author: Miller J.,

text:
    No. 12,230.
    The Kansas City, Shreveport & Gulf Railway Company vs. The Vicksburg, Shreveport & Pacific Railroad Company.
    The court recognizes that property in use by a railroad company, whether acquired by expropriation or purchase, can i ot be expropriated by another without legislative directions, either expressly or by necessary implication; but in this case the court finds no such use. Cooley Constitutional Limitations, page 539; 1st Woods Railway Law, See. 229; 43 Conn. 234; 62 Mich. 564.
    The necessity to the expropriating railroad corporations of the land proposed to be taken is to be understood in a reasonable sense with due regard to the needs of the corporation, hence the directness of the route, the character of the ground, facilities of construction, with other elements of judicious selection and certainly the ordinance designating the right of way of the corporations are appropriate guides exercising in their right of expropriation Lewis on Eminent Domain, Sec. 267; 82 Ala. 297; 39th Eng. & Am. Railway Oa3es, p. 13.
    A PPEAL from the First Judicial District Court for the Parish of Caddo, Land, J.

      Alexander & Blanchard and Thomas C. Barrett for Plaintiff, Appellee.

      F. P. Stubbs (Harry H. Hall, of Counsel), for Defendant, Appellant.

      Argued and submitted December 1, 1896.
    Opinion handed down December 14, 1896.
    Rehearing refused January 4, 1897.
   The opinion of the court was delivered by

Miller J.,

The defendants appeal from the judgment, decreeing the expropriation of defendants’ land for plaintiffs’ use.

The petition alleges the construction in part by plaintiffs of a railroad from Kansas City to the Gulf, by way of Shreveport; that under agreement with that city, plaintiffs have established their machine shops and have agreed to build a depot within the city limits, for which purpose the company has acquired the necessary site; it is further averred that the land sought to be expropriated is necessary for the construction of the road through and from Shreveport and to connect with the company’s depots, and with this averment of the necessity of the land for plaintiffs’ road, there is the allegation the land is not required for the defendants’ uses. The exception and answer of the defendants deny the necessity alleged for the expropriation, avers the land is part of defendants’ right of way for their railroad, is necessary for the transaction of its business; and that held already under the expropriation by defendant, no second expropriation is authorized. The jury found the issues of fact in plaintiffs’ favor and assessed the land, damages and betterments at three thousand three hundred and eighty-five dollars, and the judgment following the verdict decreed the payment of that amount to defendants. The plaintiff paid the amount into court, proceeded with the construction of their road over the land and defendants prosecuted this appeal. R. S. S. 1479, 1488.

The plaintiffs’ road under the franchises given by the ordinance of the council of Shreveport is to be constructed from the point of access on a line connecting with the site of its depot, and continuing to the front street of the city, Commerce street, on which the company’s tracks already are laid. The defendants’ tracks have been laid for years on a part of the line prescribed for plaintiffs’ road by the city ordinances; that is to say, between Murphy and Common streets, aré laid on land acquired by defendants many years ago, and by the ordinance conferring on plaintiffs their franchise for connecting lines in Shreveport, the tracks of plaintiffs’ road are required to be laid alongside of defendants’ tracks, to block nine, i. e., the depot ground of plaintiffs. This space between Murphy and Common streets awarded to the plaintiffs, is about three thousand feet, or as the verdict gives it two and sixty-one one-hundredths acres, and is a part of the larger space from seventy-five to one hundred and fifty feet wide owned by defendants. On this space defendants had but one track on which it had conducted its business for the years since it acquired the property and laid its tracks. In advance of any expropriation proceedings the plaintiffs had caused to be surveyed the space it deemed requisite, for its uses, about thirty-five feet wide on the southeast side and alongside of defendants’ tracks, leaving still left to defendants considerable space on that side, and while there is some conflict of testimony, we think it is shown, that on the northwest side there is room for another track, and by filling cuts or “fills” still another track might be laid on defendants’land. As soon, however, as plaintiffs had surveyed on the southeast side, defendants commenced the construction on that side of a siding track, and afterward completed it. The plaintiffs, thereupon, proceeded to survey the space they required further east still on defendants’ land and within the line prescribed by the ordinance, i. e., alongside defendants’ tracks. This second line of plaintiffs required all the defendants’ land on that side, and indeed, necessitated the acquisition of other land by plaintiffs. About the time of Che beginning or completion of defendants’ siding on the east side, there were negotiations between the parties of the land plaintiffs required, or for the lease of the siding track. The defendants demanded twenty-five thousand dollars for that the jury assessed at thirty-three hundred dollars. Plaintiffs refused to accede to the demand and resorted to this expropriatipn proceeding.

There is in the record a mass of testimony offered to show the feasibility of procuring land for plaintiffs’ uses without taking that of defendants, and that defendants will need the land. On the other hand, there is an equal mass of testimony controverting that of defendants’.

All property is héld subject to the’right of eminent domain. One of the conditions of that right is the public necessity for which expropriation is demanded. 2 Kent, p. 338 etseq.; Cooley’s Constitutional Limitations, pp. 523-530 et seq.; Constitution of Louisiana, Art. 156; Revised Statutes, See. 2376 et seq. No question is made that the need of land for constructing requisite connections of plaintiffs’ railroad is a public purpose or necessity in legal contemplation. The defendants’ appreciation of that necessity, seems to make the test whether or not the land of others, equally adapted as they contend for plaintiffs’ uses, can not be obtained. All the testimony seems to concede that the locality in which this land is sought to be taken is within the scope of prudent choice, but it is defendants’ contention that land a short distance away from their property should be expropriated. Both roads running through the city of Shreveport have chosen routes over the locality in controversy. We understand the ground is broken by chasms of hills,” to use the term in the record. While defendants’ testimony is to the effect that plaintiffs can tfind land .as good for their purpose within, say, two hundred feet, or a few hundred feet away from that alongside of defendants’ tracks, the testimony of plaintiffs’ witnesses is that to go further east or south would be to encounter deeper fills or chasms, and greater difficulties and expense of -construction. It is to be observed that defendants in making their selection of a roadbed through the city avoided the fills and other difficulties to which' they insist plaintiffs should submit. We have, too, on this question of the fitness of the land for plaintiff’s purpose, the ordinance of the council prescribing the line alongside of defendants’ tracks, and the verdict of the jury to be deemed an approval of that line. We think, the fair conclusion from all this, is that alongside of defendants’ tracks, as specified in the ordinance, is better suited for plaintiff’s uses than any land in^the radius indicated by defendants’ testimony. While we have examined this phase of the controversy, it must seem difficult to maintain, as the test of expropriation, that land of others than the proprietor should be taken Expropriation, in most instances, is deemed a sacrifice by the proprietor called on to make the surrender. If one proprietor could defeat the expropriation on the ground that the call should be made on another, the supposed compulsion of the law requiring private property for the public good would be of no efficacy.

The necessity in legal contemplation that is to be the guide in selecting land for an unquestioned public purpose is to be understood in a reasonable sense. There is, of course, the prohibition of excessive appropriation or the takiifg of any land not within the scope of the purpose required. Oooley’s Constitutional Limitations, 539 et seq.; New Orleans Pacific Railway Company vs. Gay, 32 An. 471. Subject to these restrictions the law permits the expropriation of property with due regard to the wants of the expropriating company, measured by the points between which the railroad connection is to be made; the facilities for construction afforded by the ground; the directness of the route and other points naturally involved in the selection of a roadbed. The question, then, is whether in expropriating, the taking of defendants’ land is within this reasonable exercise of the power. It is of weight on this branch of the case, that defendants, for their route through the city from Red river, chose their roadbed on the same line to the. extent involved in this controversy that plaintiffs select for their road through the city. While-one road goes through the city,- from the river northeast to southwest — that is the general direction, the other proceeds through the city from southwest to the' river. Each chooses for part of their lines the space under discussion enough for both tracks. The judgment of defendants is that the Oity Oouncil and the verdict of the jury all confirm the selection by plaintiffs as a judicious exercise of choice, if expropriation gives the power to take that which is reasonably required. If to all this is added the fact that the plaintiffs can have no right of way through the city without the consent of the authorities, and seek only that prescribed by the ordinance, it seems to us that the expropriation sought conforms not only with a reasonable exercise of the power, but is constrained by the exigency of the ordinance of the Oouncil. If the right to expropriate the land that is needful for the public purpose carries the limitation of a prudent exercise of the right, the courts must enforce the limitation, but can apply only the tests that are suggested by a due regard to the wants of the expropriating company, and the reasonable fitness of the land to meet such wants. These tests, we think, the record furnishes in support of the expro - priation demanded.

The defendants, however, claim their land is now in public use under the expropriation for that use, and they contend that no second expropriation is authorized. We find no evidence of any expropriation by the defendants. There is no question that this right of eminent domain extends to property already expropriated. When that purpose is announced it is simply the expression of the legislative judgment that the last public use last proposed is of greater importance than that to which the property is at the time devoted. But as a rule of interpretation the expropriation of property in public use, whether under a previous expropriation or other mode of acquisition, will not be deemed the purpose of a legislative act unless that purpose is avowed expressly or by necessary implication. Lewis on Eminent Domain, 267 et seq.; 62 Michigan, p. 564. The question then is whether the land, the subject of this controversy, is in public use. If not, it is subject to be taken for such use the same as that of any individual. If a corporation acquires more land than it requires for its uses, the land not needed is impressed with no immunity from the exercise of that power, to which all must submit. The land involved in this case, part and a small part only of a larger space, was acquired by purchase in 1858. In all that long period the defendant has had but one single track on the land. They added another when the plaintiffs manifested their purpose to lay its tracks alongside of defendants. With neither track of defendants does this expropriation propose the least interference: The land proposed to be taken is further east and devoted to no use whatever by defendant, nor had it ever been in the half century of defendant’s ownership.

