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Viator, 33 La. Ann. 1162; Millaudon v. , Quaker Realty Co. v. Citizens' Bank, 131 Gallagher, 104 La. 713, 29 So. 307; George La. 845, 60 So. 367; Quaker Realty Co. v. v. Cole, 109 La. 833, 33 So. 784; Re Sheehy, Purcell, 131 La. 496, 59 So. 915. 119 La. 608, 44 So, 315; Cordill v. Quaker The death of an absentee who was less Realty Co. 130 La. 939, 58 So. 819.

than one hundred years old is never preThe death of a person one hundred years sumed. It must be clearly shown. old is always presumed.

Martinez v. Vives's Succession, 32 La. Martinez v. Vives's Succession, 32 La. Ann. 305. Ann. 305; Rachel v. Jones, 34 La. Ann. 110; Babin v. Phillipson, 3 La. 376.

Sommerville, J., delivered the opinion of Mr. William Winans Wall, for appel- the court: lee:

Plaintiffsues defendant to compel him In a suit for specific performance of a to accept title to property located in the contract of sale of real estate, the defend-city of New Orleans, which defendant agreed ant will be compelled to accept a title where to buy, and to which he refuses to accept the court is satisfied that such title is safe the title tendered. Defendant appeals from from successful judicial attack.

an adverse judgment. Pattison v. Maloney, 38 La. Ann. 885; The property in controversy appears to Johnson v. Carrere, 45 La. Ann. 847, 13 have belonged to Victor Defoux at So. 195; Meibaum v. Brennan, 49 La. Ann. time, who sold it to A. De Rosa May 4, 580, 21 So. 853; Westerfield v. Cohen, 130 1837. It appears to have been assessed in La. 538, 58 So. 175.

the name of Defoux after the sale to De For the purposes of prescription, vacant Rosa, and it was forfeited to the state unsuccessions now represent, as they did, un

der said assessments for the taxes of years der the Code of 1808 and under the Roman 1871 to 1877, inclusive; and it was adjudilaw, the person of the deceased.

cated to the state in 1885 for the taxes of Davis v. Elkins, 9 La. 147; Poultney v.

1882. The title of the state passed, in Cecil, 8 La. 342; McCullough v. Minor, 2 1894, to plaintiff's author in title, and by La. Ann. 468; Cordill v. Quaker Realty Co. mesne conveyances to the plaintiff in this 130 La. 933, 58 So. 819.

suit, in 1904; and plaintiff and its authors Plaintiff has had actual possession of the have had possession of the property since property for more than ten years, and its 1894. title would be placed beyond successful at- The defendant filed an answer, in which tack by the prescription of ten years, ac- there are many defenses, alleging that the quirendi causa, and the constitutional pre-property had not been properly assessed in scription of three years, under art. 233 of the name of De Rosa; that it was assessed the Constitution of 1898.

