text:
    No. 10,671.
    The State ex rel. J. M. Wells, Jr., vs. W. F. Blackman, Judge.
    1. The testamentary executor, confined to jail because of non-compliance ivitli the court’s order to file an account of his administration, presented his account. It is a statement and an account which should bo set for trial. A trial should bo had, and the admissible evidence offered, admitted. The assets of the succession under his administration should be proven and judgment rendered for the balance, after having deducted the debts proven to have been paid.
    2. The appellate court has jurisdiction to determine if a relator has complied with the order of the District Court directing him, as testamentary executor to file an account.

      ^^PPLICATION for Certiorari and Prohibition:

      M. C. Moseley and W. W. Whittington for the Relator.
    Respondent in person.
   The opinion of the court was delivered by

Breaux, J.

In 1874 the relator, being at the time Public Administrator, applied for and had himself appointed dative testamentary executor of the succession of Walter O. Winn.

He caused an inventory of the property of the succession to be made, and took possession.

In 1880 he presented a provisional account of his administration.

On the 15th day of April, 1889, two alleged creditors of the succession having presented a petition praying for an order on the testamentary executor to file his account, showing what moneys he had received and what paid out, it was granted. These petitioners also prayed for his dismissal from the executorship.

He failed to comply with the court’s order, and did not file an account, but instead filed several pleas, which were overruled.

On the 4th of May, 1889, a judgment was rendered removing the executor from his trust.

George A. Staples made application to be appointed dative testamentary executor to succeed the executor dismissed. The application was opposed by the executor who had been dismissed.

Judgment was signed in open court on the 9th day of November, 1889, dismissing this opposition and confirming the appointment of the executor now in office.

On the 5th day of May, 1890, an order was issued to imprison the relator until he complied with the order of court by filing an account of executorship, and thereby purged himself of contempt in not having complied with the court’s order..

While in prison the relator prepared and presented what purports to be an account of his gestión as dative testamentary executor and immediately after applied for his release.

This was denied.

The relator applied to this court to obtain his release from jail and prayed for writs of certiorari and prohibition and all other orders necessary in the premises (to be released temporarily until this court’s session in November), and that after due proceedings, the writs be made peremptory and he discharged permanently.

On the 9th of September, 1890, the respondent judge was ordered to show cause, in writing, why the further execution of the order of commitment should not be suspended until the application for relief shall have been heard and determined.

In compliance with this order the respondent judge filed his answer.

Afterward, on the 22d day of September, it was ordered that the respondent show cause why the relief prayed for should not be granted, and he was directed to file his answer to this order on the first Monday of November, 1890.

In the meantime the relator was released and the further execution of the order of commitment for contempt was suspended pen - dente lite. The respondent was also ordered to annex to his return the original of all the records and documents referred to in the petitions and answers.

The respondent in his answer states that he has forwarded all the original documents called for, which were found in the record of the succession of .Winn. The original inventory and other documents are not in the record and could not be forwarded.

The account filed, upon which the relator relied to obtain his release, and to which the respondent objected as not being an accurate, and as not presenting a full and complete, statement of the affairs of the succession, ■while under the administration of the re - lator is addressed properly to the court.

He, in his account, in a preliminary statement, reseryes the exceptions previously filed by him and mentions the different grounds upon which he previously relied.

He charges himself with the proceeds of the sale of a part of Copeland Plantation made December 5, 1885, viz: $8020.

He credits himself with costs and attorneys’ fees amounting to $528.46.

He presented his account, and, alleging that he had complied with the order of court, prayed to be released; and further prayed that the account be homologated and for all orders necessary in the premises.

In his petition for release relator -alleges under oath that the account that has been filed is a true, correct and proper account.

That the amount charged is the first and only amount belonging to the succession of W. O. Winn which he has received. That it was disbursed as stated in his account, as the vouchers will establish on trial (to determine whether or not it shall be homologated).

For the purpose of supporting his allegations in part, at least, he annexed a copy of the testimony of his attorney at one time.

The attorney testifies that while he was relator’s attorney he collected the funds and paid them, and that the relator did not receive any amount during the time except his commission as testamentary executor. In pursuance of the understanding between him and his client he retained the amount of the succession funds until a certain judgment had been rendered in the United States Court, and then paid it over to the creditors as decreed by the court, the receipts for which are in the file of the succession. The attorney added that since his discharge he had not attended to any of the functions of the executor.

The foregoing being the statement of the case, we at once state that the account should contain a statement of the receipts and payments of the executor and of the property received, that sold, and the remainder delivered to the present executor. But the record does not disclose the facts necessary to enable us to determine whether the account is an absolute nullity or not, nor can we satisfactorily determine how much or how little of the property has been accounted for. The inventory is not in evidence; there is no testimony respecting the assets of the succession; whether large or small, is not proven.

Not the least reference is made to any particular property received by the testamentary executor, for which he has failed to account, nor to any particular amount.

If the succession owns considerable property, which has been received by the executor, and which he retains; if he has made large collections of money for which he fails to account, the statement presented is absolutely incomplete; but if the amounts be small, and he has attempted to include a proper statement in his account, although the required forms have not been observed, and matters of substance may be to some extent wanting, the account filed is complete enough to enable him to obtain his release.

