text:
    No. 12,985.
    W. F. Kernan vs. H. S. Humble, et als.
    Syllabus.
    When a tort is perpetrated through the instrumentality of a combination or conspiracy, the party wronged and injured may look beyond the actual participants in committing the injury, and join with them as defendants ail who co-operated in, or advised, or assisted in the accomplishment of the common design ; for co-trespassers are bound in solido.

    ON APPEAL from the Thirteenth Judicial District Court for the Parish of East Feliciana. Golsan, J.

      Dart & Kernan for Plaintiff and Appellant.

      Milton A. Strickland for Defendants and Appellees.
    Argued and submitted January 20, 1899.
    Opinion handed down February 20, 1899.
   The opinion of the court was delivered by

Watkins, J.

This is an action in damages for a trespass alleged to have been committed by the several defendants with various persons unknown, on the plantation and premises of the plaintiff, and for which the latter demands compensation in the sum of $4,250.00.

The circumstances under which the alleged trespass was perpetrated are peculiar and the best statement of it which can be made is that furnished in plaintiff’s petition, from which we make the following extract, viz:

“That on the nights of September 28th and 29th, 1897, the said Peter Humble, Sr., the said Kirke Humble, the said Arthur Humble, the said Peter Humble, Jr., and‘Horace Humble, the latter .being a minor, and a child of Henry Smith Humble, for whose conduct, acts and torts the said Henry Smith Humble, his father is liable and responsible, all of said parish and State, did go on the said Riverside plantation, of the said Kernan, as petitioner is informed and believes, and go to the house of one R. Walker Hays, a tenant of the said Kernan, on the said plantation, and did then and there, as petitioner is informed and believes, threaten the said Hays to kill him and burn his house, if he reported an offense committed by the said parties at an entertainment given on said place on September 25th, 1897, -for the jjurpose of raising funds to build a church; and at the house of one Mike Turner, another tenant and employee of petitioner.

^hat the said Peter Humble, Sr., Kirke Humble, Arthur Humble, Peter Humble, Jr., and Horace Humble, the said Horace Humble being a minor and child of the said Henry Smith Humble, with sundry other parties, as petitioner is informed and believes, did pursue two colored mulatto women, Minerva Beattie, wife of John Beattie, and Rhoda Hays, both tenants of petitioner on said Riverside plantation, into the house of one Mike Turner, tenant on petitioner’s Riverside plantation, and then and there threaten the said Mike Turner and his wife and other parties then in said house, that if they did not turn out of the house the said mulatto women, they would kill the said Mike Turner,’and his wife; and otherwise terrorized and threatened the said Mike Turner and family that if they reported the said offense to the authorities at Clinton, they would kill the said Turner and his wife, and burn all the houses on the place.

“That the aforesaid Humbles, in company with a large crowd of persons from the county of Amite, State of Mississippi, as petitioner is informed and believes, on the night of Tuesday, September 28th, 1897, did go upon the said plantation, and go to the house of R. W. Hays, on said plantation, and notified the said Hays that they had burnt up one house on the plantation, and that they would burn every other house if he reported the said offense to the authorities at Clinton, and that they would kill the said Hays. That the said Hays, being so terrified, was afraid to remain in his said dwelling, and that on Wednesday, the 29th of September, for fear that his said residence would be burned, or that he would be killed, or some great bodily injury done him, moved out of said house his family and his furniture, and other things, and sought safety elsewhere.

“That the said Humbles assembled the^said crowd and announced their intention of bull-doozing the said John Beattie, another tenant and employee of petitioner; that the said John Beattie with his family,his house having been burned as petitioner believes by accident, although some of the said parties declared they had burned the same,- and in consequence of said threats, the said John Beattie, being a tenant of petitioner, abandoned his crop, turned loose his working animals, and left the place; that the said John Beattie, thereupon, transferred all of his crops and other things on said place to-petitioner.

“That on the night of Wednesday, September 29th, 1897, the aforesaid Humbles, with a large crowd, some of whom were from the State of Mississippi, visited the residence of the said R. W. Hays, who, having heard of their threatened coming to burn his house, to kill or inflict serious bodily harm on him, had vacated the same, and the' said crowd found no person therein when they came; that they wantonly killed his dog in the house, and fired their pistols and rifles to' a great extent; that the other lessees on said plantation, as petitioner' is informed and believes, are so terrified and alarmed, that they are-afraid to stay in their houses, and afraid to go to the fields and gather' their crops;

“That the said tenants of petitioner, as petitioner is informed and' believes, have done nothing whatever to justify, extenuate or excuse • the aforesaid Humbles and their said crowd for their said illegal acts ■ and doings; that some of the tenants of petitioner, as petitioner is informed and believes, have abandoned their crops; others are afraid’ to go into their fields to gather their crops, and petitioner fears that' they will leave said plantation, and that said crops are being seriously damaged by stock breaking in thereon, and that the same is-liable to waste, for the want of other labor to gather the same.

“That petitioner is informed and believes he will find great difficulty in getting labor for the balance of this year, for the next year; and the succeeding years, to operate the said plantation, because, of being in terror of the said Humbles; that petitioner to protect his employees and tenants has been compelled to buy arms, ammunition, ■employ guards, and hire teams and send them to the said Riverside plantation at great expense, because of the said unlawful and nefarious acts of the. aforesaid Humbles and their co-conspirators. That •.the crowd from Amite County, State of Mississippi, was present, and .took part in said unlawful acts on the aforesaid two nights, by the ■invitation and solicitation of the aforesaid Humbles.

"That petitioner has been damaged by the said unlawful and nefarious acts of the aforesaid Humbles in the sum of forty-two hundred and fifty dollars in the manner following, to-wit:

"For terrorizing and demoralizing said tenants on said Riverside plantation of petitioner, two thousand dollars.

"For estimated amount paid and to be paid for guards, teams, guns and ammunition to protect the tenants and employees on said plantation, two hundred and fifty dollars.

“For damage to crop by deprivation of stock, waste and loss of labor to gather the same, estimated five hundred dollars.

‘“For injury to the reputation of the said place, rendering it very 'difficult to get labor to operate said plantation by reason of the •threats and intimidations of the aforesaid Humbles and their co-•conspirators, the sum of one thousand dollars.

■“That petitioner believes, that for the protection of petitioner’s rights, an injunction is necessary to forbid and restrain the aforesaid Humbles from entering upon the aforesaid Riverside plantation ■of the petitioner, from interfering with, threatening, or troubling in ¡any manner or form whatever, the tenants and employees of petitioner on said plantation.”

Subsequently, plaintiff filed an amended petition, the purport of which is, that since the filing of his original petition, he has made the ■discovery that Peter Humble, Jr., is a minor, and that his true name 'is Ivy Humble. That he is a son of Henry Smith Humble, who is ‘liable for all the acts of trespass committed by his minor son, and for ¡the injury inflicted by him.

He charges that said Ivy Humble was one of the principal actors -in the transactions enumerated and described in the original petition.

For answer W. S. Humble, in his behalf, and as representing his two •minor sons, Horace and Ivy, pleads a general denial; and Arthur, Hirke and Peter Humble, making common cause, also plead the general issue.

.Inasmuch as the testimony was delivered by the witnesses in a narnative form, we liave chosen to reproduce a large part of same in like manner by making' excerpts therefrom as follows, viz:

Dr. R. L. Carruth sworn, says:

“He knows where Judge Kernan’s Riverside place is, he was there on the 2oth of September, 1897. At the time of the entertainment given by the colored people, there were present Kirke Humble, Peter Humble, Horace Humble, Peter Humble, Jr., myself, Bruce Hodges, a Hr. Frisbee, all those parties were more or less intoxicated. I ■ don’t know that there was any particular disturbance. When we arrived there, Mr. Kirke Humble was cursing, swearing and using violent language some distance from the negroes. That was, I judge, .about thirty-five yards from the place of assemblage. I don’t know that that had any effect on the negroes. After we got there Mr. Kirke Humble quieted down. I went to them and told them we were a peaceable crowd, and they seemed to be satisfied.

“I judge this was about nine or ten o’clock. The entertainment •continued at least an hour, after we got there. After it broke' up witness started home, and Peter Humble called to him to come back. 'There were a number of darkies coming along the road behind witness. They were carrying a torch-light. Peter Humble, Jr., and Peter Humble, Sr., were following a short distance behind them. Peter Humble, Sr., called to them to stop and hold on with that light, .and called to me to hold on, Doctor. I stopped and allowed the negroes to pass me. I don’t know whether Johnnie Beattie was in that crowd or not. At this time, the only white men I know of were pres■ent, were Peter Humble, Sr., Peter Humble, Jr., and myself. There were women in the crowd. I merely noticed there were women. Don’t know whether they were black or mulatto. When Peter Humble called to me, I dismounted and hitched my horse, and went back to Peter Humble, Sr., who was on the ground on foot. About the time I got to him, Peter Humble, Jr., who was on his horse, said to Peter Humble, Sr., 'don’t bother those negroes, let them alone.’ He said to Peter Humble, Sr., 'go get that light.’

