text:
    No. 9794.
    J. G. Mercier et al. vs. Patrick Harnan.
    The best evidence must bo produced.
    A copy of a copy is not admissible in evidence unless the original is alloged and proven to bo lost, and that a copy thereof cannot be obtained. C. C. 2268, 2269, 2270, 2279, 2280 ; C N. S. 208; 2 Ann. 998; fi Ann. G83; 7N. S. 550; 5 N. S. 175; 13 L. 536.
    APPEAL from the Civil Distinct Court for the Parish of Orleans. TUghtor, J.

      James Timony & F. Mtchinard for Plaintiff and Appellee.

      Jos. H. & J. Z. Spearing, for Defendant and Appellant:
   The opinion of the Court was delivered by

Todd, J.

The plaintiffs sue to recover certain immovable property described in their petition, and to annul a tax title of the same, made to the defendant in possession.

The plaintiffs claimed to he owners of the property by inheritance from their mother, Henrietta Antoinette Corinne Smith, wife of Dr. Arm and Mercier. They deny that Dr. Mercier ever owned the property, though the same was assessed in his name, but aver that it belonged to Mrs. Mercier, and was donated to her by her mother at her mariiago, in 1837, and constituted a part of her dotal effects under her marriage contract, passed in said year, before two notaries, in Paris, France, where the marriage was celebrated.

There was no motion tiled to dismiss the appeal, hut the counsel for plaintiffs’ counsel suggest, in their brief, that this court is without jurisdiction rations matsriai, alleging that the value of the property is below the jurisdictional amount.

The plaintiffs, in their petition, allege the property to he worth, over $2100. The defendant, in his answer, alleges its value at $3000, and in this court has filed his affidavit asserting its value at said sum The evidence iu the record shows it was assessed at from $4000 to $4500 in different years.

The amount of its adjudication at the tax sale is no test of its actual value in the face of the above. We have jurisdiction of the cause.

On the trial the plaintiffs, to prove their ownership of the property in dispute offered in evidence an abstract from the records of the office of the Recorder of Mortgages of New Orleans, which purported to he the record of a copy of the marriage contract referred to, under which the mother of the plaintiffs acquired title to the property in controversy.

The admission of this record was objected to, subtantially, on the ground that it was not the best evidence, that it was but a copy of a copy, and offered without averment or proof of the loss or destruction of the original act or the copy thereof, purporting to be recorded aud without proof or allegation that another copy of the original could not he obtained.

This objection was overruled, and the record admitted, to which exception was made and noted.

The judge erred in his ruling. The objection embodied an elementary principle found in every work on evidence, and so completely consecrated by established jurisprudence as to dispense with any citation of authorities to support it.

This appears to he the sole evidence of the plaintiffs’ title to the property to he found in the record.

It is therefore ordered, adjudged aud decreed that the judgment of the lower court, which was in plaintiffs’ favor, he annulled, avoided and reversed, and that the suit he dismissed as of non-suit, at plaintiffs’ cost in both courts.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 9792.
    New Orleans Cotton Exchange vs. Board of Assessors et al.
    Proof that there has been a decrease in the values of buildings in the immediate vicinity of that, whose assessment is sought to be reduced by suit, and also a diminution in the rents of such property in the same locality, and proof likewise of extravagance in the construction of the building, so that such cost is not a proper test of its value when assessed, will justify a reduction of the assessment.

      APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      Ba/yne & Denigre for Plaintiff and Appellee.

      M. J. Gunning ham, Attorney General, W. JJ. Rogers, City Attorney, Wynne .Rogers and James Woise for Defendants and Appellants.
   The opinion of the Conrt was delivered by

Todd, J.

The object of this suit was to effect a reduction of the assessment on the Cotton Exchange building in this city. .The assessment complained of is that of 1885.

From a judgment of the district court reducing the assessment from $800,000 to $200,000, the State and city of New Orleans have appealed.

A similar case was before us last year touching the assessment of the same property for the year 1884-, reported in 37 Ann. 423. In that case the court declined to reduce the assessment. Among the reasons expressed for the conclusion thou reached were, substantially, that there was no proof that the cost for the construction of the building was particularly extravagant, none that the property had deteriorated in value, or that the owner would sell it for an amount less than its cost.”

In the instant case the omission of proof in the respects mentioned, and so essential to anything like a correct estimate of the value of the property has been abundantly supplied.

We have the testimony in the record of auctioneers and real estate agents and of the owners of real estate in the immediate vicinity of the Cotton Exchange, that there has been a steady decline in the values of piroperty in that locality of more than 25 per cent, and a still greater decline in the rents of property; and in addition to this it is shown that since the assessment of 1884, that there has been a depreciation in the stock of the company of at least one hundred per cent.

It was also satisfactorily proved that there liad been unnecessary extravagance in the construction of the building, and that, therefore, its cost was no proper test of its present actual value.

These considerations lead us to the conclusion that, upon the whole, there is no reason or just cause to disturb the judgment of the court of the first instance which reduced the assessment to $200,000 as before stated, and that judgment is therefore affirmed with costs.


author: Bermudez, C. J.

text:
    No. 9847.
    The State ex rel. Mrs. Hirsch, wife, vs. The Judge of the Nineteenth Judicial District, and the Justice of the Peace for the Sixth Ward, Parish of St. Mary.
    The Supreme Court, under Article 90 of tlxe Constitution, lias exclusive control and general supervision over all inferior courts. It alone can issue tlie remedial writs mentioned in that article.
    Other appellate courts may issue similar writs, but only in aid of their appellate jurisdiction.
    A prohibition issued otherwise by a district court to a'justice of the peace, is an absolute nullity. It ought to have been ignored and the justice ought to have proceeded, notwithstanding.
    A 'mandavws cannot issue to a justice wlio is willing to proceed, but who thinks himself prevented by superior authority from doing so. The prohibition having been annulled, tbe justice must proceed with the ease. ,
    ^^PPLICATION for Prohibition, Mandamus and Certiorari.
    P. F. Winchester for the Relatrix.
    P. IF. Mentz for the Respondents.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a proceeding against a district judge and a justice of the peace, charging the former with usurpation of authority and the latter with denial of justice.

The relatrix complains that the district judge lias issued a prohibition, forbidding the justice from trying a suit instituted before him, by her, the object of which was to prevent a third party from taking possession of a house of which, she claims to be the owner.

She further complains that she has called upon said justice to proceed with the trial of said suit; hut that he declined to do so, in consequence of the prohibition issued against him.

The relatrix charges that said district judge liad no jurisdiction to issue the prohibition; that it was not binding on tbe justice, who ought to be ordered to proceed to determine her case.

She accordingly prays for a certiorari to test the validity of the proceedings thus had, that those had before the district court be annulled and the said court prohibited from interfering with the justice, and that the latter be commanded to try her suit.

The facts do not appear to be disputed by the respondents.

Tbe district judge in bis answer admits them. He insists that the j nstice had no jurisdiction and that he accordingly was right in issuing' tlie prohibition. The justice iu his return pleads the prohibition in justification of his conduct.

The questions are of law only.

Article 90 of the present Constitution vests this Court with control and general supervision over all inferior courts, and with power to issue writs of certiorari, prohibition, mandamus, quo ivarranto and other remedial writs.

I'iie Constitution does not confer similcur supervisory jurisdiction on any other court, whether it be a district court or a circuit court; although it vests the other appellate courts with the power to issue like writs in aid of their appellate jurisdiction.

Those courts have therefore no power to issue any of those writs, when not m aid of their appellate jurisdiction.

In a case in which a certiorari had been asked, the city judge pleaded to our jurisdiction, asserting that he was amenable only to the. district court, to which appeals from his judgments could be taken.

We there held, in a considered opinion, that this Court has exclusive control and general supervision over all inferior courts, and t-liat it alone can issue to such courts the remedial writs mentioned in Art. 90, whether in appealable or unappealable cases. See State ex rel. Gas Light Co. vs. Judge, 37 Ann. 286.

This view of the case dispenses ns from passing on the question of lack of jurisdiction iu the justice’s court. Its incompetency could not vest the district court with a power denied it by the Constitution.

As the district court had no power to issue the prohibition, the justice was not bound to respect it. He ought to have ignored it and proceeded with the case. His transgression could not have been punished. State ex rel. Liversey vs. Judge, 34 Ann. 741 (746, VI.), and authorities cited.

This does not, however, justify a mandamus to the justice. The record shows that he overruled an exception to his jurisdiction and that, far from refusing to proceed with the case, he would have tried it unless for the prohibition, and that he is ready to hear and determine it.

There can bo no doubt that the prohibition being declared a nullity, and having thus.ceased to be an impediment in his way, and his tremor of martyrdom and incarceration being placated, he will try the case. It is not until, he shall have refused to proceed that the writ can be sought.

