text:
    No. 13,830.
    Charles H. Willett vs. M. D. Andrews, et als.
    Syllabus.
    1. Advertisement is not a prerequisite to the admissibility of the contents of a lost document when loss is established.
    2. Parol testimony is admissible to prove the contents of a lost deed to land.
    8. A private deed of sale is binding on the heirs of the vendor and on those to whom notice is traced, even though it has not been recorded.

      4. A purchaser who seeks to oust those in possession of'property and owners of the title, who had knowledge of an unrecorded deed and who remained silent some thirty years, is without right to recover a judgment for the property.
    5. After the loss of the deed is shown, the question is one of weight of the testimony introduced in evidence to prove its contents. If the weight of testimony and all facts and circumstances sustain the claim to title, it will be held legal against one who does not show a better right to the property. The defendants are in possession and they and their ancestors in title have been in possession for a number of years under a recorded title. The hiatus in the chain of title is not one which can be of any avail to plaintiff.
    APPEAL from the Thirteenth Judicial District, Parish of Grant.— Blackman, J.

      Robert P. Hunter, for Plaintiff, Appellant.

      William O. Roberts and Horace H. White, for Defendants, Appellees.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff brings this petitory action for the purpose of recovering a tract of land he describes as the east half of the southwest quarter and the southeast quarter of the northwest quarter of section six in township six, north of range one east, and the northeast quarter of the northwest quarter of section seven of the same township and range, in the land district north of Bed river,- aggregating one hundred and sixty-one 63-100 acres.

The defendants admit that they are in possession of the property as alleged in the petition. They deny the bad faith alleged, and specially aver that one of the vendors, to whom plaintiff traces his title, was not a sole legitimate heir as plaintiff claims, and that, on account of his illegitimacy, this vendor did not, as plaintiff alleges, inherit the property and that he could not, in consequence, give title. Defendants plead the prescriptions of ten and thirty years in bar of plaintiff’s demand, and, in the alternative, they deny that they are bound for rents and revenues, and against the claim for rent, they plead the prescription of three years. The salient facts of this case have already been stated; we will not restate them in detail. See Willett vs. Andrews, 51 Ann. 486. The case is before us on a second appeal. The judgment was rendered for defendants on the second trial. It is from this judgment that the plaintiff appeals.

The question of legitimacy is answered by the testimony on the second trial. It shows affirmatively that the vendor, Elias Parker, from whom plaintiff holds, was the legitimate son and only heir of Peter D. Parker. Witnesses who were present at the marriage téstified to that fact. Their testimony is neither impeached nor contradicted. The officiating minister’s name is given and something is said of a marriage license. The locality in this State where the marriage took place is named, and the date thereof is given. The vendor, whose legitimacy was questioned, was the issue of this marriage and the only heir.

The district judge, who heard the witnesses, in his opinion in rendering judgment, said: “I find from the record that Elias B. Parker was the legitimate son of Peter D. Parker and Mary Jane Parker, now Cooper.” We think the testimony amply sustains that conclusion. But defendants insist that Peter D. Parker is not dead. We do not think that this insistance is sustained by the facts. It is shown, with reasonable certainty, that he died about the year 1865 and was buried in Cherokee county, in Texas. Witnesses, who are old residents of this State, testified that they were present during his last illness and that ■they attended his funeral. The district judge, in his opinion to which we have just referred, said: “I find, also, that the death of Peter D. Parker has been established, he having died in Texas years ago.” We think this conclusion is sustained by the facts.

We pass to a consideration of grounds urged by plaintiff against the admissibility of the testimony of Mrs. McKnight, who testified that her husband had been the owner of the property in controversy; that she, at the time — about thirty years ago — had the deed of sale in her possession showing his ownership of the property. She said that the land was entered in 1860 at the Monroe Land Office and names the grantee who went into possession after the entry of the land had been made by him and built a house on it. Later, in our decision, as the testimony has important bearing, we will excerpt further from the testimony of this witness. The question to which objection is urged is, “Was there a deed made to this land in controversy by Peter D. Parker (who held from the entry man by inheritance) and his mother to your husband. H. McKnight; have you seen the deed, or had it in your possession? Is it lost or destroyed?” It is objected that the asserted loss of the instrument had not been advertised.

We take up in the first place for decision the question regarding the necessity of advertising the loss of a document.

There are two articles in the Civil Code regarding the admissibility of the secondary evidence of a lost instrument,, viz: 2279 and 2280. Under the first article cited, this court held, in Gordon vs. Fahrenberg, & Penn, 29 Ann. 367, that a destroyed deed need not be advertised, citing Beebe vs. McNeil, 8 Ann. 130, and Weaver vs. Cox and Hampton, 15 Ann. 463. Again, in the Succession of Woods, 30 Ann. 1002, this court held that advertisment was not a prerequisite to the admissibility of testimony of lost documents when the loss is established.

The rule of evidence laid down in the second article of the Code just cited, is controlling when the instrument is made the foundation of the suit, but here the instrument was not made the foundation of the suit, nor has it anything of a commercial character requiring advertisement. A missing link in the chain of title, as in this case, is not necessarily the foundation of the suit, rendering it necessary to advertise in order to be able to prove the loss.

Counsel for plaintiff objected in the second place on the ground that parol testimony is not admissible to prove title to real estate. This ground is sustained by law, but here the attempt was not made to prove title to real estate, but to prove the contents of a lost instrument. Wood’s case, cited supra, gives rise to but one inference and that is that if the instrument is lost or destroyed, then secondary evidence is admissible. In Sharkey vs. Bankston, 30 Ann. 891, the court admitted parol proof of contents of a judgment when it was shown that the record had been destroyed. The test of the admissibility is the loss or destruction of the instrument.

The hiatus in the recorded title covers a period from 1865 to about the year 1880. Since that time, several deeds have been signed by vendors and purchasers, and they have all been duly recorded. The widow of the grantee’s successor in title was the first to testify in regard to the unrecorded asserted deed in the chain of title. She said she knew where the land in controversy is situated; that her husband had a deed to the land; that she saw it “many a time,” and had it in her possession; that “it” (the deed) “is lost and when he” (her husband) “received the deed, he brought it home and gave it to me to take care of for him.” „ (Parenthesis ours.) She mentioned a part of the consideration and said that this deed was signed by the vendors whom she named, but she did not remember who were the witnesses to the deed. Her husband had improved the land, had it surveyed, and it is shown by the testimony, that he, at one time, leased it.

Many years ago, the land was sold by this owner; no claim was made to it before plaintiff bought the title in the year 1893 from one of the descendants of the original grantee, from the government, who knew nothing about the title until about the time he transferred it to plaintiff for small consideration.

It appears that in the seventies, for a period of more than a year, plaintiff had been the lessee of H. McKnight, the owner under the asserted non-recorded title. This is not always admitted by plaintiff in his testimony, but it happens that his denials in this respect are fraught with admissions showing his lesseeship beyond question. Besides, there is other testimony corroborative of the lease from this owner, McKnight, to plaintiff also corroborative of the fact in addition to his own statement that he knew years ago of the deed in question by the Parkers, ancestors of his vendee, to McKnight. True, at times, as a witness, he stoutly denies all this, but taking the testimony as a whole, these recurring denials, while testifying, are more than counterbalanced by affirmative testimony.

The case is not a very strong one, but is strong enough to sustain itself against one who, because of the knowledge he had of an outstanding title is unable to show a better title. Sales were made of the land. Improvements were constructed, and, after these many years, it would scarcely be equitable for the defendant to enrich himself at the expense of those who bought and improved in good faith. The land in question was of little value in 1860, owing to the depreciation caused by the Civil War. Titles were not handled and kept with the care they are since lands have become of value worth considering. There is law and there are decisions sustaining title under similar circumstances. A general statute provides for the restoration of lost papers. While the bearing upon the point in issue is not direct, but being to some extent in pari materiae, it may be considered here, arguendo, at least.

The provision of this statute is, that the oath of the plaintiff is to be taken as prima facie evidence of the existence and contents of the deed. There is analogy between the lost documents to which this statute refers and the mode of supplying the lost deed which defendants invoke. We pass from the consideration of the testimony of this witness, Mrs. MeKnight (considering from the point of view of the statute, it makes out a prima facie title which plaintiff has failed to rebut).

In view of the loss, plaintiff was entitled to supply the loss. From Best on Evidence, p. 453, we quote: “I have always understood the rule to be that where a party is entitled to give secondary evidence at all, he may give any species of secondary evidence within his power.” The American rule of evidence may not be as broad, but it does not, however, exclude parol testimony.