in the name of Defoux, and illegally forAshley Co. v. Bradford, 109 La. 641, 33 feited and sold to the state under those So. 634; Canter v. Williams, 107 La. 77, assessments; that De Rosa disappeared more 31 So. 627; Re Lockhart, 109 La. 740, 33 than thirty years before the assessments So. 753; Simoneaux v. White Castle Lum- were made, for which the property was ber & Shingle Co. 112 La. 221, 36 So. 328; forfeited and sold; that the presumption Slattery v. Kellum, 114 La. 282, 38 So. is and was that De Rosa died prior to 1871; 170; Crillen v. New Orleans Terminal Co. that his succession was vacant, and the 117 La. 349, 41 So. 645; Shelly v. Fried- property thereof belonged to the state of richs, 117 La. 679, 42 So. 218; Terry v. Louisiana; that prescription does not run Heisen, 115 La. 1076, 40 So. 461; Levy v. against the state, and if De Rosa were Gause, 112 La. 789, 36 So. 684; Lavedan v. to return and demand the property, or, being Choppin, 119 La. 1056, 44 So. 886; Citizens' dead, his heirs should demand the property Bank v. Marr, 120 La. 236, 45 So. 115; from the state, that their rights would be Little River Lumber Co. v. Thompson, 118 prescribed by thirty years; that, if the La. 284, 42 So. 938; Prater v. Craighead, court should declare the De Rosa succession 118 La. 627, 43 So. 258; Harris v. Natal- not to be a vacant possession, then that the bany Lumber Co. 119 La. 978, 44 So. 806; property had been abandoned, and had been, Woodfolk v. Witkowski, 120 La. 489, 45 So. therefore, the property of the state prior 401; New Orleans Land Co. v. National to the time that the state acquired title by Realty Co. 121 La. 196, 46 So. 208; Doyle the forfeitures and sale to it; that if the v. Negrotto, 124 La. 100, 49 So. 992; Hol- property was in private ownership, at the land v. Southern States Land & Timber Co. time that the state took title for unpaid 124 La. 406, 50 So. 436; Weber v. Martinez, taxes, said forfeitures and tax sales are 125 La. 663, 51 So. 679; Re Quaker Realty null, void, and of no effect, because the Co. 127 La. 208, 53 So. 526; Re Perrault, property was not assessed in the name of 128 La. 453, 54 So. 939; Norgress v. E. B. the real owner, and no notice of seizure was & S. P. Schwing, 128 La. 1040, 55 So. 667; 'given to the owner of the property; and that plaintiff's title is therefore not good , will not make a will before he dies, or beand valid, and that he is justified in re- fore the time when he may be presumed to fusing to accept the title tendered.

be dead. The defenses are numerous and contradic- These things we cannot do. The presumptory; they destroy one another.

tion is, in absence of any proof, that De (1) The abandonment suggested by de Rosa is alive; and that he was the owner fendant would have to be in writing; and of the property at the date of the forthere is no allegation of the existence of any feitures and sale to the state of Louisiana such document. The other allegations in for delinquent taxes on his property. He the answer destroy the defense of abandon having been the owner at those dates, he, ment. The abandonment referred to in and one claiming through him, cannot be article 3548, Civil Code, applies only to heard to attack the validity of the assessmovables, and not to immovables. Here- ments or forfeitures or sale of his property ford v. Police Jury, 4 La. Ann. 172.

for delinquent taxes. (2) Defendant says: “Both plaintiff and

If De Rosa or his heirs should reappear, defendant assume that A. De Rosa is dead, they will be confronted with plaintiff's title, and this court must do likewise, for the the forfeitures for taxes, and the adjudireason that De Rosa purchased the proper- cation of 1885, as muniments of title, and ty in 1837, when he must have been at of plaintiff's actual possession of the propleast twenty-one years of age, and, if living erty since 1894, supported by the prescripto-day, would be ninety-eight years old. tion of ten years. The death of a person one-hundred years The prescription of three and ten years old is always presumed.”

have rendered plaintiff's title immune from The assumption of plaintiff and defend-attack. ant that De Rosa is dead is not borne out Defendant says that he relies upon the by any evidence whatever. They assume decision of this court in the case of Cordill that he was twenty-one years of age in v. Quaker Realty Co. 130 La. 933, 58 So. 1837, when he bought the property in dis- 819. But in that case a succession was pute, and that he would now be ninety-eight under administration, whereas in this case years old. But he would not be one hundred there is no succession. Besides, the facts years old; and, in the language of counsel, in that case, and the law applicable there“the death of a person one hundred years to, have no place whatever in this case. old is always presumed.” But, until it is Judgment affirmed. shown that an absentee is one hundred years old, his death will not be presumed; and, as one hundred years are not shown to

LOUISIANA SUPREME COURT. have elapsed since De Rosa was born, the law does not presume him to be dead. "An

JOHN S. SUTTON, Appt., absentee is presumed to live until the contrary is proved; otherwise the absence must

DUNCAN BUIE et al. be such that the life of a man, who may live one hundred years, should be presumed

(- La. —, 66 So. 956.) to have ended. 1 Ferriere, 13, Verbo Ab.

