author: Nicholls, C. J. Miller, J.

text:
    No. 12,330.
    T. Armance Derouen et als. vs. Tiburce Norres, Personally and as Administrator.
    The remedy granted by Art. 3057,0. 0., is universally Recognized as being a departure from the general rule announced in Art. 15, C. P., that “ An action can only be brought by one having a real and actual interest» -which he pursues, but as soon as that arises he may bring his action,” and hence it is not to be extended by analogies.
    The surety does not become a creditor of the principal, by the simple fact that he has entered into an engagement by which he may ultimately be made to pay money for or on his account.
    The remedy granted to a surety under Art. 3057 is one which he exercises in his personal name, by virtue of a right belonging in&ividually to himself, and in no wise for or on account of the creditor, nor by virtue of a right of action borrowed by anticipation from the creditor.
    When the heirs and creditors of a succession are. themselves moving for the protection of their own interests, there, is less .reason and necessity for the exercise of rights granted to sureties and heirs under Art. 3057 0. 0., than there would be if those parties were remaining silent and, inactive.
    APPEAL from the Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J.

      Weeks & Weeks and L. T. Delaney for Plaintiffs, Appellants.

      Foster & Broussard and Anthony L. Muller for Zenor Décuir and F, Jules Hébert, Defendants and Appellees.
    Submitted on briefs January 5, 1897.
    Opinion handed down February 15, 1897.
    Rehearing refused May 10, 1897.
    Statement op the Case.
    On the 9th of December, 1889, the defendant, Tiburce Norres, qualified in the parish of Iberia as administrator of the succession of John Hays, on furnishing a bond often thousand dollars, signed by ten persons as sureties. The present suit was instituted upon the joint petition of six of the said sureties, and of six out of a very large number of heirs left by Hays. In their petition plaintiffs alleged the appointment of Norres as administrator of Hays and the execution by him of the bond above mentioned. They then averred that after great delay Norres filed his tableau of distribution, showing funds of the estate of twenty thousand dollars, which account was homologated in 1895. That while the tableau showed the administrator had the said amount in hand, yet he had not deposited it in either one of the three banks in the parish of Iberia, but had by illegal and wrongful agreements between himself on the one part and Zenon Décuir, P. Jules Hebert, Marcel Dárouen and Ludger David (all of said parish) allowed said parties to have possession and use jointly of the said moneys, they agreeing to give same to him whenever needed to meet claims against said succession.
    That of said funds the said 'four persons, made co-defendants in the suit, had wrongfully retained and still withheld from said estate and the administrator and the petitioning heirs sums aggregating more than seven thousand dollars.
    That among other amounts said ZENON DECUiRpaid himself and retained on March 15, 1893, two amounts; one of two thousand two hundred and ninety-nine dollars and fifteen cents and one of two hundred aud fifty-one dollars and forty cents. And on two other dates not specified he had retained and paid himself two other amounts, one of six hundred and fifty dollars, more or less, and one of seventy-five dollars, said to have been paid to Walter J. Burke. That other amounts besides were retained at divers times as would be shown on the trial — all of which sums the said Décuir took, retained and credited himself with out of the funds of said estate on pretence of the said Norres personally owing him such amounts.
    That the said Hebert from time to time took and retained from the funds of the said estate sums aggregating nine hundred dollars not due him by the estate bud claimed by Hébert to be due .to him by Tiburee Norres or members of his family, among other sums (which would be shown on the trial), an amount of one hundre 1 and forty dollars claimed by Hébert for cattle sold by him to Norres and four hundred and fifty dollars for land sold by Hébert to members of Norres’ family.
    - That all said credits in favor of Décuir and all said charges made ■by Hébert were made with the consent of Norres and in pursuance of illegal, tortious, and fraudulent agreements, bargains and understandings between said Norres and the said Décuir and Hébert're-spectively, which said'agreements and-the said credits and charges thereunder and each of them were made known to, acquiesced in and consented to by the others of the above named defendants and made their contracts by agreements among them. And that they among them wrongfully withhold and retain of the moneys of the said estate considerably more than four thousand one hundred dollars under pretence thereof. Plaintiffs averred that on other pretexts such as having bought in claims which either did not exist or which in fact they had not acquired, and of having paid other claims which in reality they had not paid, and other like pretences, though in reality without right said Hébert, Déeuir, Dérouen and David wrongfully hold funds of said estate in addition to*said four thousand one hundred dollars, amounting to three thousand dollars, making a total of more than seven thousand one hundred dollars of the said funde wrongfully, tortiously and fraudulently retained by them.
    They alleged that the filing and homologating of said tableau and the settling of claims thereon was wilfully and illegally retarded and delayed by said Hébert, Dérouen, David and' Déeuir for the purpose of enabling them to have the use of said funds without interest, and to speculate on the heirs and creditors of said estate, and to buy,in their claims and shares at a profit to themselves. That by said means they purchased claims of heirs and creditors largely exceeding three thousand dollars in aggregate value for less than fifty per cent, of their real worth, all in fraud of Che vendors thereof.
    That they vainly endeavored to purchase> the claims of the petitioning heirs and delayed the proceedings partly for that purpose. That all the acts, contracts, understandings, bargains and agreements between Norres, either personally or as administrator, and the said Hébert, Déeuir, Dérouen and David, or any of them, under which they obtained or held possession of funds belonging to said succession, or used any of its moneys or credits to pay any amounts due by Norres personally to themselves, or other parties, or refuse to surrender any funds, credits or assets of said succession in their hands, as well as all the above other mentioned agreements, arrangements, bargains and understandings, among said defendants or any of them, and all things due thereunder were entered into and perpetrated in fraud of said estate, the heirs thereof, and the plaintiffs in the suit then being brought, and they have, in fact, defrauded and worked them injury. That at the time said bargains and agreements were. made, respectively, all of said defendants knew that said funds belonged to said estate, and also that said amounts credited, charged and retained were not due by it, and further, were well acquainted with all the facts above recited, and all others connected therewith, and were also kept informed of all matters concerning the said succession.
    That in consequence of the above-recited facts, illegal schemes and frauds, and because of the said withholding of the funds of the said estate by said parties, the administrator has not on hand the amount shown in his tableau, and is without funds to meet the claims of the heirs and others as therein recognized; that said Norres is insolvent; that various ones of the heirs have issued execution, and have exhausted all their legal remedies against him to collect the amounts due them respectively, but without avail, and that the heirs are already threatening to proceed against petitioners’ bondsmen to obtain payment. That as his bondsmen they are bound in solido to the amount of said bond to the said estate and the heirs and creditors thereof for any and all acts of maladministration and misappropriation done by the said administrator, and that as all proper steps have been taken they are now liable on said bond.
    That said Décuir, Dérouen, Hébert and David, by reason of the above alleged wrong-doings and fraudulent bargains and contracts, have made themselves liable in solido with said Norres for the said funds of the estate held by them all with interest from January 1, 1894, at the rate of eight per cent, per annum until paid.
    That there be judgment in favor of petitioners and against said defendants, annulling and avoiding (in so far as said annulling may be necessary, if at all) each and all of the above mentioned agreements, bargains and understandings among the above named defendants or of any of them in reference to the said funds of said estate as fraudulent and in contravention of law and decreeing same to be absolutely null and of no effect, and further adjudging, condemning and decreeing the said defendants in solido to pay petitioning bondsmen the full sum of seven thousand one hundred dollars, with eight per cent. • interest thereon from January 1, 1894, until paid — and each of the plaintiff heirs pray for judgment in their favor and in solido against said defendants for the amount due them respectively as shown by said tableau, to-wit: F. R. Thomas for eighty-two dollars and eighty-nine cents; Miss Eliza Hays, two hundred and forty-seven dollars and forty-eight cents; Celestine Darby, wife of Emile Robin, twenty-nine dollars and forty-nine oents;- Edmond Darby for twenty-nine dollars and forty-nine cents; Oelestine Bonin, widow of Jules Etienne, for fifty-nine dollars and ninety-two cents; Euphrasine Bonin, widow of Bélizaire Hébert, fifty-eight dollars and ninety-two cents.
    They prayed in the alternative, if their prayer as so made could not be granted that the amounts to be collected under the judgment to be obtained in the suit be deposited by the sheriff, in some one of the banks of Iberia parish to the credit of defendant Tiburce Norres, administrator, and subject only to his cheek in favor of the heirs to whom the said moneys are due as per tableau of distribution filed and homologated in said succession. They further prayed for such judgment and orders as would secure to the heirs of said estate the paymeat of their just claims and would relieve and protect the sureties on the administrator’s bond.
    Defendants Marcel Dérouen and Ludger David excepted to plaintiffs’ demand:
    1. That the allegations therein were too vague and not sufficiently explicit to enable them to prepare their defence — that among other allegations the petition recites: “that by certain illegal, wrongful arrangements, etc., the funds of the succession of Hayes were placed in the hands of exceptors,” without precising what these illegal arrangements were or how or when entered into. That the petition states that: “ the funds were not sufficient to pay the heirs and the others,” never mentioning who those “others ” are.
    * * # ;js * s{s
    5. There was a misjoinder of plaintiffs. The heirs and the sureties on the administrator’s bond having no privity of interest in the present matter.
    6. There is a misjoinder of defendants, especially upon the following allegations: “ That Zenon Décuir-paid himself two thousand two hundred and nineteen dollars and fifteen cents, two hundred and fifty-one dollars and six hundred and fifty dollars — that F. Jules Hébert paid himself nine hundred dollars and one hundred and forty dollars. That under these very allegations the defendants, Marcel Dérouen and Ludger David, had no privity of interest with the other defendants.
    They prayed that their exception be maintained and plaintiffs’ action dismissed. The same defendants subsequently filed an exception of no right of action — also that the succession of Hayes was still under administration — that it had not been finally settled, nor the administrator discharged. Therefore the plaintiff heirs nor the bondsmen had no right of action.
    Exceptions were filed on behalf of defendants, Zenon Déeuir and F. Jules Hébert, that there was a misjoinder of parties plaintiff in this, that there is and can not be under the law between plaintiffs any joint interest in the thing demanded, or any privity of contract or right of interest therein — that they have no cumulative form or remedy upon their separate and distinct demands, bub each creditor has his own separate action and remedy upon his own individual claim by another distinct form of proceeding — that the law does not permit separate and distinct creditors to join in one action all their debtors when there is no privity of contract between them, as is shown by the allegations in the present suit. That plaintiffs’ suit shows a want of privity between the parties thereto, and hence no judgment can be rendered herein. That plaintiffs are estopped in law. In a judicial bond they have guaranteed the faithful perform - anee of the administrator, Norres, in the duties imposed on him by law and can not now be heard in the present form of action to deny their own allegation and admission. That plaintiffs disclose neither cause nor right of action. Also, that plaintiffs’ action is premature.
    The court sustained the exceptions taken by the defendants, and dismissed plaintiffs’ suit, reserving to all parties their rights, to be exercised in due course of law.
    Plaintiffs appealed.
   The opinion of the court was delivered by

Nicholls, C. J.

