author: Monroe, J. Breaux, J.

text:
    No. 13,256.
    State of Louisiana et al., vs. New Orleans, City & Lake Railroad Company.
    Syllabus.
    1. Full and specific notice having been given, by means of a written instrument, filed in the office of the Secretary of State, that the defendant’s author claimed to be the transferree of a grant, made by legislative enactment, authorizing the construction of a railway on certain public lauds, and the free use of said lands for that purpose ; and the road having bec-n, thereafter, constructed agreeably to such notice; and having been operated for twenty-three years, and no demand having been made, during that time, for eompen salion for the use of said land, or notice given of any intention to make such demand; and no time having been afforded to the defendant to remove from the property, the State is estopped in an action to recover a stipulated amount, per annum, for the period during which defendant has exercised, or may exercise, the right of way in question.
    2. Act 84 of 1882, authorizing the building and maintenance of railroads through public lands, is a declaration of the public policy of the State on that subject, and is so far applicable to a road in existence at the time of its adoption as to prevent a recovery, by the State, for the use of the right of way, in the absence of additional legislation authorizing the demand.
    3. The legislature has sanctioned the building of a railroad on the bank of the New Canal, but should it appear, in a proceeding properly brought, that the road so built is maintained and operated in such a manner as to interfere with the effective administration and use of the canal the matter would be a proper subject for judicial inquiry.
    On Rehearing.
    1. Although the rights under a legislative charter may not be complete because of non-acceptance in the manner required, and although the defendant road may not have, in manner required,- availed itself of the statute authorizing consolidation of corporations, yet it is not possible, under the law, for the State to obtain judgment which would have the effect of treating defendant as a mere trespasser owing rent to the New Basin Canal Company.
    2. Legislation has given special sanction to the improvements made and clearly shows that it was never the intention to require the defendant to pay rental for the many years for which rental is claimed by the New Basin Canal Company.
    3. Without reference to the pleas of estoppel and prescription, as a matter of express legislative intent regarding the defendant, the New Basin Canal Company is not the creditor of the defendant for the rental.
    4. Whatever right the State has to sue for exclusive possession and occupancy of the strip of ground in controversy is, as it was in the former opinion, reserved.
    APPEAL from the Civil District Court, Parish of Orleans— Bilis, J.

      Milton J. Gunningham, Attorney General; Walter Guión, Attorney General, (Branch K. Miller, of counsel) for Plaintiff, Appellant.

      Denegre, Blair £ Denegre for Defendant, Appellee.
    On the application for rehearing by Breaux, J.
   The opinion of the court was delivered by

Monroe, J.

This is a suit brought by the Attorney General, and associate counsel, in the name of the State of Louisiana and of the “Board of Control of the New Basin, Oanal & Shell Road,” to recover from the defendant seventy-seven thousand six hundred and seventy-five dollars, as the aggregate amount alleged to be due for the use and occupancy, from January, 1876, to January, 1899, of certain property, on the north side of the New Oanal extending from the Metairie Road to the Lake, for the purposes of a railroad bed and track, being (as supposed) at the rate of three thousand three hundred and seventy-five dollars a year, interest being also claimed on the amounts alleged to have become due annually, from the expiration of each year; and the allegations of the petition being that the property in question belongs to the State and is in the charge of the “Board of Control,” etc., which is authorized to represent the State with respect thereto, and that the defendant, and other companies, to whose rights and obligations it has succeeded, have been occupying the same, during the time mentioned, without right, and without making compensation for such occupancy. The prayer of the petition is for judgment in favor of the “Board of Control of the New Basin, Oanal & Shell Road,” for the amount claimed, as past due, and for three thousand three hundred and seventy-five dollars, with interest for each year, beginning with January 1, 1899, during which the defendant may continue to occupy said property.

To this the defendant makes answer, in substance, as follows: That upon January 9, 1883, it acquired for a valuable consideration, the property and franchise of the New Orleans City Railroad Company, including the right of way over the property in question, which it has ever since peaceably and uninterruptedly enjoyed and exercised; that, prior to that time, in April, 1876, its said transferror had constructed a road bed and double track upon the property in controversy, and had used the same peacefully and uninterruptedly up to the time of said • transfer in 18.83, under, and by virtue of the franchise, granted by Act No. 133 of 1869, to the “New Orleans, Metairie, and Lake Railroad Company,” of which it had become the owner; and that, by reason of the conduct and acquiescence of the plaintiff and the lapse of time, the plaintiff is now estopped to object to defendant’s exercise of the rights thus acquired, and upon the faith of which it has made heavy expenditures and issued bonds to a large amount. Defendant denies that plaintiff has ever had any authority to lease any part of the canal or its appurtenances, or that it is entitled to recover cent or compensation, as claimed in the petition, and further denies that it has any title to the ground upon which the railroad of the defendant is built, or that said ground is necessary for the purposes of the canal, and if alleges that said road is an advantage to the canal, and that its continuance and operation are authorized, not only by the State, but also by the city of New Orleans.

The following facts are established:

By Act No. 18, of 1831, the General Assembly incorporated the “New Orleans Canal and Banking Company,” and'authorized it to construct a canal, with a shell road on each side, from the city of New Orleans to Lake Pontehartrain, and to charge tolls for the use of the same, and, for that purpose, to expropriate, or otherwise acquire, the necessary land, subject to the condition that, at the expiration of thirty-five years, the property should revert to the State. The'canal was constructed, accordingly, with a shell road on one side, while what is called the North Side, or at least that portion of it which lies between the Metairie Road and the Lake, was left in its natural state, — that of a swamp. Agreeably to the terms of the statute, at the expiration of the thirty-five years, to-wit, in 1866, the canal and its appurtenances reverted to the State, and it was leased, under the authority of Act No. 12, of 1866, for fifteen years, to Richard Taylor. Thereafter, by the Constitutions of 1879 and 1898, the State was, and is, prohibited from further leasing or alienating said property.

By Act No. 133 of 1869, the General Assembly incorporated the “New Orleans, Metairie and Lake Railroad Company,” for the purpose of building a railroad from New Orleans to Lake Pontehartrain, “with the privilege of constructing the same, or any portion thereof, on the public land, north of,' or adjoining the New Oanal, or forming part of the levee of said canal,” and made it the duty of the lessee “to afford every facility for the construction of” said railroad, which, by the terms of the act, was to be so constructed as to “add to the efficiency of said levee.”

The charter thus granted was accepted, by notarial act, by John G. Campbell, one of the original grantees, acting for himself and as transferree of two of the others, and by E. S. Wurzburger, Alfred Shaw, and George II. Braughn, as transferrees of the other of said original grantees; and, a few days afterward said parties entered into a contract with Taylor, the lessee, concerning his rights in the premises, after which, the evidence tends to show that, in June, 1870, several hundred shares of stock were subscribed in said company, and that, in July of the same year,/ a board of directors was elected.

It appears, also, that there was, then, in existence, a corporation, known as the “New Orleans City Railroad Company,” which, for some fourteen years, or more, had been operating certain street railroad lines, and among them, a line from the heart of the city to the junction of Canal street and Metairie Road, the point designated as the city terminus of the New Orleans, Metairie and Lake Railroad. And, the next thing bearing upon the question at issue, disclosed by the evidence, is a contract, purporting to have been entered into, December 21. 1875, between the President and Directors of the two companies, respectively, which is termed “Articles of Consolidation,” and which purports to consolidate the said corporations, under the authority of Act 157 of 1874. By the terms of this contract, the New Orleans City Railroad Company, having an authorized capital of two million dollars, of which one million three hundred thousand dollars had been subscribed, agreed to issue one thousand shares of its stock, at one hundred dollars each, of which eighty shares were to be considered full paid, and the remaining nine hundred and twenty shares were to be, thereafter, subscribed as the Board of Directors plight determine; and the eighty shares mentioned were to be given to the stockholders in the New Orleans, Metairie and Lake Railroad Company, as “full payment and satisfaction for all the rights, property and franchises of said company.” It also appears, from said contract, that E. S. Wurzburger, who signed the same, as representing the New Orleans, Metairie and Lake Railroad Company, owned, or controlled, all of the full paid stock, being 646 shares, 'and 331, out of the 499, shaves of the stock of said New Orleans, Metairie and Lake Railroad Company, which had been subscribed, and for the subscriptions for which notes had been given, representing five per cent, thereof, payable on condition that two thousand shares should be subscribed. The contract further provided that the said company should bear the name of the New Orleans City Railroad Company; that all the officers of said New Orleans City Railroad Company should remain as they were, and that its charter and by-laws should remain undisturbed, in so far as not altered by said contract.

