text:
    No. 11,641.
    John Hill et al. vs. T. S. Fontenot, Sheriff, etc. A. L. Abbott vs. Same. Alma Aiken vs. Same. Alfred Slidell vs. Same. Levy Dusson et al. vs. Same. J. Meyers & Co. vs. Same. L. Godchaux et al. vs. Same. L. Godchaux vs. Same. Vincent Boagni vs. Same. J. E. Vannoy vs. Same. Boagni & Levy vs. Same. Eliza Dixon vs. Same. Clementine Phelps vs. Same. W. C. Scott vs. Same. Boagni & Levy vs. Same.
    The tax of five mills imposed by the Levee Board o£ the Red River, Atchafalaya and Bayou Bceuf Levee District under the act creating said board is authorized by the Constitution. Constitution, Art. 214, Act No. 79 of 1890; No. 46 of 1892, Sees. 6 and 10.
    The oo.urt again affirms that the acreage assessment for levee and drainage purposes, authorized by the acts creating the Levee Boards, is not within the scope of the limitations in the Constitution on general taxation. Oharnock vs. Levee Company, 38 An. 327; 39 An. 455; 43 An. 15; 45 An. 1232.
    Under those Levee Board Acts of 1890 and 1892 all alluvial lands within the districts subject to overflow are subject to this acreage assessment, except those reported by the engineers to be incapable of protection by the system of levees and drainage proposed by the acts. Secs. 1,6,10,15.
    The acreage assessment of five mills per acre is imposed on the theory that the expense of levees and drainage should he borne by all the lands, each acre bearing its proportionate share, the act supposing that it cost as much to drain one as it does another acre, and that each aere is benefited to the extent of its proportionate share of the expense; this acreage assessment without reference to the value of the land is approximative equality, perfect equality of taxation being unattainable; finds recognition in our past levee and drainage legislation and has had the sanction of our courts.
    It is a legislative question to determine whether the alluvial lands of the State subject to overflow can be reclaimed by drainage and levees, and it is also the legislative function to prescribe the rule and objects of taxation to effect this reclamation. No court can set aside the legislative determination in this respect unless the legislation violates the organic law. Cooley on Taxation Chapter 20, p. 428, 429; Levee cases already cited.
    It must be a clear caseto authorize the court to set aside an assessment for local improvement imposed by legislative authority and hold in opposition, to the legislative judgment that lands assessed for the expense ol improvement can never be benefited by the proposed improvement; this is not such a case-Ibid.; also 8 An. 472; 12 An. 517; 2 An. 186.

      APPEAL from the Eleventh District Court, Parish of St. Landry. Perrault, J.

      Thomas H. Lewis and E. North Cullom for Plaintiffs, Appellants.

      White & Thornton and John N. Ogden for Defendant, Appellee.
   The opinion of the court was delivered by

Miller, J.

The plaintiffs in these consolidated eases resist the payment of the taxes for levee purposes, levied by the Board of Commissioners of the Red River, Atchafalaya and Bayou Boeuf Levee District, under the authority of the legislative act No. 79 of 1890, amended by act No. 46 of 1892. This legislation provides in the sixth section for the tax authorized by Art. 214 of the State Constitution, to be levied by the board on all property in the district liable to taxation for levee and drainage purposes, and the tenth section of the act empowers the board to levy besides an acreage tax on all such lands of five cents per acre. Under these acts the board imposed the tax of five mills authorized by Art. 214 of the Constitution and the act, and besides levied the acreage tax in accordance with the tenth section of the act.

The petition assails these taxes on the grounds substantially that petitioners’ property alleged to be neither reclaimed or susceptible of reclamation by the levee system is not within the scope of the taxes authorized by the acts; that the taxes if applied to the property, violate Art. 1 of the Constitution of the State, announcing the protection of life, liberty and property to be the object of government, and Art. 156 prohibiting the takiDg of private property without compensation. It is charged also the taxes applied to petitioners’ property violate the rule of uniformity of taxation, and taxation according to value prescribed by Arts. 203 and 218 of the Constitution. In this connection it is averred that cleared and cultivated lands, worth more, are taxed no higher than the lands of petitioners, alleged to be swamp and overflowed; that the levee district is a subdivision of the State and the valuation put on the property for State purposes is not the basis for the taxes claimed; it is charged that the acreage tax of five mills exceeds the constitutional limit, and is not an ad valorem tax; that the acreage tax is excessive; that in disregard of the equality and uniformity of taxation exacted by the Constitution, petitioners’ lands in the Atchafalaya swamp are assessed for the acreage tax as high as cleared land fit for cultivation; the acreage tax it is alleged is really a tax of fifty mills per annum, and the answer insists that the petitioners’ lands in the swamp, valuable only for timber, can never be improved or augmented in value by the levee system, and hence are exempted from taxation under these legislative acts, based as they are on the theory that the taxes will improve and increase the value of the lands to be taxed. The answer maintained the validity of the taxes, as did the judgment of the lower court, and from that judgment, refusing the injunction to restrain the collection of the taxes, the plaintiffs prosecute this appeal.

It is the mandate of the Constitution that the State shall be divided into levee districts, placed under tbe charge of boards of levee commissioners, and for the erection, maintenance and repairs of the levees, these boards are authorized to levy a tax on the property liable to taxation within the alluvial portions of the district subject to overflow. The limit of this tax was five mills, enlarged by the constitutional amendment of 1884 to ten mills if the increased taxation was approved by the vote of the tax-payers within the alluvial part of tbe district subject to overflow. Constitution, Art. 214; Amendment Acts 1884, No. 112, p. 149. Under this article of tbe Constitution, tbe commissioners of the Red River, Atchafalaya and Bayou Bceuf Levee District have imposed this tax of five mills. The courts have no jurisdiction to exert with respect to this tax, save to ascertain if the property on which it rests is of the character specified in the Constitution. It is not susceptible of controversy that the property taxed is alluvial under the taxing district, and subject to overflow. In so far as this controversy may be deemed directed against that tax, the answer is in theory organic law.

The plaintiffs’ argument assails With great vigor the acreage tax of five cents per acre directed to be imposed by this act of 1892 on all lands in the district subject to taxation for levee and drainage purposes. The previous decisions of this court have maintained that this assessment or acreage tax is not within the limitations in the organic law on general taxation, and are to be viewed as assessments for local improvements. The discussion in this case recognizes the finality of these decisions, and concedes corresponding limit of judicial inquiry. Charnock vs. Levee Company, 38 An. 327; Planting Company vs. Tax Collector, 39 An. 455; Munson vs. Commissioners, 43 An. 15; Minor vs. Sheriff, 43 An. 337; George vs. Sheriff, 45 An. 1232.

It is contended on behalf of plaintiffs, their land can derive no benefit from levees or drainage, and that the assessments resting on .the theory that the lands can be thus benefited, under the guise of securing an impossible improvement, virtually propose the confiscation of the property, in violation of the constitutional provision prohibiting the taking of private property without compensating the owner. To the legislative judgment is necessarily submitted the question whether this benefit can be secured; a judgment not final, it may be claimed, but certainly not for judicial revision, except in clear instances of wrong and oppression. If rightfully imposed, the assessments can not be deemed confiscative, and the constitutional objection remits us to an examination of the question of benefit.

It is urge 1 on us, too, that the lands, by reason of their situation and condition, are not within the scope of this levee legislation. By this is meant that the legislation applies only to lands capable of receiving protection from levees, and the argument claims these lands are beyond that protection. The testimony for plaintiffs shows the lands are overflowed from back-water as well as by rain-water. The witnesses testify that no leveeing would free the lands from backwater, and would tend to prevent the escape of rain-water; that near ' the water courses there is a ridge of light, sandy soil, but the lands slope to the swamp three-fourths to a mile back; that there are no settlers on the west side of the Atchafalaya below Petite Prairie, and none on the Courtableau for twelve miles from its mouth. With reference to a large part of the lands, the testimony is they are uninhabitable; that they are valuable only for timber, and, it is testified, can not be reclaimed except by levees and drainage, the cost of which would far exceed the value when reclaimed, if that ever could be accomplished. On the other hand there is the testimony produced by the board tending to show that by the levees and drainage proposed, the desired protection of the lands can be secured. In view of the character of the lands it is confidently claimed they were not intended to be embraced in the assessment. From all the light obtainable the Legislature has determined the limits of the taxing district. In the preamble to the act the purpose is expressed, to establish a comprehensive system “to protect the entire district from destructive floods,” and to confer authority to levy assessments on the lands to be protected. In the body of the act the board, besides the tax provided by the Constitution, is directed to levy assessments on all property within the district subject to taxation for levee and drainage purposes. Throughout the preamble and act it is the entire district that is made the subject of these assessments, the only exception being implied in the provision that on the application of the Police Juries lands may be excluded, reported by the engineers incapable of protection. Act No. 79, Sec. 15. On this branch of the case the conclusion seems to us inevitable that all lands in the district were intended to be and are embraced, save that reported as proper to be withdrawn by the engineers. So far then as the plaintiff’s argument rests on the question of intention it is our opinion the lands of plaintiffs were unquestionably intended to be embraced in the scope of the act.

But it is contended on behalf of plaintiffs that this acreage assessment is arbitrary and indefensible, because levied on every acre in the district without reference to value. Thus the cleared lands of much greater value are taxed no higher than swamp lands assessed at only fifty cents, and it is claimed not susceptible of sale at that price. An additional inequality arises, it is contended, from assessing lands susceptible of protection from levees no higher than the lands claimed to be incapable of receiving such protection. There has been much diversity as to the best method of imposing local assessments', so as to obtain as far as possible equality, for all understand perfect equality of taxation is unattainable. If the Legislature were to classify the property for assessment on the theory that some property, by reason of its situation, would derive more benefit from the proposed improvement than other property, it is quite likely that injustice would still be done. Assessments for a local improvement higher on property supposed to be specially benefited than on other property in the same district would probably be quite as distasteful as any other mode of taxation, certainly to those called on to pay the higher tax.

