persons have a reasonable service at an avowedly reasonable price, and that the difference made in favor of actual residents above Napoleon avenue is simply an act of liberality, resting on a sense of justice and fair play, to a class of people who are all treated alike in the matter of that service, and who would, in default of that exception, be placed at a great disadvantage from all other residents of the city. Hence, we conclude that under those circumstances the public cannot complain, and that plaintiff’s action cannot be maintained.

Judgment affirmed.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 10,157.
    George W. Kearns, Curator, vs. Mrs. A. S. Collins.
    A sale "under an assessment for taxes of 1868, iu the name of a deceased person to whom the property did not heloDg at the time, is without effect, and no judgment subsequently rendered on monition can impart any validity to such sale. The law in fore© then required the assessment to he made in the name of the actual owner.
    Prescription by which tax sales may be validated, or which debar from action to avoid such sales, does not run againstjincapacitated persons.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      James H. Guthrie for Plaintiff and Appellee :

      a) A sale by a constable, in parish of Jefferson, under a writ of ft. fa. over 90 days old, not returned within 30 days from its date, is null and void. R. S-, Sec. 635; Graff vs. Moylan, 28 Ann. 75; Jacobshagen vs. Moylan, 26 Ann. 735.

      (b) Sections 8 and 9 of Act 57 of 1867, providing summary proceedings for the collection of taxes, not being expressed in the title, are unconstitutional. Art. 118, Const. 1864; Succession of Irwin, 33 Ann. 69.
    (c) Putting down the name of a fictitious person oil the assessment roll, obtaining judgment against another non-entity (one who has been dead for thirteen years), is not an assessment of property, and a sale under such a judgment of property of an interdicted person, whose title has been duly registered for fourteen years previous to said proceedings, is an absolute nullity, which neither prescription or monition can cure. Hickman vs. Dawson, 35 Ann. 1087; Hague vs. Boagni, 32 Ann. 912; LeBlanc vs. Blodgett, 84 Ann. 108; Guidry vs. Broussard, 32 Ann. 925; Stafford vs. Twitcbell, 33 Ann. 526; 28 Ann. 670, Dissenting Opinion, Justice Wiley. As to prescription not running against an interdict. Barrow vs. Wilson, 39 Ann. 409: Same Case, 38 Ann. 209-216: C. C. 3522 and 3554; Veilet vs. Berlanger, 6 Ann. 111. As to monition and its effects. Fix vs. Dierker, 30 Ann. 175; Roberts vs Zansler, 34 Ann. 205; Woolfalk vs. Fonbene, 15 Ann. 15 Dodman vs. Barrow, 10 Ann. 193; Kent vs. Leonard, 38 Ann. 809.

      (d) One evicted from property has only a personal action and not a real action for reimburse- ' ment of taxes actually paid out by him. 2 La. 92; and has no right of action for taxes paid by former occupants between whom and said evicted party there is no privity.

      George L. Bright for Defendant and Appellant.
    Ho syllabus; hut cited the following authorities: Acts of 1867, Sec. 9, p. 115; Carter, Congreve et al. vs. City of New Orleans, 33 Ann. 816; Brown vs. Learned, 38 Ann. 870; City of New Orleans vs. FergusoD, 28 Ann. 240; City vs. Stewart, 28 Ann. 180; Lewell vs. Watson, 31 Ann'. 591; Roberts vs. Zansler, 34 Ann. 208; R. S*, Sec. 2376, 2379; Act 105 of J874, Sec. 5; Art. C. C. 3543; McMillenvs. Anderson, 95 U. S. Rep. 40.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a petitory action.

The plaintiff, as curator of the widow of Joseph Allen, interdicted in January, 1867, claims the ownership of certain real estate, once situated in Jefferson City and now in New Orleans. He alleges that it was donated to her by her husband in 1856, anterior to tlieir marriage, tlie aet being recorded the next day. He avers that the property has never been alienated by her, and is in possession of the defendant, who pretends to be the owner of it.

The defence is that the defendant purchased the property in 1884, at the probate sale of her husband’s estate, and that he had a valid title to it, for having acquired it, in (1872, from Caulkins, who had bought it at a tax sale made in May, 1870.

In support of her title, the defendant urges that the sale was made in the manner directed by the charter of Jefferson City, to enforce the payment of taxes ; that the sale was validated by Act No. 101 of 1873 ; that the assessment made in the name of Ann May was legal; that, if it was informal, the irregularity was cured by a monition duly homologated; that the action is barred by the prescription of ten, five, three and two years; that should the plaintiff recover, the defendant is entitled to the reimbursement of taxes paid since on the property.

Prom a judgment in favor of plaintiff and allowing a fraction only of the taxes claimed, defendant appeals.

The record shows that Joseph Allen, who had purchased the property from Kohn, in 1849, donated it to Ann Hewitt May, in 1851, previous to their marriage, under the condition that, should either die without issue of their marriage, the survivor would own the property • The act of donation was properly and duly recorded in the conv eyance office, of the parish of Jefferson, shortly after its execution, and the parties married.

In May, 1855, Ann H, May, wife of Joseph Allen, departed this life. Her succession was opened, and on proof that she had died leaving no issue of marriage (with her' husband), he was recognized as the owner of the property and was put in possession.

In November, 1856, Joseph Allen, being about to marry Widow Charzotte, born Clarie, donated to her the property in dispute with the stipulation that, were she to die without is9ue of their marriage, the property would revert to him. The act of donation was recorded in the conveyance book of the recorder’s office, of Jefferson parish, in November, 1856, and the parties married.

In May, 1860, Joseph Allen died without issue. In January, 1867, his widow was interdicted and placed in an insane institution, and the plaintiff was appointed her curator.

It appears that the lot in question was not assessed in the name of Ann H. May until a year after her death, and the assessment for the taxes of 1868 was made in the name of Ann May, and was changed only after the sale to Collins.

The only matters to be considered, in order to determine tlie question of ownership, are:

1. Whether the assessment of the property for'the taxes of 1868, in the name of Ann May, was sucli as could justify » divestiture by a sale to pay those taxes;

2. Whether defects in the assessment, or proceedings for the sale, were cured by prescription or monition ; and,

3. Whether the action to recover is barred by time.

It is proper to recall that Ann H. May, afterwards Mrs. Allen, died in 1855 ; that the property then reverted to her husband and donor; that in 1856 title to it was made by liim to Widow Charzotte, who next became his wife; that the act of donation was duly and seasonably recorded ; that in 1867, the second Mrs. Alleu, then a widow, was interdicted, and that, when the property was assessed in 1868, in the name of May, the latter was dead and had no title to it; that the title of Widow Charzotte, to which it then belonged, had been on the public records, or archives, for some thirteen years.

The law in force at the time of the assessment, it is not denied, required real estate to be assessed iu the name of its owner.

In a number of oases, tax sales have been annulled when tlie property bad not been thus assessed, and had been sold to pay the taxes levied on it. This was done on the nrinciple, well recognized and indisputable, that the validity of tax sales is to be tested under the laws in force at the time.

In Stafford’s case, 33 Ann. 526, the Court held that when an assessment was void, tlie sale was a nullity.

This doctrine was followed in other eases reported in 32 Ann. 912, 925; 34 Ann. 108; 38 Ann. 400; 26 Ann. 730; 35 Ann. 1086; 30 Ann. 175; 28 Ann. 538. See authorities in opinions.

The ruling in Kent vs. Brown, 38 Ann. 802, cannot be invoked successfully. There exists uo parity between the facts involved in tlie two cases, and the propositions of law a,re dissimilar. The decision stands on the exceptional circumstances of the case.

It is, Therefore, apparent, as Ann H. May died in 1855 and her title then passed to Alien ; as the title to the property made in 1856 by the latter in favor of Widow Charzotte was on the public records from 1856 and upwards, the assessment in 1868, in the name of Ann May, is illegal, and tlie sale of the property is an absolute nullity.

The various prescriptions pit aded cannot avail, as, previous to and at the time of the sale, Widow Charzotte, next Widow Allen, was interdicted, and that such prescriptions do not run against incapacitated persons. Barrow vs. Wilson, 38 Ann. 209; Ib. 39 Ann. 409.

• The homologation of the monition obtained with a view to cure defects in the tax sale proceedings, cannot avail the defendant where the irregularity is radical.