The petitioning sureties base their , right of action upon Art. 3057 of the Oivil Code, which authorizes sureties under certain conditions enumerated in the article, even before making any payment, to bring suit against the debtor to be indemnified by him. The second paragraph of the article authorizes the .bringing of such a suit “when the debtor has become a bankrupt or is ■in a state of insolvency.”

The remedy granted by the article cited is universally recognized as being a departure from the general rule announced in Art. 15 of the Oode of Practice that “an action can only be brought by one having a real and actual interest which he pursues, but as soon as that arises he may bring his action;” and hence it is not to be extended by analogies. Its exercise is strictly restricted to the special eases provided for.

Laurent, Vol. 28, Sec. 257, says.:' “Tout-le monde reconnait que c’est par dérogation aux principes et par des considérations d’équité que la loi permet a la caution d’agir alors qu’elle n’a pas encore payé: oh les dispositions exceptionelles ne s’étendent pas meme par voie d’analogie.” [See Dalloz & Verge under Art. 2032, No. 10; J. G. Cautionnemejat, 282].

The surety does not become a creditor of the principal by the simple fact that he has entered into an engagement by which he may ultimately be made to pay money for or on his own account. He becomes a creditor only by the fact of payment. The plaintiff sureties are not creditors of the administrator Norres. They are neither creditors of the succession of Hayes nor are they heirs in that succ cession.

It has been held that a party who has no interest in a succession can not interfere in its administration (Field vs. Mathieson, 3 Rob. 38; Succession of DeArmas, 1 Rob. 461; King vs. Lastrapes, 13 An. 582; Randall vs. Bank, 17 La. 273; Macarty vs. Bond’s Administrator, 9 La. 355; Succession of Connolly, 5 An. 753; Succession of Tuthill, 14 An. 645.

If the administrator of the succession of Hayes permitted Déeuir and others to hold possession of the funds of that succession and to apply them to the payment of claims which they held against him— “under illegal bargains and arrangements between them” — that was a matter which may concern the heirs and creditors of the succession, but it is one in which, up to the present time at least, the sureties on the administrator’s bond have not a direct legal personal interest. The funds so misapplied by illegal payments, bargains or arrangements did not and do- not belong to Norres, their assumed debtor. They can not, by anticipation, attack those acts or claim back that money. The remedy granted to a surety is one which he exercises in his personal name by virtue of a right belonging individually to himself and in nowise for or on account of the creditor nor by virtue of a right of action borrowed by anticipation from the creditor.

■. Laurent, Vol. 28, See. 261, says: “On a soutenu que la caution avait le droit en vertu de 1’Article 2032, O. N., d’exercer les actions du créancier contre le débiteur. C’est une de ces opinions étranges qui tendent a faire un nouveaux Code Civil. Elle n’a pas trouvé faveur; la Oour de Cassation répond et la réponse est peremptoire qu’il n’existe pas en droit franpais de subrogation antieipée, ni totale ni partielle, le paiement réalisé étant toujours la condition premiére d’une subrogation quelle qu’elle soit. Aussi n’y a-t-il pas un mot dans 1’Article 2032 qui ait trait a une action de subrogation. La loi donne seulement a la caution le droit d’agir contre la débiteur pour étre par lui indemnisée; la caution exerce ce recours en son nom personnel en vertu d’un droit qui lui est propre et nullement pour le compte du créancier ni en vertu d’une action qu’elle emprunterait par anticipation a celui-ci. En définitive il n’y a pas une ombre de subrogation dans I’espece. [Cassation, 19 Decembre, 1872 — Dalloz, 1873, 1-38 ”].

We are of the opinion that the sureties on the bond of Nones have [as they have proceeded herein] no right of action against Décuir, Dérouen, Hébert and David; that they have no legal warrant to attack any payments, bargains, arrangements or contracts between them and Norres as to succession funds. They are not entitled to intrude themselves into a succession and attempt to direct or control the administrator in the discharge of his duty or to call his acts in question. That, as we have said, is a matter for heirs and creditors to deal with. Whatever action they may have against the party for whom they have become sureties [under Art. 3057] of the Civil Code is to be made available and enforced outside of the succession through a separate independent action against him personally. The situation is not changed by some of the heirs permitting them to join them in a proceeding which they are directing against the administrator. Their presence in such a suit multiplies parties and complicates issues in a manner totally unauthorized. Though the ultimate object sought to be attained by the heirs and the sureties might be the same — the securing of the faithful administration of the affairs of the succession, it would none the less be sought to be effected by parties acting upon different théories and lines and independent causes of action. Where the heirs and creditors of a succession are themselves moving for the protection of their own interests there is less reason and necessity for the exercise of rights granted to sureties and heirs under Art. 3057 than there would be if those parties were remaining silent and inactive. (See Laurent, Vol. 28, Sec. 253; Duranton, Vol. 18, p. 383.) We think that the judgment of the District Oourt is correct in so far as its effect was to dismiss the suit to the extent that it was based or predicated upon the demands made therein by the sureties upon the administrator’s bond.

We now examine the suit, as if one brought by the heirs alone, in manner and form as brought against the defendants. The petition in the case is so exceedingly vague and uncertain that it is almost impossible from it to ascertain what the complaints of the heirs really are. We know nothing of the situation of the succession prior to the homologation of the final account and tableau of the administrator.

There are certain things, however, which are sufficiently clear— the first is that the plaintiffs are without interest in championing the rights of creditors and heirs, whose rights or claims may have been bought up by the defendants, Dérouen, Décuir, David and Hébert. If parties have been unfairly dealt with they must themselves make their complaints heard. So long as the debts advanced against the succession were real valid debts, it was a matter of indifference to the heirs whether they should be paid to the creditors themselves or the assignees of those creditors. Another matter is that the plaintiffs can not, after the administrator’s accounts have been approved and homologated and creditor’s rights have been admitted thereon, go back of the homologated account and tableau to question the existence, validity and amount of the claims. If objections there were to any of the claims which were advanced, they should have been urged by way of opposition to the accounts prior to homologation. Plaintiffs by acquiescing in the amounts fixed in their respective favor in the final tableau as those due themselves, as heirs, recognize as valid the payment of all sums, which by reason of being so paid out as for succession debts, have left the balance no larger than it is. They can not attempt now to swell their distributive shares.

Eliminating from the petition the features we have just referred to, plaintiffs’ complaints, as well as we can make them out, are that the administrator holds in point of fact no part of the moneys for which he recognizes himself to be responsible, as shown by his final account and tableau. That he has misapplied them entirely. That plaintiffs themselves are able to account for and do account for a part of the misapplied funds. That Norres, the administrator, in some way (the particular way not being disclosed or specified) allowed the defendants Déeuir, Dérouen, David and Hébert to have possession of part of ' the funds of the succession, instead of depositing them in a bank as he should have done. That subsequently some of the parties having purchased the interests of certain of the heirs were permitted by the administrator to be paid the distributive shares due to the heirs, of whom they were assignees, out of the succession moneys which were in their possession. That the administrator being personally indebted to some of the four named defendants, permitted and consented that they also pay themselves those debts out of the same succession funds. That through these payments so made Déeuir and others have absorbed the entire moneys whose misapplication is explainable and left the plaintiffs as heirs with a mere paper claim against the administrator Norres, who is now absolutely insolvent. They object to being driven to an action against the sureties on the administrator’s bond While the four parties named have received either partial or entire actual payment. They contend that under the conditions stated the payments made to Déeuir, Dérouen, David and Hébert should be decreed illegal and set aside, and that the moneys which they have been permitted to apply to the purposes stated should be held as being still in their hands subject to be reclaimed in action of repetition by the heirs as being moneys of the succession which the administrator had no right to use as .he did. The relief and remedy to which they consider themselves entitled is disclosed in the prayer of their petition. They ask that each of the plaintiff heirs have an absolute judgment to the amount of the distributive share coming to him from the succession, as shown by the homologated account and tableau, against the administrator, Norres and Déeuir, Derouen, David and Hébert in solido. That, in addition to this, the six plaintiffs have judgment against and recover from these same parties in solido for the full amount of what are claimed to have been the illegal payments permitted to have been made to them by the ad - ministrator. That this judgment should be executed in the name of the plaintiffs, but under a clause which they desire should be inserted in the judgment (and reproduced or inserted in the writ of execu - tion) ; that the sheriff, upon receiving moneys under the execution, should not pay them to the plaintiffs in the writ, but deposit them in a bank in Iberia “ to the credit of the administrator, Norres, subject to be drawn out only on his. check in favor of the heirs to whom the moneys were due as per tableau of distribution,”

Before attempting'to analyze the demands of, the plaintiffs, we observe that this is not a proceeding ruling an administrator, who has not yet been discharged, into court to show cause why hé should not be ordered under penalties to deposit the funds he has in his hands into bank, subject to the orders of the court. The administrator is charged with being now insolvent and the object of the present proceeding is through suit, judgment and execution against third parties to obtain a certain amount which is to be deposited in bank, not by the administrator, but by the sheriff. Again, this is not an attempt to place into a bank, under' control of the court, a small balance of misapplied succession funds, which plaintiffs seek to recover and have applied “ pro rata" among the heirs or to have brought back and "prorated" among all the heirs, payments which had been made to.particular heirs or their assignees upon their distributive shares upon the ground that both the administrator himself and the sureties on his bond were insolvent and therefore those payments worked to their injury.

