text:
    No. 331.
    The State of Louisiana vs. G. W. Taylor.
    It is sufficient for an indictment charging an attempt to bribe a witness in a criminal prosecution to be couched in the words of the statute denouncing- it.
    PPEAL from the Twelfth District Court, Parish of Grant. Wear, J,

      R. E. Milling and J. R. Land, District Attorneys, for the State, Appellee.

      M. E. Matohen for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

Appealing from sentence and judgmént of imprisonment in the penitentiary, upon conviction of the crime of attempting to bribe a witness in a criminal prosecution, the defendant relies upon three bills of exception.

I.

The first was taken to the trial judge’s refusal to quash the bill of indictment for an alleged insufficiency of averment.

The objection stated in the motion to quash is that the indictment is defective in that it does not set forth that the witness whom the accused attempted to bribe was either a material or competent witness in the matter of the prosecution of the charge named therein. The charge of the indictment complained of is that the accused attempted “ to bribe a witness, to-wit: J. T. Collins, from appearing and testifying as a witness on behalf of the State, in a certain criminal cause depending before the court,” etc.

The language employed is that of the statute (R. S., Sec. 880) and it is settled jurisprudence that that is sufficient — the crime charged being a statutory offence.

II.

The next objection tendered is that the judge improperly rejected and disallowed certain testimony tending to impeach the evidence of a witness for the State. The record discloses a disparity of statements on the part of the judge and counsel of the accused, in respect to whethér a proper basis had been laid for the introduction of same — the former denying and the latter affirming that such basis had been established with sufficient certainty.

Following the authority of repeated decisions to that effect, we hold that the statement of the judge is of superior weight and more authoritative, and must control our decision; and, so holding, we must decide that the proffered testimony was properly rejected.

III.

The third bill mates complaint of the circumstance that at a previous term of the District Court — -nearly twelve months prior to the final trial of the cause — the prosecuting attorney insisting upon a trial, and defendant’s counsel objecting, because the sheriff had made no return upon a summons which had been issued for the appearance of one of his witnesses, and that the judge ruled that his objection was not well taken. It can not be perceived what connection that matter has with the case, as it was finally tried. It is utterly frivolous.

There is no merit in the appeal.

Judgment affirmed.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 339.
    The State of Louisiana vs. L. A. Craighead et al.
    Proper showing being made to this court that the accused has broken jail and become a fugitive from justice, since the order of appeal was granted, the appeal will be dismissed.
    APPEAL from the Second District Court, Parish of Bienville. Watkins, J.

      A. J. Murff and J. B. Land, District Attorneys, and Drew & Stewart for the State, Appellee.

      Edward & Egan & Son for Defendants and Appellants.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Watkins, J.

The district attorney prosecuting this cause has filed a motion to dismiss this appeal on the ground that, since it was taken, the accused' has broken jail and escaped from the custody of the sheriff and is a refugee and a fugitive from justice.

This motion is supported by an affidavit averring the truthfulness of the allegations of the motion.

It was recently said by this court, in Porter’s case, 41 An. 402, that tliis court has uo mercy to extend to one who has voluntarily placed himself beyond the law, and, however much it may lend a willing ear to the request and assurance of counsel, it would fail in its duty to compromise with jail-breaking and convicted felons. It is now settled that a prisoner under conviction and sentence who escapes from custody during the pendency of his appeal can not, by counsel, prosecute his appeal, and forfeits all rights to be heard on the same. State vs. Wright, 32 An. 1017; State vs. Edwards, 36 An. 863; State vs. Mansfield, 38 An. 563.”

We are of opinion that the defendant’s appeal should be dismissed, and it is so ordered.


author: MoEnhrv, J.

text:
    No. 324.
    The State of Louisiana vs. Buck Casey.
    Whore a witness is asked to designate a period of rime between certain events, it is a fact sought by the questioner and not the opinion of the witness.
    Hypothetical questions propounded toa juror, such as his opinion on the race problem, his belief in the superiority of the white race, that negroes ought to be tried by white jurors, are irrelevant, and the answer of the witness can not affect his qualification as a juror. The test of his qualification in this particular is whether or not he has any prejudice against the defendant, and not whether he is prejudiced against his race on account of the belief he entertains of the superiority of his own race.
    The‘defendant can not complain because a list of jurors for another week is served on him with the list of jurors who are to pass on his case.
    There is no law in the State requiring that the accused shall be tried by jurors selected from among his own race.
    Where there is no defect on the face of the record a motion to arrest judgment will not be sustained. *
    It is not necessary for a juror’s competency that he should be a scholar. It is sufficient if he can understand the witnesses and the argument of counsel. The intelligence of the juror is a matter to be determined in the sound discretion of the trial judge.
    It is no ground for a new trial because a witness was intoxicated and in no condition to be placed upon the stand.
    When the statement of facts, prepared by request of ^defendant’s counsel, by the trial judge, shows that the newly discovered evidence is unimportant and could not affect the result, his ruling in refusing a new trial will be sustained

      :om the Ninth District Court, Parish of Red River.

      J. B. Lee and J. R. Land, District Attorneys, for the State, Appellee.

      J. G. Egan & Son for Defendant and Appellant.
   The opinion of the court was delivered by

MoEnhrv, J.

Buck Oasey, the defendant, a negro, was tried, convicted, and sentenced for committing the crime of manslaughter. He appealed.

There are six bills of exceptions upon which the defendant relies for a reversal of the judgment.

No. 1 — A witness for the State testified that he heard a conversation between deceased and defendant, in which the deceased said: “Stop, let’s shoot it out.” The district attorney asked the witness the following question: “How long was it from the time deceased said ‘Stop, let’s shoot it out?’ ” which was objected to by defendant as calling for an expression of opinion from the witness. The objection was very properly overruled, as the question did not call for an opinion,-but a fact, a definite period of time.

Bill No. 2 — The defendant complains of the ruling of the trial judge in forcing him to trial without legal service of indictment and venire. The court convened September 5, 1892, with a jury of fifty for the first week, and of thirty for the second week, beginning on Monday, September 12. A grand jury was impaneled on the 5th of September out of the panel of fifty.

September 8 the defendant was arraigned and his case fixed for trial on the 14th of September, the second week of the term. The jury list and indictment served on the prisoner two entire days before the trial showed the jurors drawn for both the first and second weeks.

There were two separate lists, each headed with the names of the jurors drawn for the first and second weeks respectively. The accused has no cause to complain because the list of jurors on a separate list for the first week was served on him.

His trial was fixed for the 14th of September, the second week of the term, and the list of jurors for this week, who were to pass on his ease, was served on him two clear days before the trial. 31 An. 897.

Bills 3, 4 and 6 may be considered together.

The jurors answered on their voir dire that they thought a white jury more competent to give the prisoner justice than a negro jury, andjthat it was their opinion that|the country would be better off with - out the negro; that the colonization of the negro was desirable.-

In bill 4 it appears that the juror stated he had race prejudices, and that he thought the negro ought to be tried by a white jury.

These questions were all hypothetical and had no relation whatever to the case on trial. The jurors did not say that they had any prejudice against the accused, or that they could not give him a fair trial.

Race prejudice exists everywhere among all nations, who favor their own race and believe it is the favored and cherished race of the world. No man, because bethinks his own race superior to another, is disqualified as a juror on this account, particularly as in this case the difficulty was between two of the same race. As between them, the juror, notwithstanding his opinion of superiority of his race and people, can give an impartial verdict.

Bill No. 5 — A juror was challenged because he was unable to read or write and was not familiar with the Constitution of the State and Federal Government. There is no law defining the qualifications of the juror as to intelligence. The juror in the opinion of the trial judge was fully competent and sufficiently intelligent to serve as a juror.

Questions as to the intelligence and ability of a juror to serve are within the sound discretion of the trial judge. 30 An. 884.

It is not necessary for the competency of a juror that he should be a scholar. It is sufficient if he is conversant with the English language, and can understand the testimony of witnesses and argument of counsel. State vs. Duck, 35 An. 754; State vs. Ford, 42 An. 256.

There is nothing on the face of the record to justify the motion in arrest of judgment, which avers that no jurors of his own color were drawn on the venire by which he was tried. The record does not show that any juror was excluded on account of his race or color. There is therefore no error on the face of the record upon which to base a motion in arrest of judgment. State vs. Ford, 42 An. 256.

The last complaint is to the refusal of the trial judge to grant a new trial for the reasons alleged in the several bills of exception, which have been disposed of, and that the verdict was contrary to the law and the evidence. It is alleged in the motion, on affidavit filed, that one Austin, who was not summoned for the State, but testified as a witness, stated to the jury that the defendant had stated to him directly after the killing that “ prisoner had killed Sandy Carter because the prisoner would not pay deceased for a pocketknife, and said Austin asked the prisoner if he would kill a man about a pocket knife, and prisoner answered he would.”

It is stated by defendant’s counsel that the testimony of Austin could be disproved by one Colbert, but he had from over-indulgence in intoxicating liquors placed himself in a condition that he could not testify.

This is not sufficient ground for a new trial. The man Colbert should have been subpoenaed, and delay asked until he was in a condition to. appear.