It is therefore ordered that the prohibition issued by the District Court for the 19th Judicial District, for the parish of St. Mary, he annulled to all ends and purposes, and that said court he prohibited from issuing any other similar writ to the justice of the peace for the sixth ward of said parish; and,

It is further ordered that the application for a mandamus against said-justice he dismissed.


author: Poché, J .

text:
    No. 9850.
    The State ex rel. Mrs. Anne Huyghe vs. F. A. Monroe, Judge Division C., Civil District Court, Parish of Orleans.
    The conduct of a district judge who enjoins an execution predicated on a judgment of the Supreme Court, on the ground, as alleged, that said judgment, from its terms and under restrictions placed hy the court which rendered it, is not yet executory, is not amenable to the charge that the inferior judge refuses obedience to the mandate of the superior court.
    It is competent for the district judge to consider such an allegation, and to act according to his construction of the true meaning of the judgment. His course will not be interfered with by mandamus.
    ^PPLICATION for Mandamus.

      Alfred Goldtlm’aite, for the Relatrix.

      Bayne <& Denegre and Braughn, Bucle & Dfnkelspiel, for the Respondent.
   The opinion of the Court was delivered hy

Poché, J .

The compaint of relatrix is that the respondent judge has illegally issued an injunction restraining the execution of the judgment rendered in her favor by this court in the case entitled Huyghe vs. Brinkman, reported in the 37th Annual Reports, p. 240, and she invokes, at our hands, a writ of mandamus, intended to coerce the respondent to rescind his order of injunction.

The district judge returns that in his opinion, and under his construction of the various dieta and decrees of this court in the premises, the judgment enjoined was not intended by the court to be executory at the present stage of the litigation between the parties, independently of the ultimate adjudication of Brinkman’s alleged good faith, which, under the law, and in accordance with our decree, was the condition precedent of his right of recovering moneys disbursed by him for taxes and improvements on the property in suit, and that therefore he deemed it his duty in equity and good conscience to enjoin the execution sued out by relatrix, with a view to consolidate all questions incident to, and depending upon, the fundamental question of title and good faith, which is now pending in a proper proceeding, between those parties.

Our examination of the record, and a mature consideration of the status of the litigation, have failed to show that the respondent has committed an error which would justify our interference-by mandamus, as suggested by the. relatrix.

Our conclusions in the case of the 37th Annual were that the nature of the action ivas possessory; that plaintiff in that case, relatrix here, was entitled to rents during the time that she had remained ejected at the instance of Brinkman, and that if the adverse possession of the latter had been in good faith, he was entitled to recover his taxes and “ whatever else he could properly plead in offset to the plaintiff’s claim for rent.” Hence we entered the following decree :

It is therefore ordered and decreed that the judgment of the lower court is reversed, and that the plaintiff now have judgment for the possession of the premises described in her petition, and for thirty dollars a month rent of same, from November 2, 1878, with five per centum interest from the expiration of each month, and costs of both courts, and that the case be remanded to receive proof of the matters above indicated, and counter-proof of the same for judgment thereon.”

The matters ‘‘ above indicated ” were the alleged good faith of the defendant Brinkman, and, as depending thereon, the amounts which he had disbursed for taxes and for necessary repairs, including his right to offset such amounts, if legally due, against the claim, judicially recognized, of plaintiff for rent.

The right of plaintiff to execute the moneyed judgment therein rendered in her favor was subordinated to, and made to depend upon the contemplated judicial determination of the matters “ above indicated,” and which were to that end referred to the investigation of the lower court.

It is not even pretended that the judgment was at that juncture ex-ecutory ; the very reverse is apparent from the inaction of relatrix, who did not call for an execution for more than eighteen months thereafter.

Now, has anything since transpired to legally vest it with that character 7

The record contains no proceeding which supplies an affirmative answer.

Under our order, the district judge tried the question of Brinkman’s good faith ; he decided it in his favor, and gave him a judgment for $1900, as an offset juro tanto to the amount allowed by our judgment to Mrs. Huyglie on her claim for rent.

On appeal, we reversed this judgment, not because Brinkman had failed, under the evidence, to make out his case of good faith and of the amounts of his disbursements; but because the nature of his alleged good faith necessarily involved a decision of the validity of his title to the property in suit, and because such a question could not be judicially discussed in a possessory action.

Hence, we expressly reversed all his rights in the premises for adjudication in a proper proceeding, which we indicated in the opinion, and which is naturally suggested, as the petitory action.

It, therefore, appears that'thus far, only two matters in this apparently interminable litigation, have been judicially set at rest, and these are:

1st. Mrs. Ilnyghe’s right of possession of the premises, and

2d. Her right to recover rent at $30 a month from November 2, 1878, up to the time at which she was restored to possession.

But nothing more is as yet judicially certain.

Now we are informed that the action which we have indicated is pending in the district court, and to that suit all matters have been relegated, including the right of relatrix to execute her judgment, subject or not, as the case may be, to an offset on the part of Brinkman.

In our last decree we said, in reference to that matter : A judgment in such an action will .take up the whole series of adverse claims,of title, of rents and revenues, and the incidental right of compensation for alleged necessary disbursements.” That language and other utterances, in our opinion, have, it seems to us, been correctly construed by the respondent judge.

Relatrix lays great stress on our supplemental opinion and decree, in which we refused to entertain Brinkman’s application for an order partially suspending the execution of the judgment for rent in her favor.

The pleadings before us did not present or even remotely involve the question of the character of the judgment, as to whether it was executory or not, hence we were powerless to dispose of such an issue at that time.

We said then, and we repeat now, that as a judgment it was final, • and that it was the property of Mrs. Huyglie, and as such, beyond our control or that of any other tribunal.

The practical meaning of Brinkman’s application, which we discountenanced, was a movement for an injunction without affidavit or bond and without an issue.

Bat in the present proceeding, tlie pivotal question involves that very point, and it was competent for the district judge in an injunction proceeding to consider the allegation that, under the restrictions placed thereon by the court which rendered it, the execution of the judgment depended upon future contingencies — and that is precisely the question which the present application places before us, in regular injunction proceedings.

We have noted the reliance of counsel for relatrix on that line of authorities which define the duties of inferior courts in dealing with mandates of their superiors referred or returned to them for execution. But this is not the case at bar. The respondent is not in the attitude of an inferior judge who even hesitates to obey the mandates of his superior. The whole extent and scope of his judicial action has been to ascertain in limine, the true meaning and judicial effect of a mandate emanating from his superior, and to order accordingly.

Tlie case falls within the principles considered in onr recent opinion in the case of the State ex rel. Sentell vs. Judge, 38 Ann. 3i.

We therefore conclude that relatrix is not entitled to the writ of mandamus.

It is therefore ordered that the writ herein prayed for ho refused at the costs of relatrix.


text:
    No. 9796.
    Mrs. A. H. Carter et al. vs. Madelaine Farrell et al.
    A simulated sale is no sale. It is an absolute nullity. So where such pretended sale is even in tbe form of an authentic act or of a judicial sale, if it is accompanied by a counter-letter, or tbe possession of tbe alleged purchaser is precarious or not continuous and complete, a judgment creditor of tbe vendor may disregard tbe apparent title and seize directly, and if enjoined may, under proper pleadings, show by written or oral evidence tbe simulation charged.
    As a general rule amendments to tbe pleadings should always be allowed in promotion of justice, where they do not ohange tbe issues nor cause delay.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      A. II Billings and II. G. Harris for Plaintiffs and Appellees:
    When a person is in possession of real estate under an act, not void on its face, the question of fraud and simulation cannot be inquired into collaterally by commencing with a seizure, but the seizing creditor must resort to the revocatory action. Barbarin vs. Saucier, 5 N. S. 361; Weeks vs. Flower, 9 La. 385; Morton vs. Crosby, 14 La. 426; Kirkland vs. Bank, 1 Ann. 300; McAdara vs Soria, 31 Ann. 862; Willis vs. Scott et al., 33 Ann. 1027; Majors vs. Dennis, 35 Ann. 336; Johnson vs. Kingsland et al., 38 Ann. 249.

      The revocatory action nor any evidence to sustain it can be offered without allegation of insolvency of debtor. TTieman vs. Cendran, 34 Ann. 847; Long vs. Klein, 35 Ann, 384.
    Pleadings cannot be amended after case has been called for trial. Case vs. Watson, 22 Ann. 351; Spyker vs. Hart, 22 Ann. 534.

      B. B. Formcm for Defendants and Appellants:
    A simulated title, even in the form of a judicial sale, may be disregarded by the judgment creditor of the real owner of the property, and the creditor may seize the property, and when enjoined may plead and prove the simulation by counter-letter or other sufficient evidence. Kimble vs. Kimble, 1 K. S. 633; Weeks vs. Elower, 9 L. 385; Hiriart vs. Boger, 13 L. 126; Cammack vs. Watson, 1 Ann. 135; Spurlock vs. Manier, 1 Ann. 306; •Tonau vs. Dreux, 1 Ann. 364; Hobgood vs. Brown, 2 Ann. 323; Lindeman vs. Theobalds, 2 Ann. 913; Clark vs. Bank, 3 Ann. 326; Oglesby vs. Drake, 3 Ann, 640; Dawson vs, Holbert, 4 Ann. 36; Erwin vs. Bank, 5 Ann, 1; Hughes vs. Winfrey, 5 Ann. 668; Maxwell vs. Mallard, 5 Ann, 702; Emswiier vs. Burham, 6 Ann. 710; MoMasters vs. Place, 8 Aun. 431; Dosson vs. Bieller, 10 Ann. 570 ; Simpson vs. Mills, 12 Ann.,173; Scully vs. Kearns, 14 Ann. 436 ; G-leises vs. McHatton, 14 Ann. 560; Austin vs. Da Bocha, 23 Ann. 46; McAdam vs. Soria, 31 Ann. 865; Willis vs. Scott, 33 Ann. 1026.
   The opinion of the Court was delivered by

Todd, J.

