author: Poché, J. Fenner, J. Poché, J.

text:
    No. 10,224.
    The State of Louisiana vs. Bernard Barthe.
    The provision of Act No. WO of 1878, wiiieh prohibits private markets within a radius of six squares from a public market, does not contemplate or justify the prohibited distance to be measured on an air-lino, but its true meaning is to prohibit private markets in all directions projecting from the nearest public markets, within a distance of six squares, over which customers would be able to walk from one market to another. A prívalo market kept within six Squares, measuring, with tho width of intervening streets, 2100 feet, over the shortest walking distance, of the nearest public, market, is not in contravention of the law.
    APPEAL from the First. Recorder’s Court, Parish of (Means. Murphy, J.

      (Jartoton Hunt, City Attorney, and Frank N. Butler for Plaintiff and Appellee:
    I.
    The Constitutional issues relating to the alleged illegal exercise of police power, exclusive grants, monopolies, and the like, presented by the learned counsel for defendant, are no longer open questions; and, we submit them, as forever settled, by former decisions of this Honorable Court, which have now hecomo the law of the State. 34 Ann. 4544; 36 Ann. 980: 38 Ann. 967. 974; 39 Ann. 439; 40 Ann. 173.
    II.
    ¿Defendant's private market being within a radius of six squares, or 2100 feet of Magazine market, is unlawfully located within the prohibited limits, as fixed by Act lío. 100 of 1878, and the seuteuces from which defendant has appealed should be sanctioned and confirmed by this Court. Act lío. 100 of 1878; Ordinance 4789, A.S.. Ordinance 3081, O. S,: C. (\ Art. 15; State vs. Berard. 40 Ann. 172.

      Branch K. Miller for'Defendant and Appellant:
    1. That by term ‘’six squares,” used in Act iío. 100 of .1878. and the private market ordinances of the City of JNew Orleans, is meant six squares, as actually found between the public and private markets in question.
    2.. That said law and ordinances have no reference to a private market situated at a greater distance than six actual squares from any public market.
    2. That said law and ordinances create a monopoly, or exclusive privilege, in favor of parties occupying stalls in the public markets, or the market lessees, as to the prohibited limits.
    4. That imprisonment as a penalty for violating a municipal ordinance, either directly or in alternative, as a mode of collecting a fine, cun not be imposed without express statutory authority. Sedgwick. Construction, Statutory and Constitutional Law, p. 473 ; Municipal Police Ordinances, §§ 147, 150,155. 158; Bishop on the Written Laws, § 22; Police Jury vs. Orleans, 34 Aim. 646. 647, 648; I Dillon. Municipal Corporations, § 339; Lancaster vs. Richardson. 4 Bans. 136; Burlington vs. ICollar. 18 la. 59; ICirmurdy vs. Mahan, 72 riL 462: 1 Dillon, Municipal Corporations. §§ 336. 353; Brunswick vs. Brieswiok. 51 Ga. 639 ; 21 American Reports, 240; State vs. Bright. 38 Anti. 3.
    ¿5. That/ said law and ordinances are illegal and unconstitutional exertions of the police power to protect or provide a revenue, 2 Dillon, Municipal Corporation, § 768; State vs, Pat amia. 34 Ann, 750 : State vs. Blasor, 36 Ann. 393.
   The opinion of t.lie Court was delivered by

Poché, J.

The defendant appeals from sundry judgments of a recorder’s court condemning him for repeated alleged violations of ordinance 4798 A. S., of the City of New Orleans, predicated on Act No. 100 of 1878, which prohibits private, markets within a radius of six squares of any public market.

Among other grounds of complaint, his counsel charges error in the manner adopted by the recorder of measuring the distance from the ■public market to the place where lie kept ids private market. 'Pile mode adopted was by measuring the distance on “an air-line” from one market to the other.

Appellant’s contention is that the distance of six squares, as contemplated in the act, must be measured by actual squares, eaeli of 300 feet, 3ind by the, width of the intervening streets, each of fifty feet, making sin aggregate of 2100 feet, on the shortest route which could he passed over in walking from one market to another.

(’omiso] for the State contend for an air-line measurement, and they argue that, their position is squarely sivpported by the decision of this Court in Berard’s case, 40 Ann. 172.

In that, ease, Berard contended that in computing the distance covered by six squares, the widt-li of intervening' streets should not be included in the measurement, thus summing up the distance between the two markets at. 1800 feet.

But. the court held that the width of the streets should be included, and that, reduced to a- measure in feet, the distance contemplated by the Legislature, by the words “radius of six squares,” meant 2100 feet.

In stating the case, the, Court said : “The inquiry is therefore narrowed down as to whether the- width of the streets is or not to be included in the distance which the. Legislature fixed when it said that private' markets shall not be kept within a radius of six squares of a public market, in this city.”

In concluding its opinion, the Court said : “The, only distance which the Legislature could have, intended was six squares, including the width of the streets; in other words, 2100 feet for both squares and streets, and not 1800, as urged by the, defendant.”

The record presented no other issue, and the Court, adjudicated on no other. The'simple issue, thus presented did not in any manner involve the question of the mode of measurement of the prohibited distance, or whether the. distance was to be measured on an “air-line” or otherwise, nor did it involve the definition of the word radius as contemplated by the, act; hence any reference to, or dictum on, that subject, in the opinion, forms no pari of the matter adjudicated in the case, and is no authority in this controversy.

Appellee’s contention, therefore, can find no judicial sanction in that or any other case; hence the question is open for discussion and adjudication.

Now, the safest mode of discovering the true and precise meaning of a statute is to ascertain its object. It is quite plain that in prohibiting private markets within a given distance of public markets the, Legislature intended to shield the lessees of public markets and owners of stalls therein from a too proximate and injurious competition from private markets. It is, therefore, clear that the distance, fixed was over a route which customers had to pass in order to reach a private market, from a, public market, or the proximity of the same.

Manifestly the law-maker knew that, in a city no one, can move, from one point to another on “an air-line,” lienee the language used, “a radius of six squares,” must have boon intended to mean a, route or distance of six squares in all directions from a public, market, such as a human being could use. An air-line, in a city necessarily passes over houses and other buildings, and can, therefore, be followed only by birds or by persons riding in balloons.

If the. Legislature intended, by its language, to trace and measure an air-line, why was the word square used. That measurement is never used in connection with an air-line. It is only used in describing distances in cities and towns as indicating a tangible, point of measurement easily counted by the existence of intervening streets. Hut in all human parlance, the measurement of an air-line is always rendered by feet, yards or miles,, or fractions of miles.

No one will be heard to say that the width of a river, or of a forest, or of a held is so many squares, but invariably the idea will be conveyed by the. use of the words: miles, acres, yards or feet, as the. case, and the. distance may be.

The very existence of the Bérard case hereinabove referred to is an earnest of the construction placed on that statute by the two courts which dealt with it. If the, law had been understood as contemplating an air-line, the contention that intervening streets should not be included could not have arisen, and if made by Bérard, the answer of the State would have been that, in an air-line there is no room for a dispute about intervening streets. And in such a hypothesis this Court would not have been called to demonstrate that there are no squares in a city unless they are divided by streets.

But the mind is not left to reasoning and conjecture alone to discover tlie real intent of the Legislature in the use, of the words under discussion. For, just at the. the time that case originated from the troubles growing- out of this very question, the Legislature enacted Act No. 136 of 1888, relative, to private markets, in which the following language is used:

Provided, no private, market shall be established within a. walking-distance of six blocks from any public, market.”

Of course that act cannot be invoked as the law of this case, but it may very fairly and properly be quoted as containing a- legislative construction of what was really meant and intended by the Act of 1878, on the identical matter.

These considerations amply justify ai>pellant’s contention, and, as the. evidence shows that his private, market was, by the only route, which a. human being could follow, at a distance exceeding six squares, or 2100 feet from the nearest public market, it follows that his defense should have prevailed.

Under the conclusions thus reached it becomes unnecessary to consider or discuss other points made by counsel in this case.

It is, therefore, ordered and adjudged and decreed that the judgments appealed from be annulled, avoided and removed, and it is now ordered that the affidavits made against the defendant herein be quashed, and that defendant be discharged with his costs in both courts,

I) I MS E NT 1 NO ( ) 1' t NIO N.

Fenner, J.

The importance of the decision in this ca.se arises, not from the particular question involved, but from its application as a precedent upon the. subject of stare decisis and the interpretation of laws. This point of view justifies me in expressing carefully the reasons for my dissent.

The only question upon which there exists any difference of opinion in this Court, is as to the meaning of the words “within a radius of six squares from any public market.”

To confine the difference still more straitly, it may be stated that all the members of the court agree that the words “ six squares,” mean standard squares of 300 feet each with the intervening streets of the width of fifty feet each, so that the words mean a distance of 2100, and (,lie clause means “within a radius of 2100 feet.” Thus the sole difference is as to the meaning of the single word, “radius,” as employed in the. Statute-

In Bérard’s case, we had this (danse of the Statute before us for interpretation, and, in an unanimous and carefully considered opinion, we hold that the term “ radius” meant a straight line drawu from the market, as a centre, to the circumference of a circle, the object of the law being to establish an equal and uniform distance in every direction within which private markets could not be established. This equality and uniformity of distance was assigned as the. reason why the term squares,” as used in the law, meant standard squares of equal length, and not squares ns they run, of varying dimensions, because, every radius of the. same circle must necessarily be equal to every other.

The decision on this point was clear and unmistakable. It seems to have, been accepted by the city market lessees, if we may judge from the plans drawn by the. City Surveyor, which exhibit circles drawn around each of the markets as indicating the private market limits. It was certainly accepted by the Legislature, which, thereafter, passed Act No. 11(1 of 1888, which, after repealing the former Statute, enacted, in its stead, a new law, differing from the, former in no respect except the solitary one that it abandons the terms “ radius of six squares,” and prescribes that the distance shall be six squares by the nearest walking route; but it nevertheless provided that the former law should continue in effect until the expiration of the existing market lease, which has not yet happened.

