author: Watkins, J.

text:
    No. 13,359.
    William Kyle vs. Wilson McKerrall, Liquidator; T. C. Lawless, Intervenor; Consolidated with T. C. Lawless vs. Wilson McKerrall, Liquidator; William Kyle, Intervenor.
    Syllabus.
    In a settlement of a partnership by a liquidator chosen by the partners, the agreement between them is his guide, and must control the confection of his accounts ; and, in ease either partner can designate errors or omissions therein, the court will order the same when rendered, to be so corrected as to conform to the evidence contradictorily taken.
    APPEAL from the Twenty-Fourth Judicial District, Parish of St. Mary — Allen, J.

      D. Gaffery & Son for Wm. Kyle, Appellee.

      Carroll & Carroll and Wilson & Mayer for T. C. Lawless, Appellant.

      Percy Saint for Liquidator, Appellee,
   The opinion of the court was delivered by

Watkins, J.

This is a controversy with regard to the liquidation and settlement of the affairs of a saw-mill partnership — William Kyle and T. C. Lawless being the partners, and the latter the business manager. Kyle was a steamboat man, and devoted himself to towing lumber, while Lawless operated the mill, had the management of its affairs, and superintended the keeping of the accounts.

The partnership commenced in 1889, and was dissolved in 1896; and, thereupon, a liquidator was appointed pursuant to an agreement —his functions being confined to an examination of the books, and effecting a settlement of the business between the partners.

The liquidator took charge and received from Lawless a number of books which embraced the transactions of the several years during which the partnership existed. It is claimed that Kyle was the monied man of the firm, and had been from the beginning a large creditor of the partnership; and that Lawless was a man of limited means, and the partnership owed him nothing but his salary, upon which he lived.

The agreement between the parties which brought about the liquidation of the partnership affairs bears date January 27, 1896, and is signed by both Kyle and Lawless, and is of the following tenor :—

“Be it know, that, on the 27th day of January, 1896, we, the undersigned members of the partnership of Lawless & Kyle, do covenant and agree as follows:
“That for the sum of Ten Thousand Dollars, in cash, to be paid within five days, William Kyle shall purchase the interest of T. C. Lawless in and to the following property owned by the said firm:
“The saw mill situated in the Town of Franklin, with all its appurtenances, rights and improvements; the real estate owned by the firm, whether title be in Lawless & Kyle, or Ti C. Lawless; and all the lumber and movable property; the intent being that all of the.assets of the firm, with 'the exception mentioned below, shall be included in this purchase. The accounts and bills receivable shall remain the property of the partnership, and o'ut of them the partnership debts shall be paid. After the payment of all debts appearing on the books and statement in the hands of Kjde out of said accounts and bills receivable, the surplus remaining shall be divided in equal portions between the members of the firm.
“It is further agreed, that, until the payment of the debts of the firm, T. C. Lawléss shall maintain in bank a deposit of Five Thousand Dollars, this sum to be a guarantee of the payment of half of any debts that may remain unpaid after the accounts and bills receivable are exhausted. This ágreement shall .be the authority of the Cashier of the First National Bank of Franklin, where said sum shall be deposited, to hold said sum on deposit until the payment of the said debt.
“Done and signed in the presence of D. Caffery, Jr., and Henry Mayer, at Franklin, Louisiana. (Our italics.)
(Original signed)
“Wm. Kyle,
“T. C. Lawless.
“D. Caffery, Jr.
“State of Louisiana, Parish of St. Mary.
“This agreement entered into by and between Thomas C. Lawless and William Kyle, as follows:
“In carrying out the contract entered into between the parties hereto, of date 27th day of January, 1896, and January the 29th, 1896, Wilson McKerrall shall collect all bills and notes due the firm, shall pay oil all debts as appears by Ithe books of Lawless & Kyle and by the statement in possession of William Kyle, and the surplus after deducting said debts shall,.at once, be turned over, one-half to said Kyle and one-half to said Lawless.- Said McKerrall shall settle all differences between said parties, and shall receive for his services ten per cent, of all amounts coming into his hands, and is not required to furnish bond for the faithful discharge of his office; and shall employ such assistance as may be to him necessary, at the cost and expense of the parties hereto, and shall incur such costs and expenses as may he reasonably necessary in the liquidation of said partnership.
“Done and signed at Franklin, Louisiana, this 29th day of January, 1896.
“(Originally signed) “T. C-. Lawless,
“Wm. Kyle.
“Accepted, (Signed) Wilson McKerrall
“Witnesses: Henry Mayer,
“D. Caffery, Jr."

In pursuance of that agreement, Kyle became the purchaser for the sum of ten thousand dollars, of the interest of Lawless in certain described property, consisting of the saw mill, appurtenances, fixtures, and real and personal property — in other words all of the assets of the firm, with the exception of accounts and bills receivable, which were to be retained by the liquidator for collection, with the view of paying off all partnership debts from the amounts so collected — the surplus remaining to be divided equally between the two partners.

It was stipulated in the contract that, until the payment of the debts of the partnership, Lawless should maintain in bank a deposit of five thousand dollars to stand as a guarantee for the payment of one-half of the debts that should remain after all accounts had been collected.

It was further provided that the liquidator should employ such assistance as may be necessary at the cost of the partners, and be dispensed from giving bond.

In compliance with the terms and conditions of the contract, Lawless made a deposit of five thousand dollars in the First National Bank of Franklin, Louisiana, on the 27th of January, 1896, the day upon which the contract aforesaid was subscribed.

On the 12th of September, 1896, William Kyle instituted, a suit against the liquidator, coupled with an injunction, restraining and enjoining him from releasing the aforesaid deposit from the First National Bank, or from paying over to Lawless the sum of five thousand dollars, until the full and final liquidation of the firm of Lawless and Kyle shall be made, and an adjustment of accounts between the members thereof effected.

To his petition, the plaintiff annexed the foregoing agreement, and he thereupon alleged that the liquidator has only partially settled the affairs of the partnership, collected some accounts, and paid some debts, and has rendered to both partners a provisional account showing the progress of his gestión; but,he avers that some of the debts of the partnership are still unpaid, and that none of the accounts between the partners have been settled.

He avers that the understanding, as well as the terms of the agreement was, that the five thousand dollars deposit should remain “as security to protect your petitioner in the event that any indebtedness, either of its said firm to its creditors, or of said Lawless tu petitioner, was not satisfied out of the other assets of said firm, the said sum to be drawn from in such a contingency, and the same to remain until the final settlement of the affairs of said firm”, etc.

Plaintiff avers that he has accounts of said Lawless growing out of certain partnership transactions, of claims for corrections in his accounts, which, if allowed, as they should be, the same being just and legal, will more than exhaust any sum remaining on hand to the credit of said Lawless after the payment of all debts, and which can'be satisfied only out of the said sum of five thousand dollars. That, notwithstanding these claims, aggregating some three thousand dollars, which have not yet been passed upon by the liquidator, and the unsettled condition of the affairs of said concern, the said liquidator proposes, and has announced to petitioner his intention, to release said sum of five thousand dollars from deposit, and to turn same over to said Lawless, and thereby deprive petitioner of the security which is provided in said agreement, and to his great and irreparable injury.

To this petition the liquidator’s answer is a general denial.

In that suit, Lawless appeared, and filed an intervention, in which ■he alleges that the liquidator “has collected more-than sufficient money to pay all debts of the firm, as appears from the books of said Lawless & Kyle, and by the statement in possession of William Kyle. That the said liquidator has actually paid off all of the debts of the partnership, and has a surplus of funds on hand to be divided between the .said' Kyle and your petitioner.” (Our italics.)

The intervenor also annexes the aforesaid agreement, and makes it a part of his petition, and he invokes the terms thereof, and insists that same have been fully complied with; that plaintiff’s injunction should be dissolved, and the liquidator ordered to surrender to him the five thousand dollars on deposit.

This intervention is given a separate title, and is styled T. C. Lawless vs. Wilson McKerrall, Liquidator; and that fact has brought about some confusion in the record. In the suit thus improperly entitled, William Kyle filed an intervention — but same should be properly considered as in the nature of an amended or supplemental petition. He therein represents that upon an account which was rendered by the liquidator, there is shown a balance on hand over debts and expenditures of the sum of $673.48 for division between the partners.

He alleges that one of the duties of said liquidator is to adjust the accounts between the two members of the firm of Lawless & Kyle, which duty involves a careful examination, and in many places, corrections in the books of said firm.

That the said books contain many errors to his prejudice, and in particular, they are erroneous in the following particulars and amounts:

First. In charging him on December 31st, 1891, with.......$800 00

for a barge sunk in Bayou Vermillion.

Second. And of January 10, 1896, with................... 96 25

for fifty-five cords of wood to B. E. Queen.

Third. In charging him with .......................... 48 74

on account of Boudreaux & Dor'sett.

Fourth. In charging him on July 16th, 1896, with.......... 43 00

on account of Carl Lawson.

Fifth. In crediting him on October 17th, 1892, with only $2061.41 as his share on settlement of accounts for timber sold; whereas he should have been credited with $2561.40 — making a difference of......................500 00

Sixth. That another is contained in the addition o£ his credits for 1893, same being given as $4,010.64, when it should have been $4,710.64 — making a difference of...... 700 00

He avers that these items alone contain errors to his prejudice - amounting to the sum of...........................$2187 99

He avers that all the books of the concern were not delivered to said liquidator through the fault of Lawless, and that some of them are now in his hands. That he has pointed out to said liquidator the errors herein mentioned, and that he has declined to correct the same, or render a correct account.