We are well aware that the admission of evidence of contents of a lost paper gives rise to important issues. There is no good reason, however, why the testimony should not be admitted and considered if it is evident that it serves to secure a right to which parties are justly entitled. The sincerity and candor of those who seek to prove contents of lost documents must be above all suspicion and, in addition, corroborative facts obtainable must not be withheld. The judge of the District Court, who is entrusted with some discretion in determining these facts, did not discover any attempted wrong, or the least injury sought in matter of supplying this title. We, on appeal, have not found that he has erred.

In the third place, plaintiff objected to the testimony to supply loss on the ground that it would be irrelevant and immaterial unless it was shown that the act was duly recorded. This position is correct as relates to third persons, but here the issue tendered by defendant was that the plaintiff is not a third person without notice. The fact is that notice, in our view, was brought home to plaintiff who knew, in 1866, that McKnight 'was in possession of the property. We have seen that thereafter he became the lessee of the land. It also appears that to several witnesses he spoke of the sale and the price. From all the testimony we glean that plaintiff was not a stranger to this deed. If plaintiff had, at the time, raised questions now pressed by him upon our attention, the issues would be different, or if he, years after, had become aware that there was a hiatus or missing link in the title, the right he sets up would present itself in a different light. But warned as he was of a title and silent as he remained for more than thirty years, while the land was sold, improved, and passed into the.hands of third persons and has become of some value, we do not think that he is entitled to recover.

We cannot overlook the fact that plaintiff’s author, Elias Parker, knew nothing of any right in himself to this property; that his father, who had owned it, had left the State and never made the least inquiry about the title to this land. The construction of a railroad passing close by and the construction of a saw-mill near the land had given :t value. Ye* the purchase price mentioned in plaintiff’s deed of purchase was only six hundred dollars, but it was much .less, in reality, if the utterances of plaintiff are truly reported by two witnesses. True, defendant’s author paid very little for the land. The difference is that the last is prior in date, and that parties for these many years held under it.

Eecurring to the question of notice, it has been decided by this court that where notice has been traced to a vendee, it supplies the place of registry; and, further, that one is bound by the knowledge he has acquired of an unrecorded title, and that the “knowledge of the unrecorded title constitutes bad faith.” Hennen’s Digest, p. 1306, No. 21.

The views we have expressed and the conclusions at which we have arrived, relieve us from the necessity of passing upon the pleas of prescription interposed by the defendants.

For the reasons assigned, the judgment is affirmed.

Provosty, J., takes no part, this case having been submitted prior to his taking his seat on this bench.

Behearing refused.


source: Caselaw Access Project

author: Monroe, J.

license: Public Domain

text:
    No. 13,981.
    St. Joseph Plank Road Co. vs. Mrs. Fannie A. Kline. Mrs. Fannie A. Kline vs. St. Joseph Plank Road Co. (Consolidated).
    Syllabus.
    1. The police juries throughout the State have plenary power with respect to the establishment of public roads in the parishes, and have no less power with respect to the discontinuance, or abandonment, of such roads, and it is within their discretion to establish a toll road, upon the site of a free road, or elsewhere.
    2. The authority of the police juries, with respect to the construction and management of toll roads, is as broad as that which concerns the establishment of such roads, and they may build, maintain, and operate such roads, directly, or they may contract with others, whether corporations or individuals, for their construction, maintenance, and operation, and the courts will not interfere with the discretion vested in them unless it appears that such discretion has been grossly abused.
    3. An ordinance of the police jury of Tensas parish whereby the St. Joseph Plank Road Company is authorized to construct, maintain, and operate a toll road over a road extending three miles westward from the parish seat, which road was, at the time, a public highway, but for many years, had been a toll road, is not in contravention of Article 48 of the Constitution, as conferring a monopoly on said company; or of Article 58, as granting the property of the parish to a private corporation ; the obligation being imposed upon the company to reconstruct and maintain the road, and the tolls authorized to be collected, being limited to an amount sufficient to pay the company for the use of its money and for its services.
    4. Should unjust discrimination in the tolls charged be shown, in a proper pro ceedlng, a remedy would be afforded.
    APPEAL from the Tenth Judicial District, Parish of Tensas.— Dagg, J.

      Snyder & Clinton and Hugh Tullis, for St. Joseph Plank Road Company, Appellee.

      Abner E. Oreen (Boatner, Dodds & Boatner, of Counsel), for Mrs. Fannie A. Kline, Appellant.
   Statement op the Case.

The opinion of the court was delivered by

Monroe, J.

The St. Joseph Plank Road Company sues for the recovery of tolls alleged to be due by Mrs. Fannie A. Kline for the use of a plank road established and maintained by said company. The defense relied on is that the police jury of the Parish of Tensas has undertaken to convert a public highway into a toll road and to give to a private corporation the exclusive control of it, and that such action is ultra vires and in contravention of Article 48 of the Constitution of the State.

Mrs. Kline, by separate suit, prays that the company be condemned to remove its gates and prohibited from exacting tolls for the use of said road, and that it be further condemned to pay her $2,500.00 as damages alleged to have been sustained in her business by reason of loss of patronage resulting from the exaction of tolls, and the two suits were consolidated, by consent. It appears from the evidence that the road in question is a public highway, extending three miles westward from St. Joseph, the parish seat of Tensas Parish; that from some time during the war, when the planking with which it had been provided was destroyed, up to 1876, it was impossible for planters, and others, to haul freight oyer said road during the wet season, and that its maintenance, in passable condition, is indispensable in order to enable such planters, and other persons, living in the country, back of St. Joseph, to reach the town and the Mississippi river, upon which it is situated, for the shipment of their crops, the obtention of their supplies, or the transaction of other business. It further appears that, in 1876, a company was organized, which, with" the authority of the police jury, constructed a plank road on said highway and maintained the same, by means of tolls, for ten years, when its grant terminated, and it was succeeded by another company, which maintained said road under the same authority and by the same means for another ten years, when its grant expired, and that there was, then, an interval of two years, during which the road fell into bad repair, and that, upon December 5th, 1898, the present company, having been organized, was vested with authority to re-establish and maintain said plank road for still another period of ten years, agreeably to the terms of an ordinance adopted by the said police jury and reading as follows, to-wit:

“Be it ordained, by the police jury of the Parish of Tensas, that the “following act of incorporation of the Saint Joseph Plank Road Com- “ pany be, and it is hereby indorsed and approved, and said company is “hereby authorized to operate, maintain and control a plank road “along the line of the public road described in the charter of said “plank road company, as follows, to-wit: The public road leading “ from the town of St. Joseph in a westwardly direction to the terminus “ of the present existing plank road on the Avondale plantation. That “ the exclusive right of way over said road is hereby granted and “ secured to the said St. Joseph Plank' Road Company, to begin on the “26th of January, 1899, and to continue for a term of ten years from “ said date. That said company shall have the right to charge tolls on “ said road for a term of ten years from the date hereof and, until “ otherwise provided, said rates of toll shall be fixed as follows:
******

(Then follow specifications of rates upon the various articles and commodities likely to be carried over the road, after which the ordinance proceeds:)