“Peter Humble rode on after the negroes on his pony, and I saw him overtake them on the road, and ride for several moments by the side of the one that was carrying the torch. Then he came back to the other Humble and myself where we were, and said: 'Bud, I can’t get that light, John Beattie has got it, and won’t give it up.’

“I remonstrated to Peter Humble, Sr., and the only answer he gave me was: ‘You follow us.’ My answer was: ‘Why don’t you let thosenegroes alone ?’ When little Peter came and told him he could not get the light, he said: ‘go and get it.’ Again little Peter rode on and. left us, and passed out of my sight. Peter Humble, Sr., also went-ahead of me, and I followed after him, and when I overtook him, both of them were stopped at a fence; I saw nothing of the torch, light, and said to Peter Humble, Sr.: ‘Don’t bother those negroes any more,’ and asked him: ‘Where are you going? What are you going to do?’ He said: ‘You stay with us.’ Little Peter Humble left his-horse outside the fence, and the two got over the fence into a field, and walked off from me, and I followed in the direction they went, when I came to a cabin, and stopped at a picket fence. I saw at the door of the cabin, on the gallery, Peter Humble, Jr., and at the end or side of the cabin, Peter Humble, Sr., was standing. I stood where I was- and listened. I first heard a voice on the inside of the house saying: ‘What do you want, Peter? You can’t come in my house, I ain’t going to open the door.’ Little Peter Humble was standing at the-door and said: ‘Go to the door.’ Then, I heard the .voice of Peter Humble, Sr., but could not understand what he said. I heard the voice on the inside saying, ‘tell me what you got to say; I’ll put my ear right down to this hole, and nobody can hear what you say but me; there ain’t nobody else standing close to the door.’ Then, again, after hearing the voice of little Peter, not understanding what he-said, I heard from the inside the same voice. (All this voice, I have-been talking about was a man’s voice, saying ‘no, 1 don’t want no whisky, you can’t come in; I ain’t going to open the door!’)

*********

“When I saw Peter ECumble, Sr., tt the end of the house, I went to him and tried to persuade him to come away. I spoke in a whisper to him. He answered in a loud tone, and addressed me as doctor,then I left him and went hack to a small cabin, where I could conceal myself from view and there I heard Peter Humble, Sr., say;‘You don’t go towards that gun, I’ll shoot you, or I’ll blow your brains-out/ or some threatening remark. Then, little Peter left the door,, stepped off the gallery, walked a short distance and fell, and remarked that he was sick. I went to him and helped him on his feet, and assisted him with a good deal of difficulty to walk outside of the-yard enclosure, where he fell again. And at that time Peter Humble, Sr., came to where we were, from where he had been stationed at the end or side of the house, and when we got to where I asked him to-help me to get little Peter away from there, and proposed that we leave the place, get away from there, and go home, and he said: ‘No,, you stay with me, and we will go in that house.’ I told him he was-crazy, and that I would not assist him in doing anything of the kind. I begged him again to help me carry little Peter off, and about that time 1 heard a noise at the door of the house, as if it was opened, and. a voice asking: ‘Let me come out there, I want to speak to you.’ Peter Humble, Sr., spoke up and said: ‘Get back in that house, you ——, or I will kill you.’

“This was on Judge Kernan’s place. I heard only one voice in the house. Where I heard the voice was in Mike Turner’s cabin, in which he lived on W. F. Kernan’s place. I know where John Beattie lived, on Judge Kernan’s place. Mike’s cabin is a little less than a mile-from the cabin occupied by John Beattie. The house where John Beattie lived must have been burned, as I have passed by there and it. is not there.”

John Beattie, sworn, says:

“I lived in September last year on Judge Kernan’s Riverside place. I was renting land from Judge Kernan. I owed him. I was not at the church entertainment at the first beginning. I came there about an hour before it broke up. I think it was about ten o’clock before-my wife and children and sister-in-law were there. I saw Dr. Carruth, Kirke Humble, Peter Humble, Sr., Peter Humble, Jr., Mr. Bruce Hodges, and Mr. Frisbee. Mr. Frisbee lives in Mississippi. When I got there, the people did not seem to be disturbed, they were-selling and going on when I got there. They broke up I think about eleven o’clock. After they broke up, I started home with my wife and sister-in-law, and Henry Holmes aud the little children. The entertainment was north of my house, towards the Mississippi line.

“Mrs. ITumble’s house is south of my house. I started home, and just below the church, about a hundred yards, the roads forked, the right hand road went to my house, the left hand road to Mike Turner’s house, where my sister-in-law was going. I went as far as Mike Turner’s with my sister-in-law. I had a light. Little Peter Humble rode up and asked Henry Holmes to step aside, he wanted to see him. I told Plenry to give me the light, and I would walk on.

“Peter Humble, Jr., rode up side of Henry Holmes, and told him to blow the light out. I told Henry no, he could not blow the light out;; and he said ‘no — if we can’t blow it out, we will shoot it out.’ After they got over the fence, I went on to Mike Turner’s house, too. Directly Peter Humble, Jr., walked up in the yard, and I stepped in the house and shut the door. In about a minute or so, after the door was shut, another man came in behind the house, and poked a pistol through the crack, and told Mike Turner to open the door. Mike did not open the door, and the man outside told Mike to stand up to the door and hear what he had to say to him. He cussed, and told Mike, if he did not open the door, and get up there and hear what he had to say, he was going to shoot him. In a short while, they walked off out to the cotton patch talking. I stepped out on the gallery, I asked for Mr. Humble, and said, ‘Mr. Humble, I would like to talk with you.’ He said, you had better get back in there; I will shoot your head •off.’ That was, I think, Peter Humblej Sr. From his voice, I went hack into the house. My wife, sister-in-law, Rhoda Hays, Mike Turner, his wife, Columbus Dunn, Mike Turner’s step-daughter, Henry Holmes and children were in there.

“Mr, Arthur Humble told me at Mr. Felix Dreyfous’ store, that 'Tuesday morning, when I came into Clinton, that that racket that ■went on up there, if it was not stopped, I would be held responsible for it. He said his brother had got in a little disturbance up there on Judge Kernan’s place, and he was informed that I was going to •carry it to Clinton and report him. That if so, that he was going to get up a crowd of men and come over there and hurt some one.”

Mike Turner, sworn, says:

“I live at Judge Kernan’s Riverside plantation, lived there last September. I remember the night John Beattie, his sister-in-law, and a lot of them came to my house; they got to my house about ten • o’clock.

“They came in with my little children very calmly and said: ‘Papa, get up and open the door.’ Mr. Peter Humble came to my house and wanted to get in. Little Peter came on the gallery and said: ‘Mike you know me.’ I said ‘Peter, yes, I know you;’ he says, ‘I ain’t going •to hurt you.’ Peter Humble, Sr., says, ‘open the door, and he will give you a gallon of good whiskey.’ He, says ‘open the door for me, please; I ain’t going to hurt you nor neither your family.’ That Rhoda Hays promised to let him go home with her and he wants to go. ‘If you don’t open the,door, I will shoot you.’ I says, ‘Peter, 'here is a crack in the door, I can hear all you want to say to me;’ and the other one says: 'Get up to that door, and hear what that man has got to say; that is ail I know about it.’ I saw a pistol poking through the crack at the head of my bed. I had taken it to be a pistol at that, time. Peter Humble, Sr., said, if I did not get up to the door he would shoot me.”

Minerva Beattie, sworn, says:

“She is the wife of John Beattie. I was in the house the night, the disturbance took place. 1 was with my sister, and she asked me to go by with her; she was afraid to go, and 1 went by with" her. Myself and sister Rhoda were on the way, some parties behind hitched their horses 'and came up behind us, and we broke and run; we ran into the house. I think Johnnie Beattie fastened the door. They cursed and told Mike Turner to open the door. They told Mike-Turner they would not interrupt him if he would open the door, but did not say what they wanted. Mr. Peter Humble was at the back of the house, and threatened to shoot in if we did not open the door. There were four men, four women and three children in the house. I went under the bed. I was afraid they would shoot in the house. My sister and Mike’s step-daughter went behind the bed, which had a high headboard. The men stood around the hearth at the fire. We-got away from there about half past eleven o’clock. I left JudgeKernan’s place. I left, because I was afraid the white people would come back again, as they had threatened to do. I was afraid of the people at the supper. Peter Humble, Sr., Peter Humble, Jr., Kirke Humble and Dr. Carruth; they were all I knew to be afraid of.

“1 went to the supper about nine o’clock and did not stay long. There was no disturbance at the supjier more than the white people-were cursing around, and I thought there would be a disturbance, and I left. I don’t know who it was cursing. They wore down the road a piece, I hoard their voices.

“Mr. Humble, Dr. Carruth and young Humble all followed behind us. They were right close when we broke and run. They were right at us. . I did not know what they were following us for, and I was afraid; and we all run. It was the Humbles’ way to go by Mike Turner’s house, home.”