He therefore prays that the liquidator be ordered to file a true, correct and complete account of the affairs of the partnership, so as to conform to the averments of his petition.

To this petition, Lawless filed an exception, but same was overruled, and the case went to trial. On the issues thus joined, considerable testimony was taken.

Our learned brother of the District Court examined the case with special care, and critically examined all the evidence, made a statement thereof in his reasons for judgment, and thereupon entered the following decree:

“It is, for these reasons, ordered, adjudged and decreed that Wilson McKerrall, liquidator of the co-partnership of Lawless & Kyle, file in court a full and complete account of the affairs of Lawless & Kyle, up to the present time; that the errors herein mentioned be corrected; and that William' Kyle be recognized on said account as a creditor of said firm in and for the amounts recognized in this judgment, to-wit: On October 17, 1892, he be recognized as a creditor of said estate for the sum of $2,561.14; that for the year 1893 that he be recognized as a creditor of said firm for ' $4,710.64, less the debits for said year $720.76.
“That the charge of $800.00 on December 31st, 1891, against Kyle for a barge sunk in Vermilion Bayou be stricken out and disallowed; that the charges against said Kyle on January 21st, 1893, of $14.50, and May 12th, 1893, of $20.00, paid to Charles Rayne, be disallowed. That the charge against said Kyle, January, 1896, for the account of Boudreaux & Dorsett, $48.74 be disallowed; and that the charge against him during the same year for the account of Carl Lawson, $43.00, be disallowed.”

It was further ordered by the decree that the proceedings in the suit entitled T. C. Lawless vs. Wilson McKerrall, Liquidator, be suspended, until said account has been filed, as herein ordered.

The controversy principally relates to the aforesaid errors which are charged to exist in the account which was filed by the liquidator.

These different proceedings were consolidated by consent in the District Court, and tried as one suit. It appears from the evidence, that the liquidator’s account shows a surplus of about six hundred dollars over and above debts, for division between the partners; but the liquidator as a witness states that the true surplus is twenty-one hundred dollars — -he having made collections since the filing of his account.

On the part of Lawless, the contention is, that the contracts of January 27th and 29th above referred to, are conclusive of the whole matter. That the liquidator has fulfilled his entire duty by collecting the bills and paying the debts stated on his account.

On the contrary, the contention on the part of Kyle is, that the exception contained in the contract shows an entirely different state of facts, and that the liquidator is required to pay off all the debts of the partnership, and that this has not been done. Counsel for Kyle contend that Lawless has retained the books of the-firm embracing entries from December 31st, 1892, to May, 1894, and has refused to surrender the same to the liquidator. It appears from the record that with the object in view of obtaining said books, Kyle took a rule on Lawless to produce them, and to his rule appended an affidavit setting forth the facts he expected to prove by the same. That an order was obtained from the court for the production of the said books; and on the trial of same, the rule was discharged.

In his answer to the rule, Lawless informed the court that he qould not produce these books because they had been destroyed. That they were destroyed with his consent, after Kyle had consented to dissolve the partnership.

Counsel for Kyle complains of the irregularity of this proceeding, and the great hardship imposed upon him thereby; and presses upon us the duty of making his rule absolute. We can not comply with that request.

Notwithstanding the proof discloses many suspicious circumstances in connection with the destruction of the books, and which lead to the supposition that Lawless’ intention was to suppress evidence against him, that does not justify us in making the rule absolute, after the trial judge had declined so to do.

We think the rights of all parties would be best subserved by relegating this question to the merits, as the case will have to be remanded for the purpose of enabling the liquidator to correct his accounts. We think the ends of justice would be attained by leaving the matter at large, so that on a trial of the merits in the District Court, both parties may offer testimony appropriate to the remedy sought. On the hypothesis that the books have been destroyed, it is certainly competent for both parties'to produce proof of their contents by any competent secondary evidence.

I.

. An examination of the evidence shows that, in respect to the amount of $800 for the value of a barge that was sunk in Vermilion Bayou in 1891, the testimony of each one of the two partners is in absolute contradiction of that of the other, thus making an issue of fact between them — Lawless swearing that Kyle took the barge which was property of the firm, “against his will and protest, for the purpose of carrying coal to Vermillion;” while Kyle states emphatically, that Lawless hired the barge to one Bagley, for thait purpose and that “Bagley employed him (Kyle) to tow the barge loaded with coal to that point.”

But Bagley testified that Kyle was not the lessee of the barges, but that he was, “and that it was so leased when it was sunk in Vermillion Bayou”; and his evidence turned the scale in favor of Kyle and relieved him from the obligation of accounting for the eight hundred dollar loss.

In thus deciding, we think the judge a quo was right.

II.

With regard to the transaction in reference to the failure of the liquidator to give Kyle credit personally for the amount of the Bonino check for $500, the proof makes it clear that Kyle had borrowed the money upon his individual credit for the use of the firm, and this amount was deducted from the account of Lawson for timber sold him by the firm; and this deduction was charged to the account of Kyle, but the five hundred dollars he had borrowed for the use of the firm was not credited to him. This correction we think the judge a quo properly made.

III.

The error of $700 against Kyle in the addition of his credits on the Recount, is not denied; and Kyle testified to the correctness of the three miscellaneous items which are claimed, while Lawless, as a witness, makes no statement in reference thereto; and therefore, they may be accepted as correctly allowed.

We notice the request for an increased allowance which the plaintiff makes in his answer to the appeal, but we think the ends of justice would be better subserved by reserving his right to urge same in the lower court, and we make the reservation accordingly.

Judgment affirmed. .


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 13,378.
    Planters' Oil Mill vs. Monroe Waterworks and Light Co. et als.
    Syllabus.
    1. If, as the consequence of acts of commission or omission, the solidary liability of two or more persons to another arises, such persons may be sued at one and the same time in the same action for a judgment in solido against them.
    2. The power residing in a municipality to provide for a supply of water is, in its nature, legislative and governmental, and if not exercised and, in consequence, loss results to property owners by fires occurring, the municipality is not liable in damages.
    3. The same is true where a municipality undertak-s to provide for a supply of water by contract with a private company* which fails to adequately meet its obligations. Nor is the municipality to be held liable for the nonfeasance or misfeasance of its officials in connection with such contract or its enforcement.

      4. But it is not so clear that the px-ivate company, making such contract and failing to meet its duties thereunder, may not be held answerable to the citizen for losses he sustains in consequence of such failure. The grounds for liability are herein held sufficient to justify reversal of judgment sustaining exception of no cause of action and remanding for trial on the merits.
    APPEAL from the Fifth Judicial District, Parish of Ouachita.— Potts, J.

      T$. Tyler Lamkin and Andrew Augustus "Ounly for Plaintiff, Appellant.

      Hudson, Potts & Bernstein for Monroe Waterworks and Light Co., Defendant, Appellee.

      Stubbs & Bussell for the Mayor and City Council of Monroe, Louisiana, Defendants, Appellees.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiff’s mill property, situated in' the City of Monroe, Louisiana, was destroyed by fire in February, 1899.

It was partly insured in various fire insurance companies, and these companies paid plaintiff, on account .of the loss, $41,114.32 in the aggregate.

Plaintiff claims its total loss to have been $46,483.97, or $5,369.65 greater than the amount collected from the insurance companies.

When the companies paid, they took from plaintiff a 'transfer and subrogation of his rights and claims, on account of the fire, against .the Monroe Waterworks and Light Company and the City of Monroe.

Plaintiff, for its own benefit to the extent of $5,369.65 (representing the value of its property destroyed by the fire in excess of amount collected from the companies), and for the use and benefit of the several insurance companies to the extent of the $41,114.32 paid' by them, brings this action against the defendant Waterworks Company and the City of Monroe, asking judgment in solido against them for the full amount of the loss, aggregating the aforesaid sum of $46,483.97.

The suit is predicated upon a contract made by the City of Monroe with the Waterworks Company by which the latter obligated itself to furnish a sufficient supply of water for the various purposes of the municipality and its citizens, including the extinguishment of fires, in consideration of the grant to the company by the city for thirty years of the franchise and right of constructing, maintaining and operating its system of waterworks and electric lights in the city, including the right of way over the streets and public grounds of the municipality, and in further consideration of the payment by the city to the company of a stipulated sum per annum for the use and rental of a certain number of fire hydrants and are lights, and of the right and privilege of collecting from the inhabitants of the city certain charges and rates for the use of water and electric lights.

To enable the city to meet its engagement under this proposed contract — -that is to say, to provide the funds for the hydrants, rental and electric lights specified in the agreement — it was stipulated that the city should levy and collect annually a special tax of 3 1-2 mills, to be known as the fire hydrant, and electric light tax.

Before this tax could be legally levied and collected the proposition had to be submitted to the property tax payers of the city at a special election ordered for the purpose. The election was ordered, the proposition submitted and adopted by the requisite vote.

The proposition as submitted was whether the property taxpayers would direct the Mayor and City Council to levy and collect annually for ten years a five-mill tax upon all the property in the city for the purposes of public improvement and to enable the municipality to contract for water supply, sewerage, drainage and electric lights — 3 1-2 mills of which to be set aside and used for securing water and electric lights for the city, and 1 1-2 mills for drainage and other public improvements.

