author: Watkins, J.

text:
    No. 11,856.
    State ex rel. New Orleans Canal and Banking Company and Louisiana National Bank vs. W. W. Heard, State Auditor, et al.
    Executive officers of the State government have no authority to decline the performance of purely ministerial duties which are imposed upon them hy a law on the ground that it contravenes the Constitution.
    Laws are presumed tobe and must be treated and acted upon by subordinate executive functionaries, as constitutional and legal until their unconstitutionality or illegality has been judicially established.

      Under our system of government it was certainly never intended by its founders that an executive officer should nullify a law by neglecting or refusing to act under it.
    APPEAL from the Oivil District Court for the Parish of Orleans. King, J.

      Branch K. Miller for Plaintiffs, Appellees.

      M. J. Cunningham, Attorney General, for Defendants, Appellants.
    Submitted on briefs November 7, 1895.
    Opinion handed down December 16, 1895.
   The opinion of the court was delivered by

Watkins, J.

Relators seek by mandamus to compel the respondents to comply with and perform their plain ministerial duties, which are designated in the Concurrent Resolution of the General Assembly, known as Act 182 of 1894, directing the Auditor to warrant, and the Treasurer to pay, the amounts claimed by them, out of the surplus interest fund of 1889.

Relators base their claims upon a contract made and entered into by them, with the Board of Liquidation, representing the State of Louisiana, on the 26th of December, 1886, and renewed on the 3d of June, 1888; whereby they engaged, as fiscal agents of the State, to cash and carry the coupons of all valid consolidated and constitutional bonds of the State, up to and including those falling due on the 1st of July, 1889, as specifically stipulated therein.

They aver, that under said contract, they respectively paid to the holders of interest coupons upon consolidated bonds of the State of Louisiana, which were presented to them for payment, each the sum of two thousand six hundred and sixteen dollars; which sums they are entitled to have reimbursed to them, respectively, “ by their “ principal, the State of Louisiana, for whose benefit and account “ the said sums were paid.”

They further aver, that there remains in the hands of the respondent State Treasurer an unexpended balance exceeding ten thousand dollars of the amount of the appropriation made by the general revenue act of the year 1888, being Act 48 of that year, to pay interest coupons of the State of Louisiana, which became due on the first of January and the first day of July, 1889.

That such unexpended balance is in law applicable to the reimbursement of the aforesaid sums by them paid, as fiscal agents of the State; that there is no other appropriation of said balance.

That by concurrent resolution No. 182 of the General Assembly of 1894 the respondent Auditor is directed to warrant for, and the respondent Treasurer is directed to pay them, respectively, the aforesaid sums; and in violation and disregard of their duties therein specified, said respondents have refused and declined, the one to issue his warrant and the other to make payment to them, of the aforesaid sums, as it is their plain ministerial duty to do.

Therefore relators complain, and pray for a peremptory mandamus to compel respondents’ performance of duty.

Respondents, represented by the Attorney General, represent that the claims of relators are for the payment of certain coupons No. 31, due July, 1889, as shown by the list thereof furnished by relators to the Auditor. That said coupons were clipped from consolidated bonds which the State did not owe, which are null and void, and which should have been destroyed by the direction of the Constitution and the law, but which were fraudulently and illegally put upon the market by a former Treasurer of the State. That the bonds from which said coupons were clipped belonged, some to the Agricultural and Mechanical College and some to the Seminary fund; and some had been received in exchange for constitutional bonds. That the said bonds belonging to the Agricultural and Mechanical fund, were declared null and void after the 1st of January, 1880, and the General Assembly was prohibited from ever making any provision for payment, and was ordered to destroy the same by Art. 233 of the Constitution; that as the coupon is a part of the bond, the State does not owe it, and the Legislature is prohibited from paying it, and therefore concurrent resolution 182 of 1894 is null and void, as in violation of the Constitution, as well as Act 48 of 1888, in so far as it may be held to make appropriation to pay those invalid coupons; that the obligation of the State evidenced by those bonds was extinguished by that exchange, and neither the treasurer nor any other person had or has the legal power to revive that obligation by an illegal reissue of the bonds; that therefore the State does not owe said bonds or coupons, and the Legislature is without power to pay them, and respondents have no right to pay them; that the appropriation made by Act 48 of 1888 to pay interest coupons was only to pay coupons clipped from valid and legally outstanding bonds, and not fi’om bonds illegally and fraudulently issued or put in circulation; that the surplus fund remaining in the treasury left from said appropriation after paying all valid coupons of the year must be used by the board of liquidation in buying up valid consolidated bonds, and can not be used to pay interest on fraudulent bonds; that as the State does not owe interest on these bonds the payment of these coupons would be a gratuity which the Legislature can not make; that the concurrent resolution, Act 182 of 1894, is a disguised appropriation, and the Legislature can not appropriate money by concurrent resolution; but such an appropriation as this, if within the legislative power, would have to be made by two separate bills, introduced after thirty days’ proper advertisement, and passed in the regular way, and after all constitutional delays and requirements had been complied with, whereas the concurrent resolution 182 of 1894 was passed as a single resolution, without any of these formalities or delays.

On the trial the evidence showed that relators had paid and expended the sum of money claimed in satisfaction and discharge of coupons clipped from that species of bonds known as Agricultural and Mechanical College bonds in greater part, and that same were those falling due on the 1st of July, 1889, and which were duly presented to them as fiscal agents of the State of Louisiana for payment by the holders thereof in the due course of business and in pursuance of their contract with the State.

It was admitted by the Attorney General, on behalf of the respondent, that there is money enough in the interest fund of 1889, appropriated by Act 48 of 1888, to cover the amounts claimed by re - lators.

It is shown that due and proper demand was made of respondents for compliance with the provisions of concurrent resolution 182 of 1894 without avail.

The Attorney General introduced in evidence the joint report of the Auditor and Treasurer containing a list of consolidated and constitutional bonds as classified by the New Orleans Stock Exchange; other evidence conforming to the averments of the respondents’ answer — particularly, extracts from the published journals of the Senate and House of Representatives, of the session of 1894, showing the course of the legislative proceedings in the introduction and passage of House concurrent resolution No. 27, and which bears the the number 182 in the published acts of 1894. The record contains the following admission of counsel pro and con, viz.:

“It is hereby admitted that the coupons sued upon were clipped from the bonds illegally issued by the Treasurer; that they became due on July 1, 1889, and were paid on that date by the relators’ banks without any notice or knowledge that they were fraudulent, (they being) fiscal agents of the State, on date of their presentation. That similar coupons clipped from some bonds had been paid •on presentation by the fiscal agents, on the first of January and July of each year, from the time they were put in circulation up to and •including the coupon due 1st of July, 1889, up to that time there having been no suspicion of fraud, and all of said payments having been allowed by the Auditor and Treasurer in settlements made with the fiscal agents. That after these coupons were paid b/ relators, the fraudulent issue of the bonds was discovered in September, 1889, and they were not allowed credit therefor in their settlement with ■the Treasurer.”

The language of the concurrent resolution 182 of 1894 is as follows, viz.:

No. 182.]
concurrent resolution
Authorizing and directing the Auditor to warrant for, in favor of, the Louisiana National Bank and the New Orleans Oanal and Banking Company, both of the city of New Orleans, and the Treasurer to pay said banks the amount of certain interest coupons, paid by the said banks as fiscal agents of the State of Louisiana, on July 1, 1889.
Whereas, In the year 1889 the Louisiana National Bank and New Orleans Cajal and Banking Company, both of the city of New Orleans, were fiscal agents for the State of Louisiana; and
Whereas, In such capacity as fiscal agents the said banks paid to the holders thereof certain interest coupons of certain consolidated bonds of the State of Louisiana,, maturing July 1, 1889; and
Whereas, The bonds from which said coupons had' been detached were subsequently ascertained to be the property of the State of Louisiana, and which had fraudulently been put in circulation by E. A. Burke, then-Treasurer of the State of Louisiana; and
Whereas, There remains in the hands of the State-Treasurer a balance of appropriations made by the Legislature of 1888, to pay the interest upon the consolidated-bonds of the State of Louisiana;
Appropriation the Louisiana Natiouai Bank and the New Orleans Canal Bank.
Therefore be it resolved, by the Senate of the State of Louisiana, the House of Representatives concurring therein, That the Auditor is authorized and directed to ’ warrant in favor of the said Louisiana National Bank for the sum of two thousand six hundred and sixteen dollars, ’ and the said New Orleans Canal and Banking Company for the sum of two thousand six hundred and sixteen-dollars, being the respective sums paid by them as fiscal agents as aforesaid, upon any unexpended balance in the hands of the State Treasurer, of the appropriation made for the payment of interest upon the consolidated bonds of the State of Louisiana, by the Legislature of 1888; and the Treasurer is hereby authorized and directed to pay said banks the said sums in the usual course.
G. W. BOLTON,
Speaker of the House of Representatives.
H. R. LOTT,
President Pro Tempore of the Senate.

On this statement of the issues raised, we have three questions for consideration, to-wit:

First. Whether it was within the competency of the Legislature to appropriate, or apply money from the State treasury, to the reimbursement of the relators’ claims, for money expended in the payment of the interest coupons, taken from the consolidated bonds, of the denomination of Mechanical and Agricultural College bonds, and from constitutional bonds, which matured on the 1st of July, 1889.

Second. Whether, in fact, concurrent resolution 182 of 1894 was not an-act of appropriation, in disguise, and enacted without observance of constitutional forms and legal requirement, and therefore absolutely null, and without legal effect.

Third. Whether the unexpended balance in the State treasury, resulting from the general appropriation act of 1888, can be reached and controlled by concurrent resolution 182 of 1894; or is same by law dedicated to the Board of Liquidation for the purchase of outstanding valid constitutional bonds of the State.

