author: Watkins, J.

text:
    No. 13,636.
    State of Louisiana vs. Robert Evans.
    Syllabus.
    Documents not annexed to a bill of exceptions and identified therewith in some legal way, will not be examined or considered on appeal.
    The province of the motion in arrest of judgment is to assign some error patent on the face of the record,. or some radical defect in it. The mere suggestion of an alleged incompatibility between the averments of the indictment and the testimony adduced on the trial is not good ground to be assigned in a motion in arrest.
    APPEAL from the Twelfth Judicial District, Parish of De Soto— Lee, J.

      Walter Guión, Attorney General, and Amos L. Ponder, District Attorney, (Lewis Guión, of Counsel), for Plaintiff, Appellee.

      Egan & Pegues for Defendant, Appellant.
   The opinion of the court was delivered by

Watkins, J.

The indictment of Robert Evans recites, that he did feloniously, fraudulently offer, alter, dispose of, put off and publish as true, a certain order for the payment of money, being for the sum of one hundred and forty-nine cross-ties, valued at ten dollars, drawn on J. A. Isgate, and purporting to he signed by O. S. Youngblood, with the felonious intent to defraud, etc.

He was tried by a jury, found guilty as charged, and sentenced to the penitentiary for three years. The case comes up on a bill of exceptions, motion in arrest and motion for a new trial.

The bill of exceptions sets out “that on the trial of the case that “ defendant objected to the admission of the alleged forged instrument, “because the indictment charges accused with altering an order, and “the instrument offered is not an order, hut a statement; that the in- “ dictment charges that the instrument altered purports to be signed by “ O. S. Youngblood, when in fact it does not purport fo be signed by “ any one; that the indictment charges the altering of a certain order “ for the payment of money and the instrument offered is not an order “for the payment of money, but simply an unsigned statement that “ one hundred and forty-nine cross-ties gotten out by Robert Evans had “ been taken up by Mr. Youngblood.”

The trial judge assigned no reasons for his declining to sustain the defendant’s objections; and no part of the testimony is annexed to the bill of exceptions — not even the order — or statement which is alleged to have been uttered or published as true, though fraudulent.

There are two papers, apparently in the original, which are pasted into the transcript, but same are in no manner identified with certain documents 1hat are alleged in the bill of exceptions, to have been admitted in evidence over his objection or exception. These papers do not bear any evidence of having been filed by the clerk on the trial, and same were not copied into the transcript, and no blank space is left in the transcript opposite where same are pasted in it.

Their presence in the transcript is in no way accounted for or explained.

By this statement, we do not intend to attach any fault or blame to counsel on either side; it is a fault, doubtless, if fault there be, that is attributable to the clerk or some amanuensis of the clerk in hastily preparing the transcript.

As said papers are not properly brought to the attention of the court in any legal way, no consideration can be given to them.

As this objection stands upon the statement of counsel alone, as above recited, we cannot undertake to alter the ruling of the trial judge.

The motion in arrest assigns “that the indictment against him in this case charges him with uttering an order, when indeed and in fact the instrument offered and alleged to have been uttered is not an order; that the indictment charges the defendant' with having uttered an order purporting to have been signed by O. S. Youngblood, when in fact the instrument offered does not purport to be signed by any one,” etc.

The judge assigns no reason for 'overruling this motion, but from simple inspection, it raises the question of incompatibility between the charge of the indictment and the testimony that was admitted under it.

That is not the province of the motion in arrest. It must assign some error patent on the record, or some radical defect in it.

The motion was properly overruled.

Judgment affirmed.

Rehearing refused.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 13,553.
    Mary Blume vs. City of New Orleans.
    Syllabus.
    1. In a suit for damages arising from an obstruction on a sidewalk, suit previously brought in the Circuit Court of the United States had the effect of interrupting prescription, although that court had no jurisdiction ratione personae, plaintiff being a resident of the State of Louisiana.
    2. Municipal corporations owe it to the public to keep the sidewalks in such a condition that pedestrians who are ordinarily careful will not be exposed to injury.
    3. When a municipality, vested with the power of maintaining uniform grades of sidewalks, permits one proprietor to raise his sidewalk and lets the grade of the sidewalk in front of the adjacent property remain out of grade for more than a year, and, owing to the abrupt rise of about five Inches at the dividing lines of the two sidewalks (where there was a long shed and no light), an accident happens, the city is liable for damages occasioned to a pedestrian who falls because of the obstruction and injures herself.
    4. Whatever rights the city may have against the owners of the lots on which the sidewalks are situated, are reserved.
    PPEAL from tbe Civil District Court, Parish of Orleans — King,

      O. B. <& S. Sansum, for Plaintiff, Appellee.

      Franh B. Thomas, Assistant City Attorney, and Samuel L. Gilmore, City Attorney, for Defendant, Appellant.
   The opinion' of the court was delivered by

Breaux, J.

Plaintiff' sued to recover ten thousand dollars as damages caused by an obstruction on which she stumbled, fell, and, in the fall, fractured and broke her right arm.

She avers that she greatly suffered during three (3) months and has lost the natural use of her right hand and arm.

The evidence discloses that on the night of the 13th of March, 1897, at about 1 o’clock, plaintiff was walking down Magazine street, near the intersection of Jaekson street, when she stepped against an obstruction and fell, as before stated.

Pier attending' physician testifies ’ that after she fell, she suffered greatly from an injury to the right wrist; the hand ánd forearm were greatly swollen. Some time after, he again examined plaintiff’s arm and found that there had been (as known to surgeons) a Oolly’s fracture of the radius bone, just immediately below the joint, and that her wrist was permanently injured; that she has some use of the wrist, and, gradually, by use,' will get more use of it, but that it will be very far from ever being restored to its pristine usefulness; that there is an impairment, also, of the fingers; and that there was necessarily, after the impact or blow in the fall, more or less permanent distortion and weakness of the wrist joint itself.

When the case was tried in 1898, plaintiff had not entirely recovered the use of her hand and she was, at times, not free from suffering.

As relates to the accident itself, the facts are that, on the night plaintiff fell there was no moonlight; it was dark at the place of the accident, that is on the dividing line between the Wood banquette and the Rhoel banquette. The banquette on the Rhoel property was raised, in 1895, five inches higher than the banquette on the Wood property. Between the properties the rise was abrupt; there was no incline at all. It was as it is with a step of that height. It was left in that condition and was in that condition when the accident happened to plaintiff, to whose steps it was an obstruction, as before stated.

A paving contractor testifies that he raised the sidewalk for Rhoel on Jackson and Magazine streets, in 1895, and that when he delivered his work to Rhoel, his banquette was five inches higher than the banquette of his neighbor, Wood; that he made application to the agent of the latter to let him raise his banquette for him, and this agent said to him that he had been notified by the city authorities to raise it, but that the city engineer told him not to raise it until the proper authorities established a proper grade.

After the accident to plaintiff, this contractor raised the pavement on the Wood property to the same grade as that on the Rhoel property but no change of the grade was made prior to the accident in question. The repair of the pavement and raising it had been postponed, in order ■ to establish another, and, as was said at the time, we infer, a proper grade.

The banquette inspector, under the commissioner of the city at the time, testified that the banquette on the Wood lot had not been repaired in 1897, on the day of the accident, but that it was repaired afterwards.

Plaintiff brought suit in the United. States Circuit Court on the 28th of August, 1897. In April, 1898, defendant filed an answer to plaintiff’s demand. It was discovered in that court, during the trial, that the court was without jurisdiction, as plaintiff was a resident of. the State of Louisiana. On that ground, the suit was dismissed in that court on the 22nd of April, 1899. Immediately her demand had been dismissed in the United States Circuit Court, plaintiff brought suit in the State court and alleged the different grounds upon which she based her action.

The defendant pleaded, in the State court, the exception of no cause of action to the plaintiff’s demand, and in the alternative, the prescription of one year.

Defendant’s answer denies all of plaintiff’s allegations and avers that defendant was guilty of contributory negligence. Further, defendant alleges that if any accident did happen as set forth in plaintiff’s petition, then it avers that the obligation rested upon Herman Rhoel and Robert L. Wood to keep their banquettes in good order. The defendant city prays that these property owners, Rhoel and Wood, be cited in warranty.

. The judgment condemns the city to pay to plaintiff the sum of twenty-five hundred .dollars with legal interest from the date of the judgment. No judgment was rendered against Wood and Rhoel called in warranty, and the call in warranty was passed without any action by the court, or any comment whatever. From this judgment, the de-. fendant city prosecutes this appeal.

The issue of no cause of action, prosecuted by way of exception, raises the first question for our decision. As an original question, considered independently of the other issues, plaintiff has stated a cause of action in her petition. We do not take it that the right itself to hold the city liable, if the cause be as charged, is denied by the terms of this exception. If, as relates to the cause of action, the city has permitted one of the owners to raise his sidewalk about six inches, and another owner of property, immediately adjacent, was (due to the city’s negligence), allowed for more than a year, to the knowledge of its officers, to let his sidewalk remain about six inches below the regular grade at a place covered by a long shed where there was little or no light, there is a cause of action. The defendant, if the above exception be not sustained, pleads the prescription of one year. Wo have seen that March the 13th, 1897, is the date of the accident in question. This suit was brought in April, 1899. Previous to the last mentioned date, suit had been brought as has been already stated in our statement of the facts. Defendant charges that without plaintiff’s fraudulent representations, the United States Circuit Court would not have been imposed upon and would not have issued citation and assumed jurisdiction. That may be quite true and yet we find no authority in law to decide that prescription was not interrupted. The Articles of the Code are imperative. Although a court may not have jurisdiction of a suit brought before it, prescription is Interrupted. The legal interruption follows, whether the court be competent or not. O. C. C. 3482-4; 3516-17.

