author: Poché, J.

text:
    No. 9653.
    Meyer Weil vs. Joseph Lapeyre et al.
    All things which the owner of a tract of land has placed upon it for its service and improvement, such as working animals, implements of husbandry, machinery and other appur tenances, are immovable by destination, and are covered by a pre-existing mortgage Which attaches to the realty.
    But the effect of the mortgage on such movables is maintained only as long as the condition of immovable by destination continues, hence the owner may remove them from the mortgaged premises, and if the removal is done in good faith, and if by means of a sale, it is followed by delivery to the purchaser equally in good faith, the effect of the mortgage thereon is destroyed.
    Hence, in such a case, the creditor can not pursue such things in the hands of a third party, purchaser and possessor in good faith, so as to subject, them to his mortgage.
    But his right to prevent, by legal proceedings, the removal of such movables from the mortgaged premises, or to pursue them in the hands of a third possessor in bad faith, is fully recognized.
    APPEAL from tke Tweuty-tbird District Court, Parish of Iberville Talbot, J.

      Singleton, Broione & Qhoate and David H. Barrow, for Plaintiff and Appellee.

      Alex. Hebert, for Defendants and Appellants.
   The opinion of the Court was delivered by

Poché, J.

Defendant charges error in a judgment decreeing certain articles of machinery and implements of husbandry, which he had purchased from one Thompson, to be liable to a conventional mortgage which plaintiff had ou a plantation owned by Thompson, which plantation was sold in executory process under the mortgage held by plaintiff.

The machinery and implements had been placed, by the owner, Thompson, on the mortgaged premises for the service and improvement of the plantation, but having no further use of the same he had sold and delivered them to the defendant Lapeyre, a little over a year before the foreclosure of plaintiff’s mortgage.

The question for solution is whether the mortgage which affected the machinery and implements as soon as they became immovable by destination, through the act of the owner of the soil, by attaching them thereto as appurtenances, continued to affect and to attach to those things in the hands of a third party, purchaser. From the evidence it appears to our satisfaction that the sale by Thompson to LajJeyre was made in good faith, and that the latter became the true owner of the things thus sold to him, and for which he gave valuable consideration.

Nothing in the record could even justify a suspicion that in selling these things, Thompson had any intention to defraud his mortgage creditors, but on the contrary, it appears that his object was exclusively to obtain the means necessary to cultivate his plantation, and that he had no other source from which he muid secure the funds which he needed for the cultivation of his crop.

But plaintiff contends that, as these movables had become immovable by destination, his mortgage rights thereon had become irrevocable, and that no subsequent act of his debtor could have the legal effect of destroying or impairing the security which he had thus obtained on the same as part of the realty to which his mortgage attached, to the knowledge of the defendant.

Under the system of agriculture which prevails in this State, and which is the foundation of all the prosperity which we can expect for our people, the question is one of vital importance, to the consideration of which we have given much thought and study. Article 468 of the Civil Code provides that, Things which the owner of a tract of land has placed upon it for its service and improvement, are immovable by destination.”

“ Thus the following things are immovable by destination when they have been placed by the owner for the service and improvement of a tract of land, to-wit: ” * * * Implements of husbandry.” * * * Under-Article 3289, “immovables subject to alienation, and their accessories considered likewise as immovables,” are susceptible of mortgage.

In accordance with these principles it has been held, and it is now settled, in our jurisprudence, that working animals, implements of husbandry, and other appurtenances placed by the owner on his farm or plantation for its service and improvement, become immovables by destination and are as such affected with a pre-existing mortgage which attaches to the realty.

But after the most patient search we find in our reports but one case which deals with the question of the right of the owner of a mortgaged plantation to destroy by his own act, by means of a sale, or of a removal in good faith of such accessories, the character of immovables by destination which he had impressed on such movables, and to restore them to their original character or nature, free of the mortgage to which they had once been subject.

That power was recognized and judicially enforced by this court in the case of the Citizens’ Bank vs. Knapp, 22 Ann. 117.

But as the opinion in that case is not leasoned at great length or supported by authority, and in view of the violent attack made on it by plaintiff’s learned counsel, we have deemed it our duty to extend our researches and to treat the subject as though it were a new question. Articles 468 and 3289 of our Code are derived from Articles 524 and 2118 of the Code Napoleon, and we have therefore sought for light on this subject from French commentators on the Napoleon Code and' from the adjudications of French tribunals. And we have there found a clear solution of the question in the same sense which was followed by our predecessors in the case just referred to.

The theory of French writers, predicated on numerous adjudications of the Court of Cassation is, that the principle under which a movable can become immovable by destination is a pure fiction of the law, and that its effect in reference to mortgages, exists or lasts only as long as ^he condition under which it is produced continues, that is, as long as the movable remains, under the will of the owner, attached to the realty subject to the mortgage, as an appurtenance or an accessory.

Hence they conclude that a sale in good faith by the owner, followed by actual delivery to the purchaser, of movable effects which he had converted into immovables by destination, does liberate the things tiras sold from the effect of the mortgage to which they had been subjected only because they were attached to the land burdened with the mortgage.

The doctrine is thus laid down by Paul Pont, the co-laborer of Marcadé, in his Treatise on the Napoleon Code:

“Une autre consequence du principe, c’est que les objets mobiliers imniobilisés ne sout grevés de l’hypothéque assise sur l’immeuble qu’autant que l’inunobilisation continue. Les objets mobiliers viennent ils á, étre détaehés de l’immeuble on cessent — ils d’etre appliqués a la culture ou & l’esploitation du fonds dont ils formaient les auxiliaires ou les dépendanees, ils rentrent dans le.urs nature primitive de biens meubles; en sorte que la cause qui les avait rendus susceptibles d’hypotéhque venant á cesser, la charge hypothécaire cesse par cela méme de les atteindre. Ainsi, Paul a mis sur sa propriété des bestiaux, des utensiles aratoires, pour son exploitation; ces objets sont par la devenus immeubles par destination, et comme tels, ils ont été grevés de l’hypothéque dont la propriété était affectóe au profit de Pierre. Mais Paul, entiérement libre de ses droits, vend, sans fraude, ces bestiaux et les utensiles, les objets reprenment leur nature primitive, ear, n’appartenant plus au propréitaire du fonds, et n’étant plus attaches á ce fonds, ils cessent d’étre dans la condition qui les avait immobilises: le gage de Pierre est diminuó d’autant.”

The same view of the subject finds ample support from the pen of several very respectable French commentators, and in a current of uniform adjudications of French courts.

Paul Pont. “Explication du Code Napoleon,” vol. 2, p. 374 et seq.; Troplong Droit Civil Expliqué,” No. 399; Court of Cassation, decrees of, 5 August, 1829; 3 August, 1831; 25 May, 1841; Bourges, 31 January, 1843; Paris, 5 August, 1852.

In accepting these conclusions which, in our opinion, rest on solid grounds of reason, as well as on authority, we wish it to be well understood that nothing in this opinion can be interpreted to mean that the protection which is herein granted to the defendant, can be extended to any third party purchaser who is not entirely in good faith, and who has not been placed in actual and legal possession of movable effects which, to his knowledge, had been attached as appurtenances to a predial estate burdened with a mortgage, and had thus become immovable by destination.

In this ruling we must not be understood as holding any doctrine which could in the least impair or abridge the legal right of a mortgage creditor to prevent by legal proceedings the removal by his debtor, in good or in bad faith, from the mortgaged premises, of the movable effects, such as working animals, farming implements or machinery, which had been placed by the owner on the realty, as appurtenances thereof, or to pursue these objects in the hands of third parties, not purchasers of the same in good faith, so as to subject them to the effect of his mortgage.

In this case, as the record shows, we are dealing with a debtor, who has sold in good faith, some machinery and implements which he had attached to his plantation, with which he could subsequently dispense, and which he disposed of with the intention of raising' the funds necessary to cultivate his crops, and hence we conclude that his purchaser is entitled to protection.

The judgment appealed from is therefore amended, avoided and reversed, and it is now ordered that plaintiff’s demand be rejected and his action dismissed at his costs in both courts.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 9639.
    The State of Louisiana vs. Allen Tanner et al.
    To determine whether the venue was proved or not would require this court to consider the evidence on this point, and this the court cannot do however .the evidence may be presented in the record.
    A verdict will not be set aside because the jury was taken into a room to deliberate on their verdict where there were a number of law books on the subjoct of crimes and criminal proceedings, where there is no evidence that the books were read or examined by the jury.
    A PPEAL from the Fourth District Court, Parish of Caldwell, ¿A Burgess, J.

      M. J. Cunningham,, Attorney General, and George Wear, District Attorney, for the State, Appellee.

      J. JE. Barry, for Defendants and Appellants.
   The opinion of the Court was delivered by

Todd, J.

The defendants were convicted of forgery, and from a sentence of two years’ imprisonment at hard labor have appealed.

There are only two grounds urged in support of the appeal.

