author: Eustis, C. J.

text:
    Labourdette v. The First Municipality of New Orleans.
    Where, on counting the votes put into the ballot-box in an election for an officer by a municipal council, it appears that thirteen votes -were put in, when the members present were only entitled to give twelve votes, and that seven were in favor of plaintiff and sis for another person, there is no election.
    APPEAL from the Second District Court of Kew Orleans, Canon, J. On the 11th day of May, 1846, the Council of Municipality No. 1 balloted for a wharfinger. On opening the ballot-box and counting the votes, it appeared that there were; fox' Labourdette, 7 votes; for Du-paly, 0 votos* "Whereupon Labourdette was [proclaimed duly elected wharfinger of the Municipalily No. 1. On the 25th of the same' month, the sureties offered by Labourdette were approved by the Council: and’ on the 4th of June he executed his official bond, which was accepted by the mayor of the city. Labourdette then entered upon the discharge of the duties of wharfinger. JDupaty protested against the election of Labourdette. On the 8th of June, 1846, the Council adopted a resolution, in which they declared the protest of Dupaty well founded. They accordingly pronounced the election oí Labourdette null and void,- and resolved to proceed at their next meeting to the election of a wharfinger for the municipality. The resolution was in the following words: u'Késolu quele Conseil reconnait que le pro*tetdeMr. T’cxin Dupaty contre la nomination- do Mr. Labourdette estfondé;. que' la dite nomination est nolle et non avenue; et que le Conseil procederá, lundi prochain-, á l’éleetion d’un wharfinger pour cette munieipalité.” On the1 15th of June, the day of the next meeting, the' Council elected Dupaty to the1 office of wharfinger of the municipality.
    At the expiration of the month of June, Labourdette applied to the municipal treasurer for the'- payment of a month’s salary. He was answered that there was no salary due him, as he was not the wharfinger of the municipality. On the 2d of July, he wrote to-the Council offering to continue to discharge the duties-of wharfinger. At the- same time' he demanded payment of a month’s salary as wharfinger, and stated that if the Council failed to comply with his demand, he would claim a whole year’s salary. The Council refused to recognise Labourdette as wharfinger of the municipality; But they adopted a resolu.* tion, in which they offered to- pay him three hundred dollars for his services as acting, wharfinger prior to the election of Dupaty. This offer was rejected by Labourdette, and the resolution Was repealed. On the 28th of July, 1846, La' bourdette instituted the present suit, to recover from the municipality one thousand dollars, a year’s salary, upon-the grounds, that the ordinances creating the office of wharfinger and fixing the salary attached thereto, made the office annual, with a yearly salary; that he was legally and duly elected wharfinger,, in Maj1, 1846; and that he had been dismissed from office,, without any cause or" complaint.
    The defendants, in their answer, pleaded a general denial, and alleged that tiny plaintiff had no just cause of action, that they owed him nothing, and that in-electing Dupaty wharfinger'they had duly and justly exercised the powers-conferred- upon them by law. The plaintiff offered in evidence the minutes of the- proceedings of the Council of the First Municipality; the bond executed by plaintiff; and a letter from the latter demanding the payment of bis salary as wharfinger for the first month-, and expressing his readiness to continue to discharge the duties of the office-. The record also contains a bill of exceptions, taken by the defendants to the'rejection of the evidence1 of Genois, the recorder of the First Municipality,- offered to establish the fact that he had voted in the election of Labourdette. This evidence was objected to, on-the grounds : 1st, that the facts attempted to-be proved were not alleged in the pleadings; 2d, that parol proof was inadmissible to 'establish the proceedings of the Louncil; and 3d, that no parol evidence could be offered by defendants, to contradict their own official records. The evidence was rejected.
    There was judgment below for the plaintiff, for 551000, a year’s salary an wharfinger, with interest from judicial demand. The defendants appealed.

      Benjamin and Micou, for tho plaintiff.
    The facts of this cause are simple and uneontested. Tho plaintiff was employed, for a year, at a fixed salary, and was discharged without any fault or complaint urged against him, about one month afterwards. He claims his year’s salary, under the well known legislation and jurisprudence of this State. He relies oil art. 2720 of the Civil Code. Orphan Asylum v. Mississippi Insurance Company, 8 La. 181. Sherburne v. Orleans Cotton Press, 15 La. 360.

