text:
    No. 10,635.
    Mrs. W. W. Carre vs. City of New Orleans.
    l. A judgment which is contingently affirmed is one conditionally affirmed; one that is not made definitive, but the finality of which is made to depend upon a condition which may or may not happen.
    2. When a cause, the judgment in which is contingently affirmed, is remanded to the court of first instance, the party in whose favor this qualified affirmance exists, is bound to fulfil the condition that is thus imposed, and make it clear that he is entitled to the absolute affirmance of same.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      W. S. Benedict for Plaintiff and Appellant.

      W. B. Sommerville, Assistant City Attorney, and Carleton Hunt, City Attorney, for Defendant and Appellee.
   The opinion of the court was delivered by

Watkins, J.

This is the second appearance of this case. When last before us (41 An. 996) it was fully examined, and all the issues therein presented were decided except one, and that is “the amount of capital and the value of machinery and property of plaintiff, as was employed in 1882 in the manufacture of sashes, doors and blinds.” It is specially excepted in the decree of the court, and the cause was remanded for the purpose of enabling the court a qua to determine the amount, on the administration of proof. The decree in terms reversed the judgment that was appealed from, in “ so far as it perpetuates the injunction issued to prevent the sale of such of plaintiff’s property as is employed in the manufacture of cabins and planks.” It was “ contingently affirmed in other respects;” i. e., in respect to “ the amount of capital and the value of machinery and property (that) was employed in 1882 in the manufacture of sashes, doors and blinds.” This amount being ascertained, the District Judge was instructed “ to exempt the same from taxes of 1882.”

In other words, the court in the case settled the principles of law that were involved — i. e., that the property assessed and advertised for sale was and is a manufactory of articles of wood, in so far as sashes, doors and blinds are concerned, and that same are therefore exempt from taxation under Article 207 of the Constitution; but that, in respect to cabins and planks, it was not such a manufactory, and they were not exempt — and contingently affirmed said judgment, leaving a question open in respect to the value of the property thus employed in 1882.

•This is the question presented in this appeal. On the trial the court a qua rejected the plaintiff’s demands in toto, exempted no> part of her property, and dissolved her injunction at her cost.

An examination the record discloses that there were several witnesses interrogated, and who testified as to the nature of the different businesses carried on by the plaintiff, and the amount and value of the capital and property she employed in her factory in 1882. ' One of the witnesses, who appears to be best informed in regard to the matter, states that “he would estimate the value of the machinery employed in manufacture at $6000. * * * They manufacture doors and blinds to the extent of $4000 or $5000 per annum. Also manufacture various other articles of wood nece’ssary and ready for use; tongued and grooved flooring, ceilings, weatherboards, mouldings, wainscotting, corrugated ceiling, feather-edged boards, and all other articles of wood. * * * That he makes “Garre cabins” for the firm, and they require doors, blinds, etc. * * * That the cabins are prepared, manufactured, ready to be put up, with doors, blinds and sashes — all prepared to be nailed together.”

This witness gives the most accurate and intelligent idea of the business in which the plaintiff is engaged that the record contains; but it unfortunately is not restricted to, or fairly explanatory of the matter at issue, viz: “The amount of capital and the value of machinery and property as was employed in 1882 in the manufacture of sashes, doors and blinds.” It is quite true that the testimony does show that “the value of the machinery employed in manufacture’ ’ in 1882 was §6000; but it is far from showing that this machinery was solely engaged in the manufacture of sashes, doors and blinds. It is quite true that the testimony shows that plaintiff manufactures “doors and blinds to the extent of §4000 or §5000 per annum, but it fails to show “ the amount of capital and the value of machiiiery ” thus employed.

It was the imperative duty of the plaintiff to have furnished proof that would make her right to the exemption claimed, certain. This she has not done. “Doubt is fatal.” Exemptions from taxation are to be strictly construed. The3^ are strictissime juris.

There is, however, an additional fact worthy of consideration, and that is that the total value of all plaintiff’s property as assessed, is ■§6300. The assessment does not specify the machinery employed in manufacture, as being part of the property assessed. Nothing but real estate is mentioned. But conceding for the argument, that it includes the machinery as immovable by destination, and plaintiff’s case is not improved. For th'e proof shows that her properties in 1882 were worth about §17,000, and consequently the assessment was §10.700 under its valuation. There is nothing in the record to show why the assessment was so small, in comparison with the value of the property. It may be that the assessor took plaintiff’s alleged exemptions into consideration, and deducted same from the aggregate valuation. But whether this is, or not the case, it is manifest that plaintiff is exonerated from a larger amount of the burdens of taxation, than the exemption she urges would entitle her to.

The District Judge appears to have entertained this view, and we do not think there is anything in the record that justifies the appellant’s complaint.

Judgment affirmed.


source: Caselaw Access Project

author: McEnery, J. Fenner, J.

license: Public Domain

text:
    No. 10,525.
    Edward C. Palmer vs. Board of Assessors et als. And Edward C. Palmer vs. Board of Assessors et als. Consolidated.
    Where tile object of the suit is to cancel tax inscriptions for a number of years, and the plaintiff summarizes ail the assessments, and asks the cancellation for grounds common to all, this is not a cumulation of separate and distinct demands for the purposes of jurisdiction. When the assessments for said years show an amount over $2000, the Supreme Court has jurisdiction.
    IVhere the plaintiff makes the State a defendant in such a proceeding, and asks the cancellation of the inscriptions for taxes due the State, for the same reason as against the city, the State was properly made a party; and if the taxes of city and State amount to over $2000, this court has jurisdiction.
    Act 7 of 1875, E. K., had reference to sales for delinquent taxes made after its passage; and did not affect sales of property which had been adjudicated to the State prior to its passage.
    Tile plea of payment of taxes admits the validity of the taxes and of the assessments based thereon; and the fact of payment indicates knowledge and ratification of assessments, which bars subsequent question as to their validity.
    Assessors are not hound to look beyond recorded titles to property.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Singleton, Browne & Ghoate for Plaintiff and Appellee:
    1. Plaintiff lias been the recorded owner and undisturbed possessor of the property assessed since December 24, 1806. Pages--of Brief, also It., p. 5; Tr. 10,114, pp. 35, 45, 46, 90.
    2. The forfeiture to the State, Eebruary 11, 1875, was illegal, because the tax had been tendered and it liad been agreed that the sale should not take place; and it can have no effect because not confirmed by the Auditor. Seepages — — of Brief, also R., pp. 13,14; Tr. 10,114, pp. 39, 40 to 43, 108; Act 47 of 1873, Sec. 9; Act 105 of 1875, Secs. 1 and 3.
    3. The sale, by the State, of October 8, 1875, to Eishcl was null to the knowledge of the State, because it was made by her after the tax had been tendered; the previous forfeiture had not been confirmed; the law did not authorize it, and it was made in violation of a prohibitory law. See pages--of Brief, also Act 47 of 1873, Sec. 9; Act 105 of 1875, Secs. 1 and 3; Act No. 7, E. S., of 1875 ; 30 An. 871; 32 An. 228; 34 An. 706; 37 An. 358; C. O. 2453 ; 97 O. S. 105; 16 An. 280; R., p. 19; Tr. 10,114, pp. 39 to 43.
    4. Plaintiff is not estopped from attacking Eishel’s alleged title. See pages--of Brief, also Bigelow on Estoppel, 289, 292, 415; 14 Me. 352; 45 Me. 461; 5 Wall. 268; Co. Lit. 52 a.; 4 Greonleaf (Me.) 229; 14 Pick. 482.
    5 The recordation of .the quit claim deed from Eishel not material. Seepages — — of Brief; Act 43 of 1871, Sec. 23; Act96 of 1877, See. 12; R. S. 227, 228 ; 30 An. 295, 1272.
    6. Kales of November 22, 1883, and .lunc 4, 1885, have no effect in view of paymen of taxes and decisions in suits 14,918,14,947 (10,114, Supreme Couj|t).

      7. Act 108 of 1888 was passed after plaintiff’s suit was filed, and can not affect liis rights or his suit. Constitution, Arts. 11, 29, 155, 203. It is unconstitutional, because it violates Article 46. See pages--of Brief.
    8. The laws on which the plea of prescription is based do not apply to the case, and can not affect it. See pages--ol Brief; Act 105 of 1874; Act 96 of 1812; Act • 98 of 1886; Act 85 of 1888; 32 An. 912; 34 An. 705.
    9. The assessments in question are null and void. Sec page — of Brief; 30 An. 176, 293, 871; 32 An. 912, 924; 35 An. 952,1086 ; 34 An. 107, 407 ; 32 An. 520; 28 An. 537; 19 An. 185.
    10.The State and city taxes from 1870 to 1883 have been paid. 11., pp. 6,11,12, IS, 14,16, 23; Tr. 10,114, pp. 28, 30, 48, 49, 52 to 56, 58, 59, 60, 61, 78, 109,110,117.

      W. B. Sommerville, Assistant City Attorney, and Carleton Hunt, City Attorney, for Defendants and Appellants:
    1. A tax sale made to the State on I ebruary 11,1875, under Act 47 of 1873, was not affected by Act 7 of 1875, adopted on May S, 1875.
    2. Act 7 of 1875, IS. Sj., has reference to the seizures and sales of properties of tax delinquents after its passage, and did not refer to sales of property which had been already adjudicated to tlio State.
    3. Act 7 of 1875 has no effect upon the provisions of Act 105 of 1874; they are upon different subjects.
    4. A plea of payment of the' taxes admits the validity of the assessments and claims for taxes. It is in the nature of an affirmatory act and ratification. Bane vs. March, 33 An. 554; Carter, Congreve et al. vs. City, 33 An. 816; Reed vs. His Creditors, 39 An. 115; Factors and Traders Insurance Company vs. Bevi, 41 An. —.
    5. An assessment in the name of him whose title stands recorded on the public records as owner is a valid assessment.
    6. The receiving of a quit claim deed by the original tax debtor from the subsequent purchaser is an admission and ratification of the title of that purchaser.
    7. An assessment correctly made is full foundation for the tax and for subsequent proceedings in enforcement of the payment thereof.

