author: Bermudez, C. J. Manning, J. Poché, J.

text:
    No. 8589.
    The President and Directors of the Consolidated Association of the Planters of Louisiana vs. George J. Lord.
    bhe judicial decree rendered in 1843, declaring tiie charter of the plaintiff forfeited, termimated its corporate existence.
    The Act of 184V laid upon the managérs and directors of the plaintiff the duty of requiring of the stockholders such annual payments as would accumulate a fund sufficient to meet the obligations of the State; restricting them only in. this, that the equal instalments should run from one to seventeen years.
    "When the managers and directors accepted the terms offered them by the State in this Act, and levied a contribution of six dollars on each share of every stockholder as sufficient to meet the obligations of the State issued.for this Association, a contract was thereby made' by and between the State and the stockholders which neither can he permitted to violate.
    The attempt of the State, by the Act of 1878, to impose a further contribution of forty dollars per share upon each stockholder, is a violation of this contract, and cannot be enforced.
    The annual contributions of six dollars per share are prescriptible in five years.
    APPEAL from tbe Civil District' Court for the Parish of Orleans. Iiigldor, J..

      J. G. Egan, Attorney General, and John MoEmry for Plaintiffs and Appellees:
    1. “ One who contracts with what he acknowledges to he and treats as a corporation, inour- ' ring obligations in its favor, is estopped from denying its corporate existence, particularly when the obligations are sought to bo enforced.” Latolais, Administratrix, vs. Citizens’ Bank of Louisiana.
    2. “ Although a corporation had expired by limitation, and judgment of forfeiture of charter had also been pronounced against it on behalf of the State, yet, when, from the nature and objects of the institution, a power to liquidate its affairs after the expiration of its charter might have been foreseen as absolutely necessary, the power to aooept from the State an extension of the charter for the purpose of liquidation will be implied? and this extension enabled it to sue a defaulting stockholder, notwithstanding the enabling statute was passed subsequent both to the deoree of forfeiture and the expiration of the charter by limitation.” 7 An. 319.
    3. ‘ ‘ There is no prescription of obligations of individuals for the seourity. of stock subscribed and unpaid as long as the liquidation of the company continues.” 12 A*n. 528; 27 An. 535.
    4. By Act No. 19, Sec. 14, of 1827, the liability of the stockholders depended upon the pay* ment of the debts of the corporation; and not until after its debts had been paid and settled was the entire stock obligation due, and no prescription could possibly begin to run until after that date.

      J. A. Campbell on the same side.

      M. IT, Marr and Jules Lavergne for Defendant and Appellant:
    1. The Act 100 of 1847 was a contract between the State and the stockholders of the Con* solidated Association; and it fixes definitively the rights and obligations of both parties.
    2. The amount to be contributed by the stockholders having been fixed by that Aot, the State is debarred from requiring any additional contribution by them.
    3. Every stockholder has the right to invoke the benefit of that Aot as fixing the entire amount to be contributed by him, and as a bar to any claim for further contribution.
    4. The Act No. 20 of 1878 is in violation of the Constitution of the United States, Article 1, Section 10, in that it impairs the obligation of the contract created by the oiiginal charter of the Association; and in that it impairs the obligation of the contract created by the Act No. 100 of 1847.
    5. The right to call upon the stockholders for contribution was exhausted in 1847.
    6. The right to oall upon the stockholders for contribution accrued when the Association became insolvent; and this right was barred by the lapse of more than thirty years from the date of .the accruing of that right, and the passage of Act No. 20 of 1878, and the assessment made under that Aot in July, 1880.

      Chas. E. Claiborne and Blano & Butler on the same side.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action to recover from the defendant contributions assessed against him as stockholder of the Consolidated Association of the Planters of Louisiana, the payment of which is alleged to be secured by special mortgage on certain urban real estate.

The contributions first claimed are of six dollars on each of his 22 shares of $500 each, for five years, including 1865, with interest at eight per cent. They were levied under the provisions of Sec. 6 of Act 100 of 1847, extending the liquidation of the Association.

The contributions secondly claimed are of forty dollars on each of the same shares, with like interest. They were imposed under the terms of Act 40 of 1878, providing for a final liquidation of the concern.

Both contributions are claimed to satisfy an indebtedness to the State, and a liability incurred by her for the Association.

Under the averment of her claim and of an interest in the recognition and enforcement of the demand the State intervened, joining and assisting plaintiffs.

Numerous defenses were set up, which can be said substantially to be: that the petitioners have no standing in court; that their right of action is barred by prescription;, that the State is no creditor of the concern and has no interest in the litigation, and that, lackiug a foundation, the claim must fail.

From a judgment overruling the exception to plaintiffs’ capacity to sue, and referring other defenses set up in limine to the merits, and from another judgment entitling the petitioners to recover, the defendant has appealed.

On Exceptions.

The plaintiffs were appointed under authority of Acts Nos. 113 of 1853 and 40 of 1878, for the purpose of bringing the liquidation of the affairs of the concern to a final close. To that end they brought the present suit. The complaint is that they did not set forth their names, but merely stated their official capacities.

It was not requisite that they should have given their names. As corporate bodies and chartered institutions can, during their existence, act judicially under the name or title given them in the act of incorporation, without mentioning the names of the officers representing them, so, when those organizations have ceased to operate and are in liquidation, the parties entrusted with the winding up of their business can sue in their official capacities without stating their individual names. C. P. 112; 6 An. 542. The plaintiffs have made themselves sufficiently known to the defendant by designating their titles.

Suits brought by persons as agents, or for the use of others, have often been decided to have been properly instituted, and defendants have been held to answer the demand. H. D. 1124. Had the defendant seasonably denied the existence of any person entitled to the capacity alleged, the plaintiffs could have been held before issue joined to identify themselves with the trust, but that denial was never entered.

The corporation was created in 1827. Its charter was modified in the year following. Its existence was to terminate in 1843; but in 1842 its charter was judicially declared forfeited.

In 1847, with the consent of the stockholders, an assessment was levied and the period of liquidation was extended to 1865. In the year following the legislature, authorized a continuation of the liquidation' until the maturity of the bonds which the State had issued in aid of the institution.

In' 1878 an Act was passed directing a process of liquidation and providing for the continuation of previous officials, and for the appoint-1 ment of additional ones. This suit was brought by such officials.

■ In the exercise of powers inherent to all well regulated governments over insolvent estates, the legislature was authorized to adopt the Acts which it passed for the liquidation of the business of the Association, Those powers have constantly been exercised in Europe, in our sister States and in our own, in some form or other. 12 An. 288; 10 R. 460; 7 An. 319; 5 An. 470; 7 An. 286; 6 An. 457; 5 An. 740.

The plaintiffs are rightfully in court and can sue as they have done. A payment made to them in their official capacity, of any sum due to1the concern, would exonerate the debtor and conclude the-organization! and all interested therein. 9 An. 265; 7 An. 114; 8 An. 132; 9 An. 341.

The exception to the right of plaintiffs to represent the concern in this suit and to the mode in which they have appeared in court to represent it was not well taken and was properly overruled. The other-defenses advanced in limine could not be dealt with as exceptions and were properly referred to the merits, to which they -really belong.. The reference could occasion defendant no injury. '

On the Merits.

We think proper to premise that, although it is admitted .that the State has-filed an intervention, we have failed to discover it in the transcript. It was agreed, however, that the defenses raised against the plaintiffs would be deemed as urged against the State. , ,

From the lengthy and elaborate answer of the defendant and the-oral and printed arguments, all of which strenuously deny any liability either to the concern or to the State, the main defenses may be considered as being;

- That -the claim is prescribed; that the debt was novated and the mortgage-extinguished; that, by the payment of certain instalmentslevied under the Act of 1847, the stockholders were completely discharged; that each stockholder can be held only for his share of the debts of the Association and not for the delinquency of other stockholders or- deficiency of the.property mortgaged; that this proportion should be computed on the original 6,000 shares subscribed ;■ that not more than five per cent, can-be claimed on arreared contributions; that the stockholders have a,right .to pay such proportion in anjr bond issued by the State, under the Funding Act of 1874, or the Constitution of 1879, that is,.$60 for $100; and upon so doing, that, they are entitled to.a discharge from all indebtedness and to a cancellation of the mortgage.originally consented on their property, solely for the eventual payment of the shares subscribed for, and in no way. for that of the bonds issued by. the State. ...

The demand and the defenses being stated, the merits must now !>e inquired into. ......

The corporation having failed .to raise.the capital necessary for its ■ banking operations by the negotiation of its bonds, which were authorized to be issued by the act of incorporation of 1827, the State; became a stockholder, and under the Act of 1828, .uttered her own-bonds, acknowledging therein an indebtedness to the corporation, by. whose endorsement, they were to be transferrable. The officers of the corporation endorsed the bonds, with a stipulation of its liability, therefor, disposed of them, received the proceeds and applied the qame to its purposes. The.payment or reimbursement of those bonds, was secured by a pledge of all the assets of the corporation, including the mortgage consented,by the stockholders to make certain the pay-ment of the shares subscribed for by them. The payment of those bonds, was, from time to time, extended. .A largo number of the same-was funded under the Funding Act of 1874.by. the holders, who, upon, receiving from the State other.bonds of hers in discharge-of their claim against her, ceded and transferred unto her all their right,.title, and .interest in and to the same and to the securities guaranteeing the. payment or reimbursement thereof, fully subrogating the State thereto,.

■ The State then became a creditor of; the concern for the amount of the bonds funded, or, at least, for the amount of the bonds given inpjaee thereof, acquiring, both by conventional and legal subrogat-iou,' all.the rights which the. holders of the funded bonds could have exercised against the Association to coerce payment..

