author: Nicholls, C. J. Monroe, J.

text:
    No. 12,861.
    State of Louisiana vs. Citizens' Bank of Louisiana.
    Syllabus.
    1. A license Is a tax, but It is a tax on callings and occupations and not on property. License taxation is governed by rules entirely different from those which control property taxation.
    2. Decisions holding a certain corporation exempt from taxation upon its capital are not res judicata on an issue as to whether it be liable to a license tax.
    3. A provision in the charter of a bank exempting its “capital” from taxation does not cover an exemption from “license” taxation. The grant of a charter to a corporation authorizing it to carry on a certain business during the term of its charter does not import permission to do so without contributing to the support of the government in like manner with natural persons pursuing the same business. (City of New Orleans vs. State National Bank, 34th Ann., 802.)
    4. The only exemption from taxation granted to the Citizen’s Bank by its charter was an exemption from taxation upon its “capital”. There is no impairment of that right in requiring it to pay a license.
    5. Reference in Act No. 150 of 1890 to the capital and surplus of banks is simply for the purpose of classifying the banks and graduating license under such classification. No tax is imposed on capital by the act.'
    On Reheaking.
    1. Where a charter is granted to a corporation, under one Constitution, and is extended, by act of the Legislature, under another, and it happens that, when the.time arrives for such extension to take effect, there is a third Constitution in force, the act in question can confer no additional privileges not authorized by the Constitution in force at the time of its adoption, and is regulated, with respect to those granted by it, by the Constitution in force when it takes effect.
    2. Whatever may have been the rights and obligations of a corporation existing prior to the adoption of the Constitution of 1879, its acceptance, subject to the conditions imposed by Articles 234 and 237 of an act of the Legislature , passed for its benefit, brought it under the dominion of that Constitution, by which its contract rights and obligations were thereafter to be measured.
    3. Where no federal question is involved, but merely the construction of the laws of this State, and of its own decisions and constructions of the same, this court feels bound, under the established jurisprudence, both State and Federal, to determine the issues presented, without being controlled in Its conclusion by the decisions of any other court.
    APPEAL from the Civil District Court, Parish of Orleans.— Ellis, J.

      E. Howard McCaleb, Jr., for Plaintiff, Appellant.

      Henry Denis and Branch K. Miller (Saunders & Gurley, of Counsel), for Defendant, Appellee.
    The opinion of. the court, on the original hearing, was delivered by Nicholls, C. J.
    On the rehearing by Monroe, J.
    (Removed to the Supreme Court of the United States by writ of error).
   The opinion of the court was delivered by

Nicholls, C. J.

On the 4th of June, 1894, on motion of C. H. Parker, tax collector of the First District, of the City of New Orleans, through Edwin Ii. McCaleb, Jr., attorney-at-law, appointed by the Governor of the State of Louisiana to. aid the tax collector of the Parish of Orleans in collecting the licenses for this parish, suggesting that 'the Citizens’ Bank of Louisiana was, and had been, conducting the business of banking, at 1,34 Gravier street, without any license from the State of Louisiana, and that its declared or nominal capital or surplus exceeds the sum of two millions of dollars, and further suggesting that all persons, who conduct business without obtaining a license from the State, before the first day of March, 1894, are declared delinquent, and suggesting to the court there was due by defendant to the State of Louisiana the sum of twenty-four hundred dollars, with two per cen,t. per month interest from March 1st, 1894, and as attorney’s fees, -five per cent, on said amount and interest and costs as a license for the year 1894; it was ordered by the Civil District Court for the Parish of Orleans, that the Citizens’ Bank show cause why it should, not pay twenty-four hundred dollars to the State of Louisiana for license for 'the privilege of conducting the above mentioned business during the year 1894, with two percent.. interest per month from March 1st, 1894, and as attorney’s fees, five per cent-:' on said amount, .and interest and costs, or be enjoined or restrained from the carrying on of said business until the said license, interest, five per cent, attorney’s fees thereon, and costs, be paid, and that the Citizens’ Bank be required to show, further, why this rule should not be made absolute, and judgment rendered in favor of the State of Louisiana for twenty-four hundred dollars, with interest, as set forth, five-per cent, thereon for attorney’s fees, and costs, and said injunction be perpetuated.

The Citizens’ Bank answered, pleading the general issue.

It then averred: That by virtue of the provisions of its charter, and especially by Section 4 of the Act of the Legislature of 1836, amending the said charter, the capital of the bank was exempted from any tax laid by the State, or by any parish under the authority of the State, during the continuance of said charter.

That the said exemption was granted by the State for á valuable consideration fully stated in the charter, which constituted a contract between the defendant and the State of Louisiana; that the license demanded was a tax upon the capital of defendant, intended to operate upon it in a different form of taxation, but with the same effect as an ordinary tax; that the imposition of the said tax was an impairment of the said contract between defendant and the State of Louisiana; that the law imposing the said license was, therefore, violative of Section 10 of Article 1 of the Constitution of the United States, and of the provisions of the Constitution of the State of Louisiana of 1812, under which the charter of defendant was passed, and of the provisions of the subsequent Constitutions of the State of Louisiana.

Defendant, therefore, pleaded the illegality and unconstitutionality of the said law imposing the license demanded. Defendant further averred that it had been decided and decreed by final judgments in five several cases between defendant and the State of Louisiana 'that the capital of defendant was exempted from all taxes of either the State or municipal authorities; that the said judgments were rendered by courts of competent jurisdiction in the following cases:

First. — By the Supreme Court of Louisiana in No. 7,368, Citizens’ Bank of Louisiana vs. L. Bouny, State Tax Collector (32nd Ann., 239).

Secondly. — By the Civil District Court for the Parish of Orleans, in No. 12,429, Citizens’ Bank of Louisiana vs. Board of Assessors et al.

Thirdly. — By the Civil District Court for the Parish of Orleans, in No. 19,144, Citizens’ Bank of Louisiana vs. Board of Assessors et al.

Fourthly. — By the Civil District Court for the Parish of Orleans, in No. 20,541, Citizens’ Bank of Louisiana vs. Board of Assessors et al.

Fifthly. — By the Supreme Court of the United States, in No. 108, October term, New Orleans et al. vs. Citizens’ Bank of Louisiana.

Defendant averred, that each and every one of the said judgments constituted res judicata of the question of exemption from all taxation of the capital of defendant.

Defendant, therefore, pleaded the exception of res judicata against the demand contained in the rule to show cause, as established, "and decreed in each one of the said causes.

It is therefore prayed that it be excused from answering certain interrogatories propounded to it; that there be judgment in its favor dismissing plaintiff’s demand . The interrogatories here referred to were subsequently answered, by consent, without prejudice to any of the defenses set up by the bank.

The questions and answers were as follows:

“Q. Have you not been conducting and carrying on business during the year 1894, as set forth in the rule taken on you in these proceedings and are you now carrying on said business?
A. Yes.
Q. ' Do not your declared or nominal capital or surplus from said' business exceed the sum stated in said rule?
A. No.
Q. Were not your declared or nominal capital or surplus from said business, during the year 1894, between two million dollars and three million dollars ?
A. No.
Q. Do you not owe your State license for 1894, for conducting or carrying on business, as set forth in said rule with interest bn said sum at the rate of two per cent, per month from March 1st, 1894, five per cent, thereon for attorney’s fees and all the costs of these proceedings ?
A. No.
Q Do you owe any State license for the year 1894? Then, if so, how much do you owe; and for carrying on or conducting that business?
A. No.
Q. Are not all the statements and allegations in the rule taken herein on you, true? If any allegation be untrue or incorrect, set forth the error and correct the same ?
A. During the year 1894, the capital of the bank was three hundred and eighty thousand, two hundred dollars, and the undivided profits were eighty-eight thousand, nine hundred and twenty-nine dollars and twenty-two cents, as per published statement of the 31st of October, 1894.”

On the trial, plaintiff offered in evidence the return made by the Citizens’ Bank to the State Treasurer for the year 1894, a statement showing the declared and nominal capital and surplus of the Citizens’ Bank for the year 1894; also Act No. 19 of 1880, and an extract from the minutes of the Citizens’ Bank of November 5th, 1880, showing an acceptance of the stockholders of that bank of the provisions of said act. The defendant offered in evidence the charter of the Citizens’ Bank and. the various acts of the Legislature amendatory thereof, also the pleadings and judgments in the cases referred to in its pleadings, and set up as res judicata.

The District Court rendered judgment in favor of the defendant, and the State appealed.

Opinion.

The District Court did not pass upon the exception of res judicata, urged by 'the defendant, assigning as its reason “that it did not appear that the issue of an exemption from a license had been presented in any of the cases and judgments relied on to support the plea.”

In State ex rel. Citizens’ Bank vs. Board of Assessors, 48th Ann., 35, this same exception was advanced, but overruled.

Referring to it, we very briefly said: “The cases to which the bank refers in support of the plea involved the furniture, the banking-house property and the shares of stock of the corporation. The property upon which it was attempted to assess taxes in those suits is different from that in the instant suit, and the issues are essentially different.

The property which it is attempting- to relieve from taxation is certain real estate specially mortgaged to the bank to secure the payment of eight hundred and fifty-four shares of the capital stock of the bank.

