text:
    No. 10,814.
    State of Louisiana vs. Jack Willis.
    The defendant was charged, with burglary,under Seetion850of theltcvised Statute, “ whoever, with intent to kill, rob,” etc.
    The trial judge followed the language of the Statute in his charge to the jury.
    There was no necessity to charge that it was essential to find that the accused had acted with “ malice forethought ” in order to find him guilty.
    The jury were fully instructed with reference to the “ intent,” which must characterize the act, and there was no error in the judge’s refusal to charge as requested as to malice forethought: these words are not made essential by the Statute.
    The judge was also requested to specially instruct the jury with reference to drunkenness as a defence in a criminal ease.
    In his charge the jury was fully instructed on the subject; the special charge requested would not have added to the principle as explained. There was no substantial difference between the charge requested and that which was given.
    APPEAL from the First District Court for the Parish of Caddo. Hicks, J.

      W. H. Rogers, Attorney General, for the State and Appellee.

      J. W. Jones, for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

The defendant was indicted for burglary in the night time, with intent to kill and murder. He was found guilty without capital punishment, and prosecutes the appeal.

He alleges error of the trial judge in refusing to charge that the crime was committed with malice forethought.”

The defendant was charged with the crime of burglary under Section 850 of our Statute, viz: “Whoever, with intent to kill, rob, steal, commit rape or any other crime, shall in the night time break or enter, or having with such intent, entered in the night time, break a dwelling house, any person being lawfully therein, and such offender being at the time of such breaking or entering armed with a dangerous weapon, or arming himself in such house with a dangerous weapon, or committing an actual assault upon any person lawfully being in such houses, any person present aiding, assisting or consenting in such burglary, or accessory thereto before the fact by counseling, hiring or procuring such burglary to be committed, on conviction shall suffer death.”

The indictment charges that the accused “ did wilfully and feloniously with intent to kill, in the night time break and enter the house of Laura Collins,” and others named “being lawfully therein, and said Jack Willis being, at the time of such breaking and entering, armed with a dangerous weapon, did then and there wilfully and feloniously of his malice forethought make a murderous assault upon Laura Collins, Ed. Collins, Lucinda Willis, them to kill and murder.”

The defendant contends that to justify a verdict of guilty as charged in the indictment the specific intent to kill with malice forethought should have been charged, and that in the absence of malice forethought in case of killing, the offence could not have been murder, but manslaughter.

The trial judge, in his instructions to the jury, charged fully and clearly as to the intent necessary to constitute the offence and stated that the intent is the specific intent to kill any one of the parties named in the indictment.

The request to instruct as made to appear in the bill taken, had for purpose special instruction with reference to “malice forethought” and counsel for the defendant assumes that without this special charge the verdict is null.

The words “malice forethought,” used in the indictment, were not necessary, and therefore there was no necessity to charge that the accused to be found guilty acted with malice forethought.

It was only needful to charge the intent, and.this was done.

The Statute requires an actual assault, or an assault, in this case, with intent to kill, not an assault made with intent to murder.

The crime was charged in the words of the Statute or its equivalent. This was all that was necessary. State vs. Benjamin, 7 An. 47; State vs. Jerome Hick, 41 An. 83; State vs. Brady et als, 39 An. 688; State ex rel. Otis vs. Mouton, Judge, 42 An. 1160; 1 Whorton Crim. Law, 7 Ed., Section 402.

Three bills of exceptions were taken to the trial judge’s refusal to charge specially with reference to drunkenness as á defence in a criminal trial.

These bills are similar and differ only in language.

The purpose is the same and is expressed by the following, copied from the first reserved:

‘ ‘ The prisoner is not liable criminally as charged in the indictment, if at the time he was too drunk to know what he was doing, unless the specific intent to kill and murder with malice forethought is proven beyond a reasonable doubt.”

The doctrine of drunkenness as a defence was explained to the jury, and they were instructed that if at the -time the accused was so drunk as to be incapable of the intent charged he could not be found guilty; if he was drunk but had mind enough to comprehend what he was doing; if knowing right from wrong and contemplating and intending before hand and at the time to kill, as alleged in tne indictment, drunkenness is not an excuse.

If the act was voluntary, the volition sufficiently intelligent to show the intent, drunkenness is not available to disprove the intent.

So long as the offender is capable of conceiving a design, he will be presumed, in the absence of. the proof to the contrary, to have intended the natural consequence of his acts.

Under the instructions given, which were full, the jury determined his intent by all the facts and circumstances in evidence.

The last bill was taken to the refusal to charge the jury as follows, viz: “The proof must satisfy the jury that the intent was in fact the same which was charged in the indictment.”

The charge is specific with reference to intent.

We have already decided that malice forethought was not an ingredient of the crime. If a man intends to do what he is conscious the law denounces, there need be no other evil intent.

After a fair hearing, a jnry of the vicinage have found the defendant guilty. Specific intent and purpose needful to conviction were fully dwelt upon in the charge. The verdict, the sentence and judgment are legal.

The accused can receive no relief from this court.

Judgment affirmed.


source: Caselaw Access Project

author: Bermudez, O. J.

license: Public Domain

text:
    No. 10,656.
    Mina Ruthenberg vs. Henry Helberg et al.
    An appeal lies to the Supreme Court in a partition suit, the object oí which is to divide, or distribute a fund exceeding $2000, the lower limit of its jurisdiction.
    A judgment which passes upon all the issues presented by co-partitioners, so as to leave no further matter for determination, is not an interlocutory, but a final judgment.
    The fact that, after adjusting the difference of the parties, the court refers them back to the notary, with instructions to him to complete the partition, in accordance with the judicial findings, does not strip the judgment of its chacter of finality.

    TUe matters adjudicated upon could not be reexamined by the court without the consent of the parties concerned.
    The judgment has all the elements of a definitive judgment, and is rendered and signed as such judgments are required to be by law, and would constitute res judicata. It practically amounts to a judgment of homologation.
    In order to charge the community with a claim against it, the spouse must prove that he had the money as his separate property, whatever the source be from which it came, and that he actually invested it for the benefit of the community.
    In the absence of such proof, on a claim for reimbursement, judgment should not as a rule, conclude the claimant, who should be simply «on suited, with a reserve of rights.
    Ecos of counsel for services rendered in opening a succession, preparatory to a partition suit, may be charged to the proceeds of sale of commnity property.
    APPEAL from the District Court, Parish of Orleans. King, J.

      Aug. Bernau for Plaintiff and Appellant.

      J. E. Wallace for Defendants and Appellees.
   On Motion to Dismiss.

The opinion of the court was delivered by

Bermudez, O. J.

The motion rests on the ground of want of jurisdiction in this court.

1. Because the amount involved, or matter in dispute, does not exceed $2000.

2. Be cause the judgment appealed from is not a final but is an interloeutory judgment, the execution of which can cause no irreparable injury.

The suit is one in partition of property owned in common by the plaintiff and the defendants.

After issue joined, the court ordered the real estate to be sold and the movables to be delivered to one of the parties, on certain conditions.

It further directed a reference, after the sale, to a notary to effect a partition, with a reserve for the rights of the parties, which had not been at all passed upon.

The parties appeared before the notary, after the property had been sold, and discussed the manner in which the partition should be made; but they failed to agree on the subject.

The notary drew up an act setting forth the active mass and what appeared to be the passive; but as the appearers, the surviving husband and the two heirs, could not agree, the officer returned a statement or report of the circumstances to the court.

The parties then appeared in court setting forth their claims and counter claims.

After hearing them the court passed upon their complaint, referring the parties to a notary for the purpose of completing the partition according to the judgment rendered.

It is from this judgment that the appeal sought to be dismissed is taken.

I.

It is evident that the case is appealable. The real estate sold for $2875. To this item are added others, which swell it to $3421.40.

The fund to be distributed exceeding $2000, it is apparent, that, under the very term of the Oonstitution, defining the jurisdiction of this court, the case is appealable. Art. 81. Clearly, the judgment is one directing that such a fund be distributed in a particular way.

The aggregate of the claims of the parties to that fund exceed the lower limit of our jurisdiction.

This first ground, therefore, does not support the motion to dismiss.

II. ■

The next question to be considered, is whether the judgment rendered is a mere interlocutory decree, or a final judgment.

Interlocutory judgments are such as are pronounced on preliminary matters in the course of the proceedings, without deciding the merits; while final or definitive judgments are those which decide all the points in controversy, and which may acquire the force of res judicata. See O. P. 538, 539.

The District Court has passed upon all the issues presented by the litigants, so much so that there remains nothing else to be determined between them.

Really, there was no partition of the assets before the notary, who reported merely that the parties could not agree.

The duty of the court was to pass upon all their deferences, and it has done so in a manner which sets them at rest, so much so that Were the judgment thus rendered to remain undisturbed on appeal, it would constitute res judicata.

It is rendered and signed, as all final judgments are required to be, •u,nd is such that the court which rendered it would be incompetent 'to review without the formal consent of the parties concerned.

It has none of the characteristics of an interlocutory judgment or "decree.

It is true that, after determining what it does, it refers the parties -to the notary, who is directed to complete the partition according to the views of the court; but this is a mere formality, or ceremony, ■in furtherance of the finding of the court, apparently justified by O. P. Art. 1030; but in reality not so, as this provision refers to ■cases in which a partition was previously made before the notary.

The District Judge might as well have stated the manner in which partition should be made, and abstain from referring the parties .'again to the notary. '

Had he done so, the judgment would, without any dispute, have Teen on its face absolutely a final judgment. The fact of the reference does not strip it of that character.

Under the rulings in the case of Carry vs. Richardson, 35 An. 505, in which a germane matter was considered, and reference was made to authorities having an immediate bearing, particularly to the case of Woolfolk vs. Woolfolk, 30 An. 146, and others which were cited, drawing elaborately the lines of demarcation between interlocutory and final or definitive judgments, there can be no doubt that the judgment herein rendered and appealed from is a final judgment, which can be reversed by this court at the present stage of the pro.ceedings.

The ruling invoked in Marionneaux vs. Marionneaux, 28 An. 392, has no bearing.

The court there considered and dismissed two appeals taken, one from an order homologating the report of the [experts, and another directing the partition to be made in kind, referring the parties to a notary.

