author: McEnbry, J.

text:
    No. 10,937.
    Simpson & Vizard vs. People’s Ice Manufacturing Company.
    Simpson & Vizard were the officers, the latter president of a corporation. They owned bonds of the corporation, which were issued while they were officers of said corporation. They foreclosed the mortgage on the property of the company securing the bonds and purchased it.
    Tax liens and privileges were recorded for taxes due when they were officers. They took a rule to cancel them. Held that they were not estopped from disputing the existence of the tax, because they liad not as officers of said corporation paid them. The corporation was a distinct entity from them as individuals, or as a commercial firm of Simpson & Vizard.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

    Plaintiffs unrepresented in Supreme Court.

      W. B. Sommerville, Assistant Oity Attorney, and Carleton Hunt, City Attorney, for City of New Orleans, Defendant in Rule and Appellant.
   The opinion of the court was delivered by

McEnbry, J.

Messrs. Simpson & Vizard, a commercial firm composed of John F. Simpson and Anthony Vizard, were the holders of certain bonds issued by the defendant company, and which were secured by mortgage on certain property belonging to the People’s Ice Manufacturing Company, defendant.

Mr. Anthony Vizard, one of the plaintiffs, was president of the People’s Ice Manufacturing Company.

Mrl John F. Simpson, the other plaintiff, was a stockholder of the company.

Messrs. Simpson & Vizard caused- the property of the company to be seized and sold under executory process, and they, the plaintiffs, bought it.

Thereupon, plaintiffs filed a rule to cancel city taxes and the liens and privileges securing same for the years 1886, 1887, 1888, 1889, 1890 and 1891, on two grounds:

1. Because of prescription.

2. Because the property had been engaged during that time in the manufacture of ice, more than five hands being employed in the factory.

The rule was made absolute as to the taxes, liens and privileges for the years 1889 and 1890.

The rule was discharged as to the city tax of 1888.

And it was made absolute, as to the liens and privileges only, for the years 1886 and 1887, reserving to the city the right to collect the taxes for those years from defendant.

From this judgment the city prosecutes this appeal.

The proposition of the city is that plaintiffs are not entitled to the relief sought, as Anthony Vizard was president of the company and John F. Simpson was a stockholder in the same, and that it was their duty to see that the taxes were paid, and that they can not take advantage of their own wrong. That the taxes of 1886, 1887 were due anterior to the time of signing and issuing the bonds.

Simpson & Vizard, as a commercial firm, was a distinct entity from the defendant corporation.

Their acts as officers of the company were distinct from their acts as members of the commercial firm of Simpson & Vizard.

Their official acts could not estop them, when acting in their individual capacities or as members of a commercial firm.

Judgment affirmed.


source: Caselaw Access Project

author: Brbaux, J.

license: Public Domain

text:
    No. 11,010.
    Parish of Concordia vs. Natchez, Red River & Texas Railroad Company.
    Police juries liave the power to regulate the direction, the making and the repairing of the roads, bridges, causeways, dikes and levees.
    They also have authority to cause to be opened such ancient natural drains as have been obstructed by the owners of the adjacent lands in points of land on the Mississippi or other water courses divided among several proprietors, also to adopt a system of drainage.
    The right sought to be vindicated is not included in any of these powers.
    The police jury has no authority to institute suits to enforce a servitude by a • servient estate or to have embankments leveled, in matter of a private natux*e and not included in its powers.
    Prior laws are not repealed by subsequent ones unless by positive enactments or clear repugnancy.
    They should, if possible, be considered and construed together and their differences ' reconciled.
    APPEAL from the Ninth District Court, Parish of Concordia. Young, ./.

      Luce & temle for Plaintiff and Appellant:

      1. The power is vested in the police juries of the respective parishes over drainage, and to remove obstructions to natural drainage of the lands along-water courses of the State and the Mississippi river. R. S., See. 2748; 13 La. 114; 5 An. 424; G An. 97; 12 An. 554; 40 An. 425.
    2. The division of parishes into drainage districts, as provided under Act 107 of 1888, Is not mandatory, and does not by implication repeal statutes vesting power in police juries for drainage purposes. 13 An. 329; 20 An 140; 24 An. 1(56.

      Elam & Dagg for Defendant and Appellee.
   The opinion of the court was delivered by

Brbaux, J.

The police jury of the parish of Concordia instituted this suit against the defendant company for the purpose of having removed all obstructions and embankments and closing drains alleged as natural; these drains being sloughs, bayous and low places, alleged as having been closed by defendant’s railroad embankment.

Plaintiff avers that the drainage of certain plantations, especially of the five plantations, designated by name, viz., Concordia, Fletcher, Hellena, Panola and Clearmont, is obstructed and damaged, and that at times these plantations are flooded and thereby made uncultivable.

That the obstructions also impede the flow of water and the drainage of other plantations than those named, which are also thereby damaged.

That these plantations front on Lake Concordia, now a part of the Mississippi river, and drain through the obstructed places south or southwest of defendant’s railroad embankment into Crocodile bayou and Red river.

That the waters from several streams are obstructed and impeded by this embankment, thereby causing great damage.

Petitioners pray that all obstructions and embankments closing the natural drains be removed.

The owner of one of these plantation's, the Helena, is also one of the parties to the suit, personally and as president of the police jury.

Defendant’s exception, which was sustained by the court in so far as the parish was concerned and overruled as to the other plaintiff, presented as grounds that the police jury has no interest in the suit and that in matter of drainage its authority is limited to the power delegated by Act 107 of 1888, and the amendment thereto, Act 83 of 1890. The defendant also alleges that plaintiffs have no cause of action.

Police juries have the power to regulate the direction, the making and the repairing of the roads, bridges, causeways, dikes and levees.

They also have authority to cause to be opened such ancient natural drains as have been obstructed by the owners of the adjacent lands in any town, or when a point .of land on the Mississippi, or other water course, shall be divided among several proprietors, and to cause any water course which is not navigable to be filled for the purpose of a highway; and “whenever, on application made by “ more than twelve inhabitants of a town, suburb, or other place “ divided into house lots, or when a point of land on the Mississippi “ or other water course shall be divided among several proprietors, “ it shall be found necessary to dig one or more common draining ditches, the said juries shall have the power to ordain that the “ said ditches be dug at the expense of the owners of the lots, and “ that the expense be borne by a contribution among the owners, to “ be levied in such manner as the jury shall prescribe, saving to “ individuals or persons aggrieved the right of suing for the making “ or opening of such natural or artificial draining when unnecessary “ or damaging to them.” R. S. 2748.

Police juries are limited to the exercise of the authority delegated to them, and its exercise must be by general ordinance. Jura non in singulas personas, sed generaliter eonstituuntur. Their functions should be exercised in parochial interests and others of a general or public character. “Police juries have only express powers and these incidental to powers so expressly granted. The Legislature has limited and defined the powers granted.” 41 An. 58.

In matter of roads, bridges, causeways, dikes and levees they have full authority to have drains opened when it becomes necessary to the protection of these interests. All drains which, by being closed, are damaging to roads, bridges, causeways, dikes, levees, may be opened. This does not confer the authority and the responsibility of acting when the interests are private, and no community or settlement has the least cause to be concerned.

In establishing a general system of drainage or in the building of dikes for the purpose mentioned, police juries can maintain suits.

They also have the authority to cause to be opened ancient drain's or water courses on lands divided among certain proprietors.

This does not give the right, in a shit, to vindicate rights of servitudes in any case which may arise.

In Sicard vs. Clity et al., 13 La. 114, a large settlement was interested in. reopening a navigable stream, “ and that river a branch of the Mississippi river, and the only water communication between that stream and one of the oldest and largest settlements in the State.” The use was public, and the right of the police jury to sue was maintained.

Upon reference to the transcript of appeal in Avery vs. Police Jury, Iberville, 12 An. 556, we find that it discloses that more than fifty inhabitants were interested in lands in the vicinity, and that the area of land affected by the drain was large.

The plaintiff had enjoined the enforcement of “an ordinance adopted for the purpose of draining a point of land in the Mississippi.”

It is not shown by plaintiff’s petition that the suit seeks to vindicate a public right, or to enforce a system of drains to be observed in reopening an ancient natural drain of land on a water course divided among several proprietors.

The question is one strictly with reference to the servitude due to the alleged dominant estates, and being a private matter it does not devolve upon the police jury to institute suit to vindicate whatever right there may be.

The question of the repeal of the laws relating to drainage by the Act 107 of 1888 and the amendment thereto, Act 83 of 1890, does not require consideration in this ease.

By these, the police juries were authorized to divide the parishes into drainage districts; they are directed to appoint commissioners, whose duties are defined.

The method of the enforcement of the law has been changed in some respect. The prior law is not entirely repealed.

“ Prior laws are not repealed by subsequent ones, unless by positive enactments or a clear repugnancy in their respective provisions.” Johnston vs. Pilster, 5 R. 77.

This action is not maintainable considered under either law — the prior or the subsequent. ■ Judgment affirmed at appellant’s cost.


author: Watkins, J.

text:
    No. 10,926.
    George Mather vs. Gustave Lehman, Sr.
    Notwithstanding the Civil Code directs that an attorney or curator must be appointed by thé judge to represent absent heirs in the conduct of succession and partition proceedings, the failure of the judge to make such appointment, or the existence of an irregularity in the appointment, does not constitute such an absolute nullity as will work the revocations annulment of a sale of property made thereunder. Omnia rite acta.