Though there may have been false representations as urged, it none the less remains that the suit was filed in the Circuit Court, which must be held as having interrupted prescription.

Having concluded that the claim is not prescribed, we are brought to a consideration of the merits of the cause. Repeated decisions have settled that municipal corporations owe it to the public to keep the sidewalks in such ■ condition as will not expose the pedestrian to injury. The banquettes are to be kept in a condition safe enough to walk on in the night time as well as during the day.

The defendant had the power to establish and maintain a uniform grade; instead, it sanctioned two banquettes, on- adjacent properties, of dangerously different grades, one high and the other low. By the evidence the accident is traced directly to the obstruction, the shed and the defective light at the place where the obstruction was.

The plaintiff, it appears, was ordinarily careful. She had not before passed at night on the banquette at the place in question. The banquette was not safe. Plaintiff was injured while exercising due care. She suffered damages. As relates to the quantum, we do not think it should be reduced from what it was fixed by the District Court. The extent of the injury would not justify us in finding less.

There remains only one alternative to us and that is to affirm the judgment.

As relates to the call in warranty, in the present condition of the cause, we do not think the issues as against those the defendant prayed to have called in warranty should be passed upon at this time.

It is therefore ordered, adjudged, and decreed that the judgment appealed from is affirmed at appellant’s costs. Defendant’s rights, if any it has, are reserved.

Rehearing refused.


author: Nicholls, O. J.

text:
    No. 13,413.
    J. B. Camors & Company vs. The Union Marine Insurance Company, Limited.
    Syllabus.
    1. A warrant in an open marine policy stipulated that all risks should be reported to insurer as soon as known to assured. It was the custom for assured to promptly notify insurer of the arrival of a cargo, and settlement would be made at the end of each month. Held that a failure to report -risks known to assured breached the policy as an entirety at the option of insurer, and not merely as to the risks not reported.

      2. Acceptance, after arrival of cargo, of premiums or risks not properly re ported was not a waiver of the warranty so as to estop insurer to take advantage of his right to deny his liability on a loss because of previous failure to report risks promptly.
    8. That an epidemic prevailed and assured failed to make prompt reports of risks on account of the sickness of his clerks, did not prevent the breach , of the warranty vacating the policy.
    4. That insurer retained notice of other risks after a loss does not estop it to insist on the breach, it not having received the premiums on them, or done any affirmative act in respect to them.
    APPEAL from the Civil District Court, Parish of Orleans— Theard, J.

      Charles J. Theard and Solomon Wolff- for Plaintiffs, Appellants.

      Parherson & Tohin for Defendant-, Appellee.
   Statement op the Case.

The opinion of the court was delivered by

Nicholls, O. J.

Plaintiffs asked judgment against the defendant company upon an open marine policy of insurance for the sum of three thousand nine hundred and twenty-two dollars and seventy-seven cents, with legal interest from 14th of July, 1898, until paid, for the loss of a cargo of bananas.

They alleged that on the 29th of October, 1896, the defendant-entered into a written contract of insurance with them, bearing- the, its corporation, Number 423. That under said contract and otherwise the defendant bound itself to them, among other things:

To insure and reimburse petitioners against any loss which they might sustain by the desruction of any cargo of bananas and other goods and merchandise mentioned in said policy or contract of insurance from any of the causes mentioned therein.

It is stipulated in said contract or policy of insurance, which was of the kind commonly" known and described as an open policy, that all cargoes of bananas coming to petitioners from Bocas del Toro were insured by the defendant corporation for the account of petitioners, to the amount of fifty cents per stem or bunch.

That- said insurance was to attach and cover all cargoes consigned to petitioners from the time when- the goods and merchandise were laden on board any steamer coming from Bocas del Toro and other points, until the said goods and merchandise were discharged and safely landed at Mobile or New Orleans, according as the goods were consigned to petitioners at one or the other point, and the insurance was to so attach and cover the goods and merchandise, without notice of the consignment being given the defendant corporation, or its agents, at the time of the landing, but it sufficed if such notice was given sometime thereafter. The time being fixed by the well known custom and usages of the fruit trade at the port of New Orleans, which custom and usage was well known to the defendant corporation, and by the terms of the contract, and the course of business which had grown up thereunder between petitioners and the defendant corporation and the time being so fixed, by all the hereinbefore mentioned circumstances, was after the arrival and unloading of the vessel carrying the cargo, at the port of destination.

That it was further stipulated that upon said notice being given to the defendant corporation, it would charge petitioners and collect from them the premiums due on the value of the cargo, as shown by the given notice, and it was the custom of the said defendant corporation and its agents, to collect at the end of the month or shortly thereafter, all the insurance premiums, which had accumulated during the month.

That since the issuance of the described and mentioned policy of insurance on the 29th day of October, 1896, they had faithfully lived up to every obligation which they had assumed toward the defendant corporation.

That up to the 19th day of November, 1898, petitioners had faithfully and as promptly as was required by the course of business, which had been adopted by the defendant corporation in dealing with petitioners, reported each cargo consigned to them, and the same was noted by the defendant corporation and the premiums collected thereon from petitioners.

That the total amount of premiums so paid by petitioners to the defendant corporation from the date said policy was written, until November, 1898, amounted to $10,761.59, and that all of the cargoes upon which these premiums were paid were reported after the safe arrival of the vessels and cargoes at the port of destination, and after all risk and hazard were at an end.

That on the 30th day of October, 1898, the steamship Phoenix left Bocas del Toro, bound for the port of New Orleans, with a cargo of bananas, rubber and gold, consigned to petitioners, and on or about the 4th day of November, 1898, the said steamship was wrecked by a hurricane, and the said vessel and cargo abandoned by the master and crew of the vessel, all of which was, with greater certainty, shown by an annexed protest made in accordance with maritime law, by the master and other officers of said steamship on the 14th day of November, 1898, at the city of Mobile, Alabama, before Henry Ilanan, a duly authorized notary of said city.

That, in consequence of this disaster to the said steamship, the bananas on board thereof, consigned to petitioners, were totally lost and destroyed, and the loss so occurring was a loss within the terms of the policy described, which policy was at the time mentioned in the petition in full force and effect.

That they had duly presented to the defendant corporation tlicir claim for the loss hereinbefore described, but it delayed acting thereon until the 3rd day of January, 1899, nealy two months after the claim had been made and presented, and then the said defendant corporation refused to pay their claim.

That the cargo of bananas so totally lost and destroyed, consisting of 9,083 bunches or stems, was well worth 45 cents per stem, or $4,087.35, but from this sum should be deducted the premiums due on the following cargoes:

Premium on cargo — steamship Tyr............$26 68
Premium on cargo — steamship España ........ 50 62
Premium on cargo — steamship Condor ........ 25 31
Premium on cargo — steamship Tyr............ 29 32 — $4,087 35
Premium on cargo — steamship Phoenix........ 30 65 164 58
leaving the net amount due petitioners................$3,922 77

That under the terms of the existing contract, this amount- was due and payable on the 14th day of November, 1898, and amicable demand had been made in vain.

Defendant answered, first pleading the general issue. It admitted that- it had issued in favor of the plaintiffs, its policy No. 423, which policy was that commonly kiiown as an “open marine policy.” That said policy contained, among others, the express warranty that all risks under the policy should be reported to Lucas E. Moore, agent, as soon as known to assured.

That it was not liable to plaintiffs in any sum whatever, because the plaintiffs violated the express warranty above set out, and without which the policy would not have been issued, in this;

That plaintiffs frequently failed to report- risks, as stipulated, among others as follows:

“Steamship Condor, No. 2, October 7.
“Steamship España, No. 5, October 10.
“Steamship Tyr,. No. 3, October 11.
“Steamship España, No. 6, October 24.
“Steamship Condor, No. 3, October 25.
“Steamship Tyr, No. 4, October 29, 1898.”

That said risks were known to the plaintiffs on and before the dates hereinabove set out, but were not.reported to defendant.

That said failure of plaintiffs to report said risks was a breach of the warranty, so specially stipulated, upon the good faith of which the contract was made, and an avoidance of the policy.

That all of said risks were known to the plaintiffs prior to the loss of the steamship Phoenix, complained of in the petition, and by reason of the failure of plaintiffs to report said risks at the time of the loss of said steamship, the warranty had been violated; the policy was not in force, and defendant- was not liable for the loss.

The District Court rejected plaintiffs’ demand, and they appealed.

