text:
    No. 11,778.
    Waters Pierce Oil Company vs. Mayor and Board of Trustees of the Town of New Iberia.
    When the pleadings do not show an amount of appealable interest, to determine the amount, affidavits relating to the amount in dispute will be received.
    Where a particular thing is declared a nuisance by a municipal corporation, it is not necessary, nor is it required that the ordinance shall provide for an investigation as to the nature of the nuisance before an attempt is made to execute the ordinance, as this is a matter for judicial inquiry.
    The act No. 16 of 1839 conferred full and complete power upon the corporation of New Iberia to enact all needful police regulations, including those to regulate the storage of combustible and inflammatory substances.
    The regulation of the storage of petroleum and other inflammatory substances is not the taking of private property without due process of law, nor is it in restraint of trade.
    The ordinance referred to in the opinion is legal, constitutional and valid.
    APPEAL from the Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J.

      Foster & Broussard and Andrew Thorpe, for Plaintiffs, Appellees:
    No one shall be deprived of life, liberty or property, without due process of law. Art 14, Section 1, Constitution of United States; Art. 6, Constitution of Louisiana, 1879. The charters of municipal corporations within the State are the measure as well as the source of their powers. Major vs. Roth, 29 An. 261.

      The power to suppress nuisances must be construed so as to apply to cases of nuisances clearly so to the detriment of public health and public convenience, for otherwise the removal or abatement would be unlawful. Tissot et al. vs. Great Southern Tel. Oo. 39 An. 996.
    * * * And even if such power is expressly given, it is utterly inoperative and void, unless the thing is in fact; a nuisance. * * * The fact that a particular use of property is declared a nuisance by an ordinance of the city does not make that use a nuisance, unless it is in fact so and comes within the idea of a nuisance. Wood on Nuisances, Sec. 740.
    A public nuisance can not exist in acts which are warranted by law, even though the act complained of might, independent of the statute, be a nuisance. High on Injunction, verbo Nuisance, Vol. 1, p. 586.
    Nuisances per se are those which at all times and under all circumstances, and irrespective of their location and surroundings, are prejudicial to public morals, or are dangerous to life, or are injurious to public rights. Am. and Eng. Ency., verbo Nuisance, p. 937.
    So, if he has given his consent, either expressly or impliedly, to the erection of expensive works, he can not afterward enjoin their operation. * * * Am. and Eng. Ency., verbo Nuisance, p. 960 ; Note 1, in re Huhm vs. Shreve, etc.
    It is well settled that municipal authorities can not arbitrarily declare a thing a nuisance or destroy property which was lawfully erected — when such thing or property is not a nuisance per se— until this fact has beenlawfully ascertained. Further, that when the necessary power has been expressly conferred by the Legislature, it is inoperative and void, unless the thing is in fact a nuisance, or was erected after the passage of the ordinance and in defiance of it. * * * This fact must be first established by judicial adjudication.
    An injunction will lie restraining the city from interference with the use of property which has not been lawfully ascertained and declared a nuisance. Am. and Eng. Ency., Vol. 15, p. 1166 et seq., verbo Municipal Corporations.'

      Walter J. Burke for Defendants, Appellants:
    Although a corporation may have the right to sue, represented.by its president, still the authority and permission to him given to ñle a given suit must appear from the pleadings and proof.
    An injunction will not be granted by the District Court to restrain a municipal corporation from the enforcement of one of its ordinances, penal in its nature. The proper remedy is by appeal from the conviction. Hottinger vs. City, 42 An. 630.
    Municipal corporations generally, and more specially those empowered by their charter “ to make and pass such regulations, bylaws and ordinances as may be deemed necessary and proper to regulate and preserve the peace and good order of the town; to pass by-laws and ordinances in regard to disorderly conduct generally, or anything relating to the good government of said town; to impose such fines and penalties for a breach of their by-laws and ordinances and of public peace as they may think proper,” etc., may declare that a class of business has become a nuisance owing to the manner in which it is conducted or the great hazard to life and property accompanying it, and enforce its suppression. Dillon Municipal Corporations, Vol. 1, Sec. 374; Kennedy vs. Phelps, 10 An. 327; Mayor of Monroe vs. Gerspach, 33 An. 1011; 42 An. 483; 97 U. S. 659.
    The storing of highly inflammable materials in populous centres, in the midst of a large number of frame buildings, comes within the legal notion of a nuisance, and may be as such suppressed by the municipal corporation. Am. and Eng. Ency. of Law, Vol. 16, p. 955; Blanc vs. Murray, 36 An. 163.
    The fact that a person has long been engaged in a business before the adoption of an ordinance branding it as a nuisance is no de-fence against the enforcement of the ordinance.
    If the facts are sufficient to show a public nuisance the defendant may not show in defence that the business is carried on in the most approved style. Am. and Eng. Ency. of Law, Vol. 16, p. 931, Sec. 6, and notes.
    An ordinance suppressing a class of business as being a nuisance is not one in restraint of trade.
    Where the charter of the down gives the corporate authority the right to inflict penalties necessary to enforce ordinances, it need not prescribe specially the mode of trial. These are necessarily summary, and the mode of procedure within the magistrate’s discretion. State vs. Dunbar, 43 An. 836.
    Where one part of an ordinance is null, it will not vitiate the balance which is capable of standing without it.
    Argued and submitted April 24, 1895.
    Opinion handed down May 6, 1895.
   The opinion of the court was delivered by

McEnery, J.

There is in the record an affidavit of J. G. Broussard, the agent and manager of the plaintiff, do the effect that the business which the plaintiff has been ordered to move is worth considerably over two thousand dollars.

The motion to dismiss is denied. State ex rel. Daboval vs. Police Jury, 39 An. 759.

The town of New Iberia passed an ordinance declaring it to be “ a nu sanee for any person or persons to keep or store in any building or shed, or any other enclosure whatever, within the limits of the corporation, any explosives or other highly inflammable materials, dangerous to the safety of life and property, in any other quantity than that which may be necessary for the supplying of the ordinary or every-day usage, or the demands of retail selling business.”

Before the enactment of this ordinance, the plaintiff company, on its own property, within the corporate limits, had erected buildings and improvements in the way of large iron tanks of such thickness as to render them fire-proof and safe when exposed to great heat. All necessary precautions had been taken to shut off escaping gas. A written notice was served on the plaintiff company to comply with the ordinance.

The company applied for and obtained a writ of injunction, restraining the execution of said ordinance, on the grounds of the illegality and unconstitutionality of the ordinance:

1. Because it makes no provision for an investigation to ascertain if petroleum oil, stored in such tanks, is or is not a nuisance, and arbitrarily declares the storing of petroleum oil in the tanks, provided by plaintiff, a nuisance.

2. That the ordinance is ultra vires in that the charter of the town does not give power to the corporation to enact such an ordinance.

3. That the ordinance makes no provision for any charge, affidavit or trial of any one charged with violating it; is in restraint of trade, and its execution will deprive plaintiff of his property, without due process of law.

There was judgment for plaintiff, perpetuating the injunction, and the defendant corporation appealed.

That the ordinance makes no provisions for an accusation and trial does not concern the plaintiff, as the company was not proceeded against in order to impose any fine, forfeiture or penalty. Nor does the charge leveled against it, that it is in restraint of trade, concern the plaintiff, if the town had the authority and power to pass the ordinance. The loss of plaintiff’s business is but a necessary consequence of the unlawful act complained of.

That the ordinance of a municipality can not make that a nuisance which is, in fact, not one, is elementary. But even in cases where a particular thing is denounced by the municipality as a nuisance it is not required that the ordinance should provide for an investigation as to the fact, whether or not it is a nuisance.

