author: Nicholls, C. J.

text:
    No. 11,798.
    A. A. Maginnis vs. Union Oil Company.
    Where real estate is sent to sale at public auction under *a written advertisement the intention of the seller as to the object intended tobe sold and of the purchaser as to that intended to he bought is. to be ascertained by the advertisement and not by conversations or letters written between the parties in prior negotiations for a private sale which had failed and been abandoned. The • advertisement binds both parties. ' •
    Where real property is adjudicated at public auction everything which is part thereof as being immovable by destination passes to the purchaser without thenecessity of specific enumeration in the advertisement. This effect ceases, however, when there are words of exclusion or reservation in the advertisement.
    Where the advertisement of real estate for sale at public auction describes the property as to be sold “with tbe buildings and improvements thereon, and all rights, ways, privileges and appurtenances thereto belonging, or.'in any wise appertaining,” the purchaser of the property under the advertisement acquires the ownership of all the movables made immovable by destination forming part of the property at the time of the sale, although in a subsequent portion of the advertisement the property is referred to as “ equipped with water connections with the Mississippi river, together with boilers, filters and pumps, which will be sold with the property, thereby securing free water.” It is the duty of the seller to express himself clearly, and any obscure or ambiguous clause is construed against him. 0.0.2461,2474. 1 .
    A mere intention to dismautle a building in which machinery had become a part and immobilized by destination, remaining unexecuted up to the time that third persons acquired the property in its actual existing condition, produced no effect as against such third person. . • .
    y^ PPEAL from the Oivil District Court for the Parish of Orleans. Bightor J.

      Gilmore & Baldwin for Plaintiff, Appellee:
    The authority to sell real estate and immovables by destination attached thereto can only be established by written evidence. Arts. 2275, 2276 and 2461, Civil Code.
    Machinery set in bricks and mortar, and constituting a cotton-seed oil mill, at the date of the sale of the real estate to which it is attached, is immovable by destination and part of the realty. Theurer vs. Nautre, 23 An. 479; Bochereau vs. Bobb, 27 An. 658; Tison vs.. Sheriff, 28 An. 798; Wiel vs. Lapeyre, 38 An. 303; Insurance Company vs. derson, 28 An. 310.
    Immovables by destination attached to real estate sold at public auction pass by the adjudication to the purchaser, with the real estate to which they are attached, unless they are expressly reserved in the advertisement, which can neither be explained nor extended by parol evidence. Art. 2461, Civil Code; Nott vs. Oakey, 19 L. 18; Nott vs. Bank, lb. 22; Layton vs. Hennen, 3 An. 1; Poree vs. Bonneval, 6 An.- 386; McCarty vs. Canal Co., 8 R. 102; Pew vs. Livaudais, 3 L. 460; Lewis vs. Labauve, 13' An. 382.
    A reservation in a sale of real estate of the immovables attached thereto can not be established by implication. Art. 2474, Civil Code.

      Denegre & Denegre and Harry H. Hall for Defendant and Appellant:
    Where, for the purpose of attempting to prove that the defendant corporation, under such an advertisement, intended, as a matter of fact, to sell the oil machinery, plaintiff, by a subpoena duces tecum, calls for the production of its resolutions and its instructions to its officers and offers them in evidence, and those resolutions and instructions show conclusively, as does the parol testimony offered by plaintiff, that the defendant never intended to sell, and never authorized the sale of said oil machinery, plaintiff is bound by this evidence and can not contradict it.
    The defendant having purchased a building .and real estate formerly used as an oil mill and having absolutely abandoned the operation of said oil mill and used it solely as a warehouse, and having further determined to remove all the oil machinery therefrom, and having actually removed a part of it, and being engaged in removing the remainder of it, when stopped by injunction, such oil machinery, which was originally immovable by destination of the owner, has again, by the intention, as above set out, become movable, and will not pass with the building in the sale thereof.
    Civil Code, Arts. 468 and 469, provides that utensils necessary for the working of cotton mills and other manufactories may be made immovable by destination of the owner, and other such movables as he only has attached permanently to the tenement or building are likewise immovable by destination, permanent attachment meaning the fixing of movables in such way that they can not be taken off without being broken or injured, or without breaking or injuring the part of the building to which they are attached.

      An owner who has the power to make movables immovable by destination has necessarily the right to again make them movables, Laurent, Vol. 5, No. 474.
    Immovability by destination in farm or factory ceases to exist when the agricultural or manufacturing interests involved is no longer the motive — that is, when the operation ceases. If the proprietor of the factory manifests the intention to demolish it, if he discharges his workmen, if there is no longer a manufacturing establishment, immovability ceases. It is always by the will of the owner that immovability ceases. Laurent, Vol. 5, Nos. 476, 478 and 479.
    And this applies to machinery placed in a factory, although fastened to the building and originally made immovable, both by intention and manufacturing destination. Laurent, Vol. 5, Nos. 479, 480 and 481; see also 38 An. 303.

      Thomas J. Semmes joined with Counsel for Defendant in a Brief for Rehearing.
    Argued and submitted May 24, 1895.
    Opinion handed down June 3, 1895.
    Rehearing refused November 18, 1895.
    The plaintiff, alleging that on the 11th of January, 1893, he had purchased at public auction from the defendant company a certain piece or portion of ground known as the Maginnis Oil and Soap Works with all the buildings and improvements thereupon, and all the rights, ways, privileges and appurtenances thereunto belonging, obtained an injunction restraining the defendant from removing or in any manner altering or displacing the machinery which plaintiff claimed was part of the purchase. He alleged that the sale and adjudication of this property to him was made without reservation or exception, by the auctioneer at public auction, and transferred to him as owner in full ownership, from the moment of adjudication, all of the improvements and immovables situated on said real estate, or in any manner thereunto belonging, particularly the machinery in said building placed therein, and become immovable by destination.

      - The property in question was adjudicated to the plaintiff for fifty-five thousand dollars, at public auction on the 11th of January, 1893, under public advertisement, reading as follows:
    “ Attention.
    “ MANUFACTURERS,
    “ WAREHOUSEMEN,
    “ CAPITALISTS.

      “ Grandest Opportunity Ever Offered to Acquire Magnificent Property for Manufacturing, Warehousing and .General Industrial Purposes.
    “ The superb'structures formerly used and known as the Maginnis Oil and Soap Works, in squares Julia, Tchoupitoulas, Commerce and St. Joseph, Julia, Commerce, New Levee and St. Joseph; comprising an enormous frontage of three hundred and seventy-three feet on Julia street, immediately contiguous to the shipping; equipped with water connections with the Mississippi river, together with boilers, filters and pumps, which will be sold with the property.
    “ Sale for Account of the Uniun Oil Company.

      “ Wednesday, January 11, 1893.

      ■ . ‘ ‘ By Robinson & Underwood, auctioneers; office 3 1-2 Carondelet street. On Wednesday, January 11, 1893, at 12 o’clock m., at the Auctioneer’s Exchange, Nos. 72 and 74 St. Charles street, by public auction, will be sold:

      U 1 * * Hi * * *
    ‘í2. A certain piece or portion of ground, together with the buildings and improvements thereon, and all rights, ways, privileges and appurtenances thereunto belonging, or in any wise appertaining, situate, lying and being in the First District of the said city of New Orleans and State of Louisiana, in the square bounded by Tchoupitoulas, Julia, Commerce and St. Joseph streets, and measuring two hundred and thirteen feet five inches and four lines front on Julia street, one hundred and sixty-one feet and nine inches front on Tchoupitoulas street-by two hundred and twenty feet nine inches in width on the side line nearest St. Joseph street.

      “ The improvements in the square Julia, St. Joseph, Tehoupitoulas and Commerce streets comprise a large two-story brick building-fronting on Julia, Tehoupitoulas and Commerce streets, substantially built, and has been used for many years as a manufactory; large wagon passage way leading from Tehoupitoulas to Oommerce street, enabling wagons to load and unload inside the building.