      R. Hunt, for the appellants.
    1. The first question which arises in this case is, was Labourdette duly and legally elected wharfinger of Municipality No, 1, on the 11th day of May, 18461 I contend that he was not. The 8th section of the act of March, 1836, amending the acts incorporating the city of New Orleans, vested “ the exclusive right in the councils of each of the municipalities, to appoint all officers thereof.” Bui. & Cur. Dig. 124. The 10th section of the act of March, 1840, still further amending the charter of tho city, provided, that “ thereafter the council of Municipality No. 1, should be composed of twelve members only.” Bui. & Cur. Dig. 132.
    On the 11th of May, 1846, all the members composing the council of tile Municipality No. 1, met, and all voted at the election for a wharfinger. It required a majority to elect. The lex majorispartis is the law of all public councils, elections, &c„ where there is no express provision to the contrary. The majority, here, means the major part of those who are present at a regular corporate meeting. Bacon’s Abr. Title Corporation E. no. 7, of the concurrence required in corporate acts. 2 Kent’s Commentaries, 293. 1 Kyd on porp. 308, 400, 424. Jef. Man. s. 41. Now, the plaintiff has shown by the journals of the council, that there were six votes against him at the balloting on the 11th of May. It follows that there was not a majority of the twelve in his favor, 'l here was therefore no election of a wharfinger. It it true that on counting the ballots, seven votes were found in the ballot box in favor of Labourdette. But these, added to the six against him, made thirteen votes ; thirteen votes given by a “council composed of twelve members only,” each of whom had a right to one vote only 1 The thirteenth vote was clearly an illegal vote, and avoided the election. 2 Kyd on Corp. 7, 8.
    The judge a quo says, that the recorder of the municipality voted for the wharfinger; and that he “voted in the election of all officers, because the 18th article of the supplemental regulations of the council, especially gives him the' right to vote in all elections.” This court has solemnly decided in the case ofthe recorder of the Municipality No. 2, that the recorder is not a member of the council, and that he has no right, under the charter of the city, to vote, except in committee of the whole, or in giving a casting vote. Sec. 5, act of 1805, Bui. & Cur. Dig, 93. Reynolds v. Baldwin, 1. An. R.162. It is not pretended that, at the election of a wharfinger on the 11th of May, 1846, the council resolved itself into a coromitte of the whole, nor that there was a tie in the votes, and that the recorder gave the casting vote. The evidence clearly establishes that the thirteen votes were deposited in the ballot box and counted out, without any reference to a tie or a casting vote. If then the recorder voted, he voted illegally.
    It is well settled, that a presiding or chief officer of a corporation has no powers except those which the charter confers upon him. To enlarge or restrict those powers would be to change the charter. He cannot be vested with a right to vote by a by-law, where the charter does not confer the right. This was the point decided in the case of The King v. J. Ginever, G Durnibrd & East’s Rep. 732-735; and it is sustained by the reasoning of the court in The King v. Bird, 13 East’s Rep. 384; and in all the later cases. The effect of such a by-law, it is plain, would be to constitute a different mode of election from that pointed out by the charter. It is the right of the legislature to erect corporations and prescribe their constitutions. If corporations take upon them to vary their constitutions or charters, they act from that moment without authority. The bylaw, referred to and relied on by the judge in this case, is not a mere regulation of the time and mode of election, but it creates a right of election contrary to the chai-ter. The case amounts to this: The charter provides that the election shall be made by “a council composed of twelve members only,” or by the majority of them voting by ballot. Such is the law given by the only power that could give it. But the council of tho Municipality No. 1, not liking that inode of election, or tho limited and restricted powers conferred upon the recorder, have chosen to alter and enlarge his powers, and to vest him with the right vo*ie as a e0i:DP0Iien<; pork °f the council This is changing and reversing the provisions of the law, and putting the election of efficers into different hands from those in which the legislature chose to place it in the first instance. This cannot be tolerated. If the recorder voted, he acted illegally. His vote was informal, unauthorized; a violation of the charter of the city, and an usurpation of power.
    But there is not a tittle of evidence to showthat the recorder did vote. When the defendants offered to introduce recorder Genois as a witness, for the purpose of proving whether he had voted ov not, the plaintiff, through his counsel, objected to the introduction of the witness, upon the ground, that what was done in the council can only be proved by the journals of the council: and the court-sustained the objection. There is nothing in the record to prove that the recorder voted. “De non existentibus et non apparentibus eadem est ratio,” is a maxim of law as well as of philosophy. In the absence of proof to the contrary we must presume that a public officer did not- act illegally. The thirteenth vote then, the illegal vote which avoided the election, must be regarded as a duplicate vote, accidentally or fraudulently placed in the ballot-box, by some person other than the recorder. The judge a quo says, “ the recorder voted without opposition,” and thence infers that Labourdette’s election was valid. To this it is answered : 1st, There is no evidence, as we have just seen, that the recorder did vote. 2d, -If- the recorder did vote without opposition, the culpable ignorance or negligence of the council in permitting him to do so, cannot, render his illegal-vote legal. And 3d, Although Labourdetle was proclaimed duly elected wharfinger on the 1-lth of May, 1846, yet Lupaty protested against the election; and,-at a subsequent meeting, to wit, on the 8th of June, the municipal council sustained the protest, and set aside the election of Labourdette ; and-, on the 15th of the same month, regularly and duly elected Lupaty wharfinger.
    But the judge below argues that the council, by approving the sureties and accepting the bond of Labourdette, “ cured all irregularities, if any had existed,!’ in the election of Labourdette, and ratified his eleclion.. This is not law. No issuing of commissions, no approval of sureties, no acceptance of bonds, can confer a right to an office, or render an irregular or illegal appointment to office valid. By means of a writ of mandamus or of quo warranto, an usurper or intruder into an office in a corporation may be ousted; or a person who has a right to hold an office in a corporation may be put in possession of it, although the party illegally in office may have been sworn and admitted into it. C. E. arts. 829, 834, 844> 867, 868 etseq. 6 La. 598. How then can the acceptance of a bond from one claiming to be an officer, affect his appointment ?
    Inthe case of the United States v. Maurice et at., Chief Justice Marshall decided that the appointment of Maurice to be an agent of fortifications, by the Secretary of War, was irregular and void ; but at the same time it was held that the bond given- by said Maurice for the faithful discharge of the duties of agent of fortifications, though void as a statutory obligation, was valid as a contract with the United States. 2 Brockenbrough’s Reports, 108-113. In Rex v. The Corporation of Bedjord Level, the court granted a mandamus, upon an affidavit that one of two candidates for a corporate office had obtained a majority, only by means of illegal votes; although the party who had the majority had been sworn and admitted into office. 6 East’s Reports, 356. It is clear that the council of the Municipality No. 1 could only appoint to office in the mode prescribed by the legislature of the State, and that mode is by. ballot.-
    The 8th section of the act of September 1,1812, entitled, “ An act to determine the mode of electing the mayor, recorder and other public officers, necessary for the administration of the police of the city of New Orleans, and for other purposes,” provided as follows,, viz: “ The mayor shall nominate, and by and with the Gonsent of the council shall appoint, to all places which now are,- or may hereafter be created in virtue of the act of incorporation,” &c. Bul. and Curry’s Digest, 100. The 6th section of the act of March 14th, 1816, amendatory of the act of September, 1812, provided that, “ the council shall name by" ballot its clerk and its other private officers, as also the treasurer of the city.” Bui. and Curry’s Digest, 102. The 2d section of the act of March 8th, 1836, enacted that, “all the powers (now) then vested by law in the City Council of New Orleans should appertain to, beinvested in, and be exercised by, the councils of each of the municipalities created by this act, within their respective limits,” &c. Bui. and Curry’s Digest, 122. And the 8th section of the same act of 1836, further provided, “ that the councils of each of said municipalities shall have the exclusive right to appoint all officers thereof.” Bui. and Curry’s Digest, 124. Applying the sound rule of construction laid down by this court in relation to the municipal councils of New Orleans, in the case of Reynolds v. Baldwin, we must consider the statutes of 1816 and 1836, statutes in pari maieria, to be construed with a reference :to each other. C. C. art. 17. Indeed all acts upon the same subject matter are to be taken together as if they were one law, .and should beso construed, that, if it can be prevented, no provision or clause in them shall be void. The acts of 1816 and 1836, therefore, must both stand, so far as they are consistent with each other. Now, the power to elect certain officers, conferred upon the council in 1816, was enlarged and merged in the exclusive “ power granted to the.councils of each of tho municipalities in 1836, to appoint all officers thereof.” But the mode of appointment, to wit, by-ballot, was left unchanged; that mode of appointment or election being most consistent with the constitution and general laws of the State, and with the habits of the people. It is too clear for argument, thatthe.acceptance of Labourdette’s bond, and the approval of his sureties,<could not do away with the necessity of electing him legally, .by ballot, to the office of wharfinger. The law must be observed.
    IÍ. But suppose Lakourdette was duly oleeted wharfinger, the .next point submitted is: That the ■council of Municipality No. 1 had the power to remove ,him from office at will. The council of Municipality No. 1 being the appointing power, have the power to remove from office. 6 La. 5.97, argument. La■bourdette, if he ever was in office, was removed by the resolution of the council, .declaring his election null and void. At all events, the election of Bupaty was, in law and .in fact, a rightful removal of Labourdet.te from ithe office of wharfinger. But this subject requires a.deeper dissertation.
    The municipal corporations of New Orleans, are public corporations, created .for political purposes; and are invested with subordinate .legislative powers, to be exercised for local purposes connected with the public good. These powers, with the exception of those conferred by the constitution of the State, are subject to the control of .the legislature of the State. C. C. arts. 420, 422. 2 Kent’s., Comm. 275. In Edgerton ,v. Municipality No. 3, this court said : “ Constitutions are but the frames of social organisation; they define the objects ,of govern- ' ment, and establish the great powers which the people intend to be permanent. But the establishment of the subordinate powers, &e., is left to the wisdom and .discretion of the legislative department.” 1 An. R. 435. After referring to the institutions which provide for the police of towns, neighborhoods, and for the local government of towns, as instances of the exercise of these subordinate powers by the legislature, the court continues: “ But it is a remarkable fact, and one that belongs to the cause, that the people of Louisiana, in convention assembled, have twice considered the local government of this great metropolis .as too important to be placed among those subordinate institutions, and have recognised the city of New Orleans in its corporate capacity, as entitled te peculiar political powers and privileges ; the political franchises granted to it ,by the constitution stand upon the same ground as any other constitutional powers; and the city of New Orleans and its officers .are, for purposes of police .and good order, permanent functionaries of government. The constitutional powers of the government are all trusts. It has been argued that the Municipality No. 3 is not a civil or political corporation under tho definition given by the Civil Code. We haye already shown that the constitution vests them with .that character. The definition relied on from the english side of one of the .articles of the Code, proves nothing but the ignorance of the person who translated it from the freuch. The city of New Orleans is a public corporation, clothed by the constitution (and laws) with important powers of government.”
    Government is an agency for the benefit of the people. Offices are created, not for the advantage of those who hold them, but for the public good. Officers are agents, mandataries, and trustees, for the people. The office of wharfinger, now under consideration, forms no exception to this principle. In Bacon’s Abridgment, verbo Offices A, it is said that, “ the word officium principally implies a duty, and in the next place the charge of such duty; and that it is a rule that, where one man has to do with another’s affairs against his will and without his leave, that this is an office and he is an officer.” In 2 Brockenbrough’s Rep. 102, Chief Justice Marshall said: “An office is defined to be a public charge or employment, and he who performs the duties of the office is an officer. Although an office is an employment, it does not follow that every employment *s n:n office. But where a duly is a continuing one, defined by rules prescribed by .the government and not by contract, and an individual is appointed by government to perform that duty, which continues, though the person be changed, the charge is an office, and the person who performs the duly is an officer.”