The facts are disclosed on the trial, and the question of nuisance remains open until decided by the court. The courts are open to the author of the alleged nuisance, and therefore the proceeding by the town authorities to carry into effect its ordinance does not, in itself, constitute the taking of property without due course of law.

From an inspection of the ordinance it will be seen that it does not propose to take private property without compensation, and without due process of law, but only to restrain the private injurious use of property. It is within the power of a municipality to so regulate the use of property that it shall not be pernicious, and inflict an injury upon its inhabitants generally. Corpatt vs. Yonkers, 140 N. Y.; Dillon Municipal Corporation, par. 141.

The State can confer upon municipal corporations the power to establish police regulations. Cooley Const. Limitations, 148.

The act of the General Assembly, No. 16 of 1839, conferred full power upon the corporation to enact all necessary police regulations. This power, by Sec. 5 of the act, is only limited by the restriction that the ordinances shall not conflict with the State and Federal Constitutions.

The corporation, by its charter, was authorized to pass any ordinance “relative to anything whatever that may concern the police and good government of said town.”

“Municipal charters refer most questions of local governments, including police regulations, to the local authorities, on the supposition that they are better able to decide for themselves upon the needs as well as the sentiments of their constituents than the Legislature possibly can be, and therefore are more competent to judge what local regulations are important, and also how far the local sentiment will insist in their enforcement.” Cooley Const. Lim. 149, 150.

The preservation of the public health, the good order of the local community, the protection of the property of its citizens from the danger of fire, and the preservation of their lives from the danger of storing explosive substances in the limits of the corporation in thicMy populated localities, are matters of vital local interest, and are of such character as to invite local sentiment in provoking necessary legislation and its rigid and exact enforcement. Hence, in this case we find in the record a petition numerously signed by property owners “living in the vicinity of the Southern Pacific depot,” addressed to the Mayor and trustees of the corporation, calling their attention to the constant danger from fire from the oil tanks situated near the depot, and “that at any moment an accident may happen, whereby the oil contained in the tank may be ignited and all portions of the town adjacent destroyed by fire.”

The proof sustains the averments in the petition as to the security of the tanks from fire and the prevention of the escape of gas. But we know from the character and constituents of petroleum, as we know from the component parts of gunpowder, that it is a dangerous and inflammable substance, and in defiance of all precautions it will, at times, ignite. There are certain facts known to mankind that are accepted as true, and the record might be replete with evidence to contradict them, yet we would accept the experience of mankind in preference to the isolated facts cited in the record.

No amount of testimony would convince us that steam, electricity and gunpowder, and petroleum, are not dangerous. Due and proper precautions may, under certain conditions, render them harmless. But these conditions may relax, and at unexpected moments they may be let loose from restrictions, and burst forth with immeasurable power and energy. Therefore the legislation, in relation to these substances, is not to be controlled by the efforts to secure them from danger, when it is attempted to place them at designated points, where the least injury will be inflicted by accident.

In the ease of Fisher vs. McGuire et als., 1 Gray, 27, the Supreme Court of Massachusetts said: Gunpowder, an article quite harmless in a magazine, may be kept in a warehouse always exposed to fire, especially in the night; however secreted, a Are in the building would be sure to And it, and the lives and limbs of courageous and public-spirited firemen and citizens engaged in subduing the flames would be endangered by a sudden and terrible explosion.”

Notwithstanding that gunpowder is quite'harmless when stored in magazines, we venture the assertion that no city or town of size and importance permits large quantities to be stored in magazines within the city in thickly settled and populous neighborhoods.

We have not the least doubt, under the clause of the act of corporations quoted, the city of New Iberia had the power of regulating the mode of keeping and the sale of petroleum oil; that is, to prevent the storage of large amounts in a populated part of the city, and to require only such amounts to be kept in said localities as would meet the wants of the retail trade. Dillon Municipal Corporations, 3d Ed., par. 404.

This seems to be the object to be attained by the ordinance.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and R is now ordered that the writ of injunction obtained by plaintiff be dissolved and set aside, and his demand be rejected, with costs of both courts.

Mr. Justice Breaux dissents.


source: Caselaw Access Project

author: Breatjx, J.

license: Public Domain

text:
    No. 11,607.
    Mrs. Victoria Smart, Widow Boner, vs. Louisiana Electric Light Company.
    Two linemen were employed in lowering two wires from one arm of a pole to another just helow.
    One of the two was killed.
    iio one saw him at the moment.
    It was shown that it was safe for a man on a pole, being insulated from the ground, to handle one side of the circuit, but dangerous to touch both sides of the circuit at the same time, without rubber gloves, not defective. ,
    The lineman’s duty, it was shown, was to insulate wires found by him not insulated.

      Gloves were sent to the lineman who received the fatal shock by a foreman at the foot of the pole, who was a fellow workman of the lineman killed.
    The gloves were old and unsafe.
    The testimony is that it was the duty of the lineman to exchange old for new gloves, furnished free of charge, and to inspect them and keep them in good condition.
    The employer is not responsible for the dangerous state of the employment, if the danger is known to the employe, and the latter has accepted the employment knowing the attendant risks, and having an opportunity of guarding against them.
    The handling of live wires was a necessary part of the business. The testimony shows that the lineman should never touch more than one line at a time.
    It was dangerous to come in contact with the two live wires with gloves not in good order and condition.
    If the employe received a fatal shock through defects in the appliances left in his care by the employer, and which he was to inspect and keep in good order and condition, there is no ground of action against the employer.
    The employe voluntarily assumed the risks of the employment incurred through the defects of the gloves.
    A PPEAL from the Civil District Court for the Parish of Orleans. Theard, J.

      Percy S. Benedict, for Plaintiff, Appellant, cites Beach on Crim. Neg. 370; 21 N. E. (N. Y.) 1042; Woods’ Prac. Es. 654; 4 U. S. Appeals, 369; 8 S. R. (Ala) 776; Am. and Eng. Ency. of Law, Vol. 2, p. 652; 15 An. 663; 13 An. 397; 1 Greenleaf, 79; Am. and Eng. Ency. of Law, Vol. 14, pp. 869, 871, 909; 44 An. 1043; Id. 692; 41 An. 965; Am. and Eng. Ency. of Law, Vol. 16, p. 455.

      Farrar, Jonas & Kruttschnitt for Defendants, Appellees.
    Argued and submitted March 26, 1895.
    Opinion handed down April 8, 1895.
    Rehearing refused May 20, 1895.
   The opinion of the court was delivered by

Breatjx, J.

Plaintiff, personally, and as tutrix of her minor children, alleges that the negligence of the defendant company was the cause of her husband’s death.

He was a lineman in defendants’ company, and was lowering a pair of live wires on a pole at the corner of a street. He and an - other lineman had been directed to take down two alternating live wires from their position and place them below the other wires on the pole — that is, from one arm of the pole down to another.

The service is not necessarily dangerous.

The evidence explains that for the purpose of lowering a pair of live wires on a pole the lineman handles one wire at a time, and that he should not handle more than one wire.

The two live wires were near each other, not more than six inches apart.

The pole of wood when dry is an insulator safe to rest on while handling a single wire.

Dry wood is classed fourth amongst the insulators, being preceded by dry air, glass, porcelain and vitrified china.

It is in proof that there is no danger whatever in handling a single wire (one side of a circuit), while upon a wooden pole insulated from the ground, and that a careful lineman will not handle more than one line at a time. This is generally understood by all linemen.

But there is great danger in touching both the live wires and completing a short circuit.

While at work, lowering the lines from one arm of the pole to another just below, Clarence Boner, plaintiff’s husband, was not observed at the instant of the accident by those present.

A moment after he had received the fatal shock his body was taken down by his fellow workmen.

When he received the shock he had on rubber gloves.

