author: WaticiNSÍ J.

text:
    No. 13,139.
    Maude V. Petitpain vs. Mutual Reserve Fund Life Association.
    Syllabus.
    A warranty stipulated, in a contract of life insurance, must be strictly complied with, or literally fulfilled, before tbe insured is entitled to recover on tbe policy. A warranty need not be material to the risk, because it is of itself an implied agreement that tbe representations warranted, are material.
    APPEAL from the Civil District Court, Parish of Orleans. St. Paul, J.

      Parherson & Tobin for Plaintiff, Appellant.

      Denegre, Blair & Denegre for Defendant, Appellee.
   Tbe opinion of tbe court was delivered by

WaticiNSÍ J.

This suit is brought by tbe beneficiary of a policy of insurance upon the life of Frank H. Petitpain, for tbe sum of five thousand dollars — tbe plaintiff having been his wife, and now his surviving widow to whom the policy is made payable upon tbe death of her husband.

The petition alleges, that the policy was issued on the 30th day of March, 1897, by the defendant, and that same was in force, at the time the assured died on the 16th day of December, 1897, and that she is entitled to recover the amount thereof — proof of death having been made and furnished to the company as required by the terms of the policy.

For answer, the defendant pleads a general denial, and further answering, sets up the following defenses, to-wit:

1st. Recause, the assured committed suicide, and death by suicide is not a risk assumed by the policy within three years from its date.

2nd. Because, in his application, the assured stated that he was, at the date thereof and had been, in good health during the past twelve months; and that he was at the date of said application, and had always been, in good health and free from all ailments, diseases, weaknesses and infirmities; whereas the truth and fact were to the contrary- — said, assured having had, amongst other ailments, diseases, infirmities, and attacks of fits.

3rd. Because, in his said application the assured stated, that he had never had any illness, local disease, or injury, mental or nervous disease or infirmity, or any disease, weakness, or ailment whatever; whereas the truth and fact were to the contrary — said assured besides, being subject to fits, had, some years prior to his application for membership as aforesaid, been shot in. the back and suffered injury and sickness therefrom.

4th. Because, in his said application, the assured stated that he had never been an inmate of any infirmary, sanitarium or hospital, whereas the truth and fact were to the contrary — said assured having' been an inmate of the Charity Hospital of this city, and had been treated therein.

5th. Because, in his said application the assured stated that he had not consulted, or been attended by any ifhysician within nine years, whereas the truth and fact are to the contrary — said assured having; frequently consulted physicians during that time.

For the foregoing reasons, the defendant avers that it is not liable to the plaintiff in any sum whatever.

On the issues thus formulated, the case went to trial, testimony was adduced and considered by the judge below, and he thereupon rendered a judgment in favor of tiro defendant — rejecting the demanda of the plaintiff.

It is from that judgment that the plaintiff prosecutes this appeal.

The defendant claims that the application of the assured forms a part of the policy of insurance — same being read into the contract— and that tlio policy declares, that the latter is predicated upon the application, and that the application for membership in the defendant association, and the policy of insurance that was issued to the assured, warranted “that all of the answers and statements contained therein, by whomsoever written, were full, complete and true; and that it further agreed that the constitution and by-laws of the association, with the amendments thereto, as modified by the board of directors, were made a part of the policy, and that if any of the answers or statements made, were not full, complete and true; or if any condition or agreement should not be fulfilled, as required in said application or in the policy, then the policy issued thereon should be null and void, and all money paid thereon forfeited to the association.”

The policy was issued and bears date March 30, 1897, and the. assured died about the 16th day of December, following — his body having' been found in the Mississippi river; but there is no proof furnished by the record as to whether his death was the result of accident or intention.

The proof does show, that there were some bruises, of not a very serious character, found upon the body, but insufficient to have reasonably indicated the cause of his death.

The policy acknowledges the receipt of $99.24, as the first annual premium paid thereon, upon the delivery thereof to the assured; and, eveidently, no further premium was paid, as the stipulation of the policy is, for an annual premium of $71.10 on the 6th day of March of each succeeding- year during the continuance of the policy.

The policy contains the stipulation, that if it “shall have been in continuous force for three years from its date, it shall, thereafter, be incontestable, except for non-payment of premiums as herein provided for, etc.”

It further provides that “death of a ’member caused by engaging in any violation of law, or by his own hand, whether sane or insane, voluntary or involuntary, is not a risk assumed by this contract, within three years from this date.”

These are the two provisions of the policy upon which the defendant mainly relies.

In Part I of the application for membership and policy of insurance, wo find the following provision:

“It is hereby agreed that the answers and statements contained in Parts I and II of this application, by whomsoever written, are warranted to bo full, complete and true, and that this agreement and the constitution and by-laws of the association, with the amendments thereto, as modified by the board of directors, in adopting other plans and systems as authorized by said constitution and by-laws, together with this application, are hereby made parts of any policy that may bo issued thereon.

“That if any of the answers, or statements made, are not full, complete and true, or if any condition or agreement shall not be fulfilled as required herein, or by such policy, then the policy issued hereon shall be null and void, and all money paid thereon shall be forfeited to said association.”

In Part II of the application, we find the following:

“I do hereby agree and warrant that the foregoing answers written to the above questions, are my answers, and are full, complete, correct and true, and that the same shall be made a part of my application for membership and policy of insurance.”

This application was signed by the applicant, in the presence of the medical examiner.

The following extracts are made from Part II of the aforesaid application, to-wit:

Q — “(2) Are you now, and have you always been, in good health and free from all ailments, diseases, weakness and infirmity ?

“A. Yes; except yellow fever eight or nine years ago. Had no physician.”

vf- -X- *

Q. — '“(12) Have you ever had any illness, local disease, injury, mental or nervous disease or infirmity, syphilis or any disease, weakness, or ailment of the head, throat, lungs, heart, stomach, liver, kidneys, bladder, or any disease or infirmity whatever? If yes, state nature, date, duration and severity of attack, and whether fully recovered ?

A. — “No; except as above.

* * * * * *

Q- — “(15)

“A. How long since you consulted or were attended by a physician, give date? A. 9 years ago.

“B. State name and address of such physician ? B. No physician.

“C. For what disease or ailment? C. None.

“D. Give name and address of such physician who has 'prescribed for or attended you within the past 5 years, and for what diseases or ailments, and date ? D.

“E. Have you had any illness, disease or medical attendance not stated above ? E.

Q. — “(17) Have you been an inmate of any infirmary, sanitarium, institute, asylum, or hospital; if so, where, when, duration, for what cause. State expressly each and every case ?

A. — “No.”

From the parol evidence adduced on the trial, we gather the following- facts pertinent to the issue before the court:

One physician attended a patient bearing the name of Petitpain at his office, and at the .Charity Hospital; and that physician states that Dr. Miles attended him previously. That was in the year 1894.

A witness states that he was a collector for Dr. Miles just prior to his death, and had been so engaged for four or five years previously; that he knew a man by the name of Petitpain who came to Dr. Miles’ office, stating that he worked on ships; and that he had seen the same man there frequently, two or three times a week. He states that he had bills against this man in favor of Dr. Miles to collect.

Another witness states that he knew the assured and was employed on the same ship, and that he knows that he had something like fits; that he knew of his falling down on the deck at sea; saw this more than once. When in that condition, he was unconscious for awhile, and remained so ten or fifteen minutes. The witness states, that he knew that the deceased had fits once in the office of the steamer Aransas. Witness states that he was the purser of the ship.

A certificate was procured from the Oharity Hospital bearing date January 25, 1898, and signed by the clerk of that institution, which shows an extract from the admission book, to the effect that Frank Petitpain, clerk by occupation, native of Mexico, age, 21 years, last from Matamoros, was admitted on December 11, 1888, and discharged December 18, 1888. .

A like certificate is produced from the Plotel Dieu, which shows that F. H. Petitpain entered that institution on January 24, 1889, and was discharged January 28, 1889. That his trouble was a “gun-shot wound; wall of abdomen. Born in Matamoros, Mexico, age 21 years.”

The brother of the deceased as a citizen of New York, was interrogated under commission, and we extract the following from his depositions :

“Third interrogatory:

“Do you know whether or not said Frank ÍL. Petitpain ever suffered from attacks of fits, or had fits; if you say that you do know, please state fully your knowledge on the subject?

“Say whether or not you have personally seen him suffering from any attacks?

“If you say that Frank II. Pititpain suffered from such attacks, say how frequently; and idease state whether or not he suffered from any such attacks during the year 1891, etc.”

-x- * * *

The answer is as follows:

“Yes; I know that he had them up to the time I left New Orleans to go to Europe, which was, I think, about 1894. While he was in Mexico, previous to ¿oing to New Orleans, he had them only occasionally. This was in the years 1885, 1886, or 188Y. lie was engaged as purser on one of the Morgan line boats, and on one occasion he wont to Saunders’ Plantation in St. Mary Parish. He had a difficulty with the son, or nephew of the proprietor of the plantation, about a certain bill of lading. My brother thought the fellow was trying to trick him, and refused to sign the bills of lading, or take the sugar, and as lie turned to go, ho was shot. He recovered from that, but after that he had fits very .frequently. I saw him have as many as eight or ten or fifteen a day, when he was under treatment of Dr. Miles. After Dr. Miles’ death he was treated by another doctor; I believe Dr. Bloom. He became better, and did not have them so often. This was between the years 1888 and 1894. At the time. I lived in New Orleans, I believe March, 1894, he had gone for three or four months without having any fits.

