author: Blanchard, J.

text:
    No. 13,190.
    State ex rel. Samuel L. Gilmore vs. Hon. A. Brittin, Chairman, Etc.
    Syllabus.
    1. 'At the time of the adoption of the Constitution of 1898 the salary of the City Attorney of New Orleans was, under the Constitution and laws then in force, $3300 per annum. The present- Constitution,. in superseding that of 1879, declared that all officials then in office should hold their respective offices until their terms expired and should receive the compensation as fixed by tire Constitution and laws in force at the date of the supersession, except as otherwise provided in the new organic law.
    2. This can be given no other meaning than that the officials holding under the ' old Constitution should continue in office under the new during their respective terms and receive the salaries thereto attaching, and none other, to the end of their terms. This, of course, not applying to those officials coming within the exception “as herein otherwise provided” (Art. 323, 5th Clause.) whose salaries are established by the Constitution itself.
    3. One claiming an official salary greater than that which he has been receiving must point to the provision of law which, with certainty and beyond doubt, authorizes it. Otherwise the courts cannot sustain his demand.
    APPEAL from the Civil District Court for the Parish of Orleans. —Bilis, J.

      Carleton Hunt for Relator, Appellee.

      W. 8. Parlcersoh for Respondent and Appellant.

      Geo. W. Flynn for Intervenors, Appellants.
   The opinion of the court was delivered by

Blanchard, J.

The question presented is whether the annual .salary of the City Attorney of New Orleans is $3500 per .annum; or $6000 per annum.

Relator is the Oity Attorney. He was appointed to the office in September, 1896. His allegation is that he was appointed for the term of six years at $6000 per annum in accordance with Section 36 of Act No. 45 of the Acts of 1896.

He avers that it is the ministerial duty of the defendant as Chairman’ of the Finance Committee of the City Council, to certify to the correctness of the semimonthly pay-rolls of the City Attorney’s office for payment, that defendant refuses to perform that duty, and has notified relator, in writing, of his intention hereafter to decline to certify as being correct and due to him (relator) the semi-monthly salary of $250.

Representing that the law has not assigned adequate relief by the ordinary means, he invokes the writ of mandamus to redress the wrong of which he complains and to compel respondent to approve the pay-roll for his salary at the rate of $500 per month, or $6000 per year.

The rule nisi having issued, respondent, as showing cause why the writ should not be made peremptory, answered that relator is not entitled to the compensation claimed by him as City Attorney, that his salary as such under the Constitution and laws is $3500 only a year, and that instead of $250 semi-monthly salary demanded, he is entitled to only $145.83 semi-monthly, which amount respondent is willing to certify for payment.

, He avers that relator was appointed City Attorney under the provisions of Section 27 of Act No. 20 of the Acts of 1882, which fixes his salary at $3500 per annum, and that the Constitution of 1879, in force at the time of his appointment, prohibited by its Article 254 any salary in excess of that sum.

He represents that in so far as Section 36 of Act 45 of 1896 authorizes the payment of $6000 per year to the City Attorney, the same is unconstitutional and void as being in conflict with Article 254 of the Constitution of 1879 then in force.

Referring to Section 123 of Act 45 of 1896, which declares that: — • “Should the Constitutional restriction limiting the salary of municipal officers of New Orleans to thirty-five hundred dollars be not removed before this Act takes effect, then, and until such restriction be removed, the several officers under this charter whose salaries exceed such constitutional limit shall receive each the salary of thirty-five hundred dollars per annum; otherwise, and as soon as the same shall be removed, they shall receive the salaries herein mentioned,” respondent contends that the constitutional limitation referred to has never been removed, but has been rendered more binding and effective by the provisions of the Constitution of 1898, and cites,-in this connection, Sec. 5 of Art. 325 of that Constitution, which is as follows:

“All officers, executive, legislative, and judicial, State, parish or municipal, who may be in office at the adoption of this Constitution, or who might be elected or appointed before the election or appointment of their successors, as herein provided, shall hold their respective offices until their terms shall have expired, and until their successors are duly qualified, as provided in this Constitution, unless sooner removed, as may be provided by law; and shall receive the compensation now fixed by the Constitution and laws in force at the adoption of this Constitution, except as herein otherwise provided.”

He prayed that the writ of mandamus be denied.

Certain tax-payers of the City of New Orleans intervened, joining-respondent in resisting the demand of relator.

There was judgment in the court below sustaining relator’s view of the law and making- peremptory the writ of mandamus.

Respondent and the intervenors appeal. -

At the time relator became City Attorney the salary of that office could not, under the Constitution of 1819, exceed $3500 per annum. Art. 254.

Section 2'T of the former charter of the City (Act No. 20 of the Acts of 1882) fixed it at that sum.

By Act No. 45 of the Acts of 1896 a new charter was provided for the City, which superseded that of 1882.

The 36th section of this new charter undertook to name $6000 per annum as the salary the City Attorney provided for under that Act should receive.

But this was in the teeth of the Constitution then existing-, and void.

By another section (123), recognizing- the constitutional inhibition of any salary exceeding $3500 per annum, it was stipulated that all salaries named in the new charter exceeding that sum should, until the restrictions imposed by the Constitution be removed, be reduced to that sum. After removal of the restriction the salaries named for City officials in excess of $8500 should be paid.

It was entirely competent for the Legislature to thus enact, and had the Constitution of 1898, superseding that of 1879, contented itself with simply omitting to incorporate among its ordinances or provisions the prohibition as to any municipal salary exceeding $3500 per annum, the larger salary, or $6000 per annum, for the City Attorney, provided by the new charter, would have gone into effect at once upon the adoption of the Constitution of 1898.

But the schedule of the Constitution, Art. 325, in its fifth clause, declares that:—

“All officers, executive, legislative and judicial, State, parish, or municipal, who may be in office at the adoption of this Constitution * * * shall hold- their respective offices until their terms shall have expired, and until their successors are duly qualified, as provided by this Constitution, unless sooner removed, as may he provided by law; and shall receive the compensation now fixed by the Constitution and laws in force at the adoption of this Constitution, except as herein otherwise provided.”

This is a plain, precise declaration that the City Attorney of New Orleans, appointed to office in 1896 for a period of six years, unless sooner removed, shall hold his office until his term expires and shall receive the compensation fixed by ihe Constitution and laws in force at the adoption of the new Constitution.

