text:
    No. 9831.
    The State ex rel. James S. Gaynor vs. S. Charles Young, Judge of Ninth Judicial District.
    1. A mandamus lies to compel tlie performance of duties purely ministerial in their nature and so clear and specific that no element of discretion is left in their performance.
    2. It will lie to judges of iuferior courts, in order to require th.em to do justice according to the powers of their oflice, whenever they have delated acting; and to prevent a denial of justice; and when the law has assigned no relief by the ordinary means; and when justice and reason require that some mode should exist of redressing a wrong or an abuse of any nature whatever.

      3. The writ will i-'sue to compel a district judge to grant an injunction restraining* a (ax collector from collecting* the tax of fifty cents per hale on cotton within the 3Tifth Levee District, authorized by Act 44 of 1886, until its alleged unconstitutioiiality can be judicially determined.

      k PPLICATION l'or Mandamus.

      L. E. Mason, Ph. Hough, Wrn. T'. Martin, downer & Conner and Elam c6 Luce, for the Relator.

      Steele, Garrett & Pagg for the Respondent.
   The opinion of the Court was delivered by

Watkins, J.

Relator applied to the respondent judge for an order granting a writ of injunction restraining and prohibiting the tax collector of the parish of Concordia, and the Board of Levee Commissioners for the Fifth Levee District, “from proceeding further in ilie collection and enforcement” of the tax of fifty cents per bale upon 350 bales of cotton by him produced on his plantation in that parish during the year 1886, and authorized to be assessed, levied and collected under and by virtue of Act 44 of 1886. His petition is annexed, in which he demauds an injunction upon the following grounds substantially, viz:

That the Board of Levee Commissioners of the Fifth Levee District “have levied a tax of five mills on the dollar on all the taxable property in said district, and a tax of five cents on each and every acre of land in said district, and fifty cents per bale on each and every bale of cotton in said district,” and particularly upon his 350 bales, and which alone amounts to $175; and he avers that, under the rules and regulations of said board, said tax is due, demandable and exigible; and that the tax collector is collecting, and attempting to collect and enforce, the said cotton tax upon his cotton; “and threatens to seize and sell, and will seize and sell, the said cotton * * * to enforce the payment of said tax; * * * and the said tax collector is authorized and commanded by the said levee board to enforce and collect the •same,” etc. He “avers that said T. K. Green, tax collector, has deputies stationed at all the points where plaintiff ships his cotton, to forbid and prevent plaintiff from shipping his said cotton, except on payment of said ?' * ® tax.”

He “avers that said Levee Board, under their rules and regulations, have prohibited and forbidden all steamboats, railroads and common carriers, under a severe penalty, to remove or transfer said cotton, “ * * except upon the payment of said * * S! cotton tax,”— all in pursuance of the provisions of Act 44 of 1886.

Petitioner avers that said act is unconstitutional, null and void, and the assessment of taxes thereunder is illegal, for various reasons, viz:

1st. That it is in violation of Article 46 of the Constitution, being a local or special statute having effect only in the parishes composing the Fifth Levee District, and no notice \va,s given as required by Article 48 of the Constitution.

2d. That said act violates Article 203 of the Constitution, which requires that all taxes assessed shall be equal and uniform — said cotton ta.x being neither equal nor uniform.

3d. That said aot authorizing the levy of said cotton tax was an interference with, and a regulation of, commerce between the States, and is in violation of, and in conflict with, the Constitution of the United States.

4th. That said act is in violation of Article 214 of the Constitution of the State, which limits taxation within a levee district, by the commissioners thereof, to five mills on the dollar of valuation — and that said cotton tax is in excess thereof.

5th. That said act embraces more than one object in its title, and is in violation of Article 29 of the Constitution.

This petition was accomx>auied by proper affidavit and suitable bond; yet the respondent judge declined to grant the order prayed for, in these words, viz:

“ I decline to order a writ of injunction to issue as applied for in the foregoing petition for the reason that I do not consider that the ewer-' menis of the petition authorize a writ of injunction to issue as prayed for.”

Relator further charges that not only has said judge refused to grant said injunction, “but he has instructed and commanded M. A. Joyce, clerk,” * * * in the absence of “himself from the parish, * * '* to deny and refuse to grant any writ of injunction or restraining order” to him; and has threatened to punish said clerk for contempt if lie did; and, that said clerk, acting under the respondent’s instructions, has refused to grant the same.

He alleges that said refusal and denial of said judge, under the circumstances detailed, is a denial of justice and operates a deprivation of his legal rights and works Mm great injury.

The respondent judge for answer admits this refusal to grant the injunction prayed for, and justifies his action on the grounds, viz :

1st. “ That no allegation in the petition presents that the Levee Board, one of the defendants in injunction, was domiciled in Concordia parish; nor was ihere an allegation that said hoard had committed any trespass in said parish, or that they had done any act therein for which any action for damages lay,” and that there was nothing to show “ that the court of that parish had jurisdiction.”

2d. That a writ of injunction 'does not lie in such a case, until a, seizure has been made, “ or at least, the allegations of the petition should show that the taxes are due, and steps have been taken to enforce payment.

3d. “ The allegations of plaintiff’s petition aro too vague and indefinite to authorize the issuance of the writ.” * * -t

4th. “ Instead of preserving the rights of all parties, the injunction, if granted, would practically annul, in advance of a judicial decree, a prohibitory law, and deprive the Levee Board of the security which the law gives them on the cotton.”

5th. “ As the ordinances of the Levee Board are not annexed to the petition, and are not referred to in such a way that the court can determine what regulations have been made for the collection of the tax, it is impossible to tell what the tax collector and the board are restrained from doing,” etc.

Respondent then concludes by saying : “ Respondent may have been of the opinion that act 44 of 1886, was entirely constitutional; if so, was he under any legal obligation to restrain its enforcement, because some litigant was willing to swear that, in his opinion, the law was unconstitutional ?”

C. P. 296 provides: “Injunction * * * is a mandate obtained from a court by a plaintiff, prohibiting one from doing an act which he contends may be injurious to him, or impair a right which he claims.”

It is not necessary, in order that he be entitled to the writ, that the act complained of be absolutely injurious per se, or that the right he claims shall be really and actually impaired.

C. P. 298.10 provides that “ the injunction must be granted * * * to stay execution * * * when the sheriff is proceeding on the execution contrary to some provision of law,” etc.

In Shannon vs. Lane, 33 Ann. 491, this court said: “Proceedings for the assessment and collection of taxes are assimilated, in many respects, to judicial proceedings, for which they are regarded as substitutes.

“The assessment, the record of the delinquent lists, and the tax collector’s sale are tlie respective equivalents of judgment, seizure and execution sale.”

Hence, this application for au injunction is not one addressed to the discretion of the judge to whom it was made.

Tn making a comparison between the writs of mandamus and injunction, it was very correctly said in High’s Extraordinary Legal Remedies: An injunction is. essentially a preventive remedy, man-damns a remedial one.

The former is usually employed to prevent future injury, the latter to redress past grievances.

The -functions of an injunction are to restrain motion, and enforce inaction, those of a mandamus-to set in motion and compel action.

In this sense an injunction may be regarded as a conservative remedy, mandamus as an active one.

The former preserves matters in statu quo, while the very object of the latter is to change the status of affairs, and to substitute action for inaction.” Sec. 6.

Mandamus is not necessarily conclusive as to the right in controversy. Ibid, sec. 11.

Mandamus will only lie to compel “ the performance of duties purely ministerial in their nature, and so clear and specific that no element of discretion is left in their performance; but that as to all acts or duties necessarily calling for the exercise of judgment and discretion, on the part of the officer or bod}-, at whose hands their performance is required, mandamus will not lie.” Ib., sec, 24.

Ministerial acts are those which are peremptory and absolute in their character. Ib., sec. 34.

Mandamus will lie “ to the judges of any inferior courts, commanding and requiring them to do justice according to the powers of their office whenever they have delayed acting.” Ib., sec. 148.

It only lies to compel the court to act; does not prescribe judgment. Ib., see. 149.

The object of this writ is “to prevent a denial of justice * * * and should, therefore, be issued in all cases where the law has assigned no relief by the ordinary means, and where justice and reason require that some mode should exist of redressing a wrong, or an abuse of any nature whatever.” C. P. 830.

Under the circumstances detailed in relator’s petition for injunction we think he was clearly entitled to the writ.

This case comes clearly within the principle announced in 29 Ann. 795. Beebe vs. G-uinault.

The respondent's objection that the relator’s petition for injunction did not disclose jurisdiction in his court, is untenable. The act in question confers upon the sheriff and ex-ojfficio tax collector power to collect said cotton tax in terms.

This tax is alleged to have been assessed by the Levee Board, and same was then in process of collection by the tax collector under instructions from the board, in the parish of Concordia, where the relator and his cotton then resided. The residence of the Board of Levee Commissioners, nor that of the members thereof, cannot control the jurisdiction. 23 Ann. 557, Simpson vs. Hope, Sheriff, aud other libe authorities.

It is, therefore, ordered, adjudged and decreed that the writ of mandamus be made peremptory, at the cost of respondents.


source: Caselaw Access Project

author: Bekmudez, C. J. ' Watkins, J.

license: Public Domain

text:
    No. 9798.
    The State of Louisiana vs. Joseph Stephens.
    An appeal returnable at New Orleans on the first Monday in November in a criminal case, which ought to have been made returnable at Shreveport at the opening of the term, will be dismissed, where it is apparent that the return day is suggested by appellant in the body of bis motion.
    It will not relieve the appellant even if the return day was suggested by the judge.
    The error of the judge was accepted and became that of the appellant, and is a fault imputable to him.
    APPEAL from the Criminal District Court for the Parish of Orleans. Homan, J.

      M. J. Owmingham, Attorney General, and Lionel Adams, District Attorney, for the State, Appellee :
    ]. An appeal in a criminal case will be dismissed, proprio motu when made returnable on appellant’s suggestion at an improper time and place. 38 Arm. 34, 42, 363; 36 Ann. 865 ; 35 Ann. 980; 32 Ann. 692, 542; 27 Ann. 540.