The legislative judgment in this system of classified assessments that A should pay a greater assessment than B on property they own in the district of the proposed improvement might be acceptable to B, but not to A, and it is not at all unlikely inequalities would exist in any such mode of adjusting assessments. In our sister State of Mississippi these assessments for levees are adjusted in proportion to the distance of the land from the river. This is urged on us as-equitable. Yet it might be deemed arbitrary that land twenty miles from the river, and, perhaps, safe by reason of its peculiar situation from any overflow, should pay the same tax as land within ten miles of the river, inevitably to be submerged in seasons of high water. Defects in our opinion may well exist in any system of assessment, and all that can be exacted is approximate eqality. We think acreage taxation meets this, requirement. It proceeds on the theory that it costs as much to drain one acre as another. The same levee and drainage work required to protect lands on or near the river suffices to protect the low lands in the rear. If there is error in this theory it arises from the fact that the expense is greater because the lands in the rear require more leveeing and drainage work than the front lands. But the acreage system of assessment calls on all the lands to pay only its proportion of the expense of the local improvement. The system supposes that if the front lands are benefited five cents per acre, that the low lands in the rear, though less valuable, are benefited five cents an acre, the proportion to each acre of the expense incurred. The acreage system of assessment is, after all, in our judgment, as equitable as any, and has been sanctioned in our past legislation and sustained by our courts. See Wallace vs. Shelton, 14 An. 498; the Drainage Cases, 11 An. 338, and by implication, if not expressly, in our decisions already cited under this levee legislation.

There remains the contention that plaintiffs' lands can not be-benefited by levees or drainage, and hence can not be made subject to assessments, resting solely on the theory that the lands will be improved by the levees and drainage proposed. It is a legislative-question to determine the property on which assessments are to be placed for local improvements, or in ocher words, to determine the property within the scope of the improvement and to be taxed for the expense. Cooley on Taxation, Chap. 20, pp. 428, 429. The wisdom of the Legislature in selecting the objects of taxation, it has been well stated on more than one occasion, is not a question for courts* Of course, if taxation, so called, infringes on any limitation of the organic law, lower courts can grant relief. But, subject to this judicial control to protect the constitutional right of the citizen, the power of taxation is absolute in the legislative department. Bordelon vs. Lewis, 8 An. 472; Layton vs. New Orleans, 12 An. 517; Municipality vs. Duncan, 2 An. 186; Planters’ Co. vs. Tax Collector, 39 An. 462; Minor vs. Daspit, 43 An. 337. We have in the legislation called in question here the judgment of the legislative department of the advantage and practicability of a scheme of levee and drainage to protect from inundation the district created by the act, and the legislative directions that taxes shall be imposed on the lands within that district. We are asked to determine the Legislature was entirely wrong in its judgment in including plaintiffs’ lands within the scope of the proposed improvement and the assessments to be imposed. We have in these acts the exhibition of a system of levees accompanied with a scheme of drainage proposing the great benefit of reclaiming our alluvial lands. Of course large expense is to be incurred, hence the taxation and assessment. There is the scientific judgment on behalf of the board that this result can be achieved. Even the testimony of the defendants seems to concede this, but attended with an expense, in their opinion, greater than the value of the lands. Is this court, on the strength of that opinion, to determine, in opposition to the legislative judgment, that the alluvial lands of the State in the situation of those of plaintiff must forever remain in their present condition of overflow? We must take notice that the alluvial lands of the State once subject to overflow have been, in great part, reclaimed by the methods proposed by this.legislation. Our appreciation of the legislation and of the testimony with reference to this subject brings us to the conclusion there is no basis to hold these lands can not be reclaimed, and thus substitute the judgment of this court for that of the legislative department, far better qualified to determine the question of benefit involved.

It is therefore ordered, adjudged and decreed that the judgment of the lower court in the following entitled consolidated cases:

John Hill et al. vs. T. S. Fontenot, Sheriff, etc.

A. L. Abbott vs. Same.

Alma Aiken vs. Same.

Alfred Slidell et al. vs. Same.

Levy Duson et al. vs. Same.

J. Meyers & Oo. vs. Same.

L. Godchaux et al. vs. Same.

L. Godchaux vs. Same.

Vincent Boagni vs. Same.

J. E. Vannoy vs. Same.

Boagni & Levy vs. Same.

Eliza Dixon vs. Same.

Clementine Phelps vs. Same.

W. O. Scott vs. Same.

Boagni & Levy vs. Same.

Be affirmed at the costs of the appellants.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 11,520.
    Louis Mathis vs. The Board of Assessors et als.
    The land between tbe levee and the river, though submerged at the high stage of the river, is the property of the riparian proprietor, subject to public uses. Civil Code, Arts. 455, 457; 10 La. 19; 11 La. 170; 8 Hob. 211.
    Such land, if used by the riparian owner or from which he derives a revenue, is subject to taxation.
    APPEAL from the Second Oity Oourt of New Orleans. Morel, J.

      Louque & Pomes for Plaintiff, Appellant.

      E. A. O’Sullivan, Oity Attorney, and Horace L. Dufour, Assistant City Attorney, for Defendants, Appellees.
   The opinion of the court was delivered by

Miller, J.

The plaintiff sues to cancel an assessment against him of land between the levee and the river in front of his property. He claims the land is not liable to assessment. The judgment of the lower court maintained the assessment and plaintiff appeals.

The character of such land is defined by the Code. The levee is deemed the bank of the river, and is that which contains the water at the ordinary high stage of the river. The ownership of the banks is in those who possess the adjacent land, but subject to public uses. Civil Code, Arts. 455, 457.

We have had some difficulty in reaching a conclusion in this case. We are not dealing with the general proposition as to the taxability of batture. It is in evidence here that the riparian proprietor, the plaintiff, placed a fence around the land. It is true the amount derived was inconsiderable, but still the fact is in the record that the riparian owner leased the property and received rent from tenani s. Our courts have affirmed leases of batture by riparian proprietors. We are not at liberty to hold that land, although between the levee and the river, is not subject to taxation when used by the front proprietor for the purposes of revenue or otherwise. The ownership of such land, in a certain sense, is recognized by the Code, and in this case the rights, of private ownership have been asserted by plaintiff. Under such circumstances we think the land is subject to taxation. See Chase vs. Turner, 10 La. 19; Nicholls et al. vs. Byrne, 11 La., 170; Dennistoun et al. vs. Walton, 8 Robinson, 211.

We think therefore the plea of res judicata based on the judgment of the Oivil District Court, holding the land not subject to taxation, can not prevail.

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

Rehearing refused.


text:
    No. 11,662.
    Mary E. Gladdish et al. vs. Leon Godchaux.
    On tile issue oí ownership defendant, relying on titles which, it is claimed, inadvertently omit one of the lots of tile plantation, the subject of the sales, the error may he alleged in an amendment to the general issue contained in the original answer, the amendment not changing the issue. Code of Practice, Arts. 419, 420; 2 Hennen’s Digest, 1183, No. 9; Payne vs. Railroad, 38 An. 164.
    Parol is admissible to show that the undivided half of one of the lots, part of a plantation, was omitted by error, in a sheriff’s deed. The proof of the alleged error must be clear; and in this ease is deemed to be furnished in the act of mortgage under wliieh the order of sale was obtained, describing the plantation by name, enumerating the lot in dispute as part of it; the order of sale directing the sale of the mortgaged property and all other property of the de-' ceased mortgagee, and the adjudication presumably following that order, this evidence being supplemented by the closing of the succession of the deceased and the conduct of the parties manifesting, in the view of the court, their appreciation the sheriff’s sale carried the property in dispute, all leading to the conclusion the omission in the sheriff’s deed of the lot in dispute was an inadvertence. 1 Story’s Equity Jurisprudence, Sec. 153; 15 La. Rep. 311; 9 An. 29;. 35 An. 560; 37 An. 203; 44 An. 352.
    A PPEAL from the Eighteenth District Court, Parish of Lafourche. Caillouet, J.

      Beattie & Beattie for Plaintiffs, Appellees.

      Lazarus, Moore & Luee and Clay Knobloeh & Son for Defendant, Appellant.
   The opinion of the court was delivered by

Miller, J.

The plaintiffs, the widow and heirs of James Billiu, seek to recover from defendant certain property in the parish of Lafourche, known as lot No. 16, on the left bank descending of the Bayou Lafourche, about sixteen miles below Thibodaux. They trace title to one undivided half as derived from their father, and aver title from Clara S. Perkins to the other undivided half.

The defendant, Godchaux, answered, pleading the general issue, prescription, and set up title from Meyer aud Joseph Weill of date October 25, 1892; by a supplemental answer, defendant alleged that lot No. 16, claimed in the suit, formed part of Utopia plantation; that the title thereto of James Billiu and Mrs. Perkins, under whom plaintiffs’ claim was divested years before by sales to Marion W. Billiu, under whom defendants claim by various conveyances ; that in these conveyances, all conveying the Utopia plantation, lot No. 16 was omitted in error, but was intended to pass and was conveyed, the description being the “Utopia” plantation, known to embrace No. 16; the estoppel is pleaded, claiming to arise from the fact that the lot was inventoried when James Billiu died as part of “Utopia,” and hence plaintiffs, his widow and heirs, can not now dispute the lot was such part; the answer'prays for judgment against plaintiffs; for the maintenance of the prescription and estoppel pleaded, and that in the event the court should hold the description in the acts do not suffice in terms to convey the property in dispute, that the description be reformed so as to make that conveyance accord with the intentions of the parties.

From the judgment of the lower court in favor of plaintiffs, defendant takes this appeal.

