author: Bermudez, C. J.

text:
    No. 10,284.
    The State ex rel. Joseph Block vs. W. C. Perrault, Judge ad hoc.

      Certiorari docs not lie to reviso tlio correctness of a judgment on tlio morits of a caso.
    Its functions arc restricted to ascertaining tlie validity of proceedings on the lace of tlio papers.
    In tho abseuco of any fatal irregularity in tlio samo, however intrinsically orroneous tlie judgment or act complained of may bo, this Court is powerless to interfere.
    The remedy cannot bo invoked so as to operate as an appeal, otherwise every unappoalablo ease, would be brought up for review, under it, to tlie Suporior Court from wliieli relief i« asked.
    A party whose proceedings ia not passed upon by judgmont which does not constitute res judicata, may resort in tlio vindication of liis averred rights to any proceeding allowod him by law.
    yyPPLICATION for Certiorari.

      Kenneth Baillio for the Relator :
   Tho opinion of tlie Court was delivered by

Bermudez, C. J.

This is an application for a Certiorari.

The pith of the elaborate petition, presented to this Court to obtain that relief, is substantially, that, in a suit brought by an attorney- at-law against the Police Jury of the parish of St. Landry, for the recovery of $72, claimed to he due him for professional services and asked to be paid out of a special court house fund under the control of that body, the relator intervened as assignee of Hannan & Voss, contractors, after issue joined; that tho object of tho intervention was to prevent the payment of the sum claimed out of said fund; that evidence was adduced on the trial by all the parties to the suit, and particularly by tho intervenor, that after hearing and submission, the judge ad hoe rendered judgment for the plaintiff, dismissing the intervention on its merits witli costs.

The complaint is that the conclusions of said judge could only have been reached by and through an utter disregard of and refusal to consider, intervenors’ evidence, amounting in law to an abuse of judicial discretion and an usurpation of power not conferred by law, and that said judgment lias had tlie direct effect of destroying his contractual rights and of utterly impairing tlie rights acquired by him as assignee and so was violative of tlie Constitution of tlio United States and of this State; also that tlio resolution of the Police Jury, recognizing tlie claim of said plaintiff, lias tlio like effect.

The prayer is, that after due hearing, said judgment be annulled and sot aside, and that the suit wherein rendered be dismissed at the costs of tile plaintiff therein, etc.

The judge ad hoe returns, denying having passed upon the merits of the intervention. He states that the intervention, and all evidence under it, was objected to, and that the rights thus asserted were reserved ) that nevertheless, evidence was allowed to be introduced under it and, that on deliberation after submission, he concluded that neither was admissible, and so did not pass on the merits of the opposition. He next proceeds to argue to establish the correctness of his judgment.

Evidently, both the relator and the judge ad hoc misconceive the purposes and functions of the writ of certiorari.

That remedy, it has been frequently Held, can bo invoked onlj to ascertain the validity of the proceedings before an inferior court, on the face of the papers, and never to inquire into the intrinsic correctness of decisions, whether interlocutory or definitive, made in the case.

Were it otherwise, all cases which are not by law appealable, could be reviewed effectually by the Superior Court as if they were appealable, and so every judgment rendered by justices of the peace and by district courts, from which no appeal lies, could be taken to this Court and reviewed on their merits, and the judgment complained of, reversed, amended or affirmed.

In the instant case, the prayer is formally that the judgment rendered by the judge ad hoc be annulled and set aside, and that the suit wherein rondered be dismissed at plaintiff’s costs.

There is no complaint that the proceedings were irregular and void, that the judge refused to hear any legal evidence, or that he has decided the case without notice and hearing, or any kindred matter.

The only complaint is, that the judge ad hoc did not conclude correctly in his judgment; that he ought to have maintained the intervention and dismissed the suit.

It is possible that the judge has erred in ruling as he has; but in doing so, he has exercised a discretion, a power, which neither this Court, nor any other court, can control and correct.

We understand the judge ad hoc to say that he has not passed on the merits of the intervention. Such being the case, the relator is not concluded by the judgment rendered, and if there exists any remedy to prevent the execution of the judgment of which he complains, it is for him to ascertain which it is, and invoke it, and not for this Court to indicate it.

Application refused.


source: Caselaw Access Project

author: Bermudez, C. J. Poché, J. Fenner, J.

license: Public Domain

text:
    No. 10,240.
    First National Bank of Shreveport vs. The Board of Reviewers of Assessments.
    However time it be, that United States bonds are not taxable as independent assets, and that their taxation does not depend upon constitutional provisions of the diiferent States, it is a matter beyond discussion, that, wlion tho capital of a bank is in part or in whole, invested in them, the shares of such banks, whether national or State, are liable to State taxation.
    In the assessment of the shares of a bank, whose capital is represented by stock, it is immaterial whether the capital was or was not invested in United States bonds and Stato bonds, although, as a rule, the same be, themselves, 'exempt from taxation.
    Tho words, “ all exempt property,” found in sec. 27 of Act 97 of 1886, relating to deductions from the amount- of taxos assessed to such shares, do not apply to United Statos bonds, or-to State bonds, in which the capital of a bank, State or national, represented by shares, has boon invested.
    APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      Wise do Herndon for Plaintiffs and Appellants.
    On the same side, on Application for Rehearing, Charles B. Singleton:

    We have shown:
    1. That your Honors’ construction of Act Ho. 97 is erroneous because, in one class of business organizations, whose capital is composed in part of bonds oxempt from taxation, you allow the amount of the bonds to be deducted from the capital, when assessed for taxation, but in another class of business organizations, equally entitled to .such deduction, you deny this right. This is unequal taxation, and therefore unconstitutional. Const. Art. 203.
    2. Shares of Stock, under both State and federal law, are portions of the capital divided into parts and called shares; and all the shares are equal to all the capital. La. B. S. Sec. 297; B. S. U. S. Sec. 5134.
    3. Shares separated from the stock have no value, except suchas the franchises may give them, which cannot bo taxed by a State.
    4. That the franchises in this (jase are of little, or no value; but whatever valuó they may have must bo ascertained by a legal assessment. The Legislature cannot assess them or fix an arbitrary value upon them. Const. Art. 203.
    5. That the division of capital into ports or shares cannot deprive a corporation of the right to have all bonds exempt from taxation composing a part of its capital, from being deducted from the capital, wlion assessed for taxation.
    6. United Statos bonds in tho hands of any person, company, etc., cannot bo taxed by a Stato. 2 Wall. 200; 2 Black 627; 20 Ann. 447 ; 29 Ann. 751; 35 Aim. 601; and your Honor’s decision in this case.
    7. That your Honors erred in confining “all exempt-property ” in Sec. 27 Act 97, to the exemptions found in Soo. 1 of that Act and Const. Art. 207.
    8.That the Legislature construed said words, “ all exempt property,” in Sec. 19 of said Act by showing that tho Act included bonds which are made taxable in Sec. 1, and not by Art. 207 Const.
    9.That the imposition of a tax on State bonds impairs the obligation of a contract, injures the Fisc, and reduces their market value.

      10. That taxing bonds is against public policy, because it causes their disuse by banks.
    11. That banks ought to be allowed, like other capitalists, to invest in bonds all their capital they can spare.
    12. That the Sovereign should not complain that a capitalist invests all his money in untaxable bonds, because the Sovereign, by issuing bonds, invited liim to do so.

      Henry G. Miller:

    The 27th section of the Revenue Act of 1886, and not the federal decisions, on the power of States to tax shares of bank stock, controls this case. See Act No. 98 of 1886, 28th Section, page 144, § 27.
    It is exclusively the legislative province to prescribe the method of assessing property for taxation. Heine vs. The Levee Commissioners, 19 Wallace, p. 665 j New Orleans vs. Houston, 119th United States Reports, p. 278.
    Tho provision of tho Revenue Act of 1888, for the deduction of “all exempt property in assessing the shares of banks and other corporation,” requires the deduction of United States bonds, bonds of the State of Louisiana, and of the City of New Orleans, part of the capital of tlio corporations, all such bonds being non-taxable and fairly included in tho words “ all exempt property ” to be deducted, used in the Act. See Act of 1886 No. 98, section 28; Session Acts, page 144; Revised Statutes of the United States, § 2701; Murray vs. Charleston, 96th United States Reports, page 432; State ex rol. DaPonte, 35 Ann. 601.
    The intention of the Act of 1886 manifested by its oxpress language, that in assessing shares of stock of banks and financial institutions prominent in the legislative contemplation, non-taxable bonds, i. e- United States, State and City bonds are to be deducted, is fortified by the well known fact, presumably known to tlio legislator, that save and except such tax and exempted bonds, no other non-taxable proi>erty is ordinarily owned or susceptible of being part of the capital of financial corporations, hence the deduction of “ all exempt property, ” required by tlio Act, in assessing shares of capital of financial corporations must, be deemed to refer to Rederal, State and City bonds as the only “ exempt property ” ordinarily part or capable of forming part of tho capital of such moneyed corporations.
    The Revenue Acts since 1878, when the taxation of shares of stock was introduced in Louisiana, one and all directing the deduction in assessing the shares of banks and money corporations or all “ exempt property, ” have been construed by the revenue officials, and by all, to mean the deduction of United States, State and City bonds; lienee it must be tho conclusion that tho Legislature, in the various Acts upon the subject, of 1880, 1882, 1886 and 1888, have used the words “ all exempt property ” in their universally received significance, that is, the deduction of all non-taxable Federal, State and City bonds, part of tlio capital of such corporations. Seo Act 1878, p. 229, § 1, par. 8; Act 1880, p. 102, § 48; Act 1882, p. 128, § 28; Act 1886, p. 134, § 28; Act 1888, p. 123, § 27.