The 3 1-2 mill tax for the water supply and electric light system having been voted by the taxpayers, the same was levied by the Town Council, has been collected each year since then, and is still being collected, and the proceeds thereof applied to the purposes intended.

The waterworks and the electric light plant were constructed, completed in the early part of 1893 and have been operated by the company since then.

The ground upon which plaintiff seeks to recover from the defendant Waterworks and Electric Light Company is that it is a citizen and taxpayer of Monroe; that it has each year paid its pro rata of-the special tax levied for the waterworks and electric light system and to the company the usual rates and charges for its own use of the water and light privileges; that the company obligated itself by its contract with the City of Monroe to supply the water necessary for the extinguishment of fires; that .this obligation enures to the benefit of the citizens of the municipality as well as to the municipality itself, and for the breach thereof the company is liable to the citizen in the event of loss to him as the result of the breach, as well as to the city; that there was a breach of the obligation, and utter failure to supply the water needed, and in consequence the fire department of Monroe was unable to extinguish the fire which started in plaintiff’s property; and that had there been the supply of water contracted for, its property would not have- been destroyed, nor the loss it suffered incurred.

A further ground upon which recovery against the Waterworks Company is asserted is, t,hat there had been a verbal contract entered into between plaintiff and the company by which the latter, in consideration of one hundred dollars per annum paid to it by plaintiff, agreed to supply and have ready at all times for use in pipes and hydrants erected on the premises by plaintifE as a precaution against fire, water in sufficient quantity and with a specified force of pressure sufficient to'serve the purpose of the extinguishment of fires such as the one that destroyed plaintiff’s property, and that there had been a breach, likewise, of the obligation of this/contract, entitling plaintifE to recover as damages the amount of the loss sustained, which loss, it is alleged, would not have occurred had the water contracted for been supplied.

The ground upon which recovery against the City of Monroe is demanded is that said city having stipulated for a bond from the Waterworks Company, to insure the faithful performance of the company’s obligation under the contract, and the bond having been given, and having stipulated further in its contract with the company that in case of the failure of the company to keep the system of waterworks in good and efficient working order, supplying water as per its contract, the city might itself assume charge and control of the works and operate the same, failed to require the company to fulfill its contract, failed to coerce it in respect to its duty by taking proceedings on the bond, and failed to assume charge of the works and operate the same under the stipulation to that effect for the benefit of the city and the inhabitants thereof, and that because of this delinquency on the part of the officials of the municipality, the latter is liable to plaintiff for the loss it has incurred and which, it is averred, would have been prevented had the Waterworks Company been forced by the city to meet the obligations of the contract, or had the city itself taken charge and operated the works.

The petition charges the reckless disregard and flagrant and wanton violation of its contract by the Waterworks Company, and that the city officials well knew of the same and" yet took no steps'to conserve the rights and interests of the city and of the taxpayers and people in respect thereof.

It is represented that the insurance companies, plaintiffs herein, had local agents in Monroe, and that the several contracts of insuranee with the Planters’ Oil Mill, and the premiums or tariff rates charged therefor were predicated upon the contract which the Waterworks Company had with the city and with the oil mill for a sufficient supply of water for fire purposes, and that the companies and their representatives believed and had the right to believe the Waterworks Company would meet/ and the City of Monroe would compel it to meet, its engagements under the contract.

It will be seen that both the company and the city are charged with wrongfully and negligently occasioning the loss and destruction of plaintiffs’ property. And the city officials aré charged with non-feasance or mis-feasance in connection with the waterworks contract, thus contributing to the loss and damage suffered by plaintiff.

Under these circumstances, the liability of both the company and the city in solido to the claimants is asserted.

Plaintiff does not annex to its petition the contract made by the Waterworks Company with the city, though it does annex the plans and specifications for the construction of the waterworks. The ordinance of the city relating to the contract, and the contract itself are, however, found in the record. IIow the same got there does not s . . appear, for the case went off on exception in the trial court, and as to this exception there was no evidence offered and no note of evidence appears in the record.

A dilatory exception of misjoinder of parties was filed and overruled. It is insisted on here and requires notice at our hands.

The suit on part of the plaintiffs is to recover the total alleged loss by fire. Part of this loss having been paid by the insurance companies, it was proper practice for them to join plaintiff in the suit against the alleged common debtors, or for plaintiff to sue, as was done, for the use and benefit of the companies to the extent of the loss paid by them. And it is not improper joinder of parties defendant when the City of Monroe is sued, along with the Waterworks Company, for the amount of the loss sustained by plaintiff. A state of facts is alleged from which, according to the theory of the petition, the obligation in solido of the two defendants results. If, as the consequence of acts of commission or omission, the solidary liability of two or more persons to another arises, such persons may be sued at one and the same time in the same action for a judgment in solido against them. ■

An exception of no cause of action was filed, argued and sustained by the trial court by dismissing altogether the suit against the City of Monroe, and by dismissing that branch of it against the Waterworks Company founded on the contract made by it with the City of Monroe. As to the other branch of the case against the Waterworks Company, growing out of the alleged verbal contract made by it with the plaintiff for the furnishing of water, the exception was overruled and the company held to answer.

Plaintiff appeals.

The ruling of the court a qua, holding that no cause of action against the City of Monroe is set forth, was correct.

The power residing in the city to provide for a supply of water is, in its nature, legislative and govermental. Its exercise is not merely a ministerial duty. It follows that if the power be not exercised, if no provision be made for a water supply to extinguish fires, the city is not’ responsible for the loss which the owners of property may sustain by fires occurring.

It follows, further, that where the city has undertaken to provide a water supply, as, in this case, by a contract with a private company, and there is a failure on part of the compnny to meet in full its obligations in this respect, and, because of this, loss by fire results to citizens, the city is not liable. And this is so even though an annual tax be levied for the purpose.

Yule vs. City of New Orleans, 25. La. Ann. 394; Springfield Fire and Marine Ins. Co. vs. Village of Keesville, 148 N. Y. 46; 78 Ga. 24; 53 Mo. 159; 2 Am. Rep. 368; 63 Ia. 447; 29 Ind. 107; 8 Am. Rep. 292; 28 West Va. 233; 3 Lea (Tenn.) 42; 123 Mass. 311; 163 Ia. 447; 16 S. C. 412.

Nor is the. city to be held liable for the non-feasance or mis-feasance of its officials in connection with the contract entered into by the city ■with the Waterworks Company — for their failure to coerce the company to a compliance with the duties and obligations it assumed under the contract.

The principle upon which this rests is succinctly stated in City vs. Kerr and Gaily, 50 La. Ann. 413.

But it is not so clear that the Waterworks Company having contracted with the city to supply water adequate to the fire necessities of the town, and failing to do so, is not liable to citizens for losses directly traceable to its failure.

Many authorities in other jurisdictions are cited by counsel for defendant to show non-liability, but it is not certain they are applicable here considering the provisions of our Code and statutory law.

’This contract as made by the City of Monroe was intended by both parties to enure to the benefit of the inhabitants of the town. The stipulations therein made as to a water supply for use in case of fires was in their favor.

Article 1890 of the Civil Code declares that: “A person “may also, in his own name, make some advantage for a third person the condition or consideration of a commutative contract, or onerous donation; and if such third person consents to avail himself of the advantage stipulated in his favor, the contract can not be revoked.”

See also C. C. 1902.

The property taxpayers of Monroe, by voting the special tax in aid of the waterworks contracted for by the city, and subsequently paying it, signified their assent to accept the provisions of the contract which were designed to enure to their benefit. It was a sufficient evidence of their consent to avail themselves of the advantages it stipulated.

If the advantages this contract stipulates were in favor of the citizens and taxpayers, then they are to be viewed as obligees thereof. Now, C. C. 1926 declares: “On the breach of any obligation to do, or not to do, the obligee is entitled to damages.”

And C. C. 1930 recites that: “The obligations of contracts, extending to whatsoever is incident to such contracts, the party who violates 'them is liable, as one of the incidents of his obligation, to the payment of the damages which the other party has sustained by his default.”

A contract may be violated passively by not doing what was. contracted to be done, or not doing it at the time, or in the manner stipu(lated or implied from the nature of the contract. C. C. 1931.

If the plaintiff herein is not an obligee of the contract to that extent that he may maintain a direct action on it,-but is rather to be viewed as a third person not a party to it, nevertheless, if it be true that certain stipulations in the contract have been made for its benefit as one of the citizens and taxpayers of the town, it (plaintiff company) may yet maintain an equitable action against the one who has contracted the obligation.

Article 35 of the Code of Practice is authority for this for it says: “An equitable action is that which does not immediately arise from the contract, hut from equity in favor of a third person, not a party to it, and for whose benefit certain stipulations have been made.”

See also Wright vs. Oakley, 16 La. Ann. 126; Freligh vs. Milner, Ib. 418; Duchamp vs. Nicholson, 2 N. S. 672; Marigny vs. Remy, 3 N. S. 607; Dick vs. Reynolds, 4 N. S. 527; Flower vs. Lane, 6 N. S. 152; Pemberton vs. Zacharie, 3 La. 316; Gravier vs. Gravier, 3 N. S. 211; Dicey on Parties to Actions, p. 391 (mar. p. 370).