1. That the venue was not proved.

We have no means of ascertaining whether this is true or not. The record does not show it, and even if it contained evidence on the subject this court could not consider it. The ground, substantially, is ohat the evidence does not support the verdict. Under the constitutional restrictions and tlie repeated decisions on the point it is idle to make such objections before this court,

2. The second complaint is that the jury was carried iuto the sheriff’s office to deliberate on their verdict, and that there were several law books in the room on the subject of crimes and offenses that they might have examined or consulted, and that this was such an irregularity as to vitiate the verdict.

There is no merit whatever in this contention. It is not shown or suggested even that there was an examination of any of the books by any of the jury; on the contrary if appears that the jury was ready in ñve minutes after retiring to return a verdict, and it is not likely that in that brief interval they resorted to books or consulted authorities to assist them in reaching their verdict. This court has already ruled on this point, and adversely to the pretensions of the defendant’s counsel. State vs. Nelson, 32 Ann.

Judgment affirmed.


author: Manning, J.

text:
    No. 9448.
    Carondelet Canal and Navigation Company vs. The City of New Orleans.
    The City of Now Ofleana lias control of its streets and drainage and may improve tlie oil and alter the other as circumstances require.
    The City can change its system of drainage and do whatever is essential to perfect it, but it cannot wantonly and unnecessarily disregard the rights of its inhabitants.
    The City can widen a ditch lying along the b >ider of the plaintiffs’ Canal Company, but must cover it, as without a covering ingress and egress to and from the canal would be impeded or prevented. In widening the ditch to improve the drainage the city cannot needlessly interfere with the rights and privileges of the Canal Company.
    A PPEAL from the Civil District Court for the Parish of Orleans. Laga/rus, J.

      R. B. Ogden and Blanc & Butter, for Plaintiffs and Appellees.

      Walter R. Rogers, City Attorney, for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The plaintiff Company has injoined the City of New Orleans from “ widening the ditch between the northeast side of Toulouse street from Claiborne to Galvez and from digging or in any manner working on said ditch so as to increase the width beyond nine feet at the top at Claiborne street, and thence gradually widening to twelve feet at the top at Claiborne street (sic) and from doing anything on said ditch contrary to the terms of the compromise by Act of May 16, 1872.”

The writ of injunction copies the above verbiage of the prayer in the petition but it is apparent that the last mention of Claiborne should be Galvez street.

Prior to the above date the city began digging a draining ditch in the locality mentioned and the plaintiff stopped the progress of the work by an injunction. That litigation was terminated by a compromise by which it was agreed and stipulated that the ditch should not exceed the dimensions above specified, should be covered with four-inch plank, and should be cleaned in sections of not more than a hundred feet at a time, etc.

The present injunction was taken in 1884, the averment being that the city is violating its agreement and is widening this ditch to fifteen feet at Claiborne street and to eighteen feet at Galvez, and has not repaired the covering but that the planking has rotted and fallen away and the ditch is now uncovered.

Toulouse street forms the bank of the canal. They run side by side and the gravamen of the plaintiff is that the widening of the-ditch encroaches upon its landing, and the uncovering of it prevents ingress and egress to it so that- its commerce is obstructed and the owners of vessels navigating it are incommoded to the great injury of the company.

The evidence abundantly establishes the existence of this obstruction and its prejudicial effect upon the business of the plaintiff. The defence is that the ditch-widening is essential to the proper drainage of the city and to its health, and that the ordering and prosecution of the work is within the corporate powers of the city, and the execution of it cannot be prevented or impeded lawfully even though the city has formerly agreed not to do the work as it was proceeding to do when injoined.

The space between Claiborne and Galvez streets has been used as a landing for vessels running through this canal from the beginning, and this privilege is one of the rights among others that the company derived from the State by lease in 1857, and the company remained in undisputed enjoyment of this right until the city attempted to widen the ditch in 1872.

Unquestionably the city has control of its streets and may determine in what manner they shall be improved, and it has equal power over its drainage and can perfect a system that will conduce to the health and comfort of its inhabitants. Inhab. of Melpomene st. v. New Orleans, 14 Ann. 452; Dillon Munic. Corp. 393.

But it cannot exercise this power recklessly and in wanton disregard of the rights of its inhabitants. The need of enlarging this ditch as a part of a plan to improve the drainage of the city is demonstrated by the testimony, but that may be done and all the benefits derivable from it can be realized without injuring the plaintiff. The company has a right to require that the ditch shall be covered in every part where it was formerly covered for its convenience and that the landing between Claiborne and Galvez streets, which it has always used and which is necessary for its operations shall be covered as it claims, and the street crossings shall be also covered that lead to its landing.

The judgment of the lower court dissolved the injunction against widening the ditch and maintained it in all other particulars.

Judgment affirmed.


author: Fenner, J.

text:
    No. 9655.
    Mechanics and Traders’ Insurance Company vs. Nathan Gerson, et als.
    When a third person, under color of a pretended sale of immovables by destination subject at the time to a mortgage, unaccompanied by delivery and*tremoval, subsequently, removes them fraudulently and sells and converts the price to his own use, the mortgagee, on establishing the fraud, the insolvency of the debtor and the insufficiency of the remaining mortgaged property to pay the debt, may recover from the third person the price received by him for the property fraudulently removed.
    This case compared Weil vs. Lapeyre recently decided and shown to be in accordance with the principles there announced.
    A PPEAL from the Fifteenth District Court, Parish of Pointe Coupee, aTjL Toist, J.

      Olimier 0. Provosty, for Plaintiff and Appellant

      Thos. H. Eewes, Contra.
   The opinion of the Court was delivered by

Fenner, J.

The gravamen of the petition is that plaintiff held a mortgage for $35,000 on a plantation belonging to George Gerson and, as a legal consequence, on all the immovables by destination attached thereto; that Nathan Gerson, a brother of George, fraudulently colludin g with’ the latter, under color of a pretended sale, illegally removed certain mules and horses from said plantation, shipped them to New Orleans, sold them and pocketed their proceeds; that George Gerson, the debtor, was insolvent, that the remaining mortgaged property was utterly insufficient to satisfy the debt, and that he, therefore, claims from Nathan Gerson the value of the property thus illegally and fraudulently subtracted from the mortgage security and converted to his use.

The petition presents a perfect cause of action, and all its allegations are sustained by the evidence in the case. A large part of this testimony was excluded by the lower court, but it is embodied in, and brought up with, the bill of exceptions. The ruling of the lower judge was erroneous. Some of the testimony is irrelevant, but discarding that, we find much that is pertinent, and should have been admitted.

The utter insolvency of George Gerson does not admit of dispute.

The insufficiency of the denuded mortgaged property to satisfy the debt is fully established.

The mules and horses, whether bought before or after the date of the mortgage, were bought by George Gerson, attached to the plantation and became subject to the mortgage.

Nathan Gerson admits that he carried to New Orleans twenty-two mules and two horses, sold them, received the proceeds and converted them to his own use.

He foimds his claim of right upon a pretended sale which had been made to him by George in 1882, after the date of the mortgage, which is one of the most transparent shams and frauds that ever stared from the face of a record.

George Gerson was insolvent prior to 1882. He had brought his thoroughly impecunious brother from New Orleans to the plantation, and not long afterwards, executed to him a written sale of the mules and horses on the place, besides certain agricultural implements and machinery, at prices named, amounting in the aggregate to $3770, pretended to have been paid in cash. A few days afterwards, Nathan executed a lease of the same mules and horses to George, and so, saving the paper change of title, matters remained in statu quo.

The plaintiff’s mortgage notes had all matured in 1881, but payment was extended from time to time. In December, 1884, plaintiff sent an agent to the plantation to examine into its condition with a view to determine as to its further renewal.

The agent was received by George Gerson; was shown over the plantation. The buildings, implements, working animals, etc., were exhibited to him, and every thing done to convince Mm that the plantation was well equipped and in good working order, and the plaintiff’s mortgage secure. Much of the conversation took place in the presence of Nathan, and the agent’s impression was that he joined in the representations. When, twenty-five days afterwards, the plaintiff came to foreclose its mortgage, it found the plantation stripped of every movable thing. All the mules and horses had been spirited away; the corn-cribs had been emptied; the horned cattle had been secreted in the woods; the agricultural implements had been removed and sold; even the iron tanks and syrup pumps of the sugarhouse had disappeared.

We have no concern in this case with anything but the mules and horses which Nathan G-erson removed to New Orleans and sold. They were subject to plaintiff’s mortgage, to his full knowledge; his pretended title was a sham and fraud, and utterly insufficient to divert the mortgage ; the removal was fraudulent. If the mules were iu his possession, the plaintiff might still subject them to his mortgage; and, as he has sold them and received the price, he must answer for it to the mortgagee.

We had occasion, iu a very recent case, to consider the effect of sale and removal of immovables by destination upon the rights of mortgagees, and we there held that such, sale and removal when done in good faith would defeat the mortgage; but we carefully excepted from the operation of that principle, fraudulent acts; and this case presents a conspicuous example of the kind of acts excepted. See 1st Paul Pont, No. 420.

See Weil vs. Lapeyre, not yet reported.