This legislative action conclusively indicates: 1. That the. Legislature recognized that the former law was different from the new one. 8. That it intended to continue the former law in force during the existing market lease. 8. That it intended to enact a new and different law for the future.

The present decision, reversing the opinion in the Bérard case, holds that the old and new laws a,re identical in moaning and effect, and places the Legislature in the absurd position of industriously repealing an old law and immediately re-enacting it without the slightest change, with the additional anomaly of providing that the old law should continué in effect until a future date, and then only he replaced by the new one.

Surely if ever there was a case requiring the application of the rule of atare rleoisis this is one; and, indeed, that provision of the Act of 1888 continuing the former law in force during the tenure of the present market leases, may well be considered as a new and distinct legislative sanction of the interpretation placed upon by this Court.

Nothing but a most clear and patent, error could justify the overturning of the former opinion under such circumstances, even if that could do so, in view of the subsequent legislative action.

But if we consider the proper interpretation of the word “ radius,” as used in the earlier Statute, as an independent one, it does seem to me impossible, under any sound rule of interpretation, to give it the meaning attributed to it in the majority opinion. Words form the only vehicle of expression of the legislative will. The Code directs that “the words of a law arc generally to be understood in their most usual signification,” and that, “technical terms” are to be interpreted according to their technical meaning. R. C. C. 14, 15.

But surely, independently of these rules, courts must attach to a word, used in a law some signification which either usually, or technically, or, at least, exceptionally, has been applied to it by some authority or custom. Surely courts are not at liberty to invent definitions for words. If they may, all barriers against judicial legislation are broken down. I most respectfully ask what authority or custom, general or exceptional, exists, for attributing to the word “radius,” as a measure of space or distance, any other meaning than that of a right line drawn from the centre to the circumference of a circle? T have searched-the diction¡ules without- finding warrant, authoritative or permissive, for attributing any other meaning to it. In the sciences of anatomy and botany, the term “radius ” is employed in different senses, but these, I apprend, will hardly be considered as relevant.

With duo. respect-1 maintain that the majority opinion errs, in three. l>articnlars, viz : First, in violating the correct principles of stare decisis ; second, in misinterpreting the recent Legislative action; third, in attributing to a Statute a meaning entirely inconsistent with any technical or usual signification of the words employed by the Legislature.

Tlie Chief Justice concurs in this opinion.

On Anpj.iCA'nox for Reiikarinu.

Poché, J.

The City Attorney and the counsel of the market lessee earnestly contend that we have palpably erred in our decision of this cause, and they confidently suggest that we should adopt the views expressed in “the very clear, strong and convincing * * * dissenting opinion” read in the case.

The great regard which we entertain for the, (pinions of our dissenting brothers has induced us to review the question with more than ordinary care, thought and study; but we leave the matter with increased certainty of the correctness of our previous opinion. In the heat of discussion, counsel have entirely lost sight of the fact that, all the affidavits against this defendant are predicated exclusively on Ordinance No. 4798, Administration Series, x>assed on the 17th of December, 1878, and not on Ordinance No. 3081, Council Series, adopted several years later, under the present- charter of the City of New Orleans. lienee, they naturally commit the gross error of arguing that the charge, against the defendant should be tested by the maps, which are, filed in the case, which purport-to carry out the provisions of Ordinance 3081, Council Series, and which have no reference to Ordinance 4798, Administration Series, as it originally stood.

In the, case of the State vs. Schmidt, this day decided, it- is shown that the map which was drawn to carry out the provisions of Ordinance 4798, A. S., and which was made under the careful and intelligent supervision of the then Assistant- City Attorney, specially authorized thereto, could not be fouud, and has been missing for several years. It also appears in that case that under the instructions of the. Assistant City Attorney the distance or “radius” of six squares, between every public market and all private, markets, was to be measured by the “ walking distance,” and not on the “air-line.” Such being’the interpretation given by the city to licr own ordinance, with what grace can she now appear before tih to convine; us of palpable error, for a similar construction of her own language, even without knowledge of what has since been brought to light ?

No more felicitous is the argument that the maps filed in this case were made with reference to our decision in Bérard’s case, 40 Ann. 172.

That decision was rendered in February, 1888.

One of the maps in question contains the certificate of the City Surveyor hearing the date of April 19, 1887, and the other is certified, to he a copy of the former.

Referring to the Bérard case, we have been very unfortunate, in the use of language, if any one of our utterances can he fairly construed as indicating the remotest intention 'to overrule any adjudication therein contained. Our aim was to convey the very opposite intention. We intended to sáy, and we now repeat, that we unequivocally recognize as binding on this court, and fully indorse, the. ruling of that case under the restricted issue therein tendered. Tinder that issue, which was solely to determine whether the width of intervening streets should lie included “in the distanee which the Legislature fixed when it said that private markets shall not he kept within a radius of six squares of a public market in this city,” it was absolutely immaterial whether the distance should he measured on an ‘air-line,’ or as one ‘ would walk.’

The latter alone is the issue which we. have .proposed to decide in the instant case, find in dealing with that issue we declined to he hound by the definition given of a radius, as meant by the Legislature, or by the city, in the Bérard case, because no issue therein involved required such ,a definition.

We, therefore, adhere to our views as originally expressed, especially as they have been absolutely confirmed by subsequent developments.

Rehearing refused.


source: Caselaw Access Project

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

license: Public Domain

text:
    No. 10,232.
    The State of Louisiana and the Parish of Jefferson vs. Dan Miller.
    An appeal taken front a judgment rendered in’a proceeding, apparently criminal, will not be dismissed tor want of a citation to (he plaiutiff, who cannot be permitted to change the character of the proceeding and claim that it is civil in its nature, to oust the defendant from an appeal taken by him. as though (lie proceeding was a criminal prosecution, in which no citation is required-.
    Police juries can only exorcise such powers as have been ¡¿raided to them in express terms, 01 such as are necessarily implied from, or incidental to powers so expressly «¡ranted.

      The Legislature of this State has not made any general grant of police powers to police juries. but has very carefully detailed, defined and limited the powers granted.
    The right to regulate the speed at which railroad trains may run through their parishes or through even the thickly settled portions thereof, is not granted, either expressly or by implication, to police juries.
    yyPPEAL from the First .Justice’s Court, Parish of Jefferson.

      dermis Leche, District Attorney, and //. N. davtier for Plaintiffs and A ppellees.

      L. DePoorter and Howe <(■ Prentiss for Defendant and Appellant.
   On Motion to Dismiss.

The opinion of the Court ivas delivered by

Bermudez, C. J.

'Hie plaintiffs and appellees complain that they have not been cited to answer tlie appeal and move for its dismissal.

An inspection of the record shows that the defendant ivas arrested, tried and fined, under a prosecution for the violation of a police jury ordinance.

it- is, therefore, apparent that the plaintiffs have impressed upon the proceeding the character of a criminal prosecution.

rt is possible that the defendant should not- have been dealt with in that form; but at this stage we could not so hold.

Surely, after giving to the proceeding the form of a criminal prosecution, the plaintiffs cannot he, heal’d to change its character and claim that, it is a civil proceeding in order to oust the defendant of the appeal which he has taken from the judgment against him, though true it may be, that the defendant has not, asked that the plaintiffs be cited to answer the appeal, and they were not cited to do so.

The appeal could be dismissed for want of citation to the plain-lifts solely if the prosecution was civil in character; but this we cannot presently decide without looking to the pleadings and the merits thereof, which can only be done when the motion to dismiss is overruled.

If the proceeding he, as it is in appearance, criminal in form and character, of course no citation would be required to the. plaintiffs to notify them of the appeal.

The motion to dismiss is denied.

On tiie Merits.

Fenner, J.

Defendant appeals from a judgment imposing upon him á fino of twenty ($20) dollars, and, in de,fa nit of payment, imprisonment-for ten days, as a penalty for the violation of an ordinance of the Police Jury of the Parish of Jefferson, passed in the following terms: “No railroad train shall he allowed to pass through the limits of the villages of this parish at a greater rate of speed than six miles an hour, and any conductor or engineer so offending shall, on conviction before a proper court, be fined for such offense, the sum of twenty ($20) dollars, or be imprisoned in the jail for a period not less than ten nor more than thirty days.’"

The suggestion that- we have no jurisdiction in such a case is without merit. It is undoubtedly a case “ wherein the constitutionality or legality of fine or penalty impost',d by a municipal corporation is in contestation,” and of all such cases, without limitation. Article 81 of the Constitution invests this Court, with jurisdiction.

Various defenses are urged ; one of which, however, is so radical that, being well founded, it dispenses us from the necessity of considering any others. This is the lack of authority in the Police. Jury to pass such an ordinance.

Police juries can only exercise such powers as have been granted to them in express terms, or such as are necessarily implied from, or incidental to, powers so expressly granted. Dillion Manic, dorp. § 353.

'flic power exercised by this ordinance to regulate the speed of railroad trains is certainly one not usually granted to, or claimed by, municipal bodies having such broad territorial jurisdiction as police juries. Such power is, indeed, frequently granted to incorporated towns and cities, and in cases where such bodies are vested with a general grant of police powers, perhaps the power to make such regulations would be considered as embraced therein.

Rut the. Legislature of this State has not seen fit to invest, the police juries of the.parishes with any general grant of police powers.

An examination of the provisions of the Revised Statutes under the title of “ Police Jury,” shows that the Legislature has very carefully limited and defined the powers granted -Jo these bodies, and nowhere therein can be found any grant embracing either expressly, or by implication, or as a necessary incident, the power asserted by the Police Jury in this ordinance.

Even had there been a general grant of police powers, we do not think it would, under any reasonable rdnslruction, have embraced tin- power here asserted, because it would have boon a power entirely outside of the usual functions of police juries hostile to public policy, and trenching upon the proper legislative domain. As every railroad train nocessarily runs through a succession of parishes, if each may require a rate of speed not exceeding six miles, all may do so, and the practical result might be. that no railroad train could run at a greater speed anywhere, in this State.

