author: Howe, J. Hoave, J. Howell, J., Wyly, J.,

text:
    No. 3278.
    State ex rel. Hernandez v. B. F. Flanders, Mayor, et al.
    A law will not "bo declared unconstitutional unless it be clearly so.
    Tbe decisions by the Legislature of a question of x>ublic policy will not be revised by the-courts.
    There is a wide difference between the funds and franchises of a political corporation and those of a private person.
    The charter of a municipal corporation is not a contract (but a mandate) and the Legislature has the right to regulate and control the corporation and its funds and franchises, because the whole interest and franchises are given for tho public use and advantage. 5 An. 661.
    By section forty of the act of 1870, chartering the city of New Orleans, tho city was directed to fund its floating debt, and by tho act Ko. 103 of 1871 it was directed to include in the statement thereof all registered certificates and bills issued or approved (under the former charter) by the chairmen of the “ Committees of Finance ” and registered by the Controller or his deputy, which at the time of presentation for payment or redemption a» part of the floating debt were held and owned by dona fide purchasers for value j and such holders were authorized to enforce their rights in this regard by mandamus, and pending proceedings by mandamus were confirmed.
    It appearing that the relator was the dona fide holder for value of a certificate of this sort, signed by the chairmen, who had the legal authority to sign it, and duly registered, and that as to this particular certificate there was no sufficient proof of fraud as between the committees and tho parties to whom it was originally issued. Held — That the legislation quoted above cured any informalities prior to such signing and issuance; that the question whether the dona fide purchaser of the certificate should suffer, or the city should pay a claim thus certified by her proper officers, was one of public policy within the legislative discretion, and that tho relator was thoroforo entitled to a mandamus.
    Appeal from the Eighth District Court, parish of Orleans. Dibble, J.

      Sermies & Mott, for relator. George 8. Lcieey, for respondents.
   Howe, J.

The relator asked for a mandamus to compel the Mayor,, the Administrator of Finance and the Administrator of Public Accounts of New Orleans to place on tho statement of the floating-debt of the city a certificate of indebtedness, in accordance with section forty of the city charter of 1870. Laws of 1870, extra session, p. 46.

Tile certificate in question was purchased by relator in open market at the market rate, and presumably in good faith. It is as follows:

“Finance Committees,
City Hall, New Orleans, January 10, 1870.
The Controller is hereby authorized to warrant on the Treasurer, in favor of John Coleman & Co., for the sum of four thousand one bundred and thirty-one 16-100 dollars, and charge the same to account of contingent, in accordance with resolution No. 1467.
No. 264. (Signed) VICTOR PRADOS,'
W. I-I. PEMBERTON,
Chairmen Finance Committees.
Registered March 1, 1870.
(Signed) PAS. LABARRE,
Deputy Controller.
(Indorsed) JOHN COLEMAN & CO.”

The resolution No. 1467 thus referred to was dated May 19, 1867, and provided an extra compensation of twenty-five per cent, to Coleman & Co. for paving Rampart street, under their unfinished contract of May 9,1860, giving as a reason that the price of materials had been enhanced in this rate by the war.

The respondents allege several causes why the mandamus should not issue, which we will notice in their order:

First — That the proceeding against them by mandamus was prohibited 'by the act of March 17, 1870. This prohibition appears, however, to have boon removed by the act of May 2, 1871, hereinafter quoted, and does not seem to be further relied on by counsel for the defense.

Second — That the resolution 1467 referred to in the certificate was void as giving a gratuity and in contravention of the city charter in force at the time.

This i>oint refers, we understand, to the question of authority in the Common Council to pass the ordinance. To this the relator replies that if the Common Council was without power to pass the ordinance this defect has been remedied by the provisions of section forty of the city charter of~1870 and by the act of May 2, 1871, laws ot 1871, No. 103, which refers specifically to the class of certificates to which the one in suit belongs. The latter law is entitled “An act defining the obligations of the city of New Orleans to be redeemed as part of the floating debt under the provisions of section forty, act No. 7, approved sixteenth March, 1870, and to enforce the same,” and reads as follows:

“That section forty of act No. 7, approved sixteenth of March, 1870, embraces and was intended to embrace as obligations of the city of New Orleans all registered certificates or bills issued or approved by the chairmen of the committees of finance and registered by the Controller of the city of New Orleans, or his deputy, which at the time of presentation for payment or redemption as part of the floating debt were held and owned by bona fide purchasers for value, and it is hereby made the duty of the Administrator of Public Accounts, the Mayor and Administrator of Finance to place all such registered certificates or bills on the statement of the floating debt, and in case of refusal, the holders of said registered certificates or bills are hereby-authorized to proceed by writ of mandamus to enforce the duty herein imposed on the officers aforesaid.
Be it further enacted, etc., That this act shall take effect from and after its passage, and any proceeding by mandamus or otherwise heretofore taken by holders of said obligations are hereby confirmed.”

We think the case is with the relator on this point. It seems to have been believed by the Legislature that the former municipal authorities had contracted a floating debt; that certificates of this indebtedness had been thrown on the market and purchased by bona fide holders; that good faith and public policy required that such holders should be paid, and that it was better that some claims made by doubtful authority should bo settled than that the credit of the city should suffer. We apprehend that the effect of this legislation was to supply the want of power in the city and in the officers who signed the certificates, if any such want existed.

Third — That the certificate in suit can not be recognized 'as of any legal force because, first, it is not embraced in the resolution No. 1467; because, second, the amount of the twenty-five per cent, allowance was not certified by the City Surveyor and approved by the chairmen of the Committees of Streets and Landings; and because, third, the work had never been measured by the City Surveyor.

The certificate, on its face, is issued under the resolution 1467; it is in regular form; and we do not think the reasons thus urged under the third subdivision of the answer furnish any defense to this proceeding in the face of the legislation above quoted. As already suggested that legislation must have proceeded on the theory and for the purpose of sustaining the credit of the city by protecting the bona fide purchasers of the certificates emitted by its officers, in customary form, even though issued without the prescribed preliminary formalities.

Fourth — The respondents further answered that a groat fraud upon the city was sought to be consummated at the time the certificates, including the one in question, were issued to Coleman & Co.; that there was, in fact, an over issue of certificates under the resolution to the amount of about $20,000 by the then chairmen of the Finance Committees.

The evidence certainly shows that the business of these Finance Committees was conducted in a grossly irregular way, but it hardly amounts to a showing that the certificate in controversy was itself fraudulent in its inception. But at any rate wo are of opinion that the legislation above cited disposes of the case in favor of the relator. Certificates of indebtedness issued by a former city government were afloat; some were in the hands of bona fide holders, but were subject to the imputation of irregularity or even graver objections. The question whether the bona fide purchaser should suffer or whether.the city should bear the burden saddled upon it by a former administration, was a question purely of public policy. As such it belonged to-the political department of the government, and the decision of that department should not be reversed by the judiciary. We can not perceive that the acts quoted are in conflict with the Constitution, and it is, therefore, in our opinion, the duty of the courts to enforce them by the process prescribed.

The judgment of the lower court in favor of relator should, therefore, be affirmed.

Judgment affirmed.

Wyly, J., being absent, took no part in this decision.

On Rehearing.

Hoave, J.

A rehearing having been granted in this case and an oral argument made, we have had it under advisement for some time and given it a careful examination, but we are unable to change the views heretofore expressed.

The certificate of indebtedness upon which the proceeding is brought is genuine; it is duly signed by Prados and Pemberton, chairmen of finance committees, who were authorized by law to sign such documents, and registered by P. Labarre, DeiAuty Controller, and there is. nothing to show that it was a fraud, whatever irregularities there may have been in the other dealings of Coleman & Co. with the committees. The relator is admitted to have bought it in good faith, and he therefore is entitled to Ms mandamus under the act of 1871, No. 103. We can not find that this act is unconstitutional, and we can not refuse to-obey it simply because we may not think it a wise law. Our views of public policy, like those of other citizens, may be expressed at the ballot box, but we have no right, as judges, to enforce them by a decree of court.

The fact that legislative power may be abused, is no argument against its existence; and it has been long settled in this State, as well as in American jurisprudence generally, that a law will not bo declared unconstitutional unless it be clearly so. Indeed, in the earlier days of the Republic, the right of courts to declare any law unconstitutional was gravely doubted.

It is in vain to argue such a case as this by analogies drawn from the rights of private individuals. Analogies are proverbially deceptive, and there is a wide difference between the funds and franchises of a private person and those of a political corporation. A public, and especially a municipal corporation, is created for a political purpose. 2 Kent, 275. It is invested with subordinate legislative powers, to be exercised for local purposes connected with the public good, and is subject to the control of the Legislature of the State. 2 Kent, 275. When it holds specific property for municipal purposes, that property is said by some to be invested with the security of private rights, but in most other respects the State, through the Legislature, has full control. “If the corporation be public in the strict sense,” says Mr. Kent (vol. 2, 301)', “the government has the sole right as trustee of the public interest, to inspect, regulate, control and direct the corporation and its funds and franchises, because the whole interest and franchises are given for the public uso and advantage.”

“In respect to public or municipal corporations, which exist only for public purposes, as counties, cities and towns, the Legislature, under proper limitations, have a right to change, modify, enlarge, restrain or destroy them, securing, however, the property for the use of those for whom, it was purchased.” 2 Kent, 305.
“A public corporation instituted for purposes connected with the administration of the government may be controlled by the Legislature, because such a corporation is not a contract within the purview of the Constitution of the United States. In those public corporations there is in reality but one party, and the trustees or governors of the corporation are merely trustees for the public.”

