author: Howell, J. Morgan, J.,

text:
    No. 5688.
    George Wailes and S. Mathews v. Succession of James N. Brown.
    The right of an attorney to remuneration depends on a contract or appointment, and he can not recover from one who did not employ him, however valuable may he the result of his services to such person.
    APPEAL from the Fifth Judicial District Court, parish of Iberville. Deioing, J.

      JS. B. Talbot, for plaintiffs and appellees. Barrow & Pope, for defendant and appellant.
   Howell, J.

The plaintiffs, who are attorneys at law, sue the succession of James N. Brown for one thousand dollars for professional services, alleged to have been rendered to said succession, at the request of one of the heirs in the suit instituted by her for the removal of the dative testamentary executor, entitled: “Mary E. Brown and husband v. James A. Ventress,” which resulted successfully.

The answer is that the alleged services were rendered at the request and for the benefit of the plaintiffs in said suit, which was instituted and carried on against the express wishes of the other heirs, who joined in the defense thereof.

Judgment was rendered in favor of plaintiffs for six hundred dollars, and both parties appealed.

On the trial below the plaintiffs offered the opposition of one of the heirs to an account filed by the dative testamentary executor before his removal, and extracts from the testimony thereon of said opponent and that of another heir, both of whom had opposed the removal, in order to prove that they did so in error and under the influence of false representations made to them by said dative testamentary executor of the correctness and faithfulness of his administration.

This evidence is'in the record and, if admissible, it does not prove that the said heirs changed their position in the destitution suit and joined the plaintiffs therein. It seems from the evidence that the said heirs became aware of the alleged misrepresentations after the judgment of destitution was rendered.

The main question is, is the succession liable for this claim ?

Plaintiffs rely on the case of Friend v. Graham’s administrator, 10 La. 440, to maintain the affirmation. In that case the court said: “The removal of the curator inured to the benefit of the succession, i. e., the creditors and heirs, qui senüt commodum, débet sentiré et onus. If the succession, after paying the creditors of the deceased, leave nothing' for the heirs, the former will be exclusively benefited by the services of the plaintiffs. Should there be a surplus for the heirs, then the debts of the succession will be taken therefrom. In either case justice will be done.

The court of probates did not err in sustaining the claim of plaintiffs against the succession, although “the services (professional) were rendered at the request of some of the heirs.”

This, it is contended, is overruled in the case of Roselius v. Delahaise, 5 An. 481, where the principle was established that the right of an attorney at law to remuneration depends on a contract (or appointment) and that he can not recover from one who did not employ him, however valuable may be the result of his services to such person.

This, we think, is the correct doctrine and the one which has since been followed. See 11 An. 596.

In reference to the case in 10 La., above cited, it may be said, that no one heir, as such, represents the succession, so as to bind it, and if he thinks his interest in the succession is of such extent or importance as to warrant him in sueing for the removal of the curator or other representative, lie should bear the expense of the counsel employed by him for that purpose. He could hardly expect the succession to pay the fee if he failed.

It is therefore ordered that the judgment appealed from be reversed and that there be judgment in favor of the defendant, with costs in both courts.

Morgan, J.,

dissenting. In this case I dissent, and I will file my reasons therefor hereafter.


source: Caselaw Access Project

author: Ludeling, C. J.

license: Public Domain

text:
    No. 5505.
    City of New Orleans v. S. P. Russ.
    The question in tliis case is not about taxing the lots of ground which belong to the Poydras Female Orphan Asylum, but about taxing the buildings and improvements thereon, placed there under a contract which malíes them the property of the lessee and therefore liable to taxation thereon. There is no doubt about the right of the city to collect taxes on said property from the defendant.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      George 8. Lacey, city attorney, and 8. P. Blanc, assistant' city attorney, for plaintiff and appellee. Prank N. Butler, H. J. Grover and It. H. Marr, for defendant and appellant.
   Ludeling, C. J.

This suit is to recover from defendant $1150 75, with interest, being for the taxes of 1871, 1872 and 1873, upon the assessed value of the buildings and improvements on certain lots, which belong to the Poydras Female Orphan Asylum, and which lots were leased in 1856 to the defendant’s transferrer for the term of fifty years. The defense is that the property belongs to the Poydras Female Orphan Asylum, and the property of that institution is exempt from taxation.

The best answer to this defense is the contract between the Asylum and R. W. Montgomery, through whom the defendant holds. Among other stipulations the act states that Montgomery'binds himself “to place upon said lots buildings and improvements to the value of not less than nine thousand one hundred and fifty dollars,” and the said asylum “agreed to purchase, at the expiration of this lease, such improvements as may be then upon said lots, at the value put upon them by two experts.”

If the asylum has to buy these buildings it is certain they do not belong to them. One can not buy what already belongs to him.

But this is expressly admitted by the defendants, in admitting “that all the averments of the plaintiff’s petition are true, except the allegation of defendant’s liability.”

The buildings and improvements on the lots being shown to belong to the defendant he must pay the taxes thereon. The case of Connell v. Orphan Asylum and Dr. Campbell, was a suit upon a paving contract. Such work is made a charge upon the proprietors of adjacent lands, by the city charter of 1856. It is, therefore, not in point; neither is the case of the State v. Campbell, 23 An. 445, as will appear from the opinion of the court. The court saM “this is a suit against defendant to recover the State taxes for 1809, on a lot of ground forming the corner of St. Charles and Julia streets. * * * The answer is, the defendant is not the owner of the lot of ground described in the petition ; that said lot belongs to • the Poydras Female Orphan Asylum, and is by law éxempt from taxation.”

There is no question here about taxing the lots of ground which belong to the asylum, but the question is about taxing the buildings and improvements-thereon, placed there under a contract which makes them the property of the lessee. We have no doubt about the right of the city to collect taxes on said property. Constitution, art. 118.

It is therefore ordered that the judgment of the District Court be affirmed with costs of appeal.


author: Ludeling, C. J. Wyly J.,

text:
    No. 3507.
    The City of New Orleans v. New Orleans, Mobile and Chattanooga Railroad Company.
    The joint resolution of tlie Legislature upon wliicli defendant relies in this case and the title of which is: “A joint resolution m relation to the New Orleans, Mobile and Chattanooga [Railroad Company, a corporation of the State of Alabama,” sufficiently discloses the object of the resolution. It is not therefore unconstitutional.
    The public servitude along the banks of rivers in Louisiana is under the control of the (General Assembly. The right of that body to grant the privilege to corporations or individuals to make and maintain wharves has long been settled. In this instance the State . granted the right to the riparian owner. This is permissible. The grant was not a donation of public revenues to a private purpose. It was the control by the Legislature of a public servitude.
    APPEAL from the Fourth District Court, parish of Orleans. TMard, J.

      George S. Lacey, A. O. Lewis, W. W. King, for plaintiff and appellant. J. A. Campbell, for defendant and appellee.
   Ludeling, C. J.

This is a suit for $764 20, for levee dues charged against the defendant, for barges and flatboats belonging to the company, and lying at the wharves of the company.

It is admitted the charges are correct if due by the defendant. It is admitted that the barges, etc., were moored at the wharf described in the resolution adopted by the General Assembly in March, 1869, which is situated in the Delord suburb of this city, and that the company was in possession of said wharf, under said resolution, during the period for which the charges are made; and that the barges, etc., were used in the business of the company.

The defense is that under said resolution of the General Assembly the defendant is exempted from wharfage dues for barges, etc., which land at the said wharf.

The city urges three objections to this joint resolution.

First — Its unconstitutionally, because its title does not declare its-object, and because its provisions create an inequality in taxation.

Second — Because the Legislature has not the power to control the municipal wharves and levees, and the dues and charges arising therefrom.

Third — Because the Legislature transcended legislative power by donating public revenues to a private purpose.

The title of the resolution is, A Joint Resolution in relation to the New Orleans, Mobile and Chattanooga Railroad Company, a corporation of the State of Alabama.” It gave the company the right to inclose and occupy for its purposes and uses, that portion of the levee batture and wharf in New Orleans, in front of the riparian property which the company had acquired. The act further exempted from the payment of wharfage and levee dues, vessels, etc., landing at said wharf with the consent of the company, and imposed the obligation on the company to maintain and keep in repair said wharf.

First — We think the title sufficiently discloses the object of the resolution. See 14 An. 7, Williams v. Paysan; 9 An. 329; 20 An. 196, Police Jury v. Colomb. There is no question of taxation in this case.

Second — The public servitude along the banks of rivers in Louisiana is under the control of the General Assembly. C. C. 453, 455, 458. The right of the General Assembly to grant the right to corporations or individuals to make and maintain wharves has been long settled. 5 An. 661; 15 An. 577 ; 22 An. 545; 6 N. Y. 523; 26 N. Y. 287.

Third — In the ease now under consideration, the State granted the right to the riparian owner. This is permissible. 1 Black. 1.

Nor was the grant a donation of public revenues to a private purpose. The grant is a license to a railroad company to use its property on the river bank for public purposes, to wit: to facilitate the transaction of its business with the public. It was the control, by the Legislature, of a public servitude.

It is therefore ordered and adjudged that the judgment of the lower court be affirmed with costs of appeal.