It is not correct to say that it was essential for the State to have-paid in money the bondholders, in order to be subrogated by them to their rights. It was optional with them to accept either money, or any other valuable consideration for the cession and subrogation. The transfer could have taken place even without any consideration. The. cession, transfer and subrogation could have been made as a benevo-: l.ence, or as a gratuity.

But it was not necessary that there, should be any conventional subrogation. As the concern was bound for the payment of the bonds with the State, or the State was liable with it and /or it,.the $tate had-an interest to acquit or.discharge the debt as far as she was concerned,- and she could do so on terms acceptably to the holders and most suit-, able to her interest. She obtained thereby her release from the hold" ers, with a curtailment of 40 per cent, on the dollar. Whether this partial release accrues to the benefit of the State alone or to that of the concern also, is a question which is not presented in this case, and which does not require a decision presently. It will be time to determine it when the issue will be properly submitted.

It is for the purpose of meeting the indebtedness in favor of the State, as also of paying what unfunded State bonds may exist, that the contributions, particularly that of $40 per share, have been raised.

The liability of the Association for the payment of the bonds of the State was constantly acknowledged by it. It was recognized in the Forstall case, lately decided, 34 An. p. 770, O. B. 56, fo. 1032. That acknowledgment concludes absolutely both itself and the stockholders. It cannot, therefore, plead an extinction of it, either by prescription, novation or otherwise. Its liability therefor is commensurate with that of the stockholders, which extends ratably to the amount of their subscription for stock, secured by mortgage on tlie property subjected, thereto, or so much of said subscription as may be necessary to satisfy the liability for the bonds. 18 An. 310; 24 An. 405.

The right of holders for payment was declared1 to be imprescriptible, the State not being suable. 30 An. 611. The obligation of the Association, whatever it was, to discharge the obligations which the State had incurred for its benefit, was co-extensive with the responsibility of the State. The securities guaranteeing the fulfilment of that obli - gation have continued unimpaired, unless prescribed, and will so remain until the liability secured shall have been satisfied.

The defense, as against both the plain tiffs and the State, that the latter is no creditor and that no call can be made to pay a debt which has no existence, would have been formidable, indeed, destructive of the action, if founded j but such is not the case.

It is undeniable that, in 1850, when lie purchased from the Mechanics’ & Traders’ Bank the property on which the mortgage is claimed, the defendant acquired, at the same time, the twenty-two shares which had been previously bought from Widow Duplessis, an origiual stockholder, and that he assumed, or took the reversion of the mortgage given by her to secure the payment of that stock, then valued at $500 per share, $11,000 in all. In 1850, the defendant then stood in the same condition as Mrs. Duplessis, vested with the same rights and subjected to the same obligations.

The history of the Association, the object, tenor and character of its charter, the vicissitudes through which its stockholders, its creditors, the State have passed, the tale of its protracted and onerous liquidation are familiar to the jurisprudence of this State. In some twelve cases has the highest Court had. occasion to consider the same. 2 An. 1012, 776; 3 An. 552; 7 An, 319; 10 An. 591; 24 An. 519; 27 An. 535; 30 An. 611, 980, 1151; 34 An. 770, O. B. 56, fo. 1032. The legislation concerning it covors no less than sixty-five pages of the statute books.

It is needless, therefore, to enlarge what has already been said on the subject. It suffices, for the purposes of this case, to know that the Association has long since ceased to be a going institution, and that the liquidation of its affairs was entered upon. The corporation ceased, business, but it never disbanded. It continually remained under the charge and administration of officials recognized by law.

In order to accomplish the liquidation it was necessary, on the one hand, to ascertain the debts and liabilities, the assets and resources, and on the other, in the event of deficiency or deficit, or, in other words, of inability to pay, or insolvency, the right accrued to collect, without obstruction from the stockholders, contributions wherewith to meet the indebtedness of the concern. 9 An. 265, 341.

It is important to note that the mortgage originally consented was furnished to secure the payment of the value of the stock subscribed for, and also to secure the payment of the bonds to be issued by the concern at 5,10 and 15 years, for the purpose of raising the capital necessary for banking operations. It was on the failure of the institution thus to raise the capital that the State, becoming a stockholder in 1828, issued her bonds, the payment of which, 'fixed to June, 1843, became secured in the manner indicated by Act No. 19 of that year.

In 1830, the legislature granted two years after the expiration of the charter in 1843 to close the affairs of the Association. In 1835, the payment of the bonds of the State was postponed to June, 1848. In 1843, the assets of the Association were taken possession of by the State, so to remain nnder her management until final payment of all the bonds issued by her in its favor. In 1847, the bonds were extended 6, 9,12, 15 and 18 years, and a contribution was authorized to be raised, sufficient to meet the obligations df the State, to be divided into instalments running from one to seventeen years.

In 1853, by Act 113, the president and directors, constituted in accordance therewith, became and remained the sole liquidators, representing both the corporation and the State, and as such were entitled to the possession and exclusive management of the assets and affairs thereof.

In 1866, the legislature authorized a further postponement of the payment of the bonds of the State for ten years and a prolongation of the liquidation of the concern until the maturity of the bonds thus extended.

A careful and attentive survey of the whole legislation, however obscure,- on the subject of this Association, satisfies the mind that the right-of action against the stockholders for tlie payment of their shares in whole or in part, was not an absolute, unconditional one, but an eventual one, not to arise unless in a contingency, a deficiency in the assets, an inability to pay, until a call for that purpose liad been actually made. Hence, that right accrued only the moment the assessed instalments matured, and becoming exigible-, were demanded.

The contribution called for in 1847 was of $6 per share, during 17' years. The defendant has paid all, up to 1860, but-since has failed to pay any. He pleads prescription iu- defense.

' The proposition is unwholesome that prescription does not ruu on money claims of the description of those sued on against corporations, whether going or not.' It is only where the claim has not ripened by the happening of a contingency, in contemplation for its maturity, that prescription does not run. ' J

The initial point in this case, when prescription began-to run, was not precisely the-happening of the contingency which-justified-tile call for a contribution, but was the-oall itself. - '

The payment of the obligation of the stockholders to the Association was secured by a mortgage and not by a pledge. It is the payment or reimbursement-of the bonds of the State that was secured by a pledge. Hence, the stockholders can plead prescription against the Association, while that defense cannot be set up against a claim of the bondholders, pr of the State, although the pledge may itself be destroyed by prescription.

: This suit is not by a bondholder, or by tlié State subrogated, but by the Association for a partial payment of the shares secured by the mortgage. A pledge, keeps a debt alive, a mortgage does not.

• It does not appear that the stockholders have ever assumed the liability of the -Association or have, at any time, consented that their obligation in its favor and the mortgage guaranteeing it, be pledged to secure it. Whatever the effect-of the pledge may be as to-the Association, it cannot prevent the stockholders fi-oni pleading prescription against'the-Association, when it seeks to enforce payment of the obligation pledged as a security for its-debt.

- Prescription proves destructive of money claims-owned by married women, minors and interdicted, persons, the responsibility for permitting their extinguishment resting on the person who could have interrupted and prevented it from accruing and who did' not do so. There is no reason why that mode of extinguishing' obligations owned by corporations should not also prevail, in the absence of any statute of immunity taking them out of the rule governing such cases.

The liquidators should -have brought suit, on the- failure of the defendant to respond, for the recovery of the contributions raised under the Act of 1847, or, at least, before prescription could have extinguished the right of action. This suit was instituted in 1881, far jnoi'e than ten years after the maturity of the last instalment in 1865. 3 An. 181; 9 An. 342; 13 An. 259. Whether the action was prescribed by five years it is not necessary to decide, as it was surely extinguished by the lapse of ten years.

The suit for the five instalments, ending in 1865, must then abate in favor of the defendant.

It now remains to be determined whether the plaintiffs can recover the contribution of $40 per share, assessed under the Act of 1878.

That contribution is nothing but a part of the original debt contracted for the purchase of the shares, the payment of which was secured by conventional mortgage. The debt contracted was the value of the shares, which was to be paid at no specified date, but eventually ouly.

In Clinton & Port Hudson R. R. Co. vs. Eason, 14 An. 876, although the plea of prescription was not sustained, the Court considering and discussing the very question and reviewing the previous ruling in 3 An. 181; 9 An. 342; 7 An. 116; 13 An. 259; 12 An. 528, announced the doctrine, that where the liability of a stockholder, in an incorporated company, on a mortgage given to secure the subscription to the capital stock depends on a future contingency, prescription does not begin to run unless that contingency has happened, which was to make the payment of the subscription demandable. We concur in that proposition, which we consider well founded in law.

In the present instance the contribution of $40 was called under the provisions'of the Act of 1878, and five years have not since elapsed.

We will now proceed to consider summarily the other defenses, some of which could be considered as inconsistent and self-destructive.

That of novation is not sustained by the evidence. The debt of the defendant to the Association is, in nature, what it was when Mrs. Duplessis incurred it. It has not, in the least, been since changed or modified. This defense was rather designed to defeat the indebtedness to the State, but it cannot avail. The giving of new bonds in place of the old ones, although it discharged the liability of the State to the bolder, was not destructive of the rights of such holder against the Association, rights which the State acquired, as was already said, both by a conventional and by a legal subrogation.

The defense, if of any force, that the payment of all the instalments under the call made in 1847, operates as a discharge for the surplus of. the subscription, cannot avail the defendant, as he has not paid them.