I.

This is not a suit against the State.

It is a mandamus proceeding undertaken by relators, as the quondam fiscal agents of the State, for the purpose of coercing the performance of an alleged ministerial duty which a concurrent resolution of the General Assembly has imposed upon the respondents as executive officers of the State government. In such a proceeding the State can not he said to have been sued. She could not be sued without special legislative permission.

In State ex rel. McEnery vs. Nicholls, Governor, 42 An. 209, we said that “a mandamus against the register of the State land office, to coerce his performance of duties purely ministerial, is not a suit against the State. Mandamus will go to the auditor, treasurer or register of the land office of the State, in appropriate cases.”

In State ex rel. Collens vs. Jumel, 30 An. 863, our predecessors said:

“The State is sovereign, and can not be sued by her citizens, in her own courts, without her permission; but a civil proceeding by which one officer of the State seeks to compel another officer of the same State to perform a ministerial duty is not, in the proper sense of the words, a suit against the State.

“ Nothing is more common than for a party who has a claim “ against the State, whether for salary as an officer, or for money “ due on other accounts, to have his right to payment adjudicated “ through and by means of a mandamus against the auditing officer.

“ It is recognized by us as a legitimate mode of ascertaining what “ are the rights of persons who have or who prefer claims against “ the State.” State ex rel. Ecuyer vs. Treasurer, 33 An. 969; State ex rel. Campbell vs. Auditor, 37 An. 353; State ex rel. Mentz vs. Auditor, 28 An. 47; State ex rel. Printing Company vs. Auditor, 28 An. 72.

Those decisions are in line with those of the Supreme Court of the United States. Marbury vs. Madison, 1 Cranch, 137; Kendall vs. United States, 12 Peters, 608; Board of Liquidation vs. McComb, 92 U. S. 541.

The principles announced in those decisions are in strict keeping with the relief demanded by the relators in the instant case.

Exactly the converse of the foregoing proposition is announced in State ex rel. Hope & Co. vs. The Board of Liquidation, 42 An. 647.

In that case we held:

“ Whenever, by the Constitution and laws of a Stnte, officers of “ .the executive branch of the government are vested with discre- “ tionary powers and functions in the performance of civil duties or “ when political powers and responsibilities are devolved upon “ them they are not amenable to judicial process; in such case their “ acts are only politically examinable.”

The relators have brought themselves strictly within the principles announced in the Collins case — their demands being predicated upon claims for moneys expended for account and in pursuance of their contract with the Board of Liquidation, and their right to mandamus depending upon the terms of Act 182 of 1894.

In State ex rel. Campbell vs. Steele, Auditor, supra, relator asserted a claim against the State, to meet which the legislature had made an appropriation, directing its payment out of any money in the treasury not appropriated; and complained that the auditor had declined to issue his warrants on the treasury therefor — the latter denying his right to issue such warrant, and offering the relator his warrant on the general fund.

The court, when speaking of the legislative act, said:

“ It was passed while there was enough money in the treasury to pay it, and before any appropriation of it to any other object, to prevent or impair its payment.

“The general assembly, most probably, understood the exact condition of this fund then, and employed the language used in the act to cause its application to the admitted indebtedness.

“The words of the act are entirely sufficient to accomplish this end, by charging that fund and any other fund inexistence with a reserve for that purpose.

“The Legislature did not propose to postpone the payment oí the claim. They contemplated to have it paid from any money in the treasury which had not been previously specifically destined, set apart or appropriated for another object.”

While it was made the general duty of the auditor to examine, audit and settle all claims which are presented against the State, and payable out of the treasury, and to that end it is made his duty to examine all the evidence in support thereof before issuing his warrant therefor, yet the act on which relator’s suit is predicated in terms declares that they respectively paid and expended the sums claimed while acting in the capacity of fiscal agents of the State, in pursuance of their respective contracts, in paying “ coupons of certain consolidated bonds of the State of Louisiana maturing July 1, 1889, and that the bonds from which said coupons had been detached were subsequently ascertained to be the property of the State of Louisiana, and which had fraudulently been put in circulation by E. A. Burke, then treasurer of the State of Louisiana.” ' And, having made this statement of fact, the act further declares “ that the auditor is hereby authorized and directed to warrant” in their favor for said sums, “ upon any unexpended balance in the hands of the State treasurer of the appropriation made for the paymient of interest upon the consolidated bonds of the State of Louisiana by the legislature of 1888; and the treasurer is hereby authorized and directed to pay said banks the said sums in the usual .course.”

So it is clear that the facts are found, and the duty is imposed by the legislature, thus dispensing the auditor from the performance of the general duty of examining the facts upon which relator’s claims are founded.

In People ex rel. Cromwell vs. Commissioners, 36 Barbour, 177, it was held “ that the courts have nothing to do with the correctness or incorrectness of the legislative opinion, and must assume the fact to be as the legislature assume or admit it to be.”

In Bank vs. Fenno, 8 Wallace, 553, it was said that “ the motive of the legislature in passing a law can not be inquired into by the courts. ’ ’

Judge Cooley declares it to be the consensus of the best judicial opinion “ that a statute is assumed to be valid until some one complains whose rights it invades. Cooley’s Con. Lim., pp. 163, 188.

In Lusher vs. Scites, 4 W. Va. 11, it was decided that the courts ean not go into’ an inquiry as to the truth or falsity of facts upon which an act of the legislature is predicated.

It becomes manifest, therefore, that the discretion of the auditor in the premises was eliminated from the case and the purely ministerial function of issuing his warrant preserved. High’s Ex. Lega* Rem., Secs. 101, 104. That, in this respect, the ministerial duty which is imposed upon the auditor is likewise imposed upon the treasurer. Now, in State ex rel. Hommerich vs. Hunter, treasurer, 14 An. 221, it was stated that the respondent “ refused to pay the warrants on the ground amongst other’s that from his construction of Act No. 143 of 1859 the money claimed by these warrants was not due ” the relator; but the court held that he had no such power under the law, and said that “ the payment of the warrants was a ministerial duty imposed upon the treasurer.” (Our italics.)

And in the course of their argument on the respondents’ pretensions they said:

“ Such an argument, if legitimate, would justify the interference of public officers with the peculiar functions appropriated to each, and would produce such collisions in the administration of public affairs as to materially impede the proper and necessary operations of government.”

Accepting this as the true doctrine, applicable to executive officers of the State government, is it not applicable with much greater force to an attempted invasion of the prerogative of the legislature?

If an act of the legislature has, formally and in terms, declared that certain claims against' the State are just and well-founded and ordered the auditor to warrant on the treasury therefor, and the treasurer to pay same can either question the authority of the general assembly or go behind the act and inquire into the evidence on which such claims are based or the constitutionality of the act.

Whilst, under the peculiar circumstances of the case, we entertained the charge of uneonstitutionality in the act of the legislature which was raised by the secretary of state, as relator in the case of State ex rel. Morris vs. Secretary of State, 43 An. (at page 647), yet we safeguarded it in this way:

“We may state, as a preliminary to the discussion of the remaining issues in the return, that the right of the secretary of State to raise such issues for judicial determination as prerequisite to granting relief by mandamus compelling him to publish the proposed amendment is very questionable indeed. But we are indisposed to hamper and circumscribe any remedies the respondent thinks himself entitled to, and will underbake the investigation of the issues raised only for the purpose of determining whether the alleged invalidities in the confection of the proposed amendment, and its alleged illegal and unconstitutional features, are so glaring and patent as to furnish the secretary of State just grounds of refusal to publish it.” .

From the foregoing it is quite clear that this charge of unconstitutionality and illegality of an act of the legislature can not be regarded as a precedent justifying its application in ordinary cases like this.

In State ex rel. Nicholls, Governor, vs. Shakspeare, Mayor, 41 An. 156, this question arose and was expressly decided, the court holding that -‘laws are presumed to be constitutional until the contrary is judicially established; and they must be executed by the officers upon whom they impose the duty of doing so, who have no authority to resist the execution thereof on the ground that they contravene the constitution.”

Again:

“ Therefore, when the judiciary, whose duties are to pass upon the constitutionality of an act, is so careful and conservative in its deliberations before passing judgment as to its validity, it seems but reasonable to require, in a well-constituted government, obedience to it by officers who are to execute it until its constitutionality is passed upon by the judiciary.”

In Bassett vs. Barbin, 11 An. 672, the old court said:

“ It was probably in the contemplation of the legislature that the duty would be performed by the sheriff in office at the time of the promulgation of the law, but it surely was never intended that that functionary could nullify the law by neglecting or refusing to execute it. ’ ’

In State ex rel. Hall vs. Judge, 33 An. 1222, it was held that the judge of the district court has no right to refuse leave to the district attorney to file an information on the ground that, in his opinion, the statute under which the prosecution is instituted is unconstitutional. That it was “'a matter of defence exclusively within the discretion of the accused, who can urge it in arrest of judgment.”

In Fisher vs. Steele, Auditor, and Burke, Treasurer, 39 An. 447 the court, after quoting from Cooley’s Constitutional Limitations, one of the extracts made below, said: ■

That principle is suggestive of a grave doubt of the right of plaintiff in this case to assail the constitutionality of the statute under discussion,” etc.

In State ex rel. Board vs. Jumel, Auditor, 32 An. 60, it was held that the auditor can not be compelled by a, mandamus to levy a certain, tax, even though an act of the legislature made it his express duty to do so, when it appears that his doing so would be in disregard of a final decision of the Supreme Oourt pronouncing the act unconstitutional and in direct contravention of a subsequent act of the legislature.

