text:
    No. 12,780.
    The State vs. Canal & Claiborne Railroad Company, Through Joseph H. DeGrange, President.
    An ordinance o£ the City Council oí the city o£ New Orleans which requires corporations operating street electric ears within the limits of the city, upon tracks laid down in the public streets thereof, to water their tracks so as to effectually lay the dust within its tracks, is a legal exercise of the police power of the city. Such an ordinance tends to promote the comfort and convenience of passengers, and the health and comfort of the inhabitants of the city.’
    It is neither indefinite nor unreasonable.
    r\N APPEAL from the Sixth Recorder’s Court of New Orleans. a-* Arnauld, J.

      James J. MeLoughlin, Assistant City Attorney, and Samuel L. Oil-more, City Attorney, for City of New Orleans, Plaintiff and Appellee.

      -Glegy & Quintero for Defendant, Appellant.
    Argued and submitted May 20, 1898.
    Opinion handed down June 21, 1898.
    Rehearing refused December 5, 1898.
    Taken to Supreme Court of the United States by Writ of Error.
   The opinion of the court was delivered by

Watkins, J.

The defendant, through the instrumentality of its -president, is prosecuted upon the charge of having wilfully and unlawfully violated City Ordinance No. 13,885, C. S., by failing to water its tracks on Claiborne and’ Elysian Fields avenues and other streets of the city which are traversed by its tracks, as required by said ordinance.

On the trial the defendant was found guilty and sentenced to pay a fine of twenty-five dollars, and in default of payment of the fine he was to suffer imprisonment for a period of twenty days in the parish prison, and from that sentence it prosecutes the present appeal to this court.

In the recorder’s court the defendant, through counsel, filed the' following demurrer to the legality of the ordinance, viz.:

1. Because the Oity Council was without power or right to enact such an ordinance.

2. Because the provisions of Sec. 1 of same are so indefinite and unreasonable that no person or corporation therein described is able to know what is commanded to be done in pursuance thereof.

2. Because the same is an attempt on the part of the municipal authorities to exert an unreasonable exercise of the police power, and if same be enforced it would be unequal and not uniform in its operation, “ in that it compels, or would compel one class of persons using the public streets to perform a duty or service not required of other persons making a like use of the same streets.”

4. Because it is unlawful and unreasonable “for the municipal aiithorities to transfer, or attempt to transfer a public burden to private persons or corporations; and that the aforesaid ordinance is an offer or an attempt to make certain persons or corporations perform a service or duty, which service or duty should be performed by the municipal authorities, or under their direction.

“ And said ordinance does not require, or pretend to require the performance of such service or duty by all private persons or corporations in like situation.”

5. Because said ordinance attempts to compel the performance of a service without adequate compensation; and if it is enforced, it wiil take the property and labor of a person or corporation for the benefit of the city without compensation, and without due process of law.

6. This assignment is about the same as last. The demurrer further assigns, that said ordinance is beyond the power of the Oity Council, and is violative of the provisions of the Constitution of the United States and of this State in this, viz.: , .

That the defendant railroad company “ acquired by purchase the right to run its pars on certain streets in the city of New Orleans * * * and the right to maintain and operate its lines of cars upon certain specified and agreed conditions in the contract fully expressed, and the duty or obligation to water their tracks, as provided in Sec. 1 (said ordinance), No. 13,835, C. S., * * * forms no part thereof;” and that said ordinance is an attempted impairment of their aforesaid contract rights, and if enforced it will seriously impair the same.

It further assigns, that the necessity of effectually keeping the dust laid on lines of street ear tracks, if such need there be, is one that “ arises in the course of nature and is not a state or condition created or brought about by the operation of said street cars;” and consequently it is unlawful and unreasonable to impose upon a corporation operating street cars the duty of keeping the dust laid — it having no relation to the operation of the street cars under its contract.

That if it be in the interest of the public that the dust on the street car tracks be kept down, it is unlawful and unreasonable, on the part of the City Council, to require the company to perform this public service.

This extended statement of the defendant’s demurrer may be abbreviated and given more concisely in the following synopsis, thus’:

1. That the ordinance is indefinite and unreasonable in terms; and an unreasonable exercise of the police power of the city is thereby contemplated.

2. That it is unequal and not uniform.

3. That it transfers a public burden to private persons.

4. That it requires the performance of a service without adequate consideration, and takes private property without due process of law.

5. That it is an impairment of its contract rights, in violation of the contract clause of the Federal Constitution.

6. That dust arises in the course of nature, and is not caused or created by the operation of its cars, and, consequently, the ordinance unwarrantably and -unreasonably imposes that duty upon it.

On the other hand, it is the contention of the city attorney that the City Council, in the exercise of the police power which is vested in the city of New Orleans, has the right to enact ordinances so regulating the use of streets by electric railways as to compel them to keep their tracks in such condition as to prevent a nuisance, and to protect the health, convenience and comfort of its inhabitants.

That an ordinance which requires street car corporations to water their tracks so as to effectually keep down the dust thereon is definite and reasonable, and as such it is a valid and proper exercise of the police power.

His further contention is, that the police power of a city can not be alienated or bartered away by any contract, and, consequently, the city always retains the right to impose upon citizens and corporations — particularly upon those exercising and operating public franchises — the duty and burden of so conducting their operation .and use as to promote the convenience and to protect the health and the comfort of .the public; and it forms a necessary incident of the contract which is read into it.

That all 'persons, natural or artificial, are subject to the police regulations of the municipality in which they live.

Two things are conspicuous upon casual inspection of the ordinance, (1) that its provisions exclusively deal with corporations operating lines of street ears within the city of New Orleans, under franchises acquired from the Oity Council; (2) and does not deal with any contract right as such corporations have acquired from the •city under their franchises.

The ordinance under consideration, confessedly and in terms, proposes an exercise of the police power under municipal regulation, and that alone.

The questions which arise are the following, viz.:

1. Is the ordinance indefinite, unreasonable, or lacking in uniformity?

2. Does it transfer a public burden to private individuals or persons ; or take property without due procecs of law, or adequate compensation?

The ordinance is couched in the simplest form of words, viz.:

Beit enacted, etc. That each and every company or corporation operating street ear lines within the limits of the city of New Orleans shall water their tracks so as to effectually keep the dust on same laid” — providing a penalty for its violation.

It is certainly neither indefinite or wanting in uniformity. It does not propose to take the private property of the corporation without due process of law.

After making the foregoing careful synopsis of the ordinance and the defendant’s demurrer, our conclusion is, that the two questions for consideration are (1) whether the ordinance is unreasonable; and (2) whether it was an attempt to place a public burden on private persons.

We may well premise the discussion by referring to the provisions of a prior ordinance on the same subject matter bearing the number 12,911, O. S., which was examined by this court in State vs. New Orleans City & Lake Railroad Company, 49 An. 1571, as that ordinance and decision will serve to illustrate the one under consideration.

It is as follows, viz.:

Be it enaelecl that hereafter it shall be unlawful for any person, firm, or corporation to operate any electric, trolley or other cars or trains on the streets of this city without providing in some reasonable manner for the sprinkling of the streets through which their cars run.”

That ordinance, contained a penal clause which is as follows, viz.:

“That any person, firm or corporation violating this ordinance shall be guilty of a misdemeanor and shall be subject to a fine of twenty-five dollars, or thirty days in the parish jail, or both, at the discretion of the Recorder,” etc.

Ordinance No. 13,835, 0. S., is an attempted reformation of Ordinance No. 12,911, O. S., so as to meet the interpretation which this court had placed upon it in the case cited. The difference between the two is radical in several respects:

1. The later ordinance does not provide, as the prior ordinance did, that it shall be unlawful for any company or corporation to operate an electric car on a street of the city without providing for the sprinkling of the streets through which their cars run.”

2. The later ordinance does not provide, as the prior ordinance did, that any firm or corporation violating its provisions should “be guilty of a misdemeanor.”

3. The later ordinance simply requires that each and every corporation “shall water their tracks so as to keep the dust on same laid.”

After paraphrasing the prior ordinance, our opinion speaks of its operation in this wise, viz.:

“The facts as developed by the testimony * * * are, that by reason of the velocity of the car and its weight and its rapidly • revolving wheels, volumes of dust are raised and wafted by the winds to the streets adjacent to the tracks; that the clouds of dust are counter to the health and comfort of the inhabitants.”

From the large number of defences and pleas which the defendant had urged in that case, as it has in this, our opinion selected that of unreasonableness and indefiniteness, resting the conclusions of the court mainly upon the authority of Yick Wo vs. Hopkins, 118 U. S. 371.

Our opinion then says:

“ There is indeflniteness in the ordinance. It does not set forth with the least particularity what shall be done, or the extent of the service required in order to escape the penalty it ordained should be inflicted for not sprinkling the streets. The failure or performance may vary each day, and in eaeh locality where sprinkling may be requred. No attempt was made to indicate how the work shall be done; the days the streets should be sprinkled; the capacity for sprinkling the sprinklers should have, and the number of sprinklings that should be applied each day, or at such time as may have been intended.
“Without a matured plan covered by the terms of an ordinance in regard to sprinkling streets nothing good or useful can be accomplished. It will give rise only to confusion and failure.
“Authority must issue its orders with such clearness and definiteness that it may be understood, and the work required should be so specified that performance can be required in every locality and from every one under some defined rule.
“There should be some similarity in the work in each district; there can not be under this ordinance. There should be a measure of duty imposed, and those upon whom it is imposed should not be left to conjecture how much or how little they should do.”