These principles are drawn Injunction against waste of public from the Roman Law.” Hayes v. Berwick, 2 money right of taxpayer. Mart. (La.) 138, 5 Am. Dec. 727; Owens

A citizen and taxpayer of a state has no v. Mitchell, 5 Mart. N. S. 667; Babin v ture of funds under an alleged unconstitu

standing, as such to contest the expendiPhillipon, 3 La. 374; Martinez v. Vives's

tional statute. Succession, 32 La. Ann. 305. Defendant does not attempt to fix the

(December 5, 1914.) date of the birth of De Rosa; yet he asks the court to assume the latter to be dead. / Note. - Right of citizen or tarpayer to He asks that we assume further that De

enjoin waste or unlawful expenditure

of state funds. Rosa did not part with title to the property after he acquired it; that he died intestate,

As to the right of taxpaver, in absence and without heirs, leaving the property in of statute, to enjoin the unlawful expendidispute; that there was a succession, or ture by municipalities, see the note to that there is to be one in 1916; that said Pierce v. Hagans, 36 L.R.A. (N.S.) 1. succession was, or is to be, irregular or As to when an action against officers is vacant; or that the property was aban- deemed to be action against the state, see doned; further that the state became the the note to Louisville & N. R. Co. v. Burr,

44 L.R.A.(N.S.) 189. owner when De Rosa died, or that it will

On the general subject of right to enjoin become owner in 1916, when De Rosa may acts under an unconstitutional statute, as be presumed to be dead; and that De Rosa affected by other remedies in case such acts

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of the Judicial District Court for the 240; Pennoyer v. McConnaughy, 140 U. S. Parish of East Baton Rouge, in defendants' 1, 35 L. ed. 363, 11 Sup. Ct. Rep. 699; favor in a suit to enjoin an investigating Scott v. Donald, 165 U. S. 58, 41 L. ed. commission from doing its work at the ex. 632, 17 Sup. Ct. Rep. 265; Missouri, K. pense of the state treasury. Affirmed.

& T. R. Co. v. Missouri, R. & Warehouse The facts are stated in the opinion.

Comrs. (Missouri, K. & T. R. Co. v. HickMessrs. Walter Elder and Gilbert L. Dupre, for appellant:

man) 183 U. S. 53, 46 L. ed. 78, 22 Sup. The acts creating the commission are

Ct. Rep. 18; Reagan v. Farmers' Loan & T. unconstitutional, and an injunction should Co. 154 U. S. 362, 38 L. ed. 1014, 4 Inters. issue to restrain further proceedings by Com. Rep. 560, 14 Sup. Ct. Rep. 1047 ; its members and the payment of the money Smyth v. Ames, 169 U. S. 466, 42 L. ed. appropriated.

819, 18 Sup. Ct. Rep. 418; Fontenot v. Butler v. Ellerbe, 44 S. C. 256, 22 S. E. Young, 128 La. 20, 54 So. 408; State ex 426; Ex parte Young, 209 U. S. 149, 13 rel. Smith v. Theus, 114 La. 1103, 38 So. L.R.A.(N.S.) 932, 28 Sup. Ct. Rep. 441, 14 870; Crampton v. Zabriskie, 101 U. S. 601, Ann. Cas. 764; United States v. Lee, 106 '25 L. ed. 1070. are done, see the note to Harley v. Linde- | So. 963, Ann. Cas. 1914B, 916, the court remann, 8 L.R.A. (N.S.) 124.

fused a supersedeas to an injunction against For prevention of the illegal removal of the secretary of state, restraining him from state capital, see the note to State ex rel. publishing at public expense and certifying West v. Huston, 34 L.R.A.(N.S.) 380. to the county commissioners for the vote of

This note considers only the capacity to the people proposed amendments to the Consue, and not the merits of the case.

stitution which were alleged not to have There is a direct conflict in the decisions been lawfully adopted by the legislature, as to whether a citizen or taxpayer may the suit being brought by the governor in or may not enjoin the waste or unlawful his official capacity and also as a resident, expenditure of state funds, but many of the taxpayer, citizen, and elector of the state. cases do not directly discuss the question. The court considered the case apparently