Wyly J.,

dissenting. The defendants resist this demand of the city of New Orleans on an account of $764 20 for levee dues, on the ground mentioned in tlie statement of facts upon which the case was submitted in the court below. And it is as follows: The defendants resist the payment by virtue of a joint resolution of the General Assembly of the State of Louisiana, approved March 6, 1869;” * * * which they claim exempts them from the payment of all levee and wharf dues to the city of New Orleans.

The plaintiff contends that this joint resolution is repugnant to article 114 of the constitution, and is therefore void.

The title is, “A Joint Resolution in relation to the New Orleans, Mobile and Chattanooga Railroad Company, a corporation of the State of Alabama.” The statute provides: “That there shall be and is hereby granted to the New Orleans, Mobile and Chattanooga Railroad Company, a corporation of the State of Alabama, the right to inclose and occupy for its purposes and uses, in such manner as the directors of said company may determine, that portion of the levee batture and wharf of the city of New Orleans, between the street laid out between Pilie street and the Mississippi river, and from Calliope street to the lower line (about three hundred and fifty-five feet below Calliope street) of the batture rights owned by said company, and no steamship or other vessel shall occupy or lie at said wharf, or receive or discharge cargo thereat, except by and with the consent of said company; and all steamships or vessels discharging or receiving cargo at said wharf of said company, or any steamships or other vessels using said wharf by and with the consent of said company, and not receiving or discharging cargo at, or occupying any other wharf in the city of New Orleans, shall be exempt from the payment of all levee and wharf dues to the city of New Orleans; said wharf shall be maintained and kept in repair by said company. That all laws and parts of laws, and all ordinances and parts of ordinances conflicting with the provisions of this joint resolution are hereby repealed, so far as they affect the provisions of this joint resolution.”

There is nothing in the title of the law indicating the object to exempt any ships or other vessels landing at the port of New Orleans from the payment of levee and wharfage dues. In the title no hint or clue is given showing the object of the law to confer any advantage on the defendants over any other persons, in regard to exemption from paying levee dues. Nor does it disclose the purpose of allowing the defendants to inclose and have the exclusive right to occupy a part of the levee and wharf of the city of New Orleans.

I think the exemption claimed should not be allowed, because the law granting it is repugnant to article 114 of the constitution and is void. I therefore dissent in this case.


author: Taliaferro, J. Wtlx, J., Howell, J.,

text:
    No. 5298.
    City of New Orleans et als. v. James Stafford.
    It does not follow ‘because the city has leased the markets for the year 1874 that it loses all interest in the management of them and in seeing that the laws and regulations .concerning them are carried into effect. The act of 1874 makes it the duty of the city through its administrators to take measures for carrying out the provisions of the act regulating private markets, and in any issue that may arise in acting under this authority the city would “be competent to stand in judgment.
    The Legislature had the power to make the regulation, which it has made by the act of the twenty-sixth February, 1874, declaring that private markets shall not be established, continued, or kept open within twelve squares of a public market. This power arises from the nature of things, and is what is termed a police power. It springs from the great principle 11 salus populi suprema est lex” There is in the defendant's case no room for any well grounded complaint of the violation of a vested right, for if he really possessed the privilege of keeping a private market, that privilege was acquired subordinately to the right existing in the sovereign to exercise the police power in regulating the peace and good order of the city,- and in providing for and maintaining its cleanliness and salubrity. The act of 1874 is not unconstitutional.
    •The act of the twenty-sixth February, 1874, is not in violation of article 114 of the State constitution. The act has but one objoot; that one object is expressed in the title. The words “and for other purposes,” are in the title to this act meaningless, for there is nothing else treated of in it besides the regulation of private markets.
    The act of 1874 abolishes all private markets located within less than twelve squares of a public market. To that extent it repeals the act of 1866, under which the defendant sets up its title.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Lacey & Butler, for plaintiffs and appellants. LJ. Mlleul, for defendant and appellee.
   Taliaferro, J.

It is charged against the defendant that in open violation of existing laws and regulations appertaining to the markets of the city for vending provisions of various- kinds for the sustenance of the inhabitants, he is keeping a private market, at which he is selling meats and other articles of provisions contrary to the said laws and municipal regulations, and thereby endangering the peace and good order of the city, putting in jeopardy the cleanliness and salubrity and the health and quietude of the inhabitants thereof, and furthermore subjecting the said city to a pecuniary loss and injury in an amount greatly in excess of one thousand dollars. The plaintiff prayed that an injunction be granted restraining the defendant from keeping open and conducting a private market, as, alleged hv the petitioner, the defendant is doing in violation of law. A rule was served upon the defendant to show cause why the injunction prayed for should not he granted, and the defendant answered: That the act of 1874 of the Legislature, providing that no private market should be permitted at any place in the city within the distance of twelve squares of a public market, is unconstitutional and void, because it was procured by bribery and corruption; because its title does not disclose or indicate its purposes; that it violates the constitution of the United States •, because it creates an involuntary servitude; that it abridges the privi leges and immunities of the citizens; that it deprives them of their property without duo process of law. The defendant contends that having taken his license under the act 134 of 1866 he is entitled to keep a private market at the corner of St. Peter and Decatur streets during the space of one year, beginning January 1, 1874, and ending thirty-first of December, 1874; that this right having once vested it can not be taken away. He further contends that the city is without interest, having sold the revenues of the markets for the year 1874.

The application of the plaintiff for an injunction was dismissed at his costs, and the plaintiff has appealed.

The act of the Legislature authorizing private markets for the sale of meats, fish, poultry, etc., was passed in 1866 ; that act directs that keepers of private markets shall pay the same license that is required from retailers of provisions. The words of the statute are: ‘‘ Prom and after the first of January, 1867, it shall be lawful for all persons, after they have obtained the license required for retailers of provisions, to open, and keep open at all proper hours of the day, private markets, stores, or stands in any part of the city of New Orleans for the sale of meats, game, poultry, vegetables, fruit and fresh fish, subject to the general sanitary ordinances of the City Council.”

By the act of 1870, enlarging the limits of the city of New Orleans, and to provide for thfe government and administration of the affairs of the city, power is granted to the city to establish market places; and through its department of commerce to have general superintendence of all matters relating to markets. The City Council is vested with full power and authority to make and pass such by-laws and ordinances as are necessary and proper to regulate and preserve the peace and good order of the city and provide for and maintain its cleanliness and salubrity not inconsistent with any law relating thereto.” On the second December, 1873, the City Council passed an ordinance making the license for private markets $300. On the twenty-sixth of February, 1874, the defendant in this case took out from the State a wholesale dealer’s license on the payment of one hundred dollars. This license was taken out near three months after the'passage of the city ordinance requiring a license of three hundred dollars from the keepers of private markets. In the same ordinance the license of wholesale dealers is fixed at one hundred dollars. If the defendant was bound to take a license from the city for keeping a private market it is clear that he has not done it. But he relies upon the license from the State under the statute of 1866. This statute, as to the amount of the license fixed for private markets, is not quite definite— the license is to be that which is paid by “retailers of provisions.” We do not find from the record nor from the statutes of 1866 what the amount of that license was. We assume, however, that the defendant holds that his license as a wholesale dealer covers it whatever it maybe. Considering the act of the Legislature of 1866, together with the ordinance of the city of second December, 1873, passed more than two months before the date of the defendant’s license, we can not but consider his claim, to a license for the year 1874 at best as very questionable. It is not important that we should pass directly upon the question. A prominent ground of defense, and one upon which the judge a quo seems to have laid much stress, is that the city is without interest in the matter, having lea'sed or-farmed out the markets for the year 1874. We do not see that it follows because the city has leased the markets for the year 1874 it loses all interest in the management of them, in seeing that the laws and regulations concerning them are carried into effect. The act of 1874 makes it the duty of the city-through its administrator to take measures for carrying out the provisions of the act regulating private markets, and in any issue that may arise in acting under this authority the city would be competent to stand in judgment.

We pass now to the consideration of the most important question raised in this controversy. Has the Legislature the power to make the regulation which it has made by this act of twenty-sixth February, 1874, declaring that private markets shall not be established, con-' tinued, or kept open within twelve squares of a public market 9 This question, we think, must be answered in the affirmative. And the power arises from the nature of things, and is what is termed a police power. It springs from the great principle, “ solus populi suprema est lexP There is in the defendant’s case no room for any well grounded complaint of the violation of a vested private right, for the privilege, if he really possessed it, of keeping a private market, was acquired subordinately to the right existing in the sovereign to exercise the police power to regulate the peace and good order of the city, and to provide for and maintain its cleanliness and salubrity. By way of illustrating this necessarily existing power to regulate the number, location and management of markets, take the city of New Orleans, in a warm climate, located in a low district of country, surrounded by marshes and swamps, which, in the hot season, under favorable conditions, envelopes its large population in a malarious atmosphere. Under such circumstances the danger of epidemics becomes imminent. It behooves the city authorities at such periods to be on the alert to obviate local causes of disease within the limits of the city. Among such causes the decay of animal and vegitable matter is a prominent one. The markets, therefore, must on that account be strictly attended to, and such measures adopted in regard to them as, in the judgment of the proper authorities, the public health may require. Suppose under such a condition of things it should be found necessary as a sanitary regulation to reduce the number of markets, to abolish some of them, and thereby avoid their becoming causes of disease. Suppose the lessee of a public market and the keeper of a private market should find the markets under their control abolished, closed or suspended, from considerations of public security and benefit, before the expiration of the time for which their licenses were to continue; could they be sustained by law in a demand to be permitted to continue and keep open the markets they had charge of, on the pretense that they had a vested right to keep them open 9 Surely not. Their private benefit and advantage would have to yield to the public advantage. It would be a perversion of the principles of organized society and of regulated liberty to permit an individual to continue a business or occupation endangering the public health in order that he might derive profit from such occupation. We presume it will not be denied that under circumstances of peril and emergency the lawmaker would have the right to abolish or suspend an occupation imperiling the public safety. This power is inherent in him. He may exercise it prospectively for prevention as well as pro re nata for immediate effect. It is within his discretion when to exercise this power; and persons under license to pursue such occupations as may, in the public need and interest be affected by the exercise of the police power, embark in those occupations subject to the disadvantages which may result from a legal exercise of that power. The act of the General Assembly of twenty-sixth February, 1874, entitled “An act to regulate the private markets in the city of New Orleans and for other purposes,” does not violate or infringe any vested right. It is not unconstitutional.

