text:
    No. 12,411.
    C. H. Parker, State Tax Collector, First District, Parish of Orleans, vs. Strauss & Co.
    1. The suit for State taxes met by the defence that defendant has no property liable to taxation under the law, substantially puts at issue the legality of the tax, a question within our jurisdiction irrespective of the amount involved. Constitution, Art. 81.
    2. Our revenue statute taxes the personal property within the State owned by the non-resident. Act No. 106 of 1890, See. 1.
    3. Nor is such property consisting of cash exempted from taxation merely and only because deposited in bank by which it is claimed; the property is to be deemed a debt due by the bank to the non-resident, and hence not taxable here.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      F. G. Zacharie for Plaintiff, Appellant.

      H. Heidenhain and ■ DinJcelspiel & Hart for Defendants, Appellees.
    Argued and submitted April 15, 1897.
    Opinion handed down May 10, 1897.
    Rehearing refused June 28, 1897.
   The opinion of the court on motion to dismiss was delivered by

Miller, J.

The defendants move to dismiss this appeal on the ground that the amount is insufficient to give this court jurisdiction, and the record does not show that the constitutionality or legality of the tax claim is involved.

The record shows that the tax collector, proceeding by rule to compel the delivery of personal property assessed for taxes, is met by the defence that defendants in rule have no property within the jurisdiction of the court liable to taxation. We think this answer substantially puts at issue the legality of the tax and this appreciation of the- defence is confirmed by the argument of defendants against the right of the State to tax the personal property of defendants, because the property is on deposit in the bank.

We see no ground to dismiss the appeal.

ON THE MERITS.

The defendants appeal from the judgment condemning them to pay the taxes of the State upon an assessment against them of money at interest and costs. The answer denies that defendants have any property subject to taxation.

The testimony shows that defendants, a foreign firm, conduct a large business in this city as cotton buyers; they have an office, employ clerks, and the expenses of their establishment require the disbursement here of an amount commensurate with the needs of this business. The cotton defendants buy is shipped to the firm, bills of exchange drawn on them negotiated, and thus the funds provided to pay for the cotton purchased. Defendants have a bank account, they deposit the proceeds of the exchange they draw, and check on it for the purposes incident to the business conducted here, as well as for remittances to the firm at their foreign domicile.

The argument for the defendant is that as the means of the firm are derived from the negotiation of the bills of exchange they draw, and are deposited in bank, that these deposits represent all the property of the defendants here, and as deposits are debts due the foreign firm they are not taxable in this State. On this proposition we have the citation of the familiar authorities that debts are taxable only at the domicile of the creditor. Oooley on Taxation, Chapter 1, p. 23; State Tax on Foreign Held Bonds, 15 Wall. 300. While debts of the foreign creditor can not be taxed here, the personal property he possesses in this jurisdiction may be taxed.’ It is well understood that the taxing power is not subject to any limitation based on the principle that the domicile of the owner is that of his movable property. Cooley on Taxation, pp. 15, 16, 274. Our revenue act proposes to tax all personal property within the State; there is no exception because the owner is a non-resident. Act No. 106 of 1890, Sec. 1. The liability of defendants in this case is not asserted on an assessment of debts due them, but they are assessed on personal property, and the question is whether they had such’ property. The current of the testimony shows, and the implication without testimony would be, that the defendants must have within this jurisdiction an amount of money or property requisite to conduct a business of the magnitude of annual purchases of fifty thousand bales of cotton. There is no proposition in this case to tax the bill of exchange drawn to pay for cotton purchased nor the proceeds of the bill. The nature of the defendant’s business does not at all preclude an assessment on the cash or property held here for business purposes, irrespective of that used for cotton purchases. The assessment supposes that basis and we deem it sufficient to maintain an assessment whether the amount is kept on the premises pf the firm or deposited in bank. The defendants cite the case of Clason & Company vs. the City of New Orleans, 46 An. 1, to sustain their contention; the decision in the Liverpool and London and Globe Insurance Company vs. Board of Assessors, 44 An. 760, is of more direct application. The decision gave full recognition to the exemption from taxation here of debts due the foreign corporations, but maintained the assessment on the cash of the company necessary here for its business purposes. The principle of that decision and of Bluefields Banana Company vs. Board of Assessors, 49 An. 43, applies to this case. The revenue act, in entire accordance with the conceded extent of the taxing power, taxes the movable property of the foreigner. We can not hold that, cash thus liable to taxation is exempted, because for convenience it is deposited in bank and checked on by the owner. It would be a strain to apply to the deposited cash the exemption from taxation accorded to debts in their ordinary significance, due to the foreign creditor.

If there was property of the defendants liable to taxation the assessment was open to correction as to amount within the delay and in the mode pointed out by law. In the absence of any objection from the taxpayer, the assessment becomes final and not subject to review by the courts.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be reversed, and it is now ordered, adjudged and decreed that the rule of plaintiff be made absolute, and that there be judgment against defendants accordingly at defendants’ costs.

Nicholls, C. J., absent; ill.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 12,403.
    Succession of Gen. G. T. Beauregard.
    1. The Code prohibits tile substitution and jidei commissum, and our decisions mark the difference. C. C., Arts. 15Í9, 1520; 0 An. 432; 5 An. 480.
    2. The testamentary disposition of jiroperty toa minor child to be held by the executors until her majority and their delivery to her is the Jidei commissum prohibited by the Code. C. C., Arts. 1619, 1620; 13 La. 6; 12 An. 778; 16 La. 169; 36 An. 755;'46 An. 962; 48 An. 145.
    3. The seizin of the executor ceases under the Code on the demand of the legal heir, subject to the condition only, that he advance the sum to pay movable legacies, and there is no testamentary power to prolong the seizin or terms of the execution by the disposition he shall hold and administer property for the minor legatee until her majority, then to be delivered to her by the executor. C. 0„ Art. 1671; 15 La. 169; 3 An. 707.
    4. Such a charge imposed on an executor in effect is the trust of the common law prohibited by the Code, void, not only because a fidei commissum, but also because it would introduce a tenure of property unknown to our Code, and the testamentary power can not be used to create new titles or tenures, not recognized by our law. 7 An. 412; 8 An. 251; 12 An. 767; McCan Case, 48 An. 157.
    5. The fidei commissum attached to the testamentary disposition in favor of the legal heir embracing his legitime and disposable portion does not require him to accept or reject the disposition in its entirety, under Art. 986 of the Code. The fidei commissum is treated as not written, and the disposition to the legatee remains in full effect. Code, Arts. 1619, 1520; 3 An. 432; 5 An. 460.
    6. The fee of counsel for defending the will of the deceased should be borne by all tlie heirs.
    APPEAL from the Oivii District Court for the Parish of Orleans. Théard, J.

      Oharles J. Théard for Natural Tutor of Minor, Laura B. Larendon, Plaintiff, Appellee.

      Robert Q. Rugué for Defendants, René T. Beauregard and Henry E. Beauregard, Testamentary Executors, Appellants.
    Argued and submitted March 16, 1897.
    Opinion handed down April 26, 1897.
    Judgment modified and rehearing refused June 30, 1897.
   The opinion of the court was delivered by

Miller, J.

This controversy arises on the will of the deceased, directing that the one-third of his property, given to his granddaughter, shall be administered during her minority by his two sons constituted his executors, the proceeds to be invested by them and the property and accrued revenues to be delivered to her when she attains her majority, the administration and control of the executors to be “ to the exclusion of all others.” This portion of the will is attacked by the father and tutor of the granddaughter on the grounds, substantially, that the testator could not appoint the executor to fulfil the functions of the tutor, and that the disposition assailed is within the scope of the articles of the Gode forbidding substitutions and fidei commissa. The answer maintained the validity of the disposition, and from the Judgment annulling the dispositions this appeal is taken.

This will displace the tutor of the minor in respect to the administration of the property given her by the will. In seeking to accomplish that object the will substitutes the control and administration of the executors. Under our law the minor in person and property is placed under the authority of the tutor, who administers the minor’s property and represents him “ in all civil acts.” Civil Code, Arts. 327 et seq. In all the cases in our reports involving the attempt of the testator to supersede the tutor’s administration there has been experienced the difficulty of avoiding the sweeping prohibition in our Oode of all trusts attempted to be created by the testator. In this case as in others the will seeks to combine with the executors’ functions those of the tutor. The question whether the testator can direct this blending of duties and the administration of minor’s property in a mode not known to our law has been the subject of previous decisions of this court. In the Succession of Foucher, 30 An. 1020, the decision was against the power of the testator to supersede the tutorship of the law for that devised by him. But the validity of this will is not restricted to this feature of the exclusion of the tutor. The broader ground is, whether the will has not undertaken to provide as a substitute for the tutorship of the minor the prohibited fidei eommissum sought to be supplied in previous cases. Gonzales vs. Gonzales, 13 La. 106; Partee vs. Succession of Hill, 12 An. 767; Succession of Foucher, 30 An. 1020; Succession of Will Steven, 36 An. 764; Succession of McCan, 48 An. 145.