The plaintiffs having seized under a judgment against W II. Finnegan certain immovable property in the city of New Orleans, described in the pleadings, the sale of it was enjoined by Delia Farrell, who claimed to be the owner of it.

In the answer to her petition, plaintiffs denied her ownership of the property. They further averred, substantially, that the property was originally bought by the judgment debtor, Finnegan, and paid for with his own money on the 29th of May, 1875, but that he caused the title to be made to the third opponent, who lived with him at the time as his concubine. That this conveyance to her'was a pure simulation, and that she* executed and signed a counter-letter acknowledging the simulation, and that the real title was in Finnegan, which counter-letter was subsequently stolen and destroyed by her.- Furthei, it was averred that Finnegan caused Delia Farrell to make a conveyance of the property to one Swinney, and subsequently had the property sold under a foreclosure of the special mortgage retained for a part of the price, and again bad the naked title put in the name of this third opponent in the sheriff’s deed, though Finnegan was the real owner and all the time in possession of the same.

There was judgment in favor of the third opponent, and plaintiffs have appealed.

On the trial of the cause, plaintiffs offered proof of the simulation charged, both with respect to the deed made to her in May, 1875, and the subsequent one at the sheriff’s sale in May, 1877, and offered to prove the execution of the cownter-lelter and its destruction. This evideuce was rejected by the judge on objection made, substantially, to the effect that the third opponent having exhibited title to the property— the sheriff’s deed — and possession under it, that it could only be attacked in a direct action, and that a direct seizure could not be made of the property in disregard of her title, and proof of its simulation offered collaterally.

In the argument of couusel, it was stated that the judge a quo was governed in his ruling on this question of evidence by the authority of Willis vs. Scott, 33 Ann. 1026.

We think he has extended the doctrine of that decision beyond its true Emits.

We there laid down the general rule that immovable property held under a title translative of property, accompanied by actual delivery and continuous possession and control as owner, could not be directly seized by a creditor of the transferror\ but we clearly indicated that for the application of this rule it was necessary that the possession and control should be “perfect and complete,” and when there was any interruption or infirmity or ambiguity of the possession established, which tended to rebut the presumption of ownership and create an indicium of simulation, the rule would not apply.

We think in this case the evidence sufficiently shows such defect in the possession of the transferree — it appearing that Finnegan continued to administer the property, to rent it and collect the revenues, and though he acted as the assumed agent of his transferee generally, he did not in all cases observe even this precaution.

But we think it still more clear that the authority referred to does not apply where the transfer of the property was accompanied by a counter-letter. Such a document, if establishing clearly the simulation of the transfer, utterly destroys the effect of the transfer between the parties and makes it as if it had never been passed. It takes away all the reasons which support the general rule laid down in Willis vs. Scott, and leaves it entirely without application.

The rejection of evidence to prove the existence and contents of such a counter-letter, and its fraudulent destruction by the transferee, was error.

And in this connection, without deciding whether, under the peculiar circumstances of this case, it was necessary for the defendant — the seizing creditor — to allege injury to himself by this transfer, we think the judge a quo was clearly in error in rejecting the amended answer of the defendant, in which such injury was clearly charged by the averment, in substance, that it was the only property of his debtor out of which his j udgraent could be satisfied. Thus concluding, the case must be remanded.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and the case remanded to be proceeded with according to law and the views herein above expressed; the cost of appeal to be paid by the third opponent, and of the lower court to abide the issue of the cause.


text:
    No. 9733.
    Mary J. Ashby vs. Joseph S. Ashby et als.
    An action can only be brought by one having a real and actual interest which he pursues.
    So where one claiming to be a judgment creditor of another, seeks to annul a mortgage executed by the latter in favor of his children, on the ground of fraud, and the record shows that the judgment, on which the suit is founded, is not in favor of the plaintiff but in favor of her minor children, for whom she was tutrix, and who had obtained their majority before the action of nullity was brought, and they do not join in the action, the suit must be dismissed.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.
    J. S. & J. T. Whitalcer and Chas. 8. Bice, for plaintiff and Appellee.

      A. J. Lewis, for Defendants and Appellants :
    The liquidation and adjudication to the surviving parent of the shares of the minors in the community may render a settlement of tutorship useless and unnecessary. In such cases there is no prescription of four oi ten years. 5 Ann. 598; 21 Ann. 643; 23 Ann. 17; 25 Ann. 612; 30 Ann. 673; 34 Ann. 1041; 37 Ann, 121; 38 Ann.
    The inscription of the liquidation suffices. 35 Ann. 943.
    To make a mortgage fraudulent two things are necessary, the intention to defraud and actual loss; and the insolvency of the mortgagor must be brought home to the mortgagee. 4 L. 256; 18 L. 388; 2 B. 92; 4 B. 408 ; 24 Ann. 158; 38 Ann.
    A contract in good faith cannot be annulled, though injurious to creditors. O. C. 1978, (1973); 1 B. 527 ; 2 B. 299 ; 11 B. 493, 533 ; 12 Ann., 429.
    The constant verbal and written recognition by the father of his children’s claim s, is a constant interruption of prescription. 34 Ann. 752.
    A mortgage is indivisible and must be annulled in toto, or not at all; therefore, all parties thereto must be legally cited. One party thereto, an absentee, cannot be brought into court by citation upon fcbo lawyer who bad accepted the mortgage for her, but whose. authority to stand in judgment for her, is neither alleged nor proved. 38 Ann. 232.
    The imputation of payment by the creditor must be accepted by the debtor. 15 Ann. 52G. Tt must be made at the time ot payment and not afterwards. 2 Aim. 24; 3 Ann. 351.
   The opinion of the Court was delivered by

Todd, J.

This is a suit instituted by plaintiff, claiming to be a judgment creditor of the defendant Joseph II. Ashby, to annul a mortgage executed by him in favor of his children — co-defendants—which is charged to be fraudulent and intended to secure an unjust claim against him in their favor to the prejudice of the plaintiff’s rights. The defendant excepted on the ground that the petition disclosed no cause of action.

Following a vicious practice that prevails to some extent throughout the State, this exception, though determinable on the face of the papers, was referred to the merits.

The answer is in part, substantially, explanatory of the exception of no cause of action, giving specifically the facts- or reasons why the plaintiff cannot maintain the suit.

Prom a judgment in favor of the plaintiff annulling the mortgage assailed, the defendants have taken this appeal.

It appears from the pleadings and record :

That the plaintiff has no moneyed judgment against the defendant Joseph II. Ashbey, on the faith of which she seeks the annullment of the mortgage. This judgment, which is referred to in the petition, is not a judgment in favor of the plaintiff, but one in favor of her children, to whom she was at one time tutrix.

It further appears that, when this suit of nullity was instituted, these children had attained their majority, and one of them had married, had children and died.

It is not alleged or proved that the plaintiff ever acquired from her children this judgment or any right thereto, and the parties owning the judgment are not parties to the suit, or in any manner represented therein, but the plaintiff sues alone and in her personal capacity.

It follows, therefore, that plaintiff has instituted and prosecuted a suit in which she has no personal interest whatever, and in which she does not represent the real parties in interest.

An action can only be brought by one having a real and actual interest which he pursues. C. P., Art. 15; Corral & Co. vs. Towboat Co., 37 Ann. 803.

Tt is therefore ordered, adjudged and decreed, that the judgment of the lower court be annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered, it is further ordered, adjudged and decreed that the suit be dismissed at plaintiff’s costs in both courts.


text:
    No. 9779.
    Thomas H. Handy et al. vs. The City of New Orleans et als.
    Tax-payers liave a standing in court to contest upon proper charges, the validity of a muni, cipal ordinance and contract executed under it, whenever its enforcement may increase tlio burden of taxation.
    A disti let court, the lower limit of whose jurisdiction is fixed, has jurisdiction to pass upon such controversy, when the matter in dispute, which is the value of the contract, exceeds that limit, and the Supreme Court has jurisdiction, on appeal, when that value exceeds two thousand dollars.
    A petition of taxpayers discloses a cause of action, which charges that a municipal corporation has, in excess of its powers and in violation of prohibitory provisions in its charter, passed an ordinance under which a contract of lease was entered into.
    Courts of justice have the right to sanction and to determine such controversies, but in the exercise of that power ought to act with great caution and have due regard for the legal discretion with which the Legislature may have clothed such corporations, which are in reality, State functionaries, whose acts must be respected whenever they are done in furtherance of delegated authority.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Kennard, Howe <G Prentiss and White & Sounders, for Plaintiffs and Appellants.

