author: Miller, J.

text:
    No. 12,608.
    The State vs. J. C. Rushing.
    A legislative act constituting an offence and specifying tlie modes of its accomplishment does not violate Art. 29 of the Constitution requiring that the legislative act shall embrace but one object.
    The object of the legislative act creating the offence of attempting to extort money or property by threats, threatening letters, molesting, troubling or intruding on another with the intent to extort money or property, is expressed with sufficient certainty by the title “to punish attempts to extort money by threats, threatening letters, or other unlawful devices. Constitution, Art. 29; 6 An., p. 605; 11 An., p. ; Act JSTO. 63 of 18S4. 1?
    APPEAL from the Second Judicial District Court for the Parish of Webster. Watkins, J.

      M. J. Ounningliam, Attorney General, and A.-J. Murff, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      B. C. Brew for J. C. Rushing, Defendant, Appellant.
    Submitted on briefs November 6, 1897.
    Opinion handed down November 15, 1897.
   The opinion of the court was delivered by

Miller, J.

The defendant, sentenced for attempting to extort money by threats, takes this appeal.

The question raised by the motions to quash and in arrest of judgment is the constitutionality of the legislative act No. 63 of 1884,. under which the indictment was preferred. It is urged that the act violates Art. 29 of the Oonstitution, requiring the legislative act to' embrace but one object, and that to be embraced in its title.

The object of the statute is to define the offence of attempting to extort money by threats or other unlawful devices,'as the title expresses it. Our predecessors deemed an act of the same character,, and of nearly the same language, an instance of obscure legislation,, and held it to be unconstitutional because of the objection urged to this act. Act No. 64 of 1884; State vs. Heywood, 38 An. 689, The statute for consideration is one long section and does require very close examination to determine' its scope and purpose. We understand it to make it an offence to send or cause to be sent to another any letter, postal card or written or printed matter threatening to accuse him or her of crime, misdemeanor, fault, infirmity, etc., or to make known any such faults, misfortunes or failings, or to injure his or her good name or reputation, or to cause him to be subjected to any public scandal, or shall threaten to kill, wound or murder him or her, or subject him or her to any bodily harm with intent to extort money, property, or to procure the release of any benefit, advantage or immunity. The statute then makes it an offence to maliciously follow, pursue, or intrude upon another at his. home, residence, office, or any public place, with the intent already specified, to extort money, and the statute farther proceeds with greater amplitude of language than that used in the first part of the statute to define the offence of threats of wounding, killing, maiming or inflicting bodily harm on another, or molesting or troubling .him, or of accusing him of crime, misdemeanor or faults, or to make .known his faults, misfortunes or failings, or to injure or impair his •good name, or subject him to scandal, ridicule or unpleasant notoriety, with the same intent already stated, i. e., to extort money, property or procure the release of any right, advantage or immunity. The statute might be better constructed and it seems to contain repetitions. Substantially, however, it defines the offence of attempting to extort money by threats or other unlawful devices.

The object of the statute was to define and punish the attempt to extort money or property by threats, threatening letters or other modes. The detail in the statute is to indicate the modes of attempts at extortion. The statute creates no offence apart from the attempts to extort. We can appreciate the objection under Art. 29 of the Constitution to the inclusion of two distinct crimes in one statute. We have no such grouping of separate offences, but the statute dealing with attempts to extort and merely specifies the modes of the offence. We can not therefore hold the statute obnoxious to Art. 29 of the Constitution as embracing more than one object.

The title of the act is to provide for the punishment of attempting to extort money or property, or valuable thing by means of threatening letters, threats or other unlawful acts or devices. The body of the act dealing with the offence specified in the. title and the modes of, accomplishing the offence is, we think, fairly expressed in its title. The act directs attention to the offence and modes of its perpetration and makes express mention of two of the prominent methods of extorting money. It was not' essential to specify all the modes in the title. Our jurisprudence is that the constitutional rule .as to the title of an act must be understood in a reasonable sense. We think that under the title to this act there is a sufficient indication of the object of the statute. Municipality vs. Michoud, 6 An. 605; Succession of Lanzetti, 9 An. 329, and a number of later decisions on same line.

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


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 12,672.
    State ex rel. Absolom R. Mitchell, District Attorney, vs. S. D. Read, Judge.
    The Supreme Court, pending injunction suit in the District Court against officers of a parish in which attorneys specially employed by them have been recognized by the District Judge as in charge of the case, will not, on application of the District Attorney compel such judge to recognize him as the representative of the parish entitled to direct the defence.
    ON APPLICATION for Writs of Mandamus, Prohibition and Certi-orari.

      Pujo & Moss for Relator.

      J. D. Cline, Oity Attorney (Paul E. Sompayrac, of Counsel), for Respondent.
    Submitted on briefs November 22, 1897.
    Opinion handed down November 23, 1897.
   The opinion of the court was delivered by

Breaux, J.

This is a proceeding by the District Attorney of the-Twelfth Judicial District to compel the judge of the district to rec-. ognize him as the legal representative of the parish of Calcasieu in an injunction suit brought by the city of Late Charles against the police jury of Calcasieu parish and against A. L. Lyons, sheriff and ex-officio tax collector, to enjoin them from further proceedings in the collection of taxes assessed for the year 1897, on property, it is alleged, in the petition for an injunction, situate within the limits of Lake Charles.

The relator, in support of his petition for mandamus, certiorari and prohibition, avers: That Messrs. R. P. Williams and E. L. Wells, attorneys at law, were employed to represent the police jury and were directed to take charge of the defence. A disagreement had arisen between the District Attorney and the police jury; the former had interposed pleas in their character preliminary, which he, the District Attorney, contended would result in a dismissal of the suit, while the latter, the police jury, desired to have the case decided upon the merits, without regard to any pleas, save those appertaining to the merits proper.

The counsel specially employed (Williams and Wells) offered an answer for filing, to which relator (the District Attorney) objected on different stated grounds, which were overruled and an exception to the court’s action in overruling them was reserved. The answer was filed, and on motion of these attorneys (Wliliams and Wells) all exceptions and motions which had been previously presented by the District Attorney were by the court referred to the merits of relator.

The District Attorney’s position is that he is quite ready and willing to defend the parish; that without good reason his views in regard to the defence are not followed; that he to the knowledge of the police jury, did not object to the employment of associate counsel to assist him in the case, but that he can not, under the law, be debarred from conducting the defence as he may judge proper.

In our judgment the application is premature and can not be entercained in the proceedings before us.

The relator, we have noted, has reserved all of his rights. Should the case come before us on appeal the issues presented, if they are issues which can be passed upon in this case, will receive the attention due them. The case, it is alleged, is appealable. The relator is not without remedy in the premises. This court has repeatedly held that the writs here applied for, before' the proper time, where the party has another and specific remedy, should not be granted.

The judge of the District Court has jurisdiction. It is not our duty at this time to order him to set aside a ruling already made, even if erroneously made, in the course of the proceedings.

The complaint is not the complaint of any of the parties to the suit. The plaintiff chooses to prosecute its cause despite the disagreement of the District Attorney with the police jury.

The defendant, on the other hand, has sought tne services of other counsel. The District Attorney, whatever may be his right, can not interfere at this preliminary period in the history of the case. He will have to bide his time and present his claim on appeal, or in such other proceedings as it may be proper for him to institute.

These proceedings are not, in the nature of things, conducted contradictorily with all parties concerned, and until.they are before us in proper proceedings and have been heard, we are compelled under our jurisprudence to decline to grant relator’s application, which is ex parte at this time and a collateral issue brought into a pending suit, and can have no effect on issues not made up with the view of testing the right claimed by the District Attorney and not before us in such a manner as to enable us to determine whether it affects with nullity rulings already made or decisions to be rendered.

This court may command a judge to proceed to judgment. It has no power, however, to compel him to decide according to any other judgment than his own. His recognition (complained of by relator) and his rulings were matters of judgment with him.

The application is refused.


author: Milleb, J.

text:
    No. 12,577.
    State ex rel. Mouton et al. vs. S. D. Read, Judge ad Hoc.
    The amendatory act in its title referring to the title of the act amended, or to the section of the Revised Statutes the subject of amendment, but which sets forth in full the act or section as amended, does not violate, but complies with the constitutional requirement that legislative acts shall not be amended by reference only to their titles. Constitution. Art. 115 of 1879, Art. 30, R. S,, Secs. 1419 1421; Act No. 24 of 1877, No. 24 of 1894; 11 An. 54; 4 An. 297-; 10 An. 719.
    'The title of an act giving that of the act or the number of the section of the Revised Statutes proposed to be amended complies with the constitutional requirement that the object of the legislative act shall be expressed in its title. Const. 1868 (Art. 114 of 1879), Art. 29.
    The .provision for suits contesting the election of municipal officers may be included in the act containing similar provisions for such contesting election of State and parish officers; all the provisions relating to one subject; i. <?., suits to contest elections. Const., Art. 29.
    ‘The court again affirms that if the title of the legislative act expresses one of its subjects, it is valid for that subject, though others are contained in the body of the act, not expressed in its title, hence the act No. 24 of 1S94 in its title providing for contests of State, parish and municipal officers would be valid to confer jurisdiction of contests for municipal officers, even if in other respects the act could be deemed objectionable. Black’s Const. Law, p. 288; 14 An. 7.
    Suits contesting elections of municipal officers under the Act No. 24 of 1896 belong to that class of cases in which the jurisdictiongiven by the act is not dependent on the pecuniary amount involved. Const, Art. 11; 35 An. 637; 19 La. 340; 45 An. 681,378.
    ^~^N APPLICATION for Writs of Certiorari and Prohibition.

