author: Nicholls, O. J.

text:
    No. 13,408.
    The City of New Orleans vs. Nels A. Collins.
    Syllabus.
    1. A demurrer attacking the constitutionality of an ordinance as a whole, is properly overruled where any part of the ordinance is constitutional.
    2. The ordinance of the city of New Orleans making it unlawful for any person to engage in the operation of a slot machine, either as keeper, or owner, or player thereof, where the prize or reward given or to be given is money, merchandise, or checks redeemable in money, or an order to any third person for money or merchandise, and punishing the violator of the ordinance by fine or imprisonment, or both, is not in excess of the powers delegated to the city of New Orleans by the General Assembly, nor is it inconsistent with or repugnant to the fourth section of Act No. 57 of 189S.
    3. The fourth section of Act 57 of 1898, does not authorize or legalize the operation of such machines in any manner or form, or for any purpose.
    It leaves the question of the legality of the operation of such machines where the prizes are stock in trade in licensed establishments to be tested and determined by the courts.
    4. If the subject matter of an ordinance falls within the scope of the powers delegated to the municipality, it is not necessary to give validity to the exercise of the power by the city, that the State itself should have acted upon the identical matter which is covered by the ordinance.
    5. If the general powers delegated to a city cover several distinct subjects, an ordinance legally referable to any one of them for its source will stand.
    6. An authority to the city to imprison certain designated classes of persons, carries with it a delegated power to pass the necessary prohibitory and penal ordinances on the subject matter, for the violation of which the imprisonment is to follow.
    7. The use of a slot machine, where an element of chance determines whether the prizes are to be given, brings such operation under the definition of a lottery, whether the prizes given are stock in trade of licensed establishments or not.
    The ordinance attacked is legal.
    APPEAL from the First Recorder’s Court, City of New Orleans— Finnegan, J.

      James J. McLaughlin, Assistant City Attorney, and Samuel L. Gilmore, City Attorney, for Plaintiff, Appellee.

      E. Howard McCalel and Arthur B. Leopold for Defendant, Appellant.
   Statement op the Case.

The opinion of the court was delivered by

Nicholls, O. J.

Defendant is appellant from a judgment condemning him to pay a fine of twenty-five dollars or be imprisoned twenty-five days, in tire Parish Prison, on a complaint that he had violated Ordinance No. 15,829, 0. S., relative to slot machines.

The affidavit upon which the judgment was based averred that on the 4th day of January, 1900, at about 1:45 o’clock p. m., on Gravier street, between-and Earonne streets in this district and city, one Neis A. Collins, did then and there violate Ordinance 15,829 relative to operating- a slot machine at his place of business, corner of Gravier and Earonne.

All against the peace and dignity of the city of New Orleans.

The ordinance referred to is as follows:

“Ee it ordained by the City Council of the city of New Orleans, that, from and after the promulgation of this ordinance, it shall be unlawful for any person, persons, or firm, to engage in the operation of any slot machine either as keeper or owner or player thereof, or any other instrument or device where the prize or reward given or to be given is money, merchandise, or checks redeemable in money, or an order to any third person for money or merchandize.

“Be it further ordained, that whosoever shall violate any of the provisions of this ordinance shall upon conviction before the Recorder in whose jurisdiction the offense is committed, be fined in the sum not less than $5.00 nor more than $25.00, and in default of payment of said fine shall suffer imprisonment for not more than thirty days or shall suffer both fine and imprisonment at the discretion of the Recorder”.

Defendant filed the following demurrer to the complaint:

“1. That Ordinance No. 15,829, O. S., adopted by the city of New Orleans, which appearer is charged with having violated, is illegal, unreasonable, oppressive, null and void.

“2. That the Act of the General Assembly of the 'State of Louisiana, No. 45 of 1898, Known as the New City Charter, did not authorize the Common Council of the city of New Orleans to enact the said Ordinance No. 15,829, O. S., which this appearer is charged to have violated, and said ordinance is therefore illegal and in excess of the powers conferred upon the said Council by the General Assembly of the State of Louisiana.

“3. That said ordinance, No. 15,829, C. S., is inconsistent .with and violative of Act No. 57 approved July 8th, 1898, of the Acts of the General Assembly of the State of Louisiana, entitled — ‘An Act to prohibit gambling with slot machines for money prizes and to prohibit minors from playing' same for either stock or money, and. providing penalties therefor’, and said ordinance is inconsistent with and violative of the policy of the State of Louisiana as enunciated and declared in said act.

“4. That said ordinance, No. 15,829, C. S., is repugnant to Section 4 of Act No. 57, approved July 8, 1898, a general law of the State of Louisiana, and is therefore ipso facto void.

“5. That by Section 4 of said Act No. 57 of 1898, the use of slot machines where prizes are stock in trade in regular licensed establishments and under the restrictions as to minors imposed by the said statute, is not prohibited, but on the contrary is specially permitted and authorized.

“6. That the said ordinance of the city of New Orleans, No. 15,-829, C. S., makes the use of said slot machines where prizes are stock in trade in regular licensed establishments penal, and inflicts a punishment for the use thereof in the manner and form permitted by the aforesaid statute of the State of Louisiana.

‘‘7. That the city of New Orleans, the creature of the 'State of Louisiana, is without right, power or authority to impose a penalty or inflict punishment for an act authorized by the law of the State of Louisiana, its creator.

“8. That by the enactment of said ordinance, No. 15,829, O. S., the city of New Orleans attempts to repeal a general statute of the State of Louisiana, in full force and effect at the time of the adoption of said illegal ordinance. That the city of New Orleans through its Common Council can not disregard or set aside by ordinánce a valid subsisting law of the-State.

“9. That the city of New Orleans is without power under its charter to pass the said Ordinance No. 15,829, C. S., repealing and nullifying a statute passed by the General Assembly of the State, Act No. 57 of 1898, and said ordinance is therefore ultra vires and void.

“10. That said ordinance violates the Constitution of the United States, especially the 14th amendment thereof, in that it denies to this defendant and accused the equal protection of the laws by prohibiting the use of slot machines where the prizes are stock in trade, in regular licensed establishments and under the restrictions contained in Act No. 67, approved July 8th, 1898, in the city of New Orleans, and making said use a penal offense, whereas said machines may be used with impunity in regular licensed establishments where the prizes are stock in trade in other parishes and cities of this State. That the discrimination, inequality and ununiformity thus made against those residing and carrying on business in the city of New Orleans, violates the provisions of the Constitution of the United States and of this State.”

The demurrer having been overruled, the Recorder after hearing evidence in the case rendered the judgment from which defendant appealed.

Act No. 57 of 1898, to which reference is made in the pleadings, is an Act entitled — “An Act to prohibit gambling with slot machines for money prizes and to prohibit minors from playing same for either stock or money, and providing penalties therefor.”

By its first section it was enacted:

“That whoever shall engage in gambling in slot machines with money or representatives of money, where the prize or return is to be money, or representatives of money or cheeks which are to be redeemed for money, shall upon conviction thereof, be fined in the sum of not less than $25.00 nor more than $200.00, or be imprisoned for not less than thirty days, nor more than ninety days, or both, at the discretion of the Court.

“Sec. 2. Be it further enacted, etc., That any owner, lessee, tenant, or proprietor of any premises or building, who shall have or permit in or about same, or connected therewith, any slpt machine operated in violation of 'Section 1 of this Act, shall be, uppn conviction thereof,' fined not less than $25.00, or more than $200.00, pr be imprisoned for not less than thirty days, nor more than ninety dqys, or both, at the’ discretion of the court.

“Sec. 3. Be it further enacted, etc., That any owner or proprietor of any slot machine or persons operating same, who shall permit any minor to play same either for money or stock or merchandise, shall be guilty of a misdemeanor and shall upon conviction thereof, be fined not less than twenty-five dollars nor more than one hundred, or suffer imprisonment not less than thirty days nor more than ninety days.

“See. 4. Be it further enacted, etc., That nothing in this Act shall be construed as prohibiting the use of said machines, where the prizes are stock in trade, in regular licensed establishments and under the foregoing' restrictions as to minors”.

It will be seen that defendant’s exception or demurrer is directed exclusively against the ordinance which he is charged with having violated, and that no objection is made either to the affidavit embodying the charge or to the proceedings in the Recorder’s Court, and that the demurrer is levelled not at a part of the ordinance but at the whole of it.

If any portion of the ordinance is legal and constitutional, the attack made against it as a whole must fail. (People’s State Bank vs. St. Landry State Bank, 50 Annual, 528.)

As the General Assembly by Act No. 57 of 1898, prohibited gambling with slot machines for money prizes, and constituted such an act a misdemeanor, it can not be successfully claimed that to the extent at least that the ordinance attacked prohibits the very same act, it is illegal or beyond the powers delegated to the city of New Orleans.

In State vs. Fourcade, 45 Annual, 718, this court held that the Legislature might delegate to municipal corporations power to adopt and enforce ordinances on matters of special local importance, though general statutes exist relating to the same subject. That the same act might constitute a crime against the public law of the State, and also a petty offense against a municipal regulation.