We fix the price received by defendant at two thousand dollars, and judgment must go accordingly.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now ordered, adjudged and decreed that plaintiff recover judgment against defendant, Nathan Gerson, for two thousand dollars with legal interest from judicial demand, and costs in both courts.


author: Bermudez, C. J.

text:
    No. 9613.
    The State ex rel. J. Plaisent vs. The Orleans Railroad Company.
    A mandmms will issue to compel a Railroad Company to allow the transfer, on its books, of shares in the name of the Relator, when it is established that a party, to whom the company says the stock belongs in part, has been finally adjudged not to have any interest therein.
    The judgment, although foreign, having acquired the force of res judicata, must be given that effect. ' On a charge that it is erroneous, this court will not go behind it to test its correctness.

      APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      T. Gilmore & Sons, for the Relator and Appellant.

      F. D. Ohrétien, for the Respondent and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a mandamus to compel the company to permit the transfer on its books of 117 shares of its stock, owned by the relator.

The company refuses to allow the transfer on the ground that part of said shares belong to a daughter of relator, Mrs. Chéron, now in France, for having inherited the same from her mother, relator’s deceased wife.

In answer to this objection the relator says that his said wife died on the 5th of March, 1876, and that he acquired 75 of those shares on the 16th of June, 1877, and the remaining 42 on November 8, 1876.

It appears that witli'a view to silence what pretensions Mrs. Chéron had to part of the 117 shares standing in the name of relator, the latter instituted proceedings before the “Tribunal Civil de l’Arrbndissement de Montpellier, Department de l’Herault,” against his daughter and her husband, for the purpose of having said shares .to be decreed to be his exclusive property, and that after due proceedings, the judgment of that court was rendered accordingly on August 8th, 1885, and duly recorded on the 20th following.

It is not pretended that the court was without jurisdiction, or that the forms of law were not observed, or that the judgment is not final and executory; but it is claimed that it is erroneous, inasmuch as part of the shares actually belongs to Mrs. Chéron. We cannot review it. The judgment concludes Mrs. Chéron and can not be vicariously attacked by the company for her benefit when she cannot do so herself. Bes adjudícala, pro veritate'habetur.

The record does not show that Mrs. Chéron ever signified any discontent to the company, and she is not heard to complain presently.

The judgment is a finality and is full protection to the company.

It is to be observed that two of the children of the relator, born of his marriage with his deceased wife, have joined in the petition which sets forth the exclusive ownership of the shares by their father, the relator.

The District Court made the mandmnus peremptory as to one hundred and four shares, but refused it as to the remaining thirteen. The mandamus asked should have been absolute in every respect.

It is therefore ordered and decreed that the judgment appealed from be amended, so as to make the mandamus peremptory absolutely, and that accordingly the company allow the transfer on its boobs of the one hundred and seventeen sharks (including the thirteen excepted by the lower court) standing in relator’s name thereon, and that the amended said judgment be affirmed with costs.

Judgment amended.


text:
    No. 9478.
    The State of Louisiana vs. J. R. Helveston and Charles Duplessis.
    The pleas of autrefois convict and autrefois acquit have derived from the common law principle that no person shall be twice put in jeopardy of life or limb for the same offense, and neither of the pleas can be sustained unless the previous trial invoked as a plea in bar .shall have been for the same charge contained in the new indictment or information, and unless the evidence required in one charge would bo sufficient to establish the other.
    Hence the plea in bar is not good to defeat a charge of “ assault with a dangerous weapon, to-wifc: a knife, with the intent to kill and murder and inflicting a wound less than mayhem,” when it appears that the previous trial of the accused set up in bar, had been on a charge of’robbery, although at the same time and on the same person.
    APPEAL from the Tenth District Court, Parish of Rapides. Blaelcman, J.
    ILf. J. Cunningham, Attorney General,.for the State, Appellant.

      J. C. Bayne and B. P. Hunter, for Defendants and Appellees.
   The opinion of the Court was delivered by

Poché, J.

The defendants were accused in the same information of the crime of assault with a dangerous weapon with intent to commit murder and inflicting a wound less than mayhem. A nolle prosequi was entered as to Duplessis, and Helveston pleaded in bar that he had been tried on the day before on the charge of robbery on the same person and at the same time and place, and on the same facts, to be proven by the same witnesses; that he had been convicted of larceny, and acquitted of robbery; and that therefore the said conviction ’ and acquittal were a bar to this prosecution.

The State demurred; the plea was tried on the face of the papers and sustained, and the State appeals.

The' District Judge seems to have misapprehended the exact scope and meaning of the charge propounded against the accused in the present case. In his reasons containedin the bill of exceptions reserved by the District Attorney we find the following language: The evidence required to convict for robbery was the same as that required to convict on the indictment for assault with a dangerous weapon with the intent to kill and murder.”

Tested under the tenor of the information in this case, the reasons of the District Judge quoted above contain two serious errors, one of fact and one of law. In the first place, the accused is not therein charged with an assault with a dangerous weapon with intent to kill and murder,” but the charge is an assault with a dangerous weapon, to-wit: a knife, * * * with the intent * * * to murder, and with said dangerous ■weapon to have inflicted a wound or wounds less than mayhem.”

As understood by the trial judge the charge did not necessarily imply or include actual violence or a battery, and in the information, actual violence, such as blows, cuts or thrusts are necessarily included, and must be proved, in order to convict under the charge therein propounded.

It takes no argument to convince the legal mind that the elements of that charge do not constitute the necessary ingredients required in the crime of robbery, and that therefore they do not denounce the same offense as the latter crime.

As defined at common law, robbery “ consists in the felonious and forcible taking from the person of another, or in his presence, against his will, of any chattel, money or valuable security to any value, by violence or putting him in fear.” Archibald Crim. Plead. 224.

The charge under which the accused was convicted of larceny, read in substance that, “ with force and arms * * * he did wilfully and feloniously and by force and by putting in fear * * * * take and carry away from, the person and in the presence of said Spencer,” etc. It is therefore apparent that both at common law and under that charge, the essence of the crime of robbery could have been made out without proof of actual violence or blows, but simply by showing or displaying of force or threats and a putting in fear.

Hence we conclude that in order to substantiate the charge of robbery as contained in that information the State was not, and could not have been, required to prove the use of actual violence by blows, shooting or otherwise, in the absence of which proof the charge in the subsequent information, to-wit: an assault with a dangerous weapon, to-wit: a knife, with the intent to kill and murder, and inflicting a wound or wounds less than mayhem, could .not have been made out, and proof of actual violence such as blows, cuts or thrusts with the intent as described in the information, was of the essence of a legal conviction. The pleas of autrefois acquit and autrefois eonviet are founded on the common law principle, which was subsequently consecrated in the Constitution of the United States, and which has been retained in the criminal practice of this State, that no person shall he twice put in jeopardy of life or limb for the same offence,” and in order to support either of these pleas the accused must show that the previous trial which he sets up in bar was precisely for tlie same offense which had been charged in the subsequent proceedings; and that the same proof would be sufficient to establish either of the charges for which he is put on his trial. Hence it has been held that a plea in bar to a charge of entering a dwelling house by day time with intent to steal was not good when the previous charge on which the accused had been acquitted was for larceny. State vs. Shaw, 5 Ann. 342.

The verdict of the jury on the trial for robbery, shows that in their belief the violence, if any, was not immediately connected with the offence of larceny which they found against the defendant. Hence it is clear that they did not, as they could not, pretend to acquit the. defendant of au assault with intent to murder and inflicting a wound less than mayhem. Our conclusion is therefore that the offences charged in the two informations are not the same, and that the judgment sustaining the plea in bar is erroneous.

It is therefore ordered that the judgment of tlie District Court he annulled, avoided and reversed, that the plea in bar interposed by the defendant herein he overruled, and that this cause he remanded for further proceedings according to law.


text:
    No. 9705.
    The State of Louisiana vs. R. T. Backarow.
    Section 805 R. S. denounces 1st,- Tlie forcible seizing and carrying a person against his will out of tlie State. 2d, The forcible seizing and carrying a person against his will from one part of the State to another; and 3d, The imprisoning or secreting a person without authority of law. It is not necessary to charge that the person imprisoned or secreted was forcibly seized and imprisoned or secreted.
    It is sufficient to charge in the language of the Statute that the person was carried from one part oí the State to another and not from one parish to another, and proof that the carrying of the person was from one part of a parish to another, or from part of a city or town to another, will sustain the charge in the bill on this count. This Court cannot determine whether the evidence does or does not justify the verdict.
    APPEAL from the First District Court, Parish of Caddo. Mieles, J.