That lie is relieved by prescription from paying the contributions claimed is not an equivalent for payment. Prescription is not the coin recognized by creditors for the satisfaction of their claims. It is not money.

The defense touching the quantum of liability, on the assumption that it could relieve the defendant* cannot be inquired into, in the absence of evidence to substantiate it.

There may have been and, no doubt, thei’e has been for a series of years, a deplorable maladministration of the affairs of the concern, but, at this late hour, the tardy complaint of the defendant cannot relieve him. He was not without remedy. He does not appear to have exercised any right, or sought any relief. For having slept on his rights, he can blame no one but himself. 6 An. 457; 7 An. 114; 9 An. 341.

• The evidence does not show that the contribution of $40 is not what it should have been, or that it is excessive. 25 An. 136.

The defense touching the rate of interest is well founded. There is nothing in the record to show' that a higher rate than that allowed by law was ever agreed to by the stockholders. The charter and the acts subsequently passed are absolutely reticent on the subject. To such effect was a previous ruling. 10 An. 611.

The last defense, as to the mode in which the obligations of the concern, or of the stockholders to the State can be satisfied, cannot be passed upon in this case. The State is not now asking- payment of the bonds issued by her.

The judgment appealed from erroneously allowed-the five instalments, the last of which matured in 1865, and- also an interest higher than five per cent, on the contributions under the Act of 1878.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be reversed, in so far as it allows the five instalments, aggregating six hundred and sixty dollars and the interest thereon, and interest higher than five per cent, on the contributions under the Act of 1878, of forty dollars per share, aggregating eight hundred and eighty dollars ; that it be.amended by striking therefrom said allowances, and that thus amended, it be affirmed, plaintiffs and appellees to pay costs of appeal.

Fenner, J., recuses himself, on the ground of interest.

Manning, J., takes no .part, the case having- been argued and submitted before his appointment.

On Rehearing.

Manning, J.

The corporate existence of the Consolidated Associa^ tion was terminated by tbe judicial decree of forfeiture in November, 1842, made at the instance of the State. Doubtless in anticipation of this decree, the State had already provided by the Act of that year,' that the management of the property Banks, when their charters were adjudged to have been forfeited, should be confided to persons appointed by the State. Immediately after tbe decree of forfeiture the State by legislative expression declared that the assets of this Bank are and shall remain in the possession and under the exclusive management of the State until final payment of all the State bonds issued in its favor. Acts 1843, p. 56. The Governor accordingly appointed managers who took charge of the affairs of the Bank.

This exclusive management by the State ceased in 1847, when the State proposed by a legislative act that the stockholders should participate . in the management, and should elect three of the managers, the State continuing to appoint the others. This Board, thus composed, was authorized to extend the bonds of the State issued for this Bank to periods ranging from six to eighteen years, and enacted that the liquidation of the Bank “maybe continued until the maturity and payment of the bonds thus extended.” This was a permissive continuation until 1865. It was not imperative that it should be thus prolonged.

This important Act further laid upon the managers and directors the duty of requiring of the stockholders such annual payments as would accumulate a fund sufficient to meet the obligations of the State, restricting them only in this, that the equal instalments should run from one to seventeen years. Acts 1847, p. 76.

The managers thereupon, by resolutions determined that under the above Act a contribution of six dollars per share shall be paid by each stockholder of this Association on June 1st, 1849, and on same day of each succeeding sixteen years; and that the sum due on the stock loans by the stockholders shall be divided into eighteen equal annual instalments to be paid on June 1, 1848, and every succeeding June for seventeen years.

The stockholders then met, accepted this legislative Act tendered by the State, and voted to abide by the arrangement and settlement therein provided. The managers and directors had ascertained by careful calculation that an assessment of $102 per share would accumulate a fund sufficient to meet the obligations of the State in behalf •of this Bank. It would produce $612,000, and all of this sum has been paid except thirteen thousand dollars.

The limit of the time thus fixed for the liquidation of this Bank was June 30,1865. That time expired and the liquidation was not ended; nor was it continued and extended before its expiration,. The legislature however assumed in 1866 to prolong this liquidation ten years “ and no more,” but the stockholders were not consenting parties to this extension, and appeared to have stood on their rights acquired under the Act of 1847. The State assumed more than this, viz., that this Bank was at that moment fully organized, whereas it had been over twenty years in liquidation, and the last Section of the Act of 1847 specially provided that nothing therein should be so “ construed as to revive the charter, or permit any forfeited privileges ” to be exercised.

The ten years’extension of this Act expired in 1876 and the Bank was as far from being liquidated as when it began. The legislature appear to have abandoned it, and to have adhered to the emphatic “no-more” extension contained in the Act of 1866. Then one of the courts appointed a receiver of the defunct corporation, who took possession of its assets, and shortly afterwards some of the holders of the State bonds issued for it brought suit in the U. S. Circuit Court to have it liquidated there, and three receivers supplanted the single one who had been appointed by the State court. This lasted until May, 1879, when a receiver pro tempore was appointed, who retained possession of the assets until June, 1880, when they were turned over to the State.

Meanwhile the Act of 1878 was passed, under which the plaintiffs claim the right to demand the contributions which this defendant resists. But the State is the real plaintiff. The Attorney General appeared in her behalf. She has intervened and joined the nominal plaintiffs, and it is therefore the State that is seeking to enforce payment of the contributions under both Acts of 1847 and 1878.

It is against law and right, and yet more against equity and good conscience, that she should be upheld in it. It is against law because she tendered and proposed a settlement to the stockholders in the Act of 1847, which upon their acceptance of it became a contract with them, which she not only bound herself to perform, but took and held control of the affairs of the dead Association in order that she might perform it. It is against equity because she has received what she at the outset of her bargain, by herself proposed, estimated as sufficient to protect her from her liability upon her bonds issued for the Association, and instead of applying it to the purposes for which she had exacted it, squandered it in riotous living.

■ The horde of officers—president, vice-president, cashier, receivers, directors—pass before ns in this record in lengthened procession, laden with salaries and plethoric with stipends, and the lean and slippered’ stockholder, gaunt from forty years’ exhaustion, at last holds up his hands in eager, passionate suppliance for relief from this insatiate, ever-recurring hunger for more contributions. For only five and a half years of the forty-one that has elapsed since the decree of 1842 terminated the corporate existence of the Association the expenses are thus summarized:

B. F. Flanders, receiver..........................$ 7,988 03

A. Eustis, receiver........................... 4,165 33

L. A. Wiltz, receiver.................;........;. 2,165 31

J. Calhoun, secretary, cashier, receiver.......... 16,508 20

Lawyers......................................... 19,546 08

Employees..............................•.........' 3,907 86

W. Steven, president....................... '3,239 93

Master in Chancery.............................. 1,110 00

$58,630 74

That is the domestic expenditure from June, 1876, to January, 1882. Had it been used for the purchase of bonds, it would have bought them to the amount of $100,000. After the most liberal allowance for necessary expenses in conducting tile-liquidation since 1847, when the State proposed her mode of protecting herself, it is fair to assume that had the funds which the stockholders contributed not been wasted, the full number and amount of the State bonds could have been paid. It is not only fair to assume it, for if these figures are a sample of the forty-one years’ expenditures, it can be arithmetically proved to have been sufficient.

The contribution of forty dollars per share now demanded, when six was deemed ample thirty-six years ago, of itself shews the waste of resources. The exaction of this ruinous contribution by the State, the party who has had control of the resources and committed or permitted the waste, is not justifiable in any aspect.

One of the causes of this large exaction is that many of the stockholders have become insolvent, and those who are solvent are assessed for the whole. Even if the assessment of 1847 had not been made for the purpose of protecting the State, and been ample for it, the State cannot increase the burden of each stockholder by holding him not only individually responsible, but each for the other. U. S. vs. Knox, 12 Otto, 423; N. O. Gas Light Co. vs. Bennett, 6 Ann. 457.

The defendant has paid the instalments or contributions under the Act of 1847—actually paid thirteen of them and is protected by prescription from the others. In law he owes nothing on them, and has therefore discharged all liability for them. Whose laches and inaction permitted him to plead prescription successfully ? But if he had not paid them, does that non-payment of contributions he owed justify the exaction of contributions he does not owe 1 If a stockholder has not- paid those contributions, let him be compelled to pay them, but it cannot be legally demanded of bim that he shall make good the fund which the State has wasted..

It is therefore ordered and decreed that our former decree is set aside, the judgment .of the lower court is reversed, and that there be now judgment in favor, of the defendant .rejecting the demand of the plaintiff, and for costs..

Bermudez, C. J. I adhere, to the previous.opinion.

Concurring Opinion.

Poché, J.

In view of the fact that I had concurred in the previous decree, and of the extended and separate study which I have since devoted to the issues involved in this case, I deem it proper to add my views to the able opinion prepared by my associate.

In our previous opinion in this case we refused to consider the defense urged as to the quantum of liability of stockholders to make up the deficit for the payment of the debts of the Association, on account of the bonds issued for it by the State, and advanced the following reasons in support of our course:

1. “ The defense, if of any force, that the payment of all the instalments, under the call in 1847, operates as a discharge for the surplus of the subscription, cannot avail the defendant, as he has not paid them.”

2. “ The defense' touching the quantum of liability, on the assumption that it could relieve the defendant, cannot be inquired into in the absence of evidence to substantiate it.”

After a thorough reexamination of the record, a careful consideration of the argument of counsel for defendant on their application for rehearing, and an exhaustive review of the authorities relied upon by' them, I have reached the conclusion that we had, to a certain extent, misapprehended the exact nature of the defense on this point.