There is, however, a great deal of testimony devoted to uses of the defendants for this land not exhibited in the past, nor manifest at present, but which defendants claim the future will develop. In this connection we have gone through the testimony of the negotiation of defendants with a railroad company seeking a connection with Shreveport. The issue of this negotiation it was hoped, the witnesses tell us, would have increased defendant’s business, necessitating more tracks on their land, but we observe the negotiation came to nothing. Then we have dealt with that part of the record referring "to negotiations by defendants with parties in Jefferson, Texas, west of Shreveport, promising an extension of defendants’ line to Jefferson, and this extension the witnesses claim would have accumulated business for the road, requiring more trackage. The record shows this negotiation failed, and we note that defendants have extended the lease of their short track west of Shreveport to the company who have had that lease for years, an extension not in keeping with the Jefferson project. It is also claimed that additional land will be required for yard purposes, which we suppose means space to receive on deposit cotton or freight brought or to be carried by defendant’s road, but it appears that space for that purpose has been found elsewhere, and certainly no portion of the thirty-five feet sought by plaintiffs has ever been called in requisition for yard or any other purposes. Along with the testimony as to their prospective uses, we have that of other witnesses, some connected with other railroads leading to Shreveport, familiar as they claim with the requirements of defendants’ road in the past and qualified to predict any such necessity apt to arise in the future. Without recapitulating it is enough that this speculative testimony as to the future needs of defendants for more land, is at least, as strong against, as for the defendants. We appreciate that in estimating the land of defendants liable to expropriation, that in actual use should not be the rigid limit, but there should be a reasonable regard for probable increased wants of the owner. But in this case we are confronted with the fact, that one track has amply served defendants for years; that it has laid another and has space leftreasonably sufficient, if there is any force in testimony, for additional tracks or other purposes. With the tracks on that space, and space besides, it does seem to us difficult, on any reasonable ground of necessity for defendants’ uses, to exclude plaintiffs from the thirty-five feet they seek of defendants’ comparatively much larger extent of ground. It seems to us, we must accept the conclusion there is ample ground for both roads, and henee no room for one to deny the expropriation sought by the other. The right of expropriation in such case was well applied in 82 Ala. We have considered in this connection the authorities cited by defendants against demands by one corporation for the land of another company. These authorities, arrayed in great number, affirm a principle of general acceptance and may be dealt with generally. They held, in substance, that the land in public use by one corporation can not, without legislative authority, in express terms or arising from necessary implication, be taken by another corporation. There can be no controversy about that. Thus, as those authorities maintain, grave yards are shielded from expropriation. A nearer illustration to this case are the station houses or depots of a railroad company, and so again ground in use for the purposes of a seaside railroad, though not used for tracks or depots. 122 Pennsylvania State, p. 511; 63 N. Y. 326; and other similar types of authority. But here there is no such use, nor any reasonable probability of future use, if testimony is to guide us, or if possible uses can be invoked at all. An impressive fact too, on this part of the case, that seeks to uphold the alleged use by defendants, and necessity for their needs of tbis strip of thirty-five feet, is their offer to sell for an amount in striking contrast with that awarded by the jury. We can not resist the suggestiveness of the testimony on this point. An expropriation can not be declined merely on the ground of price to be paid. The price is left to the jury and the courts, and in this, our conclusion is, was all that defendants could reasonably ask.

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


source: Caselaw Access Project

author: Miller, J,

license: Public Domain

text:
    No. 12,159.
    William Stroebel vs. Gustave Seeger.
    A tax title executed in conformity with law carries the presumption of its validity. Constitution, Article 210.
    PPEAL from the Civil District Oourt for the Parish of Orleans. Théard, J.

      W. R. Richardson and Jos. F. Walton for Plaintiff, Appellee.

      R. H. Downing and J. Boyd Grinage for Defendant, Appellant.
    Submitted on briefs December 19, 1896.
    Opinion handed down January 4, 1897.
   The opinion of the court was delivered by

Miller, J,

The defendant appeals from a judgment condemning him to take the title to property acquired by the plaintiff by an adjudication to him by the State tax collector to satisfy unpaid taxes .of the State, the adjudication having been made under the Act No. 82 of 1884.

The defendant assigns no objection to the title, save that it is derived from this adjudication of the State Tax Collector.

These titles carry a presumption in their favor which must be accepted in the absence of any contrary proof. No such proof is administered.

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


author: Breaux, J.

text:
    No. 12,185.
    Succession of Rogge, P. F. Nouvet, Executor, vs. Municipal Improvement Company.
    The rule was to compel the acljudieatee to comply with his bid and take title.
    Presumably, the property was the property of the community.
    The evidence that it was paraphernal property was not of such a convincing character as to make it appear that the title was not suggestive of litigation.
    APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      John L. Peytavin for Executor, Plaintiff in Rule, Appellant, and J. N. Augustin and W. J. Waguespaelc for Intervenors, Appellees.

      Carroll & Carroll for Defendant in Rule, Appellee.
    Argued and submitted December, 16, 1896.
    Opinion handed down January 4, 1897.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff took a rule upon the defendant to com - pel the latter to comply with the terms of an adjudication of property of the succession Of Christina M. Rogge.

At the date of her death, Mrs. Christina M. Rogge, wife of C. William Rogge was domiciled in Biloxi in the State of Mississippi.

She left a will in which she named the plaintiff as her testamentary executor. The succession was opened in Harrison county, Mississippi, also in the Civil District Court of this city.

The plaintiff obtained an order for the sale of the property involved in this litigation.

The property was adjudicated to the defendant.

The defendant, as set forth in the return to the rule, refused to take title.

The facts preceding the adjudication, regarding the title, are that Christina M. Rogge bought the property June 18, 1889. She was at the time the wife of William Rogge, who did not join in nor sign the deed of sale to the wife. He had abandoned her at the time.

When Mrs. Rogge was married to Wm. Rogge, she was the owner of property worth about fifty thousand dollars. She had funds sufficient to pay for the property, if she chose to make the purchase in her own name. The act of purchase, however, contains no declaration that the wife bought the property with her paraphernal funds. She declares in the act that she did not know where her husband was and that she has instituted suit against him for a divorce. The record reveals that this suit was afterward dismissed on account of defective pleading. Some time after this dismissal and after she had acquired the property she brought a second suit for a divorce, and a judgment of divorce was granted to her.

During the trial of the rule before us for determination the plaintiff in rule made Rogge a party to the proceeding. The rule, on mover’s motion, was discontinued as to Rogge, and trial of the rule was proceeded with contradictorily with the defendant and adjudicatee alone.

The evidence discloses that the surviving husband, Rogge, sued the succession of the late Mrs. Rogge, and alleged that the property was community property. He was examined as a witness upon the trial of the rule. He, in substance, asserted as a witness that it was community property.

The record discloses that in Mississippi property bought by the husband or the wife is his or her individual property. The law of community of acquets is not known.

Judgment was rendered in favor of the defendant in rule, and the plaintiff has appealed therefrom.

• The community begins from the day of the marriage, and is dissolved by death, divorce, separation from bed and board and separation of property.

Here the action for a divorce was brought by the wife during the community existing between the husband and the wife, and the community was dissolved by a judgment decreeing the divorce sued for some time after the property had been bought by one of the spouses.

It follows, the property having been bought during the marriage, presumably it was a community asset.

With reference to immovable property, whether it was bought in the name of the wife or the husband, or in the name of the wife alone, it is property of the community. It is incumbent upon the spouse who claims that the property is separate to prove that it is not property of the community. If he fails to procure sufficient proof, by that fact alone the property remains community asset.

The principal question presented for determination is whether the adjudieatee can be made to take title, although it is not established contradictorily with the husband that the property was the property of the wife.

The adjudicates is a third person who can not be compelled to comply with the terms of adjudication unless the presumption which makes the property a community asset has been effectually destroyed. Bachino vs. Coste, 35 An. 570.

- The vendor should tender to the adjudieatee a title free from risks a,nd not one subject to attack.

It is next urged by the plaintiff, that the presumption that the property is community property may be destroyed by written or oral testimony. In our view, that presumption is not destroyed in this case.

We were led to consider the merits of the controversy between the husband and his wife’s succession.

The ease under consideration involves a title suggestive of litigation.

Rogge was put on the witness stand. He neither absolutely admitted or directly denied that the property was the paraphernal property of his deceased wife. At seyeral points of his testimony he contradicted himself.

• He testified that his wife had ample means to buy the property, and that he did not furnish the funds. At another time, while testifying, he was anxious to create the impression that he had furnished his wife with considerable sums of money. The testimony, taken as a whole, was certainly not an absolute admission in favor of the wife’s succession.

The testimony, which, to say the least, was equivocal, taken with the fact that he had brought an action against the plaintiff here to have it decreed that the property belonged to the community, was enough to raise a serious question as to the validity of the title.

It was not shown with legal certainty that the property claimed, acquired during the community, was purchased with her separate funds.

The proposition of plaintiff, that all purchases made by the wife in the intermediate time between the demand for a divorce and the judgment granting the separation must be considered as having been made for her own account and not for the community, does not impress us.