He was a competent lineman.

A few moments prior to the shock the foreman of the party working at the pole in question directed the two men at work lowering the wire to wear gloves.

He at the same time sent up the gloves to the top of the pole where the men were at work.

The lineman Boner complied with the direction of the foreman.

The other did not; he trusted to his naked hand and received no injury, although he was handling the wire corresponding to that which was being handled by Boner.

The evidence shows that the linemen were to take care of their gloves and keep them in good condition and carry them in their belts for use when needed.

It is also shown that it was left to them to determine when to exchange an old for a new pair.

There are general rules applying especially to the relation of employer and employé; under these rules it is presumed that every person of average intelligence has knowledge of the destructive forces of nature. If the work he performs exposes him to danger from these forces he assumes the risk of the injury.

That every man of experieuce in handling wires when heavily charged with electricity will be taken to understand that he must use great prudence.

The authorities generally announce that if the servant has full and equal knowledge with the master that the appliances used are defective, and each is equally indifferent to the danger, they will stand on a footing of equality as to damages. Boswell, par. 212.

In the first place, however, it is the employer’s duty to be careful that his workman be not induced to work under the notion that the appliances are safe, when he knows or has reasonable ground to believe that they are dangerous.

On the other hand, it is the duty of every workman to execute the work with required care, and not expose himself to injury.

These being governing principles of the law of personal injuries, we take up first the charge brought by plaintiff against the defendant that the wires on which her late husband was working should (in electrical parlance) have been made dead.

The officer in charge of the operations of the plant testified that any lineman could order the opening of a circuit at the plant, in case of necessity. This testimony is uncontradicted. The record does not disclose that any such necessity was suggested by the lineman.

The principle announced on this point is that the employé who has the opportunity to avoid the danger will have no recourse for the injury. Boswell, p. 340, par. 204.

We are léd to infer from the testimony that it is not at all usual to open the circuit and deaden the wires while linemen are lowering wires as in this case.

In so far as relates to the insulation of the wire the plaintiff’s complaint is that it was not in proper condition.

The charge would have great force if brought by one not in the service of the defendant, as, for instance, in the case of Clements, 44 An. 692, who was not an employé, but an entire stranger to the defendant company, which was condemned to pay damages.

The testimony here informs us that where a linemau goes on a pole and finds a defectively insulated wire, it is his duty to repair the defect.

The fact that such is the duty of the lineman is not seriously ques - tioned.

The risk (under the circumstances), was one of those assumed by the employé. Boswell, 352, par. 208.

It is evident that this experienced lineman knew the danger.

We feel justified in the inference that the gloves used were unsafe.

This conclusion about the gloves renders it necessary again to review the facts on this point.

The gloves were furnished by the company without charge.

The gloves furnished by the company were insulating gloves, it is shown, that they had been in use a number of years, and such as are generally used at the present time. The lineman also had pliers, the handles of which most linemen insulate by winding tapes around them.

Under the company’s rules employés were directed to examine daily the appliances furnished them by the company, and in case of defect to return them to the storekeeper.

Plaintiff’s insistence is that these rules were not generally known to the linemen.

There is considerable variance in the testimony on the subject.

We believe that the brother of the deceased stated correctly in testifying that the defendant company did everything in its power to bring home to the linemen a knowledge of its rules.

Moreover, in answer to questions propounded, the electrical engineer in charge of the plant testifies:

Q. Whose business was it to inspect those gloves and keep them in good condition?

A. The linemen themselves who used them. * * *

Q. Was there any other method whatever by which the company could find out whether a lineman’s pair of gloves was in good condition or not?

A. No, sir, unless he came back with them.

An attempt was made to show that there were times when gloves could not be had. The preponderance of the evidence is to the contrary. ■

It is not in evidence that the wires were unusually near one to the other.

As we understand, there was no necessity of coming in contact wilh these two wires, even with gloves.

But the insistence is that he acted with ordinary care in putting on the gloves as they were sent to him by the foreman. It is not shown that the latter represented the employer; he had no authority to employ and discharge workmen.

His only authority was to direct the work at the pole, and to act as foreman of the laboring party. The gloves were not in his charge. They were picked up by him in the wagon at the time, and his direction to wear them was more advisory than anything else.

The other lineman, to whom, also, gloves were sent at the same time, did not wear them.

We have considered the grounds for a new trial. We do not think that they are sufficient to justify us in remanding the case.

It is not shown that the judge of the lower court exceeded the legal discretion with which he is vested in refusing the new trial.

The suitor must show clearly the discovery since the trial, and that he had used due diligence to procure the necessary evidence. In the absence of negligence, the application must fail.

Judgment affirmed.


author: Breaux, J.

text:
    No. 11,783.
    New Orleans City & Lake Railroad Company vs. State Board of Arbitration.
    The distinguishing features of the statute are that an investigation may be held •without the consent of all parties:
    On application of employers or employes, or the latter’s duly authorized agent.
    On notification from the Mayor, or a ^District Judge in the parishes, that a lockout or strike is seriously threatened.
    It devolves upon the board, in the first instance, to pass upon questions of regularity and compliance with the statute vel non, in those steps taken to bring labor troubles to its notice.
    The board is authorized to hear the parties; make inquiry into the causes of trouble, advise the parties, and keep a record of their decision regarding the causes of dispute.

      They are not bound in all things to decide according to technical rules of law that would possibly determine issues in a court of justice, but they are subject to the terras of the statute under which the board was organized, and they are bound to observe those broad rule^. of law and equity, without which no board of arbitration and conciliation can make a just decision.
    Objections upon grounds of irregularity must be urged before the board, and heard contradictorily with parties concerned, or their duly authorized representative s, prior to application to the courts to correct alleged errors.
    Apprehension that the conclusion and decision of the board will be erroneous is not ground for an injunction.
    Injunction will not issue for the purpose of controlling the action of public agents acting under legislative authority, unless irreparable injury is evident.
    PPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Denegre & Denegre for Plaintiffs and Farrar, Jonas & Kruttsehnitt for Intervenor, both Appellants:
    The power of this board of arbitration extends only to controversies between employer and employés. It has no power to entertain complaints made by persons who are not employés, and who have no written authority to represent a majority of employés.
    The board of arbitration is not a court, within the meaning of the Constitution, and therefore no certiorari will lie, nor can the supervisory powers granted to the Supreme Court by Art. 90 of the Constitution be invoked.
    The articles of the Civil Code and the Code of Practice on the subject of arbitration refer solely to judicial arbitration — that is, to arbitration of some question which is the subject of an existing lawsuit, or may become the subject of a lawsuit, and therefore they have no reference to the arbitration provided by the act of 1894, which is confined solely to questions which can not become the subject of a lawsuit.
    The boast of the law is that there is no wrong without a remedy; that the law guarantees, gives or recognizes no right which it can not or will not protect.
    There being no remedy in this case, except that by injunction, an injunction should be granted.
    Moreover, an injunction is the proper remedy. Art. 296 of the Code of Practice states that “Injunction or prohibition is a mandate obtained from a court by a plaintiff, prohibiting one from doing an act which he contends may be injurious to him, or impair a right which he claims.”

      “ The codal provisions of our practice touching injunctions are broader and more comprehensive than the rules of the Chancery Court.” Ernst & Co. vs. Waterworks Co., 39 An. 550.

      ic It is a settled principle that no inferior tribunal, whether it be a judge, an arbitrator, or other judicial or quasi-judicial person, ought to be allowed to proceed in the hearing of a case which such judge or arbitrator is, for any special reason, unfit or incompetent to hear.” Beddow vs. Beddow, Law Report, IX, Chancery Division, 93.