      “ The improvements in the square Julia, St. Joseph, Commerce and New Levee streets, the property advertised under the No. 1, as above given, the special description of which was therein given, but which is omitted here as not bearing upon this controversy, comprise a large two-story brick, building, and has been used jointly with the above (the property secondly described), both of which are peculiarly well adapted for manufacturing purposes, and also suitable for-warehousing. The foundations of both are of. the most substantial character, and the flooring of the finest Schillioger. Equipped with water connections with the Mississippi river, together with boilers, filters and pumps, which will be sold with the property, thereby securing free water.
    Terms — One-third or more cash, balance one, two and three years, with six per cent, per annum interest ,payable annually; insurance, attorney’s fees, and all other usual security clauses. Ten per cent, exacted at moment of adjudication.
    “ Acts of sale at expense of the purchasers before W. Denegre, notary public.”
    The ad j udicatee paid into the hands of the auctioneers the ten peícent. upon the purchase required by the advertisement.
    Defendant pleaded a general denial.
    Judgment was rendered in favor of the plaintiff, recognizing him as the owner of the property in controversy, and making the injunction perpetual. Defendant appealed.
   The opinion of the court was delivered by

Nicholls, C. J.

This ease has, both through the testimony and the argument, taken a much broader scope than we think the legal situation called for.

A large portion of the evidence was directed to the attempted-ascertainment of what the defendant at the sale of the 11th of January, 1893, intended to sell, and what the plaintiff intended to buy, through conversations between the plaintiff and the defendant, at a time prior to the sale, when the former was either at one time, as a broker acting for William Henderson, or on his own behalf at another, seeking to purchase the property from the defendant at private sale. These negotiations failed and were abandoned. The sale of the 11th of January was not a private sale, nor an auction sale made in consummation of any arrangment or understanding between plaintiff and defendant, but an independent, distinct act by which the property was offered for sale to any one who would be the last and highest bidder on the terms and conditions set forth in the advertisement. Plaintiff stands as to his rights and'obligations precisely in che same position which any other purchaser who had no prior dealing with the defendant up to the date of sale would have occupied, purchasing under the same advertisement.

The questions before the court arel (1) Whether the auctioneer was authorized by defendant to sell the property; (2) whether the advertisement of the property for sale as made, is to be taken as the act of the company, and (3) what are the rights and obligations of parties resulting from a sale of the property in its then condition under the said advertisement.

We do not understand defendant to deny that the property was sent to sale by proper authority. The minutes of the finance committee of the defendant company of the 27th of October, 1892, of the 30th of November, 1892, of 24th of December, 1891, the letter of T. R. Chaney, its first vice president, of November 2, 1892, to Mr. Wjnship, and the course pursued by the defendant since the adjudication would establish that fact, if it were controverted. Defendants’ position as we understand it is: (1) That although the auctioneers were authorized to sell the property, they were not authorized to sell it in manner such as would convey to the purchaser title to the machinery in the building, and (2) that a sale under the advertisement as made would not have that effect. The finance committee seems to have delegated to Vice President Chaney the power to instruct that preparations be made for an auction sale,” and that gentleman for that purpose placed himself in communication with Second Vice President Winship. In his letter to the latter of November 2, 1892, referring to the sale, he said: “I have, however, brought it to the attention of the finance committee, and recommend that we take necessary steps to offer this property, as proposed by Robinson & Underwood, at auction, which recommendation they approved, and it will therefore be in order for you to put this in hand. The usual terms of sale down in your section, I believe, are one-third cash, balance in one, two and three years on mortgage. I expect to be in New Orleans before this property will be offered, and will agree with you on limit price.”

The auctioneer, Robinson, says he was called on by Mr. Winship with regard to the sale. “ The instructions he gave me were simply handing me the title. His instructions were simply to advertise the property as designated in the title. As I understand, his instructions were simply to advertise the property belonging to the Union Oil Company, two pieces of realty as designated in the title. His instructions were specifically to sell the property as advertised. I had written out the advertisement, stating that the property was equipped with all modern appurtenances of machinery, but Mr. Winship very emphatically and positively eliminated that part of the advertisement, and stated to me that under no circumstances was there any machinery to be sold. It was not my province to make any further inquiry, as I was simply delegated to make the sale.” Being asked the question: “You were authorized to sell the machinery mentioned in the advertisement,” the boilers, filterers and pumps, “ and no other machinery?” he answered, “No other machinery. ” And being further asked: “And after you had drawn up an advertisement including all the machinery and buildings Mr. Winship objected to it and eliminated it?” he answered: “Yes, I had prepared a very elaborate advertisement, dwelling upon the machinery contained in the building, as I knew it would be a very attractive feature.”

This testimony was admitted over plaintiff’s objections and under a bill of exceptions reserved. We allude to it now only as going to show that the advertisement, as finally made and acted upon, was an advertisement approved of by Mr. Winship and prepared under his eye and direction. There is no doubt that Mr. Winship believed that a sale under this advertisement as made would exclude the machinery in the building from passing with the property as part of it, and that his intention was that it should so announce to bidders. The question, however, is whether, as a matter of law, his belief was well founded and his intentions could save the situation if he were mistaken. The rights of plaintiff and defendant are to be tested by the actual legal consequences flowing from a sale made under the particular advertisement as being the authorized advertisement of the company. These consequences can not be altered or checked because the agent of the company may have had an erroneous belief as to what the advertisement, as written, meant, or- what, it would legally convey. The advertisement controlled the rights and obligations of the parties. Layton vs. Hennen, 3 An. 1; Poree vs. Bonneval, 6 An. 388.

The sale being at auction and offered, to the last and highest bidder without reservation and limit, the adjudicatee through the adjudication, and the deposit made by him, acquired a vested right to the ownership of whatever legally passed under the advertisement. The price offered by the last and highest bidder has no bearing upon the legal question as to what, was offered for sale and what was sold. The determination of that question rests upon matters existing prior to the adjudication.

Looking at the building at the date of the sale, without reference to the advertisement, we are of the opinion that the machinery at that time formed part of the real esoate as immovable by destination. It was placed upon the property by its owner for its service and improvement, and had been so used. C. O. Arts. 468, 469. And, though for special reasons, subsequent owners may have discontinued this use, for a certain time, it has never been dismantled. A mere intention of dismantling, remaining unexecuted up to the time that third persons acquired ownership of the property in its actually existing condition, would produce no effect as against such person.

It did not follow, however, that because the machinery at the time of the adjudication was part of the immovables by destination that it necessarily passed to the adjudicatee, for it was within the power of the seller through his advertisement (if properly worded) to operate its legal severance from the land at the very moment of the sale. This whole case turns upon whether such severance was operated either expressly or through equivalent implication. This is really the point upon which the parties are at issue. Plaintiff points us to that portion of the advertisement wherein the object offered for sale is declared to be a certain piece or portion of land. together with the buildings and improvements thereon, and all rights, ways, privileges and appurtenances thereunto belonging, or in any wise appertaining. He claims that even without these words the machinery (if it was in reality part of the immovable property) would have passed by the sale unless there were in the advertisement words of reservation or exclusion, but that with these wards added, the matter is taken beyond debate. Defendant, on the other-hand, insists that the advertisement shows plainly and unmistakably on its face that the machinery was not included; that in describing the property it is referred to as <! equipped with water connections with the Mississippi river, together with boilers, filters and pumps, which will be sold with the property, thereby securing free water;” that this special enumeration of particular portions of the machinery clearly excludes the idea that any other objects besides.those particularly mentioned were to be disposed of with the land, and that this same fact is specially drawn to the attention of bidders through the auctioneers’ headlines to the advertisement.

The plaintiff replies that the mention of these special articles was simply the selection by the auctioneer of some of the salient advantages of the property in order to attract special attention, as is eus- • tomary in all auction sales, nothing more; that the machinery would hive passed without any allusion to “improvements” and “appurtenances ” as a matter of course, but that particular mention of the “improvements” and “appurtenances” as forming part of the object to be sold withdraws from the consideration of the case ' all mere inferences and conjectures; that if it had been the intention' of the vendor to have excluded the machinery from the sale it was his duty to have done so in clear and exact terms, and everything obscure or ambiguous is to be construed against him. C. C. Arts. 2474, 2461.

