text:
    No. 1986.
    R. E. Diamond v. G. L. Cain.
    Tho omission in the Constitution of 18G8 of article 133 of the Constitution of 1804, left tho whole subject of the corporation of the city of New Orleans and its police regulations under the power and discretion of the Legislature.
    Act No. 1, approved July 9, 1868, creating a Board of Police Commissioners for the City pf New Orleans and giving them full power to remove and.appoint the police force, and repealing all other acts and parts of acts iu conflict with its provisions, divested the Mayor of tho city of New Orleans of all authority to appoint a chief or other policeman. Articles 169 and 42 of the Constitution of 1868 were not violated in tho passage of this act. (See acts Nos. 74 and 146 of 1868, and Nos. 60 and 92 of 1861.)
    The ajipointrnent of a chief of police by the Mayor of the city of New Orleans after the passage of act No. 1, approved on the ninth of July, 1868, was without any legal force or effect, and such officer so appointed had, by virtue of his appointment, no interest in the office of chief of police, nor in the office of superintendent of metropolitan polico created by act No. 71, approved September 14, 1868 Having no interest in the office, ho was not entitled to the writ oi quo warranto nor injunction.
    A APPEAL from tlie Sixth District Court, parish of Orleans. Cooley, J.

      Leovy, Li. N. Ogden and Alfred Philips, for plaintiff and appel-lee. J. Hawkins and JE. Mlleiil, for defendant and appellant.
    ARGUMENT NOR DEFENDANT AND APPELLANT.
    I. The relator is not entitled to a writ of quo warranto :

    A quo warranto is only issued for the decision of disputes between parties in relation to the offices in corporations as when a person usurps the character of a mayor of a city, or such like. With regard to offices of a public nature, that is, which are conferred in the name of the State by the Governor, with or without the consent of the Senate, tho usurpations of them are prevented and punished in the manner directed by the Penal Code. Seo C. P., article 863.
    Article 869 C. P., provides, that a mandate to prevent the usurpation of an office, in a city or other corporation, may he obtained by any person applying for it.
    And article 870 provides, that the court, after having declared the party not qualified, shall direct the corporation to proceed to a new appointment.'
    It is clear on the face of the pleadings, that these articles, which are the only text upon the authority of which a quo warranto can issue, do not apply to George L. Cain. (See the case of Terry v. Stauffer, 17 A. R. 311, where the quo warranto was denied, under similar circumstances. )
    Cain is not a coiqporation officer; he is appointed by the Board of Metropolitan Police Commissioners, who are appointed by the Governor. (See act 74,1868, and article 863 C. P.)
    Being a subordinate officer of a State department, his commission partakes of the nature of the commission of his superior officers, according to the rule: Subrogatmn sapit naturam ejus eui subrogatwr. See Calvin’s Lexicon, verbo iáubrogandus.) This is self-evident, and requires no further argument. The counsel might well stop here, and this would be enough to dismiss the whole proceeding. But as the public is interested iu this case, it is good that the case of the commonwealth should he well, fully and zealously examined and defended, as remarks Cicero. But in a quo warranto case, the petition must be in the name of .the State, because the State is tho party that has the chief interest and almost the sole interest that tho franchises should not be abused or usurped. We look in vain in tlie record, and to tlie title of the suit, to see the name of tlie people or State of Louisiana as plaintiff in this pase, and we see that the proceedings are conducted iu the private name of the plaintiff, a ridiculous, usurpation of the rights of the State; nor is the plaintiff to he listened to, when he pretends to have acted under the two acts of the Legislature of 1868, providing a remedy against usurpation and intrusion into a public office, etc. (Acts No. 58 and 15C,)
    Because his petitions do not contain a single word or allegation to that effect, nor did he claim to be interested in the office of Superintendent of the Metropolitan Police, nor did he allege that Cain usurped the said office; and moreover, the reading of those two acts shows so clearly that such an action cannot be instituted without the concurrence of the Attorney General, the plaintiff can take nothing by his equivocation, all doubts in such a case being interpreted against him who, having the opportunity of explaining himself, has been the cause of the obscurity found in the pleadings.
    The plaintiff has prayed for a writ of quo warranto, and to that prayer his petition must be limited.
    The nature and rules which govern the proceedings in quo warranto are so anomalous, and so different from all the other rules of practice, that it is impossible to cumulate quo warranto with other remedies and pleadings in the same suit; the judgment to be rendered in such a suit is dictated by law, and is only intended to remedy one wrong. The pleadings are anomalous in this — that the king or State has nothing to prove, and the onus probandi and justification is thrown upon the defendant, and if he fails in his justification, judgment must go for the king or State. These proceedings are also considered in the light of a criminal action. We repeat that the peculiar rules which govern quo warrcmto are repugnant to the other rules of practice, and other matters cannot be heard upon the trial of such issues. See Bouvier’s Dictionary, Angel and Ames, Kent’s Commentary, and all the authors.
    Should, however, the plaintiff be entitled to a writ of quo warranto, the defendant, by showing his warrant of appointment, and the law creating the board of metropolitan police, has fully complied with tho law, and he would be entitled to a judgment.
    II. That by divers acts of the Legislature, the office of chief of police of New Orleans has been abolished and no longer exists; that the Mayor of New Orleans has no authority to appoint any officers or members of the police of New Orleans.
    The respondent avers that there is no such office as that of chief of police of New Orleans; he holds the negative. The burden of proof is on the party affirming that such an office exists to prove its existence.
    In an action in the nature of a quo warranto, the question may be raised whether there is such an office as the defendant or plaintiff has assumed to fill; the object of the Code of Practice relative to such actions is to provide a speedy and effective mode of determining the rights of individuals to discharge the duties of an office; necessarily involves the determination of the existence of the particular office. See 24 New York Reports, p. 86.
    _ The article 133 of the Constitution of 1864, gave to the Mayor of the city of New Orleans the power to select the police of the city; the members of the police force were to hold their office during good behavior, removable only for cause by a police commission composed of five citizens appointed by the Governor.
    The act No. 14, session acts of 1866, entitled an act “to organize the police of the city of New Orleans, and to-create a police board •therein,” was'enacted under the Constitution of 1864. The Constitution of 1868 did not retain the article 133 of the Constitution of 1864, and therefore left the organization of the police force in New Orleans as a proper subject of legislation for a subsequent Legislature.
    On the ninth July, 1868, the Legislature passed an act which divested the Mayor of New Orleans of the power of appointing or selecting the policemen of New Orleans and vested the appointment and administration of the police of New Orleans in a board composed of five police commissioners; that law repealed all laws or parts of laws inconsistent with it, and took effect from its passage. (S.ee acts of 1868,. act No.l.)
    On the fourteenth September. 1868, the Legislature passed the act entitled “ an act to establish a metropolitan police, and to* provide for the government thereof.” (See act No. 71, 1838.)
    This act gives the exclusive and'absolute control of the police of the city of New Orleans, made apart of the metropolitan police district, to the board of “Metropolitan Police.” (See section 2 of said act.)
    On the seventh October, 1868, the Legislature re-affirmed the act No. 1, creating the Beard of Police Commissioners by fixing their salary and allowing them their pay, from the day of their creation to the day they were superseded by the Metropolitan Police act. (See act No. 145, session 1868).
    On the nineteenth August, 1868, the Legislature passed an act entitled “ an act to determine the mode of filling vacancies for which provision is not made in the Constitution.” The first section of this act provides that when a vacancy occurs in any office, State, parish or municipal, the vacancy shall be filled by the Governor. (See act No. 27, 1868.)
    It will be seen that the Mayor of New Orleans on the twenty-eighth October, 1868, when it is alleged that he appointed Robert E. Diamond chief of police of New Orleans, violated on that clay lour acts of the Legislature, to wit: Acts No. 1, 27, 74 and 145, and that his appointment in opposition to the statutes of Louisiana, was nothing but a ridiculous and absurd act of folly, as well as an act of rebellion against the Legislature oí Louisiana.
    This commission gives no right to Diamond; any assertion of any right under such a commission cannot for one moment be listened to' by a tribunal whose first duty is to cause the laws to be observed and obeyed.
    The Mayor acted in contravention of law. Article 12 C. C. says, whatever is done in contravention of a prohibitory law is void.

