author: Poché, J. Fenner, J. Bermudez, C. J. Levy, J. Fenner, J.

text:
    No. 1096.
    C. C. Duson vs. C. M. Thompson.
    Oases of contested, elections and cases in which tlie right to office is involved, differ materially.

    Therefore, Act No. 45 of the Legislature of 1870, providing for the return of Appeals in the latter cases, does not conilict with sections 40 and 1434 of the Revised Statutes, which are still in force and regulate Appeals in contested election cases. Decisions in Auld vs. "Walton, 12 An., 825, and Lanier vs. G-allatas, 13 An., 175, affirmed.
    Irregularities in Election Returns do not pe)' se vitiate the election, and, if there are means "by which the true vote can he ascertained, such means must be resorted to by the Court before which the contest is pending. After proof made, that the box containing the ballots has not been tampered with, and that the requirements of the law for its custody have been complied with, it is legal and proper for the Court to order that the box be opened and the ballots counted, in its presence; and the result of the election as shown by this counting, should be declared and decreed by the judgment of'the Court.
    PPEAL from the Thirteenth Judicial District Court, parish of St. . Landry. Hudspeth, J.

      Henry L. Garland for Plaintiff and Appellant, and P. P. Perro din, District Attorney for the parish of St. Landry, on the same side.
    Lewis & Bro., B. A. Martel, and A. Bailey for Defendant and Ap-pellee :
    Until the count is over and consigned to the tally and statement-sheets,, and the ballots placed back in the box, the best and only evidence of how electors voted is the ballots deposited by them in the box ; because it is these the commissioners resort to to make out their count, and upon these only do they base their returns.
    Prom the moment that the ballots have been taken out and counted, ■ and the result consigned to the tally and statement-sheets, in a manner substantially in accordance with the forms of law, and the ballots returned to the box, these returns become the best evidence of the manner in which electors voted, and the ballots in the box become secondary evidence, and are to be used only under certain conditions and circumstances.
    The condition upon w'hich they may be used in evidence, in a contest, is the laying a legal basis. To do this, the contestant must allege and satisfactorily prove that the returns are illegal, because — 1st, the same are fatally defective in form ; 2d, or falsely state the contents-of the ballots as drawn out of the box; 3d, or that they have been subsequently so falsified and altered as not truthfully to represent the contents of the ballots as they were when taken out of the box and counted. This being done, the contestant must show affirmatively that the box has been kept in accordance with the requirements of the statute ; that it has not been handled by unauthorized persons ; that it could not have been tampered with by anybody ; and, lastly, he must conclusively establish the identity of the box.
    The decision of the judge of the lower court, that a legal basis had been laid for the recount, is not conclusive upon the jury. It was a ruling upon the sufficiency of evidence'. Nor is any appeal necessary from such an interlocutory order, rendered in the course of the trial of a contested election case.
    In a contested election case, where only a majority of the jury may render a verdict, if the evidence be contradictory, the unanimous verdict of a jury of the vicinage, upon questions of fraud, credibility of witnesses, and other facts peculiarly within its province, will not be disturbed unless manifestly erroneous.
    AUTHORITIES.

      Pleadings — R. S. see. 1419; Brightly’s Leading Cases, Eneas’ case, p. 360; Clark & Hall’s Contested Election Cases, Ya-rnum’s case, p. 112,. Leib’s case, p. 165; McCrary’s Law of Elections, sec. 281.

      Recount — Brightly, Kneas’ caáe, p. 360; McCrary’s, sections 277,'278, 279, 280, and 291. Bartlett’s Contested Elections, Robin’s case, p. 138, Archer’s case, p. 169, Yerree’s case, p. 381, Klein’s case, p. 574. Cooley on Constitutional Limitations, p. 789.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

This is a contested election case, growing out of the election held in this State on December 2,1879. From the verdict and judgment rendered in favor of defendant plaintiff has appealed, and defendant moves for the dismissal of the appeal on the ground that it was not made returnable ten days after judgment, which was rendered on March 5, 1880, the appeal having been made returnable on the first Monday of July of the same year.

The return-day was suggested and fixed on appellant’s own. motion, and suggestion, and the district judge overruled appellee’s motion suggesting a change of the return-day from the date fixed to ten days after the rendition of the judgment.

Appellee contends that this appeal should be governed by and comply with the provisions of law' contained in section 7 of Act No. 45, approved March 16,1870, which section reads as follows :

“ That .in all cases in which the right to office is involved and an appeal is taken from the judgment of the lower court, it shall be returnable in ten days after judgment of the lower court, and the Supreme Court on the motion of either party shall proceed to try the same by preference.”

And it concludes with the usual repealing clause.

On the other hand, plaintiff contends that his right to this appeal should be tested under the provisions of the act of 1856, incorporated in our Revised Statutes as sections 40 and 1434, which provides in substance :

“ That in all contested elections brought before the courts of this-State, the party cast shall have the right of appeal to the Supreme Court as in other civil cases, etc.,” and that “ such appeal shall be considered suspensive in its operation and effect, any law to the contrary notwithstanding and he contends that this act is not repealed by act 45 of 1870, which covers only judgments rendered in cases involving title to. office; that the two statutes are not on the same subject matter, and that the latter law, not affecting the former, does not repeal it, either directly or by implication.

The question presented for our solution is, therefore, whether the-act of 1856 is in conflict or inconsistent with section seven of Act No. 45 of 1870.

Defendant urges that the right to office is the very issue involved in all contested election cases ; that there is no difference in law or in fact between the two classes of cases ; and that the last expression of legislative will regulating appeals in cases involving title to office should alike govern contested election cases, and that the act of 1856, containing a different rule for appeals, is necessarily inconsistent with tbe act of 1870, and is for that reason repealed and inoperative. This identical proposition was reviewed and discussed in 12 A. 825, and 13 A. 175, wherein the Court interpreted the act of 1853, which was re-enacted in 1855, and contains the identical provisions subsequently enacted in section 7 of act 45,1870, in connection with the act of 1856, now found in sections 40 and 1434, and the Court reached a different conclusion than that contended for by appellee’s counsel in this case. But counsel claim that the Court, then composed of some of the brightest intellects and most learned jurists which have ever honored our bench and bar, signally erred in both cases, and they confidently expect us to overrule the rulings on this point in both cases.

We are constrained to disappoint appellee and his counsel in their expectation. The issue in a contested election case is not a title to office, which may result therefrom, but not necessarily, for the decision may decree that neither party is entitled to the office, by reason of the absolute nullity of the election, as was the case in 13 A. 175. We understand that in such cases the inquiry is directed to the manner and form in which the election was carried on, and in which the results were returned, announced, or promulgated. The action must be begun before the induction of the candidate returned as elected, and the action can be maintained, and the inquiry gone into, only when prayed for in a petition signed by at least twenty voters of the parish.

Under our present laws, a case involving a title to office is an inquiry instituted by the State itself, and is intended to test the right to office of a party already in office by appointment or otherwise. It may be instituted by the proper law-officer, without joining as party plaintiff the person who may claim to be entitled to the office in contest.

We conclude that the two classes of cases are materially different, and that appeals therein are and must be regulated by different laws ; in other words, “ that all appeals in cases of contested elections must be considered as falling within the- general rule applicable to appeals in all civil cases.” 12 A. 826.

We are fortified in our conclusion by the interpretation given to these various enactments by our immediate predecessors in the unreported case of “the State ex rel. John Young vs. Judge of the Thirteenth Judicial District,” decided in May, 1879. In that case, relator, who had appealed from a judgment rendered in a case of contested election, applied for a mandamus to compel the District Judge to order the appeal to be returned in ten days, and urged the same reasons now used by appellee for the dismissal of the appeal in this case. The mandamus was refused on the ground that appeals in cases of contested elections should be returned as in all civil cases.

’ After quoting approvingly from the two decisions in the 12th and 13th Annuals, Chief Justice Manning, as the organ of the Court, says :

“The act of 1856 thus referred to is the law regulating this subject now. It was re-enacted in iotidem verbis, and forms section 1434 of the Revised Statutes of 1870, just as the act of 1853 (p. 250) declaring that appeals in cases where the right to office is involved shall be returnable in ten days, is re-enacted in totidem verbis, and forms section 33 of the same Revisal, and was repeated in the same year, and forms section 7 of the act of March 16,1870.”

The motion to dismiss is therefore overruled.

On the Meeits.

At the general election held throughout this State on December 2, 1879, C. C. Duson and C. M. Thompson were competing candidates for the office of sheriff of the parish of St. Landry.

Thompson having been returned as elected by the recorder of the parish, acting as returning officer of election for that particular office, Duson at once began proceedings to contest the election.

In his petition of contest, which is supported, as the law requires, by a petition of at least twenty voters of the parish, he charges several irregularities and illegalities which go to invalidate his opponent’s election, but he subsequently has abandoned all other grounds, and on appeal he relies exclusively on the following ground of alleged nullity :

That the votes cast at the third ward poll, known as the Leonville precinct, were not legally returned, in this, that on the day following the election the commissioners of that poll handed to the clerk of the court a document purporting to be their return from said poll (which we shall designate as No. 1), showing the following vote for sheriff: Thompson 128, Duson 75. That later on the same day the commissioners illegally re-opened the box which contained the ballots cast at said poll, and which had been locked, sealed, and delivered by them, as the law required, to the clerk of the court, and took from said box another document, purporting to be a return of the votes cast at said Leonville box (which document we shall designate as No. 2), showing the following-vote for .sheriff: Thompson 164, Duson 31. That by the illegal addition of document No. 2, as a return of votes, the result of the whole vote of the parish was changed to his detriment; the whole vote of the parish, including the vote shown by document No. 1, being as follows : Duson 2914, Thompson 2841, or a majority of 73 for Duson.