      M. J. Cunningham, Attorney General (E. Howard McCaleb and Haul L. Fourchy, of Counsel), for Defendants, Appellees:
    Act No. 139 of 1894, providing for a State Board of Arbitration, passed under the authority of Article 165 of the Constitution, is a lawful exercise of legislative power.
    The board created under said act can not be hampered nor interfered with in its proceedings by a writ of injunction sued out in the Civil District Court before the rendition of its decision or award. 32 An. 222; 33 An. 930.
    The mere hearing of a cause, and taking the testimony of witnesses therein, can not work the plaintiff an irreparable injury. 32 An. 1192; 38 An. 127; 35 An. 1075.
    The general rules prescribed in the Civil Code, Title XIX, “ Arbitration,” and the Code of Practice, Art. 441 et seq., must be read into and form a part of the act creating this board. These provisions of the Code prescribe the mode of reviewing the awards of arbitrators and correcting any errors into which they may have fallen. R. C. C. 3129 and 3130.
    The contract between employer and employé is a legal obligation, capable of reciprocal enforcement, and should not be taken out of the general rules contained in our Civil Code. Arts. 163 et seq., 2946 et seq.

      A contract requiring the exercise of skill and industry may be negatively enforced by injunction. Lavine vs. Michel, 35 An. 1121.
    A court of equity can not interfere by injunction, for the purpose of ■controlling the action of public officers constituting inferior .quasi-judicial tribunals, such as boards and the like, on matters pertaining to their jurisdiction. The proper way to correct errors in their proceedings is by writ of certiorari. 2 High on Injunctions, Sec. 1311, p. 862.
    The damages suffered, if any,.are classed as damnum absque injuria. 2. Waits’ Actions and Defences, Sec. 2, p. 115.
    A court which has no jurisdiction oyer a cause ratione materise can not issue an injunction therein. 36 An. 705.
    Argued and submitted April 9, 1895.
    Opinion handed down April 22, 1895.
    Rehearing refused May 20, 1895.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff appealed from a judgment of the District Court dismissing its injunction by which it seeks to prevent the defendant board from entertaining or considering a controversy over which it insists the defendant has no jurisdiction.

The substantial facts alleged for the injunction were, plaintiff alleges, that the New Orleans Street Railway Employés Union prepared a “ memorandum ” for its signature, which it declined to sign, for the reason that it would involve a surrender, practically, of the management and control of its property to another organization— the Employés Union.

Plaintiff alleges further that thereupon the New Orleans Railway Union addressed a communication to the State Board of Arbitration, and that another communication was addressed by it to the plaintiff; copies of these communications are part of plaintiff’s petition. The plaintiff also annexes to its petition a copy of a communication addressed by the mayor to the board.

When summoned before the board the plaintiff suggested that it (the board) was without jurisdiction. Plaintiff’s exception to the jurisdiction of the board was overruled.

Here and in the District Court plaintiff interposed the objection that it had no relation with the New Orleans Employés Union, and that it was informed by the chairman of the board that no authority had been given to the New Orleans Street Railway Employés Union to represent its employés. Plaintiff urges that it could not be called upon to answer the charges of the union, and it avers that it had no differences with its employés and that no strike was threatened. It complains that the right it claimed of being heard through counsel was refused by the board.

Plaintiff complains also of the board’s refusal to allow it, through its president, to make any objections or explanations of its demands that it (the defendant) ruled that he, the president, should answer questions categorically “ yes ” or “ no,” without permission or right to explain or object.

The petition avers that the board proceeded to hear witnesses, and that its decision, if the board is allowed to pronounce a decision, would cause trouble and dissatisfaction among its employés. In a rule to dissolve the injunction the defendant (the Board of Arbitration) alleged that the court was without jurisdiction to interfere with its authority; that' the injunction was premature. The defendant controverted all of plaintiff’s allegations for an injunction.

The memorandum sent by the union to the plaintiff relates to the operation oi plaintiff’s railroad lines and proposed that plaintiff shall treat with its employés through the union, and limit to stated hours the day’s work; it provides for the opportunity to discuss important changes; it looks to the employment and to the discharge of employés; it has bearing upon questions of discipline, imposes privileges to be accorded to the collectors of the union, and lays down methods for adjusting differences.

In their communication to the State Board of Arbitration the union states that it had submitted a “ memorandum,” of which the foregoing is a summary, to the different railway companies in New Orleans, which they declined to sign. The union, in general terms, in this communication stated their purpose and asked the board’s consideration of the subject matter submitted.

The communication of the mayor to the Board of Arbitration sets forth that he desired to call the board’s attention to the strained conditions between employers and employés, and suggested the necessity of investigating the existing differences.

He also directed attention to a controversy between the railway companies and their employés.

The statute under which the defendant board was organized was enacted in compliance with the article of the Constitution which made it the duty of the General Assembly “ to pass such laws as may be proper and necessary to decide differences by arbitration.”

Under the provisions of the statute it is the function of the Board of Arbitration to consider tbe differences between an employer employing more than twenty persons and his employés, upon an application signed by the employer or a majority of the employés, or signed by an agent of a majority of the employés. The law further provides that the board shall satisfy itself that the agent is authorized to act for the employés, but that it shall keep secret the names of his (the agent’s) constituents, the employés.

In either case, on the application of employers or employés, or in the other, i. e., on notification of the mayor of a city or of the District Judge in one of the parishes, it is made the duty of the board to inquire into the causes of the differences, hear all persons interested appearing before them and advise the respective parties” in order that they may agree upon terms of accommodation.

It is in place here to state that the board is not vested with judicial functions. It sits as a court of conciliation, with the authority to formulate a decision and to have it recorded.

The petition of plaintiff for the injunction does not present any question of unconstitutionality of the act to provide for a State Board of Arbitration, nor does it assail, as illegal, the defined duties and powers of the board.

But it is urged that the board’s authority is to settle a difference or controversy between employers of laborers and their employés, and that it has exceeded that authority by undertaking to settle differences between an employer and a third person or association.

Plaintiff questions the right of the agent to act, and the objections are founded on this point, upon the information received from the chairman, that the board had not received any evidence in writing of the Labor Union’s authority to represent plaintiff’s employés.

The information, for all we know, may have been entirely correct, but it was not given by the board and can not therefore be made ground for judicial action at this time.

The notice of tbe mayor regarding the differences between employer and employés had been received by the defendant board in addition to the application of the union, both having the same object in view.

If the former was defective, it may be that the latter was not.

At any rate, whether the former, the application of the union, was supported by the required authorization or not, or the letter of the mayor was not what it should have been, are questions, which the board, in the first place, must decide, and not the court, prior to any action by the board.

If there be a proper defence to the investigation upon these grounds it should be made before the board, and not before the court, prior to any action of the board.

If there was excessive irregularity (not amendable) in the application or notice, or any other obvioub error, we would not feel justified in assuming that the board would persist and seek to give them sanction, although properly called to its attention. We must presume that the board, while keeping the law’s injunction regarding the names of employés, will not fail to satisfy itself, after objection duly made, that the agent was sufficiently authorized to enable the board to exercise the functions of conciliators.

The argument based upon the assumption that inalienable rights of plaintiff will be set at naught by the board’s decision can not have determinative weight at this stage of the controversy.

We must take it for granted (until the contrary is made evident contradictorily with parties concerned), that the Board of Arbitration will act conformably to the laws which we are all required to obey.

Regarding the hearing said to have been denied to the plaintiff by the board, we will not withhold the statement that it is the duty of the board sitting to patiently give a hearing to the disputed causes; to listen to evidence and the timely utterances of the parties in inteiest or their counsel.

While it can not be for a moment reasonably denied that they should be heard within reasonable limits, injunction is not the remedy to secure the right.