The suit for a divorce pending when Mrs. Rogge made the purchase was dismissed. The date of any retroactive effect is that of the filing of the petition on which judgment was rendered, and not the date of the filing of the petition of the first suit, which was dismissed.

The record reveals that in Mississippi a bill for a divorce dismissed has no legal effect; it is as if no bill had been filed. A dismissal suit in Louisiana, also, in a case for divorce, can have no such effect as here claimed in matter of property bought for the community or for either of the spouses.

The facts that the domicile of the wife was in Mississippi and that she retained the management of her affairs are not determinative of the issues. The property remains in the community until it is proven that it is not the property of the community, notwithstanding the fact that the spouse by whom it was bought was a resident of the State of Mississippi.

It is settled by many decisions that immovable property in this State must be administered and disposed of under its laws, without regard to the domicile of the owner. Such property, on the dissolution of the marriage, must be distributed according to the laws of the State in which it is situated.

Now, with reference to the administration of the property retained it is urged by the wife during the marriage; it does not justify the conclusion, of itself, that the property bought is her paraphernal property. It is not enough that she had the administration; it must be shown that the purchase was made with her separate funds. A fact not established with certainty required as against an adjudicatee called upon to take a title.

We do not decide that the title is in the community. We only conclude, in the present condition of the ease (chiefly caused by contradictory testimony and the fact in addition that the husband is not a party, and that he is actually suing to have the property decreed property of the community), that the title is not one that the purchaser is bound to accept.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed.


author: McEnery, J.

text:
    No. 12,314.
    Leonce M. Soniat vs. Thomas Supple et als.
    Evidence, sucli as to drainage of a plantation, the location of ditches and fences, which go to show the character of a plantation as to its divisibility in kind, is receivable.
    The other matters are of fact, whether the plantation could he divided in kind.
    A PPEAL from the Fourteenth Judicial District Court for the Parish of Iberville. Talbot, J.

      Hébert & Hébert for Plaintiff, Appellee.

      Sims & Gondran for Defendants, Appellants.
    Argued and submitted December 15, 1896.
    Opinion handed down January 4, 1897.
   The opinion of the court was delivered by

McEnery, J.

, This is a suit for the partition of the Zacharie plantation in the parish of Iberville.

The issue presented is whether it can be divided in kind. The defendants have consolidated their interests so as to make the place, if divisible in kind, into four lots. There was judgment beloW ordering a partition by licitation. The defendants appealed.

The plaintiff is described as having a front on the Mississippi river of about five arpents, and in the rear of about nine arpents. Its average is four hundred and eighty-five 50-100 acres, and each lot, if the place were divided, would contain one hundred and twenty-one and one-quarter acres. It is impracticable to divide it lengthwise, but it could be divided into four equal parts from the longest sides. The facts to be ascertained then are, could such a division be made without deteriorating greatly the value of the place and causing loss and inconvenience to the coproprietors.

Evidence was offered as to the drainage and the fences and objected to by defendants. This evidence was offered for the purpose of showing the actual condition of the place and the obstacles in the way of a division in kind. The evidence was admissible. Every fact ought to be received in evidence which shows the character and condition of the place, its surroundings, in order to determine whether or not it can be divided in kind, so as to avoid loss and inconvenience. The plantation is cultivated in sugar cane. This kind of cultivation requires the best drainage and its cost is considerable. The evidence discloses that the main drainage is on the upper side of the place. Those acquiring lots along this drainage would have the more valuable lots, but upon them would be imposed the burden of keeping the drainage up along the entire length of the place. Those acquiring property in the rear, while they would have a right to reach the drainage canal by the natural flow of the water, would necessarily have to cut new drainage ditches to meet the changed conditions caused by the division. A fence also has to be. kept along the sides of the place, and this would impose a burden upon those acquiring front lots. The acres, according to locality, are estimated from forty to sixty dollars per acre. The land is pretty much of the same character, but there are only two hundred and fifty acres in cultivation out of three hundred and seventy-five cleared lands, and the southwest corner cultivated by proper reclamation from its swampy condition. The remainder of the plantation is in woods, to the rear of the place.

There are buildings scattered over the place; the dwelling worth say six hundred dollars, and the cabins and other buildings from fifteen to twenty dollars. The lots, with buildings on them, falling to those who drew them, would require a return in money, together with the value of the lot over and above the others. Some would get wood land, others none, and those fortunate enough to draw the lots, which would be near or contiguous to the village of Dorcey^ ville, would be in possession of a part of the place, far in excess of the value of the other lots, as the lots could be subdivided and sold .to a great advantage. If the whole place were divided into .four equal parts, and then subdivided, we learn from the evidence , that the subdivisions would be valued according to whether they fronted on the road, or the upper side, or were back of the front lots. There' is a plantation road running through the place. This would, or probably would, divide some of the lots and depreciate their value.

Altogether we are of opinion that a division in kind would cause great loss and inconvenience to the coproprietors. While the' defendants are willing to take chances of all inconveniences and losses, we do not think that a like condition should be imposed upon plaintiffs.

Judgment affirmed.


author: Nicholls, C. J.

text:
    No. 12,140.
    Bluefields Banana Company vs. Board of Assessors and City of New Orleans.
    A foreign corporation had an agent here, where it received and where it sold fruit and received the price for the same. Part of the proceeds were withheld in the hands of the agents for purposes incidental to the prosection of its business, and part deposited to the credit of the company, subject to the check of its local agent; also, for the prosecution of its business here and for such other purposes as the cimpany might direct it to be applied to. The company transacted business in New Orleans precisely as did resident business men and Arms.

      Held: An assessment of the cash in bank of said corporation is proper and warranted by the provisions of Act 106 of 1860, an act to provide an annual revenue for the State. The rule mobiUa sequuntur personam is a fiction of the law, not resting of itself upon any constitutional foundation, and which gives way before express law. - .
    A PEAL from the Civil District Court for the Parish of Orleans _ Monroe, J.

      Ivy G. Kittredge for Plaintiff, Appellee.

      F. C. Zacharie for Tax Assessor and Tax Collector, Defendants, Appellants.
    Argued and submitted December 17, 1896.
    Opinion handed down January 4, 1897.

      Plaintiff alleges itself to be a corporation incorporated under the laws of the State of Texas, and domiciled therein in the city of Galveston.
    It represents that in the month of January or February, 1894, or thereabouts, and also in January or February, 1895, or thereabouts, the Board of Assessors for the parish of Orleans assessed it for the sum of five thousand dollars as cash in bank.
    That it is a foreign corporation; that it has no property of any description subject to be assessed or taxed in the State of Louisiana; that it was never subject, in person or property, to the jurisdiction of the Board of Assessors, or bound in any manner to observe or note its illegal action in their regard; that said pretended assessment is illegal, null and void; that the State Tax Collector for the second district of of the city of New Orleans and the city of New Orleans are endeavoring, on the claim that said assessment is legal, to collect the taxes based thereon and threaten to levy upon debts and credits belonging to it; that it is entitled to have said assessment canceled and annulled and to have the State Tax Collector and the city of New Orleans restrained from collecting the taxes based thereon.
    It prayed for and obtained a writ of injunction.
    There was judgment for plaintiff and defendant appealed.
   The opinion of the court was delivered by

Nicholls, C. J.

The State tax sought to be levied is seventy-six dollars on movable or personal property. It is assessed and levied under Act 106 of 1890. The portions of the sections embracing the tax are as follows: Sec. 1 “ * * * all movable property and chattels, all personal property, all goods, wares and merchandise, and other stocks in trade in possession, on hand and under control; * * * all property held, controlled or administered in each separate capacity, as president, cashier, treasurer, liquidator, assignee, master, superintendent, manager, sequestrator, receiver, trustee, stakeholder, depositary, warehouseman, keeper, curator, tutor, executor, administrator, legatee, heir, beneficiary, father, agent, attorney, usufructuary, mandatory, fiduciary or official capacity.” * * * (The italics are our own.)

“ This enumeration shall not be construed so as to exempt from taxation any property or values not enumerated herein.” Sec. 7. “ It is made the duty of the tax Assessors throughout the State to place upon the list all property subject to taxation, including merchandise or stock in trade on hand at the date of listing within their respective districts or parishes; * *• * provided further, that in assessing mercantile firms, the true intent and purpose of this act shall be held to mean, the placing of such value upon the stock in trade, all cash, whether borrowed or not, money at interest, open accounts, credits, etc., as will represent in their aggregate a fair average on the capital, both cash and credit, employed in the business of the party or parties to be assessed. All this shall apply with equal force to any person or persons representing business interests that may claim a domicile elsewhere, the intent and purpose being that no non-resident, either by himself, or through any agent, shall transact business here without paying to the State a corresponding tax with that exacted of its own citizens; and all bills receivable, obligations or credits arising from the business done in this State are hereby declared ■assessable within this State, and at the business domicile of said nonresident, his agent or representative.” (The italics are our own.)