“Prior to that time,_ ever since he was wounded in 1888,- he had them every year, and very frequently throughout the year. I saw him again, and again suffering from these attacks of fits. He was living at my house once, and had them there. For a time he was in the habit of carrying, sowed in the inside of his coat, a piece of linen with instructions written thereon in indelible ink, that should a fit take him in a street car, to look in such a pocket and they would find a vial of some medicine to give him. He was apt to be taken with these fits in any place.”

This witness says that his brother was treated for these fits by Dr. Miles and Dr. Bloom, up to the time he left New Orleans; that he was treated in the Charity Hospital, at New Orleans, by Dr. Miles for the gun-shot. That a year later, ho was taken to the Hotel Dieu and that the bullet was extracted, one year after he was wounded.

Counsel for plaintiff makes the complaint, that he was a willing witness, and bad eveidently given to the company items of his information, so as to enable its counsel to propound the foregoing inter' rogatories. He, also, insists that his statements are extravagant and unreasonable.

On the contrary, the statements of this witness are, in some respects, born out by the statements of other witnesses, and by the certificates from the Charity Hospital and the Hotel Dieu.

The Captain of the steamship Olympia, of the Oteri Line, was interrogated as a witness, and says that he knew Frank IT. Petitpain, who was with him as purser on the steamship Rover, in May and J une of 1897 — that was only a month or two after the policy was issued— that he does not know whether or not he was subject to fits; but that he had an attack of fits once on board of his vessel, and he thinks it was in June, 1897.

He states, that upon his recovery from the attack, he said that he had an attack "about four or five years before. The witness says, this was the only occasion he had fits while he was with him on the vessel.

He says that he and the engineer held him for, perhaps, about fifteen minutes; that he held him in his arms and was assisted by the engineer; and if they had not done so, he would have “knocked himself all to pieces; he would have torn himself úp.”

The foregoing is the substance of the parol testimony; and in our opinion, it is diametrically opposed to several statements contained in the application of the assured.

For instance, he was asked the question if he was then, or had he .always been in good health, and free from all ailments, diseases, weaknesses and infirmities; and his answer is, yes; except yellow fever eight or nine years ago; but had no physician. He was, again, asked the question if he had ever had any illness, local diseases, injury, infirmity, disease or ailment, or infirmity of any kind whatsoever; and his answer is, no; except as above. Again, he was asked the question, how long since you consulted or were attended by a physician? His answer is, nine years ago. When asked to state the name and address of such physician, his answer was, no physician.

. Again, he was asked if he had ever been an inmate of any infirmary, sanitarium, or hospital, when, for what cause, etc.; and'his answer was, no.

In the face of these statements, we have that of the captain of a. vessel of which he was purser, that he had a fit on board of a vessel ins June, after the issuance of the policy in March; and the statement of a physician, that he had been treated at the Hotel Dieu several years prior'to his application.

The proof shows clearly that he had been an inmate of both the-Charity Hospital and the Hotel Dieu, on several occasions prior to his. application; and that he has been therein treated for a gun-shot wound, and that a bullet had been extracted by a physician attending: at the Hotel Dieu, wherein he was a patient.

The extracts made from the application of the assured are to the effect, that the assured warranted the answers and statements therein, contained, to be full, complete and true; and, that if any of said answers made were not full, complete and true, then the policy issued, thereon shall be null and void.

It further shows, that he agreed and warranted that all the foregoing- answers written to the questions therein contained, are full, complete, correct and true, in every respect.

In our view, argument is unnecessary, upon these facts, to demonstrate the violation of the warranty clause of the contracts of insurance.

The statements of 'the assured in answer to the questions propounded in the application, are absolutely inconsistent and irreconcilable with the parol proof adduced on the trial.

The instant case is quite similar in its facts to that of Weil, Administrator, vs. Insurance Company, 47th Ann., 1405, from which we make the following extract:

“The theory of the defendant’s answer is that the application is the primary evidence, on the faith of which only the policy was issued to the insured, and that the validity and binding force of the policy necessarily depends upon the statements and representations which are made in the application.

“Upon this theory the answer avers that the deceased made, in his application, certain statements and representations, and gave answers to certain questions propounded to him in the course of his medical examination, which is made part of the application, concerning facts ‘then unknown to the defendant, but necessary and material to the defendant’s rish/ and it further represents that ‘said statements were false and untrue,’ and that the truthfulness of same was ‘necessary and material to the defendant’s risk.’

“Reiterated, the representations and statements alleged to be untruthful are, that he answered that he had never had any ‘severe headaches, vertigo, fits, or any nervous or neuralgic trouble,’ whereas he had an attack of trigemical neuralgia in May, 1893, for which he had been treated by a physician for the space of a week; an attack of vertigo or convulsions in October, 1893, for which he was similarly treated for a period of several days; and an attack of la grippe in November, 1893, for which he was similarly treated for a period of two weeks.

“That these different attacks of illness, were by the deceased concealed from the medical examiner, and consequently not made known to the defendant at the time it issued the policy.

“And, the further defense is predicated upon the fact, that when interrogated as to the name and residence of his physician, the deceased only gave the name of R. D. Randolph; whereas in truth and in fact, he was attended by Dr. Smith Gordon, as well as by Dr. Ram dolph, during his attack in May, 1893; and was'also examined and prescribed for by Dr. Rudolph Matas, of New Orleans, in May, 1893, at the suggestion of Dr. Randolph, of Alexandria. And in truth and fact, he was attended by Dr. Gordon in September and October, 1893,

“It was not a point made in the answer that the death of the deceased resulted from an excepted cause in the risk of the defendant; but this testimony is pertinent to show the materiality of the information which was necessary that the defendant should have known in determining whether it would issue a policy, and in enabling the’ court to estimate the probable effect of the failure of the deceased to make known these facts to the defendant through the instrumentality of his medical examination.”

In our view, the points made in this case are quite similar, and are sustained by proof even stronger than the evidence in that case.

Upon a careful examination of the facts, and a large number of authorities bearing upon question involved therein, our conclusions were stated to be as follows:

“Applying the principles of law herein above related to the application of the insured, and to the policy of the insured issued by the company, there is in our minds no possible doubt that there was a breach of the warranty by the insured, on the faith of which the insurer undertook the risk.”

We are of opinion that the judge a quo decided the case correctly.

Judgment affirmed.


source: Caselaw Access Project

author: Ntoholls, C. J.

license: Public Domain

text:
    No. 13,387.
    Vicksburg, Shreveport and Pacific Railroad Company vs. Lem Scott, Sheriff, et al. Intervention of New Orleans & North Western Railroad Company.
    Syllabus.
    Conceding that prior to the passage of Act No. 106 of 1892, a property taxpayer had the right to contest judicially the legality of a tax levied upon his property under a tax, voted in aid of a railroad corporation at a special election ordered by a police jury under Article 242 of the Constitution of 1879, and Act No. 35 of 1886, upon the ground that the police jury was without jurisdiction to order the election for the reason that the petition presented to it asking for such election had not been signed by the number of property taxpayers required by the Act of 1886; that contest would be barred by estoppel and acquiescence if the right or exercise of the right were unreasonably delayed and action taken only after the railroad had been constructed and the corporation had expended large amounts of money upon the faith of the official promulgation of the result of the election. lie would not be permitted individually to reap benefits and repudiate obligations.
    The provisions of Act 106 of 1892, authorizing judicial contests of special elections held under Article 242 of the Constitution of 1879, apply only to cases where the contest could be instituted within the limit of time prescribed by that act for the bringing of such a contest after the promulgation of the result of the election.
    The fact that a special tax in aid of a railroad should have been voted by the property taxpayers of a parish furnishes no ground of complaint against another special tax being voted for, where the corporation in whose favor the first tax was voted has released and relinquished all claim to the same - and the tax has lapsed by failure of performance of the conditions upon which the tax was to be exigible.
    where a tax in favor of a railroad has been voted by the property tax owners of a parish at a special election, and there being doubts as to the legality of the proceedings, the question of the imposition of the tax is submitted to the taxpayers at a second election under reservation to the railroad of any rights which it might have acquired under the first election, should the second be adverse to it: a taxpayer can not complain, when the tax is again voted at the second election, that a double tax of five mills has been imposed upon his property. Though a tax of five mills was twice voted for, but one tax of five mills was to be enforced — one payment or satisfaction would exhaust the tax. *
    A special tax voted in favor of a railroad corporation in aid of the construction by it of a certain road inures to the benefit of a corporation resulting from the consolidation of that corporation with another.
    The object of the tax being the construction of the road, the consolidation of the two corporations carried with it no significance as to the legality and enforcibility of that tax.
    APPEAL from tlic Sixth Judicial District, Parish of Richland— Ellis, J.