The defendant charges that the passage of the act was procured by bribery and corruption ; that it was conceived in fraud, and its title designed to defraud. This is ooram non, judiee. Courts will not be influenced by mere allegations of this kind, unsupported by any evidence whatever, to disregard the maxim uommaprcesmimntur reete esse acta

It is objected that the law of February 26, 1874, is unconstitutional and void, as being in violation of article 114 of the State constitution, which directs that “ every law shall express its object or objects in its title.” We think the objection without weight. The act has but one object, that one object is expressed in its title. The title misleads nobody. The words and for other purposes” are in the title to this act meaningless, for there is nothing else treated of in the act besides the regulation of private markets. Its purpose is simplex dimtaxat et unum.

The act of February, 1874, abolishes all private markets located within less than twelve squares of a public market. To that extent it repeals the act of 1866 under which the defendant sets up his rights.It is shown that he is keeping a private market within one square of the French market, one of the principal public markets of the city. He is doing so in violation of law. We think the judgment of the-court a qua sustaining the defendant erroneous.

It is therefore ordered that the judgment of the district court be-annulled, avoided and set aside. It is further ordered that the injunction prayed for by the plaintiff be granted and perpetuated enjoining and restraining the defendant from opening, conducting, carrying on or continuing any private market or place of business for the sale of fresh meats, fresh fish, poultry, game, vegetables, etc., in the city of New Orleans, within the space, or distance of twelve squares of any public market under the jurisdiction and authority of the Administrator of Commerce of said city, and otherwise violating in any manner the provisions of an act entitled “An act to regulate the private markets in the city of New Orleans and for other purposes,” passed by the General Assembly of the State of Louisiana on the twenty-sixth of January, 1874. It is further ordered that the plaintiff recover from the defendant one hundred dollars, and that the defendant pay costs in both courts.

Wtlx, J.,

dissenting. Section 1 of act No. 134 of the acts of 1866 provides “ that from and after the first day of January, 1867, it shall be lawful for all persons after they have obtained the license required for retailers of provisions to open and keep open at all proper hours of the day private markets, stores or stands, in any part of the city of New Orleans for the sale of meats, game, poultry, vegetables, fruit, and fresh fish, subject to the general sanitary ordinances of the City Council. In the record I find that the defendant, James Stafford, obtained State and city licenses as a wholesale merchant for the year ending thirty-first December, 1874. Under these licenses he has authority to sell at retail. He has all the “licenses required for retailers of provisions.” Having the licenses required for retailers of provisions, James Stafford fully complied with the act of 1866, and his contract made in pursuance thereof is protected by the constitution of the United States, and it is in no manner impaired by.the act No. 31 of acts of 1874, which was passed after said contract was made.

The plaintiffs, however, contend that three months before the defendant took out licenses as a wholesale merchant, entitling him to pursue the occupation of a retailer of provisions, the city passed an ordinance fixing the license for private markets at $300; and not having paid this license the defendant was not authorized to pursue the occupation of a keeper of a private market under his wholesale dealers licenses of one hundred dollars to the State and one hundred dollars to the city. To this a sufficient answer is, that the defendant having paid the licenses required for retailers of provisions, was entitled under the act of 1866 to keep a private market; and the city had no authority to pass the ordinance fixing the additional license or tax of $300. As the State had the right to pass the law and fix the conditions upon which it would allow private markets, the city of New Orleans could not impose an additional condition without asserting the right to amend a law of the State. When the State says that all persons may keep private markets upon taking out the licenses required for retailers of provisions, the city of New Orleans has no right to defeat or restrict the will of the sovereign by passing an ordinance requiring an additional tax or license of $300. The defendant paid the license required of retailers of provisions; he accepted the offer of the State contained in the act of 1866; and the contract was perfected by which he acquired the right to keep a private market at his store for the year 1874.

Assuming that act No. 31 of the acts of 1874, is constitutional, and that it repeals that part of the act of 1866, allowing private markets within twelve squares of a public market, in my opinion this law, passed after the defendant’s rights were acquired, in no manner affected him. During the period fixed in the licenses, the defendant has the right to keep a private market. The State can not destroy this right without impairing the obligation of a contract. It is useless to talk of the exercise of police power by the State in the interest of public order and the health of the city. No one questions the right of the State to pass needful laws for the preservation of these important interests. No one has the right to pursue an occupation detrimental to the public health and safety. But the precise question is, is the statute No. 31 of the acts of 1874, a law passed in the interest of good order and public health? How can the public health and good order be endangered by allowing private markets within twelve squares of a public market? If private markets beyond twelve squares of a public market will not endanger public health and safety, how comes it that such markets within twelve squares will be detrimental? There is nothing in the act showing that the motive of the lawgiver was to preserve good order and the public health. It is an argument suggested by the ingenuity of counsel, and in my opinion it is , entirely foreign to the issues presented in this case.

The title of the act is “An act to regulate the private markets of the city of New Orleans and for other purposes.”

Section first makes it unlawful to keep a private market for the sale of fresh méats, poultry, fresh fish, etc., within twelve squares of a public market. Section second authorizes the Administrator of Commerce to close such markets opened or conducted in violation of section one. Section third imposes a penalty for violating section one.

Section fourth makes it the duty of the judge of the First District Court to charge the grand jury as to the provisions of this act.

Section fifth provides: “That upon the reverse side of each and every license granted by the State of Louisiana or the city of New Orleans for the carrying on, conduction, and operation of a private market for the sale of fresh meat, poultry, fresh fish, etc., the following words shall be printed thereon: “ It is distinctly understood that the holder of this license shall not open, establish, or carry on a private market within twelve squares of any public market under penalty of the forfeiture of this license.”

Section sixth provides that this act shall take effect from and after its passage, and that all laws in conflict therewith are repealed.

As before remarked, there is not one word in the statute showing that it is a police law for the preservation of good order and the public health. On the contrary, from the terms of the act the conclusion is inevitable that the lawgiver simply desired to amend the act of 1866, so as to prohibit private markets for the sale of fresh meats, fish, etc., within twelve squares of a public market. And this view is confirmed by considering the fifth section, which provides that hereafter a certain stipulation shall be printed on the reverse side of the licenses to carry on a private market. It imposes a new condition in the contract arising from the taking out of licenses under the act of 1866, whereby the person taking out said licenses stipulates not to keep a private market for the sale of fresh meats, fish, etc., within twelve squares of a public market. The law before us simply adds a new condition to the standing offer of the State under the law of 1866, to sell licenses or to make a contract with any one desiring it, to keep a private market.

How the modification of an offer to make a contract can modify or alter a contract already made, I can not imagine. There was no stipulation when the defendant got his licenses for the year 1874 that he would not keep a private market within twelve squares of a public market. A stipulation proposed in a law passed subsequent to the purchase of the licenses by the defendant, forms no part of the contract which arose by the purchase of said licenses. It is a stipulation which was not demanded by the State at the time, and which was not consented to by the parties. It therefore forms no' part of the contract between the defendant and the State and is not obligatory on him.

Another reason why the statute was not passed to promote the public health is, that for that purpose this law was not necessary, the act of 1866 establishing private markets expressly stipulating that the right is granted, “ subject to the general sanitary ordinances of the City Council.” Besides, under the charter of 1870 the city has full authority to pass ordinances: To regulate and preserve the peace and good order of the city, and to provide for and maintain its cleanliness and salubrity.” * * * After confiding the care of public health and good order to the city, the State had no occasion to pass the statute before us in the interest of good order and public health.

In the absence of a motive we can not presume the statute a police regulation.

But suppose the lawgiver had declared the act a police regulation, that would not make it such. Under the name of a police law the State can not deprive a citizen of his property or the right to pursue the occupation for which he has a license, when the enjoyment of such property or the pursuit of such occupation will not endanger public health, safety, peace and good order. The enjoyment of the occupation for which the defendant has State and city licenses for the year 1874, will in no manner endanger the public interests which the State can protect under the exercise of its police power. The police power, like all powers confided to the Legislature is not unlimited; and of the extent of this power it is for the courts and not the Legislature to decide. Any other doctrine would be subversive of liberty. The Legislature could call its laws police regulations, and thereby escape all the limitations of the constitution.