It meant that the City Attorney was not to be disturbed in his office by the adoption of the new organic law, that he was to hold it through to the end of his term, and was to receive during that period the compensation permitted by the Constitution and fixed by the laws in force when the new Constitution superseded the old one.

Observe, he was not to receive the compensation fixed by the laws in force at the adoption of the new Constitution, but that fixed by the Constitution and laws in force at the time, etc.

Now, the salary “fixed” (in the sense of permitted) for his office by the Constitution of-1879 was an amount not exceeding $3500 per year, and there was no law, and could be no law, in force at the moment of the adoption of the Constitution of 1898 establishing it at a greater sum.

We have, therefore, the declaration of the organic law overruling' Section 123 of Act No. 45 of 1896 (new charter).

That section declared the City Attorney should receive $6000 per year whenever the constitutional inhibition of a greater municipal salary for any official than $3500 should be removed. The new .Constitution removed, the restriction by omitting- its inclusion among its ordinances, but at the same time distinctly averred its intention and uttered its command that neither the City Attorney, nor other ’municipal officer, nor State, nor parish officer, shall receive, during the'term of office for which he was elected or appointed, a compensation other than that he was entitled to receive under the provisions of the old Constitution, be it less or more, except as therein otherwise provided.

The City Attorney does not come within the exception. It was not “therein otherwise provided” that his compensation should be any greater or any less than it had been and was under the Constitution of 1879 and the laws in force when the latter Constitution was superseded by that of 1898. The statute “in force” at that date, fixing the salary of his office, was, clearly, that part of Section 123 of the Act of 1896 which reads: “the several officers under this charter whose salaries exceed said constitutional limit shall receive each the salary of thirty-five hundred dollars per annum.”

Down to the very moment of the adoption of the Constitution of 1898 (May 12, 1898) it was impossible for any other law fixing the salary at a greater sum to be in force, for it would have been flagrantly in violation of the Constitution of 1879, which did not cease to be the organic law until the instant the new Constitution took effect and superseded it. No space of time intervened between the Constitution of 1879 and that of 1898.

There was no “inter regnum”. The life of the one did not become extinct until the moment of the delivery — the birth of the other. There was, therefore, no instant of time when that portion of the Act of 1896 authorizing a $6000 per annum salary for the City Attorney could have come “in force” prior to the adoption of the Constitution of 1898.

It follows that the law “in force” as to his salary when that Constitution came in esse was the one, which, obeying the mandate of the Constitution of 1879, established its amount at $3500.

Neither, then, by the Constitution nor the laws in force at the adoption of the new Constitution was a greater salary than $3500 allowed to the City Attorney, and the later Constitution, in express terms, decreed the continuance of this salary throughout the term to which the present incumbent was appointed.

The Act 86 of 1898, which amends and re-enacts Section 36 of Act 45 of 1896, and again declares the City Attorney shall receive a salary of $6000, must he held as providing for the future — for the time subsequent to the expiration of the term of office now being filled by the present City Attorney. Otherwise — if held to relate to the present time, to the term of that office existing when the Constitution of 1898 went into effect — it would be clearly violative of that provision of the Constitution which announces that such municipal officers as the City Attorney shall receive during the remainder of their terms of office the salaries they were receiving under the old Constitution and the laws passed in pursuance thereof.

If the Legislature could, thus, increase the salary during the present term of the City Attorney, so could it reduce the salary. Suppose then, it had sought to reduce it under $3500 per annum, would not the provision of the Constitution of 1898 prevent such a reduction? Surely.

The Constitution does not say the officials in office at the time of its adoption should receive the compensation fixed by the laws in force at the time of adoption, or that fixed by laws enacted subsequent to adoption and before their term expired. If the framers of the Constitution had intended this they would have used language to convey that meaning, and then the Act 86 of 1898 would apply. But no, they confined themselves to saying that during the remainder of the term of such office they should receive the compensation fixed by the constitution and laws in force at the time of the adoption of the new Constitution. One claiming an official salary greater than that which he has been receiving must point to the provision of law which, with certainty and beyond doubt, authorizes it. Otherwise the courts cannot sustain his demand.

It is the court’s duty to enforce the laws of the State, fundamental and statutory, as we find them written, and while we are free to concede that the office of City Attorney of New Orleans, in rank and dignity, in duty and responsibility, is one of exalted trust, the arduous and difficult duties of which are discharged by the present incumbent with conspicuous ability and efficiency, we cannot permit considerations of this kind, however persuasive, to have determinative weight in the settlement of the question presented.

The judgment appealed from is reversed and it is now ordered and decreed that relator’s demand be rejected at his costs in both courts.

Os APPLICATION FOR REHEARING.

In the brief of counsel it is stated that by the terms of Act 55 of 1898 there is appropriated out of the general fund for salary of the Governor at the rate of $5000 per annum, and for salary of the Lieutenant Governor at the rate of $1500 per annum, whereas by the Constitution of 1819 the Governor’s salary is fixed at $4000 per annum and the compensation of the Lieutenant Governor at double that of a member of the General Assembly.

Then it is argued:

“Thus it appears, that notwithstanding the terms of paragraph five, Art. 325, Constitution of 1898, which says: That all officers, executive, legislative and judicial, State, parish or municipal, who may be in office at the time of the adoption of this Constitution shall receive the compensation now fixed by the .Constitution and laws in force at the adoption of this Constitution,’ the Governor and Lieutenant Governor in office at the time of the adoption of the Constitution, have had their respective salaries of office increased to the extent just set forth.

“Now, the increase in salary here referred to, of the Governor and Lieutenant Governor of the 'State, is undoubtedly supported in the present connection by the same argument on which relator’s case depends, and the action of the Legislature in relation to these high officers of the State, goes far to establish that it is error to hold that the Constitution of 1898 disabled the Legislature from increasing salaries.”

There would be force in this if counsel had not, in quoting paragraph 5 of Art. 325 of the Constitution of 1898, omitted, not deeming it relevant, what we consider a most material part of the paragraph — • one we not only deem relevant, but which we think changes the situation entirely and to the utter destruction of this contention.