      Leovy cij Blair, and Farrar, Jonas & Kruttschnitt.

      Walter El. Boyers, Attorney General, and J. Henry Shepherd, District Attorney, for Defendants and Appellees:
    National banks organized under Acts of Congress are subject to State legislation, except where such legislation is in conflict with some Acts of Congress, or where it tends to im. pair or destroy tho utility of such banks as agents and instrumentalities of the United States, or interferes with the purposes of their creation. Waite vs. Dowley, 4 Otto, 532.
    The State has the right to tax tho shares of National banks, organized under the Banking Act of 1864. of tho United States, in tho hands of. the shareholders, regardless of tho investment of the whole capital of such banks in non-taxable National securities, declared to bo exempt from taxation by or under State authority. Section 21 U. S. Rev. Statutes, 138-162; Allan vs. The Assessors, 3 Wall 573; The People vs. The Commissioners, 4 Wall 244 -, National Bank vs. Tho Commonwealth, 9 Wall 353.

      Exemptions from taxation are not favored and must he strictly construed. Dosty on Taxation, pages SO, 132. 133, 135; 32 Ann. 104; 33 Ann. 622; 34 Ann. 574; 35 Ann. 668.
    Taxation shall he equal and uniform throughout the territorial limits of the authority levying the tax, and all property shall he taxed in proportion to its value. Const. 1879, Art. 203.
    Section 40, Act 98, Acts of 1885, provides that on all taxes unpaid on the 31st day of December of each and every year shall hear interest at the rate of 2 per cent per month from said date.

      Land & Land on the same side!
   The opinion of the Court was delivered by

Bermudez, C. J.

The Bank and the stockholders join to obtain a reduction of the assessment put on the shares for the jear 1887.

From a judgment rejecting their demand they prosecute this appeal.

In May, 1887, the Bank returned to the assessor a statement showing the valuation of the capital stock to be $200,000, deducting therefrom the amounts then invested in United States bonds, $146,593 75, and in State bonds, $27,637 50, aggregating $174,231 25, leaving a difference of $25,768 75, as representing the value of the shares, which had been assessed at $100,000.

The Bank does not contend for the exemption of the shares, but insists that the Legislature having determined and directed the manner in which the shares of banking associations should be assessed to arrive at their value, and the assessment having- boon made in disregard of the method or process indicated, the assessment made ought to be rectified, and made pursuant to the mode prescribed by the law making power and which is contained in Section 28 of Act 98 of 1886.

Practically, the contention is that, taking- the cash value of the shares to be $200,000, they ought not. to be assessed at even half of that sum, because part of the capital of the bank having" been invested in exempt property (United States and State bonds), the amount of the investments ought to be deducted from the value of the shares, and that, by this oxieration, the assessment ought to be of $25,768 75, and no more.

However true it be, that bonds or obligations of the United States are not taxable and that their taxation does not dex>end upon the constitutional provisions of the different States of the Union, it is conceded, as a matter beyond the domain of discussion, “that shares in banks, whether State or National, are liable to taxation by a State, although thecaxrital of the bank maybe entirely invested in United States bonds.”

Indeed, clearly to that effect are the Federal statutes and the jurisprudence on the subject. U. S. Kev. Statutes, Sec. 5219; 3 Wall 573; 4 Wall 244 ; 9 Wall 353; 23 Wall 480; 95 U. S. 19; 100 U. S. 539; and Mercantile Bank vs. New York, 1886, 121 U. S., pp. 145-162, in which anterior jurisxn-udenco is reviewed.

The solitary question presented in this controversy, is, therefore, simply:

Whether the shares of the stockholders have, or not, been assessed in the manner pointed out by the act of 1886.

The section relied upon, which it is unnecessary to transcribe at length, directs that no assessment shall be made of the capital of a National or other bank, whose capital is represented by shares; but that the shares shall be assessed to the stockholders, and that “all pro-property owned by the bank * * * which is taxable under Section 1 of this act, shall bo assessed directly to the bank * * * and the pro rata of such direct property taxes and of all exempt property, proportioned to each share of capital stock, shall be deducted from the amount of taxes assessed to that share, under this section.”

The contention is, that, under the terms of this law, all the exempt property of the bank should be deducted from the evaluation of the shares, and that, if this be done, as the United States and State bonds are exempt property, they should be counted out and the shares assessed at the difference only.

The question hence arises: What is the meaning of the words “all exempt proper by, ” found hi the statute?

Two things are quite clear : First, that the power of the State to tax the shares, though the capital be invested in United States bonds, is formally recognized by Federal jurisprudence; and, second, that the legislative intent was to tax such shares, though the capital was thus invested.

' It cannot be that the language used means all property exempt by Federal or State provision, for the plain reason that if it thus meant, the whole capital of the bank could be invested in such exempt property, and the consequence would be that the bank would have no cash on hand wherewith to transact its hourly financial operations, and that the shares, which the Federal law and jurisprudence allow to be taxed, and the State intended to tax, would escape all taxation whatever, however much their value might exceed that of the capital invested. This would bo writing out the statute entirely.

The conclusion is, therefore, unavoidable that the words mean, all exempt property which do not form part of the capital of a bank represented by shares, and that it is a matter of no significance whether the capital was or not invested, or how it was invested, as the assessment complained of is neither of the bond, nor of the capital, but simply of the shares by which that capital is represented.

It is, nevertheless, insisted that the State bonds in which, part of the capital has been invested are exempt from taxation by State authority and that the amount invested in them should be deducted from the assessment of the shares, which was of 50 per cent, of their admitted market value, say: $100,000.

Granting that State bonds are as much exempt as United States bonds, when not constituting, in whole or in part, the capital of a banking institution, represented by shares, it is evident that, when they constitute, to any extent, such capital, the shares which represent the capital, may be assesessed at their market value, without any deduction from the assessment of the value of such bonds.

Hence it follows that neither the United States bonds, nor the State bonds, in which the capital of the bank was invested, had to be deducted from the assessment put upon the shares.

For those reasons, and those assigned by Mr. Justice Poché, it is ordered that the judgment appealed from be affirmed with costs.

[Mr. Justice Fenner, absent during the argument at Shreveport, takes no part.]

Concurring Opinion.

Poché, J.

The Bank and the intervening shareholders seek to reduce the assessment of the two thousand shares of paid up stock from $100,000'to $25,768 75. The par value of each share is $100, and the rate of assessment was 50 per cent of such face value.

The complaint is that the taxable value of the shares should have been determined by deducting from the aggregate par value of the two thousand shares the amount shown to have been invested by the bank, at the date of listing, in securities exempt from taxation, according to existing laws, and consisting of United States bonds amounting to $146,593 75, and of Louisiana State bonds amounting.to $27,637 50, footing uj) together $174,231 25, alleged to be exempt from taxation, and as such to be deducted from $200,000, thus leaving as the taxable value of the shares the sum of $25,768 75.

They are appellants from a judgment which maintained the assessment at $100,000.

The prominent fact in this case, and which must bo borne in mind throughout the whole discussion, is that there is no question of assessing the capital stock or any other property of the bank as a corporation (which owns no taxable property whatever), but the purpose of the assessing authorities is merely to roach the taxable property of the individual shareholders, as represented by investments in shares of stock of the bank.

For the purposes of this ease, it is immaterial to consider in what kind of securities the capital stock of the bank is invested, even though it be shown that it is actually invested in United States bonds, instead of being represented by mortgage notes, call loans or other values usually characterizing banking operations.

Practically, this proposition is not contested by plaintiffs’ counsel, who say in their brief: “It is conceded that shares in banks, whether State 03' National, are liable to taxation by the State, although the capital of the bank may be entirely invested in United States bonds.”

Tlie doctrine is too well settled by the jurisprudence of the country to be questioned at this day. Van Allen vs. Assessors, 3 Wal. 573; People vs. Commissioners, 4 Wall. 244; Bank vs. Commonwealth, 9 Wal. 353; Revised Statutes United States, Section 219.