In State ex rel. Macaulay vs. Clinton, Auditor, 27 An. 429, it was held that in a mandamus proceeding, the question whether the State, by her legislation on the subject, has impaired the obligations of her contract with the relator, is a matter that can not be decided in this controversy, because the State is not a party to the suit, and the auditor has no interest in the solution of the question.

The same observation is applicable to other constitutional objections raised by the relator.

This decision, and others of its kind, is well illustrated by that in The State vs. Judge of the Fifth Judicial District, 5 An. 756, where the act of the legislature providing for the trial of causes in which a district judge shall be recused by the judge of an adjoining district, was alleged to be unconstitutional by the respondent, and held to be valid by the court — it being a question in which the judge had an interest, and which was a necessary issue to be disposed of. In that case the judge was called upon to test the constitutionality of the law as a matter of defence.

We have thought it advisable, owing to the great importance of the question, to go over the jurisprudence of other states, and we have examined all the cases within our reach, and have made the following extracts therefrom as the result of that examination:

In State ex rel. Bloxam vs. Secretary of State, 13 Fla. 55, it was held that an act of the Legislature repealing the law imposing the duty on respondent, pending trial, without saving the proceedings having been called to the attention of the court, the power was gone, and the proceedings must be dismissed.

In State ex rel. Moody vs. Barnes, Comptroller, 25 Fla. 298, it was said that while it is not ordinarily a case calling for mandamus “ because respondent went out of the way to exercise his discretion on a question not properly within it, or because he gave a reason, if a wrong one, for his decision, on a question to which its.discretion did not reach;” yet, “ in either case, we have seen that mandamus has been allowed.”

In State vs. Lafayette Co., 41 Mo. 221, the writ was granted against the county court to give relief against abuse and oppression.

In Nelson vs. Edwards, 55 Texas, 389, it was held that mandamus should go “ because the commissioners went outside of their discretion in at all considering the controversy between the parties as to which of the two was entitled to the office.”

In Guilick vs. New, 14 Indiana, 93, the writ was granted on the ground that the clerk, whose duty it was to approve sheriff’s bonds, refused “because another was in the office claiming it.”

The situation was the same in Case vs. Pritchett, 1 Spencer, 134; also in Beck vs. Jackson, 43 Mo. 117. In Daniel vs. Miller, 8 Colorado, 542, the writ went to the clerk of court, “ because he refused to approve an appeal bond, on the ground that the court held that appeal did not lie.” In State ex rel. vs. Lewis, 50 Ohio St. 128, the writ issued because “ the officers to approve sheriff’s bond refused, because, in their opinion, the bond was not presented within the time for approval required by law.

In Mobile, etc., vs. Cleveland, 76 Ala., it was issued to the clerk because “ he refused to approve an attachment bond, because the sureties were non-residents of the county — the law requiring sureties to be resident of the county,” etc.

In State ex rel. Moody vs. Comptroller, supra, the court, after reviewing and analyzing many cases, said:

“ These cases resting on mistake of law, it is important to observe “ that it was law not connected with the sufficiency of the bond, as “ to its form, legality and sureties; and therefore laid outside of the “ discretion given for the approval of bonds, * * Courts only ‘ ‘ check the exercise of discretion when assumed in regard to mat- “ ters not properly within it, or when mistake is made in law not “ germane to the discussion ” (p. 308).

In Franklin & Co. vs. State ex rel. Patten, 20 American and English Corp. Cases 60, the Florida court say:

“ No* only is it true that a court will not, as a general rule, pass “ upon a constitutional question, and decide a statute to be involved “ unless a decision upon that very point becomes necessary, but it “ is also a rule that a court will not listen to an objection made to “ the constitutionality of a statute by a party whose rights it does “ not affect, and who has, therefore, no interest in defeating it.”

In Jones vs. Block, 48 Alabama, 540, the court say:

“ A party who seeks to have an act of the legislature declared u Unconstitutional must not only show that he is or will be injured “ by it, but he must also show how and in what respect he is, or will “ be, injured and prejudiced by it.” Injury will not be presumed; it “ must be shown.”

In Turnpike Corp. vs. County of Norfolk, 6 Allen 360, the Massachusetts court held that the validity of a statute can be called in question only by those having a direct interest in the rights supposed to be injurioiisiy affected by its provisions.

In People vs. Railroad Company, 15 Wendell, 113, where the attorney general filed an information in the nature of a quo wurranto to contest respondents’ right to build a bridge across the Hudson river, it was held that the constitutionality of the legislative act authorizing its construction “can not be called in question oy the people, but that individuals alleging themselves to be injured thereby can alone raise the question.” Smith vs. McCarthy, 56 Penn. St. 359; Marshall vs. Donovan, 10 Bush. 681; Williamson vs. Carleton, 51 Maine, 449; Dyarnitt vs. Mayner, 23 Miss. 600; State vs. Hill, 10 Neb. 38; Howard vs. McDearmid, 26 Ark. 100.

In Van Horn vs. State ex rel. Abbott, 64 N. W. Rep. 365, the Nebraska court said:

“But the courts themselves will enforce a statute, unless it is clearly repugnant to the Constitution, and in discharging the functions of their offices ministerial officers should of course exercise the greatest caution on such questions.

“A doubt as to the validity of a statute would not justify them in disregarding it.

“ The peace of the community, the orderly conduct of government, require that only in clear cases of unconstitut.onality should they refuse obedience to legislative acts.

“They always disregard those at their peril.”

In State vs. Douglass, 18 Nebraska, 506 (26 N. W. Rep. 315), it was held that on an application for mandamus against county commissioners to compel them to call an election “ the court would not, in that proceeding, determine whether or not the act was in contravention of the constitution.” State vs. Stephenson, 25 N. W. Rep. 585; State vs. Moore, 40 Neb. 854.

In the People ex rel. Attorney General vs. Solamon, 54 Illinois, 39, it was held that “ a ministerial officer can not be allowed to decide upon the validity of a law and thus exempt himself from responsibility for disobedience to the command of a peremptory mandamus, his disobedience to the law being the cause of his inability to ocey the command of the court. It is the duty of a ministerial officer to obey the act of the legislature directing his'action, not to question or decide upon its validity.”

Again:

“ To allow a ministerial officer to decide upon the validity of a law would be subversive of the great objects and purposes of government, for if one such officer may assume infallibility, all othe like officers may do the same, and thus an end be put to civil government, one of whose cardinal principles is subjection to the laws.”

In Wellington vs. Petitioner, 16 Pickering, 96, it was said by the court:

“Prima facie and on the face of the statute itself nothing will generally appear to show that the act is not valid, and it is only when some person attempts to resist its operation and calls in the aid of the judicial power to pronounce it void, as to him, his property or his rights, that the objection of unconstitutionality can be presented and sustained.

“ Respect for the legislature, therefore, concurs with well-established principles of law in the conclusion that such an act is not void, but voidable only, and it follows as a necessary legal inference from the position, that the ground of avoidance can be taken advantage of only by those who have a right to question the validity of the act, and not by strangers.” Matter of Albany St., 11 Wendell, 149; Williamson vs. Carlton, 51 Maine, 449; State vs. Rich, 20 Mississippi, 393.

Cooley again declares:

“The constitutionality of a law, then, is to be presumed because the legislature, which was first required to pass upon the question, acting, as they must be deemed to have acted, with integrity, and with a great desire to keep within the restrictions laid by the constitution upon their action, have adjudged that it is so.

“ They are a co-ordinate department of government with the judiciary, vested with very high and responsible duties, as to some of which their acts are not subject to judicial scrutiny; and they legislate under the solemnity of an official oath, which it is not to be supposed they will disregard.

“It must, therefore, be supposed that their own doubts of the constitutionality of their own action have been deliberately solved in its favor; so that the courts may, with some confidence, repose upon their conclusion, as one based upon the best judgment.” Oooley Oon. Lim., p. 183. <

Again:

“ The courts must assume that legislative discretion has been properly exercised. If evidence was required, it must be supposed that it was before the legislature when the act was passed; and, if any special finding was required to warrant the passage of the particular act, it would seem that the passage of the act itself might be held equivalent to suchfinding.” Ibid., p. 186; Domere vs. Cogley, 8 Blackf. 177; Magruder vs. Magruder, 1 Blackf. 352.

Oooley again says:

When a statute is adjudged to be unconstitutional it is as if it had never been.

“Rights cau not be built up under it; contracts which depend upon it for their consideration are void; it constitutes a protection to no one who has acted under it; and no one can be punished for having refused obedience to it before the decision was made.” Ibid., p. 187.

The Judiciary are “the rightful expositors of the laws.” Bank vs. Dudley’s Lessee, 2 Peters, 492; Dodge vs. Woolsey, 18 Howard, 331.

In the case of Marbury vs. Madison, Secretary of State, 1 Cranch, 137, mandamus was resorted to for the purpose of compelling the respondennt to deliver a commission which had been signed by the President to relator as a justice of the peace, and the principal question was as .to the constitutionality of the law which imposed the duty on the respondent.

There was no discussion as to the right of the secretary to raise the question, for the question was raised by the court and they said:

“ In some cases, then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they' forbidden to read or to obey?” P. 179.

In Board of Liquidation vs. McComb, 92 U. S. 531, Justice Bradley as the organ of the court said:

“In either case if the officer plead the authority of an unconstitutional law for the performance or violation of his dnty it will not prevent the issuing of the writ of mandamus.”

In Huntington vs. Worthen, 120 U. S. 97, the authority of the board of railroad commissioners to raise the question of the unconstitutionality of the law was not mooted or discussed. The court said:'

“ An unconstitutional act is not a law; it binds no one, and protects no one. Here the conflict between the constitution and the statute was obvious, and the board had the advice of the highest legal officer of the State; and his construction was sustained by the judgment of the Supreme Oourt of the State.”

This was an exceptional situation.