      M. J. Cunningham, Attorney General, for the State, Appellee:
    A. — Anindictment charging that the prisoner “with force and arms, -wilfully, forcibly, unlawfully and against her will, the person of Mrs. Inez 'W'atkins, a married woman, did seize, secrete and convey whilst in transit from Claiborne parish, in said State, to the State of Tesas, and whilst in the city of Shreveport, State of Louisiana, from the depot of the Vicksburg, Shreveport and Pacific Railroad Company, in a hack waiting at said depot ror that purpose, forcibly and against her will, to the hou.se of ill-fame of Dannie Roos in said city,” etc., does not charge the Common Law crime of abduction as defined and denounced by the Statutes of England and the American States. 24 and 25 Viet. C. 100. S. 53 ; "Wharton’s Or. L. 8th ed. § 586; Bishop on Statutory Crimes, §§ 616, 617, 619, 620, 622; Desty’s Am. Or. L. § 136, b. 137, a. 138.
    B — The indictment charges the offense laid down in Section 805 R. S, This section denounces three separate and distinct crimes: 1st. The forcible seizing and carrying of a person out of the State. 2d. The forcible seizing and carrying of a person from one part of the State to another. 3d. The imprisonment or secretion of a person without authority of law.
    C- — In an indictment under this section no specific intent need be alleged. The general criminal intent presumed to be involved in the commission of all crimes is implied in this one, but “intent ” is not of the essence.
    D — The word “ forcible ” is necessary to the description of the two first two acts, as without it the Statute would not denounce a wrongful act. Differently with the last.
    It charges an aggravated form of false imprisonment.
    Imprisonment is an unlawful restraint put upon one’s personal liberty. Coercion is necessarily involved in the act. Therefore, force being included in the term, it is unnecessary in the indictment to all ege a ‘4 forcible 'false imprisonment. ’ ’
    D — The indictment.need not allege that the carrying was from one to another parish of the State. Any two points in the State alleged in the indictment is sufficient.
    G — The indictment sufficiently lays the venue in the parish of Caddo as to both counts.
    H — The Supreme Court cannot review questions of fact.
    I —The Supreme Court cannot determine a question of law necessarily based upon certain facts, unless the evidence is properly presented to them for review. State vs. Redwine, 37 Ann. 780.
    J — The last count charges the offenses laid down in both Sections 805 and 796, R. S.

      M. 8. Grain, District Attorney, and W. H. Wise on the same side.

      John H. Hides, M. O. Mstner and B. J. Looney for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant appeals from a sentence of three months imprisonment in the parish jail.

He was tried and convicted under an indictment which charged that he, the accused (quoting): “with force of arms wilfully, forcibly, unlawfully and' against her will, the person of Mrs. Almez Watkins, a married woman,” did seize, secrete and convey whilst in transit from Claiborne parish in said State, to the State of Texas, and whilst in the city of Shreveport, State of Louisiana, from the depot of the Vicksburg, Shreveport and Pacific Railroad Company, in a hack waiting at said depot for said purpose, forcibly and against her will to the house of ill fame of Fannie Roos in said city, conducted and known as the Fannie Roos House, or otherwise as the Lewis House, with .intent forcibly and against her will the said Almez Watkins to abduct and secrete.”

The prosecution was instituted under Sec. 805 of the Revised Statutes of 1870, which reads :

“Whoever shall forcibly seize and carry out of this State, or from one part of this State to another, or imprison or secrete any person without authority of law, and all persons aiding, advising and abetting therein, on conviction shall be imprisoned,” etc.

There was a motion to quash the indictment on the following grounds:

1st. That the indictment charges defendant with abduction, a crime unknown to the laws of Louisiana.

2d. That there is no penalty fixed by the laws of the State for abduction.

3d. That the indictment does not charge that the abduction was for any unlawful purpose, either for the purpose of lucre or prostitution.

4th. That the second count does not charge th it the defendant forcibly seized or detained the person mentioned in said bill and in consequence no offense is charged.

a. The three first grounds may be considered and disposed of together.

Whether the indictment charges the crime of abduction or not, or whether there is any penalty prescribed for such offense, or whether abduction is a crime under our laws, is immaterial, if the acts charged in the indictment constitute an offense under the laws of the State. We have critically compared the charge in the indictment with the language of the Statute referred to, and by whatever name we may call the crime therein denounced, whether “abduction,” “kidnapping,” or other name, there can be no doubt that the averments contained in the indictment do make out the precise statutory offense embraced in the section quoted above.

Nor does the law prescribe that any unlawful purpose, whether of lucre or prostitution, shall be expressed or mentioned in the indictment, or shall in fact exist or prompt the acts denounced, in order to complete or make up the offense.

b. The indictment does charge that the accused did forcibly seize the person therein named. It was not necessary to charge that he did forcibly imprison or detain — both of those words or terms necessaiily imply force (Bishop Cr. Law, vol. 1, sec. 555), and there is nothing in the language of the section that requires that those terms and the acts they define should be thus qualified.

II.

There was a motion in arrest of judgment filed. This motion embraced, substantially, the same grounds as the motion to quash, together with the following additional ones, which we quote:

“The indictment charges defendant with no offense under Sec. 805, R. S., in this: That it does not charge that defendant forcibly seized and carried away any person out of the State of Louisiana into another State, or from Caddo parish, in said State, into another parish in said State, or from one part of said State to another part of said State.”

This ground is evidently suggested by the crime of kidnapping, as constituted and defined by the common law. One of the elements of that crime was, that the party abducted or kidnapped should be carried away out of the realm of England into some other country. The counsel for defendant seem to deduce from this — but not logically as we conceive — that since the common law offense has been so modified by the Statute referred to as not to make it essential to the constitution of the crime that the carrying away of the person should be from one country to another, or from one State to another, but may be committed by the carrying from one part of the State to another part of the State that the part or parts of the State referred to mean the political or geographical divisions of the State.

Where the words of a Statute are plain and unambiguous it is not at all necessary to resort to the history of similar laws or Statutes to arrive at its meaning — nor is permitted to invoke those rules of construction which are provided as a means or guide to clear away ambiguities or obscurities in a law. If its language is plain and clear, that language alone is to be consulted.

We find not the least obscurity in the language of the Statute under consideration. It denounces, 1st, the act of forcibly seizing and carrying a person out of the State; 2d, the forcibly seizing and carrying a person from one part of the State to another part of the State; and 3d, the imprisonment or secreting a person without lawful authority.

It was intended to secure the personal liberty of the citizen. The terms, from one part of the State to another, has a broad signification and was evidently so intended. If the law maker intended that it was the removal from one parish of the State to another parish of the State that constituted the offense, it seems to us it would have been so declared. It was intended to give it a broader sweep with a view to provide ampler individual protection.

It strikes us that it is just as gross a violation of personal liberty to seize and drag a person from one part of a parish to another, from one place to another, or from one house to another, even if in the same parish, town or city, as it would he to carry him out of the parish or even out of the State. Nor can the definitions in dictionaries or the principles and rules of philology make the matter plainer.

The Statute declares: “Whoever shall forcibly seize and carry 1 * from one part of the State to another.” The indictment charges that the defendant did so seize and carry the person named therein from the railway depot in the city of Shreveport to a certain house named and described in said city. This was sufficient, and it was clearly from one part of the State to another, within what we conceive to be the clear meaning and intendment of the law.

It is a construction that addresses itself to common sense and common justice, and we have no doubt of the correctness of our conclusion.

III.

In the motion for a new trial it was urged that the evidence was insufficient to convict, and especially to show any forcible seizure of the person or any intent to carry the person against her will to the house of ill-fame designated, and in the bill of exceptions taken to the overruling of the motion for a new trial portions of the evidence of the person against whom the offense was alleged to have been committed is copied and pointed out to show the failure on the part of the State to make good the charge.

We have said once and over again that we cannot consider such evidence, even if brought up in this manner. It is the sole province of the jury to deal with and consider the evidence adduced on the trial of the case and bearing on the guilt or innocence of an accused. A careful reading of the Nelson case, cited to sustain the counsel’s pretensions in this respect, will be found to be direct authority against it. If a jury will convict on insufficient evidence or against the evidence, this Court is without power to afford relief, unless the error of the jury in this respect has been caused or is connected with the charge of the trial judge seasonably excepted to.

Judgment affirmed.


text:
    No. 9689.
    J. E. Bourke, Adm., et. al. vs. Joseph M. Wilson and Eugenia Wilson.
    To constitute a presentation of a -will in the sense of the Code it is not necessary that it shall be delivered to the witnesses by the testator with his own hand, and no particular words or set form of speech is necessary to constitute a declaration that the instrument is the testator’s will.

      It is sufficient if the will, having been written by another at the request of the testator and out of the presence of the witnesses, shall have been read aloud by one of the witnesses in the presence and hearing of the testator and of the other witnesses, and is then held towards the testator by the writer of it who asks. “Is this paper that has just been read your will?” and the testator answers, “It is,” and it is then signed by the testator and is attested bv the witnesses in his and their presence.
    The object of the Jaw is to guard against a false instrument being exhibited instead of the' true will, and that object is accomplished by the formalities above.recited.
    The circumstance that the writer of the will read it aloud a second time after the witness had so read it is not an interruption or turning aside to other acts.
    "Where only some of the heirs contest, it is not good ground of exception that all are not joined for non constat that the others wish to contest.
    APPEAL from the Ninth District Court, Parish of Concordia.' Young, J.

      J. JRF. Luce, for Plaintiffs and Appellees.

      Dagg~\& Mason, for Defendants and Appellants.
   The opinion of the Court was delivered by

Manning, J.

This case involves the validity of a will.