The opinion then deals with the question of the equality and uniformity of the operation of the ordinance and it thus proceeds:

“ This brings us to the objection that the ordinance is not equal and uniform in its operations, and imposes an unjust and oppressive burden upon a particular class of persons or corporations.
“ In so far as relates to the work of sprinkling ’ the streets from curb to curb less that portion over which defendant has a franchise, in our judgment, the requirement of the ordinance is not equal and uniform.
Those streets are used by the public. The work necessary to maintain their cleanliness, or to insure freedom from excessive dust, is a burden which the municipality can not impose upou particular persons and corporations, only because they own a franchise over an adjacent way. * * * Ttie defendant can not be compelled to clear and sprinkle streets not covered by its contract and over which it has no franchise. The dust raised by defendant’s ears, it may be, is carried by winds to the streets near. The evidence does not disclose that such is a fact. Presumbably however it is; but defendant’s ears are not the only vehicles which raise the dust, and it would scarcely be desirable equality to make it sprinkle all the dust.” (Our italics.)

As well illustrating the scope of that ordinance, the following extract from our opinion may be cited, viz.:

“The question may be propounded: Oan they not be made to sprinkle their own tracks and relieve their own road, as well as the adjacent streets, or the dust raised by their cars?
“ To this the answer immediately suggests itself: The ordinance being indefinite and uncertain, it would serve no purpose to decide in this case the issue raised by the question,”

The conclusion reached was, that the ordinance was both indefinite and unreasonable, and consequently illegal, and that the penalty it provided could not be enforced.

This extended quotation from our opinion was considered necessary for the purposes of showing (1) that the ordinance was considered indefinite and unreasonable, principally upon the ground that it should be unlawful for a corporation “to operate any electric, trolley or other cars or trains on the streets of the city without first providing,' in some reasonable manner, for the sprinkling of the streets through which their oars run ” — that is to say, from curb to curb.

That provision required of street car companies to provide “ in some reasonable manner for the sprinkling of the streets through which their cars run,” notwithstanding they were at the same time used and employed for the general uses and traffic of the city.

Simply because they exercised a franchise upon certain streets of the city, the ordinance singled out these corporations, and imposed upon them, solely and alone, to bear a public burden which should have been discharged by the city, or shared by the general public.

Besides that, the terms of the ordinance which required of street car companies that they should provide “in some reasonable manner for the sprinkling of the streets ” were most indefinite and indefinable, as to time, manner, amount and extent.

The ordinance under present consideration is free of many of those complications; and it was doubtless the intention of the City Council that it should be entirely disembarrassed by them.

Recurring to its phraseology we find “ that each and every company or corporation operating street car lines within the limits of the city of New Orleans shall water their tracks,” but not only so, hut to water them “so as to effectually keep the dust on same laid."

It is obvious that the duty imposed is specific; that is, “to water Ifcheir tracks.” It does not require them to “ sprinkle the streets,” nor to sprinkle their tracks, but to water them. Water them where, and to what extent? “So as to effectually keep the dust laid on same."

To water that part of the streets which is occupied and used by their tracks, and immediately covered by their franchises, is an altogether different thing from sprinkling the streets from curb to curb; and, to a very great extent at least, relieves the ordinance of the onerous and oppressive feature that was properly attributed to the former ordinance — the imposition upon private individuals and corporations of a public burden.

We are thus brought to the discussion of the sole remaining question in this case, and that is whether or not this ordinance evidences and authorizes a proper and legitimate exercise of the police power; for it must be admitted — and it is a question which is free from doubt —that if it trenches, in any particular, upon the defendant’s contract rights, it is inimical to the contract clause of the Federal Oonstitution.

Among the powers which are expressly conferred upon the City •Council are the following, viz. :

“ That the Council shall have power, and it shall be their duty to pass such ordinances, and see to their faithful execution, as may be necessary and proper; * * * to regulate * * * all places of business likely to be or become detrimental to health; and to adopt such ordinances and regulations as shall be necessary or expedient for the protection of health and to prevent the spread of disease; and to maintain a good sanitary condition in the streets, public places and buildings,” etc. Section 14 “ O,” Act 45 of 1896, the city charter.

It specially provides that it is the duty of the City Council to preserve the good order of the city and to maintain its cleanliness and ¡health.” Id.

. They are specially required “ to suppress all nuisances.” Id.

That “ the Council shall have the power to authorize the use of ¡the streets for railroads operated by horse, electric, steam, or •other motive power, and to regulate the same,” etc. Ibid., See. 15, ¡paragraph 13.

The evident purpose and object of these and other provisions of the city charter was, in express terms, to subordinate the uses and franchises the city should have granted to street railroad companies to its right to regulate the same and keep them subject to its police dominion and control; for it can not be reasonably contended that because a corporation or private person has acquired the franchise of operating lines of electric cars in the streets of the city, that such franchise carries with it the right to so use and operate their cars as to become detrimental to the public health of the city, and hence a public nuisance, and that the Oity Council has not the power to regulate the same by means of reasonable and appropriate ordinances.

It is the right of use and not of abuse that the franchise confers.

It is evident that the city can not barter away her police powers; nor can she, by her contracts, estop herself from exercising the power of suppressing nuisances, or preserving the public health, and the comfort and cleanliness of the inhabitants of the city.

It is equally evident that an ordinance which requires that a public business should be so conducted, or a public franchise so operated, as not to be detrimental to the public health, or the cleanliness and comfort of the people of a city, does not deprive the owner of such a franchise of its property without due process of law or adequate compensation.

That in the latitude in which the city of New Orleans is located, and in its physical situation, of which this court will take judicial cognizance, the operation of electric cars during a protracted summer season, where thousands of persons — particularly ladies and children — are constantly traveling in them, will produce a sufficient quantity of dust, in their operation, to constitute a nuisance to passengers, and become detrimental to public health, needs no» demonstration.

Of course it is idle for the council to attempt to coerce those corporations to so operate their cars as to create no dust. That would be a physical impossibility.

Hence the Oity Council has attempted, to do the only thing which* in our opinion, it was possible for them to have done — that is, to pas» an ordinance requiring them “to water their tracks so as to effectually keep the dust laid on same.”

Following the rule which we have constantly adhered to in this class of cases, we have looked into the evidence for the purpose of ascertaining whether the dust is produced by the defendant’s cars, or sensibly contributed thereto by them upon their tracks; for upon such evidence must depend the right of the City Council to attempt to regulate the defendant’s use of its franchise so as to preserve the health, comfort and cleanliness of the people using its cars.

In the first place the record contains an agreement to the effect “ that all the testimony and evidence offered on the part of the New Orleans City & Lake Railroad Company and the city of New Orleans in the original suit, No. 15,559” — the ease from which we have made extracts supra — be considered and received as offered “in the instant case without being copied into this transcript,” etc.

The testimony of one of the defendant’s witnesses in this case, as shown by the following interrogation, fairly illustrates the situation:

“ Q. How is the dust brought upon the car track?
“ A. The dust is brought, or rather the wind is brought on the car tracks by vehicles coming from unpaved streets principally. There are also large quantities of manure, etc., dropped on the streets.
“ Q. None of which is dropped by the electric cars?
“ A. No, sir.
“ Q. After a rain, and the streets become muddy, and the vehicles, as you say, by the mud being attached to their wheels, carry it and deposit it on the tracks? What becomes of it?
“ A. The mud is dried first, of course, and the vehicles grind that mud into dust.
“ Q. The vehicles grind the mud into dust?
“ A. Yes, sir; other vehicles.
“ Q,. Vehicles alone?
“ A. Vehicles and animals.
“ Q. In what respect do the cars contribute toward grinding this mud into dust?
“ A. To a very small extent — only on the surface of the rails.
“ Q,. Is that appreciable?
“ A. Well, it is only a matter of opinion. I don’t think it does amount to anything.
“ Q,. After this mud is dry and becomes ground into dust by vehicles, and by the tramping of horses and mules, what becomes of it?
. “A. Well, it stays on the street; to a very large extent the cars have a tendency to brush it off the tracks.” (Our italics.)

The witness thus describes the situation after the cars have been operated on the streets for several days, and the drying process of fair weather has had its effect upon the mud which has been thus brought upon the railroad tracks.

“ Well, on a paved street there is a section between the rails— between the rails and the gutter which, is comparatively clean; the dirtiest portion of the street is nearest the rails inside and out; principally out, where the dirt is dropped from the wheels of the vehicles.”

Again:

“ Q,. With the exception of the few narrow streets to which you have referred I understand you to say that the effect of a car passing over the roadbed after the mud has been ground and dried is to sweep by its passage the dust away from the car track?
“A. The effect is to clean the track.”

Obviously, the trend of this statement and of other witnesses to the same effect is to establish the fact that the ears of the street electric railway companies are an important factor in raising the dust which is complained of as a nuisance and a discomfort. This proof is consonant with common knowledge and experience on the subject.

