text:
    No. 13,574.
    Peter Johnson et al. vs. City of New Orleans.
    Syllabus.
    1. In so far as the action of a municipal body may be illegal and may result to the prejudice of the tax-payers, any one or more of the latter have the right to implead the city government.
    2. But a suit thus instituted by the tax-payers against a municipality must be a tona fide proceeding on their part, having the object to assert and protect their individual rights, or those common to all tax-payers.
    3. Tax-payers, simply because they are such, have not the right to lend themselves, in a suit of this character, to others who have an interest to sub-serve, but who prefer to keep in the background. As mere interposed persons they have no right to a standing in court.
    4. There is and can be no such thing as an “intervening answer” by a third person in a cause pending between others. Intervention can be only by petition and citation as prescribed by C. P. 393.

      5. An intervenor should ask timely service of his petition and citation upon the plaintiff and defendant, and where an intervention has been fUed in ample time for service on the other parties litigant and for expiration of the legal delay for citation prior to calling the case for trial, and there has been no demand for such citation and service and none made, the intervenor has not the right, at the last moment, when the case is called for trial, to obtain time to effect such service. In such case, the trial judge would rule correctly were he to hold that the intervenor, in default of citation and service of his petition, has no standing in the cause, and, ignoring him, proceed to ’trial.
    6. Municipal discretion over the preparation of ordinances importing grants of franchises will not be interfered with when no improper exercise of municipal power or authority is shown.
    7. The sale of a thing at public auction is not illegal because it happens that one purchaser, without his connivance or procurement, and without fraud, collusion or undue influence being shown, is in a position, by reason of his situation, to bid a price higher than another.

      ^ PPEAL from the Civil District Court, Parish of Orleans — King,

      Dinlcelspiel <& Hart for Plaintiff, Appellee.

      Samuel L. Gilmore, City Attorney, for Defendant, Appellant.

      Harry H. Hall for St. Charles Street Railroad Company, Intervenor and Appellant.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiffs, Peter Johnson and E. J. Dare, appear as citizens and taxpayers of the city of New Orleans, and complain of the official action of the Common Council. In so far as that action may be illegal, and may result to the prejudice of themselves in common with their fellow taxpayers, they have the right to implead the city government. Handy vs. New Orleans, 39 La. Ann. 108.

But a suit thus instituted by taxpayers against a municipality must be a loona fide proceeding on their part, having the object to assert and protect their individual rights, or those common to all the taxpayers, or to vindicate the charter of the corporation against ordinances, or attempts to enact ordinances unauthorized thereby, or in conflict therewith, or which may have been passed, or which the Town Council may seek to pass, in a manner not in compliance with the charter.

Taxpayers, simply because they are such, have no right !o lend themselves, in a suit of this character, to others who have an interest to sub-serve, but who prefer to keep in the background. As mere interposed persons they have no right, to a standing in court.

“An action can only be brought by one having a real and actual interest which he pursues.”

Code of Practice, 15.

There is that, we think, in the record of this cause which alike justifies and calls for the foregoing observations. But the view we take of the ease on its merits renders it unnecessary to pursue the enquiry further.

The petition herein sets forth, among other things, that the St. Charles Street Eailway Company owns and operates, under existing franchises, which will not expire by limitation until Aniil 11, 1906, certain street railway lines in .the city of New Orleans; that in December 1899, the City Council purported to adopt, and the Mayor to approve, an ordinance whereby the Comptroller of the city was authorized and directed to advertise and sell at public auction an extension for fifty years from April 11, 1906, of the said company’s present street-railway rights and franchises, and also the right and franchise to construct, maintain and operate lines of street railway on certain authorized extensions and additions to its existing linesi or routes, not only during the fifty years, as above, from April 11, 1906, but also for the years subsequent to the present time and prior to April 11, 1906 — the whole to be sold in block; that the total length of the street railways included in this franchise thus advertised for sale aggregates 22.6S miles, of which the lines the said company now owns and operates constitute ll.YY miles, and the proposed extensions and additions 10.91 miles; that the latter have no connection with each other, are of no value except to the person owning and operating the present, existing lines of the said company, and are not capable of being operated as independent lines of street railway; and that the Comptroller had advertised the sale of said franchise to take place March 29, 1900, and will sell the same at that time in block, at auction, unless restrained, to the irreparable .injury of the petitioners, who are remediless in the premises, except through the writ of injunction.

The petition then charges, in effect, that the whole proceeding is a scheme to enable the St. Charles Street Eailway Company to purchase the franchises offered at a price below their value; that the way in which the offer to sell is made precludes full, fair and free competition, excluding any other than the said company from bidding; that the offer becorues a mere bargaining and sale between the city and the car company; that the ordinance authorizing this tb be done is unreasonable, illegal and void; that the conditions and obligations attached by the ordinance to the sale of the franchises are in violation of existing statutes; that the necessary preliminaries and proceedings required by law were not sufficiently complied with previous to the adoption of the ordinance; that the ordinance was never legally adopted; and that the same is ultra vires and void.

The grounds and details of these various charges of illegality, etc., are set forth at length.

Finally, it is averred that there would be other bidders for said franchises if same were advertised and sold according to law, under valid ordinances, and with opportunity for fair, open and equal competition.

The prayer was for writ of injunction to restrain the sale and for judgment decreeing the ordinances illegal, null and void.

In a supplemental petition subsequently filed it was averred that an amendment to the ordinance, proposed by certain officials of the city, in whom Section 86 of the City Charter vested .the authority to amend the same, had not been concurred in by a vote of a majority of the members elected to the Council as shown by the ayes and noes called and recorded, and as required by said Section 86.

The district judge to whom the petitions were presented did not immediately sign the order for injunction, but, instead, directed a rule to issue, requiring defendant city to show cause why a preliminary injunction should not be granted on the showing made.

Hearing was had with the result that the judge discharged the rule and entered an order directing the writ of injunction pendente lite to issue.

This was followed by an application by the city to dissolve the injunction as in case of giving a bond to indemnify plain tift' in whatever injury might result to them by reason of the sale of the franchise rights as advertised under the city ordinance, but averred its exemption by law from furnishing bond in legal proceedings. That is to say, asserting the right to dissolve on bond, but claiming legal exemption from giving the bond itself.

The district judge denied the application to dissolve the injunction on bond, whereupon the defendant city applied to this court for its writ of mandamus to compel the granting of .the order to bond.

The court, a majority of the judges concurring, granted the man- damns (see 52 La. Ann. 1275) and following this the sale of the franchises took place, the St. Charles Street Railway Company becoming the purchaser thereof.

Prior to the trial of the cause upon its merits plaintiffs filed a second supplemental petition averring other grounds of nullity o C the proceedings taken for the sale of the franchises.

The defendant city made answer affirming the regularity of all its proceedings, due compliance with all the requirements of law, and the validity of the sale made to the St. Charles Street Railway Company.

The latter corporation intervened to assert and protect its rights and joined the city in its defense of the suit. It did this by a plea called an “intervening answer”.

There is and can be no such thing as an “intervening answer” by a third person in a case pending between others. Intervention can be only by petition and citation as prescribed by C. P. 393.

The judge a quo ruled properly in holding the document in question to be a petition in intervention which required service upon the plaintiffs and defendant.

Pie was about to continue the cause in order to have this service made, whereupon^counsel for plaintiffs, objecting and wilt reservation of their rights, accepted service of the intervention.

Subsequently the St. Charles Street Railway Co. filed a formal petition in intervention, concluding with a( prayer to be made a party defendant to the suit, and that order was made by the judge.

We consider the Railway Co. merely an intervenor in the suit, “uniting with defendant in resisting the claims of the plaintiff.”

Code of Practice, 389.

The court takes occasion, however, to say that an intervenor should ask timely service of his petition and citation upon the-plaintiff and defendant, and where’ an intervention, as in this instance, has been filed in ample time for service on the other parties litigant and for expiration of the legal delay for citation prior to calling the case for trial, and there has been no demand for such citation and service and none made, the intervenor has not the right at the last moment, when the case is called for trial, to obtain time to affect such service. In such case, the trial judge would rule correctly were he to hold that the intervenor, in default of citation and service of his petition, has no standing in the cause, and, ignoring him, proceed to trial.

See Silbernagel vs. Silbernagel, 32 La. Ann. 766.

On the issues as presented there was judgment below m favor ol plaintiffs, decreeing the ordinance assailed to be invalid, and annulling the sale of the franchises made to the St. Charles Street Railway Company thereunder.

The city of New Orleans and the Railway Company appeal.