Holding as we do that the machinery was, at the date of the sale, immovable by destination, we think in the absence of words of reservation and exclusion in the advertisement, it passed to the purchaser of the real estate, as part thereof, and that the judgment of the District Court to that effect was correct. Williamson vs. Richardson, Sheriff, 31 An. 686; Hollingsworth vs. Chaffe, 33 An. 554.

The judgment appealed from is hereby affirmed.


source: Caselaw Access Project

author: Watkins, J. McEnery and Breaux J. J.,

license: Public Domain

text:
    No. 11,659.
    The State ex rel. Mechanics and Traders Insurance Co. vs. The Board of Assessors et al.
    The uncollected premiums of an insurance company are not exempt from taxation as income.
    The shares of the capital stools: of a manufacturing corporation, when held and owned by an insurance company, are taxable as being part o£ its assets, notwithstanding the capital, machinery and other property of said manufacturing corporation are exempt from taxation by constitutional provision.
    APPEAL from the Civil District Court for the Parish of Orleans. Theard, J.

      J. Q. Flynn and 'William B. Lancaster for Plaintiff, Appellant.

      E. A. O’Sullivan, City Attorney, and Henry Benshaw, Assistant City Attorney, for Defendants, Appellees.
    Argued and submitted February 13, 1895.
    On first hearing the judgment of the District Court, which was for the defendants, was set aside.
    On application for a rehearing the final opinion was handed down June 17, 1895.
    Rehearing refused November 18, 1895.
   The opinion of the court was delivered by

Watkins, J.

This is a proceeding of mandamus to compel the cancellation of relator’s assessment for the year 1894.

It is as follows, viz.:

Money at interest ..................................................................................$111,783

Money in possession..................................................................................... 13,091

All other articles............................................................................................. 42,200

Total....................................................-....................................................$172,074

The grounds of relator’s complaint are, first, that under the heading of “ money at interest ” there is included “ income,” which, under the law, it is alleged, is not taxable; second, that under the item all other articles,” there are included shares of stock in the Nacional Acid Company and the Standard Guano and Chemical Company, said corporations being manufacturers, whose property and shares of stock are exempt from taxation under Art. 207 of the Constitution.

The answer of respondents is that the assessment is correct and the taxes thereon based are lawful and due.

The testimony shows on the first proposition that the item “money at interest” includes the net value of uncollected premiums due relator from its customers; that is to say, the total amount, less fifteen per cent; and, on the second proposition, it is that the item “ all other articles” includes two hundred shares of the capital stock of the Standard Guano and Chemical Company, a manufacturing corporation within the’ meaning of Art. 207 of the Constitution.

On this statement the court a qua pronounced judgment in favor of the respondents and the relators have appealed.

In this court the argument of respondent is that a tax on uncollected premiums of an insurance company is not a tax on income; that they may be a source of revenue, but they are not income, and that the assessment of them as property of the corporation is legal and valid. That the shares of an exempt corporation are taxable in the hands of any third person as the representative of the value of its shares of stock, and that the Legislature had not the power, by any mere omission, to extend an exemption so as to include assets of a corporation which have a pecuniary value which is assessable under the terms of the Constitution.

On the other hand, the contention of relator’s counsel is that its. uncollected premiums are not “ credits ” in the sense of the revenue-law of 1890 under which the assessment in question was made; that “ the shares of manufacturing corporations simply represent the capital of such corporations, and as such are exempt under Art. 207 of the Constitution,” and that “ there is no authority in the Act of 1890 to assess the shares of corporations other than that mentioned in Sec. 27, the capital and not the shares being assessable.”

I.

Taking the second proposition first, we have for consideration the questions, (1) whether the shares of the capital stock of a manufacturing corporation, the property of which is exempt from taxation pnder the provisions of Art. 207 of the Constitution, are assessable in the possession and ownership of another corporation whose prop -' erty is not exempt from taxation; (2) whether there is any authority under the revenue law of 1890 for the assessment of the shares of the capital stock of an insurance corporation such as the relator is, as property.

It will be observed at a glance that the assessment made against, the relator does not, prima facie, deal with either question which is propounded; but they are necessarily predicated upon the relator’s allegations and proof at the trial.

The assessment was made of “money at interest,” “money in-possession,” and “all other articles” — no mention being made of ■either the relator’s capital, or shares of its own stock, or the stock of any other corporation whatsoever.

Reference to the revenue law will show that it declares that there “ shall be levied annual taxes amounting in the aggregate to six mills-on the dollar of the assessed valuation of all property situated within the State of Louisiana, except such as is expressly exempted from taxation by law,” etc.

That it further declares that “the term ‘property,’ as herein used, means and includes * * * all movable property and chattels; all personal property; all goods, wares, merchandise and other stock in trade, in possession, on hand, and under control; * * * the cash value of all judgments, suits and causes of action; all rights, credits, bonds and securities af all kinds; promissory notes, open accounts, and other obligations; all cash," etc. (Our italics.)

And it further declares that “ all coins, United States and foreign, whether current, or uncurrent; all currencies, bank notes and other proper moneys; all moneys loaned at interest; all shares of stock in all banking companies, or associations, incorporated or non-incorporated * *• * ail other articles or things whatever possessing any money value.”

Then follows this sweeping provision, as if to make assurance doubly sure, viz.:

“ This enumeration shall not be so construed as to exempt from taxation any property or values not enumerated herein,” etc.

But that is not all, for it provides further, viz.:

“The above enumeration of assessable property is in no way intended to apply to the assets of banking companies, or associations whose shares of stock are assessable in lieu thereof under Sec.1 27, save in so far as is declared in said Sec. 27:” Sec. 1 of Act-106 of 1890.

From the foregoing it is quite plain that whatever course may-have been antecedently pursued by the General Assembly with reference to the assessment of the shares of stock of insurance companies and corporations, it was changed by the revenue law of 1890, so as to make all of their properties assessable without reference to their shares of capital stock.

The only exception to that rule is found in See, 27 of the act, and it runs as follows viz.:

“ That no assessment shall hereafter be made under that name, as capital stock of any National bank, State bank, banking company, banking firms, or banking associations, whose capital stock is represented by shares, but the shares shall be assessed at the actual value, as shown by the books of the bank, or banks, to the shareholders, who appear upon the books, regardless of any transfer not registered or entered upon the books * * * and all taxes so assessed shall be paid by the bank, company, firm or association, which shalj be entitled to collect said amounts from the shareholders, or their transferees,” etc.

“ It further provides that all real estate owned by the bank, company, firm, etc., * * * shall be assessed directly to the bank, company, firm * * * and the pro rata of such direct property tax, proportioned to each share of the capital stock, shall be deducted from the- amount of taxes assessed to the share under this section,” etc. Ibid., See. 27.

It will be readily perceived that the section provides a mode for the assessment of the shares of stock, and the real estate of banking institutions, generally, that is at once exceptional and different from all other assessments; and different, in some particulars, from any prior revenue law in reference to books, etc.

For Sec. 28 of Ant 98 of. 1886. which was under consideration and interpreted by this court, in Bank of Shreveport vs. Board of Assessors, 41 An. 181, provided that all yroyerty owned by the bank, company, firm, association or corporation, which is taxable under Sec. 1 of this act, shall be assessed directly to the bank, company, firm, association or corporation, and the pro rata of such direct property taxes, and nf all exempt property, proportionate to each share of capital stock, shall be deducted from the amount of taxes assessed to that share under this section.”

Consequently, the question of difficulty in that case was for the court to determine “the precise meaning of the language (of the statute) which required the deduction of all exempt property.1'1

Under the provisions of Sec. 27 of Act 106 of 1890 no such difficulty can arise, even with regard to the assessment of banks, because it distinctly provides “ that all real estate owned by the bank * * * shall be directly assessed to the bank;” and it further provides that the “ pro rata of such direct property tax, proportioned to each share of the capital stock, shall be deducted from the amount of taxes assessed to the share,” etc.