The bank foreclosed the mortgage and purchased the property “in order to make the debt.” There is much less ground, in this case, for the application of the doctrine of res judicata to the issues raised in it than there was in that just referred to; there the tax resisted, like those resisted in the cases relied on, was, at least, a tax of the same character; that is, a tax upon “property,” while the tax involved in this litigation is one esscntally different; it is a tax, it is true, but one upon callings or occupations, and it is controlled and goverened by rules and principles entirely different from those which bear upon property taraton. (City of New Orleans vs. Louisiana Savings Bank, 31st Ann., 638; Walters vs. Duke, 31st Ann., 671; Parish of Morehouse vs. Brigham, 41st Ann., 667). Articles 203, 206, 207 and 209, of the Constitution of 1879 also disclose this very fullly and clearly (see City vs. Ernst, 35th Ann., 746, and State ex rel. Ernst vs. Assessors, 36th Ann., 347).

The Supreme Court of the United States (in one of the very cases on which defendant relies to sustain its exemption), in emphasized language, recognizes that fact. (New Orleans vs. Citizens’ Bank, 167 U. S., 372).

We see no force in the plea, and it should not be, and it is not now, sustained, but rejected.

The defendant urges that the license tax is substantially one upon its capital. The views expressed by us above indicate our opinion upon this point. The mere reference in the license acts to the) declared or nominal capital or surplus from business or banking institutions is not a tax upon the capital or surplus itself of the different banks, but a mere method of classifying the banks and establishing a graduation of licenses as required by Article 206 of the Constitution. (State of Louisiana vs. Liverpool and London and Globe Insurance Co., 40th Ann., 463; Parish of Morehouse vs. Brigham, 41st Ann., 666).

This court, in City of New Orleans vs. State National Bank, 34th Ann., 892, said: “A provision in the charter of a corporation exempting its stock and real estate from taxation, does not cover an exemption from license taxation. The grant of a charter to a bank, authorizing it to carry on a certain business during the term of its charter, does not import permission to do so without contributing to the support of the government in like manner with natural persons pursuing the same business.”

Reference was made by the court to New Orleans vs. Canal Bank, 32nd Ann., 104; City of New Orleans vs. Peoples’ Bank, 27th Ann., 646, and 32nd Ann., 84, which bear upon the same subject.

Defendant contends that the imposition of a license is a violation of a “contract right” between itself and the State. It says “that by virtue of the provisions of its charter, and especially of Section 4 of the act of the Legislature of 1836, amending its said charter, the capital of defendant is exempted from any tax laid by the State or By any parish under the authority of the Sta.te during the continuance of said charter. That the said exemption was granted by the State for a valuable consideration fully stated in the said charter, which constituted a contract between the defendant and the State of Louisiana. That the license demanded herein is a tax upon the capital of defendant, intended to operate upon it in a different form of taxation, but with the same effect as an ordinary tax. That the imposition of the same is an impairment of the said contract between the defendant and the State of Louisiana. That the law imposing the said license is, therefore, violative of Section 10 of Article 1 of the Constitution of the United States, and of the provisions of the Constitution of the State of Louisiana under which the charter of defendant was passed, and of the provisions of the subsequent constitutions of the State of Louisiana. Defendant, therefore, avers and pleads the illegality and unconstitutionality of the said law -imposing the license herein demanded upon defendant.”

The extent of the exemption granted originally from taxation was from “taxation upon its capital.” It could never have claimed greater or other exemption than that. The law of 1890, the unconstitutionality of which is pleaded, does not pretend to impose, nor does it impose any tax upon the “bank’s capital’’ and, therefore, there could by no possibility be, nor is there, any violation of any contract obligation through that act even should there really be any existing obligation at all between the State and the defendant as to taxation.

We are not called on in this case to enter into any discussion or examination of the general relations between the State and the Bank. We confine ourselves to the subject matter of the license demanded of the bank.

Pretermitting any opinion as to the power of the General Assembly of 1874 by extending the charter of the bank to January, 1911, to extend the exemptions from taxation granted by the charter which expired in April, 1884, we think the acceptance by the bank of the provisions of Act No. 79 of 1880, would have extinguished any right to claim exemption from this license, even, if but for this, the right of such exemption would have existed. In order to enable the bank to make compromises with its mortgage stockholders, the General Assembly of 1880 enacted Act No. 79 of 1880. Section 4 of the act' provided “that this act shall not be binding, or confer any right upon the bank, unless accepted within twelve months from the date of this act, and under the conditions of Articles 234 and 237 of the Constitution, such acceptance to be manifested by the bank in writing, and filed in the office of the Secretary of State.” The defendant can claim no exemption from license taxation under the Constitution of 1890.

Referring, in State ex rel. Citizens’ Bank vs. Board of Assessors, 48th Ann., 39, to the acceptance by the bank of the Act No. 79 of 1880, this court said:

“A written acceptance of the act was filed by the bank with the Secretary of State. * * * That the act was for the benefit of the bank is made certain by the acceptance and the test of the same. Article 234 forbids the altering or 'amending of any charter of an existing corporation for the benefit of such corporation, except upon the condition that such corporation should thereafter hold its charter subject to the provisions of the Constitution of 1879. * * * The acceptance of the benefits, of that act brings the corporation under the provisions of Article 237 of the Constitution. * *
We think the Citizens’ Bank has heretofore obtained all that it is entitled to, the exemption from taxation of its capital proper, and the real estate necessary for the carrying on its legitimate business or purposes.”

The terms of Article 234 of the Constitution of 1879 are broader than they are stated to be in the decision quoted from. That article is as follows:

Article 234. The General Assembly shall not remit the forfeiture of any corporation now existing, nor renew, alter or amend the same, nor pass any renew'al or special law for the benefit of such corporation, except upon the condition that such corporation shall thereafter hold its charter subject to the provisions of this Constitution.

The defendant can claim no exemption from license taxation under the provisions of that Constitution, or of the laws of the State relative to such taxation.

But we do not find that defendant’s liability for a license tax, for the year 1894, comes within the fourth class of paragraph 2 of Section 3 of Act No. 150 of the acts of 1890. It does not, therefore, owe the sum of twenty-four hundred dollars as a license tax for that year.

Its liability comes under the ninth class of said paragraph 2, Section 3 of the Act of 1890, and the amount it owes as license for the year 1894 is four hundred and fifty dollars.

Eor the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and it is now adjudged and decreed that the State of Louisiana do have and recover of the Citizens’ Bank of Louisiana, defendant herein, the sum of four hundred and fifty dollars as a license tax due by the said bank for the year 1894, with two per cent, per month interest thereon from March 1, 1894, until paid, together with costs of both courts.

It is further ordered, etc., that plaintiff do further recover from said bank five per cent upon the amount of this judgment as attorneys’ fees.

Monroe, J., takes no part, the case having been submitted prior to his appointment on this bench.

On Rehearing.

Monroe, J.

The pleadings and facts in this case are set forth in the original opinion, and need not be recapitulated.

The plea of res adjudícala rests upon the proposition that a license tax is a tax upon the capital of the bank, and hence that a judgment declaring such capital exempt from taxation establishes the “thing adjudged,” with respect to the present claim for a license.

Although this question can no longer be considered an open one, we have given the able presentation of it, by the learned counsel for defendant, our serious consideration. We find the authorities cited in the original opinion conclusive upon the subject, however, and 'they are binding upon this court. It may be remarked, in addition, that if exemption of capital, necessarily, or in the contemplation of law makers, carried with it the exemption of the occupation of the owner of the capital, it seems hardly, probable that the Constitutions and laws of this State would, for many years, have contained separate provisions upon those subjects.

In so far as concerns the judgment of the Supreme Court of the United States in the matter of “The State of Louisiana ex rel. Citizens’ Bank vs. Board of Assessors ” taken up by writ of error to this court and reported in 167 U. S., 407, that judgment affirms tho judgment of this court, as reported in 48 Ann., 35, to the effect that “Where the Citizens’ Bank subjects property to its ownership which was mortgaged to secure stock subscriptions, the property is not exempt from taxation, as part of the capital stock of the bank,” and nothing else was decided in that case. In the case entitled “City of New Orleans vs. Citizens’ Bank,’’ 167 U. S., 373, appealed from the Circuit Court of the United 'States, there were three questions presented and decided, viz:

1. The majority of the court, sustaining the plea of res adjudicata, held that the bank is not liable to taxation on its capital stock, or its banking house, or furniture, used for its business, and that it can not be required to pay a tax assessed upon its shares in the hands of its shareholders.

2. It was further held that the bank is liable to taxation on property acquired in foreclosure of mortgages.'

3. It was further decreed that the claim of the bank to the non-liability of its shareholders to taxation should be rejected, and the question left open.

4. And, finally, the court refused to sustain the proposition “that the non-liability of the bank to taxation embraced also immunity from the payment of a license :tax to either the State of Louisiana, or the City of New Orleans,” and held that the question of non-liability for such license tax was not in the case.

It is manifest, then, that, whether the bank is liable for a license tax, was not decided. On the other hand, it was decided that the question of immunity from taxation on capital does not embrace or include the question of immunity from a license tax. Again, the Circuit Court had held that the bank was exempt from taxation on mortgaged property, bought in by it, because the property so acquired became, by virtue of the purchase, a part of its capital stock. But the Supreme Court said: “Evidently it was a confusion of thought on this question, which led the court below to hold that the property bought in, in enforcement of the stock mortgages, and held by the bank, was the capital of the bank, and, therefore, not liable to taxation.”

It is said that, even though it be held that exemption from license taxation is not included in the language by which exemption from capital taxation is conferred, the court must, nevertheless, be convinced that it was the intention of the State that exemption from taxation, upon the business, or occupation, of the bank, should be included in the grant, for the reason, that, by the act of 1836, the bank acquired the character of an agency, established by the State of Louisiana for governmental purposes, and that it would be unreasonable to suppose that the State would hamper the operations of its own agent by requiring it to pay a tax; and that such intention becomes all the more improbable in view of the fact that the capital of the bank was expressly exempted from taxation during the continuance of its charter, and the exemption thus accorded has been held and construed by the various departments of the State government, from 1836 up to within a few years past, to include exemption from taxation such as is now sought to be imposed.