The respondent judge alleges in his answer that he has the authority, and that it is especially within his province to compel compliance with the order issued to account, and to see and determine whether the officer has complied.

In the event of absolute refusal to account, the position is correct.

We presume respondent relies upon the case of the State ex rel. Kiernan & Waters vs. Judge, 41 An. 315, and authorities quoted. No case is quoted or any authority referred to. We have not been favored with a brief by the relator, nor by the respondent. Assuming that these decisions are relied upon, we do not discover any great analogy in the cases with the one under consideration. They arose from a violation of an order of injunction.

The court condemned the infringers of the order to ten days’ imprisonment. On a review of the District Oourt’s action this court did not entertain jurisdiction; refused the writ of certiorari, and decided that in issuing the injunction the court exercised a right vested in it; that the injunction was a proper exercise of judicial authority; that the disobedience was a contempt, and that the proceedings were regular.

Had it exceeded the limit of judicial authority, the result would doubtless have been different; jurisdiction would have been entertained.

If, for example (although the defendant had acknowledged the court’s power, and no further acts of violation had béen committed), after the ten days’ imprisonment had elapsed another term of imprisonment had been ordered without the least authority, the appellate court would not have refused relief and declined to order the release of the prisoner.

If an administrator files his account, his imprisonment and all ■contempt by disobedience-is at an end; the appellate court will not be closed against application to obtain his liberty.

The District Oourt in the injunction cases before referred to had the exclusive authority to compel obedience to its order, and to punish disobedience by sending the disobeyer to jail any number of days not exceeding ten, and to renew the penalty in case of persistent violation.

In probate proceedings the recalcitrant executor can, under the orders of the District Court, be imprisoned until he files his account' of administration as ordered. C. C. 1011.

This is particularly within the exclusive authority of that court.

When the party condemned has incurred the penalty in the former cases (the injunction cases before mentioned), or when in the latter (as in the case at bar) he has filed his account, the limit of the exclusive authority is reached; and if necessary to secure his release, the appellate court will not decline jurisdiction.

We unhesitatingly conclude that the relator should not be again imprisoned under the original order isssued, and that he should be given the opportunity to prove the correctness of his account on trial. The desire of the respondent judge to bring about a final settlement of the succession is commendable, but we do not discover that his purpose will be more readily subserved by prolonged imprisonment of the relator.

If the condition of the succession be as alleged in respondent’s answer, the relator by filing and persistently presenting his account as correct will thereby expose himself to loss and future troubles without thereby obtaining extraordinary delay.

The court’s decree, on issue joined, can remodel the account so as to make it conform to law and justice (in case the remodeling be necessary).

The writ of prohibition is made peremptory, and the relator discharged. ■


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 10,672.
    The State ex rel. Harmony Club vs. The Judges of the Court of Appeals for the Parish of Orleans.

      J/andcmus will not issue to compel the Court of Appeals to pass upon the merits of a case, in which lesé than $500 is claimed, and where questions of law alone are involved, where the record does not- contain the statement of facts required by the rules.
    The testimony and evidence received by the District Court, though in the record ■will not supply the wanted statement of facts. In such cases the court has jurisdiction over questions of iaw alone.

      Tlie Court of Appeals is called on to decide questions of law as to facts found by the lower court, and not as to facts to be found by tlie appellate court.
    The article of the O. P., 601, refers to eases tobe tried on appeal, both on the facts and on the law, but not to eases over which the appellate court has jurisdiction as to questions of law alone. »
    ^^PPLICATION for Mandamus.

      Henry L. Lazarus for the Relator:
    Tlie rules of practice regulating- appeals to and proceedings in the Supremo Court shall apply to appeals and proceedings in courts of appeal, so far as they may be applicable, until otherwise provided by law. Art. 103 of the Constitution.
    Where the testimony lias beenreducedto writing by the cleric, it serves as a statement of facts, if the parties should not agree to one. C. P., Art. 601; 6 La.120: 10 La. 562 ; 29 An. 72; 21 An. 134; IS An. 262.

      Buck, Dinkelspiel & Hart for the Respondents.
   The opinion of the court was delivered by

Bermudez, C. J.

This is an application for a mandamus to compel the respondents to try, on its merits, a case which they have dismissed for want of jurisdiction.

The complaint is that the court has jurisdiction, and that it ought to be made to exercise it, by deciding the merits of the controversy.

It appears that the relator brought a suit to prevent the Gas Light Company from removing.a meter which had been placed in the premises occupied by the club, to measure the quantity of gas consumed, and that in the petition it had been alleged that if the meter was removed the club would sustain .damages exceeding $5000.

The injunction was allowed, but after issue joined was dissolved..

An appeal was then taken by the club to this court, but it was dismissed, for the reason that the amount of damages, susceptible eventually of being sustained, could not exceed $1700, which is less than the lower jurisdictional limit of this court.

The club next took an appeal from the judgment of the District-Court to the Court of Appeals for the Parish of Orleans.

A motion to dismiss this appeal was there made on two grounds:

1. The amount involved [does not exceed one hundred dollars.

2. If otherwise, it is less than five hundred dollars ($500), and the appeal is not brought up in such manner as to enable the court to pass upon the questions of law, if any, involved therein.'

