author: Todd, J.

text:
    No. 8165.
    The State of Louisiana vs. Vicomte Walsh de Serrant.
    It is-enough that the minutes of the court show that the Information was filed witli the consent of the court; it needs not appear on the face of the Information itself.
    When the accused has not requested the court to assign Counsel to defend him, under the statute, he cannot complain that none was assigned to him, and make it the ground of a new trial. s
    APPEAL from the Criminal District' Court for the parish of Orleans. Luzenburg, J.

      J. O. Egan, Attorney General, for the State, Appellee.

      H. N. Ogden, .by appointment of the Supreme Court, for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant was tried on an information against him for grand larceny, was convicted and sentenced to five years’ imprisonment at hard labor in the State penitentiary, and has appealed from such sentence.

His counsel has filed in this Court an assignment of errors, upon which he relies for a reversal of the sentence. The assignment is as follows :

1. That the information does not appear on its face to have been filed with leave of the court.

The information on the face of it shows and states: “ That the District Attorney for the parish of .Orleans * * * * in proper person comes into the Criminal District Court for the parish of Orleans, and gives the said court here to understand and be informed,” &c. The information was, thereupon, filed, on the same day as presented, 10th January.

On the next day (11th) the following appears from the minutes ;

“ Information for grand larceny having been filed in this case by the assistant district attorney with the consent of ttye court, and the said ease having been apportioned by lot to section B ” of this court,” &c. This was sufficient to show that it was filed with leave of the court. It is not sacramental that this leave should appear totidem verbis on the face of the information itself.
2. That said information does not charge any crime, as it fails to state that the articles charged to have been taken and carried away were so taken with the felonious intent to convert to his (the taker’s) own use, and make them his own property, without the consent of the owner.”

The information, after describing the property and setting forth the ownership thereof, proceeds to charge that the same then and there being found, the defendant feloniously did take, steal and carry away, contrary to the form of the statute,” &c.

This was sufficient, and the other averments mentioned in the assignment were wholly unnecessary. ,

3. The assignment further avers: “ That the accused was a foreigner, unable to speak or understand the language in which his trial was conducted, and that the court below failed and neglected to provide counsel to assist in his defence ; that, therefore, he had no proper trial.”

Upon this point, we find from the record that the accused at one stage of the proceedings was represented by counsel, and that the case was assigned for trial on a day stated, on motion of such counsel, though it does not appear he was defended by such counsel on the trial. It is, however, shown that, on the day fixed for trial, the accused announced himself ready ; that, when the information and plea were read, an'interpreter was assigned to him, and that the witnesses called by the State were cross-examined by the accused. It does not appear that any request was made by the acbused, of the court, for the appointment of counsel to him, and it is only upon such request that the judge is required to make the appointment. The statute on this subject (Sec. 992 R. S.) reads: “ Every person shall be allowed to make his full defence by counsel learned in the law, and the court before whom he shall be tried shall immediately, on his request, assign to him such counsel as he shall desire.”

We have closely scrutinized the proceedings pertaining to this prosecution, and we cannot find that a single right or privilege guaranteed to an accused by law was denied the defendant, but, on the contrary, that every means of defence in the power of the court was afforded him, and we find no error or irregularity in any part of the proceedings.

It is, therefore, ordered that the sentence and judgment appealed from be affirmed.


source: Caselaw Access Project

author: Poché, J. Todd, J.

license: Public Domain

text:
    No. 8267.
    The State of Louisiana vs. Mrs. Susan Baum.
    Act hTo. 84 of the Legislature of 1878, (authorizing police juries to prohibit the sale of liquors on Sundays, in the various parishes of the State), is violative oí Article 114 of the Constitution of 1868, because all the objects of the law are not expressed in its title. Said Act is, therefore, unconstitutional, null and void. Decision in 31 An., 663, overruled.
    The same law is also invalid and null, for delegating to the police juries, in the manner and form resorted to, the authority of the General Assembly to legislate, and that of the State to prosecute for the commission of the offence so provided for.
    APPEAL from the Seventeenth Judicial District Court, parish of East • Baton Rouge. Sherburne, J.
    <?. W. Buchner, District Attorney, and J. G. Egan, Attorney General, for the State, Plaintiff and Appellee.
    J. H. Lamon and Herron & Beale, for Defendant and Appellant:
    First — The Act Bo. 84, of 1878, undertaking to regulate the observance of the Christian Sabbath, is violative of the Constitutions of Louisiana of 1868 and 1879, and of the treaty of cession of Louisiana. Constitution 1868, Art. 12; 1879, Art. 4; Cooley, Constitutional Limitations, 476.
    Second — The title of the Act Bo. 84, Acts of 1878, does not express the objects embraced in the body of the act, and is, consequently, unconstitutional. Cons. 1868, Art. 114; Cons. 1879, Art. 29.
    Third — The Act of 1878, Bo. 84, the Sunday law, if a general law, does not repeal Sec. 0, Act of 1878, incorporation of Baton Bouge, a special law. The inconsistent provisions of a general law do not repeal the provisions of a special law. 13 An. 458; 12 An. 49?, 805.

      Eourth — The General Assembly is without power to delegate its legislative power to a police jury in the manner in which it is done in the Act of 1878, No. 84. Cons. 1879, Arts. 14 and 15; Cooley, Cons. Lira. 141.
    Eifth — The Legislature being prohibited from enacting local laws, cannot indirectly do so, as done in the Act of 1878, No. 84. Cons. 1879, Arts. 46 and 48.
    Sixth — Where an Act is unconstitutional under the Constitution of 1879, it is destroyed thereby, although not unconstitutional under the Constitution of 1868. Constitution 1879, Art. 258. .
    Seventh — The ordinance of the police jury of East Baton Rouge, prohibiting the “keeping open establishments on Sunday, for the purpose of selling,” is not authorized by, nor responsive to, the enabling Act of 1878, No. 84, which authorizes police juries “to make such "regulations as they may deem proper in regard to the sale, barter, or exchange of intoxicating liquors or merchandise on Sunday, and to totally prohibit the same on Sunday, if in their judgment necessary.”
    Eighth — An indictment for statutory offence must describe the offence in the words of the statute, or words certain and equivalent. 5 An. 324. Nothing can be taken by intendment. 10 An. 191.
    Ninth — An attempt to commit an offence is not punishable, unless there is a statute making it penal. Under our system, we have no offences except those so declared by statutes. 7 Rob. 252, and many others.
   The opinion o£ the Court was delivered by

Poché, J.

This is a prosecution, in the name of the State, and by indictment, for the violation of an ordinance of the police jury of East Baton Rouge, prohibiting the opening on Sundays of places of business for the sale, barter or exchange of intoxicating liquors and all kinds of merchandise.

In a motion to quash the indictment, and in a motion in arrest of judgment, the defendant brings to our consideration numerous defences, but, under the view which we take of the case, we shall notice only the following:

1st. That Act No. 84, approved March 13,1878, under the sanction of which the ordinance of the police jury was framed, was violative of Art. 114 of the Constitution of 1868, then in force, in this, that said act did not express all its objects in its title, which reads as follows:

“ An act to authorize police j.uries to make such regulations as they may deem proper to prohibit or regulate the sale, barter or exchange of intoxicating liquors or merchandise on Sundays.”

After conferring the powers enumerated in the title, the act contains the following provision:

“ Violations of all ordinances, duly passed and promulgated, according to the provisions of this act, shall be considered misdemeanors, and the penalties fixed in said ordinances for violations thereof, shall be enforced by indictment or information in any court of competent jurisdiction.”

The inquiry suggested by the objection is, therefore, which or how many objects are expressed in the' title of the act, and, in the second place, whether more objects are contained in the body of the act than are expressed in its title ?

The language of the title is very plain and unambiguous, and clearly indicates but one object, which is to authorize police juries to make all regulations which they may think proper to regulate or prohibit the sale, barter or exchange of intoxicating liquors or merchandise on Sundays. Nothing in the title indicates in the slightest degree the remotest intention in the law-maker’s mind to provide’for a special or a new mode of enforcing obedience to such ordinances as might be adopted by the several police juries, in the State, under the powers conferred by the act. No one, reading the title of this act, could infer or imagine from its language that the body of the act contained any provision for the prosecution of violators .of the ordinances which, in its title, the act purports to authorize and to sanction, and which may, in the future, be drafted by police juries under its authority.

We take it as an undeniable proposition, that any one, familiar with the peculiar system of our laws in this State, would conclude, on reading the title of this act, and seeing therein no expression indicating an intention to enact a mode of enforcing the ordinances which the title contemplates, that the power of police juries to enforce obedience to such ordinances would be derived from their general powers as conferred under the then existing laws, and notably, from Sec. 2743 of the Revised Statutes of 1870, granting to police juries (paragraph 7) the power “to determine the quantum of fines against all such as shall transgress their regulations which power has been continuously exercised since the year 1813, by suits instituted by police juries in their own name, through the proper officer, either of their own selection, or, as the case is at present, by a State officer, the District Attorney, to whom that duty is specially and exclusively entrusted under the law.

But, keeping in view the object as expressed in the title of this act, would not such a reader be utterly surprised, on reading through the act, to find in its body an enactment making the violation of any such future ordinance of a police jury a misdemeanor under the State laws, and providing for a mode of prosecution by information or indictment, or, in other words, in the name and under the authority of the State ? Does not such provision contain an entirely separate and distinct object from that which is expressed in the title ?

