author: Breaux, J.

text:
    No. 11,790.
    New Orleans, Fort Jackson & Grand Isle Railroad vs. Mrs. Ada C. McNeely.

      Effect of Remittitur on Appeal. — A. remittitur by defendant of part of bis claim in reconvenfciott, after the verdict has been rendered, does not prejudice the ap - pellant’s right of appeal.

      Filing of Transcript. — The transcript of appeal was filed within the delay allowed.

      Jury’s Valuation of Property. — Although the defendant does not interpose an answer, or file any claim for the value .of property, a decree of expropriation must be preceded by and based upon a valuation of the property by the jury.

      Verdict. — A jury’s verdict is entitled to great weight in the expropriation proceedings, fixing the value of land sought to be expropriated, and will be annulled only when manifestly erroneous.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      James Wilkinson for Plaintiff, Appellant.

      Thomas F. Maher for Defendant, Appellee.
    Argued and submitted May 8, 1895.
    Opinion handed down June 3, 1895.
    Opinion refusing rehearing June 21, 1895.
    On Motion to Dismiss.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff sues to expropriate a small triangular lot of ground situated in Algiers. Plaintiff tendered to the defendant the sum of fifty dollars for the lot, which the latter declined to accept.

The defendant denies plaintiff’s allegation, and reconvened for damages and attorney’s fees, which she fixes at more than three thousand dollars. The jury’s verdict sustained the prayer to expropriate the land and assessed the value of the land expropriated at five hundred dollars. After the verdict the defendant abandoned his demands in reconvention for damages, and entered a remittitur of one dollar, thereby reducing the verdict tn four hundred and ninety-nine dollars, and judgment was signed for the amount last stated.

The defendant moves to dismiss the appeal on the ground that this court is without jurisdiction ratione materise; on the grounds, further, that the transcript was not filed in time, and, lastly, that the plaintiff did not deposit the amount of the judgment with the sheriff.

With reference to the jurisdiction of this oourt, ratione materise, it is settled that a remittitur after the verdict has no more effect on the rights of the appellant than a remittitur has after judgment in a ease not tried by jury. It is governed by the same rule in so far as relates to appellant’s right of appeal.

In Gayden vs. Railroad Company, 39 An. 269, 271, the court decided that a remittitur entered after the verdict did not prejudice the defendant’s right to appeal, and cited several decisions in support of the court’s conclusion.

RELATIVE TO THE FILING OF THE TRANSCRIPT.

The delays had not elapsed, and the plaintiff was within the required time when it was filed in this court on the 4th of April.

The order of appeal was granted on the 19th day of March. The plaintiff’s transcript was filed within the three judicial days allowed by this court and the delay of fifteen days provided by a special statute. R. S. 1490; C. P. 589.

REGARDING A DEPOSIT OF THE AMOUNT OF THE JUDGMENT WITH THE SHERIFF.

The effect of the deposit by the corporation is to pass title from the owner to the corporation. It does not relate to the right of appeal. It remains unaffected by the deposit.

On the Merits.

The defendant, having abandoned her reconventional demand, must be confined to the amount of the verdict and judgment of the District Oourt. She having formally entered an abandonment of all damages can not claim more than the amount allowed by the jury.

The plaintiff urges that the defendant having confined his pleadings to allegations of damages, and not having pleaded that the propertysoughtto.be expropriated was of greater value than the amount tendered, the jury was without power in law to give a verdict for a larger amount than that tendered, viz.: fifty dollars.

Under the statute the jury “shall, by a verdict in which at least three-fourths of their number shall concur, determine, after hearing the parties and the evidence, what is the value of the land.” Sec. 1481, R. S.

The law’s provision is that they shall fix the value of the land sought to be expropriated. Moreover, all of defendant’s witnesses were heard under the plea of general denial regarding the value of the property, without any objection on the ground urged. There was a joinder of issue regarding the value of the land in question, but even if there had not been, on a confirmation of default, without claim on part of the defendant for its value, the jury would have to determine the value of the land. It is a prerequisite to a decree of expropriation.

This brings us to the question of the value of the property.

The learned judge was inclined to view the estimate of the jury as exaggerated. But he added in his reasons for overruling the motion for a new trial that the jury was exceptionally intelligent and a careful body of men; that they visited the premises at the request of both the plaintiff and the defendant.

He approved the verdict by the judgment.

The plaintiff invokes the fact that the property owned by the defendant was bought for much less than the appraisement of the value fixed by the witnesses for the defendant.

The last deed of purchase dates from several years prior to the suit for expropriation.

Several of the witnesses testified that the property has of late ap - predated in value.

The plaintiff claims that by locating its track and by improving and draining its road, it reclaimed defendant’s property and removed from it the dampness and seepage.

We infer that this betterment was not considered as a basis for a claim against the defendant, prior to the suit for expropriation.

The witnesses greatly differ in their estimates of the value of the' property — i. e., the two lots and improvements.

It varies from twenty-eight hundred to less than five thousand dollars.

The witnesses for the plaintiff estimate it at much less. They fix the value of the lot, unimproved, at about four hundred dollars, and upon that basis of valuation the triangular lot expropriated would be of very little value, as it is quite small as compared with the lot from which it was taken.

If the preponderance of the testimony regarding the value of this lot were with the plaintiff, the calculation of plaintiff’s witnesses would not be an exclusive method of establishing value.

In estimating the value of a fractional part of a tract of land, the locality of the fractional part, the inconvenience it occasions to separate it from the main tract and the value it may have, without reference to the whole, may be considered.

“ Where there is evidence to sustain the verdict and the testimony is conflicting, the court will not interfere; and especially is this the case where the jury have viewed the premises.” Lewis on Eminent Domain, p. 824.

In addition to the testimony of witnesses — experts—as to value of the land; a lease made by the defendant to the plaintiff of the land sought to be expropriated, has some bearing upon the question.

The plaintiff, during three years, paid to the defendant fifty dollars per annum rent for the property.

It is explained that it was deemed preferable, as it was important to proceed without delay in laying the track, to enter into a lease with the defendant in 1891 than to incur the delay and expense of expropriating the property.

This explanation has great force; indeed, it is conclusive as to the first year of the lease.

But the plaintiff, in the contract of lease, reserved the right to cancel the lease at any time, and yet continued without attempting to exercise that right, to pay rental in an amount which proved that the property had considerable value.

The jury examined the property, after having heard the witnesses.

In expropriation proceedings juries have, in some respect, the character and authority of experts. Their verdict will not be annulled on appeal, unless manifestly erroneous. New Orleans, Fort Jackson & Grand Isle Railroad Company vs. Eugene Rabasse, 44 An. 178, 183.

Under the law and the evidence, the verdict and judgment appealed from seems to have done substantial justice.

Judgment for defendant, and affirming the judgment of the District Court, at appellants’ costs.

On Application por Rehearing.

The gravamen of plaintiff’s'complaints in the application for a rehearing are: That the court has not passed on the bill of exceptions taken by it to the judge’s charge contained in the record and referred to in the original brief;

That the court and jury decided issues not presented by the pleadings, and ultra petitem;

That the decision is not accordant with a former decision, New Orleans, Fort Jackson & Grand Isle Railroad Company vs. Mrs. Elizabeth Barton, 43 An. 171;

That the amount allowed is too large.

The District Court refused to charge the jury that any damages suffered by the defendant could be offset by any improvements or advantages accruing to defendant by reason of the construction of plaintiffs on or near the property sought to be expropiiated.

During the examination of the witnesses the plaintiff introduced evidence of a change made by it, in the location of a levee, of the drainage of property, and other improvements beneficial to defendant (it was alleged). The District Judge was not impressed by the evidence of drainage and improvements. He determined that whatever benefits were realized by the plaintiff were not chargeable to the defendant as an offset to the value of the property plaintiff sought to expropriate.

The issue was the “value of the land described in the petition with its improvements and what damages, if any, the owner would sustain in addition to the loss of land by expropriation.” Sec. 1481 R. S. The theory and conclusion of our original opinion were that the District Judge did not err in confining the issue under the terms of the statute and in refusing to give the instructions requested.