      2. “Violently” is equivalent to “forcible,” and conveys with technical accuracy the idea of force as involved in the crime of rape. Therefore, in an indictment for assault with intent to commit rape, the term “by force” is not sacramental, but may be supplied by the word “violently.” 32 Ann. 336: Archb. P. and P. (Pomeroy’s notes) p. 1011; ■\Vhar. Prec. of Indictment and Pleas, sec. 253 ; Stark C P. 429 ¡ 1 Mood. O. C. 179; 96 and P. 52J ; 1 Whart. Cr. Law, sec. 573; 12 S. and JR 69 • 8 Gray 859; S. P. 67; N. C. 55.
    3. No rule exacts from a judge tlie adoption of the very language suggested by counsel for the accused in instructions to the jury which the latter may seek from the court. Nothing more can be required of the trial judge than to embody in charge the substantial meaning of an established principle of law invoked by the accused. 35 Ann. 1160, 970, 1159,

      4. A judge not only may, but should, refuse to charge an abstract legal proposition, which has no bearing on the case on trial, whether the proposition be correct or incorrect. 35 Ann. 970, 774, 1043; 37 Ann. 443, 57G; 38 Ann. 41.
    The hill of exception must show that defendant asked for instructions which had a material bearing on the case, and that ho did not require the court to charge upon abstract principles of law. G Ann. 287; 12 Ann. 679; 22 Ann. 425; 34 Ann. 1084; 35 Ann. 770.

      <T. J. Foley for Defendant and Appellant.
   The opinion of the Court was delivered by

Bekmudez, C. J.

The Attorney General asks the dismissal of this appeal, because made returnable on an improper day, at the suggestion of appellant.

The sentence was passed on the 2d of September, and the appeal was moved for in writing on the 14th following, the court acting on the motion which merely asks for the appeal, suggesting the return day. It is not followed, as motions usually are, by the order of the court granting the appeal, returnable to this Court at the city of New Orleans on the first Monday of November, the day suggested in the body of the motion of appeal, under the signature of counsel for defendant.

The appeal ought to have been made returnable to this Court at Shreveport on the second Monday of October following, it being the place and time where this Court was first to hold sessiou after the passing of sentence. Act No. 30 of 1878, secs. 1, 3, 4; State vs. Laqué, 37 Ann. 853; State vs. Burns, 363.

Counsel for appellant offered to file an affidavit to show that it was at the suggestion of the judge that the appeal moved for was made returnable at Now Orleans.

He was not permitted to do so, for the reason that, conceding the fact, the suggestion instead of being declined was accepted, and thus the error of the judge became that of the appellant, to whom it is imputable.

It is. therefore ordered that the appeal herein he dismissed with costs.

Fenner, J., dissents.

On Application por Rehearing.

' Watkins, J.

This application is made on the sole ground that, in dismissing the appeal, the opinion of the Court misinterpreted Act 30 of 1878, section 4 of which is, as appellant’s counsel insists, as follows, to-wit:

“That all such appeals shall be made returnable to the Supreme Court within ten days after granting the order of appeal, whenever the said Court may he in session on the return day thereof.”

He argues therefrom that, inasmuch as the order of appeal under consideration was granted on the 14th of September, 1886, at a time when this Court was not in session, the same was properly made returnable to this Court at its session on the first Monday in November, in this city, as it was.

This question has never been, in terms, decided; but it has, frequently, in effect.

The word “whenever,” as employed in the Act, is meaningless, and destroys its sense.

Researches have clearly satisfied us that the word used in the text of the original act is wherever.

In construing that statute, as printed in the volume published, this Court has invariably given it effect as written in the text.

In cases quite similar to this one, it has been held that appeals should have been made returnable to this Court at its term first convening thereafter. That ruling is in strict keeping with the spirit of the law, and in harmony with the' evident intention of the legislature.

Rehearing refused.


author: Pochj5, J.

text:
    No. 9746.
    M. DeLucas vs. New Orleans and Carrollton Railroad Company.
    Railroad.companies, as public oarriers, have the right to eject passengers from their cars for non-compliance with their reasonable rules.
    The rules of a city railroad company, acting under a contract with the city, which requires the company to carry passengers over two sections of its line for one fare, which requires such passenger to keep and show, undetached by him, a coupon ticket, as a voucher of his right to continue on the car beyond a given point, are reasonable in law.
    Any passenger refusing to comply with said rules may be ejected from the car.
    APPEAL from the Civil District Court for the Parish of Orleaus. Houston, J.

      JR. H. Downing and F. Kerman, for Plaintiff aud Appellant.

      John M. Bonner, for Defendant and Appellee :
    1. Carriers of passengers liavo the right to make reasonable rules and regulations for the management of their business.
    2. The rule, requiring the blue coupon to remain on the strip of tickets until detached-by the collector at Napoleon Avenue, under the double system of fare and tjbo changing of

      all Lhe drivers, where the second fare is collected, is not only reasonable but is absolutely necessary to secure the collection of the second fare.
    3. Passengers are bound to observe the reasonable rules and regulations of the earner, and should be expelled from the car for disobedience of them. Hutchinson on Carriers, §§ 569 to 573, 587, 588, 590 : 71 Pa. St. 432; 56 H. Y. 300: 15 H, Y. 464; 51 H. Y. 105; 42 Am. R. 669; 34 Am. R. 277; 35 Am. R. 278; C. L. J.( vol. 13, p. 394 ; 135 Masa. 407; Wood on Railways, p. 1429; Thompson on Carriers of Paasongers, pp. 340. 375; 33 Howard Pr. R., p. 327.
    4. When expulsion is wrongful and unaccompanied with aggravating circumstances, the measure of damages is tbe actual loss sustained by the expulsion. Borer on R. R., vol. 2, p. 865, § 15 ; Wood on Railways, pp. 1433, 1439; 23 Ohio St.s p. 21; 29 Ohio St. 129, 134 : 75 111., 125, 132; 4 Wal. 605; 15 H. Y. 464; 56 H. Y. 300.
    This is an aotion brought by the plaintiff against the defendant to recover the sum of 85000 as damages for being ejected from one of defendant’s cars.
    The plaintiff obtained three small verdicts from three different juries, before tbe lower court, each of which was promptly set aside by tbe trial judge.
    The case was then submitted to the court on the evidence and judgment was rendered in favor of defendant.
    Prom that judgment the plaintiff prosecutes this appeal.
   The opinion of the Court was delivered by

Pochj5, J.

Plaintiff seeks to recover damages in tbe sum of five thousand dollars against the defendant, for having been illegally and violently ejected by one of the company’s employees from one of its cars on which he was a passenger.

He prosecutes this appeal from an adverse judgment. Verdicts rendered in his favor by two different juries liad been set aside by the judge of the district court, who was finally authorized by consent to try the case without a jury.

It appears, from tbe record, that under a contract with the city of New Orleans, the defendant company obtained its franchise to run passenger cars from Canal street to Carrollton, formerly a suburban village, now a part of the city of New Orleans — a distance of six miles. The run between Canal street and Napoleon Avenue is made by cars propelled by mule or horse power, and between Carrollton and Napoleon avenue the cars are run by steam. At the avenue, the drivers who have come from Canal street go no further and return; the same change being made with regard to the engineers in charge of the cars on the upper section of the line.

In the contract the fare is fixed at five cents between Canal and Na-, poleon avenue, or any intervening point, and the same fare was required between Carrollton and the avenue or intervening points. But a concession was made in favor of actual residents of the city above Napoleon avenue, who had the privilege of making the whole run of the line for one fare, or five cents, provided they agreed to purchase not less than ten tickets at a time, at the price of fifty cents for the ten.

In carrying out that part of its contract the company issued bunches of tickets of ten each, to be sold only to actual residents above Napoleon avenue, every two coupons of which were intended to represent a ride on the cars above and below the avenue, either from Carrollton to any point below, or from Canal to any point above the avenue.

It then adopted and gave publication of, rules to regulate the manner of using such tickets — of which there were ten red and ten blue in each bunch, and perforated so as to be detached without effort and without mutilating either the detached or remaining tickets.

Under the rules of the company the red ticket, which was good for the first part of the ride either up from Canal or down from Carroll-ton, or intervening points, had to be detached by the passenger and by him deposited in the fare box. At Napoleon avenue there was a collector to receive all fares on every car, either up or down, and to him the blue ticket, corresponding to the red which had been put in the box by the passenger, was good for the balance of the ride ; but, under the rules, and according to a notice printed on the ticket itself, the passenger was not allowed to detach it from the bunch, as it was not good if detached, by any one but the collector.

The company had given stringent orders to their collectors to vigorously enforce this rule, and to carry no passengers who would refuse to comply therewith. The system went into operation on the 1st of November, 1882, the rules, printed on paste-boards, had been posted at every station on the road and in every car, and had been published in all the daily papers in the city, for ten days before they were enforced. It is not denied that they were fully known to the plaintiff in this case.

Now it appears that on the 11th of November following, plaintiff, who'resided above Napoleon avenue, entered one of the defendant’s cars at a point above the avenue, on his way down to Canal street, and deposited one of the red tickets, hereinabove described, in the fare box. On reaching the avenue station, and the car being about to leave on the down trip, he was called on for his fare by one of the collectors, to whom he tendered a detached blue ticket.

This was refused by the collector with the information that under-the rules it was not good unless detached by the collector himself, and that the party should either hand to the company’s agent a bunch of tickets from which he could himself tear out a blue ticket, or pay the regular fare, either in currency or by means of a red ticket. On the party’s refusal to comply with either of the designated modes, he was ejected from the car by the collector in charge, with the assistance of another collector, whom the former had called to Ins aid. The removal of plaintiff from the car was accomplished without violence and without unnecessary force.