The Court of Appeals sustained the motion, holding that, were the plaintiff to sustain the apprehended damages, these would not exceed $85, and that if they exceeded $100, they would be less than $500; that in appeals in such cases the jurisdiction of the court was restricted to questions of law, and that .there was no statement of fact, bill of exception or special verdict in the record to justify the court in passing upon the merits of the controversy; that for the failure of the appellant to have complied with the rule of court requiring such statement, bill or verdict, the appeal should be dismissed; and it ordered accordingly.

The relator here now charges:

1. That the damages, if sustained, would exceed $1600.

2. That they surely exceed $100.

3. That, in the first case, the Court of Appeals having jurisdiction over the facts and the law, and the testimony and evidence received below being of record, it should pass upon the merits; and in the second cáse, that the proof being equivalent to the statement of facts required, the rule has been complied with, and the Court of Appeals ■should pass upon the merits as far as they involve questions of law.

The judges of the Court of Appeals have entered appearance in this court, and, in justification of their action, have referred to the original proceedings and the opinions which they have delivered therein on the subject of jurisdiction.

We are under the painful necessity of again announcing (41 An. 1012) that answers in such cases should contain a statement of the reasons for which the relief sought should not be granted, and that .a reference to proceedings should be made only in support of them.

I.

It is clear that the apprehended damages, if sustained, would exceed $100, but be less than $500.

They would consist of $48 per annum from the incipiency of the suit, March 16, 1889, to the termination of the lease of the club to the premises in which the meter was placed, i. e., September 30, 1891, more than two years and six months, which make it some $120.

ii.

The Constitution, Art. 128, provides that in such cases the Court of Appeals should have jurisdiction over questions of law only.

It is therefore evident that in such cases the appellate court has no jurisdiction over the facts.

The rules which it has established require that in cases of that category there shall be a statement of facts, bills of exception, to enable it to pass upon the questions of law thereby presented.

The substitution of the testimony and evidence received by the District Judge to this required statement of facts does not satisfy the rule.

The Court of Appeals would be called on, in a case in which it has jurisdiction over questions of law alone, to inquire into, ascertain and announce the facts. This would place that class of cases on the same footing with those in which more than $500 is involved, and in which the court is to pass on both the facts and on the law.

The Court of Appeals, in such cases, has jurisdiction to decide questions of law alone on facts found, and not on facts to be found.

The article of the Code of Practice (601) which the relator invokes has reference to a state of things in existence in 1826, and has no bearing on such occurring since 1879, when the jurisdiction of the Court of Appeals, then created for the parish of Orleans, was defined by the Constitution. The code prescribes how cases could be taken on appeal to the Supreme Court, then in existence, which had jurisdiction over both facts and law, and in no way refers to appeals in which questions of law alone can be reviewed.

The theory on which the relator grounds a claim for relief here to show that possible injury exceeds $500, because of previous sayings of this court, lacks all foundation.

When the motion to dismiss was before this court we did not undertake to state what the injury apprehended might amount to, if sustained, because the lease of the clubto the premises, not being in the transcript, its duration could not be ascertained and arguendo we simply considered that, even if it were, it could not implicate the gas company beyond the term of its charter, which had thirty-five years to run, and that in such event the damages could hardly exceed $1700, the inferior limit of an appellate jurisdiction.

Now, the lease was produced by the relator before the Court of Appeals, and it expires on December 30, 1891.

As already shown, the injury, if any, wpuld be less than $500.

The Court of Appeals properly. declined, to pass on the merits of the case.

It is therefore ordere.d that the application herein be refused with costs.


author: Fenner, J.

text:
    No. 10,662.
    The State ex rel. Bobet Bros. vs. The Judge of the Court of Appeals for the Parish of Orleans.
    1. Where neither the principal nor the roconventional demand exceeds $2000, neither is appealable to this court.
    2. The amounts involved in both can not bo cumulated to éstablisli jurisdiction, and the case is not affected by the fact that the decision of both depends on the solution of the same question arising under the same contract.
    y^PPLICATION for Certiorari and Prohibition.

      Charles Carroll for the Relators:
    “ Tlie real amount in dispute, exclusive of interest, whenever the same can bo legally ascertained from the pleading's and documents, and not the allegations of thcparlies, is to be the test of the jurisdiction of the Supreme Court.” See 82 An. 929 ; 32 An. 1191; 38 An. 394.
    Whore a suit involves an orignal demand for $317.87, based solely on the claim that defendants are liable as sureties on a contract for more than $2000, and a recon-volitional demand claiming repayment of $1708.67, paid under protest by reason of the same contract — the judgment as to both original and roconventional demand depending solely on the question, whether or not the contract is binding on tlic defendants — then the matter in dispute is the amount of both demands, $2116.54, and the Court of Appeals is_without jurisdiction. Const., Arts. 81 and 128, as amended; Lartigue vs. White, 25 An. 291; ICllis vs. Silverstein, 26 An. 47; Beirne vs. Gill, 34 An. 7; State ex rol. vs. Judge, 24 An. 601; State ex rel. vs. Judge, 21 An. 65; Peychaud vs. Weber, 25 An. 133.
    If in a suit involving' an original and roconventional demand, tbe judgment to be rendered on both demands depends solely and entirely on one and the same question; and if that judgment will affect the parties litigant to an amount in excess of $2000, then “the matter in dispute” exceeds that sum, and the Court of Appeals is without jurisdiction. The eases where the original and recon- ■ ventional demands have not been cumulated are eases presenting two suits in one, where the matter in dispute on the one hand was different from the mattcr in dispute on the other — each requiring a distinct and separate examination. See Gove vs. Kendig, 3 Rob. 386; Hanna vs. Rartlette, 10 Rob. 438; lix parte Goodwin, 11 Hob. 12; Lamorore vs. Avery, .32 An. 1008.

