LAWS AND STATUTES-Continued.
10. By the laws of Louisiana native born free persons of color were
in the full enjoyment of the so-called private rights in 1844.
Walsh v. Lallande, 188.
11. The object of section forty of the revenue law of 1871 is to give
the taxpayer notice, that he may have an opportunity to have
errors corrected and a just assessment made. Where it is proved
that he had such notice, he has no cause to complain.
Gay v. Hebert, 196.
12. The homestead law, exempting certain property from seizure on a
judgment enforcing a mere ordinary debt, is not unconstitutional.
The rights of the creditor, and not his security, unless the security
forms part of his contract, must be invaded before he can invoke
the constitutional privilege on which he relies. The law in this
case does not affect his vested rights, but only impairs his security
for the payment of his claim.
Robert v. Coco, 199.
13. Construing the statute of twenty-eighth February, 1870, in con-
nection with section 3990 of the Revised Statutes, the sense result-
ing from both is, that section 3990 of the Revised Statutes does not
include within its general sweep the acts of the General Assembly
during the session of 1870. On the contrary, the acts and jint
resolutions of the General Assembly passed during the sess on of
1870 should take precedence of the act adopting the Revised Stat-
utes, and be held as repealing in whole or in part any of those
revised statutes that might be found to be in opposition or in con-
flct with the enactments or joint resolutions of the session of
1870.
Succession of Winn, 216.
14. The State law of January 13, 1873, merely provides a more speedy
remedy for the settlement of contests for judicial offices. It is
not violative of section 1 of article 14 of the constitution of the
United States. Should it even be adm.tted that the law author-
izes the suit in the name alone of the party claiming an office, the
fact that the State has joined with him in his demand, advocated
by private counsel, does not invalidate the proceedings. Utile per
inutile non vitiatur.
State ex rel. Morgan v. Kennard. 238.
15. The provisions of the act of the Legislature, No. 39, 1873, for
transferring cases are not repuguant to articles >3, 90 and 114 of
the State constitution.
16. With the character of laws as being odious, or entitled to favor,
courts have not to deal.
Collin v. Knoblock, 263.
17. It is only under the statutory provision of 1855 that courts can
proceed, in relation to parish offices, and through the agency of
juries, to supervise the counting of votes, correct calculations,
purge the polls of illegal votes, ascertain and establish majorities.
It is confined to cases where no commissions have issued. Ibid.
LAWS AND STATUTES-Continued.
18. The subject matter of proceedings under the intrusion act is
widely different from that of the statute of 1855. In cases under
the intrusion law, courts can not go beyond commissions legally
issued.
Ibid.
19. Rights may be acquired under a law, notwithstanding that law
may have been subsequently declared to have been unconstitu-
tional. To escape the penalties inflicted by a law, or avoid
responsibilities imposed by it, upon the ground that it is uncon-
stitutional, its unconstitutionality must be distinctly declared
before the penalty or responsibility has accrued.
Factors and Traders' Insurance Co. v. City of New Orleans, 454.
20. In the laws of the United States or proclamations of the President
prohibiting, during the late war, any intercourse and trade
between persons residing within the Federal and Confederate
lines, there is nothing which could prevent a French citizen from
acknowledging a debt and agreeing to pay it, and mortgaging his
property to secure its payment.
Banker v. Durand, 511.
21. When a law is susceptible of two constructions, the one which will
give effect to the law, rather than the one which would render the
law unconstitutional, must be adopted.
City of New Orleans v. Salamander Insurance Company, 650.
SEE CONSTITUTION AND CONSTITUTIONAL LAW, Nos. 11 to 18-
Whited v. Lewis, 568.
1. There is no difficulty in the objection that the plaintiff can not
enforce this claim, because of the informalities of the transfer
thereof by the natural tutor. This is a question that concerns the
minors. The formalities for the alienation of their property being
alone for their benefit, they alone can urge the omission thereof.
But, at the time of the transfer in this case, the heirs were of age,
and they received the money paid by the transferree.
SEE TUTORS AND TUTORSHIP.
1. The Recorder of Mortgages is not mentioned in section 52 of act
42 of 1871, and this court can not supply the omission, if it be an
omission. If the relator has registered mortgages in favor of the
State and the State has not paid him therefor, and his compensa-
tion is not otherwise provided for by law, and his legal demands
have not been complied with, he may have his recourse against
the State, but his remedy is not by mandamus against the Auditor.
State ex rel. Recorder of Mortgages v. Clinton, 285.
2. Where the Board of Selectmen of a city have the right to be the
judges of their own election and of that of their officers, it is not
merely a ministerial duty which they have to perform, it involves
discretion and a mandamus can not be used to enforce the per-
formance of a discretionary duty.
State ex rel. Shorten v. Board of Selectmen of the city of Baton
Rouge, 310.
3. Where the relator sought by mandamus to compel the Selectmen
of the city of Baton Rouge to issue to him a certificate of election
and to recognize him as mayor of that city, on the ground that the
election commissioners had decided he was elected, and that the
Selectmen can not determine that he was not elected, because no
one but a judge can decide the question: Held-That the Board
of Selectmen can, under the eighth section of the city charter, ex-
ercise their discretion so far as to determine the relator's right to
the certificate, and that the use of this discretion is not the exer-
cise of judicial powers in the sense of the constitution, and there-
fore not repugnant to the article ninety-four of that instrument.
The action of the Board of Selectmen is not conclusive of the
rights of the relator. He can sue for the office, but he can not
proceed by mandamus.
Ibid.