      W. 8. Benedict, Bayne & Denigre and Pcvrrar & Kruttsehnitt, for Defendants and Appellees:
   The opinion of the Court was delivered by

Bermudez, C. J.

This cause comes up on an exception, to he determined on the face of the papers.

It is an action brought by three resident taxpayers of New Orleans, in their own behalf and in that of all others similarly situated, for the annulment of a municipal ordinance and of the extension of a lease, made under it, of the wharves on the river bank, in favor of certain named parties.

The city and the lessees were made defendants and a number of citizens intervened, joining in the demand.

• An elaborate petition guardedly and sharply drawn, sets forth the gravamen of the complaint substantially, to be :

That the city has violated the mandatory provisions of her charter, in disregarding the forms prescribed as conditions precedent, sine quibus non, for tbe letting or farming out, of tbe wharves in question, ■namely: In not having invited competition by publication or otherwise, or at least in fixing excessive wharfage rates, which are destructive of the interest of commerce aud of the inhabitants, and which enable tlie lessees to realize annually a profit nearing |100,000, and in not imposing obligations sucli as the construction and repair of sheds, etc., which would, if exacted, redound to public welfare.

The petitioners further aver, that other parties have made to the city more liberal offers; that they themselves have proposed to accept the lease on more advantageous terms to the city and less onerous on the commercial community, one of them going so far as to tender a bonus of $75,000 to the city to secure a preference; that had competition been permitted, the leasing might have been made with wharfage rates at least ten per cent lower, to the great benefit of the commerce and business in New Orleans and of petitioners and of other taxable inhabitants; that the offers, proposals and tenders aforesaid were not considered and were ignored.

The petitioners further allege that the matter in dispute exceeds $5000, and that the interest of each exceeds $2000.

Upon these averments an injunction is prayed for to prevent the execution of the lease, which had not yet begun to run, and a judgment is asked annulling the ordinance and new lease, and perpetuating the injunction.

The lessees excepted, pleading want of capacity in plaintiffs, misjoinder and no cause of action. The city urged like exceptions, save that of misjoinder.

The district judge declined the’ writ, and dismissed both the petition and intervention.

He considered that it does not appear that the plaintiffs, or either of them, have a sufficient pecuniary interest to maintain their action in any court the jurisdiction of which is limited to a specific sum.

He further considered that, even if plaintiffs have shown such interest, the petition discloses no cause of action.

The plaintiffs appeal.

The record does not show that any plea to the jurisdiction was filed and sustained ; but here, certain counsel for the defense admit formally, while the others deny absolutely, any jurisdiction in the lower court, and a fortiori in this court, over tfie controversy, even if a cause of action be disclosed.

I

The first question to be determined is whether the plaintiffs have a standing in court.

It is unnecessary to indulge in any discussion of the long-mooted, but now apparently settled question: Whether taxpayers, or even one of them, have a right to contest judicially, as plaintiffs, the validity of municipal ordinances, at which they level the charge of illegality, for any cause.

The sedate doctrine, after much contrariety of opinions and considerable vascillation among the courts, seems to be: That the right of property holders, or taxable inhabitants, is recognized, to resort to judicial authority to restrain municipal corporations and their officers, from transcending their lawful powers, or violate their legal duties, in any unauthorized mode which will increase the burden of taxation, or otherwise injuriously affect taxpayers and their property; suchas an unwarranted appropriation and squandering of corporate funds, an unjustifiable disposition of corporate property; an illegal levy and collection of taxes not due or exigible, etc. We accept this conservative doctrine.

The recognition of that privilege is predicated on the principle, that it is proper that those who may be immediately affected by the abuse, should be armed with the power to interfere, directly and at once in their own name, in a mode which affords an easy, prompt and adequate preventive relief against an evil which might otherwise entail irremediable wrong.

The exercise of that right or privilege is the more justified when the law does not vest a State or an officer with the power to seek redress.

In such instances the action is regarded as having a public character and as being a public proceeding in which the public complains. Crampton vs. Zabrinski, 101 U. S. 601; New London vs. Brainard, 22 Conn. 552; Baltimore vs. Grill, 31st Md., 375; 97 Ind., 1; Cooley on Tax, 548; Dillon on Mun. Corp., 914 to 937, and authorities in notes.

Our legislation is silent on this subject. Hence, taxpayers enjoy the prerogative of protecting themselves by their own act in proper cases. This conclusion is fortified by additional considerations suggested by the instant case itself, which will now be developed.

Let it be supposed that the city authorities were to consider the ordinance and lease attacked as ultra vires, and the corporation was judicially to demand their annulment, could the lessees, for one moment, be heard to except to the want of capacity of the city, to ask relief and to object to the jurisdiction of the court 7

Unquestionably not, for two obvious reasons, that a party to the contract has the undeniable right to demand judicially its annulment for a proper cause, and that in such a case a court of limited lower jurisdiction, but unbounded otherwise, would surely be competent to pass upon the validity of a contract of a value far in excess of the jurisdictional initial point.

In this case the execution of the ordinance under the lease is stated as yielding a profit nearing annually $100,000. The contract which is the matter in dispute, clearly exceeding $2000, the lower court and this court have jurisdiction over it.

It is quite apparent that in such a case had the lessees been cast, they would indisputably have had the right to appeal, and so of the city if defeated. The law in this regard cannot, and does not, discriminate between litigants by denying to the one what it accords to the other.

If the taxpayers have the privilege of doing that which the city could have, but has not, done, and if the lessees could have appealed, it would indeed be monstrous to say that the plaintiffs are denied the same privilege.

It is true that the plaintiffs have not alleged in explicit terms that, owing to the charged violations of the law by the city authorities, the burden of taxation which Ihey and other taxpayers are required to bear will be increased, and that they will be injuriously affected thereby beyond measure, but the plaintiffs have done what is equivalent to it, and what is an unavoidable corrollary.

They have stated facts, which, if true, may, and no doubt do, materially cripple to some considerable extent, the commercial business of the city and deprive the city of important revenues which otherwise might be raised by taxation, both on property and persons in the shape of taxes on stock in trade or of license.

The right which the city could have, but has not exercised, the taxpayers can therefore judicially champion and vindicate in proper cases, just as fully and effectually as though the corporation itself had brought the action.

Hence the plaintiffs have a standing, and both courts have jurisdiction over the contention.

An expression of opinion on the lack of competency in the lower and in this court, was deemed necessary to enable us to pass on the merits of the exception of no cause of actiou.

The plea of misjoinder is mentioned here merely to show that it was noticed and considered.

It is impossible to perceive on what it rests.

The plaintiffs had a right to come together, and the intervenors had a right to join them. The defendants are the city, and the lessees were necessary parties, and had to be brought in.

¡II.

The second and only next question is : Whether the plaintiffs have set forth averments sufficient to justify the annulment of the ordinance and of the lease attacked.

.The grounds relied on are simply : That the city has refused or failed to invite competition, lias fixed most onerous wharfage charges, lias leased the wharves as a whole, and not in sections, and has not imposed obligations which ought to have been exacted; and that it has thus inflicted injury on the commercial welfare, on petitioners and other taxpayers.

The serious charge is, after all, that the city has maladministered the public thing respecting the lease of her wharves.

Under such a complaint can the petitioners be heard ".

If it could be questioned whether the city, in the exercise of the police power, which is inherent in all municipal corporations — could build and keep wharves and exact compensation for the use of the. facilities derived from them by those enjoying the same ; or, convey and transfer unto another that right — all discussion on the subject would be at once hushed by the positive and express delegation of authority in that respect, made to the city by the sovereign, in the charter under which she breathes, moves and acts.

The eighth section provides, that the Council shall have the power to prescribe and collect wharfage and levee dues and erect sheds over the wharves and buildings to protect merchandise and to make such charges therefor as will pay for the construction, keeping in repair, lighting and policing of such wharves mid sheds, mid no more.

The charter also provides that the city may lease or farm out the wharves and landings in section for a period not exceeding ten years, to such persons as will bind themselves, with security, to construct aud keep in good repair such wharves and landings, and construct and keep in repair sheds over the wharves, and light the same and pay for the cost of policing the same for such just and reasonable charges on vessels aud merchandise, or either, for the use of the wharves and sheds, as may be fixed in advance by the Conncil, and with such specifications as may be required by them.

. Tt is apparent that the city was formally vested by the Legislature with the power of administering by herself or by the agency of others, the wharves and landings dedicated to commerce.

There can be no doubt, then, that wliat the city has done in this regard, iu the exercise of the police power can no more be questioned than if the State herself had acted directly.

The acts of the State functionary in furtherance of delegated authority, become the acts of the sovereign.

It is claimed, however, that where a municipal corporation is empowered to impose a wharfage charge, as a compensation, for keepiug the wharves in a proper condition, for the safe and expeditious shipping and landing of merchandise, a court will not undertake to fix any limit to the amount which the municipal authorities may exact for that purpose.

In support of that doctrine reference is made to the case of First Municipality vs. Pease, 2 Ann. 538.

An examination of that decision shows that the question presented and determined, received full consideration.