The judge a quo rested his decision solely on the ground that the ordinance directing the sale of the franchises had been so framed as to have the practical effect of preventing any one from -bidding at the public offering of the franchises other than the St. Charles Street Railway Company, whereas the charter requirement is that street railway franchises must be offered for sale in such, way as to be open to free and competitive bidding.

I.

The question first to be considered is, whether or not this ordinance (being Council Series No. 15,809) was adopted by the Ci+5 Council in the manner and according to the forms prescribed by the City Charter.

We find that this ordinance was first introduced in August 1899 and in due time was considered by the Council. Various amendments were proposed and adopted and on November 28, 1899, the ordinance as thus amended‘was adopted by a yea and nay vote — the vote standing: Yeas, 26; nays, 0;-absent, 2.

This was a compliance with the requirement of Section 17 of the City Charter (Act No. 45 of 1896) which prescribes that no resolution or ordinance (except those relating to investigation and the conduct of parliamentary business) shall have the force of law unless the same receive the votes of a majority of the members elected to the Council, and unless on its final passage the yeas and nays are- called and recorded.

Section 86 of the Charter directs that every ordinance granting a franchise, after having been introduced! in, considered and passed by the Council in the manner provided for other ordinances, shall be published in full in the official journal for two weeks, and thereafter shall be transmitted to the Mayor, whose duty it shall be to cause the Comptroller, Treasurer, Commissioner of Public Works, Commissioner of Police and Public Buildings and City Engineer to publicly assemble in the council chamber for the purpose of considering and passing upon the ordinance so adopted by the Council'.

We find that all this was done in respect to the ordinance under consideration.

It further appears from Section 86 that the officials named, whom we will denominate the “Franchise Committee”, are empowered, or any four of them concurring are empowered, to “approve, amend or reject” the ordinance. Then follows this language: “but no such ordinance, resolution or order so amended shall be considered finally passed until any and all amendments shall have been concurred in by vote of a majority of the members elected to the Council, as shown by the ayes and noes called and recorded.”

It would thus seem that if the Franchise Committee reject the ordinance that is an end of it and the proposition fails. In this, the Franchise Committee have authority over the ordinance in the nature of the veto power.

If the committee approve the ordinance as it passed the Council, no further action by the Council is necessary, and the ordinance passes on to the Mayor for his approval.

But if the Franchise Committee amend the ordinance, then it must go back to the Council with this amendment or amendments, which must be concurred in by the vote of a majority of the members elected to the Council, as shown by the ayes and noes called and recorded.

In the instant case the Franchise Committee added one provision to the ordinance. That is to say, they reported it back favorably to the Council with one amendment. This amendment was to the effect that all proposing bidders on the franchise as offered at the public sale were to be required to deposit with the Comptroller $2000. In the event of an adjudication under the ordinance the amount deposited by the successful bidder was to be credited on his bid and the other deposits returned to their depositors. The object of this was- to provide a fund for paying the expenses incurred in advertising the franchise, etc.

When the ordinance with this amendment was returned to the Council, a viva voce vote was taken on the amendment and it was adopted.

Then followed a vote by yeas and nays on the ordinance as thus amended and it was adopted.

All that the Charter required was that the amendment be “concurred in” by a vote taken by ayes and noes in the Council.

This “concurrence” might have been had by simply putting the ordinance as amended hy the Franchise Oommittee on its ¿ye and no vote at once. The Franchise Committee had power to add that amendment. It did so. It was not required that there be a separate vote on the amendment, and then another on the adoption of the ordinance as thus amended.

That would have been the parliamentary situation and requirement had the amendment been proposed in the Council by some member thereof. But it was an amendment made to the ordinance by another and a different body vested with power to do so, and all that was thereafter required of the Council was by an aye and no vote to concur in it. This might have been done by such vote taken simply on the proposition to concur in the amendment, or by a like vote taken on the proposition to adopt the ordinance as amended by the Franchise Committee. By means of either, the concurrence by aye and no vote as demanded by the Charter would be had. The latter of the two courses was resorted to. It sufficed.

But it is contended that the ayes and noes must not only be called but recorded as well, and that a mere record kept by roll call of the yeas and nays, as was the case here, does not meet the requirement of the Charter.

The evidence shows that the way it was done in this instance is the way it has been done for years past, under the present and former charters of the city. We cannot say it is not a sufficiently substantial compliance with the direction of the charter in this respect, however much we may be disposed to criticise the method. It were better to call the ayes and noes and record the same in the minutes by giving there the names of those who vote “aye” and the names of those who vote “no.” And in the publication of the minutes it should so appear, for one of the main purposes of the requirement is to acquaint the public — to give information to constituencies — of how the members of the Council voted.

The further requirement of Section 86 of the Charter is that after an ordinance granting a franchise shall have been thus finally passed, it shall be transmitted to the Mayor for his consideration, and if it meet with his approval he shall sign and publish the same, and it shall have the effect of law.

In this instance the Mayor signed and published the ordinance.

II.

The next question to be considered is, was the advertisement of the sale of the franchise under the ordinance sufficient in length of time ?

Section 87 of the Charter prescribes that no franchise for the eperation of a street railway shall be disposed of “except after three months’ publication in the official journal of the terms and specifications of such franchise.”

We find that the first advertisement of the proposed salo of the franchise appeared in the official journal on December 28, 1899, and that it continued until the day of the sale, March 29th, 1900.

This was ninety full days without counting the day (December 28th) the advertisement first appeared, nor that (March 29th) on which the sale took place.

But the requirement of the charter is that the advertisement should be for “three months ” not ninety days. This means calendar months.

Omitting December 28th, the advertisement ran on the 29th, 30th and 31st of December.

January was one month.

February was one month.

Omitting the 29th of March, the advertisement ran in March 28 days.

Add the three days in December, and we have 31 days, or the greatest number of days in any one calendar month.

III.

Was this ordinance so framed and was the sale of this franchise so advertised and effected as to render free and open competition impracticable and to preclude other bidders than the St. Charles Street Kailway Company?

Section 87 of the Charter provides that after three months’ publication of notice thereof the sale of a street railway franchise shall be publicly offered by the Comptroller and adjudicated to the highest bidder. The charter makes reservation, however, of the right of the Council to reject any and all bids, and the ordinance as advertised so stated.

The requirement of the law is that the franchise must be sold to the person or corporation offering the highest percentage of gross annual receipts to be derived from such franchise during the time thereof, first deducting the amount paid each year for taxes.

What the ordinance directed the Comptroller to sell was:—

“The franchise, right of way and right to construct, maintain and operate, and the extension of the present right and franchise to operate and maintain the lines of street railway, with the tracks, curves, switches and other appurtenances as they now exist, and as now owned by the St. Charles Street R. R. Co. for the term of fifty years from tire date of the expiration of the said company’s existing franchise, to-wit: April 11, 1906, and on all the authorized extensions of the route hereinafter provided for, for the unexpired term of said existing franchise in addition to the extension of fifty years above mentioned, over all the streets and places in the city, hereinafter set forth, upon the following terms, conditions, specifications, and with the following additions of route:”

Then follow the description of the existing lines of the St. Charles Street Ry. Co. and that of the authorized extensions.

The whole is directed to be sold in block, and the object was to add the new lines to the existing route with the view of the extension of that system of street railway more largely over the city. The new lines added to the old system nearly doubled the mileage of the old. One fare only over all the lines — the old and new — was stipulated xo be charged.

The construction of the new lines was to begin within ninety days after the signing of the contract and be completed within twelve months thereafter.

Under its existing contract with the St. Charles Street Ry. Co. the city of New Orleans was obligated, at the expiration of the present or old franchise on April 11, 1906, to take at its then value the rolling stock, equipment, depot and fixtures of the company. This obligation the purchaser of the new franchise was required to assume in the city’s stead and to pay the price in addition to the regular bid, and to secure the performance of this as well as the other stipulations of the contract, it was required that, as a condition precedent to the receiving of a proposed buyer’s bid, he should deposit with the City Treasurer the sum of $50,000 — the deposit of unsuccessful bidders to be immediately returned: that of the successful bidder to be retained as security as above stated.

In case the St. Charles Street Railway Company became the purchaser, the city was to be relieved of its obligation to take the property in April 1906 — the ownership of that corporation continuing.

Another stipulation was that the purchaser of the franchises should, during the existence thereof, keep in good order and repair, and to pave or repave as required, so much of the streets through which the lines of the railway ran as is comprised between the rails and between the tracks and for one foot on each side of the tracks.