    What a strange Spectacle this case presents! Those who should be defendants and praying for the mercy of the court, present themselves before the courts with a threatening and defiant attitude. The plaintiff, R. E. Diamond, then has no standing in court. He has made the plea that the metropolitan police act is unconstitutional, because it violates articles 94,117 and 118 of the Constitution.
    Courts of justice do not sit to examine abstract questions of law and to give their opinion about questions which, without any interest, any malignant parties may propound to them. Courts of justice are established for the purpose of settling serious disputes which may arise between citizensin regard to the rights of person and property. The organization and government of the x>olice of the city of New Orleans were entrusted to the municipal corporation, created by the Legislature under the name of the city of New Orleans. In the course of time the Legislature thought proper to divest the corporation of the police power and to vest it in another body; this measure is purely political and administrative, and cannot, under a constitution like ours, which acknowledges the principle of the division of the powers of the government, become the subject of a judicial inquiry. Such a question is beyond the limits of the judiciary power, and exclusively belongs to the two other branches of the government.
    The judiciary can only interfere if such legislation'deprives a citizen of any vested rights or if it impairs the obligation of contracts.
    What vested rights can R. E. Diamond have in the government and police of the city of New Orleans ? What contracts in which he has an interest has been impaired?
    In what capacity does he present himself! As Chief of Police. Admitting that his appointment was regular, this would not give him tho right to plead the uuconstitutionality of such a statute, because the government of the police is not an appendage of his office. He would he a subordinate oflicer of tho corporation of New Orleans, and he has no power to sue for any right belonging to the corporation. He cannot sue vicariously for tlie right of another; ho is a self-constituted vicarius aMetd juris and cannot be heard.
    In the second volume of Blade's Reports, p. 513, we learn that the city of Sheboygan had issued certain bonds, and a party who had no interest in the matter chose as a pretense for his intervention to argue the unconstitutionality of the measure. The Supreme Court refused to hear him, and said: “We hear of no complaint from the bondholders, it does not belong to the complainant, vicariously, to enforce their contract and to protect their rights. Gilman v. City of Sheboy-gan, 2 Black’s Reports, page 513.
    Our Code of Practice defines the right of action thus: It is the right given to every person to claim judicially what belongs to him. C. P. art. 1.
    A plea to tho uuconstitutionality of a statute was made in the 12th A. R. The Supreme Court first examined into the capacity of the party making the plea and said:
    “ The act of the Legislature certainly invaded no vested right of a company, which came into being ten years afterward, and it is only for the party whoso rights are invaded to plead the nullity of a law impairing the obligation of a contract.” Navigation Company v. City of New Orleans, 12 A. R. 366.
    In Now York it has been decided, “That the people cannot set up to invalidate a charter granted by the Legislature, that it confers a power in violation of the Constitution of the United States, as a power to bridge a navigable stream. Such objection, if it were valid, can be taken only by those who have been impeded in lawful commerce.” Peoples. Saratoga and Rensselaer Railroad, 15 Wendel Rep. 113; Abbot’s New York Dig. vol. 4. p. 643, No. 20.
    Robert E. Diamond cannot certainly say that the statutes of Louisiana, passed before he received his commission from Conway, invaded any of Ms protended rights which were not then in existence.
    Though the undersigned have fully demonstrated that plaintiff or relator in this extraordinary case of quo warranto has not shown any right to appear before a court of justice, we will show to your honors that the pleas of uneonstitutionality have no foundation in fact and in law.
    Does the act No. 74, 1868, violate article !)4 of the Constitution? This ground was abandoned in the court below. Article 94 of the Constitution says: “ That no judicial power, except as committing magistrates in criminal cases,-shall be conferred on any other officers than those mentioned in tMs title, except such as may be necessary in towns and cities,” etc., etc.
    There is not a single word and sentence in the act No. 74 which has any reference to that article of the Constitution. In fact, the act No. 74 treats entirely of a different object, and is entirely foreign to that article. The plea is absolutely frivolous, and should a part of a law be unconstitutional, that part only would be declared unconstitutional, and the other parts would be declared constitutional if they do not violate the Constitution.
    The law violates article 117 of tho Constitution, which says : “ That •no person shall hold at tho same time more than one office of trust and profit.”
    The act No. 74 does not create an office, but it confers new duties •on the Lieutenant Governor. This act says, “that by virtue Of Ms office he shall be ex officio President of the Board of Metropolitan Police.” The Conferring of new duties or powers on an officer of the executive department is authorized by the Constitution, when those duties or powers belong' to the same department or branch of government; this is the rule of the Constitution. The exception to that rule is found in article 82', which says, “no duties or functions shall be conferred by law on the District or Supreme Court Judges, except those that are judicial;’’ and in article 94, which says, “that no judicial functions shall be conferred upon any other officers than the judges mentioned in the Constitution, except the judicial powers conferred upon committing magistrates.”- The words ex officio moan by virtue of his office, and tile Legislature can extend the powers of the Lieutenant. Governor as il frequently extends the power of the Governor by malting him ex officio president of the board of the Charity Hospital, president of the board of emigration, and so on ad infinitum.

    The Legislature, as to that extension of powers, not being limited by the Constitution, has an absolute and sovereign discretion.

      Malitiis hominum non est indulgcndum is a rule which governs absolutely in matters where nullities are invoked, and if the party invoking the nullity does not show his interest, he is reduced to silence. The principles which we invoke have been sanctioned by the courts of New York: “ The power conferred upon the Supreme Court under the laws for opening streets in the city of New York, to appoint commissioners of estimate and assessment, and to review th&ir reports,” is not a violation of articles 5 and 7 of the constitution of New York of 1822, by which the judges of that court are forbidden to hold any other office or public trust. The statutes are an extension of the jurisdiction of the court, and not an appointment to office. (See the authorities quoted. Abbot’s New York Digest, vol. 1, page 673, No. 296.)
    It was also decided in New York:
    That the provision of article 6 of the constitution of New York, “that the judges of the Court of Appeals and Supreme Court shall receive a compensation, to be established by law, which shall not be increased or diminished during their continuance in office,” does not prevent an additional compensation which is authorized by the Legislature. (Idem, No. 295.)
    But admitting,that the Legislature had no right to confer new duties upon Lieutenant Governor Dunn, what effect would this provision have upon the rights of Diamond1? None at all. It would be immaterial as to the public. It would be in the discretion of the Lieutenant Governor to refuse to perform such duties, as President ex ofiicio of the Board of Metropolitan Police, or, following the respectable precedent of the circuit courts of New York, continue ex gratia voluntarily to execute the duties entrusted to them by an act declared unconstitutional because it assigned to the circuit courts ministerial duties. (See Kent’s Commentaries, vol. 1, No. 451.)
    At all events, no one could properly bring the qirestion of constitutionality of such a provision, because such a provision divests no one of his vested rights and does not impair the obligation of any contract. The question of constitutionality could only come before the court upon the refusal of the Lieutenant G-overnor to perform duties imposed upon him by a statute which he would not obeyras in the cases of the circuit judges and North Carolina judges, quoted by Kent.
    Those authorities apply to our case; and further, as we shall see in a moment, the act No. 74 has been repealed and re-enacted, and all right's of action growing out of the existence of said act in progress of litigation are at an end. No judgment can be rendered under a law which has ceased to exist. Does the act 74 violate article 118 of the Constitution of 1868 ?
    That article 118 provides that taxation shall be equal and uniform ^through the State, etc.

      There is not a word about taxation, nor is there any power to levy taxes of any hind given to the Metropolitan Police Board.
    By section 27 it is made the duty of tho Board to convene as a board of estimate and apportionment, to proceed to make up a financial estimate of the sums required for their expenses, etc., and the proportion of expenses’ applicable to each of the cities and parishes in the metropolitan district in ratio of the number of police officers and men authorized by this act and employed by such cities and parishes respectively.
    The undersigned counsel cannot discover what is unconstitutional in such a provision of a statute, nor has Robert E. Diamond shown what property ho possesses that lias not been uniformly taxed, and in what manner Cain, who does not belong to the Board of Commissioners of Metropolitan Police, lias taxed him unlawfully or impaired any of the obligations of contracts in which he is interested.
    Truly never were arguments so devoid of logic and reason presented to any tribunal!
    The claim of the relator is not only unfounded in law and in fact, but is only urged for tho purpose of brewing trouble, disorder, confusion and anarchy.
    IV.' Tho defendant annexed his warrant of appointment according to the article 17 of the metropolitan act, and this is a 'sufficient, full and complete return to the quo warranto, and judgment should have been given for the defendant.
    V. That the relator and plaintiff is not entitled to a writ of injunction, nor can the plaintiff obtain an injunction in this case and thus suspend the functions and duties of officers belonging to the executive or legislative branch of the government.
    In the case of Terry v. Stauffer, 17 A. R. 313, a case which resembles this, an injunction was applied to for the purpose of preventing the defendant from exercising tho functions of Register of Voters of Now Orleans, a State office, claimed by Terry The District Court refused the injunction, and the refusal was sustained by the Supremo Court.
    Judge Labauve, who was the organ of the court, said : “ It would require the strongest showing on the part of a private individual to induce a judge to enjoin a State officer from performing his functions ; and we are not prepared to say that it can be done in any circumstances. The effect of such injunction would reflect upon and affect materially the government, and might stop, in certain cases, tho government machinery. Terry v. Stauffer, 17 A. R. 312.
    This doctrine is adopted by the Federal Courts. “ The courts of tho United States have no authority to enjoin the officers of tho government against performing any act not merely ministerial.” See authorities quoted in Abbot’s National Digest, verbo “Injunction,” No. 48.
    In New York it has been decided that the State courts have no power to restrain by injunction the acts of the officers of tho State who arc proceeding under the authority of the law, and that the fact of the statute in question being unconstitutional, forms no ground for granting the injunction. Sedgwick Constitutional Law, p. 577.
    But, if the plaintiff had any right to injunction, or to a quo warranto, it is not against the defendant that the writ should have issued, but against his principals.
    In general, an injunction will not be allowed against an agent where the principal is not made a party. Osborn v. Bank of the United States, 9 Wheaton’s Reports, p. 739.
    _ We think that it has airead}*- been abundantly proved that the plaintiff was not entitled to an injunction.
    To complete their task, the undersigned counsel will review some-points which do not appear in the pleadings, and were made, exjproprig motu, by the District Judge. Cqse of interest;, 14, - ' '
    The District Judge says:

      “The next point to be examined is tlie alleged nnconstitutionality of tbe act of the Legislature No. 1“, entitled ‘ An act creating a - Board of Police Commissioners,’ and approved July 9, 1868.
    “ The position taken in the argument by, defendant’s counsel is. that, the court cannot pass upon the constitutionality of this law, because it does not possess the power to pass upon such questions when raised, collaterally. I must confess the distinction attempted to be made between collateral and direct issues, as applicable to the present case, is too acute for my comprehension. It maybe sound; a.nd-it may also be that my want of the proper capacity is the cause that I have not understood the application of the argument; but I acknowledge that I do not see any force, nor yet any application in the point.”
    The issue is no where presented in the pleadings, of the constitution ality of act No. 1, acts of 1868.
    There is no prayer in the two petitions of the plaintiff, asking'that this act should be decreed unconstitutional. The question did not, oven come incidentally before the court. In the argument of the defendant’s counsel, it was stated that the twenty-sixth section of the city charter of 1856 was repealed by the said act No. 1, whe'n the judge stopped the counsel and remarked to him that this act was unconstitutional ; the counsel for the defendant replied immediately that this act No. 1 was on the statute book of Louisiana; that no j udgmont of any court had yet pronounced it to be unconstitutional, and until such a judgment the act must be respected and obeyed as the law of the land, and that the constitutionality of a law could not be inquired into incidentally, and when quoted in the argument of a case.
    The judge seemed to be much surprised and astonished at the doctrines advanced by the counsel for the defendant and sarcastically remarked, “that the distinction attempted to be made between collateral and direct issues, as applicable to the present case, was too acute for his comprehension.” (See Record, page 47.)
    The counsel of the defendant conscious of the rectitude and the justness of the principles of constitutional law sot down by them, was much more astonished than the learned judge, to hear the expression of any doubt about the soundness of the doctrine advocated by him, JSh ! Quol! vous etes juge dans Israel, et vous ignores ces dioses l

    Can a party plead collaterally and incidentally that a law is unconstitutional
    In Kent’s Commentaries, vol. 1, No. 450, note 1, we read:
    Courts will not inquire collaterally into the constitutionality of legislative enactments. State v. Rich, 20 Mis. 393; Miller v. State, 3 Ohio St. 475.
    In.tke case of Dorsey v. Vaughan, 5 A. R. 156, Vaughan as sheriff executed a writ of fieri facias against the property of Dorsey. Dorsey' sued out an injunction, and as one of the grounds of the injunction alleged that Vaughan could not act as sheriff because in violation of the article 126 of the constitution of 1846. He held at the same time-more than one civil office. The Supreme Court said:

      “ We do not recognize the right of the plaintiff to nave the question of forfeiture of office determined in this mode of proceeding.” See 5 A. R. 156.
    The Supreme Court of New York decided — That the rule, that no court should declare a legislative act unconstitutional unless it is glaringly so, applies with peculiar force to the decision of a- single judge, on a collateral motion. Abbott’s New York Digest, vol. 7, p. 139, Ño. 2.
    Notwithstanding these authorities which establish beyond a doubt the principle that a court cannot incidentally and collaterally pronounce a law to be unconstitutional, the District Judge proceeded to make himself the judge of the proceedings of the Legislature of 1863, He says — Record p. 50—

      , ‘‘.The ground taken against the validity of the act of the ninth of July, 1868, is, that it was passed by the House of Representatives and Senate before the General Assembly had acted upon the proposed fourteenth amendment to the Constitution of the United States, This objection is derived from article one hundred and fifty-nine of our Constitution, which reads as follows: .
    “;AitT. 159. The General Assembly, .elected under this Constitution, shall hold its first session in the city of New Orleans on the third Monday after the official promulgation aforesaid, and proceed immediately upon its organization to vote upon the adoption of the fourteenth amendment to the Constitution of the United States, proposed by Congress, and phssed June 13, 1866; said General Assembly shall not have power to enact any laws relative to the per diem of members, or any other subject, after organization, until said constitutional amendment shall have been acted upon.’

      “ By the journals of the House of Representatives, it appears tha* the fourteenth amendment was acted upon by the House on the first of July, 1868, having suspended the rules for that purpose. See journals House of Representatives, page 8. The same resolution ratifying the constitutional amendment was only finally acted upon by the Senate on the ninth of the same month; but before this, viz: on the second of July, the act No. 1, under discussion, was introduced in the House of Representatives, and passed on its first reading. Journal House of Representatives, page 10. And the third and final reading of this bill occurred on the fourth of July. See journal House of Representatives, page 14. Now it is plain that though on the second of July the House of Representatives had acted on the fourteenth amendment the Senate had not. The action required by article 159 of the Constitution is, that of the ‘General Assembly;’ and according to article 15 of the Constitution the ‘ General Assembly ’ consists of two distinct branches, the ‘ House ’ and the ‘ Senate.’ It is a rule which 'is invariable upon such questions that the Legislature is presumed to have fulfilled the conditions necessary to invest it with legislative authority; but this jirosutnption is completely rebutted when its own journals, besides proving tiie passage of a law, also establishes the non-fulfillment of the only condition upon the performance of which it had the power to enact the law. The act of the ninth of July, 1868, entitled 1 An act creating a Board of Police Commissioners,’ having been passed in violation of the one hundred and fifty-ninth article of the Constitution, is therefore null and void; and no repeal of tlio twenty-sixth section of the city charter, under the act of 1856, was effected thereby.”
    Taking for granted that the statement of the Judge is correctly copied from the journals of the House and Senate, we candidly assert that.the Judge has drawn the most erroneous conclusion from his own premises. Par from showing any violation of the Constitution, this statement shows a most faithful and correct obedience to article 159 of the Constitution. The House first passed the resolution, for the ratification of the fourteenth amendment and sent it to the Senate and proceeded to their ordinary business of legislation. No act of the Legislature could have any effect before the ratification of the fourteenth amendment.
    The Senate concurred in the resolution ratifying the fourteenth amendment, and afterwards concurred in the act No. 1, sent from the House of Representatives, so the act No. 1 was enacted after the ratification of the fourteenth amendment by botlihouses. It is not claimed by the defendant that this act No. 1 was enacted or took effect before the ratification of the fourteenth amendment, but it is maintained that it was enacted after the ratification, as the journals will show. This act No. 1 is within the scope of legislative authority and therefore con-stkutional.
    The article one hundred and fifty-nine of the Constitution did not use the word pass, but used the word enact. There is a difference between these two verbs. To pass, conveys the meaning of proceeding or moving to the end of legislative action, which is the enactment. A law is' said to pass when it is in progress from one house to another; when it has reached its final stage it is said that the law is enacted, and this seems to be the definition of Webster’s Dictionary, verbo enact where this example is quoted from Mr. T. Bigelow: Shall this bill pass to be enacted ?

    But there is a very sqrióus objection to the conduct of'the Judge. By what authority does he supervise tlie acts of one of the co-ordinate branches of the government ? By so doing lie himself violates the Constitution and usurps an authority which does not belong to him, he disobeys tlie precepts and doctrine settled by the Supreriie Court, • and we have no doubt that his usurpation will bo discouraged by this Court.
    In Nicholson v. Thompson, 5 R. R. 367, this Court said: The judicial department cannot supervise the acts of the co-ordinate branches of tlie government, it decides only on tlie rights of parties in controversy which have assumed a judicial form. 5 R. R. 367.
    Neither the journal of the House nor of the Senate was offered in evidence. They arc not legitimate evidence. If they had been offered, objection would have been made, and if received, a bill of exception would have been taken.
    In the case of the People v. Devlin, 33 N. Y. Reports, p. 269, it was decided, “ That the courts cannot examine the legislative journals or other evidence to ascertain parliamentary irregularities in the proceedings resulting in the passage of the act. If the act is constitutional and passed by a constitutional vote, legislative journals are not legitimate evidence to impeach it on the ground of irregularity or departure from parliamentary usage in the proceedings of the Legislature.” Abbott’s -New York Digest, pages 262, 424, 425.
    Whatever may be the irregularities or violations of the parliamentary rides when a bill has passed both branches of the Legislature and has been signed by the appropriate officers and sent to the Governor for his approval and signature, it has passed beyond the control of either house, and such a bjll becomes the law of the State. Abbott’s N. Y. Digest, vol. 7, pages 424 and 425.
    The Supreme Court of Missouri sustained the same doctrine as the court of New York. The court said: “ In our investigation, we have not met with a single case in which the courts have looked behind the statute roll in order to determine whether in passing a law the members of tlie Legislature conformed their conduct to the rules directed by the constitution, to bo observed in framing laws.” Pacific Railroad v. Governor, 23 Mo. 353.
    Sob also the same doctrine maintained by the Supreme Court of Mississippi. 32 Mississippi Reports, p. 650.
    The Supreme Court of Louisiana will no doubt maintain the same principles, and decree that the act number one, 1868, is constitutional, and this decree will annihilate at once tlie pretensions of Conway and Diamond.
   Howell, J.

The plaintiff, alleging that on the twenty-ninth October, 1863, he was duly appointed and commissioned as Chief of Police in and for the city of New Orleans by the Mayor thereof, whose authority so to do is derived from the city charter, and that the defendant, G. L. Cain, without legal authority and in violation of plaintiff’s rights, claims and usurps the office and is pretending to perform the duties thereof to the injury of plaintiff, wiiose rights he refuses to recognize, prayed for a writ of quo warranto, directing said Cain to show by what authority he holds, claims and usurps said office, and for a writ of injunction restraining him from interfering with plaintiff in the discharge of the duties of chief of police, with damages.