It is true the ordinance only refers to the passage of the, train through “ the villages of the parish ;” but if it may exercise the. power there, why not. elsewhere‘l Besides, what are “the villages of the parish V' We are not aware, of any law recognizing such municipal organizations. Any settlement may claim to be a “village” as well as another. Every plantation “ quarters ” might set- iq> its claim, and the. result would be that the unhappy conductor or engineer might hardly know when lie was in, or out of, the limits of a. village.”

Satisfied, as we are, that the Police Jury, in passing the ordinance, exceeded its powers, the penalty for its violation cannot be enforced.

It is, therefore, ordered that, the judgment appealed from be avoided and reversed, and that the defendant be discharged.


author: Bermudez, J.

text:
    No. 10,272.
    The State ex rel. J. W. Adams et al. vs. The Judges of the Court of Appeals for the Parish of Orleans.
    Tin* Court of Appeals has no jurisdiction in a suit to annul a judgment discharging an insolvent from liabilities oxeeo.ding $2000, in tin*, instant case. $14,000 and more.
    REPLICATION for Mandamus,

      V>. R. Forman and 31. IS. Philipn for the Relator.
   The opinion of the Court was delivered by

Bermudez, J.

'Phis is an application for a man-ü<mnw, to compel the judges of the Court of Appeals in this city, to exercise, jurisdiction over certain cases, decided by the. District Court, whose judgment was taken up to said court for review.

The relators, who are the plaintiffs and appellants in said (“ases, charge substantially: That they are each creditors for an amount less than $2000 of Andrew Downey, who made a cession of his property, and who, upon false and fraudulent representations, as regards them, the relators, obtained a judgment, discharging them from further liability to then-creditors; that, they have, separately sued to obtain the nullity of tlie same; that their demand having been rejected, they have appealed to the Court of Appeals to have, said judgment against them revised; that said court has refused to try said case's oil appeal, for want of jurisdiction, rations materias, and lias dismissed their appeal.

The judges of the Court of Appeals return admitting their refusal, basing it. on the main ground, that the matter in dispute is the validity rel non. of the judgment discharging the insolvent from claims and debts, exceeding $14,000, which they would have been powerless to review, on an appeal by a particular creditor, whose claim would have been for less than $2000. , .

In the reasons assigned by them, for dismissing the appeal, they say appropriately:

In an action of nullity, the. .milt,ter in dispute is the judgment sought to be annulled. 18 Ann. 893; 86 Ann. 423. The proceedings and judgment sued to be annulled in this..case were had contradictorily between Downey and all his creditors and discharged him from an indebtedness of $14)783 20. Obviously, this court could not have entertained an appeal from the judgment, by a particular creditor, on the ground that the amount of his demand against the insolvent was less, than $2000. .Neither can it entertain, on any siich ground, an appeal in an action to annul such judgment.”

The relators have sued, alleging the absolute, nullity of the, judgment, and ashed that, it be avoided in its- entirety.-

The grounds alleged for the nullity attach the judgment in radies, and, if they be sufficient and proved, the. judgment may have to be annulled as a whole.

It'is, therefore, apparent that the judges of the Court of Appeals have no jurisdiction to annul the judgment attached and complained of.

It is, therefore, ordered and decreed that the application for a mandam ns be refused with costs.


author: Fenner, J. Fenner, J.

text:
    No. 10,025.
    Mrs. Catherine Conolly vs. Crescent City Railroad Company.
    1. Although a common carrier of passengers• owes obligations to its well passengers as well as to those who are sick, and is bound to protect the rights of both; and although when the condition of one passenger, from sickness or otherwise, is such as to be inconsistent with the safety, health or even comfort his fellow-passengers, regard for the rights of the latter will authorize the carrier to terminate the carriage by excluding him j yet this right cannot he exercised arbitrarily or inhumanely or without due care and provision for the safety and well-being of tlie ejected passenger.
    2, A passenger .stricken with apoplexy while* riding ón a street car, although attended with severe vomiting, to the inconvenience and great discomfort of other passengers, cannot he removed while in a speechless and helpless condition, aud laid in the open street on a bleak, drizzling December day, and there abandoned with no -effort to procure him attention, without a gross violation by the carrier of its duty as such, and liability for resulting damage,
    3. The mistake of the driver in supposing that the iiassenger was drunk, when the latter had ridden a considerable distance without misbehavior,' and had been guilty of none except the vomiting occasioned by his illness, cannot excuse the company.
    4. The defense admits the absence of any attempt whatever of the company to perform its duty of seeing to the care of the ejected passenger and rests upon a denial of any such duty in the premises. Hence the kind and degree of the care to be exercised under peculiar conditions which attend the operation of street railways in New Orleans, are not involved.
    APPEAL from the Civil District Court for the Parish of Orleans. Voorhics, J.

      James Wilkinson and Zacharie <& Armstrong for Plaintiff and Appellee:
    1. Common carriers, in the conveyance of passengers, are bound to exercise a very high degree of diligence, care, skill and foresight. Lehman vs. R. R. Co., 37 Ann. 707.
    2. Especially where the passenger is known to be in any manner affected with a disability by which the hazards of travel are increased. Wardle vs. C. C. Co., 35 Ann. 204 and authorities there cited; Hickman vs. Mo. R. R. Co., decided by Supreme Court Missouri, March 21, 3887; East Line R. R. Co. vs. Rushing, S. C. Texas. Dec. 9, 1887, G S. W. Reporter, 834; Cent. Law Journal, vol. 26, p. 296; Shenandoah R. R. Co. vs. Morse, S. C. Virginia. Nov. 10, ’87, 3 S. E. Reporter 796 ; Cent. Law Journal, vol. 26, p. 313.
    3. Street railway companies are held to the exercise of the same care, diligence and foresight for the safety of passengers as steam railroad companies. Central Law Journal, vol. 26. p. 50, Cittizens’ St. R. R. Co. vs. Twinane, S. C. Ind.. Sept. 27, ’87, 33 N. E. R.. 55; R. R. Co. vs. Buck, 96 Inp. 346; R. R. Co. vs. Rambolt, 99 Tnd. 551; Lemon vs. Clianslor, 68 Missouri 340 ; Dougherty vs. R. R. Co., 81 Missouri 330 ; Kelley vs. R. R. Co., 70 Missouri 609; Leslie vs. R. R. Co., 88 Missouri 55; Smith vs. Ry. Co., S. C. Minnesota, April 2, ’84, Am. aud Eng. R. R. Cases, vol. 36, p. 310 ; Kellow vs. Central Iowa Ry. Co., 8. C. Iowa, June 5.1885, cited in Am. and Eng. It. It. Cases, vol. 23, p. 490; Sales vs. Western Stage Co., 4th Towa 547; Brink vs. Coe, 4 Green 556 ; Bonce vs. Dubuque R. R., 53 Iowa 278; Me-Elroy vs. Nashua R. It., 4 Cushing, p. 400 ; Christie vs. Greggs, 2 Campbell, p. 79; Hutchinson on Carriers, §§ 498 to 504.
    4. Where the company has the right to eject a passenger who is drunk, or disorderly, or refuses to pay his fare, or is suffering from delirium tremens, the right of ejection must be exercised with a reasonable care and a due regard for the welfare of the person ejected. This duty does not end with the removal, but it is the duty of the carrier to make such temporary provision for the protection and comfort of the ejected passenger, as the offices of humanity shall dictate, until some suitable provision for him shall be made. Louisville C. and L. R. R. Co. vs. Sullivan, S. C. Kentucky, Beb. 28. .’84, Am. and Eng. R. R. Cases, vol. 36, p. 390; Atchison, Top. and Santa Be R. R. Co. vs. Weber Administrator, S. O. Kansas, May 8, 3885. Am. and Eng. R. R. Cases, vol. 21, p. 418; Hall vs. South Carolina Ry. Co., S. C. South Carolina, March 20, 1888. S: E. Reporter, p. 632; Lovett vs. Salem and Danvers R. R., 9 Allen 557; Higgins vs. Watervliet R. R. Co., 4G N. Y. 23; Nichols vs. Middlesex R. R. Co., 106 Mass. 463: Wilton vs. Middlesex R. R. Co., 307 Mass. 308; Sand-ford vs. 8th Av. R. R. Co.. 23 N. Y. 343 : 'Isaacs vs. 3rd Av. R. R. Co., 47 N. Y. 122 ; Penn. R. R. vs. Yandiver. 52 Penn. 365; Kline vs. Central Pacific, 37 Cal. 400; Meyer vs. Pacific R. U„ 40 Missouri 151; Shearman & Redfield on Negligence. § 264, note A.

      The Appellate Court will not reverse two verdicts of two separate juries in the same suit-awarding damages unless exorbitant, excessive or manifestly erroneous. 37 Ann. 231 ; Hennen’s Digest, vol. 1, p. 92, (verbo) Appeal IX‘(b).. and authorities there cited; 5 K. S. 433 ; 6th L. 138; 2Ann.46; 33 L. 273; 5Ann 522,704; 13th L. 514; 6Ann.745; 7 Ann. 89: 3 0 Ann. 1: 12 Ann. 714; 10 Ann. 285; 37 Ann. 94.
    Since the oral argument in this cause we have found several cases establishing the principle that “the duty of care aud abstaining from injuring another is due to the weak, the *• sick, the infirm, equally with the healthy and strong; and when that duty is violated “ the measure of damage is the injury inflicted, even though that injury might have been “ aggravated, or might not have happened at all, hut for the peculiar physical condition of “ the person injured.” Lapleine vs. Morgan L. and X. R. R., 40th Ann., decided July “ term. 1888, and authorities there quoted. Owens vs. R. R. Co., S. C. Missouri 8 S. AV. R. 350; R. R. Co. vs. Jones, S. C. Alabama, 3 South. R. 902; R. R. Co. vs. Ealvey, S. C. Tnil., 3 K. E. Rep. 389; Eeauchamp vs. Mining-Co.; S. C. Michigan. 35 K. AV. 65. R. R. Co. vs. Jones; S. C. Alabama, 3 South. R. 002.