If reviewable, such issues can not thus be divided from the decision the board is authorized to render, and should not be brought up separately for review.

Such a division of issues would not assist in reaching a correct conclusion, nor in bringing any controversy to a close.

The mere apprehension of plaintiff that the determination of the board will be against it is not a ground for injunction.

If that were sufficient for an injunction, nearly always authorities vested with legal discretion, as here, would be impeded at every step, in their endeavor to execute the mandate with which they are entrusted by the State.

We paraphrase from High on Injunction, Vol. 2, Sec. 1311, 3d Ed

Injunction will not issue for the purpose of controlling the action of public officers, such as boards of supervisors, commissioners of highways and the like, unless irreparable injury is shown.

There is certainly no irreparable injury in this case at this time, and it is not too much to hope that there never will be.

The text paraphrased, supra, was approvingly referred to in State ex rel. Behan, Mayor, et al. vs. Judges, 35 An. 1073, 1085, and in other cases in which the matter was discussed.

In fine, if errors of an incidental character are committed by a lawful authority vested with the power (by the Legislature) to investigate and make a finding regarding a dispute, these errors do not of themselves alone have .the effect of divesting the authority of its power. The law looks more to the consequence of error than to the error itself.

While it is true that the board can not be held to a compliance with the technical rules by which courts are governed, it is obvious that it should none the less conform with the statute under which it exists, and observe the broad rules of law and equity, without which a decision can not be just.

After a study we lay aside the statute under which this board was organized, and leave the subject persuaded that the Legislature has imposed a most important and delicate duty upon her accredited agents.

Tne assistance of public opinion, the decision of public conscience, and the sense of right will be on the side of their recommendation and greatly efficient for good, if it be felt that it is the result of patient investigation and impartial ruling.

The object sought by the law giving power in enacting the statute in question enlarges upon consideration. It becomes obvious that the interests involved and sought to be reached through the agency selected (the Board of Arbitration) should be on good terms.

They all, employer and employés, suffer together; one is interested in the welfare of the other; the interest of one can not be depressed without injuriously affecting the interest of the other, and yet despite the ultimate common cause, difficulties may arise in the way of adjustments. It is manifest that the board’s attempts to adjust differences will prove permanently successful only to the extent that good faith and kindly feeling prevail to all concerned.

We will not at this time, and in the proceedings by injunction, decide: the questions raised, and which have not been passed upon by the board contradictorily with the, parties concerned:.

It is therefore, ordered, adjudged and decreed that the judgment be affirmed.


author: Miller, J.

text:
    No. 11,780.
    L. Gaston Dauterive vs. J. W. K. Shaw et als.
    The father during the marriage is clothed with the functions of the tutor in respect to the property of his child, and may petition for the family meeting to consider the expediency of selling such property at private sale. Civil Code, Art-22; Revised Statutes, 2359; Act. No. 25 of 1878.
    The under-tutor is properly appointed on such petition and is entitled to ask for the homologation of the proceedings. Civil Code, Art. 225.
    Nor will it make the least difference that the order of the court designates the father in such case tutor, when in fact he is competent to exert the functions of tutor.
    The parish courts, under the Constitution ofj!868, were competent to grant orders for family meetings and homologate their proceedings in such cases, and a sale made in accordance with the judgment of homologation passed the title to the minors’ property. Const. 1868, Arts. 87, 68; Act No. 25 of 1878; Duruty vs. Musacchia, 42 An. 359; Bruhn vs. Building Association, Ibid., 482.
    The decree of homologation in such case protects the purchaser especially when the objection suggested to the title is that the family meeting gave no reasons for their recommendation of the sale. Lalanne’s Heirs vs. Moreau, 13 La. 431; Succession of Hawkins, 35 An. 593.
    APPEAL from the Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J.

      Foster & Broussard and L. O. Hacker for Plaintiff and Appellant:
    Tender of purchase price not required, as a condition precedent, in this case, in which plaintiff avers that he has been deprived of his property by a fraudulent conspiracy and that he received no part of the proceeds of the sale. 34 An. 288; Gillespie vs. Twitchell, 33 An. 744.
    "When both parents of a minor, as in this case, are living, there can be no legal appointment of a tutor and under-tutor, and in case of any such appointments they are absolutely null and void, because the law, under such circumstances, knows of no such trusts or offices, 6 R. 364; 12 R. 172; 10 L. R. 92.

      Before an immovable, in which a minor is interested as co-owner and proprietor, can be legally sold, it is necessary that a family meeting, legally constituted, shall set forth in its report that the sale is of absolute necessity or evident advantage and must give its reasons for its determination. And where, as in the instant case, it assigns no reasons why the sale of the minor’s property is necessary, to his interest or of advantage to him and the petition asking for it assigns none, and it make no appraisement of the minor’s interest in the property and does not define how much that interest is, the family meeting and all its proceedings are absolutely null and void. C. C., Art. 340; 30 An. 977; 13 La. 431; Act. No. 25 of 1878.
    Where one claiming to be under-tutor, Whose appointment, is absolutely null and void, is present at a family meeting acting as under-tutor, the family meeting is null and void for want of the presence of an under-tutor.
    An under-tutor can represent a minor only and it is his duty then to do so, when there is a conflict of interest between the tutor and his minor. And when in the case at bar there was no conflict of interest and the under-tutor, upon his petition, caused the family meeting to be homologated, the homologation was null and void, and without authority or sanction of law.
    Where an immovable property is the personal property of a minor, owned by him in his own right in virtue of a donation inter vivos, it is in no sense a succession right, and the Parish Court as the Probate Court is without jurisdiction ratione materise in any and all judicial proceedings having for their purpose the divestiture of ownership and title of the minor.
    The law favors a division in kind of property, and where the family meeting reports that it can not be and that it can only be divided by licitation and yet divides it in kind in the same report; such a position is so irreconcilable as to render the whole family meeting null and void.
    Minors, as well as other persons, must be represented in any and all proceedings having for their- object a judicial investigation of any right in which they are concerned; especially is it necessary that they be represented where the object of the proceedings is to divest them of ownership and title to an immovable. In the instant case the minor was not represented. 35 An. 288; 31 An. 389, and authorities cited in brief.

      In partition proceedings, all parties interested must be made parties. 35 An. 288.
    A person acting in the capacity of administrator or guardian, or as common agent, c'an not provoke a partition either among heirs or co-owners. 31 An. 802; 40 An. 577; 31 An. 389.
    The plea of estoppel urged by defendants is without merit, either in law or justice, because the burden of proof was on those pleading it to .prove it, and this they have failed to do; because they failed to show that the defendant in this suit, who invokes the plea of estoppel, was induced or influenced at the time of his purchase by any word, declaration, act or deed on the part of' the plaintiff to make it.
    That the proceedings by which plaintiff was attempted-to be divested of his title were not under Art. 222 of the Revised Civil Code, but by one claiming to-be tutor. That if they were conducted under said article they are nevertheless null and void because the manner and form of doing so was not such as the 1 iw prescribes when a tutor wishes to alienate and partition property of minors.
    If, under Art. 222, and-the jurisprudence referred to in brief, B. D.. Dauterive was only the administrator or guardian of the property of the minor, it is well settled that an administrator can. not provoke a partition among co-owners and co-heirs.