Norton vs. Shelby County, 118 U. S. 425, was an ordinary common law action of debt, and the question of the constitutionality of a law was directly involved as a part of the case.

Poindexter vs. Greenhow, 114 U. S. 270, was an action for the recovery of personal property, and the constitutionality of the law was properly an issue.

In Sessums vs. Botts, 34 Texas, 335, it was held that from the date of the enactment of a law until it was adjudged unconstitutional by that court, it had the force and effect of law, so far as to protect ministerial officers in obeying its mandates; and that it is advisable for all good citizens to obey whatever the law-making power shall promulgate as law until it shall be adjudicated by the judicial tribunals not to be law.

We have not only gone over all of the foregoing cases, and examined them with care, but we have likewise examined a great many others; those not cited were found, in our opinion, inapplicable to the present controversy, because only private rights were litigated between individuals, and the constitutional questions were properly raised and decided.

In mandamus proceedings against a public officer, involving the performance of official duty, nothing can be inquired into but the question of duty on the face of the statute, and the ministerial character of the duty he is charged to perform.

After a careful investigation of the authorities, we feel fully confirmed in the correctness of the conclusions we arrived at in Nicholls, Governor, vs. Shakspeare, Mayor, and other cases, to the effect that executive officers of the State government have no authority to decline the performance of purely ministerial duties which are imposed upon them by a law, on the ground that it contravenes the Constitution.

Laws are presumed to be, and must be treated and acted upon by subordinate executive functionaries as constitutional and legal, until their unconstitutionality or illegality has been judicially established, for, in all well regulated government, obedience to its laws by executive officers is absolutely essential, and of paramount importance.

Were it not so the most inextricable confusion would inevitably result, and “ produce such collisions in the administration of public affairs as to materially impede the proper and necessary operations of the government.”

“It was surely never intended that an executive functionary should nullify a law by neglecting or refusing to execute it.”

The result of this conclusion is, that the respondents are without right to urge the unconstitutionality of the concurrent resolution which is involved.

II.

With regard to the second question which is presented by the return — whether, in point of fact, the concurrent resolution of 1894 was not an act of appropriation in disguise, enacted without observance of the forms of law, and therefore absolutely void and without legal effect we are of opinion that it rests upon a different footing.

The auditor is in duty bound to exercise proper watchfulness and care in the performance of his arduous and responsible duties. In dealing with legislative appropriations he must necessarily examine the laws making the same, and should his'judgment suggest that any act was wholly irregular, it would be his duty to pause in issuing his warrants thereunder until its validity had been judicially ascertained. This is a pai’t of his official duty, and this court will assume that he has acted with due circumspection and not arbitrarily or captiously.

Looking into the facts which we have detailed supra, we find that this contention is not well grounded, for, inter alios, it was admitted by the attorney general that there is money enough in the interest fund of 1889 to cover the amount claimed by the relators.

Hence the funds under consideration had been already appropriated long prior to the passage of the joint resolution of 1894, and the general assembly merely dealt with an existing surplus of the money which had been theretofore dedicated to the interest fund. In this light the legislative purpose and object were to make this surplus applicable to the claims of relators, and the concurrent resolution was the means adopted for that purpose.

In State ex rel. Fisher vs. Steele, Auditor, and Burke, Treasurer, 39 Am. 447, it was held that any balance remaining to the credit of one or more of the separate funds created by law, after the satisfaction of all the warrants drawn against the same, is the property of the State, with full power in the legislature to apply the same to any lawful purpose under the constitution.

In our opinion that decision is correct and it is conclusively against respondents’ contention.

Ill

In view of the authorities cited and the opinion we entertain of the right of the respondents to raise the question of the constitutionality of the law, it is needless for us to examine the question of the sufficiency of the evidence on which the legislature acted. We believe it to be obligatory upon us to coerce the respondents to perform the ministerial function imposed by the concurrent resolution upon them respectively, and leave the evidence upon which they acted without comment, and the constitutionality of the law to future determination.

In so far as concerns the question of the unexpended balance resulting from the general appropriation of 1888 having been dedicated to the board of liquidation for the purpose of purchasing outstanding consolidation bonds, and consequently beyond the control of the general assembly at the time of the passage of the concurrent resolution, it is sufficient to say that we must act on the evidence in this record; and it shows by the respondents’ admissions that there is sufficient money in the interest fund of 1889, appropriated by said resolution, to cover the relators’ claims.

Whether the board of liquidation has any prior or better claim thereto than the relators does not appear from the evidence. At all events, the board of liquidation has not been made a party and its rights can not be determined here; and they will not, of course, be interfered with by our decree.

The judgment of the court below was in favor of the relators and it is affirmed.

Miller, J., recused.


source: Caselaw Access Project

author: Nicholls-, O. J.

license: Public Domain

text:
    No. 11,625.
    The State of Louisiana vs. Kennerson Dixon.
    This court will not remand a cause to have a sheriff’s return, corrected, when the* statement of the District Judge as to the facts of a service are not disputed.
    A person, other than a licensed physician (for instance, trained nurses in the Charity Hospital), may have such knowledge of a particular disease as to make their statements regarding its existence, condition and state of progress * thoroughly reliable.
    In criminal cases objections to testimony on the ground of irrelevancy will not be sustained by this court, unless well advised, through bills of exceptions, of all the details of the case upon which the District Judge has ruled.
    APPEAL from the Tenth District Court, Parish of Avoyelles. Coco, J.

      M. J. Cunningham, Attorney General, for Plaintiff, Appellee.
    JE. North Cullom, Jr., for Defendant and Appellant.
   The opinion of the court was delivered by

Nicholls-, O. J.

Defendant, found “guilty without capital punishment” under an indictment charging him with “rape,” has appealed.

When the ease was called for trial, counsel for accused asked that an attachment issue for an absent witness, and that until it should have been executed, the trial be delayed. An order for attachment was given, but immediately afterwards revoked, the judge assigning as his reason for so doing that the sheriff had informed him the witness was a resident of the parish of St. Landry, and that in addition to this, the deputy sheriff who had made service upon the witness also informed him that the service was made by him in that parish (St. Landry). Under such circumstances the order was properly revoked. Counsel claim that we come to a knowledge of these facts irregularly, and only as statements of facts made by the judge in the bill of exceptions reserved. That there is nothing on the face of the subpoena, or the return thereon, to show that the witness lived in the parish of St. Landry, or that service was made upon her there by the deputy sheriff of Avoyelles. The District Judge assigns these as the facts upon which he revoked his order. The ■statement? of the sheriff and deputy sheriff seem to have been made at the time the ease was called in open court, and the judge, doubtless, in open court, made known to counsel the grounds upon which he acted. While an examination of the return upon the subpoena shows that service was made upon the witness in person, it fails to show where the service was made. Under ordinary circumstances the service under such a return might be assumed to have been made in the sheriff’s own parish, but where in open court the officer de■clared to the judge that such was not the fact (and the judge in the bill of exceptions so informs us), we think it was the duty of accused to have caused the officer to amend his return so as to show the fact, if such it was, that the service was made in Avoyelles. Strictly speaking, the return should have shown originally where the service was made. When the place of the service was called in question, that fact should have been placed beyond doubt. The return comes to us with a fact omitted, which we think should have appeared in it. It is not a full and perfect return.

There is no claim made that the facts stated by the judge and the ■deputy sheriff are not correct, but only that the circumstances connected with the service are not presented to us in strict form. At best, we would only remand the case to have the return amended to •conform to the facts — useless where the facts themselves are not •disputed.

The case having been ordered by the court to proceed to trial, accused moved for a continuance on the ground of the absence of the witness referred to.

In the affidavit accompanying the application, it is declared that .after the case was fixed for trial, accused, through his counsel, obtained an order from the court for a subpoena to issue to the witness (who, affiant was informed, was then in the parish of St. Landry) ■directed to the sheriff of St. Landry for service, and that he also placed an order in the office of the clerk of Avoyelles for a subpoena to be served in Avoyelles by the sheriff of the latter parish, but nowhere in the affidavit is it stated, that the witness was domiciled in Avoyelles. The facts seem to be that the subpoena which should have issued was that which was to be sent to St. Landry; that no ■attempt was made to procure the attendance of the witness under it, •but that accused took the chance of the sheriff finding the witness in Avoyelles and making service on her there. The failure to allege or to swear to the residence of the witne'ss is • significant. There was not due diligence made in the case and the continuance was properly refused. In view of that fact, consideration of the character of i he testimony which accused might have elicited from the witness (had •she been properly summoned) becomes unnecessary. Prior to the trial of the case, an order had been procured by the State for the physical examination of the accused by Dr. DeNux. This examination was made by the doctor, his son being present at the time. Dr. DeNux being unable to attend the trial, Emerin DeNux|(the son) was placed on the stand with the view of establishing through him that •defendant was afflicted with venereal disease. Defendant’s counsel ■objected to the inquiry being gone into, because, first, the existence ■of the disease on the body, or in the system of the accused, was not laid as a charge against him in the indictment; that it was not an •offence known in law, and the evidence sought to be elicited was irrelevant and illegal and calculated to highly prejudice the jury against the prisoner.

Second — That the particular witness was not competent to testify as an expert in the case.

The objections were overruled, and the testimony sought to be kept ■out was admitted, and defendant reserved a bill.

The witness declared that he had studied medicine for some time-under his father, and had practised under his direction and in his-company. That thereafter he attended Tulane University, and during his studies at that institution had practised in the Charity Hospital. That he had seen and treated at the hospital many eases of this particular disease, not less than fifty. The District Judge was-of the opinion that under the circumstances he was competent to testify as an expert. We can not say the court erred. It is true the-witness had not as yet received a diploma, or been licensed to-practise medicine, but while this fact would be important for certain purposes, it would.-not of itself disqualify the witness necessarily. A person, other than a licensed physician (for instance, trained nurses-in the Charity Hospital), may have such knowledge of a particular-disease as to make their statements regarding- its existence, and its-stage and state of progress thoroughly reliable.