When the franchise terminates on the 11th of April 1956, it is stipulated that the railroad tracks, rolling stock, equipment, etc., should revert to the city of New Orleans upon the payment by it of a valuation to be ascertained in the manner pointed out by the ordinance.

The bidders were required, also, to deposit with the Comptroller the sum of $2000 each. To the unsuccessful bidder this deposit was to be immediately returned; that of the successful bidder was to be retained as a fund out of which should be paid the cost of advertisement and other expenses of the sale. But the amount thereof was to be credited on his bid.

At the sale of the franchise thus offered the St. Charles Street Railway Company proved to be the only bidder and its bid was for five per cent, of the gross annual receipts, less taxes. The franchise was thereupon adjudicated to it and, subsequently, the sale was approved by the Council and the formal contract executed by the Mayor.

The extensions were four in number connecting with the existing St. Charles- Street Railway Company’s lines at as many points. They have no connection with each other and cannot be operated profitably as independent lines.

Were a purchaser required to construct and operate these extensions, as a whole, as independent lines, there would be no bidders. The same is true if any one of them were offered. It would not pay. Yet they run through parts cf the city where there is great want of improved facilities of transportation and great demand for the same.

The only chance to have the lines, represented by the extensions, constructed is by attaching the same to existing profitable lines when the time comes to renew or resell the franchise thereof.

This has been the policy of the city in past years in respect to other extensions on other lines in renewal of the franchises rhr-reof.

While the present charter directs the granting or renewal of street railway franchises to be offered to the highest bidder at public sale, there is nothing in the charter, and nothing intended thereby, prohibiting the City Council from looking after and securing the extension of street car facilities in parts of the city needing the same, by attaching franchises therefor to existing franchises coming úp for sale in renewal, and selling the same in block as continuous lines, forming a complete system, with one fare over the whole. This is in the interest of the public, in the interest of the development of the city.

The true policy of the city is as much to be found in promoting such .extensions as it is in looking after the pecuniary considerations incident to the sale of such franchises.

With regard to the franchise under consideration the situation was this:—

The St. Charles Street Railway Company applied to the city several yeai-s in advance of the expiration of its existing franchise (but not longer than was customarily done by railroad companies) for a renewal thereof. It asked only for a renewal as to its existing lines.

At once it was met by a demand for the extensions as finally ordered. Members of the City Council refused to introduce an ordinance looking to the renewal unless the extensions were embodied therein as part of the system.

The people in the sections wanting the extensions took the matter up and by public meetings and petitions made clamorous demand for the same. For months the matter was under consideration.

The railroad company did not want and were not seeking the extensions. It was the City Council representing the people behind its members who made the demand.

By means of the extensions thoroughfares would be opened not only * for reaching the homes of the people, their schools and churches, but for the fire engines, police patrol, etc.

By tacking on to a valuable franchise, seeking renewal, the stipulation that the extensions should be constructed and operated as a part thereof, these thoroughfares could he obtained.

We are of the opinion the Council could legally pursue this policy, and while its exercise may have resulted in some advantage to the owners of the old or existing franchise in the matter of bidding at the sale, we do not find that other bidders were shut out from competing. Other persons or corporations could have put themselves in position to have become competitors. -The proposed extensions touched, crossed or came in contact with the lines of other street railroad companies.

The advantage to the St. Charles Street Eailway Company was not of its seeking or connivance and resulted merely from the situation it occupied as owner of the existing lines to which the extensions were attached. It was not, therefore, an illegal advantage.

No fraud, or collusion, or undue influence is shown, and as far as the city was concerned its rights were protected against the consequences of a hid too low in amount, for its guardians had the right reserved to reject any and all bids.

There was, we think, a sufficient compliance with the requirements of the Charter, in the matter of such sale, to maintain the same.

With regard to the amount of money required to be deposited by bidders, to protect the city and to enforce compliance with the obligations of the contract, the same was within the just discretion of the Council and the court will not interfere therewith.

The same is true with regard to the stipulation that the purchaser of the franchise should be required to keep in good order and repair and to pave and repave when required the portions of streets occupied by the railway tracks, and the other stipulation that a purchaser, other than the owner of the existing franchise, should relieve the city of the obligation it is under to take at its valuation the rolling stock, equipment, fixtures, etc., of the company now operating the existing lines.

We are constrained to differ from our learned brother of the District Court in the conclusion he arrived at, and, for the foregoing reasons, it is ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and it is now ordered and decreed that the injunction herein sued out be dissolved and the demand of the plaintiffs be rejected at their costs in both courts.


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 13,846.
    Simon Schwartz vs. Fidelity and Deposit Co. of Maryland.
    Syllabus.
    A party applying to the Supreme Court for a writ of review of the judgment of the Court of Appeals overruling an exception “of no cause of action,” and remanding the cause for a trial on the merits, is sufficiently protected by reserving to him the right to test before the Supreme Court the correctness of this judgment, on the review of the final judgment to be rendered in the case, if such review should become necessary.
    IN EE Fidelity and Deposit Co., Applying for Certiorari, or Writ of Eeview, to the Court of Appeals, Parish of Orleans, State of Louisiana.

      Purnell M. Milner for Applicant.
   Statement of the Case.

The opinion of the court was delivered by

Nicholls, C. J.

From the allegations of the applicant herein it would appear that it was the security upon an attachment bond executed by S. Israel & Co., in order to obtain an attachment against Jennie Levy. That certain incorporeal rights of Simon Schwartz were seized and garnisheed.

That Schwartz applied to the civil sheriff for a release of the property upon giving him an indemnity bond, but the sheriff refused to accept the bond or release the seizure. That, failing to obtain this release, he proceeded judicially against the sheriff to obtain, and did obtain, the release. That in these last proceedings he had to expend twenty-three dollars for attorney’s fees and costs.

That he then instituted a suit against the Fidelity and Deposit Company to recover this amount, as being liable to him as surety in the attachment bond. That it filed an exception of no cause of action; no averment being made that the attachment had been dissolved or set aside as having been wrongfully obtained. That the district court sustained this exception and dismissed the suit. That the plaintiff thereon appealed to the Court of Appeals. That the latter court reversed on appeal the judgment of the district court, overruled the exception of no cause of action, and .remanded the cause for a trial on the merits. The object of the present application is to have the Supreme Court review this action of the Court of Appeals.

Opinion.

The judgment rendered in the two courts which we are asked to review was upon an exception of no cause of action, taken during the progress of the cause. The effect of the judgment of the Court of Appeals is to cause the case to be tried upon its merits. We think the rights of the applicant will be sufficiently protected by reserving to him the right (should it be finally cast in the action and the judgment against it be brought to this court for review) to question then the correctness 'of the judgment of the Court of Appeals upon this exception.

We decline for the present to review the judgment of the Court of Appeals referred to in the application. We reserve expressly to the applicant the right, should the final judgment rendered in the cause come to us for review, to submit to us at that time as one of the questions for review, the correctness of the judgment of the Court of Appeals, sought to be reviewed at the present time.


author: Bbeaux, J. Blanchard, J.,

text:
    No. 13,721.
    State of Louisiana vs. Claree Spillers and Joe Spillers.
    Syllabus.
    1. An entire sentence spoken by an accused, a short time prior to the homicide, and overheard by a witness, if admitted in evidence, is not reversible error if it docs not appear wherein it had any bearing on the crime charged, it was not an admission of guilt; on the contrary, it was a denial of a wron? charged, which had, so far as the record discloses, naught to do with the homicide.
    2. If it was used as derivative evidence, then it was admissible as part of the res gestae.

    3. Applause by a number of those present at the trial, at once checked by the presiding judge, who particularly directed the jury not to give it attention and to decide the case according to thoir judgment, offers no ground to set aside the verdict.
    APPEAL from the Twelfth Judicial District, Parish of Vernon— Lee, J.

      Walter Guión, Attorney General, and Amos L. Ponder, District Attorney, (Lewis Guión, of counsel) for Plaintiff, Appellee.

      Egan & Pegues for Claree Spillers, Defendant, Appellant.
   The opinion of the court was delivered by

Bbeaux, J.

On the 26th day of July, 1900, the defendants were indicted by the grand jury of the parish of Vernon for the alleged murder of D. Rumsey, on the 30th day of June, 1900. In July following, the case was continued to the next term of the court. In October of this year the case was called and fixed to be tried on the 31st day of that month. At the time the case was called for trial, the defendants, on being asked if they were ready for trial, having answered in the affirmative, the case was taken up for trial and tried.