We do not understand appellant to contest the correctness of that proposition and therefore, in so far as he may have been guilty of gambling with a slot machine for a money prize, that he could not have been legally fined and in default of payment, imprisoned under the city’s ordinances.

The affidavit on which the proceedings in the Recorder’s Court were grounded, is exceedingly objectionable, as we stated affidavits of a similar kind to be in City vs. Kientz, recently decided, 52 Ann., p. —, for we are forced to look to the evidence instead of to the complaint to see what particular branch of the ordinance the accused is charged with having violated.

The evidence shows that the defendant is engaged in the cigar business at the corner of Baronne street and Gravier street, in New Orleans, having a license to carry on that business. He had one of these slot machines which was'there operated with his consent and on his account.

Being on the stand as a witness, be was asked by bis counsel, “What prizes do you give for the use of those slot machines?” ITis answer was, cigars, part of bis stock in trade.

Counsel of the defendant in their brief say: “Our contention is, that the State of Louisiana having' specially authorized and permitted the use of slot machines in regular licensed establishments, for stock in trade, the city of New Orleans was without power to enact the ordinance under discussion, for by the very terms of the ordinance, an offense or misdemeanor is created, and the city can not denominate ¿ certain act as a misdemeanor, when the State itself has never made such act criminal and indictable, but on the contrary has specially authorized and sanctioned it.”

“ In State vs. McNally, 48 Annual, 1450, the Supreme Court held that the ’State alone had the authority to create an indictable offense. The city in enacting the ordinance had no power under the legislative grant to it, to create the offense of using slot machines for disposing of stock in trade, an indictable one, and in the absence of such power, its acts are ultra vires, and the Recorder can not punish for infraction of an ordinance ipso facto null and void.”

As was said in the case of State vs. Itzcovitch, 49 Annual, 370, “that part of the ordinance which makes the violation of any of its isrovisions a misdemeanor, is illegal, in that it makes or creates an act a crime which the Legislature has not seen fit to do so.

“ More than this the Legislature by statute, in clear unambiguous terms, encourages the very act which the city is now trying to prohibit and punish. This court has held in State vs. Von Sachs, 45 Annual, 1417, that the City Council can exercise only such power as legislative authority confers upon it. ‘It can prohibit no business authorized by the Legislature * * * It can not in authorizing the business to be carried on, impose obligations not authorized by the Legislature’.

“ It is conceded that the business of using slot machines in connection with the selling and. disposing of one’s stock in trade, in regular licensed establishments, is a legitimate occupation, and if it is permitted to be conducted, it is presumed to be a legitimate occupation; otherwise the Legislature (instead of authorizing it) would have passed necessary laws to suppress it. Then if the business be a legitimate one, having the sanction of the Legislature, the adoption of the ordinance being in excess of the powers conferred upon the city, is null and void.

“ It will be contended, and this in fact is the only plausible contention in favor of the enactment of the ordinance complained of, that Section 4 of Act No. 57 of 1898, is violative of thé Constitution of the State, in that it permits gambling, and therefore said section is unconstitutional, of no validity whatever, and consequently the city of New Orleans has the right to disregard it by enacting the ordinance in question.”

“ To this we answer first, that the Legislature of the State and not the city of New Orleans is the proper interpreter of the Constitution. It is charged with the duty of enacting laws necessary to carry into effect the provisions of the Constitution. In doing so, legislative acts are not to be disregarded or questioned by the city of New Orleans or its Council, who are themselves merely creatures of the State government. The creature has no right to rise in rebellion against its creator, question its authority, disregard its mandates, or nullify its solemn expressions embodied in its legislative acts.”

Opinion.

The city of New Orleans does not call in question the constitutionality of any part of Act No. 57 of 1898, nor contest the authority of the General Assembly to broaden or restrict the extent of the powers delegated to it. It does deny that such powers were attempted to be restricted by the statute in question or that the Legislature attempted therein to authorize and permit gambling by slot machines, whatever might be the manner or form of their use.

Arguing the question of intention, the city urges that no construction could or should be placed upon the statute which would attribute to the General Assembly the purpose of justifying or permitting gambling, thereby violating the Constitution of the State, that some other interpretation must necessarily be placed upon the language which it has used.

Article 188 of the Constitution declares gambling to be a vice and orders the Legislature to pass laws to suppress it, and Article 178 prohibits lotteries or the sale of lottery tickets in the State. If a slot machine used as it has been charged to have been used by the defendant, was in point of fact and law either gambling or a lottery, we are driven by force of the cituation from the idea that the General Assembly intended to give it its sanction, either directly or indirectly.

We would be no more justified in attributing such an intention to the Legislature in enacting the fourth section of Act No. 57 of 1898, than we would have been, in adopting that attempted to be ascribed to it, in' enacting the proviso 'contained in the statute which was before this court in State vs. Olympic Club, 46 Annual, 935, and 41 Annual, 1098.

Any construction of the statute or any portion of it which would lead up to and carry with it, as the result of the construction the justifying or legalizing of any form of lotteries, or of any kind of gambling, would convert a prohibitory, preventive, and repressive statute actually into a permissive one. This court is not warranted in placing the Legislature in any such attitude.

The maxim ajjirmatio unius esi exclusio alterius can not be extended so as to reach any such result. (State vs. Connor, 7 Annual, 379.)

We construe the fourth section of Act No. 57 of 1898 to mean nothing more than that where in the use of slot machines in regularly licensed establishments, the prizes given are part of the stock in trade, it should be left to the courts to determine the question, whether such use would subject the parties so using it to the pains and penalties of the general statutes, prohibiting gambling and lotteries.

We find nothing in.the fourth section of Act No. 57 of 1898 which would have the effect of making the city ordinance illegal, as being inconsistent with or contradictory to any statute of the 'State. The statute did not have the effect of withdrawing from the various municipalities of the State any of the powers delegated to them, pjior to the passage of the same.

It was not dealing with that subject at all. If the ordinance be illegal or unwarranted, its illegality must be sought for from some cause outside of the Act of 1898.

We turn now to an examination of the question whether the Common Council had authority to pass the ordinance whereof the legality is in dispute.

If the subject matter of the ordinance was one falling within the scope of the powers delegated to the municipality, it was not necessary to give validity to the exercise of the power by the city, that the State itself should have acted upon the same identical matter which is covered by the ordinance. 13 Annual, 57.

In McLain’s Criminal Law, Section 63, it is said that “an ordinance to regulate matters which are within the general powers of the city, is not invalid because such matters are also regulated in a different way by statute, if there is no necessary repugnance between the statute and the ordinance.

“Thus the city may be authorized to regulate as a nuisance, things which would not be nuisances under the State statute, although statutory punishment for nuisances is provided for, and may for instance regulate and prohibit the sale of liquors, although its action goes beyond the regulations made by general statute.”

“An ordinance providing a punishment for what is also punishable under State statute, is not therefore necessarily void, and in Section 66 it is said that “the power granted to municipalities usually involves the authority to determine what are nuisances in a city, and to suppress them even though the matters referred to may not be nuisances under the State law, and they may make municipal regulations for the suppression of nuisances, which are also within State control.”

But the city can not under the power to suppress nuisances, make that a nuisance which is not such, in fact. The general power given to cities is broad enough to authorize the prohibition of the sale of lottery tickets, or the sale of adulterated milk, or the operation of a carpet-beating machine, near a residence. (State vs. Dobard, 45 Annual, 1412.)”

In Swigert vs. P., 154 Illinois, 284, it was held that an act (pool selling) falling within the general statutes as to gaming, might be punishable thereunder, although not covered by special statute.

If the general powers delegated to a city, cover several distinct subjects, an ordinance legally referable for its source to any one of them will stand. It is immaterial whether the authority of the city for the passage of this particular ordinance rests upon its general police powers, its power to suppress nuisances, its power to suppress gambling, or to suppress lotteries, if it, (the city’s action) stood justified under any one of these powers.

In Section 64 of McLain’s Criminal Law, it is said that “the power given to a city to suppress and prohibit a class of acts implies a power to inflict punishment therefor”.

A power to imprison men for pursuing certain occupations, or doing certain acts, carries with it a delegated .power to pass the necessary prohibitory penal ordinances on the subject matter, for the violation of which the imprisonment is to follow; thus the 12th clause of Section 15 of Act No. 45 of 1896 (the last charter of the city of New Orleans), delegating to that city the power “to close all gambling houses and. to expel from the city and to imprison all buncoe men, lottery men, common cheats, and swindlers, beggars, and dangerous and suspicious characters”, was a recognition by the General Assembly, that the good order and welfare of the city would call for and require municipal action against such houses and persons, and was a delegation to the city authorities to deal with these subject matters.

A lottery has been defined to. be “a scheme for the distribution of property by chance or lot, among persons who have paid or agreed to pay a valuable consideration for the privilege of participating in such scheme”. The crime of conducting a lottery is similar to that of gaming, and in fact a lottery is a species of gaming. The evil which the law is designed to remedy is much the same, as in gaining, being the excitement of an inordinate desire for gain, leading to an arousing of the baser passions and tending to mendicancy and idleness.