The evidence is conflicting on several important points of the foregoing statement, but we consider the facts as we have related them to be established by the preponderance of the testimony in the record, after a close scrutiny and a careful analysis thereof,

Under these facts, the law of the case involves two propositions:

1st. Have public carriers the legal right to eject passengers from their cars for non-compliance with their rules?

2d. Were the rules of the defendant company now under discussion reasonable?

T.

Although public carriers have the duty of transporting all passengers for reasonable compensation, they are not thereby stripped of any of their rights of property and ownership over the appliances which they use for the transportation of such passengers.

They have, in common with all other parties, the right to enforce the performance of the contracts which they make with persons, looking to the transportation of such persons, and to remove any passenger who may refuse to comply with the stipulations of the contract.

A person who refuses to present or show his ticket, or to pay his fare when called on to do so, on a train or car, becomes a trespasser, and thus becomes liable to ejection exactly as any other trespasser could be expelled from premises which he had illegally entered.

Under certain circumstances it is not only the right, but the clear duty, of a public carrier as an act of justice to its other passengers, and under its responsibility for the safe and speedy transportation of its passengers, to eject or remove a recalcitrant or obstreperous person who wantonly refuses to comply with the reasonable and necessary rules adopted by the carrier. The indulged disorder or refusal of one passenger would engender the same conduct in others, and soon the travel would become neither comfortable nor safe.

A party who refuses to comply with the mode of paying his fare as agreed upon between himself and the carrier is under the same condition of one who refuses absolutely to pajr any fare at all; and hence, the only alternative is to carry him for nothing, or to eject him if he refuses to leave when requested so to do. No one has the right to exact transportation of a public carrier without compensation.

II.

The question now recurs to the inquiry whether the rules of the defendant company wore reasonable.

Under the contract between the company and the city, stipulating an advantageous exception in favor of actual residents above Napoleon avenue, the railroad company had the undoubted right to devise and adopt some means by which they could restrict the privilege thus contemplated to the persons for whom it had been intended. Now, as the employees in charge of cars below Napoleon avenue were not the same who had charge of the cars on the upper section of the line, it strikes us that the means adopted and hereinabove described were quite reasonable and exposed the jJarties entitled to the privilege to no serious inconvenience.

We must note that the condition of buying not less than ten tickets at a time by that class of persons was exacted under the terms of the contract by the city authorities, and for reasons which are very apparent.

Under the system adopted, the real consideration of the ride on the part of the residents above Napoleon avenue — either on an up or down trip — was the red ticket, and the blue ticket forming a coupon therewith and attached thereto was simply a voucher of the right of the party to continue his ride on the car beyond Napoleon avenue, which was the geographical centre of the contract. Now, in order to prevent either fraud or imposition on the company, either by imitations or by persons who could pick up the blue tickets and had not held the red one, which was the principal consideration of the contract, and so expressed on its face, it was certainly reasonable to adopt the'rule that to be used as a voucher, the blue ticket should remain attached to the bunch.until it was torn therefrom by the agent or collector. Hence, we conclude that the rules of the companjr were reasonable, and that a non-compliance therewith by a passenger exposed him to be legally ejected from the car.

These views find sanction not only in reason, but are amply supported by most respectable authorities. Hutchinson on Carriers, secs. 569, 571, 572, 563, 587, 588, 590; Wood’s Railway Law, p. 1429; Louisville and Nashville R. R. Co. vs. Harris, 42 American Reports, 669; Howard’s Practice Reports, vol. 33, p. 327; Walker vs. Dry Dock, etc., Company, 15 New York Rep. 455; Hibbard vs. New York and Erie, 51 New York Rep. 105; Hamilton vs. New York Central R. R. Co., 56 New York Rep. 300; Townsend vs. New York Central R. R. Co.

Now, in the instant case, cither the plaintiff had bought a buncli of tickets and had deposited a. red one in the box, or be held no bunch. If he had, it was his duty to present the bunch to the collector so that the latter could detach the blue ticket, and Ms non-compliance therewith was a violation of bis contract with the carrier which exposed him to ejection. If he bad not owned a bunch of tickets from which be bad detached the red ticket, then the blue ticket which he tendered to the collector was not the required voucher under the contract and under the rules — in that event be was simply an-intruder on the cars, and Ms ejection therefrom was justifiable in law.

In either event the company has been guilty of no wrong towards him, and hence it cannot be held in damages.

Judgment affirmed.


author: Todd, J.

text:
    No. 9731.
    Mrs. B. Mason et al. vs. E. L. Bemiss.
    When an assessor finds a person in the quiet possession of property, as owner under an apparent title purporting to be derived from a judicial sale, he is justified in assessing the property in the name of the person thus holding.
    He is not required to examine the court records and investigate the proceedings pertaining to the title claimed and determine the question of its validity before acting.
    When at a succession sale the widow in community and the tutrix of the minor heirs (sole heirs) purchases a piece of property that belonged fo the community, in order to receive a valid title under the adjudication, sbe is not compelled to pay over the amount of her bid, provided she is properly charged with it in the account of the administrator and the money is not needed to pay the debts, and where it is shown that after the payment of the debts a balance romains, which is paid over to her by the agent or the one entitled to receive it.
    A PPEAL from the Civil District Court for the Parish of Orleans. xJl Bightor, J.
    IF. 8. Benedict and II. 0. Gage for Plaintiffs and Appellees:
    1. Title to real estate can neither be created or destroyed by parol evidence. 4 Martin, 475; 9 Hob, 414; 4 Ann. 229; 12 Ann. 54; 26 Ann. 445; 27 Ann. 198.
    2. An assessment of property is similar to a judgment, and an assessment in the name of a wrong party not the owner of the property is equivalent to a judgment without citation, and any sale or execution under either is an absolute nullity and confers no right whatever upon the purchaser thereon. 24 Ann. 251 $ 32 Ann. 236, 925; 36 Ann. 392.
    3. An assessment in a wrong name is equivalent to a judgment without a citation. It is an absolute nullity. 30 Ann, 295, 871; 32 Ann. 526 ; 29 Ann. 508; 32 Ann. 912; 28 Ann. 537; 31 Ann. 107, 123; 32 Ann. 526; 30 Ann. 175, 626, 959, 870; 29 Ann. 416, 112, 884; 33 Ann.442; 14Ann.200; 12 Ann.748; 11 Ann. 214.

      4. Wliere tlie assessment and tax sale tlioronnder are absolutely null and void, the tender of tlie interest, costs and penalties is not necessary before bringing any suit. 33 Ann. 529; 32 Ann. 926,1292 ; 34 Ann. 706; 37 Ann. 356.

      Nioholls <& Carroll for Defendant and Appellant:
    No tax sale con be annulled until the price paid, with ten per cent interest, be tendered to the purchaser. Const, art. 210; 28 Ann. 651; 24 Ann. 524 ; 33 Ann. 435.
    An adjudication at prohate sale shifts the title. C.C.2G08; 2 L. 501; C.C.2623; 1 Ann.201.
    "Where property is adjudicated to the surviving widow, and her bid figures in the administrator’s account as cash, and, not being needed to settle the succession, the money is retained hyher as surviving widow and usufructuary or natural tutrix — she and the administrator simply passing receipts — this transaction discharges the administrator, the title passes to the widow, and the recourse of the heirs must be against her in the 0 final settlement. They cannot ignore the acts done by the widow or the adjudication which shifted the title. 12 Ann. 337; 30 Ann. 120; 24 Ann. 336.
    A purchaser at judicial sale acquires a vested right, which is not divested until there bo a final judgment ordering a resalo at his risk. 13 Ann. 332; 23 Ann. 466.
    If property be sold for taxes, and the owners do not redeem within one year, the purchaser acquires a complete title. Const, art. 210.
    In a petitory action, plaintiff must win on the strength of his own, not on the weakness of his adversary’s title. 10 M. 293; 12 It. 46; 11 Ann. 546; 22 Ann. 57.
    Plaintiffs can never be granted more than they ask. 4 M. 289; 2 N. S. 241; 10 Ann. 487; 6 M. 525; 1 Hen., p. 731; Louquo, p. 338, Nos. 2 and 3.
    The purchaser at a tax sale, made regularly, is a purchaser in good faith, and even if his deed be set aside, is entitled to rents up to judicial demand, and to be reimbursed for improvements and taxes. 35 Ann. 1086; 37 Ann. 417; 38 Ann. 216; Sec. 47, Act 77 of 1880.
   The opinion of the Court was delivered by

Todd, J.

This is a suit by the widow and heirs of Benjamin Mason, deceased, to recover certain immovable property described in the petition, and to annul a tax sale to the defendant in possession.

Benjamin Mason died on the 1st of May, 1860. In December of the same year the real estate of the succession was sold on the application of the administrator, to pay debts.

The property in dispute was part of his estate, and which said deceased owned at the time of his death.

It was subsequently sold to pay the taxes owing thereon, and at the sale, on the 29th of March, 1884, it was adjudicated to the defendant.

The main ground of nullity charged in the petition against this tax sale is that the property was not assessed in the name of the true owner — alleged to be the succession of Benjamin Mason — but in the name of Mrs. B. Mason.

Other nullities were set up in the petition against the tax sale, but they all seem to be abandoned except the one above mentioned — the illegal assessment.

The .answer avers that the assessment was correct, that Mrs. B. Mason was the owner of the property and in possession thereof by virtue of its adjudication to her at succession sale in 1860, as above-mentioned.

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

We find that Mrs. Mason was in possession of this property as owner from the date of the probate sale, in 1860, till the tax sale, in 1884. It is true that no deed or proces verbal of sale is found in the record, conveying the title to her, but an examination of the proceedings in the administration of the succession of Benjamin Mason satisfies us that such adjudication did take place.

This property appears on the inventory of the succession.

We find, also, an order of court, directing the sale of all the real estate belonging to the succession.

The account of the administrator, filed subsequently, shows that the sale was made. This account further states that a part of the real estate was sold for cash : that the price was not paid in, and he credits himself with the amount of same — $800.