It is, therefore, conceded as the law that the value of shares in this bank is liable to taxation by the State, and the only issue in the case is as to the mode of ascertaining their taxable value.

The contention, therefore, hinges upon the proper construction of Section 28 of Act, No. 98 of 1886, which is the law directing the manner of assessing shares in banks. That statute first provides that no assessment shall be made upon the capital stock of any bank, when the saíne is represented by shares, but that the actual shares shall be assessed to the shareholders, imposing the duty on the bank to pay the taxes thus assessed, with the right of collecting the same from Hie shareholders. It then contains the following direction:

All property owned by the bank, company, firm, association or corporation, which is taxable under Section 1 of this Act, shall be assessed directly to the bank, company, firm, association or corporation, and the pro rata of such direct property taxes, and of all exempt property, proportionate to each share of capital stock, shall be deducted from the amount of taxes assessed to that share under this section.”

The crucial point in the case is to ascertain the precise meaning of the language which requires the deduction of all exempt property.

Plaintiffs’ contention is that the Legislature intended to include therein bonds of the United States and of this State.

This is the error which has given rise to the whole controversy.

It must be noted that nothing in that section, or in the entire Act, indicates the slightest, intention to subject either of those securities to taxation, or oven to provide for their exemption. The lawmaker knew full well that both subjects wore beyond his reach. I-Ie knew that, under tlic paramount law of the land, United States bonds were not taxable, and that under the decision of this Court, in State ex rel. DaPonte vs. Board, 35 Ann. 657, State bonds were entitled to the same immunity.

What then did he moan to refer to Í

The question is answered by the first section oLthe Act, which levies a tax on the assessed valuation of all property situated within the State of Louisiana, except such as is exp>ressly exempted from taxation by the Constitution.” [Italics are mine.]

Turning to Article 207 of the Constitution, which is the law of exemptions, it appears that these securities are not therein enumerated, lienee it follows that they are, not in terms or expressly exempted from taxation by the Constitution. It is, therefore, clear that they wore not within the contemplation of the law-g'iver in the section under discussion, as an element of deduction from the par value of shares in banks. To allow the deduction directed in the section was a pure gratuity on the part of the State. The Legislature had the undoubted power to simply assess the shares in banks without reference to the property which might be owned by the banks, and which was actually assessed in their names, or which might be exempt under the Constitution. The deduction ordered in the section was an act of fairness, intended to lighten the burden of the shareholders; it cannot be strained beyond the limits traced by the law itself.

Nothing in the law, as thus construed, can be tortured into an implied intention or indirect mode on the part of the Legislature to tax the bonds in which the capital stock of the bank may be invested. By the very terms of the statute the capital itself is not taxed, hence the securities which may represent it in the vaults of the bank are not taxed either. It is in proof that the bank itself is not assessed for anjr property whatever.

The true meaning of the statute, as applied to this case, is to determine the taxable value of the shares, by deducting such parts of the capital stock of the bank as may be invested in property which is exempt from taxation by the State Constitution. The record shows that the bank owns no such property, hence no deduction was due or could bo claimed.

Therefore, the valuation of said shares at 50 per cent of their face value was not in contravention of law.

I, therefore,, concur in the decree.

The Chief Justice and Justices Watkins and McEnery concur in this opinion.

On Application por Rehearing.

Fenner, J.

The question involved in this case is so narrow that the various briefs, filed by able counsel of different banking institutions interested in the result, have accomplished nothing but the presentation of the same views in different form and order.

Recognizing the magnitude of the interests involved, we have given the whole subject an attentive reconsideration.

We do not see how we could reach a different conclusion from that announced in our original opinion without attributing to the Legislature an intention to do that which, under the Constitution, it has no power to do.

Reduced to its last analysis, the contention is that a large part of the value of the shares belonging to the individual shareholders of the bank is exempt from taxation; for though the question assumes the form of a question of assessment, it would be a self-evident quibble to say that there can be any difference between an exemption from assessment and an exemption from taxation.

Wo road in the Constitution the unequivocal mandates: 1. That “ all property shall be taxed in proportion to its value, to bo ascertained as directed by law.” 2. That “ the following property shall be exempt, and no other.”

Bank shares are property. They are subject to taxation, and, in this statute, tlie Legislature has affirmatively exorcised the power of taxing them. It is not disputed that the value of these shares, as ascertained by law, exceeds the value at which they have been assessed. It is simply claimed that a portion of this value is exempted from assessment and consequently from taxation. The claim is that, after ascertaining the value of the shares, the value of the United States and State bonds hold by the bank, is to be deducted from that valuation, and that the shares are to be taxed, not according to their value, but according to a fraction of their value, as thus reduced.

The question naturally arises : Whence would the Legislature derive the power thus to disobey the constitutional mandate that “property shall bo taxed according to its value ” and to exempt this large part of the “ ascertained value” of these shares from taxation?

If anything can be settled by- jurisprudence, it is settled in this State that the Legislature is absolutely stripped of power to exempt any property or value from taxation, and that when such exemption is claimed, it can be supported only by some provision found in the paramount law. State ex rel. Da Ponte vs. Board, 35 Ann. 654; La. Cotton Mf’g Co. vs. City, 31 Ann. 443; City vs. Lafayette, 28 Ann. 756; City vs. St. Patrick's, 28 Ann. 512; City vs. St. Charles, 28 Ann. 498; 27 Ann. 276, 646, 648.

Tlie dilemma is perfect: Either the exemption claimed is made by the paramount law or the Legislature lias no power to make it.

We are thus brought to the necessary inquiry whether those provisions of the laws of the United States or of the Constitution of the State, which exempt bonds of the United States and of the State from taxation, require or authorize the exemption of any part of the value of shares of stock in banks holding such securities.

So far as the laws of the United States are concerned the Supreme Court of the United States has distinctly and repeatedly answered the foregoing inquiry in the negative, and has held that shares in banks, whether State or National, are liable to taxation by the State at their value, without regard to the fact that the capital of such bank is invested in bonds of the United States. Van Allen vs. Assessors, 3 Wall. 578; People vs. Commissioners, 4 Wall. 244; and several other cases which arc cited and reviewed in Mercantile Bank vs. New York, 121 U. S. 145.

These decisions are based upon the legal distinctions which exist between shares of stock in a bank and the capital of the bank, both in their respective characters as property, and also in their ownership.

• Tlie Court said: “The tax on the shares is not a tax on the capital of the bank. The corporation is the legal owner of all tlie property of the bank, real and personal. * * * The interest of the shareholder is a distinct, independent interest or property, held by the shareholder like any other property that may belong to him, and of course is subject to like taxation.”

State bonds fall under the control of the same principles. It would be impossible to formulate any theory under which an exemption would attach to the shares because the capital of the bank was invested in State bonds, which would not. apply in case the investment was in United States bonds.

It, therefore, clearly appears that the value of the shares now in controversy, which the plaintiff claims the Legislature has exempted from assessment and taxation, is not exempt under the paramount law of either the State or the United States.

If any additional reasons wore required to support those lucidly expressed in the original opinions, this would be alone sufficient.

The principles applying to the exercise of the power of taxation over the capital, the capital stock and the shares of corporation, are amongst the most intricate in that branch of jurisprudence. Authorities differ as to whether the whole capital and shares can both be taxed. It is generally agreed that the taxing-power may be exercised over cither without touching the other, and that when a part of the property Of the bank has been actually taxed in the hands of the bank it may be deducted from the valuation of the shares when they are also taxed, on the principle of avoiding indirect duplicate taxation. But the right to avoid duplicate taxation by no means includes the right to grant duplicate exemptions. Exemptions are strictly construed, and are, in this State, the creatures of paramount law alone. When the Legislature deals with an object of taxation, it can exempt no part of its ascertained value not exempted by paramount law, though it may abstain from taxing a value which it considers to have been already taxed in different form.

The consideration that this will prevent banks from investing their capital in public securities is surely one with which this court cannot deal; nor can we consider another suggestion that those banks which have so invested their capital under the belief, bastid on the previous practice of taxing officers, that such value would be safe from taxation levied even on the shares of stockholders, will suffer loss. The question presented to us for determination is whether the paramount law authorizes the exemption claimed. To determine what is the paramount law and to construe and apply it is the highest function assigned to this court. If wo suffer ourselves to be controlled in such determination bjr the errors and mistakes of others, it would be a virtual abdication of this function.

There can be no question that the tax from which exemption is claimed is not a tax on the capital of the bank, but it is a tax on the shares; because the statute expressly declares: “That no assessment shall hereafter be made under that name as the capital stock of * * any corporation, etc., whose capital stock is represented by shares, but .the aol-ual shares shall he assessed to the shareholders, eic.”