In applying the law the courts have taken this as the evil to be remedied and uncertain, or doubtful terms, have been construed with this object in view * * *. As a rule lottery schemes have no distinct names, as have many of the well-known games, but some schemes or devices having distinct names have been held to be lotteries, such as playing policy, raffles, pools, as on horse races, gift enterprises, and any scheme for the sale of goods or merchandize whereby a prize is given to some buyer, to be determined by lot or chance.

These schemes are so various that it is difficult to cover them even by a general description, but in most of them the chance to secure something of value by lot, usually evidenced by a ticket, is given as an additional inducement to the purchase of goods of a particular description or of a specified value.

There can be no doubt that “the effect of lotteries upon public morals is such as to cause them to come within the power of police regulations of the States” and (we may add) of police regulation of the municipal corporations of the State under delegated police powers. (McLain’s Criminal Law, Sections 1315-1317.)

An examination of the evidence in this case satisfies us that the slot machine and its use as shown in this case to have been made by the defendant, brings the same within the definition of a lottery, and defendant as a “lottery man”, under the views expressed by us in State vs. Boneil, 42 Annual, to which we adhere.

There was an element of chance in the operation of the machine which brought defendant within the grasp of the law and the ordinance. Entertaining tbis view, we need not examine to see whether the action of the Council, in passing the ordinance, would have been warranted under its general police powers of preserving the good order, morals, and welfare of the city; of abating and suppressing nuisances, gambling, gambling games, and gambling houses.

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


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 13,458.
    State ex rel. Henry Rice vs. Hon. Fred. King, Judge of the Civil District Court for the Parish of Orleans.
    Syllabus.
    While the court re-examined the issues and found no ground upon which to' grant a rehearing, it directed attention to the rule that rehearings are not to be granted in this class of cases.
    PPLIOATION for Writ of Prohibition.

      Dinhelspiel & Hart, Bernard McCloshey and Percy 8. Benedict for Relator.
   On Application for Rehearing.

The opinion of the court, on the application for a rehearing, was delivered by

Breaux, J.

The application for a rehearing is presented from the refusal of the Supreme Court to grant a writ of prohibition.

No new points are raised. The Supreme Court made a re-examination of the facts upon which the petition is based and re-considered the issues as presented originally. The court did not find any ground upon which to grant a rehearing; besides, there is a rule of this court under which the court manifests its intention not to grant a rehearing in this class of cases. Henricks vs. Monteleone, 51st Ann., 896.

Rehearing refused.


author: Nicholls, C. J.

text:
    No. 13,357.
    State Ex Relations Joseph Guarneri vs. Emile Rost, Judge Twenty-First Judicial District Court, Parish of St. John the Baptist.
    Syllabus.
    1. A district court has jurisdiction on an appeal to it from a judgment of a justice of the peace to pass upon the nullity of the judgment appealed from when the nullity is apparent on the face of the record where the subject matter of the suit itself falls within the appellate jurisdiction of the district court. (C. r., 609.)
    The mere correctness of the conclusions of that court as to the nullity of the judgment can not be tested in the Supreme Court under its supervisory powers and a writ of certiorari. Certiorari is not a substitute for an appeal. (State ex rel. Breckenridge Lumber Co. vs. Tully, 48th Ann., 1533, and authorities cited.)
    2. where, under a writ of certiorari it is sought to have a judgment of a district court set aside for alleged nullities in the proceedings, there is reason to believe that the minutes of that court as made up are incomplete or erroneous, the Supreme Court will suspend action until the parties shall, by proper proceedings in the district court, have had opportunity to amend or reform the minutes.
    Where the minutes of the district court in the matter of an appeal to that court from a judgment of a justice court in favor of a plaintiff, shows an affirmance of the judgment below, but fails to show that any evidence was taken on the trial of the cause, the judgment of the district court will be set aside bn certiorari.

    PPLIOATION for Writs of Qertiorari and Prohibition

      J. L. Gaudet for Relator.

      Iliddlesion Kenner for Respondent Judge.
   The opinion of the court was delivered by

Nicholls, C. J.

Relator’s application is based upon the ionowing-allegations:

That relator took a suspensive appeal Ito the Twenty-First Judicial District Court, in and for the Parish of St. John the Baptist, from a judgment, for the sum of sixty-four 20-100 dollars, rendered against him by the justice of the peace of 'the Fourth Ward of said parish, in a suit wherein the Barry & Denis Co., Limited, is plaintiff, and relator, the defendant (No. 12 of the Appeal Docket of the said District Court) ; that on appeal, before the District Court, relator filed an assignment of errors averring that the justice of the peace had rendered judgment, in the said suit, against relator, without previously fixing the case for trial, as required by the provisions of Articles 1084-1085 of the Code of Practice; that no legal citation had been issued by said justice of the peace, and the judgment rendered by him was a nullity; that this assignment of errors, having been tried before the judge of the said District Court on the 10th day of November, 1S99, was by him taken under advisement, and on the 22nd day of November, 1899, he rendered judgment thereon, dismissing said assignment of errors, and affirming the judgment of said justice of the peace, without allowing relator an opportunity to be heard by evidence, or otherwise, on the merits of the case and against the protests of relator’s counsel; that it was made apparent to the judge of the District Court, by the record of appeal in the said case, that a summons was issued to relator and served on his wife on the 9th day of October, 1899, to appear before the said justice of the peace, within ten days, to answer the demand of the plaintiff, and judgment was rendered thereon, on the 20th day of October, without said case having been fixed for trial and prior to the expiration of the delay fixed by law within which relator could have filed his answer, as the whole would more fully appear by the transcript of appeal filed before the District Court in said suit.

And relator further averred that the said justice of the peace was incompetent to render any judgment in the said cause:

1st. Because no citation, such as the law requires, had been issued by him (C. P., 1077) ;

2nd. Because no answer was filed, and he should have fixed a day and hour for the hearing of said cause (O. P., 1084-1085; 35th Ann., 1101);

3rd. Because neither the legal delays, nor the time required by law, had expired when he rendered judgment (C. P., 318; 30th Ann., 677); that the district judge was not vested with jurisdiction on appeal from a judgment absolutely null and void on the face of the record, and the further action of the district judge, in proceeding to render judgment on the merits of the case, without hearing any evidence, was an arbitrary abuse of jurisdiction, leaving relator no alternative but the present application for relief.

In view of the premises, relator prays that a writ of certiorari issue, directed to the judge of the Twenty-First Judicial District, in and for the Parish of St. John the Baptist, commanding him to send to this court a certified copy of the transcript of appeal in the suit entitled Berry & Denis Co., Lim.,. vs. Joseph Guarneri, as well as of all the proceedings before him in said suit, to the end that their validity might be ascertained; that, after due proceedings, the judgment rendered by the District Court be annulled and set aside,’and said cause remanded to he proceeded with according to law; that a writ of prohibition.issue to the said judge forbidding him from proceeding any further in the said cause; that said writs of certiorari and prohibition be made peremptory, and your relator finally prays for such further orders and decrees in the premises as the nature of the case may require, and for general, legal and equitable relief.

The district judge sent up the record called for, and for answer to the writ of prohibition and certiorari directed to him, says:

“That on the 31st day of October, a transcript of appeal, from the Fourth Ward, Parish of St. John, in the suit entitled the Berry & Denis Co., Limited, vs. Joseph Guarneri, was filed in his court, and became No. 12 of the Appeal Docket of respondent’s court; that on the 6th day of November, that being the first day of the session, and in accordance with the rules of the court, the said case on appeal was fixed for trial on the 10th day of November, on its merits, there being at that time no exceptions or assignment of error in the transcript of appeal; that on the said 10'th day of November, the said case was taken up without objection, but, just before going to trial, the defendant and appellant filed an assignment of errors, as will appear in the certified copy of the proceedings; after hearing argument on the errors assigned, and the case being submitted, the same was taken under advisement, and on the 22nd day of November respondent rendered his decision, overruling the assignment of errors, and the evidence in the transcript, as offered in the justice’s court, and submitted to the court on appeal, namely, the sworn account, being sufficient to establish the plaintiff’s and appellant’s claim, and as the defendant and appellant offered no evidence in support of any defense on appeal, the judgment of the justice court was, necessarily, affirmed.

In overruling the assignment of errors respondent considered that, under the ruling of the Supreme Court in the case of D’Amico & Sidotti vs. Judge, 46th Ann., 365, no previous entry of default was necessary in the courts of the justice of the peace; and that on the expiration of the delays for answering, plaintiff would have a right to prove up his case and ask for judgment. I't is the duty of the court, if defendant fails to appear, to receive the proofs of plaintiff’s demand and decide the ease (46 Ann., 365). This was exactly what was done in the instant ease, as will appear by the proceedings. That respondent considered, further, that the contention of the defendant and appellant, that the case should have been fixed for a trial notwithstanding the non-appearance of the defendant, was without force, as there was no provision in the Code of Practice requiring such fixing, and that all the articles quoted, as well as the cases referred to, were suits wherein an appearance was made, and that it would be contrary to all rules and customs of courts to fix a case for trial wherein no issue has been joined.