If there be in this contract no express stipulation in favor of the citizen arid taxpayers, that a sufficient supply of water to' extinguish fires would be furnished, does not such stipulation result by necessary implication ? Gill vs. Nelson, 16 La. Ann. 275.

It would seem that the Waterworks Company, by reason of having accepted the obligations imposed by the city ordinances and by the contract it had entered into, had a public duty to perform which embraced in its benefits every property owner of Monroe. And it would further seem that the contract it entered into was no.t made more for the benefit of the municipality itself than for the benefit of the inhabitants of the town. Ostrander on Fire Insurance, Section 343, p, 726.

So, too,,it has been held that a defendant who owes a duty to a community owes it, as a general rule, to every member of the community, and that if any member suffers a special injury from a breach of that duty, an action will lie.

Sisk vs. Crump, 112 Ind. 504; 14 N. E. 381; 129 Ind. 472 ; 28 N. E. 1113. See also Rich vs. R. R. Co., 87 N. Y. 395.

Municipal governments, while legal entities, are no more than convenient regulations instituted by the people, that they may act in their aggregate character to secure their larger protection and happiness. Municipalities are the people acting in their corporate capacity. It was the people’s money'that was paid the Water Company; it was for the benefit of the people that the promise was made on part of the company' to supply water for extinguishing fires. Ostrander on Fire Insurance, Section 383.

If it were to the public, that the promise of the contract was made, then it was to “the public as composed of individual, persons.” The municipality was but the agent of the public as thus composed. Its acts in the matter of the contract under consideration was' chiefly fiduciary. The beneficiaries are the corporators. It will not do to say the Water Company owes them no duty.

Ib. Sections 345, 347, 348. See Paducah Lumber Co. vs. Paducah Water Supply Co., 89 Ky. 340; 12 S. W. 554 and 13 S. W. 249; Gorrell vs. Greensboro Water Co., 32 S. E. 720.

While not deciding or intending to decide outright that plaintiff is entitled to recover against the Water Company on account of the contract made by the latter with the City of Monroe, -we are yet of the opinion that, taking the allegations of the petition as true for the purpose of the trial of the exception, a sufficient legal cause of action against the company is disclosed to send the case to trial on its merits.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from, in so far as it dismisses the plaintiffs’ suit against the Monroe Waterworks and Light Company, based on the contract between said company and the City of Monroe, be avoided and reversed, and it is now ordered and decreed that the exception of no cause of action to that extent be overruled, and that said suit, as to that branch of the case, be reinstated on the docket of the trial court and trial thereof had upon its merits.

It is further ordered, etc., that in all other respects the judgment appealed from be affirmed — costs of appeal to be borne.by the Waterworks Company.*


author: Monroe, <7.

text:
    No. 13,472.
    State of Louisiana vs. Bass Cavanaugh.
    Syllabus.
    1. Where an amendment to a bill of Information, made upon the day fixed for trial o'f the ease, has the effect of . charging a graver crime, with a heavier penalty, than that charged in the bill as originally drawn, the amendment ought not to be allowed.
    2. Proof of a previous assault, by the accused upon the prosecuting witness, offered by the State, after the defendant had closed his cause, for the purpose of showing malice, ought not to be admitted, unless clearly in rebuttal.
    APPEAL from the Twelfth Judicial District, Parish of Vernon— Bead, J.

      Milton J. Cunningham, Attorney General,. (Charles M. Cunning-, ham, of Counsel), for Plaintiff, Appellee.

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

Monroe, <7.

Upon February 27, 1899, -the appellant waived arraignment, and pleaded not guilty to the charge, set out in a bill of information, that he “did, with a dangerous weapon, to-wit: a pistol, wil- “ fully and feloniously, assault one Cole Young, by wilfully and fe- “ loniously shooting at him, the said Cole Young, with intent, him, the “ said Cole Young, then and there, to kill, contrary to the form of the “ statute,” etc. The ease was fixed for trial upon the following day, when the District Attorney moved to amend the bill by striking out the words “with intent him, the said Cole Young, to kill.” Counsel for the accused, thereupon, objected to the proposed amendment, upon the ground, that it “would change the crime charged, from a misde- “ meanor to a felony; and that said amendment was a matter of sub- “ stance, and should not be allowed”. The objection having been overruled, the District Attorney requested that the accused should be arraigned under the information as amended, and the counsel for the accused objected, on the ground that the accused “could not legally be “ required to plead under an information thus illegally amended and “ changed.” ' This objection having, also, been overruled, the District Attorney asked that the case be fixed for trial, to which counsel for the accused objected, upon the same grounds, and 'the objection was overruled, and a bill of exceptions taken to all of said rulings. The hocused. was, thereupon, tried, convicted, and sentenced to the penitentiary for twelve months, and he has appealed to this court.

The most serious charge contained in the language origin-ally used in the information, is that of assault with intent to kill, since the words, “by wilfully and feloniously shooting at”, are merely descrip-, tive of the manner of the assault; whilst the words “with intent to' kill”, limit the charge with respect to the purpose of the assault, and the utmost penalty which could have been imposed would have been fine and imprisonment, but not at hard labor.

As amended by the omission of the words “with intent .to kill”, the charge falls under Act 59 of 1896, and is equivalent, so far as the penalty is concerned, to a charge of assault with intent to commit murder, rape, or robbery, 'the penalty for which is imprisonment at hard labor, for not more than twenty years.

The character of the amendments which may be allowed to indictments, and informations, within the meaning of Sections 1047 and 1066 R. S., was considered in the case of State vs. Morgan, 35th Ann., 1139, where it was said, in regard to Section 1047, that, it “did not contemplate radical and material changes as to persons or things pertaining to the substance of the indictment, and by which the defendant might be prejudiced.” And in State vs. Jessie, 30th Ann., 1172, the court, holding that an amendment, changing a.charge of shooting with “intent to commit murder” into a charge of shooting with intent to “kill and murder” was useless, bult harmless, said “it would be dif- “ ferent, if to a charge ‘with intent to kill’, the State Attorney were “ to attempt to add ‘and murder’. If allowed, such an amendment “ would amount to a new information, for an offense of a higher grade “ than that charged in the first.” The instant ease, we think, falls within this ruling, and the amendment ought not to have been allowed.

The other points presented by the record, relate to the introduction by the State, after the defense had closed, of evidence as to a prior difficulty between the accused and the prosecuting witness. We understand from the bills of exception, that no evidence upon the subject had been offered in chief, and that none had been offered on behalf of the defense, and that the result of the ruling by the court was, that the prosecuting witness was afforded an opportunity of giving to the jury, in some detail, his version of a difficulty, which is said to have occurred the night before the commission of the crime for which the accused was being tried, and that the accused had no opportunity to deny or rebut the statement so made.

It also appears that the judge, of his own motion, cut short the statement thus made, and instructed the jury to disregard it “except “ as showing a previous difficulty, and to disregard all evidence of a “ previous difficulty, excepting in so far as the same would enable them “to determine whether or not the shooting was done with malice “ aforethought, if satisfied by the evidence, that the shooting had been “ done by the accused.”

It is admitted that the statement made by the prosecuting witness was as follows, to-wit:

“ That on the night previous to the day on which the crime charged “is alleged to have been committed, the said Cole Young went to the “house of one, Josephine (a colored woman) by a previous engage“ment, made that afternoon; that whilst in the house, Bass Cava- “ naugh knocked at the door, and that when he was admitted by the “ witness, he violently assaulted him with a stick of wood, and also by “ cutting him with a knife, (inflicting a slight wound on the chin, and “ cutting witness’ coat in several places); that here Mr. Bray (a white “ man on whose place Josephine’s cabin is situated) interposed, and “ stopped the difficulty.”

We are of opinion that the State ought not to have been permitted to offer this evidence, after the defendant had closed, unless clearly in rebuttal. State vs. Gregory, 33rd Ann., 43.

No doubt, prior acts and declarations of the accused are admissible when they legitimately tend to show motive or intention to commit the crime with which he is charged. State vs. Edwards, 34th Ann., 1012. But the general rule is against the introduction of evidence of the commission of another offense than that for which the defendant is being tried, and where such evidence is admitted to show intent, motive, etc., it should bear directly upon the issue before the jury. State vs. Bates, 46th Ann., 849. Where it is not introduced in chief, and is not in rebuttal of anything offered on behalf of the defense, and the accused has no opportunity to meet or contradict it, it should be excluded.

It is therefore ordered, adjudged and decreed that the verdict and judgment appealed from be annulled, avoided, and reversed, and that the cause be remanded to be proceeded with according to law.


text:
    No. 13,459.
    State of Louisiana vs. Robert E. Powers.
    Syllabus.
    Where, on a criminal appeal, the transcript of the case contains no bill of exeeptions, no motion in arrest of judgment, no assignment of errors, and no defect in the proceedings leading up to the conviction and sentence of the appellant appears patent on the lace of the record, there is riothing for the court to act upon and affirmation of the judgment follows.

      APPEAL from the Criminal District Court, Parish of Orleans— Moise, J.

      Milton J. Cunningham, Attorney General, and Joseph E. Generally, Assistant District Attorney, (Charles M. Cunningham, of Counsel), for Plaintiff, Appellee.