The judgment was not, as it in this case, one settling all the differences of the parties after a reference to the notary, in a manner which closes the door to any further contention, as to the mode in which the assets should be constituted and distributed, and one which practically homologates the partition.

It is therefore ordered that the motion to dismiss be denied.

On The Merits.

The plaintiff appeals from a judgment regulating the distribution of the proceeds of sale of the property, the partition of which she had sought.

The items contested on appeal are few.

The court properly disallowed the item of $90, as money borrowed from John McDonogh. It appears that the amount was loaned to the surviving husband after the death of the wife. It became the personal debt of the former. It is not chargeable to the community once existing between him and his deceased spouse.

The item of $40, claimed by Anna C. Ruthenberg for funeral expenses, was preved and properly allowed.

The amount borrowed from Mrs. Charlotte Bowman, $155, is shown to have been used for repairing the house which belonged to the community, and recognized by the husband who issued his note for it. It was therefore properly allowed.

In relation to the $800 which the husband claims to have inherited and to have invested in the community, by paying with it part of the purchase price of the property, we are satisfied, owing to the rejection of certain testimony, obtained under commission for want of proper authentication and to deficient proof in other respects, that it is established that the same was inherited, received and actually invested, as claimed by the surviving husband. As there was no adverse proof, judgment can not go against him, so as to deny him recovery; but should be rendered as in case of non-suit only; so that on proper show and evidence he may hereafter obtain adequate relief.

The item of $200 for attorney’s fees, for services rendered in the partition suit and not allowed below, is not pressed but is formally abandoned.

The claim for $150 attorney’s fees, for services in opening the succession, should not have been rejected entirely.

The succession had to be opened. The surviving husband failing, an heir had the right to do so, and therefore employ counsel. The services rendered were not important, and the succession was small; but they should be reasonbly remunerated. We think $50 a sufficient compensation.

There is no further disputed item to be considered here.

It is therefore ordered and decreed that the judgment appealed from be amended so as the allow $50 for attorney’s fees, and to disallow for the time being the sum of $800 and interest, claimed by the surviving husband, as in case of non-suit; with reserve of the right to claim and recover same hereafter on proper showing and proof, and that thus amended, said judgment be affirmed at appellee’s cost.


text:
    No. 10,732.
    Nicholas Arthurs vs. Gabriel Villeré, Sheriff Criminal Dis-Court, Parish of Orleans.
    The execution issued by the court which rendered the judgment, to enforce payment, can not be arrested by any other court at the instance of the defendant in tile suit.

    The latter must apply, in a proper ease, for relief, to the court which condemned him; and, eventually, may seek redress either by appeal, or by invoking the supervisory jurisdiction of the Supreme Court.
    The Civil District Court for the Parish of Orleans has no authority to enjoin the Sheriff of'the Criminal District Court for the same parish from executing a ft. fa., issued on a money judgment, rendered by the latter court in a criminal prosecution against a surety on a forfeited appearance bond. The injunction granted in limine was properly dissolved. »

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

      Harry L. Edwards for Plaintiff and Appellant:
    1. An exception of want of jurisdiction ratione materia, does not fit the ease, and is inapplicable to the issue. The points raised by the defendants could only be urged on an exception of want of jurisdiction ratione persona, or of no cause of action, or upon the merits.
    2. An injunction operates in personam. A criminal sheriff may be enjoined from doing a particular act to the injury of another, eyen though he may claim to be acting under a judgment of the Criminal Court. And in such a ease, the injunction can not be tortured into being directed to the court, when in fact it is addressed to a person, and in no sense a prohibition upon a legal tribunal. High on Inj., Sec. 44.

    3. Courts of equity will restrain by injunction judicial proceedings of courts of law, both before and after judgment. Id., Sees. 44, 57, 60.

      Henry Renshaw, Assistant City Attorney, and Carleton Hunt, City Attorney, for .Defendant and Appellee:
   The opinion of the court was delivered by

Bermudez, O. J.

This is an injunction suit.

Its object is to prevent the. sheriff of the Criminal District Court for the Parish of Orleans from executing, by seizure and sale of plaintiff’s property, a money judgment rendered by that court against him as surety on a forfeited appearance bond, furnished by him, in a case within the jurisdiction of said tribunal.

The injunction was sought and obtained ex parte, from the Oivil District Court of the Parish of Orleans.

The defence set up by the sheriff and the City of New Orleans, as beneficiary of the judgment, is, want of jurisdiction ratione materios.

The District Judge maintained the exception, dismissed the injunction and rejected the demand. The plaintiff appeals.

The fundamental allegations of the plaintiff are, that the sheriff of the Criminal District Court has illegally seized, in violation and without warrant of law, and is about to sell, the property of petitioner, to satisfy a pretended judgment of said court; that, if there be any law authorizing said sheriff so to act, the same is in violation of the State and Federal Constitutions, which prohibit a citizen from being deprived of his property without due process of law, etc.

The present is not plaintiff’s first appearance in this court to seek relief from the judgment again attacked.

Not long since he has tested by appeal the validity of said judgment, pressing, among other defences that the Criminal District Court which rendered it had no jurisdiction to forfeit the bond, and that the judgment to that effect was an absolute nullity.

This court, however, held the reverse, and affirmed the judgment complained of, State vs. Corning, 42 An. 417, the correctness of the ruling in that case being subsequently recognized. 42 An. 640, State vs. Doyle.

The only question now presented is, whether the Civil District Court had jurisdiction to arrest the execution of the writ issued by the Criminal District Court against the plaintiff, surety on the forfeited appearance bond, to recover from him the amount of the judgment.

However apparent may be the competency of the Criminal District Court to render judgments forfeiting appearance bonds, and condemning sureties therein to pay the amount thereof, and issuing writs to enforce payment, it is unnecessary, as plaintiff would have us to do, to express a formal opinion on the subject. It would be trenching on the merits, which can not be done, as the solitary question involved relates to the power of the Civil District Court to enjoin the sheriff, and practically the Criminal District Court itself, from executing the writ issued against the plaintiff here. The in*' quiry is, whether the injunction can be allowed by the Civil District Court. If this court has no jurisdiction to grant it, the cause alleged for it can not be inquired into, while if it has, the result is the same, as those merits do not come up here on an exception of no cause of action, none having been filed and actéd upon.

Looking therefore into the question of jurisdiction, we find that the law, for the purpose of avoiding conflicts of courts, and of securing public order and an harmonious administration of justice, has clearly positively provided on the subject.

It says, in emphatic terms, that the execution of a judgment belongs to the courts by which the cause has been tried. C. P. 617. And that it is for the courts which has rendered the judgment, to take cognizance of the manner of its execution. O. P. 629.

It has therefore become a principle, deeply imbedded in jurisprudence, that the execution of a judgment can be enjoined by no other court than that from which the writ was issued. 4 N. S. 490; 2 An. 323, 492; 4 An. 845; 5 An. 644; 13 An. 253; 16 An. 110; 18 An. 339, etc.; 39 An. 791, 182 ; 40 An. 2.

No doubt there exist exceptional eases in which an injunction may be granted by a court,r»of that which rendered the judgment about to be executed; but in none of those cases has the defendant in the suit ever been recognized the right to claim such relief from a forum, which was not that which exercised jurisdiction over him, and condemned him. He can not be sentenced by one jurisdiction and be absolved by another.

It is useless to enumerate those exceptional cases. It is enough to observe that injunctions in such instances have been allowed, as a rule, only to third parties, not connected With the suit and residing within the jurisdiction of the sister court issuing the process.

It is under that principle, as well asunder the provisions of Article 608 of the Code of Practice, that repeated adjudications have settled that the nullity of a judgment must be demanded exclusively to the court which rendered it. 8 N. S. 520; 1 L. 21; 12 L. 394; 14 L. 150; 5 R. 284; 7 R. 63; 1 An. 171; 2 An. 492; 10 An. 642: 15 An. 279, 27; 31 An. 100.

Practically, for the purpose of the present controversy, it is immaterial whether the Criminal District Court has or not jurisdiction to render the judgment of forfeiture and to enforce its execution.

If it had jurisdiction, surely the execution of the writ could not have been asserted by the Civil District Court which has a civil jurisdiction only, which is vested with no supervisory control over the Criminal District Court that rendered the judgment, and which, therefore, had no right to interpose its authority. 39 An. 132.

If the Criminal District Court had no jurisdiction, the complainant should have applied to it for redress, and, if he was entitled to relief and the same was denied him, he could not have been left without a remedy. He could have obtained such either by appealing, or in case of urgency, by invoking such conservatory measures as this court, under the Constitution, Art. 90, could allow.

It must be confessed, however, that it can not be perceived how, after the ruling in 42 An. 417, maintaining the jurisdiction of the Criminal District Court in the very litigation, the tenacious plaintiff can do otherwise now than to submit to its consequences.

It follows, from those considerations, that the Criminal District Court has the exclusive power of arresting its own pi'ocess, and that the Civil District Court in attempting to do so, has exceeded the bounds of its authority; but has correctly ruled in 'subsequently dissolving the injunction which it had issued.

The following authorities have a bearing on the question at stake and assist in its solution. Const. Art. 130, 140; C. P. 130, 877, 617; R. S. 1032, 1034; Act 141 of 1888, amending the last section; 39 An. 132.