In 1855 James Billiu acquired the plantation, of which the lot No. 16 was part. The description was a front tract of four and a half arpents by forty arpents, and a back tract made up of lots 17, 26, 27, 28, 16, 18 and 19. The lot 16 here enumerated is that in dispute. Subsequently Billiu conveyed one-half the plantation to J. S. Perkins, and then begun, as we gather from the record, a planting partnership between the joint owners. In 1860 Billiu and Perkins mortgaged the property to their factor, West, Renshaw & Oammack, for sixty-five thousand dollars, the name given to the property in the mortgage act being the “Utopia,” and the description embraced lot 16 as part of it. Later, the wife of Perkins died; the one-half of the plantation acquired by her husband, treated as part of the community, was sold to settle her succession, and by the adjudicatee conveyed to Clara L. Blanchard, the second wife of J. S. Perkins. James Billiu died in 1865. His property, including the one-half of Utopia, was inventoried, the description naming lot 16 as part of it, and was ordered to be sold, the Oanal Bank, holder of the mortgage note of 1860, provoking that sale to pay the mortgage debt. At that sale, made in 1875, Marion W. Billiu, one of the sons of James Billiu, became the purchaser; but in the sheriff’s deed the ‘•Utopia” is stated to be composed of lots 17, 18, 19, 26, 27, and 28, lot No. 16, the one-half of which, and the other lot, though ordered to be sold, not being mentioned in the deed. In 1882 Mrs. Perkins conveyed to Marion W. Billiu the undivided half of the “Utopia;” but, in enumerating the lots, No. 16 was not named. This-contention arises out of the sheriff’s deed and the sale of Mrs. Perkins. The half of the Utopia of Marion W. Billiu was sold under the same description contained in the sheriff’s deed; his vendor re-conveys, reserving the usual mortgage; under the foreclosure of that mortgage the property is purchased by Weill, the author of defendant’s title; then Weill sells, purchases again under the foreclosure of his mortgage, and finally, in 1892, Weill sells to defendant. In all these sales, beginning with the sheriff’s deed in 1875, the property is designated as the Utopia; but No. 16, though always from an early period forming part of it, is not mentioned. The defendant claims it passed by manifest intention and necessary implication.

This intention, it is claimed, is manifest from other facts disclosed by the record. The purchase of Marion W. Billiu at the succession sale of his father’s property was in the interest of his mother and his co-heirs, as shown by his counter letter. The purchase by him from Mrs. Perkins was in the same interest. The counter letter is followed by the sale of the family to him of the one-half purchased at the succession sale. Thus placed in his father’s position in reference to the partnership property, the partnership begun in his father’s lifetime continued between him, representing his family, and Mrs. Perkins. In January, 1882, there is on the record a sale of the one-half of the Utopia from Marion W. Billiu to Cammack, from Cammack back to Billiu of the property. On the same day the conveyance is executed from Mrs. Perkins to Billiu of one-half of her interest in the Utopia plantation, and a conveyance from Billiu to Mrs. Perkins of the half of the Mary plantation, part of the partnership property, the interest of his father in the Mary having been acquired by Marion Billiu along with the interest of his father in the Utopia. Dealing with a complicated record, in which scant admissions are substituted for the acts, we may not be entirely accurate as to the details of this labyrinth of conveyances, but we appreciate the general tenor of the acts and understand the significance attributed to them as denoting a settlement of this planting partnership. That this settle - ment was proposed is also disclosed by oral testimony produced by defendant. On the strength of all this, the conclusion is deduced in the argument for defendant that this settlement being intended, Billiu conveying to Mrs. Perkins all his interest in the Mary, one part of the partnership property, we are to read into her conveyance of the interest she had in the Utopia, also part of the partnership, property, lot No. 16, though not mentioned in the act. On this theory rests the defendant’s contention, that already divested by her conveyance of 1882 of her one-half in the Utopia, her subsequent sale in 1892, under which plaintiffs claim, passed nothing.

The plaintiffs objected to all parol for the purpose of showing that any interest in lot No. 16 not mentioned in the deeds was intended to be conveyed. The alleged error of the acts in not mentioning this lot was introduced in the supplemental answer. If we are to understand the filing of this supplemental answer is disputed, we, dispose of that objection. Error must be specially pleaded. The allegation might have accompanied the other defences on the original answer. Not changing the issue of the ownership of lot 16, but simply amplifying the title relied on by defendant, we think defendant was entitled to the amendment. Code of Practice, Arts. 419, 420; 2 Hennen’s Digest, 1182, No. 9; Payne vs. Railroad, 38 An. 164.

Nor have we any doubt under an allegation of error an omission in an act may be supplied. The power to reform and correct acts so as to make them conform to the real intentions of parties, when, through inadvertence or accident, the purpose is not expressed, is of frequent exercise in courts of equity, and our courts administer the same relief. Of course, the proof of error must be clear. Nor do we appreciate that this relief can not be afforded defendant because the alleged error occurred in the written acts prior to his own title. The plaintiffs claim in part as heirs of James Billiu. If, in our opinion, his title was divested by the sheriff’s sale of 1875, any testimony tending to show that divestiture and the error in the sheriff’s deed is admissible against his heirs. The plaintiffs claiming the other half as the assignees of Mrs. Perkins are bound, by any testimony that would bind her, to show that she had conveyed lot No. 16. See 1 Story’s Equity Jurisprudence, par. 152; Palangue vs. Guesnon, 15 La. 311; Robert vs. Boulet, 9 An. 29; Bryan vs. Wisner, 44 An. 832; Vignie vs. Brady, 35 An. 560; Vial vs. Moll et al., 37 An. 203.

On the question of the divestiture of the title of James Billiu, we have the succession sale of all his property, including his one-half lot No. 16, then forming part of the Utopia plantation, inventoried, and ordered to be sold. There is the act of mortgage of 1860 of the Utopia, enumerating specially this lot No. 16, under which mortgage the sale was made. It was the Utopia plantation by name and under that order of sale that Marion W. Billiu became the adjudicatee. It is to our minds clear that he became the owner of the undivided half of lot No. 16 by this adjudication. If he had stood before the court in 1875 exhibiting the inventory, the act of mortgage of 1860, the order of sale of the property embraced in that inventory and the mortgage and the proees verbal of the sale of the Utopia, the court would have promptly corrected the manifest error in not enumerating lot No. 16 as part of the Utopia. There is, too, on this branch of the case the record that the succession of James Billiu was closed, the debts paid as far as the property would suffice, with the petition from the executors importing to our minds the significance that all the property of his succession had been disposed of in course of administration. The heirs of Billiu appear to have acted on the theory that nothing remained of the succession property. It was not until 1892, some years after the close of the estate, that the form of the sheriff’s deed suggested this suit. In our opinion the title of their ancestor was divested. That is enough to dispose of their case. They are without interest to question whether the subsequent conveyances of the Utopia plantation, by which the property had been known for years, did not convey lot No. 16 as part of it. We think it did. Levy vs. Ward, 33 An. 1033; Dickson vs. Dickson, 36 An. 870; Bryan vs. Wisner, 44 An. 832.

As to the undivided half of Mrs. Perkins, claimed by plaintiffs, as, her assignees, the case, in our view, is different. She remained indis-i putably the owner of her one-half at and before the succession sale of James Billiu. Her conveyance to Billiu is in 1882. It mentions the Utopia plantation, but omits lot No. 16 in enumerating the lots. On the face of that conveyance she remained owner of one-half of lot No. 16. How can we assume that she intended to convey her interest in that lot. The defendant undertook to show her intention id that respect. It is contended the various acts of January, 1882, was a settlement of the partnership denoting her purpose to convey all her interest in all land ever belonging to the Utopia, and necessarily including her part of No. 16. But her conveyance omits No. 16. The parol proof administere 1, her own and the testimony of John W. B:lliu, fail, in our view, to show any intention other than that we can deduce from the acts. She testifies in effect she committed everything pertaining to that settlement to her husband, and has no knowledge on the subject. Her husband was dead. John S. Billiu adds nothing of benefit to defendant. What he does say of any pertinence makes, in our view, against defendant. No reference, he says, was made to No. 16 in that settlement. No change in boundaries occurred, he testifies, till 1882, rather implying that her part of No. 16 was then reserved to her. At best, the defendant has made it probable she intended to convey her interest in that lot. But the written title, omitting that lot, must stand unless the error is establis'.ed. We can not overthrow the title to real estate on any theory of probable intentino. In respect to the Billiu one-half we have the act of mortgage enumerating No. 16 as mortgaged, the order of sale directing the sale of the property. There is the presumption the sheriff followed the order. The conclusion on this basis alone is that not naming No. 16 in his deed is a mere inadvertence. We have other evidence besides to show that error. No such or any basis is, in our view, supplied as to the Perkins one-half.

There is no issue in this case as to rents and revenues reserved, we presume, for further proceedings.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed in so far as it decrees the plaintiff to be the owner of lot sixteen, claimed in plaintiff’s petition, and it is now adjudged and decreed that plaintiff, Mary E. Gladdish, be decreed to be the owner of one undivided half of said lot; the issue as to rents and revenues is reserved, costs of the lower court to be paid by defendant, those on the appeal by plaintiff.


author: Niqholls, C. J.

text:
    No. 11,285.
    A. Clason & Co. vs. The City of New Orleans.
    Moneys standing to the credit of a non-resident firm on the books of a New Orleans bank are not taxable. The relations between a bank and its customers are those of creditor and debtor. The moneys are not specially deposited to be identically restored. They go into the mass of the bank’s money with the understanding that they might be used and should be the basis of items of a debit and credit account. Such a debt is not distinguishable from those due to the foreign firm from any other cause.
    APPEAL from the Oivil District Court for the Parish of Orleans. J.

      H. Heidenhain for Plaintiff and Appellee.

      E. A. O’Sullivan, City Attorney, and Henry Renshaw, Assistant City Attorney, for Defendant and Appellant.
   The opinion of the court was delivered by

Niqholls, C. J.