The writ of quo ivarranto was issued returnable on a day fixed and a rule to show at the same time why an injunction should notissue. Subsequently an amended petition -^yas filed setting forth that said Cain was acting as chief of police of New Orleans by virtue of his appointment as “Superintendent of the Metropolitan Police,” made pursuant to an act of the Legislature, entitled An act to establish a Metropolitan Police District and to provide for the government of the same,” approved fourteenth September, 1868; that his acts as such violates the vested rights of plaintiff as chief of police; that he usurps all the functions of said office under color of said appointment and refuses to plaintiff access to the records and office room tof the chief of police of New Orleans to the injury of plaintiff and danger to the public peace} that the acts and doings of defendant violate the letter and spirit of the aforesaid act of the Legislature, which in no manner conflicts with the vested rights of plaintiff as chief of police under the city charter and ordinances; that said act violates articles 94, 117 and 118 of the Constitution of this State, and vests no rights in the defendant, and closing with the prayer of the original petition.

The defendant, without excepting to either petition, answered with a general denial and a special denial that plaintiff is chief of police or that any such office exists, or that theMayor'has any authority to make such appointment, and avers that plaintiff has no right to the writ of quo warranto, and his claim is in contempt of the laws of the State; that by divers acts of the Legislature the said office of chief of police has been abolished and the Mayor deprived of any power to appoint police officers; that on second November, 1863, he, plaintiff, was appointed superintendent pro tempore, and on ninth same month was-duly elected and qualified superintendent of the “ Metropolitan Police force,” by the Board of Metropolitan Police, and he is now exercising the duties thereof; that the allegations of the petitions are untrue and insufficient for an injunction, which cannot issue to suspend the functions of executive officers, and upon presenting his warrant of appointment according to section seventeen of the act establishing the said Board, he prays that the petition be dismissed.

■ There being no evidence in the record, except the commissions of the parties with defendant’s oath of office, the question involved is one of the construction and effect of the laws relating to the two offices and the functions thereof in controversy.

By the twenty-sixth section of the amended city charter (acts 1856, p. 142) the Mayor of New Orleans was empowered to appoint police officers, policemen and watchmen, under the ordinances of the common council organizing the same.

Article 133 of the Constitution of 1864 gave to the citizens of New Orleans the appointment of the officers necessary for the administration of the police of the city, in the mode prescribed by the Legislature, and directed that the city should maintain a police selected by the Mayor, and removable by a commission appointed by the G-overnor, recognizing in express terms a chief of police and other officers, and fixing the grade of their salaries.

Act No. 14 of the Legislature of 1866 directed that after the ensuing municipal election the police of the city should be organized by an ordinance determining the number, functions, etc., of the same; authorized the Mayor to make the appointments, and provided for carrying into effect the above article of the Constitution, fixing, among other things, the composition and functions of the police commission, which, with the Mayor ex officio a member thereof, had the control of the police of the city. None of the city ordinances are before us.

The Constitution of 1868 omitted article 133 of that of 1864, but by article 149 continued in force all legislation not inconsistent with the Constitution itself. ThisTel't the whole subject of the city corporation and police under the power and discretion of the Legislature, which by act No. 1, approved July 9, 1868, created a Hoard of Police Commissioners, to be appointed by the Governor, and who shall have ‘1 full power to appoint and remove and control the officers and men of the police force of the city of New Orleans directed how the officers and men should be removed, and repealed all acts and parts of acts inconsistent therewith. This act took effect from and after its passage, and as a consequence, the laws authorising the Mayor to appoint the police, and creating a police commission, with the Mayor as a member, for the trial and removal of policemen, being inconsistent therewith, were repealed and all control of the police was taken from the Mayor and the said commission and vested in the board of five police commisj sioners, created by said act. No law exists authorizing the Mayor to make such appointment.

The plaintiff however asserts this act No. 1 to be unconstitutional, because by the one hundred and fifty-ninth article of the Constitution of 1868, it is provided that the General Assembly at its first session shall not have power to enact any law until the fourteenth amendment to the Constitution of the United States “ shall have been acted upon.”

We have the highest evidence that said amendment had been “ acted upon,” when the said statute was passed, for the joint resolution ratifying it was approved on the same day with the statute. Both required alike the action of each house and to be submitted to the Governor before they took effect. The Constitution does not say that the proposed amendment shall be adopted before the General Assembly could propose or consider any bill — it only says that it shall not enact any laws, thftf is, pass any bill through the necessary stages to become a law, until it bad acted upon the amendment — the object being to secure early action thereon; and in our opinion the amendment was acted upon before any law was enacted in the constitutional sense. And we can see nothing in this statute in conflict with articles 42, 94, 117 and 118 of the Constitution, as charged.

The conclusion is evident that the Mayor was without legal authority to appoint plaintiff chief of police.

Subsequent legislation on the subject has, if possible, more effectually withdrawn and withheld the police of the city from the Mayor, (see acts Nos. 74 and 145 of 1868, and Nos. 60 and 92 of I860); and the conclusion is manifest that the alleged appointment of the plaintiff as chief of police by the Mayor was without authority of law, and that in said capacity he has no right to the writ of quo warranto demanded in this proceeding.

It is not protended that section 130 of the city charter, if in force, applies; and by act No. 156 of 1868, tho party complaining must have an interest in the controversy and the proceeding must be in the name ol the State.

Plaintiff having no interest in the office of chief of police or super-tendent of the metropolitan police, cannot interfere with or restrain the defendant in the discharge of his alleged functions or question his right to the office, which plaintiff admits he holds under an act to establish a metropolitan police district, and to provide for the government thereof,” approved September 14, 1868.

Admitting that this act, jn the particular features mentioned, is in conflict with the Constitution, it does not invalidate the establishment of a metropolitan police and the appointment of a superintendent thereof, as provided for in the act. It is said the act violates article 117, because the Lieutenant Governor is made ex officio the president of the board with a salary, and article 118, because the tax authorized is to be assessed upon the portion of the State comprising the metropolitan police district only, which, if true, as said before, docs not render the balance of the act unconstitutional.

It is therefore ordered that the judgment appealed from bo reversed and that there be judgment in favor of defendant dismissing plaintiff’s demands with costs in both courts.


source: Caselaw Access Project

author: IIowell, J.

license: Public Domain

text:
    Nos. 1983 and 1982.
    Metropolitan Police Board v. J. R. Conway. — Same v. R. E. Diamond.
    Reporter. — See the case of Diamond v. Cain, No. 1986, reported above.
    from Fifth District Court, parish of Orleans. Léawmont, J.

      J. ITawbins and P. Mlleul, for plaintiffs and appellants. II. <f. leovy, M. IT. Ogden and Alfred Philips, for defendants and appellees.
   IIowell, J.

These two oases present the same issues, and were instituted to prohibit John R. Conway, Mayor of the city of New Orleans, from commissioning and ordering on police duty any person or persons in said city, and the defendant Diamond from acting as Chief of Police in the said city, on the ground that the whole police power within the city of New Orleans is by law vested in the plaintiffs.

We have just found in the case of Diamond v. Cain that this ground is sustained by the law, and for the reasons assigned in said case, it is ordered that the judgments appealed from be reversed, and that there be judgment in favor of plaintiffs perpetuating the injunction in each case at the costs if the defendants respectively in both courts.


author: Wyly, J.

text:
    No. 2105.
    State of Louisiana v. Theophilus W. Evans.
    In capital cases jurors aro not permitted to separate after they have "been sworn.
    A verdict of guilty of a capital offense will bo set aside, and a new trial ordered where the jury have separated after they were sworn and before verdict.
    In cases not capital the jury may be allowed to separate at the discretion of the judge before verdict.
    1 PPEAL Lorn the Eighth District Court, parish of St. Landry. ÍJL Bailey, J.

      E. J). Estilette, District Attorney, for the State. George H. Wells, for defendant and appellant.
   Wyly, J.

The defendant was indicted, tried and convicted of murder.

lie has taken this appeal.

Many irregularities in the proceedings, an,d a number of bills of exceptions to the rulings of the court, appear in the .record.

After the verdict of the jury the accused moved for a new trial, for the reason that at least twice during the trial there was a separation of the jury, a part of them leaving the court room in each instance, and once' during the introduction of the testimony for the defense. Both of said separations occurring without the permission of the court.

It appears from the hill of exceptions that the separation of the jury occurred after they had been sworn and during the introduction of the evidence.

This we regard as fatal to. the verdict.

In capital cases the jury should not be permitted to separate after they have been sworn. This precaution protects them from the improper influence of designing men, and from the force of popular opinion.

In the case of the State v. Hornsby, 8 R. 554, this court said: “ In cases not capital courts may, in their discretion, permit the jury to disperse until they'have received the charge of the court; but they must not be permitted to separate after the charge has been given. In these cases, misconduct cn the part of the jury will set their verdict aside; in capital cases, upon a separation, misconduct and abuse will always be presumed.”

In the State v. Crosby et al., 4 A. 435, the court said: “It is only in capital cases that jurors are not permitted to separate. after being sworn. In casos not capital, it is discretionary with the judge to permit them to disperse until ho has delivered to them his charge.”. The same doctrine has often been affirmed by the court.

Regarding the verdict as vitiated by the separation of the jury, we deem it unnecessary to pass on the points presented in the other bills of exceptions.