    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

    H. G. Morgan for Plaintiff and Appellee:
    It is the duty of the counsel, appointed by the judge of the place where the succession is opened, to represent the absent heirs, not only ip the inventory, but in ali the acts required by law to be done. R. C C. 1211.
    “The code makes it imperative on curators of absent heirs, when one of the heirs is present, to sue for a partition, and makes the curators competent parties, in asuit for partition, to represent, in every respect, the absent heirs. It cannot, therefore, be said that proper and competent parties were not made in this suit.” McCullough et als. vs. Minor, Executor, 2 An. 466; 3 An. 574.
    “The words ‘curator ad hoc,’ ‘attorney ad hoc’ and ‘advocate,’ when used with respect to an absent defendant, indicates the person named and appointed by the court to defend him in the suit in which the appointment is made.” BS.An., p. 209.
    “These terms are synonymous, and all so used in the Code of Practice.” 6 La. Rep. 473.
    “He who acquires an immovable iu good faith and by a just title prescribes for it in ten years.” R. C. C. 3478.
    “Good faith purifies the title of its defects, and causes the possessor under a just title to be preferred to the true proprietor, who has remained so long neglectful of his rights.”
    “There is no defect stamped on the face of the deed, and that is what the court says was meant by valid in form in a deed which wopld enable a holder under it to prescribe.” Pattison vs. Maloney, 38 An. 8S9; 27 An. 597.

      Buck, Dinkelspiel & Hart for Defendants and Appellants:

      A curator for absent heirs must be appointed in the same manner as an adminis-. trator — by petition, order, advertisement, oath and bond. Rev. Civil Code, ° Arts. 1113, et seq.

      A sxirviving wife is not entitled to be recognized and sent into possession as heir of her deceased husband without a strict compliance with the formalities prescribed by law. Civil Code, Art. 915, et seq.

   The opinion of the court was delivered by

Watkins, J.

Plaintiff institutes this suit to compel the defendant’s compliance with the terms of his contract to buy of him a certain piece of improved real estate, situated in the sixth municipal district of the city of New Orleans, in the square bounded by Antoine, Foucher and Prytania streets and St. Oharles avenue, having a frontage on the latter of 175 feet, for the consideration of $13,000.

The defendant admits the contract, but denies the validity of the title tendered him, averring that on the 30th of November, 1868, one James O’Dowd purchased the property from Raymond Pochelu, and subsequently died. That his succession was administered, and therein certain alleged partition proceedings were had, by which the surviving widow of the deceased appeared to have acquired same, but which defendant avers to have been null and void for want of proper parties thereto. And he further avers that the subsequent proceedings had in said succession could not have the effect of validating the title of Widow O’Dowd, she having,, in the meantime, conveyed title to another, arid the same not having been conducted according to law.

From the record it appears that in the partition proceedings designated, the property was allotted to Mrs. O’Dowd; that, on the 29i;h of October,'1877, she sold it to Mrs. Eva Jonas Lyons; and that she conveyed it to the present plaintiff.

From the record it appears that James O’Dowd left at his demise the property in controversy, and certain other parcels of real estate thereto adjoining, all of which belonged to the community theretofore existing between himself and his surviving widow, Mrs. E. H. O’Dowd, one undivided one-half interest in the whole of which vested in her, and the remaining one-half interest in the legal heirs of the deceased.

Mrs. O’Dowd presented a petition to the then Second District Court for the parish of Orleans, in which the succession of her deceased husband was being administered, praying for a partition of the common property, she being unwilling longer to continue in joint ownership with the heirs of her late husband.

On her petition an attorney was appointed to represent the absent heirs, who accepted the appointment and acted accordingly.

The matter was by the judge of that court referred to a notary for further proceedings according to law; and upon the report of experts duly appointed that the several properties were susceptible of division in kind, the partition was made — the widow O Dowd having allotted to her the property in controversy as the fair equivalent of that which was allotted to the heirs of the deceased. All the foregoing proceedings were conducted contradictorily with the said attorney for absent heirs.

The notary prepared a pvoces '.verbal of the partition, which was duly tiled and homologated on the 26th of October, 1877, and thereunder Mrs. O’Dowd went into possession as owner.

On this state of the case the sole question praised is of the capacity of the attorney for absent heirs to personate them in the partition proceedings.

The code directs that upon the opening of a vacant succession or of one of which the heirs or a part of them are absent from and not represented in the State, it is the duty of the judge ordering an inventory of the succession effects to be made to appoint a counsel to the absent heirs,” etc. R. O. C. 1210.

It also provides that, when an order for the sale of succession property is applied for “the petition of the curator must be notified to the counsel for the absent heirs,” etc. R. O. O. 1166.

It further declares that in case of the absence of co-heirs “ the curators who have been appointed for them * * * can sue or be sued-for a partition, as representing in every respect the absent heirs.” R. O. O. 1315. (Our italics.)

These articles relate, evidently, to an appointment of counsel or curators, under varying circumstances, either' in successions or in partition suits outside of successions.

In this case we have under consideration the appointment of an attorney for absent- heirs made in a partition of succession property, and we can not perceive any reason why it should not be accepted and regarded as efficacious, in view of the foregoing provisions of the code.

Some verbal criticism has been made of the style or title given to the person thus appointed, but it is not discoverable what the distinction consists in; for, practically, there is none. Vide Hooke vs. Hooke, 6 La. 473; Bunorini vs. Factors and Traders Insurance Co., 33 An. 209.

Even if there were any doubt of the regularity of the appointment of the attorney for absent heirs, it could not avail the defendant after the lapse of so great a length of time; because it was held in Gibson vs. Foster, 2 An. 503, that the record of the sale disclosing no order of appointment of such an attorney, that the presumption omnia rite acta was strictly applicable.

It was also held in the succession of Wadsworth, 2 An. 966, that “an order for the sale of the property of a succession, made at the suit of the administratrix, without citing the attorney of absent heirs, is not a nullity * * * The omission to cite the attorney for absent heirs was an informality anterior to judgment, which could not be enquired into collaterally,” etc.

In Herriman vs. Janney, 31 An. 276, it was held that the failure to ■appoint an attorney for absent heirs, with whom to conduct contradictorily an application for the administration of a succession, will not affect the validity of the appointment of the administrator.

As against the theory of plaintiff’s title, predicated upon the foregoing statement of facts, defendant’s further contention is that Mrs. O’Dowd petitioned the court to be recognized and put in possession of the property of the succession of her deceased husband as heir, but it is quite evident that these proceedings are not germane to the question of title under examination, as they exclusively relate to that portion of the community property which was set off to the absent heirs, in the aforesaid partition proceedings.

The tendency of such proof is rather to confirm than disaffirm the plaintiff’s title by partition.

Counsel for plaintiff has collated many decisions of this court on the question of prescription aequirenda eausa, but as, in our opinion, the questions at issue are clearly determinable upon other grounds, we find no occasion to give them an examination.

Judgment affirmed.


author: Bebmudez, C. J.

text:
    No. 10,713.
    Mrs. Josephine Jerman vs. Mrs. Mary Tenneas et als.
    Interlocutory rulings may be revised by the court and corrected, if erroneous, before final judgment. Evidence, at first rejected, may, up to then, be received.
    Parties litigant are not to be controlled unnecessarily in the order of the introduction of their evidence in civil cases.
    Documents properly authenticated by United States representatives abroad are admissible in evidence in the courts of this State, under the provisions of Act 38 of 1837.
    Where a man contracts a second marriage, while his first wife is living and undivorced, and dies leaving property acquired during the second marriage, contracted in good faith, a community existing in both eases, the estate must be shared equally between the two wives, under the rule of stare decisis, which has become a rule of property;

      APPEAL from the Civil district Court for the Parish of Orleans. Bilis, J.
    BugIc, Dinhelspiel & Hart for Plaintiff and Appellant:
    1. When a man contracts a second marriage while his first wife is living and uudivorced, and dies leaving property acquired during second marriage, if the second wife married in good faith, the estate shall be shared equally by the two wives. 89 An. 1021; Inkstein vs. Hubbel, 7 An. 252.
    2. Documents purporting to be certified copies of register or record of marriage and baptism, certified or attested by the mayor (burgomaster); further attested by a higher state official, subscribing himself “judge of the district;” and the latter’s official character attested by an American consul, are admissible in evidence and make full proof of the statements contained therein or the facts recited. Act No. 88, Acts of 1887; Succession of Wedderburn, 1 Bob. 263.
    3. Foreign laws may be proved by parol evidence. A book of printed laws, purporting to contain the laws of the German empire, sent to the consul of the empire in this city and State, as such Imvs, to guide him in the discharge of his official duties, is admissible to show what such laws are. Wakeman vs. Maryland, 5 N. S. 270, Sec. 5. Act No. 158 of Acts of 1855.
    4. The identity of the parties named in pleádings — especially a plaintiff — is always presumed, and need not be proved unless specially denied or put at issue.

      Farrar, Jonas & Kruttsohnitt for Defendants and Appellees:
    1. Foreign written laws can only be proved by an exemplified copy under the great seal of the state. Greenieaf on Evidence, Vol. I, Sec. 486, et seg.