Plaintiffs allege themselves to be a firm domiciled in the city of Manchester, England, and doing business in the city of New Orleans. They aver that on October 14, 1892, through their representative in that city, Ernest Overbeck, they were served with a notice of threatened seizure (which they annexed to their petition) by the treasurer of New Orleans, calling upon them for the payment of a city tax of 1892 amounting to $400, besides interest and costs, based upon an alleged assessment on the sum of $20,000 on money at interest and cash.

They allege that during the year 1892 they had no money at interest or cash in the city of New Orleans, and therefore said assessment is absolutely null and void.

That in pursuance of said notice the said treasurer had placed a keeper at their office, and claimed to have seized other property of theirs not assessed, all of which proceedings are null and void, arbitrary and unwarranted.

That if they owe any tax to the city of New Orleans, which is denied, then the proceedings of the treasurer are premature, because they have until the 1st of November to bring a direct action to cancel or reduce said assessment.

That they have taken all necessary legal steps to have said assessment canceled without success.

That they fear that, unless restrained, the treasurer would persist in his efforts to collect said illegal tax by the seizure and sale of property of theirs not liable therefor, and otherwise harass them to their great detriment and injury.

They prayed for an injunction restraining the city of New Orleans from attempting to collect the said tax by the seizure and sale of their property — for citation upon the city and for a judgment in their favor perpetuating the injunction and annulling the assessment.

The injunction asked for was granted.

The notice referred to in the petition is as follows:

“ Nbw Orleans, .October 14, 1892.

To A. Olason & Go., No. 45 Union Street:

‘‘ By authority of the laws of the State of Louisiana and ordinances of the city of New Orleans demand is hereby made on you for the payment of city taxes for the year 1892, as per assessment for said year on money at interest, cash, etc. Amount of assessment, $20,000.

Amount of tax at 2.02..................................................................................$404 00
10 per cent, interest from June 23, 1892................................................... 12 58
Advertising............................................................................................ 10
Notices.......................................................................................................... 10
Keepers at $1.50 per day, 1 day (10-14)...................................................... 1 50
Total....................................................................................................$418 28

“ In default whereof your property will be seized and sold, according to law.

(Signed) : “Charles H. Schenck,

Treasurer of the City of NeiO Orleans.”

The city, reserving the benefit of any and all exceptions to which it might be entitled, filed an answer denying all and singular the allegations of plaintiffs’ petition, and excepting that the State tax collector had not been made a party to the suit. It prayed that it be dismissed, with judgment in its favor.

No action seems to have been taken upon this exception. On trial of the ease judgment was rendered in favor of the plaintiff and against the city of New Orleans, perpetuating the injunction issued and restraining the city from attempting to collect the tax claimed by it. Defendant has appealed.

During the trial a copy from the assessment rolls of the assessment against A. Olason & Co. was filed. It is as follows:

“Sq. No. 228, Union, Gravier, Oarondelet and Baronne streets; Arthur Olason & Co., cotton buyers.

“ Money loaned on interest, all credits and all bills receivable for money loaned, and all credits of any and every description, $10,000.

“ Money in possession, on deposit or in hand, $10,000.’’

Only one issue is presented to us for consideration, that of the liability of the plaintiffs to taxation on moneys standing to their credit in bank.

The plaintiff is a commercial firm having its domicil in Manchester, England. It has an office in New Orleans at which its sign is displayed, and it pays a license for the privilege of carrying on its business. Its business in this State is confined to making, through a clerk or agent stationed here, purchases of cotton for shipment to the house in Europe. Its operations are extensive, requiring an outlay varying from $900,000 to $1,200,000 per annum for itB cotton purchases, which average about 30,000 bales a year. The agent of the firm, in his testimony, says that .the money used to buy and pay for the cotton is raised through exchange. “When he gets an order to purchase he pays for it when shipped — he draws on the house in Manchester and gets the money from the bank. He delivers a bill of lading, and against that bill he draws a¡ bill of exchange, which he deposits in bank and draws a check to pay for the cotton. He sells the exchange to the bank (sometimes to parties other than the bank), which gives him a check for the exchange. This he deposits in bank and the firm is given a credit for the amount against which he checks.” In answer to questions propounded to him, he said that “occasionally, on rare occasions, he drew clear drafts; that for such purposes there was an open credit which would cover the drafts. He would give the bank the draft; there was no discount; he would sell the draft and deposit the proceeds to credit in bank.”

The question submitted to us is whether these amounts standing in bank to the credit of the plaintiffs are subject to taxation.

In Insurance Co. vs. Board of Assessors, 44 An. 762, we held that the fact that foreign corporations did business in this State through a local board of directors made up of residents of New Orleans did not localize the company itself to a greater extent than if the business were conducted by an agency not organized into a board, and that whether represented by a board of their selection or by agents, they remain foreign companies, and in so far as relates to residence the same rule applies.

We also held that debts due to a non-resident of a State are not liable to be taxed by a State in-which he did not reside. That his credits are not within the State’s jurisdiction. These views were reaffirmed in the case of Railey vs. the Board of Assessors, 44 An. 765.

In the first case mentioned, referring to the second item on the assessment, which figured as “ money in possession,” we said the evidence showed that the company was correctly assessed; that it was property within the State and subject to taxation; that it was visible and tangible, and expressly made taxable by statute, and is taxable where situated; that the authorities which maintained that debts could not be assessed against non-residents had established the rule that non-residents owning tangible and movable property within the State might be taxed. This ruling was based upon an admission by the plaintiff company that it had an amount of $10,000 money in cash in the city of New Orleans (44 An. 762).

Under, the principles enunciated in those cases the fact that the plaintiff has a resident clerk acting for it in the city of New Orleans, and that it has an office, and pays a license there, is unimportant. For the purpose of a determination of the issue involved herein we have to deal with the the plaintiffs as non-residents, and in so dealing %oith them we are of the opinion that the judgment of the lower court is correct. We can not distinguish between the debt due to the plaintiffs by a bank as arising from a deposit to the credit of the firm in money and that due 'to it from any other cause.

The relations between the plaintiff and defendant are those of creditor and debtor. The moneys were not specially deposited and to be identically restored. They went into the mass of the bank’s money with the understanding that they might be used and should be the basis of items in a debit and credit account. Sims vs. Bean, 10 An. 347; Mathews, Finley & Co. vs. Their Creditors, 10 An. 344.

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


author: Nicholls, O. J.

text:
    No. 11,410.
    State of Louisiana vs. Simon Johnson.
    The finding by the jury of the guilt of an accused must be direct and positive.
    The court is not justified to “ reason ” to an inferred verdict of guilty. A verdict consisting of the simple word “manslaughter” written on the indictment, not prefixed by the words “guilty of,” is fatally defective, and it is not cured by a polling of the jury when “Is ‘manslaughter’ your verdict?” was the only question asked of its members.
    APPEAL from the Eighteenth District Court, Parish of Terrebonne. Caillouet, J.

      M. J. Cunningham, Attorney-General, and B. F. Winchester, District Attorney, for the State, Appellant.

      L. F. Buthon for Defendant and Appellee.
   The opinion of the court was delivered by

Nicholls, O. J.

The accused was indicted for the murder of one Rose Bolden. The case was taken up for trial and evidence heard, and in the minutes of November 20, 1893, we find the following entry: “After mature consultation and deliberation the jury returned into open court in presence of the accused, Simon Johnson, and then and there were called by the clerk of the court, when each juror answered to his name, and on Being further asked by said officer if they had agreed upon a verdict they answered in the affirmative, and through Edgar J. Richard, their foreman, selected among themselves, presented to the court the following verdict:

“‘Manslaughter. (Signed) E. J. Richard, Foreman.''

“ The said verdict was then read to the jury. On being asked by the clerk of the court whether such was their verdict the said jury answered that it was, whereupon on motion of counsel for accused the court ordered that the jury be polled, when each juror on being asked by the clerk of the court if ‘ manslaughter ’ was his verdict answered in the affirmative. Whereupon the court ordered said verdict recorded, the accused remanded and the jury discharged in this case — all in presence of the accused.”

The accused moved in arrest of judgment on the ground that “the verdict of the jury rendered in the cause is meaningless and fatally defective, and is as much a verdict of acquittal as of conviction.”

The district judge sustained this motion and ordered the accused to be remanded to await further proceedings under the indictment. The State has appealed.

The defendant in his brief contends that ‘ ‘ in legal contemplation a verdict is a judgment — it must decide something — it must declare the guilt or the innocence of the accused; it must pass upon the issue presented. The simple word ‘ manslaughter ’ surely decides nothing — it is the name of a crime only. The court can supply nothing to make a judgment out of this verdict — the jury alone could do that and it has passed away.”

We are of the opinion that the verdict is fatally imperfect and defective — it does not pass upon the guilt or innocence of the accused, and however clear we may be as to the idea which the jury intended to convey, we can not reach a judgment in a criminal case purely by intendment, as we would have here to do.

In some States and for some offences the jury not only determines the guilt or innocence of the accused, but assesses the punishment, and in such cases it has been held that the verdict must find the defendant guilty, then add the punishment — that the latter without the former would be inadequate.

These decisions must obviously rest upon the principle that the court is not authorized or justified to “ reason ” to an inferred verdict of guilty against the accused (see Bishop on Oriminal Procedure, Third Edition, Sec. 1012 and notes thereunder).

The finding of the jury of the guilt of the prisoner must be direct and positive.

The State claims that “the polling of the jury had the effect of curing the imperfections of the verdict,” and State vs. Smith, 38 An. 1416, and State vs. Ross, 32 An. 855, are relied upon in support of this contention, but an examination of the manner in which in this case the jury was polled, will show that the situation was not varied or altered for the better by that fact.