These principles, stated nearly fifty years ago by Mr. Kent as the better opinion of the American courts, were adopted to the fullest extent by the Supreme Court of Louisiana at least a quarter of a century ago (3 An. 306, 1 An. 162, 5 An. 065, 11 An. 54, 1 An. 438), and nothing could be plainer and broader than the views expressed in this regard by the court through Mr. Justice Preston in the case of Police Jury v. Shreveport, 5 An. 661, in the year 1850. Every argument as to unconstitutionality made in this case was made in that and in the cases to which the organ of the court referred, but without avail. We are at a loss to perceive any good reason why we should ignore this well settled jurisprudence, and usurp a sort of general superintending control over the Legislature in these matters.

Our predecessors, as early as the year 1813, disclaimed such a power even over inferior courts, (3 M. 42), and surely it ought not to be hinted at as existing with regard to a co-ordinate branch of the government.

It is therefore ordered that the judgment heretofore rendered by us remain undisturbed.

Howell, J.,

dissenting. My first reason for not concurring in- the opinion of the court in this case, after further examination, is that the instrument on which the proceeding is based is not strictly a “registered certificate,” as is usually understood by such words. It is simply an authorization to the Controller to draw a warrant on the Treasurer for a specific sum under a particular ordinance. The Administrator of Public Accounts, who occupies the position of the Controller under the former charter, testifies that it is not what is properly termed a “registered certificate;” and the facts of this case show the importance and necessity of adhering strictly to legal forms. Secondly, if it be viewed as a registered certificate, in the contemplation of section forty of the present city charter, it is not a legal obligation of the city, having-been issued without consideration, without legal authority, and in violation of the good faith of the alleged payees, as plighted in a notarial act signed by them and the Mayor of the city, in special reference to this very matter.

The record shows clearly, by the contractors’ own list of their alleged losses, that it was issued as a gratuity or bonus on a contract for paving Esplanade street, and as stated on its face by virtue of ordinance 1467, which by its terms and the express construction thereof by the contractors in the notarial act above referred to, limited the gratuity or bonus to the paving of a part of Rampart street.

The manner and circumstances of its issuance, and that of others like it, are unusual and not warranted by any provisions of the law and ordinances relating to the subject. A recital of them here need not be made. Suffice it to say, the Finance Committees evaded any action themselves, although frequently pressed, and the chairmen seem to have leR it to their secretary to prepare the documents and ascertain from some other employe in the City Hall the particular ordinance under which they could be issued, and then affixed their official signatures, for reasons which are not legitimate.

But my most serious objection relates to the act No. 103 of 1871, which I can not think has made this a valid obligation of the city, and imposed on us the duty of ordering the defendants to acknowledge it as such. This act is entitled “An act defining the obligations of the city of New Orleans to be redeemed as a part of the floating debt, under the provisions of section 40 of act No. 7, approved March 16, 1870, and to enforce the same,” and it declares that said section embraces, and was intended to embrace, as obligations of the city, all registered certificates or bills issued or approved by the Chairmen of the Committees of Finance, and registered by the Controller of the city or his deputy, which at the time of its presentation for payment or redemption as part of the floating debt were held and owned by bona fide purchasers for value, and it authorizes the writ of mandamus to compel the officers, who are the defendants, to place the same on the statement of the floating debt, and specially confirms any proceeding by mandamus theretofore taken by holders of said obligations.

The proceeding- in this case was then pending, and the last clause discloses the motive of the act, while the record shows that the relator is the holder of other “obligations” of the same kind. In this proceeding, thus confirmed by an act of the Legislature while it was pending in the lower court, the question of the validity, the consideration, the good faith, the very existence of the alleged “obligation” was then at issue, and it becomes a matter of very grave inquiry whether or not the Legislature can thus forestall judicial action and decide upon the rights of litigants, if it be contended that the document before us is embraced within the above act.

I assume it as indisputable that when the relator, Hernandez, acquired the instrument in controversy, for I can not call it a “registered certificate or bill,” he acquired only the rights of the alleged payees, Coleman & Co., and theirs being contested as not well founded, his were no better; and I affirm that the questions, whether or not they are well founded, whether or not there is an existing obligation, and how it is evidenced, are judicial questions which the Legislature is incompetent to determine. Indeed, the question was presented to and pending before a court of justice by the voluntary action of the relator himself, and I am unfamiliar with that principle of government or justice which authorizes the legislative department to take jurisdiction of and decide disputes properly pending in the judicial, a co-ordinate department of the government, and order the latter to execute those decisions. Although the express inhibition of interference does not exist as a separate clause in the present Constitution, yet its.force and power just as clearly exist in the decision or distribution of the powers of government made as if expressed. See Titles II, III, IY. That the Legislature in its sphere is supreme, save as restricted by the Constitutions of the State and United States, I need not deny; but I maintain that its sphere is only that of legislation, and for the purposes enunciated in the preamble to the Constitution, and that the whole Constitution, taken together, contains, besides specific prohibitions, distinct limitations upon the action of the Legislature, which are prohibitory in their nature and effect. The vesting of the judicial power of the government in certain courts is a prohibition to the Legislature of the exercise of any such power. The Legislature ? may make, modify and repeal laws, but in doing so it can not take from any person the rights he may have acquired under a particular law; nor can it assume the duties and powers of the judicial department, and decree or adjudge how the law shall be administered in relation to a particular right. The duty of interpreting the laws made by the Legislature belongs to the judicial department, and it is that alone which has authority to examine and decide when a civil obligation has been incurred or violated, and give the judgment necessary in the premises. All this is fundamental. See 11 R. 414. Now, the alleged fights and obligations involved in this controversy, if any exist, spring from the contract between the city and Coleman & Co. for the paving of certain streets, and it is for the courts to determine whether there is an obligation on the part of the city to pay the sum sought to be secured in this proceeding.

It is true the corporation of New Orleans, a municipal corporation, is the creature of the Legislature, and subject, in the words of Mr. Kent, “under proper limitations,” to be changed, modified, enlarged, restrained or destroyed by the Legislature; yet, as a creature, it is •endowed with a volition, a will, which it alone can exercise. It can make contracts, incur obligations, possess property, provide or raise means or revenue; under the formalities prescribed by the Legislature. But having once exercised these powers, its rights and liabilities, in •case of dispute or controversy, are to be determined by the judiciary. In case of dissolution even the Legislature is bound to secure the property for the uses of those for whom it was acquired.” 2 Kent 305; 9 Cranch 52; Greenleaf’s Ev. § 331; 4 Scammon 269. The Legislature may ratify or authorize the corporation to ratify acts done and contracts entered into by its officials without proper authority or the observance of prescribed forms; but it can not compel the corporation to acknowledge and pay what it does not owe, nor can it enrich an individual at the expense of the corporate funds. Such acts are mere spoliation. It may, as it has done, provide for the manner of liquidating the obligations of the city, and direct how means may be raised for finally paying.them, but it can not determine what are obligations, nor legalize a fraud.

In my opinion, it is our duty to designate as unconstitutional (8 An. 149) whatever in act 103 of 1871 may be considered as establishing •conclusively tlie validity of all certificates or other evidences of debt, whether fraudulent or not, issued by the Chairmen of the Finance 'Committees and registered by the Controller or his deputy, and compelling the defendants, without the right of contesting their correctness, to place them on the statement of tlie floating debt, and as making in the hands of the relator, Hernandez, a legal obligation, what had no valid existence in the hands of Coleman & Co. Hernandez, by well established rules of law and equity, took the instrument in question at Ms own risk, and no statute can, by retroactive effect, increase his rights against the city. Art. 110 Constitution.

It is not so much the want of the observance of prescribed formalities in the issuance of this document, as it is its reality, its validity, its cause that is involved. An obligation without a cause is void, and •the Legislature can not make it valid by subsequent enactment. Nor ■do I think the legal principles drawn from the authorities cited in support of the relator’s demand, sustain the doctrine on which alone it can be allowed. The control which those authorities recognize in the Legislature over a municipal corporation, does not extend to the arbitrary appropriation of the funds of the corporation to private advantage, nor to the exercise of judicial powers, nor yet to compelling the acknowledgment and payment by a municipal corporation of what is not due, with the view as a public plea to preserve its credit, a measure which must, in my opinion, produce the opposite effect.

But, to conclude, I think acfc'103 of 1871 may be construed, without doing violence to its words, to apply only to certificates and bills, issued without proper form and authority, but for a real, valid consideration, and to authorize the writ of mandamus against the city officials in regard to them. The construction given to it in behalf of the relator, makes the courts the mere instruments of the Legislature to do what I am constrained to designate a public, dangerous wrong.

Wyly, J.,

dissenting. In the outset I deem it proper to inquire into

the character of the claim which the relator seeks by process of the court to compel the defendants to place on the statement of the floating debt of the city of New Orleans. Is it a valid obligation, or is ft a fraudulent claim, for which the city is not liable 9 From the evidence, I have no doubt that it was a palpable fraud from the beginning; that it was never contracted by the city of New Orleans or any one authorized by it, and that the city received no consideration whatever therefor, and is not bound, either in law or equity, to pay it. What are the facts 9

On the nineteenth day of May, 1869, Coleman & Co. obtained from the Common Council of New Orleans the approval of resolution No. 1467, N. S., giving to them twenty-five per cent, additional upon the city’s share of the contract price for paving Eampart street from Common to Esplanade; or, in dollars and cents, the sum of $37,125 78. Such relief was bestowed upon the express understanding that Coleman & Co. should present no further claim for a gratuity, and particularly no claim for a bonus on the Esplanade street contract. With a view to obtain the twenty-five per centum on the Eampart street contract, Coleman & Co. executed a notarial act, containing a clear and distinct disclaimer on their part of any right or pretension to twenty-five per cent, additional, except upon the city’s share of the contract price for paving Eampart street.