This contract was ratified by the stockholders of the New Orleans City Railroad Company, and, together with a proces verbal of said ratification, was filed in the office of the Secretary of State, January 24, 1876.

In April, 1876, the New Orleans City Railroad Company began the construction of the road, as contemplated by the grant to the New Orleans, Metairie and Lake Railroad Company, pushed the same to completion, and, thereafter, maintained and operated it, and, in December, 1879, mortgaged it, together with all the property and franchises owned by said company, in order to secure seven hundred thousand dollars worth of bonds, issued for its purpose. Thereafter, to-wit, June 9, 1888, the New Orleans City Railroad Company assigned and transferred its rights and franchises, including those in question, to a corporation called the “New Orleans City and Lake Railroad Company,” which, in 1893, mortgaged the same, with other property, for three million dollars, is now in possession thereof, and is the present defendant.

In the meanwhile, some years after the expiration of Taylor’s lease, the General Assembly,' in 1888, passed an act, No. 144 of 1888, placing the Canal, Shell Road, etc., under the control of a board of officers, to be appointed by the Governor; and the board so appointed has been administering the property since that time.

In the meanwhile, also, in 1882, the General Assembly passed an act, No. 84, of 1882, which reads: “'That any person, company or corporation, desiring to build or extend a railroad in this State, shall have the right of way, not exceeding two hundred feet in width, over any land belonging to the State through which such road or any branch, tap, or extension thereof may pass, for- the purpose of constructing, maintaining and running any railroad, or any tap, branch, or extension thereof, which may hereafter be built in this State.”

The evidence shows that the defendant’s road bed is within 120 feet-of the border of the canal. Upon the other hand, there is no proof of the value of the right of way, other than the fact, which is established, that the defendant pays three hundred dollars per annum for its occupancy of a strip of land, belonging to the Firemen’s Charitable Association, adjacent to Canal street, and, as we understand it, on the outer limit of the 120 feet which is nearest to the canal, which strip represents one-eleventh of the whole distance from Canal street to the lake; the argument being, that the defendant should pay in the same proportion for the other ten-elevenths of the distance.

Opinion.

This suit was brought in February, 1899, and, considering the allegations and prayer of the petition, the only question which we are called upon to decide is, whether there should be judgment in favor of the Board of Control of the canal, condemning the defendant to pay for the use of the right of way in question, for the twenty-three years, preceding January 1, 3,899, at the rate of three thousand three hundred and seventy-five dollars a year, and at the same rate, subsequent to that date, whilst it continues to use the property, together with the interest, as claimed in the petition.

We have seen that, in 1869, the State granted the right of way in question to a certain artificial person, which it undertook to create, at that time, and to designate as its grantee; that, in 1875, the person so designated, whether acting within the scope of the authority conferred upon it or not, for a valuable consideration, and by means of an agreement, which the parties called “Articles of Consolidation,” conveyed, transferred and assigned the said right of way to another juridical personage, the legality of whose existence is not questioned; that, before any further action was taken, the State was formally notified of what had been done, and was apprized, not only of the fact that its grantee had transferred all the rights granted, including the free use of the land in question, but was informed of the manner of the transfer, and the consideration therefor, by the filing, in the office of the Secretary of State, in January, 1876, of a copy of the instrument by which the said transfer was effected; that, thereafter, in April, 1876, the transferree entered into possession of the property with the assent and cooperation of the lessee, holding under the authority of the State, and expended its money in carrying out the purpose which the State had in view in the adoption of the act of 1869, and which purpose, the State had been informed, would be carried out by the transferree, and not by the original grantee; that the transferree continued mupeaceable and uninterrupted enjoyment of the said right of way, after the property passed out of the hands of the State’s lessee, and under the immediate administration of the State itself, which administration was exercised at a later date, and has been exercised, since 1888, by the present plaintiff, the Board of Control, composed of officers appointed by the Governor; and that, in 1888, the transferree, who had thus been in possession ior seven years, claiming under a title from the State, of which the State had full notice, transferred and assigned its rights, such as they were, to another corporation, legally constituted, and acquiring in order to continue in operation, the railroad, which, by the act of 1869, it was the declared purpose of the State, should be constructed, maintained and operated; and that corporation, the defendant now before the court, has since then maintained and operated said road, upon property over which the State has, at the same time, exercised constant and immediate supervision, and control, through its Board of Control.

It does not appear that, during the twenty-three years, from 1876, when the instrument, called the “Articles of Consolidation,” was filed in. the office of the Secretary of State, to 1899, any demand was ever made for compensation of any kind for the use of the right of way in question, or that it was ever intimated that the occupant was considered as holding possession upon any other terms than those of free use, and agreeably to the conditions of the original grant from the State, and of the transfer of that grant, filed, in January, 1876, in the office of the Secretary of State.

Upon the contrary, so far as the State can be considered as having taken any affirmative action, which would seem to bear upon the subject, that action, as expressed in Act 84 of 1882, is in perfect harmony with her acquiescence with regard to the matter under consideration, for she there declared in terms, that “any person, company, or corporation” desiring “to build or extend a railroad in this State,” should have a right of way over any lands belonging to the State through which said road may pass. If, therefore, it should be held that the defendant’s possession is unauthorized, and, in a suit brought for that purpose, the view should be taken that its road should be removed; the question would arise, what is there to prevent its immediate reconstruction in the same place, and the enjoyment, by the defendant, of a free right of way, under the act of 1882? And if this be true, ought not the defendant, who has been in possession of such right of way since 1883, have been notified when such possession began, and as a condition precedent to a recovery in this suit, that it would be charged three thous- and three hundred and seventy-five dollars a year, not only from the date of its taking possession, but from January, 1876, before such possession was taken by any one? The aggregate amount here claimed, ns past due, is over seventy-seven thousand dollars, whilst the evidence shows that the road could be taken up and built in the swamp, just outside of the 120 feet limit, for less than forty-five thousand dollars, including the cost of purchasing the right of way, which is estimated at thirty-two hundred dollars. It is true that the engineer who gave the estimate was unable to do more, in stating the probable cost of the right of way, than to give it, as his opinion, that it could be bought for one hundred dollars per acre, but he gave that opinion upon the basis of his experience, and under oath, and as the line would run through an uninhabited, and uninhabitable swamp, there is nothing to suggest that the land and water, through which it would pass, is worth more than the amount stated. It is argued, however, that the act of 1882, has no application to city railroads. Without entering fully into the consideration of that question, it seems enough for the purpose of this case, to say that, for aught we know, the defendant may be authorized to build roads outside of the city as well as inside, and it certainly requires a stretch of imagination to characterize, as within the city, the vast area of prairie and swamp land upon which deer are still running wild, but which is, by law, included within the boundaries of New Orleans; or to hold a railroad which traverses such a territory, where a street has never been located or surveyed, to be only a street railroad. Beyond this, it will be denied that a railroad from the inhabited portion of the city of New Orleans to the lake is a desirable thing, and there can be no reason for supposing that the State would draw the line, in its liberality in the matter of the use of its lands, in' such a case, if it should happen that the same company owned and operated lines of road in the city proper, and from the city proper to the lake, and that, otherwise, the latter line could hardly be made profitable. It is also argued that the act of 1882 is not to be considered as embracing within its provisions a strip) of land along a public work, such as the canal. The answer to this seems to be that the General Assembly, in 1869, authorized the building of a railroad on the strip in question, apparently because it was considered available for that purpose. Whether it ought to be so used, depends, of course, upon the effect of such use upon the ■operations of the canal, and, when a case is presented in which it is made to appear that the defendant is obstructing the proper administration of the canal, as such, this court will, no doubt, consider very seriously whether a remedy may not be found within the law.