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


author: Watkins, J.

text:
    No. 11,357.
    State ex rel. Board of Liquidation vs. John Pickett, State Treasurer.
    1. Act 8 of 1874; Act 58 of 1877, regular session, and Act 77 of 1877, extra session, were not repealed by the adoption of tbe Constitution of 1879, and the Debt Ordinance thereto appended'.
    2. The constitutional amendment of 1874 embodies the purport and substance of the legislative enactment of that year, and declares that the tax required for the payment of the principal and interest of the bonds shali be assessed and collected every year, until the bonds shall be paid, principal and interest; and the debt ordinance declares that there shall be levied an annual tax sufficient for the full payment of the interest on the bonds.
    8. There is no essential difference in the phraseology of the two constitutional enactments.
    4. The legislative enactments of 1877 provide that any surplus that may remain after the payment of interest coupons shall be deposited with the fiscal agent at credit of a specific and distinct fund, to be called and known as the Redemption of the Public Debt Fund, and shall be used exclusively, under directions of the board of liquidation, for the retirement and sinking of the consolidated bonds and past due coupons.
    5. The act of 1877, extra session, makes it the duty of the treasurer to keep separate accounts of the income and expenditures of each year; and, after setting apart or paying out an amount thereof equal to the appropriations and warrants lawfully made against each of said funds, the surplus, if any remain, shall be immediately deposited by the treasurer at the credit of the Redemption of the Public Debt Fund.

      3. The debt ordinance deals exclusively with the interest and not the principal of the bonds, leaving the latter in statu quo; and the fact that the bondholders were given an option to surrender their holdings and recover other bonds in exchange, on the terms proposed therein, did not impair their force or validity.
    7. All statutes enacted since the adoption of the debt ordinance of 1879 must be construed in conformity therewith.
    In point of fact all subsequent statutes deal with an existing fund — an interest tax surplus — already collected under existing laws, and, at most, same could only lead to the supposition that the laws of 1871 and 1877 were not operative; and had it been intended by the Legislature to repeal any of said laws, same would have been nugatory and void.
    PPEAL from the Civil District Court, Parish of Orleans. . Bilis, J.

      M. J. Cunningham', Attorney General, for the Relator and Appellee.
    Respondent in propria persona.

   The opinion of the court was delivered by

Watkins, J.

The Board of Liquidation represents that from the funds set aside from year to year — that is to say, from 1880 to 1882 —to pay the interest on the consolidated bonds of the State, there has accumulated a surplus in said interest fund exceeding $400,000. That, under the provisions of Act 8 of 1874 and Act 58 of 1877, it is the duty of the Board of Liquidation to have such surplus invested in bonds and coupons attached, by purchasing same at public auction from the lowest bidder, after due advertisement, and under the conditions and with the restrictions imposed by law.

The further averment of the board is that said surplus interest fund has been segregated from the funds and revenues of the State, and dedicated and consécrated to the bonded debt, and duly and legally appropriated to be employed by said board for the purpose of buying bonds and coupons, as aforesaid.

That said board has passed a resolution directing advertisements for bids, as it was its plain duty to do.

That, under the act of 1877, and other laws of the State, it is the plain ministerial duty of the State treasurer to pay for all bonds so redeemed and retired or bought under the direction of the board on the order of the board; but that, notwithstanding his said duty, said treasurer has refused to pay and declared that he will not pay for said bonds, upon the order of the board or on the warrant of the auditor; and said board believes it would be a vain and useless thing to advertise for bids in the face of such declaration and refusal, and hence a mandamus is necessary to compel the performance of duty on the part of the treasurer.

The prayer of the board is that the treasurer be ordered to pay for any bonds that may be bought under its direction, as provided by law, or show cause to the contrary.

The following is the return of the treasurer — or at least the substance of same, as exhibited by printed extracts we have selected from his brief, to-wit:

“ Now comes respondent, and for answer and cause why the mandamus herein sued out should not be made peremptory, and why he should not pay for bonds as demanded, shows as follows:

“ That an investment of the kind proposed could not legally be made by the Board of Liquidation, and the necessary funds therefor disbursed by respondent for the following reasons:

“ That while the Constitution of 1879 does not curtail or abolish the duties of the Board of Liquidation, so far as they relate to the issuance of consolidated bonds, it has revoked and withdrawn from the auditor and treasurer all of the powers conferred by Act No. 3 of 1874. That continuing appropriations for interest and redemption of bonds made by the act of 1874, and supplementary acts of 1877 (Act No. 58, regular session, and Act No. 77, extra session), were inconsistent with Art. 43 of the new Constitution, which prohibits money from being taken out of the State treasury except in pursuance of a specific appropriation, and the Legislature from making an appropriation for a greater length of time than two years.”

* * * * * *

He refers to State ex rel. E. Gross vs. Auditor, 35 An. 537, and St. Cyr vs. Auditor, unreported, as adjudications of this court sanctioning his view. Also Hart vs. Burke, 33 An. 458, to the same purport.

He also cites Elliott vs. Jumel, 107 U. S. 711, for the purpose of demonstrating the correctness of his view to the effect that the State had, through the instrumentality of the Debt Ordinance of 1879, withdrawn from its officers the powers conferred by the constitutional amendment of 1874.

The extract from that opinion which is relied upon is the following, viz.: •

The Supreme Court of the United States said: “It is equally manifest that the object of the State in adopting the debt ordinance of 1879 was to stop the further levy of the promised tax, and to prevent the disbursing officers from using the revenue from previous levies to pay interest falling due in January, 1880, as well as the principal and interest maturing thereafter,” and “that the Constitution of 1879, on its face, takes away the power of the executive officers to comply with the act of 1874 can not be denied. As against everything but the outstanding bonds and coupons, this Constitution is the fundamental law of the State, and it is only invalid so far as it impairs the obligation of the contract on the faith of which the bonds and coupons were taken by their respective holders.”

The respondent then summarizes tbe legislation of the State since the adoption of the Constitution and Debt Ordinance of 1879, for the purpose of showing contemporaneous legislative construction of their provisions favorable to his theory, as follows:

“The new Constitution limits taxation to six (6) mills and makes no provision for a sinking fund, and the Legislature has failed to do so, either by an appropriation or reservation of surplus or other money.

“ That in Act No. 75 of 1882, and Section 89 of Act No. 85 of 1888, transferring all surplus interest money to the general fund, we have legislative constructions of the Debt Ordinance. The Legislature has declared all funds continuing funds, and made it the duty of the Treasurer to transfer surplus interest money to the general fund of the same year without waiting for legislative action.

“ That Act No. 75 of 1882 transferred the surplus interest fund for the years 1880,1881, 1882,1883 and 1884, collected or collectible and appropriated to pay the interest on the consolidated and constitutional bonds of the State, to the general funds of said years.

“That Act No. 107 of 1884, in Section 5, page 139, provides that the surplus of the interest tax shall be applied to the general fund tax, and in Section 12 repeals all laws or parts of laws in conflict with said act.

“That Act No. 96 of 1886, Section 98, page 161, applies all surplus in excess of $480,000 to the general fund, and by Section 95 repealed all laws or parts of laws in conflict with said act.

“ That Act No. 85 of 1888, in the first paragraph of Section 89, applied to the general fund all the surplus of the interest tax fund, and in the same section makes it the duty of the State Treasurer, without legislative action, to make transfers of any and all balances after providing for the payment of all warrants drawn against the several funds, to the credit of the same funds for the succeeding years, except as otherwise provided for, and by Section 92 repeals ‘ all those parts of laws on the subject of levy, assessment and collection of State taxes heretofore enacted which are in conflict with the Constition of the State, or are inconsistent with, or superseded by, or in conflict with the provisions of said act.’

“That the Acts No. 8 of 1874 and No. 58 of 1877 have been repealed by the Acts of 1882, 1884, 1886 and 1888, above quoted.

“That all surplus to the credit of any and all funds being under the provisions of said Acts of 1882, 1884, 1886 and 1888, transferred to the credit of the same funds for the ensuing years, except the surplus to the credit of the interest fund, which is specially transferred to the credit of the general fund, the same can now only be withdrawn from the treasury in pursuance of specific legislative appropriation.

* * * * * ^ *

“ Respondent further shows that the construction of Article 43 of the Constitution, which would prevent the proposed investment, is the same that has been adopted by the Treasurer since 1880, under the advice of the Attorney Generals, as will appear from the following extracts from opinions on file in this office: ‘ The prohibition in Article 43 of the Constitution against drawing money from the treasury except in pursuance of a specific appropriation made by law, applies to and covers all money in the treasury, whether deposited or paid in before or after the adoption of the Constitution of 1879. It is also an elementary and fundamental principle of free government, and even in the absence of a specific constitutional prohibition, money could not be drawn out of the treasury, directly or indirectly, without legislative authority.”

The treasurer then concludes his return as follows, viz.:

“That by no act of theirs, has the Legislature, or State officers or members of the Board of Liquidation, recognized the acts of 1874 and 1877, relating to a ‘redemption fund,’ as having been in force since the adoption of the Constitution of 1879, and no transfer made or even suggested to be made to the redemption of the public debt fund ’ for investment in bonds and coupons in the manner originally provided for in the acts of 1874 and 1877.

“While respondent admits that he favors the policy of retiring State bonds and past due coupons with the interest tax surplus, he respectfully submits to the court that for the reasons herein stated the Board of Liquidation has no authority to make the proposed purchase of bonds and coupons, and respondent no authority to make the necessary disbursement therefor.”

A close analysis of respondent’s return discloses the following to be his defences, viz.:

First — That the Constitution of 1879 has revoked and withdrawn from the auditor and the treasurer all the powers conferred by Act No. 3 of 1874.

Second — That the continuing appropriations for interest and the redemption of bonds provided by said act, and those supplementary thereto, were and are inconsistent with Art. 43 of the Constitution of 1879.

Third — That the Constitution of 1879 limits taxation to six (6) mills, and makes no provision for a sinking fund, and that no legislative enactment, since its adoption, has made any such provision.

Fourth — That, by various legislative acts since 1880, the surplus of the interest collected has been given an altogether different destination, inconsistent with the provisions of the acts of 1874 and 1877.

Fifth — That all the foregoing precepts of constitutional and statute law favor his theory, and are diametrically opposed to those advanced by the relator.