It appears from the statement of facts, prepared at request of defendant’s counsel by the trial judge, that the contradiction of the testimony of Austin was unimportant, and could in no way affect the result of the trial.

Judgment affirmed.


author: McEnery, J.

text:
    No. 333.
    The State of Louisiana vs. Bob Davis.
    An indictment for larceny which shows that the offence was committed more than one year previous to the filing of the indictment, and there are no averments of the causes which suspend prescription, will he guashed and set aside.
    A PPEAL from the Ninth District Court, Hall, J. Parish of DeSoto.

      J. B. Lee and J. B. Land, District Attorneys, for the State, Appellee.

      H. P. Liverman for Defendant and Appellant.
   The opinion of the court was delivered by

McEnery, J.

The defendant was indicted for larceny, convicted and sentenced. He appealed, and has filed the plea cf one year prescription to the prosecution.

The indictment charges the offence to have been committed on the - day of 1890.

It was found and presented on the 4th August, 1892. The causes for the suspension of prescription are not averred in the indictment.

The plea must prevail. Rev. Stat. 986; State vs. Victor, 36 An. 778; State vs. Joseph, 40 An. 5.

It is therefore ordered, adjudged and decreed that the verdict and sentence appealed from be annulled, canceled and' reversed, and the defendant discharged.


text:
    No. 345.
    State of Louisiana vs. James Saunders.
    There is no law requiring the judge to submit his written charge, requested by defendant, to counsel for scrutiny.
    When the trial judge delivers his charge in writing, and there is no objection to it, it is to be regarded as complete and satisfactory as to the statement of the law governing the case.
    After the written charge is delivered, and defendant’s counsel prepares a special charge and requests the judge to give it to the jury, and ho does so, with a qualification orally given, but afterward reduced to writing and read to the jury, the defendant has no just cause of complaint solely on the ground that the qualification was first orally stated to the jnry.
    PPEAL from the Twelfth District Court, Parish of Calcasieu. Fournet, J.

      E. D. Miller and J. R. Land, District Attorneys, for the State, Appellee.

      W. G. MeDonald for Defendant and Appellant.
   The opinion of the court was delivered by

McEnery, J.

The defendant was indicted for murder, tried, convicted and sentenced to be hung. He appealed.

The first complaint of the defendant is that his counsel requested the judge to reduce his charge to the jury in writing, and to submit the charge before delivering it to defendant’s counsel. The judge at once signified his willingness to comply with Sec. 1966 of the Revised Statutes, but declined to submit it in advance to defendant’s counsel. There was no error in the trial judge’s ruling, as there is no law requiring him to submit his written charge to the counsel for defendant for his scrutiny before said charge is delivered to the jury.

The second ground of complaint is that the trial judge added a qualification orally to a special charge in writing offered by the defendant to go to the jury. The added charge or qualification to the special charge was afterward reduced to writing, and the jury brought back from their room and the charge reduced to writing was read to them.

There is no exception in the transcript to the general charge. It was complete, sufficient and satisfactory, which is evidenced by the absence of any complaint against it. The trial judge had fully complied with the law, See. 1966, Revised Statutes.

The judge was not bound to accept the additional instructions asked for by defendant. He could have refused the same, and his ruling would have been sustained if the general charge covered the points asked for in the special charge. The special charge was in writing, but reduced to writing by defendant’s counsel. The defendant’s counsel never requested that the judge deliver the special charge in writing; objection only was made when the judge orally qualified the special charge asked by defendant’s counsel. There is no complaint as to the qualification of the special charge. Its correctness is not denied.

We may add that it was the judge’s right and privilege to put the special charge, if requested, in writing in his own language.

The very fact of offering it, already prepared by defendant’s counsel, was in fact a waiver of the right, that it should be delivered to the jury in writing, by the judge, in accordance with Sec. 1966. We see no reason to disturb the verdict.

Judgment affirmed.


text:
    No. 325.
    The State of Louisiana vs. Floyd Jackson.
    1. Where an appeal is taken from a judgment forfeiting a bond, after the final adjournment of the court which rendered the judgment, the appeal will be dismissed.
    2. Where the appellant suggests an improper return day and place for the appeal, the error is imputable to him and the appeal will be dismissed.
    APPEAL from the Sixth District Court, Parish of Franklin. Bilis, J.

      L. A. Thompson and J. R. Land, District Attorneys, for the State, Appellee.

      A. W. Moore for Defendant and Appellant.
   On Motion to'Dismiss.

The opinion of the court was delivered by

McEnery, J.

This is an appeal taken from a judgment forfeiting an appearance bond, and is" therefore a proceeding in a criminal case.

The order of appeal was granted and the appeal taken after the adjournment of the court which rendered the judgment forfeiting the bond.

The principle is now well established that an appeal from a judgment forfeiting a bond must be taken at the term of court in which the judgment was rendered. It' will be dismissed if taken after the term of the court which rendered it. State vs. Joseph, 38 An. 33.

The appeal is made returnable at Monroe, the second Monday of June, 1893.

This error in the order is imputable to the appellant, as the return day was made at his suggestion. This also is a sufficient ground for the dismissal of the appeal. State vs. Jenkins, 36 An. 865; 38 An. 33; 38 An. 363.

The appeal is dismissed.


author: Breaux, J.

text:
    No. 340.
    The State of Louisiana vs. Charles Hall.
    The jury commissioner was appointed and had been duly qualified; the failure of the clerk to make an entry of the fact upon the minutes of the court at the time of the appointment is not cause sufficient to annul his act as commissioner; the evidence of the appointment was entered upon the minutes before the final adjournment of the first term of the court after the appointment.
    The proces verbal of the drawing of the jury was deposited in the clerk’s office, but it was not actually filed. The defence was not prejudiced in any respect. The proces verbal was of record in the .clerk’s office at all times after it was deposited.
    Counsel for defendant did not object to inadmissible argument of counsel for the State, and request the court to correct alleged mistakes at the moment or in the charge to the jury.
    It was too late on motion for new trial.
    APPEAL from the Second District Court, Parish of Bienville. Watkins, J.

      A. J. Murff and J. B, Land, District Attorneys, Drew & Stewart and Egan & Son for the State, Appellee.

      B. P. Edwards and Dorman & Reynolds for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

The defendant was tried and convicted of the crime of manslaughter and was sentenced to the penitentiary for five years.

He has appealed. The record discloses a motion to quash the indictment on the following grounds: That the grand jury was illegally constituted, as it was drawn from a venire selected by two of the jury commissioners only; thatT. A. Walker, who participated in the drawing and proceedings of the commission was a mere outsider and disqualified to act; that the proces verbal of the drawing of the venire was never filed in the clerk’s office.

In addition to the foregoing defences the defendant applied for a new trial on two grounds:

First, because counsel for the State, in closing the argument, stated to the jury that as the defendant answered, in response to a leading question on cross-examination, that if the deceased had not thrown a jng at him, when the fatal shot was fired, he would not have shot him. ' •

That counsel said that this presented the only question for consideration, and that defendant thereby limited the grounds of defence to‘one, though there were several.

The second ground of the motion for a new trial is that the verdict is contrary to law and evidence.

There are several bills of exception to the transcript setting forth grounds of objection.

The defendant not being represented by counsel in this court, no argument is presented in their support.

We have read the grounds and find that they were properly overruled by the court.

In reference to the participation of a commissioner disqualified to act, a point presented in the motion to quash, it appears of record that the commissioner was appointed when the court was not in session.

His appointment and oath of office were filed with the clerk of the court and were spread on the minutes at the first term held after the appointment had been made.

The appointment and oath were of record in the clerk’s office, subject to the examination of the defendant, or his counsel. The failure of the clerk to make a note of the appointment in the minute book of the court at the time it was made, can not strike with nullity the acts of the person appointed and acting.

The failure of the clerk to file the proces verbal of the drawing of the jury is alleged as the second ground of the motion to quash.

The proces verbal was deposited in the clerk’s office for the March term of court of 1892, and summons issued for the jurors as drawn.

This failure to file the proces verbal was an irregularity in the clerk’s office which should be avoided; although a negligence, it is not per se of such a character as to make it necessary to annul and set aside the general venire for a term, or quash an indictment found by the grand jury.

The motion for a new trial on the ground that counsel for the State made misleading remarks to the jury in the closing argument has no merit.

The argument of counsel in closing before the jury, if objectionable, was not objected to at the time, and no request was made of the court to charge so as to direct the jury’s attention to any objectionable portion of the argument.

The motion for a new trial was properly overruled.

The defendant has not presented any ground in his defence upon which to annul and reverse the verdict and sentence of the court.

Judgment affirmed.


text:
    No. 335.
    The State of Louisiana vs. A. C. Marcus.
    Tlie judge’s narrative of facts, incorporated in a bill of exceptions, to his ruling refusing a new trial, is received as correct.
    It is shown by the narrative that the alleged newly discovered evidence was known to the accused before the trial and he failed, though within liis power, to have it procured on the trial.
    In order to obtain a new trial the newly discovered evidence must have been dis covered since the trial and must be srcli as could not have been discovered by reasonable diligence.
    APPEAL from the Third District Court, Parish of Claiborne. Barksdale, J.