As the matter stands, the act of 1882 is a distinct declaration of the public policy of the State, to the effect that railroads shall have a free right of way over public lands, and it would be utterly inconsistent with that policy to require the defendant, which entered upon the property in question after that act was passed, to pay for such use merely because its road was constructed before that time, and especially since the State had acquiesced in the free use of the property, during the preceding seven years, by the same road. No doubt there is public land already devoted to such public purposes as to preclude the idea that the act of 1882 was intended to apply to it, but the land in question is not of that character, and not only has the General Assembly, virtually, so declared, but the evidence in this case shows that, if not an advantage, the railroad is, at least, no obstruction or detriment to the canal, along the bank of which it is built.

No sufficient reason has been suggested why the present defendant should, in any event, be made to pay for use and occupation, for a period antedating its possession, and, as that possession began after the passage of the act of 1882, we are of opinion that a recovery in this case, for the period subsequent to such possession, would be inconsistent with the public policy declared in that act. Even if this were not so, the defendant, under the circumstances, as disclosed, would be entitled to notice, in advance, of the intention to demand compensation for the use of the property, which it had been using, to the knowledge of the State, and believed, and was justified in believing, that it had the right to use, free of charge; and it would be entitled, in common fairness, to a reasonable time, in which to make other arrangements, if it chose not to submit to the charge sought to be imposed. With respect to the demand, as made, the plea of estoppel is good, and must be sustained.

“The doctrine of estoppel applies to the State, just as it does to individuals.”

State vs. Taylor, 28 Ann. 460.

State vs. Ober, 34 Ann. 359.

Breaux vs. Negrotto, 43 Ann. 435.

Davis vs. Gray, 16 Wallace, 203.

United States vs. Budd, 43 Fed. Rep. 630.

These conclusions render it unnecessary for us to determine whether the New Orleans, Metairie and Lake Railroad Company ever acquired the status of a corporation de jure or de facto; whether the franchise in question ever legally vested in it, or, assuming that it did so vest, whether it could legally have been transferred, in the manner and with the effect, as claimed by the defendant. And this opinion is not to he construed as determining any other question than that of the right to i ecover for use and occupancy as herein claimed, all other rights of the State being reserved.

Judgment affirmed.

On Application for Behearing.

Breaux, J.

Plaintiff and appellant’s earnest brief on application for rehearing', and the able argument of its counsel at. bar have led us carefully to reconsider the issues of the cause.

Plaintiff again in argument levels its attack against the charter by-legislative act of the Metairie Company, on the ground that it had never been accepted and that the Metairie Company had never come into,existence, and that since this company had never acquired a corporate existence, it was not within the terms of Act 158 of 1874, (p. 18, Acts of 1875), which authorized consolidation only of corporations “now existing under general or special laws.”

Plaintiff and appellant again insist on application for rehearing that, oven granting that the charter of the Metairie Company had been accepted, there had been no organization under it and that, in consequence, its attempted consolidation with the New Orleans, City and Lake Bailroad Company was of no effect, and void under the terms of a statute which applied alone to existing corporations.

■ Further, on this application for rehearing, the insistence" is that there was a non-compliance with the conditions prescribed by the act of 1874 for a valid consolidation in that there was no resolution of the Boaid of Directors of the Metairie Company authorizing the consolidation, nor any meeting of the stockholders approving or ratifying such a resolution, both of which are required by the act of 1874. Plaintiff and appellant also urge that the company had no Board of Directors, bur in the attempted consolidation was represented by a single stockholder acting for himself and as agent of all the other stockholders, from whom no powers of attorney appear to have been introduced, the asset ted agency being based entirely upon the statement of the one who assumed to act as agent. Those and other grounds of attack were directed against the existence of the Metairie Company.

Plaintiff and appellant further contend that the act of 1874, in questiou, conferred the power of consolidation on business and manufacturing corporations alone, and that the words of description of the act did not include a street railroad company, such as the New Orleans, City and take Bailroad Company, nor a combination of a freight and passenger road, such as the Metairie Company, and that hence the pretended consolidation was void for want of statutory authority, which is as essential for the consolidation of two corporations as it is for the creation of either of them originally.

Plaintiff and appellant argue that the first requisite of any contract is that there shall be persons legally capable of contracting, the second, consent to the contract legally given; that this being wanting, it follows that the act of 18T4 was not compiled with in form and substance.

This court, in its first opinion, held that the conclusion at which rhe opinion arrived, rendered it unnecessary to determine whether the New Orleans, Metairie and Lake Railroad Company ever acquired the si.aius of a corporation de jure or de facLo. We can only say in answer to plaintiff’s and appellant’s insistence, at this time, that we have not found good reason to set aside our decree. We are inclined to the opinion that the statute of 1882, another statute upon which defendant relies to sustain its right, is not as limited in its terms as plaintiff contends, at any rate, that the State authorities did not intend to offer a grant exclusively to railroads hereafter to be built and, at the same time, retain the right, without the least notice, of compelling the railroads already constructed to pay rent for all extensions already constructed. But be that as it may, there are other statutes, to say the Past, under which the defendant has the color of right which cannot be divested nor lessened in proceedings such as that now before us for decision. Besides, two Constitutional Conventions deliberated regarding the New Basin Canal and its rights without adopting ordinances indicating the least intention to havej it; that prior to their respective dates, this defendant railroad was to be treated as the lessee of the State or of the Board of Control of the Canal Company.

It must be borne in mind that this is a suit for rental and not a suit to recover possession of property. In face of the different statutes and .ff the attempt at consolidation, if it must be considered as an attempt, and of the many years that have elapsed without the least intimation of an intention to charge rent, we do not think that plaintiff is entitled to rental.

The record discloses that the defendant has occupied the ground for which rent is now claimed for prior years, in good faith; that large amounts have been expended in making improvements which have been of benefit to the State and its property, and now, even if the State is entitled to resume possession, it should be resumed without treating the defendant as having, during these many years, been a trespasser indebted for rent in a large amount. Above all, we are not convinced that plaintiff is entitled to recover rent, even if anything be due on that ground. It might be different if this were an action for possession. To recognize this iffaintiffi as a lessor, would be, in effect, to recognize its right to lease property of the New Basin Oanal Company. This right is expressly withheld from the latter corporation under the Constitution of 1879, and the Constitution of 1898.

The suit, if successful, would have the effect of placing in the treasury of the Canal Company the amount claimed .for rent, despite the fact that it cannot be a lessor of any of its property. While it is true that the State is a party to the suit, it is also true that the State, so far as is shown by the record, appears in the suit to recover rental of this property for the Canal Company, a claim which even the State cannot set up under the plain provision of the law, for the reason that its co-plaintiff, for which it sues, cannot be a lessor of the property.

But we gather from the evidence, that without the constitutional ordinances prohibiting the plaintiff Oanal Company from leasing its property, the defendant would not be responsible to the Oanal Company for the rent claimed. The State, as the owner of the property, recognized, doubtless, that a railroad along its banks would be a benefit to the canal. For that reason we infer she gave to the Metairie Railroad Company, in 1869, the privilege of constructing a road north of, and adjacent to, the new canal, and directed the representatives of the Canal Company “to afford every facility for the constructing of the railroad herein provided for, which shall also be constructed as to add to the efficiency of said levee.”

Even if the plaintiff, by not complying with the laws relating to consolidation of corporations, had lost its identity as a corporation, the State or the Canal Company, as we construe the different acts upon the subject, and the benefit received from the railroad as a highway between the city and the lake, would not be in a position to recover the rental claimed.

Even without regard to the pleas urged of estoppel and prescription, the State, because of express legislation, is precluded from recovering damages for the New Basin Oanal.

For reasons assigned, it is ordered, adjudged and decreed that the judgment originally rendered be and it is hereby reinstated and anew made the judgment of this court, affirming the judgment of the District Court, and rehearing is refused.


source: Caselaw Access Project

author: Monroe, L

license: Public Domain

text:
    No. 13,503.
    Frederico L. Solanas vs. Mrs Elise B. Lupin.
    Syllabus.
    Where, in an action for damages for injuries resulting from an assault committed by a woman upon a man who had been her paramour, and who, whilst occupying those relations, had eloped with her minor daughter, it appears that he had thereafter induced her to assume, upon occasions, her former relations with him, assuring her that his suit for damages would be dismissed, the offence committed by the woman will be held to have been eon doned in so far as concerns such action, and the same will be dismissed.
    APPEAL from the Civil District Court, Parish of Orleans— Theard, J.

