author: Watkins, J.

text:
    No. 11,355.
    State of Louisiana vs. J. Eckendorf.
    A person engaged In the trade, business or calling of baking bread, in which he'jjg exclusively deals, is not a manufacturer in the sense of Art. 206 of the Consti- — tution, and is not entitled to constitutional immunity from the payment of a license tax.
    APPEAL from the Second City Court of New Orleans. J.

      J$. H. MeCaleb Jr., and John St. Paul for Plaintiff and Appellant.
    Defendant unrepresented.
   The opinion of the court was delivered by

Watkins, J.

This is a proceeding by rule, taken on the part of the tax collector of the second district of the City of New Orleans against the defendant, to compel him to show cause why he should not pay a license of $50 to the State for the privilege of conducting the business of a bakery, or retail dealer, the gross receipts of which exceed the sum of $5000 annually; and also for interest at the rate of 2 per cent, per month from and after the 1st of March, 1893; and 5 per cent, attorney’s fees.

The respondent appeared and answered that he was a manufacturer and a mechanic, dealing exclusively in his own wares, and is therefore exempt from the payment of a license under Árt. 206 of the Constitution.

The evidence is that the respondent is a baker and sells only the bread of his own bake. That bread is made from flour, the dough being prepared from yeast and salt and required aa experienced hand to bake it properly.

In the court below there was judgment in favor of the defendant, sustaining his exemption from, paying license as a manufacturer of bread, and the plaintiff has appealed.

It is difficult for us to perceive the ground for such a contention as that of the respondent, or the opinion of the judge a quo.

The Constitution declares that “all persons * * pursuing any trade, profession, business or calling, may be rendered liable to such tax,” except “ those engaged in mechanical pursuits ” * * and “manufacturers other than those of distilled, alcoholic or malt liquors.” Art. 206.

Is the defendant in rule entitled to exemption on the ground that he is a manufacturer of bread?

The general rule, one always observed by courts of justice in construing exemptions of persons or property from taxation, is that the party claiming ihe benefit of such exemption must bring himself within its plain and evident intendment, otherwise his liability to the license or tax will be maintained and enforced.

In City vs. Mannessier, 32 An. 1075, we said that “we can not assent to the proposition that a person making and selling ice cream is a manufacturer in the sense of the law, or in any other sense of the word.”

The process of making and baking bread can not be possibly distinguished from that of making ice cream.

Eor the purpose .of fully illustrating our views in this respect, the cases of City vs. LeBlanc, 35 An. 747; City vs. Ernst, 34 An. 597; and State vs. Dupre, 42 An. 561, may be considered.

The principles of the Mannessier case were examined and approved in the ease of Oity vs. New Orleans Coffee Company, Limited, 46 An. ante., p. 87.

The judgment appealed from should be reversed and the plaintiff’s rule made absolute.

It is therefore ordered, .adjudged and decreed that the judgment appealed from be annulled and reversed, and it is further ordered and decreed that the plaintiff’s rule be made absolute at the cost of respondent in both courts.


source: Caselaw Access Project

author: Nicholls, O. J.

license: Public Domain

text:
    No. 11,349.
    State ex rel. D. George Humphreys et al. vs. G. A. Richardson et als.
    Where the issue in a ease is not the right of ownership of specific property, but of the possession thereof, it is the value of the latter right which determines the jurisdiction on appeal of the Supreme Court.
    y^PPLIOATION for Certiorari.

      Wade JR. Young for the Relator.

      John B. Stone and W. M. Murphy for the Respondents:
    Relators voluntarily submitted to the jurisdiction, of the Court of Appeals and made no exception thereto; this court will refuse to inquire into the question of jurisdiction of the Court of Appeals, where relators have not first excepted thereto without avail. State ex rel. Steele, 38 An. 669; C. P. 847; 10 Rob. 169; 29 An. 806 ; 37 An. 845; O. P. 846, 849; State ex rel. vs. Shakespeare, 40 An. 608, in which the court held: “ The eases in which this has been held are so numerous that it would be cumbersome to enumerate them all.” Citing 29 An. 306; 37 An. 845 ; 38 An. 569, 920.
    In a suit where the plaintiff claims a certain amount or a thing of a certain yalue, and the defendant in his answer admits owing or confesses judgment for a part of the thing or amount claimed the amount in dispute will be the difference between the sum or value claimed, and, the sum or value admitted or confessed, or disclaimed. 32 An. 930; 33 An. 1089; 35 An. 346; 26 An. 291.
   The opinion of the court was delivered by

Nicholls, O. J.

Relators aver that they own and possess a certain cotton plantation described in their petition, known as the Dalkeith plantation, situated in Madison parish, and that G. A. Richardson owned and possessed the Maryland plantation which adjoined the same. That in June, 1892, having reason to believe that Richardson had trespassed and taken possession of a part of the lands of the Dalkeith plantation and was cultivating the same, they instituted an action of boundary against him in the District Court of Madison to have the limits of their respective plantations fixed. That defendant, though cited, allowed said action to go by default, and in a survey made under the order of the court, about October, 1892, it was shown that he had trespassed and taken possession of a certain part of the lands of said Dalkeith plantation. That though notified by said survey that he had trespassed on the lands of relators, and was not within the limits of the Maryland plantation as described in his deed, he retained the possession of said lands and refused to surrender the possession of the same to relators, falsely pretending that he and his authors had acquired said lands by the prescription of thirty years. That relators were thus forced to institute a petitory action against him to be recognized as owners and put in possession of said land, and about December, 1892, filed their petition in which they claimed the ownership and possession of said lands of the value of twenty-five hundred dollars, and revenues for the year 1892 to the amount of about two hundred and fifty dollars. That said petition was duly filed and served and defendant was cited to answer, and the testimony of John Balfour, the husband of one of the authors of his title, taken in pursuance of a commission as to the character of the possession of the defendant and his authors of said lands. That it was disclosed by the testimony of said Balfour that the possession of his said wife had been permissive and with the consent and knowledge of the owners of the Dalkeith plantation, and that there was no adverse possession to serve as a foundation for the prescription of thirty years set up by defendant.

That the defendant, upon the publication of that testimony, abandoned his claim to the ownership of said lands and filed an answer to the petition at the January term, 1893, in which he disclaimed title to said lands but claimed to have been a possessor in good faith and not liable to account for revenues, and reconvened for compensation for improvements and ameliorations.

That the action was consolidated with the action of boundary standing on default, and, after trial had and evidence adduced, the district judge rendered judgment homologating the report of the surveyor, fixing the limits between the respective plantations, recognizing the plaintiff as the owner of the lands in controversy and entitled to the possession thereof, and condemning defendant as a possessor in bad faith to account for the revenues for the year 1892 to the amount of about $250, and to remove, (as elected by the plaintiff), the building erected by him on thejlands, and rejected his claim for ameliorations, inseparable in their nature from the soil,- and condemned him to pay all the costs of both suits. That defendant took a suspensive appeal from said judgment, returnable to the Circuit Court of Appeals for the Second Circuit, at its October term, 1893, and counsel for petitioners having through error believed the appeal to be within the jurisdiction of said court, and said court having inadvertently overlooked the fact that the appeal could only be taken to the Supreme Court, assumed jurisdiction and reversed the judgment of the District Court, found defendant to have been a possessor in good faith and not liable for revenues, and condemned plaintiffs to pay him one hundred and fifty dollars for the building erected by him on the land, and to pay one-half the costs of the action of boundary. That a petition forjrehearing was filed and the rehearing denied, and said judgment and decree have become final, and the term adjourned. That they have been advised since the adjournment of said court that its judgment and decree reversing the judgment of the District Court is absolutely null and void aud of no effect for want of jurisdiction ratione materias, and that the judgment of the District Court, so attempted to be reversed, is still of full force and effect until reversed by the Supreme Court. That they have been advised that the Supreme Court, under Articles 864 and 865 of the Code of Practice, has denied the writ of certiorari to the courts of original jurisdiction unless there has been an exception or some form of objection to the jurisdiction of the court presented, and acted on by said court, but they have also been advised that it has uniformly held that neither consent nor neglect of parties can absolve the court from their duty to obey the Constitution. That the judgment of a court which lacks jurisdiction ratione materias is an absolute nullity which can not be sanctioned by the ignorance of parties or neglect to object to the jurisdiction, nor by the error or inadvertence of the judge in usurping jurisdiction, and that as the District Court is without jurisdiction to entertain a demand for the nullity of the judgment of the Circuit Court of Appeals, relators can only have relief by the writ of certiorari from the Supreme Court.