    By the act of 25th of March, 1813, police juries were granted “full power apd authority to appoint ihe constables and other officers necessary to carry into execution the city regulations, and to remove them from office.” Sections 1 and 7. We have seen that by the act of 1836, the councils of the several municipalities have an exclusive right to appoint all officers thereof. The power ■to appoint necessarily implies the power to remove, where there is no express provision to the contrary. Officers appointed for an unlimited period, are removed by a new choice made by the appointing power. The removal fakes place by mere operation of law- 13 Peters, 402. 5 Rob. 402. 3 Story’s Com. .on Const. 338. The power to appoint to offices created by the municipal councils, is vested in them absolutely. The legislature has affixed no term of duration to those offices. In other words, the legislature has made the tenure of ■those offices a tenure at the will of the council, who are authorised to create .and suppress such offices, and to appoint and remove the officers at pleasure. The copncil has no power to change the tenure. A corporation is a mere creature of the law- It has no powers except those conferred upon it by its charter. It must exist and act in the modo ordained by its creator. It can neither rightfully enlarge nor restrict its duties or its powers, but must continue such ns the law constituted it. The unlimited power to appoint to certain offices, and to remove therefrom, was conferred upon the council for the public good. Tho interests of the .community are concerned in preserving this power undiminished. It may be necessary to remove an officer for neglect, or incompetency, without waiting the tedious process of law. It may be sometimes necessary to remove an officer for causes, which, if susceptible of proof at all, can only be proved with great difficulty. It may be necessary to suppress an office. It may be necessity to amalgamate two offices into one. The office of wharfinger, for instance, whose duties are to superintend the police of the wharves, and to regulate the order of mooring vessels, &c., may, perhaps, be beneficially amalgamated with the office of wharfmaster, whose duty it is to collect wharfage dues, &c. "Will it be seriously argued that the council can, by fixing a particular tenure to each of these offices, deprive itself of the power to amalgamate .them for the public good ? That the council can, by those means, diminish its power of accomplishing the ends for which it was created ? That it can thus .emasculate itself? We contend that, as the corporation cannot extend, so it cannot deprive itself of, the powers confided to it for the benefit of the community.
    The pow,er, then, to .appoint to office, and thereby to remove at will, conferred upon the council by the charter of the cily, cannot be abandoned or surrendered, or bartered away, or in any manner impaired by the council. It must be exercised according to the charter, the organic law, the very constitution of the corporation. The President of the United States having been entrusted with certain po wers of appointment, has been held to possess the power of removal; and a question has arisen whether Congress can give any duration .of office in such cases, nor subje.ct to the exercise .of this power of removal. If was held, that the power of removal could not be abridged by legislative action ; ,at least where the power to appoint cannot be delegated by the legislature. 3 Story’s Com. on Const. 390. It seems to be clear and beyond doubt that the municipal council cannot alter the tenure of office .created by the legislature of the State, and cannot surrender or impair its power to remove at will.
    Nor is the council .of Municipality No. 1 justly chargable with any violation of Jaw in this respect, when its acts are fairly and legally interpreted. It is true, ■the second section of the ordinance creating the office of wharfinger, approved •the 11th November, 1834, says, *>the t.erm of duration of said office shall expire .on the fourth Saturday in May next, a period at which said officer shall be annu-r .ally elected.” City Law, 1836, p. 247. But this did not make it an office for ■the year certain ; it only created it an office for th.e year, unless the corporation should determine their pleasure within that time.
    In the case of the Corporation of Bedford Level, already cited, 6 East’s Rep, 356, it appeared that the corporation was empowered to appoint and remove (Officers at will; that it had accordingly elected its officers annually, and, among (Others, a register annually for thirty-seven years; that the minute of the last election stood thus entered on its books: “The corporation then proceeded the election of officers for the year ensuing,” and then followed the list of names of officers. Lord Erslcine said, arguendo : “ This is not to be considered as an appointment for a year certain, for tho members of the corporation are to be elected annually; yet, the officers appointed by them are removable at pleasure, and therefore the appointment may be determined at any time.” Lord Ellen-borough, C. J., said : “ It must be considered as an office for a year, according to the terms of the appointment, unless the corporation should determine their pleasure within that time. That would be the legal effect of the appointment, controlled by the act of parliament.”
    It may be argned, thnt the power to remove from office is vested in the council, on the complaint of the mayor, in the manner prescribed by the act of 1836, sec. 8, viz.: “ The mayor may, by lodging a complaint before any section council, remove forthwith any officer of one municipality ; provided, that in case said officer should be re-elected by said council, then the mayor shall have no right to remove the same officer during the term of service for which said officer shall have been re-elected” (Bul and Cur. p. 124); and by the first section of the act of March, 14, 1839, amending the act of 1836, which provides that any treasurer or comptroller who shall refuse to furnish the mayor with any statements concerning the finances of either of the municipalities, may be removed from office, and shall not be re-appointed, except upon the recommendation of tho mayor, or by four-fifths of the members composing the council (Bul. and Cur. p. 130); and that, therefore, the council alone has no power to remove. We answer, the mode prescribed by the acts of 1836 and 1839, is an additional mode of removal. It does not destroy, nor in any way affect, the right of the council to remove at will.
    It is possible that an officer who may not incur the displeasure of the mayor may be guilty of conduct that ought to forfeit his place. His bad actions may be connived at, or be overlooked, by the mayor, So that the power to remove on the complaint of the mayor, is a supplemental security to the people against tho continuance of improper persons in office. But it is not the only mode of removal. Under the power to appoint to office conferred upon the council, an incumbent may be superseded at any time by a new appointment made by the council. This plain and obvious construction is supported by authorities in analagous cases. The constitution of the United States provides that, “allcivil .officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” It was contended in the Congress of 1789, that this was a particular mode prescribed for removing, and that, inasmuch as there was no other mode directed, .the constitution contemplated only this mode. But it was the opinion of a large majority, that the declaration in the constitution was intended as a supplemental security for the good behaviour of the publie officers, and that there was another mode of removal. Lloyd’s Deb. 352, 451.
    In the case of the Portwardeus of New Orleans, Nicholson .ei al. v. Thompson ,etal., it was contended that the constitution of Louisiana had prescribed the mode by which certain public officers should be removable, in art. 6, sec. 8, ¡(Const, of 1812), and that there was no other mode of removing them. But it was decided that there was another mode of removal, and that these officers might be removed by appointing others in their places. 5 Rob. 367.
    III. But suppose the council had a right to surrender its power of removal at will, and thus to annul the tenure of office created by the act of the legislature, and to substitute a tenure of its own; and suppose the council of 1834 intended to exercise, and did exercise, this right, in passing the ordinance of the 11th .of November, 1834, the question still remains, was the council of 1846 bound by this ordinance ?
    On the 20th of August, 1838, the council of Municipality No. 1 adopted an .ordinance in relation to the officers of the municipality. The second section of that ordinance is in the following words: “ The council of the First Municipality reserves the right of amending, when they shall think it necessary, all ordinances fixing the salaries of the officers of this municipality; and no officer shall have the right of claiming any salary after the date of his removal from office, ¡or suppression of his office, notwithstanding all ordinances contrary to the present.” First MunicipalityLaws, p. 122, sec. 372. It is evident that this ordinance of 1838, resumed for the council, and re-asserted, its power to remove its (Officers at will; and that if there is any tiling in the ordinance of 1834 conflict"ing with this, it is repealed. Leges posteriores priores contrarias abrogant. It cannot, for a moment., be pretended that, the council of 1834 could abridge the powers of the council of 1838.
    jy. rphe judge a quo says, that he has examined closely the effect of the ordinance of 1838 on the present suit, .and that the 2d section as understood by defendants would be .a derogation to article 2720 of the C. C., which, he argues, is the law of this case. And petitioner’s counsel, declaring that they rely .on the well settled jurisprudence of the State, refer to the same article of the Civil Code, and to the decisions thereon in8 La, 18.3; 12 La- 67; and 15 La. 360.
    Article 2720 of the Civil Code is as follows ■: “ If, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has'expired, he shall be bound to pay to such laborer the whole of the salaries which he would haye been entitled to receive, had the full term of his services arrived.” The decisions referred to simply show, that the late Supreme Court of this State considered the case of a lawyer employed .by a private’eorporation by .the year, and the case of a superintendent and engineer of a cot,ton press, hired for a certain time, as falling within the equity and spirit of thjs article, and analagous to the case therein provided for. But we are at a loss to conjecture by what process of reasoning the learned judge, and the able counsel of the petitioner, can co.me to the conclusion that the article of the Civil Code,.and the decisions quoted by them, are applicable to the present case ; a case in which the council, by an express and public ordinance, reserved to themselves the right of determining at will the office to which plaintiff was elected, of suppressing the same, or of removing from offi.ee any incumbent thereof, without rendering themselves liable for any salary after the date of such removal.
    But there is another view of this matter to which the attention of the court is respectfully invited. Ampng the excellencies of our Civil C.ode, its order, its lucid method, has been deemed worthy of high commendation. Article 2720 will be found und.er the title of Letting and Hiring, which is subdivided into two species : 1st, .the letting out of things; and 2d, the letting out of labor and industry. C. C. 2643.
    Now, labor may be lef out in three wavs. 1st. Laborers m,ay hire their services to other persons. 2d. Carriers and watermen may hire.out their services. And 3d. "Workmen may hire out their labor to make buildings or other works. Article 2720 falls under the head of the hiring of servants and workmen, and is intended to apply to workmen employed in manufactures or on plantations, as is evident from the preceding article, 2719, and from the language in the french text of article 2720. It is unnecessary tó express any opinion as to the correctness of the supposed analogy between the case provided for in that article, and the cases decided by the late Supreme Court. But the political character of the municipal corporation, the nature and duties of its public officers, and the general policy of the law and government, which hav.e already been developed, show conclusively that the plaintiff has no right of action against the defendants in this case, and that article 2720 is wholly inapplicable. When the plaintiff accepted office, he accepted it on the express condition that he should not have the right of claiming any salary after the date of his removal from office. If a corporate officer is disturbed in his office, or is improperly ousted by an usurper, or is shut out from his office, the law gives him a remedy by quo warranto, by mandamus, or by an .action to recover his fees ajid salaries from any one who improperly receives them. But this is only in case he has a clear legal right to office. The idea that he can recover a salary from the public when he performs no duty, and that when he is legally removed by the duo exercise of the appointing power, in substituting a successor, he is entitled to a continuation of his salary, appears to be little short of an absurdity.
    The amount involved in this .case is comparatively of little importance, but the principles upon which it depends are of high public concern. They comprise questions concerning the due and proper mode of .electing public officers, the power of the municipality over its officers, and the right of removal, with all which the public welfare is intimately blended.
    We trust that we have shown that the election of Labourdette, on the 11th of May, 1846, was irregular and void. That this irregularity was not cured by the acceptance of his official bond, on the 4th of June. That the election of Dwpaty, on the 15th of June, was a rightful exercise of power by the council. That the council of the Municipality No. 1, being the appointing power, hays the power to remove from office. That this power of removal is essential to til's public welfare, and cannot be impaired or surrendered by the council. That the ordinance of 1834,- ón which the plaintiff relies, did not create the office of wharfinger an office for' a year certain, but left it determinable at the will of the council. That the ordinance of 1834, even if it did create the office for a year certain, was repealed by the ordinance of August 20th, 1838, by which the council expressly resumed to itself the right of removing any of its officers, and stipulated that no officer should have any right of claiming salary after the daté of his removal from office. And finally, that article 2720 of the Civil Code, in relation to laborers hired for a definite period of time, is inapplicable to public officers, holding office at the will of the government,- whether mhnicipal, state,, or national.

