author: Breaux, J.

text:
    No. 10,978.
    The Liverpool and London and Globe Insurance Company vs. Board of Assessors.
    Foreign companies, being required in order to carry on business in this State, to-have an authorized agent upon whom pi’ocess may be served, do not, in appointing a board of directors to act as their agent, localize their business anymore than those companies which manage their affairs through agencies not organized into boards.
    The duties of each agency being about the same.
    A non-resident creditor of a State can not be said to be, in virtue of a debt which a resident owes him, a holder of property within its limits. The credit is not' within the State’s jurisdiction, and of no value to the debtor, and is not property within the State, but property of the creditor, taxable at his place of residence.
    Tangible movable property may be taxed where situate under a special statute-which provides for its taxation.

      A PPEAL from the Oivil District Oourt for the Parish of Orleans. A King, J.

    £7. W. Huntington and Horace L. Dufour for Plaintiff and Appellee:
    1. The situs of a debt as property is at the domicil of the creditor. Burroughs on Tax., p. 186; Cooley on Tax., ch, 1, pp. 14-15; 15 Wall. 319; 100 U. S. 496; 41 An. 646-1015.
    2. A foreign company does not cease to be a foreign corporation by having an authorized agent or place of business in this State. Art. 286, Const. 1879; 41 An. 1015.
    3. A tax on premiums or 'gross receipts of an insurance company is an income tax, not allowed by our State Constitution. Burroughs on Tax., p. 159, Sec. 82; Id., p. 160; 42 An. 429 ; 35 An. 825; 35 An. 655; 43 Mo. 479-491; Dubuque vs. N. W. Ins. Co., 29 Iowa.
    4. There is no law in Louisiana authorizing the imposition of an income tax, nor making any provision for its enforcement. 35 An. 825; 42 Fed. Bep. 90.

      Garleton Hunt, Oity Attorney, for Defendants and Appellants:
    Under Section 7 of Act 106 of the™Acts of 1890, the Liverpool and London and Globe Insurance Company is liable to taxation, at lawful rates, on $50,000, being th©' assessed value of their credits and money actually in hand or in the possession of the company when the assessment was laid.
    It is true that the doctrine of the international jurists, in relation to the sitmot' movables, forms part of the ¿us gentium, but this statement is, beyond all doubt,, to be accepted subject to the limitation that there is no positive law to tht contrary of the country where the property involved happens in point of fact, tobe. For, if there is, the law of the owner’s domicil must necessarily yield to the law of the place where the property is actually situated. Burroughs on Taxation, Secs. 40, 41, 42; 2 Jones Equity; 21 Vermont, 161; 47 M. 600; 29 Cal. 533; 40 M. 580; 14 Kan. 602; 40 Ill. 198; 2 Duer, 110; 3 N. Y. 390; 100 Mass. 538; 19 Mass. 144.

      E. A.. O’Sullivan, Oity Attorney, and Henry Benshaw, Assistant Oity Attorney, on the same side, on Application for Rehearing:
    The rule mobilia sequentur personam may be modified by the Legislature. It has been so modified. See. 7 of Act No. 106 of General Assembly of Louisiana of 1890.
    This statute is a lawful exercise of the legitimate power oí the State. 2 Jones Eq. (N. C.) Rep. 51; 21 Vermont Rep. 152; 47 Mo. Rep. 600; 29 Cal. 534 ; 40 Mo. 580; 14 Kan. 602 ; 40111.198; 100 Mass. 538; 10 Wall. 573; 19 Wall. 499.
    Plaintiff is liable to the jurisdiction of the State through its agent, and also through its property. See following acts of Legislature of Louisiana, viz.: No. 21 of 1877; No. 76 of 1886, Sec. 13; and No. 85 of 1888, Secs. 54 and 55. See also O. P. 246.
    Attachment or seizure may be made without manual caption of the visible evidences of the credit. 11 Wall. 268; 15 Wall. 599.
   The opinion of the court was delivered by

Breaux, J.

This suit is brought by the Liverpool and London and Globe Insurance Company for the cancellation of an assessment against the company for the taxes of 1891, which reads as follows:

“Money loaned on interest, all credits and all bills receivable for money loaned or advanced or for goods sold, $40,000.

“Money in possession, on deposit or in hand, $10,000.”

It is admitted by the plaintiff company that it has the above amount of cash and open accounts in this city.

The validity of the assessment is denied; also the legality of the tax claimed.

The grounds of defence are:

That the premiums of insurance companies are its income and that no law authorizes the imposition of an income tax nor makes any provision for its assessment and collection.

That the cash, open accounts, credits, premiums or gross receipts due by insurers in this State, or collected from insurers in other States, are not taxable in this State, as they are not retained at the office of the company, but are forwarded to the main office at its domicil in Great Britain, where they can be taxed.

The evidence discloses that plaintiff is a foreign insurance company, carrying on business in this city, through the agency of a secretary and a local board of directors; that the functions of this board and of said officer are the collection of premiums and the payment of losses.

The answer of the defendant pleaded the general issue.

The District Court decreed that the assessment of 1891 (on money loaned on interest, all credits and all bills receivable for money loaned or advanced or for goods sold) of $40,000 is null and void, and that the assessment of 1891, against plaintiff, on money in possession, on deposit or in hand to the amount of $10,000 shall remain undisturbed and in full force and effect.

The appellee, in answer to the appeal, prays that the judgment be amended by striking out and annulling the assessment against the company for the year 1891, for $10,000 on money in possession, on deposit and in hand, and that the judgment of the District Court as thus amended be affirmed.

The assessment was levied under Act 106 of 'the Acts of 1890, the Section 7 of which provides that: In assessing mercantile firms, the purpose of the act is that such value shall be placed upon the stock; in trade or cash, whether borrowed or not, money at interest, open accounts, credits, as will represent in their aggregate a fair average ■on the capital, both cash and credit, employed in the business of the party or parties.

It is also provided in this section of the act that non-residents carrying on business in this State through agents shall pay a similar tax to that exacted of residents, and this section further provides that all bills receivable, obligations or credits arising from business done in this State is assessable at the business domicil of the nonresident owner, his agent or representative.

Business residence: The defendant urges upon our consideration that the London and Liverpool and Globe have here a business residence, an independent centre of business represented by a local board of directors made up of well known residents of the city; that they direct the affairs of the company and are paid for so doing.

The testimony shows that the local board and the secretary conduct the affairs of the plaintiff company in New Orleans under the direction of the head office; that the members of the board are paid ten dollars for each meeting they attend.

Foreign companies are required to have, in order to carry on business in this State, one or more known places of business, and an authorized agent or agents in the State upon whom process may be served. Instead of carrying on business through a personal agency the London and Liverpool and Globe has a board of directors and secretary, appointed by itself.

The business carried on by this board does not have the effect of localizing the company itself to a greater extent than if the business were conducted by an agency not organized into a board.

The premiums of foreign companies are all collected through local agencies, and the losses are adjusted by these agencies.

Whether represented by a board of their selection or by agents, they remain foreign companies, and in so far as relates to residence the same rule applies.

The companies are the owners of the assets. Payments of losses made here in cash, or by drafts sent by the home companies, do not change their status, in so far as relates to a business residence.

Debts to foreign companies not taxable: With reference to the first heading of the assessment, the evidence shows that plaintiff has no money loaned on intereat, nor bills receivable for money loaned, nor credits for goods sold.

The issues are limited to all credits assessed for premiums due.

A debt to a non-resident of a State is not liable to be taxed by a State in which he does not reside.

His credits are not within the State’s jurisdiction.

They are of no value to the debtor.

All the value there is in them belongs to the creditor, and is taxable at his domicil. Cooley on Taxation, 2d Ed., p. 21; 15 Wall. 300, 319; 11 Allen, 268; 4 Woods, 206; 43 Maine, 497; 11 New York, 563; 7 Minn. 198; 21 Vt. 152; 47 Conn. 477.

All corporations are taxable on property within the State. Debts-are not property when the creditor is not a resident o'i the State.

“ We conclude,” says Burroughs, p. 59, “ that the situs of personal-property for the purpose of taxation depends in a great measure-upon the nature of the property.”

As to debts a number of trustworthy decisions hold that—

“ Corporations, it is also conceded, may be taxed like natural persons on their property and business, but debts owing to foreign-creditors, either corporations or individuals, are not the subject of taxation.

“The creditor can not be taxed, because he is not within the jurisdiction, and the debts can not be taxed in the debtor’s hands-through any fiction of the law, which is to treat them as being for this-purpose the property of debtors. They are not the property of the-debtors in any sense; they are the obligations of the debtor, and only possess value in the hands of the creditors. With them they are property, but to call them property in the hands of the debtors is simply a misuse of terms.” 27 Grat. 344; 11 Allen, 268; 67 Ga. 489; 22 Fed. Rep. 602; 106 Ill. 25; 100 U. S. 496.

“ The mere right of a foreign creditor to receive from his debtor within the State the payment of his demand can not be subjected to taxation within the State.” Cooley on Taxation, p. 15.

The proposition of counsel for defeudant that the statute, No. 106-of 1890, under which the taxes here claimed are levied, authorizes the taxation of credits held by non-residents is true.

The statute must be applied in so far as relates to tangible movables belonging to non-residents, and as to them the general rule recognized by the comity of States, mobilia personam sequuntur, must yield.

The Supreme Court of the United States says upon that subject:

“ It is undoubtedly true that the actual situs of personal property which has a visible and tangible existence, and not the domicil of the owner, will in many eases determine the State in which it may be taxed. The same thing is true of public securities, consisting of State and municipal bonds and circulating notes of banks; these by general usage have acquired the character of, and are treated as, property in the place where they are found, though removed from the domicil of the owner.” 15 Wall. 300.

