source: Caselaw Access Project

author: DeBlanc, J. Spencer, J.

license: Public Domain

text:
    No. 6943.
    In the matter of the Mechanics’ Society.
    The Act o£ the Legislature of 1877 reviving the charter of the New Orleans Mechanics’ Society operated as a waiver, on the part of the State, of all penalties incurred by the society on account of their having failed to comply with the conditions imposed on them by their charter of incorporation, and estops the State from claiming an enforcement of those penalties.
    Where an act of transfer expressly conveys the occupancy and possession “former," not the mere usufruct, but the full ownership of the property is thereby passed.
    The court may on its own motion appoint a liquidator, or receiver of a corporation, where its charter makes no provision for its liquidation, and the necessity for its liquidation shall arise.
    A corporation authorized to sell its property is in general authorized to mortgage it.
    The New Orleans Mechanics’ Society was authorized to mortgage its property to raise the moans necessary to make the repairs required by the joint resolution of the Legislature of 1867, and the holders of the mortgage may sell the property to satisfy their debt, but the purchaser of the property must take it subject to the same liability of forfeiture to the State it was under while owned by the society.
    j^PPEAL from the Third District Court, parish of Orleans. Monroe,

      H. N. Ogden, Attorney General, J. C. JSgan, Assistant Attorney General, and T. C. Flanigan for the State, appellant.

      Chas. F. Schmidt, T. J. Semmes, Gibson & Gibson, J. W. Thomas and A. C. Lewis for defendant and appellee.

      A. Voorhies for intervenor.
    The opinion of the court was delivered on the original hearing by DeBlanc, J., and on the rehearing by Spencer, J.
   DeBlanc, J.

In 1821, the Legislature of the State incorporated— for charitable purposes and the promotion of mechanical arts — the New Orleans Mechanics’ Society, whose existence was'then limited to twenty years, and — thereafter—extended to the 17th of February, 1871.

In 1850 — by an act approved on the 21st of March, the Governor of the State was authorized and directed to transfer and deliver, and he did transfer and deliver to the New Orleans Mechanics’ Society, the possession and occupancy, for ever, of a lot of ground situated in this city and belonging to the State.

By sec. 3 of said Act, it was provided: “ That the said Mechanics’ society shall immediately after the execution of the donation, begin, and within three years thereafter, complete the construction of a brick or stone building on said ground, suitable for a library, lecture room, and cabinet of natural history and mechanical inventions, and the said Society shall, as soon as said building is completed, establish and maintain a library for the use of the mechanics of N ew Orleans, and an annual course of lectures on the physical sciences and particularly those connected with agriculture and the mechanical arts.”

And by 'sec. 4: “ That if the sai.d Mechanics’ Society shall fail to do and perform any of the acts required of it by the second section of this act, then the land of which they are hereby given the possession and occupancy, shall be taken possession of by the Governor on behalf of the State, and all the buildings or improvements made thereon, shall be forfeited for the use of the State.”

In 1857, a building which — in obedience to one of the conditions of the act of 1850, had been, by the society, erected on the ground thus transferred by the State, was destroyed by fire, and the Legislature appropriated the sum of ten thousand dollars, to aid the society in rebuilding its destroyed edifice, on the conditions imposed by the Legislative act. When the war broke out between the American States, that edifice — known as the Mechanics’ Institute — had not been completed.

In 1867, the State, or — as contended by its counsel — the State officials, who — before that date — had leased the Institute, procured an extension of the term of said lease; and — by a joint resolution of the Legislature — the’owners of the Institute were required to have it properly finished for the first day of the month of November of that year. To again assist them in so doing, an additional appropriation of fifteen thousand dollars was placed at their disposition.

These appropriations not being sufficient, the society, in order to comply with the joint resolution already referred to, negotiated three of its own notes, secured by a conventional mortgage on two lots of ground, that transferred to it by the State, another purchased from Samuel Locke, and the buildings thereon erected. These notes were negotiated to A. Rochereau & Oo. and the Factors’ and Traders’ Insurance Association. They advanced the money needed by the Mechanics” Society, and — according to the evidence — the money so advanced was used for exclusively the completion of the unfinished edifice.

- On the 17th of February, 1871, the charter of the Society expired. As the charter was silent as to the mode of the liquidation of its affairs, its creditors — who admit its undenied solvency — applied to the late Superior District Court to appoint a liquidator to take charge of, and settle its affairs. Their application was granted, and the court’s appointee authorized to sell the Society’s property to pay its debts.

On the 10th and 16th of February, 1876, the holders of the three negotiated notes brought suit against the liquidator, for the recognition and enforcement of the mortgage securing the payment of their claim-To their demand, he opposed the plea of prescription. As — however— by the effect of a payment of interest, that of the notes had been — by mutual consent of the debtor and creditors — extended until the expiration of the charter, on the 17th of February, 1871, prescription — though apparently in sight — had not been acquired, when — on the 16th of February, 1876, the creditors’ citations were served on the liquidator. His exception was properly overruled, and — on the 5th of June — they obtained judgment for the amount of their respective claims, with recognition of their mortgage.

On the 14th of November, the court ordered the sale of the mortgaged property, and — between the date of that order and the sheriff’s advertisement of the sale so ordered, the very same property which — it is urged — has not ceased to belong to the State, was — nevertheless— seized and advertised for sale, to satisfy the taxes thereon levied by the State, and which then — with the costs incurred — amounted to three thousand three hundred and twenty-eight dollars and thirty five cents.

To protect their rights, the creditors were compelled to pay those taxes, and — this done — the sheriff proceeded to advertise the sale ordered by the Superior District Court; but the creditors had hardly made the peremptorily exacted payment of State taxes, and thus removed what they considered as the only obstacle to the exercise of their rights, than a suit was instituted — in conformity to a concurrent resolution of the Legislature of 1875 — to forfeit to the State the mortgaged property, and enjoin its sale under the order of the 14th of November. The reasons alleged to obtain the forfeiture are, that the Mechanics’ Society has failed:

First — To maintain a library for the use and benefit of the mechanics of New Orleans and of the citizens of Louisiana.

Second — To maintain a course of lectures on the physical sciences, and particularly those connected with agriculture and the mechanical arts.

Third — To keep the building erected by the aid of the money appropriated by Act No. 126 of 1857 “ constantly insured to the largest amount possible,” as required and contemplated by said Act.

To the action filed in behalf of the State, the creditors excepted on eight different grounds, one of which is that, “ by act of the Legislature, promulgated on or about the 15th March, 1877, the State has revived the charter of the New Orleans Mechanics’ Society for a term of fifty years, and has specially recognized its rights to the property claimed in this suit, and has enlarged the franchises and privileges of the society, and left it untramrneled with any particular conditions as to the use of the property herein claimed, and has, by said Act, waived and abandoned the right, if any it ever had, to claim the rescission of any of the aforesaid donations or the forfeiture of any property of said Society, and there is no authority, if any ever existed, for the prosecution of this suit.”

We concur in the assertion that — prior to the expiration of its charter — the Mechanics’ Society did not comply with all of the conditions attached to the State donations: we do more — we admit that the society did itself violate, and that — at the suggestion and with the assistance of those who then represented the State, it again violated some of the conditions imposed upon it by the laws invoked to forfeit its charter and confiscate its property; but can we disregard the fact that — as to the most important of the several violations now urged against it — its avowed accomplice was a sovereign State? That accomplice would not be allowed — if it so intended — to take advantage of a wrong, in the perpetration of which the largest share should have to be charged to its own credit. The State has — however—undoubtedly excused and expressly waived the forfeiture which — to no inconsiderable extent, was incurred at the instigation of its mandataries.

The act promulgated in 1877 may be — as contended — of doubtful parentage: it may be that it was, through the door of fraud, that it stole its admission in the statute book — but it is there, and — since its admission — two Legislatures have met and adjourned, without even attempting to repeal it. Their failure to do so amounts to its ratification, and— were it a legislative bastard — it is now too late to contest its legitimacy. That act, which revived for fifty years the expired charter of the society, was passed — not with only a simple notice of the causes which might have justified the forfeiture sought to be obtained, but with notice that a suit was pending — at the date of its adoption — to enforce the rights which, it is alleged, have reverted to the State, on account of said forfeiture. Under these circumstances, the adoption of the act promulgated in 1877 operated — it is evident — as a waiver of any incurred penalty.

16 Serg. 140 — 1 Pa. 4269 Wend. 3512 Pa. 546 — Abbott’s Dig. of Corp., No. 54, pp. 354 and 355.

That act is not unconstitutional: its title expresses its objects-rit impairs no obligation, divests no vested right: it neither revives nor amends — by reference to its title — any repealed or existing law, nor has it a single one of the characteristics of the ex post facto or retroactive legislation prohibited by the constitution. It injuriously affects no one, invades no right, and is not within the prohibition.

2 Pet. 3808 Pet. 8811 Pet. 420 — 10 IT. 395 — 17 H. 4562 Pa. 744 Wall. 172.

The State alone was interested in the enforcement of the forfeiture of the society’s charter, and — in advance of any decree declaring that forfeiture — the Bepresentatives of the State have — in the exercise of the powers delegated to them — renounced, in its name, to any and every right which it might have acquired under the expected decree. Can the courts of the State ignore that legislative renunciation, and destroy — in obedience to the concurrent resolution of 1875 — the charter which, in 1877, was revived for half a century? Most assuredly not. The act adopted in 1876 and promulgated in 1877 is more than an ordinary estoppel: it is the published evidence of an absolute abandonment — by the State — of the action filed in its behalf against the New Orleans Mechanics’ Society.