      Mórel, on the Same side.
   The judgment of the court was pronounced by

Eustis, C. J.

This case is presented with great ability in the' argument of the counsel for the defendants; and concurring with him in the view which he has taken of the illegality of the election' of the plaintiff as wharfinger óf the' Municipality, we think the judge of the District Court erred in deciding against the defendants.

It is unnecessary to decide on the question, concerning the authority of the municipal appointing power to remove from office.

Any claim which the plaintiff may have against the' defendants for services rendered, is to be considered as reserved.

It is therefore' ordered that the judgment appealed from be reversed, and-judgment is rendered for the defendants, with costs in both courts.


source: Caselaw Access Project

author: Swdeii, I.

license: Public Domain

text:
    Robert v. His Creditors.
    The question as to which of two creditors of an insolvent is entitled to bo paid by preference oitt of the proceeds of property sold by the syndic, must be litigated on the filing of a tablean of distribution; the matter cannot be determined by an opposition to an account filed by the syndic.
    Appeal from the District Court of St. Mary, VoorMes, J.

      Maskell, for the appellant. Dwight, syndic, pro se.

   The judgment of the court was pronounced by

Swdeii, I.

'The litigation' presented by this record appears to us premature and informal. The principal contest between Phcebe Wooster, the opponent, and the syndic, relates to the price of certain real estate of the insolvent, which the syndic has sold, but left the price in the hands of the purchaser, the insolvent’s wife, who claimed to be a first mortgage creditor. The opponent claims to be a creditor upon the same proceeds by superior mortgage, and asks a personal judgment against the syndic. This opposition was made upon the filing of an account by the syndic.

The' proper occasion for the litigation of these questions would be on a tableau of distribution, which the syndic should immediately file. Upon such a tableau the contest between these mortgagees can be determined. If the purchaser, the insolvent’s wife, should be adjudged to be the first mortgage creditor, she will be entitled to retain the proceeds subject to such dedüction as may be lawful and necessary for privileged expenses. If, on the contrary, the present opponet, Phoebe Wooster, should establish a superior right, the purchaser would be bound to pay the price. Whether there has been Laches on the part of the syndic, to the injury of the creditors, is a question upon which we have not at present the means of expressing an opinion, and which is reserved for future consideration. See Rodriguez v. Dubertrand, 1 Robinson, 538. Goodale v. His Creditors, 8 La. 302.

There are some small items, in the syndic’s account, of payments made by him; the propriety of these payments can also- be considered when the tableau is filed. The proper course to be pursued by the appellant is, to- compel the filing of a tableau ®f distribution. Judgment affirmed.

       The ¡¡pponent appoaled from a judgment in favor of the Syndic, and dismissing her opposition. II.


author: Slidem, J.

text:
    Palmer v. Dinn.
    ‘r'be' evidence of a' single witness is sufficient, in an action by the bolder against the maker of a note for an amount exceeding five hundred dollars, to defeat a recovery on the ground that plaintiff is a fraudulent holder. Art. 2257 of the Civil- Code is inapplicable to such a case, which must be governed by the’ general rules of evidence.
    from the Second District Court of New Orleans, Canon, J.

      Denis, for the appellant. Roselins, for the defendant.
   The judgment of the court was pronounced by

Slidem, J.

The defendant, who is sued as the’ maker of a promissory

note, sets up the defence of fraud against the plaintiff,- alleging that this, with other notes, had been put by him into the hands of plaintiff as a broker to obtain the discount of them, and that the plaintiff has no title as holder for himself.-

The case was tried by a jury, who found- a verdict for the defendant. The jury was the proper judge of the credibility of the witness who established the defence. The only point which we have to consider is- one of law, raised by the plaintiff’s counsel. The demand of the plaintiff was for a sum- exceeding $500, at the date of the suit; the defence rests on the testimony of a single' witness. It is said that the facts constituting the defence should have been-proved by two witnesses, or by one witness and corroborating circumstances ; and the counsel relies on article 2257 of the Civil Code. We consider that article inapplicable. It prescribes the amount of testimony necessary to establish-a liability in cases of contracts for the payment of money, and agreements re^ lative to personal property, involving a pecuniary amount of $500. Here the effort is to escape from a liability — to defend, and not to attack. The testimony defeats the apparent title of the plaintiff as the holder oí’ a written instruments There might have been some policy in requiring as strong- testimony to sustain-such a defence, as to establish a liability; but the legislature has not so declared.The case is not within that article of the Code, and falls under the general-rules of evidence. We find nothing either in our own written law, or in the law merchant, whichforbids a defence of fraud in the holder of a promissory note to be proved by a single witness. If the jury believed the witness, the’ law permitted them to decido the issue on his testimony.

Judgment affirmed.


text:
    Dimond v. Petit.
    In the absence of any evidence of the recognition by the government of the United States of it state of war,-as existing between a foreign government and an insurgent próvince, the rights of the latter as a belligerent cannot be admitted. Per Curiam: *íhe proceedings of courts in such cases depend entirely on the action of the general government.
    One concerned in capturing an American vessel under color of the insurgent military authority of a foreign province, in the absence of proof of the recognition by the government of the United States of a state of war as existing between the insurgent province and the power to which it belonged, willb'e responsible to' the owner of the' vessel for thé' dam’age sustained by the capture.
    Appeal from the District Court of the First District, Buchanan, J.-

      Preston, for the plaintiff. Benjamin and Micou, for the appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

The Margaret Anh, an American vessel belonging to the' plaintiff, with a full cargo of provisions, was captured by á gun-boat on the coast of Mexico, in March, 1843, and taken to Campeachy. She was boímd fot La.guna, about a hundred miles distant from Campeachy; and, the persons in authority in the latter place refusing to permit her to proceed to her port of destination,- her cargo was landed and sold, the voyage broken up, and the vessel returned empty to New Orleans. The defendant, an American citizen, was one of the captors; indeed, from the evidence, we should infer him to have been the leader of them, and he is sued for damages by the plaintiff, who was the' owner of the vessel and of one-half of the cargo. The district judge gave judgment for $1,640, with interest from judicial demand, and costs, and the defendant has appealed.

In fixing the amount of damages we cannot be guided by the allegations of the petition, but must follow the evidence adduced on the trial without objection. We have not been able to find any thing which would authorise us to give the plaintiff a larger sum than he has himself sworn to be due as damages, to wit, the sum of $1,000.

This capture was made under c'olor of an insurgent military authority at Campeachy, in the Mexican province of Yucatan. We directed the attention of counsel to the necessity of furnishing the court with information as to the course taken by the government of the United States in relation to the belligerent rights of the province of Yucatan, which is said to have been in a state' of rebellion against the republic of Mexico, at the time of the capture. No justification has been exhibited to us for this outrage upon our flag, and the capture can be viewed in no other light by the court than as an act of lawless depredation.

It is well settled that the proceedings of courts in- cases qf this kind, depend entirely on the action of the general government. There being no evidence that a state of war was recognised by our government as existing between this insurgent power and Mexico, the rights of the former'as a belligerent cannot be admitted by this court. United States v. Palmer, 3 Wheaton 635.

The judgment of the District Court is thereforo reversed, and judgment entered for the plaintiff against the defendant, for the sum of $1,000; the plaiuLiff paying the cost of this appeal, and the defendant those of the District Court.


author: Rost, J.

text:
    Hogan, Curatrix, v. Thompson.
    Tlie validity of a decree appointing a curatrix of a vacant succession, cannot bo enquired into collaterally.
    It-is the duty of the curatrix of a vacant succession to sell The moveable effects belonging to it at once, whether there bo any debts due by the succession or not.
    Appeal from tho Court of Probates of New Orleans, Bermudez, J.

      Gaiennié, for the plaintiff. Livingston, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, iu the capacity of curatrix of the vacant succession-of- Andrew Thompson, her husband, has instituted this action for the partition-of certain moveable effects, held'in common by the deceased and the defendant. The court below, upon due proof that the property could not be conveniently divided in kind, ordered a licitation for- cash. From that decree the defendant has appealed.

The grounds upon which he asks a-'reversal of the judgment, are untenable. Tho decree of- the court appointing the plaintiff curatrix, stands unreversed and unappealed from. We cannot enquire collaterally into its validity, or the correctness of the reasons which induced the decision of the judge. The' plaintiff administers the succession for the benefit of the creditors and heirs, whoever they be. If there are no debts, the heirs, if present or represented, may take possession of the succession at any time ; but until they do, it is her duty to administer it according to law; and the first aot of her administration-must be, the sale of the moveable effects belonging to the succession.

Judgment affirmed.


text:
    The First Municipality v. Pease et al.
    In appeals from decisions of justices of the peace, incases involving the constitutionality or" legality of a municipal ordinance imposing any tax or impost, the power of the court is* limited to the question of the constitutionality or legality of the 'ordinance. Const, art. 63. •
    The General Council of the city of New Orleans are authorised to establish by ordinance an uniform rate of whavfage, to be paid by ships, steamers, and other vessels,-moored in front of any part of the city. The authority to impose a wharfage, or charge on vessels moored in the port of New Orleans, to defray the expenses of the erection and maintenance of wharves and other works necessary for the loading and unloading of vessels, and to secure* a-convenient access to them, is not inconsistent with any law of the State or of the United States, nor with the 8th or 10th sections of the first art. of- the constitution of the United-States.
    Where a municipal corporation is anthorisedto impose a wharfage charge, as* a compensation-for keeping the wharves in a proper condition for the safe and expeditious shipping andlaudingof merchandise, a court will not undertake to fix any limit to the amount which the municipal authorities may exact for that purpose. The question of the extent to wliieh this right may be exercised, is purely administrative.
    APPEAL from the Parish Court of New Orleans, Maurian, J. Thefactflof this case are slated in the opinion of the court, infra.

      Roselius, for the plaintiffs,
    I. The ordinance is legal. The SOtli section of the act of 1836, dividing the city into three municipalities, provides: “ The following are declared to be the powers of the city counsel thus constituted, and all other powers shall be vested in the councils of the separate municipalities : 1st. To fix a uniform rate of wharfage, to be paid by ships, steamboats, and other crafts, mooring in .front of all parts of the city.”
    So far, therefore, as the State legislation is concerned, the power has been .expressly delegated to the General Council. This law, .however, is not the origin of the right to claim wharfage. It is well known that, by an ordinance •of O’Reilly, enacted shortly after Spain took possession of Louisiana, this right was recognised; and it has never been seriously questioned since that period, until the institution of this suit. In nearly all the other seaports in the Union, wharfage is paid to private individuals, who own the wharves, and keep them in repair.
    II. The ordinance is not contrary to the constitution of the United States, nor to any law of Congress. The constitutional provisions relied on by defendants are: Art. 1, sec. 8, § 1. “The congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts, and provide for the •common defence and general welfare, of the United States.”
    Also, § 3 of the same article and section: “ To .regulate .commerce with foreign nations, and among the several States, and with the Indian tribes.”
    And the same-article, sec. 9, ;§ 5 : “ No tax or duty shall be laid on articles .exported from any State.”
    Finally, the same article, sec. 10, § 2: “ No State shall, withoutthe consent •of the Congress, lay any imposts, or duties, on imports and exports, except what may be absolutely necessary for executing its inspection laws. No State shall, without the consent of Congress, lay any duty of tonnage.”
    The wharfage claimed is either a tax, impost, or duty, in the .proper and legal acceptation of these terms ? The Supreme .Court of Louisiana, in 'the case ,of The State v. The New Orleans Navigation Company, 11 Mart. 324, say : “These words, we think, must be confined to the idoa they commonly .and ordinarily present to the mind — exactions to fill the public coffers for the payment of the debts, and the promotion of the general welfare of the country; not a retribution provided to defray the expenses of building bridges, erecting causeways, or removing obstructions in a water course, to be paid by such individuals only who enjoy the advantage of such labor and expense.” See also 11 Johnson, 80. Story on the Constitution, vol 2, p. 419, § 947, et seq.

