R. S. 3364 The accused employer and solicitors were indicted in the parish of DeSoto for selling liquors without a license from the parish, and defended on the ground that they were domiciled in the city of Shreveport, parish of Caddo, where they had obtained State, parish and municipal licenses. It appeared that the employer had solicited orders in DeSoto through agents, his co-defendants, and the liquor was sent to purchasers C. O. D. The testimony on the subject had been taken in full by a stenographer. Held: The ultimate facts, as stated by the trial judge, would control; that, under these facts, the sales were made in DeSoto parish, as the pretext that the orders taken by the solicitors were subject to acceptance or rejection by the employer, was a colorable device resorted to to evade the law. State vs. McAdams et al., 106 La. 720. (The subject is fully considered in the opinion.)

Const., 1879, Art. 135, confers upon the city courts of New Orleans jurisdietion on sums of one hundred dollars, exclusive of interest. A claim for a license tax, the principal of which is one hundred dollars, is within the jurisdiction of the city courts. The interest of two per cent. per month imposed by See. 26, Aet 150 of 189, is not a penalty, but is to be considered as "interest.' City vs. Judge of Second City Court, 49 An. 249; ibid 764.

State ex rel.

[Powers of Police Juries.]

ROADS.

3364. The police juries of all the parishes of this State are authorized to pass all such ordinances as they may deem necessary, relative to roads, bridges, and ditches, and to impose such fine and penalties to enforce the same, as they may think proper; to be recovered and enforced by indictment or information in the name of the State, or by ordinary process before any court of competent jurisdiction in the name of the police jury of the parish (Act 204, 1858, 146).

Const., Art. 291.

Police juries have no legal authority to grant a right to construct, own and operate a line of railway over and through the public roads in the parishes. The authority conferred upon them relates to the administration of roads used for their customary purposes. Tilton vs. R. R., 35 An. 1047; Farmer vs. Miles, 106 La. 333.

The police juries throughout the State have plenary power to establish public roads in the parishes, to discontinue or abandon them, and to establish a toll road upon the site of a free road, or elsewhere. They may build, maintain and operate such toll roads directly, or they may contract with others-whether corporations or natural persons-to effect these purposes, and the courts will not interfere with their discretion, unless it appears that the discretion has been grossly abused. A police jury does not confer a monopoly (Const., Art. 48), nor does it grant the public property of the parish to a private corporation (Const., Art. 58) when it cntracts with a private corporation for the construction of a toll road and limits the authority of the corporation to collect tolls to an amount sufficient to pay the company for the use of its money and for its services. St. Joseph Plank Road Co. vs. Kline, etc., 106 La. 325. (The cases on the subject are reviewed in the opinion.) See Act 26, 1894, printed at page 1733.

R. S. 3365-3368

[Notice to Residents and Non-Residents.]

3365. The police juries shall direct in what manner notice shall be given to resident and non-resident proprietors of the works to be done to the roads and ditches (Act 312, 1855, 394).

[Contracts for Work, Lien for Amount.]

3366. In all cases of adjudication of work to be done to roads, ditches and bridges, or other public works, it shall be the duty of the officer adjudicating the same, to cause the proces verbal of adjudication to be recorded in the mortgage record, which shall operate as a lien on the land; or in case of non-payment, the undertaker shall be entitled to an order of seizure and sale upon the presentation of said act thus recorded, annexed to his petition, together with his oath, showing the amount due him; and in cases of non-residence, it shall be the duty of the judge to name an attorney for the non-resident, upon whom service shall be made, as provided for in executory proceedings of the Code of Practice; and said attorney shall be entitled to such compensation as the judge may think proper, to be taxed as part of the costs.

The order of seizure and sale shall be executed by the sheriff of the parish, without the benefit of appraisement, in the same manner and subject to the same formalities as in ordinary

cases of seizure.

[Recovery for Work Done.]

3367. Whenever any works to the roads, etc., of any parish of this State shall have been made at the expense of the parish, it shall be lawful for the police jury to sue the person for whose account the works or repairs were made, and to obtain the reimbursement of the said amount, by privilege on the land

subject to the works.

The general and special laws relating to roads shall remain in force until the enactment of laws regulating the roads by the police juries, and no longer.

One charged, by information filed against him, of having wilfully neglected

and refused to

incompetent to serve as a grand juror. State vs. Nicholas, 109 La. 85. See note

Pay a per capita road tax properly levied by the police jury, is

to Sec. 3381, p. 1730.

[What Are Public Roads, etc.]

3368. All roads in this State that have been opened; laid out or appointed by virtue of any act of the Legislature hereto

R. S. 3369

fore made, or by virtue of an order of any of the police juries in their respective parishes, are hereby declared to be public roads, as are also all roads made on the front of their respective tracts of land by individuals, when the said lands have their front on any of the rivers or bayous within this State. It shall be lawful for any individual, through whose land the police jury shall cause a public road to be laid out, to claim a just compensation therefor (Act 1818, Sec. 1, p. 54).

A road along the banks of a bayou that is not navigable, is not a public road, and its use by the tolerance of the owner of the land for thirty years, is not sufficient to convert it into one. McCearley vs. Lemonnier, 40 An. 253.

See Torris vs. Falgonst, 37 An. 497.

The police jury may close a public road, and its action can only be questioned by one acting in the public interest. Hyde vs. Teal, 46 An. 651.