The policy upon which plaintiffs declare, reads as follows:

“Whereas it hath been proposed to the Union Marine Insurance Company, Limited, by Messrs. \J. B. Oamors & Company............ as well in their own name as for and in the name of all and every other person or persons to whom the subject matter of this policy does, may or shall appertain in part or in all to make with the said company the insurance hereinafter mentioned and described.
“Now this Policy Witnesseih:
that in consideration of the said person, or persons effecting this policy, promising to pay to the said company the sum of various' amounts as a premium at and after the rate of......as agreed........ per cent, for such insurance, the said company takes upon itself the burden of such insurance to the amount of fifty cents per stem of bananas from Bocas del Toro; forty cents per stem of bananas from Honduras.
“And promised and agrees with the insured, their executors, administrators and assigns, in all respects truly to perform and fulfill the contract contained in this policy.
“And it is hereby agreed and declared that the insurance shall be and is an insurance (lost or not lost) at and from British and Spanish Honduras and the United States of Colombia to New Orleans ‘and Mobile. • ...
“And it is also agreed and declared that the subject-matter of- this policy as between the insured and the said company, so far as concerns the policy, shall be and is as follows: Upon bananas, cocoanuts and oranges,......................also to cover such other risks as may be accepted and endorsed by Lucas E. Moore & Co., agents, upon the book attached to this policy...........in the ship or vessel called the steamers, including all risk of craft and boats to and from the said ship or vessel. Each craft or lighter to be deemed a separate insurance.
“And the said company promises and agrees that the insurance aforesaid shall commence from the time when the goods and merchandise shall be laden on board the said ship or vessels, craft or boat, as above, and continue until the said goods and merchandise be discharged and safely landed as above."

Written across the policy in ink are the words:

“Warranted that all risks under this policy shall be reported to Lucas E. Moore & Co., Agents, as soon as known to assured.”

Opinion.

This policy was attached to a book which was usually in the possession of Lucas E. Moore & Co., in which they entered from time to time the risks covered by the policy with details as, for instance:

,-Voyage-v Sum Date. . On wliati. Vessel. From— To— insured. Hate. Premium Sept. 23, 8000 bundles Tyr Bocas del New 1898. bananas. No. 2. Toro. Orleans. $3600.00 £ $27.00

The bills for premium were made out monthly by the defendants,sent to plaintiffs and paid by them.

We find in the record a number of reports or notices of which the following is one:

Please Insert Amount of Invoice.
Lucas E. Moore & Co., Agents of the Thames and Mersey Insurance Company, Limited; Union Marine Insurance Company, Limited.
Please Enter Open Marine Policy No.-
Name Amount Amount Onwliat. of vessel. From— To— invoice. insured. Bate. Premium 12,100 bunches bananas. Condor No. 2. Bocos. N.O....... $5445.00 £ $40.84.

Not covered if stored.

Approved.

New Orleans, November I, 1898.

Signed. J. B. Camors & Co.

Applicant.

No allusion is made in the policy otherwise than in the warranty clause heretofore copied. The rate of premium is not mentioned therein, it is only referred to “as agreed.”

The petition does not state the rate.

• The steamer Phoenix left Bocas del Toro, bound for the port of New Orleans, with a cargo of bananas, rubber and gold, consigned to plaintiffs, and on or about the 4th of November, 1898, the ship was wrecked by a hurricane and the vessel and cargo abandoned by the master and crew.

Plaintiffs reported the loss to the defendant’s agents on the 12th day of November, 1898. On the same day plaintiffs reported the steamship Espana due to unload some 11,000 bunches at 5 o’clock that evening. On the 19th of November, 1898, Lucas E. Moore & Co., stating that they would be obliged if plaintiffs would furnish them with a list of all their fruit, cargoes, and dates of arrival at New Orleans and Mobile during the last six months, plaintiffs furnished the list between May 10, 1898, and October 29, 1898, on the 19th of November, 1898. At the same time (November 19, 1898,) there were sent to defendant reports of two cargoes which had arrived on respectively the 7th and the 10th of October, 1898, being steamship Condor, No. 2, and Espana, No. 5.

These reports were dated on the day they were sent (November 19, 1898), but they were returned to plaintiffs so that they could be dated the date of their arrival, or within a few days thereafter. It is claimed by the defendants that in addition to those two cargoes, plaintiffs failed to report those arriving as follows:

Steamship Tyr, No. 3, October 11th.

Steamship Espana, No. 6, October 24th.

Steamship Condor, No. 3, October 25th.

Steamship Tyr, October 29th.

After the report of the loss of the Phoenix, all cargoes consigned to the plaintiffs, during November and December up to January 3, 1899, were reported to the defendants. They were:

Steamship Espana, No. 9, arrived November 12, reported November 15, 1898.

Steamship Joseph Oteri, No. 11, arrived November 13, 1898, reported November 15, 1898.

Steamship Espana, No. 10, arrived December 8, 1898, reported December 12, 1898.

Steamship Franklin, No. 1, arrived December 21, 1898, reported December 22, 1898.

On the 3rd of January, 1899, defendant’s agents wrote to the plaintiffs saying: “Eeferring to your claim for total loss of bananas, per steamer Phoenix, we beg leave to say that we are in receipt of a cable from the Union Marine Insurance Company, Limited, instructing us not to pay the loss because of your omitting to declare risks under your policy during the month of October.”

This suit followed.

The defence set up is not in respect to any matter connected with the cargo on the steamship Phoenix, or the loss thereof, but a claim that the general open policy has been forfeited by the failure of the plaintiffs to declare risks under that policy during the month of October, 1898, and therefore the cargo on that particular steamship was never insured.

'Both sides admit that all cargoes consigned to the plaintiffs, either at New Orleans or Mobile, from certain points mentioned in the policy, were covered or insured from the moment of the shipment, though neither the assured nor the insurer knew of the shipment.

George C. Bright, in charge of the insurance department of the business of Lucas E. Moore & Co., being upon the stand as a witness for the defendant' and interrogated as to the course of business between the parties, in connection with the book and policy of insurance, testified that the course of dealing between Lucas E. Moore & Co., Agents of the Marine Insurance Company, and J. B. Camors & Co., was that they were to be held covered on all cargoes of fruit coming into the ports of New Orleans and Mobile; it was understood that they couldn’t report their risks, of course, before they knew them, but as soon as they did know them they were to report them.

Their method of making these reports, it was well understood, was based upon the number of bunches discharged from the ship, and as soon as the ship was discharged and each bunch was inserted at a certain price, the entries in the book were mostly made by witnesses, some by clerks in the office; they were based upon the application which J. B. Camors & Co. sent to Lucas E. Moore & Co. from time to time. Witness had no particular means of ascertaining when the reports should come in, nevertheless he had noticed on one and possibly another occasion that Camors & Co. had not promptly made their reports according to the contract. Witness saw Mr. Victor Camors and urged upon him the seriousness of his neglect if he did not report the risks promptly; he particularly called his attention to his contract and he told witness that he fully intended to make prompt reports; He stated that on the 19th of November, 1898, suspecting that Camors & Co. had not turned in all their declarations, witness wrote them a letter and asked them to give him a memorandum of the last six months of all risks they had; they sent that memorandum and accompanying it were two declarations, one dated November 19, 1898, on the Condor, No. 2, and one dated November 19, 1898, on the España, No. 5.

In each case he looked up these vessels and found out that they had arrived more than a month before, and witness sent these declarations back to Camors & Co. by the boy, telling him to tell them that this was not right, and that these declarations should have been dated the day of the ship’s discharge or within a few days thereof, as soon as the bananas were counted. The man who made out these declarations then redated them correctly in red ink; witness told the boy to have Mr. Camors put them down in red ink (they were at first in black ink), to write the right dates when these declarations should have been made, and the boy had it done; the one on Condor, No. 2, being re-dated October 7th, -and the second, Espana, No. 5, being redated October 10th.

Witness had not seen these two shipments down anywhere at all on the lists furnished to the court. The two declarations were filed in evidence. In connection with it counsel filed a declaration of Camors & Co. of October 7th, on the Espana, of the same date on Phoenix, No. 4; another of October 10th on Condor, No. 3, and another of October 18th on the Phoenix. These declarations were-introduced over plaintiffs’ objection (and under bill of exception) that defendants’ proof should be confined to failure to report the five or six vessels in controversy.

Defendant introduced in evidence plaintiffs’ notice of October 11th of the Tyr, No. 3; of October 24th of the Espana, No. 6; of October 25th of Condor, No. 3; of October 29th of Tyr, No. 4; of November 14th of the Phoenix, No. 6. These notices were not entered in the book; witness could not remember when they were received at the office; he was in the office on all these dates; it was the custom of Lucas E. Moore & Co. to enter up notices in the book within a very-reasonable time; witness was in New Orleans from October 11th to about October 19th; from the 19th of October to the 8th or 9th of November he was away.

In this statement as to the course of business and the time of giving-notice of shipments the plaintiffs concur. The evidence shows that on the 30th of October, 1898, the steamship Phoenix left Bocas del Toro, bound for the port of New Orleans, with a cargo of fruit, and that on or about the 4th of November, 1898, she was wrecked in a hurricane and the vessel and cargo abandoned by the master and crew.

The cargo was unquestionably insured under the policy declared on if it was in existence at the time of the wreck.