The object, as thus expressed, is to authorize and empower police juries to do certain things. The provision quoted defines the violation of the ordinance, the adoption of which is thus authorized, as a penal offence, and authorizes prosecution therefor, in the name and under the authority of the State.

It is conceded that no law of the State prohibits the sale, barter or exchange of intoxicating liquors or merchandise on Sundays; the only reference to this subject, to be found either in the Constitution or laws of the State, is in the act now under consideration, and all that the act purports in its title to do, is to authorize police juries to act in the subject matter. And, yet, in the body of the act, we find the power of the State pledged to the enforcement, by prosecution in its name and under its authority, of any and all ordinances, which may be enacted by police juries, either to regulate or to prohibit the sale, barter or exchange of intoxicating liquors or merchandise on Sundays, and this latter object is not expressed in the title. It would, indeed, be difficult to conceive or frame a statute more flagrantly violative of the constitutional requirement, under which every law must express its object or objects in its title.

In a recent case, the Succession of Patrick Irwin, 33 An. 63, we had occasion to examine and review thoroughly, and at great length, the practical application of the constitutional requirement embodied in Art. 114 of the Constitution of 1868; and to expound the reason and the philosophy of the rule, which has been the subject of study, comment and encomium of many distinguished writers on law. And we showed, in that opinion, how easy it was to violate with impunity this constitutional restriction, and that, consequently, our reports teemed with cases growing out of legislative encroachments on those constitutionally forbidden grounds.

A reference to those reported cases, fails to show a more glaring violation of the constitutional inhibition than is presented in the statute now under consideration.

A case somewhat similar is found in 26 An. 142, John I. Adams vs. Asa Webster. In that case, the Court unhesitatingly struck with nullity section 8, of Act No. 47 of 1873, which was entitled “ An act to enforce the payment of taxes due the State, providing for the seizure and sale of the property of delinquent taxpayers, and regulating the proceedings against them and against their property and tenants.” Among other astounding remedies for the enforcement of the collection of taxes, section 8 contained a provision under which the delinquent taxpayer forfeited his right to be a witness in his own behalf. The Court properly held that this was establishing a new rule of evidence, the object of which was not expressed in the title of the act, and that the provision should, therefore, be considered as unwritten or unconstitutional. In the statute now under consideration, the title of which purports to authorize the police juries to adopt Sunday laws, we find in the act two other distinct and separate objects not expressed in the title, to wit: one defining a new penal statute, and the other providing for a new mode of prosecuting violators of certain police jury ordinances.

We must conclude that those two provisions of Act 84 of 1878, being not expressed in the title of the act, are unconstitutional, null and void, and could not be the lawful authority for the indictment in this case, and that the prosecution for such an offence in the name of the State was illegal.

We are aware that in the case of the State vs. Bott, 31 An. 663, our immediate predecessors, disposing of a similar objection to the identical ordinance out of which this ease sprung, reached a different conclusion, and maintained the constitutionality of the very provision which' we feel compelled to annihilate. But with all the respect which we entertain, and the deference which we have never failed to show, for the opinions of our learned brothers of that distinguished Bench, we are reluctantly constrained to differ with them on this point, and to refuse to follow them, in the disposition they made of this important constitutional question, in the following- language, which we quote from their decision: “ The title of the act is sufficiently comprehensive. It indicates very clearly its whole purp'ose. No one after reading it could fail to be informed of the object of the legislation, and that is the intent of the constitutional provision upon that subject.”

It is evident to our minds that the point had not been pressed by counsel, and did not receive the very serious consideration of the Court.

In our researches and study on this question, we were mainly guided by a wise and salutary principle universally recognized, that laws in derogation of common right must be strictly construed and cannot be extended beyond their clear and precise import.

Of this character, are, in our opinion, all laws seeking to restrain persons in their inherent and constitutional right to pursue, on any day, avocations or trades which are not wrong in themselves, or not forbidden on other days; and of that class we consider all laws tending in the least, in their import, to infringe upon the salutary doctrine of the complete separation of church -and state; a doctrine which has dictated the brightest page of American history, and has always been the distinguishing feature of American freedom.

We do not wish to be understood as saying that the State Legislature is powerless to enact a general State Sunday law, which has not yet been attempted in this State, and on which, therefore, we are not called upon, and would not be justified, to express an opinion.

2d. Another objection to this act, urged by defendant, in charging that the General Assembly is without power to delegate its legislation to a police jury, in the manner and form resorted to therein, is entitled to serious consideration, and would of itself be fatal to the validity of that statute.

While the Legislature fails to prohibit, in the name of the State, the sale, etc., of liquors or merchandise on Sundays, it grants full power so to do to police juries in their parishes; and proffers the power of the State to champion the ordinances to that end, which may be adopted by any police jury. In other words, the Legislature engrafts, a penal statute with a suspensive condition, to wit: the passage of certain ordinances by the various police juries of the State, and thus, under its practical operation, the State in its name, at the bidding of the police jury of. East Baton Rouge, prosecutes a resident of that parish for the performance of an act which is not forbidden in the parish of St. James, wherein the identical resident of East Baton Rouge can do the same act with perfect freedom and with absolute immunity from any criminal prosecution in the premises. Cooley, Const. Lim., p. 141.

We might multiply reasons in support of that point, but we consider that we have already given sufficient reasons to justify our conclusion.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and that the indictment found against the defendant be quashed and set aside, and that the defendant be discharged, at plaintiff’s costs.

Dissenting Opinion.

Todd, J.

I cannot concur in the decree rendered in this case, and, as briefly as the subject will admit, I will give the reasons for my dissent therefrom. In doing so, I shall coniine myself to the consideration of that feature of the act in question which relates to the sale of intoxicating liquors on Sunday, as that presents the sole issue in this case.

The reasoning of the majority opinion, marked as it is by ingenuity, force and vigor, has failed to convince me that the statute in question contravenes the provision of the Constitution of 1868 bearing on the title to the act, and which the opinion, at the outset, proposed only to consider as alone sufficient to justify the decree rendered.

Another objection to the act was, however, found and discussed and declared equally fatal to its validity; and this second objection I will also notice in its. turn.

1. The title of the act in question, by its terms authorized and covered the absolute prohibition of the sale of intoxicating liquors on Sunday, provided by a section of the act. The constitutional objection urged, is to that part of the act which declares the penalty and provides for the punishment of violations of the ordinances to enforce this prohibition, by indictment or information in the name of the State, contending that such mode of enforcing the penalty is not expressed in the title of the act, in conformity to the constitutional requirement that “ all the objects of an act must be expressed in the title.”

To my mind, it seems clear that the act had but one object, and that was to regulate or prohibit the sale of intoxicating liquors on, Sunday, in such parishes or communities as might desire the restriction. In other words, it was designed to stop the sale of whisky, etc., on Sunday, in any parishes where public sentiment demanded it. To confound the object of a law with the measures for attaining or securing that object, seems to me a confusion of terms, confounding the law itself, its spirit and essence, with the mere sanction of the law. It is to argue that the intent of the Legislature in passing the act was not to regulate or prohibit the sale of whisky on Sunday, but its object was to create or declare a new offence and get offenders punished for committing it.

It is suggested in the opinion of the Court, that a reader of the title of the act would be surprised to find in the body of it the clause in question. On the contrary, it seems more reasonable to me to suppose that such reader, appreciating fully the purpose of the act, disclosed in the title, and the difficulty of fully consummating that purpose, and the power required to that end, would rather be surprised, should he fail to discover in an act of this kind, under a title so broad and comprehensive, any adequate provision for enforcing it, or punishing its violation; and would be alike disappointed, should he find any less efficient measure to carry out the object of the act than that contained in this. He would, in such event, very naturally conclude that the law-makers of the State had indulged in a very useless and fruitless piece of legislation.

To me it appears that the penalty declared,.and mode of punishment provided, was not only strictly germane to the object expressed, but, in fact, an essential adjunct to such object, without which that object would be meaningless and lifeless. We are supported in this view of the subject by the decision of our predecessors, Chief Justice Manning being the organ of an unanimous Court, where this precise question was at issue, on an appeal from a judgment rendered in a similar prosecution, under the same law and ordinance, in the same parish, and where the identical objection toticlem verbis was made to the constitutionality of the act; and though the language of that decision was quoted in the majority opinion, it is so pointed, comprehensive and confirmatory of my views, that I reproduce it here, as follows:

“The title of the act is sufficiently comprehensive. It indicates very clearly its whole purpose. No one after reading it could fail to be informed of the object of the legislation, and that is the intent of the constitutional provision upon that subject.” (The italics are mine). State vs. Bott, 31 An. 663. To that opinion I adhere.

The construction and meaning of the clause in question, as there given, is in strict conformity to and fortified by frequent decisions of this Court. 9 An. 329, 350; 11 An. 54, 145, 671; 13 An. 301, 399; 15 An. 297; 26 An. 675, 708; 27 An. 415.

2. Another objection to the law, and which is also pronounced fatal to it, is “ that the General Assembly was without power to delegate its legislative power to a police jury in the manner and form resorted to 1 herein.”

I regard this objection as more clearly untenable than the other.

All powers that are wielded by the police juries of the parishes, are delegated powers, that is, powers originally possessed by the State, but which, for the purposes of securing the peace, good order and well-being of communities, it has transferred or delegated to the local governments of such communities. To the extent of the powers thus conferred, the parochial authorities become the special legislatures of the parishes over which their authority respectively extends. No constitutional inhibition is cited against the delegation of such powers by the State to these minor legislative bodies, and I apprehend that none can be found. It is certain that such general delegation of powers over various matters, has been made in this State from time to time, and its legality has been so uniformly sanctioned by judicial authority as seemingly to place it beyond controversy. 12 An. 169, 554; 27 An. 710. And we believe such is the case in every State. In fact, such delegation may be justly regarded as essential to the effective police of communities, to the complete success of local self-government, under our system of State polity, the wisdom of which has been confirmed by long practical experience.