The jury found the defendant, Claree Spillers, guilty as charged, and Joe Spillers not guilty. Erom the verdict and sentence Claree Spillers prosecutes this appeal.

During the trial a bill of exceptions was taken. After verdict, defendant (Claree Spillers) mo,ved for a new trial. The bill of exceptions sets forth that counsel for defendant objected to the testimony of a witness who testified as follows, to-wit:

“As I was passing, I overheard Mr. Rumsey, the deceased, say to “ Claree Spillers: ‘You have robbed me and got all I have got, so you go “ away from me. I don’t want to have anything at all to do with you.’ “ Her answer was: ‘You are a d: — n liar. I ain’t got your money.’ When “ I overheard this conversation I was going from Ferguson’s saloon to “ Howell’s. I did not stop, but heard the conversation in passing. Don’t “ know how long they had been talking when I heard the above conver- “ sation. They were talking before I reached them and were talking “ when I left them. I did not hear the statement that immediately pre- “ ceded or immediately followed the above remarks. I do not know how “ long they had been talking or how they had talked together, but had “walked twenty or thirty steps and saw them walking along arm in “ arm, when I looked back. It was only about twenty or thirty minutes “ after I heard this conversation when the killing took place.”

This testimony is incorporated in the bill of exceptions, and is the only testimony taken down while the witnesses were being examined. The district judge signed the bill of exceptions without assigning reasons for admitting the testimony.

In view of the gravity of the case, we have incorporated in our decision the whole narrative of the bill of exceptions. The statement made by the defendant to the deceased is, in itself, complete. The sentences of this statement are not uncertain, but are direct and positive. The witness said that he did not know what the defendant said just prior to, or just after, the statement above narrated. This' testimony does not give rise to the inference that the conversation preceding or following the statement had anything to do with the murder charged. As to the statement, it is not an admission of the defendant. On the contrary, it is denial of a wrong with which she was accused, but which had naught to do with the homicide. The testimony is not proof of a confession, for what the defendant said had nothing about it in the nature of a confession. It was not inculpatory.

“A confession is an admission made at any time by a party charged with a crime, stating or suggesting that he committed that crime.” Bradner on Evidence, p. 215, par. 13.

Here, the asserted admission or conversation overheard does not suggest, in the most remote degree, that defendant committed the homicide.

The defendant was without right to have this statement excluded on the ground that the witness should have stated the whole conversation, in view of the fact before stated, which is as follows: That nothing shows that the statement admitted incriminated her, and in the second place, for the reason that it does not appear that the conversation overheard was explained in any manner by some other statement made by her. She made no statement, as disclosed by the evidence, rendering it necessary to refer to it, and in any manner explaining, limiting, or changing the overheard conversation, so far as the record discloses.

The objection urged by defendant’s counsel was .that the witness was not able to repeat the entire conversation, and that it was not competent for the court to admit-an isolated phrase or part of a conversation; that the accused was entitled to have the whole of it, or to have the whole of it excluded from the jury. In answer to a similar objection, this court said: “If more was uttered on the same subject, it was the duty of defendant’s counsel to have introduced those other persons and proved that fact, and not left it open to inference.” State vs. Oliver, 43 Ann. 1003.

Besides the testimony was admissible, although the witness did not hear the whole conversation.

We understand it to be the rule that one cannot use his verbal or written statements in his favor, yet, if the State uses such a statement as evidence, the defendant is entitled to have it all before the court; the whole is to be proved up, and “the jury may estimate the probability of' any part of it which makes in his favor.” Best on Evidence, p. 213. That rule is not controlling, we take it, when it does not appear that the statement or overheard conversation introduced by the State has any bearing on the crime charged and when it does not appear that it would have been prejudicial to the accused in the most remote manner. But, if the overheard conversation had any bearing, as relates to intent and motive, is was, in our view, admissible as part of the res gestae.

In State vs. Molisse, 38 Ann. 381, the court held that time does not, of itself, determine whether a statement is part of the res gestae. Motive may be proved by evidence which is part of the res gestae. Bishop Cr. Pr., vol. 2, p. 630; 290; Best on Evidence, par. 495, and note. The conclusions just stated bring us to a consideration of the grounds alleged by the defendant for a new trial. They are, that the district attorney, in concluding the closing address, appealed to the jury to bring in a verdict of guilty, and that, thereupon, the crowd in the court-room burst into applause, which the judge immediately suppressed, and he sent the sheriff in the audience to apprehend the wrong-doers in thus applauding. The judge then especially instructed the jury to disregard this applause and instructed them in the case to be governed by their opinion alone.

We do not infer, from the statement, appearing of record, that the jury was influenced by the applause. No account is given of details regarding this demonstration. It may have been the demonstration of thoughtless boys and of men even more thoughtless than boys. As reprehensible as the act was, and however'much it is to be regretted that men will so far lose their self-respect at anytime while a human being is being tried for her life, yet, in view of the repressive measures taken and the prompt and determined action of the district judge, we do not think that we should remand the case for another trial. We trust that upon such occasions juries are not influenced by senseless applause. Recently, we have had occasion to express our views about the feeling of by-standers and its influence on the jury. State vs. Renaud, 50 Ann. 662 (665). As in the cited case, we do not find sufficient ground upon which to set aside the jury’s verdict. It is not made evident that the jury was influenced.

The defendant, being a woman condemned to suffer the extreme penalty of the law, we have given the issues our most earnest consideration. We have found no ground upon which we can possibly disturb the verdict and sentence of the court.

Eor reasons assigned, the judgment and verdict of the court are affirmed.

Blanchard, J.,

dissents on the authority of State vs. Hughes, 29 La. Ann. 514, and State vs. Gilcrease, 26 La. Ann. 622. The testimony of the witness Phil Simon was offered by the prosecution to prove motive, and, therefore, had a direct bearing on the case. The single remark of the accused which he overheard and testified to was but part of a conversation. It should have been excluded. It cannot be considered as part of the res gestae, for it was some thirty minutes later that the killing occurred.

Rehearing refused


author: Blanchard, J.

text:
    No. 13,704.
    State ex rel. John T. Dowdell vs. A. C. Allen, Judge.
    Syllabus.
    1. It is from the averments of litigants that the judge must decide whether or not the writ of judicial sequestration should issue.
    2. To wait until the right of title is made clear, and that of possession made certain, would be to render useless and vain that provision of the law authorizing resort to the writ.
    3. It is held herein that a previous writ of injunction obtained by one of the litigants was not set aside by the judicial sequestration which was issued to meet the requirements of a later phase of the controyersy; it was merely suspended as to one of the objects which he who had obtained it had in view, viz: under shelter of the writ cutting the timber from the land in controversy.
    4. But if this were a coming in conflict with the injunction, it was a proceeding alike sanctioned by the law and commanded by considerations of justice.
    5. If a court, on a proper showing made, may order the judicial sequestration of property, it does not become shorn of this power by reason of the fact that it had antecedently on an ex parte showing, made some order in reference to the same property.
    REPLICATION for Writs of Certiorari and Prohibition.

      D. Caffery & Son for Relator.

      Meniz & Borah for Respondents.
   The opinion of the court was delivered by

Blanchard, J.

Previously, relator had presented a petition to the district judge in which he represented he was engaged in the business of getting out ties; that these ties were made from cypress timber; that he held a contract from the owners of a certain tract of land, which he described, authorizing him to take the timber therefrom; and that he had entered upon the land for the purpose.

He] alleged further that the representatives of the Orphans’ Home Society and of the Freedman’s Aid and Southern Educational Society were interfering with his work of taking timber from the land and that if this interference were persisted in it would completely break up his business and cause him irreparable injury.

Verifying by oath the allegations of Ms petition he asked for a writ of injunction to prevent further disturbance.

On the ex parte showing thus made, the judge (respondent herein) granted the injunction.

To this petition, the Orphans’ Home Society and the Freedman's A. & S. E. Society, made defendants, answered, setting up in themselves, as owners in indivisión, title to the land whereon relator had entered and from which he was cutting timber.

They averred they had acquired this title in 1867 and had been in possession of the land as owners ever since, under recorded deeds; and adding to the period of their own possession that of their vendors, they had possessed as owners for over fifty years,, and this possession had been open, public and notorious.

They denied that any one had given the plaintiff, Dowdell (relator herein) authority to cut timber from the land, and that if any persons bad undertaken to do so, their act was null, since they were not the owners.

