parliamentary standpoint, with the preceding resolution. It might have been that a majority of the jury considered $400 too much for the service to be rendered by the attorneys, or considered that the authority conferred upon the president to employ counsel carried with it the power to agree with them in the matter of their fees, or considered that it were better to wait and see what service would be rendered, what the result of the suit or suits would be, and then pay on a quantum meruit. 2. Under the second defense urged, the contention of the town of Mansura is, conceding that the parochial election held in 1900, establishing prohibition throughout the parish beginning with January 1, 1901, was binding upon the incorporated towns within the parish, it was so binding for 12 months only, and that at the end of 12 months it was within the power of an incorporated town by majority ballot of its voters to emancipate itself from the effect of the election and thereafter to authorize the sale of intoxicating liquors, and this election by the town, thus emancipating itself from the edict of prohibition pronounced anteriorly by the parish, must be respected by the latter for 12 months. That is to say, the parish having spoken in favor of prohibition, its voice is binding on the towns for one year, but, meanwhile, if, towards the close of the year, a town, by an election held within its limits, declares for liquor selling in the town, the parish is without authority thereafter, for the term of 12 months, to gainsay this. The act of 1884 (No. 76) gives to the police juries of the parishes and to the municipal authorities of the towns and cities of the state the exclusive power to make such rules and regulations for the sale or prohibition of the sale of intoxicating liquors as they may deem advisable, and to grant licenses to, or withhold licenses from, drinking houses and shops within their limits, as a majority of the legal voters of any such parish, city or town may determine by ballot. The same authority, too, is extended to wards of a parish. The police jury of a parish may authorize a ward election to be held to take the sense of its voters on the question of prohibition vel non. The act further directs that the election for which it makes provision shall be taken whenever deemed necessary by a police jury, or by the authorities of a town or city, "provided," says the act, "that said election shall not be held more than once a year." Then follows a second proviso which is interpreted to mean (1) that whenever the majority of the votes cast in a ward, if only a ward election is held, shall be against granting licenses for the sale of liquors, said vote or decision is to govern and control throughout the ward, including within its grasp incorporated towns and cities situated within the limits of the ward; (2) that whenever the majority of the votes cast in a parish, if an election throughout the parish is held, shall be against granting licenses, said vote or decision is to govern and control throughout the parish, including within its grasp all the wards and incorporated cities and towns within the limits of the parish. And this shall be the case, concludes the act, (meaning the binding of the cities and towns), "as fully and completely as if said election had been held by authority of the towns or cities themselves." The clear intention of the statute is that local option is conferred, first, upon those political subdivisions of the state called "parishes"; next, upon the subdivisions of a parish called "wards"; and, lastly, upon incorporated cities and towns within the parish or wards. If the parish speaks as a whole in favor of prohibition, by means of an election held throughout its limits, its voice binds all the lesser political subdivisions, to-wit:—the wards and municipalities, with this limitation, that 12 months after the parish shall have established prohibition a town or city, acting pursuant to ordinance adopted by its governing body, or a ward, acting pursuant to ordinance of the police Jury calling an election for such ward, may vote to authorize liquor selling within its limits. If a parish, as a whole, does not take action to establish prohibition, and a ward of the parish wishes to do so, the police jury may authorize such ward to hold an election, and if the vote be in favor of prohibition it binds the cities and towns within the limits of the ward, with the limitation that 12 months after the ward shall thus have established prohibition, a town or city within its limits may vote to authorize liquor selling in the municipality. If neither the parish as a whole, nor a ward as a whole, within which is an incorporated town, takes action to establish prohibition, such town, acting through its own officials, may hold an election, and if the vote be in favor of prohibition it holds good, in so far as the town authority extends, until the people of the town vote differently at an election, which is not to be held before 12 months, from the first election, expire. No parish, nor ward, nor city, nor town, acting by way of an election on such matter, can hold a second election within the year of the first. Such is the meaning of the first proviso of the act which reads:-"that said election shall not be held more than once a year." If the people of a parish, by ballot, may vote liquor selling out of the parish, so that, as we have seen, the prohibition is binding for 12 months on all the wards and towns and cities within