Our law prohibits substitutions and fidei eommissa. The giving of property to one who, after the period of his enjoyment, is to be succeeded by another to whom the legatee first in order is to deliver, is the substitution. The naked trust, that is, of property simply to be held for and delivered to another, is the fidei eommissum. Our law prohibits both. Civil Code, Arts. 1519, 1520. The substitution annuls the entire disposition. The fidei eommissum leaving untouched other parts of the disposition, is reputed not written. Ducloslange vs. Ross, 3 An. 432; Beaulieu vs. Ternoir, 5 An. 480; Succession of Franklin, 7 An. 412; Partee vs. Succession of Hill, 12 An. 767. The question in this case is whether the disposition that one-third of the estate of the deceased is to be held by those he names as executors until the majority of the minor legatee, and then delivered to her, is not a fidei eommissum.

The defendant’s argument insists that our Code abolishes only a class of fidei eommissa and excepts lawful trusts. It is claimed that the disposition in this will for the benefit of minors is for a proper purpose, and hence not within the prohibition of trusts. The dissent of Judge Preston in the Eranklin case is relied upon on this branch of defendant’s argument. This phase received careful consideration in the leading cases decided more than forty years ago. In the Eranklin case the trust was in favor of an institution of learning to bear the testator’s name. It was a case peculiarly fit for an exception if our law permitted trusts in testamentary dispositions. The decision was against the bequest. The result of all the discussion, then, was the delineation of our jurisprudence, if not distinctly marked before, that our Code abolished not only the substitution, but all forms of fidei eommissa. The simplicity of our system of titles it was declared must be maintained; that property at the testator’s death must vest in an owner, with the right of the testator to give the usufruct to one, the property to another, and that any disposition by which the heir or legatee was excluded from possession by the instrumentality of trustees or of others to hold for the legatee, equally with the disposition he was to hold and enjoy for life, or other period designated by the testator and then deliver to another, were prohibited. The substitution carrying an interest in the legatee, but to cease when he handed over; the trust to hold and deliver unaccompanied with any interest in the legatee first named; i. e., the naked trust, were both placed under the reprobation of the law. It would be useless to repeat the reasoning of these decisions. Ducloslange vs. Ross, 3 An. 432; Beaulieu vs. Ternoir, 5 An. 480; Succession of Franklin, 7 An. 412; Partee vs. Hill, 12 An. 767, and others of like type.

It is insisted by the defendants that it is competent for a testator to direct the payment of a legacy at a certain period after his death, and that such a legacy would continue the seizin Of the executor until the period for payment. Hence, it is argued that the disposition in the will directing the property to be held until the majority of the minor is a lawful charge put on the executors. A bequest by a testator of a sum of money, payable at a stipulated period after the testator’s death would transgress no public policy or provision of law. In the case cited by defendant’s counsel from 13 An. (Pena vs. New Orleans, 13 An. 86) such a bequest was maintained. When the paper in that case was presented for payment, the executors were in office. If their administration had ended the bequest would have been a charge on the heir. The paper tied up no property. It did not undertake to place the property in the hands of executors or others to be held and delivered to the legatee at the period designated. It did not undertake to disturb the possession of the heir bydesignat-ing trustees to hold the property. Legacies of this character create no fidei commissum. They are simply charges on the heir or the executor. Here is the attempt not to charge the heir with payment of a sum of money, but to exclude the heir from possession, the property, in the meantime, to be held by others under the mandate or trusts to deliver to the legatee when she attains majority.

It is claimed that the disposition is not a fidei commissum because the custodians of the property are the executors, whose term of office is now by law prolonged until the succession is wound up. Bevised Statutes, Sec. 3698. If this disposition has all the elements of the fidei commissum it is not easy to appreciate that it íb less so because the trust is given to executors. Our law defines their duties. But they are not clothed with the functions of a tutor this will seeks to impose on them, nor are they trustees for the benefit of those designated by the testator. In this case the record shows the succession debts have been paid, the heirs recognized and the partition of the property completed. All of the functions of the executors in legal significance are ended. All that remains, if the Code governs, is to hand the property to the heirs on their demand in this case made for the grandchild by her tutor. There are neither debts nor legacies to be paid. C. C., Art. 1671. If, then, those named as executors are to continue to hold this property it is not in virtue of their functions as executors under the Oode, but under the will, charging them to make investments and administer for the legatee and deliver to her when she attains majority. The law prolonging the administration of executors and administrators until the estate is wound up has obvious application when sales are yet to be made, debts paid and the incidental functions of administration are yet to be performed. This is no such case. The Oode and the decisions are that the seizin of the executor ceases with the payment of legacies, and even before on the demand of the heir, subject only to the condition that the heir shall advance enough to pay the movable legacies, and there is no testamentary power to extend the seizin. Civil Code, Art. 1671; Percy vs. Provan’s Executor, 16 La. 69; Succession of Fisk, 3 An. 705. Manifestly no reasonable interpretation of the statute prolonging the administration of the executors for purposes of administration can affect the limitation of their seizin imposed by the Oode. If prolonged, that limitation would apply, and if not prolonged by the statute it equally applies. The proposition then that the executors as such can hold the property because of the law prolonging their functions is answered, we think, by the limitation to which even the prolonged term is subject, i. e., the demand of the heir, and the absence of any movable legacies. The statute gives no aid to the pretension the defendant holds as executors. In the Succession of Macias, 31 An. 127, for the first time, it was advanced that the act extending the executor’s term prolonged it so as to enable him to hold and administer property bequeathed to the minor. In the case of Succession of Steven, a few years later, no such aid was found in the statute and the disposition confiding to the executors property to be held and administered by them for majors and minors was held to be so clearly a forbidden fidei eommissum. as to preclude discussion. 36 An. 755. Two years later came the decision in the case of Succession of Strauss, 38 An. 55, notwithstanding the Steven decision repeating the Macias decision. But neither in the Strauss or the Macias decision is there any allusion to the articles of the Oode or our jurisprudence restricting the duration of the executor’s seizin, and putting it beyond the power of the testator to extend it. It seems to us. clear that no allowable construction of the act of 1837, now Sec. 3698 of the Revised Statutes, can, in the least, affect that part of the Oode which limits the executor’s seizin. Their functions are brought to an end with all the benefit that can be invoked by the prolonging act. If they are entitled to hold, it is solely because of the power the testator conceived he could confer.

There is in this will the designation of those who are to hold and administer the property; there is the legatee named for whom it is to be held and to whom it is to be delivered at the period the testator designated. What element is absent of the fidei eommissum prohibited by our Oode? “Every disposition is null by which the donee, heir or legatee is charged to preserve for or return a thing to a third person,” follows the prohibition of the substitution and fidei eommissum. If it is the policy of our law, as frequently maintained by our courts, that the titles of ownership and imperfect ownership prescribed by our Oode shall be maintained and no departure permitted to testators, then in this disposition we have a tenure attempted to be created in those that are to hold for the minors, entirely distinct and different from any known to our Oode, and in all like respects, like the trust of the common law. Ducloslange vs. Ross, 3 An. 432; Heirs of Henderson vs. Rost, 5 An. 461; Beaulieu vs. Ternoir, 5 An. 480; Succession of Franklin, 7 An. 412; Partee vs. Hill, 12 An. 767. If it be incompatible with the spirit of our law that the heir, for the period the testator names, should be excluded from possession, the power of alienation kept in abeyance for the same time and the property tied up, all these obnoxious features are exhibited in this disposition creating an administration devised by the testator to last until the majority of the minor, who in the meantime is to be vested with no other interest than that of the beneficiary under the trusts of the common law. Our reports are full of the instruction that dispositions of this character are, in no manner) relieved of the prohibition of fidei commissa. The Macias decision, 31 An. 127, followed by the Strauss decision, 38 An. 55, were in contrast with our entire jurisprudence. In the case of Calvert vs. Boullemet, 46 An. 1135, the question here was not raised, hence not considered. The case of Succession of Cochrane, 29 An. 233, shows no controversy in respect to the prohibition, applied with distinctness in every case, the Macias and Strauss decisions excepted, in which a determination was invited and made. The comment in defendant’s brief ob the decision in the case of Clague vs. Clague, 13 La. 1, which elicited the emphatic declaration from Judge Martin against trusts to be fulfilled for minors under the guise of a disposition like this, is that the decree does not give effect to the opinion. The decree preserves the direction of the testator that the money bequeathed to the minor should be invested, but instead of maintaining the trust to be put on the executor we find in the decree the right of the tutrix recognized in that control the law withholds from executors, and gives only to those the law vests with the administration of minors’ property. The recent decision in the case of the Succession of McCan, 48 An. 145, is separated by a great space of time from the Clague case. 13 La. 1. In the intermediate period there were the great cases of Succession of Franklin, 7 An. 412; State of Louisiana, etc., vs. Executors of McDonogh, 8 An. 171; Heirs of Henderson vs. Rost, 5 An. 460, and others, exhibiting elaborate discussion of the general question here. With not greater illustrative power, but presenting features admitting of closer application of the prohibition of fidei commissa to testamentary dispositions of this character, there are the cases of the Succession of Steven, 36 An. 755; Partee vs. Succession of Hill, 12 An. 767; Succession of Stephens, 45 An. 962; Percy vs. Provan, 15 La. 69. All these cases affirm with more or less, but not greater expressive force, the exposition of our law given by Judge Martin in the Clague ease, 13 La. 1, that the disposition by which the testator directs the property bequeathed to minors should be held for them by the executor until their majority is indeed & fidei commissum prohibited by law.” Gonzales vs. Gonzales, 13 La. 106. We must apply the prohibition here as we did in the McCan case, 48 An. 145, involving this as well as other questions not arising here.

