text:
    No. 11,216.
    Succession of Blanche E. Dumbstre, on Opposition to the Administrator’s Account.
    The active mass of a partition should include a statement of all the assets of the succession and a statement of the amounts which each of the heirs owes to the succession.
    The husband, as head of the community, and not the wife, is responsible for rent of property occupied by him and his wife, who is an heir and has an interest in the property.
    APPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.

      Sanibola & Due ros for Opponent and Appellee:
    1. The active mass of a partition account must include all the assets of the common estate, from whatever source derived. E. C. 0.1349,1350,1355 to 1358 and 1398.
    2. Ordinary creditors of a sharer, their debtor’s privies, have no greater right than he in the partition of the common estate, 4 Toullier, No. 411; 1 Larombiere, p. 676 ; 4 Marcade, p. 398, and 5 Mareade, p. 181.
    3. Eonunciations are not presumed. 28 Merlin, Rep., verho renunciation, Sec. 3, No. 1; 2 Zachari®, p. 399.
    4. The mortgage of a co-owner’s creditor is transferred by law to the former’s share in the proceeds of the licitation. R. C. C. 1338, 1353; 38 An. 108.

      Louque & M’Gloin contra.

   The opinion of the court was delivered by

Breaux, J.

Alexis Dumestre and his wife acquired community property.

They left ten children; only two were of age.

Mrs. Alexis Dumestre survived her husband.

By a decree of court the community property was adjudicated to her at the appraised price of the inventory.

She became thereby the owner of eighteen-twentieths of the property, and the heirs of age of the remainder in indivisión.

The mortgage of the minors was fixed at $15,204.39.

Mrs. Dumestre died insolvent.

Arthur Gastinel became the tutor of the minors.

Subsequently, Bernard Maylie was appointed administrator of the succession.

The tutor filed a provisional account prior to Maylie’s appointment, in which he alleged that it fixed the status of the succession, and the privileges and mortgages due.

By this account it appears that the amount of sales by public auction made November 5, 1887, was $21,650; insurance stock $96.

The adjudication of one of the properties was not perfected; the amount of the sale was thereby reduced by $6225, leaving $15,521 as the balance for which the tutor was accountable.

He received, proceeds of this sale, in cash, $11,196; in mortgage notes, $4325.

Undfer the advice of a family meeting he retained the mortgage notes for the minors. He also retained furniture for them valued at $220.

After the debts had been paid there remained of the cash $3407.42, as per his account.

The administrator subsequently filed a final account, in which he charged himself with $11,030.55 realized from sales made under his administration, and other amounts received.

In this amount the liabilities under the heading of law charges amounted to..$1318 ii Taxes....................................................................................................................... 818 32
Insurance and repairs......................................................................................... 170 65
$2337 il

The minors are charged with the interest retained by the tutor, being a total of $9747.42.

Amount due the minors secured by mortgage.................................................$15,201 19
From sales of property mortgage placedlo their credit............................... 15,071 50
Balance (ordinary debt) due the minors................................................ $132 9d

Comparing the last account, that of the administrator, with the judgment of the court a qua, we discover no difference in so far as relates to assets and liabilities.

The assets in each are $11,030.55; liabilities, $2337.41.

Hypolite Begué, assignor of Guillaume Soulis, appellee, held a note of John B. Dumestre, one of the majors, for $700, endorsed by his mother.

As a guarantee of payment, the maker, Dumestre, mortgaged his interest in the said common property.

The account of administration was opposed in the lower court by the assignee of this claim: by Soulis, assignee of Begué, and][by Blanche E. Dumestre, wife of Moulledoux, the other heir of age.

The judgment of the court a qua allowed Soulis the full amount of his' claim, which then amounted to $985, with interest and cost, and a balance of $40.73 to J. B. Dumestre, and to Mrs. Moulledoux $1025, thereby increasing the amount of each by adding $594.90.

Prom the judgment two of the creditors and the administrator have appealed.

The opponents before the lower court ask that the judgment be affirmed.

Error in the Account op the Tutor.

The administrator, as appellant, interposes the objection that he can not be made responsible for property he has not received, and for which he says he can not bind the succession to account.

It is not sought to make the administrator responsible for the payment of amounts he has not received.

It is true that part of the amounts which figure in the account as amended by the District Court were received by the tutor and not by the administrator. Equalizing the share of each and deducting the indebtedness of those who owed certain amounts, his responsibility is not increased.

In the subsequent account, that of the administrator, the minors having previously received more than their portion, the major heirs claimed and were allowed an amount equal to that overpaid to the minors.

In a final account the heir’s indebtedness to his co-heirs should be settled. O. O. 1349.

The final account should include all sums each of the co-heirs has received. 0.0.1358,1356. Equality is the basis. 1229.

The tutor committed an error by crediting the minors with the whole balance in his hands. The major heirs did not abandon any of their rights to their portion.

The minors were correctly charged by the lower court’s judgmeno, sums retained for them by their tutor, to which they had no right.

The administrator has sufficient funds in hand to pay the amount due the major heirs and the ordinary claim.

The remainder remains to the credit of the minors.

Furniture.

Ooncerning the active mass it is in place to state that the amount of $220 is correctly charged, being an amount for furniture retained by the tutor of the minors under a judgment.

Rent.

A claim for rent against Mrs. Moulledoux was not allowed.

It was not error to reject this claim as not due by her.

It is not proven that she was the tenant of the property for which it is sought to compel her to pay rent.

The property was occupied by her and her husband, and the rent is due by the husband, the head of the community.

In Berthelot vs. Fitch et al., 44 An. 503, to which our attention is directed by appellant’s counsel, the donees, ordered to collate, were charged with rent on property donated to them. They owed collation and rents on the property. There was no question about the responsibility of the husband, and no defence was made on the ground that it was an indebtedness of the husband.

In the case at bar there was no collation ordered, and the wife specially defends against the claim for rent.

Administrator's Account.

We have before stated that there is no difference between the administrator’s account proper and that account as amended by the judgment of the District Court.

Each fixes the same balance to the credit of the minors, viz. $5323.50, secured by mortgage.

Ordinary creditors, $132.99.

Assets, less liabilities, amount to $8693.14.

Share of each heir, $434.68.

Of the account which precedes the administrator’s aecouht we have already noted that the major heirs were not allowed any interest in the assets.

The District Court remedied the error to some extent, but did not allow the full amount of the debts.

Amount ok Liabilities in First Account.

A major heir, and a creditor who represents the right of another major heir as owner, allowed the tutor to take possession of the prop-, erty, have it sold and exercise all the functions of an administrator.

Expenses were incurred under uhis administration, and privileges and mortgages are set forth on the homologated tutor’s account.

This major heir and creditor have admitted the amount in their brief, viz., $7793.58.

In addition they thave claimed the proceeds of the sale and the benefit of the administration.

Qui sentit commodum sentire debet et onus.

The administrator’s account shows a sum received of $800, previously debited on the tutor’s account, which must be deducted from the tutor’s statement of assets, appearing in his account, and from the liabilities, also $450, a sum reserved for taxes, for which the administrator gives credit.

Tlierefoi'o the assets are....................................................................................$16,741 50
The liabilities ................................................................................................... 7,304 48
Balance........................................ $0,436 Ó2
The interest of each oí the major heirs (1-20) on the tutor’s account equals...$471 65
The interest of each on the administrator's account proper............................. 434 82
Total.............................................................................................................$906 47
The heir and the assignee of the co-heir, also a major heir, together are entitled to.......................................................................................................$1,812 94
Amount heretofore allowed............................................................................. 2,050 38
Balance............................................................................................................$237 44

To be added to- the balance to be distributed among the ordinary creditors, i. e., $1318.66+$237.36=$1556.02.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by reducing the claim of Guillaume Soulis, assignee, to $906 (nine hundred and six dollars), and by rejecting the amount of $40.15, which is placed to the credit of J. B. Dumestre.

The amount to the credit of Mrs. Blanche Ernestine Moulledoux is also reduced to nine hundred and six dollars.

The balance, after reductions as just ordered, viz., $237.36, is added to $1318.66, balance in the judgment appealed from, making total of $1556.02 to be distributed pro rata among ordinary creditors, that is .369,942 on the dollar.

The judgment as amended is affirmed at costs of appellees.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 11,139.
    Board of Health vs. A. Nunez, Justice of the Peace.
    Mandamus will not issue to compel a justice of the peace to dispose of a prosecution for violation of a parochialpolice ordinance by fine or acquittal where the justice has disposed of the matter by commitment to the District Court.
    APPLICATION for Mandamus.

      Louque & MeGloin for the Relator:
    1. The violation of a municipal police ordinance is not a crime; hence a proceeding to impose the penalty assigned is not criminal, 4 An. 337; 2 La. 427; 43 An. 836; 41 An. 1112; 42 An. 272 ; 35 An. 1193.
    2. The Constitution of 1879 did not abrogate pre-existing legislation not in conflict with said Constitution.
    3. R. S., Sec. 2053, is still in force and confers upon the justices of the peace in. country parishes full jurisdiction as police magistrates, to enforce the municipal police ordinances of sueli parishes.
    4. Mandamus will issue to compel a justice of the peace to dispose of a prosecution for violation of a parochial police ordinance, by fining or acquitting, where such justice has sought to dispose of the matter by commitment to the District Court. High, Ex. Leg. Rem. Sec. 151; 34 An. 1178; 41 An. 42.
    5. The prosecuting witness in such a ease has a cause of action to demand a mandamus.