the parish, such a vote taken throughout the parish every 12 months would continue prohibition in and throughout the parish indefinitely. It is only where a parish fails to act, in the way of repetition of the edict of prohibition, within 12 months of its former election, or of the beginning of the pro hibition period, that a town or city can take action to emancipate itself from the restraint put upon it by the parochial election. Once a parish speaks for prohibition its voice is paramount throughout its limits, binding on all, citizens and municipalities alike, and continues so for 12 months, and if at or near the close of the 12 months it speaks again for prohibition, it silences any contrary voice which, meanwhile, may have been spoken in towns or cities within its limits. When prohibition is once established by vote in a parish, it continues until the people of the parish see fit to change it through the same means by which it was established, to-wit:-by ballot, with the exception noted, viz:-that a ward, or an incorporated town or city within its limits may, by election held after 12 months, change it as to itself. Practically, therefore, in order to maintain prohibition throughout a parish as an entirety, supposing the sentiment of the people to be that way, it is necessary for the police jury to submit the question to an election every 12 months. And if the question be so submitted and prohibition be voted, it heads off or bars action by the towns looking to their emancipation therefrom. That is the present case. Avoyelles Parish, in 1900, voted prohibition, to begin January 1, 1901. Towards the end of 1901, it voted prohibition again, to begir January 1, 1902. When it uttered its voice at this second election, it silenced and nullified the voice of the town of Mansura which had spoken in November, 1901, for liquor selling in that town beginning January 1, 1902. There is no warrant to be found in the law, nor any decision of this court, for the contention that when a town--a part of a parish-declares by ballot for the sale of intoxicating liquors, such action is binding on the parish as a whole for 12 months from the date of the town election. The decisions relied on by defendant as sustaining this view, to-wit:-Citizens and Taxpayers of Natchitoches Parish v. Board of Sup'rs of Parish of Natchitoches, 49 La. Ann. 641, 21 South. 742; Police Jury of De Soto Parish v. Town of Mansfield, Id. 797, 21 South. 598; State v. Jackson, 105 La. 438, 29 South. 870; and Police Jury v. Descant, Id. 512, 29 South. 976.-do not do so. In none of those cases was the question here presented involved, and it is not considered that the views herein advanced are, in any way, in conflict with those there expressed. The law, which declares that when a "majority of the votes cast in a parish, if an election has been held for the whole parish, shall be against granting licenses for the sale of intoxicating liquors, said vote or decision shall govern and control the action of any ward, incorporated town or city within the limits of said parish, as fully and completely as if said election had been held by authority of said town or city," fully sustains the pretensions of the plaintiff and the judgment appealed from, so holding, is affirmed. BREAUX and MONROE, JJ., dissent. (107 La.) POLICE JURY OF PARISH OF AVOYELLES v. CORPORATION OF MANKSVILLE. (No. 14,306.) (Supreme Court of Louisiana. March 3, 1902.) INTOXICATING LIQUORS-LOCAL OPTION ELECTION-VOTE OF PARISH. If a parish holds an election to take the sense of the voters therein on the question of granting or withholding licenses to sell intoxicating liquors, and the vote is in favor of prohibition, it is binding upon the incorporated towns in the parish for 12 months, and if before the 12 months expire the parish holds another election, and the vote is again in favor of prohibition, it continues to bind the towns, notwithstanding the latter, meanwhile, may have voted in favor of liquor selling. Breaux and Monroe, JJ., dissenting. (Syllabus by the Court.) Appeal from judicial district court, parish of Avoyelles; G. H. Couvillon, Judge. Action by the police jury of the parish of Avoyelles against the corporation of Manks ville. Judgment for defendant, and plaintiff appeals. Reversed. Joseph Clifton Cappel and E. J. Joffrion, for plaintiff. Tucker Horace Couvillon, for defendant. BLANCHARD, J. The cause of action herein is identical with that set forth in plaintiff's petition in the case entitled "Police Jury of Parish of Avoyelles v. Corporation of Mansura," No. 14,323 of the docket of this court, a decision in which, favorable to plaintiff, is this day handed down (31 South. 650). Here, an exception of no cause of action was sustained by the trial judge and the suit dismissed. The opinion of this court in the case mentioned above negatives the conclusions of law thus arrived at, and for the reasons there assigned the judgment herein must be reversed and the cause remanded. It is, therefore, ordered that the judgment appealed from be annulled, avoided and reversed, and it is now adjudged and decreed that this cause be remanded with instructions to reinstate the same on the docket of the court a qua for further proceedings according to law, costs of appeal and those of the lower court pertaining to the exception filed, and trial thereof, be borne by defendant and appellee. BREAUX and MONROE, JJ., dissent. cession to the extent of his interest, has a right of action. 