It is therefore ordered and decreed that the verdict and the judgment of the court thereon be avoided and annulled, and the case be remanded for new trial, and to be proceeded with according to law.


author: Taliaferro, J.

text:
    No. 1811.
    Joseph Aguader v. J. H. Quish and Wife.
    A deposited a lot of jewelry with B to be raffled, and affcorwards gave C, a creditor of his, an order on B for the jewelry or its proceeds. Held — That this order did not establish either a sale or elation cn payment of tho jewelry, and that 0 cannot be considered as the owner.
    from the Fifth District Court of New Orleans. Béaumont, J.

      T. A. Bartlett, for plaintiff and appelle. II. J. Leovy and I<\ A. Monroe, for defendants and appellants.
   Taliaferro, J.

This is a contest' between opposing creditors, tobe paid by preference of right upon property of the defendants held by the sheriff, subject to the judicial settlement of their respective claims. Tlie plaintiff having obtained judgment against the defendants in November, 1867, soon jsfter issued an execution, and cited one Clark as garnishee, and propounded interrogatories to him as to what property or money, if any, belonging to defendants he had in his possession, and more especially as to whether he held a certain lot of jewelry belonging to defendant’s wife.

The garnishee answered that he had in his possession a lot of jewelry which lie received from the defendant, J. H. Quish, and which was pledged to him to indemnify him against any loss that he might incur as indorser of two promissory notes, each for $500, drawn by Quish, payable to the Southern Express Company.

The plaintiff made a seizure of the jewelry in the hands of tho garnishee, but the sheriff’s return shows that he did not get possession of the effects which he purports to have seized. The answers of tho garnishee were traversed by the plaintiff, and pending the traverse the garnishee caused the express company to be made a party. The express company answered, adopting their allegations set forth in a petition previously filed in the same court, in which they prayed judgment against Clark for the amount of the notes executed in their favor by Quish and indorsed by Clark. They also prayed in their answer that they be decreed owners of the jewelry in controversy.

Judgment was rendered in favor of the plaintiff, dismissing the claim of pledge by C.lark, and that of ownership by the express company..

The express company appealed. The contest, so far as Clark was concerned, seems' to have befen abandoned, and it is now limited to the plaintiff and the express company.

The facts seem to be that in December, 1866, nearly a year before the. plaintiff obtained judgment against the defendants, Quish placed some jewelry in the hands of Clark to bo raffled. Soon aftfer this, being largely indebted to the express company and pressed for payment, Quish gave the company an order on Clark for the jewelry or its, proceeds. Small, an agent 6f the company, states as a witness that he presented the order (afterward mislaid, as he states, and not produced in evidence),' to Clark in presence of Quish, and that the order was for the jewelry. • He states that no objection was made to delivering the jewels, but that Clark and Quish both suggested that it would be better for the raffle to go on, and the proceeds paid over, ás more could be realized by raffling the articles. To this Small assented, it being understood between dll the parties that the jewelry, or if raffled, its proceeds, belonged to the company. Quish, in his testimony, states-that the order wasfór the proceeds, and that no specific sum was stated* it being understood that whatever sum ,the jewels brought, whether five hundred or eight hundred dollars, it was to go to the company. Clark, in his testimony, says the order was for the jewels or the.proceeds. In the suit of the company against Quish it is alleged id the petition that the order was for the proceeds. The only question is whether the company acquired the ownership of the jewels. We think that the evidence does not establish ownership.' The transactions between the parties in regard to the jewelry or'its proceeds do not seem to establish either a sale or a dation en payment. It is clearly shown that Quish was indebted to the Company in an amount far exceeding the value of the jewels, after crediting him with the amount of the two notes, and with payments previously made. Yet there is no specified sum mentioned as agreed upon to constitute the price, nor was there a delivery. Civil Code, articles 2439, 202612 L. 375 ; 10 L. 151; 3 An. 230.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed, with costs in both courts.


author: Ludeling, C. J.

text:
    No. 2233.
    Citizens’ Bank of Louisiana et al. v. Crooks & Maristany, Subrogated, etc., and M. Morgans, Sheriff.
    A judgment creditor cannot sell under execution tke'buildings, soed cane, and mules placed on a sugar plantation separately from the plantation. y
    Where it is manifest from tlie record that the plaintiffs in injunction would he entitled to a new writ if the one which had issued were dissolved, the case will he remanded to enable the plaintiffs to supply the evidence omitted. 11 An. 610 ; 12 An. 92, 178 ; 18 An. 111.
    from the Fifth District Court of New Orleans. Déaumont, J.

      A. Püot aud TF. O. Denegre, for plaintiffs and appellees. Homor & Benedict, for defendants and appellants.
   Ludeling, C. J.

The Citizens’ Bank of Louisiana obtained an injunction to prevent the defendants from selling a sugarhouso and other buildings, seed cane and forty-six mules, attached to a plantation,” which, it is alleged, is mortgaged in favor of the corporation for a large debt.

The reasons assigned for enjoining the sale are that the buidings, seed cane and mules on the place cannot be sold separately from the plantation. The defendants filed a general denial, and specially denied that the plaintiff had any interest in or privilege on the property seized.” They further alleged that the bank had not set forth any cause of action in the petition. There was judgment in favor of the plaintiff.

The bank offered in evidence the mortgage act and notes, but omitted to offer in evidence the execution and Sheriff’s return therein. The defendants offered no evidence whatever, except the judgment against the common, debtor.

The pleadings of the parties, the admissions in the defendants’ brief, and the judgment of the District Judge make it probable that the property described in the petition was seized and advertised for sale as alleged. The buildings on a plantation, the seed cane and the mules placed there for the cultivation of the soil cannot be sold separately from the plantation. C. P art. 645; act of 1843, p. 45 ; C. C. 455, 459. It is manifest that the plaintiffs would -be entitled to a new writ if this injunction were dissolved. Under the circumstances, justice requires us to remand this cause to enable tlie plaintiffs to supply the evidence omitted. 8 M. 170; 6 An. 764, 778, 793 ; 8 An. 459; 11 An. 546; 12 An. 18,92, 178; 18 An. 111.

It is therefore ordered, adjudged and decreed that the judgment of the lower court bo avoided and reversed, and that this case be remanded to the court a qua for further proceedings. It is further ordered that the appellee pay the costs of appeal.

Eehearing refused.


text:
    No. 1594.
    Walter L. Campbell v. Charles Waters and Mary A. Waters.
    Where a payment has been jnade on a promissory note which was given for the price of slaves, and a new note was executed for the balance due, the collection of the second note cannot be judicially enforced on account of the failure of consideration.
    from tlie Fourth District Court of Now Orleans. Théard, J.

      Ciarle & Bayne, for plaintiff and appellee, liace, Foster & B. T. Merrick, for defendants and appellants.
   Taliaferro, J.

The defendants are sued on a promissory note for $3337 70, with interest at eight per cent, per annum from the thirtieth October, 1802. The defense is a failure of consideration, the note having been given for the payment of the price of slaves. The plaintiff meets this plea by contending that the original debt was novated, as shown by the defendants themselves. Judgment was rendered in favor of the plaintiff, and the defendants have appealed.

It appears that in April, 1800, the defendants purchased from plaintiff two slaves, at the price of $3504, for which they executed their promissory note. Subsequently, in December, 1801, they paid the plaintiff six hundred dollars and executed a new note, the one sued on, for $3337 70. This note was drawn payable to the commercial firm of Fellows & Co., and was by them indorsed; and it was further secured by a mortgage to them or to any future holder of the note, on the two slaves purchased from the plaintiff. It is evident that the new note was taken for the remainder of the price of the slaves, after the payment of six hundred dollars was made on the original note. The second note, the one sued upon, is therefore vitiated from the same cause that rendered null the first note.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that there be judgment in favor of the defendants, releasing them from all obligation to pay the note sued on, the plaintiff and ap-pellee paying costs in both courts.


author: Taliafereo, J.

text:
    No. 1789.
    Police Jury of the Parish of Jefferson, Left Bank, v. The Heirs of D. F. Burthe and Victor Burthe, Agent.
    The Constitution of the State of Louisiana adopted in 1864, was provisional in its character, and the legislation had under it partook of the same nature.
    The Convention that formed the Constitution oí 1868, was competent to annul or continue in force any of the provisions of the Constitution of 1864, or the laws passed thereunder.
    The act of the Legislature of the sixteenth of March, 1S66, No. 122, exempting certain property from taxation during the war, was annulled by article 149 of the Constitution of 1868.
    By the act of the Legislature of March 28, 1867, the assessment of taxes for the year I860, and the consecutive years to 1864, inclusive, were extended until the first of January, 1870. Suits brought for the taxes on property for these years is therefore premature and must abate until the first of January, 1870.
    from the Second Judicial District Court, parish of Jefferson. Fugué, J.

      B. C. Blliott, for plaintiff and appellant, Victor Burtiie, for defendants and appellee's.
   Taliafereo, J.

This is an action to enforce the payment of certain taxes alleged to he owing the parish of Jefferson by defendants, ,who refuse to pay all that is claimed of them. They admit indebtedness for a portion of the taxes demanded, but aver that they are not legally bound to plaintiff for the taxes assessed against them for the ¡year 1802, and the consecutive years to 1866, inclusive. The judgment of the lower court exonerated the defendants from the payment of the taxes for these years; rendering judgment in favor of the plaintiff for the amount of the taxes for the year 1861, three hundred and fifteen dollars, without interest, of which sum a tender had been made to plaintiff, who was adjudged to pay the costs. The plaintiff has appealed.