It will be seen that no objection was made to the fact itself of a physical examination of the defendant, nor was any specific objection made to the tardiness of the examination relatively to the date of the alleged commission of the crime. If the latter question was raised at all, it was only remotely so under the claim of irrelevancy.

The objection that the fact of defendant being afflicted at .the time-of the alleged crime with a venereal disease was not recited or referred to in the indictment, because he is not charged with having-such a disease or of having communicated it to others, and that that fact, if proved, would show no crime in this State, is without foundation. The testimony evidently was not elicited for the purpose of charging him with a crime in either having himself or communicating the disease to others, but as a circumstance.which, taken in connection with proof that the child alleged to have been raped had had that particular disease communicated to her at or about the time the crime is charged to have occurred, would tend to corroborate (we must assume) other testimony in regard to the commission of the crime and the connection of accused with it. In other words it was simply “evidence” in support of the charge of rape, and it was no more necessary or proper to set it out in the indictment than it was-to recite any other portion of the testimony which might be adduced.

The objection of irrelevancy of testimony in criminal cases which has been, admitted as relevant by the District Judge is one difficult to-be sustained in this State, where the Supreme Court has so little 'knowledge of the state of the whole record and the whole evidence. Testimony Which, under a certain condition of the other evidence taken, would ,be irrelevant or improper, might become exeedingly pertinent and important under another condition of the testimony. We would have to be well advised by accused, through his bills of exception, of what the exact situation was to justify us in setting aside the rulings of a District Judge fully informed as he was with all the details of the ease before him. We understand in this particular case the objection to be urged against the reception of the testimony on the ground that it was not admissible and relevant under the rules of pleading, as applicable to the recitals of the indictment. We have said there was no necessity for setting up these matters in the pleadings in order to make testimony under them relevant. We can easily imagine such a condition of the testimony other than that objected to (which might have been taken in this case) as would have made it proper for the court to allow that objected to to be received. We are bound to assume in the absence of proof to the contrary that his Action was authorized.

Objections to the same effect as those which we have just considered were made and overruled to the testimony of Dr. Arnold, a practising physician, who had made a physical examination of the child charged to have been raped. The objections were correctly overruled. It may not be amiss to say that both Dr. Arnold and Emerin DeNux testify not only as to the situation existing at the time of their respective examinations, but from it (as then existing) testify to the course and dates of the disease in each of the parties •examined.

In Grimmett vs. The State (Texas), 25 Southwestern Reporter, it was held that tardiness of an examination (in that case of certain garments) affects the weight and effect of testimony, not its admissibility.

For the reasons herein assigned the judgment appealed from is hereby affirmed.


author: Nicholls, C. J.

text:
    No. 11,665.
    Francis B. Williams vs. Valere Landry et al.
    When there is a title ol record in the archives of a parish, it is no part of the assessor’s official duty to call in question the verity of that title and go back to a former title. Prescott vs. Payne, 44 An. 656.

      The title of a purchaser in good faith, under recorded deeds and in actual possession, can not be defeated by non-registry of an anterior deed, however remote.
    APPEAL from the Twentieth District Court, Parish of’Assumption Guión, J.

      Beattie &lBeattie for Plaintiff and Appellant.

      L. Ü. Folse for Defendant and Appellee.
    Plaintiff alleging himself to be the owner of lots Nos. 1, 2, 3, 4, 5 and 6 of section 24, in township No. thirteen (13), south of range No. 12 East, west of the Mississippi river on the western shore of Lake Verrett, in the parish of Assumption, said lots constituting all that there is of said section, and averring that Valere Landry had illegally entered as a trespasser upon the same, claiming it as his property under a tax adjudication made to him on July 17, 1886, for taxes assessed in the name of James Steck or Dix which he (plaintiff) alleged to be an absolute nullity, prayed to be recognized as the owner of the same and to be quieted in the possession thereof.
    Accompanying this demand was an application for an injunction against Landry (based upon an allegation that he had trespassed upon the land and cut therefrom many hundreds of trees which were still on the property, and which he feared Landry would sell and remove, and upon an allegation that he had reason to believe continued depredation upon the property) to restrain him from further depredations, and particularly from removing any of the trees felled or the wood cut by him. The injunction was granted and issued as prayed for.
    Prior to the present suit plaintiff had brought a petitory action and had sued out another injunction restraining defendant from cutting trees on the land or hauling logs therefrom. That suit being still pending when the present one was brought was consolidated and tried with it. In this suit he fully set out his claim of title and further pleaded the prescription of one, two, three, four, five, ten, twenty and thirty years.
    Defendant set up title as acquired by him in good faith under the tax adjudication referred.to in plaintiff’s pleadings. That after the said adjudication he took bona fide corporeal possession of the property, and that he was still in possession of the same; that the adjudication vested in him is a valid and legal title; that it was made under a good and legal assessment, description and advertisement, and after the observance of all legal prerequisites of the law; he further pleaded, in bar of plaintiff’s demand, the prescription of two, three? and five years. He alleged that he had been damaged by the plaintiff’s maliciously sending men upon the land, who, under his orders, felled trees and cut logs thereon, and by the writs of injunction, in actual and punitory damages to an amount of five thousand dollars.
    The District Court dissolved the two injunctions which had been issued upon plaintiff’s application, sustained defendant’s plea of prescription, recognized him as the true and legal owner of the property sued for, and quieted him in the possession of the same.
    The plaintiff appealed.
   The opinion of the court was delivered by

Nicholls, C. J.

Plaintiff and defendant both concede that the land in litigation once belonged to James Dick, under patents for the same issued to him. Plaintiff claims that Dick’s title was vested in him through the various conveyances set out in his pleadings, while defendant maintains that Dick continued in the ownership of the property up to 1886, when he was divested of ownership by a tax sale made under an assessment of taxes on the property in the name of James Dix or Steck, and that at that sale he became the legal owner of the land by adjudication to him.

He contends that the slight variance in the name of the person assessed from James Dick to James Dix or Steck is immaterial; that the rule of “idem sonaras” covers the variance, and that even if his title was not absolutely perfect, he is protected by the prescription of three and five years. The court sustained the claims of the defendant under his plea of prescription. ' The court held that there being no recorded evidence of a change in the ownership of James Dick, the assessor was legally authorized and justified in assessing the property in the name of James Dick; that an assessment in the name of James Dix or Steck was sufficiently similar in sound to assessment in the name of James Dick to save the assessment and sale under it from being absolutely void, and that if any defect in the title arose from the difference in the names of the person assessed, it was cured by the prescription set up. The court further •declared that it was by no means satisfied that the title of James Dick was vested in the plaintiff, as the will of James Dick seems to have been lost, and that although his nieces, Mrs. Partee and Mrs. Wallace, appeared by proceedings dehors the will to have .been the legatees, the particular property left to each has not been fixed with certainty, and this particular property may have been bequeathed to Mrs. Wallace, not to Mrs. Partee. That there was no •evidence of record in the parish of Assumption of the shifting of Dick’s title to either one or the other. That under this condition of the record the assessor performed his duty in going back to the Dick title and making an assessment upon the faith of it, and in support of ■this proposition he cites the case of Prescott vs. Payne, 44 An. 656.

If in point of fact and law the property was legally liable -to assessment in the name of James Dick in 1885, the question would be a pertinent one, whether an assessment in the name of James Dix or Steck was sufficiently near to the real owner’s name to permit the assessment to stand, but if an assessment in the name either ■of James Dick, or of James Dix or Steck was illegal the question disappears entirely, and such was the case in this instance. It may •be true that the will of James Dick was never recorded in the books of the recorder of the parish of Assumption, and that therefore there was nothing to show that James Dick had died, or to whom his property had been transmitted, but there was evidence of record of a date later than Dick’s patents, showing that this particular property had been sold by Mrs. Sarah D. Partee, claiming to be the owner ■of the same under and through James Dick to Robert B. Brashear. The assessor should have stopped and acted upon this title, as the ■basis of his official action, and not gone back of it to the title of James Dick. It was no part of his duty, under the Prescott decision, ‘to call in question the verity of the statements made by Mrs. Partee .as to her ownership df the property. It was sufficient for his purposes to find Robert B. Brashear’s title of record, and to assess the property as his. Had he done so, the principle announced in Prescott vs. Payne could have been invoked in aid of the assessment. It has been repeatedly held by this court that the title of purchasers in good faith under recorded deeds and in possession can not be ■defeated by non-registry of an anterior deed, however remote. 'The property in this case were swamp lands, of which if Brashear >had never taken actual possession, so neither had James Dick. •There is no one before us claiming under a title through Dick, adverse to that of the plaintiff, who also acquired through Dick other than defendant, who goes no further back than to the assessment made in Dick’s name, years after he had died, and the ownership of the property was, in fact, as it was of record, in the name of other parties. These swamp lands were not habitable; Dick and those holding nnder him held the possession resulting from ownership. We are of the opinion that plaintiff has sufficiently made out his title. There can be no question that Mrs. Partee and Mrs. Wallace were relatives and legatees of James Dick. She declared herself as the owner of these particular lands under and through Dick, as far back as 1856, and disposed of them as owner by a title placed of record in the place where the lands were situated. The title of her vendee has never been attacked. If Mrs. Wallace had any rights in the property she has slept upon those rights ever since 1849, when Dick died. Mrs. Partee was in possession of the patents to the lands, and they passed from her hands to those of her vendee and from him to the plaintiff. This fact, coupled with the failure of Mrs. Wallace to advance any claim to this property, authorizes us to assume at this period of time, and for the purposes of this litigation against a person holding nnder a title such as defendant presents, that Mrs. Wallace had no claim, and that Mrs. Partee became the owner of the property under the will of James Dick. That title under the evidence is shown to be now vested in the plaintiff. There is no necessity to apply the rules of prescription in aid of plaintiff’s title, but simply the presumptions of ownership which flow from the facts stated.