    2. An uncertified pamphlet, in possession of a foreign consul, can not take the place of an exemplified copy. His statement that his government issued it to-him for official use is not admissible.
    3. Before a foreign certificate of marriage or birth can be admitted, it must be proven that the foreign law requii*ed such a record to be kept. Bishop on Marriage and Divoice, p. — .
    4. The rule that plaintiff must make his case certain and not probable, applies-with tenfold force in a case fraught with serious consequences to the status of an honest woman and nine children.
    5. There is no proof in the record of the identity of the plaintiffs.
    6. The evidence fails to show that the husband and father of the defendants was the husband and father of the plaintiffs.
   The opinion of the court was delivered by

Bebmudez, C. J.

This case was once before this court on an appeal from a judgment sustaining in part an exception of no cause of action and overruling it otherwise. 39 An. 1021.

The judgment was considered obscure and construed. With the interpretation thus put, the case went back for further proceedings. After trial the plaintiff was cast, and thereupon appealed.

The action has now for its object the revendication. of the undivided half of certain real estate and of the revenues thereof since judicial demand. .

The petition is in the name of Josephine Jerman, born Attinger, residing in the village of Moos, Canton Pfist, Upper Alsace, Germany.

It alleges that she was married on the 19th of March, 1851, in the village of Reisbach, in said Upper Alsace, to Francis Jerman, who was known subsequently in New Orleans by the name of Germaine, and that a child was born to them during marriage, named Josephine; that shortly after the birth of that child, he emigrated to America, remained unheard from by her until long after his death, which occurred on the 2d of June, 1873; that he contracted marriage in this city with Mary Tenneas, the defendant, about 1855, they having several children; that he left real property which is described and which has yielded revenues, which were received by said Mary Tenneas and her children, who should be condemned to pay the same back; that, conceding that the second marriage was contracted in good faith by that person, the petitioner is entitled, under the law, as surviving spouse in community, to the undivided half of said property and revenues.

The petition concludes with a prayer, in accordance with the averments.

To this petition an exception of no cause of action was originally filed.

The judgment of the lower court upon it was that, in so far as the petition concerns the money demand against the heirs, the exception be maintained, and, as to the widow, as far as concerns rents and revenues, up to judicial demand, it be also maintained, and that otherwise it be overruled.

This judgment was affirmed, the court announcing that the only question really presented for solution was whether there was any liability against the defendant for revenues received before the suit and deciding it in the negative. 39 An: 1021.

The court held that otherwise the petition disclosed a cause of action, reaffirming the established doctrine that when a man contracts a second marriage, while his first wife is living and undivorced, and dies leaving common property acquired during the second marriage, contracted in good faith, the estate will be shared equally by the two wives.

After the case had gone back to the lower court, it was tried on issues formed by a general denial, setting forth good faith on the part of the defendant, and a denegation of the alleged marriage of her husband with the plaintiff.

Oral and documentary proof was adduced, and the district judge dismissed the suit, with judgment against plaintiff and for defendant.

He says that it is possible that the plaintiff Josephine Attinger and Josephine Zimmerman are one and the same person, and that Francis Jerman, who married Josephine Attinger, was the person, who afterward married the defendant, but this has not been proved with moral certainty.

I.

On the trial in 1889, certain documents purporting to be copies of the act of marriage of the parties, of the registry of the birth of Francis Jerman and of that of Josephine, born during the marriage, were offered in evidence.

Their admission was objected to, because they had previously been offered and excluded, a bill being reserved, to which they are atr tached, and that it is contrary to the ordinary rules of judicial proceedings to offer the same a second time on the same trial; and also because they are inadmissible in evidence without previous proof of the foreign law of the locality, to the fact that the law required such records to be kept, and that the officers certifying such records are the custodians thereof, and are authorized to give certificates. The objections were overruled, and the evidence received.

It is a fact that, in 1888, at the opening of the trial before the judge then presiding over the court, the documents were offered and on objection excluded, a bill being reserved; but this-is a matter of no moment to prevent their subsequent admission by the same judge, or his successor, as was the case.

Judges have the right, proprio motu, to correct rulings of theirs made during the course of proceedings before them, prior to the judgment, and are clothed even with the power, after final judgment and before signature, to-set aside, of their own accord, their conclusion and try the case de novo. C. P. 547, Sec. 4.

That which they can do spontaneously, they assuredly can accomplish on the suggestion of the party aggrieved. The more includes the less.

On the second ground, conceding arguendo that proof of the foreign laws should be made, it is immaterial that it be adduced previous to the offer. It suffices that it is made before the closing of the evidence, as was done in this case, by the production of the authentic texts of the local laws from books or extracts, or under admission of what the foreign consul here would swear to if heard as a witness.

Besides, litigants are not unnecessarily to be controlled in the order of the introduction of their evidence in civil cases.

It is, however, questionable whether such proof was at all exigible, as the documents bear the certificates of the local officials, whose signatures are attested under seal by the United States vice consul, who expressly declares “ that they are duly commissioned to execute such acts, and that their signatures are genuine.”

Under the ruling in the Stein Case, 9 La. 231, the objection would have stood, but it has no merit now, for since that decision the Legislature, to do away with [its effects, passed Act No. 38 of 1837, providing for the authentication of foreign documents-before the courts of this State, which is still in force and settles the question. It was considered in the succession of Wedderburn, 1 R. 263. In presence of this special statute, what may be found to the contrary in Greenleaf, Vol. 1, Sec. 486, relied on by defendant, does not obtain. The documents were therefore properly admitted.

II.

The act of marriage shows that Francis Jerman, on the 19th of March, 1851, a shoemaker, born on November 1, 1820, aged 31 years, domiciled at Reisbach, and Josephine Attinger, same domicil, born on November 29, 1823, at Moos, the names of the parents of both being given, wer.e lawfully married by the mayor of Reisbach.

The second document shows that Francis Jerman was born on November 1, 1820, and gives as the names of his father and mother the same as are found in the act of marriage.

The third act shows that Francis Jerman at the time of the registry of the births presented to the local proper officer a female child born on the 20th of June during his marriage with Josephine Attinger, his wife, to whom the name of Josephine was given.

There is satisfactory oral testimony proving that one Francis Jerman from Reisbach, a shoemaker, married about 1851 (1852) at Reisbach a girl named Josephine, born at Moos, who was known as

Josephine Zimmerman, her father being a carpenter, a Zimmerman; that during their marriage there was born a girl named Josephine; that some time after, Francis left the country for America, and that he was met at Louisville, Osyka and New Orleans, at which last place he worked as a shoemaker.

There is no dispute that some time in 1855 the defendant, Mary Tenneas, married a man by the name of Francis Germaine, and that several children were born during that marriage, who are with their mother made defendants in this case.

The contention is that the Francis Germaine whom the defendant married is not the Francis Jerman who married Josephine Attinger, and that the Josephine Zimmerman, of whom three witnesses speak for having known her in Moos, is not the Josephine Attinger whom Francis Jerman .married in 1851 at Reisbaeh.

Unless the witness Blaize Neberschleg perjured himself and is unworthy of belief, the identity of Francis Jerman with Francis Germaine is sufficiently established, for he swears unqualifiedly to the same and circumstances his testimony so as to leave no doubt on the subject. Further facts might possibly have been elicited from him which would have better established the identity beyond all imaginable peradventure.

The defendant in her testimony furnishes a link by declaring that from his own saying her husband was born on the 1st of November, 1820, the date of the birth of Francis Jerman.

The witness named testifies that the girl whom Francis Jerman married at Moos went by the name of Josephine. He' does not know, her family name; but she was called Zimmerman, perhaps, because her father was a carpenter, which Zimmerman means in German. He says there was born to them a girl named Josephine; that Francis Jerman was a shoemaker; that he made shoes for him here, and that he passed here as the husband of the defendant.

The sister of the witness, Mrs. Meyers, and Frank Mellerich, plaintiff’s agent, testify in a way which sufficiently establishes that the Josephine, whom Francis Germain married in Reisbaeh, is the Josephine Attinger named in the act of marriage, and who is the plaintiff here, and the mother of the little girl Josephine, born during their marriage.

It is worthy óf note that the name of the man who married the defendant, which is Germain, as appears on the deed of purchase, is idem sonans with Jerman, with slight variation.

Attempts have been made to assail the testimony of the three witnesses, heard on behalf of the plaintiff, by questions on cross-examination, the object of which apparently was to confuse them and have them to contradict themselves; but the purpose was not accomplished. If they have shown some vacillation or weak memory, they promptly corrected or explained themselves whenever the opportunity offered itself to do so.

Their veracity remains unimpeached. It must be noted that they are ordinary, illiterate persons, save the agent, who, however, testified consistently on the whole.

The attack on his motives in acting as the agent of the plaintiff does not weaken, if true, his sworn declaration.

It is a singular circumstance that the defendant did not offer in evidence her act of marriage. Was it because it does not exist, or because, if exhibited, it might have shown recitals of some weight in the scale in favor of plaintiff?

The reasonable requirements of the law, even as claimed to be announced by Greenleaf, Ev.,VoL II, Sec. 461, have been sufficiently complied with to establish the identity of the parties in a case like this.

The district judge considered that the identity of the parties and consequently the marriage of Josephine Attinger with Francis Ger-main, whom the defendant married, had not been sufficiently established.

Finding that the marriage is proved does not operate a conviction of adultery by the defendant and stigmatize her, as a disgraced illegitimate widow, and taint her children as adulterous bastards.