That if the failure of their counsel to object to the jurisdiction of the Court of Appeals was to sanction the proceedings complained of, such sanction was given in error and ought not to deprive relators of their constitutional right to have the judgment of the District Court reviewed by the Supreme Court, and by that court only. In view of the premises relators prayed for a writ of certiorari, directed to the judges of the Circuit Court of Appeals for the Second Circuit, commanding them to send up a copy of the proceedings in the suit of D. George Humphreys et al. vs. G. A. Richardson, to the end that their validity may he ascertained and that the execution of the judgment of the Court of Appeals against relators be arrested by enjoining G. A. Richardson from proceeding further until the validity of the proceedings has been pronounced upon, and that the Supreme Court would avoid the proceedings in said suit in the Circuit Court of Appeals and direct the judges of said court to dismiss the appeal in said suit for want of jurisdiction ratione materias.

An alternative writ having been issued E. 0. Montgomery, one of the judges of the Court of Appeals, filed an answer, accompanied by a certified copy of the record of the proceedings referred to.

The answer declares that the Circuit Court was vested with and properly exercised jurisdiction of said appeal for the reason that the amount in dispute, as shown by the pleadings, was less than two thousand dollars (Articles 81 and 95 of the Constitution). That the boundary suit and the petitory action in the District Court alluded to, were there consolidated after the answer in the petitory action was filed, and one judgment was rendered in the consolidated cases, and from this judgment G. A. Richardson (defendant therein) appealed to the Second Circuit Court. That on October 23, 1893, the plaintiff (relator herein) filed an answer to this appeal, praying an amendment and affirmance of the judgment appealed from. That no plea to the jurisdiction of the Circuit Court was filed.

That after judgment was rendered by the Circuit Court the plaintiff applied for a rehearing, but did not question the jurisdiction of the Circuit Court.

That in the boundary suit (suit No. 993) plaintiffs alleged their interest in fixing the boundaries to be one thousand dollars. That defendant filed no answer in that suit.

That the petitory action (suit No. 1025) was for lands claimed to be worth twenty-five hundred dollars and one year’s revenue, three hundred and fifty dollars. That the answer in that suit admitted plaintiff’s ownership and right to the land, and admitted that defendant had possession of and cultivated, in 1892, twenty-five acres of the land claimed, and that believing the land to be a part of the Maryland plantation and his property he had made valuable improvements on it, and claimed three hundred and twenty-five dollars for improvements. That the fact that land alleged to be worth twenty-five hundred doliars was claimed in that suit was apparent, but that it was equally apparent that defendant admitted plaintiffs’ ownership, and the only amount in dispute was plaintiff’s claim for revenues, three hundred and fifty dollars, and defendant’s claim for improvements, three hundred and twenty-five dollars, and that on the authority of repeated decisions the Circuit Court entertained jurisdiction of the appeal for the reason that the amount actually in dispute was less than two thousand dollars.

The initial proceeding in the District Court was one of boundary between the relators and G. A. Richardson, in which they declared that their interest in fixing the boundaries was one thousand dollars. This was followed some time after by what is referred to as a petitory action, which, on subsequent motion of the plaintiffs, was consolidated with the boundary suit and the two tried together and disposed of by a single judgment. The defendant filed his answer after the consolidation. As the pleadings in the second ease, so far as they have a bearing on the question before us, are short, we think that by transcribing them we will more clearly than in any other way show its character and the legal situation of the parties.

In their petition in the second proceeding relators say they are the plaintiffs to the suit now pending on the docket entitled D. George Humphreys et al. vs. G. A. Richardson, in which they demanded a fixing of the bounds between the Dalkeith plantation of petitioners and the Maryland and Hermion plantations of Richardson. That the report of the surveyor, which has been returned, has disclosed that Richardson has possession or claims to have possession of a part of the land within the limits of the Dalkeith plantation, being parts of the N. W. quarter and the S. E. quai’ter of Section —, in T. 16, R. 13 E., lying south of the lake and slough running through said quarter sections and between said lake and slough and the Maryland plantation, of the value of two thousand five hundred dollars; that Richardson does not oppose the homologation of the report of the surveyor, but asserts title to said land and refuses to surrender possession to petitioners, and is receiving the rents, of the value of three hundred and fifty dollars per year; wherefore they pray that said Richardson be cited to answer this demand and to disclaim the possession so asserted, or to disclose the title by which he claims the lands, and that petitioners be recognized as the owners thereof and put into possession and recover the rents, of the value of three hundred and fifty dollars per year, from January 1, 1892, and for general relief and .costs. That petition was filed January 6, 1893.

On the 24th January, 1893, defendant filed his answer, which was as follows:

“Now comes G. A. Richardson, defendant herein, and for answer disclaims that he is the owner or possessor of the land sued for except about twenty-five acres of land in the N. W. quarter of Section (1) one, which he cultivated by leasing out during the year 1892, believing at the time that it formed a part of the Maryland plantation, owned by respondent, which it adjoined. That when respondent became the purchaser of said Maryland plantation he believed that said twenty-five acres belonged to and formed a part of said plantation, but has recently discovered that he was in error in so believing. That in good faith believing that he was the owner of said twenty-five acres he has placed thereon one house at a cost of $175, which has benefited said land and enhanced its value to said extent, and is worth said sum. That saidj twenty-five acres of land was grown up with bushes and undergrowth so that respondent had to clear up same at a cost of $150 before he was able to cultivate same in 1892, which cutting has benefited the land and enhanced its value to said extent, and that the condition of said land, by reason of having been so recently cleared, in 1892, was such that respondent was able to rent same for only a nominal rent, realizing much less therefor than it cost him to put it in a state of cultivation. Respondent prays that plaintiffs’ demand for revenues be rejected and that he have judgment in reconvention against them for the value of said house, or permitting him to remove same, and for judgment for the sum of one hundred and fifty dollars, cost and value of clearing said land, being the amount of its enhanced value, and for costs and full and equitable relief.”

On 13th April, 1893, plaintiffs filed in court a paper in which they declare that “ they tender to the defendant the right to remove the building claimed to be erected by him on the land of plaintiffs, and for which he seeks to claim, in reconvention, $175 on account of its enhancing the value of the soil, and consent to relinquish all their right accorded them by law of retaining the said property (cabin) on reimbursing its relative value to the land, and consent to the removal of the same off their land, and pray that such may be so ordered.”

On the 14th April, 1893, the District Oourt rendered a judgment as follows:

“ These two consolidated eases being regularly fixed for trial and taken up and tried, and the law and the evidence being in favor of plaintiffs in the ease No. 993 and the judgment by default rendered in said case No. 993 not being set aside after the lapse of two judicial days, and the defendant having failed to answer, and the plaintiffs having proved their demand, it is ordered, adjudged and decreed that there be judgment homologating and approving the survey made by the parish surveyor as shown by his plat and procea verbal of said survey herein filed, and fixing the bounds between the property as therein stated. It is ordered that said plat of the said survey be made a part of this judgment. It is also ordered and decreed that the defendant, Richardson, pay all costs of said suit No. 993.