Judgment affirmed.


author: Fenner, J.

text:
    No. 10,714.
    Fort Pitt National Bank vs. Joseph B. Williams.
    1. On general principles, attachment gives the creditor no higher or better right to the property attached than the debtor had at the time of the levy; it takes effect only on the debtor’s interest and does not per se affect the title.
    2. Semble, that Section 1192 U. S. Revised Statutes, touching the registry of titles to vessels, was designed only to protect persons who have dealt on the faith of the recorded title and as to whom itwould operate afraud to admit unrecorded titles to their detriment; it does not enable mere attaching creditors to oppose equities which are valid against their debtors. *
    8. The evidence shows that the true equitable title to the property attached was in the firm of L. O. Desforges & Co., and their syndic is entitled to it.
    APPEAL from the Civil'District Court for the Parish of Orleans. Monroe, J. '

      Farrar, Jonas & KrvMschnitt for Plaintiff and. Appellant:
    1. The petition of Jung, syndic of L. O. Desforges & Co., for the nullity of plaintiff’s judgment herein, shows no cause of action; and our exception to it should have been maintained. Plaintiff and defendant have done no act, and entered into no contract open to attack under the insolvent laws of this State.
    2. Under the laws of Pennsylvania, fully proved up by the admissions of the parties, every act done and every agreement made between pjaintifi and defendant were of unquestionable validity under the law of their common domicile, and are not open to any defence based upon the insolvent laws of the State of Louisiana.
    3. Revised Statutes of the United States, Section 1192, is in the following language: “ No bill of sale, mortgage, hypothecation, or conveyance of any vessel, or part of any vessel, of the United States, shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and any person having actual notice thereof, unless such bill of sale, mortgage, hypothecation, or conveyance is recorded in the olliee of the colleptor of the customs where such vessel is registered or enrolled. The lien by bottomry on any vessel, created during her voyage, by a loan of money or materials necessary to repair or enable her to prosecute her voyage, shall not, however, lose its priority, or be in any way affected by the provisions of this section.”

      The unmistakable meaning of this act was enforced by this court in Stark vs. Broom, 9 An. 69.
    Its constitutionality is maintained in White’s Bank vs. Smith, 7 Wallace, 646. We find no case questioning its clear and unambiguous terms.
    4. Upon the facts of this case, fully discussed by us, the firm of L. O. Desforges & Co. has no title whatsoever to any of the property under seizure.
    5. Joint ownership in a vessel by co-partners does not necessarily nor usually import co-partnership in the vessel. French vs. Price, 24 Pick. 18; Patterson vs. Chalmers, 7 B. Monroe, 795; Adams vs. Carroll, 85 Pa. State, 209; Nicholls vs. Mumford, 4 Johns. Chancery, 425.
    6. The assets of a partnership is susceptible of seizure for the debt of a co-partner. This is shown by the cases of Frost vs. White, 14 An. 140; Taylor vs. Kehlor, 28 An. 530; where the court held that an asset belonging to a foreign firm was liable to seizure for the debt of one of the foreign members at the suit of a domestic creditor.
    These cases establish the seizable character of the property. Au objection to such seizure is one purely personal to the co-partner who is not sued. If he does not object, no one else can.

      A fortiori is this the case where the foreign co-partner is himself bound for-the same debt, and where the seized property stands in the name of the seized debtor? The equity which alone would authorize such co-partner to interfere disappears, and he has no right to complain.
    Bayne, Denégre & Bayne for the Syndic of Desforges & Co., contra:

    Section 4192, R. S. of the United States, which is the Act of 1850, is a mere 'registry Act intended only to protect persons asserting an interest in or claim upon the vessel itself.
    Recording Acts relate to conflicting interests and liens, and are designed to regulate the same; they have no other purpose. Mott vs. Ruckman, 3 Blatchford, 74.
    It is well settled that registry, so far from being conclusive proof of title, is so little considered that it requires some auxiliary evidence in order to charge, as owner, the party in whose name the vessel is i’egistered.
    An equitable title to a vessel may be set up and maintained against an attaching creditor of the registered owner of the legal title thereof, notwithstanding the Act of Congress of 1850, now It. S. 4192.
    That Act deals alone with the legal’title and does not affect equitable titles. Its purpose was to protect persons dealing on the faith of the recorded instruments of title from being, injured by secret transfers or mortgages. It was for the benefit of such only, not for that of trespassers or those who could not be hurt by an unrecorded transfer.

      Frank N. Butler and W. S, Benedict on the same side:
    1. The 30. A. Burke, Maud McLain and Keystone were the property of L. O. Desforges & Co., and, as such, were not susceptible of seizure by any one claiming to be a creditor of a member of that firm. 3 An. 322; 10 An. 756; 13 An. 277.
    The confessions of judgment having been made by a member of the firm of L. O. Desforges & (Jo., within three months of the failure of that firm, with the intent unlawfully to favor the Fort Pitt Bank, and the Mechanics’ National Bank, to the prejudice of other creditors of said firm, were without'any legal effect, and must be declared null and void. R, S., Sec. 1808.

      3. The cessio bonorum of L. O. Desforges & Co., ipso facto, operated a dissolution of the attachments and seizures of the said banks of Pittsburg, and caused the property in controversy to pass to the creditors of said firm unaffected by such seizures; and gave the syndic the right to take immediate possession of the same. B. S., Sec. 1794; 11 La. 530; C. C., Art. 1969 (1964); 12 La. 109; 9 Bob. 32; 4 An. 490; 37 An. 595; 38 An. 439 to 445.
    4. The Port Pitt National Bank, of Pittsburg, and the Mechanics’ National Bank, of Pittsburg, foreign creditors, having contracted with L. O. Desforges & Co., .domiciled in Louisiana, whilst its insolvency laws were in for.ce, can not claim in the Louisiana State Courts an exemption from the operations of those laws; and an order of a State Court accepting a cessio bonorum and staying further proceedings against an insolvent, will arrest the action of such foreign as well as of home creditors.
   The opinion of the court was delivered by

Fenner, J.

The statement of this case, so far as essential for its decision, may be made in very brief and simple terms.

L. O. Desforges & Oo. was a commercial firm, engaged in the coal trade, and domiciled and doing business in the Oity of New Orleans, of which L. O. Desforges, of New Orleans, and Joseph B. Williams, of Pittsburg, Penn., were members.

In February, 1889, the plaintiff bank and.the Mechanics’ National Bank, of Pittsburg, held a large amount of the unmatured notes of L. O. Desforges & Oo., endorsed by the Grand Lake Goal Oo. Both the firm of Desforges & Co.', and the Grand Lake Coal Oo., had failed and gone to protest to the knowledge of the two banks just named.

In this state of facts, Williams executed his individual due-bills in favor of said banks, the sole consideration of which was his liability on the unmature firm notes held by them.

Upon these due-bills the banks immediately instituted attachment suits in the Civil District Court of New Orleans against Williams, under which they attached, as the property of Williams, the “ E. A. Burkes,” and the barges “Keystone” and'“Maud McLain.” Williams promptly entered a personal appearance and confessed judgment, upon which confession final judgment was entered with privilege on the property attached, execution was issued and the property was seized under writ of fieri facias on March 6, 1889.

On March 8, 1889, the firm of L. O. Desforges & Co., and L. O. Desforges individually, made a cession of property under the State insolvency laws, and filed its schedules, which embraced as assets of the firm the three vessels above mentioned. L. A. Jung was duly appointed provisional syndic in the insolvency, and immediately applied for and obtained from the court an order of sale of the vessels, which was proceeding to execution when enjoined by the banks.

Agreements were reached by which the sheriff sold all the vessels, and the proceeds were deposited in the judicial depositary to represent the property sold without prejudice to the rights of parties, which are to be the same upon the proceeds as they would have been upon the property if it stood unsold.

The sole contest is between the syndic and the banks as to the disposition of these proceeds.

We accept the statement of the counsel for the banks that the case hinges upon the question of title to the vessels, and his concession that if the vessels belong to the firm of L. O. Desforges & Go., and not to Williams individually, his case is lost.

It is conceded that the proceeds of sale of the “ Keystone ” were absorbed by admitted liens; so that we have only to consider the titles to the “Burke ” and the “ McLain.”

The “Burke” was purchased from the estate of James B. Eads, and the title stands recorded in the Customhouse in the names of O. L. Desforges and Joseph B.' Williams.

The title to the “ McLain ” stands recorded in the name of Joseph B. Williams.

The syndic claims that although the titles were so made both boats were really bought and paid for by the firm of O. L. Desforges & Go., and, with the full understanding of all parties that they were really the property of said firm. •

The banks object to any proof of these allegations on the ground that such equitable title, even if established, can have no effect against them, who are third persons unaffected with notice, and are bound only by the recorded title.

They rely upon Section 4192 of the United States Revised Statutes which provides:

“ Sec. 4192. No bill of sale, mortgage, hypothecation or conveyance of any vessel, or part of any vessel of the United States, shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof", unless such bill of sale, mortgage, hypothecation or conveyance is recorded in the office of the collector of the customs where such vessel is registered or enrolled.”

It is' not denied that, as between Williams and the firm, the latter could set and prove its equitable title although unrecorded, because Williams is necessarily affected with notice.

It is claimed, however, that, as attaching creditors, they have acquired rights superior to those of their debtor, and can maintain his title though he himself could not.

This is contrary to the general principles of attachment, which give to the attaching creditor no higher or better right than his debtor had to the .propex’ty attached. Oakey vs. R. R. Co., 13 La. 570; Hepp vs. Glover, 15 La. 461; Deloach vs. Jones, 18 La. 447; Frazier vs. Wilcox, 4 Rob. 517.

“It takes effect only on such interest as the debtor has in the property at the time of the levy, and does not per se affect the title at all.” 1st Am. Encyc. of Law, p. 930.

It is true that under the registry laws of Louisiana, an attacking creditor of the recorded owner of real estate will hold it against any outstanding unrecorded title; but that results from peculiar provisions of our laws.

It may be that a similar interpretation will be given to the statute of the United States regarding the registry of title to vessels; but we are cited to no decision of the Federal Courts going to that extent. On the other hand, we are referred to sundry decisions, Federal and State, which strongly intimate that the object and effect of the statute are simply to protect persons who have dealt on the faith of the recorded title, and as to whom it would be a fraud to give effect to unrecorded titles to their detriment. Richardson vs. Montgomery, 49 Pa. St. 203; White Bank vs. Smith, 7 Wall. 655; Morgan vs. Shinn, 15 Wall. 109; Mott vs. Buckman, 3 Blatch. 75; Bradley vs. Johnston, 41 Maine, 582. The question is not free from doubt, but we are not disposed to give to the statute the sovereign effecf claimed- for it. It is, however, a satisfaction to know that, if we have erred in our construction of this Federal statute, the means of correction lie open.