2. As to this heir, the will of the de cujus not having been legally probated, he may be heard to have all the proceedings leading to the judgment probating the will, as well as the judgment itself, decreed null. 3. The proceedings and judgment probating the will are null, and the judgment appealed from is affirmed. (Syllabus by the Court.) Appeal from judicial district court, parish of Iberia; T. Don Foster, Judge. Action by J. Gab Duperier against Mrs. Mathilde Berard, widow of Dr. Fred Duperier. Judgment for plaintiff, and defendant appeals. Affirmed. Todd & Davis, for appellant. Walter J. Burke & Bro., for appellee. BREAUX, J. This suit was brought to set aside the proceedings had in the matter of probating the will of the late Dr. Frederick Duperier, who died in 1900, leaving eight children, one of the number being the petitioner, to set aside the will. Plaintiff asks for judgment recognizing him as forced heir of his deceased father, and as such, together with his brothers and sisters, vested with the seisin of the estate. The legatee is the widow of the late Dr. F. Duperier, She petitioned the court for a judgment probating the will. In accordance with her petition, judgment was rendered, although plaintiff had not been legally cited. The return shows that Mrs. Duperier's petition to probate the will was never legally served on the petitioner here, but on another person, without showing that the one upon whom it was served had authority to represent this heir. This service was neither personal nor domiciliary. The judgment from which the legatee appeals states that the will was in the nuncupative form, by public act, and decrees that the testatrix be placed in possession of all the property of the testator, and that she "have immediate seisin of said estate in full ownership and in fee simple." Petitioner timely objected to the admissibility of any proof that the will had been probated, on the ground that he had not been regularly cited. Petitioner, appellee here, avers, in substance, that his mother is selling the property of the estate and disposing of it as her own, in violation of his rights as forced heir. Petitioner, having asked to be recognized as forced heir, is entitled to all the rights afforded by forced heirship. Now that the issue is tendered, it is no longer possible to consider the legatee as universal legatee entitled to all the property, and it was proper to set aside a judgment which precluded this heir from asserting his right to the legitime, and particularly in view of the fact that it was not rendered contradictorily. We will here state that the will is only null to the extent that it disposes of property to the prejudice of the reserve of the heir. Of course the forced heir will have seisin only to the extent of his interest, and can exercise no control save to the extent of that interest. Further, we are anxious to state, on leaving the transcript, that the legacy to Mrs. Duperier is not stricken with nullity, but that it can, if the heirs insist, only be reduced to the disposable portion. We have to deal with the cold letter of the law, which requires the will to be probated contradictorily with the heirs, and, further, that the forced heir is entitled to possession to the extent of his interest. This, we understand, is the purpose of the decree. We have no alternative save to affirm it and let the case be returned in order that this heir and his mother may settle their respective interests. We agree with the judge of the district court that the proceedings in matter of probating the will and the probate itself are null. For these reasons, the judgment appealed from is affirmed. 1. An order of court directing a party to the suit to set out his claim more specifically will not be reversed unless it is manifest that error has been committed. 2. It is not unreasonable to require of the pleader who sues on a contract to disclose whether he sues on a written contract or on a verbal contract. 3. Facts essential to sustain the suit should be stated, 4. A plaintiff is not entitled, as a matter of right, to an examination of defendant's books and papers to an extent sufficient to enable him to make sufficient allegations to sustain his action. His ground of attack should be sufficiently explicit to enable him to compel his adversary to produce needful books and papers on the trial. 5. Agreement of counsel, subject to different constructions, will not be taken in the presence of a disagreement as to the extent it was intended to include. (Syllabus by the Court.) Appeal from civil district court, parish of Orleans; Fred D. King, Judge. Action by E. H. Lombard against the Citizens' Bank of Louisiana. Judgment for de fendant, and plaintiff appeals. Affirmed. Benjamin Rice Forman, for appellant. Henry Denis and Branch K. Miller, for appellee. BREAUX, J. Appellant complains of a judgment of the district court dismissing his suit on exception. Appellant alleged, in his petition, that defendant is indebted to him in the sum of $9,450, because he, in 1831, was employed by the board of directors as land agent, and to look after the lands and property belonging to the mortgage department of the Citizens' Bank at an annual sal ary of $3,000; that his contract of employment has been renewed annually, including the year which ended on the 1st of February, 1901. We quote from plaintiff's petition that "up to the first of January," 1891, the said sum of $3,000 was annually paid him, but that thereafter he paid back at the rate of $100 per month, or