Next appears a written acknowldgement from the Widow Mason, as natural tutrix, that she had not paid in the $800 — her bid on the property adjudicated to her at probate sale, together with a receipt to the administrator for the balance in his hands derived from the sale of the property after payment of the debts.

The account further shows that the debts of the succession were paid in full without this $800, and that there was a balance in his hands — being the same balance receipted for by the surviving widow and tutrix.

We find in the record the deed to the other lands sold at the same time to the other purchasers at said sale, and these deeds embrace all the lands belonging to the succession, and described in the inventory, except the property is dispute in this suit. All the real estate having been disposed of at said sale, as stated, and the deeds in the record embracing all the real estate inventoried, except this particular piece in controversy, and a part of this real estate having- been proved by the administrator’s account and Mrs. Mason’s acknowledgment and receipt to have heen adjudicated to her, it necessarily results that it could have been no other than the identical property in suit that was bought by Mrs. Mason — property which, as before stated, she held possession of as owner from the 29th of March, 1861, date of succession sale, till it was sold for taxes in 1884.

It is, however, urged that the fact that the price of adjudication was not paid by Mrs. Mason, of itself vacated or avoided tbe sale, and that the title to the property never passed to the adjndicatee, hut remained in the succession.

It might be a sufficient answer to all this to say that, as the question at issue is not the validity of a succession sale, as between the purchaser at such sale and the heirs of the succession under proper pleadings, hut only the question of the legality of an assessment, it is not required of the officer charged with the assessment, that before making it, he should constitute himself a judge of the validity or invalidity of the judicial proceeding upon which the title to the property purports to rest, hut that the fact of possession for many years as owner, under an adjudication, would alone suffice to guide and determine him in making the assessment as relates to the ownership of the same.

Be tin's as it may, however, we have no hesitation in saying that where the widow in community makes a purchase at probate sale of community property — being at the same time usufructuary and tutrix of the minor heirs of the succession — she is not required to pay over the price of the adjudication where the same is not needed to discharge the debts of the succession. In such case she is entitled to withhold the price. It would certainly be a vain thing and a meaningless formality for her to pay over the amount to the administrator and then take it hack again. 12 Ann. 337; 24 Ann. 336; 30 Ann. 120; Cochran vs. Violett, recently decided and not yet reported, and authorities therein cited.

In this instance, as before stated, the price at which the property was adjudicated to the surviving widow, was not needed to pay debts, and was properly retained by her.

It sufficed that the proper receipts passed between her and the succession’s representative; which was done.

These considerations lead us to the conclusion that the judgment appealed from was erroneous.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court he annulled, avoided and reversed, and that plaintiffs’ demand be rejected, with costs in both courts.


author: Fenner, J.

text:
    No. 9717.
    Samuel Flower, Administrator, etc., vs. Elizabeth Jackson Noble, Wife, etc.
    A decree of this Court reversing a judgment of the district court rejecting all evidence in support of a party’s demand, on the ground that his petition set forth no cause of action, has only tho effect of deciding that if all the averments of said petition are proved, the party is entitled to some relief.
    Where, after trial on the merits, certain important allegations are not proved, the case is in no manner affected by our former decree, but stands on its intrinsic merits
    Where defendant in executory process enjoins the enforcement or negotiable mortgage notes held by a third person who acquired before maturity, on the grounds of payment and compensation between the maker and the original payee of the notes, alleging simulation and fraud in the title of the transferee, failure to establish such simulation and fraud destroys the foundation of the case.
    It is an elementary principle of the law of negotiable instruments that such equities subsisting between the original parties cannot be set up against a bona fide transferee for value before maturity,
    Where the notes were taken in payment of a debt, knowledge by tbe transí eree of the actual insolvency of the transferor, even if proved, could give rise to no relief, except under a revocatory action, of which the petition in this case wants tbe essential features in the allegations, the prayer and in the parties made.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      Nicholls (& Carroll for Plaintiff and Appellant.

      Geo. L. Bright and F. Kernan for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

Tbe plaintiff, as holder of certain negotiable promissory notes executed by defendant and secured by special mortgage, instituted executory proceedings for tbe seizure and sale of the property subject to said mortgage.

The defendant applied for an injunction to restrain the seizure and sale of her property, in a petition and supplemental petition, the substantial allegations of which, so far as essential for our consideration, are as follows:

1st. That defendant was the holder of a policy of life insurance in “The Life Association of America,” a corporation created under the laws of Missouri, and domiciled in said State, by the terms of which it agreed to pay to her the sum of $10,000 sixty days after the death of her husband, whose life was insured for her benefit, in consideration of payment to tbe company of a stipulated annual premium.

2d. That premiums had been paid to said company to the amount of $3539.50.

3d. That on November 10th, 1879, tbe said corporation was judicially declared insolvent by tbe decree of a competent court of Missouri, by the effect of which it became unable to comply with its own agreement under the policy, and became liable to defendant in tbe amount of tbe value of said policy at that date.

4th. That although its insolvency was judicially declared only on November 10,1879, the corporation was actually insolvent for some time prior thereto, and specially on the 14th of October, 1879, when plaintiff acquired the notes, which insolvency was well known to said plaintiff.

5th. That on October 2, 1879, she bought the property herein involved from the Life Association of America, and gave the three mortgage notes sued on, which were payable in one, two and three years from said date.

6th. That at the time when said association became insolvent, it was the holder of said promissory notes, and that they thereby became extinguished by payment and compensation. .

7th. That after said insolvency and extinguishment of said notes, some person pretending to represent the association “ illegally, fraudulently and without consideration” transferred said notes to the plaintiff herein.

8th. That plaintiff tcis not and never was the owner of the notes sued on, and that his possession thereof is fraudulent and simulated.”

9th. That John R. Fell, who made the pretended transfer to the' plaintiff, had no authority to do so, and that it was done to defraud her, and was an illegal and fraudulent attempt to dispose of the assets of an insolvent corporation to the injury of its creditors, and especially of herself.

On these allegations she prayed for an injunction and for a decree that the said notes and mortgage be cancelled, annulled and surrendered to her.

The case was here once before on appeal from a judgment in favor of the plaintiff, based on a ruling of the district judge excluding all evidence in support of defendant’s demand, on the ground substantially that her allegations, even if proved, would support no relief in her favor.

In a very guarded opinion, we reversed this judgment, saying in conclusion, it may well be that plaintiff may fail in her proof, but it does seem that if she can establish satisfactorily all her averments, she should' be entitled under the pleadings, as they exist, to some relief.” Noble vs. Flower, 36 Ann. 737.

The case having been remanded after full hearing in the lower court, now returns to us in an appeal from the verdict of a jury and judgment based thereon in favor of defendant.

After a careful review of the evidence, we conclude that not only has defendant failed to establish satisfactorily all her averments,” but that the only ones which could give her the slightest standing in court are directly and positively negatived.

That evidence clearly establishes that plaintiff acquired the notes, which were negotiable, before maturity; that he acquired them from the company, which owned them, before any judicial declaration of insolvency or restraint of its power to dispose of its property; that he received them in partial settlement of a loss arising under a policy of insurance of the life of G-en. John B. Hood, which had matured by his death; that this was so perfect a consideration of the transfer of the notes that, but for that settlement, it would have been paid in full and in cash, even after the judicial insolvency, by the receiver of the corporation, as testified by the first receiver — defendant’s own witness; that the plaintiff, when he received the notes, had no knowledge of the actual insolvency of the company, even if such knowledge could affect him in such an action as the present; that, far from being a party to defraud Mrs. Noble, he was ignorant that she was a policy holder of the corporation, or in any manner a creditor thereof.

The title of plaintiff to the notes being thus cleansed from the stains of fraud and simulation, which defendant sought to impress upon it, we are aware of no principle of law under which he can be affected by any equities subsisting between his transferror, the association, and the defendant.

The particular equity of compensation, which defendant invokes, even if it were otherwise applicable, which we are far from holding, is defeated by the familiar principles of the law-merchant governing negotiable instruments, and equally by the rule laid down in the Code itself, which declares that compensation cannot take place to the prejudice of rights acquired by a third person.” Art. 2215.

Defendant’s claim against the association only ripened into an actionable right on the civil death of the corporation, which resulted from the decree declaring its insolvency and dissolution rendered on November 10th, .1879, as we held in the case of Life Association vs. Levy, 33 Ann. 1203. Plaintiff’s rights to the notes had been acquired prior to that time and, under the article of the Code quoted, could not be prejudiced by any claim of compensation.

It is, moreover, an elementary principle of the law of negotiable instruments, that while, as between the maker and the original payee or the transferree of the latter after maturity, the maker may set up equities between himself and the original payee, such as want or failure of consideration, payment, compensation, compromise and the-like, lie can make none of these defenses against a bona fide trausferree for value before maturity.

Finding that such is clearly the character of plaintiff’s title to tlio notes, it destroys the essential foundation of defendant’s case.

Even if, at the time of receiving the notes, plaintiff had known of the insolvency of the association, which the evidence disproves, that would furnish no ground of relief, except in the form of a revocatory action, of which the proceeding herein presents no feature, and which, besides, would necessarily fall for want of proper parties.

It is, therefore, ordered, adjudged and decreed that the verdict and judgment herein appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that judgment in favor of plaintiff, Flower, administrator, dissolving the injunction herein issued, and dismissing the demand of Mrs. Noble, at her cost in both courts.


author: Watkins, J.' Fenner, J. Todd, J.

text:
    No. 9810.
    The State of Louisiana vs. Bill Nelson.
    X. A razor is not a dangerous weapon within the intendment of Revised Statutes, see. 832.
    2. An indictment hicli charges that the accused “did have, and carry, concealed on or about his person, a certain dangerous weapon called a razor,” is bad.
    3. Whether the instrument named in the indictment as a “dangerous weapon” is one within the meaning of the statute, the trial judge must decide, on hearing a motion to quash or one in arrest of judgment, as upon every other essential ingredient of an indictment
    APPEAL from the Tenth District Court, Parish of Red River. Hall, J.