He quotes from the Constitution that all officers, executive, legislative and judicial, “shall receive the compensation now fixed by the Constitution and laws in force at the adoption of this Constitution” and then stops short, whereas in the Constitution itself there is ap-ponded to this quotation, after a comma, .these words: — “except as herein otherwise provided." (Italics ours.)

Now, when wo come to examine other articles of the Constitution, it appears it is therein “otherwise provided” that the Governor shall have a salary of $5000 per annum from and after the adoption of the Constitution, instead of $4000, as per the old Constitution, and the Lieutenant Governor $1500 per annum, as against the smaller compensation allowed him by the former Constitution.

So it was that, when the General Assembly came to make appropriations for the salary of the Governor and Lieutenant Governor following- the adoption of the new Constitution, it obeyed the organic law and provided for those salaries as fixed in the Constitution.

But no where in the Constitution of 1898 is it “otherwise provided” that the City Attorney of New Orleans shall have and enjoy a salary greater than that fixed by the laws in force when the new Constitution superseded the old.

Accordingly, it very plainly appears that the cases of the Governor and the Lieutenant Governor stand on a basis entirely different from that of relator herein.

No sufficient reason for granting the rehearing sought appearing, the application therefor is denied.


source: Caselaw Access Project

author: BlaNci-iard, J.

license: Public Domain

text:
    No. 13,247.
    State of Louisiana vs. William Anderson.
    Syllabus.
    1. The Statute (Act 185 of 1898) floes not require that to be competent as a petit juror a person must be able to understand the English language. It Is, however, required that a grand juror must be able to read and write the English language.
    2. The Statute vests discretion in the trial judge to decide upon the competency of jurors in particular cases, and he may accept or excuse' a juror according as he may or may not find him competent to sit upon the trial of a case by reason of inability to understand the English tongue when read or spoken.
    3. Such discretion will not be disturbed except in a very clear ease of abuse.
    4. Objection that a juror does not believe in circumstantial evidence as having the force to justify either a conviction or acquittal, is properly overruled when it is not made to appear to the judge in some way that circumstantial evidence will have a material bearing on the case.

      APPEAL from tlie Eighteenth Judicial District Court for the Parish of Terrebonne. — Caillouet, J.

      M. J. Cunningham, Attorney General, and L. C. Moise, District Attorney, for Plaintiff and Appellee.

      C. W. DuRoy for Defendant and Appellant.
   The opinion of the court was delivered by

BlaNci-iard, J.

The accused, indicted for murder, was convicted of manslaughter, and sentenced to hard labor for the term of seven years. lie aijpeals.

There was no appearance in this court ón his behalf by way of oral argument, and his counsel has not favored us with a brief.

Two grounds of error alleged during the trial are presented in a bill of exceptions.

The first is that during the impaneling of the petit jury, while examining the jurors on their voir dire, the accused challenged the juror Desire Oallahan for cause, on the ground that he did not comprehend the English language sufficiently to be able to understand the testimony of witnesses, the argument of counsel and the charge of the court.

As to this, the trial judge, in his reasons embodied in the bill of exceptions for overruling the same, says that- from the examination of Oallahan he was of the opinion the objection was unfounded, that did understand the English language sufficiently well to serve as juror, and as a matter of fact had served on a jury the preceding day.

The qualifications required to serve as a juror in any of the courts of the State are set forth in Section 1 of Act No. 135 of the Acts of 1898.

It is not there stated specifically that to be competent as a petit juror a person must be able to understand the English tongue, though that qualification- — to be able to read and write the English language —is required of grand jurors.

To that section of the Act, however, is appended a proviso which recites that “judges of the District Courts shall have discretion to decide upon the competency of jurors in particular cases where from physical infirmity or from relationship or from ignorance of the English language and inability to understand the same when read or spoken, or other causes, the person may he, in the opinion of the judge, incompetent to sit upon the trial of any particular case.”

In view of this state of the law on the subject, the objection is frivolous.

The next ground urged is that Callahan declared on his voir dire he did not believe in circumstantial evidence and would not give force and effect to such evidence, whether to convict or acquit, in a criminal case.

As to this the trial judge says before ruling on the objection he requested counsel for defendant to inform the court what part circumstantial evidence would play in the case — this, in order that the court might be in a position to rule intelligently on the point — and that counsel refused to impart any information on the subject. Whereupon the court considering, from its knowledge of the case derived from the evidence taken at the coroner’s inquest, that the case did not depend on circumstantial evidence, overruled the objection. The judge further states that after excepting to this and the first ruling, counsel for the accused accepted the juror Callahan on the panel, though the accused had, at the time, used only two of his peremptory challenges, and still had unused three peremptory challenges when the panel was completed. And ho adds that “on the trial of the case there was no material point in issue depending on circumstantial evidence for its establishment.”

That this ruling was proper and is correct, is self-evident. •

Judgment affirmed.


author: Blanchard, J. Monroe, J.

text:
    No. 13,199.
    State of Louisiana ex rel. H. P. Hake vs. The Judge of the Fourth Judicial District Court.
    Syllabus.
    1. An owner in indivisión of timber lands has no right to cut and take timber therefrom without the consent of his co-owner, and if he attempt to do so, may be stopped by injunction, and such injunction is not one which may be dissolved on bond.
    2. where the trial court grants an order permitting such an injunction to be dissolved on bond, a suspensive appeal will lie, and in such case the amount of the suspensive appeal bond should be fixed by the judge.

      3. Ordinarily, a bond for a sum large enough to cover costs suffices in such case for a suspensive appeal bond, but a reasonable discretion as to this is vested in the trial court, subject to correction here, through the proper remedial writ, in case of abuse of such discretion.
    4. where, in such case, a devolutive and suspensive appeal is granted and the devolutive appeal bond is fixed at $100, the suspensive appeal bond “according to law”, it is considered that the suspensive appeal is perfected on the giving of a bond for an amount one-half over and above the sum named as sufficient to cover costs, or for $150.
    ^PPLICATION for Writs of Mandamus and Prohibition.

      E. J. Bowman for Relator.
    Respondent Judge pro se.

      W. G. Roberts and A. B. Hundley for Lea & Beal, Respondents.
   On the application for rehearing- by Monroe, J.

The opinion of the court was delivered by

Blanchard, J.