      Henry Ghiapella and Sambola & Huaros for the Respondent:
    Code of Practice, Arts, 837, 838, 830, 831; Constitution, Art§. 126, 86; Police Jury Ordinance, Secs. 1, 2, 3; Act No. 96, of 1880, Secs. 1, 2, 3, 4,p. 122.
    A mandamus can not be granted to compel the lower judge to render a certain decision; it is only where he refuses to render a decision that the writ should issue. 15 An. 113; State ex rel. vs. Judge; 17 An. 328; State ex rel. vs. Judge Louque’s Digest (Mandamus, 1 An. 2), p. 383.
    A mandamus does not lie to compel judges to reverse their judgments and render specific judgments in place thereof. It would be substituting the judgment of the appellate court to theirs, in an authorized proceeding. 34 An. 1016; State ex rel. Cupples vs. Judges; Taylor’s Digest (Mandamus, 1 An. 3), p. 460,
   The opinion of the court was delivered by

Breaux, J.

The defendants, residents of the parish of St. Bernard, are accused before the court of respondent, of violating an ordinance of the police jury of that parish, by operating a tripe cleaning and tallow factoi'y, at a place and in a manner which makes it a nuisance and detrimental to public health.

The affidavit against them was sworn to by the assistant sanitary inspector of the Board of Health of the State of Louisiana.

They were arrested under warrants issued by the said justice’s court, an examination was held, and they were committed to appear for trial before the District Court for the parish of St. Bernard, at the next criminal term, on each giving bail in the sum of $100.

The relator applies for a writ of mandamus.

The object of the writ is to .compel the respondent, justice of the peace, to proceed with and finally determine the issues presented; to either convict or acquit the parties charged.

The respondent has not refused to act, and has committed the accused to the District Court.

The District Court is seized with jurisdiction and has authority to try the case.

When jurisdiction is once obtained it will be presumed to continue until final decision.

A prosecuting witness who prosecutes in the name of the State of Louisiana” has no authority, in mandamus proceeding, to have a case sent back to the magistrate’s court, nor to have the order rescinded whereby they were committed for trial before a forum having jurisdiction.

The enforcement of the ordinance, in the manner proposed by the relator, would be the exercise of a police power.

The magistrate would be a police magistrate, not a committing one. Police Jury of‘Jefferson, Right Bank, vs. J. B. Arleans, 84 An. 646.

The act complained of is in its nature public, also the consequent injury.

Its suppression is sought by process not civil, but in its nature criminal.

Since the adoption of the Constitution of 1879 the Legislature has not seen proper to enlarge the jurisdiction of justices of the peace by imposing other duties upon them, though the General Assembly may provide “for police or magistrates’ courts and vest them with the enforcement of municipal ordinances. Const. 186.

The Sec. 2053 of the R. S. has undergone construction in the different parishes, and prior to the adoption of the present organic law it was construed as giving authority to exercise jurisdiction in civil cases, over all infractions of the levee laws and municipal ordinances and regulations of the respective parishes, where the penalty imposed in the violated ordinance did not exceed $100. A similar construction, in so far as relates to jurisdiction, since prevails.

In matter of the ordinances relative to public roads such has been the ruling. Parish of St. Martin ex rel. vs. Delahoussaye, 20 An. 1092.

Lately it was held that the process in enforcing a State law and an ordinance of the police jury before that court must be by citation. State ex rel. Long vs. Sikes, Justice of the Peace, 44 An. 949.

There is analogy in the case at bar in so far as relates to jurisdiction.

Our ruling must remain unchanged until the Legislature may see proper to confer on these magistrates in the parishes such duty devolving on police magistrates as the Constitution may sanction.

Section 2053 does not confer on justices of the peace jurisdiction to condemn or acquit an accused as in a criminal proceeding.

They may make a judgment in debt, within their jurisdiction, for violating ordinances of the police jury, but can not And an accused guilty and compel him to pay a Ane or be imprisoned.

Criminal cases include prosecutions for offences punished by forfeitures and penalties; they include suits for the violation of ordinances. Wiggins vs. City of Chicago, 68 Ill. 372.

The order granting the rule nisi of date December 7, 1892, is discharged. The mandamus prayed for is refused at relator’s costs.


author: Brbaux, J.

text:
    No. 11,177.
    Succession of Jumonville Morvant.
    The terms o£ the document presented for probate establish that the party intended to make a donation of the property not inter vivos, but mortis causa.

    The will, olographic in form, was proven by two witnesses, who had seen the testator write and sign his name.
    The other testimony supplements that of these two witnesses.
    The declarations of the testator are admissible to prove that the document is in his handwriting, but not to prove his intentions.

      APPEAL from the Eightenth District Court, Parish of Lafourche. Guion, Judge Twentieth Judicial District, sitting in place of Caillonet, J., recused.

      Thomas A. Badeaux and Arthur F. Knobloeh for Appellants.

      Beattie & Beattie for Appellee.
   The opinion of the court was delivered by

Brbaux, J.

The following document was presented to the District Court, to be probated, as the last will and testament of Jumonville Morvant:

“September 14, 1878.
“Brother and Sister i Give my piec of Lands what i Bout from Miss. O. M. Gillis to Harriet Reese and Frank The boy what i Rase, and also my buggy and all my con and my oxsen and the Cart also dollar my mare and all what i got in the house, i give all that To harriet Reese and Frank Longs they live Brother and Sister i give that to harriet Reese and Frank for they Life times so no law got any things to do with what i Give her and Frank i give it to her with all my heart She has been with me 24 year
“Weil my Brother and Sister i sind my names on this piec papar for you all to see that i Right dis myself.
“J. Morvant
“J. Morvant
“J. F.Morvant:
“Brother Joahin you will git my money that Mr. H. W. tabour got for me and you will give it to harriet Reese he gart 2 noat for me.”

The heirs of the decedent, J. Morvant, oppose the probate of this document on the ground that it is null, for the reason that the intention of the party to make a will is not manifest; that the clauses it contains, and the manner in which it is made, doss not establish a testamentary disposition of the property.

In the second place it is urged that “ the authenticity of the document was not proven by the declaration of two (2) credible persons, who must attest that they recognize the testament as being entirely written, dated and signed in the testator’s handwriting, as having dften seen him write during his lifetime; that proof by comparison of handwriting is admissible only as supplementing the proof already adduced of two credible persons, who attest that they identify the signature and the handwriting of the testator; and lastly, that the evidence of declarations made by the decedent is inadmissible.”

The document was probated by the District Court, and the will was ordered to be executed.

Objections to the document on other grounds than those before set forth were reserved.

From the judgment the legal heirs prosecute this appeal.

In reference to the first objection, that relating to

The Intention of the Party not Being Manifest.

Upon that point, though always preferable that it should appear in express terms that the testator intended to donate mortis causa, the code upon the subject does not contain any sacramental words.

If the act of the testator and surrounding circumstances establish that it was intended as a testamentary disposition of the property, the will should be admitted to probate.

The testator was illiterate; ignorant of the rules of grammar and orthography; nevertheless the document expresses the disposition of the property he intended.

Justice requires that his will regarding his property should not be frustrated by rejecting the document as one which should not be admitted to probate, and without giving it full consideration after the probate.

“A disposition must be understood in the sense in which it can have effect, rather than that in which it has none.” R. O. O. 1713.

It is obvious that the testator intended to dispose of his property by last will and testament.

The act bears no other interpretation. If it be attempted to give it any other, it at once becomes meaningless and an absurdity.

There n nothing in the manner the will was produced to be probated which creates the impression that ap attempt was made to-impose a document never intended as a will.

There being two persons designated as intended beneficiaries, one of whom had been with him twenty-four years, creates a strong presumption in favor of the intention.

The request made of his brother and sister, in the form of a notice, is not unsuggestive of a desire that they should not interfere.

He apprehended that the law would thwart his intention in the disposition he proposed to make, and he sought by the act and the notice to accomplish the object lie had in view.

Having considered the questions more particularly of facts upon this point, we will take up and discuss the law applying..

In the interpretation of acts of last will the intention of the testator must, if possible, be ascertained (C. C. 1712), and recourse must be had to all circumstances which may aid in the discovery of the intention. C. C. 1715.

The case referred to by counsel for opponent does not strike us as •conclusively applying. Succession of Hampton Elliott, 27 An. 44.

In reference to the paper presented as testamentary the court held: ■“ the intention of the party to make a will is not manifest and that ■there is no corpus upon which a will can operate.”

“ The notes referred to in the writing are not those involved in the ¡suit.”

The paper upon the face of the record contained a contradiction, •and made it manifest that no property was designated.

This was decisive, and left nothing to indicate an intention of donating anything.

The French commentators and the courts are not entirely in ac•eord in their discussion of the subject.

Coin Deslile, referred to by opponent’s counsel, is as pronounced as any of the commentators against the validity of wills in which it does not appear, in express terms, as an integral part of the testament, that the disposition was mortis causa. Even he says that the rule is not arbitrary, and that it is a question of interpretation which must be left to the courts to determine in each case. Art. 970, Nos. 5 to 10, 336, 338.

More recently, and in conformity with more recent decisions, Aubry and Rau, Yol. 7, p. 97, say: “ Le testateur n’est astreint á ,1’emploi d’aucune formule, ni d’aucuns termes sacramentéis. Anisi, il peut faire un legs, soit en termes imperatis, soit sous les formule d’une priére ou d’une simple recommendation.”

On the same subject from Laurent: “ We have elsewhere said that the word give is employed indifferently in matters of donation with inter vivos or mortis causa." Vol. 13, p. 532.

From Demolombe, Vol. 21, p. 116, we translate: The law has not ■subjected the manifestation of intention to any sacramental form; it ■devolves upon the courts to determine from the particular circumstances, such as the terms of the act, the nature of the dispositions, dihe place where found,” etc.

A number of decisions in point are referred to in Fuzier Hermann Code Annoté, Vol. II, p. 637, No. 14 et al.:

The facts sustain the conclusion that the intention was to give, ■etc., not inter vivos, but mortis causa.

'The other questions are not before us.

We only express our opinion in reference to the evident intention ■of the writer of the document.