      Arthur J. Peters for Plaintiff, Appellant.

      Albert Yoorhies for Defendant, Appellee.
   The opinion of the Court was delivered by

Monroe, L

This is an action in damages for personal injuries. The plaintiff alleges that he was passing along a public street, on his way to his business, when he was attacked by the defendant, who had been lying in wait for him, and who fired upon him with a pistol; that, by the first shot, he was struck in the shoulder, and fell to the ground, and that the defendant fired twice more, striking him in the wrist and hip, and that she would have continued the attack and would, probably, have killed him, but for the interference of third persons. ITe alleges that he has been damaged to the extent of $1000 by reason of loss of time and position, expenses, etc., resulting from, and necessitated by, his injuries. And he claims the further sum of $4000 as exemplary damages. The defendant pleads the general denial.

The evidence in the record sustains the averments of the petition as to the circumstances of the attack upon the plaintiff; but makes it plain that he grossly exaggerated the extent of his injuries and damage. He received no wound, whatever, in the hip, and the wound in the shoulder is characterized as a “scratch” by the attending physician, who was examined as a witness in his behalf, whilst, as to the wound in the wrist, the same physician says, “very superficial wound in the wrist * * * merely a flesh wound.

“Q. — Would a wound like that interfere with its use?” (i. e. the use of the wrist).
“A — No, I don’t think it would; it would for the first two or three days, but after that it would not interfere at all.
“Q. — Did you or not consider the wound of Mr. Solanas serious?”
“A. — No, sir.”

The tendency of the plaintiff to magnify his injuries is further illustrated by the fact that, although he is shown to be a young man, (having been about twenty-five years of age when the shooting took place), and although his wounds consisted of a scratch on the shoulder, and a superficial flesh wound in the wrist, he fell to the ground, and believing, or pretending to believe, that he was unable to walk, prevailed on two negro men to carry him to his home, in their arms. His disposition to exaggerate the loss and damage sustained is equally manifest. ITo. says that he was laid up for nine days in bed; that he lost his place and was unable to work or to find employment for four months; that his doctor’s bill was $23 or $26; that the value of the time lost by him was $250, and that he estimates his bill for drugs and for extra care at $50 or $60. We find no reason whatever for his having gone to bed on account of his wounds, and still less for his staying there for nine days, nor can we understand why his drug bills and the extra care and attention should be estimated at $50 or $60. Conceding that the wound in the wrist might have produced some soreness, and might have made it inconvenient for him to do the work of a stenographer, or fi typewriter, for a few days, or even weeks, the pretense that he was incapacitated for four months is insufficiently supported by evidence, and it is untrue that he lost his place, in which he was receiving $65 per month, on account of his wound. The physician gives some negative testimony to the effect that his bill, (which does not appear to have been paid), might have been $23.00, and. to that extent corroborates the testimony of the plaintiff. It also appears that the plaintiff lost some little time, and suffered some slight inconvenience; and, upon this basis, if there was nothing more to be said, he would be entitled to recover actual damages, to which something would be added by way of punishment to the defendant and of warning to others. Rut the whole story has not been told. It appears from the record that the plaintiff was the paramour of the defendant for several years, under circumstances which might well have justified her in believing that he would marry her, but that, instead of doing so, he induced her minor daughter, seventeen years of age, who was living in the house with her mother, to elope with, and marry him, and that the defendant was so wrought up by the situation in which she found herself that she attempted her own life by shooting herself through the breast, near the heart, as a consequence of which, she was confined in the hospital for several weeks. It further appears that, after his marriage with defendant’s daughter, the plaintiff fell in to a desperate strait concerning a certain sum of money, for lack of which he was threatening suicide; and that, by means of such threats, to which were added supplications, the defendant was induced to go to his relief and furnish the required sum; but that, when, needing the money herself, she demanded its return, it was not forthcoming, and she was obliged to bring a suit for its recovery; that she obtained judgment against the plaintiff in the City Court, hut was unable to realize on it, and that eventually, upon the advice of his counsel, the plaintiff authorized a proposition'to be made for the payment of said judgment in monthly instalments. The defendant claims that, pending negotiations upon that subject, and, in connection therewith, she was charged by her counsel with the delivery of a letter to the plaintiff, and that she was waiting to deliver it, but that the plaintiff had been in the habit of passing her house and smiling satirically, and jeering- at her, and that when he appeared with a smile of that description on his face she was driven to frenzy, and, rushing to her wash-stand, took her pistol from the drawer, and shot him instead of delivering- the letter.

That the defendant had been driven to frenzy, it is easy to believe, and although she may have become quieter as time wore on, it can readily be understood that the pendency of the litigation referred to was calculated to revive her excitement and fan it into blaze at any moment. Under such circumstances, any damages which might be recoverable against her would, in any event, he mitigated to attenuation by the vile misconduct of the plaintiff operating so largely as the contributing cause. But the whole story has not yet been told. There is evidence g-oing to show that during the year 1899, months after the institution of this suit, the plaintiff, on more than one occasion, visited the house of the defendant, at night, and was permitted by her to resume, temporarily, his former relations, and that he expressed contrition for what had been done, and assured her that this suit would be dismissed. This astounding- development is supported by the testimony of the defendant, whilst there is some denial oí the facts by the plaintiff. But the testimony of tho defendant is corroborated in important particulars by that of another witness, a cousin of the plaintiff, who was not even cross-examined and who is not impeached in any way. We can see no reason, therefore, for not accepting the defendant’s statement as the truth.

Under these circumstances, and whilst it further appears from the evidence in the record, that the defendant was prosecuted criminally fpr the assault upon the plaintiff and was convicted and pardoned, we are of opinion that as to any civil claim for damages the plaintiff must be held to have condoned the offence by his subsequent conduct, and hence, that the demand herein set up was properly rejected. The judgment appealed from is therefore affirmed.

Rehearing refused.


author: Blanchard, J.

text:
    No. 13,731.
    Elias A. Pharr vs. Joseph Gall et als.
    Syllabus.
    1. What the evicted vendee has a right to claim against the seller is the restitution of the price he paid, and, in addition, the value of the fruits and revenues which he has been compelled to return to the true owner, the costs of the eviction and warranty proceedings, and such other damages as he may have suffered.
    2. But the only effect of his claiming above and beyond these should be the reduction of his demand to what the law permits him to claim — not the dismissal of his entire demand.
    APPEAL from the Nineteenth Judicial District, Parish of Iberia— Foster, J.

      Andrew Thorpe and Thomas H. Thorpe for Plaintiff, Appellant.

      Broussard, Dulaney & Dunbar for Defendant, Appellee.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiff appeals from a judgment sustaining an exception of no cause of action and dismissing his suit.

The substantial allegations of his petition are:—

That in 1878 he purchased from Jasper Gall, with full warranty against eviction, the undivided half of a certain lot of ground for the price of $4000 cash paid, and went into possession.

That in 1882 he purchased of defendant Jaspar Gall, with like warranty, another lot of ground for the price of $300 cash paid,'and went into possession.

That the lots of ground so purchased by him were, at the date of the purchases, the property of the marital community of acquets and gains then existing between the said Gall and his wife, Mrs. Frances Kiggs.

That Mrs. Frances Eiggs, wife aforesaid, by public act, ratified said sales and renounced in favor of the purchaser all her dotal and paraphernal rights on said property, as well as her rights therein as spouse in community.

That Mrs. Frances Eiggs, wife, etc., died in 1888, leaving five children, the issue of her marriage with Jasper Gall, and that these heirs of hers accepted her succession unconditionally.

That in 1895 the property so purchased by him (petitioner) was seized under a writ of fieri facias, in execution of a judgment recorded against Jasper Gall by Lucius D. ITopkins, advertised for sale, sold by the sheriff and adjudicated to ITopkins, the seizing creditor.

That the judgment of Hopkins, under which this sale was made, was for $9000, and it recognized and ordered enforced a special mortgage on the property consented to by Jasper Gall in favor of said ITopkins in June, 1873, and duly registered on that date in the mortgage records.

That by this proceeding taken in the suit of Hopkins against Gall, petitioner was evicted from the property, and was compelled to repurchase same from Hopkins, the adjudicatce, which he did in December, 1895, for the price and sum of $8320.08 cash paid.