    In Petersdorff’s Abridgment, vol. 15, p. 393, we find the following definition, or rattier description, of a whaif: “ A wharf is a convenient place for landing, warehousing, and shipping of goods. Natural ground on the bank of a canal, though used for the pui'pose of a wharf, is not a wharf; neither is the sea-beach. Rex v. Regent's Canal Company. The term, in its ordinary and legal import, means a place built or constructed for the purpose of loading and unloading goods, and for the use of which wharfage, or compensation, is paid to the owner.” The word wharfage is also used to mean the money paid by vessels for the privilege of mooring, or making themselves fast, at a wharf; in some of the cities of the Union, this is called dockage. Wharfage is, therefore, a remuneration or compensation for the use of a wharf, and can with no propriety of language be confounded with a tax, duty or impost.
    The collection of wharfage is not a violation of the constitutional provision which gives Congress the power to regulate commerce. See 2 Peters, 252. 9 Wheaton, 195. 12 lb. 446. 6 Peters, 315. 11 lb. 143. 9 Wheaton, 235. 10 Peters, 662.

      Elmore and W. W. King, for the appellants.
    The ordinance of the city council of May 23d, 1843, imposing a tax upon vessels landing or mooring with-n the incorporated limits of the port, is void. The power conferred upon the city by the act of 1836, s. 20 (B. & C.’s Dig. p. 127), does not, by its terms, grant a new power. It was merely intended to regulate the manner of exercising a power previously in existence. The only power previously íd existence was the right to receive the old Spanish dues prescribed by the act of incorporation in 1805. These dues were very small in comparison with the taxes levied by the ordinance of 1843.
    The power conferred by the act of 1836, was repealed by the act of 1843, p. 55 of Acts. The right of vessels to land or moor on the banks of the river, is secured to them. C. C. 442, 443, 446, 448. Act of Congress of 1812, admitfciug Louisiana into the Union. Also Ord. of 1811 of tho convention of Louisiana. The act of 1843 deprived the city of the power of laying a wliarfaS®tax'
    The ci1y council must regulate the port so as to admit steamboats to moor at the levée, between certain points. Act of 1835. City Laws, pp. 493, 425, The ordinance is in contravention of theso laws, for it imposes a most oppressive tax upon steamboats, for the enjoyment of this right. The. ordinance is not authorised by the act of 1836, because it does not import on its face to be a wharfage tax. It is a tax for mooring or landing within the incorporated limits of the port of New Orleans.
    The port of New Orleans extends from the line of the parish of Jefferson to a point' three miles below the centre of the public square, called the Place d’Armes, taking in the whole width of the river and both shores. In other words, a section of the river of about five mijes in extent. See Act of 1821, Moreau’s Dig. p.259. Acts 1834, p. 106. Steamboats are liable to the tax, whether they land on this, or on the other, side of the river. Whethe'r they moor to a wharf or not. There are no wharves on more than half of the two shores, They are liable whether they discharge a cargo or not. The ordinance calls these taxes, Ievóe taxes. The lovée and the wharves are very distinct things. The money received from these taxes goes into the public coffers, and is not; appropriated for the benefit of the wharves. The tax in amount is greatly beyond a fair compensation for the use of the wharves.
    These considerations show that the tax is not a wharfage tax, nor a remuneration for the use of the wharves in dichaiging and receiving cargoes. It is not then a tax warranted by the law of 1836. It is not pretended that there is any other law. The tax is imposed by the city upon properly not within the limits of the city. The port of New Orleans is not within the incorporated limits of the city. Act of 1836, B. & C.’s Dig. p. 121. Act of 1812, Martin’s Dig. vol. 2, p. 288. Act of 1818, City Laws, p. 317. Act of 1819, City Laws, p. 319. 5 La. 466. 17 La. 576. C. C. arts. 444, 446, 448. Consequently tho city has no right to lay the tax, under any general authority or power conferred upon it.
    The ordinance is void because it is contrary to the 6th section of the constitution of the United States, which prohibits any State from hnposing any tonnage duty. The charge imposed by the ordinance is essentially a tonnage duty. States which have imposed such duties, have first obtained permission from Congress. See Gordon’s Dig. no. 2265 and note. Georgia, South Carolina, and Maryland have obtained such licences, by temporary acts. It is contrary to art. 1, sec. 8, of the constitution of the United States,'which gives Congress the right to regulate commerce among the several States. This power in Congress is exclusive, and embraces the regulation of navigation. Gibbons v. Ogden, 9 Wheat. 186 el seq. United States v. Coombs, 12 Peters, 72. Brown v. State pf Maryland, 12 Wheat. 419. Act of Congress of 1812, admitting Louisiana info the Union. A tax upon the importer is a tax upon the goods. 12 Wheat. 419. A fortiori, a tax upon the ship, is a tax upon the goods.
    It is contrary to art. 1, sec. 10, of the constitution of the United States, which forbids any State laying imposts or duties on commerce, or any duty on tonnage. The ordinance lays a duty on the internal commerce of the States, 12 Wheat. 419. 9 lb. 186, et seq.

    It is in contravention of the acts for the admission of Louisiana into the Union, See act of Congress of 20th Feb. 1811, and 8lh April, 1812. Act of Louisiana Convention. 11 Mart. 324, note to decision.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action for the recovery of the sum of $82, alleged to be due for the wharfage of the steamer Sultana. It is before us on an appeal from the late Parish Court of New Orleans, which rendered judgment for the plaintiffs, in affirnftng the judgment rendered by a justice of the peace of New Orleans, before whom the suit was originally brought. Under the constitution, the power of this court in appeals of this kind is limited to the legality and constitutionality of the ordinance, under which the claim of the plaintiffs is sought t° be enforced. The Third Municipality v. Blanc, 1 Annual Rep. 385.

I. The General Council of New Orleans has power to fix one uniform rate of wharfage, to be paid by ships, steamers, and other water-craft, mooring in front of any portion of the city. Act of 1836, § 20. So far as the authority of the State is concerned, the plaintiffs have aright to exact wharfage from a steamer moored in front of the municipality within its limits; and our opinion is that, so far as the ordinance establishes an uniform rate of wharfage, it is not in violation of any law of the State or of the United States.

II. But it is alleged to be in violation of the constitution of the United States in this, that it is contrary to the 8th section of the first article of that instrument, which gives Congress the power to regulate commerce with foreign nations,and and among the several States* and with the Indian tribes, and to lay and collect taxes, duties, imposts and excises; and conflicts with the tenth section of the same article, which provides that no State shall, without the consent of Congress, lay any duties on imports or exports, except what may be absolutely necessary for executing its inspection laws, and that no State shall lay any duty of tonnage without the consent of Congress.

There is no charge authorised by law for the landing or shipping of goods, or. for any other use of the land or fixtures adjacent to the water; and the wharf-age claimed by the plaintiffs is placed on the ground of its being a. compensation for the artificial facilities which are afforded to vessels, in mooring them in safety, in loading or unloading their cargoes, and in furnishing an easy and convenient access to them. The landing and shipment of the bulky produce of this mart, is effected by means of stages which extend from the vessel to the shore. In some parts of the port there are floating bridges between them, and without the means provided for that purpose the port, as aplace for shipping, could only be used at a very advanced rate of expense over its present rates, and accompanied with such inconvenience and loss of time, that it may surely be assumed that the works, which the municipality have caused to be constructed with their apparatus, may be considered necessary and useful. This, as a fact, we do not understand to be drawn in question, and we think that it may be assumed that, the exaction of wharfage, as a fair remuneration for the expenses thus incurred, and those which are probably to continue for the same object, is, under no view that can be taken, contrary to the letter or spirit of the constitution of the United States.

But it is contended by the learned counsel, that the amount of the wharfage exacted under this ordinance, is entirely out of proportion to any such object; that it is a tax levied on the .commerce of the country, for the general benefit of the inhabitants of New Orleans; that it is a source of revenue and profit to them; and that the form in which it is imposed is a mere pretence to cover what is in fact an unconstitutional tax or impost, levied on objects which neither the municipal nor State authority has the power to reach or interfere with.

In the present case, it is in evidence that the steamer Sultana, a licensed coasting yessel of the United States, of upwards of five hundred tons burthen, was employed in the Vicksburg and intermediate trade with this port; that she made one voyage a week, between the two places; and that the sum of $82 is exacted for wharfage, on her mooring in any part of the limits of the municipality. It is urged that the aggregate thus exacted in the course of a season is such a tax upon the navigation, foreign and internal, as to be a palpable and flagrant violation of the constitution of the United States.