“Provided no toll shall be demanded of any person traveling on official “ business for the parish, State, Levee Board, or general government. “ That if any person shall pass on any portion of said plank road for “ any distance without paying, then and there, the legal rates of toll “ therefor, such person shall be deemed guilty of a misdemeanor, ánd, “ upon conviction thereof, before any court of competent jurisdiction, “ shall be punished by fine and imprisonment, or both, at the discretion “ of the court. That it shall be the duty of the said Saint Joseph Plank “ Road Company to maintain and keep said road in good condition and “ repair, and to regulate the rates of toll thereon from time to time; “ that the earnings of the said company shall never exceed a sufficient “ sum to maintain and keep said road in good repair, to pay the stockholders the amount of their subscription, and to pay them 8 per cent. “ per annum interest on their investment. * * * Further ordained “ that the franchise herein provided is granted upon the express condi- “ tion that, upon the expiration of the ten years herein mentioned, the “said road shall be turned over to the parochial authorities in good “ condition and repair.” It further appears that the cost of the road, originally, with lumber at $14.00 per thousand, was about $4,000.00 per. mile and that with lumber at $18.00 per thousand, the present price, the ■cost will be between $4,800.00 -and $5,000.00 per mile, and that the average life of the planks of which the road is built is about four years. The president of the police jury gives the following explanation of his action as a member of that body: “Q. Please state what “ reasons induced you, as a member of the police jury of this parish, “to give your vote in favor of granting to the Saint Joseph Plank “ Road Company the right to operate its present plank road line, and “ to charge tolls for the use of the same ? A. Because it was an “ absolute necessity to connect the town of St. Joseph with the back “ country. Q. Would you have considered it judicious, as a member of “ the police jury, to have voted for. an appropriation of $14,000.00 to “ construct a free plank road over this line, with the knowledge that “the same was expensive to be maintained, and would have to be “ renewed, at a like cost, every four years; and was the financial condi- “ tion of the Parish of Tensas, at the time of the establishment of the “ present plank road, such as to have permitted, or justified, such an “ extraordinary expenditure ? A. It would not have been judicious. “ The condition of the parish, financially, would not have justified the “ expenditure.”
The clerk of the District Court gives the following testimony, which is abundantly supported, and is wholly uncontradicted, as to the conditions which render the plank road a necessity. Being asked as to the character of the country, population, etc., west of St. Joseph, he says: “ The country is a flat, level country, to Tensas river, a distance of “about twenty miles, not densely populated; the ridge lands are used “for agricultural purposes, and, I should judge, not a fourth of the “ land is in cultivation. Most of the population receive their freight, “and ship their goods, at St. Joseph, passing over the plank road. “ This is specially true after the winter rains set in and the roads to the “ other landings become impassable. I think, approximately, there are “ fully three or four thousand bales of cotton hauled over the plank “ road annually.”
“ The soil (over which the road passes) is a black, gummy, buckshot “ soil, with which it is impossible to make a passable road during rainy “ weather.”

The evidence further shows that Mrs. Kline used the plank road, as operated by the predecessor of the present company, and has used said road, as now operated, altogether, for eleven years, or more, and that it has been her custom, as it has also been the custom of other solvent persons, to whom credit was given, to pay her tolls at the end of each year; and no question is raised as to the correctness of the figures representing the account sued on. It also appears that Mrs. Kline leased the premises, now occupied by her for the purposes of a store and residence, from the owner of Mt. Ararat plantation, of which they form part, upon October 12th, 1899, nearly nine months after the plank road company had assumed control, and that said premises are situated on the plank road at a distance of about a mile from its western terminus and have no other means of access than by said road. It does not appear that Mrs. Kline is the owner of any land on said road. The capital stock of the company is fixed by the charter at $5,000.00. There was judgment in the District Court in favor of the company.

Opinion.

There can be no doubt that the plank road is a vital necessity, and it is not denied that it has been maintained and operated, with occasional intervals, as a toll road, for a great many years, to the satisfaction of the community in which it is established. It does not appear that any owner of the land in the parish, whether contiguous to the road or otherwise, has complained of the manner of its administration, and no complaint from such source is now presented. Upon the contrary, the land owners appear to concur in the course pursued by the police jury and to approve of it, the present claimant being a lessee who took 'her present lease with full knowledge of existing conditions, and whose lessor remains silent. The statute law conferring authority upon police juries in such matters is embraced in the following provisions:

Act 115 of 1898, amending and re-enacting Section 2743 of the Eevised Statutes so as to make said section read as follows, to-wit:

“Section 2743. The police juries shall have power to make all such “ regulations as they may deem expedient.”
* * * * * . *
“Second. As to the proportion and direction, the making and repairing of the roads, bridges, causeways, dikes, levees, and other high- “ ways.
*******
“Fifteenth. To grant permission and to determine the rate of toll to “ be demanded by persons desiring to build a bridge, or make a turn“pike road; provided, that in no case whatever the police jury shall “ grant the right of toll for more than ten years.”
*******
E. S. Section 2750 (and 3364). “The police juries of all the parishes “ of this State are authorized to pass all such ordinances as they may “ deem necessary relative to roads, bridges and ditches, and to impose “such fines and penalties to enforce the same as they, may think “ proper, to be recovered and enforced by indictment and information,
in the name of the State, or by ordinary process, before any court of “ competent jurisdiction, in the name of the police jury of the parish.”
A * * * * * *
“Sec. 3380. No person shall turn, alter, or change, any public road “unless it be by order of the police jury, under the penalty of one “ hundred dollars for each month the road is turned out of its course, “ to be recovered — one-half to the use of the person suing for the “ same.”
The learned counsel who represent Mrs. Kline, referring, in their brief, to the views expressed by the judge a quo, as to the meaning and effect of the Section (2750) 3364, quoted above, say: “He seems to “have overlooked, or. disregarded, Section 3385, which declares all “ roads controlled and regulated by police juries, and all roads in open “ and common use twelve months prior to the passage of the act (1868) “ to be public roads, not to be closed, obstructed, or changed, without “ the consent of the contiguous property holders, and the approval of “ the police jury.”

An explanation of the circumstance to which attention is thus called is, perhaps, to be found in the Act No. 101 of 1880, which reads: ‘‘Be it enacted, etc., That Section 3385 of the Revised Statutes of 1870 be, and the same is, hereby repealed,” and which would seem rather to emphasize the plenary grant to the police juries, as contained in the section referred to by the district judge, the more particularly, as affecting the authority of those bodies in the matter of turning, or altering public roads, since, when the language of that section is considered in connection with that used in Section 3380, above quoted, it becomes evident that the legislation was affirmatively intended to remove the limitation, imposed by Section 3385, upon the power of the police juries, and to leave the prohibition against changing or altering roads, to apply only to individuals acting without authority from those bodies. Referring to the grant of authority, as contained in the Sections 2750 and 3364, as originally adopted, Mr. Justice Spofford, as the organ of this court, made use of the following language, to-wit:

“The whole subject seems to have been confided to the uncontrolled discretion of the police juries.” King vs. Police Jury, 12 Ann. 558.
In another case the court, speaking through the Chief Justice, said: “ As the police juries have power to make roads, we see no reason why “ the power conferred is not complete, and why the police jury may not, “in order to avoid the expense of the appropriation of property, “ authorize the owners of the soil over which the road passes, to keep “ certain gates, as was done in the ease before us, thus securing the right of way for the public with the least injury to the owner. The police jury had the right to abandon the road altogether, as well as to “ open it, and if they have determined that the public shall not exercise “ the right of way, except as subject to the gates of owners, they have “only refrained from exercising all the power with which they are “ invested. * * * What they have sanctioned as pertaining to the “ road forms part of the same.”

Hunsicker vs. Briscoe, 12 Ann. 170.

And to the same effect are the decisions in later cases. Parish of St. Martin ex rel. Baker vs. Delahoussaye, 30 Ann. 1092; Barrow vs. Hepler et als., 34 Ann. 365; Sanders vs. Levy, 42 Ann. 407.

Applying to the instant ease, the language used in the case of Hunsicker vs. Briscoe (supra), it may be said that, in converting a free dirt road, impassable during a great part of the year, into a toll plank road, available at all times, the police jury of Tensas Parish has refrained from exercising all the power with which it is invested, since it might have abandoned the road altogether, and, if it was competent to abandon the free road, it was competent to establish upon the same site, as upon any other site, a toll road to subserve the purposes which the free road did not subserve. “A turnpike is a public highway, differ- “ ing neither in the responsibility for its proper maintenance, nor in “ any other particular, from any ordinary highway. No additional “burden is imposed by changing a public highway into a toll road. “ The change is not in the character of the servitude, but in the method “ of sustaining the highway; in the one case it is sustained by taxes, in “ the other by tolls.” Am. and Eng. Ency. of Law, 1st Ed., Vol. 27, verbo Turnpike, page 325, notes 1 and 4. The police jury elected to have the road thus established built of plank. That fact, in no manner, affects the question, since a plank road may be as much a public highway as a road constructed of any other material. Craig vs. People, 42 Ill. 487. Nor, so far as we can see, does it affect the question that the police jury should have elected to build, maintain and operate the road, through the medium of a corporation and under the arrangement as made, rather than by means of money borrowed, and of a superintendent and laborers, and collectors, employed directly by it, the money so borrowed, and the employees so retained, being paid from the tolls collected by persons paid by the police jury for that special service.