Did the society acquire — by the donation from the State — the unqualified and perfect owneship of the lot of ground on which its institute is partly built ?

Acting under the authority of an act of the Legislature, the Governor of the State transferred to the society, and forever, the possession and occupancy of said lot. These terms, as to the property donated— transferred a right by which it was to be perpetually held by the donee, and so held to the perpetual exclusion of all others, not excepting the State.

In Arnauld vs. Delachaise, this court — adopting the views of eminent commentators on the civil law, said with them: “ that perpetuity is contrary to the very essence of usufruct, and if the entire enjoyment of an estate has been expressly bequeathed in perpetuity to a community, the right thus bequeathed would have only the name of usufruct, and the property itself would pass by that description.”

“On voit — as remarked by Mourlon — combien serait restreinte 1’utilité de la propriétó, si elle était a perpétuité dépourvue de ses attributs essentiels, le jus utendi et le jus fruendi. Dans la plupart des cas, son utilité serait absolument nulle pour celui qui en serait nanti. Son effet se bornerait a géner l’usufruitier dans ses projets d’amólioration sur la chose. II est done de l’essence de la propriété qu’elle ne soit point perpetuellement róduite au jus abutendi, et, réciproquement, de l’essence de Tusufruit d’etre temporaire.

Mourlon, Examen du O. N. vol. 1, p. 720.

After the donation from the State to the society, of the possession and occupancy — forever—of the lot described in the act of 1850, who would have consented to purchase, from the State, that — which we are told — remained of its entirely shorn title, and of its more than naked ownership ? The possession willingly relinquished and transferred by the proprietor, and which — by an express stipulation assented to by him — is to be perpetually enjoyed by his transferee, and — after the latter — by his legal representatives, and from generation to generation, is far more valuable than the nameless ownership retained by the proprietor, and which — by such a stipulation — would, and forever, be divested of the attributes which constitute its value. The pretended ownership, which — at no time — is to be reunited to a permanently severed and transferred possession, is not an ownership known to, or sanctioned by our laws.

The donation from the State to the society was a donation of the entire right which the State had in and to the lot. The State so construed it: the State caused it to be assessed as belonging to the society, levied taxes upon it, and seized it for the satisfaction of the taxes so levied. The Legislature of the State rented it from the society, and it is manifest, the State — as to the property donated — reserved but one right, one which it could exercise only in case the society failed to do and perform any of the acts required of it by the second section of the act of 1850, and that was the right to forfeit — for its own use — the buildings and improvements which were to be erected-on said property, and to resume the possession which — otherwise—was to be perpetually enjoyed by the donee.

In 1877 — after its resurrection — the society intervened in this suit, and — for the first time — contested the validity of the proceedings by which it was put in liquidation. The terms of its intervention, which was not pressed in the lower court, and which — here—seems to have been abandoned, are indefinite and vague. It could not deny that its charter had expired by limitation, that it was solvent, that neither its charter nor the general laws of the State contained any provision as to the mode of the liquidation- of its affairs. It does not deny the correctness of its creditor’s demands, which was fully established by the declarations of its president and secretary; and it is shown that if those creditors had not paid, out of their own funds, the taxes levied and due on the society’s institute — the whole of its immovable property which— when that payment was made — had already been seized for said taxes, would have been sold under that seizure.

The appointment of a liquidator, under these circumstances, was— not only proper — but indispensable, as well in the interest of the society as in the interest of its creditors, and — as held in Stark vs. Burke et als. —“ there can be no question as to the power of the court, to appoint a receiver, ex proprio motu, in order to prevent the confusion and dilapi•dation consequent upon the abandonment of a company’s affairs, produced by the inefficiency of the law,” etc. 5 A. 7403 A. 182.

Had the society the power to borrow money and to mortgage its property to secure its reimbursement ?

By the act of the 17th February, 1821, incorporating the society, it was declared “ capable at all times hereafter of taking, receiving, purchasing, and possessing and enjoying, all kinds of estates and effects whatsoever, whether real or personal, to an amount not exceeding •■§200,000, and the same to sell, grant, convey and dispose óf,” etc.

“ A corporation authorized to dispose of its property may, in general, ■dispose of any interest in the same it may deem expedient, having the ■same power in this respect as an individual. Thus it may lease, grant in fee, in tail, or for term of life, mortgage, and though insolvent, assign its property in trust for the payment of its debts, defeating by preference where the law allows it, even the priority of the State,” etc.

Angelí & Ames, 191 — 8 Ohio, 548--5 Wend, 5901 Watts, 385 — 15 Inch 459-32 N. H. 48410 Allen 44826 A. 738.

In Bezon vs. Pike et als. our predecessors said : ‘‘ A corporation ;as an intellectual being, is vested with the powers necessary for the purposes for which it was incorporated, and can act only through its offi•cers. The authority to make loans, execute notes, pledges, etc., by corporations, is not derived from or regulated by the law of mandate •as contained in the .Civil Code, but from the law of its creation, and — if •not conferred by the express letter of its charter — may be inferred or implied from the powers actually conferred.”

23 A. 789.

If it be true — which we do not concede — that the society was not ••authorized — by the law of its creation — to borrow the money which it needed to complete the improvements essential to the purposes for which it was organized and to its very existence, the lacking authority 'was — impliedly—delegated to it by the joint resolution adopted by the Legislature on the 28th of February, 1867, which declared “ that the Mechanics’ Society — the owners of the building now occupied as the ■State House, be and it is hereby required and empowered to make the 'necessary repairs, and to finish all the rooms throughout said building, the same to be ready for occupation on or before the first of November of that year.”

It was to enable the society to do — within the space of time indicated in the resolution — -that which it was thus empowered and required to do, that it subscribed and discounted the notes held and sued upon by A. Rochereau & Co. and the Factors’ and Traders’ Insurance Association, and it was — partly at least — with the proceeds of said notes that the authorized repairs were made and the edifice completed.

The claims o£ those creditors are just, the mortgage securing those claims valid: but, though the State has parted with the ownership of the hypothecated property, it has done so on specified conditions; and the enforcement of that mortgage can — in no way — change or alter those conditions. The society’s rights in the property cannot be enlarged, those of the State cannot be reduced, by a sale made to satisfy said mortgage; and no purchaser can — by such a sale — acquire more or otherwise than the society did by the donation from the State. An already accrued forfeiture has been waived; but, for any legal cause which may have arisen, or which might arise from the date of that waiver, the State still retains the right to enforce the stipulated forfeiture.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is affirmed with costs.

On Rehearing.

Spencer, J.

We held in our former opinion that the property in controversy in this case was donated by the State, subject to certain conditions, the non-performance of which entitled the State to retake it and the buildings put thereon. Not only is this right specially reserved and stipulated in the act of donation itself, but it flows irresistibly from the general principles of the law as laid down in the Civil Code. Article 1559 provides that “ donations inter vivos are liable to be revoked or dissolved on account of the following causes^: * * * The nonperformance of the conditions imposed on the donee.”

Article 1568. “ In case of revocation or rescission on account of the non-execution of the conditions, the property shall return to the donor free from all encumbrances or mortgages created by the donee,- and the donor shall have, against any other person possessing the immovable property given, all the rights that he would have against the donee himself.”

Article 1569. “But in case of the non-fulfilment of conditions, which the donee is bound to fulfil, if it be proved to have proceeded' from bis fault, he may be condemned to restore the fruits by him received since his neglect to fulfil.” But if the non-fulfilment proceeds from causes beyond his control, he is liable for fruits, only from the date of the “ demand for the revocation.”

These articles, with the exception of the last, are but the application, to the contracts of donation, of the general principles provided for all commutative and synallagmatic contracts, to wit, that there is a resolutory condition implied in all contracts, to the effect that non-performance of an obligation by one party gives right of resolution to the other. The effect of the resolutory condition is retroactive, and puts the parties in the position of having never contracted. C. 0. 2045. The consequence of which is that the acquirer of property under that condition will, on resolution, owe its fruits from the day of the contract, and the other party the principle and interest of the sums receive^. In the case of resolution of donations, this last principle is modified as we have seen by article 1569, by exempting the donee from restitution of the fruits prior to the demand in resolution, except in cases where it is proved that the non-performance has resulted from his fault. So far, therefore, from the right of the State to resolution being extinguished by the accidental destruction of the building, as claimed by counsel, its only effect would be to exempt the society from restitution of fruits and revenues — and perhaps, to a delay, which in such cases the court may accord, to enable the donee to perform the conditions and thereby avoid the resolution. C. C. 2047.

Under the operation of these elementary principles, aside from the express terms of the act of donation, it is manifest that any mortgages or encumbrances imposed upon the property by the donee, are subordinate to those paramount and underlying rights of the State, which will continue to exist “ against any other person possessing the immovable property given,” just as they exist “against the donee himself.”

We fail to appreciate the relevancy or pertinency of the argument of counsel, touching the doctrine of “ risks,” as between “ debtor ” and “creditor.” The right of resolution doe.s not depend upon the question whether the obligor was or was not in fault. That question is only important as affecting liability for fruits and revenues, and perhaps in fixing the delay to be accorded for performance.

We see no reason to modify our former opinion and decree, and it is ordered that they remain undisturbed.


author: DeBlanc, J.

text:
    No. 7401.
    The State vs. Solomon Womack.
    A verdict ot conviction for larceny will be set aside when it appears that the information on which the defendant was tried, and convicted, only chai’god that he “attempted” to commit a larceny. Such a sentence is not responsivo to, or justified by the charge, and the defendant’s objections to it maybe made after the trial and conviction.
    APPEAL from the Sixth Judicial District Court, parish of St. Helena. Duncan, J.