      Winston Overton^ Chas. D. Caffery, Other C. Mouton for Relator.
    Submitted at chambers on briefs July 29, 1897.
    Opinion handed down August 12, 1897.
   The opinion of the court was delivered by

Milleb, J.

The relators allege that they were candidates respectively for the office of mayor and couneilmen of the city of Lafayette and were duly elected at the election of 5th May last; that their election is contested by William Campbell and other candidates for the same offices to which they claim to have been elected; that said contest is now pending before the District Court for the parish of Lafayette; the relators deny the jurisdiction of that court to determine the contest, and, their exceptionshaving been overruled, this application has been made by them for the writs of certiorari and prohibition, to restrain any further proceedings in the lower court in the suit of the contestants.

The relators urge that the jurisdiction to determine the right to office claimed by virtue of any popular election is purely statutory, and that there is no law vesting the District Court with power to entertain the suit now pending contesting the election of municipal officers of the city of Lafayette.

Our courts at an early period determined that statutory authority was essential for the judicial cognizance of suits contesting the right to office based upon popular elections. State ex rel. Foute vs. Tappan, 11 An. 187; State ex rel. Foulhouse vs. Judge, 12 An. 514; State ex rel. Rousseau vs. Judge, 13 An. 89. The Revised Statutes, the law in force when these decisions were rendered, provided only for contests of election for the offices of clerk, sheriff, recorder, coroner and other parish offices. R. S., Secs. 1419, 1421. The Legislature, by Act No. 24 of 1877, re-enacted section 1419, changing the time within which the contesting petition was to be filed; provided also for the contests of State officers and made other changes. The legislative act, No. 24 of 1894, re-enacted the act of 1877 and enlarged the jurisdiction of the District Court for the district or parish in which the election was held, so as to embrace con7 tests for any parish, district, or municipal officer, claiming to be elected by the people. The suit now pending, the proceedings in which are sought to be restrained, is clearly embraced in this amend-atory act of 1894, and to grant the writ we must reach the conclusion the act is unconstitutional and that there is no remedy of contesting the election to municipal office in the country parishes.

In support of their contention the relators invoke Art. 115 of the Constitution of 1868, under which the act of 1877 was passed. The article provides that no law shall be revived or amended by reference to its title, but the revived or amended act shall be published at length. The object of the article is that no reference to the amended act shall be requisite to trace and ascertain the change by the amendatory legislation, but that the amendment itself shall show the whole law on the subject, and additional provisions not in the amended act, if orí the same subject, may be introduced in the amended act. Arnault vs. City of New Orleans, 11 An. 54; Walker vs. Caldwell, 4 An. 297; Kohn vs. Mayor, etc., of Carrollton, 10 An. 719. The Act No. 24 of 1877 purports to amend and re-enact Secs. 1419 and 1421 of the Revised Statutes and to authorize contests of the election of State officers, and the sections are published at length. The Act No. 24 of 1894 purports to amend the act of 1877 and to authorize the contests of municipal offices, and the act as amended is published at length, embracing the added provision as to contests of election of municipal offices.. In neither case is there the prohibited amendment merely by reference to the titles, but in both cases the act as amended is published at length We, therefore, find no repugnancy in the legislation of 1877 and 1894 to Art. 115 of the Constitution of 1888 or the corresponding Art. 30 of the present Constitution.

It is claimed too by the relators that the acts of 1877 and 1894 are violative of Art. 114 of the Constitution of 1868, and of Art. 29 of the present Constitution. The first article provided that the subject of every legislative act shall be 'expressed in its title; the last article includes this requirement and another that the act must embrace but one subject. The title of the act of 1877 refers to the sections of the Revised Statutes it proposes to amend, and expresses the further purpose to authorize contests of the election of State officers. The title of the act of 1894 is to amend and re-enact the act of 1877, and besides to authorize contests for municipal offices. It has long been settled that the constitutional requirement that the the title should express the subject of the act must be understood in a reasonable sense, and to exact more than an apt, however brief, expression in the title would defeat the purpose of the Constitution. Municipality No. Three vs. Michoud, 6 An. 605; Lafon vs. Dufrocq, 9 An. 350; Kathman vs. City, 11 An. 145. The title of the act of 1877 makes a reference to the sections of the Revised Statutes to be amended, and, in our opinion, no statement of those sections was requisite in the title of the amendatory act. The title expressly announced the other purpose of the amendment. The act of 1894 in its title makes explicit reference to the act of 1877 and discloses the other object to authorize the contests of elections of municipal offices. We think that the titles to both acts are sufficiently expressive of the objects of each. It is equally clear that when the title fully covers the subject of an act, to that extent it will hold good, though in the body of the act there may be provisions not covered by the title. William vs. Payson, 14 An. 7 Black. Const. Law, p. 288. The act of 1894, even in this view, would be valid to authorize the jurisdiction of contests of elections to municipal offices expressly mentioned in its title.

All the provisions in this act of 1894 relate to the subject of election contests. It can not be deemed reasonable that there should be the necessity for separate statutes providing for the contested elections of parish, district, State and municipal offices. There is grouped in the Revised Statutes, in one section, the provision for contests for sheriff, clerks, district attorneys and other parish elective offices. The later acts dealing with other elective offices, State and municipal, bring them within the scope of the jurisdiction of the courts to entertain contests for elective offices. The sections 1419 and 1421 of the Revised Statutes are taken from the act of 1855 Relative to elections,” acts of 1855, No. 419. As well might all contests for elective officers now provided for by this amendatory legislation have been arrayed under the title of the act of 1855. In our view the judicial contests of elective offices have that closeness of relation as to be deemed one subject for legislation, and hence the act of 1894 is not to be deemed to include distinct subjects in the sense of Art 30 of the Constitution.

It is claimed the right to hold municipal offices to which no salary is attached is not appreciable in money, and hence the District Court had no jurisdiction of the controversy. If we sustain this contention there is no remedy for those rightfully elected to municipal offices created for the administration of government exerted through the subordinate agencies created by the State. We have had in previous cases this question of the limitation of jurisdiction to controversies purely pecuniary in their character. Under the constitutional provision that the courts shall be open for the assertion of the rights of the citizen we are not able to reach the conclusion that the jurisdictional test of amount shall be so construed as to close the courts to all suitors asserting rights of an important character, though not susceptible of pecuniary estimate. Constitution, Art 11; State ex rel. Mayor vs. Judge, 35 An. 637; Rowley vs. Rowley, 19 La. 340; State ex rel. Custodian Notarial Records vs. Théard, 45 An. 681; Sheriff, etc., vs. President Police Jury et al., 46 An. 278.

In all respects we think the lower court has the jurisdiction of the controversy, and the application is denied.

Nicholls, O. J., absent.


text:
    No. 12,529.
    Mrs. K. L. Brigham et al. vs. C. Newton et al.
    The attorney holding relations besides toward his client, fairly implying he will charge himself with her business interests, can not acquire the client’s property to her prejudice, the purchase of the property by the attorney being the result of the advice he gives the client. Such purchase will enure to the client, subject to the obligation to reimburse the attorney his expenses incident to the purchase and management of the property. 1 Story’s Equity Jurisprudence, Secs. 310, 311, 312.
    PPEAL from the Fifth Judicial District Oourt for the parish of Ouachita. Barksdale, J., sitting for Potts, J., recused.

      Stubbs & Bussell for Plaintiff, Appellant.

      Hudson, Vaughan & Newton for Defendants, Appellees.
    Argued and submitted June 10, 1897.
    Opinion handed down June 28, 1897.
   The opinion of the court was delivered by

Miller, J.

This is an appeal by the plaintiffs from the judgment in favor of two of them for the property and revenues claimed of the defendant 0. Newton, the judgment of the lower courtdenying relief as to one and not according to the two other plaintiffs the full measure of their demand. On the part of defendant we have an answer to the appeal, asking that as to one of the plaintiffs, her relinquishment of title which the lower court did not maintain, be decreed binding on her, and that the amount of the credit claimed by defendant be Increased.