      Ex parte partition proceedings provoked by one with no shadow of interest or title in the thing sought to be partitioned and conducted in a court without jurisdiction ratione material are abso - lutely null and void. And the fact that one of the co-owners-of age signs the deliberations of the family meeting does not change the jurisprudence, and has no effect as a ratification,, and, so far as concerns the other co-owners, is an absolute-nullity, and can not be ratified.
    The acts from which the ratification of a contract is to be deduced must evince such intention clearly and unequivocally; none will be inferred when those acts can otherwise be explained. 12 An.. 253; 13 La. 175; 17 L. 286.
    Defendants can not ignore the defects of their titles; the illegal proceedings which form the basis of their titles are set out at length in the act- of transfer; they did not believe that their vendor, B. D. Dauterive, was the owner of the property, because the act recites that he was selling the property of . plaintiff, his minor son; and having had notice of the defect of their titles, they are purchasers in bad faith (10 An. 646). In 6 Rob. 192 it was held that a possessor under a decree of court having no jurisdiction is not a possessor in good faith. On p. 212, same book, it is said: “The possession and title upon which the fruits and revenues can be retained must be such as the party must have to entitle him to the prescription of ten years. In 24 An. 253 this court has said: “A title resting upon a judgment absolutely null can not be the source of any legal right, nor of possession in good faith.”
    The decree of the Probate Court, which forms the basis of defendant’s titles, is an absolute nullity for want of jurisdiction.

      Weeks & Weeks, C. H. Mouton, Robert Martin and Walter J. Burke for Defendants and Warrantors, Appellees:
    In this action none but absolute nullities can be examined. Dauterive vs. Opera House Association, 46 An. 1317.
    The test of the jurisdiction of parish courts in partitions was twofold. First, to partition all succession property; this was derived from the status of the property and was ratione material. .Secón:', to partition property in which minors were interested, regardless of how held or whence derived. This was because of the status of the persons as minors, and was ratione personae. 40 An. 500; 7 N. S. 469 ; 2 An. 150; 12 La. 214; 42 An. 109; 6 La. 423; 10 La. 90; 9 La. 580.
    The closing clause of Art. 87 of the Constitution of 1863 allowed the . Legislature to confer upon parish courts any jurisdiction not already vested elsewhere. 21 An. 478. The right to authorize the partition of property owned in common by majors and minors, by private sale, was a new power not hitherto vested in any court whatever. The Legislature properly could and did • confer it upon the parish courts. Acts 134 of 1869 and 25 of 1878.
    Act 25 of 1878 expressly empowers tutors to ask ; or the partition by private sale of property which their minors own in common with majors. And when both parents are alive, the father may sell or take any other step affecting their minor children’s property that the tutor might. But in such eases there must be an under-tutor ad hoc appointed. C. C. 222 ; C. C. 235.
    No citation was necessary. Besides, the major co-owner participated in the proceedings. He was present at the family meeting, heard the petition read, signed the proces verbal oí their deliberations and the deed of sale. This participation binds, him. 42 An. 481.
    Friends were properly substituted for those relatives named who did not attend the family meetings. C. C. 287; 45 An. 858. Nor could such substitution affect the validity of the deliberations as to third parties purchasing. 47 An. 38.
    The absence of reasons in the deliberations of a family meeting “can not affect a third person who purchased property by its advice duly homologated by the courts.” 45 An. 858; also 39 An. 56; 34 An. 1004; 43 An. 40; 35 An. 591.
    The legality of the appointment of tutors and under-tutors ad hoc,. and the alleged irregularities in the proceedings of family meetings can only be questioned in direct actions of nullity. 46 An. 1317; 46 An. 326; 44 An. 400; also 39 An. 579; 39 An. 56; 35-An. 591; 32 An. 364; 30 An. 268.
    Whether wise or unwise the determination of a family meeting, duly homologated, that the property can not be divided in kind without loss, or on any other matter within their province, binds the minor, and protects third parties purchasing the property. 47 An. 38; 32 An. 954; 31 An. 35; 13 An. 364.
    The formalities requisite to partitions by public sale do not apply to partitions by private sale. “ In the latter it is enough where the co-proprietors agree that the family meeting find the necessity or propriety of. the sale advantageous to the minors, and that, with the concurrence of the tutor, the court homologate the deliberations, and order the sale for the price fixed by the family meeting. 42 An. 359; 42 An. 481.
    When both parents are alive the recordation of the inventory of the minors’ property operates a mortgage on the parents’ property in the minors’ favor. And if not a mortgage this inscription is at least the evidence of the claim of the minors against their parents. R. S. 2367, 2392; C. C. 3350.
    B. D. Dauterive having sold the property of his children became liable to them for the proceeds. The liability was represented by the inscription of the inventory in the mortgage books.
    Where, as in this case, the claim of the minors against their father for the proceeds of the sale of their property is represented by an inscription in the mortgage books, and the minors, many years after attaining majority, authorize the cancellation and erasure of any and all inscriptions in their favor and against their said father; and in authentic act assign as their reason for so doing that the claim represented by said inscription had long ago been settled by their said father, they authorize the canceling of each of such inscriptions, no matter how numerous, and admit having received settlement from their father of their claim against him for the proceeds of the sale.
    Where a minor arrived at majority receives the proceeds of the sale of his property made during his minority, and long afterward appears in authentic act and admits having been settled with, and authorizes the cancellation of the inscription representing his claim, he estops himself from afterward claiming the property itself. 2 La. 519; 3 R. 256; 6 An. 651; 5 An. 574 ; 4 An. 148; 2 An. 142; 1 An. 339; 4 R. 134; 7 L. 17; 6 R. 430; 2 An. 648; 32 An. 121; 3 An. 664; 29 An. 212; 39 An. 809. Even to claim the proceeds of the sale of property ratifies the sale. 41 An. 555; 37 An. 323; 34 An. 410; 30 An. 330; 29 An. 274; 23 An. 246; 31 An. 719, 31 An. 103; 17 La. 454.
    To ratify a sale is to make it actually valid. It cures all defects, and no action for nullity can be brought after ratification. C. C. 1875, 2272, 1785, 2228; 2 La. 519; 2 An. 367, and authorities above referred to.
    Defendant is the undisputed owner of two-thirds of the property, and, if not owner of, is a possessor in good faith of the remainder. If liable for rent at all, he is only so liable for rent accruing since the date of filing this suit. C. C. 3453; 38 An. 150; 27 An. 398.
    As a possessor in good faith, defendant must be reimbursed the three thousand dollars enhanced value of the property given to it by the improvements which he and his authors have placed thereon. C. C. 508; 38 An. 150; 27 An. 398; 2 Rob. 187; 26 An. 588; 15 An. 698.

      And, until so reimbursed, he is entitled to detain possession of plaintiff’s one-third interest in the property. C. C. 3453; 10 R. 178; 13 An. 512; 10 An. 327.- And this without being subject to any claim for rent. 33 An. 298.
    Argued and submicted, April 25, 1895.
    Opinion handed down, May 6, 1895.
   . The opinion of the court was delivered by

Miller, J.

The plaintiff sues to have his title recognized as owner of one-third of certain property held by the defendants under a sale based on the proceedings of a family meeting and judgment of homologation of the parish court of Iberia, directing the sale of the interest of the plaintiff, then a minor. From the judgment in defendants’ favor, plaintiff appeals.

In 1879 the father of the plaintiff petitioned the Parish Court for the holding of a family meeting of the relatives or friends of the minor to advise as to the private sale of his interest in the property sued for. The meeting was held in accordance with the order, the proceedings directing the sale homologated, and defendants became the purchasers.

The contention of the plaintiff is that the minor was not represented in the proceedings for the sale, and that the Parish Court had no jurisdiction.