There is nothing in the pleadings upon the subject of the construction placed by the officers of the State upon the exemption granted to the bank; nor was any evidence offered bearing upon that subject, save the pleadings and judgments in the suits relied on to sustain the plea of res adjudicata, and they show, conclusively, that from 1878, up to the present time, the officers charged with the assessment and collection of taxes, have denied the exemption claimed by the bank on its capital, and have endeavored to compel it to pay taxes, and that, in some respects, the claim of the bank has been sustained, whilst, in other respects, it has not been sustained. Thus, the claim that it was exempt, with respect to mortgaged property bought in by it, appears to have been as urgently pressed as any other part of its demand, and yet the Supreme Court, in the case already cited (167 U. S.) says, upon the subject: “The record affirmatively shows that for many “years after the charter was adopted, the property acquired by the “ bank under foreclosure of mortgage was taxed like property of other “citizens, and the tax was voluntarily paid. ‘Indeed’ (says the “ court) ‘it was stated in the discussion at bar, and not denied, that “ the supposed right of the bank to exemption on property acquired by “it, under foreclosure of mortgage, was for the first time asserted “ in this suit, and that for the long series of years which had elapsed “ since the organization of the bank, that character of property was “regularly taxed, and the tax paid.’” And the judgment of the Circuit Court, decreeing such property exempt, was accordingly reversed. Eor' the purposes of the present case, therefore, we shall be unable to consider the effect of any supposed construction of thedaw under which the exemption is here claimed, or of any acquiescence in such contraction by the officers charged with the execution of the law. This suit was brought in 1894, for the collection of the license for the current year, amounting, as appears from the original opinion,' to $450.00. We should not, therefore, be called upon, even if the pleadings and evidence were other than they are, to deal with the question of giving a retrospective operation to a new and suddenly conceived construction of a law which had long been otherwise interpreted, and of thereby requiring the payment of a large sum for licenses, for years during which no one believed them to be due and no demand was made for their collection. When such a case is presented, it will be considered upon its merits, as was the case of the “State vs. The Comptoir National, etc., 51 Ann., 1272, which has been invoked. That case can not, however, be considered authority for the proposition that the State can be permanently estopped from enforcing the collection of its taxes by the previous acquiescence of its officers in a misconstruction of the law. Upon the contrary, express reference is made in the opinion to the fact that the future taxation of the defendant had been provided for, and it was found, moreover, that the statute under which the State claimed was inapplicable to the case.

Returning to the question; what should be presumed to have been the intention of the State, in view of the relations established between it and the bank by the act of 1836, and by other acts, subsequently passed? The main proposition advanced by counsel for the defendant relates to a supposed general understanding, in 1836, and is fairly summed up in the following statement, in one of their briefs:

“The idea that prevailed at the time the bank was established was that the enterprise was, in a certain sense, a State, rather than a private enterprise; that the carrying on of the business designed to be ■ carried on, was an inestimable boon to the State, not merely sanctioned by the State, but in which the State herself engaged. - It was inconsistent with the fundamental object of such an enterprise, the administration of which was controlled by the State, that it should be subjected to any license tax.”

There is no evidence before us as to the condition of public sentiment in 1836 concerning the enormous aid extended by the State to what all writers and jurists would concur in holding’ to be, and to have been, a private corporation. It is not doing violence to probabilities, however, to suppose that there were some persons, not connected. with the bank, who doubted the propriety of using the credit of the State in that way. At all events, the experience of the State, in aiding property banks, and other enterprises, would seem not to have been either pleasant or profitable, as may be inferred from the character of some of the provisions incorporated in the Constitutions adopted since that time. Thus, the Constitution of 1845, prohibited the State from subscribing to the stock of any corporation, and prohibited the creation, renewal, or extension of any corporate body with banking or discounting privileges, and restricted the power of the State, with reference to contracting debt, by provisions which were, at once, stringent and peculiar (Arts. 121, 122, 114). In the Constitution of 1852, there was some relaxation with regard to aiding corporations for works of public improvement, but those possessing banking or discounting privileges were especially excluded (Art. 109). And the Constitution of 1864 contained a similar exclusion (Art. 112). The Constitution of 1879 contained a number of provisions intended to guard the State against the encroachment of corporations, and, among others, one, prohibiting the loaning, pledging, or granting to them, of the “funds, property, or things of value of the State, or of any political corporation thereof” -(Art. 59). And a provision identical in language is to be found in the present Constitution (Art. 58). When we turn, for information, as to the relations between the Citizens’ Bank and the State, to the legislation upon the subject, we find a volume, beginning with the act of incorporation, in 1833, and extending over a period of nearly fifty years. The bank was started as a purely private venture, planned upon a large scale and contemplating the use of twelve millions of dollars in a variety of enterprises which seemed calculated to develop 'the resources of the State, and to put money into the pockets of its originators. There was no eleemosynary feature about it, and nothing that would conceal from an ordinary business man 'the fact that the resourses of the State were to be developed for no other immediate purpose than to promote the prosperity of the Citizens’ Bank and its incorporators. Even the mass of individuals comprising the public at large seemed to Lave been of that opinion, and the invitations extended to them to contribute were not accepted. Three years later, in 1836, therefore, the General Assembly was again appealed to, and another act was passed, the first section of which reads as follows:

“Be it enacted, etc., That, in order to facilitate the Citizens’ Bank of Louisiana in the negotiation of the loan of twelve millions of dollars, authorized by the act of incorporation of the first of April, 1833, the faith of the State is hereby pledged for the security of the said sum of twelve million dollars, or such part thereof as may be required by said bank.” This section is followed by others, establishing certain relations between the bank and the State, and the act itself was followed by numerous acts, the titles of which are indiees of the disasters which resulted from that relation. Within less than six years, the bank had obtained over six millions of dollars upon bonds furnished by the State; its entire scheme of development had been broken down; and its charter had been forfeited by judgment of court. Since then, and for nearly sixty years past, the Legislature and the courts have been afforded occupation in dealing with the wreck.
Section 3 of Act 92 of 1843, being “An Act to Facilitate the Liquidation of the Property Banks, Chartered by this State” reads: “Be it further enacted, etc., That the assets of the Consolidated Bank of the Planters of Louisiana and those of the Citizens’ Bank of Louisiana, are, and shall remain in the possession and under the exclusive management of the State of Louisiana until final payment, by each of them, of all the State bonds issued in their favor.”

In 1852, an Act was passed entitled “An Act for the relief of the Citizens’ Bank of Louisiana’’, being No. 141, the preamble to which Teads as follows: “Whereas, the State of Louisiana is now responsible for bonds issued in favor of the Citizens’ Bank of Louisiana for a sum exceeding six millions of dollars, together with accruing interest; and, whereas, the present condition- of said bank is such as to expose the State to loss from the inability of said bank to meet the payment of said bonds and interest, if the liquidation of the bank be continued on the system now established by law. And whereas, the managers appointed by the State for said bank have represented that the stockholders will be enabled to secure thea State from said risk of loss if they be restored to the control and management of the affairs of said bank, with the rights, privileges and immunities possessed by said bank at the date of the decree of forfeiture, rendered against it in the First District Court of New Orleans, now the Fifth District Court of New Orleans, on the eighteenth day of October, 1842”.

And the Act then vacates the forfeiture and restores the administration of the affairs of the bank to the stockholders. In 1853, another act was passed (No. 246) whereby, and for the purpose of enabling the bank to raise a million of dollars, as a working capital, it was authorized to convert ten thousand shares of its mortgage stock into cash stock, and the method of voting the stock was so changed as to give 'to the cash stock holders a larger voice in the directory, and' probably the control of the bank.

Again, after some intervening legislation, an act was passed, in 1874, whereby the charter of the bank was extended, from April 1, 1884, the date at which it would otherwise have expired, to January 1, 1911, and the bank was authorized, with the consent of the holders.' to extend the bonds, which had been issued to it by the State, for twenty-five years. And, finally, in 1880, still another act was passed (No. 79) authorizing the bank, with the consent of 'the bond holders, to compromise with the mortgage stock holders, and thus disengage, and disentangle, its banking department from its mortgage stock department. And this last act was accepted by the bank, November 6, 1880, agreeably to its terms, and under the conditions prescribed by Articles 234 and 237 of the Constitution of 1879, which read as follows:

Article 234. “The General Assembly shall not remit the charter of any corporation now existing, n-or renew, alter, or amend 'the same, nor pass any general or special law for the benefit of such corporation, except upon the condition that such corporation shall thereafter hold its charter subject to the provisions of 'this Constitution.”

Article 237. “No corporation shall engage in any business other than that expressly authorized in its charter, or incidental thereto, nor shall it take or hold any real estate for a longer period than ten years, except what is necessary and proper for its own legitimate business and purposes.”