“And by reason of the issue joined in ease No. 1025 by the defendant, and the law and the evidence being in plaintiffs’ favor, and said case being regularly tried on said issue, it is ordered, adjudged and decreed that plaintiffs have judgment recognizing them as the owners of the land described in his petition and herein sued for, being part of N. W. quarter and S. E. quarter of Section 1, in T. 16, R. 13 E., lying south and west of the lake and slough running through said quarter section as shown by the iplat aforesaid, and that they be quieted in their title and possession thereof. It is also ordered that, plaintiffs do have and recover of the said defendant two hundred and. thirty-one dollars on account of the revenues of said property for the. year 1892. It is further ordered and decreed that the demand of the; defendant for compensation on account of clearing the land be rejected at his cost, and it appearing that the plaintiffs have elected to not retain the cabin built upon said land it is ordered and decreed that the defendant remove the same off said land.

“It is ordered that the defendant pay costs of suit No. 1025. In the matter of the taxing of the surveyor’s costs on the rule filed by the plaintiffs (except as to the sum of $50, proved to have been paid by plaintiffs, which is here taxed), it is ordered that the balance of costs be left open for further trial of said rule.”

The defendant made two motions for a suspensive appeal from this judgment and obtained two orders of appeal — one returnable to the Circuit Court, the other to the Supreme Court, and furnished bond and security under both orders, The transcript, however, was lodged in the Circuit Court. The appellees appeared in that court and filed an answer praying an affirmance of the judgment, but amended so as to allow fifty dollars for the fees of Searles, surveyor and civil engineer, as an expert, as prayed for by the plaintiffs.

The Circuit Court ordered that the judgment in suit No. 993 be amended by decreeing that plaintiffs and defendant pay costs of said suit (including the cost of survey) equally, and that the judgment in suit No. 1025 be amended by rejecting plaintiffs’ demand for rents and for the removal of the tenant house, and decreed that the defendant recover of plaintiffs on his reconventional demand the sum of one hundred and fifty dollars, value of material or workmanship (or enhanced value of the soil) . It is further ordered that in other respects the judgment appealed from stand affirmed; defendant to pay costs of suit No. 1025 in the Disorict Court and plaintiffs to pay the costs of appeal.

Relators made an unsuccessful application for a rehearing.

The present application followed.

From an examination of the pleadings in the second proceeding it appears that whilst relators anticipated the possibility that the defendant Richardson might contest the ownership of the tract of land of which they alleged him to be in possession, they were by no means certain of the position he would take in the event of a suit, or certain what would be the issues to which such a suit would give rise. Their petition was tentative in its character, though its ultimate prayer was that they be recognized as owners of the land; that they be put in possession and that they recover the rents of the value of $350 per year from January 1, 1892. The defendant upon coming into court at once declined the issue of ownership which they tendered, which, if accepted, would have made the action petitory. He admitted that through error he was in possession of twenty-five acres of the tract, but he averred that his possession was in good faith. Io view of that fact he reconvened, praying for judgment for one hundred and seventy-five dollars to cover expenses which he had incurred in clearing the land and for one hundred and fifty dollars, the value of a cabin which he had built upon it. He did not assert a right to detain the property until this amount should be paid him. The district judge in his judgment says the case was tried upon the issue joined, which evidently did not involve the question of ownership. The allegation therefore that the value of the tract in question was twenty-five hundred dollars ceased to be material as a test of jurisdiction.

The only question between the parties relates to possession and the incidental rights of the plaintiffs and the defendant arising therefrom under the state of facts pleaded and disclosed. Relators themselves fixed the value of possession at three hundred ana fifty dollars per year. They obtained judgment for that sum as the amount due them, and on appeal they prayed, so far as that question was concerned, that the judgment appealed from should be affirmed. We have recently had occasion to refer to the difference as affecting the question of jurisdiction between the value of the ownership of a thing and the value of the possession of the same thing. In re Genella, 46 An., post.

The course pursued by the relators in the Circuit Court showed a correct appreciation of the issues involved in the case and the value of the “matters in dispute.” Whether we consider the two proceedings separately or together, the matters in dispute were clearly within the appellate jurisdiction of the Circuit Court of Appeals.

For the reasons herein assigned, it is ordered, adjudged and decreed that the orders and writ hereinbefore issued be set aside, and that the petition for the nullity of the proceedings be refused at relators’ costs.


author: Parlange, J.

text:
    No. 11,324.
    W. R. Archer et als. vs. Adrien Gonsoulin.
    In this case, whether the appeal be considered as returnable in Opelousas at the term held in July, 1893, or in New Orleans at the term beginning in November, 1892, the appeal should be dismissed.
    i the Nineteenth District Court, Parish of Iberia.

      Foster & Broussard for Defendant and Appellee.

      Philip H. Mentz and G. L. Hall for Plaintiffs and Appellants.
    On Motion to Dismiss.
   The opinion of the court was delivered by

Parlange, J.

The judgment appealed from was rendered in May, 1892. The appeal was returnable to this court at its session held in Opelousas, and beginning on July 5, 1892. The appellants moved for an extension of time to file the transcript until the next session of this court at Opelousas in July, 1898. This motion was granted, although it was vigorously resisted by the appellee. After the extension had been granted, counsel for all the parties, averring that it was important to all the parties that the suit be finally determined as early as possible, joined in an application to this court, praying that the cause be made returnable at the next term of this court at New Orleans, which application was granted on July 8, 1892, and the order granting the same was duly entered on the minutes.

The transcript was not filed at the term beginning in November, 1892.

This court convened again at Opelousas on July 3, 1898. The transcript was filed at Opelousas on July 5, 1898. Thereafter the transcript was filed in New Orleans on August 11, 1893. The appellee has moved to dismiss the appeal.

Appellants’ counsel states in an affidavit that in October, 1892, he wrote to the clerk of this court at Opelousas in regard to this case, and that the clerk in his reply stated that there was no order granted by this court transferring this case to New Orleans. In his letter to the clerk, appellants’ counsel wrote that he was quite sure that there was such an order; that it was applied for by counsel for both sides jointly; that he *knew that he and the opposite counsel signed the motion and read it in open court, and that the court granted the same, but that he did not know whether the clerk had taken it down. The clerk states in an affidavit that as appellants’ counsel wrote that he knew that the motion was read in open court and that the same was granted, he understood that the inquiry of appellants’ counsel was whether a written order had been endorsed by the court on the paper containing the motion for the transfer.

One of appellee’s counsel has filed an affidavit in which, among other things, he states that he knew that the transcript was ready before the convening of this court in November, 1892; that after this court had been in session for a few weeks during its term beginning in November, 1892, he met appellants’ counsel and reminded him of the transfer of the cause to New Orleans; that appellants’ counsel said that he had been informed that there was no order to transfer; that affiant then said that if the order had not been taken down at Opelousas he was willing to take an affidavit conjointly with appellants’ counsel, setting out that an order transferring this cause to New Orleans had been granted, the affidavit to be in place of the order said not to have been carried on the minutes, and that it was then agreed between the affiant and appellants’ counsel to take up the case at once in New Orleans; that subsequently the affiant ascertained from the clerk of the lower court that the appellant had not taken out the transcript or paid for it; that the affiant then wrote two or more letters to appellants’ counsel asking him to take up his transcript.