It is true that during the marriage there can be no tutorship, incidental as it is to the death of one of the parents (Civil Code, Art. 250). But it is equally true that the father, during the marriage, is clothed, in regard to the property of his minor child, With all the power of the tutor. Property belonging to the minor, both of whose parents are living, may be sold or mortgaged, or any other step taken affecting their interest, in the same manner and with the same forms as in case of minors represented by tutors, the father occupying the place and being clothed with the powers of the tutor. Civil Code, Art. 222. This article, not in the old Code, needs no comment. It plainly applies to the case here of a sale of the minor’s property, on the advice of a family meeting provoked by the father, and the proceedings approved by the judge, the same as a tutor would have acted if there had been a tutorship; the Act No. 25 of 1878 authorizes the sale of a minor’s property at private sale, when, on the tutor’s application, a family meeting advises the sale, -appraises the property, fixes the terms, and the proceedings of the meeting are approved by the judge. Act 1878, p. 47, amending Act of 1869, p. 207, now Sec. 2667 Revised Statutes. It is urged that the father applied to be appointed tutor, and was so appointed. The father and mother applied for the making of an inventory, and asked for the appointment of an under-tutor ad hoc, the petition stating that the father occupied the place, was clothed with the powers of a tutor, and closed with the prayer that the proceedings be carried on contradictorily with the under-tutor and after the appointment of the father as tutor. The order of the court appointed the under-tutor, and the father as tutor. In the subsequent petition for the family meeting he styles himself the tutor. The proceedings were homologated on the petition of the under-tutor. Giving the father the name of tutor does not, in our view, affect his capacity to act as father. It was, in effect, the action of the parent designated by law to ask for the meeting and make the sale. It is urged, too, there was no under-tutor, because, it is claimed, there was no tutor; but the article of the Oode that empowers the father to exercise the functions of tutor provides that when, in such case, the sale or mortgage of the minor’s property is contemplated, the judge shall appoint an under-tutor, contradictorily with whom the proceedings shall be conducted. This appointment was made by the competent court, and on his application the proceedings of the meeting were homologated and the sale ordered. We think, therefore, the contention that the minor was not represented must fail.

In the petition for the family meeting, it is alleged the major heir desired a partition, threatened a suit and a private sale was necessary. It is urged that no reasons for a private sale are assigned on the petition nor in the proceedings of the meeting. The plaintiff insists this vitiated the proceedings. In the case cited, in this connection, the Supreme Oourt maintained an injunction to restrain the sale on a mortgage based on the proceedings of a family meeting. But there were a variety of considerations influencing that opinion. In this case the petition did assign the reason that a forced sale was threatened, and the economy of a private sate and the averting of a sacrifice of the property were also assigned. We do not think that the proceedings of a family meeting and the judgment of homologation on which a third party has bought and paid the price can be avoided on this ground. Our jurisprudence, we think, maintains titles of purchasers in good faith, based on judgments homologating the proceedings of family meetings, directing sales of minors’ property. See Lalanne’s Heirs vs. Moreau, 13 La. 431; Succession of Jacob Hawkins, 35 An. 593.

The plaintiff assails the competency of the Parish Oourt to partition the property owned by the plaintiff and his sister and brother coming to them, not by succession, but by donation. This vexed question, we think, was finally deemed settled that the Parish Oourt had that jurisdiction in all cases where a minor was interested. But in this case the proceedings of the meeting, their homologation and sale, passed the title. There can be no question of the authority of the Parish Oourt to order the meeting and render the judgment of homologation. That court is designated by the statute. Under the statute and adjudication there was no necessity for any suit, and hence no necessity for any discussion of the old question of the jurisdiction of partition suits. Bruhn vs. Building Association, 42 An. 482; Duruty vs. Musacchia, 42 An. 359.

It is urged, too, that the property was divisible in kind. It is, we think, the province of the meeting to consider that and all other questions touching the advantage vel non of the sale. Their action, when approved, must be accepted as conclusive.

The view we express disposes of the case and renders unnecessary other questions discussed in plaintiff’s brief.

It is therefore ordered, adjudged and decreed that the judgment, of the lower court be affirmed at plaintiff’s costs.


author: Watkins, J.

text:
    No. 11,775.
    Mrs. Widow Catherine Koehl vs. Mrs. Gorgiana Bryant Solari, Individually and as Tutrix — On Rule Against Fritz Jahncke.
    In case a judicial sale of real property is made to effect a partition by licitation, between co-heirs, some of whom are minors, a title free of incumbrance will pass to a purchaser upon his paying the whole of the purchase price into the registry of the court, there to remain, under the control of the court, until the share of the proceeds coming to the minors shall have been legally re-invested, and the tutrix shall have furnished satisfactory security, in lieu of the legal mortgage of the minors, on her interest in the property sold.

      PPEAL from the Civil District Court for the Parish of Orleans. Bightor. J.

      George F. Lapeyre for Plaintiff, Appellee:
    No one can be compelled to hold property in common. C. C., Arts. 1289, 1290, 1308.
    Although, owing to the peculiar solicitude of the Louisiana Code for the rights of minors, it may be open to argument whether the partition sale of real estate held in common by a tutor and his ward of itself disencumbers the tutor’s share of the general mortgage extant upon it in favor of the minor, and refers the minor’s security to the proceeds going to the tutor, there is undisputed authority to the effect that the mortgage is extinguished and the minor’s interest amply safeguarded by the tutor giving a special mortgage upon real estate bought upon the advice of a family meeting and under order of court with the share of the proceeds going to the tutor. C. C., Arts. 320, 325, 3334; Lecarpentier vs. Lecarpentier, 5 An. 497; Life Association vs. Hall, 33 An. 49.

      Dart & Kernan for Jahncke, Defendant in Rule, .Appellant.
    Argued and submitted, April 24, 1895.
    Opinion handed down, May 6, 1895.
    Rehearing refused, May 20, 1895.
   The opinion of the court was delivered by

Watkins, J.

The decree appealed from in this case makes absolute a rule taken by the plaintiff to coerce Fritz Jahncke to accept title to certain real estate situated in the city of New Orleans, which was adjudicated to him at public auction, conformably to a judicial decree directing and requiring a partition thereof by licitation.

It directed and required the said defendant in rule to pay the purchase price in compliance with the terms of the adjudication, and ordered that the portion thereof coming to Mrs. Bryant, individually and as tutrix, be deposited in the registry of the court, and directed the cancellation of the legal mortgage of the minors resting against the property.

Questioning the effectualness and legal efficacy of such decree, and the contemplated cancellation of the aforesaid mortgage, the defendant in rule has prosecuted this appeal in order to procure an adjudication of this court upon the question.

For, as counsel suggest in their brief, if the decree be literally carried out, the purchaser may find himself in possession of an encumbered undivided portion of the property.

For, supposing the share of the proceeds coming to the minors be not invested in real estate, .or in mortgages on real estate, but remain uninvested in the registry of the court, would not their mortgage remain in force upon their share in the property the respondent acquired at partition sale?

• This postulate rests upon the theory that the minor’s mortgage remains upon the property until the reinvestment of the funds is actually made.

On the other hand, it is contended that, inasmuch as a judicial partition can be lawfully made contradictorily with the minors having an undivided interest in real estate, it necessarily results .that a partition sale extinguishes the minor’s mortgage and transfers it to the proceeds of sale, and that a different construction of the law would result in an embargo on the right of co-owner to have a partition of the common property.

The subjoined statement of facts will sufficiently illustrate the question of .aw that is propounded, viz.:

On the 30th of April, 1890, Angelo M. and J. Solari, brothers, jointly acquired by purchase in equal shares the property which is the subject of the present partition proceedings. Angelo M. Solari was at the time married to Georgiana Bryant. He subsequently died intestate, leaving surviving him his widow, Mrs. Georgiana Bryant, and six minor children, issue of his marriage with Miss Bryant. Joseph Solari departed this life on January 2, 1893. In his last will he bequeathed 8-21 parts of his one undivided one-half interest in the property to his sister, Mrs. Widow Catherine Koehl, and the remaining 13-21 parts he devised to the sis; minor children of his brother, Angelo M. Solari. The title to the property thus became vested in indivisión in Mrs. Georgiana Bryant Solari, as widow in community of Angelo M. Solari; in Mrs. Widow Catherine Koehl by virtue of and as one of the legatees under Joseph Solari’s will, and in the minor children of Angelo M. Solari as heirs of their deceased father and as legatees of their uncle, Joseph Solari.