      J. M. Wright, District Attorney, for the State.

      James 3. Muse for defendant and appellant.
   The opinion of the court was delivered by

DeBlanc, J.

The defendant was tried for, and convicted of the offence of having “ wilfully, illegally and feloniously shot, killed and attempted to carry away, with intent to steal, take, carry away and convert to his own use, a hog worth the sum of ten dollars — the property of W. T. Woodward — against his will, consent and knowledge, to his pecuniary loss and damage, contrary to the form of the statutes of the State of Louisiana in such cases made and provided, and against thd peace and dignity of the same.”

After trial and conviction, he was sentenced to imprisonment at hard labor, in the State Penitentiary, for the term of twelve months. He appealed, and relies on a motion which he made in arrest of judgment, and in which he charges that the information filed against him is not in legal form, and not sufficient to sustain the verdict.

The record shows that — in the lower court — the district attorney asked and obtained leave to file a bill of information, charging the accused with larceny — that, having been convicted of the crime of larceny, he was sentenced to imprisonment at hard labor for the term of twelve months.

These recitals and the nature of the penalty inflicted, leave no doubt that the district attorney, the judge and the jury were under the impression that the prisoner had been informed against, and — under that impression — -he was tried, convicted and sentenced for the crime of larceny, which it may have been his intention to commit, but which— according to the averments of the bill of information — he did not carry into effect.

It is true that — if on the trial of any one for a crime and misdemeanor — it shall appear to the jury that he did not complete the offence charged, but that he was guilty only of an attempt to commit the same, he may be accordingly convicted and punished. This — however—-refers to exclusively those crimes and misdemeanors, the partly executed attempt to commit which is itself a crime. Eor instance, if — upon the trial of any person upon an indictment for robbery, it shall appear to the jury upon the evidence, that the accused did not commit the crime of robbery, but that he did commit an assault with intent to rob, the jury shall be at liberty to so return as their verdict, etc.

Rev. St. 1053, 1054

In this case, the offence charged in the bill of information is that described in section 815 of the Revised Statutes, which is punishable by fine not exceeding two hundred dollars, or imprisonment not exceeding six months, and the prisoner was tried, convicted and sentenced for a distinct offence, one which he may have intended to, but did not commit, one — the commission of which is not charged against him.

It matters not that the prisoner’s objection to the proceedings was made after his trial and conviction: he stands convicted of and sentenced for a crime which is not charged against him, and — so far as we are informed by the transcript — does not appear to have been even tried for the real offence charged. The prisoner’s objection to that irregularity, could not have been urged by demurrer or in a motion to quash —and, be this as it may — we can certainly not affirm a sentence which is not responsive to, and is not justified by the charge.

It is — therefore—ordered, adjudged and decreed that the verdict and sentence appealed from are annulled, avoided and reversed, and this case remanded to the lower court, there to be proceeded with under the same bill of information, but according to the views herein expressed and according to law. •


author: Mare, J.

text:
    No. 7247.
    City of New Orleans vs. Louisiana Savings Bank and Safe Deposit Company.
    Act No. 70 of the extra session of the Legislature of 1870, which incorporates the Louisiana Savings Bank and Safe Deposit Company, and which exempts the company from taxation except on real estate, does not exempt it from the payment of the license tax imposed by the city of New Orleans on all persons engaged in a similar business.
    Where the Legislature has imposed a license tax upon those who pursue a certain calling, or business, it cannot in the absence of any valuable consideration, exempt any particular person, or persons pursuing that calling, or business, from the payment of the license. Such an exemption is unconstitutional.
    APPEAL from the Sixth District Court, parish of Orleans. Bightor, J.

      8am. P. Blanc, Assistant City Attorney, for plaintiff and appellee.

      Chas. 8. Bice, for defendant and appellant.
   The opinion of the court was delivered by

Mare, J.

The defendant corporation is appellant from a judgment condemning it to pay a license tax of $1000, imposed by an ordinance 'of the City Council.

The answer denies the power and authority of the city to impose any license tax on defendant. The ground of exemption is not stated in the answer; but it is claimed under the act of 1870, extra session, No. 70, p. 154, incorporating the bank. Section three of this act, after stating the objects and powers of the corporation, adds, in the last clause,-“and it shall be exempt from taxation, except on real estate.” It does not appear that there was any consideration whatever for this exemption.

The amended charter of the city of New Orleans, act of 1870, extra session, No. 7, section 12, paragraph 20, specially empowers the Council to levy an equal and uniform tax on all property, real and personal, and to levy a license tax upon all persons pursuing any trade, profession or calling; “ and said license tax shall not be construed to be a tax on property.”

The city ordinance under which this license tax is claimed was adopted 19th December, 1876; and the first section, which fixes the yearly rate for the license, is as follows:

“Every bank, banking house, banking compa'ny or banking agency receiving deposits, or dealing in gold, silver, uneurrent money or exchange, or doing any banking business, one thousand dollars.”

Defendant was doing a banking business'; and it was specially authorized by section three of the act of incorporation “ to receive on deposit money and valuables of every description, * * * and to pay out and deliver the same by check or otherwise.”

Two questions arise for solution:

1st. Was it the design of the legislature, by the exemption in the act of incorporation, to relieve defendant of liability to the license tax imposed on other corporations pursuing the like business ?

2d. Had the legislature the power under the constitution of 1868, art. 118, to grant such exemption ?

First. In the act amending the city charter, section 12, paragraph 20, the distinction is plainly drawn between the license tax and the tax on property. The tax on property is ad valorem, at a fixed rate per cent; the license tax is levied by classes, at 'a fixed sum on all who fall within each class respectively. When the word “ tax,” or “ taxation” is used without prefix or qualification in revenue laws, an imposition on property, in general, is implied; and the burden on professions and callings is usually expressed by the phrase “ license tax.”

Exemptions are construed strictly; and when one claims that general laws, applicable to all persons in the same category with himself, do not apply to him, he must bring himself clearly within some positive exception. Section one of the act incorporating this bank, authorizes it to acquire such real estate as may be necessary for carrying on its business, a suitable banking house, for example, and such other real estate as may be acquired from the foreclosure of .mortgages, in the collection of its debts. It was not the intention of the legislature to exempt such real estate from taxation, but only the personal property of the bank, its capital, for instance, which would probably be taxed as part of the individual property of the stockholders. The fair and reasonable interpretation of the last clause of section three of the act, “and it shall be exempt from taxation, except on real estate,” is that the legislature had in view only that burden imposed upon property, ad valorem, which is aptly expressed by the word “ taxation,” and that it neither contemplated, nor intended to grant, exemption from that imposition on professions and callings, which, in common parlance, is denominated a license tax.”

Second. The constitutions of 1845, art. 127, and 1852, art. 123, authorized the legislature to tax all persons pursuing any occupation, trade or profession; but they did not use the word “license.” Under both constitutions licenses were granted, and license taxes were imposed and collected. The constitution of 1868 requires all persons pursuing any occupation, trade or calling, to obtain a license, as provided by law. The language of the constitution, art. 118, is:

The General Assembly may levy an income tax upon all persons pursuing any occupation, trade or calling. And all such persons shall obtain a license,, as provided by law.”

The constitutions of 1845 and 1852, left it to the option of the legislature to levy an income tax, or a tax on occupations, trades and professions. The constitution of 1868 also makes the levy of an income tax optional; but it requires, by the use of the word “shall,” persons pursuing occupations to obtain a license, as provided by laiv. This language implies, necessarily, that a license tax shall be imposed, where the license is required. If an income tax is levied, it must be upon all persons pursuing any occupation, trade or calling, that is, upon all persons having income; and a subsequent clause of article 118, requires this tax to be “pro rata on the amount of income, or business done.” The words “ all such persons shall obtain a license,” do not mean all persons upon whom an income tax is levied; because the' levying of that tax is optional. The word such” simply designates, by reference to the enunciation in the preceding clause, the persons who are required to obtain a license, that is, persons pursuing occupations, trades and callings. The words “ all such persons,” are restricted in their meaning by the qualification, as provided by law. The legislature, therefore, must provide by law, what occupations, trades and callings are subject to the license tax; and what license tax shall be imposed upon each occupation, trade and calling.

It cannot be supposed that the framers of the constitution intended to require the priests and ministers of religion, the farmer, the day-laborer, and numerous other persons pursuing occupations, to obtain a license. The power, therefore, was left with the legislature to select the occupations, trades and callings, upon which the license tax should be-levied. But all taxation is, by this article of the constitution, required to be equal and uniform. In the exercise of the discretion necessarily-deferred to the legislature by the words “ as provided by law,” certain occupations, trades and callings may be omitted; but when any such omission is made, it must apply equally to all persons throughout the-State pursuing the occupation thus omitted, and none of them can be subjected to the license tax. When the legislature has selected the occupations, trades and callings which are to be subjected to the license tax, the law of equality and uniformity requires that all persons in the State pursuing such occupations, trades and callings, according to their respective classifications, shall be subject to the license tax which is imposed upon each class respectively; and that none in any one of the-classes shall be exempt.

The legislature must be understood not to have intended to violate the constitution. If it be conceded that, in selecting the occupations, trades and callings to be subjected to the license tax, the legislature might omit banking corporations, it would not thence follow that one such corporation alone might be exempted by a special law. On the contrary, the great law of equality and uniformity forbids any such special exemption; and requires that all, the entire class, shall be exempt, or that all composing that class shall be subject to the same imposition.