But with regard to other companies, corporations or associations, whose capital stock is represented by shares, there is no difficulty whatever, because there is no provision of the revenue law of 1896 which directs or requires an assessment of its shares, and consequently no question can arise with regard to any deduction at all. Yet it by no means follows that the shares are exempt from taxation by legislative intendment, or in effect.

That question is covered by the provisions of the next succeeding section thus:

“ That all other corporations, save those enumerated in Sec. 27 o this act, shall be assessed directly upon all property owned by the corporations which is taxable under Sec. 1 of this act,” etc. Ibid Sec. 28.

This is perfectly conclusive and requires no interpretation. All the property of any corporation other than a banking institution must be assessed on all taxable values of any and every kind; that is to say, on everything which gives value to its shares of stock, but not upon the shares of stock.

Does this method of assessment include shares of stock in other corporations which are exempt from taxation by the terms of the Constitution?

In Bank of Shreveport vs. Board of Assessors, supra, it was “ conceded that shares in banks, whether State or national, are liable to taxation by the State, although the capital of the bank may be entirely invested in United States bonds,” and that concession was made in view of the jurisprudence which is established in Van Allen vs. Assessors, 3 Wallace, 573; People vs. Commissioners, 4 Wallace, 244, and Bank vs. Commonwealth, 9 Wallace, 353; vide U. S. Revised Stats., Sec. 219. But the plaintiff in that case sought to reduce the assessment on its shares by deducting therefrom the value of non-taxable securities in its vaults upon which its business operations were predicated. This, our decision held, could not be done under the terms of the Constitution." But since that decision was rendered, as has already been shown, the Legislature has so altered the revenue law as to remit from assessment both the shares and capital of all other corporations and associations than banks, as such, and in lieu thereof directs and requires an assessment to be made of all their property, of any and every kind, which gives value to their shares or capital.

And in this regard the revenue law of 1890 makes another very important addition, viz.':

“But unless three months prior and continuous ownership can be shown in any holdings of national, State, or municipal bonds, or stock in any other corporation whatsoever, then the market value of such holdings shall be assessed to such corporation as so much money in possession.”

That was exactly the course pursued by the respondents in this instance.

But the converse of that proposition must be true, that if three months’ prior and continuous ownership of bank or other stock is shown, the holder is entitled to have same specially assessed.

Not only is that so, but the statute makes another important distinction, and that is, that the stock of even a banking corporation which is held by an insurance corporation is assessable to the latter as money in possession; or in other words, the stock of one company or corporation loses its identity by being carried into another corporation, and becomes subject to taxatiouas “ money in possession,” notwithstanding same may be non-taxable as a share of the stock of the corporation by which it was issued.

This principle has been frequently affirmed by this court.

In City vs. Canal Bank, 29 An. 851, it was held that the bank could not escape taxation by merely investing a portion of its assets, equivalent to its surplus, in non-taxable securities; but that such securities “ though themselves non-taxable, shall be counted, as they are used, and were designed to be used as assets of the bank for the purpose of affecting and extinguishing so much of its indebtedness.”

In State ex rel Jacobs vs. Assessors, 37 An. 850, the court approved the ruling in City vs. Canal Bank, and said:

... “Even if private bankers stood upon the same plane as in orporated banks, and were subject to the same rules of assessment as to their capital, and were to be taxed only upon the surplus of their assets over their debts, they could not escape taxation by simply investing a portion of their assets; .equivalent to such surplus, in non-taxable United States bonds; but such bonds, though them•selves non-taxable, would, nevertheless be counted asa part of the assets, and as offsetting, to that extent, the liabilities.”

That the shares of stock of a corporation are property in the sense of revenue laws is the settled interpretation of this court, as attested by its opinion in Schreiber vs. Board of Assessors, 37 An. 908. In that case the' point was made that the plaintiff’s assessment was illegal because it contained one share of the capital stock of the New Orleans Cotton Exchange, which was non-taxable.because there was no provision of the revenue law making' it taxable. But the court said that was incorrect and cited the provisions of the revenue law, the terms of which are almost identical with those of the revenue law of 1890, and said:

• “ But it is manifest that the shares in other companies are equally declared included in the phrases movable or personal property; and even if this were not broad enough, the term property alone is ex-> pressly defined as meaning, inter alias, all shares of stock, and whatever possesses a money value. * * * If these shares of stock be not taxable it would be difficult to find any securities that are. They fall within the definition ,of property as including all shares of stock, and of course within the broader designation of whatever , has a money value.” See-paiticularly City vs. Mechanics and Traders Insurance Company, 30 An. 876.

In Parker, Tax Collector, vs. The Sun Insurance Company, 42 An. 1172, it was claimed by the defendant that certain property, viz.: certain State and city bonds, should be deducted from its assessment —the contention being precisely the same as relator’s is here — as exempt property. Of this claim the court say:

‘•‘•And the averment is made that the exempt property is worth more than the company’s shares of stock, and that a proper deduction thereof from the assessment would reduce it to nothing, and annihilate it completely.”

On fully considering the question, the court held:

“The failure of the assessor to deduct from an assessment against the ■ shares of stockholders of an insurance company the value of certain State and city bonds, which are owned by the corporation, and are exempt from State taxation, does not render such assessment void, L ecause they are not exempt property in the sense of the statute and the State Constitution.”

That decision quoted and approved Bank of Shreveport vs. Board of Reviewers, 41 An. 181.

The case was preceded by Home Insurance Company vs. Board of Assessors, 42 An. 1131, in which the effort of the plaintiff was to procure the deduction from its assessment of the Orossman bonds of the city of New Orleans as property which was exempt from taxation. The court say:

“The exemption claimed has been twice denied by this court. United States bonds and State bonds in which the capital of a corporation are invested are not deductible from the assessment of the shares. Bank of Shreveport vs. Board of Assessors, 41 An. 185; The Board of Liquidation vs. Thoman, 42 An. 605.”

It seems difficult to understand how a proposition that has been made so plain by repeated adjudications of this court could be misunderstood.

For the purpose of assessment a distinction has been frequently taken between the capital of a corporation and shares of stock belonging to its stockholders.- This distinction is fully illustrated in the opinion of' this court in Citizens Bank vs. Bouny, 32 An. 239, in which it was held that “ numerous decisions of the highest authority maintain that the exemption of the capital of a bank does not impair the. right of the State to tax the shares in the hands of the stockholders, and without so deciding absolutely we shall assume, for the purposes of this case, that the charter exemption of the capilal of the bank does not extend to the shares in the hands of the stockholders.” Citing numerous authorities.

A like principle governs our decision in City vs. Canal Bank, 32 An. 157.

And in Van Allen vs. The Assessors, 3 Wallace, 583, the Supreme Court said:

“ But in addition to this view, the tax on the shares is not a tax on the capital of the bank. The corporation is the legal owner of all the property of the bank, real and personal, and within the powers conferred upon it by the charter, and for the purposes for which it was created, can deal with the corporate property as absolutely as a private individual can deal with his own. * * * The interest of the shareholder, entitles him to participate in the net profits earned by the bank in the employment of its capital, during the existence of its charter, in proportion to the number of his shares, and upon its dissolution or termination, to his proportion of the property that may remain of the corporation after the payment of its debts. This is a distinct, independent interest or property held by the shareholder like any other property that may belong to him.” People vs. Commissioners, 4 Wall. 258; Bank vs. Commonwealth, 9 Wall. 358; Citizens Bank vs. Bouny, 32 An. 239; Bank of Shreveport vs. Board of Assessors, 41 An. 181; Parker, Tax Collector, vs. Sun Ins. Co., 42 An. 1179.

But this proposition has been nowhere more clearly or more forcibly stated than it was in Home Insurance Company vs. Board of Assessors, 42 An. 1131.