The authority of the police jury, with respect to the management, is as broad as that whereby it opens, changes, abandons or re-establishes, a public road, and the corporation acting as the agency through which the road is maintained, as well as constructed, in the one case, can no more be said to be vested with a monopoly, in violation of any constitutional provision, than could the superintendent and toll gate keepers, employed by the police jury, in the other case, the powers conferred upon such corporation being merely incidental to the discharge by the police jury, of its functions with respect to the roads of the parish, just as the regulation of commerce, in a limited sense, is incidental to the maintenance of State quarantine and to municipal control of wharves. A case for the interference of the courts might be presented if it were mí de to appear that a fraud had been, or was about to be perpetrated, or that the police jury had grossly abused the authority and discretion vested in it. But no such case is presented here. There is no charge of fraud or improper influence. On the contrary, the action taken appears to have been for the best interest of the community concerned in the subject matter acted on, and the mass of that community has for many years approved, and now approves, of that action. It is said, by way of argument, that the ordinance of the police jury contravenes Article 58 of the Constitution, in that it, in effect, gives to the Plank Road Company a right of way which it would otherwise have been compelled to buy, and also gives to said company the material constituting the plank road in existence at the date of the adoption of said ordinance. The answer to this is, however, fairly included in what has been said already. The police jury was called upon to determine what it would do with a dilapidated plank road, as to which the law invested it with plenary power, and it decided to turn it over, for reconstruction and maintenance, to a corporation created for that purpose, rather than undertake such reconstruction and maintenance itself, and, at the same time, to make it a toll road, and appropriate the tolls to what it considered the reasonable reimbursement of the contracting corporation. This does not appear to us to be the giving or granting of the property of the parish within the meaning of the article of the Constitution referred to. In conclusion, it may be remarked that there is some evidence in the record tending to show discrimination in the tolls charged, and that we entertain no doubt that, should unjust and persistent discrimination be established in a proper proceeding, a remedy would be afforded. There is, however, no error in the judgment appealed from, and it is, accordingly, affirmed.


author: Nicholls, O. J.

text:
    No. 14,009.
    W. R. Farmer vs. F. F. Myles.
    Syllabus.
    Police Juries have no legal authority to grant a right to construct, own, and operate a line of railways over and through the public roads in the parishes. The authority conferred upon them by Section 2750 of the Revised Statutes relates to the ordinary acts of administration of roads, used for their customary purposes.
    APPEAL from the Nineteenth Judicial District, Parish of Iberia.— Foster, J..

      A. J. Commack, for Plaintifi, Appellant.

      Walter J. Burke & Bros., and Clegg & Quintero, for Defendant, Appellee.
   Statement of the Case.

The opinion of the court was delivered by

Nicholls, O. J.

The plaintiff, a resident of the Parish of Iberia, averred in the petition filed by him that he owned a certain tract of land on both sides of the public road leading from the town of New Iberia to Jeanerette, La., about three miles below the town of New Iberia, and that he was a property tax payer of the Parish of Iberia, State of Louisiana, and that one F. F. Myles, also a resident of the Parish of Iberia, State of Louisiana, had by ordinance of the police jury of the Parish of Iberia, obtained the right of way over the public road leading from New Iberia to Berwick, along said road, to run, operate and conduct an electric railway for the carrying of both passengers and freight, the motive power of which should be either electricity or steam, and that the police jury of the Parish of Iberia had no right or authority, under its powers, to grant or convey to any person or persons or associations of persons, or corporation, the right to operate or conduct a railway over or along said public roads which had been conveyed or dedicated to public uses for the accommodation of persons on foot or in vehicles, as was the case here.

That this road was dedicated to public use for the convenience and accommodation of all persons who wish to travel either by foot or on horse back, or by private conveyance, and that it was neither intended that a right of way should be granted along the center of this road to any private person or corporation for the purposes of conducting and carrying on a general freight and passenger traffic as the defendant in this case proposed to do under and by virtue of a resolution of the police jury of the Parish of Iberia, which pretended to grant an absolute right of way over and along this public road to the defendant P. F. Myles and his associates or assigns for the period of ninety-nine years, the entire length of said road from the town of New Iberia to the lower limits of the Parish of Iberia along the public road which follows the course of the Bayou Teche, which is a navigable stream, and that this resolution which pretended to grant the right of way to this defendant F. F. Myles, and his associates or assigns, to build and operate an electric line of railway along and over this road which belongs to the property tax payers, adjacent thereto, was an absolute nullity, and that the police jury of the Parish of Iberia had no right or authority under its powers to grant franchises or right of way over the public road to private parties or corporations for the purposes contemplated by the defendant in this suit.

That the defendant, F. F. Myles, had engaged the services of an engineer to run the lines and take the levels incident to the construction of this proposed line of railway along this road across and through petitioner’s property, and that if this road was built along the public road which crosses petitioner’s property it would cause petitioner to be damaged in the full sum of two thousand five hundred dollars by depriving petitioner of the free and unobstructed use of said road in the hauling and transporting of his crop along said road, as he was now privileged to do, under the vested right which he had in and to this public road.

That this land which was now used as a public road and which crosses petitioner’s property, was dedicated to the public for ordinary road purposes and not for railroad purposes, and that the fee vested in the adjacent land owners, subject to the use by the public for the purposes for which it was dedicated and not for any other purpose, and that the police jury of the Parish of Iberia was absolutely without authority to grant or give a franchise to the defendant, F. F. Myles, or any other party or parties to construct, own and operate a line of railway along- and over this public road, and that the Legislature alone had the authority and right to grant such franchise, and that the franchise just granted to E. E. Myles and his associates and successors to construct, own and operate a line of railway along this public road across petitioner’s property was an absolute nullity and was without force and effect.

In view of the premises, petitioner prayed that the defendant, E. E. Myles, be duly cited to appear and answer • this demand, and that service hereof be made upon him, and that after all legal proceedings were had, the ordinance of the police jury of the Parish of Iberia, enacted on the — day of-A. D. 1900, pretending to grant and give to the defendant, E. E. Myles, a franchise over and along the public road between the town of New Iberia and the lower limits of the Parish of Iberia, and especially across the property of petitioner, to construct, own and operate a railway to be run and operated by electricity, be decreed to be absolutely null and void and without force and effect, and that defendant, E. E. Myles, and his associates and assigns, were without any franchise along said public road and that the defendant, F. F. Myles, be enjoined and restrained and inhibited from the building, constructing and operating of said proposed line of railroad along, across and over the public road which traversed petitioner’s property, and for any and all other orders necessary and proper in the premises and for costs and for general relief.

The defendant relies upon a resolution of the police jury of Iberia, of which we find in the record the following copy:

Eesolution adopted at regular meeting of the police jury of the Parish of Iberia, New Iberia, La., November 2nd, 1900.

Acting upon the petition of Mr. F. E. Myles, the following resolution was adopted:

Be it resolved, That considering the proposition of F. E. Myles set forth in open session of the police jury of this day, a franchise is hereby granted to said E. E. Myles, his associates of assigns, to construct, own and operate a line of railway, of which the motive power will be electric energy or such other power as the said E. F. Myles, his associates or assigns, may elect, subject to the approval of the police jury, and said line to extend over and through the main road running along or within a few acres of the Bayou Teche, extending from the southern limits of the City of New Iberia to the town of Jeanerette.

The said franchise to be exercised along either side of said public road as will be designated by the police jury, and the road when once laid, on either side of said road, shall be considered to have been so laid as desired by said police jury. Grantees are to maintain in good order and repair, ballasted with gravel, the rails being level with the road-bed, and in such manner as not to interfere with the drainage of the road, that portion of the road covered by the cross-ties. The drainage on that side of the road, along which the track will run, is to be maintained by the grantee, his associates or assigns, in a manner sufficient to carry off all waters gathering thereon.

This franchise is granted subject to such additional conditions as may be imposed by the police jury of St. Mary parish upon the pending application of the present grantee, his associates or assigns, for a similar franchise, provided these conditions be not detrimental to those imposed above or herein, and provided the police jury deems proper to adopt them, giving timely notice thereof.

This said franchise is granted for a term of ninety-nine (99) years. The franchise granted will become void if the bona fide construction of said road is not begun within twelve months from this date, and the said road completed and in operation within thirty months after the beginning of construction.

Be it further resolved, That under the same terms and conditions as above set forth, the franchise is likewise granted over and through the public road from that point at the intersection of Ann street in New Iberia, and the road running southward the west side of the Morgan’s La. & T. B. B. over and alond said road and running parallel to the said railroad and down to Lewis avenue and thence along Lewis avenue to the main road above first described, the purpose being to grant a franchise along and over said road above set forth so as to perfect a belt line for local service in and about the City of New Iberia and connecting said belt line with the main line extending from New Iberia to the southern limits of the parish beyond.”

It was admitted on the trial that W. B. Farmer owned a plantation situated on Bayou Teche, extending within parallel lines to the rea>\ to Grandmarais, and that the public highway over which the proposed railroad was to be constructed ran directly through the said plantation from the northern to the southern line. The said public road was that which followed the Bayou Teche along its course and more particularly from New Iberia to Berwick City, but it did not run immediately on the banks of said bayou, but followed it at a distance of about four to six acres, there being no road open immediately along the bayou bank.