The Alleged Insuffiency of the Evidence to Admit the Will to Probate.

The olographic testament must be proven by the declaration of “two credible persons, who, having seen the testator write and sign, ■recognize the testament as being entirely written, dated and signed by him.

The testimony of one of the witnesses, it is virtually conceded, ■conforms to the standard required.

He was well acquainted with the deceased, had seen him often write. He identified the document as the one the testator handed to him to read in 1880 or 1881.

The first witness who testified says: “ I should say that the signature is his, but it looks to me as if there were more mistakes in ■spelling, and the handwriting is more of an uneducated man.”

Another witness, an intended beneficiary, testifies:

From my knowledge of his handwriting from having seen him write and sign, I think the signature to the document A is his, and I think it is written, signed and dated by him.”

An intended beneficiary under a will is a competent witness as to -the handwriting of the deceased, though he can not be a subscribing witness.

The judge who tried the case was also a witness for the proponent; he testifies that he was familiar with the handwriting of the decedent. He further states: “I would say that the letters ‘ B and ‘ 0 ■are decidedly in his handwriting. I am rot so confident as to the ■document A, though there are words contained in it that are spelt as he was in the habit of spelling when he wrote to me.”

Harriet Reese, a witness who can not read or write, says: that document A “ looks like the one I handed to my attorney, Gov. Knobloch. Mr. Morvant handed me this document, and read to me and told me that it would protect me if I died after he did. I told him I thought it had to be signed in the court house, but he said it was not necessary.”

The opponents have not introduced any evidence upon the subject.

The district judge probated the will upon this testimony.

The commentators upon the principles of evidence state that the proof of handwriting presents many difficulties and has in every age been found a source of embarrassment to legislators, jurists and practitioners. The difficulty does not arise when the handwriting of a certain document is proven by eye witnesses or by admissions of parties, but in cases where a judgment or opinion is that a given document is or is not in the handwriting of a given person. Best on Ev., p. 240.

There are three modes of proof laid down in logical order by Ben - tham, Vol. 3, Jud. Ev., p. 598:

1. Prsssumptio ex visu seriptionis.

2. Prassumptio ex seriptis olim visis.

3. Prassumptio ex comparatione seriptorum or ex seripto non viso.

We are only concerned at this time with the first mode of proof— namely, that any person who has seen the writer write and has acquired a standard in his own mind of the general character of his handwriting is competent to testify as to his belief that the handwriting is genuine or not. Such testimony when credible and suffi - cient is not objectionable. The word “believe” does not weaken the force of the testimony. Bradford vs. Cooper, 1 An. 326; Jewell vs. Jewell, 1 R. 316. It must necessarily be a matter of judgment or opinion.

Actual knowledge extends a comparatively little way; men are compelled to resort to judgment — a species of circumstantial evidence not secondary to direct.

The evidence of the witnesses who testified from their knowledge acquired by having seen letters and other documents was admitted without objection. This evidence is within the second of the above rules. It was competent, and supplemented the evidence classed under the first mode of proof as to one witness, and as to the other witness from having communicated personally with the party upon the contents of the document.

The objections to testimony in reference to certain declarations of the testator, as recited in the bill of exceptions, are not maintained, for the reason that they are considered only in matter of proof of the handwriting, and not as evidence in matter of the intention of the testator, as set forth in this document admitted to probate.

Judgment affirmed at appellant’s costs.


author: McEnbry, J.

text:
    No. 11,077.
    The State ex rel. Bridget Duthoo vs. Judge of the Third City Court.
    Under Act 96 of 1888, where a party has been cited to deliver up leased premises and he appears and pleads a general denial, and judgment is rendered against him, it is too»late to urge matters for the writ of prohibition that ought to hare been pleaded in the court below.
    APPLICATION for Certiorari and Prohibition.

      Thos. F. Maher for Relatrix.

      James Wilkinson contra.

   The opinion of the court was delivered by

McEnbry, J.

The relator prays for a writ of prohibition to arrest further proceedings in the suit of New Orleans, Port Jackson & Grand Isle Railroad Company vs. Relator, on the ground that the city court is without jurisdiction ratione materise, as there was no relation of lessor or lessee between plaintiff and defendant in the suit, and that it was in fact a suit in which title to the premises was at issue.

The record shows that one Albert N. Robelot leased the premises to relator; that afterward the railroad company purchased the property from Robelot. The relatrix was in arrears for rent. She was cited in pursuance of Act 96 of 1888 to deliver possession of the premises to the railroad company. She appeared and filed a general denial. There was judgment in favor of the plaintiff, ordering the defendant to deliver possession of the premises to the railroad company.

After judgment was rendered the relator in the application to this-court for the writ of prohibition assigned several grounds for relief. They ought to have been pleaded in the court of the first instance,, and it is too late to urge them after judgment has been rendered, and the pleadings admit the regularity of the citation and the character of the suit.

The rule granted herein is discharged, and the relief prayed for denied.


text:
    NO. 11,102.
    W. W. Miller vs. Douville & Gallagher.
    If he who proposes should, before consent is given by the promisee, change his intention, the concurrence of the two wills is wanting and there is no contract.
    A mere proposal to sell may be revoked at any time before acceptance.
    A condltiou dependent upon the will of the party to whom an offer to sell immovable property is made should be reduced to writing to secure its binding effect.
    PPEAL from the Oivil District Court for the Parish of Orleans. Bightor, J.

      Harry H. Hall for Plaintiff and Appellant:
    1. A written promise to sell amounts to a sale when there exists reciprocal consent as to the thing and price. O. O. 2462; 12 11. 474; 11B. 349; 5 An. 666; 6 An. 26; 7 An. 71; 10 An. 162; C. N. 1589; 34 An. 677; 15 An. 583; 2S An. 34.
    2. A written promise to sell real property is valid and may be enforced although not signed by the obligee, and consent may be shown aliunde. 2 La. 491; 11M. 217; 3 N. S. 583; 8 L. 207; 11 La. 247.
    3. A conditional promise to sell real property gives no title, but simply, when the condition is fuiillled, a right of‘action for a specific performance or damages. 10 An. 150; 13 An. 362; Art. O. C. 1809.
    4. A default is not subject to the formalities required by the Code of Practice, for tender, nor to any particular form. It suffices for the creditor to announce a readiness to perform his part and to demand a like performance from the debtor. 3 La. 885; C. C. 1911; 6 La. 184; 3 La, 99; 27 An. Ill; 26 An. 453.
    5. A refusal to accept dispenses one from making a tender. Oivil Code, 1932; 4 La. 40; 13 An. 203.

      J. L. Bradford and Calhoun Flulter for Defendants and Appellees:
    The vague written statement of the price and terms upon which one would be willing to sell another an interest in a tract of land can not, by simple acceptance, be transmuted into a contract of sale where the writing does not disclose a contractual intent. C. C. 1945.

      A proposition, to become an agreement having the effect of law upon the parties,. must show mutuality of engagement and not a mere understanding on one side.
    It must be consented to and accepted by the person to whom it is made, and such acceptance must be unqualified, absolute, and conformable to the offer. Any condition or limitation in the acceptance gives him who made the offer the right to withdraw it. C. C. 1805; 1 La. 188, 190; 6 R. 97; 11 An. 649; 21 An. 620.
    If he who proposes, before that consent or acceptance is given, change his intentions on the subject, the concurrence of the two wills iswantingand there isno contract. C. C. 1800.
    The party proposing shall be presumed to continue in the intention which h's proposal expressed, if, on receiving the unqualified assent of him to whom the-proposition is made, he do not signify the change of his intention. C. C. 1801.
    Where it is evident that the parties contemplated a formal act of sale, the contract is incomplete until the deed has been actually drawn and signed by both parties. Until this is done either has the right to withdraw from his proposition, the-only effeet being that the parties must be placed as they were before. O. C. Pothier Obs.; 3M. 349. 518, 578 ; 5 M. 677; 4 La. 80; 24 An. 435; 28 An. 33.
    No liabilities for damages for violation of contract can be incurred by one who ■ does what he has a legal right to do.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sued the defendants to recover the sum of $10,700, and alleges that in April, 1891, he entered into negotiations. with the defendants for the purchase from them of an undivided one-half interest in 14,800 acres of land in Mississippi, known as Kiel-lands; that said negotiations resulted in an offer made by defendants • to petitioner on the 28th day of April, 1891, of the one-half interest for $7800, upon the condition that he should at once examine the • lands and be satisfied with them; that this proposal was accepted and defendants notified on the 29th day of April, 1891, that petitioner would at once proceed to the examination with the defendants as . proposed; that on the 29th of April he was by defendants requested to defer the examination, for their own convenience, until May 4, 1891. The defendants having declined to accompany plaintiff he examined the lands nevertheless, and was, he says, satisfied with them..

On the 7th day of May he notified the defendants, in writing, that he accepted the proposal, and he requested that the deed of sale be prepared for signature.

The defendants denied that there was any valid or binding contract or obligation to sell- the lands.

Plaintiff avers that the defendants sold the undivided one-half interest for $18,500, and that he is entitled to the difference between that price obtained and the price at which defendants offered to sell, in the instrument declared upon, which reads:

“New Orleans, La., April 30, 1891.
“ Statement of terms and conditions on which we will sell a one-half interest in 14,800 acres which we have recently purchased in lower Mississippi, known as the Kiel lands — will sell one-half interest for $7800, 81300 to be paid in cash, 81000 to be paid September 1, 1891, and balance on or before next two years at 8 per cent, interest on deferred payments. This proposition made to W. W. Miller this 30th day of April, 1891.
“Douville & Gallagher.”

A deed of sale, by Mrs. Kiel as vendor, to the defendants, is in evidence, of 14,800 acres, with warranty, and another deed of 1000 acres, the title to which was of doubtful validity, and for which they had a quit claim.