' As I now understand the proposition, the resistance is to the power of the Association to make any other call for contribution beyond that required under the provisions of Act 1Ü0 of 1847.

The State has intervened, joining the plaintiff in the present case, and is, therefore, a party under the pleadings. Hence, to all intents and purposes, the’issue presented in the controversy can be tested in the same way as though the State was the real plaintiff, seeking to enforce payment of the unpaid instalments of the call made under the: Act of 1847, and of the contribution called for under the authority of Act No. 20 of 1878. ■ •

I take it as an undeniable- proposition, that this Association ceased-to be a going corporation since the 17th of November, 1842, when its charter was judicially declared to be forfeited, and that the amount or extent of the liability of the stockholders to contribute ratably to the payment of the debts of the concern was fixed according to the financial condition of the Bank at that date, and that the corporation was henceforward powerless to perform any corporate act; nothing being then left to do but to proceed to a liquidation of the concern.

Buell was the understanding of the State authorities, and of all other parties concerned at the time, and hence, a liquidation of the Association was immediately ordered by legislative authority, under the provisions of Act No. 92 of 1843.

Now, as the State had issued, for the credit of the Rank, all the bonds which were outstanding, and had secured her liability by a pledge on all the stock mortgages and other assets of the corporation, her only security and her exclusive safety consisted in a proper control of the assets of the concern.

Hence, it is, that Section 3 of the Act provides: That the assets of the Consolidated Bank of the Planters of Louisiana are and shall remain in the possession and under the exclusive management of the State of Louisiana, until final payment of all the State bonds issued in its favor.”

Proceeding in the liquidation the State authorities soon reached the conclusion that a call on the stockholders was necessary to create a fund needed for the payment of the debts.

•This prompted further legislation on the subject, and culminated iu Act No. 100 of 1847, which made ample provision to that effect. Section 6 ordered: “ That it shall be the duty of said managers and directors to require such annual or periodical payment from the stockholders of the Consolidated and Citizens’ Bank, independently of their stock obligations, as will accumulate a fund sufficient to meet, faithfully and regularly, the obligations of the State for account of these Banks; provided, the amount required from the stockholders of the Consolidated Association be divided in equal instalments, running from one to seventeen years,” etc.

In obedience to this .mandate the board of directors of the plaintiff Company met on the 6th of June, 1847, and adopted the following resolution:

11 Résolu qu’aux termes de l’aete approuvé le 6 avril 1847, une contribution de six piastres par action sera payable par chaqué actioniiaíre de 1’Association Consolidée le ler de juin de l’annóe 1849 et le ler de juin de chacune des seize années qui suivront.”

This contribution was equivalent to a call of $102 per share, and the number of shares being 6,000, the total amount contemplated in the call was, therefore, $612,000.

The resolution was made in express compliance with the requirements of the Act 5 it must have been preceded by an examination into the financial condition of the concern, and it must have been predicated- on a full statement of the debts to be paid, and the amount of the assets then :held in pledge by the State. Hence, the resolution of the Board must be construed as a declaration from the State to the stockholders, that a payment of $102 on each and every share held by them would release them from any aiid all liability as stockholders, on account of the bonds issued by the State in favor of the corporation.

This declaration when acted on and accepted, as it was, by the stockholders, ripened into an inviolable contract between the State and the stockholder. If any stockholder, having no loan mortgage] had then stepped up to the Bank, and had paid in full the amount which was exigible only by instalments in seventeen years, it will hardly be gainsayed that he was entitled to a full discharge. -How then can it be conceived that, in the legislative mind, any other call was then possibly contemplated 1

Tile well known history of this interminable liquidation informs us that this contract has not been faithfully-executed by the board entrusted with its management, and the subsequent insolvency of a large number of the stockholders has rendex-ed impossible any collection from them.

Although the law provided very rigorous measures to secure and enforce the payment of the instalments under the call, such as pledges on growing crops and the like, it appears that many instalments remain unpaid. It appears further, that by means of large] useless and extravagant expenditures,, in the shape of unnecessary salaries and lawyer’s fees, a considerable proportion of the assets realized have been misappropriated, and that a large deficiency still exists, to supply xvhich an additional call of forty dollars per share has been made by the board of directors under authority of Act No. 20 of 1878.

Without the necessity of passing upon the alleged uucoustitutionality of that Act and of the Act of 1866, under which this liquidation, xvhich was to have legally terminated in 1865, has secured a uew lease of life, it is safe to conclude that, under the effect of its own legislation and under its solemn contract with the stockholders of this corporation, the possession and control of whose assets was taken by the State and administered under her instructions and under her authority, the State alone must be held reponsible for all the acts of maladnxinistration and spoliation, including the unwarranted interference of a fedei'al court, which have together brought about the result with which we are now concerned.

By her own acts the State has placed herself in the attitude of a creditor who accepts the surrender of his debtor and undertakes to husband the latter’s resources. Such a creditor could find no relief in the courts, if his failure to realize assets sufficient to satisfy his claim could be traced to the negligence and mismanagement of his own agents and employees. The neglect of duty and other unauthorized acts of the officers of the State, in this liquidation, have been expressly acknowledged and proclaimed by the legislature in the preamble of Act No. 20 of 1878.

For the reasons given in our previous opinion, the plea of prescription against the unpaid instalments claimed of the defendant, under the Act of 1847, must be sustained.

I, therefore, concur in the decree.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 7872.
    Theresa Baumgarden, Curatrix, vs. Justin J. Langles.
    Evidence as to mental condition, acts and conduct of a party prior ¿o and up to the time of a contract, which would not sustain a proceeding for his interdiction, is not sufficient to establish his incapacity to consent to a contract. The law protects persons physically and mentally weakened by disease, even though not to an extent sufficient absolutely to destroy contracting capacity, against fraud, undue influence and overreaching by persons dealing with, them ; but, in this case, such circumstances are not established as would justify the annulment of the contract on any ground.
    A PPEAL from the Fourth District Court for the Parish of Orleans. Houston, J.

      W. B. Koontz for Plaintiff and Appellant:
    1. A degree of mental derangement, or imbecility of mind, that induces the belief that the party was incapable of fully comprehending the effect and consequences of his acts; or that he is so weak as to be almost an instrument in the hands of the person seeking to obtain the advantage, will avoid a sale. Baldwin vs. Dunton, 40 Illinois Rep. 192.
    2. A contract entered into with a person of insane mind is void for want of consent. R. C. C. 402.
    3. Consent to a contract is void if produced by violence or threats. R. C. C. 1850.
    4. Fraud vitiates all contracts. R. C. C. 1847.
    5. Fraud may be proved by simple or legal presumptions, as well as by other evidence. R. C. C. 1848.
    6. A contract of persons of weak understanding will be held void if the party has not exercised a deliberate judgment, or has been imposed upon, or circumvented by cunning or undue influences. Holland vs. Miller, 12 An. G24; 1 Story Equity Jurisprudence, Section 238.
    7. Contracts with weak minded persons will he closely scrutinized, and a presumption of fraud arises upon proof of over influence, or any advantage, improperly taken, which would not arise in a strong minded person. Chevalier vs. Whateley, 12 An. 652; Story on Sales, Section 182.
    8. A lucid interval is not a simple remission of the disease, hut a temporary cure, requiring time for its development. 6 An. 104.

      Tlios. J. Semines and A. B. Phillips for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

Nicholas A. Baumgarden and Justin J. Langles were, in 1877 and for some years previously, equal partners in the bakery business known as the “ Commercial Bakery.”

On the 31st of December, 1877, by an act of sale passed before Jas. Fahey, notary public, Baumgarden sol'd and transferred to Langles all his right and title in the said business, including the real estate connected therewith and owned jointly by the partners, the assets, machinery, apparatus, book accounts, cash on hand, good-will, etc., for the price of forty-five thousand dollars.

On the 21st of May, 1878, Baumgarden was interdicted, and died, insane, on the 23d April, 1879. His wife was qualified as his curatrix in the interdiction proceedings, and, on the 30th of December, 1878, filed the present action, the object of which is to annul the sale above mentioned, on two grounds:

1. Notorious insanity at the date of the sale, rendering Baumgarden incapable of validly consenting thereto.

2. Fraud, in that defendant, being well aware of Baumgarden’s mental weakness, took advantage thereof and, by threats, improper influences, and false and fraudulent representations, induced him to make said sale for a price much less than the value of the thing sold.

As to the first ground, a careful study of the record convinces us that a proceeding for the interdiction of Baumgarden, based upon the evidence therein contained as to his mental and physical condition and as to his actions and conduct prior and up to the date of this sale, must necessarily have failed.

This is the first test to be applied in a case of this kind. Evidence which would not avail to provoke a decree of interdiction is insufficient to establish a decree of insanity or mental imbecility destroying a person’s capacity to contract. More than this, however, is required to invalidate the contract on this ground; for, under the Code, for this purpose it is necessary not only to establish the mental incapacity, but also that it was notorious, or, at least, that “the person who contracted with him was acquainted with his incapacity.” C. C. 402, 1788, Section 2.

Both of these elements are certainly wanting in the instant case; for the question now in hand is not whether Baumgarden was, to a certain extent, mentally and physically weakened by disease, but whether he was so affected to a degree rendering him incapable of validly consenting to a contract and so a fit subject for interdiction.

It is to be borne in mind that Langles stood in relations with Baum-garden which rendered his dealing with him rather than with another a matter of necessity and not of choice. He was his partner. He desired to terminate that partnership and to liquidate its affairs. He had a legal right to do so. He had the right to do so by amicable agreement, if Baumgarden was mentally capable of contracting. The question, then, for him to determine was whether Baumgarden was so capable. If he believed him to be so, and if he was not notoriously otherwise, he had the right to contract with him, and such contract cannot be annulled for want of capacity to contract.