We gather from the record the following facts:— Relator and one Henry O’Neal owned in indivisión 760 acres of pine timber land in the parish of Grant. The land was assessed for taxes to relator and the said O’Neal. Taxes for the year 1895 were not paid, or else those on relator’s undivided interest were not paid, and a tax sale of the land, or of relator’s interest in same, was made in 1896. At this tax sale O’Neal purchased the interest of his co-owner.

Subsequently O’Neal died and at the probate sale of his property, S. R. Lee and W. 0. Beal purchased the land in question. That is to say, they acquired the undivided half interest of same which O’Neal had originally owned, and also the half interest which relator had originally owned, but which O’Neal had bought at tax sale prior to his death.

In 1898 relator instituted an action against Lee and Beal to recover the undivided half of the land he had owned in indivisión with O’Neal, and which the latter had acquired at tax sale. The suit was brought to set aside the tax sale and the subsequent title to that interest in the land claimed to have been acquired by Lee and Beal.

We have then an action by relator claiming ownership in indivi-sión of a half interest in the tract of land, and praying judgment accordingly.

While this action is pending, Lee and Beal go upon the land with a force of hands and commence cutting the timber. Whereupon, in October, 1898, the plaintiff in that case (relator herein) sued out á writ of injunction restraining the cutting and disposing of the timber.

Following this, in March, 1899, Lee and Beal took a rule to show cause why the injunction should not be dissolved on bond.

It seems that in his suit against them relator alleged the value of his interest in the land to be $1800. Subsequently, before trial of the rule to dissolve, he, by amended petition, averred its value to be $3500.

The rule was'tried and an order made or judgment entered dissolving the injunction on defendants (Lee and Beal) giving bond in the sum of $1800.

This ruling of the trial judge was erroneous.' An owner in indi-visión of timber lands has no right to cut the timber on such land without the consent of his co-owner, and if he attempt to do so, may be stopped by injunction, for the act is in the nature of a trespass, and such injunction is not one which may be dissolved on bond.

So, too, where one, claiming ownership in whole or in part of timber land, brings a tona fide suit to be decreed such owner, the defendant in such suit may not, during its pendency, cut the timber therefrom. lie should respect the existing status pending the suit. And if he seek to cut the timber, his hand may be stayed by injunction and the same should not be dissolved on bond.

Nor is this affected by the fact that in his injunction suit 'the claimant owner may assert the land, or the timber thereon, to be of such value — naming the amount. Such .allegation is .necessary to determine the proper jurisdiction on appeal.

In Dusan de la Croix vs. Villere, 11 La. Ann. 39, it was held that defendant could not bond an injunction which had issued to prevent him from cutting timber on land the ownership of which was claimed by plaintiff in a pending suit; that the destruction of forest and other trees came under the head of “irreparable injury”, and an injunction to restrain the same should not be set aside on bond under Art. 307 of the Code of Practice.

See also State ex rel. R. R. Co. vs. Judge, 23 La. Ann. 52; State vs. Judge, 12 La. Ann. 455; White and Trufant vs. Casenave, 14 La. Ann. 57; 22 La. Ann. 512; 24 La. Ann. 154.

From the erroneous ruling permitting the injunction to be dissolved' on bond, plaintiff in the suit (relator herein) applied by petition for a suspensive and devolutive appeal. Court had adjourned, but we find the application for suspensive appeal was timely. Appended to the petition for appeal was an order therefor. It reads as follows:

“The foregoing petition being considered, it is ordered that petitioner, II. P. I-Iake, be granted a devolutive'and suspensive appeal as prayed for, returnable to the Supreme Court of Louisiana at the term of said court to be holden in the city of New Orleans, on the second Monday of November, 1899, on his executing his bond in favor of W. L. Shackelford, Clerk of said District Court, for a devolutive appeal in the sum of One Hundred Dollars, for suspensive appeal according to law.”

There was no doubt of plaintiff’s right to appeal suspensively from the interlocutory judgment dissolving his injunction on bond.

And such judgment came within that class where, when appealed from, it was the duty of the judge to fix the amount of the suspensive appeal bond as well as that of devolutive appeal bond. 29 Ann. 289; 16 Ann. 371; 20 Ann. 108; 21 Ann. 43; 29 Ann. 776; 15 Ann. 333. It was not a judgment condemning plaintiff to pay a sum of money, nor to deliver up movables or other property of which he had the possession.

There was, therefore, no sum upon which could be predicated the amount of a suspensive appeal bond “according to law.”

When the injunction was sued out plaintiff was required to give a bond for such sum as the judge fixed, conditioned upon satisfying such judgment for damages as defendant might recover in case of the wrongful suing out of the injunction and injury resulting therefrom. This bond protected defendants.

When, afterwards, defendants obtained the decree to dissolve the injunction on bond, plaintiff could be condemned in such judgment for nothing beyond the costs of the proceedings leading up to such dissolution on bond, and, accordingly, would, ordinarily, it would seem, be entitled to a suspensive appeal on giving a bond sufficient for costs. The most that may be claimed to the contrary of this is, that a reasonable discretion was vested in the trial judge to fix the amount of the suspensive appeal bond in such case — his ruling being liable to review and correction here, through the proper remedial writ, if he fixed, it at an excessive sum, ox if, when, called upon in a proper case, he refused to fix it.

If, as in this case, the judge, having granted both a devolutive and suspensive appeal, fix the devolutive appeal bond at $100, and add that the suspensive appeal bond should be “according to law,” the meaning and legal effect to be given to such words, considering the character of the judgment appealed from, is that a bond one-half over and above the amount named as for costs will suffice for a suspensive appeal. The judge might in his discretion have named a reasonable sum as the amount of the suspensive appeal bond, subject to correction here, if excessive. But he chose to confine himself, in the matter of fixing the amount of tire appeal bonds, to a sum which he deemed sufficient to cover the costs (including those of appeal) of the proceeding to dissolve the injunction on bond, and then to say that the suspensive appeal bond shall be “according to law”.

As there was and could be no other judgment against plaintiff in such proceeding except for costs, and as the judge had, himself, fixed a probable amount as covering all such costs, the suspensive appeal bond to be given under such order was one-half over and above the amount the judge named as covering the costs. Accordingly, when plaintiff gave a bond, with proper surety, for $150, he must be held as having perfected his suspensive appeal from the judgment dissolving his injunction on bond.