That the movements of the electric ears produce a great deal of dust is substantiated by the witnesses who testified in suit 12,559, to which we have referred.

The following interrogation of a witness in that case will illustrate that proposition, viz.:

“ Q. Have you ever seen a street ear run through the Third District?
“A. I think I have.
“ Q,. Well, I have you, I say?
“A. Yes, sir, I have certainly.
“ Q,. What line?
“A. Dauphine line — Dauphine and Barracks.
Q,. What effect did the passage of these cars have upon the dust of the streets?
“ A. It has a great deal of effect.
“ Q. Please state what the effect is?
“A. It creates a great deal of dust.
“ Q. Is that dust uncomfortable?
A. Very much, sir.
“ Q. Do they create any more than any other vehicles passing the street?
“ A. Yes, sir.”

He says “ there is a greater quantity of dust where the cars are running, and you can follow up behind every car in my street and see rafters of dust after every bar.”

Another witness says that through the streets that are ordinarily traversed by these cars “more dust is raised by them than by any other vehicle that I have seen traveling on the streets.”.

This witness was a practising physician in the city of New Orleans of thirteen years’ experience.

“ Q. What is the effect of these clouds of dust on the health of the inhabitants of those streets and the passengers in the cars?

“ A. (Substantially that) inhaling of dust raised by those cars is irritating to the organs of respiration,’ ” etc.

This witness confirms the statement of the former witness with regard to the greater volume of dust which is produced by the electric cars than any other vehicles which use the streets of the city.

The following is quoted from the interrogation of the president of the State Board of Health, viz.:

“ Q. Your Board of Health has requested the authorities to enforce this ordinance which the accused is charged with violating?
“ A. No, .sir; we attempted to enforce it ourselves, believing that we were capable of enforcing all ordinances connected with sanitation.
“ Q. Now, you have noticed these cars going through the streets— these electric cars?
“ A. Yes, sir.
“ Q. Do they create any dust — more than any other vehicle?
“ A. I think they are the cause of the dust arising.
“ Q. Now, in the operation of those cars without sprinkling the-streets, does that constitute a nuisance?
“ A. I think it has an injurious effect upon the health.
“ Q. Has the Board of Health ever declared this operation of the cars, without sprinkling the streets, a nuisance.
“ A. I could not say that the specific action of the board stated that it was a nuisance, but the board did, by specific action, determine to enforce the law as a sanitary measure.
“ Q. Now, when you say as a sanitary measure, is the operation of the cars, without sprinkling, injurious to the health of the inhabitants?
'• A. Well, the dust we conceive to be injurious.
“ Q. It is?
“ A. Yes, sir.
“ Q. And is it more injurious, or is more injury caused by the dust from the street cars, than from the dust from any other vehicle?
“ A. By reason of the greater amount of dust.”
Again:
“ Q,. Doctor, you have ridden around the city in street cars during dusty weather?
“ A. Yes, sir.
“ Q. Have you ever been inconvenienced by the dust in those cars?
“A. Yes, sir; frequently.”

Another witness, a member of the Board of Health, and a physician of thirty years’ experience, said:

“ Q. You have often traveled in street ears oi New Orleans City & Lake Railroad Company?
“A. Yes, sir; very often all over the city?.
“ Q. Do they create any dust?
“A. Yes, sir; they do.
“Q. Do they create any more dust than any other vehicle passing through those streets?
A. I think so; by reason of the velocity of the car which gives a kind of draught or vacuum which causes large volumes of dust to surround the car.”

So much of the evidence is sufficient for all the necessary purposes of this case; and whether same be put to the practical test of the judgment of the layman and casual observer, or that of scientific analysis and sanitation, we think it reasonably clear that the operation of the street electric cars is the principal cause of the dust which is complained of, and that it is shown to be a nuisance, injurious to the public health and that of persons who use them for purposes of travel, and detrimental to the comfort and convenience of the public.

We regard the foregoing evidence as a complete answer to the following proposition which we have extracted from the brief of defendant’s counsel, viz.:

“ The defendant further shows that the need to keep the dust laid on the lines of track, if any such need there be, was a necessity that arose in the course of nature and is not a state or condition brought about by the operation of the said street car lines; and that it is unlawful and unreasonable to impose upon corporations operating said lines, the duty to keep the dust laid when the said duty has no relation to. the operation of the said street car lines, and arises from no condition created or brought about by the operation of said lines; and when said service is not required by the contract with the city and the duty of service is outside and beyond the contract, and a duty which is owed by the municipal authorities to the inhabitants.”

Again:

“ The Canal & Claiborne Railroad Company, the licensee of the city of New Orleans, has purchased and paid for the right to use certain streets for the carrying of passengers. It pays a license tax, as well as property tax, and is performing a quasi-public function, carrying passengers for hire in the streets. The fact that it is quasi-public, and has purchased and paid for this right to use the streets, does not destroy the character of its business, or make it subject to other and different rules of law than any other citizen who uses the street for profit. It would be unreasonable to require the dray owner to attach a sprinkling apparatus to his dray, or to require his dray to be followed by a water cart; and it would be unreasonable to require the omnibus lines to run sprinkling carts; it would be unreasonable to require of the'procession of furniture vans, sugar wagons, cotton floats and pleasure vehicles to be equipped with sprinkling apparatus, or to be preceded or followed by water carts, simply because they use the streets of the city. And so we say that there is no reason to require the street car companies to perform this service at great expense when the service is not required of other persons or firms, or corporations making a like use of such public highways. And when it is seen that the dust is not produced by the railway company, is not brought upon the street by them, but its appearance and the annoyance of the dust is not related to the operation of the railroad lines, to require them ‘to lay’ the dust would be no more reasonable than to require them to remove the garbage, sweep the streets, clean the gutters and light or pave the streets, or maintain the police along their route.”

The examples counsel gives of the right which the proprietor of a dray, the water-cart, the omnibus, furniture van, sugar wagon, cotton float and pleasure vehicle has to the free use of the street for the purposes of his business are inappropriate, because neither exercises a franchise.on the public streets of the city; but their use of the streets is just the ssme as that of any other private citizen.

Whilst each of said proprietors are licensed by the city to pursue his respective calling, his use of the streets is merely incidental thereto; but the street-car company purchases from the city a public franchise or right to lay its tracks of steel fixedly and permanently in the centre of the public highways of the city, and to maintain same therein for a period of years, and to operate their cars thereon for the purpose of carrying passengers for hire.

And it is disclosed by the evidence thst the dust which occasions the inconvenience and discomfort of the passengers., and the detriment to public health, is directly and immediately referable to its use of that franchise, and it is that injurious use and enjoyment of its franchise which the aforesaid ordinance is intended to regulate.

The question arises upon the foregoing state of facts, whether the watering of the tracks of the street railroad companies so as to effectually keep down the dust, as proposed in the ordinance, is an exercise of the police power; if so, is it reasonable, definite, and equal and just in its operation.

The ordinance is merely a municipal regulation, and in no sense a criminal statute. Corporation of Amite City vs. Holly, 50 An. —.

The persons with whom it exclusively deals are public corporations who are operating public franchises to be operated as carriers of passengers for hire, and the evident object of the City Council in enacting it was to improve the comfort and convenience of the passengers who were transported upon it and incidentally to suppress a quasi-nuisance and preserve the public health.

It is further argued by defendant’s counsel that the large expense of watering their tracks will render this ordinance so burdensome as to seriously impair its franchise and render its revenues non-remunerative.

To this proposition there are two sufficient answers:' (1) that this exigency of defendant’s franchise must be reasonably supposed to have been within the contemplation of the contracting parties when the franchise'was secured, and consequently an incident thereof;' (2) that the greatly increased convenience and comfort of trave 1 which the suppression of the dust would occasion would entirely compensate the increased cost by a corresponding increase of travel.

The principles of law appertaining to the exercise of the police power of a State or municipal government have been so frequently enunciated by the courts of this State as well as by those of other States, and of the Supreme Court, that the chief difficulty presented to the judicial mind consists in the selection to be made therefrom of those most suitable to the question under discussion.

It wil therefore be useful to jurisprudence to quote from some of the most conspicuous decisions and apply their precepts to the instant case.

In Chaffe & Sons vs. Trezevant, 38 An. 746, this court said:

“ What the police power of a State is, it is difficult to determine with precision. It is generally said to extend to the protection of the lives, health and property of the citizens and the preservation of good order and good morals; to the promotion of domestic tran - quillity and the comfort and quiet of all persons.
“ By the general police power of a State, persons and property are subject to all kinds of burdens and restraints in order to secure the general comfort, health and prosperity of the people.”

In Bass vs. State, 34 An. 494, it was well said that it is a settled principle, growing out of well ordered society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their own property, nor injurious to the rights of the community.”

That opinion was very largely predicated upon the leading case of Commonwealth vs. Alger, 7 Cushing, 53, which is cited in the brief of defendant’s counsel.

In the conspicuous case of Stone vs. Mississippi, 101 U. S. 814, the Supreme Court said:

All agree that the Legislature can not bargain away the police power of a State.
# í}: * * * *
“ Many attempts have been made in this court to define the police power, but never with entire success.
“ It is always easier to determine whether a particular case comes withm the general scope of the power, than to give an abstract definition of the power itself which will be in all respects accurate.