The concession by the plaintiff and the assertion by the defendant that the second marriage was contracted in good faith by the wife justify the legal conclusion that the marriage produced eivil effects which enured to the benefit of both the wife and her issue, under textual provisions of the law. R. O. O. 117.

It must be conceded, however, that it was a difficult undertaking to prove in 1889 the identity of an individual who married in 1851 in Europe and in 1855 in America, and who died in 1873. Under the exceptional circumstances of this case it was morally shown, so as to warrant the conclusion reached in this case.

III.

The record shows that the property described in the petition was purchased in 1871, during the alleged second marriage, but there is nothing that we could discover establishing the revenue since judicial demand, and we do not find the admission of the defendant alluded to by the plaintiff, who, on the contrary, says that there is not a syllable of proof on the subject in the record.

The record of the litigation between the present defendant and Mallerich might have been admitted in evidence, but it would not have proved the revenues received from judicial demand to the closing of the trial. At best it would have shown some receipts, and the ease would have had to progress on the remanding for the rest. It is better not to try cases piecemeal and to dispose of them only after all the evidence of which they are susceptible has been introduced and considered.

The claim of the plaintiff to one-half of the property is not disputed by the defendant, who utters not a word against it. Even then, it could not be successfully controverted.

The real estate was acquired by Jerman, alias Germain, during the existence of his marriage with Josephine Attinger, which was not dissolved until his death, in 1878.

It was acquired, therefore, during the community régime, and, at the dissolution of the community, by the death of the husband, title to half vested in Josephine Attinger, regardless of the second marriage, whether contracted in good faith or not.

The question as to what became of the other half does not arise, by reason of the admission of good faith, made by the plaintiff in favor of the defendant, and of the silence of the child of the first marriage and of the absence of any issue and contention about it.

Did it arise and were it res nova it might present some difficulty, particularly if the French system was consulted; but, under the rule of stare decisis it is finally settled and has become a rule of property, which should not be lightly disturbed.

A perusal of the opinions of Mr. Justice Rost, in the cases of Patton and of Inkstein, 1 An. and 7 An., will amply repay reading. The able and indefatigable Justice, with his usual sagacity and erudition, guided by the Spanish law, which had a bearing and which he quotes in the' first case, and with which, though at the time repealed, our law was assimilated, in the second case shows that the second half passes to the wife, because the husband, by his misconduct, forfeits all his rights thereto in favor of the deceived wife, and transmits nothing by his .death to his issue, who are thus excluded from all inheritance, except that of his separate property. Patton vs. Phila., 1 An. 98; Inkstein vs. Hubbell, 7 An. 252; Ashton vs. Ashton, 15 An. 137: 39 An. 1021; 3 M. 438.

While reversing the judgment appealed from and recognizing the right of the plaintiff to one undivided half of the property involved, with a reserve of her right to claim the revenue from judicial demand, we think that it would not subserve the ends of justice to non-suit her as to the rents, but that it is preferable to remand the case to enable, her to prove the same.

It is, therefore, ordered and decreed that the judgment appealed from be reversed; and

It is now ordered and adjudged that there be judgment in favor of the plaintiff, Josephine Attinger, recognizing her as the owner of the undivided half of the property.described in the petition, and entitled to half of the net revenues thereof from judicial demand till settlement; and

It is further ordered and adjudged that for the purpose of enabling her to recover said half of said revenues, the case be remanded for further proceedings according to law, the defendant to pay costs in both courts.


author: Fenner, J.

text:
    No. 11,042.
    George A. Staples, Executor, vs. George L. Mayer et al.
    1. A delinquent tax debtor, whose property has been validly sold for taxes, and wlio has not redeemed or offered to redeem within the delay allowed by law, can notclaim the benefit of a sale made by the tax purchaser to a third person, as operating a redemption, merely because such person falsely represented that he was a creditor of the tax debtor, and as such was entitled and ready to redeem, and thus induced the purchaser to sell.
    2. A party can not assail a transaction on the ground of a fraud which was not practised on him and did not injure him.
    3. Nor can he claim the benefit of acts^of a third person having no authority, and under no obligation to represent him, and not done in his name or for his account, but in his own right and for his own benefit.
    APPEAL from the Twelfth District Court for the Parish of Avoyelles. Goco, J.

      James Andrews, John (7. Ryan and Thorpe & Peterman for Plaintiff •and Appellant:

      1. An executor has capacity to institute and prosecute to judgment real actions for the recovery into the succession of the testator of property in the hands of strangers without joining the heirs as plaintiffs. 10 S. R. 413.
    2. Tender of the purchase price is not always an essential prerequisite to the institution of a suit for the recovery of real property. There are cases in which tender can not be successfully made. 40 An. 677.
    3. When third pevsons attack contracts for fraud, testimonial proof is of necessity admissible to establish it. 30 An. 89S; 2 La. 593.
    4. The admission of parol evidence to defeat written contracts by proof of error- or fraud is a rule of universal jurisprudence, and when such evidence is offered by third persons the widest scope is given to the inquiry for the purpose of ascertaining the true character of the contract and the intent of the parties. Hen. Dig. Ev. XV <li) 6; Louque’s Dig. Ev. XV (a), p. 250; 8;N. S. 267; 13 An. 207 An. 710; 2 An.' 4S0; 3 N. S. 24; 2 JST. S. 13; 14 La. 184.
    5. Fraud vitiates all contracts, and in the proof of it the admissions of the parties,, even when not made in the presence of each other, their acts and actions, are admissible in evidence. 11 An. 910; 16 An. 85.
    6. Fraud can rarely be proven by direct and positive testimony. Circumstantial and presumptive evidence is all that is necessary to establish it. 9 An. 278; 13 An. 307; 12 R. 95.
    7. When evidence from which fraud may be held to result is administered, then the burden of proof shifts and the party against whom it is alleged is called on to disprove it. 2 La. 306.
    8. When a party has been arraigned and his title assailed upon charges of fraud, and he has been formally cited to come into court and make defence, and instead of maintaining the bonafides of his title he seeks to get rid of the case by technical defences, fails to explain away suspicious circumstances, and offers no evidence to uphold or defend the integrity and good faith of his title, the court will assume that the charges are true, and that it was not within his power to disprove them. 41 An. 735.
    O. H. Couvillon for Defendant and Appellee:
    1. The alleged owner of property sold at tax sale can not maintain an action for its recovery until he has tendered to the purchaser the price paid, with 10 per cent, interest and costs. Constitution of 1879, Art. 210; Act 96 of 1882, Sec. 62; 30 An. 1232.
    2. In all actions of nullity, rescission, etc., the plaintiff should first^make a tender or offer of restitution of what he had received in the transaction sought to be annulled. Not only this must be done, but there must be a distinct allegation showing the performance of this requirement, or else the petition does not disclose a cause of action. Cross on Pleading, p. 51; 39 An. 874.
    3. An excuse for not making the required tender will not avail in the face of positive law to the contrary.
    4. It is a well settled doctrine that the offer to return consideration received or benefit derived is a condition precedent to the right of action to rescind a sale or contract. 4 La. 198; 19 La. 281.
    6. Redemption of property sold for taxes can only be made by a tax debtor, heirs, legatees and creditors.
    6. An allegation that defendant was not a creditor of the succession represented by plaintiff, whose property was sold for taxes, but by his fraudulent representations to the purchaser, that he was a creditor, and as such authorized to redeem the property, but took title in his own name; that such false representations operated as a redemption in behalf of the succession, disclose no cause of action.
    7. Parol evidence of representation, made prior or after the sale is inadmissible, without proof of actual fraud; all previous conversations being merged in the written contract. Grcenleaf, pp. 832 and 333.
    8. A contract of mandate for the purchase or redemption of real estate can not be proved by parol evidence, even when fraud in the alleged agent is set up. Extra judicial admissions and confessions of a party can not be proved by parol in a case where testimonial proof is inadmissible. C. C. 2276; 30 An. 898 ; 32 An. 635; iO An. 157; d La. 196; 2 La. 593; C. O. 2290.

      E. J. Jdffrion, J. C. Oappel and M. O. Moseley on the same side.
   The opinion of the court was delivered by

Fenner, J.

Plaintiff, suing in the capacity of executor of Walter O.Winn, alleges substantially:

1. That the succession of Winn owned certain lands in the parish of Avoyelles.

2. That in July, 1887, said lands were lawfully sold for delinquent taxes due thereon by said succession, and were adjudicated to Geo. L. Mayer for the price of §44.19, who paid the price and received the tax collector’s deed.

3. That in December, 1887, Mayer executed an act of sale of said property to M. O. Mosely.

4. That the sale to Mosely was induced by his false and fraudulent representation to Mayer that he was a creditor of the succession of Winn, and, as such, entitled to redeem the land from the tax sale; that he tendered the sum required by law for its redemption, and demanded a title in his own name for the protection of his rights as creditor, which Mayer accordingly made on receipt of the sum of $55.43, the exact sum required for redemption.

5. That the effect of the sale from Mayer to Mosely was to operate a redemption of the lands from the tax sale, and to revest the title to the same in the succession of Winn.

6. That Mosely was not a creditor of the succession of Winn or otherwise authorized to act for it.

7. That in October, 1889, Mosely sold a part of those lands to'Geo: L. Mayer and C. P. Oouvillon for the price of $600.

8. That Mayer, well knowing that Mosely had no title in law to the lands, acquired none under the sale to him.

9. That Oouvillon took his title burdened with the same knowledge, “inasmuch as by the express terms of the act he assumed all risks of title and released Mosely from every obligation of warranty.”