I agree with the district judge that the plaintiffs have no pecuniary interest in the controversy, the city having leased out the public markets for 1874. The enforcement of the law may benefit the lessees of the public markets, because it virtually gives them a monopoly or an exclusive right over all other persons to sell fresh meats, fish, poultry, and vegetables within twelve squares of the public markets. But whether the law is enforced or not against the defendant it can confer no pecuniary benefit on the plaintiffs. The jurisdiction of this court in civil cases is limited, and as the matter in dispute does not exceed five hundred dollars this court is without jurisdiction ratione materia, and the appeal should, on that account, be dismissed.

I come now to consider the constitutionality of the statute. Article 114 of the constitution requires that the object or objects of every law shall be expressed in its title. The sole object of the act is to amend the act of 1866, so as to prohibit private markets for the sale of fresh meats, game, poultry, fresh fish, and fruit within twelve squares of a public market, the intention being to give public markets the monopoly, within such limits, of selling such produce or articles of merchandise. This, the undoubted object of the law, is not expressed in its title. The title “to regulate private markets” gives no clue to the purpose or object of the law. No one hearing the title of the act read would be apprised of the purpose to amend the act of 1866, so as to prohibit private markets for the sale of fresh meats, fish, poultry, and fruits within twelve squares of a public market. If this title be good to cover a prohibitory law within twelve squares, why would it not be equally as good to cover a law prohibiting private markets within one mile or twelve miles of a public market. To regulate suggests the idea of administering a thing, not of destroying it; the private markets we understand from the title are to be administered, all of them, in a certain way; but the title gives no clue to the destruction of any them. In my opinion the law is not covered by its title. It is repugnant to article 114 of the constitution and therefore void.

For the reasons stated I feel constrained to dissent in this case.

Howell, J.,

dissenting. In my opinion the defendant, Stafford, had complied with the law, by which he secured the right to carry on his business for one year, and that he could not be deprived of such right as is done in this case; and further, that the city of New Orleans having farmed out the public markets for the current year has no interest in the matter.

I express no opinion at this time upon the other questions involved in this proceeding.

Rehearing refused.


author: Ludeling, C. J. Wyly, J.,

text:
    No. 5618.
    Charles McAlister v. R. K. Anderson, Tax Collector.
    The State when selling a certain piece of property for taxes of 1871, due thereon, did not sell it freed from the taxes of 1872. The State had a concurrent mortgage and privilege to secure the taxes due for both years, and the sale did not purport to release the taxes of 1872. The former owner might have redeemed his land by complying with the requirements of the law after the sale, hut he could not have taken the property hack freed from the taxes of 1872. The purchaser bought the property subject to the taxes of that year,
    APPEAL from the Thirteenth Judicial District Court, parish of Carroll. Sough, J.

      Montgomery & Selony, for plaintiff and appellant. Leonard & Kennedy, and E. B. Steele, District Attorney, for defendant and appellee. ' •
   Ludeling, C. J.

In October, 1873, the plaintiff purchased, at a tax sale, a plantation in the parish of Carroll; be paid the price bid, being the full amount of the taxes and penalties due thereon for the year 1871, and the costs of sale. In June, 1874, the same property was seized and advertised for sale for the taxes assessed on said property for 1872; and the purchaser enjoins the sale, on the grounds that the State sold the property to satisfy its lien or privilege on the property for the taxes of 1871, and sold it free from all incumbrances. The question for decision is, did the State sell the -property freed from the taxes of 18721 We think not. The State had concurrent mortgages and privileges to secure the taxes due for both years, and the sale did not purport to release the taxes of 1872. The former owner might have redeemed his land by complying with the requirements of the law after the sale; but surely he would not have taken the property back freed from the taxes of 1872. The purchaser bought the property subject to the taxes of 1872.

It is therefore ordered that the judgment of the lower court be affirmed with costs of appeal.

Wyly, J.,

dissmimg. In October, 1873, the tax collector sold a plantation in the parish of Carroll known as the “ Mounds Place,” belonging to R. Tubman Keene, and Charles McAlister, plaintiff herein, became the purchaser for the price of $1806 25, being the full amount of the taxes, penalties and costs due thereon for the year 1871.

Subsequently, to wit: in June, 1874, defendant seized and advertised said property for the taxes, penalties and costs due thereon for the year 1872; thereupon plaintiff brought this suit to enjoin the sale on the grounds stated in the petition, to wit:

First — The State having sold him the land for the taxes of 1871, which was the first lien, lost thereby the privilege for the taxes of 1872, which was next in rank.

Second — There has been no legal seizure and advertisement of the property.

The court dissolved the injunction with one hundred per cent, damages, and plaintiff appeals.

In October, 1873, when the tax collector sold the lands to McAlister for taxes, penalties and costs due thereon for the year 1871, the taxes of 1872 were due.

Under sections 66, 67, 68 of the act No. 42 of the acts of 1871, the lands in question had been forfeited to the State. And in Morrison v. Larkin, tax collector, 26 An. this court decided that under the revenue acts of 1871 and 1873, such lands could be sold by the tax collector for the total amount of taxes, penalties and costs due thereon to the State, reserving to the owner the right of redemption stated in section six of act 47 of the acts of 1873; and when the bid is for less than the total amount due the State for taxes, penalties and costs, the tax collector can not adjudicate the property, because in such case the law provides, tlie bid shall be rejected.” Section 9 of act 47 of tbe acts of 1873.

Considering sections 38, 55, 57, 59, 60, 69 of act 42 of the acts of 1871, together with the title of said act, there can be no doubt that the tax collector can collect taxes on the delinquent lists, and for this purpose he can sell lands forfeited to the State, provided the amount bid is sufficient to pay all the taxes, penalties and costs due to the State. Upon payment of such sum the owner could redeem the land, the title of which, by the filing and recording of the delinquent list in the Auditor’s office, vested in the State; and it can not be presumed that the authors of the statute in question contemplated that a stranger should acquire from the tax collector a title to forfeited lands on terms more favorable than the former owner, who could only redeem by paying the State all of the taxes, penalties and costs due thereon. Nor can the statute be interpreted so as to authorize the tax collector to sell such property for less than the amount due the State, for this would involve the loss to the latter of a part of the revenues the tax collector was charged to collect. Without special authority the tax collector can not adjudicate forfeited lands for less than the total amount due the State thereon, and such authority is not to be found in the statutes before us. But this question, which has been settled, as I understand, in the cases of Morrison v. Larkin, 26 An. and Garner, administrator, v. K. K. Anderson, tax collector, lately decided, is not raised by the parties, although lying at the foundation of the action.

■ If McAlister has no title because the tax collector had no right, in October, 1873, to sell him lands forfeited to the State in December, 1871, for less than the total amount of the taxes and penalties due up to the time of the sale, he would have no interest to raise this litigation and to take out the injunction. But as the defendant has not questioned McAlister’s title, or objected to his want of interest, this court will not raise the question, however pertinent to the case. Taking the question then as presented, did McAlister, who bought from the State forfeited lands in October, 1873, paying the price of adjudication, $1806 25, the total amount of taxes and penalties for the year 1871, incur the additional obligation to pay the taxes of 1872, which accrued while the title of the property remained in his vendor, the State í I think not. The bid of McAlister was the aggregatio mentkm between the buyer and the seller. McAlister paid the amount of his bid, and the State made the title to him. She is bound as warrantor to maintain the title she has conveyed to him; and she can not claim the rescission of the sale without previously tendering to McAlister the $1806 25 which she received as the price of adjudication.

In regard to the obligations of a seller, the State, under our law, occupies no better position than any other vendor. She can not make a title to-day and destroy it to-morrow, on the pretext that while the title was in her, as from December, 1871, up to the sale in October, 1873, taxes had accrued in her own favor. McAlister certainly owed the State nothing on these lands at the time of the adjudication, but the amount of his bid, which he paid; and assuming the validity of the sale, this is what the State agreed to accept as the equivalent for the lands. Now if the court compels him to pay the additional sum of $1200, the amount claimed for taxes accruing in 1872, while the State was the owner of the lands, it will virtually make a new contract for him, or compel him to perform a stipulation not mentioned in the sale. When the buyer paid the $1806 25, the price of the adjudication, he discharged fully all his obligations resulting from his bid; and when the State accepted it and conveyed to him her title to the lands she incurred the legal obligations of every seller to maintain the vendee in the enjoyment of the thing which she gave as an equivalent for the price paid hy him.

These propositions are elementary, and there is no escape from the conclusion to which they lead, assuming that the State was the owner of the lands at the time of the sale to McAlister. That forfeited lands belong to the State was expressly decided by this court in the case of Morrison v. Larkin, tax collector, 26 An., and the same doctrine was recognized and affirmed in the case of G-arner, administrator, v. E. K. Anderson, tax collector, lately decided. Indeed this is declared by the law in precise terms. Section 68 of act 42 of the acts of 1871 provides: That the said delinquent lists, or copies and verifications, when so filed in the office of the Auditor of Public Accounts, shall be entered by him in a record kept for that purpose, and shall vest from the day of filing a title to the lands and lots therein returned, in the State of Louisiana, which shall be impeachable only on proof that taxes for nonpayment whereof the lands were returned forfeited, had been in fact paid to the collector before the return of the lists to the recorder.”