The defendant introduced in evidence a report of the engineers to him showing population, extent of territory, valuations and other facts.

It was admitted by plaintiff that the data set forth in the report as to the population, area, settlements, manufacturing and agricultural interests, industries and institutions, and all kindred facts and matters set forth in the report, were correct, and for the purpose of this action of plaintiffs w'as admitted and not contradicted.

The District Court rejected plaintiff’s demand and dismissed his suit, and he appealed.

Opinion.

This case raises an issue as to the power of police juries in respect to roads. The sections of the Revised Statutes bearing upon the subject are sections 2743 and 2750. Those sections read as follows:

Section 2743. The police juries shall have power to make all such regulations as they may deem expedient. * * *
Second. As to the proportion and direction, the making and repairing of the roads, bridges, causeways, ditches, levees and other highways. * * *

Ninth. The police juries of the several parishes of the State (the Parish of Orleans excepted) shall have the exclusive privilege of establishing ferries and toll bridges within their respective limits; of fixing the rates of ferriage and toll to be charged thereon, and of generally regulating the police of the same. * * *

Fifteenth. To grant permission and to determine the rate of toll to be demanded by persons desiring to build a bridge or make a turnpike road; provided, that in no case whatever the police jury shall grant the right of toll for more than ten years.

Section 2750. The police juries of all the parishes in the State are authorized to pass all such ordinances as they may deem necessary relative to roads, bridges and ditches, and to impose such fines and penalties and to enforce the same as they may think proper to be recovered and enforced by indictment and information in the name of the State, or by ordinary process before any court of competent jurisdiction in the name of the police jury of the parish.

The right conferred upon the defendant in this case by the police jury is “a franchise to construct, own and operate a line of railway,’’ of which the motive power will be electric energy or such other power as the grantee will elect, subject to the approval of the police jury. The line is to extend over and through the main road, running along or within a few acres of the Bayou Teche, from the southern limits of the Oity of New Iberia to the town of Jeanerette. The grant is for ninety-nine years. The only obligation imposed upon the grantee :s that “he is to maintain in good order and repair, ballasted with gravel, the rails being level with the road-bed and in such manner as not to interfere with the drainage of the road, that portion of the road covered by the cross-ties. The drainage on that side of the road along which the track will run is to be maintained in a manner sufficient to carry off all waters gathering thereon.” There are no obligations, nor conditions, nor restrictions, imposed upon the grantee by the police jury as to what he will be called upon to do or what he can be forced to do should the road be built; that matter seems to be left to him unless the declaration “that the franchise is granted subject to such additional conditions as may be imposed upon the present grantee by the police jury of St. Mary Parish, upon the pending application by him for a similar franchise” may control him. What those conditions (to be imposed hereafter by a body other than itself) may or will be does not appear. Even should defined conditions be imposed and fixed by the police jury of St. Mary Parish upon the grantee, they are to be binding only in the event the police jury of Iberia thinks proper to-adopt them. The ordinance reserves neither in detail, nor even in general terms, any power of control, regulation or police, over the future actions of the grantee. It is obviously the belief of both the police jury of Iberia and the grantee, that under and by virtue of the franchise, the grantee has not only been granted the right to “construct, own and operate a line of railway,” but to charge toll, and this for ninety-nine years.

It will be seen that the only direct or express authority conferred upon the police jury to authorize for a limited time the exaction of toll, is the toll to be charged by “keepers of ferries or toll bridges or turnpike roads.” Railroads or railways are not referred to at all. Affirmatio unius exclusio est alierius.

The right to charge toll upon a public highway is a franchise; it must come from the Legislature; it is not an implied power. (Lawson’s Remedies and Procedure of Public Rights and Remedies, Vol. 7, p. 6276, Section 4003; Harvey vs. Peters, 19 Ann. 265.)

The right which is conferred is not permission to a person or body having an existing right to charge toll, to lay its rails and run along a particular public road of the Parish of Iberia, but it is the very right itself of “constructing, owning and operating a line of railway” (with the supposed accompanying right of charging toll) upon said road for ninety-nine years.

We do not think that under provisions of Section 2750, B. S., police juries are given the right to grant a franchise to construct, operate and own a line of railways “along a public road of a jjarish” for ninety-nine years. Still less are they authorized to grant a right to charge toll for that time. The operating of a line of electric ears along a public road in the country parishes where there are deep ditches on both sides of the roads, and there are very limited means for avoiding coming almost into contact with the passing cars, is attended with very serious danger, not only to the citizens of the Parish of Iberia, but to those of the other parishes who may be passing along the highway. Such use may be convenient, hut it certainly detracts from the safety of country roads. A right to so use a road is one to be exercised only by direct permission, under special legal authority under proper restrictions for the public safety, as well as for the public convenience. The legal authority to do this must not be deduced from general provisions of a law; it should not be implied, but it should be conferred in express terms. We are asked in this case to place upon the indefinite action which has been taken in this particular matter by the police jury of Iberia, the seal of judicial sanction, to say that not only what has been done, but what may be done, and will be done in the premises, is legal. As matters stand, we would not be justified in doing so.

If the authority claimed by a police jury to act in respect to a particular matter had been expressly conferred upon it by the Legislature, we might not he warranted in interfering with the exercise of the power except in case of abuse, but where a case comes before this court asking its sanction to action taken by a police jury in the exercise of what would be, at most, an implied power, we cannot do so upon an ordinance so indefinite as that submitted to us in this case. The court, before taking action, must stand upon much firmer legal ground than it does in this instance.

We presume the defendant bases the authority -of the police jury of Iberia to have granted him the privilege or franchise, which it did, upon the provisions of Section 2150 of the Revised Statutes which authorize police juries “to pass all such ordinances as they may deem necessary relative to roads, bridges and ditches, and to impose such fines and penalties to enforce the same as they may think proper,” and that he predicates the scope of this authority upon that which might follow from a similar general grant of power conferred', upon the authorities of a city. The rights, powers, duties and liabilities of a parish and its governing officers differ materially from those of a city. It is not necessary to enter into any extended examination here of the reasons for this difference. The jurisprudence of Louisiana (as well as that of other States of the Union) has recognized that fact, and we must regard it as an accepted and established premise, in dealing with rights or privileges, asserted to have been derived from authority of a police jury. Parish vs. Gaddis, 9 Ann. 432; City vs. Kerr & Gally, 50 Ann. 413; Sherman vs. Parish of Vermilion, 51 Ann. 884; Fisher vs. Police Jury, 52 Ann. 433; Planter’s Oil Co. vs. Monroe, 52 Ann. 1248.

Dillon, in his work on Municipal Corporations, Section 23, draws the distinction between municipal corporations proper, such as a city, and quasi corporations such as counties (parishes). He says that “counties are at most local organizations, which, for the purposes of civil administration, are invested with a few functions, characteristic of a corporate existence. They are local subdivisions of the State, created by the sovereign power of the State of its own sovereign will, without the particular solicitation, consent or concurrent action of the people who inhabit them.” “Municipal organization (proper) is asked for or nt least assented to by the people it embraces; the latter organization (counties) is superimposed by a sovereign and paramount authority. A county is one of the public territorial divisions of a State, created and organized for public political purposes connected with the administration of the State government, and specially charged with the superintendence and administration of the local affairs of the community, and being in its nature and objects a municipal organization, the Legislature may, unless restrained by the Oonstitution or some other of those fundamental maxims of right and justice with respect to which all governments and society are supposed to be organized, exercise control over the county agencies and require such public duties and functions to be performed by them as fall within the general scope and objects of the municipal organization.” A municipal corporation proper is created mainly for the interest, advantage and convenience of the locality and its people; a county organization is created almost exclusively with a view to the policy of the State at large, for the purposes of political organization and civil administration in matters of finance, of education, of provision for the poor, of military organization, of the means of travel and transport and especially for the general administration of justice.