WITH REFERENOE TO THE DECISION BEINI ULTRA THE ISSUES OF THE CASE.

The facts are that although the defendant after the verdict discontinued her demand for damages in order to defeat plaintiff’s right of appeal; the jury had not allowed any damages, as will be seen by the verdict.

“ We fix the value of the land expropriated at $500.”

The defendant abandoned'a claim rejected by the jury, also one dollar on the value of the land expropriated.

The question of the value of the land remained an issue.

The defendant was not committed by an admission as to the value.

There was a defence interposed.

Even without a defence on the confirmation of a default in expropriation proceedings it would have been the jury’s function to assess the correct value of the land.

RELATIVE TO THE DECISION IN THE BARTON CASE CITED AND COMMENTED UPON, AND TO THE AMOUNT OE THE VERDICT.

The facts are not absolutely the same in the case cited and the case here.

It was in proof that the land in controversy in the Barton case • was part of the batture and subject to overflow every year.

In the case here there is no such damaging proof.

We thought and still think that the jury, commended by the District Judge as “ exceptionally intelligent and a careful body of men,” who had visited the premises in question at the request of both parties,” had correctly fixed the value of the land.

The verdict of the jury was unanimous.

In Telegraphic Cable Co. vs. Railway Co., 43 An. 522 and 523, this court said:

“ It has long been held in this State that the jury of freeholders, authorized by our laws to act in expropriation proceedings, have, to some extent, the character and authority of experts supposed to have some personal knowledge of the matters submitted to them, and authorized to rely in their opinions as well as on the testimony adduced before them. Their verdicts are, indeed, subject to review by appeal, and may be amended when manifestly inadequate or excessive, but they are entitled to great respect, and will Dot be interfered with, except in cases of gross or manifest error.” Citing Carrollton Railroad vs. Avart, 11 La. 190; Remy vs. Municipality, 12 An. 500.

Here, as in that case, the award has no feature “ of gross and manifest excess.”


source: Caselaw Access Project

license: Public Domain

text:
    No. 11,767.
    Widow and Heirs of Flore Nicolas Brigot vs. Augustine Eulalie Isabelle Brigot, Widow of D. F. Sisos.
    The appeal was from a judgment maintaining the plea of res judicata.

    The attack made by the plaintiff on the judgment was collateral.
    The proceedings and the judgment were apparently regular before a court of eomp.etent jurisdiction.
    It was in proof that a third person, who was an intervenor, had acquired an interest.
    The judgment could not be considered absolutely void.
    In so far as it may be voidable, the action to annul it must be direct.
    Without sustaining the plea of res judicata the judgment dismissing plaintiffs’'action is maintained as in case of non-suit.
    A PPEAL from the Civil District Court for the Parish of Orleans. King, J.

      G. V. Soniat for Plaintiffs, Appellants.

      Charles Payne Fenner, Curator ad hoe, for Defendant and Appellee.

      Charles F. Claiborne for Intervenors, also Appellees.
    Argued and submitted June 5, 1895.
    Opinion handed down June 17, 1895.
   The opinion of the court was delivered by

Breaux, J.

The plaintiffs are Petronille Daulin, widow of Flore Nicolas Brigot, Eugenie Marguerite Godeberte Brigot and Maurice Albert Brigot.

The husband of the first named plaintiff was the only issue of the marriage in 1813 of Nicolas Augustin Brigot and Adele Martin Godeberte.

He abandoned his wife in France and came to New Orleans.

He married here on September 12, 18L6, Anne Meullanotte, during the existence of his wife, Adele Godeberte, (who died in 1832.)

He acquired property and returned to France, where he died testate on the 27th December, 1847, leaving all his estate to Anne Meullanotte, and disregarding entirely his son, Flore Nicolas Brigot, to whom he did not leave anything by his will. An act of compromise was effected in France between this son and Anne Meullanotte in 1848.

Under the terms and conditions of this compromise the latter went into possession, as owner of a property No. 133 Royal street, of this city, and the former, Flore Nicolas Brigot, became the usufructuary of two other properties, 131 and 135 same street, and two natural daughters of Flore Nicolas Brigot, viz.: she late Adelaide Marie Brigot and Augustine Eulalie Isabelle Brigot, widow by Dominique Felix Sisos, the defendant here, became the owners of the property of which he, F. N. Brigot, had the usufruct.

Flore Nicolas Brigot married Petronille Daulin, one of the plaintiffs and appellants. It was stipulated in their contract of marriage that the survivor should inherit all the property of the predeceased party contracting.

The ipsue of this marriage were Eugenie Marguerite Godeberte Brigot and Maurice Albert Brigot, and appellants here.

Flore Nicolas Brigot died in 1870. His widow was appointed administratrix of the succession in France, but never qualified in Louisiana. Mrs. D. F. Sisos and her sister, Adelaide Brigot, who died since, and from whom the former inherited as universal legatee, claimed the two properties in Louisiana, which they alleged was theirs in absolute right, since the death of their father the usufructuary.

Mrs. Petronille Daulin, Widow F. N. Brigot, brought an action in France against Mrs. D. F. Sisos and her sister Adelaide. She contended that the act of compromise in 1848 was void; that these defendants were the adulteress children of Flore Nicolas Brigot; that legitimate children were born since the date of the donation; that Anne Muellanotte was an interposed person, and that the testator could not, under the law, dispose of the ownership of the property and at the same time retain the usufruct.

In this suit the act of compromise of 1848 was declared null and void by a judgment of the court of first instance, which was subsequently affirmed by the court of appeals. There were other proceedings in the court of France, at dates subsequent, all tending to affirm the correctness of the first judgment.

In 1893 the plaintiffs brought suit here for a recognition of their alleged rights under their judgment rendered in France, and fixing, it is urged, the status of all parties concerned.

This would involve a confirmation of all the proceedings of the foreign tribunals regarding the rights of the parties, and would necessitate, were plaintiffs’ prayer granted, the rendering of a judgment decreeing that the plaintiffs are the owners of the property in the same proportions as was decreed by the courts of France; a partition would have to be ordered and the defendants condemned to account for rents.

The defendant was cited through a curator ad hoc. He pleaded:

No cause of action.

Res judicata.

The last ground is based upon a judgment rendered in 1876 (in a suit brought in 1872). The suit was brought, in the first place, against C. Guillet, a person in possession.

In 1873 the late Fergus Fuselier, a regular practitioner at this bar, filed an answer as counsel for Widow Flore Nicolas Brigot (plaintiff in the case before us), as owner of half of the community and usufructuary of the remainder, also as tutrix of Eugenie Marguerite Godeberte and Maurice Albert, issue of her marriage with Flore Nicolas Brigot.

The petition and answer in this suit presented issues for decision similar to those argued and decided in the courts of France in the cases to which we have before referred.

Different views were entertained by the courts of Louisiana from those held by the courts of France.

We have substantially given account of the conclusion reached in the courts of the latter country (France). In the courts of the former, the plaintiffs in the suit, the defendants here, were recognized as the owners of the lots here in question. The decision was pronounced by Judge Lynch, of the Districo Court. The parties cast did not prosecute an appeal.

It follows as a conclusion that by thus recognizing the title as vested in them, validity was given to the act of compromise in question.

The plaintiffs deny that the judgment pleaded as res judicata is of any validity, and seek to have it treated as an absolute nullity on the ground that one Guillet, who had been cited, but who had no authority to stand in judgment, answered, disclaiming title.

Subsequently Cavaroc & Son were cited as agents, who presumably employed the attorney who appeared for the defendants, but of this there is no evidence of record.

The attorney, however, as we have before stated, appeared for the defendants, and not in the name of their agents. They allege here that the agent and the attorney were not authorized to represent the defendants in that suit, and that, if he was authorized, the attorney discontinued the reconventional demand.

To sustain their defence against the plea of res judicata, the plaintiffs offered the affidavit, duly authenticated, of Widow Brigot (mée Daulin), declaring that she had not authorized Fuselier, attorney, to represent her, as defendant. The court ruled that the affidavit was ex parte and inadmissible. Creditors of the defendant, Lamarque & Co., intervened in the case now before us for our decision, and alleged- that they were in possession under an antichresis granted by defendant in 1879. They also pleaded res judicata.