The material facts of this controversy are: In 1889 the three plaintiffs, Mrs. Eate Saunders Brigham, J. W. Brigham and Wesley G. Brigham, all then minors, became entitled to a plantation and other property in the parish of Ouachita, as the heirs of their uncle. A suit was brought against his heirs in the United States District Court for the Western District of Louisiana, for the property left by him, and to represent the plaintiffs in that suit, as well as to attend to their interests in the succession of their uncle, their mother employed defendant as counsel. Thus began, in 1889, his relations out of which this controversy arises. The plaintiff rendered the professional services required, the suit was defeated and plaintiffs, still minors, were put in possession as heirs of the plantation and other property falling to them in the partition. It is urged by defendant that his relations with plaintiff and their mother, subsequently qualified as their tutrix, was simply that of counsel in the suit for the property and to conduct the partition and other succession proceedings. The plaintiffs claim he was not only counsel, but the business agent; of their mother, not, it is said, qualified for business, and needing his assistance. The record shows he leased the plantation, received rent notes, paid taxes, we infer from the tax receipts produced by him, and attended to the plantation business. It is in evidence that from the outset in 1889, he was in habit of advancing money to the plaintiff’s mother, and these advances were kept up to plaintiffs after they became of age. With relations of this character in 1890, the plantation was advertised to be sold for the taxes of 1889, and Mrs. Saunders brought the tax notice to him with the request he pay the taxes, one hundred and twenty-one dollars. He testifies that he refused; that he had no money for the minors; that he stated he would buy the property at the tax sale; that it would be security for advances; that plaintiffs would have one year to redeem, and, besides, he suggested this would perhaps save the property in the event of an unfavorable issue of the Federal court suit then pending, to all which he testified the mother consented, and in turn urged. Her testimony is, in substance, she took the tax notice to him, asked him to pay the taxes; that he then had the funds; that he refused— stated that he would buy, and. advised letting him buy, to save the property from the litigation in the United States Court. This was followed by his purchase of [the property for one hundred and twenty-one dollars, the tax deed bearing date the 5th of July, 1890.

The value of the plantation is averred to be over five thousand dollars. On that point we have the indirect testimony that for the years 1890, 1891 and 1892 a lease had been effected by defendant for plaintiffs just previous to this tax sale at seven hundred and fifty dollars per annum.

As to the means of plaintiffs when this tax sale occurred, the record shows that the three rent notes aggregating two thousand and seventy-five dollars were received by defendant, turned over or placed at the mother’s disposal, and were used by her as collateral to secure his advances, at the time of the sale much less than •the notes; these notes were paid later, and there is in the record ".his receipt to her for the proceeds. Besides the notes the minors -owned stock in an ice company, which realized, later, one thousand -one hundred dollars. In June, 1890, but a few days before the sale, we find a paper purporting to be a private sale of this stock to defendant, later on an order of court for the sale and an agreement by her that defendant should apply the proceeds, eleven hundred dollars, for his fee in the Federal court litigation. The bearing of this testimony on the question of the ability of the plaintiff’s mother to pay a tax bill of one hundred and twenty-one dollars, and avert the .sale of a valuable plantation, has been vigorously pressed in the argument.

After, as before this tax sale, defendant continued his advances to plaintiffs and to the mother. He claims to have applied the rent notes to their wants, and it is impressive if the tax sale carried the title the rents were his from July, 1890. Thera are brought up in this record a mass of.letters and notes addressed to defendant by plaintiffs and their mother for money to pay store bills, doctors’ bills and other wants of the family. Up to a short time before the institution of this suit, the defendant responded to these demands, and the whole course of dealing seems to imply that he stood in a very different relation than that of mere counsel in the suit in the .Federal court, and reflects a light backward to the tax sale when he purchased the property at the tax sale, the sequel of the mother’s application to pay the taxes.

It also appears that the defendant made an offer of settlement with the plaintiffs which they declined, It further appears that subsequent to the tax sale he obtained in the course of his advances relinquishments of title from plaintiffs on which he relies. All relations came to a close by the disinclination of defendant to continue his advances and this suit followed.

The petition charges, in effect, the tax sale was a nullity by reason of the relation of attorney and client subsisting between the parties; that the defendant had money in his hands to pay the taxes and his purchase was a violation of duty and trust; on the same grounds, and, besides, because a private sale of minor’s property for no price paid, the sale of the ice stock, it is averred, conferred no title on defendant; the relief sought is a judgment for the property, its revenues and for the ice stock and its dividends. The answer avers the validity of the tax sale; that there was no agency to preclude him from purchasing; that plaintiffs have ratified it by their subsequent conduct and the relinquishments of title; there are also the pleas of prescription of one and three years; and in the alternative thbre is the prayer, if the sale is annulled, that he have judgment for useful improvements, taxes paid, and there are reconventional demands for the amounts advanced plaintiffs, evidenced by the mass of vouchers brought up in the originals, and in respect to which we are not much aided by classification in the briefs, pleadings or discussions. The judgment of the lower court was in favor of two of the plaintiffs, Mrs. Brigham and Wesley G. Saunders, the one coming of age in 1891 and marrying soon after, the other attaining majority in 1894, for the property; rejecting the demand of J. W. Saunders attaing his majority after the tax sale, and the lower court holding him bound by his relinquishment. The lower court, excluding all inquiry, as we gather the theory of the judgment, of revenues prior to 1892, and all claims of defendant for improvements, but charging Mrs. Brigham and W. G. Saunders with the amounts advanced them, and crediting them with the revenues subsequent to 1892, decreed each liable to defendant on this method of adjusting accounts, one for six hundred and seventy-six dollars, and the other for three hundred and eighty-two dollars. As to the ice stock the judgment maintains defendant’s title. As already stated plaintiffs on this appeal insist on the demands in the petition; defendant asks in his' answer for the modification already stated.

The relation defendant bore to these plaintiffs and their mother, who engaged his services, is, in our opinion, of controlling influence. His position is that he stood simply as their counsel in the litigation in the Federal court, and was as free to buy at the tax sale as any stranger. The property he bought, i. e. the plantation, was the subject of the litigation in which he was counsel.His relation in that capacity aloue imposed, in our view', a restriction of his capacity to buy his client’s property. The confidence that the client gives to his attorney; the influence the relation itself enables the attorney to exert is the basis of the general principle that any transaction between the client and attorney by which he obtains the client’s property will be scrutinized closely and set aside when the attorney is benefited at the client’s expense. The principle needs no elaboration, is of constant recognition, and finds the clearest exposition in the text-books and decisions. ' 1 Story’s Equity Jurisprudence, Sees. 310, 311, 312. There was more than the relation of client and attorney in this case. The current of the testimony is that the plaintiff’s mother looked to defendant for that attention to her business she was unwilling or incompetent to bestow. At the outset he leased for her the plantation. Whether delivered to him or pledged for his advances we find him practically in control of the rent notes, when but a small amount was due him for advances.With these securities for his advances inhis hands or, as we conclude, would have been delivered to him, if asked for, she might well expect he would make the small advance for the taxes. If we look beyond the beginning of defendant’s relation for the illustration of its character, all the usual indications present themselves that mark the informal agencies so usual in everyday life. In 1889, 1890,. 1891, 1892 and to a later period there are the frequent calls on him from plaintiffs and their mother for such money as they required. True he treats them as loans or advances. They carry to our minds a deeper significance. Unless these defendants had some right to call on him, it is not reasonable to suppose they would have made these calls on him for money, and still less conceivable he would have responded. In our view the entire intercourse between these parties from the outset puts the defendant in the position that authorize her when threatened with a tax sale to seek his advice and assistance, and in that appreciation she carried to him the tax notice. It he had simply refused notwithstanding her notes were practically at his disposal, it was reasonable to suppose she could and would have made other arrangements to avert a tax sale of a valuable plantation for the pittance of one hundred and twenty-one dollars, but instead he made the suggestion consented to by her, it is true, of the sale and purchase by himself. If then the relation of attorney as a general rule precludes his purchase of the client’s property there is in this case the added force to the prohibition arising from the intercourse and transactions between defendant and the plaintiff’s mother which prompted her to call on him for that advice directly leading to his purchase. Can he profit by that purchase to the injury of the client who soughthis advice? It seems to us, too, that with the large margin of the rent notes unpledged at the time without reference to the one thousand one hundred dollars of ice stock, the subject it is true of the private sale to defendant, but a short time previous, and the ownership of a valuable plantation, excluding any necessity to sell the plantation for one hundred and twenty-one dollars, there is the greater reason to hold that defendant’s relation to these plaintiffs, whether viewed as counsel, or in that other aspect in which the testimony presents him, precluded his acquisition of the property.

There is yet another view that has had its weight with us. It is difficult to resist the conclusion from defendant’s subsequent conduct that he did not appreciate his title as ownership in the ordinary sense. The significance of his advances to parties who had no claim on him if he was vested with full title, is obvious. The absence of any claim on his part as purchaser to the rent notes which the tax sale carried, if it conveyed ownership at all, is impressive. We have in the record more than one effort on his part to obtain relin-quishments of plaintiff’s claims to the property. There was no occasion for any surrender to him of their claims if the tax title had the efficacy now attributed to it. With all the light obtainable from the record and the application of the appropriate legal principle, we can not hold the tax title obtained under the circumstances of this case divested plaintiff’s ownership.

If, then, the defendant held the legal title with that reservation in favor of the plaintiffs, the law implies and the facts support, could he impose conditions or terms on them other or beyond the reimbursement of his expenses incident to his purchase? In the ordinary-case the tax title becomes absolute by the failure to redeem. But can redemption be stipulated or failure to redeem invoked to convert into an absolute title, one originating in trust and confidence, and the character of which is so well defined by law? The answer we think obvious.