This is the assessment from which it is claimed that the exemption should be granted, and finding that the paramount law does not require or authorize such exemption, we are bound to hold that the Legislature had no power to make it.

No stronger reason could exist for adhering to our former interpretation of the statute, that the Legislature did not intend such exemption.

Rehearing refused.


author: Poché, J.

text:
    No. 10,267.
    The State of Louisiana vs. Louis Claire, John Gibson and William Feehan.
    On a trial for murder, the State having introduced evidence to prove malice and premeditation, by the testimony of a witness from whom the accused -had purchased a pistol a few days previous to the homicide, it is competent for the accused to interrogate the same witness with a view to show that in making preparations for'a combat, he was preparing for an anticipated attack to be made on Mm by another person not connected with the homicide on trial.
    The jury are entitled to hear and consider such testimony, and they are the sole judges of its weight and legal effect.
    The .safe rulo in such cases is as follows: “Evidence of preparation is always admissible for the prosecution, ovidoneo to explain it is always admissible for the defence. Wharton’s Grim. Ev. § 752.
    APPEAL from the Criminal District Court for the Parish of Orleans. Marr, J.

      Walter II. llogers, Attorney General, and John- J. Finney, Assistant District Attorney, for the State, Appellee.

      J. 11. Ferguson, J. G. Walker, and F. B. Farhari, for Defendants and Appellants.
   The opinion of the Court was delivered by

Poché, J.

The trial of the defendants for murder resulted in the acquittal of Feeiian and-the conviction, without capital punishment, of Claire and Gibson, who prosecute this appeal.

Among several other complaints, they charge error in the ruling of the trial judge, who sustained an objection to a question propounded by their counsel to a State witness, agun-smith, who liad heen interrogated by the District Attorney concerning the purchase of a pistol from him by Louis Claire, and who liad been requested “to state all the facts connected with the purchase of said pistol.”

On cross-examination by the defense, the witness had stated that, on the 26th of December, 1887, (five days before the date of the homicide), Claire, in purchasing the pistol, liad requested witness to load the same, stating that he needed it to “ protect his life against the attack of Tom Fanning and his crowd on the front.” The witness had also stated that, two days before, “ Fanning liad got witness to load a pistol for him.”

Whereupon counsel for the accused “ asked the witness if said Fanning did not state at the time he got said pistol loaded, that his object n so doing was to attack Claire.” On objection by the State, the question was .overruled by tlie court “ on tlie ground that the same was irrelevant.”

Although tho bill does not mention the object for which the State had introduced the evidence of that witness, it is clear to our mind that the purpose was to connect the purchase of the pistol with tho homicide, and thus to show malice or premeditation on the part of Claire. And such was the manifest tendency of tho evidence tlms brought out.

In order to avert its intended effect on tlie minds of the jury the defense then propounded the questions which elicited the information that Claire had stated that he needed the pistol purchased from the witness for his defense against Panning’s attack, and further that Fanning had had a pistol loaded by the same gunsmith two days before. Those questions had met with no objection from the State, doubtless because they were considered as relevant by her counsel.

But when the accused proposed to go a step further on the same line of investigation, and attempted to bring out additional facts intimately connected with those which had gone to the jury without objection, the investigation was abruptly closed, and he was tlms denied the right of eliciting all the facts connected with the transaction, and which could have been of material importance to his defense.

If it was competent for tho State, to show malice in Claire in connection with the homicide for which he was on trial, hy proving that he had, a few days before, purchased a iristol and had liad it loaded, and if it was competent for him to prove by tlie same witness, what statements he had made to the witness touching tho object which he then contemplated, and also to show that the party for whom lie intended the weapon, had been preparing himself for combat, it was undeniably competent for the defense to prove the statements which the same party had made at tho time touching a contemplated attack on tlie accused.

In proving tho purchase and tlie loading of a pistol by Claire, a few days before the homicide, tho intention of the State was to show to tho jury that Claire had then begun his preparations to slay the deceased.

It was an effectual mode of negativing' that conclusion, to show that the accused apprehended well founded danger from another source, and that his hostile preparations were intended to meet that danger. And under such a si lowing the jury would have been the sole judges of the legal effect and of the weight of the testimony, both on the. question of malice., and on tho rebuttal thereof. It was, therefore, error on the part of the trial judge to exclude the proffered testimony from tlie, consideration of the jury. The door to that line of inquiry had been opened by the State herself, hy introducing the testimony of the witness who had sold the pistol to Claire and had loaded it for him at his request, and by-asking the witness to state all the facts connected with the purchase of the pistol;” and the ends of justice required that the defendants should have been allowed to pursue the inquiry thus inaugurated by the State.

It was unquestionably competent for the prosecution to attempt to prove malice and premeditation on the part of the accused, and testimony 'tendered to show preparation by one of them, was relevant-to the end proposed, hence proof of the purchase of a pistol by one of the defendants was legally admissible; but it was equally competent for the, latter to negative the intended effect of the evidence thus introduced, particularly by interrogating the same witness, and by obtaining the recital of all the circumstances connected with the transaction introduced,, and relied on, by the State. And it hence follows that he was entitled to submit to the consideration of the jury any facts, connected with the transaction, tending to show that in his preparations for a conflict, he was anticipating an attack which he had the undisputed right to repel with force and arms. He was also entitled to the effect which such facts could have had on the minds of the jury in disconnecting the preparations made by him for a combat from the homicide with which he was charged, at least to the extent of rebutting malice or premeditation in the perpetration thereof.

The foregoing conclusions rest not only on sound principles of reason and law but they find ample sanction in authority. The rule has -been thus formulated by Wharton:

Evidence of preparation is always admissible for the prosecution, evidence to explain it is always admissible for the defence.” Wharton’s Criminal Evidence section 753.

In a case quite anaolgous to the point of the present discussion, in which the State had introduced testimony to show that the accused had applied to the witness for a pistol, stating- at the time that he was in great trouble, the Supreme Court of Mississippi held that it was error on the part of the trial judge to exclude testimony to show that the accused was at the same time in trouble with another person besides the deceased. The syllabus on the point reads as follows: “ On a trial for murder, the State having introduced testimony to show antecedent malice and previous preparation for the combat, the accused has the right to introduce testimony tending to show that such preparation was made in anticipation of an expected attack upon himself, and the exclusion of such testimony is error.” Long vs. State, 52 Miss. 23; see also Mavrock vs. State Texas Reports 7 p. 269.

In brief, counsel for the State make the point that the question was amenable to the further objection that it was not in reply to matters brought out on the direct examination. But reference to the bill shows that the objection was not urged below, hence it cannot be considered hero. The sole objection made on this point, and the only one considered by the judge, was that the question was irrelevant. It is therefore clear that we cannot attempt to review a matter which was not discussed below, or passed on by the trial judge.

Under the foregoing views wo feel constrained to remand the case, and we find it unnecessary to discuss other points presented in the briefs of counsel.

It is, therefore, ordered, adjudged and decreed that the sentence of the District C'ouit be avoided, that the verdict of the jury be quashed and set aside, and that the cause be remanded for further proceedings according to. law and to the views herein expressed.


author: Fenner, J. Fenner, J.

text:
    No. 10,093.
    Armand Heine et al. vs. Edwin T. Merrick et als.
    1. In an injunction suit, if tlie facts alleged are found to be true; if tlie legal rights claimed flow from a correct application of tlie law to those facts, and if the plaintiffs had grounds to apprehend that defendants would impede or hinder them in the exercise of those rights —the injunction was properly issued and should bcmaintained.
    2. The right granted to one co-proprietor of a wall in common, by C. C. Art. C82, to demolish the old wall when found insufficient to hear the additional height and weight of a proposed new structure, and to build a new and thicker wall adequate to support the new building as well as that of the neighbor, at liis own expense, and taking the additional thickness from his own estate, is an absolute right and not subordinated to any condition of previous consent by the neighbor.
    3. The provisions of R. C. C. Art. 685 requiring the consent of the co-proprietor or a decision of judicial experts in certain cases do not apply to the case arising under Articles 681 and 682.
    4. The right to build the now and thicker Avail involves and includes the right to demolish the old Avail, to establish a sufficient foundation for the neAV one, to disturb the neighbor’s enjoyment, and to enter upon his property to the extent necessary for the exercise of the principal right. Vbi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest.

    5. No laAVforbids an OAvner from erecting one building on tAvo lots; and although his old building rested only on one lot, yet if ho proposes to erect a uoav one on two lots, he may do so, and may rest it on the old Avail if sufficient, or may demolish it and build a thicker one, according to Art. 682.
    6. The provision of C. C. 675 restricting the right of one co-proprietor to rest a Avail in common more than nine inches on the land of his neighbor, applies to the wall itself and not to its foundation, Avliich, in this city, must necessarily be wider tban the Avail.
    7. The right to build a thicker wall under Art. 682, includes the right to rest it on the centre of a sufficient foundation, and although tlie additional thickness of the Avail itself must be taken from his own soil, the foundation must necessarily extend equally on each side from the centre of the wall.