Prom an affidavit of the deputy clerk of the lower court and from correspondence filed, it would seem that there was some delay in paying for the cost of the transcript-, which was not settled until April, 1893.

In his affidavit already mentioned, appellants’ counsel avers that until the clerk of this court at Opelousas wrote him that there was no order for the transfer, he intended bona fide and was preparing to file the transcript in New Orleans at the term beginning in November, 1892, but that after receiving the clerk’s letter he believed that the order of transfer had not been rendered and that he did not discover the truth until July 3, 1893. That in December, 1892, believing that the order had not been rendered, he so informed appellee’s counsel, and that they agreed to dispense with the order and to take up the case in New Orleans, but that appellants’ counsel required a certain sum of money for briefs; etc., which he requested by letter of his client, from whom he received no reply.

In point of fact, this court, as already stated, granted on July 8, 1892, the joint application of the parties for the transfer of the cause to New Orleans, and the order was then duly entered on the minutes. No one denies that the order was made. It is evident that the court must be guided by its minutes. However regrettable may be the misunderstanding between appellants’ counsel and the clerk, it is perfectly clear that it can not have the effect of annulling an order rendered in open court, at the request of counsel for both parties and in their presence. Besides, appellants’ counsel being erroneously informed prior to the convening of this court in November, 1892, that the order had not been entered, made no attempt in this court to have the supposed omission supplied. Again, appellee’s counsel having offered to waive the order supposed not to have been entered and to try Che cause at the term beginning in November, 1892, and appellants’ counsel having agreed thereto, the agreement was not carried out by appellants’ counsel, presumably because of appellants’ neglect to supply the means necessary for briefs and other incidentals of the hearing.

But even if any law had been cited to us, or if any had been discovered by us, which would authorize us to declare our order of July 8, 1892, null and of no effect, would appellants be benefited?

The claim of appellants’ counsel is that having been misled into believing that the order had not been entered, he considered that the failure to enter the same revived the order previously rendered extending the time for the filing of the transcript to July, 1893, at Opelousas.

The authorities are numerous that when an extension of time has been granted, the appellant is not entitled to three days of grace to file his transcript. Cane vs. Caldwell & Kahn, 28 An. 790; Bienvenu vs. Insurance Co., 28 An. 901; Yon Hoven vs. Von Hoven, 43 An. 1170; and other cases.

This court convened in Opelousas on July 3, 1893, and the transcript was filed on July 5, 1893.

It is therefore clear that whether the appeal be considered as returnable in New Orleans at the term beginning in November, 1892, or in Opelousas at the term beginning in July, 1893, the appeal must be dismissed.

It is therefore ordered that the appeal be dismissed at appellants’ costs.

Breaux, J., recuses himself, having been of counsel.


author: Breaux, J.

text:
    No. 11,415.
    State ex rel. Paul Gelpi & Bro. vs. Board of Assessors et als.
    Imported goods in tlie importer’s possession are not part of the property in the State subject to taxation.
    While they remain in the original package the.importer owes no tax upon them.
    An article imported continues to be a part of the foreign commerce of the country while in the hands of the importer for sale in the original package.
    The authority to import carries with it the right to seil the article in the original package.
    When it has passed into the hands of a purchaser it is no longer an. import and is subject to taxation like any other property.
    The goods were sold by the importers in the original packages.
    They (¡an not be taxed.
    APPEAL from the Oivil District Ooiirt, Parish of Orleans. King, J.

      Harry H. Hall for the Relator and Appellee:
    Imported foreign goods in unbroken original packages in the hands of the importers, upon which import duties have been paid to the United States, are not liable to State taxation. 12 Wh. 419; 18 Wall 29; Saunders on Taxation, 35; Desty on Taxation, vol. 1, p. 232; 24 How. 169; 8 Wall. 123; 8 Wall. 148; 13 Wall. 34; 12 Wh. 447 ; 5 How 504; 13 Wall. 129; 15 Wall. 284; 96 U. S. 447; Desty, vol. 1, 233; 12 Wh. 419; 13 Wall. 29; 103 U. S.' 460; 91 U. S. 275; 97 U. S. 466; 103 U. S. 344; Colley on Taxation, p. 95.

      Geo. W. Flynn, Assistant City Attorney, and H. A. O’Sullivan, City Attorney, for Defendants and Appellants.
   The opinion of the court was delivered by

Breaux, J.

The admitted facts are, that the relators conduct a commercial partnership as importers of foreign goods in New Orleans; that they (the goods) are foreign imports; that at the date of the assessment they had in stock $15,000 worth of imported goods, of which $1000 were in broken packages and $14,000 in original packages; that at no time during the year the quantity or value of imported goods in broken packages exceed $1000; that during the course of the year they sell the entire $14,000 in the original packages imported, and they are in their store subject to such sales as can be made during the year. It is also admitted that the import or impost taxes have been paid.

Application was made to the Board of Assessors for the cancellation of the $14,000 assessed upon goods in original packages, also to the Committee on Revision for the taxes for the year 1893.

The relators claim that the assessment is illegal; that the duty on the goods imposed by the act of Congress had been paid to the United States; that the tax assessed was in effect an additional import duty which could not be constitutionally imposed by State law.

The respondent, the city of New Orleans, defends on the ground that the relators had, by their disposition of the property, incorporated it in the mass of the property of the State; that by their act the importers have mixed the property with the other values in the State subject to assessment.

That a State law including original packages as property to be taxed would be repugnant to the prohibition of the Constitution upon the States not to lay any imposts or duties on imports is conceded by respondent.

1. The respondent argues that it is not essential to break every package in the stock of merchandise in order to commingle them with 'ohe other property of the importer.

2. That by the admission that the goods are in relators’ store, subject to sale, they have become taxable property.

Commencing with the case of Brown vs. Maryland, 12 Wheat. 447, the Supreme Court of the United States in a number of decisions has invariably held that imported goods from foreign countries are not subject to taxation under State laws until the packages are broken, or they have been sold by the importer.

Relative to broken packages: When the imported goods are broken up they become subject to taxation as part of the bulk of the property in the State. Desty, Vol. 1, p. 234.

Relative to sales: At all times between the arrival of the goods imported and the sale by the importer, if the packages are not broken from the original cases, they are not subject to State taxation. Low et al. vs. Austin, 13 Wall. 34.

With reference to imports the United States Supreme Court in another case holds: “ We have held property in one stage of its ownership,” prior to its sale, “not to be taxable,” and in a succeeding stage “to be taxable” after the sale by the importer in original packages. Murray vs. Charleston, 96 U. S. 446.

Breaking packages as applied to imported goods has a defined meaning.

The package consists of a number of things bound together convenient for handling and conveyance.

A package means a bundle put up for transportation or commercial handling. It is a thing in form to become as such an article of merchandise, or transportation or delivery from hand to hand. United States vs. Goldback, Hughes Reports, Vol. 1, p. 528.

The breaking or destroying the entirety of the package is a clear definition which does not admit of comment.

Applying these principles to the case at bar it is obvious that the packages were not broken and that the importers had not sold the goods.

The evidence shows that at no time during the year the quantity; or value of the imported goods in broken packages exceeded $1000, and that during the year the relators sell the entire $14000 remaining in the original packages in which they are imported, and that they are in their store subject to such sales as can be made during the year.

Any argument that there was a breaking of the packages or a mixing of part of the goods claimed as exempt from taxation is not sustained by the evidence. The sale during the year of the goods valued at $14,000 is made in the original.

The fact that these goods are for sale in the store does not change their ownership nor necessarily have the effect of mingling them with other goods that are not in packages.

The immunity from payment of the taxes follows the goods without reference to the place in which they are stored.