The right of redemption, however, was reserved to the owner by section 69. And by section 6 of act 47 of the acts of 1873, this right of redemption is reserved to the former owner for six months after the adjudication by the State of forfeited lands. The only reservation in the title which plaintiff received from the State, was the right of redemption reserved for six months in favor of E. Tubman Keene, the former owner of said lands, who seems to have neglected to exercise this right, and who sets up no claim to the property. In other respects the title is absolute and binds the State as warrantor.

My conclusion is, assuming tbe validity of the sale which is not questioned, the State can not destroy by selling the property for taxes of 1872, the title which'she, as owner, made to the plaintiff in October, 1873, for the price of $1806 25. She can not keep the price and take back the lands, or which is the same thing, convey them to another. The right of disposition belongs to the owner. She can not keep the price and at the same time exercise this main element of ownership over these lands. I therefore dissent in this case.


author: Wxlx, J.

text:
    No. 5480.
    State ex rel. John L. Macaulay v. Charles Clinton, Auditor.

    A mandamus will not lio against the Auditor to mate an estimate and fix the rate of the tax provided for hy act 69 of the acts of 1870. As long as this duty was imposed by law upon the Auditor, he could hy mandamus he compelled to perform it. But when hy acts 3, 4 and 55 of the acts of 1874, the law imposing this duty was repealed, and it was made a penal offense for him to do any act obstructing the funding of the obligations of the State and the other provisions of said statutes, a mandamus can not be invoked.
    The question whether the State by her legislation on the subject has impaired the obligations of her contract with the relator, is a matter that can not be decided in this controversy, because tbe State is not a party to the suit, and the Auditor has no interest in the solution of the question, The same remark is applicable to the other constitutional objections raised by the relator.
    APPEAL from the Superior District Court, parish of Orleans. HawTems, J.

      Kennard, Howe & Prentiss, for relator and appellant. H. O. Dibble, acting Attorney General, for respondent and appellee.

       Carried by writ of error to Hie Supreme Court of 'the united States.

   Wxlx, J.

The relator, the holder of certain bonds issued under act 15 of the acts of 1866, act 108 of the acts of 1868, and act 69 of the acts of 1870, sues Out a mandamus to compel the Auditor to estimate and collect a tax sufficient to pay the interest on said bonds, pursuant to the fourth section of act 69 of the acts of 1870.

The court granted a rule nisi, and at the trial refused the mandamus. Thereupon the relator appeals. f

f The duty which the relator seeks to compel the respondent to perform was imposed by the fourth section of act 69 of the acts of 1870 j but he refuses to comply with the demand on the ground that said section imposing said duty is repealed by acts 3, 4 and 55 of the acts of 1874.

Section four of act 69 of the acts of 1870 provides: “ That the Auditor of Public Accounts shall, once in each year, estimate the amount of the annual interest on all the bonds issued under the provisions of this act, together with a sum equal to one-fortieth part of the bonds issued, and calculate as nearly as practicable what rate of tax on tbe total assessed real and personal property of the State will be required to produce tbe sums aforesaid; and he shall add the said rate to the tax already assessed for general purposes, and the tax so caleulated and assessed shall be collected in currency, and paid into the treasury of the State at the same time and in the same manner as other general State taxes are required to be collected and paid, and the money so collected shall be credited on the books of the Auditor and Treasurer to a special fund, to be known and designated as the “ Floating debt bonds fund,” and the amount so credited, from year to year, is hereby annually appropriated for the payment of the interest and part of the principal of the bonds authorized by this act.”

Here the State has made an annual appropriation and required the Auditor to make the calculation and fix the rate of a tax necessary to pay the interest on bonds authorized by said act. As long as this duty was imposed by law upon the Auditor, he could, by mandamus, be compelled to perform it. But when, by acts 3, 4, and 55 of the acts of 1874, the law imposing this duty upon the Auditor was repealed, and it was made a penal offense for him to do any act obstructing the funding of the obligations of the State and the other provisions of said statutes, a mandamus will not lie against the Auditor to make an estimate and fix the rate of the tax provided for in act 69 of the acts of 1870. The General Assembly which prescribed the duty in 1870 not only revoked the requirement in the legislation of 1874, but made its performance an offense punishable by fine and imprisonment.

The relator, however, contends that the provision of section four of act 69 of acts of 1870 was one of the stipulations in the contract by which the State issued, and he acquired the bonds, and the repeal thereof is repugnant to that provision of the constitution of the United States prohibiting a State from passing a law impairing the obligations of contracts.

We think the General Assembly had the right to repeal the law imposing. the duty on the Auditor, which relator now seeks to compel him to perform ; and as he is not now required by law to perform the duty, a mandamus will not lie against him.

As to the question whether the State by her legislation has impaired the obligations of her contracts with relator, we are of opinion that that matter can not be decided in this controversy, because the State is not a party to this suit, and the Auditor has no interest in the solution of the question. And the same remark is applicable to the other constitutional objections raised by the relator.

The only question pertinent to the case is: Is the duty required by the relator of the Auditor one of the ministerial duties of his office now prescribed by law 9 If it is not, as we think, a writ of mandamus should not issue against him. The same authority which prescribed the duty could and did revoke it, and made the performance a penal offense.

Judgment affirmed.


text:
    No. 5794.
    State ex rel. Pierre Gourgotte v. Jean Porte et al.
    The relator had the right to take a suspensive appeal within ten days from certain orders of the judge a quo in relation to the sequestration of his property, and the release thereof on bond, and any attempt to execute the order "before that time expired was unauthorized, and when the appeal was taken, the parties were left in statu quo before the order, and the effect of the prohibition issued by this court is to maintain the parties in the position they were in before the rendition of the order appealed from.
    APPLICATION APPLICATION for a writ of prohibition addressed to defendant Jean Porte and to Eugene Waggaman, sheriff of the parish of
    Orleans. J. A. Bartlette, for relator. Murphy, for Jean Porte, and Bilis & Bilis, for the sheriff, respondents.
   Ludeling, C. J.

Under a writ of sequestration, certain property was sequestered and taken out of the possession of Pierre Gourgotte, who released the property by bonding the same. Jean Porte, plaintiff in the sequestration suit, then took a rule against the sheriff to show cause why he should not be held responsible for the property, and to test the solvency of the bond given by defendant, Gourgotte. No notice was given to Gourgotte, the defendant. The bond was declared, not good, and the plaintiff was permitted to bond the property. As soon as the defendant learned what had been done he tendered other sureties, although he says the first bond was good, and this was refused. He then obtained an order for a suspensive appeal from the aforesaid orders of the court, and gave bond according to law. But notwithstanding this suspensive appeal the parties persist in taking and withholding the property from him. He then obtained a writ of prohibition from this court. To this the sheriff answers that this court is without jurisdiction to issue said writ, because he is executing the orders of a court which had jurisdiction of the case.

When the suspensive appeal had been taken, the inferior court was without jurisdiction in the matter, and the appellate jurisdiction of this court attached; and it is in aid of our appellate jurisdiction that we grant the prohibition. This is too well settled to be questioned now. Nor is there any force in the position that he can not be prohibited from doing what he has already done, or from disturbing the possession of property of relator, when he has no such possession. The relator had the right to take a suspensive appeal within ten days from the said order, and any attempt to execute the order before that time expired was unauthorized, and when the appeal was taken the parties were left in statu quo before the order, and the effect of the prohibition is to maintain the parties in the positions they were before the rendition of the order appealed from.

It is therefore ordered that the prohibition be made peremptory and that defendants pay costs.


author: Morgan, J.

text:
    No. 4393.
    Nicholson & Co. v. Mrs. A. M. Jennings.
    The pleas oí want of citation and prescription are inconsistent. Pleading prescription is an appearance.
    APPEAL from the Sixth Judicial District .Court, parish of Tangipahoa. Mils, J.

      Bream & Former, O. P. AmaeJcer, for plaintiffs and appellees. B. B. Forman, for defendant and appellant.
   Morgan, J.

In this court the defendant pleads defective citation and prescription. The pleas are .inconsistent. Pleading prescription is an appearance.

The plea of prescription seems to be well founded, but as it was filed for the first time in this court, and the appellee requesting it, the case will be remanded for the purpose 'of allowing plaintiffs to prove an interruption.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and that the case be remanded to be proceeded in according to law, appellees to pay the costs.


text:
    No. 4369.
    B. St. Mesme LeBreton v. P. J. Kennedy.
    The act by which the plaintiff suffered was not done by any one for whom the defendant is responsible, under his direction, or in the usual course of his employment. He can not therefore recover.
    APPEAL from the Second Judicial District Court, parish of Jefferson. Pardee, J.

      J. J. Roman, Fellows & Mills, for plaintiff and appellant. B. King Cufiar and Semines, for defendant and appellee.
   Morgan, J.

The defendant owns a plantation which adjoins the property of the plaintiff.

While the defendant’s laborers were employed in plowing in his fields, one of them, leaving the cut,” as it is called, where the plowing was being done, crossed over into another one and lit his pipe. After lighting his pipe he thrust the burning match into a pile of brush which had been gathered together for the purpose of facilitating the clearing of the land. There was a fierce wind blowing at the time in the direction of the plaintiff’s property. The fire spread rapidly, and crossing over the defendant’s line, reached the plaintiff’s buildings and consumed them. Plaintiff sues to recover their value.