In Fix vs. Dierker, 30 Ann. 175, it was held that a tax sale under an assessment, in the name of a deceased person, to whom the property did not belong actually, is without effect, and no judgment’subsequently rendered on monition, can impart any validity to such sale.

The Court adhered to the rule that, where there is no assessment or judgment against the true owner, there can be no valid divestiture. The defect is fundamental and is not curable by monition.

See, also, Woolfolk, 15 Ann. 15; Roberts, 34 Ann. 205; Dodman, 10 Ann. 193.

Neither can defendant find relief by invoking the late ruling of this Court in the matter of Orloff Lake praying, etc., for the plain reason, that the pretended sale, in the instant case, was made in 1870, and the law on which the ruling was based was passed in 1884, and refers only to sales made under its provisions.

Under the circumstances of this case, we therefore hold that the title made to Collins and his vendor is a nullity, and that the property claimed belongs to the interdicted, Widow Allen, represented herein by Kerns, her curator.

The only matter remaining for consideration is the claim for reimbursement for taxes which th.e defendant claims to have paid on the property.

There is no evidence to show that she paid all the taxes. The certainty, as the bills show on their faces, is that they were paid by her husband or his estate. Nothing establishes that she represents either of these, and that payment’to her would'discharge the debt.

The District Court, however, condemned the plaintiff to pay $77 52 for city and State taxes, proved to have been paid by the defendant. The allowance is proper.

Judgment affirmed.

Rehearing refused.


author: Poché, J.

text:
    No. 10,094.
    Henri Larquié vs. His Wife.
    A party wbo resides in this State with the intention of fixing here his domicile for an indefinite peiiod of time and engages in active business pursuits for a number of years acquires a domicile in the place in whioli he has thus lived, which becomes the conjugal domicile, if, in the meantime, he contracts marriage even in a foreign country with a wife, whom he brings to his residence and who lives here with him a number of years.
    The wife who visits and sojourns in her native country and refuses to return to the domicile thus established is amenable to the courts of this State in an action for separation from bed and board by the husband for her alleged abandonment of the conjugal domicile.
    APPEAL from the Civil District Court, Parish of Orleans. VoorMes, J.

      Ifrank J). Chretien and Blanc & Butler for Plaintiff and Appellant.

      Barry E. Ball and J. N. Wolfson for Defendant and Appellee.
   The opinion of the Court was delivered by

Poché, J.

Resisting her husband’s demand for a judgment of separation from bed and board predicated on her alleged abandonment of the conjugal domicile, the defendant urges the following reasons substantially:

1. That the conjugal domicile is not in Louisiana, but in Prance, where the marriage was contracted in June, 1872, and where the spouses resided for several years, upon the distinct promise of the plaintiff to continue to reside in that country.

2. That when she left the temporary abode in New Orleans, where the couple had resided from 1876 to 1881, it was with the permission and at the request of plaintiff, who sent her to Prance for reasons of her failing and impaired health.

3. That, under her present condition of health, in connection with climatic influences prevailing in New Orleans, her life would be endangered by a return to the city.

Plaintiff appeals from a judgment which rejected his demand.

The testimony is very conflicting, but the preponderance of the evidence establishes to the entire satisfaction of the judicial mind the following facts:

Plaintiff, who is a native and is yet a citizen of Prance, came to New Orleans in the year 1846, since which time he has been continuously engaged in active business pursuits of various hinds in this city, where he has continuously resided, save and except two years, during whicli he lived in France, immediately preceding and following the date of his marriage.

In 1873 he returned to this country with his wife, with whom he lived here until 1875, when they, together, made a trip to France, whence they returned in 1876, bringing with them their first child, whom they had left in Fiance in 1873. Their second child was born in this city, where the two spouses lived together, “ keeping house,” until 1881, when the defendant went to France, with the consent of her husband, and where she has since sojourned, notwithstanding reiterated requests and demands from him to return to their home in this city. To these demands she has persistently resisted,.under various pretexts — that of ill health being the_reason given to the husband and to the court.

During his long residence in this country plaintiff has, at divers times, been the lessee of a portion, and is now the lessee, of all of the public markets of the city of New Orleans, and since the year 1880 he has also filled the functions of president of a street railroad company in this city.

In his contract with-the city, in authentic form, plaintiff represents himself'and is dealt with as a resident of New Orleans; and the nature of the contract itself requires a personal attention and control which a resident alone can give. The same may be said of plaintiff’s functions as president of a city railroad company. On the occasions of two recent trips which he made to France, one in 1882 and the other in 1884, it became necessary for him to obtain a leave of absence from the board of directors of the railroad company.

On both of those visits to his native country, but more particularly in 1884, plaintiff used every means within his power, including the assistance of other persons, to decide and induce his wife to return with him to his home in this city, but to no avail.

In the examination of the record due consideration has been given to testimony and other evidence showing that plaintiff has always had' and manifested his intention and cherished the hope that if he succeeded in retrieving his almost lost fortune, whicli he had earned in this city, he would, in the remote and uncertain future, return to live and end his days in his mother country, on property which he purchased there in 1872.

But the proof is conclusive that on his return from France in 1873 he resumed his permanent residence, and established his fixed domicile for an indefinite time in this city, where he owns considerable property, and which thus became the conjugal domicile. Hence the jurisdiction of .this case properly and legally belongs to the courts of this State. C. C. 38, 42, 43; Verret vs. Bouvillain, 33 Ann. 1305; Mullen vs. Hilton, 13 Ann. 1; Gravillon vs. Rickarts, 13 La. 297; Dugat vs. Markham, 2 La. 35; Chrétien vs. Chrétien 5 N. S. 61.

Respectful consideration has been given to the conclusions reached by a competent court in France, in a suit for separation instituted in that country against the plaintiff herein by his wife, and in which it was held that the conjugal domicile was in that country. But it is very clear that the French tribunal did not have before it the testimony viiioh is contained in the record before this Court. But, at all events, the question presented here must be disposed of in accordance with our laws and our jurisprudence, under which it could never be held that plaintiff had not a fixed domicile in Louisiana at the time of bringing this suit; and hence that domicile must be held to be that of the wife also.

On the other points of contention the record shows that defendant did have the permission and consent of her husband to return to France in 1881, and that he then believed that the trip was necessary to her health. And there is testimony in the record to the effect that she has not yet entirely recovered her former robust health, and that in the opinion of her physician there, the climate of Louisiana would not have a beneficial influence on her peculiar ailment. But on that point the evidence in the record is overwhelming in support of the proposition that her health would not suffer by a return to this city, and, above all, that her condition of health, such as it may be, is not the reasoh of her refusal to come back to her husband’s domicile.

She is entirely actuated by other reasons, which it is not necessaiy to mention, but which have no force in law, and which cannot justify her persistent refusal to return to the conjugal domicile. C. C. 120; Neal vs. Her Husband, 1 Ann. 315; Hahn vs. Darby, 36 Ann. 70.

In the latter case, Article 120 of the Civil Code was construed by this Court so as to require the wife to follow her husband to a new conjual domicile which lie proposed to establish and to which she had never been. A fortiori will the rule apply to a case in which it appears that the husband has resided over forty years in a place, to which he brought his wife fifteen years ago, and in which she lived with him at the conjugal domicile for seven years.

The record and the law governing the matter clearly lead to the conclusion that the case is with plaintiff, and that he is also entitled to the custody of the children born of the marriage.

All the formalities prescribed by Article 145 of the Civil Code having been complied with, the proper judgment to be rendered is one of separation from bed and board.

It is, therefore, ordered that the judgment appealed from be annulled, avoided and reversed ; and it is now ordered that plaintiff do have and recover a judgment of separation from bed and board against his wife, the defendant herein, with the custody of the children born of their marriage, and for costs in both courts.


author: Todd, J.

text:
    No. 10,165.
    State of Louisiana vs. John Wymberly.
    To constitute perjury, it is essential that the false swearing should have been committed with respect to some matter over which the Court had jurisdiction.
    So where the alleged false oath was taken before ajustice of the peace, and the oath administered by him in an examination by or before such justice in a prosecution for burglary, such false swearing could not be perjury, because for such a crime, and others punishable with death or imprisonment at hard labor, ajustice of the peace in the country parishes is without jurisdiction to conduct such examination. This proceeding is exclusively committed bylaw to the district judge, and he cannot delegate his authority to a j ustice of the peace. Where the false swearing is not perjury, a charge of subornation of perjury cannot be based upon it.
    A PPEAL from the Second Judicial District Court, Parish of Bien ville. Drew, J.