      Rice <& Armstrong for the Respondents:
    1. In an appeal from a judgment upon a principal and upon a reconventional demand tlie jurisdiction of the appellate court depends, as to tlie principal demand, upon its amount; and, as to tlie reconventional demand, upon its amount. Tlie principal and reconvenlional demands are not to be aggregated in order to determine tlie appellate jurisdiction. Const, of State, Art. 128, as amended; Gove vs. Kendig, 8 Rob. 387; Hanna vs. Bartletle, 10 Rob. 438; JCx 2>aHe Goodwin, 11 Rob. 12; Uamorero vs. Avery, 32 An. 1010; Dean vs. Ciarle, 5 An. 105; Tardos vs. Ship Toulon, 14 An. 190; Stevenson vs. Whitney, 33 An. 658; Smith vs. Ins. Co., 33 An. 1072; Colomb vs. McQuaid, 3G An. 827; Prejean vs. Docompte, 41 An. 748.
    2. In ease of money demand, the jurisdiction of the appellate court depends upon llie amount, and not upon tlie cause of demand.
   The opinion of the court was delivered, by

Fenner, J.

The relators invoke the exercise of our supervisory jurisdiction to prohibit the Court of Appeals from entertaining an appeal which, it is claimed, is not within the jurisdiction of said court.

The appeal is taken in a suit in which the plaintiff claims a judgment against the defendants for §347.87, and in which the defendants deny said claim, and, assuming the position of plaintiff in re-convention, pray for judgment in their favor for §1768.67.

Both the principal and the reconventional demands are within the jurisdiction of the Court of Appeals.

As we very recently said,'“ It is well settled that the appealable character of the principal and reconventional demands must each be separately established, and that the amounts of both can not be cumulated to bring the amount within our jurisdiction.” Prejean vs. Lecompte, 41 An. 748; see also Colomb vs. McQuaid, 36 An. 370; Smith vs. Ins. Co., 33 An. 1072; Stevenson vs. Whitney, Id., 658.

The rule must be applied in this ease. It can not be varied by the • fact that the decision of both demands depends on the solution of the same question arising under the same contract.

Whatever may have been the measure of the original rights and obligations of the parties to this contract, if they have so dealt with each other that neither can or does claim from the other an amount exceeding §2000, they have necessarily placed their demands outside of our jurisdiction, and within the jurisdiction of the Court of Appeals.

We have attentively considered the several authorities quoted by-counsel for relators, but find them all to rest on different principles,, and not applicable to this case.

It is therefore ordered that the writs prayed for be denied at relators’ cost.


text:
    No. 10,615.
    Succession of Paulino Del Escobal.
    3. Tlie nuncupative testament by public act need contain no other description o£ the witnesses than their names, their number and their residence. It need not expressly negative the existence of incapacities, which are mutters for exterior proof, as ground of nullity.
    2. Where the will describes the witnesses as domiciled in the place, that sufficiently declares their residence, because domicil, ex ri termini, includes residence.
    PPEAL from the Civil District Court for the Parish of Orleans.. Bightor, J.

      James Wilkinson for the Appellee.

      Charles Louque for the Appellant.
   The opinion of the court was delivered by

Fenner, J.

The decedent left a nuncupative will by public act,, probate of which was opposed by the legal heir on the grounds that the will does not show on its face:

1. That the witnesses were over the age of 16 years, and male.

2. That said witnesses are not stated to be possessed of their sight.

3. That they do not appear to be residents of the place where the will was made.

4. That it is not stated the will was dictated within the hearing: of said witnesses, and that they understood the language in which it was made.

The two first grounds are frivolous. The law provides that “the nuncupative testament by public act must be received by the notary in presence of three witnesses residing in the place where the will is. executed, or of five witnesses not residing in the place.” R. O. C-1578. The act need contain no other description of the witnesses than their names, their number and their residence. Subsequent Articles 1591 and 1592 prescribe certain circumstances which render persons incapable of being witnesses to testaments, and proof of such incapacities might serve as ground for annulling the will. But no provision requires that the testament should expressly negative the existence of such incapacities. Sue. Murray, 41 An. 1116.

The third objection has no force, because the testament expressly describes the witnesses as ‘•‘domiciliésen ceííemiíe.” Domicil, necessarily and ex vi termini, includes residence, at least when coupled with the presence of the party at the place of domicil. R. O. O. 38.

The fourth objection is unfounded, because the testament expressly átates that the will was dictated in the presence of the witnesses, and it was not necessary to state that they understood the language in which it was made.

Judgment affirmed.


author: Watkins, J.

text:
    No. 10,666.
    The State ex rel. Caroline Lacaze vs. The Judges of the Court of Appeals for the Parish of Orleans.
    As $1000 in value inrests the Court o£ Appeals with jurisdiction, and a matter in dispute in excess of $2000 divests it, an averment in the pleading's, tjiat the amount involved is o£ more than one thousand dollars m value confers jurisdiction on that court, and does not exclude it.
    yl^PPLICATION for Mandamus.