“No one denies, however, that it extends to ail matters affecting the public health or the public morals.” (See also Beer Company vs. Massachusetts, 97 U. S. 25; Patterson vs. Kentucky, 97 U. S. 501; Boyd vs. Alabama. 94 U. S. 645; Fertilizing Co. vs. Hyde Park, 97 U. S. 659; Munn vs. Illinois, 94 U. S. 124; Metropolitan Board, etc., vs. Barrie, 34 N. Y. 657.

The court then added this strong statement, viz.:

“ No Legislature can bargain away the public health or the public morals. The people themselves can not do it, much less their servants. The supervision of both these subjects of governmental power is continuing in its nature, and they are to be dealt with as the special exigencies of the moment may require., Government is organized with a view to their preservation, and can not divest itself of the power to provide for them.
“ For this purpose the largest legislative discretion is allowed and the discretion can not be parted with any more than the power itself.”

In Trustees of Dartmouth College vs. Woodward, 4 Wharton, 518, Chief Justice Marshall employed this forcible language, viz.:

“ The peoplein their sovereign capacity have established their agencies for the preservation of the public health and the public morals, and the protection of public and private rights. These several agencies can govern according to their discretion, if within the scope of their general authority while in power; but they can not give away nor sell the discretion of those that are to come after them, in respect to matters, the government of which from the very nature of things must vary with varying circumstances.
“They may create corporations and give them, soto speak, a limited citizenship; but as citizens, limited in their privileges or otherwise, these creatures of the government creation are subject to such rules and regulations as may from time to time be ordained and established for the preservation of health and morality.
" The contracts which the Constitution protects are those that relate to property rights, not governmental.” (Our italics.)

The foregoing authorities, particularly the last, seem especially appropriate to this case.

In making an application of these principles, one of the text writers says that the correct doctrine is “ that while the State may not prohibit a business, innocent in itself, when it is pursued in a lawful way not injurious to the community, and while the police regulation of pursuits, and of the employment and uses of property must be limited to such restrictions as aye reasonably necessary to protect legitimate public interests, and to secure, as far as possible, the largest freedom and the greatest good of all members of the community, it is not within the authority of judicial tribunals, to set aside laws enacted ostensibly to promote the public welfare, unless it is perfectly clear upon the face of the statutes, or from their terms, that they have no real or substantial relation to the objects to which they purport to be directed, or that they infringe upon and impair fundamental rights secured by constitutional guarantees.”

■ Parker and Worthington’s Public Health and Safety, Sec. 9; Tiedeman’s Police Power, Sec. 2; Cooley’s Con. Limitations, pp. 177, 201; Davis vs. State, 68 Ala. 58; State vs. Wheeler, 25 Conn. 290; Boston vs. Cummings, 16 Ga. 102; State vs. Clatter, 33 Ind. 409; Humes vs. Railroad Co., 82 Mo. 221; Berthoff vs. O’Reilly, 74 N. Y. 509;

“In other words,” says the writer, “the right to exercise the police power can not be alienated, surrendered or abridged by a State Legislature by any act, grant, charter, contract or delegation whatsoever, because, it is said, it is a governmental function without which the Legislature would be powerless to protect those rights which it was especially designed to secure. So that the Legislature can not, even by charter granted to a corporation, confer any irrepealable right to continue the exercise of franchises in a way that may have become injurious to the public,” citing Stone vs. Mississippi, supra, ibid.

In treating of the police control of corporations, Mr. Tiedeman says:

“It has been supposed that because it is the settled law of this country that the Legislature of a State can not repeal or amend the charter of a private corporation unless the power is expressly reserved, these perpetual corporations are placed beyond the reach of the ordinary police power of the State; that while the rights of the natural person are subject to the exercise of the police power in the interest of the public, those corporations are free from this burden because the slightest police regulation operates as a restric tion of the enjoyment of the corporate franchise, and hence impairs the obligation of the contract.
Such a construction of the operation of this constitutional provision is not only scientifically absurd, but it is. in violation of the ordinary rules of constitutional construction, which provide for a strict construction of all grants by the State to the individual.
“ Apart from the question whether the State can barter away its police power, the intention of the Legislature to place a private corporation beyond the reach of the police power of the State; to grant to a corporation the right to do what it pleases in the exercise of its corporate powers, it matters not how much injury is inflicted upon the public, and yet be subject to no control or restraint which is not provided by the laws in force when the charter was granted', is so manifestly unreasonable that we can not suppose that the Legislature so intended, unless this extraordinary privilege is expressly granted. * * *
“The subjection of existing corporations to new regulations does not involve a repeal or amendment of the charters, for an act of incorporation simply guarantees the right to act and do business as a corporate body, subject, of course, to the laws of the land, and the legitimate control of the government” (our italics). Tiedeman’s Lim. of Police Power, Sec. 189, 1890.

These two sections of that excellent treatise are largely drawn from the conspicuous Louisiana case, Butchers’ Union Slaughterhouse Company vs. Crescent City Live Stock Company, 111 U. S. 746.

In that case the court broadly and emphatically said, that the Legislature óf a State “can not, by any contract, limit the exercise of its police powers to the prejudice of the general welfare. These are the public health and the public morals. The preservation of these is so necessary to the best interests of the social organization that a wise policy forbids the legislative body to divest itself of the power to enact laws for the preservation of the health and the repression of crime,”

The author again says:

“But the corporation is no more subject to arbitrary regulations than is the individual. In order that the regulation of a corporation may be within the constitutional limitations of police power it must have reference to the welfare of society by the prevention or control of those actions which are calculated to inflict injury upon the public or the individual. As in all other cases of the exercise of the police power, the police regulations of corporations must be confined to the enforcement of the maxim sic utere tuo ut alienum non Isedas > subject to the observance of which every corporate charter must be supposed to have been granted.” Section 191, Id.

The foregoing principles were sanctioned by this court in State vs. Heidenhain, 42 An. 483, in which it was said by the court:

“The police power delegated to the city of New Orleans in its charter, gives ample authority to the city to maintain its cleanliness and health, and to maintain good sanitary conditions in the streets, public places and buildings, to suppress all nuisances and to impose a fine and imprisonment for the violation of such ordinances,” etc.

Again:

“The authority to abate nuisances is a part of the police power vested in all large and populous cities. To determine what is a nuisance is a question of fact.”

In that case this court maintained as a valid and reasonable exercise of the police power of the city of New Orleans, an ordinance prohibiting smoking in the street cars of the city.

In State vs. Lochte, 45 An. 1405, this court maintained the legality of an ordinance of the .city of New Orleans which'prohibited private individuals from obstructing the streets and banquettes of the city, as an exercise of the police power of the city.

But in addition to the foregoing authorities on the general principles of law applicable to this kind of a case, we have been referred to a case in point, The City & Suburban Railway Co. of Savannah vs. The Mayor, etc., 77 Georgia, 732; and from the statement in the opinion it appears that the appellant was fined by a city police court on the charge of “ neglecting to water the track on which it ran through the streets of the city.”

The court said:

“ Surely to keep down the dust from the railways’ own tracks by watering them within the city limits and on its streets is a very requisite and necessary thing for the welfare and convenience of the inhabitants on the streets over which the road is constructed, to say nothing of its health-preserving effect. The cars constantly run; almost every minute they pass each house on the street, and if the track be left unwatered the dust becomes very inconvenient to those who lodge in the house, and in warm weather sit on the stoops or open the windows.”

The court sustained the ordinance as legal and rested their conclusions mainly upon Railroad Company vs. Richmond, 96 U. S. 521, in which the court held that “ the appropriate regulation- of the use of property is not ‘taking’ it within the meaning of the constitutional prohibition.”

Judge Dillon, in a recent edition of his work, approves the decision of the Georgia court and says:

“Under its police powers and authority over streets a city may require street railway companies to keep their streets watered so as to be free from dust.” 2 Dillon’s Munic. Corps., Sec. 720 (Fourth Edition).

McDonald vs. Toledo Consolidated Street Railway Co., 74 Federal Reporter, 104, announce a similar doctrine.

A similar ordinance was sustained by the Pennsylvania Court recently in Chester vs. Chester Traction Company; American Digest, 1897, p. 4928.

On reason and authority we are of opinion the ordinance “of the City Conhcil of the city of New Orleans must be sustained as a legal exercise of the police power, and as neither indefinite nor unreasonable.

Judgement affirmed.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 12,863.
    Succession of Royal A. Bray.
    The heir accepting the succession unconditionally may be compelled to give security for the debts of the succession, or submit to an administration of the property of the deceased. Civil Code, Arts. 1004, 1005 et seg. .

    Nor is the creditor’s right, inthis respect, defeated by the ex parte order, roeognizing the widow and heirs of the deceised, and putting them in possession of the succession property.
    A PPEAL from the Civil District Court for the Parish of Orleans. “ King, J.

      Lazarus & Luce for James A. Andrews, Plaintiff in Rule, Appellant.