A few cases have been included in this as standing not only upon the status of the note where the question of expenditure is governor as such, but also upon his right not mentioned though necessarily involved as a citizen and taxpayer, and said: “A and it should be borne in mind that the resident taxpayer has the right to enjoin question of expenditure is perhaps of minor the illegal creation of a debt which he, in importance in cases, for instance, relating common with other property holders and to the validity of elections or of the submis- taxpayers, may otherwise be compelled to sion of constitutional amendments, etc. pay. . In this case the acts enjoined

are ministerial in their nature; they inAction by citizens or taxpayers sustained. volve no discretion; the interests and rights

The action seems generally sustained in of all the people of the state are thereby California, Florida, Hawaii, Illinois, Indi- vitally affected; the individual rights of ana, Maryland, Oregon, Pennsylvania, and the complainant as a citizen, a taxpayer, Tennessee, and perhaps in Colorado and

and an elector are also substantially afKansas.

fected in common with other taxpayers

and electors by the indebtedness incurred -California.

and by the acts performed. There is no In Livermore v. Waite, 102 Cal. 113, 25 considerations, in the light of reason and

adequate remedy afforded by law. These L.R.A, 312, 36 Pac. 424, an injunction was granted as prayed for by a taxpayer and a ant, who sues as governor and also as a

the authorities, clearly make the complaincitizen of the state, restraining the secre. tary of state from submitting to the voters, citizen, taxpayer, and elector, a proper parand incurring expenses in connection with, ty to these injunction proceedings.' a proposed amendment to the Constitution, on the ground that the same had not been

-Hawaii. legally adopted by the legislature, and that

In Lucas v. American-Hawaiian Engineerit was by its terms inefficient as an amendment to the Constitution, and would be in ing & Constr. Co. 16 Haw. 80, a citizen and operative if approved by the people. The taxpayer enjoined the superintendent of court did not discuss the right of the plain public works of the territory from signing tiff to bring the action, nor did it refer to

or approving any vouchers for work done or the statute providing that "an injunction materials furnished under a contract with cannot be granted

to prevent the

the engineering company, and enjoined the execution of a public statute by officers of auditor of the territory from issuing warthe law, for the public benefit."

rants for payments for work or labor done

or materials furnished under said contract, -Florida.

and enjoined the engineering company from

receiving any money under such contract, In Crawford v. Gilchrist, 64 Fla. 41, 59 'the contract being illegal on the ground Mr. Daniel Wendling, with Mr. R. G. | Agri. College, 221 U. S. 636, 642, 55 L. ed. Pleasant, Attorney General, for appellees: 890, 894, 35 L.R.A. (N.S.) 243, 31 Sup. Ct.

The money being in the treasury, and in Rep. 654; Louisiana v. McAddo, 234 U. S. the possession and under the control of 627, 58 L. ed. 1506, 34 Sup. Ct. Rep. 938; the state, the state alone has a right and Minnesota v. Hitchcock, 185 U. S. 373, 387, interest to be heard, and must be made a 46 L. ed. 954, 962, 22 Sup. Ct. Rep. 650; party, which cannot be done without its Kansas v. United States, 204 U. S. 331, consent.

333, 51 L. ed. 510, 511, 27 Sup. Ct. Rep. Louisiana v. Jumel, 107 U. S. 711, 27 388; Lord & P. Chemical Co. v. Board of L. ed. 448, 2 Sup. Ct. Rep. 128; Louisiana Agriculture, 111 N. C. 135, 15 S. E. 1032; ex rel. New York Guaranty & I. Co. v. Tate v. Salmon, 79 Ky. 540. Steele, 134 U. S. 230, 33 L. ed. 891, 10 No one can question the constitutionalSup. Ct. Rep. 511; State ex rel. Hart v. ity of a law unless he has an interest in Burke, 33 La. Ann. 498; Board of Public the matter and shows some injury that wiil Works v. Gannt, 76 Va. 455; Butler v. result to him by the enforcement thereof. Ellerbe, 44 S. C. 256, 22 S. E. 425; Smith Reid v. Eatonton, 80 Ga. 755, 6 S. E. v. Reeves, 178 C. S. 436, 44 L. ed. 1140, 602; Gibbs v. Green, 54 Miss. 592; Mason 20 Sup. Ct. Rep. 919; Hopkins v. Clemson 'v. Rollins, 2 Biss. 99, Fed. Cas. No. 9,252; that the plans and specifications were too for the necessary and extraordinary exindefinite to be the basis for competitive penses thereof, and to enjoin the treasurer bids. The court stated that the right of a from paying any money out of the public taxpayer to bring suit to restrain a public funds of the state on any such warrant, officer from doing an illegal act had been should one be or have been drawn, on the settled in that jurisdiction since the case of ground that the legislature had no power Castle v. Kapena, 5 Haw. 27.

