text:
    No. 12,256.
    The Southern Chemical and Fertilizing Co. vs. the Board of Assessors et als.
    The exemption from taxation of a class of manufacturing corporations is no* affected by the fact that the corporation engages in a business distinct from manufacturing, the exemption being confined to the property employed in the manufacturing designated in the exemption provision in the Constitution. Constitution, Art. 207, Act No. 92 of 1886.
    The processes applied by suitable machinery to animal matter and the offal of the city resulting in vaporizing the moisture, disposing of the gases, separating the grease or oils of such refuse and matter and the residuum, converted into a fertilizer is the manufacture of such fertilizers within the scope of the provisions of the Constitution exempting from taxation property employed in manufactories. See the article and the act of 1S86 above cited.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Rogers & Dodds and Farrar, Jonas & Fruttsehnitt for Plaintiff, Appellee.

      Samuel L. Gilmore, City Attorney, and W. B. Sommerville, Assistant City Attorney, and Frank C. Zaeharie for Defendants, Appellants.
    Argued and submitted November 20, 1898.
    Opinion handed down November 30, 1896.
   The opinion of the court was delivered by

Miller, J.

This appeal is by the defendant from a judgment reducing the assessments of plaintiff’s property.

The plaintiff is a corporation organized to execute a contract with the city of New Orleans to remove and dispose of the garbage and pilings of the city and to manufacture chemicals, oils, soaps, candles and other similar articles, and for these purposes to erect and maintain mills and the necessary plant. It is in proof that plaintiff has purchased property, erected buildings and provided the machinery for the manufacturing purposes stated in the charter. The claim of the company is that it is entitled to an exemption from taxation on such property under Art. 207 of the Constitution, as amended by the Act No. 92 of 1884, which, with other exemptions, declares that property, capital and machinery employed in the manufacture of fertilizers and chemicals, shall be exempt from taxation, provided that more than five hands shall be employed.

It seems that the plant of the company includes receiving vats, in which are placed dead animals, refuse from kitchens and other offal. By a heating process and the use of chemicals the moisture from this matter is vaporized, the gases disposed of, and grease or oil is extracted. The residuum in the vats, thus relieved of moisture and the grease or oil “ cooked,” as the witnesses express it, is adapted for fertilizing purposes and used as a fertilizer. This process of manufacture is detailed at length by the witnesses, and the results or products presented in the testimony are grease or oil extracted from the animal matter, and the residuum or tankage, rich, it is testified, in ammonia, is ground in the mill of the company, sacked and used as a fertilizer.

The defendant urges that the processes used by plaintiff are “ reduction and conversion ” of the garbage, and hence the plaintiff is not a manufacturer. But we must accept from the record, that the results produced by plaintiff are effected by the machinery, agencies and appliances of a manufacturing establishment, and the garbage that goes into the vats and extractors is changed into oil or grease and fertilizers, that is to say, garbage, in vats subjected to the action of heat, steam and naphtha, is changed into oils and fertilizers. It seems to us that whether “ conversion or reduction,” the processes and results are those incident to manufacturing, in the accustomed sense of the word in the contemplation it is to be supposed of the lawgiver in granting the exemption from taxation of property employed in the manufacture of the various products specified, including chemicals and fertilizers. The defendant further contends, that the main business of plaintiff is to remove garbage from the city; that the use it makes of the garbage is the mere incident of that business, and hence the plaintiff is not a manufacturer. But the act of incorporation declares the objects of the company to be the execution of the contract with the city, for collecting and disposing of the city-garbage, street pilings and refuse, and to manufacture chemicals, fertilizers, soaps, candles and similar articles, and for such purposes, to erect and maintain mills, plants and manufacturing establishments. The ordinance of the council, under which the contract was awarded to plaintiff, is to remove and dispose of the garbage. This function in aid of the cleanliness of the city is distinct from the manufacturing business announced in plaintiff’s charter. That business, then, can not be deemed an incident to removing garbage, except in the sense that the garbage is used in plaintiff’s manufactory, hut obviously, as it seems to us, this police function of plaintiff, under its contract, can have no influence in determining whether besides, it is not a manufacturer in the sense of the exemption provision in the Constitution. The Ernst ease cited in defendant’s brief (State ex rel. Ernst & Co. vs. Board of Assessors, 36 An. 347) maintained that tie rice miller was not a manufacturer of flour, because in cleaning the rice, dust was thrown off which was sold as rice flour. There is, in our view, no analogy between the decision and the point here, whether a manufacturer is stripped of that character because of his contract with the city to remove garbage. Again, it is claimed by the defendant that the making of oil or grease, is not a manufacture within the exemption claimed. Oil is not specified in the exemptions. Grease, in our opinion, however, produced, carries no exemption from taxation. We pass over the contention whether oil is within the meaning of chemicals as the term is usually employed. But under the evidence in this case, in producing the fertilizer, the manufacture of which is clearly within the exemption, the oil is extracted. It seems to us that the exemption is not lost, because in the manufacture of an article that does exempt from taxation, another product is also evolved.

We are asked, in any event, to exempt the property only to the extent it is used for the- manufacture of exempted products, and to apply the rule of distribution in the Washburne case. (Washburne vs. City of New Orleans et als., 43 An. 226.) There is no basis supplied by the record on which we could make this apportionment. It is in evidence that a portion of the property — i. e., wagons, mules, the crematory to burn that part of the garbage not susceptible of use for manufacturing purposes and other appliances, are useful for the performance of the contract of the city, but are not part of or needed for the manufactory. The lower court, in its opinion, has maintained the assessment on all such property not connected with the manufactory. We think, under the testimony, this apportionment is the only rule we can apply.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 12,273.
    State of Louisiana vs. Michel Stelly.
    It is sufficient that an indictment framed under the provisions of a statute denouncing a statutory offence should charge a violation thereof in the identical language of the statute, or that of similar import.
    An indictment charging in one count the malicious altering of the mark or brand of one hog, and in another count the lai’ceny of one hog, issuffieient in law.
    An indictment charging in one count the malicious altering of the mark or brand of a hog, the property of a certain person named, and in another count the larceny of a hog, the property of the same person named, does not necessarily denounce two contemporaneous acts forming parts of the same transaction, só as to render two distinct and separate sentences thereunder null and void. Being two distinct offences of the same generic characters same were pleadable in one and the same indictment in two separate counts.
    A PPEAL from the Eleventh Judicial District Oourt for the Parish ** of St. Landry. Dupré, J.

      M. J. Cunningham, Attorney General, and R. Lee Garland, District Attorney, for Plaintiff, Appellee.

      Perrault & Bailey for Defendant, Appellant.
    Submitted on briefs November 21, 1896.
    Opinion handed down November 30, 1896.
   The opinion of the court was delivered by

Watkins, J.

The defendant was indicted for the crime of having maliciously and feloniously altered the mark of a hog, the property of Isaac Rider, in one count, and also with the crime of larceny of one hog, the property of Isaac Rider, in another count.

On the trial there was a general verdict of “ guilty in manner and form as charged in the bill of indictment, and thereupon the trial judge pronounced two judgments or sentences against the defendant. In the first he sentenced him to one year’s imprisonment for the commission of the crime of having feloniously and maliciously altered the mark of a hog, and in the second he sentenced him to one year’s imprisonment in the penitentiary for the larceny of a hog.

The defendant’s counsel filed a motion to quash the indictment on the ground that in the first count it is not charged that the alleged alteration of the mark of the hog was made “with intent to steal,” and that the second count does not describe the stolen property “by giving a description of the size, sex, color, age, etc., so as to support the plea of autre fois acquit or autre fois convict as required by the statutes,” and that in consequence of said failure and omission the indictment is null and void.

This motion was submitted to and overruled by the court, but counsel retained no bill of exceptions to the ruling of the court, relying exclusively, upon an assignment of errors filed in this court.

I.

The first count of the indictment was framed under and in pursuance of the provisions of Section Three (3) of Act 8 of 1870, extra session, which declares that whoever shall feloniously or maliciously mark or brand, or alter, or deface the mark or brand of any horse, mare, gelding, colt, ass, mule, neat cattle, hog, sheep or goat shall on conviction be imprisoned at hard labor or otherwise, etc.” n Treating this as a question of law apparent upon the face of the indictment, and a matter of substance which the defendant may assign in this court as error, we think it evident that counsel for the defendant is in error, as the charge of the first count is of the violation of a special statute, and consequently the crime denounced therein is a statutory offence, and may be charged in the indictment in the identical words of the statute or those of equivalent import. Knoblock’s Criminal Digest, p. 233, and the authorities therein collated.

The words of the statute are feloniously and maliciously alter or deface the mark or brand of any one of the animals enumerated. It does nob employ the phrase “ with intent to steal,” nor any other of similar import, and the indictment would, in our opinion, have been bad if same had been employed.

II.

It was unnecessary for the indictment to have mentioned the particular mark of the hog that is charged to have been altered, nor whose mark it was. The indictment does specify the name of the owner of the hog, the mark of which defendant altered, and presumably the hog bore his mark.

This description fulfils the requirement of the statute in every essential particular.

III.

The animal is described in each of the two counts of the indictment as one hog, the property of Isaac Rider, and in our opinion that ■was a sufficient description to satisfy the requirements of the law, and put the defendant upon his guard with reference to the commission of the particular crime he was called upon to answer for.

With regard to the want of proper description in the first count, we think it is disposed of by the discussion in the two preceding paragraphs; and with regard to that in the second, it is conformable to the rules of criminal proceedings often sanctioned by this court.