Besides the fidei commissum this will presents, the other feature equally obnoxious to our law is incidentally discussed. The legal heir, minor or major, can not be excluded from possession by any disposition attempting the prolongation of the executor’s seizin utterly beyond the power of the testator. The will in this respect is void, and reputed not written. C. C. 1671; Percy vs. Provan’s Executor, 15 La. 69; Succession of Fisk, 3 An. 705.

All the phases of the discussion in the elaborate brief of the defendant’s counsel have had our attention, but we have deemed it enough to bring the ease within the scope of the views of controlling influence. It remains to consider the proposition urged on us, that the will in favor of the minor is an entirety and must be accepted or rejected as a whole. The answer to this, we think, is furnished by the Oode. The part of the will we hold to be a fidei commissum is reputed not written. Civil Code, Art. 1519. Beaulieu vs. Ternoir, 5 An. 480. The testator can not clog even the disposable portion with either a substitution or fidei commissum. In the first the whole disposition falls and the title of legal heir remains and is enough. If a fidei commissum the law avoids it.

We have given attention to the other contention that by the will of the deceased the two sons are entitled to ten thousand dollars from their, co-heir, the granddaughter. The claim is founded on that part of the will in which the testator reciting his gift as a wedding present to the mother of the minor of a tract of land in Tennessee, declares the desire that his two sons should receive the equivalent of that tract “ then worth five thousand dollars.” That sum, without interest, he devises to each of his sons as an extra portion to be taken out of the disposable portion of his estate.” The contention on the side of the plaintiff is no collation of this land or its value was due, because the mother died first; that the gift was a wedding present, and the land is not within our jurisdiction. Civil Code, Arts. 1238, 1239, 1240, 1241. On the other hand the will is relied on as a legacy of money. The construction of the will as to the amounts the sons are to receive is not free from difficulty. It is apparent, we think, the testator intended not collation in its strict sense, but the increase of the portions of the two sons. Preceding the partition between the heirs the subject was discussed and a partition was agreed upon, by which in adjusting the share of the minor she took five thousand dollars less than her co-heirs. The partition completed on this basis has been homologated. We perceive it is claimed the sons were not aware of their rights in this matter. On the other hand it is urged the subject was understood, and that counsel were consulted. We do not find the basis to open this controversy. The judgment of homologation, we think, is binding. Civil Code, Art. 1374; Hooke vs. Hooke, 14 La. 23.

There is a contention as to the fee to be paid by the minor for the counsel’s fee in defending the will of the deceased against the attack of the minor. We can appreciate the feeling of the sons that prompted them to defend the will, with the execution of which they were charged. They might well prefer the decision of the question •by the courts as their guide, notwithstanding the decision in the McCan case adverse to a testamentary disposition like this. We think, too, that the proper fee for defending the will should be paid from the mass of the estate, not borne by one only of the heirs. In some respects this litigation involves the rights of the two sons against their co-heir. In the other aspect the litigation concerned the maintenance of the will. We have given our attention to the question of the proper charge to the minor as her part of the counsel fee, and with due consideration of all that has been urged on both sides, we think the proper fee, or rather part of the total fee to be charged the minor, would be two hundred and fifty dollars, and we shall make that amendment to the judgment of the lower court.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be amended so as to charge the minor with two hundred and fifty dollars, portion of the fee of counsel for defending the will, and as thus amended the judgment of the lower court be affirmed, with costs.

Nicholls, C. J., and Breaux, J., concur in the decree.


author: Nicholls, C. J.

text:
    No. 12,375.
    New Orleans & Northeastern Railroad Company vs. McEwen & Murray, Limited, and Gulf Lumber Company, Limited.
    when loss to the plaintiff has been occasioned- by accident and uncontrollable events (Art, 2754, O. 0.) the defendants being without fault are absolved from liability.
    In order to render a person chargeable in damages for an act of commission or omission on his part it must have been the proximate cause of the damage.
    A mere failure to guard against a certain result is not actionable negligence unless under all the circumstances it might have been reasonably foreseen by a man of ordinary intelligence and prudence.
    A PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Harry H. Hall for Plaintiffs, Appellants.

      Denigre, Blair & Denigre for Defendants, Appellees.

      Argued and submitted April 1, 1897.
    Opinion handed down April 26, 1897.
    Statement op the Case.
    Plaintiffs claim that McEwan & Murray, Limited, and the Gulf Lumber Company, Limited, are indebted to them in the sum of four-thousand seven hundred and thirty-one dollars.
    That prior to September, 1893, they had properly erected along the south shore of Lake Pontchartrain, between the intersection of People’s avenue and the said lake and the Pointe-aux-Herbes, an embankment of earth, and had duly constructed thereon their railroad under and by virtue of legislative and municipal grants and franchises. That in order to protect said embankment against the waters of Lake Pontchartaiu in times of storm they had constructed at great expense in front of said embankment, and between it and the said lake, a revetment amply sufficient for the purpose for which it was intended.
    That several months prior to the 1st of October, 1893, the Gulf Lumber Company, Limited, while towing in Lake Pontchartrain a raft of large saw-logs, the property of McEwen & Murray, Limited, and destined for their mill, carelessly and negligently permitted the same to escape from their control, and to drift out upon the waters of Lake Pontchartrain. That said Gulf Lumber Company, Limited, was towing said logs under a contract for full consideration with McEwen & Murray, Limited, their obligation under that contract being to tow and deliver said logs in a careful and proper manner. That for several months thereafter said Gulf Lumber Company permitted, negligently and wantonly, and without proper cause or excuse therefor, said logs to float about loose and uncontrolled in said lake, when they could have easily and readily secured the same.
    That in the last days of September or in the early part of October, 1893, there occurred a violent storm which dashed the waters of Lake Pontchartrain with great force and fury against petitioner’s revetment. That said revetment, however, was so well and strongly constructed that it withstood the force of said water and protected petitioner’s said roadway and embankment and would have continued during and after the storm, until the present day, to so withstand said water, and protect said roadbed and embankment, had it nofc been that the aforesaid logs, which even then were negligently and without proper cause permitted to drift about in said lake, been violently dashed by the waters and waves, raised by said storm, against said revetment, which was demolished in several places by the pounding of said logs, which broke through said revetment, and permitted the entrance of the waves, which washed away a great part of petitioners’ revetment. That petitioners, after they had duly notified defendants that they would repair said revetment at their costs and expense, thus putting them in default, proceeded to repair and did repair the damage aforesaid, so caused entirely by the negligence and wrongful acts aforesaid of defendants, at a cost of four thousand seven hundred and thirty-four dollars, which they had paid, as would appear by an itemized billannexed to the petition. It prayed for judgment against both defendants in solido for that amount.
    McEwen & Murray, the defendants, answered, admitted that the Gulf Lumber Company had been and was still under a contract to tow logs for the said mill, owned and operated by McEwen & Murray, Limited, as shown in the answer filed in the case by said lumber company, and that the McEwen & Murray corporation were the owners of the saw-logs which were scattered from the tow then under the control of the aforesaid lumber company, on or about the 10th of April, 1893, as alleged by plaintiff and admitted by said lumber company in their answer, but they averred that the corporation of McEwen & Murray had neither possession nor control of said logs, as the same were then in transitu toward that company’s saw-mill, and in the possession and under the control of a common carrier, the aforesaid lumber company. They denied that the McEwen & Murray Company was guilty of negligence or carelessness, either in the handling of said logs, or failing to recover the same, and emphatically denied that the company could be held liable for any damages alleged to have been caused ,by any of the said saw-logs to plaintiffs’ property or breakwater.
    The Lumber Company admitted that since the beginning of the year 1893 they had been under a contract with McEwan & Murray, Limited, which owned and operated a saw-mill on the New Canal in the city of New Orleans, to haul and to tow saw-logs from sundry tributary streams emptying into Lake Maurepas on said lake through Pass Manchac, on Lake Pontchartrain, into the New Canal, •to the saw-mill of McEwan & Murray, Limited; that for the purpose of said towage the logs are chained together in small quantities, forming what is known in the trade as “cribs,” which cribs are strong -and chained together and securely fastened to astrong steam towboat ■operated by respondent. That with the aforesaid means and following the abovemethod, said company had successfully towed large numbers of saw-logs to the aforesaid saw-mill; that the same mode •of supplying other saw-mills in New Orleans had been successfully carried by other lines of towboats plying on Lake Pontchartrain and. entering into the New Oanal as aforesaid.
    That Lake Pontchartrain being navigable water in the United States, the business of hauling and towing saw-logs in the manner above indicated is a lawful trade or occupation, and the towing of logs in ■said manner is as safe as any other mode of navigation, no logs being ever separated from any tow and carried beyond the control of the towboat or its crew in large quantities, except in cases of sudden and unforeseen gales of wind and tempests. That on or about the 10th of April, 1893, while the towboat of the respondent company (on board of which the president of the company was in person) was hauling a tow, composed of some two hundred and seven logs, the towboat and the cribs of logs were met by a suddon and severe ■storm at a distance of about one and a half miles west of the entrance of the New Canal into Lake Pontchartrain.
    That under directions of the president of the company the boat was anchored at about 11 A. m. of that day, and through the efforts of her crew the logs were held together until 1 o’clock of the ensuing night, when, under the increased fury of the storm, the cribs were broken asunder and the logs of the tow were scattered over the lake beyond the reach and control of the boat and of her crew, only six logs remaining in the tow — the same being hauled in on the next ■day.
    That on diligent search respondent discovered that the scattered logs were driven in many different directions, some ninety-five of which were recovered through parties employed by the company, ■others being found on shore at Mandeville, in Louisiana, some at Pass Manchac, others at Little Woods, on Lake Pontchartrain, some .at the bridge of the plaintiff company, others at the mouth of Bayou St. John, and some twenty-two were traced to the vicinity of plaintiffs’ revetment or breakwater on the lake shore, where many other logs of different brands were also found.