We therefore conclude that the evidence was properly admitted. As to the effect of the evidence, it establishes to our entire satisfaction, as’it did to that of the District- Judge, that the equitable title to these boats rested in the firm of L. O. Desforges & Co.; that they were bought for the firm use and for the firm account, and paid for with the firm funds; and the attempt of Williams to divert them to the benefit of particular creditors of the firm, under the transparent pretext of making them his individual creditors by giving his due bill for the unmatured debt due by his firm, and by such collusive attachment proceedings as followed, can not be countenanced.

Judgment affirmed.


text:
    No. 10,707.
    Theo. Brierre & Sons vs. Their Creditors.
    1. • An insolvency involving “a fund to be distributed” exceeding $2000 is a case within the jurisdiction of this court, which can not he divested by the action of the Syndic in filing successive accounts, each distributing a fractional part of . the fund-, though the particular amount so distributed do not exceed $2000.
    2. A person engaged under a contract to make sales of goods dealt in by a firm, in a particular state, with the agreement that ho shall receive one-lialf of the profits and bear one-lialf of the losses of the business done, is not a clerk, nor is his renumeration a salary, within the meaning of Art. 3191, Rev. C. C., granting a privilege in favor of “ the salaries of clerks, secretaries, and other persons of that kind.”
    3. The privilege or preference accorded to deposits by Art. 3222, Rev. C. C., applies only to the regular deposit as defined and regulated by Title Kill of the Code, and not to sums left on interest in the hands of another.
    APPEAL from the Civil District Court, Parish of Orleans. Voorhies, J.

      Moise & Titche and F. C. Zacharie for Opponent and Appellant:
    A travelling salesman paid by a certain portion of the profits realized on his sales is a salaried clerk.
    And as such is entitled to the privilege on tlie bankrupt estate as “ clerks, secretaries and other agents of that sort.” under R. C. 0., Arts. 3214, 3252, 3254. Codes Franeais Annotes, Teulet, D’Auvilliers et Sulpiey, page 669, Art. 2102, Nos. 33,34, 35, 36, 37, 38,46, 47, 48; Journal du Palais, Tom. 33, p. 256; lb. Tom. 47, p. 563; 11R. 139; 5D. p. 14; 3 An. 428 ; 7 An. 222; 8 An. 43; 35 An. 75; f Barnes & Aid. 663, 670; 1 Story, 371; Trombat Dim. Partn., p. 183, Sec. 241; 7 Chitty’s Com. Daw, 54; Montiefiore’s Prec. 16; lDenis,341; Harrison’s Dig. p. 866; 1 Montagu & McArthiir, 194; 4 Deac. & Chit., 520; 2 Mont. & Ayr, 29; 1 Mont. & Bligh, 417.

      L. DePooi-ter and E. D. LeBreton, for the Syndic, Appellee, cited;
    1. R. O. 0., 3214,1930; Weems vs. Delta Moss Co., 33 An. 973; Colley vs. Latourette, 7 An. 222.
    2. R. C. C. 2944, 3222, 2920, 2928,2924, 2940, et seq.; Louisiana Savings Bank in Liquidation, 40 An. 515; Matthew, Finlay & Co. vs. Their Creditors, 10 An. 342; Longbottom vs. Bahcock, 9 La. 50; Stetson & Co. vs. Gurney, 17 La. 162.
   The opinion of the court was delivered by

Fenner, J.

The appellee raises an objection to our jurisdiction ratione materise, on the ground that the appeal is taken from a judgment rendered on a provisional account filed by the syndic which involved only the distribution of a fund of $1021.23.

It is obvious that appellee mistakes the test of our jurisdiction in such matters. The test is not the amount actually distributed under a provisional account, but the amount of the fund to-be distributed in the case. The language of the constitution extends our jurisdiction “to all cases when the * * * fund to be distributed *■ * * shall exceed two thousand dollars exclusive of interest.” If this insolvency involves a fund to be distributed exceeding $2000, it is a case within our jurisdiction, which can not be defeated by "the action of the syndic in filing successive accounts, each distributing a fractional portion of the whole fund.

On the merits, the sole question presented is whether opponent, E. B. Levy, is entitled-to the privilege granted by law to “ the salaries of clerks, secretaries, and other persons of that kind.” Rev. C. C., Art. 3191.

Levy’s claim arises under a contract between him and the firm" of Bierre & Sons, entered into in 1885, of which the following is a sufficient synopsis:

Article 1. Engagement of Levy as travelling salesman for Texas, for three years, from May 1, 1885, to April 30, 1888.

Art. 2. Levy to give-his time and attention, and authorized to sell on samples furnished by Brierre & Sons with cost price stated, and his sales to be confirmed unless for sufficient reasons.

Art. 3. Levy to receive one-half of net profits realized, after deduction of expens.es. If the business results in loss, Levy to be held for one-half of said loss.

Art. 4. Levy to pay his own expenses and telegrams and brokerage on sales made by local brokers in Texas.

Art. 5. All telegrams necessary and incident to the business received by Brierre & Sons from local brokers or merchants of Texas, ordering directly to be charged to “Texas business” and to be deducted from profits before net result is declared, and to be chargeable against said “ joint Texas business.”

Art. 6 and 7 refer to a percentage to be retained from the share of Levy’s profits by Brierre & Sons, they paying him 8' per cent, per annum interest thereon.

Art. 8 provides that Brierre & Sons shall supply Levy with full line of samples, to be offered by Levy to acceptable buyers in Texas at his own expense, he endeavoring in all cases to procure the best obtainable prices and to effect sales for cash whenever possible.

Art. 9 provides for statements of each year’s business at the end thereof.

Art. 10. Allows Levy to handle, for his own account, other goods than sugar, molasses and rice.

Art. 11. Extends the operations of Levy to other States, in person or through agencies subject to the approval of T. Brierre & Sons.

It seems that, after a few months, Brierre & Sons failed to comply with their part of the contract, and Levy was compelled to abandon it. In 1887, Levy brought suit against Brierre & Sons, alleging their inexecution of the contract; that, if complied with, he would have earned $5000 a year, and praying for judgment at that rate from July 1, 1885, until May 1, 1888, the term of the contract. He recovered judgment for $4500; and this is the sum for which he claims a privilege.

The contract between Levy and Brierre & Sons is a peculiar one. Whether or not it created the relation of partners between the parties, as to third person at least, need not be here considered. .

It is very clear, in our opinion, that under such a contract, he was not such a salaried clerk as is contemplated by Art. 3191.

1. He was not a clerk. We have heretofore considered this subject and reached the conclusion, not without difficulty, that a travel-ling salesman, or as the French term it, a eommis-voyágeur, employed on a monthly salary, acting under the orders of his employer, and doing no business on his own account, was a clerk and exempt from license-tax under Article 206 of the Constitution. State vs. Chapman, 85 An. 75. A mere reading of the several opinions in that case will show that such an employment as that of Levy would be excluded from the category of ‘ ‘ clerks, secretaries or persons of that kind.” The business done by him was done as much on his own account as on that of Brierre & Sons. He controlled his own time, and was not subject to orders, being only required to devote his time and attention to the business, but in his own way. His relation to the business was quite as independent as that of Brierre & Sons.

2. The renumeration earned by him was not a salary, either jn the common understanding of that word or according to the definitions thereof, as given in the standard or legal dictionaries. We have, heretofore, considered this subject in the case of Weems vs. Delta Moss Co., 33 An. 973, and while not now affirming that decision in so far as it applies to the fixed monthly salary paid to the travelling salesman under the facts in that case; it is clearly correct as applicable to the commissions allowed on the sales, and is more than ample to cover the instant case.

There is a further claim for a privilege as to $250, which had been retained by Brierre & Sons out of Levy’s share of profits, under Articles 6 and 7 of the contract, which privilege is claimed on the ground that this was a deposit and privileged under Article 3222, A mere reading of the article, in connection with Title XIII of the Code on the subject of deposit, will show that the privilege or preference only applies to • the regular deposit, in which a person “ receives the property of another, binding himself to return it in kind.” Under the contract, Brierre & Sons retained this money and were bound to pay 8 per cent, interest on it. It has no feature of the priviledged deposit. In re La. Savings Bank, 40 An. 514; State ex rel. Girardy vs. Bank, 33 An. 957.

Judgment affirmed.


author: McEnery, J. Watkins, J. Watkins, J.

text:
    No. 10,677.
    Gustave A. Breaux vs. Domingo Negrotto, Jr.
    Notice to the delinquent tax payer is an essential prerequisite to a valid sale o£ his property for taxes.
    There is no law preventing the State from having property adjudicated to her at a ■ tax sale.
    Act 80 of 1888 is a curative and remedial statute, and is therefore constitutional. If it exceeds legislative power in some respects, it is to be confirmed so far as it does not violate the constitutional right of the property holder. Under eonstitional direction, it is discretionary with the Legislature to provide the time, and manner of notice, but it can not dispense with notice altogether. Act 80 of 1888 therefore does not cure the defect of the entire absence of notice.
    The rule in construing such statutes is, that the Legislature may malte the tax deed conclusive evidence of compliance with every requirement which the Legislature might, in the original exercise of its discretion, have dispensed with, and may validate retrospectively the proceedings which they might have authorized in advance.
    Where the plaintiff in a suit to annul a tax sale pleads the prescription of the tax, a tender is unnecessary. And also when the amount is indefinite and uncertain.
    In order to plead the prescription of three years in bar of the action to annul a tax sale under Section 5 of Act 105. of 1874, the defendant must be in possession of the property. When such possession is shown, it puts the original owner under notice of the necessity ol bringing his action, ancl if lie fails to bring it within the prescribed time, the bar of the statute applies.
    Whore property which is delinquent for taxes is ltept on the assessment rolls, and the tax for subsequent years is regularly assessed to the original owner and paid by him, it would be against justice and good conscience for the State, without notice to the owner, to sell the property and have it adjudicated to the State.
    In ease an appellee prays for a rule on the appellant to show cause why a decree should not issue, on the ground that the judgment and decree of this court has bocomefinal because appellant’s motion for a rehearing was unaccompanied by a printed statement of points and authorities on which same is'founded, in obedience to Rule IX of this court, it is a sufficient answer for the appellant, to state that, for a rehearing, he solely relied upon the points and authorities cited in his original briefs, on file, and upon printed briefs to be filed by an amicus auriui to whom an extension of time had been granted for that purpose. In answer to a rule filed by appellant’s counsel, pending the determination of the appellee’s rule, and his own application for a rehearing, it is a sufficient an swer-for the appellee, to state this relief is not appropriate at this time; that such an application must be made on the original hearing of the appeal in. this court; and that such a rule should have been thereon contradictorily taken, and not exporte as in this case.
    3. Having made an alteration in a previous decision, with which the opinion in, the instant case was manifestly in conflict, thus harmonizing the two, there is-no occasion for the allowance of a rehearing.
    APPEAL from the Oivil District Court for the Parish of Orleans.Monroe, J.