The defendant contends that it was not then in existence; that the policy had been forfeited by a breach of warranty. That the breach of warranty is claimed to have- consisted in failing to report a number of risks which were known to them — this prior to the loss of the Phoenix.. The evidence shows that several cargoes of fruit, consigned to the plaintiffs and covered by defendant’s policy of insurance, arrived at the port of New Orleans in the eaidy part of October, 1898, and were discharged and not reported then; that others arrived and were discharged in the latter part of October and were reported to defendant.

Defendant contends that the holding so long' back of the earlier cargoes, followed by reports of latejr cargoes, was intentional and designed to escape the payment of premiums to them, and that the facls of the case would never have been known had not the loss of the Phoenix occurred.

The plaintiffs do not deny the fact that such reports were delayed and not reported until after later cargoes had been reported, but they deny that it was intentional, and assert that it was due to the prevalence of yellow fever in New Orleans at the time and to the sickness of their clerks who were charged with this particular duty; that mistakes of this kind had occurred before and been corrected, being recognized to be mistakes, and that the defendant had repeatedly collected premiums on cargoes so tardily or erroneously reported, and that the warranty clause was substantially abrogated between the parties, waived and- ignored.

That the policy being an open running or floating policy, each cargo was the subject of a separate insurance; that the warranty clause applied only to each separate cargo, and that the effect of a breach of the warranty in respect to a particular cargo, extinguished the insurance on that particular shipment, but left the general policy alive as to other then existing insurance on other cargoes, and as to future shipments.

Plaintiffs further contend that notwithstanding defendant knew of the facts on which they predicate their discharge from liability, they gave no notice to ihem that they held the policy to have been terminated, but continued thereafter to receiver without objection, notices of later shipments and permitted plaintiffs,. on the faith and strength of their belief of the continued existence of the policy, to leave these later shipments uncovered in other companies, and that by such conduct they had waived the forfeiture of the policy if it had, in fact, become vacated.

Construing the warranty clause, as both parties concur in construing it, as not bringing about a forfeiture of the policy by tardiness of reports where cargoes have arrived safely in port, and some time has been taken in ascertaining the extent of the same, the clause would be of little value to the defendants were we to hold that it applied and attached only to each separate shipment, and by its breach vacated only the insurance upon the particular shipment, with respect to which the breach occurred.

As both parties concur in the proposition that mere knowledge by the plaintiffs of the fact that particular shipments were at sea, does not enter as a factor as affecting the question of a breach of warranty; the practical result would be to reduce the warranty clause upon the policy to the giving to the insurer, in ease of the loss of a cargo, prompt notice of the loss and of claim. We do not think the scope of the clause should be so restricted and narrowed. We think it contemplated a broader protection to the insurer than this and entitled him, should he, on account of a delay in reporting or an entire omission to report a particular shipment, believe the assured was not acting in good faith, to at once avail himself of this breach of the warranty and vacate at once the whole policy.

Plaintiffs claim an abrogation or waiver of the warranty .clause as arising from the fact that upon a number of occasions where they had failed to make reports as promptly as they should, or by some inadvertence they had omitted to make reports in the regular order of shipments, the defendant had nonetheless charged and collected premiums upon the shipments. The cases referred to were all cases where the cargoes had arrived safely, and the shippers recognizing liability under the policy had tendered payment of the premium. It could scarcely be expected that the insurer would refuse to receive payment under such circumstances, but is thoroughly illogical to infer from the fact of such acceptance, a relinquishment on his part of the right to deny his own liability in case of a loss, by reason of a breach of warranty.

Warranty is inserted in the policy in the interest of the insurer; ho may waive or he may insist upon it, as he elects, in any given case.

Plaintiffs claim that their failure to make reports was due to the sickness of their "clerks. If there was in fact breach of warranty, that fact carried the vacating of the policy independently of the reasons therefor.

Plaintiffs contend that the retention, without objection by the defendant, of notices of shipments subsequently made by them, was a 'waiver of the prior breach of the policy.

If the defendant, knowing of the facts authorizing a vacation of the policy, and intending to claim said vacation, had failed to duly notify the plaintiffs to that effect, and retained, without objection, notices of subsequent shipments, plaintiffs would have had strong ground for urging the particular contention we are now considering, if those special shipments had been lost. That, however, is not the case before the court. None of the subsequent shipments have been lost, nor has the defendant entered the same ppon the policy book, or charged o> received premiums upon the same, or done any affirmative act, in respect to them. The cargo, in this case, was lost and the policy vacated prior to the fact on which this alleged waiver is based.

We have said that where there has been a breach-of warranty in respect to one shipment, the insurer may avail himself of that breach to vacate the whole policy, as to all existing and future shipments; as a matter of course the particular breach so sought to be made use of, must not have been itself waived.

For the reasons assigned, the judgment appealed from is hereby affirmed.

Rehearing refused.


author: Blanchard, J.

text:
    No. 13,793.
    Donaldsonville Ice Company vs. Schlitz Brewing Company.
    Syllabus.
    1. Applications for certiorari or the writ of review, under Article 101 of the Constitution, are not considered suits to be brought in the name of the State, on the relation of the applicant.
    2. The petition for this writ should be presented simply in the name of the plaintiff, or defendant, as the case may be, who is the applicant, preserving the original caption of the suit.
    3. The writ of review is differentiated, in this respect, from the remedial and supervisory writs of the law.
    IN RE Donaldson Ice Company applying for certiorari, or writ of review, to the Court of Appeals, Fifth Circuit, Parish of Ascension,- State of Louisiana.

      Edmund Maurm, for Petitioner.

      Edward N. Pugh, for Respondent.
   The opinion of the court was delivered by

Blanchard, J.

The petition herein begins as follows:

“The petition of the State of Louisiana on the relation of the Donaldsonville Ice Company”, etc.

The court has observed that most of the petitions addressed to it, embodying applications for the writ of review, begin in like manner.

This is not deemed the proper form in which to present the application.

Applications such as this are not considered suits to be brought in the name of the State on the relation of the applicant.

The "certiorari” of Art. 101 of the Constitution of 1898 is intended to subserve a different purpose from the writ of certiorari given by the Code of Practice.

Applications for the remedial writs of the law, of which the Code of Practice writ of certiorari is one, have always been brought' in the name of the State on the relation of the applicant.

This is considered correct and the practice should continue.

But the writ accorded by Art. 101 of the Constitution, being designed to effectuate a different purpose, should be kept differentiated as much as possible from the purely remedial and supervisory writs.

With this end in view, as well as to preserve, in all its different stages, the distinctiveness, the individual character, the uniformity, of the cause in which the application for the writ of review is made, the clerk of this court was, early, instructed not to give to these applications the title “State ex rel. so and so vs. so and so”, but to preserve the original caption of the suit by giving to the application made here the same title the cause bore in the court of the first instance and in the Court of Appeals.

In conformity with this, petitions addressed to this court for the writ of review should begin: The petition of......, plaintiff (or defendant, as the case may be) in the cause entitled......vs....., lately pending in the Court of Appeals for the......Circuit, Parish of......, State of Louisiana, with respect represents, etc. The term “relator’'' should not be used, but, instead, simple “plaintiff” or “defendant”, as the case may be.

These observations are submitted in the interest of a better and more uniform practice in such eases, and for the guidance of the profession.

With regard to the instant application, it is not considered that the ease presents those exceptional features, whether of law or fact, which, under the rule announced in repeated decisions, justify the granting of the writ of review, and the same is, accordingly, denied. ■


author: Nicholls, C. J.

text:
    No. 13,796.
    State of Louisiana vs. William Logan et al.
    Syllabus.
    1. If the recitals made by counsel of an accused party in a bill of exceptions are incorrect, the judge should specifically contradict them' and make himself a statement of facts.
    2. The judge in overruling, in the presence of the jury, objections of counsel of accused to the admissibility of evidence, should not convey to the jury his opinion of the facts of the case.
    APPEAL from the Third Judicial District, Parish of Claiborne— Edwards, J.

      Walter Guion, Attorney General, and J. C. Theus, District Attorney, (Lewis Guion, of Counsel), for Plaintiff, Appellee.

      Richardson & Richardson for Lee Slaton, Defendant, Appellant.
   Statement of the Case.

The opinion of the court was delivered by

Nicholls, C. J.

On the 8th of December, 1900, an information was filed in the District Court for Claiborne Parish, charging that William Logan and Lee Slaton did, on the 3rd of October, 1900, wilfully and feloniously accuse and threaten to accuse John Richardson of operating and being connected with an illicit and unlawful distillery, and to prosecute and cause to be prosecuted and to subject him to public scandal, ridicule, and unpleasant notoriety, with the intent to extort money, goods and chattels from him, and his father, Joseph Richardson.

We are informed in a bill of exceptions found in the record, that William Logan was interdicted and was not placed on trial.

The case went to trial against Lee Slaton. He was found guilty and sentenced to the penitentiary for one year and to pay' a nne of fifty dollars.

He appealed.

He relies for reversal upon complaints embodied in a bill of exceptions, and upon an assignment 'of error filed in the Supreme Court.