If judgment be rendered as prayed for and funds should go into the hands of the sheriff, plaintiffs propose before they reach the bank to appropriate at once a part of the same to themselves in full payment of the separate judgments which they seek to obtain in this suit and which they already hold. The effect of this would be to disengage the plaintiffs from all further interest in the succession and drive the defendants who hold as assignees of some of the heirs into an action against the sureties on the bond (who are perfectly solvent for all that appears) instead of plaintiffs being obliged to do so themselves. They desire simply that the present position of parties be shifted. But let it be assumed that the judgment had been rendered and executed as prayed for and that moneys had been collected and deposited under the execution as asked. For whose account and for whose benefit would the fund be there? No persons other than the plaintiffs have appeared and declared themselves aggrieved by the present condition of affairs. We are not informed which heirs remain unpaid, or how much remains due to them. Non constat but that the court would be ordering the collection of funds for which there would be no claimants. We see no authority under which the plaintiffs seek to have judgments obtained and moneys collected for unknown and unnamed heirs. They allege no such authority.

The administrator has not only filed an account, but he has also filed a tableau of proposed distribution to the heirs. He-has-under - taken to fix their rights according to what they would be, if, as between the succession and the heirs, there were no claims to settle. He has substantially made a partition for the heirs (provisional if not definitive) through his tableau should the heirs on being cited make no appearance to contest by intervention or opposition the proposed distribution and to require that the administrator hold the funds until through a partition the rights of the heirs inter se be .liquidated, and all matters of collation disposed of. An administrator, when he has paid off the debts of the succession, is bound to turn the balance of the funds over to those entitled to them. He ascertains to the best of his ability who those parties are and what their rights in the funds are, and proposes to make a distribution accordingly. He calls all parties into court to raise objections, if any they have, to his doing so. Quoad the administrator the payments so intended are a distribution or division of succession funds, not a partition among heirs (Rachal vs. Rachal’s Heirs, 10 La. 458). The heirs may permit it to become substantially a partition if they remain inactive. When the account and tableaufiled in this case were homol-ogated each heir acquired a separate distinct judgment with a right of separate remedy. No judgment against Norres in the present suit would give them any more thoroughly recognized and liquidated rights than they now hold. Each heir was perfectly competent and authorized to take care of his own interests and exercise his own remedies. It is intimated by the heirs that they must exhaust all their remedies, before they are permitted to have recourse upon the sureties on an administrator’s bond. The law has a provision to that effect (R. S., Sec. 1781) ; but this refers to matters in which the sureties have a legal interest. If the amounts which the administrator pays out are paid out to parties who are entitled legally to receive them, the sureties on his bond are not concerned in any mere equality in the distribution of the funds. If there should be an illegal deficiency of funds to pay all those entitled to receive, the sureties would be responsible for that deficiency, and it would be a matter of indifference to them whether suit be brought against them by one particular heir rather than another.

'J Again, while it is the duty of parties having rights in, to or against a succession to exhaust their remedies before going upon the sureties on the bond of the administrator, it is not intended that each one should exhaust anything more than his own remedy, and to the extent of his own rights.

To each of these suing heirs was attributed on the tableau a cer - tain fixed amount declared to be due as the proposed distributive share of the parties named, in the succession of Hayes. When the account was homologated, the amount so set apart became a separate judgment in favor of each party named, enforeible separately in favor of each after due demand, as provided for by Article 1057 of the Oode of Practice.

The distributive shares of the six suing heirs amount in the aggregate to the sum of four hundred and sixty-eight dollars and nineteen cents ($468.19), the largest amount due to any one of them being the sum of two hundred and seven dollars and forty-eight cents.

Assuming, therefore, that it was either the duty or the right of these six parties to act in conjunction as they seek to do against Norres and the other defendants, the whole extent of their interest in the matters of which they complain would not exceed four hundred and sixty- eight dollars and nineteen cents, with legal interest thereon from the date of the homologation of the tableau. That would be the whole amount applicable to the satisfaction of their claims if it were true that the payments to Déeuir, Dérouen, Hébert and David should be set aside, and the funds paid to them were held to come rightly under the grasp of executions to be issued in their favor. It is not claimed that there has been any mere pre-tence of payment to the parties named — there is no question of simulation or want of reality in the payment. The action of these parties is in the nature of revocatory action to undo the payments, and subject to the extent of their respective claims the amounts to be recovered. Granting that payments in money of his own debts by an administrator, made to the knowledge of his creditor with succession funds, could be set aside when, at the time of the payment, the administrator was not, to the knowledge of the creditor, insolvent — if at all (0. O. 2135), the united interest of the six plaintiff heirs in the improper payments would involve an amount below the appellate jurisdiction of this court. Matters have (so far as these heirs are concerned) gone beyond the point where the amount of the succession is the test of our jurisdiction.

Waiving, for the moment, that view of the matter, let us examine into the charges made against the four defendants. As against DécuirTit is charged that he, on March 15, 1893, retained and paid himself one amount of two thousand two hundred and ninety-one dollars and one of two hundred and fifty-one dollars, and on two dates not specified one amount of sis hundred and fifty dollars and another of seventy-five dollars, for debts due him by Norres personally, but what part Hébert took in the matter of these payment is not set out. Of Hébert it is charged he retained and paid himself the sum of one thousand nine hundred and forty dollars for debts due to himself and members of his family by Norres personally, but what part Déeuir took in the matter of those payments is not set out.

No specifications are made at all as to David and Dóroueu, or as to the part taken by them in the matter of the payments which were made.

The defendants, as we have seen, excepted to plaintiffs’ demand on the ground of misjoinder of parties, both plaintiffs and defendants. They deny the right of the plaintiffs to couple a charge or demand against anyone of them with charges or demands against other parties with whom they have no connection. We have examined the petition with reference to this exception. Its averments, as we have said, are of the vaguest character. There is no specification whatever as to how the various defendants became connected with each other — no detail of the facts from which solidarity of obligation between them can be claimed to have arisen, though there are a number of general allegations of fraud and wi’ong-doing,which are mere conclusions of law.

The only allegation we have found which would in the least charge privity between the defendants is that in which it is declared that “ the administrator had by illegal and wrongful agreements between himself on the one part, and Déeuir, Hébert, Dérouen and David, allowed said parties to have possession and use ‘ jointly ’ of the said moneys (moneys of the succession), they agreeing to give same to him whenever needed to meet claims against- the succession,” but in a later portion of the petition it is declared that “ all the credits in favor of Déeuir and all said charges made by Hébert were made with the consent of Norres, and in pursuance of illegal, tortious and fraudulent agreements ” between Norres and the said Déeuir and Héb=rt respectively, which said agreements and the said credits and charges thereunder, and each of them, were made known to, acquiesced in and consented to by the others of the above named defendants and made their contracts by agreement.

Plaintiffs, even in their briefs, have not attempted to explain to us what the original relations of the four defendants were to the administrator and as between themselves — how and in what manner they became connected with each other and what the theory of their case is. ■

We think that the allegations made as to a “joint use” by the defendants of succession funds is simply a legal deduction drawn by the plaintiffs themselves from a state of facts not disclosed.

We do not thick it permissible for the defendants to be joined in this suit under such sweeping indefinite allegations as plaintiffs have made. If it were right and proper that any particular defendants should be held in court, it would be impossible for us to say which particular defendant should be selected.

• For the reasons herein assigned the judgment appealed from is hereby affirmed.

Bkeaux, J., takes no part.

ON Application bob Reheabing.

Miller, J.

Our decision in this ease appears to have been misunderstood. We held there was a misjoinder. The allegations, it seems to us, were not adapted to the relief available to the heirs and creditors against an insolvent administrator. The decree does not, in our opinion, preclude the plaintiffs as sureties from their action to obtain indemnity from their principal, nor the heirs from any action they may have as creditors.

With this restatement of our opinion, and consequent reservation in the decree, the rehearing is refused.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 12,449.
    State of Louisiana vs. Theodule Ardoin et al.
    A person may be charged as principal and accessory before the fact to the crime of arson in different counts of the same indictment. And the prosecution -will not be compelled to elect upon which count it will proceed. '
    Where alibi is a defence the proper charge is that the evidence in support of it should be considered in connection with all the other evidence in the case, and if, on the whole evidence, there is reasonable doubt of the guilt of the accused he shou-cl be acquitted.
    It is error to instruct that the burden of proof is upon the accused-to establish an alibi bj a preponderance of evidence.

      Ahbi is not a defence within the accurate meaning of that word, but a mere fact shown in rebuttal of the State’s evidence.
    While a merely inaccurate-or incomplete instruction maybe cured by subsequently supplying the defect or accurately stating the law, an absolute rajis- , statement of the law is not cured by a correct statement elsewhere in the charge. ...

      The trial judge should not argue the law o£ a ease in the charge to the jury. He should coniine himself to a statement and explanation of the law and the rules of its applicability.
    APPEAL from the Eleventh Judicial District Oourt for the Parish of St. Landry. Dupré, J.