In any event the objection is one of a purely formal defect which is apparent on the face of the indictment, and can only be taken advantage of by demurrer or motion to quash before the jury is sworn; and same is amendable instanter, and the trial proceeded with. Rev. Stats., Sec. 1064.

The defendant’s counsel, should have reserved a bill of exceptions to the overruling of his motion to quash and pressed his objection here. Bub our predecessors held in State vs. King, 31 An. 179, that an indictment charging the defendant with stealing “ one mule ” was good and sufficient — citing Gabriel vs. State, 40 Ala. 357; People vs. Littlefield, 5 Cal. 355.

And in State vs. Carter, 33 An. 1214, it was held that the description of the thing stolen, in an information for larceny being “ one hog, the property of A. B.” is sufficient — citing McBride vs. State, 13 Bush. 337; Taylor vs. State, 44 Ga. 263; Grant vs. State, 2 Texas Ap. 163; State vs. Mansfield, 33 Texas Ap. 129; Washington vs. State, 58 Ala. 355; 2 Bishop Crim. Proc., Sec. 700.

This objection is not well grounded.

IV.

The objection that there is no name laid in either count of the indictment, by stating the place where the alleged crime was committed,is amere formal defect — conceding that it be a defect,at all— and can not be taken advantage of by an assignment of error, especially in the absence of any averment to that effect in a motion to quash, and exception taken to an unfavorable ruling of the trial judge.

It is covered by the authorities cited in the preceding paragraph.

While it is true that the charge of one count in the indictment relates to the malicious and felonious altering of the mark of a hog, and that of the other count relates to the larceny of the same hog, it does not follow that these two felonious acts were necessarily contemporaneous and formed parts of the same identical transaction, so as to render two separate sentences thereunder null and void. There is nothing on the indictment to show that such was the case. It may well be that the proof at the trial showed that the altering of the mark of the hog was preparatory, to all appearances, to the contemplated subsequent larceny, and was expected by the accused to conceal the theft and prevent detection.

The two crimes charged are distinct one from the other and are denounced by two separate statutes, but of the same generic character.

We deem it a well recognized principle in our jurisprudence, as well as at common law, that such offences are pleadable in different counts of the same indictment. Knoblock’s Crim. Dig., pp. 241 et seq., and the authorities there cited.

Our examination and study of this case has led us to the conclusion that the trial judge has committed no error entitling the defendant to relief at our hands.

Judgment affirmed.


author: McEnery, J.

text:
    No. 12,276.
    State of Louisiana vs. John Bruno.
    The appointment of a jury commission and the drawing of a jury by it under a law which has not been promulgated are illegal, null and void.

      APPEAL from the Nineteenth Judicial District Court for the Parish of Iberia., Voorhies, J.

      M. J. Cunningham, Attorney General, and L. T. Dulaney, District Attorney pro tempore, for Plaintiff, Appellee.

      A. & Chas. Fontelieu and David Todd for Defendant, Appellant.
    Submitted on briefs November 21, 1896.
    Opinion handed down November 30, 1896.
   The opinion of the court was delivered by

McEnery, J.

The defendant was indicted for murder and found guilty without capital punishment, and sentenced to imprisonment for life. He prosecutes this appeal. He filed a motion to quash the venire, on the ground that the District Judge ordered the jury to be drawn in pursuance of Act 99 of 1896, and that at the time said order was given and the jury drawn, Act 99 of 1896 had not become a law in the parish of Iberia.

The judge appointed the'jury commissioners by virtue of said act on 28th of July, 1896. The jury commission, on August 10, met and drew the jury. Act 99 of 1896 was promulgated at the capital of the State, in the official journal, on July 24, 1896. Art. 40 of the Constitution provides that “ no law passed by the General Assembly, except the General Appropriation Act, or act appropriating money for the expenses of the General Assembly, shall take effect until promulgated. A law shall De considered promulgated at the place where the State journal is published the day after the promulgation of such law in the State journal, and in all other parts of the State twenty days after such promulgation.” It is clear that the jury commission was appointed, and the jury drawn by said commission under a law that was not in existence at the time.

The motion to quash the venire should have prevailed. State vs. Clark et als., 46 An. 1409.

The verdict and sentence are annulled and set aside, and it is now ordered that this case be remanded, to be proceeded with in due course of law.


author: Breaux, J.

text:
    No. 12,289.
    State of Louisiana vs. D. W. Parry.
    While to sustain a conviction for larceny it should be proven that the goods and chattels alleged to have been stolen were feloniously stolen, taken and carried away, the indictment is not fatally defective if the word “ away ” is omitted and the meaning is supplied by other words.
    The words “feloniously steal, take and carry,” mean the felonious taking and carrying away the personal goods of another.
    APPEAL from the Ninth Judicial District Court for the Parish of De Soto. Hall, J.

      M. J. Cunningham, Attorney General, and J. B. Lee, District Attorney, for Plaintiff, Appellee.
    JET. T. Liverman and William Goss for Defendant, Appellant.
    Submitted on briefs November 21, 1896.
    Opinion handed down November 30, 1896.
   The opinion of the court was delivered by

Breaux, J.

The defendant was convicted and sentenced for stealing two heifers.

The indictment charged that ha “ did steal, take and carry two heifers,” omitting, presumably by oversight, the word “away.”

He moved in arrest of judgment on the ground that the indictment failed to charge an asportation of the property.

Without contradiction larceny is the felonious stealing, taking and carrying away personal property of another.

It none the less remains true that in an indictment an offence may be charged in words conveying the meaning of the statute.

The defendant is unquestionably charged with taking and carrying away feloniously the goods and chattels' of another. The words as used charge an asportation of the property. Mr. Bishop in his work on Criminal Procedure, p. 698, 3d Ed., says:

“‘Carry away,’ ‘ lead away’ or ‘drive away,’ are probably unnecessary where the word steal is employed, for it includes their meaning.”

The point has not been decided heretofore by this court. We have sought support by reference to decisions of courts in other jurisdictions.

We find that in the State vs. Chambers (2 Green’s Report, 808) the Supreme Oourt of Iowa held that the word “ steal” means the felonious taking and carrying away of the goods of another. Again, in the State vs. Mann, 25 Ohio, 668, in an indictment for larceny of a sheep, it was charged that the defendant did feloniously steal, take and drive the sheep, without alleging that he drove or carried it “away;” it was held that the indictment sufficiently described the offence, for the reason that the word “ steal ” implied a carrying away. Lastly, in the United States Digest, New Series, Vol. VII, 1876, p. 516, No. 33, we find “The word steal in an indictment implies a carrying away.”

Without expressing any opinion as to whether “ steal ” is as all-embracing in meaning as stated in the cited authorities, we think the indictable offence is clearly and specifically charged. The charge of “asportation” would not be more evident if the word “ away ” had been written in the indictment.

If one feloniously steals, takes and carries goods and chattels, there must be asportation. The character of the offence is set forth and the defendant could not be misled.

This being the case we can but regard the indictment as sufficient.

Judgment affirmed.


author: McEnery, J. Watkins, J.

text:
    No. 12,162.
    Succession of William Stuart.
    On Motion to dismiss.
    It is no cause for the dismissal of an appeal that a record has been omitted from the transcript which was not filed in. evidence. It could form no part of the record, not having been filed.
    On the Meeits.
    'The step-daughter is not bound by the ties of consanguinity to render her stepfather gratuitous services as a nurse and attendant during illness and decrepitude; hutfor such services she is entitled to compensation.
    In case the evidence fairly supports the demand and no countervailing evidence was offered at the trial, this court will not reverse the finding of the district judge.

      APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      W. S. Benedict for Miss Edward Anna O’Oonnor, Appellee.

      Bernard Titche for H. Abes, Opponent.

      Rice & Montgomery for Mrs. Margaret Funnell, Opponent, Appellant.
    Motion to Dismiss.
    Submitted on briefs June 1, 1896.
    Opinion handed down June 15, 1896.
    On Merits.
    Submitted on briefs November 2, 1896.
    Opinion handed down November'16, 1896.
    Rehearing refused December 14, 1896.
   On Motion to Dismiss.

The opinion of the court was delivered by

McEnery, J.

H. Abes and Mrs. Funnell filed oppositions to the account of the executor. They appealed from adverse judgments.

The motion to dismiss is on the ground that the transcript is incomplete and the fault is imputable to the appellants. There is an affidavit in the record made by counsel for Abes, that the documents not found in the transcript were never filed, and form no part of the record. One of the documents has reference, exclusively to the opposition of Abes. Without this document he can obtain no reversal of the judgment, if it would bring about such a result. He is in the record with only his opposition. But the record is complete, and the clerk’s certificate sufficient.

The failure to file in evidence the judgment of Abes can not affect the appeal of Mrs. Funnell.

The motion to dismiss is denied.

On the Merits.

The opinion of the court was delivered by

Watkins, J.

The controversy raised in this cg,se is with regard, principally to two items of the executor’s provisional account of administration; one is that of $1763.25 in favor of Miss Edward Anna O’Connor for services rendered in nursing and attendance on the deceased; and the other is a privilege claim in favor of Stuart and Adams for $395.

Several of the recognized ordinary creditors filed oppositions to the homologation of the account in its entirety, questioning every item on the list of privileged debts; but on the trial either no proof was administered, or the oppositions were abandoned as to all, except to the two items above specified.