“The second ground alleged by plaintiff for annulment of respondent’s judgment, namely, that respondent proceeded after overruling the assignment of errors to render judgment on the merits, without hearing any evidence, is not well founded. The case was fixed for trial, on the merits, before the assignment of errors was filed, and was taken up and tried, and submitted without any reservation or agreement whereby the court would he informed that the assignment of errors would be alone considered. There is no provision in the Code of Practice, or the rules of the court, allowing, first, a trial on the assignment of errors, and then on the merits, should the former be overruled. Without some special agreement an assignment of errors, filed on the same day and during the trial of an appeal, surely can not be considered separately and apart from the merits. In the absence of errors and evidence, shown by the appellant, it is a well established principle that the judgment appealed from must be affirmed, as the lower court must be presumed to have acted on proper evidnece.

“Respondent considered, under Article 1082, O. P., as amended by Act 16 of 1894, the defendant and appellant was required to appear and answer to the plaintiff’s demands within ten days, not after ten days, and that in the instant ease the citation having been served on the 9th of October, the ten days for answering expired on the 19th, and a judgment taken on the 10th was not premature, and was legal. That Article 318 of the Code of Practice, quoted by appellant, referred to citations in the District Courts, and not to those in courts of justices of the peace.”

OPINION.

A District Court has jurisdiction on an appeal to it from a judgment of a justice of the peace to pass upon the nullity of the judgment appealed from when the nullity is apparent on the face of the record, where the subject matter of the sui't itself falls within the appellate jurisdiction of the District Court (C. P., 609).

The mere correctness of the conclusions of that court as to the nullity of the judgment can not be tested in the Supreme Court under its supervisory powers, and a writ of certiorari is not a substitute for an appeal. (State ex rel. Brackenridge Lumber Co. vs. Tully, 48th Ann., 1533, and authorities quoted).

The minutes of the District Court, of the 6th of November, 1898, show tha't this case was, on that day, on motion of counsel of plaintiff and appellee, fixed for trial for Friday, the 10th of November.

On the 10th of November, defendant filed an assignment of errors, to the effect that it was patent on the face of the record that the justice of the peace, who tried said ease, had failed to notify the defendant of the day fixed for its trial, as required by law (C. P., 1084-1085).

That no citation, such as the law required, had been issued or served on defendant, and, therefore,’ the judgment was a nullity, and the same should be so decreed. In the minutes of November 10th, we find the following entry opposite the title of this cause:

“This case was this day called and taken up as per assignment. Present Messrs. J. L. Gaudet, of counsel, for the defendant and appellant, and H. Kenner, of counsel, for the plaintiff and appellee. Counsel for the defendant having filed an assignment of error, the same was argued on both sides and submitted, and the court took the same under advisement.

The minutes of the 22nd of November, 1899, contain the following entry:

The Berry & Denis Co., Lim., : vs. : Joseph Guarneri. :

On the assignment of errors filed in this case, and which had been taken under advisement on the 10th inst., the court 'this day rendered judgment, the decretal part whereof is as follows: “It is ordered, adjudged and décreed, that the assignment of errors filed herein, he annulled and set aside, and it is further ordered that the judgment herein rendered by the Fourth Justice Court of the Parish of St. John the Baptist, he affirmed, and that the Berry & Denis Company, Limited, appellee, recover from the defendant, Joseph Guarneri, the sum of sixty-four 20-100 dollars, with interest, at five per cent, per annum from October 9th, 1899, and all costs.”

The judgment here referred to is in the transcript, under the heading (whether made in the transcript by the clerk, or in the judgment, does not appear) :

“Order of court on assignment of errors,” and reads as follows: Order: “The within assignment of errors having been submitted after argument, and for reasons orally assigned in open court, the law and the evidence being against the mover and in favor of plaintiff and appellee; it is hereby ordered, adjudged and decreed that the assignment of error be overruled and set aside, and it is further decreed that the judgment herein rendered by the Fourth Justice’s Court, of the Parish of St. John the Baptist, be affirmed, and that the Berry & Denis Oo., Limited, recover from the defendant, Joseph Guarneri, sixty-four 20-100 dollars, with interest, at five per cent., from October 9, 1899, and all costs.

“Judgment rendered, read and signed in open court. Parish of St. John the Baptist, November 22, 1899.

“(Signed) • Emile Rost, ‘‘Judge."

In State ex rel. Brackenridge Lumber Oo. vs. J. T. Tully, Justice of the Peace, 48th Ann., 1533, the court, referring to proceedings before justices of the peace, said: “The proceedings contemplated by the Code do not require the assignment for trial, first, the exceptions, and then a trial on the merits. The record shows the court heard testimony on the merits, and considered the exception. He decided against the defendant, and he was notified of the judgment.” This court declined to interfere in the premises.

The District Court had the right, as did the justice of the peace, to take up and dispose, at one and the same time, of the matters involved in the assignment of errors, and of the merits of the controversy, after evidence had been adduced, and the ease had been closed and submitted. The question here is: Did it do so? The minute entries show that the case had been fixed for the 10th of November; that on that day it was “called” and “taken up pursuant to assignment,” but they do not show that any evidence was adduced, nor that the cause was submitted on the papers filed.

On the contrary, so far as the minutes would indicate the situation, the court, after the case was called and taken up and argument upon the matters involved in the assignment of errors had been heard, itself severed consideration of the same from the case itself, before hearing evidence, and held it separately under advisement.

The phraseology of the minutes of the 22nd of November, and also the heading and form of the judgment itself, convey the same impression.

The district judge in forwarding a copy of the record to this court, accompanied it by a sworn return or statement, in which he informs us that in point of fact the whole case was submitted to him at one time, and he had disposed of the whole of it at one time.

If this was so, it does not affirmatively appear upon the face of the record, and the record itself controls our conclusions as to matters which should appear upon the same. We are exceedingly reluctant to test and dispose of substantial rights of parties upon what may result simply from the ignorance or carelessness of clerks of courts.

We have the right and authority in proper eases, where there is reason to believe that the minutes are incomplete or incorrect, to postpone action until the parties in interest should have had an opportunity, if wrong, to correct them, and to make them conform to the actual facts by proceedings contradictorily taken in the trial court (Harris on Certiorari, Section 11).

Relator states under oath that, as a fact, the district judge has rendered judgment without allowing him an opportunity to be heard, by evidence, or otherwise, on the merits of the case, and against the protest of his counsel.

Article 801, of the Code of Practice, directs that the inferior judge, to whom the mandate (or certiorari) is directed, “shall immediately send to the superior court a certified copy of the record called for.” Articles 864 and 865 declare that: “If, upon examining the certified record thus sent, it shall' appear to the court issuing the mandate that the proceedings are null, and have not been sanctioned by the party complaining of them, it shall avoid the proceeding and direct the inferior judge to try the cause anew in conformity with the provisions of law.” ‘ . 1

“If the court which, issued the mandate finds that the proceedings have been regular, or that the party has waived his objection to them, it shall dissolve the order which it had issued, and shall condemn the party who had applied for the mandate to pay the whole costs.”

These articles seem to open the door under some contingencies to reference by the judge in a return to matters en pais and dehors the record proper, but we need not discuss nor dispose of that question now. ■

We think the proper course to pursue in this particular matter is to hold matters in abeyance, for the time being, and to authorize and direct the District Court to have the parties notified, and to direct them, within a time to be fixed by it, to have contradictorily with each other the minutes of the proceedings in this ease in the District Court modified or corrected, and made to conform to the actual facts, should they be wrong or incomplete (Harris on Certiorari, Section 11), and for this court to further direct the District court to forward to it a certified copy of what action may have been taken in the premises, within ten days from the time fixed by it for the correction or modification of the minutes, and it is now so ordered, and that a copy of this order be made and sent down to the District Court for action.

Statement of Facts.

This cause having been suspended in order to enable the court and the parties to have the minutes of court amended, if insufficient or incorrect, no direct action was taken by them to that effect, but counsel of plaintiff, and of the defendant, together with the district judge, made out and forwarded to us the following statement of facts:

“First. — The minutes of the proceedings in the District Court, as contained in the certified record sent up to the Honorable the Supreme Court, are correct.

“Secondly. — The appeal of the defendant, Guarneri, was regularly fixed for trial on the merits, and the ease was regularly taken up. on the 10th of November, 1899. After the case was called, counsel for appellant filed an assignment of errors apparent on the face of the papers; argument was heard on same, and same was taken under advisement.

“Thirdly.- — At the time of trial, no evidence was offered by either party on the merits. There being no pleadings whatever of any kind in the case, the court considered the assignment in the nature of an answer, and assumed that the case having.been called must be decided in its entirety even though not expressly, submitted on the merits, and taking this view, this court, after overruling the assignment of errors, proceeded to affirm the judgment .of the lower court.

“Fourthly. — This judgment was rendered in open court, some -eight or ten days after the trial of the case. Counsel for applicant being present in court, made no motion for a new trial, but at once notified the court of his intention to apply to the Honorable the Supreme Court for a writ of prohibition on the ground that this court had rendered judgment on the merits of the case.”

It having been shown that judgment was rendered in the cause without the hearing of evidence, we have no alternative but to set aside the same and reinstate the case upon the docket in the situation it was just after the overruling of the assignment of errors.