That Jasper Gall and the heirs of Mrs. Frances Eiggs, his deceased wife, are responsible for the damages and loss sustained by him by reason of the eviction aforesaid, and that the sum of such damage and loss is the $8320.08, which is the amount he paid Hopkins in the purchase of the property.

The prayer of his petition is for judgment against defendants, in the proportions legally due by them, for the sum of $8320.08, with legal interest thereon from the date of the sale by Hopkins to him.

The exception of no cause of action is predicated upon the theory that plaintiff should have sued specifically for the return of the purchase price paid by him to Gall for the properties in 1878 and 1882, which amount, in the aggregate, was $4300.

It is urged that he has no right' of action to recover the amount, $8320.08, which he paid Hopkins for-the property in December, 1895.

True, C. O. 2506 declares that the evicted vendee has a right to claim against the seller the restitution of the price he paid him. He may also claim of him the value of the fruits and revenues, when he has been compelled to return them to the owner who evicts him. Also all the cost occasioned, either by the suit in warranty on the part of the buyer, or by that brought by the original plaintiff. Also the damages, when he has suffered any, besides the price he has paid.

These constitute the measure of the redress he may seek against his vendor.

If he claim more his demands will be reduced to what the law allows him.

But because he claims more it should not operate the dismissal' of his action.

Here, the plaintiff lays claim to the amount he saw fit to pay Hopkins, the evicting mortgagee, for a new title.

This amount is largely in excess of the sum he originally paid Gall for the properties. But the greater includes the less, and if he may not recover, on his demand, the larger sum he seeks, he may yet recover, in the suit as brought what he did pay Hopkins, together with the other incidentals enumerated in O. C. 2506, if, so be it, he can make out a case for the same on the proof to be administered.

It is the fact of eviction which gives the plaintiff a right of action.

All the facts are given in his petition, and under his allegations he may administer proof of the amount he paid Gall and also the amount he paid Hopkins for the present title under which he holds.

He may be entitled, under the law, to a judgment for the former, and not entitled to a judgment for the latter.

The only result, therefore, of his claiming the larger amount he paid Hopkins should be the cutting down of his demand to the smaller sum he paid Gall.

It is no where said in the law that the penalty of claiming inore than may be proved to be due is dismissal of the entire demand and denial of a hearing.

We will add, however, that it were better form and better practice for the plaintiff to have sued specifically for the return of the purchase price be paid Gall, together with such demand, setting forth the same, as he may have for fruits and revenues, for costs occasioned him by the eviction, and for such damages as he may have suffered.

It is ordered and decreed that the judgment appealed from be avoided and reversed, and that the cause be remanded and reinstated on the docket of the court a qua for further proceedings in due course— costs of both courts in this behalf to be borne by defendants and appellees.

Eehearing refused.


author: Nicholes, O. J.

text:
    No. 13,791.
    F. J. DeGravelle vs. The Iberia and St. Mary Drainage District.
    Syllabus.
    1. A section of a statute which expressly repeals a particular prior law only effects its repeal to the extent that the provisions of the two acts are contrary to and in conflict with each other, when by the title of the repealing act its scope as to repealing other laws is so limited.
    2. The seventh section of Act 114 of 1900 (an act to carry into effect Article 281 of the Constitution of 1898), which declares “that the elections provided for in that act shall be held under the general laws of the State, when not inconsistent with its provisions,” is not a repealing and superseding, but an enlarging and assisting section. Its effect was not to supersede the provisions of existing statutes providing for these special elections, but to caii in aid of them such provisions of the general election laws of the State as might be needed to cover any point not otherwise provided for.
    3. It is not the duty of the courts to examine the proceedings generally of boards of commissioners of drainage districts on sweeping allegations. They will presume them to be legal and regular unless expressly attacked on specific grounds.
    4. Drainage districts are established either by direct authority of the General Assembly or by delegated authority to political bodies or subdivisions of the State. The body exercising this authority determines over what territory the benefits are so far diffused as to render it proper for all lands to contribute to the cost of the drainage work. The subject for Its determination is legislative in character. The legislative acts cannot be attacked on the ground of error in judgment regarding the special benefits and defeated by satisfying the courts that no special or particular benefits are received unless under very exceptional conditions. They cannot be attacked for impolicy or overthrown by showing that in particular instances they operate harshly or unjustly. Judicial judgment is not to be substituted lightly for legislative judgment. The benefits contemplated need not be direct nor immediate.
    APPEAL from the Twenty-third Judicial District, Parish of St. Mary — Allen, J.

      Saunders <& Gurley for Plaintiff, Appellant.
    Foster, Milling & Sanders for Defendant, Appellee.
   Statement of ti-ie Case.

The opinion of the court was delivered by

Nicholes, O. J.

Plaintiff alleged that he was a property owner and lax payer of the Parish of Iberia, his assessment for the year 1900 on real estate being described as: Bounded on the north by Canal street; on the south by Cooper street; east by a line of Hudson and that of Boiler and others; and west by Main street; on which property fronts, insaid parish being eighteen hundred dollars ($1800.00); that the said property was embraced within what is known as the Iberia and St. Mary Drainage District; that the said district was organized under and by virtue of certain pretended authority derived from Act No. 12 of the Acts of the Legislature of Louisiana for the year 1900; that under the said pretended authority a certain drainage district was organized called as above, and commissioners were appointed by the Police Juries of Iberia and St. Mary Parishes, and A. L. Monnot was elected as President thereof; the domicile of the said drainage district being fixed at the town of Jeannerrette, Parish of Iberia, Louisiana.

That the said Board of Commissioners did cause a certain election to be held within the said drainage district, for the purpose of voting for a five mill tax for thirty years, and the issuance of one hundred thousand dollars ($100,000.00) worth of five per cent, interest-bearing bonds, on all property situated within the drainage district, as set forth in the ordinance of the Police Juries reorganizing said district, a copy of which was annexed. That the returns of said election were compiled by the said Board of Commissioners, and that subsequently, to-wit, on the 6th day of October, 1900, the said Board of Commissioners did, by resolution, a certified copy of which was hereto annexed, undertake to levy a five mill tax against all the property within the said drainage district, and to pass a resolution authorizing the issuance of one hundred thousand dollars worth of five per cent, bonds, for the purpose of draining the said district.

That the tax of five mills so levied and the bonds so issued bear upon and affect his property, and operate as an illegal tax and burden against the same. That he annexed hereto copies of all the proceedings had by the old Board of Commissioners of the Iberia and St. Mary Drainage District, the Police Juries of Iberia and St. Mary Parishes, and of the present board, regarding the organization, all of which he alleged were irregular, null and void.

That the election held on the 9th day of October, 1900, wherein the said tax was pretended to be voted and all proceeding's thereunder was illegal, null and void, for the following reasons, among others, to-wit:

1. That Act No. 12 of 1900, and Act No. 5 of the Extra Session of the Legislature of Louisiana of 1899, under which the said election wa3 claimed to have been held, were illegal and were repealed by Act No. 114 of the Acts of the Legislature of Louisiana of the Session of 1900.

2. That the said election was not ordered, held and returned or canvassed in accordance with the general election laws of Louisiana, nor in accordance with the provisions of Act No. 114 of 1900.

That his said property was situated between the Bayou Teche and the public road leading from Eranldin to New Iberia, and that his said property, as well as all the other property so situated between said bayou and said public road, was not in any way benefited or improved by 'the drainage system and work undertaken and contemplated by the said Board of Commissioners, and that hence, the said tax, even if legal in other respects, was illegal, null and void as to his said property, and was an unauthorized attempted exercise of the taxing power by the said commissioners, and that the bonds, if issued, would operate as an incumbrance and burden upon plaintiff’s property, thereby causing him irreparable injury. That unless the said Board of Commissioners were enjoined and restrained from enforcing the said tax and .issuing the said bonds, they would proceed to do so, to the irreparable injury of plaintiff. That a writ of injunction was necessary to protect his rights in the premises.

In view of the premises he prayed that the Board of Commissioners of the Iberia and St. Mary Drainage District be cited to show cause why it should not issue as prayed for, upon petitioner giving bond as required by law, enjoining and restraining the said board- ,its officers, agents, servants and employees, from proceeding further to levy or collect the said five mill tax, or issue or negotiate the one hundred thous- and dollars’ worth of bonds provided for in their resolution of October 16th, 1900, and that after due proceedings, the said tax and bonds be declared illegal, null and void, and the -injunction prayed for be made perpetual.