      Dart & Kernan for Widow and Heirs of Bray, Defendants in Rule, Appellees.
    Argued and submitted November 23, 1898.
    Opinion handed down December 19, 1898.
   The opinion of the court was delivered by

Miller, J.

The appellant, a creditor of the succession of Royal A. Bray, takes this appeal from the judgment dismissing the rule of the creditor to compel the widow and heirs of the deceased to make an inventory of the effects of the succession, and give security for its debts, or submit to an administration of the succession property.

The deceased died on December 22, 1897. A few days after, i. e., January 5, 1898, his widow and heirs presented their petition to be recognized and put in possession of the property of the succession, and the order was then made in accordance with the prayer of the petition. In February, 1898, the appellant, as a creditor of the sue - cession, took the rule on the widow and heirs, and was met by the exceptions that his rule came too late, and of no cause of action. The case is before us on the creditor’s appeal from the judgment of the lower court maintaining the exceptions.

The argument of the defendants in rule, in effect, is that the order putting the widow and heirs of the deceased in possession of the property of the succession closed it, precluded all further proceedings in it, and left the appellant no remedy to obtain an administration of the property of the succession, with a view to the payment of its debts, and equally precludes him from any demand of security for his debt. If this contention is sustained the appellant is confined to an action of separation of patrimony, given by the Code, to guard against the mingling of the succession property with that of the heir (Civil Code, Art. 1441 et seq.) ; or to the pérsonal action against the widow and heirs, liable for the debts of the deceased. If under our law the creditor has the right to demandj[the inventory and adminis - tration of the property of his deceased debtor, with the view of securing the application of the property to pay the debts of the-debtor, the right the appellant asserts by his rule, that right has been lost, not by any act of the creditor, but by the ex parte order of the widow a.nd heirs.

The heir called to the succession may accept under benefit of inven - tory, administer, sell the property, apply proceeds to pay the succession, and take the residue, thus limitiogpfis] liability to that which he receives; or the heir may accept unconditionallyJaiid go into possession, but subject to the right of the creditors to insist on an inventory, secarityjfor ^succession debts, or j an administration under the appointment by the court. In either case, acceptance with benefit of inventory or simple acceptance, there is preserved to the creditors the recourse they should have on the debtor’s property, by securing to them, if they demand it, an administration to subject that property to their debts. The creditor’s right in this regard was, perhaps, abundantly secured under the articles of the Code as-it originally stood. Code of 1825, Arts. 1004, 1005. In the same-line of protection to creditors the Legislature, in 1828, incorporated in the mass of amendments to the Code of that year the enactment since known as Art. 1012 of the Code, to the effect that no heir-should be allowed to receive possession of the effects of the succession if there were creditors with suits pending, unless the heirs gave security if required by the plaintiffs in such suits. The question before us is whether the ex parte action of the widow and heirs of the deceased debtor has deprived the appellant of the right conferred by the article of the Code, originally Art. 1004 of the Code of 1825, reproduced as Art. 1011 of the Code of 1870.

Our jurisprudence is quite familiar that distinguish the remedies'of creditors, when the succession of their debtor is under administration; from the remedies of creditors to procure payment of the debts of the deceased when the administration is ended. It is off ready acceptance that when the administration is closed the creditors must exert their rights against the person who succeeds to the-liabilities as well as the property of the deceased. Thus, where the-heirs with no opposition from the creditors go into possession and partition the property of the succession, or hold-without partition, or where the administration is completed and the administrator or executor discharged; or where, before the-administration is closed the heirs end the seizin of the executors by providing for the payment of-the legacies; in these and other-cases where no administration exists and none is requisite, our courts have held the succession ceases — that is, creditors of the deceased cam neither demand the continuance of administration or the appointment of another administrator or executor, but must resort to suits: against the heirs in the courts of ordinary jurisdiction. Boguille vs. Faille, 1 An. 205; Soye vs. Price, 30 An. 93; Fowler vs. Succession of Gordon, 24 An. 22, 270; Succession of Lampton, 35 An. 418. This line of authority cited by the defendants, in our opinion, has no tendency to exclude the demand of the creditor who calls on the beneficiary heir for security, or an administration, given by the. •Code when there has been no administration. It can not be claimed that this right of the creditor is defeated by an ea; parte order of recognition the heirs and widow of the deceased obtained within a ■few days after the death of the deceased. If the creditor is clothed with the right he asserts, the right would be nugatory if the heir ■could defeat it by his ea; parte application made with the promptitude exhibited in this case. We can conceive of an acquiescence by the creditor in such an order deduced from the lapse of time with no opposition from creditors, but we have no such element of long possession of the heir and of assent on the part of creditors. There is another right given to creditors for payment of the debts of the deceased that is suggestive in this controversy. Within three months the creditor may demand the separation of the property the heir inherits, so that the rights of .the creditor on the property of his 'deceased debtor may be preserved. Within this period of three months the heir can not alienate or encumber the succession prop«erty. C. 0., Art. 1441 et seq. If the law allows three months for '•the institution of the suit for separation of patrimony, it may well «be deemed that the demand of the creditor for security and an . administration is not to be denied as too late made almost within a month after the death of the deceased. In our view the ex parte ■ order did not preclude plaintiff’s demand, nor can we perceive any .bar in the lapse of time.

It is urged that plaintiff is estopped from the relief he seeks, be-cause, subsequent to the order recognizing the heirs, he dealt with them as liable for the debt of the succession. They incurred that liability by. their simple acceptance. We can not perceive that because the creditor received a payment from the heirs on account of his debt that he lost the right to demand an administration of the succession property.

It is therefore ordered, adjudged and decreed that the judgment •of the lower court be avoided and reversed, the exceptions be and -they are hereby overruled, the rule of plaintiff be remanded for trial .'and that defendants pay costs.

Absent: Nicholls, O. J.


text:
    No. 12,964.
    State of Louisiana vs. Henry Harper.
    With no bill of exceptions, assignment of errors or error on the face of therecord. this court has no power to review the sentence for crime.
    C\N APPEAL from the Third Judicial District Court for the Pariste '■' of Lincoln. Barksdale, J.

      M. J. Cunningham, Attorney General, and Chas. B. Roberts, District-Attorney, for Plaintiff and Appellee.

      W. A. Vanhook and J. D. Barksdale for Defendant and Appellant.
    Submitted on briefs November 26, 1898.
    Opinion handed down December 5, 1898.
   The opinion of the court was delivered by

Miller, J.

The accused appeals from the sentence for manslaughter.

The record contains no bill of exceptions nor assignment of errors. It shows a rule for a new trial substantially on the grounds of testimony alleged to have been discovered since the trial. If we could entertain this rule without any bill of exceptions to the refusal of. the lower court to grant a new trial, we would be confronted with the fact that no diligence had been exhibited to obtain the testimony at the trial. This court will give consideration to the refusal of the-lower court to give a new trial when presented on a bill of exception exhibiting the grounds on which the lower court acted, but we have-no such basis in this case.

There is an earnest appeal by counsel for the accused based on the-poverty of the accused in jail for a length of time before his trial, with neither money or friends to aid him, and in that condition called up for trial with no adequate preparation to meet the issue. The counsel who appear for him in this court were assigned to the accused by the lower court. They came to his defence with all the disadvantages arising from possessing no knowledge of the facts of the case, except that they could acquire when appointed. No witness was put on the stand by the defence. After the trial and conviction, counsel learned for the first time of facts put before us in affidavits attached to the rule for the new trial. We have gone over these affidavits in view of the peculiar circumstances of the case .and the insistence of counsel that we can act on the refusal of the lower court of the new trial, though the ruling was not the subject •of any bill of exceptions. There is the frank avowal by counsel that it was their inadvertence that no bill of exceptions was taken, and it is urged that the poor and friendless accused should not suffer for the oversight. We can not depart from the law that utterly excludes this court from taking cognizance of questions of guilt or innocence of parties charged with crime. But in parting with the case we are prompted to express our appreciation that the appeal to us would deserve the serious attention of the Board of Pardons, if the affidavits attached to the rule for new trial exhibit the true state of the case never presented to the jury for ■ reasons assigned by counsel who prosecute this appeal in the sincere desire to secure relief for- one accused of the most serious offence known to the law, but unfortunately not afforded that full defence the law enforces.

It it ordered, adjudged and decreed that this appeal be dismissed.


text:
    No. 12,771.
    J. H. Hinrichs vs. The City of New Orleans.
    While the taking o£ part of the property leased for'a purpose of public utility gives the lessee no action in damages against the lessor, he not being in fault, the lessee is entitled to a diminution of rent. Civil Code, Art. 2697.
    When the city of New Orleans becomes a lessor, it is subjected to the same obligations imposed by law on those who enter into contracts of lease, hence the lessee from the city of the revenues of the public markets deprived of part of the revenues, because a portion of the space on which the stalls in the market are erected is taken for a public necessity — /, e., the widening of a street, the city must allow the lessee a diminution of rent.
    The lessee entitled to a diminution of rent does not lose his right, because under the menace of dispossession under the extra-judicial power claimed by the lessor under the contract, the lessee pays under protest rent becoming due after the right to the diminution accrues.
    The lessee can urge his demand for diminution of rent in a separate suit, or by reconvention, if sued on the rent notes. C. P.,' Arts. 374, 377.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Farrar, Jonas, Kruttsehnitt & Gurley and J. V. Guillotte for Plaintiff and Appellant.