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

      Patterson & Dorman for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

The defendant, Wymberly, charged, by information received, with subornation of perjury, was tried and convicted.

He presented a motion in arrest of judgment, which was sustained, and the State, through the District Attorney, appeals.

The material facts relating to this prosecution are these:

Wymberly, the defendant, and one Mag Hatchet were arrested on the charge of burglary, and taken before one Sam Barksdale, justice of the peace of said parish.

The justice proceeded to take and reduce to writing the testimony of witnesses appearing before him in relation to the commission of the crime charged.

Among the witnesses so appearing and testifying was one John Henderson, who is charged to have given testimony on a material point in favor of Wymberly, and that in doing so, to have committed willful perjury by the inducement and procurement of Wymberly, and that Wymberly was thereby guilty of subornation of perjury, which is the charge contained in the information before us, and on which he was tried and convicted, as above stated.

The motion in arrest, and under which sentence wag arrested, as above stated, was, substantially, on the ground:

That the justice of the peace who administered the oath to the witness, Henderson, charged to have sworn falsely, and before whom the investigation was had touching the charge of burglary preferred, was without jurisdiction over the subject matter of the inquiry before him, and, consequently, without legal authority or capacity to administer the oath j and that no prosecution for perjury or subornation of perjury could be grounded on an oath thus administered by incompetent authority and touching a matter over which the court or the judge or justice therein presiding had no jurisdiction ratione materia.

Art. 126 of the State Constitution provides :

“They (justices of the peace) shall have criminal jurisdiction as committing magistrates, and shall have power to bail or discharge in cases not capital or necessarily punishable at hard labor.'"

Section 1010, R. S., makes it the duty of a justice of the peace, where an accusation is made on the oath of a credible witness to cause the accused to be arrested.

When arrested, if the offence charged be one that may subject the accused to capital punishment or imprisonment at hard labor, he must “be brought before the district judge of the parish in which the offence may be chai’ged to have been committed, and be proceeded on and examined according to law.”

If not so punishable, then it is the duty of the justice “ to examine, on oath, the witnesses, and reduce their depositions to writing.”

Section 2058, R. S., contains similar provisions.

It is plainly inferrable, from these constitutional and statutory provisions, that the power of a justice of the peace to hold and conduct preliminary examinations in criminal prosecutions, is limited to cases where the offence charged is not capital and not punishable with imprisonment at hard labor. Proceedings before such officers which Telate to such crime or crimes so punishable, and testimony taken and oaths administered, must be viewed as coram nonjudice, and, consequently, without legal effect or significance.

It is, however, urged by counsel for the State that this examination before the justice in the prosecution for burglary, referred to, was authorized by Act No. 45 of 1886.

This act is entitled, an act “to re-enact Sections 1015,2063 and 3951 of the Revised Statutes, to provide for the appointment of a property clerk,” etc.

Section 1015, R. S., provides, in substance, that when a party charged with an offence is brought before a justice of the peace, that this officer shall take the depositions of the material witnesses on the part of the State, and also take the recognizances or bonds of the witnesses for their appearance before the district conrt. If this section could be construed as relating to or warranting preliminary examinations before justices of the peace, it must be construed in connection with the article of the Constitution and the sections, R. S., cited above, limiting their authority, in suclCproceeding, to cases not capital and not punishable by hard labor.

Section 2063, R. S., is but a repetition of Section 1015, with the further provision requiring the justice to deliver to the clerk of the court any stolen property or weapons taken from the parties accused’ or forged bills, or notes, etc., produced on their trial.

Section 3951 is but a reproduction ipsissimis verbis of Section 2063, R. S.

Act 45 of 1886 is merely a re-enactment of the three sections above enumerated and a consolidation of their several provisions iuto one act, with no enlargement whatever of the powers of the justices or committing magistrates over those expressed in the said sections.

In other words, the act gives no sanction whatever to the counsel’s contention, that by its terms, the restrictions imposed by the statutes first above cited in the jurisdiction or power of justices of the peace, touching preliminary examinations, had been removed, and that such officers never had authority to extend such examinations to all and the gravest offences.

Finally, it is contended that the examination in proceeding before the justice of the peace, in which this peijury and subornation of perjury were alleged to have been committed, was conducted by the order or direction of the district judge, and was thus legalized.

It is hardly necessary to say that if the law did not vest the justice of the peace with power to conduct such preliminary examinations, the judge could not confer no such warrant. Besides, the law imposed this duty, as relates to the investigation and prosecution of felonies or the graver offences, on the judge himself exclusively, and authority to perform such duty was denied or withheld from inferior judicial officers, such as justices of the peace, in the country parishes. This shows that the order or direction of the judge in this instance was not only without authority, hut in contravention of law.

Holding these views, we think the trial judge was right in arresting the judgment in the prosecution under review, and the judgment appealed from is, therefore, affirmed.


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

text:
    No. 10,181.
    State of Louisiana vs. Liverpool, London and Globe Insurance Company.
    The very object of Art. 206 of the Constitution was to remove license taxation from the operation of Art. 203 requiring all taxation to be equal and uniform, and to authorize require license-taxation to be graduated.
    The term graduate ” is a word of elastic meaning involving infinite variety in the methods and standard of graduation wliich may be adopted.
    The Constitution simply requiring the General Assembly to graduate license taxes without indicating any particular method or standard of graduation, has devolved on the Assembly the function of determining what method shall be adopted.
    A law which divides insurance companies into several classes according to the amount of premiums received, and imposes on eacli class a different license-tax, greater upon those receiving a larger amount of premiums than on those receiving less, complies with the requirement of graduation.
    The charge that smaller companies pay a larger tax in proportion to their premiums than the larger companies, may impugn the justice, but not the constitutionality of the law, the constitution not declaring that the graduation shall bo in exact proportion to the business done.
    A foreign corporation is not required by the Constitution to be licensed by a different mode from that provided for home corporations. The Constitution is not imperative, but simply permissive of such mode. Such corporation cannot complain that the license claimed is based ou the system adopted for home organizations.
    PPEAL from the Civil District Court for the Parish of Orleans. liightor, J.

      John McEnery and Walter B. Somnerville for State, Appellee.
    Sec. 7 of Act. Ho. 106 of 1886 is graduated in accordance with Art. 206 of the Constitution, and the license taxes imposed on all companies and persons falling within any given class are equal and uniform. State vs. Chapman & Generally, 35 Ann. 76; State vs. O’Hara, 36 Ann. 94 ; State vs. Schonhausen, 35 Ann. 42.

      E. W. Huntington and Horace L. JDufowr for Defendant and Appellant.
    The license taxation on insurance companies fixed in Sec. 7, Act. No. 10), 1886, is violative of Articles 203 and 200, Constitution of Lonisiana 1879.
    In interpreting a law or an article of a constitution, regard must he had to its object, and the mischief it was'intended to remedy. 5 Ann, 516 ; C. C. 18 ; 6 Ann. 386 ; 9 Ann. 165; 12 Ann. 777,154 ; 11 Ann. 124 ; 12 Ann. 699.
    Reference to the history of a law or article of a constitution can he had to ascertain it» meaning. 11 Ann. 439 ; 16 L. 268 ; 5 F. S, 140; 5 Ann. 516.
    Prior to the Constitution of 1879 the Legislature constantly sought to proportion and graduate license taxation according to the quantity of business done, and by other equitable standards and proportionate apportionment, but were prevented by the courts declaring such graduations inadmissible under the then existing constitutions. 23 Ann. 449, 464 ; 94 Ann. 112; 26 Ann. 141; 28 Ann. 102. To obviate this difficulty Art. 206 of the present Constitution provided for a “graduation.”
    Where a new system of law is introduced in the State, the terms used in it are to be inter' preted by the jurisprudence from which it is taken. 16 L. 394 ; 30 Grattan, 477.
    The system of a graduated license tax is new in this State and is taken from other states, where it has long prevailed, and to which we must look for the meaning of the word “ graduation " — which means a proportionate scaling of the license tax on a basis “ which is reasonably fair and just.” 1 Pacific Rep. 204 (Kansas); there must be a “rational ” basis “ and the apportionment of taxes accordingly.” Cooley on Tax. Note to p. 13910 Pacific Rep. (Cal.) 113; 31 Iowa, 106. In “ graduation ” there must be “an intendod approximation to equality, and if the assignment is fair and judicious, or nearly attains it, as is perhaps practicable in a license law.” 23 Grattan, 473; 36 Ann. 93.
   The opinion of the Court was delivered by

Fenner, J.