      Benjamin Ory and Moise & Oahn for the Relatrix.

      E. N. Whittemore for the Respondents.
   The opinion of the court was delivered by

Watkins, J.

The relatrix as plaintiff and appellant in a suit depending in the respondents’ court, and which is entitled Mrs. Caroline Lacaze vs. Mrs. Kate Priestly, seeks by mandamus to compel the respondents to take jurisdiction and decide said case.

That suit involves a servitude of drain, and the defendant, as the owner in possession of the premises adjoining that of the plaintiff, was enjoined by the latter from unlawfully interfering therewith. Her petition alleges that defendant’s acts in the premises “would destroy her servitude and cause her irreparable injury, * * *

which, although it can not be estimated in money, is of a value considerably over $1000.”

The defendant’s answer employs a similar phrase in referring to the value of the right which she claims to be entitled to exercise, viz: “and which right is of the value of more than $1000.”

The cause was argued and submitted by counsel on both sides, and the same was taken under advisement by respondents. Subsequently, they rendered the following decision, viz: “Upon the showing made by the parties, this court can entertain jurisdiction of the appeal only to dismiss it, ex proprio motu, at appellant’s cost.”

There is nothing on the record to show on what ground the respondents declined to take jurisdiction of said cause; but we find an affidavit of a person familiar with the locus in quo, to the effect “that the right involved in this suit is worth, to the plaintiff, more than $500, and less than $2000.” And counsel state that it was filed* lor the consideration of the court in connection with the motion for rehearing.

As it appears that the respondents refused to grant a rehearing, ■we presume they declined to consider the affidavit, and, entertaining the opinion that the pleadings did not clearly show that the matter in dispute was not in value less than $2000, dismissed the appeal.

The only answer made by respondents is a reference to the record as quoted above.

With due respect to the opinion of our learned brothersof the Circuit Court, we think they erred. The language quoted from the pleadings being taken as our guide, it clearly appears that the matter in dispute exceeds one thousaiid dollars in value. Does it appear, therefore, that it exceeds two thousand dollars? It does not. The constitutional amendment confers jurisdiction on this count, “ when the matter in dispute, or fund to be distributed, shall exceed.$2000, •exclusive of interest.” Art. 81, amendment of 1882.

This court has no jurisdiction of such a case, and if this one were brought here on appeal, we could not entertain jurisdiction of it. (Courts of Appeal have conferred upon them by constitutional amendment jurisdiction of all causes wherein the matter in dispute, or the fund to be distributed, shall exced $100, exclusive of interest, and shall not exceed $2000, exclusive of interest. Art. 95, and amendment of 1882.

The phrase “more than $10Q0” does not express, or necessarily imply, “more than $2000.” The amount involved is more than $1000, and it is not alleged to be more than $2000. As the respondents’ court has jurisdiction of suits involving more than $1000, and the amount involved in this suit in question is alleged to be more than $1000, and there is no averment that it is more than $2000, whereby this court would have jurisdiction, the respondents’ court must have jurisdiction of it, ex necessitate rei.

As $1000 in value invests the Court of Appeals with jurisdiction, and an amount in excess of $2000 divests it, how can it be said under the' pleadings in the case of Lacaze vs. Priestly that respondents’ court is divested of jurisdiction? It can not. To so hold, would be to decide that there is a hiatus in appellate jurisdiction. The mandamus must be made peremptory. •

It is therefore ordered and decreed the provisional mandamus be made peremptory at respondents’ cost.


text:
    No. 10,715.
    The State ex rel. Matranga vs. The Judge of the Criminal District Court, Division A.

      Certiorari lien only to ascertain tlio validity of judicial proceedings on their face, and, when questioned, the jurisdiction of the court entertaining them. It can not serve to review a judgment.
    In the instant case, the proceedings being regular and the jurisdiction unquestioned, the application can not be entertained.
    A PPLICATION for Certiorari.

      Lionel Adams for the Relator.

      Jas. C: Walker for the Respondent.
   The opinion of the court was delivered by

Bermudez, C. J.

This is an application for a certiorari.

The relator complains that the respondent judge has refused to order the Criminal Sheriff to allow certain parties named, a detective and a newspaper reporter, to visit him for the purpose of assisting him in preparing his defence against a criminal prosecution for a grave offence, and he claims that the privilege asked, ought to have been allowed.

The District Judge returns, laboring to justify his refusal.

It appears that the relator has applied to the District Judge, stating his grievance and alleged rights at length, for a mandamus on the Criminal Sheriff, commanding him to allow certain persons to communicate with him, in order to assist him in the preparation of his defence; that the sheriff has answered, claiming that he had, in such matters, a discretion which the court could not control, and that the judge sustained this defence.

The object of the present proceeding is obviously to have this court to review the ruling of the District Judge, and to decide that the relator is entitled to the privileges which he asserts.

If the District Judge has erred, his error is not revisable in the present proceeding.

The functions of a certiorari are simply to ascertain the validity of proceedings before a court of justice, either on the charge of their invalidity, because the essential forms of the law have not been observed, or on that, of the want of jurisdiction in the court entertaining them.