      Stubbs £ Bussell for Plaintiff, Appellant.

      Lazarus £ Luce for Intervenor, Appellee.
   The opinion of the court was delivered by

Ntoholls, C. J.

The petition in the present action was filed in the District Court of Richland on the 24th of July, 1891, and service ac^ eepted and citation waived upon the same day.

In the petition, plaintiff alleged that it was the owner of a large number of tracts of land in the parish of Richland which it set out and described; that the sheriff of the parish of Richland as tax-collector, on the 22nd of December last (illegally) demanded of petitioner, as State, parish, levee and special railroad tax, on a total valuation of said property, the sum of two thousand five hundred and four and 24-100 dollars, being, as claimed by said sheriff and tax-collector, six hundred and forty-five 17-100 dollars for State tax, nine hundred and fourteen 83-100 dollars for parish tax, four hundred and five 50-100 dollars for levee tax, and five hundred and.thirty-eight 14-100 dollars for special tax for benefit of the New Orleans and North Western Railroad Company; that said Lem Scott, sheriff and tax-collector, had advertised the aforesaid property of petitioner for sale at tax-collector’s sale, to take place on Saturday, the 25th of July, instant, unless two thousand eight hundred and seventy-eight 33-100 dollars, be paid him for taxes, interest and costs claimed thereon, and petitioner feared that the said sheriff would proceed to attempt to sell its said property, unless stopped by an injunction; that such proceeding would work petitioner an irreparable wrong — said taxes not being legally demandable, or owing by it, — and an injunction was absolutely necessary for the protection of its interest, and against the illegal acts of said sheriff and tax-collector; that of the taxes claimed illegally by said sheriff and tax-collector was the sum of five hundred and thirty-eight and'14-100 dollars on account of a special tax levied by the police jury of Richland parish for 1890 of five mills, for the benefit of, and to be paid as a donation or bonus to the New Orleans and North Western Railroad Company, which was made pursuant to a pretended election therefor, in January, 1890; that said tax and all the acts,of the police jury; and all other persons leading up to the same, were illegal, null and void, and in .violation of both the constitution of the United States and of the State of Louisiana:

1. That the tax was intended to force a contribution from the taxpayers to enable the parish to bestow as a gratuity, a donation upon a private corporation, and utterly without compensation to the taxpayer :

2. That the authorities of Richland parish had already exceeded their doubtful power which was limited in number to one grant, and to five mills, and they were utterly without authority further to extend their bounty to railroads or other enterprises; That said Police Jury, on the petition of the New Orleans, Natchez and Fort Scott Railroad Company, and at great expense, to-wit: in November, 1886, had already caused an election for a similar bounty to that railroad company, to be held, and that it was claimed by said railroad, that the tax-payers had authorized said tax, and petitioner, without admitting* the validity of this claim or tax, averred that the authorities of Rich-land parish had exhausted their authority under the constitution; that if this tax was lost, which is charged, it was by the bad faith of the. beneficiary in failing* to comply with the reasonable condition; that notwithstanding this, said police jury, at the demand of another railroad company, viz: the Louisiana and Arkansas Railroad, caused an election to be held in August, 1887, in said parish, to provide a similar donation of five mills for ten years in their favor, which was also declared adopted, though in excess of the authority under the constitution, thus subjecting the tax-payers, if liable at all, to special tax for ten years, and for ten mills on all property in the parish; that said ordinances were unrepealed, and notwithstanding the Police Jury had thus exhausted its authority, proceedings were taken by it to fasten a tax of five mills more in favor of the New Orleans and North Western Railroad Company; that notwithstanding the waiver by the latter company of the first tax, in ease this last demand was granted, they yet claimed it was valid and tbe said Police Jury was without authority to submit their proposition to the tax-payers, or to take any steps to encourage its adoption, their authority having'been exhausted, as had been before set forth:

3. That the election held for the tax being enforced, was not held under the general election laws of the State, bp± was conducted and held under the direction of the feed agents of the said New Orleans and North Western Railroad Company:

4. That, notwithstanding the reports and returns, neither a majority in numbers, nor in value, of the property tax-payers in Richland parish, voted in favor of the tax at said election:

5. That more than one hundred persons who were residents, and who were not possessed of the legal qualifications to vote, were induced and persuaded to vote at said election for said tax, without whose votes it was not carried, either by numbers or amount, and, therefore, it was fraudulent and void:

6. That more than one hundred persons, resident in said parish and taxed to the value of fifty thousand dollars, did not vote in person, but that other persons, with or without their consent, did vote their names and property for said tax, which was a clear violation of law, and without which said tax was lost both in number and amount:

7. That more than one hundred tax-payers and more (taxed over one hundred thousand dollars) not having the constitutional qualifications, nor the right to vote, either voted in person, or their names and property in many instances, without their authority, were voted or declared voted by others, in favor of said tax, without which neither in number nor amount, was said election carried, and said proceeding was a fraud on the rights of the tax-payers:

8. That a large number of minors and married women,- as petitioner was informed, to the number of fifty, who owned taxable property to the value of fifty thousand dollars, were permitted to vote, ox their names and property were voted for them and counted in favor of the tax, which was clearly illegal, and without which said election was lost, both in numbers and amount:

9. That a large number of persons who were acting in a fiduciary capacity were induced to vote, or their names and their property were voted by others for the tax, without which the tax was defeated, both in numbers and amount; that the declaration and proclamation that said tax was carried was based upon improper and incorrect and illegal returns and was a gross error, and that the authorities were grossly imposed upon by those interested in carrying said election; that the ordinance bearing said tax was, therefore, based upon error and fraud, and was of no binding effect and the tax levied thereunder as aforesaid, illegal, fraudulent and unconstitutional and void, and imposing on the tax-payers of the parish an onerous burden for many years, and the courts should protect the tax-payers from the fraud.

In view of the premises, petitioner prayed that the court grant an order of injnuction, restraining Lem Scott, sheriff, and ex-officio tax collector in the parish of Richland, from further proceedings in the enforcement of the collection of taxes as set forth; and that Robert A. Wynn, as president of the Police Jury, representing the parish of Richland, and the said Lem Scott, sheriff, be duly cited to answer hereto, and, upon a hearing, that the tax levied by the Police Jury of Richland parish of the-day of-, 1890, requiring the payment of five mills for the New Orleans and Northwestern Railroad for ten years, be declared unconstitutional, illegal, null and void, as well as all the proceedings of said Police Jury, tending to said levy and the election therefor; and that said sheriff be perpetually enjoined from all acts and efforts to enforce the collection of same against petitioner.

An order of injunction was granted as prayed for.

Defendants excepted:

1st. That plaintiff could not sue to annul the special tax voted in favor of the New .Orleans and North Western Railway Company, without making said railway company a party thereto, nor contest' said special tax in this collateral proceeding. In the event said above exception was overruled, then and in that event, the defendants excepted :

1st. That plaintiff’s petition sets forth no right or cause of action;

2nd. That the issue presented by plaintiff’s petition was not one of judicial cognizance, and the court was without jurisdiction, raiione maberiae, to entertain or try said contest, there being no statute authorizing the court to entertain and determine a contest of the special election at which said special tax was voted:

3rd. In case it should bo held that the court had jurisdiction to entertain and determine' such a contest, the said action contesting said election was not filed within the time prescribed by law in which elections could be contested, and, at all events, too late, the said railroad having been constructed on its present line and the railroad company and parties interested therein having made large expenditures of money on the faith of said tax having been voted and carried;

4th. The parties having participated in said election by voting at same were now estopped from contesting its validity, and were further estopped and precluded from contesting and denying the authority of the Police Jury to order and have said special election held, and from denying the regularity, legality and validity of said submission.

On the same day the New Orleans and North Western Railway Company, appearing through and represented by O. H. Hammett and W. D. Jenkins, receivers of the same, by a decree of the United States Circuit Court for the Western District of Louisiana, filed an intervention in the cause.

The defendants, after pleading the general issue, answered, admitting the special election in 1890, and the voting of a special tax of five mills for ten years in favor of the railroad company. They averred that said special tax was declared and returned carried by the proper election officers, and was so promulgated and levied for 1890, excepting a few delinquents. They averred that the Police Jury had full legal authority to order said special election and to submit the ordinance to a vote of the property tax-payers of Richland parish; that at the time of said special election and submission the Louisiana and Arkansas Railway Company, had relinquished all claims to the special tax voted in its aid, and that the conditions on which it was voted were never complied with and the tax had lapsed; that the New Orleans, Natchez and Port Scott Railway Company was consolidated with the New Orleans and North Western Railway Company, of Mississippi, and that, by special consolidation, which was in December, 1889, all the rights, credits, subsidies and properties of the New Orleans, Natchez and Fort Scott Railway Company, were, transferred and became the property of the consolidated company, the New Orleans and North Western Railway Company; that under the conditions of the ordinance should the election held in January, 1890, be held illegal or invalid, and that, thereunder, the special tax voted thereat could not be legally levied and collected, then the levy and collection of said special tax was legal and valid under the ordinance adopted in November, 1886, in aid of the New Orleans, Natchez and Fort Scott Railway Company. They urged again the estoppel which they had set up in the exceptions, and averred and maintained the legality and validity of the ordinance submitting the question, of the levying the special tax to the property tax-payers of Richland parish, the legality and validity of the election and of all the proceedings taken thereafter relative to the tax. They prayed for a dissolution of the injunction with damages and the dismissal of plaintiff’s suit. In the petition of the intervening company it was declared to be a corporation organized and existing under the laws of the States of Louisiana and Mississippi. In the petition of intervention it was alleged that the intervening company had an interest in the suit and a right to ’intervene therein as owner of the special tax voted in its aid and assailed by the plaintiff.