The defendant, after pleading the general issue, alleged that the Iberia and St. Mary Drainage District existed under and by virtue oí Act No. 48 of the Acts of the Legislature of Louisiana of 1900; it reorganized under the provisions of said act. That said act and Act No. 5 of 1899 were not repealed as alleged in plaintiff’s petition, but were valid and legal, that the said reorganization was legal, and that the commissioners were legally appointed and qualified; that after said board had become thus reorganized, it, on the 23rd day of August, 1900, by resolution, submitted to the property tax-payers, qualified as electors under the Constitution and laws of Louisiana, the proposition described in plaintiif’s petition, which proposition was accepted by a unanimous vote, both in number and amount, of all persons voting at said election; that said election thus ordered, held and returned, was legal, valid an I binding on all property tax payers and property situated in said district, and that the matters and claims set up in plaintiff’s petition could m no manner affect the validity of said tax, or the bonds to be issued thereunder, and that same were legal and valid under the Constitution and laws of Louisiana. It especially denied that the property described in plaintiff’s petition was not benefited by the drainage of said district; but to the contrary, said property was directly benefited, for the reason that to drain the low lands located in that community would increase the commercial value of said property; that all lands situated on the Bayou Teche could be drained in the canal proposed to be cut through said district; thereby preventing the polluting of the waters of the Teche and making them more valuable for1 commercial and domestic use. That the health of the entire community would be greatly benefited by the purification of the said waters of the Teche, and by the drainage of the low lands and malarial district situated back of the front lands on Bayou Teche, which would be accomplished by the cutting of said canal, and will make said front lands much more desirable and valuable.

The defendant prayed that the injunction be denied; that all the issues herein raised be decided in favor of defendant; and that it, through its president, be authorized to proceed to issue said bonds and to levy and assess said tax. . It prayed for all orders necessary and for general and equitable relief.

It was admitted that the returns of the election of the Iberia and St. Mary Drainage District were compiled by the Board of Supervisors of Election of the Parish of St. Mary for that portion of the district situated in the Parish of St. Mary, and by the Board of Supervisors of Election in the Parish of Iberia, and. that public proclamation was made as required by law and the proces verbal of same forwarded to the Secretary of State of Louisiana.

That the promulgation of said election as made by the Drainage Commissioners and also by the Boards of Supervisors of both the Parishes of Iberia and St. Mary, was duly advertised in the official journals of both parishes, for the time -and in the manner required by lav/.

It was admitted that the property described in plaintiff’s petition was situated between Bayou Teche and the public road leading from the town of Franklin to the town of New Iberia; that said tract of land was from one to three acres in depth, as was a great majority of the lands situated between the said public road and said bayou, as described in plaintiff’s petition; that the rain water which falls upon the property described in plaintiff’s petition flows into the Bayou Teche; that the front portion, or that portion fronting upon the public road, was higher than that portion which fronts upon the bayou. It was further admitted that in the construction of this canal, all of this water which falls upon said property could be drained into the canal.

The District Court rendered judgment refusing and denying the application for an injunction, and rejecting the demand of the plaintiff, at his costs.

It adjudged and decreed, that the election ordered, and held by the Iberia and St. Mary Drainage District on October 9th, 1900, the tax levied on the property, situated in said drainage district and the bonds issued by said district be, and the same are each and all hereby declared to be legal, binding and valid.

The plaintiff appealed.

Opinion.

Appellant, F. Degravelle, in a petition to the District Court for the Parish of Iberia, prayed that the Board of Commissioners of the Iberia and St. Mary Drainage District be cited to answer and show cause why an injunction should not issue enjoining it from proceeding further to levy or collect a five mill tax upon the property within that district or to issue or negotiate one hundred thousand dollars of bonds, as provided for in its resolution of October 10th, 1900, and prayed that after due proceedings the said tax and bonds be declared illegal, null and void, and that the injunction prayed for be made perpetual.

The court, after trial, refused and denied the injunction prayed for and rejected plaintiff’s demand at his costs.

It further decreed the election ordered and held on October 9th, 1900, the tax levied on the property situated in said drainage district and the bonds issued by said district, each and all to be legal, binding and valid.

He appealed.

In his petition he admitted that his property was situated within the limits of the drainage district, but he averred that from its situation and condition it and all other property situated between Bayou Teche and the public road leading from Franklin to New Iberia, was not in any wise benefited by the drainage system and work undertaken and contemplated by the Board of Commissioners, and that hence the tax, even if legal in other respects, was illegal, null and void as to his property and an unauthorized attempted exercise of the taxing power by the commissioners, and the bonds, if issued, would operate as an encumbrance and burden upon petitioner’s property, thereby causing him irreparable injury.

Plaintiff does not call in question the right of the General Assembly or the Police Juries of the Parishes of Iberia and St. Mary to legally have created within the declared limits and boundaries the Iberia and St. Mary Drainage District.

His contention is that notwithstanding his property is situated within the district, it is not subject to taxation.

His prayer, if granted, would leave his property within the district for the purpose of the works of the drainage board, and yet take it substantially out of the taxing district. We do not understand the plaintiff to contend that the judiciary has the power or authority to alter the limits and boundaries of the district. Drainage districts are established cither by the direct authority of the General Assembly or by delegated authority to different political subdivisions of the State. The body exercising this authority determines over what territory the benefits are so far diffused as to render it proper for all lands to contribute to the cost of the drainage work. The whole subject of the determination of Taxing drainage districts belongs to the Legislature. When the fixing of the district is left for decision to a local board or body, it for that purpose exercises legislative power and its action is as conclusive as if taken by the Legislature itself.

It has been repeatedly decided that the legislative acts assigning districts for special taxation for benefits, can not be attacked on the ground of error in judgment regarding the special benefits, and defeated by satisfying a court that no special or particular benefits are received. That if the Legislature has fixed the district and laid the tax for the reason that in the opinion of the legislative body such district is peculiarly benefited — that is conclusive; that judicial judgment or opinion on that subject is not to be substituted for legislative judgment or opinion (Cooley on Taxation, page 459).

That the question is legislative and conclusions reached on the subject being within the scope of legal power are not unlawful because like all legislative questions the question may have been in some instance or to some extent decided erroneously (Cooley on Taxation, pages 448, 449, 450). Cooley, on page 450 of his work, declares that the only exceptions which have been recognized to this rule are those cases in which under pretense of apportionment, a work of general benefit has been treated as a work of merely local consequence and the cost imposed on some local community in disregard of the general rules which control legislation in matters of taxation.

On page 179 the author further says that “whatever is the rule established by legislation it is presumptively as just and equal in the opinion of the Legislature as the circumstances would permit. It- is not to be questioned for impolicy and cannot be overthrown by showing that in particular instances it operates unjustly.” In Lockwood vs. St. Louis, 24 Mo. 20 it was said that “it was one peculiarity of assessments that the measure of supposed benefits might be whatever appeared to the Legislature most just under the circumstances.”

The question submitted to us is not a new one in Louisiana. It has been repeatedly submitted and answered in the matter of local taxes for levee purposes, the decisions being adverse to the contention made by the appellant. Some of these decisions are referred to in Hill vs. Sheriff, 46 Ann. 1566 and George vs. Sheriff, 45 Ann. 1232.

Cooley, on page 423, says: “The district in this particular instance is a drainage district. The expense of constructing drains in order to relieve swamps, marshes and other low lands of their stagnant water, is usually provided for by special assessments. The grounds on which this is done are not always very clearly indicated in the statutes. Sometimes the ground indicated is that the drainage is important to the public health, and in such cases the right to levy assessments for the purpose can not plausibly be disputed. The special benefits from the enhancement of values must accrue mainly to the owner of the lands drained, who ought therefore to bear the expense:”

But the authority to levy assessments for draining lands upon no other consideration than such as pertain to the improvement of the land, as property, must, it would seem, be confined, within limited bounds. It has been said that a tax cannot be levied upon any portion of the public for the construction of a drain in- which the public are not concerned. Even the owner of the land benefited cannot be taxed to improve it unless public considerations are involved, but he must be left to improve it or not, as he may choose. But where any considerable tract of land owned by different persons is in a condition precluding cultivation by reason of excessive moisture which drains would relieve, it may be well said that the public have such an interest in the improvement and the consequent advancement of the general interest of the locality, as will justify the levy of assessments upon the owners for drainage purposes.”