      Samuel L. Gilmore, City Attorney, and W. B. Sommerville, Assistant City Attorney, for Defendant and Appellee.
    Argued and submitted May 20, 1898.
    Opinion handed down June 30, 1898.
    Rehearing refused December 5, 1898.
   The opinion of the court was delivered by

Miller, J.

This is an appeal from the judgment against the plaintiff on his demand for a diminution of the rent stipulated by him to be paid for the lease of the public markets of this city and for the deduction of amount claimed by him from the amount of the rent note last maturing and in the hands of the city when plaintiff sued.

In April, 1893, the city leased to the plaintiff for three years the public markets, or rather the revenues of the markets, for the price of one hundred and ninety thousand two hundred dollars, one thirty-sixth part paid on the signing of the contract and the remainder in thirty-five equal instalments, represented by chat number of the lessee’s promissory notes, payable on the 15th of each month of the three years term of the lease. The lessee entered into possession, made the cash payment, furnished the notes,, and paid all except that last maturing, in April, 1896. The city in November, 1893, found it necessary to widen one of the adjoining streets; in doing this it encroached on the space occupied by three of the markets, plaintiff alleges, thereby depriving him for the unexpired term of his lease of sixty-four stalls then rented by the vendors of commodities brought to the market for sale and from which stalls the plaintiff derived, under his contract, the customary market dues. The petition claims that this taking of a part of the market for a public purpose, thereby causing the loss to plaintiff of the revenues of sixty-four of the stalls, entitles him to a diminution of the rent stipulated to be paid under his lease of the market revenues, and for that diminution, fixed by the petition at ten thousand seven hundred and thirty-six dollars and thirty-four cents, he claims judgment and the further decree that this sum be deducted from the amount of the last rent furnished by him and maturing in March, 1896.

The city excepted that the petition disclosed no cause of action, on the grounds that no act of the lessor gives rise to an action for diminution of rent, nor can such action be maintained after rent is paid; that the contract made part of plaintiff’s petition prohibits stalls on the sidewalks, and the petition shows that the sixty-four stalls were on the sidewalk; that in the contract the plaintiff surrendered and waived any right of set-off or compensation based on any claims or demands he might have or thereafter might accrue to him against the city, this stipulation referring to his rent notes; and that the injury arising from the widening of a street was damnum absque injuria.

Our law provides that if the thing leased be destroyed by a fortuitous event or is taken for a purpose of public utility, the lessee may demand either a diminution of the rent or the revocation of the lease, but in either case the lessee is denied any claim for damages. Civil Code, Art. 2697. The article withdraws the contract of lease from the operation of any rule that might be supposed to extend the responsibility of the lessor for damages, when the failure of the lessor to fulfil his contract is due to to the expropriation of the thing leased or fortuitous event. But the Code distinguishes between damages and diminution of the price. It refuses the one, but gives the other, i. e., the diminution of the price. It would be contrary to reason that the lessee should continue liable for rent when the thing leased has perished by a fortuitous event, or the equivalent result is produced by the taking of the thing leased for the public necessity, subject to which all property is held. We understand in this case that, recognizing the law, the plaintiff makes no claim for damages, but claims the diminution of the rent. This Art. 2697 of our Code does not seem to need any .aid from the French authorities. We have given attention to those cited by the defendant. They affirm that damages are not allowed the lessee against the lessor, when he is not in fault and the thing leased has perished, or in whole or in part is taken for the public necessity; and the authorities equally affirm tha„ diminution of the rent is due the lessee when the fortuitous event or expropriation has deprived him of the possession of the leased premises. The defendant’s exception is on the theory that the suit is for damages when the law gives none, unless the lessee is in fault, or if the Suit is viewed as one for diminution of rent the law gives no such remedy for any act of the lessor. In determining the character of the plaintiff’s suit we must look to the substance of'his demand, and not the mere form of expression inthe petition. ’ The allegation that the city was in fault for destroying the stalls in the market is accom-' panied with the averment substantially that the street was widened because of the public necessity — i. e., the taking of. the thing leased lor the purpose of public utility. We view the suit as one for diminution of rent for the cause specified in. the Code.

In our opinion another ground of defence that these stalls were prohibited on the sidewalk can not be maintained. The stalls were ■under the roof of the market, had stood there for years, and were deemed a part of tbe' markets. In the contemplation of both parties it is our conclusion the revenues to be derived from stalls under the .roof passed to the lessee.

■ In our appreciation the stipulation that the lessee waived the right to urge offsets or demands in compensation against the rent notes must be restricted to demands reasonably.to be presumed intended by the parties. The expropriation of the markets was surely not anticipated. If the stipulation under consideration could be deemed to waive the lessee’s demand for relief in a case like this, the consequence would be to deny him when sued the right to urge as a defence that the thing leased, for the enjoyment of which he gave the notes, had perished, or had been expropriated,' the day .after, it might be, the lease was' signed. The argument that gives' that effect to the stipulation as to the demands'or offsets waived, it .seems to us, must be deemed fallacious. We can not hold that bó-eause plaintiff waived the right to urge offsets or demands or com■pensation against the notes, that therefore he can not claim the diminution of rent the law aceords him when the thing leased'in part ■has been taken for a purpose of public utility.

■ Again the exception affirms that the plaintiff has lost all claim to The diminution for the eviction from the stalls by'continuing after that event to pay rent. Under the contract any failure to pay the •rent at the stipulated periods, whatever the cause, subjected the lessee to the extra-judicial dispossession of the leased premises by the ■city. It is in proof the plaintiff sought an injunction to protect himself from the encroachment on the stalls by the widening- of the street, but pending, the preliminary rule for the issue-óf the writ'-the city removed the stalls. If after this resistance to that which he-conceived to be the invasion of his rights, the plaintiff continued to pay always under protest, at least it can not be said he acquired in that invasion by voluntary payments. .In this connection our attention has been directed to the line of authority that distinguishes-the voluntary payment from that brought about by compulsion about to be applied with serious injury to the party who pays to avoid such consequences. If the plaintiff had a just cause for a diminution of his-rent, the insistence of the city of full payment is to be viewed as an illegal demand accompanied by the menace implied or express of' that coercion given the city by the contract. The general proposition that payment under coercion from illegal demand will not prevent recovery of the money so paid, is, we think, too well settled to need discussion. In other phases involving'that principle our courts have-affirmed that acts done under coercion do not involve the surrender of rights supposed to be affected by such acts, and in the text-books and decisions the principle is affirmed. Verges vs. Gonzales, 38 An. 412; Jackson vs. Michie & Murdock, 33 An. 723; Factors and Traders Insurance Company vs. Harbor Protection Company, 37 An. 233; Cuny vs. Dudley, 6 Rob. 77; Taylor vs. Bowker, 111 U. S. 28. We do not think that any acquiescence in the removal of the stalls can be imputed to plaintiff on the ground of voluntary payment of the rent.

The argument for the defendant insists that when the defendant was deprived of the stalls he was required to choose between the revocation of the lease or diminution of 'the rent, and by continuing to pay rent he waived all right to diminution. We infer by this this is meant that he should at once have sued for the diminution. If the plaintiff became entitled to a diminution, it seems to us he might well urge it as a defence when sued upon the notes. In a case in which the lessee resisted payment on the rent notes on the ground of the tortious act of the lessor in dispossessing the defendant of the premises, the court held he could use that as a shield that he might have employed as a weapon. The Orleans Theatre Insurance Company vs. Lafferanderie, 12 Rob. 472. In that case, it is-true, there had been no payment of rent after the tenant’s dispossession, but unless constrained by authority, we do not perceive the basis on which we can hold the right to the diminution was lost, be - cause the defendant did not once sue for the diminution. The French authorities to which defendant refers affirm the lessee must claim the diminution. “ Si la chose loué ne périt qu’en partie, le preneur peut réclamer une diminution de prix,” 3 Moulon, p. 294. To the same effect, we think, are the authorities from other authors cited in defendant’s brief. That the lessee should make his election to claim the diminution when he proposes to remain, and not demand the revocation of the lease, we can appreciate. That requirement was fulfilled. The lessee made the election, claimed the diminution and renewed it in effect on every maturity of the rent notes. The defendant refused to allow the diminution and thus each party stood on his legal rights. If the removal of the sheds entitled the plaintiff to the diminution of the rent, it seems to us he did not lose his right merely because he did not at once make it the basis of an action against the lessor. The plaintiff owed when the eviction occurred a far greater amount than the diminution he claims. He defers his demand until the last rent is about maturing. He might have asserted his demand by way of reconvention if suit had been brought on his rent notes. But if no such suit is brought, or if brought the defendant does not choose to reconvene, he may bring his independent suit. C. P., Arts. 374, 375, 376. In our opinion, plaintiff is not precluded from his present demand either by paying the rent, or by acquiescence in the removal of the stalls, and that he can avail by this suit of the defence he could have urged if sued on the note he had reconvened. If entitled to the diminution, the adequate relief is to diminish to the extent of his demand the rent claimed on his last note. That is the relief he seeks.