The defendant resists the claim of tbe State to the license-tax due under the Act No. 101 of 1886, on the ground that said act is unconstitutional, because the license taxes thereby imposed are not equal and uniform and because they ave not graduated in tbe manner directed and required by tbe Constitution of 1879.

Art. 203 of the Constitution provides that '• taxation shall be equal and uniform,” etc. Art. 206 provides : ‘‘ The General Assembly may levy a license tax and, in such case, shall graduate the amount of such .tax to be collected from the persons pursuing the several trades, professions and callings.”

1. It is very certain that the license taxes imposed by tbe Act of 1886 are not “ equal and uniform ;” if they were, they would clearly be unconstitutional.

Tbe meaning of the requirement of equality and uniformity as applied to license taxation was settled by numerous decisions under the Constitution of 1868, from one of which we quote : “ The Constitution (of 1868) requires that a license tax as well as a tax on property shall be equal and uniform. To be equal and uniform the tax imposed must be tbe same on all who engage in tbe particular profession or calling taxed, without reference to the abilities, fortunes or successes of these engaging therein.” City of N. O. vs. Home Ins. Co., 23 Ann. 449; State vs. Endom, 23 Ann. 663; Parish vs. Gurth, 26 Ann. 140; Cullman vs. City, 28 Ann. 102.

The utterance above quoted was made in a case involving a license-tax upon insurance companies very similar to that contained in the act of 1886, the companies being divided into classes according to the amount of premiums received and a different rate of tax being required from each class.

This and the other kindred decisions above cited furnished the controlling motive which prompted the adoption of Art. 206 of the present constitution, by which license taxation is exempted from the requirement of equality and uniformity, and is not only authorized but required to be graduated.

2. The next defense is that the license taxes imposed by the act of 1886 are not “ graduated in the manner directed and required by the Constitution of 1879.”

The natural inquiry arises, what manner of graduation is required and directed by the Constitution 7 There is no provision or direction whatever. The simple requirement is that “the General Assembly shall graduate the amount of such tax to be collected,” etc.

The word graduate,” philologically considered, is one of elastic import having various meanings. Of the definitions given in the dictionaries, the one most applicable is the following: “ To regulate by degrees; to proportion; to adjust; as to graduate punishments.” Worcester’s Die.

The standards and methods of regulation, proportion and adjustment are susceptible of infinite variation. If the framers of the Constitution had seen fit to require some particular method or standard, they might have indicated and defined it; but they have not done so_ Who then is to determine what method of graduation shall be adopted 7 The Constitution has expressly and distinctly confided this function to the General Assembly.

The General Assembly has exercised it in the law before us. It has divided the companies and persons pursuing the business of insurance into several classes, according to the amount of premiums collected. It has levied upon each class a different license tax, greater upon those receiving a larger amount of premiums than upon those receiving a less.

This is certainly a graduation of the tax — a proportioning, regulation and adjustment of the tax between the different classes according to the amount of business done. The complaint is that the smaller companies, though paying a substantially less tax than the larger ones, pay a larger amount in proportion to the business done, This may be an objection to the propriety and justice of the law, but unless de-, fendant can point out some provision of the Constitution requiring that the tax shall be graduated in exact proportion to the amount of business done, it is of no avail as an attack upon the constitutionality of the law. The Constitution has laid down no such rule, and it is n ot in our power to do so.

Such a rule would prevent all classification whatever, and would convert the license taxation into a simple income tax which was certainly never intended.

The method of graduation here presented was the one attempted by the General Assembly under the Constitution of 1868, the judicial condemnation of which was the evil intended to be remedied by Art. 206 of the present Constitution. It has been one of the methods pursued in all the license laws adopted under the latter Constitution, and everything indicates that it was one contemplated by that instrument.

We have had occasion heretofore to consider the nature of tire power conferred on the Generally Assembly by Article 206 and have reached conclusions analogous to those now announced. State vs. Chapman, 35 Ann. 76; State vs. O’Hara, 36 Ann. 94; State vs. Schonhausen, 37 Ann. 42; State vs. Marrero, 38 Ann. 397.

The case is one eminently requiring the application of the principle recently announced by us : “That the judicial, recognizing the right and duty of the Legislature to construe and determine primarily its own power under the Constitution, will never overrule that determination unless clearly convinced of such radical inconsistency between the law and the Constitution, that the two cannot be reconciled.” Planting Company vs. Tax-collector, 39 Ann. 465.

Judgment affirmed.

On Application por Behearing.

Bermudez, C. J.

Counsel for the company now rely for the first time on Art. 217 of the Constitution to show that the Constitution requires equality and uniformity in license taxation. Although made late, it will be considered.

The article is not imperative, but only permissive. It does not. require that corporations, companies or associations organized or domiciled out of this State and doing business therein, be licensed by a mode different from that provided for home corporations or companies.

It simply provides that such organizations may be licensed, and when they are licensed, the different modes of license shall be uniform upon a graduated sytem, as to all such corporations, companies or associations that transact the same kind of business.

There is nothing to show that the license demanded, is claimed under a mode different from that established for home corporations or companies; on the contrary, it appears that the license is the same that would have been demanded from the defendant company, if it were a home corporation. This would suffice to shut out the defendant from all complaint, for it cannot pretend that, because it was not treated as a foreign organization, it is entitled to privileges, or favors, or protection which cannot be extended to home institutions.

Moreover, whatever has been said in the opinion touching the mode of license, when different, the uniformity and a graduated system, stands in refutation of the new proposition advanced.

Rehearing refused.


author: Watkins, J.

text:
    No. 10,105.
    John B. Yates vs. Southwestern Brush Electic Light and Power Company.
    This is an action for damages occasioned to a policeman, while on duty at the New Orleans National Bank, in this city, by an explosion of a part of the apparatus appertaining to its electrical installation.
    It comes fairly within the principle of the code, that is to the effect that every one is “ responsible not only for the damage occasioned by his own act, but for that which is caused by the things which he had in his custody ” or control.
    APPEAL from the Civil District Court, Parish of Orleans. Tissot, J.

      Braughn, Bucle, Dinlcelspiel & Hart for Plaintiff and Appellee :
    1. Where plaintiff has proved the allegations of his petition, and shown a want of skill* incapacity or negligence on the part of defendant, and has proven his damages, he is entitled to recover.
    2. “ Every aet whatever of man that causes damage to another obliges him by whose fault ithappened to repair it.” C. C., Art. 2315.
    “ Every person is responsible for the damages he causes, not merely by his act, but by his negligence, his imprudence, or his want of skill.” C. C., Art. 2316.
    3 In estimating damages the court must be guided by the evidence in the record. Where the verdict of the jury is not manifestly excessive, and whore the court can feel no certainty that any modification thereof would come nearer to exact retribution, the Supreme Court is not justified in disturbing it. 37 Ann. 92.
    In such case "the verdict of the jury will not be disturbed on appeal, unless manifestly erroneous and glaringly unjust. 37 Ann. 226.
    4. Courts will not look with much respect or sincerity or good faith on litigants when they set up a frivolous defense. Such tactics operate against them in case of conflict of testimony. 23 Ann. 674.
    5. “When the testimony of a witness is contradictory, the one swearing affirmatively and giving detailed circumstances will preponderate. 26 Ann. 678.
    6. The unimpeached testimony of a disintérested witness must be weighed, and cannot be disregarded by the court. 28 Ann. 682; 27 Ann. 308.