Hughes Wilson died in October, 1884, without any hut collateral heirs and bequeathed the hulk of his property to Eugenia Wilson, one of the defendants. The plaintiffs are the administrator and some of the heirs of the deceased. Hughes Wilson and the other defendant J. M. Wilson were planting-partners in the cultivation of a place called Moro, and J. M. Wilson is also the husband of Eugenia.

Pending the application for probate of the will, the plaintiffs brought this suit to recover the property left by the deceased, alleging that the defendants have illegally taken possession of it. The probate proceeding was consolidated with this suit and the lower court annulled the will.

The will is nuncupative under private signature and the objections to its validity are that there was no presentation and declaration of it as a will — that the affirmative answer of the testator to the question whether it was his will is not such presentation and declaration as the Code requires — that if such answer can he deemed equivalent to a presentation and declaration, it can only he so when the question is asked by one of the witnesses after the will has been read aloud by him in the presence of the others and of the testator — that the reading of the will by the writer of it after one of the witnesses' had read it was an interruption and turning aside to other acts ” — that the testator did. not cause the -will to be written as the Code prescribes.

The will was written by Nathan M. Calhoun an attorney-at-law at the request of the testator who told him the disposition he desired to make of his property.

All the witnesses to the will and the writer of it concur in their statement of the circumstances of its writing, reading, etc., -which are these:

Mr. Calhoun wrote the will in the bed-room where the sick man was lying. Just as he was finishing it the five witnesses entered the room. After they were seated Mr. Calhoun handed the paq>er -writing to Z. W. Holmes, one of them, and requested Mm to read it, and he read it aloud in the presence and hearing of the testator and of the other witnesses. Calhoun then took it from Z. W. Holmes and read it himself aloud and in the presence and hearing of the testator and of all the witnesses. The room was small about 16x18 feet in size. Calhoun then went to the bedside of the testator and held up the paper to him and asked, “Ts this your will that Mr. Holmes has just read?” and he. answered “ It is.” Calhoun then handed the paper to the testator and he signed it in the presence of the witnesses, all of whom immediately signed their names in the presence of the testator and of each other.

We do not perceive in what particular there was a failure to comply with the requirements of the Code for this kind of testament, which are that it will suffice if in the presence of five witnesses the testator presents the paper on which he has written Ms testament or caused it to be written out of their presence, declaring to them that that paper contains his last will. Rev. Civ. Code, Art. 1581.

To constitute a presentation of the will in the sense of the Code it is not necessary that it shall be delivered to the witnesses by the testator with his own hand, and no particular words or set form of speech is necessary to constitute, a declaration that the instrument is the testa - tor’s will. The will was written by the request of the testator after he had given the scribe directions of the dispositions he wished to make, and was immediately twice read aloud by two different persons, one of them a witness, in the presence of the testator and the witnesses. The testator’s affirmative answer to the question whether it was his will is as complete a declaration as if he had held the paper aloft and asserted that it was Ms will. The object of the law is to guard against a false instrument being exhibited instead of the real will, and that’ object is accomplished when the testator, having heard the will read before all the witnesses, indicates by his response to a question that it is his wall. Bouthemy v. Dreux, 12 Mart. 639; Falkner v. Friend, 1 Rob. 48.

The circumstance that the writer of the will read it aloud after the witness had. read, it is not an interruption or turning aside to other acts.

The caveators rely confidently on McCaleb v. Douglass, 16 Ann. 327, and the digest of that decision by the reporter certainly sustains them. That case has been commented on in Buntin v. Johnson, 28 Ann. 796, and Wood v. Roane, 35 Ann. 865, where it was said the facts in that case do not shew a presentation. However that may be, the decisions in the Bouthemy and Ealkner cases already cited amply justify our ruling in the case at bar.

Other questions are presented in the record which need not be noticed because they concern the ownership of the property in the event of the annullment of the will.

Exception was made to the capacity of the administrator to claim the nullity of the will which seems not to have been pressed. Some of the heirs joined him and exception was made that all of them should have joined him. It is presumable that the non-joiners did not wish to contest and those that did are not deprived of the right to do it because others would not contest.

It is ordered and decreed that the judgment of the lower court is avoided and reversed, and that the instrument presented for probate as the last will of Hughes Wilson is hereby declared to be valid in form and is entitled to be probated and executed. It is further decreed that the plaintiffs’ demand is rejected and that the defendants have judgmen t against them for their costs in both courts.


text:
    No. 9618.
    Henry Charnock vs. Fordoche and Grosse-Tête Special Levee District Company.
    Acts No. 78 of 1876 and 46 of 1877, oreat-ing the Fordoclie and Grosse-Téte Levee Distriot for the purpose of constructing and maintaining certain special levees and authorizing the levy of a contribution upon the lands protected thereby, are not inconsistent with the Articles of the Constitution of 1879 on the subject of taxation.
    Such local assessments for publio works, levied not on taxable property generally for mere common public benefit, but only on particular property specially benefited by the works, as an equivalent for the direct benefit conferred, are not considered as taxes within the meaning of constitutional restrictions on the power of taxation.
    PPEAL from the Fifteenth District Court, Parish of Pointe Coupée. Toist, J.

      Olivier 0. JProvosty, for Plaintiff and Appellant:
    1. Acts 78 of 1876, and 46 of 1877, create a special levee district, and authorize the levy of a specific tax per acre on the lands protected by the levee of the district.

      2. It is not deniable that said tax is a local assessment levied for the benefit of the locality affected; nor is it deniable that such assessments are not as a general rule embraced within the meaning of the provisions of State constitutions on the subject of taxation.
    3. But the authority to levy said local assessment must be roferred to some one of the known powers of the Legislature, by which private property may be taken for public use. These known powers are, the eminent domain, the police power and the taxing power. Any power outside of these exercised by the Legislature in the taking of private property is vagrant power, or, in other words, unconstitutional power. Bill. Mun. Corp., § 587, (455); Sedgwick, Const. Constr. 2d Ed. Pomeroy’s notes, p. 473; Chicago vs. Earned, 34 111., 203.
    4. Said assessment is not levied by an exercise of the eminent domain; the taking under this power must be preceded by direct compensation paid in money. Resulting benefits cannot be made to take the place of the cash. Sedgwick, 469 ; Bill., § 738, (455); 7 Ann. 76, opening of Roffignac and Euphrosine sts.; Const., Art. 150.
    5. Said assessment is not levied under the police power, this power though unlimited and unrestrained within its proper sphere of action, yet must be confined to its legitimate functions; and these do not extend to the raising of money for levee purposes. If they do the constitutional restrictions on taxation for levee purposes may be easily circumvented. The subject of taxes under the police power is fully gone into, and the following authorities are cited: Cooley, Taxation, Chap. XIX; State vs. Blaser, 36th Ann. 364; State vs. Hoboken, 33 H. J\, L. 280 ; Dill. Mun. Corp., § 141, (93); Cooley Const. Lim., 633, (*508); Judge Martin in Morgan vs. Livingston, YI. O. S., 235; same in his History of Louisiana, p. 213, Gresham’s Publication; Wallace vs. Shelton, 14th Ann. 499; Gillespie vs. Concordia, 5th Ann. 403; Police Jury vs. Cumming, 9th Ann. 503 ; and Bishop vs. Marks, 15th Ann. 147.
    6. Said assessment is therefore levied by an exercise of the taxing power. The settled doctrine is that local assessments are levied under the taxing power. Cooley, Tax. p. 430 ; Dill. Mun. Corp., § 752 (596) ct scq,; Sedgwick, Const. Constr. p. 426.
    7. The exercise of the taxing power is limited by Art. 209 Const., and said assessment is authorized in excess of that limit; the Acts authorizing it are therefore inconsistent with the Constitution, and consequently were repealed by the adoption of the Constitution. Laycock vs. Baton Rouge, 36 Ann. 329.
    8. The fact that -said assessment is levied for local benefit does not liberate it from the operation of ATt. 209, for its purpose, though local, is still a purpose, and falls within the all-embracing expression of Art. 209, “for all purposes whatsoever,” Eolsom vs. Hew Orleans, 32 Ann. 713; Witkowski vs. Sheriff, 35 Ann. 904; Morgan R. R. vs. Cage, Sheriff, 34 Ann. 508; Municipality vs. White, 9 Ann. 446; Taylor vs. Chandler, 9 Heisk, Tenn.,' p. 366.
    9. The meaning of Art. 209, as embracing local assessments, is further emphasized by the proviso which permits additional taxation for the purpose of erecting and constructing public buildings, bridges and works of public improvement. The levee of defendant is a work of public improvement such as the proviso has reference to. It is either that or it is a‘Work oí private improvement, and in the latter case the assessment would be for a private purpose, and on that score null and void.
    10. The'permission so' cautiously and limitatively doled out to the Legislature by Art. 214. to divide the State into levee districts, and to “levy a tax not to exceed five mills on the taxable property situated within the alluvial portions of said districts subjeot to overflow,” is an affirmative pregnant with the negative that the Legislature may not divide up the State into special levee districts, and authorize the levy of unlimited specific taxes for levee purposes. The Legislature has the right to special-levee-district the State in that manner, if the Constitutional provisions on the subject of taxation do not apply to local assessments for local purposes.