Baumgarden’s infirmities and Langles’ knowledge of them, far from being obstacles to entering into such a contract, were powerful and proper motives inducing thereto, because they impaired the value of Baumgarden’s services to the partnership; and unless those infirmities were such as rendered him legally incapable of contracting, and Langles knew them to be so, their existence and Langles’ knowledge of them were not sufficient, per se, to annul the contract.

We fully recognize the fact, however, that a person may be mentally and physically weakened by disease, without being legally incapaci- • tated to contract, and the law extends its sheltering arms over such persons to the extent of scrutinizing contracts made by them and protecting them from imposition, undue influence, improper advantage and other fraudulent conduct by persons dealing with them. Holland vs. Miller, 12 An. 624; Chevalier vs. Whately, id. 652.

Undoubtedly, the condition of Baumgarden was such that, if we were satisfied that Langles had been guilty of such conduct, we should not hesitate to afford relief. We find no concealment, no misrepresentation, no threats, no improper influence, and no advantage.

The proposition to sell out came originally from Baumgarden. Langles’ offer of a price was a give or take offer. Baumgarden, shrewdly and intelligently, insisted' upon and obtained more advantageous terms. The transaction was conducted openly and with the knowledge of his wife and friends, and finally executed under the supervision of his selected friend and of his lawyer.

The price was not seriously, if at all, inadequate.

Since the appeal herein was taken, Theresa Baumgarden, the curatrix, has died; and the major heirs of herself and of N. A. Baumgarden have openly abandoned the appeal, leaving it to be prosecuted only in the interest of a minor heir. This makes it doubtful if the interest of anyone would be promoted by the annulment of the sale, and we are certain that the law and evidence of the case do not support the demand to that effect.

Judgment affirmed at appellant’s cost.

Poché, J., takes no part in the opinion, being absent when the argument was made.


author: Todd, J.

text:
    No. 8722.
    Edward W. Burbank vs. The Jefferson City Gas Light Company.
    The plaintiff, tbo bolder of certain bonds of the defendant Company, which bad matured, accepted in renewal thereof new bouds of the Company having ten years to run, secured by mortgage on all the property and franchises of the Company, under an express contract that the Company would procure the passage of an act of the General Assembly at its next ensuing session thereafter, validating the mortgage given, so far as it included movable property, and this condition was the consideration for the extension granted. The plaintiff sues on the new bonds, alleging that they are exigible because of the failure of the Company to have the act passed. On exception that there was no cause of action, for the reason that tlio act in question would have been unconstitutional, and the condition was, therefore, impossible, held, that there was a cause of action, and a general act to effect the desired object would not he repuguaut to the Constitution.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      Gluts. 8. Mice for Plaintiff and Appellant:
    1. The defendant having proposed, and the plaintiff having assented to the renewal of cortain bonds held by him, on certain terms and conditions, the condition, not happening within the time limited, is considered as having failed. C. C. 2033; Yeatman vs. Brad well, 1 An; 424.
    2. If the proposal so assented to contained, as claimed by the defendant, an impossible condition, or one contra bonos mores, or reprobated of law, and was, therefore, null, the agreement depending upon that condition, to-wit: to renew the bonds or to extend the time of payment, is null, and the bonds are due and exigible. C. C. 2031.
    3. The stipulation or condition, assumed by defendant, to validate the mortgage given to plaintiff by obtaining the passage and approval of an act of legislature to that end, is not in derogation of Art. 46 of the State Constitution : nor was the act for that purpose necessarily to he a special act. C. C. 1931, 1956; Bev, Sfcat. 692, 2396; Act No. 13 of 1880; Sec. 4, Act No. 125 of 1880; Act No. 102 of 1882.

      Blanc & Butler for Defendant and Appellee :
    1. The agreement in controversy was made in contravention" of a prohibitory law, is therefore void, and without effect. C. C. Arts. II, 12,1893,1893; Constitution of 1879, Article 46, pars. 1 and 14.
    2. Any agreement to influence legislation is against public order and good morals, and is, therefore, null. C. C. Arts. 1895, 231; 4 M. 49 ; 1 An. 176, 419; 12 An. 219; 13 An. 209; 17 An. 261; S. D. pp. 1007, 1008, 1009 ; 21 Wall. 445.
   The opinion of the Court was delivered by

Todd, J.

This appeal is taken from a judgment maintaining an exception and dismissing plaintiff’s suit.

The plaintiff was the holder of a number of mortgage bonds of the defendant Company, dated 10th March', 1870, and maturing ten years thereafter.

These bonds falling due, the directors of the Company adopted a resolution to the effect that, inasmuch as the holders of the bonds bad consented to renew them on certain conditions, tho president of tlie Company be authorized to issue new bonds, bearing date the 10th of March, 1880, due ten years from date, the interest payable semiannually, and secured by mortgage on all the property and franchises of the Company. Then follows the following clause in the resolution, which, as it has an immediate bearing on the point at issue, we quote:

Said act (of mortgage) to contain the further stipulation on the part of this Company, that it will, by its proper officers, obtain at the next regular, or special, as the case may be, session of the General Assembly of Louisiana, the passage and approval of an act to render valid the said mortgage to be granted, so far as the same relates to the movable property and franchises of this Company, not now mortgageable by law of Louisiana, and in case of neglect or failure to do so, that the said bonds and mortgage, which is to import a confession of judgment, shall at once be due and exigible.”

■ The plaintiff, as the holder of 84 of the bonds issued under this resolution, brought suit thereon on the 3d of August, 1882.

Among other allegations he alleged, in substance, that since the issuing of the bonds, and the execution of the mortgage to secure them, there had been both a general and special session of the General Assembly of the State, and the defendant had failed to procure the passage of an act validating said mortgage, as stipulated in the resolution and contract, and that the condition of the extension granted having failed, that the bonds were exigible, and judgment was asked accordingly.

The exception filed to the demand was to the effect that the stipulation in the mortgage, wherein the defendant Company undertook to procure the passage of an act validating the mortgage, so far as related to movable property and the franchises of the Company, was in violation of the Constitution, and the contemplated act was prohibited thereby, and the said condition was, therefore, null and void, and that the bonds were not exigible and there was no cause of action.

This defense seems to be based on Art. 2031, C. C., which is cited by defendant’s counsel. That Article reads :

“Every condition of a thing impossible, or contra bonos mores, or prohibited by law, is null and renders void the agreement which depends upon it.”

Granting that the condition was impossible and, consequently, null, we are not prepared to say that any other result would flow from it than the annulling or avoiding the extended term for their payment and make them eligible at once. But pretermitting any expression of opinion on this point, we do not believe that the condition stipulated was an impossible condition. It is urged that the proposed act would be repugnant to that clause of Article 46 of the present State Constitution which prohibits the General Assembly from passing any local or special law granting to a corporation special or exclusive right, privilege or immunity.

Conceding that a special act in furtherance of the object sought to be attained by the resolution and contract referred to would be obnoxious to this Article of the Constitution, still it was not and is not essential to secure the end in view, that a local or special law to that effect should be passed. The object could be attained by extending, by a general act, to this and other corporations of a like nature, the fight or privilege desired, which, by Acts 13 and 125 of 1880, amending and reenacting Sections 692 and 2396 of the Revised Statutes, is granted to railroad, turnpike and other companies designated. This could be effected by amending those general acts so as to include gas light companies in their provisions.

Such a general act would be no more obnoxious to the constitutional inhibition than those general laws referred to, and which are unquestionably valid.

Viewed in this light the condition referred to was not an impossible one. As to its being opposed to public policy and good morals, so strongly urged by defendant’s counsel, there was no such issue raised by the pleadings, but even had there been, we cannot see that an undertaking to obtain the passage of an act of this nature, not being a contract for a pecuniary consideration to procure special legislation, and not tainted in the least by fraud, corruption or anything wrong whatever, could be deemed as obnoxious to this charge.

We think there was a present cause of action set out in the petition-, and that the exception was erroneously sustained.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed; that the exception be overruled, and the case remanded, to be proceeded with according to law.

Rehearing refused.


text:
    No. 8069.
    William S. Campbell vs. John P. H. Short.
    Ia a contract for the delivery of coal l>y ono of the contracting parties to the other, within a given time, and the contract is silent as to the quantity, parol evidence is admissible to show the real intention of the parties in this respect and to explain its meaning.
    APPEAL from, the Fifth District Court for the Parish of Orleans.Rogers, J.

      Singleton & Browne for Plaintiff and Appellee.

      R. Shackelford and W. S. Benedict for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The plaintiff seeks to recover of the defendant $1,595.20, an alleged balance due for coal sold and delivered during the year 1879. The claim grows out of the following contract:

“ Agreement made and entered into this twenty-third day of October, a. d. 1879, by and between Wm. S. Campbell of the first part, and Jno. P. H. Short of the second part, both of the City of New Orleans.

“ Witnesseth: That the said party of the first part does hereby covenant and agree, for the consideration hereinafter mentioned, to deliver upon the orders of the said party of the second part, within the city limits and with promptness and dispatch, whatever quantity of coal the said Short may order between this date and the 1st of January, 3880; said coal to be choice and well screened Pittsburgh coal, and measure to be determined by a weight of one hundred and eighty-pounds to the barrel, and the party of the second part covenants and agrees, in consideration of the above, to pay the said party sixty cents per barrel for each and every barrel so delivered, and to pay for the said coal monthly, on the first day of each month succeeding the delivery, and not to be indebted to said party of the first part for more than fifteen hundred dollars at anytime.