Plaintiff complains of the act of the returning officer in receiving or compiling the second document purporting to be a return, and alleges that a written statement signed by the commissioners on the 8th of December, in which they certify that both documents or tally-sheets should be considered as a continuous' return of the Leonville box, is a nullity, and should not be considered in the compilation of the votes cast at said election, and charges that the compilation made by said returning officer was erroneous, illegal, null, and void.

To this petition the defendant Thompson answers. He denies that the compiled statements originally returned by the commissioners of election give a majority of votes to the plaintiff. He denies that any amended return of the election at the Leonville poll was made. He denies that the recorder, in making his returns, either considered or used any amended return from that poll. He alleges that the recorder, in compiling the returns of the votes cast at Leonville, took into consideration and based his returns exclusively upon the original returns deposited by the commissioners of election at said poll with the clerk of court and sheriff of the parish ; that said original returns consisted of two sheets, one which is admitted to be a tally-sheet, and the other, though erroneously styled and headed a statement-sheet, is in fact also a tally-sheet, and that the tallies on both sheets must be added together in order to ascertain the total vote cast for sheriff, as well as the vote for all other officers voted for at that poll; that the two taken together constitute the true list of tallies of the votes at said poll, the one being a continuation of the other; that such was the true intent and purpose of the commissioners, as intrinsically shown by the returns themselves, and by their explanatory certificate, which plaintiff erroneously styles an amended statement of votes ; that the commissioners at said poll,'from a want of knowledge of their duties, neither made nor returned a statement of votes, but made and returned only tally-sheets, an error and omission of frequent occurrence in this parish.

The case was tried by a special jury, who, after a protracted trial, found in favor of defendant in a verdict which for its unusual style and novelty is reproduced in full:

“ The special jury empaneled in the above entitled suit, having in full view the great importance of the public interest involved in this case, and the sanctity of our oaths, and after fully and conscientiously weighing the' evidence as elicited, and the law applicable to the case, do find that the majority of the good people of the parish of St. Landry ■did, on the 2d. day of December, 1879, cast their ballots for O. M. Thompson for the office of sheriff of the parish of St. Landry ; and such being the case, the said O. M. Thompson is entitled to the said office, its responsibilities, duties, privileges, and emoluments. Witness our hands, ■duly signed and indorsed on'the back of this verdict.

“ C. O. Hundley, Foreman; B. E. Hardesty, Fremont Dupré, Acdoille Fontenot, H. Frilot, Edmond Savant, Delosiar May, Ohas. S. Hollier, W7 A. Sandoz, Martin Jones, Thos. D. Cooke, Stephen Stuart.”

From the judgment rendered thereon plaintiff appealed.

The record discloses the following facts and incidents connected with the election at the Leonville poll, and the manner of holding the •same, and of making returns thereon, and which are not disputed by either party:

The election was not held by the three citizens appointed as commissioners by the Police Jury (Rogers, Déjean, and Robin), but by F. C. Garriere, Félix Boudreau, and J. D. Higginbothan, who were selected and sworn as such by one A. L. Durio, justice of the peace, at about '7 o’clock a. m., at which time the appointed commissioners had not yet made their appearance, and it being rumored that they would not act.

After the election was closed, the commissioners, assisted by other citizens, proceeded to count the votes, after which they went together to the courthouse at Opelousas with the box and two duplicate tally-sheets, one of which they delivered to the sheriff, and the other to the clerk. The duplicate which they handed to the clerk is the document designated as No. 1, and it is written on what is technically known as a statement-sheet, on which is a printed statement, subscribed and sworn to by the commissioners, reciting in substance that the votes tallied thereon are the votes cast at the Leonville precinct on the 2d of December, 1879, for and against the ratification of the Oonstitution, for and •against the State debt ordinance, for Governor and other State officers, and for all parish and ward officers which are therein enumerated.

They arrived at the courthouse at about 8 o’clock p. m. .on the 3d of December, and delivered this document and the box without delay, taking ■the clerk’s receipt for the same.

A short time thereafter the three commissioners returned to the ■clerk’s office, asked and obtained from him possession of the box and of the key, re-opened the box, and taking therefrom the document herein-•above designated as No. 2, written on a sheet technically known as a tally-sheet, containing in substance identically the same declaration, signed and sworn to, as that in document No. 1, handed the same to the clerk, who placed it in his office along with the document first •described.

It appears further that on the 6th of December the recorder of the parish, who under the law was the returning officer of election for the office of sheriff, as the then sheriff was a candidate for re-election, proceeded to compile the returns of the votes cast for said office, in the whole parish, and to make return thereof to the Secretary of State, and that in compiling the vote of the Leonville precinct he considered and counted the two documents hereinabove described as one return, or as a continuous statement of the votes cast for sheriff at that precinct; and which two statements added together make up the following vote : Thompson 292, Duson 106 ; and it also appears that the vote as thus counted, added to that of all the other precincts of the parish, foots up the following final result for sheriff: Thompson 3005, Duson 2945, or a majority of sixty for Thompson. The record also shows that on the 8th of December the three commissioners subscribed and handed to the clerk a written statement, in which they declared in substance that the two sheets handed by them, as above recited, to the clerk, are one continuous tally-sheet, and that the two sheets must be added together to show the full vote received by each candidate at the Leonville precinct.

All other allegations, charges of fraud, irregularities, and counter charges of conspiracies to swindle, and of ballot-stuffing, contained in the pleadings, are strenuously advanced and positively denied by the respective parties, who introduced, on each side, countless documents and numerous witnesses, all of which forms a voluminous record of bitter venom and galling acrimony which it is fortunately unnecessary to consider for a correct decision of this cause. The election of 1879 was carried on under the provisions of Act No. 58 of the Legislature of 1877, extra session.

Section twenty prescribes that the election shall begin at 7 o’clock a. m. and close at 6 o’clock p. m.

Section fourteen provides that if within one hour after the time fixed none of the commissioners appointed by the police jury has made his appearance, the persons present shall hold a meeting and select three commissioners to preside at the election.

In this case the commissioners at the Leonville precinct were selected by one individual, A. L. Durio, and without allowing to the absent commissioners the' delay of one hour required by the section quoted.

It is conceded that no violation of a directory law on elections shall vitiate the election, but this irregularity is shown for the purpose of establishing the continuous and wanton violation of law which characterized the foundation, as well as the crowning act, of the election held at that precinct. No attempt is made by the defendant to explain, much less to justify, this unusual and illegal haste to organize a poll during the absence of the regularly appointed commissioners; the rumor to the effect that these commissioners would refuse to act, for the reason that on a previous similar occasion the parish had refused or failed to compensate them for their services, is no justification of this flagrant irregularity, and as the instigator of the proceeding, Duri'o, is shown by the evidence to have been a political foe of Duson, his motive is easily conjectured; and the subsequent conduct and acts of Commissioner Carriére, at whose house he had slept on the night before, shows that he was wise in the selection of his man in order to carry out his design.

But proceeding further, the question to be solved is this, which of the two documents handed by the commissioners is the legal return of the votes cast at the Leonville precinct ? or is there any return at all from that precinct? While conceding that the correct rule in American elections favors a liberal construction of laws governing returns of elections, and that to give effect to the vote of the citizen, the violation of a directory law by an officer cannot justify the rejection of the votes cast at the polling-place, yet it is equally clear, as stipulated in section 19 of act 58 of 1877, that the election is vitiated where it is impossible to decide what candidate received the majority of votes at the polling-place where the election is contested.

It is also an elementary rule of law that when an act is to be done in writing the instrument must make proof of itself, and this rule is essentially applicable to returns of elections. The rule is laid down by McCrary, Law of Elections, section 82, in substance as follows : “ The canvassing or return judges must receive and count the votes as shown by the returns, and they cannot go behind the returns for any purpose, and this necessarily implies that if a paper is presented as a return, and there is a question as to whether it is a return or not, they must decide that question upon the face of the paper itself.”

If in this case the recorder acting as returning officer in the election for sheriff had been guided by this rule, when he came to consider the effect of the two documents which are described above he would have seen that both documents purported to be separately and singly the return itself of the votes cast at the Leonville precinct; neither paper could by itself show that it was the return, to the exclusion of the other, and neither of the documents shows on its face, or contains in any shape or form, any information, statement, or indication tending to show that the one was the beginning, and the other the continuation, of the return or statement of votes polled at that precinct, so as to justify the addition of the two together, so as to get at the correct vote polled ; the very reverse appears, because to each document is appended the sworn declaration of the three commissioners that the votes therein tallied and added are the votes that were deposited in the box on the 2nd of December, 1879.

Where, then, did the recorder obtain his information that the two sheets added together contain the votes cast at the Leonville precinct on that day ?