It has never been to inquire into the correctness of the judgment rendered where the forms of the law have been followed, and where the court had jurisdiction, and was therefore competent. '

Hence, it has been held, that the supervisory jurisdiction of this court, under a certiorari, must be restricted to an examination into the external validity of the proceedings held in the lower court. It can not be exercised to review the judgment as to its intrinsic correctness, either on the law, or on the facts of the ease. The supervisory powers of the court must not be confounded with its appellate jurisdiction. State ex rel. Valeton vs. Skinner, 33 An. 257; State ex rel. Gooch vs. Justice, 38 An. 968; State ex rel. Broussard vs. Justice, 39 An. 776; also, State ex rel. Unbehagen vs. Justice, 34 An. 365; 41 An. 179, 557.

In the case referred to, the District Court had jurisdiction and the proceedings are regular on their face.

If the relator has the rights which he asserts, and, if by the refusal of the District Judge to recognize and enforce them, he is prevented from preparing his defence, and the matter is properly presented in the prosecution proceedings, the same may be inquired into on an appeal and justice can then be done.

For the time being, the court is impotent to afford the relief asked.

It is therefore ordered that the restraining decree herein made be rescinded and that the application be dismissed with costs.


author: Bermxtdez, C. J.

text:
    No. 10,736.
    The State ex rel. Matranga et al. vs. The Recorder of the First District for the Parish of Orleans.
    The fact that the grand jury is investigating a charge of murder against accused in custody, without the benefit of bail, is no justification for a recorder to decline to fix and examine the complaint before him.
    Such investigation does not suspend the pending prosecution befox’C the recorder.
    While under Section MHO, Xt. S., justices of the peace have no authority to investigate such charges, the same being vested in District Judges only, the recorders of the city of New Orleans under previous laws, under the Constitution and the city charter, are empowered to do so.
    It is the mandatory duty of the recorder before whom such complaints arc lodged, to proceed to the investigation thereof, unless the grand jury discharge the accused, or the State discontinues the prosecution before him.
    The action of the recorder, however favorable to an accused, can not relieve the gtand jury of the duty or deprive them of the right to investigate the charges against the accused, or divest them of tlicir power over the accused.
    The recorder, although bound to proceed with the pending prosecution, may, nevertheless, on proper showing, after the case shall have been ilxodfoi'examination, continue the same for any valid cause, in the exercise of a sound legal discretion.
    The remedy asked is the proper one and on the record, must be allowed.
    y^PPLIOATIOJiT for Mandamus.

      Lionel Adams, A. D. Henriques ar.d Arthur Gastinel for the Relators:
    The recorder is commanded by the State law to perform the duty required of him K. S., Sec. 1010.
    The remedy is a mandamus because •
    The object of those proceedings is to prevent disorder from a failure of justice High’s Kxt-. Leg. Iiem., See. 1.

      2. Petitioners have a clear, legal right which slumld be enforced, and there is no other effective lawful means of enforcing the right. Iligh’s Extr. Leg. Rem. See. 10; Heard’s Shortt Extr. Rem., foot paging, 225 et eq.

    3. Petitioners invoice the writ to compel the inferior tribunal to exercise a jurisdiction which it posses but refuses to exercise. Heard’s Shortt Leg., foot paging 332; High’s Kxtr. Leg. Rem., Sec. 130; Ex parte Parker, 120 l’. S. 738; Ex parte Rrown, 116 U. S. 401; Ex parte Railway Co., 101 XL S. 711, 720.

      C. H. Luzenberg, District; Attorney, for the Defendant:
    A preliminary examination before a committing magistrate is notin Louisiana a prerequisite to a prosecution for crime. State vs. jRunger, 14 An. 463; State vs. Anderson, 30 An. 55S.
    Except by force of some statutory provision, not found generally in our States, the preliminary examination is not necessary. 1 Bishop on Grim. Proed., Sec. 239a; Thompson and Merriani on Juries, Sec. 610.
    The motion to quash the indictment upon the ground that the investigation of the charge was still ponding before the committing magistrate when the indictment was found whs frivolous. The grand jury has jurisdiction to inquire of and pi'csenb all offences committed within the county. The People vs. George Horton, 4 Parker’s Grim. Rep., 223.
    The grand jury, acting under the obligation of their oaths, must determino, aseases are presented, whether they will or will not act upon them prior to an examination before a magistrate and while such examination ¡spending If it were otherwise, it is plain to see that justice might be often delayed, if not entHely defeated. The People vs. Peter Iloifernan, 3 Parker's Grim. Rep., 394.
   The opinion of the court was delivered by

Bermxtdez, C. J.

This is an application for a mandamus to compel the hearing and determining of a ease by the defendant.

The relators complain that they are detained in custody and restrained of their liberty without benefit of bail, on a complaint against them before the recorder, on oath, as accessories before and after the .fact to the murder of one Hennessey.

That their case was fixed for examination for the 28th of October past, but was there continued, without day, at the request of the District Attorney.

That, on the 7th of November following, the relators through counsel, moved to have their case fixed, heard and acted upon, but that the recorder declined to appoint a day.

That, under the Constitution and the laws, they are entitled to a speedy trial, and to have said case fixed, heard and determined.

They therefore pray that said recorder be commanded to fix, heax and dispose of said case according to law.

The return adznits the averments of fact, and sets forth that the respondent acted as charged for the reason that it was to his personal knowledge that the grand jury was investigating the matter.