“Such a ease would seem to stand upon the same solid ground with assessments for levee purposes, which have for their object to protect lands from falling in to a like condition themselves.”

We think it unquestionable that the drainage district in this instance was created in the interest of the locality. The tax levied could nipt be sot aside as a whole even if particular properties could, from some particular cause, escape payment of the same.

The claim that plaintiff’s particular property is not benefited by the proposed drainage work is not supported by the evidence, and therefore we need not discuss whether it would be specially exempted from' taxation, if it was, in fact, not benefited.

We find it admitted that “the rain water which falls upon the property described in plaintiff’s petition flows into the Bayou Teche; that the front portion or that portion fronting upon the public road is higher than that portion which fronts upon the bayou;” that “in the construction of this canal that all of this water which falls upon this property could be drained into the canal,” that “when the drainage of the district is completed by the Board of Commissioners of the Iberia and St. Nary Drainage District, it will drain and bring into cultivation something near twenty-five thousand acres of land, which otherwise is unfit for cultivation, being covered by water the larger portion of the year, especially in the rainy seasons, and drying out in the very diy seasons; that these lands, when drained, will be as productive as any situated in the district, and that it is the consensus of opinion of the inhabitants of said drainage district, that when said property is drained, and the drainage system is completed, that all lands situated within the limits of the said drainage district will be increased in value commercially.”

“It was further admitted that it is the opinion that the drainage of these low lands as above referred to will materially benefit the health of the inhabitants of the entire drainage district; that after the drainage is completed the sugar refineries situated in said district will then be able to pump the refuse from their refineries into the canal, which will connect directly with the Gulf of Mexico, and thereby the waters of the Teche will be purified and made wholesome; that with the present system of pumping of refuse into the Bayou Teche, the water of said bayou during the rolling season becomes very offensive, emanating a stench that is not only very disagreeable, but is a menace to the health of the community, and interferes with commerce in the bayou. That the polluting of said wTater with refuse is a crime under the United States statutes and that the proprietors of ceriain refineries have been indicted and arrested therefor, and that it is a serious problem in some cases to dispose of said refuse.”

P3aintiiPs«eontention is that the election held on the 9th of October, 1900, whereat the tax was voted and all proceedings thereunder are illegal, null and void, for the following reasons; among others:

1st. That Act No. 12 of 1900 and Act No. 5 of 1899, under which the said election was claimed to have been held, were illegal and repealed by Act No. 114- of the Acts of the General Assembly of Louisiana of the session of 1900.

2nd. That the said election was not ordered, held, and returned or canvassed in accordance with the general election laws of Louisiana, nor in accordance with the provisions of Act No. 114 of 1900.

We limit the issue raised under these two headings to the objections specifically set up. It is not our duty to examine generally the proceedings of the Drainage Board of Commissioners to ascertain whether they be legal or not. We presume them to be regular and legal unless expressly attacked.

Act No. 114 of 1900 is entitled “an act to authorize any municipal corporations, parishes, or drainage districts (the city of New Orleans excepted) to incur debt, to issue negotiable bonds therefor; to levy-special taxes and to provide the manner in which special elections shall be held in such parish, municipality or drainage district for the purpose of incurring debt; issuing negotiable bonds therefor, and levying special taxes for paving and improving streets/roads and alleys; purchasing or constructing- a system of water works, sewerage, drainage, lights, public parks and buildings, bridges, and other works of public improvement the title to which shall rest in the municipal corporations, parish, or drainage district, and to carry into effect Article 281 of the Constitution of 1898 and to repeal all laws in conflict with the same.”

The seventh section of the act declares that the special elections provided for in the act “shall be held under the general election laws of the State when not inconsistent with the provisions of the act and at the polling places where the last election in said parish or municipality was held unless the same have been previously changed or additional polling places established.”

The ninth section declares that “all laws or parts of laws contrary to or inconsistent with the provisions of the act be and the same are hereby repealed, especially Act No. 5 of the Extra Session of 1899, and that this act take effect from and after its passage.”

The matter of the repeal of Act No. 5 of 1899 is not mentioned in the title of Act No. 114 and therefore that act remains uniepealed as is Act No. 12 of 1900, except to the extent that their provisions are “contrary to and in conflict with Act No. 114 of 1900.”

Our attention has not been called to any particular portion of Act No. 5 of 1899 or Act No. 12 of 1900, as being contrary to or inconsistent with Act No. 114 of 1900, nor, if there be such inconsistency wherein it is a matter of importance as affecting the questions before us. The objection on this score as made, is not well grounded. We are not informed by the pleadings of any “illegality” either in Act No. 5 of the Extra Session of 1899 or in Act No. 12 of 1900.

Plaintiff urges in general terms that the election at which the tax was levied and all proceedings thereunder were null and void, for the reason that it was not ordered, held, returned, and canvassed in accordance with the general election laws of the State, nor in accordance with die provisions of Act No. 114 of 1900. He does not attempt to specify in what particular there was a departure from the provisions of the Act of 1900, and prior existing laws on the subject of these special elections, nor from the requirements of the general election laws of the State. Section one of Act No. 114 of 1900 declares that the drainage district may incur debt and negotiate negotiable bonds therefor when authorized to do so, by a vote of the majority in number and amount of the property tax-payers, qualified as electors under the Constitution and laws of the State, voting at an election held for that purpose after due notice of said election given by the president of the Police Jury or the Mayor of the municipality.”

We do not perceive any inconsistency in the provisions of this section of the act with those of prior laws on the same subject matter.

The declaration made in the seventh section of the act that the elec-' tions provided for in the first section should be held under the general election laws of the State when not inconsistent with the provisions of that particular act was not intended to repeal the provisions of prior laws on the subject of these special elections and supersede them by the provisions of the general election laws of the State, but to retain in full force the provisions of existing laws on the subject of special elections and to call m aid of them such provisions of the general election as might be needed co cover any point not already specially covered.

The section in question was not a repealing and superseding section, but an enlarging and assisting one.

We are of the opinion that the judgment of the District Court refusing plaintiff’s application and prayer for an injunction and rejecting his demand as based upon the reasons assigned by him, was correct. No action is alleged to have been taken by the defendant board towards incurring a debt or issuing bonds under the authority conferred upon them through the election held on the 9th of October, 1900.

We do not consider that the legality or illegality of any action taken by the defendant board under authority of that election is an issue in this case. As so explained and understood the judgment of the District Court is hereby affirmed.


author: Monroe, J. Breaux, J. Blanchard, J.,

text:
    No. 13,370.
    Mrs. Clara J. Millaudon et als. vs. Peter Gallagher.
    Syllabus.
    1. The sale of property for taxes, based upon an assessment and other proceedings prior to 1890, in the name of a dead man, is null.
    2. A tax adjudieatee, under Act 82 of 1884, who fails to pay Che .taxes for 1880 and subsequent years, assumed by him, acquires no title, and if lie takes possession of the property is a possessor in bad faith in whose favor the prescription of ten years, under C. C. 3479, does not run.
    3. The prescription of three years, under Act 105 of 1874, does not cure such radical defects as those above indicated, nor does the prescription of, five years under C. C. 3543.
    APPEAL from the Civil District Court, Parish of Orleans— Bightor, J.

      Kernan & Gowland for Plaintiffs, Appellants.

      E. Howard McCaleb, Emile Pomes and Arthur B. Leopold for Defendant, Appellee.
    On the application for rehearing by Breaux, J.
   Statement of the Case.

The opinion of the court was delivered by

Monroe, J.

This is an action to annul a tax title and to have the plaintiffs decreed to be the owner of two squares of ground in New C rleans.