      J. D. Everett and ./. B. Land, District Attorneys, for the State, Appellee.

      MeClendon & Seals for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

The defendant was indicted for larceny.

He was tried and convicted.

He was sentenced to serve at hard labor in the penitentiary during one year.

From the verdict and sentence he appeals.

The defendant applied for a continuance, alleging that he did not have time to prepare his defence. He also, in the motion, alleged various other grounds.

There was no undue haste on the part of the court.

The defendant’s rights were not prejudiced by overruling the motion for a continuance.

The grounds of the motion are not argues or referred to by counsel for the defendant in his brief.

The court’s ruling with regard to them is affirmed without special reference to each, for it would not serve any purpose to write down propositions that do not present any serious grounds of defence.

The motion for new trial on the ground of newly discovered evidence is urged by counsel, who argued that the case should be remanded for another trial.

In defendant’s bill to the court’s refusal to grant a new trial he sets forth that the newly discovered evidence would enable him to make out his defence.

A statement of the facts relied upon, and which defendant alleges can be proven, is contained in the bill of exceptions.

The statement is at variance with that of the trial judge, who states that the new trial was refused for the following reasons:

“1. The verdict was in accordance with the law and the evidence.

“ 2. As to newly discovered evidence, I did not believe a word of its being newly discovered.”

The statement of the district judge does not admit of question.

He has narrated at some length the facts which led him not to credit defendant’s allegation of newly, discovered evidence after the trial.

There is no reason not to accept as correct the conclusion reached by him.

They are not made in any respect uncertain by defendant’s contention that it is newly discovered evidence.

The district judge heard the witnesses and was presumably aware of the facts proven on trial.

He unhesitatingly declares, that, the evidence stated by defendant for a new trial was not newly discovered.

Taking the facts as detailed by him as correct, the conclusion must be the same.

In the absence of any circumstance to weaken the trial judge’s statement, under the established jurisprudence of this court, it must be accepted as correct.

It being shown that the evidence was known to the accused before the trial, it only remains for us to apply the principle that a new trial will not be granted on the ground of newly discovered evidence, if such evidence was known to him before the trial, and he failed, though within his power, to have it procured on the trial. State vs. Anderson, 29 An. 774; State vs. Cotton, 36 An. 980; State vs. Gauthraux, 38 An. 608.

Judgment affirmed.


author: Nicholls, O. J.

text:
    No. 11,063.
    The State of Louisiana vs. The Vicksburg, Shreveport & Pacific Railroad Company.
    1. Held, that the State has had at no tinie separate, distinct interests of her own trader the grant of June 3, 1856, that under that statute it acted simply as an instrumentality through which to carry out a particular purpose of Congress, a means to a special end, and that end one exclusively in the interests of the United States.
    2. That, although in conveying at once all the lands embraced in the trust to the Vicksburg, Shreveport & Texas Railroad Company instead of holding the legal title in herself, selling limited guantities as the road progressed and turning the proceeds from time to time over to the constructing company as it carried on the work, the State made a radical departure from the terms of its agency; still its action was not absolutely null and void, hut only voidable. The government could ratify it, should it he to its interests so to do.
    8. Seld, that as at the end of ten years the powers of the State ceased by exhaustion through its own acts and by limitation of time under the express terms of the act of Congress the State had no power or authority in 1879 to retrace its steps, undo what it had done and attempt to restore the status quo by a simple legislative act of forfeiture, and by repealing its act of transfer of 1857 to the company.
    4. Held, that an agent who has exceeded his powers should not himself be permitted to predicate an. attack upon those with whom he has dealt, by setting up that he has violated his instructions, and that the Federal Government having shown up to the present time no intention of claiming a forfeiture, and the contemplated road having been built, tardily it is true but none the less built, and being now in full operation charged, with the obligations exacted in the grant, the eourt_has no right to assume that Congress will ever seek to forfeit its grant.
    5. Held, that inasmuch as by the granting of plaintiff’s prayer the legal title of the lands would be taken from the company in whom the State herself has placed them, without thereby vesting the absolute ownership of the same in the State (the State’s authority to dispose of them in any way having ceased in 1866), and inasmuch as by the granting of plaintiff’s prayer, should the United States refuse to forfeit the grant, a very large quantity of land would through the instrumentality of this court be placed hors de commerce for an indefinite time — the United States refusing to receive them, and the State under its qualified title, absolutely prohibited from making any use of them, it would be worse than a vain act for the court to adjudge these lands to be the property of the State “ for the objects and purposes of the act of Congress,” which is the decree sought.
    6. Held, that the relations of these parties to each other are, through the act of the State herself, radically different from what they would have been had the State so acted as to have forced the company to come into a court as a plaintiff claiming the proceeds of the lands against herself as defendant, still holding the legal title under the trust.
    7. Held, that the State herself is estopped from claiming that the company did not have such a property in the land conveyed to it as would permit the mortgage given by it to its bondholders to originally attach to those lands, and from claiming that the "mortgage so given by the company under the authority of her own legislative act was null and void.
    8. Held, that the State having no; interests of her own in this suit, and being charged with no duty to the United States in respect to these lands, there is no basis for this petitory action, and the title to the lands must remain where the State herself has placed it until attacked (if ever it should be) by federal authority and under federal rights.
    9. Held, the reconventional demand against the State for damages for an illegal injunction is supported neither by law nor by evidence.

      Biehardson, J. PPEAL from the Fifth District Court, Parish of Ouachita.

      M. J. Cunningham, Attorney General, and C. J. Boatner for Plaintiff and Appellant:
    X. The act of June 8, 1856, was in legal effect a deed in trust to the State of Louisiana for the purposes and on the conditions therein expressed,

      2. The Legislature of the State, by act approved March 11,1857, accepted the trust on the terms and conditions imposed.
    3. By the terms of the trust the State could dispose of the property only on con ditionsprecedent, 21 Wall. 59; 92XT. S. 57.
    4. The grant to the State being by public statute, all persons are charged with notice of the powers conferred by it and with the limitations imposed.
    5. The act of the Legislature of Louisiana approved March 11, 1857, if construed as a disposition va prcesenti of any more of the grant than 120 sections, was void to that extent, being beyond the power conferred by the act of Congress. The grantee under said act was charged with notice thereof, and acquired no rights thereby beyond those the State was authorized to grant.
    6. The act approved March 19, 1857, authorizing the Vicksburg, Shreveport & Texas Company, grantees, to affect the lands covered by the grant beyond 120 sections, by mortgage, was void, because a mortgage is a quasi alienation prohibited by the terms of the grant, which prohibits the land being disposed of except as the work progresses, and prescribes the only mode in which it can be disposed of as the work progresses.
    7. The acts of March 11 and 19, 1857, construed according to the powers invested in the Legislature of Louisiana to deal with this land by the act of Congress, were contracts between the State and one of her citizens by which 120 sections of land were granted absolutely and the grantee authorized to earn the remainder by con^iance with the conditions precedent imposed in the act of Congress — the permission to.mortgage extending in legal effect only to the 120 sections granted in prcesoiti, and to the remainder if it should be earned.
    8. The right of the Vicksburg, Shreveport & Texas Company to all the lands granted, except 120 sections, depending upon the condition that it should complete the line in ten years, ipso facto terminated with the termination of that period, and the right of the mortgage terminated with it. Civil Code of Louisiana, Art. 3411, 3290, 3289, 3282 and 3278; Schulenberg vs. Harriman, 21 Wall. 44, et seq., and cases there cited; 92 XT. S. 57. See also Civil Code of Louisiana, 2043, 2045, 2046, 2130.
    9. To work estoppel, parties to deed must be sui juris competent to make it effectual as a contract. The State of Louisiana being incompetent to grant any rights on the land other than as authorized by the act of Congress, one Legislature could not estop a succeeding Legislature by such unauthorized act 101 XT. S. R. 240.
    To estop one from asserting his legal rights to property there must have been intentional deception or such gross negligence as to amount to constructive fraud. IS Wall. 225; 93 IT. S. R. 326.
    To make doctrine apply to title to real estate, party misled must not only be destitute of knowledge of true state of title, but also of the means of acquiring such knowledge. 93 XT. S. 336.
    Party dealing with trustee with knowledge of the trust is bound by it, and gets no title where there is breach of the trust. 10 Howard, 114; 8 Wheaton, 421. Trust property wrongfully disposed of may be recovered by cesUvi if party in possession had notice offcthe trust. 15 Wall. 165; 3 Howard, 333; 18 Wall. 332; 96 H. S. 30.
    The act 14th February, 1879, was merely a legislative declaration of the forfeiture of the contract contained in act of March 11, 1857, and the grant therein contained was in execution of the trust conferred by the act of Congress. The failure of the last grantee to build the road leaves the legal title in the State of Louisiana, with the trust unexecuted and the right in Congress to re-enter because of the breach of the conditions imposed in the original grant.
    10. The construction of the railroad from Monroe to Shreveport, La., after the expiration of the time prescribed in the act of Congress and the act of the Legislature of Louisiana of March 11,1857, and after the legislative declaration of its forfeiture of February 14, 1879, can not be considered as done under the authority of the State, and therefore conferred no rights under the grant to the constructing company. (See authorities cited in Tucker report Backbone land grant).
    A legislative forfeiture of a public grant, for non-performance of condition annexed thereto is valid and will be maintained. 21 Wall. 63; 5 Wall. 267; 92 U. S. 57.