On the trial there was judgment in favor of the relator, and the respondent has appealed.

I.

It is important that the various provisions of the legislative enactments, and those of the Constitution of 1879, and the debt ordinances of 1879 and 1882, should be reproduced and collated for the purposes of comparison and careful analysis, as upon such comparison and analysis must depend a proper decision of the questions that are propounded in the respondent’s return.

We have, therefore, collated and reproduced them id thejorder of their dates, viz.:

Section 7 of Act 3 of 1874 — the funding law provides—

That a tax of five and a half mills on the dollar of the assessed value of all real and personal property in the State is hereby annually levied, and shall be collected for the purpose of paying the interest and [principal of the consolidated bonds herein authorized, and the revenue derived therefrom is hereby set apart and appropriated to that purpose, and no other. And that it shall be deemed a felony for the Biscal Agent or any officer of the State or board of liquidators to divert the said fund from its legitimate channel as provided, and upon conviction the said party shall be liable to imprisonment for not more than ten years nor less than two, at the discretion of the court. If there shall, during any year, be a surplus arising from said tax after paying all interest falling due in that year, such surplus shall be used for the purchase and retirement of bonds authorized by this act, said purchases to be made by said board of liquidation, from the lowest offers, after due notice; provided, that the total tax for interest and all other State purposes, except the support of public schools, shall never hereafter exceed twelve and a half mills on the dollar. The interest tax aforesaid shall he a continuing annual tax until the said consolidated bonds shall be paid or redeemed, principal and interest; and the said appropriation shall be a continuing annual appropriation during the same period, and this levy and appropriation shall authorize and make it the duty of the Auditor and Treasurer, and the said board, respectively, to collect said tax annually, and pay said interest and redeem the said bonds until the same shall be fully discharged.

This act was, at the same session of the Legislature, given the shape of a proposed constitutional amendment, and it was subsequently submitted to and adopted by the. people as a part of the organic law.

The issue of consolidated bonds authorized by the General Assembly of the State, at its regular session in the year 1874, is hereby declared to create a valid contract between the State and each and every holder of said bonds, which the State shall by no means and in no wise impair. The said bonds shall be a valid obligation of the State in favor of any holder thereof, and no court shall enjoin the payment of the principal or interest thereof, or the levy and collection of the tax therefor; to secure such levy, collection and payment, the judicial power shall be exercised when necessary. The tax required for the payment of the principal and interest of said bonds shall be assessed and collected each and every year until the bonds shall be paid, principal and interest, and the proceeds shall be paid by the Treasurer of the State to the holders of said bonds, as the principal and interest of'the same shall fall due, and no further legislation or appropriation shall be requisite for the said assessment and collection, and for such payment from the treasury.

Whenever the debt of the State shall have been reduced below twenty-five million dollars, the constitutional limit shall remain at the lowest point reached, beyond which the public debt shall not thereafter be increased; and this rule continue in operation until the debt is reduced to fifteen million dollars, beyond which it shall not be increased. Nor shall taxation for all State purposes, excepting the support of public schools, ever exceed twelve and a half mills on the dollar of the assessed valuation of the real and personal property in the State, except in case of war or invasion.

The revenue of each year derived from taxation upon real, personal and mixed property, or from licenses, shall be devoted solely to the expenses of the said year for which it shall be raised, excepting any surplus remain, which shall be directed to sinking the public debt. All appropriations and claims in excess of revenue shall be null and void, and the State shall in no manner provide for their payment.

In pursuance of the funding statute and the constitutional amendment of 1874, the Legislature of 1877 passed the following act, to-wit:

In addition to the duties already prescribed, it shall be the duty of the Treasurer to set apart annually out of the proceeds of the five and a half mills tax, an amount equal to the interest coupons maturing on the first day of July of said year and the first day of January next following, and the surplus, if any, remaining after said amounts shall have been collected and set aside, as well as the surplus, if any, resulting from the provisions of the third amendment to the Constitution of the State, proposed January twenty-fourth, eighteen hundred and seventy-four, and ratified at the general election held on the second of November, eighteen hundred and seventy-four, shall be deposited .with the Fiscal Agent at credit of a separate and distinct fund, to be called and known as the “Redemption of the Public Debt Fund,” and shall be used exclusively, under the direction of said Board of Liquidation, for the íetirement and sinking of consolidated bonds and past due interest coupon to be purchased from bidders offering the same at the lowest price, after thirty days’notice in the official journal of the State, and such other papers as may be selected by the board, which notice shall be given whenever said Redemption Fund shall amount to one hundred thousand dollars —Extract from Sec. 9, Act 58 of 1877, Regular Session.

That section two of said Act amending and re-enacting section nine of the original Act number three shall be and is hereby amended and re-enacted so that that portion of section nine as amended in said Act number fifty-eight beginning from the title “Treasurer” to and including the word “President,” preceding the word “Auditor,” shall read as follows, to-wit: “Treasurer— First: In addition to the duties already prescribed, it shall be the duty of the Treasurer to set apart annually, out of the proceeds of the five and a half mills tax, an amount equal to the interest coupons maturing on the first day of July of said year and the first day of January next following, and the surplus, if any, remaining after said amounts shall have been collected and set aside, as well as the surplus, if any, resulting from the provisions of third amendment of the Constitution of the State proposed January twenty-four, eighteen hundred and seventy-four, and ratified at the general election held on the second of November, eighteen hundred and seventy-four, shall be deposited with the Fiscal Agent at credit of a separate and distinct fund, to be called and known as the‘Redemption of the Public Debt Fund,’ and sutoli amount as may remain at credit of the said redemption fund after deducting therefrom the sum necessary to cover matured coupons remaining in arrear shall be used exclusively, under the direction of said Board of Liquidation, for the retirement and sinking of consolidated bonds to be purchased from bidders offering the same at the lowest price, after thirty days’ notice in the official journal of the State and such other papers as may be selected by the board, which notice shall be given whenever said redemption fund shall amount to one hundred thousand dollars. If any deficit occur in the collection of the five and a half mills interest tax of any year, leaving interest coupons of said year unpaid, then, and only then, that portion of tlie surplus revenue deposited in conformity to this Act at credit of the Redemption of the Public Debt Fund which may be derived from sources other than the said five and a half mills tax may be applied by the Board of Liquidation to the payment of such unpaid coupons with a view of maintaining the credit of che State. In conformity to the constitutional amendment number three, of one thousand eight hundred and seventy-four, it is hereby made the duty of the Treasurer to keep separate accounts of the income and expenditures of each fund in each year, and after setting apart or paying out an amount thereof equal to the appropriations and warrants lawfully made against each of said funds, the surplus, if any remain, shall be immediately deposited by the Treasurer at the credit of the * Redemption of the Public Debt Fund,’ and the Board of Liquidation is hereby authorized to require from the Treasurer or Fiscal Agent at any time a statement of the condition of any such fund or funds. No bid shall be entertained for any bond to an amount exceeding par; and the board shall always have reserved to itself the right and privilege of rejecting any and all bids, but shall publish in the official journal the result of its proceedings concerning such redemption or refusal to accept any of the bids made. If bids are offered in excess of the surplus on hand, they shall be reduced to correspond with such surplus, and the award be made in favor of the lowest bidder or bidders. For all bonds redeemed and retired in conformity to law payment shall be made by the State Treasurer on the order of the board, attested by its president and secretary.” — Sec. 1 of Act 77 of 1887, Fxtra Session.

The following is an exact reproduction of the Debt ordinance of 1879, viz.:

STATE DEBT.

Atixicle 1. Be it ordained by the people of the State of Louisiana, in Convention assembled, That the interest to be paid on the consolidated bonds of the State of Louisiana be and is hereby fixed at two per cent, per annum for five years from the first of January, 1880, three per cent, per annum for fifteen years, and four per cent, per annum thereafter, payable semi-annually; andthere shall be levied an annual tax sufficient for the full payment of said interest, not exceeding three mills, the limit of all State tax being hereby fixed at six mills; provided, the holders of consoli dated bonds may, at their option, demand in exchange for the bonds held by them, bonds of the denomination of five dollars, one hundred dollars, five hundred dollars, one thousand dollars, to be issued at the rate of seventy-five cents on the dollar of bonds held and to be surrendered by such holders, the said new issue to bear interest at the rate of four per cent, per annum, payable semi-annually.

Aut. 2. The holders of the consolidated bonds may at any time present their bonds to the Treasurer of the State, orto an agent to be appointed by the Governor —one in the city of New York and the other in the city of London — and the said Treasurer or agent, as the case may be, shall indorse or stamp thereon the words, * interest reduced to two per cent per annum for five years from January 1, 1880, three per cent, per annum for fifteen years and four per cent, per annum thereafter;” provided, the holder or holders of said bonds may apply to the Ti'easurer for an exchange of bonds, as provided in the preceding article.

Aux. 8. Be it further ordained, That the coupon of said consolidated bonds falling due the first of January, 1880, be and the same is hereby remitted, and any interest taxes collected to meet said coupon are hereby transferred to defray the expenses of the State government.

Be it further ordained, and it is hereby ordained by this Constitutional Convention, That the foregoing provisions and articles relative to the consolidated debt shall not form a part of this Üonstitution, except as hereinafter provided, as follows:

At the election held for the ratification or rejection of this Constitution, it shall be lawful for each voter to have written or printed on his ballot the words, “For ordinance relative to State debt,” or the words, “Against ordinance relative to State debt,” and in the event that amajority of the ballots so cast have indorsed on them, the words “3?or ordinance relative to State debt,” then the said foregoing provisions and articles of this ordinance shall form a partof the Constitution submitted if the same is ratified; and if a majority of the votes so cast shall have indorsed on them the words, “Against ordinance relative to State debt,” then said provisions and articles shall form no part of this Constitution.

The following is from the debt ordinance as amended in 1882, viz.:

ACT NO. 76 03? 1882.

STATE DEBT.