We are dealing exclusively with the question of credits as assessed, and we hold as decided in 41 An. 645, 1015, “that debts have their situs at the domicil of the creditor,” because debts are property and have a value, which is inseparable from the creditor, and because the State has no greater power or jurisdiction to tax debts due to non-resident! creditors than it has to tax any other personal property of such non-residents which is not situated in the State.

The want of jurisdiction and power would render it úseles to maintain the general rule applying to tangible movables.

Situs of the capital for taxation purposes: With reference to the second heading of the assessment, “ Money in Possession,” the evidence shows that plaintiff is correctly assessed. It is property within the State, and subject to taxation. It is visible and tangible, and expressly made taxable by statute, and is taxable where situated.

The authorities we have referred to as maintaining that debts can not be assessed against non-residents have established the rule that non-residents owning tangible and movable property within the State may be taxed.

Judgment affirmed at appellant’s costs.


source: Caselaw Access Project

author: Breaux, J. Fenner, J.

license: Public Domain

text:
    No. 10,958.
    William M. Railey vs. Board of Assessors.
    The Legislature has the power to separate the situs of corporeal movables from the domicil.'of the owner for the purpose of taxation.
    If a right be incorporeal and intangible, such as a debt, which is not the property of the debtor in any sense, being his obligation and having value only in the hands of .the creditor, its situs is necessarily where it is owned and not where it is due.
    A foreign insurance company domiciled out of the State and collecting premiums here is not liableforatax levied on the saidpremiums, being “credits” having its situs at the domicil of the company.
    The agencies of foreign companies, established in compliance with Act of 1877, requiring them to have business residences in the State, are not an election of domicil changing the situs of the said incorporeal rights.

      APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Harry H. Hall for Plaintiff and Appellee:
    1. Foreign insurance companies domiciled out of this State and collecting premiums before their maturity are not liable for a tax on said premiums as “credits.”
    2. Where an assessment is levied against said foreign companies, or against their agent personally, in the alternative, said assessment is illegal for uncertainty. Desty on Tax., 554; 53 Cal. 666.
    3. Where, as in the present case, the assessors levied a tax upon premiums or amount of business done, said tax becomes an income tax. Cooley on Tax., 221; Burroughs, p. 159.
    4. The Legislature, since the Constitution of 1879, has not authorized the imposition of an income tax. 35 An. 825; 42 An. 428; 42 Fed. Rep. 90.
    5. If the Revenue Act of 1890 could be construed as levying an income tax, such action would not be warranted under the Constitution of 1879. ‘The power to levy an income tax having been especially granted in antecedent Constitutions and omitted from the Constitution of 1879, would indicate that the Legislature has not the right to levy such tax. Constitution of 1845, Art. 27; Const. 1852, Art. 123; Const. 1864, Art. 124; Const. 1868, Art. 118.
    6. By Art. 206 of the Constitution of 1879 a license tax is apparently substituted for an income tax.
    7. The word property in Art. 203 of the Constitution of 1879 does not mean income. SeeConsts. 1845/1852,1864,1868; 35 An. 655; 43 Mo..479, 49'1; Burroughs, 38Í; 29 Iowa, Dubuque vs. X. W.Ins Co.; 42 An. 428.
    8. If the assessments complained of could be construed to represent uncollected premiums due these foreign companies, that would be an assessment of debts due to therri, and as such they are only taxable at the domicil of the foreign corporations Cooley on Taxation, 21; 15 Wall. 300; 11 An. 268; 4 Woods 206; 5 Met. 73; 43 Maine, 497; 11 X. V. 563; 7 Minn. 198; 21 Ver. 152; 47 Conn. 477; 27 Grat. 344; 67 Ga. 489; 106 Ill.25; 100 U. S 496; Desty on Tax , Vol. 1, p. 326; 25 Ohio State, 1; 100U. S. 491; GSInd. 247;8 Cal- 35L; 12 Iowa, 539; 50 Ga.393; 25 Cal. 601; 38 Cal. 461; 54 Iowa, 57; 96 U. S. 432; Burroughs on Tax. 186.
    9. The power of taxation of a State is limited to persons, property and business within her jurisdiction. All taxes must relate to one of these subjects. Tlic tax laws of a State can not have any extra-territorial operation. 15 Wall. suO; 41 An. 646; 41 An. 1015.
    10.Said companies did not have in this State money or credits liable to taxation, as a matter of fact, they having been sent out of the State.
    Same counsel for Defendants and Appellants as in preceding case and same authorities cited by them.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff is an insurance agent, and as such represents six foreign insurance companies.

He brought suit for the purpose of having the assessments made against these companies, and against himself personally, annulled.

The following are the assessments made, to-wit:

Money loaned on interest, all credits and all bills re- Money inposceivable for money session, on loaned or advanced deposit or in wiurgwus ayiu. niuiu.
William M. Bailey, or Western Assurance Oo.......................$5,000 $500
Maine Ins. Oo. of London....................................•............................ 12,500
State Investment Ins. Oo........................................................ 2,500 .........
Boston Marine Ins. Co........................................................... 1,000 1.500
Niagara Fire Ins. Oo............................................................... 1,500 '500
St. Paul’s Fire and Marine Ins. Co.......................................... 8,000 1,000
Wm. M. Bailey............................................................................ 1,000 .........

The point raised by the plaintiff, in so far as he is concerned personally, is that there was against him, individually, another and entirely distinct assessment on his movable property, and that he has paid the tax levied upon that assessment, in which was included his personal property, cash and open accounts.

It is manifest from the assessment that, as relates to the said plaintiff, he is sought to be held for taxes as agent, or individually only, in so far as it might be disclosed that he is personally interested in the business of these companies.

It is not shown that he has a taxable interest in the property of the companies he represents.

The points raised by the plaintiff companies are that, as they are non-residents, the said assessments, if they represent uncollected premiums due, would be assessment of debts due to them as such, only taxable at their domicil.

The other grounds of defence are: that the assessments are alternative and conditional, and not positive and absolute.

That the said assessments are attempts to levy a tax upon income.

That the said companies did not have in this State the moneys or effects thus asssessed to them, nor any part thereof.

The first and the last grounds will be considered and decided.

The record discloses that plaintiff is the agent of the companies assessed, and that as such he is authorized to represent them in judicial proceedings in this State, as required by Act of 1877.

He is empowered by them to solicit and place insurance for their account; and to collect and remit premiums to the home offices.

He sent to his principals every month, a statement of the .policies issued the month previous, and he remitted the amount due upon said policies in advance of collection; he is obliged to remit the pre-' miums to the companies whether collected or not. Timéis granted for his account.

The companies at no time had money loaned on interest, none in possession, on deposit or on hand and nene due for goods sold.

It is evident from the general movement of their business that they have “credits;” whether they had at the time the assessment was made, it is immaterial to determine.

The question for our consideration is as to the possibility of taxing credits.

The judgment of the District Oourt maintains plaintiff’s demand and orders the said assessment to be canceled.

The] rule, mobilia personam sequuntur: This court has held that “debts and other incorporeal rights, when treated as property for the purpos of taxation, can be assessed only at the domicil or place of residence of the creditor, without regard to the domicil of the debtor. The principle applies to corporations as well as to natural persons. Hence debts due to a foreign corporation by residents of this State can not be taxed in this State.” Barber vs. Oity, 41 An. 1015; Meyer vs. Pleasant, Id. 258.

These decisions settle this point.

But counsel for the city claims that these decisions merely apply the general rules to the title of movable property following the owner in the absence of the statute of the State fixing the situs otherwise; and that they do not apply ¡in this case because the statute No. 106 of 1890, under which the taxes claimed are levied, specially authorizes the taxation of “credits” held by non-residents and that rules of comity must yield to express law.

This is sound and conclusive in so far ; s relates to corporeal movables belonging to non-residents.

Such movables are subject to taxation.

An exception necessarily arises in so far as relates to certain incorporeal rights.

As to these the tax laws have no extra-territorial effect.

“ The power of taxation, however vast in its character and searching in its extent, is necessarily limited to subjects within the jurisdiction of the State. These subjects are persons, property and business. Whatever form taxation may assume, whether as duties, imports, excises or licenses, it must relate to one of these subjects. It is not-possible to conceive any other, though- as applied to them the taxation may be exercised in a great variety of ways.” 15 Wall. 300; 11 Allen, 268; 4 Woods, 206; 43 Maine, 497; 11 New York, 563.

“ Debts are not property. A non-resident creditor of a city can not be said to be, in virtue of the debt which it owes him, a holder of property within its limits.” Desty on Taxation, Vol. 1, p. 328-9; Murray vs. Charleston, 96 U. S. 432.

The statute relating to license for doing business in the State by foreign companies has been interpreted as legal.

The power is entirely within legislative control. The privilege was one subject to a license tax. State ex rel. Ins. Asso. vs. City, 43 An. 131.

But a tax imposed on “credits” of a non-resident is void, not being within legislative jurisdiction and power. London and Liverpool and Globe vs. Board of Assessors, 44 An.

Judgment affirmed at appellants’ costs.

On Application for Rehearing.

Fenner, J.

The taxes concerned in these cases are not taxes on business; they are taxes on property. We are not, therefore, concerned with the nature of the business of these plaintiffs, or where it was conducted.

The assessment conclusively determines the person and the thing taxed.