The defendants requested N. R. Smith, an acquaintance, to find a purchaser for an interest in one-third or one-half of these lands, at the price of fl per acre.

Smith thereupon sought to interest the plaintiff in making the purchase. The terms made to Smith were renewed by telegram and letter to him.

The plaintiff came to New Orleans and the defendants gave him a description (verbally) of the' lands in question and handed him a plan of the lands.

At this time the instrument copied above was signed by the defendants.

On May 6, 1891, a telegram was sent, of which the following is a copy:

“New Orleans, May 5, 1891.
N. R. Smith — Have customer entire Wolf river lands at price, could not recommend to you. Will make your expenses and your friends’.”

It was signed by the defehdants.

The witnesses understood this dispatch as a notice of intention to withdraw the offer.

On that day plaintiff came to the city and repaired to defendant’s office. He was there asked if he had received the dispatch — the one just copied — to which he replied affirmatively, and expressed his determination to go and examine the lands.

The defendants stated to plaintiff that the lands were sold to other parties.

On returning, after he had examined the lands, he again met Douville, a member of the defendant firm, who said to him that he could not have the lands.

Subsequently, on the same day, the plaintiff returned to defendant’s office and handed 'him a letter, of which the following is a copy:

“New Orleans, May 7, 1891.
“Messrs. Douville & Gallagher, Boom o, 20 St. Charles Street: Gentlemen — In conformity with our agreement, I came to the city on Tuesday, the 5th of May, leaving that evening to visit the lands upon Wolf river. I returned to the city this morning, satisfied with my examination. I now accept your proposal of April 30, to sell to me one-half interest in 14,800 acres in lower Mississippi-, known as the Kiel lands, for $7800, $1300 to be paid in cash, $1000 September 1, 1891, and the balance on or before one or two years, at 8 per cent, interest on deferred- payments.
“Please have deeds prepared at once, as I desire to leave the city as soon as possible, and am prepared to make the cash payment.
“Yours truly, “ W. W. Miller.”

Prior to the receipt of this letter the defendants had refused to execute a deed of the lands to plaintiff.

The duty of the court becomes one of interpretation of the instrument- which the plaintiff argues evinces a complete and binding obligation to sell, and he avers that there existed a reciprocal consent as to the thing and the price; also that a written promise to sell the property is valid and may be enforced, although not signed by the obligee.

He adds: Conditional promise to sell gives no title, but simply, when the condition is fulfilled, a right of action for a specific performance or damages; and that there is no question, of parol testimony, as the thing, price and final consent are all in writing.

The consent was not reciprocal in this, that no terms were stipulated.

The defendants offered to sell their lands to the plaintiff without limiting the time for its acceptance.

They recalled the offer before the plaintiff had expressed his willingness to buy.

There was no agreement between the parties.

When the plaintiff expressed his willingness to accept, the offer had been withdrawn.

This court has decided in several cases that a written promise to sell real property is valid and may be enforced, although not signed by the obligee.

We have examined each of the cases to which counsel for plaintiff invites our attention.

The principle is maintained by them that a written promise to sell or convey real property is valid notwithstanding there is no signing, or written assent by the promisee and that proof of that assent may be proved by evidence aliunde.

The question of withdrawal of the offer prior to its acceptance was. not an issue in any of these cases.

The offer can be withdrawn at any time before acceptance.

Without mutual assent there can not be a sale.

A promise to sell implies an offer, an accepted offer, while pollicitation is an offer not accepted.

The offer, so long as it remains open, may be accepted or rejected by the party to whom or be withdrawn by the party by whom it was-made. 119 U. S. 151.

In Peetvs. Overton, 7 An. 71, the agreement was absolutely binding upon the defendant; as to him it amounted to a sale, although sixty days was given to Mrs. Bemiss to accept and comply with the-conditions.

A proposal may be revoked at any time before acceptance. Ill Am. and Eng. Encyc., p. 860 (note).

The article of the Civil Code on the subject conveys but one meaning — if the promiser before consent changes his intention, the concurrence of the two wills is wanting, and there is no contract.” Art. 1800.

We construe these authorities in their application to a written offer to sell real estate in which no term is stated.

No other question on the point now under discussion arises for our decision, such as the right vel non to withdraw the offer when time has been given or after its acceptance.

As to the offer without term, until there is acceptance “ the negotiations of the parties amount to nothing more than proposals and counter proposals.” Ill Am. and Eng. Encyc., p. 852.

It is contended by plaintiff that there was a conditional promise to sell to him, and that he fulfilled the condition, which gives him a right of action for a specific performance or damages.

He has elected to sue for damages.

Whatever condition there may have been depended, says plaintiff in effect, on his will.

The record does not disclose that any right was reserved, in due form and expressly, to examine the land or to secure any delay whatever before accepting.

Ooneerning a conditional promise to sell and “ condition fulfilled,” we are referred by plaintiff’s counsel to Knox vs. Payne & Harrison, as an opinion in point.

We have examined the transcript of that case, which is part of the archives of the court. It discovers no analogy, except that there was a promise to sell on part of White, to the plaintiff Knox. It was reduced to writing and clearly expressed in every respect.

The promisee was placed in possession of the property, and had paid the price to the promisor. Says the court in that case:

1 ‘ Whether he was obliged to do so or not to do by the fulfilment of the suspensive condition on the part of plaintiff does not concern us to decide.” 13 An. 861.

We have not discovered great similarity in the other case referred to, that of Peck vs. Bemiss, 10 An. 162.

The difference is at once apparent by the following:

Overton engaged himself to sell the land to 'Peek at a future time, and Peck engaged himself to purchase it, when possession should be given on the terms of cash and credit designated in the instrument.”

Plaintiff has not secured any right designatedTn the instrument.

He delayed acceptance without binding conditions on the part of the promisors.

The court can not grant him relief.

Judgment affirmed at appellant’s costs.


author: McEnery, J.

text:
    No. 11,121.
    City of New Orleans vs. C. W. Pohlmann.
    When a mechanic goes outskle of his occupation and employs others in a different pursuit, such as hrielrmasons, painters and slaters, in the erection of buildings, his business is that of contractor and he is.not exempted under Article 206 ol Constitution from paying license tax.

      APPEAL from the First City Court. J.

      G. W. Flynn, Assistant City Attorney, and E. A. ‘O’Sullivan, City Attorney, for Plaintiff and Appellee.

      W. B. Sommerville for Defendant and Appellant.
   The opinion of the court was delivered by

McEnery, J.

The city of New Orleans sued the defendant, C. W. Pohlmann, to recover a license tax for the year 1892 for carrying on the business of building contractor.

There was judgment against the defendant, from which he appealed.

His defence is that he is a carpenter, and as such claims exemption under Article 206 of the Constitution.

In several cases we have had occasion to review the provisions of said article and have given to it a liberal construction in behalf of those whom it was intended to relieve from the burden of a license tax.

The article intended to promote and foster mechanical, agricultural, horticultural and mining pursuits and manufactures. But it did not intend to go beyond this and relieve those who were in fact mechanics, agriculturists, etc., and who joined to their occupation other and different pursuits, making with the occupation a different and distinct business.

So long as one confines himself to his particular occupation, although he may in its pursuit be compelled to employ others to assist him, he is exempt from the license tax. But when he goes beyond this and employs others in different mechanical pursuits, to complete a house, for instance, he no longer pursues his individual calling, but becomes a contractor, and is therefore liable to pay the license tax. The fact that he works at his trade on the building he is erectirg can not alter the fact that he is a contractor employed to erect the entire building, including painting, slate and brick work, and plumbing.

In the case of City of New Orleans vs. Bayley, 35 An. 545, we held that a mechanic who employs assistance is exempt from a license tax upon his trade. But in that case he worked exclusively at his business of plasterer and employed other plasterers to assist him. He worked “ at his trade with his own hands,”

He was not a contractor employed to erect the building, employing others of different occupations to do work outside of his line of business.

In the case of Oity vs. Lagan & Sons, the defendants were exempted from paying the license tax. They were carpenters, and employed carpenters to erect the house which they had contracted to build.

As stated in the opinion, “ they employed the carpenters who worked with them and under their direction in constructing houses.”

They pursued their individual calling, performing manual labor on the buildings from the first piece of timber, in framing, and finishing to the completion of the house.

In the instant case the defeadant says that “he isa carpenter, takes contracts for erecting buildings, and has done so during the year 1892. In the course of construction he contracts for the slating, the brick work and the painting. He employs other carpenters. He superintends the houses he contracts to build. He follows the carpenter’s trade on the buildings he contracts to build, performs manual labor thereon from the ‘ first piece of timber in framing to the very completion of the house.’ He ‘ puts on his working clothes and works both level, saw, plumb line, hammer, etc.’

“ When he has several buildings under contract he works on one at a time. He is a member of the firm of Bruns & Pohlmann, and had contracts during the year for the building of a row of houses on Prytania street for the sum of $30,000; while working on one of the buildings he gave the necessary instructions for the construction of the others. He could not work on all the houses at one time, but managed to do so whenever he got the opportunity, and in this way worked on all the houses.” These facts brings this case within the rulings of Tax Collector vs. Conner, 42 An. 787, and City vs. O’Neil et als., 43 An. 1182. In the first case defendant was a briekmason, but had not followed the manual duties of that occupation for many years, except occasionally to lay brick in order to exhibit his skill, or to direct others.

He took contracts for the erection of brick buildings, and superintended the mechanical labor of laying bricks by his employés.

In the second case of City vs. O’Neil et als. the defendants were carpenters. “ They contracted for building houses and other structures. They employed other carpenters; they laid off the work; and used the square, the spirit level and the straight edge, and as the building progressed in the construction they used the plumb line. They superintended.”

At one time the defendants would have several buildings under construction.

From the facts in the case it would have made no difference had the defendants also worked manually on the buildings. This fact ■would not have changed their occupation of master builder or contractor to manual workers alone.