allowed the cashier to deduct, on account of an indebtedness, which, up to the time, to wit, the 2d of January, 1894, was canceled and paid up, but that thereafter the president of the Citizens' Bank wrongfully, illegally, and without his consent, retained from his salary $100 a month for 78 months, which has never been paid to him, the petitioner, $7,800, which is still due and unpaid, and your petitioner continued at the annual salary on his contract, renewed annually, at $3,000 a year, in the service of the said bank, until the 17th of July, 1900, when he was discharged, and the action of the president in discharging him was, on the 3d of August, 1900, ratified by a majority of the directors of the bank, and they broke their contract. He offered to continue until the end of the year, which was refused. The bank owes him the whole of the July salary, less $110 drawn on account, during which month he rendered services for which he is entitled to a balance of $140, and for the further sum for damages caused by the breach of contract for the residue of the year from the first of August, 1900, to the first of February, 1901. Defendant filed an exception to this petition, on the ground of vagueness, and averred, further, that plaintiff should allege whether he declared on a written or a verbal contract; if verbal, with whom it was actually made; if in writing, defendant was entitled to oyer; that defendant is entitled to know in what mode the consent of the board of directors was given, whether by resolution or otherwise; if by resolution, its date and the form and manner the board manifested its consent; that plaintiff should set forth the nature of the indebtedness. Plaintiff, on the day of the trial, offered to file an answer to the exception, in which he averred that the contract of employment was entered into when he was employed originally, and that it was changed and modified from year to year afterward; that his salary originally was to be $2,000 a year and 10 per cent. upon the revenues which he would succeed in realizing in the department of which he had charge, and that, subsequently, it was agreed that he should have a fixed salary of $4,000 a year, and afterwards this salary was reduced by $1,000, and it thus remained until the contract was broken by the president of the bank; that these changes and modifications appear in the correspondence of the Citizens' Bank, and in its books and minutes; that it is impossible for him to produce these books and papers. This answer was refused by the court, and plaintiff reserved a bill of exception to the ruling. The exception of the de fendant was then maintained, and the plaintiff was directed to amend his petition. Plaintiff then filed a supplemental and amended petition, in which he reiterated his demand, and dwelt, at some extent, upon the particulars of his claim. With reference to his contract, plaintiff, in his supplemental petition, avers that it will appear by the resolution of the board of directors and the books of the bank when his contract was made. Plaintiff complains of the action of the president in deducting an amount monthly from his salary in satisfaction of a debt of which he did not owe the amount. The district court, in ruling after the supplemental and amended petition had been filed, said, in substance, that plaintiff must set forth a cause of action and whether he declared upon a written or oral contract; if upon the former, date and contents should be given, and if in defendant's possession when called upon, should file it. If upon a verbal contract, needful particulars should be alleged to enable plaintiff to prove up his cause. Plaintiff declared on a contract to which he particularly refers in his pleadings. He was directed by the court to state whether or not it was in writing. No good reason suggests itself upon which to sustain the refusal. We have attentively read the brief, and have not found that any grounds at all are given for refusing to comply with the court's ruling in this respect. When a pleader declares on a contract, he may be called on to declare whether it is an oral or a written contract; and if he makes no attempt to comply with the direction, it is not improper to dismiss the action. It devolves upon the judge of the court of original jurisdiction to make up the record, and whenever, in his judgment, a motion to make more specific allegation is granted, we, in the nature of things. are not hasty in reversing his judgment entered, in order to make records complete. The district court has authority, in case the allegations of facts are not specific enough, to issue such order as will result in the bringing a new suit with consistent averments. There are slight incongruities in the petitions. In the first, the year in which the contract was entered into was 1891. In the supplemental petition, plaintiff's employment commenced in 1873. In the original petition plaintiff sets forth that his salary was the amount of $3,000 per annum. In the supplemental petition, plaintiff avers that, in addition to the salary stated, he was entitled to an amount contingent upon his success in managing the business he had in charge. Plaintiff also averred that from the 1st of January. 