On the trial, the judge a quo heard the evidence, and, being satisfied of the correctness of the controverted items, rendered judgment approving the account in its entirety, and homologating same, and opponents have'appealed.

The following is the exact copy of the account which Miss O’Con-nor rendered to the executors, viz.:

To services as nurse during last illness of deceased from June 20, 1891, to June 28, 1892, one year and eight days, at $5 per day................................$1,865 00
Less credit............................................................................................................. 101 95
Balance due................................................................................................$1,763 25

It appears that William Stuart died on June 28, 1892, and that his will was thereafter probated and his executors qualified and began the administration of his estate.

This claim was presented- to the executors, and the evidence shows that they acknowledged' and approved it as a privileged indebtedness of the deceased, and subsequently entered same upon their provisional account.

As furnishing an accurate statement of the evidence appertaining to his claim we append, in its entirety, the reasons which Judge Ellis assigned for his judgment, viz.:

“The account of W. W. Sutcliffe has been disposed of by agreement of the parties, and the claim of Miss O’Connor alone is to be decided. I havs read the record, as I have heard it recorded.
“The step-daughter was the constant attendant of the deceased, ministered to his wants, and brightened his life from the moment that blindness fell upon him till the day of his death.
“ I know of no rule to measure the value of the services of a faithful and dutiful daughter; but here a formal bill is presented for services as nurse, and I have to deal with the matter regardless of sentiment. The proof is that a capable nurse could not have been hired for less than is here charged. The deceased was helpless, and the claimant recognized in this account was his constant nurse and attendant. It is difficult for one who has not served to appreciate the confinement, the weariness and discomfort of attending such a patient night and day for so long a period as one year.
“In this case, similar services antedated the last year of the life of the deceased for several years, and the prior services more than compensate aught that claimant received in the way af board, clothing, etc., from deceased. She was only the stepdaughter — not an heir at law or by blood. All the heirs approved the claim as just, and were her claim rejected, .the amount, after paying costs, that would go the creditors would be small.
“She has been paid one hundred and one dollars and seveuty-five cents, and I fix the balance due the claimant at fifteen hundred dollars, and as thus modified, the claim will stand in the account due her with privilege.
“This is for the last year, prescription having barred all claims for more than a year. This is less than five dollars a day, but on the whole case I think it is fair. Oppositions sustained to this extent only, as to said item, and otherwise overruled. As amended, account homologated and funds ordered distributed, succession to pay costs.”

Opponents adduced no countervailing evidence. This is quite a ■ peculiar case and singularly circumstanced. Miss O’Oonnor was only a step-daughter of the deceased, and was not bound by the ties of consanguinity to serve her step-father gratuitously. It is possibly true that she was indebted to him for clothing he furnished and also for board, but she had rendered services to deceased for some time previous to the commencement of the account in ques-. tion, and these may be considered thereby compensated. This was the view the judge a quo entertained.

We are not disposed to question the correctness of the opinion of our learned brother in this particular. But the evidence, in our judgment, does not support the claim of Stuart & Adams for three hundred .and ninety-five dollars, and in this respect the decree should be amended. The approval of the executors suspended prescription.

It is ordered and decreed that the judgment appealed from be so-amended as to reject and disallow the claim of Stuart & Adams for three hundred and ninety-five dollars, and that as thus amended,, same be affirmed at the cost of the succession.


text:
    No. 12,294.
    State of Louisiana vs. George Wright.
    There is no occasion for the reduction of testimony to writing when the evidence against the accused has been rejected and disallowed as incompetent and inadmissible.
    It is not the duty of the clerk of court to reduce to writing special charges which the counsel of defendant desires the trial judge to give to the jury, for-the purpose of settling a difference between the judge and counsel as to what were the precise terms of the alleged special charge.
    A PPEAL from the Tenth Judicial District Oourt for the Parish of Avoyelles. Cullom, Jr., J.

      M. J. Cunningham, Attorney General, Phanor Breazeale, District-Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      William B. Howard for Defendant, Appellant.
    Submitted on briefs November 21, 1896.
    Opinion handed down November 30, 1896.
   The opinion of the court was delivered by

Watkins, J.

The defendant was indicted for the crime of burglary of a storehouse in the night-time, armed with a dangerous weapon, with intent to steal, and also with the crime of larceny of certain personal effects, property of the proprietor of the aforesaid storehouse, which he had burglariously entered — the indictment being in two counts.

On the trial there was a verdict of guilty and the court sentenced the defendant to three years’ imprisonment in the penitentiary, and from the verdict and sentence he has appealed, relying upon four bills of exceptions and a motion for new trial.

I.

The first bill of exceptions relates to the refusal of the judge to allow the testimony to be reduced to writing in pursuance of the provisions of Act 118 of 1896. The judge assigns as his reason for this refusal that it was shown by the State’s testimony that the confession “ was made under circumstances of violence ” and was not permitted to go to the jury as evidence, and that, consequently, it was unnecessary to delay the trial to have the testimony reduced to writing.

The confession having been superinduced by violence was clearly inadmissible and properly rejected; hence the accused was without interest to further prosecute the inquiry.

II.

The second bill relates to the refusal of the trial judge to cause the jury to retire and remain absent during the examination of the witnesses in relation to the defendant’s alleged confession, on account of which declination defendant sustained injury entitling him to relief.

The judge’s statement is that in the course of the examination of a witness for the State, he was asked whether or not the defendant had made a confession, to which question the witness responded “yes ” before objection could be made by defendant’s counsel; that thereupon the question was propounded as to what the confession was, when counsel for the defendant requested the court to examine the witnesses with a view to ascertain whether the confession was admissible, and to retire the jury during the progress of the examination; that although he did not direct the jury to retire as requested, the alleged confession was not allowed to go to the jury, and he “ instructed the jury not to regard the answer of the witness that a confession had been made.”

In view of the fact that the question was asked and immediately answered in the affirmative before an objection could be interposed, all that there remained to be done was what the judge did do— instruct the jury not to regard the statement of the witness. It was proper that the jury should have been directed to retire during the progress of this investigation, as it was a matter for the ear of the court alone; but in view of the result we can not perceive how any injury was done the defendant. There is in this no ground for a reversal of the verdict of the jury.

III.

The third bill relates to an alleged special charge of defendant’s counsel which the trial judge declined to give; bub between counsel and the judge there is a disagreement as to what was the special charge requested and refused.

The judge assigns, among other things, that the “ court can not agree that such a charge as the (one recited) above was requested; had it been, in the terms set forth, the court would have recognized at once that the charge was copied directly from a text writer, and would have so charged the jury. Counsel for defendant did prefer a request in writing, but not in form or substance of the above. The paper was lost or mislaid; but the court is positive that no such charge was demanded.”

Following precedents, we must accept the statement of the trial judge, and that is conclusive as to the correctness of his ruling.

IV.

The fourth bill relates to certain other requested special charges alleged to have been requested by defendant’s counsel and refused by the court, but concerning the character and substance of which there was a difference between counsel for defendant and the court.

It appears at the time there was some discussion on the question, and counsel, excepting to the action and decision of the judge, proposed to have “the clerk (of court) reduce to writing the special charges and the subject matter of the bill of exceptions.”

But the judge refused to have this done, on the ground that such was not the duty of the clerk, bukthat of the counsel desiring special charges given by the court.

The trial judge was entirely correct, It was not the duty of the elerk to prepare such special charges for counsel, especially when confronted with the fact that there was a question between the judge and counsel as to the particular terms of the charges that had been previously requested.

There is no objection — indeed it is the rule — that the clerk should make a note of objections that are taken during the progress of the trial, in case there be no objection or contest about it; but the correct practice and safer rule in making any reservation is for counsel to formulate his objection in writing, and furnish a copy thereof to the judge and one to the opposing counsel. In the event of an adverse ruling by the judge counsel should prepare a bill of exceptions and incorporate his objection therein, reserving his copy of his reservation for identification therewith.

Y.

There is no issue raised in the motion for a new trial save that the verdict of the jury was contrary to the law and evidence; and, following precedents, we must decline to consider it, as it involves only a question of fact.

Judgment affirmed.


author: Nicholls, C. J.

text:
    No. 12,250.
    State of Louisiana vs. Cleophas Laborde.
    The Act No. 113 of 1896 which provides “ for the maimer in which bills of exception shall be taken in the trial of criminal cases” requires that the “ statement of facts ” which in case of appeal is to be attached to the “bill of exception” is to be made under orders of court and is not to be made out by the clerk of his own motion or simply at the instance of counsel.
    A bill of exception taken by a defendant to the ruling of the judge should be written up and submitted to the District Attorney and to the judge for examination and signature, the opportunity should be afforded the court of ascertaining whether the statements of the bill presented for signature are correct and for such statement and explanation by the court as to it may seem necessary.
    It is the duty of the court to give its charge in writing, if retiuested. It would be a practice not to be tolerated, that counsel failing 10 make such reques should be permitted to make through the clerk an ex parte statement as to what the judge charged and as to what objection he urged to the same as it was so declared to have been given..
    APPEAL from the Seventeenth Judicial District Court for the Parish of Orleans. Debaillon, J.

      M. J. Cunningham, Attorney General, and M. T. Gordy, Jr., District Attorney, for Plaintiff, Appellee.

      A. & Chas. Fontelieu for Defendant, Appellant.

      Submitted on briefs November 21, 1896.
    Opinion handed down November 30, 1896.
   The opinion of the court was delivered by

Nicholls, C. J.