      Bayne, Denegre & Bayne for Plaintiff and Appellee:
    Tax sales are proceedings in invitum. The power of the tax collector is a naked statutory power, which is strictly construed. He lias only such power as the law confers, and no other. The statute is his only warrant to sell. Stafford rs, Twitehell, 33 An. 528; Workingmen’s Bank vs. Lannes, 30 An. 871; Cooley on Taxation, pp. 469 and 481; Burroughs on Taxation, p. 286, Sec. 112.
    A sale not preceded by advertisement in the exact manner and form, or for the full length of time prescribed bylaw, is radically defective. Renshaw, Cam-mack & Co. vs. Imboden, 31 An. 661; Person vs. O’Neal, 32 An. 228; Blackwell on Tax Titles, Section 430 et seq., 5th edition; Delogny vs. Smith, 3La. 418; Burroughs on Taxation, pp. 291, 292; Cooley, p. 482; Desty on Taxation, p. 832.
    Act 80 of 1888 requires that property sold thereunder should be advertised for thirty full days; advertising five times in thirty days-is not a compliance with the law, and.a sale preceded by such advertisement is void.
    A tax title should by recitals of fact show upon its face a compliance with the law. A tax title which contains mere general recitals and conclusions of law is not such as is contemplated by the statute, and not entitled to the character annexed by the law to deeds drawn up as the law requires.
    Act 80 of 1888 provides only for the sale of property belonging to the State; if the title to the State is void, it can make no valid transfer. Oil Works praying for monition, 34 An. 255; Garig vs. Bush & Levert, 35 An. 1109; Gibson vs. Hitchcock* An. 209; Denegre vs. Francez & Gerac, 35 An, 952.

      The State tax oí 1881 is null and void because wanting' in equality and uniformity as provided in Article'203 of the Constitution.
    The tax of 1881 was prescribed when the sale for that tax is said to have taken place, and the sale is, therefore, void.
    Act 11 oÍ 1880 governed the sale of property for taxes of 1881, and this act giving no authority to bid property in for the State, the tax collector had no authority to purchase in the name of the State, and the adjudication was therefore void 'The provisions of former laws permitting purchases by tax collectors in name of the State were all repealed in so far as the parish of Orleans is concerned by Act 95 of 1811, and the amendatory Act of 1878.
    Article 210 of the Constitution, and the laws passed in pursuance thereof, requiring personal notice to the owner other than by advertisement, the giving of such notice was an essential prerequisite to the sale to the State, which is void for want of such notice. Villey vs. Jarreau, 33 An. 296.
    The State having continued to assess property and collect taxes thereon after the sale to her, is estopped from claiming ownership, and so is her transferee. Clark vs. Hastings, 2 Curtis, 439.
    The law contemplates that the purchaser at a tax sale, as well as the State, shall take possession of property bought, and taking possession is intended as, and is, the only-notice afforded to the owner of the sale, and is therefore essential and can not be dispensed with.
    Prescription only begins to run from this taking of possession. Barrows vs. Wilson; McDougall vs. Molezun.
    Act 80 of 1888, in so far as it undertakes to cure and validate prior assessments and give a certain character to deed as evidence, is unconstitutional, no such object being expressed in the title.
    It is also unconstitutional in so far as it declares good and perfect titles absolutely void; this is a taking of property without due process of law, in contravention of the Fifth Amendment of the United States Constitution.
    The provisions of the Constitution (Article 210) that deeds made by tax collectors shall lie prima facie evidence is exclusive, and the legislature can not make such deeds conclusive.

      Charles F. Claiborne for Defendant and Appellant.

      Walter II. Rogers, Attorney General, and Wynne Rogers, as Amieus Curiae; and Moise & Titehe, as Amiei Curiae, on the same side.
   The opinion of the court was delivered by

McEnery, J.

This is a suit to annul a tax sale.

The tax-collector, in pursuance of Act 77 of 1880, and Act 96 of 1882, advertised for sale the following property for unpaid taxes of 1881, assessed in the name of Alexander Delhomme, and in the absence of any bidders according to the provisions of said Act No., 96 ■of 1882 it was adjudicated to the State:

Two lots of ground in the first district of the City of New Orleans, in the square bounded by Magazine, Race, Constance and Orange streets, adjoining each other and measure each 27 feet front on Magazine street by 125 feet in depth between parallel lines, according to a plan by Benjamin Buisson, surveyor.

On the 13th day of June, 1889, the property was adjudicated to the defendant, Negrotto, by the tax-collector, under Act 80 of 1888.

The plaintiff claims that the sale of his property as aforesaid was an absolute nullity for the following reasons:

1. The tax-collector could not sell to the defendant, Negrotto, without statutory warrant, and this statutory warrant, Act 80 of 1888, requires that the property be advertised thirty days, whereas the tax-collector only advertised it five times in thirty days.

That the advertisement for full thirty days was a condition precedent to the sale', was intended as notice to protect petitioner, and the attempt to sell his property without such advertisement, is a taking of his property without due process of law, in violation of the fifth amendment to the Constitution of the United States, the Statute providing that such advertisement shall be a full, complete notice to all persons and parties in any wise interested in said property, and no other notice shall be required, and the same shall operate as a complete citation to all.

That the act asssailed falsely recites that the property has been advertised thirty days, and is not such an act as is called for by law, containing general recitals and conclusions of law instead of recitals of fact, and is not entitled to the character annexed by the law of 1888, to such acts as are passed in compliance with its provisions. And the recitals in the act operate as a fraud upon petitioner’s rights.

2. That Act 80 of 1888, if constitutional, provides solely for the sale of property belonging to the State, and as the State has no title to petitioner’s property, it did not come within the purview of that act, and the tax-collector had no authority inlaw to sell.

3. The State had no title to petitioner’s property because:

(а) The tax of 1881 whs, and is null and void, because not equal and uniform as provided by Article 203 of the Constitution.

(б) That the tax of 1881 was prescribed at the time of the pretended adjudication to the State.

(c) Act 77 of 1880, which govern the assessments, levy and collection of the tax of 1881, as set forth in the act of sale to the State, did not authorize the tax-collector to purchase in the name of the State, and - therefore his act in so doing was without warrant in law and void.

(d) The Constitution and laws in force at the time required notice to the tax-payer before his property could be sold, and no notice was given, and therefore the tax-collector was without warrant in law to seize and sell.

(e) The law provides that property adjudicated to the State shall only be assessed for one year thereafter in the name of the owner, and must be assessed upon a separate roll. After that time it contemplates that the tax-collector shall take possession and collect revenues, thus providing a means of notice to the tax-payer that his property has been sold so as to allow him full opportunity to redeem. That nothing of the kind was done in this case, but the State exacted and collected taxes, and at all times treated and dealt with the property as that of petitioner, and was and is estopped to set up title in herself.

4. Act 80 of 1888 is unconstitutional in so far at least as it undertakes to cure prior assessments and deeds, and to give a certain character to deeds as evidence, because no such purpose is stated in its title, and because it is not in the power of the Legislature to validate deeds absolutely void, and transfer a man’s property to the State by legislative declaration, such law being obnoxious to the fifth amendment of the Constitution of the United States and to several articles of the Constitution of Louisiana.

5. Act 80 of 1888 in so far as it provides that deeds of sale thereunder shall be conclusive evidence is in conflict with Article 210 of the Constitution, which declares that tax deeds shall only be prima facie evidence.

The defendant filed exception of no cause of action, and want of tender of the price paid by Negrotto, and pleaded the prescription of three and five years.

These were overruled by the District Court.

Defendant answered, alleging the State’s purchase at tax sale in. 1884 of the property assessed to Delhomme, and the purchase by him on June 13, 1889, under Act 80 of 1888; that his title is perfect and prays for recognition thereof, and judgment for revenues, or in the alternative, for amount paid by him for his purchase at the tax sale, which was $110.

There was judgment for the plaintiff, and the defendant appealed.

The petition discloses a cause of action, and tÉe want of tender of the price paid by the defendant, Negrotto, has no application in this case.

The plaintiff in his petition denies that he owed the tax for which his.property was sold. He claims that the tax had been extingished by the prescription of three years. The artible of the Constitution requiring that “no sale of property for taxes shall be annulled for any formailty in the proceeding until the price paid, with 10 per cent, interest be tendered to the purchaser,” certainly does not intend that the party bringing the suit to annul the sale because of the non-existence of the tax, should be required to .do that which would defeat the object of the suit. A tender necessarily requires the existence of the tax. In this case also, the plaintiff was not certain to whom, and for what amount the tender should be made. If his plea of prescription is not maintained, and his other allegations as to the nullity of the proceedings should prevail, he certainly owes Negrotto nothing; but he owes to the State the amount of the tax only, assessed against him for the year 1881.

In the case of Guidry vs. Broussard, we said: “ If a tender was necessary it would have been difficult if not impossible to tell the precise sum that was to be tendered. To entitle a party to insist on a tender, the amount must in legal contemplation be made to appear definite and certain, so that the act to be done and the duty performed, if required, might be intelligently performed. We had occasion to pass upon this point in the case of Miller vs. Montague, 32 An. 1290, recently decided, in which we held that, under a state of facts relating to the want of certainty and confusion in assessment, and the consequent uncertainty in the amount, if any, to be tendered, similar to those here presented, that a tender was not necessary.” 32 An. p. 925. Stafford, Executor, vs. Twitchell, 33 An. p. 520.

Neither the State nor the defendant took possession of the propperty. It remained continuously in possession of the plaintiff and Delhomme, from whom the plaintiff purchased.