The defendant urges that the stalls having been removed beeanse of the widening of the street, a public necessity, the plaintiff’s loss, if any, is damnum absque injuria. In our view, when the city enters into a contract of lease it incurs precisely the obligations that would be imposed on an individual. On a line somewhat similar, the United States, with respect to its contracts, is held to derive no advantage from its sovereignty when the courts are callsd on to construe or enforce rights arising out of such contracts. The law when this lease was made gave the lessee the right to a diminution of the rent, if the thing was taken for a purpose of public utility, and to that obligation the defendant, as any other lessor, is subjected.

We are not enabled to adjust the diminution to which the plaintiff is entitled on any basis the record exhibits. The rents which plaintiff contends lie would have realized, if not dispossessed of the stalls, does not, in our view, fix the diminution of the rent to which the law entitles him. Our- judgment is limited to affirming his right of action.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be reversed and avoided, and it is now ordered, adjudged and decreed that, affirming plaintiff’s right of action and that the defendant’s exception be overruled, it is ordered, adjudged and decreed that this cause be remanded to the lower court to fix the diminution of rent to which plaintiff is entitled, to be deducted from the last maturing rent note furnished for thé rent, and that defendant pay costs.

Nicholls, C. J., and Watkins, J., dissent.


author: Blanchard, J.

text:
    No. 12,539.
    Succession of Mrs. C. M. Rogge, by Previous Marriage Widow of Francois Amare. Wm. Rogge vs. P. F. Nouvet, Executor, et al.
    1. A claim long pending against an alleged debtor, not presented nor prosecuted during her lifetime and only sought to be enforced after her death, is looked upon as stale, not regarded with favor, and the evidence in support thereof must be entirely conclusive and satisfactory.
    2. The presumption that property purchased during marriage in the name Of the wife pertains to the community may be rebutted by proof of the origin, existence and investment of paraphernal funds administered by her.

    3. The spouse dying rich, possessed of wealth which had been the common enjoyment of the conjugal pair, must leave the other in necessitous circumstances to entitle the latter to the marital portion. Long separation of the husband from the wife, under the facts of this case, preclude his recovery.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      ■ Dart & Kernan and Benjamin Bice Forman for Plaintiff, Appellant.

      ■ J. L. Peytavin, W. J. Waguespaolc, Chas. J. Théard and J. Numa Augustin for Defendants, Appellees.

      Argued and submitted February 21, 1898.
    Opinion handed down June 13, 1898.
    Rehearing refused June 29, 1898.
   The opinion of the court was delivered by

Blanchard, J.

William Rogge and Christina Amare were married in New Orleans in September 1886.

He was a widower and resided in Louisiana; she a widow residing in Mississippi.

He owned some property at the time of the marriage, .but was hopelessly involved in debt and subsequently lost everything.

She was well-to-do, in fact rich for one in her station in life.

Her- property consisted of real estate, stock, securities and money. It was under her exclusive administration and continued to be after her marriage to Rogge.

She had no children at the time of her last marriage and none as the result of that marriage.

Rogge had two daughters by his first marriage, one of whom was herself married when the father wedded the second time, and the other was well grown.

Mr. and Mrs. Rogge, immediately following their marriage, went to reside at Biloxi, Miss., where the wife had a home in which she had lived for many years. Subsequently the younger daughter of Mr. Rogge by his former marriage was brought to Biloxi by the father to the home of the step-mother.

The marriage was an ill-assorted one. The couple did not get along well together. Disagreements arose and discord developed.

The husband, on one of his trips back to Louisiana, met with an accident from a railway train by which he lost an arm. This, with the increasing embarrassment of his affairs, seems to have intensified the situation.

Matters grew worse in the conjugal home in Mississippi, until after awhile, the husband returned to Louisiana for good.

There was a virtual separation. The parties ceased to live together.

In January 1889, the wife brought suit for divorce, charging cruel treatment, violence and failure to support. This action was filed in the Chancery Court of'Harrison County, Mississippi, where she resided. She averred the husband to be a non-resident of Mississippi. He was cited by publication under the Mississippi statute in such cases. In August 1889, he filed an answer to this proceeding, contesting the same and praying for judgment for an annual allowance out of the wife’s estate for his support and maintenance, averring his poor circumstances and his incapacity for physical labor on account of the loss of bis right arm.

The wife failed in this suit. Her bill was dismissed August 16, 1889, because of failure to establish the allegations thereof. Nothing was allowed the husband.

In June 1892, three years later, the wife brought a second action for divorce in the Chancery Court of Mississippi. She averred her continued residence in Mississippi and her husband’s non-residence. The grounds set up were substantially the same as those alleged in the first bill, and, in addition, she charged wilful desertion and assault and battery. The citation was by publication — the wife deposing that her husband was a resident of Louisiana, but that his postoffice address was unknown to her.

The husband did not appear and no answer was filed on his behalf.

In August 1893, more than a year after the filing of the bill, a decree of divorce in favor of the wife was handed down.

In July 1895, Mrs. Rogge died at her home in Mississippi.

Her succession was opened in the Chancery Court of Harrison County, Mississippi, a paper was presented as her last will and testament, it was admitted to probate, and P. E. Nouvet qualified thereunder as testamentary executor, he having been named as such in the will.

This will was dated New Orleans, December 31, 1889, and was executed a few months after her failure to secure the first divorce applied for.

It was signed by her in the presence of two witnesses. It does not purport to be what is known in the Louisiana law, as the olo - graphic will, nor is it in the proper form of the nuncupative will by public or private act as recognized by the law of this State. She, however, averred herself in the will to be a resident of Mississippi, and it was there presented for, and admitted to, probate. Its validity as a will has not been contested either in the courts of Mississippi or in this State, and Mr. Nouvet has been recognized'as executor by the courts here.

The will instituted the sisters of the testatrix and- the relatives in France of her deceased husband, Francois Amare, her residuary legatees, first bequeathing a few small special legacies to other persons, and leaving to her husband, Wm. Rogge, one dollar.

In March, 1896, this suit was brought by Rogge against the executor and the residuary legatees.

He avers that he is a creditor of the succession of Mrs. Rogge, deceased, in the sum of five thousand dollars for moneys advanced and loaned her, four thousand dollars of it on the 14th of September 1886, a week before his marriage to her, and the other one thousand dollars on or about October 1, 1886, a few days after his marriage.

He asks judgment for this sum.

He next sets forth that the property shown on the inventory of the succession, as opened in Louisiana, is community property, and he asks to be adjudged entitled to one-half thereof, and for partition and settlement of the community.

Lastly, he alleges that he is in necessitous circumstances, that his wife died rich, and that if for any reason he be denied recognition as partner in community, then, in the alternative, he prays to be decreed entitled to the marital fourth of the estate.

The executor and institued heirs file answers alleging that the conr jugal residence of this married couple was established in Mississippi immediately following the marriage, in the home where the wife had previously resided for thirty years; that he was guilty of cruel treatment and violence toward her and finally of abandonment; that on these grounds, which are averred to be sufficient under the laws of Mississippi, she recovered a decree of divorce against him after due and legal proceedings; and that thereafter he ceased to be her husband.

They deny that the plaintiff ever loaned any money to the deceased, and deny that any of the assets or property of the succession appearing on the inventory belong to the community alleged to have existed between plaintiff and the deceased, and deny that any community ever existed.

They specially represent that all the effects and assets of the estate were the separate, paraphernal property of the deceased, acquired with and by her separate funds always under her sole and exclusive administration.

Plaintiff’s petition had referred to the decree of divorce, denouncing it as null and void, because of want of citation or legal process, hut there had been no prayer for relief as against it.

The parties went to trial on the issues as made up and during the-progress of the trial plaintiff presented a supplemental petition-in which he set forth that it was ten thousand dollars instead of five-thousand that he had loaned his wife just prior to their marriage— naming the same day, September 14, 1886, as that on which he had let her have the second five thousand dollars. In this petition he elaborated his claims, as surviving spouse, in the community and averred fuller grounds for bis contention that the Mississippi decree of divorce was a nullity.

The filing of this amended petition was resisted on the grounds (1) that it came too late; (2) that it changed the substance of the original demand in that it claimed judgment for assets (alleged to belong to the community) which were within the jurisdiction of the court in Mississippi where the primary succession had been opened, the mortuary proceedings taken in Louisiana being ancillary; and (3) that the court here had no jurisdiction over assets within the jurisdiction of the Mississippi court and under administration there.

These objections to the reception of the supplemental petition were by consent referred to the merits, but not to be considered waived.

- Still later, when the trial of the case was drawing to a close, a second supplemental petition was presented. Its purpose was to attack as fraudulent the decree of divorce granted by the Mississippi court. The prayer was for judgment declaring the divorce to have been fraudulently obtained and without force or effect as against the plaintiff herein.

The filing of this amendment was resisted on the ground that it came too late and because it changed the substance of the original issue.

The court refused the filing and piaintiff expected, attaching the paper to his bill.

There was judgment in favor of defendants rejecting in toto the demands of plaintiff, and he prosecutes this appeal.

The question of practice raised in regard to whether or not plaintiff could, after the trial begun, amend his pleadings, as was sought to be done by the presentation of "his first amended petition claiming ten thousand instead of five thousand dollars, need not be passed upon.