      Walter II. Rogers for Defendant, Appellant.
   The opinion of the court was delivered by

Blanchard, J.

On a charge of embezzlement the defendant was tried, convicted and sentenced to hard labor for eight months in the State Penitentiary.

From the sentence and judgment he appeals.

The transcript of the case contains no bill of exceptions, no motion in arrest of judgment and no assignment of errors. Neither does any defect in the proceedings leading up to his conviction appear patent upon the face of the record.

There is, hence, nothing in contestation for the court to act upon.

State vs. Potter and Muller, 33 La. 795; State vs. Williams, 37 La. Ann. 311; State vs. Wire, 38 La. Ann. 684; State vs. Darrow, 39 La. Ann. 677.

Judgment affirmed.


author: Nicholls, C. J.

text:
    No. 13,497.
    State ex rel. H. Dubarry vs. The Judges of Divisions “C” and “E” of the Civil District Court for the Parish of Orleans.
    Q N APPLICATION for Writs of Mandamus and Prohibition.

      Albert Voorhies for Relatrix.
   The opinion of the court was delivered by

Nicholls, C. J.

I-see no ground for the action of the 'Supreme Court in this matter. The different Divisions of the Civil District Court are all parts of one single court, and I do not see how a mere Irarsfer after allotment from one Division to another, in which the e.u cutory process issued and the sale was made, could injure the relator. I think any order given, or action taken by Division “E” in the matter would, under the circumstances of this case, be legal and subject ito no complaint as to jurisdiction. These are my views, and I therefore refuse the application, subject to action of other members of the court. (Signed) Francis T. Nicholls,

Chief Justice.

We concur.

(Signed) L. B. W.

J. A. B.

N. C. B.

F. A. M.


text:
    No. 13,508.
    State of Louisiana ex rel. Louisiana State Board of Health vs. Auditor, State of Louisiana.
    Syllabus.
    Under a genera! appropriation act entitled “An Act making appropriations to defray tlie ordinary expenses of the Government * * * for the year commencing July 1st, 1899, and ending July 1st, 1900”, a special appropriation reading “five thousand.dollars armnalVy or so much thereof as may be necessary to afford relief by the State Board of Health, etc.,” carries an appropriation of five thousand dollars for each of the years 1899 and 1900.
    It is not necessary that there should have been made an appropriation of the amount for each year specifically. ,
    APPEAL from-the Civil District Court, Parish of Orleans — St. Paul, J.

      Francis C. Zacharie for Relator, Appellee.

      Milton J. Cunningham, Attorney General, (Charles M. Cunningham of Counsel), for Respondents, Appellants.
   The opinion of the court was delivered.- by

Nicholls, C. J.

The State Auditor is appellant herein from a judgment of the Civil District Court for the Párish of Orleans, rendered 30th of March, 1900, commanding him to issue his warrant to the relator, the State Board of Health, for the sum of five thousand dollars or so much thereof as might be necessary for the expenses of said Board during the current year.

Relator’s petition alleged that the General Assembly of the State of Louisiana at its session in 1898 passed an Act, No. 55 of that session, entitled an Act “making appropriation to defray the ordinary expenses of the government; to pay the interest on the public debt and to support schools and public charities in the State of Louisiana and to build and repair public levees, for the year commencing July 1st, 1898, and ending June 30th, 1899, and the year commencing July 1st, 1899, >and ending June.30th, 1900”, and in the first section of said Act it is provided that the following sums or so much thereof as may be necessary be and the same are hereby appropriated out of any moneys in the State Treasury, not otherwise appropriated, for the following purposes, for the year commencing July 1st, 1898, and ending June 30th, 1899, and the year commencing July 1st, 1899, and ending June 30th, 1900”, and in the same section it is provided on page 79, of the bound Acts for the year 1898, “Five thousand dollars annually ($5,000.00) or so much thereof as may be necessary to afford relief by the State Board of Health to any parish in the event of the appearance of contagious or infectious diseases, in supplying medical assistance, preventive measures, disinfectants, nurses, medicine, clothing, bedding, appliances, disinfecting apparatus, tents, etc., to deal with first eases in time of emergency, to be drawn by the State Board of Health, or its president in such sums as the emergency in its or his discretion may require, same to be paid out of the funds not otherwise appropriated — $5,000. That in pursuance of said appropriation relators having complied with Section 4 of said Act providing for itemized accounts of previous expenditures, applied to -the Auditor for warrants in excess of $5,000.00, to meet expenses already incurred under the appropriation, and that the Auditor, Hon. W. W. Heard, had refused to issue warrants for a sum greater than $5,000.00, for the two years, claiming that the appropriation, $5,000.00, for the two years had already been exhausted, asserting and claiming that, the total amount appropriated for both years was only $5,000.00, and not $5,000.00 for each of the years named and provided in the Act.

The Auditor resisted the application on the ground that under Art. 45 of the Constitution no money could be drawn from the State Treasury except in pursuance of a specific appropriation made by law.

That Act 55 of T898, p. 79, appropriated only five thousand dollars for the use of the State Board of Health in the country parishes,'the whole of which had been drawn and the appropriation' was exhausted.

That relator’s contention was based on the use of 'the word “annually” in the first line of the clause, but the amount was specific as five thousand 'dollars, not ten thousand; not five thousand for each of the two years, but five thousand in all.

' That the Act made appropriations for the two years .beginning July 1st, 1898, and ending June 30th, 1900, and in every case where an appropriation was made for each of the two years, even annual salaries of constitutional officers, a specific aiDpropriation was made for each year, and wherever a single appropriation was intended one amount was stated, and each of them could be duplicated as well as the one in question.

' That whatever may have been intended by the writer of the clause, it only appropriated five thousand dollars, and if any more was intended it was certainly not specific, as required by the Constitution. Art. 45.

Respondent admits that if relator’s construction of the law is correct, it is entitled to draw not exceeding five thousand dollars more under the clause in question. ' There is no dispute as to the facts.

Relator’s petition gives correctly the title of Act No. 55 of 1898, known as the General Appropriation Act of that year, and the first paragraph of the first section of the same, also the wording of the appropriation for the State Board of Health.

The Auditor is correct in stating that the customary form followed in making appropriations is to specifically mention an appropriation for each of the two years for which it is made, as for instance:

“For salary of the Adjutant General for the year ending June 30th, 1899, Two Thousand Dollars”.
“For the year ending June 30th, 1900, Two Thousand Dollars” — but there is nothing sacramental in this form.

In the fourth section of the Act creating the Board of Health (Act No. 192 of 1898) the General Assembly, after declaring that “it should at all times keep in readiness one or more medical inspectors and nurses, medicines, clothing, bedding, appliances, tents, etc., and other necessary paraphernalia, so as to repair to any locality in the State that applies to it for assistance upon the outbreak of an infectious or contagious disease, with the view of stamping out the same” declared that “an annual appropriation of five thousand dollars shall be made to start this first help. The local authorities shall keep up the work at their own expense after it has been-started.”

The appropriation made in the General Appropriation Act of 1898, to the Board of Health, is not of a fixed sum of money to be drawn by the Board, absolutely, but of a sum .of money to be drawn upon contingently, to the extent funds might be needed to enable it to comply with the duty imposed upon it.

Neither the amount which would be needed nor the time for which it would be needed, could be determined in advance, as a new system was being inaugurated.

The Legislature meeting only once in two years, it was necessary to contingently provide for the exigencies which might arise between its adjournment in 1898 and the session of 1900.

It is our opinion that with that object in view it provided for an outer limit of five thousand dollars to be possibly expended during each year of the two intervening years.

We do not understand that 'there is any contestation between the Auditor and the Board of Health as to the existence of the state of facts upon which the appropriation is authorized to be drawn, if in fact an appropriation has been made as claimed by relator.

We think relator’s claim is well founded and the judgment of the District Court is correct. It is therefore affirmed!


author: Breaux, J.

text:
    No. 13,419.
    Rev. B. Gigand et al. vs. City of New Orleans et al.
    Syllabus.
    1. The authority of the attorney of record to represent one whom he avers is his client will not be decreed to be at an end on the averment of another attorney not of record, unsupported by an oath or its equivalent. Succession of ■ Patrick, 20th Ann., 204; 8th N. S., 232.
    2. The transcript of appeal was died after the time fixed for its return. The appeal will be dismissed when the transcript has not been timely fi/ed.

      3. An extension of the time within which to file the transcript of appeal does ■ not include three days of grace. Archer vs. Gonsoulin, 46 A., 141; Dane vs. Caldweil and Kahn, 28 A., 790 ; Bienvenu vs. Insurance Co., 28 A., 901; Von Hoyen vs. Von Hoven, 43rd Ann., 1170.
    4. The facts fatal to the appeal being manifest, the appeal will be dismissed.
    APPEAL from the Civil District Court, Parish of Orleans — King. J.

      M. E. Doriocourt and John P. Montamat for Mover.

      E. A. O’Sullivan for Plaintiff, Appellant.
    On rehearing by Nicholls, C. J. ■
    On Motion to Dismiss.
   The opinion of the court was delivered by

Breaux, J.