      M. J. Cunningham,, Attorney General, and B. E. Lee Garland, District Attorney, for Plaintiff, Appellee.
    JS. B. Du Buisson and John N. Ogden for Defendant, Appellant.
    Submitted on briefs April 3, 1897.
    Opinion on original hearing handed down April 12, 1897, affirming decree of the District Court.
    A rehearing was granted May 10, 1897.
    Argued and submitted June 19, 1897.
    Opinion handed down June 25, 1897.
   The opinion of the court on rehearing was delivered by

Blanchard, J.

The Judgment appealed from having been affirmed, a review of the ease, on the application for rehearing, induced the court to grant the rehearing; and now, on a further consideration, we have become satisfied of the incorrectness of some of the views expressed in our former opinion relating to the law governing the defence of alibi.

We now hold that it was error for the judge a quo to charge that:

It is obviously essential to the satisfactory proof of an alibi that it should cover the whole of the transaction in question, so as to render it impossible that the prisoner could have committed the act; it is not enough that it renders his guilt improbable merely.”

It was also error to charge that—

“If, therefore, the proof of an alibi does not outweigh the proof that he (the defendant) was at the place where the crime was committed, it is not sufficient.”

And it was additional error to charge that—

“ When the defence is that of an alibi the law casts the burden upon the defendant to reasonably satisfy the jury that he was elsewhere. at the time of the commission of the offence. The rule of law, as applicable to the defence of an alibi, does not require of the defendant to reasonably satisfy the jury of his exact whereabouts every moment of the time necessary to cover the period when the offence was committed, but he is required to prove such a state of facts or circumstances as to reasonably satisfy the jury that he was elsewhere than at the place where, and the moment when, the offence was committed.”

Where alibi is a defence, the proper charge is, that the evidence in support of it should be considered in connection with all the other evidence in the case, and if, on the whole evidence, there is reasonable doubt of defendant’s guilt, he should be acquitted.

It is error to instruct that the burden of proof is upon the accused to establish an alibi by a preponderance of the evidence. Beck vs. State, 70 N. W. Rep. 498; Casey vs. State, 68 N. W. Rep. 643; Gravely vs. State, 57 N. W. Rep. 751.

In State vs. Reed, 62 Iowa, 40, it was held that alibi is not a defence within any accurate meaning of that word, but a mere fact shown in rebuttal of the State’s evidence.

The setting up of an alibi does not change the presumptions and burden of proof, and if because of it, or anything else, the jury are not satisfied beyond a reasonable doubt of the guilt of the accused, they must acquit. Bishop’s New Criminal Procedure, Sec. 1066.

Whatever the accused brings forward in denial of the allegations, or of the proofs which the prosecution has adduced, the burden still remains on the State, and it never shifts to him. Ib., See. 1049.

The charge to the jury in its different parts should not be conflicting, and while a merely inaccurate or incomplete instruction may be cured by subsequently applying the defect or accurately stating the law, an absolute misstatement of the law is not cured by a correct statement elsewhere in the charge. Beck vs. State, 70 N. W. Rep. 498; Barr vs. State, 63 N. W. Rep. 856.

The errors of the court a qua, pointed out above, being of the character last mentioned, could not be cured by what the judge subsequently charged as set forth in our original opinion.

It is, therefore, ordered that the judgment of this court hereinbe-fore rendered be set aside, and it is now ordered and decreed that the verdict and sentence appealed from be annulled, avoided and reversed, and that the case be remanded to be proceeded with according to law.

Miller, J. I concur in the decree.

Nicholls, O. J., absent; ill.


author: Watkins, J.

text:
    No. 12,498.
    State of Louisiana vs. Montgomery Williams.
    That a person who is tendered as a petty juror states that he has formed or expressed an opinion with regirdto the guilt or innocence of an accused from a conversation held with his brother, who was a member of the jury who previously tried and convicted him on the same indictment, is not disqualifying, as the information thus imparted was hearsay merely.
    A PPEAL from the Twentieth Judicial District Court for the Parish of Assumption. Guión, J.

      M. J. Cunningham, Attorney General, and G. A. Gondran, District Attorney (John Marks of Counsel), for Plaintiff, Appellee.

      Pugh & Pugh and Howell & Martin for Defendant, Appellant.
    Submitted on briefs May 1, 1897, on the original hearing.
    Rehearing was granted May 31, 1897.
    Argued and submitted on rehearing June 19, 1897.
    Opinion handed down June 25, 1897.
    Statement.
    On September 23, 1898, Montgomery Williams, the accused in this case, was indicted by the grand jurors oE the parish of Assumption, charged with having murdered one Severin Frank on the 4th day of July, 1896. On September 80, 1896, he was duly tried and found guilty of manslaughter. On the 5th day of October, 1896, a motion for a new trial was filed on the ground that .one of the jurors had separated from the others during the trial of the case; for this reason a new trial was granted.
    On March 24, 1897, the accused was again tried and this time for •manslaughter under the same indictment, and was again found guilty of manslaughter and was sentenced to ten years’, imprisonment at hard labor in the State penitentiary.
    During the trial of the case several bills-of exception were reserved. ¡
   The opinion of the court was delivered by Nicholls, C. J., and banded down May 10, 1897.

The first bill reserved was to the ruling of the court on the challenge for cause of Anatole Hebert, one of the jurors drawn from the regular panel.

The bill of exception, as presented to the court, alleges that the juror on. his voir dire said that he had formed an opinion, which was a fixed one. The able and impartial judge of the lower court, before signing the bill, added that he did not remember that the juror had said that his opinion was a -fixed one, but that if he did he could not have meant to convey the meaning of what the words imply, as he had answered the judge that he could try the case impartially.

. The defendant prosecutes this appeal. '

Application e’or Rehearing.

The opinion of the court was delivered by

Watkins, J.

It appears from the oral argument, as well as from the printed briefs of counsel on each side of the case, that the principal, if not the only question, which is agitated now is that of the legal qualification of Anatole Hebert to have served upon the jury; and the record and opinion show that the defendant, Williams, was first tried upon an indictment for murder and found guilty of manslaughter, and upon a trial afterward on the charge of manslaughter he was convicted and sentenced.

It further appears that when Anatole Hebert was tendered as a juror, the trial judge held him to be a competent juror, upon an examination on his voir dire, and the defendant’s counsel was forced to challenge him peremptorily; and that on that account, and in consequence of the judge’s ruling, his peremptory challenges became exhausted and he was necessitated to submit to objectionable talesmen being sworn as jurymen.

The ground of the disqualification of Anatole Hebert was that in the course of his interrogation he stated that he had conversed with his brother, Ignaee Hebert, about the case, some ten or fifteen minutes, he having been one of the jury who tried the defendant on the indictment for murder and found him guilty of manslaughter; and that from what he had heard his brother say he had formed an ppinion which he still entertained.

But it also appears from the record as well as the opinion that, in reply to questions which were propounded by the court, he had never discussed the facts of the case with any of the witnesses, nor heard any one of them give a version of the case; and that in spite of what he had heard his brother say, he could entirely discard from his mind any impression it may have created and “ try the case according to the evidence as given to (him) * * * and. that alone and the law as (he may) hear it from the court.”

The foundation of the disqualification of a person for service as a juror is that he has formed an opinion as to the guilt or innocence of the accused whom he would be called upon to try, and (he question arises as to how he could form an opinion as to his guilt or innocence without having ascertained from some source the character of evidence which was to be brought before the jury in the course of the trial.

If Hebert had conversed with the witnesses who were to be produced on the trial; or he had heard their statements made to others; or he had heard them give in their evidence on a former trial; or perhaps he had read in a newspaper what purported to have been a full report of the testimony of the witnesses as having been adduced in the course of a judicial investigation — it might be said with confidence that a deliberately fixed opinion based thereon would have rendered him incompetent, and, therefore, a proper subject for a challenge for cause. But he only heard the version of the facts as given by his brother, who served on the former trial. At most that statement was in the nature of hearsay; and it is notan unreasonable presumption that any impression which same might have created upon his mind would have yielded to the evidence when adduced if it had proved of a different character.

It appears to our minds that this was the tendency and evident object of the interrogation of the trial judge, and that it was the manifest purport of the juror’s reply thereto.

It has been settled by repeated adjudications of this court that it is only a fixed and settled opinion, founded upon a fair statement and knowledge of the facts, that is disqualifying.

In State vs. Farrer, 35 An. 315, it was held that “the opinion which disqualified a juror is a fixed, deliberate and determined one which can not be changed.”

And very much the same thing was said in State vs. Dorsey, 40 An. 739, affirming State vs. Farrer and the court employed this expression, viz.:

“ The opinion of the juror in question may be said to have been a fixed or decided opinion, but not an unyielding and determined one. It is not pretended — judging by the recitals of the defendant’s bill of exceptions — that the opinion of the juror was formed from hearing the witness’ testimony or statements and it must therefore have been founded upon rumor and could not have been á determined opinion, such as would be disqualifying.”

Much the same is true of hearsay statements of persons not under oath, such as the representations which were made to Anatole Hebert by his brother, after the first trial was completed and his connection with the ease was at an end — however honest and conscientious the representations may have been.

The opinions cited are in keeping with those expressed in State vs. DeRance, 34 An. 186, and in State vs. Dugay, 35 An. 327, in which a careful review of adjudicated cates was made.

And those expressions are in accord with the opinions of the most approved text writers.

For instance, one author says that the proper inquiry is as to the nature and strength of the opinion and not its source. Proffatt on Jury Trials, Secs. 186 and 187.