Defendants deny that the officer derived his information from the statement subscribed by the commissioners-on the 8th of December, in which they pretend to convey that information. Admitting this theory, the question recurs again as to his source of information in the premises. It must then be from the verbal statements of the commissioners, or of one or two of them. If such is the case, he then received evidence out of or dehors the paper itself, or of the two papers separately or jointly, and in thus doing he performed an act reprobated and forbidden by law. It will not be gainsaid that after delivering their returns and the box to the proper officer the official existence of the commissioners was at an end, and they became functi officiis. Their appointment encompasses the performance of a special duty, the completion of which fixes the term of their official capacity. Cooley in his Constitutional Limitations, p. 623, says of boards of canvassers: “ The board themselves having once performed and fully completed their duty, have no power afterward to reconsider their determination and cometo a different con-' elusion.” This is a fortiori the case with commissioners, whose duties under our laws are to be performed and completed, if possible, in one day. It is therefore safe to conclude that the three defunct commissioners had no power or authority in law to re-open the box after delivery thereof to the clerk, and to take therefrom the second sheet which they handed to the elerk, and which was subsequently considered by the returning officer as a statement of votes ; and that their written statement of December 8th was a puny usurpation of official authority from which no legal effect can flow and no legal deductions be drawn.

It therefore follows that the returning officer erred in giving effect to both sheets, purporting each to be returns of election from the Leon-ville precinct. It is admitted by the defendant that the commissioners did not even pretend to have made, sworn to, and delivered the compiled statements required by section 32 of the election law, ard that their only returns were the tally-sheets under consideration. Under that law the compiled statements should' be and are required as the best evidence, the custom invoked by defendant to the contrary notwithstanding. But in the absence of the best evidence, the returning officer was perhaps justified in having recourse to and considering secondary evidence. And this, in the nature of things, would or should have been the tally-sheet required by law to be kept in duplicates. And here recurs again the difficulty which the officer had to bridge over when he met the two documents purporting each to be the statement of the votes cast at that precinct.

Any impartial mind, unaided by evidence aliunde or guided by ■lights beyond the papers, would find it impossible to solve the problem as to whether No. 1 or No. 2, or the .two together, should be considered as the correct statement, and would therefore find it impossible from the face of either or both of the papers to decide which candidate had received the majority of the votes cast, and the same impartial mind, guided by our own election law, by McOrary on Laws of Election, in sections 302 and 304, where he provides a remedy in face of the impossibility of ascertaining for whom the majority of votes were given, and by our own Supreme Court in 29 A. 610, rejecting the return of a precinct because the polling-place was changed without due notice to the voters, would irresistibly conclude that both documents, No. 1 and No. 2, should be rejected as secondary evidence to supply the absence of the primary evidence, consisting of the compiled statements required by section 32 ; •and that therefore there was-no legal return of the election held at the Leonville precinct; and this conclusion the Court is bound to adopt.

But under American authorities, in order to seek and give effect to the will of the voters of that ward, other evidence, if at hand, or within reach, could and should be used to supply the wanting returns. This evidence was tendered by plaintiff, who prayed the court to open the box and recount the ballots therein found.

Cooley, Constitutional Limitations, says : But back of this prima facie case (made by the certificate of election) the courts may go, and the determination of the State Board may be corrected by those of the district boards, and the latter by the ballots themselves, when the ballots are still in existence and have been kept as required by law.”

To that end our statute requires that the boxes, locked and sealed, be delivered in the custody of the clerk, who shall keep them in his possession in the same condition for six months after the election.”

Alleging that the ballots had been kept as required by law, plaintiff moved, and the District Court ordered, that the Leonville box be •opened and the ballots therein recounted.

Defendant objected, and has retained his bill of exceptions to the •adverse ruling of the court.

While the evidence introduced in support of plaintiff’s motion does •show that the box opened was the identical Leonville box, yet justice can be done to the parties without formally passing on this bill of exceptions. Defendant has offered no other evidence, and, under our system ■of voting by secret ballots, none was within his reach, to show, without the legal returns, without the duplicate tally-sheets, without a recount of the ballots, what number of votes had been cast for Mm at the Leon-ville box.

By recounting the box, as shown by the tally made under the directions of the court, the result would show Duson elected by a majority of twenty-eight. If the court erred in re-opening the box and recounting the ballots, there are then no returns from the Leonville box, and that shows a result electing Duson by a majority of one hundred and twenty-six. '

The dilemma is fatal to defendant’s position, and utterly destroys hie prima facie election.

In reference to the appeal taken by the parish of St. Landry, complaining of that part of the judgment which condemns the parish to-pay the costs of this suit, we find that our predecessors had so decreed' in two celebrated cases, and we concur in the reasons which prompted their ruling. 'We are of opinion that Act No. 59, of April 5,1880, can have no effect on this cause, which was then pending, and we shall not disturb the judgment in that particular.

It is therefore ordered, adjudged, and decreed that the verdict of the-jury be set aside ; that the judgment of the lower court in so far as it decrees C. M. Thompson as elected sheriff of St. Landry be avoided,, annulled, and reversed, and in other respects that it be affirmed; and it. is further ordered that Oornelius C. Duson be decreed to have been legally elected sheriff of the parish of St. Landry at the election held on December 2,1879.

Dissenting Opinion.

Fenner, J.

Stress of official engagements and the extremely limited' delay allowed after the conclusion of the earnest deliberations of the-Court upon this important case prevent me from stating, with the fullness which I would desire, the reasons and legal principles upon which I basó my dissent from the opinion of the májority of the Court in this, case. The doctrine quoted in the majority opinion from McCrary on Elections, that “ canvassing and return judges must receive and count the votes as shown by the returns, and cannot go behind the returns for any purpose, and this necessarily implies that if a paper is presented as-a return and there is a question as to whether it is a return or not, they must decide that question from what appears upon the face of the paper itself,” is undoubtedly correct within the limits of its application. But it applies only to the functions of canvassing and returning officers,, which are purely ministerial, and not judicial, in their nature. The same rule does not, however, in my opinion, control the action of a court of' justice exercising judicial functions in the determination of cases of contested elections. On the contrary, the same author, in treating of' judicial proceedings in such cases, distinctly declares that “it is impossible to define exactly the degree of irregularity and illegality in the-conduct of an election which will render it void ; but perhaps the best rule upon the subject is this, if the voice of the electors can be made to appear from the returns, either alone or aided by extrinsic evidence, with reasonable clearness and certainty, then the election should stand, but not otherwise.”

While I am not prepared to say that the recorder, acting merely as a returning officer, was justified in accepting either or both of the papers returned by the commissioners of election as a return, in view of their apparent contradictory character, and in absence of any power on his part to explain them by extrinsic evidence, I still think the court had the right to receive such extrinsic evidence as to these documents, for the purpose of establishing their genuineness, their meaning, and their relation to each other.

The evidence received without objection cbnclusively establishes that these two papers were both prepared and signed by the commissioners of election ; that they were returned to the proper officer, at the same time, the one outside, the other inside, the ballot-box ; that the lattér was taken out of the ballot-box by the commissioners themselves, in presence of the officer in custody thereof, and immediately delivered to him ; that its inclusion in the ballot-box was the result of an accident; that the two documents taken together showed the result of the count of the ballots as ascertained by the commissioners, and constituted the return made and intended to be made by said commissioners.

I think it clear that from these returns, thus aided by extrinsic evidence, the voice of the people, as shown and intended to be shown by the return of the commissioners, is made to appear not only “ with reasonable clearness and certainty,” but with absolute certainty.

I think these returns, thus established and explained, are entitled to the same weight which would be attached to a regular return showing the same result, perfect in form, and complying with all the technical requirements of law.

The effect of the return was to establish a prima facie case in favor of the election of the defendant herein, subject to the right of plaintiff herein to impeach the same. In order to overthrow this prima facie •case by a recount of the ballots in the ballot-box, it was necessary to •establish satisfactorily the identity of the box, that it remained in the same condition in which it was at the moment when it passed from the hands of the commissioners, and that its contents had not been altered ■or tampered with.

This was among the issues submitted to the jury. Yoluminous ■evidence was submitted, full of contradictory and irreconcilable statements of witnesses on either side.

Fraud had unquestionably been committed on one side or the other; either in the counting and returns of the votes by the commissioners, or in the manipulation of the ballot-box after its delivery by the commissioners. I consider it unnecessary for me to make an original determination of this disagreeable question.

A jury, the fairness of whose composition is not questioned, taken from the vicinage, acquainted with the witnesses, and familiar with all the surroundings of the transactions, determining questions péculiarly within the province of a jury to determine, have rendered an unanimous verdict in favor of the defendant.

I cannot find a sufficient reason in the evidence to justify me in disturbing their verdict.

Mr. Justice Todd concurs in this opinion.

On Application eor Rehearing.

Bermudez, C. J.

The majority of the Court seeing no reason to disturb the decree previously rendered herein, it is ordered that the petition for a rehearing herein be refused, and that said decree now become final.

Concurring Opinion.

Levy, J.