The testimony does not show that defendant worked exclusively at his trade as carpenter, and employed other carpenters to assist him in his work of erecting a house. But it does show that he contracted for the erection of buildings, including painting, brick work and slating. In fact he goes beyond his own occupation and employs mechanics of a different pursuit in erecting the buildings he has under contract. His own statement shows that he is in fact a contractor, and brings his case in line with those last cited.

Judgment affirmed.


author: Watkins, J.

text:
    No. 11,142.
    A. M. Hollingsworth et al. vs. A. R. Thompson, Tax Collector.
    1. When a question arises in a court of law as to the existence of a statute, or as to the time when a statute took effect, or as to the precise terms of a statute, the judge who is called upon to decide it has the right to resort to any source of information which, in its nature, is capable of conveying to the judicial mind a clear and satisfactory answer to the question.
    2. When the Constitution does not require legislative journals to affirmatively show that a particular thing, necessary to legislative action, was done, mere silence will not invalidate; and, in such case, it will be presumed that the Legislature observed their obligation, and did not pass the bill without sufficient proof of proper proceedings having been taken.
    8. The unconstitutionality of an act duly enrolled, authenticated by the signatures of the presiding officers, and approved and signed by the Governor, must be affirmatively and clearly shown before a court of justice is authorized to treat it as void on account of same not having been passed in accordance with the rules of parliamentary law prescribed in the Constitution.

      4. JB'rom considerations of public policy, and because of the respect due the action of a co-ordinate department of government, courts will supply apparent omissions from legislative journals, by presumptions as to the regularity of the proceedings of the General Assembly; and it is a rule that has been found most salutary.
    -5. The Legislative act creating the Bossier Levee District made no provision for a new, separate, or additional assessment of property within the district, the only duty in this regard that it east upon the levee commissioners being to levy the taxes contemplated thereunder. They were not empowered to make any new valuation or appraisement; nor is the parish assessor authorized or required to make a new assessment. The board of reviewers were not entrusted with the performance of any duty in respect to such tax. The only question of doubt or uncertainty that could arise under the operation of this statute is one at fact — namely, whether the land on which the levy of taxes is made was or not alluvial, and consequently subject to the tax vel non; and it does not involve a question of constitutionality of the law.

      Watkins, J. PPEAL from the Second District Court, Parish of Bossier.

      Land & Land and Alexander & Blanchard for Plaintiffs' and Appel1 lants:
    1. Act 89 of 1892 was not enacted as a statute of the State, because the House Bill was amended by the Senate, and one of the amendments was not concurred in by the House by a yea and nay vote spread on the journal, as required by Article 38 of the Constitution of 1879. Cooley on Constitutional Limitations, 164; 165,111; 94 U. S, 260; 105 U. S. 667; 43 An. 590; Sutherland on Statutory Construction, Sees. 41, 48, 65, 66.
    2. If constitutionally enacted as a law, Act 89 of 1892, in providing for an assessment of property for taxation, without notice to the persons taxed and opportunity for confirming or contesting the charge before some officer, board or court, deprives them of their property without “ due process of law.” Cooley on Taxatios, Sees. 265, 266, 267; 133 U. S. 660; 115 U. S. 321; 111 U. S. 701; 95 U. S. 37; 2 An. 887.

      Bell <& Randolph for Defendant and Appellee:
    1. Every presumption is in favor of tlie validity and regular passage of an act appearing in the published statutes and signed by the Speaker of the House Lieutenant Governor and the Governor, attested by Secretary of State. Cooley on Constitutional Limitations, p. 164 (136); Am. Dig. 1891, verbo Statutes, p. 4130; 42 An. 1098; City vs. Robira, 5 R. 383; 44 N. W. R., p. 1047; 36 N. W. R., p. 443; 10 S. W. R., p. 310.
    2. A statute may be partly void and partly valid. If, when the unconstitntional part is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained. Cooley, Con. Lim., pp. 211 and 212 (5th Eo.); 14 An., p. 7; 42 An., p. 92; 33 An. 253. This doctrine applies to all statutes alike, whatever may be the grounds of the invalidity of their bad parts. What is void in the law may be stricken out and it is duty of courts, if what remains can be enforced independent of part stricken, to uphold that much. State vs. Deal, 4 So. Rep. 9U9, Maxwell, C. J.; 39 An. 460.
    3. Objections based on the principle “ due process of law ” do not apply to tax cases. 39 An. 455. The valuation or assessment put on property for purposes of State taxation shall be taken as the proper valuation for purposes of local taxation in every subdivision of the State. Constitution 1879, Art. 203.
   The opinion of the court was delivered by

Watkins, J.

The object of this suit, and the prayer of the plaintiffs’ petition is that the tax collector of the parish of Bossier be restrained and perpetually enjoined from collecting from them “ the ten mill tax, the acreage tax, and the tax on cotton, levied for the year 1892 ” by the commissioners of the Bossier Levee District, undei- and in alleged conformity to the provisions of Act 89 of 1892, and that it be adjudged and decreed that said act “ is not a law or statute of the State of Louisiana,” and that the levy of said taxes is illegal, unconstitutional and void.

It is further alleged and prayed that, if it is ascertained and decided that said act was passed and approved in pursuance of the forms prescribed and required by the Constitution and laws of the State, said levy of taxes should be decreed null and void, because it is violative of the State and Federal Oonstitutions.

The grounds on which the foregoing relief is demanded are particularized and stated at length, and circumstantially, in the plaintiffs’ petition, to be, that said Act 89 of 1892 — it being an act to create the Bossier' Levee District of the State of Louisiana — was published and promulgated as a law of this State, whereas it is a fact that said act was never passed or enacted by the General Assembly of the State according to requirements of the Constitution and parliamentary law, for the reason that there was introduced and passed in the House of Representatives a bill with the same title as that of said Act 89 of 1892, which was thereafter sent to the Senate, and concurred in with certain amendments, five in number. That the said bill, with its amendments, was thereupon returned to the House of Representatives for its concurrence in said Senate amendments. That among said amendments was one — it being the fifth or last in regular order of adoption — purporting that there shall be no compensation or salary allowed to any levee commissioner for services rendered as such other than actual expenses, to be ascertained and allowed by the board; and that the House of Representatives, upon considering and passing upon the said Senate amendments, concurred in the four preceding amendments by a yea and nay vote, as required by the Constitution, but “that said fifth amendment was not called up, read or voted 'on in said House * * * and was not concurred in by said House, nor acted on in any manner by either House from and after its adoption by the Senate, as hereinbefore set forth,” as required by Art. 38 of the Constitution.

That the journal of the House of Representatives does not show any concurrence by the House in said Senate amendment No. 5, and that for the want of said concurrence said bill failed to become a law or enactment of the General Assembly, and was on that account improperly and unlawfully signed and promulgated as a law.

Petitioners represent that the Governor of the State appointed, under the aforesaid act, levee commissioners, who convened, organized and levied the taxes complained of as illegal, on the ground that the legislative act is illegal and unconstitutional for the reasons and causes we have enumerated; and, further, because, if otherwise valid, it is void, because it conflicts with the Constitutions of the State and the United States, in that (1) it authorizes a tax of ten (10) mills to be levied upon all property within said levee district subject to taxation ; and (2) the levy of a forced contribution of five (5) cents an acre on each and every acre of land within said district that is alluvial; and, further, because, in the matter of said assessments, the said law contains no provision for notice to the tax-payer, and affords him no opportunity to be heard on the question of the listing and valuation of his property before any officer, board or court; but, on the contrary, makes the tax assessor an arbitrary judge as to what lands are subject to taxation, and what are exempt, and as to what persons shall be assessed and the valuation thereof — thus depriving petitioners of their property without “ due process of law,” in violation of the Constitution of the United States, and depriving them of “ the right of testing the correctness of their assessments before the courts of justice” within the intendment of the provisions of Art. 203 of the Constitution of the State.

Defendant’s answer admits the levy, assessment and proceedings having been inaugurated for the collection of the tax as well as the forced contribution complained of, but it avers the legality and constitutionality of the act, and alleges that same was regularly passed and approved in accordance with forms of law and the requirements of the Constitution.

It distinctly and particularly alleges that Senate amendment No. 5 was concurred in by the House of Representatives, and that such concurrence is shown by the journals of the Senate and House of Representatives.

“ He further avers that if the court should find that the House ournal does not particularize the said amendment, as it may appear in the purported printed journals, that the failure to particularize is an omission and mistake and error of the printer or minute clerk of the House, and that the true record and journal of the House and the engrossed bill and endorsements thereon show that the fifth Senate amendment, as well as all the other amendments, were concurred in by the House.” (Plaintiff’s brief.)

It finally denies that said act; violates any article of the State or Federal Constitution, or that it contemplates the taking of property without due process of law.

On the trial there was judgment in favor of the defendant, and the plaintiffs have appealed.

The two propositions that are thus presented for consideration and decision are, (1) whether Act 89 of 1892 is unconstitutional, intrinsically, and (2) whether it is constitutional extrinsically.

I.