On these averments he asks for judgment decreeing the property to belong to the succession of Winn, annulling the sale from Mosely to Mayer & Oouvillon, and compelling the reconveyance of title to the succession.

Various exceptions and defences were interposed, of which we need consider but one — the exception of no cause of action.

It is clear to' our minds that if all the averments of the petition were established, they would authorize no relief in favor of plaintiff.

The allegation that the sale from Mayer to Mosely operated a redemption, vesting title in the succession, is a mere averment of law, entirely unwarranted.

It is apparent the act is not, and does not purport to be, a redemption deed. It is an act of sale for a fixed price, which Mayer had a right to make and which he did make. • .

The utmost that can be said of it is that Mayer was induced to sell by the fraudulent representation of Mosely that he was a creditor of the succession of Winn, and, as such, was entitled and ready to redeem.

This might furnish good ground for an attack on the sale by Mayer on the ground of fraud; but we are at a loss to perceive what ground of complaint it affords the succession. The sale to Mosely did not put the succession in duriori easu, or affect its rights in any manner. The validity of the tax sale is not questioned. It divested the title of the succession, subject only to the right of redemption within the term fixed by law.

The sale to Mosely did not impair or abridge this right in any way. It is not pretended that the succession ever exercised, or intended to exercise, its right of redemption within the delay allowed. It is not claimed that the transaction between Mayer and Mosely had any influence or effect in preventing its doing so, or was even known until long after the delay had expired.

What injury has the succession suffered? It stands precisely in the same position in which it would stand if none of these transactions had occurred. It has lost the land, not by the effect of the transactions assailed, but solely by the effect of the tax sale and by its failure to redeem within the legal delay. It is attacking an alleged fraud which was not practised upon it and did not injure it in any manner. .It is claiming the benefit of acts done by a third person having no authority, and under no obligation, to act for it, and, upon its face, not done in its name or for its account, but exclusively in his own right as a purchaser under a valid contract of sale.

Judgment affirmed.


author: Fenner, J. Watkins, J.

text:
    No. 11,028.
    A. Darcantel et al. vs. The People’s Slaughter House and Refrigerating Company et als.
    1. Article 248 of the Constitution delegates to the city of New Orleans the complete and exclusive police power inherent in the sovereign over the whole subject of slaughtering animals within the corporate limits, subject to no limitations except that imposed by the terms of the article itself.
    2. The decision of the XJ. S. Supreme Oourt in the slaughter house cases shows that this police power is more than ample to cover the ordinances assailed in . this case.
    3. The limitations imposed on the power by Art. 2á8 are three, viz. 1. That no monopoly or exclusive privilege shall be granted. 2. That the business shall not be restricted to the lands and houses of any individual or corporation. ' 3. That the city’s action must recei vq the approval of the Board of Health.
    Nothing in these ordinances makes the grant to defendants monopolous or exclusive, or restricts the business to their lands or houses. The city retains the perfect right to permit other slaughter houses within the limits designated or elsewhere.
    No person is before us complaining of any infringement of his equal rights to carry on the business of slaughtering. We will determine such questions when they arise, which may never happen. The unrestricted right to all persons to set up slaughter houses within the limits designated would aggravate, rather than relieve, the injuries complained of by these plaintiffs. 5.
    The ordinances have received the concurrent approval of the Board of Health. The fact that this approval was only given after having been first refused does not affect the case. The city did not repeal or cancel the ordinance, but persists in the same; and remaining ineffective while not pproved, it acquired executory force as soon as it received the concurrent approval of the Board of Health. 6.
    The Constitution fixes no time or mode in which the approval shall be made. When the ordinances and the approval coexist, the constitutional requirement is satisfied. 7.
    The function exercised by the Board of Health is not properly legislative. The board can not pass or amend the ordinance. Ib can only say whether it approves or disapproves. 8.
    While the valid legislative authority under which defendants act may not exempt them from compensatory liability for private injuries inflicted on others, it is a complete bar to an injunction in advance. 9.

      10. The principle that a party may prevent by injunction the doing of an act which would give him a claim for damages must be confined to unlawful acts» The acts here sought to be enjoined are strictly lawful, made so by the valid ordinances passed under constitutional authority.
    11. It would be a complete nullification of the power granted by the Constitution if private parties might enjoin in advance the execution of ordinances passed in pursuance thereof.
    APPEAL from the Oivil District Court for the Parish of Orleans. Ellis, J.

      Henry Denis for Plaintiffs and Appellants:
    1. Under Art. 248 of the Constitution and the charter of the city of New Orleans. Act of 1882, the council has the power to regulate the slaughtering of animals-within the limits of the city, but not to establish any particular slaughterhouse. The power to i egulate is distinct from the power to establish or create. Dillon, Munic. Corp., Secs. 362 and 380, et seq.; First Municipality vs. Cutting, 4An. 836; Chicago vs. Rumpfi, 45 Ill. 90.
    2. The city of New Orleans can not grant a franchise unless the power has been, delegated to it by the State. Tilton vs. R. R. Co., 35 An. 1069.
    3. A private nuisance may be prevented or abated by injunction even when it is established under legal authority. .Blanc vs. Murray, 36 An. 162; Baltimore R. R. Co. vs. Church, 108 U. S. 317.
    4. A slaughter house in the midst of residences is necessarily a private nuisance. Villavaso vs. Barthet, 39 An. 247; Wood on Nuisances, Sec 751, et seq.; High on Injunctions, Sec. 772, et seq.

    5. A party can always prevent by injunction the performance of an act which, if done, would give him a claim for damages. Carraby vs. Morgan, 5 N. S. 501; Slaughter House Co. vs. Larrieux, 30 An. 800, and cases cited therein.

      E. Howard MeCaleb on the same side:
    1. In exercising “ the power of regulating the slaughtering of cattle and other live stock” delegated by the Constitution the city of New Orleans can not create a monopoly, nor restrict the business to the land or houses of any individual or corporation. Constitution, Art. 248. The city was only authorized to pass general ordinances upon this subject, permitting all persons desiring to do so-to engage in the business within the locality selected upon an equal footing, subject to the same restrictions and regulations. The council can not grant this right to one and withhold it from all others without violating the Constitution, which recognizes the great principle of republican government — equal rights to all; special privileges to none.
    2. The Board of Health has never concurred in the ordinances designating the place for slaughtering, and defendants’ grant is therefore imperfect and incomplete, for the reasons:
    (a) That concurrence having been refused on the 14th of May by the Board of Health, and the city notified, it was too late to reconsider the vote and con cur on the 8th of October following (twenty-one meetings having been held in. the interim).

      (&) The y eas and nays having been called on the motion to concur, a motion to reconsider could only be made by a person who voted on the prevailing side, and not by a new member — not present when the original vote was taken. Fish’s Am. Manual of Parliamentary Law, p. 91.
    (c) If the motion to concur had been adopted, it could not have been reconsidered five months thereafter (twenty-one meetings having intervened), “for action, partaking of the nature of a contract, can not be reconsidered.” Fish’s Am. Manual, p. 45. Argunientmn e converso valebat.

      id) In designating the places for slaughtering, the City Council and Board of Health occupy the same relation toward each other as the two houses of a legislative assembly: where one house has refused to concur in a bill originating in the other, and it has been returned, it can not be reconsidered and again acted upon without first recalling and obtaining possession of the bill. No action can be had upon a bill which is no longer in possession of the House (Cushing’s Law and Practice of Legislative Assemblies, 1274.) The Board of Health could not reconsider and reverse its action, refusing to concur in the ordinance in question, after notification to the city, without first recalling and getting possession of the ordinance.
    <e) An interpretation previously placed upon a parliamentary rule, relative to motions to reconsider by the Board of Health, will be followed in case of doubt. (f) If the ordinance relied upon by defendants has never been legally concurred in by the Board of Health, the preventive writ of injunction sued out in this case should be perpetuated. 37 An, 280; Wood on Law of Nuisances, Secs. 788, 789, 790.

      J. R. Beckwith for Defendants and Appellees:
    1. The municipal and health.authorilies of the city of New Orleans and parish of Orleans are vested by law with the control and regulation of slaughter houses and the slaughtering of animals for human food in the city and parish of Orleans, and have authority to designate the locality in which slaughtering shall be carried on. State Constitution, Art. 248; O. C. 669.
    2. The police authorities having licensed and authorized the establishment of slaughter houses within prescribed limits,the industry can bo lawfully carried on within the limits proscribed, and neither the public nor any individual can, ■while the license lasts, interfere by an injunction to prevent the establishment •of the business if carried on within the scope of the license. Their only action, if any, is an action for damages, if the business is negligently, carelessly or improperly carried on so as to cause more damage than is incident to the business carefully and proporly conducted, nor until they have actually suffered such damage from such cause. Itobb. vs. Carnegie & Co., 22 Atlantic Rep. 649, ■ 651; Coal Company vs. Sanderson, 113 Pa. State Rep. 126; 6 Atlantic Rep. 453; ■Huckenstine’s Appeal, 70 Pa. State Rep. 102; Railroad Co. vs. Lippincott, 116 Pa. .State ltep. 472; Ballentine vs. Webb, 47 N. W. Rep. 485; Attorney General vs. 'Nichol, 6 Vos. 342; Zabriskie vs. Railway Co , 13 New Jersey Eq. 314; 2 Story Equity Jur., Sec. 925; Gilbert vs Showerman, 23 Mich. 448; Cleveland vs. Gaslight Oo., 20 New Jersey Eq. 203; Rex vs. Rease, 4B. and Ad. 30; Rex vs. Morris 4 B. and Ad. 441; State vs. Turnpike Co., 24 N. J. L. 547; Commonwealth vs. Han- • cock FreeBridge, 2 Gray (Miss ) 58; State vs. Scott, 2 Swan (Tenn.) 332; State vs. Parrott, 71 N. C. 311; People vs. Gaslight Co., 64 Burt. 55; Imperial Gas Co. ■vs. Broadbent, 7 H. L. 605; Carhart vs. Gaslight Co., 22 Burt, 297; People vs. Platt, 17 Johns, 195; Davis vs. Mayor, 14 N. Y. 506; Harris vs. Thompson, 9 Burt. .350.
   The opinion of the court was delivered by

Fenner, J.