It appears from the bill that J. R. Richardson, a witness for the State, being upon the stand, he was asked by the District Attorney to stale “what either of the accused stated to him when they were at the house”, and that counsel of the defendant objected on the ground that in the bill under which defendant was being tried, there was no conspiracy charged or alleged, and therefore the evidence was inadmissible. That declarations, statements or threats made by one of the accused were not admissible against the others, and if admitted, the court should state to the jury that such statements, declarations or threats, should only be considered as to the one making same, and not to the others. That this objection was overruled, the court declaring that if not made in the presence of others, he would instruct the jury that they should not consider them, except as to the one making them, but if they were made in the presence of all though made by one, they should be taken as evidence against all. That the judge did so instruct the jury, but defendant reserved a bill.

It appears that after this Mrs. J. E. Eichardson was placed on the stand as a witness for the State and was asked by the District Attorney “if either of the accused had made any statement to her in connection with the matter under consideration;” that she answered: “Yes — -that Logan had;” that Slaton was at the cane mill, about seventy-five yards from the house; that she did not see Slaton at the time of her talk with Logan; that he was there when they left in the evening; that her conversation was not in the presence or hearing of Slaton; that she was asked to state “what Logan had said to her?” that to this evidence defendant objected for the reasons that the court had ruled on the same question asked of J. E. Eichardson “that if not made in the presence of all, the statements, declarations or threats were not receivable as against the one not making the same/’

That William Logan was not on trial and that any statement made by him out of the presence of the other defendant was inadmissible. That 'the court overruled the objection.

The bill of exception recites “that the court in ruling, on the objection stated that he had ruled as stated in the objection; that he knew the Supreme Court had ruled that statements and declarations made by one accused out of the presence of the others without an allegation or proof of conspiracy, were inadmissible, but knowing the facts in this ease as he did, the said evidence ought to be admitted; that if the Supreme Court knew the facts as he did it would be admitted and that he would admit it and that defendants could take their hill of exception if they wished.”

After this recital is found, the following statements:

“It had already been proven the defendants had gone to Richardson’s house with Winchester rifles and represented that one of them was a United States detective, and it appeared to the court that these parties were there with the common design — and each in the presence of the other — was doing his part to the one end, to get money from Richardson.
“The court did not state any fact or say as to what had been proven, and charged the jury as would appear from the written charge.”

Below this statement is the following:

“To said ruling and the statement made by the court in the presence of the jury as to what he, the judge, knew about the facts of the case, defendants, by counsel, excepted and tender this, his bill of exception. After submitting same to the Attorney for the State and prays the same be allowed filed and made a part of the record in this case”.

To this bill is affixed the signature of the judge without further comment.

We presume that that portion of the bill commencing with the words: “It had already been proven” down to the words: “To this ruling and the statement made by the court in the presence of the jury” is a recital by the judge.

Defendant’s counsel do not directly and specifically declare that the statements which they recite were made by the court in overruling their objection — were made by him in the presence of the jury, but they do so indirectly. They declare that the statements made in overruling the objections and that ruling must have been in open court and in presence of the jury. They declare that they excepted to the statements made to the judge in the presence of the jury as to what he, the judge, knew about the facts of the case. The judge does not contradict the recital of defendant’s counsel that he had made some statement before the jury as to what he knew of the facts of the case, but contented himself with saying that he did not state any fact or say as to what had been proven.

If it be true that the judge stated in the presence of the jury that defendant’s objections to the evidence were well taken generally, but that knowing the facts as he did, the evidence ought to be admitted and if the Supreme Court knew the facts as he did, it would admit the evidence”, he conveyed to the jury his opinion that under the facts as declared to be known to him there existed the condition of things which would be needed to make the evidence admissible; evidently in his judgment the existence of an exisling conspiracy between the parties to extort money.

The court, in our opinion, was not justified in making such a declaration in the presence of the jury. If the judge did not make the particular declarations attributed to him in the presence of the jury, he should have so stated, or at least recited what he did say, in overruling' the objections. We think his action prejudicial and that the verdict should be set aside, and the judgment annulled.

There is no necessity of our passing upon the questions raised by the filing of the assignment of errors in this court, by the defendant.

For the reasons assigned, it is ordered, adjudged and decreed that the verdict of the jury be, and the same is set aside, and the judgment thereon rendered, annulled, avoided, and reversed. It is further ordered and decreed that the cause be remanded to the lower court for further proceeding’s, according to law.


text:
    No. 13,659.
    State of Louisiana vs. Joseph, Alias Neg Primeaux.
    Syllabus.
    An objection of immateriality is a weak one, and the testimony objected 'to will be considered if it is of the same general character as other testimony not objected to.
    APPEAL from the Seventeenth Judicial District, Parish of Vermillion — -White, J., ad hoc.

      Walter Guión, Attorney General, and J. Nelson Greene, District Attorney, (Lewis Guión, of Counsel), for Plaintiff, Appellee.

      L. L. Bourges, for Defendant, Appellant.
   The opinion of the court was delivered by

Watkins, J.

The defendant was indicted with another for the larceny of two heifers, and from a verdict of guilty against the two and sentence to imprisonment at hard labor, he prosecutes this appeal, relying upon two bills of exception, one of which relates to the admission in evidence of an alleged confession, and the other to the introduction of irrelevant testimony.

With regard to the alleged confession, the testimony shows the following facts substantially to-wit:

That the accused being incarcerated in jail, sent for a friend for the purpose of getting him to sign his appearance bond, and after he arrived, he told him, as an inducement, he intended to make a confession, and that consequently the signing of his bond would be a mere formality, as the court was to convene soon.

To this statement, the friend assented, saying that he thought to confess was the best thing for him to do if he was guilty; that possibly his punishment would be lighter. But he declined to sign the bond.

Immediately afterwards, the sheriff was sent for, and the same statements were made by the accused in his presence, without any promise or threat being made.

The statement of the accused as a witness in his own behalf differed materially from the testimony of the other two. The trial judge chose to believe them in preference to the accused, - and held that the confession was voluntary; and in so doing we think he was right.

The testimony objected to as immaterial, related to the sale, in a neighboring town, of dressed meat to market men customarily and often, a short while previous to the indictment being found; but was quite similar to the kind pf testimony given by other witnesses and not objected to. The objection is without force, and the objection of immateriality is a weak one.

We find no error to the prejudice of the accused.

Judgment affirmed.

Rehearing refused.


author: Nioholls, C. J.

text:
    No. 13,464.
    Albert Weber vs. New Orleans and Carrollton Railroad Company.
    Syllabus.
    1. In a suit for damages for personal injuries, received by being thrown to the ground, in attempting to board a street railway car, while barely moving as it reached the street crossing, plaintiff must show some fault on the part of the employees of the company. Unless fault should be shown, there is no necessity for passing upon an issue as to whether the plaintiff was guilty of contributory negligence in attempting to board the car, under such circumstances, encumbered with articles in her hand, at the time. It has been held, (Ober vs. Crescent City Railroad Company, 44th Annual, 1064) that each case of this kind has to be passed upon, under its special facts.
    PPEAL from the Civil District Court, Parish of Orleans — Bilis, J.

      James T. Nix and John D. Nix (Thomas M. Gill, of Counsel), for Plaintiff, Appellee.

      Dart & Neman, for Defendant, Appellant.
   Statement of the Case.

The opinion of the court was delivered by

Nioholls, C. J.

The prayer of the plaintiff is for a judgment against defendant for three thousand one hundred and twenty-five dollars. The demand is based upon allegations that on the twentieth day of February, 1899, between the hours of six and seven o’clock p. m., petitioner’s wife, Margaret Ellen Weber, signalled car No. 39 of the defendant’s line going down Poplar street; that said ear came to a full stop at Eagle street, where she attempted to get on the same to be conveyed as a passenger to Canal street.

That she had placed one foot on the step and one hand on the rail of said car, and was just in the act of raising the other foot to place it on the step of said ear when said car was negligently started by the motorman, Livaudais, defendant’s agent, without any notice or hell from the conductor, for said motorman to start said car, and started so suddenly and quickly that petitioner’s wife did not have time to get on said car, but was violently thrown down and torn loose from said car and received serious and permanent internal injuries and intense suffering ; all without fault or negligence upon her part, but solely on account of the gross negligence and carelessness of defendant’s agent and employe, one Livaudais.

That petitioner, as head of the community, had been damaged in the sum of three thousand one hundred and twenty-five dollars, for which he prayed judgment.

Defendant answered, pleading first, the general issue; then averring that if the plaintiff’s wife was injured, it was through no fault or negligence of respondent or of its employees, but solely by reason of the fault and gross negligence of plaintiff’s wife.

Opikion.

This case presents no difficult question of law; its decision depends upon the testimony introduced which tends to establish the respective theories of the parties as to the facts.

The evidence shows, that a liftle after six o’clock on the evening of February 20th, 1899, Mrs. Albert Weber, wife of the plaintiff, signalled ear No. 39 of the defendant’s line on its way to Canal street, to stop and take her as a passenger. She was, at the time, standing at the lower river side crossing of Poplar street at its intersection with Eagle street.

While attempting to board the car, Mrs. Weber was thrown backward to the ground and into the side gutter, receiving (as the facts developed, the next day) quite serious injuries.