After dilating on the dire consequences which, it was apprehended, were to flow from the municipal acts charged against, the Court said :

“ The remedy for this can bo liad elsewhere than from the judicial power. With more enlarged views of public policy, the electors may apply at once a remedy to the evil, or the Legislature itself may confine the exactions of the municipalities, within fixed reasonable limits.”

The correctness of the ruling and the soundness of the views sup- . porting it are not questioned, but the material fact on which the same rest, must not be lost sight of.

The provisions of law considered and expounded, placed no restraint on the municipal corporation and left the exercise of the powers delegated exclusively dependent on its discretion and sense of justice and propriety.

The section of the charter (Sec. 20 — 1836), enumerated the powers vested in the City Council, the first of which was “ to fix a uniform rate of wharfage to be paid by ships, steamboats and other crafts mooring in front of all parts of the city.”

But that legislation did not long survive the ruling made in 1847, for, in 1850, the consolidation charter placed a restriction requiring that the rate be a fixed sum for each day the crafts would remain in port.

This was not altered by the supplementary charter of 1856, but in the charter of 1882, No. 20, p. 21, Sec. 8, it is distinctly provided that, while the Council may farm out the wharves and landings, they can do so only on such just and reasonable charges and specifications as will pay for the construction, keeping in repair, lighting and policing of such wharves and sheds, and no more, and as they may fix in advance.

However correct the doctrine be which was announced in 2 Ann., it cannot be applied to a case like the instant one, in which a shackled municipality is arraigned for disregard and violation of prohibitions placed on the exercise of certain administrative powers with which it is vested.

The plaintiffs charge that the lease in question was granted without competition ; that the wharfage rates fixed are unjust and iunreasonable ; that the wharves ought to have been farmed out by sections and not as a whole; that the obligation of constructing sbeds and keeping them in repair was not exacted, etc.

The district judge did not pass upon the sufficiency of the allegations of the petition to warrant the judgment sought. He held that the plaintiffs could not ho heard, first, because the court had no jurisdiction, and next, because tbe court cannot go behind the ordinance and inquire into the validity of the lease.

We cannot pass presently upon the sufficiency of each and every allegation of the petition, but will say that, if tbe plaintiffs succeed in establishing them all, or one or more sufficiently to justify the annulment of the ordinance and contract under it, they will be entitled to judgment, because, surely the petition discloses a cause of action in at least one of its averments, and the courts have the power to sanction and determine an inquiry into the right of a municipal corporation to transgress mandatory prohibitions, or provisions of its charter, touching the administration of its affairs.

In thus holding, we think it proper to say that courts, in passing upon such matters, ought to do so with great caution and due regard to the legal discretion which the sovereign may have vested in such corporations.

Under the circumstances, a trial on the merits becomes necessary.

It is therefore ordered and decreed that the judgment appealed from he reversed ; and it is now ordered and decreed that the exceptions filed to the petition of plaintiff's he overruled, and that the defendants he ordered to join issue by answer, and that the case he remanded to the lower court, to he further proceeded with according to law, the. costs of appeal to be paid by the appellees, and those of the lower court to abide the final result of the case.


author: Roché, J.

text:
    No. 9876.
    Jack Hite et al. vs. Hinsel & Tallieu et als.
    The Supreme Conrt oannot and will not exercise jurisdiction in all cases uot excepted by tbe Constitution, unless it appears affirmatively from' the pleadings that tbe matter in dispute involves an amount exceeding two thousand dolíais.
    The burden of proof is not on the appellee to show want of jurisdiction, but on the appellant to prove the existence of jurisdiction, as deñued in the Constitution.

      Iu an action looking to the fixing of "boundary lines, it is incumbent- on the appellant to show that an amount is therein contested exceeding two thousand dollars, in order lo maintain his appeal here.
    APPEAL from the Twentieth District Conrt, Parish of Assumption. Beattie, J.

      W. IS. Howell and Walter Guión, for Plaintiffs and Appellants.

      O'SuUwam, & Blalce, for Defendants and Appellees :
   The opinion of the Court was delivered by

Roché, J.

Plaintiffs in an action to settle boundary lines between their lands and those of neighboring owners, are appellants from a judgment dismissing their suit on an exception of misjoinder of parties.

Appellees suggest our want of jurisdiction in the premises on the. ground that the amount in dispute, if any is at all disclosed in t.he pleading's, is far below the lower limit of our jurisdiction.

It appears from the petition, that a former plantation, having been subdivided and parceled out, is now owned in parcels by a large number of different owners, among whom are the parties to this suit, and that the respective owners have been in possession since the, date of their respective purchases, in accordance with a map or phut made in 1871, by a competent surveyor.

Now, plaintiffs, alleging that the metes and hounds of said lots having since become obliterated, and being no longer visible, bring this action for the purpose of settling said lines by some legally licensed surveyor, under the appointment and control of the court.

No moneyed demand is contained in the petition, no suggestion is even made of a possibly contested line between any of the various owners of the twenty-five lots into which the original plantation was subdivided, or of any demands by any of the owners for more land than he now possesses.

The pleading's, therefore, contain no allegation or averment of any matter in dispute, on which a calculation of a pecuniary contest can possibly be based. Hence, we must conclude that, the ground on which we can exercise jurisdiction is not apparent.

We have more than once said that in a boundary action the real amount in dispute was the value of the land contested, or included between the contested lines. Lombard vs. Belanger, 35 Ann. 311; State ex rel. Levet vs. Lapeyrollerie, 38 Ann. 264.

But in this case there are, no lands in dispute, and even no lines contested.

Tn the Loin hard case, we intimated, and it can he easily understood, tliat. the value of the lauds included between the contested lines can be materially affected, and greatly increased by the changes wbicli the establishment of new lines could or might require iu the nature of the removal of buildings or fences, or the change of ditches or canals, but no such element enters in this case, where no possible contest about lines is even intimated or suggested in the petition.

We are referred to an affidavit made by plaintiffs, who therein stale that their pecuniary interest in the controversy exceeds two thousand dollars.

But this is merely their opinion or appreciation of remote contingencies, and it finds no support whatever in any of the allegations or averments contained in their petition.

We can but repeat here what we have previously said touching a similar contention :

“ But no allegation and no affidavit can create an appealable amount of interest in a litigation which, from its very nature and essence, presents an issue involving no pecuniary loss to the parties in the suit.” State ex rel. Police Jury vs. Miscar, 34 Ann. 834; Buddig vs. Baldwin, 38 Ann. 394.

The jurisdiction of this court is defined by the Constitution, and under its direction the court cannot and will not assume jurisdiction unless the same appears affirmatively from the pleadings.

It is therefore ordered that this appeal be dismissed.


author: Watkins, J.

text:
    No. 9628.
    Charles H. Reed vs. His Creditors.
    1. In caso property subject to liens, privileges and mortgages iu favor of the State íor laxes, has "been surrendered and sold by the insolvent, and said liéns, privileges and mortgages canceled by judgment of court, and the same refeired to the proceeds, the tax collector has authority to direct claim for the proceeds, and to assert it judicially, if not allowed otherwise.
    2. A tax colleotor has the right and capacity to stand in judgment in injunction suits, and even to institute suits, in the name of the State, whenever the taxes cannot be collected otherwise, or when it is evident a seizure would occasion an injunction, or other unnecessary delay.
    3. The provisions of the Civil Code under the title of prescription do not apply to the limitation prescribed by statute in respect to the collection of the revenue.
    Laws fixing the term within which actions must be brought upon pecuniary obligations, do not affect the rights of the State, unless she, in terms, includes herself.
    Revenue laws axe tui generis, and are not to ho assimilated to those on an3- other subject. State ex rel, Jackson vs. Recorder,.34 Ann, 178, and Davidson vs. Lindoff, 36 Ann. 765, affirmed.

      4.Tax statutes have no retrospective effect, or operation unless this purpose is announced specifically in the act.
    ft. The imprescriptibility of city taxes assessed prior to 1877, as recognized in Davidson vs. Lindoff, is also applicable to State taxes assessed during the same year.
    6. Taxes assessed under the revenue law of 1877 are barred by the lapse of three years; and the lien and privilege securing same cannot, therefore, be enforced against the property assessed in the hands of third persons.
    A PPEAL from the Civil District Court for tlie Parish of Orleans. JljL Jiightor, J.