In discussing and applying the principle announced in Bank of Shreveport vs. Board, 41 An. 185, the court said: The bonds in the quoted cases were United States and State bonds. In the case under consideration they are New Orleans city bonds. The latter are not more exempt than the former. They are all exempt from taxation, and the assessing officer can not directly list and assess them for the purpose, hut they can not, because of their exemption, he deducted from the total of the shares of the shareholders.

“ These bonds are more particularly the property of the corporation ; and the share of a stockholder can not always be assimilated to the capital stock of the corporation. They are carried to a separate account, subject to different rules, and are not always similar. They are the individual interest of the stockholder; an interest which accompanies the person of the owner, giving him the right to a proportional part of the dividends when declared, and to a proportional part of the effects of the corporation when dissolved.

The capital stock is more especially the property of the corporation.”

The object of the Legislature is manifest.

It was intended to prevent a double exemption. Otherwise a manufacturing corporation enjoying (he exemption of its capital from taxation under the provisions of Art. 207 of the Constitution could sell its shares of stock to an insurance company and procure the means of operating its business; and the insurance company could invest the earnings of its business exclusively in such stock, and have it exempted from taxation also.

By this means both businesses would be shielded from taxation, while only one is exempted.

The words in which the constitutional exemption is couched are these, viz.:

“There shall also be exempt from taxation and license * * * the capital, machinery and other property employed in the manufacture,” etc.

They do not necessarily carry the significance of exempting the shares of stock of any corporation; nor do they refer to any corporation as exempt.

The legality of former legislation recognizing a distinction between capital and shares of stock was maintained, and the language of the Constitution must be so construed. .It does not say “there shall be exempt from taxation the capital, machinery or other property of a corporation employed in the manufacture of textile fabrics; ” and by the creation of a manufacturing corporation for such purpose, a new and additional exemption of its shares of stock can not be created.

It is evident that the money which is invested in the shares of the stock of a manufacturing corporation constitutes the capital which is exempt from taxation; but those shares in the vaults of an insurance company, such as the relator, are quite as liable to taxation as non-taxable government bonds and other non-taxable securities are. Even more so; because it is, at least, questionable whether the shares of stock in a manufacturing corporation are non-taxable.

It seems clear that it was the intention of the Legislature — clearly expressed in the revenue law of 1890 — to reach and make liable to taxation this fruitful source of revenue; for in the very nature of things a corporation is not the possessor or owner of its own shares of stock. The very object of issuing stock is to obtain the money of others, who take and hold same in expectation of earning dividends arising from the successful operation of the enterprise.

Desirous of fostering manufacturing industries within the borders of the State, the Constitutional Convention proposed, and the people ratified, the exemption from taxation, for a specified period, of “ the capital, machinery and other property employed in the manufacture of textile fabrics, etc.; ” but that exemption lias ever been strictly-construed, and must not be extended to other subjects of taxation which are not clearly contemplated by it.

On this branch of the subject the judgment is undoubtedly correct.

II.

Are the uncollected premiums of an insurance company exempt from taxation as “income,” or liable to taxation as “credits” in the sense of the revenue law?

The provisions of Art. 207 of the Constitution will be examined in vain for an exemption of “income” from taxation, and the plain meaning of the term “credits” employed in the revenue law includes the uncollected premiums of an insurance company. Its language is general — all rights, credits and open accounts and other obligations.

They are broad enough to cover the uncollected premium of the relator.

We are of opinion that it was decided, if not by direct adjudication, at least by fair implication, that premiums in course of collection are taxable. Vide Liverpool and London and Globe Insurance Co. vs. Board of Assessors, 44 An. 760, and Railey vs. Board of Assessors, 44 An. 770.

These uncollected premiums are mere debts in the course of collection. They are assets which have not yet materialized into cash, not yet realized. This identical question was decided by the Supreme Court of Illinois in The Republic Life Insurance Co. vs. Pollok, 75 Illinois, 300, in which the court expresses itself thus:

“ It also fails to appear what amount constitutes the reassurance reserve. But it is said that the rea'ssuranee reserve and the premiums being collected are not subject to taxation. We fail to perceive why they are not, as they are funds and claims that would be, in the hands of a natural person. A merchant or other business man is taxed on the funds he has on hand, as well as on all debts owing him that are collectible or so regarded, and no reason is perceived why a corporation should not be required to contribute in the same way to the support of the government.”

In City of New Orleans vs. Fourchy, 30 An. 911, a question was raised as to the constitutionality of an income tax which was assessed under the Constitution of 1868, and the court said:

“ As there is no proof on the subject, and as the general rule is that incomes are taxable, we must hold that the defendant falls within the rule, and not within the exception.”

And in Forman vs. The Board of Assessors, 35 An. 825, a similar question was presented, and the court held:

“ We have no occasion to determine whether, under the Constitution of 1879, the Legislature has the power to levy an income tax. That question will be determined when presented in such manner as to render ils decision necessary.”

In Parker, Tax Collector vs. North British and American Ins. Co., 42 An. 428, the court simply say: “It is not necessary for us to decide whether or not, under the Constitution, the Legislature had the power to levy an income tax. It suffices to say, that if the Legislature had such power, it would be an indisputable condition of its exercise that the tax should embrace the incomes of all alike,” etc.

Outside of the foregoing decisions we are aware of no adjudications upon the question; and, in the absence of express constitutional exemption, positive precept of the Legislature, and judicial interpretation, we feel bound to deny exemption from taxation to the relator’s uncollected premiums.

It is therefore our deliberate conviction that our former opinion and decree were erroneous, and must be set aside and annulled.

It is therefore ordered, adjudged and decreed that our former judgment be annulled and set aside; and it is further ordered and decreed that the judgment appealed from be affirmed.

I concur in the decree.

Francis T. Nicholls, Chief Justice.

I concur in the decree.

Henry C. Miller.

McEnery and Breaux J. J.,

Dissenting.

Under the Revenue Act the company is taxed on all the property it owns, including real estate, personal property, rights, credits and cash. The question is whether bonds or shares shall be taxed, although exempt from taxation under, the law, and whether these bonds and shares (exempt from taxation when owned by individuals or partnership) shall be taxed when owned by corporations.

Bonds and shares (exempt from taxation) are exempt wherever they may be found, when-it is attempted to directly tax them.

In several decisions of this court heretofore the question in matter of taxing shares of the corporation by which they had been issued was considered.

In the Shreveport Bank case, 41 An., a leading case upon the subject, treating the shares as taxable under the express provision of the law, the court decided that in establishing their value the United States bond held by the bank was not deductible.

In Home Insurance Company vs. Board of Assessors, 42 An. 1131, 1134, it was held that the principle announced in the Shreveport Bank case applied to the plaintiff insurance company and to the shares of the shareholders. This was under Act 85 of 1888. Under that act shares of insurance companies were taxable. They are not taxabla-under the more recent statute of 18811.

Under the former statute no assessment was made of the capital stock of any national bank, State bank, banking company, banking firm, or banking association, or of any corporation, company, firm or association, whose capital stock is represented by shares, but the actual shares shall be assessed to the shareholders, who appear as such on the books, regardless of any transfer, not registered or entered upon the books, and it shall be the duty of the president or other officer to furnish to the assessor a complete list of those who are borne upon the books as shareholders, and all taxes so assessed shall be paid by the bank, company, firm, association or corporation, which shall be entitled to collect the amount from the shareholders or their transferees.” Section 27 of Act 85 of 1888.

This section further reads substantially, when property shall be assessed directly to the bank, company, firm, association or corporation, all exempt property shall be deducted from the amount of taxes assessed.

If that law were not repealed by the statute of 1890, as the purpose now is to tax the property of the company direct, and not the shares of its shareholders, the exempt property should be deducted.

But we take up the Revenue Act of 1890, the act now in force, and immediately a substantial change is manifest.

Section 27 of that act provides that “no assessment shall hereafter be made under that name, as the capital stock of any national bank, State bank, banking company, banking firm or banking association, whose capital stock is represented by shares, but the shares shall be assessed at their actual value as shown by the books of the bank, or banks, to the shareholders who appear as such upon the books regardless of any transfer.