      8. The concluding proviso of Art. 684 is, an obvious mistranslation of the French Article intended to be reproduced, and, as it stands, makes* the whole article meaningless and absurd. The necessity of correcting the error has been heretofore noticed by this Court. Murrell vs. Fowler, 3 Ann. 166.
    0.The requirement of Art. 675 that the wall in common should be built in stone or brick, applies only to the wall and its foundation proper, and does not forbid the uso of heavy timbers to make a firm and smooth basis on which to build the brick foundation, any more than it would apply to wooden piles driven for the same purpose.
    10. When one proprietor exercises the right granted by Art. 682, his neighbor is bound to bear, without indemnity, the inconvenience and injury consequent thereon so far as they are inseparable from the exercise of the right. Neminem Icedit qui jtt/re mo utitivr.

    11. On the other hand, the proprietor who exercises the right is bound for every exaggeration of these necessary damages which lie could, by diligence, have averted. He is bound to reduce to a minimum the injury and inconvonienc occasioned to his neighbor; to occupy his property to the least extent and for the shortest time consistent with the exercise of his right; and to hasten, by all practicable moans, the completion of the work and the restoration of his neighbor to the full enjoyment of his own.
    12. He is, moreover, bound, at his peril, to replace the neighbor, at the end of the work, in a position every way equal to that which he occupied at its beginning, and to furnish him a new wall fit and adequate to support his building.
    13. For all shortcomings in these respects the neighbor is entitled to fair and full reparation in damages.
    APPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.

      Gluts. JE. Selimidt for Plaintiffs and Appellants:
    1. One of the owners of a party wall, or wall in common, lias the right, if he desires to put up, on his own ground, a new and liigher structure, which the wall would be inadequate to support, to tear down the wall and build one, in its stead, both higher and thicker, taking the additional thickness from his property. C. C. 582 (678). This he can do without the consent of his neighbor, co-owner of the wall, bat in so doing must proceed ■with due care and attention. Peirce vs. Musson, 17 L. 294; Dorville vs. Amat, 6 Ann. 566; Gettwerth vs. Hedden, 30 Ann. 30.
    2. He has the right to enter on the neighbor’s premises for the raising or reconstruction of the wall, to deposit materials there and do such work as may be proper or necessary. Durant on, Yol. Y, Ho. 316; Pardessus, Serv., Yol. I, Ho.227. As to how far such a right may bo*claimed, when the wall is not a common one, see Demolombe, Ycl. XI, Hos. 421, 422, 434.
    3. If the neighbor refuses to allow Mm to take down and rebuild the wall, and threatens to prevent his so doing, he is not bound to bring suit against him to obtain the prior authorization of a Court of Justice, but may at once apply to a competent tribunal for a -writ of injunction forbidding the neighbor to interfere with him in the proper exorcise of his legalright. C. P. Art. 296.
    4. The writ of injunction issues on the principle of a clear and certain right to the enjoyment of the subject in question, and an injurious interruption of that right Which, on just and oquitable grounds, ought to be prevented. Hilliard on Injunctions, 19.
    5. That writ may issue, both in its prohibitory and mandatory forms, to either prevent, or forthwith remove, the obstruction to the exercise of a legal servitude. 7 P. 442 ; 31 Ann. 497.

      6. There is in Louisiana no law entitling one to such prompt or summary provisional proceedings in like cases, as are provided by Aits. 806 to 811 of the French Code of Practice ; and nothing justifies the judicial importation into our legal system of so-called analogous but much slower, proceedings via ordinaria, which would virtually render the exercise of the right so tardy as to mako it nugatory.
    7. When one of the owners of the wall in common rebuilds it anew entirely, taking the extra thickness from his own ground, he is at liberty to make it support any structure on his side, no matter how much wider j t may bo than his former building which rested on the old party wall, provided the new wall is adequate to hold the new building. The very purpose of the law, in requiring the reconstruction of the wall entirely anew in the manner it indicates, is to compel the roconstructer to furnish, at his own expense, and by the additional use of his own ground, the excess of carrying power necessitated by the new structure, so as to prevent any impairment of the neighbor’s right of servitude in the party wall; and when the law’s provisions in that regard are complied with, there can be no pretext for holding .that such new structure, because wider than tlie old one, aggravates, in any manner, the neighbor’s right of servitude.
    8. The ownership of a wall in common is not subject, as to its effects, to the rules governing the co-ownership of an undivided thing, on which neither co-partner can mako any innovation without the consent of the other. Either of the owners of tlie wall has the right of obtaining from it all the benefits it may yield in conformity -with its usual destination, even though it should become necessary to make innovations and alterations in the wall, such, for instance, as raising it, or building upon it, etc. Demolombe, Yol. XI, Ho. 310.
    9. Indeed, the party who has put up the new higher and thicker wall, is considered as the sole owner ■ of so much of the wall as ■ exceeds the former one -in height and .thickness. Marcad6 on Art. 659, C. H.
    10. ‘When the law imposes upon him for whose needs a higher and thicker wall is required, the obligation of rebuilding the wall anew, it evidently requires the new wall to be built on the neighbor’s side on the very same line to which the old wall extended. Such higher and thicker wall necessitating broader foundations than the former one, those foundations must extend, on either side, to an equal distance from the centre of the wall; otherwise, as admitted by all the oxperts in this case, the centre of gravity of tlie wall would not bo the same with that of its foundation, and the wall would not stand. Hence, the necessity of projecting the foundations of the new and larger wall further on the neighbor’s soil than the distance to which those of the old and smaller wall extended. “He to whom a servitude is due, has the ‘right to make all tlie works necessary to use and preserve the same.” O.-C., Art. 772 (768). Vbi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest.

    11. By foundations are .meant the masonry or brick-work laid in the ground up to the first or ’ ground floor, for the purpose of resting a structure thereon. Rendu, Dictionnaire des • Constructions Ho. 2125.
    12. The foundations of a building must be proportioned to its nature, to the use to be made of it, and to the quality of the soil. lb. Ho. 2126.
    13. As was said in Murrell vs. Fowler, 2 Auu. 166: “It is an obvious fact that a high wall cannot be erected on the line of a lot on our alluvial soil without the projection of the foundation on the adjacent land,” And the law compelling him who rebuilds the wall to eroct it on that line, it is equally obvious that no indemnity for such projection can bo claimed or allowed.
    14. Article 684 (680), C. O., which provides how a man whose property adjoins a wall, built either half on his grouud or entirely on his ¡neighbor’s, may make it a wall in common, has been correctly translated from the French text of the Code of 1825, in so far as rolates .to its last part, viz: “If the person who has built the wall has laid the foundation entirely upon liis own estate.” For, this would require the extremity of the base of the foundation to reach tho neighbor’s line, while tho wall itself would therefore be some two or three foot distant from the lino, and would not, consequently, adjoin tho neighbor’s lot. The Eronch text is a literal transcript of Arc. 661, C. H., with tho addition of the words “ sicelui qui a fait le mur Va fait porter entihrement sur son heritage," i. e., “ if the one who has built the wall has made it* (tho wall, not the foundation) bear entirely on his own land,” an addition rendered necessary by the fact that the Erench Cododoes not, like ours, give the right of placing one-half on the boundary wall of a town lot on the adjoining neighbor’s lot. See 11 Ann. 467. This mistranslation was noticed in Murrell vs. Eowler, 3 Ann. 160.
    15. He who exeroises a legal right, qui jure suo utitm\ cannot'be responsible to bis neighbor for the natural consequences thereof. Thus, if in lawfully taking down and rebuilding a wall in common, his neighbor is thereby subjected to inconvenience and tho diminution or the loss of rents, he is not liable therefor in damages to him, unless he should fail to take such precautions'as are usual to protect the neighbor’s house from unnecessary injury, or should delay the reconstruction of the wall beyond the time reasonably required to set it up properly. Demolombe, Yol. XI, Ho. 406; Aubry vs. lian, Yol. 2, 4th edition, § 222, p. 427, and, in fact, nearly all the authors, as Daurent (Yol. 7, Ho. 561, q. 645), who is of a contrary opinion, admits.
    16. Evon though the tenant of the neighbor became, owing to the reconstruction of tho yall, entitled to a reduction of the rent, or even to an annulment of the lease, the party rebuilding the wall would not he liable for the loss thereby occasioned to the neighbor. Demolombe, Aubry & Ran (loe. cit.)¡ Dorville vs. Amat, 6 Ann. 566; Gettwerth vs. Hedden, 30 Aim. 30.
    17. The Erench text of the Article 673 of the Code of 1825 is taken from the Hapoleon Code. It is as follows: “Tout mur servant de séparation entre Mtiments jusqu'á Vhéberge, ou entro cours et jardins, etc., sera prósumó mitoyen, s’il n’y a preuve, titro ou marque du contraire.” This was incorrectly translated into English (and the error was not corrected in the present Article 677) as follows: “Every wall being a separation botwoon buildings as high as the upper part of the first story, * shall bo presumed to be in common if there be no title, etc., to the contrary.” The obvious mistake in the translation is in regard to the word Vhcberge, which might have been translated “the upper part of the last story,” but certainly not of the first story, if we begin the counting of tho stories from the ground. This is evident from the definition of the word Vhéberge, clearly given by Rogron, in his notes on Article 653, C. H., as follows:
    ‘ ‘ Jfhéberge — This is the name given to the place where two -buildings established on the same wall begin to separate, or, in other terms, the highest point of the lower roof. JSébergc signifies in our ancient language, eove)\ shelter. The owner of the less elevated building liad no interest in building beyond the height of his own structure, the surplus therefore belongs to the neighbor.”
    18. On tho 23d July, 1883 — a few days beforo the restoration of their building — the defendants filed their second roconventional demand, complaining, inter alia, that plaintiff’s building encroached with its ornamental front several inches on the sidewalk, to their injury, and that of the public generally. This complaint is made, although defendants’ own building encroaches still more on the sidewalk than plaintiffs’. If defendants thought they would have been injured by such projections, the law indicated the remedy. C. C. Arts. 857, 858. Having neglected to make timely opposition, they cannot now ask the destruction of the work. C. C. 862. Besides, malitiis non est indulgendum.