      Wynne Rogers, Attorney for Tax Collector, and Walter H. Rogers, Attorney General, on the same side.
   On Motion to Dismiss.

The opinion of the court was delivered by

McEnery, J.

The plaintiff brought suit against the Board of Assessors, the Treasurer of the City of New Orleans and the State Tax Collector, for the purpose of having the assessments against his property situated in the city of New Orleans, from 1870 to 1888, both inclusive, enrolled and canceled, for both city and State taxes.

Subsequently, on the 22d September, 1889, he enjoined the State Tax' Collector ahd the Oity Treasurer from proceeding to sell the property for taxes alleged to be due for the years 1880 to 1883, inclusive, on the ground that they were assessed in the name of another party. These suits were consolidated and tried together. There was judgment for the plaintiff, from which the city and State appealed. .

The plaintiff has filed a motion to dismiss the appeal on the ground that the record does not affirmatively show that the amount in dispute is within the jurisdiction of this court.

The amount of the taxes due the city and State do not appear in the pleadings. But in plaintiff’s brief it is stated “that after a careful inspection of the record we have only been able to find the taxes claimed by the State from 1880 to 1883, amounting to $355.67, and those claimed by the city from 1877 to 1884, and from 1886 to 1887, amounting to $1947.60.” This appears in the record, and is a matter of proof offered by the plaintiff. But if there were any doubt as to the amount of taxes involved due the city, it is dissipated by the affidavit filed in this court by the Oity Treasurer, showing the amount of taxes due the city alone to be the sum of $2500.40.

This is sufficient to vest this court with jurisdiction. State ex rel. Daboval vs. Police Jury, 39 An. 739.

It is, however, contended by plaintiff that the taxes claimed by the city and State for cash assessment or both together do not exceed $2000, and that the taxes claimed on all the assessments should not be consolidated for the purpose of giving jurisdiction.

There are no separate demands for the cancellation of distinct assessments either for the city or State assessments. There is only one demand for the erasure and cancellation of all .assessments, State and city, which had been inscribed and operated as a mortgage or privilege on his property. The prayer of plaintiff’s petition is “that there be judgment in favor of petitioner ordering the cancellation of the assessments of his property as described herein, * * * and ordering the cancellation of all tax inscriptions for State and city taxes from 1870 to 1888, both inclusive, standing of record and uncanceled in the mortgage office of this parish and on the rolls and books in possession of defendant.”

The grounds for the cancellation of State and city taxes are identical, and they were made defendants and sued together as having a common interest. There was one cause of action against both. The object of the suit was to compel defendants to cancel certain tax ineriptions against the property of plaintiff. These inscriptions complained of amount to more than $2000. This is the amount in dispute, and this court, therefore, has jurisdiction. Breaux vs. Recorder of Mortgages, 36 An. 742; Pease vs. Police Jury, 34 An. 137; Favrot vs. City of Baton Rouge, 38 An. 280; Reed vs. Creditors, 89 An. 116.

The motion to dismiss is denied.

On thu Merits.

The opinion of the court was delivered by

Fenner, J.

Two cases of the same title were consolidated, tried together and disposed of in a single judgment.

The plaintiff alleges that he is owner of certain property by title dating from 1866; that, from the year 1875 to the year 1888, said property has been assessed in the names of Louis Fishel and of Joseph Holz, who were not owners thereof, and that said assessments are absolute nullities; that the State and city taxes due by said property from 1870 to 1883, both inclusive, have been paid by plain tiff, but that, notwithstanding said payment, the said taxes or a large part of them stand of record in the mortgage office, and on the books of the State and city, operating a cloud on his title.

The State Tax Collector and City Treasurer having advertised the property for sale for the State taxes of 1880, 1881, 1882 and 1888, and for the city taxes of 1886 and j.887, plaintiff applied for an injunction restraining the same. He prayed for perpetuation of the injunction and for judgment decreeing the nullitjr of the assessments attacked and the cancellations of the inscriptions.

It appears that plaintiff became delinquent for the taxes of 1873, and the Tax Collector advertised the property for sale in January, 1875. Plaintiff called upon him and tendered him a check for the amount of the tax, which the collector refused to receive, claiming additional costs and penalties. Plaintiff then obtained a letter from the Attorney General directing the Tax Collector to suspend the sale, which plaintiff says the latter agreed to do. Nevertheless, through oversight, or for other reason, he permitted the sale to proceed, and on February 11, 1875, the property was adjudicated to the State, und.r Act 47 of 1873. Subsequently, on October 8, 1875, the the State sold the same to Louis Fishel under Act 105 of 1874 Under this last act six months were allowed to the former owner to redeem, ■ at the expiration of which time without redemption, the Auditor was to execute a deed with full and complete title.

The Tax Collector’s deed was duly recorded, but, before the expiration of the delay for redemption, plaintiff brought suit to enjoin the Auditor and Fishel from further proceedings. This suit was decided adversely to plaintiff, and his injunction was dissolved. •

In May, 1879, Palmer effecteda settlement with Fishel, by which, in consideration of $200, the latter renounced and abandoned his claim to the property, but this deed was never recorded.

After the record of the Tax Collector’s deed to Fishel, the property was thereafter assessed in the name of Fishel from 1876 to 1884.

Fishel having failed to pay the taxes of 1881, 1882 and 1888, the property was advertised therefor and adjudicated to the State in November, 1888. In December, 1888, plaintiff called at the State Tax Collector’s office and claimed that the back taxes had been paid; put, nevertheless, to avoid another sale of the property, he paid the collector the sum of $860, amount claimed by him.

He does not appear, however, to have obtained any receipt or certificate of redemption or other final tax settlement.

There also remained due taxes for 1876 and 1878, and under Act 82 of 1884 the property was advertised and adjudicated to Joseph Holz on June 4, 1885, and thereafter the property was assessed in his name.

Litigation then ensued between Palmer and Holz as to the validity of the latter’s tax title, and in December, 1887, final judgment was rendered decreeing the nullity of Holz’s title. Then followed the 'present suits. No question of title is involved in the case; that was finally settled by the compromise with Fishel and the judgment against Holz. But neither the State nor city was a party to the latter judgment or had notice express or ^implied of the unrecorded settlement between Palmer and Fishel. In the litigation between these two last named parties, to which the State was a party through its Auditor, the decision was in favor of Fishel’s title.

The grounds of the relief sought by Palmer are twofold: 1. That the assessments are null for the years from 1875 to 1888 because made in the names of Fishel and Holz, who were not owners. 2. 'That the taxes under said assessments for the years from 1875 to 18,83 have been duly paid by him.

The inconsistency between those two grounds is glaring. 'The plea ■of payment is universally held to be an admission that the debt had •once existed. Moreover, the act of payment indicates a recognition .and adoption of the mode of assessment, which is held to bar subsequent question thereof. Carter vs. City, 33 An. 816; Lane vs. March, Id., 554; Ins. Co. vs. Levi, 42 An. 432.

We are not prepared to hold, independently of this, that the ■assessments could have been treated .as nullities. The judge a quo held them to be so because the sale to Fishel was made in violation ■of Act 7, Ex. Sess. of 1875, which extended payment of delinquent taxes to December 1, 1875, and therefore impliedly prohibited sales for delinquent taxes between the passage of the act and the date fixed. But the judge failed to consider the fact that the sale to Fishel was not a sale for delinquent taxes within the meaning of the Act of 1875.

That sale for delinquent taxes had been made prior to the passage •of the act, and the property had been adjudicated to the State. The sale to Fishel was a sale of property belonging to the State, made under Act 105 of 1874, and we think it was not covered by the Act of 1875. In all the cases quoted by the judge a quo in which the nullity of sales, made in violation of the act, was pronounced by this •court, it will be seen that the sale had been made for the taxes during the prohibited period.

Plaintiff can not complain that, after the sale to Fishel, which was •duly recorded, the property was assessed in the name of Fishel. 'The State was the guarantor of that title, and the Assessors were bound to respect it. It was spread upon the public records as evidencing the existing title, and the Assessors were not bound to go behind it. ' Still less can plaintiff complain that the Auditor’s confirmatory deed was not passed, since he himself enjoined the Auditor from passing the same and placed the validity of Fishel’s title at issue in a suit which was finally decided against him.

When he compromised with Fishel and obtained his quit claim •deed, he might have set his title right by recording the same; but he neglected to do so, and failed to give any notice thereof to the Assessors. He has himself to blame if the Assessors continued the •assessment in the name of Fishel, who stood as the recorded owner.

The same principles apply to the assessments in the name of Hola after the sale to him for the taxes assessed in the name of Fishel.

Neither the State, the city nor the Assessors were parties to the litigation between Holz and plaintiff, and they are not bound thereby. Admitting that all persons were affected with notice of suits affecting title to immovable property, the Assessors were not bound to anticipate the decision of such cases and to change the assessment from the name o.f the apparent recorded owner to that of the adverse claimant.

On all grounds, of which, however, the plea of payment might have been sufficient, the attack upon the assessments of this property in the names of Fishel and Holz must fail.

In considering plaintiff’s plea of payment, we are struck by the looseness of his procedings and the insufficiency of his evidence. He-produces no tax receipts except that for the city tax of 1876, which no one contests. He does not even swear that he ever had such receipts and has lost them. He traces no payment into the hands-of the taxing authorities except the sum of $360 which he paid to the State Tax Collector in December, 1883. For that payment he took no tax receipts; and it does not seem to have been imputed to any particular taxes. He says he simply handed it to the Tax Collector’s, clerk in settlement for what'the clerk stated was due. Plaintiff is a business man and understands the irregularity of such proceedings. He is undoubtedly entitled to a credit for that amount on the taxes-due to the State on the property at that date, but we are not able to-decree the extinguishment, of any particular taxes.

His evidence as to the payment of city taxes is entirely insufficient,' except as to the tax of 1876, which is not in dispute. He proves-that he gave checks to certain brokers to pay taxes; but there is not a word of evidence to show that the brokers ever paid anything to the city. The records of the city show no such payment. The tax bills remain in the city’s hands. No tax receipts are produced. The brokers have not testified, and the plaintiff proves nothing except that he gave the checks to the brokers. Manifestly, such evidence-can not establish payment.