      M. J. Cunningham, Attorney General, and J. 0. Pugh, District Attorney, for the State, Appellee.

      Pierson & Hull for Defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.'

The accused appeals from a judgment of conviction under Revised Statutes, sec. 982, which declares that “whoever shall carry any weapon, or weapons, concealed on or about his person, such ’ as bowie-knives, pistols, dirks, or any other dangerous weapon, shall, on conviction,” etc.

The indictment charges that the accused “did have and carry concealed, on or about his person, a certain dangerous weapon called a razor, contrary to the form of the statute,” etc.

lie waived trial by jury, and elected to be tried by the judge.

In limine his counsel filed a motion to quash the indictment on the ■ grounds, viz:

1st, That carrying a razor is not carrying a concealed weapon.

2d. That a razor is not a dangerous weapon within the meaning of the law.

It seems the motion to quash was tried with the merits and was overruled, and a judgment of guilty entered.

At this stage of proceedings the counsel for the accused filed a motion in arrest of judgment, in which lie assigns as error apparent upon the face of the record the defects mentioned in his motion to qnasli, and the overruling of the same by the trial judge.

The record contains no part of the evidence adduced on the trial; and no bill of exceptions.

The only question, therefore, is whether defendant’s motion to quash the indictment was well taken, or his motion in arrest should have been sustained.

It presents a matter of substance material to be averred in the indictment.

Is a razor a weapon within the intendment of the statute under which defendant was indicted?

The gravámen of the statute is the punishment of pel,úíns who carry “ weapons” concealed on or about their persons.

The statute instances the following, viz: suchas bowie-knives, pistols and dirks. The sentence then concludes with the qualifying phrase, “or other dangerous weapons.”

It is plain that the carrying of a weapon concealed is the crime the statute contemplated. To bring the accused within its provisions, the indictment must charge that he had carried concealed on or about his person a weapon of the particular description enumerated, or some “other dangerous weapon.”

In the judge’s opinion he says: “ While the razor was not originally-intended by the inventor and maker as a dangerous weapon, it has become one in common practice, and is more frequently carried and used as such than the bowie-knife, the dirk, or any other dangerous weapon, except the faithful revolver;” and, after citing a few authorities, concludes “that a razor, therefore, if carried as a weapon, is within the prohibition of the statute; * * * and while a razor may be used for other purposes, it is incumbent upon the State to show in the evidence that it was carried as a weapon.

“Any other view would defeat the purpose and intent of the law; for if a person can carry a razor concealed on or about liis person, as a weapon, he can carry a butcher-knife, carving-knife, or any other instrument of domestic use, however dangerous and deadly its character, on or about his person.”

In our opinion the meaning of the statute, unmistakably, is the carrying of a weapon eo nomine, and concealed. It must be a dangerous weapon per se — such as a bowie-knife, pistol, or dirk; and this must affirmatively appear upon the face of the indictment itself.

If it does not it is bad, and cannot support a conviction.

We do not regard the particular purpose to which the instrument is applied, as exercising control over its character as a weapon.

Whether the instrument named is a weapon the trial judge should decide, on a motion to quash, as upon every other essential ingredient of an indictment.

This question being determined, the charge against the accused goes to the jury upon the evidence adduced under it. To decide otherwise would be to hold that the jury were competent to pass upon the validity of the indictment.

This must be valid in its incipiency.

It must set out the crime with which the accused is charged with precision and certainty. This cannot be supplied by proof, nor eked out by inference.

A razor is an instrument or implement appertaining to the toilet, or shop. It has a well-known and specific use to which it is ordinarily applied. It is not known, or usually sold in market as a weapon. It may be quite as easily and conveniently carried in the pocket as a penknife, and when thus carried is effectually concealed from public open view. Under such circumstances the concealment of one would be just as pernicious as the other.

Conceding, for the argument, the full extent of the vicious habit of carrying a razor as a concealed weapon, mentioned by the judge, the cause of the State is not improved.

This habit may be one of recent origin, confined to a limited extent of country, and, perhaps, one that is practiced by a certain class of citizens.

A statute prevails throughout the State, and includes within its provisions every individual inhabitant thereof. It would seem to follow, as a logical sequence of this argument that, in the'parish of Red River the carrying of a razor concealed, where this local habit, or usage prevailed, would be thus brought within the denunciation of the statute, while the carrying of a razor concealed by an inhabitant of some other parish of the State, where no such custom prevailed, would not.

It is argued that this court has placed an interpretation upon the words a dangerous weapon,” which supports the theory of the State.

In construing sec. 790 Kev. Stats., which declares that if any person lying in wait, or in perpetration, or attempt to perpetrate, any arson, etc., * * * shall shoot, stab, or thrust any person with a dangerous weapon, etc.,” this court said, in State vs. Lowry, 33 Ann. 1224: “ Prom this it appears, and we hold, that 1 thrusting’ a person may well include thrusting with 1an iron bolt, rod, or pin,’ whether tlie point be sharj) or not.

“ Such an instrument may well be a dangerous weapon,” etc.

Conceding the correctness of that decision — and we do — does it follow that the carrying of “ an iron bolt, rod or pin ” concealed on or about the person, is the carrying of a dangerous weapon, in the sense of R. S., sec. 932

If so, then the carnjmg concealed on or about one’s person of any article which might be used as a dangerous weapon in a combat, whether it be an instrument or uot — a stone, a bat, a ball, a pocketknife, a rod, a bolt, or a bar — anything with which injury might be inflicted, would become “ a dangerous weapon j” and any person carrying any one of these articles concealed on or about his person — not “in open public view” — would become eo instanti, liable to prosecution therefor.

The law-maker, in our view, intended something more reasonable, and only denounced as a crime the carrying concealed dangerous weapons eo nomine, and not such articles, or instruments as might be used in an assault.

In the brief of the Attorney General we find the following paragraph, viz:

“ The statement that carrying of a razor, concealed as a weapon, is a carrying of concealed weapons is calculated to direct the mind to the fact and the manner of the concealment, rather than to the intent and purpose with which is carried.”

Again : “ The statement that the carrying of a razor as a weapon is more correct, and directs the mind to the intent cmd.purpose with which the razor is carried.”

A ready answer to those suggestions is that neither “ statement ” conforms to the statute, which declares that “ whosoever shall carry any weapon or weapons concealed.”

The gist of the question is the carrying of a weapon concealed, and not the carrying of an instrument “ concealed as a weapon,” or the carrying of an instrument “ as a loeapon concealed.”

The weapon, in the words of the statute, must be such as Bowie-knives, pistols, dirks, or other dangerous weapon.'1'1

31 Ann. 849, State vs. Martin, in which the court says: “ To constitute the crime charged it suffices that a dangerous weapon be carried on about the person; and it matters not that it be so carried xoith or without any actual intent.”

The definition quoted in the brief of the Attorney General, from Worcester, is conclusive against the State. It is : “ Instruments made on purpose to fight with are called arms, or iveapons; such as are accidentally employed to fight with, weapons.”

A legitimate deduction from this is that a razor belongs to the latter class, i. e., such as are accidentally employed to fight with, and not to the class of instruments “ made on purpose to fight with.”

The razor might be a weapon if accidentally or actually employed to fight with — as in State vs. Lowry — but it certainly is not such a dangerous weapon as is contemplated by the statute.

The motion to quash, or the motion made to arrest the judgment should have been sustained.

It is, therefore, ordered, adjudged and decreed that the judgment and sentence pronounced thereunder, be annulled and set aside; and it is further ordered, adjudged and decreed that the indictment be quashed and the accused discharged.

Dissenting Opinion.

Fenner, J.

I think the court places too narrow a construction upon the statute.

It prohibits and punishes the carrying of “ a weapon or weapons concealed on or about one’s person, such as pistols, Bowie-knives and dirks, or any other dangerous weapon.” The court’s construction confines the prohibition to weapons “suchas pistols, Bowie-knives and dirks,” and nullifies the last clause entirely.

But the statute obviously goes further, and, after prohibiting the carrying of weapons, “ such as pistols, Bowie-knives and dirks,” extends the prohibition to “ any other dangerous weapon ” whatever.

Such construction not only renders objectless and meaningless the last words of the statute, but entirely emasculates its spirit and force. For what is the use of prohibiting the carrying of Bowie-knives, and dirks, if butcher-knives and carving-knives, in every way equivalent, may be carried with impunity 1

Butcher-knives, carving-knives and razors are doubtless made for innocent and lawful use ; but sucli use does not involve or suggest the necessity of carrying them concealed about the person. They are dangerous weapons, as has been frequently held under other statutes, and, when so carried, there is nothing in their nature or use which suggests any other purpose, ordinarily, than to carry them as weapons, and as dangerous weapons, within the statutory prohibition.

The records of our criminal courts show that these instruments, and especially the razor, are frequently so carried and used to effective purpose. The decision suggests to persons anxious to pursue the bad habit, which the law seeks to cure, a way of evading the law so simple and easy as to rob the law itself of all effect.

I dissent from the opinion and decree.

I concur in this opinion

Todd, J.


author: Poché, J.

text:
    No. 9784.
    In the Matter of the Estate of Antoine Romero.—On Opposition to Tablead of Administrator.
    Claims against a succession, although recognizod by the administrator on his tableau as debts of the succession, must be proved up when opposed by heirs and creditors, in default of which they will be rejected.
    Promissory notes executed by the deceased and prescribed on their face before they are placed on the tableau will be rejected as proscribed, on the opposition of heirs and creditors, unless interruption of prescription be legally proved.
    APPEAL from the Nineteenth District Court, Parish of St. Mary. Goode, J.

      Bdward Simon for Opponents and Appellants.

      J. A. Breaux eontra.

   The opinion of the Court was delivered by

Poché, J.

This controversy involves oppositions to the tableau of administration of the succession of Antoine Romero, propounded by Severin Romero and his co-heirs, children of the deceased, opposing generally all debts entered on the tableau as due by the succession, and claiming as heirs certain amounts alleged to be due by their deceased father to their mother, on account of the latter’s paraphernal property received by the husband and converted to his own use, and urging a further demand of $1180 alleged to have been received by their'father as paraphernal funds of their mother.