Whatever the intention of the legislature may have been, whether it had or had not the power to grant any exemption to this bank, our conclusion is that the constitution forbids special individual exemption from the license tax; and that the city had the power and authority, by the express terms of the charter, to require this bank to pay the license tax, which the ordinance imposed on each and every bank pursuing the business of banking within the city limits.

The judgment appealed from is therefore affirmed with costs.


text:
    No. 7418.
    T. B. Farrar vs. H. R. Steele.
    A district attorney lias a certain discretion as to how, when, and whom to sue in the name o£ the State. In a contest for the possession of an office under the Intrusion Act, he may, in his discretion, join either of the contestants as a party plaintiff, and the contestant whom the district attorney has refused to join as plaintiff, but offered to join as defendant in tho suit, can not, on that ground, maintain a claim for damages against the district attorney.
    ÍPPEAL fromthe Thirteenth Judicial District Court, parish of Tensas. Hough, J.

      F. Howard Farrar and L. H. Beeves for plaintiff and appellant.

      Kennard, Howe & Prentiss for defendant and appellee.
   The opinion of the court was delivered by

DeBlanc, J.

In January 1877, Thomas P. Parrar was appointed, by the Governor of the State, as district attorney pro tempore, of the parish of Tensas. In February he took the oath of office, and — on the 26th of that month — presented, in the parish court, his commission and the oath which he had taken. In doing so, he remarked — as testified to by one of defendant’s witnesses and denied by Mr. Farrar — that he did not expect to be recognized by the court at that time, but wished hiis commission spread upon the minutes so as not to lose his legal rights. H. A. Garrett was then acting, and — until June — continued to act as district attorney pro tempore of the parish of Tensas.

Defendant, who had been absent from, returned to that locality on the 29th of March, and — the day after his arrival — was waited on by Colonel Reeves, who submitted — for his approval and official signature as district attorney — plaintiff’s petition against Garrett, for intrusion into the office, which he himself claimed and to which ,he was entitled.

Defendant — said Colonel Reeves — declined to accede to Mr. Farrar’s request, on the ground that he did not want to interfere with the status quo which then existed; but stated that he would place the matter in such a shape as to settle it at the next term of the district court for the parish of Tensas. He — according to Colonel Reeves’ declaration — spoke very fairly, and did not seem to question the fact that Mr. Farrar had been commissioned as district attorney pro tempore.

Shortly after this conversation, Mr. Steele left for Concordia, to attend the district court. Whilst there, he was again asked, by another friend of plaintiff, to sign the petition for intrusion, and again refused to do it. On the 6th of April, Mr. Farrar filed the present suit, in which he charges that defendant has wilfully and maliciously neglected and omitted to perform his official duties, and — on that account — claims against him, as actual and vindictive damages, the sum of fifteen hundred dollars.

In order to compel defendant to lend him his official assistance, plaintiff had to proceed against him by mandamus. In answer to the rule taken to that effect, he contended that he had been shown but one commission — that of Mr. Garret, and that — if Mr. Farrar held a commission for the same office, it had issued in error and was a nullity.

On the 26th of April, the provisional mandamus was made absolute, and — on the 16th of May — defendant, as district attorney, joined plaintiff in a suit against Mr. Garrett for the office in dispute. That suit was, on the 23d of June, finally decided in favor of plaintiff, who — in September — brought an action against his competitor, and obtained, against him, a judgment for the emoluments diverted by the intrusion, and — in October — brought another action against the parish of Tensas for the fees due him as district attorney pro tempore, from the day he had qualified in that capacity.

The Attorney General and district attorneys are classed — by the constitution of our State — as officers of the judiciary department, and it is evident that — as a general rule — the powers conferred upon them are not purely ministerial. Their discretion is limited; but that — as a necessity — they do possess a discretion, is indisputable. In nearly every instance, they alone determine when, how and who to prosecute or sue in the name of the State.

Const, of 1868, art.. 92, 94 — Rev. St. from sec. 1140.

This court has twice held that a district attorney prosecuting on behalf of the State, may enter a nolle prosequi at his discretion, subject only to the right of defendant — after the trial has commenced and evidence given, to insist on the trial. In this respect, neither the court nor the accused has the right to control the attorney of the State. 6 R. 63; 8 R. 583.

“ When duties which are purely ministerial, are cast upon officers ■whose chief functions are judicial, and the ministerial duty is violated, the officer, although for most purposes a judge, is still civilly responsible for such misconduct, when it is shown that his decisions were not only erroneous, but that he acted from a spirit of wilfulness, corruption and malice.”

44 Mo. 49132 Ind. 239 — 6 W. Ya. 486 — 20 Am. Rep. 431.

The law provides that “ when any person shall usurp, intrude into or unlawfully hold or exercise any public office or franchise within this State, it is made the duty of the district attorney or district attorney pro tempore of the parish in which the ease arises, and for the parish of Orleans of the Attorney General, to bring an action against the offending party or parties, zuhen so required to do.”

Rev. St. see. 1150,1151.

Whenever such an action shall be brought against a person for usurping or intruding into a public office, the district attorney or district attorney pro tempore, or the Attorney General — as the case may be — in addition to the statement of the cause of action — may set forth in the complaint the name of the person rightfully entitled to the office, with a statement of his right thereto; and, in such case, on proof that the defendant has received fees or emoluments belonging to said office, an order may be granted by a judge of a competent court for the arrest of said defendant,” etc.

Rev. St. sec. 1154.

Do these provisions impose, upon the State officers, a purely ministerial duty ? When they are so required to do, it is made their duty to bring an action against the offending party or parties. To comply with this imperative instruction, how must they proceed, who must they join, when the application comes from both of the rival pretenders ? Is their discretion so completely superseded," that they can not — even'for the purpose of determining whom to join — ascertain who appears to be the offending party or parties. If so, what must they do, when the two applications are simultaneously presented ?

When, and under what circumstances are the State officers commanded to interfere ? When any public office has been usurped, intruded into or is unlawfully held. Unless and until they are satisfied— not only that the law has been violated — but by whom it was violated, they cannot know who is the offending party and against whom to bring the action. Must they interfere at the request of any claimant, though they may have every reason to believe that the claimant is himself attempting to intrude into the disputed office, and though honestly ■convinced that the party alleged to be the usurper is entitled to and lawfully holds the office ? We believe not.

By the letter of the law, the Attorney General and district attorneys are expressly authorized to set forth, in the complaint, the name of the person rightfully entitled to the office, and — in order to comply with that provision of the law — they must necessarily have and exercise some discretion. Otherwise, how could they discover and set forth who is or is not rightfully entitled to the office ? This leads to the conclusion that —though the State attorneys are bound to join one of the contestants, they cannot be compelled to join that of the contestant wlm — in their opinion — is the offending party.

The Supreme Court of New York held that “where, under the law, the Attorney General is empowered to determine in what cases proceedings by information in the nature of a quo ivarranto shall be instituted to try the title to any public office or franchise, he is regarded as vested with a discretion, the exercise of which is in its nature a judicial act, over which the courts have no control.” Here, the power conferred on the State attorneys is not as broad: they cannot legally decline to institute proceedings to try the right to an office; but it is within their discretion to determine in whose name the action shall be brought. The ministerial and imperative duty imposed upon them is — when they are ■so required — to bring the action without the least unnecessary delay, and it matters not — in such an action — whether the applicant be a plaintiff or a defendant. His interest and his rights are that it be promptly instituted, promptly tried and promptly decided. He could gain no advantage by appearing as a plaintiff, nor could he lose any by being a defendant.

To test the right to the contested office;, the district attorney proposed to join Mr. Garrett in a suit against plaintiff, under the intrusion .act; his proposition was not accepted. As to his motives in refusing his official assistance to Mr. Earrar, who had been regularly appointed and who — soon after — was judicially recognized as the district attorney pro tempore of the parish of Tensas, we cannot inquire. He has not exceeded the bounds of his discretion and is not liable in damages.

It is — therefore—ordered, adjudged and decreed that the judgment appealed from is affirmed with costs.


author: Marr, J.

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    No. 7486.
    City of New Orleans vs. John P. Becker.
    A resident of the city of New Orleans engaged in an occupation which subjects him to a license tax imposed by the city, has no right to an injunction to restrain the city from collecting the license, and enforcing the penalties prescribed for its non-payment. On the other hand the city may enjoin him from carrying on his business until his license is paid, and such an injunction, sued out by the city, cannot be dissolved on bond.
    ^PPEAL from the Sixth District Court, parish of Orleans. Bightor,

      F. K McCaleb, City Attorney, and Sam. P. Plane, Assistant City Attorney, for plaintiff, and appellee.

      Frank Michinard for defendant and appellant.
   The opinion of the court was delivered by

Marr, J.

On the 13th March, 1879, John P. Becker filed a petition in the Sixth District Court praying for an injunction prohibiting the city and the police from interfering with him in his business; and to prevent the collection of a license tax.

He alleges that he is the keeper of a saloon, and as such is liable to a reasonable license tax; that he applied to the city for a license, which was refused, the city claiming $2500, and $50 additional for the Charity Hospital, under an ordinance of December, 1878, fixing the tax at that rate on coffee-houses with theatrical performances, with or without admission fee.