The following ordinance and amending ordinance were adopted by the City Council of New Orleans:

No. 5180 — Council Series.

1! Whereas, The sanitary conditions and conveniences of slaughter houses supplying this city are defective and obsolete, and constitute a monopoly contrary to Art. 248 of the Constitution of Louisiana; and

Whereas, The inspection now provided by law is deficient and. beyond the control of the city of New Orleans; and

Whereas, It is of vital importance that all the articles of human food be subjected to a right inspection; and

“ Whereas, Article 248 of the Constitution guarantees to every parish and municipality the undoubted right and privilege to establish slaughter houses within the respective limits; therefore

Section 1. Be it resolved, That permission is hereby granted to A. J. Forstall, PierrelLanaux, J. W. Westerfield, J. Trisconi, their heirs and assigns, for the term of fifty years, to construct, use, maintain and operate a plant for the landing, penning, sheltering and slaughtering of all kind of live stock; to construct, use, maintain and operate, in connection with the above plant for the manufacture of ice and other cooling and refrigerating substances, with a view of keeping, preserving, refrigerating or freezing the carcasses or other parts of the various animals slaughtered in said above mentioned establishment; and to sell or dispose of to others the meats so slaughtered or refrigerated, and also the ice and other refrigerating substances which may be in excess of their consumption; and generally to conduct and carry on a slaughtering and refrigerating business in all its branches, storing, importing and exporting.

“ Sec. 2. Beil further resolved, That the said persons or corporation shall execute a bond with one or more good and solvent sureties to the satisfaction of his honor the mayor, in favor of the city of New Orleans, in the sum of twenty thousand dollars ($20,000), conditioned that the said persons or corporation shall not at any time sell, transfer or dispose of this franchise to any persons or corporation, except for the purpose of organizing a company or corporation to carry into effect this resolution, and in any case of sale, disposition or transfer, for any other purpose, this resolution shall become null and void, and shall4 be of no force or effect.

“ Sec.' 3. Be it further resolved, That there shall he appointed by the Board of Health and confirmed by the City Council a special inspector who shall be a veterinary surgeon, or a person skilled in the knowledge of the diseases of cattle, whose duty it shall be to inspect the carcasses and interior organs of all animals intended for food, and who shall have power to destroy and throw away any diseased or unhealthy meat unfit for food; that the Board of Health, with the concurrent approval of the City Council, or either, shall have the right to remove said inspector for cause; that said inspector shall receive a salary to be fixed by the City Council, and which shall not exceed the sum of one hundred dollars per month, to be paid monthly through the treasury of the city by the persons or corporation availing themselves of the privileges of this ordinance. It being well understood that this shall in no manner dispense with the inspection now provided by law.

“ Sec. 4. Be it further resolved, That all pen slaughter houses, refrigerators, constructed and operated under this ordinance shall be constructed upon plans and specifications approved by the City Council and the Board of Health; and shall be supplied with all modern conveniences necessary to carry on the business contemplated, and to remove daily, according to law, all the offal, droppings and blood from slaughtered animals.

“Sec. 5. Be it further resolved, That there shall not be allowed within a radius of two thousand feet of said slaughter houses and refrigerators any establishment for rendering dead animals, or those known as bone yards.

“Sbc. 6. Be it further resolved, That all ordinances, or parts of ordinances, in conflict with the provisions of this ordinance, and especially Ordinance No. 7336, A. S., entitled ‘Anordinance designating the places of slaughtering animals intended for food in the parish of Orleans, under Art. 248 of the Constitution.’

“ And Ordinance No. 1409, O. S., entitled ‘An ordinance regulating the slaughtering of animals within the limits of the city of New Orleans.’

“And providing for the designation of the places for slaughtering-the same, and repealing all provisions of Ordinance No. 7376, A. S., adopted October 13, 1881, and Ordinance No. 7437, A. S., adopted. November 18, 1881, designating the territorial limits within which, slaughtering could be done within the city of New Orleans.

“And Ordinance' No. 2709, O. S., granting permission to Louis .'Barthet to reopen and operate a slaughter house under certain conditions, within the city of New Orleans..

“ And Ordinance No. 2911, O. S., granting permission to any person or persons, etc., to erect slaughter houses within certain limits.

“ And Ordinance No. 3710, O. S., granting permission to the New Orleans Slaughter House and Live Stock Company, Limited, to erect and operate a slaughter house under certain conditions and restrictions, be and the same are hereby repealed, except in so far as this may affect any and all slaughter houses now operated in this city, under any ordinance, resolution or State law.”

No. 5242 — Council Series.

“An ordinance amending and re-enacting Ordinance No. 5180, C. S., granting permission to A. J. Forstall and others to erect and maintain a plant for the slaughtering of cattle, etc.:

“Be it ordained by the Qouneil of the City of New Orleans, That Ordinance No. 5180, C. S., be and is hereby amended by adding, after the last word in See. 1, the following: ‘Within the area comprised between the Mississippi river and St. Claude street, the projected line of Caffin avenue and Adams street, in the third municipal district of this city.’

“Be it further ordained, etc., That Ordinance No. 5180, C. S., as herein amended, be and is hereby re-enacted, and shall not be construed as granting a,n exclusive privilege.. ■

“Adopted by the Council of the city of New Orleans, April 21, 1891.”

These ordinances were approved by the Board of Health in the ■following resolution:

“Whereas, It is important and indispensable for the health of ■the inhabitants of the city of New Orleans that the inspection of the sanitary condition of all animals destined to be slaughtered for human food, before slaughter, as well as the inspection of animal food and meats intended for consumption as human food by the inhabitants of this city, should be under the complete control of the board and ■within its territorial jurisdiction, and the inhabitants of this city ought to have better protection against the spread of disease, ■through the medium of diseased animal food, than can be expected from the action of the health officers of rural parishes, acting beyond the local jurisdiction of the authorities of the parish of Orleans and not having local interest therein;

“Beit resolved, That this board reconsider its action in the matter of the application of A. J. Forstall, Pierre Lanaux, J. M. Wester-: field and J. Trisconi, the persons named in the ordinance of the city of New Orleans, No. 5180, Council Series, adopted respectively March 31, 1891, and April 21, 1891, for the action of this board, under Art. 248 of the Constitution of the State, in approval of the location of the slaughter house provided for in said city ordinances within the area comprised between the Mississippi river and St. Claude street, the projected line of Caffin avenue and Adams street, in the third municipal district of this city,’ and acting under the authority conferred on this board by Art. 248 of the Constitution and the law of the State, does now concur with the council of the city of' New Orleans in said ordinance designating the place for slaughtering as located in said Ordinance No. 5180, Council Series, as amended by said Ordinance No. 5242, Council Series, approved April 22, 1891, subject to all of the conditions and restrictions contained therein. The board reserving to itself the full right to the inspection of all plans for the construction of said slaughter house, and requiring the same to embody and contain the most approved modern devices and appliances for maintaining, not only the sanitary conditions and health of animals before slaughter, but the preservation of meats-between slaughter and sale and the prompt removal and disposition of blood and all other offal, and the perfect cleanliness of the live stock stalls and the premises and surroundings (but any officers or committee of this board, or any other officer designated by this board, shall at all times, and without previous notice, have free access to all parts of said premises for purposes of inspection and report to this board), and the proprietor or proprietors of said slaughter house shall promptly comply with any order or request of this board in any matter relating to the sanitary conditions of said premises, whether it relates to the slaughtering, removal of offal or the condition, surrounding or health of animals before slaughter or meats after slaughter, with the right to condemn all diseased animals and meats determined to be not fit for human food, besides to exercise all other rights and powers conferred on the board by the Constitution and laws of the State, and that the mayor and City Council be notified of this action.”

Under these ordinances the defendants were about to proceed in the establishment of a slaughterhouse in conformity therewith, when the plaintiffs, who are property owners and residents in the vicinity of the premises, brought this suit to restrain them by injunction.

From a judgment of the District Court dissolving the injunction and rejecting their demand the plaintiffs appeal.

The grounds of injunction, so far as pressed in this court, are three, viz.:

1. That the ordinance of the City of New Orleans granting to the defendants the right to establish the said ■ slaughter house is illegal and unconstitutional.