The rents and revenues were enjoyed by them. No demand or any attempt was ever made by the State to obtain possession of the property. On the contrary, it only remained in the possession of the plaintiff, but it was carried on the assessment rolls in the name of the plaintiff, assessed to him, and the taxes collected from him. There was no adverse possession which put the plaintiff under notice of the necessity of bringing his action, which failing to do within the prescribed time, the bar of the Statute would apply. Barrow vs. Wilson, 39 An. 409.

The taxed property was adjudicated to the State for the tax assessed against it in 1880, and ^in pursuance of Sections 49, 50, 51, 52 of Act 96 of 1882. The tax-collector’s deed shows that the advertisement and offerings were duly made within the time necessary to prevent prescription. The tax for 1881, therefore, had not prescribed when the property was adjudicated to the State, June 14, 1884.

If the adjudication was legal and valid, the time for redemption having passed, the divestiture of the title of the plaintiff was complete. He has no interest therefore in attacking Act 80 of 1888. It is immaterial to him in what manner the State disposes of her property.

In Martinez vs. State Tax-collector, 42 An. 677 (7 So. Reporter, 796), we said: “ Conceding that the taxes were extinguished by confusion when the State, in the absence of bidders, purchased the property at the sale under Act 96 of 1882, no reasons are urged or can be urged why the State, being the owner of the property, could not sell the same and fix the price and impose such conditions on the sale as she deemed fit and proper. There is no restriction- that can be placed upon the conditions which she may impose upon the sale of her property.”

In the same case we said: “ There is in the Constitution no prohibition on the State to purchase property either at private, public or tax sale.”

This ca.se disposes of both objections of plaintiff,' the attack on Act 80 of 1888, and the right of the State to purchase at tax sale.

The Act No. 80 of 1888 concerns the plaintiff only in its effects as a curative statute.

In the matter of Orloff Lake, 40 An. p. 142, and in re. Douglas, 41 An. 765 (6 So. Reporter, 675), we held that such statutes were constitutional, andm re Douglas, that, if they exceeded legislative power in some respects, they are to be enforced so far as they do not violate the constitutional right of the property holder, and restrained so far as they do.

Article 210 of the Constitution says * * * “ after giving notice to the delinquent in the manner to be provided by law (which shall not be by publication except in case of unknown owner), advertise for sale the property on which the taxes are due, in the manner provided for judicial sales, and on the day of the sale he shall sell such portion of the property as the debtor shall’point out.”

This article refers to sales of property for taxes, and can have no application to the property which the State .sells and to which she has title, whether acquired at tax sale or otherwise.

But if the State acquired no title to plaintiff’s property, because of radical defects in the tax proceeding, she would convey no title to the defendant under the sale made in pursuance of Act 80 of 1888. Guidry vs. Broussard, 32 An. 926; Gibson vs. Hitchcock, 37 An. 209; Baton Rouge Oil Works vs. Dundas, 34 An. 255; Denégre vs. Gerac, 35 An. 952; Gatlin vs. Hutchinson, 36 An. 350; Garic vs. Bush & Levert, 35 An. 1109.

The plaintiff alleges that no notice was served on him in pursuance of the constitutional provision, and Section 35 of Act 77 of 1880, Article 210 of the Constitution requires notice to be served on the delinquent tax payer, in the manner to be provided by law. Section 35 of Act 77 of 1880, provides that notice shall be left at the residence or place of business of the tax debtor and delinquent, or mailed to him by registered letter.

It is contended by defendant and the tax-collector that the marginal note on the assessment roll furnishes full and conclusive proof that the notice was served as directed by said section.

It is only prima facie evidence, and can be disproved in a judicial proceeding. This certificate of the tax-collector, however, applies only to unknown owners, who receive notice by publication, as provided for in Section 36 of the Act.

If the notice provided for in Sections 49 and 50 of Act 96 of 1882v applies to this case, the notice therein is by postal card, but there is no provision made for the evidence of its having been mailed, to be preserved by the certificate of the tax-collector. But we think the evidence is conclusive that no notice of any kind .was ever served on the plaintiff.

Under the Constitutional direction it was discretionary with the General Assembly to provide the mode and manner of the notice. But the Constitution having provided for the notice, it becomes an essential prerequisite to the sale of the property of the delinquent tax payer.

The tax deed to the State, in pursuance to the adjudication to her under the provisions of Act 96 of 1882, recites that the notice to the delinquent had been given in strict compliance with law. The deed is evidence .of a prima facie valid sale. Article 210 of the Constitution. It can be disproved as to the want of one of the essentials to a tax sale. These essentials have been enumerated in re Lake, and in re Douglas, heretofore referred to, and notice as required by the Constitution, may be added to them.

In re Lake we held that the provisions of Section 3 of Act 82 of 1884 “ necessarily imply that all the jurisdictional prerequisites have been complied with, and if in point of fact they have not, the tax title does not preclude an action of nullity based on non-compliance therewith.”

In re Douglas we said: “ Broadly stated, the doctrine is that the Legislature may make the tax deed conclusive evidence of compliance with every requirement which the Legislature might originally in the exercise of its discretion have dispensed with.” As stated by Judge Cooley: “ The general rule has often been declared that the Legislature may validate retrospectively, the proceedings which they might have authorized in advance.” Cooley on Taxation, 222.

Section 4,.of Act'of 1888, is similar to Section 3, of Act 82 of 1884. The Legislature, having discretionary power to provide the mode, manner and. time of notice, can, by remedial legislation, cure such defects as arise from defective service. But it can not dispense with notice altogether. Hence it can not by remedial legislation supply the absence of notice, which the Constitution requires shall be given to the delinquent tax-payer.

Tile Constitution, and Acts No. 77 of 1880, and No. 96 of 1882, re»quire a notice to be given' to the tax delinquent. No notice was given. It was an essential prerequisite to the sale of the property. As Act No. 80 of 1888 does not cure the want of'notice, and as a remedial statute does not apply to the case at bar, the law as stated in Stafford, Executor, vs. Twitchell, is directly applicable. In re Douglas, 41 An. 765 (6 So. Reporter, 675).

In that case this court said: “Amongst the conditions precedent to sell, those the object of which is to charge the taxpayer with notice, actual or constructive, of the proceeding, whether in the assessment or collection of taxes, are the ones universally regarded as mandatory, and of which the most punctillious performance is required. * * * Actual knowledge, however, clearly brought home to the tax payer, can not dispense with the necessity of such notices in conformity with law, and no consent to their waiver can in any case be implied.” 33 An. 529.

The property remained continuously in the. possession of the plaintiff, and he regularly paid the taxes on it. He has paid all taxes to date, Oity and State, with the exception of the tax due the State for the year 1881.,

The tax payer may have been induced to believe that his tax, for some reason known only to the officer, may have been deferred for collection, because of some fault in assessment, or for some other cause. Or he may have been confirmed in his impressions that he had paid it. The latter would seem to be the belief in. this ease, as the plaintiff had paid all of his taxes, and was under the impression, and believed that he had paid the tax of 1881,

Had the State taken possession of the property and collected the revenues within the year of redemption, the plaintiff, by the adverse' possession, would have been informed that his property had been expropriated for taxes. He would not have remained inactive, and permitted his rights to the property to have been imperilled. This is, at least, his testimony, when he says, had he received notice of the tax he would have promptly paid it.

It would be against justice and good conscience to allow the State to asert ownership under such a state of facts 34 An. 361; 28 An. 462.

There are some other reasons alleged by plaintiff why the tax sale . should be annulled. They are not of such importance as to require notice. •

Judgment affirmed.

Bermudez, C. J. concurs in the decree on the ground of want of notice. ■

Watkins, J., concurs for separate reasons.

Breaux, J., takes no part.

Concurring Opinion.

Watkins, J.

I rest my concurrence in the opinion herein rendered on the ground that the sale to the State was not preceded by the notice provided by Article 210 of the Constitution, regarding it as such an essential prerequisite for the exercise of the taxing power, as is specified in Orloff Lake, 40 An. 147, because there can be no “ statutory warrant” for a tax sale, which has not been- preceded by such notice.

This view is perfectly consonant with the opinion we expressed in the Douglas case, 42 An. 765. No statute or decision of this court could read that precept out of the organic law.

But, in as much as the defendant has interposed a plea of three years’ prescription, under the law of 1874, it is necessary that I should state my views precisely in regard to it.

In Smith vs. City, 43 An. post, we hold that this period of prescription commences to run from the date of the sale, as expressed in the statute of 1874. And we further expressed the opinion that in this particular .class of tax titles, possession by the State, other than that imported by the registry of her authentic title, was not required by the Statute of 1882, which capacitated her to become a purchaser; and possession by a purchaser at a tax sale, was not made an essential of this plea of prescription by the Act of 1874.

But the revenue law of 1886 does require that the State, as purchaser, shall take actual possession of property so purchased by her. Hence, I conclude that, in as much as the Legislature has seen fit to impose this additional restriction on the State, when she becomes a purchaser, the tax debtor, whose property she buys, has a right to require it of her; and that her failure to take possession can be urged against her or those holding under her, as an estoppel counteracting the bar of this Statute.

The present case differs from the Smith case in this, that the plaintiff • in that case purchased prior to the Act of 1886', and the plaintiff in this case purchased afterwards. On this statute the plaintiff had a perfect right to rely; and as the State had not taken possession of the property anterior to the plaintiff’s acquisition of a title to it from the tax debtor, the inchoate condition of the title of the State enables the plaintiff to employ it’ as an estoppel against her vendee’s plea of prescription.

This construction of the Act of 1874, is analogous to that we placed upon it in Surget vs. Newman, 42 An. 777, in which we said, substantially, that in applying the prescription Act 105 of 1874, to an action to invalidate a title to property purchased at tax sale, it is the province of this court to see to it that the sale was made under and by virtue of some law of this State, which authorized the sale proceeding.