      John M. Bonner for Defendant and Appellant:
    1. AVhere a person gets into a street car filled with passengers, and, after riding a short distance, becomes sick and vomits on the floor of the car and some of the passengers, it is the duty of the driver to remove him from the car. 13 Allen. 304; 118 Mass. 228; 33 Kansas. 548 ; 47 Ann. 238.
    2. AVhere snch person, on being remonstrated with as to his condition, undertakes to leave the car, hut is unable to do so, and in the attempt falls headlong on the floor of the car in his own vomit, it is the duty of the driver to assist iu removing him from the car, and no action will lie against the carrier therefor.

      Volanti non fit injuHa.

    3. The driver -of a street car is required to exercise the cliligentia diligentis patris-familiax; the diligence which a good specialist in his particular line of business would exercise. But this is the utmost extent of his liability. “ The utmost degree of diligence exacted is that which a good business man is. under the particular circumstances, accustomed to show.” AVhar. on Reg. § 48; Slier, and Red. on Keg. 4th Ed. § 3.
    4. AVhere a street car is managed by the driver alone and where lie is required by city ordinances to make schedule time in running his car, he is not required to stop or leave his car to care for a sick passenger whom*lie honestly believes to he only drunk. 42 Miss. 607; 47 Am. R. 238.
    5. Plaintiff must prove damages iu order to recover them. She must make her case certain ; to make it probable is not enough. 16 Aim. 121; 35 Ann. 498; 35 A an. 697; 34 Midi. 507; 44 Pa. St. 377; 34 Ann. 161.
    The damages must result from the injury, aud the injury must be directly caused by defendant. Hutch, on Carrier, § 807.
    The damages must also he the natural and ordinary conseuqence of the act complained of. 53 Pa. St. 436: 105 U. S. 249; 34 Ann! 144 ; 55 K. Y. 118, 119 ; 32 Ohio, 350, 8£1; 7 C. P. 253; AVhrr. on Keg. § 3 ; Shear, and Red. on Keg., 4th Ed., § o.
    AVhére speculation or conjecture has to be resorted to, the rule of law excludes the allowance of damages. 71 HI. 391.
    6. It is the invariable practice of tlie Supreme Court of Louisiana to set aside verdicts that are manifestly contrary to the law and CAidence.
   The opinion of the Court was delivered by

Fenner, J.

On a Sixnday in December, at about two o’clock of the afternoon, Patrick Conolly, a sober", respectable citizen, of 55 years, entercel a car of tlie defendant’s street railway, and paid his fare as a passenger. Nothing in tlie evidence indicates that he exhibited any sign of intoxication or was guilty of the slightest impropriety of behavior, on entering the car, or until he had ridden a, considerable number of squares (from Terpsichore to Third street), and the testimony is conclusive that, in point of fact, he was perfectly sober. After passing Third street, he was suddenly stricken with apoplexy, accompanied, as the medical experts prove to be common, with severe vomiting. The car had numerous passengers to whom thin vomiting undoubtedly occasioned serious discomfort- and inconvenience. Some of them left the car on account of it, while others of those remaining suggested that he should leave the car and took -stexis to call the attention of the driver to the necessity of removing him. The sick man had sufficient consciousness and sense of propriety left to observe this, and he said, I will get out myself,” but on rising to do so, he fell x>rone upon the floor, where he lay absolutely helpless. As far as apxiears, he never spoke again, and was incaxiable of taking any care of himself. The driver then came, back and, with the assistance of a passenger, bodily lifted him, carried him out of the car, and laid him down' in the street between the car track and the gutter, between two and three feet from the former. Tin-evidence is conclusive that, almost immediately afterward, and while the car was moving of, he shifted his position, by some convulsive-movement, so that his legs were across the rail of the. track. 'Phis is X>roven by passengers who saw him in this position as the car moved away, and by others who came to him immediately afterwards. The driver, however, after thus summarily disposing of his stricken pmssen•ger, x>aid no further attention whatever to the matter. He took no stops to secure for him any relief or assistance. It is doubtful if he made any rex>ort of the incident to his employers, and if he did it was not acted up>on. He simpdy went his way in a serene confidence that, as he e-x-pm-Mses it, he had “ done his duty,” and although he passed the promt several times while his ejected prassenger was still lying helpfless on the adjoining sidewalk, he states that he does not recollect whether he saw him or not. A female passenger, observing his perilous prosition across the track, went to his assistance and, with the aid of a gentleman, removed and laid him on the sidewalk. Here he remained for more than four hours, on a. bleak, drizzling December day, in the open street, without aid or relief, in his terrible condition. At last tlie pmlio.o authorities came to his assistance ¡md he was conveyed to the Charity Hosputal where he died on the following- morning.

ft should need no parade of learned authorities to maintain the proposition that a connuon carrier cannot treat, an unfortunate passenger stricken with apoplexy while under its charge, in the manner above indicated, without a breach of the plainest obligations of its contract, of carriage. If there were any precedent, to the contrary, humanity would revolt at it, and it would be one “more honored in the breach than in the observance.” But. there is uo such precedent; and those cited by defendant’s counsel are far from sustaining the position.

No doubt a carrier owes obligations to its well passengers as well as to sick passengers, and is bound to protect the rights of both. When the condition of a sick passenger is such that his continued carriage is inconsistent with the safety or even the reasonable comfort of his fellow-passengers, regard for the rights of the latter will authorize the carrier to exclude him from the conveyance. Thus if he had cholera, or smallpox, or (Milium trcmenn, or even if, as in this case, he were subject, from any cause, to continuous vomiting, utterly inconsistent with the comfort of other passengers in a street ear, the right of the carrier, in protection of the latter’s privileges, to exclude him, would undoubtedly arise. Such is the reasonable doctrine of the cases cited. Lemont vs. R. R., 47 Ann. Rep. 238; Vinton vs. R. R., 11 Allen (Mass.) 304; Murphy vs. R. R., 118 Mass. 228; R. R. vs. Weber, 33 Kansas 543; R. R. vs. Statham, 42 Miss. 607.

But none of these cases hold that this right of exclusion can be exercised arbitrarily and inhumanely, or without due care and provision for the safety and well-being of the ejected i>assenger. On the contrary, the duty of exercising such care and provision is universally recognized. Thus, in the. Kansas case, above quoted, the Court said : “Under these facts, the propriety of.his removal cannot be doubted. * * The duty of the railroad company, with respect to Weber, did not end with his removal from the train. He was unconscious and unable to take care of himself. They could not. leave him on the, platform, helpless, exposed and without care and attention. It was its duty to have exercised reasonable care and diligence to make temporary provision for his protection and comfort.” This was a case of intoxication;

And in the case most relied on, Lemont vs. R. R., the Supreme Court of the District of Columbia, after recognizing the. right of removal, is 'careful to add: “Of course, for an abuse of this discretion, or for any oppression in its exercise, the company would be responsible.”

In another ease the. Court, while recognizing the right of ejection, said: “ It does not follow that the right may be exercised in such manner, under such circumstances, or against a person in such physical or mental condition as that death or serious bodily harm will necessarily or even probably result from putting him off.” R. R. Co. vs. Sullivan (Ky.) 16 Am. and Eng. R. R. cases, 390, See also Hall vs. R. R. Co. (So. Ca.) S. E. Rep., March, 1888; Lovett vs. R. R., 9 Allen (Mass.) 557; Higgins vs. R. R., 46 N. Y. 23.

We conclude, therefore, that the conduct of the defendant’s agent, in turning ont this helpless and.speechless sick passenger into the roadway of the street, and there leaving him, on an inclement day, without the slightest attempt, at the moment or afterward, to have him taken care of, was a gross violation of its duty.

The company attempts to shield its agent on two special grounds, viz : 1. That he supposed, and appearances justify him in supposing that Conolly was drunk. Even if his illness had been the result of drinking, yet he had ridden a considerable distance without misbehavior, and was never guilty of any, except in the sudden access of vomiting bringing about a condition of complete helplessness. In such case, the duty of the company to see to his being taken care of, after ejection, would have arisen, and would have been abridged by no fault on his part, because, until his sickness, he had been in lit condition to take passage and had committed no voluntary misbehavior. Moreover, it is admitted that (Ionoily was not under the influence of liquor, and the assumption that he was so was a. rash one, under the circumstances, and the company, not Conolly, must suffer for the mistake.

2. It is claimed that Conolly had signified his desire, and had attempted, to get out, and that the driver only helped him to accomplish his purpose. That he wished to get out while he thought he was able to do so and to take care of himself, may be true; but to suppose that he desired to be put ont and left in the street after he had fallen down in an utterly helpless condition, is too preposterous to merit consideration.

We are not here concerned with the measure of the duty which a street company, operated under the conditions prevailing in the City of Ne\y Orleans, owes to a passenger in such unhappy case, nor with the kind of degree or care, which it is bound to take for his protection. .If we were, we should give due consideration to such conditions and would be careful to adjust the duty according to praticability. But the defense here rests upon the entire absence of any effort whatever to perform the, duty and a denial that any duty arose in the premises. Such a defense can receive no sanction at our hands.

Nothing remains for determination but the measure of damages.

The cause of action arose, prior to the recent amendment of Article 2315, Rev. C. 0., and the damages recoverable are those, only which wore suffered by Couollv.

Tlie case was tried twice before a jurj\ The first verdict was for $1500, ou which a new trial was granted. The second verdict, from which the present appeal is taken, was for $2500.

The evidence indicates that Conolly was not entirely deprived of consciousness, but. his faculties were, no doubt, greatly obtunded. His sufferings were severe; and though he must have suffered in any event, it would be a reproach to the medical art to suppose that it could not have means to alleviate them, had he received proper attention.

The medical testimony indicates 'that the attack was necessarily fatal. The humiliation of this position was extreme, and it is probable that he felt that to some extent, because one witness states that, when asked if he was drunk, he shook his head.

On the whole, considering all the circumstances, we consider that an award of $1500 will do justice.

It is, therefore, ordered and decreed that the judgment appealed from be amended by reducing the amount to $1500, and that, as thus amended, the judgment appealed from be affirmed, plaintiff to pay costs of appeal.

On Ai’iu.icatiox for Reiiearinc.

Fenner, J.