They further asserted that the plaintiff (relator) well knew the land in question was their property, for prior to going upon the same to cut ties he had applied to them for permission to take the timber therefrom and had been refused. They declared his attempt to gain possession through the writ of injunction was a subterfuge, using the machinery of the court to effectuate a purpose he had failed to accomplish by private agreement, and that his intention was to maintain the injunction only so long as he could get the timber off the land, which timber constituted almost its sole value.

The filing of this answer to relator’s injunction suit was followed by the institution before the same court of an action by the Orphans’ Home Society and the Freedman’s A. & S. E. Society against Dowdell in which their title to the land was set up substantially as given in their answer to his suit.

They referred to the adverse claim set up by Dowdell and to the injunction he had sued out, and represented that he and others in collusion with Mm were engaged in ai scheme to hold possession of the land until they could denude it of its timber.

They represented anew Dowdell’s previous acknowledgment of their ownership by seeking to contract with them for permission to cut the timber, etc.

They, averred their property was in danger of being despoiled to their irreparable injury, since Dowdell and Ms associates were irresponsible, and that unless the court intervened the devastation and spoliation would be accomplished before the injunction sMt filed by Dowdell could be tried, and there would be left to the petitioners^ only “a ruined, dilapidated and plundered swamp” — Dowdell and his associates having reaped the harvest of timber and gone off with the only thing of value in the contest.

The prayer of this petition was for “such conservatory orders as the court may deem proper for the preservation of the property pending the litigation,” and for judgment decreeing their ownership, etc.

Oath was made to the truth of the averments contained in the petition.

On this showing and in view of the whole situation as presented to him by this double-barreled litigation, the judge of the District Court thought the interest of justice required the court’s further intervention, and, accordingly, he made an order in the last suit filed directing the judicial sequestration of the land and its timber, both standing and cut, the same to be held in the custody of the sheriff until the respective rights of the parties could be adjudicated.

After vainly endeavoring to secure an order of revocation of the judicial sequestration, Dowdell applied to this court, in the proceeding now before us, for its writ of prohibition and certiorari, to prevent the respondent judge from proceeding further in the matter of the judicial sequestration, and to obtain, the annullment of the same as being in violation of the writ of injunction which the relator had previously obtained.

The contention is that the judge, by directing the judicial sequestration, has practically disregarded and set at naught the injunction; that the latter can not be collaterally and incidentally nullified by the issuance of a counter writ from the same court; and that until regularly dissolved, the injunction must be- recognized, upheld and' enforced as a valid and effective writ, subject to attack, modification or dissolution only in the proceeding in which it was issued.

The judge justifies his action by thei statement that the litigation pending in Ms court showed an earnest contest over the ownership of real property, with the apparent right of possession in one litigant being no greater than in the other. Further, that his court was about to adjourn (at the time the judicial sequestration was issued) for the summer vacation, and it was made to appear by the sworn statéments of the Orphans’ Home Society and its alleged co-owner that, pending the vacation and pending the trial of the suits filéd, the swamp land in controversy would be ruined by the action of the relator and further litigation over the same rendered fruitless.

He declares the case was one which, under C. P. 274, called for the action he took, viz :• — taking the possession of the thing in dispute from the disputants and putting the same in the custody of the sheriff until the question of title and right of possession could be finally adjudged; that from the averments of litigants must the judge decide whether or not the writ of judicial sequestration should issue; that to wait until the right of title was made clear, and that of possession made certain, would be to render useless and vain that provision of the law authorizing the resort to judicial sequestration, which is a conservatory writ to be exercised in the sound discretion of the court to protect real property pending the settlement of the question of its ownership.

He denies that the sequestration as ordered nullifies the previous injunction, but'merely suspends the operations of the selator in the matter of taking the timber from the land in dispute and maintains the status quo until the rights, of the claimants can be determined.

Ruling — The two suits, that of Dowdell against Orphans’ Home Society, et als., and that of the latter against Dowdell, are pending in the same court. It is one and the same controversy. The eases might well be, and should be, consolidated .and tried together.

All that is set up in the separate action brought by the Orphans’ Home Society and its co-owner, and all that is prayed for therein, might well have been set up and prayed for in their answer filed to the injunction suit brought by Dowdell.

And had they made the whole issue in their answer to that suit, the judicial sequestration, if issuable under the circumstances,' could just as well have issued in that cause, following their answer, as it did in the separate suit to which they resorted.

So, it is not the ease of one writ in one pending cause issuing to come in conflict with another writ in another pending cause.

Neither is it regarded as presenting, objectionably, the case of the issuance of conflicting writs in the same cause. Dowdell, on an ex parte showing, obtained an injunction which dispossessed the Orphans’ Home Society and its co-proprietor of real property they claimed to own, and which went even further, for it practically authorized Dowdell to denude the land of its timber. At least, that was to be and 'would have been the effect of the injunction.

And he had adroitly so drawn his petition as to make the injury to him, against which he invoked the injunction, appear irreparable — this to preclude dissolution of the injunction on bond.

But when the other side of the controversy came to be presented, first in the answer to the Dowdell suit and next in the petition in the separate suit brought by those against whom the injunction was directed, it appeared that an earnest contest was on involving the ownership and right of possession of real property and as the situation then presented itself, unless the court ordered its judicial sequestration, one of the claimants would devastate the property to the irreparable injury of the other claimants.

It is difficult to conceive a case more clearly authorizing a judge to make use of the power vested in him by Articles 273 and 274 of the Code of Practice, and taking the temporary possession' of the property from both claimants hold it in the custody of his court until he could pass upon the merits of the rival contentions.

By doing this, the writ of injunction which Dowdell had obtained was not set aside; it was merely suspended as to one of the objects which he who obtained it had in view, viz: — under shelter of the writ cutting the timber from the land.

But if this were a coming in conflict with the injunction then it was a legal conflict in the sense that it was a proceeding alike sanctioned by the law and commanded by considerations of justice — to hold and maintain the status until the court could -pass upon the rights of property.

If a court, on a proper showing made, may order the judicial sequestration of property, we do not understand that it is shorn of this power by reason of the fact that it had antecedently, on an ex parte showing, made some order in reference to the same property.

In such a case as here presented the judge sits as chancellor vested with discretion to grant the equitable order, taking possession from both litigants and holding the property in the custody of his court to prevent its waste and dilapidation, whether these would result from acts extra-judicial, or from those which it is sought to protect and sanction by ex parte judicial orders.

It is ordered that the rule nisi which issued herein be discharged and that the writs applied for be denied at the cost of relators.


author: Monroe, J.

text:
    No. 13,523.
    New Orleans Auxiliary Sanitary Association in Liquidation.
    Syllabus.
    1. The creditors of a private corporation, established for a public purpose, are entitled to be paid from the proceeds of the property of the corporation, and the claim that such property cannot be seized or otherwise made available in satisfaction of debts due by the corporation, upon the ground that, being the property of a corporation established for a public purpose, it must be regarded as dedicated to public use and exempt from seizure, cannot be sustained.
    2. Whether, in the particular case before the court, the title to the residuum of such property, after the payment of the debts of the corporation and the charges and expenses of liquidation, vests in the public or in the members of the corporation is not determined.
    3. Upon the case presented, the putting of the corporation in liquidation and the selection of the liquidating commissioners by the members in general meeting convened were competent acts and were properly recognized and confirmed by the District Court. .
    APPEAL from the CítíI District Court, Parish of Orleans— Theard, J.

      Henry J. Leovy for New Orleans Auxiliary Sanitary Association, Plaintiff, Appellee.

      Samuel L. Gilmore, City Attorney, and Arthur McGuirh, Assistant City Attorney, for City of New Orleans, Defendant, Appellant.
   Statement of the Case.

The opinion of the court was delivered by

Monroe, J.

It appears from the record that the' New Orleans Auxiliary Sanitary Association was incorporated in 1879, under a charter, the provisions of which, so far as it is necessary to quote them, read as follows, to-wit:

“Article 1. The purposes and object of this corporation are hereby declared and specified to be the execution of such measures as are or may be necessary for the preservation of life and the public health, and to prevent the introduction and spread of disease; and to these ends to aid and assist the public authorities in carrying into effect all proper ordinances and laws relative to public health, and to adopt systematic measures for the collection and distribution of money or property derived from voluntary subscription, or otherwise, in such manner as will best tend to preserve life and property and to promote the prosperity and health of the city of New Orleans.”
“Article 2. * * * said corporation shall have and enjoy succession and exist and continue for * * * twenty-five years * * * to receive, hold, acquire and dispose of, as well as let, lease, and hire any and all kinds of property,” etc.
“Article 7. The members of this corporation, at any general meeting convened for such purpose, after twenty days’ prior notice shall have first been given * * * shall have the power * * * to dissolve the association, with the assent of three-fourths of the members of the association, present at such meeting.”