The plaintiff is a Texas corporation. Louis Ivy testified: A part of its business is conducted in the city of New Orleans through the firm of John Wilson & Co. The company exported fruit from Spanish America to the United States for sale. The fruit was brought to New Orleans and there sold by the agents of the company, and the money was placed there to their credit in the Mutual National Bank and the Hibernia National Bank. The only funds which the company had at the time of the assessments were the deposits. When debts and obligations of the company in New Orleans fell due they were paid by checks on these two banks drawn by the witness (Ivy), its book-keeper, who held a power of attorney so to do. He was the financial agent of the firm. He received checks, greenbacks and silver in the ordinary current business for the proceeds of the sale of the importations, and it was his rule to deposit them in the banks to the credit of the company as soon as he could. He at times received money for the company from Wilson & Co., who sold their stock for them. He received checks, except for the small local trade, which probably amounted to three hundred dollars a month. He generally put out moneys through checks, sometimes paid from money he had in hand before the bank closed. He rarely had on hand outside of the bank more than twenty-five dollars in silver. If he did it was because he received it after the bank was closed and it was too late to deposit it, and he could not do so until the next day. The largest amount was cash two hundred and seventy dollars, held for a day or two in the desk in the office until he could deposit it. He kept on hand, outside of the banks, an average of about twenty-five dollars a day to pay for telegrams, incidentals and all small amounts too small to draw a check for. If there was any surplus money in New Orleans it was at the command of the Galveston company.

The company chartered vessels in New York on voyages between New York and Galveston. The company instructed him to pay the charter money in New Orleans, the amount of the same being about “ two thousand dollars a month.” Plaintiff relies upon the proposition that moneys belonging to a foreign corporation, deposited to its credit in the banks of New Orleans, are mere credits — that they are personal property having no situs other than that of their owner, and are, therefore, not taxable in Louisiana. That it is a matter of no moment whether the corporation does business in New Orleans, and the deposits represent moneys derived from sales made there of fruit in the prosecution of its business. It relies upon the cases of the Liverpool, London and Globe Insurance Co. vs The Board of Assessors, 44 An. 765, and Gleason & Co. vs. The City of New Orleans, 45 An. 1.

On the part of the defendants it is contended that the State for the purposes of taxation may give a situs to personal property tangible or intangible, distinct from the domicile of the owner, provided it does not violate the inhibition of the State and Federal Constitutions; that while deposits in a bank to the credit of a foreign corporation are not taxable away from the domicile of the owner, as laid down in the 44th Annual (764-768) and 46th Annual (1), yet where such bank deposits are under the control of a resident agent who administers them and draws them out in whole or in part in the business of his principal, they can be taxed at the domicile of the resident agent. They cite the American and English Encyclopedia of Law, Vol. 25, page 125, and authorities in note 1, on page 127; 21 Vermont 152; 45 Missouri, 600; Brown vs. Houston, 114 U. S. 622; Cooley on Taxation, 2d Ed., 23; Welty on Assessments, Sec. 30, p. 42; 57 Bar. (N. Y.) 356; 23 N. Y. 440; 19 Kas. 415; 69 Mo. 457; Am. and Eng. Ency. of Law. Yol. 25, p. 138, and authorities in note 8; 44 An. 765; 66 How. Pr. 190; 4 Blatch. U. S. 263.

In the brief for the State counsel say: “ That the fruit imported, or its proceeds in cash, was tangible property, can not be successfully denied. To say that these proceeds were immediately deposited in bank to the credit of this foreign corporation and thereby became a credit of the corporation and passed beyond the power of the State, will not answer. The taxing power attached to the fruit and subsequently to its proceeds in money regardless of what disposition was made of the money. No such shifty evasion of the law of this sort can be tolerated. The plaintiff company has regular selling agents here who sell their fruit and turn their proceeds over to their agent, who holds a bank power of attorney. The latter deposits it in bank, has the bank book, draws checks and disburses all money for this foreign corporation. This condition of affairs makes another exception to the rule mobilia sequuntur personam.”

In Insurance Company vs. The Board of Assessors, 44 An. 768, we said: “The evidence showed that plaintiff had no money loaned on interest nor bills receivable for money loaned, nor credits for goods sold. The issue was limited to credits for premiums due, but the evidence showed that it had ‘ money in possession;’ that that was property within the State, subject to taxation. It was visible and tangible, and expressly made taxable by statute, and is taxable where situated.”

In Railroad vs. The Board of Assessors, 44 An. 768, the court again said: “ The plaintiffs, at no time, had money loaned on interest, none in possession on deposit or on hard, and none due for goods sold.” The issue was as in the case of the London, Liverpool and Globe Insurance Company, the taxability of credits due for uncollected premiums.

The decision in Clason & Co. vs. The City of New Orleans, 46 An. 1, rested upon the special facts of that particular case. The plaintiff was a foreign firm, having its domicile in Manchester, England. In one sense of the word, it did business in New Orleans; that is, it made purchases of cotton through an agent residing in that city. Its business was exclusively that of a purchaser. The cotton was not held in New Orleans for resale, for manufacture or for traffic of any kind, but was purchased for immediate export.

The funds with which the cotton was bought were really funds of the purchasers in Manchester, subject to be drawn against there to operate payments. The moneys on deposit in. bank in that case, represented the price of the property bought, and were placed there •simply as a convenience for the purpose of enablingfthe parties to make use of commercial instrumentalities as facilities for making immediate payments.

If foreign merchants were subjected to taxation on moneys sent here simply for payment of the price of property bought for immediate export, some of which, in all probability, merely passed in transitu through the State for shipment, and some of which presumptively had been already taxed, it was very obvious that the trade of the city of New Orleans would be very seriousiy and injuriously affected unless the parties, by a mere shifting of their mode of doing business and making payments, should avoid the tax. The court did not think it was justified in assuming that it was the intention of the Legislature (even if it were authorized so to do) that moneys in bank, deposited here for the special purpose of paying for cotton bought for immediate export to Europe, should be taxed.

The case is different here. The foreign corporation had an agent here, where it received and where it sold fruit and received the price for the same. Part of the proceeds were withheld in the hands of the agents for purposes incidental to the prosecution of its business, and part deposited to the credit of the company, subject to the check of its local agent.' Also for the prosecution of its business here, and for such other purposes as the company might direct it to be applied to. The company transacted business in New Orleans precisely as did resident business men and firms. It received all the advantages to be derived from the State and city governments which residents received, and we see no reason why it should not be taxed, as claimed in this proceeding, unless there be insuperable legal objections in the way. We find a statute of the State, which by its terms brings them under the operation of State and city taxation, and we are bound to give effect to its provisions unless they be in derogation of the Constitution. The unconstitutionality of the act is not pleaded, and we, of ourselves, see no unconstitutional features in it. The rule mobilia sequuntur personam is a fiction of the law, not resting of itself upon any constitutional foundation, and which gives way before express laws, destroying it in any given case where •constitutional requirements themselves do not stand in the way.

It is said that the taxation provided for can not be made effective. Whether this be true or not we can not say, but if true, the difficulties in the way of the execution of the law does not furnish a test as to its constitutionality.

We are of the opinion that the judgment appealed from is erroneous.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed.

It is now ordered, adjudged and decreed that the injunction issued herein be set aside and that plaintiff’s demand be rejected with costs in both courts.


text:
    No. 12,206.
    New Orleans & Northeastern Railroad Company vs. The Louisiana Construction Company.
    No matter how serious the complaints are in a petition, unless the prayer asks for relief by a] proper judgment under proper procedure, the suit will be dismissed, on the plea of no cause of action.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J:

      Harry H. Hall for Plaintiff, Appellee.

      J. R. Beckwith for Defendant, Appellant.
    Argued and submitted December 18, 1896.
    Opinion handed down January 4, 1897.
   The opinion of the court was delivered by

McEnery, J.

The city of New Orleans granted to the plaintiff corporation wharfage rights, for its own use, the free landing of vessels engaged in carrying to said wharves passengers and freight destined to be transported over its lines — from Port to Montegut streets. The petition recites the ordinances under which it acquired said wharf privileges and the fact that it had constructed wharves, expended money on the faith of the grant, and that it had constructed tracks and sheds and established stations along the line designated for the use of the corporation.

The petition further recites that “ in spite of the special contractual exemption aforesaid, and in spite of the fact that petitioner’s wharves and landings are not embraced in said lease or contract of the said Louisiana Construction and Improvement Company, the said company, illegally and without warrant of law, asserts its rights to collect and has collected and is collecting from vessels lying at petitioner’s said wharves and landing levee and wharf dues at the rates specified in said lease for the use of the city wharves not exempt from said charges.”

“Petitioner avers that in order to retain the business of vessels landing at its wharves, and which vessels are offered free wharfage by other railroad companies in the city of New Orleans, petitioner has been compelled to guarantee and has guaranteed to the owners of said vessels that no wharf or levee dues will be collected from those vessels occupying and lying at or using petitioner’s wharves by its consent and on petitioner’s business.

“That in order to avoid the issuance of Admiralty process against said vessels, petitioner has been compelled to pay and is paying such wharf and levee charges to the said Louisiana Construction and Improvement Company, under protest however, and with notice to it that it denies the right or legality of such charges and that it will sue to recover back the same, that it has illegally exacted from petitioner.

“ Petitioner avers that its interest herein in maintaining the exemption of its said wharves from levee and wharf dues as aforesaid largely exceeds the sum of ten thousand dollars. An averment is made that should this court hold that the defendant company, under its contract with the city, could collect wharf and levee dues from vessels lying at petitioner’s wharves, with its consent and on its own business, that it would be the impairing of the obligation of petitioner’s contract and contrary to the Constitution of the United States. After making the city of New Orleans a party and praying for citation on defendant, the relief prayed for is as follows: That “ there be judgment in favor of petitioner and against defendants decreeing that the Louisiana Construction and Improvement Company is not warranted in law and can not legally collect levee or wharf dues from any vessels lying at or using the wharves of the New Orleans & Northeastern Railroad Company on the Mississippi river between Port and Montegut streets, said vessels being on the business of said company and at said wharves with its consent; and further, decreeing that all vessels occupying or lying at said wharves discharging or receiving cargo thereat with the consent of petitioner and on the business of petitioner shall be exempt from payment of all levee or wharf dues; ” and concludes with a prayer for general relief. There was an amended petition filed, elaborating, but not changing materially the averments in the original petition.