The account is also opposed by Donatien, Felicien and Irma Domingue, who seek to be placed on the tableau as creditors for the sum of $1005, alleged to be due to them by the deceased as the administrator of the succession of their deceased father, Francisco Domingue. These last opponents also resist the claims of the several creditors whose accounts are opposed by the heirs of Antoine Eomero. The claims thus opposed are those of prosper Eomero, Hervilien Segura, two claims of Désiré B. Miguez, Charles Delcambre, Theodore Delcambre, Lucien Pommier, succession of J. A. Mestayer, and St. Peter’s church, and E. Segura.

The judgment of the district judge rejected the claim of Severin Eomero and his co-heirs as creditors, ignored that of the Domingue opponents, rejected as unproved and, besides, as prescribed, the claims of Hervilien Segura ánd of Lucien Pommier, who had been placed on the tableau as creditors, and that of Achille Bessum, who had filed an opposition with the object of being recognized as creditor; and homologated the account as thus amended.

This appeal is prosecuted by Severin Eomero and his co-heirs and by the Domingue heirs.

Hervilien Segura, Lucien Pommier and Achilles Bessum, whose claims were rejected below, have not appealed, nor has the administrator, hence that feature of the judgment is not open to discussion.

But the same reasons which induced the district judge to reject these claims apply to those of Prosper Eomero, St. Peter’s church and the succession of J. A. Mestayer, whose several accounts are entirely unsupported by any evidence, and to those of D. B. Miguez, Eaphael Segura, Charles Delcambre and Theodore Delcambre, whose notes are all prescribed, the record containing no legal evidence of the interruption of prescription.

The Eomero opponents have no evidence in the record to support their claim of $1180, alleged to be due to their mother on account of the paraphernal funds belonging to her and alleged to have been disposed of by the deceased, Antoine Eomero.

Their other claim is for the sum of $800, the alleged value of cattle belonging to their mother at the date of her marriage, a,nd alleged to have been sold by the husband for his use and benefit. The evidence on that point consists exclusively of vague parol testimony, which fails to show the number of cattle received, the price at which any were sold, or any other particulars of the alleged transaction on which a judicial conclusion could rest. Both of their claims were properly rejected.

The claim of the Domingue opponents is proved by competent evidence, consisting of the account of administration of the succession of their deceased father presented by Antoine Romero as administrator, who charged himself with the sum of $1005 accruing to these opponents, then minors, and no effort has been made to prove any payment thereof or thereon.

Tiie omission of onr brother of the district court to recognize this claim must be due to an oversight. But these opponents claim a mortgage to which they are not entitled.

It is therefore ordered that the judgment appealed from be amended in the following particulars:

1. In ordering the Domingue opponents to be placed on the tableau as ordinary creditors in the sum of $1005, with interest as claimed in their opposition, which claim had been ignored in said judgment.

2. In rejecting the claims of Prosper Romero, Raphael Segura, Désiró B. Miguez two claims, Charles Pelcambre, Theodore Delcambre, St. Peter’s church, and of the succession of J. A. Mestayer, which liad been allowed in said judgment.

And it is now ordered that said judgment, as thus amended, be affirmed, costs of appeal to be paid by the succession.


text:
    No. 9763.
    The State of Louisiana vs. Dennis Corcoran.
    An appeal in a criminal case will not be dismissed on tbe ground that tbe transcript of appeal bas not been filed in tbe Supreme Court on tbe return day, if it appeared that it was filed within three judicial days thereafter.
    In a prosecution for manslaughter, it was urged that a few minutes before tbe killing the deceased and a number of companions were assembled at a certain place; tbat they left thero together and went to tbe place where the accused was found and was pointed out • by one of tbe parties to tbe deceased, who was told by tbe one thus pointing him out to go aud talk to him; and tbe deceased, without speaking, immediately approached the accused and seized him by tbe throat and beat him in tbe face; tbat tbe accused pulled loose from bis assailant and retreated to the middle of tbe street, where be was followed by tbe deceased, again seized violently and beaten by him. In which last struggle tbe mortal blow was given by the accused. At this stage of tbe testimony tbe witness on tbe stand, and who was one of tbe party tbat bad accompanied the deceased, was asked in substance, when this attack was made on tbe accused, what did you do, and what did each one of tbe party present do (naming each one), at tbe same time and place, which question was objected to, tbe objection sustained, and tbe witness not permitted to answer. Held, tbat tbe ruling was error. It is not true tbat tbe res gestee can consist only of what was said and done at tbe time by tbe participants in a combat. They may embrace what was said and done by any and all present, which have any bearing on tbe aflair or are in any manner connected therewith.

      APPEAL from the Criminal District Court for the Parish of Orleans. Balcer, J.

      M. J. Oimningham, Attorney General, and JAonel Adams, District Attorney, for the State, Appellee:
    ON MOTION TO DISMISS.

      A transcript of appeal in criminal cases must he filed within ten clays after granting the order of appeal. The Code of Practice does not regulate criminal proceedings. Article 589 evidently refers to civil matters. 31 Ann. 1171; 31 Ann. 805; 31 Ann. 483; 6 Ann. 653; 13 Ann. 491; 14 Ann. 469; 36 Ann. 310; 37 Ann. 62; 32 Ann. 1268; Sec. 4, Act 30 of 1878.
    ON MERITS.
    1. A declaration hy the deceased before the homicide, but having no casual connection with any immediate act produced hy the fatal conflict which resulted in the killing, is nota part of them gestee, and therefore inadmissible in evidence. Wharton Or. Ev. sec. 262.
    2. Before hostile threats by deceased against the accused are admissible in evidence, it must be shown the accused was present when they were made or they were communicated to him. 30 Ann. 1177.
    3. The ruling of the court a gua, refusing to grant a new trial, based upon questions of fact, cannot be revised hy this Court.

      Jas. O. Walker for Defendant and Appellant.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Todd, J.

There is a motion to dismiss the appeal on the ground that the transcript was not filed within ten days from the date of the order granting the appeal.

The order was granted on the 17th of May, and the transcript was filed on the 26th, same month.

This court lias held that an appeal in a criminal case will not be dismissed on the ground that the transcript has not been filed on the return day, if it appears that it was filed within three judicial days thereafter. State vs. Hampton, 33 Ann. 1252; State vs. Butler, 35 Ann. 392.

The motion to dismiss is therefore refused.

On the Merits.

The defendant, Dennis Corcoran, indicted for manslaughter, was tried, convicted and sentenced to seven years’ hard labor, and has appealed.

The case comes up on several hills of exceptions taken to the rulings of the trial judge on questions of evidence.

It is only necessary that we consider one of these bills.

The facts relating to it, and tlie circumstances under which it was taken are briefly these:

It had been proved that fifteen or twenty minutes before the killing took place, the deceased, Dan Ilaughery, Robert Simpson, Henry Hogan and several others, were at the Poydras Market; that they left together and proceeded to the corner of Liberty and South Poydras street, where the accused was found leaning against the posts of a shed. That when thus discovered, Robert Simpson said to Haughery, filie deceased: Dan, there is Corcoran; go talk to him.” That thereupon the deceased, without saying anything, advanced upon the accused, seized him by the throat, and beat him in the face with his fist. That the accused after trying to ward off the blows, succeeded in getting loose from his assailant, retreated to the middle of the street; that the deceased pursued, and overtook him, again seized him by the throat, and again beat him in the face. It was during this second attack hy the deceased that the mortal blow was given by the accused. It further appears, from the record, that the counsel for the accused had sought to establish that Ilaughery and his companions had left Poydras Market, where they were assembled, as above-mentioned, for the purpose of hunting Corcoran, and beating him ; and this he attempted to prove by a witness on the stand, and asked the witness (quoting): If shortly before the difficulty, say ten or fifteen or twenty minutes before the alleged homicide, did you not hear the deceased, Dan Haughery, ask Robert Simpson and Henry Hogan and others, to go with him to find Corcoran, to beat him ?”

On objection, the judge would not permit the witness to answer filie question.

Prom all this it appears that the theory of the defense was that there had been a plot formed by Haughery and his friends to find Corcoran and beat him, and that, in accordance with this plot, they had hunted him up, and Haughery had attacked him. Then, after proving this first attack by Haughery on Corcoran, the retreat of the latter and the pursuit and second attack by Haughery, the counsel for the accused, doubtless for the purpose of further supporting the theory of the defense, i. e., the plot for a combined attack on Corcoran by Haughery and his friends, asked Hogan, one of this party, and then on the stand as a witness, the following question (quoting):

While Haughery was beating accused in the face in the manner 3rou have described, what did you do, and what did Robert Simpson do, and what did Thomas O’Boyle do, at the same time and the same place ?”

This question was objected to on the ground (quoting) :

“ That it was not competent to prove in behalf of the accused anything that was said or done by any person or persons at the same time or place, except repeat what may have been said or done by the deceased or the accused, or by either of them.”

This objection was sustained, and the witness not permitted to answer the question.

In this the judge erred, under the circumstances stated and the facts developed, the question seems to us entirely legitimate and pertinent. Nor is it true that only the acts and declarations of the actual participants in a combat or melee can be proved as a part or parts of the res gestae. The res gestae may also embrace the contemporaneous acts and declarations of others present. 1 Greenleaf, secs. 108-111; State vs. Horton, 33 Ann. 290; State vs. Vines, 34 Ann. 1083.

We do not know what this witness might have testified to in answer to the question appearing above had he been permitted to answer it; but we can well conceive, from tbe facts already proved, that he might have disclosed facts highly favorable to tbe accused.

His testimony might have conclusively established that the accused was the victim of a plot or conspiracy on the part of Haughery and his friends, as charged by the counsel for the accused; that the entire party might have joined in the attack, or that Haughery was aided, abetted, or encouraged by the others, or other like facts tending to excuse the act of the defendant inflicting the mortal blow.