After its incorporation, the association appears to have been regularly organized, with the required officers, and to have entered upon its life of proposed usefulness. In 1880, the city of New Orleans adopted an ordinance (No. 6442 Administration Series) whereby it granted to said association the use of a certain portion of ground on 4he river front between Nuns and Celeste streets “with the right * * * to control and hold possession of the same for twenty-five years.” This ordinance contains the further provision that, at the end of the twenty-five years, “or at any other period, that the land should revert to the city * * * the city shall pay to the association the value of the improvements, machinery, buildings, etc., that may then be upon said property; the value to be ascertained and fixed by the appraisement of two arbitrators, one to be appointed by the city authorities and the other by said association. And in case of failure of these two -appraisers to agree, they shall appoint an umpire, whose decision shall be final in fixing and determining the amount to be paid by said city to said association.” In 1881, another ordinance (No. 6981 Administration Series) was adopted, granting the use of a portion of ground, bounded by Toulouse, Jefferson and Olay streets, with the same conditions as to reversion. And, in July, 1891, Ordinance 5400, Council Series, was adopted, amending the two ordinances above mentioned by extending the period of the grants therein contained so as to make them run for twenty-five years from the date of such amendment, The evidence shows that the association expended over sixty thousand dollars in establishing baths, pumps, buildings, tanks, pipes, etc., and maintained the same as public benefactions, at its own expense, for many years. Finally, however, in 1895, at a general meeting of the members, resolutions were adopted, reading, in part, as follows, to-wit:

“Whereas this general meeting * * * is duly convened after public notice * * * for the purpose of considering * * * the dissolution of the association, in the manner required by the law of Louisiana, and especially Section 68Y of the Revised Statutes, and by Article Y of the charter, and to appoint commissioners to liquidate its affairs; and

“Whereas, this association has for many years been supported by the contributions-of its members and by voluntary aid from other citizens; and whereas in consequence of the recent stringency in business, its resources have almost entirely failed, and it is without means to longer accomplish any of the purposes for which it was created, or to pay current expenses and the salaries of officers and the wages of employees, and is now largely in debt without ready means to liquidate its indebtedness; and

“Whereas, if the affairs of this association be promptly and properly liquidated, a large sum will be realized from the city of New Orleans by surrendering to it the property now held by this association and collecting from the city the value of the improvements -made by this association, as provided by Ordinance No. 6442, Administration Series, adopted April 20, 1880; Ordinance No. 6881, Administration Series, adopted April 12, 1881; and Ordinance No. 5400, Council Series, adopted in 1891;

“Be it resolved, That Henry Ginder, Edwin Belknap and Nicholas Bowling * * * be and they are hereby appointed commissioners to liquidate the affairs of this corporation, and that each be required to give security in the sum of five hundred dollars for the faithful performance of their duty, and that they be authorized to take all necessary steps to transfer to the city the property now held by this corporation on the conditions named in the above recited ordinances, and to do all other things necessary to fully liquidate the business of this corporation. * * * That the proceedings of the meeting of this association, held on the Yth of August, 1895, in which it was determined to surrender to the city the property held by this corporation, on payment of the value of the improvements, be and the same are hereby approved and ratified, and that the petition to the city, prepared for the purpose, * * * be presented at once * * * for the action of the Mayor and the City Council.”

It was then moved that the association be dissolved and that the meeting adjourn sine die, and the motion was carried.

Following this, upon October 22, 1895, the commissioners named presented a petition to the Civil District Court reciting the action which had been taken, annexing a copy of the minutes showing the same, and praying for recognition as liquidating commissioners, and for an inventory, etc.; and, the necessary order being made, they gave bonds, took the oath required, and received letters as such commissioners. Thereafter, said commissioners took possession- of the property of the association and, having placed keepers in charge, undertook to bring about a settlement of the questions which the situation presented as between the association, in liquidation, and the city of New Orleans. With this object in view, they had several meetings with the Finance Committee of the Council and with the Mayor, at which they laid before those officers the condition and debts of the association, but with no definite result. The matter remained in that condition until 1897, when, during, or in anticipation of, an outbreak of yellow fever, the commissioners took the responsibility, upon the advice of their counsel, of loaning the pumping plant to the city in order that, by flushing the gutters with water, the sanitary condition might be improved, and the possession thus acquired by the city seems to have been thereafter retained. Having, as we understand the record, been unable to find any other solution of the problem with which they were called on to deal, the commissioners, in May, 1898, took a rule on the city in which they allege, in substance, that bills against the association, to the amount of over seven thousand dollars, have been presented to them for payment, but that they are without funds to pay them or to pay for the insurance of the property, or the costs of their administration; that, upon the faith of the contracts embodied in the ordinances which have been already set forth, the association expended large sums in erecting buildings and improvements, etc., which, under existing circumstances, the city is hound to pay for at an appraisement to be made as provided by said ordinances, but that the city refuses to appoint an appraiser or to take any action in the matter notwithstanding repeated demands to that effect, and they pray that the Mayor be ordered to show cause why he should not appoint an arbitrator, or, otherwise, why the property in question should not be sold at auction. To this rule the city answers:

1. That the association is not in liquidation, but is dissolved.

2. That the order appointing the liquidating commissioners is ultra poiitionem.

3. That the petition does not allege that the association has any creditors, or that its affairs need administration.

4. That the creditors did not consent to the appointment of the liquidators.

5. That the city did not consent to such appointment.

6. That the association left no property to be administered.

7. That there was no suit pending against said association, or creditors asking for the appointment of liquidators.

The appearer alleges that it is interested in having such action taken, and, converting its answer into a rule, prays that the commissioners be ordered to show cause why their appointment should not be set aside and vacated.

The issues thus presented were tried together; the rules of both parties were dismissed, and it was ordered and adjudged “that the city of New Orleans, for the use and benefit of its citizens, be recognized as owner and, as such, entitled to possession of the De Soto pump, the Thompson pump, the Morris baths, flushing pipes and other machinery and improvements erected and placed by the New Orleans Auxiliary Sanitary Association upon the said city’s property, described in Ordinances Nos. 6442 and 6981 A. S. and in Ordinance No. 5400 C. S., subject,, however, to the payment by said city of New Orleans Of all debts incurred by the New Orleans Auxiliary Sanitary Association, in the acquisition, erection, maintenance, operation and preservation of said machinery, pipes and improvements, to the extent of the value thereof.”

From this judgment the city appealed, and the commissioners have filed an answer to the appeal in which they pray that the judgment be amended by granting a mandamus to compel the Mayor to appoint an arbitrator, who, together with an arbitrator to be appointed by them, and an umpire, in case of disagreement (all as provided in the ordinances which we have set forth), shall fix the price to be Daid by the city of New Orleans for the property as described in the rule; otherwise that said property be sold at public auction.

Opinion.

The counsel for the city argues that all of the property of the association, now before the court, having been bought and paid for by voluntary subscription of citizens, and having been acquired by a corporation established for a public purpose, must be held to be property dedicated to public use and not available to creditors of the association in satisfaction of the debts due them.

He, therefore, contends that the judgment appealed from, in so far as it decrees that said property is subject to such debts, should be reversed.

The proposition stated ignores the fact that, whilst the purpose for which the association was established was public, the association itself was a private corporation, capable, in law, of owning property, and incurring debts, in its corporate capacity. H, in such a case, there is any law by which property so owned is exempt from seizure for debts so incurred, our attention has not been called to it. It may be that, by reason of the declared purposes for which the association was established, the residuum of its property, after the payment of its debts and of the expenses of administration, will vest in the public rather than in the corporators, but that is a matter which need not be determined until the debts and expenses are paid and it is ascertained that such residuum exists. In the meanwhile, we are of opinion that, upon the ease as presented, the recognition and appointment of the liquidating commissioners was authorized by law and precedent. T. O. Stark, Receiver, vs. Burk, Watt & Co. et al., 5th Ann. 740; Follett vs. Field, 30 Ann. 161; In the matter of the Mechanics Society, 31 Ann. 627; In the matter of the Louisiana Savings Bank, 35th Ann. 196; State vs. Herdic Coach Co., 35th Ann. 245; Hancock vs. Holbrook et als., 40 Ann. 53; Belton praying for Receiver, 47th Ann. 1614; In re Moss Cigar Co., Ltd., 50 Ann. 789.