In the present instance, in consideration of the fact that the entire State might not be prepared for the “ advanced ideas ” embodied in the act in question, there was a marked propriety in this delegation of its powers, providing as it did, a local option touching the repressive measures contemplated by the statute, in order that the prohibition authorized, might be enforced in one parish, — the parish of East Baton Rouge, for instance, — where public opinion demanded it, but not in the parish of St. James, — or other parish, — where the popular sentiment might be opposed to it.

If such delegation of power by the State to the parishes is warranted when it has been made, and it is certain or probable that the power delegated cannot be successfully exercised, with their limited means and appliances, and the importance and gravity of the subject demands it, I see nothing illegal or improper in the State interposing and lending its power to render the enforcement of the delegated authority effective, and thus insure the accomplishment of the end in view. ' Otherwise, it might often happen that such grants of authority would prove vain and nugatory. I certainly see nothing in the Constitution to prohibit the State from thus “ championing ” measures originated by itself, to be inaugurated and launched by agencies created and directed by its own authority. Surely, it is a species of aid which the State has often rendered, and its constitutional right to do so has seldom, if ever, been seriously questioned. For instance, the State authorizes the parishes and other municipal corporations'to impose licenses for the sale of intoxicating liquors, and to withhold licenses under certain conditions, and declares it an offence to sell without such license, and prosecutes those thus offending, in the name of the State, by information or indictment. R. S. 1211, 1212, 1214 Again : The State has conferred on police juries full control over the making and repairing of roads, and the repair and protection of levees, and prosecutes in its own name, overseers of roads who fail to discharge their duties under the road ordinances. R. S. Secs. 3364 3381. And these prosecutions are pledged by the State in advance, and are subject to the contingencies of the commission of the offence, or “ suspended ” till such event.

We might multiply examples, but it is unnecessary, since it would be the recital of facts familiar to every one. In view, however, of these facts, and the unquestioned exercise by the State ©f the power referred to, and in the manner shown, and in the absence of any precedent against it, I cannot readily conceive how this objection is fatal to the act.

3. I am equally at a loss to understand how anything in this act can be construed to relate in any way'to the inhibition .of the Federal Constitution touching the separation of church and State; and still more so, to perceive how selling whisky on Sunday or any other day is connected with the establishment of religion, or, indeed, has anything whatever to do with the subject of religion or religious liberty.

This feature of the case presents no new question. The power to deal with the subject of the sale of intoxicating liquors, whether on Sunday or any other day, has been held to pertain to the general police power of the State, which can be wielded to accomplish the objects embraced in the statute in question. In the language of a distinguished jurist and law writer: “The police power of a State, in a comprehensive sense, embraces its system of internal regulation, by which it is sought, not only to preserve the public order and to prevent offences against the State, but also establish for the intercourse of citizen with citizen those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and insure to each the uninterrupted enjoyment of his own, so far as is reasonably consistent with a like enjoyment of rights by others.” Dillon, Oons. Lim., 572.

Another eminent judge uses this language:

“ This police power of a State extends to the protection of the lives, limbs, health, comfort and quiet of all persons ; and by this power persons and property are subject to all kinds of restraints and burdens in order to secure the general comfort, health and prosperity of the State; of the perfect right in the Legislature to do which, no question ever was, or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned.” Redfield, C. J., Thorpe vs. Rutland, 27 Vt. 149.

The right to regulate or prohibit the sale of liquors, regardless of the day, is properly held to come within the just scope of this power. Dillon 476; State vs. Bott, 31 An. 663; Fralickson vs. Mayor, 40 Ala. 725; Specht vs. Coru, 8 Penn. St. 212; Charleston vs. Benjamin, 2 Stat. 508; Bloom vs. Richards, 2 Ohio St. 387; Hudson vs. Geary, 4 R. I. 485.

A few considerations will satisfy any reasonable mind that, restricting the prohibition of a traffic in liquors to Sunday, does not necessarily imply the slightest discrimination relative to religious creeds and beliefs, or the least design to interfere with them.

It is a conceded fact that all nations possessing any degree of culture and enlightenment, by law or by custom, or both, devote one day in the week to rest, in which a general abstention from all physical labor is observed. This seems to be done in obedience to a great natural law, and is now universally regarded as a wise rule in the social economy, conducive to health and comfort, and to the preservation and prolongation of animal strength and vigor. This custom, if it be of scriptural or religious origin, is adhered to by all classes, the depraved and vicious as well as by the virtuous and good, regardless of its origin, though, as a matter of fact, the same day, Sunday, has been adopted almost universally as the weekly holiday. It naturally follows from the general idleness that characterizes this day, that it would become, without some wholesome restraint, the occasion for all the mischiefs and disorders which idleness always breeds. No one will deny that the liberal use of intoxicating liquors on that day by the crowd of idlers, composed in part of the worst classes of society, would necessarily increase the tendency to disorder and lead to turbulence, immorality and crime. Hence, on that day above all others, it was apparent to legislative wisdom that there was a necessity for the curb of the law, — the same necessity that has induced a sweeping prohibition against the sale of whisky on election days.

Look at the actual facts as they existed at the time the act in question was passed. In the rural districts of the State crowds would flock on Sundays to town and cross-road stores and groceries, composed largely of that class which had not yet learned to enjoy with sobriety and moderation their newly acquired freedom, but on the contrary, believed that t'he full fruition of that freedom and demonstration of their title to it, required a free indulgence in all those excesses that distinguished the hoodlums and rowdies of the white race. From this cause many of our country villages, once noted for peace and quiet, the very centres of virtue and refinement, were being converted on Sundays into veritable pandemoniums of vice, rowdyism and crime. Surely it was time, and the necessity was present, to an enlightened and moral — not to say Christian — people, to crush out such a monster evil. This act was intended to do so; and it is notorious that in some places its salutary operation has worked great reforms.

It is true that Sunday is observed by a large and very respectable class of citizens as a day of religious worship, and it is on account of this fact that it is sought to impart to the act in question a religious aspect, and show in it the alleged union of church and State. We cannot well see, however, that such a usage, and for a legitimate and commendable purpose, should render .the act amenable to censure, and impart a character to it fatally obnoxious. Surely, if people do go to church on that day, it is a legal right they have, and one which carries ■with it the right to go to and return from their houses of worship without being liable to be insulted and shocked by sights and sounds of drunkenness on the way, or have the services of their sanctuaries disturbed by the same. The law-maker has recognized their right to protection by punishing all disturbers of peaceable assemblies, including religious assemblies. If this can be legally done, and such offenders legally punished, I cannot see how objections can be consistently urged against the suppression by law of the causes — the closing of the very fountains themselves — -from which these disturbances would most likely flow.

For these reasons, I am constrained to dissent from the conclusions reached by the majority of the Court.


author: Levy, J.

text:
    No. 8266.
    The State of Louisiana vs. Jake Shields.
    'When the Minutes of the Court do not show that the indictment was found by the grand jury and presented in open court, the verdict and judgment must be set aside and a new trial granted to the accused.
    'This case presents a glaring instance of an imperfect and incomplete record, to the detriment of the public interest.
    It is not sacramental that the prisoner should be asked if he has anything to say, why sentence should not be pronounced; and the absence of this formality will not vitiate the proceedings.
    It is no sufficient ground for a challenge for cause, that, in answer to the question of the District Attorney, the juror said he had some prejudice against convicting on circumstantial evidence.

      APPEAL from the Seventeenth Judicial District Court, parish of East Baton Rouge. Sherburne, J.

      J. G. Egan, Attorney General, for the State, Appellee:
    Pirst — 'When an indictment which is indorsed “a true bill” and signed by tbe foreman of tbe grand jury is found in tbe record it is evident that tbe same was a finding of tbe grand jury. State vs. Brown, 32 An. 120.
    Second — In the examination oí a juror on his voir dire it is proper to ask him whether he has prejudices against convicting on circumstantial evidence.
    Third — The State has a right to recall a witness bofore closing the case.
    Fourth — That the judge failed to ask the accused “ if he had anything to say why the sentence of the court should not be pronounced on him,” is no ground for a new trial.
    Fifth — There is no assignment of errors in the record, and the one found in defendant’s brier cannot be considered as such by this Court.

      J. H. Lamon for Defendant and Appellant:
    First — In cases of felony the minutes of the Court must show—
    1. That an indictment was found and presented by a grand jury. State vs. Mason, 32 An. 1019; 30 An. 885.
    2. That the accused was asked “if he had anything to say why the sentence of the court should not be pronounced on him.” State vs. Scott, 32 An. 854.
    3. That the defendant was in court 'when the jury reported a verdict of guilty. State vs. Ford, 30 An. 311; State vs. Christian, 30 An. 367, 407.
    Second — It is not proper for the District Attorney to ask persons presented as jurors whether or not they have any prejudice against convicting on circumstantial evidence. The existence of such a prejudice is not a ground for a challenge for cause.
    Third — After the testimony for the State is closed the District Attorney cannot ask witness for the defendant questions which are not in rebuttal of the testimony offered by the defendant. State vs.' Swayze, 30 An. 1327; State vs. Thomas, 32 An. 351.
    Fourth — The finding of a verdiot of guilty by a jury is vitiated when one or more of the jury are asleep during the progress of the trial.
   The opinion o£ the Court was delivered by

Levy, J.