The following is the assessment-:

Money loaned on interest, all credits and all bills Money in posreceivable for money session, on loaned or advanced, or deposit or in for goods sold. hand.
William M. Bailey, or Western Assurance Co....................... $5,000 $500
Maine Ins. Co. of London............................................................. 12,500
State Investment Ins. Co......................................................... 2,500 ........
Boston Marine Ins. Co..................................................’.......... 3,000 1,500
Niagara Fire Ins. Co............................................................... 1,500 500
St. Paul’s Fire and Marine Ins. Co.......................................... 3,000 1,000
Wm. M. Bailey........................................................................ 1,000 .........

There is no dispute that the persons taxed are the foreign insurance companies which are domiciled out of the State.

It is conclusively proved that no one of them has any “money loaned on interest,” or “money in possession, on deposit or on hand,” or any “bills receivable for money loaned or advanced or for goods sold.”

Of the enumeration on the assessment roll, everything is thus eliminated except the single item of “credits;” and the evidence shows that these “credits” consist of nothing but debts due the companies for uncollected premiums.

The simple question presented to us was whether the State possessed jurisdictional power to tax such mere debts due to foreign creditors.

There is no doubt of the legislative power to modify the rule of comity, mobilia personam sequuntur, in many respects. Movables having an actual situs in the State may be taxed there, though the •owner be domiciled elsewhere. Even debts may assume such concrete form in the evidences thereof that they may be similarly subjected when such evidences are situated in the State, as in the case of bank notes, public securities, and. possibly, of negotiable promis-sory notes, bills of exchange or bonds.

But as to mere ordinary debts, reduced to no such concrete forms, they are not capable of acquiring any situs distinct from the domicil of the creditor, and no legislative power exists to change that situs •so far as non-resident creditors are concerned. As said by the Su.preme Court of the United States: “To call debts property of the •debtors is simply to misuse terms. All the property there can be in the nature of things, in debts, belongs to the creditors to whom they •are payable, and follows their domicil wherever that may be. Their •debts can have no locality separate from the parties to whom they ■are due.” State Tax on Foreign-held Bonds, 15 Wall. 300.

A State has no more power to subject such debts’ due to foreign creditors to taxation than it would have to tax their corporeal movables situated at their foreign domicil.

The authorities quoted in the original opinions are ample to support the conclusions reached, which are, besides, thoroughly founded in reason and justice.

Rehearing refused.


author: Fenner, J.

text:
    No. 11,057.
    The State of Louisiana ex rel. W. C. Abbott vs. A. W. O. Hicks, Judge, et al.
    1. Relator, prosecuted for a violation of Act No. Ill of 1890, requiring officers of railway companies to assign passengers to coaches or compartments set aside for the use of the race to which they belong, pleaded to the jurisdiction of the court on the ground that the person referred to in the information was an interstate passenger to whom the statute did not and could not constitutionally apply, and that the act charged was not, therefore, a violation of any law. A demurrer to the plea was not sustained by the respondent judge.

      2. Upon the facts presented on its face, the plea to the jurisdiction was good, and a demurrer thereto could not be lawfully sustained.
    3. The jurisprudence of the Supreme Court of the United States, which, in such a matter, is paramount authority, conclusively shows that such a statute isa regulation of commerce, which, though valid as applied to domestic passengers, is unconstitutional as applied to interstate passengers, being in violation of the exclusive right vested in Congress to regulate commerce between the States.
    4. The judgment sustaining the demurrer is pronounced null and void, and respondent is proh ibited from further proceeding until the plea to the jurisdiction is heard and determined on the merits.
    y^PPLIGATION for Prohibition and Certiorari.

      Percy Roberts for the Relator cited:
    The case of Pardee, 19 Central Law Journal, 330; the case of Gaylord, decided by the Supreme Court of Kentucky, 26 American Law Register, pp. 320, 359 and 312; the case of Tracy, decided by the City Court of New York, 67 Howard Practice Reports 154; the case of Steam, E. & A. Railroad Cases, Yol. 21, p. 443; the case of Carpenter, 3 R. R. Corp. Law Journal, 32; the case of Handy, 63 Mississippi, 609; the case of Whitney, 143 Massachusetts, 243 (also reported in N. E. Reports 619); the case of Searles, 45 Federal Reporter, 330; the case of Hills, 72 Iowa, 223; the case of Roy, 102 U. S. 451; and others too numerous to mention.

      J. Henry Shepherd, District Attorney, for the Respondent:
    1. Penal statutes, like all others, are to be construed as not to work an absurdity or defeat their own purpose, or to be eluded. The Carolina, 9 Wheaton, 381; Malone’s Criminal Briefs, p. 160,
    2. The police power of the States is always held to be within their control, not subject to interference from the national government. This power extends to the protection of the lives, health and property of the citizens, and to the preservation of good order and the public morals. Beer Company vs. Mass., 97 U. S. 25-33.
    3. For the purpose of carrying out a contract in carrying passengers by a railroad company, the conductor and porter of a sleeping car company whose car is attached to a railway train are, in law, servants and employes of the railroad company. Williams vs. Palace Car Company, 40 An. 417.
    4. Equality of accommodations does not mean identity of accommodations. Log-wood and Wife vs. Memphis & Charleston Railroad Company, 23 Federal Reporter, 318.
    The case of Hall vs. Decuir (5 Otto, 95 U. S. 490) does not decide that the States have no power to make regulations for separate accommodations for white and colored travelers, but does hold that carriers must furnish accommodations equal in quality and convenience.
    5. The Interstate Commerce Act provides the giving of any undue or unreasonable preference as between persons or localities or kinds of traffic, or the subjecting of any one of them to undue or unreasonable prejudice or disadvantage is declared to be unlawful. See First Annual Report of Interstate Commerce Commission, 1887, p. 10.

      6. Colored people may properly be assigned separate cars on equal terms. Sueli a separation of the races does not create undue prejudices or unjust preference. Council! vs. Western & Atlantic Railroad Company; Heard vs. Georgia Railroad Company; See points decided, Fifth Annual Report of Interstate Commerce Commission, p. 155.
    7. Act B of the Acts of the General Assembly of Louisiana, 1890, is an act to promote the comfort of passengers on railway trains. It is a police reguiation and does not discriminate, neither subjects any person to undue or unreasonable prejudice.
    8. Classification upon color docs not abridge any of the privileges or immunities of a colored man as a citizen of the United States, nor deny him the equal protection of the law of the State. Ward vs. Flood (1874), 48 Cal, 36; Roberts vs. The City of Boston (1850), 5 Cush. (Mass.) 198; State ex rel. etc., vs. Cincinnati et ais. (1850), 19 Ohio 178; Van Camp vs. Board of Education of the Incorporated Village of Logan (1859), 9 Ohio St. 406; People vs. Board, etc., of Detroit fl869), 18 Mich. 400; State ex rel. Stoutmeyer vs. Duffy et als. (1872), 7 Nev. 342; United States vs. Buntin (1882), ü S. C. Ct. S. D. Ohio, 10 Fed. Rep. 730.
   The opinion of the court was delivered by

Fenner, J.

Relator was prosecuted for a violation of Act No. Ill of 1890, entitled “An act to promote the comfort of passengers on railway trains; requiring all railway companies carrying passengers on their trains, in this State, to provide equal but separate accommodations for the white and colored races, by providing separate coaches or compartments so as to secure separate accommodations; defining the duties of the officers of such railways; directing them to assign passengers to the coaches or compartments set aside for the use of the race to which such passengers belong; authorizing them to refuse to carry on their trains such passengers as may refuse to occupy the coaches or compartments to which he or she is assigned; to exonerate such railway companies from any and all blame or-damages that might proceed from such refusal; to prescribe penalties for all violations of this act,” etc.

Relator appeared and filed, in limine, a plea to the jurisdiction of the court, coupled with a motion to quash the information, wherein-he alleged and set forth, in substance, the following facts, viz.:

1. That the act charged in the information was committed by him exclusively as an officer of Pullman’s Palace Car Company, in charge only of one Pullman car attached, to a train on the Texas & Pacific Railway Company.

2. That the negro, whom the information charged him with admitting into said car, was an interstate passenger, that is, a paasenger traveling from a point in the State of Louisiana to his destination in the State of Texas.

And upon these alleged facts he propounded the following propositions of law, viz.:

1. That the Act No. Ill did not, under its terms, apply to the Pullman’s Palace Oar Company, or to its cars, or to its officers or employees.

2. That said Act No. Ill was not intended to apply and did not apply to any passenger traffic or commerce except such as is carried on exclusively withiu the State of Louisiana, and does not embrace or cover the acts charged in the information, which related exclusively to an interstate passenger.

3. That if the said act should be held to apply to interstate passengers, then the same is null and void as violating clause 3 of Sec. 8 of Art. 1 of the Constitution of the United States, which confers upon Congress alone the power “to regulate commerce. with foreign nations and among the States and with the Indian tribes.”

The district attorney, on behalf of the State, met the plea and motion by a demurrer on the ground that “the matters therein set forth are insufficient in law;” which demurrer the respondent judge sustained and overruled the plea and motion.

The case being unappealable and susceptible of no other remedy, relator applies for relief by certiorari and prohibition, his right to which is not questioned by respondent and does not seem to admit of question. State ex rel. Walker vs. Judge, 39 An. 134.

For the purposes of the demurrer, the facts set forth in the plea stand as admitted.

As we said in the case just quoted, “if the law for the violation of which relators are being prosecuted is unconstitutional, then it is not a law and no court can have power or jurisdiction to arraign, try and punish a citizen who is not charged with the violation of law.”

We shall pretermit consideration of the first ground relating to the applicability of the statute to the Pullman Company, its cars and employees, which involves a mere question of statutory construction, and shall confine ourselves to those arraigning the statute as an unauthorized regulation of interstate commerce.

Thus considered, the case presents two sharply defined questions, viz.:

1. Does the statute appiy to interstate passengers or is it confined in its application to passengers traveling exclusively within the borders of the State?