That they are offered for sale in unbroken packages in the importers’ store is not in effect the breaking of the packages, or such a' disposition of the goods as causes the immunity from the tax to end.

The writs were made peremptory by the judgment of the District Oourt.

We affirm the judgment.

Mr. Justice Parlange takes no part.


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    No. 11,316.
    State of Louisiana vs. John Stone.
    The defendant was found guilty of selling adulterated milk.
    The defendant haying handed two samples of milk, less than a pint in each, without the least objection, is not in a position before the court to question the validity of that part of an ordinance which provides that dairymen shall furnish, undei* the penalty of fine and imprisonment, gratuitously, samples of milk -whenever required so to do by the health officer, to be subjected to analysis.
    There should be some objection made in order that the vendor of milk may not appear to give unqualified assent to furnishing the milk asked.
    While defendant’s waiver precludes him from defending on the ground that the milk for analysis was unlawfully obtained, the fine imposed enables him to question the validity of the remainder of the ordinance.
    Under the police power and the statutes delegating authority to the municipality, the City Council may protect health by prohibiting the adulteration of milk, and may adopt ordinances to that end.
    Such ordinances are not open to the objection that they transcend the limits of municipal authority; the purpose being the protection of public health.
    To secure such a purpose persons and property are subjected to many restraints and burdens.
    Those who directly feel the restraints and burdens are presumed to be rewarded by the common benefit secured.
    The ordinances were designed to insure the purity of an article of food upon which many families are dependent. It is of universal consumption.
    The police regulations upon.the subject are designed to prevent fraud and protect health.
    Under the police power and the delegated authority the ordinance of the Council relating to the necessity of selling pure milk, is legal and the fine was legally imposed.
    These ordinances, without proof to the contrary, are not unreasonable. The standard adopted to test the purity of the milk can not operate to the exclusion of all other evidence upon the subject.
    Upon proof of the unreasonableness of the standard, that part of the ordinance relating to standard of purity of milk would be illegal and amenable to the charge of unreasonableness.
    There is no such proof of record.
    APPEAL from the First Recorder’s Court, City of New Orleans. Whitaker, J.

      Frank McGloin Attorney of Board of Health, for Plaintiff and Appellee.
    Jas. G. Walker for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

The defendant appeals from a sentence of the First Recorder’s Court condemning him to pay a fine of $25, and in default of payment to suffer imprisonment for thirty days on the charge of selling adulterated milk in violation of an ordinance of the city.

His ground of appeal is that the ordinance provides for the conviction of dairymen by means of evidence forbidden by the Constitutions of the State aDd the United States by ordaining that they shall furnish, under the penalty of fine and imprisonment, gratuitously, samples of milk whenever required so to do by the health officers, to be subjected to analysis.

The defendant on the trial objected to the introduction of proof as to the quality of the samples of milk.

The defendant delivered to the inspector two samples, one from each can of the milk he had for sale. Each sample consisted of a mall quantity, less than a pint, which the inspector handed to the chemist of the Board of Health.

After the analysis the inspector made an affidavit against the defendant, charging him with having violated city ordinance 6596, relatiug to adulterated milk.

As a witness on the trial the chemist testified that the milk was below the standard. With reference to the analysis he testified that it was accurate, and explained the method followed in testing the milk; that he had examined a large number of samples of natural milk, and that in no instance had he found them less than the standard adopted, except where the cows were diseased, or just before or after parturition.

The constitutionality of the ordinance is questioned.

The facts, as disclosed by the record, do not prove that the defendant was compelled to be a witness against himself and furnish samples of milk.

While in order to retain a right in opposition to any demand in execution of a law, on the ground of its illegality, there is no necessity to resort to downright resistance or to a display of combativeness; there should be sufficient objection manifested to render it certain that assent was not intended.

The facts upon this point are in evidence and have been considered.

They prove compliance and in consequence exclude certain constitutional objections that would necessitate a decision if the defendant had been forced to give up the samples.

Moreover: “ Where power is expressly given to municipai authorities to license and regulate.trades and callings generally, or certain specified trades and callings, or where power to exact licenses is implied, it will be found that such authorities have very commonly prohibited certain employments which affect closely the public health or safety, except the persons engaged therein take out licenses to prosecute such employments. This restriction is usually applied to the business or employment of architects, bakers, dealers in old rags or in meats and provisions, or in milk, or in spirituous liquors, or in dangerous articles,” and other trades and occupations. Parker and Worthington, p. 298.

License itself is one of the means of regulation.

It has the effect of lessening the number that would, without it, engage in the trade or occupation licensed and thereby to a corresponding extent decreases competition.

By the license the trade or occupation is brought more directly within the scope of the police power.

This being a fact of which it must be presumed the defendant was aware when called upon for samples, instead of objecting he delivered them to the inspector and continued selling the milk he had for sale.

He can not be heard to question the regularity or legality of the execution of the ordinance, to the execution of which be consented.

The acquiescence in the execution of the ordinance does not have the effect of defeating the plea of the illegality of the ordinance itself as violative of the Constitution and ultra vires.

The consent to a test does not make legal that which may be illegal in the ordinance under which the proceedings were instituted and the fine imposed.

The waiver of a citation and of other informalities under which a defendant may be brought in court and proof offered against him is not a waiver of illegalities of the law under which he is prosecuted and condemned. A similar rule applies to the case at bar.

The authority vel non of the municipality to pass the ordinance in question under the City Charter, and the implied power of the municipality under the charter^are remaining issues for our determination.

Under the charter the council has the power, and it is made their duty, to pass such ordinances and to see to their faithful execution as may be proper and necessary to prevent the sale of adulterated food and to punish those guilty of adulterating food and drinks.

The authority to punish the violators of ordinances drawn under Secs. 7 and 8 of the Charter is delegated by Act 41 of 1890. State ex rel. Joseph vs. Bringier, Recorder, 42 An. 1095; State vs. Boneil, 42 An. 1110.

The ordinance under this authority adopts a standard by which the adulteration of milk shall be determined, and ordains that any person found guilty of selling milk below the standard shall be subject to a fine of not more than $25 for each offence, and in default of payment to imprisonment for a period not exceeding thirty days, thus conforming with the requirement of the statute delegating authority to the municipality.

The statute and the ordinance were properly directed to fixing a legal standard to which all milk is subjected; to fixing penalties for violation of the ordinance and establishes the duties of the chemists by whom the analysis is made. These details are appropriately within legislative control; they do not transcend the limits of legislative authority. They belong to the class of police regulations designed to protect health and prolong life.

The intention throughout was to prevent the sale of adulterated milk.

The provisions fixing a standard are valid, as they merely control and regulate the method of ascertaining the quality

The design being to prevent the sale of adulterated milk and to regulate an employment that must be regulated, it was -not ultra vires on the part of the council to fix a standard of quality of the milk.

The exercise of trades and occupations are subject to reasonable conditions essential to health; if the power be not express, under the implied power the council would have the authority to adopt measures to maintain a standard of purity of that article of food to the extent of preventing the evil and injurious consequences to the public or to individuals.

The question was decided in State vs. Fourcade, 45 An. 717.

Judgment affirmed at appellant’s cost.


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    No. 11,258.
    Solomon Reinach vs. Miss Armantine Allard Duplantier.
    The property claimed was forfeited to the State in 1877 in compliance with Statute 96 enacted that year.
    In Í885 it was adjudicated to the State under tlie^provisions of Act 96 of 1882, for the State taxes of 1882 and 1883. It was also adjudicated to the State of Louisiana for the State taxes of 1880 and 1881.