The appeal is before us on a motion for its dismissal. Under the law, the appeal was returnable on the third Monday of January, 1900. On the 16th day of January, 1900, counsel for the appellant obtained an extension of the time to February 5th, 1900, within which to file the transcript of appeal. The transcript of appeal was filed on the eighth of February of that year. The fifth, sixth, seventh and eighth of February were judicial days and are, therefore, to be counted in considering delays in matter of appeal. On the 21st of February, counsel, other than the counsel of record, filed a motion alleging that they' represented the plaintiffs, and suggesting that the appeal had been taken against the consent of the appellant, that it was filed after the legal delays, and moved for its dismissal.

Counsel for the appellant, Mr. E. A. O’Sullivan, filed an answer to this motion in which he, in substance, alleged that he is the attorney of record, and represents the appellant.

The authority of the attorney of record will be presumed, unless denied under oath. This authority has always been sustained, and the right of the attorney has never been- denied on mere allegations. 'Succession of Patrick, 20th Ann., 204; Deckman vs. City, 26th Ann., 302; Dangerfield’s Executrix vs. Thurston’s Heirs, 8th N. S., 232. In this view, the counsel of record is counsel for the appellant and has control of the appeal, and is in charge of its prosecution before this court. While thus holding, we cannot overlook the fact to which our attention is called thalt the transcript of appeal was not filed in time. This we think is fatal to the appeal. The appellant in such a case will be held to have abandoned the appeal. This court said, in Coudroy vs. Pecot, 51st Ann., 495: “Appellant maintains that assuming the grounds urged for dismissal to have been well founded, they could only have been urged within three days from the filing of the transcript. If the appeal was abandoned under the order of appeal as taken, as we hold it was, the effect was self-acting, needing no order of court to make it operative. An order of court on that subject would be merely declaratory of an existing fact”. See also case of Hake vs. Lee and Beal, recently decided.

The motion to dismiss the appeal on grounds before stated has been repeatedly entertained after the time within which a motion to dismiss an appeal should be filed for the reason that it is considered as presenting an objection to the appéal which the court will entertain on its own motion, even without suggestion. We have not overlooked the fact that this appeal was filed on the third day after the time had elapsed. If the case were before us on appeal returnable within the time fixed by law, the appellant would be entitled to three days of grace, but the rule is different when delay is granted by the appellate court within which to file the transcript of appeal. The extension of time granted does not include days of grace. “The authorities are numerous that when an extension of time has been granted, the appellant is not entitled to three days of grace within which to file his transcript of appeal”. Archer vs. Gonsoulin, 46th A., 144; Cane vs. Caldwell and Kahn, 28th Ann., 901; Von Hoven vs. Von Hoven, 43 A., 1170, and other cases.

The authority of the attorney cannot cure such defect as the suggestion makes evident. In the present situation of the appeal there is no alternative. The appeal must be dismissed.

It is therefore adjudged, ordered and decreed that the appeal in this case be and the same is hereby dismissed.

On Application for Rehearing.

Appellant complains of the action of the court, in having of its own motion, dismissed his appeal for his failure to have filed the transcript within the legal delays. He says:

“The Code of Practice, Article 588, gives two means by which an appellee (not the court), may cause appeals to be dismissed for failure to comply with its provisions, viz:
“'Either to obtain a. certificate from the clerk of the appellate court, certifying that the record has not been brought up which gives him the right of execution (C. P. 589); or,
“The appellee may bring up the record for himself and pray for judgment,” or “the dismissal of the appeal”. (Article, C. P. 590.)
“These methods of appeal are personal to the appellee, over which he has absolute control, and he may waive the enforcement of the provisions expressly or tacitly by doing some act which shows he does not desire to avail himself of the provisions of the law; to enforce the law he must make the motion.”
“He waives his right — advantage—by asking the amendment of the judgment. (Jacob vs. Yale & Bowling, 39th Ann., 359). Succession of Dufossat vs. LaBranche, 27th Ann., 286.
“In the latter, case no motion was made to dismiss for failure to file within three days, as per Act 25 of 1874, but appellee urged the dismissal in argument, the. court held that an appeal could not be dismissed on a suggestion.
“Court held that motions to dismiss must be in writing before there is a joinder in error, or answer, otherwise the preliminary objections are considered as waived. (Claflin vs. Lisso & Scheen, 31st Ann., 171.)
“Appellee need not file a motion to dismiss within three days but he must file it. (McDonogh vs. DeGruys, 10 th Ann., 75; Moriere vs. Robinson, 20th Ann., 229.)”
“The right to dismiss is personal and can be waived. (Cousin vs. Brother, 21st Ann., 210.)”

It is undoubtedly true that this court has recognized the doctrine of waiver in respect to dismissals of appeals, in a proper class of cases. One of such cases is cited by appellant where the appellee has moved to dismiss after praying for an amendment of judgment.

In all such cases the parties were before the court. In the present instance the city of New Orleans is not before us and never has been, and has, therefore, done nothing upon which a waiver could be made to rest. Had it made an appearance and taken action of any kind inconsistent with a dismissal, appellant’s contention would have a force which it utterly fails to have under actual conditions.

In one of the cases cited by the appellant (Moriere vs. Robinson), we said: “The appellee is not bound after, three days to know that the-transcript has been filed unless the return day is extended”, and the same idea is repeated in Coudroy vs. Pecot, 51st Ann., 496, where we said: “If .the appeal was abandoned (as we hold it was) the effect was self-acting, needing no order of court to make it operative.

“An order of court would be merely declaratory of an existing fact. The first return day having passed without the filing of the transcript, appellee was not called upon to be 'in court upon any subsequent return day for the parish, to ascertain whether the transcript would be filed, and if so at what time. There would be no fixed period to which the three days’ rule could be made to apply.”.

If we were to take up and dispose of this case on appeal .on its merits, as appellant asks, and we should reverse the judgment rendered in the District Court in favor of the defendant without its having made any appearance, or been notified in any way that the appeal was before the court, we would find ourselves in presence of a still existing right on the part of the appellee to require from the clerk of this court the certificate he was entitled to ask of him, under Article, C. P. 589, for the law fixes no time within which he should call for such a certificate. The court should certainly not have placed itself in such a situation.

hearing is refused.


author: Nicholes, C. J.

text:
    No. 13,436.
    State ex rel. Board of Health for the City of New Orleans vs. Common Council for the City of New Orleans et al.
    Syllabus.
    1. The Board of Health of the city of New Orleans Is a part of the city government. The General Assembly has not conferred upon It an unrestricted power of determining for itself how much money should be appropriated for its purposes by the common council in any given year.
    There is no more ground for independent action on its part in this matter, than there would be for the Department of Police, or any other department of the city. The intention of the General Assembly was that the Board of Health and the council should act together for the attainment of any object in which they have a common interest.

      2. The fact that since the adoption of the city’s budget several of the items budgeted for therein have been adjudged illegal, and the amounts appropriated therefor have been liberated to be applied to other purposes, does not authorize a particular person to mandamus the council to appropriate the liberated amount for his benefit.
    This is a matter for the council to pass upon.
    3. Courts are not vested with power to frame a budget for the city, of New Orleans ; to assume the administration of its affairs, to constitute themselves, in effect, the mayor and common council, for the purpose of determining what are, or are not, reasonable allowances for the performance of particular duties.
    Those matters are confided by the law to the discretion and control of the corporate authorities. (Moore vs. The City of New Orleans, 32nd Annual, 726.)
    APPEAL from the Civil District Court, Parish of Orleans.— • King, J.

      Richo.rd Peete for Plaintiff, Appellant.

      Jamés J. McLoughlin, Assistant City Attorney, and Samuel L. Gilmore, City Attorney, for Defendants, Appellees.'
    Statement op the Case.
   The opinion of the court was delivered by

Nicholes, C. J.

In its petition to the Civil District Court the Board of Health alleged that it was a public corporation, created for the purpose of establishing, controlling and administering all maltters of local sanitation in the City of New Orleans, including the regulation of the sale, and offering for sale, of all articles in this city affecting the public health and safety, and, in addition thereto, is charged with the supervision or authority over the meat inspection service and sanitary regulations at the slaughtering pens, or abottoir, in the Parish of Sit. Bernard, with respect to all meat intended for human consumption within the City of New Orleans, and had, to the best of its ability, and as far as its revenues and means would permit, faithfully carried out the duties imposed upon it by the laws of this State, and particularly Act No. 192 of the acts of the Legislature of this State for the year 1898.

That in order to maintain and operate said Board, the said Act No. '.192 had empowered relator to elect a chairman who should be the health officer for the City of New Orleans, and fix and pay his salary annually; elecit a sanitary officer who should enforce and execute the requirements of relator in all matters of sanitation, and also act as secretary and fix and pay his salary annually, and, further, to employ the necessary force of sanitary police and inspectors to ascertain the .sanitary condition of all premises, places, or things, in New Orleans, and which might effect the public health and safety; the necessary scientists to examine, chemically and bacteriologieally, articles and things affecting the public health and safety, and the necessary clerks, and purchase and incur expenses for the necessary disinfectants, and means for abating all nuisances found and detected; and generally to incur the necessary expense for performing the important functions imposed upon relator.