An exception of no cause of action was filed and overruled, and -on a trial on the merits there was judgment for the plaintiff.

The exception of no cause of action should have been maintained.

There is no prayer for a money judgment against defendants, no demand for the ownership or the possession of any property. Nor is there any demand for any writ by which petitioner’s rights could be preserved, or any demand for the issuing of an injunction by which the wrongs complained of could be prevented. There are serious grievances and complaints, but no redress prayed for. We have ordinances of the city of New Orleans and contracts thereon submitted to us, in which rights of plaintiff and the defendant company apparently conflict, and we are asked to decree that the defendant abstain from asserting a right claimed by it under its contract. Our decree, if the prayer were granted, would be simply that the plaintiff corporation is right in its interpretation of the ordinances of the city in it3 favor and its contracts thereunder. We would thus interpret and construe a contract, without the power to •enforce our decree, unaided by a restraining order. The suit is in its nature hypothetical; the submission to us of an abstract proposition. We do not mean to say that the complaints are not serious. They are of sufficient gravity to warrant a suit in the proper procedure.

The judgment appealed from is avoided and reversed, and it is now ordered and decreed that plaintiff’s suit be dismissed as in case of non-suit, plaintiff to pay all costs.


author: Watkins, J.

text:
    No. 12,352.
    State ex rel. Henry G. Dobson vs. E. F. Newman, Justice of the Peace.
    One single cause of action can not be split up ana divided into a multiplicity of suits for the purpose of defeating the jurisdiction of the court to which the action jurisdictionally belongs; and that, if it be thus divided and the multi* plicity of suits be consecutively filed in a court not constitutionally endowed with jurisdiction of the whole sum, or entire cause of action, same will be treated as one single suit, and our writ of prohibition will go to the judge of the court entertaining the suits and arrest their further progress.
    QN APPLICATION for Writs of Prohibition.

      Thomas O. Benton for Relator.
    Respondent Judge pro se.

      Stubbs & Russell for Golson Brothers, Respondents.
    Submitted on briefs December 19, 1896.
    Opinion handed down January 4, 1897.
   The opinion of the court was delivered by

Watkins, J.

The relator’s claim to relief is predicated on the following state of facts, viz.:

That the commercial firm of L. D. & G. T. Golson, doing business in the city of Monroe, within the jurisdiction of the respondent, Newman, filed in his court, simultaneously, seventeen suits having the consecutive numbers 115 to 131 inclusive, against him (the relator) , each one of said suits being for the sum of ten dollars and aggregating one hundred and seventy dollars, an amount in excess of the jurisdiction of his court.

That these several suits are based upon open accounts of ten dollars each, dated on seventeen consecutive days, and' all filed in respondent Newman’s court on the same day, the 10th of November, 1896 — same being identical in every respect except as to date, as will be shown by reference to the copies of the several citations that are annexed to his petition for reference.

That the plaintiffs in said suits have but one cause of action, but they have been illegally, unjustly, maliciously and oppressively divided into seventeen different suits in order to avoid and evade the jurisdiction of the District Court and to deprive him (relator) of his legal right of appeal, to multiply the costs against him in favor of the respondent justice of the peace, and to “ bring the courts of the State into contempt by making them the instruments of oppression, petty spite and vengeance.”

That the respondent justice of the peace has no jurisdiction of the cause of action of said suitors, L. D. & G. T. Golson, and is not competent to entertain and decide same, thus illegally divided into seventeen different suits.

That he filed pleas to the jurisdiction of the justice of the peace in •each of said seventeen different suits, but same were overruled; and that he (relator) subsequently applied to the judge of the Fifth Judicial District, for a writ of prohibition, and same was by him refused because the relief demanded was not in aid of his appellate jurisdiction — the several amounts being only ten dollars each.

The purport of the return of the respondents, making common cause, is, that Golson Brothers were and are engaged as green grocers, selling in the city of Monroe fish, oysters, fowl, eggs and game; and have been deriving a lucrative business for two years past in the stalls of the public market of that city, which they rented from the farmer or lessee thereof, paying in advance and daily the rent charge for same, as fixed by city ordinance governing said market.

That during the summer of 1896, the relator became the lessee of said market, to whom said Golson Brothers applied for the lease of certain stalls in which to conduct and operate their said business; but this privilege was by him arbitrarily and peremptorily refused, notwithstanding they made him a lawful tender of the full amount of the fees, he (relator) was entitled to demand and receive.

That on account of relator’s refusal to lease Golson Brothers a stall, they were compelled to sell their goods away from the market; and, on that account, he (relator) caused them to be arrested for violating the city market ordinance which prohibited the sale of such articles at other places than the public market place.

That respondents, Golson Brothers, repeated their tenders and demands daily, for the rent of stalls for a number of days, but without avail; and they continued to make their sales as aforesaid for a number of days, continuously, and were just as frequently and continuously arrested and fined for the same for seventeen consecutive days.

“That the persistent and malicious refusal of said (relator) Dob-son to accept the rental from day to day as tendered inflicted a daily loss on respondents (Golson Brothers) each day, independent of the other, the damage each day being caused by the refusal on that particular day; and that while the course pursued by (relator) Dobson, a public servant or functionary, was clearly vindictive and malicious, there was no other way whatever by which he could be brought to an appreciation of the daily wrongs and injustices he was inflicting on respondents (than) by reminders in a court where the law’s delays would be duly available in the minimum. And (that) it was only after the trial of two suits, and the filing and service of seventeen other cases, of which (the relator) now complains, that he saw his duty as a quasi-public officer and accepted the tender on the 11th of November, 1896, and permitted respondents (Golson Brothers) after tedious and expensive delays, to resume their business.
“That each day’s tender of rent by respondents (Golson Brothers) and the peremptory and unreasonable refusal thereof by Dobson, was a distinct and separate cause of action; and while respondents, if they had seen proper, might have cumulated their several causes of action into one suit, they were not aware of any provision of law which required them so to do, and they therefore adopted the plan which in their judgment would soonest bring Dolson, market lessee, to a sense of his ridiculous attitude and relieve them from his malicious and unwarranted impediment to the exercise of their usual calling.
“That the persistent and malicious refusal, each day, by Dobson, relator, to permit (Golson Brothers) respondents to pursue, legally, their chosen business, was a separate and distinct cause of action— each a quasi-offence against the rights of respondents.”

The case may be said to fairly stand upon the foregoing synopsis of the petition and return, as the exemplifications from the records of the respondent justice of the peace annexed thereto fully substantiate same, and there is, practically, no difference between the two.

In the brief of relator’s counsel it is stated that at the public letting of the market the respondents (Golson Brothers) were unsuccessful competitors of the relators, and that when they subsequently demanded the right to rent a stall, it was refused upon the ground that the lessee was prohibited from renting to them because they are in arrears to the city on account of their former lease.

Counsel also attracts our attention to the fact that relator was not only supported by the city charter and ordinances in the position relator had assumed, but, further, to the fact that the lease of a stall in the market was a continuing one, for a fixed and definite period of time, notwithstanding the. dues therefor were payable daily by the lessees thereof.

The question tersely stated is, whether the respondents, Golson Brothers, had several different causes of action, suable separately, or only one cause of action which could be properly determined in one suit.

A casual inspection of the return of respondents, as indicated in the foregoing extracts therefrom, will plainly show that the cause of action stated is one ex delicto for damages alleged to have resulted from the refusal of relator to lease them a market stall; and it is equally plain that it constitutes but a single indivisible cause of action, notwithstanding the right to lease a stall was demanded by them on seventeen consecutive days, and said demand was met by as many consecutive refusals by the relator.

For all practical purposes, one single demand, accompanied by an appropriate tender, was enough; and if his right be conceded to repeat the demands to the number of seventeen they might, with equal propriety, have been continued indefinitely.

But we need not go outside of the respondents, Golson Brothers return, for the gravamen of the dispute which superinduced and controlled their proceedings and animated them in the course they pursued, for it says “ that while the course pursued by Dobson, a public servant and functionary, was clearly vindictive and malicious, there was no other way whatever (by which) he could be brought to an appreciation of the daily wrongs and injustices he was inflicting on (them) than by reminders in a court where the law's delays would be only available in the minimum."

And again: “That it was only after the trial of two suits (previously filed) and the filing and service of seventeeen other cases of which (the relator now complains) that he saw his duty as a quasi-public officer, and accepted the tender, on the 11th day of November, 1896, and permitted them, after tedious and expensive delays, to resume their business,” styling the relator’s conduct a quasioffence.

Taken altogether, it is quite evident that this multiplicity of small suits for unappealable amounts, instituted in the court of the respondent justice of the peace, was resorted to by the other respondents, Golson Brothers, for the purpose of inflicting a punishment upon the relator, and that the intended purpose had been thereby, in a great measure, accomplished.

Oan a series of small suits, thus contrived and designed, be recognized and sustained as jurisdictional?

In Reynolds & Henry Construction Company vs. Mayor and City Council of Monroe, 47 An. 1289, it was held that a creditor “will not be permitted to divide his claim and sue the defendant in instalments.”