The relinquishments of- title by Mrs. Brigham and J. W. Saunders are relied on by defendants. We must in considering these relinquishments give due weight to the circumstances in which the papers were obtained. The defendant had possession of the plantation and in the full enjoyment of its revenues. The rent notes that might have saved the plantation were absorbed, it is claimed, by defendant’s advances and interest; the ice stock, worth one thousand one hundred dollars, had been taken before the tax sale under the private sale, followed by the judicial sale. In less than two years these plaintiffs had lost all the property derived from their uncle, and which at his death seems to have been wholly unincumbered. It was in the course of the advances by the defendant to Mrs. Brigham and J. W. Saunders that these relinquishments were made. If we can rely on their numerous applications it was destitution that prompted their requests for pecuniary aid from defendant, on whom they conceived they had a claim. The notes and letters for the money that defendant gave are appealing in their character in describing the distress for clothes, food and necessaries. What effect can we give relinquishments under such circumstances, if title, legal or equitable, existed in those from whom these relinquishments were obtained? The relinquishments purport to be one for money loaned; another for value received, another is attached to a receipt of fifteen dollars in full settlement of all her claims for the property inherited by her. Others are of similar character; all evidently based on the various sums from time to time advanced by the defendant. We can not adjust the accounts between these parties by classification necessarily of great detail based on the mass of vouchers in the record. As we read the record there was the application in 1892 of the two thousand dollars derived from the rent notes. That must have settled the advances, or, at least, a large part, up to that date. The amounts, claimed from the plaintiff in this suit are, respectively, six hundred and fifty dollars, one thousand and fifty-five dollars and nine hundred and fifty-five dollars. With the settlement in 1892, absorbing the two thousand dollars, and in view of the amounts claimed to be still due, on what basis approximating to equivalents do the relin-quishments rest of the title to the plantation. They are supported by no adequate consideration. If, as we think, the defendant held the plantation for the heirs, they were entitled to the property; he was entitled to be reimbursed his advances, but, in our opinion, he could not defeat plaintiffs’ right to property by relinquishments based' on advances to parties entitled to the property and its revenues. There are grave charges connected with the obtaining these receipts. We pass over this part of the case. We feel bound to state such charges are not to be readily accepted and we do not think they are proved.

The ice stock transaction has been the subject of severe criticism. We can not recognize the private sale of minors’ property, but there was a subsequent judicial sale. It is proved, however, that defendant stipulated for his fee of one thousand one hundred dollars, and we conclude earned it. It is not questioned the ice stock brought its full value, one thousand one hundred dollars, and the proceeds of the stock paid the fee, and that fee for services in the interest of minors to protect their property was binding on the plaintiffs.

We have been compelled to apply to this case legal principles from which we are inclined to believe defendant did not intend to depart. He did not seek the position in which he found himself after his purchase. He was clothed with the legal title. The property required expenses to keep it in proper condition. The plaintiffs had no means to redeem and none to pay him either the money paid for the tax title, or for the improvements on the property he was compelled to make, nor his advances, small as we think they were, in comparison with the rent notes used for that purpose. It is in proof he offered a settlement, but no settlement requiring money from plaintiffs was ia their power and his retention of the property and this suit was the result.

The views expressed indicate our conclusions as to the proper ad - justment of the rights of the litigants. The plaintiffs are entitled to the plantation and its revenues from the date of his purchase. Although defendant’s advances were in part to the tutrix, we do not think he is to be subjected to the rule that restricts the charges of the tutrix to amounts within the minor’s revenues. The defendant. could have discharged himself from all liability by transferring to her the property and its revenues. Every payment or advance by him to the tutrix or to Mrs. Brigham after her marriage, and W. G« Saunders after his majority, and to J. W. Saunders, are to be allowed) him with interest. To the extent the plantation has been improved in value, the full amount of taxes and other necessary expenses for the maintenance of the plantation must be reimbursed. In the condition of the record we can not adjust the accounts, but will remand the case for that purpose.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed; it is further ordered, adjudged and decreed that plaintiffs be and they are hereby decreed to be the owners of the plantation sued for in this case and described in their petition; that defendant’s tax title thereto, of date 5th July, 1890, be annulled; that plaintiff do have and recover from defendant the revenues thereof from the date of his purchase, diminished by the taxes, value of useful improvements made by defendant and by all payments or advances by him to Mrs. Saunders as tutrix, or to the plaintiffs, with the interest thereon, the revenues for 1890, 1891 and 1892 being fixed by the rent notes; that to adjust the account the case be and is hereby remanded, and in all other respects tha plaintiff’s demands be rejected and that defendant pay costs.


author: McEnery, J. Nicholls, C. J.

text:
    No. 11,448.
    A. Meyers & Bro. vs. W. H. Henderson et als.
    1. The partial destruction of leased premises does not of itself dissolve the lease. If the demand of the lessee for the cancellation of the lease is resisted, the-fact of partial destruction must he necessarily decided by the court according, to the circumstances.
    2. The abrogation of leases is not favored except in extreme eases. But where the-partial destruction has been of such nature as to menace discomfort to the tenant during the entire term; to cause the tenant to abandon the premises in order that repairs may be made; when the premises are no longer suitable to the purposes for which they were leased — in such cases the contract of lease, should be annulled.
    A PPEAL from the King, J. Civil District Court for the Parish of Orleans-

      Lazarus, Moore & Luce for Plaintiffs, Appellees.

      Fenner, Henderson & Fenner for Defendants, Appellants.
    Argued and submitted April 26, 1894.
    Opinion handed down May 7, 1894.
    Argued and submitted on application for rehearing November 7, 1894.
    Opinion handed down January 2, 1895.

       This case should have been published in the 46th Annual Reports.

   The opinion of the court was delivered by

McEnery, J.

The plaintiffs leased from defendant, Henderson-, the property No. 100 Oanal street, for a term of five years from 1st October, 1890.

The property was partially destroyed by fire, and this suit was instituted by plaintiffs to annul the lease.

. There was judgment for plaintiffs and defendant appealed. The lessors admit the partial destruction of the property, and are Willing to remit that part of the price of the lease during the time the building was undergoing repairs. There is an energetic controversy in the ease as to the interpretation of Art, 2697, O. 0., whether the right of election to so demand, in case of partial destruction of the premises, the reduction of the rent, or the dissolution of the contract of lease, when made by the lessee, becomes absolute when exercised, leaving no discretion to the court, which is bound to give judgment in accordance with the election made by the lessee. Practically, the discussion amounts to little, for if the lessor resists the demand of the lessee for the dissolution of the lease, the question of “ partial destruction ” must necessarily go to the courts for solution. It becomes one of fact.

Article 2697, O. 0., says: “ If during the lease the thing be totally destroyed by an unforeseen event, or if it be taken for a purpose of public utility, the lease is at an end. If it be only destroyed in part, the lessee may either demand a diminution of the price or a revocation of the lease.”

Article 2699 says: “If without any fault of the lessor the thing ceases to be fit for the purposes for which it was leased, or if the use be much impaired, as if a neighbor, by raising his walls shall intercept the light of the house leased, the lessee may, according to circumstances, obtain the annulment of the lease, but has no claim for indemnity.”

From the above article it is clear that if is not every partial destruction which will dissolve the lease, but it depends upon the facts, of each case, “according to the circumstances,” whether the lease-shall be annulled. It may be that only portions of - the building may be destroyed which would not disturb the quiet possession of the-lessee, or greatly inconvenience him, such for instance as the partial-destruction of ornamental work, exterior cornices, galleries, sheds, etc. It would be quite different if there were such a partial destruction as to expose the inmates of the house and their property to the-elements, thus compelling them to abandon the house and deliver it-into the possession of the lessor for purposes of repair. In such a contingency'the thing leased ceases to be in that condition to serve the purposes for which it was leased, and the lessee’s peaceable possession of the thing leased is disturbed. C. C. 2692; Coleman vs. Height, 14 An. 570.

In case of Dussau vs. Husband, 6 An. 279, the court said that. the lawgiver did not contemplate the dissolution of leases, except in extreme cases, but rather an equitable indemnity to the tenant for a temporary inconvenience sustained unexpectedly and without the-fault of the lessor.” And this doctrine has been affirmed in 17 An. 322; 12 An. 828; 21 An. 23. But when the partial destruction has been of such a nature as to menace discomfort to the tenant during the entire term; to cause the tenant to abandon the premises in order that repairs may be made when the premises are no longer suitable for the purposes for which they were leased, in such cases it is clear that the lease should be annulled.

The partial destruction of the building leased by plaintiffs from defendants made it entirely unfit for the purposes for which it was leased. It was a wreck. It was not habitable; it was unfit for the storage of goods and merchandise. The necessary repairs to it required some months for their completion.

If these facts alone were presented the plaintiffs would be entitled to a decree annulling the lease.

But there is an insurmountable obstacle to granting the relief prayed for by plaintiffs. On 28th January, 1892, the plaintiffs brought suit against M, H. Rothschild & Co. for an alleged lease to them of the building 100 Oanal street. In this suit there was judgment for defendants and the plaintiffs appealed to this court. This suit is still pending. In their petition in the suit against Rothschild & Co. they aver “ your petitioners tendered to M. H. Rothschild & Co. the premises No. 100 Oanal street and placed-the use and occupancy of the same at their disposal, and that said premises are vacant and unoccupied, and that Rothschild & Co. refuse to pay under their contract the rent therefor.” This sublease was made 10th August, 1892, for the unexpired term of plaintiff’s lease from the Hender-sons. The partial destruction of the building occurred on 21st September, 1893.