The title of the property being, at the time of the assessment made by the assessor of the parish of Assumption, out of James Dick, and in that of plaintiff’s authors, it was not divested by a sale made under an assessment, either in the name of James Dix or James Steck. The prescription of three and five years do not cover such a case. We are of opinion that plaintiff is entitled to a judgment decreeing'him the ownership of the property claimed by him. We do not think ourselves in a position from the record to deal fully and advisedly with the question other than the ownership of •the property raised by the plaintiff and defendant, and are of. the opinion that the ends of justice will be best attained by remanding the ease for the purpose of decision on the respective claims advanced, and to reinstate, pending the investigation of the rights of parties and for further action thereon, the injunctions which were set aside by the District Court. For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment appéaled from be and the same is hereby annulled, avoided and reversed. It is now ordered, adjudged and decreed that the plaintiff be and he is hereby recognized and decreed to be the owner of the property claimed by him herein, and that he be placed in possession thereof. It is further ordered, adjudged and decreed that the two injunctions which were set aside in this litigation by the District Court be temporarily reinstated to await the action of the District Court upon the various claims other than that of the ownership of the property which are set up by plaintiff and defendant herein, and that the case be remanded to the District Court for further proceedings and for adjudication of the claims between the parties not covered by this judgment.


author: Nicholls, 0. J.

text:
    No. 11,668.
    Mrs. Oville A. Truxillo, Wife of C. Numa Folse, vs. J. Onile Delaune et al.
    A person who buys property affected by a recorded mortgage containing the clause de non alienando is legally bound and held to know that the holder o£ the mortgage claim under that clause is entitled, in case of default of payment, to enforce his rights as if the original owner still held the property; no notice need be given him. The fact that a subsequent purchaser may have personally assumed the mortgage does not affect the mortgagee’s rights.
    The mortgagee may proceed to execute his mortgage either via ordinaria or via execution. Levy vs. Lake, 13 An. 1035.
    APPEAL from the Twentieth District Court, Parish of Assumption Guión, J.

      It. N. Sims for Plaintiff and Appellant.

      Beattie <& Beattie for Defendants and Appellees.
    On January 12, 1878, by public act before L. U. Folse, notary, C. Numa Folse and Honoré Folse, purchased each an undivided half of the Pothier plantation from the heirs of Edward Pugh. A part of the price was paid cash, and a part on credit. For the credit instalments the purchasers executed and delivered their joint notes payable to their order and by them endorsed in blank, and secured these notes as to their payment, together with interest and attorney’s fees, by special mortgage and vendor’s privilege on the entire property purchased. The act contained the clause de non alienando.

    Subsequently to this purchase Oville Truxillo, wife of O. Numa Folse, became the owner, on January 8, 1885, by an act of exchange between herself and Honoré, of the undivided half of the property which had been purchased by him.
    Through this act 0. Numa Folse and his wife became joint owners of the plantation.
    In the act of exchange the indebtedness due by Honoré Folse to the heirs of Pugh was referred to, and Mrs. Oville Truxillo (Mrs. Numa Folse) assumed to pay the same.
    In June, 1893, Mrs. W. B. Ratliff, one of the original vendors, filed a suit in the District Oourt for Assumption on three of the notes, in which, ignoring Mrs. Numa Folse’s connection with the property or the debt, she sued 0. W. Folse and the heirs of Honoré Folse (the death of the latter being alleged) via ordinaria, praying for judgment in solido against all the parties; for the recognition and enforcement of the special mortgage and vendor’s privilege.
    0. Numa Folse confessed judgment, and judgment was entered up against him on the 9th of June, 1893, in conformity to the prayer of the petition; but the legal delays not having at that time expired as against the heirs of Honoré Folse, the case went over as to them. At a subsequent term, these heirs having been cited and the delays having then expired, judgment was rendered against them, ordering the property to be sold to pay the debt, and ordering each of them to pay his virile share of any deficiency in the price. Both of these judgments have become final.
    On the 11th of December, 1893, a writ of fi. fa. was issued in the suit, in which the two judgments were rendered, directed to the sheriff of the parish of Assumption, ordering him that by seizure and sale of the property, real and personal, rights and credits of 0. Numa Folse and the heirs of Honoré Folse (naming them), he cause to be made the amount of the judgments rendered “ to satisfy a judgment lately rendered against the said 0. N. Folse et al., in the Twentieth Judicial District Court of the parish of Assumption, in favor of Mrs. Elizabeth B. Ratliff, wife of W. B. Ratliff.”
    Under this writ the sheriff seized in its-- entirety, the property on which the special mortgage and vendoi-'s privilege rested, and under this seizure he adjudicated the same at public sale, after advertisement, to Onile Delaune, one of the defendants herein, on the 27th of January, 1894.
    ■ The purchaser took possession on the 29th of the same month of the plantation, but Mrs. Folse continued to reside in the dwelling house and to occupy the adjacent yards and enclosures.
    On the 24th of February, 1894, the present plaintiff sued out a writ of injunction by which the purchaser was prohibited from in any way interfering with her, she declaring herself to be in possession of one undivided half of the property.
    The grounds for the injunction are:
    That the sale made by the sheriff to Delaune was (so far as she is concerned) an absolute nullity; that she was not a party to the pro - ceedings or judgment in the matter in which the writ issued; that it directed the seizure and sale of the property of her husband and of the heirs of Honoré Folse, and not the seizure and sale of her property, and that in attempting to seize and sell the undivided half of the plantation which she owned, and of which she was in possession, the sheriff’s acts were dehors, the orders of the court, ultra vires, utterly illegal and unwarranted and in violation of her rights of ownership and possession; that she never gave her consent to said proceedings and sale, but constantly protested against the same, and the sale as to her undivided half was an absolute nullity and should be so decreed and she so prayed.
    2. That throughout said illegal and void proceedings the plaintiff in the suit in which the sale took place, the sheriff and the defendant Delaune acted tortiously, maliciously and wrongfully, with intent to injure the present plaintiff, with full knowledge of all the nullities in the proceedings — in bad faith and with the design of depriving her of the property by undue means and without due process, and she expressly charges Delaune to be a purchaser in bad faith.
    . 3. That at the time of the suit and of the sale her half of the property was unaffected by any claim of the plaintiff, Mrs. Ratliff, against the defendant in the suit brought by her (No. 3066), as the notes declared upon by her were at that time prescribed and barred’ by the prescription of five years and ten years, as to all the parties to said suit except as to her husband, 0. Numa Poise, and that neither she nor her property could be bound for the debts of her husband; that the failure of the defendants to plead said prescription did not and could not affect her rights, and that she was entitled to invoke and did invoke the same.
    Delaune, after pleading the general issue, admitted his purchase of the property in its entirety at the sheriff’s sale, and alleged that all the proceedings which led up to the sale, and the sale itself, were legal and valid. Alleging injury from the injunction, he reconvened, praying that in dissolving the same judgment might be rendered in his behalf against the plaintiff and the sureties' on the bond for twenty-five hundred dollars — five hundred dollars of the same being due for attorney’s fees.
    Mrs. Ratliff pleaded the-general issue and maintained the legality of her proceedings and of the sale made therein.
    The District Judge rendered judgment in favor of the defendants, against the plaintiff, dissolving the injunction, with three hundred dollars damages for attorney’s fees, and decreeing the defendant to be legal owner of the property purchased by him, and quieting him in the possession of the same.
    The plaintiff appealed, and defendant has filed a motion to amend the judgment by increasing the amount of the damages for attorney’s fees to five hundred dollars, and asking judgment for the rental of the house occupied by plaintiff, and the value of corn and hay taken and disposed of by her.
   The opinion of the court was delivered by

Nicholls, 0. J.

In his opinion the District Judge stated that Delaune, under the evidence, stood before the court as a purchaser-in good faith utterly untrammeled by any understanding or arrangements between other parties prior to or at the time of the sale; that the issues before him would have to be passed on from that standpoint, and that consideration of the relations of the other parties inter se was irrevelant, and unnecessary to be disposed of. We find-no error in his so holding.

Delaune being a purchaser in good faith we proceed to examine the questions of law before the court. Was the plaintiff, Mrs. Will--iam B. Ratliff, authorized legally to proceed against the property mortgaged, ignoring the transfer of a portion of the same to Mrs. Numa Folse, subsequently to the granting of the mortgage, and ignoring her being in possession thereof?

A person who buys property affected by a recorded mortgage containing the clause de non alienando is legally bound and held t.o know that the holder of the mortgage claim is entitled under that clause, in case of default of payment, to enforce his rights as if the original owner still held the property, and to know that in so doing no notice need be given to him. The fact that the subsequent purchaser may have personally assumed payment of the mortgaged debt dpes not affect the mortgagee’s rights if he elects not to accept the assumption of the debt.

This statement, as a general proposition of law, needs no citation of authorities in support of it. We have next to see whether there was any special circumstance in this particular case which would take it out nf the general rule.