With scarcely an exception, all the powers and functions of the county organization have a direct and exclusive reference to the general policy of the State, and are in fact but a branch of the general administration of that policy. (See Section 438 on the same subject). Eeferring in Section 25 (10-a) to “civil corporations,” the author says “they are of different grades or classes, but in essence and nature they must all be regarded as public.” Tie refers to “school districts” and to “road districts,” and says “they are but instrumentalities of the State and the State incorporates them that they may more effectually discharge their appointed duty; they are involuntary political or civil divisions of the State, created by general laws to aid in the administration of government, and so are counties. Their powers are not uniform in all the States, but they generally relate to the administration of justice, the support of the poor, the establishment and repair of highways, all of which are matters of State, as distinguished from municipal concern. They are purely auxiliaries of the State, and to the general statutes of the State they owe their creation, and the statutes confer upon them all the powers they possess, prescribe all the duties they owe and impose all the liabilities to which they are subject. Considered with respect to the limited number of their corporate powers, the bodies above named rank low in the grade of corporate existence, and have been frequently termed quasi corporations. This designation distinguishes them on the one hand from private corporations aggregate, and on the other hand from municipal corporations proper, such as cities or towns acting under charters or incorporating statutes, and which are invested with more powers and endowed with more functions and a larger measure of corporate life.”

We think a parish can be properly classed as a “body politic” with corporate form. When cities are given existence by statute, they are created entities entirely separate and distinct from the State for many purposes and with rights, duties and liabilities separate and distinct from those of the .State, though they are frequently charged by statute with the performance of special State duties, but when counties are created the governing authorities remain and act throughout as “State” governmental instrumentalities or agencies. The relations between city corporations and the people therein are much more close and direct than are those between parishes and the citizens thereof. Cities generally act upon matters within their delegated powers in their own right, and not as State agencies, while the acts of the police jury are those of the State, through the police jury, acting as a governmental instrumentality. The city authorities deal generally with matters of their own with which the State has, if any, but remote con'cern, while police juries deal with matters in respect to which they hold no “corporate” rights, but simply administer for the State under limited powers. Parties claiming rights under such circumstances must show very clearly the holding by the public agency of the authority to confer the rights. The statutes under which authority is claimed are construed with strictness and are not extended by implication to cover matters not generally belonging to bodies of that particular class.

Coming now to the rights which the police jury of Iberia undertook to confer upon the defendant, Elliot, in his work on Roads and Streets (Section 397), declares that “there is an essential difference between urban and suburban servitudes; the owner of the dominant estate in an urban servitude has very much more authority and much greater rights than the owner on the dominant estate in a suburban servitude. The easement of the one is very much more comprehensive than that of the other. It is doubtful whether, of all servitudes, there is another one so broad and comprehensive as that of a city in its streets. On the other hand, the easement of the public in a suburban road is not much greater than many merely private easements, if, indeed, it is as great. City officers in charge of streets may do many things that rural highway officers have no authority to do, for the authority of one class of officers extends far beyond that of the other class. Many of the rules which apply to the one class of easement are wholly without force as against the other class.

Decisions affecting streets cannot always be considered as of force or relevancy where country ways are the Subject of litigation.” In Indianapolis vs. State, 37 Ind. 496, the court said: “Over the public highways, without the limits of a city, the Legislature have retained their authority, but within the limits of a city the Legislature have delegated their authority to the common council of the city, and their action in relation thereto will be of the same force and effect as the acts of the Legislature in relation to the public highways without.”

A land owner who dedicates a strip of ground for a street, sets ¡t apart to a.very different use from that to which one devotes land which he dedicates for a country road. The one parts with many rights and privileges which the other retains. The owner of the fee of a rural highway may make many uses of it which the owner of the fee of a street in a city cannot. Private ownership in the fee of a street does not carry any general right to use the street for private purposes or profit, while the owner of the fee in a country road retains many privileges and rights. These rights of the rural proprietor the local officers can seldom take away from him. They can, it is certain, only deprive him of them when it is necessary to make the highway safe and convenient for travel. The standard by which the authority and the right of the local officers in control of suburban roads are to be measured is to be fixed by law, for they have no authority to make any other use of the way than that to which it was dedicated, or for which it was appropriated under the right of eminent domain. In the case of a dedication, the law enters into the act as a silent but potent factor and fixes the respective rights of the owners of the dominant and servient estates, and in the ease of a seizure, the owner receives compensation only to the extent to which his property is taken or injured. In neither case, therefore, does he part with any other right than such as is embraced within the right of the public to use the land acquired from him for a country road.” (Elliott on Eoads and Streets.)

While the control of the highway officers over a rural road is by no means so extensive as that of municipal officers over a city street, still it is extensive enough to authorize the rural highway officers to do lawfully whatever is necessary to be done to make a safe, convenient public country road, and may use it for public purposes legitimately connected with that particular kind of road.

Elliot says in his work on Eoads and Streets (Section 420), that the easement of the public in a rural road consists in the right to use it for the purpose of passing and repassing; that the right of passage, as the old books put it, is “the liberty of all citizens to pass and repass on foot, on horseback and in carriages and wagons.” The word “carriage,” as here used, means obviously the carriage ordinarily employed for rural road travel and not the railway ear or upon a railroad. The road can be occasionally used under peculiar care and precaution in the transfer of special objects which necessity requires should be conveyed upon them.

We are of the opinion that police juries have no authority under a grant of authority couched in such general terms as is that conferred in Section 2750 of the Revised Statutes, to authorize the constructing and operating of railroads or railways over and upon rural public roads. The grant of power for this purpose must be specific and not implied. The ordinances relative to roads which that section authorizes are those relating to the ordinary acts of administration of roads used for their customary purposes. Tilton vs. Railroad, 35 Ann. 1047.

Country roads cannot be occupied by street railway tracks without legislative sanction: In an English case, the governing officers of a parish granted the right to construct a tramway on the highway, and it was held that the grant was void, and that the tramway was a nuisance, the court declaring that such a grant could not be made without legislative authority. The authority must be granted by the Legislaiure directly or through the authorized action of the municipality. (Elliott, Section 739.)

It is generally conceded that country roads cannot be used for such purpose, even by legislative consent, without compensation to the adjoining land owners. (Elliott, Section 455.)

Any legislative permission to use public roads for such purposes would be subject to the rights of the adjoining land owners in the premises. The right could not be exercised under the permission, unless the owners should have given their voluntary consent or their forced legal consent had been obtained under expropriation proceedings. (Tilton vs. Railroad, 35 Ann. 1047.)

A land owner has the right to resist the unauthorized diversion of a country road, over his property, to any other than its usual and legitimate use. Elliot, Section 442; Dudley vs. Tilton, 14 Ann. 286; Tilton vs. New Orleans City Railroad Company, 35 Ann. 1063.

Eor the reasons assigned, it is ordered, adjudged and decreed, that the judgment appealed from be, and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed, that the defendant, F. F. Myles, is not authorized, under the ordinance or resolution adopted at the meeting of the police jury of November, 1900, to construct, own and operate a line of railways as therein authorized, and he is hereby enjoined from constructing or operating said line of railway under said ordinance or resolution. The injunction to that effect, which issued herein, on plaintiff’s prayer, being hereby reinstated.

Monroe, J. I concur in the decree.


author: Blanchard, J.

text:
    No. 13,734.
    Charles W. Hope, et al. vs. City of New Orleans, et als.
    Syllabus.
    1. Article 319 of the Constitution of 1898 is modified by the terms of the succeeding article (320), and is limited and controlled by the exceptions established by the latter article.
    2. It was competent for the Legislature to create a Board of Civil Service Commissioners for the City of New Orleans and to prescribe as members thereof the Mayor, the Treasurer and the Comptroller, and two citizens to be ap pointed by the Mayor by and with the advice and consent of the Council.
    3. Everything pertaining to the civil service is germane to the subject with which the act deals and is .embraced within the scope of its object.

    4. To give the heads of the several departments of the city government the right of selection, to fill vacancies in the places under them, from a list of persons rendered eligible by the fact that in the examination they secured ratings as high as 70 per cent, and over does not violate the Fourteenth Amendment of the Constitution of the United States.
    APPEAL from the Civil District Court, Parish of Orleans — Si. Paul, J.

      George J. Untereiner, for Plaintiffs, Appellants.

      Arthur Me Guirk, Assistant City Attorney, for Defendants, Appellees.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiffs, as citizens and tax-payers of the City of New Orleans, bring- this action contesting the legality of appointments in the public service made by the. Administrator of Public Improvements, the Administrator of Police and Public Buildings and the Treasurer of the City, and enjoining the Comptroller of the City from warranting for, and the Treasurer from paying, the salaries of the officials and employees so appointed.

It is averred that the appointments objected to were made by the officers mentioned in virtue of the pretended authority of Act 89 of 1900 entitled “An Act to provide a civil service for the City of New Orleans, to repeal all acts inconsistent or in conflict therewith and especially Sections 38 to 67 inclusive, and Section 110 of Act 45 of 1896.”