These are only suppositions, but whatever the answer of the witness to than question may have been, the accused was entitled to it, and the objection to the question was utterly untenable, and the ruling to the prejudice of the accused.

It is, therefore, ordered, adjudged and decreed that the verdict of the jury be quaslied, and that the sentence of the lower court be annulled and reversed, and the case be remanded to the lower court to he proceeded with according to law.


text:
    No. 9747.
    S. B. Steers, for use of, etc., vs. Home Insurance Company.
    Whore an insurer knows that the premises may he used for storing cotton, and inserts this written clause: “ It is understood that when the above building is nsed as a warehouse the rate will he changed,” the storing of cotton will not avoid or forfeit the policy. On the contrary, these words indicate that the policy is to remain in force, for unless it remained in force the rate could not he changed. In such case, even conceding that a right to e‘ change” meant a right to “increase,” it wa3 a right reserved to insurer, who alone could fix rates. The insurer could demand a higher rate, or he could cancel the policy where a right to cancel is provided. But, under the facts of this case, where the insurer did neither, the policy remained in force and the plaintiff must rocover,
    A PPEAL from the Civil District Court, for the Parish of Orleans, x JL BigMor, J.

      Kennard, Howe & Prentiss aucl Bayne & Denigre for Plaintiff and Appellee :
    1. Where an insurer knows that the premises may bo used for storing cotton, and inserts this written clause: “It is understood that when the above building is used as a warehouse the rate will be changed,” the storing of cotton will not avoid or forfeit the policy. On the contrary, these words indicate that the policy is to remain in force, for unless it remained in force the rate could not he changed. In such case, even conceding that a right to “ change ” meant-a right to “ increase,” it was a right reserved to insurer, who alone could fix rates. The insurer could demand a higher rate, or he could cancel the policy where a right to cancel is provided. But under the facts of this case, where the insurer did neither, the policy remained in force and the plaintiff must recover.
    2. But if this clause he held to impose on the insured the duty of notifying the insurer of the storage of cotton, it yet appears in this case that such notice was given. It might be claimed that the burden of proof on this point was on the company. 40 Missouri, 40; 3 Welsby, H. & G-. (Exchequer, 535). But if it be not, the fact of notice in this case is established by clear, positive and affirmative testimony, which is met only by the negative testimony of a witness whose memory is shown to be defective. Case stronger for plaintiff than that of Story vs. Hope Ins. Co., 37 Ann. 254; Willis vs, Hanover, 79 North Carolina.
    3. In such a case as this, defendant should have been satisfied, at least, with the decision of the lower court; and the plaintiff, put to needless expense,-annoyance and delay by the appeal, is entitled to damages.

      Singleton, Broione & Ohoate for Defendant and Appellant:
    1. The property covered by the policy in question was insured as vacant property, and not as a cotton warehouse. Sefton, pp. 60, 61; 68, 70; Steers, p. 18; Policy.
    2. The policy prohibited any change in the use or occupation of the property which would materially increase the risk without the assent of defendant. Conditions 1, 5 and 6.
    3. The property insured was used and occupied by the plaintiff as a cotton warehouse after the policy issued and at the time of its destruction by fire. Steers, pp. 10, 16, 23.
    4. Such use materially increased the risk and avoided the nolicy, unless the defendant assented to such use. Sefton, pp. 64,162; Steers, p. 38; Brown, pp, 82, 83, 84, 85, 86; 23 Ann. 458; 40 Mo. 27; 38 Me. 439; 10 Pick. 535; 9 Allen, 329; 99 Mass. 160; 14 Allen, 330; 21 Pick. 164; 45 Barb. 454; 17 Barb. Ill; 34 Pa. St. 79; Wood on Ins. p. 445.
    5. The burden of proof was upon the plaintiff to show that he notified defendant of the change in the risk, and that it assented to such change. Wood on Ins., sec. 507; 16 Md. 377; 98 Mass. 381; 100 M!ass. 472; 12 M. 73; 8 N. S. 259; 4 B. 219; 7 It. 418; 2N.S.66;3 N. S. 575; 2 L. 569; 11 L. 17; 15 Ann. 509, 663; 11 M. 4, 194; 3 L. 534; 10 Ann. 639; 13 Ann. 397; 14 Ann. 207.
    (J. The plaintiff has failed to establish that such notice was given to the defendant, or that it assented to such change in the use. Sefton, pp. 65, 94, 95, 100, 102.103.
   The opinion of the Court was delivered by

Todd, J.

This is an action to recover on a policy of lire insurance issued by the defendant company.

The policy issued on the 20th of February, 1885, for the sum of $4000, and on the 27th of October following the building insured, known as the “ old Golding Foundry,” was destroyed by fire.

The defense is that the property was insured as a vacant building; that it was stipulated as part of the contract that if the premises should be occupied or used, and the use changed so as to increase the risk, without notice to the company and its consent indorsed on the policy in writing, then the policy should be void. It is charged that during the period covered by the policy the property was held by the plaintiff as a warehouse for the storage of cotton, without the consent or knowledge of the company, and as a place for cleaning old iron cotton ties with coal tar, without the consent of the company,.and that such use materially increased the risk and avoided the policy.

There was judgment in favor of the plaintiff, and the defendant appealed.

The second defense about the cleaning of old iron ties with coal tar seems to have been abandoned, leaving only to be determined the first defense, relating to the use of the building as a warehouse, without the knowledge or consent of the company.

There is a clause in the policy that reads (quoting): It is understood that when the above building is used as a warehouse the rate will be changed.”

Tt is apparent from this clause, and especially from the use of the word “ when ” therein, that it was in contemplation of the parties to the contract that the building would be used at some timo as a warehouse ; and further, that when so used the insurance should continue, but at a different rate.

The contention, therefore, that the use of the building as a warehouse avoided the policy, is not sound, since the words of the contract refer to the precise case of its being so used, and provides for the continuance of the policy in that very event.

The company was, however, entitled to a notice of the change made in the use or condition of the building.

The plaintiff swears positively and emphatically that he did give such notice to the president of the company ; told him “ he was about to store cotton in the building,” and further said to him, to use his language: “I suppose you will charge me a higher rate now 9” To which the president replied (again quoting) : 1 do not know whether T will or not; I will see.”

It is true that this was denied by Mr. Sefton, the president of the company, who testified in the case.

The judge a quo, doubtlessly, acting on the principle or elementary rule of evidence that positive testimony on a given point must always predominate over negative testimony on tlie same point,,” gave credence to the statement of Steers rather than to the denial of this statement by Sefton, and mainly by reason of it rendered judgment in favor of the plaintiff. In the case of Story vs. Insurance Company, 37 Ann. 258, this Court, when tlie same question was before it, used the following language:

“But one witness swears affirmatively, and the other negatively. The assertion of a fact which never had an existence cannot be consistent with truth; whereas the denial of a fact which has existence may, without violating the truth, be the result of inatteution or a defective memory,” and then announced the rule of law on the subject quoted above.

An examination of the record affords some confirmation of a defective memory on the part of this witness, which it is unnecessary to enlarge upon. ' We find no reason whatever to reject the conclusion readied by the district judge upon this issue of fact, nor to question the correctness of the judgment rendered by him. The judgment is therefore affirmed, with costs.

Fenner, J. recused on. account of interest.


text:
    No. 9742.
    The State ex rel. C. C. Piper vs. Joseph Batt.
    The statute authorizing the organization of corporations for literary, scientific, religious and charitable purposos, prescribes the course to he pursued in order to effect such incorporation, and also the method of making amendments or alterations of the original articles. Courts cannot regard or give effect to amendments not made in compliance with the mode prescribed by the statute.
    Where the charter provides that the board of delegates, themselves elected annually, shall annually elect a chief engineer, the action of one board in electing such officer for a term of five years, cannot destroy the right and duty of succeeding boards to elect tbo engineer according to the charter.
    The first election only conferred upon the person elected the right to hold the office for one year, or until his successor was elected and qualified, and when, after the expiration of the year, a succeeding board of delegates has elected another to the office,, his qualification end.ed the term of the former occupant, whose former election was no valid or legal warrant for continuing in the office.
    JTailure to elect on the day fixed in the charter did not exhaust or destroy the power, and did not invalidate an election held at a subsequent regular meeting.
    APPEAL from the Civil District Court for the Parish of Orleans. 1 T'issot, J.

      Farrar c6 Kruttsohnitt for Relator and Appellee.

      W. 8. Benediot and Mohard Bomiing for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

Relator, averring that ho lawfully holds the office of Chief Engineer in the corporation known as the “ Firemen’s Charitable Association of the Sixth District of New Orleans,” and that Joseph Batt claims said office, and asserts his right to perform the duties and functions thereof, invokes the writ of quo warranto, requiring said Batt to exhibt to the court the authority on which he bases his claim and pretensions.

Batt returns, as his warrant for claiming said office, an election, held in pursuance of the charter of the corporation, on December 11, 1885, at which he was chosen as the successor and for the unexpired term of Horace P. Phillips, deceased, who had been regularly elected as Chief Engineer for the term of five years, beginning on the 12th of August. 1884, and ending only on the like date of 1889.

There is no pretense on the part of Batt that he was elected otherwise than for the unexpired term of Phillips, or that he succeeded to any other right than Phillips would have possessed had he survived.

On the other hand, there is'no dispute before us as to the validity of Batt’s election as the successor and for the unexpired term of Phillips, whatever that may be.

The judge a quo so held, and relator does not controvert the finding.

The vital question is: has the term of Phillips, and of Batt, as his successor, expired?

There is no doubt that the board of delegates which elected Phil lips intended to elect him for a term of five years, and that Phillips had already filled such a term under a previous election, in 1879.

But the question is whether the board of delegates had the power to elect a Chief Engineer for a longer term than one year.

The association was incorporated under the law's of the State, providing for the organization of corporations for literary, scientific, religious and charitable purposes. Rev. Stat., secs. 677 to 682.