The first fact connected with the proceedings to which our attention has been directed is that at the time of the institution of the suit of Mrs. Ratliff, Honoré Folse, one of the mortgagors, was dead. Did that fact impair the mortgagee’s rights springing from the clause mentioned? That question is not anew one; it has been several times asked and answered by this court in the negative. See Boguille vs. Faille, 1 An. 205; Lavillebeuvre vs. Heirs of Frederic, 20 An. 374; Aillet vs. Henry, 2 An. 145; Rowly vs. Rowly, 2 An. 209; Dupuy, Curator, vs. Bemiss, 2 An. 509; McCalop vs. Fluker’s Heirs, 12 An. 551; Randolph vs. Heirs of Chapman, 21 An. 486; Walmsley, Executor, vs. Levy, Executrix, and Levy, Executrix, vs. Raines, Sheriff (consolidated), 36 An. 226.

Were those rights waived or impaired by the mortgagor’s proceeding via ordinaria instead of via exeeutiva?

In Levy vs. Lake, 43 An. 1035, we affirmed the principle announced in Bienvenue vs. Insurance, 33 An. 218, in which the court said:

!i The holder of a mortgage importing confession of judgment is authorized. by law to proceed by executory process against the debtor’s property, and we can not see how any of his mortgage rights can be restricted by a judgment of a competent court condemning his debtor personally to pay the debt, and recognizing the mortgage rights. We understand, on the contrary, that by such a judgment the rights of the creditor are enlarged instead of being curtailed or abridged.” These decisions we think unquestionably correct.

Did the fact that the property was seized and sold under a. writ of fi. fa., instead of. a special writ of seizure and sale, have any effect upon the legality and validity of the sale? We think not. It is true that a writ of fi. fa. should not and could not legally issue in enforcement of a judgment against a succession, so as to authorize the sheriff holding the writ to seize generally the property rights and credits of the succession, independently of any question as to whether payment of the judgment, or the debt evidenced by it, was secured by mortgage or privilege on particular property; but objections to such a writ in the matter of the seizure of succession property are leveled, not at the form of the writ, but at the action of the sheriff under it. If creditor’s rights are secured by recognized mortgage on special property — by a judgment which would authorize the seizure and sale of the property nnder a writ specially directed to that effect — the debtor can find no just ground of complaint in the fact itself that the court’s authorization to seize and sell was broader than it was justified to give, if the actual seizure and sale made under the writ fell inside of -the particular seizure and sale which the judgment warranted. This question, like the former ones submitted, has been judicially passed upon. See Levy vs. Lake (just cited).

It is contended that, granting that the judgment obtained by Mrs. Ratliff could be legally enforced through and under writ of fi. fa., two writs were necessary to bring about a seizure and sale of the property ip controversy, inasmuch as there were two different judgments entered in the suit. It is maintained that the execution of each judgment should have been supported by separate writ.

The demand of the plaintiff was a single one; the two mortgagors were made parties defendant — 0. Numa Folse personally, and Honoré Folse through his heirs'. The unity or singleness of the demand was not broken by the fact that the case was “ tried ” at different times, as to the different defendants. When judgments were finally obtained against defendants in exact conformity to the prayer of the plaintiff, the case stood quoad its execution as if the different judgments had been rendered at one and the same time. All parties were bound by the judgments precisely as they would have been had the proceedings terminated in a single judgment. In both judgments, the mortgage was recognized on the entire property and ordered to¡be enforced.

It is advanced as a ground for the nullity of the sale of the property, so far as the undivided half of the property was concerned which belonged to Honoré Folse, and which was sold to Mrs. C. Numa Folse, that the notes upon which Mrs. Ratliff declared were, quoad Honoré Folse and his heirs, prescribed when she instituted her suit and that the present plaintiff is entitled to invoke prescription though not pleaded by the debtor and his heirs on their owe behalf.

The present suit does not involve, as it stands before us, any question other than the validity and legality of the sale made in execution of Mrs. Ratliff’s judgment. There is no issue as to any personal indebtedness of the plaintiff or of the heirs of Honoré Folse, and no> contest over the proceeds of the sale.

Was the sale as made legally authorized to be made? If the entire-property was legally subject to execution under the judgment against C. Numa Folse, the amount for which it was sent to sale becomes-immaterial in so far as the title of a purchaser was concerned. The title would pass under a thousand dollar judgment as completely as for a five thousand dollar judgment, if the proceedings were otherwise admittedly legal. We do not think that the question of the personal liability of Honoré Folse and his- heirs on the notes given by him and his brother plays any part in the determination of the legality of the sale made in this case.

It is undoubtedly true that the mortgage granted by Honoré Folse on the property purchased by him viewed from the standpoint of an accessory obligation supporting his own personal liability would fall if that personal liability were extinguished, but viewed as an accessory obligation supporting C. Numa Folse’s personal obligation it would be held in force so long as the latter’s obligation was in full force. A person can consent independently of any personal obligation on his-part that his property be mortgaged for the debt of another (Civil Code, 3295). When so given the obligation, whose continued ex--istence is essential under Art. 3285, Civil Code, to the continued existence of the mortgage, is that of the debtor whose debt it secures. Honoré Folse consented that his property be mortgaged not only to-secure his own debt3 but to secure that of his joint purchaser. The debt of the latter is conceded to be still alive and we need look no further for the purposes of this suit. The personal indebtedness of the brothers was joint, but the mortgage securing each debt covered the whole property and was indivisible. Bagley vs. Tate, 10 Robinson, 45; Chaffraix & Agar vs. Packard et al., 26 An. 177; Stewart, Hyde & Co. vs. Madame Buard, 23 An. 411; Walmsley vs. Levy, 36 An. 226; Lallande vs. McRea, 16 An. 193; Hughes, Administrator, vs. Patterson, 23 An. 680; Lee vs. Packard et al., 25 An. 397.

Plaintiff argues that to maintain the sale in this case would be to justify the sale of her property to pay the debt of her husband, which would be in violation of express law.

The plaintiff did not bind her property for the debt of her husband — she purchased it after the property was mortgaged by the person then owning for the debt of her husband. When she bought she did so cum onere — the creditors’ rights to foreclose and make available his mortgage were not in the slightest degree affected by the after acquisition of the property by the wife — especially so under the clause de non alienando.

We are of the opinion that the proceedings in the case were regular, and that the adjudication vested a legal title in the defendant, De-laune. We see no reason to amend the judgment.

For the reasons herein assigned it is ordered, adjudged and decreed that the judgment appealed from be and is hereby affirmed.


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    No. 11,676.
    Jos. Palmer vs E. C. Hightower.
    The proof not disclosing an intention on the part of the defendants either to defraud their creditors or to give an unfair preference to some of them, the judge of the District Court was authorized to dissolve the attachment.
    APPEAL from the Third District Court, Parish of Claiborne. Barksdale, J.

      John A. Richardson for Plaintiff and Appellant.

      McClendon & Seals for Defendant and Appellee.
   The opinion of the court was delivered by

Watkins, J.

This is a case of attachment, which was dissolved in the court of first instance, and from the decree dissolving the plaintiff’s writ he has appealed, other grounds being set up as incidental to the relief sought by the attachment.

In this court the defendant and appellee filed an answer requesting an increased allowance of damages, so that our judgment would give them twenty-five hundred dollars in lieu of the one hundred and fifty dollars awarded;

The amount sued for is twenty-five hundred dollars, represented by three notes for the amounts of eight hundred and forty-one dollars and sixty-six cents, eight hundred and forty-nine dollars and 'ninety-nine cents, and eight hundred and fifty eight dollars and thirty-three cents, respectively, an open account of fifty dollars and a claim for rent. Por the. last item a writ of provisional seizure issued, about which there is little or no controversy.

Preliminarily the defendants tendered an exception of prematurity, which was directed against the note for eight hundred and forty-nine dollars and ninety-nine cents and the one for eight hundred and fifty-eight dollars and thirty-three cents that went to maturity after the §uit was filed; and the attachment having been dissolved this excep - tion was, of course, sustained, the writ of provisional seizure not appertaining to the premature obligations.

The answer of defendants is a general denial, accompanied with a reconventional demand for a debt of one hundred and forty-five dollars and eighty-five cents and twenty-five hundred dollars damages, the amount of the open account being specially pleaded in compensation of plaintiff’s demand for rent.

The judgment was in favor of the plaintiff for one hundred and twenty dollars rent, less a credit of fifty-five dollars and fifteen cents, sustaining the writ of provisional seizure;. and in the further sum of eight hundred and forty-one dollars and sixty-six cents, non-suiting demand on the two notes not due.

It was in favor of the defendant on his reconventional demand for the sum of one hundred and fifty dollars damages, in addition to the aforesaid credit, and dissolving his attachment with costs.

On the score of the attachment the' testimony is brief.

It shows that prior to the first of July, 1893, plaintiff was conducting a livery stable in the town of Homer, in the parish of Olai-borne, and that the two defendants had a lot of mules which they operated in the building of levees and working on railroads. About that date, plaintiff made a sale of his business to the defendant, inclusive of his stock; and the defendants thereafter continued the business at plaintiff’s old stand, renting his stable for the remainder of the year. That on or about the 1st of December of that year defendants purchased the only compebing livery business in the town, and operated both stables up to the 1st of January, 1894; and at that date they concentrated all of their stock and vehicles at the stable they had purchased, and the plaintiff resumed business at his own premises, having declined to lease to the defendants for the current year. That shortly prior to the maturity of the first note, one of the defendants called upon Che plaintiff to ascertain whether he would want his money — stating that if they (defendants) paid the note “they would have to sell some mules.” That plaintiff replied “ that he would need some money about the 1st of January, and to go ahead and sell the mules.” That after one of the defendants had carried off for sale some of the mules the other “ inquired of the plaintiff what amount he would (be compelled) to have and (wanted to know) if he was going to push them;” and that “plaintiff told him he only wanted a few ¡hundred dollars to pay some accounts around town, and would let them go on with the other.” That immediately after this conversation one of the defendants went to Shreveport with a lot of mules and disposed of two, and returning home with the remainder of the lot notified the plaintiff of the result. That on the 10th of January following, one of the defendants started for an.adjoining parish with a lot of mules for sale, and plaintiff obtaining a writ of attachment had the lot of mules and other property seized.