      Merrick & Merrick for Defendants and Appellees:
    1. Ownership is the right by which a thing belongs to some one in particular to the exclusion of all others. C. C. Art. 488 (480).
    2. The right of servitude to rest a wall in commoh nine inches on the property of an urban neighbor being in derogation of the right of ownership is stricti juris. Hoggatt vs. Hail-way Co., 34 Ann. 627; McIntosh vs, Duncan, 12 Ann. 787; C. C. 765.
    3. Ho who builds above or below his soil adjoining the property- of his neighbor is bound to build in a perpendicular lino. C. C. Art. 673 (669). Cvjus cst solus cjus est db inferno usque ad coelum.
    4. The right to use the property of an urban neighbor is limited (among things) by the proviso that the whole thickness of the wall shall not ‘ exceed eighteen inches, ” not ‘ ‘ including plastering.” C. C. Art. 675.
    5. This property of another to the extent of nine Indies wide, the length of the wall condemned to servitude, is only condemned to boar so much and no more burden than it is capable of sustaining.
    If a party wishes to build a wall of a weight beyond the capacity of that quantity of soil to sustain lie must build on his own land, or bargain with his neighbor for an additional servitude on his neighbor’s land. C. C. Art. 684. The taking of four feet of the neighbor’s land, against his consent for this purpose, is a trespass.
    6. The party claiming the right to rest his wall nine inches on his neighbor’s land cannot in violation of another condition of the article put two feet or twenty-five inches wood work in his wall as a foundation. Hor can he put one foot two inches of wood foundation where three or four inches in thickness of plank would make a better surface for the brick work. C. O. 675.
    7. "Where a building of unusual magnitude sinks so as actually to wreck the two adjoining buildings, the opinions of experts as to the goodness of the foundation of the walls will be of no avail to relieve the owner from responsibility. Parties who do not take the usual procautions to guard against damage to adjoining proprietors have no claim to appeal to courts of justice to be relieved from the consequences of their own wilfulness and folly.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiffs and defendants are owners of contiguous properties on Canal street in this city which were separated by a wall in commou.

Plaintiffs, having entered into a contract with the Pickwick Club to erect for its use as lessee the splendid structure which now exists at the corner of Canal and Carondelet streets, found the existing party wall insufficient to support the increased height and weight.of their proposed new building, and that its demolition and reconstruction would be necessary. This, of course, involved an invasion of the property of defendants and a disturbance of their enjoyment.

Sundry interviews took place between the parties, having in view an amicable adjustment of their respective rights, concerning the precise tenor of which the testimony is contradictory. Without discussing these contradictions, suffice it to say that the interviews resulted in an entire failure to reach any agreement; that the defendants made sundry claims to compensation, which were disallowed; that their consent to plaintiffs’ entry upon their promises was not given; that plaintiffs’ right to make such entry, without consent, was not acknowledged; and that plaintiffs liad reasonable grounds to .apprehend that any attempt to make such entry would be met by resistance, either physical or legal.

Under these circumstances and under the pressure of their important contract with the Pickwick Club, which did not brook delay, plaintiffs resorted to the present suit for an 'injunction.

In their petition they set forth substantially the existence of the old party wall; their intention and contract to erect on their property a larger and higher structure •, the insufficiency of the old wall to sustain such structure; their legal right to demolish it and to erect in its stead a new, stronger and thicker wall, capable ofsupporting both their own and the building of the defendants, the same to be built at their own expense, and the additional thickness thereof to be taken from their own soil; the necessity of entering upon defendants’ premises in order to demolish the old wall, to build the new one, and to excavate for the purpose of laying a sufficient foundation; the refusal of defendants to consent to or permit such entry, and their threats to resist it without indemnity previously agreed upon and paid; the injury which would result to them from being impeded in the exercise of their legal rights ; and on these allegations they applied for and obtained an injunction restraining defendants from impeding or obstructing the petitioners in the demolition of the party wall * * and in the putting up of a new wall of sufficient strength to support petitioners’ new structure and the building No. 142 Canal street, and from interfering with the petitioners or their agents and workmen in going upon the premises No. 142 Canal street to make the necessary excavation for the new foundation to be laid for said wall and for putting up the proper shoring and weatherboarding and doing such other work as may be necessary for the support and protection of the building No. 142 Canal street during the process of demolition and reconstruction of said wall.”

Defendants answered putting at issue plaintiffs’ right to the injunction, and also made a claim in reconvention.

This reconventional demand has been enlarged by several supplemental petitions. All the matters were tried together and resulted in a judgment dissolving the injunction and rejecting plaintiffs’ demand, and in favor of defendants on their reconventional demand in the sum of four thousand dollars, as actual damages with a non-suit as to their claims for prospective damages.

From this judgment the plaintiffs have appealed, and the defendants have filed answer in this court asking for an increase of damages and 'additional relief.

We will consider, first, the judgment on plaintiffs’ demand for injunction ; second, that on the reconvontional demands.

I.

We are unable to agree with the learned defendants in their views.as to the scope and operation of the injunction applied for by plaintiffs. They seem to regard it as having effect absolutely to seal their lips and to tie their hands, and to authorize the plaintiffs, as long as it remained in force, to enter upon their property and there to do whatever it pleases them according to their own sweet will.

If this were correct, of course, such an injunction would have been an outrage and the propriety of its dissolution could not be questioned.

But from the careful analysis above made of the averments of the petition and the terms of the injunction, it fully appears that plaintiffs simply asserted their legal right, upon the facts alleged and the law applicable thereto, first to demolish the old wall; second, to erect, in its stead, a new wall having sufficient strength and thickness to support both their now structure and that of defendants, the same to be built at their own expense and the additional thickness to be taken from their own soil; third, to provide for said new walla sufficient foundation; and fourth, for the foregoing purposes to enter upon defendants’ premises and use the same as far as necessary. To the extent of restraining defendants from hindering them in the exercise of the rights asserted, the injunction went; but no whit beyond. As to the details and mode of execution of the work; as to the extent and duration of their entry on defendants’ premises; as to the location and sufficiency of the new wall, and as to all kindred matters, the parties stood outside of the injunction, under the sole and equal protection of the law, and wore alike untrammelled in the vindication of their legal rights.

If the facts alleged are true; if the legal rights asserted flow from a correct application of the law to those facts; and if the plaintiffs had grounds to apprehend that defendants would impede and Mnder them in the exercise of those rights, then the injunction was piropierly issued and should have been maintained; otherwise it would not.

1. As to the facts, there is no dispute that plaintiffs and defendants were owners of contiguous p>rop>erties having between them a wall in common; that plaintiffs desired and had actually contracted to erect a new, heavier and higher structure on his property; and that the old wall was insufficient to support the additional weight which would be imposed upon it.

2. On these facts, what rights did the law accord to plaintiffs f Let tlie Code answer. Art. 681 provides: “Every co-proprietor is at liberty to increase the height of the.wall held in common, but he alone is to be at the expense of raising it, etc.” And Art. 682 declares: “If the wall held in common cannot support the additional weight of raising it, ho who wishes to have it made higher is bound to build it anew entirely, at his own expense, and the additional thickness must be taken from his property.”