Artiom: 1. Be it ordained by the people of the State of Louisiana, as provided by lata,. That the State Debt Ordinance be amended so as to read as follows: That the interest to be paid on the Consolidated Bonds of the State of Louisiana be and is hereby fixed at two per centum per annum for.five years, from the first day of January, one thousand eight hundred and eighty (1880), and four per centum per annum (hereafter, payable semi-annually; and there shall be levied an annual tax sufficient for the full payment of said interest, not exceeding three mills, the limit of State tax for all purposes being hereby fixed at six mills; and said bonds and coupons shall be duly stamped: “Interest reduced to two per centum per annum for five years from January 1, one thousand eight hundred and eighty, and four per centum per annum thereafter.”

This amendment was regularly submitted to and adopted by the people, and became part of the Constitution in 1884, and has remained unaltered to this time.

We append, also, the following summary of the legislative enactments since adopted and upon which the treasurer' principally relies — the selections are made from the brief of the respondent’s counsel, viz.:

“ The Legislature has frequently construed the Debt Ordinance as. repealing the legislative provisions creating the Redemption of Public Debt Fund and providing for the purchase of bonds. The first act of this character is Act No. 77 of 1880, which, in the first paragraph of Sec. 4, provides that ‘ the surplus of said tax shall be applied to the establishment, maintenance and support of the free, public schools throughout the State.’

“The next expression of the Legislature upon this subject is to be found in Joint Resolution No. 75, of the Session of 1882, which provides that the excess of interest in the treasury collected or collectible, and appropriated to pay the interest on the Consolidated and Constitutional bonds of the State, and General Account Fund,. shall be turned over and credited to the General Fund of 1880, 1881, 1882, 1883 and 1884, the excess of each year being credited to the General Fund of said year.’ The Legislature, the same year, in Act No. 96 of 1882, in the first paragraph of Sec. 77, ordained that ‘the surplus of said tax should be applied to the General Fund.’

“Again in 1884, by Act No. 107, at pp. 138 and 139, the surplus of the Interest Tax for 1884 was applied to the Current School Fund, and for 1885 and subsequent years to the General Fund.

“Act No. 98 of 1886, treating of the disposition of the Interest Fund, contains the following provision: ‘That not more than f480,000 of the interest, so collected, shall be applied to the payment of the interest due on said consolidated bonds and the surplus of said tax to be applied to the General Fund.’

“ The last expression of legislative construction of the State Debt Ordinance will be found in Act No. 85 of 1888, Sec. 89, where the same disposition is made of the surplus as in the previous acts hereinabove quoted.

“ It appears from the acts cited above that the uniform interpretation of all the Legislatures, that have acted upon the question, is, that the State Debt Ordinance of 1879 abolished the ‘ Redemption of the Public Debt Fund,’ and authorized the levy of a tax for the payment of the interest only, the surplus, if any, arising from said tax to be under control of the Legislature and payable only in pursuance of specific appropriation thereof, under the limitations imposed by Art. 43 of the Constitution of 1879 and all other limitations of that instrument.”

II.

Taking a comprehensive view of the foregoing provisions of law —statutory and constitutional — it is evident that there is imposed upon the respondent the ministerial duty that is clearly outlined in the relator’s petition; therefore, the question of controlling importance in this ease is whether or not same have been repealed by subsequent legislation. For it is provided by the funding act of 1874 that the levy and appropriation therein provided for “ shall authorize and make it the duty of the auditor and the treasurer, and the said board, respectively, to collect said tax annually, and pay said interest and redeem the said bonds, until the same shall be fully discharged.”

The constitutional amendment of 1874 provides that “ the rax required for the payment of the principal and interest of said bonds shall be paid, principal and interest, and the proceeds shall be paid by the treasurer of the State to the holders of said bonds, as the principal and interest shall fall due,” etc.

The legislative enactment of 1877 (regular session) provides that the treasurer shall “ set apart annually, out of the proceeds of the five and one-half mill tax, an amount equal to the interest coupons maturing on the first day of July of said year, and the first day of January next following; and the surplus, if any remaining after said amounts shall have been collected and set aside, as well as the surplus, if any, resulting from the provisions of the third amendment to the Constitution of the State, proposed January 24, 1874, * * * shall be deposited with the fiscal agent at credit of a specific and distinct fund to be called and known as the ‘ Redemption of the Public Debt Fund,’ and shall be used exclusively, under the direction of said Board of Liquidation, for the retirement and sinking of consolidated bonds and past due coupons, to be purchased from bidders offering the same at the lowest price,” etc.

The legislative enactment of 1877 (extra session) further elaborates and enlarges the powers of the officers charged with the performance of the functions of the funding law, and declares that “it shall be the duty of the Treasurer to set apart annually, out of the proceeds of the five and a half mills tax, an amount equal to the interest coupons maturing on the 1st day of July of said year, and the 1st day of January next following; and the surplus, it any, remaining after said amounts shall have been collected and set aside, as well as the surplus, if any, resulting from the provisions of the third amendment of the Constitution * * * shall be deposited with the fiscal agent at a credit of a separate and distinct fund, to be called the Redemption of the Public Debt Fund,’ etc.” And it further provides that “ it is hereby made the duty of the Treasurer to keep separate accounts of the income and expenditures of each fund in each year; and, after setting apart or paying'out an amount thereof equal to the appropriations and warrants lawfully made against each of said funds, the surplus, if any remain, shall be immediately deposited by the Treasurer at the credit of the Redemption of the Public Debt Fund, arid the Board of Liquidation is hereby authorized to require from the Treasurer or from Fiscal Agent, at any time, a statement of the condition of any such fund or funds.”

To determine whether the foregoing have been repealed we must keep in mind other provisions of the funding laws and the constitutional amendment of 1874, as well as those quoted, and compare them wiqh the provisions of the debt ordinance of 1879, which, it is contended, had the legal effect of producing an implied repeal thereof.

The constitutional amendment of 1874 declares amongst other things that the issue of consolidated bonds, authorized by the funding law of that year, created a valid contract between the State and the bondholders “ which the State could by no means impair. That the tax required for the principal and interest of said bonds shall be assessed and collected each and every year until the bonds shall be paid, principal and interest.”

But the most important provision of said amendment is to be found in its last section, which reads as follows, viz.:

“ The revenue of each year derived from taxation upon real, personal and mixed property, or from licenses, shall be devoted solely to the expenses of the said year for which it shall be raised, excepting any surplus remain, which shall be directed to sinking the public debt.”

In this wise the legislation of 1877 appears to follow the plain and' unambiguous precepts of the constitutional amendment, both of which plainly contemplate and require the surplus interest aceumu- • lations to be seggregated and kept apart from other funds, and especially consecrated to “the sinking fund of the public debt,” capital and interest.

The remaining question for consideration is the purport and effect of the debt ordinance of 1879 upon the provisions of the funding laws and the constitutional amendment of 1874.

It must, however, be at once observed and kept in mind, that the debt ordinance forms no part of the Constitution, because it is therein formally declared “that the foregoing provisions and articles relative to the consolidated debt shall not form a part of this Constitution, except as hereinafter provided,” etc.

Its provisions are entirely independent and separate from the body of the Constitution, though, at the same time, constituting an integral part of the organic law.

Now what are the provisions of the Debt Ordinance? When paraphrased they are as follows, to-wit:

First — That the interest to be paid on the consolidated bonds of the State be and is hereby fixed at two per cent, per annum for five years from the first of January, 1880; three per cent, per annum for fifteen years, and four per cent, per annum thereafter, payable semiannually.

Second — That there shall be levied an annual tax sufficient for the full payment of said interest, not exceeding three mills, the limit of all State tax being fixed at six mills.

Third — That holders of said bonds were given the option to demand, in exchange for the bonds held by them, bonds of the denomination of $5, $100, $500 and $1000, to be issued at the rate of seventy-five cents on the dollar of bonds held, ’ and to be surrendered by such holders, the said new issue to bear interest at the rate of four per cent, per annum.

Fourth — That the holders of consolidated bonds not desiring to make such exchange can be permitted to' have their bonds stamped with the words “interest reduced,” etc., so as to enable them to have the benefit of interest collections therein provided.

These are all the fundamental provisions of the ordinance. They deal exclusively with the interest, and not with the capital of the bonds, which were allowed to remain in statu quo. The fact of the bondholders being given the option to surrender their holdings and to receive other bonds in exchange, on the terms proposed therein, did not impair — nor purport to impair — the force or validitj of those bonds as a binding contract between the State and the bondholders; nor do we think the framers of the ordinance entertained any such idea. And the interest, constituting, as it does in law, a part of the contract, was no more interfered with by the ordinance than was the capital of the bond, except as to the rate of interest bondholders were to receive. And the acceptance of this reduced interest depended upon the option of the bondholder, who was at liberty to decline to receive same; though it must be confessed that it left him without remedy to enforce the payment of the full rate of seven per cent., unless the State consented to let herself be sued. But, this question aside, it is clear that the ordinance not only did not impair the obligation of the contract, but specially recognized the existence and validity of the bonds, with their reduced interest, and made special provision for the payment of the interest, though the amount of the interest tax. was reduced so as to correspond with the reduced rate of interest.

True it is, that Section three of the ordinance declares “ that the coupons of said consolidated bonds falling due the first day of January, 1880, be and the same are hereby remitted, and any interest taxes collected to meet said coupons are hereby transferred to defray the expenses of the State government; ” but this declaration only serves to enforce the view we have expressed in reference to the bonds and interest generally.

It is evident that it was not the intention or object of the framers of the ordinance to abrogate the constitutional amendment of 1874, or to repeal any legislative enactment under it; though it was confessedly their purpose and object to disembarrass the State by super-inducing the bondholders’ acceptance of a more economical and juster rate of interest upon its large bonded indebtedness, which was of more than questioned validity.