Though a railroad be a "highway, '' it is not a public road in the sense that the general public has the legal right to pass at will along its right of way. A bridge built by a railroad company on its line of way over a navigable stream is not open to travel over it by the general public, though the bridge be constructed in such a manner as to fit it for that purpose. Oliff et al vs. City of Shreveport et al., 52 An. 1203.

[New Roads, How Opened, etc.]

3369. All roads to be hereafter opened and made, shall be laid out by a jury of freeholders, consisting of not less than six inhabitants of the parish where the said road is to be made, to be appointed for that purpose by the police jury; it shall be the duty of the said jury of freeholders to trace and lay out such road to the greatest advantage of the inhabitants, and as little as may be to the prejudice of inclosures, and assess such damages as any person may sustain.

They shall take the following oath:

"I, A. B., do solemnly swear that I will lay out the road now directed to be laid out by the police jury of the parish of.. to the greatest ease and advantage of the inhabitants, and with as little prejudice to inclosures as may be, without favor or affection, malice or hatred, and to the best of my skill and knowledge. So help me God."

All damages assessed by the said jury to any individual through whose land the road may run shall be deemed a parish charge, and be paid by the treasurer of said parish.

Nothing in this section shall be so construed as to give a right to any individual to claim damages for the laying out of a road along the front of his land, according to the former

R. S. 3370-3371

customs existing in this State; nor to affect in any manner the rights of individuals to any batture or alluvion already formed or which hereafter may be formed on the front of any tract of land which lies on any navigable river or water course within the limits of this State; nor to prevent any owner of the soil on which a public road shall pass, to resume the use and possession of such soil whenever the said road shall have been abandoned by the public, or shall have been transferred elsewhere with the consent of the owner and with that of the competent authority.

A road must be traced by a jury of freeholders; the police jury is without right to do so, but it may prescribe the "proportion and direction" of roads. Sec. 2743, Calder vs. Police Jury, 44 An. 175.

The fee remains in the owner of the soil on which the road is constructed, and a railroad for private use can not be built on it.

An. 426.

Bradley vs. Pharr, 45. Expropriation of property for public road. Maginnis vs. Police Jury, 106 La. 293. R. S. 3369 does not conflict with the articles of the Civil Code on Expropriation. The section of the Revised Statutes gives a mere servitude, while expropriation under the Code confers greater rights. Fuselier vs. Police Jury, 109

La. 551.

See Act 26, 1894, printed at p. 1733.

[Owner May Appeal from Finding.]

3370. Whenever any individual, through whose land a road laid out, as aforesaid, shall pass, may be dissatisfied with the decision of the freeholders laying out the same, either as to the course the same is to take, or to the damages to him assessed, he may have an appeal to the District Court for the parish in which said road lies; provided he prosecute the same at the next session of said court, after the laying out of the said road or the assessment of the damages; and no appeal shall be set aside for want of form in bringing the sale before the courts. In junctions to stay proceedings may be issued in said case when the case requires the same.

[Width of Roads and Causeways.]

3371. All roads so laid out shall be deemed public roads, and shall be at least twenty-five feet wide; and when to the Overseers of roads it may be deemed expedient to make or repair causeways on the said road, they shall be at least fourteen feet wide, and the earth necessary to raise or cover such causeway shall be taken from each side of the causeway equally, so as to form a drain on each side of the same.

[Duty of Overseers.]

R. S. 3372-3371

3372. The overseers of public roads are hereby directed to have completely cut and cleared all stumps for the width of sixteen feet in the centre of the highways under their care; the necessary bridges through swamps and over small runs, creeks or streams are hereafter directed to be made of the same width.

[Road Districts, Overseers, etc.]

3373. It shall be the duty of the police juries to divide their parishes into as many district (sic) as they may think proper for the appointment of overseers of roads.

They shall annually appoint overseers, whose duty it shall be to summon all male persons from the age of eighteen years to fifty years (except ministers of the Gospel, and such other persons as may be exempt), to meet at such times and places, as to them, the said overseers, shall seem convenient to work on the public roads; and whoever shall, upon such summons, refuse or neglect to perform their duty, shall, upon trial and conviction before the District Court, be sentenced to pay a fine of not less than five dollars, nor more than twenty-five dollars, and in default of payment of said fine and costs, shall be imprisoned in the parish jail not less than ten days nor more than thirty days. Provided, that in all cases, should the person summoned to work upon any of the public roads of this State so elect, at the time he is called on to work, he may pay to the overseer of such road or the district the sum of one dollar for each day's labor that he is called on to perform, the same to be expended by the overseer in hiring other hands to work upon such road or road district, and provided further that none of the provisions of this section shall apply to incorporated towns or villages, which keep up their own streets by taxation or otherwise. (As amended by Act 203, 1902, p. 394.)

The incorporation of a town under the general municipal incorporation law does not exempt its inhabitants from road duty, which police juries may impose under Act. 112, 1888 (p. 478). Saunders vs. Levi, 42 An. 406.

Under Act 112 of 1880, amending Sec. 3373 (again amended by Act 117, 1896), suit may be brought in a magistrate's court for the fine imposed, but proceeding is not criminal and he can not arrest the delinquent and condemn him to punishment. State vs. Sikes, 44 An. 949.

[Number of Days, etc.]

3374. No overseer shall have a right to call out any person to work on the said roads more than twelve days in each year (Act 1829, Sec. 51, p. 142; Act 1830, Sec. 10, p. 116).