The effort is made by the plaintiffs to show by the legislative journals of the session of the General Assembly of 1892 that the published and authorized statutes of that year contain an incorrect report of the law as it was actually and really enacted; and that the proof afforded by the journals discloses that the original bill, as it was adopted in the House of Representatives where it originated, was amended in the Senate, and that the amendments were not subsequently concurred in by the House of Representatives. That it shows that unless the proposed amendments were accepted by the House of Representatives, there was no concurrence of the two houses of assembly, and the unconstitutionality of the whole statute necessarily follows:

Looking into the journals we find the following pertinent facts, to-wit:

Senate Journal, June 23.
“House Bill No. 257.
‘ By Mr. Boggs:
“ An Act to Create the Bossier Levee District of the State of Louisiana. ***********
“ Reported favorably by the Committee on Agriculture, Commerce and Levees, with the following amendments, which were read: In line 17, section 1, page 3, after the word ‘ dividing ’ strike out the words, 1 township 20 and 21 N.,’ and insert in lieu thereof the words, ‘the north half from the south half of township 20 N.’
“ In line 26, section 1, page 3, after ‘ 21 N.,’ strike out the figures ‘ 19 and 20,’ and insert in lieu thereof the words, ‘ and the south half of township 20 N.’
“ In line 1, section 2, page-5, after the word ‘ act,’ strike out the word ‘ four,’ and insert in lieu thereof the word ‘ five.’
“In line 13, section 3, page 6, after the word ‘times,’ add the words, ‘ and at such place as is most convenient.’
“ Add the following at the end of section 3: ‘ There shall be no compensation in salary allowed to any commissioner for his service as such; provided, however, the board may allow to each commissioner the actual expenses incurred by him in attending the meetings of the board and while engaged in the performance of duties ordered by the board.’
“ On motion of Mr. Stroud, the amendments were adopted.
“ The bill was read in full as amended.
“ Mr. Stroud moved that the bill be passed to its third reading.
“The motion was agreed to. (See pp. 250-251.)”
June 27.
“The bill passed the Senate on a yea and nay vote, the title was read and adopted, and a motion to reconsider laid on the table. (See p. 277.)”
House Journal, June 28.
“ Senate returned, ‘ with amendments,’ House Bill No. 257. (See p. 503.)
“House Bill No. 257.
“ By Mr. Boggs:
•‘ An Act to Create the Bossier Levee District of the State of Louisiana *********** was taken up with the following Senate amendments:
“ In line 17, section 1, page 3, after the word ‘ dividing,’ strike out the words, ‘ township 20 and 21 N.,’ and insert in lieu thereof the words, ‘the north half from the south half of township 20 N.’
“In line 26, section 1, page 3, after the figures ‘ 19,’ strike out ‘20 and 21 N.,’ and insert in lieu thereof the words, ‘ and the south half of township 20 N.’
“In line 1, section 2, page 5, after the word ‘act,’ strike out the word ‘ four,’ and insert in lieu thereof the word ‘ five.’
“In line 13, section 3, page 6, after the word ‘times,’ add the words, ‘ and at such places as is most convenient.’
“ Mr. Boggs moved that the House do now concur in the Senate amendments.
‘ ‘ The roll being called resulted as follows:.
“Yeas * * * * *
“Total, 76.
“ Nays, none.
“Absent * * * * *
“ And the House concurred in the Senate amendments.
“Mr. Boggs moved to reconsider the vote by which the Senate amendments were concurred in, and on his motion the motion to reconsider was laid on the table.
“See pages 508 and 509.”

Prom the foregoing it appears that the claim is made that the House of Representatives failed to concur in what is termed the fifth amendment, which provides that “there shall be no compensation in salary allowed to any commissioner for his service as such,” etc., and that on that account the statute is null and void in toto.

The evidences relied upon by the defendant as establishing the converse of that proposition are: (1) The presence in the authorized and published statutes of the legislative act in its entirety, inclusive of the fifth Senate amendment, same being made up from the enrolled house bill. (2) By the entry in the House journal, supra, namely, “ and the House concurred in the Senate amendments,” in pursuance of a preceding entry to the effect that a member “moved that the House do now concur in the Senate amendments.” (3) By the further entry in the House journal of the yeas and nays taken on said motion, resulting in seventy-six (76) yeas and “nays none.” (4) By the entry in the Senate journal of a communication received from the House of Representatives to the effect that the House had passed and asks concurrence in the bill “ creating the Bossier Levee District.”

To the foregoing testimony no objection was urged, both parties conceding its admissibility, taken in connection, as it is, with the published statutes of the Legislature; but when the defendant’s counsel offered in evidence “the original engrossed House bill No. 257, with all indorsements thereon, including the original Senate amendments attached thereto,” plaintiffs’ counsel objected on the ground that same was inadmissible because “the journals of the House are the best and exclusive evidence of the proceedings of said House, and (that) no other, of any kind, is admissible” for that purpose.

The court ruled to receive it in evidence, and properly, in our opinion.

In Gardner vs. The Collector, 6 Wallace, 499, the Supreme Court had under consideration and decided a similar question involving the legal enactment of a law of Congress, and on which they expressed this view:

“We are of opinion, therefore, on principle as well as authority, that whenever a question arises in a court of law of the existence of a statute, or of the time when a statute took effect, or of the precise terms of a statute, the judges who are called upon to decide it have a right to resort to any source of information which in its nature is capable of conveying to the judicial mind a clear and satisfactory answer to such question,” etc. (Italics are ours.)

This conclusion was stated as the result of an examination of authority, though it was preceded by a statement even more forcible and clear, viz.:

“The second proposition, that ‘if the president’s record is defective in respect to the year when it was made, no resort can be had to extrinsic evidence to supply that defect’ is still more at variance with both principle and authority,” etc.

We had occasion to express a similar opinion upon a somewhat similar question in State exrel. Morris vs. Secretary of State, 43 An., at page 613, to-wit:

“ Nor can we seethe impropriety of the judge admitting the papers that were offered by the respondent. They were at least of a quasi official character, and will, evidently, aid us in determining the true character and value of the published volumes, which purport to be official journals.”

On reason and authority we regard the engrossed House bill as a proper subject for consideration, in connection with the journals kept of legislative proceedings. It is the res, the very subject matter then under legislative consideration. It proves rein ipsam, if it proves nothing more.

Looking into the engrossed bill we find it to conform to the act as published in the statutes of the year 1892, embodying in its third section the substance of the fifth Senate amendment. The endorsements thereon disclose fully all the stages of legislation through which it passed, from the time of its introduction in the House of Representatives to final action thereon. They show that the bill finally passed the House by a vote of sixty yeas and no nays.

That it was adopted in the Senate with amendments, and physically annexed to this engrossed bill are the Senate amendments.

That when the bill was returned, in its amended form, to the House, action thereupon was taken, and, in confirmation thereof, the clerk of the house made thereon this endorsement, to-wit:

“ Received from Senate with amendments. Roll called on concurrence in amendments. Yeas 76, nays O. Concurred in.”

That, subsequently, on the 6th of July, it was endorsed thus, to-wit:

“ Enrolled and signed by the speaker and presiding officer of the Senate, and taken to the Governor for executive approval.”

This evidence, collectively taken, points, in our opinion, with unerring certainty to the conclusion that the failure was of the clerical force in the House of Representatives to make an accurate and complete report of the proceedings had upon the Senate amendments, in journalizing them for the day, or in the preparation of the official copy thereof for publication; and not that of the House of Representatives to clearly express its approval of the fifth Senate amendment to the bill.

And when thus considered and construed, our conclusion must be that the House did concur in all of the Senate amendments.

There is no provision of law, constitutional or statutory, which requires an amendment to a bill to be printed in the journal of either House of the General Assembly, or in the State gazette, or the official journal of legislative proceedings.

In Morris vs. Secretary, cited supra, we quoted at page 618, Art. 28 of the Oonstitution, and extracts from Section 10 of Act 6 of 1881 —the public printing act — and said: “ In these extracts we have all the law applicable to the printing and publication of the proceedings of the General Assembly in newspapers and journals.”

The injunctions of the Constitution are (1) that “ each house shall keep a journal of its proceedings and cause the same to be published immediately after the close of the session” of the General Assembly; (2) and, “ when practicable, the minutes of each day’s session shall be printed and placed in the hands of members;” (3) “ the original journal shall be preserved, after publication, in the office of the Secretary of State; but there shall be required no other record thereof.” Art. 28 of Constitution.

The printing law simply declares that within two days after the journal of each house shall have been approved, the State printer shall publish the same as so approved.” Sec. 10, Act 6, 1881.

With regard to amendments the constitutional requirement is that “ no amendment to bills by one house shall be concurred in by the other except by a vote of a majority of the members elected thereto, taken by yeas and nays, and the names of those voting for or against recorded upon the journal thereof. And reports of committees of conference shall be adopted in either house only by a majority of the members, the vote to be taken by yeas and nays.” Art. 38 of Constitution.

As announcing a different conclusion counsel for appellant cites and relies upon a paragraph they have selected from Morris vs. Secretary to the effect “that the failure of the secretary to enter one would have resulted just as fatally to the proposed amendment as the failure to enter the other.” Vide p. 641.

It is sufficient to observe that the amendment there ref erred to was an amendment to the Constitution, and not an amendment to a legislative bill — an entirely different matter.

This question has repeatedly passed under judicial investigation by different courts in other States of the Union, and they have expressed views similar to the one we entertain.

In Hill vs. Steele, 2 Southern Reporter, 650, it was assigned as an nnconstitutionality of an act of the Alabama Legislature that the Senate journal failed to show “ that the report of the committee of conference * * * was adopted by the Senate,” and of it the court said:

We have uniformly held that when the Constitution does not require the journals to affirmatively show that a particular thing, necessary to the validity of the legislative action, was done, mere silenee will not invalidate; and in such case we will presume that the Legis - lature observed their obligation, and did not pass such bill without sufficient proof that the proper notice was given. The unconstitutionality of an act enrolled, authenticated by the signatures of the presiding officers, and approved and signed by the Governor, must be affirmatively and clearly shown before the courts are authorized to treat it as void, because not being passed in accordance with the rules of parliamentary law prescribed in the Constitution.” (Italics ours.)

To the same effect are the following cases: Walker vs. Griffith 60 Ala. 361; Clark vs. Jack, Id. 271; State vs. Peterson, 36 N. W. Rep. 443; State vs. Hastings, 24 Minn. 78; Miller vs. State, 3 Ohio, St. 475; Williams vs. State, 6 Ohio, 549; Supervisors vs. People, 25 Ill. 181; Harrison vs. Railroad Co., 77 Ill. 11; Worthern vs. Budgett, 32 Ark. 496; State vs. Algood, 10 S. W. Rep. 310.

