New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1875-11-02


practical effect if, as claimed by the re-
lator, these bonds should be held a. falling
within the provisions of the funding act.
Regarding the defense that the agree
ment of the State to guarantee the bonds
OF the company rested on the condition
Of acceptance of the act within ninety
days after its passage, the survey Of
the road within eight months from said &C.
ceptance, and the completion of forty miles
OF road within one year from said suryey,
that is one year and eleven months from
the seventeenth of February, 1869, or by
the seventeenth of January, 1871, there can
be no question that the object and intent
of the Legislature were that the condition
OF the States guarantee should be the COM
pletlon OF certain parts Os the whole of the
road within the time specified, and that in
default thereof this obligation of the State
to guarantee should lapse. This is evident
from the statute.
The eighth section declares "that when
the said second mortgage shall have been
SO delivered, approved and recorded, and
one continuous portion or section of forty
miles in length of said main line of railroad
within the State of Louisiana shall have
been constructed by the company. and the
rails laid thereon" the Governor shall then,
on the .presentment of the $500 900 of bonds,
subscribe the certificate of guarantee.
And that there should exist no
doubt as to such construction being a
condition precedent to the promised
guarantee by the State, it is carefully reit-
Grated in the twelfth section that the coln-
pany shall cause the survey and location of
the whole of said main line of its railroad
within the State within eight months, land
shall cause section of at least forty con-
tinuous miles thereof, and the rails laid
thereon within twelve months after such
survey and location" and in case of failure
OF said company to survey, locate and con-
struct said line of railroad in the manner
and within the time limited, "the obliga-
ton of the State of Louisiana, by virtue of
this act to guarantee the second mortgage
bonds of said company las in this act pro-
videdl for or upon that portion of said main
line OF railroad not constructed within the
time limited, shall cease and determine,
and none of the second mortgage bonds for
or upon that portion of said main line of
railroad not constructed within the time
limited, shall be guaranteed by the State of
Louisiana. Passing by the question of ac-
ceptance and survey within the time linn
tied, and regarding which there ia no proof
in the record, pro or con, the evidence as
to the time Of the completion of the first
section of forty miles offered by the defend
ants and uncOnuradicted in any manner by
the relator, must be taken as conclusive as
to this fact
This evidence shows that on the first of
of the time fixed for the completion of the
forty miles, 26 44-l00 miles of track had
been laid and the certificate of the chief
engineer of the road to the Governor, and
the testimony of the assistant engineer and
one OF the contractors establish that the
first section of forty miles was completed
only OF the fifteenth of April, 1871 As said,
no effort has been made to contradict this,
and established as it is by the personal and
official knowledge of the witnesses, it must
as a fact, be considered by the court as
conclusively established.
1t is attempted to avoid the effect of this
evidence by the provisions of the tenth ssc-
ton declaring that the signature of the
Governor to the certificate of guarantee
holder of every bond SO certified that the
conditions of this act have been complied
with on the part of the company"
As contradictory proof of the fact of non
completion of forty miles of road within the
time limited. this is insufficient. The non
completion of the work remains an estab-
iished fact, Notwithstanding any presump-
ton to the contrary arising from the sigma
| ture of the Governor to the bonds.
To what extent the Legislature intended,
| or had the power to empower the executive
to either waive, modify or surrender any
| condition precedent to rendering of State
aid to a railroad corporation, may be ques-
| tienable, and useless, perhaps, to seek a
motive for the Governor SO doing. When,
however, the assistance Of the State, to the
| extent of millions, is thus promised by an
act under the title 'to expedite the construc.
| ton of the railroad" and under the clear
and expressed conditions that the benetici.
| airy shall so expedite the construction of the
| road within fixed times, and on failure so to
| do the said promised assistance 'shall cease
and determine" aud shall not he granted
fhn rirrbt
power of the executive to bind the State to
such obligation, unless those conditions have
been complied with.
If these bonds of the relator were certi-
| fed by the Governor before forty miles OF
road were completed the certificate was I'M
authorized; if certified after the completion
Of said forty miles, on the fifth of April,
1871, that certificate was unauthorized, be-
cause on February Is, 1871, the whole act
30 tar as concerned the guarantee of the
State, had ceased by its express provision to
have force or effect.
Regarding the claim of relatOr that it ia
an innocent third holder. of the bonds for
valuable consideration, and, therefore, not
affected by any failure of the condition in
the original issue, it suffices to say that the
same plea has been set up In this court in
other like cases, and adversely decided.
The argument of the whole counsel in
this case has failed to convince the court of
any error in the previous ruling.
Mandamus refused.
Fourth District Court.
Abraham Cohen vs.. Charles Morgan
Action for damages where plaintiff was put
off the train, having no ticket. The verdict
was for defendant. Rule for new trial dis
charged.
Superior Criminal Court.
SENTENCED.
BENJAMIN Berkery, convicted of present
ing forged order, alleged to have been
written by Mr.. Charles Ballejo, grocer, cor
ner of St. Charles and Jackson streets, to
Mrs. Frederick Zangler, upon which &C.
cused IT ceived some tools, valued a. $40;
three years hard labor at the State Peniten-
tiary.
The petty jury was impaneled, and on
account of All Saints Day, continued to
Tuesday, without any attachments being
issued for absentees.
SPECIAL, NOTICES,