Defendant was indicted for murder. He has appealed from a verdict convicting him of manslaughter and from a. sentence based thereon to imprisonment for ten years in the penitentiary.

In the brief filed in this court on behalf of the appellant it is said t “ He relies for a reversal on the verdict and sentence of the court upon a bill of exceptions reserved to the following part of the judge’s charge:

“As to the tender appeal made on behalf of the little children, you must give him a deaf ear. You will now take the ease, forgetting everything but the law, the evidence and your oaths, will pass an honest and deliberate verdict between the State and the prisoner.”

The only evidence before us touching the matter complained of, is found in the transcript, in the following copy of a certificate of the District Clerk, under date of the 25th of September, 1895, the date of the trial:

“State of Louisiana 1 vs. V “Cleophas Laborde. j
“Counsel for defendant objects to that portion of the charge of the court: ‘The tender appeal made by the presence of the children you must turn a deaf ear,’ to which the counsel reserved a bill of exceptions, and tenders this in lieu of a bill.
“I hereby certify the above and foregoing to be a true transcript of the proceedings had in the above bill of exceptions.
“Witness my hand officially this 25th day of September, 1896.
(Signed) “ James G-. DeBlanc,
"Dy. Clerk of Court."

Defendant bases his claim that the above certificate brings properly to our consideration for review the charge of the judge upon Act No. 113 of 1896. That statute declares that “ oh the trial of all criminal cases in this State, when an objection shall be made and a bill of exception reserved, the court shall, at the time and'without delay, order the clerk to take down the facts upon which the bill has been retained, which statement of facts shall be preserved among the records of the trial; and if the case be appealed the clerk shall attach to the bill a certified copy thereof, which shall be taken by the appellate court as a correct statement upon which the exception is based.”

The provisions of this statute have no application to the certificate in the transcript, as a bare inspection-will show. The “statement of facts” which the act of 1896 directs to be attached to “bills of exception ” are to be made under orders of court (which would be granted as of course) and are not to be made out by the clerk of his own motion, or simply at the instance of counsel for defendant.

There was no bill of exceptions taken in this case to which it was attached, and it would be (even if otherwise strictly correct) absolutely without effect, independently of a bill. There is nothing, to show that it ever came to the knowledge of, or under the eye of either the judge whose charge is referred to, or the District Attorney.

An objection to the charge of the judge should be made to the court. There could be no objection that the specific objection made by an accused should be stated by him and noted by the clerk, but if overruled, a bill of exceptions should be reserved, which being written up, should be submitted to the District Attorney and the judge for examination and for signature. The Attorney General very correctly states that the judge should have an opportunity of ascertaining whether a statement made as to what his charge was is a correct statement, and that he should have an opportunity to correct and explain the same, and the circumstances under which it was given. There is no excuse for any difference between counsel and the court as to the charge of the court in any particular case.

It is the duty of the court to give its charge in writing, if requested, and it would be a practice not to be tolerated that counsel failing to make such request, should be permitted to make, through the clerk, an ex parte statement as to what the charge was, and as to what objection he urged to the same as it was so declared to have been given. This very ease shows what would be the result of such a course. The charge of the court is not in the record. The certificate declares that “ counsel for'the defendant objects to that portion of the charge: ‘ The tender appeal made by the presence of the children you must turn a deaf ear.’ ”

Defendant’s version of it is given in the extract from his brief, which we have quoted. The District Attorney and Attorney General inform us that the charge read as follows: You will therefore give to the facts not only their most reasonable construction, but also their most charitable construction, and if when thus considered, they fail to satisfy you of his guilt, you will acquit him regardless of consequences. To the tender appeal made on behalf of the little children you must turn a deaf ear. You will now take the case forgetting everything but the law, the evidence and your oaths, you will pass an honest and deliberate verdict between the State and the prisoner,” and that the burden of the argument on behalf of the defendant was a strong and pathetic appeal for himself and children.”

The judge himself who gave the charge has made no statement on the subject at all. He was not called upon or placed in position to do so. Matters are not before us in such a form as to enable us to review the judge’s charge.

The judgment appealed from is therefore affirmed.


text:
    No. 12,291.
    State of Louisiana vs. Jim Willis.
    APPEAL from the Ninth Judicial District Court for the Parish of De Soto. Hall, J.

    Submitted on briefs November 21, 1896.
    Opinion handed down November 30, 1896.
   Nicholls, C. J.

The accused was prosecuted for murder, found guilty, and sentenced to death. From that sentence he has appealed. The judgment is affirmed.


text:
    No. 12,164.
    Philip W. Seelig vs. Theodore Dumas.
    Where a lessor claims a specific amount in damages by reason of his property having been fraudulently sold by his lessee to a fraudulent purchaser, the action is one ex delicto. O. C. 2824.

      Whether possession o£ the property he still with the defendant fraudulent purchaser or not, such purchaser having frustrated plaintiff in the legal exercise of his rights, will not be permitted to turn the plaintiff round to a tedious and possibly fruitless pursuit and search for the property, and to litigation with persons who may have acquired it from the defendant (Thornton vs. Mansker, 10 La. 127).
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      A. D. Henriques, A. Brieugne and Branch K. Miller for Plaintiff, Appellant.
    P. L. Fourchy for Defendant, Appellee.
    On first hearing the judgment of the District .Court, which was in favor of the defendant, was affirmed.
    On June 30, 1896, a rehearing was granted.
    Case submitted on rehearing November 2, 1896.
    Opinion handed down November 30, 1896.
   The opinion of the court was delivered by

Nicholls, C. J.

The parties have, on the rehearing, submitted this cause on brief; plaintiff’s counsel calling our attention specially to the cases of Stevens vs. Older and Chandler, 26 An. 684, and Baldwin vs. Young, 47 An. 1467.

In plaintiff’s original petition he alleges that defendant was indebted to him in the sum of five thousand dollars, for this: That on the 28th of November, 1891, he leased to Theresa Hamilton the lot of furniture referred to which was used by her at No. 189 Customhouse street, under the obligation not to remove the same from said premises; that on Sunday, the 2d of October, 1892, defendant went to said premises and colluding with Theresa Hamilton to defraud and deprive petitioner of his property he surreptitiously removed the same to his store, where he disposed of and appropriated the same to his own use and benefit; that defendant was well aware of the fact that the furniture did not belong to Theresa Hamilton, but did belong to petitioner, and that, in any event, they were plaintiff’s property, and if, as claimed by defendant, they were purchased by him from Theresa Hamilton, they were so purchased for insufficient consideration, in bad faith, with notice that she had no title, and not in open market in the usual course of business. On these allegations he prayed for judgment against defendant for five thousand dollars.

An exception to plaintiff’s petition, on the ground of vagueness having been sustained, plaintiff amended his petition, in which he reiterated all the allegations of his original petition. He then alleged that he had made with Theresa Hamilton a contract for the lease of certain furniture described; that under the terms of said contract, she, on the conditions mentioned therein, was to have the right to purchase said furniture; that on the date mentioned in the original petition defendant unlawfully, fraudulently and tortiously obtained possession of said furniture under the cover of a pretended contract with Theresa Hamilton, purporting to be a sale of said property to him; that he then and there well knew that she was not the owner of, and had no right to sell the same, and also knew that petitioner had rights of which said pretended contract was designed by defendant to fraudulently deprive him, and to these ends he colluded and conspired with Theresa Hamilton; that by reason of said acts and contract of defendant he had obtained possession of said furniture and refuses to restore the same to petitioner or to recognize any right to the same petitioner might have in the premises; that Hamilton to the knowledge of defendant had paid to petitioner no sum whatever upon account of said contract between herself and plaintiff; that the furniture belonged .to petitioner, and defendant fraudulently obtained the same from Hamilton well knowing that Hamilton was not, and he, petitioner, was the owner of the same. Plaintiff reiterated his prayer for judgment for five thousand dollars. Defendant pleaded a general denial.

The court rendered judgment in favor of the defendant and against the plaintiff, and he appealed.

In the brief filed on behalf of the plaintiff the action is claimed as being one for “ damages” against defendant for “ having maliciously incited and encouraged Theresa Hamilton to violate her agreement, which was obviously to the prejudice of plaintiff.” He cites Angle vs. Chicago, St Paul, etc., Railroad Company, 151 U. S., p. 2; Walker vs. Cronin, 107 Mass. 555. Bishop on Contract Law, Sec. 493; Green vs. Button, 2 Cr. Mees & R. 707; Lumley vs. Gye, 2 El. & Bl. 216; Bowen vs. Hall, 62 B. D. 333, 337; Rice vs. Manley, 66 N. Y. 82; Jones vs. Stanley, 76 N. C. 355, 366; Haskins vs. Royster, 70 N. C. 601; N. Y. Land and Improvement Company vs. Chapman, 118 N. Y. 288, and several English decisions to the effect that if one maliciously interferes in a contract to the injury of the other, the party injured can maintain an action against the wrongdoer.