      11. By Article 203, Constitution, “ The valuation put upon property for the purposes of State taxation sliall be taken as tbe proper valuation for purposes of local taxation in every subdivision of tbe State.” This article ex vi terminorum has reference to defendant’s assessment, which is a local tax. Said assessment, therefore, if it can be levied at all, nmst be levied ad valorem.

    12. Acts 78 of 1876 and 46 of 1877, were never submitted for approval or ratification to a vote of the inhabitants of the district affected by their provisions. They are, therefore, wholly dependent for their validity on the Legislative authority.
    13. The bonds issued by defendant were issued for a debt contracted posterior to the adoption of the Constitution of 1879; there can be, therefore, no question in this case in regard to the impairment of the obligation of contracts.

      Thomas H. Hewes, for Defendant and Appellee :
    The “ contribution ” which the defendant is authorized by law to levy upon all lands protected by its levees, etc., is not a “tax, toll or impost” within the meaning of the Constitution. Board, etc. vs. Lorio, 33 Ann. 276.
   The opinion of the Court was delivered by

Fenner, J.

The defendant is the same corporation which figured as plaintiff in the case of Board of Levee Commissioners vs. Lorio Bros., decided by us in 1881 and reported in 33d Ann. 276.

Although tbe present case comes up in somewhat different shape, and although some other questions are raised in the pleadings, the only point insisted on before ns is tbe same which was determined in tbe Lorio case, viz : the constitutionality of the assessment or contribution levied by defendant upon lands protected by its levee, in conformity with Acts No. 78 of 1876 and 46 of 1877.

Plaintiff, however, calls our attention to the fact that although the Lorio case was decided after the adoption of the Constitution of 1879, yet the assessment there concerned had been made prior thereto and was governed by the Constitution of 1868. Hence be insists that with regard to the assessment now in contest, which was levied in 1884, it is governed by the present Constitution, and as the provisions of the latter instrument on the subject of taxation are different from, and much more extensive than, those contained in former constitutions, bis case presents a new and different question from any hitherto determined. His contention is technically correct in the limited sense that the particular question as to whether local assessments of the character here presented are governed by tbe provisions of the present Constitution on the general subject of taxation, has not yet been distinctly decided.

After much reflection, however, we conclude that the principles on which such contributions were excluded from tbe operation of similar provisions in former constitutions, apply equally to that now in force.

We concede, at once, tbe first proposition of plaintiff, viz: that the exaction of such contributions is an exercise of the taxing power, in its broadest sense. There is nothing in this case to support the assessment as an exercise of the police power or of the power of eminent domain, and unless we are to attribute it to some “vagrant power,” there is no other soui'ce from which it can spring except the power of taxation.

Indeed, this has never been seriously contested. In referring to the cases in which it was held that such contributions were not governed by provisions of statutes and constitutions on the subject of taxation, Mr. Burroughs says: “An examination of the cases in which these expressions wexe used will show that it was not claimed that these burdens imposed upon the citizen were not imposed in the exercise o the taxing power, but merely that the word tax, or taxes, as used in some statute or in the Constitution of a State, was not intended to include local assessments; it was a question of intention tobe deduced from the instrument in which the word tax is used.” Burroughs Taxation, § 5.

In a very able argumént counsel for plaintiff refers to the original cases in which this doctrine was established in this and other States, and shows that many of the reasons assigned would have been inapplicable to the provisions of our present Constitution ; and we are free to confess that as an original question, it would be difficult to support the exclusion of local assessments from the operation of these provisions.

But, in the course of time, the matter has been considered over and over again in our own courts and in the courts of our sister States and by an inveterate course of decision, with rare exceptions, it has ripened into a settled principle of constitutional construction, that local assessments or contributions provided for the purpose of constructing public works for the advantage of particular districts and levied on property benefited thereby and with reference to such benefit, are not considered as taxes within the meaning of constitutional restrictions on the power of taxation. Board vs. Lorio Bros., 33 Ann. 276; Railroad vs. Board of Health, 36 Ann. 666; Burroughs on Taxation, Chap. 22; Cooley on Taxation, Chap. 20.

We are bound to assume that this principle was present to the minds of the framers of our present Constitution, and that they were well aware that, in the absence of special provision to that effect, the restrictions which they placed upon the exercise of the taxing power, would not be considered ai- applicable to assessments of this character.

We have carefully scrutinized the unusually elaborate provisions on the subject of taxation and the careful restrictions which have been placed upon the taxing power of the State, of parishes, and of municipalities, not only for general purposes of government but also for works of public improvement; but we find none which cover or exclude local assessments of the character presented in this case.

Such assessments are not to be confounded with ordinary local taxation. The distinction is well pointed out by Mr. Burroughs : “A tax for the local purposes of a county is imposed on the persons or property within the county, as distinguished from other parts of the State, but it is usually imposed on. all the subjects on which the State imposes a tax for State purposes. In local assessments, on the contrary, the tax is imposed on the real estate alone and only on such real estate as is benefited by the local improvement. * * The benefit of the improvement is not only local but also specific, benefiting particularized property, and therefore the tax may be levied on this property which receives a benefit. * * Assessment is not considered as a burden, but as an equivalent or compensation for the enhanced value which the property denves from the improvement.” Burr. Tax. p. 460.

When we closely examine the provisions of our Constitution we find that they apply only to ordinary local taxation, levied in particular districts, it is true, but levied on all taxable property within such districts without reference to special benefit to particular property. Such taxation must submit to the restrictions imposed thereby. Thus, under Article 209, a parish or municipality desiring to levy an increased tax on all the taxable property within its limits for some work of public improvement, could not do so without compliance with the requirements of that Article under legislation carrying the same into effect. And so we have held. Surget vs. Chase, 33 Ann. 233.

But these provisions have no application to that kind of taxation which falls under the denomination of strict local assessments which are not levied upon taxable property generally for the common public interest, but upon particular property specially benefited, as an equivalent for the benefit conferred.

Assessments of this kind are not refeired to in the provisions of the Constitution upon the subject of taxation, which relate only to taxation upon property generally, whether throughout the State or within particular districts. If we were to deny the legislative power to ordain or sanction such assessments we should destroy a common and most useful function of government. Thus it would not be possible for the city of New Orleans to pave or widen a street or sidewalk without first submitting the question to a vote of all its taxpayers and without making the burden common to them all, although only a particular part of the property would monopolize the benefits.

Rehearing refused April 5, 1886.

Such was not the intent of the Constitution, nor the interpretation placed on it in practice and legislation.

The assessments involved here belong strictly to this class, as appears from the Acts authorizing them and from the evidence in this record.

We have che satisfaction of knowing that the legislative department of the government, under the existing Constitution, concurs with us in sustaining the constitutionality of these Acts and assessments, as shown by Act No. 97 of 1882, referring to and confirming the same.

Judgment affirmed.


author: Bermudez, O. J.

text:
    No. 9531.
    City of New Orleans vs. U. Koen & Co.
    Merchants who indiscriminately transact business, both as 'wholesale and as retail dealers, are liable to a license in each capacity.
    APPEAL from the First City Court of New Orleans. Bonier, J.

      Walter H. Bogers, City Attorney, and Branch K. Miller, Assistant City Attorney, for Plaintiff and Appellee.

      A. J. Lewis, for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, O. J.

The city sues the defendants as wholesale tobacco dealers for a license of $50 for the year 1885. The defense is that the city ordinance which levies it, is illegal as it violates Article 206 of the Constitution and- Act 4 of 1882.

From an adverse judgment, defendants appeal.

The record contains the following statement of facts, viz:

“It has been proved herein that long prior to the institution of this suit, defendants procured from plaintiff their license as retail dealers in tobacco, cigars, etc.; that they have but one place of business in this city; that they sell to any customer, whomsoever, any quantity desired, whether one cigar, or one or more boxes of cigars, or a pound or bale of tobacco, or any portion thereof, and not by the original or unbroken package or barrel only; but in both modes, that is, they sell a single cigar or dozen thereof, or a box, besides selling.to dealers in original and unbroken packages; that this is the manner in which their business has been conducted during the year 1885; that they have paid no license for the year 1885 to the city of New Orleans as wholesale dealers.” Under that condition of tilings the defendants argue that, as they have already obtained from plaintiff the requisite license for the same year, 1885, as retail merchants, they cannot legally and constitutionally be called upon to pay license as idholesale merchants, as the 6th section of Act No. 4, approved January 4,1882, of the General Assembly of this State, under the 17th class, page 64, specially provides that no license as wholesale dealer can be required of one who sells by retail, that is, ‘ by other than by the original or unbroken package or barrel only ’ and who sells to others than ‘dealers for resale’ and that, ‘if they sell in less quantities than original and unbroken packages or barrels, they shall he considered retail dealers and pay license as such ? and Art. 206, Constitution of 1879, limits the city ordinance to the terms of the State law.