But the most complete disquisition on the subject which has come under observation is that of Mr. Seymour D. Thompson in his excellent treatise on juries, from which we make the following extract, viz.:

“The character of opinion which will form a subject of challenge for principal cause has been variously stated. Thus, it must ‘ be fixed and settled’ (Schoeffler vs. State, 3 Wisconsin, 823; People vs. King, 27 Cal. 507); fixed and absolute’ (People vs. Bodine, 1 Den. 308; State vs. Howard, 17 N. H. 192); ‘ fixed and determined ’ (Staup vs. Commonwealth, 74 Penn. St. 458); ‘ fixed and positive’ (Rafe vs. State, 20 Ga. 60); ‘ decided ’ (Oslander vs. Commonwealth, 3 Leigh, 780); ‘ substantial ’ (Sprouce vs. Commonwealth, 2 Virginia Cas. 375; Jackson vs. Commonwealth, 23 Gratton, 919); ‘deliberately formed’ (State vs. George, 8 Rob. 535; State vs. Brown, 4 An. 505; Wright vs. State, 18 Ga. 383).” Thompson & Merriam on Juries, Sec. 211.

The author then remarks that, “ of course all of these terms are intended to convey one and the same idea;” and in proof of this he cites the case of People vs. Stout, 4 Park, Cr. R. 117, and also State vs. Kingsbury, 58 Maine, 238, in which all of the foregoing terms, substantially, are employed as being convertible, viz.:

“This,” the disqualifying opinion, it is well settled in numerous cases, must be a fixed, absolute, positive, definite, settled, decided, unconditional opinion. The rule is, uniformly, laid down by the use of one of these words, or words of equivalent force. A conditional, contingent, hypothetical, indeterminate, floating, indefinite, uncertain opinion will not do,” etc. Thompson & Merriam on Juries, Sec. 211; see, also, State vs. Hugel, 27 An. 375; State vs. McGee, 36 An. 206; State vs. Coleman, 27 An. 691; State vs. Ford, 37 An. 443; State vs. Revelles, 35 An. 302; State vs. Vines, 34 An. 1073; State vs. Birdwell, 36 An. 859; State vs. Foster, 36 An. 877; State vs. Melton, 37 An. 77; State vs. Boyd, 38 An. 374; State vs. Ward, 14 An. 673; State vs. Caufield, 23 An. 148; Wharton’s Cr. Pl. and Pr., Sec. 651, citing the last two cases; to the same effect is State vs. Bunger, 14 An. 461; see, particularly, State vs. Johnson, 33 An. 889, as contrasted with State vs. Jackson, 37 An. 768.

Having studied the jurisprudence of this State on the question of the disqualification of jurors, and tested the same by the expressions of authoritative text writers, we are fully satisfied that Anatole Hebert was a competent juror, and that the trial judge committed no error in so, ruling.

It is therefore ordered and decreed that our former decree be set aside; and it is now ordered and decreed that the verdict, and judgment thereon rendered in the court below be affirmed.

Nicholls, O. J., absent; ill.


author: Watkins, J., Blanchard, J.

text:
    No. 12,388.
    State ex rel. J. M. Ferguson vs. Charles D. Caffery, Mayor of Lafayette.
    The constitutionality of Act No. 90 of the Session Acts of 1896 upheld.
    The authority for its enactment is derived from the terms of Art. 209 of the State Constitution, and the act is not within the restrictions of Art. 46 of that instrument.

      Quoad the purpose for which it was passed, the act is held to he a further and legitimate means of rendering effective the grant of power contained in Art 209 under which works of public improvement may be undertaken.
    APPEAL from the Seventeenth Judicial District Court for the Parish of Lafayette. DeBaillon, J.

      Joseph F. Walton and Henry R'enshaw for Plaintiff, Appellee.

      Charles D. Caffery, Defendant, in propria persona, Appellant.
    Argued and submitted on original hearing February 17, 1897.
    Opinion handed down April 12, 1897.
   The opinion of the court was delivered by Nicholls, C. J., and handed down April 12, 1897.

Watkins, J.,

handed down a separate opinion concurring.

Miller, J., concurring with Watkins, J.

The decree of the District Court was reversed

Rehearing granted May 10, 1897.

Submitted on briefs June 5, 1897.

Opinion handed down June 28, 1897.

The opinion of the court on rehearing was delivered by

Blanchard, J.

The town of Lafayette,-a municipal corporation in the State of Louisiana, was in need of waterworks and an electric light plant. The ordinary revenues of the town were inadequate for the procurement of these desirable improvements. Whereupon the the taxpaying citizens of the town took counsel together and de - cided to resort to the levying of a special tax as a means of raising the funds essential for the purpose mentioned. They found in Art. 209 of the Constitution of the State, and in Act No. 126 of the Acts of 1882 (carrying into effect said article of the Constitution), the authority for the levy of the special tax.

In accordance with the manner pointed out by the act of the. Legislature, they proceeded to the accomplishment of their purpose. A petition was addressed to the Mayor and town council setting forth the urgent public necessity of procuring a water supply for the, town and the means of lighting its streets; and declaring that the rate of ordinary taxation permitted by law was .insufficient for the purpose. It prayed for a special tax of five mills, annually for a term of teny.ears.'on the assessed valuation, of property in the town to meet the cost oí the construction and operation of the said improvements, and to this end the petition asked that a special election be held to take the sense of the property taxpayers of the town on the proposed increase of taxation for the purpose named.

This petition was signed by the requisite number of the taxpayers of the town. On receiving it the town council promptly acted. An ordinance was adopted ordering the special election and it took place on March 23, 1896. There was a unanimous vote in favor of the proposition. Thereupon the council passed an ordinance levying the special five-mill tax for ten years, to be extended annually upon the assessment rolls of the town.

The tax having been voted by the taxpayers and formally levied by the town council, the next step was to utilize its prospective avails to the end of securing the construction of the public improvements contemplated.

It seems that parties were willing to take the contract and trust to the tax for payment, provided it (the tax) could be put in funded form, i. e., negotiable bonds representing the tax, and redeemable with the proceeds of its collection.

In this form the contractors could more easily utilize the obligation resulting from the levy of the tax. That is to say, they could more readily raise money on bonds based upon the tax, with which to carry out the contract, than they could upon the incorporeal right to the tax as levied and extended on the assessment rolls. And the town authorities found they could more advantageously contract for the public improvements desired if permitted to merge the tax obligation into the form of negotiable bonds than they could by the mere pledge of hypothecation of the tax itself.

So it was determined to fund the indebtedness represented by the tax.

But, at the threshold, the authorities were met with the difficulty of the want of legal authority in themselves to issue bonds based upon the tax.

The Legislature of the State was about to convene and it was de - cided to petition that body to pass an act granting the necessary power in the premises.

Due public notice was given of the intention to apply for the passage of the act, and the applicátion was made.

Whereupon the General Assembly did enact a law entitled “An act to authorize and empower the city cpuneil of Lafayette, Louisiana, to issue bonds for the sum of thirty-eight thousand dollars, payable not later than ten years from the date thereof, to procure, construct and operate a waterworks and "electric light plant in said town, fixing the method of payment,” etc., being Act No. 90 of 1896.

Invested by this act with the authority to issue the bonds, the town council entered into an agreement and contract with the relator by which the latter obligated himself t6 construct the public improvements referred to, according to certain plans and specifications adopted by the council, and to receive in payment therefor bonds of the corporation in the aggregate amount of thirty-six thousand dollars, to be delivered in instalments of ten thousand dollars each, as the work progressed, and a fourth and last instalment of six thousand dollars thirty days after the work had been completed, tested and accepted.

The contract having been signed and the relator ready to proceed with its execution, another ordinance was adopted by the town council authorizing and directing the mayor, who had been named in the act of the Legislature as the official to perform that duty, to sign the lithograph bonds of the corporation and to.issue the same to the relator as provided for in the contract.

This ordinance was promptly vetoed by the mayor on the ground that the act of the Legislature authorizing the issuance of the bonds is unconstitutional.

Thereupon, by unanimous vote of the council, the ordinance was passed over the mayor’s veto, and this was followed by the declaration of the mayor, in open session, that a two-thirds vote of the council having been east therefor, the ordinance was adopted notwithstanding the veto.

Still, the mayor persisted in his refusal to .sign and issue the bonds.

This suit was then instituted to compel by mandamus his performance of this duty.

In his answer the mayor admits’his refusal to sign and issue the bonds, and justifies the same on the ground that the town of Lafayette is without authority, under its charter and the general statutes of the State, to issue bonds for electric lights and waterworks or for any other purpose whatever. He sets up that Act 90 of the acts of 1896 in effect amends the charter of the corporation, and moreover confers on it a special right or privilege by legislation local in its application, in direct contravention of the provisions of Art. 46 of the Oonstitution. He prays that the act be declared unconstitutional, null and void, and that the writ of mandamus be denied.

From a judgment in the court below making the writ peremptory and ordering him to sign and issue the bonds, the mayor appeals.

The judge a quo did not pass upon the constitutionality vel non of Act 90 of 1896 placed directly at issue by the answer of the mayor. He held that the ordinance of the town council directing the mayor to sign and issue the bonds having been passed over his veto, he (the mayor) was without further reason to object to the performance of that duty. Also that the act of the Legislature assailed having been passed at the solicitation of the mayor and council, they can not be heard to allege its unconstitutionality.

The constitutionality of this act having been squarely put at issue by the respondent, we think it should have been met in the judgment rendered below.

If the act be constitutional, bonds such as it contemplates should be signed, even though there be force in the two grounds upon which the judge a quo based his decree. It is to the interest of the public to have a decision upon the constitutionality of the enabling act.

This much of the controversy, at least, should be settled and the pleadings invite its settlement.

The contention of the respondent is .that Act 90 of 1896, under which it is proposed to issue the bonds, is unconstitutional because in effect amending the charter of the town, and because conferring a special right or privilege on the corporation by special or local legislation.