2. If the statute does apply to interstate passengers is it such a regulation of commerce between the States as violates the exclusive power over that subject conferred on Congress by the Constitution of the United States?

These questions are so closely connected that they may be considered together.

The State of Mississippi has a statute which we have very carefully compared with the statute of Louisiana involved in this case, and find the two to be so similar as to admit of not the least distinction as to their true meaning and effect, except that the Mississippi act subjected the railroad companies failing to supply the separate accommodations required, as well as the conductor, to prosecution as for a misdemeanor and to fine in case of conviction. Under this provision a railroad company was prosecuted for failure to comply with the act, and it defended on the ground that the act was a regulation of commerce between the States and unconstitutional. The Supreme Court of Mississippi, in passing upon that case, held as follows:

“It is assumed by counsel for appellant that the act under consideration was intended to regulate not only the transportation of passengers taken up and set down within the State, but those taken up within the State to be carried without, those taken up without to be brought within, and those taken up without to be carried across the State and into other States.

“An examination of the record shows that the omission for which the indictment was found was the neglect to provide the ‘separate’ accommodation required by paragraph 1 of the act, and not for failing to assign to such separate car or compartment interstate travelers upon appellant’s train. We are not, therefore, called upon to determine whether the legislation in question would be valid if applied to persons other than those taken up within the State to be set down within it.

* * if: >f: * * * *

“We concede it to be settled, as stated by counsel for appellant, that transportation of persons is as much commerce as transportation of property, and as a corollary that the interstate transportation of persons is interstate commerce, and that the State may not regulate such commerce, since it is national in its character and requires uniformity of regulation. It may also be conceded that absence of legislation by Congress on the subject is indicative of its, will that such commerce shall be free and untrammeled. The question returns, whether the act under consideration is a regulation of interstate commerce, and upon its solution hinges the controversy.

* * * * Sfl * * 5*

“It is a matter of common knowledge that there are at present many State commissions for the regulation of State commerce, and one by the general government for the regulation of that between the States. Each occupies a field from which the other is excluded, and each is essential, or deemed so to be, to full control of the commerce of the country. By what authority can the transportation of domestic travelers be controlled, if not by that of the State? Congress has no jurisdiction over the subject, it being confined to commerce ‘ with foreign nations, and among the States, and with the Indian tribes.’ Suppose Congress should deem it advisable to enact a law similar to our statute for the regulation of interstate transportation of passengers, could it be contended that it controlled as to passengers taken up and set down within a State?

“ But how does the statute interfere with interstate commerce, if it be true that it has no application save to those traveling wholly within the State?”

The court proceeded to show that the duty imposed by the statute on railway companies to provide separate accommodations did not involve the necessity of assigning interstate passengers to such separate ears or compartments and therefore involved no regulation of interstate commerce, but might nevertheless be validly required for the separation of purely domestic travelers. And the opinion concludes as follows:

“ It would seem to follow that since the transportation of passengers and of property stand upon the same footing, regulations of property within State limits being valid,.regulations touching passengers of the same character, i. e., domestic travelers, are also valid.” Railway Co. vs. State, 66 Miss. 662.

This case was appealed to the Supreme Court of the United States, and that court, commenting on its, deoision. in the case of Hall vs. Decuir, 95 U. S. 485, said:

“ So the decision was by its teaming,eayefplly, limited tb those eases in which the law practically interfered with interstate commerce. Obviously, whether interstate passengers of one race should, in any portion of their journey, be compelled to share |their cabin accommodations with passengers of another race, was a question of interstate commerce, and to be determined by Congress alone. In this case, the Supreme Court of Mississippi held that the statute applied solely to commerce within the State; and that construction being the construction of the statute of the State by its highest court must be accepted as conclusive here. If it be a matter respecting wholly commerce within a State and not interfering with commerce between the States, then, obviously, there is no violation of the commerce clause of the federal Constitution.” Railway Co. vs. State, 133 U. S. 587.

The terms of the decision leave no doubt that the court regarded the statute as unconstitutional if applied to interstate passengers, and only upheld it because construed by the Supreme Court of Mississippi as applicable only to domestic passengers.

The case of Hall vs. Decuir, above referred to, involved a statute of this State, the act of February 23, 1869, which required carriers to give all passengers equal rights and accommodations without distinction of race or color, and the Supreme Court held that as applied to interstate passengers, it was an unconstitutional regulation of interstate commerce.

In another case that court applied like principles to a State statute relative to the carriage of goods, saying:

“ If the Illinois statute could be construed to apply exclusively to contracts for a carriage which begins and ends within the State, disconnected from a continuous transportation through or into other States, there does not seem to be any difficulty in holding it to be valid. For instance, a contract might be made to carry goods for a certain price from Cairo to Chicago, or from Chicago to Alton. The charges for these might be within the competency of the Illinois Legislature to regulate. The reason for this is that both the charge' and the actual transportation in such cases are exclusively confined to the limits of the territory of the State, and is not commerce among the States, or interstate commerce, but is exclusively commerce within the State. So far, therefore, as this class of transportation, as an element of commerce,'is affected by the statute under consideration, it is not subject to the constitutional provision concerning commerce among the States. * * *

“ It might admit of question whether the statute of Illinois, now under consideration, was designed by its framers to affect any other class of transportation than that which begins and ends within the limits of the State. The Supreme Court of Illinois having in this case given an interpretation which makes it apply to what we understand to be commerce among the States, although the contract was made within the State of Illinois, and a part of its performance was within the same State, we are bound, in this court, to accept that construction. * * *

“Of the justice or propriety of the principle which lies at the foundation of the Illinois statute it is not the province of the court to speak. As restricted to a transportation which begins and ends within the limits of the State it may be very just and equitable, and it certainly is the province of the State Legislature to determine that question. But when it is attempted to apply to transportation through an entire series of States a principle of this kind, and each one of the States shall attempt to establish its own rates of transportation, its own methods to prevent discrimination in rates, or to permit it, the deleterious influence upon the freedom of commerce among the States and upon the transit of goods through those States can not be over-estimated. That this species of regulation is one which must be, if established at all, of a general and national character, and can not be safely and wisely remitted to local rules and local regulations, we think is clear from what has already been said. And if it be a regulation of commerce, as we think we have demonstrated it is, and as the Illinois court concedes it to be, it must be of that national character, and the regulation can only appropriately exist by general rules and principles, which demand that it should be done by the Congress of the United States under the Commerce clause of the Constitution.

“The judgment of the Supreme Court of Illinois is, therefore, reversed, and the case remanded to the court for further proceedings in conformity with this opinion.” Wabash vs. State, 118 U. S. 557. See also Coe vs. Erroll, 116 U. S. 517.

These decisions leave no room for question that the jurisprudence of the United States Supreme Court holds such statutes as the one here presented to be only valid in so. far as they apply to domestic transportation of passengers or goods, and that, as applicable to interstate passengers or carriage they are regulations of interstate commerce prohibited to the States by the Constitution of the United States.

As to such purely federal questions the authority of that court is paramount, and we are bound to acknowledge and obey it.

The dilemma is thus presented that either the statute has no application to interstate passengers, or if it has, that it is, as to them, unconstitutional and void.

In either case, upon the facts presented on the face of the plea to the jurisdiction, the plea was good, and the demurrer thereto was wrongfully sustained.

But while the facts alleged are taken as true for the purposes of the demurrer, it does not follow that they will be established on trial of the merits of the plea.

Relator is simply entitled to a setting aside of the judgment sustaining the demurrer, and to a trial of his plea upon the merits.

It is therefore ordered that the judgment of the court below, sustaining the demurrer to the plea to the jurisdiction be declared null, void and of no effect, and that the writ of prohibition herein issued be modified so as to prohibit the respondent from further proceedings herein until after trial of the plea on its merits and judgment thereoD, and as thus modified it is now made peremptory.


author: Watkins. J.

text:
    No. 10,981.
    State of Louisiana vs. F. Bildstein, P. J. Kelly and Alexander Caruthers.
    . The discretion of a trial judge in dealing with motions for new trial, on the the ground of insufficiency of the evidence administered to justify the verdict, will not be interfered with unless it clearly appears to have been exercised in an arbitrary and unjust manner.
    2. A motion in arrest of judgment, alleging an indictment to be bad, because it is not wholly written, can not be maintained, as such an averment does not go to the substance of the charge, but is directed against the form of the indictment.
    8. In case a demurrer has been filed and disposed of, antecedent to trial, and no bill reserved, questions which could have been raised and decided on such demurrer are conclusively set at rest.
    APPEAL from the Criminal District Court for the Parish of Orleans. Marr, J.