Plaintiff, in the agreements which he made with Theresa Hamilton, in the pleadings he has filed and the argument which he has presented has made it difficult for us to ascertain with certainty the precise character of the claims which he advances or of the injury he asserts. The allegation in his petition that the original contract between himself and Theresa Hamilton was one of lease; the averment that he was still the owner of the furniture at the time when defendant claims to have purchased it from the latter for five thousand dollars, the full amount fixed as between himself and Hamilton as the value of the property without making any deduction for the sum of twenty-five hundred dollars received by him from her prior to having disposed of the property, place him, before us, in our opinion as claiming to be a lessor who had been injured or damaged to the extent of five thousand dollars by reason of his property having been fraudulently sold by his lessee to a fraudulent purchaser, who not only was fully advised at the time of his purchase that his vendor had no title, but was additionally fully advised of plaintiff’s ownership. There is no demand in the suit for a return of the property to the plaintiff coupled with an alternative prayer for a money judgment,.but a prayer for an immediate judgment agains¡¡ defendant for five thousand dollars as damages. The action is rea,lly one ex delicto under Art. 2324, C. C.

The defendant under the general issue was permitted to show that he had purchased the furniture from Theresa Hamilton for the sum of one thousand one hundred and eight dollars, of which three hundred and fifty-eight dollars were paid by crediting to that amount an account which he held against her, and seven hundred and fifty dollars through a check given to her. Defendant claims that the contract between plaintiff and Theresa Hamilton was not a lease, but an absolute sale of the furniture; that, therefore, she could legally, sell and he could legally buy the same. The evidence establishes beyond question that defendant was fully informed of the contracts between plaintiff and Theresa Hamilton, and of the exact situation between those parties when he undertook to buy the furniture from her.

Granting that they evidenced an absolute sale as he declared them to have been, he knew (upon that hypothesis) that a large portion of the price which had been fixed between Theresa Hamilton and the plaintiff was still unpaid and stood secured as to payment by vendor’s privilege, and he deliberately and intentionally, with a view of benefiting himself and cutting off plaintiff’s privilege, purchased the furniture, and withdrew it from plaintiff’s pursuit. The evidence does not show that defendant has disposed of the property, but its whereabouts is uncertain. We are inclined to think he still has it in his possession, or under his control. (C. C. 2312).

Be that as it may, having frustrated the plaintiff in the legal exercise of his rights, we do not think defendant can be permitted to turn him round to a tedious and possibly fruitless pursuit and search for the property, and to litigation with persons who may have acquired it from the defendant (Thornton vs. Mansker, 10 La. 127). It was never worth five thousand dollars.

In the contract between plaintiff and Theresa Hamilton the risk of non-payment of the price by her entered as largely into the estimated value placed upon it as did its real worth. We do not think it was originally worth more than twenty-five hundred dollars. Whatever opinion we may have as to the exorbitancy of the price fixed we are not in a position to say as between the parties to this suit, and as matters have shaped themselves before us, that twenty-five hundred dollars was not still due by Theresa Hamilton (if the act was one of sale) to the plaintiff at the time of defendant’s purchase and stood secured by vendor’s privilege upon the property, Theresa Hamilton is not a party to this suit, she has raised no objection to the contract, or sought its rescission, but she has, on the contrary, affirmed its binding force by disposing of the property (of which she held the title, if at all, only by force of the contract) to defendant. Defendant having purchased from her under that title is in no position to question the contract made betweenher andher vendor, whether it was wise or unwise, judicious or injudicious. Assuming matters to have been such as he claims it to have been, he purchased for eleven hundred and eight dollars, and took possession of furniture on which there existed to his knowledge, at the time of his purchase, a vendor’s privilege in favor of the plaintiff. We find no evidence going to show or fix the value of the property at the time of this purchase other than the price of one thousand one hundred and eight dollars, which was that fixed between defendant and Theresa Hamilton. If the property had been at that time in the ownership and possession of the latter and had been sought to be made responsive to the claim of plaintiff for the unpaid purchase price, it is uncertain whether it could or would have sold for even that amount.

Assuming the contract between plaintiff and Theresa Hamilton to have been one of lease, the effect of defendant’s purchase would, 'at worst, have deprived plaintiff of property not exceeding in value the sum of one thousand one hundred and eight dollars. The claim of five thousand dollars damages set up by him could under no view of this case we might adopt be sustained.

In the opinion heretofore rendered by us we adopted defendant’s construction of the contract between plaintiff and Theresa Hamilton that it was one of sale. We reached that conclusion from the fact that possession had been given to Theresa Hamilton, from the large amount, payable weekly, which viewed from the standpoint of the contract-being a lease would be out of proportion to the value of its use, and from the clause in the act by which, on default of any payment as agreed, the whole value of the furniture as mentioned in the annexed promise of sale ($5000) would be considered due.

There is no doubt that as between Seelig and Theresa Hamilton it was understood that the title should not pass until Seelig should have received from the latter five thousand dollars, for as between them there was declared to be only a “promise of sale” when plaintiff should have received five thousand dollars under the lease. The “ promise of sale” was declared to be without prejudice to the contract of lease, and “in case of failure to pay as agreed it was to become null and void,” a clause which, if given effect to, would leave the contract of lease absolute and untrammeled and a clause inconsistent with the clause in the first agreement, that in case of default of payment the plaintiff would be entitled to sue for the whole value of the furniture (as fixed in the promise of sale) as an amount considered due.

Theresa Hamilton signed the agreement of lease which fixed no absolute time of duration, but did not sign that evidencing a promise of sale, and she nowhere directly bound herself to purchase the furniture.

The only parties to this litigation are Seelig, the owner of the furniture, and Dumas, who acquired and took possession of it under the -circumstances stated. There are no creditors of either Seelig, •Hamilton or Dumas involved, and no rights of third persons to be effected.

We weed not discuss what construction we might be justified in placing on the agreements between plaintiff and Theresa Hamilton were this case before us under different conditions and different parties. We think the situation was such as to have required of defendant in the exercise of good faith that he should have respected the obvious agreement between plaintiff and Theresa Hamilton that the furniture should be held to remain under lease, and the title to continue in Seelig until he should have been paid five thousand dollars. We are not disposed for the benefit of the defendant to nicely scrutinize and construe the terms of the agreement between plaintiff •and Theresa Hamilton. They are certainly open to discussion, and we think that justice and right require at our hands that we give plaintiff the benefit of any and all doubts as respects them. Not to do so would be to enable defendant to take advantage of a wrong, and to perpetrate a fraud. We say this upon the hypothesis that defendant would have occupied a different and a better position as a party buying from the vendee of movables (when there remained to his knowledge a portion of the price unpaid) with the fraudulent intent of cutting off from the vendor the benefit of his privilege upon, the property sold, and with the intent of benefiting himself, than he would as buying from a person without title. We think this case is fairly brought under the operation of the provisions of Art. 2324 of the Civil Code, and the decisions of this court in the cases of Irish vs. Wright and others, 8 Rob. 428; Smith vs. Berwick, 12 Rob. 20, and Thornton vs. Mansker, 10 La. 127.

We think the price agreed upon between defendant and Theresa Hamilton at the time of the sale of the furniture a fair criterion for the purposes of this suit as the value of the property, and that plaintiff is entitled to a judgment for that amount with legal interest >(as for the use of the property) from judicial demand. If the amount fixed upon as the value of the property be deemed by the defendant "to be too large, he will be enabled to escape from any injury which he might suffer from that estimate by taking advantage of the privilege which we will grant him- in the judgment of satisfying the judgment for so much of the principal sum as shall be equaled by the value of the furniture taken, which defendant may return to the plaintiff within ten days after this judgment shall have been returned to the District Court, the said value to be determined by the District Court. (C. C. 2312).

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment rendered herein by this court be and the same is hereby set aside, and it is now ordéred, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed.

It is further ordered, adjudged and decreed that the plaintiff, Philip W. Seelig, do have judgment against and recover from the defendant, Theodore Dumas, the sum of eleven hundred and eight dollars, with legal interest thereon from judicial demand until paid.

It is further ordered, adjudged and decreed that defendant have the privilege of satisfying this judgment for so much of the principal sum as shall be equaled by the value of the furniture taken, which defendant may return to the plaintiff within ten days after this judgment shall be returned to the District Oourt; the value of the same to be determined by the District Court, and this cause is remanded to the District Court to take action thereon should defendant avail himself of the privilege within ten days.


text:
    No. 12,219.
    State ex rel. Dr. James P. Saizan et als. vs. The Judge of the Eleventh Judicial District Court for the Parish of St. Landry.
    The District Oourt issued a final injunction, restraining and prohibiting before-they had qualified appointees of the Governor from exercising the duties of the offices to which they had been appointed. The parties enjoined applied to and obtained from the Supreme Court writs of prohibition and certiorari prohibiting the District Judge from further action in the premises.

      Held: It was the duty of the judge to obey. If the effect of the writs issued by the Supreme Court was to maintain the status in quo as fixed by the issuance of the-writ of injunction by the District Court — any violation of the writ which either the District Judge or the District Attorney might deem a contempt should be called to the attention of the Supreme Court; if under the circumstances any contempt had been committed, it was of the authority of the Supreme Court, not the District Court. So, where the District Judge, under such conditions, punishes parties as for a contempt of his authority by disobeying the writ of injunction, the judge will be held to have been guilty of a contempt of the authority of the Supreme Court.