      The plaintiff sued to be placed in possession as owner.
    The defendant filed no appearance in the suit prior to the confirmation of the default.
    Before the judgment was signed she moved for a new trial on the ground that the property could not be conveyed by the State under Act SO of 1888.
    Although the property was forfeited to the State in 1877, taxes were assessed upon it for 1880, inclusive, to 188f, for which it was sold.
    To obtain payment of taxes for these years the property could be sold under the law of 1888.
    Moreover, the defendant invokes the forfeiture to the State of a date preceding 1880, and the fact that the State became the owner; under that forfeiture.
    The owner prior to the forfeiture is without interest to have annulled a conveyance made by the State after she was no longer the owner; the State had become the owner by the forfeiture.
    PPEAL from the Oivil District Oourt for the Parish of Orleans. Monroe, J.

      Benjamin Ory for Plaintiff and Appellee.

      Lazarus, Moore & Lemle and I. N. Luee for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

The action is petitory.

In his petition the plaintiff alleges that the State of Louisiana had acquired the property by forfeiture under Act 96 of 1877 for State taxes of 1877 and 1878.

Moreover, that the State had acquired the same property by adjudications for State taxes for the years 1880, 1881, 1882 and 1883, made in the years 1884 and 1885; that for the years 1880 and 1881 the property was assessed in the name of Joseph A. Peniston, and for the years 1882 and 1883 in the name of the defendant; that the latter inherited from the former, and was placed in possession of the property on December 31, 1881.

The service oí the citation and petition was personal.

In due time a default was entered against the defendant.

About six months elapsed between the default and the date of the confirmation of the default.

After judgment had been rendered on the confirmation of plaintiff’s default, before the judgment had been signed, the defendant moved the court for a new trial, on the ground that the judgment was contrary to law and evidence, and that it was not competent for the State to make a sale of the property described in plaintiff’s petition, consisting of town lots, under the act of 1888.

The defendant argues that the land having been forfeited to the State, as alleged in plaintiff’s petition, it should have been sold under Act 187 of 1880 or Act 82 of 1884, and that the Auditor was without authority to convey title under Act 80 of 1888; that that act provides for the sale of lands that had been sold to the State for the taxes of 1880 and subsequent years; that the property having been forfeited to the State for the taxes of 1877 and 1878 was improperly assessed in the name of the defendant for the years 1880 to 1884, inclusive, and that a sale based upon that assessment is illegal; that lands belonging to the State are exempt from taxation; that the land, by the forfeiture for the taxes of 1877 and 1878, as alleged in plaintiff’s petition, became the property of the State and was not subject to taxation.

The defendant cites the case of Bradford vs. Lafargue, 30 An. 432, in support of the proposition that by the transfer to the State a taxes existing on the property at the time were extinguished by confusion, and that, subsequent to the transfer, the property is exempt from taxation.

Applying that decision to her case, she urges that after the forfeiture of the property to the State for the taxes of 1877 and 1878 the State became the owner and all taxes subsequent were extinguished by confusion, and that it was improperly assessed while it remained the property of the State.

In the last deed, dated in 1892, that under which the plaintiff' owns as vendor, the Auditor of the State declares that in pursuance: of Section 3 of an act approved July 12, 1888, No. 80 of 1888, he-, conveys the property described to plaintiff.

That it is the property which was adjudicated to the State for the: unpaid taxes of the years 1880 and 1881 in the name of J. A. Penis-ton, and in 1882 and 1883 in the name of A. A. Duplantier (the defendant), on the 20th December, 1884, by James D. Houston, tax collector, for unpaid taxes due the State of Louisiana, and that it had been duly advertised and offered for sale by I. W. Patton, tax collector, in accordance with the provisions of Act 80 of 1888; that the sale was made for the price of $102 cash.

Copies of the deeds referred to in this last act were admitted in evidence.

The forfeiture to the State under Act 96 of 1877 vested full title 3m the State of all the right and interest of the party assessed in the property, subject only to a right of redemption.

There being no informality in the forfeiture, it being alleged that the property was forfeited, and the defendant having conceded ex necessitate rei for the purpose of her defence on the rule for a new trial that the property was forfeited as alleged, it absolutely and unqualifiedly became the property of the State from the day the time to redeem had elapsed.

'The State acquired the immediate dominion.

Property is the absolute right of the owner to enjoy and dispose ■of a thing. The defendant is without interest to question the legality of the title conveyed under Act 80 of 1888.

A similar question was consideied in Morrison vs. Tax Collector, '26 An. 699. This court held that the former owner (who contended ■that the tax collector could not sell his land, it having been forfeited to the State) could not assume that position without putting himself out of court, because if his lauds were forfeited to the State, 'the only remaining right was the right of redemption.

The same may be said as applying to the case at bar; the former owner invokes the fact that the property involved was forfeited to the State. *•

In Breaux vs. Negrotto, 43 An. 432, the court is as emphatic:

The -divestiture -of title was complete, and it is immaterial to the ■owner prior to the divestiture in what manner the State disposes of her property.”

In Martinez vs. Tax Collector, 42 An. 677, we said: “No reasons are urged and can be urged why the State, being the owner of the property, could not sell the same and fix the price, and impose such conditions in the sale as she deemed fit and proper.”

The case of Morrison vs. Tax Collector, 30 An. 432, was decided under revenue statutes since repealed. At the time sales could be made upon payment to the collector of the amount of the State and parish taxes due on the property, and no provision was made to collect taxes upon property accruing after it has been adjudicated to the State.

In State ex rel. Dowers vs. Recorder, 45 An. 566, it is stated: “It likewise appears to be' clear that it was the definite purpose of the ^Legislature to make the property purchased by the State liable to subsequent taxation, State, parish and municipal, as will appear from the following, viz., 'the price bid and paid for said property shall be in full and final payment and satisfaction of all State taxes, together with all costs — and the purchaser shall take said property subject to all subsequent taxes.’ ”

The sale was made to the plaintiff for a price, including the taxes assessed on the property after it had been adjudicated to the State.

In two cases of recent date it was decided that in order to become the owner, the purchaser must pay all the taxes, including those assessed after the property had been adjudicated to the State. Breaux vs. Negrotto, 48 An. 482; Martinez vs. Tax Collector, 42 An. 677; Morrison vs. Tax Collector, 30 An. 432.

They are taxes due on the property which must be paid in order that the purchaser may have a complete title.

The law relating to a confusion of right extinguishing obligations, when the qualities of debtor and creditor are united in the same person, does not apply.

It was competent for the Legislature to enact a statute excluding the State from the operation of the law regarding confusion and authorizing the collection of a tax upon her own property.

The statute, 80 of 1888, provides for the sale of property bid in and adjudicated to the State for taxes for the year 1880, and subsequent years.

The taxes for which the property was sold were assessed within the years provided by that act.

The forfeiture to the State in 1877 does not affect the right to taxes for years subsequent to 1880 on property adjudicated to the State.

The defendant has no interest enabling her to have a nullity of a title pronounced.

The judgment appealed from is affirmed at appellant’s costs.


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    No. 11,295.
    New Orleans, Fort Jackson & Grand Isle Railroad Company vs. Horace B. Turcan.
    1. In cases of flood, as in. those of conflagration, services rendered voluntarily to preserve another man’s property from destruction are presumed to be gratuitous and give no cause of action.

      2. Under the present levee system of the State the riparian proprietor upon whose property a crevasse has occurred is not legally bound to close the same or to rebuild the broken levee. When a third person voluntarily furnishes materials and pays for labor in aid of closing the break, he can not call upon the owner of the land to reimburse to him his expenditures. To recognize such a right would be to practically return to the old system.
    APPEAL from the Twenty-second District Court, Parish of Plaque-mines. Livaudais, J.