Robert Germany, sworn, says:

“He was living in the parish in September, last year; he knows the Humble boys. Arthur Humble invited him to join a crowd to go to a church. He said his brother and Bruce Hodges had gone to a colla■tion affair over there and. raised • — —. lie said they were drunk, and they did not do anything, and he said the boys had been back and .apologized to them, and offered to pay any damages for what they had done. I think he said the negroes agreed to drop it, but had since heard they had gone to Olinton to report them, and he wanted to get up a crowd of the -boys to go and tell them they had to drop it. I don’t know that Arthur said anything more. Witness said, if the negroes resisted, they might have some of them to kill, and Arthur .said he did not think they would light. I told them it ought to be headed by settled men, and not a lot of boys; and Arthur Humble said thei e would be old men at the head of it, either Mr.' Bruce Hodges’ father, or Mr. Talbert.”

W. H. Doughty, sworn, says:

“I was not invited by any of the Humble boys to go on Judge Kernan’s place. I did not join any crowd to do so. I heard Arthur and Kirke Humble make a threat against John Beattie, early Tuesday morning at Felix Dreyfous’ store, the day the house was burned. They were looking for John Beattie at the time, and said, if he went to town, they would do something. He don’t remember what. He knows that John Beattie was one of Judge Kernan’s tenants at that time. Arthur Plumble was around at that time with a pistol. He made inquiry about where John Beattie was. Kirke Plumble had ■something to say about John Beattie. He made some threat. Don’t remember exactly what it was, and wanted to know whether he was around or not. Arthur stayed at the store; Kirke went up the road toward Olinton, or Mr. Hodges’. They said if John Beattie went to town and reported the case, what they would do. Don’t remember ■what they said.” _

Rhoda Hays, sworn, says:

“She was present at that entertainment Saturday night. She was -disturbed at the entertainment. Some white boys came up to the church where we were. Some cursing and singing. I went to Mike Turner’s house. There was a crowd followed me. Mr. Peter Humble, Mr. Oarruth and young Peter Humble were in the crowd. I did not do anything but run. I was afraid, like all the rest were. I was afraid, because they were cursing and going on, and it frightened me. That was Saturday night. I was disturbed on Wednesday, and left home, and went to Mr. 0. Louis Talbert’s quarter. I was at home Tuesday night. There was a disturbance near my house on Tuesday might. There was a crowd came there to Mr. Walker Hays. 1 saw .them and heard a great lot of them. 1 did not know who the three were. By the noise of the horses when they left, it seemed like there were more than, three. It was dark, I could not see.

“1 recognized Mr. Frisbee’s voice in the crowd that night. I did not recognize the voice of anybody else. They told Mr. Hays if he reported them, they would come back and kill every colored man on the place and him, too. We stayed at home that night. I left home next •day, and went over to Mr. Talbert’s. Was not there Wednesday night. All the people on the place left, except two families. One of the families did not know anything about it. 1 went back home Thursday morning. I saw where some one had shot a dog on a cotton pile in my house. I saw horse tracks all around everywhere. The hands -quit work gathering the crops. They quit more than a week. The hands did not go back to work until W. IT. Doughty and Louis Talbert went to take charge.”

Albert Hays, sworn, says:

■‘I was there on Tuesday night when the crowd came there. When •they rode up they hailed. Ma answered them, and they asked was Mr. Hays at home. Mr. Hays said yes, and he opened the door. They said come out on the gallery, I would like to converse with you .a few moments No harm, no danger whatever. They said we came over to see about that little disturbance them boys had here on Saturday night; we heard you all had reported us They said if this thing is reported, we are going to burn the last house there is on the place, and swing the last negro man’s neck to a limb; and they said your’s, too, Mr. Hays. They said this thing lies in your power, and if it is reported, you will pay the penalty of it. They said you can go to town to-morrow and report it if you want, but you had better make your coffin before you leave home. If you can’t make it, you had 'better hire me, I am a good carpenter; and spoke and says I will give you fifty dollars to carry it to town. I guess you claim that them boys burned that house of John Beattie’s, and says the boys that were bere on Saturday night, has got your house surrounded. They are bere, and said, I guess you heard what I say. Mr. Hays told him yes, and he said good night. That was between three and four o’clock at alight. I did not recognize the voices of any of them, but old man Frisbee. We did stay there the next day. We left home that night. "When they did, I went down to Alvin Hess’ place in the Sixth Ward. Ma and the others went to Mr. Talbert’s. I went back to the. place Thursday morning. Left it on Wednesday morning, went after a wagon to move Ma and them. I could not get anybody to go in. there with a wagon, they were all scared after the white folks had been in there. I was afraid to go in there. Of the crowd. Pretty much,. all the hands left the place, and left their crops in the field. The hands were gone four or five days, both night and day. After that,. they would come back and work in the day, and go away at night.

“The cattle destroyed as much of the crop as they wanted to, a couple of nights after those fellows was in there because everybody was ■ scared to go for them, because of the knowledge there was a disturbance on the place.”

Jonas Barnes, sworn, says:

“All I know about Saturday night, I came to Clinton, and when I arrived at Mr. Felix’s store as near as I can come at it, about half-past seven, these men left the store ahead of me, and came over on the ■ south of the creek on Judge Kernan’s place. I then wént home and did not go to the entertainment. Tuesday night, ten minutes after two o’clock, these men passed by my house going toward Mr. Hays’. I saw nothing more of them that night. It seemed to me from the noise of 1he horses’ feet, there were may be twenty-five head of men. The crowd was coming from Beaver Creek ford, leading by John Beattie’s house. They came up a road which leads from Felix’s store across Beaver Creek and by Beattie’s. Wednesday night I heard a little noise of horses’ feet about fifty yards from my house. They did not come on by my house. From the north part of the place. Mr. Hays and Mike Turner live on the north part of the place. I was sitting out in a thicket, because I was afraid to stay in the house. About half-past ten o’clock I heard the fire of two guns towards Mr. Hays’ house. I went back in my house at half-past eleven o’clock, and between midnight and day, I heard the report of another gun. I heard no more from them that night. I had gone to bed, and heard’ the voice of a man say, ‘Who lives here?’ That was Saturday night. I was a tenant on Judge Kernan’s place at that time, also Walker Hays.

“My wife was scared, and left home with the children. I could not keep them there. Everybody on the place left, except myself, my grandfather and my grandmother. They were disturbed very severe-for about five days. The cattle broke in one portion of the field, and' we found it out. They did not destroy very much. The largest majority of the hands left out Wednesday morning. When Mr. Doughty-' came there and told them he had taken charge of the place, the hands-came back.”

Phoebie Clark, sworn, says:

“She lived on Judge Neman’s place last September. I have no-husband. I lived in one end of my house. I was at the house when-they came there Tuesday night. I heard some one come to Mxv Hays’ door and call, and when he called, I answered in my room. Then Mr. Hays answered and asked them what did they want. They asked him to step out on the gallery, they wanted to talk with him about the disturbance that passed down at John Beattie’s Saturday night. He says it did not happen at John Beattie’s, it happened down at the church and at Mike Turner’s. He said Mike Turner; O yes, that makes me kind of hungry for him. He said Mr. Hays, I. understand you all want to put the young men that were here Saturday night to trouble; but, let me tell you one thing, if those young, men are put to trouble, you all shall pay the penalty. Mr. Hays said-I don’t know anything about the disturbance more than that I have heard. He said Sunday evening, when Peter Humble was over here,. I got those boys to drop it, and have no more to do about it, and he-said as to reporting, I don’t know anything about it.

“He said, Mr. Hays, it is in your power to keep it out of the courthouse. If it gets into the court house, we will burn the last house here, and swing the last negrc maxx’s neck and your’s, too, Mr. Hays. He said I guess you will say those white men burned this house down-here; if they did, they were free white men fx-om the State of Mississippi. He said Mr. Hays, if you know the benefit of your life, you" will keep that out of the court house. If this thing goes into the.court house in Clinton, Mr. Hays, your doom will be in the bottom pit of--. You ain’t looking for heavexx, are you? If you is, you will íxever reach it. He said, Mr. Hays, if you go to Clinton to-morrow, make your box, and carry it with you. For you will never reach here any more. And the man oix the right'hand spoke, and' said if you can’t make it, get me -to make it. I am a pretty good carpenter, and the other man on the left hand said, I would give fifty dollax-s for it to get to Clinton. The man that was first talking said, Mi-. Hays, do you know who I am? Mr. Hays'said, I do not. He said I am a free white man from the free State of Mississippi, twenty^ years of age, with a white heart. Said Mr. Hays, you understand what I had to say, didn’t you? Mr. ITaysjsaid yes, sir; I did understand every word. He said tell all your surrounding friends what I had to say. Good night, and they went away. I did not recognize any of the voices, except old Mr. Erisbee. I stood up on my bed and looked all I could. I could not tell exactly how many there were. There were three right at the door with guns, and looked like about nine or ten behind, up 'the road. The clock had just struck three, not jfive minutes before they rode up. I was awake. I was over at Mr. .'Louis Talbert’s plantation with my children Wednesday night. I was scared to stay at my house. I returned Thursday morning about -eight o’clock. When I left home, I shut up my doors, when I re- ■ turned they were open and a dog lying on the cotton pile dead. That pile of cotton was inside the house. The dog was shot. I carried . everything I had to the woods before I left. All the hands scattered tout and went to other plantations .awhile, and some of them never ■came back to stay. I first became satisfied to return there to stay when Mr. Louis Talbert came and said Judge Neman had sent him there to protect the place. ITenry Holmes and John Quinn went back after they came down here and saw Judge Neman, and he sent them back. Mike Turner stayed up there with us for about a week, up there where Mr. Talbert was. Mr. Doughty was there tending to gathering John Beattie’s crop. He did not stay there at night. During this time, the stock eat up a good deal of our crop. The gates •would be open every morning, and when I would get there, I would run them out. I don’t know anything about Beattie’s crop. I lived about o£.e and a half miles from Beattie, way up near the Mississippi line. When I returned Thursday morning, there were horse tracks .all around the house.”