We have examined the. testimony with great care, and do not think the judgment can be sustained. The burden of proof was upon the plaintiff to establish the demand, and we do not think he has met it. We do not discover any negligence on the part of the defendant’s employees. The plaintiff’s wife alleged that when she put her foot upon the step of the car, it was at a dead stop; that it suddenly started forward, throwing her violently to the ground. On this statement she stands alone. The conductor and the witness, Irvine, both testify that the ear was still moving forward when she attempted to board it, and the motorman testifies that he slowed up, in answer to Mrs. Weber’s hail; that the car stopped, and having stopped, did not move again until after the accident. The witness, Blanchard, the only witness brought by the plaintiff in corroboration of his wife’s testimony, says that the car passed a little below the crossing and then backed up to it, and that it was during this backing that Mrs. Weber fell. The case is not one of a stopping of the car for the purpose of allowing a passenger to board it, and its premature starting for its destination before the passenger could get upon it.

The evening of the occurrence was dark and rainy; the plaintiff’s wife was encumbered with an umbrella, a glove and a pocket book, and the great probability is that, while the car was still under a slight forward movement, (barely moving, as the conductor testified), she attempted to get upon the ear, her foot slipped and she was thrown to the ground.

We do not find negligence in the defendant in this slight movement of the car, at that time. It has been held in Ober vs. Crescent City Railroad Company, 44th Annual, 1064, that the mere fact that a party desiring to board or leave a street ear may attempt to leave or. get upon it, while slowing up for a passenger, does not necessarily per se, constitute contributory negligence, but that the facts of each ease have to he examined.

Before the issue of contributory negligence is reached for decision, however, the primary question involved, that of the negligence of the defendant, has to be shown. Granting that plaintiff’s wife was guilty of no negligence in attempting to board the car, at the time and under the circumstances she did, the evidence fails to show fault on the part of !he defendant.

Eor the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from, he and the same is hereby annulled, avoided and reversed, and plaintiff’s demand is hereby rejected, and his suit dismissed.

Eehearing refused.


text:
    No. 13,426.
    State ex rel. Texarkana, Shreveport and Natchez Railway Company vs. E. M. Smith.
    Syllabus.
    A writ of mandamus will not lie unless the action desired is of absolute obligation on the part of the person sought to be coerced; and the relator must show not only a clear legal right to have the thing done, but to have it done in the manner and form in which he desires the respondent to perform it.
    The act must be clearly prescribed and enjoined by law; and the duty must be plain and positive. This is the sense of all the authorities.
    A board of levee commissioners created by statute to subserve a public purpose, and to effectuate same is given certain public lands for its administration and use, bave no power in • law to make a donation thereof to a private corporation; and no right by mandamus to compel its president to sign an act carrying same into effect.
    PPEAL from the Eirst Judicial District, Parish of Caddo — Land,

      Leonard & Randolph for Plaintiffs, Appellees.

      D. T. Land for Defendant, Appellant.
   Statement op the' Case.

The opinion of the court was delivered by

Watkins, J.

This is a proceeding by mandamus to compel the respondent, in his capacity of president of the Board of Commissioners of the Caddo Levee District of Louisiana, to obey the resolution of said hoard, and to sign, as such president, a deed to the relator for the lands described in accordance with and embodying the terms and provisions of same.

The respondent resisted the allowance to relator of the relief sought, and filed an extended return,

Upon the issues thus joined, the judge a quo made the writ of mandamus peremptory; and thereupon the respondent prosecuted this appeal.

Relator’s petition avers that in October, 1898, through its president, a proposition was submitted in writing to the Board of Commissioners of the Caddo Levee District, a corporation created by and existing under the laws of this State, to purchase all the lands of said levee board lying above Shreveport, and contiguous thereto, aggregating in quantity about twenty thousand acres — as particularly described in a list of same annexed to and made a part of the petition — for the price of three cents an acre; binding said corporation to pay taxes on said land for the period of not less than five years from the date of sale, and to have its railroad ^from Shreveport completed within that period, or, otherwise, the lands were to revert to said board.

That thereupon the said board received and considered said proposition, and appointed a committee from among its members to investigate and report upon said proposition; and that said committee had, by a majority, reported favorably on said proposition, and recommended its acceptance.

That at a regular meeting of said board, said majority report was received and adopted, and by a resolution of said board, said proposition was accepted, and said property was sold, transferred and delivered to relator, for the price stated — the respondent being instructed to make and sign without delay a deed to said lands upon the payment of the purchase price.

The following is a pertinent paragraph extracted from the relator’s petition, to-wit:

“It being provided by said resolution that the consideration of said sale is not only the three cents per acre, but the advantages to the levee district of the building of the Texarkana, Shreveport and Natchez Railway by said railway company, between Shreveport and Texarkana, through the alluvial section of Caddo parish, and the speedy listing of said lands for taxation; it being stipulated in said resolution, that on the failure of said railway company to build its road to the corporate limits of Shreveport within two years from date of resolution, the said vendee is to retransfer the lands to the levee board and receive back the price; and further, that on failure to pay taxes on said lands, same shall ipso facto revert to the board. A copy of said resolution is hereto annexed and made a part hereof, &c.”

Relator’s petition further represents that the defendant accepted the aforesaid resolution, and filed with said board its acceptance thereof in writing.

The petition further represents that, subsequently, relator caused to be prepared a deed to said lands, in accordance with said resolution, and embodying therein the provisions thereof, and presented same to the respondent in the presence of a notary and two witnesses, and tendered the full amount of the purchase price, and requested him to sign said deed as he was instructed to do by said resolution; and that the respondent refused so to do.

Thereupon, “relator represents, that it was the official duty of said president to obey the instructions given him by the board by the resolution aforesaid. That such instructions the said board had the power and right to give him 'as its officer. That the duty imposed upon him was purely ministerial; that the said president had and has no discretion in the premises, and is bound to sign such deed as instructed by said board.”

After tendering certain exceptions, the respondent makes return in substance, that it is his plain duty to refuse to sign the deed as demanded by the relator, and that he has refused to sign the same, because the resolution of a majority of the members of the board of commissioners of the Caddo Levee District, instructing him to sign same, is illegal and null, for the following reasons, viz:

“1. Because said board is the representative of a public corporation, known as the Oaddo Levee District, created by an act of the legislature of the State of Louisiana, for the purpose and object of reclaiming all the alluvial lands in said district from overflow, and in aid of said public enterprise the State of Louisiana donated the lands set forth in (relator’s) petition 'to said levee district for said object and purpose; and said lands or their proceeds are necessary to the carrying out of the objects and purposes for which said district was created; and it is the duty of said board to obtain therefor the highest market value.”

2. Because said pretended sale of said lands embraces all of the lands in said district above Shreveport, now owned by said levee district, and is a disguised donation by said'levee district to said (relator) of said lands; and said levee district has no power or authority in law to donate its lands or property to said railroad.

3. It further returns that said lands are now worth, and were well worth to the levee district, when the resolution of the board of commissioners was passed by a majority thereof, at least thirty (30) cents per acre; and that a tona fide offer for said lands was made at that price to the board by a responsible party, which was refused by the majority of said board, and that of the relator accepted.

There are additional grounds of defense that are set up in the return which need no present mention; and it is concluded with the statement that respondent, in refusing to sign said act, acted in good faith, in the exercise of the discretion vested in him by law, and in the interest of the Caddo Levee District.

For the foregoing' reasons, he prays that the relator’s demand be rejected, and that he be discharged from the mandamus.

The judge a quo, in the course of his reasons for making the mandamus peremptory, amongst other things, said:

“The resolution of the board accepting the offer of (relator) to purchase the- land in question, and directing the president to execute the instrument of conveyance, is, on its face, within the express powers of the board.
“The defenses set up are based on alleged facts de hors the record, and are in effect a demand that the sale be decreed null and void; and urged not by the board or any party in interest, but by an officer of the corporation, who, as such, has no interest in the question.
“Such a decree would be ex parie and not binding on the board, which is not a party to this proceeding.”

He quotes from State ex rel. Banking Co. vs. Auditor, 47th Ann. 1679, the following extract as bearing out the proposition he announced, viz:

“In mandamus proceedings against a public officer, involving the performance of official duty, nothing can be enquired into but the question of duty on the face of the statute, and the ministerial duty he is charged to perform.”

He also cited State ex rel. Crescent City Railroad Company vs. City Engineer, 49 th Ann. 676; State ex rel. Comerford vs. Mayor, 45th Ann. 269.

Considering the respondent’s return in connection with the reasons of the district judge, in the light that is afforded by the ordinance in question and the law under which same purports to have been adopted, we are to consider and determine whether the respondent is authorized (1) to raise the question of the ordinance being in legal effect a donation in disguise to the railroad company, in disregard of the limitation that the law has placed upon the powers of the board of commissioners; (2) to raise the question of a discretion being vested in the board of commissioners by the law which, called it into existence, with regard to the price it should accept for the public lands of which it was given 'control for the consummation of the purposes specified therein.

In reality the two questions propounded are almost identical; for the right of the board to exercise its discretion as to the price of sale, and to accept the smaller and refuse the larger bid might, under, some conditions, involves a question of donation in disguise. Indeed, that is the question which respondent’s counsel press upon our attention; and they insist that, under the evidence that is furnished by the minutes and ordinance, the board of commissioners has been tendered a much higher price for the lands than offered by the railroad company at the time of the adoption of said ordinance accepting its bid; and that same were worth much more, then and now.