It is admitted, and otherwise established, that the plaintiffs are the sole surviving heirs of Jeanne Baptiste Jeannin; that said Jeannin acquired the property in question by purchase in 1836 and continued to own it until 1863, when he died; that his succession was opened in the kite Second District Court for the Parish of Orleans in 1866, and that the names of his heirs were placed on record in said proceeding, but that no formal judgment putting them in possession has ever been registered in the conveyance office. In 1886, the two squares in question were advertised for sale, under Act 82 of 1884, as the property of J. B, Jeannin, for the taxes of 1876, 1877, 1878, assessed in that name, and, upon June 20, 1886, they were adjudicated to Domingo Negrotto, Jr., for one dollar each. Thereafter, in 1888, Negrotto transferred his claim, under the adjudication to the Western! Land and Immigration Company, to which company the tax collector assumed to execute a deed; and said company, in the following year, conveyed the said squares to the Trustees of the Land Trust of Indiana, who conveyed them to other trustees of the same trust, by whom, in 1896, they were conveyed to Gallagher, the present defendant. It is admitted that the tuxes from 1885 to date have been paid, by the Land Trust and its authors, but it does not appear that the adjudicatee, under Act 82 of 1384, or his transferrees, have ever paid the taxes from 1879 to 1885, inclusive, which, under the act mentioned, were required to be paid as a condition precedent to the vestiture of title.

The plaintiffs, Mrs. Clara J. Millaudon, Mrs. Francois Delbert, Pierre Ulysee Jeannin, and Etienne Auguste Jeannin, attack the title of the defendant upon the grounds:

1. That the tax sale from which the title is derived was based upon assessments and proceedings in the name of a dead man and was, therefore, null and void.

2. That no notice was given to petitioners, who were the owners, or to the succession of J. B. Jeannin of the intended sale.

3. That neither the adjudicatee nor his transferree have complied with the law under which said sale was made, by paying1 the taxes required to be paid as part of the purchase price, and hence would have acquired no title even had the property been properly assessed and advertised.

To this defendant answers, setting up title derived in the manner as hereinbefore stated, and pleading the prescription of three, five and ten years.

Opinion.

We are unable to differentiate this ease from those in which it has been held that assessments and! other proceedings culminating in the sale of property made and conducted in the name of a dead man have no warrant in law, and convey no title. Stafford vs. Twitchell, 33 Ann. 520; Jackson vs. Wrenn, 36 Ann. 315; Kearns, Curator, vs. Collins, 40 Ann. 453; Edwards vs. Fairex, 47 Ann. 170; Walsh vs. Harang, 48 Ann. 984; Succession of Lacroix vs. Lumber Company, 49 Ann. 1445; Kohlman vs. Glaudi, 52 Ann. 700.

In the eases to which we are referred by the counsel for the defendant, as supporting a different view (Maspereau vs. Batt, 40 Ann. 482; Palmer vs. Board, 42 Ann. 1122; Prescott vs. Payne, 44 Ann. 655: Augusti vs. Bank, 46 Ann. 529; Denegre vs. Buchanan & Donan, 47 Ann. 1159), there were living persons, or existing entities, to represent the names in which the property was assessed, and, those names appearing on the books of the conveyance office, it was held that it was no part of the duty, as it was not within the power of the assessors and collectors to determine, as between such apparent owners and other claimants, in whom the legal title was vested. These cases do not conflict with the jurisprudence as embodied in the cases first above cited. Upon the other hand, cases arising since 1890 stand on a different footing, by reason of the provisions of the Acts Nos. 106 and 140 of the session of that year.

It is not claimed, as far as we are able to discover, that the conditions of Act 82 of 1884, requiring payment of the taxes due subsequent to the adoption of the Constitution of 1879 and prior to the adjudication, have been, complied, with. Counsel for defendant say, in their brief, that this difficulty is met by the decision of this court in the matter of Bilgery vs. Land Trust, 48 Ann. 89Ü, in which (it is said by the counsel that) this court sustained a decision of the Circuit Court of the United States, decreeing the taxes in question to have been extinguished, and relieving the property of the inscriptions therefor.

It is true that, in the case cited, this court did hold that a certain judgment rendered by the Circuit Court of the United States, concerning taxes on property adjudicated to Domingo Negrotto, Jr., and by him conveyed to the Western Land and Improvement Company, was binding between the parties thereto and their vendees and assigns. The opinion in that case does not identify any property, however, and from the certified copy of the pleadings and decree in a certain case from the Circuit Court which we find in the record, and which is said to be the one referred to in that opinion, it appears that the matter did not concern the property here in controversy, but related entirely to other squares and parts of squares.

It is well settled that, under such circumstances, no title passed to the original adjudicatee, and it follows that he could have transferred none to his transferree. State ex rel. Martinez vs. Tax Collector, 42 Ann. 677; Reineck vs. Lang, 47 Ann. 914; Johnson vs. Martinez, 48 Ann. 53; Kohlman vs. Glaudi, 52 Ann. 700.

The prescription of three years,- set up by the defendant under the act of 1874, does not cure such radical defects in title as are here involved. Parish of Concordia vs. Bertron, 46 Ann. 558; Johnson vs. Martinez, 48 Ann. 52; Marmion vs. McPeake, 51 Ann. 1631; ICohlman vs. Glaudi, 52 Ann. 700.

Still less does the prescription of five years, which, by the terms of the law (C. C. 3543), applies only to informalities. The prescription of ten years, under C. C. 3479, “must be supported by corporeal possession in the beginning, after which if it has not been interrupted, it may be preserved by external use and public signs, announcing the possessors’ intention to preserve the possession of the thing, as the keeping up of roads and levees, the payment of taxes, and other similar acts.”

Chamberlain el als. vs. Abadie, 48 Ann. 589, 590.

The record before us contains no evidence going to show actual possession by the defendant or his authors, at any time. But, even if it were otherwise, and it appeared that Negrotto took possession June 20, 1886, before any deed was executed, and upon the faith of the adjudication, he did so knowing that he had not paid the taxes which the law required should be paid as a condition precedent to the vestiture of title, and hence he was a possessor in bad faith. And, if it be conceded that his transferree was a possessor in good faith, nevertheless, the possession had not lasted ten years when this suit was filed, since the deed Lo the Western Land, Etc. Company, as transferree of Negrotto, bears date December 15, 1888, whereas this suit was filed December 12, 1898.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that there now be judgment in favor of the plaintiffs, Mrs. Clara J. Millaudon, born Jeannin, wife of Clement O. Millaudon, Pierre Ulysee Jeannin, Mrs. Widow Francois Delbert, born Jeannin, and Etienne Auguste Jeannin, and against the defendant, Peter Gallagher, decreeing said plaintiffs to be the owners of the property described in the petition, and annulling and cancelling the tax adjudication of said property to Domingo Negrotto, Jr., of date 'June 20, 1886, as also all subsequent conveyances deriving from said adjudication, including the title set up by the defendant, Peter Gallagher, and authorizing the cancellation of the same from the conveyance office. It is further ordered that the defendant pay the costs in both courts.

Blanchard, J., dissents, holding the tax title sufficient.

On Application for Rehearing.

Breaux, J.

The application for rehearing is refused, but the decree heretofore handed down is amended so as to reserve to defendant the right to claim against plaintiffs, and against the property in question, reimbursement for taxes assessed against the property, not paid by X>laintiffs, but paid by defendant and the authors of his title.

Blanchard, J.,

dissents, holding the tax title sufficient in law and that the rehearing applied for should be granted.

Rehearing refused.


author: Niciiolls, C. J.

text:
    No. 13,477.
    Henry J. Bruning vs. E. H. Chadwick.
    Syllabus.
    Case determined on principles announced in Kelly vs. Chadwick, decided the same day.
    APPEAL from the Civil District Court, Parish oí Orleans— Ellis, J.

      Buck, Walshe <& Buck for Plaintiif, Appellant.

      George L. Bright and Edwin N. Whitiemore for Defendant, Appellee.
   The opinion of the court was delivered by

Niciiolls, C. J.

This case was not tried on the merits, but dismissed on exceptions, one of which put at issue the constitutionality and legality of the ordinance on which plaintiffs claim was predicated.

It has remained under advisement in our hands for a very considerable time, at the instance of appellee’s counsel, awaiting a decision by this court in the matter of Kelly vs. Chadwick, No. 13,505, of our docket, which case, counsel stated, involved the same issues.

We have this day announced a decision in that case, the principles of which control the present one.

The judgment appealed from is erroneous, and it is hereby annulled, avoided and reversed, and this cause remanded to the District Court for a trial on the merits. Costs of appeal to be paid by the appellee. Costs of the lower court to await the judgment in the District Court.

Rehearing refused.