The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1849-06-13
Supreme Court of Louisiana.

Condensed Decisions-NEw ORLEANS, June 4. 1916
Under the Act ofApn 49, 1896 reincorporapg the city
Lafayette the City Council authorized by yGte
twOhifds oil the members present, provided there be
quorum, to declare office of the corporation vacan
| and to order election whenever the officer com
pianed of has been found guilty of gross negligence
maeasance in Office charges preferred and satsfac
| torily established.
WIN. O. WARNoCK Us. THE MAYOR, ALDER
MEN AND INHABITANTS OF TIE CITY OF LAFAY
EETTE: Appeal from The Third judicial Distr,c
Court, Parish Of Jefferson. .EUsTIs, &. J.. Pc
curidm: The petition charges that the plaintiff
was duly elected on the 3D. of May, lS47, Harbo
Master for the city of Lafayette for the term of
year, and that he discharged the duties of the office
| until tie 18th Nov, 1647, when he was suspended
from office by the Mayor and City Council of said
city, and that on the 18th of Dec. his said office
| was declared vacant; that at new election or
dered by said Mayor and City Council, ID. Adams
was elected 10 said office, and performed the du
ties since the Both Dec, lS47.
The petition charges that the proceedings OF. tho
! City Council were without any of the iornaiitIes
of law and in violation Of the Acts OF the Legila-
| ture under which the said Mayor and Council held
| their authority; that his suspension and removal
from Office We're entirely unwarranted, the vote by
| which he was removed from office having been by
a less number of members than that required by
law for the removal of officers of the corporation
| that there never was proper notification made OF
the charges against the plaintiff nor opportunity
| TO defend himself afforded 10 hun; that he has
| always faithfully and honestly discharged the du-
lies of his office and accounted to the proper Off
GERS for the moneys received by him by virtue of
| his office aforesaid.
The object of this suit is to recover from the de-
PENDANTS, who are the Mayor, Aldermen and In
habitants of the city of Lafayette, the fees and
emOuments of the office accruing during the year
for which he was elected.
The defence is that the plaintiff was suspended
from office and the office declared vacant by the
City Council of Lafayette in consequence of the
plaintiffs mafeasance in office, he having been a
defaulter and applied the moneys received by him to
his own use. The District Judge gave judgment
in favor of the defendants, and the plaintiff has
appealed
by the Act Of A prii 90, 1916, entitled an Act to
reincorporate the city of Lafayette, the Harbor
Master and certain o,her officers of the corpora
ton 10 be elected annually by the qualified
voters of said city. BY The h >ec,ion of said Act
The City Council IS empowered 70 decide upon the
election an qualification of their Ulcers and
Of the officers elected under the Act, ana in of
gross negligence mdlieasauce ufiice Of any
officer Il Us elected on charges preferred lpd sis-
fac!oTi!y established the SAID City Council ilas The
right, ty vote of two-hrds of their own body IL
declare such Office vacant and to order new
ee":,.:.
We are satisfied from the evidence that the Ctr
ConIc!', in suspending the plaintiff and removing
him from Giiice by declaring the Office vacant,
moi oniy Justified in so doing, but could not have
acted Otherwise, consistently with their duties 10
their constituency; and that their proceedings
the charges made were legal and proper. The only
ohIecl.Ui among those made by the plaintiff to the
validity of their proceedings, which We think il
material TO notice is that which relates to the num-
Der OF Votes hy which the vacancy of the office
was declared.
The Council is composed of ten members At
the session in question nine members only were
present. The votes on the resolution by which the
W heel o1 sly in iaEo of
and three against it. Thus, two-thirds of those
present voted 10 create the vacancy, but not two
thirds of The whole number OF members consitu
ting the Council BY the 1lh section, before
quoted, the vote required to create vacancy is
two-thirds of their own body, which it is insisted
means two-thirds OF all the members composing
that body.
In aid of this construction, the counsel for the
plaintiff refers to the debates of the Convention
which formed the Constitution, p. 675. We should
infer from these debates, that the terms, Their oWn
body, did refer necessarily to the whole number
of members elected. The debate upon the
removal Of the Judges by address Of three-iourths
of each House Of The General assembly. The terms
are not the same, and the argument is merely one
of analogy. We should rather incline to the opin-
Jon that the vote required to remove, was twothirds
of the body as legally constituted by the presence
of quorum. We observe the terms used on simi-
lar occasions in our Constitution, and our egisla-
ton is made more definite, requiring a proportion
of the members elected or of members present. as
the case may be. If the meaning of the terms be
doubtful, the French text removes every doubt as
10 the purpose and intention of the Legislature.
Breedove Us. Turner, 9 Martins Rep, 1853. The
corresponding words in French g LIE conseil
aura lie droit etc, and the 10Th section OF the act
provides that the Mayor, in his absence or ina
biy to act, the President and a majority ut the
members elect of said Council, shall form quo
rum to do business. The vote of the six members
was therefore sufficient TO create the vacancy.
Judgment below affirmed with costs.
Where A. filed third opposition the seizure of certain
slaves, in the suit of b. C., and ending this oppos-
ton acquired fom d. resulting from prior
judgment against C, and afterwards the title TO the
slaves set up by him in his opposition was adjudged to
be simulated and void Held, That A. thereby
estopped from awaiting himself OF the Judgment
qured by him from ID. adversely TO b., the original
plaintiff. Justices sdelI and King dissenting.
GREEDLEy & WHITEHEAD US. JAMES K. Con-
NER-R. r. BARROW, Plaintiff in rule. Appeal
from the Fifth District Court Of Nen Orleans.
| In this case the judges were equally divided, and
consequently the decision in the lower court against
Barrow was affirmed. Justice Rost concurred in
the opinion of Chief Justice Eustis, and Justice
King in that of Justice Sdell Eustis, C. j..
Plaintiffs seized certain slaves the property Of
defendant Conner, under execution. Barrow
filed a third opposition, claiming TO be paid out of
the proceeds of the sale in preference TO plaintiffs,
by virtue of a judgment in favor of Paul Tulane
against defendant, of which he, Borrow, alleges
himself to be the owner. Barrow had on pre-
vlous occasion made opposition to seizure made
under the Judgment, by the plaintiffs, of the
same slaves, on the ground that they belonged to
him, and this court held his title to them to be sim
ulated, fraudulent and void, 3 Ann. The District
Court decided against the claim of Barrow, and
he appealed.
The appellant, according to his statement of the
case, became the owner Of the Tulane judgment
on the 3lst March, l848. The first opposition,
founded on his pretended title, then pending
in the District Court and was not adjudcated upon
until the May following.
There have been presented several objections to
the right of the appellant 10 avail himself of this
Judgment adversely to the plaintiffs. The most
material is that he is estopped by his previously
asserted claim TO the ownership of the slaves on
which he Row pretends to hold mortgage. 1t is
clear that if Ills claim TO the ownership were true
the judicial mortgage to the slaves would be ex
tinguished by confusion, for man cannot hold
on his own property, c. G. 1874, under
stand il be rule in the administration of justice
that man shall not be permitted 90 deny what he
has solamnjv ackuory1 Lodged in ju1ipiai procead !