The last statute is the law upon the subject in question. It completely repeals, to that extent, the Revenue Act of 1888, as is made evident by the following.

Section 1 of Revenue Act of 1890:

“ That Act No. 85 of 1888 be amended by striking out its title by inserting in lieu thereof the above title, by striking out Secs. 1 to 33 inclusive.”

This certainly strikes out Sec. 27 of the Revenue Act of 1888, under which the taxes were imposed, that were declared legal in Home Insurance Company vs. Board of Assessors, 42 An. 1131, 1134.

That section having beyond question been repealed, decisions under the repealed law can not, in the nature of things, be conclusive in interpreting the existing repealing sections. If sections of the revenue statute had not been repealed by the subsequent Act of 1890 the prior decisions would still apply.

In the face of the section which reads “that all corporations, save those enumerated in Sec. 27 of this act, shall be assessed directly upon all property owned by such corporations,” we do not think that the shares issued by these corporations are taxable if the property of the corporations is already taxed as the section requires.

The authority to tax shares other than bank shares was withdrawn by the last revenue act, and that act expressly declares “that all other corporations save those enumerated in Sec. 27 (i. e.,- the bank corporations) shall be assessed directly upon all property owned by such corporations,” thereby substituting property as taxable to shares.

If there was not an express repeal, the parts of the former law left out are repealed. Sutherland on Statutory Construction, par. 137.

We, therefore, dissent.

It was held in several decisions under the Revenue Act of 1888, that the shares of a corporation are an indedendent and distinct element of value, in the matter of taxation, from which the value of the property belonging to the corporation, exempt under the law, is not to be deducted.

W e have no dissent to express from those decisions.

We dissent from a decision interpreting the Revenue Act of 1890, as having reference to property as understood ia matter of taxation, and not from decisions interpreting the Revenue Act of 1888, having reference to shares.


author: Watkins, J.

text:
    No. 11,883.
    State of Louisiana ex rel. G. T. McCune, Testamentary Executor, vs. Fred. D. King, Judge of Division B, of the Civil District Court.
    The respondent Judge having, in an ex parte order, annulled an inventory, because the officiating notary had failed to give notice to a presumptive minor heir to be present at the time and place of taking same, assigns as his reason for áo doing that the minor was without a tutor, and he deemed it necessary for the protection of her rights: Held, there was no such excess of power or grave irregularity exhibited as would justify relief by certiorari.

    y^PPLICATION for Writ of Certiorari.

      W. B. Lancaster for Relator.
    Submitted on briefs November 4, 1895.
    Opinion handed down November 18, 1895.
    On Application for a Writ of Certiorari.
   The opinion of the court was delivered by

Watkins, J.

'This is an application for a writ of certiorari for the purpose of testing the legality of the respondent’s order, annulling and setting aside an inventory taken in the succession of Mrs. Sophia A. Knapp.

Relator avers that he was duly qualified as the testamentary executor of the will of Mrs. Sophia A. Knapp; and, having caused her will to be probated and procured letters testamentary, he caused an inventory to be made of the property of the testatrix, filed it in court, and petitioned for its homologation, and for the sale of movables sufficient to pay privileged debts. That three days afterward the respondenc entered upon the petition which accompanied the inventory, the following ex parte order, viz.:

“ In this case the presumptive .heir, here present and in the.city to the knowledge of the executor, his counsel and the court, not having been notified of the taking of the inventory herein as prescribed by law, the inventory taken on the 18th of July, 1895, is annulled and set aside; and it is now ordered that another inventory be taken in accordance with law,” etc.

His averment is, that in rendering said order the respondent exceeded his powers and acted with grave irregularity, to the great injury and- detriment of the succession. That the only heir of the decedent who is in the State is a minor of about the age of fourteen years, whose mother is living, but to whom no tutor or tutrix has been appointed, and that, on that account, she is incapable of receiving notice of the taking of an. inventory, and the law does not require the notary to do a vain thing. That, in any event, the presence of an heir at the taking of an inventory is not vital to the validity of the inventory, it being merely permissible for heirs to attend, and that the law does not denounce the act as null on that account.

Respondent returns, substantially, that his order was legal and that same was done in the interest of a minor heir who had no tutor and is under the protection of the court, especially when by the terms of the will, as in this case, the testamentary executor is constituted universal legatee to the prejudice of, the minor’s legitime.

All the papers in the mortuaria are brought up with the return and fairly exhibit the correctness and accuracy of petition and return. They show that the appraised value of the property only aggregates the sum of six hundred and eighty-four dollars, and this fact suggests the necessity of an economical administration.

While the granting of such an ex-parte order as the one complained of is somewhat unusual, and it may be of doubtful validity, yet, in our opinion, the rights and interests of all parties will be better conserved by the maintenance of the status quo than by the revocation and annulment of same.

The respondent acted in the interest of the minor heir, who was unrepresented, and for whom he stood in the relation of her next best friend; and we should feel very loath to change it if we could. Certain it is that it presents no appearance of the excess of power and grave irregularity of which the relator complains; consequently his application must be rejected. • ■

It is therefore ordered and decreed that the demands of the relator be rejected at his cost.


author: McEnery, J.

text:
    No. 11,908.
    State of Louisiana vs. J. M. Moss.
    In a capital case where the jury separate, and some are out oí sight and out of hearing of the remainder, unattended by an officer, a verdict of guilty will be set aside and new trial granted.
    APPEAL from the Second Judicial District Court for the Parish of Bossier. Watkins, J.

      M. J. Cunningham, Attorney General, and A. J. Murff, District Attorney, for Plaintiff, Appellee.

      J. A. Snider, J. A. W. Lowry and Joannes Smith for Defendant and Appellee.
    Argued and submitted November 9, 1895.
    Opinion handed down November 18, 1895.
   The opinion of the court was delivered by

McEnery, J.

The defendant was indicted and tried for murder and convicted for manslaughter. He was sentenced to imprisonment at hard labor for five years.

His defence is that there was during the trial, a separation of the jury.

The deputy sheriff who had charge of the jury, in his testimony, on a motion for a new trial, says:

When we would take them to the rear in the daytime, some of them would be contrary and fool around. We would carry them to the privy that belonged to the court house, which was a privy in general use by anybody that wished to use it. The privy is about fifty yards from the court house and has several apartments in it, and is of wooden structure. The different sections are separated by a plank partition, and the front is surrounded by a high plank wall. When one, two or three wished to go, they would go on the outside, and the balance would stop on the outside of the wall in the shade of a wood pile, and those on the inside would be out of my view, and the view of those on the outside. * * * *

“ There was a separation of the jury on Saturday morning between 3 and 4 o’clock. At this time I was called by some of the jurors, stating that some of them had to retire, and upon their insisting on retiring, I took two of them out, locking the door upon those that remained in the court room. I took them down stairs, and they went into the yard, and I sat in the hall door of the court house watching them while they were there. Myself and those two jurors were entirely out of sight and hearing of the remaining ten while they were in the room.

“ At night the jury occupied the large court room. The entrance to the grand jury room is at the head of the grand stairway coming into the large court room. The main entrance at the head of the stairway to the main room could only be fastened from the outside, so that no one could pass through it, but it could be opened from the inside so that those inside could go out.

“The grand jury room on Friday night was occupied by some ladies and children. The deputy sheriff- in charge of the jury says that he does not know whether the husbands of these ladies occupied that room or not, but he saw the husbands here that day. Some jurors occupied the petit jury room that adjoins the grand jury room. One entrance of this petit jury room opened near the back door of the court room.”

The testimony shows that there was at least one well defined separation of the jury, when the two jurors on Saturday morning were taken down to the yard, and the remaining jurors were left, unattended, in a distant part of the court building.

There were opportunities for members of the jury remaining upstairs to communicate with persons in the court building. The jurors were accessible, and misconduct is presumed.