      That on three different occasions very serious efforts were made by the respondent company through competent parties employed for that purpose and by means of some of its own boats with all necessary-appliances to pull off and recover the logs which had been driven near plaintiffs’ breakwater by a disastrous and terrific storm which, struck Lake Pontchartrain and surrounding country on the 1st of October, 1893, but without success, although several hundred dollars, were expended by the company in their effort to remove said logs.
    Respondents denied that they were guilty of any negligence either in losing their aforesaid tow of saw-logs or in making necessary efforts, to recover them, and that they were in any manner liable to plaintiffs for damages in the premises. They av.erred that under the circumstances the logs were lawfully lying on the lake shore and that, the breakwater of plaintiff having been built on navigable water of the United States at a point where no harbor lines had been established, was then and continued to be an illegal impediment to navigation and a public nuisance.
    The District Court rendered judgment in favor of the defendants and against the plaintiffs, rejecting their demand, and they appealed.
   The opinion of the court was delivered by

Nicholls, C. J.

In March, 1893, a contract was entered into between McEwen & Murray, Limited, a corporation owning and operating a saw-mill on the New Canal, in the city of New Orleans and the Gulf Lumber Company, by which the latter bound itself to haul and' tow the former’s saw logs from different points on streams emptying into Lake Maurepas, on said lake through Pass Manchac, on Lake Pontchartrain, into the New Canal to the saw-mill of the owners.

For the purpose of towing, the practice has been to bind ten or twelve logs together by chains into what are known as “ cribs ” and to construct a raft with them by chaining a number of these cribs together. The raft is then fastened securely to the steamboat by which they are to be conveyed. In April, 1893, when one of these rafts was being conveyed by a towboat of the Gulf Company to the city of New Orleans, the boat, when at a point on Lake Pontchartrain about a mile and a half from the mouth of the New Canal, encountered in the night-time a violent storm. Its severity was such as to ■cause the raft to break loose from the boat and get beyond the reach ■of her crew. Before morning it had disappeared from view. The raft finally broke to pieces, some of the cribs retaining their forms, ¡but most of them separating, and the logs of which they were composed scattering in different directions along and across the lake. At what precise time and place the raft broke into pieces does not •clearly appear. Many of these logs, and also a number of the cribs, were subsequently found in different localities miles apart, either grounded upon the shore or upon the sand bars in the lake, which run parallel to the shore at some distance out from it, or lying in the shallow waters between those bars and the shore. The Gulf Lumber ■Company did not attempt until some time after the storm to ascertain what became of the raft and its different parts. They finally, however, at different dates between April and the 1st of October, •sent out steamboats properly manned and with proper appliances to recover the logs and cribs, if possible. Outside services were also ■called into requisition.

Although many of the logs were recovered by these operations, a portion of them remained still in the lake and upon its shores on the last mentioned date. A part of those were doubtless in frontof the revetment which the plaintiff company had built for the protection of their roadbed, and which was constructed at no great distance from •the lake shore. On the first of October an exceptionally violent storm •occurred, which caused the waters of the lake to rise and to beat in -an extraordinary manner upon the shore in front of the plaintiffs’ revetment. The direction of the wind and waves was such as to drive logs which were in the lake in the vicinity of the plaintiffs’ revetment upon it and to batter it down in a number of places, not ■only injuring the revetment and necessitating its repair, but also injuring the embankment by the washing, of the waves upon it through the open spaces of the broken revetment.

Affer the damage had been done a correspondence took place between the plaintiff company and the defendants in reference to a number of logs which, the former asserted, “ drifting in Lake Pontchartrain, had floated against their revetment work and their embank - ment, between Little Woods and the city, where they were a menace the revetment in case of another storm.” The plaintiffs wrote that they had been informed that the logs, belonged to McEwen & -Co., Limited, That if such was the fact they asked McEwen & Murray to remove them at their earliest possible convenience. The plaintiff company also wrote to the defendants claiming that the injury already done to the revetment and embankment had been caused through the negligence of McEwen & Murray and that of the Gulf Lumber Company by logs belonging to the former, notifying them that they proposed to repair the damage done, and to hold both defendants responsible for the cost of repair. The repairs were afterward made, and it is admitted that the amount claimed is correct, if it be legally due.

The Gulf Lumber Company replying to the letters written by the plaintiffs in relation to the logs then on the lake shore, stated that all the logs branded “ M ” belonged to McEwen & Murray, but were in the writer’s care until they got them at the mill. That the logs which were scattered from Milneburg to the railroad got away from them during a high sea, and that so far they had been unable to get them — that they were then getting a small boat in readiness with which to get them off and that they expected to get them off in the next ten or fifteen days. They denied that the logs had gotten away from them by negligence, and asserted that their getting away had entailed loss on them.. In February of 1894, McEwen & Murray wrote the plaintiffs in reply to a letter written on the 30th of January, 1894r that the Gulf Lumber Company had been unable to get the logs on the Northeastern tracks, on account of boats being broken and also-low water.

That they would go over there in a short time and get them off; that the matter would receive their close attention. On the 1st of February, 1894, the Gulf Lumber Company wrote the plaintiffs that “they had gone down and made an effort to get the logs, but the water was so shallow they could not reach them, but that as soon as they got high water they would be after them, for they wanted them badly.” On the 3d of February the plaintiffs wrote the Gulf Company that unless they indicated a reasonable time within which they would undertake to remove the logs which threatened the revetment, the railroad company would be forced to relieve their works of the threatened danger at the expense of the Gulf Company. That situated as the logs were they would again very seriously damage the revetment in case of a storm. That while it was true it would be less expensive to remove the logs during high water than at the then stage of water, the risk of damage to the plaintiffs’ works should be taken into consideration. They, therefore, called on the company to inform them positively whether they' would remove the logs within a time which they would indicate and fix.

On the 9th the Gulf Company announced, that it would be impossible for them to remove the logs at that time or to name a date when they would do so; that all that they could say was that they were very anxious to have the logs, and that as soon as thé water would permit a boat not drawing over four feet of water to get within 800 feet of them, they would do so. ;

■ On the 12th the plaintiffs notified the Gulf Lumber Company that unless the logs lying in front of the revetment which protected their ■tracks were removed by the 1st .of March,-they would, in order to protect their works against the damage which would inevitably follow from the logs being thrown against the works by a storm or high water, cut up and remove them at that company’s risk and expense, and that they would hold them responsible for any damage that might occur in the meantime. On the 15th of the month the attorney of the Gulf Company wrote plaintiffs that their client had, since a portion of their logs had been blown by the terrific storm which swept over this portion of the State in September (October) in the proximity of the railroad company’s revetment, made three serious efforts with all the means at their command to reach and remove the logs, but that owing to the stage of the water at that point their attempts had been unsuccessful. They suggested to the plaintiffs that as they had better access to the logs than their clients had, they might be cut up into useful materials. They therefore proposed to the plaintiffs to sell them the logs at a price much below their real value as saw-logs. Plaintiffs declined to make the purchase, but stated that if the logs could be cut up into such lengths as would be useful and available to the Gulf Company, they would receive any suggestions which ■ that company would make to that effect. On the 23d of February'plaintiffs’ attorney wrote to defendants’ counsel a letter substantially to the same effect, stating additionally that unless the logs were removed by the 1st of March the railroad company would be compelled to have them cut up and removed.

This letter was followed by a reply from defendants’ counsel in which after referring to the declaration made that the plaintiff would, after the 1st of March, cut up and remove the logs, they said, on behalf of their clients that they earnestly protested against the cutting up of their logs by the railroad company or any person acting under their orders or authority; that before doing so their attention was directed to the provisions of Act No. 104 of 1892, and that their clients intended to prosecute all offenders under the terms of that statute.

We find nothing in the record which justifies a charge of negligence in the Gulf Lumber Company in losing their logs on the night of the 10th of April. We think “ their loss was occasioned by accidental and uncontrollable events” without their fault, and that under the terms of Art. 2754 of the Civil Code they were absolved from liability at that time and for that fact.

Plaintiffs contend that it was the duty of the defendants to have immediately followed up the raft and secured it.

Had any loss or damage resulted to third parties at that time by reason of the rafts being adrift, when by proper and timely efforts they could have been recovered, we would have been called on to say whether, under the circumstances shown to have then existed, the company were under legal obligation to take the course which plaintiffs maintain it was their imperative duty to have followed, or whether they were entitled to invoke the same rule which is laid down in reference to the owners of vessels sunk through unavoidable accident in navigable waters. We find it announced that “ where a vessel is sunk through an unavoidable accident in navigable water, the owner is not obliged to remove the wreck, nor is he liable for injuries it may cause to others, nor indictable for maintaining a nuisance, although navigation is obstructed.” Am. and Eng. Ency. of Law, verbo “Wreck,” page 995; 1 Ed. Sherman and Redfield on Negligence, Vol. 2, No. 738.