      Stubbs & Bussell and Wise & Herndon for Defendant and Appellee :
    1. In a grant of lands by Congress to aid in the construction of a railroad, “there be and hereby is granted” are words of absolute donation; import an immediate transfer of title and vest a present title in the grantee, though a location of the road and filing of its map is necessary to give precision and attach it to particular tracts. The location and filing accomplishe^jphis.
    2. The condition in such a grant, that “ if the road is not completed within a certain time no further sale shall be made, but the land shall revert to the United States,” is a condition subsequent.

    3. Time not being the essence of the grant, it is not forfeited, ipso facto, by the failure of the company to perform the condition, but to enforce the forfeiture action must be taken by authority of Congress.
    4. The company had still a right to construct the road out of time, and until in some way Congress takes advantage of the breach, it is the duty of the government to give the company the benefit of the grant.
    8th Opin. Atty. Gen. 244r-256; 11th do. 47; 16th do. 397-572; H. R. Ex. Dec. 47th Cong. 29, p. 35, Atty. Gen. Brewster; 9 Wall. 95; 94 U. S. 743; 97 U. S. 291; 103 U. S. 426; 104U. S. B29; 106U. S. 360; 113U. S. 629; 115U. S. 306.
    5. No one can take advantage of the non-performance of “a condition subsequent ” but the grantor or his heirs or successors, and if they do not see fit to assert their right to enforce a forfeiture, the title remains unimpaired in the grantee.
    6. On the failure of the company to complete the work, a forfeiture of the grant, if it resulted therefrom, can be enforced only by the United States, by judicial proceedings, or the action of Congress. 21 Wall. 60; 115 U. S. 306; 32 Fed. Rep. 899.
    7. By the terms of a grant of land to a State to aid in the construction of a railroad within its bounds, the State is a mere trustee or mutual agent of the grantor and the beneficiary.
    8. The grant is to the enterprise, and upon the completion of a railroad between the termini named and on the route designated in the grant, its acceptance by the trustee, and certification thereof to the grantor, the trust is at an end and is terminated ex necesssitate.

    9. The road opposite the premises in controversy having been completed and accepted, the title, however imperfect whilst encumbered, if it may be so termed, by tbe uses to which the lands were to be applied, has become perfect and indefeasible. 82 Fed. Rep. 907.
    10. Lists of lands selected by the grantee and certified by the General Land Office convey as complete title as patents. Legal title passes as completely by such certification, if patent is not 'expressly ^required Jby law, as though patent is-U. S. Rev. Stat., Sec. 2449; sued. 6 Land Dec. 543; 115 U. S. 102; 116 IX. S. 381.
    11. An estate in fee can not be defeated for a breach of a condition subsequent by a legislative act, unless the condition is expressed in the deed. 2 Bl. Com. 153-54; 4 Kent Com. 120, 123; 16 Wall. 223.
    12. The condition subsequent is the resolutory condition of the civil law. The contract is not dissolved of right by failure to comply; the party complaining must either sue for a specific performance or dissolution of contract. O. O. 2046.
    Conditional obligations are suchas are made to depend on an uncertain event.
    * * If the obligation takes effect immediately, but is liable to be defeated when the event happens, it is then the resolutory condition. C. C. 2021.
    The potestative condition is that which makes the execution of the agreement depend on an event which it is in the power of the one or the other of the contracting parties to bring about or hinder. O. C. 2024.
    The contract of which the coiidition forms a part is like all others, complete by the assent of the parties; the obligee has a right of which the obligor can not deprive him; its exercise is only suspended, or may be defeated, according to the nature of the condition. C. O. 2028.
    The condition being complied with, has a retrospective effect to the day tlia the agreeme2it was contracted. O. C. 2041.
    If the conditions be potestative * * their non-fulfilment does not of right operate a dissolution of the donation; it must be sued for. C. C. 1566.
    A resolutory condition is implied in all commutative contracts, to take effect i2i case either of the parties do not comply with his engagements; in this case the contract is not dissolved of right; the party complaining of a breach of the contract may either sue for its dissolution or demand a specific performance. O. O. 2046.
    The resolutory condition may be expressed in the contract, as well as implied; the principles which control are the same.
    In all cases the dissolution of a contract may be demanded by suit or exception, and when the resolutory condition is an event not depending on the will of either party, the contract is dissolved of right; hut in other cases it must he sued for, and the party in default may, according to circumstances, have further time allowed for the performance of the condition. O. C. 2047.
    13. The act of the Legislature transferring the lands to the company contained no provision in terms for forfeiture to the State, nor was there any] subsequent agreement providing for forfeiture; therefore there could be no forfeiture by the State_ except by judicial proceeding. 92IX. S. 66.
    14. The State had a right, in furtherance of the object of the grant, to make any disposition of the lands it saw fit, “so that it did not cut off the right of the United States to cómpel the application of the lands to the purposes for which they were granted or prevent their forfeiture in case the company failed toperform the conditions of the grant.” 32 Fed. Rep. 906.
    15. The State transferred the lands to the company; specially authorized the mortgage of same to secure the loan to build the road; the mortgage was executed. Third parties became owners of the debt secured by this mortgage; the mortgage was closed, and the property and all its rights and privileges acquired by plaintiff with the full permission and in the mode indicated by the State; the State then is privy to all these proceedings and is estopped from divesting our vested right, destroying our rights as third parties to comply with the condition subsequent and thus earn the lands she held in trust for the enterprise. Therefore Act 39 of 1879 is null. 1 Kent, 456; Cooley Cons. 357; 16 Wall. 203; Cons. La. 155.
    16. Under the terms of the act of Congress, the lands have become the property of the railroad complying with the condition subsequent by constructing the road between the termini named and along the route designated.
    Failure to perform a condition subsequent is excused when it is prevented by vis major, the act of God or that of the obligee. 21 Pick. 389; 3 Denio,334; 8 Blackf. 139; Pothier on Obligations, 212; C. C. 2040; Willis vs. Smith, 3 La. 501; 19 La. 235; 6 R. 450.
    The courts of Louisiana will take judicial notice of the fact of the late war between the States from 1861 to 1865 inclusive, and that theState of Louisiana was an active party thereto.
    It is well settled, indeed it is the textual provision of our code, that where the resolutory condition, when implied, or the condition subsequent expressly stipulated, is an event depending on the will of either party, the dissolution of the contract must be sued for in all cases when it embraces immovable property, and the party in default may, according to circumstances, have a further time for the performance of thecondition. Noe vs. Taylor, 13 La. 254.
    The ease of Gayden^vs. L., N O. & T. R. R. Co., 39 An. 269, is directly in point, and we commend it to the court as fully sustaining our position that the State was without authority to pass the Act 39 of 1879. We assume that the rules laid down by the State in its Civil Code, for measuring and preserving the rights of its citizens, will be observed, when treating, itself a party, with one of its citizens. The parent should not disregard the rules of action he prescribes for his children.
    Then when the code of Louisiana establishes so clear a rule as above stated, the State will not be permitted to violate it, thus disregarding the contractual rights of its citizens. The rights of the State are under the law, not beyond it.
    While the act of 3d June, 1856, was a contract between the Federal Government and the State of Louisiana, and may be governed by the common law, and the construction of the Federal courts, yet the act of 11th March, 1857, was a contract between the State of Louisiana and the V., S. & T. R. R. Co., one of its citizens, and in its execution and enforcement the lex loci must govern.
    This being so, under the plain provisions of our code and its interpretation by our courts, theState was without authority to annul the donation or transfer of the rights it had received from the Federal Government to theV., S. & & T. Co., and therefore the Act 39 of 1879 is null and void and of no effect, as divesting the rights before conferred by the State on said company.
    17. As against a mere trespasser who sets up no title, plaintiff is not bound to show a title perfect against the world. 12 An. 748; 15 An. 76; 35 An. 612; 41 An. 898.
    18. A mortgage made by a railroad company is binding in the several parishes through which it may pass, by the record of same in the parish of the domicil of the company. Act 1855, p. 205, Rev. Stat., Sec. 693.
   The opinion of the court was delivered by

Nicholls, O. J.

On the 3d day of June, 1856, the government of the United States, by act approved that day, granted certain lands therein referred to within specified limits, to the State of Louisiana for the purpose of aiding in the construction of a railroad from the Texas line, in the State of Louisiana, west of the town of Greenwood, via Greenwood, Shreveport and Monroe to a point on the Mississippi river, provided that said lands should be exclusively applied in the construction of said road, and should be disposed of only as the work progressed, and should be applied to no other purpose whatsoever.

The third section of the act declares that “said lands shall be subject to the disposal of the Legislature thereof for the purposes aforesaid and no other, and the said railroad shall be and remain a public highway for the use of the government of the United States, free from toll or other charges, for the transportation of any property or troops of the United States.”