The foregoing Articles are literal translations of Articles 658 and 659 of the French Code.

It seems to us that these textual provisions distinctly affirm the existence of every right asserted by plaintiffs in their petition. The right to build a new and thicker wall, adequate to the support of their new structure as well as of defendants’ building, at their own expense, and taking the additional thickness from their own property, necessarily involves and includes the rights to demolish the old wall, to establish a sufficient foundation for the new and thicker wall, and to disturb the defendants’ enjoyment and to enter upon their property for the purpose and to the extent necessary to exercise the principal right. Ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest. No other rights were asserted in the petition and with no other were the defendants restrained from interfering.

3. We have already expressed our opinion that plaintiffs had sufficient grounds to apprehend that defendants would impede or hinder them in the exercise of their rights, and it is needless to enforce it by further discussion of conflicting testimony, which, notwithstanding- its contradictions, we fully believe to be sincere and honest on both sides.

Although many of the defendants’ objections were undoubtedly levelled at the plan of construction proposed, yet there was never any acknowledgment of plaintiffs’ rights to disturb their enjoyment or enter on their premises for any purpose without their consent; and the persistent demand for previous indemnity as a condition of such consent, implied a claim of right to that effect for which the law affords not the slightest support.

An attempt to enter the premises of which the defendants were owners and proprietors, for any purpose, however lawful, against their consent and over their protest, might well have encountered resistance and would, in any event, have been a high-handed measure; and we think the learned counsel of plaintiffs gave them sound- advice in suggesting that they should put themselves under the protection of the law through the injunction proceeding.

The learned judge a quo has taken the view that plaintiffs’ right could not have been lawfully exercised without the previous assent of the defendants and that, this being withheld, plaintiffs were bound to resort to some competent tribunal to settle their disputed right before proceeding in its exercise.

We can discover no warrant in the law for such a doctrine. The rights conferred upon co-proprietors by Articles 681 and 682 are absolute and unqualified; and when a right is conferred without qualification, its exercise, in absence of express provision to that effect, is not subject to any condition of consent by other persons; and authority conferred by law is amply sufficient without the necessity of obtaining additional authorization from a court. The possessor of such a right is free to exercise it' and if resistance thereto is made or threatened, he has need of no other judicial assistance except that invoked in this case to restrain and prevent such interference. See Pierce vs. Musson, 17 La. 394; Dorville vs. Amat, 6 Ann. 566; Gettenworth vs. Hedden, 30 Ann. 30.

The Codes of Louisiana and France both contain the following article : Neither of the two neighbors can make any cavity within the body of the wall held by them in common, nor can he affix to it any work without the consent of the other, or without having, on his refusal, caused the necessary precaution to be used, so that the new work bo not an injury to the rights of the other, to be ascertained by persons skilled in building.” R. C. C. 685; C. N. 663.

The French Code of Procedure contains certain special provisions to carry this article into effect by judicial proceedings, but although there are differences of doctrinal opinion on the point, the French Court of Cassation has repeatedly hold that the article is not aqjplicable to the cases of raising or reconstructing the wall in common as provided in R. C. C., Articles 631 and 682, and the corresponding Articles, 658 and 659 of the French Code; that high tribunal deciding that the rights granted by those articles are absolute and subject to no other conditions than those contained in the articles themselves; and that the co-proprietor desiring to exercise them is not bound to obtain in advance the consent of the neighbor, or, on his refusal, to cause a settlement by experts of the measures necessary to prevent the new works from doing injury: to this case Article 662 C. N. (R. C. C. 685) has no application, that only providing for the case of cavities and attachments to the body of an existing wall.” Cass. 18 April, 1866, p. 66, 1175 ; Cass. 11 April, 1864, p. 64, 776; Cass, 18 August, 1874, p. 74, 1192; Paris, 8 July, 1858, p. 58, 881; Toulouse, 22d Nov., .1864, p. 65, 462; 5 Duranton No. 335; 7 Laurent No. 559.

We find no more merit in the ground taken by the district judge that the right asserted by the plaintiffs was excessive because it was an exaggeration of the servitude belonging to him. This, is based on the ground that plaintiffs’ property adjoining that of defendants’ consisted of two lots between which, in their old building, there existed a dividing-wall which supported the adjacent structure farthest from defendants, so that the party wall between defendants and plaintiffs only owed a servitude in favor of the lot immediately adgacent and none in favor of the other; and that, hence, plaintiffs had no right to throw upon that wall the support of a building embracing both their lots. Certainly there is no law forbidding an owner from erecting oue building on two lots. If plaintiffs’ lots had been vacant, they would have had the right to, construct such a building and to use the party wall for its support, and we can see no reason why the failure to exercise the right in this manner originally should operate any forfeiture of it.

Eor these reasons, we hold that plaintiffs’ injunction was properly issued and that there is error in that portion of the judgment appealed from which dissolved it.

II.

The successive reconventional demands of defendants embrace a variety of complaints and of reliefs — some of the latter so radical as to require an entire demolition and reconstruction of the party wall which has been built by plaintiffs.

This demand is based chiefly on three grounds, which will be discussed successively, viz:

1. Defendants claim that plaintiffs have violated their rights of property, without warrant of law, by extending the foundation of the now wall on their land beyond nine inches and beyond the width of the old foundation.

This contention is based on defendants’ construction of Articles 675 and 682 of the Code. The Art. 675 reads: He who first builds in the cities and towns, or their suburbs, of this State, in a place which is not surrounded by walls, may rest one-half his wall on the land of his neighbor, provided he builds with stones or bricks at least as high as the first story, and not in frame or otherwise; and provided the whole thickness of this wall do not exceed eighteen inches, not including the plastering, which must not be more than three inches.”

Article 682 has already been quoted, and it obliges the co-proprietor who requires a higher and thicker wall to take “ the additional thickness ” entirely from Ms own property.

Hence, say the defendants, the only warrant which the law gives to one proprietor to invade the property of his neighbor for the purpose of establishing a wall originally is limited to the extent of one-half of an eighteen inch wall, or nine inches, and that if he wishes to build a thicker wall he must take all the additional soil required from his own estate; and, they add, that these provisions, being in derogation of the rights of ownership, must be strictly construed and must not be extended beyond the very letter of the law.

We concede that these provisions are to be strictly construed; but such strictness cannot be carried to the point of attaching an impossible meaning to the law or rendering it practically nugatory.

Wo might assume as self evident two physical facts, both of which are, however, fully proved in this record, viz: First, that in this city, and in most portions of this State, a wall, in order to support the weight of buildings, must necessarily be provided with a foundation considerably wider than the wall itself; second, that in order to secure the benefit of the foundation the wall must rest upon its centre.

We are bound to assume that the Legislature was aware of such facts and legislated with reference to them.

Hence when the Code authorized the proprietor to rest one-half of an eighteen inch wall on the land of his neighbor, it necessarily includes authority to rest such wall upon the centre of a foundation adequate to support it and, therefore, extending a greater distance upon the land of each.

So in the case arising under Article 682, when the co-proprietor is authorized to replace the old wall in common by a new and thicker one, he is required to take the “ additional thickness ” of the wall from his own estate; but he is still authorized and bound to rest the new and thicker wall upon the centre', of an adequate foundation, and as a thicker wall requires a proportionately wider foundation, this necessitates a further equal extension of the latter on the land of each proprietor.

To hold that the entire additional thickness of the foundation must have been taken from plaintiffs’ land, taken in connection with the physical necessity of resting the wall on the centre of the foundation, would have thrown the whole superimposed wall entirely beyond the defendants’ line, and would have left nothing in community between the adjacent properties except a part of the foundation.

We have examined, in this connection, Article 684, the concluding proviso of which is so much insisted upon by defendants. That proviso has already been characterized as an obvious mistranslation of Article 661 of the French Code, which it was intended to reproduce, and has been practically nullified by this Court. Murrell vs. Fowler, 3 Ann. 166.

It is, indeed, so absurd and so incongruous that it is difficult to see bow any other view coirld be taken of it. The article deals with the rights of a “ x>roprietor adjoining a wallbut it is clear that if the foundation is laid entirely upon one estate, the wall must necessarily be wholly removed from the contiguous estate, and the proprietor of the latter would not adjoin such wall at all, and could not have the right to invádelas neighbor’s estate to reach the-wall and make it common. The right of a proprietor to maintain exclusive ownership of a wall built entirely within his own line and away from that of his neighbor and not invading the latter’s property even in the foundation, seems too evident and fundamental to permit it to be frittered away by an accidental blunder of expression resulting from a mistranslation of the provision of the French law intened to be reproduced. But it might suffice to say that, in any event, the article applies to an entirely different case from those arising under Articles 675 and 682, and is entitled to no weight in construing the latter.