      The object oí the writ of prohibition is to prevent further action in a case where jurisdictional power and authority to act are denied; the function of the writ of certiorari is to undo matters which had taken such shape as not to he remedied by the writ of prohibition; the writ of certiorari is a substantive and far-reaching correctivewrit, concurrent with and frequently takingthe place of the writ of prohibition.
    In*the exercise of its supervisory jurisdiction the Supreme Court is not rigidly tied down to form; when the facts of a given case, being recited,, present a case for relief under its supervisory jurisdiction and the prayer is for such orders and decrees as those facts will justify and for general relief, the Supreme Court will not remit the relator to new, expensive, unnecessary and sometimes fruitless remedies, simply by reason of a mistake in the writ asked for.
    When the question at issue is the power of the judiciary to summarily and positively check by final injunction the exercise of the powers oí the executive department in the appointment of an officer the “ matter in dispute ” is not measured by the amount which is declared to be the value of the office.
    The value of the particular office in question which furnished the occasion from which arises a contest as to the powers of two departments of government, will not in such a controversy, determine the jurisdietionof the Supreme Court.
    It is the bounden duty of the judiciary to give some prima facie force and effect to the acts of the executive; his acts are not to he presumed illegal and utterly wrong
    The court affirms expressly State e# rel. Ivuhlman vs. Judge, 47 An. o3, and State ex rel. Keller vs. Judge, Tb. 61.
    r\N APPLICATION for Writs of Certiorari and ' Prohibition and ^ Rules for Contempt.

      Thomas H. Lewis and E, B. Dubuisson for Relators.

      Albert Voorhies, amicus eurise, Kenneth Baillio, E. D. Estillette and Clegg & Quintero for Respondents.
    Submitted on briefs November 2, 1896.
    Opinion handed down November 30, 1896.
    Statement oe Case.
    On the 6th of July, 1896, relators J. P. Saizan, Robert Lafleur, Olibe Manuel and E. H. McGee filed in the Supreme Court a petition alleging that on the 30th of June, 1896, they had been appointed and commissioned by the Governor of the State, with the advice and consent of the Senate, under the provisions of Act No. 94 of 1884, respectively police jurors for the first, fifth and eighth wards of the parish of St. Landry. That said appointments were made by the Governor on the representation and showing that said wards were accorded such a population by the census of the United States for the year 1890 as entitled each of them to one more police juror than they had heretofore had or claimed, fortified by a written opinion of the Attorney General to that effect, and that the appointments ought to be made by the Governor; that a vacancy existed in said wards under said act and said census which it was the duty as well as the right of the Governor to fill on the fact being called to his attention; that notwithstanding the fact that relators were appointed and commissioned as police jurors without solicitation on their part, they were enjoined by the District Judge for the parish of St. Landry from in any manner acting or assuming to act as police jurors, and the relator McGee, president of the police jury, was enjoined from recognizing them as such until their right to such offices should have been judicially determined. They averred that said injunction was granted on the petition of the District Attorney for the parish of St. Landry on the simple allegation that the appointments of relators as police jurors by the Governor was illegal and wrongful; that the District Court was utterly without jurisdiction, power or authority to issue the writ of injunction on the showing made. That the petition neither by the allegations nor by the facts set up any right or authority or warrant of law in the District Attorney to intervene in the matter on behalf of the State because it is not charged that relators had usurped or intruded into, or attempted to usurp, intrude into or unlawfully hold, or exercise any public office, and because when there is no contest for the office, as in this case, the right of the District Attorney to proceed of his own motion under Sec. 2593 of the Revised Statutes of 1870 is against “ parties offending ” is by a direct action setting up all the facts constituting the offence and meeting the issue of the right to the office, and not by a simple injunction, which if maintained would make the party claiming the office the plaintiff in a suit to have the right to the office judicially determined. That it was not the intention of the Legislature to confer upon District Attorneys the power to question the rightful exercise by the Governor of the functions of his office as had been attempted in this ease. They alleged that they had pointed out to the District Judge his want of jurisdiction and power to issue the restraining order herein granted and requested him to vacate it and set it aside, but he refused to do so and persisted in his illegal assumption of authority and jurisdiction in the premises. In view of the premises relator prayed that writs of prohibition and certiorari issue directed to the District Judge and District Attorney forbidding the former to take cognizance of the case and the latter to prosecute it further until after due hearing.
    Upon this application Associate Joseph A. Breaux of the Supreme Court issued the following order: “ It is ordered that the judge of the District Court and the District Attorney made respondents show cause on the first day of the next regular term of this court why the writs applied for in the foregoing petition should not be made absolute and perpetual, and that respondents proceed no further in the matter of the injunction, and that they give no recognition to allegations made for an injunction until all parties concerned will have been heard and trial had before this court at said time and the issues between the parties in the premises finally determined after an opportunity is offered for a full and deliberate investigation. That the writ of certiorari issue and needful copies be furnished.”
    On the first day of the present term the District Judge and District Attorney filed in court a certified copy of the documents filed and proceedings had in the District Court for the parish of St. Landry in the matter referred to in relator’s petition, and submitted the issues involved, upon relator’s application, upon the papers and documents filed, accompanied by a brief in support of the correctness and legality of the action taken in the District Court.
    From the record it appears that the injunction which issued in the premises from the District Court was based upon the following petition presented by the District Attorney for the Eleventh Judicial District:
    “The petition of the State of Louisiana on relation of R. Lee Garland, District Attorney of the Eleventh Judicial District of Louisiana, with respect represents: That at the general election recently held throughout the State of Louisiana there were elected, in due accordance with the requirements of law, the following named police jurors in and for the several police jury wards of the parish of St. Landry, to-wit:
    “For the First Police Jury Ward of said parish — Daniel Durio and James O. Chaceré.