Can this act be regarded as one amending or extending the charter in the sense of Art. 46 of the Oonstitution? Or is it open to the objection that it confers a prohibited special right or privilege? We think not.

Suppose the Legislature, in enacting Act 126 of 1882, to make effective Art. 209 of the Oonstitution, had added another section authorizing parishes and incorporated towns to issue evidences of debt, such as negotiable bonds, based upon and representing the special taxes voted in aid of works of public improvement, the bettei; to utilize and make available such tax obligations, could it be urged against such clause of the law that it, in effect, amended the chary ters of all the cities and towns in the State by adding a new and important power not. hitherto possessed? Clearly not. It would not be considered at all in the light of an amendment to existing municipal charters.

It would rather be held to be a further, and legitimate means of rendering effective the grant of power contained in Art. 209 under under which works of public improvement can be undertaken.

If this be so, then neither can the grant of this authority in a special act to a particular municipality be regarded as Amending the charter of such corporation. It is only a temporary power extended for a given purpose, the execution of which exhausts the power; a power not to issue bonds generally, but to issue bonds in aid of a particular purpose, that purpose being already permitted by Art. 209 of the Oonstitution.

It follows that such grant of authority in a special or local law must be upheld unless it can be-shown that the Legislature is without authority under the Oonstitution to enact special or locál laws for such purpose and may do so only by general statute.

. And this brings us to the consideration of Art. 46 of the Oonstitution and to the inquiry if a local or special law for such purpose is prohibited by said article.

We have shown that the twelfth paragraph of Art. 46, which reads: “Creating corporations, or amending, renewing, extending or explaining the charter thereof,” does not apply, for the act under review can not be regarded, in any true sense, as one amendatory of the charter of the town of Lafayette, within the meaning of this paragraph.

The only other paragraph of the article that need be considered in this connection is the thirteenth, which reads: ‘ ‘ Granting to any corporation, association or individual any special or exclusive right, privilege or immunity.” It seems clear'that corporation,” as here used, means private and not public or municipal corporations. Its connection in the text with the words association or individual” shows this.

The General Assembly shall not pass any local or special law “ granting to any (private) corporation, association or individual any special or exclusive right, privilege or immunity.”

This is also apparent from a consideration of the paragraph immediately preceding it, which plainly refers to municipal corporations, and in which the framers of the Constitution inserted all the prohibitions intended to affect such corporations — proceedings in the paragraph following to deal with private corporations.

Not all local or special laws are prohibited by Art. 46, but only such as are clearly within its terms. Local or special laws not within its terms may be enacted on publishing notice of intention to apply therefor, as set forth in Art. 48 of the Constitution.

If Act 90 of 1896 be a local or special law, then it is one of those referred to in the article of the Constitution last mentioned, and, therefore, constitutional and valid. It authorizes the contracting of no debt on part of the corporation of Lafayette. The debt had already been authorized by vote of the taxpayers and contracted by the town council pursuant thereto. All the act of the Legislature did was to authorize the corporation to put this debt in such shape that it could be utilized to greater advantage in securing desirable municipal improvements.

Under its terms the town of Lafayette may legally issue bonds to an amount within the aggregate sum of the tax voted in aid of the public improvements hereinbefore mentoned.

Holding that bonds as contemplated by Act 90 of 1896, based upon the special tax of five mills voted by the taxpayers of the town and levied by the town council thereof, and payable principal and interest out of the proceeds of said tax, may be lawfully issued, we express no opinion as to the particular kind of bonds that may be thus issued in respect of the recitals thereof — this not being a matter of contestation between the p -rties to this litigation.

For the reasons herein assigned, it is ordered that the jndgment hereinbefore rendered by thi3 court be set aside, and it is now ordered and decreed that the judgment appealed from be amended as follows:

That the mandamus prayed for be made peremptory, and that Charles D. Oaffery, mayor of the town of Lafayette, be and is hereby required and commanded to sign in his official capacity the bonds of the corporation of Lafayette, authorized by Act No. 90 of the acts of 1896, prepared in fulfilment of its requirements as interpreted and expounded by the opinion herein rendered, and that as thus amended the said judgment be affirmed — costs of appeal to be paid by relator.

Milleb, J. I concur in the decree.

Nicholls, C. J., absent; ill — took no part in case on rehearing.


author: Watkins, J. Blanchard, J.

text:
    No. 12,547.
    State of Louisiana vs. Victor Pierre.
    An Information charging llie defendant with-having committed the crime of petit larceny must be died or presented to the court'within one year nest after the offeneo shall have been made known to a public officer having the power to direct the investigation or prosecution; and if It appears from the rt cord that this provision of law has not been complied with, and the information fails to negative prescription cn its face, the plea of the. defendant urging the bur of the slatute will prevail.
    After a decision by this court on a case as presented, the prosecution, no moro than the accused, can be heard to set up as grounds for rehearing the incompleteness of the record.
    A PPEAL from the Twenty-second Judicial District Court for the ** Parish of Plaquemines. Hingle, J.

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

      James Wilkinson, for Defendant, Appellant.
    Submitted on briefs June 5, 1897.
    Opinion handed down June 14, 1897.
    Rehearing refused June 29, 1897.
   On Motion to Dismiss Apteal.

The opinion of the court was delivered by

Watkins, J.

The motion assigns, that the record discloses neither motion to quash, motion for new trial, nor motion in arrest of judgment; and, further, that it contains no bill of exceptions to any ruling of the trial judge, and that, as a necessary consequence, the defendant was without right to appeal.

But it appears from the record that on the day previous to the one on which the motion to dismiss was filed, defendant’s counsel filed a special assignment of errors apparent on the face of the record to the effect (1) that the crime charged in the indictment was barred by the limitation of the statute at the lime same was presented; and (2) that it affirmatively appears by the record that the defendant was never arraigned, nor ever personally present at the time of any pretended arraignment.

In the presence of this assignment the motion can not prevail, as the defendant is entitled to be beard on those questions of law, notwithstanding they are for the first time raised by an assignment of error in this court. State vs. Balize, 38 An. 542; State vs. Hanks, 38 An. 468; State vs. Behan, 20 An. 389; State vs. Morel. 20 An. 402; State vs. Krepple, 20 An. 402.

The motion is denied.

ON the Merits.

■ The accused is appellant from a conviction of the crime of petit larceny and a sentence to seven months’ imprisonment in the penitentiary, relying on his assignment of errors of law which are alleged to be apparent upon the face of the record.

The first assignment of error is, that the crime charged against the accused was barred by the statute of limitation — Revised Statutes, Sec. 986 — at the time the information was found against him, and presented to the court a qua, the statute declaring that “ no person shall be prosecuted, tried or punished for any offence * * * * unless the indictment or presentment for the same be found or exhibited within one year next after the offence shall have been made known to a public officer having the power to direct the investigation or prosecution.”

The information was filed on the 12th of April, 1897, and it charges that the accused did on the 12th day of April, 1896, three pairs of shoes of the value of three dollars, and other articles of property belonging to one H. B. Turcan, wilfully and feloniously take, steal and carry away; and upon that recital the point is made by defendant’s counsel, that the information was not filed or presented to the court within one year next after the offence is alleged to have been committed.

From the recitals from the record just referred to that statement is manifestly correct — the full term of one calendar year having expired on the day previous to the filing of the information by the district attorney.

The language of the law is imperative, that “ no person shall be prosecuted, tried or punished for any offence ” — other than such as are particularly excepted — ‘ unless the indictment or presentment for the same be found and exhibited within one year next after the offence shall have been made known to a public officer having the power to direct the investigation or prosecution; ” and this court has no discretion in the matter, as the information was filed after the utile tempus had expired.

As there seems to have been no examination in the matter by the grand jury, presumably it was brought to the attention of the law officer of the State contemporaneously with the filing of the information; and as it does not negative prescription the plea must be sustained and the judgment reversed.

It is therefore ordered and decreed that the judgment and sentence be annulled and the defendant discharged.

Nicholls, 0. J., absent; ill.

On Application por Rehearing.

Blanchard, J.

Before this cause was submitted to the court for its decision the State failed to make any objection to the sufficiency of the transcript as sent up from the court below. No motion was filed suggesting a diminution or incompleteness of the record and invoking the writ of certiorari for correction of the same.

The only motion filed by the State was one to dismiss the appeal on the ground that the record presented no motion to quash, or for new trial, or in arrest of judgment, and no bills of exception to rulings of the court a qua.

The State thus acquiesced in the transcript sent up as showing the whole case as presented and tried below. Trial was had here on this-transcript and on the additional papers and briefs filed in the ease in this court. The motion to dismiss the appeal was found to be without merit, and on- the face of the record and the papers before us it was clear that the prescription of one year, brought to our attention in defendant’s assignment of error, must prevail. Accordingly, a decree was entered reversing the verdict and sentence and discharging the accused.

The State, in an application for. rehearing, suggests for the first time the incompleteness of the record upon which the case was tried here, advances this as grounds for rehearing, and asks that a writ of certiorari issue commanding the court below to send up a full and complete record of all proceedings had in the case there.

The allegation is' made that the true reeqrd would show the accused was informed against seasonably, and that the plea of prescription is therefore untenable. It is claimed that this is shown by a former bill of information filed within the year of the commission of the offence, which, while still pending, was substituted by the information upon which accused was tried, after which substitution there was entered a nol. pros, as to the original.

As a matter of sound practice, to which the State must be held as rigidly as parties accused are, we are constrained to hold that after a decision by this court on a case as presented, the prosecution can not be heard to set up as grounds for rehearing the incompleteness of the record.

Rehearing refused.


text:
    No. 12,549.
    State ex rel. I. J. Rudy vs. Hoyle Tomkies, Justice of the Peace, et al.
    Relief by cert'orarivrlM be denied in case tlie record discloses that relator has adequate redress by appeal,
    N APPLICATION for Writs of Certiorari and Prohibition.