On January 2, 1894, Mrs. Koehl filed a petition in the Civil District Court for the parish of Orleans, alleging the common ownership of ' the property, and she prayed for its partition and for the appoint- ■ ment of experts to report whether it could be conveniently divided in kind. Mrs. Georgiana Bryant Solari, both individually and in her capacity as tutrix of her minor children, was duly made the party defendant to the suit. Mrs. Solari, née Bryant, filed an answer to the petition, pleading the general issue, and'praying that should the court decree a partition and sale the portion of the proceeds coming to her individually and as tutrix be paid over to her. The experts appointed having reported that the property could not be conveniently divided in kind, a family meeting, duly convened before N. B. Trist, notary public, unanimously recommended its sale at public auction, and fixed the terms of sale. The deliberation of the family meeting having been homologated, the learned judge of the lower court, after hearing the evidence, decreed a partition and sale at auction in accordance with the recommendations of the family meeting. After proper advertisement the property was adjudicated for the price and upon the terms fixed by the family meeting to one Fritz Jahncke. The latter refused to take the title to the property and to pay the purchase price thereof, claiming that the general mortgage in favor of Mrs. Solari’s minor children resting upon her interest in the property sold had not been extinguished, by the mere fact of the sale, and that, therefore, the title was encumbered, and not such as he could be compelled to accept. The plaintiff, Mrs. Koehl, then took a rule against Fritz Jahncke, the recorder of mortgages, and Mrs. Georgiana Bryant Solari, individually and as tutrix, to show cause why the minors’ mortgage should not be erased and annulled and canceled and referred to the proceeds of sale, and why Fritz Jahncke, adjudicatee and purchaser, should not be condemned to accept the title to the property.

Subsequently a supplemental rule was filed by Mrs. Koehl, ordering the defendants in the original rule to show cause why the portion of the proceeds of sale coming and belonging to Mrs. Bryant,individually and as tutrix, should not be deposited in the registry of the Civil District Court, to be thereafter invested in real property upon the advice of a family meeting, to be convened for that purpose and upon order of court.

The under-tutor of the minor children of Mrs. Georgiana Bryant Solari, James A. Koehl, was served with a copy of this supplemental as well as the original rule, and was made a party defendant thereto, and upon final trial of both rules he duly appeared. The learned judge a quo made the rule absolute, decreed the cancellation of the minor’s mortgage, condemned Pritz Jahncke to accept the title to the property and to pay the purchase price in compliance with the terms of the adjudication, and ordered the portion of the price belonging to Mrs. Bryant;, individually and as tutrix, to be deposited in the registry of the court in accordance with the prayer of the supplemental rule.

. Simplified, the question is, whether the decree of the court a qua,. requiring the cancellation of the minor’s mortgage upon the purchaser making a deposit in the registry of the court, of “ the portion of the proceeds of sale coming and belonging to Mrs. Bryant, individually and as tutrix,” should be affirmed, as fully relieving the property of said incumbrance.

The foregoing statement discloses this to be the case of a judicial partition of incumbered property, held in common by heirs, some of whom are minors. It is property in which the mother and natural tutrix has an interest in common with her minor children, with their legal mortgage resting on the joint interest owned by the natural tutrix.

The brothers A. M. and J. Solari acquired the property in their names jointly; and at the death of the former, his six minor children inherited his one undivided half interest in the property of the community, that is to say one-fourth in the whole property. Another fourth interest devolved upon his surviving widow, Georgiana Bryant.

At the death of J. Solari, 13-21 parts of his one-half were by the terms of his will vested in the aforesaid minors; and 8-21 parts thereof were vested in Mrs. Catherine Koehl. It is there exhibited that the minors are the owners of a little more than one-half interest in the common property with a legal mortgage resting upon the undivided one-fourth interest of their mother, as a security for the ■due performance of her obligations as natural tutrix.

The serious question in the case is, whether the interest or share of one co-owner, who is at the same time natural tutrix, can be discharged and released from the effect of the minors’ legal mortgage through the operation and effect of a judicial partition sale.

The case which is pointed to, by both the counsel for the plaintiff and respondents in rule, is Lecarpentier vs. Lecarpentier, 5 An. 499, as the one which must control our decision.

In that case the court said:

“ The difficulty which prevents F. J. Lecarpentier, the plaintiff in rule, from receiving his share of the proceeds of the sale of the common property may be obviated in three ways: (1) by giving the defendant satisfactory security to indemnify her against the mortgage; (2) by causing his share to be invested in real estate under the supervision of the court, and the advice of a family meeting, and giving a special mortgage on the property thus purchased under the provisions of the act of 1831; and finally, by agreeing with the defendant that she will retain the amount until the majority of the minors, on paying the stipulated interest.

“ Leaving the plaintiff the choice of means, we will simply affirm the judgment.”

In Life Association vs. Hall, 33 An. 49, the court said: “ We consider that the adjudication made in the case of Lecarpentier, 5 An. 497, so far as it declares that the general mortgage continues to attach on the tutor’s share, notwithstanding a judicial sale to effect a partition, and can only be replaced by a special mortgage, and suggests the investment in real estate, under the supervision of i he court in the name of the tutor, of the proceeds of his share in the property held in common, and sold to effect a partition — contains a correct exposition of the law ” — and affirmed that decision, citing Fabre vs. Hepp, 7 An. 9; Aicard vs. Daly, Id. 612; Succession of Widow Tureaud vs. Gex, 21 An. 253; Fontenette vs. Veazey, 1 An. 236; Beauregard vs. Leveau, 30 An. 304; Fleetwood vs. Bordes, 19 An. 55; Barnard vs. Erwin, 2 Rob. 415.

Our conclusion is to stand upon those two decisions, as affirming like principles of law.

The judgment appealed from ordered the cancellation and erasure of the minor’s mortgage from the records of the mortgage office; that the respondent be compelled to accept and complete the title tendered him, and pay the purchase price in compliance with the adjudication; and “that the portion of the purchase price coming to Georgiana Bryant Solari individually, and the portion of the said price coming to the minors above named be deposited in the registry of the court, there to' remain until reinvested in real estate under the advice and recommendation of a family meeting to be held and convened for that purpose, and under an order of court to be hereafter rendered.”

Considering that the proceeds will represent the property, the shares of the respective parties in interest are transferred thereto. But to make it certain that the property shall pass free of any encumbrance, we think it best that all the proceeds of sale shall be deposited in the registry of the court and there remain until the amount coming to the minors shall be actually reinvested upon the order of the court upon the recommendation of a family meeting,” and the natural tutrix shall provide adequate security in place of the legal mortgage now resting upon her one undivided one-fourth interest in the property sold.

Otherwise there might be some risk of loss or injury to the interest of the minors. The whole proceeds being deposited in the registry of the court, the parties in interest will be concerned in the proper and speedy investment being made, and proper security furnished by the tutrix.

In our opinion, there is no doubt of our power to deal with the proceeds of sale, as we are called on to deal with the property; and it is our conception of the law that the minors must have security at all times sufficient to cover and protect their interests.

It is therefore ordered and decreed that the judgment appealed from be so amended as to require the entire proceeds of sale to be deposited in the registry of the court, and there remain, subject to the order of court, until the share of the minors is legally reinvested and their tutrix furnishes satisfactory security in lieu of their legal mortgage upon her interest in the property sold; and that as thus amended the same be affirmed, the appellees being taxed with the costs of appeal.