The District Court sustained that plea and dismissea plaintiffs’ suit.

From the judgment the plaintiffs prosecute this appeal.

Without direct proceedings to set aside the judgment plaintiffs were without right to question its validity. There is not an allegation iu plaintiffs’ suit assailing the validity and binding effect of the judgment.

Plaintiffs remained silent during many years; the estrangement between them and the title they now claim was complete. The judgment rendered contradictorily with counsel is not absolutely void.

Voidable judgments are binding until reversed by some direct proceeding. This principle is not merely an arbitrary rule of law established by the courts, but it is a doctrine which is founded upon reason a,nd the soundest principle of public policy.” Black on Judgments, p. 245.

The mere affirmation of a reputable attorney that he is the retained counsel in a cause has the sanctity of an oath. They, the attorneys at law, are the officers of the court, whose principal duty is to be true to the court and their client.

The record and the allegations of counsel import absolute verity as respects the authority to represent their clients.

This being the case the judgment must be presumed to have-been regularly obtained until the contrary is. shown in direct proceedings. A collateral attack is defined as an attempt to impeach the decree in a proceeding not instituted for the express purpose of annulling it. There was no allegation made by plaintiffs to impeach the proceedings in the case here.

If, for the purpose of a practical test, we were to suppose that the defendant had sold the property at the time the suit was brought to an innocent third person.

If the right to impeach defendant’s judgment collaterally were maintained, it would be possible, in the course of the trial, to introduce an ex parte affidavit, and thereby invalidate the judgment, the basis of the title.

The possibility of thus setting aside a solemn judicial declaration would, in certain instances, render the title to property quite unsafe. The property has not been sold, but creditors of the defendant have intervened. They have an antichresis under which they went into possession and collected the rents. They urge that any judgment against the defendant would impair their security.

The denial of the validity of the judgment and the tacit joinder of issue, arising without replication, do not offer opportunity to a defendant in exception to impeach a judgment collaterally in matter relative to evidence.

Whether it be regular or irregular, correct or erroneous, valid or invalid, it is not subject to collateral attack. Black on Judgments, Yol. 1, p. 246.

The ground urged by plaintiffs that replication is not permitted, we do not think would justify us, if we ■ were to disregard a rule “founded upon reason and the soundest principles of public policy.” Black on Judgments, p. 245.

The presumption of negation by defendant in rule, in exception or reconveutional demand, does not have the effect of changing the rule in question.

The ex parte affidavit in support of the assertions made at the time when it was offered in evidence that the attorney was not authorized, was not even the commencement of proof. It had none of the characteristics of proceedings taken contradictorily with parties in interest. It was only a sworn declaration offered without pleading or allegation of any kindv In the cases cited the evidence must have had some of the features of contradictory proceedings. The affidavits against the acts of attorneys, as not having been authorized, were in support of issues directly presented.

The judgment pleaded as res judicata is not, as urged by plaintiffs1 res inter alios acta.

The suit in which it was rendered was brought by the defendant against the plaintiffs for the property involved. The defendant (here plaintiff) in the first suit in which they obtained recognition of their title sued as heirs of Flore N. Brigot, the alleged author of their title, and presented issues contradictorily with plaintiffs here and defendants in 1876, when the judgment in question was obtained similar to those now raised.

The dismissal of the reconventional demand (in the first suit prior to 1876) did not include the whole answer, and was not as far-reaching in its effects, as an abandonment, as is now contended by the plaintiffs.

Two motions in the case in question, No. 10,009 of the Superior District Court, had been made by plaintiff’s counsel to strike out the reconventional demand.

Granted, that it resulted in a discontinuance of the reconventional demand, as urged by the plaintiffs, the fact remains that the answer, less that demand, was before the court, and that the attorney continued his defence of the case, and contradictorily with him a judgment was pronounced.

This is concluded upon the hypothesis, which must govern for the time being, that the attorney was duly authorized to represent the plaintiff.

The plaintiff, in addition, objected to the intervention filed on a number of grounds.

We will not consider them separately and in detail.

The petition of intervention was not as formal as it might have been. The grounds were set forth with sufficient particularity to enable the intervenors to prove their interest under their antichresis, and join the defendant in urging the plea of res judicata.

Counsel, in his brief, clearly and cleverly arguing the different phases of his cause, refers to the range, in a geographical point of view, of the litigation, and to the hearing given to it before judicial tribunals in two continents.

He urges that the decisions of the courts of the domicile of the respective parties in France should govern. Estoppel is pleaded, and the comity due to the decisions of' a foreign tribunal. These questions can not be determined in proceedings seeking collaterally to impeach a judgment which can not be utterly ignored.

We do not pass upon the plea of res judicata. We hold that the judgment can not be collaterally impeached.

It is ordered, adjudged and decreed that the judgment appealed from is affirmed, at appellees’ costs, in so far as it is a judgment of non-suit; and it is annulled and reversed in so far as it rejects plaintiffs’ demand.

Nicholls, C. J., absent.


author: Miller, J. McEnery, J.

text:
    No. 11,840.
    The Parish Board of School Directors vs. The City of Shreveport.
    The amounts placed on the budget for the annual expenses of a municipal corporation, when collected by the taxes levied for such expenses, must be applied to the purposes specified in the budget, and the corporation will be liable for any diversion of such amounts. 36 An. 636.
    Funds raised by taxation for such purposes are trust funds, and the prescription of one year will not protect the corporation from liability for the taxes thus collected.
    APPEAL from the First Judicial District Court for the Parish of Caddo. Taylor, J.

      T. O. Barrett, F. G. Thatcher and Albert H. Leonard for Plaintiffs, Appellees.

      M. B. Jones, City Attorney (Wise <& Herndon, of Counsel), for Defendant, Appellant.
    Argued and submitted June 8, 1895.
    Opinion handed down June 17, 1895.
    Rehearing refused June 27, 1895.
   The opinion of the court was delivered by

Miller, J.

The plaintiff sues for the amount claimed to be due by defendant under the provision for the support of public schools made on the annual budgets of the city of Shreveport for the years from 1881 to 1891, and alleged to have been collected. The defence is, the city was under no obligation to levy any taxes for schools, hence is not bound for the amounts budgeted, and prescription is also pleaded.

This controversy was before this court previously on the exception of no cause of action. On the issue then presented of the liability of a political corporation to the school board for the taxes collected for school purposes, and not paid over to the board or expended for such purposes, our conclusion was the liability existed. In the view of this court the liability arose from the fact that the taxes had been collected for the budget purposes; whether with or without express law directing taxes for schools was unimportant. We held after including in the annual budgets these school items of expenditure to be provided for by the taxes to be levied, and actually collecting from the taxpayer the taxes sufficient to defray the budgeted items, the City could not escape liability for the amounts thus collected by it for the schools. Parish Board of School Directors vs. City of Shreveport, 47 An. 21. Affirming the legal proposition presented, the city was left to any other defences it might have, but the case, save in respect to the budget provision of the years claimed to have been paid, and the defence that the amounts appropriated were only for school rents, the case is now before us on testimony not varying essentially from the allegations in the petition. Our previous decision controls the determination of this controversy, except to the extent of the modification supported by the testimony.

The provision on the budgets for each year were “ for schools,” “for school account,” “for school house account,” “for school house” except for the years 1889 to 1891, when the appropriations were varied in form to school rents. There is testimony, and it is insisted in argument, the City Council intended to provide only for the rents of school houses. We think the fair import of the terms used in the budgets must be accepted as indicating the purposes intended. As we appreciate the testimony the rents for the years 1889, 1890 and 1891, exceeded the budgeted amounts. For the other years in which the provision, in varied forms, was for school expenses, it is not disputed the amounts were required for the schools. There is no controversy as to the collection of the taxes for these purposes, nor is it denied that the city has not paid these amounts in full, but there remains unpaid the sums claimed in the petition.