The contention is that this act is unconstitutional and void, and, therefore, does not serve as sufficient basis for the tenure of office of the officials and employees the payment of whose salaries is sought to be restrained.

The grounds of the alleged unconstitutionality of the act are:—

1st. That it is repugnant to and contravenes the provisions of Articles 319 and 320 of the State Constitution in this, that it creates a board in a manner prohibited by said articles.
2nd. That it is repugnant to and contravenes the provisions of Article 50 of the Constitution in this, that it is a local and special act and was enacted without previous notice by publication of the intention to apply for its passage.
3rd. That it contravenes the provisions of the fifth section of Article 325 of the Constitution in this, that it pretends to legislate the Board of Civil Service Commissioners appointed under the Act 45. of 1896 out of office.
4th. That it is repugnant to Article 31 of the Constitution, in that the said act contains more than one object.
5th. That it indirectly attempts to remove the Board of Civil Service Commissioners appointed under Act 45 of 1896 in violation of Article 222 of the Constitution, and in a manner otherwise than that provided by Act 45 of 1896.
6th. That its provisions are repugnant to the Fourteenth Amendment of the Constitution of the United States in this, that it is unequal in its operation, denying priority of right of appointment to persons receiving the highest percentage in civil service examinations, and vesting arbitrary discretion in the heads of departments to select appointees from the list of those making a certain rating in the examinations, to-wit, seventy per cent, or more out of a possible one hundred per cent. It is claimed that this denies to applicants the equal protection of the law.

The defense is that the act attacked is a constitutional and valid statute and a sufficient warrant for the appointments to office made by the heads of the departments of the city government heretofore mentioned.

There was judgment below rejecting the demands of the plaintiffs and they prosecute this appeal.

The second, third and fifth grounds of attack on the constitutionality of the act underwent consideration in State ex rel. Fortier et al. vs. Capdeveille et als., 104 La. 566, and were there determined adversely to the contention of plaintiffs herein.

The court is not persuaded that there was error in that judgment.

I.

Does the act in question contravene the provisions of Articles 319 and 320 of the Constitution, as is the first contention of plaintiffs ?

We think not. The first of these articles provides that the electors of the City of New Orleans shall have the right to choose the public officers who shall be charged with the exercise of the police power and with the administration of the affairs of the corporation in whole or in part.

This declaration, however, is modified by the terms of the succeeding article (320) and is limited and controlled by the exceptions established by the latter article.

Thus, we find that city boards or commissions may be created or established the members of which are made elective by the Council, or who may be appointed by the Mayor with the consent of the Council. Also that authority is reserved to the General Assembly to create boards or commissions whose power shall extend in and beyond the Parish of Orleans, provided that at least two-thirds of the members thereof shall be from the City of New Orleans and selected by the people, or elected by the Council, or appointed by the Mayor.

Here was warrant for the Legislature to create the Board of Civil Service Commissioners provided for by Act 89 of 1900. All of the members of this board are from the City of New Orleans, three of them were selected by the people to the office of Mayor, Treasurer and Comptroller, and by the terms of Act 89 became merely ex officio members of the Civil Service Commission, and the remaining two members provided for by the act were appointed by the Mayor as the act directs, by and with the advice and consent of the Council.

We do not find in this that repugnance to Articles 319 and 320 of the Constitution for which plaintiffs contend.

In making the Mayor, Treasurer and Comptroller ex officio members of the board, the act was merely prescribing for these officials additional duties to perform- — something within the province of the Legislature to do.

It was, indeed, the addition of the two citizen members, not holding city office, which gave to this creation the character of a “Board,” and these two members were directed to be appointed by the Mayor by and with the advice and consent of the Council — just as the Constitution authorizes.

II.

Does Act 89 contravene the provisions of Article 31 of the Constitution, as is the fourth contention of plaintiffs ?

Article 31 declares that every law enacted by the General Assembly shall embrace but one object, and that shall be expressed in its title.

Does the act here involved embrace more than one object? We must hold not.

The act deals with the civil service of the city. That is Us subject, and its object is to provide rules and regulations for the service. This includes classifying the offices and places of employment, prescribing who are eligible to appointment, how and in what manner they- may be appointed, promoted, suspended or discharged. It embraces, too, within its scope rules of conduct for those employed- — what may or may not work a forfeiture of their positions or be cause for removal or dismissal.

It is something more than a mere system of making appointments in the executive branch of the public service of the city. It includes the regulation of the service. The title of the act is “to provide a civil service for the City of New Orleans”- — not merely to inaugurate civil service reform.

Civil service, in its enlarged sense, means all service rendered to and paid for by the State, or nation, or by political subdivisions thereof, other than that pertaining to naval or military affairs. Civil service reform is defined by the lexicographers to be the substitution of business principles and methods for the spoils system in the conduct of the civil service, especially in the matter of appointments.

Everything pertaining to the civil service is germane to the subject with which the act under discussion deals and is embraced within the scope of its object. When, therefore, the Legislature embodied in the act the repeal of Section 110 of the present city charter it did not inject into, the act another object.

That section is to the effect that no officer or employee of .the city shall be a member of or delegate to any political convention, and comes clearly within the regulation of the civil service. Consequently, it came within the scope of the one object of Act 89 to reaffirm it or repeal it.

ILL

Is the act repugnant to the Fourteenth Amendment of the Constitution of the United States, as is the last contention of plaintiffs? Clearly not.

It was competent for the Legislature, had it seen fit, to have repealed entirely the civil service law as embodied in the present charter of the city, and to have substituted no other system of civil service reform in its stead. This would have left the filling of the offices and positions in the several departments of the city government to the heads of such departments, giving them a free hand in respect thereto. This was the case formerly.

Now, if the Legislature could abolish entirely the system as it existed at the time of the enactment of Act 89, it follows, as a matter of course, that it could modify the system, and that is what it did do in Act 89.

Instead of saying to the heads of the departments of the city government ‘you may appoint whom you please to the several positions under you, ’ the act says to them, ‘you' shall appoint no one to a position under you unless he passes the civil service examination herein provided for and makes a rating as high as 70 per cent. But from the list of eligibles composed of those rating 70 per cent, and upward you are at liberty to make your own selection.’

This in no wise is a denial of anybody’s right of appointment, nor is it unequal in its operation. It is not subject to the charge of discrimination for it does not deny to any the equal protection of the law.

Judgment affirmed.


text:
    No. 13,948.
    Mayor and City Council of Monroe vs. D. A. Johnson, Sheriff, et al.
    Syllabus.
    1. The power to improve its streets being vested in a municipality, the corporation may, unless restricted by statute, adopt any one or more of several methods of effecting the improvement. For instance, where graveling the streets is determined on, it could let the work by contract, or it could purchase the gravel and hire conveyances and teams for its delivery and distribution, or it could purchase a gravel pit and an outfit for the taking out and transportation of the gravel.
    2. Where the latter course is resorted to, the land where the gravel pit is, together with the plant and outfit needed for working and operating it, is property which, while not essential to the existence of the corporation, is necessary for. the useful and proper exercise of one of its functions.
    3. Such property so acquired and used is not subject to seizure at the hands of the judgment creditors of the corporation.
    4. Whether or not property held as public property is necessary for the public use is a political rather than a judicial question.
    APPEAL from, the Sixth Judicial District, Parish of Ouachita— Hall, J.

      Stubbs & Bussell, for Plaintiff, Appellee.

      John M. Munholland, for the J. G. Wagner Company, Defendant,
   The opinion of the court was delivered by

Blanchard, J.

The J. G. Wagner Company, a judgment creditor of the City of Monroe, caused execution to issue and under the writ the sheriff seized a tract of land containing eighty acres belonging to the debtor, and also fourteen head of mules, two horses, eight wagons and eight sets of harness.

Whereupon, the City of Monroe sued out a writ of injunction to restrain the sale of the property.

The allegation is made that the land contains a bed of gravel and was bought by the city for the sole purpose of obtaining material to gravel and improve its streets; also that the mules, horses, harness and wagons seized were acquired by the city for the sole purpose of hauling the gravel from the pit to the streets and distributing the same on them.

It is further averred that the land and the other property mentioned have been used, since the city’s acquisition thereof, solely for the purposes named, and that by means thereof useful and valuable improvements have been made on the streets.

It is represented that the expense of buying the property, as well as the care and maintenance of the mules and horses, was defrayed by the city out of a fund realized from the sale of an issue of forty thousand dollars street improvement bonds put upon the market under the authority of law.

The contention of the plaintiff is that the property seized, both real and personal, is public property, acquired and held and exercised for the public use, and, therefore, is not subject to seizure and sale in satisfaction of an ordinary judgment against the city.