That he does not keep, and has not kept, during the year 1879, a coffee-house with theatrical performances, and is not liable for the license tax demanded; and that the city threatens to close his establishment, unless the license is immediately paid, and to seize it provisionally, in default of payment, by which he would suffer irreparable injury and ruin.

A preliminary restraining order was granted, and a rule nisi, requiring the city to show cause on the 15th March, why the injunction' should not issue as prayed for.

On the 14th March the city filed a petition in the same court, alleging that Becker was keeping a coffee-house with theatrical performances; that he had been conducting this business since January, 1879, and would continue to do so unless enjoined; that he refused to pay the license tax fixed by the city ordinance; and that his conduct not only deprives the city of a certain revenue, but seriously interferes with the police of the city, and, if permitted, will be productive of insubordination, and unlawful resistance to the laws and ordinances of the city.

That for the payment of the license tax the city has a privilege and a lien on the personal property of defendant, with the right to seize and sell the same; and the additional right to enjoin the defendant from carrying on the business until the license tax shall have been paid.

The prayer is for an injunction restraining defendant from continuing to carry on the business of keeping a coffee-house with theatrical performances until he shall have paid the license tax; and for judgment for the amount of the tax.

The injunction was granted as prayed for; and on the next day Becker took a rule on the city to show cause why it should not be dissolved on his giving bond, as provided by the Code Practice, art. 307.

On hearing, the court refused to grant the injunction prayed for by Becker; and also refused to dissolve on bond the injunction granted to the city. Becker appealed from both these orders.

We think the court did not err in refusing to grant the injunction as prayed for by Becker. The charter, act of 1870, extra session, page 36, section 12, paragraph 10, subjects all places for shows and exhibitions, and shops for retailing liquors, etc., to the police power of the city* Paragraph 20 authorizes the city to levy, impose and collect a license tax upon all persons pursuing any trade, profession or calling, and to-provide for its collection; and section 21 provides that “ upon the prayer of the city, * * * any court of competent jurisdiction shall enjoin the person or persons so liable to pay a license tax, and who shall refuse or neglect to pay the same, from continuing to carry on such business or profession until he shall have paid the same, and all costs and charges for the recovery and enforcement of the claim therefor.”

This right of the city is wholly incompatible with the right of the taxpayer to enjoin the city in the collection of the license tax, or from interfering with him in carrying on his business. His application for an injunction is the refusal to pay the license tax, and would authorize the city to demand the injunction to prevent the continuance of the business. The object of the law is to enable the city to compel the prompt payment of the license tax; and- that object would be defeated if the' taxpayer were allowed either to take the initiative, by enjoining the city, or to have the injunction granted to the city dissolved on bond. In either case he might by the necessary delays in the district court, and by appeal to this court, successfully resist the license tax for an entire year; and thus enjoy the privilege of carrying on his business, in defiance of the law, without complying with its requirements. In many cases, at the end of the litigation, the city would find no property to meet its demands.

Defendant does not state in his petition what business he carries on in his saloon. If it is not that for which the city demands the license tax complained of, the injunction which merely forbids him to carry on that business, will do him no harm; and if the city does not prove that he is, or that since the first of January he has been carrying on that business, he will not be condemned to pay the license tax sued for.

The injunction which defendant sought to obtain was neither more nor less than an attempt, on his part, to prevent the city from invoking the aid of the judicial tribunals to enforce its asserted charter rights. That is not a proper proceeding. He should have waited until the city resorted to the process authorized by law; and in 'defence of that suit, set up whatever he relied upon to defeat the demand.

The orders appealed from are affirmed with costs.


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    No. 7494.
    G. S. Goldsmith vs. City of New Orleans.
    There is no law governing the amount of license tax the city of New Orleans may impose on persons pursuing any particular business. It is a question of expediency, of which the city authorities are the sole judges.
    The license of $2500 a year imposed by the city of New Ox-leans on persons who carry on the business of a coffee-house, or drinking saloon, with theatrical performances attached, is not unconstitutional, and the city cannot be enjoined from enforcing its payment.
    ^PPEAL from the Sixth District Court, parish of Orleaus. Bightor,

      Belden & Duvigneaud for plaintiff and appellant.

      B. B. Me Caleb, City Attorney, and Sam. P. Blanc, Assistant City Attorney, for defendant and appellee.
   The opinion of the court was delivered by

Marr, J.

The petition alleges that the plaintiff, Goldsmith, is owner and proprietor of a bar-room or coffee-house, in which building “ he conducts what is known as a concert saloon, and in the same saloon or coffee-house where theatrical plays are performed, as so claimed by the city, but which in truth, as to the concert saloon and theatrical plays as applied to your petitioner, is not true.”

What the precise meaning of this paragraph in the petition may be we cannot tell; but the petition proceeds to state that the city demands of petitioner $2500, license tax, and $50, hospital tax; and unless he pays this tax his business will be closed.

He alleges that the ordinance imposing this tax is unconstitutional and void, because it discriminates against his business by charging for the same largely in excess of other business of the same character: that is, that some coffee-houses are required to pay $75, and theatrical plays $250, being $325, “ while for the same business petitioner is charged, as aforesaid, $2500, besides the $50 hospital tax, not imposed on others doing the same business.”

He prays for an injunction restraining the city from, collecting the license and hospital taxes, and the city and the police from closing his business.

The injunction was granted on plaintiff giving bond for $250. The city moved to dissolve for insufficiency of the bond ; and because the plaintiff is without right to enjoin the city in the premises. This motion was tried and taken under advisement on the 11th February; and on the 14th March the city obtained an order dissolving the injunction on bond.

On the 15th March the court dissolved the injunction on the motion submitted 11th February; and plaintiff appealed from the order to dissolve on bond, and from the judgment dissolving the injunction on the motion.

. This case differs from Becker’s, just decided, in that Becker alleged that he was not keeping a coffee-house with theatrical performances, while plaintiff clearly admits, by his uncandid and contradictory pleadings, that he is carrying on the precise business for which the city ordinance requires the license tax demanded. It also differs, in that Becker sought to bond the injunction granted to the city, while in this case the city obtained an order to bond the injunction granted to plaintiff. Plaintiff also alleges the unconstitutionality of the ordinance, which Becker did not do.

The city had the power, as we have seen in Becker’s case, to impose the license tax. No law lays down any rule by which the amount of this tax shall be fixed. It is a question of expediency and of police regulation, of which the city authorities are sole judges; and the judicial tribunals have no power to control tnem in the exercise of this discretion.

As to the alleged discrimination, the license tax must, be a fixed sum. for each calling or business. Coffee-houses doing no other business than that of retailing beverages may be taxed $75: theatres, which minister to the intellectual tastes by scenic exhibitions, music, etc., without furnishing drinks or other refreshments, may be taxed $250. Coffeehouses with vocal or instrumental music, or both, may be taxed $1000; and coffee-houses with theatrical performances, may be taxed $2500, without any infringement of the law of equality and uniformity.

A coffee-house with theatrical performances is neither a mere coffeehouse, nor is it a theatre, in the sense of the law. It is a distinct business; and the license for such a business is not to be ascertained by adding to the coffee-house license that required for a theatre. The city authorities may have deemed it wise to suppress such establishments by imposing a heavy license tax: they may have considered them peculiarly dangerous to the public peace, and the tranquility of the neighborhoods in which they are located; and as destructive of good morals; especially with respect to the young and inexperienced, attracted to them by the extraordinary combinations by which they minister to sensuality. What the keeper of such an establishment has the right to require is, that all who pursue the same business shall pay the same amount as license tax; and that is what the city ordinance requires.

We incline to the opinion that article 307 of the Code of Practice does not apply to such injunctions as this; but it is not necessary for us to pass upon that point now ; because the injunction was dissolved on the motion the day after the order to dissolve on bond was granted.

For the reasons stated in the case of Becker, just decided, we think the court erred in granting the injunction. If every taxpayer may arrest the city in the enforcement of its ordinances, and in the exercise of its police powers, and in the collection of taxes, by alleging the unconstitutionality of the law or ordinance, it would not be possible to administer the city government.

The judgment appealed from is therefore affirmed with costs.


author: Spencer, J.

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    No. 913.
    Wm. S. McIntosh, Tutor, vs. R. H. Kelly et al.
    .An agent employed by the tutor of a minor to manage a plantation of the minor, and employ laborers for its cultivation, is not authorized to form a planting partnership with one of such laborers.
    Where no valid contract has been made by the tutor for supplies furnished for the cultivation of the minor’s plantation, the' minor is liable for only so much of the supplies as are proved to have inured to his benefit.
    APPEAL from the Fourteenth Judicial District Court, parish of Rich-land. Parsons, J.

      Richardson & McEnery for defendants and appellants.

      Cobh & Gunby for plaintiff and appellee.
   The opinion of the court was delivered by

Spencer, J.

The minor Helen S. Stafford owned the Cherry Bluff •plantation in Richland parish. Her tutor and father was J. Q. C. Stafford, who during the year 1875 undertook the cultivation of said place, •in the name and for account of the minor. He appointed one Hunter ¡as agent or manager of the place. As such Hunter employed laborers, and made contracts with them. The general terms of these contracts were, that Stafford, tutor, should furnish land, houses, team and utensils, and advance necessary supplies. The laborer to have one half the crops, less such amount thereof as would reimburse the supplies advanced. Among the persons employed by Hunter, agent, was one J. M. Calloway. The substance of their contract was, that Calloway was “ to furnish his horse, two oxen, and wagon and his personal labor in overseeing and cultivating the plantation, and to cultivate-acres in cotton and-acres in corn. Hunter, agent, was to furnish the land and two mules free cf rent for the year 1875; Calloway to occupy the house and quarters on said place and to keep the same in good order, and superintend the building of the fence, and look to th^ care of stock; Calloway to receive one half of the crop of cotton and corn made by him on the said-acres of land, as also one half of the net share of crop made by the other laborers on said place, less the amount of supplies furnished him by said Hunter, agent.”