“As witness our hands to this agreement, signed in duplicate at New Orleans, this 23d day of October, a. d. 1879.

“Signed: Wm. S. Campbell,

Jno. P. H. Short.

“Witness: R. D. Scriven.

“ We jointly and severally guarantee Win. S. Campbell against any loss he may sustain through the failure of Mr. John P. H. Short to fulfil the conditions of the foregoing agreement, this agreement not exceeding the sum of fifteen hundred dollars.

“Signed: William Wood,

Alex. K. Finlay.”

Under this contract the plaintiff delivered to the defendant up to and including the 28th of November, 1879, according to plaintiff’s statement, 4,005 barrels of coal, and according to the defendant’s, 3,195 barrels.

It appears that about the fall of that year (1879) plaintiff had bought of certain coal merchants, A. Lambert & Co., 60,000 barrels of coal, with the privilege of 20,000 barrels more; and this firm to meet their engagements to plaintiff, the price of coal having greatly advanced in the meantime, arranged with the defendant, Short, by which he (Short) sold them orders on plaintiff to the amount of 50,000 barrels, and soon thereafter sold orders to S. S. McCune on plaintiff for 50,000 barrels more. These orders the plaintiff refused to accept, and thereupon brought this suit for the balance due on the coal actually delivered to the defendant up to that time. The defendant, after pleading the general issue, reconvened, and alleging that plaintiff had violated his contract byrefusing to fill these orders to Lambert & Co. and McCune, and in other respects claimed damages against him on account of the loss of profits on these orders and from other causes to the amount of $44,231.25.

There was judgment in favor of plaintiff for $1,239.75, and rejecting the reconventional demand, from which the defendant has appealed, and plaintiff has asked an amendment of the judgment, to the effect of declaring the contract in question cancelled and annulled.

Leaving out of view the contract and its alleged violation, whether by plaintiff or defendant, as respectively charged, we think the conclusion reached by the District Judge, as to the amount or balance owing for the coal delivered to the defendant, as shown by the judgment, is about correct.

In regard to the alleged violations of the contract urged, the plaintiff excuses himself for refusing to fill the two orders for the 100,000 barrels of coal mentioned, on the ground that the defendant had actively violated the contract in two particulars: first, in becoming indebted for coal sold and delivered to a larger amount than $1,500, in contravention of the stipulation in the agreement, and in giving orders for the large quantities of coal mentioned to Lambert & Co. and McCune, against and beyond, as alleged, the true intent, spirit and meaning of the contract.

There is no force in the first proposition. Suffering his indebtedness to exceed $1,500, admitting it to be so, was not an active breach of the contract.

The alleged violation in the other respect mentioned- brings up for consideration the contract itself, its nature, meaning and construction, and the further question, which is the pivotal question in the case, whether parol evidence was properly admitted to show its meaning and intent.

As stated, the contention between the parties is whether the quantity of coal that plaintiff was obliged to deliver under the contract was or not unlimited and indefinite, and whether or not the large orders referred to were within the scope and intent of the agreement;-

The contract is silent as to thé precise quantity of coal that defendant would or could order within the term prescribed. • There are, however, some stipulations therein which seem to point to what was in the contemplation of the parties in this respect at the time they Inade the agreement. For instance, the defendant was to pay for the coal monthly, but was not to be indebted at any time more than $1,500, from which we might infer that his monthly orders were not to exceed that sum. This view is strengthened by the fact that the sureties of the defendant, by their obligation annexed to the agreement, guarantee the plaintiff (quoting therefrom) against any loss he may sustain through failure of Short to fulfil the conditions of the agreement, this agreement not exceeding the sum of $1,500,” evidently contemplating 'that that sum would cover the scope or extent of the entire agreement as to quantity.

- It is well known that the price of coal fluctuates—as in this case plaintiff was to sell the ■ coal to defendant at 60 cents per barrel, and before the term expired it had gone up to a dollar. Are we to presume that it was the intention of the parties that they would stand the risk of these fluctuations in the market to an unlimited extent, utterly regardless how their respective losses or gains might be swelled by the quantity to be bought or sold, and without giving a thought whether it would be in. the power of either party to meet engagements which, in the absence of restrictive language, might assume vast and indefinite proportions? For accepting the defendant's construction of the instrument, he could demand one or a million barrels of coal, or as much as all the mines in the country could supply. Is it not more reasonable to suppose that there was some limit in the minds of the contracting parties when they signed the agreement, and that limit was suggested or fixed by the relative conditions of the parties with respect to the coal trade, in which they were both engaged, and of which conditions they were mutually cognizant at the time? If that be so, then it would seem proper, by way of explaining the contract in this particular,- not adding to it or altering it, that evidence might be introduced to prove these conditions, and in this connection to show how long the defendant had been engaged in the trade, the extent of his business each year or the number of barrels bought or sold by him, and other facts pertaining thereto, calculated to throw light as to the intent or understanding of the parties on this material point. And after scrutinizing the writing and showing these extraneous facts or .circumstances, if there was still doubt, that doubt, it would seem, might be explained away under a well recognized rule of evidence, by admitting proof of what was said by the parties at the. .time on this point, wherein the writing was silent.

The rule referred to is laid down by Greenleaf in these words:

It is a leading rule in regard to written instruments, that they are to be interpreted according to their subject matter, it is obvious that parol evidence must be resorted to in order to ascertain the nature and qualities of the subject to which the instrument refers. Evidence which is calculated to explain the subject of an instrument is essentially different in its character from evidence of verbal communications respecting it. Whatever, therefore, indicates the nature of the subject is a just medium of interpretation of the language and meaning of the parties in relation to it, and is also a just foundation for giving the instrument an interpretation, when considered relatively different from that which it would receive if considered in the abstract.” 1 Greenleaf, Sec. 286; 5 An. 743; 13 An. 25; 19 Wall. 561.

The evidence admitted on this point, and of which the appellant complains, taken in connection with the clauses of the instrument, to which we have specially referred above, leave no doubt that it was in the minds of the parties when this contract was made, to measure the quantity of coal to be delivered .by the quantity that the defendant had been in the habit of ordering in the ordinary course of his business in past years, which ranged from 10,000 to 15,000 barrels.

If this were so, then the drawing of orders for such unusual and immense quantities, under the circumstances shown, might certainly be regarded as violative of the spirit of the contract, and the plaintiff was not bound to fill them.

We think that the defendant, by his conduct and his testimony, evidently felt a consciousness that his acts in these respects were not exactly in keeping and harmony with his agreement. It appears when Lambert & Co. first applied to him for the order mentioned, he declined to entertain the proposition, (as he expressed it) “ so long as Mr. Campbell honorably fulfilled his contract with me.” . And again he says: “I then felt the moral scruples that I might have had in selling Mr. Campbell’s coal (I never doubted my legal right) were dissolved by Mr. Campbell’s actions.” If this were a plain business transaction, by which the defendant had the clear right to demand any quantity of coal he might see fit, and he so understood it, we cannot exactly perceive how there could have been any room for “moral scruples ” in the matter.

We think the conclusions of the District Judge about right, and shall refuse the amendment, and affirm the judgment with costs.

Poché, J., being absent when the case was tried, takes no part.


author: Poché, J.

text:
    No. 8330.
    W. E. Clarke et al vs. P. H. Waters.
    Act Ho. 178 of 1867, entitled, “An Act to establish the office of Inspector of Hay, and to regulate the duties pertaining to same,” created but one office with three persons to perform the functions thereof. Hence, the emoluments of said office, consisting of fees, must in law be equally divided between the three Inspectors composing said office. The action of two of the Inspectors for the purpose of compelling the third Inspector to account for the inspections and collections made by him is a joint notion, in which plaintiffs properly joined in the same action.
    APPEAL from the Civil* District Court for the Parish of Orleans. Lazaras, J.

      B. J). White for Plaintiffs and Appellees.

      Braughn, Buck & Dinlcetepiel and W. 0. Bart for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

The facts which have given rise to this litigation are as follows:

In 1877, W. E. Clarke, M. R. Chew and P. H. Waters were appointed Inspectors of Hay in the City of New Orleans, under the provisions of Sections 3866 ei seq. of the Revised Statutes.

They at once organized themselves into a Board, and adopted rules for its guidance, providing among other tilings for an entry in official books of all inspections and of all collections made, and for an equal distribution among the Inspectors of all the net earnings of the office.

This rule was observed by all the members until April, 1880, at which time the defendant ceased to make returns of inspections made by him and to account to the other members of the Board for the fees collected by him.

The object of this suit is to compel him to make returns since April 24th, 1880, and to obtain an equal distribution of all the earnings of the Board between the members thereof.

Defendant prosecutes this appeal from an adverse judgment.

He calls our attention to liis exception of misjoinder of parties, based-on tbe ground that plaintiffs have eaoh a distinct and. separate cause of action.

The disposition of this exception is almost a decision of the cause on, its merits, which involve the question of joint performance of- duties by the three Inspectors, and of joint interest in the earnings. A correct interpretation of the law creating these public functionaries shows that the Act contemplates, in our opinion, a joint action of the three Inspectors provided for. The object to be accomplished is a proper inspection of hay received and offered for sale in the City of New Orleans, and the act to be thus performed, is one of the functions of the State government. The reason which prompted the appointment óf inore than one Inspector is predicated on the burden of the numorous inspections to' be made, but the law does not thereby contemplate more than one object, or the performance of various and different duties,

' Hence, we conclude, that between themselves the three Inspectors formed a single entity, that their action must be joint, and that they correctly and legally organized themselves into a Board. Their interest being joint, the two members who seek to compel a specific performance of his duties by the third member of the Board, were therefore properly joined as plaintiffs in the suit. The exception was properly overruled.