On a careful consideration of the application for a rehearing, and after examination of further authorities applicable to the case, I am of the opinion that it was competent for the District Court, on the trial of this contested election suit, to receive testimony going to show or establish the fact that the two papers or statements purporting together to constitute the return of the Leonville box, did constitute the proper return, and that for the purpose of showing this fact extrinsic evidence could be received. I think that the irregularities as to the returns are not fatal and do not justify the exclusion of the votes cast in that box, but that it was competent to resort to a count of the ballots which had been deposited in the box, for the purpose of ascertaining the true voice'of the voters, as expressed by the ballots themselves. While the law points out certain formalities to be observed as to the returns of the commissioners, a failure to comply with its directions does not per se vitiate the election, and if there are means by which the true vote can be ascertained, such means must be resorted to by the court before which the contest is pending. In this case the irregularities and uncertainties as to the validity of the return of the Leonville commissioners, the doubt arising on their inspection and on their faces as to whether either of the papers was, of itself, an entire return, or whether both together made up and constituted the legal return, justified the introduction of extrinsic evidence to prove the facts in regard to these returns. If irregularity in the returns or errors of form therein cannot be explained by extrinsic evidence, and irregularity and error are fatal defects, which operate to vitiate the election, it would follow by logical reasoning that when the returns are regular in form they will be conclusive, and, being on their face correct, cannot be attacked. The consequence would be that the voters would be bound by the returns of the commissioners, and bad or corrupt men could with impunity, if they were so disposed, substitute their will, as set forth by their returns, for that of the people, and these returns, being sacramental, could not be attacked or even investigated, either with a view to show their incorrectness through fraud, or otherwise, or on the other hand to establish their correctness, and the right of contest would then be a barren right, from which no remedy could follow. In this case the' issues as to the regularity or irregularity of the returns being before the court, the allegations of fraud, error, etc., being also made, and evidence on that score introduced, the court had the right and properly resorted to the means of determining the true vote cast at the Leonville poll by opening the ballot-box and counting the ballots. To justify this, and to entitle the ballots to consideration as evidencing the true vote, it was necessary to prove that the box containing them had not been tampered with, that its contents were the same as when sealed and closed by the commissioners, and the requirements of law as to its custody and preservation had been complied with. The ballots in this box were counted in court in presence of the judge and the jury. This count showed a different result from that set forth in either of the statements or returns, or in the aggregate statements, if construed and taken together, or in the return of the recorder. The question then to be decided was whether the recorder’s return, based upon these statements of the commissioners,, was the true return of the votes east at the Leonville poll, and did the ballot-box contain the ballots as cast by the voters at that poll, and had' it or not been tampered with. A careful examination of all the testimony satisfies me that the box opened in court contained all the ballots which had been cast on the day of election at the Leonville poll, and none others ; that it had not been tampered with, that the ballots counted on the trial were the ballots as cast by the voters, and that the result of these votes was 145 for Duson and 243 for Thompson, and these being respectively added to the votes received by them at the other polls of the parish, viz.: Duson 2839, Thompson 2713, gave Duson 2984 and Thompson 2956 votes, and Duson was therefore elected by a majority over Thompson of 28 votes. The testimony shows that the box was in the custody of the proper officer and his deputies, and the presumption that officers perform their duty, under the maxim as applicable to them, “ Omnia- presumuntur rite acta,” is justified by their positive testimony that the box had not been tampered with, and that it was produced and opened in court on the trial of the case just as it was received by them from the commissioners. Consideration of all the testimony adduced as to the identity of the box and absence of interference with the ballots convinces me on these points. ■ I cannot allow mere surmises and vague suspicions, unsupported by positive testimony or substantial facts, to outweigh the evidence which has convinced me. While not in any manner assailing the integrity of the jury or the sincerity of their belief in the correctness of their conclusions on the. facts and testimony, and disposed to accord great weight to the finding of j uries on questions of fact submitted to them, I am still compelled on my own investigation and consideration of the facts and testimony in the record to differ with them in my conclusions, but diffidence in that respect is entirely overcome by the earnest and solemn conviction in my own mind of the correctness of the views which I have taken. I, therefore, see no reason for disturbing the decree of the court rendered herein, and with these reasons for concurrence in the decree, think the rehearing applied for should be refused.

The Chief Justice concurs in this opinion.

Dissenting Opinion.

Fenner, J.

The doctrines set forth in the opinion of Mr. Justice Levy, concurred in by the Chief Justice, touching the power of the judicial tribunals to receive extrinsic evidence for the purpose of curing irregularities and formal defects in election returns, and recognizing the prima facie effect of such returns, and touching the foundation to be laid for their impeachment and for resort to a recount of the ballots, substantially accord with the views expressed in my dissenting opinion, and receive my concurrence.

My objections, however, to a reversal of the findings of the jury upon the questions of fact submitted to them in this case are not removed, and on that ground I maintain my dissent from the decree.

Mr. Justice Todd concurs in this view.

By the Court. On an intimation of counsel that in the reasons of the Court overruling the motion to dismiss expressions occur painful to their feelings, we have, in a spirit of conciliation, taken the pains of reviewing the opinion, which was unanimously concurred in by all the ■members of the bench, and correctly announced by bis Honor the Justice who delivered it as their organ, and find that the language which it contains does not reflect upon tho counsel, and is not derogatory to tlie most fastidious. Not being offensive, it will undergo no alteration.

While on this subject we take occasion to say that verbal suggestions of that character, however respectfully intended and uttered, are irregular, and, in future, will not be entertained.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 1104.
    J. W. Burbridge & Co. vs. T. C. Anderson et al.
    The maker and the endorser of a promissory note are not entitled to plead an unliquidated claim in Compensation against the holder; nor, by swearing to the plea, are they entitled to a trial by jury.
    APPEAL from the Thirteenth Judicial District Court, parish of St. Landry. Hudspeth, J.
    Henry L. Garland for Plaintiffs and Appellees.
    Lewis & Bro. and A. Yoorhies for Defendants and Appellants :
    First — Defendant has the right to amend his answer, provided the application is made at the proper time, and the amended answer does not alter the substance of the original answer.
    ■Second — The plea of a want of consideration, in a suit on a promissory note, is not inconsistent with the general issue ; and defendant is at liberty to plead want of consideration, either by coupling it with the general denial, or by presenting it in an amended answer. 19 An. 207.
    'Third — The general issue on a promissory note admits the signature of respondent, but leaves open all other means of defense. 10 An. 180 ; 16 An. 10 ; 8 An. 312.
    Fourth — The maker of a promissory note, furnished by him to plaintiffs, with the subsequent indorsement of an accommodation indorser or surety, is entitled to a trial by jury, when the plea of want of consideration is supported by affidavit. And the surety or accommodation indorser is equally entitled to the trial by jury, when he has joined the maker in this special defense.
    Fifth — When an amended answer, on file and of record, has been subsequently disallowed and rejected by the court, there need be no bill of exception to have the matter reviewed by the appellate court. 12 An. 113 ; 10 An. 204, 547 ; 6 La. 380.
   The opinion of the Court was delivered by

Poché, J.

This is an action on a promissory note for the sum of $1836 05, subscribed by Thomas 0. Anderson, on May 15th, 1877,. payable two years after date, to the order of Elbert Gantt, indorsed by the latter, and duly protested for non-payment at maturity.

On December 23d, 1879, defendants filed a general denial.

On January 14th, 1880, they offered to file an amended answer, in. which they alleged want of consideration of the note sued upon, for the reason that at the time of the execution of the note in suit plaintiffs-were indebted to defendant Anderson, in the sum of $5800 on account of' State bonds sold for his account by plaintiffs, and for an unspecified amount of cotton-tax refunded by the Federal Government to plaintiffs, for Anderson’s account; and they concluded by asking for trial by jury. Their averments were supported by affidavit. The District Judge, after hearing both parties, disallowed the amended answer, refused trial by-jury, and on trial rendered judgment against defendants in solido for the amount of the note and interest; and defendants appeal.

The correctness of the judge’s ruling in disallowing the amended answer, and in refusing jury trial, is the issue submitted to our decision..

Plaintiffs’ objection to our considering this ruling, for the reason that no bill of exceptions was taken thereto, is untenable. The record is full and explicit on that point, and the rulinc of the court is shown by the minutes. But the position of defendants in offering the defense set up in their amended answer is equally untenable.

Nothing in the note sued upon or in th'e record tends to show or-even intimate that plaintiffs were a party to the note executed by Anderson, in favor of his co-defendant Gantt; the note was negotiable in its-, character, and on proving the signature of the indorser, the bearer will be presumed, until the contrary be proven, to be the tona fide holder of the note, and plaintiffs’ relations as debtors of Anderson, at the date of the note, cannot be held as affecting the consideration of the same.

And besides, the alleged indebtedness of plaintiffs to Anderson, if it does exist, is an unliquidated account, which could not be set up in compensation against a promissory note, especially when we see that the second item of such indebtedness is not specified as to amount in the answer.

It is elementary that if the answer had been admitted and trial had thereon, objections by plaintiff to the introduction of any evidence tending to support a plea untenable in law should and would have been sustained. The court then in admitting the answer, and allowing a trial by-jury, would have done an act worse than vain in impaneling a jury who would have had no issue to try. Courts cannot be called on to' do-vain and nugatory things, and the District Judge correctly and properly disallowed defendants’ amended answer and properly overruled their prayer for jury.

Plaintiffs have filed a prayer for damages as for a frivolous appeal ; but as defendants’ counsel, who tried the case in the lower court, may have been honestly mistaken as to the correctness of his position, and has since died, we shall not allow the damages prayed for.

It is therefore ordered, adjudged, and decreed that the Judgment of the District Court be affirmed, with costs in both courts.


text:
    No. 1067.
    State of Louisiana vs. Barney Thompson.
    Held, that tlie omission of the Clerk of the District Court to take the special oath required of him by law, as a member of the jury Commission of the Parish, vitiated the drawing of the jury who tried and convicted the accused; and that, therefore, the verdict and judgment are null and void. Tho Decision in the case of the State vs. John ‘Williams, 30 An. 1028, affirmed.
    APPEAL from the Twenty-First Judicial District Court, parish of Iberia. Fontelieu, J.
    W. B. Merchant, District Attorney, for the State, Appellee.
    Jos. A Breaux and Wm. F. Schwing for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Barney Thompson,, who has been indicted for murder, convicted of manslaughter, and sentenced to hard labor in the Penitentiary for three years, appeals from the Judgment of the Court, and' complains of the following irregularities committed in the course of his trial:

First. That the venire of Jurors from which were drawn the grand Jury who found the indictment against him, and the petit Jury who convicted him, had been irregularly drawn.