After making careful examination of many adjudications on the subject we have nowhere found the rule more carefully or correctly stated than by the Arkansas court in Glidewell vs. Martin, 11 S. W. Rep. 883:

Prom considerations of public policy,” say the court, and because of the respect due the action of a co-ordinate department of government, the courts long since began to supply the omissions of journal clerks by presumptions as to the regularity of the proceedings of the General Assembly. This has been found most salutary; and the attitude assumed by the judiciary in this regard has gone far toward establishing and maintaining public confidence in the stability of legislative action. * * * The courts are gravitating toward the English rule, so thoroughly discussed in Ohicot Co. vs. Deane, 40 Ark. 200; for while they say that the enrolled bill is not conclusive proof of the valid enactment, and that we may look beyond it to the journals, they supply, by presumption, everything necessary to its validity, save when the journal affirmatively shows a violation of the Constitution.’'1

In view of the fact that an amendment to a pending bill is not re - quired, by either the Constitution or the law, to be printed in the journals; and in view of the fact that the constitutional requirement is that concurrence by one house, in an amendment made by the other, shalLonii/ be evidenced by “ a vote of the majority of the members * * taken by yeas and nays;” the absence of an amendment or a part of one from the journal could not, with fairness or propriety, be construed as annihilating the whole statute.

In our opinion there is no question of the constitutionality of the ' law in this respect.

II.

The act, considered extrinsically, is alleged to be unconstitutional, in that it authorizes a tax of ten (10) mills to be levied upon all property within said district, subject to taxation for levee purposes, and the levy of a forced contribution of five (5) cents an acre on each and every acre of land within the said district that is alluvial; and, that in the matter of assessment of the property, the law contains no provision for notice to the tax-payer, and affords him no opportunity to be heard on the question of the listing and the valuation thereof before any officer, board or court; but on the contrary, makes the tax assessor an arbitrary judge as to what lands are subject to taxation and what are exempt, and as to what persons shall be assessed, and at what valuation property shall be assessed, thereby depriving petitioners of their property “ without due process of law,” in violation of the State and Federal Constitutions; and depriving them of “the right of testing the correctness of their assessments before the courts of justice” in violation of the 203d article of the Constitution of this State.

If this statement be accurate, the taxing statute is most radically defective and glaringly unconstitutional, indeed.

But an examination of the provisions of the act discloses the following governing provisions relative to the listing and valuation of the property of the levee district:

Section 1 provides “ that all that portion of the alluvial lands in the parish of Bossier, embraced and situated within ” prescribed limits are incorporated into a levee district.

Section 6 provides that the commissioners appointed for said levee district, “for the purpose of raising revenue to carry out the objects contemplated by the act, may levy annually, for levee purposes, a district levee tax of ten (10) mills on the dollar of its assessed valuation, and it shall be the duty of the assessor to extend the said tax upon the tax rolls; and the assessor shall make, without additional compensation, separate rolls for the part of the parish included in this district, which rolls shall be deposited, etc., * * * and the tax collector ■of the parish shall collect the said district levee tax, in the same manner as State taxes are collected,” etc.

Section 7, in like manner, provides for the levy of a local assessment upon property of the levee district, and for its extension upon the tax rolls of the parish, and for its collection in like manner.

From the foregoing it clearly appears that the commissioners are -empowered to make a levy of taxes upon properties that have been already listed and valued, or assessed. The rate of this levy must be, necessarily, restricted, and confined to “the assessed valuation” of the property. When such levy is made then it becomes the duty of the assessor to make “separate rolls for the part of the parish included in the (levee) district.” Subsequently, the tax collector of the parish proceeds in the collection of this tax as that of other taxes. A new or independent assessment for levee purposes is not contemplated by the act. The levy to be made by the levee commissioners must be laid on the assessment already complete and finished. The duties of the commissioners in this regard are confined to the levying of the taxes. Gaither vs. Green, Tax Collector, 40 An. 362.

Had the statute, made provision for an additional assessment for levee purposes, in our opinion it would have been violative of that provision of Article 203 of the Constitution which declares that “ the valuation put upon property for the purpose of State taxation shall be taken as the proper valuation for purposes of local taxation in •every subdivision of the State.”

The duties of levee commissioners in this regard are, under the terms of the statute, exclusively confined to the levying of district levy taxes upoD alluvial lands of the levee district which are subject to taxation for levee purposes. They have nothing to do with their valuation. Nor has the assessor. Nor is the aid of the parish board of reviewers brought into requisition. Nor was there any occasion for the assistance of either. They had, already, and completely, performed their duties in reference to the parish assessment, and there was no additional service required, or necessary to the consummation of the levy of taxes for levee purposes.

Under this view of the law, it appears to be manifest that the only-question of doubt, or difficulty that could arise, is one of fact, and that is the liability vel non of the property for levee taxes, as alluvial land. That question is not one of assessment, but is altogether separate and distinct from assessment proceedings, and not concluded by the decision of the board of reviewers. Of course the tax-payer’s right to test the liability of his property for the payment of the levee tax on the ground that it was not alluvial would be recognized, independently of the determination of the levee commissioners.

In any view that can be taken of the statute in question, it is our opinion that it is constitutional.

Judgment affirmed.


author: Nicholls, O. J.

text:
    No. 11,141.
    The State ex rel. Victor Mauberret, Syndic, vs. N. H. Rightor, Judge Civil District Oourt.
    1. Where an order of court directing a forced surrender and under which the district judge has appointed a provisional syndic has been revoked by consent of the parties at whose instance it was rendered, the provisional syndic has no legal interest or standing in court to contest the action of the judge in revoking the order.
    2. The order appointing him provisional syndic was not a judgment. It was a mere ancillary conservatory order which shared the fate and fell with that to which it was incidental.
    B. A definitive syndic is in a sense the agent of the creditors, but a provisional syndic is at best an officer of the court. He has no vested right to his position entitling him to hold it until divested from the same by direct action.
    y^PPLICATION for Cerbiorari and Prohibition.

      Wynne Rogers for the Relator.
    R. R. Forman and Farrar & Leake for the Respondent.
   The opinion of the court was delivered by

Nicholls, O. J.

Relator alleges that by a judgment rendered by the judge of division t£D” of the Civil District Court for the parish of Orleans, the commercial firm of H. Kern & Son and the members thereof were granted a respite of six, twelve and eighteen months.

That thereafter on the 14th November, 1892, certain creditors of theirs took a rule against the said firm to show cause why they should not be declared insolvent and make a cession of their property and a provisional syndic be appointed to take charge of their effects.

’ That on trial, said rule was on 28th November, 1892, made absolute, and judgment was thereupon rendered declaring the said firm insolvents, ordering them to make a cession of their property, and appointing relator provisional syndic of their estate.

That said judgment was signed and became final the 2d of December, 1892.

That thereupon relator qualified as provisional syndic by taking the oath of office, giving his bond as fixed by the said judge in his said judgment, and complying with all the requirements of law, and received his letters as such provisional syndic.

That relator immediately entered upon the discharge of the duties of his office, and proceeded to obtain possession of all the assets and property belonging to said insolvents, and in furtherance of said object filed an intervention in the suit of “The EL B. Clafiin Oo. vs. H. Kern & Oo.,” said insolvents, which is a proceeding by attachment against the goods and property and rights of said insolvents pending in the Circuit Court of the United States for the Eastern District of Louisiana.

That in compliar.ce with the said order and judgment of the said Civil District Court, the said EL Kern & Son, on the 8th of December, made a cession of their property and surrendered to your relator their property, as shown by their schedule then filed, and their said surrender was thereupon accepted by the said court for the benefit of their creditors.

That thereafter, without any notice or demand on relator, the safd judge rendered a judgment on the 9th day of December, 1892, upon an ex-parte application in chambers, setting aside, revoking and annulling the former judgment rendered by him on the 28th day of November, 1892, as aforesaid, removing and destituting relator from his said office of provisional syndic, and appointing one T. C. Sachse to perform the duties of provisional syndic of said estate.

Relator avers that the rendition ex parte of the said judgment destituting relator as aforesaid was an illegal, arbitrary usurpation of power by the said judge, and that he was without authority or power to render said judgment because the law of Louisiana forbids and prohibits the removal of a provisional syndic, or other such officer, except contradictorily by a direct action, or by an appeal from the judgment appointing him to the proper tribunal.

That by this arbitrary exercise and usurpation of power on the part of said judge he has been and will be caused irreparable injury, and that he has no adequate remedy or relief except by writs of prohibition and certiorari, and such other relief as this court might be competent to grant under its supervisory powers.

Relator prayed that this court issue a writ of certiorari directed to the Hon. N. H. Rightor, Judge of Division “ D,” Civil District Court, commanding him to send up a certified copy of the proceedings in the suit of H. Kern & Son vs. Their Creditors, and that an alternative writ of prohibition issue directed to said judge prohibiting him from proceeding further ii the said cause until the further order of the court, and that he show cause why the said writs should not be made perpetual, and why the said order annulling the said judgment appointing relator provisional syndic should not be annulled and set aside.

The district judge has sent up the record as directed, and filed an answer denying all the allegations of relator’s petition except such as are therein admitted.

In this answer he admits that H. Kern & Son obtáined a respite in^. 1891, as alleged, and that on the 14th of November, 1892, B. R. For-man, Esq., representing certain creditors.of theirs, took a rule on them to show cause why the order granting the respite should not be set aside and they be ordered to make a cession of their property, and a provisional syndic be appointed, and that on the 28th November, 1892, said rule was made absolute, and on the suggestion of said counsel for said creditors Victor Mauberret (the civil sheriff) was appointed provisional syndic, and his bond fixed at $5000 — that he has filed a bond which has not been questioned, and that he otherwise qualified as provisional syndic, and that the order appointing Irm was signed 2d December, 1892.