The intervenor pleaded that the court was without jurisdiction to entertain and determine a contest of the special election, there being no warrant in law or statutory authority for the same; that if it had jurisdiction the contest was filed too late, having been filed long after the ordinance had been promulgated as carried, after a large expenditure of money in constructing the road and after the construction thereof in compliance with the ordinance and on the faith of said vote, promulgation and levy; that plaintiff was estopped from contesting- the authority of the Police Jury to order the election by having participated in and voted at said election and for the same reason was estopped from urging the other grounds set up; that the plaintiff company was aware prior to the election that non-residents, married women, minors and persons acting in a fiduciary capacity would vote thereat, but raised no objection thereto, and, as stated, had itself voted at the same. Intervenor excepted that plaintiff had no cause or rig-ht of action. It adopted, generally, the defendant’s defense in favor of the legality of the election and of the tax.

Intervenor averred that the special tax -voted for, was legal and constitutional, even if at the time it was so voted a special tax of five mills for ten years had already been voted by the property tax-payers of Richland parish in aid of the Louisiana and Arkansas Railroad or other railroad corporations. It averred that the New Orleans, Natchez and Fort Scott Railroad Company, was a railway corporation organized under the laws of Louisiana and was consolidated with the New Orleans and North Western Railway Company, organized under the laws of the State of Mississippi and under the laws of the State of Louisiana and Mississippi — the consolidated company taking the name of the New Orleans and North Western Railway Company; that the consolidation was effected in December, 1889, and by the act of consolidation, the consolidated company became the owner and possessor of the assets, rights, credits, properties and subsidies of the New Orleans, Natchez and Fort Scott Railway Company, including the grant and subsidy of the special five mill tax voted for in favor of that company, in November, 1886; that the right was reserved to in-tervenor under said ordinance, to claim and demand the special tax voted in favor of the said railroad company, in the event the ordinance submitted to be voted upon, in January, 1890, was not carried, or was held not to be carried; that intervenor availed itself of such a stipulation and it contingently claimed the benefit of the tax voted for in 1886.

Intervenor averred that at the time of the submitting to a vote in January, 1890, of the question of the levying of the tax involved in the pending litigation, the Louisiana and Arkansas Railway Company had released and relinquished all claim to the special tax voted in its aid; that said tax was not earned and had long since lapsed.

It averred that the special tax of 1890 was voted for, was promulgated as carried, was levied, and with the exception of a few delinquents had been collected for 1890.

It averred that on the faith of said vote and levy and on the silence and acquiescence of plaintiff and others in the result, said road was constructed in compliance with the conditions of the ordinance, entailing a large outlay of money which had benefited plaintiff and other tax-payers. Plaintiff standing by and remaining silent until said corporation constructed the railroad and expended large sums of money on the faith of said special election, was estopped from contesting the same. It maintained the legality and validity of the ordinance and all proceedings taken thereunder, and of the tax and proceedings taken in aid thereof.

A statement of facts and note of evidence appear in the record signed by the attorneys of the different parties from which the following extract is made:

STATEMENT OF FACTS AND NOTE OF EVIDENCE.

■* * * * * *

3. It is further agreed that the relinquishment signed by Hallow M. IToyt, as president of the Louisiana & Arkansas Railroad Company, and on file in the record of the Police Jury, be filed and introduced in evidence.

4. It is agreed and admitted that the Louisiana & Arkansas Railroad Company has not complied with the provisions of the ordinance submitted and voted on by the people for a special tax in its favor; that said road has not been built or completed, and that said tax has not been earned under the provisions of the ordinance, and, that the right to said tax has lapsed and the same has been forfeited by the said railroad company.

o. That the New Orleans, Natchez and Fort Scott Railroad Company, was created and organized in August, 1886; that the special tax as declared in petition of plaintiff was declared, as voted in its favor by the authorities of Richland parish; that subsequently, to-wit, on December 26th and 27th, 1889, the New Orleans, Natchez and Fort Scott Railroad Company, a railway organization, a corporation of Louisiana, and the New Orleans and North Western Railway Company, a corporation of Mississippi, were duly incorporated under and in pursuance of the laws of the States of Louisiana and Mississippi, as per Act of constitution filed herewith, and made a part hereof.

6. It is further agreed and admitted that the New Orleans and North Western Railway Company,- as thus consolidated, was placed in the hands of Charles II. Hammett and W. G. Jenkins, as receivers, on August 29th, 1891, by the order of the United States Circuit Court for the Fifth Circuit and Southern District of Mississippi, and Western District of Louisiana, Honorable Don A. Pardee, Judge, the said order placing the receivers in possession of all the property, effects or rights of said company, including any and all franchises, rights, immunities, donations, subsidies, etc.; that said receivers qualified and took possession of all of said property, and that they and their successors have since proceeded with the collection of said subsidies and taxes now in contest, as well as all others; that on October 23rd, 1892, the said Charles H. Hammett and W. G. Jenkins resigned as receivers of the said railway company, and Louis K. Hyde was appointed solo receiver of said company, and all its rights, property, franchises, subsidies, etc., and has since been enforcing the collection of said tax or subsidy in contest as well as all others, and has been in the possession and operation of said railway company, and all its property.

1. It is further agreed and admitted that at the election on January 14th, 1890, for a special tax of five mills for the period of ten years under the ordinance as introduced, the Vicksburg, Shreveport and Pacific Railroad Company voted against said tax.

8. It is further agreed and admitted that the line of the New Orleans and North Western Railway Company was projected and located through the parish of Richland, down to Rayville and on the line indicated by said ordinance, by reason of the inducement held out by the voting- and promulgation of said taxes having’ been carried by the property tax-payers of Richland parish, and that said railroad company, its projectors, stock holders and incorporators expended previously to the filing of the injunction herein a sum exceeding one million of dollars in the construction and equipment .of said railroad on said line.

9. That the said railroad company was completed and in operation before January 1st, 1891, and the conditions of said ordinance voted for at said election were complied with by said company.

The district court rendered judgment against the plaintiff in favor of the defendants, ordering, adjudging and decreeing that the injunction sued out in the action be dissolved, at costs of plaintiffs, with right reserved to defendants and intervenors to sue for such damages as might have been caused thereby, and ordering the officers to proceed to the collection of the taxes enjoined in such manner as the law directs.

Plaintiff appealed.

OPINION.

It is stated in plaintiff’s brief that the only issue for decision now before the court is the legality of the tax of five mills in favor of the New Orleans and North Western Railroad Company, for ten years, all other matters having been disposed of and settled.

It will be noticed that the present action was instituted long after the result of the election at which the question of the imposition of the tax referred to had been submitted to the property tax-payers of Richland had been promulgated, and by the official announcement the tax had been declared to have been carried.

It was only after the tax had been levied and its .property had been advertised for sale in enforcement of the portion of the tax assessed to it that plaintiff called in question either the ordinance by which the matter of the tax was referred to the people, or the subsequent proceedings. When it did take action it was in its own special interest, as the relief prayed for was an injunction against the sale of its property and the enforcement of the tax against it, and in aid of that relief that a judgment be rendered, decreeing the said tax levied by the Police Jury unconstitutional, illegal, null and void, as well as all the proceedings of the police jury tending to said levy and the election thereof.

The action from the manner and form in which it was brought, the purposes for which, and the time at which it was instituted, and the parties against whom, it was directed, constituted it a collateral attack upon the action of the parish authorities and the proceedings connected therewith in the matter of the tax. The parish authorities had, at the time, performed all of the duties connected with the subject matter other than that of receiving and distributing the tax. The plaintiff contends that the issues which its pleadings raise and the objections which it urges are much broader than those involved in State vs. Judge, 13th Ann., 89; State ex rel. Woodruff vs. Police Jury of Bossier, 41st Ann., 849; Davis vs. Police Jury, 43rd Ann., 1012; Construction Company vs. Police Jury, 44th Ann., 865; Tax-Payers vs. Tax Collector, 49th Ann., 1041, in which the defendants urged that this court had declared that in the absence of statutory authorization the courts of Louisiana were without jurisdiction, ratione materiae, to investigate and declare what were legal and illegal votes, to canvass the votes and declare the result in matters connected with contested elections, and could only extend where statutory authorization had been, in fact, given to the cases provided for by the statutes. Plaintiff maintains that it not only contests the validity and result of the election ordered by the Police Jury of Richland, but also the jurisdiction and power of that body to have submitted, at all, the question of the tax to the people, for the reason that the parish authorities were only authorized to act. when a petition had been presented to them such as the law provided for, and that no such petition was presented in this particular matter to the Police Jury of Richland.