The act by which the plaintiff suffered was not done by any one for whom the defendant is responsible, under his direction, or in the usual course of his employment. He can not therefore recover.

Judgment affirmed.


author: Morgan, J. Wyly, J.

text:
    No. 3899.
    Canal and Claiborne Streets Railroad Company v. Succession of John Armstrong.
    This is a suit against the succession of John Armstrong, •who is alleged to have been security on a bond given by one J. G-. Campbell, as secretary and treasurer of the Canal and Claiborne Streets Railroad Company. As there is no sum fixed in the penal clause of the bond, the instrument contains no written promise on the part of Armstrong to pay any particular amount. Therefore his succession is not liable on the bond. As no amount is fixed in said bond, there is no evidence that the parties ever came to an agreement as to the extent of the obligation of Armstrong. The contract was incomplete. Assuming that the
    was Assuming that the signing and delivery of the instrument authorized or implied authority granted to the holder to fill in the amount — which this court does not admit — the death of Armstrong revoked the mandate and no sum has been filled in. It has
    It has frequently been held that omissions in filling judicial bonds are supplied by the law. But in the case at bar the bond is in no sense judicial. It is an ordinary conventional bond given by an officer of a corporation for the faithful performance of his ditties, and as the surety promised to pay no specific sum, there is no obligation for this court to enforce.
    APPEAL from the Second District Court, parish of Orleans. Duvigneemd, J.

      M. D. Ogden, for plaintiff and appellee. Finney <& Miller and H. N. Ogden, for defendant and appellant.
   Morgan, J.

By the fifteenth article of the company’s charter, the board of directors were authorized to appoint a secretary and other clerks, and to remove them at pleasure.

John Gr. Campbell was appointed secretary on the second of September, 1867. He gave bond, with Jolin Armstrong and W. C. Falham as securities. The bond is as follows :

“ Know all men by these presents, that we, J. Gr. Campbell, as principal, and John Armstrong and W. C. Falham, securities, are held and firmly bound insólido unto tlie Canal'and Claiborne Streets Railroad Company, or assigns,--, for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators in solido firmly by these presents, and do hereby waive the benefit of division and discussion granted by law to sureties.

“Now, the condition of the above obligation is such, that whereas the above bounden J. Gr. Campbell has been chosen and appointed secretary and treasurer of the aforesaid Canal and Claiborne Streets Railroad Company, by reason whereof divers sums of money, goods and chattels and other things, the property of said corporation will come into his hands; if the said J. G-. Campbell, his heirs, executors and administrators, at the expiration of his office, upon request to him or them made, shall make or give unto the said company, or their agent or attorney, a just and true account of all such sum or slims of money, goods, chattels and other things, as have come into his hands, charge or possession, as secretary and treasurer as aforesaid, and shall and do pay and deliver over to his successors in office or any other 28 person duly authorized to receive the same, all such balance or sums of money, goods and chattels or other things which shall appear to be in his hands and due by him to said company; and if the said J. G-. Campbell shall well and truly, honestly and faithfully in all things, serve the said company as secretary and treasurer as aforesaid, during his continuance in office, then the above obligation to be void; else, to remain in full force and virtue.”

On the eleventh of January, 1869, Campbell tendered his resignation to the company, which was received, but never accepted.

On the nineteenth of January, at a meeting of the board, Campbell was re-elected secretary, but at a reduced salary. Subsequent to his re-election there was a deficit in his accounts amounting to $9809 65.

This suit is instituted against the succession of Armstrong, to make it liable for the amount of Campbell’s deficit.

The defense is twofold: First, That no amount is stipulated in the bond. Second, That the defalcation occurred after Campbell’s second election.

First — The object in stating an amount in a bond is to definitively fix the liability of the obligors and their sureties; but a man may bind himself in an indefinite amount if he chooses to do so, and this we think is what Armstrong did in this case. He bound himself that Campbell, at the expiration of his office, should give to the company a true account of all money, goods, chattels and other things as may have come into his hands, charge or possession as secretary and treasurer. As secretary, $9809 65, belonging to the company, were not accounted for by him. His surety is responsible therefor.

Second — There was no time specified as to the duration of his term of office; neither was there a limit fixed to the time the bond was to last. Campbell’s re-election by the board did not then change his position, or affect the obligation' of his surety.

Judgment affirmed.

On Rehearing.

Wyly, J.

After further examination we have come to the conclusion that the succession of John Armstrong is not liable on the bond. As there is no sum fixed in the penal clause, the instrument contains his written promise to pay no particular amount.

Suretyship can not be presumed; it ought to be expressed, and is to.be restrained within the limits intended by the contract.” Revised Code 3039.

It is manifest from the instrument that Armstrong, the surety, did not intend to bind himself for an unlimited amount. He certainly did not undertake to go security for all the money, goods and property of the Canal and Claiborne Streets Railroad Company that might come into the hands of Campbell, its secretary and treasurer. The writing contains no such promise.

As no amount is fixed in the bond, there is no evidence that the parties ever came to ah agreement as to the extent of the obligation of Armstrong. The contract was incomplete. We can not now say that the succession of Armstrong owes the plaintiff $9809 65, the amount of Campbell’s defalcation; because when Armstrong signed the instrument there is no evidence that he and the plaintiff agreed that he, in. such a contingency, should pay that sum.

Without making a contract for the parties, this court can not determine that the defendant owes the plaintiff anything. Assuming that the signing and delivery of the instrument authorized or implied authority granted to the holder to fill in the amount, which we do not admit, the death of Armstrong revoked the mandate, and no sum has been filled in.

The promise to pay the debt or discharge the obligation of another can only be proved by written evidence. Acts of 1858, page 148.

The obligation of Campbell extended to the full value of the money and property confided to him as secretary and treasurer of the Canal and Claiborne Streets Railroad Company. He was bound to account for all of it; and if he made way with it, an action would lie against him for the full value thereof. Armstrong, as we have stated, did not assume an obligation so extensive, because the instrument contains no such promise. To what extent then did he agree to be bound for Campbell’s fidelity as an officer of the railroad company1? No amount is fixed in the bond, and there is no written evidence that the parties came to an agreement on this important point. The instrument stands thus: In a certain contingency, namely, on the defalcation of Campbell, Armstrong was to pay, but what amount the parties failed to agree on. The contract of suretyship was not completed.

The case of Pennyman v. Barramore, 6 N. S. 494, cited by plaintiff, is not applicable. That was a sequestration bond, where the amount was not properly filled in; it was a judicial bond, and the surety signed in reference to the law fixing the amount and the conditions thereof. It has frequently been held that omissions in filling judicial bonds are supplied by law, but in the case at bar the bond is in no sense judicial; it is an ordinary conventional bond, given by an officer of a corporation for the faithful performance of his duties; and as the surety promised to pay no specific sum, there is no obligation for the court to enforce.

It is therefore ordered that our former judgment be set aside,'and it is decreed that the judgment of the court a qua be annulled, and plaintiff’s demand he rejected with costs of both courts»


author: Taliaferro, J.

text:
    No. 5015.
    City of New Orleans v. The New Orleans Mechanics’ Society.
    The property of the defendants is not exempted from taxation hy their charter. There are no terms or expressions used in their aots of incorporation, declaring a contract "between the State and the corporators, aDd the existence of such a contract can not he inferred, nor has the property been used for the specific purposes expressed in the. acts of incorporation, and which was the condition of an exemption from taxation.
    APPEAL from the Superior District Court, parish of Orleans. Saw-B. kins, J.

      Pace & Foster, for plaintiffs and appellants. B. F. Jonas, city attorney, 8. P. Plane, assistant city attorney, for defendants and appellees.
   Taliaferro, J.

Several suits were from time to time successively brought by t'he city against the defendant to enforce the payment of •taxes. Judgments were obtained and executions issued on three of them. The defendant enjoined the proceedings, setting up that under its charter the society is exempted irom the payment of taxes. Judgment was rendered perpetuating the injunction so far as it restrained the city from executing the writ of fieri facias issued in the case numbered 1155, and annulling the judgment rendered in that case. In the other eases the injunction was dissolved. At the same time judgment was rendered in favor of the city in two other suits founded on the same cause of action, and cumulated by consent with the injunction cases.

From this judgment, so far as it is against the Mechanics’ Society, the defendant appeals.

The New Orleans Mechanics’ Society was incorporated in the year 1821. The third section of the act of incorporation provides: “That it shall not be lawful for this iucorporation to apply their revenues to any other than charitable purposes and the promotion and improvement of mechanical arts. This law shall be in force for and during the term of twenty years.” By an act approved March 21, 1850, the State transferred to the society the possession and occupancy forever of a certain portion of ground on the square bounded by Canal, Baronne, Common and Philippa streets. The society was required to build upon the ground granted to it a brick or stone building, suitable for a library, lecture room, and cabinet of natural history and mechanical inventions, and to establish and maintain a library for the use of the mechanics of New Orleans, and an annual course of lectures on the physical sciences, and particularly those connected with agriculture and the mechanical arts. The society caused to be erected on the lot of ground so granted the building called The Mechanics’ Institute.”