There is no one before us claiming to have received injury or to have been damaged at that time by a failure of the Gulf Company to take immediate steps to ascertain what had become of the detached raft, and there is nothing which would authorize us to say that if such steps had been taken that the ra,ft could have been then found, or found under such conditions as would have brought about a result different from that which actually occurred. Plaintiffs contend, however, that even if defendants were not originally liable for the damages which would follow from the situation and condition of the different parts of the raft at a later date, they have made themselves so liable by reason of tbe fact that instead of abandoning the cribs and logs, they have insisted upon their continued ownership of the same. They invoke on their behalf the principle doctrine announced in the concluding sentence of the extract from the American and English Encyclopedia of Law; which we have quoted, and which is to the effect that “if the owner, instead of abandoning the wreck, retains possession, he is liable for any injuries arising from his failure to take proper precautions for the public safety.” See Sherman & Redfield on Negligence, Vol. 2, No. 738.

Plaintiffs refer us to Secs. 1614 and 1615 of Domat’s Civil Law (Cushing’s Edition), where, under the chapter in which the author deals “ Of the consequences of the engagements which are formed by accidents,” he says: “The proprietor of a ground on which is thrown the rubbish of a building that is fallen down, or that which a flood has carried away from another’s ground, is obliged to suffer him who has had the loss to take away what remains and to allow him such free access as is necessary for that end, but upon the conditions that are explained in the following articles ” (Sec. 1614) :

“ In the cases of the foregoing article he who desires to have back the materials of his building that is fallen down or that which a flood hath carried away from his land and thrown upon another’s ground is obliged, on his part, not only to indemnify the proprietor of said ground as to what damage shall happen to be done by his taking away the things which have been-thrown upon it, but he is, moreover, bound to repair all damage which has already been done to the ground by the things since they were cast upon it. But if he choose rather not to take away anything he will owe nothing, for if he abandons to the proprietor of that ground all that is cast upon it, he is not bound to make good a damage that has happened by the bare effect of that accident, and it is enough that he loses what the accident has carried away from him.” (Sec. 1615.)
“ If he whose materials or other things have been thrown by these accidents on the estate of another person be desirous to take them away he will be obliged beside the making of reparation for the damage sustained by the owner of the ground to take'away as well the unprofitable stuff that can be of no manner of use as that which is useful, and which he is desirous to take away and to clear entirely the surface of the ground on which the things have been thrown.” (Sec. 1616.)

We will refer to this particular matter later. Eor the present we go back to an examination of the conduct of these defendants in the interval between their first discovering traces of the missing raft, up to the date of the storm of October 1, 1893. It was unquestionably not the intention of the defendants to surrender their ownership of the logs which had scattered, which they could locate and identify. They made very sincere and earnest efforts to recover and save them, not on account of any danger to be apprehended to-special individuals or to the public generally by rpason of their situation, but because of the value which they were deemed by the owner to have relatively to the expense necessary to redeem them. We take it for granted that had they been of the opinion that this value would not have justified any attempt at all at their recovery,, none would have been made, but they would have been abandoned. Also that they never intended that an attempt would be made to retake logs found which were, on examination, ascertained to be in such a special condition as not to warrant the expenditure of the money needed to accomplish it. We think it can be fairly assumed that while not abandoning for the time being any of their property, the owners proposed to ultimately abandon such portions of it as could be secured only by an unreasonable outlay of money. While we think it might have been possible at very great expense and by the taking advant ge of special stages of water and wind to have removed all the logs by boat, we do not think the situation was such that the owners simply as owners could have been reasouably expected to have taken any more active steps than they did toward regaining the logs. They might perhaps have been brought into the shore and there cut into pieces as was suggested at one time, but-defendants were engaged in the business of operating a saw-mill and not of selling wood, and the logs would have had but little value to them when cut up. In dealing with the acts of the defendants in this matter we have, therefore, to ascertain whether, independently of any question of value and expenditure, they were under a legal obligation for the safety of either special individuals or of the public generally to do more than they did in the premises. Defendants were not at fault for the escape of the raft. They had no agency whatever in respect to the particular places where the cribs and logs were lodged by the winds and waves, nor in determining the particular conditions in which they were there lodged. If for the conditions existing at the time of the October storm they were liable at all, it was not for acts of commission, but of omission.

The conditions per se were not such as to lead any one to look forward to probable danger or damage in the near future. Even the possibility of danger was remote. The conduct of the plaintiffs prior to the storm indicates no apprehension by them of damage likely to arise from logs on their immediate front. Had they entertained such apprehension they would have called upon the defendants earlier than they did or themselves taken the initiative, and removed the logs, taking the risk of recovering the expense therefor from the defendants. They certainly would not have allowed the comparatively small expenditure which they would have had to make to stand in the way of a threatened serious danger. The correspondence which followed the storm might be pertinent on a claim for future damage, but it has little effect in disposing of matters in the past.

In considering the question of the liability of the defendants to the plaintiffs for not actually and actively removing the logs from the lake front prior to the storm, the plaintiffs must bear in mind that they took upon themselves certain risks in placing their roadbed and revetment where they did. Their position, where placed, was of course legal, but none the less they were exposed from necessity to the possibility of just such a condition of affairs as happened. The lake has constantly upon it drift-wood and logs (reaching it from streams which run into Lake Maurepas through Pass Manehac) . The precise point at which these logs and this drift wood may be when a storm arises is a matter of pure accident-, as is the precise point where they may be during the storm and at its close. The particular logs which may batter down plaintiffs’ revetment during a storm need, by no manner of means, be those which are on its front at its commencement; those may be carried out either to do a work of destruction elsewhere or none at all. The result would be a matter of chance dependent upon the violence of the wind and its particular direction. The presence of logs on the front may under extraordinary combination of circumstances add to the danger of the situation, but we think we can say from the evidence in the record that this danger would be only exceptional. Plaintiffs’ revetment has been in front of their embankment since 1886, without serious, if any, injury to it. Nothing but a storm of the extraordinary character of that of the 1st of October, with its special accompanying conditions, would bring about such a result as tbe plaintiffs complain of. The District Judge in his judgment, referring to it, said: “The storm of October was not an ordinary storm such as an ordinarily prudent man would expect and be bound to provide against. Upon the contrary it was a most extraordinary storm, the equal of which in fury and destructiveness has never but once been known or heard of in this country — an event of such infrequent and remarkable character that even prudent men can not be held as negligent for failing to make effective provision against it. If instead of leaving logs grounded in front of the revetment there had been heavy flatboats or other vessels moored there and secured as ordinarily prudent men would secure such craft, the result, in all probability, would have been the same; ordinary fastenings would have been of no avail as against the phenomenal gale of October 1, and the boats would have been converted into implements of destruction just as the logs were.”

“ Negligence consists in a failure to provide against the ordinary occurrences of life, and the fact that the provision made is insufficient as against an event such as may happen once in a lifetime, or perhaps twice in a century, does not, in my opinion, make out a case of negligence upon which an action in damage will lie.”

We do not think that as a matter of law defendants were guilty of negligence per se in not removing the logs from the lake shore prior to the 1st of October. To hold them negligent (if at all) the attendant facts and circumstances of the case would have to be shown so as from all the facts it could be seen that defendants were in fault. Plaintiffs do not claim that if defendants had absolutely abandoned the logs, fnot being in fault in losing them at the beginning] they m uld have any recourse against them for damages. They charge that the storm of October found a certain condition upon its immediate front, for which condition defendants were responsible by reason of their claim of the ownership of the logs, and of their being held as such owners to a legal obligation to safeguard it and the public against all dangers to result from their situation. The raft did not remain in its entirety. The logs of which it was composed were scattered for miles along the shore. The defendants can scarcely be said to have retained possession of them or to have held possession of any logs other than the particular ones which they might be attempting to remove, and then only so long as they were working to that end upon them. It was impossible that they should retain any greater possession or longer possession of the same than this. It was impossible for them to guard them in the lake. We do not think that by directing their attention to such logs as admitted of being removed and removing them, defendants bound themselves for the removal of such as could be removed only by extraordinary methods and at unreasonable expense, either absolutely or within any special time. We think they were authorized to abandon, as we have no doubt they always intended to abandon, such as could be removed only under such circumstances.

Defendants never claimed the logs which were thrown inside of defendants’ revetment upon their embankment, or upon any of their lands. Those which were cast upon their land are there yet unclaimed, so that the passage from Domat finds no application in the facts of the case. We think that" defendants’ efferts in the direction of removing the logs (if it was their duty to do so) were as great as could be expected and made as promptly as could be expected. (Sherman & Redfield on Negligence, Vol. 2, No. 738.) They are chargeable with no act of omission or of negligence for which they can be made legally answerable in damages to the plaintiffs.

In Hanson vs. Railway Co., 38 An. 117, this court declared that negligence, in its common acceptation, was held to be “ the doing of something that a reasonable and prudent person would ordinarily not have done under the circumstances of the situation or the omission to do something which a person of like character would have done under the circumstances of the case.”