Second. That the Judge erred to his prejudice in one of his charges to the Jury.

He alleges the following errors in the drawing of the venire :

1. That the clerk of the court had not taken the oath required by law, as member of the Jury commission.

2. Two of the members of the commission had not been appointed by the Judge of the district; only one of its members had been legally appointed by the Judge.

3. The venire for the term was illegally taken from the list of three hundred selected for terms previous to 1880.

The record shows that before the impaneling of the grand jury on the first day of the term the accused had moved to set aside the whole venire of jurors on the grounds herein above enumerated, and that his motion had been overruled ; and it also appears from the record that the present clerk of the district court of Iberia was qualified as such on the 15th of April, 1880, but that he had not taken the oat.h required by section 3 of Act No. 44 of the Legislature, approved March 8th, 1877, and which is in substance as follows: “ The several district judges throughout the State shall select four discreet citizens, who, with the ■clerk of the district court, shall constitute a jury commission for each parish, etc., and before entering upon the discharge of their duties, eaoh member of the commission shall take an oath faithfully to discharge the duties imposed upon him by this act.”

That the clerk of the court is imperatively required, under pain of nullity of all the proceedings of the jury commission, to take the special oath prescribed by that section of the law, is no longer an open question, but has been directly adjudicated in the case of tne State vs. John Williams, reported in 30 A. 1028.

Judge DeBlane, as the organ of the Court, said : “ The clerk who assisted in the drawing of the jury by whom the prisoner was indicted and tried, had not, when he assisted, taken the oath prescribed by the -act of 1877. The presiding judge held that he would judicially notice that the clerk was a sworn officer. That was not sufficient, for the law expressly declares that he is a member of the jury commission, and not only that the four citizens shall be sworn, but that each member of that ■commission shall take an oath, the very terms of which are specified in the act. When must each of those commissioners take that oath? Before entering upon the discharge of their duty as such. This thei clerk did not do ; he did not qualify as a jury commissioner, and that omission did vitiate the drawing of the jury by whom the accused was indicted and tried.”

As properly stated by the Court in the case quoted, the clerk is the most important member of the jury commission, and performs the acts which are of the essence of the proceedings; and it follows that his want of qualification to act as a member of the commission taints their whole proceedings with absolute nullity. Considering the reasoning of the Court as clear, correct, and decisive of the very point at issue in this ■case, we conclude that the omission of the clerk of the district court of Iberia to take the special oath required of him by law as a member of the jury commission of that parish, vitiates the drawing of the jury who tried and convicted the accused, and that the verdict and judgment are nullities.

This conclusion obviates the necessity oí reviewing the otter grounds of error urged by the accused.

Before disposing of this case, we are reluctantly compelled to direct the attention of the clerk of the district court to another omission in his official duties, by not completing the index of the transcript in this ease ; and to his utter disregard of our rules, in two other transcripts which have come before us at this term and place, in which the handwriting was almost illegible, by reason of a peculiar style of writing, almost impossible to follow, and causing a painful stress on the eye.

The production of such a transcript cannot be' considered a compliance with our rules.

For the reasons herein above assigned it is ordered, adjudged, and decreed that the indictment found in the district court of Iberia parish by the grand jury against Barney Thompson, on the 15th of May, 1880, charging him with murder, be quashed and avoided, and the verdict of the jury and sentence of the court appealed from be set aside, avoided, and reversed.

It is further ordered that said Barney Thompson be detained in custody to await a new indictment and trial thereunder.


author: Todd, J.

text:
    No. 1069.
    Désiré Thibodeaux vs. Cleophas Broussard.
    No entry and settlement, under the united States Homestead Act of the 20th of May 1862 oan be made of swamp lands previously donated to the State of Louisiana by the united States, when the lands have been examined, surveyed and listed and the Report of tb& Surveyors approved by the Secretary of the Interior, according to the laws of Congress.
    APPEAL from the Twenty-Fifth Judicial District Court, parish of Vermilion. Mouton, J.
    Jos. A. Breaux for Plaintiff and Appellee :
    1 — A patent was issued by the State.
    2 — The selection of the land patented was approved by the officers of the Public Land Department, including the Secretary of the Interior.
    3 — The selection is proven by copies of lists duly certified and admitted without objection.
    4 — A larger area of swamp land was' selected in the township then a township contains ; therefore, plaintiffs land in the township must be included in the selection.
    5 — Selections are made by reference to field notes.
    '0 — The State is entitled to all lands, whenever more than half in each legal subdivision is swamp land, wet and unfit for cultivation.
    7 — No homestead entries can be made of these lands, especially when they have been listed, selected, and it is proven, in addition, that they are of the above-mentioned character.
    W. W. Edwards for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

This is a petitory action. The plaintiff claims title to the land described in his petition by virtue of a sale to him from Edgar Co-meau on the 16th July, 1870, who, he alleges, acquired the same from the State, and to whom a patent issued on the 5th of May, 1858, under the provisions of the act of Congress approved March 2, 1849, known as the Swamp Land Act.

The defendant denies the title of plaintiff, and asserts his inchoate title to the land, based upon an entry and settlement under the United States Homestead Act, approved May 20,1862.

The question presented for our determination is whether the land in controversy was legally embraced in the swamp lands donated to the State by the act first named, or, as United States Government land, was subject to entry and settlement under the homestead act mentioned.

The act of Congress donating the lands to the State referred to provides:

Sec. 1. “ That to aid the State of Louisiana in constructing the necessary levees and drains to reclaim the swamp and overflowed land therein, the whole of those swamp and overflowed lands which may be found useful for cultivation shall be and the same are hereby granted to the State.

Sec. 2. That as soon as the Secretary of the Treasury shall be advised by the Governor of Louisiana that that State has made the necessary preparation to defray the expenses thereof, he shall cause a personal examination to be made under the direction of the. Surveyor General thereof, by experienced and faithful deputies, of all the swamp lands which are subject to overflow and unfit for cultivation ; and a list of the same to be made out and certified by the deputies and Surveyor General to the Secretary of the Treasury, who shall approve the same so far as they are not claimed or held by individuals ; and on that approval the fee simple to said lands shall vest in the State of Louisiana, subject to the disposal of the Legislature thereof.”

Under the provisions of the second section of this act, an examination of said lands was made by surveyors, and lists of the lands selected •as swamp lands were made out, certified to, as required by the act, and forwarded to the Secretary of the Interior for his approval, and were duly approved. And in 1857 the lands thus selected and approved to .the State were confirmed by act of Congress.

We find in the record that among the lands thus selected, approved, •and confirmed, were lands in township 14 S. B. 4 E, being the township in which the land in controversy is situated. The plaintiff insists that all the lands in that township were embraced in that selection and report, •including, of course, the land in question. This is denied by the defendant. The dispute grows out of the character of the report made respecting these lands, and the mode or manner in which the lands purport to have been selected. We find in the record a report signed by John Boyd, as deputy surveyor and agent of Louisiana for selecting swamp land, and made to the Surveyor General of Louisiana, and approved by him, in which certain sections in said township are designated and a list given of the same as selected, and a statement then follows in the report that the balance of the township has been selected. We think this makes it plain enough that the balance of the township besides the subdivisions designated, were selected as swamp lands, which would of course return the entire township as swamp. But the counsel for the defendant argues from the words “all the unsurveyed portion as described as sea marsh in the township,” makes the true meaning of the report to be, that the balance of the lands referred to as returned to the State, was the unsurveyed sea marsh, and did not include any surveyed lands, except those specially designated.

We find, however, by adding together what is termed in the report as sea marsh, estimated at 18,622 acres, and the sections expressly listed by their numbers, and deducting the 16th section reserved, would give the State 24,000 acres in that township--more acres even than a township contains.

It seems from this that the authorities of the State might very properly conclude, under the reports and approvals relating to this particular township, that all the lands therein belonged to the State.

Such was the conclusion, and the State acted on it, and proceeded to sell the lands in question, including the land sued for ; and the State ownership of this land seems never to have been questioned, until nearly twenty years after the patent issued to the plaintiff, when we find an entry of the land under the Homestead Act being allowed to the defendant, which would imply that a claim to these lands was being again asserted by the officers of the General Government having authority over the government lands within the State. There is no doubt that the different reports of the surveyors and other documents filed in the record respecting these lands might have been more precise and definite in their terms, and established the right of the State to these lands so clearly as to put it beyond controversy. But we find the plaintiff in possession of a title to this land derived from one who held a patent issued by the State, based upon a selection approved and confirmed by the United States, affording to the State authorities what was officially deemed indubitable evidence of the right of the State to the land. "We must presume that these State officers did their duty, and giving to the evidence offered by defendant, afforded by the irregularities cited in the reports-touching these lands, its full weight, it is not sufficient to cast a reasonable doubt on the title shown by the plaintiff to the land.

The plaintiff has asked an amendment to the judgment by allowing him the damages claimed in his petition. We do not think the evidence supports the claim in this respect, and we cannot allow it.

