Nelson et als. vs. Mayor and Selectmen.

granted, the District Judge rendered a judgment in favor of defendants, maintaining the legality of the ordinances and assessment and appropriation of the tax. The plaintiffs appealed.

Art. 209 of the Constitution, in the proviso to said article, authorizes parishes and municipalities to increase the rate of taxation for the purpose of erecting and constructing public buildings, bridges and works of public improvement. Under this article it would be a wide interpretation to include within its meaning the establishment of and the support of a public school. Public education is declared by the Constitution to be an affair of the State, and it assumes the whole responsibility of public education. It will be unnecessary to discuss the question whether the Legislature, by a general law, could authorize local assessments for educational purposes. This question is not raised. But it is certain, from the provisions of the Constitution, that the Legislature is without power to confer this privilege upon any particular political corporation. Art. 46.

The power claimed to levy this tax under the amendment of the charter of the Constitution is unfounded.

The General Assembly is prohibited from passing any local or special law creating corporations, or annulling, renewing or extending or explaining the charters thereof, except as to the city of New Orleans and the creation of levee districts. Art. 46 of the Constitution.

Act 110 of 1880 was, in consequence of this prohibition, enacted, authorizing existing corporations, by a vote of its members, to alter, change and amend their charters. There is no power conferred by the act upon any corporation to incorporate within its charter any grant of any privilege not existing in the original charter. Corporations are the creatures of legislative will, and can do no act not authorized by their charters, unless it is by implication necessary to carry out conferred powers.

In the original charter there was no grant of any right to the corporation of Homer to erect a school building and maintain a high school. It can not by its own act usurp powers not granted. There was no authority under the act for the corporation to so amend its charter as to authorize the levying of a tax for the maintaining of a high school or for any other educational purpose. Police Jury vs. Shayot, 47 An. 589; Tax Collector vs. Dendinger, 38 An. 261.

The general welfare clause of the corporation can not be so

Winter vs. Davis.

construed as to permit the exercise of an original power necessary to be granted in the first instance by legislative will.

Under this clause many useful and necessary exercises of power are allowed, but they are all referable to powers granted or those necessarily implied. The subject of education is an important matter, and it is so treated by the State, as it seems to be jealous of the exercise of the power by subordinate political corporations, as it has not granted local self-taxation for this purpose. This may be the key-stone to a successful educational system, but the collective people in convention did not so regard it; otherwise it would have found a place in the educational system of the State, and protection in the permanency of the organic law.

A high school is not essential to municipal government; a system of education is not a part of municipal regulation, and the power of a corporation to establish a public school can not be inferred from any power necessary for municipal existence.

The judgment appealed from is annulled, avoided and reversed, and it is now ordered that there be judgment for plaintiffs, decreeing the nullity of the ordinances mentioned in the petition and on which the taxing power and assessment is exercised for the levying of the five-mill tax complained of.

No. 12,024.

WILLIAM WINTER VS. ISIDORE M. DAVIS.

A writ of attachment was sued out by plaintiff under the fourth and fifth clauses o
Article 240, C. P.

The defendant moved to dissolve on the ground that the affidavit was untrue.
The District Judge dissolved the attachment.

Fraud is not always to be presumed from a breach of contract, when the broken
promise will admit of an interpretation favorable to honest intention.

The facts do not show that the failure to deliver cotton (the basis of the attach ment) was with intent to defraud creditors.

The law allows the husband to make a transfer en paiement to his wife. The settlement with his wife can be corrected by his creditors if it was erroneous and to their prejudice.

A statement of assets and liabilities by the defendant to one who was his creditor, in order to obtain advances, made some time prior to the date of plaintiff' claim, is not ground sufficient for an attachment.

A breach of contract and failure to forward all the cotton promised will not under all circumstances justify an attachment.

A

PPEAL from the Second Judicial District Court for the Parish of
Iberville. Watkins, J.

Winter vs. Davis.

Wise & Herndon for Plaintiffs, Appellants.

Ben. P. Edwards and J. A. Dorman for Defendants, Appellees, cite: 32 An. 348, 340, 344; 35 An. 285, 399; 41 An. 227; 45 An. 518; 37 An. 722; 43 An. 1062; 46 An. 1337; 47 An. 17; C. P. 240; 22 An. 531; 24 An. 82, 586; 26 An. 258; 28 An. 258, 309; 30 An. 396.

Argued and submitted January 23, 1896.
Opinion handed down February 10, 1896.

The opinion of the court was delivered by

BREAUX, J. The plaintiff in October, 1893, caused a stock of goods and other personal property of the defendant to be attached. About the same time a number of other creditors also caused attachments to issue. The attachments were made under the fourth and fifth clauses of Art. 240 of the Code of Practice.

The defendant filed motions to dissolve on the ground that the affidavit was untrue.