The section invoked reads as follows:

“Seventeenth class, when gross sales are less than one hundred and fifty thousand dollars, the license shall be fifty dollars ($50); provided, that no person or persons shall be deemed wholesale dealers, unless he or they sell by the original or unbroken package or barrel only; and provided further, that no person or persons shall be deemed wholesale dealers unless he or they sell to dealers for resale.

“If they sell in less quantities than original and unbroken packages or barrels, they shall be considered retail dealers, and pay license as such.”

The last portion of Art. 206 of the Constitution is in these words:

“No political corporation shall impose a greater license than is imposed by the General Assembly for State purposes.”

It is manifest that the intention clearly expressed of the Legislature, was to require a license, as well from wholesale as from retail dealers.

The law distinctly provides that, shall be deemed wholesale dealers, those who sell only by the original or unbroken package and those, who sell to dealers for resale, but it wisely adds ex industria, that if they (such dealers) sell in less quantities than original and unbroken packages or barrels they shall be considered retail dealers and pay license as such.

The argument that the word “ only ” found in the first part of the Act, must be read also in the concluding provision, as to who shall be considered retail dealers, for although it is omitted therefrom, the connecting sense requires it to be understood — far from helping, demolishes and gives away the defense completely.

Indeed, if it were true that, are to be considered as retail dealers only such as sell in less quantities than original and unbroken packages or barrels, it would irresistibly follow that, as the defendants do not sell only in such quantities, but also otherwise — they are to be deemed wholesale dealers and thus are amenable and chargeable.

The city ordinance (No. 1048, C. S.) follows the State law and is not therefore illegal or,unconstitutional.

Under the statement of admitted facts it is impossible to arrive at aiiy other conclusion than that the defendants carry on the tobacco business, both as wholesale and retail dealers.

As the law reaches dealers who transact operations, either as wholesale or as retail merchants, separately, it undoubtedly affects them when they do both indiscriminately.

Judgment affirmed.


author: Eenner, J.

text:
    No. 9482.
    Henry Beer vs. The Louisiana Light and Heat Producing and Manufacturing Company and the United Gas Producing Company of Pennsylvania.
    The two defendant companies entered into a contract whereby tlie Louisiana company transferred to the Pennsylvania company certain valuable rights and privileges iu considera, ti.on of the Pennsylvania company’s agreement to pay to the bond subscribers of fcbe Louisiana company, who would transfer their subscriptions to it, a certain'amount of money.
    Held: That this created an obligation on the Pennsylvania company to pay the money, subject to tbe suspensive protestativo condition of the bond subscribers’transferí ing their subscriptions, and no term having been fixed, the obligation was not discharged by the failure and refusal of the plaintiff, a bond subscriber, for a time, to accept the benefit of the contract. Having subsequently offered to perform'the condition'by transferring his subscription, the Pennsylvania company’s obligation to pay became complete,'it having received and enjoyed the full consideration of its contract, and^plaintiff’s vacillation and delay having placed it in no worse condition.
    Inasmuch as plaintiff’s suit is in affirmance of the contract which itwas' alleged th©;Louia* iana company had no right to make, and as it is not tbe latter’s fault that plaintiff; has not long since received the stipulated consideration, plaintiff’s claim against the Louisiana company has no foundation.
    APPEAL from the Civil District Court for the Parish of Orleans. Bazarrus, J.
    25. JB. Kruttschnitt for Plaintiff and Appellee.

      John M. Bonner for the Louisiana Company, Defendant and Appellant :
    1. Where two parties enter into an agreement to have certain things done for a certain price, if nothing has been done under the agreement and nothing has been paid on account of the agreement, it is competent for these parties, by mutual consent, to can cel and annul said agreement on any terms they may deem proper.
    And where said agreement is an imprudent one, it is the duty of the contracting parties to cancel and annul it and not to execute it.
    2. The plaintiff was neither a stockholder nor a property holder in the Louisiana company, and thereto! e could not interfere in its management.
    The most favorable light in which he can be considered is that of a creditor, and as a creditor he could not interfere with the management of the corporation. Morawetz on Corp. § 560.
    But when the amount he paid on his subscription had been returned to him, he was not even a creditor.
    Should plaintiff be considered a stockholder, he was bound by the act of the majority. K. C. C. Art. 444.
    3. “ it is not necessary to make a tender when it is reasonably certain that the offer will be refused.” 106 TJ. S 202; 105 XT. S. 321; 99 XT. S. 186; 26 Ann. 453.
    The doctrine of tender cannot be invoked when plaintiff was offered a certain price, to be paid within a certain time, for his bond subscription, and he unconditionally declined to accept the offer. !R. C. C. Arts. 1801--1803; 15 Ann. 609.
    4. Suppose the action taken by the defendants on the 5th of February and the 16th of April gave the plaintiff a right of action, then what was his proper remedy? He certainly cannot sue in affirmance of a contract that he refused to make, and cannot treat a proposition that was rejected as the equivalent of a proposition that had been accepted.
    His remedy was either to have sued for damages for the violation of his agreement, or to have brought suit to recover the amount he had paid upon his subscription, as having been paid upon a consideration that had failed, 20 Central Law Journal, p. 35. and authorities there cited.
    Plaintiff has not sued for damages, and he refuses to receive back the amount he paid upon his subscription.
    5. Plaintiff was not injured in any manner by the resolutions of the 16th April, 1883 for his own evidence shows that the Philadelphia company had advanced the money that paid for the real estate, then standing in the name of the Louisiana company.

      Kennard, Howe db Prentiss and John M. Bonner for the Pennsylvania Company, Defendant and Appellant:
    1. The action is not by a stockholder, or for specifie performance, or for damages, but on an alleged contract to pay a fixed sum.
    2. A contract is an agreement or convention, which is, essentially, the consensus of two or more persons with respect to the same object — the being of one mind as to one thing. Dig. 2, 14, § 1; Larombiére, T. 1, p. 3; C. H. 1101; C. C. 1761 Such mutual assent must co-exist at the same moment of time. Benjamin on Sales, 2d ed. p. 33. A proposition is rejected even by a modified assent, and still more by a refusal to accept, and conies to our end. Id. p. 49. Its force is exhausted. Wharton on Contracts, § 9, a.
    3. The Pennsylvania company, in this case, simply made a proposition to the plaintiff to pay severally to him and the other bond subscribers, who would transfer to it their subscriptions within sixty days, a certain sum.
    4. So far from accepting this proposition the plaintiff rejected it, and it was “at an end.” Benjamin on Sales, pp. 33-49 ; Wharton on Contracts, § 9 a.
    5. Where a proposition is rejected, it is at an end and its force is exhausted, and no tender by the proposer is necessary to prevent the person rejecting it from afterwards coming baok and accepting it so as to make it binding. Id.
    6. There was no stipulation pour autrui by the companies to the profit of plaintiff. Even if the Louisiana company acted in the premises as mandatory of plaintiff, yqt this state of facts does not result» in a stipulation pour autrui. Pothier on Obi. No 74; Laurent, Yol. 15, No, 555
    7. But if a stipulation pour autrui was made by tlie companies in favor of plaintiff, it was a proposition, and when rejected by plaintiff it came to an end. Larombiére, Vol. 1,119; *\Viggin vs. Blower, 5 Rob. 413.
    8. The Pennsylvania company cannot bo held herein, on any assumption of the obligations of the company, because—
    a. There was no debt from the Louisiana company to plaintiff to be assumed.
    b. Even if there were such a debt, the promise to pay it by the Pennsylvania company being a promise to pay the debt of another, must be in writing, duly signed, and no parol evidence can be received, and if received, even without objection, can have no legal effect. Rev. Stat, of La Sec. 1443; Merz vs. Labuzan, 23 Ann. 747; Dillon vs. Dillon, 32 Ann. 645; Laidlaw vs. Hatch, 75 111. XI.
   The opinion of the Court was delivered by

Eenner, J.

For the proper decision of a case like this, a clear and exact statement of the pertinent facts is all-important.

The Louisiana company (above named) was a body corporate under the laws of Louisiana, organized for the purpose of manufacturing and vending gas in this State.

It had held some contract with the National Petroleum and Water-Gas Company, of New York, which is not presented in this record, and is unimportant and mentioned only for the understanding of the case. We have no concern with the history or conduct of the corporation prior to November 16, 1882, on which date a contract was entered into between it and the Pennsylvania company, defendant herein, of which the following were the salient features:

1st. The Pennsylvania company hound itself to erect gas-works in the city of New Orleans, specified and described in the contract, the work to he immediately begun and to be completed by June 1, 1883.

2d. The Pennsylvania company conveyed to the Louisiana company licenses to the exclusive use in this city and State of certain patented processes for the manufacture of gas, including the Hanlon, Johnston, Low, Edgerton and other processes, owned or controlled, or to be owned or controlled, by said Pennsylvania company.

3d. It transferred to the Louisiana company all the rights and privileges conferred by a certain ordinance of the city of New Orleans, No. 6824, Administration Series.

4th. As a consideration for the foregoing, the Louisiana company agreed to pay $270,000 in money and $850,000 of its full-paid stock.— $26,000 of the stock to he paid at once, and the money and the remaining stock to he paid monthly and proportionately as the work progressed.