W. EL Doughty, recalled, says:

“I was employed by Judge Neman to take charge of the place and -gather the crops. I had John Beattie’s crop gathered, and saw after -all the balance the crops were injured by the stock. Mr. Hays’ crop -was damaged and John Beattie’s crop was damaged by the stock. -John Beattie’s corn was damaged about twenty-five barrels, and his cotton, I suppose a bale. I had six bales ginned for John Beattie. I ' had gathered about four or five bales. I paid fifty cents a hundred for the picking. I paid sixty cents a day for gathering his corn. I had four hands for two days gathering the corn. About $4.80. Judge Neman paid me for my services, forty-five dollars for gathering the crop, and seeing to the place. I had two hands for nine dollars a month and feed. For one month. Gathering John Beattie’s crop and doing other work on the place, it cost about four dollars a month each to feed the hands — making $26.00.”

Louis Talbert, sworn, says:

“I was employed by Judge Neman to go on the place, protect his hands and keep them there. The hands left the place during this disturbance. Some of them came on to my place. They said if Judge Neman did not put some man there, they would not go -back. I was there in the capacity as guard; a protector ten days.

“Judge Neman paid me twenty dolíais. I am on that place now, .as a tenant. I rent this year the John Beattie land for 1350 lbs. lint cotton. Judge Neman has to build me a dwelling to live in on the place. He was also to build a cabin for me on his land.”

Walker Hays, sworn, says:

“He lived on Judge Neman’s place last year. Some parties came to my house in September. The crowd rode up to my house about two o’clock in the morning and called for me three times before I answered. Then I asked them what they wanted. They said please step on the gallery, we want to converse with you a little. That there was no harm, no danger whatever. I opened the door, they asked me -to walk on the gallery. I told them I would not. I told them I could hear all they had to say where I stood. He said, Mr. Hays, our pres■ence here to-night is to see you on this little trouble that took place at John Beattie’s. I told them it happened out at a little church where they had an entertainment, and at Mike Turner’s. They said, Mr. 'Hays, we were notified that you wanted to put that nice young gentleman to trouble, and if you do, we will hang every nigger man on the place and you, too, Mr. Hays. I spoke and told them that trouble had been settled. That Mr. Peter Humble had come over on Sunday evening to my house, and brought with him John Beattie and Mike Turner. That little Peter had told me he was guilty of the charge' they made against him, and that he was very sorry and asked Mr. Hays; use your influence with the boys and get them to drop this -thing.

“I spoke to Beattie and Mike, and thought they ought to forgive him. He acknowledged he was sorry, and would not do so any more. T told the crowd also, that Mr. Bruce Hodges and Charley Doughty had been over to see me on the same business, on Tuesday evening',, and told them that I had told Mr. Ilodges and Mr. Doughty that it was dropped. The crowd replied, Mr. Hays, this is in your power to keep this out of Clinton,-and if you know the benefit .of your life, you. will do so. . They said, do you know we have made the attempt to burn, this house? I told them I did not. 1 believe that is about all they said. These parties coming there made me feel mighty bad. They said, if I went to town, I had better make my box, and carry it along, with me. John Beattie’s house was burned on Tuesday evening about three or four o’clock. Mr. Bruce Hodges and Charley Doughty came to see me on Tuesday following the disturbance at the church, on Saturday night. I left the place on Thursday. I was not at my house on Wednesday night. I came to town on Wednesday and stayed all night at Mr. Talbert’s Wednesday night, and went back Thursday morning. Mr. Talbert stayed down there with me at night. The-hands left on Wednesday. As I was returning from Clinton on Wednesday, I was met by one of the hands who came to me out of the swamp, and told me not to go on the place, as the hands had been threatened. This testimony is objected to on the part of defendant on the ground it is hearsay and irrelevant.”

W. F. Kernan, sworn, says:

“He is the owner of Riverside plantation in this parish. Some of' the hand;! that were on the place, left the place last year, and some declined to continue for 1898, preferred to go somewhere else. Some of them gave me this reason. They said they were afraid of the-Humbles.

“I suffered loss from John Beattie’s leaving. I had to employ a man to superintend -the gathering of his crop. I furnished him money to pay hands for picking the crop. My recollection is, I furnished Mr. Doughty twenty-eight dollars to pay hands for gathering the crop. I paid him forty-five dollars as wages for looking after the same. During the tíme I was paying Mr. Doughty wages for seeing to gathering the crop, he superintended -for a few daj^s hauling some lumber. He made one trip to Kentwood and back. Don’t remember whether he made two trips or not. John Beattie had two hands hired, whose privilege was superior to mine, and I paid them. I paid Henry Holmes thirty-seven dollars and ninety-five cents. I paid John Quinn wages, twenty-eight dollars and twenty-five cents. I paid for ginning six bales cotton, seven dollars and fifty cents. I paid for bag and ties-for six bales, four dollars and fifty cents. I took out of his crop mule hire, fifteen dollars. I paid for supplies for him $15.90. In the .spring I let him have an order on I. L. Heyman & Son, for oats and supplies, which I had to pay Mr. Heyman. I got from him six bales •of cotton and four hundred and fifty pounds lint for Mike Turner. Proceeds of cotton in excess of rent, ninety-seven dollars and thirty-five cents; corn, thirty-seven dollars and fifty cents. A small balance •due me on the crop transaction of twenty-seven dollars. The fact of John Beattie leaving the place caused me to make a disadvantageous compromise. I was notified that parties were coming into my plantation to burn up all my houses and run off tenants, and I had to send the sheriff and men up there to protect them. I think that was on a Thursday. After the second disturbance, as reported, I went over to Ohas. Kilbourne, sheriff, and asked him to send a deputy up with some men, to protect my property and keep them from burning up my houses, and running off my people. He kindly designated one of his deputies, and told him to get ready and go. It was a little difficult for him to get other men to go, and I had to go and hunt them up. Mr. Boyd and Mr. Walker, young men in my office, consented to go and protect my property. I got Mr. Mat Broadway and Mr. Hunter Payne and Mr. Lee White. I got a hack from Mr. Bennett’s livery stable, and they all started up, but, before going, I had to buy a shot gun for Mr. Broadway. And I bought two other shot guns; one for Mr. Louis Talbert and the other for Mr. Hays. Mr. Hays afterwards took off my hands the one I bought for him, and now has it. The two guns I now have left on my hands, cost me thirty dollars, and twelve dollars and fifty cents for the one Mr. Hays returned. I spent more than five dollars for ammunition, and had this trouble not occurred on my place, I would have had no earthly use for the guns or ammunition. I think the hire of Mr. Bennett’s hack was three dollars. Of the parties who went up in Bennett’s hack, only two of them charged me, Mr. Broadway and Mr. Payne. One I paid two dollars, and the other one dollar and fifty cents. I had to engage Mr. Talbert as a guard, to protect the hands, and I paid him twenty-five' dollars for his services. I was getting from John Beattie sixteen hundred pounds of cotton, and I rented to Mr. Talbert eighty or ninety acres for one thousand, three hundred and fifty pounds cotton, and built him a house with four or five rooms, a frame, comfortable house for a small family. I agreed to pay for the building of a good log cabin for him, which cost forty or fifty dollars, which was an unnecessary expense. I am satisfied the dwelling house cost over four hundred dollars, all cash. I rather look on the building of the residence as an investment. I would not have had the thing to have occurred for-five hundred dollars. That the place has suffered in reputation there is no doubt.

“The place has been damaged in its reputation, rendering it difficult to secure labor on it. What that damage is, I could not say.”

On this testimony, the case was submitted to a jury, who rendered a verdict in- favor of the plaintiff for twenty-five dollars, without making any mention of the plaintiff’s injunction.

From that verdict and the judgment of the court thereon, the plaintiff prosecutes this appeal, and the appellees, in answer to the appeal, pray for the reversal of the judgment and the rejection of appellants’ demand in toko.

Wo gather from this evidence, that the colored tenants on the plaintiff’s Riverside plantation gave an entertainment on the night óf the 28th of September, 189Y, to raise funds for the building of a church, and which was very generally patronized.

That while the supper was in progress, at about the hour of ten o’clock, the defendants, all of whom are white men, in company with a party of friends who resided in the State of Mississippi — this plantation being very near the State line — appeared, and, being in a state of intoxication, and using obscene and boisterous language, created a great disturbance, breaking up the entertainment, and causing the darkies to rapidly disperse and return to their respective houses.