      JE. M. Hudson for defendant and Appellant:
    1. Under the general issue, plaintiff must prove all the facts necessaiy to a recovery. Parrot vs. Edwards, 19 La. 369. The general denial is leveled against, not only the simple averment of facts, but the compound statement of facts, with legal deductions therefrom. Durham vs. Williams, 32 Ann. 967.
    2. Under the general issue, defendant may show any fact tending to prove that he is not indebted to plaintiff, as alleged. Bonnable vs. Bouligny, 111. 292.
    3. The general issue reduces Che controversy to the question of the truth or falsity of plaintiffs allegations, and the legal effect of the facts when proved. Wells vs. St. Dizier, 9 Ann. 119.
    4. The rule that “parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid instrument,” applies •—

      (a) Only to contracts which are in writing. 1 Greenleaf on Evidence, § 275.
    (&) Only in suits between the parties to the instrument.
    And it cannot effect third parties, who, if it were otherwise, might be prejudiced by things recited in writings, contrary to the truth, through the ignorance, carelessness or fraud of other parties ; and who ought not, therefore, to be precluded from proving tbe truth, however contradictory to the statements of others. 1 Greenleaf, §§ 279, 211, 171 and 204; 2 Starkio on Evidence, 575.
    5. Parol evidence is admissible to show error in dcscriptio loci etdescHptiopisonee stated in a receipt. 15 L. 311; 9 Ann. 29.
    A receipt for money is not conclusive between the parties, but is open to explanation by parol. 5 Ann, 408; 1 Greenleaf, § 305.
    6. In an action growing out of quasi-offenses, he alone is responsible, in damages, by whose fault the accident or injury was caused. C. C., Art. 3316.
    7. A party alleging want of skill or diligence most prove the same. Ko damage will be allowed on a simple charge of negligence, imprudence or want of skill, unless the same be conclusively established. Kirk vs. Eolsom, 23 Ann. 584 ; Rawson- vs. Labranohe, 16 Ann. 121.
    8. The plaintiff must make his case certain, and the burden of proof is upon him to show that the alleged injury was the result of the negligence of the defendant. Stevenson vs. R. R. Co,, 35 Ann. 499 etseq.; 35 Ann. 697, and 36 Ann. 24, both citing Stevenson vs. R. R. Co., and re-affirming this doctrine.
   The opinion of the Court was delivered by

Watkins, J.

The plaintiff seeks to recover $3000 damages from the defendant company, on account of certain injuries he received while in the performrnce of duty in the building and property of the New Orleans National Bank, situated corner of Camp and Common streets, in the city of New Orleans — he being a member of Boylan & Farrell’s police force at the time. The averments of his petition are, that the accident of which he complains took place on the morning of the 26tb of February, 1887, at the hour of 6 o’clock a, m,, and that it was occasioned by che explosion of a metal pipe, through which an electric wire passed conveying electricity into the building for the purposes of incandescent lighting, and by the force of the explosion fragments of the pipe were driven violently against his head, just behind the right ear,, whereby he was felled to the floor, stunned and senseless for a time, and from which he received serious and permanent injury.

The defendant’s answer was a general denial. The case was tried by a jury, who found for the plaintiff $2500, and the defendant has appealed.

I.

From the record we have gleaned the following facts in regard to the manner in which the aecident occurred, the causes which superinduced it, and the injuries the plaintiff sustained by it.

It appears that on the morning in question the plaintiff went on duty at the bank at 5 a. m., and about an hour afterwards his attention was arrested by an electrical illumination which appeared over the door which opens into the president’s room, and which is situated on the Camp street side of the building, facing Common street, He was standing about midway of the. floor and between this room and the desk of the paying teller. A moment afterwards a blaze was discovered in the wood work over the desk of the paying teller, which he hastened to extinguish, and while thus engaged the brass pipe, through which the electric wire connected with the electro lear, exploded, and a blow was inflicted on his head and one on his back, which was turned towards the desk.

The shock was attended with a sound like that of the firing of a pistol, and the illumination it produced had the appearance of rockets or fireworks, and it continued, at intervals, for fifteen or twenty seconds.

The chandelier in the paying teller’s apartment, into which the electric wire was introduced, was, at the time of the explosion, about twelve inches from his head.

This wire was insulated and passed through a metal pipe, and it was exploded, and the pipe also, by means of an usual exertion of electric force.

This was occasioned by a connection’that was formed outside of the bank, on some part of the pole-line, with a wire carrying a higher tension of electricity than that which fed the incandescent lamps within the bank — that is to say, there was a contact on the outside of the bank of the wire which supplied the 'incandescent light inside with a wire carrying an arc current of high tension outside. The effect of this contact was to pass the arc current into the bank, and, this current being beyond its capacity, an electrical explosion was produced, and the heat fused the metal and bursted the pipe.

In every electrical installation there is, necessarily, a safety fuse or .safety catch, which is a mechanical contrivance that interpolates into the line of electric conductors a small piece of lead wire, the effect of which is that when an abnormal amount of electricity flows over the wire of the circuit it becomes melted by the excessive heat engendered and the current is broken.

These devices are intended to secure additional safety to persons using incandescent lights.

The one over the desk of the paying teller had, in this instance, lost its cover and its internal part was charred and defaced. The metal was melted and the wood work burned. It had operated, but not in the right way. There were evidences of burning on the electro lear as well as the fuse-catch.

There is no reasonable doubt of the fact that the proximate cause of the accident was the insufficiency of fuse-catches, either in number or capacity, to break the circuit and cut off the flow of electricity from an arc wire on the outside of the bank.

The brass tube containing the insulated wire was of about one-twentieth of an inch m thickness and one-fourth of an inch in diameter, and the fragments of it which inflicted the wound on the plaintiff’s head were about two and one-half inches in length. Their edges were jagged and rough, and the metal was tarnished and discolored.

The tension of an arc current of electricity passing through a tube of such dimensions was quite sufficient to have exploded it and send the fragments agaiDst the plaintiff’s head with sufficient violence to have produced the injuries he received.

The immediate effect of an arc current of the voltoge this one appeared to have, when exercised upon an individual, would be that of a heavy blow, and might cause, at least, temporary insensibility.

From the blow inflicted there was a knot raised on plaintiff’s head, which is described by one witness as being of the size of a hen’s egg. He was stunned and felled to the floor and rendered insensible for a time. He became quite sick from the effects of it, and vomited considerably. He became, on that account, unfitted for duty, his hearing in his right ear being seriously impaired.

Since the happening of the accident, attacks, similar to those described, have occurred frequently, though at irregular intervals, and last three or four hours ata time; and the plaintiff states that he experiences from them a great pressure on tbe light side of his head,above and behind his right ear, coupled with intense pain and dizziness.

One of his medical attendants states that, upon making an examination of the plaintiff’s ear, he- discovered tinnitus — i. e., a buzzing or humming in the ear — and the ear-dium congested, which was likely to produce inflammation of the ear-drum and impair the hearing.

Having heard the plaintiff’s testimony, he gave it as his professional opinion that, while the plaintiff may be comparatively free from trouble at times, his affliction will continue during life time.

Since the accident the plaintiff has lost considerably in flesh, and has not been able to perform much work; aud, indeed, it was stated by his counsel in argument, and not disavowed by counsel of the defendant company, that on account of his being unable to perform satisfactory service he had been discharged from employment at the bank.

At the date of this occurrence he was about fifty-two years of age, but strong, athletic and in perfect hr air h. He is and has always been a laboring man. He has resided in this city ever since 1873, and has been regarded as faithful and efficient in the performance of any service assigned to him. He has a family dependent on him for support.

At the time of the occurrence he was employed at a stated salary of $45 per month — i. e., $540 per annum.

Manifestly this accident, and consequent injury to the plaintiff, was' caused by the failure of the party establishing the electric installation in the bank to provide a means, so essential to the safety of those using electric lights, as the proper fuse-catches.

The happening of such an accident as the one under consideration may frequently occur in a large city like New Orleans, lighted externally and internally by electricity, which is generated by machines of different size, and the currents of which differs greatly in tension.

Indeed, the difference in the polarity of the metals brought in contact would naturally produce combustion and explosion, at the great risk of the population and hazard of property. To pass these differing currents of electricity from the generating machines to the various customers ou the circuit and to the lamps on the streets a number of wires are employed, and they are strung on posts ; aud it is the plain duty of the persons exercising so dangerous a franchise to have especial care m their adjustment and installation, that their patrons, their servants and agents be protected from loss and danger. Such care was not taken in this instance.

The proof shows that there was provided, in the electrie installation of the bank, what was termed a switch, the purpose of which is to enable a customer who is desirous of discontinuing the current at any time to cut it off. 'But it appears that this switch was placed on the wall at the head of the stair-case leading to the second floor. That in order to reach it one had to pass out of the bank into Common street, thence to the rear of the building, and thence up the stairs. There was no ocher way of reaching it. In addition, the proof shows that neither the plaintiff, the janitor or officers of the bank had been advised of its existence, much less of its use or locality.