Let us concede now, that the bank, as organized under the Act of 1836, is to be regarded as, in some sense, a governmental agency, for the carrying out, with the co-operation of the State, of the scheme of public benefaction proposed by jts organizers. We know that within six years from that time the whole scheme had disastrously failed, and that the State stood to pay six millions of its bonds, upon which tlie bank had realized the money, unless the amount could be made out of the assets of the bank, whose charter had, in the meanwhile, been forfeited by judicial decree. From that time to this, the State has been endeavoring to protect itself against loss, without inflicting hardship on the subscribers to the mortgage stock, or injustice on the creditors of the bank; whilst a certain class of the stock holders of the bank, to-wit, those who were able to contribute cash, as provided by the Act of 1853, have been endeavoring to save something for themselves. The efforts of the State have not been altogether successful, as the jurisprudence of this court shows. The cash stockholders of the bank, upon the other hand, have cast off the burden of the mortgage stock department, (which was to have developed the agricultural, etc., etc., resources of the State), and are operating a bank for their own benefit, which is an ordinary bank in everything except the exemptions which it claims, and which were granted to a different institution. And it is on behalf of the bank, so conducted, and not of the mortgage stockholders, that said claims are made.

Conceding, therefore, that the relations between the bank and the State, at one time, justified the exemption which is set up in this ease (although upon authority and precedent, the exemption from taxation of the capital did not carry with it the exemption of the occupation), the reason for such exemption has long since passed. away, and the original grant has long since expired.

In this situation, the following language used by this court in another case, may properly be applied:

“Of one thing we are assured, that the xolaintiff company has no right to consider itself aggrieved by our decision. The privileges claimed by it are mere incidents of a burthen said to have been imposed. They are not claimed as independent rights, but merely to enable it to discharge an onerous duty. Relieved, as she now is, of this duty, every claim of incidental right vanishes.”

N. O. & Carrollton R. R. Co. vs. City of New Orleans, 34 A., 444.

But there are still other reasons why the exemption claimed cannot be allowed. The Act of 1814, in so far as it extended the charter of the bank, from 1884 to 1911, was to take effect only in 1884; from which we deduce; first, that the extension thus granted could add nothing not authorized by the Constitution of 1868, under.the dominion of which the Act was passed, and which required the payment of a license; second, that the grant, to take effect in 1884, became subject tii the Constitution adopted in 1879, which also required, or authorized, the Legislature to require, the payment of the license. Gosselin vs. Gosselin, 7 N. S., 470; Mayor vs. Ripley, 2 La., 345. But, even if this were not so, the acceptance by the bank of the Act No. 79 of 1880, specifically, and in terms, subjected it to the Constitution of 1879, and thereby placed it out of the power of the Legislature to exempt it from the payment of the license imposed on other institutions of the same class. And neither the Supreme Court of the United States, nor this court, nor any other court, so far as we are informed, has ever decided to the contrary. The decision of the Supreme Court of the United States, to which we have been referred, did not affect the question here presented, because the issue as to the liability of the bank for a license was not before it, and it was so declared in the opinion and decree. Nor has the question of “license” ever been presented to this court. But, in the case of State ex rel. Citizens’ Bank vs. Board of Assessors, 48th Ann., 35, where the question to be determined was whether the bank was liable to taxation on mortgaged property bought in by it, it was distinctly decided, upon the application for a rehearing, that, by its acceptance of the Act of 1880, the bank brought itself under the provisions of the Constitution of 1879, Article 237, which prohibited corporations from holding real estate longer than ten years, etc.

Referring to the Act in question, the court said:

“That the Act was for the benefit of the corporation is made certain by the acceptance of the benefit of the Act, and the text of the same. Article 234 forbids the amending, or the altering of the charter of an existing corporation for the benefit of such corporation, except upon the condition that such corporation shall thereafter hold its charter subject to the provisions of the Constituton of 1879. Article 237, which the bank accepted, as governing its charter, provides that “no corporation shall *' * *” etc. The acceptance of the benefits of the Act bring this corporation under the provisions of the above article * * *. To hold that the property purchased is part of the banking capital would, in effect, be to repudiate this article of the Constitution, and to nullify the bank’s acceptance of the same.”

The acceptance of the bank, which is in the record, after a preamble, reciting the meeting of the stockholders, and-the vote cast, leads: “Therefore, resolved: That the .Directors of the Citizens’ Bank of Louisiana do hereby accept the aforesaid Act No. 79, and the Cashier is hereby instructed to file a certified copy of this preamble and resolution forthwith in the office of the Secretary of State, in accordance with, and as required by Article 4 of the said Act.”

The Secretary of State certifies that it was filed in his office on November 6, 1880.

Article No. 4 of the Act, to which the acceptance refers, reads:

“Further, that this Act shall not be binding, or confer any right upon the bank, unless accepted within twelve months from the date of this Act; and under the conditions prescribed in Articles 234 and 237 of the Constitution, such acceptance to be manifested by the bank in writing, and filed in the office of the Secretary of State.”

Not only does Article 234 of the Constitution prohibit the remission of the forfeiture, and the renewal, altering and amending of the charter of an existing' corporation, save upon the condition that such corporation shall “thereafter hold its charter subject to the provisions of this Constitution,” but it prohibits the passage of “any general or special law for the benefit of such corporation,” save upon the conditions mentioned.”

It seems impossible, therefore, successfully, to deny that the bank accepted the Act of 1880, and thereby deliberately entered izzto a contract with the State, under the Constitution of 1879; and equally impossible to deny that this court has so decided.

Now, whether the bank did, or did not, accept the Act of 1880; and whether or not this court has so decided; and if it did accept, in what manner the Constitution and laws of this State apply to the condition resulting therefrom, are not federal questions, but are questions arising under the Constitution and laws of this State, which this court, always actiizg with the greatest respect for, and under the established jurisprudence of, the higher tribunal, wihose authority has been invoked, feels bound to determine for itself. Bisland vs. Provosty, 14 A., 174; Bucher vs. Cheshire R. Co., 125 U. S., 555; First National Bank vs. Chehalis Co., 166 U. S., 440; Nobles vs. Georgia, 168 U. S., 398.

Finding no error in the original decree rendered herein, it is ordered, adjudged and decreed that it be re-instated, and now made the judgment of this court.

Watkins, J., concurring, handed down a separate opinion.

Breaux, J., and Blanchard, J., handed down separate dissenting opinions.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 13,088.
    Sigmund Mendelsohn vs. Peter Blaise.
    Syllabus.
    1. Defendant. One who has put another in a position which he should not have been put is cstopi^ed from recalling the transfer to the prejudice of third persons.
    2. The holder acquired the pledge in good faith and for valuable consideration from one capable of transferring it. The pledge is binding.
    3. Intervenor. Although the intervenor is, equally with the pledgee, an inno* cent third person, his right is subordinate to the pledgee's who acquired a mortgage first in rank. Qui prior est tempore potior est jure.

    4. Injury. One having a general right or judicial mortgage against his debtor must show that the general right or mortgage is impaired because he cannot recover it, in order that he may proceed against the property pledged by the debtor to a third person.
    APPEAL from the Civil District Court, Parish of Orleans — King, ■ J.

      William, 8. Benedict for Plaintiff, Appellee.

      Buck, Walshe <& Buck for Defendant, Appellant.

      George W. Flynn for John Fitzpatrick, Intervenor and Subrogee, Appellant.
   The opinion of the court was delivered by

Breaux, J.

This suit arises (from the fact that the defendant issued a number of notes, secured by mortgage, amounting in all to twelve thousand dolllars ($12,000), which he placed in the hands of Louis E. Grevenig, seeking thereby to shield them from the claims of his creditors. Mendelsohn, plaintiff and holder of these notes, representing the firms of Elias Block & Sons and Melialovitch, Fetcher & Company, sued out the writs of- seizure and sale against the defendant, one on a note for six thousand dollars ($6,000), and the other on a note for two thousand dollars ($2,000).

The defendant enjoined the execution of the writ in each suit on the same grounds. The issues here are tried on the six thousand dollar ($6,000) note.

The grounds of injunction were that the notes had been issued without consideration and that the. mortgage with which they were identified and secured was equally without consideration and, therefore, null and void; that he (defendant) entrusted these notes, with others, to Grevenig for safe keeping and he (Grevenig) afterwards wrongfully refused to return them. He alleges that he did not know, and therefore could not allege, in what manner or for what consideration, if any, and from whom plaintiff got and acquired the notes sued on by him. He represents that he believes that plaintiff received these notes from Grevenig, without consideration, or in satisfaction of a pre-existing debt in amount less than their face value. He also alleges that whether or not any consideration was given by the holder, Mendelsohn, he took them long after maturity (whether in good or bad faith), and subject to all the defences which he, the maker (Blaise), has against Grevenig, and that the mortgage by which they were secured as to their payment was on grounds just stated equally as null and void.

Mendelsohn, answering the petition for an injunction, pleads the general denial and sets out that he holds the note in good faith for value and that it is not, as against him, as holder, subject to any equity. He claims damages and prays for the dissolution of the writ of injunction.

John Fitzpatrick, subrogated to the rights of P. A. Bacas, a judgment creditor of Peter Blaise and others, intervened and averred that the note sued on and the mortgage security were simulations and void; that the mortgagee was a mere nominal party to the act; that the note was entrusted to Grevenig for safe keeping; and that plaintiff came into possession of it after maturity and subject to all equities; and that same is. true of the mortgage which plaintiff claims to hold as mortgagee.

As relates to the defendant, Blaise, the record discloses that at the time he executed the mortgage he received no consideration therefor and that the notes remained in the hands of the notary for some weeks; that originally Blaise, the maker of the notes and mortgage, intended to raise money, which he greatly needed at the time, by negotiating them. But afterwards, apprehending a writ of attachment, he handed twelve thousand dollars ($12,000) in cash, (the.face value of all the notes) to Grevenig and appeared before the notary public who had prepared the act of mortgage and in whose possession the notes were and went through the form of receiving back the amount he had handed to Grevenig and of handing the notes to him (Grevenig) as if he had paid for them in cash. The act was a paper mask, a shadow of title to which they, defendant and Grevenig, endeavored to give the appearance of reality.