We have given attention to the argument there is no obligation on the part of the city to the plaintiff, because there was no law to authorize the levy of a school tax. The law in authorizing a tax of ten mills for all purposes of city expenditure leaves these purposes to the discretion of the City Council. It is required that these purposes shall be stated in the budget, which, made up of all anticipated municipal expenditures, serves as the measure and as the warrant of the taxes to be collected from the taxpayers. In our view, the amounts collected by taxes. for any of the purposes stated in the budget, is to be deemed levied under the law, quite as effectively as if the taxation for that purpose was directed by a specific statute. The obligation of the city to pay the amount collected by taxes for the purpose stated in its budget arises, in our opinion, from the fact that the city has collected the amount from the taxpayers. We have here in New Orleans the same system as in Shreveport, of annual budgets for the estimated subjects of municipal expenditure, and the budget is the measure of the tax k> be imposed. True, the law directs New Orleans to include a certain amount for school purposes. In Shreveport the inclusion of such amount in the budget is left to the discretion of the council. . Whether the provision is required or left discretionary is, in our view, immaterial. If the provision is made and the requisite amount is collected the resulting obligation is to pay the amount to those entitled to the provision. The courts have recognized this obligation on the part of this city, and the same conditions apply to Shreveport. See Act 58 of 1879; Act 1882, No. 20, the City Charter, Sec. 64; Act No. 109 of 1882, amending Act No. 20 of 1882; Shotwell vs. New Orleans, 36 An. 938.

The amount collected by taxation for a specific purpose is a trust fund. The application of the fund for that purpose is usually enforced by mandamus. We can not see the application of prescription to protect the municipal corporation from liability for the funds thus collected and withheld. We are clear the prescription pf one year can not be sustained. We note, too, the contention that taxes can not be seized; all recognize that immunity, but the exception has no force to shield the city from a money judgment. That is all that is claimed in this suit — not its enforcement by seizure or in any mode. 2 Dillon on Municipal Corporations, Sec. 849 et seq.; Maenhaut vs. New Orleans, 2 Wood’s Rep. 108. As we understand the testimony the amounts in the budgets for 1884, 1886 and 1891 have been paid. The city should not be charged with any amount for these years and in this respect the judgment should be amended.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be amended so as not to charge the city with the amounts in controversy or any part thereof in the budgets of 1884, 1886 and 1891, and as thus amended it is affirmed, the costs of appeal to be paid by plaintiff.

Nicholls, C. J., absent.

On Application for a Rehearing.

McEnery, J.

In the application for a rehearing in this case it is stated that decree is in conflict with and overrules the cases reported in the 40th Annual,'p. 755, entitled The State ex rel. Parish Board of School Directors vs. Police Jury, and 42d Annual, p. 92, entitled The State ex rel. Board of Directors of Public Schools of New Orleans vs. City of New Orleans.

It is stated in the opinion that it was discretionary with the Council of Shreveport to levy the tax. Our meaning is that the city of Shreveport voluntarily collected the tax for school purposes. No town or city in the State has even a discretion to exercise the taxing power in behalf of public education; that is, the discretion is not such as when exercised it is binding on the taxpayer.

The taxpayer, having voluntarily submitted to a tax for school purposes, and having paid the same and placed it in the city treasury for such purpose, it becomes a trust fund, and the Oity Council was without power to use it for any other purpose. It would be as illegal and wrongful to use it for other purposes of city government as to thus divert any other fund, lawfully imposed and collected, specially devoted by the taxpayer for certain purposes.

Our decree merely announces that, whether lawful or not, the tax was voluntarily paid to be used in aid of the public schools, and could be used for no other purposes. That it was not called for does not prevent its use at a future time. If the taxpayers intended to use the assessment rolls as a means of a just imposition of the burden among them, the amounts unused should have remained in the city treasury for future use, and thus lighten the voluntary contribution which in succeeding years the taxpayers might impose upon themselves.


author: Miller, J.

text:
    No. 11,773.
    The Brooklyn Cooperage Company vs. The City of New Orleans et al.
    The importer of shoots or staves, already bent, so as to form a barrel; of barrel heads ready for insertion, and of hoops to be driven, is not to be deemed a manufacturer of a barrel merely because he substitutes machinery for the usual hand labor of setting up the staves in barrel shape, introducing the prepared headings, and driving on the hoops, first subjecting the staves and other material to a heating process, and the machinery and property thus employed is not exempt from taxation under Art. 207 of the Constitution.
    The exemption sought in this case distinguished from the exemptions recognized of manufacturers of articles of wood from raw materials. Martin vs. New Orleans, 38 An. 397; Carre vs. New Orleans, 41 An. 998, and similar cases.
    APPEAL from the Civil District Court for the Parish of Orleans. Theard, J.

      Thomas J. ¿femmes for Plaintiff, Appellee.

      E. A. O’Sullivan, City Attorney, and Henry Renshaw, Assistant City Attorney, for Defendants, Appellants.
    Argued and submitted April 24, 1895.
    Opinion handed down May 6, 1895.
    Rehearing refused June 27, 1895.
   The opinion of the court was delivered by

Miller, J.

The plaintiffs enjoin the collection of city and State taxes assessed on the buildings and machinery alleged to be employed by the plaintiff in the manufacture of barrels, kegs and hogsheads of wood, exempt from taxation under Art. 207 of the Constitution. The exemption claimed is denied by the defendants, and they appeal from the judgment of the lower court maintaining’the injunction.

The testimony is the plaintiffs import from the North and West, prepared material for the making of barrels. This material consists of the staves or sides, hoops and headings. The stave is dressed, jointed, and, as one of the witnesses expresses it, ready for use. The hoops also come prepared, as do the headings. The manufacture of these prepared staves and headings, on which the plaintiffs rely, consists in drying the material, setting them up in barrel forms done by hand; then a machine is used to make the shape of the barrel, followed by a heating process, and the hoops are driven on by a trussing machine, it is testified, to form more completely the barrel’s shape. After this, the barrel passes to a machine which ‘ ‘ gets ’ ’ the croze and chimes ready, and finally the 11 hoopers off ’ ’ shape up the barrel and turn it into the warehouse. The machinery used for these purposes serves for the hand labor usually performed, and doubtless is quicker. Turning from the processes indicatedinthe testimony for plaintiffs, other witnesses testifying to the work on this material state: the staves, heads and hoops are imported, the barrelraised or set up, then wound up, fired, “machinery works it off at the ends, puts the croze on, the cooper then sets the hoops on and finishes the barrel; ’ ’ machinery, the witness adds, is used in working the barrels off at the ends. The barrels thus made are for sugar and rice, and constitutes the business of plaintiffs conducted at their establishment.

The exemption of the Constitution is of machinery, cápital and property employed in the manufacture of furniture and other articles of wood. The case raises the question whether processes of the kind depicted in the testimony, which put into shape the parts of a barrel ready to set up, from staves, heads and hoops, already cut, shaped and prepared, is to be deemed the manufacture of articles of wood in the sense of the Constitution. Undoubtedly the plaintiffs’ machinery serves the purpose of setting up the prepared staves already bent for the purpose, inserting the heads, and putting on the hoops that come with the staves. But the component parts of the barrel are supplied and at hand, and whether the barrel is set up by manual labor or machinery, the processes can not, we think, be considered as the manufacture of an article of wood in any ordinary or legal sense of the word. The heating of the prepared staves, the putting on the prepared head, the driving of the hoops, are all necessary to the completion of the barrel, but not one nor all these processes constitute, in any ordinary significance, the manufacture of the article, nor does the additional fact that the barrel is held by machinery to receive the head, or hoops, or the heading, furnish, in our view, any better support to the claim that the plaintiff is a manufacturer.

It is familiar that exemptions from taxation are strictly construed. Our courts have held that doors, sashes and blinds manufactured from the raw material are exempt from taxation. Carre vs. City, 41 An. 996; Martin vs. New Orleans, 38 An. 398. So a cooper who makes barrels and hogsheads from rough logs and splits was held exempt, but that was the case of a license tax from which he was exempted as following a mechanical occupation. Const., Art. 206; City vs. LeBlanc, 34 An. 596. Again we held the exemptions applied to “ shooks ” manufactured from the rough timber. We find no warrant to increase these exemptions based on the processes performed by plaintiffs upon the staves, hoops and headings already adapted to be shaped into the barrel by ordinary hand labor for which plaintiffs substitute machinery.