II.

Under the general issue the defendant sought to prove that the defendant company did not establish the electric installation in the New Orleans National Bank, and was not responsible on that account; and that if any one was responsible, it was tha Storage Battery Company, by whom the installation was erected in the bank. On this issue the testimony took a very wide range, and is, unfortunately, n conflict in many particulars. We can only cite a few of the leading features, as illustrating the view it has given us.

At the solicitation of certain persons, an officer of the defendant or Brush Company visited Rotterdam, Holland, in the summer of 1886 and purchased the right to sell and operate the De Khotinski patent for storing electricity of high tension, designed for distribution in low tension currents, for purposes of incandescent illumination.

In October of that year the Storage Battery Company was organized by the selection of a board of directors, and a secretary, treasurer, superintendent and president — all of whom, except the last, being like officers in the Brush Company.

The patentee furnished the accumulators for use as reservoirs in storing electricity.

The original contract and the company’s charter are of this general tenor as to the objects of their organization.

The officers of the New Orleans National Bank claim to have made the contract for electric lighting with the Brush Company, and state that, after the accident, they gave notice to that company, and that they at once had it inspected and repaired without protest or objection-

The bills for the installation, as well as for lighting the bank during January and February, 1887, were made out on the blanks of the Brash Company and were presented for payment by their collector.

The installation was directed by their superintendent.

During those months the Brush Company operated incandescent lights from its own generating machine.

The Storage Battery Company kept neither ledger, journal or stock book, and no certificates of stock were ever issued. Its accounts were kept in the books of the Brush Company.

There is no receipt showing payment to it of any bill for incandescent lighting.

Its minutes show that, during its brief potential existence, no contract was consummated with any company for incandescent lighting, and it had no system of its own.

The notes for the rent of No. 18 Royal street, where the accumulators were stored, were executed by the Brush Company.

The cash book of the Storage Battery Company shows that its total revenue up to the 9th of May, 1887, the date of its suspension, was $400 90. It shows that the total amount expended for material, antecedent to the accident, was $450 65.

That nothing was expended for lamps or electricity, or the power to generate it.

There are sundry invoices in the name of the Storage Battery Company for goods purchased of the Westinghouse Electric Light Company, in March and April, 1887, aggregating $10,000 in amount, while the cash book shows disbursements on that account of $398, only.

The minute book of that company shows that the president was only authorized, on the 24th of February, 1887, to contract with the Westinghouse Company for the purpose of supplying it with their system of incandescent lighting, and that on the 7th of May, following, it had not been consummated.

But, on the contrary, it appears that the Brush Company was operating the Westinghouse system in April and May, 1887, and they did not purchase from the Storage Battery Company.

These and various other indicia satisfy us that the Storage Battery Company was merely an auxiliary of the defendant; that it never owned or used any system of incandescent electric illumination, and that its only object was to furnish storage for electricity of high tension for distribution in low tension currents, for the greater convenience of the Brush Company.

On this theory the manifold incongruities in the evidence can be harmonized and reconciled. The contention of the defendant, in this regard, cannot be sustained. The liability of the defendant is clearly-made out.

III.

This action is brought under those provisions of the Code which declare that “every act whatever "of man that causes damage to another, obliges him through whose fault it happened to repair it;” (R. C. C. 2315) and “ every person is responsible for the damage he occasions, not merely by his act, but by bis negligence, imprudence or ivant of shill;” (R. C. C. 2316) and “ we are responsible not only for the damage occasioned by our own act, but for that which is caused by * * the things which we have in our custody.” R. C. C. 2317.

These articles need no elaboration. The text is concise and of easy appreciation. The instant ease comes fairly within Che principle of Barnes vs. Buren, 38 Ann. 320, and How vs. New Orleans, 12 Ann. 481, in each of which a person passing a street of this city was awarded damages for injuries inflicted by a falling wall.

The plaintiff is evidently entitled to remuneration at the hands of the defendant, but we think the amount allowed is excessive and should be reduced to $1250.

It is, therefore, ordered, jadjudged and decreed that the verdict of the jury and the judgment of the court a quo be amended and reduced to $1250, and that, as thus amended, same be affirmed, with cost of appeal taxed against the plaintiff and appellee.


text:
    No. 10,153.
    New Orleans Gas Light Company vs. Maurice J. Hart.
    The right conferred on the Gay Light Company by ins charter, to lay mains in the streets of ÜSTew Orleans, does not imply that of erecting lamp-posts at the corner of such streets and of retaining them there indefinitely, when it does uotfurnish the city with gas, and there exists no contract; between it and the city to that effect.
    The right granted by the city 10 a party to erect towers or supports to carry wires and cable for electric purposes and to remove obstructions to such erections, cannotjbe contradicted by one who does not claim a concurrent right.
    The city of New Orleans, in the exercise of its police power, has the right of removing such obstructions for public convenience and benefit, and may delegate such power.
    The police power is the light of a State, or of a State functionary, acting under delegated authority, to prescribe regulations tor the good order, peace, protection, convenience and comfort of the community, without encroaching on the like power vestedin Congress by the Federal Constitution. It is known when and where it begins, but not when and where it terminates. Under it, a man’s property may betaken from him, his liberty may be shackled, his person and life imperilled, in cases of great public exigencies.

      APPEAL from the Civil District Court for the Prrish of Orleans. Tissot, J.

      Braughn, Buck, Binlcelspiel & Hart for Plaintiff and Appellant.

      Farrar, Jonas & Kruttselvmtt for Defendant and Appellee:
    1. Upon the faets of this case plaintiff has shown no right whatever to maintain its lamp posts on the streets of the city ot New Orleans.
    2. A citjf may, in the exercise of its police powers, unquestionably make all necessary provisions with respect to the poles and wires of all telegraph, telephone, or electric light companies, within its limits, which the comfort and convenience of the community may require. W. XT. Telegraph Co. vs. Pendleton, 122 XT. S. 359; Mut. XT. Telegraph Co. vs. City of Chicago, 16 Red. Rep. 315.
    3. Only a person having a right and interest to invoke the unconstitutionally of a law, as affecting himself, his property and his rights, can plead such uu constitutionality. Moore vs. City of H. O. 32 Ann. 746.

      Blame & Butler and W. H. Bogers on the same side.
   The opinion of the Court was delivered by

Bermudez, C. J.

The object of this suit is to enjoin perpetually the defendant from removing the lamp-posts erected by the plaintiff company in this city.

In defence, it is alleged that plaintiff has no right to oppose the removal when the same is unnecessary, and that the defendant has the right to take down the posts, under the authority delegated to him by the city in the exercise'of the police power.

From a judgment dissolving the injunction issued in limine and rejecting the demand with recognition of the right to remove claimed by the defendant, the plaintiff prosecutes this appeal.

The contention in this controversy, arises under Section 5 of Ordinance No. 2145, C. S., adopted on March 8, 1887, by the City Council of New Orleans, providing for the erection and construction, upon the streets, of a system of towers, or supports, for the purpose of carrying all wires and cables, whether for telephone, electric light, telegraph, or other electrical objects, and authorizing' the defendant to put up such towers, and to remove obstacles to such erection.

The ordinance provides that, whenever in the course of construction or erection of any of said towers, or supports, it shall be found necessary to remove or displace any post, pole, awning, sign, support, or other thing in or upon the public places, banquettes or streets, the said grantee, his heirs, agents, assigns and successors shall have the right to remove said post, pole, awning, sign, support or tiling or things, and to occupy the place or places from which said removal shall have been made.

There is no dispute about the facts.

The plaintiff company has erected numerous lamp-posts at the corners of the sidewalks in the city, for the purpose of vending gas light to it and illuminating the streets and thoroughfares. The contracts for thus supplying this commodity have expired and others have been entered into for electric illumination.

Testimony establishes the danger to life and limb, in oases of fire, from contact with electric wires with the apparatus of the fire department, both when they approach buildings and when they fall upon the ground. It also shows the infinite number of electric wires strung on posts about the streets of the city for different objects, a fact so notorious that it may be judicially noticed.

The plaintiff shows no contract with the city to put up and Iceep indefinitely the lamp-posts which it has erected for the purpose of supplying light to the city, when none is furnished, for the use of the public. It alleges its charter from the State, granting it the right to lay gas mains about the streets; but it avers no authority from the State to put up and keep lamp-posts upon the public streets or corners when the community is not actually benefitted thereby.