That excepting the revenues arising from the collection of fees imposed for the issuance of permits, recordation of deaths, births and marriages, and forfeitures imposed for violation of sanitary laws and ordinances, the probable receipts from which, for the year 1900, were estimated at twenty-six thousand, five hundred and sevenity-four 49-100 dollars, 'an amount totally and utterly inadequate to meet the necessary expenses of relator in performing, ills imperative duties and functions — relator was without means. That in order to provide such means, and to maintain and operate the Board, the said Act No. 192, referred to above, had made it the imperative and absolute duty of the City of New Orleans to provide relator with ample means, and had declared that all necessaiy expenses, costs and charges, of local sanitation incident to the operation and maintenance of relator should be borne by the City of New Orleans, and in ease the fiscal authorities should refuse to budget for, appropriate or pay the same, relator should have right (to the writ of mandamus before a court of competent jurisdiction to compel the proper action of the Common Council of the City of New Orleans and the said City of New Orleans.

That in due season relator adopted a budget- of necessary expenses for the ensuing year, 1900, and furnished -a -statement of the fees, forfeitures and sums of money received during the present year, 1899, -as well as an estimate of the probable receipts of the ensuing year, 1900, verified by the oath of the chairman and secretary of relator, and forwarded the same to the Mayor and Common Council of the City of New Orleans in time to be included within the budget of receipts and expenses of the City of New Orleans for th<3 year 1900, ‘an exact copy of which budget relator attached and annexed to its petition and made part thereof; that ithe amount demanded by relator from the City of New Orleans and the Common Council was twenty-two thousand, two hundred and nine 85-100 ($22,209.85) dollars, and was, together with its other revenues, absolutely necessary to enable relator to operate.

That notwithstanding the demand made by relator, as shown by its said budget, the Common Council for the City of New Orleans, the Mayor and the said City of New Orleans had refused to budget for or -appropriate for the maintenance and operation of relator a greater sum than' thirteen thousand ($13,000.00) dollars, which, together with its other revenues, was an amount grossly and utterly inadequate and insufficient to cover the necessary expenses, costs and charges to be incurred by relator for the ensuing year of 1900, and of itself showed a disregard of the rights of relator and an abuse of ‘any discretionary power which ithe fiscal authorities of the City of New Orleans might have had in the premises although relator specifically denied that -any of the matters set out in its petition were within the discretion of said fiscal authorities, ‘and always asserted and charged that the amount ito be budgeted for was fixed by law within the discretion of relator as determined by the necessary expenses, costs and charges incurred and to be incurred by relator.

That relator was entitled to ¡the writ of mandamus, and was without adequate remedy at law to obtain the relief sought therein.

That said budget of the City of New Orleans was not yet published according ¡to law.

In view of the premises, petitioner prayed that a writ of alternative mandamus might issue, directed to the Common Council of the City of New Orleans, through its president, and to each member thereof, and to the Mayor of said city, commanding them to amend the budget proposed or adopted by them for the year 1900 by including therein for the year 1900,' as the appropriation of the Board of Health for the City of New Orleans, the full sum of twenty-two thousand, itwo hundred and nine and 85-100 dollars, and that after due proceedings bad, there might be judgment in favor of relator, the Board of Health for the City of New Orleans, and against the Common Council of the City of New Orleans and the Mayor of said city, making said writ peremptory.

An alternative writ of mandamus issued as prayed for.

The defendants, by way of exception to plaintiff’s petition, pleaded that same disclosed no cause of action against defendants. •

If same should be overruled, then expressly reserving the benefit of same, defendants answered that iit was not the ministerial duty of defendants to make the appropriation prayed for; that the Council had already made ample provision in the budget of 1900 for the expenses of relator, and the amount so to be budgeted was discretionary with said Council; that all the revenues for 1900 had been dedicated already to various purposes as set forth in the-budget of expenditures for 1900, and could not be diverted or changed without violating the law (and they annexed to their answer copies of Ordinances 15,789 and 15,790, C. S., and made same part of their return); that defendants had no fund at their disposal out of which the increased appropriation prayed for by relator could be made.

They prayed that the demand of relator be rejected, and the suit be dismissed at relaitor’s costs.

The District Court rendered judgment refusing the mandamus, and the plaintiff appealed.

Opinion.

The Board of Health for the City of New Orleans owes its origin to the fifth section of Act No. 192 of 1898, in which iit was enacted that the Council, or legislative body of each and every incorporated municipal corporation of the 'State, should establish and organize a town or city board of health in the manner following:

The said Council or legislative body shall, immediately after the promulgation of -the act, or soon thereafter as may be practicable, elect or appoint five persons in said municipality to be members of the municipal board of health, * * * said persons, when so elected or appointed, shall constitute the city or town board of health. * * * The Council or legislative body shall provide ample means for the maintenance and operation of said board. * * * The said city boards shall elect a chairman who shall be a duly registered and licensed physician, who shall be health officer of the town or municipality, who shall serve in said capacity, exercise the powers and perform the duties usual and incident to such officers in similar organizations. The chairman shall receive such an annual salary as the Board of Health of said municipality may fix and pay. The said Board of Health shall have power to appoint a sanitary officer, whose duties shall be to enforce the requirements of said Board in all matters of Sanitation, and also to act as secretary. His salary shall be fixed and paid by the Board.

The- sixth section of the act declared that no member of the Board, with the exception of the chairman and sanitary officers, should receive any pay or emoluments in any way, for the services rendered, as a member of the Board, and that no member should be in any way directly or indirectly interested in any contract for supplies to be furnished, or services to be rendered, to said Board.

The seventh section of the act declared that all necessary expenses, costs, and charges of local sanitation, should be borne by the parish, city, or town, in which the local Board should be established, and in case the fiscal authorities thereof should refuse to budget for, or appropriate or pay the same,-the local Boards should have the right to ithe writ of mandamus before a court of competent jurisdiction, to compel the proper action by said parish, city or town authority.

The ninth section declared that all laws, or parts of laws, in conflict with, inconsistent with, or superseded by, the provisions of the act, were thereby repealed, but -all laws, of parts of laws, parish or city ordinances, State Board of Health ordinances, State, parish or municipal rules and regulations then existing, and not in conflict with, or inconsistent with, or superseded ■by the provisions of the act, were continued in full force and effect, and the -act should not be construed or interpreted so as to deprive the State Board of Health, or the local boards of health, of any powers or authority they might have under existing laws, except in so far, as those powers or authority might be modified or changed by the provisions of the act, and then only to the extent of thé modification or change; that all those parts of Special Act No. 172, of 1874, and Special Act No. 110, of 1878, and Special Act No. 56, of 1896, and of all other special acts relating to boards of health in towns, cities or parishes, and Act No. 92, of 1882, which were in conflict with, inconsistent with, or superseded by the provisions of the new act, were thereby repealed, but all other parts of said acts, not in conflict with, inconsistent with, or superseded by the latter, were continued iii full force and effect.

By the same section the Board of Health for the City of New Orleans was granted the exclusive right to the collection of all fees and charges, then being made by the existing State Board of Health within the City of New Orleans, other -than those accruing from the coal oil inspection and the registration of physicians, midwives and dentists.

By the tenth section of the act it was enacted and ordered that .the existing State Board, and local Boards of Health, should turn over to the new Boards all the assets, property, records, or other things and matters then in their charge and keeping, and thereafter the new Boards should be considered as successors in office to the old Boards, and all rights, actions, claims, or things of value possessed by the old Boards, should become vested in the new Boards, with full right and power to hold, prosecute and defend the same, just as if ho change had been made in said Boards.

Prior -to the passage of this act of 1898, there existed in the State of Louisiana a health Board known as the “Stalte Board of Health,” which combined within itself not only duties of a general character, in which the State at large was interested, but also duties of a local character -affecting especially the Ciity of New Orleans, duties which, under the new law, have been made to devolve upon the City Board of Health for that city.

It was a composite Board in its membership, and in its duties. The present City Board is as to local matters, successor of -the former State Board, and now forms part of the city government.

The record shows that, for its use for the year 1899, the Common Council appropriated and paid over to the City Board 'the sum of twenty thousand dollars; that it received from various sources of revenue over twenty-six thousand dollars, and that the excess of expenditures, over receipts for thait year, was seven hundred and eight dollars.

At a meeting of the City Board (referred to in its proceedings as the annual meeting of the Board), which took place on September 4th, 1899, the Board elected or appointed one chairman, one sanitary officer, one bacteriologist, one chemist, one attorney, one chief meat inspector, one superintendent of sanitary police, one recorder of births and deaths, one special inspector, one porter, seventeen sanitary inspectors, and thirteen assistant meat inspectors.

It is stated in the minutes of the proceedings of that day that the salaries of the general clerk, and the assistant clerk, were raised to eighty-five dollars a. month, and that of the porter to forty dollars, from which it would appear that the salaries and pay of ;the officers and employees named, had been fixed by prior action of the Boai’d.

At a meeting of the City Board, held on the 4th of December, 1899, it made out an estimate of anticipated approximate revenues and necessary expenditures for the year 1900. The minutes recite that this estimate was “adopted by the Board as its budget of necessary expenditures and approximate revenues' for the year 1900.” It also made out a statement of the receipts and expenditures of the Board for ithe year 1899.

The chairman, secretary and treasurer, were directed to attest the correctness of this statement before a notary public, and to submit it together with a statement explanatory of the same to the budget committee of the City Council, the City Council and thé Mayor; and a resolution was adopted that should the City Council fail to provide adequately for the Board’s needs in the city budget for '1900, the Board, through its chairman, should mandamus the Council.