The separation of the jury, as disclosed by the testimony, is fatal to the prosecution. State vs. Warren, 43 An. 828; State vs. Foster, 45 An. 1176.

It is therefore ordered, adjudged and decreed that the verdict and sentence be set aside, avoided and reversed, and it is now ordered that the- case be remanded to be proceeded with according to law.


text:
    No. 11,870.
    State of Louisiana ex rel. J. S. Liggins vs. The Judges of the First Circuit Court of Appeals.
    The Supreme Court is without power, in the exercise of its supervisory jurisdiction, to coerce the Circuit Court of Appeals to reinstate a case it has dismissed for want of appellate jurisdiction, and to try and decide same on its merits.
    ^PPLICATION for a Writ of Mandamus. .

      Kidd & Van Hook for Relator.
    Submitted on briefs June 25, 1895.
    Opinion handed down November 18, 1895.
    Petition por a Writ op Mandamus.
   The opinion of the court was delivered by

Watkins, J.

Relator, as defendant in the suit of Hamilton & Brooks vs. J. S. Liggins, on appeal to the court of the respondents, complains that they dismissed his appeal on the ground that their court was without jurisdiction ratione materim; and his prayer is that our writ of mandamus compel respondents to reinstate his appeal, take jurisdiction thereof, and decide it upon its merits and according to law.

In his petition the statement of his claim to relief is that in the plaintiff’s petition in the aforesaid suit it is alleged that in 1882 one Arthur Kelly traded with them to the amount of ninety-seven dollars and seventeen cents and more, and that in the fall of that yeair he (Kelly) paid on the debt two bales of cotton. That relator (Liggins) caused them to lose the debt and damaged them thereby in the sum of one hundred and four dollars, and for that amount they brought suit against the relator, as well as for twenty-five dollars attorney’s fees, and prayed for judgment accordingly.

Relator further shows that on the trial of that cause the plaintiffs tendered evidence in support of their demands, to which he, by counsel, objected, on the ground that the District Court was without jurisdiction ratione materias; and said objection having been overruled and the testimony admitted, he retained a bill of exceptions— relator insisting that the matter in dispute, and therefore the test of jurisdiction, was the difference between the sum of ninety-nine dollars and seventeen cents and the value of the two bales of cotton, an amount less-than fifty dollars, the lower limit of the jurisdiction of the District Court.

That the evidence admitted over- his. objection showed that the original amount of Arthur Kelly’s account with Hamilton & Brooks was one hundred and sixty-eight dollars and seven cents, upon which sixty-eight dollars and ninety-five cents, as the price of the two bales of cotton, was credited, leaving a balance due of ninety-seven dollars and seventeen cents, and for which, with interest added, suit was brought.

That the District Court entertained this theory, and rendered judgment against him for seventy-seven dollars; and from that judgment relator appealed to the respondent’s court, entertaining the belief, as above stated, that the District Court was without jurisdiction, and that the evidence referred to was improperly admitted.

Relator further represents that respondent’s court, in substance, held that the amount in dispute was the difference between the amount ninety-nine dollars and seventeen cents and the value of the two bales of cotton received — sixty-eight dollars and ninety-five cents — which was thirty dollars and twenty-two cents; and that this sum was the true test of the jurisdiction of the District Court, and, necessarily, deprived them of jurisdiction ;■ and they consequently dismissed the appeal, without disposing Of the merits of the case in any way.

The return of the respondents has thereto annexed a copy of their opinion in the aforesaid cause, fully stating their reasons for having dismissed relator’s appeal as aforesaid, and therein is fully set out their grounds for denying relator relief by mandamus.

From the former we make the following extracts, viz.:

“The petition alleges that Arthur A. Kelly, a resident of the parish of Lincoln, purchased from the plaintiffs, during the year 1892, plantation supplies to the amount of ninety-nine dollars and seventeen cents, and that said Kelly paid on the account two bales of cotton. It is clear from these allegations that as between the plaintiffs and their debtor Kelly the amount claimed in the petition is the difference between ninety-nine dollars and seventeen cents, the amount of the account, and the value of the two bales of cotton paid by Kelly on the account.

“ The evidence, to which we were compelled to refer to ascertain the amount of the payment, discloses the fact that the two bales of cotton represented a credit on the account, of sixty dollars and ninety cents. This sum taken from the amount of the account, ninety-nine dollars and seventeen cents, leaves a balance of thirty-eight dollars and twenty-seven cents, as the matter in dispute between the plaintiffs and their debtor, Kelly.

“ The evidence, which we have examined alone upon the question of our own jurisdiction, discloses the further fact that the one hundred and four dollars and twelve cents, which the plaintiffs sued for as damages against the defendant, represent the account ninety-nine dollars and seventeen cents against Kelly, with interest added up to the time when the suit was brought

5*5 ífí ifs #i> ^ 'fc

“The difference between the amount of the account, which constitutes the basis of the suit, and the credit acknowledged in the petition, is the matter in dispute, and, under the law, is the test of jurisdiction.

“ The courts have repeatedly recognized this test, and the question is no longer an open one.”

For these reasons respondent dismissed the relator’s appeal.

A careful scrutiny of the foregoing shows that the respondents, in determining their own jurisdiction, examined only the allegations of the plaintiff’s petition, and that portion of the parol proof which appertained to the value of the two bales of cotton which was attrib - utable to the credit of the defendant, and that in so doing, they accepted relator’s theory, as appellant, and dismissed the appeal for want of appellate jurisdiction, declining to entertain and decide the issue raised as to the original jurisdiction of the District Court vet non.

In their return, the respondents reviewed and analyzed their opinion, and make it even more explicit by the following statement, viz.:

“ The evidence showed that the difference between the ninety-nine dollars and seventeen cents alleged as the original amount of the account in the body of the petition, and the one hundred and four dollars and twelve cents for which the judgment was prayed, was for interest, four dollars and ninety-five cents, computed up to the time the suit was brought, and which was added to the principal of the account, ninety-nine dollars and seventeen cents, in order to make the amount for which judgment was prayed, one hundred and four dollars and twelve cents. So,- the amount in dispute, exclusive of interest, four dollars and ninety-five cents, clearly seems to be the alleged principal of the account due by Liggins to Hamilton & Brooks, to-wit: ninety-nine dollars and seventeen cents, less the proceeds of the two bales of cotton which the petition in that case admits was paid on the account, and which, the evidence shows, amounted to sixty-eight dollars and ninety cents, leaving a balance of principal of the account, of thirty-eight dollars and twenty-seven cents, to which, if the demand for attorney’s fees, twenty-five dollars, should be added, the aggregate is fifty-five dollars and twenty-two cents, which is below the appellate jurisdiction of the Circuit Court.”

Aside from the foregoing statements of the petition of the relator, the return of respondents and the certified copy of the opinion of the Circuit Judges, we have nothing before us from which to obtain any information bearing upon the question at issue; and accepting same, as we must do, as our guide, the necessary result is that we must decline to interfere, as interference would be an invasion of the domain of res judicata.

The respondents were competent, and by the law charged with the duty of ascertaining the jurisdiction of their conrt, ratione materiee, in the premises; and by their judgment as well as by their return they show that they heard the cause on argument, and after its submission examined the record and all the evidence they deemed pertinent to enable them to decide that' question, and, ex proprio motu, dismissed the appeal for want of appellate jurisdiction in the Circuit Court.

This application invites the court to exercise its supervisory jurisdiction over the court of the respondents and command them to reinstate the suit of Hamilton & Brooks vs. J. S. Liggins on their docket, and try and decide same upon its merits, and this evidently we can not do.

The only reason that relator assigns is that in the case of State ex rel. J. S. Liggins vs. Judge Third Judicial District, No. 11,810, decided by this court in May last, 1895, ante., page 1022 — we declined to hold the judgment null, and decide that the respondent’s court was without original jurisdiction, because the principal of the sum demanded was less than fifty dollars, insisting that our judgment is exactly opposite in theory from that of the respondents, and should control. But relator’s error is in confounding the original jurisdiction of the District Court with the appellate jurisdiction of the Circuit Court — two altogether different things.