With regard to the foregoing statement there is practically no controversy.

But the contention of plaintiff’s counsel is that, notwithstanding one of the defendants admitted having realized two hundred and forty dollars from the sale of mules in Shreveport, he declined to pay over the proceeds; and that, when subsequently other mules were sent out of the jurisdiction of the court, he had a right to presume defendant’s intention to have been fraudulent and sue out an attachment. On the other hand the defendants, in their answer, specifically aver that' “the allegations of the plaintiff’s petition, on which the writ of attachment issued, are false,” and the principal averment is that the acts complained of were intended “to defraud their creditors or give an undue preference to some of them.”

That the test df the truthfulness of an affidavit for an attachment under Code of Practice, Art. 240, Nos. 4 and 5, is that the act complained of was per se fraudulent, or was intended to defraud creditors, or to give an unfair preference to some of them.

In confirmation of the truthfulness of his affidavit the plaintiff introduced a witness who stated that about the date of the attachment he held a conversation with one of defendants about plaintiff’s claim, in which he said “ plaintiff had not come up to his contract, and they were not going to pay him until he did;” and made other similar statements indicative of an intention to avoid the payment thereof. This evidently occurred on the day the attachment was issued, because that witness said: ‘1 Something was said about the attachment being out. He said he thought plaintiff was not treating him right. That he was trying to beat (them) out of (their) stock,” etc. And he subsequently admits, on his cross-examination, that “this conversation took place about 9 o’cl :ek at night, and the stock was attached about 6 o’clock the same evening.” Hence this statement could have exercised no possible influence over the attachment issued previously, or have served as any justification of a seizure under the writ, in an adjoining parish on the following day.

One of the defendants explains that he did not get the cash for the mules he sold in Shreveport, but an order that was to be paid on his personal presentation to the drawee in Shreveport. And not only did that condition make it necessary for him to present that order, but other conditions required his presence there. That the attachment was sued out on the Wednesday following his interview with the plaintiff on Saturday; the following day being Sunday and Monday being a legal holiday, there was no opportunity for him to have collected his order, and for that reason he could not have paid to the plaintiff the proceeds of the sale of the mules prior to' the attachment. He says: “I returned Tuesday night and the attachment was served Wednesday evening about 6 o’clock.”

He states that he had no recollection of telling Denman (plaintiff’s witness) that he did not intend to pay plaintiff at all, but did tell him that he did not intend paying plaintiff “when some one else held the note,” another party having given him notice that he held the note. He further states that he had no intention of beating the plaintiff out of his claim. Says he: “ I could have done so very easily. I made no effort to keep the teams that were out from being attached.” He says the object of the trip to Ruston “was to sell mules to pay off the plaintiff,” etc.

The testimony of all the witnesses points in one direction and is in strict accord with the statements quoted from the evidence of the defendants, and it wholly fails to make out a case of fraud against them. Indeed, we take it to be clear from the evidence that the defendants made one sale of mules, and attempted to make another, under the belief that plaintiff had expressed his willingness that they might make such sales for the purpose of realizing means to make a partial payment on his first maturing note. And the statement is not controverted that defendants had been .notified that their notes were in other hands than that of the plaintiff prior to the time the defendants had collected their old orders fqr the price of the mules.

It is equally clear that plaintiff, in suing out the attachment, acted in good faith in the supposed exercise of his legal rights, though upon insufficient evidence to maintain same; and, consequently, his attachment was dissolved with only nominal damages.

The cause was tried and decided in the lower court by the judge of the vicinage, who saw and heard the witnesses, and our examination and appreciation of the testimony, in the record brings our minds to the same conclusion that he reached.

This is not a case for the allowance of any other than actual damages in favor of the defendants for the temporary inconvenience they suffered by the seizure of their property under the writ of attachment.

Judgment affirmed.


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    No. 11,687.
    The Parish Board of School Directors vs. City of Shreveport.
    The averment of the petition being that a municipal corporation had annually levied and collected a tax for school purposes, and thereafter budgeted and appropriated same for those purposes; and during a long series of years made disbursements therefrom for such purposes; but subsequently declined to make further disbursements therefor on the ground that the municipality had no power under its charter to levy such a tax, and the further averment being that the Parish Board of School Directors are entitled to demand-of and to receive from the municipality the funds thus actually levied, collected and deposited in the treasury — such petition discloses a cause of action.

      APPEAL from the First District Oourt, Parish of Oaddo. Taylor, J.

      ■T. C. Barret and Leonard & Thatcher for Plaintiffs and Appellants.

      M. S. Jones, Oity Attorney for Defendant and Appellee.

      Wise & Herndon of counsel.
   The opinion of the court was delivered by

Watkins, J.

Plaintiff prosecutes this appeal from a judgment of the District Oourt sustaining the defendant’s exception of no cause of action and dismissing its suit.

As this exception puts at issue the sufficiency of the allegations of the petition to justify a judgment in plaintiff’s favor in case same were substantiated by proof on the trial, we must examine and analyze them in order to test the correctness of the judgment sustaining the exception.

The representations of plaintiff’s petition are, that t^e defendant is indebted to it in the full sum of five thousand five hundred and fifty dollars and seventy-five cents, with interest from various dates mentioned during twelve years, from 1880 to 1892, inclusive, for this, viz.:

That during said twelve years the defendant, through its council and officers, appropriated for school purposes, annually, the various amounts set forth in a schedule that is annexed to the petition; and that the appropriations so made were duly placed on the city budgets, and adopted and published annually during the aforesaid period.

That the amounts so appropriated were, during said period, annually collected by the defendant, by means of an ad valorem tax on all property within the limits of the city of Shreveport, duly paid by the tax-payers of said city; and that from that source such amounts came annually into the treasury of the city.

That when said amounts so annually appropriated and collected came into the city treasury they constituted a fund that was consecrated to school purposes, which could not be legally diverted to other purposes, and that it was entitled to receive such amounts, in full, from said city, to be by it employed and used for the benefit of the public schools.

That it has received from the defendant portions of the aforesaid sums of money thus collected, leaving the remainder due as claimed herein.

That the entire amount so appropriated and collected by said city, less the amount of payments made, should be now in the eiiy treasury to 1 he credit of the public school fund, and should be paid over to the petitioner.

That a considerable portion of the amount so appropriated is now in the city treasury, and that a considerable amount thereof has been unlawfully misapplied by the said city to purposes other than those for which it was appropriated and collected.

That the mayors and comptrollers for said city, and every member of the various city councils in office during the aforesaid period of time, are indebted t.o the plaintiff in solido with the city for the amounts so appropriated and collected.

But the prayer of the petition is for citation to the city of Shreveport alone, and for judgment- against it for five thousand five hundred and fifty dollars and seventy-five cents, commanding it “to pay over to petitioner any amount now in the city treasury to the credit of the school fund.”

Aside from the declaratory part of the petition the averment is that the entire amount of money thus appropriated and collected, less payments made, should be in the city treasury at this time, to the credit of the school fund; and that, while a considerable portion thereof has been misapplied by defendant to other purposes, yet a considerable portion thereof is now in the city treasury to the credit of that fund.

The ground taken by defendant’s counsel is, that the imposition of a tax for the maintenance and support of free public schools has not been conferred upon the city of Shreveport by charter, which, alone, is the source and measure of its power. And this view being enter-, tained by the judge a quo, he held that, under its charter, the defendant was without authority to impose the tax in question, “and there being no authority granted in the city charter for the imposition and collection of a tax for school purposes, it follows that these taxes and their donation to plaintiff were wholly unauthorized, null and void, and conferred no right upon the Board of School Directors to compel their payment by a judgment of this court. It is therefore ordered that the exception of no cause of action be sustained and the suit dismissed.”

It seems quite evident that our learned brother of the District Bench has transposed plaintiff’s cause of action and placed effect instead of cause. This suit not being one to coerce the defendant to levy and collect a school tax, there is no question of its corporate power and authority to make a levy or collection involved. But, inasmuch as the allegation is that the defendant has already levied, collected and appropriated a tax for school purposes, and now refuses to pay over the balance of the fund on hand, notwithstanding various payments have been made out of same, it is difficult to see what the power of the defendant, under its charter, in respect to the levy and collection of the tax, has to do with the cause of action.

It may be conceded for the argument that the city was altogether without authority to levy or collect the tax in question; but having already levied and collected it, the plaintiff has undoubtedly the right to institute suit for its recovery for school purposes. For- . sooth, a tax that has been illegally or unwarrantably collected does not confer on the municipality the right to appropriate and use the fund collected at will.

The allegation of the petition is that by ordinances regularly adopted, the defendant annually levied a school tax, and caused same to be collected- and deposited in her treasury; and that same has been annually appropriated to school purposes, and partially disbursed for such purposes. But that plaintiff is now met by the defendant’s objection to make any further disbursements for school purposes, for the reason that, under the city charter, the defendant possessed no authority to levy and collect the tax at all.

In our conception it is of no consequence that the city charter conferred no such authority to levy and collect the tax. The taxes have been collected. The people have paid them without objection. The authority to tax is an accomplished fact. The funds are in the treasury and already destined to school purposes. This fund is a quasi-trust in defendant’s hands, for the use and benefit of the plaintiff.

Accepting this interpretation of the plaintiff’s allegations, we think its petition discloses a cause of action, and that the judgment appealed from is erroneous.

It is therefore ordered and decreed that the judgment appealed from be reversed and annulled; and it is further ordered that the cause be reinstated and remanded for trial — the defendant being taxed with cost of appeal, those, of the lower court to await final judgment.