Notwithstanding these facts, the Chairmen of the Joint Committees of the Board of Aldermen and Assistant Aldermen issued fifteen certificates of indebtedness, amounting to $57,815 33 — an excess of $20,729 85 over the sum allowed by the resolution of the Common Council. Among the certificates thus issued in excess was the one which forms the basis of the present proceeding', and that certificate is clearly shown by the evidence 'not to have been issued upon the Rampart street contract, in' conformity with the resolution of the Common Council and the act executed by Coleman & Co., but upon the Esplanade street contract, in direct opposition to such resolution and specific agreement.

Hero Coleman & Co., having several paving contracts with the city, obtained the gratuity mentioned in resolution No. 1467 upon the express condition “that the increase of twenty-five per cent, to be paid' by the city shall apply only in the case of the Rampart street contract.’7 And to remove all doubt as to the understanding upon which the ordinance was passed, the Mayor required Coleman & Co., in a notarial act, to renounce and relinquish all claims they might have for an “ increase of twenty-five per cent, upon each and every one of the several contracts which the said firm now have with the city of New Orleans for the paving of various streets with square Mocks, saving and excepting, however, the one for Rampart street from Canal to Esplanade street, to which contract only shall such twenty-five per cent, apply;” and moreover they bind themselves and heirs “at all times to acknowledge the force and validity of the relinquishment, and to admit and sustain the intent and meaning of said resolution.” * * *

In the face of the condition stipulated in resolution No. 1467, and iu the face of their solemn pledges in the notarial act, Coleman & Co. obtained from the Chairmen of the Finance Committees the certificate or order for $4131 16 upon which this suit is based, which certificate or order was not issued upon the Rampart street contract, but upon the Esplanade street contract, aud which order bore upon its face the false statement that it was issued iu accordance with resolution No-1467. I-Iere the Chairmen of the Committees of Finance aud Coleman & Co., the payees of the order, deliberately conspired to perpetrate a fraud upon the city to the amount of $4131 16, and attempted to cover it by placing the false statement upon the face of the certificate that it was issued under resolution No. 1467, when, in truth, it was issued fraudulently and falsely, and contrary to the provision of said resolution. In the face of all this, the counsel for the relator asserts that this certificate was not fraudulent in its inception. I have never seen a'clearer and more infamous fraud exposed in a court of justice. There is no proof, however, that the relator, the transferree, participated in or was privy to the fraud out of which arose the claim which ho now demands shall bo placed on the statement of the floating debt of the city of New Orleans. This may be so, but it gives him no legal or natual obligation against the city. His remedy is against his fraudulent transferrers, Coleman & Co. Prados aud Pemberton had no authority to issue this certificate as Chairmen of the Finance Committees } the resolution mentioned in the face thereof did not authorize-it, and it is well settled that paper issued by unauthorized agents is not binding on their principal, it matters not in whose hands it may fall. No transfer can vitalize such an absolute nullity, or oven impose-on the city of New Orleans a natural obligation to pay the innocent transferred, if such he may be called, who purchased the certificate with the statement on its face that it issued in accordance with resolution No. 1467.

In the case of the Louisiana State Bank v. The Orleans Navigation Company et al., 3 An. 301, where the question was whether the city of New Orleans was bound by its indorsement of the bonds of the Orleans Navigation Company, there being no question as to whether the city had authorized the said indorsement, this court, through Chief Justice Eust-is, its organ, said: “ It would seem to be evident and reasonable that where the indorsement is by an agent and a person not acting in Ms own right, and there is a direct reference in the body of the instrument to the procuration or authority under which the indorsement is made, a person who holds the instrument by virtue of the indorsement is charged with notice of the power under which it is made. Wo must therefore consider the plaintiffs cognizant of the resolutions of the City Council of the twenty-ninth of July and the fifth of August, and that the right to recover depends on the validity of those resolutions and the acts done in virtue of them.”

Here the validity of resolution No. 1467 is not questioned, but the relator must be held, under the settled jurisprudence of this State, to be cognizant of the fact that this certificate for $4131 16 issued in violation of the express provision of that resolution, because he is charged with notice of the limited power conferred by it on the Chairmen of the Committees of Finance, and because he is charged with notice of the acts done by virtue of said resolution. Here the agents of New Orleans held power to allow Coleman & Co. the extra compensation of twenty-five per cent, on the Rampart street contract, hut could not allow it on any other contract. Having notice of the resolution No. 1467, the relator had knowledge also of the limitation imposed therein. Ho therefore occupies no better legal position before the court than the perpetrator of the fraud would occupy, because, under the jurisprudence of this State, he is charged with notice thereof.

On the tenth of October, 1870, the relator instituted this suit to compel by mandamus the Mayor, the Administrator of Public Accounts and the Administrator of Finance to do what they refused to do, to wit, to place this fraudulent claim, held by the relator, on the statement of the floating debt of the city of New Orleans, which he insists was tlieir duty by virtue of section 40 of the act rechartering the city, being act No. 7 of the extra session of 1870.

We have lately held, in the caso of Monasterio, that the section of the statute referred to docs not require these officers of the city to place these false and fraudulent claims, such as the one held by the relator, in the “full and correct statement of all the mature obligations of the city,” which it declares “ shall be prepared by the Administrator of Public Accounts and by him attested under oath, and which shall be further approved by the Mayor and the Administrator of Finance; ” * ® * that in the meaning of the law only valid claims are to be embraced in that statement, otherwise the law would not require it to be “attested under oath” by the Administrator of Public Accounts, and also to “be further approved by the Mayor and the Administrator'of Finance;” that if all claims, whether false or valid, were intended to be put on that statement, it would he useless to prepare it with so much caution, and it would be unreasonable to require these officers to swear to he correct and approve of claims which they know to be falso and dishonest.

On the authority, therefore, of the State ex rel. Monasterio against these same defendants, a case directly in point where the question was carefully examined by this court, the defendants heroin, in my opinion, were right in declining to put this false claim on the statement of the mature obligations of tbe city.

But tbe relator contends that his claim, whether valid or not, is covered by act No. 103, approved second of May, 1871, amending section forty of the charter of 1870. This amendment declares that said section forty “ embraces and was -intended to embrace, as obligations of tbe city of New Orleans, all registered certificates or bills issued or approved by the chairmen of the Committees of Finance and registered by tbe Controller of the city of New Orleans or his deputy, which at the time of presentation for payment or redemption as part of the floating debt were held and owned by bona fide purchasers for value.” * * * * * *

If this act be regarded as a legislative interpretation of section forty of the charter of 1870, it can not be accepted, because it appertains to tbe judicial and not to the legislative department to interpret laws. 23 An. 225; 3 Howard 546. Construing both statutes together, as they ought to be, I maintain that the only fair and reasonable interpretation is, they do not cover false and dishonest claims like the one hold by the relator; that although within the letter they are not within the meaning of the law.

Section forty of the city charter requires to be placed on tbe statement of the floating debt “ all the mature obligations of the city at the date of the passage of this act, to wit: all final judgments, warrants, registered certificates and unredeemed city notes,” and this amendment says that section forty was intended also to embrace “ all registored certificates or bills issued or approved by the Chairmen of the Committees of Finance and registered by the Controller of the city or his deputy.” * * * * * * *

Now, although section forty declares that all judgments, warrants, registored certificates,” etc., shall be embraced in the statement of the floating debt of New Orleans, this court hold in Monasterio’s ease that it did not cover the certificate presented by Monasterio, unless that certificate was found to be a valid debt of the city. The amendment extending the provision of section forty to embrace “ all registered certificates issued by the Chairmen of the Finance Committees,” in like manner ought to be construed to embrace only honest claims or certificates issued by the Finance Committees.

Under resolution No. 1467 valid certificates were issued by the Chairmen of the Finance Committees to the amount of $37,125 78, and false and fraudulent ones to the amount of $20,729 85.

Although both classes of these certificates fall within the letter of the statute amending section forty, to my mind it is only the valid certificates' that are within its meaning. This is the only just interpretation that can be placed upon this legislation without easting reproach upon its authors, because it would be impossible for honest men deliberately to enact a law compelling anyone to pay a false or fraudulent claim or a claim against good conscience.

Charity, at least to the Legislature, a co-ordinate department, demands the construction that false and dishonest claims were not intended to be embraced in the meaning of the statute, although they fall within its letter.

In all civilized countries law is held to promote honesty, to condemn fraud 'and to protect the people from spoliation and violence, and it can not fairly be presumed that the authors of the statute before us intended to ignore these boneficient motives solely for the purpose of rewarding the fraud perpetrated by Coleman & Co.

Juris praecepta sunt: honestévivere, altnm non laedre, sumn euiqiietribune.”

But the relator contends that his claim, whether valid or not, was. intended to be embraced in the statute, and the motive of the lawgiver was to promote the credit of New Orleans; that it was a measure of policy adopted by the political department of the State and it is the duty of the court to enforce it. This is a fallacy so transparent that it will not for a moment stand the test of scrutiny.