      James Wilkinson for Plaintiff and Appellant:
    In May, 1892, it was the legal duty of the defendant to keep the levee fronting his Happy Point plantation in proper order, preservation and repair. Ordinances Police Jury Parish of Plaquemines; Act 84 of 1881; Barrow vs. Ilepler, 31 An. 362; Bass vs. State, 31 An., p. 503; Act 88 of 1880; Act 101 of 1882; Slidell vs. Grand-jean, 111 U. S. 321; 8th Howard, 66; Rev. C. C., Articles 665, 616.
    Where the defendant has established a dangerous agency in a levee, such as a rice flume, he is held in seasons of very high water to greater care in seeing that all necessary precautions are taken to avoid a crevasse. Act 113, Sec. 11, of 1890.
    Where a crevasse lias occurred through the gross fault and neglect of the most ordinary care, by defendant, and plaintiff has closed the same, thereby saving the property of defendant, and relieving him from liability for the immense damage his fault would have caused, he must reimburse plaintiff his reasonable outlay as negotiorum gestor in closing said crevasse, and that irrespective of whether plaintiff was saved from great loss or not by said closure, since the crevasse occurred through the gross negligence of defendant. Police Jury vs. Hampton, 5 N. S. 391; 2d Robinson, 139; 1 An. 22; 2 An. 116; 8 An. 68; 10 An. 395; 16 An. 133; 26 An. 1; 36 An. 151; 11 An. 993.
    Plaintiff is further entitled to a lien and privilege on the plantation whereon the levee is situated. Rev. C. 0. 3219, p. 1.

      E. Howard MeGaleb for Defendant and Appellee:
    1. Where plaintiff claims from the defendant damages for his negligence in failing to keep his levee in good order and condition, a duty alleged to be imposed upon him by the law of the State and ordinances of the police jury then existing, and the law creating such supposed duty has been repealed before the institution of the suit, plaintiff’s action must fail. The repealing law deprives him of all remedy. Act No. 81 of 1881; Act No. 13 of 1892; 109 U, S. 2S5; 32 An. 709> No law of the State or ordinance of the police jury of Plaquemines parish requires the front proprietor to fascine his levee, and he is not liable for damages for failing so to do, especially where it is shown to be usual and customary.
    3, A rice flume in the levee on the right bank of the Mississippi river, below the lower line of “Live Oak Grove Plantation,” in Plaquemines parish, is not considered a dangerous agency, being specially exempt from the operation of the law prohibiting rice flumes. Section 11, Act No. Ill of 1890.
    Especially where, as in this case, it is shown that the rice flume remained in position during the crevasse, and where two other crevasses occurred in the same vicinity about the same time during the high flood of the Mississippi river.

      Crawfisli and muskrats are more dangerous agencies In the levees o£ Plaque-mines parish than rice flumes.
    4. The plaintiff, claiming damages in this case, owns and operates a railroad having its track four arpents from the Mississippi river; it was as much its duty as defendant’s, the riparian proprietor, to keep the levee in repair. In closing a crevasse in the levee near its track it was protecting its own property, and can not visit the loss it has thus sustained upon the unfortunate defendant. The crevasse is not shown to have been occasioned by fault or neglect of defendant, and without fault there can be no liability. Nitro-glyeerine Case, 15 Wall, 524.
    5. The defendant must be presumed to have been diligent in protecting his property. •' Parceque chaeun est presume diligent a conserver son bien, ses efflets, et d’ailleurs nee alllicto danda est alllietio.” Duranton , Tome 17, No. 105.
    6. The crevasse was the result of force majeure exclusively and the services rendered by plaintiff in closing it are presumed to be gratuitous and give no cause of action, especially where, in doing so, it was protecting its own property. Section 25, Act of 1829, imposing upon front proprietors liability for damages for neglecting to care for and protect their levees was long since repealed. Leblanc vs. Pitman & Barrow, 16 An. 486.
    7. The war changed the legislation and jurisprudence which imposed on the front proprietors the duty of constructing and repairing their levees. Police Jury of Jefferson vs. Tardos, 22 An. 61.
    S. Upon the question of a negligence vcl non, the verdict of the jury, approved by the judge a j«o, is entitled to great weight and will not be set aside unless manifestly erroneous.
    The Supreme Court always,attaches great weight to the verdict of a jury on questions of fact, the credibility of witnesses, etc. H. D„ Yol. 1, p. 92, No. 1.
   The opinion of the court was delivered by

Nicholls, O. J.

Plaintiffs allege that the defendant is the owner of the Happy Point plantation, in the parish of Plaquemines, on the right descending bank of the Mississippi river. That said land was protected on the river front by a magnificent levee built by the State of Louisiana, through the defendant as contractor, who was paid by the State for the building of the same. That under the laws of the State and under the ordinances of the police jury of the parish, authorized by said laws, the legal duty of maintaining and keeping said levee in good order and repair was imposed on the defendant, the owner of said property. That though said levee was built of fresh earth and exposed somewhat to the river, the defendant negligently and imprudently failed to fascine the same or even put stakes or trash or any protection to said levee from the erosive action of the swells of the rising river, and although a storekeeper, conducting and carrying on a storekeeping business within fifty feet of said levee, he remained quiescent while during the months of April and May the river washed the outside of this levee down until it became a mere shell. That with a nominal expenditure the levee, which was 2/á feet above the highest flood level of 1892, could have been protected, but through a reckless indifference and disregard of his duties toward himself and the public, the defendant grossly, carelessly, negligently and imprudently failed to protect said levee with either sacks of earth, planks, willow brush or rice straw, and as a result of his negligence aforesaid, a hole appeared in said levee just below his rice flume, on or about the evening of the 17th of May, 1892, when the river was very high. That before then, and then, the neighbors and laborers besought the defendant to repair and protect his levee and to stop at least said hole, which was then spouting water at a distance of about seventy-five feet from his store, filling the road with water, and being alongside of a rice flume was known to him to be doubly dangerous, as in case of a crevasse and the washing out of said flume the depth of in-rushing water would be very great. That said appeals to defendant were disregarded by him and wilfully, negligently, carelessly and wrongfully the defendant utterly failed, omitted and refused to either protect said levee or .stop said hole or employ the necessary force or material to accomplish anything toward said end, and then on or about the 18th May, 1892, said levee, abandoned to its fate by its owner as aforesaid, gave way on the lower side of said rice flume, and the water rushed through with great force, flooding the plantation of the defendant and the surrounding country.

That the plaintiff corporation own and operate a railroad through the west bank of Orleans, Jefferson and Plaquemines parishes, which passes about four acres back of the crevasse on the Happy Point plantation.

That as soon as they became aware of said crevasse plaintiffs collected large quantities of materials, lumber and sacks and a large number of laborers and rushed them down to said crevasse on special trains.

That when plaintiffs took charge of said c.revasse it was increasing rapidly and was of great depth, said rice flume washing out while the work was going on, and, if unchecked, it would have certainly washed down a large and valuable store and dwelling house and stables of defendant, and swept a deep hole through the front portion of his property.

That moreover, if allowed to increase, the said crevasse would have become a very large one, and have destroyed not only his Own crops, but would have done over $100,000 damages to other crops, for which defendant would have been liable, as said crevasse occurred through his inexcusable and criminal negligence and want of care of his legal duty in the premises.

That only by the utmost diligence and strenuous efforts of plaintiffs was said crevasse closed, which, but for it, would be still running, inflicting untold disaster to the whole community.

That the closing of said crevasse cost the plaintiff corporation the sum of $5000, including the use of trains, for which they made no. charge.