      W. H. Rogers, Attorney General, for the State, Appellee.

      A. D. Henriques for Appellants:
    Where the motion for a new trial presents mixed questions of law and fact, and a bill of exception has been retained to the overruling of the motion, and the evidence offered on the trial is embodied in the bill or annexed thereto, the Supreme Court will consider and determine it. State vs. Green Red, alias Green Redding, 32 An. 819; State vs. Nelson, 32 An. 842; State vs. Cyrus Hudson, 32 An. 1052; State vs. Sylvester Miller, 36 An. 158.
    Witnesses are to be examined only as to matters of fact within their own knowledge, whether they consist of words or actions. Inferences, or conclusions which may be drawn from facts, are ordinarily to be drawn by the jury alone “except when the conclusion is an inference of skill or judgment.” Greenleaf on Evidence, Vol. 1, Secs. 434, 410; Taylor on Evidence, Vol. 2, Secs. 1414 and 1415; Wharton Crim. Evidence, Secs. 455, 456 and 457; State vs. Ross, 32 An. 854; State vs. Parce, 37 An, 268.
    A witness can not be cross-examined as to any fact which is collateral and irrelevant to the Issue, merely for the purpose of contradicting him by other evidence. Greenleaf on Evidence, Vol. 1, Sec. 449; Taylor on Evidence, Vol. 2, Sec. 1435; Wharton Crim. Evidence, Sec. 484.
    In Louisiana, the forms of indictment, the method of trial, rules of evidence, and all other proceedings in the prosecution of crimes must be according to the common law of England as it existed in 1805, unless otherwise provided. Acts of 1805 and 1855; R. S , Sec. 876; 8 R. 545.
    An indictment is “A written accusation of one or more persons, of a crime or misdemeanor, preferred to and presented by a grand jury upon oath ” Blackstone, Vol. 4, See. 302; 2 Hale, 152; 1 Chit. Cr. Law, 168; Bouvier’s Law Dictionary, Vol. 1 verbo “Indictment;” American and English Encyclopedia of Law, Vol. 10, title “'Indictment;” Bishop Crim. Pro., Vol. 1, Sec. 181; Wharton Crim. Plead, and Prac , Sec. 86, p. 87; Com. vs. Tarbox, 1 Cush. 66.
    The caption forms no part of an indictment and is not essential to its validity, Territory vs. McFarlane, 1 M. 221; State vs. Kennedy, 8 R. 590; State vs. Marion. 15 An. 495; Wharton Crim. Plead, and Prac., Sec. 91,1; Bishop Crim. Pro., Sec. 661
   The opinion of the court was delivered by

Watkins. J.

The accused defendants were indicted and convicted of the crime of libel, and were each sentenced to pay a fine of five hundred ($500) dollars and suffer imprisonment in the parish prison for a term of six months; and from this sentence and decree they have appealed, relying on an exception taken to the ruling of the trial judge, declining to grant them a new trial, and on oar refusing to sustain their motion in arrest of judgment.

I.

The motion for a new trial is quite elaborate and contains a full and complete résumé of the facts adduced at the trial, by the witnesses, upon which the complaint of the accused is predicated, viz.: “That the jury who tried this case disregarded the evidence offered by these defendants, and did not consider said evidence in arriving at their verdict,” etc.

Prefatory to the foregoing conclusion is the statement “thatthe said verdict is clearly contrary to the law and the evidence; that the evidence and the testimony of the witnesses for the State did not establish, beyond a reasonable doubt, the truth of the charges as contained in the bill of indictment herein presented; and that the jury withheld from the accused the benefit of said reasonable doubt, upon the evidence heard upon the trial, and which reasonable doubt should have been given them by said jury,” etc.

The trial judge assigned no reasons for refusing the application, and none are recited in the defendant’s bill of exception. And there are none apparent upon the face of the motion, including the evidence that purports to have been incorporated therein. It presents a simple question of the sufficiency of the evidence upon .which the jury found and rendered their verdict; and of which the only complaint defendants make is that the evidence adduced did not establish, beyond a reasonable doubt, the truth of the charges preferred against them in the indictment, and that the jury withheld from them in their deliberations the benefit of that reasonable doubt, to their prejudice and injury.

It seems perfectly apparent to us that this was a question for the trial judge, exclusively; one in the decision of which he is given, by law, a sound legal discretion, because he presided at the trial, saw and heard the witnesses testify, and was fully capacitated to judge of the sufficiency vel non of the testimony, as a whole, to warrant the finding of the jury.

While it is equally correct, as matter of law, for this court to examine testimony annexed to and brought up with a bill of exceptions, for the simple and only purpose of determining a question of law — which in this ease happens to be an alleged misdiscretion of the trial judge — our opinion and decree must rest upon the act of the judge in determining the question presented, and must decide, not whether the verdict of the jury was erroneous, but whether the trial judge’s ruling was obviously and manifestly incorrect in holding that it was not.

In State vs. Donald, 44 An., we held as follows, viz.: “ In the rejection or disallowance of a new trial, particularly in a case resting upon the sufficiency of the evidence administered at the trial to justify a conviction, much reliance must be placed upon the discretion of the trial judge; and his rulings will not be reversed except in very clear cases of error.”

In State vs. Beck, 41 An. 584, we said that the action of the district judge in refusing a new trial would “not be reversed in the absence of a showing that (he) had abused his discretion, to the detriment of the accused.”

In State vs. Dunn, 41 An. 610, we said “ the discretion of trial judges in dealing with motions for a new trial on the ground of newly discovered evidence, even to the extent of their refusing to believe the affidavit of an alleged newly discovered witness, will not be interfered with on appeal, unless it clearly appears to have been exercised in an arbitrary and unjust manner.”

In State vs. Deschamps, 42 An. 567, we held that this court “will not revise the refusal of the lower court to grant a motion for a new trial, based solely on an alleged deficiency of evidence to make out a case.”

In State vs. McFarlane, 42 An. 803, we held that “the granting of new trials, on the ground that there was an insufficiency of evidence before the jury to justify a conviction, rests in the sound legal discretion of the trial judge, and its exercise will not be disturbed, except for grave and serious reasons assigned.”

We feel quite sure that no such reasons are assigned in the motion under consideration, as there is no pretence of the trial judge having exercised the discretion vested in him, in an arbitrary or unjust manner. The motion was correctly denied.

II.

The motion in arrest of judgment avers (1) “that the indictment, and all matters had therein, on said indictment, are absolutely null and void in law. That there is no legal and proper indictment herein found by the grand jury; ” and (2) “that what purports to be the indictment herein is of no legal efficacy and value in law, for this: that the indictment herein is not a written accusation on oath by a grand jury, but that, instead of being a written accusation, the pretended indictment herein is a formation of words on paper, by means of a stamp, and is not written, as is required by law,” etc.

This objection is evidently an afterthought, framed by counsel who appeared for the accused after the trial and conviction of the accused, and is altogether without merit, as it does not go to the substance of the charge against the accused; but is directed against the form of the indictment. Had the accused desired to avail themselves of any possible advantage that might accrue to them^on that account, they should have filed, in limine, a motion to quash the indictment, and having failed so to do, the defect, if any, was cured.

The judge in assigninghis reasons for refusing to sustain th'e motion and arrest the judgment stated that the charge in the original indictment was in writing, but that the newspaper article, which is alleged to have constituted the libel, was a clipping from the journal in which it was first published, which was pasted into the body of the indictment; hence it is manifest that the defendants’ complaint is of this printed matter being in the indictment, and not that the matter constituting the libellous article was not physically incorporated into the indictment at all. <•

Even if the question be deemed a proper one for our consideration, it seems to be clear that the complaint is without merit.

The case of Commonwealth vs. Tarbox, 1 Gushing, 66, cited by our learned brother of the district bench, seems to be apposite, and sufficient authority for his ruling.

That was a case of libel, and the indictment contained a printed copy of the alleged libellous publication, just as the indictment in the instant case does, with this distinction, that in the case of Tarbox there was no averment in the indictment to the effect that the printed extract so attached “is in the very words of the publication ” and on that ground the indictment was held defective and void.

But the averment of the indictment in this case declares that the defendants unlawfully did write, print and publish a certain false, scandalous and maliciously defamatory libel of and concerning one Mistress J. H. McFarlane, which said libel is as follows, that is to say, ” etc. And immediately succeeding that averment is the article which was clipped from the newspaper, accompanied by cuts and illustrations. Then the indictment is thus concluded, viz.:

“ And the grand jurors aforesaid, upon their oaths, do further present that at the time the said defendants (naming them) wrote, printed and published the said false, scandalous and maliciously defamatory libel, they * * knew the same to be false.”

The language of the indictment, viz.: “did -write, print and publish a certain false, scandalous and maliciously defamatory libel * * * which said libel is as follows," with the article physically incorporated into the indictment itself, appears to have been the best possible mode of exhibiting the corpus of the libel to the attention of the court and jury; for it was the identical thing itself. No mere written words could have so fully and distinctly portrayed the enormity of the of-fence charged as the printed article that had been first written, and then published to the world, accompanied by cuts and illustrations. In that form its complete identity could have been easily established by comparison made with the files of the newspaper establishment.

But if there were any doubts of the correctness of this proposition, it would be a sufficient answer to the motion in arrest that the defendants appeared and filed a demurrer, preliminarily, without mentioning the objections presently urged, and that demurrer was overruled and defendants’ counsel retained no bill of exceptions to the ruling; and the consequence is, that, in so far as concerns matters of form, that demurrer and the ruling thereon are necessarily fatal to present pretensions. The motion in arrest was correctly denied.

Judgment affirmed.


author: McEnery, J.

text:
    No. 10,035.
    The State of Louisiana vs. Willie Taylor.
    Sec. 3, Act 44 of 1877 requiring the order of the judge appointing jury commissioners to be recorded in the minutes of the court is directory only.
    A motion to quash the venire for the second and third weeks of the term will not prevent the arraignment of the accused, as the validity of the indictment is not at issue.
    To justify evidence of dangerous character of deceased, it must be shown that he made a hostile demonstration against the accused at the time of the homicide.
    Irregularities in drawing the jury will not be sufficient to set aside the venire unless it is shown that some fraud has been committed or wrong done the accused.
    A letter and invoice handed by a deputy sheriff to one of the jurors and first read by him'will not be ground for a new trial.
    A member of a municipal council is not a State officer and the acceptance of the position of member of said council will not vacate the office of jury commissioner. The holding of the two offices is not incompatible and does not violate Art. 159 of the Constitution.
    APPEAL from the Twenty-fifth District Court, Parish of Lafayette. Mouton, J.