      “For thé Second Police Jury Ward — Adeline Guidry.
    “ For the Third Police Jury Ward — Jules' Québadeau.
    “ For the Fourth — Robert Burleigh.
    “ For the Fifth — Ozémé Fontenot and W.- M. Prescott.
    “ For the Sixth — Samuel Haas.
    “ For the Seventh — Ertelus Lafleur. -
    “ For the Eighth — Eugene H. McGee.
    “That the aforenamed police jurors, elected as aforesaid for their respective wards, are all the police jurors to which the parish of St. Landry is legally entitled, and they alone are entitled to exercise the functions and powers of police jurors in and for said parish of St. Landry and for said wards respectively; that the parties, aforesaid have been duly commissioned and qualified and as such are in possession of the offices to which they have been elected and are discharging the functions of said offices respectively and. are receiving the perquisites thereto attached, as of. right. .That-.'as your petitioner is informed and believes and so believing avers the following named persons have been illegally and wrongfully appointed and ■commissioned by the Governor of the State to act respectively for the police jury .wards below named, and will, unless enioined, illegally assume to exercise, the functions of police jurors aud to claim the perquisites thereto belonging, to-wit:
    “Dr. Joseph P. Saizan for the First' Police Jury Ward; .for the Fifth Police Jury Ward Robert Lafleur, and for the Eighth Poiice Jury Ward, Olibe Manuel. .
    “ That said appointments are illegal, and said parties, aforesaid are not legally entitled to exercise, the functions or receive the emoluments as police jurors of said wards respectively, and a writ Of injunction should issue, in the name of the State of Louisiana to restrain and prevent said Dr. Joseph P. Saizan, Robert Lafleur and ■Olibe Manuel from exercising the functions of police jurors of said wards respectively until,' after proper proceedings, the disputed right by them to said offices shall have been judicially determined; that E. H. McGee is president of said police jury and he likewise should be enjoined from in any manner recognizing the illegal' appointment of-said Saizan, Lafleur and Manhel as aforesaid, and should be further enjoined from permitting them to exercise .in any-manner the functions of police jurors for the aforesaid First;-Fifth, and .Eighth wards respectively, until their right to said offices . shall have been judicially determined; that the right to the offices above referred to exceed each in value the sum of one hundred dollars. Wherefore, petitioner, in his capacity as District Attorney, and acting herein for and on behalf of the State, prays that writs of injunction do issue in the premises, prohibiting and enjoining the aforesaid Joseph P. Saizan, Robert Lafleur and Olibe Manuel from in any manner acting or assuming to act as police jurors for the above named wards respectively, and that a writ of injunction likewise issue prohibiting the said E. H. McGee, president as aforesaid, from in any manner recognizing the illegal appointment of said parties as police jurors, or permitting them to in any manner act as such until the further orders of your Honorable Court, and that on trial hereof the said writs of injunction be maintained until the disputed rights of said Saizan, Lafleur and Manuel to the aforesaid offices shall have been judicially determined; and petitioner further prays that said Saizan, Lafleur and Manuel be duly cited in the premises, as provided by law; and petitioner further prays for costs and general relief in the premises.”
    This petition was accompanied by the affidavit of R. Lee Garland that the allegations contained therein were correct and true, and that a writ of injunction was necessary to prevent the acts complained of therein.
    The District Judge granted an order upon this petition, as follows:
    “The foregoing petition, affidavit and law considered it is ordered that writs of injunction issue as prayed for and according to law.”
    On the 6th of July the District Attorney filed a petition in the District Court in which, after reciting the petition filed by him as stated, its allegations and its prayer — the action of the District Court thereon ordering an injunction to issue as prayed for and the issuance and service of the injunction on the parties ordered to be enjoined, he alleged that, notwithstanding the issuance and service of the injunction, the parties enjoined, Saizan, Lafleur and Manuel, had each and severally violated the injunction by presenting themselves at open session of the police jury on that day and claiming and assuming to act as police jurors of Wards First, Fifth and Sixth, respectively, and by acting and voting as such, and that McGee, president of the police jury, had likewise violated the injunction and disobeyed the same by recognizing said parties as said police jurors; that in so acting all of said parties had wilfully disobeyed the order of injunction and committed a contempt of the Governor of the State who made the appointments, of the Senate who confirmed them and of the authority of the District Court and should be punished accordingly. He prayed that the court rule these parties to show cause why they should not be adjudged to have committed a contempt of the authority of the District Court and punished accordingly.
    The parties appeared at the time fixed by the court and for answer alleged that they had not been guilty of contempt because the petition for the injunction showed on its face that the court hadno jurisdiction, power or authority to issue the writ of injunction, which was there - fore absolutely null and void, and therefore no contempt was entailed or incurred by its violation. Because notwithstanding the absolute nullity of the injunction, they had observed the inhibitions of the same until they had applied to the Supreme Court for writs of certiorari and prohibition and obtained and had served upon the District Judge and District Attorney the mandate of the Supreme Court. They prayed that the rule be discharged. On the trial of the rule the court ordered and adjudged and decreed that the parties be imprisoned in the parish jail for the space of forty-eight hours, holding that they had been guilty of contempt by wilfully violating the writ of injunction sued out.
    On the 10th of July, the parties so adjudged guilty of contempt and relators herein filed a petition in the Supreme Court, in which they averred that after the restraining order issued by that court to the District Judge and District Attorney had been served, Saizan, Lafieur and Manuel presented their commissions and oath of office as police jurors to the police jury of the parish of St. Landry then in session, and were duly recognized as members of said jury by the president thereof, McGee, without objection from the other members of said body. They then reciting the application of the District Attorney for the rule upon them to show cause why they should not be punished for contempt, their answer thereto and the judgment of the District Judge on the trial of the rule, averred that the action of the District Judge and District Attorney was in contempt of the authority of the Governor and of the Senate and of the Supreme Court. That they had deliberately violated the order of the Supreme Court, and that in ordering them to be confined in the parish prison, the District Judge had committed an act of oppression in office and wantonly violated their right of personal liberty. That the act was tyrannical and oppressive and called for the exercise by the Supreme Court, in the vindication of its authority, of its powers of punishment. They prayed that the court order that the District Judge and District Attorney be arrested and punished for contempt of court; that a peremptory order issue to them to take no further steps against them, in the premises; that they be discharged from prison and that the court should take such .further steps as it might deem advisable and effectual to enforce respect for its authority and obedience to its orders and general relief. The District Judge and District Attorney were ordered to show cause on the 2d of November, 1896, why they should not be punished for contempt as prayed for.
    On the 17th of July, Saizan, Lafleur, Manuel and McGee filed a petition in the Supreme Court, in which they averred that after having obtained from this court the restraining order directed to the District Judge and District Attorney previously referred to, the said District Judge, [when petitioners attempted to take their seats as police jurors and exercise the functions and duties of their office] at the instance of the District Attorney, issued a rule against them to show .cause why they should nob be punished for contempt, and on the trial of said rule the District Judge sentenced them to imprisonment in the parish jail for contempt of court, which sentence they were compelled to serve out because of their inability to obtain timely relief from the Supreme Court. That they obtained, however, a rule on said judge and District Attorney to show cause, on the 2d of November next, whj' they should not be punished for contempt of that court; that this rule was served upon the said parties; that petitioners, relying upon the restraining order and rule for contempt which had been obtained from the Supreme Court, continued to exercise the duties of their office as members of the police jury sitting as a Board of Review, when on the evening of July 15, 1896, they were [at the instance of the District Attorney] again served with a rule for contempt of the District Court for alleged violation of its said injunction. That the District Attorney by applying for said rule and the District Judge in ordering it to issue bad been guilty of another breach of the restraining order of the Supreme Court and another contempt of court, and they should be ruled to show cause why they should not be punished therefor. They averred that the order of the District Judge allowing said rule was illegal, null and void — that the judge was incompetent and without jurisdiction, power or authority to issue it, because of the restraining order of the Supreme Oourt and because the original injunction was an absolute nullity. They prayed that a rule issue against the said judge and District Attorney for contempt of court and for supplemental writs of certiorari and, prohibition, and for such further orders and decrees necessary in the premises and for general relief. They annexed to the petition copies of the proceedings in the District Oourt.
    On the same day the Supreme Oourt at chambers (a quorum being present) set aside the last order of the District Judge [directing that a rule be taken on the petitioners to show cause why they should not be punished for contempt] deeming it an infraction of its own restraining order to the said judge and ordered the District Judge to> show cause why he should not be punished for the repeated disobedience of its orders which had been brought to its attention.
    On the 2d of November, 1896, the District Judge and District Attorney answered.
    They averred that in construing and interpreting the writ of prohibition served upon them it was not their intention, purpose or motive, directly or indirectly, to impeach the character, motives or integrity of the members of the Supreme Oourt, individually or collectively, or to east any imputation or reflection upon them, nor was it their ptírpose, intention or motive to disobey said order. That if failure there was to observe the same, it resulted from a misconception on their part of the extent and scope of the order. That they understood said order to mean that all proceedings in the suit in which it had been obtained would be stayed until a final hearing of all parties before the Supreme Oourt as was announced therein -r that they solemnly declare that they never for one moment entertained the idea that the order was intended to operate as a dissolution or suspension of the order of injunction invoked by the District Attorney and issued by the District Judge. That when informed extra-judicially by counsel for relators that they contended for such construction of the restraining order of the Supreme Oourt, they examined the matter carefully and came to the honest conclusion (even though it might be a mistaken one) that the construction contended for was not tenable. ' The District Judge averred that in punishing the parties for contempt he had acted without any feeling whatever other than to secure obedience to the rules of - law and the orders granted by him in virtue of his office. They averred that as soon as the order commanding them to desist from any further proceedings in the matter was served upon the District Judge, they forthwith discharged the last rule against the defendants, and this course they would have pursued in the first instance had they understood the order to mean what the Supreme Court subsequently informed them it did mean. They declared that, “ knowing as they did that a government like ours rested alone upon the obedience to the law, and that its supremacy is the only bulwark and safeguard for every civil right, they never intended to set up so pernicious an example as to place themselves in contempt of the authority of the Supreme Court, and that they reiterated, under the solemn sanctity of their official oaths, the disclaimer which they made in the first part of their answer.” They prayed they be adjudged not guilty of contempt of court, and that the rule be discharged.
   The opinion of the court was delivered by

Nicholls, C. J.

An argument has been filed in this court touching the legal effect of our restraining order — the object, we presume, being to show that the District Judge had reasonable ground upon which to have placed the construction he did'upon that order.

It is said that “ at the time the order issued relators were effectually enjoined by the decree of injunction. The restraining order of the Supreme Court was issued to sustain the status quo and to restrain the District Court from further cognizance of the case except to maintain the status quo. In order that this be maintained it was the duty of the District Court to let things remain as they were — both parties, plaintiff and defendants, being held in suspense — neither being allowed to do any act which might in any way detract from the status quo. The plaintiff in injunction-was to remain motionless in the position which.he had acquired by the proceedings actually had, and to make no move of an aggressive character against his adversary. On the other hand, defendants, who had been effectually enjoined from proceeding any further, were still left under the operation of the provisional writ of injunction. They were bound to continue to respect the provisional writ of injunction unless the Supreme Court intended by issuing the restraining order to pass at once on the validity of the injunction writ and to dissolve - it ex parte. Did the court intend to pass finally on the merits of the injunction or the validity of the provisional writ of injunction? Did it intend to do so ex parte without hearing what the judge a quo and the party plaintiff had to say in vindication of its issuance? By no means. No restraining order could have such an effect, for then there would be a misnomer in terming it a restraining order, since, instead of restraining for the purpose of maintaining the status quo and preventing all parties from altering it, there would be a retroactive order of an aggressive character amounting to a decree setting aside a judgment already rendered — a provisional judgment of injunction, it is true, but a judgment which, under the well-established jurisprudence, can not be dissolved by the judge without first giving previous notice to the party who obtained the writ. The restraining order accompanying the writ of certiorari is intended simply to maintain the status quo before the date of the issuance of such order. It must not be confounded with the action of the court to dissolve the injunction.”

“ The duty of the District Judge was, under the restraining order, to maintain the cause in the state in which it was at that moment, and this necessitated the maintenance intact of the provisional order, and when the defendants, seeking to take advantage of the restraining order as understood by them, were taking aggressive steps to undo and nullify the writ of injunction it became the imperative duty of the District Judge to prevent them from doing an illegal act forbidden by him. This the District Judge could only do by proceeding on rule to punish for contempt, and in doing so he was far from being in contempt of the' Supreme Court.”

When we set aside the last order issued by the District Court (issued by it after it had itself been served with the restraining order from us), ruling the defendants in injunction to show cause why they should not be punished for contempt, we passed upon and decided adversely to the position taken by the District Judge in- the argument made on his behalf. The petition to the District Court for the injunction called in question the power and authority of the Governor and the power and authority of the Senate. The injunction was granted and the effect of that order was to immediately paralyze the action of the Executive and Senate. The application to this court for writs of prohibition and certiorari called in question the absolute want of power, jurisdiction and authority of the District Judge himself to bring about such a condition of things.

After careful consideration of the matter submitted we issued the restraining order referred to, evidencing the fact that a strong prima facie showing had been presented against the power and authority assumed by the District Judge. The District Judge was notified that his own power and jurisdiction was at issue. The order to him was clear and unambiguous. He was ordered to proceed no further in the matter. It was his duty to obey. There is no question before us [as matters now stand] as to what effect the restraining order had upon the injunction, or as to what the duty of defendants in injunction was in respect to the matters enjoined after our restraining order had issued to the District Judge. We are dealing exclusively now with the duty of the District Judge himself under the latter order. If the restraining order left the injunction intact.as claimed and the action of defendants violated the alleged resulting status quowhich was brought about by it, their act (on that hypothesis) was a contempt not of the District Oourt, but of this court, and was to be punished by ourselVes and not by the District Judge.