It further maintains that even if the court was without jurisdiction in those matters when the cause was first filed, its jurisdiction had been widened by Act Ho. 106 of 1892, and it had authority to deal with the whole subject matter when the case went to trial. While by Article 209 of the Constitution of 1879, a limitation was placed upon the rate o.f State, parish and municipal taxation, the power was given by Article 242 of the same instrument to the General Assembly to enact general laws, authorizing the parochial or municipal authorities of the State, under certain circumstánces, by a vote of the majority of the property tax-payers in number and in value, to levy special taxes in aid of public improvements, or railway enterprises, provided that such tax shall not exceed the rate of five mills per annum, not to extend for a longer period than ten years.

In order to make operative the right or power of quasi voluntary taxation here recognized or granted, it was necessary that the particular circumstances under which it should be permitted to find expression should be declared b5r the legislature, and the mode or method by which the will of the people should be tested and ascertained and announced, be fixed. Act No. 35 of 1886 was enacted for that purpose. It is true that the initial step provided for by the General Assembly to be taken, looking' to the submission to the people of a parish of the question whether a particular special railroad tax should be imposed or not was the presentation to the parochial authorities, of a petition of a certain number of property-owners, and, therefore, in one sense, it might be said that upon the existence of that very fact depended the jurisdiction of that body. The legislature, however, while thus declaring the circumstances under which the power was to be called into action gave none the less the parochial authorities the power and authority to deal with the subject matter of the petition so presented. It could not, of course, originate of itself, and independently of request from the property holders a special election for the purpose stated, but when a petition came before it, requesting action, it was necessarily vested with the power and authority for the purpose of guiding its own course to determine whether it was of the required character.

The power to judge given to a particular body or tribunal, carries with it the power to judge wrongly as well as rightly (State ex rel. Babin vs. Judge, 49th Ann., 1730), and an erroneous judgment or conclusion would, bjr no means, necessarily carry with it the absolute nullity of action taken upon such erroneous judgment. When a superior body or tribunal had been provided for, vested with the authority to supervise or review such action by appeal, or otherwise, this action might be set aside or annulled. Where no such superior authority had been provided for and the body or tribunal had been left .to be itself the final tribunal, it has been held in several jurisdictions, in reference to this very matter, if we are not mistaken, that courts will take the conclusion-reached to have, been correctly reached, at least, as against a collateral attack. We have illustrations of this same principle in the case of courts of limited jurisdiction, where the jurisdiction is dependent upon the values of the property or matters in dispute before them, and they have x^assed, as matters of fact, upon the question of such values. As matters stand now and since the passage of Act No. 106 of 1802, the legislature has provided for contests upon this subject and fixed the terms and conditions of the same, and one of the requirements of the contest is the fact that it should have been instituted within a given fixed time.

Any railroad corporation, therefore, in whose favor a special tax has been declared to have been voted is now advised of the danger of acting upon the strength and faith of such announcement and should it proceed to the expenditure of money and the construction of its road before the period when such contest can be raised, it does so prematurely and at its own peril.

Matters were different before the passage of the Act of 1892. There was no x>eriod fixed to guide the corporation as to its safety or its risk.

Conceding that property-owners had, prior to the Act of 1892, the pjower to test the question whether the petition presented to the Police Jury was insufficient or not, it was clearly the duty of parties possessing such right to do so in a timely manner — in a reasonable time.

They could not, with any justice, stand in the background until the corporation should, on the strength and faith of the announced vote, have completed its work by the expenditure of its money and then raising objections, realize benefit and repudiate obligations. Particularly is this the case where the contest is raised, not as a property owner for the benefit of the mass of the property owners, but for the special benefit of the party making the contest. A person or corporation should not be permitted to reap advantages for which his neighbors, and not himself, are called to contribute. In the case at bar the plaintiff not only did not raise objections in reasonable time, but it participated and voted at the election which the Police Jury had ordered, and in so doing, recognized apparently, at least, the correctness and regularity, up to that point, of the proceedings taken. It is true that it voted adversely to the tax, and that that fact might relieve it from estoppel “as against the contesting of the result of the election”, but it would not relieve the course pyursued by .it from evidencing its recognition apparently of the legal exercise by the Police Jury of its authority in ordering the -election itself. Tardy action coupled with acquiescence on. the part of plaintiff has, in our opinion, worked an estoppel as against its raising that particular issue.

The contention of the plaintiff might be conceded that it was within the constitutional power of the General Assembly by the Act of 1892, to have extended the jurisdiction of courts and to have widened the right of property owners as to contests touching special elections in aid of railroad enterprises and to have made its provision apply retroactively to the issues already raised in suits pending before the passage of the Act without affecting the present litigation, for the question here is not one of power but of intention.

The provisions of that Act have to be all considered, and it is very evident from tlie particular provision as to the time when contests shall be brought, considered relatively to the promulgation of the returns of election, that it was the intention of the legislature to withdraw from the operation of the act any contest where that provision could uot apply.

The claim of the plaintiff that the tax enjoined can not be legally enforced for the reason that the property owners of Richland parish had already voted a special tax of five mills per annum for ten years in favor of the Louisiana and Arkansas Railroad, loses its force under the admissions in the record, that the benefit of that tax had been released and relinquished by that corporation, and it had lapsed by failure of performance of the conditions upon which it was to be ex-igible. (See on this subject, Reynolds & Henry Construction Company vs. Police Jury, 44th Ann., 863.)

The claim that a double enforceable tax of five mills for ten years has been voted in favor of the New Orleans, Natchez and Fort Scott Railroad Company, or the New Orleans & North Western Railroad Company, is without foundation. Only one tax has been, in reality voted, though two elections were held upon the same subject.

The object of the second election was to make certain that one tax of five mills in favor of the corporation should be imposed and to remove all doubts upon the legality of the imposition of the tax. It seems that doubts had been expressed as to the binding force of the original vote, and it was to cure the defects, if any, of that vote, or to replace the first proceedings by those secondly taken (if necessary) that the last election was ordered and took place.

It might he said that a tax of five mills in favor of the corporation was twice acted upon favorably, but, none-the-less, one satisfaction or enforcement would exhaust the tax voted for. It frequently happens that there are two judgments for the same debt where the satisfaction of one carries with it the extinguishment of the other.

The real situation .was simply that the second election- was held under reservation by the corporation of any rights which it might have acquired under the first election should the second result be adverse to it. What the effect of this reservation would have been had the second election resulted in fact adversely to the corporation, we need not discuss.

AVo think that the tax voted for enured to the benefit of the intervening company by the consolidation of the New Orleans, Natchez and Fort Scott Railroad Company with the New Orleans and North Western Railroad Company.

The object sought to be attained through the tax was the construction of the road- — the fact that the Now Orleans,'Natchez and Fort Scott Railroad was merged by consolidation with the other company carried with it no significance as to the legality and enforcibility of the tax.

We are of the opinion that the judgment appealed from is correct and it is hereby affirmed.


author: MoNroe, J.

text:
    No. 13,275.
    Town of Crowley vs. James L. West.
    Syllabus.
    1. A municipality which has voluntarily passed under the dominion of Act No. 13 G of 1898, can not, under any general or implied authority, suppress or “locate,” at pleasure, a lawful business, which is not a nuisance per ae, where the act confers authority, in specific terms, merely to prescribe regulations whereby the establishment in which such business is conducted shall be kept clean and in good order.
    2. A fortiori is it incompetent for such municipality to enforce an ordinance, whether adopted before or after its acceptance of the act of 1898, the effect of which is to permit four livery stables to be maintained in its business centre, whilst the fifth stable and all others which may be hereafter established, are to be regulated and confined to a designated locality, remote from such centre.
    PPEAL from Mayor’s Court, Town of Crowley. Barry, J.

      Philip J. Ghappuis and Saunders & Gurley for Plaintiff, Appellee.

      Hampden Story and Philip S. Pugh for Defendant, Appellant.
   Tlie opinion of the court was delivered by

MoNroe, J.

Defendant was fined fox violating ato. ordinance’of the town of Crowley which prohibited the establishment of livery stables, except within certain limits; and he has appealed to this court, on the ground that said ordinance is in contravention of- statutory and constitutional law.

The ordinance in question was adopted in 1898, and, whilst it declares, “Section 1 * * * That hereafter, it shall be unlawful to establish, maintain, locate, or operate a livery, feed, sale, and boarding stable within any portion of the corporation limits of the town of Crowley, except as hereinafter prescribed,” and* then proceeds to establish the limits, remote from the business centre of the town, in which such stables may be conducted, and to provide penalties for violation of the ordinance, the concluding section reads as follows, to-wit:

“Section 3. That the provisions of this ordinance should not be “ applied to livery, sale, boarding, and feed stables, already in existence and under operation. Provided; that the effects of the ordin- “ anee shall not be governed by this section, which is hereby declared “ to be a distinct and independent part of the ordinance.”