In Barrow vs. Wilson, 39 An. 403 — the first adjudicated case in which this prescription was recognized and applied — we likened it to the prescription provided in R. O. O. 3543, against all informalities connected with, or growing out of, judicial or public sales. It is not, correctly speaking, the prescription acquirendi causa, one of the essentials of which is possession; but by the Act of 1886 possession has been made an essential condition to the acquisition of title by the State, and it must be so as to a plea of prescription in her behalf, or that of her vendee. This prescription runs not againt an action simply, but against an “action .to invalidate” titles acquired at tax sales.

Bermudez, O. J., concurs.

On Application for Rehearing, and Rule, Etc.

Watkins, J.

Our .opinion was handed down on Monday, December 15, 1890, and a written application for rehearing was filed by counsel of record for the defendants.

On the 9th of January, 1891, plaintiff’s counsel applied for a rule on the defendants to show cause, on a day designated, why a decree of this court should not issue, on the ground that same had become final, because the application for rehearing was unaccompanied by a printed statement of points and authorities on which same is founded; and because no extension of time to file same was applied for, as required by Rule IX of this court.

Contemporaneously therewith defendants filed a motion for a like rule on plaintiff to show cause why the cause should not be remanded to the lower court, with instructions to receive certain alleged newly discovered evidence material to their interest.-

As these are interlocutory proceedings which must be disposed of in advance of the main question, the granting vel non of the defendant’s application for a rehearing, we have thought it expedient to treat, and dispose of them seriatim.

I.

To plaintiff’s rule defendants original counsel answered that the reason he did not file a printed statement of points relied upon in his application for a rehearing, accompanied by a list of authorities, was that he relied for a rehearing exclusively upon points made, and authorities cited in his original printed briefs on file, and to which he merely referred, inviting the attention of the court to them in his application. That before the expiration of the legal delays for filing an application for a rehearing, time was granted by the court to an amicus curias to prepare and file a printed brief and argument in support of the application for rehearing he had already filed; and that said amicus curiae did prepare and file such a printed brief in this cause, on the 3rd of January, 1891. That defendant’s counsel conferred with said amicus curiae, on the day his application for time to print and file briefs was granted; and that they agreed upon the line of argument and authority the latter should therein pursue.

To this answer is appended the affidavits of counsel for the defendants, as well as of the amicus curiae, fully substantiating the statement in the aforesaid answer.

It seems to us that the spirit, if not the letter of the rule invoked, has been pursued.

Printed briefs are what the rule requires, and they were furnished and filed several days in advance of plaintiff’s rule to show cause.

They gave the court fullest details of the evidence and argument on which defendants relied, and nothing further was required or necessary. To hold otherwise would.be to make rules of convenience, unnecessarily harsh and oppressive. We are of opinion that our rules should receive a liberal construction, and so construing them, w.e think the defendant’s answer ample and justifies our refusal to make plaintiff’s rule absolute.

II.

' In so far as the-defendant’s motion to remand is concerned, we think it entirely out of time. While it is quite true that the judgment is not yet final,, and that'it is alw'ays within the power of the court, in appropriate cases, to remand causes for the purpose of enabling parties- to adduce new evidence, yet application for relief must be made on the original hearing of the cause, and come well supported by reasons justifying its allowance. Louisiana Ice Manufacturing Company vs. City of New Orleans, 43 An. —

But we are not aware of any precedent for such relief being granted on an ex parte showing made as a supplement to an application for a rehearing. Even if this right be conceded, and the materiality of the newly discovered evidence, also, the affidavits which are appended to the motion, make no averment of any diligence on the part of the defendants to obtain this evidence, which is alleged to have just been discovered.

' This evidence is said to consist of an exemplification from the tax records in the office of the Comptroller of the City of New Orleans, and certainly it was quite as accessible to defendants at the time of the trial in the District Court, as it would be on a second trial.

If we should adopt the rule suggested in defendant’s motion, in our opinion serious inconvenience, if not injury, would inevitably result. It would tend to the destruction of certainty in judicial proceedings, and to render litigation practically interminable.

We deem it to be our duty to hold all litigants to a‘just observance of due diligence.

The application to remand is without merit. It should not, properly, have been considered until after the application for a rehearing had been disposed of, but as we believed that it could not be allowed in any event, and as it was put as a preliminary proposition, we thought best to couple its consideration with that of plaintiff’s rule to show cause.

III.

Defendant’s application for a rehearing rests on four grounds, viz:

1. That our opinion is in error in holding that because plaintiff alleged that the tax for which the land was sold was at the time prescribed, there was no necessity for him to have made a previous tender of the price of adjudication.

. 2. That it was error to hold that there was no “ notice ” preceding the tax sale.

3. That it erroneously failed to pass on his reconventional demand.

4. That our opinion should have passed upon and sustained their plea of five years’ prescription.

It is unnecessary for us to enter into a detailed discussion of these points separately, or to present an elaborate. statement of our views in refusing the motion. It is sufficient for us to say that the provisions of Article 210 of the Constitution do not seem to contemplate a “previous legal tender” of the price of adjudication being made — such as is contemplated in C. P., 404, et seq., and R. C. C., 1933, et seq., and 1911,. et seq. — as a condition precedent to the institution of the suit for rescission of the sale. It declares: “No sale of property for taxes shall be annulled for any informality in the proceedings until the price paid, with 10 per'cent, interest, be tendered to the purchaser.” Const. Art. 210.

We think the tender may be made at any time prior to the rendition of final judgment decreeing the nullity of the sale; or the price may be adjusted and liquidated in the judgment. Certain it is that the constitutional mandate must be carried into effect, and the tax purchaser must be compensated, and the judgment annulling the sale can not be completed until that is done.

On inspection of the record we find that the defendants urged, amongst other exceptions, the prescription of three and five years; the former against the plaintiff’s action to annul a tax sale, and the latter against the alleged informalities in the sale, and especially against the want of notice required by the 210th Article of the Constitution.

In the application for rehearing the former is not insisted upon, but the latter is. ,

The authentic act of conveyance to the State, by the State Tax-collector of the property in question, bears date 17th of January, 1885, and this suit was filed on the 1st of May, 1890, more than five years having intervened between those two dates.

The provisions of R. C. C., 3543, are that “ all informalities connected with, or growing out of any public sale, made by any person authorized to sell at public auction, shall be prescribed against by those claiming under such sales, after the lapse of five years from the time of making it, whether against minors, married women, or interdicted persons.”

Defendant, Negrotto, Jr., acquired an authentic title to this property from the State, on the 19th of August, 1889, and it is these titles the plaintiff seeks to annul, and under which he, as defendant, claims.

He demands judgment recognizing him as owner, and putting him in possession of same thereunder.

It is perfectly clear that if this plea of five years’ prescription is applicable, it must be sustained.

In Person vs. O’Neal, 32 An. 237, our predecessors said this preeription was not applicable to such an informality in a tax sale, as the absence of the notice required by the Constitution, and which is the same notice under consideration in this case. But in Barrow vs. Wilson, 39 An. 410, that decision was overruled, and in so doing, we said: “We are also referred to the case of Person vs. O’Neal, 32 An. 237, where the court said, in commenting on the statute: Whatever defects in a tax sale may be cured by the lapse of three years, the want of personal notice to the owner, or his agent or curator, can not be, because such notice is a condition precedent to the seizure, without which there could be no sale.’ We are compelled to overrule this decision. It is in direct conflict with a former decision which held that even under Article 3543, C. C., want of such notice was a relative nullity cured by the lapse of five years.” Allen vs. Couret, 24 An. 24; Mulholland vs. Scott, 33 An. 1045.

There is no question of the fact that between our opinion in the' instant case, and that in Barrow vs. Wilson, there is a conflict which can not be reconciled; and it is, therefore, inevitable that one must yield. After a most careful and serious consideration, we have deliberately reached the conclusion that the views expressed in Barrow vs. Wilson ought to be modified so as to conform to the views expressed in the opinion now under consideration. In treating of, and applying the prescription of three and five years, in that case, this court recognized the decision as a departure from the theretofore settled course of judicial construction to the contrary, but deemed the application of the Act of 1874 an absolute necessity in order to give a quietus to the agitation of tax suits. Hence we were not, on the spur of the moment, prepared to consider all of its ultimate bearings and consequences. Indeed, in overruling Person vs. O’Neal, we were guided by a decision by our predecessor in Allen vs. Couret, 24 An. 24, and one of our own, subsequent in date, in Mulholland vs. 33 An. 1045; both of which justified our action in so doing. Not Scott, until this ease arose, was our attention attracted to the fact that the notice required as a condition precedent to the seizure of property of a delinquent tax payer was founded upon a constitutional requirement, the absence of which could not be considered as a relative nullity which may be cured by the prescription of three, or five years.

Hence our opinion in Barrow vs. Wilson was error, to the extent of holding that, in respect to this notice, the prescription of three and five years was tenable.

Making this concession and alteration will have the corresponding effect of reviving and giving force and effect to Person vs. O’Neal. This will align Barrow vs. Wilson with the principles announced In the matter of Orloff Lake, 40 An. 143, and In re Douglass, 41 An. 765. Having amended and altered our opinion in Barrow vs. Wilson so as to harmonize with the constitutional requirement with regard to notice to the tax payer, and with this opinion, the application for a rehearing must be overruled.

It is therefore ordered and decreed that the' judgment appealed from be so amended as to allow the defendant and appellant, Domingo Negretto, Jr., on his reconventional demand, the sum of $102, with the constitutional interest of 10 per centum from the 19th of August, 1889, and all costs of both courts; and that, as thus amended, our judgment remain undisturbed.

Rehearing refused.


author: Watkins, J.

text:
    No. 10,762.
    The State of Louisiana vs. John Casimere, Robert McNamara, Jr., and Maurice J. Hart.
    1. In case the contention is that a subsequent has impliedly repealed a provision of a former statute, a fair test is to consider the provisions of the two as fictitiously cumulated, and for the purposes of decision, treat them as one statute, and if they appear to be consistent and harmonious, there is no such appeal implied.
    2. It is well settled by judicial canons of construction that the law does not favor repeals by implication.
    Unless statutes are expressly recalled, or are absolutely destructive the one of another, they will stand and co-exist. Where they can be so construed as to harmonize for the accomplishment of the object to be attained, courts are powerless to annihilate either. ,
    APPEAL from the Twenty-sixth District Court for the Parish of Jefferson. Rost, J.