In State ex rel. Rosetta Gravel Paving and Improvement Company vs. Judges, 47 An. 1301, it was held that “when several suits, identical in every respect, are filed for the purpose of obtaining the allotment of one to a certain division of the Civil District Court, the first assignment of one will carry the others to the same division, as there is but one case in fact and in law.”

In French vs. Landis, 12 Robinson, 633, the court said:

“But it is clear that the action cannot be divided, and a part sued for in that case and a part in this. If judgment were rendered against the defendant in that case, for the sum demanded as damages for malfeasance in office, we think it clear it could be pleaded in bar to the present action founded on the same cause.” O. P. 335.

In State ex rel. Schoenhausen vs. Judge, 47 An. 701, we made a writ of prohibition peremptory against the respondent for having exceeded the bounds of his jurisdiction in having sentenced the relator to several distinct and different periods of punishment for several distinct and different contempts of his court in having disobeyed his order of injunction on several different consecutive days, the opinion employing these words, viz.:

“ If it is competent to divide the offence of conducting a saloon in disregard of the law, into parts corresponding with the iramber of nights the saloon has been opened, and thus authorize eight sentences of ten days each, propounded at the same time on eight different rules, there could be no potency in the law fixing the maximum penalty for contempt at ten days’ imprisonment. The same theory of dividing the offence into parts might be extended to the hours of the days of opening, treating each hour as a distinct offence, and thus sanction an indefinite and prolonged imprisonment, notwithstanding the limitation of ten days in the Code.”

Like principles were stated and sustained in State ex rel. Garvey et al. vs. Whitaker, Recorder, 48 An. 528, wherein a city recorder was restrained by a writ of prohibition from entertaining jurisdiction and maintaining against the relators a multiplicity of prosecutions growing out of the same transaction, at a number of consecutive periods of time in one night.

In Clerc vs. Boudreaux, Mayor, 38 An. 732, this court held that a justice of the peace has no jurisdiction ratione materise to entertain a suit in which damages are demanded, and defendants are enjoined from claiming and collecting daily charges for the use of a market stall,” etc.

From all of the foregoing adjudications we can easily gather the principles which must control our decision of this case, and they are, that one single cause of action can not be split up and divided into a multiplicity of suits for the purpose of defeating the jurisdiction of the court to which the action jurisdictionally belongs; and, that, if it be thus divided and the multiplicity of suits be consecutively filed in a court not constitutionally endowed with jurisdiction of the whole sum, or entire cause of action, same will be treated as one single suit and our writ of prohibition will go to the judge of the court entertaining the suits and arrest their further progress.

That is the situation which is confronting us now. The respondents, Golson Brothers, feeling themselves aggrieved at relator’s declination of their demand to lease a market stall, filed seventeen suits for unappealable amounts, representing a single claim for damages ex delieto, in the court of the respondent justice of the peace, not possessing jurisdiction of the single cause of action.

To our thinking, it is clear, that the respondent, justice of the peace, exceeded the bounds of his jurisdiction in entertaining said seventeen suits, and our writ of prohibition should be made peremptory as to all respondents, forbidding them, or either of them, to take any further proceeding therein.

It is therefore ordered and decreed that the provisional writ of prohibition be made peremptory and that all cost, be taxed against the respondents in solido.'


text:
    No. 12,342.
    Postal Telegraph Cable Company of Louisiana vs. Morgan's Louisiana & Texas Railroad and Steamship Company.
    Act. No. 124 of 1880 gives the right to construct a telegraph line over a railroad’s, right of way.
    The acts of Congress of 1866 and 1872 are on the same subject and give the right to. construct aline of telegraph, under certain conditions, along -and over the right of way of railroads. The State law is subordinate to these acts, but may be resorted to for condemnation and compensation.
    Doctrine as to damages awarded by the jury in condemnation cases in case of Telegraphic Cable Company vs. Railway Company (43 An. 522) affirmed.
    A PPEAL from the Civil District Court for the Parish of Orleans.. King, J.

      Farrar, Jonas & Kruttsohnitt and J. SC. Me Leary for Plaintiff, Appellant.

      Denégre, Blair & Denégre for Appellant.
    Argued and submitted December 17, 1896.
    Opinion handed down January 4, 1897.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff corporation, organized under the laws of Louisiana, instituted this suit to obtain the condemnation of the property of the defendant corporation, necessary for the operation of its line of telegraph over the right of way of the defendant corporation.

There was an exception of no cause of action filed.

The ground of the exception is that Act 124 of 1880 does not authorize the construction of a telegraph line over the right of way of the defendant corporation; that said act only authorizes the construction parallel to and beyond the right of way, as the right of way is essential to the proper and successful operation of the railroad, and that the construction of telegraph lines would, by multiplication of wires, interfere with the running of trains, and the possible falling of poles would endanger the safety of trains. The act authorizes the construction of telegraph lines along and parallel to any of the railroads in this State. It does not state how far they shall be from the railroad, but there is a proviso that there shall be, by the construction of the lines of telegraph, no obstruction in the way of the operation of the railroad. If the location of the line is too near the road, the pleadings in this case do not warrant us in passing upon this fact. The question presented, first, is there authority in said act for the use of a part of the right of way to construct said plaintiff’s line; and second, the amount of compensation to be awarded the defendant.

So far as the location of the telegraph line over defendant’s right of way is at issue, the act of Congress of July, 14, 1866, provides “ that any telegraph company now organized, or. which may be hereafter organized under the laws of any State of the Union, shall have the right to construct, maintain and operate lines of telegraph over and along any of the military or post roads of the United States, which have been or may hereafter be declared such by act of Congress, provided said lines shall not be so constructed as to interfere with travel on such roads, and provided also: “that before any telegraph company shall exercise any of the powers or privileges conferred by this act such company shall file its written appearance with the Postmaster General of the restrictions and obligations required by this act.” Congress in 1872 declared all the railroads in the country which are now or may hereafter be in operation, post roads. The plaintiff corporation has filed its appearance and acceptance of the provisions of the act of 1866. The defendant contends that as the plaintiff is proceeding under act of 1880, he must be confined to its provisions. But the act of Congress is paramount, so far as location or the right of way is concerned, and the act of 1880 is auxiliary to it, and provides for the method of condemnation and compensation. The act of Congress of 1866 authorizes no compulsory process. Pensacola Telegraph Co. vs. Western Union. Telegraph Company, 96 U. S. 1. Hence the necessity of resorting to State process for condemnation and compensation.

-On the merits we find some difficulty in arriving at a satisfactory 'Conclusion as to the amount which should be awarded the defendant for the use of the right of way. The inconvenience which the defendant may experience is controverted. It is asserted by plaintiff’s witnesses that the establishment of the telegraph line will cause no inconvenience to defendant, but, on the contrary, will be an advantage. This, defendant’s witnesses deny, and we believe with them that inconveniences may occur, ánd additional burdens may be imposed upon defendant. But we have no means of ascertaining the amount of damage in money that would be inflicted upon defendant. This inconvenience is an element, however, to go into the general estimate. The lands may, along defendant’s right of way, be of peculiar or particular value for specific purposes, but we do not understand that they are now devoted to these purposes. The plaintiff must, however, make compensation proportionately for the cost and expense of defendant in putting in condition the right of way. It can not avail itself of improved conditions without compensation. The construction of plaintiff’s line will occupy a right of way of defendant of some ten feet, with its cross pieces on poles.

We do not care to disturb the verdict of juries in case like the instant one without manifest injustice is done in either underestimating or the giving of excessive awards.

Telegraph Cable Co. vs. Railway Co., 43 An. 522.

We are of the opinion that the jury returned a verdict substantially correct.

Judgment affirmed.


text:
    No. 12,326.
    The State of Louisiana vs. James Green.
    ‘To quash a venire on the ground of irregularity in the proceedings of the jury commissioners, in drawing a jury panel, the defendant must make his point ‘dear and certain. It will not do to make it probable merely.
    The refusal of a trial judge to grant a new trial on tlie ground of newly discovered testimony will be sustained when it appears that it was only cumulative.
    APPEAL from the Twentieth Judicial District-Court for the Parish of Ascension. Guión, J.

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

      E. N. Pugh, for Defendant, Appellant.
    Submitted on briefs December 5, 1896.
    Opinion handed down December 14, 1896.
    Rehearing refused January 4, 1897.
   The opinion of the court was delivered by

Watkins, J.

The defendant is charged with murder, was convicted of manslaughter and sentenced to imprisonment at hard labor in the penitentiary for a term of six months; and from the verdict and sentence he prosecutes this appeal, relying upon one bill of exceptions, in which his counsel assigns as error of the trial judge, his refusal to quash the general venire on account of alleged irregularities in the manner of drawing the same, and other bills to be found in the transcript.

The motion to quash and set aside the venire of jurors is to the effect “ that said venire was not drawn in accordance with law, and that a trial by (jurors drawn from) said venire will be a fraud, and cause your mover herein great and irreparable injury;” and it charges, that the “ drawing of said venire was illegal and contrary to law on its face (in) that only four members of the (jury) commission were present, and there is nothing to show that the members of said commission were notified in accordance with Sec. 8 of Act 99 of 1896. That, on its face, the three hundred names required by See. 4 of said act were not drawn as required and laid down in said section of the act, which was violated in every respect.”

On the trial of this motion, counsel for the defendant introduced and filed in evidence the proees verbal of the drawing of the venire and the record of the proceedings of the jury commission, and rested. The District Attorney offered no evidence. The trial judge, in overruling the motion, assigned no reasons, and none are appended to the bill of exceptions reserved to his ruling by defendant’s counsel.