How is the credit of New Orleans to be advanced by driving it from the protection of the courts, and compelling it to be burdened with debts which it never contracted, and which in no wise inured to its benefit or advantage? Would the credit of an individual bo promoted if he were compelled to pay every false claim that might be trumped up against Mm? If Ins property be the common pledge of Ms creditors, would their confidence be enhanced by a statute placing that pledge within the grasp of every dishonest person?

In justice to the intelligence of the Legislature, I maintain they did not intend the payment of the fraudulent claim held by the relator as a measure or policy to advance the credit of New Orleans. But the position that the Legislature intended the payment of such claims as a measure of policy, is a bald assertion. There is nothing in the statute or its preamble to justify such a purpose. The title of the act is not an act to promote the credit of New Orleans, not an act to bestow a gratuity upon Hernandez, but “an act defining tho obligations of the city of New Orleans to be redeemed as part of the floating-debt, under the provisions of section 40, act No. 7, approved sixteenth March, 1870, and to enforce the same.” The whole purpose of the original act and its amendment was to provide for the redemption of certain mature obligations of the city, by requiring them to be placed, in the manner indicated, on the statement of the floating debt, for which funds of the city were1 to be issued, under section 41 of tho charter of 1870. Tho false and fraudulent certificate of the relator is not a mature obligation of the city; and, in my opinion, it does not fall within the meaning of section 40, as amended by act No. 103 of the .acts of 1871, especially when that section is read as interpreted in the Monasterio case, and in connection with section 41 of the city charter ■of 1870. But assuming- that it was the purpose of the Legislature to ■compel New Orleans to pay this fraudulent claim, I maintain it is not in their power to do so; that the grant to legislate does not embrace authority to plunder the citizens; that private property can not be taken for private purpose; that the Legislature can not take the property of A to give it to B; that it has not authority to take $4131 16 from the city treasury for tho purpose of bestowing a liberality upon the relator, Hernandez, to whom, the city is not bound either by a legal or natural obligation; and that as it can not take the money now in the treasury, it can not compel the city to issue its bonds -for the amount payable at a future day.

If private property can not be taken for private purposes at one time, it can not at another, because the taking is absolutely prohibited at any time.

“In respect to public or municipal corporations, which exist only for public purposes, as counties, cities and towns, the Legislature, under proper limitations, have the right to change, modify, enlarge, restrain or destroy them, securing, however, the property for the use of those for whom it was purchased.'' 2 Kent 305.

Notwithstanding the power of the Legislature over these public eoiqjorations, their private property is protected. Story on the Constitution, section 1393.

The same author in section 1399 says: “Whether, indeed, independently'- of the Constitution of the United States, the nature of republican and free governments does not necessarily- impose some restraints upon legislative power, lias been much discussed. It seems to be the general opinion, fortified by a strong current of judicial opinion, that since the American revolution no State government can be presumed to possess the transcendental sovereignty, to take away vested rights of property; to take the property of A and transfer it to B by mere legislative act. That government can scarcely be deemed to be free where -the rights of property are loft solely dependent upon a legislative body without any restraint.

“ The fundamental maxims of a free government seem to require that the rights of personal liberty and private property shall be held sacred. At least no court of justice in this country would be warranted in assuming that any State Legislature possessed a power to violate and disregard them, or that such a power, so repugnant to the common principles of justice and civil liberty, lurked under any general graut of legislative authority, or ought to be implied from any general expression of the will of the people in the usual forms of the constitutional delegation of power. The people can not be presumed to part with rights so vital to their security and well being without very strong and positive declarations to that effect.” See also Wilkins v. Leland, 2 Pet. 627, 657 ; Satterlee v. Mathewson, 2 Pet. 380, 412, 413, and also Fletcher v. Peck, 6 Cranch 67, 134.

“ Under our form of government the Legislature is not supreme. It is only one of the organs of that absolute sovereignty which resides in the whole body of the people. Like other departments of the government it can only exercise such powers as have been delegated to it, and when it steps beyond that boundary, its acts, like those of the most humble magistrate in the State who exceeds his jurisdiction, are utterly void.” 4 Hill 144.

“ The nature and end of legislative power will limit the exercise of it. !" * * There are certain vital principles in our free republican government which will determine and overrule an apparent and ■flagrant abuse of legislative power, such as to authorize manifest injustice by positive laws, or take away that security for personal liberty or private property, for the protection whereof tire government was -established.” * s 9 3 Dalas 386.

The Legislature has not, by the right of eminent domain, the right to take the property of a person to give to another, not even in police regulations.” 3 Paige, Chan. N. Y. Rep. 159; 8 Wendell 85; see also •18 Wendell 56, 61, 63; Cooley on Limitations 487; 21 Penn. 147.

Authority upon authority might be added in support of the position that tho Legislature has not the right to take the money or bonds of Now Orleans and bestow them, as a gratuity, upon the relator, Hernandez ; but I think enough has already been adduced to settle the question beyond doubt. I can not, however, refrain from adding the following quotation from Chief Justice Marshall, in which I entirely concur, viz:

uWe can not resist the conclusion that it would be a violation of the general tenure and spirit of the Constitution for the Legislature to attempt to deprive any citizen of his property without previously providing compensation therefor. And whenever such acts are passed, we believe it to be the duty of tho judiciary to disregard them and consider them as nullities. We can not perceive any reason which shall compel the judiciary to obey a legislative act at war with the tenor of the Constitution and the fundamental principles for the preservation of which the government was instituted, that would not apply with equal force to produce obedience to a legislative act directly opposed to any one of the positivo inhibitions of the Constitution. We grant the representatives of the people are the shepherds of the flock, but they are not exclusively such, although vested with great and extensive powers. If through inadvertence or design they should endeavor to sacrifice any one or more as victims, it can not be done so-long as the judiciary remain virtuous, intelligent and independent. Both departments must concur to work iniquity before the people can be made to mourn, and in bitterness to curse their government.”

In conclusion, I therefore maintain that the Legislature has not the authority to compel New Orleans to bestow its bonds for $4131 16 upon Hernandez as a gratuity. I can not call the fraudulent certificate he holds a debt of the city. I do not believe that act No. 103 of the acts of 1871, amending section 40 of the charter of the city, ought to he construed to embrace this false claim, because its title does not justify the purpose, and because the evident object of the lawgiver was not to bestow a gratuity, but to provide for the redemption of certain mature obligations of the city by issuing its bonds; and no other fair interpretation can be put upon sections 40 and 41 of the charter of 1870. I see no reason why the lawgiver should intend tho city to issue its-bonds to redeem the fraudulent certificates issued by the Chairmen of the Committees of Finance. We have held, in Monasterio’s case, that such was not intended in regard to the fraudulent certificates issued by the city itself. Now, if it would improve the credit of New Orleans to pay the fraudulent certificates issued by its agents, the Chairmen of tho Finance Committees, why would it not have the same effect to pay fraudulent certificates issued erroneously by itself? If it will improve the credit of New Orleans to pay the claim of Hernandez, why would not the payment of Monasterio have tho same effect, whether his claim be valid or not?

' This court has said to Monasterio, holding a registered certificate of the city, your claim ought not to be paid if it be fraudulent, as the defendants aver, notwithstanding section 40 declares that all registered certificates of the city shall bo put on the statement of the floating-debt. It.now says to Hernandez, your fraudulent certificate issued by the Chairmen of the Finance Committees ought to bo paid, simply because the amendment of section 40 declares that “ all registered certificates or bills issued or approved by the Chairmen of the Committees of Finance,” shall bo placed on the statement of tho floating-debt.

How the payment of fraudulent certificates issued by its agents can improve tho credit of New Orleans, more than the payment of fraudulent certificates erroneously issued by itself, I can not imagine. Indeed, the whole theory that the payment of such claims was intended by the Legislature as a policy to advance the credit of New Orleans, is the most palpable legal absurdity I have ever heard advanced in a court of justice.

For the reasons stated, I deem it my duty to dissent in this case.


source: Caselaw Access Project

author: Ludeling, C. J.

license: Public Domain

text:
    No. 3636.
    City of New Orleans v. John H. O’Connor. John H. O’Connor v. City of New Orleans. Same v. Same.
    Tlio plea of prescription of one, two and three years is untenable against an action for rent. An action for the recovery of rent is only prescribed by three years. C. C. 3538.
    Appeal from the Fourth District Court, parish of Orleans. Théard, J.

      George 8. Lacey, City Attorney, for plaintiff and appellee. Hays & New and F. F. Butler, for defendants and appellants.
   Ludeling, C. J.

The above throe suits were, by agreement, consolidated and tried together.

The suits of O’Connor v. The City were instituted to recover compensation for the use of a square of ground belonging to the plaintiff and used by the city. After those suits were instituted the city brought suit for tho expropriation of this property. It is proved and admitted that tho property is needed for public use, and tbe only question in dispute is as to the value of the property and the rents for its use hitherto. The caso was tried by a jury, who rendered a verdict for §2000 for rents and §28,000 for the price of the grounds. O’Connor has appealed. The witnesses who testified in relation to the value of this property varied between $33,000 and $56,000. They appear to be well acquainted with the property and the value of such property in the neighborhood. The verdict for the sum of $28,000 was therefore manifestly incorrect. We think it should have been for $46,000, tliat being about the average of the estimates of the witnesses.

The plea of prescription of one, two and three years against the claim for rents is untenable. The claim for rents is prescriptable in three years. C. C. 3538. The suits for rent were instituted within three years.