Thus by their continuous judicial action the plaintiffs have placed it beyond their power to surrender the leased premises to the owners. The suit was a notice to them that they desired the continuance of the lease. The lessors could not take possession of this property in the face of the judicial declarations of plaintiffs. These facts — these judicial declarations of the plaintiffs bring this case directly within the ruling of Penn vs. Kearney, 21 An , p. 21. In that case the defendant retained a portion of the leased premises, a part of which had been destroyed by fire. In a suit against him for the rent he prayed in answer for an annulment of the lease on account of this partial destruction. The language of the court may be appropriately applied here. “If the defendant had surrendered to plaintiffs the whole premises our conclusion might have been different, though even in such a case it must be remembered that our laws do not favor the abrogation of leases where the lessor is not in fault.”

It is contended by plaintiffs that the effect of this suit against Rothschild & Co. is done away with by an agreement between them and Rothschild & Co. The agreement was that Rothschild & Co. assented to this suit, and they were to receive whatever benefits which might result from the suit instituted against these defendants. This agreement can nob affect the issues in this case. It can not prejudice the rights of defendants who were not parties to it. As matters are presented plaintiffs have placed it beyond their power, as stated above, to surrender the property to the lessors, who have been deprived of its possession by the judicial acts of plaintiffs. In effect the continuance of their proceedings against Rothschild was a demand for the continuance of the lease, otherwise it would have been out of their power to deliver possession to and maintain the same in Rothschild & Co. for the unexpired term. They, in fact, kept possession in order to deliver to Rothschild. This is inconsistent with a demand for a dissolution of the lease. 23 An. 23.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that there be judgment in favor of defendants, dismissing plaintiffs’ suit and dissolving and setting aside the injunction herein, the plaintiffs to pay costs.

On Application por Rehearing.

The opinion of the court was delivered by

Nicholls, C. J.

The plaintiffs leased from defendant Henderson the property No. 100 Canal street, for a term of five years, from October 1, 1890.

The property was partially destroyed by fire on the 21st of September, 1893. This suit was instituted on October 3,1893, to annul the lease, plaintiffs having met with a refusal the day previous (October 2, 1893) to a demand for the return of the notes for the unexpired term of the lease. Judgment was rendered in the case on the 9th of January, 1894, in the District Oourt, annulling the lease as prayed for. Defendants, on the 23d of January, 1894, perfected a suspensive appeal from the judgment by giving the required bond, and this court, on the seventh day of May, 1894, reversed the judgment of the lower court.

Plaintiffs applied for a rehearing.

At the time of the judgment rendered by us, the suit of A. Meyer & Bro. vs. M. H. Rothschild, to which reference is made hereafter, was also before us, under an appeal taken by the plaintiffs therein from a judgment adverse to them. Upon the same day that our judgment was rendered in the present suit, we affirmed the judgment rendered in that case by the lower court and our judgment has become final. 46 An.

In the opinion heretofore rendered by us, in the case now before us, we held that “the partial destruction of the building leased by plaintiffs from defendants made it entirely unfit for the purposes for which it was leased. It was a wreck. It was not habitable; it was unfit for the storage of goods and merchandise. The necessary repairs to it required some months for their completion,” and we declared that “if these facts alone were presented, the plaintiffs would be entitled to a decree annulling the lease.” We see no reason to change our views so expressed.

We have carefully considered the grounds which defendants assign as those which legally stand in the way of the relief prayed for by the plaintiffs.

It appears that in the summer of 1892 one M. H. Rothschild negotiated with the attorney of the present plaintiffs for the unexpired term of their lease for the price of five thousand two hundred and fifty dollars per year. Security was demanded from Rothschild, who was either unable or unwilling to give it. On the 10th August, 1892, a verbal agreement was reached by which he consented to take the unexpired term by paying in advance, with a discount of eight per cent. After this agreement, he declined to take the premises, and A. Meyer & Bro., on the 28th of January, 1893, brought suit against him for the recognition and enforcement of their alleged rights under the same.

In the petition in that suit they alleged that they had leased the property to Rothschild, and had tendered him the premises and placed the use and occupancy of the same at his disposal, and that the premises were vacant and unoccupied, and that he refused to pay under his contract the rent therefor.

Rothschild denied that there was any valid contract of lease, and specially relied upon the fact that the lease from the Hendersons to Meyer & Bro. contained a clause prohibiting their leasing the property to others without the consent of the original lessors, and that this consent had never been given. The District Court on August 17, 1893, sustained the defence set up, and rendered judgment in favor of Rothschild against the plaintiffs. The plaintiffs appealed, perfecting their appeal by giving bond on September 6, 1893. The transcript of appeal was duly filed (November 9, 1893) in this court, argument on both sides heard, and our judgment of affirmance, to which we have alluded, was rendered on the 7th day of May, 1894.

In our opinion we declared that the consent of the Hendersons to the lease had never been obtained, and this our conclusion was to a great extent based upon the testimony of the agents of the Hender-•sons which had been taken upon the trial. Holding that “ this consent was essential to the perfection of a contract of lease between the parties who could not by any agreements between themselves supply the missing link,” and that this consent had not been given, we necessarily sustained the judgment appealed from.

While defendants offered in evidence in the lower court the record of the District Court in the case of A. Meyer & Bro. vs. Rothschild, it was not in support of any plea or averment in their answer, setting up the pleadings in that case, or the course pursued by the plaintiffs therein, as a special defence or bar to this suit, but evidently in aid of the position then taken by them, that at the time of the fire and before the same, A. Meyer & Bro. had gone to another building, and had no intention of occupying or remaining in the property leased by the Hendersons, and that therefore no injury was occasioned them by the temporary unfitness of the building for occupancy. The objection taken by the plaintiff to the admissibility generally of the record, and the remarks of the District Judge, in passing upon the objections and restricting the reception of the evidence, show this to have been the fact.

Defendants press upon us that the fact that A. Meyer & Bro. had made a lease to Rothschild is undisputed; that this is shown by the judicial allegations in their suit against him, and they urge upon us that they were prosecuting that suit at the time the cause for dissolution of the lease arose, and that they continued to prosecute the same during the whole period of the pendency of the present suit; that proof of these facts is entirely equivalent to a judicial admission made in the present case on the trial thereof. In their brief on rehearing, they say they were not aware when their answer was filed (as the Rothschild record had not yet been lodged in the Supreme Court) ; that plaintiffs still continued the prosecution of their suit against him, hence the absence of special plea of the sublease, but that the evidence was admissible under the general issue — that •defendant could urge under the general issue plaintiffs’ failure to establish a condition precedent to his right of recovery — that their retention of the right of occupancy was a condition precedent to their right to sue for a dissolution of the lease, and their sublease to Rothschild operated an abandonment of their right of occupancy. They contend that plaintiffs, by their continuous judicial action, •placed it beyond their power to surrender the leased premises to them; that the suit was a notice to them that they desired a continuance of the lease. That the lessors could not take possession of this property in the face of the judicial declarations of plaintiffs, and that these judicial declarations bring the case directly within the ruling in Penn vs. Kearney, 21 An. 21." They further declare that it is evident that no question of estoppel arises in the case.

An examination of the Rothschild record in the lower court shows that that case was tried, judgment rendered and appeal to the Supreme Court perfected before the fire which caused the partial destruction of the property leased. Nothing, therefore, in that record of itself could have any bearing upon plaintiffs’ right to maintain an action for the dissolution of the lease when the fire occurred, for we adhere to the views expressed in our original opinion that it was legally immaterial whether, at the time of the fire, Meyer & Bro. were actually in the building or not, or whether or not they had proposed to occupy it during the time it was unfit for use. If plaintiffs’ rights have by their action been impaired it must rest upon the proposition that, either when the fire occurred or since, they have placed themselves in a position such as would prevent. them from making a surrender of the property to the Hendersons. Plaintiffs point to the active prosecution by Meyer & Bro. of the appeal taken by them against Rothschild, even after the decision in the present case had been rendered in the lower court, as a continuing judicial admission, and insisting upon the fact that the Henderson property was still under lease to Rothschild, and therefore necessarily as still under lease to them, as Rothschild held under them.