It is a fact that the defendant claims the right, and was about to exercise it, of removing such lamp-posts erected by the plaintiff company, found at spots at which towers are proposed to be elevated.

We understand the company to contend that the defendant has no such right, because it has a contract whereby it is entitled to put up and keep the posts; because the right claimed by the defendant would arise from a prohibited monopoly; beccmse the city herself could not remove the posts and even then delegate the power.

1. It is apparent, from the charter of the company, the right to erect and keep lamp-posts on the corners of sidewalks in New Orleans was in no way granted it by the Legislature, although that of laying mains on the streets themselves was formally conferred; but the privilege of laying such mains does not imply, unless ex necessitate, that of erecting posts at those corners on the sidewalks. The mains are designed to supply gas to all consumers, whether the city, to corporations, or to individuals, and may be and are used for those purposes; but it naturally occurs, that when the city ceases to be a consumer, the right of the company ceases to have lamp-posts on its sidewalks.

Hence, it cannot be claimed that the plaintiff lias any absolute contract right to preserve its lamp-posts at those particular spots, and that the action of the municipal authorities has impaired that right, although we do'not propose to say that even the city, in the exercise of her police powers, could not, in a proper case, have done by herself what she has authorized another to do.

2. The plaintiff contends, further, that the rights granted by the city to the defendant amount to a monopoly which comes within the ban of Article 48 of the State Constitution.

To this, it is sufficient to answer, that it is a principle, well founded, that no one can be heard to complain of and charge the unconstitutionality of the grant of an exclusive right or privilege, who does not assert a similar conflicting right.

This rests upon the plain and common-sense reason that it must be to such person a matter of utter significance, who exercises that right or privilege, whether he be one that does so exclusively or not.

If it be true that the city has the right to operate the removal, what is it to the plaintiff that the city do it, by her immediate servants, or causes it to be done by some specially designated person, as in the instant case ?

3. The last objection to be considered is, whether the city could have exercised the right of removal of the obnoxious lamp-posts.

That right the city possesses as an inherent concomitant of the police power.

So far, that power has not received a full and complete definition ; but it may be said to be the right of a State, or of a State functionary, to prescribe regulations for the good order, peace, protection, comfort and convenience of the community, which do not encroach on the like power vested in Congress by the Federal Constitution.

Of that power, it may well be said, that it is known when and where it begins ; but not when and where it terminates. It is a power, in the exercise of which a man’s property may be taken from him, where his liberty may be shackled, and his person exposed to destruction, in cases of great public emergencies. See Dillon on Mun. Corp. 3d Ed. Vol. 1, p. 166-7, and Barr vs. State, 34 Ann. 424, where numerous authorities are quoted.

In a kindred case, the United States Supreme Court said: ambiguous term of police powers, regulations may be prescribed by States, for the good order, peace and protection of the community. The subjects upon which the State may act are almost infinite, yet, in its regulations, with respect to all of them, there is this necessary limitation, that the State does not encroach upon the free exercise of the power vested in Congress by the Constitution. Within that limitation, it may, undoubtedly, make all necessary provisions with respect to the buildings, poles and wires'^of telegraph companies in its jurisdiction, which the comfort and convenience of the community may require.” Western Union Telegraph Co. vs. Pendleton, 122 U. S. 359.

“ The Supreme Court of Indiana placed its decision in support of the Statute, principally upon the ground that it was the exercise of the police power of the State. Undoubtedly, under the reserved powers of the State, which are designated under that somewhat

A similar question having been presented to the United States Circuit Court in Chicago, Ill., the learned Court held, that it is entirely competent for the city authorities, unless they are bound by some absolute contract' permitting the poles and wires to stand as they are, to have them removed, and put an end to such unsightly obstructions as the poles and wire are in the streets. There must be a power somewhere, to cause them to be removed, and to regulate and control the manner in which telegraph lines shall enter, or pass through the city. Mutual Union Teleg. Co. vs. Chicago, 16 Fed. Rep. 309.

The city of New Orleans has the undoubted right which a citizen would have, and has, who would have agreed with the Gas Company to illuminate his house for a stated time, and to furnish therefor the necessary appliances. Clearly, at the expiration of the contract, the citizen could require the removal of the appliances, not only because of their appearance, their proviug an obstruction to the enjoyment of his property, but also, and particularly, if they were dangerous, some way or other. Quia placet, in the end, would be a sufficient reason for the removal.

Now, in the present case, it is clear that the city has the transmissible right to require the removal, not only because the lamp-posts are no longer needed aud used for public service, but also because the city needs the very spots on which they happen to have been erected, and it is proposed to utilize those places for other useful and beneficial purposes, and has the exclusive right, under her charter, to regulate the use of the streets and thoroughfares, within her limits.

It is unnecessary to enumerate the benefits expected to be derived, from the towers mentioned in the ordinance, the legality of which is maintained, as they are no important factors in the case.

Judgment affirmed.


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    No. 10,149.
    E. Reggio vs. D. C. McCan.
    When a plantation owned jointly "by a number of persons is mortgaged to secure a debt which they*(the mortgagors) alone owe, and the owner of the-outstanding interest in the property, not bound for the debt, convey that interest to the mortgagors, his co-proprietors, and waives in favor of their creditor his privilege and mortgage, upon the sale of the plantation to pay the mortgage, debt, the creditor, after the full satisfaction of his debt, cannot apply the balance of the price at which the property is adjudicated to the payment of a subsequent mortgage in his favor. He cannot encroach upon the mortgage and vendors privilege of this co-proprietor beyond what is required to pay the mortgage debt, for the benefit of which the waiver was made.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      Armand Pilié and Jerome Meunier for Plaintiff and Appellee :
    1. The transfer of a mortgage hy its holder to the creditor of a third person, to secure the debt1 of the latter, is an obligation with an implied suspensive condition resulting from the nature of the contract (Rev. G. C. 2026), whereby the transferrer binds himself to pay, or, at least, to abandon his right of mortgage íd payment to the transferroe, in order to enable him to enforce said right against the mortgagor in the lieu and stead, and in right of the mortgagee, in case of the non-payment of the debt at maturity by the debtor. P. Pont, Vol. 1, on Privileges and Mortgages, Nos. 472, in fine, 473 and 478.
    If the debt is then paid in full hy the debtor, the condition oq which the transferrer’s obligation was made to depend being defeated, the law will consider the agreement as never having had any existence, and release the transferrer from all liability thereunder. Rev. C. O. 2028, P. Pont, %Cbi supra.

    But if the debt is only partially discharged, then the deficiency only is to be supplied fr#m the proceeds of the ceded mortgage, for, the transferrer’s obligation having, on the payment of such shortage, been extinguished hy performance (C. C. 2130), hero tains his priority over other and subsequent mortgages for'the surplus of his claim : cessante causa, cessat effectus. 10 Rob., 155; P. Pont, Vol. l¿Nos. 479, 480.
    2. Whether the object of a contract entered into witb a view to secure the debt of a third person, be the cestion of a mortgage claim, or. of the mortgage attaching thereto, separately, or of the priority of-the mortgage only, the effects of the contract will be the same in eaeh several instance (P. Pont, on Privileges^ and Mortgages, Vol. 1, Nos 475 478), and the following special rules will govern, to wit:
    1st. The creditor who enforces the hypothecary right which has been ceded ortrans. ferredto him, acts in the lieu and stead, and in right of the transferee, and must exercise or enforce that right in the same manner'the latter would himself have done it. P. Pont, on Privileges and Mortgages, same volume, Nos. 473, 475 and 478.
    2d. The hypothecary right which has been ceded cannot he made to increase or decrease in the hands of the transferroe, and, inasmuch as it attaches to the whole and every particle of the sum it secures, whatever is left of the ¿latter, after satisfaction of the debt in reference to which the transfer was made, reverts to the transferrer. 10 Rob. 155, P. Pont on.Privileges and Morfcages, Vol. 1, Nos. 479 and480,

      Harry H. Hall for Defendant and Appellant.
   Tlie opinion of the Court was delivered bv

Todd, J.

On the 17th of March, 1880, Alph C. Reggio Louisa and Edward Reggio, mortgaged to Charles P. McCan a plantation situated in the parish of Plaquemines, known as the "Promised Land” plantation, to secure a debt of $8700.