R. H. Kelly was a merchant at Girard, in said parish. During the year Calloway, who was a nephew of Kelly by marriage, purchased goods, wares, and merchandise from Kelly. The credit seems to have been extended solely to Calloway. He bought the goods. The account was kept against him alone. It amounted to about $690, and embraced every variety of article of family use, from candy to pickled pork — from tape, needles, and pins to osnabergs and cottonades.

In January, 1867, Kelly, alleging that Calloway and Stafford were planting partners, and that he had furnished them with necessary supplies to make the crop of 1875 on Cherry Bluff, sequestered all the cotton and corn on the place, and caused the same to be delivered to him on bond, and disposed of it.

The present suit is brought by McIntosh, tutor of said minor (the former tutor having died), against Kelly and the sheriff to recover said property or its value. There was judgment below condemning defendants to return the property, and in default thereof to pay its value, $760, less $297 83, the amount of necessary supplies furnished by Kelly to make the crop; also for $100 damages for attorney’s fees, etc. Kelly having died, his administrator, John Chaffe, appeals. The sheriff has not appealed. There was no partnership between Stafford, and Calloway, much less between the latter and the minor. Hunter himself was but a manager or overseer, and had no authority in law or fact to put either Stafford or the minor in partnership with any one.

Calloway is shown to have utterly failed to perform his part of the contract, and to have been a very idle person — neither working himself nor inducing the other laborers to work and gather the crops.

Under the testimony in this case Calloway himself could not. have justly demanded, any part of the products of the year. If Kelly had any rights against the minor, it was only to the extent that he shows that the goods and supplies furnished by him to Calloway were used in feeding the laborers, etc., whilst making the crop, and to the extent therefore that they inured to the benefit of the minor. The judge a quo had the witnesses before him, and he concluded that the minor had received benefit to the extent of $297 83. The minor, under the evidence in this case was the owner of the crop, and had advanced tothe negroes supplies quite equal to their portion of it. The seizure of it by Kelly, as the property of a planting partnership, between Stafford and Calloway, was tortious; and as he disposed of it, 'he was properly condemned to pay its value, and damages. We are not prepared to say the judge a quo erred in allowing the credit of $297 83, as being the amount of advantage derived by the minor, from the supplies furnished by Kelly to Calloway.

The judgment is therefore affirmed with costs.


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    No. 939.
    The State vs. Warren Robacker.
    An information which is “ ordered” to be filed by the court, is presumed to be filed 1 “with the consent of the court first obtained.”
    Where it appears that a defendant chargod with larceny was represented by counsel when his ease was fixed for trial, it is no ground for an arrest of the judgment in his case that he was neither present when the case was fixed, nor consented to its being fixed.
    It is no ground of just complaint that the accused was not present at the beginning of his trial, when it appears that he was present in court when his “ trial was proceeded with.”
    The want of an averment, in an information filed by a district attorney pro tern., ■ that the district attorney was absent, disabled, recused, or refused to act, is a defect which must he objected to by demurrer, or motion to quash, before trial. It cannot be availed of in arrest of judgment.
    The charge in an information that certain property was stolon in a certain parish, sufficiently sets forth the locality of the property, at the date of its theft.
    ^PPEAL from the Parish Court of Madison. Dennis, J.

      George J. Bradford, District Attorney pro tern., for the State.

      Stone & Slack for defendant.
   The opinion of the court was delivered by

Spencer, J.

The defendant was tried and convicted of the crime of larceny, on information filed by the district attorney pro tem. of Madison parish, in,the parish court of that parish. The trial was had before that court.

The case is presented to us by an assignment of errors apparent on the face of the record, which we will consider in their order.

First — That the information was not filed with consent of the court first obtained.” The record shows that the court “ ordered the information to be filed.” Courts are supposed to consent to that which they order.

Second — The accused was denied the constitutional right of trial. It does not appear that he applied for trial, and if he had, its denial would not affect the legality of his trial. But there is not the slightest foundation in the record for this charge.

Third and fifth — The case was, on the 8th of April, set for trial on the 10th, without consent or presence of the accused. The record shows that the court on the 8th appointed Mr. Slack, an attorney, to represent the accused, and fixed the case for the 10th. The accused was therefore represented by counsel present, and this presence sufficed so far as fixing the case was concerned. If a case could not be fixed for trial without the consent of accused, few criminals would be tried. Besides, his presence on this occasion was not necessary. State vs. Outs, 30 A. 1155. If he was not ready for trial, he should have asked delay when brought to the bar for trial, and excepted if delay was denied. It is no ground in arrest.

Fourth — -“The accused was not present in court at or during the opening and beginning of the trial, for the case was proceeded with on the 10th, showing that a trial was begun previous to that date.”

The case on the 8th had been fixed for the 10th. The minutes of the 10th show that on that day “ the accused was brought into court and trial proceeded with,” etc. This objection is a play upon words.

Fifth — That the court erred in overruling certain grounds filed by way of motion in arrest of judgment. These are, that the district attorney pro tem. has no right or power to prosecute or file informations except in the absence of the district attorney or in case of his disability, refusal or recusation. That it does not appear that the district attorney was absent, recused, etc. That it should have been averred in the information that he was absent or recused, etc. That the information is not according to and in conformity with the common law of England. That the locality of the property at the time of its theft is not sufficiently stated, etc.

If we were to concede the proposition that the absence, recusation, etc., of the district attorney must be averred in informations, the want of such averment would be a “formal defect apparent on the face thereof.” Objection to which, must “be taken by demurrer or motion to quash” before trial, “ and not afterwards.” B. S. sec. 1064.

We are not advised in what respect the information wants conformity to the common law, when divested of “ unnecessary prolixity.”

The charge is that the accused did (on a day named), in the parish of Madison, and within the jurisdiction, etc., feloniously steal, take and carry away, etc. If he did the stealing in Madison parish, the thing stolen must have been in that parish when stolen.

The judgment appealed from is affirmed.


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    No. 936.
    Adeline Spivey vs. Wm. Wilson.
    It is not necessary that the judge should have authorized a wife to sue for a separation of property in a ease where the husband in proper person accepted servico of the wife’s petition, and made no objection.
    The prescription which has for its object the acquisition of property, can only be invoked by one who has had possession as owner, not by one who has been in possession under a mere simulation of ownership.
    Whore the seller remains in possession of the thing sold, the 'sale is presumed to be simulated, and in the absence of proof to the contrary, will be held to be simulated.
    The wife who is separated in proporty from her husband cannot acquire property with his money, to the prejudice of his creditors.
    APPEAL from th e Eleventh Judicial District Court, parish of Lincoln. Graham, J.

      John Young for plaintiff and appellee.

      Allen Barksdale for defendant and appellant.
   The opinion of the court was delivered by

Spencer, J.

The plaintiff brings this her third opposition to the sale of 640 acres of land and one bale of cotton, seized as the property of her husband, Moses Spivey, to satisfy a judgment in the suit of A. C. Hill vs. Moses Spivey.

She claims to be owner by conveyance from C. W. Hodge, of date 6th May, 1868. She alleges that Hodge acquired at succession sale, 18th May, 1867, of the estate of J. B. Mitchell, per deed of date 6th September, 1867; that Mitchell acquired by purchase from Moses Spivey, her husband, by deed of date 13th March, 1866, and duly recorded on 17th of same month and year.

She further alleges that she was duly separated in property from her husband, and the community between them dissolved, by decree of date May 29,1867. She alleges that the property has been seized at the instance of William Wilson, and that she has been damaged to a stated amount by the illegal proceedings. She therefore opposes the sale, demands its nullity if made, and prays for damages.

The answer admits the seizure, but avers that the property is that of the husband, Moses Spivey, and that plaintiff’s judgment and separation is fraudulent and simulated. That the sales from Moses Spivey to J. B. Mitchell, from J. B. Mitchell’s administrator, Rainey, to C. W. Hodge, and from Hodge to plaintiff, are and were each and all fraudulent simulations, concocted and devised to defraud the creditors of Moses Spivey, an insolvent. That Moses Spivey remained, during all these pretended mutations of title, in the actual undisturbed and open possession of the said property, and that he never received any consideration for its pretended sale. That the conveyance by Hodge of said property to Mrs. Spivey was a sham; that she was merely a person interposed, and that Moses Spivey was the real owner. This suit or opposition was filed February 25,1878, and defendant’s answer May 18, 1878.

Plaintiff subsequently filed several pleas of prescription — that of one year against the demand in nullity of her judgment; that of five years as to the succession of.J. B. Mitchell; that of five years to the note sued upon in the case of Hill vs. Spivey, and that of ten years as to her ownership and title to the property.