They refer to the provisions of the ordinance itself to show that the three cents per acre which is mentioned in the deed and ordinance, is not the true or paramount consideration for the sale.

The deed which the respondent is mlandamused to sign, discloses that twenty thousand acres, and more, were bargained to the relator for the paltry sum of $610.83; and that the minutes of the levee board show that a bid of thirty (30) cents an acre — that is $6000.00 for the whole body of land — was, by a responsible person, offered for the whole of the land, but that said bid was rejected, and that of relator ac- ' eepted.

These facts are disclosed by the minutes of the official proceedings of the board of commissioners at the date and at the time the ordinance in question was adopted. They do not constitute evidence of matters in pais, or those de hors the record of the proceedings of the board.

That is not extraneous proof, but res integras.

The recitals contained in the official minutes of the board are referred to as furnishing proof of the illegality of the ordinance of contemporaneous date, in that the board rejected a cash offer of thirty cents per acre and accepted an offer of three cents per acre, because same was, in legal effect, a donation in disguise, and that the board was without discretion to refuse the higher and accept the lower bid.

Thus it is that the question is raised, upon the minutes and resolution of the board of commissioners, whether it was the duty of the respondent, as a member of same and its official head as president, to accept and acquiesce in the action of the majority as binding and obligatory upon him; and to execute a deed to the railroad company of all the lands the corporation possessed conformably to its provisions, notwithstanding said alleged sale was, in legal effect, a donation on its face and upon the ordinance and the law.

This is not a question between the respondent as president of the board of levee commissioners and the board, with regard to the respective powers that each one possesses over the subject matter under consideration; nor of the duty of the president of the board, as such, to recognize and give legal effect to a resolution that has been adopted by a majority of the board. For it may be, at once, conceded that a majority of the commissioners had a legal right to adopt the ordinance in question, in so far as a mere question of power and authority is concerned; and, in our conception, the judge a quo proceeded no further than this in the reasons he assigns for his decree.

This is a question of right on the part of the majority of the commissioners, under the law, to pass the ordinance in question, if the act of sale was, in legal effect, a donation in disguise.

The ordinance is of the following tenor, viz:

“Be it resolved by the Board of Levee Commissioners of the Caddo Levee Board, That the board hereby accepts the proposition for the purchase of its lands above Shreveport made by Geo. W. Fouke, president Texarkana, Shreveport and Natchez Railway Company, and the board does hereby sell, transfer and deliver with such title as it has to said Fouke, president of said road, all of the said lands in that portion of the levee district, above Shreveport, at the price of three cents per acre, and the president of this board be and is hereby instructed to make the necessary deed without delay to said vendee, and the said vendee to pay the price at the time of signing the deed to the president of this board. The consideration of this sale being not only three cents per acre, but the advantages to the district of the building of the Texarkana, Shreveport and Natchez Railroad by said company, of which said Fouke is president, between Shreveport and Texarkana through the alluvial section of Caddo, and the speedy listing of said lands for taxation. On the failure of the said road to build to the corporate limits of Shreveport, within two years from this date, the said vendee to re-transfer said lands to the board and receive back the price, and at the time of re-transfer, the obligation as payment of taxes to cease. And further, on failure to pay the taxes, as stipulated, the lands shall ipso facto revert to this board.
“All the above to be embodied in the deed to be signed by the president.”
“To Hon. Oaddo Board of Levee Commissioners: I accept the resolution this day passed relative to your sale of your lands to me.
(Signed) “G. W. Fouke, ,
“President Texarkana, Shreveport and Natchez Railway.
“February 1st, 1899.
“Ne varietur for identification with act of sale from Caddo Levee Board to T. S. & N. Ry. C., this 3rd day of August, 1899.
“Allen Rendall, Notary.
“Ne varietur for identification with notarial act of certificate of tender from G W. Fouke, president T., S. & N. Ry. Co., to E. M. Smith, president Caddo Levee Board, this 3rd day of August, A. D. 1899. “Allen Rendall,
“Notary Public, Caddo Parish, La.

It is quite true that the declaration is distinctly made in the ordinance that the lands were sold to the railroad company “at the price of three cents per acre,” but it is also quite as distinctly stated therein, that “the consideration of this sale (is) not only (3) three cents per acre, but the advantages to the district of the building of the Texarkana, Shreveport and Natchez Railroad by said company * * * between Shreveport and Texarkana through the alluvial section of Oaddo (parish), and the speedy listing of said lands for taxation.” .

Special attention is attracted to this stipulation of the ordinance by an averment in the petition, but same is omitted from the written tender of the purchase price which was made by the railroad company in alleged pursuance of the aforesaid ordinance.

The official minutes of the proceedings of the board at the meeting whereat the aforesaid ordinance was adopted, disclose the fact that a minority report of the land committee was made, and that same was to the effect that the said proposition of the railroad company “be rejected, for the reason that (same) is not an offer to buy the lands of the levee board, but one for the donation of said lands by the board in aid of a proposed railroad, and that this board has no authority to make donations of its assets or property.” . .

The minutes further show that this minority report was voted down, and the majority report was adopted.

There is in the record a letter that was written by the president of the railroad company which clearly shows that such was his appreciatkn oí said ordinance.

Certainly, there is nothing in the law which created the board to justify the pretension that it had the right, or was given the power to make a donation to any person or corporation.

The respondent is the official head of a public corporation which shares te a limited extent the power of the State, but he can exercise no other power than that which is particularly specified in the enabling law; and can do no other act than such as may tend to effectuate the legislative intention and purpose.

It is a familiar principle in jurisprudence that the law deals alone with results, and not with forms, and that maxim is particularly applicable to this case.

And, if we find that the ordinance is, in legal effect, a disguised donation, instead of an intended offer of sale pure and simple, it cannot be the legal duty of the respondent to carry out such an illegal purpose byr signing the proposed act; for upon that hypothesis, the signing and delivery of the act would not effectuate the donation, while it might carry to the railroad.company a legal title to the land.

Referring to the enabling statute, we find, that the legislature incorporated inte, a levee district known and styled as the Caddo Levee District, “all that portion 'of the alluvial lands and all lands subj'ect or liable to overflow in the parish of Caddo,” etc.

Sec. 1 of Act 74 of 1892.

It gave the control and management of same to said levee board, and fully vested all of its powers and duties in a board of commissioners to be composed of seven persons.

Ibid Secs. 2 and 4.

One of the duties which were imposed upon said board was to “devise and adopt rules and regulations for carrying into effect and perfecting of a comprehensive levee system, having for its object the perfect protection of the entire district from overflow.” Ibid Sec. 5.

In order to e-nsummate and carry out the aforesaid objects and purposes, a revenue is to be raised by “the levy annually upon all of the property in the said district subject to taxation for levee purposes, a district levee tax of ten mills on the dollar of its assessed valuation.” &c. Ibid Sec. 6.

And, in order to place the board in a position to fully carry out the objects and purposes of this enterprise, and “to furnish resources to enable the said board to assist in developing, establishing and completing the levee system in the said district, all lands now belonging * * -:i to th.e State of Louisiana and embraced within the limiw of the levee district as herein, shall be and the same are hereby granted, givui, bargained, donated, conveyed and delivered unto the said boaid of commissioners,’’ &c. Ibid See. 9.

For the purpose of enabling the board to raise additional funds, it was authorized to issue bonds to the amount of two hundred thousand dollars, the payment of which are to be “secured by taxes, and by salo oí public and State lands” — said bonds to become due in thirty years. Ibid See. 10. •

A careful inspection of the act discloses that no specific power or authority is given to the board of levee commissioners, to sell, or otherwise dispose of any, or all, of the lands which the legislature has clorMied to it; but that, on the contrary, the intention of the legislature is clearly and expressly stated to be that they were given to the board as a means of furnishing it with “resources.”

And it is manifest from the entire scope of the act, that these lands were expected to supply the board with “resources” through the instrumentality of the ten mill tax, and the bond issue that is to be predicated thereupon.

The only mention that is made in the statute with reference to the power of the board to make sale, is found in the section which treats of the corporate powers with which the corporation is endowed, thus:

“The said board shall have authority to buy, and hold, or to sell and transfer titles to property; to make and execute contracts, and to do anil perform any and all acts necessary to carry out the objects of this act.” Ibid Sec. 4.

It is our appreciation of the statute, that the general assembly intended to create a levee district, and to place its government and control in the hands of a corporation, or board of levee commissioners; and that the purpose and object of said corporation was the perfection of a comprehensive levee system, and the protection of the entire territory within the district from overflow.

That in furtherance of that definite purpose and object, certain lands were donated to the board, in order that same might be made the basis of an annual ad valorem tax, and serve as a foundation upon which a thirty year bond issue might securely rest.

In our appreciation the ordinance, which proposes a sale of twenty thousand acres, and more, of land — same being all the lands in the levee district, and, in fact, all the State had donated to the board for levee purposes — to a railroad company that has not yet completed its roadbed and superstructure, at the price of three cents an acre, the entire price only aggregating $610.00, is in direct conflict with, and in open violation of, the law which created the levee district and called the board of levee commissioners into existence.