The apcused was indicted on the charge of murder, was tried by a jury and convicted of manslaughter, and sentenced to ten years’ imprisonment in the penitentiary. From the judgment thus sentencing him he has appealed.

Counsel for accused contend that the verdict and sentence should be set aside and the judgment reversed, on the grounds:

1st. That the minutes do not show that the indictment was found by the grand jury and presented in opten court; that the accused was asked “if he had anything to say why sentence of the court should not be pronounced on him; ” and that the defendant was in court when the jury reported their verdict of guilty.

2d. Because persons presented as j urors were challenged £or cause by the District Attorney, who, in reply to a question as to whether or not they had any prejudice against convicting on circumstantial evidence, answered that they had, and the court sustained the challenge-for cause on that ground.

3d. Because, after the testimony for the State was closed, the court-allowed the District Attorney to ask a witness questions not in rebuttal of testimony offered by the defendant.

4th. That the verdict of guilty by jury is vitiated when one or more of the jury are asleep during the progress of the trial.

1. In State vs. Tazwell, 30 An. 885, it was held: “ It is enough if it appears that the grand jury came into court and presented an indictment.”

In State vs. Mason, 32 An. 1019: “ There is no doubt that the proper proceeding is, for the grand jury after having found the bill, to come into court, in a body, and through their foreman to present the bill in open court, and non-compliance with these requirements, if established, would be fatal to the proceedings.” The court, in the last-mentioned case, re-affirmed the decision in the State vs. Onmacht, 10 An. 198, and held: “There, the entry on the minutes was, ‘The State of Louisiana vs. K. Onmacht, true bill and indictment for lying in wait and shooting with intent to commit murder;’” and it did not affirmatively appear that the grand jury appeared in court and returned the indictment. The court said this renders it sufficiently certain, that the indictment, to which the prisoner subsequently pleaded, was presented by the grand jury in open court. The clerk enters on the minutes only what is done while the court is in session, and only such proceedings as ought to appear of record. No entry would'be made on the minutes of what did not transpire in open court, and to presume it possible that the grand jury did not in a body return the indictment in open court, would be reversing directly the maxim, omnia rite acta.

These decisions refer to cases in which there were entries on the minutes referring to an indictment being found, and therefore the application is made of the maxim quoted. In the instant case the minutes contain no entry whatever going to show the finding of the indictment, and, indeed, do not show that there was any grand jury empannelled and sworn or any foreman appointed. The rules laid down in the cases cited cannot with any reason be stretched so as to supply the fatal-deficiencies in this record.

In State vs. Cosby Mason, 32 An. 1020, this Court said: “We deem it proper to say here that the imperfections and incompleteness of the criminal records presented to us, are such as greatly to embarrass us in the administration of criminal justice, and we call the attention of the judges, clerks and law officers of the State to the importance of remedying this evil.” We cannot too earnestly reiterate what was said in that case, and the present one affords so glaring an instance of imperfectness- and incompleteness of record to the detriment of' the public interests as to demand our notice, and to justify comment.

It.is the duty of the clerk, the District Attorney and the judge, to •see that the minutes of the proceedings had in open court are properly and fully entered on the records. The other points raised in the first ■objection are not tenable. It is not sacramental that the prisoner should be asked if he has anything to say why sentence should not be pro.■nounced. The record shows that the prisoner was in court when the verdict was rendered.

2. The object of the law is to select impartial jurors to try the issue between the State and the accused, and to ascertain that impartially ■considerable latitude is allowed, both to the prosecution and defence, in examinations on the voir dire. The question propounded to the juror was not in itself objectionable; the answer, however, that he had a prejudice against convicting on circumstantial evidence was not, in our opinion, sufficient to sustain a challenge for cause. It was not stated that he was opposed to conviction on circumstantial evidence when connected and sufficient. He might be opposed to conviction on slight circumstantial evidence which raised reasonable doubts as to guilt, just ás he might be opposed to conviction on any other evidence not conclusive to a reasonable mind.

■3. This objection is not sufficient to interfere with the judgment.

4. The evidence offered on the motion for a new trial, embodied in the bill of exceptions, was not sufficient to support the motion, and we think the judge a quo, in the exercise of his sound discretion, properly overruled it.

It is not improbable that the indictment was duly found and pre■sented by the grand jury, but the record does not show this, and, on the data furnished by the meagre transcript, we cannot presume that these •necessary requirements were fulfilled. If they were, the minutes may be corrected nunc pro tunc and a new trial proceeded with.

It is, therefore, ordered, adjudged and decreed that the verdict and judgment be set aside and the judgment appealed from annulled, avoided and reversed, and that the defendant be detained in custody, subject to the orders of the District Court of the parish of East Baton Rouge, to await further prosecution or proceedings according to law.


author: Fenner, J. Poché, J.

text:
    No. 7060.
    The Consolidated Fruit Jar Company vs. Meyer L. Navra.
    Defendant’s Answer absolutely denying that lie ever was a debtor of Plaintiff in tbe matter sued upon, he cannot pretend that the circumstances of the case, as disclosed by the evidence, show a novation of the orignal debt, by which he is released.
    A PPEAL fro.m the Fifth. District Court for the parish of Orleans, ii Rogers, J.

      Chs. S. Rice for Plaintiff and Appellee:
    First — The defendant, a momber of the firm of Levi & hTavra, or Levi, Navra & Co., could not relieve himself from his liability as a commercial partneo by selling out his interest to a third person.
    Second — The goods having been ordered before defendant ceased to be a member of the firm, though received by the succeeding firm, he is liable for the price, the plaintiff never having assented to accept a new debtor in his stead.
    Third — The succeeding firm having, without objection of defendant, received, accepted and disposed of the goods, it lies neither in the mouth of defendant, nor of that firm, to refuse payment thereof, on the ground that the goods were unmerchantable.
    Fourth — Computation shows that the time for operation of prescription of three years had not run; and even if it had, the prescription in this suit would be that of ten years, the account being a “stated account,” duly acknowledged by two members of the commercial firm of Levi, hTavra & Co. (Pages 105 and 106.)

      Braughn, Buck & Dinkelspiel for Defendant and Appellant:
    Where it is established that a retiring member of a commercial firm has been released by his creditor, cannot subsequently be held responsible for tbe obligations of his old firm.
    The fact of the discharge of a debtor and the substitution of another in bis place can be shown by tbe acts of tbe creditor, and where the creditor is notified of the dissolution of the commercial firm, and trades with that new firm, sending to them portions of goods ordered by the old firm, in order to make merchantable and salable tbe property so ordered, all this occurring subsequent to the dissolution of the old firm, is in itself a virtual acceptance of the new firm’s obligations, and a complete discharge of the old debtor’s responsibilities. This in nowise conflicts with the cases reported in 9 An. 497; 13 An. 238, or 14 An. 212.
   The opinion of the Court was delivered by

Fenner, J.

The commercial firm of Levi & Navra, of which defendant was a member, ordered certain' goods from plaintiff in New York, which were consigned to said firm in New Orleans, per sailing vessel. Before they reached New Orleans, defendant sold out his interest in the firm to George G. Wolff, and a new firm of Wolff & Levi was formed, which, under contract with defendant, took the stock and assets of the former firm and assumed its debts.

It is not pretended that plaintiff was a party to this arrangement, or that, of itself, it released defendant from the contract made with his firm. The goods, on arrival, were received and taken possession of by Wolff & Levi. They were opened and a part of them sold to customers by that firm. On 24th May, 1872, a few weeks after delivery, Wolff & Levi wrote to plaintiff, saying: “ We have to mention those fruit jars received, the tops of which do not fit in tight, the screws not working well. Wé have opened most every shipment, and received complaints, and many of them returned. We shall have to keep what we have on hand subject to their fyour?) order, as they are not as represented.”

This letter appears not to have reached plaintiff. On August 24th, Wolff & Levi wrote again, enclosing copy of the above letter. To this plaintiff replied, offering to supply new tops or rings which would fit, and to pay for labor and trouble of overhauling and fitting. Subsequently the matter was fully arranged by plaintiffs remitting $259 of the account and furnishing the new rings or tops, which was accepted by Wolff & Levi, who then paid part of the account, and kept and disposed of the goods.

This action is brought for the balance due on the account. The defendant contends that the effect of the above dealings was to release th.e firm of Levi & Navra, and himself as a member thereof, and to substitute the firm of Wolff & Levi as the only debtor of plaintiff. We cannot so regard it.

Defendant contends that the contract was not completed with Levi & Navra, because the goods received were not such as were ordered and represented; that liability only attached when the goods were made merchantable, and that they were so made merchantable in the hands of, and to the benefit of Wolff & Levi, who then became alone liable. We think that Wolff & Levi were the constituted agents and liquidators of the firm of Levi & Navra, and must be considered as so acting in all these transactions.

These goods were consigned to Levi & Navra upon their order. It was by authorization of defendant that Wolff & Levi received and took possession of them, and dealt with the goods. Unless Wolff & Levi represented Levi & Navra in objecting to the acceptance of the goods, and notifying plaintiff of their defects, the firm of Levi & Navra has never yet made objection thereto, and could not urge any at this late day. If defendant claims the benefit of the act of Wolff & Levi, as his agents, in one part of the transaction, he cannot repudiate it in others.

Having sold out his interest in the assets of Levi & Navra, defendant must be presumed to have received consideration for these goods as well as others; and it must be assumed that the proceeds of sale thereof by Wolff and Levi have enured to defendant’s benefit by being 'used in liquidating the debts of his old firm, assumed by Wolff & Levi, but for which he remained liable.