The contract contained many other stipulations not material to our present purposes.

Of course, tlie execution of tliis contract required a provision of funds to meet its obligations, and on the following day, November 17, 1882, the directors of the Louisiana company passed a resolution for the issuance of $750,000 of bonds of the company, having forty years to run, bearing six per cent interest, payable semi-annually, and secured by mortgage “on all the property, machinery, mains, rights, privileges and franchises now owned by this company, or that may be hereafter acquired.” The subscribers to these bonds were to pay ten per cent on December 1, 1882, and the rest in installments not exceeding fifteen. per cent monthly, as called for by the board when required to make payments as the work progressed.

Plaintiff, Henry Beer, subscribed to $30,000 of these bonds, and paid the ten per cent due on December 1st, and no other call thereon has ever been made.

Under the contract between the Louisiana and Pennsylvania companies, the $26,000 of stock stipulated to be paid in cash were duly delivered, but no further payment was ever made or called for, because, before much progress had been made in the work, an entire change of plan was resolved on between them. It is to be observed, however, that the Louisiana company had never made any default, and its rights under the contract subsisted unimpaired.

It appears that Edgerton, patentee of the process bearing his name, and which was the one contemplated to be used by the companies, objected to its use on the ground that under his contract with the Pennsylvania company he had stipulated that, where old companies existed, before new companies should have the benefits of its patents, he should first have the privilege of offering them to the old companies; and lie claimed the exercise of that right. To settle this difficulty, Gibbs, the manager of the Pennsylvania company, came to New Orleans, and after consultation with Edgerton and the old New Orleans Gas-light Company, concluded that an arrangement might be made satisfactory to all parties concerned.

The basis of this arrangement was an agreement of the New Orleans Gas-light company to buy from the-Pennsylvania company the same exclusive license to use. in the city of New Orleans tlie processes for manufacturing gas Which had already been tiansferred to the Louisiana company. What was the price1 paid by the New-Orleans Gas-1 light Company is not revealed by the record, but it may be assumed to have been sufficient to, justify the subsequent proceedings.

Of course it was essential to cancel the contract with the Louisiana company and to obtain a retrocession of these processes before they could be validly transferred to the New Orleans Gas-light Company.

To this end the Pennsylvania company, through Gibbs as its manager, entered into a contract with the Louisiana company, the exact terms of which will best appear by the following extract from the minutes of the Board of Directors of the latter company, of date February 5, 1883:

“Mr. W. W. Gibbs submitted the following proposition :

“The United Gas Improvement Company, of Philadelphia, -would return to the subscribers to the bonds of this company all the instal ments paid by them and twenty-five per cent on the amount of their subscriptions to the bonds of this company, payable in cash within sixty days from this date in consideration of certain changes and modifications in the contract between this company and the United Gas Improvement Company (and the transfer of said subscriptions to said company).

. “On motion of W. W. Gibbs, seconded by Mr. H. 0. Seixas, the following resolution accepting said proposition was adopted by a vote of eight yeas to two noes :

In consideration of the U. S. Gas Improvement paying a suificient sum to return-to subscribers all the instalments paid by them, and the further payment by said company of twenty-five per cent cash for each of said subscribers on the amount of their subscriptions to the bonds of this company, who will transfer their subscriptions to the U. S. Gas Improvement Company:

“Be it resolved, That so much of the contract now existing between this company and the U. S. Gas Improvement Company as requires' the erection of gas-works for this company, and so much of said contract as gives to this company the exclusive use in this city of the processes and patents mentioned therein be cancelled and annulled; and in full satisfaction of all payments to be made under said contract by this company, that the president and secretary be and are hereby authorized and empowered to issue to said U. S. Gas Improvement Company, 2340 shares of the full paid stock of this company, said stock to be in full payment and satisfaction of said above-mentioned contract and the exclusive use of the processes and patent's mentioned therein in the State of Louisiana, outside of the city of New Orleans.

“On motion of Mr. Gibbs, seconded by Mr. Laplace, the following resolution was unanimously adopted:

“Be it resolved, That the resolution adopted by this Board on the 17th day of November, 1882, authorizing the issue of bonds to the amount of $750,000, be rescinded, cancelled and annulled.”

The foregoing embodies the contract bel ween the companies, which was never reduced to more authentic form. It has been fully executed. The Philadelphia company has received under it everything which it stipulated to receive. The former contract stands cancelled and annulled. The Philadelphia company got back the exclusive light to use the patents and processes referred to in this city and State, and, so far as the city is concerned, has sold and transferred them to the New Orleans Gas-light Company. It has paid to every bond subscriber, except Beer, the amount of cash paid on their subscriptions and the twenty-five per cent additional, and has received the transfer of their rights under said subscriptions.

Beer, at first and for a considerable time, refused to ratify or abide by the contract, but subsequently changed his mind, and on December 13, 1883, offered to surrender his subscription and demanded payment according to the contract, which was declined. He, thereafter, made a formal tender, and then brought the present suit for $10,500, being $3,000 cash paid and $7,500 as twenty-five per cent of his subscription for $30,000, asserting the solidary liability of both the defendant companies.

The gist of the defense of the Louisiana company is: that, in its contract with the Pennsylvania company, of February 5, 1883, it acted within its powers and did what it had a right to do; that plaintiff was not injured, but was benefited thereby; that if he failed to receive the benefit to which he was entitled under the contract, it was not the fault of the company, but his own in refusing to receive it when it was offered to him; and that, therefore, the company is, in no manner, liable.

Inasmuch as plaintiff sues in affirmance, and not in avoidance, of the contract, and inasmuch as the record fully establishes that plaintiff’s failure to reap its benefits is due exclusively to his own fault, we consider the defense perfect, and the judgment against this company must be reversed-.

■ The defense of the-Pennsylvania company rests on the assumption that in its contract of February 5th with the Louisiana company, it-merely made a proposition to the bond subscribers, which was not a-contract and could only'becom'e so upon the acceptance thereof by said subscribers; and that-when Beer,--instead of accepting, rejected the proposition, the latter was at an end and all obligations arising from it were terminated.

It is impossible for us to take this view of the case. The relations of the parties and the terms of contract imperatively forbid it. The obligation of the Pennsylvania company to pay the sum herein claimed arises, not from a mere proposition, but from its completed contract with the Louisiana company.

It is vain to say that the proposition was made to the subscribers. The record shows that it was made to the Louisiana company at a meeting of its board of directors, and was then and there accepted and ripened into acomplete contract,under which thePeunsylvaniacompany, in consideration of value received, bound itself absolutely “ to pay a sufficient sum to return to subscribers all the instalments paid by them and to pay twenty-five per cent cash for each of said subscribers on the amount of their subscriptions, who will transfer their subscriptions to the U. S. Gas Improvement Company.”

The only condition affixed was the transfer of the subscriptions. No term was set within which this condition was to be performed. Whether considered as a stipulation pour autrui or as the act of a nepotiorum pester or unauthorized mandatary, the obligation of the Pennsylvania company, the consideration of its contract, was to pay, not merely to offer or propose to pay. The company seeks to discharge its obligation to pay by pleading a former offer to pay and refusal to receive.

Beer, offering to perform the only condition to which the company’s obligation was subjected, is denied payment because ho had previously refused to perform it. But the Code says: “An obligation to pay money, without any stipulation for time, may be enforced at the will of the obligee.” Art. 2050. And again: “The contract of which the condition forms a part is, like all others, complete by the assent of the parties; the obligee has a right of which the obligor cannot deprive him; its exercise is only suspended, or may be defeated, according to the nature of the condition.” Art. 2028. “If there be no fixed time the condition may always be performed, and it is not considered as broken until it is certain that the event will not happen.” Art. 2038. “The condition being complied with, has a retrospective effect to the day that the engagement was contracted.” Art. 2041.

Discarding the untenable theory that the company’s dealing was a mere proposition, and holding that it incurred, under its contract, an obligation to pay money, subject to a suspensive protestative condition on the part of the obligee, without a term, which condition is accomplished by plaintiff’s tender of transfer of his subscription, we consider that the foregoing textual provisions conclusively demonstrate the company’s liability.

Indeed, upon principles of equity and justice, it is difficult to discover any reason why the company should escape its obligation, voluntarily incurred, to pay to. plaintiff the sum claimed. It has received and enjoyed the full consideration of its contract, the value of which has been in no nmnner impaired by .plaintiff’s vacillation and delay in availing- himself of its benefits. The only effect of the delay h&s been to leave (he money in (he company’s hands for a considerable period without interest.. • ’

There would seem to be an acknowledgment of plaintiff’s right in the offer of the company to pay plaintiff the three thousand dollars which he. had paid on his subscription, because, under the terms of its contract, if it is liable for so much, it is liable for the whole.

Under every view, the law and justice of the case are with the plaintiff. It. is therefore ordered, adjudged and decreed that the judgment appealed from, in so far as it condemns the Louisiana Light and Heat Producing and Manufacturing .Company, be annulled, avoided and reversed, and that ip other respects it be affirm.ed,.plaintiff and appellee -to pay costs of appeal.