The fourth section declares that “ the lands granted to said State shall be disposed of only in the manner following — that is say, that a quantity of land not exceeding 120 sections, and included within a continuous lengh of twenty miles of said road, may be sold, and when the Governor of said State shall certify to the Secretary of the Interior that any twenty continuous miles of said road are constructed and completed, then another like quantity of land hereby granted may be so sold, and so on from time to time until said roads are completed, and if said roads are not completed within ten years no further sales shall be made, and the lands unsold shall revert to the United States.”

On March 11, 1857, the State of Louisiana accepted the grant, and undertook the trust contained in the above act as follows, by an Act entitled “An act to accept in part of the grant and carry into execution the trust conferred upon the State of Louisiana by an act of Congress making a grant of lands to aid in the construction of railroads in said State. Approved June 3, 1856.”

This act is as follows:

“Whereas, by act of Congress approved the third of June, eighteen hundred and fifty-six, donating lands to the State of Louisiana to aid in the construction of railroads within said State; the Vicks - burg, Shreveport & Texas Railroad Company is entitled to receive four hundred and twenty thousand nine hundred and twenty-four acres of land (here follows letter of commissioner showing 150,880 acres within six-mile limit and 270,044 acres between six and fifteen-mile limit) ; wherefore

“Section 1. Be it enacted, etc., that so much of the lands, lights, powers and privileges as are granted to and conferred upon the State of Louisiana by an act of Congress, entitled, ‘An act making a grant cif lands to the State of Louisiana and so forth, * * * for the purpose of aiding in the construction of a railroad from the Texas line, in the State of Louisiana, west of the town of Greenwood, via Greenwood, Shreveport and Monroe to a point on the Mississippi river opposite Vicksburg, be and the same are hereby accepted upon the terms contained in said act of Congress, and the same are all and severally hereby and upon the same terms disposed of, granted and conferred upon the Vicksburg, Shreveport & Texas Railroad Company, a body corporate, existing under the laws of the State of Louisiana; provided, said railroad company .shall, within ninety days from the approval of this act, accept the ■same under the conditions of the said act of Congress by a resolution of its board of directors, a certified copy of which resolution bearing the corporate seal of the company, with the signature of its president and secretary, shall be filed in the office of the Secretary ■of State of Louisiana, who shall record the same in the record book ..of his office.’ ”

The Vicksburg, Shreveport & Texas Railroad Company complied with the conditions imposed in said act by accepting the terms thereof in the manner provided therein.

This railroad company had been chartered by the Legislature of Louisiana in 1858. Its purpose, as expressed in Sec. 2 of its charter, was “to construct and make a railroad from a point on the Mississippi river, opposite Vicksburg, thence west to the Texas State line via Monroe and Shreveport.”

On the 19th of March, 1857, an act of the Legislature of Louisiana was approved, by which it was enacted: “ That for the purpose of aiding in the construction of the Vicksburg, Shreveport & Texas railroad the Vicksburg, Shreveport & Texas Railroad Company should have and was granted the full and perfect right and power to mortgage and hypothecate all and every part of the lands granted by the United States to the State of Louisiana to aid in the construetion of said railroads by virtue of an act of Congress making a grant of lands to the State of Louisiana to aid in the construction of railroads in said State, approved June 8, 1856, and which grant has been accepted by the State of Louisiana by an act of the General Assembly approved March 11, 1857, entitled ‘An Act,’ etc. That said company should have the right to include in said mortgage all the rights, franchises, privileges and immunities of every kind which the State of Louisiana or said railroad company has or may have into and upon said lands, all of which may be fully covered by such mortgage; said mortgage or mortgages may be made to secure any bond or bonds executed by said company or loan made to said company, or to cover any debt contracted or to be contracted by said company and the interest accruing or to accrue on the same or either of them.” Session Acts 1857, pp. 198-194.

In pursuance of this act authorizing it to mortgage said lands granted to said railroad company by the State in carrying out the object and purposes of the work confided to the State by the act of Congress to construct said road, the railroad company in the following September issued 2000 bonds of $1000 each, for the purpose of raising money to build and equip said road, and to secure the payment of the same executed a first mortgage upon the entire road lands, including those granted to it by Congress and the State of Louisiana.

Previous to this mortgage, and a short time after the acceptance of the grant of land by the railroad company, the lands were selected, listed, and maps made of the same and filed in the Interior Department at Washington, at which time the lands were withdrawn from public sale or entry.

The road was completed within the ten years between a point on the Mississippi river to Monroe, and from Shreveport to the Texas line, and certificates to that effect given by the Governor, but the middle division, that is the portion lying between the Red river and Ouachita river was not completed within that time.

On the 14th of February, 1879, an act was passed by the Legislature of Louisiana to the effect that “Whereas the Vicksburg, Shreveport & Texas Railroad Company had not complied with the terms and conditions of the grant of said lands to the company by the State of Louisiana and had not completed the said railroad within the time limited as aforesaid and has therefore forfeited all claims to said lands except to such as have been legally earned and disposed of by said company; therefore

“Be it enacted, etc., That the claim of the said Vicksburg, Shreveport & Texas Railroad Company to so much of the lands as have not been legally earned and disposed of by said company, according to the terms and conditions of said grant, be and the same are hereby declared forfeited. And the said act of the General Assembly, approved March 11, 1857, entitled ‘An Act etc.,’ be and the same is hereby repealed in so far as the said act of the Legislature grants the said lands to the said Vicksburg, Shreveport & Texas Railroad Company, provided the title to so much as has been earned shall be unimpaired.” (Session Acts 1879, No. 39.)

The General Assembly, having thus declared the lands forfeited, proceeded in the second section of the act to grant them to the Red River & Mississippi Railroad Company upon the 'terms and conditions of the act of Congress, provided it accept within ninety days. It may be saidhere that the latter company had a mere paper existence and it has never accepted the grant.

In the meantime proceedings had been taken in the United States Circuit Court for Louisiana by some of the bondholders of the company in the suit of Henry R. Jackson et. al. vs. The Vicksburg, Shreveport & Texas Railroad Company to foreclose the mortgage mentioned, which proceedings terminated in a sale on the 1st of December, 1879, of the property mortgaged, and at the sale the whole was purchased by a committee of and for the bondholders, who, under Act No. 38 of 1877, proceeded to organize the Vicksburg, Shreveport & Texas Railroad Company (the defendant herein), which company acquired all the property, franchises, etc., formerly belonging to the Vicksburg, Shreveport & Texas Railroad Company. This new company commenced at once the construction of the unbompleted portion of the said road, and in July, 1884, the whole road was completed, and that fact was certified to the Secretary of the Interior by the Governor of Louisiana.

This company owns, controls and operates the railroad along the whole line between the termini designated in the act of Congress) and claims to be the owner of all the lands embraced by the said grant of the United States of the 3d June, 1856.

This claim is contested in the present suit instituted in the name of the State of Louisiana by the'attorney general.

In the petition it is averred that the Vicksburg, Shreveport & Texas Railroad Company, after accepting the said grant under the terms and conditions imposed utterly failed to comply with the conditions of said act of the State of Louisiana and of the act of Congress by building and completing said railroad within ten years, as specified in said act; that the Legislature of Louisiana, by act of 14th February, 1879, declared the grant forfeited, and also repealed its act of 11th March, 1857 — that the said Vicksburg, Shreveport & Texas Railroad Company bepame insolvent, and failed and neglected to complete or even commence the construction of any part of the railroad between Shreveport and Monroe; and at the time of tie passage of said act declaring the forfeiture it had been in default more than ten years; that notwithstanding said legislative act declaring the forfeiture of said grant, the Vicksburg, Shreveport & Pacific Railroad Company, a corporation created under the laws of Louisiana, and claiming to. be the successor of said Vicksburg, Shreveport & Texas Railroad Company, proceeded thereafter to build said line and wrongfully and illegally claims to be the owner of the land covered by said grant.

That the said road was completed between a point on the Mississippi river to Monroe, and from Shreveport to the Texas line, and the necessary certificates made, which authorized the sale of the lands lying contiguous to the completed portions, but that no part of the line between Monroe and Shreveport was so completed by the grantee. That said lands were expressly by said act made subject to the disposal of the Legislature of the State for the aforesaid purposes and no other, and the Legislature of Louisiana has not in any manner whatever authorized the said Vicksburg, Shreveport & Pacific Railroad Company to receive the benefits of said grant or to obtain the sale of said lands as authorized by the grant from the United States, and, as a matter of fact, there has been no lawful sale thereof for that purpose.

That the State of Louisiana was prohibited by the act granting said lands from disposing of the same, except as the work progressed, and was authorized to dispose of them only in'the manner following, that is to say, a quantity not exceeding 120 sections, and included within a continuous length of twenty miles of saidroad, might be sold, and when the Governor of the State certified to the Secretary of the Interior that any continuous twenty miles of saidroad had been completed, then another like quantity might be sold, and so on from time to time until said road was completed.