There can be no doubt that Meyer & Bro. believed, when they insituted their suits against Rothschild, that they had made a legal lease of the property to him. Our opinion in that case shows that as between those parties there was an agreement of lease, but that it was inoperative by reason of the fact that the Hendersons had never given their consent to the same. The Hendersons were aware of that fact. The testimony of their own agent was to that effect, and this fact placed it out of the power of the Meyers to make a legal delivery of the premises to Rothschild. The Hendersons could have successfully objected. There never was a moment when such a delivery could be made to Rothschild, and it was precisely on this ground that he resisted and disclaimed liability. This fact has been judicially determined. It can not be gainsaid. It is a mistake, therefore, to argue that Meyer & Bro. were at any time barred from surrendering. Not only this, but it is obvious that they had no desire themselves to hold and beep possession of the premises. No portion of the future rent would go to them. The whole would go to the original lessors, if a lease to Rothschild could be maintained. The demand of the defendants for a return of the notes, made as early as the 2d of October, showed plainly that the Meyers claimed and desired no further possession, and a consent by the Hendersons on that day to their demand could have met with legal opposition nowhere, certainly not from Rothschild, who had constantly maintained and was then successfully maintaining that he was under no legal liability to the Meyers and necessarily, therefore, none by the Meyers to him. The Hendersons themselves could predicate nothing upon a lease to Rothschild, for they had not then nor have they ever given any consent to such a lease. Had the minds of the Hendersons met that of the Meyers relatively to a cancellation of the lease, the immediate effect would have been legally a forced abandonment by Meyer & Bro. of the appeal from the Rothschild judgment and an acquiescence therein. Certainly from that time forward, if not before, they would be estopped from holding Rothschild. Such an abandonment would not be adverse to Rothschild, but directly in his interests and in line with his pretentions. If Rothschild instead of being a defendant had been a plaintiff seeking to hold the Meyers to a lease alleged to have been made to him by them, prior to the fire, with the latter ñrm resisting the claim, the existence of such a suit based on such a claim might have furnished some fear on the part of the defendants as to their position ultimately in regard to the property, and some fear that they might be held by expressions of their agent in the course of the negotiations between the Meyer & Bro. and Rothschild to have expressly or impliedly agreed to the sublease, and that they might themselves finally be confronted by a successful claim to possession from Rothschild, but with matters standing as they did, we do not see what adverse, claims to a delivery of possession could possibly have arisen. As the Meyers had been cast in their action against Rothschild, and the Hendersons had appealed from the judgment against them, and the final result of lawsuits is always a matter of uncertainty to litigants, we see nothing in the prosecution by Meyers of their own appeal, which would impair their actual legal rights. Their appeal was evidently only prosecuted contingently, and as the result of the appeal in this case. It may not be amiss to say that the asserted lease from Meyer & Bro. to Rothschild antedated the fire, was for the whole property, and for the whole of the unexpired term, and therefore the partial destruction of the property, which would give rise to a dissolution of the lease as between Meyer & Bro. and the Hendersons, would also have given rise to a right of dissolution as between Meyer & Bro. and Rothschild, had there been a lease between those parties. The Meyers could not themselves have held Rothschild as a lessee beyond the date of the fire. Could they have successfully maintained their claim that there was a valid lease of the premises from themselves to Rothschild, they would have had a just claim to rent from him up to that date, and therefore they had a direct interest even after the fire in obtaining the reversal of a judgment which held that they had no claim at all against Rothschild.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment rendered by us in this case be and the same is hereby set aside, and it is now ordered, adjudged and decreed that the judgment appealed from be and it is hereby affirmed.

Mr. Justice McEnery adheres to the original opinion.


author: Blanchard, J.

text:
    No. 12,511.
    State ex rel. Joseph L. Bourdette vs. New Orleans Gaslight Company.
    Artioie 245 ol the Constitution secures to shareholders of the capital stock of corporations the right to inspect the books of such companies.
    when the right of inspection is denied the writ of mandamus will lie to enforce it.
    By “ public inspection,” as used in the article of the Constitution, is meant, not the inspection of the idle, the impertinent or the curious — those without an interest to subserve or proteci^-but the inspection by those with a laudable object to accomplish, or a real and actual interest upon which is predicated the request for information disclosed by the books.
    APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      Olegg & Quintero for Plaintiff, Appellee.

      Buck, Walshe & Buck for Defendant, Appellant.
    Argued and submitted June 18, 1897.
    Opinion handed down June 25, 1897.
    Rehearing refused December 18, 1897.
   The opinion of the court was delivered by

Blanchard, J.

The relator seeks by mandamus to compel defend-ant company to permit him to inspect its books.

He alleges himself to be a citizen of the State and a shareholder-in the capital stock of the company. As such, he claims the right to inspect and examine those books of the company that record the amount of the capital stock subscribed, the names of owners of' stock, the amounts owned by them respectively, the amount of, stock paid and by whom, the transfers of stock and the dates-thereof, and the assets and liabilities of the company. The averment is made that he applied to the officers of the company and the custodians of its books for permission to examine the same and was refused it. He represents that the right to examine the books is a-valuable one to him, that it is guaranteed by the Constitution of the State, and is necessary to the transaction of his business.

He prays that the president of the company and its secretary, wIkd are alleged to have possession and control of the books, and whose-duty it is to open the same for his inspection, be commanded to'do so.

The alternative writ duly issued, and for cause why the same;should not be made peremptory, the president and secretary pleaded as exceptions:

That the petition discloses no cause of action.

That there was a misjoinder of parties, the president alone being-the official, if any, against whom the suit should be brought.

That no proper demand was made for inspection of the books.

That, with regard to the demand which was made, no action on. the same was taken, there was no refusal thereof and the suit is; premature.

Answering to the merits they pleaded, in substance:

That Art. 245 of the State Constitution, invoked by relator,.has, no application for the reason that it is not self-acting, and that no legislative enactment giving effect to same exists.

That if said article is operative and effective, it is only so to the extent of enforcing the location of a public office for the company where the books and records are to be kept, and does not affect the control of the affairs of the corporation as provided for by its pre-existent charter and regulated by the general law in operation when the Constitution was adopted.

That the construction contended for by relator is violative of the obligation of contract as implied in the charter of the company and the laws then in force, and contravenes Sec. 10 of Art. 1 of the Constitution of the United States, as well as the provisions of Art. 155 of the State Constitution.

That, in any event, the right claimed under Art. 245 is not absolute, and a just and reasonable motive and purpose must be alleged and shown, and it is denied that the case presents such.

All of these defences were held insufficient in the court below, and so they must be here.

Article 245 of the Constitution secures to the relator the right he claims.

Being a shareholder, and representing that the right to examine the books was valuable to him and necessary to the transaction of his business, and that this right had been denied by the principal officers of the company, he sets forth a cause of action within the purview of the constitutional provision.

It is an elementary canon of construction that the plain letter of a law must not be departed from under pretence of pursuing its spirit. Art. 245 not only requires that all corporations doing business in the State must maintain an office here, but explicitly declares that books exhibiting certain enumerated affairs of the- corporation “ shall be kept for public inspection.”

By “public inspection” is meant not the inspection of the idle, the impertinent, or the curious — those without an interest to sub-serve, or advance, or protect. It was never contemplated that any and everybody, as the whim may seize him or them, should be permitted to walk into the office of a company or corporation and pry into its affairs. But a shareholder or other person with a laudable object to occomplish, or a real and actual interest upon which to predicate his request for information disclosed by the books, is given by the fundamental law itself the right to inspect them.

Nor. is this article one requiring legislative action to render it effective. Its terms are so plain and explicit, its meaning so precise, its directions so mandatory, its purpose so apparent that it must be held to be self-acting.

The evidence establishes that the relator made personal application at the office of the company for examination of the books and was told by the official he found in charge that the president of the company had given instructions no inspection of the books by shareholders was to be allowed.

Following this, formal demand in writing was made by counsel representing the relator upon the secretary of the company for permission for him to examine the books. This demand was not acceded to, and it does not avail defendant now to urge that no proper demand was made, or that the suit is premature. It were useless for relator to proceed further with the demand to see the books after ascertaining that the president of the company had given instructions not to exhibit them to any one. It appears, too, that immediately subsequent to the institution of this action the president sent for the relator, and while explaining his position persisted in the refusal to open the books to him.

The motive impelling relator to seek an inspection of the books is fully disclosed in the testimony — was drawn out on his cross-examination by counsel for defendant. It showed sufficient reason for his request, as well as commendable prudence and business sagacity in seeking information to determine the present value of his holdings and to guide his future action in reference to the stock of the company.

No better way of safeguarding the interests of the public can perhaps be devised, or one that may be so easily and readily applied, as the right to the frequent, sudden and speedy examination of the books of corporations in the stock or shares of which investors and speculators are invited to trade.

The recognition of this fact attests alike the wisdom and purpose of the framers of the Constitution.

The question here presented was virtually passed upon in Legendre vs. Brewing Association, 45 An. 669, and adversely to the pretensions of defendant corporation herein. See also State ex rel. Martin vs. Bienville Oil Works, 28 An. 204; Cockburn vs. Union Bank, 13 An. 289.

In the United States the prevailing doctrine appears to be that the individual shareholders in a corporation have the same right as the members of an ordinary partnership to examine their company’s-books, although they have no power to interfere with the management. Morawetz Corp., par. 473.

This doctrine obtains with all the more force in. this State by reason of its recognition in the Constitution itself.

We have given due consideration to the contention of defendant that the construction of the constitutional provision insisted on by relator is violative of the obligation of contract as implied in the charter of the company and the laws in force at the time of its adoption, without, however, being able to concur in the conclusions of the company in this regard.

Judgment affirmed.


text:
    No. 12,573.
    State ex rel. Mrs. Widow L. A. Toussaint vs. Judge Third City Court et al.
    The jurisdiction of the city courts of money demands not exceeding one hundred dollars, including suits for rent, is qualified by the exclusion of jurisdiction when the suit Involves the title or right of possession of immovable property. Constitution, Art 135; Amendment Act No. 125 of 1882; Act No. 15 of 1880; 33 An. 116; Code of Practice, Art. 1068.
    Under the guise of a rent suit the city court has no jurisdiction of a controversy between the heir of the husband and his widow, the heir suing her for rent of an immovable he claims by right of inheritance; she, as property acquired during the marriage, and to which site asserts the rights conferred on her by law as widow in community. Civil Code, Arts. 2399, 2102, 2122; Joffrions vs. Bordelon,. 11 An, 628; 7 An. 101; 5 An. 611.
    ^N APPLICATION for Writs of Prohibition and Certiorari.