On the same day Miss Ernestine Reggio sold to the other Reggios, the above named mortgagors, six twenty-fifths of the same plantation for $7200 and retained a mortgage to secure the payment of the price.

This act of sale contains the following stipulations (quoting):

“ It being distinctly understood, however, by and between the parties hereto, that the mortgage which the said Alph. Reggio, in conjunction with Edward Reggio and Louise Reggio, has this day granted upon the above described plantation, in favor of Chas. P. McCan, by an act passed before me notary, shall have preference, and priority of rank and privilege over the mortgage and vendor’s privilege herein granted, in consequence of the indebtedness due said McCan, arising from matters connected with the present vendor’s ownership of part of said plantation prior to this date, and the assumption of sucli indebtedness by said Messrs. Reggio and Miss Louise Reggio, to the acquittance and discharge of the present vendor.”
“And that in case of the sale of the herein described plantation, whatever amount may be due under the aforesaid mortgage granted in favor of said McCan, shall be paid in preference and without regard to the mortgage granted by these presents,” etc.

On the 17th of June, 1882, the mortgaged property was sold under foreclosure proceedings, and adjudicated to the mortgagee, Charles P. McCan, for $16,700.

Of this sum $3264.50 was applied to the payment of a prior judicial mortgage, and the residue retained by the purchaser.

On the 1st of February, 1883, the property was acquired by the defendant.

Ernestine Reggio having died before this judicial sale took place, Edward Reggio, her testamentary executor, brought suit to subject the said plantation named, and in possession of the defendant as third possessor, to the payment of $2617.80, being the balance remaining out of the proceeds of said judicial sale, after the satisfaction of the mortgage of Chas. P. McCan, and which, it is claimed, should have been applied to the payment of the mortgage of Ernestine Reggio.

The answer avers that after the payment of the prior incumbrances on the plantation and costs, there remained out of the proceeds of the judicial sale made on the 17th June, 1882, $13,435.50, and in resistance of the plaintiff’s demand it is averred.

1. That inasmuch as the respondent’s “mortgage claim of $10,817.70 rested, not alone upon nineteen twenty-fifths of the plantation sold, but upon the entire place; and inasmuch as by her act of sale Ernestine Reggio gave to said mortgage preference and priority of rank over her mortgage and vendor’s privilege, which she expressly made subordinate and inferior in rank to the said mortgage of C. P. McCan •, and inasmuch as McCan’s mortgage was given to secure a debt for which she was primarily liable in pari;; and inasmuch as her vendor’s privilege only rested upon six-twenty-fifths of said plantation, it follows that the sum of $10,817.20 should be deducted from said balance of $13,435.50, leaving for pro rata distribution the sum of $2,617.78.

2. That McCan holding subsequent mortgages upon said plantation, and Ernestine Reggio holding a vendor’s privilege only upon six twenty-fifths thereof, she is entitled to $628.26 only of said residuum, which respondent has always been ready and willing to pay, with 8 per cent per annum interest from June 17, 1882.”

There was judgment for plaintiff for the full amount claimed, and defendant has appealed.

The determination of the cause rests entirely upon the construction of the clause in the act of the 17th March, 1880, quoted above, containing the waiver or. renunciation of Miss Ernestine Reggio in favor of McCan.

Construed in conned ion with the circunistances pi’eceding and attending the execution of the actas disclosed by the record, we find no difficulty in discovering wliat we conceive to be the motive that prompted its execution, and its real meaning and intent.

The mortgage given to McCan by the three Reggios named, though given on the entire plantation, operated only on nine twenty-fifths of it, that being the extent of their interest in it. There was an outstanding interest belonging to Miss Ernestine Reggio of six-twenty-fifths of the property. Miss Reggio evidently desired that MeCan’s debt should be fully secured, and the reason why she so wished is explained in the writing, being as therein stated, that McCan’s debt arose out of matters with which she had been connected as part owner of the land, and the assumption of her indebtedness by.her co-owners and her acquittance and discharge therefrom. To remove any doubt about the sufficiency of the security for McCan’s debt, she agrees that his mortgage (quoting) shall have preference and priorty of rank and privilege over the mortgage and vendor’s privilege herein granted.” This mortgage and privilege was the first mortgage and privilege upon the interest of Miss Reggio’s in the land. She waived its rank in favor of McCan, and by this act also subjected her interest in the land to the mortgage given by her co-proprietors over the residue of the plantation, and which but for this* act would be free from the mortgage.

The only purpose of this contract on the part of Miss Reggio was to secure the identical debt for which the mortgage liad just been executed by the other proprietors. It looked to none other and certainly could not have referred to any subsequent mortgage that McCan might have on the land, and which at the time of her contract was not even in existence.' Nor did she bind herself personally for the debt, but her engagement was strictly limited by the language of the act to giving the preference to McCann’s mortgage over the portion of the land on which her own mortgage and vendor’s privilege rested. And what was the full scope of her obligation under this waiver or renunciation 1 It was simply that any deficits there might be after exhausting the mortgaged property of his debtors, should be made good out of the proceeds of her portion of the land on which her mortgage and privilege operate. This is plainly the full extent of Miss Reggio’s liability, without invoking or considering the elementary rule of construction substantially to the effect that if from the language of a written instrument any doubt can exist as to the fact of liability or extent of the liability of an obligor, it must be construed most favorably to such obligor.

The mortgage of McCan was enforced against the plantation and it was sold. The debt was then, with interest and costs, $10,817.70. The property brought $16,700. From this total was deducted $3264.50, leaving for distribution in tliejsheriff’s hands $13,485.50. Out of this McCan’s entire debt was paid, leaving a balance of $2617.80. This balance the plaintiff, as the legal representative of Ernestine Reggio, claims should be applied to paying the mortgage and privilege in favor of her estate and the defendant, McCan, contends that nineteen twenty fifths of this residuum should be applied to the extinguishment of his subsequent mortgage on the property, leaving to the plaintiff only the excess of such proceeds over such mortgages, amounting to $628.26. ■

The judge of the first instance rejected this contention or proposition and gave judgment in favor of the plaintiff for this balance or residuum after the full satisfaction of McCan’s mortgage, We think the judge was right, and his judgment is affirmed.


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    No. 10,156.
    State of Louisiana vs. Jessie Young.
    Ia considering "billa of exception winch contain conflicting recitals by counsel and by the trial judge, the Supreme Court "will be guided by the statements made by the judge.
    APPEAL from the Fifteenth Judicial District Court, Parish of St. Landy. Lewis, J.

      M. J. Cunningham, Attorney General, .and John W. Ogden, District Attorney, for the State.

      JS. P. Veaeie and Chas. W. Divroy for defendant.
   The opinion of the Court was delivered by

Poché, J.

Appellant, who was convicted of manslaughter under an indictment for murder, complains of an erroneous ruling of the trial judge made under the following circumstances :

During the examination of a State witness, who was a deputy sheriff, the district attorney asked him tlie'Jollowing question :

“Did the accused run away when he struck the man ?” To which the witness gave the following answer: “I was so informed when I first arrived at the place where the killing was done.”

The bill informs us that counsel for the accused objected to the evidence, but the recital is conflicting as to the precise objections which they urged.

That part of the bill which was drawn by the attorneys of the defendant contains the statement that the objections were that the evidence was inadmissible, because it was parol testimony, and because it was hearsay.

But the latter portion of the statement is denied by the trial judge, who declares very emphatically that the only objection urged by counsel was the ground that flight could not be proved by parol testimony.

Thus the case presents one of those frequently occurring and withal very unpleasant conflicts of statements between counsel and the trial judge.

In keeping with the well established rule, we must be guided by the statement which emanates from the judge.

We can but repeat here what we said in the ease of Waggoner, 39 Ann. 920 : With due deference to counsel, we must be guided by the bill which is the recital of the incident under the signature of the trial judge. We have had frequent occasions to announce and to follow this rule, which we feel compelled to adhere to, as long as proper means are not resorted to or provided for the purpose of adjusting differences [of that nature which arise between judge and counsel.”

Under the judge’s version, the objection remains without force, as it is clear that parol testimony is competent to prove flight of an accused in a criminal trial.

Defendant’s counsel had reserved two other bills, but as they do not refer to either of them in their brief, we pass them over with like silence.

Judgment affirmed.