That the Vicksburg, Shreveport & Pacific Railroad Company claims to own said grant by reason of an alleged mortgage executed on the same by the Vicksburg, Shreveport & Texas Railroad Company by virtue of an act of the Legislature of Louisiana approved March 19, 1857, and their alleged purchase of the same at a sale made to foreclose said mortgage under a decree of the United States Circuit Court in the case of Henry R. Jackson et al. vs. John T. Ludeling et al., and that they by the said mortgage and the foreclosure thereof became subrogated to all the rights of the original parties, and thereby acquired the right to the grant upon completing the road.

The plaintiff avers that said claim is unfounded in law for the following reasons:

1. The State of Louisiana was prohibitefl by the terms of the granting act from disposing of the lands except as the work progressed, and only in the manner and mode prescribed thereby.

2. The grant to the said company was upon conditions precedent, and the title did not pass nor the right to demand a sale exist except as the work progressed.

3. That the mortgage executed by the said company was, so far as it sought to affect the lands in question, absolutely void, as being contrary to the terms of the grant by the State to the said company, and contrary to the terms of the grant to the State of Louisiana.

4. That whatever life or vitality the said mortgage ever had, perished when the Legislature of Louisiana repealed and forfeited the grant, and the alleged purchase of the right to earn said land nearly twelve months afterwards conferred no rights whatever upon the Vicksburg, Shreveport & Pacific Company.

The plaintiff further alleged that the officers of the said Vicksburg, Shreveport & Pacific Railroad Company are selling the lands composing the aforesaid grant as rapidly as they can find purchasers, admitting, however, the want and deficiency of title in the said company by expressly' stipulating against any warranty whatever, and are leasing and endeavoring to lease the same wherever the lands are open and can be cultivated. That they will sell and dispose of the same pending this suit, whereby petitioner will suffer irreparable injury in the destruction of the timber. That said property is worth more than one hundred thousand dollars. Wherefore, the premises considered, the State prayed that the Vicksburg, Shreveport & Pacific Railroad Company be enjoined from selling or disposing of any of the lands embraced in the grant aforesaid on the line between Monroe and Shreveport, either by sale, lease or otherwise.

That on trial of the case the said lands be decreed the property Of the State of Louisiana for the 'purposes and objects set forth in the said act of Congress of June 3, 1856, that the injunction prayed for be perpetuated, and for all proper orders and decrees in the premises.

The injunction asked for was granted but subsequently bonded by the defendant.

The defendant pleaded the general issue, admitted the enactment by the federal government of the Act of 3d June, 1856, and that the State by Act of March 11, 1857, accepted the trust imposed, and conferred the benefits upon the Vicksburg, Shreveport & Texas Railroad Company, and that said company complied with the conditions imposed in said act by accepting the terms' of said act in the manner provided therein. It then declared that, pursuant to the general laws of the State, and especially the act of 19th March, 1857, the said Vickburg, Shreveport & Texas Railroad Company, to obtain funds with which to construct and finish said railroad between the termini and on the line fixed in the charter and the Act of Congress, mortgaged on the 1st September, 1857, all its property, rights and franchises, and especially the lands granted to the State of Louisiana toy the federal government by Act of June 3, 1856. That of the 2000 bonds executed and issued, identified and secured by mortgage, less than 800 were sold on the markets of the world, and that the funds realized therefor were actually used in the construction of said line. That the said company in good faith and with reasonable dispatch proceeded with the construction and equipment of the railroad line, and that when the war between the States commenced it had finished both the eastern division from a point opposite Vicksburg to the west bank of Ouachita river, a distance of seventy-two miles, as well as the western division from Shreveport to the Texas line, a distance of twenty-four miles, and had spent large sums of money and much labor on the middle division, the whole being under contract, viz., that between the Ouachita and Red rivers; that the secession of Louisiana operated as its direct result the stoppage of all works of a public character, and was particularly disastrous to the enterprise in which the Vicksburg, Shreveport & Texas Railroad Company was engaged, and that being between the lines of the contending forces it was utterly destroyed as a railroad and all business broken up; that by the act of the State and the vis major the company was prevented from the technical timely compliance with the terms of the grant, and when thus crippled in 1866 the holders of the bonds applied to the federal court and caused the property to be placed in the hands of a receiver, who had no authority to build, and thus without any fault of the company preventing its compliance with the condition until the termination of the receivership in 1880, when, under a decree of the federal Supreme Court and the permissive laws of Louisiana, all the rights, franchises, privileges and property, especially all the said company’s rights and interest in and to the lands which were the subject of the grant, which, with the consent of the State, had been mortgaged as stated, were purchased at the master’s sale in December, 1879, and under the law were vested in the defendant company a corporation organized and authorized under the laws of Louisiana. That immediately thereafter the defendant proceeded with the work of the reconstruction of the portion of the railroad which had been destroyed and the construction of the middle division viz.: that between the Ouachita and Red rivers', and that the same was completely finished and opened for traffic along its whole line by the 1st of August, 1884. That prior to the war three sections of twenty miles each, beginning at the Mississippi river, were completed and the proper certificates thereof made' by the Governor of the State, and duly filed in the office of the Secretary of Interior at Washington.

That as soon as the western division was completed also certificates thereof were made and deposited in the same office, and as the railroad was completed from Monroe west to Shreveport, the proper evidence and certificate thereof were filed with the Secretary of the Interior at Washington and that to this day no action has been taken by the donor, the federal government, to forfeit said grant or any part thereof. That in so far as the plaintiff, the trustee, is concerned it had no right to complain, since by its own act— —its secession — and the precipitation of the civil war in 1861, the property of its creature, the cestuiqui trust, was paralyzed for more than five years and nearly destroyed, and the litigation, the result of plaintiff’s conduct, prevented any effort to perform, the work until the termination of the receivership'in March, 1880. That any other construction would violate every principle of equity. That within four years after the original grant was made more than one-half of the work of buildingits line was performed, and after the removal of the overpowering force (which prevented work) in 1880, less than four years were required to rebuild and furnish the entire work, thus complying with the condition subsequent embraced in the act of donation. That the plaintiff is estopped by its own acts as above set forth, and especially by its permissive act of the 19th of March, 1857, from denying the authority in the Vicksburg, Shreveport & Texas Railroad Company to mortgage its rights in and under the contracting grant and it would be against good conscience to permit it to defeat rights acquired under the circumstances, and on its own assurance of right. That the condition attached to the grant to the railroad company, that the road should be completed by a day named, is a condition subsequent of which no one but the government, the donor, could claim a forfeiture, and that the government having never set up or claimed a forfeiture of the grant, which is an onerous donation, there has been no interruption and the grant has become absolute and perfect.

That plaintiff having conferred on the Vicksburg, Shreveport & Texas Railroad Company the rights and franchises to build and operate a railroad on the line and between the termini fixed conferred upon it the special authority to mortgage this right and franchise as well as its other property, and defendant having acted thereon plaintiff is estopped not only in declaring or afterward setting up the nullity of the mortgage, but also can not in any other manner than by judicial proceedings attempt to forfeit the charter or rights, and that, therefore, Act No. 39 of 1879 is utterly null and void, as a violation of its own laws as well as the organic laws of the United States.

That the right to perform the condition subsequent was a vested right so far as the plaintiff was concerned, and could not be divested by her own legislative act. Constitution, Art. 1, Sec. 10.

That the rights of the State over the property, the subject of the grant, were purely and simply those of a naked trust for disposition only to the enterprise of a construction of a railroad on the line and between the termini fixed 'in the deed.

That the State can make no other disposition of the land than that prescribed in the deed, the chart of authority.

That the Act No. 39 of 1879 does not, nor does the State, have any authority to forfeit the grant to the enterprise, but it is simply a vain effort to change the name of the agent for the accomplishment of the enterprise.

That the Red & Mississippi Railroad Company, to which Act No. 39 sought to convey the right to earn the lands, though having for its purpose the construction of a railroad on the line and between the same termini as the Vicksburg, Shreveport & Pacific Railroad Company, never had any other than a paper existence — never accepted the terms of the act, nor did it have any capital stock nor do any work, but was a nonentity.

That defendant, after its purchase of the rights and franchises, commenced the work in 1880, and prosecuted the same on the original* line to completion, and that the State, through its executive, as the sections were completed, certified the fact to the general government, and finally, on its completion, August 1, 1884, that fact was duly certified by His Excellency the Governor of the State of Louisiana.

That by the completion of the work the condition subsequent was performed and the title of the donee by the performance of the condition has become absolute and that the certification thus aforesaid was an irrevocable confirmation of defendant’s title.

That defendant, having acquired under due prpcess the franchise to do so, has constructed the railroad and complied with the conditions of the grant, and that the donor not complaining, the trustee , the plaintiff herein, is bound in foro eonseientise in the discharge of her trust to do all arts necessary to complete the same.

That the certification of the Governor was sufficient, but that at the instigation of others the Attorney General, without sufficient authority in law, has brought this suit in the name of the State of Louisiana and obtained an order of injunction, seriously impairing the active operations of the defendant in disposing of said lands to actual settlers and opening the same to productiveness.

That said injunction, issued wrongfully, is oppressive and damaging to defendant’s business, by interruption of the current of its land business and sales, in the sum of twenty-five thousand dollars.

That the injunction and the suit are without merit, and the former should be dismissed with damages as stated, and the latter dismissed and respondent prayed accordingly.