In Stafford vs. Renshaw, 33 La. Ann. 444, the court went beyond this. There, it seems, the devolutive appeal bond was fixed at $250, the suspensive appeal bond “according to law”. It was held that the judgment, being one as to which, when appealed from, the article of the Code of Practice did not fix the amount of the suspensive appeal bond, the suspensive appeal applied for and granted was perfected when a bond for the amount fixed for costs was given. Said the court: “The lower judge fixed the amount of the bond, in case of a devolutive appeal, at $250, which could only be for costs. It virtually fixed the same amount for the bond in case'of a suspensive appeal.”

In State ex rel. Williamson vs. Judge, 30 La. Ann. 314, one Crosby took out executory process against certain property mortgaged by Williamson, and Hutson. Williamson enjoined the sale on the ground of the prescription of the debt. The injunction was dissolved without damages and Williamson applied for an order of appeal. A sus-pensjve, or devolutive, appeal, in the alternate, was allowed him. The bond for the devolutive appeal was fixed at $100, and that for the sus-pensive apiDeal at a sum one-half over and above the amount of the debt sued for. He refused to give either of these bonds and tendered one for $500 as a suspensive appeal bond. This was refused and he invoked the writ of mandamus to compel the judge to reduce to five hundred dollars the amount of the bond to be furnished by him for a suspensive appeal. The court said, in effect, that as the decree appealed from only condemned Williamson to pay costs, which, considering the amount of the bond fixed for a devolutive appeal, could not have exceeded one hundred dollars, and as the bond tendered was several times greater than that sum, it entitled the appellant to a sus-pensive appeal, and the mandamus was made x^eremptory. The syllabus of that case reads: “In a susjjensive appeal from a judgment dissolving an injunction without damages, the amount of the appeal bond need only exceed by one-half the costs, which the appellant was condemned by the judgment to pay.”

See also State ex rel. Durand vs. Parish Judge, 30 La. Ann. 232; Iiart vs. Lazarus, Judge, 34 La. Ann. 1210; Millaudon vs. Percy’s Syndic, 7 N. S. 352; Blanchin vs. Steamer Fashion, 10 La. Ann. 345; State ex rel. Hickey vs. Judge, 20 La. Ann. 108; Heath vs. Vaught, 16 L. 520; State ex rel. Gausson vs. Judge, 21 La. Ann. 43; State ex rel. Beebe vs. Judge, 23 La. Ann. 31.

The judge evidently contemplated that as defendants were required to give a bond for $1800 in order to dissolve the injunction, plaintiff should give a suspensive ax>peal bond for a sum one-half over and above the amount of the dissolving bond.

This was erroneous. The amount of the dissolving bond did not and could not serve to indicate the amount of a suspensive appeal bond to be given “according to law”.

The objection that citation of ax>peal was not seasonably served upon Lee & Beal so as to operate a suspensive ax)x>eal is without force. The appeal was seasonably taken and the appeal bond seasonably filed. The appellant is not to be held responsible for the failure of the clerk to timely issue the citation of appeal, nor the failure of the sheriff to timely serve the same, and if he were those officials (or the one delinquent) would be responsible to him on their official bonds.

Defendants, contending that plaintiff had taken only a devolutive appeal from the judgment permitting them to bond the injunction and that such appeal did not suspend the execution of the judgment, gave the required bond for $1800. This, they thought, had the effect of setting aside the injunction forbidding them from cutting timber on the land, and, accordingly, they resumed cutting.

This was irregular and erroneous.

Plaintiff claimed his bond was for a suspensive appeal. lie filed it as a suspensive appeal bond. It was not for defendants to judge for themselves that it was not a suspensive appeal bond. Their proper course was to take a' rule on plaintiff to test the question whether or not he had taken and perfected a suspensive appeal from the judgment dissolving the injunction on bond.

It was the province of the trial judge to pass upon this question, to determine whether the appeal is suspensive, or devolutive only. State ex rel. Gausson vs. Judge, 21 La. Ann. 43; State ex rel. Gill vs. Tissot, Judge, 34 La. Ann. 91; State ex rel. Ludwig Schwan vs. Allen, Judge, 51 La. Ann. 1889; State ex rel. Wm. Schwan vs. Allen, Judge, 51 La. Ann. 1892.

Defendants having resumed the cutting of timber, plaintiff (relator) took a rule as for contempt against them for disregarding the writ of injunction, and sued out a second injunction restraining the cutting of the timber.

Both those proceedings — the rule for contempt and the second application for injunction — proceeded upon the theory, on plaintiff’s part, that his appeal from the judgment dissolving the first injunction was a suspensive one.

Defendants filed a motion to dissolve the second injunction and trial was had upon this motion, as well as upon the rule for contempt.

Passing upon the question whether or not plaintiff’s appeal was suspensive the judge held it was not, and, so holding, he dismissed the rule as for contempt and dissolved the second injunction with $50 damages in favor of defendants.

Whereupon plaintiff applied for an appeal suspensive from these rulings.

The judge refused the same.

Then it was that plaintiff applied to this court for its writs of prohibition and mandamus.

On application for the writ of prohibition, under the circumstances •presented herein, the inquiry into the sufficiency of the appeal bond to entitle the appellant to a suspensive appeal is proper. State ex rel. Gausson vs. Judge, 21 La. Ann. 43.

Indeed, relator’s whole case rests upon whether or not his first appeal was suspensive. We have pointed out it must be so considered.

This being so, it follows there was error on part of the trial judge in dismissing the rule as for contempt, in dissolving the second injunction and in awarding judgment against plaintiff for damages for faking out the second injunction.

For the reasons assigned, it is ordered that the writ of mandamus be made peremptory, requiring and commanding respondent judge to enforce the first injunction-sued out by plaintiff in the suit of H. P. Hake vs. Lee & Beal, No. -, in the District Court, Parish of Grant, pending the suspensive appeal taken by said Hake from the judgment permitting said injunction to be dissolved on bond.

It is further ordered that the writ of prohibition be made peremptory, commanding respondent judge to permit no effect to be given, pending plaintiff’s said appeal, to the bond for $1800 filed by defendants in said cause as entitling them to dissolve said injunction, and commanding S. R. Lee and W. C. Beal to observe in full the requirements of the said writ of injunction pending said appeal.