In the course of time, Grevenig transferred the notes as his own to plaintiff as security. He entirely broke faith with the defendant. The evidence shows that, in accepting these securities, plaintiff acted under the advice of an attorney. The mortgage transferred by Blaise to Grevenig was executed in October, 1895, as was also the note. The transfer of the note and mortgage was made by Grevenig to plaintiff, Mendelsohn, in May, 1897. The payment and subrogation to Fitzpatrick was made in 1898. The judgment to which he was subrogated was pronounced in March, 1896.

. On the trial of the case, he, as a witness, claimed them as his own, and attempted to make out a case of ownership in himself. The evidence abundantly shows that this was not in accordance with the facts, and that Blaise, the defendant, who was in a financially embarrassed condition, had placed them in his hands as a protection against his creditors.

The judgment is against Peter Blaise, plaintiff in injunction, and in favor of Mendelsohn, dissolving the writ of injunction. The judgment as relates to the intervention is in favor of John Fitzpatrick and against the property under seizure to the extent that his judicial mortgage shall take' rank after the payment of the amounts due plaintiff in injunction. The court refused to confirm the default against Grevenig, who was a party and against whom a default had been entered.

The intervenor prosecutes a suspensive appeal from the judgment of the District Court and the defendant a devolutive appeal.

The holder of paper taken by him after maturity and consequently dishonored, may yet be entitled to protection from the demand of the maker, if hi3 (the maker’s) demand is against good conscience. The act whereby defendant sought to shield these notes and 'the mortgage from the suit of his creditors is one condemned by express provision of law. Simulated transfers are always condemned, when made with a view of gaining- an undue advantage. The one by whom the transfer is made is not at liberty to plead its illegality and simulation, lie cannot come against his own deed. Nemo contra factum suum venire potest. The courts will not maintain acts done in “contravention of the spirit and intent of the law, and they refuse to furnish the machinery of Justice for the investigation of disputes originating in the violation of express or implied public ordinances”. The court will not lend its aid to such cases, but will leave the parties where their own conduct has placed them. Cross on Pleadings, p. 82, citing a number of decisions in support -of the text.

The property of the debtor is a pledge to his creditors, not to be disposed of save in due course of business. A vendor, seeking to deprive creditors of their general privilege on his property, cannot prove that he did not receive the price, to the prejudice of third persons who bought the property.

The plaintiff, holder of the securities, so far as the record discloses, knew nothing of the transfer made by the defendant to his transferee., lie stands before the court as holder for full value. It follows that against his title defendant’s testimony cannot-be heard to prove that, previous to becoming the owner, he had trusted the transferee and had been imposed upon and deceived by him. “When the debtor’s fraudulent vendee sells to a second purchaser, -the latter, if in good faith will hold the property,” aliter, if in bad faith.' Hiriart vs. Roger, 13th La., 126. The defendant, as between him and the plaintiff, must be left where he has chosen to place himself. He has no one to blame but himself.

At this point we take up the intervenor’s demand, presenting a different issue entirely. It is contended on his part that he is entitled to recover the amount of his claim. •

While it is true' that he is an innocent third person, plaintiff.is equally a third person. Each represents claims which are entitled to recognition.

Plaintiff, Mendelsohn, received the securities in pledge in the due course of business. He trusted his transferror, Grevenig, because of this pledge. The mortgage he holds is prior in date. He, plaintiff, acquired the right to recover this amount against the defendant, despite the opposition of the intervenor.

He, the intervenor, is without right to defeat the collection of a claim thus acquired.

In Gravier’s Curator vs. Carraby’s Executor, 17 La., 127, the court said (relative to contracts without a cause or with an unlawful one), “The law gives no action to enforce them, whoever may demand it, unless it be in the case of innocent holders of the evidence of such contracts in a commercial form.”

Again, intervenor has not shown prejudice to his rights. It does not appear that defendant, Blaise, is insolvent to such an extent that he, the intervenor, will lose any part of his claim. There is evidence of record going to show that the property seized is worth more than the amount of plaintiff’s claim. This property may be enough to pay both claims. We are inclined to the opinion that, to sustain the intervention, it should appear of record that there is not enough property subject to these claims to pay both. If there is property sufficient to pay both plaintiff and interventor, the question presented for our decision loses all importance.

Whilst the evidence shows that the conveyance by Blaise to Grevenig was a simulation, it also shows a real contract between the parties (i.e. between Grevenig and plaintiff, Mendelsohn), in the form of a sale and possession of the plaintiff. Under these circumstances, the law requires the creditors to resort to a revocatory action or to a demand to have it decreed a simulation. Kirkland vs. N. O. Gaslight & Banking Co., 1 A., 899; Weld vs. Peters, 1 A., 432; Lindeman vs. Theobalds, 2 A., 913.

Defendant cites case of Goodwin vs. Naustadtl, 47 A., 841. There were two cases between these parties. We have given them a careful reading. There is a marked difference between them and the case here. The issue arose between a mother-in-law, transferror, and her son-in-law, transferee, of a simulated title. In the first suit in which simulation was pleaded the plea was not sustained; in the second suit, there were third persons interested and the defendant was made to pay a consideration which he denied was due. In the case now before us for decision, the defendant is held bound by his. solemn declaration that he was indebted to the mortgagee, a different issue than that decided in the cited case.

The principles of the law governing this ease, the court said in Stewart vs. Newton, 12 A., 622, are “set out in the Code”. “They “ give creditors who have obtained a pledge in good faith a right to “ hold the pledge against one who has put his property in the hands of any one.” A principle applying in the case before us for decision.

The judgment is therefore affirmed at appellant’s costs.

Rehearing refused.


author: Monroe, J.

text:
    No. 13,385.
    James Dixon vs. Pittsburg and Gulf Lumber Company.
    Syllabus.
    It is tbe duty of tbe employer to select and retain servants who are fitted and competent for the service, and to furnish sufficient appliances and machinery, or other means, by which it is to be performed, and to keep them in repair and order. The liability of the employer is the same whether he totally fails to provide persons to perform a duty he owes to his servants, or provides persons who are incompetent and unskilful.
    APPEAL from the First Judicial District, Parish of Caddo.— Land, J.

      Taliaferro Alexander and George Whitfield Jack for Plaintiff, Appellee.

      Wise & Herndon for Defendant, Appellant.
   The opinion of the court was delivered by

Monroe, J.

Plaintiff claims $5,000.00 as damages for personal injuries alleged to have been sustained through the negligence of the defendant, by whom he was employed. Defendant denies the negligence imputed to it, and alleges that if plaintiff’s injuries are the results of negligence, it was that of himself and a fellow servant. There was a verdict and judgment for the plaintiff in the sum of $2,500.00 and defendant has appealed.

The ease as we find it, from the evidence in the record, is as follows:

W. K Henderson, W. N. Morrison, and probably some other persons, not named, organized the defendant company, the two gentlemen named being the principal, if not the only stockholders and occupying the positions of president and superintendent, respectively. In February and March, 1898, they established a saw-mill at Vivian, some distance out from Shreveport. The boiler and engine set up by them seem to have been second-hand, and were purchased, or otherwise acquired, from different persons. No one knew how old the boiler was, though it is said to have been made sound by patching; and the nearest that we are able to come to the age of the engine is from the testimony of Morrison to the effect that .he knew it to have been in operation in 1889, but how long before he was unable to say. When the mill v/as first put up, a fourteen-inch belt was used for the main driving wheel, but, shortly afterwards, a wider belt was obtained, and it became necessary to provide aii “idler” of corresponding width, in place of the one which had been in use in connection with the narrower belt. An “idler,” otherwise called a “tightener,” is a pulley on the end of a hinged or swinging shaft, the function of which, in this case, was to bear down on the main belt so as to control the slack and prevent the belt from unduly oscilating or flapping, and possibly, in that way, to conserve the power. The defendant had no pulley, at the time, that was suitable for the purpose, and its president, who is engaged in the mercantile and machinery business in Shreveport, sent, from his establishment, a couple of ten-inch wooden pulleys, made in sections and bolted or riveted together, which he had on hand, instead of the twenty-inch iron pulley which was obtained after the accident out of which this suit arose. Morrison, who had charge of 'the mill, however, stated, at the time, to several persons, and stated to the plaintiff, either then or afterwards, that the wooden pulley was put in temporarily and would be replaced by one better suited to the work. The plaintiff was employed, not a great while after the mill started, as a sawyer, and his duty was to handle the logs and to regulate the saws in their work of converting the logs into lumber. In the discharge of this duty, he occupied a position on a platform near the saws, and was elevated above the engine and out of sight of it. Near him was a rope which came through the floor of the platform, by pulling- which it was supposed that he would be able to check or stop the engine. Under what circumstances he was expected to make use of this rope does not appear clearly, but it is quite certain that it was put there to be used by him. Some time in October, 1898, Morrison employed one Loveless in the double capacity of fireman and engineer. He testifies that he had known Loveless years ago in Missouri, and that he had employed him in 1885, since which date it does not appear that he had seen anything of him until he put him in charge of the defendant’s engine. The witness states that, when he knew Loveless in Missouri, he was working as a fireman and second engineer, and that he was then sober and industrious, and a capable “fireman.” As against this, Iiardy, a witness with whom Loveless boarded whilst he worked at the mill gives this testimony: *

“Q. — He was not what you would call a regular old sot, all the time drunk ?
“A. — I think he was, every time he' got a chance at it.
“Q. — If he got a chance at it ?
“A. — Yes, sir.
“Q. — Was he drunk all the time?
“A. — He did not get a chance all the time, (unless?) he got out of money.
“Q. — Did he have money all the time ? ' •
“A. — I never saw him with a cent in my life.”