In justification for this refusal it is contended that a preliminary examination before a committing magistrate is not a prerequisite to a prosecution for crime, and that, except by force of some statutory provision not found generally in our States, the preliminary examination is unnecessary.

It is also advanced that the grand jury, acting under the obligation of their oaths, must determine, as cases are presented, whether they will or not act upon them prior to an examination before a magistrate, and while such examination is pending, and that were it otherwise justice might be delayed and possibly defeated.

The legal propositions contended for by the District Attorney are well supported by authoritj''. They are not and can not be contested, but they have no bearing on the matter under consideration.

They would be applicable if there was no prosecution before the recorder, and if the accused had objected to the proceedings before the grand jury, but this they do not and can not do, because such prosecution exists and they do not thus object.

What the relators complain of is that the proceedings before the .grand jury are made to suspend those before the recorder, and they therefore claim that notwithstanding the fact that the jury may be investigating the charges against them, the recorder is bound to go on with the prosecution before him.

The relators claim that the recorder should so proceed, because of the provisions of Section 1010 of the Revised Statutes.

If that were the only legislation on the subject, the relators would not be entitled to relief, for the reason that under its very terms the investigation must be conducted by the District Judge; and not by the committing magistrate where he is nothing but a justice of the peace. See State ex rel. Stevens vs. Livaudais, Judge, 34 An. 52. This is so because justices of the peace, under Article 126 of the Constitution, have power to bail or discharge only in cases not .capital or necessarily punishable at hard labor.

In the case cited we said: “The sole object of a preliminary examination being to determine whether a party shall be discharged, bailed or held in custody, it would be absurd to have such examination held before a justice of the peace in cases in which those.magistrates would have no power to determine those questions.”

At all times the recorders of the city of New Orleans have been. considered as vested with powers more extensive than those conferred on justices of the peace clothed with criminal jurisdiction.

To place the subject beyond doubt, the Legislature in 1859, by Act 269, p. 210, specially provided that the several recorders for the city of New Orleans are authorized and required to take bail in all cases bailable under the Constitution and laws of the State.

The Act of 1868, No. 160, p. 205, which is Section 1010 of the Revised Statutes, and is a general statute, apparently designed to operate throughout the State, except in the city of New Orleans, did not propose to repeal the Act of 1859.

Act 95 of 1873 continued those powers in the police courts thereby created.

The Constitution of 1879 contains two articles, Nos. 126 and 136, bearing ón the subject. The former alludes to ordinary justices of the peace, as said in 34 An. 52; while the latter refers to police or magistrate’s courts, which the Legislature is authorized to provide for, and to vest with the jurisdiction of committing magistrates, free from the restrictions contained in Article 126.

Acting under that authority, the Legislature in 1882, gave a charter to the city of New Orleans, in which recorders, such as they had always existed, are recognized, and by which they are said to be vested with the jurisdiction of committing magistrates.

The custom has always been, in all cases, for the recorder to investigate the complaint, taking the testimony in writing, and almost invariably, except in palpably groundless accusations, to transmit the same to higher authority for further action. 5 An. 746.

It is clear that a complaint having been lodged and being pending before him, it is the duty of the recorder to proceed with the same as the law provides (Blackstone, Yol. 4, O. 22), unless the State prefers to discontinue it and leave the matter in the hands of the grand jury-

We therefore conclude that, as the proceedings before the grand jury do not have the effect of staying the prosecution before the recorder, it is his duty to proceed with the examination of the complaint.

While it is true that the refusal to find a true bill by the grand jury may put an end to the proceedings before the recorder, it is patent that whatever the action of the latter may be, it can not relieve the grand jury of their bounden duty and deprive them of their superior right to investigate and act upon the charges against the accused, nor to divest them of their power over the accused.

As long as the grand jury has not discharged the accused, or the State has not discontinued the prosecution before the recorder, the accused have a right to demand that the latter shall proceed to examine their case. Otherwise, the rights of the accused may be imperiled or destroyed, and the ends of justice frustrated.

While ruling as we do, we are not to be understood as saying, that although the recorder be bound to proceed with the ease before him, he shall have no authority, after the case shall have been fixed for examination, on a proper showing, in the exercise of a sound legal discretion, to allow a continuance for any other valid cause.

The application for relief is well founded and, being authorized by law,(it must be allowed.

It is therefore ordered and decreed that the mandamus asked be made peremptory, and, accordingly, that the respondent do fix and proceed, within reasonable delay, with the case of the State vs. The Relators, pending before him, in conformity with usage and law.


author: Breaux, J.

text:
    No. 10,694.
    The State ex rel. John Joseph vs. M. S. Bringier, Recorder.
    1. An ordinance of the City Council having-been violated, in which a mittimus is provided in default of lino, the terms of imprisonment must be limited to the terms of the ordinance.

      2. The Legislature authorized the City Council to lengthen the term of imprisonment; the law is permissive to the Council and is not an authority to the recorder to make the commitment for a longer time than provided in the ordinance.
    REPLICATION for Certiorari.

      T. J. Oilloly, for the Relator.
    Respondent in person.
   The opinion of the court was delivered by

Breaux, J.

The relator is confined in the parish prison of the city of New Orleans for violating Ordinance 3121, relating to offences and nuisances.