It is therefore ordered and adjudged that the verdict of the jury be set aside; that the judgment of the district court be annulled, and proceeding to render such judgment as should have been rendered, it is adjudged and decreed that there be judgment in favor of John H. O’Connor against the city of New Orleans for the sum of two thousand dollars for the rent of the square, and that there be judgment in favor of the city of New Orleans against the said John II. O’Connor entitling the said city, upon paying unto John H. O’Connor, his heirs or assigns forty-six thousand dollars, with ñve per cent, per annum from the seventh of December, 1871, and costs, to divest the title of said John H. O’Connor in and to the square of ground situated in said city and bounded by the river front, Richard, Orange and New Levee streets, and that the said city of New Orleans be subrogated to all the rights which the said O’Connor had to said property. It is further ordered that the appellee pay the costs of appeal.


text:
    No. 3550.
    J. C. Murphy & Co. v. Charles E. Rulh — Mrs. Rulh, Third Opponent ; and R. L. Bowles v. Charles E. Rulh — Mrs. Rulh, Third Opponent.
    In this caso the property oi the debtor had been sold under a judgment, and a twelve months’ bond was given for the price, which was less than the amount of the judgment. The widow and heirs of the deceased debtor, left in necessitous circumstances, sought by rule to have the bond or its proceeds applied to the payment of their claim of one thousand dollars under the homestead act. Held — That the xmoperty having been sold before the death of the debtor, it no longer formed a part of his succession, nor did the bond which was the price thereof, and the widow and heirs had no claim against the property, nor the proceeds thereof, in payment of their demand.
    Appeal from the Sixth. District Court, parish of Orleans. Oooley, J.

      JohnH. McKee and Jlornor & Benedict, for plaintiffs and de-
    fendants in rule, appellees. A. J. Villere, for appellants.
   Ludeling, C. J.

The plaintiffs, Murphy & Co. and R. L. Bowles, obtained judgments against Charles E. Rulh, and caused his property to be seized and sold on a twelve months’ credit. The purchaser gave his twelve months’ bond in favor of the sheriff. Afterwards, but before the maturity of the twelve months bond, Charles E. Rulh died, leaving his widow and children in necessitous circumstances.

This suit was commenced by rule against Murphy & Co., J. Martin, R. L. Bowles and J. B. Maynard, to have tlie proceeds of the twelve months’ bond appropriated to the widow and, children of the deceased, under the homestead act. There was judgment in favor of the widow and children, and Mnrpliy & Co. and K. L. Bowles have appealed. The property of the deceased having been sold under execution, he ceased to have any right or title thereto, or in the bond given for the price, as it was for less than the amount of the judgments under which the property was sold, and it did not belong to the succession of Charles E. Bulh. llhe law directs that the widow and children of the deceased, left in necessitous circumstances, and not possessed in their own right of property to the amount of one thousand dollars, shall bo entitled to receive from the succession of their deceased father or husband a sum which added to what they own will make one thousand dollars. Bevised Statutes, p. 333, § 1693.

It is therefore ordered and adjudged that the judgment of the district court bo avoided as to the appellants, and that there be judgment against the plaintiffs in the rule, with costs of both courts.


author: Taliaeerro, J.

text:
    No. 3674.
    Mary F. Webb v. Squire W. Bell.
    If it "be sliown that the wife brought no flowery into the marriage, and. that she has no actual claims against her husband, still she has the right to obtain a separation of property from her husband if she shows that he is in embarrassed circumstances, and that his con. dition is such that she might loose any property sho might receive thereafter in her own right from legacies or otherwise if it was to fall into the community.
    Appeal from the Fifteenth Judicial District, parish of Assumption. Beatie J.

      Meholls & Folse, for plaintiff and appellee. Walter Gtiion, for defendant and appellant.
   Taliaeerro, J.

This is a suit by the wife against her husband to obtain a separation of property and a dissolution of tho community between them.

The petition is opposed by the husband on the ground that there is neither allegation or proof that the plaintiff had, at the time of the institution of this suit, a separate trade or industry of auy kind from which sho was deriving revenue or means inuring to her own benefit, and which were in danger on account of the embarrassed condition of the husband’s affairs. There was judgment in the court below in conformity with the prayer of the petition, and the defendant has appealed.

The questions raised by the pleadings in this case were considered in the case of Davock v. Darcy, 6 Rob. 342, and the conclusions arrived at were, that it would be giving the article of tho code too narrow a construction to limit the wife’s right to a separation to the cases therein enumerated; that although a woman has brought no dowry and has' no actual claims against her husband, she is not absolutely precluded from the right of obtaining a separation of property; that the object of a separation of property is twofold, it provides for the present by enabling the wife to recover her dowry or other claims against her husband, and it provides for the future by putting an end to the community and thus securing to the wife her individual acquisitions or'gains thereafter in whatever manner obtained.”

The doctrine of this caso has been reaffirmed by subsequent decisions. 6 An. 633 ; 7 Ah. 343; 10 An. 272; 11 An. 525.

It is proved in the case now before us that the wife has a small amount -of paraphernal property shown to be wortli nine hundred dollars; that the husband is in embarrassed circumstances, owning no property, and that there are judgments against him amounting to more than twenty thousand dollars. The purpose sought by separation of property and dissolution of community in this case seems to bo to enable the wife, hy the use of her own limited means and those she might obtain through her relatives, to earn for herself and child a support without having her earnings fall into the community.

We think the judgment of the lower court correct.

It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed, with costs.


author: Ludeling, C..J.

text:
    No. 3749.
    Bouligny & Esclapon v. Gilbert Lacour—Numa Gilliard, Intervenor.
    Au overseer on a plantation lias a preference over the furnisher of supplies on the proceeds of the crop for tlio payment of his wagos.
    Appeal from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      Myan <& White, for plaintiffs and appellees. Leivis & Himter, for intervenor and appellant.
   Ludeling, C..J.

The plaintiffs having sued the defendant for supplies for carrying on his plantation during- the year 1866, caused some cotton to be sequestered. Thereupon GiRiard intervened and claimed •that defendant owed him one thousand dollars for wages as overseer on the plantation for that year, and that he had a right to be paid in preference to the plaintiffs out of the proceeds of the cotton. The only contest is in regard to the facts whether or not the contract alleged on was really made and whether the intervenor performed the services alleged. The defendant and another witness swear positively that the contract was entered into as alleged and that the intervenor performed the services of an overseer.

In the absence of fraud we do not conceive that the age or inexperience of the intervenor can be taken into consideration in determining his rights under the contract.

It is therefore ordered and adjudged that the judgment of the lower court be amended so as to allow the intervenor one thousand dollars, with legal interest from judicial demand, and that, in other respects, the judgment he affirmed, appellees paying costs of appeal.


text:
    No. 2450.
    W. J. Jurgielewiez v. Laura Jurgielewiez.
    A judgment of divorce a vinculo matrimonii rendered on a rulo taken by one of tito parties on a judgment of separation from bed and board, is absolutely null and void if tlie opposing party has not boon cited nor has appeared to defend tho suit.
    Appeal from the Fifth District Court, parish of Orleans. Leaumont, J.

      Fellows & Mills, for plaintiff and appellee. Gotton & Levy, for defendant and appellant.
   Ludeling, C. J.

The plaintiff having obtained a judgment of separation from bed and hoard on the twenty-eighth of June, 1867, took a rule on the defendant on the eighteenth of March, 1868, to show cause why a decree of divoree a vinculo matrimonii should not he rendered, and on the twenty-third day of March, 1868, a final judgment was rendered on the rule in favor of the plaintiff, notwithstanding defendant had made no appearance. From this judgment the defendant has appealed.

We think the judgment is a nullity because the defendant was not legally cited and she did not appear to defend the suit. 18 An. 455, Gernon v. Hickey; 10 Au. 156, Leachaud v. Wife.

It is therefore ordered that the judgment of the district court he annulled and that the i>laintiff pay the costs of suit.

Rehearing refused.


author: Howe, J.

text:
    No. 2420.
    Emile Erlanger v. Bernard Avegno.
    All judgments for money should be expressed in dollars and cents. A judgment given by the court a qua, for a certain amount in francs, is therefore erroneous, and -will be amended on appeal so as to express the amount in dollars and cents.
    Appeal from the Fourth District Court, parish of Orleans. TMard> J.

      1\ B. Hart, for plaintiff and appellee. Hays & New, for defendant and appellant.
   Howe, J.

The plaintiff obtained judgment against the defendant for 11,580 58-10Ó francs, and defendant appealed.

The only point made by appellant is that the judgment is erroneous, in being- rendered for francs instead of for an equivalent amount of dollars and cents.

We think the judgment should ho amended in this respect. R. S. 1870, § 4; Marshall v. Grand Gulf Railroad, 5 An. 360 ; Gallearo v. Pierre, 18 An. 10.

It is therefore ordered that the judgment appealed from bo amended, as to tho expression of its amount, by substituting- for tho number of francs therein stated the sum of two thousand one hundred and fifty-three dollars and ninety-nine cents, and that as thus amended the said judgment he affirmed; appellee to pay costs of appeal.


author: Howell, J.

text:
    No. 3666.
    H. Verges v. Prejean & Bernard. M. Haydel v. Mrs. C. Keller—D. Bergeron, Opponent. (Consolidated Cases.)
    A mortgage retained in favor of tlie vendor in an act of sale of real estate must be recorded in the book of conventional mortgages to have effect against tliird persons. If it be only recorded in tlie book of convoyárteos, then subsequent mortgages, which have been regularly recorded in tlie proper book, will tako rank over it in tlie distribution of tlie proceeds of the sale of the iiroperty mortgaged.
    Appeal from the Fifteenth Judicial District Court, parish of Terrebonne. . Gates, J.