The evidence entirely fails to convince us that plaintiff at any time loaned Mrs. Amare, his intended wife, either five thousand dollars as first claimed, or ten thousand dollars, as subsequently claimed, or any other sum of money.

If it were ten thousand dollars he had loaned her on September-14, 1886, as he, later, averred, it is not easy to understand how he or-his counsel could have made the mistake of setting forth in their-first .petition it was only one-half of that sum he had advanced heron that day.

Again, it is altogether improbable that, living away from his wife, with his circumstances becoming poorer and poorer, until after a while he was bereft of everything to meet the demands of his creditors, with no property, living in poverty, unable to labor because of his maimed condition, he should have permitted seven or eight years from the time he ceased to live with his wife until her death, to elapse without taking steps, -judicially or extra-judicially, to recover so large a sum as ten thousand dollars due him for money he had loaned her!

The wife was rich, entirely able to refund the money if she owed it; he was poor and in necessitous circumstances, badly needing the amount.

And under the law of Mississippi, where the wife lived, and whose jurisdiction he himself had accepted, it would have been an easy matter to recover the alleged loan, because there the husband and. wife may sue one another. Mississippi Code of 1892, Sec. 2290..

There is no explanation of this long silence.

It will not do to say that he expected her in her will to make restitution.

The relations between the couple did not justify any hope whatever on his part that she would remember him in her will. According to his statement she had forced him to leave her home, she had grown tired of him, she had no longer any use for him. The evidence discloses that she distrusted him, would not suffer him to have anything to do with her affairs, accused him of pilfering her money, of being a drunkard, of maltreating and beating her, that she was afraid of him, feared for her life, etc. And finally she severed all connection with him whatever by divorce proceedings.

Under circumstances like these he would indeed be an unreasonably sanguine man who hoped to be the beneficiary of testamentary bequests from the woman.

The money that was loaned David & Co. on September 14, 1886, was, we are satisfied, her separate funds. It was handed to them by her and the note was taken in her name. So, too, the funds deposited that day and subsequently in bank in her name (which amounts, with that loaned David & Co., went to make up the ten thousand dollars which he claims he loaned her) were her separate property, and his connection with the same, always in her presence, was that of mere service rendered in assisting her, making himself useful and accommodating to the woman he was on the eve of making his wife. At the time he claims to have loaned her the ten thousand dollars he was largely indebted to David & Co. and to other

■ parties, was in fact insolvent, his property was mortgaged, he was in arrears for interest, etc., and it is taxing the credulity too greatly to be asked to believe that he got together and handed her, a rich woman in her own right, ten thousand dollars as an ante-nuptial loan.

We entirely agree with the conclusion of the trial judge rejecting this demand. See Bodenheimer vs. Executors of Bodenheimer, 35th La. Ann. 1005; Wood vs. Egan, 39th La. Ann. 684.

The Community Claim.

Plaintiff’s claim to one-half of the assets as shown on the inventory, based on the averment that the same belonged to the community of acquets and gains, rests on grounds no more secure than did his pretension as to the ante-nuptial loan.

And this is so whether we consider the matrimonial domicil of this couple to have been established and maintained in Louisiana or in Mississippi after the marriage. The proof is satisfactory it was established in Mississippi. Indeed Rogge substantially averred it under oath in his answer filed in. the Chancery Court of Mississippi to his wife’s first bill for divorce.

Nor is it necessary to pass upon the question of the validity or invalidity of the decree of divorce to determine the issue here raised.

If we consider that these parties were never divorced and that ' they remained man and wife, though living apart, down to her death, still plaintiff has no claim for community assets, for the very good reason that there are no community assets and never have ■ been. Everything appearing upon the inventory is, without doubt, the separate, paraphernal property of the wife. It was all acquired with her separate and paraphernal funds, of which she had the sole and exclusive control and administration, and the investments stood in her ante-nuptial name, Mrs. 0. M. Amare. The husband did not even have knowledge of them.

While it is true that property purchased during the marriage, whether in the name of husband or wife, is presumed to belong to the community, it is a presumption which may be rebutted. And the rule is well established that property acquired during the community in the name of the wife may. be shown to be paraphernal in character by proof of the origin, existence and investment of paraphernal funds administered by her separately and apart from her husband. Stauffer, Macready & Co. vs. Morgan, 39 La. Ann. 633; Rouyer vs. Carrol, 47 La. Ann. 768; Miller vs. Handy, Sheriff, 33 La. Ann. 160; Succession of Lewis, 45 La. Ann. 833; C. C. 2407, 2386, 2402.

This husband, from the time of his marriage in 1886 to the death of Mrs. Rogge in 1895, realized no profits from any source. He owned and cultivated for a few years after the marriage a plantation in Iberville Parish, but the proof shows he came out in debt each year, owed his commission merchant ’ large balances, and the place was lost to him by foreclosure of mortgage in May 1891.

He had separated from his wife before that, and after losing the plantation he was more or less dependent upon others for support. He never at any time during the marriage gave his wife a single dollar, and did not contribute anything whatever towards the community, n'or towards the acquisition of the property appearing upon the inventory. ■

During the marriage the wife had no business, or trade, or other means of earning money that could fall into the community, or be invested for its account. Her only source of revenue, from which she supported herself and the family establishment, and from which she derived the funds invested in the effects mentioned on the inventory , was property separate and paraphernal in character, which she owned prior to her marriage and retained the sole administration of after marriage. She was rich in her own right, had abundant resources and ready cash, for which she was constantly seeking investment, and undoubtedly made the investments, for her own account, in her own name and with her own funds, now figuring as assets on the inventory. See Ellis, Syndic, vs. Rush, 5 La. Ann. 116.

The community of acquets and gains resulting from this marriage possessed nothing, earned nothing, invested nothing.

It follows there are no community assets to be divided; no settlement of community affairs to be gone into.

The Claim rob the Marital Fourth.

Denied his claim as creditor of the wife’s estate for ten thousand dollars, and denied his assertion of right to share in property alleged to belong to the community, this husband makes his last stand upon Art. 2382 of the Civil Code, which prescribes that if either the husband or the wife die rich, leaving the survivor in necessitous circumstances, the latter has a right to take out of the Succession of the deceased what is called the marital portion, which is one-fourth part of the succession property where there are no children.

But even from it must he be dislodged, for under the inexorable facts of the case his pretension can not find there, either, any sufficient breastwork of defence and protection.

The principle upon which the right of the necessitous surviving spouse to take the marital portion, the reasons, the cause, the motive of the law in granting it, is founded upon the consideration, or policy, that neither of the married persons, who have lived together in the common enjoyment of wealth and of the position which it gives, shall be suddenly reduced to want, and, accordingly, a part of the estate of the opulent deceased is appropriated to relieve the survivor, who, in the absence of it, would be reduced to poverty. Succession of Fortier, 3 La. Ann. 105; Pickens vs. Gillam, 43 La. Ann. 350.

But as to his or her right to take the marital fourth, the surviving spouse is not an heir and the portion entitled to is not an inheritance. It is, therefore, not a vested right, nor is it a debt; it is a gift, a bounty, bestowed not by the deceased but by the law, when the conditions surrounding the relations of the parties to each other before and at the time of the dissolution of the marriage by the death of one of them, and surrounding the one surviving after the dissolution, meet the requirements of the law. Thus the spouse dying must be rich, or comparatively so; the one surviving, in necessitous circumstances, or comparatively so, with regard to the other.

Again, the one dying rich — possessed of wealth whicnhad been the common enjoyment of the conjugal pair — must leave the other in-necessitous circumstances. If these conditions do not exist the reason, the motive, the purpose of the law fails, and the right to take does not attach. Connor vs. Connor, 10 La. Ann. 451; Succession Justus, 44 La. Ann. 721.

For over eight years this husband and wife had not lived together prior to the death of the wife. He had resided in one State, she in another. They had no relatious with each other of any kind. She had twice brought suit for divorce against him, recovering a decree the last time. For years there had been no common enjoyment of the wealth the wife possessed. She did not die leaving him in necessitous circumstances. Her death did not suddenly snatch him from the enjoyment of riches and reduce him to the condition of penury.

The “leaving” of this couple — the parting between them — had occurred years before the one with riches died.

The husband had gone his way — she hers — long before. He had ceased for nearly a decade to have the enjoyment of either her society or her property or means. Under these circumstances his right to claim the marital fourth cannot be held to exist. Pickens vs. Gillam, 43 La. Ann. 350.

In reaching this conclusion we recognize fully and approve of the principle announced in Gee vs. Thompson, 11 La. Ann. 657. In that case the wife was driven by the conduct of the husband to place herself under the protection of the law. She had sued for and recovered a judgment of separation from bed and board. The court held that by placing herself under the protection of the law she had not put herself in a worse, condition; that the judgment of separation did not dissolve the marriage; that by it the law had, on account of the husband’s bad conduct, excused her from living with him; and that being his wife when he died and legally excused from co-habitation, no fault was attachable to her and she was recognized as entitled to the marital portion.

The husband in the instant case presents no such state of facts as did the wife in-that case.

Judgment affirmed.

Rehearing refused June 29, 1898.