It is further ordered that the writs of mandamus and prohibition be made peremptory to the end of requiring respondent Judge to grant the suspensive appeals applied for by relator from the judgment dismissing his rule for contempt against defendants Lee and Beal, and from the judgment dissolving with damages the second injunction sued out by relator against said defendants.

It is further ordered, etc., that costs of this proceeding be borne by the respondents.

ON Application for Rehearing.

Monroe, J.

Relator alleges, in substance, that he owned 760 acres of land in Grant parish, in common with Henry O’Neal, that said land was assessed in the name of ITake & O’Neal and was sold for taxes, and adjudicated to O’Neal, in 1896; that, at a probate sale, made in 1898, in the succession of the said.O’Neal, it was adjudicated to Lee & Beal, and that, in August, 1898, he sued Lee & Beal to recover his undivided half interest therein. Fie alleges that the value of the said land consists almost exclusively in the pine timber thereon, and that, after the institution of his said suit, to-wit: about Oc-fcober, 1898, Lee & Beal began to dispose of the timber, whereupon he obtained an injunction to restrain them from so doing. That, in March, 1899, Lee & Beal took a rule to have said injunction dissolved on bond, which application was resisted on the ground that such' dissolution would work an irreparable injury. The relator had alleged in his petition that his interest in the land was worth eighteen hundred dollars, but, before trial of said rule, amended his pleadings and alleged the value of said interest to be $8500. lie further alleges that judgment was rendered making said rule absolute, and authorizing defendant in injunction to dissolve the same upon giving bond in the sum of $1800. That said judgment was rendered about March 15, 1899, and the court adjourned March 17, 1899. That he applied for a devolutive and suspensive appeal therefrom returnable to the Supreme Court upon the second Monday in November, 1899, which was granted by the district judge upon his giving bond, for a devolu-tive appeal in the sum of $100, and for a suspensive appeal in a sum according to law; that he executed a bond in the sum of $150, for a suspensive appeal, which was largely in excess of the amount required, as the judgment was only for costs, and that said petition and order of appeal and bond were filed March 24, 1899, being within seven days of the date upon which the court adjourned.

He further represents, that notwithstanding the suspensive appeal thus taken and perfected, Lee & Beal continued to cut the timber on said land, and he, therefore, on May 1st, obtained an injunction to restrain them from so doing, pending said appeal, and also took a rule on them to show cause why they should not be punished for contempt for violating the injunction previously issued. That upon trial of said rule, the district judge held, that the appeal taken by relator was not suspensive; that a suspensive appeal would not lie from an order dissolving the injunction on bond; and that the bond given by defendants in injunction was sufficient to indemnify relator for any damages which might be sustained by him.

He further alleges that the validity of the suspensive appeal was not raised in the answer to the rule, and that in view of the order therefor, and of the filing and acceptance of the appeal bond, the district judge was divested of jurisdiction and control of the case, save for the purpose of testing the bond and surety; and that from any action rescinding the order granting the said suspensive appeal, he is entitled to a suspensive appeal, and upon refusal of the same, to mandamus and prohibition, and that, as matters stood, it was the duty of the district judge to enforce the injunction agreeably to the provisions of 0. P. 308 and Act N of 1896. He alleges that he applied for a suspensive appeal from the judgment dismissing the rule for. contempt, and refusing to enforce said injunction, and that the same was denied.

He further alleges that the second injunction sued out by him was dissolved on motion of the defendants upon the face of the papers with $50 damages, and that a suspensive appeal from said judgment was denied him, and that Lee & Beal are still cutting timber on the land in question; to his (relator’s) irreparable'injury.

He prays that a mandamus issue to compel the district judge to enforce the injunction issued by him against said Lee & Beal, and commanding him to grant a suspensive appeal from the judgment dismissing the rule to punish Lee & Beal for violating the same and refusing 'to enforce the same; and, also, commanding him to grant a suspensive appeal from the judgment dissolving the second injunction sued out by relator.

He further prays that the district judge be prohibited from rescinding or annulling the suspensive appeal taken by relator from his order dissolving the original injunction on bond.

And he further prays that Lee & Beal be commanded to respect said injunction, or to show cause to the contrary, etc.

Upon this petition, an order was made, directing the judge a quo to show cause why the writs should not issue as prayed for, and also, directing that notice be given to the parties in interest. This order appears to have had the effect of maintaining the status as it existed after the issuance of the first injunction, and prior to its dissolution on bond.

This, court, in passing upon this application, made peremptory the mandamus commanding the district judge to enforce the first injunction sued out by relator, pending the suspensive appeal taken by him, and commanding him to grant suspensive appeals from his judgments disoslving relator’s rule for contempt, and dissolving his second injunction with damages. And also made peremptory the writ ■prohibiting said judge from giving effect, pending the appeal, to his order dissolving relator’s injunction on bond, and commanding S. R. Lee and W. C. Beal to observe said injunction, pending said appeal.

In the course of the opinion, leading to this conclusion, it is said by the court, that the ruling of the trial judge in dissolving relator’s original injunction on bond was erroneous, for the reasons:

1. That an owner in indivisión may be restrained by his co-owner from cutting timber on the common property, and that an injunction in such case should not be dissolved on bond, for the reason, that the act enjoined is in the nature of a trespass.

2. That, where one claims ownership, and brings a 'bona fide suit to vindicate his title, the defendant should observe the status quo, and an injunction to maintain the same should not be dissolved on bond.

This seems, in effect, to decide the main, if no! the only, question which will be presented upon the appeal which is made returnable to this court upon the second Monday in November. We now think it was unnecessary, for the purpose of the present case, to so. decide at the present time.

The judge of the first instance is vested, primarily, with jurisdiction to determine whether the dissolution on bond of an injunction issued by him, will work an irreparable injury to the plaintiff by whom it is sued out, and if, in his opinion, such would be the effect, he ought not to dissolve it on bond.

Upon the other hand, if he thinks that the dissolution of the injunction will work no other injury, than such as may fairly be compensated in dollars and cents, it is his province to so hold and to grant the order to dissolve.

lie granted the order to dissolve and plaintiff asked for a devolu-tive and suspensive appeal. The judge made an order allowing both appeals, and plaintiff gave bond in accordance with the order.

We are of the opinion that, considering the order of appeal and bond,.as given, the appeal should be regarded as suspensive, but think that the question as to whether it was properly or improperly granted, need not be determined at this time, but may be left open for consideration when the appeal itself comes up.