The society acquired in 1853 from the city of New Orleans the lot of ground, and buildings upon it, which had been donated to the city by Abijah Fisk, for the establishment of a free library, known for many years as “ The Risk Free Library.” This property, situated at the corner of Bourbon and Customhouse streets, was transferred to the Mechanics’ Society, under the same conditions, and to be held and used for the same uses and trusts under which it was held by the city. The society was bound by this transfer to place the Fisk Free Library in the building known as the Mechanics’ Institute, and was authorized to rent the building in which the library was first established, the income from rent to be applied to the enlargement and maintenance of tlm library, etc.

The city asserts the right to levy and collect taxes on these properties. If may be here noted that the suit numbered 1155 referred to in the judgment of the lower court, and in relation to which the injunction was perpetuated, was brought for the taxes imposed upon the lot of ground, and buildings upon it, donated originally by Abijah Fisk for the Fisk Free Library ; and that the other suits in which judgments were rendered in favor of the city were for taxes on the property known as the Mechanics’ Institute.

The defendant contends that the property held by .the corporation is exempt from taxation by contract between the city and the. corporation ; such exemption being implied, if not expressed, by the act of incorporation ; that no other construction can be given to the charter and subsequent acts of the Legislature thau that it was the understanding and intent of the law maker and the party accepting the terms and conditions of the laws, that the properties of the society should forever be free from all taxation; that this construction has been given to it by both State and city for near half a century; that the rights acquired by the society, and which it has so long enjoyed, are of a vested character and can not be affected by subsequent changes in constitutions or laws.

On the part of the city it is held that exemptions are never implied, and all laws granting exemptions from taxation are to be most strictly construed. It is conceded that as a charitable society the property of the Mechanics’ Society, actually used by itself for purposes of charity, would be exempt under the general laws of the State and the charters of the city, but that such an exemption is not in the nature of contract, and it can be recalled at any time; that the words of the law show it to he hut a conditional exemption, and in order to claim it the society must use its buildings, the Mechanics’ Institute-, for its purposes of charity; the moment they fail to occupy it to that end it ceases to be exempt; that by law the right subsists so long as actually used for charitable purposes. The plaintiff denies that the. building of the defendant, called the Mechanics’ Institute, has been used as required by law for charitable purposes. The evidence sustains this position taken by tbe plaintiff. It is shown that during the years for which the city is claiming taxes against the property of this corporation, the building called the Mechanics’ Institute was leased out and not used for the purposes intended by the act of March 21, 1850. It is not shown to have been at any time appropriated to the objects of the said act. The Fisk Free Library, a witness states, is kept open regularly every day in the Mechanics’ Institute, and that the revenues arising from that property are all applied to educational and charitable purposes; and that the rents derived from the other property at the corner of Bourbon and Customhouse streets, are all appropriated to the expenses of Fisk Free Library, and to no other purpose.

We think the property of the defendant, not being used for the specific purpose expressed in the acts of incorporation, is not exempted from taxation. We find no terms or expressions used in these acts declaring a contract between the State and the corporations, and we can not infer the existence of such a contract. The property of defendants is not exempted by their charter. We think there was error' in the court below in rendering judgment in favor of defendants, annulling the judgment in suit No. 1155, and maintaining the injunction as to the execution of that judgment; and in other respects that the decree is correct.

It is therefore ordered that the judgment of the district court, so far as it maintains the injunction restraining the execution of the plaintiffs’ judgment against the defendant in suit No. L155 and annuls that judgment, be avoided, annulled and set aside. It is further ordered that the injunction be dissolved as to the said judgment in suit No. 1155; and it is finally ordered that the decree of the lower court as thus altered and amended be affirmed, with costs in both courts.


author: Howell, J.

text:
    No. 4412.
    J. Denny v. H. Simons.
    There was a total failure on the part of defendant to deliver at Havana, island, of Cuba, certain. articles contracted for. The interference of the military power of the government at the time has relieved him from the stipulated penalty in case of failure, but he must return the portion of the price received by him for the articles not delivered.
    APPEAL from the Fifth District Court, parish of Orleans. Lemmont, J\. J.

      Fellows & Mills, for plaintiff and appellant. F. O. Laibatt, for defendant and appellee.
   Howell, J.

Plaintiff sues for $30,000 paid by him on a written contract for the delivery to him, in Havana, of two hundred ox wagons, two hundred and fifty yokes and bows, thirteen hundred rings and staples, and twenty-five hundred iron keys, and the further sum of $10,000, as the stipulated penalty for the failure of the defendant to perform his part of the contract. The answer is a general denial. There was judgment of nonsuit, and the plaintiff appealed.

The defendant bound himself on the thirtieth January, 1865, to ship the above articles on or before the twenty-fifth of February following, and received three payments on the price amounting to $30,000, according to the stipulations of the contract. On the twenty-fifth of February, only fifteen of the wagons had been shipped, but with directions to the consignees to hold them subject to the order of the shipper. Fifty more of the wagons were subsequently put on board of a vessel, and the military authorities seized and detained them for some time. The cause of this seizure is not shown by competent evidence; that offered being hearsay was properly objected to by plaintiff; but he states in his testimony the fact of the seizure, and there is evidence that these wagons were subsequently in the yard of the defendant. The plaintiff was in Havana for the purpose of receiving the wagons, and several times applied to the agents or consignees for them without effect. There was a total failure on the part of the defendant to deliver these articles j but we think the interference of the military power of the government at the time relieved him from the stipulated penalty, but he must return the portion of the price received by him.

It is therefore ordered that the judgment appealed from be reversed, and that plaintiff recover of defendant the sum of thirty thousand dollars, with five per cent, interest from twenty-fifth February, 1865, and costs.


author:
Ludeling, C. J.
      Wyly, J.,

text:
    No. 5323.
    The State ex rel. J. C. Seale v. Isaac H. Crawford.
    The judgment of the court in this case is based entirely on the one already rendered in the case of Claiborne v. Parlange, the facts being substantially the same. 26 An. 548. *
    APPEAL from the Thirteenth Judicial District Court, parish of Madison. Hough, J. H.

      JR. Steele, District Attorney, for relator and appellee. Isaae H. Crawford, appellant, in propria persona.

   Ludeling, C. J.

The facts in this case are substantially the same as the facts in the case of the State ex rel. L. B. Claiborne v. Charles Parlange, decided by this court in May, 1874.

For the reasons stated in that case there must be judgment in favor of the plaintiff.

It is therefore ordered that the judgment of the lower court be avoided and annulled, and that there be judgment in favor of J. C. Seale, recognizing him as the district attorney pro tempore of the parish of Madison, and for costs of both courts against the defendant.

Wyly, J.,

concurring. In the decree in this proceeding, under the intrusion act for the office of district attorney pro tem., the court finding that section one of act No. 44 of the acts of 1874 abolished the office, and finding that sections two, three and four of said act, reviving the said office and authorizing the Governor to fill vacancies therein by appointments, are void, because repugnant to article 114 of the constitution, rejected the demand of the plaintiff, and decided that neither the relator nor the defendant was entitled to the office in dispute, because by the statute referred to the office was abolished.

The title of the act is: “An act to repeal sections 1178, 1179, 2760> 2761 of Ray’s Revised Statutes and for other purposes.” These sections of the Revised Statutes, referred to in the title, are the ones creating the office of district attorney pro tem.

Section one repeals those sections, thereby abolishing the office.

Sections two, three and four of said act revive or reinstate the office of district attorney pro tem., and authorize the Governor to fill vacancies therein by appointments.

Vacancies were, by the previous law, filled by the police jury or by the parish judge.

The result, therefore, intended to be accomplished by the enactment of the statute under review was simply to change the manner of filling vacancies in the office of district attorney pro tem.

The General Assembly never intended to abolish the office, as the provision of section one, disconnected from the succeeding sections, would seem to imply.

It is the intention of the lawgiver which the court must seek out, and, if possible, give effect to in interpreting a statute; and the whole act must be construed together in order to determine the intention of its authors.

It results, therefore, from the foregoing observations, that the enactment in question is merely a statute to change the manner of filling vacancies in the office of district attorney pro tem.. This obviously was the intention, meaning and purpose of the law.

Now, the question is : Is this object covered by the title, as required by article 114 of the constitution? Manifestly it is not. It is urged, however, that the title covers the first section, abolishing the office, and that this part of the statute is valid. This would be to make a law which the General Assembly never intended to enact, because, as before stated, considering all the sections together, it is evident the-purpose was to continue the office; but the manner of filling vacancies therein was intended to be changed. This was the evil to be remedied.

In Cooley’s Constitutional Limitations, second edition, page 147, section 5, the author, in discussing the question: What is the effect where the act is broader than the title, says: “But if the act is oroader than the title, it may happen that one part of it can stand, because indicated by the title, while as to the object not indicated by the title it must fail. Some of the State constitutions have declared that this shall be the rule; but the declaration was unnecessary, as the general rule, that so much of an act as is not in conflict with the constitution must be sustained, would have required the same declaration from the courts. If, by striking from the act all that relates to the object not indicated by the title, that which is left is complete in itself, sensible, capable of being executed, and wholly independent of that which is rejected, it must be sustained as constitutional.” On page- 178 the same learned author says: “ Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in the subject matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it can not be presumed the Legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall. The point is not whether they are contained in the same section, for the distribution into sections is purely artificial; but whether they are essentially and inseparably connected in substance. If, when the unconstitutional part is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained. The difficulty is in determining whether the good and the bad parts of the statute are capable of being separated within the meaning of this rule. If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect complete and valid as to the other. But if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail, unless sufficient remains to effect the object without the aid of the invalid portion. And if they are so mutually connected with and dependent on each other, as conditions, considerations or compensations for each other, as to warrant the belief that the Legislature intended them as a whole; and if all could not be carried into effect, the Legislature would not pass the residue independently; then if some parts are unconstitutional, all of the provisions which are thus dependent, conditional or connected, must fall with them.”