to make any appropriations for the canal In Castle v. Kapena, supra, the court under the provisions of the state Constituseemed to be of the opinion that at the tion. suit of a citizen and taxpayer of the kingdom of Hawaii, an injunction might lie

-Indiana. against the minister of finance preventing him from selling bonds at less than the N. E. 1, the court sustained an action

In Ellingham v. Dye, 178 Ind. 336, 99 statutory figure at which he was authorized brought by a voter and taxpayer suing for to sell them; the court below had granted himself as a citizen, elector, and taxpayer, a mandamus, and the writ was discharged apparently on the ground that this was not to enjoin the secretary of state of the state the proper remedy. The defendant, how- of Indiana and certain other persons, the ever, denied that he intended to sell the governor being one, constituting the board

of election commissioners, from the performbonds at less than the authorized rate.

ance of their ministerial duties in submit

ting to the people of the state a proposed -Illinois.

new Constitution, on the ground that the In Littler v. Jayne, 124 I11. 123, 16 N. E. legislature had no power thus to propose a

new Constitution. 374, it was held that a taxpayer suing for

The court stated that himself and for all other taxpayers of the the fact that only a small proportionate state was entitled to an injunction restrain- part of the cost of the election would fall ing the state house commissioners from upon the appellee as a taxpayer was not making, signing, or approving vouchers for of itself sufficient to destroy his competency

to sue. any expense incurred under a certain contract for the making of statutes for the

- Maryland. state house, and from using any portion of the money appropriated for the completion

In Christmas v. Warfield, 105 Md. 536, of the state house, for the purpose of pro- 66 Atl. 491, it was held that the plaintiff,

ring or placing such statutes in said who was a resident and taxpayer of the building, on the ground that the contract state, had such a special interest in the was not publicly let in compliance with the subject-matter as to entitle him to maintain statute, but let contrary to its provisions; a suit to restrain the unauthorized destrucand the fact that the vouchers required the tion of valuable state property, or the unapproval of the governor did not prevent warranted expenditure of the funds of the the relief.

state by the defendants, who, assuming to In Burke v. Snively, 208 Ill. 328, 70 N. E. act as the state tobacco warehouse building 327, the court sustained the right of a citi-commission under an act of the legislature zen and taxpayer to sue the commission pronounced unconstitutional by the court, rrs of a certain canal, the auditor of public proposed to tear down certain warehouses accounts of the state, and the treasurer of belonging to the state and build a new warethe state, to restrain the auditor from draw- house. ing his warrant in favor of the commission

-Oregon. ers for certain sums of money appropriated by an act of the legislature for the main- There seems to be but a single case in tenance and protection of the canal, and I Oregon where the payment of state funds. Padelford v. Savannah, 14 Ga. 438; Hayes, members of this commission and of its v. New Orleans, 34 La. Ann. 311; County other expenses. Bd. of Edu. v. Kenan, 112 N. C. 566, 17 S. The object of the present suit is to enE. 485; State ex rel. Goodloe v. Lanier, 47 join this commission from doing its said La. Ann. 568, 17 So. 130; Werges v. St. work, and to enjoin the state auditor and Louis, C. & N. 0. R. Co. 35 La. Ann. 648; | the state treasurer from paying the said Fisher v. Steele, 39 La. Ann. 449, 1 So. per diem and other expenses out of the 882; Jones v. Reed, 3 Wash. 57, 27 Pac. state treasury, on the ground that the said 1069.