The propositions decided by us, in this case, which are fully, though briefly condensed in the syllabus, seemed to us so simple, so conservative, so limited, that we confess our amazement at the prodigious coiTollari.es and consequences which are attached to them in the brief for rehearing. While we are hopeful, and indeed confident, that no other person will ever make such deductions from the language used, we will, for the satisfaction ot counsel, expressly disclaim any purpose to convert the street railway of his client into an “eleemosynary institution,” or to require it to add to its equipment a supply of doctors and trained nurses or an ambulance corps. The plain obligation to abstain from inhumane treatment of a sick passenger, which the law imposes upon carriers, may be discharged without the aid of such expensive appliances. But, at the same time, we do most stoutly hold to our view that this obligation is not, as counsel suggests, a mere moral duty resting on carrier only in common with all other persons, but is a specific legal duty arising from his contract and enforceable by all legal sanctions.

We are bluntly charged with deciding a case “not before us.” AVe are in the habit of looking for the case before us, in the record and not in the briefs of counsel; and this charge would have been loss flippant had counsel referred to any page of the record contradicting a single fact stated by us, which he has not done, and could not do.

We are reproached with attributing' to counsel an adminitwii which he has not made, viz: That Conolly was not drunk. As the evidence was conclusivo and uncontradicted that he was no.t drunk, and as neither in oral nor printed argument did counsel assert that he was drunk, we deemed ourselves justified in treating this as an implied admission. If we were mistaken, there is no difference between a fact clearly proved and one admitted, and the error seems inconsequential.

We are accused of using “hard words,” and of violating the amenities which should exist between court and counsel. The scant observance of those amenities exhibited in this brief, which we notice with equal surprise and regret, is not justified by any conscious offense on our part. The supposition which we characterized as “ too preposterous for serious consideration,” was one attributed by us to the driver and not to counsel. Fiad we thought that the counsel had adopted this supposition as his own, we might have sought for words more polite in which to qualify it, but we should have been compelled to substitute others not less emphatic.

It is claimed that the driver’s mistake, in supposing Conolly was drunk, justified Ms course and screens the company from liability. If drivers are authorized to assume that every person who becomes ill and vomits in a car must necessarily be drunk, the soberest citizen is liable every day to incur the calamity which befell Conolly and to be treated in the same way. If they are not authorized to make such assumption from those facts alone, then there was absolutely no foundation for it in this case; because Conolly had ridden a long distance without any misbehavior or improper conduct, until he was suddenly stricken by apoplexy and attendant vomiting. No other fact supported the assumption, and every prior circumstance opposed it. We say, therefore, that if the driver honestly believed that Conolly was drunk, the honesty of that belief cannot excuse its manifest rashness and improvidence, or exonerate the company from liability for his fault.

The fact that some of his fellow-passengers, who had no responsibility or duty in the premises, jumped to the same uncharitable conclusion, cannot excuse, the driver, who was charged with serious duties and was bound to have strong and reasonable grounds before acting in so summary and cruel a manner.

The only question in this case, on which there was even the slightest doubt oí- hesitancy in the mind of any member of the court, was as to the measure, of damages. That was the subject of full discussion, which, considering that though years had elapsed, the, judgment allowed no interest, resulted in an agreement on the sum named.

While sensible that, in such cases, ideal justice cannot be done, wo adhere to the judgment.

Rehearing refused.


author: Watkins, J.

text:
    No. 10,227.
    O. V. Greend and Herman Wehrmann vs. Charles Kummel.—Augustus Craft, Warrantor.
    1. The fact of a party advancing money to pay the wages of the employees of a commercial partnership, and discharging its other expenses, does not constitute him a partner.
    2. The fact that the person, who makes such advances of money, takes the charge and superintendence of the partnership business, and exercises the rights of a proprietor,, does not constitute him the owner of the establishment and property, as between himself and the partners.
    3. Such acts might be plead as an estoppel against the parties, in a suit with third persons.
    APPEAL from the Civil District Court, Parish of Orleans. Tissot, J.

      A iuj. Bernmi and Gibson■ (& Wall for Plaintiffs and Appellees :
    Parties who have associated themselves for the purpose of carrying on a commercial business, may adopt a symbolic firm name representing them collectively, such as, “ Standard Music and Photo. Lith. Co.” Bates on Partnership, Yol. II, 1147. 7 M. 215, and where in using such a film name the parties have by consent, on their cards, letters, bill heads, etc.. used the “plural,” advertising themselves, as printers, publishers’ agents, etc., it is an admission that there existed between them a partnership. Bates on Partnership, vol. II, p. 1147.
    Partnersliips may be proved by the oral testimony of clerks, agents or persons who know that the alleged partners have actually carried on business in partnership. Collyer on Partnership § 686, p. 614. And such partnership may be established by showing that the parties spoke of each other as partners. Bates on Partnership), vol. I, p. 1143, quoting 20 Me. 367 ; 20 Me. 264. 267; 10 Mo. 170; §1151; also Collyer on Partnership § 775 and authorities p. 675.
    Evidence that a person advertised for a partner, and that the defendant made some business arrangements with him tends to show a partnership.. Bates’ Law of Partnership, vol. IT, p. 1150, (quoting 44 Mich. 192, etc).
    Partnership may also be evidenced by informal documents, as for example, a series of letters, etc. Bindley on Partnership (Ewell) vol. 1, pp. 92 and 93.
    Partnership books are evidence of the existence of a partnership) where the same lias been kept in the name'of a partnership. The entries in the books are only prima facie evidence of the correctness of the accounts therein contained. Bates on Partnership), vol. I. 978, 979 and 981 (quoting Cal. 105, etc.). The entries in such books can at all times be explained, a fortiori, where the person sought to be estopped, pleads error or fraud.
    Contracts by one partner clandestinely made in the name of one of the partners, are under the law deemed for the benefit of the firm. Bates on Partnership, vol. T, p. 305 and authorities. Collyer on Partnership, § 178, 179, 180, pp). 160-170.
    Courts of Justice have the power to appoint Liquidators, 2 Ann. 87 ; 11 Ann. 264. Exclusion of a partner, is sufficient cause for such an appointment. And in appointing a receiver tlie guilty partner will not he appointed. Bates on Partnership, vol. T, 980, 998, vol. T, §591;1003. Collyeron Partnership, § 354, p. 322. Bindley on Partnership, vol. IT, 1010, 1011, etc. High on Receivers. Beach on Receivers.
    When parties adopt the form of a hill of sale with the right of redemption, to secure by pledge of movable property the payment of a note, a default in the payment will not vest ownership of the property in the holder of the note. 5 Ann. 99; 12 Ann. 527; 31 Ann. 848; 32 Ann. 949; 36 Ann. 100; 38 Aim. 154.

      T. Gilmore c6 Sons for Defendant and Appellant:
    1. Where a partnership is claimed in a business and the evidence fails to show how long it was to continue, who was to furnish the capital, whether any, and if so, what interest was to be allowed, and in what proportion the profits were to be divided, and where consent is wanting, there can be no partnership. Rev. C. C. Arts. 2801, 2805 ; 14 Ann. 539 ; 11 Ann. 278. Story on Partnership, p. 4, § 2. Bindley on Partnership, pp. 7 and 8.
    2. A salo of cortain movables in full ownership and allowing the vendor the right of redeeming them within a certain specified time on the payment of a certain stipulated sum is a venta a réméré, aiul on the failure of the vender to redeem the property within the time specified, the title of the purchaser to the property becomes absolute. Rev. C. O. Arts. 2570, 2567; 30 Ann. 185; 36 Ann. 464; 38 Ann. 271.
    A sale subsequently made by the purchaser of all his right, title and interest in the same movables is a valid one, and carries with it the full ownership. Such a sale is one involving warranty.
    The judge of the lower court is without the i>ower to appoint a liquidator without security, without tlicv assent of all the parties. 4Rob. 022; 11 Rob. 433; 16 Ann. 238; 35 Ami. 600.

      Bemiss & Si monda for Warrantor and Appellee :
    A sale of “ all right, title, interest and ownership, as well .as all claims,” to certain property, when accompanied by such evidence of those claims as to put the purchaser on inquiry as to their extent, and in the absence of any representations by the vendor, tending to mislead the purchaser, includes only such interest as the vendor actually possessed. O. O. 2501, 2502, 2517, 2521, 2522; 15 Ann. 65.
    A partnership is a contract, and can only be established by the consent of all the parties. O. C. 2801. 2805, Story on Partnership, cliap. 1, p. 2. $ 2.
    Any agreement as to partnership between the purchaser of the interest of one of the partners, and'the remaining members of the firm, is a new contract in which the retiring partner lias no interest.
    The sale of his interest by one partner cannot bring the purchaser of that interest into the partnership. O. O. 2806; Story on Partnership, chap. i. p. 6, § 5; chap, xiii, p. 457, § 307 and 308.
   The opinion of the Court was delivered by

Watkins, J.

The litigated question in this ease is whether or not a partnership exists between the two plaintiffs and the defendant.

The claim of the plaintiffs is that during the fall of 1886 they formed a partnership, for the purpose of lithographing and publishing music, in the city of New Orleans.

That for many years previous thereto,.Welirmanu had been engaged in that business in tins city, and was, at the time of forming said partnersMp with Greend, the owner of $2500 worth of material, tools, engraving and paraphernalia, and sufficient machinery to operate the business.

All of this and his professional skill, he invested in this partnership, against Greend’s $600 and his skill as a lithographer, engraver, specialist in zinc-etching, and music printing and publishing.

Being desirous of enlarging their business, they ordered from Leeds, England, a lithograpliic power press, the prime cost of which was about $2300, on which they had advanced $600, borrowing $1710 due, thereon.

Not being in funds to pay this balance and the expenses necessary to carry it into their establishment, they secured a loan from Augustus Craft, for that imrpose, and for this sum Wehrmann executed his three months’ note, secured by a pledge of all of the effects then in the establishments, and the press not yet received.

That Henry Baker having just concluded negotiations with them to take an interest in the partnership, Craft purchased Baker’s right, through Wehrmann, and took his place; and, thereafter, from time to time, he invested $3000, additional money, in the business.