. These considerations justify the conclusion that the defendant was properly coerced to the specific performance of his duties as-a member of the Board, the existence of which flows not only from the voluntary acts of the three Inspectors, but is the logical outgrowth of the legislation which created that office. We are clear in our conviction that, in providing for the appointment of three Inspectors of Hay,'the law did not intend or contemplate to establish three distinct and separate offices, but, as indicated by its title, the Act contemplated the-establishment of only one office for the inspection of hay, and that the duties or functions of that office should be performed by three officers. As the duties of the office were to be performed by three persons, it was just and natural that the emoluments of the office were contemplated to be divided and partaken of in equal portions by the three persons composing the office.

These views and the evidence in the record justify the conclusions reached by the District Judge.

The judgment appealed from is, therefore, correct and is affirmed with costs*


text:
    No. 8638.
    Mary A. Roberts vs. Joseph Bauer et al.
    The purchaser at a publio sale Is entitled to demand an unencumbered title before being compelled to comply with the terms of the adjudication.
    A mortgage describing the property hypothecated as “un vasto terrain k l'encoignure deq rues Orleans et Bourbon ” will not be hold invalid for want of sufficient, description of the “ nature and situation " of the thing, at the instance of one who has not been misled thereby. , !
    A mortgage made by a mortgagor alone for the security of bonds to be negotiated; is not ab initio invalid for want of a concurring mortgagee. It stands as a valid unilateral contract, but remaining suspended and imperfect until the hondeare issued and negotiated, when the raortgago takes effect, in favor of the holders of the bonds, whose acceptance of the mortgage is sufficiently evidenced by the acceptance of the bonds secured thereby,
    APPEAL from the Civil District Court for the Parish of Orleans, Houston, J,

      Ohs. Lou que for Plaintiff and Appellee. v..

      Jerome Meunier and Ohm. F. Glalborne for Defendants and Appellants.
   The opinion of the Court was delivered by

Fenner, J.

Margaret Mulligan obtained a judgment for money against the Roman Catholic Church for the diocese-of New Orleans, and she issued-.a writ of fi. fa. under which was seized “three.lots of, ground in the Second District in square bounded by Orleans, Bourbon, St. Anne and Royal streets,, designated by'the letters B, C and D, etc,,” of which one lot.formed the corner of Orleans and'Bourbon streets, and the .other two were contiguous to it,'' The Recorder of Mortgages reported as inscribed against said property a.mortgage executed by the Roman Catholic Church for the diocese of New Orleans, granted in favor of all persons holding coupons or obligations, per act before 0. DeArmas, notary, dated January 26th, 1879. to secure the sum of $250,000, interest and cost, etc., on said properly and others.

To remove this encumbrance, Margaret Mulligan took a rule upon the Recorder of Mortgages, the Roman Catholic Church, and on W. E. Murphy, appointed attorney for the absent creditors, to show cause why the Recorder should .not abstain from reporting as against the. property seized the'mortgage above referred to, on-tljip grounds that the lots seized do not appear to have been mortgaged,.and-that no de* saription in the act corresponds thereto.; and that no mortgage has ever been accepted by the bondholders. ■ ■

This rule was made absolute. The property was sold under the fi. fa. and adjudicated to Mrs. Roberts, the present plaintiff. The latter .then caused the property to be sold at auction,.and they were adjudi-, cated to defendants. They rejected the title. The instant suit was brought to enforce their acceptance. Their defense is, that the property is encumbered with the aforesaid mortgage, the inscription whereof has never been legally annulled, and that the judgment on the rule is no protection to them, because the bondholders were not parties thereto and are not bound thereby. The plaintiff retorts that Baid judgment is res judicata against the bondholders, and, if not so, that the mortgage is a nullity for reasons hereafter to be stated.

The claim that the bondholders are concluded by the judgment on the rule is not very seriously pressed and is clearly untenable. The rights of mortgagees would be indeed insecure, if they might be thus annihilated in judicial proceedings to which they are not parties and of which they have no notice.

No text of law is quoted authorizing their valid representation by an appointee of the court, in absence of any designation of them by name, or proof that they are absentees. They were, therefore, not legally represented and are not bound by the judgment. Morris vs. Cain, 34 An. 657.

Plaintiff, however, contends that the mortgage is invalid and null on various grounds, and, therefore, is not a real encumbrance on the property.

1. It is said that, under Art. 3306 C. C., the mortgage is invalid for lack of sufficient description of the nature and situation ” of the immovable.

The act of mortgage is in French, and describes the property as un vaste terrain a l’encoignure de rues Orléans et Bourbon.”

In commenting upon the similar Article, 2129 C. N., Troplong says i “ II ne faut pas apporter esprit trop minutieux dans l’exigence de ces conditions. II suffit que les parties aient employé telle on telle designation qui ne Iaisse pas de doute sur I’identité de l’immeuble.” Troplong Hyp. et Priv. No. 536.

He further shows that the French Court of Cassation has adopted the same view.

Our own Court has given a like application to our Article and, in numerous cases, has maintained descriptions which, under a rigorous enforcement of its terms, would be defective.

In an early case the Court maintained a defective description, saying : “ the defendant cannot complain that he has been misled by the erroneous description of the lot. * * The lot was described with sufficient certainty and in a manner not calculated to mislead, or deceive anyone.” City Bank vs. Denham, 7 Rob. 39.

In a later- case the Court said: the question is, whether anyone contracting with Sims, or in anywise trusting him, or interested as a creditor, would have been misled or kept in the dark by the omission to state the township, range, section, and the quantity of acres in Sims’ tract. We think not, and are of opinion that, in this case, there has been a fair compliance with the requirements of law.” Ells vs. Sims, 2 An. 253; see also City Bank vs. Barrow, 21 An. 396; Consolidated Association vs. Mason, 24 An. 518; Baker vs. Bank, 2 An. 371; Thornhill vs. Burthe, 29 An. 639.

We find but two cases in which the mortgage has been held invalid on this ground, and, in both, there was a total want of description. Edwards vs. Caulk, 5 An. 123; Keiffer vs. Starn, 27 An. 282.

Applying these principles to the case at bar, is it possible that any one contracting with the Roman Catholic Church could have been misled or deceived in this case? We think not. He would have been informed that on a property belonging to the Church, at the corner of Orleans and Bourbon streets, there was a mortgage, and, in contracting about such property, he would naturally be put upon inquiry as whether it was the same as that mortgaged. Nor would he be justified in assuming that the mortgage covered only the corner lot, according to a particular subdivision.

The general terms of the act of mortgage and the words used, un vaste terrain,” would suggest that they included the whole ground belonging in one body to the Church in that situation, without reference to such subdivisions. In point of fact, the registry of the mortgage with this description proved an effectual notice, for when the Recorder was called on for his .certificate of mortgages resting on the property as described in the seizure made under the fi. fa., he did not fail to report this mortgage. Thus, all the purposes of the law were accomplished, and there is no merit in the claim of nullity on this ground.

2. It is next contended that the mortgage is intrinsically null, because it is purely unilateral, and not accepted by any mortgagee.

It was long since decided by this Court, that the formal written acceptance of the mortgagee was not necessary. The acceptance of the note by the payee was an acceptance of the mortgage which it stipulated, and by the delivery of the note the entire contract became complete between the debtor and the creditor.” Ells vs. Sims, 2 An. 254; Citizens’ Bank vs. Ferry, 32 An. 314.

A like view is taken in the French jurisprudence, where the law requires a mortgage to be made by authentic act, and the questiou arose whether the acceptance of the mortgagee must likewise appear by authentic act. The Court of Cassation held, that the authentic act of mortgage could constitute a unilateral engagement and could be regularly made by the debtor alone, and that the law did not require the creditor to accept it by authentic act. In such case, the unilateral contract remained suspended and imperfect until accepted or acted on by the creditor, but authentic evidence of such acceptance was not essential. Paul Pont, Priv. et Hyp., No. 659. . *

■ It is' equally settled that a mortgage may be created, for a debt not yet'contracted, futura obliijationis nomine, and which remains suspended until the debt is contracted. Pothier Hyp. No. 63 ; Paul Pont Priv. et. Hyp. No. 719.

In the case of Shepp vs. Smith, ante, p. 1, we said: “ Whatever perplexities once existed touching the power of a mortgagor to dispose himself of his notes secured by mortgage in favor of a nominal mortgagee, have been effectually dispelled by the ruling in. the case of Merchants’ Ins. Co. vs. Jamison, 25 An. 363; so also 21 An. 3; 27 An. 561.’’

• These principles and authorities settle all the questions raised in this case. ■

The ecclesiastical corporation desiring to raise money, provided for the issuance of certain bonds, to be negotiated, and affected its immovables with a mortgage to secure the same. This was a lawful unilateral engagement, establishing á mortgage to secure..a debt not yet contracted, which remained without effect until the bonds were negotiated and then took instant and complete effect in favor of the holders of said bonds. .

*

The court a qua did not err in receiving parol evidence to establish the negotiation of bonds, and while we cannot but marvel that the proof was not made more complete and satisfactory, we. think it does establish that some of .the bonds weré negotiated.

It was, however, the duty of plaintiff to tender .to .defendants an unencumbered title, and, under the circumstances of this case, she must make that fact clearly appear. She cannot force defendants to accept a doubtful and clouded title.