1891, to the 2d of January, 1894, he allowed the cashier to deduct $100 a month on account of an indebtedness which was paid in full on the day last mentioned, but that the president of the bank continued to deduct from his salary until the deductions amounted to $7,800. The court directed, as we understand, that more specific allegations be made of the indebtedness upon which plaintiff has paid $100 a month. Plaintiff claims a note of $5,000, and complains of the action of the bank in charging him with this sum in their dealings. No allegations of the date of this note are made, and no good reason shown why this note should not be referred to with more particularity. Plaintiff also alleges that defendant held his mortgage note prescribed on property in the parish of St. Bernard which was foreclosed in 1888, and that the president of the bank agreed with him that, if he interposed no objection to the sale, the proceeds should be taken as satisfying his indebtedness. The reason given for not making specific allegations regarding this record of foreclosure of mortgage in the parish of St. Bernard would be sufficient, and would be maintained for not producing the record on the trial of the case, but it is not sufficient to supply deficiency of allegations of a petition. We do not infer that this record was withheld from plaintiff in order to prevent him from making all needful allegations to sustain his demand. No reason is given why the petition should not set out whether plaintiff sues on a written or verbal contract, but counsel says that under the ruling complained of by him if a plaintiff who has been 28 years in the service of the defendant, and whose contract has been changed from time to time, cannot recall the precise date when these contracts were changed, and has not access to the records of the bank, he is to be thrown out of court and denied his just demand. We do not construe the ruling complained of as plaintiff chooses to contend. Dates and matters of description are not essential to the extent of always requiring the dismissal of the action. Dates may be supplied; errors corrected. The pleader, however, must set out the contract upon which he bases his action. He has the burden of allegation. He must set forth his ground of attack with some certainty. The court determined, no doubt, that the multiplicity of averments was slightly confusing, and that it was best, in the interest of all concerned, to relegate the parties to one petition setting forth plaintiff's demand, instead of multifarious issues, as presented. We come to the second ground of complaint, to wit, that defendant would not permit plaintiff to examine its books and papers in order to enable plaintiff to more fully set forth his case. A party is without right to oyer of papers and books to enable him to prepare his attack. He is expected to force an issue sufficiently definite to enable him to compel the one sued to bring into court needful books and papers. To this end he is expected to allege the facts he intends to prove by the books and papers. Plaintiff, in his supplemental petition, says that the date of the contract will appear by the resolution of the board and the books of the bank, and invokes a verbal promise made by Mr. Henry Denis, counsel for the bank, in open court, which the president of the bank subsequently declined to comply with. The letter of the plaintiff's counsel, and the answer, both concise and to the point, explain, and we, for that reason, insert them: "Henry Denis, Esq.-Dear Sir: You said yesterday in court that I need not take out any subpoena duces tecum on the bank. Will you kindly give instructions that Col. Lombard can have access to the books and papers and take copies, and oblige. Yours truly, B. R. Forman." Answer: "Mr. B. R. Forman-Dear Sir: Under all circumstances, your request to have the books, minutes, and papers of the bank shown to Mr. Lombard would be too indefinite; but Mr. Nott says that he does not ratify my statement as to willingness on the subject. In haste, yours, etc., Henry Denis." We do not think that the court erred in de clining to enforce an agreement of counsel which, doubtless owing to the haste of the moment, resulted in a disagreement with regard to the scope of the agreement. We have found no error in the judgment of the district court. It is therefore ordered, adjudged, and decreed that it be affirmed. (107 La.) ASH v. SOUTHERN CHEMICAL & FER- 1. The sheriff has a standing in court in a proceeding against an adjudicatee to set aside an adjudication because of nonpayment of the amount of the bid. 2. Such proceeding may be by rule. 3. Where by the certificate of mortgages read at the sale there appear to be outstanding special mortgages resting on the property sold, the adjudicatee, after paying to the sheriff the amount of the writ and costs, may retain in his hands, to satisfy said outstanding mortgages, the surplus of the purchase price. 4. The nullity resulting from the sheriff's failure to announce that the adjudicatee shall have the right to retain in his hands the surplus of the purchase price, as stated in No. 3, is relative, and the sheriff is without interest and without standing to invoke the same. 5. And even if the sheriff had such standing he could not be permitted to urge such nullity in the present proceeding, which is based on the theory of there having been a valid sale, of which the adjudicatee has failed to pay the price. (Syllabus by the Court.) Appeal from civil district court. parish of Orleans; Walter B. Sommerville, Judge. Action by Henry Ash against the Southern Chemical & Fertilizing Company, Limited. Judgment for plaintiff. Under a writ of seizure and sale, the property was adjudicated. Proceeding instituted to set aside the |