Re-Examined.

“Q. — You never saw him with a cent, because he spent it all for liquor ?
“A. — I suppose he did; I never saw him with a cent.
“Q. — Was he drunk a great deal of the time?
“A. — It was like this; ‘he was drunk when he could get whiskey, I expect.’ ”

And this testimony is rather corroborated by that of some other witnesses; Jatlin, for instance, who testifies that Loveless was discharged for drinking and allowing the boilers to go dry. Morrison, upon the other hand, says that he was discharged for putting saw dust into the injector, and condemning the injector as worthless, and that he, Morrison, never saw him drunk, or smelled whiskey about him. Be that as it may, Loveless was not retained more than ten days or a fortnight after the accident to the plaintiff, and the defendant was unable to find him in order to obtain his testimony.

On the morning of October 17, 1898, about nine o’clock, the plaintiff was at his post at work, when the engine ran away. He stepped to the rope, in order to check it, but was unable to do so, and a very high rate of speed was attained. At that moment the wooden pulley, called the “idler,” to which the motion of the main belt had been eommunicated, burst in pieces, and one, or more, of the pieces, broke the plaintiff’s leg above, and in, the knee joint, and also between the knee and the ankle. Loveless was at that time eighteen feet away from the engine on the top of the boiler, engaged in regulating the feed which supplies the saw-dust fuel to the furnace. He appeared to be perfectly helpless in the emergency, and the engine was finally stopped by 'the aid of Jatlin, a workman who was operating an “edger” at some distance from it. The plaintiff was taken home, and the first .impression was that his leg would have to be amputated, but he was carried by rail to Shreveport the next day, placed in an infirmary, the wounded member kept in plaster of paris for nine weeks, and, eventually, he became able to go about, though he had done no work up to the date of the trial. His leg is half an inch shorter, his knee somewhat stiff, and the testimony tends to show that he will never have as good service from it as he had before the accident. Being about forty-two years of age, however, the expert’s opinion is that his condition will improve. ’ '

The evidence as to the cause of the engine’s running away develops the fact that the “governor” was out of order, and that the fireman and engineer was, as has been stated, eighteen feet away, on the top of the boiler, looking after an arrangement supposed to be automatic, whereby the saw-dust, which was used as fuel, was supplied to the furnace. A subsequent examination by Mr. Morrison of the “governor,” which was intended, automatically, to regulate the speed of ■the engine, showed some scale, or scales, in it which prevented it from working properly. How long it had been in that condition, no one could say. The plaintiff, however, testifies that the engine had run away a few weeks before that, and, to quote his language, “Mr. Morrison claimed that he had fixed the engine, he said he had found out what was the matter with it, that the governor didn’t control the engine, but he said everything was all right, then.”

“Q. — Did he say it would run away again, or would not ?
“A. — He said he had found out what was the matter with the governor, and had had it fixed, that there was not any more danger.”

It is true that Morrison denies this statement; but then Morrison denies that the engine ran away after the accident, whereas there are several witnesses, who have no interest at stake, who testify that it did run away, several times, after the accident, and was stopped by the engineer or fireman, and not by the governor. Upon the subject of the pulley, it appears that the ten-inch pulleys were good enough, in their way; that is, for use on stationary shafts, with belts running over them; but that wooden pulleys, made in sections which are fastened together, are not safe for “idlers,” and that, where a twenty-inch “idler” is required, it does not answer the purpose, but is very unsafe, to make it up of two ten-inch, sectional, wooden pulleys, placed side by side, as was done in this case, and fastened together, or not fastened together, as the case may be. There are several witnesses who testify that Morrison, who had charge of'the mill, said that the arrangement was a temporary one, and we are satisfied that he appreciated the fact that the pulley was not of the proper kind, and that it was dangerous; but he seems to have preferred that the men working in the mill should take the risk, rather than concern himself about getting another one.

We have, therefore, a patched boiler, an engine, with a governor known to be defective; and both engine and boiler, acquired at secondhand, and of an age beyond the knowledge of any of the witnesses. To which, add a man in charge of the engine, acting in the double capacity of engineer and fireman, who was never sober when he could get drunk, who was, at the moment of the accident, engaged in the work of a fireman, at a distance from the engine, and who, when the engine ran away, was not enough of an engineer, to know what to do without the assistance of a mill hand who makes no pretence that he is an engineer at all. Further than this, we have a pulley assigned to work which it was incapable of performing safely, to the knowledge, not only of the superintendent of the mill, but of persons less well informed. And finally^ as a result of it all, there is an accident, and a working man, who must live by his labor, is badly crippled, in an effort to save himself and the property of his employers from the consequences of their own recklessness.

We think that, upon principle and authority, the plaintiff: is entitled to recover:

> 1. Because the running away of the engine was a result of a defect in. the governor, which the defendant knew, or ought to have known.

2. Because, if the engineer had been competent, or the defendant had employed, a fireman to assist him, one or the other of them might have checked the runaway.

3. Because two ten-inch, split, wooden pulleys were an unsafe substitute for a twenty-inch pulley, whether wood or iron, to be used as an “idler.”

■ 4. Because the plaintiff was subjected to dangers, by reason of defective and insufficient appliances, and an incompetent engineer, which were not incidental to the business in which he was engaged, and from which he was entitled to protection through the presumed knowledge and intelligence of his employer.

Poirer vs. Carroll, 35 Ann., 699; Towns & Wife vs. R. R. Co., 37 Ann., 630; McFee vs. R. R. Co., 42 Ann., 791; Bomar vs. R. R. Co., 42 Ann., 983; Mattise vs. Ice Co., 46 Ann., 1535; Meyers vs. R. R. Co., 49 Ann., 27; Stucke vs. R. R. Co., 50 Ann., 173; Hough vs. T. & P. R. R. Co., 100 U. S., 212.

As to the amount to which he is entitled, the evidence shows that he is forty-two years of age, that he earns his living by manual labor, that he was receiving fifty-two dollars a month when injured, and that up to the date of the trial, he had lost eight months time, or over $400.00, and was still not in a condition to do the work which he had done before.

It also shows that he had paid his surgeon $183.50. Under these circumstances, we repeat what was said in the case of Mullins vs. Blaise, 37 Ann., 92, to-wit: “Where the verdict of the jury is not manifestly excessive, and when we can feel no certainty that any modification thereof would come nearer exact retribution, we are not justified in disturbing it.”

The judgment appealed from is therefore aflirmed.


text:
    No. 13,309.
    John Simmonds vs. The Southern Rifle Club.
    Syllabus.
    1. A rifle club is liable for injury to outside persons resulting from target practice on its premises.
    2. Where the evidence excludes every other reasonable hypothesis than that the ball which struck the person injured was fired from the club grounds, by members or guests engaged in target practice, such person Is entitled to recover from the club.

      APPEAL from the Civil District Court, Parish of Orleans— Theard, J.

      Benjamin Bice Forman and B. B. Forman, Jr., for Plaintiff, Appellant.

      Buck, Walshe and Buck for Defendant, Appellee.
   The opinion of the court was delivered by

Monroe, J.

This is an action in damages, brought by plaintiff in behalf of his minor child, a little girl, for injury said to have been sustained by her, whilst in her father’s yard, by reason of her having been struck by a rifle ball, fired from defendant’s premises by one of its members, or a guest.

There was an exception of no cause of action, followed by a general denial.

The facts.which we find established, beyond controversy, are as follows, fo-wit:

On Sunday morning, July 31, 1898, some persons, members of the club, or guests, were engaged in target practice on defendant’s premises, with what are known as “twenty-two calibré” rifles, there being no other shooting going on in the neighborhood at that time. The targets in use were steel discs, fastened, at a height of four or five feet above the ground, upon the face of what is called by the witnesses a “parapet”, which was directly on a line between the Stand from which the firing was being done and the point, in the plaintiff’s yard, where the little girl was playing. This being the situation, the child was struck by a 22 calibre bullet, which penetrated the right groin, and she fell to the ground, and was sent to the hospital, and afterwards cared for at home until her recovery, the wound proving slight.

The “parapet” mentioned, might otherwise be called a bulkhead. It is a wooden structure, or close-jointed fence, built up to a height of twelve feet, of planks, a- little over three inches thick, laid horizontally, and fastened to post's, set perpendicularly; the horizontal joints being covered, on the side of the club, by wooden strips, six inches wide, and an inch and a quarter thick. The top of this structure, above the point at which the three inch planks aré used, consists of planks, or lines of planking, not'more than an inch and a quarter in thickness. Behind it, that is to say, on the dividing line between the two properties, and separated from the parapet by a few inches (probably by the thickness of the posts) is an ordinary fence, seven feet high, built of one-inch, feather-edged'planks.

The facts thus stated are practically beyond dispute, but as to the other facts relied on by the litigants, there is some conflict in the testimony. The defendant’s counsel contends that it is shown that the parapet was impenetrable to bullets, fired from the rifles used, and there is testimony on that subject — some tending to show that, the parapet was sound, solid and impenetrable; and other tending to show that, as a matter of fact, it had been penetrated by rifle balls, and that the planks of which it was built, were, in places, perforated by bullets, and affected by dry rot.