      Thatcher & Welsh for Relator.
    Respondent Justice of the Peace in propria persona.

      Wise & Herndon for Plaintiff, Respondent.
    Submitted on briefs May 31, 1897.
    Opinion handed down June 19, 1897.
   Application eor Writs oe Certiorari,

The opinion of the court was delivered by

Watkins, J.

Relator is defendant in the suit entitled Lewis Oliff vs. I. J. Rudy, which is pending in the court of the respondent in the Fourth Ward of Caddo parish ; and his complaint is that he called up and disposed of said cause in the absence of the relator and his counsel — deciding the case against him without having heard him or his witnesses and in violation of the plain provisions of the law.

His contention is that after said cause had been several times continued it was set for trial on the 21st of April, 1897, at the hour of 9 o’clock A. M., and decided by him a few minutes after the hour specified, whereas he should have waited one hour after the time specified for the trial.

That soon after the respondent had thus unseasonably tried and decided the case against him, he appeared in court accompanied by his attorney and made objection to his course of proceeding as illegal, and after waiting until 10 o’clock he demanded that the case be called for trial, and the plaintiff not appearing, that same be dismissed as in case of non-suit, protesting that the said judgment had been illegally rendered and was absolutely null and void as to him.

His prayer is that a certified copy of said suit and judgment be brought up so that it may be examined to the end that the validity thereof may be ascertained; and, alleging that the said plaintiff is attempting to execute said judgment by the seizure and sale of his property, he prays for a like writ of certiorari to be directed to the constable holding the writ of execution so that he may be restrained from any further proceeding thereunder pen.dente lite.

In substance, the return of the respondent is that the aforesaid cause was set for trial on the day and at the hour designated, by consent of parties, same having been an hour of the day earlier than that at which he usually convenes his court for the transaction of business; and that the particular hour designated was selected in order to better suit the convenence of plaintiff’s counsel, who had an important business engagement in the District Court at the hour of 10 A. M. of the same day.

That this reason having been assigned by the plaintiff’s counse for the fixing of the cause for trial at 9 o’clock A. m. on the 21st of ' April, 1897, and his statement having been accepted and agreed to by the counsel of the defendant, in the presence of the respondent and in open court, he (respondent) fixed the case fox- trial on the day and at the hour specified, in pursuance of this agreement of parties; and, that being influenced by said consent and agreement, he made a note of the fixing of the case on bis docket in accordance therewith.

That feeling impressed with the understanding and agreement of the parties; that the case would be called promptly at the time appointed, he paid a visit to the defendant’s attorney’s office on the morning of the day fixed for the trial and saw and conversed with both the defendant and his attorney on the subject, and advised them of his intention to call the case for trial at the hour appointed anil requested them to be present; and that the plaintiff and his counsel having appeared promptly and demanded that the trial be proceeded with, he did so proceed with the trial and rendered judgment against the defendant by default after having waited twenty-five minutes for the defendant to appear.

. On this statement of the question before us, the only matter of law to decide is whether the respondent should have waited for one hour after 9 o’clock before proceeding to hear and adjudge the aforesaid cause; or did he have the legal right to proceed and decide the-case as he did?

The complaint of the relator is that the respondent summarily tried and decided the cause against him, “ having refused to hear (him) or his witnesses ” in the sense of C. P. 857; and his counsel points out the language of 0. P. 1085 as supporting that proposition.

The provision of the latter article must be interpreted with the-one which immediately precedes it.

That article (1084) says that “i/ both parties are ready to try the cause the judge may proceed to the hearing, otherwise the justice-shall fix such a day and hour as he thinks proper, allowing sufficient time to the parties to summon their witnesses if it be necessary.

The following article — the one relied upon by the counsel for the relator — declares that “ if at the time fixed for the hearing of the cause one of the parties fails to appear, the justice, after the lapse of an hour * * if it be the defendant (who makes default) * * shall proceed to hear the plaintiff’s testimony, and if he find the claim to be well founded he shall grant a judgment by default against the defendant,” etc. O. P. 1085.

. In our opinion, the terms of the latter article, “if, at the time-.-fixed for the hearing of the cause,” relate to the time fixed by the justice as stated in the preceding article — i. e., when one of the parties being absent the justice of his own motion sets another day for the trial; but we are equally of opinion that it has no application to-a case like the instant one, when the justice fixes the cause for trial on'a day .in the future ,in pursuance of an agreement and consent of the parties.

The manifest reason for the provision of the law that the justice shall wait one hour after the time he shall, on his own motion, designate for the trial, does not exist in case the parties shall consent to and agree upon a day, which he fixes accordingly.

Oounsel cite with confidence and rely upon the decision of this court in State ex rel. Montague vs. Coquillon, Justice of the Peace, 35 An. 1101, as sustaining his contention; but a reference to that opinion discloses that the day of trial was fixed by the justice on his own motion, and that the defendant appeared in court and asked for time to prepare his answer and was refused. That thereupon the defendant retired and sought the - advice of counsel, by whom an answer was prepared and presented to the court within less than one hour after the time appointed for the trial; and upon its presentation the defendant and his counsel were informed by the justice that it came too late, as the cause had been tried and judgment rendered against him.

The difference between that case and the instant one is striking in the fact, that in the former the ease was not fixed by consent, while in the latter it was fixed by an agreement of parties.

Hence that decision is applicable.

But there is still another important distinction between the two cases, in that the cause dealt with in the former opinion was an unap-pealable one, whilst the one we are dealing with is appealable to. the District Oourt of Caddo parish, to which relator can resort for relief.

But relator’s counsel refer us to that provision of law which declares that “ all appeals from judgments rendered by justices of the ■peace shall be tried in the appellate courts de novo,” etc. C. P. U29.; and insists that an appeal would not prove an adequate and efficacious remedy, as he was not afforded an opportunity of filing an answer and a reconventional demand in the justice court, and would not be permitted to do so in the District Court on appeal — it not being permissible to file new. or additional pleadings in the appellate court.

' In our opinion, that is too narrow and restricted a view to be taken of that article.

Indeed the question was decided just the other way in Saunders vs. Ingram, 5 N. S. 647, in the course of a decision relative to an appeal from the old parish court to the District Court; and in the course of their opinion the court said :

“An appeal from a parish to a District Court authorizes an examination of the case de novo, and either party to the suit may, by leave of court, amend his pleadings, so as to bring the merits fairly before the appellate tribunal.
“ If no amendments be made to the pleadings the trial is to proceed on them as they have been made in the court of the first instance,” etc.

A trial of the case on appeal from the justice to the District Court is on a parallel with that from the old Parish tothe District Court, and hence it is subject to a like interpretation.

And it is a common practice for judges to permit suitable amend - ments to the pleadings prior to the commencement of a trial, and even afterward, if the purposes of justice may be thereby subserved.

In this case the right of relator, as defendant, to have his pleadings amended in the District Court on appeal, is undoubted, for the reason that the transcript furnished by the respondent shows that the answer and reconventional demand which he proposed to file in the cause was partly prepared and written on the docket of the respondent prior to the time the trial was fixed the last time, and that same had not been completed because of an interruption in its preparation over which he had no control.

His right to a suspensive appeal is equally undeniable because of the effect of our restraining order pendente lite.

. Our conclusion is that the complaint the relator makes of the proceedings in the court of respondent are remediable by appeal, and consequently relief by certiorari must be denied.

It is therefore ordered, adjudged and decreed that our restraining order be set aside and the demands of the relator be rejected at his costs.

Nicholls, C. J., absent; ill.


author: Miller, J.

text:
    No. 12,527.
    E. M. Ragland, Sr., vs. St. Louis, Iron Mountain & Southern Railway Company.
    The car on the spur or side track in which men are employed loading it with heavy lumber should not be subjected to any contact with moving trains, at least without notice or warning tothe men thus employed; and if without such notice, one of the men is killed by the fall of the lumber dislodged and falling on him caused by the jolt incident to coupling the car in which the men are at work, with other cars, the railroad company will be responsible in damages. Pierce on Railroads, p. 376; Am. Digest, 1889, p. 3286; 32 Mo. App. 413.

      Tlie contributory negligence imputed to the men fornot laying the lumber in that method which It is claimed would have withstood the jolt and averted the accident, will not avail as a defence against the carelessness of the agents of the company in moving trains against the ear in which the men were employed and while they were at work; that carelessness causing the fall of the lumber and the death for which damages are claimed in this suit.
    /» PPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Benton, J., ad hoe.

      E. T. Lamkin for Plaintiff, Appellee.

      Potts & Hudson for Defendant, Appellant.
    Argued and submitted June 2, 1897.
    Opinion handed down June 14, 1897.
    Rehearing refused June 30, 1897.
   The opinion of the court was delivered by

Miller, J.

This appeal is by the defendant from the judgment for damages claimed by the plaintiff for the death of his minor son killed by lumber falling on him in one of the defendant’s cars, the son being engaged at the time of the accident in defendant’s service, and the accident due, it is charged, to the negligence of defendant’s agents.