For the reasons assigned, it is hereby ordered, adjudged and decreed that the judgment rendered by the Twenty-First Judicial District Court, for the Parish of St. John the Baptist, in the matter of The Berry & Denis Company, Limited, vs. Joseph Guarneri, No. 12, Appeal Docket, be and the same is hereby set aside as having been improvidently rendered, and the said cause is reinstated on the docket of that court, in the situation it was, just after the overruling of the assignment of errors filed in the same.

Costs of this proceeding to be borne by the plaintiffs in that action.


author: Nioholls, C. J.

text:
    No. 13,407.
    Sevigne Babineau and Marie Brasseaux, Wife, vs. O. P. Guilbeau and J. A. Broussard, Sheriff.
    Syllabus.
    Where a judgment creditor institutes an action against a husband and wife to have a üation en paiement set aside as simulated and fraudulent, and prays to have the property covered by the same, seized and sold to pay his judgment, it is the duty of the parties, if the property is exempt from seizure and sale under the homestead laws, to set up contingently and in the alternative that right of exemption in the pending suit.

      They should not allow judgment to go against them setting the elation aside and ordering the sale of the property; for, should they do so, they would be cut off from the defense by the judgment.
    APPEAL from the Seventeenth Judicial District Court, Parish of Lafayette. — -DeBaillon, J.

      Gustave A. Breaux for Plaintiffs, Appellants.

      Orther G. Mouton for Defendants, Appellees.
    STATEMENT OF THE CASE.
   The opinion of the court was delivered by

Nioholls, C. J.

In December, 1898, O. P. Guilbeau, one of the defendants herein, recovered a judgment against the plaintiff, Sevigne Babineau, for eighteen hundred dollars in an action which he had instituted against him for slander.

That judgment was recorded January 19th, 1899.

On August 3, 1898, Babineau had, by notarial act, made a dation en paiement to his wife, Marie Brasseaux, of certain property therein described in which the consideration was declared to be the replacement to her of paraphernal funds received and used by him, belonging to his wife.

In January, 1899, Guilbeau instituted suit against Babineau and his wife to set the transfer aside, first, on the ground that it was a simulation, and next, if not simulated, that it was fraudulent, and to place his property beyond the reach of plaintiff and in anticipation of a judgment against him.

The property transferred was estimated in the act at eleven hun.dred dollars.

Judgment was rendered in this case setting aside the dation en paiement so far as to subject the property to the execution of the plaintiff, but decreeing that the wife should recover the sum of three hundred and seventy-nine dollars and thirty-five cents by preference over plaintiff, holding that the remainder of her claim had not been proved.

This judgment was appealed from devolutively, and the appeal is now pending before the Court of Appeals.

Guilbeau obtained a writ of /£. fa. upon his judgment, and on that writ the property embraced in the dalion en paiemeni was seized.-

Babineau and his wife enjoined the sale of the property on the ground that it was exempt from seizure and sale, it falling under the provisions of Article 244 of the Oonstitution of 1898, and protected as a homestead by its provisions, and on the further ground that the. property had been seized as the property of the wife, who was not the judgment debtor.

Judgment was rendered by the District Court rejecting the demand of the plaintiffs for homestead exemption, and dissolving the injunction taken out, and plaintiffs in injunction appealed.

Appellee maintains that, even if the property could have been protected from seizure and sale by homestead rights, the latter were lost and forfeited by the conduct of the parties and the judicial proceedings which resulted from the same. That Babineau made a fraudulent and simulated dation en paiemeni to his wife to cover up the property from the pursuit of his creditors, which forced him to attack it as such. That in the suit brought by him for that purpose, he obtained a judgment setting the transfer aside, in so far as his rights were concerned, and decreeing expressly and contradictorily with husband and wife that the property should be so seized and sold to pay his judgment; that in that suit Babineau denied ownership of the property in himself, and both he and his wife averred it to be vested in the latter; that no claim was set up in that suit in answer to his demand that the property be seized and sold to pay his debt; that it was protected by homestead rights; that such rights should have been urged at that time, if they existed, and judgment having been rendered, as stated, both defendants were estopped by their pleadings from urging that the ownership was in the husband, and both were estopped by res judicata from claiming that the property was not subject to be seized and sold in satisfaction of his judgment.

In support of his contention, he refers the court to Gilmer vs. O’Neill, Sheriff, 32 Ann., 983; Hill vs. Lancaster, 88 Kentucky, 338; Snap vs. Snap, 87 Kentucky, 554; Honaker vs. Cecil, 84 Kentucky, 202; Thompson on Homestead and Exemptions, paragraph 726; Freeman on Judgments, paragraph 303; Trader’s National Bank vs. School, 54 -, page 334; American Digest, 1899, page 2115-59 (a) American Digest, 1894, page 2068, Nos. 271-272.

lie further insists that although he has obtained a judgment setting aside the transfer from Babineau to his wife, so far as to authorize him to enforce his judgment against it, yet as between the parties and all others, the ownership of the property, under Article 189?, 0. 0., remained and is still in the wife, but if the effect of the judgment was to reinvest the husband with the title, then he is not a tona fide owner, as he is required to be by the Constitution, to claim a homestead.

We are of the opinion that Babineau and his wife should, when Guilbeau brought suit against them to set the dation en •paiement aside and subject the property covered by the same to the payment of his judgment through seizure and sale, have urged contingently the exemption of the property from such seizure and sale under the homestead laws, and that having failed to do so at that time, it was too late after judgment to raise that issue, and that appellees’ execption of res judicata is well founded.

The authorities cited by him sustain the correctness of his position on that subject.

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

Rehearing refused.


text:
    No. 13,375.
    W. J. McWilliams vs. H. M. Elder.
    Syllabus.
    .Plaintiff, an employe of defendant, sued for compensation for services rendered in tlie management of her business. For the first two months of the service, there was no written contract. Defendant only assured plaintiff that he would not lose anything by abandoning the practice of his profession and taking charge of her business. At the end of two months, a contract was entered into between these parties in which the profits to be made in a store were to be considered as the equivalent for some, perhaps all of plaintiff’s services.
    Held : (1) That as the contract did not fix the whole of compensation plaintiff was to receive, proof admitted without objection was properly before the court as in a case brought to fix the value of the compensation;
    (2) That there was no profit made in the store in question, and, therefore, plaintiff could recover nothing therefrom;

      (3) That the plaintiff was entitled to the value of his services to the date of his discharge, even if he was discharged for cause ;
    (4) That the defendant employed plaintiff individually, and not as legal representative of the succession of her late husband;
    (5)-That there was no partnership between plaintiff and defendant;
    (6) That plaintiff is not entitled to an amendment of his judgment increasing the amount heretofore decreed as due him.
    APPEAL from the Fifth Judicial District, Parish of Ouachita— Potts, J.

      E. T. LamJcin and Madison & Madison for Plaintiff, Appellee.

      Hudson, Potts & Bernstein for Defendant, Appellant.
   The opinion of the court was delivered by

Breaux, J.

Defendant appeals from a judgment condemning her to pay the sum of one thousand and sixty-three 62-100 dollars to the plaintiff, subject to a credit of one hundred and sixty-two 96-100 dollars.

Plaintiff answered defendant’s petition for an appeal, and asked for an amendment increasing the judgment to the amount claimed in his petition. Plaintiff, in his petition addressed to the District Court for a judgment, sets out that, shortly after the death of defendant’s husband, Moses Elder, in 1897, the defendant employed him to manage the business of the succession of her late husband; that about the first day of February, 1898, the defendant, in'addition to the services before referred to, employed him to manage the business of a small country store at or near her plantation, of which business he took charge and control, and continued in charge until about the fourteenth day of August, 1898, when defendant, without cause, took charge of the business and placed another in his place. He states that he, in compliance with defendant’s request, gave up a profitable practice as a physician and devoted his time and attention to the business with which he was entrusted by the defendant, and that defendant promised him when he abandoned his practice at her instance, that he would not thereby be a loser; that his practice was worth about fifteen hundred dollars a year to him. He avers that he was not employed under any special contract, so far as relates to compensation, but that his services were well worth the amount he claims.

He, also, avers that the assets of the store amounted to thirteen thousand and seventy-nine 66-100 dollars at the time he was discharged and its liabilities to seven thousand and twenty-three 9-100 dollars. Plaintiff, under the agreement with defendant, claims a half interest in the De’Siard store and one-half of the profits of the mercantile business as a part consideration for his services.

He admits that he withdrew five hundred and seven 96-100 dollars from the business, and that he put in the business the sum of three hundred and forty-four 4-100 dollars. He charges that by defendant’s illegal discharge, he was left without a home and without occupation, as he had been induced by defendant to abandon his profession, for which he claims damages in amount alleged in his petition.

Plaintiff, in the alternative alleged, if the court finds that he was a partner of defendant, then there should be a partnership settlement ordered, the share of each being fixed. Defendant before filing her answer, filed an exception of no cause of action, which was overruled by the court. She then filed her answer, denying the allegations of plaintiff’s petition, save those which she specially admitted. She admitted, in her answer, that after the death of her husband, that is from December 1st, 1897, to February 1st, 1898, she employed plaintiff to look after the succession business of her husband, and she alleged that if anything is due to plaintiff, it is due by the succession and not by her.