Taking the statute altogether, it is impossible to suppose the legislative intention was to abolish the office in question, because this would render meaningless sections two, three and four of said act reviving. the office, providing the manner of filling vacancies and designating the salary appertaining thereto. By striking ont these sections because not covered by the title, and allowing the first section to stand alone, the court will, in effect, make a law defeating the obvious purpose of the General Assembly; it will abolish an office that was not intended to be abolished. This can not be done. None of the sections of the statute can stand, because when disconnected, they do not indicate the legislative will, and as connected, they are not covered by the title.

My conclusion is the statute is unconstitutional, and the title set up by the defendant thereunder is void.

I therefore concur in the decree of this court in this case.


author:
Morgan, J.
      Wyly J.,

text:
    No. 3539.
    Dominick Koelmel v. New Orleans, Mobile and Chattanooga Railroad Company.
    The plaintiff claims damages from the defendants on the ground that they have located their railroad so near his dwelling as virtually to destroy its usefulness to him ior the purpose for which it was built.
    It is a valid defense that defendants were authorized by the Legislature and the City Council to plaoe their track where they did.
    APPEAL from the Seventh District Court, parish of Orleans. Oollens, J. Jury trial.

      Lyman Hardin, for plaintiff and appellee. John A. Campbell, for defendants and appellants.
   Morgan, J.

The defendants, in curving their track, cut off a portion of the banquette in front of plaintiff’s property. He avers that the building of the railroad in such close proximity to the front of his house and door and the frequent passage of the train thereon have rendered his dwelling extremely uncomfortable and unsafe and dangerous to his wife and children, and that his house is liable to be set on fire on the passage of every train. For this he seeks damages, and a jury awarded him eight hundred dollars.

The answer to his demand is that the defendants were authorized by the Legislature and the City Council to place their track where they did.

This makes it unnecessary to consider the bills of exceptions found in the record.

It is therefore ordered that the judgment of the district court be avoided, annulled and reversed, and that there be judgment in favor of the defendants, with costs in both courts.

Wyly J.,

dissenting. Under act No. 28 of the acts of 1868, the defendants obtained the grant of the right of way along Elysian Fields street and certain other streets of New Orleans, provided said company shall not unnecessarily impair the usefulness and convenience to the public of such streets as its railroad may pass upon.

The grant of the right of way in general terms along the street of a city does not, in my opinion, authorize a railroad company to construct its road on the banquette, devoted to the exclusive use of foot passengers and to the special service due the adjoining property. I do not find from the evidence that the location made by defendants of the road was authorized by law. In my opinion, they had no authority from the State to build their road on the sidewalk on Elysian Fields street, and so near the dwelling house of plaintiff as virtually to destroy its usefulness to him for the purpose for which it was built. In principle there is no difference between destroying the house and destroying its usefulness to the owner.

The plaintiff recovered judgment on the verdict of a jury for eight hundred dollars, which was nearly the value of the property, and I think that judgment should not be disturbed. I therefore dissent.


text:
    No. 5742.
    Temple S. Coons v. Joseph F. Kendall.
    It was improper for a tutor to use a mortgage note issued for a specific purpose on the minor’s behalf, as collateral security of an individual debt of his own, unconnected with said minor’s interest. The plaintiff was aware of these circumstances and therefore can not recover.
    APPEAL from the Fifth District Court, parish of Orleans. Oullom, J.

      J. Oaldwell Peirce, for plaintiff and appellant. B. Shaclcleford, for defendant and appellee.
   Howell, J.

Plaintiff sues on a note for $2500, made and indorsed by P. F. Kendall, tutor of the defendant, and asks to enforce a mortgage with which it is identified, on the allegation that the said note and mortgage were executed in conformity with an order of the probate court homologating the proceedings of a family meeting which advised and authorized the same. The defense is, that the said note and mortgage were executed, to the knowledge of plaintiff, for the specific purpose of putting improvements on property belonging to said minor, but was given to plaintiff as collateral security for an individual debt of the tutor, for the sum of $700, evidenced by a note of said tutor, and that the minor can not be held responsible therefor. There is a prayer for a judgment in favor of defendant and the surrender of the note.

The evidence sustains this defense, and hence the judgment in favor of the defendant is correct. It was an improper use of the note by the tutor, and from the allegations of plaintiff’s petition, he was aware of the purpose of the note and mortgage, while it is shown that the note for $700, upon which this note was a collateral, was unconnected with the minor’s interest, and an individual transaction of the tutor, who had no authority for so using the said mortgage note.

Judgment affirmed.


author: MORGAN, J. Morgan, J.

text:
      No. 4101.

    Samuel Choppin v. James Wilson et al.
    Where the certificate of the clerk is in the usual and. proper form, if the appellant has not seen to having a proper record placed before this court and the evidence has not come up upon which he expects to get a judgment, he must take the consequence. If the evidence is necessary to plaintiff, he should have suggested a diminution of the record and called for a certiorari.

    The plaintiff in execution against a defendant who is a member of a partnership, has the undoubted right to seize and to sell under his writ the interest of the owing partner in the partnership property. But his rights stop there. His execution neither dissolves the partnership, nor authorizes the appointment of a receiver with power to liquidate the partnership affairs.
    APPEAL from the Sixth District Court, parish of Orleans. Cooley, J.

      B. M. Forman, for ■ plaintiff and appellee. Bentinek Bgcm, for defendants and appellants.
   On Motion to Dismiss.

MORGAN, J.

Plaintiff moves to dismiss this appeal because the testimony of two material witnesses heard on the trial, and a certain document offered, in evidence is not in the record.

The certificate of the clerk is in the usual and proper form.

If the appellant has not seen to having a proper record placed before ns and the evidence has not come up upon which he expects to get a judgment, lie must take the consequences. If the evidence is necessary to the plaintiff, he should have suggested a diminution of the' record and asked for a certiorari.

The motion to dismiss is denied.

On the Merits.

Morgan, J.

Plaintiff obtained judgment against the defendant for $175. Upon this judgment he issued execution and caused the sheriff to seize the assets of the firin of J. S. Simonds & Co., of which firm the defendant was a partner. Alleging, in a supplemental petition, that by ■ this seizure the firm of Simonds & Co. was dissolved, and that a liquidation and settlement thereof was necessary in order to ascertain the share coming to the defendant, he prayed that the firm be ordered to show cause why a receiver should not be appointed to liquidate the affairs of the firm, to the end that out of what remained from the liquidation, his demand might be paid.

Before the rule was disposed of, J. S. Simonds died. His administratrix was made a party thereto. The rule was made absolute. The administratrix appealed.

We do not understand that the seizure under execution'of the interest of a defendant in partnership property, operates a dissolution of the partnership, and we understand that a receiver will only be appointed to a partnership after its dissolution, or at the instance of a partner where the acts of his copartner are of such a character as would justify him in asking for a dissolution of the partnership.

The plaintiff in execution against a defendant who is a member of a partnership has the undoubted right to seize and to sell under his writ the interest of the owing partner in the partnership property. But his rights stop there. His execution neither dissolves the partnership, nor does it authorize the appointment of a receiver with power to liquidate the partnership affairs.

The only question before us is whether, in the case stated, .the court is authorized to appoint a receiver. We think not.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and that the rule for the appointment of a receiver be dismissed, plaintiffs to pay costs..

Rehearing refused.


author: Wyly, J.

text:
    No. 4512.
    Felix Formento v. Francis Joseph Robert.
    until the error in the judgment condemning Joseph N. Robert instead of Erangois J. Robert ■was corrected, execution could not issue against the said Prangois J. Robert, because be was not condemned in tbe decree, and as tbe case was pending lor revision in this court, tbe judge a> quo was without jurisdiction and could not change the decree.
    APPEAL from the Fifth District Court, parish of Orleans. Gullorn, J.

      A. & W. Toorhies, for plaintiff and appellant. G. Schmidt, Dalton <& Wallcer, for defendant and appellee.
   Wyly, J.

Plaintiff took a rule on the defendant to show cause why execution should not issue against him notwithstanding the. appeal taken by him, on the grounds that the bond was not sufficient for a suspensive appeal, and the surety was not good atid sufficient. The rule was made absolute and execution issued.

The defendant then moved to set aside this order, because there was no judgment against him, the decree condemning Joseph N. Robert.

This motion was sustained, and the order for the execution of the judgment was annulled and the writ quashed.

Thereupon plaintiff took this appeal.

We think the court did not err. Until the error in the judgment condemning Joseph N. Robert instead of Prangois J. Robert was corrected, execution could not issue against the said Prangois J. Robert, because he was not condemned in the decree; and as the case was pending for revision in this court, the judge a quo was without jurisdiction and could not change the decree.

Judgment affirmed.