2. The Board oi Health has never concurred in the ordinances-designating the place for slaughtering, and defendants’ grant is-therefore imperfect and incomplete.

3. That the establishment of a slaughter house in the immediate-vicinity of the plaintiffs’ residences would constitute an intolerable nuisance, which they have the right to.enjoin, even if it were to be established under legal authority.

We shall consider the several grounds in the above order.

I.

Article 248 of the Constitution provides that: “ The police juries of the several parishes, and the constituted authorities of all incorporated municipalities of the State, shall alone have the power of regulating the slaughtering of cattle and other live stock within their respective limits; provided, no monopoly or exclusive privilege shall exist in this State, nor such business be restricted to the land or houses of any individual or corporation; provided, the ordinances designating the places for slaughtering shall obtain the concurrent approval of the Board of Health or other sanitary organization.”

In construing the scope and meaning of this article, this court has already used the following strong and emphatic language:

From the language of the article it appears that the framers of the Constitution intended to vest in the enumerated subdivisions of the State, within their respective limits, the whole, power inherent to a sovereign touching the regulation of the slaughtering of animals for food. The power thus delegated is as complete, unrestrained and unshackled as it originally existed in the State itself, and its exercise can be circumscribed by no limits or conditions which could not apply to the State or to the sovereign whence it emanates.

“ Its description in American jurisprudence is the police power, a governmental power which can not be the subject of a contract, and to the exercise of which no estoppel can be interposed.” Villavaso vs. Barthet, 39 An. 252.

We have thus held that the Constitution of the State confers upon the City of New Orleans the whole police power over this subject, which belongs to the State herself, and subject to no liniitations except those expressly imposed by the terms of the constitutional grant itself.

When we inquire into the nature and extent of the police power over this subject inherent in the State, in absence of voluntary abdication or limitation thereof by her organic law, the decision of the Supreme Court of the United States in the famous Slaughter house cases shows that it is more than ample to authorize such an exercise thereof as is presented by the ordinance under consideration, and places it beyond question that the ordinance violates no provision of the Constitution of the United States. Slaughter House Cases, 16 Wall. 36.

This decision further eliminates all applicability of the following decisions, and others like them, to the instant case: Yick Wo vs. Hopkins, 118 U. S. 356; State vs. Mahner, 43 An. 496; State vs. Garibaldi, 44 An.

These latter cases relate to such businesses as laundries, dairies and private markets, as to which the necessity of police control is less exigent, and moreover, the municipal ordinances therein involved were not sustained by any such broad grant of power as that delegated by our Constitution over the subject of slaughter houses.

Our inquiry is, therefore, narrowed to the question whether or not -the ordinance violates Art. 248 of the State Constitution.

When we analyze that article, we find only three limitations imposed on the city’s power over this subject, which, as above shown, we have held to embrace the whole police power of the State, except so far as thus limited.

These limitations are:

1. That no monopoly or exclusive privilege shall be granted.

2. That the business shall not be restricted to the land or houses of any individual or corporation.

3. That the city’s action mnst receive the concurrent approval of the Board of Health.

The Oonstitution imposes no other limitations and we can add none.

These ordinances simply grant to certain persons, who applied for the same, the privilege of establishing and operating a slaughter house within certain designated limits, upon certain terms and conditions. No monopolous or exclusive privilege is conferred by either the terms or any possible construction of the ordinance, nor does it contain any provision restricting the business of slaughtering to the land or houses of defendants. Nothing prevents the city from permitting the establishment of other slaughter houses by other persons, either within the limits designated or, for that matter, elsewhere.

The decision in the slaughter house eases, above referred to, distinctly recognized the right of the State, in the exercise of its inherent police power, to establish public slaughter houses or to delegate the power of establishing such either to a municipal corporation, or to a private corporation or to individuals; and the court, in commenting on' the statute then before it, proceeded to say: “ Unless, therefore, it can be maintained that the exclusive privilege granted by this charter to the corporation is beyond the power of the Legislature of Louisiana, there can be no just exception to the validity of the statute.”

The dissenting justices in that case did not question the general power of the State over this subject, save in the single feature of the exclusiveness of the grant.

On the contrary, in a later case, Mr. Justice Field, who was the organ of the dissenting justices, said: “No one of the judges who then disagreed with the majority of the court denied that the States possessed the fullest power ever claimed by the most earnest advocate of their reserved rights to prescribe regulations affecting the health, the good order, the morals, the peace and the safety of so - ciety within their respective limits. * * * The act of Louisiana required that the slaughtering of cattle and the preparation of animal food for market should be done outside the limits of the city of New Orleans. It was competent to make this requirement, and furthermore to direct that the animals, before being slaughtered, should be inspected in order to determine whether they were in fit condition to be prepared for food. The dissenting judges in the slaughter house cases found no fault with these provisions, but, on the contrary, approved of them.

“ Had the act been limited to them, there would have been no, dissent. But it went a great way beyond them. It created a corporation, and gave to it an exclusive right for twenty-five years to keep within an area of 1145 square miles, a place where, alone, animals intended for slaughter could be landed and sheltered, and where, alone, they could be slaughtered and their meat prepared for market.” Butchers’ Co. vs. Crescent City Co., 111 U. S. 754.

In the case just cited, the unanimous court held that the provision of Art. 258 of our present Constitution, repealing the “monopoly features” in the charter of this and of other corporations, was valid and effective, but shorn of these “ monopoly features,” no one questions that the charter remains otherwise in force, and secures the right of the company to continue its business at least until withdrawn by competent authority.

Inasmuch as the ordinances now under consideration contain no “ monopoly features,” it can not be doubted that they would be sustained' by the Supreme Court of the United States.

“A monopoly,” says Justice Field, “ is defined to be an institution or allowance from the sovereign power of the State, by grant, commission or otherwise, to any person or corporation for the sole buying, selling, making, working or using of anything whereby any person or persons, bodies politic or corporate, are sought to be restrained of any freedom or liberty they had before, or hindered in their lawful trade.”

No allowance of any such sole or exclusive right is contained in these ordinances. No person is restrained of any freedom or liberty they had before or is hindered in any lawful trade.

The most that can be said is that the ordinances do not expressly confer upon others than the defendants the present right to establish slaughter houses within the limits designated. Non constat that others wish to do so, or have applied and been refused, or will encounter any hindrance whatever in doing it. It will be time enough for us to pass upon such issues when they arise. Certainly these plaintiffs set up no infringement of their rights in this respect. The unrestricted privilege of establishing slaughter houses within the limits designated would not relieve, but aggravate, the injury complained of by them.

There is nothing, however, in the language of Art. 248 of the Constitution which supports the contention that the power delegated is confined to that affixing limits within which all persons shall be at liberty to establish slaughterhouses on complying with the conditions prescribed. The article contains two affirmative delegations of power, viz.:

1. Exclusive power “to regulate the slaughtering of cattle and other live stock within their limits.”

2. The power to pass “ ordinances designating the places for slaughtering.”

Tho second is a mere branch of the first general power and not exclusive in its terms.

Considering the importance of the police power over this subject and that the whole police power of the State over it is delegated to the city, we are bound to give it a liberal construction and to respect the discretion of the city in a matter so important to the health and well-being of the citizens, unless convinced, upon complaint of parties whose rights are infringed, that it operates the creation of a monopoly or exclusive privilege in violation of the Constitution.

No such consequence necessarily flows from the execution of these ordinances, and no parties are before us claiming infringement of their equal rights to pursue the business within th,e designated limits. See Cooley Const. Lim., 4 Ed., p 199.

II.

The next ground is that the ordinance is not operative for want of the “concurrent approval of the Board of Health,” as required by Constitution.

We have reproduced the resolutions of the Board of Health approving the ordinances, the genuineness of which is not disputed. But it appears that when the ordinances were first presented to the board, it adopted resolutions declining to approve them, which action was communicated to the City Council; and it is claimed that, after this, the board could not rescind its action and grant a valid approval.

The Constitution requires'nothing but that the ordinances shall be passed by the council and shall be approved by the Board of Health. We have before us the ordinances duly passed and the approval of the Board of Health expressed in a formal resolution adopted by the board. What more can we require? The Constitution fixes no time or mode in which the approval of the board shall be made.

The first disapproval by the board did not annul or cancel the ordinance. It simply remained ineffective for want of such approval. The council has never reconsidered or rescinded the ordinance. It still stands upon the city’s records as an existing ordinance, and since we hear no complaint from the council as to the time or method of the board’s action, we may presume that it persists in its action as expressed thereby. We can perceive no reason why the board’s, action in first disapproving should prevent it from afterward changing its mind, for reasons doubtless good, and approving it, so long, at least, as the council maintained the ordinance. The council, could repeal the ordinance before or after approval by the board. Not having done so, the ordinance and the approval coexist and the constitutional requirement is satisfied. Nor can we listen to complaints of violation by the board of its own rules of parliamentary proceeding. We, and the public, are simply concerned'with the fact and not with the method of the board’s approval. The constitutional purpose was to protect the people against inconsiderate action by the council in establishing slaughter houses in localities where they might endanger the public health, and with that end in view, to require such ordinances first to receive the sanction of the authorities specially charged with the care of the public health, and so organized as to enable them to give an expert and scientific judgment on such matters. That purpose is fully accomplished in this case, in which the Board of Health has acted deliberately and unequivocally.