The admissions and the evidence show that, when the case was tried, there were five livery stables within the prohibited section of the town; one of them being conducted by the firm of which the defendant is a member, and another being a stable which had been sold before the adoption of the ordinance, by defendant's present partner, to the person who is now conducting it. After this sale was made, and before the adoption of said ordinance, C. R. West, defendant’s partner, purchased a lot, for which he paid one thousand dollars ($1000), also within the prohibited district, and ordered lumber and material for the erection thereon of a new stable, which, as we understand, has been since built at a cost of $1300; and said firm have, in the meanwhile, and after the adoption of said ordinance, carried on business in the stable, for the maintenance of which the arrest was made.

The ordinance, as it stands, will affect no other existing stable than that conducted by the defendant’s firm, and said firm, if the ordinance is enforced, will be compelled to move within the limits designated, with the result that it will be unable to compete with the other stables, which are in the business portion of the town.

The points relied on by defendant, are:

That the corporate powers of the town of Crowley are derived from Act 130 of 1898, and that said act confers no authority for the adoption of the ordinance in question.

That said ordinance is invalid, because it was not “entered in a well bound book,” as required by said act.

That said ordinance is unconstitutional and illegal, for the further reason that it is “discriminatory, unreasonable, arbitrary, and unequal in its operation and effect,” and would “operate a hardship on defend- “ ant, by compelling him to remove his stable from a limit, where “ livery stables are now prohibited, to a locality designated and set “ aside for that purpose, remote and distant from the central portion “ of business, while others, his competitors, are permitted to carry on “ a similar and like occrqpation, unmolested, and free from municipal “ interference and objection.”

That said ordinance abridges defendant’s liberty with respect to the selection of a means of a livelihood, and denies him the enjoyment of his rights and privileges, and of his property, as guaranteed by the Constitution of the United States.

The town of Crowley was originally incorporated in 1894, agreeably to the provisions of Act No. 49 of 1882. The Act of 1882, however, purports merely to regulate the “manner” of incorporation, and contains no specific grants of power.

Whatever authority was- exercised by the corporation thus established must, therefore, have been implied from the fact of its authorized existence as a municipal corporation. In 1899, said corporation, by the vote of its electors, and the prpclamation of the Governor, as required by the act,, accepted the offer made by the State, by means of Act No. 136 of 1898, and became a “town” under said act.

The Act of 1898 is of much broader scope than that of 1882, since the latter provided only for the “manner” of effecting incorporation, whilst the former provides not only for the creation of corporations where none previously existed, and for the conversion of corporations, already established under previously adopted statutes, into corporations acknowledging- it, said act, as the authority within which, alone, they exist; hut it also specifies, in terms of great exactness, the powers which are to he exercised by the corporations so created, or converted, and it concludes with a clause which repeals all laws contrary to it or “on the same subject matter,” except as otherwise provided in the act itself.

The acceptance of this act by the town of Crowley, as the Jordan through which it was born again, if it does not cut off inquiry into any previous existence, at least reduces that inquiry within very definite bounds. It may be conceded that existing ordinances, adopted during such previous existence, were not necessarily annulled by the regeneration of the town thus effected. But it must also be conceded that no such ordinance can be enforced, if found to conflict with the law within which the town now lives and moves and has its being, since the creature, in matters of this kind, is not more powerful than the creator.

The charter of 1894 assumed for the town the power, among other things, to regulate the “location,” as well as the inspection and cleaning of “stables, cattle yards, slaughter houses, soap, glue, tallow, and leather factories, depositories for hides, and all such places of business, likely to be, or to become, detrimental to health,” etc.; and it was under this charter that the ordinance in question which undertakes “to regulate the location of stables” was adopted. But, since the acceptance of the Act of 1898, there is no room for the assumption or exercise of any power not expressly or impliedly conferred by the act.

It is not pretended that the Act of 1898, in express terms, confers upon corporations established under it any authority to regulate the location of stables. The remaining question then is, can such authority be implied?

The act provides, in substance:

Section 13. That each city, town, or village, which is incorporated, “ shall be governed by the provisions of this act and shall be a muni- “ cipal corporation, with power;

First — To sue and be sued, etc.;

Second — To purchase and hold real estate, etc.;

Third — To make all contracts, etc.;

Fourth — To exercise such other or further powers as are herein conferred.

Section 14. That the powers herein granted shall be exercised by the Mayor and Board of Aldermen, etc.

Section 15. That the Mayor and Board of Aldermen shall have power to enact ordinances for the purposes hereinafter named, and such as are not repugnant to the laws of the State, and they shall have power,

“First — To levy and collect taxes for general purposes, etc.;

“Second — To levy and collect taxes to pay interest, etc.;

“Third — To make regulations to secure the general health of the “municipality; to prevent, to remove, and to abate, nuisances; to “ regulate, or prohibit the construction of privy-vaults and cess pools “and to regulate or suppress those already constructed; to compel “ and regulate the connection of all property with sewers and drains; “ to suppress hog-pens, slaughter houses and stock yards and to locate “ the same with the concurrent approval of the Board of Health, or to “ regulate the same and to prescribe and enforce regulations for “ cleaning and keeping the same in order, and the cleaning and keep- “ ing in order of warehouses, stables, alleys, yards, private ways, out- “ houses, and other places, where offensive matter is kept or allowed “ to accumulate; and to compel and regulate the removal of garbage “ and filth, beyond the corporate limits.”

And there are twenty-nine more paragraphs in section 15, each conferring separate and specific powers on cities and towns aiid villages falling under the dominion of the act. In section 16, there* are eleven distinct paragraphs, conferring specific powers on cities and towns, but not on villages; and in section 17, there are five paragraphs, which confer still further specific authority on cities and towns having more than two thousand inhabitants. But, nowhere else in the act are stables mentioned, save in the paragraph above quoted, where the corporations affected by said act are authorized to prescribe and enforce regulations for cleaning them and keeping them in order, in common with warehouses, alleys, private ways, out-houses, etc., whilst, in the same connection, and' as part of the same sentence, the power is conferred to “suppress hog-pens, slaughter houses and stock yards, or to locate the same.”

It will be observed, however, that the power to “suppress” and to “locate,” thus conferred, is granted with the qualification, that it is to be exercised “with the concurrent approval of tho Board of Health.” The question, then, very naturally suggests itself; if the Legislature bad intended that the municipal corporations affected by the Act of 1898,'should be authorized at pleasure to “suppress” or to “locate,” warehouses and stables, what was ‘ to prevent the use of language granting that authority; and why was language used which authorizes other action, and falls short of authorizing such suppression or location. And, again, is there any reason to suppose, taking the whole paragraph quoted together, or taking the various provisions which have been referred to together, that the law makers, in specifically authorizing the suppression or location of hog-pens and slaughter houses would require such action to be taken “with the concurrent approval of the Board of Health,” and yet, that they intended that warehouses- and stables should be suppressed, or located upon the outskirts of the town, without the concurrence of the Board of Health, although the authority, as granted, with respect to them, extends only to the prescribing and enforcing of regulations for keeping them clean and in order?

The law applicable to ihe conditions as presented, is, as we think, fu lly stated in the following language:

“ * * * The extent of municipal authority over nuisances “ depends, of course, upon the powers conferred in this regard upon “the municipality. They may be general or specific or both. The “ authority to preserve the health and safety of the inhabitants and “ their property, as well as the authority to prevent and abate nuis- “ anees, is a sufficient foundation for ordinances to suppress and prohibit whatever is intrinsically and inevitably a nuisance. The “ authority to declare what is a nuisance is somewhat broader, but “ neither this nor the general authority mentioned in this last preced- “ ing sentence, will justify the declaring of acts, avocations, or strue- “ tures, not injurious to health or property, to be nuisances. * * * “It is not unusual to invest the municipal council with special “ authority with respec-t to particular avocations, trades, acts, omis- “ sions, and structures, with a view to conserve the public health and “ safety.

“The terms in which such authority is conferred measure its scope, “ but, in view of the end for which it is given, it is not subjected to a “hostile, or even to a narrow construction,” Dillon on Mun. Gorp., “ Vol. 1, par. 879.

“Tt is a doctrine, not to be tolerated in this country, that a muni- “ cipal corporation, without any general laws, either of the city or “ State, within which a given structure can be shown to be a nuisance, “ can, by mere declaration that it is one, subject it to removal by any “ person supposed to be aggrieved, or even by’ the city itself. This would place every house, every business, and all property in the “ city at the uncontrolled will of the temporary local authorities.”

Yates vs. Milwaukee, 10 Wal., 497.