The corporate powers were vested in a board of delegates, to be elected annually, and amongst other officers, that of Chief 'Engineer is created, and it is unequivocally provided that he also shall be elected annually by the said board, after its own election and organization.

As the charter is the fundamental law of the corporation, unless the foregoing provision has been altered by amendment, legally made, it is difficult to imagine how any board of delegates could claim the right to elect a Chief Engineer for a longer term than oue year.

But the law which authorized the formation of such corporation, and provided the mode in which they might be formed, was equally careful in providing the mode in which acts of incorporation might be altered or amended, viz : by executing an authentic act containing the proposed amendments, submitting the same to the District Attorney for his opinion as to their legality, and, after obtaining Lis approval, recording his certificate to that effect with the act. R. S. 679.

We could no more recognize the validity of an amendment not made in accordance with the foregoing requirements than we could recognize as a valid corporation an association which had never complied with like requirements of the law for their formation.

The charter itself contained a provision that “it could notin anyways be altered, amended or repealed unless by consent of three-fourths of the whole board of delegates, notice of the same in writing having been given at a prior meeting.”

Respondent seeks to show that such consent was given to an amendment altering the term of the Chief Engineer to five years. The judge a qiio found otherwise; but -we consider this of no consequence whatever. That provision merely directs the first step to be taken in order to secure an amendment. It did not dispense with the necessity of following up this step by complying with the express requirements of law already indicated, nor could it give force to an amendment not made in conformity with those requirements.

It is not pretended that any amending- act has ever been drawn or submitted to the district attorney, or approved by him or recorded.

Hence, it is perfectly clear that the original charter subsists intact, without alteration or amendment, as the fundamental law of the corporation.

The right and duty of each succeeding- board of delegates, themselves elected annually, to elect annually a Chief Engineer, are expressly aud unequivocally guaranteed by the charter, and it is impossible for one board, by electing that officer for the term of five years, to deprive succeeding boards of this right so secured.

The board of delegates, which entered upon their duties under the charter on the first Monday of January, 1886, have exercised this right by the election of the relator as Chief Engineer, and he is recognized as such officer by said board. When relator qualified under this election, the term of Phillips, which had long since expired, and was only-continued until his successor for a new term had been elected and qualified, and of Batt, who held under like conditions, came to an end, and the judge a quo did not err in holding that the warrant asserted by respondent as the basis of his claim to the office was insufficient and invalid.

We do not consider that the election of Piper was invalidated by the fact that it did not take place on the day directed by the charter, but at a subsequent regular meeting. The time mentioned is not of the essence of the power, and the omission to observe it did not exhaust or destroy the power of election. Jacobs vs. Murray, 15 Cal. 221; 2 Hennen’s Dig., p. 1580.

The estoppels set up against Piper have no force-

judgment affirmed.


text:
    No. 9748.
    J. A. Mercier et al. vs. City of New Orleans.
    Section 0, oí'Act 107 of 1884, only confers upon tlie city council of New Orleans power to revise valuations and correct descriptions of property actually assessed and entered upon the rolls by tlie board of assessors. It does not authorize the council to make original assessments or to list pioperty which the board has omitred from the rolls. Such omis* sions are to be corrected by tlie board of assessors in the manner pointed out by Section 2 of the same act.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Brmtglm, Buelc, Dinlcelspiel & Hwrt for Plaintiffs and Appellants. Walter H. liogers, City Attorney, for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

On May 2,1885, the plaintiffs became the adjudicatees at public auction of the real estate formerly known as “ Christ Church,” on Canal street, which, up to that time, had been used as a place of public worship and was exempt from taxation under Art. 207 of the Constitution.

The authentic title under the sale was only completed and recorded on June 6, 1885.

The board of assessors, who were required under the law (Sec. 8, of Act 107 of 1884) to complete their assessment “on or before the 31st of July,” failed to list said property for taxation in any manner.

The city council of New Orleans, acting under its construction of Sec. 9, of Act 107 of 1884, after notice to plaintiffs, undertook to supply this omission and to order the property to be placed on its rolls as subject to taxation on an assessment of $75,000.

Plaintiffs, averring the illegality and nullity of said proceedings on various grounds and suggesting apprehended injury, bring this suit to have them annulled and cancelled.

No exception is taken to the proceeding, which is submitted on the merits of the case.

At the trial, the following admission was made: “ This property was not assessed by the board of assessors, and has not been assessed by them either for State or municipal taxation to this day.”

The only warrant assigned for the council’s action is Sec. 9, of Act 107 of 1884, in the following words:

“Sec. 9. Be it further enacted, ete., That Sec. 27 of the aforesaid act be amended and re-enacted so as to read as follows: That all taxpayers shall liave the right to appeal' before a standing committee on assessment of the city council of New Orleans, and in other parishes before the board of reviewers, as provided for in the aforesaid act, during the sessions of said boards, and be heard concerning the description of the property listed and the valuations of the same as assessed, and they shall have the right of testing the correctness of their assessments before the courts of justice in any procedure which the Constitution and laws may permit; but the action to test such correctness shall be instituted on or before the first day of November of the year in which the assessment is made. The said committee on assessment shall meet on the second Monday of the month of August, in the city of New Orleans, of each year, to consider and examine into the applications of those owners of assessed property who believe the assessor’s valuation to be in excess of and beyond the actual cash value of the property so assessed. Said committee shall determine upon said applications and report their action at once to the city council for its approval or rejection, and such decision by the council shall be final, unless set aside, in accordance with Article 203 of the Constitution. That the said committee on assessment shall be and are hereby empowered to increase any assessment imperfectly or improperly made; provided, that before said increase is made, the taxpayer be served with a notice to appear before said committee within five days and show why such increased assessment should not be made.”

Our opinion is very clear that this section only confers on the council power to revise valuations and correct description or other imperfections in assessment of property made by the board of assessors and entered upon their rolls, but that it does not confer power to make original assessments or to list property which the board has, whether intentionally or inadvertently, omitted from the rolls.

The remedy for such omission is clearly pointed out in Section 2 of the same act, which authorizes the board of assessors to correct it, and defines the proceeding by which this may be done.

The theory of the city seems to be that when a person is not assessed for all the' property belonging to him, such assessment is imperfectly made within the purview of Section 9. But it is property, and not persons, which is made the subject of assessment, and the whole context of the statute shows that the section refers exclusively to imperfections in the assessment of property actually listed and assessed by the board of assessors.

The action of the city council in making this assessment was clearly unauthorized, and plaintiffs are entitled to relief.

Rights of parties under proper proceedings are reserved.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now adjudged and decreed that there be judgment in favor of plaintiff, declaring the assessment herein made by the city council of New Orleans to be null and void, and ordering same to be stricken from the records of the city comptroller, and that defendant pay costs in both courts.


author: Watkins, J.

text:
    No. 9786.
    The State of Louisiana vs. John Williams.
    1. When an accused person has been tried and a verdict of guilty returned against him, the trial judgo is without power or authority to grant a new trial ex proprio moiu.

    2. The trial judge is in no sense the custodian for the accused, and it was not his duty to take care of bis welfare.
    There would have been ample time for him to consider measures for his relief when applied for by the accused.
    A PPEAL from the T wen tied) District Court, Parish of Assumption. LX. Beattie, J.

      JS. A. O'Sullivan, District Attorney, for the State, Appellant. Defendant unrepresented.
   The opinion of the Court was delivered by

Watkins, J.

The accused was indicted, tried by a jury, and found guilty of cutting, stabbing and wounding one James James, with a dangerous weapon, with intent to kill and murder said James, whereupon the trial judge, ex proprio motu set the verdict aside, and granted a new trial, over the objection and exception of the District Attorney.

The trial judge assigns as his reasons for so doing :

1st. That the evidence, in his opinion, did not justify the verdict.

2d. That it would be unlawful for him to sentence the accused for such a felony when he was not guilty of it.

3d. That it had been suggested to him that the accused be brought into court and asked whether he wished a new trial. He says: “Of course, if I had been forced to appoint counsel for him, and counsel, knowing my opinion, would have advised him to malee no motion. If I did not appoint counsel, my duty was to see that he was not led into error, and it would “have become my duty to advise him not to apply, as it had already been stated by me that I would grant it ex proprio motu.”

The question presented, as well as the proceeding complained of, is a singular one.

We are at a loss to understand why a judge, who believed it to be his duty to see that the accused was not led into error, did not allow him “ to make his full defense by counsel learned in the law,” in the first instance.

He should have appointed some member of the bar to represent him. R. S. 992.

Having permitted the accused to go to trial without being represented by counsel, we think it was clearly his duty to have, at least, appointed one to care for his iuterest after the verdict, he claimed to be unjust, was rendered.

Conceding the correctness of his motives, and the unworthiness of the verdict, we think the trial judge ventured a step beyond the bounds of duty.

The court is in no sense the custodian for the accused, and it was not his duty to see that he was not led into error. While we are not prepared to say, at this time, that, if the new trial were sustained, the verdict first rendered would operate a bar to a second trial, on same information, it might be a serious question.

Const., art. 5, provides: “ Prosecutions shall be by indictment, or information; provided that no person shall be held to answer for a capital crime unless on a presentment or indictment by a grand jury. * * ■* Nor shall any person be twice put in jeopardy of life or liberty for the same offense, except on his own application for a neto trial, or where there is a mistrial, or a motion in arrest of judgment is sustained.” Const. 1879.

This is a new principle incorporated into the organic law, not existing in any former one, viz: Nor shall any person be twice put in jeopardy of life or liberty for the same offense, except on his own application for a neio trial,” etc.

There had long been serious controversy among jurists and lawyers as to the proper interpretation of “ twice in jeopardy and doubtless the phrase employed was placed in the Constitution in order to make it an insurmountable barrier to further dispute ou that question.

It must be observed, and the trial judge erred in not doing so.

It is, therefore, ordered, adjudged and decreed, that the order granting the new trial ex proprio motu be annulled and vacated, and that the cause be remanded to the court a qua for further proceedings according to law, without prejudice to the right of the accused, to make application for a new trial.

Judgment reversed.