We may here eliminate from this case all question as to the validity of plaintiff’s separation from her husband. We are satisfied that her demands for separation against him were well founded, and that the judgment was properly rendered, advertised and executed. The objection that she was not authorized by the judge to bring the suit has no force in it, as the husband in proper person accepted service of the ■petition and made no objection. The real and only question in this case is, were the sales and transfers from Spivey, through Mitchell and Hodge to Mrs. Spivey, simulations devised and intended to defraud creditors. If they were, the questions of prescription raised by plaintiff are immaterial, since prescription acquirendi causa can be invoked only by one who possesses as owner. The judgment of Hill vs. Spivey was rendered on a note dated in 1859 or 1860, and after contest. The judgment was dated 23d March, 1870. It was therefore a debt of Spivey existing antecedently to these alleged sales, and the judgment is res adjudicata against him. If therefore Mrs. Spivey is not the owner, but simply the alter ego of her husband — a person interposed to hold the property for him, there is no occasion to determine the questions as to whether the note upon which that judgment was predicated was or not at the time prescribed, nor whether a third possessor can or not plead such prescription after judgment.

The evidence in this record shows that Moses Spivey was much involved; that he made propositions to Gibson, who then held the note •sued upon in the Hi'l vs. Spivey case, to settle it in part, if he Gibson would assist by means of it, to cover Spivey’s property; that Mitchell, ■stated that Spivey had desired to effect a similar arrangement with him. 'Then comes the deed from Spivey to Mitchell, conveying 1160 acres of land with several horses, cows, sewing machine, hogs, etc., at the price of $2000 cash. It seems that Mitchell did execute a draft to Spivey on Standifer & Co., Trenton, for the $2000, which was so far as appears never presented. Spivey continued in possession of every thing sold, Mitchell exercising no control whatever. Mitchell died and Rainey was appointed his administrator. The lands in question were put on the inventory: but it was therein stated that the movables were in Spivey’s possession, and had not come into Mitchell’s hands. The lands were ■sold by the administrator of Mitchell on 18th May, 1867, and adjudicated to C. W. Hodge (1160 acres) for $1740 cash. As we have seen, Hodge subsequently conveyed to Mrs. Spivey, the plaintiff, for $2000 cash.

The plaintiff herself went on the stand as a witness for herself. She says she had no money in 1867, at the time she was separated from her husband. She was unable to state any sources from which she obtained money in 1867 or 1868; admits that no delivery was ever made of any of the property sold to Mitchell; that it remained in the hands of Spivey; admits that Hodge bought the land in for her; and that Mr. Spivey paid the price to the estate of Mitchell, and thinks he did so with the money proceeding from the Mitchell draft in favor of Spivey. In other words the adjudication to Hodge was paid for by Spivey, through the draft given him originally by Mitchell.

The law declares that where the seller remains in possession of the thing sold, the sale is presumed to be simulated. We have no doubt of the simulation of the sale by Spivey to Mitchell. Mitchell’s death embarrassed the transaction somewhat, and necessitated an adjudication to Hodge. The effect and result of these transactions were to put the property of Spivey in the name of his wife. Such a disguise cannot protect it from his creditors. The wife separate in property from her husband may acquire property in her own name; but she cannot do so with her husband’s money to the prejudice of his creditors.

As regards the question of Wilson’s ownership of the judgment of Hill vs. Spivey, it is only necessary to say that plaintiff raises no such question in her opposition; and that the execution in that case issued for the use and “ benefit of Wm. Wilson.” As the records of the suit were burned with the court house of Jackson parish in 1878, it is fair to presume there was authority therein for the clerk so issuing it. Besides, as we hold that plaintiff is not owner of the property seized, she has. no interest in raising the question.

The judgment below was in favor of plaintiff, and is erroneous. It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now decreed that there be judgment for defendant, rejecting plaintiff’s demands, at her costs, in both courts.


author: Spencer, J. Marr, J.

text:
    No. 941.
    J. W. Green, Receiver, etc., vs. J. W. Locke et al.
    Where application íor a jury is made at one term of the court, and overruled by the court, and properly overruled, because the party who made the application did not comply with the order of court to make the deposit for jury fees on the day of the application, the deposit of the jury foes before the trial of the ease at a subsequent term of tho court, without there having been a new application for a jury, will not entitle the party to a jury.
    Where an employee, who has been engaged to perform the duties of a certain office, which he holds at the pleasure of his employer, and who has given bond and surety for the faithful discharge of the work and duties of said office, is transferred by the employer to another parish, and there put by the employer to doing entirely different work, at a different salary, for two months, and during that time, with the consent and aid of the employer, obtains and holds the place of mail agent of tho United States, the term of his original office thereby ends, and his surety is liable for no loss caused by his subsequent misconduct., in said office, to which he is a second time called by his employer.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Parsons, J.

      Richardson & MoJMery for plaintiff and appellee.

      Cobb & Gunby for defendants and appellants.
   The opinion of the court was delivered by

Spencer, J.

The plaintiff on 5th May, 1875, employed Locke as-station and ticket agent of said company at Monroe, La. To secure his employer, Locke on that day executed his bond for $2500 in solido with ~W. EL EL Mullin and R. G. Cobb as his sureties. The bond recites that “the condition of its obligation is such, that whereas the said Joseph W. Locke has been appointed by said John W. Green, receiver, to the position of station and ticket agent for the reoeivership, at Monroe, during the pleasure of said receiver.

“Now therefore if the said Locke shall well and truly discharge and perform all the duties incumbent on him in his said capacity of station and ticket agent for the receiver, and shall render a true and faithful account of all freights which may be delivered at his station, whether for shipment or for delivery, and also of all moneys, bills, etc., belonging to said receivership, which may come into his hands or be due and payable at his station, according to the instructions and orders of the said receiver, then this obligation is to be null and void, otherwise to be and remain in full force and virtue.”

Locke entered upon the discharge of his duties soon after at $100 per month, and continued therein up to 12th April, 1876. From that date to the 17th June, 1876, he was employed by the receiver at sixty dollars per month, to conduct a line of skiffs for the railroad, carrying the United States mails between Delhi and Boeuf river, in Bichland parish. This was in consequence of the overflow of the railroad by the floods of that year. During these two months his salary as station and ticket agent at Monroe was by notice from the receiver discontinued, and Locke devoted his whole time to the superintendence of the skiff line. Through assistance and solicitation of Green; the receiver, he was also appointed by the United States postoffice department, as route agent, on the line from Delhi to Bceuf river; was duly sworn and qualified as such, and received a salary as such from the United States government during said two months. On 17th June, 1876, after cessation of overflow, Locke returned to Monroe and resumed charge and control of the freight and ticket office at Monroe, and continued therein up to 7th January, 1878. Of the receipts at said office, for the month of December, 1877, and up to 4th January, 1878, Locke failed to pay over the sum of $2045 30. The present suit is brought against him and his sureties in solido to recover that amount.

Locke’s answer is in substance a general denial — admitting however his liability for about $800. He avers that the balance of the deficit, $1200, is not chargeable to him, for the reason that on 23d December, 1877, he was ordered by the agent of the receiver to leave his office and duties as station and ticket agent at Monroe, and take charge of a train and act as conductor, for four or five days, and that another person, B. W. Jamison, was placed in charge of his office and business during this time; and that the said deficit of $1200 resulted from the mismanagement of Jamison, who failed to pay over and account for that sum, received during his occupancy of that office. That Jamison’s shortcomings cannot be charged to or recovered from respondent.

There is no disputing the fact that there was a defalcation of $2045 30 at the Monroe office. The testimony of Green, the receiver, and of McGuire and Milling, satisfies us that Jamison did pay over and account for his receipts. Locke’s own weekly and monthly statements fix his liability to the company. The evidence is voluminous, and it would be impracticable, within the compass of an opinion, to review it at length. Suffice it to say that it satisfied the court below and satisfies us that Locke owes the amount claimed of him.

But it is urged in behalf of defendant that the court erred in overruling his application for trial by jury. It is not disputed that the case was one properly-jtriable by jury, but the question is whether the defendant complied with the requirements of the law in his application. The act No. áá of 1877, sec. 9, requires that before a jury shall'be ordered in any civil case, the party applying for it shall deposit with the clerk a jury fee of $12. The defendant’s answer, containing the prayer for jury was filed on 29th April, 1878, during the motion hour — the counsel announcing at the time that the fee had not been paid, and that he desired no action on the prayer for jury until the deposit was made. The plaintiff moved the court that the defendant be ordered to make said deposit by 3 p. m. of that day, and on his failure so to do, that his application for jury be refused. The court so ordered, and defendant having failed, his application was overruled. Defendant excepted, on the ground that. he had time until the case was reached in its order and fixed for trial, and that until then the court could render no order in the matter.

We think the rule contended for by defendant would be impracticable in the country parishes, and would often operate either an indefinite continuance of a case, or necessitate the indefinite retention of the-jury. Under the rules of the court for Ouachita, the first week is devoted to civil cases, preference being given to jury cases. The second week is devoted to the criminal docket. The substance of defendant’s proposition is that he can pray for'a jury, and withhold the deposit until the case is reached on the docket for trial, then make his deposit, and demand the jury. That the court is bound therefore to keep the jury in attendance to see if the party will be entitled to it. The case was not reached at the April term; and some weeks after the defendant made the deposit. At the next term, January, 1879, when the case was called for trial, the defendant exhibited the clerk’s receipt. The court refused to order a jury, on the ground that it was too late, and that the application had already been overruled. We think that the application was not too late, had it been made de novo and in due form. The first application had been overruled, and until renewed there was none before the court. The fact that, the court had at the previous term overruled an application because no deposit had been made, did not preclude another application, at a subsequent term, when the case was first called and fixed for trial, and the deposit had been made.