We are satisfied that if the parapet, constructed as it was, had been perfectly sound, at all points, and free from holes or decay, it would have stopped the bullets fired from the rifles used by the club. But certain pieces of rotten wood have been introduced in evidence, which were pulled off of it by the witnesses, who have testified that they could have obtained more, in the same way, if they had chosen to do so. It also appears that the top plank had formerly been at the bottom, and was transferred to its present position upon an occasion when the parapet was reconstructed, and that it has a great many bullets and bullet holes in it, though it does not affirmatively appear that the holes go entirely- through.

Under these circumstances, the fact that whilst the members of the club, or their guests, were firing- 22 calibre bullets in the direction of this parapet, the plaintiff’s minor child, who was directly in line of the firing, at a distance of about 120 feet on the other side of the said parapet, was struck by such a bullet, taken in connection with the evidence that there was no other firing going on in the neighborhood, carries with it the conviction that the bullet by which the child was struck came from the rifle of one of those who, alone, were firing; and we do not consider it necessary that the precise course of the bullet should be traced. It is not beyond the range of possibility that it may have struck the parapet at a point where it had been already partially perforated by one or more bullets, and where the wood had become rotten by reason of the letting of the rain and air into the hole thus made.

We, therefore, think that the club should be held liable for the injury sustained. C. C., 177, 2315, 2317. Fortunately, that injury was not serious. The child was sent to the Charity Hospital, and remained there for nine days, but she might have returned home at the end of three days. The wound healed, and there is nothing to indicate permanent injury. In .our opinion, $150 would be a reasonable amount to allow.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that there now be judgment in favor of the plaintiff, John Simmonds, for the use and benefit of his minor child, and against the defendant, the Southern Rifle Club, in the sum of one hundred and fifty dollars ($150) and costs in both courts.


text:
    No. 13,268.
    Jaques Dubos vs Jules S. Dreyfous.
    Syllabus.
    As relates to some of tlie facts, there is no ground for an injunction; but as to other facts, they show cause for an Injunction, if sustained at the trial on the merits.
    Article 669 of the Civil Code provides that if one’s works, or one’s property cause an inconvenience to those in the neighboring houses, “their sufferance must be determined by the rules of the police or the customs of the place.”
    An injunction will issue to enforce ordinances, police regulations, and customs of a neighborhood in a matter of a partition wall and ventilation in a stable. This does not render necessary interference with defendant’s premises, its occupation, or use. It may continue without change until it is determined to what extent repairs or changes are necessary in order to maintain police regulations or custom. ,
    APPEAL from the Civii District Court, Parish of Orleans— Rightor, J.

      Albert Voorhies for Plaintiff, Appellant.

      Dart and Reman for Defendant, Appellee.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff brought this action, accompanied with an injunction, for the abatement of an alleged nuisance. He is the owner of the premises situated just below defendant’s livery stable, on which, premises he resides and conducts a grocery store and liquor saloon. His complaint is that the defendant owns and conducts a stable on his, defendants, property with its front along the sidewalk and its lower side built of boards between which there are cracks through which the water, when the horses and wagons are washed, splashes on his lot. He also complains in his petition of the noisome odor coming from plaintiff’s stalls, the swarm of flies drawn thereby,, and the interminable stamping of the horses and mules which destroys comfort and prevents sleep.

The defendant is a member of the firm of Dreyfous & Co., carrying on a large retail dry goods business on Canal street. The horses and mules, about nine in number, necessary in delivering their goods are kept at this stable. The wagons are also stabled here. Defendant gives his personal attention to the management of the stable and goes there two or three times a day, even going at night some times.

The front part of the property is used as a stable in which the horses, mules, etc., are kept, and in the rear is a' place where the head stable man sleeps. There are a well and a cisitern on the premises.' The well is in the rear of the front building and the cistern is between it and the building. The water in the well is used only for the purpose of washing the horses and mules, etc. It was also used, years ago, to water plaintiffs plants and to do some washing for him. On account of a disagreement between him and the defendant, or, perhaps only because the pipe from 'the well to his lot was broken, he discontinued the use of the well for the purposes mentioned.

The evidence for the plaintiff sets out that the odor from the stable is, at times, offensive, particularly in the morning; that the stable and lot are not sufficiently drained and that the flies are numerous. There was something said by one of the witnesses about the stamping of the animals, and something was also said by witnesses about the water thrown against the side of the wall from the inside splashing through it on to plaintiff’s lot. The defendant met this evidence by calling a number of witnesses to the stand, who testified to a different condition of things at and about his stable. His witnesses testified that his stalls were well and cleanly kept, that the well water was not offensive at all. The testimony disclosed that other places in the vicinity were not in a healthy condition. On the lot adjoining the defendant’s stable, the house is occupied by a man who keej)s organs for rent, against whom complaint has frequently been made. It appears that those who gather there are disreputable and unclean, and the condition of the house is, in every way (so said one of the' witnesses), horrible; that the filthy occupants made no attempt at cleaning anything, the result being that the place is loathsome in the extreme;. that there are several colored barrooms, dives, and other places in the neighborhood, where negro roustabouts congregate and live, often without the least regard for sanitation or comfort; that in fact, the residence of plaintiff, and two or three other buildings near by are the only ones kept fairly clean.

The judgment in the lower court was against plaintiff, rejecting his demand and dismissing his injunction. The plaintiff prosecutes this appeal.

In our judgment, the defendant sought to maintain proper cleanliness, the well and the other appurtenances to the stable not by any means being offensive, as alleged. The water in the well is in -about the same condition as that in all other ordinary wells. The stable is kept as such places are ordinarily kept. It doubtless attracts flies, and may at times, generate offensive gases, but it does not attract all the flies, nor generate all the offensive odors in the vicinity. The plaintiff himself testifies that there are flies everywhere, creating the impression that the stable is not particularly objectionable in that respect.. But we do think that it requires even more of the attention of the owner than heretofore given i-t by him to prevent this stable from becoming a nuisance. The purpose of plaintiff is to prevent the defendant from occupying the place as a stable, at all. In this he must fail. Stable keeping being a legitimate occupation, may be regulated; it cannot be suppressed as a nuisance per se. In order to sustain his action in its entirety, plaintiff insists that the part of the ordinance requiring brick walls without openings where the sides of a stable are along a public street (or that, stables he placed within five feet of the sidewalk), is still in force. In answer to this position we can only say the decisions in State vs. Mahner, 43 Ann., 496, and State vs. Kuntz, 47 Ann., 106, may well give rise to a different impression. An extract from the last cited decision reads as follows: “On the ground announced in those opinions, we hold the ordinance involved here to be void.” (Italics ours.) If, in the face of the foregoing, there remains any force in the ordinance, we think that it, the ordinance, may well be taken as illegal, because unreasonable.

The chief cause of complaint is that for the number of animals kept in this stable, the small openings between the planks of defendant’s stable near the ground, and an opening in the rear of the building in which the horses are kept, do not give sufficient ventilation. A brick wall, without openings, for which plaintiff contends, would only serve to decrease the facilities for ventilation. And as to the distance of five feet from the sidewalk, if plaintiff were to succeed in shortening defendant’s stable to that extent, it would not add to his comfort in any way and would only result in preventing the use of a building in the face of a certificate in evidence from the city engineer’s office, attesting that the owner has complied with the “grades, specifications and plans of Ordinance No. 6,533, adopted July 5th, 1892,” and in the face of a permit from the Board of Health to build as authorized by the building permit, both dated July, 1898.

For several years previous to the purchase of this building by the defendant, it had been used as a stable. In view of the length of time it has been in usé without complaint, we think that only positive testimony that it has been a nuisance would justify a judgment decreeing that it be closed as a stable, simply because it did not stand five feet from the sidewalk, or, because it had no front wall without openings.

Counsel for plaintiff truly says in his brief that stables remain under the special police supervision. The testimony in this case shows that the cleanliness in this stable and the manner in which it is kept has the approval of this supervision and this approval is sustained by the testimony of a number of witnesses.

The ordinance in force upon the subject of stables requires that it should be kept clean and wholesome by removal of offal, urine, and other offensive matters and by suitably cleaning it as often as may be necessary under the regulations and rules established by the Board of Health. As relates to the foregoing requirements, the preponderance of the evidence shows that the defendant complied with the ordinance. As relates to- the ventilation and the dividing wall between the plaintiff and the defendant, the testimony is not conclusive. We are inclined to think, after having read the testimony carefully, that there is not enough ventilation in this stable, as well as in other houses in the vicinity. With reference to the other houses in the vicinity, the question is not before us for decision, but after having considered the testimony, we are constrained to say, that as relates to cleanliness, some of these houses are in a "wretched condition, suggestive oí gloomy, sombre, narrow and slummy streets. Horrescimus referens. The condition of this neighborhood has, doubtless, received police attention before now, as it must have been brought to the attention of the authorities during' the course of the trial.

Returning to the question of ventilation of defendant’s stable, and the splashing of the water, we have no doubt but that they can be remedied. We feel no hesitation in stating that, as relates to the free circulation of air in houses where animals are kept, an appeal for the proper enforcement of the ordinances, regulations, or customs on the subject is remedy enough. - In enforcing such ordinances, it would follow that division walls of brick or lumber would prove sufficient protection. C. C., 669. That'will result in requiring that the building be^suffieiently ventilated and that the cracks in the wall below between plaintiff and defendant be closed.