      JS. W. Blalce, for appellant. F. S. Goode, for appellees.
   Howell, J.

The only question presented in this controversy is the validity of the registry of the mortgage and vendor’s privilege retained by Drausin Bergeron, the third opponent, claiming the proceeds of property sold under a mortgage granted and recorded subsequent to his.

The facts of the case are that the act of sale in which Bergeron’s mortgage was retained was registered in the book of conveyances kept by the recorder of mortgages, but not in the hook of conventional mortgages, as required bylaw, while the mortgage of Verges, under which the proceeds were realized, was properly registered. It is contended, however, by Bergeron, that, because during a period of several years, embracing the date of his sale, no registry of mortgages was made in the book of conventional mortgages, the registry of his act of sale in the book ot conve3rances must be held to he a compliance with law and operate the recording of his mortgage and vendor’s privilege, and he quotes several cases as authority to sustain this position. See 2 An. 438, 800,- 5 An. 154. In those cases no special book for mortgages was kept by the recorder and all sales and all mortgages were inscribed in the same hook, and it was properly held that it is only where separate hooks are kept that parties can bo led astray by an improper registry. In the case at bar it is shown that separate hooks were kept in the office, but for several years the recorder of the parish failed to make any registry or inscription in the hook of conventional mortgages, and the plaintiff, Verges, was misled as to the alleged registry of Bergeron’s mortgage, for before taking his mortgage he employed counsel to examine the records, who did so and obtained a certificate from tlie recorder that no mortgage upon the property existed at the time, except one in favor of the said Verges, which was recognized and included in the one which was enforced in this proceeding.

The law required that if the act contain a conveyance of real estate without a mortgage, it should he recorded in a hook of conveyances; if it contain a conveyance of real estate, together with a mortgage, it should he recorded doth in said hook of conveyances and in a book of conventional mortgages. Bergeron’s act contained a sale of real estate together with a mortgage, and was recorded in the book of conveyances, but not in the book of conventional mortgages, then in the recorder's office. Hence his mortgage liad no effect against third persons. 21 An. 427; Acts of 1855, page 407, sections 13 and 14, page 335, sections 1 and 2; C. C. 3314, 3332.

It is therefore ordered that the judgment appealed from be reversed and that there bo judgment in favor of plaintiff, H. Verges, decreeing him entitled to the proceeds of the sale of September 7, 1867, in satisfaction of his judgment with mortgage against defendants, Prejean & Bernard, with costs in both courts.


author: Taliaeebro, J.

text:
    No. 3254.
    Alceste Gaiennie, Administrator, v. Widow Gervais Gaiennie—DePoorter and Wildersen, Third Opponents.
    Tile fact that a salo of succession property lias not boon recorded does not affcot the title as between tho vendor, tho succession, and tho vendee, tho purchaser. In such a case if the vendeo places a mortgage on tho property after lie has purchased it, the holder of such mortgage may cause tho property to bo seized and sold in satisfaction thereof, and the title of tho purchaser to the property mortgaged will not bo defective because the act of sale from tho succession to the mortgageor was not recorded beforo tho mortgage was given.
    Appeal from the Fourth Judicial District Court, parish of St. James. Beauvais, J.

      Charles Louque, for plaintiff and appellant. Legendre di Boche, for third opponents and appellees.
   Taliaeebro, J.

The plaintiff, representing himself to be the administrator of the succession of Gervais Gaiennie, deceased, obtained an order of seizure and sale of a tract of land lying in the parish of St. Janies, alleged by him to be mortgaged to the succession by the widow of decedent, who, as it appears, purchased it at the probate sale of the succession. As evidence of the widow’s indebtedness, three several promissory notes were presented, each note for the sum of $19,717 82, with eight per cent, interest from their respective maturities. The opponents applied for and obtained an injunction to restrain the sheriff from selling the property, alleging themselves to be just owners of it, and declared that it was purchased at' a sheriff’s sale as property of the Widow Gaiennie, who mortgaged it to Laiche to secure a loan of money obtained from him, and under whose mortgage it was sold.

There was judgment iu the court below annulling the act under which the plaintiff had obtained the order of seizure and sale, and decreeing in favor of the opponents. From this- judgment the plaintiff appeals.

The facts appear to bo that Gervais Gaiennie died in the parish of St. James in 1854, leaving several heirs, issue of his marriage With his surviving widow, Nathalie Chenet, the defendant in this case. The property all belonged to the community. Alceste Gaiennie, a son and heir of the decedent, and who is the present plaintiff, became administrator of tho estate. An order of court was obtained for the sale of all the property of the succession, in order to effect a partition. The entire property, land, slaves and personal property, was purchased by Mrs. Gaiennie, tho widow, at the price of $100,000. In August, 1859, the administrator filed in court his final account. Pursuant to the decree of partition, he reduced tho assets to cash by deducting eight per cent, per annum from the credit installments, making- the whole amount $88,000. The debts amounted to $40,846, and were paid with funds received from the widow. The administrator gave one-half of the remainder to the widow in her own right, and the other half, accruing- to tho heirs, he paid over to Mrs. Gaiennie as usufructuary. On the third of December, 1859, the account of administration was approved and homologated. At this date it seems all tho heirs were of age except two. On the thirtieth of March, 1859, Mrs. Gaiennie negotiated a loan of money with Pierre Laiche to the amount of $14,389, to secure the payment of which she mortgaged the property she purchased at the succession sale of her husband. The property was then subject to no prior mortgages except one to the Citizens’ Bank to secure stock notes, and the tacit mortgage in favor of the two minors, Nathalie and Francois Gaiennie. The mortgage to Laicho was recorded on the same day it was executed, and was reinscribed on the thirtieth, of March, 1865. On the twenty-ninth of July, 1865, the prooes vevbal of sale by tho administrator made on tho twenty-third of November, 1858, which had not previously been recorded in the recorder’s office, was registered in the mortgage book, and on the same day Mrs. Gaiennie, by authentic act, granted a special mortgage on the same property in fervor of her children, all of whom were then of age, to secure them in the sum of $23,760, being their share in the succession of their father, of which she reserved her usufruct.

On the twenty-third of January, 1867, Laiche foreclosed Ms mortgage and the property mortgaged was sold, and DePoorter, one of the third opponents, became the purchaser at the price of $25,000. He paid $3065 84, tho amount owing to Francis Gaiennie, assumed the Citizens’ Bank mortgage, paid the balance owing to Laiche, and retained the balance, $9660 77, on account of ono of the notes secured by the mortgage to Laiche, the purchaser being tho holder of the note. Soon after this sale, DePoorter sold an undivided half of the Gaiennie plantation to Wiluersen, tho joint owners being in peaceable possession of the property until disturbed by the executory process taken out by the plaintiff in this ease.

On the twenty-fifth of August, 1870, the plaintiff, in an act before a notary, in which he assumed the character of administrator of the succession of Gervais Gaiennie, declared that the Widow Gaiennie had not complied with the terms of the sale of the property of Gaiennie’s succession made in November,' 1858, and in consequence thereof he had not been able to pass a regular act of sale to the purchaser, and proceeded then, in the act of 1870, to sell to Widow Gaiennie the property of the succession, consisting of the land, thirty-eight slaves, and. all the personal property, for $100,000, in part payment of which Mrs. Gaiennie executed three notes, each for the sum of $19,717, dated November 23, 1858, payable in one, two and three years after date, and mortgaged the property purchased to secure their payment. In September, 1870, the plaintiff seized, under executory process, the property in possession of the opponents, and they enjoined the sale.

The course pursued in this case by the plaintiff and defendant seems anomalous and unsustained by law. It is argued on behalf of the plaintiff, claiming still to be administrator of the estate of Gervais Gaiennio, that as the act of sale of the succession property was not recorded until the twenty-ninth of July, 1865, it was utterly null as to the opponents, and therefore, being unrecorded prior to that time, the mortgagee, Laichc, acquired no right by the mortgage executed in his favor by Widow Gaiennie on the thirtieth of March, 1859, and consequently under the foreclosure of Laiche’s mortgage and the sale under it, the opponents acquired no title. We do not assent to this reasoning as being sound. The unrecorded act could not affect any of the rights of third parties, but that operated no disability in Mrs. Gaiennie to sell or to mortgage the property, and none in the mortgagee to accept a mortgage from her. Her title was perfect as between herself and the succession. The title of the estate was divested, and it was vested in her. Being qwnor, she could sell or mortgage the property. Her abstract right in it was not affected by the omission to record; that omission related only to the effect of her title as to third parties.