The only relief to which plaintiff is entitled is to have the sum of $360 applied as a partial payment on the taxes due to the State on the property in December, 1883.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now adjudged and decreed that the demands of plaintiff be rejected except so far as to decree that he is entitled to a credit of $360 on the taxes due on the property to the State in December, 1883; and that the injunction be dissolved, plaintiff to pay the costs of this appeal.


author: McEnery, J.

text:
    No. 10,591.
    Andrew Downey vs. Anthony Kenner and Michael Buckley.
    Whore movable property is sequestered and bonded by the defendant, the title to the property remains in the defendant until divested by due course o'f law. Therefore, where the plaintiff, who obtained judgment recognizing his lieu and privilege on the property, failed to issue execution on the same, it was the duty of the defendant, who became insolvent in the meantime, to put said property-on,his schedule.
    As a prerequisite to a suit on a sequestration bond against the sureties, the plaintiff must issue execution on liis judgment to be levied on the property sequestered, when, if not delivered on demand, lie will bo entitled to sue on the bond, or he-must prove that to issue execution would be useless, as the defendant had dis posed of the property.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Geo. L. Bright for Plaintiff and Appellant:
    1. When the principal dies or becomes a bankrupt, the law does not require the creditor to await the settlement of the insolvency bringing the suit.
    The court will not turn the creditor to the insolvency. C. 1’. 279,282; Cordon vs.Diggs, 9 An. 422; Alley vs. Hawthorn,! An. 126; Wogan vs. Thompson, 10 An. 284; Wells vs. Roaelii, 10 An. 505; Ilowyeat vs. Adams, II An. 78; Trimble vs. Brichta, 11 An. 271; 27 La. 468 ; 21 An. 284 ; 2 An. 428.
    2. Prima, facie the value of the property is the amount of tile bond. Carroll & Bovs. Hamilton, 30 An. 523; Mulligan vs. Yallee, 31 An. 377.
    Defendant and appellee unrepresented by counsel.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff brought suit against one P. S. Moran’,, claiming a lien and privilege on certain immovable property. A writ of sequestration issued, the property was seized and ivas bonded by the defendant Moran, the defendants in this suit being the sureties on the forthcoming bond.

The plaintiff Downey obtained judgment against the defendant Moran,, and his lien and privilege on the property sequestered was recognized. No execution issued on this judgment. The property remained in the possession ^f the defendant Moran until he went into insolvency, and surrendered the property to his creditors. This suit was brought to hold the sureties liable for the amount of the judgment of Downey vs. Moran.

The bond was given for the sum of $2250, the value of the property sequestered; and no judgment can be rendered against the sureties exceeding this amount. The bond in a sequestration proceeding can not be assimilated to an appeal bond. They are dissimilar in every respect, and are given for distinct and separate objects under separate articles of the Code of Practice. The bond given by the defendant Moran, with the defendants in this suit as his sureties, is conditioned that he shall not send the property out of the jurisdiction of the court; that he shall not make an improper use of it; that he will faithfully present it, after ■ definitive judgment, in case it should be decreed that he should restore it to the plaintiff. ,C. P. 280.

The plaintiff has never put the defendant in default by the issuing of an execution on his judgment; nor has he shown that the sequestered property was not in the possession of the defendant, when he should have issued the execution, and he was unable to deliver it, thus rendering the putting in default a useless proceeding.

The judgment only gave the plaintiff the right to have the property seized and sold to satisfy his judgment. Until this was done the title to the property remained in the defendant, and he was compelled to put it on his schedule in his insolvent proceeding. It passed from his possession, then, by an order of court, but was constructively in the possession of the creditors, through the syndic appointed at their instance and by the order of court.

The plaintiff could have followed the property in the insolvent proceeding. The property sold for about $400, much less than its value as fixed in the sequestration bond.

The condition of the bond has not been violated. The property had continuously remained in the jurisdiction of the court until disposed of by its order in another proceeding. During this time the plaintiff failed to put the defendant in default by the issuing of an execution. The plaintiff should have taken the necessary steps to procure the presentation and delivery of the property. He can not proceed immediately against the sureties without these requisite steps, unless he shows that the defendant has disposed of the property; and the putting in default would be a vain effort. Welsh vs. Barrow, 9 R. 535.

Judgment affirmed.


author: Breaux, J.

text:
    No. 10,636.
    Home Insurance Company vs. Board of Assessors.
    1. The assessment o£ shares for the purpose of taxation of the share holder is not subject to deduction of bonds exempt from taxation.
    2. The corporation in matters of taxation is distinct from the share holder. The statute expressly declares that it is not a tax on the capital of the corporation, but it is a tax on the shares. “ The actual shares shall be assessed to the share holders.” Act 85 of 1888.
    •3. Property exempt in taxing the corporation per se is not exempt in assessing the share holders; bonds exempt from taxation are not subject to taxation when the property of the corporation is taxed. The eventual interest of the •share holder in these bonds does not give him any right to exemption on the assessed value of his shares.
    APPEAL from the Civil District Court for the Parish of Orleans, Voorhies, J.

    - Singleton, Browne <fc Choate for Plaintiff and Appellant:
    Act No. 3 of I860, exempting consolidated bonds of the city of New Orleans “ from any and all taxation," is a special statute. It was not repealed by the present Constitution as inconsistent with Art. 207, which is the general law of exemptions, and prohibits other exemptions being made by the Legislature in the future. All laws not inconsistent were maintained in force by Art. 258.
    A special statute or particular law is not repealed by a general law unless so repugnant that both can not stand, and if not inconsistent, they must be construed as laws in pari materia. City of New Orleans vs. l'oydras Asylum. 33 An. 850; New Orleans Eomale Orphan Asylum vs. Houston, Tax Collector, 37 An-08; City of New Orleans vs. the Carondelet Canal and Navigation Company, 36 An. 306; C. C. 17; 7 L. 166; 17 L. 407; 9 R. 531; 1 N. S. 161; 19 L. 447; 10 M. 172; 1 An. 54; 2 An. 919; 9 An. 165; 12 An. 805; 13 An. 329, 387; 14 An. 621; 5 An. 121.

      Francis B. Lee, Assistant City Attorney, and Carleton Hunt, City Attorney, for Defendant and Appellee:

      f. Act. No. 8 of 1860, exempting consolidated bonds of the city of New Orleans from taxation, not being part of the contract between the municipality and the bon dholder, is not irrepealable, the holders of the bonds bave no rights that are protected by the Constitution of the United States, and the effect upon the said act of Articles 203 and 207 of the Constitution of 1879 was to repeal it.
    2. That if not repealed the said act confers no rights upon the holder of the said bonds that he did not have already from the mere fact of being such holder of such bond, tlie said bond having been, as was declared in the ease of ha Ponte vs. The Board of Assessors, 35 An. 653, always exempt from taxation as such, owing to its peculiar and intrinsic character, and not in anywise on account of the fact of the passage of the said act.
    3. That whether the exemption of the said bond from taxation is due to the said act or to its own inherent character, the Shreveport National Bank Case (41 An. 186) applies, and it is not exempt when it constitutes part of the capital stock of the corporation.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff sues to have the assessment of its share holders reduced; to this end it is alleged that the Board of Assessors have assessed, on the rolls of 1889, for the purpose of State and city taxation, the share holders of petitioner.

That the assessment is excessive and illegal for the reason that the Assessors have disregarded the provisions of Section 27 of Act No. 85 of the fimieral Assembly of 1888, which provides that the shares of all corporations shall be assessed to and in the names of the share holders, and that when so assessed the taxes thereon are required to' be paid by the corporation whose shares have been thus assessed.

In the second place, it is alleged that the Assessors have made no deduction for the property owned by petitioner and exempt from taxation, to-wit: consolidated Crossman bonds of the city of New Orleans worth, cash value, $167,000.

The first ground, that is, the alleged informality in not having assessed the shares in the name of the share holders, hut in the name of the corporation, has been formally abandoned.

The agreement of counsel with reference to the abandonment is of record.

On the trial of the case it was proven that the number of shares representing plaintiff’s capital stock is 3676. Their par value is $100' a share. Their market value is $91 a share.

The assessment was $334,516, from which was deducted value of real estate directly taxed, and the shares of the Mutual National Bank, valued at a thousand dollars, owned by plaintiff, elsewhere assessed, leaving the amount of §303,516 assessed to the share holders, on which the rate of assessment is §82.56 a share. It is -not alleged that the shares were assessed at more than their actual value. It is in evidence that at the time of the assessment, and several years previous, the plaintiff company was the owner of lid?,000 worth of city consolidated Crossman bonds, which the defendant, after formal demand, refused to deduct from the assessed value of the shares held by the stock holders.

The only question remaining for decision is as to whether these bonds should be deducted from the total owned by the share holders as claimed bj' the plaintiff.

The exemption claimed has been twice denied by this court.

United States bonds and State bonds, in which the capital of a corporation is invested, are not deductible from the assessment of the shares. Bank of Shreveport vs. Board of Assessment, 41 An. 185; Board of Liquidation of City Debts vs. Thoman, Comptroller, 42 An. —.

The statement of the case establishes its similarity to those just quoted. The bonds in the quoted cases were United States and State bonds. In the case under consideration they are New Orleans City bonds. The latter are not more exempt than the former. They are all exempt from taxation, and the assessing officer can not directly list and assess them for the purpose, but they can not, because of their exemption from taxation, be deducted from the total of the shares of the share holders.

These bonds are more particularly the property of the corporation, and the share of a stock holder can not always be assimilated to the capital stock of the corporation. They are carried to a separate account, subject to different rules, and are not always similar. They are the individual interest of the stock holder, an interest which accompanies the person of the owner, giving him the right to a proportional part of the dividends when declared, and to a proportional part of the effects of the corporation when dissolved.

The capital stock is more especially the property of the corporation.

When the assessment of the property is made, that which is exempted from taxation should not be assessed.

It is different with the share holder; his interest is not deductible from the total value of his shares.