We understand from the record that no hogsheads were made in the plaintiffs’ establishment, and hence no exemption in that respect is before us. Nor is it ux-ged that plaintiffs claim exemption for any business other than that we haye discussed. The assessment on lots, buildings, machinery is that called in question on the grouxid of the asserted exemption.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and that plaintiffs’ injunction be dismissed at their costs.


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    No. 11,616.
    Jambs A. Koehl et als. vs. Otto H. Schoenhausen.
    State and city business licenses furnish no defence against a suit to abate nuisances arising from the unauthorized uses made of the licenses. Wood on Nuisances, Secs. 748, 746, 751.
    The uses of such licenses that congregate crowds of disreputable people; lead to drunkenness, debauchery, noises and midnight arrests, preventing sleep, and presents to the view of neighbors and to the public lewd women, indecently attired and lascivious behavior of men and women, create nuisances of the most serious character, affecting the residents of the neighborhood. Wood on Nuisances, Secs. 1,15, 38, 39,542, 801.

      Such nuisances disturbing individuals in the enjoyment of their property, injurious to their rights and interfering with their peace and comfort, may be abated at the suit of the parties affected, although the nuisances prohibited by law and the ordinance are within the police power to suppress. Wood on Nuisances, Secs. 541, 542, 618,507; 36 An. 162.
    The writ of injunction in such eases, prohibiting the evils complained of, is authorized to be enforced by the penalty for disobedience imposed on the defendant, whenever and as often as the nuisances are produced arising from the unauthorized uses he chooses to make of his licenses. Wood on Nuisances, Secs. 619, 621, 645, 647; Code of Practice, Arts. 296, 308; Schoenhausen Applying for Certiorari, 47 An. Ante, 696.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

    Lazarus, Moore & Luce and Charles P. Drolla for Plaintiff, Appellee,
    cite: Wood on Nuisances, Secs. 1, 2, 16, 25, 29, 37 to 63, 662, 693; 36 An. 162; 108 U. S. 331.

      Thomas M. Gill for Defendant, Appellant,
    cites: 45 An. 1488; 31 An. 647; 28 An. 130; 38 An. 555; 44 An. 645; 33 An. 1013; 39 An. 1000.
    Argued and submitted March 28, 1895.
    Opinion handed down May 6, 1895.
    Rehearing refused June 3, 1895.
   The opinion of the court was delivered by

Miller, J.

The defendant appeals from the judgment of the lower court, making perpetual the injunction prohibiting him from conducting the concert saloon at the corner of Customhouse and Royal streets, and decreeing the establishment to be a nuisance.

The petition was filed by property holders, averring substantially that the female employees of the defendant dressed immodestly, enticed the men frequenting the establishment to drink with them, leading to indecent familiarities; that the establishment opened in the evening, remained open at night, devoted to drinking and debauchery of the women and men; that these excesses led to disorderly conduct, frequent arrests at night, occasioning unpleasant scenes at the entrance of the place and on the street, annoying to the residents and interrupting their sleep; that the fascinations of the establishments attracted vicious and disreputable people; that the theatrical performances there were indecent and could be seen from the street; that the women, with their lewd style of dressing, exhibited themselves so as to be seen from the premises of petitioners, or of some of them, were forced on their attention, and the petition contains other allegations tending to show that the place, the business conducted and the attendants constitutes a nuisance to the neighborhood.

On two of the corners where the establishment is located are new hotels erected at great expense,-adapted for the accommodation of lai’ge numbers of guests and receiving a fair share of public patronage; on another corner is one of the principal family grocex’y stores of the city; a short distance from this concert hall are furniture stores and other business establishments.

We have a record in this case of over six hundred pages. The testimony comes from residents, guests at the hotels, the hotel proprietors, the business people in the neighborhood, police officers and others. Here and there we find the statement that there are other disreputable places of the same character; from some of the police we have the subdued, but none the less significant expression that the place is a concert saloon, and that which takes place there is that pertains to a place of that character. Again we have the defensive testimony that the women employees have visited the hotels, and that goods have been bought in the neighborhood for the establishment. We take occasion to say that this testimony to our minds carries no significance of the slightest tolerance of the establishment on the part of those indicated by the testimony and against whom ic was directed. The hotels appear to be well conducted and highly reputable, and it is supposed that disreputable people may, perhaps, find entrance occasionally in any hotel without affecting the character of the house. As to the supplies said to be purchased for the establishment, there is in the record testimony that one of the business houses in the neighborhood refused to have any account with the establishment. It is in the record, too, that some of the neighbors consented to the location of this establishment. That was before the business was developed. We notice this species of testimony only, because it is in the record, not that we deem it' of pertinence in determining the controversy. If in that neighborhood there are similar places, it is equally true the street is a principal thoroughfare for the public, on the way to a large hotel, business houses, the courts and churches. The supposed tolerance attributed to some of the neighbors is not supported; if it were, it would be of little moment in the solution of the issue here. The other aspect of the testimony has had our careful attention. We do not propose to recapitulate it. We announce the conclusion it supports the allegations of the petition, both as to that which takes place within the premises, and as to that having more direct relation to the question before us — i. e., the public aspect of this licensed business. The appearance of disreputable women in the public approaches to the place; their character manifested by their conduct and dress; the assembling of bad characters about the building; the noises incident to drunkenness and boisterous enjoyment disturbing the peace and quiet of the neighborhood; the midnight arrests of disorderly women and men breaking the stillness of the period for sleep; the exhibitions of women in scant attire and the indecent familiarities forced on the observation of neighbors, and notwithstanding screens at the doors, still exposed to some extent, at least, to the public attention, all these and ocher externals of this place we consider established.

The defence is substantially chat the Revenue Act No. 150 of 1890, Sec. 10, Class 2, authorizes licenses of concert halls, where cancan, clodoche and similar female dancing are shown, and that defendant holds such licenses.

In our opinion there can be no question the uses by defendant of his licenses causes nuisances of the most serious character. Those uses collect disorderly crowds; lead to boisterous conduct; noises and midnight arrests, disturbing the peace; presents to the public view lewd women, indecently attired, and lascivious conduct, all instances of nuisance given in text-books and adjudicated cases. To mitigate the character of defendant’s business we find in the record testimony from witnesses who undertake to say the value of property in the neighborhood is improved by concert saloons, with all the methods belonging to them, brought to our notice. The erection of hotels and expensive business stores in the view of these witnesses, whose opinions are put before us, are not causes of improvement of property. We reject this testimony that concert saloons of the character in question here are aids in tending to increase values. We reach the other conclusion, indicated by other testimony, that such establishments menace values. The depreciation of the property of others arising from the use one makes of his own, is another element of nuisance. In every point of view, it is our conclusion, defendant’s establishments fall within the classification of nuisances in legal as well as in ordinary significance. See Wood on Nuisances, Sees. 1, 15, 72, 38, 39, 52, 542, 801.

It is urged, if a nuisance it is licensed, hence is beyond interference by the courts. The answer to this contention is that the business carried on is plainly not covered by the licenses. Concert saloons do not imply, least of all express, in the faintest sense, the uses of this establishment; nor do clodoche, cancan or similar female dances, to use the words of the statute, whatever the significance of clodoche and the cancan, include the conduct and manifestations in defendant’s premises and other attendants of the uses of his licenses. The public scandal, against which this suit is directed, does not arise from female dancing permitted by the licenses. The record points to other and different causes of the complaints in the petition. It may be added that when licenses are invoked to protect evils of the character under consideration here the licenses are not to be strained. We think it is entirely safe to conclude they have no tendency to authorize the uses the defendant claims to be within the scope of the statute. Wood on Nuisances, Secs. 38, 39, 753, 742, 756 and 751.