Defendant further prayed that the court would, in said judgment, quiet it in its title to the said lands, all that were the subject of the grant of 3d June, 1856, and all of which has been selected, listed and certified in accordance with the law and the regulations of the Department of the Interior, and finally for general relief.

On trial the court below dissolved the injunction, rejected ' plaintiff’s demand and dismissed the suit.

The plaintiff has appealed, and the defendant has filed a motion to amend the judgment, praying for judgment for damages as asked for in the lower court, and that the court decree the title of the defendant, the V., S. & P. R. R. Oo. to the lands which were the subject of the grant of Congress of 3d June, 1856, to aid in the construction of a railroad from a point on the Mississippi river, opposite Vicksburg, westward through Monroe, Shreveport and Greenwood to the Texas State line to be perfect and indefeasible as having been earned by the completion of the railroad on the line fixed.

In the consideration of this case we directed our attention at once to the Act of 3d June, 1856, in'order to ascertain its exact character • — the motives and reasons for and cause of its passage, and also the relations of the parties inter se, and to the subject matter. It being unquestionably true that the construction of a railroad through a locality plays a most important part in its material and social develop - ment — it being also true that on broadened lines it contributes to the prosperity of the people of the country at large, the act was examined with the view of determining whether such incidental advantages to flow from the proposed work, either to the United States or to the State, was the moving cause of the act, or whether there was or was not some special object or advantage to enure at once to the benefit of the government itself, to which could be referred the impelling motive for the grant.

If the expectation of either general or particular consequential benefit to the State of Louisiana operated on the mind of Congress, that fact is not apparent on the face of Che act. So far as its language affords any clue or reason for its enactment the object of the grant is to be found in the exaction from the road about to be built between the termini designated that ‘ ‘ it should be and remain a high - way for the Government of the United States, free from all toll or charges upon transportation of any property of the United States.”

There have been grants from the general government to particular States, wherein the purpose to contribute to the special benefit of the State was so evident that notwithstanding Congress itself selected the particular purpose to which they were to be applied, and to a certain extent controlled their application, the grants retained the marked distinctive features of real donations, but we do not regard the one presently before us as one of that character.

Whilst the benefits to the people of Louisiana specially resulting to them from the road furnish a clear motive for the acceptance of the trust by the Legislature, there is nothing to indicate that those reasons entered into the thought of Congress so as to serve as a legal link between them on that score.

The result of our examination of the Act of 1856 has been to convince us that it was framed with direct reference not only to limiting, but to strictly limiting the status of the State under it to that of a mere instrumentality to carry out a special purpose of Congress— that the State was to serve as a means to a special end, and that end one exclusively (so far as the act itself shows) in the interest of the general government. This fact is made manifest by the declaration, emphasized by repetition, that the lands were granted for and to be used for the particular purpose above mentioned and no other; by the cautiously and carefully guarded manner of disposing in small quantities of the lands, the legal title of which had been placed in trust in the State by the government, by the limitation of ten years upon the duration of the trust, and the pointed clause in the act that if the railroad was not constructed in ten years no further sales should be made, and the unsold land should revert to the United States. It was important for us to determine whether the State of Louisiana had separate distinct interests of her own in the matter of this grant which she was pursuing in this case, or whether she was simply seeking to guard, protect and enforce the supposed rights of the United States in the premises.

We can see no possible interest in her own right which the State has in this matter; certainly no present interest for a road has been constructed as contemplated, which is now in full operation, carrying with it all the incidental benefits heretofore alluded to.

If the prayer of the petition were granted we would take the legal title out of the defendant without the ownership of the lands being made thereby to vest in the State.

The prayer of the petition recognizes that their absolute ownership should not pass to the State under our judgment — the court is asked simply to decree the lands ‘ ‘to be the property of the State of Louisiana, for the purposes and objects set forth in the said act of Congress. ’ ’ Under such a condition of things the State would have no power of disposing of the lands to her own use, for the act of Congress expressly declares, as we have said, that they shall be disposed of by the Legislature for the purpose of the construction of the said road and no other, and it is manifest on the face of the paper that so far as concerns the execution of the trust by the State it has now passed beyond its control — if control be still needed. The act in unambiguous, unmistakable terms fixes a limit of ten years to the continuance of the trust.

If it be true, as contended by the plaintiff, that a failure by the Vicksburg, Shreveport & Texas Railroad Company to complete the road within ten years operated quoad that company a forfeiture of the grant to it, that same fact put an end simultaneously to any further possible action by the State in carrying out the trust. The time and method of disposing of the lands as fixed in the act are declared by the plaintiff to be sacramental, and any departure therefrom ultra vires. Now, as the sole method of disposing of the lands is by sales of specified quantities in the happening of certain facts, and as further sales by the State after ten years are expressly prohibited, and the lands unsold at that time are made at once to revert to the United States, it is clear that it would be a vain act to decree the lands to be the property of the State for the pitrposes and objects set forth in the act of Congress.

In plaintiff’s brief it is intimated that the object of this suit is “ to return to the general government those lands which have not been used for the purpose for which they were granted, and which will thereby become homes for our people and not enure to the benefit of the speculators who have acquired the property of the old Vicksburg, Shreveport & Texas Railroad Company.”

We are not only not advised of any desire on the part of the general government to have those lands returned, but, so far as our information goes, there has been a very strong but unsuccessful effort made directly upon Congress to have it declare these lands forfeited. ' -

There may be very strong reasons why Congress should mot wish to take such a step. The railroad which it sought to have completed has been constructed — tardily, it Is true, but none the less constructed — and it is now in full operation on the line fixed, and. standing pledged and committed “to be and remain a public highway for the. Government of the United States, free from all toll or charges upon, the transportation oE any property of the United States.” If it was important in 1856 that such a road should be built charged with such obligations, it is doubtless as important now as then.

There would be no certainty (were these lands returned) that a road as contemplated, and particularly a continuous road, could now be constructed on what would now be a divided grant, and with two railroads running on the same line.

Whilst there was unquestionably a departure by the State itself from the terms of its agency from the United States, the general government might think it more to Us interest to ratify this departure than to repudiate it; the action taken was not absolutely null and void, but only voidable should the principal so elect.

An agent who has exceeded his authority should not be permitted to predicate an attack either in his own name or that of his principal upon those with whom he has dealt, upon the allegation and assertion that he has gone beyond his powers; certainly not without giving his principal an opportunity to accept or reject what has been done. It may be greatly to the latter’s interest to accept.

Were the government to take this view of the situation and positively refuse to receive the lands back, and in the meantime under a decree of this court tbe legal title which was placed in trust in the State for the accomplishment of the objects and purposes of the Act of 18S6 should be replaced in the State, a very anomalous condition of affairs would have been produced through the instrumentality of this tribunal. A very large quantity of land would have practically been placed hors de commerce for an indefinite time, the United States Government refusing to claim it, and the State under the terms of its qualified title unable to deal with it for any purpose.

We find the State charged with no duty to the United States in respect to these lands. It had in the first place a mere restricted agency which, such as it was, has expired by the exhaustion of all powers under it and by limitation of time. There has been no intimation to us that the general government has had any communication with the State authorities on this subject since June, 1856.

We are told that a number of citizens have settled upon what are designated the unearned lands on the faith of the non-compliance by the Vicksburg, Shreveport & Texas Railroad Company with the conditions of the grant and of an ultimate forfeiture, and that their rights should be protected. We do not see how any action the State could take in this matter would, if taken, benefit those parties.

It is clear that the proper, in fact the only quarter in which they could be considered would be in and through Congress or the United States authorities.

Finding no interest in the State in its own right in the present suit, and no power or authority in right of the United States, there is no basis upon which this petitory action can rest. The title to these lands must remain where the State herself has placed it until disturbed and attacked, if it ever should be, under federal rights and federal authority.

We have examined the legal points raised by the plaintiff, but the view which we have taken obviates the necessity of a special discussion of them.

So far as concerns the original legal existence of the mortgage granted by the Vicksburg, Shreveport & Texas Railroad Company securing the bonds issued by it under authority of Act No. 198 of 185V, we have held and still hold that the State is estopped from contesting it on the ground of her own want of power to grant the authority to that company to give the mortgage, or on the ground that the railroad had no such ownership in the lands as that the mortgage could not originally attach to it.

There has been a good deal of discussion in the case as to “conditions precedent” and “conditions subsequent,” and as to the effect of the act of the Legislature of 18V9 declaring a forfeiture of the conveyance of the lands to the Vicksburg, Shreveport & Texas Railroad Company and-repealing the act of 11th March, 185 V, but whether what are denominated “conditions” of the grant are really such or merely prohibitory limitations upon the powers of the agent, the State, when she transferred at once, and, as it were, at one bound, the legal title of all these lands to the Vicksburg, Shreveport & Texas Railroad Company, she had gone too far as between herself and that company, no matter what the situation might he between the company and the general government, to take the position that she could retrace her steps and restore the status quo through a legislative declaration of forfeiture or by repealing the act of 1857.

The position of these parties by the act of the State is very materially different from what it would have been had the State so acted as to have forced the company to appear before the court as a plaintiff, claiming the benefit of the grant, as against the trustee ‘still holding the legal title.