The Supreme Court of the United States in Railroad vs. United States, 95 United States, 441, gave to the term substantially the same definition, adding “ that the duty was dictated and measured by the exigencies of the situation.” In order to render a person chargeable in damages for an act of omission or commission on his part the act complained of must have been the proximate cause of the damage.

In Hubber vs. La Crosse City Railway Co., the Supreme Court of Wisconsin, affirming what had been previously declared by it in Block vs. Railway Co. (61 N. W. 1101), said: “The negligence is not the proximate cause of the accident, unless under all the circumstances the accident might have been reasonably foreseen by a man of ordinary intelligence and prudence. It is not enough to prove that the accident is the natural consequence of the negligence. It must also have been the probable consequence. Atkinson vs. Transportation Co., 18 N. W. 764; Barton vs. Society, 52 N. W. 1129; McGowan vs. Railway Co., 64 N. W. 891.

‘‘A mere failure to guard against a result which could not have been reasonably anticipated is not actionable negligence.” A condition is ordinarily a remote cause and it was so in this instance (see 67 N. W. 19).

We are of the opinion that the judgment is correct and it is hereby affirmed.


author: MILLER, J.

text:
    No. 12,545.
    The State of Louisiana vs. Amedee Collins.
    In a prosecution for larceny the proof of value of the stolen property may be inferred from the fact that a sum of money was put to the credit of the accused by the firm to whom he sent the property to be sold.
    A PPEAL from the Twenty-second Judicial District Court for the -‘A Parish of Plaquemines. Single, J.

      M. J. Cunningham, Attorney General, and Albert Estopinal, Jr., District Attorney, for Plaintiff, Appellee.

      James Wilkinson for Defendant, Appellant.
    Submitted on briefs June 5, 1897.
    Opinion handed down June 22, 1897.
   The opinion of the court was delivered by

MILLER, J.

The defendant appeals from a sentence for larceny.

He was tried by the court and relies for the reversal of the sentence on a bill of exceptions which recites the testimony produced on the trial. It is claimed the bjll shows no proof of the value of the stolen property, and hence the judgment is erroneous and the sentence should be set aside.

Proof of value to maintain the charge of larceny is important only because of the difference in punishment formerly recognized in grand and petit larceny, but in the changes in the criminal law on the subject of larceny the difference ceased of recognition, and with it the reason for the proof of value. Mr. Archbold lays it-down that no such proof is essential. It is claimed, however, that under our present legislation the difference between grand and petit larceny is recognized, and hence proof of value is necessary. The proof on that point, however sufficient, fairly supports the inference that the thing stolen was of value.

In the bill of exceptions, as we appreciate it, there is the proof of the taking; that the property stolen was shipped to a mercantile firm to be sold, and that firm placed the sum of eight dollars to the credit of the accused. The fair presumption is the credit was for the property and showed its value. The judgment of the lower court against the accused was doubtless based on this credit as showing the value, and in this we do not think the lower court erred.

In the brief for defendant it is urged the lower court excluded all the testimony as hearsay. The fact that the accused was credited, or, in other words, that the money was placed at his disposal by the firm to whom he shipped the property for sale, was not hearsay, and we must presume the judge gave it effect in condemning the defendant. It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.

Nicholas, O. J., absent; ill.


text:
    No. 12,558.
    State of Louisiana vs. Walter C. Flower et als.
    1. The provision in the Constitution prohibiting local and special legislation on enumerated subjects, including the creation of corporations and amending charters, does not strip the Legislature of the public power to provide for the efficient drainage of this city, by the instrumentality of the drainage commission designated by the act. Constitution, Art. 46; BlacJr’s Constitutional La,w p. 290 et scq.; Cooley Constitutional Limitations, p. 572; The Drainage Case, 11 An. 338.
    2. Moreover, theproonso not to apply to the city of New Orleans, accompanying the prohibition of legislation respecting corporations, and if not by the proviso t certainly by Art. 253 of the Constitution, and the proviso, tbis drainage act is completely withdrawn from the operation of the prohibition.
    3. The Art. 253 of the Constitution, securing to the citizens of New Orleans the appointment of the officers required for the police administration of the city, is not to be construed so as to divest tbe State of the police power to protect the public health by a system of drainage of more extended scope and, in the legislative judgment, more efficient than within the ability of the city to supply. 11 An. 338.
    PPEAL from the Oivil District Court for the Parish of Orleans. Monroe, J.

      Milton J. Cunningham, Attorney General (Farrar, Jonas & Krutt - schnitt of Counsel), for Plaintiff, Appellee.

      Howe, Spencer & Cocke for Defendants, Appellants.
    Argued and submitted June 10, 1897.
    Opinion handed down June 21, 1897.
   The opinion of the court was delivered by

Miller, J.

The defendants appeal from the judgment annulling the act for the drainage of the city, and hence denying their corporate capacity claimed under the act. Session Acts 1896, No. 114. The suit is brought by the Attorney General under the provisions of law, which, taking away the writ of quo warranto as the remedy for the unwarranted exercise of public office, substitutes the appropriate procedure by the Attorney General to test the right to exercise corporate functions claimed under any law of the State. Revised Statutes, Secs. 2593, 2596, 2597, 2603; Railroad vs. Town of Kentwood, 49 An., not yet reported.

The act assailed is to effect the drainage of the city; provides for a drainage board of nine; the mayor, the chairman of designated committees of the council, the presidents of the Board of Liquidation of the City Debt and Orleans Levee Board, and two others to be selected by the designated members; the board thus constituted is to have succession and other usual corporate powers to effect the drainage; to accomplish the work the board is authorized to contract for the materials, labor and supplies requisite; employ engineers and other needful agents and do all things requisite for the drainage of the city in accordance with the plan adopted by the council; the act sets apart for the expense of the work the proceeds of sale of city franchises, and that part of the fund now in the hands of the Board of Liquidation and to accrue after 1st January, 1898, heretofore dedicated to public improvements under existing laws and constitutional amendments (Acts 1892, p. 144) ; to procure means, in advance of realizing the resources pledged by the act, the power to issue bonds bearing interest, payable in forty years, is conferred on the board, the payment of which is secured by the means the act provides; in aid of the drainage the power to expropriate is given, the right to connect the system begun in New Orleans with the waters of the adjoining parish is conferred: to make the drainage more efficient the act requires the co-operation of the Orleans Levee Board, the Board of Liquidation, and these bodies along with the city are represented in the composition of the Drainage Board.

Two grounds to annul the act are alleged in the petition and sought to be supported in argument; it is charged the act is local and special legislation creating a corporation within the prohibition of Art. 46 of the Constitution, and because of the alleged infringement by the act of the right guaranteed by Art. 258 of the Constitution to-the citizens of New Orleans of appointing the officers to conduct the-police administration of the city.

There are two articles in the Constitution relative to local and special legislation. One is permissive, provided notice of the intended law is given, and provided the subject is not embraced in the-other article, absolutely prohibitive of such legislation on enumerated subjects. Arts. 46 and 48. The permissive Art. 48 is not involved in this discussion. The subject of the act is claimed to be within the scope of the prohibition in Art. 46 of local or special legis- ■ lation creating corporations or amending charters. In Art. 46 there-is the suggestiveness in the enumeration of the subjects with reference to which legislation is prohibited, of the legislative appreciation of the scope of the prohibition. Thus laws changing the names of persons; for the education of children; granting divorces; giving-privileges or monopolies to individuals, and similar acts commonly known as private bills, are forbidden. These prohibitions have no-application to this controversy, but they tend to illustrate the general bearing of the inhibition as the framers of the Constitution-understood it. In connection and along with private bills the article-forbids the legislative creation of corporations and amendments of charters, and it is this prohibition, accompanied as it is with the-■clearly expressed proviso not to apply to the corporation of this city, that the plaintiff conceives, annuls the drainage act.

It seems to us the appropriate sphere of this prohibition of the creation of corporations and amendment of charter can be readily appreciated without denying the legislative power to deal with the drainage of this city. The great mass of legislation filling our statute books of earlier years, of special acts of incorporation for each and every village or town, or private individuals seeking corporate privileges, at every session, the equally numerous demands on the Legislature for amendments of particular charters, public or private, were the prominent evils that the inhibition under discussion was designed to correct in future legislation. The response to the constitutional prohibition is, in our present general statutes, for the formation into corporations, of all towns or villages complying with prescribed conditions; other general laws conferring powers deemed essential for all subsisting municipal corporations; the statute affording all private corporations the means pointed out in the act of amending their charters and similar legislation. Acts 1880, No. 125; Act No. 49, p. 111; No. 26 of 1882; Act 150 of 1890, Sec. 14. Now does the general import conveyed by this prohibition in Art. 48, aided by the illustration of the purpose in view, and by the legislative interpretation since the Constitution came into existence, afford the basis for this court to hold that this inhibition directed against private bills and special legislation as to corporate rights strips the Legislature of the police power to provide for the drainage ■of this city.