4. To authorize a writ of mandamus, there must appear a specific
ministerial duty which the applicant has a direct right or interest
in having enforced.
Mossy v. Harris, 623.
5. Where the pleadings indicate that the application is simply to ob-
tain a judicial order in favor generally of holders of a certain class
of warrants, and not to secure a specific right to a particular party,
it is not a serious contest, and not a case for a mandamus. Ibid.
SEE STOCKHOLDERS AND STOCKS, No. 4-State ex rel. Philips v.
New Orleans Gas Light Company, 413.
1. A married woman can not be sued on the ground that, being shown
to be the keeper of a boarding house and therefore a public mer-
chant, no authorization is necessary either from her husband or the
court.
Moussier & Courcelle v. Gustine & Sauvinet, 36.
2. Articles 121 and 131 of the Civil Code can not be construed to war-
rant the conclusion that the carrying on of any other business by
a married woman than that of merchandise constitutes her a pub-
lic merchant.
Ibid.
3. The words " separate trade" in the latter clause of article 131 of
the Civil Code, declaring that the wife "is considered as a public
merchant if she carries on a separate trade, but not if she retails
only the merchandise belonging to the commerce carried on by
her husband," refer clearly to the trade in merchandise and not
to any other business or pursuit.
Ibid.
4. Where citation is served personally on a married woman authorized
to defend the suit, she is regularly in court, and on its being shown
that she has a domicile in the parish, a notice to which she is enti-
tled can be served on her personally, or at her said domicile,
unless there is some special provision of law requiring another
mode of giving the notice.
Holbrook v. Bronson, 51.
5. Where the husband has not appeared with his wife, in the suit
instituted by her, the latter must show his authorization. Her
own averments, or those of her counsel as to that fact are not
sufficient.
Sommers v. Schmidt, 93.
6. Where the husband joins the wife in her petition, this is sufficient
authorization to her to sue.
Succession of Payne, 202.
7. Where a fair and correct settlement was made between A. Verret
and his sons-in-law, W. H. and J. M. Knight, in which the mort-
gage judgments in favor of their wives against Verret were placed
to their credit and reduced their own indebtedness pro tanto, and
subsequently W. H. and J. M. Knight transferred said judgments
to Adams & Co., and their wives ratified the transfer: Held-That
Adams & Co., obtained no mortgage under said transfer, because
the judgments thus transferred had been extinguished by the
settlement between W. H. Knight, J. M. Knight and A. Verret,
which was a valid one. The husbands could have sold those
judgments or collected the amount of the judgments and used the
money in payment of their debts, or in any other way they had
chosen.
Miltenberger v. Keys, 287.
8. The power of the husband to administer the wife's property is
different from that of an ordinary attorney. One essential differ-
ence is, that the husband may lawfully appropriate to his own use
the money of his wife, collected by him. The attorney can not.
Ibid.
9. Where there is community between husband and wife, the hus-
band is the head of it, and is responsible for the debts of the
community. The death of his wife does not deprive him of the
right to make bona fide settlements for the payments of the debts
of the community, nor do such settlements novate the debts as to
the community. The community property is liable for the com-
munity debts.
Rusk v. Warren et al., 314.
10. Where a suit was brought against a wife after her husband's death,
on a promissory note made by said wife and her husband in solido,
and secured by a mortgage on property standing in the name of
the wife, but purchased during the existence of the community:
Held-That she could not bind herself with her husband by bor-
rowing money to pay for said community property.
Millaudon v. Widow Carson, 380.
11. Parties to a marriage contract in Louisiana can agree therein, that
the property they may acquire by succession or donation during
marriage shall fall into the community of acquets and gains, and
the father and mother of the parties to the marriage can give, for
the benefit of said parties, the whole or a part of the property
they may have on the day of their decease.
Desobry v. Schlater et al., 425.
12. Parties may stipulate as they like, provided the thing stipulated
is not in contravention of a prohibitory law. Any stipulation,
therefore, in a marriage contract, which is not in violation of a
prohibitory law, is binding upon the contracting parties as long
as the contract lasts.
13. All stipulations which the law permits to be made in marriage
contracts may be altered by the husband and wife jointly before
the celebration of the marriage, but not afterwards. As they bind
themselves at the time of the marriage, so they remain bound so
long as the marriage lasts.
Ibid.
14. Whether the stipulations of a marriage contract can be subse-
quently changed or not, it is clear that the changing of said con-
tract would be, in reality, a new one, and that, as such, it would
have to be entered into by all those who were parties to the first
contract, and that the stipulations to that effect should be posi-
tively stated.
Ibid.
15. The fruits of community property belong to the community and
are liable to seizure in payment of a community debt. Ibid.
16. Emancipation gave to the slave his civil rights, and a contract of
marriage, legal and valid by the consent of the master and moral
assent of the slave, although dormant during the slavery of the
parties, produced, from the moment of their freedom, all the
effects which result from such contract among free persons.
Pierre v. Fontenette et al., 617.
17. But the marriage which was to produce these civil results must
have existed at the time the emancipation took place. If the mar-
riage was dissolved before emancipation, the parties' rights were
no longer dormant; they were dead; and the subsequent emanci
pation, as it could not resuscitate the marriage, could produce
none of the civil fruits which are the results of a civil marriage.
SEE COMMUNITY.
1. The object of registry both of sales and mortgages is notice, and
when the recorder registers a private sale, whether he has done so
on sufficient proof is immaterial as regards notice to the public;
the object of the law is fulfilled, and subsequent purchasers are
affected.
Pierce v. Clark and sheriff, 111.
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