      M. J. Gumvingka/m, Attorney General, and James Mo'isc, for the State of Louisiana, Opponent and Appellee:
    1. Sections 37 and 38, of Act 42 of 1871, unambiguously make tax liens and privileges imprescriptible,
    2. The provisions ol this law. touching the imprescriptibility of tax liens and privileges created under it, have never been repealed.
    3. Section 38 of the act is retroactive, in the sense that it affects the taxes levied under former Revenue Atfbs, and this quasi retrospective operation is one of the objects of tb o. act, expressed in its title.
    4. The Revenue Acts subsequent to the Act of 1871 are prospective in their operation. The prescriptions fixed by them and theii repealing clauses refer to the future. There is no retroactive operation announced as objects of the acts in any of their titles, Davidson vs. Lindop, 36 Ann. 765.
    5. The intent to adopt a statute, retroactive in its operation, must appear in clear and unambiguous language. Poydras Asylum case, 33 Ann. 850; "Wade Retroactive Laws, §§34,35,36.
    6. Revenue laws are in no sense retrospective; they always provide for the future. 13 Ann. 268; Trellman vs. Tax Collector, 21 Ann. 104 ; Municipality vs. Blake, 10 Ann. 745.
    7. The Revenue Acts are a series of supersessions; the collection of the taxes being regulated by each act under which the taxes are levied respectively.
    B.
    1. It is impossible to compress every principle of law in our Code. Martin vs. J ennings, 10 Ann. 553.
    2. The articles of the Codes are not applicable to any issues arisiug under the Revenue Acts, for the reasons following:

      firstly. The latter are subsequent in the date of their adoption. C. O. 23. Jus postering derogat priori.

      ¿Secondly (a). The articles of the Code and the Revenue Acts belong, respectively, to two distinct classes of laws, viz: the public law (jus publicumi) and the private law [jus privatum).

      b. The public law comprehends those rules of law which relate to the Constitution and Government of the State — that is, the relation of the highest power to the people.
    r. The private law comprehends those rules of law which pertain to the legal relations of the people among themselves. Dropsie’s Mackeldy, Div, I, §8; Justinian 1,1,1, § 4 ; Domat, Yol. 1, Chap, xi, secs, 40, 41,44.

      d. In enacting her private law, the State imposes no restrictions upon herself. It operates only upon the citizen; the sovereign is beyond its domain.-
    c. Hence, Articles 3369, 3521 and 3544 of the Civil Code, as well as all other Articles ou the subject of registry, privileges, mortgages and prescription, do not apply to the State, nor to any matters arising under the public laws.

      Thirdly. Organized government is a social necessity, with respect to all the objects necessary to its vitality and preservation; the State must be sovereign. Therefore, if held subject to the articles of the Codes, many rights therein conferred would involve the power of her own destruction. Such an element of weakness in the system was never contemplated by its founders.

      Fourthly. Because of their conflicts and differences. They are neither co-ordinate nor eo-extensive; the intent of the law-maker being that both should be operative, but in their respective spheres. These conflicts and differences are:

      a. Prescription under Article 3457 applies not to taxes; they are not debts, but forced contributions. 26 Ann. 697; 7 Ann. 194; Cooley on Taxation, p. 13; 28 Ann. 836; Cooley Const., sec. 593; Blackwell, 1; Desty on Taxation, 7; 20 Cal. 318.

      h. In lieu of petition and citation, as required by the Code of Practice, constructive service by advertisement is the method substituted by the revenue laws. 10 Ann. • 764, 767; 11 Ann. 338; Bond vs. Hiestand, 20 Ann. 140.
    t\ Tax mortgages are not recognized by the Code. They are neither judicial, conventional nor legal mortgages as defined by the Code. They are excluded iu une* quivocal terms by Article 3312 (C. C. 3314 to 3320, inclusive).

      d. In the recordation of tax mortgages, the rules of the Code are either ignored or violated in every formality. In no one particular are tax inscriptions subject to these private laws.

      e. The revenue laws do not provide for the reinscription of tax privileges, Hens and mortgages. Hence, reinscription was never contemplated.
    c.
    1. The relationship of sovereign to subject in the State of Louisiana is precisely the same as that relationship is in every other State of the American Union and in the government of the United States.
    2. As this relationship is based upon principles forming a part of a pre-existing system, antedating the organization of our government, which system is the basis of our political structure, the relationship between citizen and State must be taken and understood according to those principles.
    3. Oar Constitution and public laws define this relationship, and assume the continued existence of the principles upon which it is based. These principles are to be found in the Common Law.
    4. Our private law is interpreted by the rules of the Civil Law. Our public laws by the rules of Common or English Law.
    O. The doctrine of nullum tempus occurrít regi is as much a part of our system as, that taxation and representation are inseparable, that as a right we enjoy the freedom of speech and the liberty of the press, and that local self-government is an essential element in our political organization.
    D.
    1. Prescription cannot be pleaded against the State unless the statute clearly indicates that that it may. Linsle.v vs. Miller, 6 Peters, 666; State vs. Arledge, 2 Baily (S. C.), 401; 2 , Overt. (Tenn.), 352; 18 Johns (H. Y.), 227 ; 4Vt,215; 5 Mass., 522, 528 ; 4 Hen.&M. (Ya.), 57; 16 Serg. & B. (Pa.), 245; 10 Id., 334; 1 Watts (Pa.), 54; 6 Ohio, 336; 16 Ala. 1 239; 6 Pa. St., 136; Id., 298; 2 Ga. 143; 3 Pa, St., 157; 19 Mo., 607; 4 S. B. Mon. (Ky.). 516; 23 Miss., 500; 28 Id., 753; 10 Pa. St., 466; 33Id.,455; 5 Miss. (4 How.), 13; lGill&J. (Md,), 373 • 9 Miss. (1 Smed. & M.), 179; 7 Mo., 194; 3 Brev. (S. C.), 254; 8 Yerg. (Tenn ); 6 Port. (Ala.), 84; 11 Gratt. (Ya.), 572; 4 Har. (Del.), 108; 71 Mo., 519; Kircheimer vs. B. B. Co., 67 Ga 760; Glaze vs. B. B. Co., 67 Ga. 761; 16 Eed. Bep., 350; 16 Ohio, 34; 9 Miss. (1 Smed. & M.), 179; 11 Gratt. (Ya), 572; Ware vs. Green, 37 Ala, 494; Ala. Sel. Cas., 383; State vs. Pratte, 8 Mo. 286; 2111.(1 Scan.). 100; 4B.&C.,138; 6D.&R.188; 34 Ann. 1011.
    E.
    1. The legislative intent not to abandon tax debts due prior to December 31st, 1879, is made manifest by the constitutional ordinance and the many statutes passed for the relief of delinquent taxpayers wherein all past taxes are recognized as due. Ordinance for the relief of delinquent taxpayers; Constitution of 1879; Act 37 of 1877; No. 9 of 1878; No. 49 of 1880; No. 126 of 1880; No. 100 of 1880; No. 98of 1882; No.82ofi884; (No.93ofl880 repealed by No. 29 of 1882.)
    2. The reliefs granted are from payment of costs, penalties, interest, etc,, the right of redemption in case of forfeitures, and the privilege of paying taxes in certain warrants. Delinquents are nowhere released from the imprescriptibility of tax inscriptions fixed in the A ct of 1871; on the contrary, the delinquent ordinance of the Constitution appropriates the funds paid into the Treasury on account of these taxes to the payment of the “Baby Bonds.”
    3. It is a sound rule of construction, that when one species of relief is omitted the intent was not to grant such relief. Repeals by implication are not favored by law. C. C. 23, 8: Bond vs. Hiestand, 20 Ann, 140.
    4. However absolute the right of the individual may be, it is still in the nature of that right that it must bear a portion of the public burdens and that portion must be determined by the Legislature. 4 Peters, 514; Disty on Taxation, 11.
    5. The taxpayer must look to the legislative department of the government for relief when the imprescriptibility of taxes or tax liens are claimed to be oppressive.
    6. Such an interpretation should be put upon the laws as will uphold them and give effect to the legislative intent. Cooley on Const. Lim., p. 70. No article of the Civil Code should, therefore, be held to nullify and abrogate the unambiguous legislative declaration in the Revenue Act of 1871, providing for the absolute imperishability of tax liens and privileges.
    7. Prescription is sometimes applicable to the “person" sometimes to the “thing" It runs not against a minor, yet the promissory note held by him is prescribed. Whether it does or does not run against the State is a distinct proposition from the question as to whether or not it runs against a tax or a tax privilege.
    E.
    1. The laws in the “Recopilación of the Indies,” making the Spanish Crown in certain cases amenable to the laws of prescription, are special enactments. 11 Martin, 210; 9 Rob. 287; White’s Recopilación, Book IV, Title II, laws 26, 17; Title III, law 47.
    2. As the Crown is specially mentioned in these laws, it cannot be said that she is amenable to the general laws of prescription.
    3. There is no analogy between Article C. C. 3521 and the prescription laws of the Recopilación. The former is a general and the latter are special laws.
    4. Article 3521 of our Civil Code is taken verbatim et literatim from Article 2251 of the Code Napoleon.

      G.

    1. Article 3521 of the Civil Code was not intended to provide for the persons who shall be subject, and amenable to or governed by tbe laws of prescription, but for the causes which shall suspend prescription.
    2 It relates to a temporary cessation of the flow of prescription under certain specified conditions. It does not mean that the United States, or the State of Louisiana, shall be subject to the laws of prescription, but in tbe cases of those who are subject to these laws there shall be no suspension of its operation. When the suspensive conditions are removed the laws are again operative.
    3. It is well established, that the running of a statute of limitations may be suspended by causes not mentioned in the statute itself. 10 Wall. 223.