The plaintiff’s claim is resisted on the ground that the property assessed was taken possession of about the middle of the year 1862, by the Federal military authorities, who converted it to various uses, and leased several of the tenements on said premises to different tenants from whom they derived a revenue sufficient to have paid the taxes now claimed from the defendants. That their property, the taxes on which they are now required to pay, was not delivered to them until some time in the year 1866. That they have in vain endeavored to obtain from the United States Government remuneration for the use of the property of which they were forcibly deprived. The defendants also allege that they are relieved from the payment of taxes for the year 1862, and the consecutive years to 1865, inclusive, by the act of the Legislature of the sixteenth of March, 1866, No. 122, page 234. On the part of the plaintiff it is held that the provision's of that act are unconstitutional inasmuch as they infringe the vested rights Of the parish of Jefferson to levy and collect parish and municipal taxes for public purposes, and they further aver that said act of the Legislature is annulled by article 149 of the State Constitution of 1868.

It is moreover contended that this act of the Legislature of March 16, 1866, is violative of the provisional Constitution of 1864 (article 124), which declares that taxation shall be equal and uniform. The act it is held relieves a certain class of the people from the payment of taxes for four years and thus infringes that uniformity in the payment of taxes intended by the Constitution to be preserved. This objection is not without weight. The purpose of the act seems to have been to relieve from the taxes of four years those persons whose property had Leen seized and occupied for more than three months in any one year by United States military forces. The operation of the act would be clearly unequal. Hundreds of people of the State have been forcibly deprived of the use of their property, especially during the years 1863 • and 1864, by United States military forces without their occupancy of such property for even á week,

In tlie case where plantations were destroyed by tlie burning of the buildings, fencing, etc., upon them, it was rendered entirely impracticable for the owners to reside upon and cultivate them. It is matter of history and public notoriety that very many of the people of this State under such circumstances and within the arena of active warfare were compelled to abandon altogether tlieir plantations and homes, and seek at a distance, from the seat of war, temporary places of abode until the restoration of peace. And yet under the act in view persons in this category are not exempted from the payment of the taxes of the years 18C2, 18(33, 1864 and 1865, because their property was not occupied by United States military forces for more than three months in any one year; when the reasons for their exemption are as strong as in the case of those who are relieved, and which establish the principle upon which the relief is extended. This is however a law not assessing a tax, and we do not consider it in contravention of the constitutional provision referred'to.

The Legislature of 18G6 derived its authority to enact laws from a State government not recognized itself to be a legal State government. That State gavernment was provisional only and liable at any time to be altered, modified, or abolished by the Congress of the United States. The enactments of a Legislature deriving its authority from so infirm a source necessarily partook of the same provisional character, and their validity was contingent upon any action that might subsequently be taken in regard to them by the General Government acting through the military authority established in 1866, and which was paramount pending the re-establishment of a valid State Government. To the people of the State this paramount jurisdiction passed on the adoption of the Constitution of 1868, and its subsequent approval by Congress ; and they were competent, speaking through that Constitution, to ratify or annul the legislation of the antecedent provisional State Government or any portion of that legislation. By the one hundred and forty-ninth article of the Constitution, the" act of tlie Legislature of sixteenth of March, 1866, No. 122, page 234, was invalid. The plea of the defendants that they are exonerated by that act from the payment of parish taxes for the years 1862, 1863, 1864 and 1865, will not avail them.

By the act of the Legislature of March 28,1867, the assessment and collection of taxes for the year 1860, and the consecutive years to 1864, inclusive, were extended to first of January, 1870. The suit brought by plaintiff to enforce the payment of the taxes for these years is therefore premature and must abate, the defendants not being bound by law to pay these taxes before tlie expiration of the term granted to them. The defendants admit their indebtedness for the taxes of 1861, and aver that they tendered plaintiff the sum of $315 in payment, which was refused. They claim that this tender of payment relieves them from the payment of interest and costs.

For tlie reasons assigned it is ordered, adjudged and decreed that the judgment of the District Court he annulled, avoided and reversed; that the proceedings taken by plaintiff against the defendants to enforce the collection of taxes for the years 1861, 1862, 1863 and 1864, he and the same are hereby annulled and set aside as premature, reserving to the defendants the benefit of their plea hereafter of tender of payment of the taxes for 1861.

It is further ordered, adjudged and decreed that the plaintiff recover from the defendants the amount of taxes claimed in the petition for the year eighteen hundred and sixty-five, to wit, the sum of three hundred and forty-two dollars and thirty cents, with eight per cent, interest per annum from the first of January, 1866, until paid and three dollars cost of recording tax bills with priviledge upon tho property assessed.

It is further ordered that defendants pay costs of the lower court and plaintiff those of appeal.

Rehearing refused.


author: Taliapeeeo, J.

text:
    No. 1788.
    Police Jury of the Parish of Jefferson, Left Bank, v. The Metairie Race Course Association.
    Ses the case No. 1780, reported 'above.
    from the Second Judicial District Court. Dugué, J.

      D. G. JElliotl, for plaintiff and appellant. II. D. Ogden, for defendants and appellees.
   Taliapeeeo, J.

This case presents substantially the same issues as those in the case of the same plaintiff against Burthe et al., just decided, except that in this case suit is brought for the parish taxes for the year 1866.

The case being considered, it is ordered, adjudged and decreed that the judgment rendered in this case by the District Court be annulled, avoided and reversed. It is further ordered, in relation to the taxes sued for for the years 1861, 1862,1863 and 1864, that the suit abate for the reasons assigned in the case of the plaintiff v. Burthe et al.; that plaintiff recover from defendants the sum of seventy dollars, amount of taxes for the year 1865, with eight per cent, interest from first January, 1866, and seventy-five cents costs of recording tax bill. Also, that plaintiff recover the further sum of eighty dollars, amount of taxes for the year 1866, with interest thereon from the first January, 1867, and seventy-five cents costs of recording tax bill. The plaintiff’s right of lien and privilege upon the property assessed is hereby recognised.

It is ordered further that defendants pay all costs of suit,

Rehearing refused,


text:
    No. 1790.
    Police Jury of the Parish of Jefferson, Left Bank, v. L. F. Foucher.
    See the caso No. IT89, reported above.
    from the Second Judicial District Court. Fugue, J.

      B. G. Elliott, for plaintiff and appellant. E. Bermudez, for defendant and appellee.
   Taliaferro, J.

Tins case presents substantially the same issues as those in the case of t'oe same plaintiff v. Burthe et al., just decided.

For the reasons stated in that case, it is ordered, adjudged and decreed that the judgment of the District Court rendered in this case be annulled, avoided and reversed. It is further ordered that the suit abate as to the demand of payment of the taxes claimed for the years 1863 and 1864; that plaintiff recover from defendant the sum of six hundred and twelve dollars fifty cents, amount of taxes for the year 1865, and the further sum of one hundred and ten dollars and ten cents, assessed to defendant for levee repairs for the same year, with eight per cent, interest on said sums from the first January, 1866, and one dollar fifty cents costs of recording tax bills, with lien and privilege on the property assessed.

It is further ordered that defendant pay costs in both cases.

Rehearing refused.


text:
    No. 1547.
    Francis M. Fisk v. J. M. Moss.
    Whore the appeal is taken in open court, citation of appeal to the appellee is unnecessary. C. P. 573.
    A motion to dismiss the appeal for want of a proper bond will not be noticed by the Supreme Court, if not made within three judicial days from the filing of the record. 12 An. 350.
    from the Fourth District Court of New Orleans. Théard, J.

      T. A. Baiilelte, for plaintiff and appellant. A. Ganonge, for
    defendant and appellee.
   Ludeling, C. J.

The appellee has moved to dismiss this appeal on two grounds :

First — Because there is no citation.

Second — Because there is no bond.

The appeal was taken in open court, at the- same term at which the judgment was rendered. This dispensed with citation Art. 573 C. P.

The objection to the bond cannot be noticed, as the motion to dismiss was not made within three judicial days'after the record was filed. 2 An. 138; 3 An. 326 ; 11 An. 613; 12 An. 350.

On the day fixed for the trial of the cause the plaintiff failed to ap pear, after having been called according to law, and the District Judge dismissed the suit, on motion of the defendant. IVe perceive no error in the judgment.

It is therefore ordered, adjudged and decreed that the judgment of the District Court he affirmed, and that appellant pay costs of appeal.

Rehearing refused.


author: IIowe, J.

text:
    No. 6847.
    Molony Brothers & Co. v. Rugeley, Blair & Co.
    Where all the facts are spread upon the record, the Supreme Court will not take into consideration the charge of the judge a quo to the jury. 6 Martin, 408.
    from the Fifth District Court of New Orleans. JEggleston, J.

      Durant ds llornor, for plaintiffs and appellees. Ciarle c& Bayne, for defendants and appellants.
   IIowe, J.

The plaintiffs alleged that on the twentieth March, 1858, they bought from defendants about 33,000 sacks of salt, represented by defendants as stored at the Brooklyn Warehouse, in Algiers, and as being the cargoes of the ships Sjparlc of the Ocean, Bamberg, Simoda and Courier. They averred that 11,880 sacks of this salt were not in the warehouse at the time of sale, and were never delivered to plain- ■ tiffs, and therefore claim to recover back the price paid for this amount, the insurance paid by them, and damages for non-delivery.

The defendants answered, admitting the sale, and averring ‘‘that they fully performed all their duty in reference to 'said sale, and made due delivery according to the custom of merchants and the requirements of law, and that plaintiffs accepted said delivery and acknowledged the same.”