"We consider it competent for the legislature to authorise the receipt of wharfage, as a .compensation or remuneration for keeping the bank of the river suek a ctm¿qt;on &3 t0 ensure the safe and expeditious shipment and landing ¡of merchandise and produce, by the construction of a spacious and convenient levée and quay suitable for a mart like this, and for projecting wharves with ■necessary appendant machinery.. Wharfage is exacted, it is believed, in all the maritime ports of the United States; its exaction has never been considered unlawful, nor in derogation .of any right secured under ,the constitution of the United States, s.o that the question before us is one of degree. Wharfage may lawfully b.e demanded; but beyond a reasonable renunjeration — a compensation for an equivalent — it is said to be unconstitutional.

; There are statements in evidence by which it appears that, from June, 1836, ,to February, 1845, the expenses .of the port fell short .of the receipts from iwharfage, by $43,9.39; and from February 28th, 1845, to the 31st March, 1846, 'though the statements are not definite, it is apparent that the receipts far ex-ceededthe expenditures. The gross receipts from that source were $74,000, and the “fournitures 'diversas pour leport, pavag.e, et autres travaux de reparation pour la municipaliié,” are put down at “a peu pres” $61,120. On the other hand it is proved, that on account of the abrasion of the soil on tho border of the river, which takes place on the fall of the water in the summer, the bridges are liable to b.e destroyed; that the wharves between Custom-house street and Hospital, were destroyed four times in five years, in 1840, 1841, 1843, 1844. It is also contended that the statements do not contain all the charges that ought to be made to the account of the port, and that the receipts from wharfage do not exceed the expenditures chargeable to the port expenses direct, and those incidental, and a reasonable sum to meet those caused by the destruction and injury of the wharves and the repairs of the port, according to the usual action of the river upon the bank and battufe in front of it, on which some of the wharves are constructed.

The matter we are thus called to decide is purely administrative. We are called upon to fix the sum which the municipality may receive as wharfage; and to refuse to award any sum beyond what we may deem lawful, as a fair remuneration for their port expenses, actual, prospective, and contingent. There could scarcely be a stronger illustration than this case offers, of the wisdom and truth of the dictum of Chief Justice Marshal, in the case of McCulloh v. The State of Maryland, 12 Wheaton, 430: “We are not driven,” says he, “to the perplexing enquiry, so unfit for the judicial department, whatáegree of taxation is the legitimate use, and what degree may amount to the abuse, of the power.” The functions of that department are, under the true theory of our government, confined to those cases in which its authority cannot be questioned, and its action will be consequently effectual. Second Municipality v. Duncan, ante. p. 182.

If the court were to redueo the amount as asked by the defendants, an accident might render its judgment not only contradictory to the very principle on which it would be founded, but its execution an unwarrantable interference with things over^which the municipal government must necessarily have the control.

' The government of each municipality is charged with the administration and police of its portion of the port, the preservation of the levée, as well as with its own financial affairs. The authority delegated to them for the former object is a portion of tlie political power of the State, and its exercise appertains to the public order, and involves the safety of the city in certain seasons of the year. The x-easoning of the Chief Justice in the ease cited, may be applied to a certain extent to the case under consideration. The government of the' municipality has determined that the rates of wharfage are due,- as such; from this the State has not dissented. The responsibility of the act rests with the municipal government. The' consequence of the intexference of the judicial power in the details of its finances, can be readily foreseen. If it be appealed to in cases in which the amount of its imposts, taxes, or dues, are drawn in question, and should exex-cise its authority in matters of detail, or those which may be considered as administrative, it is obvious that the administration of municipal-affairs must be ax-rested, unless the judicial power took upon itself the responsibility of conducting them, and provided against the consequences of its decrees.

It would seem, therefore, to be true that, within a certain range, which however it is not easy to define or limit, where there is an acknowledged- right which is necessary for the perfox-mance of a public function and which is liable to abuse, that the measure of its use and abuse is rather a matter of legislative discretion than for judicial decision ; where thex-e is no right, however small the burden or laudable the purpose to which it is applied,-the judiciax-y must interfere. If this wharfage is a tax on commerce',- or on imports or exports, it is unconstitutional, however small the amount. If it be not per se unconstitutional, the unconstitutionality depending according to the argument on the unreasonableness of the amount, the action of the judiciax-y is bx-ought directly in conflict with the municipal administrative power on an administrative question, over which, it must be conceded, that the city govex-nment is called upon to exex-cise to a cex-tain extent disex-etionary power. The judicial aetion is put forth in favor of absolute, positive, legal rights; they must be separated by a distinct line of demax-cation fx-om those which are subject to the action of other branches of the government, the intex-fex-ence with which must be avoided. Such is, as we understand it, the theox-y of our sytem; and upon the observance of the principle of leaving to each branch of the government the performance of the functions with which it is invested, its success and durability depends.

The force of the argument addressed to us presupposes that a proper case has been made outfox' the judicial powex-. The impolicy of this ordinance, the disastrous consequences of imposing burthens on commerce, and the inevitable effect of such a coux'se of exaction on the interests of the State and city, may be as serious and as certain as is contended for on the part of the defendants.

We ax-e far fx-om believing that the chax-ges imposed by the ordinance, are consistent with a proper and considerate view of those interests. The remedy for this can be had elsewhex-e than fx-om the judicial-power. With mox-e enlarged views of public policy, the electox-s may apply at once a x-emedy to the evil; or the legislature itself may confine the exactions of the municipalities within fixed and reasonable limits. The States of the Union bordering on the Waters of this great valley, and the great shipping interest of the north, whose interests are most affected by our port chax-ges, will be sure, in case of necessity’, to call into activity for their px-otection the power of Congress to regulate eommei-ce.

It cannot be believed that, if it were attempted, a State holding the great entrance from the ocean tolai’ge and populous internal States and cities, would be permitted, under our present political organisation, to embarrass foreign and doinestic trade by unreasonable and unnecessary burthens; which would be alike inconsistent with our settled policy, the principles of our government, and the laws of nations, as we understand them. 1 Kent’s Com. 35. Wheaton’s Law of Nations, p. 508.

But the sole question with us in this point is,- whether, under the evidence, it is competent for the judicial power to declare the ordinance unconstitutional 1 We are under the necessity of saying'that, we have nothing before us on which we can determine that the wharfage claimed by the plaintiff is contrary to the constitution of the United States, by reason of its amount.

III. It is contended by the defendants that the ordinance is in contravention of the acts of Congress, for the admission of Louisiana into the Union, of February, 1811, and the 8th of April, 1812. The reasons for which we have considered the ordinance as not conflicting with the constitution of the United States, apply to the acts referred to, giving them all the effeet which the defendants assign to them.

It is the wish of the defendants that the opinion of the Supreme Court of the' United States should be had on the subject involved in this suit, in which we cordially acquiesce. We have therefore confined- our decision exclusively to the propositions submitted and argued, without presenting many obvious considerations in support of our views, which result from the constitutional jurisprudence of the United States, as established by the decisions of that tribunal.

Judgment affirmed*


text:
    Lanata v. Planas et al.
    In an action by a creditor to annul a contract made in fraud of his rights, the record of an action in which he had obtained a judgment against the original debtor is admissible in evidence as prima facie evidence of the claim, though the defendant was not a party to the' action; but the latter may contest tho demand of the plaintiff, though liquidated by a judgment, in the same manner that the debtor might have done before the judgment; and- it is1 his duty to do so. C. C. 1971. Per Curiam: The cases in which-it has been held that the burthen of proof is on the judgment creditor, are those in which wives have obtained judgments against their husbands. Tliey are exceptions to tho general rule that, whoever alleges fraud' must prove if.
    Appeal from the District Court of the First District, Buchanan, J.

      La-tour and Roselius, for the plaintiff. Dufour, for the appellants.
   The judgment of the court was pron'ounced by

Rost, J.

This is a revocatory action. The plaintiff seeks to avoid three acts of mortgage, and an act of sale, from Ramon Planas to the other defendant, on the ground that they were executed in fraud of his- rights as a creditor of Planas, and for the purpose of giving an unjust preference. The answer of Presas denies the claim of the plaintiff, and alleges collusion and fraud between him and Planas. There was a judgment in favor of the plaintiff, and the defendant Presas, for himself and Francisco Alzina, another party interested,appealed.

On the trial below, the plaintiff offered in evidence two records of the court from which this appeal is brought up, in order to prove the claims upon which this action is founded. Presas opposed the introduction of those records on the following grounds : 1st. That one of the judgments obtained in those cases was rendered on the confession of Ramon Planas, made in open court, after Planas had filed an answer claiming a large sum in reconvention. 2d. That the defondant, Presas, has pleaded fraud and collusion between Planas and Lanata, whom he alleges are combined against him. 3d. That he was not a party to those suits, and that he knows the allegations of Planas and his answers tó be true. The court admitted the records and judgments as prima facie evidence of the claims, and the defendant Presas took a bill of exceptions.

We concur in the view taken by the judge in relation to this evidence. Under art. 1971 of the Civil Code the presumption resulting from those judgments was not, in relation to Presas, juris et cle jure. He might controvert the demand of the plaintiff, although liquidated by' a judgment, in the same manner that the debtor might have done before the judgment; but it was his duty to do so. He avers that the allegations of Planas in his answers could be proved. It was incumbent upon him to prove them. The cases in which it has been-held, that the burthen of proof was on the judgment creditor, were cases in which wives had obtained judgments against their husbands; they form exceptions to the general rule, that whoever alleges fraud must prove it. Moreover, it is clearly shown, that Presas was apprised of the claims of the plaintiff, and that it was for the purpose of defeating them that the mortgages and the sale' complained of were made.

On the merits, We concur fully with the court below'. The evidence in support of the plaintiff’s allegations is as full and satisfactory as can be desired; and the conduct of Presas throughout those transactions cannot be too severely censured. Judgment affirmed.


text:
    Labenelle v. Deconet.
    One Who purchased Certain lots, jointly with defendant, executing his notes With htíí in solido for the price, and who afterwards paid the notes at maturity, cannot recover from the latter her proportion of the notes so paid, where the evidence shows that defendant had been debauched by the plaintiff, and was living in concubinage With him at the time of the payment, which was made as a reparation for the injury he had done to her.
    Appeal from the First District Court of New Orleans, Preston, 3.