She admits that she entered into a contract in writing with plaintiff, and that it stipulated that for the management of her planting business during the year 1898, plaintiff was to receive one-half of the net profits of the store known as the DeSiard store, which was a plantation store doing a general furnishing business.

She sets out, that when suit was filed against her, the crop on her plantation had .not yet all been gathered. She particularly complains of plaintiff’s management; that it was reckless, extravagant and unusual; that it was impossible to collect the accounts due the store, the crops not being enough to pay, and the debtors, who were nearly all hands on her places, had nothing else with which to pay; that there were no profits to divide with plaintiff; that the plaintiff insisted upon making large debts, and refused to consult with her in regard to the business to such an extent that she was compelled to discharge him from her employ to avoid the bankruptcy of her entire estate. These are the pleadings.

As relates to the facts, they are: The contract between the parties did not cover all the terms of their agreement. Plaintiff testifies that in compensation for his services, he was to receive no less than one^ half in complete ownership of the stock of the store known as the Der-Siard store, that the expenses in conducting the business were to be taken from the revenues of the store, and all the goods purchased were to be paid for in the same way. Defendant’s attorney, on the other hand, testified that plaintiff complained to him about the loss of the instrument or contract he had signed and entered into with defendant; that several months prior to this complaint about the loss of the contract, he had called on him, the attorney, and asked him to read the contract, which he did read, and he found that under its terms, plaintiff was not entitled to one-half the stock in the store, but to one-half of the net proceeds. He, the attorney, so informed the plaintiff, who then sought to modify the contract in accordance with what he conceived to be the rights of the respective parties thereto. He called on the defendant and requested her approval to the modifications, which she positively refused.

Hatters remained in that situation. Suit was brought on the lost contract, and the terms were proven by secondary evidence. It appears that the compensation was not expressly stipulated, or, at any rate, that the contract did not clearly define how much plaintiff was to receive for his services. She bought the DeSiard store from the succession ,of her husband in J anuary, 1898, for which she paid twelve hundred dollars.

Plaintiff had charge of her (defendant’s) business before and after she had bought this store. About the 15th of August, 1898, plaintiff was not permitted to continue with the management of the store, and he, at the instance of the defendant, was succeeded by another employe of the defendant.

Defendant became displeased with plaintiff’s management, because, she testified, he bought too many goods and other property, because he sold too much on credit, and made advances to the hands on defendant’s plantation to an extent beyond her approval; because he did not confer with her as he should have done; and because he did not give her sufficient information regarding the details of the business.

Plaintiff testified in his defense, as relates to this complaint, that the defendant had empowered him to superintend and manage her business; that while he had given her every necessary account, he did not deem it necessary to consult her every time he saw proper to buy goods, or other things necessary to keep up the business of the store, or the planting operations; that she had said to him in the beginning, that it was not necessary to consult her, as she did not know anything about goods.

Plaintiff, in addition to his demand for the value of the services rendered, claimed damages on the ground that at plaintiff’s insistence, he had given up a paying elientelle as a physician, which he had abandoned on the defendant’s promise that he would be amply paid.

Plaintiff, in support of his claim based on the asserted interest in the store, filed a statement from an inventory and statement made about'the time he left the service of the defendant

This statement-shows.-

By accounts from February 1st to August 15th.$8,205 85

Inventory .•. 4,093 54

Cash from store bills paid. 361 98

Dr. W. J. MeWilliams, account. 507 96

Mrs. H. H. Widers ..... 272 31

$13,441 64

liabilities.. 8,333 48

$5,108 16

The goods in the store purchased January 18th, 1898, should, also, be deducted from this balance.

This balance covers amounts due by the tenants and others not considered accounts of any value. The bookkeeper of the defendant, who had charge of the store and the books, after plaintiff left, testified that the business of the store in 1898 had not resulted in any profit.

The general superintendent, who succeeded the plaintiff, testified to the same effect. Plaintiff, himself, as a witness, did not fix any amount whatever as a profit.

Upon these issues the judge of the District Court pronounced judgment for plaintiff, for the sum of one thousand and sixty-three 62-100 dollars, with interest, less one hundred and sixty-two 96-100 dollars.

With reference to- the statement just referred to, the judge found that on the fifteenth day of August, 1898, the date on which plaintiff was discharged, the store had made no profit, and that it was about the same with the business at the end of the year 1898, in other words that no profit was made in the store in question that year.

Defendant and appellant assails, in the first place, the judgment of the District Court on the ground that the suit was brought on a contract, but that the judgment rendered by that court was based on a quantum meruit.

We have not found that the suit was brought exclusively on a contract. Petitioner avers that he had “no special contract with defendant” as to the compensation he should receive.

Evidence of the value of the services rendered was admitted without objection. It is quite true that, ordinarily, where the evidence shows that the action is based on a contract, plaintiff cannot recover on a quantum meruit. But the rule is not conclusive where one sues on a contract setting forth the nature of the services to be rendered and is silent regarding the value of the services. There can be no question regarding the first two months of plaintiff’s services as an employe of the defendant. He was employed, and the amount of his compensation was not fixed. About the first of the third month after plaintiff had been employed, defendant agreed to divide with plaintiff the net profits of the store. A question arose as to whether this was to be in compensation for all of plaintiff’s services or was only in compensation for his services in the matter of the business of the store. We are informed that plaintiff, until the fifteenth of August, had charge of all defendant’s business, to-wit: business of .the store and general superintendence of the different plantations.

Be it as it may as to whether plaintiff was to receive as compensation for all his services only one-half of the net proceeds of the store, or whether he was to receive other compensation for services other than those connected with the store, it remains that defendant discharged plaintiff, and that it was no longer possible for him to continue in Ms employment. Plaintiff having been prevented by defendant from completing his contract, he should recover the value of his services to the date of his discharge. Even if defendant had cause to discharge the plaintiff, he was entitled to his salary up to the date of his discharge. The case of Lambert vs. King, 12th Ann., 662, is in point. The court, in that case, held that the plaintiff was justified in dismissing the defendant from her services, but that the defendant was entitled to a fair remuneration for said services up to the time of bis discharge, in estimating which, reference should he had to the stipulations of the contract.

With reference to defendant’s denial of any responsibility to plaintiff, as she asserts, for the reason that the plaintiff was employed to look after the succession of her husband, we can only say that, in our view, this contention is not borne out by the facts. The property belonged, as we take it, to the community of which defendant owned one-half in her own right, and she had the usufruct of the other half. She, it appears, transacted with plaintiff in her own name to look after the affairs of this large estate, amounting to -more than one hundred thousand dollars. 'She was the legal representative of the succession, but he was her employe individually. She could not, in view of the facts, shift the responsibility of the compensation from herself, and compel him to seek payment from the succession.

We have before stated that the DeSiard store in which plaintiff had a half interest in the profits made no profits in 1898; this renders it unnecessary to pass upon the question as to whether a partnership existed. We have, none the less, considered the question of partnership and found that there was no partnership for the reason that one does not enter into a partnership with his employer by the latter’s allowing him a portion of the profits in compensation for his services. Miller vs. Chandler, 29th Ann., 88.

We pass to the decision of the last and only remaining question, arising on the application of the plaintiff made here in the answer to the appeal for an amendment of the judgment increasing the judgment of the lower court. We do not find, either in the pleadings or in the evidence, good ground to grant this demand. The compensation heretofore allowed is ample for all services rendered.

In our view, this view of the law on the point raised does justice to both parties. We think that nine hundred dollars with interest, the balance allowed in the judgment of the lower court, is not excessive.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed at appellant’s costs.

Rehearing refused.


text:
    No. 13,442.
    State of Louisiana vs. Thomas Walls, alias Banks, et als.
    SYLLABUp.
    An act of jurors indicating a disregard of the solemn duty imposed upon them, . - and a disregard of the solemnity of their oaths, will justify the setting aside of the verdict and the granting of a new tria!. (State vs. White, 48th Ann., 1445.)
    APPEAL from the Eleventh Judicial District Court, Parish of Acadia. — Dupre, J.

      Milton J. Cunningham, Attorney General, and B. Lee Garland, District Attorney, for Plaintiff, Appellee.

      Joseph G. Medlenka and James L. Dorman for Defendants, Appellants.
   Statement op Facts.

The opinion of the court was delivered by

Nicholls, O. J.

The five defendants, appellants herein, Thomas Walls, alias Banks, Martin Jones, alias Mayfield, Joseph Sires, Robert West and Erere LeBleau, were indicted for the murder of Ambroise Buchanan.

The jury returned an unqualified verdict of guilty of murder as to Thomas Walls, and a verdict of guilty, without capital punishment, as to the other four, and under the verdict, Walls was sentenced to be hanged, and the other four to life imprisonment in the State penitentiary.

They have appealed, after an unsuccessful effort to obtain a new trial, in which they assigned as reasons therefor:

“1st. — That while the jury was taking a recess in the court-house yard, one of the jurors, W. E. Crockett, made a statement in the hearing of defendants’ counsel, 'and in a tone of voice loud enough so the balance of the jury could hear, ‘That the lawyers for those niggers better stop asking so many foolish questions.’