Nor do we think there is any force in the contention that because of the licenses defendant holds, the citizen has no action to abate the nuisance claimed to be protected by the license. There is in this the intervention of the Attorney General joining the petitioners. Without it we think the right of action of the petitioners is complete. Wood on Nuisances, 619, 625, 645, 647, 653, 655; Blanc vs. Murray, 36 An. 162.

The judgment of the lower court enjoins defendant from conducting the business of a concert saloon. But his licenses authorize that business. As long as that legislation is on the statute books, it is obligatory on the courts. The statute supposes the concert saloon business to be reputable. It is the legislative judgment courts can not question. It is by perversion from the business of concert saloons, authorized by the statute, that they become disreputable. In other words, it is the uses of defendant’s premises that creates the nuisances. The prevention of those uses is within the judicial control. We take occasion to say they are equally within the control of the police authorities. We will have to reverse the judgment, but we affirm the entire power of the courts to restrain, with the full vigor, and to the utmost extent of the law, all violations of public decency and of order, attempted under the cover of licenses extending no shadow of such immunity as is claimed for defendant in this case. If the gross improprieties within the defendant’s premises are stopped, and they are within his control, there will be, we think, no gathering of disreputable people or noises, or midnight •arrests, disturbing the peace of the neighborhood, nor indecent exhibitions forced upon the public attention. The court, in determining the question of nuisance, directs its inquiry to the inconveniences, annoyances and scandals that affect the defendant’s neighbors and the public using the street, The remedy administered must, necessarily, be applied to the causes that bring about the evils of which the petition complains, and these causes are in the methods permitted by defendant within his premises'. The judicial prohibition is of those methods; will confine the defendant’s business to that described in his license, and will not tolerate its abuse and perversion to purposes not within its scope. We think the lower court will have no difficulty in enforcing, if the occasion arises, the observance of its injunction, so as to prevent acts within or without the building, tending to violations of peace and decency.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, that the preliminary injunction be made perpetual, restraining the defendant from conducting in any manner not within the scope of his license and tending to disturb the peace or produce scandals in the neighborhood, or prohibited by the ordinances and laws, and that plaintiff pay costs.

On Application eor Rehearing.

In this case the decree is amended, so as to direct the costs of the appeal to be paid by plaintiffs, and with this amendment, the rehearing is refused.


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    No. 11,794.
    W. L. McNeely, Tutrix, vs. J. H. McNeely, Executor, et al.
    The husband is presumed to be the father of the child born of the wife during the marriage, and as separation from bed and board does not dissolve the marriage, it follows that the child, to which the mother not divorced gives birth after the separation, is within this presumption of paternity the law fixes on the husband; as one of the leading commentators puts it: “ Comme la separation du corps ne dissout pas Ie marriage, il suit de la, que la presumption de paternitie etablie par Particle 312 subsiste encore.” Civil Code, Arts. 184-155, 159-136; Code Napoleon, Arts. 312, 306, 310; i Duranton, p. 3C6, par. 632: Le jugmentdeseparation.de corps laisse qui subsister le marriage ne peut faire cessa Ie presumption de paternitie de l’enfant concu depuis la separation. 2 Toullier, p. 124, par. 811; 2 Boilleux, commenting on Art. 313, C. N., p. 72.
    This presumption of the paternity of the child of the wife, born since the separation from bed and board, is not conclusive; the husband is permitted to dispute it by suit; but if the paternity of the child is not thus disavowed by the husband or his heir, the presumption that the husband is the father becomes absolute, and the legitimacy of the child placed beyond question. Civil Code, Arts. 188,191; Napoleon Code, Art. 313, as amended by the law of 1850, Art. 318; lDalloz, Code Annote, Art. 313; 2 Boilleux, 79, 73; 3 Laurent, p. 480, par. 376 ; 2 Marcade, commenting on Art. 318, as to form action on desaveu; 2 Boilleux, 87, 88; 1 Rob. 585; 44 An. 441.
    The Code, in declaring the legitimacy of the child, born three hundred days after the separation from bed and board, may be contested by the husband, de.fines the extreme duration recognized by law of the period of gestation which, with certain exceptions, must elapse to permit of the dispute by the husband of the legitimacy of the child, but the period beyond the three hundred days to the birth of the child of the mother separated from bed and board, not divorced, is unimportant on the question of legitimacy; the requirement of the law on that issue is that the husband, or his heir, shall disavow the paternity of such child by suit, .and maintain the disavowal by proof. Civil Code, Arts. 188,191, and authorities cited above.
    A PPEAL from the Fourth Judicial District Court for the Parish of Grant. Weaver, J.

      White & Thornton and R. J. Bowman for Plaintiff, Appellant,
    cite: C. C. 143; 11 An. 657, 853; O. C. 210; 44 An. 433, 441; 12 An. 853; 1 R. 581.

      W. C. Roberts and R. E. Milling for Defendants, Appellees,
    cite: O. C. 186, 187; 30 An. 1300; 44 An. 441.
    Argued and submitted June 6, 1895.
    Opinion handed down June 17, 1895.
    Rehearing refused June 29, 1895.
   The opinion of the court was delivered by

Miller, J.

The plaintiff, the mother and tutrix of Ross McNeely, alleged to be the child of -Ludlow McNeely, deceased, sues for the recognition of the child as the sole heir of the deceased, and to have annulled his last will, by which he constituted as universal legatee his brother, J. H. McNeely, the defendant. The will is assailed as not conforming to the legal requisites of nuncupative testaments under private signature. The defence is substantially that the will is valid, and a denial of the alleged paternity of the child. From an adverse judgment plaintiff appeals.

The deceased was separated from bed and board from his wife on the 23d May, 1889. The child, on whose behalf this suit is brought, was born on the 10th April, 1890. The deceased, by his last will, bequeathed all his property to his brother, and died on the 29th April, 1893. The paternity of the child was never disavowed by the deceased, and the question is whether the legitimacy of the child can be disputed by the universal legatee.

The Oode declares that without proof of cohabitation between the spouses since the separation from bed and board, the legitimacy of the child born of the wife three hundred days after the separation may be contested. This is the supposed presumpt.on relied on by the defendant, the universal legatee, the child whose legitimacy is disputed having been born three hundred and fifteen days after the judgment of separation. In estimating the force of the presumption claimed by defendant, the expression “may be contested ” arrests attention as implying that more is required than the length of time to make effective the presumption. Accordingly, in a succeeding article, it is declared that in all cases specified in the Oode in which the presumption of paternity ceases, the father, if he intends to dispute the legitimacv of the child, must do it within one month after the birth, or two months if absent when the birth occurs, or he shall be barred from ever making the objection. A delay of two months is granted the heir of the husband, if he dies before the delay allowed without the objection. Oivil Oode, Arts. 188, 191. It would seem, therefore, that the presumption invoked by the defendant utterly fails, if, as in this case, the husband dies without disputing the legitimacy of the child. Our Oode does not define the disavowal required of the husband. The Napoleon Oode left no doubt on this point, nor is there any under our jurisprudence. The French commentators distinguish between the action to contest legitimacy given to all interested, when, for instance, that status is assumed when no marriage existed, and the action en desaveu” given to the husband or his heir. 4 Marcade, p. 18, par. 16. In either case, suit was required. The Napoleon Oode uses the expression “ desavouer,” “re■clamer,” “ contester,” and to remove all question on the point, declares : Toute acte extrajudiciare contenant le desaveu de la part du mari ou de ses heritiers, sera comme non avenu s’il n’est suivi d’une action en justice dirigée contre un tuteur ad hoc donné a l’enfant et en presence de sa mere.” Napoleon Oode, Art. 318. Our decisions have been in accordance with this view. Tate vs. Penn., 7 N. S. 553; Eloi vs. Mader, 1 Rob. 584; Dejol vs. Johnson, 12 An. 855; Saloy case, 44 An. 435. It is, in our view, clear, tinder our Oode, that the legitimacy of the child of the wife not divorced, born after the judgment of separation of bed and board, can not be disputed, unless the suit is brought by the husband to disavow that legitimacy.