The tax is one on shares. The statute expressly declares:

“ That no assessment shall hereafter be made under.that name as the capital stock of * * any corporation, etc., when capital stock is represented by shares; but the actual shares shall be assessed to the stock holders.” Act 85 of 1888.

The value of shares is due to different contributing agencies; as for instance the stock subscribed, the ability of the management, the credit, etc.

The share holders can not be heard to eliminate any of these agencies by deducting the amount of exempt bonds from the value of the shares.

To be more explicit, without the exempted bond it is assumed for the purpose of taxation that the shares would have been as valuable; that these agencies would have operated to uphold their value; that if the corporation chooses to invest a part or all its assets in bondsj the value of its shares can not be considered lessened thereby.

The proposition that Act No. 3 of 1860 exempts consolidated bonds of the city of New Orleans from any and all taxation is correct. They are not affected by Article 207 of the Constitution.

The plaintiff contends that this case is not similar to the quoted cases; that in the latter it was held that the words “all exempt property” contained in Act 98 of 1886, Section 28, did not exempt bonds of this State and the United States, because the exemption claimed was not made by the Constitution, and the Legislature had no power to make it after the adoption of the Constitution of 1879.

After a careful reading of these decisions, we are unable to reach counsel’s conclusions in stating that the Shreveport Bank case does not militate against plaintiff’s position with reference to exemption.

It is decided that, in assessing, it is of no importance whether the capital was or was not invested in United 'States bonds and State bonds, although they are, as a rule, exempt from taxation.

It was not decided that these bonds are not exempted from taxation, but that they can not be deducted from the assessment of the shares of the stock holder. The same principle was affirmed in the case of the Board of Liquidation of City Debts vs. Thoman, Comptroller, 42 An. — .

Judgment affirmed.


author: Watkins, J. Fenner, J. McEnery, J.

text:
    No. 10,502.
    Succession of Armand Mercier. Opposition of City of New Orleans.
    1. AVlien carefully considered, reviewed and compared, all flic pertinent oxpressions of this court in reference to the constitutional restraint upon Tax Collectors in respect to suit, their substance is that judicial proceedings may be resorted to in aid of Tax Collectors when a.seizuro may not prove an.adequate or efficient mode of realizing revenue, or when by some act of the tax payer a seizure might prove inadequate.
    2. The right of the State and of the oity, answering a summons to show cause why funds under the control of a court should not bo distributed in a proposed manner, can not be denied. They have a right to claim taxes alleged to bo due them, or either of them, out of such funds.
    B. Taxes are enforced contributions from persons and property levied by the State by virtue of its sovereignty for the support of the government. The State demands and receives them from the subjects of taxation within its jurisdiction, that it may bo enabled to carry its mandates into effect and perform the functions of government; and the, citizen pays from his property the portion demanded, in order that he may by means thereof be secured in the enjoyment of the benefits of organized society.
    4. Taxes are imposed on tlio.person of the owner, notwithstanding property is resorted to, for the purpose of ascertaining the amount thereof.
    5. There is a personal obligation imposed upon the tax payer to pay taxes independently of the value of the property assessed.
    6. A judgment for city taxes is-not a money judgment, and does not possess the attributes of a judgment as defined in the Code of Practice; and it is not governed by the prescription of judgments defined in the Civil Code.

      1. Taxes assessed against two persons as the joint owners of property constitute only joint personal obligations against them for the payment of the taxes. There is no analogy between rules governing, or the precepts applicable to, a controversy with reference to the validity of proceedings under an unquestioned assessment, and one with regard to proceedings necessary to invalidate a questioned assessment.
    A PPEAL from the Oiyil District Court for the Parish of Orleans. n. Bightor, J.

      W. B. Sommer mile, Assistant Oity Attorney, Carleton Hunt, City Attorney, and Ernest Floranee for Opponent and Appellant:
    1. Taxes due tbe City of New Orleans are imprescriptible. Sue. of Stewart, 41 An. 127; 6 So. R. 587; Davidson vs. Lindop, 86 An. 765.
    2. Taxes are personal obligations. Cons, of 1879, Arts. 203 and 210; Cooley on Taxation, p. 1; Hilliard’s Law of Taxation, pp. 13 and 26; Camden vs. Allen, 26 N. J. 398; Oakland vs. AVhipple, 39 Cal. 113; Rundoll vs. Lakey, 40 N. A'. 517; Green vs. Craft, 28 Miss. 70; Desty on Taxation, Arol. 1, p. 7; Brent vs. City, 41 An. 1098; 6 So. R. 793; Sue. of Stewart, 41 An. 131; G So. R. 587; Sue. of I)upuy,33 An. 260; Reed vs. Creditors, 39 An. 120; Mullan vs. Creditors, 39 An. 397; 2 So. R. 45.

      H. Article 2L0 of the Constitution may prohibit the Tax Collector from instituting suits to enforce the collection of taxes; but an opposition to a tableau of distribution is not a suit instituted by the opposing Tax Collector. Sue. of Dupuy, 33 An. 260; Rood vs. Creditors, Hi) An. 120; 1 So. R. 784; Mullan, lb. 897; 2So.lt. 45; Hue. of Stewart, 41 An. 131; 6 Ho. R. 587; Brent vs. City, lb. 1098: 6 So. R. 793.
    4. “ A suit is a real, personal or mixed demand made before a competent judge, by which the parties pray to obtain their right and a decision of their dispute.” 0.R., Art. 96; Bouvier, ride “Suit.”
    “ Article 100. The plaintiff is ho who sues another for something which he says is due or belongs to him.

      u The defendant is one against whom this suit is brought.” C. P.

      Ti. The executor who files the tableau of distribution is plaintiff, and the opponent is defendant in the cause. Sue. of Romero, 28 An. 607; Hue. of Planclict, 29 An. 521; Hue. of Dongart, 80 An. 270.
    6. After summoning the City of Now Orleans into court the executor can not object to its appearing. Baker vs. Michinard, 17 An. 251; Pasteur et als. vs. Lewis & Lynd, 39 An. 11; Windon vs. McVeigh 93 U. H. 283.
    7. Where no objection is made by the executor to the offer and filing of evidence by opponent in support of the opposition filed by him, all objections to the form of proceeding and to the evidence are waived.

      Farrar, Jonas & Kruttschnitt for the Executor and Appellee:
    1. A claim for taxes due by joint owners of property can not be enforced in ioio against one only of the joint owners; nor can taxes due since the Constitution of 1879 be enforced against any property other than that assessed until all efforts to collect taxes out of the latter have been exhausted. V. & A. Meyer & Co. vs. Parker, Tax Collector, 41 An. 440.
    This disposes of all claims for taxes since and including the year 1880.
    2. Judgments in favor of the City of New Orleans are subject to the same prescription as judgments in favor of any other individual, to-wit: Prescription of ten years.
    3. Where a cause of action has boon reduced to judgment, the exception of res judicata lo a subsequent suit upon the same causo of action is as applicable to the demand of a municipal corporation as to that of any individual.
    4. Taxes upon real estate in the State of Louisiana have, since the Act No. 34 of the extra sessions of 1877, ceased to be a liability in personam, and arc purely claims in rem.

    Especially is this the case whore no excuse is shown for not pursuing real estate alleged to be burdened with the taxes.
    5. A judgment dismissing an opposition to a provisional account is res adjudicata as to a claim to a distributive share in the fund distributed and no further. West vs. His Creditors, 3 An. 532; West vs. His Creditors,! An. 450; Ifranklin vs. Warfield, 2La. 127; IVilliams vs. Nicholson, 5 An. 720.
   The opinion of the court was delivered by

Watkins, J.

The city, claiming to be a privileged creditor of the succession of the deceased for unpaid city taxes of the years 1871, 1873, 1874, 1875, 1876, 1877, 1878, 1879, 1880, 1881, 1882, 1883, 1884, 1895, 1886, 1887 and 1888, with interest, and, averring that she has not been placed upon the provisional account and tableau filed at all, opposes same, and demands the right to be placed thereon, and paid the amount and interest due her “in preference to all other creditors.” To her petition of opposition is appended a schedule of all the tax bills evidencing her claims.

The record shows, and the fact is, that after paying all debts due by the estate, there still remains in the hands of the executor a cash balance of 311,000 for distribution amongst the legatees and heirs of the deceased.

The demands of the opponent are resisted upon the following grounds, viz:

1. That all the claims of the city, for the various years in question were reduced to judgments, and those anterior in date to 1878 are prescribed.

2. That under the Constitution of 1879, and laws enacted in 1877 and subsequent years, taxes can be collected from the property assessed and no other. In other words, counsel for the executor contend that since the passage of Act 34 of the Extra Session of 1877, and the subsequent adoption of the Constitution of 1879, taxes are claims in rein, and not obligations in personam; and that, forasmuch as the funds for distribution are not proceeds of property assessed, the city has no claim against them.

3. That all taxes assessed in 1879 and subsequent years were assessed against A. Mercier and C. Darcantel, jointly, and in no event can the city claim more than one-half the amount alleged to be due.

4. That the city has no right of action for the collection of taxes by suit.

5. That the judgments for taxes constitute res adjudieata against the claims of the city for taxes.

There was a general judgment against the city, and she has appealed.

In this court the counsel for the executor has filed a plea of prescription to the city’s opposition of one, two, three, five and ten years, in addition to all other defences previously urged.

I.

The first proposition that must be considered is whether the city has any right of action or proceeding against the Mercier succession, for the collection of taxes. The ready answer is that an opposition to a succession account is not a suit or action, but an answer; and, as the counsel for the executor states in his brief, at page fiver “ Under well-established rules of practice in this State, it is unnecessary to file any pleadings in (answer to an) opposition to an executor’s account. The opposition is open to all exceptions and defences, to be urged ore tenus, with the same effect as if such objections were specially pleaded,” etc.

“A party can not be called into court, and then have his capacity to stand in judgment'questioned.” 17 An. 251, Baker vs. Michinard; 39 An. 5, Pasteur vs. Lewis; 93 U. S. 283, Windon vs. McVeigh.

On an opposition no moneyed judgment can be rendered against a succession; only one recognizing the claim as entitled to be paid in due course of administration. O. O. 985, 986, 987, 1004, 1Q05, 1006.