We have extracted from the brief of defendant’s counsel and reproduce the proees verbal of the jury commission, so as to show clearly the contention upon which defendant’s counsel places reliance.

It is as follows, to-wit:

“We transcribe in full the entire record connected with the drawing of this jury.
“General Venire List.
. “ August 19, 1896.
(Here follow three hundred names.)
“State oe Louisiana,)
“Parish of Ascension. /
“Be it remembered that on ihis 19th day of August, 1896, we the undersigned jury commissioners of the parish of Ascension, duly appointed by the judge of the Twentieth Judicial District Court, evidence of which appointment being duly entered upon the minutes of said court and duly sworn evidence of which being filed and of record, did meet at the office of the clerk of said court; and Christian Kline, one of the commissioners, in the presence of the •other commissioners and two disinterested witnesses, proceeded to draw from the ‘general venire box,’ one at a time, the number of names of persons required for service at the ensuing term of the Twentieth Judicial District Court for this parish, to be holden on Monday, October 12, 1896. And therefrom fifty names were drawn to compose the grand and petit jurors for the first week of said term of court, to-wit: (Fifty names.)
“ And it being the judgment of the jury commissioners that a jury may be required for the second week of said court at said term, thirty additional names, to serve as petit jurors for the second week of said court, were in the same manner and at the same time drawn from said ‘general venire box,’ and were as follows, to-wit: (Thirty names.)
“ And it being the judgment of the jury commissioners that a jury may be required for the third week of said court at said term, thirty additional names, to serve as petit jurors for the third week of said court, were in the same manner and at the same time drawn from said ‘general venire box,’ and were as follows, to-wit: (Thirty names.)
“ And the said commissioners did thereupon place the ballots which were so drawn for each week in separate envelopes, under seal, and endorsed thereon the week for which they were respectively drawn, and the whole being placed in a box provided for that purpose, said box was sealed and placed in the custody of the clerk -of the court for use at the next term of the District Oourt of this parish.
“ In faith whereof we have signed the present proees verbal in the presence of one another on the day, month and year first above written.
“ (Original signed) C. Kline
C. A. Bullion.
J. E. Landry.
John F. Landry.
Fred. Landry,
Clerk.
“Witnesses: J. F. Fernandez.
J. T. Blouin.
“ A. true copy:
(Seal) Fred. Landry,
Clerk of Court.”

In order to obtain an accurate idea of the points of objection taken by defendants’s council, the statute under which the jury was drawn must be examined and analyzed.

The third section provides, that the District Judge of a country district shall select and appoint five discreet citizens, who, with the clerk of the court, who shall be ex officio a member thereof, shall constitute a jury commission for each parish within his district.

It further provides that the evidence of such appointments shall be the written order of the judge, which shall be entered upon the minutes of the court.

It further provides that “three members of said commission, together with the clerk of the District Court, shall be a sufficient number to perform the duties imposed by this act, provided all the members shall have been duly notified by the clerk of the District Court -of the time and place designated by him for the meeting of said commission, which notification shall appear from the certificate of the clerk in case of the absence of any member thereof.”

The fourth section provides that said commission shall, within thirty days after their appointment, select, according to the provisions thereof, the names of three hundred persons, a list of whom shall be made by the clerk under the supervision of the commission- and supplemented thereafter from time to time as therein directed.

That each of their names shall be written by the clerk on a separate slip of paper, which shall be deposited in a box denominated the general venire box. That within not less than thirty days prior to the meeting of a jury term of court the jury commission shall meet and rectify and revise the aforesaid list and the general venire box. That it shall be the duty of the clerk of court to make a prooes verbal of the acts of the commission and record same in a book to be provided and kept for that purpose, and that it shall be signed by the clerk, the members of the commission and the witnesses.

The fifth section provides that within thirty days of the meeting of a jury term of court the commission shall meet and “ draw from the general venire box,” one at a time, the number of persons required for service at the ensuing term of court, and the first fifty names so drawn shall compose the grand and petit jurors for the first week of the court.”

That the “ clerk shall keep a record of the drawing with a list of all names in the order they are drawn and showing the weeks for which they have to serve; and, when the drawing and the proees verbal is complete, shall deliver a copy of same to the sheriff,” etc. (Act. 99 of 1896).

1. Comparing the prooes verbal which is in evidence with the law it will be seen that there was not only a majority of three of the jury commissioners out of the five appointed, present and participating in the drawing of the jury, but there were four of them present in addition to the clerk of the court.

Counsel’s insistence is that the proees verbal shows that one of the commissioners was absent, but fails to show that all the members of the commission had been duly notified by the clerk of the time and place at which the commission was to assemble. Counsel has misapprehended the direction of the statute in this particular, which says this “ notification shall appear from the certificate of the clerk in case of the absence of any member thereof.”

Non constat that, if the proper source of information had been examined and resorted to, the proof could not have been supplied.

2. With régard to the other part of counsel’s argument we deem it a sufficient answer to say that it is the fourth section of the act which directs the manner in which the jury commission shall form and prepare the general venire box and the list of three hundred names composing same, and the fifth section indicates the modus operandi of drawing a jury from the general venire box for service at a term of court.

The proceedings of the commission are entirely distinct. Consequently it will not do to argue that no general venire box had been formed at all, because the proees verbal of the acts of the jury commissioners in drawing a jury did not go into the details of its formation. But the prooes verbal does state that the commission “ proceeded to draw from the general venire box” certain names, and the list of the names of the three hundred persons composing the general venire box is annexed to and forms a part of the proees verbal itself.

Had that question been explored by proof we feel satisfied that this presumption of the existence of a general venire box would have been confirmed. We are of opinion that the motion to quash was properly overruled. State vs. Saintes, 46 An. 547.

With reference to the refusal of the judge to grant a new trial on the ground of newly discovered witnesses we think he conformed to precedents firmly established, as the testimony proffered was cumulative merely. State vs. Jones, 46 An. 545. We ffnd no reviewable error on the record.

Judgment affirmed.


author: Miller, J.

text:
    No. 12,190.
    Lawrence G. Cronan vs. Crescent City Railroad Company.
    It is the duty of the carrier to convey the passenger safely to his destination, any want of care on the part of the street car conductor resulting in injury to the passenger will make his principal responsible, but to calla boy passenger to the platform of the car about to reach his destination, the signal to stop the car given and the boy called at the i*ight time, will not be deemed negligence of the conductor charging the carrier with responsibility for injuries to the boy by falling from the platform or car steps, the fall being due to his own imprudence. Hutchison on Carriers, Sec. 558 ei seq., 665, 666 et seq.; 102 U. S. 451.
    The court distinguishes this case from that of negligence implied from allowing boys of tender age to ride on platforms of street cars. 72 Wis., p. 72; 27 Mich. 510; 75 Pa. 86.
    The carrier of passengers will not be held responsible for injury to a boy passenger caused by his own imprudence, merely because of his age, nearly ten years. Hutchison, Sec. 666 etseq.y and authorities there citéd.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Benjamin Rice Forman and B. R. Forman, Jr., for Plaintiff, Appellant.

      Farrar, Jonas & Kruttschnitt for Defendant, Appellee.
    Argued and submitted November 5, 1896.
    Opinion handed down November 16, 1896.
    Rehearing refused January 18, 1897.
   The opinion of the court was delivered by

Miller, J.

The appeal is from the judgment of the lower court, rejecting plaintiff’s demand for injuries to his minor son, arising, the petition alleges, from the careless striking or pushing the son by the conductor of defendant’s street railway car, the son being a passenger, and by that striking or pushing, plaintiff’s son fell from the car with great force on the stone pavement, sustaining the bruises and other injuries for which the suit seeks damages.

The answer is the general issue, and imputes the injuries of the son to his fault and negligence in jumping from the car while in motion.

The allegation in the petition is of negligence on the part of the conductor that would, if sustained by testimony, fix liability on the defendant. It is the carrier’s duty to carry his passenger safely to his destination, and any carelessness of the conductor in striking, pushing the passenger, or other form of imprudence, whereby he falls from the car and is injured, will make the carrier responsible. Story on Bailments, Sec. 593 et seq.; Hutchison on Carriers, Sec. 553 et seq.; Pennsylvania Company vs. Rey, 102 U. S. 451; New Jersey Steamboat Company vs. Brockett, 121 U. S. 637.

We have, therefore, given careful attention to this branch of the case. It seems that when the car neared the corner at which the boy was to alight he came to the platform on the signal of the conductor, passed, or, as he says, “ dodged,” under his arm, raised to pull the bell-rope for giving the requisite notice for stopping to the motorman. The boy testifies he was struck on the shoulder by the arm of'the conductor in its descent from pulling the bell-rope. A fellow-passenger, seated near the door of the car on the side opposite to that on which the boy was to alight, testifies most distinctly the boy had reached the step, fell from it when the conductor’s arm was still raised, and was not struck by it. The testimony of the fellow-passenger is not marked by the expressions often occurring in negative testimony. He states he had the boy in full view, saw him fall, and saw the conductor’s arm raised at the time, and it did not strike the boy. In aid of this testimony it is urged on us that in pulling the bell-rope the conductor used his hand in a direction lateral to the rope; does not move his arms downward, and even if downward that the slack of the bell-rope is not sufficient, considering the height of the rope from the platform, to permit the elbow of the conductor’s arm to come in contact with the shoulders of a boy shown to be four feet five inches high. Whatever the force of this argument, it is aided, if, according to the testimony of the fellow-passenger, the boy was on the step. But, irrespective of the argument based on the position and height of the boy, the distance of the bell-rope from the platform or the step, in the condition of the testimony, to sustain the charge of negligence in striking or pushing the boy, we would have to disregard the very positive testimony of the fellow-passenger, and the equally distinct testimony of the conductor, that the boy was neither pushed nor struck. The boy is, doubtless, truthful of his impression. His statement “ he dodged under the conductor’s arm, he went to pull the bell-rope, and hit him (the witness) in the back, and that is all he knew until he was brought home lying in bed,” etc., puts the boy with his back to the conductor, and we are inclined to think the supposed stroke on the boy’s back was an inference, but however regarded, confronted as the testimony of the boy is, with that of the fellow-passenger and’the conductor, we are unable to accept the theory of the petition as that of the accident. On this issue of fact, too, the judgment appealed from was against plaintiff, and the record shows, in our opinion, no basis to disturb the conclusion of the lower court on this branch of the case.