“2nd. — That shortly afterwards the jury returned to the court-room and the trial was resumed. That during the progress of the examination of witnesses for the defense, and only forty-five minutes after the defense had opened its side, the District Attorney remarked to the defendants’ counsel, that one of the jurors requested that we, defendants’ counsel, hurry up. That they, the jurors, wanted, to get home. On a reply by one of the defendants’ counsel, that they were not delaying the trial, but were anxious to get through, the District Attorney reiterated his former remarks in a sincere manner, that one of the jurors made, the request that we hurry up, as they wanted to get home.

“3rd. That the next day being 'Sunday, the jurors made no secrecy of their desire to rush the trial through, regardless of the consequences to the defendants, who were on trial for a grievous ofiense, and whose lives hung by a thread, and depended upon a fair and unbiased decision or verdict from the said jurors.

“4th. — That said conversation with the District Attorney, a third party, was prejudicial to the defendant, for the reason that it was a comment on the manner of conducting of trial by the defendants’ counsel.”

In view of these facts, accused averred that the actions and remarks set forth and attributed to the jurors showed a wanton disregard for the responsibilities that rested upon them; that they were prejudiced, biased, and unwilling that the accused parties should have a fair and impartial trial, and that, therefore, the said accused parties did not receive a fair and impartial trial; that the remarks were an improper reference to conduct of said trial by the defense, and they were entitled to a new trial, and so prayed.

OPINION.

We are of the opinion that the overruling, by the District Court, of the motion for a new trial, was an error. Defendants were clearly entitled to have the verdict set aside. The district judge states:

“That, in his opinion, defendants had a fair and impartial trial. The misconduct of the juror complained of could not, and did not, prejudice the accused.

“After being charged, the jury remained over fifty minutes deliberating upon a verdict, which goes to show that they went over the entire case before arriving at a verdict. It was a very intelligent jury, and I am certain did their duty, as they understood it, without prejudice to the accused.

“While it is true the case did not consume much time in being tried, this was owing to the insufficiency of evidence on the part of the defendants, which was of a negative character. If I believed any injustice had been done these accused parties, I would gladly relieve them, but being convinced to the contrary I am powerless so to do.”

We are always reluctant to reverse a judgment and set aside the verdict of a jury when the District Court has refused a new trial, and declared the verdict sustained by the law and evidence, but we can not view matters in this particular instance as the District Court did.

It is unfortunate, if these defendants be really guilty, that the administration of justice should have been impeded by those whose duty it was to have enforced the law, but a verdict rendered under the circumstances, under which this verdict is shown to have been returned, should not be permitted to stand, no matter how guilty the parties may be in fact.

In State vs. White, 48 Ann., 1445, we said that “any act of jurors indicating a disregard of the solemn duty imposed upon them, and a disregard of the solemnity of their oaths, will be sufficient to avoid the verdict,” and in State vs. Fourchy, 51 Ann., 251, that “it is much better that a defendant, even if guilty, should be afforded a new trial, than that the verdict and sentence against him should stand with a doubt attached to the conviction; that the State, in securing it, had not afforded to the accused all the legal and constitutional privileges to which he was entitled.”

One of the most important rights to which an accused party is entitled is to be tried by an impartial and fair jury. A verdict rendered by a jury under conditions such as to carry with it a doubt as to its sincerity, impartiality, and correctness, and as to its having been returned under a proper sense of official responsibility, should not, as we said in the Fourchy case, be upheld.

For the reasons assigned it is hereby ordered, adjudged and decreed that the verdict of the jury be set aside, and the judgment therein rendered be and the same is hereby annulled, avoided and reversed, and the cause remanded to the lower court for further proceedings, according to law, the accused parties to be held in custody to await the final result.


text:
    No. 13,363.
    J. B. Petitfils & Bro. vs. The Town of Jeanerette.
    Syllabus.
    1. In Article 206 of the Constitution of 1879 it was declared that “no political corporation shall impose a greater license tax than is imposed by the General Assembly for State purposes”.
    This constitutional provision was removed by Article 229 of the Constitution of 1S98, so far as licenses upon dealers in distilled alcoholic or malt lisuors were concerned, but the adoption of this Article, while it left the General Assembly free by general law to confer upon political corporations the power of imposing upon dealers of that peculiar description higher licenses than those imposed by the State, did not have the effect pro facto of conferring such power upon political corporations which in the statutes creating them had been expressly restricted in the power of license taxation therein granted them to licenses not to exceed those of the State.
    The withdrawal of the constitutional restriction did not enlarge the limited grants of powers given to them by the Legislature.
    It required legislative action for that purpose and an extension of their powers in this respect was in fact given by the 16th Section of Act No. 171 of 189S. (Mayor and Council of Alexandria vs. White, 46th Ann., 451; Railroad vs. Town of Kentwood, 49th Ann., 933.)
    2. It being admitted that none of the dealers in distilled alcoholic or malt liquors in the town of Jeanerette would fail into a class higher than the 8th, or lowest class in the State’s classification for liquor licenses, those dealers are in no wise injured by the town council’s not adopting a classification of licenses to cover dealers falling into the State’s upper classes, nor have they any ground of complaint that the town did not adopt a classification for licenses extending downward below the lowest class adopted by the State for State purposes.
    APPEAL from the Nineteenth Judicial District, Parish of Iberia — > Voorhies, J.

      Walter J. Burlte & Brother for Plaintiffs, Appellants.

      Philip H. Mentz for Defendant, Appellee.
   The opinion of the court was delivered by

Nicholls, C. J.

Plaintiffs, who keep a liquor saloon in the town of Jeanerette, seek to recover back from that town the sum of five hundred dollars, that being an amount paid by them to defendant for a license demanded for .a town liquor license for the year 1899.

In the event that the whole amount of five hundred dollars should not be recoverable, then it prays to recover at least four hundred dollars, which amount is the difference between the liquor license of $100 imposed by the State and the liquor license of $500 imposed by the town. The ground upon which recovery of the whole amount is predicated is that the defendant in imposing a license tax had fixed it at five hundred dollars “regardless of the volume and magnitude of the respective establishments” and had not “graduated” the tax according to the amount of business done as required by law.

The ground upon which the alternative demand for the recovery of four hundred dollars is based is that the defendant town is under its original charter and .the amendments thereto limited in the exercise of its power of license taxation- to the imposition of a -tax not greater than that imposed by the State for its own purposes.

Defendant after pleading the general issue averred that it was a [municipal corporation in the full enjoyment and exercise of the corporate powers conferred upon it.

It admitted to have received five hundred dollars from the plaintiff and alleged that it had the legal right to do so. It averred that the restrictions in its charter which prevented it from levying a greater license tax upon liquor dealers than that imposed by the State were no longer in effect, and that such restrictions had been annulled and superseded by Art. 229 of the Constitution of 1898.

It averred that Art. 229 of the Constitution treats and deals with the entire subject matter of the right of a political corporation to levy a license tax upon persons occupying or pursuing any and all avocations and especially with the right to levy a greater license upon dealers in liquor than is required by the State; that it embraces the whole of the subject matter and is in itself a complete code of regulations as to said matters; that it specially permits all political corporations to require from liquor dealers a greater license than that required by the State and this without qualification, limit or conditions of any kind; that this article is now the sole rule upon the above subject and that any clause in its charter or that of any other political corporation whether resulting from special or general law and whether prior or later than the adoption of the Constitution of 1898, was thereby repealed and abrogated and that all such clauses and statutes which are inconsistent with the terms of said Article are unconstitutional and void, and it pleaded the unconstitutionality of any and all such clauses and statutes.

It pleaded that Art. 229 of the Constitution operated a complete repeal by supersedure of all and every clause in the defendant’s charter and of every other law ever in force in Louisiana which deals with the rights of a political corporation to exact from a dealer in distilled alcoholic or malt liquors a greater license than what is required of such dealers by the State.

The following admissions appear in the record.

It is admitted that the town of Jeanerette was originally incorporated by Act No. 102 of 1878, that this original charter was amended by Act No. 30 of 1879, both of these being of the General Assembly of the State of Louisiana, and that it was further amended in accordance with Act No. 110 of 1881, the pertinent part of this last mentioned being that it contained the same clause as the original legislative charter limiting the power of the town to levy licenses to the amount levied by the State on each occupation; that the State of Louisiana has required and collected of this defendant a license of $100 (one hundred dollars) for pursuing during 1899, the occupation of retail liquor dealer; that for and during 1898, this plaintiff paid the town of Jeanerette, one hundred dollars for pursuing the said occupation during 1898, that for the year 1899, the town of Jeanerette imposed a license on all liquor dealers of five hundred dollars each; that all liquor dealers paid said town for the year 1898 a license predicated on. sales amounting to less than five thousand dollars; that the annexed extract is a correct copy of the ordinance of said town, adopted December 3rd, 1898, and levying licenses for 1899.

It is admitted that plaintiffs paid to the town of Jeanerette the $500 license under protest, when steps for its collection were about to be taken in court.

A copy of the proceedings of the defendant’s Town Council of Dec. 3, 1898, shows that on motion duly made and seconded “the license tax for liquor dealers of the Corporation of Jeanerette be levied at five hundred dollars to take effect Jan. 1, 1899, and other licenses to be according to revenue law of the 'State adopted at the last session of the Legislature.”