      W. II- Rogers, Attorney General, and Gervais Leche, District Attorney, and Jas. D. Séguin for the State, Appellant:
    I. When an act has but one essential object, and that is expressed clearly in its title; and when every clause of the Act relates exclusively to the mode of attainment of that one object; and when the sections of the Act are directly responsive to the title, and are germane and related to each other, the Act is in accord with Article 29 of the Constitution, and is constitutional and valid. State vs. Crowley, 83 An. 783; State vs. Carter, 33 An. 1215; Edwards vs. Police Jury, 39 An. 855;'Conery vs. Waterworks Co., 41 An. 924; Garvin vs. State, 13 Lea,(Term.)162.
    2. Such a title to such an act complies with the requirements of Constitutional law as to the precise statement of objects and prevention of hodge-podge legislation. Cooley on Const. Lim,, 143,144; Sedgwick on Stat. and Const. Law, 52; Bossier vs. Steele, 13 An. 433; Williams vs. Payson, 41 An. 7; State vs. Brown, 41 An 771; Conery vs. Waterworks Co., 41 An. 924.
    3. The restrictive provisions of Article 29 of the Constitution are to be construed liberally, and so as not to embarrass legislation. Potter’s Dwarris on Statutes, 105; Sedgwick on Stat. and Const. Law, 53; Cooley on Const. Lim. 145, 146; Succession of Lanzetti, 9 An. 333; Lafon vs. Dubrocq., 9 An. 350; Bei’gman, vs. R. R. Co., 1S. W. Reporter, (Mo.) 384.
    4. Act 144 of 1890 does not repeal Act 84 of 1884. The reference (to Section 3 of the latter Act) incorporated in Section 12 of the former, is therefore, not an attempt to revive and re-enact Section 3 of Act 84 of 1884, in violation of Article 30 of the Constitution.
    5. AVhere a later law merely makes reference by number and date for greater qertainly to a section of a prior law, which is still in force and has been recited at length in the enactment of said prior law, such reference only is not violative, of Article 31 of the Constitution.
    6. The constitutionality of an Act is to be presumed, its unconstitutionally never implied. Courts will give Statutes effect unless clearly unconstitutional. Cooley, on Const. Lim., 168, 182, 183; State vs. City, 41 An. 156; Conery vs. Waterworks Co., 41 An. 924.
    7. Section 12 of Act 144 of 1890 is constitutional, valid and effective.

      Lionel Adams and A. E. Billings'fox Defendants and Appellees:-
    Act 144 of the General Assembly of 1890 is violative of Articles 29,30, 31 and 48 of the Constitution.
    It violates Article 29, in that it embraces more than object. -
    It violates Article 30, in that it seeks to revise and amend Act 84 of 1884, by reference to the title of said Act.
    It violates Article 31, in thatlSection 12 thereof, is not recited at length, but is enacted by reference to Section 3 of Act 84 of 1884.
    It violates Article 48, in that it is a Ideal or special law, and does not bear evidence of publication of the rfotiee required by said Article.
   The opinion of the court was delivered by

Watkins, J.

The several defendants are charged in an information filed by the District Attorney — the last named in his capacity of general manager of the Louisiana Electric Light and Power Company; domiciled in the parish of Orleans, and the two first named in their respective capacities of employés of that corporation- — with having “wilfully, maliciously and feloniously cut a certain public levee of the State of Louisiana, kept and maintained under the authority thereof, and within a levee district of the same, and situated in the first ward of said State and Parish, in front of the town of McDonoughville; ” and it is further averred therein that the cutting of said levee was done “ without lawful permit or authorization of any kind, and in violation of Sectiofi No. 12 of Act 144, of the legislative session of 1890, approved July 10, 1890.”

To this information the said defendants tendered a demurrer, to the effect that the averments thereof, “ and the matters therein are, as therein alleged and set forth, not sufficient in law to compel them * * * to answer thereto. .* * * Wherefore they pray judgment, and that * * * they be dismissed and discharged.”

This demurrer was sustained, and the information quashed and set aside.

From the judgment rendered in the premises the State is appellant. From “the reasons for judgment” put on record by the trial judge, we make the’ following extracts as the most exact way of stating the case as he understood it.

That the defendants we.re indicted under the 12th section of Act 144 of 1890, which provides “ that no public levee of this State shall be cut for any purpose whatsoever, except for repairs, * * * and all persons who shall be guilty of so doing shall on conviction be subject to the penalties provided by Section 3 of Act 84 of 1884

“ Section 3 of Act 84 of 1884 * * * provides, among other things, that any person who shall cut any levee made and kept under the authority of the State, in violation of the provisions of this act, shall be deemed guilty of a crime against the State, and on conviction thereof * * * shall be punished by imprisonment with or without hard labor, for a term not exceeding five years, and not less than six months, and fined in a sum not exceeding $500.”

He then recites the clause of Section 14 of Act 144 of 1890, which repeals all laws or parts of laws in conflict therewith, and proceeds to say that “it is clear that the General Assembly repealed the act of 1884 where inconsistent with the act of 1890, and reSnacted the final clause forming a part of the act of 1884 by a simple reference to Section 3. • Article 30 of the Oonstitution expressly provides that no law shall be revived or amended by reference to its title, but in such cases the aet must be revived, or section as amended shall be reenacted and published at length.

“The accused in this case demur to the information, and, granted that Section 12 of Aet 144 of the Acts of 1890 has failed to reenact and publish at length section 3 of Act 84 of 1884, (the former) is null, unconstitutional and void.

“This section .is independent of the other provisions of the aet, and does not affect the validity of the law ” in other respects.

Evidently the judge sustained defendant’s demurrer and dismissed the information because Ke entertained the opinion that the act of 1890 was in conflict with similar provisions of the act of 1884, and therefore the latter was repealed; and the former not having, in. terms, reenacted, but by mere reference attempted to re&nact the penal clause of the act of 1884, same was unconstitutional on account of non-compliance with article 30 of the Constitution.

At least this appears to be the purport of his ruling, though there is nothing in the defendant’s demurrer to advise us of their complaint of the information. But for the reasons assigned by the judge there is nothing on the record to indicate that the unconstitutionality of the act of 1890 was the matter at issue. The demurrer merely states that the matters set out in the information are “ not sufficient in law to compel them to answer,” and therefore, their prayer is that “they be dismissed and discharged,” not that the information be quashed and set aside.

It seems to us that the proper ruling in the ease should have been for the judge to have declined to consider the constitutional questions that were discussed in argument, and to have overruled the demurrer on the ground that the averments of the information are ample and sufficient in law — the unconstitutionality of the statute under which it was found not being formally put at issue thereby.

But, as the District Judge gave consideration to the question of unconstitutionality of the law, and maintained the defendant’s demurrer on the ground that it was unconstitutional, we think it preferable to entertain the question also, and decide it rather than leave so grave a complaint of an important aet, open and undetermined.

A comparison of the judge’s reasons.with the provisions of the particular sections of the acts of 1884 and 1890, which are drawn in ■question here, discloses that his statement of them is correct; but ■ our opinion is that his deductions therefrom are incorrect.

The two statutes deal with the same subject matter, that is, the police management and control of the completed public levees; that of 1884 being general in its character, and that of 1890 exceptional only, or merely amandatory of the former.

The former provided for the investment of police juries with the management and control of such levees; requiring them to make laws for their preservation and protection; prohibiting their being cut except for purposes of repair or reconstruction, in certain defined particulars; and to prescribe punishment and penalties for violations of said provisions — the pains and penalties being as stated in the judge’s reasons.

The latter provides for the manner of placing pipes through the public levees for the purposes of irrigation, and otherwise; for the removal of existing rice flumes, and other conduits therefrom; and to prohibit the cutting of the public levees, and to punish any persons offending against this act.

Section 12 declares that “all persons who shall be guilty of so doing” — that is, of cutting the levees in contravention of that act— “ shall, on conviction be subject to the penalties provided for by section 3 of Act 84 of the General Assembly, approved July 10, 1884,” and Section 14 provides “ that all laws, or parts of laws, in conflict with or contrary to, or inconsistent,' with the provisions of this act, be and the same are hereby repealed.”

The important question is: Did the act of 1890 repeal, in terms or by implication, the act of 1884? To this question we feel con- • strained to make a negative reply.

The only question with which we are presently concerned is the penal clause of the act. In the act of 1890 no punishment is provided; but'the specific declaration is therein made that all persons who shall be guilty of any violation of its provisions, shall, on conviction “be subject to the penalties provided in section 3-of Act 84 -of 1884.” By the clearest possible inference, the provisions of the • act of 1884 on this subject were left in force, and are especially referred to and confirmed by the act of 1890. There was, evidently, no intention on the part of the General Assembly to repeal or modify in the slightest degree, the provisions of the act of 1884; nor did it do so, in substance or effect. The purpose of the act of 1890 was to amend the act of 1884 in certain particulars, leaving the penal clause of that act in full force and effect.

The'test — and a perfectly fair one we conceive — in matters of implied repeals, is to cumulate into one statute the provisions of the two Statutes, and for the purposes of decision, consider them together, and if, in such case they appear to be consistent and ' harmonious, there is no implied repeal of any of the provisions of the former by the latter law.

In State ex rel. Carcass vs. Judge, 32 An. 723, we have a clear and' very correct exposition of this view. We said in that ease:

Nothing is better settled than that the law does not favor repeals by implication. Statutes, unless expressly recalled or absolutely destructive the one of the other, will stand and coexist. When statutes * * * can be so construed as to be made to .harmonize and to prove ancillary the one to the other, for the accomplishment of the object intended, it would be wrong to annihilate either. The court would be powerless to do so.”

The act of 1884 is still in full force and effect in respect to punishments, and the amandatory act of 1890 did not repeal, modify or amend it in any particular. Hence, there was no occasion to reenact it — or rather to attempt its rebnactment. This would have been dual and fruitless legislation.

The judgment appealed from is erroneous and must be reversed.

It is therefore ordered, adjudged and decreed that the judgment of the court appealed from be annulled, avoided and reversed; and it is now ordered that the information be re-instated, and the cause remanded to the court a qua to be therein proceeded with according to law.