True it is that the Supreme Court did employ the language attributed to it in the respondent’s return, whichis to the effect “that the object of the State in adopting the debt ordinance of 1879 was to stop the further payment of the promised tax,” but this expression was closely coupled in the same sentence with the further expression that it was likewise intended “ to prevent the disbursing officers from using the revenue from previous levies to pay the interest falling due in January, 1880.” But we are at a loss to perceive on what language of the ordinam.ee the court predicated the expression that it was the object of its framers to prevent the payment of “ the principal and interest maturing afterward;" and the further expression “that the Constitution of 1879 on its face takes away the power of the executive officers to comply with the act of 1874,” etc.; and there is no article or provision of the body of the Constitution referred to, in the opinion of the court, which justifies this observation.

On the contary, the Constitution formally and in terms declares that “ all rights, actions, prosecutions, claims and contracts, as well of individuals as of bodies corporate; and all laws in force at the time of the adoption of this Constitution, and not inconsistent therewith, shall continue as if said Constitution hadnot been adopted.” Const., Art. 258.

This provision is certainly broad enough to save and except from its repealing effect the amendment of 1874 and legislation under it.

In addition to this, it is a noteworthy fact that the Supreme Court, in Louisiana vs. Jumel, 107 U. S. 711 — the case relied upon by the respondent — dealt with the interest coupons of 1880 alone, and consequently any expression of opinion in reference to other interest coupons or bonds was not authoritative as a precedent.

Our conclusion on this branch of the case is that the debt ordinance of 1879 did not reach and repeal the constitutional amendment of 1874 nor the legislation under it, but, on the contrary, left them in full force — with the solitary exception stated with regard to the reduction of the rate of interest and the diminution of the amount of the interest tax imputable thereto.

On this question our learned brother of the lower court expressed the following view, to-wit:

“ It seems to me, that the Constitution of 1879 made no change whatever ,in the consolidated bonded debt of the State, except as to the remission of the interest called for by the coupons due January 1, 1880, and the reduction of the rate of interest from 7 per cent, by gradual steps to the rate at which it is now current, say 4 per cent. Dealing with the bonded debt, fixing the rate of interest and levying the tax to meet the annual interest, constituted an acknowledgment of the principal of the debt itself, as solemn and imposing as could have been made. The limit fixed in 1874 to the volume of the debt, the maturity of the debt at forty years from January 1, 1874, and the obligation of the State to meet and pay it within this term, together with all the essential details for the determination and funding, excluding the one particular of a change in the rate of interest, were as perfectly implied in the State debt ordinance of that instrument as if they had been reproduced and stated at length. When the Constitution of 1879 levied the annual tax to pay the interest it seems to me it did not mean to direct that the interest alone should be paid, and that the principal debt should not be paid, nor that if there should be an excess of money resulting from the interest tax, that such excess should be diverted to some purpose other than the purchase and retirement of the bonds, as occasion might admit, which purchase and retirement formed a part of the stipulations of the “contract” evinced by the legislation of 1874 and 1877 in the funding of said debt. On the contrary, it seems to me that all this was matter of necessary implication, which kept in force the special laws necessary for the continued funding and management and payment and cancellation of the bonded debt, in capital as well as in interest. By the terms of Art. 258 of that Constitution, all “ rights,” “ claims,” “contracts” and “laws” in force were continued in force, as if the said Constitution had not been adopted; provided, there was no inconsistency between them and its provisions. Wherein there is any inconsistency between its provisions and the acts of 1874 and 1877, except in the one particular of the rate of the annual interest on the bonded debt, I do not see. The amendment of 1874 to the Constitution, which was adopted for the purpose of carrying the funding act into full effect, levied the annual tax. The appropriation was thus then made, quoad hoc, specially, as a continuing appropriation, and wholly independent of the article which regulates ordinary State appropriations, by legislative act, and prohibits the withdrawal of money from the treasury without such act; and so, in like manner, the State debt ordinance, in the Constitution of 1879, has exactly the same effect — i. e., as regards the bonded debt, it operates as a special continuing appropriation, untrammeled by the restrictions of Art. 43, which relates to other matters than the State debt.

“ It has nevar been contended that the debt funded and still being funded, under the acts of 1874 and 1877, does not exist, nor that it must not be paid. No one has disputed the existence or the powers and duties of the board of liquidation under said acts to deal with said bonded debt. That board has been in the full exercise of its functions, under said acts, since 1875, in all respects, as if there had been no change in the organic law in 1879. All these facts borne in mind, it would seem passing strange if, in the one essential function, of greatest moment to the credit of the State and to the best interests of the people — to-wit: the payment and cancellation of this interest-bearing debt out of funds now available, to the extent of near half a million of dollars — the powers of this liquidating board should be held as of no efficacy to that end. How could such be the conclusion when the same acts which called it into existence, the same acts which provided all things regarding the bonded debt as it exists to-day, excepting only the rate of interest, authorized and directed this board to use all accumulated surplus of interest money for the purchase and retirement of the bonds in capital and interest, et id usque ad finem, until the entire bonded debt, that has so burdened the people, shall be entirely canceled?”

In these views we concur, as we regard them conclusive and unanswerable.

If the theory of the respondent were not adequately and sufficiently answered it would find sufficient answer in the constitutional amendment of 1884, whereby the rate of interest was increased— thus specifically recognizing the debt as well as interest^ and putting a different interpretation on the debt amendment of 1879 from the one entertained by the Supreme Court.

Recurring to the amendment of 18'74, it is worthy of observation that it directs and requires that if there shall remain any surplus of revenue in any year it “shall be directed to sinking the public debt,” and that language necessarily includes the principal as well as the interest.

Having reached the conclusion that the amendment is still a part of the organic law, unrepealed by the Constitution of 1879, or the debt ordinance thereto appended; and the State finding herself able and willing to perform an act of justice to her contract creditors, we feel disposed to sanction that desire and put its provisions in force, notwithstanding same have lain dormant for a time.

III.

On the second proposition of the respondent to the effect that the continuing appropriation for interest and the redemption of the bonds, provided in the funding legislation, is inconsistent with Art. 48 of the Constitution of 1879, little be said; for, as already shown, the debt ordinance segregated the debt settlement from all other questions that were treated of in the body of the Constitution, and the two were separately submitted to the people; and hence the two are to be construed as harmonizing, unless necessarily repugnant to each other.

And in our opinion such is not the case in the instance suggested by the respondent.

IV.

Much the same answer may be made to the third proposition of the respondent, that the Constitution limits taxation to six (6) mills, and makes no provision for a sinking fund. But, as we have seen, the constitutional amendment of 1874 — which is still in force — declares, in mandatory terms, that any surplus of interest shall be devoted to “the sinking of the public debt,” the' subsequent legislation on the subject does revoke such provision, and same is perfectly compatible therewith.

V.

In so far as any legislative enactments of dates subsequent to the adoption of the Constitution may have given a different destination to the tax interest surplus of any one or more years, they can not furnish to this court a rule for the interpretation of the constitutional amendment of 1874, as the latter is paramount and must prevail over any contrary statutory enactment.

All statutes enacted subsequent to the adoption of the debt ordinance must be construed in conformity thereto. And, in fact, all of such subsequent enactments dealt with, and only proposed to deal with, an existing fund already collected under existing laws, and could only lead to the supposition that the laws of 1874 and 1877 were not operative on said funds.

All of said statutes are simply revenue laws of the several years in which they were enacted, and did not in terms, or in effect, repeal the laws of 1874 and 1877; and had such been the purpose of the Legislature in their enactment, it was vain and nugatory on account of the substance of the funding act of 1874 having become absorbed into the constitutional amendment of that year, and it not having since been abrogated or repealed.

These legislative acts are thus treated and disposed of by the dis - trict judge, viz.:

“ I have also examined the revenue acts of 1884-86-88. As legislative interpretations regarding the bonded debt and its settlement they are met by the contrary inferences to be drawn from the joint resolution No. 72 of 1888, and the failure of the house bill No. 280 in 1892.

“ As repealing statutes, express or by implication, I think they do not affect the legislation of 1874 and 1877, for several reasons:

“ 1. They are current revenue, or ‘ ways and means ’ acts, and in their titles there is not the slightest mention or reference to the matters of essential substance contained in the acts of 1874 and 1877, which it is argued they have repealed.

2. They are not on the same subject matter as the acts of 1874 and 1877.

“ 3. They do not purport to prohibit the application of the interest fund to the cancellation and retirement of the capital of the debt, as directed by the acts of 1874 and 1877, whenever there is a surplus.

“ 4. If the levy of the continuing tax, by the State debt ordinance of 1879, be in itself an appropriation by the Constitution, they can have no effect to the contrary.

“The same considerations are applicable to the joint resolution of 1882, but on the admitted facts regarding the several funds, none of these acts, unless possibly the act of 1882, could have any effect, in any event, upon the present issue.”

In these views we also concur, as we believe them to be sound and correct.

"We have given this ease most careful, consideration — such as the gravity of the same demanded, and are of the opinion that the judgment appealed from is correct, and we adopt the concluding part of the opinion of the district judge as our own, as it is the embodiment of the law, as well as of the philosophy of the case:

“Thus interpreting the laws herein involved, my opinion is that the interest fund, required to be levied by the debt ordinance of 1879, is the debt fund, sacred not only for the current; interest, but for the capital of the debt. I think that, as a constitutional appropriation, there is no authority to divert it. I think that all the es - sential details adopted in 1874 and 1879 for the determination, funding, management and ultimate payment of the bonded debt are in full force, and that it is the duty of the Board of Liquidation, whenever there is a sufficient surplus, to promptly use it for the purchase and retirement of State bonds, and thus not only lightening the burdens of the people, but free the revenues of the State from the embarrassments of debts that were fastened upon her in the evil days that befell her in long ago, in order that they may ñnd application more liberally for the education, protection and general welfare, of her people.”

Judgment affirmed.

Mr. Justice Parlange recused, having been a member of the Board of Liquidation.

Mr. Justice McEnery absent, sick.