Considering the answer to the appeal and the prayer of the commissioners for amendment of' judgment, it is well settled that a mandamus will not lie to enforce the fulfillment of a mere contractual obligation. State ex rel. New Orleans vs. Railroad Co., 37 Ann. 589; Smart vs. Kansas City, Shreveport & Gulf R. R. Co., 51 Ann. 200. If, however, the city continues to refuse to abide by the conditions of the ordinances referred to in the opinion, we know of no reason why the property of the association should not be sold at the instance of the commissioners for the purposes of the liquidation with which they are charged.

It is therefore ordered, adjudged and decreed, that the judgment appealed from, in so far as it decrees that the “city of New Orleans, for the use and benefit of its citizens, be recognized as owner, and, as such, entitled to possession of the De Soto pump, the Thompson pump, the Morris baths, flushing pipes and other machinery and improvements erected and placed by the New Orleans Auxiliary Sanitary Association upon the said city property,” and in so far as it rejects the demand of the liquidating commissioners, appellees herein, for the sale of said property, be annulled, avoided and reversed, and it is now ordered, adjudged and decreed, that, unless the city of New Orleans shall, within thirty days from the date upon which this judgment shall become final, by pleading in the District Court, consent to abide by all the conditions of the Ordinances Nos. 6442 and 6981, Administration Series, with respect to the appointment of arbitrators, and the valuation and reversion of the property in controversy, then, and in that case, the said commissioners shall have leave to cause said property, or so much thereof as may be necessary for that purpose, to be sold in order to pay the debts due by the New Orleans Auxiliary Sanitary Association and the legitimate charges and expenses incident to, and arising out of, the liquidation and administration of its affairs; sucia sale or sales to be made at public auction or otherwise,' as may be ordered by the judge a quo upon the application of said commissioners. It is further ordered, adjudged and decreed, that the question of the ownership and destination of the residuum of property or money, if any there shall be, in the possession of said commissioners, after the payment of the debts, charges' and expenses above mentioned, is •expressly reserved. It is further ordered, adjudged and decreed, that the judgment appealed from be, in all other respects, affirmed, and that the city of New Orleans pay the costs in both courts.


author: Nioholls, C. J.

text:
    No. 13,618.
    City of New Orleans vs. Mrs. Alice Chappuis.
    Syllabus.
    1. A party charged with crime is entitled to be fairly informed of the nature and cause of the accusation against him. There is a class of cases where, by reason of the special nature of the offense, the charge may be general, but in such cases the court, or the party, may require the prosecuting officer to furnish the defendant with a bill of particulars showing the particular facts relied on.
    2. Parties sentenced to fine or imprisonment under a municipal ordinance have the right to have the legality and constitutionality of the ordinance tested in the Supreme Court and to have matters placed in the lower court in such shape as to enable the appellate court to have the issue properly presented The supervisory powers of the Supreme Court can, in proper cases, be invoked to secure that right.
    3. The Supreme Court is not authorized on an appeal to it from a sentence of fine and imprisonment under a municipal ordinance to reverse the judgment for an error in the decision of the facts upon which are dependent not the legality or constitutionality of the ordinance, but the guilt or innocence of the accused under the ordinance.
    4. Where, on an appeal to the Supreme Court from a sentence of fine and imprisonment under a municipal ordinance the record discloses the existence in the lower court of an issue upon which the sentence could be made to rest independently of any question as to the legality and constitutionality of the ordinance and evidence under that issue supporting the sentence, the appeal will be dismissed.
    5. A criminal law is not to be pronounced unconstitutional merely because by following literally its broad and general terms acts perfectly legal might be made the subject-matter of a criminal accusation. The proper course is to read out of the purview of the law matters clearly not Intended to fall under it. (State vs. Keasley, 50 Ann. 761.)
    6. A charge of unconstitutionality directed as a whole against ah ordinance containing six different sections will fail if any of the sections are sustainable. The charge should be made against a particular specified section or sections.
    7. The owner of a building in which she has maintained a house of ill-fame will not be forced to move from her house on notice -from the mayor to that effect, if she immediately alters her conduct and abandons her occupation, though she may be punished for her past acts on substantive charges and proof.
    APPEAL from the Second Recorder’s Court, City of New Orleans— Mormouget, J.

      Samuel L. Gilmore, City Attorney, Arthur Mc,Guirk, Assistant City Attorney, and M. Dracos Dimitry, Assistant City Attorney, for Plaintiff, Appellee.
    Defendant, Appellant, unrepresented by counsel in the Supreme Court.
   The opinion of the court was delivered by

Nioholls, C. J.

The affidavit before the recorder, on which the judgment appealed from was rendered, charged the defendant with having, on the fifth day of July, 1900, “wilfully violated City Ordinances 13,032 and 13,485, Council Series, relative to lewd and abandoned women.”

By this judgment defendant was condemned to pay a fine of five ■dollars and in default thereof to imprisonment for ten days.

Referring to the record we find copies of two city ordinances, one ordinance containing nine sections, the other ordinance containing one section. The second ordinance is an amendment of the first. . Both ordinances refer to the same subject. .

The defendant demurred to the complaint, charging that the ordinances were unconstitutional. The recorder overruled the demurrer, and the case went to trial, and, on evidence adduced, defendant was found guilty’.

A party charged with crime is entitled to be fairly informed of the nature and cause of the accusation made against him. There is a class of eases, in which the charge may be general by reason of the special nature of the offense, but in such cases the court, or the party, may require the prosecuting officer to furnish the defendant with a bill of particulars showing the particular facts relied on. (Clark’s Criminal Procedure, Sections 62 et seq., 151 et seq).

Parties sentenced to fine or imprisonment under a municipal ordinance are entitled by constitutional provision to test the legality and constitutionality of the ordinance by appeal to the Supreme Court, and that right carries with it the right to have matters placed in the recorder’s court in such a shape as to have the legality and constitutionality of the ordinance fairly submitted to the appellate court. Tf that right be denied them, they have the right, after exhausting proper efforts in the recorder’s court, to have matters so placed, to have recourse for relief to- this court under its supervisory power.

Where an ordinance contains six or nine sections, one or more of the sections may be constitutional and tbe others not. A general charge of having violated the ordinance as a whole, followed by a trial and judgment without specific finding, would leave matters uncertain as to the violation of which section of the ordinance the accused has been found guilty. If he had been found guilty under one of the constitutional sections, he would have no right to contest the unconstitutionality of the other sections.

The defendant did not call for a bill of particulars in the recorder’s court, but she, after filing a demurrer, went to trial on the general charge of having violated the two ordinances. When found guilty she did not appeal to the Criminal District Court for the Parish of Orleans, under Article 139 of the Constitution, nor did she come to this court under its supervisory powers, but came to it through an appeal in which form of remedy its powers are extremely limited. We are not authorized to reverse the judgment for an error in the decision of tbe facts upon which are dependent, not the legality and unconstitutionality of the ordinance, but simply the guilt or innocence of the accused under the ordinance.

We can not tell from the record before us of the violation of which section or sections of the ordinances the recorder found the appellant guilty. There are sections of the ordinance which could constitutionally form the basis for a legal judgment of conviction, for their violation, if sustained by evidence, and there is evidence in the record tending to support a judgment under one or more of these sections. If defendant, in fact, violated section five of the ordinance, she could have been legally convicted to fine or imprisonment under Section 6, independently of any action whatever having been taken by the Mayor. Mayor.

A notice from the Mayor in the premises would have been merely in the nature of putting in default. The simple act itself of “failing to obey the Mayor’s notice” would not constitute a substantive offense. The notice and the violation of the notice would only enter incidentally into the accusation as one of the steps leading up to the prosecution. We can not say the recorder undertook to convict defendant of having simply violated a notice from the Mayor, without having had affirmatively proved to his satisfaction the existence of the facts upon which that notice was based, and which would legally justify the conviction.

It will be. observed that the judgment of the court was not that the appellant should move from her house and home, but that she should be fined five dollars, or imprisonment, for a certain established, prior illegal act. If defendant, being guilty, under Section 5 of the ordinance, and served with the notice from the Mayor, which is referred to in the ordinance, had not obeyed it by moving, but had, none the less, at once, changed her mode of life, or given up her illegal occupation, we scarcely think the recorder would have made the mere refusal to move the ground for his judgment. He might, well, however,’ in spite of this fact, have found her guilty and sentenced her for having violated the ordinance prior to the change in her life or business.