There is no prayer in plaintiff’s petition for a present decree of forfeiture — the plaintiff relying upon the position that that had been accomplished as the direct and immediate result of the act of 1879, which has been referred to.

It may be well, perhaps, to note that at the time of the passage of that act, over twenty years had elapsed from the date of the original act of Congress, and that at that time (according to plaintiff’s allegations) the Vicksburg, Shreveport & Texas Railroad Company had been in default over ten years, since the grant had been, in so far as the State was concerned, “executed” by itself. At that time its original powers had expired by exhaustion and limitation and it had acquired no new ones.

We have been called on, on two occasions, to examine into the rights of the present defendant in and to the lands embraced in the act of June 8, 1856, once in the case of the V., S. & P. R. R. Co. vs. Sledge, 41 An. 896, and once in that of Kemp vs. Mower, 42 An. 1007, and whilst by reason of a difference of parties in the present case and those cited the decisions rendered therein do not fall technically under the plea of res judicata, they none the less substantially dispose of the issues raised in this.

The prayer for a judgment for damages against the State by reason of the taking out of the injunction herein finds no support either in the law or the evidence. (See 87 An. 624.)

We do not feel justified or authorized to vary the terms of the judgment from those used by the court below.

For the reasons herein assigned it is ordered, adjudged and decreed that the judgment of the District Court be and the same is hereby affirmed.

Judgment affirmed.


text:
    No. 10,944.
    Mrs. Nina Paland vs. Chicago, St. Louis & New Orleans Railroad Company et al.
    Issues decided and a decision complied with after the case has been remanded are not subject to recall and consideration on second appeal.
    Contributory negligence arises when the plaintiff has negligently omitted to do some act which it was his duly to do. The danger was known, which might have been prevented had he exercised ordinary care, and had he performed that which devolved upon him to perform as a keeper of the property.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

    Buck, Dinkelspiel &Harb for Plaintiff and Appellant:
    1. Every act whatever of man that causes damage to another obliges him by whose fault it happened^ repair it. R. C. C., Art. 2315.
    2. Every person is responsible for the damago he occasions, not merely by his own act, but by his negligence, his .imprudence or his want of skill. R. O. C., Art. 2816.
    8. The right to sue for damages suffered by or killed through an accident survives to his wife, who likewise has a right of action for damages suffered by her by reason of the death. R. O. 0., Art. 2315; Acts of 1884, page 94.
    4.A trespasser must be a wrongdoer; without an injury or an intent to do injury there is no trespass. Bouvier’s Law Dictionary; R. H. L., Secs. 817,818 and 819.
    5.When one is allowed to come upon the land of another, by Sufferance or invitation, he is not a trespasser, and the owner is hound to exercise ordinary care and prudence toward him. Beach on Contributory Negligence, pp. 54 and 55; 2 Law and Equity Reporter, 608; 48 American Reports, 727; 43 American Reports, 740: and more particularly as directly in point, Ivay vs. Pennsylvania Railroad Company; 3 American Reports, 625.
    6.No on** has a right to erect death traps on his premises even to injure a trespasser or thief. 35 American Decisions, 96; 18 American Decisions, 18; 6 Southern Reporter, 81.
    7.The owner of a building is liable for an injury caused by the falling thereof, whether the cause of the fall was due to his neglect or to the act of third persons done without his knowledge. 3S An. 280, and authorities there quoted. See also Tucker case, just decided.

      Farrar & Leake for Defendant and Appellee:
    1. To maintain an action by a servant against a master for an injury resulting from defective buildings, premises or appliances, two elements must concur, viz.: fault or knowledge on the part of the master; innocence of fault or ignorance of the danger on the part of the servant. Carey, tutrix, vs. Sellers et al., 41 An. 500.
    2. However gross*the fault of the master in subjecting the servant to risk from such causes, yet when the servant knows the defects and danger, and still knowingly and without protest consents to incur the risk to which‘he is exposed thereby, lie is deemed to assume such risk and to waive any claim for damages against the master for injury resulting therefrom. Ibid.
   The opinion of the court was delivered by .

Breaux, J.

Suit was brought by plaintiff to recover damages in the sum of $15,000, sustained, she alleges, in the death of her husband, caused by the fall of certain constructions, or sheds, on square of land in this city, the property of the Illinois Central Railroad.

She charges that the sheds fell through the gross negligence of the defendant the said railroad company. ,

The suit was brought against the Chicago, St. Louis & New Orleans Railroad Company.

It having been ascertained that the property did not belong to the last named company, but to the Illinois Central Railroad Company, a supplemental petition was filed, in which it is alleged that the Illinois Central Railroad Company was at the time' of the accident, set forth in the original petition, the owner of the property and amenable in damages in the amount claimed.

To this petition the last named company filed an exception and an answer, and the trial was proceeded with against the Illinois Central Railroad Company.

The judgment was against the said company for the sum of $6000.

The exception of no cause of action was overruled by Houston, judge.

The case was tried before his successor in office, who accepted the ' ruling made by his predecessor, as correct.

On the first trial the ownership of the property was proven as alleged; also that the falling sheds of the defendant inflicted mortal injuries upon plaintiff’s husband.

That these sheds were in a decayed and dilapidated condition at the time. That pieces of these buildings were broken down and carried away by persons in the neighborhood. That the sheds were in consequence not sufficiently supported, and dangerous. That they were made dangerous by the trespassers, who tore down pieces to carry them off. That the public passed over the property diagonally to shorten the distance; that of the number plaintiff’s husband while on the property became a victim of the accident.

It was upon this evidence that judgment was rendered against the defendant.

Before another division of the Civil District Court, that over which Judge Rightor presides, another case was tried, viz.: Mrs. J. H. Tucker vs. Illinois Central Railroad Company.

Mrs. Tucker sued the defendant company for $25,000 for the bc>dily suffering of her husband, and her pecuniary loss in his death, caused by the fall of the lumber sheds, which also killed Mr. Paland in their fall.

They were killed at the same time and by the fall of the same sheds on defendant’s property.

It was shown as part of the evidence in that case that steps were taken by the owner to protect the sheds, and to prevent carrying oil the material.

In the decision of this court in the Tucker case reference is made to the fact that Mr. Paland was the person employed as keeper of the property.

The case at bar was submitted, and certain issues were decided after the decision in the Tucker case.

The court took notice of its decision in the case last mentioned and cognizance of facts which were proven.

In the opinion remanding this case the court held, that it was important to hear further evidence proving the circumstances under which the deceásed Paland entered the premises, and was under the defendant’s sheds at the time that the accident occurred, facts not satisfactorily proven in the trial.

We quote from the opinion:

u Now in Tucker’s ease, it was in proof that-for some time previous to the fall of the sheds Paland had been employed by the company’s agent to keep trespassers off the premises, a circumstance which would have in our opinion a very material bearing- on the issue herein involved, and strange to say the record contains no testimony whatever on this point.

“ We deem it our duty to take cognizance of facts proved in a case submitted to our review, which have a direct bearing on another case also under submission before us for adjudication. 4 * But that cognizance in the present ease is'not of itself sufficient to shape our decree.

“ Hence wé feel constrained to remand the ease for proof on this important point.” Paland vs. R. R. Co., 42 An. 290.

The decree remanding the case, also annulled, avoided and reversed the judgment.

Om the second trial evidence was admitted in compliance with this court’s decree.

Upon other evidence adduced, the learned judge of the District Court reached a different conclusion from that previously reached by him. He decided that defendant’s agent employed Herman Paland, plaintiff’s husband, to keep trespassers off the place and prevent the building from being depredated upon; that the danger was apparent, and that he accepted the employment, knew the danger and assumed the risk.

He rendered judgment rejecting plaintiff’s demand.

We have examined the testimony produced by the defendant upon the point which was held highly important when the case was remanded.

The plaintiff did not offer other testimony, if any was available, nor did she attempt to account for her failure to furnish any testimony.

The testimony proves that Paland was employed as keeper of the property.

The counsel for plaintiff urge that the evidence introduced in the second trial before the District Court should not be considered, and that the case should be decided on the evidence in the first case.

They invoke the elementary rule of law, that that which a party does not allege he can not prove.

That was their plea for a rehearing, which the court passed upon and remanded the case.

This question is no longer an open one.

The order of the court and the conclusions expressed in the decision remanding the case are plain. They are final and irrevocable, binding upon all parties to the suit and must be respected by this court.

Principles and issues settled by adjudications must remain settled, and are not subject to reconsideration.

The negligence of the keeper is proven.

The following rule is supported both upon principle and authority:

Contributory negligence arises when the plaintiff as well as the defendant has done some act negligently or has omitted, through negligence, to do some act which it was their respective duty to do, and the combined negligence of the parties has produced the injury.

It was the duty of the keeper of the property to prevent trespassers from dilapidating and stripping it until it fell.

It is also in proof that some time before the accident the danger on account of the dilapidated state of the property was apparent.

Then the relation of employer and servant exists; the latter assumes the risks of injury from all the ordinary dangers incident to the employment of which he had notice before voluntarily exposing himself.

Judgment affirmed at plaintiff’s and appellant’s costs.