It has frequently been held that a livery stable is not a nuisance per se. Shiras vs. Olinger, 50 Iowa, 571; Pickard vs. Collins, 23 Barb. (N. Y.), 444; Harrison vs. Brooks, 20 Ga., 537; Burditt vs. Swenson, 17 Texas, 489; Wood on Nuisances, Secs. 528-9. And in the case at bar, the Mayor, before whom it was tried, declined to permit the defendant’s counsel to ask a witness who was upon the stand, “In what manner, and in what condition is the stable in controversy kept?” on the ground that the question before him was, not how the stable was kept, or whether it was a nuisance, but whether or not the town had the right to enforce the ordinance, which prohibited the keeping of the stable where it then was. There is nothing in the record, therefore, to indicate that the defendant’s stable was objectionable in any way whatever, or to anybody, except (1) the preamble to the • ordinance under which he was prosecuted, which reads: “Whereas, the indiscriminate establishment of livery, feed, boarding “ and sale stables, endangers the public health and the public safety, “ prejudices the comfort and well being of the community, depreci- “ ates the value of property, and greatly increases the danger of fire, “therefore;” etc., and, (2) the following statement, embodied in the Mayor’s reasons for judgment, to-wit: “It is even more than an “ ordinary stable, being large, and being used for the penning and “ accommodation of a large number of animals for sale, and which “ make considerable litter, noise, and disturbance by their constant “ tramping upon the floor, thus affecting the health and.comfort of the “ surrounding residents.”

This declaration in the ordinance can not fasten upon a business which is not in itself a nuisance, the pernicious, destructive, and altogether alarming qualities which the language used attributes to it, any more than these qualities can be fastened upon a “warehouse,” or.an “out-house,” by the mere use of language. Nor can we accept the statement, in the opinion of the Mayor, as being conclusive upon the point to which he refers, since we find absolutely no testimony to that effect in the record, not even that of the prosecuting witness, and the Mayor, as has been stated, had ruled out all evidence upon the subject offered in behalf of the defendant.

We have, then, a case in which it appears that a person, engaged in a business which is conceded to be lawful, in which four other persons, or firms, are engaged, in the same town; which, so far as the record discloses, is conducted properly and inoffensively, is nevertheless, by the operation of a municipal ordinance, arrested and fined, because he has failed to establish- his said business in a part of the town remote from the business centre, rather than at the place which he considers most advantageous; and it further appears that the other four persons, or firms, engaged in the same business, are not to be affected by the ordinance, but are to be permitted to conduct their business where they please, and that it naturally pleases them to remain in the central part of the town, from which the defendant is to be permanently excluded. The proposition that the defendant can be thus discriminated against, and that his four competitors in business can be thus secured the monopoly, in perpetuity, of the livery stable business in Crowley, can not be seriously entertained.

State vs. Mahner et als., 43 Ann., 496; State vs. Dulaney, 43 Ann., 500; State vs. Garibaldi, 44 Ann., 814; State vs. Sarrad et als, 46 Ann.; 703; State vs. Kuntz; 47 Ann., 107; Tugmam vs. City of Chicago, 78 Ill., 409; Dillon on Mun. Corp. (4th Ed.) par. 322.

It is said, however, that, by the terms of the ordinance itself, the section by which it was made inapplicable to those keepers of livery stables who were in business before its adoption, is to be regarded as in the nature of an independent enactment, which may be declared null without affecting the other sections, and that the ordinance may he held to apply to all livery stables in Crowley and to require the proprietors of such stables either to close them up, and to go out of business, or else to move them within the territory prescribed by the ordinance.

Pretermitting the consideration of the question whether such a method of dealing with the ordinance would be competent, and conceding, arguendo, that the section in question could be eliminated as suggested, we have, remaining, what may be called the main question, i. e., assuming that the ordinance is to apply to all livery stable keepers in Crowley, and that, under its provisions, they will be compelled to move their establishments from the centre of the town to the district designated therein — is the said ordinance a competent exercise of the authority vested in the corporation ?

We find nothing in the record which would Justify us in answering this question in the affirmative. Ordinances of municipal corporations, purporting to have been adopted in the exercise of 'implied, or general authority, must be “lawful,” “reasonable,” “impartial,” “fair,” “general,” “consistent with public policy,” and “not in contravention of common right.” Dillon cn Mun. Corporations (4th Ed.), pars. 319, 320, 321, 322, 323, 325, 326, 329. It is doubtful whether the ordinauce in question meets any of these requirements. The1 business to be affected is a legitimate business, and there is not a syllable of testimony in the record before, us going to show that it is conducted otherwise than in a proper manner, and inoffensively to others. The declarations of the preamble to the ordinance are met by the admitted fact that four, out of the five stables in Crowley which are said to endanger public health and safety, prejudice the comfort and well being of the community, depreciate the value of property, and increase the danger of fire, were to be left untouched, whilst the penalty for all this capacity for calamity breeding was to be visited on the defendant as the proprietor of the fifth stable, which is not shown.to differ in any respect from the others. Under these circumstances, even if the act of 1898 had not granted the corporate authority, with respect to stables, in specific terms, the general, or implied authority to adopt ordinances in the interest of the general welfare of the community would not authorize such an oppressive discrimination between the defendant and other keepers of livery stables.

But .the specific character of the grant of authority, to prescribe regulations for the “cleaning” and “keeping in order” of stables, warehouses, etc., taken in connection with the authority granted, in the same section, and in equally specific terms, to “suppress” or “locate” hog-pens, slaughter houses, etc., and taken in connection with the general tenor of the act, leaves no room for doubt that it was the intention of the law makers to distinguish between establishments of different kinds, and that it was not intended that any greater authority should be exercised with respect to stables and warehouses than that which is conferred in terms. And this limitation applies equally to ordinances in existence, when the town passed under the dominion of the Act of 1898, and to those subsequently adopted. Shreveport vs. Robinson, 51 Ann., 1314.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed; that the ordinance No. 88, under which defendant was convicted and sentenced, be decreed null, and of no effect, and that the. defendant he discharged from further prosecution .thereunder.


author: Breaux, J.

text:
    No. 13,264.
    The Texas and Pacific Railway Co. vs. The Southern Development Company.
    Syllabus*.
    1. Jury’s Estimate of Value. In estimating the value oE land for the expropriation of a right of way, it is not necessary to take the jury’s estimate as correct.
    2. There is a Bight of Appeal. Though It is left to estimate the value of the land to he expropriated, the verdict is subject to review on appeal.
    3. Case Comes up Anew on Appeal, while the jury’s verdict is entitled to respect, the facts and the law are considered anew by the appellate tribunal.
    4. The Value of the Property. Property may have the greatest value in “commerce” and “in exchange,” and very little value in “use.” The lands, inferior as farming lands and of limited value as such, have, on account of their situation some value “in commerce.” If considered with reference to farming, the land would be of little value, and if considered with reference to its value in the course of time in view of the extension of a town, it would be very valuable. Adopting neither extreme, the court fixed upon the medium between the two and increased the verdict.
    APPEAL from the Fourteenth Judicial District, Parish of West Baton Bouge — Talbot, J.

      Howe, Spencer & Oocke and L. DePoorter for Plaintiff, Appellee.

      Samuel G. Laycock and L. D. Beale for Defendant, Appellant.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff, sues to expropriate a right of way one hundred feet wide by twenty-nine hundred and fifty-six feet long from one side to the other of the Carolina plantation in West Baton Bouge, owned by the defendant company.

The tract plaintiff seeks to expropriate mns‘diagonally across the 'front lands of the plantation and is situated between the ferry landing opposite the city of Eaton Rouge and Port Allen bounding it above. ■ ., , • ''

Defendant opposes the expropriation, and in its answer sets out that the land is worth two hundred dollars per acre. The superficial area plaintiff seeks to expropriate is six 18-100 'acres. • Defendant further avers that on account of the diagonal course of the road through the land, it would leave the land lying in the angles formed by its intersection with the upper line of St. Michael, a town adjacent, unfit for cultivation; that the railroad embankment would impair the drainage of the front lands and necessitate the making of other drains; that the corn and cotton on the land would be destroyed; that the defendant should not only be paid for tire land but other damages fixed as follows;

0.78 acres of land in right of way...$1356 00

2 acres of land lost. 400 00

Damage to drainage and roads. 500 00

Damage to crops, 8.18 acres, at $20.00. 175 00

$2431 00

and asked for judgment for that amount. The cause was tried before a jury, their verdict allowing plaintiff the six 78-100 acres of land for right of way at thirty-five dollars ($35) per acre, value of the crop at ($12) twelve dollars per acre for cotton and eight dollars ($8) .for corn.

Judgment was rendered in accordance with this verdict. Defendant prosecutes this appeal.

We have only to deal with the weight and value of evidence. Defendant does not charge that • any error has!been committed by the court, either in matter of law or in admitting or rejecting evidence.

The charge of the court fully instructed the jury regarding their duty in estimating the value of the land and in fixing the amount of the damages.