The District Judge dissolved the attachments and plaintiff appeals. The defendant had a general country store in the town of Arcadia. His stock of goods was large, and he was indebted in a large amount. It is a disputed question whether he was solvent at the date of the attachments. The evidence upon that point is not clear and conclusive. He sold goods in the ordinary course of his trade; paid a few of his creditors, and carried on such transactions as are not unusual with men engaged in active business. It is evident that there was no system in his business, and that it was conducted without much regard to those principles essential to success. Such defects and want of business tact and ability are not ground for attachment. Unless it be shown that there was an intent to defraud, the attachment must fail. The intent to defraud was not shown; moreover, the sales and transactions do not seem to have been made with a well formed design to defraud creditors, however much they may have been sufficient to excite the anxiety of a careful creditor, seeking to avoid a loss.

A debtor may be ignorant of the facts and circumstances pertaining to his business and yet not be exposed to t! at writ. He may not

Winter vs. Davis.

know the number of bales of cotton he had received at the date of the attachment and not remember which of his creditors he had paid, nor the amount of his assets and the sum of his liabilities (possibly unknown quantities to him) without fraudulent intent toward his creditors. These and other facts proven in the case may be incidents of fraud but are not in themselves a fraud, perpetrated or intended. An attachment based upon Nos. 4 and 5 of Art. 240, C. P., must be supported by proof of an act or acts showing the fraudulent intent of the defendant to place his property beyond the reach of his creditors or to give an unfair preference to some of them.

It is not evident that, prior to the attachment, there was fraudulent concealment of property to prevent its seizure under the writ. The plaintiff, as one of his principal grounds, urges, in support of the writ, that the defendant transferred property to his wife. That question was considered and decided in Wilson vs. Chalaron, 26 An. 641. The court said in that case, that the dation en paiement to the wife will not be sufficient to sustain the attachment upon grounds similar to those alleged here.

The payment to the wife was made under a provision of the Civil Code. The amount transferred to the wife was small as compared with the gross assets of the plaintiff. If the settlement was erroneous and to the prejudice of creditors, they are not without remedy. The notes and accounts were, it seems, transferred to the wife after the attachment had been served.

It is also urged that the defendant, Davis, bought a stock of goods for about thirty thousand dollars; that at the time, and to enable him to make this purchase, he made a statement to one of his creditors of his financial condition in which he showed assets: twentytwo thousand nine hundred and eighty dollars; total liabilities: five thousand seven hundred dollars; while his ledger showed an indebtedness of a much larger amount.

However reprehensible and false the sworn statement may have been, the fact remains that it was made prior to defendant's agreement with plaintiff to consign cotton to him to be credited on the loan. It was made to creditors, who, presumably, were paid before the attachment issued, for the firm's name does not appear on the list of creditors of the defendant. It might have been different if the de endant, under similar circumstances, had made false statements in regard to his assets and liabilities to the plaintiff here,

Winter vs. Davis.

at the time of the agreement between them and the latter's loan to the former.

"The defendant, for the purpose of obtaining credit, stated that his indebtedness was a certain sum, when in fact he knew it to be much larger. Upon the faith of the statement the plaintiffs gave him credit. Held that the transaction was a fraud upon the plaintiffs, and was sufficient ground for suing out a writ of attachment." Rosenthal vs. Wahl, 58 Wisconsin, 621. Here there was no statement made to the plaintiff, and the statement was made prior to plaintiff's claim. Moreover, prior to plaintiff's loan the total indebtedness of the defendant was much less than plaintiff alleges it was.

It is further urged by the plaintiff that the defendant was under obligation to buy cotton and ship it to him; that throughout September and to the 7th day of October, 1893, he seemed to have shipped to him, Winter, in accordance with his contract; that on the 7th of October he, despite the contract, shipped about thirty bales of cotton to others than plaintiff, and received the money therefor.

The advances, as we understand, were not made for the sole purpose of buying cotton. They were made to aid the defendant in his business. He, as an inducement, promised to ship cotton to the plaintiff, which the latter was to sell and pay himself from the proceeds. There was a breach of contract, a failure to comply with an obligation; not of such a character, however, as to justify an attachment. The evidence shows that the amount of sales of cotton to others than plaintiff was small as compared with defendant's assets and the amount of his business, and that it was applied to the payment of debts to creditors pressing him for payment. There was but little cotton for sale at the time, and that the defendant, in consequence, was disappointed, as the opportunity for buying was much less favorable than it had been in previous years. It is also in evidence that the sales in defendant's business were conducted on a reasonable basis as to prices.

It is not evident that the intention of the defendant was to place his property beyond the reach of his creditors, or to dispose of it so as to give an unfair preference. These are essentials to sustain an attachment. Hernsheim vs. Levy, 32 An. 340. The condition of defendant's business, we have already stated, was such as to give the average creditor concern and some anxiety, particularly as the amount was large and defendant's ability to pay uncertain. He had