That plaintiffs annexed to their petition a statement of the amounts of expenditures incurred by them in the closing of the said crevasse, and they averred that the amounts paid and charged therein were, just and reasonable.

That defendant is liable to the plaintiffs for said amounts, first, because they had performed a work that it was the legal duty of the-defendant to do, and had saved defendant’s property and relieved! him from heavy liability for heavy damages, and they are therefore-entitled to reimbursement for said amount expended, from the defendant, with a lien and privilege on the said property.

That defendant is moreover liable to plaintiffs by reason of the fact that said crevasse occurred through the negligence and imprudence of defendant, and that if said crevasse would have been allowed to run plaintiffs’ trains would have been stopped and plaintiffs greatly damaged by the aforesaid acts of omission of the defendant, and that the legal and honest expenses to prevent said damages were really damages sustained by them through the fault and neglect of the defendant as aforesaid, and for which he is liable to them. In view of the premises,- they prayed that the defendant be condemned to pay them the sum of four thousand four hundred and seventy-three dollars (that being the amount shown on the exhibit or account annexed to the petition), with legal interest from judicial demand, with first lien and privilege on the property known as the Happy Point plantation.

The charges made in the account were for sacks, lumber, nails, straw, drayage, labor and board.

The defendant pleaded the general issue and prayed for trial by jury.

The case was tried by a jury, which, by a vote of 9 to 3, returned a verdict in favor of the defendant.

Plaintiffs moved for a new trial.

In passing upon the motion for a new trial the district judge said that the jury had been instructed as to the law applicable to the case, as shown by the written charge of the court on file, and instructed that they were the judges of the law as well as of the evidence and of the sufficiency of that evidence and the credibility of the witnesses. That the application was made upon the evidence alone, and particularly upon the question of negligence vel non on the part of the defendant, of which evidence submitted to them the jury are the best judges. Por these reasons he refused the application and rendered judgment in favor of the defendant, rejecting plaintiffs’ demand in conformity to the verdict.

The plaintiffs have appealed.

On or about the 18th May, 1892, a crevasse occurred on the Happy Point plantation, in the parish of Plaquemines, belonging to the defendant.

As soon as the plaintiffs ascertained that fact they dispatched a train with materials to the place in order to assist in closing the break. There is no doubt but that they contributed large amounts of materials and furnished a great deal of labor, which they paid for in aid of this result.

We are called on to say whether plaintiffs are entitled to recover this amount from the defendant.

The question before us is not whether the defendant was legally bound to have taken all proper steps for the repair and protection of the levee on his property- — -whether he performed this duty or not — whether if he did not do so the parochial authorities would have had the legal right to have had it repaired or protected either directly or through the instrumentality of third parties or third parties could of their own motion have done so with a legal right to reimbursement, for no claim is asserted for expenditures made in the repairing or protection of defendant’s levee prior to its breaking. What is contended for is that expenditures made by the plaintiffs for the closing of the crevasse after it had taken place are recoverable from the owner of the property on which it occurred in an action as for moneys expended for his use and benefit.

We say in an action for moneys expended for his use and benefit, for that is the character of the one at bar.

No conventional contractual relations are advanced as having existed between the parties, and although averments are scattered through the petition to the effect that defendant was legally bound to have kept his levee in proper repair and properly protected— that he had violated that duty and that he was guilty of negligence, which led up to the crevasse as the cause thereof; and although the plaintiffs in one allegation declared that the amount of their expenditures were in reality damages sustained by them, we are of the opinion that plaintiffs’ demand is not one ex delicto for damages.

The plaintiffs do not ground their cause of action upon the allegations we have referred to — they were inserted in the petition in support of the theory on which this case is based, which, as we have said, is that the moneys expended enured to the benefit of defendant and were therefore to be repaid. They were doubtless suggested as useful for that purpose by the line of thought followed in Police Jury vs. Hampton, 5 N. S. 393. The fact that plaintiffs jn one of their allegations declare that the moneys expended by them were in reality damages to them can not change the character of the action as shown by the prayer and the pleadings as a whole, and where on the face of the papers the allegation to that effect is legally incorrect.

If the plaintiffs could recover from the defendant the amount demanded, they certainly could not do so under their pleadings, by way of damages. Admitting as true the fact alleged that they did expend the amount claimed in closing the crevasse on defendant’s land, that fact would not furnish legal evidence of damage per se to them to the same amount as resulting from the break — the outlays made would have no necessary legal connection with damages suffered — it would be no test of or measure of damages.

A third person may spend large amounts in closing a break in the levee on another’s property perfectly consistently with the fact that neither the crevasse nor its long continuance would affect his interest to the amount of a single dollar. Plaintiffs allege no damages outside of their expenditures.

Under the views we entertain of the action we confine our inquiry to the question whether plaintiffs can recover the amount sued for as for moneys expended for the use and benefit of the defendant.

At the very threshold we meet the rule announced in Watson vs. Ledoux, 8 An. 68, that “in cases of flood, as in those of conflagration services rendered voluntarily to preserve another man’s property from destruction are presumed to be gratuitous and give no cause of action.”

Did the plaintiffs adduce any fact on the trial of this case to take it out of the rule so proclaimed? We think not.

Formerly the front proprietors on the Mississippi river were required to construct the necessary levees and embankments along their front lines on the margin of the river at their own cost, and in default thereof the required work might be done at their expense by the parochial authorities, but this court in Police Jury of Jefferson vs. Tardos, 22 An. 58, held that the act of the Legislature, approved February IV, 1866, repealed all former laws authorizing the parochial authorities to construct levees at the cost and expense of the front riparian proprietors of the lands leveed, and since its date the parish could not force them to pay'the cost of a levee which she has ordered to be constructed along the front line and that no re-enactment of former laws had been made at the time of its decision. It further said: “ The legislation on the subject of levees since the late war has manifestly been framed with reference to the great changes which have been wrought in the eondit’on of the country by the late war. The vast expense formerly imposed upon the riparian proprietors of building the heavy embankments necessary on the Mississippi, and to make continuous repairs upon them, would now, under the altered state of affairs in regard to capital and labor, be utterly ruinous. Hence the policy was a wise one to relieve that class of our people by a change of the laws and regulations in respect to the levee system.”

We have been referred to no law, and we know of none, altering the situation as stated in the case of Tardos, making it the duty of front riparian proprietors to build the levees on their front either when new levees become necessary by gradual changes and encroachments of the river or from the sudden sweeping away of the old levees by crevasses. That work has now to be done by the public authorities. If the defendant in this case could not have been legally called upon to close the break which had occurred on his plantation either by the public authorities or by his neighbors, the plaintiffs could not by going forward of their own accord and closing the work primarily at their own expense force the defendant to subsequently defray that expense — to recognize such a right on their part would be practically to return to the old system. If the plaintiffs have any claim, legal or equitable as arising from the outlay made by them, it would be against parties other than the defendant.

The contention that the plaintiffs have through their action saved the defendant from damages for which he otherwise might be liable is predicated upon considerations remote and purely conjectural and speculative. They might under the former system have been adduced as an argument supporting and fortifying such a demand as was advanced by the Police Jury against Hampton (5 N. S. 393) under the then existing laws, but standing alone under the present condition of affairs they do not form the basis of a claim for reimbursement in this suit.

The conclusions we have reached and just announced do away With the necessity of our expressing any opinion upon the positions taken by the defendant that plaintiffs as operating a railroad running along the river and owning the lands upon which the tracks are laid on portions of the properties having fronts upon the Mississippi river would be as much bound for the repair and protection of the levees as the parties owning those properties directly upon the river, and that in making these expenditures plaintiffs were acting in their own name and for their own benefit and not for defendant.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed.

Rehearing refused.