The sureties have interposed various defences, of which it will be necessary to notice but one. They contend that on the 12th of April, 1876, when the receiver notified Locke that his salary as station and ticket agent was suspended, and when he employed him at a different salary, to do different work in another parish, and assisted him in obtaining an appointment as a United States mail agent, that Locke’s ■employment for which they were sureties, then terminated; and that his resumption of duty, two months later, as station and ticket agent at Monroe, must be considered as another and distinct employment, for which they are not bound. We have seen that Locke’s employment was temporary and precarious, being at the pleasure of the receiver. That the receiver, in the exercise, of this absolute discretion and power, notified Loeke that, as his services were no longer needed as station agent, in consequence of the overflow, his salary would be suspended. That he then employed Loeke at a salary of $60 per month, to run a line of skiffs in Richland parish. That Locke in pursuance of this new employment, spent two months time in said new business; and by consent and assistance of Green obtained the position of route agent. By the 20th section of the official instructions of the postoffice department to employees of the railway mail service, as well as by the 787th section of the Postal Regulations, route agents are prohibited while on duty as ■such from “ engagement at any time, in any occupation of profit or emolument,” and are enjoined to “ confine themselves wholly to the duties imposed upon them by the department.” “ The time while off actual duty is for rest and study.” For the performance of these duties Locke took an oath of office. He accepted ancl undertook them with Green’s assent. That employment was wholly inconsistent with Ms being the servant of the railroad, and his acceptance thereof was necessarily a termination of his emplpyment as such. The transaction implied on his part, as well as on that of Green, an end of his previous engagement. There is no principie of law by which the obligation of the sureties in this case can be extended to any subsequent services rendered by Locke, as station agent at Monroe. Whether those services were rendered by him, by tacit or express agreement, at the same rates as before or not, is immaterial. It was another engagement. The obligation of the first had terminated, and the sureties never assented to its renewal.

“ Suretyship cannot be presumed; it ought to be expressed, and is to be restrained within the limits intended by the contract.” Civil Code 3039.

It cannot be presumed that because a person is willing at one time to guarantee the honesty of another, that he intends to enter into a continuing guarantee of his fidelity for all time, and as often as the person employing him may see fit to engage him. The obligation of t;he surety is voluntary on his part, without profit or advantage. Courts uniformly construe his obligations strictly, and refuse to extend them toy implication, or construction. See McGuire vs. Wooldridge, 6 R. 50; Miller vs. Stewart, 9 Wheat. 680; Fasnacht vs. Winkelman, 21 A. 727; Gersen vs. Hamilton, 30 A. 737; Troplong du Cautionment, p. 143, No. 155.

It is therefore ordered and decreed that the judgment appealed from is reversed and set aside as to the sureties Mullin and Oobb, and as to them plaintiff’s demand is rejected. It is further ordered and decreed that as to defendant Locke, said judgment is affirmed with costs.

Concurring Opinion.

Marr, J.

The defendant waived his right to a trial by jury by his failure to demand it before the jury had been discharged.

The right to trial by jury is not dependent upon the discretion of the judge; but the law requires that it shall be specially prayed for, and that the jury fee be paid. When the jury fee is not paid at the time the prayer for jury trial is filed, the court, of course, will disregard it, and proceed without jury if the fee be not paid before the case is fixed for trial, or, where there is no special fixing, before it is reached in due course. If before the fee is paid, the jury be discharged, the granting of a trial by jury would simply operate a continuance for the term 'merely because of the laches of the party appealing for it, and his failure to comply with the requirement of the law.

Ordinarily, when the prayer for trial by jury is filed, and the jury fee is paid, it is the business of the clerk to mark it on the docket as a ease to be tried by jury. But in this case, the application for trial by jury had been passed upon by the court, and overruled. Right or wrong, this ruling was obligatory on the clerk; and he could not, while that order remained unrevoked, disregard it, and treat the case as one to be tried by jury.

At the ensuing term there was no application for trial by jury before the court. It was the business of defendant, if he still desired to avail himself of the right to trial by jury, to have renewed his application. The right was perfect; and if the application had been made before the jury was discharged, it could not, legally, have been refused by the court, as the jury fee had already been deposited with the clerk. The defendant did not do this. He waited until after the jury had been discharged, and it was no longer possible for him to have a trial by jury at that term, without putting the parish to the expense of a new jury, called for that case alone. The application, therefore, came too late; and the court did not err in trying the case without jury.

I concur in the conclusions and decree of the court.


author: Mark, J.

text:
    No. 901.
    Renshaw, Cammack & Co. vs. Imboden et al.
    Records of other suits, made part of, and filed with the petition of appeal, are not part of the evidence, and will not be considered on appeal.
    Property sold for taxes must have been previously advertised three times within ten days in the official journal, or where such publications cannot be made, public notice for ten days must have been given of the sale. A sale made before the lapse of ten clear days from the first notice, or publication, is fatally defective.
    The tax sale of property to the highest bidder for a price less than the amount of the aocrued State taxes, with the penalties, costs, charges, and expenses Included, is an absolute nullity; and a transfer under such sale maybe disregarded by any creditor of-the owner of the property.
    APPEAL from the Fourteenth Judicial District Court, parish of Rich-land. Parsons, J.
    IF. W. Farmer and Cobb & Gunby for defendant and appellant.

      Wells & Williams for plaintiffs and appellees.
   The opinion of the court was delivered by

Mark, J.

Under an execution on a judgment in favor of Imboden, against Mrs. Amanda L. Miller, the sheriff seized and was about to sell certain real property in Richland parish. Renshaw, Cammack & Co., claiming to be the owners of the property, under a conveyance from Montgomery, who purchased at a tax collector’s sale, brought this suit to enjoin further proceedings by the sheriff.

Judgment was taken by default, and confirmed, declaring Renshaw, Cammack & Co. to be the true and legal owners of the property: and perpetuating the injunction. Imboden 'appealed.

The proof of title on which the default was confirmed consisted of the tax collector’s deed, and the Auditor’s confirmative deed, to Montgomery; and the conveyance by Montgomery to Renshaw, Cammack & Co. Part of the property described in these conveyances, the west half of the southwest quarter of section six, is not the north half of the same quarter, seized by the sheriff under Imboden’s suit; but there are two fatal defects, disclosed in the tax collector’s deed, which make it unnecessary for us to pass upon the other matters set up by appellant. We deem it proper to say, however, that the records and proceedings in two other suits, made part of and filed with the petition of appeal, are no part of the evidence in the cause; and they cannot be considered for any purpose on this appeal.

The collector states, in his deed, that he proceeded under Act No. 47, of 1873: that he made the necessary publications in the Richland Beacon cn the 29th November, and sold the property on the 9th December: that the seizure was made for the payment of taxes due by B. R. Miller, for the years 1873,1874, 1875, amounting, with penalties, costs and charges, to $97 86; and that he adjudicated the property to Montgomery, the last and highest bidder, for the sum and price of $36 35.

First. Section one of the act 47, of 1873, requires the tax collectors to sell “ after advertising three times, within ten days, in the official journal, and in the country parishes where such publications cannot be made by public notice for such ten days." We interpret this to mean that whether the notice be by publication, or by posting, there must be ten clear days between the first appearance of the notice and the sale; and, as the deed makes no reference to any other publication than that made in the Beacon on the 29th November, the sale could not have been lawfully made before the 10th of December.

Second. Section nine of the act provides that if the highest bid for the property offered for sale, for non-payment of the taxes, should be insufficient to pay the taxes proceeded for, and the penalties, and costs, charges and expenses, such bid shall be rejected. In such case, the collector may bid in the property for the State; but he cannot adjudicate it to a bidder for anything less than the amount due the State for taxes, with the penalties, and the costs, charges and expenses. The deed shows that the price of the adjudication to Montgomery was less than half the amount required. The sale was an absolute nullity; and Montgomery acquired no title, and could not convey title to his vendees. Renshaw, Cammack & Co.

We are not to be understood as questioning the correctness of our decisions in Lannes vs. Workingmen’s Bank, 29 An. 112, and Jurey & Gillis vs. Allison, 30 An. 1234. In Lannes’ case, the bank, a mortgage creditor of Blaize Lannes, seized the mortgaged property under executory process. Pierre Lannes enjoined, alleging that he was the owner of the property, under the deeds of the tax collector and the Auditor. The bank answered that the collector had no authority to give the title; that the property when sold did not belong to the person in whoso name it was assessed; and that the collector’s deed was, therefore, void, There was no apparent nullity or defect in the deed itself; and we held that the mortgage creditor could not ignore the apparently valid tax title, and seize the property as if no such title existed; and that he must proceed by direct revocatory action.

In the case of Jurey & Gillis, a judgment creditor seized the land under execution; and Jurey & Gillis enjoined, claiming title under the deeds of the tax collector and the Auditor. The seizing creditor relied upon causes of nullity not apparent in the deeds, irregularities on the part of the officer making the sale. We held that, as the constitution, art. 118, makes the tax collector’s deed prima facie evidence of a valid sale, it must be presumed to be valid until it is annulled in a direct revocatory action.

The present case differs in that the deed itself discloses, on its face, the absolute nullity of the sale. Where the alleged nullity of the tax deed depends upon proof dehors the instrument, it must be received and treated as evidence of a valid sale, until the contrary is shown; but where, as in this case, the deed contains all the evidence of its nullity, it is not necessary to attack it, by suit, or to have the nullity declared judicially.

The judgment appealed from is therefore annulled, avoided and reversed; and it is now ordered, adjudged and decreed that the injunction herein granted be dissolved; that the demand of plaintiffs, Benshaw, Cammaek & Co., be rejected, and their suit and petition be dismissed; and that they pay the costs in this court and in the district court.