' There is nothing in the objection that the exact sum ” for which the mortgage is given is not stipulated. The contract itself limits the amount of the bonds to $250,000.

It is,.therefore, ordered, adjudged and decreed that the judgment appealed 'from be annulled, avoided and reversed, and that there be judgment in favor of defendants and rejecting plaintiff’s demand with costs in both Courts.


author: Pochk, J.

text:
    No. 8737.
    The State of Louisiana ex rel. The Administrators of the University of Louisiana vs. E. A. Burke, Treasurer.
    “Warrants issued in favor of the University of Louisiana, of the Agricultural and Mechanical College, and of the University for the education of persons of color, under legislative appropriations made in obedience to Articles 230 and 231 of the Constitution, are entitled to be paid by preference over all other warrautrt drawn on the General Fund, with the exception of warrants issued in favor of constitutional officers whose salaries, are fixed by the Constitution, the latter having priority over ail other warrants drawn on said fund.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Sherburne, J.

      Thos. J. Senimes for the Relators, Appellants.

      J. G. Egan, Attorney General, for the Respondent, Appellee.
   The opinion of the Court was delivered by

Pochk, J.

Relators are endeavoring to obtain a preferred payment of warrants issued in favor of the University of Louisiana, under the acts of appropriation passed by the legislature in the years 1880, 1881, and 1882, amounting together to $22,500.

The rank claimed for said warrants is preference over all other warrants drawn against the General Fund, with the exception of warrants in favor of the Mechanical and Agricultural College, and in favor of the Colored University, which are acknowledged to be of equal rank, and with the further exception of warrants in favor of constitutional officers for their salaries, fixed in the Constitution, which are recognized to be of superior rank.

For answer, the Treasurer denies' the applicability of the writ of mandamus in the premises; denies that he has funds available for the payment of such warrants; avers the preference to be given to the salaries of officers as fixed by the Constitution, and he pleads in bar of this proceeding the judgment rendered by this Court in the mandamus suit of these same relators against the same officer, reported in the 34th Annual Reports, p. 404.

In the other branch of his defense the Treasurer avers, and the record shows, that the only funds in the treasury beyond what is necessary to pay the salaries of constitutional officers is money known as the remitted interest fund, which fund has been tied up in his hands by means of several writs of injunction directed to him and emanating from the Circuit Court of the United States for the Eastern District of Louisiana, restraining him from obeying the mandate of the State Constitution, which directs the use of such fund for the purpose of defraying the expenses of the State government.

This appeal was taken by relators from a judgment denying the relief which they sought.

The plea of res judicata set up by the Treasurer presents itself at the threshold of the case, and naturally calls for our immediate attention.

The relief asked by the relators in their previous case, and which was denied to them by our decree, was payment of their warrants concurrently with all warrants issued to constitutional officers. Their demand in the present case is for preference.ov.er all warrants issued against the General Fund, with the exception of warrants for .salaries of constitutional officers, which are admitted to be of superior rank, and for concurrence with warrants issued in favor of two other institutions of learning. The demand is obviously different from the cause of action disclosed in the previous suit, and hence the plea of res judicata must fall.

The objection that a writ of mandamus will not apply in this case, because the relief sought does not involve the performance of a ministerial duty, can only find its solution in the determination of the right of preference claimed by relators. If a proper construction of the Articles of the Constitution which have a bearing on the question, results in a recognition of the rank invoked for these warrants by relators, it will be manifestly the ministerial duty of the Treasurer to conform to the conclusion thus judicially sanctioned; and it is obvious that a mandamus is the proper remedy to enforce Lis compliance with a judicial interpretation of a constitutional provision. This position was distinctly held by this Court in the case of the State ex rel. Collens vs. Burke, Treasurer, 32 An. 1217.

The status of the warrants in favor of constitutional officers for their salaries, as fixed in the Constitution, is eliminated as an element of discussion in this case, by reason of their acknowledged superiority in rank, as admitted by both parties in the suit, as well as it is shown by the provisions of Act No. 2 of 1880, and by the decisions of this Court in the University case, 34 An. 404, and in the Collens case, 32 An. 1213.

In the latter case it was absolutely demonstrated that the legislature was powerless to defeat the expressed intentions of the organic law, and that the large discretion necessarily vestdd in the legislature as the saving power, is and must be “subject to the control of the Constitution and must only be exercised without prejudice to the rights guaranteed by that highest authority.”

The same reasoning which determined the conclusion in that case, that the salaries of constitutional officers must bo paid by preference, underlied the conclusion reached in the University case in the 34th Annual, that the payment of those salaries must also be preferred to the warrants now under consideration, and now dictates the additional conclusion that warrants issued under a direct mandate of the Constitution must be allowed superiority of rank, out of the same fund, over all other'warrants which cannot be traced to a like direct constitutional source.

After providing for a system of free public education in the State, and after directing the mode of securing the fund necessary to the maintenance of schools wherein the elementary branches should be taught, the Constitution of 1879 contains provisions for the maintenance' of a State University.

The Convention obviously recognized the wisdom of the policy which fosters education in the higher branches of learning for the children of the State ; and in order to carry out this policy, it adopted Articles 230 and 231 of the organic law, which treat of a State University.

With the evident intention of encouraging efforts in.the direction of a more thorough education for the youths of the State, the Convention ordained as follows:

“ The University of Louisiana, as at present established and located at New Orleans, is hereby recognized in its three departments, to-wit: the law, the medical and the academical departments, to be governed and controlled by appropriate faculties.”

“ The General Assembly shall, from time to time, make such provision for the proper government, maintenance and support of said University of Louisiana, and all the departments thereof, as the public necessities and well-being of the people of the State of Louisiana may require, not to exceed ten thousand dollars annually.” (Art. 230.) The other portion of the . Article and Article 231 contain similar provisions for the benefit of the Mechanical and Agricultural College and of the University for the education of persons of color.

The mandate of the Constitution to the legislature, in its requirement for the maintenance and support of the University, is couched in positive lauguage; the amount of the appropriation being the only matter left to the discretion of General Assembly. Now, as the Constitution limited the extent of the taxing power conferred exclusively to the legislative department of the government, and considering that the power Wmake appropriations lodged in the same branch of the government, could; not be limited or circumscribed, it follows, as a logical consequence, that the efficacy of the appropriations contemplated and specially commanded in the organic law were not intended to be affected, and in a measure thwarted by the future appropriations which the legislature, in its discretion, could order or adopt. In other-words, the will of the organic law cannot be reasonably construed to be subservient to the will of the legislature, the mere creature of the former.

It is, therefore, logical to conclude that when the legislature has exercised its constitutional discretion in fixing the extent of an appropriation specially commanded by the Constitution, the appropriation thus made is necessarily clothed with all the characteristics of a con-, stitutional appropriation, and that its payment must be preferred to all other appropriations which emanate purely from legislative enactments adopted under legislative discretionary taxing power, and not. specially directed by the Constitution.

A different construction would eventually deny constitutional protection to those subjects which had been guarded by the special solicitude of the framers of the Constitution.

Our conclusion is therefore favorable to the preference claimed for these warrants by the relators in this case. But we cannot grant the peremptory mandamus which these conclusions might, justify under-ordinary circumstances. ¡

The record shows the want of funds in the treasury presently available for the payment of such warrants. Hence, the impossibility of ordering an absolute payment by the Treasurer out of a depleted fund.

But under Article 3 of the State Debt. Ordinance of the Constitution, the amount of taxes collected for the payment of the coupons of the consolidated bonds maturing on the first of January, 1880, and shown-in this record to amount to several hundred thousand dollars, should have been transferred to defray the expenses of the State government; and such fund would doubtless be available for the payment of the warrants now under consideration, were it not for the interference of the federal court, as above stated.

The object and the effect of the various writs of injunction issued by the Circuit Court of the United States, invoked herein by the Treasurer, have been to restrain that officer from obeying the imperative mandate of the State touching the disposition of funds belonging to the State. It is true, as suggested by the Treasurer in his answer herein, that it was not his duty to disobey these injunctions while they, are in force.

But under the recent decisions rendered by the Supreme Court of the United States, in the cases known as the “Louisiana cases,” it might become the plain and unavoidable duty of that officer to institute the proceedings necessary to obtain the dissolution of injunctions which are stamped with nullity by the highest tribunal of the land and to thus restore the State of Louisiana to her constitutional right to administer and absolutely control her own finances.

Under the peculiar circumstances surrounding this case, we shall issue a qualified mandamus which will secure the rights of relators under the rank of preference which they claim for the warrants held for account of the State University.

We must not be understood as determining in this opinion the legal rank of warrants in favor of constitutional officers whose salaries are not fixed in the Constitution. That question cannot be inquired into until properly presented in a direct issue.

The judgment of the lower court is, therefore, reversed, and it is ordered, adjudged and decreed that the warants issued in favor of the University of Louisiana, under the appropriations adopted by the legislature, in obedience to Article 230 of the Constitution, for the years 1880, 1881 and 1882, are entitled to be paid by preference over all other warrants drawn against the General Fund, with the exception of warrants in favor of the Mechanical and Agricultural College and of the University for the education of persons of color, which are concurrent in rank therewith ; and with the further exception of warrants for the salaries of constitutional officers, as fixed by the Constitution, which are entitled to preference over all other warrants drawn on said' fund.

And it is further ordered that a mandamus issue directed to E. A. Burke, Treasurer, commanding him to pay in the order hereinabove indicated the warrants described in relators’ petition, out of all funds to the credit of the General Fund, derived from any and all sources.

It is finally ordered that the defendant pay all costs in both Courts.