Some of them were followed by the defendants, who acted and spoke in a threatening manner, and tried to obtain possession of torchlights they bore; and being thus pursued, they sought the shelter and protection of the neighboring cabin of Mike Turner, into which they withdrew, and closed the door behind them.

These parties immediately surrounded the cabin, and called upon its occupants to come out, threatening to shoot into the cabin if they did not.

Finding the darkies were determined to remain within, and not ■ open the door, the parties eventually left, one of the most conspicuous of their leaders having become so drunk he could not stand.

The following day Peter Humble, Sr., called on Mike Turner, and apologized for the conduct of himself and associates on the night before; but, ascertaining from common report in the neighborhood, that some of the colored people intended to give information of the affair of the Saturday night previous to the parochial authorities, a mob was-collected for the purpose of going on the Kernan place, and so awing, and frightening the negroes that they would desist from the prosecution; and of killing them if it was found necessary.

The proof is very conclusive, that this band of marauders were as*sembled at the instance of the defendants, or some of them; and that ail, or very nearly all of them, actively participated therein, and assisted in its consummation.

This mob arrived on the Kernan place at about the hour of three' o’clock, on Tuesday morning, surrounded the cabin of Walker Hays, and awakened the occupants.

That they stated to them, that they had come to warn the negroes that t-he affair of Saturday night must not be reported, and, if it was done, they would hold him responsible for it, and hang every negro on the place.

That there appeared to have been about twenty-five horsemen in the1 party, all of whom were armed; and while surrounding the cabin, they were engaged in shooting off their guns and pistols.

That as soon as the crowd dispersed, the negroes scattered into the-woods, and totally abandoned the plantation, and their crops were left in the fields ungathered.

That as soon as this information reached the plaintiff,'he called’ upon the sheriff of the parish for protection, and the latter sent a-deputy who was accompanied by a number of the friends of the plaintiff. who volunteered their services as guards, to go upon the plantation and remain thereon to protect and defend it against further trespass or depredations.

That this guard was furnished with arms by the plaintiff, and ammunition and subsistence; and they remained on duty for about ten days, when the present suit was filed, accompanied” with an injunction.

It is to obtain redress for this grievance that this suit was brought, and it is a recompense therefor that the plaintiff prays for judgment in damages against the defendants in solido.

The true amount claimed is three thousand, seven hundred and fifty dollars, instead of four thousand, two hundred and fifty dollars, as stated in the petition; which is the result of an incorrect addition, merely.

The proof shows and the fact is, that as the direct and immediate .result of the tort of the defendants, the crops of the tenants which •were abandoned, suffered very greatly by depredations of stock, and lack of cultivation. That several of the tenants who were maltreated ¿never returned to the plantation.

That the actual loss suffered by the plaintiff was very great, and that the reputation of his plantation was incalculably injured.

In our opinion the verdict of the jury falls far short of doing substantial justice to the plaintiff.

The conduct of the defendants was, to characterize it mildly, simply outrageous, and unjustifiable, and all who participated in these transactions or contributed thereto, are liable in solido to the injured party.

That there was a conspiracy among the defendants to terrorize and frighten the tenants of the plaintiff’s, the proof shows most clearly; .■and that the threats of violence on the part of the defendants and their ■associates had the effect of terrorizing them and driving them off the plantation is made equally plain.

There were no relations between the plaintiff and the defendants of .•any kind which could possibly have given the defendants’ conduct the .color of excuse or justification.

The governing rule in such matters is very well stated by Cooley, in his treatise on Torts, viz.:

“Mr. Cooley on Torts, page 125, referring to a conspiracy, says:

“When the mischief is accomplished the conspiracy becomes important as it affects the means and measure of redress; for the party wronged may look beyond the actual participants in committing the injury, and join with them as defendants, all who conspired to accomplish it. The significance of the conspiracy consists, therefore, in this, that it gives the person injured a remedy against parties not .otherwise connected with the wrong.”

At page 127:

'Most wrongs may be committed, either by one person or by several. 'When several participate, they may do so in different ways, at different •times, and in very unequal proportions; one may ¿lian, another may ■procure the men to execute; others may be the actual instruments in accomplishing the mischief; but the legal blame will rest upon all as joint actors.”

And at page 133:

'■“Where several persons unite in an act which constitutes a wrong to another, intended at the time to commit it, or doing it under the circumstances which fairly charge them with intending the consequences which follow, it is a very reasonable and just rule of law which compels each to assume and bear the responsibility of the misconduct of all. To require the party injured to ascertain and point out how much share of responsibility is fairly attributable to each, as between themselves, and to leave this to be apportioned among them by the jury according to the mischief found to have been done by each, would in many eases, be equivalent to a practical denial of justice. * * *

“While the law permits all the wrong-doers to be proceeded against jointly, it also leaves the party injured at liberty to pursue, any one of them, severally, or any number less than the whole, and to enforce his remedy, regardless of the participation of the others.” See Comitez vs. Parkerson, 50 Fed. Rep., 170.

The case of Dickson vs. Dickson, 33 Ann. 1361, presents a striking parallel in its facts to the instant case.

The report shows that the defendants formed a conspiracy “to deprive plaintiff’s plantation of its laborers by threats, promises and in•dueements.

“That in prosecuting this common intent, they visited the plantation frequently, * * * and by means of threats, persuasions, and otherwise, induced the laborers to refuse to contract, or to abandon their contracts, and leave the plantation.

* * ***** * * * *

“It is manifest,” say the court, speaking through Mr. Justice Fenner as its organ, “that these acts, thus wantonly and maliciously done 'by defendants, were, in the sense of the law, faults, that is, acts done in the exercise of no' legal rights of their own, and in violation of the rights and feelings of the (plaintiff) who was entitled to pursue his lawful business without interference or .hindrance from defendants.

“For the damages resulting from such acts, the defendants are responsible.”

That case was tried and decided in the lower court, without the intervention of a jury, and the district judge awarded the plaintiff the sum of two thousand, five hundred dollars against the defendants in solido, and this court affirmed his judgment.

Quite a similar case is stated in Cooper vs. Cappel, 29th Ann. 213, from which we have made the following extract, as quoted in the brief of plaintiff’s counsel, after having verified the same, viz.:

“There was, beyond doubt or question, a lawless combination, a conspiracy, a pre-arrangement by the defendants, to go to the gin-house at a late hour — it was after sunset when they left the store, getting, dark when they reached the gin-house — to take and carry away the cotton by force, by the use of deadly weapons, firearms, provided in advance, if Cooper could not be overawed and the anticipated resistance repressed by numbers and by bluster.

“Such lawlessness must be repressed, must be put down by the strong hand of the law, and wrong-doers must be taught That the way of the transgressor is hard.’ It is only when the laws are enforced and obeyed, when rights are observed and respected, and when the citizen can feel that he is secure in his person and property, so long as he-does no wrong to others, that there can be peace, good order and prosperity in the land.”

Our predecessors amended the judgment appealed from, and increased the-allowance, and awarded the sum of three thousand dollars-against the defendants in solido.

Having examined this case with the most diligent and painstaking care, and given all the testimony serious consideration, our conclusion is to set aside the verdict of the jury and the judgment thereon based,- and render judgment in favor of the plaintiff for an increased amount, namely, the sum of two thousand dollars, and, also, to reinstate, maintain and perpetuate the plaintiff’s injunction.

It is therefore ordered and decreed, that the verdict of the jury be-’ annulled and set aside, and the judgment thereon based, likewise; and' it is further ordered and decreed that the plaintiff do have and recover of and from all the defendants in solido, excepting TIenry Smith Humble, the sum of two thousand dollars.

It appearing from plaintiff’s petition that it is not alleged that Henry Smith Humble, one of the defendants, was either present participating in the alleged trespass that is complained of, or aiding or cooperating with others, though absent; but that, as the father of Horace Humble, a minor, who was present, actively participating therein, he is liable and responsible for his conduct, acts and torts, and finding this statement borne out by the record, and entertaining the opinion, that he is only liable for actual damages, we think the amount of plaintiff’s recovery, as to him, should be fixed at the sum of three hundred dollars.

It is therefore ordered and decreed that the plaintiff do have and' recover of and from Henry Smith Humble, as the. father of his minor,. Horace Humble, the sum of three hundred dollars as actual damages,, same to be taken and considered as only a portion of the two thousand dollars for which judgment is herein rendered against all other defendants in solido.

And it is further ordered and decreed that plaintiff’s injunction be-reinstated; and that same be maintained and perpetuated, and that, the defendants and appellees be taxed with the costs of both courts, in solido, excepting Henry Smith Humble, who is held liable for a prorata share thereof.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 12,983.

      W. S. Frazee, Tax Collector, vs. Achille E. Dupre; Vincent Boagnt vs. Achille E. Dupre. (Consolidated.)
    Syllabus.
    One selling real property on terms of credit and retaining a vendor’s lien and' mortgage on the property /sold as security for the purchase price, subsequent to the passage of the license statute of 1894 conferring a first lien and privilege on all property, real and personal, of the license debtor in-favor of the State and paz-ish, must be presumed to have possessed full' knowledge thereof, and made the sale subject to the contingency that said privilege of the State and parish might prime his mortgage and vendor’s-lien on the proceeds of its sale.
    ON APPEAL from the Eleventh Judicial District Court for the-Parish of St. Landry. DuBuisson, J., ad hoc.