The argument, In great part, is directed to the proposition that the drainage commission possesses corporate powers, and by the - usual tests, as well as by the terms of the act, is constituted a corporation; hence, it is argued, the act is brought clearly within the prohibition of the creation of corporations by special act. But passing over all the discussion to show that the commission is a •corporation, and giving the argument on that point its full force, does it follow that the inhibition as to the creation of corporations of undoubted usefulness and applicability for the purposes, we think, were in the contemplation of the Constitution, divests the Legislature of that power, the exercise of which is manifested by this drainage act? The attribute of government we call the police power, resides in the State, can not be relinquished by the Legislature, and if it can be surrendered by the organic law, at least, the abandonment to command judicial acceptance should find the clearest ■expression. Are we to take for that expression the constitutional provision against creating corporations, designed, in view, for purposes entirely distinct from the surrender of a great power ■of government? The intimate association of drainage with the public health is obvious. Ip. our earliest legislation the drainage of this city was deemed a measure of vast importance to the State and ■city. Acts 1835, p. 168. If that was the view then, there is the added force derived from our experience that this city is the gateway through which, aided by local conditions, not the least of which is bad drainage, diseases of foreign origin may, and medical scientists affirm, have become epidemic here and propagated throughout the State. It seems to us that the drainage act viewed as a health measure must be deemed within the legislative competency, not-surrendered or impaired by the constitutional prohibition of local or special legislation respecting corporations.

Again, the statement in the pleadings, enforced in the argument, is that the prohibition of creating corporations or amending charters applies to this city, and this drainage act is not within the proviso. The result of the statement and argument is, as we appreciate it, that the Legislature is prohibited from giving New Orleans any legislation creating a corporation to conduct its affairs or amending its charter.. There stands in the Constitution the inhibition of legislation ■creating corporations or amending charters, and the argument is, the drainage act is within the prohibition and not saved by the proviso. Without the aid of Art. 253 giving the Legislature plenary authority in respect to this city, the argument fails that the prohibition of Art. 46 applies to this city and defeats the drainage act. If it prevents the draining legislation it is an impediment to the charter under which we live, and was fatal also to that of 1882. The conclusion to which we think the argument leads answers it. To guard against any such conclusion the framers of the Constitution ex industria added the proviso: “Not to apply to the city of New Orleans,” and the plaintiff’s argument asks us to treat the proviso as ineffective. We have considered the prohibitory part of ‘Art. 46, in its supposed inapplicability to this city, as if there was no proviso. In that aspect our conclusion is, the power to enact the drainage act was in the Legislature, with the proviso, it is made clearer that the act is not within the prohibition of that article.

The right of the citizens of New Orleans to appoint the officers for the administration of the government of this city has been, with some variance of language, secured by every Constitution of this State save that of 1868. Constitution of 1812, Art. 6; Sec. 23 of 1845; Act No. 128 of 1852; Act No. 124 of 1879. We are asked to construe this provision so as to deprive the State of any power to enact this drainage. The argument is that under the Constitution every function of the city government is confided to the officials selected by the citizens, and reference is made to the city charter to show that drainage is one of these functions. The framers of the Constitution manifested their appreciation of the right of local government which should vest in the citizens of this city. But the question is whether the right thus conferred on the citizens, does not admit of qualifications when sought to be applied to governmental functions exerted within the limits of the city, but of the highest importance and of more than local concern. Instances will readily occur of legislation in reference to subjects of deep interest to the State and city and providing State instrumentalities to carry into effect in this city such legislation. It has never been supposed that the State has parted with all legislative control of such subjects, by the provision in the Constitution giving to the citizens of New Orleans the appointment of the officers required for the police administration of the city. The police power given to the State to protect the public health, we can not appreciate, is to be abridged by a constitutional provision dealing with the ordinary functions of the police administration of the city, and confiding such duties to the agents selected by the citizens, This drainage act by reason of the nature of its subject; the scope of the act proposing a great public work begun in one and continued in the adjoining parish, and in view of the means and agencies not within the control of the city, but within the power of the State and combined by this act, suggest forcibly that such a legislative act is an exertion of the power which necessarily must reside in the State, and is not divested by the provision in the Constitution for the local government of this city. Our past legislation is quite instructive as to the scope of the provisions urged in this case as utterly excluding the legislative control of drainage by the instrumentalities deemed most efficient in the legislative judgment. It is not at all novel in our legislation to appoint State officers for the performance of functions in this city relating to subjects of more than the interest attaching to ordinary police functions of the city officials. From an early period we have had the legislation providing for harbor-masters and wardens with duties relating to the commerce of this city, and to be appointed by the Governor of the State. In all the duration of this legislation there has been the constitutional provision for the appointment by the citizens of their local government. Yet except in the recent discussion in the Dock Commission case, no one supposed that functions like those of the harbor-masters and wardens connected with the commerce of this city might not be confided to State officers. Our reports show contentions as to the appointment of such officials, but the gubernatorial power to appoint was never contested on the ground that police functions in this city embraced duties pertaining to subjects of general importance like those of the wardens and harbor-masters and others that are readily suggested. Revised Statutes, Secs. 1679 et seq.; Nicholson vs. Thompson, 5 Rob. 367; Ivy vs. Lusk, 11 An. 486. The Legislature in 1857 created the office of Superintendent of Elections, to be appointed by the Governor, charged with police duties of all elections in this city. The legislation was sustained by the courts, notwithstanding the constitutional provision for the local government of this city by officers selected by the citizens. 13 An. 304. We have the laws in the interest of public health and providing the Board of Health with the functions to be exercised in this city, and the appointment of this board the Governor shares with the council. Yet this legislation has stood for years with no question there was any clash with the article of the Constitution giving to the citizens of New Orleans the appointment oftheir local officers. Revised Statutes, Secs. 3034 et seq. The illus - tration from our legislation might be extended to show the obvious limitation on the constitutional provision invoked in this case as annulling the drainage act, because to be carried into effect by officials designated by the Legislature. The lesson of our past legislation is that the legislative power over some subjects, and the right to designate the officials and instrumentalities by which such legislation is to be executed in this city, is wholly unimpaired by the constitutional grant of appointive power to the citizens of this city. We think the drainage proposed by this act of 1896 is within the legislative power not surrendered by this grant to the citizens. Our jurisprudence on this question is in aid of the validity of this act. In an early case the Supreme Court had occasion to consider this provision of the organic law in reference to the appointment of the officials of New Orleans in connection with a franchise of a corporation to cut a canal within the city limits. The precise point in this case, it is true, was not at issue. The canal was to improve the water navigation within the limits of the island of New Orleans, as it was commonly called at that period. There was an amendment to the charter of the corporation after the adoption of the Constitution of 1812 containing, in effect, the same appointive right conferred on the citizens of this city as that of our day. It may be said that cutting the canal through the city limits was not a police function. Perhaps not. The court in that case upheld the legislation creating this corporation with functions to be performed here by corporation officials not appointed by the citizens, and held there was no conflict between the right of selecting their city official given to the citizens, and the Legislature’s designation of agents to fulfil the object of the canal corporation. The opinion in that ease is quite pertinent on the point that the delegation of the appointive power to the citizens did not divest the reserved power of the State to provide legislation for New Orleans, designed to promote its welfare. Bank vs. Navigation Co., 3 An. 307.

But the litigation that arose under the drainage act of 1835 is of obvious pertinence and of controlling weight in this controversy. See Acts 1835, 168. The preamble to the act asserted the drainage of the city to be of paramount importance to the city and State, as a measure designed to promote the public health, augment the population of State and city and the prosperity of both. It organized a corporation located in this city with ample powers for the work, including the right to expropriate, lay and collect taxes and issue bonds. The constitutionality of this' act was vigorously contested. While it is true that whether the drainage taxes could be imposed exclusively on the property drained, or were not within the purview of the articles of the Constitutions of 1845 and 1852, requiring uniformity of taxation, was one of the questions in the case, it is equally true that the objections urged to the present drainage act were advanced in the former drainage case. The original opinion disposed of the case on the ground of unequal taxation. The dissent was in opposition to that ground, but also withdrew the act from the operation of the article in reference to the local. government of the city. In the final opinion' the chief justice, as the organ of the court, dealing with the objection like that urged here, held that drainage was not within the scope of the constitutional provision, guaranteeing to the citizens of this city the right of local government. See Drainage Company praying, etc., 11 An. 839, 841, 348, 370. Oases involving the right to collect these drainage taxes have been before the courts time and time again, since this decision made nearly half a century since. If the act was still open to the objection that it conflicted with the appointive provision conferred on the citizens of this city, certain it is that no such objection finds a place in any of the elaborate discussions in the more recent drainage cases. We observe the criticism in plaintiff’s briefs of the reasoning for the conclusions in the 11 An. The guides of that day may not be in accord with our lines of thought. Still, the decision remains that without the least infringement of the constitutional provision invoked in this case, it is within the legislative competency to pass an act to drain the city by the aid of a corporation. Such a. corporation this act creates. We think that in principle the act is supported, and besides there is the support, in our opinion, the act derives not only from express determination, but by the analogies afforded by statutory interpretation and our jurisprudence.

This case has been brought here near the close of a busy term,, a speedy decision asked, and amid the pressure of other business entitled to preference, we have given the question careful consideration. We have not gone over in this opinion all the authorities cited, nor dealt with the fullness that all parts of the argument may, perhaps, be deemed to have required. But the argument and all the authorities have had our attention, and our opinion announces the views we think determinative of the issues.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and annulled, and it is now ordered, adjudged and decreed that the plaintiff’s suit be dismissed.

Nicholls, O. J., absent; ill.


author: Blanchard, J.

text:
    No. 12,546.
    The State of Louisiana vs. Charles J. Lewis.
    In a criminal prosecution ior larceny it is sufficient to lay the title of the property stolen in the ostensible or apparent owner.