With these modifications of the former opinion herein, the application for rehearing is denied.


author: Monroe, J.

text:
    No. 13,219.
    The State of Louisiana vs. John Cook.
    Syllabus.
    1. The change effected by Act No. 135 of 1808, whereby petit juries are selected from thirty jurors drawn from the general venire box, instead of being selected from thirty-four jurors so drawn, is a change in the mode of procedure which does not alter the situation to the disadvantage of a person tried under the Act of 1808 for a crime committed while the Act of 1800 was in force, and the operation of the Act of 1S98 is not, therefore, e® post facto.

    2. Ruling of the judge a quo refusing a continuance in- order to enable a defendant charged with murder to obtain the attendance of a witness to prove threats by the deceased, will not be reversed when it appears that there had been a mistrial from which the judge was in a position to know that the defendant would not, probably, be able to lay the foundation for the introduction of such evidence; when as a matter of fact such evidence was actually offered on the second trial and excluded because no foundation had been laid, and when in defendant’s motion for new trial it-is not claimed that the evidence of the absent witness could have been offered if he had been present.
    3. whether remarks made by a juror in the presence of other jurors and of the deputy sheriffs in charge whilst a case is being tried amount to such misconduct as would justify the setting aside of the verdict, depends upon whether the remarks, considering all the circumstances, were of a character to justify the conclusion that the juror was an unfit person to discharge the duty imposed on him.
    APPEAL from the District Court for the Parish of St. Tammany. Reid, J.

      M. J. Cunningham, Attorney General, and D. 8. -Kemp, District Attorney, for Plaintiff and Appellee.

      Paul W. Roussel, P. B. Carter and H. N. Gautier, for Defendant and Appellant.
   The opinion of the court was delivered by

Monroe, J.

Defendant appeals from a verdict and sentence, finding him guilty of murder, without capital punishment, and condemning' him to imprisonment, at hard labor, for life, and his counsel presents the following points to this court, to-wit:

i.

That he was indicted for a crime said to have been committed in September, 1896, and was arraigned and pleaded “not guilty,” January 27th, 1897; that, under the law as then existing, the names of fifty persons were to be drawn from the general venire, from among whom sixteen were required to be selected to serve as a grand jury, and from the remaining thirty-four the petit jurors were to be drawn. That he was not tried until May 15th, 1899, when, under the act of the General Assembly, No. 135, adopted in 1898, the petit jury was required to be made up from thirty jurors drawn from the general, venire. lie claims that he had a vested right to be tried by a jury drawn, or made up, from thirty-four jurors, and that the act of 1898, reducing the number, from which said jury was to be drawn, to thirty, is ex post facto in its operation, and is prejudicial to his rights. The question was presented to the court a qua in the form of a challenge to the array and a motion to quash, to the overruling of which a bill of exceptions was reserved.

The present Constitution, adopted in 1898, provides for the trial of certain crimes and offences without juries, and for the trial of others by juries composed of a smaller’ number than twelve, in these respects making a change in the constitutional and statute law.

Whether this change' was to be regarded as merely affecting the methods of procedure, or as affecting and divesting vested rights, in cases of crimes and offences committed before its adoption, was considered by this court in the matter of “State ex rel. Sherburne vs. Judge ” 50 Ann. 1247; where it was held that, in so far as the provisions of the Constitution of 1898 may be invoked as authorizing a trial, without a jury, of an offence which, when committed, was required to be tried by a jury, such provisions are ex post facto in their operation and can not be enforced. In this opinion, that of the Supreme Court of the United States in the matter of Thompson vs. Utah, 170 U. S. 343, is referred to, and the doctrine of the latter opinion is adopted. The opinion thus referred to, and accepted as correct, relates to a case where a person who had committed a felony in the territory of Utah at a time when the Constitution and laws of the United States entitled him, as the court holds, to a trial by a jury of twelve, was tried after Utah became a State and under a State Constitution and a statute law which provided for such trial by a less number than twelve.

The Supreme Court of the United States held that the crime having' been committed in a territory, the question of the rights of the accused, with respect to his trial, was to be determined by the Constitution and laws of the United States then and there in force; that, thereunder, he was entitled, when the crime was committed, to a trial by jury, and that a trial by jury meant a jury of twelve and, hence, that he could not lawfully be tried, under State laws, constitutional or statutory, subsequently enacted, which provided that he should be tried by a jury of less than twelve. The basis of this decision was that the jury'of twelve was the jury contemplated by the law under the dominion of which the crime was committed, and that to deprive the accused of the right to be tried by such a jury was to deprive him of a substantial and vested right and alter his position to his prejudice. The court, however, was particular to disclaim any intention of shaliing the established jurisprudence to the effect that a change in the manner of proceeding', after the commission of an offence, does not, necessarily, deprive the accused of any substantial right, and is competent legislation when no such deprivation results. The following is the language of the opinion on that subject, to-wit:

“It is not necessary to review the numerous cases in which courts have determined whether particular statutes come within the constitutional prohibition of ex post facto laws. It is sufficient now to say that a statute belongs to that class which, by its necessary operation, and £in its relation to the offence, or its consequences, alters the situation of the accused to his disadvantage.’ * * * It is well settled that the accused is not entitled of right to be tried in the exact mode, in all respects, that may be prescribed for the trial of criminal eases at the time of the commission of the offence charged against him. Cooley, in his treatise on Constitutional Limitations, * * says: ‘But so far as modes of procedure are concerned, a party has no more right, in a criminal than a civil action, to insist that his case shall be disposed of under the law in force when the act to be investigated is charged to have taken place. Remedies must always be under the control of the Legislature, and it would create endless confusion in legal proceedings, if every case was to be conducted only in accord with the rules of practice, and heard only by the courts in existence, when its facts arose. The Legislature may abolish courts and create new ones, and it may prescribe altogether different inodes of procedure, in its discretion, though it can not lawfully, we think, in so doing, dispense with any of those substantial protections with which the existing law surrounds the person accused of crime,’ ” etc.