The contention is raised on the oft quoted provision of the 210th. article of the Constitution,that “at the expiration of the year in which they are due the collector shall, without suit, * * advertise for sale the property on which taxes are due,” etc; and on those of the 218th article, extending same to the city of New Orleans and other municipalities in the State.

In City of New Orleans vs. Wood & Bro., 34 An. 732, we had under consideration and interpreted those articles, and said:

“ The objects in view were-the prohibition of the forfeiture of the property for non-payment of taxes, and the substitution of summary expropriation without suit to enforce such payment,” etc.

In Alexander vs. Hyman, 35 An. 301, we said: “The manifest object was to prevent the oppressive accumulation of costs, which had attended the indiscriminate institution of suits for the collection of taxes, and to substitute thereto a less expensive and more expeditious method of realizing the public revenue.”

The only purpose which animated the framers of those constitutional precepts was to speed the collection of taxes, and reduce the. cost of tax proceedings and sales.

This and like interpretations have been given those articles in different, preceding and succeeding cases. In Succession of Dupuy, 33 An. 260, we said:

“It is clear that the summary mode provided by said constitutional and statutory provisions did not necessarily exclude every other mode for the collection of taxes.V

In Reed vs. Creditors, 39 An. 120, we recognized the right of a Tax Collector to set up a direct claim for the amount of taxes due by way of opposition to a syndic’s account in an insolvent’s estate,, a large portion of which had been ignored, and omitted from the tableau of distribution, as in this case.

In aid of “ the method of summary expropriation ” for the collec-tion of taxes, the Legislature has, from time to time, provided additional modes, which we have repeatedly sanctioned as being legal,, and therefore constitutional. Of such a statute we had occasion to. say in State vs. Meyer, 41 An. 436: “If it were true that the State has no mode of collecting her taxes except by seizure and sale of the property assessed, it is no less true that she has an absolute right to enforce their payment in that mode. If the exercise of this right is .illegally thwarted and obstructed by a delinquent tax debtor, she is. clearly entitled to some remedy for such a wrong, and it would be passing strange if her own courts, which she so zealously holds open, to every citizen for the vindication of all legal rights, should be. hermetically sealed against herself alone.”

This principle has been incidentally recognized in Mullen vs. His Creditors, 39 An. 397, in which we said “the opposition of the City of New Orleans for taxes was properly maintained;” in Succession of Stewart, 41 An. 131, and in Brent vs. City of New Orleans, 6 So. Rep. 793; 41 A. 1098.

On the whole, we take it to be perfectly clear and a proposition well established in our jurisprudence, that there is a method of collecting taxes, independent of seizure and sale, exceptional in character though it be. In the absence of any positive, constitutional or-statutory prohibition against proceedings otherwise than by seizure and sale, it would seem that some other should exist ex necessitate rei,, if seizure was impossible or insufficient as a means of collecting a tax..

That the City of New Orleans is opponent, and not the State, can make no difference, because in matters of taxation the State is supposed to have parted with and temporarily delegated to that corporation a portion of her sovereignty, as an efficient means of self government, and quoad such opposition the city may be taken for the State. The Constitution declares that “the taxing power may be exercised by the General Assembly for State purposes, and by parishes and municipal corporations, under authority granted to them by the General Assembly, for parish and municipal purposes.” Art. 202.

Therefore, what it is permissible for the State to do, the City of New Orleans may do likewise.

We have thought it proper to collect and bring into prominent review all of the pertinent expressions of the court in relation to the constitutional provisions under examination, so that their purport may be clearly apprehended and understood. The substance of them is that judicial proceedings may be resorted to in aid of tax collections when a seizure may not prove an adequate or efficient mode of realizing revenue; or where, by some act of the tax payer, a seizure might prove inadequate. In the instant case, we are of the opinion that the city has a right to proceed by opposition. The deceased appears to have paid no taxes to the city for nearly twenty years, and the counsel of his executor is here urging prescription' against the city’s demands. It may be that much of the city’s taxes are extinguished or the privileges and mortgages securing them lost by the long delay. She should be permitted to urge whatever personal demand she may have against the funds in the delinquent tax payer’s succession before they are distributed as proposed, as it may be that the property assessed will not be sufficient to meet the city’s demands.

II.

The second proposition for our consideration is that taxes are claims in rem, and not obligations in personam, and are therefore not payable out of the funds in the hands of the executor, which are not proceeds of property assessed.

Under the law of 1871 all licenses and taxes were declared to operate as a lien and privilege on all the movable and immovable property of the tax payer, and that they should continue in force ■“until same be fully paid.” Sec. 87, Act 42 of 1871.

Presumably all taxes assessed in pursuance of that law affected all property of the tax payer, whether it formed part of that assessed or not. Bnt counsel for the executor contends that Act 34 of the Extra Session of 1877 restricted the effect of tax liens and mortgages, to the property taxed or assessed, “and declared that thereafter such privileges or mortgages” shall not affect any other property generally, belonging to the delinquent “taxpayer;” that this law was both prospective and retrospective in effect, and applied to taxes then assessed, as well as those to be assessed thereafter; and that, as taxes could not be collected by seizure out of property not assessed, there ceased to be any obligation on the part of the tax payer personally to pay the taxes at all.

There is no question of the fact that the law cited, and other laws in pari materia, operated a great hardship on the people of this State, and produced some of the most trying evils of that time. And there is no question of the fact that the Legislature of 1877 sought, so far as it was in its power, to lift the burden of accumulated taxes from the shoulders of the inhabitants by the passage of the act in question; but the 110th article of the Constitution of 1868 forbade the General Assembly from enacting any “retroactive law;” and the one in question was necessarily ineffectual for the accomplishment of the purpose intended. It did operate on all taxes thereafter assessed, to-wit, those of 1878 and 1879.

The act declares that “'all liens and privileges for all taxes and. assessments on real property, for any purpose whatever, already recorded, or which may be hereafter recorded, shall bear exclusively and alone upon the property taxed or assessed; that the sheriff * * in executing any writ of seizure and sale on any judgment for tax or assessment rendered against a delinquent tax payer for tax on real estate, shall not seize any other property than that designated in the tax receipt or assessment roll, as chargeable and liable for the tax or assessment so due; that the Recorder of Mortgages shall designate on their books the property described in said judgment as chargeable and liable for the tax or assessment. The effect of this statute was much the 'same as the constitutional and statutory provisions that are discussed in the preceding paragraph. It will be observed that this statute deals exclusively with the effect of tax liens and privileges on real estate, their registry in the mortgage office, and certain restrictions placed on seizures in collecting same; but it does not deal with the taxes, nor in any way affect the tax payer’s responsibility for their payment. That remained, such. as it was, entirely unaffected. In our opinion, neither the act of \ 1877, the Constitution of 1879, nor laws subsequently enacted, develare, either in express terms or by fair implication, that taxes are not personal obligations of the tax payer. That collectors of taxes are required to proceed against the property assessed; that taxes assessed affect only property assessed, with a lien and privilege; that / proceeding by seizure and not by suit is indicated — do not exclude / the idea of personal liability. On the contrary, all the reasoning and authority reproduced in the preceding paragraphs clearly indicate the existenoe of personal responsibility on the part of the tax payer.

The Constitution declares that: “Taxation shall be equal and uniform throughout the territorial limits of the authority levying the tax, and all property shall be taxed in proportion to its value, to be ascertained as directed by law; * * * provided, that the tax payers shall have the right of testing the correctness of their assessments before the courts of justice.” Article 203.

It clearly indicates that, while it is the property that is taxed, it is the tax payer’s assessment.

All tax statutes and revenue laws provide in most stringent terms and ample provisions the mode for personal notices to, and demands ■ to be made of, the tax payer for the payment of the taxes in money. Such demands and notices are 'made conditions precedent to any proceedings for seizure and sale of the property assessed. If the tax payer did not owe the taxes at all, and could not be proceeded against personally for their payment, making demand for payment would be an idle ceremony, for no tax payer would be gracious enough to pay taxes he did not owe.

The revenue law of 1882 provides that all taxes, tax mortgages and tax privileges shall be “prescribed by five years from the date of filing the tax roll,” etc. Sec. 34, Act 96 of 1882.

The same provision occurs in the revenue law of 1886. Sec. 34, Act 98 of 1886.

If there was no personal obligation on the part of the tax payer why should the Legislature have provided a period of prescription, as applicable to the taxes themselves ? In whose favor could such prescription operate, if not that of the tax payer?

Judge Cooley defines taxes to be: “The enforced contributions from persons and property, levied by the State, by virtue of its sovereignty, for the support of the government and all public needs. The State demands and-receives them from the subjects of taxation within its jurisdiction, that it may be enabled to carry into effect its mandates and perform its functions; and the citizen pays from his property the portion demanded, in order that, by means thereof, he may be secured in the enjoyment of the benefits of organized society.” Cooley on Taxation, p. 1; Hilliard’s Law of Taxation, pp. 15, 26.

To a like effect are various State Supreme Court opinions of ability. Camden vs. Allen, 26 N. J. 398; Oakland vs. Whipple, 39 Cal. 115; Randall vs. Lakey, 40 N. Y. 517; Green vs. Craft, 28 Mississippi 70.

Mr. Desty defines a tax thus: “The taxis imposed on the person of the owner; for though property is resorted to for the purpose of ascertaining the amount of the tax, yet the individual and not the property pays the tax." 1 Desty on Taxation, p. V.

On account of the great importance of the question, which is made a controlling issue in this case, as well as the large amount involved, we have argued it as res nova, notwithstanding we have, in effect, twice decided it before. For in Succession of Stuart, 41 An. 131, we said: ‘ ‘ The taxes of 1880 and 1882 are still due the city, which remains an ordinary creditor for the amounts thereof and entitled to be paid accordingly.”

In Brent vs. City of New Orleans, 4 An. 1098, we held that “the Act of 1886 was never intended to release the purchaser at a confiscation sale from taaes assessed in his name against the property during his tenure. As he enjoys the fruits of the property, it is but just that he should bear its burdens.”