The trend of same, in spirit if not in purpose or declared object, evidently is to presently and irrevocably divest the board of commissioners of its titles, and vest same in another and private corporation which owes no duty to the State; and by so doing, it, at the same time and by the same act, rendered itself completely impotent for the accomplishment of the purposes which the legislature reasonably expected it to accomplish — and provided same should be perfected.

But when we consider the further and still more important provision of same, to the effect that “the consideration of this sale (is) not only (three) 3 cents per acre, but the advantages to the district of the building of the Texarkana, Shreveport and Natchez Railroad by said company * * * between Shreveport and Texarkana, through the alluvial section of Caddo, and the speedy listing of said lands for taxation,” our conclusions! already stated in regard to the proposed disposition of all the lands in the district, are strengthened and confirmed; and it becomes quite apparent that the act of sale was only intended to effectuate a disguised donation of same to a private corporation in opposition to the purpose and clearly expressed intention of the legislature in making the donation thereof to the Caddo Levee District.

Being dispossessed of all of its lands, the board could neither assess and collect taxes nor issue bonds; and the vile price realized therefor was wholly inadequate for the purpose proposed to be accomplished.

In this situation of affairs, its sole reliance must be upon the very indefinite and equally inadequate promise of the relator; and this fully appears from a casual inspection of the ordinance and the law which created the board.

We have carefully examined the two leading cases to which our attention has been attracted as being decisively in favor of the relator, and upon which its counsel confidently rely for the affirmance of the judgment in its favor.

In State ex rel. Comerford vs. Mayor, 45th Ann. 269 — it being one of the cases cited — the following is given as a fair synopsis of the law of mandamus as it has been interpreted by numerous decisions of the highest courts in various States of the Union, viz:

“This writ will not lie unless the action desired is of absolute obligation on the part of the person sought to be coerced. The relator must show not only a clear legal right to have the thing done, but also a duty by the person sought to be coerced, in the manner sought, and that he still has it in his power to perform the duty required.
“The action must not only be in the respondent’s power to do, but it must be his duty lo do it. The act must-be clearly prescribed and enjoined by law. The duty must be plain and positive.”

In State ex rel. Banking Company vs. Auditor, 47th Ann. 1679, relators sought to compel the respondent, by a writ of mandamus, to perform a ministerial duty which was imposed upon him by a concurrent resolution of the general assembly, directing him to issue certain specified warrants in their favor; and the only defense seriously urged was the unconstitutionality of the law; and this court held that executive officers of the State government have no authority to decline the performance of purely ministerial duties which are imposed upon them by a law, on the ground that it contravenes the constitution.

Finding the act desired to be one of absolute obligation on the part of the respondent, and that the relators had a clear legal right to have the act performed, the court made the writ of mandamus peremptory.

But this is not such a case.

In State ex rel. Morris vs. Secretary of State, 43rd Ann. 590, the court had under consideration a mandamus, the object of which was to compel the respondent to promulgate as a law an enrolled bill which had been signed by all other officers designated by the law; and in the course of the opinion it was held that “the right of the secretary of Slate, under the provisions of Article 256 of the Constitution, and his return to a mandamus proceeding1, to raise issues, exclusively appertaining to the inherent illegality of a proposed constitutional amendment, is very questionable, indeed, and consideration of them must be restricted to such as are apparent and glaring.”

Again:

“Of course, the official journals import absolute verity, and form conclusive proof as to the proceedings themselves, when considered in reference to any other evidence of such proceedings; but the question here is as to what constitutes the journals, and whether the printed journals have been made the actual repository of the proceeding's of the two houses of assembly as they transpired.
“Do they truthfully represent what proceeding's did. take place, or do they contain misrepresentations of facts ?
“It is quite clear to our minds that we should most certainly assume much too great and too grave a responsibility, and extend the doctrine of legal presumptions much too far, if we were to venture the assertion that legislative journals formed conclusive proof of legislative proceedings, and declined to entertain and consider evidence of unauthorized alterations and interpolations in the journals, whereby it could be made to appear that they did not faithfully and truthfully recite proceedings as they did transpire.
“The true distinction to be taken, in our opinion, is that no extrinsic proof is admissible to contradict the facts which are established by the journals; but fraud, error, mistake, or the improper exercise of judgment, on the part of a State agent, or representative, existing intrinsically, may be shown.
“This is not a question of what proof is furnished by the journals as contra-distinguished from other proof of a given state of facts; but it is a question of the journals being, in themselves, a correct exposition of the facts as they happened.”

That, in our opinion, is quite a parallel case to the instant one.

In State ex rel. Bienvenu vs. Secretary of State, 17th Ann. 156, the court had under consideration a mandamus to compel the respondent secretary of State to affix his official signature and seal of office to a commission which had been signed and issued by the governor of the State to the relator as sheriff of the parish of Orleans; and the return of the respondent was that the commission was null and void and of no force, because the governor was without warrant of law to issue it, and he can not be compelled to lend his sanction to the same by countersigning sucli illegal commission — his contention being that -one Alfred Shaw was holding and exercising the office under a commission which did not expire until the next regular election for sheriff; and that the governor was without power or authority to supersede said Shaw by appointing Bienvenu. On consideration of the authorities, the court held that “the secretary of State can not legally go behind the commission issued by the governor, in due form, to Bienvenu, and examine into the facts upon which the executive’s action was predicated.”

The court further held that “the signing of the commission by the governor of the State is an official duty imposed on him by the constitution ; it emanates from the executive’s authority, and is issued from the proper office.

“The governor is by the constitution vested with the exclusive power to make some, and, under certain contingencies, other official appointments, and such appointments are official acts.
“He must determine for himself from information communicated to him when appointments become necessary; but he is under no legal obligation to communicate either to the secretary of State, or to any one else upon what information he acts.
“The secretary of State is not to suspend action to inquire why and wherefore any appointment by the governor of the State is made.
“His, duty is plain; he is not directed, but ordered by law, to perform ■it. When commissions from the governor need authentication, he shall affix his official signature and the public seal of the State, for these are official acts. Whatever improvidence or illegality there may be in the issuing of commissions, that concerns not him. His authenticating any official act can never compromise him, for he has no discretion to exercise regarding it.”

That decision is instructive in view of the fact that it drav s a clear line of distinction between the case under consideration by .he court and that in Morris vs. Secretary of State. In considering the scope, of the writ of mandamus in this case, it must be borne in m; id that the ease comes to us on appeal; and that, therefore, this court is exercising its appellate, and not its supervisory jurisdiction. On'this subject, the court said, in State ex rel. Moyse vs. Judge, 50 Ann. 492, that “it is quite apparent that the judges of the District Court fulfill all the requirements (of the Code of Practice); and if is manifest that the power of these judges is not limited to cases wherein the writ comes in aid of their appellate jurisdiction, but extends to all classes of causes because they are judges of the courts which exercise appellate jurisdiction as well as ordinary civil jurisdiction” — the province of the writ being to command judges of the inferior courts and other public officials to render justice and perform the duties of the offices conformably to law.

Code of Practice 837.

Comparing the principles announced in those cases, we find that in State ex rel. Morris vs. Secretary of State, this court recognized the right of the respondent to test by his return to the mandamus the perfection and completeness of a legislative act in respect to'its having-passed through all the formal proceedings requisite to its promulgation as a law; whilst in State ex rel. Banking Company vs. Auditor, this court declined to recognize the right of the respondent to test in his return the validity of a complete and perfect legislative act, on the ground of its uneonstitutionality — holding that the parties interested only could do this in a contradictory proceeding.

Applying those principles to the instant case, we are of opinion that the respondent as president had a perfect legal right in his return to test the authority of a majority of the board of levee commissioners to adopt a resolution, which upon its face and its terms, imports a donation in disguise to a private railroad corporation, and uU'ra vires — and the adoption of which was resisted by a minority thereof, including the respondent, on those grounds — and decline to put same into operation until the court should decide the question.

The resolutions of a quasi political corporation, such as a board of levee commissioners, created by special legislative enactment for designated public purposes — like the ordinances of a police jury — do not import absolute verity like the statutes of the State, because they are not admissible in evidence until authenticated by proof, and are not self-operative.

Such a resolution can not be held to import absolute obligation on the part of such a board, or confer upon the private corporation dealt with !‘a clear legal right” to have the act completed by mandamus.

At most, the resolution is a mere promise of sale which may entitle it to an, action to compel a specific performance, or the payment of damages.

Whilst this court appreciates the care and sound judgment which invariably characterize the decisions of our distinguished brother of the district bench who decided this case in the first instance, it feels entirely persuaded that the relator has not stated a case entitling it to have the decree in its favor affirmed; but, on the contrary, it has, upon a careful study and consideration of the important and far-reaching issues involved, arrived at the deliberate conclusion that it is not entitled to the relief that is demanded.

. The judgment appealed from must be reversed.

It is, therefore, ordered and decreed that the judgment which is appealed from be annulled and reversed; and it is further ordered and decreed that the preliminary writ herein granted be set aside, and that the demands of the relator be rejected at its cost in both courts.

Mr. Justice Blanchard, concurring, expressed his views orally from the bench.

The Ohief Justice dissents, and reserves the right to file his reasons hereafter.

Mr. Justice Monroe dissents from the view entertained by the majority of the court that the respondent is competent to raise the issues upon which the decision rests.

Rehearing refused.