It is therefore ordered that the judgment appealed from be affirmed with costs.


author: Bermudez, C. J.

text:
    No. 1100.
    State of Louisiana ex rel. Thomas W. Nelson vs. Police Jury of the Parish of St. Martin et al.
    A party claiming to compel a Municipal Corporation "by Mandamus to levy a special tax to pay a certain judgment held by Mm, notwithstanding the limitations of Article 209 of the Constitution of 1879, on the ground that said limitations impair the obligations of his contract with the Municipality and are, therefore, null and void, — must allege and prove that his judgment was founded upon a contract.
    APPEAL from the Twenty-First Judicial District Court, parish of St. Martin. Fontelieu, J.
    Breaux & Hall for the Relator, Appellee:
    First — The original judgment declares (1) the existence of the debt; (2) fixes the amount; (3) and secures, in terms, to the creditor the means of enforcing its payment, according to the law in existence at-its final rendition.
    Bach vs. Foogood et al., 18 La. 416.
    (Justine vs. the Union Bank, 10 Rob. 418.
    Second — The State is bound to afford adequate process for the enforcement of rights ; and where an intention to hamper or embarrass proceedings to enforce the remedy, so as to destroy it and thus impair the contract, is apparent, the statute is void.
    Cooley’s Const. Lim. p. 286-289.

      Oatman vs. Bond, 15 "Wisconsin, 28.
    Hoffman vs. City of Quincy, 4 Wallace, 548.
    State ex rei. Strauss vs. Brown, 30 An. 82.
    State ex rei. Henry vs. the Mayor, 29 An. 865.
    Edwards vs. Kearsey, 96 U. S. 598.
    15 Howard, 304; 1 Howard, 311.
    Third- — The remedy subsisting in a State w'hen and where a contract is made and is to be performed is a part of its obligations, and aDy subsequent law 'of the State which so - affects the remedy as substantially to impair and lessen the value of the contract is forbidden by the Constitution, and void.
    Edwards vs. Kearsey, 96 U. S. 607.
    Fourth — The remedy for payment was special, and required to be made a part of the judgment; thereafter no law could affect any right of relator fixed by that judgment.
    Bevised Statutes, 2428.
    Pennsylvania vs. Belmont Bridge Co., 18 Howard, 431.
    Bemiss vs. Dwight, 3 An. 337-8.
    Authorities cited above.
    Fifth — The act of 1877, p. 88, repeals our only remedy, strikes at rights ascertained and fixed by the judgment of November 29th, 1873, and is, therefore, as to these, null and void.
    W. B. Merchant, District Attorney, for Defendants and Appellants :
    No parish tax for any purpose whatever shall exceed ten mills on the dollar of valuation. Const, of 1879, Art. 209.

      A remedial law may be repealed at any time, and from the date of such repeal no obligation can be enforced thereunder.
    A judgment ordering the levy and collection of a tax, which does not fix the time of collecting the same, is pro hac vice inoperative and of no effect.
    The levy of a tax based upon previous assessments is null and void.
   The opinion of the Court was delivered by

Bermudez, C. J.

The relator obtained judgment in 1873 against the parish of St. Martin for four thousand five hundred dollars, with interest as stipulated. Under the provisions of section 2628 of the Bevised Statutes, the Court directed the assessment and collection of a special tax to pay the judgment, which reads as follows: .

“In the above entitled case, the law and the evidence being in favor of plaintiff, and against the defendant, it is ordered, adjudged; and decreed that said plaintiff, Thomas W. Nelson, have judgment .against and recover from the defendant, parish of St. Martin, the sum of four thousand five hundred dollars, with eight per cent per annum from October 5th, 1868, and that the board of assessors, or officers whose duty it is to assess taxes, forthwith assess a parish tax at a sufficient rate per cent upon the assessment roll of the current year to pay said judgment, and that the tax-collector proceed forthwith to collect said* tax in the same manner that parish taxes are now collected ; and the amount collected .to be a special fund to pay said judgment.”

The validity of this judgment was assailed, and an injunction was obtained to arrest its execution, but the court dissolved the injunction and maintained the judgment. On appeal this judgment was affirmed. 28 An. 578.

Proceedings were next taken against the tax-collector and assessor to force the levy of a tax to satisfy the judgment. This Court held that the proceedings should have been directed against the police jury, and that a mandamus can not issue against the tax collector and assessor. 30 A. 1103.

The present proceeding is instituted against the police jurjr of the parish of St. Martin, and has for its object to compel them by mandamus to assess, collect, and apply a special tax for the payment of the relator’s judgment.

The application is resisted on two grounds:

First. The State and parish tax-collector was not made a party.

Second. The law under which the judgment was rendered for the levy and application of the tax was repealed by Act No. 56' of 1877.

As a corollary, it was argued in the pleadings that said law being •essentially a remedial law, its repeal did in nowise impair the relator’s rights, but merely suspended or abolished one of the means by which his said vested rights could be exercised or executed; it is, therefore, valid and constitutional.

The judgment of the lower' court directed the assessment of a special tax of one per cent, and the police jury has appealed from it.

First. The State and parish tax-collector was served .and has joined issue. He is, therefore, a party to the suit.

Second. The act of 1877 should be no bar to the exercise of the remedy accorded by law to the plaintiff, and which was in force at the time that he obtained his judgment, and which, not only theoretically, but practically, formed part of that judgment, provided the judgment be founded on a contract.

The only evidence before us is the judgment itself. Neither the pleadings nor the evidence on which the judgment was rendered are in the record. The very petition in the present proceeding is silent on the subject of the obligation of the parish to pay the judgment, as springing from a contract. The police jury has neither alleged nor proved to the contrary. It was certainly a material point.

The relator’s counsel has affirmed in his argument that plaintiff has recovered on the strength of a contract, but this statement, however respectable and correct it may be considered, cannot be accepted to supply the deficiency.

' We do not consider that the insertion in the judgment that a tax shall be assessed and applied to the payment of this judgment, adds any force to the claim of the relator for a mandamus. The law in existence at the time it was rendered, directing such an insertion, forms as much part of the judgment, without being so embodied, as the formal incorporation of its provision does. The relator has acquired no right by the insertion which he would not have had otherwise.

We think that the relator has not presented a case shielded by the Constitution of the United States, which forbids States from framing laws impairing the obligations of contracts, and, even then, that he has failed to substantiate by proper and sufficient evidence that it is so protected.

If the judgment relied upon was not founded on a contract, we would be powerless to enforce its payment in the manner proposed, prohibited as we would be from so doing by article 209 of the Constitution of 1879, limiting taxation to ten mills, as was held in the case of the State ex rel. Folsom Bros. vs. the City of New Orleans, recently decided and not yet reported.

It is in evidence that the parish of St. Martin is without property liable under seizure and execution, and it is admitted that there are no funds in the treasury to pay this judgment. The parish indebtedness, exclusive of the judgment, is about two thousand five hundred dollars, ahd there is an appropriation made in the current taxes of nine hundred dollars to pay all back indebtedness.

The special tax of one per cent imposed by the lower court is, by itself, a tax of ten mills, the valuation of the taxable property in the parish, under the assessment, being proved to be one million of dollars. The existing respective quantum of per centage of parochial taxes annually levied and collectible was not proved, and is not, therefore, specifically known to us. Whatever the parochial quantum be, it exists, as the parish has no means of self-support other than those 'realized by taxation. It is undeniable that it has a budget of expenditures provided for in that manner.

Added to the ten mills ordered to be.raised by the judgment in this ease, the total of the parochial tax and of the special tax ordered to be • assessed would clearly exceed the constitutional limit stated, which, under the circumstances of this case, as shown by tie record, we have no authority to transgress. •

We think it our duty, in furtherance of the ends of justice, to remand the case, in order that the relator may have an opportunity of establishing that his judgment is founded on a contract, if such be the case,, and that the defendants may adduce such further evidence and make such other defenses as the nature of the suit may require.

It is therefore ordered, adjudged, and decreed that the judgment appealed from, making peremptory the mandamus asked, be reversed, and that this case be remanded for further proceedings according to law, appellee to pay costs of both courts.

Mr. Justice Fenner recuses himself, having been of counsel.

Mr. Justice Levy takes no part in the case, as interested in a similar question.


text:
    No. 1089.
    J. U. & H. M. Payne vs. Heloïse Dejean.
    The creditor of a Succession, who has obtained judgment against the Administrator thereof, to he paid from the funds in his hands, can coerce payment of his claim out of the individual property of the Administrator, if the latter fail to satisfy the judgment from the funds of the estate.
    APPEAL from the Thirteenth Judicial District Court, parish of St. Landry. Hudspeth, J.
    Henry L. Garland for Plaintiffs and Appellees :
    A creditor of an estate, whose claim is liquidated, and who has obtained by order of court a rendition of account of the administrator, is entitled to an execution against the property of the administrator, upon failure of said administrator after the delay allowed by law to pay him the amount fixed by the judgment homologating the account. C. P. 993 and 1057 ; 13 An. 416 ; 18 An. 220.
    B. A. Martel for Defendant and Appellant:
    The court not having ordered the homologation of the tableau of classification, but merely its amendment, and no new tableau having been filed, and no final tableau having been as yet homologated, and an appeal having been duly taken by the administratrix, and bond Vgiven and accepted according to law, plaintiffs herein had no cause of action against defendant personally, or even as administratrix, and this suit is premature. 14 A. p. 43 et seq.; 10 A. p.. 224 ; C. P. 986 and 1054 ; 21 A. p. 43.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiffs were twice judicially recognized as creditors of the succession of A. R. Hawkins, contradictorily with the defendant herein, in her capacity as administratrix. By judgment homologating the account presented by her, they were to receive as a pro rata of the funds in her hands the sum of two thousand six hundred and twenty-nine dollars and thirty-six cents. From that judgment the administratrix had taken a devolutive appeal, which has just been dismissed. Had it not been so disposed of, being merely devolutive, it could not arrest the execution of plaintiffs’ judgment.