Our conclusion is that there is a personal obligation imposed on the tax payer to pay taxes independently of the value of the property assessed.

There can be no doubt that the State and city are creditors for taxes, which are secured on real estate assessed, and which is subject to seizure and sale, to enforce payment; but because they each have a lien thereon, are they precluded from ashing to be paid out of funds accruing to creditors and the heirs of the deceased? No. Why relegate them to seizure and sale of the property assessed, thus delaying collections and inflicting costs, when the taxes can be paid from money in the hands of the tax delinquent’s executor, and which is proposed for distribution, and out of which ordinary creditors, if such there were, could be paid. Is the holder of a note, secured by privilege or mortgage, and judicially recognized, bound first to proceed to seize and sell the property incumbered, before asserting his right to payment otherwise? Surely not. If he had an ordinary judgment, could he not, under ft. fa., seize money in bank, belonging to his debtor, and apply it to his claim? Undoubtedly. So, the rights of the city or the State are equally great, and, like those of private individuals, may be paid from the funds in the hands of the executor proposed for distribution.

III.

Before commencing our argument on the question of prescription, a few preliminary observations, in respect to pleas and evidence, will be necessary to a clear understanding of the issues involved.

(a) In the opposition of the city, claim is made for taxes for the years 1871 to and inclusive of 1889, except 1872. On these taxes judgments were rendered for those, only, of the years 1871, 1874, 1876, 1877, 1878, 1879 and 1882. As ten years’ prescription does not apply to taxes of 1878 and subsequent years, the plea of ten years only includes the taxes of the years 1871, 1874, 1876 and 1877. And as we held in Davidson vs. Lindop, 36 An. 765, and Reed vs. Creditors, 39 An. 115, and State ex rel. Jackson vs. Recorder, 34 An. 178, that the liens, privileges and mortgages securing the payment of taxes due the State and city prior to 1879 were practically imprescriptible ; and as there is no statute prior to the revenue laws of 1880 and 1882 which provides any prescription against taxes, the whole of the taxes, and tax liens and mortgages prior to 1882, pass out of the controversy, with the exception of such as are above mentioned as being covered by judgments prior to 1878. Inasmuch as since the enactment of the law of 1877, above referred to, no tax operates as a privilege or a mortgage on any other property than that assessed, there is no question of lien or privilege applicable to taxes of 1878 and subsequent years involved, because the funds for distribution are not proceeds of property taxed.

Thus we have the questions narrowed to (1) the ten years’ prescription as applicable to judgments for taxes antecedent to 1878, and (2) the five years’ prescription as applicable to taxes of 1882 and subsequent years. Inasmuch as the opposition of the city was filed on the 21st of August, 1888, even conceding the applicability of this prescription to city taxes, we have only to count five years prior to that date in order to ascertain what taxes are prescribed. But as we have ascertained that, under the law of 1882, taxes are prescribed by “five years from the date of filing the tax roll,” none of the taxes are prescribed, because there is no proof in the record to show at what date or dates the tax rolls of 1882, and previous years, were filed.

(b) In treating of the questions of prescription and res adjudicata, it must be borne in mind that this controversy is between a testamentary executor representing the legatees and heirs of the deceased and the city as the creditors of the deceased for the delinquent taxes of well nigli twenty years. No third person or mortgage creditor has any rights as opposed to those of the city, as in the case of Reed vs. Creditors. In all other respects this is a parallel case. It is quite true that in that case we held that certain judgments for city taxes formed res judicata as to the insolvent, yet the original assessments and tax claims were put in evidence, as appears to have been done in this case; and all were considered. In this case the tax claims were introduced on the part of the city without opposition by the executor’s counsel; and he in turn offered the tax judgments. Hence the whole may be considered together in ascertaining what they are, and. in determining what effect is to be given to them.

We do not regard such judgments as ordinary judgments for money. A tax judgment is but a means provided by revenue statutes for the collection of taxes. The mere existence of taxes presupposes an assessment, which has frequently been likened to a judgment. It would be a strange anomaly if the statute should require an assessment of city taxes to be further liquidated or authenticated by judgments. Such a decree does not possess any of the attributes of a judgment in the sense of the Code of Practice. Proceedings antecedent thereto do not present a eontestatio litis, because the exclusive evidence required is proof of an assessment. A tax judgment recorded in the mortgage office would not create a judicial mortgage on property not assessed for the tax. Such a judgment is not governed by the prescription defined in the Civil Code, because the judgments therein referred) to are such as are founded on pecuniary obligations Of'ordinary debtors in favor of creditors. Morris vs. Lalourie, 39 An. 49; Reed vs. Creditors, 39 An. 116; State vs. Viator, 37 An. 735.

(c) But it is satisfactorily shown that in 1880, and in subsequent years, taxes were assessed jointly to A. Mercier and C. Darcantel, and therefore the claim of the city must be restricted to one-half of the sums due for those years. This is conformable to our recent opinion in Rivers vs. Parker, Tax Collector, 42 An. —, and not inconsistent with the principles announced in Oteri vs. Parker, Tax Collector, 42 An. 374, and Insurance Co. vs. Levi, 42 An. 432. In one case the controversy was as to the validity of proceedings under an imqestioned assessment; and in the other it was as to the proceedings necessary to invalidate a questioned assessment.

The judgment appealed from should be so amended as to allow the city’s claim against the succession for all the taxes claimed, except one-half of those assessed in 1880 and subsequent years, but without any lien or privilege.

It is therefore ordered and decreed that the judgment be so amended as to award the City of New Orleans the full amount of her demands for taxes, except one-half the amounts assessed in 1880 and subsequent years, with interest according to law, but without lien, privilege or mortgage. That as thus amended said judgment be affirmed, with all costs to be taxed against the succession.

Mr. Justice Fenner dissents, and reserves his right to file a separate opinion.

Mr. Justice Breaux, not having been a member of the court when this case was argued and submitted, takes no part.

D issentinu Opinion.

The opinion of the court was delivered by

Fenner, J.

In the first opinion which this court rendered as to the effect of that clause of Art. 210 of the Constitution, which directs that taxes shall be collected “without suit,” we held that the payment of taxes, whether due to the State or to municipal corporations, can not be enforced by a suit, but only in the mode provided by the revenue laws of the State, passed in conformity to that article. Mayer vs. Heyman, 35 An. 301; Mayor vs. Williams, Id. 329.

From that ¿ate down to the rendition of the opinion in this case, this has been accepted as settled law in this State. McGuire vs. Voght, 36 An. 812; Reed vs. Creditors, 39 An. 120; Suc. of Stewart, 41 An. 127; State vs. Meyer, Id. 438.

In the last case just quoted we reaffirmed the doctrine most explicitly, and sustained the judicial proceeding authorized, on the ground that it was not a suit for taxes, nor a suit employed as a means of collecting taxes, but a mere invocation of judicial aid to compel the production of the property subject to taxes, not to condemn it to the payment of taxes, but simply to enable the Tax Collector to seize and sell it without suit in the manner required by the Constitution.

Two cases are quoted in which we considered and disposed of op- . positions for taxes filed in succession proceedings. Suc. of Dupuy, 33 An. 260; Reed vs. Creditors, 41 An. 120.

But in the first case no contest was made on this point, and it was treated as a consent proceeding, as we said in referring to it in the recent case of Succession of Girardey, 42 An.

And in the other case it appears that the syndic had himself procured a judgment canceling the tax inscriptions and referring the taxes to the proceeds, and we held that, under such state of facts, neither the syndic nor other creditors could contest the right of the Tax Collector to claim payment out of the.proceeds.

No such state of facts exists in this case. Theproperty subject to the taxes is extant, and the inscriptions of the same remain in force. Nothing hinders the collector from proceeding in the exclusive mode provided by the Constitution and law of the State. He simply chooses to proceed in a different manner and in one prohibited by the Constitution. An opposition, the object of which is to obtain a judgment for payment of a claim against a succession representative, is a suit. Its purpose and effect are to enforce the collection of taxes by suit, which the Constitution prohibits, and by a proceeding different from that directed in the revenue law, which we have held to be the only permissible mode.

If taxes due by a succession may be enforced by judicial proceedings taxes due by all persons may likewise be so enforced and the prohibition of the Constitution is nullified.

We have recently held that tax privileges could not be extinguished even by a succession sale of the property, and could not be-referred to the proceeds. Succession Giraredy, 42 An.

If they are not, and can not be, referred to the proceeds of property sold, what right has the Tax Collector to resort to such proceeds for payment?. And howmuch less right has he to claim payment, as he does in this case, out of proceeds of other property? We held, only the other day, that the Tax Collector could resort to no property other than that specifically taxed, until he first shows that by the act of tax debtor the seizure of this property has been rendered impossible. Meyer vs. Tax Collector, 41 An. 440.

No such showing is made or pretended here.

I shall not enter into discussion of the question whether or not there exists a personal liability for taxes. It is a purely abstract question. Personal obligations can only be enforced by suit, and since suits for taxes are prohibited by the Constitution, the question is robbed of practical significance, except in so far as it may arise in proceedings expressly provided by the revenue law, like those discussed in Meyer vs. Tax Collector, 41 An. 442, where we held that “when the tax debtor has placed it out of the power of the Tax Collector to collect his taxes in the mode required, he can not take advantage of his own wrong, and the Legislature may provide other means to enforce their payment.”

But we did not even then finally affirm the constitutionality of such provisions. We found it sufficient to hold that the Tax Collector could, under no circumstances, resort to other property until he had established, in the mode provided by the law, that the tax debtor had, by his own act, rendered the seizure of property taxed impossible.

Here the Tax Collector proceeds “by suit,” in a manner not directed or authorized by the revenue law, to collect taxes out of property not assessed for the same, without the slightest proof or even assertion that the property assessed is not open to seizure.

Such a proceeding involves both manifest and manifold violations of the organic law.

I therefore dissent.

On Application for Rehearing.

The opinion of the court was delivered by

McEnery, J.

The following propositions are presented for a rehearing in the case:

1. That the court erred in failing to sustain the pleas of prescription against all the claims of the city for taxes sued for in manner and form pleaded by petitioner.