We conclude, therefore, that the plaintiffs had the legal right to extend the foundation equally on either side of its centre to the extent necessary to make it sufficient to support their new and thicker wall. It cannot be reasonably urged that the foundation.is unnecessarily wide, for ono of the most serious complaints is that, even with its present width, it is inadequate to sustain imoperly the weight of the superincumbent wall.

2. Defendants urge that idaintiffs have exceeded the rights invested in them by law because they have used certain wooden beams in the construction of the foundation, in violation of the proviso of Article 675, which reads: “provided he builds with stones or bricks at least as high as the first story, and not in frame or otherwise.”

The wall and the foundation proper are built entirely of brick, and the heavy wooden timbers were used only to form a firm and smooth basis for the foundation. Their use for this purpose is common and approved by expert opinion, and it no more violates the proviso above quoted than would the driving ’of wooden piles for the same purpose, which is the measure which defendants themselves contend should have been adopted.

3. The final ground is that the wall constructed by defendants is so radically and irremediably vicious and unfit to serve the purpose of supporting the building of defendants, that its demolition and proper reconstruction is the only relief adequate to secure defendants’ rights.

There is no doubt that plaintiffs wore bound to replace the old party wall which they demolished, by a new one sufficient to support the building of defendants; and that the wall actually constructed lias not thus far served that purpose. But the evidence in the case does not satisfy us that the injury done to defendants by the defect in the wall cannot be sufficiently repaired by a proper allowance of damages.

In pursuing the plan of construction adopted, plaintiffs acted under the advice of competent architects and builders, and, although defendants objected, they never resorted-to the remedies allowed by the Code for the stoppage or prevention of the erection of new works. Rev. C. C. B. II., Title VI.

The only judicial interference they ever invoked during the progress of the work was by a rule taken in this case, which did not suggest any stoppage or prevention of the work, but only asked for an increase of the injunction bond as security for resulting damages, and even this rule was never pressed to trial but remains to this day without action.

Under the view we have taken of the scope and purposes of the injunction, these remedies were open to defendants, and after thus permitting the construction to be completed without molestation, the case would have to be an extreme one which would justify so heroic a remedy as the destruction of the work. We are not satisfied that such a remedy is at all necessary. The wall has proved to be a sinking wall, undoubtedly injuring defendants’ building; but it has not prevented its occupancy and enjoyment. It has always been rented at bill rates, and tlie injury is susceptible of reparation in damages. It may well be hoped that the future sinking of the wall may be arrested and may perhaps cease altogether.

Various other amendments of the judgment aiipealed from are prayed for by defendants. We have considered them, but with the simple statement that they do not meet our approval, we may dismiss them all except that for the increase of damages, which, on the other hand, the plaintiffs claim should be reduced.

The settlement of the questions here involved will be promoted by a succinct enunciation of the general principles by which the rights of the parties are governed.

In demolishing the old and building the new party wall, under the conditions fully proved in this case, plaintiffs exercised an absolute right conferred upon them by the law. Under the maxim nemmem Icedit qm juo-e suo utitwr, they were not bound to indemnify their neighbor for' any inconvenience or injury necessarily occasioned by the exercise of the right. Such a -work must of necessityincommode the neighbor. It cannot bo prosecuted without an entry upon and partial occupation of his premises. It must disturb his enjoyment and that of Ms tenants. It may give ground for the annulment of his leases or for a diminution of rents. It may prevent the renting of his property. It may injure him in many ways. But so long and in so far as these injuries are inseparable from the exercise of the right, the lieighbor is bound to submit to them and can claim no indemnity therefor.

Such is the well settled jurisprudence of France under like codal provisions. 5 Duranton, No. 331; 11 Demolombe, No. 406; 2 Aubry & Rau, § 222; 1 Pardessus, No. 174.

Considering that in the exercise of his right the proprietor, who demolishes and reconstructs the party wall, acts exclusively in his own interest and for his own advantage, and against the wish and interest of his neighbor, equity might well question the justice of imposing upon the latter alone the burden of such serious damage and inconvenience; and, indeed, such eminent jurists as Toullier and Laurent impose strong limitations upon the broad doctrine above enunciated. 2 Toullier, p. 391; 7 Laurent, No. 562.

They are overborne, however, by the vast weight of doctrinal and judicial authority, as well as by correct principle; because, however iust the limitations, it was for the law-maker to impose and define them, and, not having done so, courts cannot suppíy the defect.

The judicial duty in such a case was never better defined than by the court aver which one of the defendants so ably presided: “It suffices for us to say that, when statutes are free from ambiguity and absurdity, we are not called upon to investigate their expediency. Under a government of written laws, the judiciary is but the interpreter of the legislative will. The reform of the law, the redress of public grievances flowing logically from existing statutes, are high prerogatives which belong to the legislative domain.” Johnson vs. Bloodsworth, 12 Ann. 702.

But, on the other hand, plaintiffs are responsible for every exaggeration of these necessary damages, which, by any diligence, they could have prevented. They were bound, by every means in their power, to reduce to a minimum the injury and inconvenience occasioned to their neighbor; to occupy his property to the least extent and for the shortest time consistent with the exercise of their right; and to hasten, by all practical, means, the completion of the wall and the restoration of the neighbor to the full enjoyment of his property.

They were, moreover, bound, at their peril, to replace the neighbor, at the end of the work, in a position equal in every respect to that which ho occupied in the beginning, and to furnish him a wall fit and adequate to support his building without injury.

The considerations already developed indicate the strictness with which courts should enforce these obligations. These obligations have not been fulfilled in this case.

Defendants were deprived of the full enjoyment of their property for nearly ten months at a proven loss of rent of $220 per month.

We are perfectly satisfied that this was an unnecessarily long time; that it was consumed only because plaintiffs, consulting their own interests rather than their duty to defendants, chose to carry up their building as a whole; and that they might well have advanced the party wall much more rapidly and completed it to the height of defendants’ building in, at most, one-half the time, without subjecting themselves to any inconvenience or injury which they were not bound to incur for the benefit of .their neighbor.

We, therefore, hold them liable for five months’ rent, or eleven hundred dollars. The wall which was constructed proved to be a sinking wall. It began to sink immediately after its completion and had continued to decline gradually, though at a diminishing rate. While this sinking, being approximately equal on all sides, has not greatly injured their own building, it has been very injurious to the adjoining buildings.

Prom the moment that defendants recovered possession of their property, they have been subjected to a succession of annoyances and repairs. Their walls have been cracked; at one point their building was wrenched from the opposite adjoining wall in such manner as to be dangerous and to attract the attention of the city authorities; windowsills have been broken; doors have fallen out of plumb; plastering has been continuously breaking and falling; floors have been detached from the walls. Defendants have had no peace from the complaints of tenants and have been subjected to the necessity of constant repairs. These have cost an actual outlay of $383.

But the repairs done are mere patchwork. Their patched-up building is not what it was before these dilaindations occurred. To restore it to its previous condition; to replace cracked walls by sound walls; to straighten and repair its woodwork; to readjust its lines and levels, would involve a large and expensive work of reconstruction requiring time and necessitating additional loss of rent.

Another element of damages arises from the inferior value of this sinking wall. Almost the only compensation which the law assures to the proprietor whose wall is demolished under Article 682, for the inconvenience and damage to which he must submit, is that lie becomes the half owner of the new and thicker wall to the height of the old one, without cost. If the new wall is substantially and fitly constructed, as he lias a right to require, this is a considerable benefit, of which he cannot he deprived, without reparation, by the fault of the.neighbor in putting up a wall which, owing to its sinking, is of less value for present or future purposes.

We need not affix special valuations to each element of damage; we do not pretend to he able to render exact justice in such a case. The district judge has fixed the sum of four thousand dollars as the measure of actual damages suffered by defendauts with a non-suit to all claims for prospective damages.. While he has, doubtless, allowed some items which we disapprove, he has ignored others which we consider proper. On the whole we believe he has, 'in the amount allowed, done substantial justice. The basis of estimation is too uncertain to justify us in increasing it; hut we feel safe in holding that adding to the specific items above mentioned the damages arising from the other causes indicated, the damages suffered by defeudauts amount to at least the sum awarded by the judge a quo.

It is, therefore, ordered and decreed that that part of the judgment appealed from which rejects plaintiffs’ demand and sets aside the injunction he annulled, avoided and reversed, and that there he non-judgment in favor of plaintiffs on their principal demand and perpetrating the injunction; and that in other respects the judgment he affirmed, defendants to pay the costs of the principal demand in the court below and plaintiffs to pay those of the reconventional demand, defendants and appellees to pay costs of appeal.

On Application por Rehearing.

Fenner, J.

We think it sufficient to say that the damages, allowed by us cover all specific damages upon which evidence was taken in the lower court up to the closing of the testimony.

Rehearing refused.