If the District Attorney believed that the defendants had been guilty of contempt he should have addressed himself to us and pot to the District Judge, and the latter should have at once declined acting when himself appealed to. This matter we think would have been clear enough had it been coolly, temperately and judicially approached and dealt with. Th9 case is'obviously one in which strong political feelings and antagonisms have been developed, as shown by the pleadings and briefs of the parties — parts - of which on both sides are not to be commended and have not been quoted. We accept as true the declarations made by the District Judge and District Attorney that their course was not actuated by any designed or intentional disrespect of this court or any of its members, but none the less the fact remains that our order was disobeyed. We can not accede to respondents’ prayer that they be adjudged not guilty, and that the rules taken here be discharged. They were unquestionably guilty of contempt of court and we so adjudge them. We can not permit this matter to pass uncensured.

Having disposed of this preliminary question we next direct our attention to the writs of prohibition and certiorari which we ordered to issue. The first proposition advanced by the respondents is that relators invoked a- wrong remedy — that prohibition as its name implies is a writ for the purpose of preventing not of annulling, and that in this ease the matter sought to be prohibited was an accomplished fact — as the relators were already effectually enjoined and they could only be released from the effect of the same by regular proceedings to dissolve in the District Oourt. That the writ of certiorari as applied for is merely an ancillary writ intended to bring up the record for the purpose of passing upon the application for a prohibition. We have ourselves stated that the object of the writ of prohibition was to prevent further action in a case where jurisdiction, power and authority to act is denied, and declared that it was the function of the writ of certiorari to undo matters which had taken such a shape as not to be remedied by the writ of prohibition. It is true that in this instance the injunction asked for had been granted, and that nothing further having been asked for by the plaintiff in injunction that particular proceeding was at an end, but none the less that injunction could well be made the basis of future action by the court itself which granted it. ' The proceeding for contempt taken in the matter before the District Judge, shows that there might be necessity for a prohibition to be directed to him, but granting that the condition was such as not to be properly reached by the particular writ applied for it would not follow that relator should be thrown out of court. There is an idea prevalent in this State arising from the fact that prior to the Constitution of 1879 the writ of certiorari was almost exclusively made use of for the purpose of the correction of errors in transcripts of appeal; that it has no greater scope, but this is a mistake — it is a substantive and far-reaching corrective writ concurrent with and frequently taking the place of the writ of prohibition. In the exercise of our supervisory jurisdiction we are not rigidly tied down by form. When the facts of a given case being recited present a case for relief by us under that jurisdiction and there is a prayer for such orders and decrees as those facts will justify and for general relief, we will not remit the relator to new, expensive and unnecessary and sometimes fruitless remedies simply by reason of a mistake in the writ specifically asked for.-

Defendants’ next contention is that the matter in dispute being over one hundred dollars and not shown to be over two thousand dollars a ease is presented where the question of jurisdiction should be primarily determined by the Oourt of Appeals, as it would be one within its appellate jurisdiction, and it should only reach this court after the case had passed through all the different stages of an ordi.nary suit and the ultimate result reached was against the exception nr plea to the jurisdiction.

We have on a number of occasions held that we would not as a general rule detach or split off an exception of jurisdiction from the •case in which it was an incident and decide it in advance of the final judgment in the case, but that proposition was simply the enunciation of a general rule subject to be departed from in exceptional or extraordinary cases. We do not find in the present case any occasion for the application of the rule which respondents invoke. What was the issue raised by the District Attorney in the District Court and what was the result reached on his application? The argument has been made to us on behalf of the respondents that with the application for the writ of injunction and the • granting of the injunction the case of the District Attorney was ended, and that is true. The District Attorney sought to go further in that case than to obtain the injunction itself, and this being granted to force relators into the position of being plaintiffs in a new suit to have themselves recognized as entitled to the positions to which they had been appointed. The District Attorney (even were he authorized to raise such an issue) did not seek to have it decreed in that particular proceeding contradictorily with the defendants that they were not entitled to their offices, nor did he cite them into court for that purpose and to have the appointments declared null as having been made by the Governor and confirmed by the Senate without authority. What he claimed was that the Governor was absolutely without legal power to make the appointments, and that upon his suggestion of that fact to the District Oourt it had the power at once to paralyze the action of the executive until the appointees should themselves have instituted legal proceedings to have themselves declared rightfully entitled to the offices and should have sustained their right thus collaterally attacked. If the defendants had •answered the injunction, what would have been their plea? Evidently that the court was without power or authority to thus summarily, by injunction, set aside the Governor’s action, paralyze it until his appointees should as plaintiffs have been able to have that •action judicially vindicated. The issue involved would be the District Court’s power in the premises, not the powers of the Governor and the Senate. If the District Court, on an exception taken as to its power, had determined that it had such power, and the matter had been appealed tb the Court of Appeals, what issue would have been before that court? Simply the issue of the power and authority of the District Court in the premises, nothing more. There would be no existing suit involving issues in which the question of jurisdiction would be incidentally raised as leading up to the decision of other questions; the very beginning and ending of the suit would be the question of the jurisdiction and power of the lower court. We see under such circumstances no reason to permit this question to be sent primarily for decision to the Court of Appeals. The “ matter in dispute” is not measured by the amount which the District Attorney has declared to be the value of the office of police juror. The question at issue is the power of the judiciary to summarily and positively check by injunction the exercise of the powers of the executive department. A more important question than this can scarcely arise, and is not to be disposed of in determining the jurisdiction of this court simply by reason of the value of the particular office which furnished the occasion from which arises a contest as to the powers of the two departments. The District Attorney does not pretend that in the particular proceeding to which he has resorted, the right of the defendants to their offices was to be therein litigated. The suit is not before us as one in which the rights of private individuals are challenged, and in which the jurisdiction, power and authority of the District Court to deal with those rights is called incidentally in question. We are not asked to dissolve the injunction, but to discharge it.

The next position contended for is that, inasmuch as there is a class of eases in which the judiciary is authorized to pass upon the legality and illegality of particular acts of the executive, and inasmuch as the District Attorney, a constitutional officer, had, under oath, declared that in the matter of the appointments of the three police jurors appointed from St. Landry the Governor’s action was illegal, the District Court had authority to take cognizance of the cause and to grant the order it did. That if there was any want of proper allegation in the petition it was a matter for exception or demurrer, and not for direct and immediate action by this court, as one involving the power and jurisdiction of the lower court.

We had occasion in State ex rel. Kuhlman vs. Judge, 47 An. 57, and State ex rel. Keller vs. Judge, 47 An. 61, to examine into and pass upon an objection of the same character. We see no reason to change the views therein expressed. This case, as to the pleadings of the District Attorney, is as much (in fact more) open to objection as the pleadings in those cases, and the relief asked for is more sweeping and radical than was there asked. Here there are no opposing private interests sought to be protected; the District Attorney does not pretend to have been solicited by any one to institute the proceedings; he declares himself as acting for and on behalf of the State solely by virtue of his office. He has inaugurated, of his own motion, proceedings calling in question the power of the Governor and the Senate — the power of the Governor having been exercised, 'so relator’s petition declares (and the fact is not denied), under an official opinion delivered by the Attorney General, the highest law officer in the State in the prosecution of the interests of the State. It is the bounden duty of the judiciary to give-some force and effect to the acts of the executive. His acts are not to be presumed illegal and utterly wrong, particularly upon a mere conclusion of law announced by a District Attorney. The parties enjoined in this case had not gone into office under their commissions; they had not usurped the office, but before they had taken any steps whatever they were ordered and forced (as we have said), as plaintiffs, to primarily vindicate their rights and the authority of the executive in a new suit. The District Judge reversed the presumptions as to the validity of the Governor’s action and threw the judiciary department into immediate and direct clash with the executive department. Without any bond the exercise of functions of public functionaries has been put an end to. If a District Court can upon a mere declaration by a District Attorney that the Governor has illegally appointed a police juror [before that officer has taken his seat] successfully enjoin him from exercising his functions until he shall have brought suit to establish his right, and shall have established his right, the District Court could with equal propriety, upon a mere declaration of a District Attorney that the Governor had illegally appointed a District Judge or any other officer, enjoin him from qualifying, and thus bring about absolute confusion in the administration of public affairs. In the Kuhlman case we referred approvingly to Beebe vs. Robinson, 52 Ala. 66. The views of the Supreme Court of Alabama, expressed in that case, still command our approval.

The opinion we deliver, to-day does not touch the legality or the illegality of the action of the Governor in appointing the relators to the office of police jurors. That matter is left open. All that we decide now is that the District Oourt was without power or authority by injunction to tie up the relators in the exercise of the functions by anticipation, and to force those parties to remain powerless to act until as plaintiffs they had first affirmatively shown the authority of the Governor to make the appointments. See, on this subject, State ex rel. Cheevers vs. Duffel, 32 An. 653.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the writs which issued herein be perpetuated, and that the injunction granted by the District Judge of the Eleventh Judicial District Oourt in and for the parish of St. Landry, in the matter of the State of Louisiana ex rel. R. L. Garland, District Attorney, vs. Joseph P. Saizan et al., No. 15,853 on the docket of that court, be and the same is hereby set aside and discharged.