The argument of plaintiff’s able counsel is based upon a false-analogy which likens the action of the council and Board of Health to that of two concurrent legislative bodies such as the Senate and House of Representatives in the General Assembly.

The Board of Health is not vested with any proper legislative function in this case. It has no part in passing the ordinances, and no power to amend them. Its only function is to say whether they approve or disapprove them. The case is not dissimilar to one recently decided by us, where the statute required certain action in relation to tax assessments to be submitted to the City Council “ for its approval or rejection.” We then said: “ The action here involved no function of law making. It was simply an expression of the will of the council, approving the report of the committee,. which was all the statute required. The action conclusively shows that the council approved the report. It is not a law in any sense; it is a simple decision by the council of a question required to be submitted to it under the statute, viz., ( shall the report of the committee be approved or rejected.’ ” Board vs. Thoman, 42 An. 609.

III.

The final ground for injunction is that the slaughter house proposed to be erected will be a private nuisance, injurious to plaintiffs. We consider this ground entirely untenable.

The competent legislative authority under which defendants are proceeding is a complete protection against any restraint by injunction taken out in advance.

It would be a complete nullification of the police power granted to the city by the Constitution to authorize and fix the location of slaughter houses, if private persons might enjoin in advance the execution of ordinances for that purpose duly passed.

No authority is quoted sustaining relief by injunction in such a case. The general dictum quoted from various authorities to the effect that a party can always prevent by injunction the doing of an act which would give him a claim for damages obviously refers, and must be confined, to unlawful acts. The act here sought to be enjoined is a strictly lawful act, made so by the valid ordinance of the city passed in the exercise of power conferred by the Constitution itself.

In the performance of this lawful act it may be that damages will be inflicted on plaintiffs for which even the legislative authorization may not exempt defendants from compensatory liability.

We shall not now enter into any discussion of the kinds and degrees of injury which might sustain an action for damages. It is sufficient to say that plaintiffs’ rights are necessarily limited to compensation for any actionable injury the execution of the law may inflict.

Mr. High lays down the principle as follows: “ A public nuisance can not exist in acts which are warranted (by law or authorized by legislative sanction, even though the act complained of might, independent of the statute, be a nuisance. Nor will a charge in the bill of special and peculiar injury to the complainant avail, if the work sought to be restrained is authorized by special legislative enactment.” High on Injunctions, Sec. 767.

He cites numerous authorities sustaining the proposition, which need not be here reproduced.

The principles involved in the following decisions of this court sustain the same conclusion: Hottinger vs. New Orleans, 42 An. 629; Bell vs. Riggs, 38 An. 555; Werges vs. Railroad, 35 An. 641; Harrison vs. Railroad, 34 An. 462.

The injuries complained of are purely prospective, and the evidence in the ease leaves it doubtful whether they will arise, or whether, at least, they have not been greatly exaggerated.

Judgment affirmed.

Concurring Opinion on Application for Rehearing.

Watkins, J.

As I understand plaintiffs’ application, complaint is made of our opinion on the five following grounds, viz.:

1. That the point made on the original hearing is, that Art. 248 of the Constitution confers on the City Council “ the power of regulating the slaughtering of cattle,” etc., not the right of establishing slaughterhouses; and, hence, the latter power “has remained latent in the State, and that the Legislature has not thought proper to delegate it to the municipality,” etc.

2. That the City Council is not empowered either by its charter or the Constitution, “to grant a franchise,” such as the one drawn in question under Ordinance 5180, (!. S.

3. That, while not doubting that said ordinance does not grant the defendants a monopoly upon its face, yet it docs it in fact.

4. That, while it is true that the ordinance protects the establishment of the proposed slaughter house from interference by injunction, on the score of its being a public nuisance, yet it can not afford like protection to the acts of private individuals operating under it, which, in themselves, constitute a private nuisance.

5. That the establishment of a slaughter house in the immediate vicinity of the plaintiffs’ residences would compel their abandonment, and result in the virtual expropriation of their property without adequate compensation previously paid, in the sense of the State and Federal Constitutions.

I and II.

Our opinion fully disposed of the first two grounds of complaint, in affirming the correctness of our opinion in Villavaso vs. Barthet, to the effect “ that the framers of the Constitution intended to vest in fclie enumerated subdivisions of the State, within their respective limits, the whole power inherent to a sovereign, touching the regulation of the slaughtering of animals for food;” and that “ the power thus delegated is as complete, unrestrained and unshackled as it originally existed in the State itself, and its exercise can be circumscribed by no limits or conditions which could not apply to the State or to the sovereign whence it arises.”

And in the further statement made in comment upon that opinion “that the Constitution confers upon the city of New Orleans the whole police power over this subject which belongs to the State herself, and subject to no limitations, except those expressly imposed by the terms of the constitutional grant itselfhence there seems to remain no room for doubt upon the subject.

If, indeed, the Constitution did confer upon the city the whole police power over the subject which belonged to the State, it is difficult to understand why the city is not possessed of power to establish slaughter lioitses, in the sense of the ordinance in question, as well as to regulate thorn or, for that matter, to grant a franchise such as it has conferred on the defendants.

Conceding the correctness of the principles announced to the contrary, as quoted by counsel from opinions of courts in other States, tlio organic laws whereof contain no similar delegation of police power to municipalities; anl, also, the correctness of other quoted decisions of this court, on other questions nob controlled by any constitutional grant — anl yot, the correct jess of our opinion stands unimpeaehed.

III.

With reference to the objection (fiat > f>c ordinance grants the defendant a monopoly in. fact, though not on its face, counsel’s argument is not convincing to inv urnd.

His insistence is that not only does Ordinance No. 5180, O. S., confer a franchise on the defendants, but that it repealed all other ordinances upon the same subject matter, thus leaving the defendants practically without competition.

But counsel has failed to note thatthe ordinance contains a clause saving the rights of “any and all slaughter houses now operated in this city.” And it is also worthy of observation that in an amendment to Ordinance 5180, O. S., there is a provision to the effect that it “ shall not be construed as granting an exclusive privilege.”

In construing the ordinance as amended, our opinion emphatically •declares that “ no monopolous or exclusive privilege is conferred by -either the terms or any possible construction of the ordinance, nor does it contain any provision restricting the business of slaughtering to the land or houses of defendants. Nothing prevents the city from permitting the establishment of other slaughter houses, by other persons, either within the limits designated, or, for that matter, elsewhere.”

To this, counsel opposes the argument that the proposed limits of the defendants’ slaughter house comprise only three squares front •on the Mississippi river, by seven squares in depth; and the suggestion is made, that if other parties applied to the City Council for the same privilege, to be exercised o*n the same premises as that designated for the defendants, it would be refused, and “ hence the monopoly of right;” but if granted it would be useless, “ and hence a monopoly in fact.”

But the exclusiveness of the grant, or regulation provided for in •the ordinance, is not the one contemplated by the Constitution as constituting a monopoly.

The precepts of the Constitution are (1) that the “incorporated municipalities of this State shall alone have the power of regulating the slaughtering of cattle and other live stock within their respective limits;” (2) “no monopoly or exclusive privilege shall exist in the State;” (3) “nor (shall) such business be restricted to the land or houses of any individual or corporation.”

Clearly, the constitutional intendment is that there should not be granted to any person or corporation the exclusive right of slaughtering cattle within the limits of the municipality; nor should the conduct ■of such business “ be restricted to the land or houses of any individual or corporation.”

Hence, if the illustration furnished by counsel be accepted as true in point of fact, the ordinance under consideration would not be subject to constitutional inhibition as grantingamonopolousfranchise.

IV.

In determining the question of private nuisance vel non, less reliance must be placed upon the case stated on the plaintiffs’ petition -than on that presented upon the face of the ordinance, and the eon■eurrent approval of the Board of Health, in so far as concerns their ¡present right to an injunction restraining the defendants from establishing a slaughter house.

As to what may be the ultimate effect of such establishment, as to the manner in which same may be conducted, on the rights of plaintiffs, is a totally different question.

Reference to the ordinance discloses that in contemplation thereof the slaughtering of animals was to be prosecuted under a new and scientific process, which would exempt the business from many of its most objectionable features, and the approval of the ordinance by the Board of Health was specially conditioned upon “ their right of inspection of all plans for the construction of said slaughter house, and requiring same to embody and contain the most approved modern devices and appliances for maintaining, not only the sanitary ■conditions of health of animals before slaughter, but the preservation ■of meats between slaughter and sale, and also the prompt removal and disposition of blood and all other offal, and the perfect cleanliness of the live stock stalls,” etc.

We feel bound to assume that the City Council and the Board of Health will see to it' that these provisions of the ordinance of the ■one, and the resolution of the other, are faithfully carried out, but if they should not, and private nuisance result to the plaintiffs thereby, the right is fully reserved to them to claim and prove dam.ages commensurate with the injury sustained.

V.

The argument presented in the preceding paragraph is fully applicable to this one, and is necessarily predicated upon it.

Whether or not the defendants’ slaughtering establishment will be ■so conducted as to compel the plaintiffs to abandon their property is a question for the future.

Established and operated, as is evidently contemplated by the ■ordinance of the City Council and the resolution of the Board of Health, there would be no room for such grave apprehension; and judgment can not be founded upon a simple apprehension of injury to result in the future from a plain violation of both the ordinance and the resolution.

Upon careful reflection and a thorough re-examination of the case I am of the deliberate conviction that our opinion is well grounded in law.