The taxes assessed from 1871 to 1888, both inclusive, are imprescriptible. Sue. Stewart, 41 An. 128; Act 77 of 1877; Act 26 of 1886.

There is no question at issue in relation to any lien, privilege or mortgage resulting from the tax.

It is urged that the taxes that were put into judgments have prescribed by the ten years’ prescription applicable to judgments.

A judgment is the conclusion of law from facts found. It does not therefore change the nature of the obligation, which is the foundation of the judgment.

The judgment recognizes the debt, but it remains with all of its securities intact.

It can not therefore declare that prescriptible which by the terms of the statute is imprescriptible.

The taxes which were placed in the form of judgments were by the law creating them made- perpetual obligations, as no term of prescription was designated in the statute.

The judgments therefore could not have the effect of fixing a definite period for their existence.

The judgments as a means of enforcing the tax may have prescribed, but the obligation to pay the tax remains.

There is no attempt to enforce the tax by means of the judgment.

2. That under the Constitution and laws of this State the tax can only7 be collected from the property on which the tax was assessed; and that, if in certain events the tax can be collected from other property, it can not be collected without proof of the inadequacy of the property assessed to pay the tax, or proof that the same can not be subjected to the tax.

The reasons assigned in the opinion on this point raised by the defendant we think conclusive, and it is difficult to state any additional ones for the decree rendered.

Article 210 of the Constitution says “there shall be no forfeiture of property for the non-payment of taxes, State, levee district, parochial or municipal, but at the expiration of the year in which they are due the collector shall, without suit, and after giving notice 4o the delinquent in the manner to be provided by law, (which shall not be by publication except in case of unknown owner), advertise for sale the property on which the taxes are due in the manner provided for by judicial sales, and on the day of sale he shall sell such portion of the property as the debtor shall point out, and in case the debtor shall not point out sufficient property, the collector shall, at once and without further delay, sell the least quantity of property which any bidder will buy for the amount of taxes, interest and cost.”

This constitutional provision treats the assessment as a judgment, and is in accord with the decisions of this court in numerous cases before the adoption of the Constitution' of 1879. In Shannon vs. Lane, 38 An. 491, we said: “Proceedings for the 'collection and assessment of taxes are assimilated in many respects to judicial proceedings, for which they are regarded as substitutes. The assessment, the record of the delinquent lists and the Tax Collector’s sale are the respective equivalents of judgment, seizure and execution sale.”

The property is considered as already seized, and its assessment and sale are to be conducted in accordance with the laws for the sale of property under judicial process. As to the taxes, the State stands in the relation of a creditor who has obtained judgment against his-debtor and seized his property under the judgment. This is made more emphatic by the words in the article without suit. Suit under-the article is unnecessary because all of the taxed property of the tax debtor is considered as covered by the assessment, which has the force and effect of a judgment, and is, for the purposes of collection, considered as seized.

There is no constitutional provision which prohibits the State from pursuing any remedy to enforce the judgment which she has for taxes by virtue of the assessment, which an ordinary judgment creditor possesses.

Hence the State under the provisions of Section 54 of Act 55 of 1888 has the right to proceed by rule against the delinquent tax debtors to compel the production of property, which by its nature,, or because the owner on representation holds it under his possession or under his control in such a manner that the Tax Collector cannot lay hands upon it, and refuses on demand to deliver the same to. the Tax Collector. State vs. V. & A. Meyer & Co., 41 An. 437.

The property of this succession had been sold and the proceedSi presented for distribution.

In the language of Act 55 of 1888 the Tax Collector can not lay hands upon it.

It has been sold, and the Tax Collector has been thwarted in his efforts to collect the tax. If the property could be reached by court process and subjected to summary expropriation, there is the strongest reason for the right \pf the Tax Collector to go into court by invitation of the executor, and urge payment out of the proceeds of the sale of the taxed property.

It is not sacramental to the legal payment of the tax that it should be paid out of the proceeds of the specific property taxed. The payment of the taxes out of the general fund of the succession property by the executor would be a legal and valid payment, and would relieve all the succession property, movable and immovable, from the tax.

In the record there is an agreement of counsel to the effect that the property upon which the taxes were levied still exists in kind, and has not been sold and the proceeds distributed. We have, however, taken the account as we find it in the record. The executor has marshalled the assets as though the property had been sold, and proposes a distribution of cash. It was upon this basis that the creditors were cited, and in pursuance of this invitation to appear, the Tax Collector filed his opposition.

We can not distinguish between the pleadings as formally stated and the agreement of counsel as to a different state of facts, giving them an entirely different interpretation.

The petition for the homologation of the account presented by the executor stated “that he herewith files a second provisional account of his administration herein and tableau of- distribution together with two proces verbal sales of property in verification of collections set forth in said account and marked respectively ‘A’ and ‘B.’ ”

But it is immaterial whether the property of the succession exists in kind or not. The State, by virtue of the assessment having the force and effect of a judgment, can, like an ordinary judgment creditor, force the executor by opposition to the account to place her on the tableaux as a creditor to be paid in preference to all creditors. We emphasize the statement that the State, by virtue of the assessment operating as a judgment, can avail herself of every remedy usual in such cases to enforce the payment of taxes. She is only prohibited in the first instance of instituting suit for taxes, because it would be an unnecessary expense, as the assessment already operates as judgment in her favor.

3. That the court erred in not sustaining the claim of the executor, that the judgment for taxes constituted res adjudieata against the claim of the city for taxes; that the claim of the city, even if well founded, should at all events be dismissed, as in case of non-suit, with leave to reassert the same at the proper time and proper manner.

This proposition is cover’d by what has been said in Nos. 1 and 2.

The plea of res adjudieata would undoubtedly be good as against the city prosecuting another suit to judgment for the taxes. And also as to all matters pertaining to the matter in controversy in those suits.

But this question is not here presented.

The city is not engaged in prosecuting to a judgment the taxes claimed.

As we have said, the taxes are existing obligations, notwithstanding the judgment may have prescribed. The city only presented her tax bills, not the judgments, by way of opposition to the executor’s account for payment. It was not necessary to present them to the exe.cutor for acknowledgment, in failure of which suit was necessary to have them recognized. They are presumed to be correct, and the law declares that they are due and existing obligations. In effect they are acknowledged claims, and as such were presented for payment to the executor through an opposition to his account in the absence of their statement in the tableaux of distribution.

The opposition was not a suit for taxes in violation of Article 210 of the Constitution. This is made clear by the reasons stated in the opinion.

While, under the provisions of said article, the State can not sue and prosecute to judgment the claim for taxes, yet to determine their validity she can be brought into court by an injunction or other proceeding, initiated by the tax debtor against the Tax Collector. So, in an insolvent proceeding, or in the account filed by an administrator or executor, the State can be brought into court through proceedings initiated by the syndic or the administrator or executor.

This appearance by the State on the invitation of the tax payer, syndic, administrator or executor, is not a suit for taxes, but is an answer to their demands. Geddins vs. Mosby, 37 An. 419.

The authorities referred to in the opinion also clearly demonstrate this proposition.

As stated in the opinion, it makes no difference whether it is the State or the city attempting to collect the tax. The law is applicable to both alike. Cons., Art. 202.

Therefore where we have used the word State, it is applicable to the City of New Orleans.

Rehearing refused.

Eenner, J., adheres to his former dissenting opinion.


author: McENERY, J.

text:
    No. 10,631.
    Arthur Nivette vs. New Orleans and Lake Shore Railroad Company.
    Wliere a wagon is driven from a street railway track, and tlie occupant is thrown from it by the jolt of the wagon, incident only to the turning ¡out of the track the railroad company is not responsible in damages.
    The proof of the general bad condition of the street alone is not sufficient for the plaintiff to recover. The proof must be specific that the accident was caused by the defect in the street specially alleged and referred to in the petition as the immediate cause of the accident. .
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Branch K. Miller for Plaintiff and Appellee.

      Buck, Dinkelspiel & Mart for Defendant and Appellant.
   The opinion of the court was delivered by

McENERY, J.

Plaintiff sues for $20,000 damages for personal injuries sustained by him through the fault of defendant; the injuries consist of the loss, by amputation, of one joint of the thumb, two joints of the third finger of the left hand, and the mutilation of the hand in other respects; the amputations and other injuries were in consequence of, and caused by his being run over by a ear of defendant, at the corner of Esplanade and Levee streets; the damages consist of physical and mental pain, injury temporary and permanent to his hand; impairment of capacity in his vocation of cotton classer, marker and'inspector, etc.

The negligence charged against defendant is:

1. The bad condition of the street where plaintiff was injured, which caused him to fall from a wagon he was riding on, to the track, where he was run over.

2. That the driver of the car, by the exercise of ordinary care, which he failed to observe, could have avoided running over him.

3. That the driver at the time was exhausted from overwork and long hours of duty, and on this account could not perform his duty with proper diligence.

After the overruling of an exception of no cause of action, defendant joined issue by a general denial, followed by a special denial of any unusual hole or bad condition of the street where plaintiff fell, and an averment of contributory negligence; it was further specially denied that plaintiff could have any right of action against defendant, based upon its contract withthe city to keep the streets inrepair.

A trial by jury resulted in a verdict for plaintiff for $750.

The defendant appealed.

The petition alleges that the plaintiff was in a wagon driven by Jacob Rosch; that, when said wagon reached the corner of Esplanade street, the driver, in order to allow the passage of a car of the defendant company, coming from behind on the track on which the wagon was proceeding, and going in the same direction, caused said wagon to turnout of the track, and the driver drove in the direction of the Mississippi river. That, in so doing, without any fault of the driver or the plaintiff, one of the front wheels of the wagon fell into a large hole in the street, immediately next to the outer rail, causing a severe and sudden jolt of the wagon, which threw the plaintiff to the ground on or near the track on the river side. That, while the plaintiff lay in this position, unconscious from the fall, the car, for which the wagon had turned aside to allow it to pass, was carelessly driven over petitioner’s left hand.

The evidence fails to establish the allegations in plaintiff’s petition.