That before Baker became a member of the firm, it was conducted in the firm name of Wehrmann & Co., but when Craft became a partner, it was changed to Standard Music and Photo-Litho. Company.”

That on the 1st of April, 1887, he sold his right, title and interest in the partnership and property, to the defendant, who continued in the business with petitioners, and invested additional capital — he being possessor of large means, and no knowledge of the lithographinig business.

They aver that, on the 28th of October, 1887, during tlie absence of Greend, the defendant violently ejected Wehrmann from the premises, and locked it, and has prevented their re-entry, since.

Kummel denies the existence of a partnership, but avers that, upon the plaintiffs’ representations that'the business was a profitable one, and would prove to be a good investment, he purchased from Craft, on the 1st of April, 1887, for the price of $4973 39 “a certain lot of machinery, tools, stones, and other articles necessary and useful for the purpose “ of carrying on the lithographic business,’-’ in the ju'emises No. 48 Bienville street.

He further avers that he continued in said business, employing the plaintiffs as workmen and operatives in said business, until the 28th of “ October, 1887, when, it proving unprofitable, he discontinued it.”

That, iu the course of said business, ho expended, in addition to the price lie paid Craft, almost $500. Ho cites Craft in warranty, to defend the 'suit.

Craft’s position is that he was the holder of certain claims against the plaintiffs, including Welirmann’s note for $1760, a bill of sale to the effects iu their establishment, and, upon being- informed by them that they had found a man who would buy out all of his rights and claims, lie sold to the defendant, at their-request, only such rights as he had.

He denies that he was ever a partner of the plaintiffs, has any interest in the suit, or that lie is bound in warranty to the defendant.

On these issues the parties went to trial, and from a general judgment in favor of the plaintiffs and warrantor, the defendant has appealed.

Upon a most careful examination of the record we have found the following facts, viz.:

The partnership between the plaintiffs was formed in the early part of the fall of 1836, and, with a view of enlarging their business, they obtained a loan from Augustus Craft, of $1750, for which Wehrmann executed his note, and secured the same by a pledge of the property and assets of the partnership, and of the lithographic power press, which they contemplated buying, and did buy, with the money they had borrowed of Craft.

This transaction took place on the 10th of November, 1886.

On the 23d of December following- there was a new contract of partnership entered into between the plaintiffs and H. H. Baker, wherein it was stipulated that they associated themselves iu the lithographing business, in this city, for a term of three years, and were to share profits and losses equally. Wehrmann delivered, as his share of the stock, $600 out of certain tools, stones, materials, etc., valued at $2500; Greend delivered the sum of $5’00; and Baker agreed to furnish his services, commercial standing, knowledge and influence, which were valued at $600, and which he delivered as stock.

Owing to the value of his materials, tools, stones, etc., being in excess of his subscribed capital by the sum of $ 1900, that sum was placed to his credit on the books of the partnership.

Just here the chief contention arises, and that is with regard to the relations which subsisted between this partnership and Craft, from its formation to the 1st of April, 1887, when a transaction occurred between him and the defendant. The two plaintiffs, as witnesses testify that, soon after, or about the time of Baker’s becoming a member of the partnership, Craft, took his (Baker’s) place, and, thereafter, continued to be a member of the membership; and, as a conclusive circumstance in support of their theory, they cite Craft’s expenditures of various amounts of money for account of the firm, for a piano, a gas machine, and lithographic press, etc., and aggregating about $3000, and without security. On the other hand Baker states, as a witness, that lie continued in the partnership for about one month, and, becoming dissatisfied with the prospects of the enterprise, and being much occupied with other business engaments, he determined to sell his interest and withdraw therefrom; and he accordingly sold his interest to Wehrmann for $280, for which sum he executed his note.

Craft testifies that he never thought of such a thing as becoming a partner of the plaintiffs; that he did not purchase Baker’s interest, and never had .an interview with him on the subject. He says that it is true he expended various sums for the plaintiffs’ account, at different times, prior to the 1st of April, 1887, and in addition to the sum he loaned them on the 10th of November, 1886, but that was done because he felt constrained to make these expenditures in order to save the sum first advanced. On this evidence we are -bound to conclude that the relations which existed between the plaintiffs and Craft were those of debtor and creditor, and not those of partners.

On the 1st of April, 1887, by a notarial act, Craft conveyed to the defendant “a certain lot of machinery, tools, stones, and other articles “ necessary and used for the purpose of carrying on the lithographic “ business,” being situated in the premises No. 48 Bienville street, for the consideration of $4973 30 ; of this there was $1000 paid in cash; and for the remainder, of $3793 30, he executed his note, due at thirty days, and same was indorsed by the plaintiffs.

It is under this document that plaintiffs insist that the defendant took Craft’s place in every respect, and became a member of the partnership, which was styled the “ Standard Music and Photo-Litlio. Company,” and so continues to the present time; it is under this instrument that the defendant claims exclusive, ownership of all the property of the establishment ; and it is in virtue thereof that the defendant calls Craft in warranty.

Again the two plaintiffs swear to the existence of a partnership between themselves and Kummel, in the business, as well as in the property.

This is just as emphatically denied by the defendant.

There is nothing in the act to indicate, the purpose of the defendant, to become a partner of the plaiutiffs. Neither of the plaintiffs were parties to the act. It only purports a conveyance of the rights, title and interest of Craft to the defendant of certain specified property, and nothing more.

In the elaborate testimony of the respective parties and their witnesses, various circumstances are enumerated in support of the respective theories of each, without convincing us of the correctness of either. While it is true that under this act the defendant assumed control and general superintendence of the business and establishment, and performed many acts of apparent ownership, we are inclined to view them rather as acts of administration. He had purchased the claims of Craft upon representations of the plaintiffs that the business was sure to be a profitable one, and was a safe investment for his money, and, as a prudent financier, he was diposed to look after it closely.

It is true that he expended a large sum of money in the wages of employees, and in other expenses, and necessary disbursements of the concern, but it appears to us quite reasonable that this should have been anticipated by him, inasmuch as his. associates were confessedly without means to move the business. Indeed, it is in proof that the plaintiffs liad more than one interview with the defendant on the subject, and induced him to purchase the interest of Craft.

Craft testifies that he was not acquainted with Kmnmel, and was introduced to him in the notary’s office on the day of sale.

On the other hand there, are several witnesses, of first respectability, who testify that, at various times, and in various rvays, both Greend and Wehrmann acted as proprietors, down to the date the establishment was closed; an d others testify that they -were introduced to the defendant, by Greend or Wehrmann, as their partner, without his disapprobation.

These, at best, are but circumstances; they cannot, of themselves establish either a partnership inter sese, or ownership. If some third persons had right which were involved, they might be successfully urged against the parties as an estoppel; but they cannot take the place of a. contract of partnership or of a sale between the parties. '

Our conviction is that the defendant was permitted to take the superintendence and principal management ot the business because they had confidence in his financial ability, but that they continued to remain the owners of the establishment and property, subject, of course, to the valid claims of the defendant as a creditor.

Under this view of the case the judgment of the lower court must be reversed.

It is therefore ordered and decreed that the judgment appealed from be annulled and decreed ; and it is now ordered and decreed that the demands of tlie pliiintiffs be rejected at their cost in both .courts — the rights of all parties being fully reserved.


author: McEnery, J.

text:
    No. 10,238.
    The State ex rel. A. L. Johnson vs. City of New Orleans et al.
    The City Council of New Orleans has the right, and. it is its duty, to refuse to pass an ordinance to pay claims of doubtful validity. Its decision, however, is not dual. The creditor has the right to apply to the courts to have his claim judicially determined, and its payment enforced, if correct and valid.
    An injunction cannot issue when there is no primary demand in aid of which this secondary remedy is -invoked.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Braughn, Buck, Dinkehpiel c6 Hart for Plaintiff and Appellee.

      Garleton Hunt, City Attorney, for Defendant and Appellant:
    The judge below having exercised a sound and legal discretion in declining an injunction called for under Article 308 of the Code of Practice, the Supreme Court will not undertake to control the judge’s action. The same rule will be applied to relator’s prayer for the writ of mandamus. New Orleans vs. Telegraph Co., 37 Ann. 573 ; State ex rel. Savage vs. ls\ H. JRiglitor, Judge, 38 Ann. 960.
    The City Council of New Orleans being a political body, clothed with certain legislative and discretionary powers, the court will not intereferc hy injunction with the exercise of those powers. High on Injunction, vol. 2, p. 833, par. 1240; State ox rel. Behan, 38 Ann. 1075.
    Where the writs of injunction and mandamus have been regularly and lawfully refused by the court below, against the City of New Orleans, in a matter concerning its polico and internal regulations and government, a suspensive appeal from the refusal will not lie.
   The opinion of the Court was delivered by

McEnery, J.

The relator alleges lie is the holder and owner of certificates for work and labor done in the Police and Improvement Departments of the City of New Orleans for over $2000; that the amounts due him are for services rendered in said departments during the months of March and April, 1888, as shown by the rolls of said months for said departments ; that lie is the transferree of the claims from the benificiaries, and that he acquired the same in due course of business, and in a manner which had long been practiced with the approval of said city.

The transfers have been registered, as required, in the office of the Comptroller.

The city refuses to pass the required ordinance for the payment of ■these claims, and alleges that they are not due and are in dispute. Paymenta by the city of the pay rolls in these departments have been made of subsequent months, and what is known as the “one-twelfth rule” has been violated. For there reasons relator and plaintiff fears that the fund out of which his claims are to be j>aid will be destroyed and he will suffer an irreparable injury, as his only mode of payment is by an ordinance of the City Council directing the payment of his claims out of the budget appropriation for said months of March and April. He prays for a writ of injunction, as follows :

“ That a writ of injunction issue, enjoining, directing and prohibiting the said City of New Orleans, through the Mayor and Council aforesaid, from passing any ordinance directing the payment- and appropriation of the funds in the Department of Public Works and the Department of Police, for the year 3888, for any months subsequent to that of April and March aforesaid, until said months of April and March have been paid, or an ordinance directing a payment in due course passed; and, further, that an injunction issue prohibiting and restraining the Comptroller of said city, Otto Thomas, and the City Treasurer, J. N. Hardy, from auditing, warranting or paying any ordinance passed to pay appropriations in the Departments of Public Works or Police, for any time or month subsequent to said months of March and April, until said.months of March and April of 3888 are fully' paid and satisfied, and petitioner prays that said Cby of New Orleans, its Mayor, members of the Council, said Comptroller, Otto Thomas, and said Treasurer, J. N. Hardy, be cited to appeal' and answer this petition, and after due proceedings, that said writ of mandamus be made peremptory and the injunction perpetuated.”