The following admission appears in the record:

It is admitted by - the respondents and defendants herein that relator, the Board of Health for ithe City of New Orleans, adopted at its regular meeting on December 4th, 1899, as its budget of its necessary expenses, costs, and charges, for the year 1900, the budget annexed to the petition herein and marked “A,” and forwarded the same ito the Mayor and City Council on December 5th, 1899; that the said Board at the same time also made to the defendants, the City Council and Mayor, a detailed statement, verified by the oath of the chairman and secretary thereof, of all-fees, forfeitures, and sums of money received by the said Board during the year 1899, a duly certified copy of which statement is annexed to relator’s petition herein, marked “B,” as well as a detailed statement, verified by the oa.th of the chairman and secretary of said Board, of the expenses, costs and •charges incurred and expenditures during ithe year 1899, a duly certified copy of which statement is annexed to relator’s petition and marked “C,” together with an explanatory statement, also verified by the oath of ithe chairman and secretary of the said Board, marked “D,” and annexed to relator’s petition herein, as well as an estimate of the probable receipts of the said Board for the year 1900; that said budget estimate and statements, marked “A,” “B,” “O,” and “D,” together with the resolutions of the said Board of Health adopting the same, all of which appear and are of record in the minutes and proceedings of said Board at its meeting on December 4ith, 1899, were read, line for line, by the said City Council for the. City of New Orleans at its meeting of December 5th, 1899, before the adoption of the said Ordinance No. 15,790, O. S., or any part thereof; that ithis cause was instituted on December 13th, 1899, and the writ issued herein, issued and served on the defendant therein on the same day, and that said Ordinance No. 15,790, C. S., was promulgated for the first time after December 15th, 1899; that the'exhibit marked “E,” and offered and filed in evidence herein, is a duly certified copy of the resolutions as the same appear by the minutes of the said Board of Health of its said meeting of December 4th, 1899, adopting said exhibits marked “A,” said exhibits marked “B,” “C,” and “D,” 'and referred to above; that all of said admissions apply to Ordinance No. 15,789, O. S.”

The ordinance here referred to is the budget of the City of New Orleans for the year 1900.

In this budget the City Board of Health appears budgeted for the sum of thirteen thousand dollars.

The City Board contends that the amount budgeted for should have been the sum of twenty-two thousand, two hundred and nine dollars and eighty-five cents, and .ithat the City Council should be required, by mandamus, to increase the amount budgeted for to that sum.

That the amount called for is the result of a very careful examination into what amount will have to be supplied by the city to enable it to meet its necessary expenditures and enable it to efficiently perform its duties and functions; that having reached its conclusions upon ‘that subject, and transmitted them to the Common Council, the latter had no alternative but to adopt them and provide for meeting the expenditures to the amount stated in its budget; ithat it had under the law, no discretion in the matter, no power or revision, alteration or correction, and it cites authorities which it contends sustains the correctness of that proposition.

Without attempting to analyze these different decisions, it suffices to say that 'the General Assembly has not fixed, itself, any specific amount as that up to which the City Board was authorized to malte expenditures, and the binding force of which the city was legally bound to recognize, and that in Louisiana the municipal corporations of the State, have not been left free to determine the amount for which taxes can be raised to ensure efficient public service in any particular direction, but are rigidly held within certain hounds by force „of express constitutional restrictions.

It may be that the effect • of these restrictions will be to hamper those charged with public duties in the full execution of their trusts, but where the Constitution has ordained the citizen has but to obey, and to discharge his duty as best he may, with the limited instrumentalities placed in his hands, and that is the precise situation in which the authorities of the City of New Orleans find themselves to day. As a matter of course the City Board having been entrusted with the special and important duty of guarding the public health, keenly appreciates a situation which might leave it crippled in its action, but it overlooks the fact that the preservation of the public health is only one of the many objects which call for legal legislative action, and it does -not full realize the difficulties of those who, with small means, have to deal, not with a single one of these subjects, but a number. The Council has ¡to deal with these matters under a more extended sphere of obligation than does the City Board of Health, and it is in better position than is the Board to know how ¡to apportion the monies which are in its hands..

We do not agree with counsel of the Board ¡that the Legislature of ¡the State intended to confer upon it an unrestricted power of determining for itself how much money it should spend in any given year for health purposes. Its intention is, obviously, that the Board and the Council should act together for the attainment of an object in which ¡they have a common interest.

We see no more ground for independent action by the Board of Health, than there would be for the department of public improvements, or any other department.

We think the correct view of this matter is that found in the fourth section of Act No. 80, of the Extra Session of 1877, though modified to some extent.

In that section it was declared that “the Board of Health should have power and authority on the concurrence of the city council, to provide for, protect, and preserve, by adequate means, the health and salubrity of the city- of New Orleans, and in the exercise of such power and authority, might, with the assent of the city council, incur such necessary and reasonable expense, as occasion plight warrant, which expense should be paid by the city of New Orleans; after approval of the same, by the Board, out of the budget appropriation as therein provided, and no expense beyond such budget might or should be incurred, chargeable upon the city of New Orleans; that iit shall be the duty of the Board to forward to the Mayor and city council, annually, and in time to be included in the budget of expenses of the city of New Orleans, an estimate of the probable sum required lio meet the expenses aforesaid, for the ensuing year and other expenses provided for in that Act, to be paid by the city of New Orleans, and said estimate should include the salaries of the sanitary inspectors appointed under existing laws for the different districts of said city, as well as the reasonable expenses of said sanitary inspectors for rent of office and stationery for their official duties, and th,e said Board should also, at the same time, make to the city council, a detailed statement, verified by the oath of the President and Secretary thereof, of all fees, fines, forfeitures and sums of money which had been received by the said Board during the past year, as well as the estimate of the probable receipts for the ensuing year, and it should be the duty of the Mayor and Council, after considering such report and estimate, to make such appropriation as might be by them deemed necessary, for the expense of said Board and place it on the annual budget of expenditures.”

Any course of action making it obligatory upon the Common Council, which is the body called on to supply funds and to make payment, to register and enforce demands upon it for money, derived from taxation for an amount over which it. has no check, would be subversive of Ithe theory of good government.

A construction of law which would lead up to the authorization of such a course of action by the General Assembly, would have to rest upon very express language, if it could be justified at all, where municipal- corporations are tied down by constitutional limitations in 'their power of levying taxes.

The Board of Health have not only fixed the,.number of employees in their service, but they have determined, without any consultation with the Council, the amounts which should be paid to them for their service, when, by the 19 th section of the city charter of 1S9C, it is provided that the Council should fix the compensation of every officer of the city or of the State whose services are by-law, to be paid by the city of New Orleans, except such as were fixed in that charter, and regulate ilhe number and compensation of all persons on the pay roll of the city of New Orleans.

Appellants say that their employees do not figure on the pay rolls of the city of New Orleans, but upon those of the Board of Health. That may be true as a matter of books, and so long as these employees are paid ouifc of funds received by the Board from sources other than the city, but it is not true when they are in fact to be paid actually by the city.

The city in its action has to be guided not only by the propriety of the expenditures which the Board proposes to, or will be called upon to make, but also by a full consideration of the demands which will be made upon the limited resources at its command, from ¿11 quarters. It has notfc refused to act in the premises; it has made an appropriation of thirteen thousand dollars for the Board. That may be an insufficient amount to insure full results, but we are bound to assume that it is all the city can spare for thalt particular purpose, at least, for the present.

We have no right to assume that it is any less solicitous for the health of the city than the Board itself is. As matters stand, and if the appropriation be too small, the Board will have to diminish its force and curtail its expenses.

The Board calls our attention to the fact that several large amounts which were included in the city’s budget for 1900, as amounts which it would have to pay, will not be called for by reason of judgments, decreeing the non-liability of the city, and by reason of other causes, and it claims the right to have those liberated amounts budgeted against, in its favor. A similar claim was advanced on behalf of the relator in the case of State ex rel. Foy vs. The Mayor, 49th Ann., 946.

It may be true that there are amounts now liberated, but it by no means follows that they should legally be applied to the increasing of the appropriation in favor of the relator.

This court could only have, at best, a partial view of the situation. There might be others equally entitled, if not more entitled to have those liberated funds enure to their benefit, than the relator would. (Eager, Ellerman & Co. vs. City of New Orleans, 36 Ann., 937).

That is a matter for the Council to examine into and pass upon. In Moore vs. City of New Orleans, 32 La. Ann., 726, this court said:

“We are not vested with power to frame a budget for the city of New Orleans, to assume the administration of its affairs, to constitute ourselves, in effect, the Mayor and Common Council of the cilty of New Orleans, for the-purpose of determining what are or are not reasonable allowances for the performance thereof. These matters are confided by the law to the discretion and control of the corporate authorities.”
“They have actually framed their estiriSate and budget of revenues and expenditures, and have appropriated the whole of the ten mill tax to administrative purposes. If they are extravagant or excessive, the remedy lies not with the judiciary but with the Legislature.”

We see no aulthority in this court to order the Common Council to enlarge the amount placed by it on its budget for the prospective expenditures of the city Board of Health. That amount is to be determined by the City Council, after consideration of facts and circumstances which could not possibly be examined into legally by this court, in a mandamus proceeding, if at all.

Entertaining the view we do, as to the absolute right of the relator to be placed on the budget for any fixed amount, we are relieved from the consideration of several matters which take up a large part of the briefs both of the city and of the Board of Health.

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