      W. H. Rogers, Attorney General, for the State, Appellee.

      Wm. Campbell, L. L. Tansey, G. Girard and Jos. A. Ghargois for Appellants.
   The opinion of the court was delivered by

McEnery, J.

The defendant was indicted for murder, tried and convicted for manslaughter, and sentenced to the penitentiary to seven years’ imprisonment, from which judgment he has appealed.

He filed motions to quash the indictment and the venire drawn for the second and third weeks.

The two motions are based on the same grounds and supported by the same evidence.

1. That the persons who acted as jury commissioners had no authority to act in that capacity, having never been appointed, and if appointed no record was made of the fact in the minutes of the court, as required by Sec. 8 of Act 44 of 1877.

The jury commissioners were duly appointed by the judge, out of term, and an order rendered for the appointments to be spread upon the minutes.

The clerk omitted to perform this part of his duty. This omission can not destroy the fact of the appointments, and render null and void the act of the judge in making them. Section 8 of said act is only directory. 5 An. 155.

The appointments of these commissioner's by the judge, the “oath book,” to show that the commissioners had qualified, and the proees verbal of the venire that they had acted as commissioners, were offered and received in evidence over defendant’s objection, which was that the best and only evidence of the appointments was the minutes of the court.

As the recordation in the minutes of the court was only directory, and, as said above, its omission could not destroy or do away with the fact of the appointment, the commissioners appointment and oath of office were the best evidence of their official capacities.

The venire was corroborative to show that they had accepted the appointment and had entered upon the discharge of their duties.

2. That one of the said jury commissioners, who participated in the drawing of the jury, was disqualified to act, as he had been elected, and had qualified since his appointment as jury commissioner, as a member of the town council for the town of Lafayette.

Article 159 of the Constitution provides that “ no person shall hold or exercise at the same time more than one office of trust or profit, except that of justice of the peace or notary public.”

In the Constitution of 1845 there was an article of similar import, as follows: That no person shall hold or exercise at the same time more than one civil office of emolument.”

In interpreting this article in the case of Dorsey vs. Vaughn, 5 An. 155, the court held that the acceptance of the office of parish tax collector by the sheriff did not violate said article, as the office of parish tax collector was a municipal office, and that the incompatibility contemplated by the Constitution was the holding of two State offices.

In the Constitution of 1852 there was a similar provision, and it was held by this court that a police juryman was not an officer within the intendment of Article 122.

Since then in recent years police juries have been made State officials by legislative enactment. They are appointed by the Governor and our decrees have recognized them as such, and in 29 Annual, 24, and 42 Annual, page 947, we held that the acceptance of the office •of police juror by one holding the office of jury commissioner, vacated the latter office.

If the office is created by the Legislature, or is established in the first instance by the Constitution, it is a State office, and the holding at the same time two offices so created would manifestly violate Article 159 of the present Constitution.

Conceding that the member of a municipal council (upon which point we express no opinion) is an officer, it is not a State office, and the Article No. 159 can have no application, as it has reference only to holding at the same time two State offices.

3. That the jury commission failed to comply with the provisions ■of Act 44 of 1877 in not striking from the general venire list the names of those persons who had served at the last jury term, and the names of those who had served as jurors one year preceding the term of court. In not striking from the list the names of those who had died, or who had removed from the parish, become exempt or disqualified to serve as jurors since their names were placed on the list, and that the names of said persons were not taken from the general venire box and supplemented by others, keeping the original number up to the standard of 300 names. That the general venire box in which the slips or ballots are required to be kept was not locked and sealed. That the names of the jurors drawn, together-with the residence, were not written by the clerk or in any way-authorized by him.

This summary of omissions contains the evidence of irregularities. There is no evidence to show that fraud has been practised or-any wrong committed in the drawing or summoning of the jury that “would work a great and irreparable injury to the defendant.” State vs. Green, 43 An. 402; State vs. Simmons, 43 An. 991; Sec. 10, Act 44 of 1877; State vs. Willie Taylor, 44 An.; State vs. McCarthy, 44 An.

After the motion to quash the venire for second and third weeks-was filed, the motion to quash the indictment having been- disposed' of, the district attorney requested that the accused be arraigned. Counsel for accused objected, and the arraignment was ordered.. The validity of the indictment was not attacked, and there could,, therefore, be no objection to the arraignment.

Complaint is made to the rejection by the trial judge of testimony to show the character of the deceased.

It appears from the statement annexed to the bill made by the trial judge that deceased was making no demonstration whatever-when he was attacked by the defendant, who had no grounds to believe that his life was in danger.

The defendant filed a motion for a new trial, charging misconduct on the part of the jury in two instances.

(1) That one of the jurors received letters and papers, and (2) for holding conversation with one C. H. Bradley. There is no evidence to establish any conversation had with the jury by Bradley. The conversation was with the deputy sheriff, in such a tone of voice that the jury could not hear it.

There was no reason then why the deputy sheriff should be made to disclose a conversation that had no reference to the trial, and which-was not heard by any juror.

The statement of the facts in the first ground alleged will dispose-of the objection.

Levy and the juror were partners.

The partnership had bought at auction a lot of shoes in New Orleans. The letter advising the purchaser to inspect the invoice for-correction, and the invoice and letter, through a deputy sheriff, were handed to the juror. The trial judge being near the jury room,. ordered the papers immediately to be delivered to him, which heturn6d over to Levy. The deputy sheriff had read the papers before-delivering them to the juror, who had them but a short time. Levy had no conversation with the juror.

Judgment affirmed.


text:
    No. 11,020.
    T. J. Sullivan vs. New Orleans Stave and Heading Company, Limited.
    A company having purchased the materials, and having paid the expense of putting up, at its risk, a patented device or machine, has no claim against the patentee for its costs, it not being established that he assumed any responsibility, or made any promise to the company.
    An employe who continues under a contract which stipulated that he was to receive 10 per cent, of the net profits of the defendant company as a salary for his services at the end of each year, can not recover on a quantum meruit (for if it was for the year) there was reconduotion of the contract on the same terms and at the same salary.
    APPEAL from the Civil District Oourb for the Parish of Orleans. Monroe, J.

      W. W. Handlin for Plaintiff and Appellee.

      Carroll & Carroll for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

The minutes of a directors’ meeting of the defendant company disclose that on the 21st of June, 1889, the plaintiff was employed as its manager, in the manufacture of “headings.”

The purpose of the company, as expressed in its charter, was to manufacture “headings,” with power, under its said charter, to manufacture staves also. He was manager for the defendant from the said date to some time in 1891.

The board, at the said meeting, ordered “that at the end of each business year a trial balance be taken, and after all the indebtedness shall have been paid he, the said T. J. Sullivan, is to receive-10 per cent, of the net profits, as salary to him for services rendered.”

There was no settlement made at the end of the first year of the company’s operations.

The plaintiff still continued to manage, under the impression, he testified, that the agreement was no longer effective at the end of the first year in so far as related to the 10 per cent, of the net profits.

The defendant company refers to the minutes and to the testimony of its witnesses, as proving that the agreement, as to the salary, was not made for the first year, but for all time of plaintiff’s employment.

The plaintiff proved, to which proof the defendant did not object., the value of his services rendered after the expiration of the first ■year.

He had an embankment built the first year, which he alleges was a permanent improvement and constitutes a part of defendant’s net profits, on which he claims 10 per cent, as such.

He alleges that it is worth $3000, and that it has added that much value to the company’s assets.

The testimony shows that the cost of the building of this embankment was about $300.

It is also shown that plaintiff paid car fare of himself and other employés of the company, for which he claims $400.

That he kept a horse and buggy for his use and that of the company, for which he claims §200.

That he had a credit of $777.41 on the books of the company, part of an account in which a larger amount is claimed of him.

He alleges in his petition that the commission of 10 per cent, net profits, his services for the second year and two months, the use of the horse and buggy, and car fare paid, together with the sum to his credit on the defendants’ books, amount to $3177.45.

The defendants in their answer reconvene and claim $1602.56.

They admitted on the trial the said credit of $777.41, and contend that the sum of §825.15 is due them by the plaintiff.

They also set forth that the plaintiff constructed for the company a “stave forming” machine of his invention, which was used in bending barrel staves.

That he wantonly destroyed this machine, and thereby caused loss in the sum of $3000, its value, and $10,000 in profits, that would have been realized.

That the principle of the device or machine was known only to the plaintiff.

The plaintiff answered defendants’ reeonventional demand and admitted that the sum of $1016 had been expended by defendant in experiments with the said device, but alleges that the members of the company became dissatisfied and did not comply with their agreement. That he was directed by the president of the company to take down the experimental plant and take it out of the way. That the materials were laid away, and are still in the possession of the defendants.

The evidence with reference to the “stave former” is conflicting.

The plaintiff was the patentee of a machine for “ bending staves” which he had agreed to erect at a cost not to exceed $1200, to be paid by the defendant.

It was to be used by the defendants.

The plaintiff put up this machine at the expense of the company.

The president of the company testifies that they assumed the risk in order to ascertain if there was anything in the device or machine; that if it proved successful they were to operate it in the interest of the company.

It did not prove satisfactory. The parties interested considered it a failure.

It was taken down and stored away. It is now in the possession of the defendants.

About the time it was taken down another company was formed and another machine was constructed on the model of that of the defendant company.

It operated satisfactorily and gave considerable value to the second company.

The defendants contend that they were not fairly treated by the plaintiff, in that he did not furnish them with a statement showing the capacity of the machine and that he failed to explain its advantages to them, in bending and forming cottonwood staves.

The records do not disclose any attempt at concealing on the part of plaintiff.

The judgment appealed from rejects plaintiff’s demand at his cost.

And rejects defendants’ reeonventional demand at their costs.

The defendants appeal.