The lower court recognized the claim which the plaintiffs now urge against the administratrix in her individual capacity.

The plaintiffs had three remedies :

First. To compel her, as administratrix, to pay them.

Second. To proceed against her sureties on her official bond on her failure to pay.

Third. To coerce payment out of, her individual property, a right clearly accorded them by law.

They have preferred the last remedy, and are entitled to recover.

C. P. 993,1057; 13 A. 416 ; 18 A. 220 ; L. D. 690, B. No. 4; 23 A. 573.

The plaintiffs and appellees have asked for damages for a frivolous appeal. We do not feel justified to allow any.

It is therefore ordered that the judgment appealed from be affirmed with costs.

Mr. Justice Fenner recuses himself on the ground of affinity.


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    No. 1090.
    J. U. & H. M. Payne & Co. vs. Heloϊse Dejean.
    An Administrator cannot appeal in his official capacity from a judgment rendered in favor of the Succession which he administers, and against lriiu, on his Account of administration. He should appeal, in such a case, in his individual name.
    APPEAL from the Thirteenth Judicial District Court, parish of St. Landry. Hudspeth, J.
    Henry L. Garland for Plaintiffs and Appellees :
    First — An administrator cannot ask for and prosecute an appeal from a judgment sustaining opposition to a claim recognized by him by being placed on tableau and opposed. It is the exclusive right of the person whose claim is rejected to appeal. Even if he were not a party to the judicial contest resulting in sustaining the opposition to his claim, he can appeal by making- allegation of being aggrieved. Therefore, when the administrator, in Ms official • capacity, has moved or petitioned for an appeal, no inquiry can be made in relation to the correctness of the judgment sustaining opposition to claims which he had placed on the tableau. 4 N. S. 622; 1 Rob, 27P.
    Second — When an administrator has placed on tableau a claim against the estate, which he pretends is due to himself, and which is opposed, he must, to prosecute an appeal from a judgment sustaining such opposition to his claim, give a bond signed by him personally, because, if the judgment rejecting his pretensions is affirmed, the estate is not liable for, and should not pay, the costs of the appeal. 1 Rob. 276 ; 6 An. 140.
    B. A. Martel for Defendant and Appellant.
   Orr MotioN to Dismiss.

The opinion of the Court was delivered by .

Bermudez, C. J.

The plaintiffs and appellees move to dismiss the devolutive appeal taken by the defendant, in her official capacity, from a judgment amending an account of administration presented by her, by which she was charged with more than she accounted for, and was denied the entirety of a personal claim which she had set up against the estate.

The first part of the judgment increasing the assets directhj, was in favor of the succession, and one of which she, as administratrix, had no right to complain.

The second point of the judgment likewise increased the assets of the succession individually by reducing her claim. It went against her individually, and was not, therefore, against the succession.

By thus increasing the amount of funds on hand the,estate was benefited, and not injured.

It is only where a judgment is rendered by which a succession can be aggrieved, that a succession represent ative can, in his official capacity, appeal from the same. The only reason which justifies the granting of an appeal is, that the party appellant considers that the judgment aggrieves him. How could the administratrix complain that the judgment in question, which benefits the succession,' aggrieves it ? An administrator cannot be permitted to use his official capacity for his individual advantage where he is personally the only one aggrieved.

In such a case he does not represent the mass, and should appeal in his individual name. This was not done in the present instance. The appeal, even devolutive, is inoperative, and should be dismissed. 5 R. 140; 1 E. 275 ; 1 A. 21; 12 A. 774; 11 A. 177 ; 26 A. 385.

It is therefore ordered that the appeal in this case be dismissed with costs.

Mr. Justice Fenner recuses himself on the ground of affinity.


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    No. 1077.
    Wheaton J. Bateman vs. the Mayor and Council of Morgan City.
    It is only after a party lias been condemned to some penalty under a municipal police or sanitary ordinance, or lias been relieved therefrom by the lower Court, that the question of constitutionality of the ordinance can be agitated, on appeal, by either the' municipal council or the townsman, and be passed upon by this Court.
    PPEAL from the Parish Court, parish of St. Mary. Mente, J.
    A. C. Allen for Plaintiff and Appellee.
    B. E. Winchester, City Attorney of Morgan City, for defendants and Appellants :
    To question or test the authority of the Mayor of Morgan City to enforce the police and sanitary ordinances, and the ordinances relative to private markets of said city, by way of injunction and a claim of damages, before a suit is instituted, is unwarranted in law. Parties should await the enforcement of such ordinances against them, and then test the legality of same by appeal from the judgment imposing the penalty in said ordinances prescribed. 27 A. 620.
   The opinion of the Court was delivered by

Bermudez, C. J.

Apprehending an injurious enforcement against him of a municipal ordinance, which he charges with unconstitutionality, the plaintiff has obtained an injunction to prevent the city authorities from molesting his person and interfering with his business as a private marketman, and, considering that he had already been wronged, he claimed 'five hundred dollars damages from the defendants in solido.

On a motion to dissolve, judgment was rendered perpetuating the injunction, but allowing no damages.

Prom this judgment the defendants have appealed.

As far as can be gathered from the anomalous pleadings, the object of this suit seems to be merely to impugn the validity under the Federal and State Constitutions of a police and sanitary ordinance, the text of which does not, however, appear in the record.

The plaintiff makes no complaint that any tax, toll, or impost whatever, or any fine, forfeiture, or penalty was actually imposed upon him. by the municipal corporation of Morgan City ; and that corporation does not aver that the ordinance was declared unconstitutional, and that, on that ground, judgment was rendered in favor of plaintiff. It is not until a party has been condemned to some penalty, or has been relieved therefrom, that the question of constitutionality of a municipal ordinance can be agitated by either party on appeal and passed upon by this Court. 27 A. 620.

We cannot take jurisdiction over the case as presented, and cannot, therefore, pass upon the character of the proceedings, or on the issues raised in the record. V. art. 81, Const. 1879.

Whether the judgment complained of be susceptible of revision in another forum, is a question upon which we express no opinion.

It is therefore ordered that the appeal taken to this Court be dismissed at appellants’ costs.


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    No. 1093.
    Thomas C. Anderson vs. His Creditors.
    The theory of the application for a Respite is, that the applicant is the plaintiff and the creditors the defendants. There is issue -joined between them by the filing of oppositions to the application; and the oppositions should be tried whenever legally fixed for trial, with - out citation to either the applicant debtor or the assenting creditors, to answer the oppositions.
    The pretension of the applicant debtor that, if he does not seek the homologation of the proceedings, the oppositions cannot be tried, is entirely unfounded, either inlaw or reason.
    APPEAL from the Thirteenth Judicial District Court, parish of St. Landry. Hudspeth, J.
    Henry L. Garland for Opposing Creditors, Appellants :
    First — Any person having interest may ask the court to homologate the proceedings of a meeting of creditors held for the purpose of considering an application for a respite.
    Second — In petition praying for such homologation, opposition may be made to the right to vote of any of the persons who participated in the meeting.
    Third — All the parties in a concurso are plaintiffs and defendants. There is no citation required' to be made on any.
    Lewis & Bro. and Albert Yoorhies, amici curice, on the other side •.
    First — A respite differs essentially from a surrender. 12 An. 182.
    Second — All proceedings against a debtor who has applied for a respite must be had contradictorily with him, and he is entitled to notice.
    Third — When the petitioner does not pray to have parties made, and that these be served with notice or citation, there can be no tacit issue joined.
    Fourth — When plaintiff does not pray for parties to be made and notified or cited in a matter where the proceedings must be contradictory, the court cannot compel him to make and cite parties, but may dismiss the proceeding.
    Fifth — The appeal having been taken in open court, without citation, there are no appellees in an ex parte proceeding.
   The opinion of the Court was delivered by

Bermudez, C. J.

Submitting a hilan or schedule of the condition of his assets and liabilities, alleging his solvency, but embarrassed circumstances, and expressing a desire to obtain relief from his creditors, Thomas C. Anderson applied for a respite.

The Court made an order convoking his creditors and staying all proceedings against his person and property.

Notices appear to have issued to the creditors. On the appointed day, and on subsequent days, a number of persons claiming to be and to represent creditors, appeared before the designated notary, and, after verifying their claims by oath, voted, some for, some against, the respite asked by Anderson.

The notary drew up the required proces verbal, which was signed by the appearers, and afterward filed in the court before which the proceedings were pending.

Oppositions were filed by certain parties claiming to be creditors of Anderson, averring a number of reasons to prevent the homologation of the deliberations, which otherwise would have inured to Anderson’s benefit.

The case was placed on the docket and was called for trial. The opposing creditors announced themselves ready to proceed, and insisted upon trying their oppositions. Objection being made by counsel of Anderson to the trial, on the grounds that there were no litigants before the court; that there were no issues presented to the court; that the opponents show no cause of action; the court sustained the objection, for the reasons stated, and dismissed the oppositions.

To this ruling of the court, which occurred on January 20th, 1880, a bill of exceptions was taken.

Subsequently, on March 5th, 1880, a judgment was rendered, in which reference is made to the occurrences of January 20th, 1880. This judgment terminates in the following words and figures:

“ The law and evidence being in favor of the said T. C. Anderson, and against the demands made by said opposing creditors,

“ It is ordered that their proceedings be dismissed.”