      Rousseau, Robert and Collens, for the appellant,
    cited C. P. 19. 10 Duranton, pp. 260, 267 etseq. 2 Kent’s Comm. p. 467. 1 Lib. Law and Equity, p. 180. Kinne’s Compend. vol..l, p. 221, § 7, and authorities cited.

      Train, for the defendant,
    cited 10 La. 204. 1 An. Rep. 121,- 230, 232. 6
    Mart. 695. 19 La. 235. 10 La. 167. Pothier, Oblig. vol. 2, pp. 34, 84, 123, 129,370. 15 Sirey, parti, p. 32. C. C. 1945-7, 1951, 2195. .20 Sirey, 1, 420. 4 Sirey, 2, 543. Dalloz, 5, 253, 248. 22 Sirey, 2, 223. 25 Sirey, 2, 136. 1 Sirey, 2,13. 3 Maulé and Selwyn, p. 463. Comyn on Contracts, p, 29. 1 Ann. Rep. 69, 177,194.
   The judgment of the court was pronounced by

Rost, J.

The defendant was hired as a house' servant by the plaintiff and his partner, at the rate of S?12 per month. After softie time, the plaintiff, abusing her dependent situation, seduced her, and she' became pregnant. When fav advanced in pregnancy she ceased to receive wages, and continued for several'yeavs'to live with him without any stipulated compensation, save the promise he made to her to give her some property. This occurred before 1840. In the months of Juiy and November of that year, the plaintiff and defendant purchased jointly four suburban building lots, of small value : a part of the pi'ice was paid in cash, and for the' balance they gave their notes, in sólido. The plaintiff took certified copies of the acts of sale, and delivered them to the defendant, representing them to-her as'the muniments of her title. At maturity he foot up all the notes, and lived five years with the defendant afterwards, without making any chiim'for the sums paid, giving her and others to understand that she was the owner of* one-half of the lots. The defendant mended her ways by becoming the lawful wife of another man; and the plaintiff, immediately after, instituted this action, to recover from her the undivided half of the notes mentioned, with interest, at the rate of ten per cent per annum, since they became due. There'was a judgment against him, and he has appealed.

Tire judgment- is undoubtedly right. Had the defendant sued the plaintiff for damages when she became pregnant, she would have been entitled to recover from him a' much larger sum- than that which- he claims, and he cannot be relieved against his voluntary payment of the price of the lots, conveyed to her by way of reparation. He wronged the woman it was his duty to protect, and courts of justice would make themselves the accomplices of his villainy, if they enabled him to commit a fraud, by taking back from her the sum he paid as the penally of his lust. We are satisfied that the promise of the plaintiff for reparation was executed by the payment of those notes. The fact that they were given ¡A-snfe'ífc-with’her, raises no contrary presumption. They were, no doubt, given in the'form-required by the vendors.

The plea-in reconvention of the defendant, was properly disregarded.

Judgment affirmed.


text:
    Girod v. His Creditors.
    A claim for real estate cannot be compensated against sums due by promissory notes. 0. 2205. a
    Ueconventional demands are not exceptions within the meaning of the- rule,- Qua témporalia sunt ad agendum, perpetua sunt ad excipiendum. The only exceptions to which that rule applies, are those which are attached to the action and inseparable from the demand.
    The rights of tho creditors to plead prescription against notes of an insolvent which had been prescribed before the failure, cannot be affected by the fact of the insolvent's having placed them on his hilan. C. C. 3429".
    Where an appeal taken from a judgment homologating a tableau of disribution filed by the syndic of an insolvent estate was not granted in open court, none but the parties cited will be presumed to have had notice of it.
    Arts. 592, 888, of the Code of Practice, which authorise an appellee, though be had not appealed from the judgment of the lower court, to pray that it may be reversed on those points in which lie believes that he has been aggrieved, apply only where all the parties have been cited on the appeal, and all the issues tried in the first instance are appealed from.
    In the general administration of the effects of an insolvent, the syndic represents the creditors, but in the concurso they act in their own names. The decision upon each claim is a separate'judgment, belonging to the party in whose favor it is rendered, which cannot bo disturbad on appeal unless that party be cited. The syndic may appeal from the judgment rendered upon any one claim, and litigate it with the holder; if he does not, any creditor may; but if neither appeal, there can be no adjudication upon their rights in the Supreme Court.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, I. The facts of this case are stated in the opinion, infra.

      Rosclius, for the appellants. B'vron, one of the appellees, pro se.

      L. Janin, appeared for himself, for the syndic, and another appellee.
    The notes made by the insolvent were prescribed at the time of filing his hilan ; the acknowledgment of them on the bilan cannot affect the creditors. Larlhe'i v,. Hogan, 1 An. R. 330.
    Ti e piea of compensation is-inadmissible. Art. 3363.of the Civil Code, the same as art. 1291 of the French Code, says: “Compensation takes place only between two debts, having equally for their object a sum of money, or a certain quantity' of consumable things, of one of tito same kind, and which are equally liquidated and demandabie.” Here, real estate, and not a sum of money or a quantity of consumable things, was due by Nicolas -Girod. See also P.othier, Obligations, no. G24. Touilier, vol. 7, 'nos. 364-6. Holland de Villargues, vol. 2, Vo. Compensation, p. 258. The two debts, were not equally liquidated and demandabie, which can take place only in relation to sums of money and “ consumable things.” 12 Dura-nton, p. 512, nos. 398, 399. Lacoste v. Borderes et al. 7 Mart. N. S. p. 516. The debt of the insolvent was prescribed, when Girod’s executors proposed to compensate it. .Holland de Villargues, verbo Compensation, vol. 2, p. 258, no. 21. 13 Duranton, p. 516, no. 408. Merlin, Questions de Droit, Vo. Compensation. These authorities show, that under .such circumstances as are exhibited by this case, a prescribed debt cannot be offered in compensation.
    Art. 2207 of the Civil Code (the same as art. 1293 of the french Code) says.: “Compensation takes place, whatever be the .causes of either of the debts, except in case : 1st. Of a demand of restitution of a thing of which the owner has been injustly deprived. 2d. Of a demand of restitution of.a deposit, &c. &c. The circumstances from which this piea of compensation arises show, that the executors attempt to oifer in compensation real estate, of which the heirs of Claude Francois Gir.od had been injustly deprived, since 1813. Rolland de Villargues, vol. 2, p. 259, no. 24. And finally, this teal estate was in the hands of Nicholas Girod,ns testamentary executor, that is to say as a depositary. See the authorities above cited, and Pothier, Obligations, «o. 625. Amelung's Syndics v. Bank of the United States, 1 Mart. p. 3.
   The judgment of the court -was pronounced ‘by

Rost, J.

The executors of Nicholas Girod have appealed from a judg-

ment homologating a tableau of distribution filed by the syndic in this case, anil sotting aside their claim to compensate tho sum of ¡$2.807, being the amount of five promissory notes subscribed by the insolvent in favor of Nicholas Girod, in 1833, against an equal amount of the share of the insolvent in the succession of Claude F. Girod, for which the appellants are bound to account, under the decree of the Supreme Court of the United States in the case of Michou et al. v. Girod et al., 4 Howard’s Rep. 503.

The claim of the heirs of Claude F. Girod was for real estate, and cannot be compensated with sums of money due on promissory notes. C. C. 2205. Tlie claim of the executors of Nicholas Girod is in the nature of a reconven.tional demand, tending to establish compensation, and affecting in no manner the rights of the insolvent under the judgment of the Supreme Court of the United States. Reconventional demands are not exceptions within the meaning of the rule Qua temporalia, as contended by the appellants. If the laws of prescription could be evaded, by thus disguising principal demands, those laws would become in most cases inoperative. The only exceptions to which the rule Qua !temporalia applies, are those which are attached to the action and inseparable from the demand. They must, in the language of commentators, he visceral. 2d 'Propiopg. Prese, no. 833.

More than five years had elapsed after the maturity of those notes when the insolvent failed; .and the fact that he placed them on his hilan cannot affect the rights of .the other creditors in the fund to be distributed. They may plead prescription, if .he does pot. C. C. 342.9.

The .appeal in this .case was n.ot granted in open court, and none but the parties .cited are presumed to have had notice of it. The only issue formed before ¡this co.ur.t, is in relation to the .claim which we have already considered; and although any ,of the .parties cited may copie into .court .and ask that the judgment be amended in relation to that claim, they cannot do so for the purpose of litigating the .claims ,of creditors not made parties to the appeal, or of establishing .claims rejected by the .court .below, and having no .connection with that of the appellants. Tire error which has produced this confusion, arises from .considering the decree homologating the tableau as .one entire judgment, whilst it is in reality copip.osed .of many distinct adjudications, one of which only is appealed from.

The dispositions of art. 592 and 888 of .the .Code of Practice are exclusively applicable to cases ip which pH the parties have been cited, and all the issues made in the first instance are appealed from.

In a case lately determined .all the parties but one were b.efor.e us, and, as the ¡appeal had been taken by motion, we held that this party had notice of it, and should be considered as an appellee within the intent .of the articles of the Code of Practice. The opposing creditors ip this case cannot be so considered, beyond the single issue appealed from.

In the general administration of the effects of the insolvent, the syndic rer presents the .creditors; hut ip the concurso, the creditors act ip their own names. The decision of the .court upon .each claim is .a separate judgment, which belongs to the party in whose favor it is rendered, .and which .cannot be disturbed on appeal, unless .that party be cited- The sypdic may undoubtedly appeal from .the judgment rendered upon any one claim, .and litigate it with the holder; if he does n.ot, .other creditors may. But if neither the syndic nor any,of the creditors appeal, the parties are not properly before us, apd we .cannot adjudicate upon their rights.