Our conclusion is fortified on this point by an examination of the articles of the Napoleon Oode. That code announces, “ L’enfant concu pendant le marriage a pous pere le mari,” and that presumption is maintained except in specified cases. That code as it originally stood took no account of separation from bed and board not followed by divorce, as disturbing the presumption of paternity. Napoleon Oode, Sirey, Art. 313. Article 313 now has this addition: “ En cas de separation de corps le mari pourra desavouer l’enfant qui sera né trois cents jours apres 1’ordinance du president * * * l’action en desaveu ne sera pas admise s’ il y a en reunion de fait entre les epoux.” Dalloz les Oodes Annotes, Art. 313. So under that code as under ours the action to disavow is essential, and birth after separation from bed and board merely is not enough to stamp the illegitimacy. See Arts. 312 to 316, Napoleon Oode.

The argument of defendant is based on the theory that the child in this case is without and not within the presumption of the paternity of the husband of the mother. In this connection we have considered all the authorities including Art. 136 of our Oode cited by defendant, which declares the judgment of separation puts an end to the cohabitation of the spouses. Of course, no action to disavow is requisite in those cases when the presumption of paternity absolutely ceases. 1 Robinson, 585, and Boilleux and other authorities there cited. But when we turn to our Oode and the analogous articles of the Napoleon Oode, we find the qualification of the presumption arising from birth after separation from bed and board, that the action to disavow must support the presumption.

This view of the controversy dispenses us from the examination of the testimony tending to show the child was not of the father and that of the contrary bearing, administered on behalf of defendant. The legitimacy of the child rests on another and impregnable basis.

On the question of the will in nuncupative form by private signature, we note the contention of plaintiff that there is no proof the testator caused it to be written. As we appreciate the testimony irrespective of that objected to, it is shown the testator presented the will to the witnesses and declared it to be his will. Oivil Oode, Arts. 1581, 1648. We think the legal requisite was fulfilled. Wood vs. Roane, 35 An. 865. But the will is reducible to the disposable portion. C. C., Art. 1493.

We think it best to reserve for future adjudication the questions of revenues to be accounted for, debts paid and improvements on the property claimed to have been made by defendant. These and other questions of account can best be adjusted when the executor files his account.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided, annulled and reversed, and it is now decreed and adjudged that Ross B. McNeely be and he is hereby decreed to be the legitimate child of Ludlow.McNeely, deceased, and his wife, M. L. McNeely, and as such entitled to the legitime one-third of the property left by said deceased; that the will of said deceased in favor of his brother, J. H. McNeely, be and is hereby decreed to be reduced to the disposable portion, two-thirds of said property; that all questions of rents or revenues, improvements and debts, paid or to be paid, be reserved for further proceedings in the lower court, and that defendant pay costs.


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    No. 11,779.
    Joachim Gaude vs. C. C. Williams.
    The sale of a plantation with reservation of a lot one hundred and twenty feet square adjacent to other designated property can not be made to embrace other lands not adjacent.
    The dividing line was, in so far as relates to deeds properly located at the time the lot was reserved, along the railroad line.
    It can not consistently with the deeds of sale be removed from that line.
    It was designated at the time so as to include the land on which was defendant’s store building.

      Tbe court holds that it must run as required by the description in the deed.
    It being manifest that error was committed by the defendant and one who preceded plaintiff as owner of the latter’s lard, in locating the lot not adjacent to the railroad, the prescription, therefore, of ten years, does not apply.
    The defendant refused to have the boundaries fixed; costs follow the judgment.

      A PPEAL from the Eighteenth Judicial District Court for the i V Parish of Lafourche. Oaillouet, J. ■

      Beattie & Beattie for Plaintiff, Appellee.

      Olay Knobloeh & Son for Defendant, Appellant.
    Argued and submitted April 25, 1895.
    Opinion handed down May 6, 1895.
    Rehearing refused June 27, 1895.
   The opinion of the court was delivered by

Breaux, J.

This is an action of boundary instituted by the plaintiff to ascertain and fix the limit of his land from the land adjacent owned by the defendant.

The defendant opposed the survey, and contended that the boundary lines were fixed more than ten years prior to the suit; urged that he was a possessor in good faith, and invoked the prescription of ten years.

Plaintiff’s title through mesne conveyances descends from the defendant.

From sale by the defendant in the year 1869, to his vendee, he excepted a lot of one hundred and twenty feet square, and identified it as adjoining the track of the railroad, now the property of the Morgan Louisiana & Texas Railroad, on which his store was located. As an incident of the suit a portion of the lot defendant reserved is in contestation.

A number of years subsequent to the sale the defendant constructed another building for a store.

Charles Espenan, now dead, one of plaintiff’s authors, was the proprietor of the place (owned by the plaintiff) until April, 1886.

He transferred it to Couteux.

The latter sold one-half of the tract to Charles Gaude in the year 1887, and in 1890 the other half to F. Justin and Joachim Gaude, which is the portion now owned by the plaintiff.

In the different deeds of sale a plat of survey annexed to the sale, passed before Charles G. Andry in 1884, under which Espenan became the owner, is referred to for description of the property. The lower line of the lot in question is represented as the upper line at that point of the railroad track.

While Espenan was the owner of the place now owned by the plaintiff, with the former’s consent, the defendant had a fence built on his lines, as he evidently thought.

A plat of a recent survey offered in evidence shows three lines parallel with the railroad track.

One of these lines is thirty-five feet from the centre of the track, the other seventy-five and the last one hundred feet.

Many years ago the railroad company made embankments with earth taken from a place since known as a barrow pit. This pit extends some distance along the railroad, and has a width to about where is the one hundred foot line claimed by the railroad. A few feet above and along the pit there was during many years a fence.

If the line of fence be extended to the Bayou Lafourche as the correct line dividing the defendant’s lot from the railroad track, defendant’s upper line will encroach upon the land of plaintiff. If, on the other hand, the line bs drawn parallel to and within a few feet of the track,“’the difference in measurement, if. any, between the plaintiff and the defendant will be considerable.

The District Judge decided that the lower wall of defendant’s store building should be the starting point, it being the building and grounds reserved by the defendant.

From this decision the defendant appeals.

The line of the defendant is contiguous to that of the upper line of the railroad. No other line can be drawn without disregarding the description in the deed. The evidence upon that point is clear and conclusive.

The difficulty arises in discovering marks designating the limit.

After searching the records, it seems that no written title has been discovered, which can throw light upon the limit of the railroad’s right. Many years ago, without having to resort to proceeding of expropriation, and presumably with the consent of the owners, the railroad laid its track at that place. The result is that the precise Width of the right of way is not known. The estimate based upon the original right varies from thirty-five, fifty, to more than one hundred feet from the road bed centre. At a time when the right was undefined.

The limit can not be extended on one side without assuming that the railroad company held by prescription.

However perfect its right may be, we would not be justifiable in determining that the railroad has a prescriptive right. The lapse of time alone is not sufficient to establish the right. Courts can not supply the plea, and it is of no avail until invoked as a means of defence or attack and determined. In justice to defendant’s counsel we desire to state that they have made no such useless plea. We only refer to prescription in order to supplement it with the statement that we would not be disinclined to remand the case to ascertain limits if evidence of expropriation, sale or donation was within reach.

We return to the deed, in which the defendant reserved his lot, and find as a fact that he indicates it by “a store occupied by C. C. Williams and having a front of about one hundred and twenty feet by one hundred and twenty feet in depth,” above adjoining the railroad. He was part owner of the building at the date of the sale, and occupied it as a store.

The mark was selected by the defendant, the selection was placed of record, and is now in the absence of any charge of error or fraud determinative of his right.

It can not be concluded that the store building was not included within the limit, in the face of the positive description to the contrary. It is urged that the fence, under which the defendant possesses, was placed where it is with the consent of a previous owner of plaintiff’s tract of land, about fifteen years ago.

Under any theory of the ease, adopting any of the lines, the fence can not be the limit. It is indicated on the plat by the letters G. S. T. R. The nearest point of the enclosure to the outer line of the railroad track is a distance of nine and one-half feet, and the line from that point, instead of running parallel to the railroad, diverges from its outer line and leaves a space irregular in shape, which manifestly the parties did not intend to leave between defendant’s lot and the railroad line.