The proceedings in relation to the estate of Gervais Gaiennie seem to have been conducted regularly and with precision. The proees verbal of the sale contains everything necessary to constitute it a proper act of conveyance. No subsequent deed of sale by the administrator or the heirs was necessary to its validity. The interposition of neither was required by the order or terms of the sale to render the proees verbal a valid act of transfer. The pretense of the plaintiff, in August, 1870, more than ten years after his final account of administration of the estate of Gaiennie had been duly approved and homologated by the proper court, that he had not made a title to the purchaser, is entitled to'no consideration. The exception plene ministravit was well taken by the opponents. The functions of the administrator had long previous to August, 1870, been fully exercised. All was done that was required to be done by au administrator. Tbe property had been sold, tbe debts all paid, the partition ordered by tbe court bad been completed, and tbe estate distributed between tbe heirs and the widow according to their respective shares. Tlio administrator bad presented tbe filial account of bis administration, and which, not being opposed after due notice, was confirmed by a final order of tbe court. It was altogether an uncalled for act bis going before a notary on tbe twenty-fifth of August, 1870, and executing a deed of sale in favor of'Mrs. Gaiennio of a tract of land embracing tbe plantation that bad belonged to the succession of Gervais Gaiennie, and with it thirty-eight slaves,, taking notes dated twenty-third of November, 1858, and made payable in one, two and three years from date, secured by mortgage and privilege on the property sold. This act file lower court properly decided to be null and void. Tbe plea of prescription set up by tbe opponents against the notes, it becomes unnecessary to consider.

It is therefore ordered, adjudged and decreed that the judgment of tbe district court be affirmed, with costs.


text:
    No. 3673.
    Paul Lefevre v. Miss Estelle Landry—J. A. Landry, Garnishee.
    A judgment creditor can not maintain a garnishment process, or seize by attachment, tlio rights and credits oí' tlio debtor, until he has obtained judgment on his demand, unless he shows that a “fraudulent or simulated transfer has been made by tlio debtor of his property before tlio attachment was levied. C. P. 240.
    Appeal from the Fourth Judicial District Court, parish of Ascension. Bemmais, J.

      B. N. Simes, for plaintiff and appellant. Duffel, Niehols & Pugh, for defendant and appellee.
   Ludeling, C. J.

Tbe plaintiff sued tbe defendant on a stated account, and alleged that she bad made a simulated transfer of all her property to J. A. Landry, -with tbe purpose of defrauding her creditors, and be prayed for a writ of attachment, and that J. A. Landry be-garnisheed.

There was judgment in favor of tbe plaintiff for tbe amount of bis-claim and dismissing tbe attachment, and be has appealed.

It is admitted that tbe plaintiff has failed to prove that tbe transfer from defendant to J. A. Landry was fraudulent. It follows as a matter of course, therefore, that tbe attachment, which was based on tbe supposition that tbe transfer bad been fraudulent or simulated, must fall — • “sublato fundamento cadit opusP Hence tbe plaintiff could neither attach nor seize otherwise any right of defendant before be bad a judgment. C. P., art. 240, No. 4.

It is therefore ordered and adjudged that tbe judgment of tbe district court be affirmed, with costs of appeal.


author: Taliaferro, J.

text:
    No. 3721.
    Samuel Dickson v. The Successions of John and Amelia Compton.
    An executor can not bind the estate lie represents by the acknowledgment of a debt which is already prescribed, nor can he bind the estate by giving a new note in the place of one already prescribed.
    Appeal from the Ninth Judicial District Court, parish of Rapides. Osborn, J.

      James G. White, for plaintiff and appellee. Thomas O. Manning, for defendants and appellants.
   Taliaferro, J.

The plaintiff sues a number of persons, whom he alleges are the heirs and legal representatives of John and Amelia Compton, deceased, on a promissory note executed in Ms favor by L. G. Compton, in his capacity of executor of the successions of his father and mother, and upon 'an account for work and labor done by Mm as a brick mason on the two plantations belonging to those successions.The note sued upon is dated October 15, 1867; is made payable twelve months after date; is for the sum of $1789 75, bearing eight per cent, interest from date, and expresses that it was for brick work done on the plantations. L. G. Compton, the executor who gave this note, died, it seems, early in 1868, and no dative testamentary executor or other representative of these successions has since been appointed. The open account sued on is for $461, for work and labor done during the years 1866, 1867 and 1868.

The answer is a general denial. The prescription of three years is pleaded to the open account, and they deny any liability on the note sued upon. They aver that it was given by the executor, L. G. Compton, in renewal of a previous note, which was prescribed at the time the note sued on was given. The plaintiff had judgment in his favor-on the note, hut his demand on the account was rejected as being prescribed. The plaintiff appears to have acquiesced in the judgment, as he has not appealed from it. The defendants have appealed.

The defense seems to be made out. John Compton, it seems, died in 1855, and his wife, Amelia, in 1857. Their son, L. G. Compton, appears to have carried on both plantations in his capacity of executor until the time of his death in 1868. The note in question was given by the executor ten years or more after the death of his ancestors. The plaintiff, by his own testimony, states the facts in regard to the taking up of the original -note by the executor, as follows: “The old note was signed the same as the one sued on, and was given just before the wax, and was for about $4000. I knocked off a good deal, say between $800 and $1000. At the date of the last note I bought some sugar cane for Branch Tanner from L. G. Compton, about $2250 worth; that amount was placed on credit on the old note, and the note sued was given for balance duo me. No other credit was on the old note except the sugar cane.” '

It is a matter of historical notoriety that the war commenced in the early part of the year 1861. The old note, then, must have been given in 1860 or early in 1861, and it was prescribed at the date of the new note, the one sued on.

It has been frequently decided that an executor or administrator is without power to bind an estate by acknowledging a debt against an estate already prescribed, and in the case of Lafon’s Heirs v. His Executors, it was held that executors can not even by payment, if unauthorized by the proper court, deprive creditors, legatees and heirs of the protection of an acquired prescription. 3 N. S. 716. See also 12 Rob. 16; 21 An. 373; 22 An. 445.

It is therefore ordered, adjudged and decreed that the judgment of the district court, so far as it sustained the plea of prescription plead against the account sued on, be affirmed; but in regard to the note, that its decree be annulled, avoided and reversed. It is further ordered and adjudged that there be judgment in favor of the defendants, the plaintiff and appellee paying costs in both courts.


author: Wyly, J.

text:
    No. 2461.

    R. H. Noble v. Louis Trost and Henry Weber.
    Plaintiff sued defendants as partners in tlio building business for damages resulting ironi the failure on tlioir part to comply with, their contract in erecting a building. The evidence showed that the defendants were not partners at the time the contract was made, and the contract was made with only one of the defendants. Held — That the defendants not being partners at the time the contract was made, the plaintiff could not recover from the partnership the damages resulting from its violation.
    Appeal from the Fourth District Court, parish of Orleans. Thcanl, J.

      JSentinclc JSgan, for plaintiff and appellant. J. Dirrhammer, for defendants and appellees.
   Wyly, J.

The plaintiff sues the defendants as partners in the carpenter business for $4257 87, the amount which he alleges it cost him to complete a certain building tliey bad contracted to erect for him, but abandoned it before completing the contract. The court gave judgment against the defendant, Trost, for the amount claimed, but rejected plaintiff’s demand against the defendant, Weber. From tliis judgment the plaintiff appeals.

The question is,-was Weber a partner of the defendant, Trost, at the time the latter entered into the contract with the plaintiff to build the house?

The contract was made with Trost alone in a notarial act; the plaintiff did not contract with him as the partner of Weber, because it is shown he was not aware of it at the time. According to the testimony of Trost, the defendant, the principal witness for the plaintiff, Weber was only a dormant partner. And although this witness deposes that Weber was his partner at the time he contracted to build the house for the plaintiff ou the twenty-ninth clay of October, 1866, he swore in the case of George Merz v. Trost & Weber, as appears by his deposition in that case, received as evidence in this, that his partnership with Weber began in the latter part of April, 1866, and ended “in the latter part of September, 1866,” and this declaration he repeated several times in his deposition in that case. This was nearly a month before the contract was made with the plaintiff.

The defendant, Weber, testified that he was not the partner of Trost,, and his statement is corroborated by other evidence in the record.

There is, however, a mass of evidence which is contradictory and unsatisfactory; but after carefully examining it, we have come to the. conclusion that the judge a quo did not err in deciding in favor of the defendant, Weber, his liability not being established, because it is not sufficiently shown that he was a partner of Trost, as alleged. If he had been a partner, the partnership was dissolved, as we believe from the evidence, before the consummation of the contract upon which this suit is founded. If the defendant, Weber, had been a partner, he was only a dormant partner, and no notice of the dissolution of the partnership was necessary in order to escape liability to the plaintiff, because it is shown that the latter-contracted with Trost without a knowledge of said partnership. Story on Partnership, 255, sec. 151); Smith’s Mercantile Law, 87, 88; 10 R. 444; 5 An. 167.

It is therefore ordered that the judgment herein bo affirmed, with costs.

Rehearing refused.


text:
    No. 3554.
    H. Forbes, Wife of George Warner, v. V. C. Burke et al. D. R. Carroll, Intervenor.
    After a, succession bas been partitioned, among the heirs, and the portions allotted to eacli one-of the heirs has been set apart to them, the share of one of the heirs can not be pledged,, because it can not be delivered.
    A written instrument in favor of a creditor signed by one of the heirs, acknowledging her indebtedness and transferring her interest to the creditor, has no legal effect, because there was no fixed price, nor an extinguishment of the debt, it being neither a sale nor a payment of the dobt.
    Appeal from the Second District Court, parish of Orleans. JDuvigneaucl, J.

      Hays ié New and M. Shacldeford, for appellant. JD. O. Jjdbait, for appellees.
   Howell, J.