It is quite true that, in the course of our opinion, we took a different view from that of respondents, and said: “From the record and the respondent’s return it substantially appears that the plaintiff’s allegation to the effect that Kelly had dealt with them to the amount of ninety-nine dollars and seventeen cents and more was, by the relator as defendant, as well as his counsel, taken to be the full amount of Kelly’s original account, which the credit of the proceeds of the two bales of cotton reduced to a sum less than fifty dollars, the lower limit of (he original jurisdiction of the District Court. Constitution, Art. 109.

“ But such is not the case, as, in point of fact, the total amount of Kelly’s account with Hamilton & Brooks was one hundred' and sixty-eight dollars and twelve cents, and when the sum of sixty dollars and ninety cents, the proceeds of the two bales of cotton, were applied thereto as a credit, the net balance of ninety-nine dollars and seventeen cents was produced.”

Immediately afterward occurs this further statement of the opinion, explanatory of the foregoing, viz.:

“lb was proper for the District Judge to hear and consider evidence on the question, and to base his judgment thereon, as evidently he did. For, on the face of the petition, Hamilton & Brooks demanded of the relator, as defendant, a judgment for a sum in excess of one hundred dollars; and relator’s reliance was evidently upon proof to exhibit an inflation of plaintiff’s demands, for the purpose of maintaining the original jurisdiction of the District Court ratione materiee.”

But our opinion was grounded on evidence which was brought up in the transcript of the proceedings in the District Court, and which is as follows, viz. :

“In order to avoid copying evidence adduced in Hamilton & Brooks vs. J. S. Liggins, No. 900, on the docket of the Third District Court, Lincoln parish, and to save costs, the attorneys for the plaintiff, and the defendant judge, in the above suit agree that the evidence in the said suit No. 900 showed the following facts on the question of jurisdiction, viz.:

“ When plaintiffs Hamilton & Brooks began on the trial of suit No. 900 to offer evidence of the debt due, the said firm, by Arthur A. Kelly, counsel for defendant Liggins, interposed the following oojection to the same: (1) That the court is without jurisdiction to try this case; (2) that any evidence to show an indebtedness other than that alleged in plaintiff’s petition [is incompetent] ; and there is no allegation to support proof of any indebtedness other than ninety-nine dollars and seventeen cents, less a credit of two bales of cotton.

“These objections [having been] overruled, and the defendant, Liggins, [having excepted] to the ruling, the evidence showed that A. A. Kelly bought goods of Hamilton & Brooks during the year 1892; and that he sold said firm two bales of cotton in the fall of 1892, and the proceeds of same, amounting to sixty dollars and ninety cents, were credited on account of Kelly, leaving a balance of ninety-nine dollars and seventeen cents. That five per cent, interest on this balance from the time Kelly left until suit No. 900 was filed, made the amount one hundred and four dollars and twelve cents, for which Hamilton & Brooks prayed for judgment in suit No. 900.

“ It is agreed that this be filed as part of the transcript of the proceedings. Signed this 24th of April, 1895.

“Kidd & Vanhook,

“Attorneys for J. 8. Liggins.

Allen Barksdale,

“Judge Third District of Louisiana.”

We have that record before us now and have reproduced the entire agreement for the purpose of demonstrating how completely it supports the statement of our opinion; and upon that evidence we can safely affirm, the correctness of our judgment maintaining the original jurisdiction of the respondent District Judge.

We could not have done otherwise.

In that case, a petition for certiorari, we were not called upon to decide whether the judge was correct in admitting, on the trial in his court, that evidence — a question to be determined by the Circuit Court exercisi/ng appellate jurisdiction — but introduced into the record in this court for our consideration, as it was, it became our duty to consider it.

But neither that decision nor the evidence upon which it was founded has any pertinence to the question before us at this time.

Evidently that testimony was not before the respondents. It was not adverted to in their opinion. The transcript, as it existed in the case referred to, is reproduced here without addition or explanation. Hence it is still our guide, and it fails to show that said evidence was before the respondents when they dismissed the relator’s appeal.

And, in our opinion, we took notice of that fact, and say: “ Possibly (relator) lost his appeal in the Circuit Court, on account of the evidence not having been reduced to writing and incorporated in the record, for the examination of the judges of the Oourt of Appeals.”

But whether it was so incorporated in that record or not, is of no present concern of ours.

The respondents had the record before them; and, after having examined it with care, they reached the deliberate and conscientious conclusion, that their court possessed no appellate jurisdiction in the premises, and dismissed the suit, ex proprio motu.

They declined to examine and decide the case on its merits, and therefore did not review any of the rulings of the District Judge, and his judgment was altogether unaffected by it.

But they did hear and determine the case, and rendered a final judgment in it. They have acted judicially in the matter. The effect of their decree is to leave the judgment of the District Oourt in force; and that of our decree in the certiorari proceedings was to confirm it as a judgment that was jurisdictional.

Even if the evidence we have quoted be conceded to have been before the respondents at the time of their decision, it is wholly out of our power to decide and decree in a mandamus proceeding that their judgment was wrong, and annul it; much less has this court the power, in such a proceeding, to compel them to reinstate the case of Hamilton & Brooks vs. J. S. Liggins, and decide differently from their former decree.

In our view mandamus can not be resorted to for sueh purpose. We have so decided frequently.

In State ex rel. Beaucoudray vs. Judges, 41 An. 1013, this Ooujrt said: “The Judges of the Oourt of Appeals, having exercised a legal discretion, can not be compelled by mandamus to try the case differently from what they have.” State ex rel. Board of Administrators vs. Judge, 39 An. 665; State ex rel. Berthoud vs. Judge, 34 An. 782; State ex rel. Hearsey vs. Judge, 36 An. 981; State ex rel. Cupples vs. Judge, 34 An. 1016; State ex rel. Insurance Co. vs. Judges, 36 An. 316; State ex rel. Dupierrer vs. Judges, 35 An. 736; State ex rel. Halphen vs. Judges, 38 An. 97; State ex rel. Goodwin vs. Judges, 38 An. 270.

In the respondents’ return we note the following, viz.:

“ There is no suggestion in the record or minutes of evidence that the general exception was leveled at all the evidence in the case for want of jurisdiction ratione personse, on the ground that he (Liggins) was not domiciled in the parish where the suit was brought, as stated in the opinion of the Supreme Court in the certiorari proceedings in State ex rel. Liggins vs. Judge Third District,” etc.

Our learned brothers are under an erroneous impression. Our opinion does not state that either “ the record or minutes of evidence in the case (shows) that the general exception was leveled at the want of jurisdiction (of the court) ratione personse,” but it does state “ that the respondent returns that the relator appeared and filed an answer unaccompanied by any plea to the jurisdiction of the court; but when the plaintiffs offered evidence on the trial he interposed an objection to that effect, on the ground that he was not domiciled in the parish where the suit was brought.”

Referring to the return of the respondent judge, as it appears in the record, we find the following, viz.:

“Answer was filed and trial was begun without any plea to the jurisdiction having been filed; but when plaintiffs began to offer evidence, defendant Liggins’ counsel objected to any evidence being admitted, on the ground that the court was without jurisdiction to try the ease, as Liggins, the defendant, was domiciled in the parish of Lincoln, and judgment was prayed for, for an amount exceeding fifty dollars, exclusive of interest; on the face of the papers, this objection was overruled.”

The return is not different from the defendant’s exception, for it is “that the court is without jurisdiction to try this suit,” simply; and that expression is equally applicable to jurisdiction ratione personse, as ratione materise.

But the reference made in our opinion to the record and evidence “ shows that we predicated our judgment upon it as an exception ratione materise. ’ ’

However, this has no greater importance than the preservation of the faithfulness and integrity of our opinion in the former case.

After having examined this ease with deliberation and care, we have reached the conclusion that relator is not entitled to relief by mandamus.

It is therefore ordered and decreed that the demands of relator be rejected at his cost.