Moreover, it is not the description for which the deed calls. The error is manifest and gives no support to the prescription of ten years.

The principle announced heretofore, that a mistake of this kind neither destroys title nor confers title, applies.

Owners are not bound by a consent regarding boundaries, fixed by themselves in error; without having left the matter to experts. Gray vs. Couvillon, 12 An. 730, 732.

The question of costs remains for our determination. The defendant was condemned in the District Oourt to pay costs of suit, and the plaintiff to bear half of the costs of survey and establishing the lines.

The defendant having denied the necessity of an action to settle the boundary, owes costs of suit. Tircuit vs. Pelanne, 14 An. 215.

It is therefore ordered, adjudged and decreed that the judgment is affirmed at appellant’s costs.


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    No. 11,822.
    The State of Louisiana ex rel. The Louisiana Construction Improvement Company vs. John Fitzpatrick et al.
    The duty is imposed on the Commissioner of Streets to see that produce and goods landed on the wharves are laid as near as possible to the paved part of the levee; also to have removed obstructions and encumbrances.
    The performance of that duty need not, necessarily, be preceded by his order to remove all goods and wares to warehouses, at the owners’ expense, forty-eight hours after they are discharged on the wharves.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      James R. Beckwith for Relator, Appellant:
    In any public statute where power is given to public officers to do any public act in permissive language, as that they “ may ” do the duty, or act, or thing, the language will be regarded as peremptory whenev.r the public interests or individual rights call for its exercise; in all such eases, the language, though permissive in form, is, in fact, peremptory. Supervisors vs. United States, 4 Wall. 435; Galena vs. Amy, 5 Wall. 705, 709; Potter’s Dwarris, 220, with note; Sutherland on Statutory Laws, p. 597.

      E. A. O'Sullivan, City Attorney, B. MeCloskey, of Counsel, for Appellee :
    Where a contract with a municipal corporation is susceptible of two meanings, the one restrictive and the other extending the powers of the corporations, that construction is to be adopted which works the least harm to the State. The Law of Incorporated Companies Operating Under Municipal Franchises, Vol. 2, pp. 219 et seg.; Stein vs. Bienville Waterworks, 141 N. O. 68; 3 Wall. 531.
    The Legislature can not part with any of the police powers of the State, which are matters affecting the public health, morals, public convenience, etc. Farmers Loan and Trust Co. vs. Stone, 30 Fed. Rep. 270.
    A municipal corporation is but a subordinate branch of the government, but represents it in a limited district for special purposes. Chisolm vs. City of Montgomery, 2 Woods, 584.
    Where the statutes are couched in words of permission or declare that it shall be lawful to do certain things or provide that they may be done, their literal significance is that the persons, official or otherwise, to whom they are addressed are at liberty or have the option to do these things or refrain at their election. Sutherland on Statutory Construction, 593, 594.
    A remedial statute must be construed largely and beneficially so as to suppress the mischief and advance the remedy. And if its words are not clear and precise such construction will be adopted as shall appear the most reasonable and best suited to accomplish the object. A construction which would lead to an adsurdity will be rejected. 38 Ala. 674; 60 Wis. 133; Sutherland on Statutory Construction, 1523.
    Argued and submitted May 25, 1895.
    Opinion handed down June 3, 1895.
    Rehearing refused June 27, 1895.
   The opinion of the court was delivered by

Breaux, J.

The intent of the Council of the city of New Orleans, as expressed in an ordinance adopted in 1880, authorizing the administrator of commerce to order the removal of produce and goods from the wharves and levees forty-eight hours after the receipt or discharge of the cargo, is before us for interpretation and construction.

After notice by that officer to the owners or consignees, if they failed to comply with the order, the language of the ordinance is: "The administrator of commerce shall take possession” of the goods and wares and store them at the expense of the owner.

In the second section of the ordinance it is provided, substantially: If the name of the owner of the property is not disclosed, the officer is authorized to dispense with the notice prior to removal.

The duties of the administrator of commerce are imposed on the commissioner of public works under the city charter of 1882. The latter is the successor with authority in the premises.

The relator, as lessee, whose term of lease dates from May, 1891, complains of the failure of the commissioner ef public works and of the Mayor to enforce that ordinance, and brings this action for an alternative writ of mandamus to compel the former, the Mayor, to bring about the enforcement of the ordinance, and the latter, the commissioner, to perform the duty imposed upon him to issue needful notices to the owners, shippers or representatives of goods, wares and merchandise, and to use the means provided by the ordinance to enforce observance by owners and others interested. The respondents urge in their defence that the functions of the Mayor and commissioner of public works are defined, and that upon the failure of the latter to perform his duty he can be held upon his bond.

They controvert the allegations of plaintiff and pray that the mandamus be refused.

The vice president and general manager of the plaintiff corporation testified as to the condition on the wharves and as to demands for the enforcement of the ordinance.

Contra: the commission testified for respondents and denied the charge of negligence.

The testimony of these two witnesses was the only testimony heard save certain ordinances of the council, germane to the issue introduced in evidence, and the contract of lease between relator and the city, and a correspondence between the former and the mayor and commissioner, running through a number of months, in which are portrayed the grievances of the relator, and the varied disagreements and differences between the relator and the respondent.

From a judgment dismissing the provisional writ and refusing to grant the application, relator prosecutes this appeal.

A duty is imposed upon the commissioner of streets to require that all products and goods landed on the wharves be laid as near as possible to the paved part of the levee, approaching the street.

The ordinance is equally as positive regarding obstructions and encumbrances on the bank of the river.

The commissioner is given full power to enforce the provision of the ordinance. If, in order to carry out the provision of the ordinance, it becomes Deeessary to order the removal of the produce,, goods and wares, after the forty-eight hours in question, he is vested with authority to act.

The ordinance in regard to this authority — i. e., to remove the goods after forty-eight hours — is not expressed in mandatory terms.

“Duty” and “shall” are the words used and applied; except as to the preliminary order to remove. Here the commissioner is not commanded, but he is “authorized.” If necessary to accomplish the purpose of the ordinance, he may require the immediate removal after the time specified in the ordinance. '

The law affects large public interests and it requires, as a condition precedent to the removal of all goods and produce to warehouses, that some discretion should be exercised.

He “ may,” but no provision has been made that he “shall” order the removal of the goods and produce (after forty-eight hours).

The dictates of reason and the suggestion of experience do not support the strict construction placed by the relator upon its contract of lease regarding the forty-hour clause of the ordinance, adopted many years prior to his lease, and the enforcement of which clause was attempted only once we are informed, many years ago.

It was surely not within the contemplation of the council to have pronounced offending goods all goods on the wharves forty-eight hours after the landing and discharge without regard to the necessity of clearing the wharves or the advisability of extending the time of removal.

It would follow, if the authority given to the commissioner to order the removal was mandatory, that all produce, goods and wares would have to be hauled away and stored immediately after the two days in question.

Whether the removal is necessary or not, not an article of any kind would be permitted to remain on the levee. We do not think that such is the sense of the ordinance.

We do not understand that the respondents absolutely refuse to act and decline altogether to enforce the ordinance.

If they are negligent or if they misconstrue the terms and conditions of the lease, it is not the purpose of the writ to redress special acts of negligence or to have disputed clauses interpreted, save that relating to the removal of goods after forty-eight hours. This clause only is invoked as a remedy.

The first section of the ordinance is taken by the relator as imposing an imperative duty on the officer named, under the “ authority” of the ordinance with which he is entrusted. This is the extent of the relief asked, and which we must decline to grant.

This being the case, we are not called upon to pass upon questions regarding obstructions on the wharves and the removal of goods which may have remained on the wharves un unreasonable length of time. Such is not the issue.

The officer is vested with certain discretion, not to unnecessarily haul away and store goods in warehouses at the risk and expense of. the owners.

It does not follow that he can overstep the bounds of his authority.

If he does, there is ample remedy without divesting him of discretionary authority to be exercised in the interest of commerce.

The judgment appealed from is therefore affirmed.