The yery object .of the proceeding in .concuno would be defeated, if, after the credit.orshad.e.stablishedtheir claims contradictorily with each other in the first Instance, those claims could be .adjudicated upop, ex parte, in the last resort. The parties before us have taken this view of the law, as they have pot deemed •jt necessary to make the syndic a party to the appeal.

In cases like this, parties considering themselves aggrieved by a judgment, jnust appeal, and make proper parties. It is our endeavor to foster liberality in ¡the professional intercourse of the bar, but we d.e.em it a duty to discourage Io,os.epes,s of practice, on .all proper occasions.

/udgment affirmed,


text:
    The First Municipality v. Hall.
    Privileges exist only in those cases in which they have been expressly granted by law.
    ■To entitle aparty to the benefit of the privilege established by the Code in favor of architects, contractors, masons, workmen, and furnishers of materials, for the construction and repair of buildings, the amount due, or to become due, must be fixed in the .contract, where it exceeds five hundred dollars. C. ,C. 2737, 3239.
    APPEAL from the Fifth District Court of New Orleans, Buchanan. J. The plaintiffs obtained an order of seizure and sale, under a special mortgage granted to secure the payment of the price of certain lots of ground sold to the defendant. The amount duo to tins plaintiffs is §3,400, with interest at ten per cent, from the dates of the notes sued on, until paid. Before the property was sold, Moores filed his opposition, and .applied for a separate appraisement of the buildings and the lots of ground, on the allegation that ho was entitled to b.e ■paid in preference to the plaintiffs out.of the proceeds of the sale, under a building contract, to the amount of §3,321 81. The municipality denied that Moores had any privilege on the buildings and improvements on the lots; and averred specially, that if Moores had made .any advances, he has been fully reimbursed out .of the rents he has collected, &c. The contract between BLall and Moores, under which the latter sets up his claim to a privilege, js in the following words : “Agreement between Robert Moores .and T. B. Hall. T.D. Hall agrees to furnish the lot of ground situated at tire corner of Custom-hous.e and Franklin .streets, free of all .expense, for the term of ten years; and agrees jointly with Robert Moores to erect six one story tenements. The s.aid Robert Moores binds himself to erect the buildings .complete, and render bills at prime cost. 'The whole of,the expense of building, however, is not to exceed §4,000. When the buildings are completed, .each of the parties is to receive the rent in proportion ;to the amount he has put in the buildings. 'This agreement to last t.en years, .at the end of which time, T. D. Hall agrees to assume the whole of the buildings, by paying said Robert Moores the half,of what two disinterested persons iShall say they are worth, one of whom is to be appointed by each party; and in case of their not agreeing, they to call in a third. T. D. Hall, however, is Jo have the priyilege, at any time after the .completion of the buildings, to purchase Robert Moores' interest therein,, by paying said Moores the amount which h,e has invested in the buildings.
    Witness, ‘-‘[Signed]” “T.D. Hail,
    “Daniel B. Hindsdell.” “Robert Moores.
    This contract is without date; hut by reference to the certificate of the recorder of mortgages, it appears that it was acknowledged before J. Cuvillier, a notary public, on the 7th of May, 1842, and recorded on the 9th of the same month. Handble, a witness for the third opponent, proyes that the buildings were commenced in April, 1842-
    The erection of the buildings at tlje expense of Moores is not contested ; but his claim is resisted, on the ground that his contract with Hall was not a building contract, giving him a lien for his payment, but a lease and partnership, which gave him no privilege. The court bejow gave judgment agaiijst the opposition, ,nnd Moores has .appealed.

      Boselius, for fbe plaintiffs.
    The claim of Moores for a privilege tinder this pretended building contract, is unfounded. The agreement is destitute of every essential requisite for a building contract. There is not even a fixed or certain price stipulated. C. C. art. 2727.' It may perhaps be difficult to classify this contract, with strict legal accuracy; but it seems to present more of the features of a particular partnership, or joint undertaking, than of any other agreement. But even if it could be regarded as a building contract, it cannot avail against the municipality : 1st, because it is not dated, and it cannot, therefore, bo ascertained within what time it w.as recorded ; 2dly, because the evidences establishes that the buildings were commenced in April, from which it must be inferred that the agreement was passed during that month; and it was not recorded in the mortgage office, until the 9th of May ; the recording of it could therefore operate only as an ordinary mortgage, inferior to that of the municipality. C. C. art. 3241.

      Benjamin and Micou, for the appellant.
    The question is, whether the vendor can put an end to the lease of Moores, without paying for the buildings ? Hall certainly could not do so, and it would seem that his creditors could not exercise a greater power than himself. . The seizure and sale of the property must be considered as equivalent to the exercise of Ihe right reserved to Hall, to end the lease, by paying for the improvements. The vendor can do so, on terms more favorable to himself than Hall could do, as the vendor is bound to pay only the proportional share of the proceeds, .and Hall was bound to pay the whole demand of the builder; but it would se.ero unjust that the vendor, by the exercise of his privilege, should entirely exclude that of the builder. From the sale of the property, the partnership being dissolved, nothing remains in the contract but the builder’s privilege for re-imbursem,ent; which certainly stands, with all its consequences, as if no partnership had ever existed.
   The judgment of the court was pronounced by

Eustis, C. J.

Moores erected six tenements on a lot purchased by Hall from the plaintiffs, and mortgaged for the price, which was unpaid. It was agreed that Moores should retain the premises for ten years as lessee, the rents being in lieu of interest, according to the statement made in the opposition filed by Moores. He claims his privilege as a builder, for the improvements made on the lot by virtue of his contract. A separate appraisement was made, according to article 3235 of the Code, and the conflict is between the privilege asserted by Moores and the vendors’ mortgage, which has remained unsatisfied. Tho district judge dismissed the opposition of Moores, and he has appealed.

We think the district judge did not err. Privileges can be claimed only for those debts to which they are expressly attached by the Code. Art. 3153. The Code, in establishing privileges in favor of architects, contractors, masons, workmen, and those who furnish materials, contemplates that the amount due, or to become due them, should be fixed in the contract, when it exceeds $500. Arts. 2727, 3239.

In this respect the contract under consideration is radically defective; for it not only has no price fixed for the work, but provides for the contingency of the owner furnishing a portion of it, and his receiving a proportionate benefit. There are other obvious reasons for not allowing the privilege claimed by the appellant. Judgment affirmed.


text:
    The Charity Hospital of New Orleans v. Stickney.
    Thestat. of 12 March, 1838, s. 4, making it the duty of the mayor of the city of New Orleans, before authorising exhibitions in any theatre in that city, to require from tho manage,, the production annually of a receipt from the treasurer of the Charity Hospital, show
      ing the payment by the manager of the sum of five hundred dollars for the uso of the Hos. pital, is not unconstitutional. The exaction of a price for the license so granted, is not, in its proper legal sense, a tax.
    Appeal from the Fifth District Court of New Orleans, Buchanan, J*.-

      J., and H. IT. Strawbridge, for the appellants. C. K. Johnson, for the defendant,
    contended that the statute under which plaintiffs claim was repealed by the constitution of 1845, arts. 109,' — 127.
   The judgment of the court was pronounced by

Eustis, C. J.

The petition charges that, by an'act of the legislature, approved March 12th, 1838, an annual tax of $500 is imposed on every theatre and manager thereof, payable to the treasurer of the Charity Hospital; that the defendant, as manager of the American Theatre, in Poydras street, is liablo to pay said tax, for the year 1846. An exception was filed by the defendant that the act of the legislature, under which this suit is brought, is contrary to the constitution of the State, adopted in 184& The district judge was of that opinion, sustained the exception, and gave judgment accordingly, from which the plaintiffs have appealed.

By a statute of 7th March, 1814, s. 9, persons having the administration of theatres open to the public of New Orleans, were bound to give four representations per annum for the benefit of the Charity Hospital, under the direction of its administrators, who were, through persons appointed by them, to receive the proceeds of said representations. The section containing this provision was subsequently repealed by the act of March, 1838, which provided that, instead of exacting, from the managers of theatres four representations annually, $500 be exacted from each; from every circus $150, and from every menagerie $50; and it was made the duty of the mayor of New Orleans, in authorising any of these exhibitions, to require the receipt of the payment of said sums from the treasurer of said hospital.

The case having been presented to us on the validity of these acts, we overlook the misnomer given to the exaction in the plaintiffs petition. By a statute of the 18th March, 1816, the municipal authority has the power to permit or forbid theatres, balls, and other amusements, and to cause play-houses,and other places for shows and exhibitions,- to be closed, whenever the preservation of public order require it. This power is believed to be vested in the government in all countries, and is, throughout the Union, exercised both as to the permission and superintendence of theatrical representations open to the public, which are only exhibited under license.

The law requires that the license shall not be granted except on the condition of a certain contribution to a public institution, which it is necessary for the public weal to maintain. In this we can perceive no violation of any vested right, nor of any provision of the constitution. The views which we have taken of the intendment of the article of the constitution concerning taxation, and the recognition of the rights and privileges of the city of New Orleans by another article of that instrument, expressed in the cases of The Second Municipality v. Duncan, ante p. 182, and Egerton v. The Third Municipality, 1 Ann. R. 435, were adopted after mature consideration of the subject. We do not think that the price of the license for theatres, is, in its proper legal sense, a tax. Vide 11 Johnson’s R. 80.

The judgment of the District Court is therefore reversed, and the case remanded for further proceedings; the defendant paying the costa of this appeal.