The plaintiffs subsequently filed a supplemental petition, claiming the value of the cargo of the ship Bamberg with damages, the right to sue for which had been reserved in the original petition, on account of this cargo being involved in litigation with other parties in the Fourth District Court, and for which they averred that they had paid the defendants the sum of §7714 40.

To this the defendants filed a general denial.

The case was tried before a jury, who found a verdict for plaintiffs. V. motion for a new trial was overruled, and judgment rendered in iavor of xfiaintiffs, and the defendants have appealed.

Our attention is just called to the bill of exception in the record.

In regard to the cargo of the ship Bamberg, which the defendants failed to deliver, and which was involved in the litigation which is full j reported in 14 Annual, pp. 394, 395, the defendants sought to prove that the contract in the shape of a sale to Leland from Casey & Co. of this cargo was in reality a pledge. The court refused to permit this, on the ground of irrelevancy, and we think correctly. Whether this cargo was pledged or sold to Leland, it could in neither case have been delivered to plaintiffs. It was adjudged by this court to Leland ; defendants never delivered it to plaintiffs; the plaintiffs never obtained it.

The defendants sought to prove by Ellis that the salt in question was in the warehouse in December, 1857. We do not think the court erred in refusing to permit this proof to be made.

The question before the jury was whether the salt was there on the twentieth March, 1858, at the time the sale was jnade, and the property represented to be there by tbe defendants aa yendofg,

Nor do we tliink the court erred in refusing to permit C. S. Martin to be examined as a witness for defendants. He was a member of tbe firm of Casey & Co., tbe warehousemen, wbo were responsible for tbe salt, and were interested to show that tbe salt was really in tbe warehouse on tbe twentieth March, 1858, according to their receipts. As tbe law stood at tbe time of tbe trial (1860) he was clearly incompetent on tbe ground of interest. See Greenleaf on Ev. § 392 to 403, and cases cited.

Tbe defendants also excepted to certain points in tbe charge of tbe judge a quo, but we do not And it necessary to pass upon these exceptions. Tbe case is before us on its merits. The record clearly shows that tbe plaintiffs purchased tbe salt aud paid the defendants for it tbe price agreed to be paid; that the defendants, as tbe plaintiffs charge, did not deliver tbe amounts sued for, and are liable for tbe sum accorded by tbe judgment. It would be fruitless to discuss tbe ingenious objections of the defendants to' tbe charge of tbe court, when tbe case is plainly with tbe plaintiffs in tlie evidence, and tbe verdict is fully justified thereby. No improper evidence was received — no proper evidence was rejected. In Maurin v. Tostin, 6 Martin 493, this court said: “ It is useless for us to take into consideration tlie propriety of a charge of an inferior court to tbe jury, when tbe whole facts are spread upon tbe record. Eor, to send back tbe cause for a new trial with directions to withhold a part of the charge excepted to, or to give another would be productive of delay only; as upon a new appeal whatever might be tbe verdict, unless it was a special one, it would be our duty to weigh tbe evidence as if there was no verdict.” See also 4 M. 327 ; 7 N. S. 198; 4 La. 76.

Tbe language of tbe eminent judge whom we have just quoted, applies with special force to tbe case now before us, which was tried • about nine years ago.

Eor tbe reasons given, it is ordered and adjudged that tbe judgment appealed from be affirmed with costs.


author: Howe, J.

text:
    No. 1488
    James Nelligan The Citizens’ Bank of Louisiana.
    The military orders issued to the banks of New Orleans during the late war directing them to make a statement of such deposits as belonged to officers of the army of the Confederate States, and directing them to pay over to the proper officer of the Quartermaster’s Depart* ment of the United States all moneys in their possession belonging to or showing upon their books to the credit of such persons, was an attempt on the part of the military authorities to sequester these funds.
    A Bank cannot bo relieved from paying a deposit to the proper owner on the ground that it * has paid over the amount of the deposit in Confederate treasury notes to the Quartermaster of the United States army, under military orders, unless it is shown that the deposit was made in the bank in Confederate money with the knowledge of the depositor.
    The sequestration and taking possession of Confederate treasury notes hy the military authorities of the United States, which che hanks of the city of New Orleans had given over as the deposits of officers engaged in the rebellion, did not amount to a sequestration by the United States of the credits of said parlies, against the banks.
    Confederate notes haying been issued in violation of law, and against good morals and public policy, could not form the basis of a seizure or sequestration so as to exonerate the banks from liability to their depositors.
    from the Fourth District Court of New Orleans. T heard, J.

      Breaux & Fenner, for plaintiff and appellant. Armand Pitot, for defendants and appellees.
   Howe, J.

The plaintiff sues for thirty-five hundred dollars, the amount of a deposit made hy him in the hank of defendants on the fourth January, 1862. The defense set up in the answer is that the amount of the plaintiff’s deposit was paid over to the quartermaster of the United States army on the twenty-third August, 1863, at New Or-' leans, in pursuance of military orders, as the funds of an officer in the rebel army, a receipt .taken and the defendants thereby discharged from all liability.

There was judgment for defendants and plaintiff has appealed.

It appears hy the evidence that at the time stated in the answer, the defendants, in what they claim to have been a compliance with military orders, delivered to Captain J. W. McClure, acting quartermaster, the sum of thirty-five hundred dollars, in Confederate notes, as the balance of deposit duo to plaintiff. We are of opinion that, to enable them to successfully urge this fact as a defense to- the demand of the plaintiff, they must show that the deposit made hy the plaintiff was made in Confederate notes. The military orders were intended to sequester property.

The first, of date August 7, 1862, directed the banks to make a statement of such deposits as belonging to officers of the army of the Confederate States (among other classes of persons), and to hold the same till further action. The second order, of date August 17,1863, directed the hanks to pay over to the proper officers of the quartermaster’s department all moneys in their possession belonging to or standing; upon their hooks to the credit of the same classes of persons. By am official communication of August 20, 1863, the commanding general declared “the transfer of these balances from the hanks to the officers of the government is not in the light of an absolute forfeiture.” Clearly, then, the military authorities attempted to sequester. If in this case that attempt was successful, the plaintiff has no claim. But if the attempt was abortive the defendants can,hardly with good grace complain of the plaintiff’s good fortune. Now, whether the sequestration was actually made will depend on the solution of the question of. fact whether the defendants received Confederate notes on deposit, from, plaintiff, or lawful money.

If the deposit was made in lawful money, we cannot perceive on what principle of law or equity the defendants; could discharge themselves from liability to plaintiff by the delivery to-the quartermaster of. Confederate notes proved in this. case.

It is however contended with much vigor by defendants that if the United States government is satisfied with this so-called payment, the plaintiff is without interest to complain; that his claim was. confiscated, and even if the hank did not pay over wliat it had received as a deposit, it is for the government, and not for the plaintiff, to make further demand, and upon this point they refer to the case of Mandeville v. the Bank of Louisiana, 19 An. ’392. "

That case does not properly support those view's. There, a real payment of the amount of plaintiff’s deposit ha.d been made to the quartermaster, in lawful money ; and the court declared that this payment necessarily released the bank. In other -words, the sequestration was actually made. But the delivery of Confederate notes in discharge of an obligation arising from a deposit of lawful money is not a payment, without thq consent of the creditor; nor would such delivery be- a compliance with an order tp turn over the balance of such a deposit to. the quartermaster. If under such circumstances the quartermaster received Confederate note,s only, he failed-to-obtain what he was trying to obtain — the defendants failed to give up to him what they ought to have given up.

We find it necessary to inquire, then, in. this case, whether, the defendants have shown as part of their defense that the deposit by plaintiff was made in Confederate notes.

Upon this point the plaintiff’s testimony is substantially as follows :

I wept to the bank pn the fourth January, 1862, and as I got inside the door, I was'stopped by Mr. Denégre, president of the bank. . I was asked by him bow bis son was, and he invited me into bis room on the left hand side of the entry. lie asked me if I was going to make a deposit. I. had in my possession at the time, the check marked ‘ A ’ and some money. I dp not n.ow recollect hut what Mr. Denégre took my money and check, and had the entry made in the bank hook marked ‘ B,’ and returned the book to me with the entry made in it; I handed the check and money to Mr. Denégre, and ho had the entry made. I will not he positive as to Mr. Denégre making the deposit for me; but am positive the check marked A' and four hundred or five hundred dollars which I had in my pocket, constituted the deposit made. We had no conversation in regard to Confederate money. The check marked A’ was received from Mr. Gerard Farrell for money loaned by me to him before the war. My object in drawing the money and depositing it in bank was to put it in aplace of safety. I left the next day for Virginia, and considered it in a place of safety. I had nothing more to do with the matter until after the war. When Farrell gave me the check he did not say anything about’ Confederate money. I supposed it to be the same as I had loaned him.” * * * *

Cross Examined. — * * * “I was only here three days in 1862, and cannot say what the currency was at the time. All the transactions I had were in gold: I can’t say whether the money I gave to Mr De-négrc was in gold, Citizen Bank notes, or what kind it was. I was not long enough in town to find out the currency then prevailing. When I went to Virginia I took one thousand dollars in gold, and when I came back I brought back five hundred dollars. I can’t say what the value of Confederate currency was. In 1862, when I was in Norfolk, Virginia, gold and silver were current. * * Where I was, I saw more gold and silver than Confederate money. I did not look into the bank book when Mr. Denégre returned it to me.” Being asked, were you not surprised in finding the words current funds instead of cash written in the book ?” says: “ I never paid any attention to it; not being accus-'' tomed to banking business, I trusted the officers.”