The evidence affirmatively establishes that plaintiff never consented to any novation of the debtor; that the goods stood always charged on their books to Levi & Navra; that the invoices and accounts were made to that firm; that long after the dissolution of the firm, and while the negotiations were pending with Wolff & Levi about the goods, plaintiff, by letter, demanded payment of Levi & Navra; that it brought suit in New York against that firm; and always, and in every manner, asserted its liability.

The judgment appealed from is, therefore, affirmed at appellant’s cost.

On Application nob Reheaeing.

The opinion of the Court was delivered by

Poché, J.

Appellant’s counsel, in their application for rehearing, urgently strive to show error in our judgment, in not giving weight to testimony tending to show a novation, with plaintiff’s consent, of the debt sued upon, by the substitution of Levi, Wolff & Co. as debtors, in lieu and stead of Levi & Navra, the original debtors, and they confidently point to the testimony of defendant, who states that this novation was accepted by Tomlinson, an agent of plaintiff.

Our answer is, that novation was not pleaded, and could not, therefore, be proved. As we read defendant’s answer, we understand that he absolutely denies having ever been a debtor of plaintiff on account of the goods which are in suit, for the reason that they were not merchantable at the time that they were consigned and when received, and that he had ceased to be a member of the purchasing firm when the goods were made merchantable by plaintiff.

The defence that he never was a debtor is inconsistent with the position now assumed, that, as a debtor, he has been released or discharged by novation or otherwise.

Counsel also call our attention to a petition filed by them, with a document annexed, purporting to be extracts from the minutes of the United States District Court for the District of Louisiana, showing in bankruptcy that defendant had obtained a composition from his creditors, who had agreed to accept from him twenty-five cents on the dollar in full'of his liabilities, which document was not produced in the lower court, and they ask us to amend our judgment so as to reduce it to that proportion. It is elementary that an appellate tribunal cannot take cognizance of original evidence, or of matters which were not submitted to, or passed upon, by the lower court.

We see no reason to justify us to reopen this cause.

Appellant’s applications are, therefore, refused.


text:
    No. 8299.
    In the Matter of Omer Villeré praying for Rule against the Clerk of this Court.
    The graduates of the Law Department of the University of Louisiana must obtain a license-from the Supreme Court, before they are admitted to practice, as attorneys-at-law, in any court of the State. Section 112 of the Revised Statutes does not make their diploma the equivalent of a license; and they are liable to the Clerk of this Court, under section 756». Revised Statutes, for his fee of §10, for a certificate of admission. In the present case, the applicant having been admitted to practice in all the courts of the State, by order of this Court, the object of the required license has been fulfilled, and such order is equivalent , thereto.

      Omer Villeré, Plaintiff, propria persona.

      George W. Dupré, Clerk of this Court, Defendant, propria persona.

   The opinion of the Court was delivered by

Todd, J.

On the 18th of May, 1880, Omer Villeré, the plaintiff in the rule, appeared before this Court and exhibited his diploma as a graduate of the Law Department of the University of Louisiana, and upon motion of Albert Voorhies, Esq., it was ordered by the Court that he, said Villeré, be admitted to practice in the several courts of this State; that thereupon the oath prescribed for attorneys and counsellors at law was administered to him, and an entry of the said proceeding was made upon the minutes of the Court. After this order was rendered, the plaintiff in the rule registered his name upon the roll of' attorneys.

The Clerk of this Court subsequently erased his name from this roll, whereupon this proceeding was instituted by Mr. Villeré to compel the clerk to re-inscribe his name thereon.

The Clerk, in his answer, admits the facts as stated, but resists the-rule upon the ground that the mover had not taken out the certificate-prescribed by section 756 of the Revised Statutes, and was not, therefore, legally entitled to have his name registered upon the roll of attorneys. "We presume that the provision of the section named, to which the Clerk refers, is the one requiring the payment of ten dollars to the-clerk “ for every certificate of admission of any attorney or counsellorat law.”

The question presented by this proceeding is whether the plaintiff' in the rule is entitled to have his name registered on the roll of attorneys under the circumstances stated; and this incidentally involves the-additional question as to who, under the laws of this State, are authorized to practice the profession of the law, and to be enrolled and recognized in the courts of the State as attorneys at law.

The first section of Act of 1855, p. 121, now constituting- section. 111 of the Revised Statutes, provides:

“ Any citizen of the United States possessing the qualifications (except that of residence), necessary to constitute a legal voter, shall be admitted to practice as an attorney in any court' of this State, upon obtaining a license from the Supreme Court of this State.”

The second s'ection of the same act, now comprising sections 112 and 113 of the Revised Statutes, defines the power of the Supreme Oourt in this respect, and limits its authority to grant such licenses to the following cases:

1. “ To all graduates of the Law Department of the University of Louisiana who shall produce evidence of good character.”
2. To those who have been licensed in any other State, or are graduates of any law school therein, of good character, and have been found, qualified to practice in the courts of this State, after an examination in open court.
3. “ When the applicants shall have been found qualified to practice-law in the courts of this State, by an examination before the Supreme Court, according to such rules and regulations as they may adopt from time to time.”

There is also another provision authorizing any one judge of the Supreme, or any two judges of the District Court, to grant licenses to those previously licensed in other States, upon proof of good character and after a satisfactory examination before such judge or judges.

It is very certain that a license under some one of these provisions is absolutely essential to enable any one to practice law in this State, and to be enrolled as an attorney.

The plaintiff in the rule seems, however, to base his application against the Clerk mainly, if not solely, on his diploma from the Law Department of the University, and urges in his brief that he produced this diploma to the Clerk when requesting the reinscription of his name on the roll. It is true that, under an act passed in 1855, p. 417, and now known as section 127 of the Revised Statutes, to which we are referred, it is provided “ that the degree of bachelor at law conferred by the Administration of the University of Louisiana shall authorize the persons on whom it is conferred to practice law in this State.”

This last act must, however, be construed and considered in connection with the other provisions of law above cited. In point of fact, these acts, as separate acts, have all been repealed by the repealing clause of the act of the 14th of March, 1870, adopting the Revised Statutes, which act, .however, readopted them as sections of these Statutes: and these provisions may now be regarded as one act, or as different sections of the same act. Thus regarding them, the Court must construe them together as a whole, and so construe them as to harmonize any seeming conflicts in the different parts or sections, so as to give effect, if possible, to each and every one of the same. Adopting this mode of construction, we take the plain meaning of the entire act, of all the sections, to be this:

That the graduates of the law school or Law Department of the University of Louisiana are entitled to a license to practice law and to receive such license from the Supreme Court of the State; that the Court is authorized and empowered to grant the license upon the presentation of the diploma and proof of good character, and without examination. To say that the diploma of the law school is the equivalent of a license, and of itself entitles the party to practice law without any action of the Court or proceeding before it, would entirely nullify that clause of the law which expressly designates the graduates of the law school, by name, as a class of persons entitled to receive their license from the Supreme Court, and render the granting of such license by the Court a vain thing and a meaningless ceremony.

In regard to the certificates of admission provided for in section 756, which the clerk is authorized to issue, and for which his fee is prescribed, there is no provision of the law that renders this requirement inapplicable to any class of persons entitled to be licensed or admitted to practice.

In the present case, however, the minutes of the Court, to which we have referred, show that the proper order was rendered by this Court admitting the plaintiff in this rule to practice in all the courts of this State. This order is, in effect, the license contemplated by law; and, in addition to this, as shown, he has taken the prescribed oath. To secure the recognition of his license or admission to practice, he has only to produce a certified copy of this entry, obtain from the clerk a more formal certificate of admission to the Bar, as prescribed in the section (756) referred to.

However this may be, and without deciding what mode the clerk should adopt to secure the fee provided by the section referred to, in this case, we conclude that, as the plaintiff in the rule, Omer Villeré, has already obtained from this Court a license to practice law in the several courts of this State, by virtue of an order duly recorded on its minutes, and having taken the oath prescribed, he is entitled to have his name registered on the roll of attorneys and counsellors at law, without further condition or proceeding.

The rule is, therefore, made absolute.


author: Bermudez, C. J.

text:
    No. 1002.
    N. M. Calhoun et al. vs. S. D. Crossgrove et al.
    Grand-children, coming to the partition of their grand-father’s estate, when their own father died before their said grand-father, are not bound to collate what their father received before his death, because they inherit in their own right, and not by right of representation. G. C. 1240. Re-affirming Decisions in 4 N. S. 557 and 23 An. 290.
    APPEAL from the Seventh District Court, parish of Catahoula. Ellis, judge ad hoc.

      J. L. Eagg and Boatner & Udell for Plaintiffs and Appellees :
    All matters put at issue in a suit for partition are concluded by the judgment rendered therein, which will operate as res judicata. The doctrine announced in 10 A. 636 applies only to such matters as arise before the notary, after the decree of partition has been ordered, and which were not submitted to the Court prior to rendering that decree.
    Grand-children coming to the partition of their grandfather’s estate are not obliged to collate an onerous obligation due to it by their father, C. C. 1240; 4 N. S. 557 ; 23 An. 290.
    A purchase by a married woman is presumed to have been made with community funds until the contrary appears.
    Where a community purchase has been annulled, the obligation of the vendor to restore the . price he has received is a community asset, under the control of the husband.
    The obligation of an heir to collate a prescribed debt, due by him to the estate of his ancestor, does not descend to his heir, who inherits by representation, and who has accepted his father’s succession. By the act of accepting, he has bound himself to pay only subsisting and exigible debts.