On appeal plaintiff prays that the judgment of the lower court be affirmed in those points favorable to him as appellee and reversed as to those against him.

We will, in the first place, consider the pleas presented by the defendant company in their reconventional demand:

1. That relating to the device or machine and the claim of costs of putting it up, viz.: $1073.39.

The value of the materials taken down, as before mentioned, and laid away on its owners’ premises, has not been proven.

The defendants claim these costs without having offered to return these materials.

If it had the right to these costs it could not recover them without, at least, making a tender of the machinery. The patentee’s skill was not mentioned at the time that it was determined to test the usefulness of this device, nor does it appear to have been a motive in making the experiment.

The company did not own the patent — only the machine, which they now have.

If it did not work satisfactorily, under the conditions of the purchase of the materials, the plaintiff can not be held for their cost.

They were bought for defendants’ account, without guarantee or promise of success.

If there is loss, it is their loss.

The only remaining claim in the reconventional demand is that of .$1602.56.

Plaintiff admits that certain advances were made to him on his personal account.

It does not appear of record that he disputes the account. The balance claimed on this account, as before mentioned, is $825.15.

In a statement of the condition of the defendant company, dated March 8,1890, the “ liabilities ” contain one sum of $290.91; whether it is included in a larger amount on the account lettered “A,” amounting to $1602.56, as just stated, does not appear.

Plaintiff has worked more than two years as manager of the defendant company, for which he was to receive 10 per cent, of the net profits.

At the end of the year, not having notified the defendants that he did not intend to continue his services; as manager under the resolution of the board of directors; for the said commission, it is not -possible for him to recover on a quantum meruit, as there was a recon■duction of the contract on the same terms and at the same salary. -86 An. 680; 41 An. 807.

It is proven that the company has realized net profits.

The plaintiff, under his management, has built an embankment, with material that would otherwise have been lost, which has added ■value to the company’s assets.

He should recover a commission on this added value; the amount ■of this value also is not proven.

The use of the horse and buggy, for part of which no payment has been made, and the alleged payment of $400 to employés, are not proven.

These claims do not recommend themselves as the basis for a judgment for amount claimed.

Relative to the first, the horse and buggy, plaintiff states that it was not his intention to charge at the time of the use.

The second is not supported by any definite evidence as to the total paid, nor as to the service for which it is stated payment was made.

While we do not decree that plaintiff has a right to recover a particular sum on each of these claims, the facts of the case do not justify the conclusion that defendants should recover their claim.

The respective rights of the parties are about evenly balanced.

The only item which presents difficulty is that of $825.15.

The services rendered and the disbursements made by plaintiff (although the amount of each claim is not sufficiently shown) is sufficiently evident to justifiy the conclusion that the defendants should not recover judgment in reconvention, even without considering certain items of the account filed by it, which of themselves materially reduce, if they do not defeat, defendants’ demand in reconvention.

This was the conclusion of the district judge; it is also ours.

Unless error be shown the conclusion of the district judge on an issue of facts will not be reversed. 87 An. 628.

Plaintiff’s claim is rejected, also that of the defendants in reeonwention.

Judgment affirmed at appellant’s costs.


author: McEneby, J.

text:
    No. 10,794.
    E. M. Lefebre vs. D. Negrotto, Jr.
    The sale by the State of property upon -which the taxes have been paid is an absolute nullity.
    The tax payer can not be held responsible for the errors of the tax collector who credits the payment of the tax to another piece of property owned by another person.
    When the tax payer has paid the tax he is not requiicd to malte a tender to the purchaser at tax sale before he brings suit to set aside the sale.
    PPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Moise & Cahn for Plaintiff and Appellee.

      Chas. F. Claiborne for Defendant and Appellant.
   The opinion of the court was delivered by

McEneby, J.

This is a suit to set aside a tax sale.

There was judgment for the plaintiff and the defendant has appealed.

The property in dispute was sold for an alleged unpaid tax due the State for the year 1883, by the State Tax Collector under Act No. 80 of 1888.

The plaintiff owns two pieces of property, Nos. 193 and 195 Caron - delet street.

He owned the latter previous to his acquisition of the former, which it adjoined, and it was assessed in his name.

He acquired the other piece after its assessment to one Trisconi, for the tax due in 1883.

Plaintiff’s agent went to the State Tax Collector’s office for the purpose of paying the taxes of 1883. He took with him the deed to the property No. 195 and told the tax collector to whom he exhibited the deed, and who examined the same, that he wished to pay the taxes on both pieces of property owned by plaintiff.

The receipt for. No. 195 was correctly given, but for the other piece of property it recited the payment to have been made by Jos. Colvis. The exact amount of the tax due on that piece of property was paid. The tax collector credited the payment to Colvis, who owned property in the same district, but on the receipt the clerk or deputy collector noted the payment as having been made by plaintiff’s agent. It was the intention of plaintiff’s agent to pay the tax on both pieces of property and he in fact did pay the taxes due. The error in stating in the receipt that the tax was ‘ ‘received of Jos. Colvis” can not deny the fact of actual payment.

The property was afterward assessed in the name of plaintiff, and has never been out of his possession, and he has regularly and promptly paid all taxes on it since the assessment to him. The plaintiff having paid the tax due on the property, he was not required before bringing suit to tender that which he did not owe.

To state reasons at length why the sale is an absolute nullity would serve no useful purpose.

The State has no title to the property and therefore could not sell it under said act.

In the language of the District Judge “to maintain defendant’s title would be lawless confiscation.”

The defendant bought on the invitation of the State at public sale. He may have believed his title good, and this may have been his reason for annoying plaintiff’s tenants.

We do not think damages should be assessed against him for asserting acts of ownership, although they may have been irregular, and to some extent annoying to plaintiff.

Judgment affirmed.


text:
    No. 11,015.
    W. S. Benedict vs. City of New Orleans.
    A foundry in ‘which “railing posts and bridges and such other things ” hre manufactured, and iron, brass and other metals are cast, is not exempt from taxation under the article of the Constitution exempting capital, machinery and other property employed in the manufacture of machinery or agricultural implements, unless they areusedinthe said manufacture of machinery or implements.
    It is not proven that one of the articles enumerated was employed in the manufacture of machinery or agricultural implements. They are, therefore, not exempt. A foundry consists of works for the casting of metals; they are not necessarily employed in the manufacture of machinery or agricultural implements, as when railings, posts and bridges are made.
    The surrender of the power of taxation is never presumed.
    It will not be presumed, in the absence of evidence, 'that the foundry was usect for casting and moulding any other articles than those proven.

      APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Bernard MeCloskey for Plaintiff and Appellee.

      W. B. Sommerville, Assistant City Attorney, and Carleton Hunt, City Attorney, for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff is the owner of a lot on St. Louis street in this city.

It was occupied as a foundry from 1886 to the beginning of the year 1890, at which time the foundry was demolished.

It was advertised for sale for the taxes of 1886 and subsequent years, to and including the year 1891.

The plaintiff, in his petition for an injunction, alleges that the property was used as a foundry in which more than five hands were employed.

He claims exemption from taxation under Art. 207 of the Constitution, from which we extract the following: “There shall also be ■exempt from taxation and license * * * the capital, machinery and other property employed in the manufacture of machinery, agricultural implements, provided that not less than five hands are ■employed in any one factory. ’ ’

The facts are that plaintiff did own a foundry which was demolished as he alleges, in which castings were made for “ railings, posts and bridges, and such things.”

“ Iron, brass and other metals ” were cast and manufactured at the said foundry, and more than ñve hands were employed.

The judgment of the District Court was in favor of plaintiff, and the defendant appeals.

Machinery is defined as parts of a machine considered collectively, also as the combination of mechanical means to a given end, such as the machinery of a locomotive, or of a canal lock, or of a watch.

Machinery comprises different mechanical appliances, and is more •extensive in meaning than machine.

It does not, however, cover railings, posts and bridges, and such things.

They are not, in any respect, parts of machinery.

Plaintiff truly says that pig iron and scrap iron, and other materials, are used in the manufacture of machinery and of agricultural implements. This does not include the articles first enumerated, viz.: railings, posts and bridges.”

A foundry consists of works for the casting of metals.

They may be used in the manufacture of machinery and agricultural implements.

They may also be used in the manufacture of other articles such as those cast and moulded in plaintiff’s foundry.

It will not be presumed, because a foundry is operated, that other articles of property are cast, falling within the express terms of the exemption.

There are other castings of iron, brass and other metals in foundries which are not used at all in machinery or agricultural implements.

It was proven that the property manufactured was that which we have enumerated; no other was proven.

The right of taxation or any other sovereign power will not be held to have been relinquished unless the intention is expressed in terms too plain to be mistaken.” Hare’s American Constitutional Law, p. 664.

“ Taxation is an act of sovereignty to be performed so far as conveniently can be with justice and equity to all, and exemptions, however meritorious, are acts of grace, and must be strictly construed and every reasonable intendment must be made that it was not the design to surrender the power of taxation.” Desty on Taxation, p. 80.

Under the most liberal interpretation the works on the lot referred to were not exempt.

To obtain an exemption it must be shown that at least one of the articles cast at the foundry or manufactured at its forge, or at its turning lathes or mouldings, is employed in the manufacture of machinery or agricultural implements.