We take up for analysis the testimony of the first witness who testified for the plaintiff. Mr. Theodore Borch said that he is acquainted with the value of lands in the locality in which the land which plaintiff seeks to expropriate is situated; that the land in the centre of the plantation is worth from ten ($10) to thirty ($30) *to forty ($40) dollars per acre, and in the front next to St. Michael it is worth from fifty ($50) to one hundred ($100) dollars; the land in rear of the court house is worth from twenty-five ($25) to fifty ($50) dollars per acre; from where the projected road enters the Carolina plantation to the court house it is worth from three hundred dollars ($300) to three hundred and fifty dollars ($350) per acre, for the reason that it is near the town of Port Allen and the land there is much more valuable than elsewhere. About two months before he was called as a witness, the witness bought a tract of land measuring four hundred acres, situated about two miles from Port Allen, for which he paid ten dollars ($10) per acre. Pie said that it is not as valuable as the property in question, because it is situated at some distance from the ferry landing.

Mr. tCharles Byrnes, another witness for plaintiff, says he paid fifteen dollars ($15) an acre for his plantation consisting of cleared and good land; that forty ($40) or fifty dollars ($50) an acre is the average price for cleared land; that Carolina plantation is not valuable for farming purposes; it will not produce a cane crop; that the land is “black”, “stiff”, and unproductive. Pie confesses that he has no personal knowledge of the character of the land, save by hearsay.

Mr. Alphonse Rivault, also for plaintiff, says that he has ho special knowledge regarding the value of land save that as to crops they never amount to much on this plantation.

Mr. Plrnest IPaydel thought that “stiff” or black lands on Carolina plantation are worth from fifteen ($15) to twenty dollars ($20) an acre, but has no special knowledge of the place.

Mr. A. Y. Dubroca places the market value of the land at twelve ($12) to fourteen dollars ($14) an acre, and along the line sought to be expropriated he thought it was worth from thirty ($30) to forty dollars ($40) an acre.

Another witness, Mr. Louis Kirkland, estimates the value of the land at about thirty ($30) to forty dollars ($40) an acre.

Mr. Babin estimates the value of the whole plantation, measuring eight hundred acres of land, at fifteen or twenty dollars per acre and that .from twenty-five ($25) to thirty dollars ($30) an acre would be about its value because of the-inferiority of the soil in front.

Mr. William Gassie estimates the value of the Carolina plantation at twenty dollars ($20) an acre and the front portion, where the court bouse is, at from forty ($40) to fifty dollars ($50), and tbe part near tbe ferry landing at from fifty to sixty dollars an acre.

Mr. A. D. Barrow called by defendant, said that tbe front of the Carolina plantation is worth ($120) one hundred and' twenty dollars an acre; that one hundred and twenty dollars ($120) was actually offered for tbe front portion of the land by a person well able to buy.

Tbe last witness, Mr. James A. Robertson, for defendant, said that he estimates the land at one hundred and fifty ($150) to two hundred dollars ($200) per acre.

If the minimum of the estimates placed upon the land be taken the amount would be less than the amount of the verdict. If a reasonable maximum of this estimate is taken as a basis, the amount would be more than the amount of the verdict. Comparing figures, and to some extent, averaging the estimates, we think that fifty-five dollars ($55) per acre is a correct estimate of the value of the land. Our attention is directed by counsel’s brief to those decisions- in which it is held that a verdict of a jury as relates to facts is presumed to be correct, also to the section of the Revised Statutes 1481, ordering that the jury shall, by its verdict, determine, after hearing the parties and the evidence. We adhere to the decisions to which we have been referred and we always attach importance to the verdict of a jury, but we think in this case the jury has made an error in adopting too low an estimate.

Regarding the statute just cited, it directs the jury to determine the controversy, but the verdict is always subject to review on appeal. On appeal, the whole case is examined and tried. -*• The whole case is subject to review on the law and the facts, and, if in thus reviewing a verdict, we arrive at the conclusion, despite the respect we entertain for the jury’s verdict, that the amount should be increased, we eanfiot do less than increase it to the amount we think the evidence sustains. This increase, over the amount of the verdict, in view of the evidence in the case is> we think, authorized by our jurisprudence.

With reference to the other items claimed by the defendant, we have found no ground upon which to disturb the judgment.

It is therefore ordered, adjudged and decreed that the verdict and' judgment be amended by increasing the estimate of the value of the land from thirty-five dollars ($35) to fifty-five dollars ($55) per acre, and, as amended, the judgment is affirmed at appellee’s costs.


author: Beeaux, J.

text:
    No. 13,284.
    State of Louisiana vs. Thomas Buford.
    Syllabus.
    1. The testimony of a third person, as to what the wife of the accused said some time before the occurrence, is not admissible, and its rejection, by the court, affords no ground to reverse the Verdict.
    2. The information qualified the intent as “felonious” and afforded no ground of complaint on that score.
    3. The duplicity pleaded is not sustained by the facts. The words used in describing the offence tended to the one act and circumstance constituting the offence.
    APPEAL .from the Eighteenth Judicial District, Parish of Terre-bonne. Oaillouei, J.

      M. J. Cunningham, Attorney General, and L. 0. Moise, District Attorney, for Plaintiff, Appellee.

      Charles W. DuRoy for Defendant, Appellant.
   The opinion of the court was delivered by

Beeaux, J.

An information, duly filed, charged the defendant, Thomas Buford, with stabbing one Alee Mazerac with intent to kill and murder. ITe was found guilty. He moved for a new trial, which was not granted. He filed a motion in arrest of judgment, which was overruled.

The case is before us on two bills of exceptions.

The first was taken to the ruling of the court in rejecting the testimony of Ellis Dupre, by whom the accused sought to prove that shortly before the occurrence in which Mazerac was stabbed the wife of Mazerac begged him (Mazerac) not to go to the ball because his life was threatened by some one at the ball. It appears that she did not refer to accused as making threats. This evidence was offered in rebuttal of an account given on the trial of a quarrel which had taken place at the saloon of one Watkins. It went to rebut, the defendant urged, a motive on his part, as attempted to be shown by the State. The grounds of exclusion of the evidence, as stated by the court and made part of the bill' of exceptions, are that the testimony of a third person regarding the apprehension of the wife of the injured man that be would be killed by other persons than the accused if he went to a ball and for that reason requested him not to go, might prove the fear of Mazerac’s wife, but did not prove the intention of the other persons against him.

The evidence is inadmissable, as it is hearsay, and irrelevant.

The apprehension of the wife, which the accused sought to prove, did not arise at the time, or just previous to the stabbing; but, as we gather, some time prior. The evidence was secondary and hearsay. If admissable at all, the wife should have been called as a witness and not the witness Dupre, who had heard her utter words indicating fear, as before stated.

The wife was a third person. . It is elementary, in matter of evidence, that the extra-judicial statements of third persons can not be proved by hearsay, unless the statements are part of the res gestae, or unless they fall within the other exceptions hot at issue here. Hearsay statements are not admitted, even when the third person by whom they are made is a non-witness. Wharton’s Criminal Evidence, p. 225. But, here it is not asserted that the evidence was part of the res gestae, nor that the witness was a witness whose statements could be heard only in the manner proposed by the accused. In the latter case, we have seen that it would not even then have been admissible. The State had the right to require the presence of the witness. Evidence ought, always, to be given under the sanction of an oath.

Clearly, the evidence of the witness that the wife of Mazerac sought to influence him not to go to the ball, was hearsay, being the evidence of a third person as to what the wife said.

This brings us to the second bill of exceptions taken to the court’s action in overruling the motion in arrest of judgment.

The following are the grounds of the motion in arrest of judgment: First, duplicity in pleading, in this, that defendant is charged with two distinct substantive offences in one and the same count, viz., with stabbing Alee Mazerac with intent to murder, and with cutting and thrusting with intent to murder. Second, the information does not set forth the “felonious” intent.

The court sustains its ruling by the statements,

First, that the intent is sufficiently qualified as felonious.

Second, that there was no duplicity in the pleadings.

We agree with the judge of the court a qua that the felonious intent is properly charged in the information. The information contains all tbe words “feloniously, wilfully, and of his malice aforethought”, in the usual legal form. With reference to the objection that the information is null and void, owing to its duplicity, and that the information charges two distinct and substantive offences in the same count, we do not find that the distinct grounds of complaint are joined in the information. The acts charged constitute but one of-fence, which may be laid in one count.

This court said in State vs. Hendricks, 38 Ann., 683: “Where the acts charged are germane to each other, and to the main charge, and “ taken together constitute but one affair, and make one offence, it is “ uniformly held not amenable to the charge of duplicity.”

The several acts here charged, are joined and, together, constitute but one crime. The one offence charged may consist of all the acts charged. The words used, all tend to the one act, the wounding which is charged to have been committed by “stabbing, cutting and thrusting” in committing the crime with which the accused is charged.

The motion for a new trial contained no special ground upon which to reverse the verdict. The accused complained therein that the verdict was contrary to the law and the evidence.

In so far as the motion may relate to questions of law, it dees not appear that any reversible error has been committed. As far as if may relate to the facts, the- Supreme Court is without jurisdiction to review them.

We have found no reason to reverse the verdict and grant the relief asked.

It is therefore ordered, adjudged and decreed that the verdict and sentence appealed from be and they are hereby affirmed.

Rehearing refused.