    IT. J. Sandoe for Tax Collector, Third Opponent, Appellee.

      Kenneth Baillio for Boagni, Appellant.
    Submitted on briefs February 7, 1899.
    Opinion handed down February 20, 1899.
   The opinion of the court was delivered by

Watkins, J.

As the appellant’s counsel has presented us with a very careful analysis of the pleadings, in his brief, we have reproduced .same in its entirety, as follows, viz.:

“The first of the above suits was a proceeding by rule against the •defendant, Achilla E. Dupre, claiming the sum of two hundred and ten dollars for license due by him to the State and parish, as retail merchant and liquor dealer, for the year 1898. Pending a hearing on the rule, plaintiff in the second suit, Vincent Boagni, obtained an order of seizure and sale on a note for the sum of six hundred dollars, dated August 16, 1894, payable one year from said date, bearing eight per cent, interest from maturity, and ten per cent for attorney’s fees, and secured by vendor’s privilege and special mortgage upon the following described property, viz.:

“A certain tract or parcel of land situated in Plaisance, in this parish, together with the gin-house, gin-stand, steam engine, and all ■other improvements thereon, having a front of one arpent on the ■Grand Prairie and Opelousas road, and containing two superficial arpents, bounded on the north and east by land of Frank L Davy and south by the Opelousas and Grand Prairie road.

“To the tax collector’s suit, the defendant pleads the general issue, and in the suit of Vincent Boagni (a sale having been ordered of the above property), the tax collector intervened, and by third opposition ■claimed a preference over the proceeds of sale of said property to the extent of the aforesaid sum of two hundred and ten dollars, with two per centum per annum thereon as interests, and ten per centum for ■attorney’s fees; and obtained an order directing the sheriff to retain in his hands an amount sufficient to pay said sums, interests and attorney’s fees.

“To this third opposition suit of the tax collector, Vincent Boagni, seizing creditor, answered first by a general denial, denying the right of the tax collector to be paid by privilege and preference, and asserting his preference over the proceeds, in virtue of his rights as vendor and special mortgage creditor. He further averred that the revenue laws of the State of Louisiana, in so far as they purport to grant to the State and parish a first privilege upon all property, movable and immovable, of the license debtor, even as against antecedent mortgages, is violative of the Federal- and State Constitutions, which expressly forbid the passage by the legislature of any law impairing the obligations of contracts, or divesting vested rights; and he accordingly prayed that said revenue laws, in so far as they purport to grant, or do. grant such extraordinary rights to the State and parish, be decreed unconstitutional, null and void; and he prayed that the demands of the tax collector be rejected and disallowed, and that the-disputed fund be ordered paid over to him. There was judgment in. favor of the tax collector, ordering the sheriff to retain the amohnt of the aforesaid State and parish licenses, with interests and attorney’s-fees as prayed for. Fr.om this judgment, Vincent Boagni prosecuted, the present suspensive appeal to this court. The appellant having died after perfecting said suspensive appeal, his heirs and legal representatives were, on proper motion, made parties to this suit, and are-now prosecuting same.”

It appears from the record, that the tax collector proceeding by rule-against defendant as a delinquent license payer, filed the requisite proceedings and obtained the necessary order from the judge, on the Lth of July, 1898, and in the petition it is alleged, that the defendant is indebted to the State and the parish of St. Landry in the full sum of two hundred and ten dollars, for licenses due the State and parish “for carrying on the business of retail liquor dealer within the territorial limits of said parish during the current year 1898.”

It is further alleged “that said license has been delinquent since-March 1st, 1898,” and that there is due, in addition to the capital sum of said license, as a penalty, “two per centum per month interest thereon from March 1st, 1898, until paid, and ten per cent additional on said sum, principal and interest, as attorney’s fees;” and his prayer is, for a rule on the defendant to show cause why he should not pay-same.

While these proceedings were yet pending, Dr. Vincent Boagni obtained an order for the seizure and sale of certain real estate of the-defendant, and all the buildings and improvements thereon, in the foreclosure of a vendor’s lien and special mortgage thereon, as securing the payment of a note of the defendant for six hundred dollars, payable to his own order and endorsecTat twelve months after its date.

This sale was granted by the judge on the 19th of August, 1898, and the note and act of mortgage were executed on the 16th of August, 1894, said mortgage and vendor’s lien having been stipulated in an act of sale from Godfrey Dupre to the defendant, of the latter date.

The recital of said act of sale and mortgage is, that the consideration thereof is the sum and price of six hundred dollars, represented by one note of the purchaser, of the aforesaid description, said note having been paraphed ne varietur in order to identify same with the .act of sale and mortgage.

The record shows, that the act of sale and mortgage were duly in.scribed in the mortgage office, on the day of their execution.

Pending the executory proceedings, the tax collector filed therein a •third opposition on the 8th of October, 1898, which is founded upon .his prior proceedings by rule against the execution debtor, to which reference is made; and he then alleges, that said defendant debtor '“is insolvent and has no other property than that seized in the executory proceedings,” and from the proceeds of the sale of which alone .said licenses and penalties can be paid, and upon which the State and parish have a first lien and privilege, and that they are consequently entitled to be paid therefore by preference and priority.

To that effect, the third opponent prayed for and obtained an order requiring the sheriff to hold in his hands a sufficiency of the proceeds to pay and satisfy said licenses, penalties and cost, subject to the final •decision of said opposition.

The purport of the answer of the executory creditor is, in substance, that he is entitled, to be paid in preference to any and all other •creditors, in virtue of his mortgage and vendor’s lien, from the proceeds of sale; and if the revenue statutes on which the counsel for the tax collector rely as conferring a preference on the State and parish are so construed, same will have the effect of impairing the obligation ■of his contract within the terms of the contract clause of the federal -constitution.

Its further averment is, “that the law as existing at the time said note and special mortgage were executed, is a part' of said contract, ■and any subsequent law that abridges the obligation of the contract is violative of the Constitution _ of the United States, and therefore void.”

• The evidence clearly shows, that the defendant was engaged in retailing spirituous liquors in the parish of St. Landry, during the months of January and February, 1898, and had failed to pay either the State or parish license therefor, anterior to the filing of the plaintiff’s rule.

The proof shows that the property not only sold for an insufficient .amount to pay both creditors, but an amount insufficient to pay the State and parish licenses and penalties.

In the course of the statement of his reasons for judgment, the judge a quo said:

“There is no merit in the contention (of the defendant) that Section 28 of Act 171 of 1898, impairs the obligation of his contract in violation of the Constitution of the United States, for the simple reason that said section is the same ipsissimis verbis as Section 27 of Act 150 of 1890, as amended by Act 106 of 1894, which was in existence and in force at the time that the said contract was entered into.”

The following are the provisions of the original Act of 1890, and the amendment of 1894, viz.:

Act 150 of 1890.

■ * * * * * * * * * * * *

“Section 2. Be it further enacted, etc., That all unpaid licenses shall bear interest at the rate of two per cent per month, from the first day of March, and the payment thereof shall be secured by first privi.lege, in favor of the State, and the tax collectors shall collect said license and interest in the manner provided by existing laws.”

Act 106 of 1894.

************

“Section 2. Be it further enacted, etc., “That Section twenty-six (26) of Act No. 150 of 1890, be amended and re-enacted so as to read as follows: That all unpaid licenses shall bear interest at the rate of two per cent per month from the first day of March, and the payment thereon (thereof) shall be secured by first privilege in favor of the State upon the property, movable or immovable, of the /delinquent ■owing the license, and the tax collector or ex-officio tax collector shall collect said license and interest in the manner provided by existing laws.’ ” (Our italics).

The foregoing act was finally passed and approved on the 7th of July, 1894, prior to the execution of the act of sale and mortgage in •question on the 16th of August, 1894.

Consequently, the original creditor, Godfrey Dupre, was charged with full knowledge of the existence and import of this enactment when he made sale to the defendant, and accepted the mortgage and vendor’s lien upon the property conveyed as a security for the pur- ■ chase price; and he must be presumed to have entered into the engage-meat with full knowledge that'his rights might ultimately be defeated, by the first privilege of the State and parish.

Act 109 of 1894 remained in force until Act 171 of 1898 was enacted; but said latter statute had no effect upon the rights and obligations of the parties, because it was not approved until July 14th, 1898,. just one week subsequent to the date of the filing of the tax collector’» rule, and that is the date at which the test must be applied.

Therefore, we are dispensed from giving any consideration to that act, Section 26 of which only secures the licenses of the State and parish by a “first mortgage,” only; and as the act of mortgage and vendor’s lien on which the creditor relies were executed since the act. of 1894 went into operation, it would serve no useful purpose to discuss and decide the constitutional question raised.