We reiterate the following as bearing upon the isues here; “to with- “ in reasonable limits, the individual citizen has to submit to some an- “ noyanee and inconvenience from the legal exercise of the rights, of “ others, and would only hold defendant responsible on strict proof of “ a clear disregard by the defendant in injunction of those obligations “ which Article 669 C. C. declares citizens owe to each other under the “laws, independently of all agreement.” State ex rel. Violett et al. vs. Judge, 46 Ann. 85.

It is therefore ordered, adjudged and decreed that the judgment is affirmed as relates to-the plaintiff’s complaint of violation of an ordinance requiring a brick wall to be built, or curtailing the length of the building, so that it- be removed five feet from the sidewalk, and, also, in all other respects except as relates to the dividing wall- between plaintiff’s property and the defendant’s stable, which should be closed to a sufficient extent.in height to restrain odors, as far--as possible, and also the splashing of water.

It is further ordered, adjudged and decreed that the judgment be reversed and the injunction reinstated in so far as relates to the necessity of making a sufficient wall and sufficient openings for ventilation. It is therefore ordered, adjudged and decreed that to that extent, i. e. wall and ventilation, the judgment is reversed and the injunction reinstated and the case remanded to the lower court for further proceedings according to law. The defendant to pay costs of appeal.


author: Blanchard, J.

text:
    No. 13,331.
    Succession of Mrs. Alice B. McCloskey.
    Syllabus.
    1. A bequest In a will for the erection of a memorial window to another In a church, left in trust to trustees who are themselves to fix the amount to be . so expended — the will naming no amount tó be thus disbursed — Is not a valid testamentary disposition.
    2. A bequest of the residue of the testator’s estate to trustees in trust for such charitable uses and purposes in Ireland as> they in their discretion might think proper to apply it to, is not a valid testamentary disposition.
    3. ’I'be institution of heir or other testamentary disposition committed to the choice of a third person Is null.
    4. Impossible conditions, those contrary to the laws, are reputed not written.
    PPEAL from the Civil District Court, Parish of Orleans — Ellis,

      Leon L. Labatt for Legal Heirs, Appellees.

      Ernest T. Florance for Defendants, Appellants.
   The opinion of the court was delivered by

Blanchard, J.

Alice McCloskey, of the City of Belfast, Ireland, died there in March, 1897, leaving a last will and testament, which was admitted to probate in the District Registry of the Probate and Matrimonial Division of the High Court of Justice in Ireland, for the District of Belfast.

She made, in the will, numerous bequests of legacies to persons and charitable institutions, none of them exceeding in amount two thousand dollars.

The property constituting her estate was located entirely .in the city of New Orleans, over two-thirds of the same being real estate, the remainder movable property.

Alexander Dempsey and William Dempsey of Ireland were named in the will as executors.

■ James A. Donnelly, of New Orleans, was appointed dative testamentary executor by the court here, and, as such, administers the estate.

Certain nephews and nieces of the deceased, claiming as legal heirs, brought suit to have declared void and without effect certain clauses of the will disposing of the residue of the estate left after payment of debts and legacies.

These clauses are as follows: “And my trustees shall hold the residue of moneys forming portion or arising from the sale, calling in, collection and conversion of my American property in trust to apply such an amount as they shall think fit in the erection of a stained glass memorial window in St. Patrick’s Church, Donegall Street, Belfast, in memory of the late Rev’d Michael Cahill, C. C., formely of St. Patrick’s Church aforesaid, and in trust to pay and apply any surplus of the said such residue for such charitable uses and purposes in Ireland as they in their discretion shall think fit.”

********

“I devise and bequeath my plate, jewelry and all my estate, property and effects not hereinbefore disposed of unto my said trustees upon trust to pay my funeral and testamentary expenses and debts, if necessary, and upon trust either to retain the residue in the condition in which the same shall be at the time of my death, or to convert the same into money and apply such residuary estate or the proceeds thereof for such charitable uses and purposes in Ireland, as they in their discretion shall think fit, and in case any of the charitable or other legacies hereinbefore bequeathed, or of which I shall bequeath by any codicil to this my will, shall he or become void at law or shall otherwise lapse or fail to take effect, then I bequeath all such legacies which shall be or become void unto my said trustees absolutely, and direct that all such legacies as shall lapse or fail to take effect shall form part of my residuary estate.”

It is represented that these portions of the will are, to begin with, uncertain, vague and meaningless; that they are null and void because prohibited substitutions and fidei commissa; and that the same are to be reputed as not written.

The executors, answering the attack upon the will, after pleading the general issue, represent that a large portion of the assets of the succession consisted of movables; that the testamentary disposition of the movables is governed by the law of Great Britain, in which country the deceased had her domicile, where she died and where the will was confected; and that under the law of Great Britain the testamentary disposition in the manner and form and to the effect as in the will provided, is valid and effective.

They urge that, should the dispositions attacked be decreed invalid so far as the real estate is concerned, the expenses and debts of the succession should be settled primarily out of the proceeds of the real estate, or at least prorated between the proceeds of the real estate and the movable property.

The court a qua decreed the nullity of the dispositions attacked in so far as the same affects the real estate situated in the State of Louisiana, but sustained the same in so far as the personal estate of the testatrix is concerned, subject, however, to the condition that the perspnal estate in Louisiana must contribute its proportion to the payment of the costs and expenses of the succession and the debts due by the deceased, in the ratio of the value of said personal property to the value of the real estate.

The executors appeal.

The legal heirs, appellees, pray, in this court, that the judgment be so amended as to decree that the burden of the costs and expenses of the succession and of the debts of the deceased be borne by the movable property, and that the movables be exhausted before the real property is called upon to contribute to the satisfaction of any part of the same.

It will be observed that no specified sum of money is bequeathed by the testatrix for the purpose of the erection of a memorial window in St. Patrick’s Church in Belfast. The residue (after payment of the debts and legacies) of funds arising from the sale, collection and conversion of her property in America is left in trust to trustees named to apply such an amount as they shall thinlc fit to the accomplishment of the object named.

It is obvious that this is not a legal testamentary disposition under the law of Louisiana.

After applying as much of the residue as they-please to the memorial window, whatever is left of the residue is bequeathed to the trustees in trust for such charitable uses and purposes in Ireland as they in their discretion might see proper to 'apply the same to.

It is equally obvious that this is not a valid disposition by will under our law. The institution of heir or other testamentary disposition committed to the choice of a third person is null by the express language of the law. C. C. 1573; Succession of Burke, 51 La. Ann. 543.

The objectionable clause in the Succession of Burke read as follows:

“Now, after the bequests have been paid, the remainder of my estate I desite my executors to use for any charitable institution they may select or think of benefiting, to perpetuate my memory.”

In the instant case it reads thus:

“And in trust to pay and apply any surplus of the said such residue for such charitable uses and purposes in Ireland as they in their discretion shall think fit.”

They are practically identical. The one in the Burke case was annulled. So must the one here be annulled.

The clauses of the will do not fall under and are not saved by the provisions of Act 124 of 1882 for the reasons assigned in the Succession of Burke, supra, and the Succession of Meunier, 52 La. Ann. 80. They are to be judged by the codal provisions of the law, and by these are reprobated. Being void, they must be considered as having no existence. Impossible conditions, those contrary to the laws, or to morals, are reputed not written. C. C. 1519.

If they were not written and had no existence, then the subsequent clause, wherein it is declared that in case any of the charitable or other legacies bequeathed “shall be or become void at law, or shall otherwise lapse or fail to take effect, then I bequeath all such legacies, which shall be or become void, unto my said trustees absolutely, and I direct all such legacies as shall lapse or fail to take effect shall form part of my residuary estate,” does not apply.

The same is, besides, too uncertain and vague to enable any one to take under the terms thereof.

The bequest therein is not to the parties named as trustees in their individual capacity, but to them as trustees.

It can not be said with certainty that the testatrix intended the parties named as trustees to take as individuals. It is clearer that she meant for them to take in their capacity as trustees. If the latter was her intention then must she be considered as vesting her trustees with title to the residuum in order to carry out her thereinbefore mentioned purpose, viz: — its application to such charitable uses in Ireland as they might determine. And to this end and in furtherance of this purpose, the concluding words of the clause under consideration contains the direction that the legacies which lapsed or failed to take effect were to form part of her residuary estate. Now, it was this residuary estate, or the proceeds thereof, which was to be applied to charitable uses in Ireland. It was willed to certain persons as trustees who had previously, in the will, been given directions as to how it was expected they were to apply it. It is the same thing as bequeathing it to them in trust for the purpose.

It comes-within the prohibitions of the law and is void.

Had the bequest been made to the parties named as trustees in their individual capacity a different rule might apply.

Counsel for the executors, appellants, say, in their brief, that the question which the case presents may be briefly stated to be: Are the dispositions of the will governed by the principles laid down in Succession of Burke, 51 Ann., or those that controlled the decision in the Succession of Meunier, 52 La. Ann. ?

And they contend that the dispositions attacked are legacies for pious uses, and, therefore, not affected by the words of trusteeship contained in the will..

It is clear that the case is too dissimilar in its facts, in the dispositions made, to bring it within the rule of the Meunier Succession case. There the legacy was definite in amount and was made to the Commune of Carouge for pious uses. Here no legatee is named, the amount is left uncertain and the disposition is to trustees who are directed to apply it to charitable purposes as they in their discretion may think fit.

It is a disposition committed to the choice of third persons, and the case is so similar in this respect to that of the 'Succession of Burke that it must be considered controlled by the rule there announced. '

We have given consideration to the prayer of the appellees for an amendment of the judgment in respect to the apportioning of costs and expenses, but do not consider this a case where C. C. 1668, 1669 and 1670, in respect to selling property to pay debts, apply.

Judgment affirmed.