The plaintiff conceives that the testimony furnishes a basis of liability of the defendant,- although noc alleged in the petition, i. e., that the boy was exposed to danger on the platform. The defendant earnestly contends that plaintiff should be restricted to the cause of the injury stated in the petition. We have, however, considered the testimony on which the plaintiff relies. The plaintiff brings to our notice the rules of the defendant company for the guidance of its conductors and motormen, one of which rules is, that children unattended by their parents will not be permitted to stand on either platform of the car. The plaintiff claims the rule was not observed in this case; that its non-observance caused or contributed to the accident; that there was negligence of the conductor chargeable to the defendant. The law with reason exacts of the carrier greater care of the passenger, a child of tender age, than of an adult. Hutchison on Carriers, Secs. 665, 666 et seq. The rule simply affirms the prudence enjoined by the law. The child, in the language of the text writer, should not be permitted to occupy positions of danger, nor otherwise expose themselves to injury, at least without warning. The cases illustrating this are cited by the text writer and by plaintiff. In 75 Penn. State, the boy thirteen years old was permitted to ride on the platform of the car, with no admonition or objection from the conductor, and announcing his purpose loud enough for the conductor to hear, the boy stepped off the car while in motion, was dragged by it and was injured. The case cited from 14 S. W. we have not examined, and presume it is of the type indicated in the text-book. In 27 Michigan, p. 510, the child was permitted to ride on the platform, fell off and was injured. In 72 Wisconsin, p. 42, the car passed the station, the destination of a boy passenger, it being intended the train should return to that station, but the boy, ignorant of this intention, jumped from the moving train and was injured. Hutchison on Carriers, Secs. 665, 666 et seq. In the first of these cases the appellate court set aside the verdict directed by the lower court, and held the question of negligence should have been submitted to the jury. In the cases from 27 Michigan and 72 Wisconsin, the defendant carriers were held liable, in the one case, because the conductor permitted the children to ride on the platform — a position of danger; and in the other, because the child was not told the car was to return after passing the station. In this case, the boy’s account is, when he got between South and Lafayette street, the conductor signaled • him to come to the platform, saying “the next corner is yours; ” the boy states he dodged under the conductor’s arm, that when he went to pull the bell he hit him (the boy) on the back and he adds, that is all he knew until he found himself at home in bed. We gather from the other witnesses that when the car got to South street, the boy’s destination, the motorman motioned the boy to the platform, that he left his seat, came out, and as the conductor put his hand on the bell to pull it, and before he had time to pull, the boy had fallen off the car. The testimony to this effect comes from a fellow-passenger, and to some extent, at least, is supported by that of other passengers and the conductor. It seems to us the case is distinguished from that in which the boy passenger is permitted to ride on the platform. To use the platform in lieu of the seats inside during* the course of the transportation,.is not the same as callingthe boy to the platform when the car is about stopping at his destination. The boy was in his seat when called until called to alight. We do not understand it to be questioned that the stop signal was made and the boy called at the right time, and he had to come to the platform to alight. His fall after he got there, not caused by the push of the conductor, as charged in the petition, must, in our view, have resulted from his missing his footing on alighting from the car before it came to a full stop. The evidence submitted compels the conclusion the fall was due to his imprudence.

It is urged on us, however, that negligence is not imputable to children of tender age. It is, however, equally true that carelessness in children who are of age sufficient to exercise discretion for the avoidance of injury to themselves when traveling in street cars, is recognized. Hutchison on Carriers, See. 666 et seq. The law does not fix this age of discretion. All that we have before us on this branch of the case is, that the parents of the boy deemed him old enough to travel by himself, and the fact he was nearly ten years-of age. If, as we hold, he was not exposed to peril and could have left the car with safety using ordinary care, we do not think the defendant can be held liable merely and only because of the boy’s age. Neither reason or the authorities exact that the carrier of passengers shall anticipate and guard against injuries which ordinary prudence would avoid, and that prudence, it seems to us, is not dispensed with on the part of a boy placed on the car by his parents and of that intelligence usual to the age of ten. We can not, therefore, on this ground, that his age, in effect, made his imprudence the neglect of the conductor, hold defendants liable.

We have given attention to the case in all its aspects and to the authorities cited by plaintiff, and our conclusion is the defendants can not be adjudged responsible for the accident.

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


text:
    No. 12,315.
    The State of Louisiana vs. Jake Young.
    Act 59 of 1896 does not repeal Sec. 792 of the Revised Statutes.
    The question is one of intention of the Legislature.
    By making it possible to inflict a greater punishment of a similar character to the punishment under the old law, the Legislature has not made manifest an intention to repeal the old law.
    APPEAL from the Twentieth Judicial District Court for the Parish of Assumption. Guión, J.

      M. J. Cunningham, Attorney General, and G. A. Gondron, District Attorney, for Plaintiff, Appellant.

      John Marks (E. N. Pugh, of Counsel), for Defendant, Appellee.
    Submitted on briefs November 21, 1896.
    Opinion handed down November 30, 1896.
    Rehearing refused January 4, 1897.
   The opinion of the court was delivered by

Breaux, J.

The defendant, Jake Young, was indicted by the grand jury for the parish of Assumption in September, 1896, for assault with intent to commit rape.

He interposed a demurrer and a motion to quash the indictment on the ground that by Act No. 59 of 1896, the Art. 792 of the Revised Statutes has been repealed.

The demurrer and the motion to quash were sustained by the District Court.

The District Attorney prosecutes this appeal from the ruling.

The act in question contains no reference to the section in question of the Revised Statutes.

It defines the offence as it is defined in the section.

Additional punishment may be imposed under the new law, but it does not provide a new and different punishment.

Our conclusion on this point would be different if the punishment under the new law were entirely different from what it is under the old law, for, in the same case, the two laws would be absolutely irreconcilable and the latter would repeal the former by implication.

Mr. Sutherland on Statutory Construction says: “Where, however, the new statute contains no reference for repeal or otherwise to existing statutes, and defines an offence made punishable by a prior law, and imposes a new punishment, it will not repeal such prior laws as to existing cases; for as the new law will operate prospectively, there is as to offences already committed no conflict. The prior law will operate as to all offences committed up to the time that the new law goes into effect, and the trial may be had and judgment pronounced afterward.” Par. 143.

“ The question ever is: Did the Legislature intend to repeal the former law, or was the new law intended to be merely cumulative?” Sutherland —.

By making it possible to inflict greater punishment of a similar character, under the last law, the Legislature has not made manifest an intention to repeal the old law and to issue a “legislative pardon” to those under indictment at the time.

A repeal will not be implied unless the last statute contained provisions contrary to or irreconcilable with those of the original law.

Again, if the statute on the same subject can be reconciled without destroying the obvious intent of the law-making authority, there will be no repeal.

The latter act adds a number of years to the term of service. A sentence can not be imposed under the original law in excess of the penalty provided in the prior statute. A sentence within the penalty of the original act may be imposed without in the least conflicting with the last statute. A punishment of two years or less is the same punishment under the first law for a past offence.

The repealing clause of the last act repeals prior inconsistent laws, but not all laws on the same subject matter. We must endeavor to construe these acts as to, if possible, reconcile the two acts.

Having this in view, we do not think we should hold that the prior law is repealed, unless it is manifestly inconsistent, and it is impos.sible to reconcile the two.

The implication of repeal must be a necessary one. Ludlow Heirs vs. Johnston, 3 Ohio, 553.

From the last cited case we quote: No court will, if it can be consistently avoided, determine that a statute is repealed by implication.”

The two statutes here are affirmative statutes. The latter denounces offences committed since it was promulgated; the former is in force as to offences committed prior to the latter act.

In other words, in the nature of things the last law becomes effective from and after its passage.

A similar question was decided by the Supreme Court of Alabama in Turner vs. The State, and in Miles vs. The State, both reported in the 40th Alabama.

In the last cited case the court cites Commonwealth vs. Pegram, 1 Leigh, 569; Allen vs. Commonwealth, 2 Leigh, 727; Pitman vs. Commonwealth, and Wright vs. Laine, 2 Rob. Va. Rep. 600, as sustaining the conclusion of the court, that no repeal was effected.

As in the last Alabama case, in the case before us, the use of the equivalent words to those in the Alabama law (“ all laws or parts of laws in conflict herewith” are repealed, instead of all laws in the same subject matter), perform the office of a saving clause.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, reversed and avoided; further, that the case be reinstated on the docket of the court and the trial proceeded with under the indictment as required by law.