He denies that relator as provisional syndic entered upon the discharge of his duties or took possession of any property of H. Kern & Son or of either of them, and avers that nothing went into his hands as provisional syndic. He further avers that he does not know what he did in the United States Court. That on the 8th of December, 1892, the same creditors who asked for the appointment of relator as provisional syndic and for the order of the 28th of November, 1892, asked for its revocation. That the attorney for relator was present in court and took notice of the application to revoke and cancel the appointment of relator, and argued the matter with great zeal. That he did not ask for time or any further notice, and it is not true that u without any notice or demand upon relator, respondent rendered a judgment on December 9, 1892, upon an ex-parte application in chambers, setting aside, revoking and annulling the former order.” That on the contrary it was done in open court, after a hearing had, on December 8, and after the attorneys for relator had been fully heard in open court, and had not asked for further time. That the court took the matter under advisement, and rendered its decision on the 9th December, in the presence of the counsel for relator.

That no motion has been made to revoke the order of December 9, 1892, and no appeal has been taken or asked for. Respondent submits that if an error was committed by him in signing the revoking order of December 9, 1892, relator’s remedy was by a motion to rescind, or by an appeal.

That it appeared by sufficient evidence that relator had no property in his custody or control, and had not taken possession of any property of H. Kern & Son.

Respondent further avers that on December 8, H. Kern, for himself and his firm, did make a cession as appears by the petition filed, but he expressly says voluntarily and not under the order of November 28,1892, and thereupon three creditors representing the aggregate amount of $48, asked for the appointment of relator as provisional syndic, he being present by his counsel urging his reappointment, and seven or eight creditors representing about $18,000 prayed that T. O. Sachse be appointed provisional syndic, and exercising his judicial discretion he appointed Sachse as provisional syndic.

That at no time during the course of the proceedings (at all of which relator was represented by his counsel) was there any exception to the jurisdiction of his court taken nor any want of notice pleaded, nor any delay asked for, and the whole matter was argued before him as judge of the court by the attorney for relator in open court, and was submitted and respondent acted after a trial and without any plea, oral or written, to the jurisdiction of the court.

An examination of the record shows that on the 28th of November, 1892, at the instance of several of their creditors, H. Kern & Son, who had in 1891 obtained an order for a respite, were declared insolvents, ordered to make a cession of their property, and relator was appointed as provisional syndic of the estate and that he qualified as such. It further shows that on the 8th of December, 1891, the firm presented a petition, accompanied by a schedule of assets and liabilities, in which they expressed their desire to make a ‘ ‘ voluntary surrender ” irrespective “of any order of court commanding them to do so.”

They prayed for an order for a meeting of creditors, for general relief and all needed orders in the premises. On the same day the-court rendered an order accepting this “voluntary surrender” and granting the incidental prayers.

This action of H. Kern & Son seems to have been predicated upon a knowledge on their part that it would be consented to by the parties at whose instance the order of the 28th of November, 1892, was entered, for on the same day their petition was presented, three creditors appeared, and, suggesting to the court that H. Kern & Son had made no surrender of their property, had filed no schedule, and that the provisional syndic had not gone into actual possession of any of the property, rights or assets of the firm, and that no further proceedings of any kind since the entry and signing of the said judgment had been taken by appearers, or said firm, except that said firm had that day made a voluntary surrender; and further suggesting that they, as the creditors at whose instance said judgment was rendered, did not desire at that time to force the filing of a schedule or the surrender of the property of H. Kern & Son, they consented that the judgment rendered and signed as aforesaid be vacated, annulled, revoked and set aside; and prayed that said judgment be at once revoked, annulled and set aside, the appointment of said provisional syndic revoked and his bond canceled.

On the 9th of December, 1892, reciting the written consent of their creditors, and that it had been further made to appear that H. Kern & Son had not made a cession of their property nor surrendered: the same under the aforesaid judgment, and that the provisional syndic had not gone into actual possession of the property, rights and assets of the said H. Kern & Son, and that it had been made to appear that the said creditors assented to the revocation, annulment and cancellation of the said judgment, and that the law and the evidence was in favor of the said creditors, the court ordered and decreed that the judgment of the 28th November, 1892, ordering the forced surrender and appointing relator provisional syndic be annulled, revoked and set aside, and the appointment of relator as provisional syndic recalled, canceled, annulled and declared of no force, virtue or effect, and his bond canceled. On the same day, upon the application of several creditors of H. Kern & Co., T. C. Sachse was appointed by the court as provisional syndic.

It will be seen from the order or decree of the 9th of December, 1892, that it first revoked directly the original order of the 28th of November, 1892, declaring H. Kern & Son insolvents, directing a forced surrender and appointing relator provisional syndic, and next directly revoked and recalled relator’s appointment as provisional syndic, and that the latter’s complaint is leveled exclusively at that portion of it having reference to himself. Relator in his pleadings ignores that portion revoking the order for a forced surrender, and he assumes that the cession made by H. Kern & Son was under and by force of the action taken against them by the creditors.

Relator is mistaken in designating as a judgment” that portion of the order of the 28th of November which appointed him provisional syndic, and in seeking to apply to it rules applicable to judgments. "What he relies on as a judgment is a mere temporary conservatory order, which the judge has the authority and the right to modify at his discretion.

The definitive syndic is in a sense the agent of the creditors, but the provisional syndic is at best an officer of the court. He has no vested right to the position, but holds it subject to the pleasure of the judge in so far as. he himself is individually concerned. It by no means follows that because the “ provisional syndicship ” continues until the appointment of a syndic proper, that a particular person can successfully claim that as provisional syndic he holds by a fixed tenure during that same period.

In the present case the court thought proper to revoke the order by which H. Kern & Son were thrown into forced insolvency. Relator was absolutely without right or interest to control the judge as-to this action before, or to question its legality or its propriety, after it had been taken. If it be subject to criticism or attack it must be at the hands of some one who has legal concern in it, and that the relator has not.

A sheriff could just as well contend that he could legally object to the action of a court in dissolving an attachment or an injunction where the parties in interest consent to it, by reason of his actual or prospective fees in the matter.

When the order for a forced surrender was revoked relator’s appointment fell as a necessary consequence of the revocation. It was incidental or ancillary to that order and shared its fate.

In L’Engle vs. The Florida Railroad Company the Supreme Court of Florida, in disposing of an appeal taken by a receiver from an order vacating, on motion, his appointment, said:

“ The receiver should not have been heard in opposition to this motion. He is not a party in interest. He has no standing in court for that purpose. He has no right to intermeddle in questions affecting the rights of the parties, or the disposition of property in his hands. 3 Md. Ch. Rep. 303.

“When his accounts come up for adjustment his relations will be different. He will then be a party in interest and may be heard, and' it will be the duty of the court to see that his rights are fully protected.” 14 Florida, 267.

In the case before us the provisional syndic has received no prop - erty.

The application has no possible foundation on which to stand.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the provisional order herein given be rescinded, and that the writs of certiorari and prohibition asked for be and the same are hereby refused.


author: Nicholls, C. J.

text:
    No. 11,181.
    The State ex rel. James Scallen vs. T. C. W. Ellis, Judge Civil District Court.
    The proceedings in the lower court being regular, legal and within the jurisdiction of the judge thereof, the writs applied for are refused.
    y^PPLIOATION for Certiorari and Prohibition.

      August Bernau for the Relator.

      Respondent in propria persona.

   The opinion of the court was delivered by

Nicholls, C. J.

Relator having failed to file an account and produce his bank book as syndic of the creditors of Henry E. G-autreaux, in the Civil District Court for the parish of Orleans, though legally cited and ordered so to do by the judge of Division “A” of that court —a rule was regularly served upon him to show cause why he should not be punished for contempt of court for refusing to do so.

He has filed an application in this court for writs of certiorari and prohibition, commanding the judge of Division “A” to abstain from executing an order by him rendered directing relator’s imprisonment for contempt of court.

We do not find the order referred to in the record, and we have reason to believe that though threatened, it has not as yet been made.

We have, however, examined the proceedings as far as they do appear of record, and find that on the day fixed for the trial of the rule, relator and his counsel appeared, and on their promise to comply the next day with the court’s orders, the proceeding was carried over to that time to enable him to do so, but that when the present proceeding was instituted, and even up to the time respondent filed his answer herein, nothing had been done by relator.

We find the proceedings regular, legal and within the jurisdiction of the judge who gave the order.

The reasons assigned to us as those which warranted non: compliance, should have been addressed to the judge of the lower and not to this court.

Relator was afforded an opportunity to show cause if any he had why he should not file his account, but instead of presenting himself and urging his grounds, he completely ignored the order. There was no necessity, for the purpose of explaining his situation, of any thorough knowledge of the affairs of the insolvency, if his reasons at that time were those which he has brought to our notice.

Any attorney at the bar could have easily represented him had he been unwilling, or felt himself unable, to appear personally.

The fact that he considered himself as having high privileged claims to the amount he mentions did not justify him in seeking to avoid all accountability for his actions, or for the funds in his hands.

He could and should have made a statement, and a simple one would have sufficed, as to what his pretensions were, and given the other creditors an opportunity of knowing what they were, and of testing them if they thought proper to do so.

If his course was in good faith, under advice of counsel in whose legal judgment he relied, he should have stated that fact to the district judge, who would unquestionably have given it the weight it was entitled to, and (unless we are mistaken as to the conclusion we have draw.n, that no order of imprisonment for contempt has as yet been issued) it is doubtless not yet too late for him to do so. He will have to look for relief to the District Court and not to ns.

For the reasons herein assigned the provisional orders heretofore granted in this ease are rescinded, and the writs asked for are refused.