The check referred to in this testimony is an ordinary bank check, drawn by Gerard Farrell on the defendants, for $3,294 90.

John G. Gaines, for defendants, testified that the currency of the country at that time was Confederate States treasury notás; that any check drawn on the bank, unless otherwise specified, would.be paid in Confederate money; that Farrell’s check was payable and would have been paid in Confederate money; that from September, 1861, it was understood with depositors that all checks were payable in Confederate money, unless there was a special deposit, and that there was no special agreement with Mr. Farrell as to the payments of his checks. “In most of the bank books,” continues this witness, “ a printed notice was posted notifying all depositors that all deposits made or checks drawn would be in Confederate money The omission to post the notice in the book marked ‘B ’ [the plaintiff’s bank book], was through error or mistake. Whenever the notice was omitted it was done so through error.” The bank book of Farrell was put in evidence by defendants, and from that it appears that on the sixteenth September, 1862, the depositor, Farrell, had a balance in the bank of $7481 17, in lawful money. This balance does not appear to have been reduced at the time the check to plaintiff was drawn.

It will be perceived at once that this case differs from that of Erwin’s Executors v. Bank of New Orleans, lately decided, and resembles in some important features tlie case of Weaver v. Anfoux, 20 An. p. 1.

Tlie plaintiff for a loan of lawful money receives the check of Farrell, drawn upon a bank in which Farrell has a large deposit in lawful money. Farrell does not inform plaintiff that the check will be paid in Confederate notes. The check does not convey any such idea. The officers of the bank in receiving it on deposit and giving the plaintiff credit for the amount do not so inform him. We find no reason in this record to doubt his statement that he supposed it to call for the same kind of money that he loaned Farrell before the war. As for the balance of the deposit there is no evidence to show that it was other than lawful money.

From the evidence as a whole we conclude, that the defendants on whom the onus was under the pleadings, have not established that this deposit was made in Confederate notes, and that therefore proof of the delivery of $3500 of such notes to the quartermaster, did not establish a discharge of the liability of the defendants.

It is therefore ordered and adjudged that the judgment appealed from be avoided and reversed, and that the plaintiff have judgment against the defendants for the sum of thirty-five hundred dollars with legal interest thereon from September 1, 1865, until paid, and costs in both courts.

Rehearing refused.


text:
    No. 1542.
    Widow Aline Boulin v. James Rainey.
    Credits on the hack of a promissory note to be evidence against the maker must be shown to have been placed there with his knowledge and consent. *
    The plea of general denial only admits the Mguature on the face of the note. An agreement on the back of the note, signed by the maker, does not form a part of it, and is not admitted by the general denial.
    _Ol PPEAL from the Sixth District Court of New Orleans. Duplantier, J.

      Jerome Meunier, for plaintiff and appellee. Randolph & Singleton, for defendant and appellant.
   Ludeling, C. J.

This suit is instituted on two promissory notes— one for five hundred and ninety dollars and seventy-three cents, due fifteenth of March, 1864 ; the other, for the sum of three thousand three hundred dollars, due twelfth of March, 1860.

The plea of prescription has been filed in..this court.

Citation was served on the defendant in this case on the seventh of May, 1867.

The note for five hundred and ninety dollars and seventy-three cents is not prescribed. The other note is prescribed on its face. But it is contended by the plaintiff that the payment of the note was proro-gated by agreement with defendant and that partial payments were made at different times as appears from the indorsements on the back of the note, and thus prescription was interrupted. These memoranda were not proved or offered in evidence, and although they might he proof against the party who had possession of tho note, if offered in evidence, they prove nothing against the defendant, unless it he established that they wore written hy him, or with his knowledge and consent, or at least that the credits were given before prescription had accrued and at a time not suspicious. 12 An. 83, 661.

The renewal on the hack of tho note, purporting to have been signed hy the defendant, was not offered in evidence — non constat, that if it had been, the defendant would not have objected to it and denied his signature. His general denial admitted Ms signature to the note only. We do not consider the agreement on the hack of the note a part of it.

We do not regard this case as coming witliin the rule announced in Maxwell v. Kennedy, 10 An. p. 798.

The plaintiff has asked us to remand the case if wo considered the plea of prescription well founded.

It is therefore ordered, adjudged and decreed that the judgment of the lower court in favor of the plaintiff for the sum of five hundred and ninety dollars and seventy-three cents, with eight per cent, per annum interest from the twelfth of March, 1863, ho affirmed, and that in other respects it ho avoided and set aside. It is further ordered that this cause he remanded to the District Court to he tried on the plea of prescription, and that the defendants pay the costs of the District Court, and that the appellee pay costs of the appeal.


text:
    No. 2063.
    State of Louisiana, on the relation of A. Hero, Jr., v. Armand Pitot, Jr.
    Where tbe transcript of appeal is duly certified l>y tho clerk of tho District Court as containing all the evidence, etc., adduced on the trial, it is sufficient to enable the Supreme Court to decide the case on its merits and the appeal will not ho dismissod. 20 An. 213.
    The affidavit of the appellant that his interest in the controversy exceeds five hundred dollars is sufficient to give tho Supreme Court jurisdiction of the appeal.
    The right to an office can not he inquired into or tested under existing laws on an application for a writ of mandamus. Sternberg v. Legard, ante page 18.
    from Seventh District Court, parish of Orleans. Oollens, J.

      Honor & Benedict, for relator, appellant, Gharvet & JDuplantier and JS. Bermudez, for defendant and appellee.
   Wyly, J.

Defendant and appellee moves to dismiss this appeal because the record does not show a note of evidence, statement of facts, hill of exception or assignment of errors, and because the interest of the plaintiff in the matter in disimte does not exceed five hundred dollars.

The clerk of the District Court has certifled that the transcript filed in this court contains a true and correct copy of all the proceedings had, documents filed and evidence adduced on the trial,” and this suffices to enable this court to consider the case and decide it on its merits. 20 A. 213.

The appellant has hied in this court his affidavit that the matter in dispute and his interest therein exceeds five hundred dollars.

The matter in dispute is the possession of certain notarial records in the hands of the defendant, which the relator as custodian of notarial records of the parish of Orleans, under act affirmed twenty-eighth March, 1867, sues to recover.' Ilis interest in said records is the fee3 he is entitled to hy said act for certifying copies thereof. His affidavit establishes that his interest therein exceeds five, hundred dollars, which gives this court jurisdiction.

The motion to dismiss is therefore overruled.

On the MeRits.

This is a proceeding hy mandamus to recover the records of a notary public who is alleged to he no longer an officer.. ..

The relator, as custodian of notarial records of the parish of Orleans, claims to be entitled to the records' in possession of the defendant hy virtue of the third section of the act-of twenty-eighth March, 1867, which provides that it phail he the duty of said custodian of notarial records to collect together and safely beep,in his possession the records of all notaries in the parish of Orleans who shall have ceased to he such, either hy death, removal or otherwise, except such records as are already in the custody of other notaries.”' * * Acts 1868, p. 281. He alleges that the defendant, A. Pitot, Jr., has in his possession -and custody the acts and other instruments of writing passed before him as notary public in and for the parish of Orleans; and that he is not now a notary public hy reason of not having the consent of the Senate to his appointment; also because his appointment to office under the Constitution of 1864, ceased hy virtue of the organization of the government under the Constitution of 1868.

He avers that said Pitot claims to exercise the functions of a notary and unlawfully detains the notarial records in his office.

The defendant appeared and excepted on the ground that the proceeding hy mandamus is illegal; that the relator has no cause of action against him; that he is a duly qualified and commissioned notary public in the parish of Orleans, not having resigned' or been removed, and that he is entitled to retain possession of the .papers, documents and other effects belonging to his office.

The only evidence we find in the record is the commission of the relator as custodian of notarial records and his oath of office, dated sixth October, 1868, and the commission and-oath-of office of the defendant as notary public, bearing date fifteenth April, 1867.

From a judgment dismissing his petition the. relator has appealed The right of the relator to recover the object hA'sééhs depends on the solution of tlie question whether or not the defendant is entitled to Ms office as notary public. If the allegations of the defendant be true, that he is a duly qualified and commissioned notary, lawfully in the discharge of his official duties there is no cause of action against him. He is entitled to the papers and documents belonging to his office.

If, on the other hand, his term of office has ceased because of Ms appointment not having been confirmed by the Senate, or because of the operation of the one hundred and fiftieth article of the Constitution of 1863, the relator has a cause of action, and can claim the records confided to his custody by law.

The relator bases his claims on the ground that the defendant has ceased to be an officer, and it is his duty under the act of twenty-eighth March, 1867, to take the custody of the records of his office.

We can not determine tire rights of the relator in the promises without deciding upon tlie right of the defendant to the office of notary public. This we can not inquire into in a proceeding by mandamus.

In the case of the State in the relation of Sternberg v. Legarde, lately decided, we held that “the riglit'to an office can not be tested under existing laws on an application for a writ of mandamus.” We still adhere to that opinion.

The right of the defendant to the office of notary public can be tested under the act of the fifteenth of October, 1868, re-enacting “an act providing a remedy against usurpations, intrusion into or the unlawful holding or exercising a public office or franchise in this state.” Acts 1868, 199. In a proceeding under said act the questions involved in this case might be determined, but as they are now presented they can not be entertained and considered.

It is therefore ordered that the judgment of the court below bo affirmed with costs.

Rehearing refused.