The deceased with two others had been employed by defendant to transfer from the car of another company the lumber to be transported by defendant. The cars, one from which the lumber was to be transferred, and the other, that of defendant’s, into which the lumber was to be loaded, were placed together on the spur crack of defendant’s main line, and the deceased and his companions in the work were to receive and place in proper position in the defendant’s ear the lumber as it was passed to them from the adjoining car. "While thus engaged it became necessary to move the cars, accomplished by the switch engine of defendants attached to other cars moved so as to couple with the two cars, in one of which the deceased was at work. In making the coupling the jar caused the fall of the lumber which deceased and his companions had placed in tiers on either side of the car, on one side reaching to the top of the ear, on the other much lower, there being a passage way between in which the deceased was crushed by the heavy planks from the top of the higher tiers, dislodged by the jar and falling on him, inflicting the internal injuries from which he died. The testimony is, that when the deceased and his companions were put to work they received directions how to load the car. The companion of the deceased who escaped injury testified that he laid the lumber eight-inch plank on one side, the eighteen-inch plank on the other “stacked,” as the witness expresses it, “ in steps-like keeping it so it would be braced all the way up,” and had one tier plum up to the top and then coming down in steps. “We had,” he testifies, “ some extra wide plank we could not fit in the tier without its toppling over, and we put it down near the door on the other side.” Describing the fall and its result, the witness testified the lumber fell on deceased from his neck to his feet, scattered and spread all over him; he was pinned between two piles, the pile three feet high under him. Neither witness or deceased had ever done that kind of work before. The witness who directed the loading, of long experience in that business, testifies: “ There were two qualities of lumber eight-inch and twelve-inch. I put the twelve-inch on the west side, on the east the eight-inch; showed them (the deceased and his companion) how to do that, so as to get all the lumber in without any trouble; got them to put two feet of the twelve-inch lumber on this side, on the other two and a half feet high; told them they now knew how to do it and went away, not returning till after the accident,” which he describes thus: “ The twelve-inch plank was two feet high on the west side, and eighteen or nineteen planks of the eight-inch slipped right over and pinned the fellow.” The witness further testifies, when he left the car the lumber was all right (i. e., the loading), how it was after he can not say; and he states that if the loading had been in the proper method no accident would have happened by the “ bumping” caused by loading.

The reason for moving the two cars was to clear the public crossing, over which the spur line extended. It is claimed on behalf of plaintiff that the switch engine ran at a high speed to effect the coupling of the cars to which it was attached with the two cars; that there being a number of cars moved by the switch engine and the car from which the lumber was being unloaded intervening between the end car of the switch train, and that in which the defendant was engaged, that the jar causing the fall of the lumber was of unusual violence. There is testimony in the record to sustain defendant’s contention as to the speed of the switch engine. The testimony of the locomotive fireman on the engine and the switch-man who made the coupling, is that the coupling was light and the engine was run slow. We have given all the testimony on this branch of the case careful consideration, but the fact of controlling importance in our appreciation is that the coupling was made with violence sufficient to cause the fall of the lumber and kill the deceased while at his work.

It is urged with earnestness on behalf of defendant, that this accident was due to the carelessness of the deceased in loading the car with lumber to the top on one side and knee high on the other. A mass of testimony has been produced to show that lumber carried on railway cars is usually loaded so as to be level; that if loaded in this manner it could not have fallen, and hence the defence of contributory negligence, based on the method of loading of the deceased and the others engaged with him in the work.

It seems to us ordinary prudence would dictate that a car on a spur track in which men are employed in loading heavy lumber, passed to them from another ear, should not be exposed to any contact with moving cars; at least, not without warning to the men of the risk incident to such contact. In our appreciation the jolt necessarily attendant in coupling cars is apt to endanger the limbs or life of the men engaged in handling heavy lumber in the car subjected to the jolt. In this case the loss of the life of one of the men thus employed was the consequence of the non-observance by the defendant’s agents of that care which reason and the law enjoin on them. It is claimed the yardmaster or others charged with the movements of the cars had no knowledge the men were in the ear, and that they had closed the door of the car on one side so that they could not be seen. There is no testimony at all satisfactory the door was closed. If it was the indications of the two cars on the spur track and the passing of lumber from one ear. to the other in progress and open to the view of all was, we think, abundant notice to those on whom rested the obligation of care and the requisite observation for the proper discharge of their duties. Besides, the men had been put in the car to do the work by defendant’s agents, and that carried knowledge, actual or constructive, to all the railroad employees charged with the movement of the cars on the spur track. With the requirement of moving the train with prudence and care, so as to avoid such accidents as occasioned the death of the deceased, the record, in our opinion, shows a plain disregard of that duty by defendant’s agents. Pierce on Railroads, p. 376; Am. Digest for 1889, p. 3286; 32 Mo. App., p. 413.

We have, however, the defence of contributory negligence based on the manner the defendant and his associates in the work loaded the lumber. It should, it is insisted, have been loaded so as to be on a level, and it is urged that instructions to that effect were given to the deceased; testimony had been produced to show that is the usual method of loading lumber trains, and if thus loaded, it is claimed no jolt of the car could have caused the fall. It Is not clear to our minds that lumber of different dimensions to be laid as it came from one to the other car, could have been kept on a level at all times while being laid. The jolt came while the loading was in progress, not after it was completed. What the effect of the jolt would have been if the laying of the lumber had been completed in the manner begun is purely speculative. We have given the defence full consideration. We can not assume negligence in the loading by a test to be applied, if at all, not until the loading was completed. The proximate cause of the death was the jolt which came at the time when the deceased had a right to expect complete immunity from the danger that cost him his life.

There remains the question of damages. The deceased contributed, though in an inconsiderable degree, to the support of an aged father and a sister. The injuries from which deceased died caused him twelve hours of pain. We ñnd no place in this case for exemplary damages against a corporation for its servants’ neglect. Sedgwick on Damages, p. 671, notes at foot; Milwaukee, etc., R. R. Co. vs. Arms et al., 91 U. S. 494. The jury gave five thousand dollars; the court deciding the case after the verdict was set aside awarded two thousand dollars. Under all the circumstances we think the judgment should be increased to twenty-five hundred dollars.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and it is now ordered, adjudged and decreed that the plaintiff recover from defendaut twenty-five hundred dollars with costs.

Nicholls, C. J., absent; ill.


text:
    No. 12,499.
    State vs. John O’Neil.
    Tlie prohibition oí the erection or reconstruction in wood of buildings within what are termed the fire limits is within the scope of municipal government and recognized by the charter of New Orleans. Dillon on Municipal Corporations, See. 388, Act No. 20, of I8S2; Sec. 8, Act No. 45, of 1896; 42 An. 52.
    The city is authorized to impose fines for the violation of its ordinances. 1 Dillon on Municipal Corporations, See. 272; Acts 1877, Extra Session, Sec. 12; Act No. 45 of 1896, Sec. 93; 42 &n. 1113; 4 An. 278.
    APPEAL from the First Recorder’s Court of New Orleans. Finnegan, J.

      James J. McLoughlin, Assistant City Attorney, and Samuel L. Gilmore, City Attorney, for Plaintiff, Appellee.

      Lougue & Pomes for Defendant, Appellant.
    Argued and submitted May 13, 1897.
    Opinion handed down May 31, 1897.
    Rehearing refused June 29, 1897.
   The opinion of the court was delivered by

Miller, J.

The defendant appeals from the judgment of the First Recorder’s Court, imposing a fine of twenty-five dollars on the defendant for violating the ordinance of the council prohibiting the erection or repairing within what are termed the fire limits of the city, of any building, unless non-combustible materials are used in the work.

The ordinance is alleged in defendant’s answer to be unconstitutional, not within the competency of the city to pass, and is also assailed on the ground that it undertakes to create an offence, not a crime by any statute of the State.

In the argument on behalf of the defendant it is urged that the ordinance conflicts with the Fourteenth Amendment of the Constitution of the United States, forbidding the abridgment by State legislation of the privileges of citizens of the United States; guaranteeing to them the equal protection of the laws and protecting the rights of persons and property against interference, except by due process of law. In our appreciation, the ordinance is within the police power, and hence not in any conflict with the Fourteenth Amendment. The validity of municipal ordinances of this character has been of constant recognition. 1 Dillon on Municipal Corporations, Sec. 338, notes at foot; City Charter of 1882, Sec. 8, Sess. Acts, p. 21; Charter of 1896, Sec. 14, Sess. Acts, p. 53.

It is urged that the ordinance transcends the power of the city in respect to buildings within the fire limits. The power conferred by the charter is to prevent the erection of wooden buildings, and the reconstruction in wood of old wooden buildings within such limits. Act No. 20 of 1882, Sec. 8; Act No. 45 of 1896, Sec. 14. The ordinance prohibits not only the erection of wooden buildings, but the repair, except with non-combustible materials, of any building already erected within the fire limits. Leovy’s Ordinances, Arts. 129, 132 et seq. Our predecc ssors held that the prohibition of repairs to buildings was 3n excess of the power given by the charter. State vs. Schuchardt, 42 An. 52. But this limitation of the ordinance is of no pertinence in this case. The charge against the defendant is the erection or reconstruction in wood of a building within the fire limits. To that charge the defendant pleaded and the testimony is directed to that charge. The ordinance prohibiting the erection of wooden buildings, or the reconstruction in wood of buildings within the fire limits, is clearly within the power given the city by the charter.

The contention of the defendant that the ordinance creates an offence not recognized by any statute of the State, we think misconceives the purpose of the ordinance. It is a police regulation within the competency of the city, not an attempt to constitute a crime in any other sense than the violation of a lawful- ordinance. The decision cited-by defendant in this connection did not propose to punish the infraction of an ordinance in execution of any power conferred by the charter, but sought to create an offence not known to our statutes. State vs. McNally, 48 An. 1450.

It is urged the ordinance has been repealed by special permits to build or repair with wood within the fire limits. We do not appreciate that the repeal can be deemed implied by the special permits.

Lastly, it is urged that the city has no power to fine for the violation of the ordinance. Without such power the ordinance would be nugatory. The power to fine for the violation of a police regulation of the character of that in question here is, we think, conferred on the city and has been recognized by the courts. Act No. 131 of 1877 (Extra Session), Sec. 12; Act No. 45 of 1891, Sec. 73; 42 An. 1113 (State vs. Boneil); First Municipality vs. Devron, 4 An. 278; 1 Dillon on Municipal Corporations, Sec. 272, and authorities there cited.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be and it is hereby affirmed, with costs.

Nicholls, C. J., absent; ill.