      B» G. Smith and D. B. Gorham for Defendant Brunot, Appellant:
    A judgment decreeing the partition of the property of a succession among the heirs is not*'res judicata against a claim for collation subsequently made by one of the heirs, before the partition is made. This point is treated under several different heads, pages 2 to It,, and the authorities bearing upon each, respectively, referred to.
    "When a married woman sells her property and the sale is afterward annulled on the ground 5 of lesion, and she recovers the property, the obligation to restore the price received by her is an obligation of the wife, and not of the community between her and her husband.
    ■When a married woman is executrix of her former deceased husband and the property under* her administration is composed exclusively of the community property between them,, the entire property, including the eventual interest of the executrix therein, is deemed, by the law as the estate and succession of the deceased husband, and is administered by the executrix as succession property.
    And the revenues of such property belong to the succession, and do not fall into the community between the executrix and her living husband, and are not under his control and administration, but under the control and administration of the executrix. 17 L. 247-8 24 An. 529.
    Where a married woman purchases property, and in a. suit against her for the property, to* which her husband is made a party to authorize and assist her, she claims the property as her own, then as between the husband and heirs of the wife, he would be estopped’ from disputing the title of the wife, and the judicial admissions of the wife are binding on the heirs. 21 An. 343; 16 An. 271; 23 An. 83; Hen. 1469 § 6; Hen. 522 § 5 ; Louque,. 224 § 49.
    The receipt by the husband of money belonging to the wife is a valid receipt by the wife- • C. P. 107; 25 An. 592; 15 An. 383 ; 26 An. 594; Louque, 675 § 3, ib. 624 § 1-2.
    The proceeds of the crops of a plantation under administration is the property of the succession, and rent due for land belonging to the succession is a debt due to the succession, and not to the heirs.
    A succession is a legal person, and does not lose its identity as such till the heirs are lawfully put into possession of the property. C. C. 873 ; 32 An. 1021; Louque, p. 160.
    The revenues of the property of the succession received by the heirs are a part of the property of the succession, and should be brought into the partition. Donat §§ 2767, 2662, 2663, 2747; 27 An. 328; 32 An. 974.
    In this case the Calhouns and Crossgroves come to the succession of their grandfather, Heely, not by representation of their mothers, hut by transmission through them. 4 H. S. 590; 23 An. 290.
    A judgment is barred by prescription of ten years and it runs against minors. 24 An. 211,
    The plaintiffs, Calhoun, who were all majors at the time they brought the present suit for partition of the same property embraced in the decree of I860, it is evident that by the institution of this suit they have re-opened the whole question of collation, even though it had been closed by the decree of 1860.
    The plea of res adjudicóla cannot avail one whose, action involves a renunciation of the plea. Hen. Dig. p. 764 § 21.
    Both the plaintiffs, Calhoun and defendants, Crossgrove, are concluded by their acts and judicial admissions, and also by those of their ancestors.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action óf partition among the grandchildren óf Sanders Neely and wife. They constitute three branches, one suing, two defending. No difference exists between them, as to the proportion in which the inheritance is to accrue to them. The contention involves only the liability of the plaintiffs and of the minors Orossgrove, defendants, to collate.

Brunot, the other defendant, who represents a branch by himself,, claims that the plaintiffs should be made to collate three sums, which aggregate $16,650, alleged to have been received by their mother, from Widow Neely (at the time Mrs. Garrett), and that his co-defendants, the minors Orossgrove, who together represent a branch, should bring back $4650, which their mother had likewise received.

In bar to this demand for collation, the correctness of which is denied, many defenses are set up.

The plaintiffs and the minors Orossgrove plead res judicata. The-latter claim, that the estate of Mrs. Garrett is indebted to them in the sum of $2156, with legal interest for twenty years, which they eventually set up in compensation. The defense of res judicata is predicated on a judgment rendered in 1860, in a partition suit brought by Mrs. 'Calhoun, plaintiffs’ mother, against Mrs. Garrett and against her co-heirs. The claim for the $2156 is based upon a judgment rendered in 1859, homologating an account presented by Mrs. Garret as Neely’s executrix. The minors Crossgrove further claim the rents and revenues of the property from 1859, the date of the account, up to the death of Mrs. Garrett, which occurred some two years since.

The lower court rejected those several demands and ordered a partition in kind. From this judgment Brunot, alone, has appealed. The minors Orossgrove have asked no amendment.

In this Court, both the plaintiffs and the minors Crossgrove, through their tutor, have pleaded the prescription of five, ten and twenty years.

The facts disclosed by the record are : Sanders Neely and Sarah A. Neely were husband and wife. As the only issue of their marriage, they had four daughters, who were minors at their father’s death, in 1847. Neely left considerable property, and a will, appointing his wife the executrix thereof. She qualified, both as executrix and as tutrix. In 1848 Mrs. ■Neely became Mrs. Garrett.

It appears that subsequently, Mrs. Garrett became desirous of purchasing the interest of Mrs. Calhoun in her father’s estate, and accordingly, a notarial act was executed. Several receipts were offered in evidence to prove, not only the receipt of the price of sale, but other amounts.

We are satisfied that those receipts have been shown to represent one and the same thing, the price of the hereditary rights and that of a slave. We do not understand that it is now insisted that they prove anything else.

There is also in evidence a receipt, purporting to be for the price of sale of Mrs. Crossgrove’s interest in her father’s succession, but the testimony of the tutor of the minors shows that the money, which was received and was less than the receipt calls for, was paid on account of the revenues of the Neely plantation.

It is claimed that, as the sale by Mrs. Calhoun to Mrs. Garrett was judicially annulled, the price of sale should, under the terms of the judgment, which reserves the rights of Mrs. Garrett to claim it, be collated by the plaintiffs, as a debt of their mother, whom they represent.

We have thought proper briefly to state our views, touching the character of those claims, not because we considered the statement material for the determination of the controversy, but merely because we deemed it proper to place the parties in their rightful positions, for a better understanding of the case. .

Considering, from the conclusion which we have reached from a different standpoint for the decision of the differences of the parties, that it is unnecessary to pass upon the pleas of res judicata, prescription and compensation, set up in this matter, we will simply eliminate them.

Conceding that it is true that both Mrs. Crossgrove and Mrs. Calhoun have received from their mother the amounts charged against them, — we do not find that they were given to them en avancement ■d’hoirie. The utmost that we could And would be, that those ladies re-received those amounts and that'they died indebted for the same to their mother, Mrs. Garrett.

It is important to bear in mind, not only that Mrs. Crossgrove and Mrs. Calhoun died before their mother, whose heirs they never were, but also, that their successions were accepted by mere operation of law, under benefit of inventory, on behalf of their minor children.

Such being the case, those children, coming in their own right to the succession of their grandmother, Mrs. Garrett, are not bound to collate debts due her by their respective mothers.

The maxim: qui jure alterius utiiur, eodem jure debet, receives no application to a case of the nature of that now under consideration.

Although it may be true, as a proposition of law, that, if Mrs. Crossgrove and Mrs. .Calhoun had survived their mother they would have had to collate, not only advances and gifts, but also debts, it is not the ease when, having died before their mother, they leave heirs or representatives who are called to the inheritance and come to it in their. own right.

Article 1240 of the R. C. C. provides that “ the grandchild, when inheriting, in his own right, from the grandfather or grandmother, is not obliged to refund the gifts made to his father, even though he should have accepted the succession; but if the grandchild comes in only by right of representation, he must collate what had been given to his father, even though he should have renounced the inheritance.”

This article is almost identical with article 248 of the Napoleon Code, and was article 203 of the Code of 1808.

It has already been twice judicially expounded, and extended to debts due by the heir to the ancestor, however those debts may have originated.

In the case of Destrehan, 4 N. S. 557, in which two opinions were rendered, one by Judge Mathews and another, on rehearing, by Judge Porter, the question now before us, presented under this article, was most elaborately, maturely and ably considered. The Court there distinctly held, that grandchildren, coming to the partition of their grandfather’s estate with uncles and aunts, are not bound to collate an onerous obligation due by their father. In the exhaustive opinion on the rehearing, the Court finally said ; “ If the father should die after the succession was opened, and his children came forward to represent him in the partition of their grandfather’s estate, they could take neither more nor less than he could. But when the father dies before the grandfather, the grandchildren do not take their right from their father ; they receive it from the law, independent of his acts or his will, and even when he should have manifested a contrary intention.”

In the succession of the Misses Morgan, 23 An., 290, in which the question was again presented and ably considered, the ruling in the Destrehan case was formally affirmed. 8 L. 228.

Those decisions are fully supported by all the French authorities bearing on the question. Rolland de Villargues, Rap. de Suc. § 2, n. 29; Malpel, n. 263; Chabot, v. 3, on Art. 848; Toullier 4, n. 458, 186, 187; Delvincourt, Notes et Expl. 28; Paillet, Leg. and Juris des Suc., 2, 600; Manuel des Audiences, 177; Manuel de droit Français, Art. 744—note; Laurent, vol 2, p. 138, No. 175, on Art. 848 (Cours élém. de dr. civ.)