Judgment affirmed.


text:
    No. 12,971.
    Missouri, Kansas & Texas Trust Co. vs. M. N. Smart, Assessor, et als.
    Syllabus.
    The police jury having canvassed and compiled the returns of an election, and proclaimed the result of same to have been in favor of the special tax in aid of a railway enterprise, and thereafter passed an ordinance levying the tax in accordance therewith, it is without legal capacity to subsequently pass another ordinance repealing the former one, and annulling the tax — the rail way having been in the meanwhile completed and put in operation.
    Having proclaimed the result, and levied the tax, the police jury is without interest or legal right, to defend a mandamus of relator to coerce the collection of the tax, upon grounds which can alone be asserted by taxpayers-who had long since acquiesced in the election, as well as its result.
    ON APPEAL from the Twelfth Judicial District Court for the Parish of Vernon. Bead, J.

      •T. Alexander and Pujo & Moss for Plaintiffs, Appellants.

      J. Henry Shepherd for Defendant, Appellee.

      Argued and submitted January 26, 1899.
    Opinion handed down February 20, 1899.
   The opinion of the court was delivered by

Watkins, J.

This is an action to compel the assessor of the parish of Vernon to extend upon the parish tax rolls, the special five mill tax as levied by the police jury of that parish on the 6th oí December,. 1895, in aid of the Kansas City, Shreveport and Gulf Railway Company; and, also, against the'sheriff and ex-officio tax collector, to compel him to collect said tax according to law, same being accompanied-by mandamus.

The police jury was made a defendant for the purpose of enabling' the plaintiff to make proof, if necessary, of its full compliance with-the requirements of the ordinance levying the tax which was condi- • tioned upon the completion of the railroad and putting it in operation within a certain time.

The assessor answered, denying that he had any power to assess and levy the tax; the sheriff answered denying that he had any power to collect the tax; and the police jury answered, asserting the legality and validity of the ordinance they had adopted purporting to repeal-the ordinance levying the special tax, and the illegality of the tax.

On'the trial, there was judgment in favor of the defendants, and the plaintiff has appealed.

The substantial facts exhibited by the record which antedated the-institution of this suit in July, 1898, are as follows, viz.:

That an agreement was made between a committee of tax-payers and the Kansas City, Shreveport and Gulf Railway Company, whereby a special tax of five mills for ten years was to be voted for, levied, and paid to said railroad company in consideration of the location, construction and operation of its line through said parish.

That upon the petition of a sufficient number of property tax payers of said parish, the police jury thereof ordered an election to be held in accordance with Act No. 35 of 1886, whereat was to be submitted the question of the levy of said special tax.

That, on the 6th of December, 1895, the police jury met and proceeded to canvass and compile the election returns; and they proclaimed, as the result of said election, that the tax had been voted for by a majority of the electors entitled to vote, both in number and' amount.

That immediately thereafter, the police jury promulgated the aforesaid result of the election, and formally adopted an ordinance levying the tax of five mills on the dollar upon all the taxable property of the parish for a term of ten years, in aid of said railway company, the said tax to continue in force until the entire ten years tax shall have been collected and paid over to the railway company.

That the railway company located, constructed, operated, and is .now operating its line of railway through the parish of Vernon, withJin the time, and in accordance with its contract, and the terms and provisions of the police jury ordinance.

That a stubborn resistance to this tax was made at the polls, and • great dissatisfaction was produced by this result, and which eventuated in suit contesting the legality of the tax by a portion of the taxpayers ; and, amongst others, was the ground alleged that frauds and ' irregularities had been perpetrated by election commissioners at certain polls; and, also, by the police jury in canvassing the returns, and '¿in declaring the result of the election.

, 'That the defense consisted of a denial of the plaintiffs charges, and -a counter charge by the railroad company of frauds and illegal acts on the part of the petitioners, on account of which the apparent majority favoring the tax was largely reduced.

That propositions for a compromise of that litigation were submitted and accepted, the purport of which was the company should release and thereafter hold harmless against the payment of said special tax, all the members of the tax-resisting association; and a consent judgment to that effect was agreed to and signed, the proportion of the tax assessable against them aggregating only about ten per cent of the whole amount thereof.

That subsequent to said compromise, the police jury, on the 30th of March, 1898, passed an ordinance, in terms, repealing the prior ordinance of December 6th, 1895, levying said special tax.

It is to meet that exigency that this proceeding by mandamus was 'instituted; and it is apparent that the answers of the tax collector And assessor are predicated upon that alleged repealing ordinance.

And the answer of the police jury denying the legality of the tax is the attempted defense of the rights and interests of these property tax-payers who did not join in the aforesaid suit.

We malse the following extracts from the brief of defendants’ coun.sel, which sets out very fully the substance of the answer of the police jury, viz.:

“E. E. Smart, president of the Police Jury, in response to the mandamus, avers that the relators filed in the office of the clerk of the parish of Vernon, an agreement by which relators released from the payment of the five mill tax for ten years, four hundred and sixty-nine tax-payers of Vernon parish, who claimed to have voted against .said tax in a suit filed by these tax-payers seeking to annul the ordinance levying the tax, for the reason that a sufficient number of fraudulent votes were counted in favor of said tax to make a majority; .there being but four hundred and sixty-three votes promulgated in favor of said tax, with four hundred and fifty against the tax, and that the agreement of release absolutely released four hundred and sixty-nine persons. Among those being released, were the very persons who were charged to have been counted for the tax, when in fact, thy had voted against the same. The president of the police jury in his answer avers that, by said release, relators destroyed the validity •of the ordinance in their favor; that the number released being in excess of the number claimed to have voted for the tax, is a clear admission that said tax was not voted by a majority of the property tax-payers voting in said election. Respondent further avers that by reason of said public notice that there was no majority in favor of •said tax, the police jury rightfully repealed said ordinance. Respondent further avers, that the police jury was no party to said compromise, in which a larger number of voters and tax-payers were released from the operation of said tax and presented with an honorarium of one thousand, five hundred dollars for attorney’s fees. Respondent further avers by said act of compromise relators attempted to effectually prevent any further judicial inquiry into said election, and setting the same aside on the ground of false voting respondent further answers that a 'tax in aid of a railway is a solidary obligation, •each voter casting his ballot for a tax on all the property in the parish and not on his individual property, and that he shall only pay a tax when a clear and clean majority of all qualified tax-payers, shall vote 'in favor of the same. Respondent further avers that a release of one is a release of all; that to now levy a tax of five mills on a portion of the uroperty of Vernon parish for ten years will be to deny the people of Vernon parish the Constitutional guarantee, that taxation shall be -equal and uniform; that a tax of five mills on only a portion of property of like character in the parish of Vernon would impose an unjust and unequal burden, create a favored class of citizens; will destroy the equality and uniformity for taxing' purposes by the State and parish; will create a condition of affairs in matters of taxation in said parish, repugnant to good morals and conscience; and the law cannot enforce such a partial method of dealing with the citizens of the same territorial jurisdiction and create invidious discrimination, by the law.

“Respondent annexes and makes part of his petition, the petition of the citizens and taxpayers against the railroad company and police-jury, together with the answer and compromise agreement filed in the clerk’s office, October 12,1897. The petition of citizens and taxpayers of Vernon Parish vs. President of Police Jury of Vernon Parish et als. filed on February 27, 1896, within the legal time required by law, charges gross frauds against supervisors of said election and fraud in the canvass of the-vote by the police jury. They especially set out that the commissioners, naming them, at Kirk’s box, Precinct two, Ward two, fraudulently returned as voting for the tax the following legal qualified electors: Alfred Self, Enoch Self, J. J. Masters, Charles Martin, I^ewis Martin. Your honors will find this direct charge in this petition, and on examination, your honors will further find that these self-same persons are relieved by the notarial release of the company. Their names appear in the roll of the redeemed for Ward two. The petition further charges that more than fifty ballots from which the word For was stricken, meaning, ‘For the Tax,’ were actually counted for the tax, when according to every rule of canvass these ballots should have either not been counted at all, or according to the intent of the voter, which most clearly means against the tax, for why should a voter desiring to vote for the tax, scratch out the very words which would most clearly express his intention ?”

I.

The first and most important question which arises is, whether a police jury, having canvassed and compiled the returns of an election in reference to a special tax in aid of the construction of a railway,, and declared that said special tax had received the sanction of a majority of the votes east, and officially promulgated the result thereof, and levied the tax, had the legal competency to pass a subsequent ordinance, ex propria motu, repealing the one first enacted, and annulling- the tax, long after the railway company had accepted the tax, -completed its railroad and put same in operation.

In Construction Company vs. Police Jury, 44th An. 863, this question was considered and decided, and Mr. Justice Breaux, speaking for the court, said:

“The authority which ordered the election, on the petition of the tax-payers, which promulgated the returns and declared them adopted, and legal, assails the returns as null, and asks that a recount be made and the nullity decreed.

“The defendants are estopped.

“It proclaimed the regularity of this election, which resulted in the acceptance of a contract and the performance of work. It can not question the binding force of its own acts.

* * -x- * -x- . -x- -x -x -x- * *'

“The repeal of the Ordinance 634, adopted for the levy of a special tax, is without effect.”