      -1 Proscription has been held not to run in the following oases, although there was no exception established by law:

      a. The doctrine of “contra non ■mlentim,” ete., is not recognized by our Code nor contained in our statutes, yet is a well established role of law in this State. 20 Ann. 131; 24 Ann. 31; Hennen Prescription (Ya.), Nos. 1,13, 17, 27; 11 Wall., 245; 9 Wall., 688; 12 Wall., 701; 6 Wall., 532; 93 XJ. S. 96; 11 Wall., 493; Civil Code Sirey, Article 2251, note 13; 10 Ann. 553.

      b. Disability to sue suspends prescription in the case of absentees. 17 Ann. 269 ; 20 Ann. 407.
    e. Where a judge*could not be sued in his own court, prescription does not run. 7 N. S., 471.

      d. Prescription does not run against things hors de cormnerce and public rights. 3 N. S. 650; 18 L. 272 ; 3 N. S. 294; 20 Ann. 228.

      W. H. Rogers, City Attorney, for the city of New Orleans, and Blanc ds Butler, for Tax Collector, Opponents and Appellees.

      F. O. Zaeharie, amicus enrice, on the same side.

      B. It. Forman and E. M. Hudson, for Opponents and Appellants.
   The opinion of the Court was delivered by

Watkins, J.

In January, 1884, Charles H. Keed, syndic of his own estate, filed a final account and tableau of distribution, on which he stated that the total assets realized by sale of his property were $8,022.

This he proposed to distribute'—

1st — To the auctioneer, notary, in repairs, and insurance... .$ 515 00

State taxes, witli privilege........................... 183 00

City taxes, with privilege ........................... 612 50

Attorneys’ fees and cost............................. 1,007 20

2d — To Mrs. Hill’s mortgage of.......................... 10,765 38

According to this account, the debts, charges and taxes enumerated had absorbed all the assets, and nothing remained for distribution among ordinary creditors, a list of which is appended thereto. On this appears State taxes for 1875, 1876 and 1877, aggregating $450; and city taxes for 1874, 1875,1876, 1877,1878 and 1879, aggregating $1,085 —but without interest, cost or privilege, and not entitled to participate in the distribution.

The city of New Orleans opposed the homologotion of this account, alleging that there were taxes due her by the syndic for the years 1869 to 1883, inclusive, aggregating $4,827.20, and that said taxes, with interest, are secured by lien, privilege and mortgage on the property of the insolvent; that many of said taxes are in judgment; and all should have been placed upon said account and paid by preference out of the proceeds of sale — and her prayer is to that effect.

James D. Houston, State Tax Collector for the Upper District of New Orleans, likewise opposes the homologation of said account and tableau, alleging that taxes are due the State for the years 1869, 1875, 1876,1877 and 1878, amounting to $1,313.80, and that same are secured by privilege and mortgage, and are entitled to be paid out of the proceeds of sale by preference over all other claims.

The account and tableau were also opposed by E. M. Valletta, demanding $35 for compensation for services rendered while provisional syndic; and the Teutonia Insurance Company opposed, demanding $75 insurance premium due.

I.

The first question we are met with is the exception of Mrs. Hill to the capacity and authority of J. D. Houston, State tax collector, to appear in court and represent the State, and set up a claim to the proceeds of sale in payment of State taxes.

It appears from the evidence that, after sale of the property to Mrs. Hill, the syndic took a rule on the city of New Orleans, the Attorney General, James D. Houston tax collector, Mrs. D. G. Hill, and other persons who are mentioned in the certificate of mortgages annexed, and procured the cancellation and erasure of all the mortgages, privileges and liens therein enumerated, and the remission of same to the proceeds of sale.

In suppoit of his objection, counsel for the syndic cited Article 210 of the Constitution, and Alexandria vs. Hyman, 35 Ann. 301.

The answer to them is that in City of New Orleans vs. Wood, 37 Ann. 782, this Court held that “Article 210 is not self-operative;” and Alexandria vs. Iiyman only applies to suits against the taxpayer for the collection of taxes. Here we have quite a different case. The property, once subject to the State taxes claimed, has been disposed of at judicial sale to Mrs. Hill, the mortgage creditor of the insolvent, who is at the same time the tax delinquent. Upon his application, as the syndic of his own estate, he procured the cancellation and reference above mentioned, and filed his final account and omitted therefrom the taxes, which provoked this opposition.

The surrender, judicial sale and judgment of cancellation have placed the property assessed out of reach of seizure and sale by the collector. We can perceive no good reason why he is not entitled to make direct claim for the amount due.

In 13 Ann. 497, The State, through Thomas Askew, State Tax Collector, vs. The Southern Steamship Company, the Court said: “It appears to us that the right to collect the taxes presupposes a right to stand in judgment in suits of injunction, and even to institute an action in the name of the State whenever the taxes cannot he otherwise collected.

“ It is true that the law has indicated a more summary proceeding than suit for the collection of the taxes; still, as the sheriff is charged with their collection, for which he is compelled to give bond, we can see no sufficient reason why he should not be permitted to use the name of his principal, in a direct action, instead of seizing property, if it is evident that the seizure will occasion an injunction or other unnecessary delay. * * * * * * * *

“ It docs not lie in the mouth of a defendant to question the right to sue when he admits the propriety of the same, by the issue he tenders, and a denial of the right of the State to recover.” Budd vs. Houston, 36 Ann. 959; United States vs. Lee, 107 U. S. 196; Blackwell on Tax Titles, p. 553.

•The exception was properly overruled.

II.

Mrs. Hill further excepts to the alleged appearance of Thos. Duffy, civil sheriff', in opposition of the city, because he has no right to appear.”

'The opposition of the city is in her own name alone, though it is signed O. F. Buck, city attorney, and Blanc & Butler, “of counsel for civil sheriff'.”

On the trial of the merits, there was introduced in evidence a. contract between the mayor and city council, disclosing some right in the civil sheriff to collect arrearages of delinquent taxes due the city.

But this is not a suit for the enforcement of that contract, in any sense. It does not change the issue, nor, in any way, affect the status of the parties litigant.

III.

Mrs. Hill likewise urges as an exception to opponents’demands the prescription of two, three, ñve and ten years — both in respect to the taxes, and the privileges, liens and mortgages securing same.

The precepts of the Civil Code, under the title of Prescription, in our opinion, bear no relation to the limitation prescribed by statute in respect to the collection of the revenue.

First, because taxes are not debts in the ordinary acceptation of the term, but forced contributions, levied by the sovereign upon the property of the subject for the support and maintenance of government. City of Shreveport vs. Gregg & Ford, 28 Ann. 836; City vs. Davidson, 30 Ann. 541; City vs. Waterworks, 36 Ann. 436; Desty on Taxation, sec. 7; J. A. Morris vs. J. L. Lalaurie, 38 Ann.-, just decided.

Second, because the Constitution and laws have not provided that action shall be brought in the courts for the collection of taxes due the State. Alexandria vs. Hyman, 35 Ann. 301.

We do not doubt the correctness of the opinion of the Court, as expressed in Graham vs. Tignor, 23 Ann. 570. In that case the Auditor had brought suit on a series of notes defendants had executed for the purchase price of school lands. It was an “action” in the sense of R. C. C. 3540.

The State, in that case, occupied the position of an ordinary suitor. In this case the State appears through the tax collector (who is represented in this Court by the Attorney General) for the sole purpose of taking from the tax delinquent — an insolvent person — the taxes due the State; and out of a fund created by the insolvent's own act, assented to by his mortgagee, who purchased the property at judicial sale.

Clearly, the right of action by the State and city only arose when the judgment of the court was rendered requiring the cancellation of the privileges and mortgages securing their taxes, and their reference to the proceeds of sale.

The prescription urged here is against “the claim” of the Stale and city. We understand by this that it is statutory, and predicated upon the theory that, by the inaction and failure of the officers of the State and city to timely enforce the collection of the taxes, the right had lapsed.

We do not understand the gravamen of the opinion of the Court in the Succession of Zachary, 30 Ann. 1262, to favor that theory. It goes no further than Graham vs. Tignor, which it approves.

It says: “The corporation of the city of-New Orleans, as the State, is a body politic and, in law, an intellectual person; and, as ¡1 may acquire and be released by prescription, there is no reason it should be excepted from its effects, when it appeal's in court and claims as a creditor. In this instance its action is barred by the lapse of ten years.”

That was a suit for city taxes, which had not been sued to judgment as they have in this case.

But we think the concurring opinion of Chief Justice Manning more correct, and prefer to follow it.

He said: “T concur in the decide in this case, but I do not wish to be understood as assenting to the doctrine that general laws regulating prescription affect the rights of the State. The State is sovereign, and when she enacts laws fixing the time within which actions must be brought upon pecuniary obligations, or for the establishment of the rights of property, she is legislating for her citizens and is not imposiug restrictions upon herself, and such laws do not affect her own rights, unless she, in terms, includes herself within their operation.'''

Laws appertaining to prescription are stricti juris, and when sought to be applied to the State are strictisime jure.

At most, they constitute a bar to the assertion of rights judicially. They do not operate in pais. They are neither self-acting nor self-enforcing.

Prescription proceeds upon the theory that one, in whose favor a right once existed, has lost judicial recourse for its enforcement by reason of his own neglect, for such a length of time, that it would be against equity to permit its assertion.