The street over which the wagon was driven is not shown to be in a bad condition. If it were so shown, this fact alone would not entitle the plaintiff to recover. The proof must be specific that the accident was caused by the defect in the street, specially referred to and alleged' in the petition as the. immediate cause of the accident. 'The plaintiff has failed to show that there was such a large hole in the street in which the wheel of the wagon entered, wliich caused the jolt of the wagon which threw the plaintiff from it.

Plaintiff’s witnesses show the largest dimension of the hole to be three inches wide and eighteen inches long. We are satisfied that this “hole” was only the usual separation at places of the track from the block pavement in the street, in some places probably unavoidable.

Jacob Rosch, the driver of the wagon from which plaintiff fell, says: “I heard a car behind me, and I could not look through the wagon in the back, and I turned around this way and looked and saw a car, and turned off. As the hind wheel was sliding out of the track, I happened to look around, and saw Nivette going out; and I tried to grab him, but I could nob hold him.” It was a wet day when the accident occurred.

The following questions were asked the driver of the wagon, a witness for plaintiff:

Q. Was that jolt any more severe than is ordinary on a square block pavement getting put of a street car track?

“A. It is on account of getting out of a smooth road like that. A wagon generally slides, especially on a wet day.

“ Q,. The way it goes off a rail it makes a jolt?

“ A. Yes; and of course if there is a hole there.

“ Q,. Was this hole of a character any more conspicuous than you find ordinarily in the streets?

“ A. No, sir; there are plenty of holes along the track.’.-’

The hole only being three inches wide, it is certain that the wheel of the wagon, driven directly from the track, would not go into it. The front wheels would be the first to enter it, if it were large enough. It is evident the driver of the wagon had turned from the track in the direction which he1 was going, placing the wagon nearly parallel to the track, and in doing so the hind wheel slided along the track as described by the driver. It was not a severe or unusual jolt, as the driver was undisturbed in his seat. ’

The plaintiff was carelessly sitting on a seat, without guards, cross-legged, rolling a cigarette. Had he been more careful the accident would not have occurred. Had the hole existed as alleged by plaintiff, and the wagon received only such a jolt as described by the driver, who was not affected by it, the plaintiff’s negligence would bar arécovery.

After the wagon turned out of the track and the plaintiff fell, the car was. so close to him that it was an impossibility for it to be stopped before it ran over a part of plaintiff’s body. The car driver was not negligent or careless. The evidence is conclusive that the car was stopped as soon as human power could do so.

We do not lightly disturb the verdict of juries. In this case the verdict is so manifestly erroneons that we do not hesitate to set it aside.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is further ordered that there be judgment for the defendant, dismissing plaintiff’s suit at his cost.


text:
    No. 10,654.
    Stella V. Burbank vs. Illinois Central Railroad Company.
    It is tlie duty oí a railroad company to furnish safe and easy ingress and egress-to and from their station houses and platforms to all persons who have business at said station houses. It is also its duty to keep said station houses and platforms in.a safe condition.
    But a person, who goes to the station house and on the platform, not for the purpose of any business, or to meet expected friends, or to see others depart, but as a mere spectator for his own pleasure and convenience, is there at his own risk and peril, and can not recover damages for personal injuries received in consequence of a defective platform. To entitle such a person to recover, he must show such gross and wanton negligence on the part of the company equivalent to intentional mischief.
    A PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      B. B. Forman and Charles Forman for Plaintiff and Appellee:
    1. It is the duty of railroad companies to furnish safe and easy ingress and egress to and from their platforms and station houses, and. to keep such platforms and station houses in a safe condition for use. *
    2. They are liable not only to passengers, but to persons who come to their stations on business; or are implicitly invited to come and use the platforms by the custom of the people of the place and the absence of warnings or prohibition by the officers of the company, and who are injured by means of a defective and dangerous platform. Penniston vs. R. R. Co., 34 An. 780; Turner vs. R. R. Co., 87 An. 648; Moses vs. R. R. Co., 39 An. 649; Sullivan vs. R. R. Co., 39 An., 800; Eield on Corporations, Secs. 539 and 540, and cases cited.

      3. When the name of a witness in the commission has the same sound as that of the witness, and the first name is the ordinary abbreviation of the full name, the deposition may be read in evidence.
    4. When the attending physician is called as a witness in a personal injury case, he may testify as a medical expert, although the usual preliminary questions as to his qualifications as an expert are not put to him.

      Girault Farrar for Defendant and Appellant:
    1. A railway station, where both passenger and freight business is done, is not a general public loafing place, but is intended only for the company’s business, and for those persons having some business relation with the company, as passengers and their friends, shippers or receivers. Rorer on Railroads, V.ol. l,pp. 474, 475; Gillis vs. Penn. R. R. Co., 59 Penn. St. 129; Balt. & Ohio R. R. Co. vs. Schwinding, 8 Am. and Kng. R. R. Oases 544; Leary vs. C. O. & I. R. R. Co., 3 Am. and ling. R. R. Cases 498; PitLs., Port Wayne & C. R. R. vs. Bingham, 29 Ohio St. 364; X-Iarris vs. Stevens, 31 Vermont, 90; Wood vs. Leadbitter, 13 M. andW. 838; Pierce on Railroads, pp. 275 , 276;. Whittaker’s Smith on Negligence, pp. G1 62, 63.
    2. The company may require its passengers to restrict their wanderings to that portion of the premises assigned to them, and to observe the rules and regulations in that regard. This power is inherent.
    3. A fortiori, it may expel from its station grounds persons who go there out of mere idle curiosity, not on business connected with the company. Rorer on Railroads, Vol. 1, pp. 474, 475.
    4. The company owes to the general outside public, bare licensees congregating at its depot, little more than the negative duty of protection from wanton injury. Mere defect in the premises of the railway station will not give a right of action to a bare licensee who is injured thereby. Authorities cited above.
   The opinion of the eonrt was delivered by

McEnery, J.

This is a suit for damages for personal injuries received by the plaintiff by falling through a hole in the platform of the defendant company at the town of Tangipahoa on the night of the 23d of September, 1889.

There was judgment for the plaintiff for the sum of $1500. The defendant company appealed.

The plaintiff, in company with two other ladies, visited the defendant’s depot for the purpose of being present on the arrival of the 8 o’clock passenger train from New Orleans.

In her petition the plaintiff alleges that she was expecting friends on the train from New Orleans who might desire to stop at the boarding house of which she was the proprietress. On this important fact, in her testimony she is silent.

The ladies who accompanied her, state that the plaintiff was expecting no particular visitor, or visitors, that evening; but she went to the train for the purpose of seeing if there were any persons on the train who might wish to go to her boarding house. It is not stated in the petition, nor is there any evidence to show, that the plaintiff was in the habit of going to the train to solicit custom for her boarding house. It is evident from the statement of the witnesses, and from her silence as to the particular reason which induced her to go to the depot, that she had no defined purpose in going there. Her presence on the platform and at the depot was not for the purpose of transacting any business with the company, to receive freight, welcome friends, or for any purpose for which the depot had been built.

She was at the depot, it is true, by a general license from the company, in the absence of any express prohibition. It would not be practical for a railroad company, in the immensity of its business, to designate particular individuals who should be permitted to enter its depot. But there was no express or implied invitation to the plaintiff to go to the depot and on the platform.

Had the plaintiff been on the platform for the purpose of receiving expected guests, or on any other business connected with the-railroad, to transact which the platform was built, she' would be entitled to recover damages for the injuries received from a defective platform, the result of the company's negligence. 34 An. 780; 37 An. 648; 39 An. 649-800; Wharton, Negligence, paragraphs 652, 653, 654.

From the evidence in the record we think the fact is clearly established that the plaintiff was on the platform for pleasure only, and not with the intention of transacting any business with the company, or for the purpose of receiving friends expected on the train.'

Her presence on the platform was at her own risk and peril.

Railroad platforms are not made for the use of the public; and if persons not invited and having no business with the company are injured in consequence of a defect in the platform, they have no redress. Wharton, Negligence, paragraph 822.

There was no inducement offered by the defendant to plaintiff which was equivalent to an invitation to go upon the platform. Mere permission, because it is impossible to refuse it, is not an inducement or an invitation to enter on the premises of another. The person entering on the premises of another under such circumstances goes at his own risk, and enjoys the license subject to its attendant perils. The law does not impose the duty upon the owner to keep his premises in a condition of such repair as to suit the convenience of those who go there solely for their own pleasure, and who are not invited or induced to go upon them.

The defendant company, under the facts in this case, could only be made liable if the uncovered platform through which the plaintiff fell was in its nature a trap. Wharton, Negligence, paragraph 821.

There must have been on the part of the company such gross and wanton negligence that it was equivalent to intentional mischief. Snyder vs. Railroad Co., 42 An. 302.

The station house offered ample accommodations for passengers and visitors on business. There was a waiting room for passengers, with all requisite appliances for egress and ingress. There was a graveled walk along the track, and between it and the depot, for passengers and visitors in Waiting. From thjs walk an inclined plane reached up to the platform.

There were platforms on the several sides of the building. The south side platform was used exclusively for freight. The flooring on this had been taken up for repairs. There was a lamp at the north side of the building which threw a light along the west platform intended for the use of passengers. This light did not reach the south platform, which was at the south end of the building, and at right angle to the west platform.

The plaintiff was sitting on the edge of the west platform. She jumped to the gravel walk, and went to the end of the platform at the south side, ascended the inclined plane, and fell through an opening in the south platform. The change of position by the plaintiff, it is alleged, was to get a better view of the inside of the coaches as the train approached. But it seems this was a needless change of position if the plaintiff really intended to see people coming from the train.' The gravel walk was specially designed for the purpose of going to or coming from the train. The part of the system of platforms through which plaintiff fell was dark; and this fact alone ought to have warned her of her danger. The absence of a light was at least a notice that no one was expected on that part of the platform. Being a freight platform, it was not to be expected that it would be used as a promenade.

In repairing this part of the platform around the depot, on the south, side, and leaving it unprotected, we are of the opinion that the opening was not in the nature of a trap, and the defendant company was not guilty of that degree of gross negligence that was equivalent to intentional mischief.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now ordered that the suit be dismissed at plaintiff’s costs.

Rehearing refused.