The question in the present case, then, is whether the accused has been deprived of any substantial protection or' right, by reason of the fact that the twelve men constituting the jury by which he was tried, were selected from a list of thirty, drawn from the general venire, under Act No. 135 of 1898, rather than from a list of fifty, after sixteen have been withdrawn to serve as grand jurors, as provided under Act No. 99 of 1896. And this question, we think, should be answered in the negative. The substantial right of the accused to be tried by a jury of twelve is preserved. There is nothing to indicate or suggest, that twelve men, selected from thirty, whose names are drawn from the general venire, would not be, in all respects, as competent as twelve men selected from thirty-four similarly drawn. The change in the law merely relates to the manner of obtaining the jury, and it has been held, and may be regarded as well settled, that such a change affects the mode of procedure without affecting any right of the accused, or altering the situation to his disadvantage.

A. & E. Enc. of Law, Vol. 7, p. 531; State vs. Caldwell, 50th Ann. 669.

H.

The next point is presented by a bill of exception to the ruling of the judge a quo in refusing to continue the case in order to enable .the accused to procure the attendance of a witness to prove threats on the part of the deceased. The judge gives the following reasons for refusing the continuance, to-wit:

“The court overruled the motiop for a continuance, based on the absence of the witness EE. E. Burris, because the testimony of Burris, as set out in the application, would have been inadmissible. There had been a mistrial in the case, on account of the sickness of a juror. The court was familiar with the testimony and with the facts as developed on said previous trial, and thoroughly convinced of the inadmissibility of the testimony, and therefore declined to grant a continuance to secure the attendance of the witness. On the trial of the case, the defendant offered testimony of the same character as Burris’, which, on objection by the State, that the proper foundation had not been laid, was excluded by the court, in which ruling defendant acquiesced. The testimony showed deliberate preparation by the defendant, several hours in advance of the homicide, and that he declared his purpose, to run the deceased, to several persons, before he went out into the woods, where he knew the defendant (deceased) was at work, and took his life. There were no eye-witnesses to the homicide, but upon defendant’s own testimony, in connection with the physical facts, the homicide was a clear case of murder.”-

Under the settled jurisprudence, evidence of threats, in justification of homicide, is admissible only after proof of an overt act or hostile demonstration on the part of the deceased. State vs. Hickey, 50 Ann. 600; State vs. Wiggins, Ib. 330. The record in the case before us shows that it had been once so far tried, that the evidence had been offered, so that the district judge was in a position to know in advance of the second trial, whether it was likely to be within the power of the accused, upon such trial, to lay the foundation which he had been unable to lay upon the first trial. Being of the opinion that the accused would be unable to lay such foundation, and the application for continuance containing no averment to that effect, the continuance was properly refused. If, upon the second trial, it had appeared that the accused was in a position to prove some overt act, or hostile demonstration, by the deceased, and thus open the way for the introduction of the testimony of the absent witness, the matter could have been called to the attention of the court by motion for new trial, and thereafter presented to this court. No such claim is made, however. Upon the contrary it appears that such testimony as it is claimed the absent witness would have given, was offered on the second trial, and that the ruling of the court excluding it was acquiesced in; we, therefore, conclude that the discretion vested in the trial judge was properly exercised.

State vs. Cane & Hunter, 36th Ann. 53; State vs. Finn, 31st Ann. 408; State vs. Johnson, 36th Ann. 852; State vs. Hollier, 49th Ann. 371; State vs. Johnson, 47th Ann. 1227.

III.

The motion for new trial, to the overruling of which a bill of exception was reserved, is based upon grounds already considered, and upon the additional ground, that the defendant, as he alleges, has been prejudiced by the action of one of the jurors, who, while under injunction from the court forbidding- him or any other juror from commenting on the case in the presence of the deputy sheriff or other ¡person, persisted in commenting upon the evidence and in expressing an opinion adverse to the defendant, before the evidence had all been taken, and before the jury had received the charge from the court.

The evidence in the record does not sustain the averments con* tained in the motion. The facts appear to be that Tobe Summers, who was foreman of the jury, was a man of nervous, excitable, temper* ment, and, during the trial, when the court would take a recess, would, as the sheriff testifies, “be the first man to jump up and try to run out ahead of the other jurymen.” He was warned about this, and, as a matter of fact, was not allowed to separate himself from the other jurors.

It also appears that upon one occasion, during a recess, whilst in the presence of several of the jurors, and of the two deputy sheriffs, who had charge of the jury, he made some remark, which led to another member of the jury warning him “that they should not talk about anything; that they were not allowed to talk in front of the deputy sheriffs.” What the remark was, does not appear. The deputy sheriff,' who testifies concerning it, said, in answer to the question: “Can you remember any part of the remark, or the substance of it, made to the gentlemen?” “A. No, sir; some* thing about what a witness said, or was going to, or something like that.”

It also appears that, after the testimony had been taken, and the District Attorney had addressed the jury in opening, .,the court took a recess, during which Summers, in presence of the deputy sheriffs, in charge, and of the other jurors, said: “That damn man is guilty.” This fact is testified to by one of the deputies. Whether the remark was heard by the other deputy or by any one else is uncertain. The deputy who testified, said, upon the subject, i. e., as to whether the other jurors could have heard: “I suppose they could, but they wasn’t paying any attention to it.” He also says that he warned Summers to “hush,” and whilst the latter replied rather fiercely, he seems to have made no further remark. ■ ’

We find nothing in this to justify a reversal of the ruling of the judge a quo refusing the new trial. The fact that the juror was an excitable man, and, when the court took a recess, started out ahead of the other jurors, did not amount to a separation of the jury, because lie was stopped before the separation was effected. The remarks made by him were casual, and there was no such persistence as to indicate that the juror was incapable of appreciating his duties or responsibilities.

The particular remark which indicated an opinion as to the guilt or innocence of the accused, and, in fact, the only one which is given by the witnesses, was made after the jury had heard the entire evidence in the case, and the opening argument of the prosecution. Unquestionably it should have been left unmade, but the fact that it was made, does not, under the circumstances, lead to the conclusion that the juror was either an unfair, or an incompetent one, or that he had any undue bias or prejudice against the accused. The judge, in the bill of exceptions signed by him, says, concerning the averment in the motion for new trial, that the verdict was contrary to law and to the evidence: “If so, it was not to the defendant’s prejudice; the evidence would have justified an unqualified verdict, in the opinion of the court.”

For these reasons, it is ordered, adjudged and decreed that the judgment appealed from be affirmed.

Rehearing refused.