The ma ndamus proceeding has been abandoned. The judge a quo refused the prayer for an injunction, and, from this order, plaintiff in injunction appealed. The evidence taken and introduced on the application for the mandamus is offered to support the plaintiff’s petition for an injunction.

Section 64 of the- city charter provides that the estimate for the city expenses, known as the Budget, “shall be considered as an appropriation of the amoulits therein stated, for the purposes therein stated, and the, Comptroller shall not audit, nor shall the Treasurer draw or sign any' check upon the fiscal agent thereof for any claims, unless an appropriation thereof has been made in accordance with this act.”

The amounts set apart, in the budget for any specific purpose are to remain dedicated to said-purpose, and a penalty is provided for a violation of this law.

When debts have, been contracted by the city, by its direction, and nil tier its authority, for the purposes for which said appropriation in the budget is made, the fund so set apart remains dedicated-to that purpose, and the creditors have a right to be paid out of that fund. This is undeniable. It is the duty of the Council, when debts have been tiras legally contracted, to pass the required ordinance for their payment out of the fund set aside for this purpose. In this respect, the Council’s duty is ministerial, and not legislative. But this duty does not compel the Council to pay claims against which there is a valid objection. It lias the right, and it is its duty to exercise this right, in the interest of and for the protection of the public, to refuse to pay doubtful claims. Its decision, however, is not final. The party aggrieved has the right to have his claim judicially determined, and its payment enforced, if correct, by appropriate remedy.

No unconditional judgment could be rendered against the city on the claims in this case, but on a proper presentation of them there can be a judicial determination as to the city’s liability, and if adversely to the city, it can be enforced.

' The petition for the injunction, however, does not disclose any primary demand in aid of which the secondary remedy by injunction is invoked.

The city is not cited to- answer any demand for the recognition of plaintiff’s claims, but assuming that the claims are valid and existing obligations against the city, he asks for an injunction to restrain the city indefinitely from doing and performing necessary acts of administration until his claims are paid. He does not ask that the city shall, perform any act in aid of Ms rights. This important primary demand is abandoned, and the injunction must fall, as there is no demand made upon the city to perform any act in aid of which the injunction issued.

The judgment appealed from is affirmed with costs.


author: Bermudez, C. J.

text:
    No. 10,264.
    The State ex rel. D. J. Reid, Sheriff, Etc., vs. S. D. Read, Judge of the Fourteenth District Court.
    Mandamus does not lie to compel a district judge to give his approbation to the appointment of a deputy sheriff, whose name is submitted for confirmation by the sheriff, where he has refused to sanction it. His action is finid, and cannot he revised by this court.
    RP PLICATION for Mandamus.

      Geo. H. 'Wells for the Relator :
    The Inhibition of Art. 159 of the State Constitution, against holding more than one office except that of justice of the peace or notary public, applies exclusively to Constitutional offices, and has no relation to the position or office of deputy sheriff, nor to that of returning officer under § 5 of Act Ho. 161, of the Acts of 1882, 5 Ann. 155; 9 Ann. 515; 15 Ann. 597.
    A mandamus will lie to compel a district judge to approve a sheriff’s appointment of a deputy sheriff, who is legally eligible to such appointment, where the district judge has no other objection thereto; personally or officially, than his erroneous opinion that such appointee is ineligible; because the latter is returning officer for the same parish.

      Zacharie & Armstrong for the Respondent:
    The State Constitution makes no difference between State officers and Constitutional officers and the prohibition of Art. 159. Constitution with respect to holding office is alike directed against both classes of officers.
    The approbation provided for by C. P. 764 means the approbation of the judge of the court in which sheriff acts.
    The exercise of supervisory control by a higher tribunal, with respect to the ordering the lower judge to grant his approbation would be violative of the policy of the law, which refers such approbation to the judge whose residence and knowledge peculiarly invests him with the ability to judge of the fitness of appointments of the officials of his own court.
    Mandamus does not properly lie in the instant case, to control an inferior court in the exercise of its discretion, unless manifestly exercised arbitrarily.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an apidication for a mandcmnus to compel the district judge to approve the appointment of a deputy, whose name was submitted to him, by the sheriff, for confirmation.

In justification of his conduct, the district judge has made a lengthy return, which it is unnecessary to set forth.

It appears that the sheriff has submitted to the judge, for his approbation, the name of one Dees, as a deputy, and that the judge has refused to ratify the appointment.

The sanction of the judge is required by law. C. P. 764. He is vested with a legal discretion in such matters and, after he has exercised it, he cannot be required to undo what he has done and act to the very reverse.

In the instant case he has exercised that discretion and his action is not revisable by this Court.

It is useless to determine whether the application of the sheriff for the confirmation of the appointment made by him is a judicial proceeding or not, for, admitting that it is such, the relator discloses, on the face of his petition, no cause which can induce this Court to subvert the conclusion of the district judge.

Mandanvus issues, in proper cases, to proceed, but is never allowed to recede. C. P. 829.

In instances of usurpation of authority or of transgression of the bounds of jurisdiction, another remedy can be resorted to, but which cannot be asked and granted in the present case.

This Court lias no power to go behind the reasons of the judge and ascertain whether they are or not sufficient. The Court must and does presume that the judge has discharged his duty, conscientiously and legally.

It is ordered and decreed that the application for a mandamus herein, be refused with costs.


text:
    No. 10,196.
    J. Ward Gurley, Jr., vs. The City of New Orleans.
    Mandate is a consensual and imperfect synallagmatic contract. O-ratuitousness does not appertain to its essence, but to its nature. It is lawful to stipulate a remuneration for services rendered. It differs from the hiring of labor, in this : that the hired person is not vested with any representative capacity and receives a price and not a stipend or honorariwn.

    A contract for the services of members of the legal profession is not a Wring of labor, but a mandate.
    A principal has the right to revoke powers of agency given by him for an indefinite period, and is not bound to indemnify the agent for all the services expected to be rendered, unless there exists a stipulation that the entire compensation shall be due by the mere fact of the immixtion of the agent with.the.matters of the agency. Such power to revoke and such contingent forfeiture are implied in such a case.
    A contract made by a municipal corporation with one of its officers, for the collection of arreared taxes, during an indefinite period, for an eventual remuneration, is not a contract of hiring of labor, but of mandate, which-terminates with the office of the contractee and which is otherwise revocable at will, the more so when the same is violative of prohibitory laws and there is no stipulation of liability for compensation.
    Such contract is ultra vires, when the municipal Corporation relieves one of its officers from the duty of collection, which is one of his functions, without additional pay, and intrusts it to another officer, or even to an individual, under terms which are onerous. Such eon-tract may be repudiated by the corporation..-
    In such case, the contractee is not entitled to any compensation, after the time of revocation or repudiation.
    APPEAL from tbe Civil District Court for tlie Parish of Orleans. Righto r, J.

      Henry Denis and Harry H. Hall for Plaintiff and Appellant:
    1. On the trial of a rule nisi, to show cause why an injunction should not issue, the plaintiff’s allegations must be taken for true, and the sole question is, whether such allegations make out a prima facie case and warrant the issuing of the writ. The Court should not go into the merits of the case. 29 Ann. 58; 80 Ann. 799.
    2. There is no provision, either in the Charter of the City of blew Orleans, or in the statutes of the State of Louisiana, which forbids the City Council to contract with a special attortorney-at-law for the collection of old taxes.

      3. If a municipal corporation hag received the benefit of a contract at the expense of the other contracting party, even if the contract is ultra vires, the Court will hold the corpora- • tion liable to its obligation. 96 U. S. 341.
    4. Municipal corporations have an implied or incidental authority to contract to the extent necessary to carry on their municipal affairs, unless specially prohibited by their charters, Dillon Munic. Corp., vol. 1, §443. and note 1, p. 469.
    5. A municipal corporation has no power to repeal without cause an ordinance under which it has entered into a contract, if both the ordinance and contract were legally passed and entered into; and a court of justice should so declare. 39 Ann. 130.
    6. The City of New Orleans can only be viewed by the courts as any other contracting party, and shall not be allowed to revoke her contracts and trample upon the rights of other parties. 17 Alin. 181; 20 Ann. 172; 12 Ann. 819.
    7. An attorney-at-law is not, in his relation to his client, a mandatary, but a lessee of labor or industry; and the contracts made with him for the prosecution of claims, are bilateral and commutative contracts, and are not revocable at the will of the other contracting party. Troplong, Du Xouage, vol. 3, p. 15, §795 et seq.; Pothier, Du Mandat, p. 95, No. 22; Laurent, Du Mandat, vol. 27, p. 382; 8 La. 181; 12 La. 68; 2 Ann. 652; 12 Ann. 698.