It was signed by the presiding judge on said 5th of March, 1880. From the judgment so rendered the opposing creditors have appealed. With the judgment the ruling comes up for revision.

It does not appear from the record, that we can discover, that any proceedings intervened between the 20th of January and the 5th of March, 1880. In point of fact, the judgment is merely a repetition of the matters embodied in the bill of exceptions.

The theory upon which the objection was made to the trial of the oppositions filed by certain parties claiming to be creditors to the approval of the proceedings before the notary, seems to be predicated upon the assumption that the opposing creditors are to be treated as ordinary plaintiffs should be, and that the applicant for the respite, and those whose action and claims were opposed and drawn in question, are defendants in the oppositions, and that no action can be taken on such oppositions until after those'parties shall have been cited to answer the oppositions, and shall have joined issue upon the same, or until Anderson shall have taken steps for the homologation of the proceedings.

This is a fallacy. The theory is to the very reverse. The applicant is the party plaintiff, and his creditors are the parties defendants. The very title of the proceedings evidences the correctness of this view. The applicant, availing himself of the provisions of the law in favor of embarrassed, though not insolvent, debtors, addresses his complaint to the proper court, and asks that his creditors be summoned, as1 it were, to show cause why the respite asked should not be granted him. The cause to be shown is merely their willingness or unwillingness to grant the desired relief. They are called upon to’express that consent or refusal before a notary. As may well be expected, some may be and others may not be creditors. From the mere fact that they verify their claims by their respective oaths before the notary, it does not follow necessarily and absolutely that they are such creditors, that they cannot be called upon to prove up their pretensions contradictorily with parties in interest.

To entitle an applicant for a respite to the relief, he must obtain the majority of votes in number and amount of all his creditors.

The law requires that the notary shall make a return of his execution of the order of the court for the convocation of the creditors of the applicant. The law allows ten days to parties claiming to have an interest at stake to oppose the deliberations of the creditors, as reported by the notary. Such parties even have beyond said delay, until before the deliberations are homologated, to file their oppositions. Th'e acts of the creditors before the notary and the oppositions to the deliberations are the answers of the creditors to the application for a respite, just as much as the oppositions filed to accounts and tableaux in succession matters or insolvent proceedings are considered as answers to the petition of the succession representative for the homologation of such accounts and tableaux.

It is not until then that there is an. issue joined between the applicants and the creditors ; but it is not to be understood that oppositions are indispensably necessary in order that either the proceedings before the notary or the accounts and tableaux may be homologated. The approval and homologation follows in case no opposition be filed.

It has never been claimed that after oppositions have been filed, the succession or insolvency representative and the creditors on the account and tableau whose claim may have been opposed, have to be notified, and that issue has to be joined before the opposition can be called, tried, and determined. The succession or insolvency representative and the creditors are deemed to be constantly present in court, and must be ready to proceed with the matters before the court when the case is properly called for trial, whether the burden of’ proof rests upon them or upon the opponents.

The application for a respite is inchoate until it has been granted. This only occurs when the court has granted it without opposition on the part of the creditors or after unavailing opposition.

It is only after a final decree has been rendered that the respite is granted or refused the applicant. In the first case the assets do not pass to the creditors; but in the latter, they do.

The opponents have a right to proceed with their opposition if they choose, whether the applicant for the respite wish or not to apply for homologation or to be present in court. They cannot be made to await his convenience. They may have an interest in having the respite granted or refused, or in having one preferred to another as syndic, in having parties pretending to be creditors declared not to be such, or in having other matters determined. Were it otherwise, the order staying proceedings against the person and property of the applicant would last indefinitely, even where the creditors, whose consent is required, would withhold the same absolutely, and the creditors would remain in statu quo to no end of time.

Article 3092 R. C. C. would remain a dead letter, and the unprecedented spectacle would be presented of creditors forever prevented from acting in a court of justice. 7 M. 675 ; 9 M. 493.

We think the lower court erred in ruling as it did, and that the oppositions should be proceeded with at the instance of the opposing creditors when the same shall be regularly called for trial.

It is therefore ordered that the judgment of the lower court be reversed, that the objection made to the taking up for trial of the oppositions be overruled, and that the case be remanded for further proceedings according to law, and that the costs of both courts be paid by the applicant, or by his estate, in case the respite be refused.


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    No. 1083.
    C. C. Duson, Curator, et al. vs. Lastie Dupré et al.
    Tlie legality of tlie appointment of a Curator to a succession cannot "be enquired into collaterally. His Letters of administration malie full proof of liis capacity until Ms appointment is canceled in a direct action. Reaffirming numerous previous Decisions.
    APPEAL from the Thirteenth Judicial District Court, parish of St. Landry. John JJ. Ogden, Judge ad hoc.

    John E. King for Plaintiffs and Appellants.
    Thos. H. Lewis in pro. per. and Henry L. Garland for Defendant® and Appellees :
    A joinder of issue by default or general denial does not, in a petitory-action, admit the authority of plaintiff to sue.
    The probate court' of the parish where the deceased resided and had his-, domicile has exclusive jurisdiction of the opening and administration of his estate; and the opening of the succession in another-parish is an absolute nullity.
    The opening of a succession as a vacant one, and the appointment of &. curator and counsel of absent heirs, are absolute nullities, if the>heirs are known to the person who has had himself appointed curator, are residents of the State, and have not renounced the succession.
    Kenneth Baillio on same side, presented the same defense.
   The opinion of the Court was delivered by

Poché, J.

C. C. Duson, alleging that he is the curator of the succession of Louis Blanc, and E. E. Perrodin, as the attorney of the absent heirs of the same succession, instituted a petitory action against Lastie-Dupré and others, for the recovery of a tract of land situated on Bayo®.. Plaquemine Brusle, in this parish, as the alleged property of the succession which they claim to represent.

After filing an answer and call in warranty, Lastie Dupré, joined', by all his co-defendants, excepted to plaintiffs’ action for want of capacity-in them to sue, on the ground of the nullity of their appointment by the parish court of St. Landry, for the following reasons :

Eirst. That Louis Blanc, having died in the parish of Orleans,, where he resided, the probate court of St. Landry had no jurisdiction over his succession.

Second. That Louis Blanc having left heirs residing in the State;. •Í&.8 probate court could not treat and administer his succession as a "•vacant estate.

The case was tried on these exceptions, which were maintained by dlie district court, and the cause was dismissed, from which judgment jplaintiffs appeal.

After filing their letters of appointment, plaintiffs objected to the Introduction of any evidence tending to show the nullity of the proceedings had in the probate court, in the succession of Louis Blanc, on the following grounds:

1. Because defendants’ exceptions came too late, after issue joined, •and were not urged in limine litis.

2. Because the proceedings of the probate court in the succession •of Louis Blanc could not be attacked collaterally, and the letters of ad-ministration issued by a competent court make full proof until revoked or annulled in a direct action. The objections were overruled, and the proffered evidence admitted by the judge a quo, and plaintiffs reserved their bill of exceptions.

In our opinion the district judge erred in allowing this collateral •attack on the judgment of the probate court.

Defendants’ counsel in their brief admit the correctness of the .principle that the validity of letters of administration issued by a competent court cannot be tested collaterally ; but they contend that the .rule is subject to exceptions, one of which is in a petitory action, wherein the capacity of a curator or administrator to sue can be assailed by the defendant.

Defendants’ position could be maintained if the appointment of the -curator was absolutely void, and the nullity apparent on the face of the ..papers and of the pleadings. But such is not the case here, as evidenced ••by the course of defendants themselves, who not only rely upon volumi- . .nous testimony in support of their attack, but even obtain a continuance -of the cause for-the avowed purpose of procuring such evidence.

The late parish court of St. Landry had probate jurisdiction, and was exclusively competent to grant and issue letters of administration -la all successions properly opened in that court. Defendants contend ■that this succession was not properly opened in that court, for the rea..sons urged in their exceptions. This denial presents a question of fact: •that the deceased was not a resident of this parish, and that having left heirs who were residents of this State, his succession was not vacant -so as to 'necessitate or justify the appointment of a curator.

But the investigation of these facts requires a re-opening of the ■-case and an examination into the motives and reasons which prompted ..the course of the probate judge in the premises.

These questions can be looked into and adj udicated upon only in a direct action before the same court, or before the tribunal now vested with original probate jurisdiction in the parish of St. Landry. No principle of our jurisprudence is more firmly established than the following : " Letters of administration make full proof of the party’s capacity until they be revoked. They must have their effect, and the regularity of the proceedings on which they issued cannot be examined collaterally.”

This rule was laid down in the early days of our jurisprudence, and has been sanctioned, confirmed, and consecrated by an unbroken line of decisions of this Court down to the present day. 2 L. 249 ; 2 A. 538 ; 8 A. 35 ; 10 A. 496 ; 26 A. 330 ; 28 A. 807 ; 30 A. 263.

The case reported in 3 A. 261, and mainly relied upon by defendants, is not applicable to the case at bar ; in that case the right of appointment of a party applying for the administration of a succession was the point involved in the issue.

The view which we take of this case obviates the necessity of reviewing the other points raised in the pleadings.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed; and it is ordered that defendants’ exceptions be overruled, and that this case be remanded to the lower court to be proceeded with in accordance with the views herein expressed, and according to law, and that the defendants pay costs thus far incurred in both courts.