      Thomas J. Maher for Relatrix.
    Respondent Judge pro se (J. Paris Childress of Counsel).

      William J. Hennessey for Joseph Hall, Respondent.

      Submitted on briefs November 2, 1897.
    Opinion handed down November 29, 1897.
   The opinion of the court was delivered by

Miller, J.

The relator seeks the writs of certiorari and prohibition to restrain further proceedings in the suit against her for twenty dollars for rent, brought in the Third City Court.

It appears from the record that the premises for which the rent is claimed was purchased by the husband of relator during the marriage. The plaintiff suing for rent is the heir of the husband recognized and decreed to be put in possession by the Civil District Court. The relator excepted to the jurisdiction of the Third City Court on the ground that ratione materise the court had no jurisdiction of the controversy, involving as it did the right of the widow in community to occupy immovable property acquired during her marriage, and the act by which her husband purchased the property was annexed and made part of the exception. The court sustained the jurisdiction, and this application followed.

The jurisdiction of the city courts is of controversies in which the' amount involved does not exceed one hundred dollars. But there-has always existed this qualification of the jurisdiction of justices of the peace, now succeeded by the city courts, that justices shall have-no jurisdiction when the suit involves the question of the title or' right of possession of an immovable. This limitation, in our view,is in full force and applicable to the city courts, as it was to the jus--tiee’s courts, displaced by the city courts. Constitution, Art. 135; Amendment Act No. 125 of 1882, Sec. 5; Act No. 45 of 1880; Beard vs. Cash, 32 An. 122; Code of Practice, Art. 1068.

We are not called on for any opinion whether or not the property for which the rent is claimed belongs to the community existing between the relator and her deceased husband. But to determine the question of jurisdiction we take cognizance of the character the law places on property acquired during the marriage, and especially of that acquired by the husband, though with funds derived from his separate property. Civil Code, Art. 2402; Paradise vs. Farmers’ and Merchants’ Bank of Memphis, 5 An. 710. We also take cognizance that the surviving wife owes no rent for the property occupied by her at the time of the husband’s death, whether the property belongs to the husband’s heir or the community; at least, while the delay for accepting the community is running. Civil Code, Art. 2422. It is manifest in this case the relator in the lower court asserted by her exception a title to the immovable, and right of possession. The contest is between the heir and the widow in community with reference to the immovable claimed by the heir as separate property of her deceased father in his life and accruing to the heir by inheritance, and by the widow as owning one-half in her community right. In any aspect the controversy involves the title and possession of the immovable. Questions of that character can not be determined by a suit for rent brought by the heir against the widow and are beyond the jurisdiction of the Third City Court.

It is therefore ordered, adjudged and decreed that the proceedings and judgment of the Third City Court be avoided and set aside, and the court, in the suit of Hall vs. Widow Toussaint, is directed to proceed no farther in execution of said judgment.


author: Nicholls, C. J.

text:
    No. 12,595.
    State ex rel. Oscar Broussard vs. Felix Voorhies, Judge, and J. H. Gary.
    Before a regular session of the District Court liad been reached at ‘which was returnable an appeal which had been taken from a judgment before a justice of the peace, the parties to fclie same at a special term of the court which had been convoked, entered into a ‘‘consent and agreement to ‘try’ the ease at that term.” Notwithstanding that agreement the District Court dismissed the appeal upon a motion of the appellee claiming he had not been cited. Held — 'Error.
    The filing of the transcript and the docketing of the ease in the District Court • before the return day did not have the effect of advancing the return day. XJp to that day, at least, appellant would have had the right to have caused citation to issue if none had been made or a new citation to issue if that was defective.
    Appellee could not take advantage of appellant’s consent to “ try ” the case to cut off the latter’s right to have correct citation made.
    His consent to try the case at the special term was a waiver of any exception he might have had of want of citation or of defective citation. Creevy vs. Breed-love, 12 An. 7áo; White vs. McGuire, 16 An. 338.
    The jurisdiction of the District Court having vested through this consent, should have been .retained.

      ^~yN APPLICATION for Writs of Certiorari and Mandamus.

      Walter J. Burke & Bro. for Relator.
    Respondent per se.

    Submitted on briefs November 2, 1897.
    Opinion handed down November 15, 1897.
    On APPLICATION FOR A WRIT OF CERTIORARI AND MANDAMUS.
    The defendant, Gary, brought suit against the relator in the Second Justice’s Court for the parish of Iberia, and on the 24th of May, 1897, obtained judgment in his favor for the sum of ninety dollars, with five per cent, per annum interest from the date of judgment until paid and costs.
    On the 25th of May defendant, having furnished a bond for one hundred and thirty-five dollars, obtained a suspensive appeal from the judgment.
    The record sent up recites, that “thereupon a notice and citation of appeal, of which the following is a copy, was issued:
    NOTICE AND CITATION OF APPEAL.
    J. H. Gary 1 vs. > Oscar Broussard. J
    Second Ward Justice Court for the Parish of Iberia, State of Louisiana.

      To J. H. Gary: Please take notice that the defendant, Oscar Broussard, in the above entitled action, appeals from the judgment therein made and entered in the Second Justice Court for the parish of Iberia on the 24th day of May, 1897, in favor of the plaintiff, for ninety dollars and costs, to the Nineteenth Judicial District Ward of this State, and that said appeal will come up for hearing and tidal in said court at the next term thereof, to be held at New Iberia in the parish of Iberia.
    ’• This notice was served personally upon the plaintiff Gary on the 3'lst of May.

      On the 16th of August a transcript in the case was filed in the District Court. ■
    The first regular term of the District Court after the appeal was to commence on the 20th of September, 1897, and the appeal taken was returnable at that term.
    It appears, however, that a special term of the District Court for the transaction of the civil business was ordered by the judge to commence on the 19th of August, and that the court opened upon that day under the order.
    Upon that day (the 19th of August) the following agreement was signed and filed:
    “ Joseph H. Gary vs. Oscar Broussard.

      “ We, the undersigned counsel, agree and consent to try the above entitled cause at the term of court now in session.”
    On the 20bh of August the following motion was made: “Now into court comes the appellee and moves to dismiss the appeal herein because no legal citation or notice of appeal had been served on him, nor had there been any legal return of any such citation or notice of appeal.” Whereupon he prayed for the dismissal of appeal at appellant’s costs.”
    On the 14th of August appellant (relator), suggesting that the justice of the peace before whom said cause was tried, making said appeal returnable to the next regular term yet to be held, had issued a notice of appeal unaccompanied by the citation prescribed, and that it was necessary that the transcript be returned to his court to allow the making of the proper citation and service thereof, and that all necessary time therefor should be granted, moved the court for the return of said transcript to said justice’s court to allow proper citation to issue, and for general relief.
    The motion to dismiss the appeal, and that to return the transcript, having been argued and submitted and taken under advisement together, the court, on the 80th of August, made the following ruling:
    “The agreement of counsel dated August 19,1897, the court does not look upon as an appearance or a waiver of any rights by either party. Had the motion to correct the transcript been filed before the motion to dismiss, and within three days after the opening of the court, the demand of appellant would have been granted. As it was, it came too late. All rights are reserved to appellant for an appeal in accordance with law. On the same the minutes show that the motion to send back the transcript was overruled and the appeal dismissed at appellant’s costs. Appellant applied for a rehearing, but his application having been refused, he applied to this court for relief under its supervisory powers, claiming that the action of the District Oourt was illegal and worked a denial of justice. He, in his petition, prays that writs of certiorari and mandamus and such other writs issue from this court as may be necessary to protect his rights, and that there be judgment annulling the ruling and decrees of the District Oourt, and that the District Judge be ordered to place the case on the trial docket for trial regularly as upon an appearance made by the appellees, or in default of this that the District Oourt be ordered to grant further time to have the citation in such manner as may be ordered, the case being considered as properly on appeal suspensively.
    The District Judge in his answer denied the'right of relator to the relief sought. He called the attention of the court to the fact that the judgment had been appealed from suspensively. He declared that the right to appeal was not denied relator, but on the contrary, was specially reserved; that he was not without a remedy in law, and that he could not with any color of reason. charge the presiding judge with denying him the exercise of any of his rights. He stated that the appeal of the relator was dismissed during the August term of the court; that he filed in the last days of the term a motion for a rehearing, which was overruled during the following term of the court, in the month of September; that, in that motion, appellant admitted that the court had properly decided that there was no citation of appeal in the case. He averred that he had refused to perform none of the acts imposed on him by law and had deprived appellant of none of his rights.
   The opinion of the court was delivered by

Nicholls, C. J.