The defense is that the property seized is neither essential nor necessary to the conduct of the affairs of the municipal corporation and, hence, is liable to seizure for its debts.

The judgment of the court a qua sustained plaintiff’s contention and defendant, the J. G. Wagner Company, prosecutes this appeal.

Ruling — The proof appears to sustain the essential allegations of the plaintiff’s petition.

The streets of the City of Monroe are under the control and regulation of the City Council. Their improvement is within the scope of the powers granted by the charter.

It was, therefore, competent for the Council to take steps to improve them, and to this end, to devise the ways and means therefor, and to determine the method and manner in which the work should be done.

In this instance the Council decided to gravel certain streets.

It could have let the work by contract, or it could have purchased the gravel and hired conveyances and teams for its delivery and distribution, or it could do as it did do: — purchase a gravel pit and an outfit of wagons and teams for hauling the gravel.

Either method employed would have been in execution of a public purpose and, therefore, legitimate.

The land and the outfit needed for opening the gravel pit on it, for getting out the gravel and for hauling and distributing it on the streets, is property which, while not essential to the existence of the corporation, is necessary to the useful and proper exercise of its functions, and to deprive the corporation of the same would be to hinder it in one of the functions contemplated by its charter, to-wit: — the care and improvement of the streets of the city.

New Orleans vs. Ins. Co., 23 Ann. 61.

Such property so acquired, dedicated and used is not subject to seizure at the hands of the judgment creditors of the city.

Klein vs. City of New Orleans, 99 U. S. 149; Merriwether vs. Garrett, 102 U. S. 472, 518, 525.

Whether or not property held as public property is necessary for the public use is a political rather than a judicial question.

Pickett vs. Brown, 18 La. Ann. 562; Police Jury vs. Foulhouze, 30 La. Ann. 67.

Judgment affirmed.


author: Breaux, J.

text:
    No. 14,206.
    State of Louisiana vs. Harry Barranger.
    Syllabus.
    On Motion to Dismiss the Appeal.
    The delay for filing the transcript of appeal expired on the second of November, 1901. The transcript was filed on the 8th of November. The transcript of appeal must be filed within ten days after the order has been granted. Failure to file within that time is fatal to the appeal.
    Prior to faking out an order of appeal, the delay begins as relates to a defendant from the day the final sentence is passed upon the accused. As relates to the State, it begins to run from the date of final action in the District Court resulting in the dismissal of the prosecution.
    The statute provides that time within which to take an appeal begins to run from the date of sentence. The sentence, in so far as the State is concerned, is construed to mean the final action quashing the indictment or in some other way putting an end to the prosecution in the tribunal of the first instance. In either view, the record of appeal was not filed in time.
    APPEAL from the Twentieth Judicial District, Parish of Terrebonne. — Caillouet, J.

      Walter Guión, Attorney General, and W. P. Martin, District Attorney (Lewis Guión, of Counsel), for Plaintiff, Appellant.

      Winchester & Gagnee, for Defendant, Appellee.
   The opinion of the court was delivered by

Breaux, J.

Bribery is the crime for which the defendant was in-dieted on the 11th day of October, 1901. The indictment charged that while serving as assistant marshal of the town of Houma, he had unlawfully received the sum of twenty-five dollars as a bribe as an inducement to him to perform the duties of his office with partiality and favor.

A few days after he had been indicted, through his counsel, he interposed a demurrer to the prosecution, on the ground that the “Statutes of 1878 and 1890, defining and punishing the crime of bribery and all other laws on said subject, under which he is prosecuted, have been annulled and repealed by the Constitution of 1898, Article 183.”

He interposed a motion to quash, on the ground that the indictment did not disclose under what statute he was being prosecuted; and, furthermore, that the indictment was defective. That the indictment failed to inform him what duty of his office, as assistant marshal, he was charged with having been bribed to perform with partiality and favor. The judge of the District Court overruled the motion to quash, but sustained the demurrer.

The State, on the 23rd day of October, 1901, applied for an appeal from the court’s ruling sustaining the demurrer, and seeks to have the dismissal of the case in the District Court recalled and set aside, and the prosecution reinstated. The appeal was granted on the day of the application for an appeal. Before this court the defendant, filed a motion to dismiss the appeal.

On Motion to Dismiss.

The record of appeal was filed in this court on the 8th of November, 1901. Defendant, in his motion to dismiss the appeal, sets out that the delay for the filing of the record of appeal in the Supreme Court elapsed on the 2nd of November, 1901; that appeals in criminal cases are returnable to the appellate court “within ten days from the order of appeal;” and that the statute invoked, viz: Section 2 of Act No. 108 of 1898, is as controlling as relates to the State as it is as relates to the defendant.

The prosecuting officers for the State contend that this act of the Legislature does not limit the time within which the State may appeal; that Act 108 of 1898 as well as Act No. 30 of 1878, of which the former was intended as an amendment, provides solely for appeals granted to the accused in criminal cases, and in no way affects' the State. This contention on the part of the State is based upon the fact that Section 1 of Act No. 30 of 1878, sets out that the motion for appeal (except in the first judicial district) must be filed during the term at which sentence shall have been pronounced, and in the first judicial district within ten days after sentence. Section 4 makes appeals returnable to this court within ten days after granting the order of appeal. And in this connection it is pointed out that the amending act, No. 108 of 1898, Section 1, provides for appeals to this court in criminal eases “within three days after the sentence shall have been pronounced,” and all such appeals shall be returnable within ten days from the date of the order of appeal.

The State presses upon our attention that' these two acts relate exclusively to appeals taken by the accused, and not by the State, for the reason that both of them fix the delays within which to appeal after sentence; that all appeals must be taken after sentence. From this, the prosecuting officers urge that there is no case imaginable in which the State may appeal after sentence of the defendant, or where she would have an interest to appeal after sentence; and that, inasmuch as the acts cited above provide only for appeals in criminal cases, after sentence, it follows that it was intended to provide for appeals granted to the accused, and not to appeals granted to the State.

To the suggestion that the State is not entitled to an appeal, unless the authority is to be found in the Acts of 1878 and 1898, the State assumes that her right of appeal is guaranteed by the Constitution, and that no act of the Legislature, as in the ease of a defendant, has provided a delay within which the State must apply for an appeal in criminal eases, or within which the same, when granted, should be filed in the appellate court.

We are unable to concur in these views. We have not found it possible to arrive at the conclusion that the State has, as to time, an unlimited right of appeal; although we are not, in the least, inclined by construction to curtail the State’s right to be heard on appeal.

True, as contended on the part of the State, that her right of appeal is granted by the Constitution, but we think that a time has been fixed within which appeals by the State in such cases should be applied for and filed in the Supreme Court.

We take up in the first place, for our decision, the question of time within which the record should be filed, after the order of appeal has been granted. It does not, in our View, admit of any question that the record must be filed within ten days. The language of the act is quite plain, “within ten days after granting the order of appeal.” We have seen that the order of appeal was granted on the 23rd of October, and the record was only filed on the 8th 'of November. We have seen, also, that the statute fixes a time within which the appeal must be brought up after the order of appeal has been signed. This, we think, disposes of the issues presented by the State, for obviously, the appeal was clearly not within this limit after the order of appeal had been granted.

But, it is insisted, that appeals are provided'for only after sentence, and that as there is no case in which the State may appeal aftpr sentence, the delays fixed by the Legislature, after the order of appeal has been granted, has no application. The appeal is to be moved for in open court during the term at which the accused was found guilty or the prosecution was dismissed for informality found by the district judge. This provision embraces both the delay for appeal by defendant and the State.

Granted that the words “after sentence” of the statute can have no application to the State, we have discovered no good reason why she should not be held under the terms of the law to' take her appeal in open court before the court’s term has reached its close. As to that matter, it does appear to us that after final sentence dismissing the prosecution in the District Court the delay for taking the appeal begins to run as to the State as it begins to run after sentence, another final action as it relates to the defendant. The word “sentence” as relates to the State may have a broader meaning than it usually has. Sentenia is translated by Wainsworth in his Latin Dictionary, “judgment.” Sohm, in his book, entitled “Institutes of the Eoman Law,” in several passages of the work, refers to “sentence” as synonymous with “judgment.” Bouvier defines sentence: A judgment or final declaration made by a judge in a case.” Under the definitions the State has no good cause of complaint.

We have not found it possible, from our point of view, to sustain the appeal.

It is, therefore, ordered, adjudged, and decreed, that the appeal taken in this ease is dismissed.