Such an equity cannot arise in favor of the subject, as against the sovereign, by reason of the failure of her officers to perform their duties. Certainly not, unless the Legislature has so declared in unmistakable terms.

In State vs. Viator, 37 Ann. 735, this Court said: “The revenue laws hold tax collectors to a verv rigid accountability, and on the other hand give him exceptional facilities for collecting.

“ They are sui generis, and are not to be assimilated to those on any other subject.”

The statement of facts upon which our opinion is predicated discloses that there are no “current taxes” for the years since the adoption of the Constitution of 1879, involved. Only those denominated “ back taxes,” or “ delinquent taxes,” and such as come within the province of the. ordinance for the relief of delinquent taxpayers are involved. Hence, there arises no question pertaining to the proper construction of the Constitution, or the laws since enacted pursuant thereto.

The Constitution, and the ordinance for the relief of delinquents, dissevered “back taxes” from “current taxes.” They did not operate a repeal of prior revenue laws; but same were thereby most distinctly left in full force for, at least, all purposes of collecting the taxes that had been assessed under them.

This Court had occasion to place an interpretation upon one feature of this question in The State ex rel. Mrs. Jackson vs. The Recorder, 34 Ann. 178, in which these principles were announced, viz:

1st That “ under the express terms of Act 68 of 1870, and Act 42 of 1871,” taxes were secured by a mortgage as well as a lien and privilege.

2d. That Act 96 of 1877 did not affect the mortgages by which they were secured.

3d. That Act 77 of 1880, which provides that “all tax mortgages and tax privileges shall be prescribed by three years from the filing of the tax rolls,” has “no application to either privileges or mortgages for pre-existing taxes.”

In the more recent case of Davidson vs. Lindoff, 36 Ann. 765, Jackson vs. Recorder was affirmed.

Tn that case, city taxes for the years 1871 to 1879, inclusive, were involved. The Court say: “Section 20 of the city charter of 1879,” (1869 was clearly intended,) “provided ‘that the taxes assessed and levied by virtue of this act •* * * are hereby declared a lien and privilege upon said property, * * * and said lien and privilege shall exist in favor of the city of New Orleans *' * * until the same shall be fully paid; and same shall be paid in preference to all mortgages, or other incumbrances, other than taxes due the State.’ Under this law the tax privileges of the city of New Orleans were practically ■Impreseriptibie. It remained unaffected by any subsequent legislation until Act 96 of 1877. * * * * * * *

“ But, clearly, privileges existing for prior taxes are entirely outside of the language and meaning of the law.

“ Conceding then that the law applies to taxes of the city of New Orleans, after its passage, it is, nevertheless, merely a statute, of prescription, subject to interruption in the modes prescribed by law, and applicable only as a defense in bar of action muI judgment.

But here we find that, in every case, the city has sued and recovered judgment, with the recognition of the lien and privilege which had been recorded in the mode prescribed by law.”

This Court has repeatedly held that tax statutes have no retrospective operation, unless this purpose is specifically declared therein. 33 Ann. 39, City vs. Virgnole; 33 Ann. 258, Succession of Dupuy; 31 Ann. 781, City vs. R. W. L.; 29 Ann. 416, New Orleans vs. Day, 33 Ann. 858, City vs. Poydras Orphan Asylum.

These taxes are thus lemoved from the operation of those statutes.

The opinion in Davidson vs. Lindoff is conclusive as to the entire controversy, so far as it appertains to city taxes, all of which are evidenced by tax bills, in due form, and judgments regularly pronounced and recorded.

In respect to the State taxes, we find that the excerpt from the city charter, above quoted, is in very nearly the exact language of Section 37 of Act 42 of 1871, and Section 36 of Act 114 of 1869, and the opinion in Davidson vs. Lindoff is precisely applicable in all respects.

But, inasmuch as rhe taxes asserted in the tax collector’s opposition are only those of 1869, 1875,1876,1877 and 1878, those only of the last two years are prescriptible under Act 96 of 1877; but, as we liavc seen, tlie mortgage securing them is unaffected by it.

In addition to this, we find the State taxes of 1875, 1876 and 1877, and city taxes of 1874, 1875, 1876,1877, 1878 and 1879 — without privilege or mortgage — entered on the syndic’s account, on the list of ordinary debts; and this was not opposed by Mrs. Hill, and the account was duly homologated so far as not opposed. That is a clear and unmistakable acknowledgment of the liability of the insolvent for them.

The certificate of mortgages shows the timely inscription of the assessments in the book of mortgages, so as to perfectly preserve their effect against third persons.

The pleas of prescription were properly rejected.

On the Merits.

In respect to city taxes, we have only to say that we regard the judgments in favor of the city as conclusive. They formed res judicata with respect to Reed prior to his surrender; and Mrs. Hill made no answer or appearance of any kind, except for the purposes of her exceptions; and she is without any standing in court to control them.

In respect to the State taxes, the syndic’s acknowledgment of those of 1875, 1876 and 1877 is conclusive.

There is in the record no sufficient proof to establish the taxes of 1869. They amount to $252, and must be rejected. But the taxes of 1878 are fully proven by the assessment roll of that year, which corresponds precisely with the demand on tax collector’s opposition.

In respect to the complaint of the syndic that the assessments are not sufficiently accurate in respect to the description of the property for the liens and mortgages to attach to them, to say the least, it comes with poor grace from a citizen who has, for so many years, defaulted in the payment of his taxes. But he is completely estopped from urging such an objection by reason of his proceeding by rule to procure a judgment coercing the cancellation of the privileges and mortgages in question, and their reference to the proceeds of sale.

The certificate of mortgages is annexed thereto, and the judgment making the rule absolute refers to the mortgages and privileges that are to be cancelled as those “recorded against the following described property” — giving the description.

There is no merit in the defense.

Tt is therefore ordered, adjudged and decreed that the judgment of the court a qua be amended so as to reject and disallow the State taxes of 1869, $252; and as thus amended, that tlie same he affirmed —one halt' the cost of appeal to be taxed against J. D. Houston, tax collector, and one-half against the syndic and other appellants..

Judgment amended and affirmed.

Poché, J. I concur in the decree.

On Arpmcation nor Rnhharing.

The appellant, Mrs. Sarah H. Hill, alone, makes this application ; though she was joined in her appeal by the syndic.

She complains that our opinion treats this as a contest made by the insolvent, whereas it is between her and the State and city, touching the rank of their liens and privileges.

The facts of the case are : That the tax delinquent, as syndic of his own estate, procured a sale of his property, on which Mrs. Hill held a first mortgage, for a large sum, and, at the sale, she became the purchaser. Soon after, the syndic proceeded by rule on the certificate of mortgages, and, contradictorily with them, obtained the cancellation of all liens and mortgages, recorded against the identical property she purchased, and their reference to the proceeds of sale.

The object of that proceeding was manifestly for the purpose of disencumbering her property, and to which her assent was given.

The only question with which we have now to deal is the rank of the liens affecting those proceeds.

The insolvent, as syndic, filed an account and tableau of distribution of same, and the appellant was thereon placed as a first mortgage creditor.

The taxes of 1880 and subsequent years were allowed, as being mi-titled to participate in the distribution; but those of years previous to 1880 were placed on a list appended to the account, without anillen or privilege.

This account and tableau were opposed by the State and city, on the grounds stated in the opinion.

To these oppositions Mrs. Hill tendered several exceptions, and, among others, a plea of prescription.

On these issues the oppositions were tried, and decided against Mrs. Hill and the syndic.

It seems clear that Mrs. Hill is as much bound by the judgment as the syndic was. The amount of the taxes was tacitly at issue, and adjudged, quite as her lien and mortgage on the proceeds.

The acknowledgement of the syndic on his account, to which Mrs. Reid had made herself a pmty, by plea and exception, resisting the demands of opponents to it, became conclusive against all parties, when final judgment was rendered on the issues thus joined.

She urges specific objection to the effect that the taxes of 1880 having been allowed on the account, the judgment affirmed, virtually allowed them a second time. Such was not the interpretation we placed on the, decree. In our opinion it merely revised am.d restated the account, and increased this item, by the addition of costs, only.

There are other objections urged against the opinion, hut the points covered by them were sufficiently discussed in the original opinion, and their argument need not he. repeated here.

But, on reflection and re-examination of the law, we have become, satisfied that the lien of the State for the taxes of 1878 has lapsed, and have become barred by the limitation of three years, provided by Section 36 of Act 96 of 1877, and that the judgment appealed from should he reduced by the sum of $146 52 on that account — but that a rehearing is unnecessary in order that this reduction he made.

But, in so deciding, we are not to he understood as reversing, or even modifying the opinion of this Court, as expressed in State ex rel. Jackson vs. Recorder, 34 Ann. 178, and others cited in opinion. On the contrary, we expressly affirm them.

It is, therefore, ordered, adjudged and decreed that the judgment of the District Court, and of this Court, he and the same are hereby amended and reduced by the sum of $146 52, a,nd, as thus amended, our original opinion remain undisturbed.