Affirmative showing is an essential. Company vs. Parker, 42 An. 1103.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided, annulled and reversed, and it is now de.creed that plaintiff’s demand be rejected at his cost in both courts.


text:
    No. 11,054.
    The State ex rel. H. N. Mize vs. J. P. McElroy, Returning Officer.
    The language of the statute relative to printed ballots expresses the legislative will. It is mandatory.
    The legislative intent must be taken as expressed by the words which the Legislature has used.
    The name of a candidate written on the face of an election ticket in lieu of the-name of another candidate printed on the ticket should not be counted in-ascertaining the result of the election.
    The Legislature has imposed a positive and absolute duty on the voter to cast a printed ballot.
    The statute, in that respect, is not subject to liberal construction.
    Where the meaning of the statute is clear, those upon whom compliance devolves have no right to engraft exceptions or make modifications, or depart from its plain letter.
    A fair consideration of the statute leads to the conclusion that the.Legislature intended compliance with the provisions in relation to printed ballots.
    APPEAL from the Tenth Judicial District Court, Parish of De Soto* Hall, J.

      E. W. Sutherlin and G. W. Elam for Plaintiff and Appellee:
    1. All the names of persons voted for shall be printed on one ticket of white paper of uniform size and quality. Sec. 4, Act 101 of 1882.
    2. Although the right of franchise is a sacred one, yet it is a right derived only from the Constitution and laws. The State has the legislative power to prescribe the mode of its exercise; and when a specific mode is so prescribed, the-right must be exercised pursuant to that mode, and not otherwise. Written ballots are without legal effect and should not be counted. See notes to p. 349,. Am. and Eng. Encyclopedia of Law, Yol. 6, and cases cited.

      Wm. Goss for Defendant and Appellant:
    Relator’s contention is that the votes polled for Crosby, being written and not printed, should not be counted, citing Act 101 of 1882. These votes werere- . ceived and counted by the commissioners of the election. Relator does not allege fraud, error or any other illegality. .He admits that Crosby received a majority of the votes cast, but claims that such votes were illegal because not printed. On the trial of the writ, a quo, the court sustained relator’s contentions and made the writ permanent.
    The judge, in his written opinion, assigned, in substance, as a reason for his decision, that Act 101 of 1882, being an amendment of Act 58 of extra session of 1877, is mandatory and not directory.
    This is in conflict with the reason and the law governing such cases. The purpose of voting is to ascertain the intention of the voter and the will of the majority, and where this is done without violating any prohibitory law, the-votes must be counted. Cooley’s Con. Lim. fifth edition, pp. 769, 770.

      Statutes being design ed to preserve the seoreey of the ballot, and to prevent fraud, intimidation and bribery, will generally be considered mandatory, and this will be so in all cases where the statutes provide that a ballot varying from the requirements of the law shall not be counted; but if this provision is lacking they should not be rejected if the variations are but trifling. American and English Ency. o£ Law, No. 6, Sec. 8, pp. 345, 349, note.l. McCrary on Elections. Sees. 190 to 19.3 inclusive.
    A ballot may be defined as “ a paper ticket, upon which the voter expresses his preference upon the question sxxbmitted at the election, by printing, writing or signs, or a combination of these methods of expression.” American and English Ency. of Law, No. 11, Sec. 2, p. 842,-note 2.
    Where the Constitution provides that all ballots should he fairly writtten, the term “written” moans expresses by means of letters, and printed ballots come within this definition. Ibid., p. 344, note 1. Cooley’s Con. Lim., fifth edition, pp. 760, 761; McCrary oxi Elections.
    A ballot east by an elector, in good faitli, should not be rejected for failure to comply with the law in matters over which the elector had no control. McCrary on Elections, Secs. 503, 508, 509, 511; 1 An. 366; 13 An. 301; 27 An. 507; 29 An. 614.
    Act 101 of 1882 is only directory, because it provides no penalty for any variance from its provisioxxs.
   The opinion of the court was delivered by

Breaux, J.

The relator sued out a mandamus against the re - - turniig officer of the parish of DeSoto to compel him to exclude sixty-seven votes cast for his opponent from his return to be made to the Secretary of State of the result of the election held on April 19, 1892, also from his count and compilation, and he prays that the said votes be decreed illegal and void.

The facts admitted are: that the relator, Mize, was a candidate for the office of justice of the peace of Ward 8 of DeSoto parish, at the said election.

That Ms name was printed, as a candidate for said office, on all the ballots cast in said ward, and he received fifty-nine votes.

That his name, as printed, was erased from sixty-seven other ballots cast, and the name of W. R. Crosby was written across the face ■of these ballots where his (relator’s) name was printed.

That the relator, at the time, objected to the counting of these ■written votes for Crosby, and that notwithstanding his written protest filed with the commissioners, these written votes were counted for Crosby, and count thereof was kept on the tally sheets, and returns thereof were made to the returning officer. It is also admitted that the office of justice of the peace of said ward, involved in this suit, is worth over two thousand dollars (§2000).

The question for our determination is:

Should a ballot cast be counted in ascertaining the result of art-election, on the face of which the printed name of a candidate was-erased, and the name of another candidate substituted in writing?

Udder the act of 1877, to regulate and maintain the freedom and purity of elections, and to punish persons for false, fraudulent or-illegal voting, the names of persons voted for were required to b& written or printed on one ticket.

* * * * sjc * * :H

The statute applying is: See. 23 of the said act was amended by Act 101 of 1882, as follows:

“That all the names of persons voted for shall be printed on one-ticket or ballot of white paper, of uniform size and quality, to be furnished by the Secretary of State.”

Legislative power over the forms of the ballot and manner of voting The right of suffrage being a political and not a natural right, it i» within the power of the State to prescribe how it shall be exercised.

The manner of voting, provided by statute, is one of the reasonable regulations.

The limitations imposed for the purpose of guarding against fraud, undue influence and oppression, and of maintaining the secrecy of the ballot, are within the legislative and police powers.

That the ballots shall be printed does not add to the constitutional qualification of the voter, and therefore falls within the general authority of legislative laws.

The legislative intent is clearly expressed.

In the first act, that of 1877, the words were “ the ballot shall be written or printed;” in the amending act “it shall be printed.”

The legislative will can not be misunderstood.

The intention of the Legislature should control absolutely.

When that intention is clearly ascertained, those upon whom it devolves to execute the statute have no other duty to perform than to-follow the legislative will.

While all the minute details of the statutes relating to elections-are not mandatory, they are mandatory in requiring that the ballot; shall be printed.

The positive requirement of the statute does not admit of its being-treated as merely directory.

By qualifying a statute as directory its requirement is avoided the intention of the Legislature, however plain, is defeated.

It is desirable that the Legislature should, declare in what respect they mean any particular provision to be void, in event of non-compldanee with its terms, and what consequence they intend shall result from non-compliance.

In. the absence of this great difficulties arise.

We are not willing, however, in the absence of such a declaration, to hold a law as directory in eases in which the intention of the Legislature is clearly and emphatically expressed.

We prefer a strict construction to the “extensive and comprehensive;” each has able advocates and many authorities in its support.

The grounds of objection urged on the part of the respondent, such as that the purpose of voting is to ascertain the intention of the voter and the will of the majority, and that a ballot cast by an elector, in good faith, should not be rejected for failure to comply with the law in matters over which he had no eontrol, if broadly and liberally applied, would defeat the object of the.statute relating to the printing of the tickets on a ballot of white paper, furnished by the Secretary of State, and would render ineffectual the provisions applying to the throwing out and not counting folded tickets, and even those relative to thejrequired certificate of registration, although the purpose of the law is well defined and clear.

* * * * * * *

Authorities: Oonstitutional and statutory provisions for the conduct of elections are either mandatory or directory, and a violation of mandatory provisions will avoid the election, without regard to the motivb, or the person guilty of the violation, and without reference to the result. Am. and Eng. Ency. of L., Vol. 6, p. 825.

In Rhode Island the law requires that each ballot shall be so printed as to give each voter a clear opportunity to designate by cross marks, in a sufficient margin at the right of the name of each candidate, his choice of candidates, and that each voter shall prepare his ballot by marking, in the appropriate margin or place, a cross opposite the name of the candidate of his choice, and that no voter shall place any mark upon his ballot by which it may be afterward identified.

The court decided that no mark other than the cross can be used; that it must be placed in the margin opposite the name of the candidate. American Dig. 1891, p. 1419.

In many of the States there are statutes prescribing the form of the ballots, the kind of paper, and prohibiting any marks, figures or devices by which one can be distinguished from another.

These statutes, being designed to preserve the secrecy of the ballot, and to prevent fraud, intimidation and bribery, will generally be considered mandatory. Am. and Eng. Ency. of L., Vol. 6, p. 349.

. Directions given by a sovereign in regard to a matter over which his power is conceded, would, according to the ordinary use of language, be held to involve, as its correlative, obedience. Sedgwick’s Statutory and Const. Law; p. 318, note.

These decisions maintain the principle that mandatory provisions not complied with in an election will result in its avoidance, without reference to motive or person.

In those States in which the ballots must be printed, and the name of the candidate designated by cross marks, the required marginal notes must be placed as required by statute.

That the voter should readily comply with the legislative will, is clearly expressed.

The voters who cast the sixty-seven ballots did not comply with the statute.

In an organized state of society the majority bind the minority by complying with mandatory laws in expressing the popular will.

Judgment affirmed at appellant’s costs.


author: Eenner, J.

text:
    No. 11,056.
    The State of Louisiana vs. William Ward.
    APPEAL from the Seventeenth District Court, Parish of East Baton. Rouge. Buckner, J.

      Walter H. Rogers, Attorney General, for the State, Appellee.
    Defendant and Appellant unrepresented in this court.
   The opinion of the court was delivered by

Eenner, J.

The record presents no bill of exceptions or assignment of errors, and a careful scanning of the proceedings discloses bo error.

The defendant, unrepresented by counsel, has addressed a letter to the clerk of the court full of protestations of innocence and of complaints of the proceedings. We have read it, but it discloses no matters within the cognizance of this tribunal under the record as presented.

Judgment affirmed.