      Oarleton Hunt, City Attorney, for Defendant and Appellee:
    The Constitution of 1879 changed the method of collecting taxes. Articles 210 and 218 of the Constitution commanded tax collectors to proceed to sales without recourse to suit.
    "While prohibiting suits, tbe Constitution prescribed what should be done instead, but as the law of 1880 (Act 31, page 88) provided for giving notice to delinquents in case of State or parish taxes only, it was decided, that the former mode of making collection of taxes, that, is, by suit, remained of force in Now Orleans until otherwise provided by law.
    By Act apiiroved July 5.1882, the General Assembly prescribed anew the method of collecting taxes imposed by the State for her own purposes, and the parish taxes as well. (Session Acts, page 119). On the following day the Legislature extended these provisions to the subordinate corporations of the State. Since then payment of taxes, whether due to the State or parish', or to incorporate villages or towns, or to the city, cannot be enforced by suit, but only in the manner provided by Act of July 5, 1882.
    Under this legislation, the Treasurer of the City of New Orleaus is the Tax Collector for the State, and canuot be divested, except by an Act of the General Assembly, of his functions as such. Within the sphere of its constitutional «and legal «attributes, the City Council is a legislature, «and in the exercise of its power in relation to the collection of taxes due to the city, may empower a particular individual to collect the same for a fixed compensation ; but the Council has tbe right «at «any time to change, modify or repeal the ordinance conferring such power and recall the mandate exercised thereunder.
    The rex>eal of such an ordinance is not the violation of the contract. The l«aw of hiring personal services for a term has no application to such dealing between parties. If «any contract at all be created, it is the contract of mandate, and revocable at the will of the principal. C. C. Art. 3028. Hiestand vs. City of New Orleans, 14 Ann. 330, was correctly decided. The oxnnion of the Court in that case is of direct apx>lication to the case at bar.
   The opinion of the. Court was delivered hy

Bermudez, C. J.

The purpose of this suit is to enjoin the City of New Orleans from obstructing the execution of a. contract winch the plaintiff claims to have entered into with her, for the collection of certain hack taxes, under certain terms and conditions, and which she pretends to have revoked and repudiated.

From an interlocutory decree refusing a preliminary injunction, and from a judgment sustaining an exception of do cause of action and rejecting tlie demand, tlie plaintiff appeals.

We deem it unnecessary to pass formally upon tlie correctness of tlie decree, for tlie reason that if it be true that the petition discloses no cause of action, it would follow, as a matter of course, that the preliminary injunction was properly declined, as, no such remedy can issue without sufficient showing — the converse proposition being equally true.

The plaintiff, an attorney-at-law, substantially avers in his petition that, by notarial act passed on the 19th of June, 1886, he entered into a contract with the City of Orleans, by which he undertook to recover and collect the taxes due the said city for the years 1880, 1881, 1882,1883, 1884 and 1885; that this contract was made under the terms of an ordinance of the City Council and by proper and legal authority; that the stipulations between the contracting parties were all to the advantage and benefit of the city and onerotis to plaintiff; that he has faithfully and diligently fulfilled all his obligations under said contract, at a great expense of money and labor, and is still actively engaged in the execution of said contract; but that the City Council, without any legal cause or reason, is attempting to set the same aside and pretends to repeal and annul the ordinance under which it was entered into.

Both the ordinance and contract are annexed to the petition as parts thereof. They set forth the nature of the services to be rendered and the compensation to be received therefor.

In order to determine whether this petition discloses a cause of action, it is necessary to consider tlie nature of the relations created between the parties, their legality, the term of their existence.

It is apparent, from the face of the ordinance on which the plaintiff relies, that its effect was to authorize the City Attorney to select a competent and suitable counsel for the collection of certain back taxes, under his supervision and control and that of the City Treasurer, who should receive certain remuneration, under certain onerous conditions, which it would serve no useful purpose.here to set forth sepecifically.

It is also apparent that this ordinance was passed in consideration of section 24 of the City Charter of 1882, which i>rovides, that the City Attorney .shall have the appointment of all assistants or assistant counsel that the Council may allow him.

It is also apparent from the ordinance and from the act subsequently passed in furtherance of it, that the attorney chosen was to be and became an assistant counsel of the city, attached to the department of the City Attorney, under whose supervision and control he was to remain.

This is so true, that the plaintiff presses in his brief, that he has so been appointed, contending that this section of the law, far from being prohibitory of his appointment, is an affirmative grant of authority for the same.

The plaintiff then became a municipal officer, attached to the City Attorney’s staff, for a term co-extensive with that of this head of the legal department, ceasing to he such, when that term expired.

The charter making no provision for the salary, pay, or compensation of such assistant counsel, the city undertook to provide for the same, in the manner and to the extent, specified in the ordinance.

From this aspect of the relations between the plaintiff and the city, it clearly results that the ordinance and alleged contract under it, became inoperative as to him, the very moment that the City Attorney ceased to be, by the limitation of his term, a municipal officer.

It is not claimed, nor could it be, that the ordinance contemplated any undertaking by the plaintiff in his individual capacity. Hence, no pretension can be raised by the plaintiff that his rights, under the ordinance, continued in him individually after the term of office of the City Attorney had determined, which it did, in 1888, previous to the adoption of the ordinance complained of by the plaintiff.

Were it otherwise, however, the ordinance can .be viewed only as an act of mandate conferring on an agent, a representative, the power of collecting debts due his principal, and allowing him an eventual compensation for his services.

It is not correct to say that the ordinance and the notarial act, in execution of it, constitute a contract which is not revocable, otherwise than by the consent of both parties.

It is perfectly true that as a rule a procuration is gratuitous, but the very text which so declares, provides, “ unless there has been a contrary-agreement.’’'’ R. C. C. 2991.

Under our Code, which lias modified the Roman law, as well as under the French Code, the gratuitousness does not appertain to the essence but only to the nature of the mandate. Hence a derogation to the early rule is allowed by a formal or express stipulation; so much so, that the exceptions have become the rule and the rule the exception, as seldom indeed is it, that an agent acts without indemnity and by pure friendship.

Laurent says that the exception has absorbed tlieoriginalfundamental rule.

In the definition which he gives of a mandate, Troplong says, that it is a consensual and imperfect synallagmatic contract by which one binds himself, either gratuitously or for a remuneration (honoraire) to manage and direct a licit matter for which he is to account. No. 5.

He treats lawyers as agents or mandataries, No. 16; he says that a contract for their employment cannot be viewed as a contract of hiring-labor, Nos. 209, 215; that the honoraire is proper to the mandate, while the price is proper to the hiring-, Nos. 171, 182, 201; that the principal may always revoke ad nutum the powers conferred, No. 704 et seq., and when this occurs, remuneration is due up to then only, observing that it is for the mandatary to guard against such result by stipulating that the entire compensation shall accrue to him, by the solitary fact of his inimixtion, and that in the absence of such stipulation he has no cause to complain. No. 652.

See also Waterman vs. Gibson, 5 Ann. 672; Succession of Fowler, 7 Ann. 207, and Berber, Tarrible and Bertrand, Discours et motifs au corps législatif, March, 1804.

It is-not correct to urge that the ordinance and the notarial act, under consideration, are evidence of a locatio operemim, a hire of labor, for the obvious reason that the hired party is not vested with any representative capacity and receives a price and not a remuneration. He merely acts as an undertaker of work, and in no way as the agent of his hirer or employer. There exists such dissimilarity between the two positions and tiie functions of each are so distinct that they are incompatible. Y. Laurent, vol. 27, No. 333, p. 375; No. 339, p. 334; No. 338, p. 382; No. 339, p. 384.

Taken altogether, the ordinance and the act are simply a mandate, vesting plaintiff with representative-powers in his official capacity, conferring rights and imposing- obligations.

They bear little or no affinity to the case against Heath, Mayor, 20 Ann. 172, for two patent reasons: First, that there, the contract entered into, with one who was at the time a municipal officer, was formed with him indidually; and, second, that the contract was violative of no law and did not infringe upon the rights or duties of any municipal officer of the City of New Orleans.

The plaintiff can derive no comfort from the ruling in the case of New Orleans Elevated Railway vs. Mayor, etc., 39 Ann. 130, from which lie makes the following quotation: .

There can be no possible dispute that where a municipal corporation has passed a valid ordinance and under it, has entered into a valid contract subsequently executed, the council has no right to pass an ordinance repealing the ordinance on false grounds; that such ordinance would, be absolutely null and that a court of justice would so declare.”

Surely this is excellent law. It is almost a truism; but it does not relieve the plaintiff, for, the trouble is here, that the original ordinance and the contract under it are not valid, and the last ordinance, which is based on real grounds, is well founded in law.

Of course, if the ordinance and the contract were valid, they would not have been abrogated by the Council; but as they were ab initio violative of prohibitory laws, the Council could repudiate them, as -was done, the less so, as the time during which the contract was to last, was unlimited.

This indefinite existence, and the absence of a stipulation for absolute remuneration, implied the power of revocation by the city, at any time that it would be deemed advisable to terminate it, and a consent on the part of xilaintiff to submit to such revocation.

To the above expressed views, it may well be added,, that the contract propounded was ultra rives, viz : one which the city had no legal right to form and which it could at any moment as such, repudiate.

Indeed, under the terms of its charter, and of other appropriate and of subsequent legislation (Act 119 of 1832, Act 98 of 1886 ), the duty of collecting the taxes is imposed upon the corporation treasurer, who is required to do so, without additional pay for such services, which form part of his official functions.

Such being the imperative behest of the Legislator, what authority had the City of New Orleans to paralyze and effectually nullify this disposition of the law, by relieving the treasurer from the performance of that obligation and entrusting it to another person, whether an officer or an individual, with provision for a remuneration charged as onerously exorbitant? R. C. C. 11 and 12.

To sanction such a proceeding by the city, would be to recognize in her the power, at her caprice, to abrogate and set at nought the will of her creator, the Law Giver, and to substitute her own, in its stead, regardless of the damage or injury occasioned thereby.

This assuredly is not permissible.

The dilemma is irresistible. Either the city dealt with the plaintiff as with one of its officers, and then his mandate terminated with the expiration of the term of the office of the City Attorney, whose assistant he was; or she dealt with him in his individual capacity, and then his mandate, which is for an indefinite period, and provides for no absolute compensation, ends by its revocation, and plaintiff has no standing in court.

We do not understand that the city claims that the plaintiff is to reimburse any remuneration to which he may have been entitled while tlie mandate existed, but simply that it be judicially declared that their relations have ceased. R. C. C. 3028.

Considering, therefore, that those relations were those of principal and agent, and further, that they arose in violation of prohibitory laws, we conclude that the city had the right not only to revoke, but to repudiate the acts from which they sprung.

The District Judge properly declined the injunctions.

Judgments affirmed.

Mr. Justice Poehé, not having heard the argument, takes no part.