acts are unconstitutional,

Plaintiff brings the suit distinctly and Provosty, J., delivered the opinion of the solely in his quality of a citizen and taxcourt:

payer. By act No. 145, p. 259, and act No. It is well settled that a citizen and tax297, p. 607, of 1914, the legislature created payer of a municipality has a standing as a commission “to investigate the past and such to enjoin the making of an illegal present conduct and management of the disposition of the corporate funds. Bryant affairs of the government,” and provided v. Logan, 56 W. Va. 141, 49 S. E. 21, 3 for the payment of the per diem of the ' Ann. Cas. 1013. has been enjoined at the suit of a citizen individual taxpayer whose burdens would and taxpayer, but the courts have several | be increased by the wrongful acts of public times asserted the right of the citizen tax- officers, and where a fraudulent or illegal payer to bring an action against officials, diversion or misapplication of the public not distinguishing between municipal and funds is about to be consummated, has such state officials. Some of the cases are con- an interest, by reason of the special and fusing, if not contradictory.

peculiar injury he would sustain, as would In Sears v. Steel, 55 Or. 544, 107 Pac. 3, give him a standing in a court of equity by the court sustained an action brought by a injunction to restrain such acts and prevent citizen and taxpayer against the secretary such diversion of the public funds. Čarman of state and the state treasurer to enjoin v. Woodruff, 10 Or. 133. This doctrine is the issuance and payment of a warrant so well established and sustained by the ununder an act in regard to highways claimed doubted weight of authority in the United to be unconstitutional.

States that it is unnecessary to enumerate In Sherman v. Bellows, 24 Or. 553, 34 the cases sustaining it. The taxpayer must, Pac. 549, an action brought by a citizen however, present such a case as will bring and taxpayer of the state against the him within the ordinary equitable rules trustees of the Oregon Soldiers' Home, the which govern when relief by injunction is court said: "While there is an irreconcil-sought. He must show that some act is able conflict in the decisions upon the right threatened or imminent which will result of a taxpayer in his own name to restrain in some material injury to himself, for by injunction a municipal corporation and which there is no adequate remedy at law.” its officers from illegally creating debts, or And the court declined to enjoin such board disposing of the corporate property commissioners from erecting a branch of funds, we think the decided weight of au- the insane asylum at a place other than the thority supports the doctrine that he may capital, although the Constitution provided invoke the aid of a court of equity to obtain that “all public institutions should be losuch relief whenever it is made to appear cated at the seat of government,” it not apthat such illegal act of the corporation pearing that there would be any additional would increase his burden of taxation.” And cost from the erection of the building where the court refused to restrain such trustees it was proposed, over erecting it at the from purchasing land for a site and locat- capital, or if so what the difference would ing the Soldiers' Home at a certain place, be. Further proceedings in the same case on the ground that the plaintiff did not al- came before the court in 28 Or. 498, 31 lege that, in consequence of the proposed lo- L.R.A. 473, 43 Pac. 471, wherein it was cation, his property would be subjected to held that the relator had not shown that any burden of taxation or that he would he would be damnified by reason of the losustain any other special injury.

cation and construction of the building at In State ex rel. Taylor v. Pennoyer, 26 the place proposed, the court also stating: Or. 205, 25 L.R.A. 862, 37 Pac. 906, an ac- "The judiciary acts, not upon its own motion brought in the name of the state by a tion, but only when some suitor duly aucitizen and taxpayer against the board of thorized by law presents, in due form, a commissioners of public buildings, consist-cause appropriate for its cognizance. His ing of the governor and other officers, the machinery may be set in motion by private court considered that the case was the same suitors, in some form or another, in all as if brought by an individual, and failed cases where civil or property rights are to distinguish between state and municipal being invaded or intrenched upon to their inofficers (referring to the Carman Case, jury or damage, be the suitor ever so huminfra, which was against county officials in ble, or the injury to be encountered ever relation to county funds), and said: "It is so small; but in all cases of purely public the settled doctrine of this state that an concern, affecting the welfare of the whole

or

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