Concluding, therefore, that the Calhoun and Crossgrove heirs are not bound to collate, we find no error in the judgment appealed from, which is, therefore, affirmed with costs.


author: Poché, J.

text:
    No. 998.
    Isaac Lemle vs. John P. Routon, Sheriff, et als.
    On Motion to Dismiss.
    The surety on a release bond cannot be held for a greater or different amount than his principal.
    The obligation of the principal on such bond is to produce the property on the day of sale, and, in default thereof, to pay the amount of the judgment with interest and costs, but not the amount of the bond, nor tbe value of the property if it exceeds the amount of the judgment. 33 An. 416, affirmed.
    In a suit enjoining a seizure, a claim for damages cannot vest, or contribute to vest, this Court with jurisdiction. 30 An. 427, affirmed.
    APPEAL from the Seventh District Court, parish of Catahoula. JEllis, judge ad hoc.

      Smith & Dagg for Plaintiff and Appellee:
    Tho Supreme Court is without jurisdiction. The principal of the judgments of Winter & Hunter vs. Peter Hunter is, in one case, $500, and in the other $397 57, amounting together (exclusive of interest) to $895 57, which sum, without deducting $105, which has been paid on the judgments, is insufficient to give the court jurisdiction.
    The thing or matter in controversy is the amount of these judgments.
    'The surety on the bond can never, in any event, be bound for more than the judgment against the principal. If the bond is less than the judgment, then he would be bound for the bond only. If the bond is for more than the judgment, then only for the judgment. In cases of sequestration, where the bond should be for the value of the property released the surety is liable for that value only, whatever the amount of the bond or judgment. Carroll vs. Hamilton, 30 An. 523 j 4 An. 372; 33 An. 14.
    In this case execution could issue for the amount of the judgment only, and not for amount of the bond.
    Id case of an ordinary twelve months’ bond, the writ might issue on the bond, for that is precisely the amount due to the creditor by the debtor 5 but in this case, though the bond has the effect of a twelve months’ bond, yet it is no measure of the surety’s liability, for, as under the law, it must exceed by one-half the value of the property released, that value might be twenty times the amount of the judgment.
    D. B. Gorham for Defendants and Appellants:
    It is not the amount of the judgment, but the amount in contestation which gives jurisdiction to the Supreme Court. 21 An. 366 j 28 A. H. R.
   Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

Plaintiff and appellee moves to dismiss this appeal on the ground that the amount in dispute is not sufficient to give us jurisdiction.

From the pleadings it appears that Winter & Hunter, judgment creditors of Peter Hunter, Sr., issued execution against their debtor, whose property was seized by the sheriff, but was released by the debtor, who furnished a delivery bond in the sum of $1080, in accordance with the provisions of Sec. 341, Revised Statutes, with the plaintiff in this case as his surety. On the failure of the debtor to produce the property on the day fixed for the sale, the delivery bond was forfeited by the sheriff, who then proceeded to seize the property of plaintiff herein, as the surety on the bond. The object of the present suit is to restrain further proceedings in execution on the forfeited bond, on the ground of the alleged nullity of the two judgments held by Winter & Hunter, and on which execution had issued against Peter Hunter, Jr. These two judgments, which had been rendered by the late Parish Court of the parish of Catahoula, were, one for the sum of $500, and the other for $395 57, with interests, and subject to a credit of $105, making the aggregate of the capital of the judgments amount to. $895 57, subject to the credit stated above, and that amount is, in our ■opinion, the matter in dispute in this suit.

In the ease of Schmidt & Ziegler vs. A. C. Brown and R. Strauss, recently decided by us in New Orleans, and not yet reported, and presenting this identical question, we considered the following propositions .as clearly established and settled in our jurisprudence:

1st. That the surety on the bond could not be bound for a greater .or different amount than his principal.

2d. That the obligation of the principal .was to produce the property on the day of sale, and in default thereof, to pay the amount of the judgment with interests and costs, but not the amount of tliebond, nor the value of the property, if it exceeds the amount of the judgment.

It follows, therefore, that the obligation of the surety in this ease was to produce' the property of his principal, which had been released from seizure, and in default thereof, to pay the amount of the seizing creditors’ judgments with interests and costs.

Under the forfeiture of the bond the sheriff was proceeding to enforce this obligation against the surety, when he was enjoined by these proceedings. The issue is, therefore, whether the sheriff will be allowed •or not to proceed in the enforcement of this obligation, and, for the purpose of our jurisdiction, the test is to be found in the amount of the obligation sought to be enforced, exclusive of interests, and which presents a matter in dispute not exceeding one thousand dollars.

Appellants contend that the claim for damages in the sum of thirteen hundred dollars, contained in plaintiff’s .petition for injunction, .should vest this Court with jurisdiction.

One of the items of the damages claimed, is one thousand dollars for loss of credit, and is purely fictitious. We take it as a settled doc- ■ trine that in a suit enjoining a seizure, on the ground of the nullity of the judgment, a claim for damages cannot be considered as an element under which the appellate j urisdiction of this Court can be tested, and we shall not consider this extravagant derqand for imaginary damages as a part of the matter in dispute in this case. Poree vs. Valisch, 15 An. 292; particularly Cushing vs. Sambola & Ducros, 30 An. 427.

The reasoning of the court on this point, in Cushing vs. Sambola & Ducros, 30 An. 27, is conclusive, and we have followed that authority in a case recently decided by us in New Orleans, and not yet reported.

Our attention is called to the fact, as shown in the record, that this appeal had primarily been brought before the Circuit Court of Appeals • of the Second Circuit, whence it was dismissed ex proprio motu, on the . ground that the matter in dispute exceeded the jurisdiction of that tribunal.

We have carefully read and considered the able opinion of our learned brothers of the Circuit Court, and are constrained to differ with - them in their conclusions. But we cannot grant the relief asked by appellants, and remand this appeal to the Circuit Court with directions to entertain the same.

The right of appeal is sacred, and should not be denied for insufficient reasons, but until proper proceedings have been resorted to, we cannot exercise our supervisory jurisdiction.

It is ordered that this appeal be dismissed at appellants costs.


author: Fenner, J.

text:
    No. 992.
    John Chaffe, Bro. & Son vs. William T. Oliver, Administrator.
    The administratorjof a married woman’s succession has the right to show, without pleading fraud and injury, that an obligation contracted by her during her lifetime and upon which her estate is sued, was forthe purpose oi paying her husband’s debt and, therefore, null and void.
    APPEAL from the Eifth District Court, parish 'of Bichland. Gunbyy judge ad hoc.

      Bayne & Benshaw and Wells & Williams for Plaintiffs and Appellants:
    Testimony before the clerk is subject to such objections as may be made at the taking thereof, and also subject to such other objections as may he mad© to the introduction thereof on the trial. R. R. S. § 491.
    The administrator of an estate represents the creditor as their trustee. 2 An. 923; 4 An. 169; 21 An. 149.
    To set aside an alleged illegal contract, the administrator (or creditor) must allege and prove that said contract was in fraud of and to the injury of the creditor. R. O. C. 1878; 11 Rob. 494; 2 Rob. 101; 1 Rob. 528; 19 An. 290 ; 6 An. 495. ,
    A sale by an intestate can be attacked only by heirs, legatees or creditors, whoso debt© existed at the time of the decease. The sale cannot he attacked by the administrator, unless creditors have been injured. 6 An. 495.
    An act or contract* by the wife, whereby she is rendered liable for her husband’s debts, is-affected with a relative nullity only, hut exists unless repudiated by those in whose inter* est the nullity is established.
    Her disability renders such contracts voidable. 3 An. 426.
    Illegal contracts affecting minors’ property may be ratified. 3 An. 536; 3 An. 329-330. So may those affecting the property of married women.
    A contract made by a femme couverte may be ratified by her after she becomes a femme sole. 4 La. 328 ; 7 La. 76.
    A person who becomes capable of disposing of property thereby becomes capable of ratifying any alienation already made of the property. 8 Rob. 466.
    To revoke an illegal transfer the transferree should he sued.
    A married woman authorized by her husband may sell her separate property. She may mako such use of the proceeds as she desires.

      Potts & Hudson and CIis. J. Boatner for Defendant and Appellee:
    First — A wife cannot bind herself or her property for the debt of her husband. O. C. 2398
    Second — The law forbidding such contracts is prohibitory. 14 An. 165; 9 L. 590.
    Third — "Whatever is done in contravention of a prohibitory law is void. C. C. 12.

      Fourth — When the law forbids contracts of a particular kind its provisions cannot be evaded by giving to those contracts a different form from that iorbidden by law, when in substance the contract is that prohibited. 5 hT. S. 54, 431; 7 bT. S. 344; 8 B. S. 692; 4 B. 510 ; 12 B. 84; 12 An. 852.
    Fifth — Married women are never estopped when sought to he held liable for the debts of their husbands. 14 An. 168; 16 An. 11.
    Sixth — Whatever be the form of the contract its true nature and intent may be inquired into. 12 An. 852; 12 B. 84; 1 An. 429 ; 2 An.J56; 14 An. 169; 4 B. 508.
    Seventh — The heirs have all the rights of the deceased. C. C. 945; 7 B. 183; 15 L. 528; 19 An. 75.
    Eighth — The administrator represents the heirs as well as the creditors.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiffs sue the defendant, as administrator of his deceased wife, Mrs. S. J. Oliver, upon two notes, secured by mortgage and vendor’s privilege upon immovable property belonging to her estate.

Defendant, admitting the signature arnjl execution of the notes by the deceased, opposes the demand upon allegations covering, substantially, the following facts:

Oliver and his wife were separate in property; and-each had separate accounts with the New Orleans firm of I. W. Arthur & Oo., Oliver being in 1871, a debtor of that firm, and his wife a creditor thereof.