In City vs. Mack (41 Ann. 1079), this court said that ordinances should receive a reasonable construction. We can not pronounce laws ot, ordinances unconstitutional from the simple fact that their terms are so general that, by following blindly and literally their very letter, parties might be convicted and punished for acts perfectly legal— because, in other words, their provisions might be extended in their application beyond their legitimate and intended scope. (State vs. Keasley, 50 Ann. 761). The proper course to be followed under such circumstances is to read out of the purview of the law, or the ordinance, as not intended thereby, matters, which if necessarily to be enforced under them would render them unconstitutional. It is to be presumed that judges will follow that course.

There are sections in the ordinances in this case which would not be sustainable, if they were intended to be made, and could forcedly be made, to cover all eases falling under their very broad and general terms, but we must assume, as we have said, that when they are sought to be applied they will be restricted within proper limits. It will be time enough to discuss the question of the force and authority of the City Council to deprive a citizen of the benefit of a shelter or a house or home, simply because she may be an immoral person, if, when in the occupancy of that house or home, she be not guilty there of immorality (Hubbard vs. Moore, 24 Ann. 592), when any case of that character should arise and call for a decision. Appellant urges that the recorder refused to allow evidence to show that she had, after she received notice from the Mayor, done no act by reason of which she could be legally found guilty under the ordinance, and counsel insists that the recorder was without warrant or justification in bringing under the term, “lewd and abandoned women,” a woman whose relations with a particular man were those of husband and wife, without their being such in fact. It is true that the recorder did restrict the evidence, but we can not say that the reason for' restraining it was that suggested. He may well have deemed the evidence irrelevant in view of other evidence going to show proper cause for the conviction outside of the particular issue which appellant was seeking to raise. We have no reason to suppose that the recorder construed, as it is suggested he did, the term “lewd and abandoned women.”

If the recorder merely misapplied the law, defendant had means of relief from the error by appeal to the Criminal District Court.

We can not say, from the record, that the judgment of the recorder was not a legal conviction based upon a constitutional section of the ordinance. The demurrer was a general one, directed against the ordinance as a whole. He was justified in overruling it if parts of the ordinances could successfully resist the attack. We think there were sections of that character in the ordinances. As matters stand we can not reverse the judgment.

The judgment is affirmed.


author: Bbeaux, J.

text:
    No. 13,642.
    City of New Orleans vs. Annie Rinaldi.
    Syllabus.
    1. The legality and constitutionality of the ordinance attacked alone are at issue.
    2. The act denounced by the City Council has the sanction of several statutes.
    3. The defendant does not appeal from the asserted notice, but from the judgment which was afterwards rendered.
    4. If the notice be illegal, it was not the basis of the judgment appealed from; which was rendered on an affidavit and after hearing witnesses.
    5. While it is desirable that an affidavit initiating a proceeding such as was instituted should specify the particulars constituting the charge brought, it may yet be held sufficient if it sets forth the ordinance and the particular section violated.
    6. While a subpoena applied for should issue, if, on appeal, it appears that the testimony of the witnesses would not in any manner have served to sustain defendant’s theory, the judgment will not be annulled.
    APPEAL from the Second Eecorder’s Court, City of New Orleans— Marmouget, J.

      Samuel L. Gilmore, City Attorney, and M. Bracos Dimitry, Assistant City Attorney, for Plaintiff, Appellee.

      Joseph B. Derbes for Defendant, Appellant.
   The opinion of the court was delivered by

Bbeaux, J.

This is an appeal from a judgment condemning the appellant and defendant to pay a fine of five dollars, or, in default of payment of this fine, to be imprisoned for ten days for the alleged violation of a city ordinance. The Mayor of the city issued a notice which was duly served on the defendant and which was signed June 26th, 1900. On the 27th day of July following, one of the police officers of the city filed an affidavit against the defendant containing a reference to the ordinance which he swore defendant had violated. The defendant was arraigned and testimony was heard for the respective parties to the suit. After the evidence had been heard, the judgment to which we have before referred was rendered.

We do not make a summary of the facts, for all the parties agree in the statements that, under the repeated decisions of this court, the facts are not before us on an appeal from the Recorder’s Court. Our jurisdiction on appeal is confined to a review as to the legality and constitutionality of the ordinance assailed and the fine imposed. From the number of decisions on that subject, we cite the most recent, State vs. Hahn, 50 Ann. 432, and City vs. Graffina, 52 Ann. 1082, and pass to a consideration of the points at issue on this appeal.

The first ground urged by defendant in her demurrer filed in the Recorder’s Court is that Ordinance No. 13,032, C. C., as amended by Ordinance No. 13,485, is illegal and unconstitutional for the reason that there is no such offense known in the law as that embodied in Section-6 of Ordinance No. 13,032 C. S. The court a qua found that the whole ordinance had been violated and did not confine the decision to Section 6 of the original ordinance. The whole ordinance embraces the original and the amending ordinance. Reading the two together, the original and the amended, we find no difficulty in arriving at the conclusion that there is an offense known to the law as set out in this ordinance. We will not dwell upon this jo-hase of the issue. We do not conceive its necessity. The authority is delegated to the municipality and such legislation has always received the law’s sanction.

The next objection stated in the demurrer is directed against the officer of the city by whom the notice, before mentioned, was issued. The complaint is that he assumed, before sufficient hearing, that the defendant was amenable to the charge made and that, thus assuming. he issued a notice which should not have been issued before hearing. Conceding- that this complaint covers the asserted harshness of the notice in question, it yet remains a fact that an examination was had and that no judgment was pronounced before the defendant had the opportunity of being heard before the recorder’s court. However stringent the Mayor’s notice may have been, and however true may be the charge that it was a preliminary step too conclusive in its nature, the defendant did not leave on account of the notice,, but) remained and stood her trial, which resulted in the judgment from which she appeals. She does not appeal from the asserted offending notice, but from the judgment of a competent court. This notice did not have, under the circumstances and in view of the trial and subsequent judgment, the effect of a judgment. We leave this contention of defendant after citing Waters Pierce Oil Co. vs. Mayer, 47 Ann. 863, as having some bearing in support of this notice.

The next ground of the defendant’s complaint, as set out in the demurred, is that the affidavit is vague, indefinite, and insufficient.

It was, we think, drawn in the usual form of such an affidavit. The affiant pointed to the ordinance which he swore had been violated and sufficiently, in our view, placed the defendant on her defense.

The next ground of the demurrer is equally unsustained by reason sufficient to authorize us to set aside the judgment appealed against as null. We have already stated that, in our view, the prosecution and the judgment were broad enough in their scope to embrace the charge of having violated all the ordinance, both original and amendment. It would serve no purpose for us to decide that Section 6 of Ordinance No. 33,032, O. S., is unconstitutional, in the face of the fact that there are a number of sections other than Section 6 not attacked and not subject to attack, which sustain the proceedings and the judgment, if the facts are as found by the recorder. The defendant did not file a bill of particulars, as she might have done.

Before this court, on appeal, defendant urges that'the lower court, without reason in law, refused to grant her a motion for a subpoena on the Mayor. The record shows that counsel had a note showing the court’s refusal to grant this motion entered on the minutes in lieu of a bill of exceptions. We notice that defendant’s brief on appeal sets forth that the Mayor stated, in the notice to the defendant to remove from the house designated, “his knowledge” of the facts charged; that this notice was made the basis of the proceedings.

On appeal, the defendant urges that in view of this asserted “knowledge” and the fact that this notice was the basis of the proceedings, she was entitled to his testimony. If this position be correct, the subpoena should have been issued if timely requested. The position may be correct from defendant’s standpoint, but not when the questions involved are considered as a whole. The Mayor’s asserted knowledge had naught to do with the proceedings before the Recorder’s Court. Defendant appeals from the judgment pronounced by the Recorder and not from anything connected with or growing out of the Mayor’s notice to vacate. .

The proceedings were initiated by an affidavit, which was issued three months after the Mayor’s notice. The affidavit charges the defendant with having violated Ordinance No. 13,032, C. S., Sections 1, 2, and 6, as amended by Ordinance No. 13,485, C. S. We strike out for the moment Section 6, under which the Mayor acted, and still there remains a complete prohibition which the defendant is charged with having violated.

Section first of Ordinance No. 13,032, C. S., is complete in itself and when taken and construed with Section 5, the prohibition is about as complete as any prohibition can be. It follows that there is no necessity to pass upon the Mayor’s action and that his testimony regarding that action can not have the least bearing. His notice was foreign to the conviction!. Testimony relating to the notice is not germane to the issues involved and now before us for decision. One has no right to testimony touching an issue not before the court.

Eor the reasons assigned, the judgment appealed from is affirmed.