The District Court rejected plaintiff’s demand and they appealed.

Defendant’s counsel in their brief say:

“This is a civil suit involving less than two thousand dollars, but as there is in contestation 'the legality of a tax, toll or impost’, both parties have assumed that appellate jurisdiction is in the Supreme Court.”

“ The (next to) the last admission made means that all liquor dealers in that town had already declared that as to a State license they came within the five thousand limit mentioned in clause 8 of the list of such dealers in Act No. 171 of 1898, which sum is the minimum limit, and that if graduation was required they had united in making it impossible since they all claimed to have gross annual receipts less than the smallest amount on,which they could pay a license.”

The town of Jeanerette owes its origin to Act No. 102 of the Extra Session of 1877. It took only such powers as the Legislature thought proper to bestow upon it and was bound by all limitations and restrictions placed upon them.

Act No. 102, of 1877, was amended by Act No. 30, of 1879.

By the first section of the amending act, the Mayor and Common Council were granted power and authority to * * * impose such license taxes as they might think proper on all retailers of spiritous liquors, * * * grog shops, * * * and all other occupations, trades or professions, not enumerated above, should they deem it expedient or necessary, provided such license should in no case exceed the same tax levied by the State upon any such occupation, trade or profession.

The Legislature has never, by direct special statute, enlarged the powers of the town, in this respect, beyond those originally granted to it in these two acts, and Article 206, of the Constitution of 1879, which declared that no political corporation shall impose a greater license tax than is imposed by the General Assembly for State purposes, interposed a “constitutional” barrier to such extension by the General Assembly.

The provisions of Article 206, of the Constitution of 1879, were modified by Article 229 of that of 1898, which declared that “the General Assembly may levy a license tax, and in such case shall graduate the amount of such tax to be collected from the persons pursuing the several trades, professions, vocations and callings. All persons, associations of persons, and corporations, pursuing any trade, profession, business or calling, may be rendered liable to such tax, except clerks, laborers, clergymen, school teachers, ¡those engaged in mechanical, agricultural, horticultural and mining pursuits, and manufacturers, other than those of distilled alcoholic or malt liquors, tobacco, cigars, and cotton seed oil.”

“No political corporation shall impose a greater license than is imposed by the General Assembly for State purposes. This restriction shall not apply to dealers in distilled, alcoholic, or malt liquors.”

The political corporations of the State, while necessarily affected by constitutional provisions having' reference to them, and having reference to the powers of the Legislature over them, do not take their existence directly from the Constitution, but from the Legislature acting under the Constitution,

The adoption of Article 229, of 1898, freed the town of Jeanerette from the “constitutional” provision which, at that time, inhibited the. General Assembly from authorizing the town to impose a license tax greater than that imposed by the State, and inhibited the town itself from doing so, but it left the powers of the town to- be tested and determined by the acts of the Legislature creating it.

An examination of those acts discloses the fact that ab inilio only limited powers in respect to license taxation were ever granted to the town by the statutes from which it alone drew affirmatively its authority to act at all.

The action of the town was affected, first, by the fact of this absence of original grant of power from the Legislature, and next by the constitutional prohibition against its exercise of power. The two things are separate and distinct.

Had the powers of the different towns, and the defendant town, been circumscribed only by limitations in the “statutes” granting powers, defendant’s proposition, that a general statute removing the limitations, would have had the effect ipso facto of extending the powers, leaving them unconfined, might be true, but where, to the want of grant of original power, there is added a constitutional inhibition, either to the “granting” of or “exercise” of power, the withdrawal of the constitutional restrictions did not ipso facto extend the limited powers which had been granted by the Legislature, but would only enable the latter to widen them should it think proper so to do. Until it should have done so, the towns were vested with only such powers as had been conferred on them in the acts creating them.

We have, therefore, to pass beyond Article 229 of 1898 and see whether the General Assembly has, by an act of its own since the adoption of the Constitution of 1898, extended the powers of the town of Jeanerette.

On the 14th..of July, 1898, Act 171, of 1898, was approved by the Governor of the State.

The 31st section of the act declared that “all laws, or parts of laws, in conflict” with it were repealed. The act was entitled, “An act to levy, colleet and enforce payment of an annual license tax upon all persons, associations of persons, or business firms and corporations pursuing any trade, profession, vocation, calling or business, except those who are expressly excepted from such license by Article 229 of the Constitution, and prescribing the mode and method in which certain persons, subject to license, shall make report of their business.”

By the 16th section of the act it was enacted that “any municipal or parochial corporation in the State shall have the right to impose a license tax on any business, occupation, or profession, herein provided for, provided that all such license tax shall conform to the provisions of Article 229 of the Constitution.”

We think this section of the act , is a general affirmative grant of power by the General Assembly to the different existing political corporations of the State and widening the otherwise restricted powers theretofore conferred on them to the extent declared in the section (Mayor and Common Council of Alexandria vs. White, 46 Ann., 451; Railroad vs. Town, 49 Ann., 933).

We do not find in Act No. 136, of 1898, anything which would militate against such being the effect of Act No. 171, the latter being an independent statute.

It is true that the last clause of Section 40, of Act No. 136, referring 'to municipal corporations in existence at the time of its passage, declares that until they should elect to fall under the operation of its provisions,, their. corporate powers, rights and franchises, should be and remain sis then provided, for by law, but we understand this to mean that existing municipal corporations would be unable to avail themselves of the benefit of any .special privilege or power provided for and conferred in that particular act upon municipal corporations, which was' not then existing in their favor until they should agree to be found and controlled by all its provisions.

The defendant claims no special right, .privilege or power for itself to be drawn from and derived from Act No. 136, and, therefore, the clause in question-finds no application to the issue now before the court.

It is contended that the license imposed by. the town on liquor dealers, for the year 1899, was absolutely null and void, for the reason that it was not graduated so as to exact a different amount from different dealers under a classification based upon the extent of the business done by them.

Article 229 of the Constitution of 1.898, dealing with the subject of license taxation for “State” purposes, declares that “the General Assembly may levy a license tax, and in such case shall graduate the amount of such tax to be collected from- the persons pursuing the several trades, professions and callings.”

It does not mention in this particular connection the graduation by the political corporations of the license taxation which they were authorized to impose. The provisions, however, that no political corporation should impose a greater license tax than was imposed by the General Assembly for State purposes, carried with it, as- a consequence, that the different political corporations were forced to adopt and follow the same classification for license purposes which the State had adopted, so as not to impose upon any particular individuals, corporations or firms, any greater license than the State was exacting from the different classes. ■

We jajow of no obligation, at any time, on the part of the political corporations to make a classification more minute than that which the State had made,- and to carry the classification down, to below the lowest class as fixed by the State, or which required them to exact or impose-licenses along-the whole line of the State’s upper classifications.

. In graduating liquor licenses, the State has divided the dealers into eight classes, Class A, and 1st, 2nd, 3rd, 4th, 5th, 6th, 7th and 8 th classes.- Class A includes dealers with a gross annual-receipt of fifty thousand dollars, or more. Class 2 of twenty-five thousand dollars, or more, and less than $37,500. Class 3 of twenty-thousand, or more, and less than $25,000. Class 4 of fifteen thousand dollars; or more, and less than $20,000. Class 5 of ten thousand dollars, or more, or less, than $15,000. Class 6 of seven thousand five hundred, or more, or less, than $10,000. Class 7 of five thousand dollars, or more, or less, than $7,500. Class 8 of less than five thousand dollars.

The licenses imposed upon these different classes range from fifteen hundred dollars, for Class “A,” to one hundred dollars for the Eighth-Class.

Taking it for true (as we hold it to be true) that the town of Jean-erette was not limited in its license taxation upon liquor dealers to the amount of license imposed by the State in the different classes, and assuming that the town had adopted the same “classification” as the State had done (the eighth, or lowest class, consisting of dealers with annual receipts less than five thousand dollars), and that it had imposed a license tax of five hundred dollars upon dealers of that class, it is manifest that the plaintiffs would have had no ground of complaint against a license of five hundred dollars.

They would, in vain, urge the want of equality and uniformity in the taxation (41 Ann., 521, City of New Orleans vs. Pontchartrain Railroad Company), and that the classification should be continued downward.

This being the situation, in .what way would the plaintiffs (dealers falling under the lowest class) be prejudiced by the failure of the town to have adopted a classification upward for dealers with annual receipts ranging -from fifty thousand dollars down to five thousand dollars ?

It is admitted that there are no liquor dealers in Jeanerette with annual receipts of five thousand dollars, or more, and that all dealers in the town would fall under the lowest class according to the State’s classification, if that had been adopted and been subject, legally, to a license of five hundred dollars.

The only injury set up is that “throughout the Parish of Iberia (excepting in said town) a graduated schedule of licenses not exceeding that of the State, prevails and is in force.” We do not see how, by any action of this court, the Police Jury and the authorities of the town of Jeanerette (bodies entirely independent of each other) could be forced into conformity with each other in the adoption by them of the rates of liquor license taxation.

We find no legal ground for reversing the judgment appealed from, and it is hereby affirmed.

Rehearing refused.