      'Tile felonious taking, more than the ferfect title of the alleged owner, forms the essence of the issue presented to the jury,
    where an information charging crime ispresented in open court, received, and the accused arraigned thereunder, the minutes of court showing the same, it is in effect and in law a filing even though the clerk neglects to make the formal endorsement of filing thereon, and prescription is interrupted.
    A PPEAL from the Twenty-second Judicial District Court for the Parish of Plaquemines. Hingle, J.

      M. J. Cunningham, Attorney General, and Albert Estopiniil, Jr., District Attorney, for Plaintiff, Appellee.

      James Wilkinson for Defendant, Appellant.
    Submitted on briefs June 5, 1897.
    Opinion handed down June 14, 1897.
    Rehearing refused June 29, 1897.
   The opinion of the court was delivered by

Blanchard, J.

The accused appeals from a conviction for petit larceny and a sentence of six months in the parish jail.

Por reversal of this verdict and sentence he relies on two bills of exceptions and an assignment of error filed in this court.

The prosecution was on information charging the stealing of two coils of barbed wire alleged to be of the goods, chattels and property of one Arthur Dobard,” etc.

In a motion for new trial the accused represented that the State had failed to prove the wire was the property of Dobard, and that proof of ownership, as laid in the information, must be made to justify conviction. He further averred that the barbed wire had been part of a provisional fence between certain properties, that Dobard was not the owner of either property, and, therefore, not the owner of -the fence or any part of the wire taken from it. He made a part of his motion certain records which he claimed showed want of ownership and interest of Dobard, the prosecuting witness, in the wire alleged to have been stolen. This motion seems to have been regularly tried, evidence adduced and argument of counsel had. It was taken under advisement by the court, and, later, overruled for reasons assigned in writing. The judge states, in this opinion, that the evidence on the trial showed Dobard was the lessee of the property to which the coils of wire charged to have been stolen were attached, and that as ownership is not an essential ingredient of the crime of larceny when the property is otherwise identified, he considered the defendant properly convicted.

It appears that the wire stolen had been part of a fence which Dobard had taken down. The wire had been coiled and placed upon land he held in possession under a contract evidencing at once a lease and an agreement to sell to him. From this land it was taken by defendant and this constituted the larceny of which he was convicted.

To the ruling of the court refusing a new trial the first bill of exceptions was taken. The question it presents for our consideration is whether, in order to sustain a charge of larceny, the prosecution must establish absolute ownership in the party from whom the goods are averred to have been stolen.

This is not a new question. It has been more than once before this court, and the law may be considered settled that in a criminal prosecution for larceny it is sufficient to lay the title of the property stolen in the ostensible or apparent owner thereof. State vs. Everage, 33 An. 120; State vs. Kane, Id. 1270.

“The felonious taking, more than the perfect title of the alleged owner, forms the essence of the issue presented to the jury, is the apt expression of the law on this question, quoted from the case first cited.

The accused filed a motion in arrest of judgment and coupled with it a supplemental motion for a-new trial, setting up the prescription of one year, alleging that the offence is charged to have been committed on April 8, 1895, whereas the information was not filed until April 12, 1897. This was tried and overruled, the motion in arrest of judgment because it was presented after sentence had been pronounced upon the accused, and the supplemental motion for new trial, with the plea of prescription it presented, for the reason that the minutes of the court showed the information was filed in open court on the 9th of October,31895, and, also, that on same day the accused was arraigned thereunder and pleaded to the charge.

It appears from the judge’s statement that, at that time, there was an omission on part of the clerk of the court to endorse on the information the usual filing. He says it was purely an oversight on the part of the clerk. He also states the accused when called for trial offered no objection to this irregularity. The omission of the clerk to endorse the bill filed was discovered before the case was called and the District Attorney had obtained leave of the court to have it filed, and accordingly it had been filed as of date April 12, 1897. But it was the same information presented to the court and received on the 9th of October, 1895, and under which arraignment at that time took place.

The second bill of exceptions is leveled at the action of the court in overruling the plea of prescription as embodied in the motion in arrest of judgment and of new trial.

The assignment of error filed in this court raises anew the same plea of prescription of one year. »

This plea is based on Sec. 986 of the Revised Statutes, which is as follows: “No person shall be prosecuted, tried or punished for any offence, wilful murder, arson, robbery, forgery and counterfeiting excepted, unless the indictment or presentment for the same be found or exhibited within one year next after the offence shall have been made known to a public officer having the power to direct the investigation or prosecution.”

The words of this statute “ unless the indictment or presentmen- * * * be found or exhibited ” overthrow the pretensions of defendant herein. The charge against him was “found and exhibited ” to the court on October 9, 1895, within the year of the commission of the offence.

When the District Attorney, at that time, obtained leave to file the.information, presented it to the court and it was received; that was a sufficient “ exhibition ” of the charge against the accused to take the case out of prescription. The information must be held to have been filed at that time, and, hence, the case of the State vs. Davis, 44 An. 972, cited by defendant, does not apply.

A pleading in court may be filed in the sense of the law without the mere endorsement, by the clerk, on it of filing. If he neglects his-duty, it is none the less filed when handed to him for the purpose.

Bouvier adopts as his definition of the word “ file ” these words : “ A paper is said to be filed when it is delivered to the proper officer and by him received to be kept on file.”

Abbott defines it: “ to place on file, or, more generally to deposit papers in official custody, or receive them officially for orderly, systematic safe keeping.” -He further says: “to file, and filing, mean the act of either party bringing the paper and depositing it with the officer for keeping, or the act of the officer in folding, endorsing and putting up the paper.”

In a criminal case in Indiana, the point was made before the Supreme Court that the indictment had not been filed in the Circuit Court from which the appeal was taken. The court in holding the objection untenable said: “ We understand a paper in a cause to be filed when it is delivered to the clerk and received by him to be kept with the papers in the cause,” and concluding that “ the statements sufficiently show that the indictment had been delivered to and received in his official capacity by the clerk of the Circuit Court,” the filing was held sufficient. Engleman vs. State, 2 Ind. 92; See also Covey vs. Noggle, 13 Barb. 329; State ex rel. Luling vs. Judge, 24 An. 333.

We conclude, therefore, that the plea of prescription was properly overruled.

Judgment affirmed.

Nicholls, 0. J., absent; ill.


text:
    No. 12,565.
    State ex rel. Perilloux vs. H. O. Wilder, Magistrate.
    when the court the proceedings of which are sought to be reviewed has juris--diction of the controversy and there is a remedy by appeal from its judgment," there is no basis for the writ of certiorari or prohibition. Article 90 of the Constitution; C. P., Arts. S45, 855, 857 ; 82 An. 1092; 39 An. 776; 34 An. 782.
    QN APPLICATION for Writs of Certiorari and Prohibition.

      H. L. Garland, Jr., for Relator.

      Stifft & Madison for Respondent.
    Submitted on briefs June 14, 1897.
    Opinion handed down June 25, 1897.
   'The opinion of the court was delivered by

Miller, J.

The relator, sued in the magistrate’s court for the violation of an ordinance of the town of Slidell prohibiting the retailing of spirituous liquors, seeks by writ of certiorari to restrain the court from enforcing its sentence of fine or imprisonment.

The exceptions of the relator in the suit in the magistrate’s court were substantially, that the ordinance imposing the fine or imprisonment for its violation was unconstitutional; that Act No. 8 of 1896, authorizing municipal corporations to punish violations of the ordinance by fine and imprisonment, is unconstitutional; that the town is not legally incorporated under the act of 1882, providing for the organization of municipal corporations, and this question had been determined adversely to the town in a previous litigation, the judgment in which is pleaded as res adjudicata, and finally that the court is not competent to decide civil cases. The lower court overruled these exceptions and imposed the fine.

We are not advised of the ground on which the competency of the lower court is assailed. The suit is for twenty-five dollars, the fine imposed, of which the magistrate’s court had jurisdiction. Constitution, Art. 125. If it is claimed there was no jurisdiction because of the alleged unconstitutionality of the act of 1882 for the formation of municipal corporations, in our opinion that act is in conformity with the organic law. Art. 46 of the Constitution; Act No. 49 of 1882: Chicago, St. Louis & New Orleans Railroad Company vs. Town of Kentwood, 49 An.

On these writs of certiorari and prohibition the jurisdiction of the courts the proceedings of which are sought to be reviewed, and whether the suitor has been deprived of legal rights by void proceedings are the prominent questions. If the jurisdiction exists and there has been no deprivation of legal rights by proceedings utterly void as the Code puts it, the litigant is left to the protection the law supposes the judgment of the competent court affords, or to the appeal if the law gives him. Constitution, Art. 90; C. P., Arts. 845, 855, 857. We find in this case the lower court had the jurisdiction. That carried the right to decide every question raised by the exceptions. The questions raised denying the legality or constitutionality of the ordinance or fine are susceptible of appeal to this court, but there is no warrant to issue the writs for supposed errors of determination to be corrected, if such errors there, are by the appeal. C. P., Art. 857; State ex rel. Weber vs. Skinner, 32 An. 1092; State ex rel. Broussard vs. Justice, 39 An. 776; State ex rel. Berthoud vs. Judge, 34 An. 782.

There is no basis for the application for these writs and it is ordered that our previous order herein be set aside and it is now adjudged and decreed that the application be denied at relator’s costs.