After judgment was rendered herein in February, 1871, recognizing the heirs of John and Mary Alexander, fixing their respective portions, and ordering the sale of the property to effect a partition, and after the sale had been made, D. R. Carroll intervened, claiming the portion allotted to Lina Mary Quirk, one of said heirs, by virtue of the following instrument:

“ New Orleans, first November, 1861.
Being indebted to D. E. Carroll & Co. in a sum exceeding three thousand dollars, and being desirous to secure to them whatever I may owe them upon a settlement of accounts, I hereby transfer, sell and assign to them all my right, title and interest in and to the succession of Mary Ann Williamson Alexander, of which succession I am an heir, having inherited from my child, who was the grandchild of the said Mrs. Alexander, and who died subsequent to her and her mother.
(Signed) D. V. QUIEN.” .

In connection with this, J. G-. McLearn, one of the firm of D. E. Carroll & Co., testified that said Quirk being indebted to his firm, they requested him. to give them some security or relieve them from his indebtedness, and that the above transfer was given as a security to pay them what he owed them. Such was the object of it, Quirk hoping that something would be realized out of it.

There being no fixed price nor an extinguishment-of the debt, there was neither a sale nor a giving in payment. And as a succession right can not be pledged, because a delivery can-not be made (3 L. 156), the above instrument was without any effect. The ex parte order of the court based on it could not give it force as against those not parties to the suit.

It is therefore ordered that the judgment appealed from be affirmed, with costs.


author: Taliaferro, J. Howell, J., Mr. Justice Howe

text:
    No. 3619.
    Louisiana State Lottery Company v. City of New Orleans.
    Tlie Legislature has the power under the Constitution to commute the taxes imposed on a corporation created by it, and thereby to relieve it from the payment of all other licenses or taxes by tho State itself or by any municipality created and authorized by the Legis- \ latnre to levy a license or tax on such corporation. The exemption of the Lottery Company, in its charter, from the payment of all other taxes and licenses, on its payment annually into the State treasury a certain amount for the benefit of the school fund, is not therefore in conflict with article 118 of the Constitution, which requires that taxation shall be equal and uniform throughout the State.
    The doctrine announced in the case of the State Lottery Company v. A. Bichoux et al., 23 An. i>age 743, deciding that the title to the act creating the Lottery Company was not in conflict with article 114 of the Constitution, which requires that the objects of every act must be expressed in its title, is reaffirmed by this decision, and it is again held that the title of said act sufficiently expresses its objects.
    Appeal from the Eigbtb District Court, parish of Orleans. Dibble, J.

      Joseph P. Uornor, for plaintiff and appellee. Bufas Waples, for city of New Orleans, appellant.
   Taliaferro, J.

The plaintiff obtained an injunction against the city and Police Board, complaining that the city by its agents and officials, and the Board of Metropolitan Police by its officers, were annoying the lottery company by persistently calling upon them and their agents, demanding to see tlie licenses granted .to them by the city, and that certain members of the police force of the Board of Metropolitan Police had illegally arrested two of the company’s agents and closed their places of business, on tho alleged ground that they had not taken out licenses from the city for carrying on their business. The plaintiff charges that by the president of the company the law •exempting it from the payment of all municipal taxes and licenses were exhibited to tho recorder who issued the warrants of arrest, and a release unconditionally of the persons arrested was demanded, but which was refused unless under bail.

The Board of Metropolitan Police answered by general denial. Tho .answer of the city denies the exemption by law of the lottery company from the payment of any taxes and licenses to the city, and makes the points:

First — That tho act of the Legislature under which the company sets up the immunity it claims, is unconstitutional and null, for the reason that the purpose and' object of the act is not expressed by its title, as required by the Constitution of tho State, article 114.

Second — That the act is violative of article 118 of the State Constitution, because it infringes the principle of equality and imiformity in the matter of imposing taxes, the plaintiff paying a fixed sum annually to the school fund, and paying nothing for the other purposes of government; that the Legislature under the Constitution is inhibited from exempting from taxation any species of property except such as is actually used for charitable, educational or religious purposes.

Third — That tho act is in violation of article 2 of the State Constitution, for the reason that it grants certain rights to the plaintiff which are denied to other citizens of the State.

The city sets up a roconventional demand of $2500 against the plaintiff, alleged to be owing and due by tho company for city licenses for the vending of lottery tickets.

There was judgment in favor of the plaintiff perpetuating the in junction, and the city-has taken this appeal.

In relation to the first ground taken in defense, we had occasion recently to determine that the title of the act No. 25 of the session of 1868, entitled “An act to increase the revenues of the State, and to authorize tho incorporation and establishment of tho Louisiana Lottery Company, and to repeal certain acts now in force,” is sufficiently exj>ressive of the objects of the act. 23 An., page 743, Louisiana State Lottery Company v. A. Richoux et al.

Where the general scope and purpose of the legislator is apparent, and the objects embraced in a legislative act are indicated by its title in terms that convey to the mind the character of the^act and the ends aimed at in establishing it, there is a sufficient compliance with the provisions of article 114 of the Constitution. To require the objects of an act to be fully and succinctly declared in its title, would be to-require its title to contain all that the act itself contained, an inconvenience incompatible with practical law malting. If such a requireinent were enforced, but few of the laws in our statute books could beheld valid.

To the second ground of defense, that the act is in deregation of the equality and uniformity required in levying taxes, it may be said that the power of a State Legislature to impose what is known as a commutation tax, is a well recognized power, not only in our own jurisprudence, but generally. 11 An. 733; 9 Wallace 50; 17 Illinois-291; 30 Indiana 146. In the act under consideration, the Legislature has deemed it advisable to grant to the lottery company an exemption from all other taxation, except that of paying $40,000 per annum to-the State for public education. On the commutation principle, we think the act is not violative of the Constitution. It Is not clear that the city has any ground to object to this exemption by the State of the company it claims the right to require the payment of licenses-from, the city being a municipal corporation and deriving its right to-levy licenses from the State, and in this instance the right is withheld.

For these reasons we think the third ground taken in defense, as-well as the reconventional demand set up by the defendant, are untenable.

It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed, with costs.

Howell, J.,

concurring. I concur in the conclusion in this case, on. the grounds that the majority of this court have heretofore declared, the title in question constitutional, and the city has no interest in raising the question as to the uniformity of taxation. The tax in this-case is simply the price for a license to carry on the business of the corporation, and the act of incorporation expressly exempts it from “ all other licenses of any kind whatever, whether from State, parish or municipal authorities.’^ This takes from the city the power which, it had under the general authority to levy license taxes, to impose a license tax on this company. Whether this can dispense with the necessity to obtain a license froni'the State, and whether the Legislature can commute taxes under the terms of article 118 of the Constitution of 1868, are questions upon which I think it unnecessary to-express an opinion in this case.

Mr. Justice Howe

concurs in the above opinion.


text:
    No. 2426.
    John Falconer v. Kate G. Stapleton.
    The authorization hy the judge ,of a married woman to borrow money and mortgage lie^ separate property therefor, under the provisions of the act of fifteenth of March, 1855, must he given before the debt is contracted or the mortgage is given.
    Appeal from the Fourth District Court, parish of Orleans. TMard, J„

      W. JB. Koonts and John F. FlKoit, for plaintiff. L. F. Simondsy for defendant and appellee.
   Taliaferro, J.

The plaintiff appeals from the judgment perpetuating the injunction sued out by the defendant, a married woman, to restrain the executory process obtained by the former on the mortgage note of the latter for $10,000.

The defendant, in her petition for injunction, alleges that she is a married woman, the wife of Edward Stapleton; that there was no consideration for the mortgage sought to be enforced against her property; that-plaintiff did not, in fact, loan or furnish her any money;, and that if any debt was due the plaintiff at the time of executing the mortgage, it was due by her husband and not by her.

The testimony of the defendant, wlio was a witness in the case, fully sustains her allegations, and the plaintiff offered no evidence to contradict it.

But the plaintiff contends that the mortgage was executed with the authorization of the judge in conformity with the act of the fifteenth March, 1855, and it need not be shown that the debt secured by the mortgage inured to the benefit of the defendant.

It is not stated in the act of mortgage that the defendant was authorized by the judge, under the statute referred to, to contract the debt.

The debt was contracted and the mortgage executed on the sixteenth of November, 1866. On the seventeenth of November, 1866, the judge gave his certificate, authorizing the defendant to borrow $10,000, and, “with the authorization of her husband, to hypothecate or mortgage her separate property for the purpose of borrowing said sum of ten thousand dollars.”

The issue is correctly stated in the brief of the defendant’s counsel.. It is: When the defendant executed the mortgage had she the required authorization of the judge ? Did the plaintiff lend the defendant ton thousand dollars, or any other sum, after the judge’s authorization to. contract the debt ? From the evidence we are constrained to answer both of these propositions in the negative.

The validity of the mortgage of the sixteenth of November, 1866j. depends upon the authority of the defendant at the time to contract the debt. It can not be strengthened by the authority of the judge, given on the seventeenth of November, 1866. He- authorized a débito be contracted. The one already contracted was not authorized by the judge in pursuance of the act of 1855.

But tlie plaintiff contends that this difference in the date of the act of mortgage and the certificate of the authorization of the judge is a mere clerical error. This statement contradicts the plaintiff’s admission in the record. He admitted on the trial that the mortgage he •seeks to enforce was executed on the sixteenth of November, 1866, and that the judge’s authorization was given on the seventeenth of the same month. The fact is also shown by other evidence.

Having failed to show that the debt inured to the benefit of the defendant, and tlie evidence showing otherwise, the plaintiff ought not to recover, the mortgage not having been executed with the authorization of the judge in conformity with act fifteenth of March, 1855.

Judgment affirmed.

Rehearing refused.