On May 26th, 1871, Mrs; Oliver was induced by her husband to execute an act of sale of certain real estate belonging to her to I. W. Arthur, for a pretended consideration; the sole object being to place the title in the hands of I; W. Arthur & Oo. as security for any indebtedness which Oliver, the husband, might then or thereafter owe them.

The property remained in possession of Mrs. Oliver, who paid the taxes by draft on Arthur & Co., by them paid and charged to her account. Subsequently, in 1872, under arrangement between Oliver, Arthur & Co. and the present plaintiffs, it was agreed that the latter should be placed in the shoes of Arthur & Co.; and that, upon plaintiffs’ accepting the drafts of Oliver, in favor of Arthur & Co., for the amount of Oliver’s indebtedness to the latter, Arthur should make over to plaintiffs the title to the property. This was accordingly done. Arthur conveyed the property to plaintiffs, “ with no personal warranty,” in consideration of the acceptances agreed on. Plaintiffs opened an account with Oliver and charged him with the proceeds of the acceptances, discounted by themselves. Plaintiffs were informed that Arthur & Co. held the title from Mrs. Oliver solely as security for her husband’s debt; and accepted the title from Arthur merely as collateral security for the same debt, represented by their acceptances of Oliver’s drafts. Although the plaintiffs held this title for a considerable period, the property remained in possession of Mrs. Oliver, who paid the taxes on it.

Thereafter, plaintiffs placed the title back in the name of Mrs. Oliver, by a sale to her, “with no personal warranty,” for a consideration of $5000, evidenced by her two notes of $2500 each, secured by mortgage and vendor’s privilege, being the notes now sued on.

The plaintiffs credited the amount of these notes (discount off) to W. T. Oliver, and held the same as security for Oliver’s debt to them, and to be enforced only for the amount which he might owe them.

Such are the facts of these transactions, as alleged in the answer and clearly established by significantly uncontradicted evidence, received over tlie objection of plaintiff’s counsel to its admissibility.

If the evidence was properly received and is entitled to consideration, it is obvious that the transactions recited were, from beginning to end, a mere contrivance, to which all the parties were knowingly privy, by which the wife and her property were to be bound for her husband’s debts, in violation of the prohibition of Art. 2398 of the Civil Code. It is settled, to epitomize our jurisprudence, that such transactions cannot be sustained; that the wife and her legal representatives cannot be bound thereby; that she may attack and annul them, or may defend against them; that she is not estopped by her own acts in aid of the transactions, which are presumed to be done under marital influence; that, whatever the form of the contract, its true character may be inquired into and laid bare; and that, in her assault upon even authentic acts, she is not confined to counter-letters and interrogatories on facts and articles, but may resort to parol evidence to establish their true nature and purpose. See on these different points: 14 An. 169; 16 An. 11; 5 An. 572; 2 An. 756; 12 An. 852; 12 R. 84; 1 An. 429; 4 R. 508;

Of course, these doctrines have their limitations^ when they involve the rights of innocent third persons, who have acted, in good faith, upon the apparent validity of such transactions. With these limitations we are not here concerned.

The objection to this evidence, as presented by the bill of exceptions, is based on the idea that the administrator represent the creditors alone; that the defense is, in effect, an action by, or in behalf of, creditors to revoke the contracts of their debtor, and cannot be maintained in the absence of allegations of fraud and injury to creditors.

We find no force whatever in the objection. It is manifest that the administrator represents the heirs as well as creditors, and is entitled, and even bound, to bring all actions and make all defenses, which the deceased could make. As representative of the creditors, an administrator may bring some actions which the deceased could not have brought; and, in such case, the allegations of fraud and injury to creditors would be essential. This, however, is not such a case, and those allegations were unnecessary.

The evidence was properly received, and it establishes a conclusive defense against plaintiffs’ claim.

Defendant claimed, in reconvention, an amount due by plaintiffs outlie separate account of deceased. .

The judge a quo did not err in confining her claim to the amount shown on the account rendered to her by plaintiffs, which she received, and, so far as the evidence shows, never objected to.

The judgment is, therefore, affirmed at appellant’s cost.


text:
    No. 1018.
    The Mayor and City Council of Monroe vs. John Gerspach.
    The right exists in the Council of a municipal Corporation to determine what, in its nature and use, it deems a nuisance, and to direct its removal or discontinuance under the penalties which it is, by legislative authority, empowered to impose or inflict. 10 An , 227.
    ApPEAL from the Becorder’s Court for the City of Monroe.

      Stubbs & Stillman for Defendant and Appellant.

      Franklin Garrett for Plaintiff and Appellee.
   The opinion of the Court was delivered by

Levy, J.

The defendant appeals from a judgment rendered by the Becoi’der’s Court of the City of Monroe, decreeing that he pay a fine of twenty-five dollars and costs and, in default of his payment of said fine, that, he work on the public streets, to be computed at one dollar per day until said fine is paid. This fine was imposed for violation by the defendant of Ordinance No. 413 of said city, in failing and refusing, after due notice given to him, to fill up the vaults or sinks of privies on premises in said city, belonging to, or under the control and agency of, defendant.

Appellant urges the illegality and unconstitutionality of said ordinance, on the grounds:

That it is not a general law, under which these or any other vaults-are declared and can be shown to be nuisances; nor is it a law, under which any structure, of any description, can be'sliown to be a nuisance; 2d. That a condition precedent to enforcing the removal of any given structure as a nuisance, when said structure is not built or erected in violation of a prohibitory law, is to first declare said structure a nuisance;: that said ordinance does not so declare the vaults which it is attempting to do away with, and, for that reason, is null and void; 3d. That the-City Council may enact-laws to prevent, as well as remove,, nuisances, but cannot punish by fine and imprisonment for failure, to- remove a. nuisance which does not exist in violation of a prohibitory law; that a law of that character is unconstitutional, for its enforcement would be placing an unjustifiable restraint upon personal liberty; that Ordinance No. 413 is of such character, and is, therefore, unconstitutional, null and void; 4th. That said ordinance is null and void because it does not give to the owner of the property, who refuses to remove the alleged nuisance, the right to show that the object is not of such character, and it is, therefore, unreasonable and an oppressive restraint upon common right; •and, 5th. That said ordinance is invalid because its enforcement will not preserve the cleanliness of the city and thereby benefit the health of its ■citizens, but, on the contrary, it is calculated and will prove deleterious <to the public health.

The act of the Legislature, approved May 4th, 1871, incorporating the City of Monroe, is very full and explicit in its grant of municipal powers; among others, it specially confers the power “ to regulate and preserve the peace and good order of the city, and provide for, and maintain its cleanliness and salubrity in a manner not inconsistent with the laws,” ?¿ 9. In the same section, the city is authorized “ to abate nuisances, suppress houses of ill-fame, and to cause the arrest and punishment of vagrants,” “ to cause persons sentenced to fine and imprisonment, or either, to be placed at work upon the streets and other public works of said corporation, in the event of the failure of said persons so sentenced, as aloresaid, at one dollar per day.” Under the authority thus granted, “ to make and pass such laws and ordinances as are necessary and proper,” the city adopted Ordinance 413, “ in reference to the public health of Monroe, prohibiting the digging o.r excavating of privy vaults, requiring all privy vaults and excavations now existing to be filled up, and prescribing penalties for the violation of any provision of (this) ordinance.” That eminent author, Judge Dillon, in his work on Municipal Corporations, vol. 1, ?369, says: “Our municipal corporations are usually invested with power to preserve the health and safety of the inhabitants. This is indeed one of the chief purposes of local government, and reasonable by-laws in relation thereto have always been sustained in England, as within the incidental authority of corporations to ordain.” And in ?¿ 374: “It is to secure and promote the public health, safety and •convenience, that municipal corporations are so generally and liberally endowed with power to prevent and abate nuisances. This authority may be constitutionally conferred on the incorporated place, and it authorizes its council to act against that which comes within the legal notion of a nuisance; but such power, conferred in general terms, cannot be taken to authorize the extraj udicial condemnation and destruction of that as a nuisance, which in its nature, situation or use, is not such.” We think the right exists in the council of a municipal corporation to determine what, in its nature and use, it deems a nuisance, and to direct its removal or discontinuance under the penalties which it is, by legislative authority, authorized to impose or inflict. In the case of Kennedy vs. Phelps, 10 An. 227, our own Supreme Court has passed very clearly upon a question like that involved in this case. The Court there said: “ The power to abate nuisances, is a portion of police authority, necessarily vested in the corporations of all populous towns. In the case of Hart vs. The Mayor of Albany, 3d Paige’s New York Chancery Reports, the Court said: ‘The question of nuisance or no nuisance is always a question of fact, in relation to which the opinions of individuals will necessarily differ. It, therefore, becomes necessary, in all populous towns, to regulate such matters by police ordinances; and public policy requires, that the corporation of the place should not be disturbed in the exercise of their powers, unless they have clearly transcended their authority.’ ” The proper exercise of the police power and the efficient preservation of the public health could hardly be accomplished, if every individual or any set of individuals can determine what is properly to be regarded as a nuisance and what are measures of salubrity. The various tastes and habit^.and the conflicting hygienic theories of different persons would, if it were necessary to be guided by them, prevent the municipal authorities from adopting any fixed and certain plan. It is, therefore, right and proper that they should be vested with the authority to decide what comes within the “ legal notion ” in that regard. 5 N. S. 411; 31 An. 720. We think the ordinance complained of is legal. We are unable to perceive in what respect it infringes any constitutional rights of appellant, and think the judgment appealed from should not be disturbed.

It is, therefore, ordered, adjudged and decreed that the judgment appealed fro m be affirmed at appellant’s costs.