The suspensive appeal taken in the justice’s eourt was returnable at the next regular session of the District Oourt. The bond required for the appeal was given and the transcript filed in due time. The filing of a transcript does not have the effect of cutting absolutely from an appellant the right of requiring that a new citation should be made upon the appellee, if that made was made' defective in any way, or that a citation should be made to issue if the transcript had been filed prior to any citation whatever. We need not examine this case nor discuss the question as to the particular period when such right would be cut off, nor the circumstances under which an appeal could be rightfully dismissed for want of citation or defective citation. The 'right of correction would certaiuly extend, at the least, up to the return day and matters took such a shape in this case before that day arrived as, in our opinion, to withdraw from the appellee the legal power to urge a want of citation. Before the day fixed for the regular law term of the District Court arrived, a special term of that court opened. The transcript in the case of Gary vs. Broussard was already docketed, the transcript having been filed the day before. On the morning of the opening of the special term the counsel of appellant and appellee signed and caused to be filed an argument that the cause should be “ tried” at that special term. The filing of the transcript and the docketing of the case did not have as a result the advancing of the return day, nor as a giving of rights and privileges to the appellee to which he would only have been entitled after the return day had been reached. The case though docketed was not before the court to the extent of [enabling the appellee to file and have passed upon prematurely, exceptions, motions or issues further than this should be done by consent. Unless by consent appellee would be forced to bide his time until the return day had been reached and all legal delays had expired. The parties, if they thought proper, could by agreement among themselves within legal limits control the • case, and such agreements would and should be given effect to by the appellate court, but precisely as made. We are of the opinion that when appellee consented to “ try ” the case at the special term he was bound by his agreement and that he could not, under an agreement to “ try,” seek to dismiss the case before a hearing on the merits. The agreement did not evidence a consent on the part of the appellant that the cause should be merely docketed. It had already been docketed by the clerk, and appellant’s consent thereto was not needed nor called for. Appellee’s consent to “try” the case at the special term which was then on the docket was inconsistent with an attempt on his part to have the appeal dismissed. Had appellee on the 20th of August caused the case to be fixed'for trial such action would have barred a subsequent motion on his part to dismiss the appeal. (Creevy vs. Breedlove, 12 An. 745; White vs. Maguire, 16 An. 338.) A direct agreement: to try the case at the special term would certainly not be less operative in bringing about a similar result. When the parties gave their mutual consent to the trial of the case, neither could, thereafter, of right, recede therefrom. Each acquired rights which the other was bound to respect. Ordinarily a party can not object later to a ,matter to which he has once consented. The consent by appellee to try the case was a waiver or relinquishment of any right which he might have otherwise had to object to the citation in the case. He was, on the face of the record, estopped from making the motion he did, and the court legally should have refused to entertain it. In doing otherwise and dismissing the appeal its action was illegal and injurious. The jurisdiction of the District Court having vested should have been retained. The case not being appeal-able to this court relator was authorized to call upon us for relief under our supervisory powers — he otherwise being without means of redress for the enforcement of a clear legal right.

We see no inconsistency in relator’s acknowledging that the citation which issued in the ease was defective, and his insisting upon rights acquired by him through waiver of such defects.

For the reasons herein assigned, it is ordered that the judgment of the Nineteenth Judicial District Court, dismissing relator’s appeal, be and it is hereby declared null and void and of no effect, and the cause is hereby reinstated on the docket and ordered to be proceeded with according tp law.


text:
    No. 12,553.
    State of Louisiana vs. Edward O’Rourke; P. J. McMahon, Surety.
    The forfeiture of a bond by judgment has always been regarded as a criminal proceeding.
    The amount of the bond forfeited being an amount less than two thousand • dollars, and no appeal from the judgment of forfeiture having been applied for ■within the delay prescribed for an appeal in criminal cases, this court wa$ without authority to entertain jurisdiction.
    The appeal was dismissed.

      On Application to Reinstate the Case: Tile facts are not before the court on which the defendant rested his case, and nothing authorizes us to send for the evidence.
    'The proceedings to fix surety’s liability on an appearance bond are in their nature as in a criminal case.
    The court adheres to the original decision. 46 An. 551; 38 An. 363.
    APPEAL from the Criminal District Court for the Parish of Orleans. Moise, J.

      M. J. Cunningham, Attorney General, for Plaintiff, Appellee.

      Moore & Dufour, P. W. Roussel and E. Evariste Moise for P. J. McMahon, Surety, Appellant.
    Argued and submitted June 19, 1897.
    Opinion handed down June 22, 1897.
    Case reinstated by consent June 28, 1897.
    Argued and submitted November 20, 1897.
    Opinion handed down November 29, 1897.
   The opinion of the court was delivered by

Breaux, J.

An information was filed in December, 1896, against Edward O’Rourke, charging him in one count with shooting with intent to murder, and in another count with inflicting a wound less than mayhem.

The accused furnished bond for his appearance on the 14th day of December, 1896. The appellant signed as surety.

On the 23d of December, 1896, the accused was arraigned, pleaded not guilty, and was discharged on the bond he had already furnished. His case was fixed for trial on the 21st day of January, 1897; failing to appear on that day, the prosecuting officer moved for the forfeiture of the bond. After he had offered in evidence the bond and other documents the court ordered judgment to be entered against him for the amount of the bond.

, The surety on that day was duly notified of the forfeiture of the bond-.

Motion was made for a devolutive appeal from this judgment on the 14th day of May, 1897, and on the next day an appeal was granted.

The Attorney General, alleging that the judgment of forfeiture was rendered on the 21st day of January, 1897, and that the appeal from the judgment was taken on May 14, 1897, moves to dismiss the appeal on the ground that appeals from judgments of forfeiture of bonds in criminal cases must be taken in ten days.

The foregoing is a statement of the case.

The appellant sought to avail himself of the delays within which one may take a devolutive appeal. The forfeiture of a bond in a criminal case has always been regarded as a criminal proceeding.

The following has a direct bearing upon the point and we therefore quote liberally from the text:

As in the ease before us a notice was issued by the clerk stating that, on a certain day, the party to the appearance bond was called, but failed to appear.

“After this notice of the judgment there were various means and reasons, specified in the first and second sections of the act, for which it might be set aside, on application within ten days, and if the party was not possessed of any of these means of relief, or did not resort to them, it has been understood, especially since the allowance of appeals in criminal cases, that he might seek relief within those ten days by a suspensive appeal.” State vs. Cassidy, 7 An. 276.

The following is taken from the syllabus in State vs. Williams, 37 An. 200:

“The forfeiture of an appearance bond is a proceeding in a criminal case, and the appeal from the judgment of forfeiture is not to be tested by the rule applicable to civil action.”

In State vs. Burns, 38 An. 363, the appeal was from the judgment of forfeiture rendered by the District Court in one of the parishes. It was within the requirement of Act 30, 1878, that motion for appeals in criminal cases be filed in the courts other than those of the First Judicial District during the term at which sentence was imposed.

The court held the proceeding to forfeit is criminal in its character; and .applied the statute providing for appeals in criminal cases.

“The forfeiture of a bond by judgment has always been regarded as a criminal proceeding.” State vs. Toups, 44 An. 901.

An appeal in matter of the forfeiture of a bond must be taken, as relates to time, within the delay provided by statutes for appeals in' criminal cases.

In all criminal cases in which appeals are allowable in the courts of the first judicial district under the Constitution, the motion must' be filed within ten days after the sentence shall have been rendered.” Act 30 of 1878.

The forfeiture here is part of the proceedings of a criminal case.-

The statute provides that the appeal shall be taken within a deláy of ten days, and no provision was made for a devolutive appeal.

On the contrary, the statute reads: “ No appeal shall be granted’ in such cases ” after the time for an appeal, as stated, has elapsed.”'

We repeat that which we said in State vs. Alexander, 46 An. 550, if a devolutive appeal lies, that is if the surety on the bond has a right to a devolutive appeal, this court, in view of the amount involved, is without jurisdiction.

Jurisdiction has been entertained in such cases, when timely brought up on appeal, only because they were in character criminal. The offence charged was within the jurisdiction of this court; it was,, in consequence held, that questions regarding the bond and its forfeiture were within this court’s jurisdiction. State vs. Williams, 37 An. 200; State vs. Harrison, 38 An. 299; State vs. Burns, 38 An. 363; State vs. Balize, 38 An. 543; State vs. Hendricks, 38 An. 719; State vs. Cornig, 42 An. 410.

If any effect were given to the order of appeal, it would have to-be given to it as a devolutive appeal, a civil remedy.

It is manifest, the amount involved being less than $2000, de--volntive appeal does not lie.

We can not entertain jurisdiction; the appeal is dismissed.

Oh Application to Reinstate the Case.

In deference to the written request of the Attorney General, we-have reconsidered the points decided heretofore. The request was-prompted by a desire that the counsel for the defendant should be-heard, as- they had not presented their views orally to the court,owing to their misunderstanding in regard to a continuance that had; been granted. We did not discover when the case was reargued that there was error in our opinion.

With respect to the facts recited in our original opinion, we think that in addition to the record they are amply supported by defendant’s statement of his case.

We copy from the brief:

“ This is an appeal from the judgment forfeiting a bail bond.”

In argument throughout reasons were urged for its reversal.

Upon that state of facts we determined that it came within the grasp of the case of State vs. Alexander, 46 An. 551, and other decisions cited in the opinion, in deciding the cited case.

There are papers in the transcript which are not before us so that notice may be taken of them. The evidence is not contained in the' transcript. The court can not notice issues passed upon subsequent to the appeal. In these proceedings nothing could be done save to-dismiss the appeal, as it was dismissed.

We adhere to our original decision.