In State ex rel Construction Co. vs. Tax Collector, 48th An. 28, the court, speaking through the Chief Justice as its organ, said:

“The question is, whether, after having exercised the power or “duty entrusted to it, it can subsequently reverse its actiop and stay “proceedings, because it may suppose that its duty was incorrectly “performed. We do not think it was charged with the duty of cor“reeting- its own mistakes, if mistakes it made. There would be no “end of litigation if such a doctrine were true. When the Council “levied the tax it was ordered to levy, the subject matter passed out of “its hands. It had no further legal interest in the premises. It had ■“performed the specific duty imposed upon it, and its connection with “the levying of the tax ceased. Darcantel vs. Slaughterhouse Co., 44 “An. 044.”

In our opinion, the principle announced in those decisions is •correct, and they meet our approval and concurrence; and being applied to the instant case, are conclusively against the legality of the alleged repealing ordinance. It has no power or efficacy to bind the assessor and tax collector in the collection of said special tax, and we decline to give same any effect.

II.

Applying the principle announced in the preceding paragraph to the respective contentions of the tax collector and assessor, they must be deemed and held groundless for the same reason.

For the police jury ordinance levying the tax remaining in force, those officers plainly come within the power and scope of the plaintiffs’ writ of mandamus.

Their demands are, therefore, rejected.

III.

The substance of the contentions of the police jury appears to be an assault upon the special election, on the ground that same is and was illegal, null and void, because of certain alleged frauds and irregularities in the proceedings leading up to said election, and in the management and conduct thereof, but all of which, necessarily, antedated their examination and tabulation of the election returns; and their official proclamation that the election had been duly and regularly carried in favor of the tax. And it is obvious that their official proclamation of the result of the election, preceded the adoption by them of an ordinance levying the special tax.

Their averment is that, subsequently to said proclamation and ordinance, quite a large number of the property taxpayers of the parish entered a suit, within the time prescribed by law, contesting said election upon various grounds, but that during the pendency thereof, a compromise of same was effected between the parties litigant, the suit dismissed, and judgment'entered therein.

That, notwithstanding, the plaintiffs in that suit represented less than ten per cent, of said special tax, and that the railroad had been intermediately constructed and put in operation, the police jury— who were made merely nominal parties defendant — set up as a defense to the collection of the tax, the illegality of - the election which they had officially declared legal and valid, and long after they had passed an ordinance levying the said tax.

More particularly stated, their grounds of resistance may be summarized as follows, viz.:

First — That relator, as one of the stipulations of the compromise, agreed to release from the payment of the tax, during the entire ten year period of its duration, all of the plaintiffs in the aforesaid suit; and that among those released were many of those who were charged to have been counted for the tax, when, in fact, they voted against the same.

Second — That by said release of said plaintiffs, more than four hundred in number, relator destroyed the validity of the ordinance of the police jury which levied the tax in its favor — the number released being greater than the number claimed to have voted for the tax, thus leaving subject to the payment thereof less than a majority in number of those voting at the election.

Third — That a tax in aid of a railway is a solidary obligation, each-voter casting his ballot for a tax on all the property in the parish, and', not on his individual property, and upon the condition' that a-majority of the property taxpayers shall vote in favor of the same;- and that, consequently, the release of one, is the release of all.

Fourth — That by this release of the property of the parish the ordinance will be deemed to have violated the constitutional guarantee-that taxation shall be equal and uniform; and that a tax of five mills1 on only a portion of the property of the parish would impose an unjust and unequal burden, create a favored class of citizens, and destroy the equality and uniformity of the -tax, and create an invidious distinction among taxpayers not authorized or contemplated bylaw.

But, in stating these defenses, the police jury are confronted with' the indisputable fact that the plaintiffs in that suit were the only taxpayers of the parish who resisted the payment of the tax in the’ manner and within the time prescribed by law; and those who did not' join in that suit are conclusively presumed to have acquiesced in the-result of the election as it was officially proclaimed by its ordinance, and can not now be heard to complain in a court of justice.

That it having canvassed and compiled the returns of the election,- and made due proclamation that the tax had been voted for and carried by a majority of the votes legally cast, has no better right or' greater power to ask a court of justice to render a judgment contrary thereto, than it had to pass an ordinance repealing their prior-ordinance, levying a tax in pursuance of their proclamation.

We are bound to accept, as the initial point from which to consider and decide this ease, the proclamation by the police jury, that the election had been carried for the tax, and their ordinance levying-the tax.

That matter has been finally and irrevocably settled, in the manner the law' has directed, and can not r.ow be reopened and reviewed at the behest of the police jury, in the interest of that portion: of the .taxpaying inhabitants who failed to make protest seasonably for themselves, and particularly at a time long subsequent to the relator’s .acceptance of the tax, and the construction of the road and putting' .same in full and complete operation.

In any view that can be taken of the present contentions of the ■police jury, the relator’s release of a portion of the citizens from the payment of the tax, after it had been actually levied, could have no bearing on the legality of the election; nor could it affect the uniformity of the tax, or increase or diminish the burdens of those who were not released.

The tax once in esse became incontestible and certain, and a release <of some of the taxpayers from the payment of it does not cause an increase in the rate of taxation due by others.

The constitutional question sought to be raised by the police jury is .without any foundation in law or jurisprudence.

“Constitutional provisions that all taxes shall be equal and uniform •“apply only to general taxation, and have no application to local •“assessments. Am. and Eng. Ency. of Law, Vol. 25, p. 495.”

The provisions of the Constitution that “taxation shall be equal .and uniform throughout the State” does not apply to, or preclude local assessments or special taxes levied in pursuance of special provisions of law, in aid of public improvements. Cooley on Taxation, ■p. 438.

In support of that proposition, that author cites the following decisions of this court, viz: Municipality vs. Dunn, 10 An. 57; New Orleans vs. Elliot, 10 An. 59; Yeatman vs. Crandall, 11 An. 220; Drainage Co. Case, 11 An. 388; State vs. New Orleans, 15 An. 354; See also Munson vs. Board of Commissioners, 43 An. 15.

“It is only when statutes impose taxes on false and unjust principles, or which operate to produce gross inequality, that courts can declare them void.” People vs. Bank, 5 Allen, 428; Warren vs. Henly, 31 Iowa, 31; Howel vs. Bristol, 8 Bush, 493; Turner vs. Althans, 6 Nebraska, 54; State vs. Railroad Co., 40 Md., 22; Beck vs. Miller, 19 Fed. Rep., 377.

“The want of uniformity must be the direct result of the law itself, and not the maladministration of a proper law.” 25 Am. and Eng. Enc. of Law, p. 88. Citing: Mortgage Co. vs. School District, 21 Fed. Rep., 151; Cummings vs. Bank, 101 U. S., 153; State vs. Maxwell, 27 An., 723.

In that last ease, the court very pertinently said:

“This question was decided in the case of Harrison vs. Tax Collector, “26 An., 699, in which the court said: ‘While the exempting of the “property in contravention' of the Constitution may be void, the levying of the tax is constitutional. * * * There is, then, no inequality of which the plaintiff can complain.5 We adhere to the opinion then expressed. We can not perceive how a taxpayer can justly complain that the levying of a tax is unequal, beeause some property in this State has been omitted in the assessment, either through inadvertence, or because it is supposed to be exempted by an unconstitutional law, for the effect would be the same.

“We imagine that there never has been an assessment which “embraced all the property of the State, but that fact did not render “the assessment unconstitutional.55

The constitutional requirement, that taxation shall be equal and uniform, applies to the levy and not the method of collecting the tax. 25 Am. and Eng. Enc. of Law, p. 57.

“Although an exemption from taxation may be illegal, such a '“trifling exemption would not necessarily invalidate the whole ordinance which levies the tax, unless it could be shown that, by reason of “such exemption, the taxes on the property had been increased.” Am. and Eng. Corp. Cases, Vol. 43, 330.

“ ‘It is an interesting question; what is the effect of an illegal “exemption of property from taxation upon the validity of the general “assessment, and the answer to that question depends upon the effect “of such illegal exemption upon the rate or amount of taxation, which ‘“is assessed upon the other beyond what would be assessed upon it, if “there had not been an illegal exemption. The mere omission by “an assessor of certain property from his assessment list, without '“authority of law, will not invalidate the entire assessment, as long “as the illegal exemption can not be shown to have increased the ■“amount of the tax, which the other taxpayers have been required to “pay.5 Tiedeman on Municipal Corporations, Section 270, p. 526.”

In Construction Company vs. Police Jury, cited, supra, it was said in the syllabus:

■ “An agreement relieving a corporation from the payment of the “five-mill special tax for a consideration, is not in contravention of ■“Art. 203 of the Constitution, so long as no injury arises therefrom.55

And in the body of the opinion the court said:

“The police jury can not defend and defeat the obligation on the ground that it made a discrimination operating unequally against taxpayers (p. 867).

“The release of certain taxpayers by the railroad company does not “operate injuriously ; the rate of taxation remains the same.”

In our opinion the defense set up by the police jury is untenable, and can not be sustained; on the contrary, that the demand of the relator is just and well founded.

It is therefore ordered, and decreed, that the judgment appealed from be annulled and reversed; and it is further ordered, and decreed, that the relators’ provisional mandamus be made peremptory as to all the respondents, and that they be taxed with all costs of both courts.

Blanchard, J., takes no part in this decision, having been formerly of counsel for plaintiff.