Section 2 of city ordinances reads:

“No person shall make a violent noise or create a disturbance or offences against public peace by intoxication or otherwise.” * *

Section 10: “Any person committing any of the offences or violating any of the provisions hereinbefore named shall be fined not less than five (5) nor more than twenty-five (25) dollars, and if the fine be not paid he shall be imprisoned for a term not exceeding ten days.”

He was committed for disturbing the public peace, to serve thirty days, and he was condemned to pay a fine of §25, and in default .of payment of the fine to remain thirty days additional in prison.

Relator petitions for a writ of certiorari, directing the recorder to send up to this court the record and all proceedings in the case, to the end that their validity may be determined. The respondent, in his return, in justification of the commitment, pleads Act 41 of 1890: “The ordinance limits the fine to the amount provided in the act.” There is no difference between the act and the ordinance, in so far as relates to the fine as imposed, and no question arises in so far ‘as relates to the fine, but there is a difference in the term of the imprisonment.

The ordinance directs an imprisonment of ten days j the statute limits the imprisonment to thirty days. Which shall govern?

If the statute is directed to the recorder, and is to be at once executed by him, it was properly enforced. If it is not, but is permissive, and authorizes the- Oity Council to lengthen the term of imprisonment to be applied when certain ordinances are violated, the latter should prevail.

Act 20 of 1882, Section V, authorizes the Oity Council to pass such ordinances and see to their faithful execution as may be necessary and proper to preserve the peace and good order of the city; also to provide for the punishment of any violation of such ordinances and regulations by fines and imprisonment or both.

The ordinances adopted by the Oity Council were authorized by this and preceding acts of the Legislature.

The policy and system to be followed in adopting ordinances with the view of maintaining municipal regulations have been left to the proper city authorities. They are given the power of subordinate legislation, and are generally authorized to order the imposition of 'fines and penalties within the limits prescribed by law.

The Act 41 of 1890 gives authority to and imposes a limitation on the City Council, but is not an authority direct to the magistrate to ■act. He is vested with jurisdiction to enforce municipal ordinances.

“The General Assembly may provide for police or magistrate’s •courts, but such courts shall not be vested with jurisdiction beyond the enforcement of municipal ordinances or as committing magistrate.” Cons., Art. 136.

He therefore enforces the ordinances of the city.

The law, Act 41 of 1890, is not self-operative, and does not for the purpose of its enforcement become a part of the municipal ordinances.

It makes it lawful for the city of New Orleans, through its Common Council, to change the term of imprisonment from ten to thirty days, but no authority is given to the officer to extend the term of the penalty of an ordinance he is called upon to enforce.

His warrant to act under the law is the ordinance of the City Council, and it is not possible for him legally to invoke Act 41 of the Legislature.

If the body of the act gives ground for discussion, the title makes the law sufficiently plain as to its object.

It reads: “ An act to authorize the city of New Orleans, through the several Recorders, to enforce obedience or to punish the violation of all ordinances passed by the Council thereof.”

Thus vesting the authority in the Council, and not in the Recorder directly.

“ To arrive at the meaning of a law, we are to weigh its terms and examine its preamble, if there be one, in order to judge of its provisions by its object and the whole context; and not to limit its interpretation to that, would appear different from its intention, either in a single portion of the law or in a single defective expression. We must prefer the' evident meaning of a whole law to the inconsistent meaning of a defective expression.” Potter’s Dwarris on Statutes and Constitutions, p. 140.

“ Every law shall embrace but one object, and that expressed in its title.” Const., Art. 29. The commitment was therefore null.

It.is ordered, adjudged and decreed that the writ of certiorari be made peremptory and all proceedings in execution of the conviction be set aside and the relator released.


text:
    No. 10,659.
    City of New Orleans vs. Louis Robira.
    Although the Constitution exempts from a license tax those who are engaged ill a mechanical pursuit, it docs not follow that a photographer comes within the immunity.
    Photography is a science; at least, a liberal art. A photographer is an artist who , practises an occupation in which the mind is chiefly concerned, the hands and body being less so.
    Legislative acts are entitled to great respect, and are presumed to be constitutional. To destroy the presumption, they must bo shown manifestly to violate the organic law. In this ease the ordinance and statute assailed are constitutional and valid.
    Those who seelr shelter under an exemption law must present a clear case, free from all doubt, as such laws, being in derogation of a general rule, must bo strictly construed. Plausible hesitation warrants an adverse finding.
    APPEAL from the Second City Court of Orleans. La Villebeuvre, J.

      W. B. Bommerville, Assistant City Attorney, and Carleton Hunt,. City Attorney, for Plaintiff and Appellant.

      Farrar, Jonas & Kruttschnitt for Defendant and Appellee.
   The opinion of the court was delivered by

Bermudez, C. J.

This is an action for the recovery of the amount of a license for the year 1889, under the provisions of a municipal ordinance, No. 3315, which levies it conformably to legislative authority. Act of 1886, Sec. 12, No. 101.

• The defence is that both the ordinance and the statute are unconstitutional and void, for the reason that the defendant is exempt from the payment of such license by the organic law.

He avers that by Article 206, which renders liable to such tax all persons who pursue any trade, profession, business or calling, those engaged in mechanical and other named pursuits are exempt.

Specifically, he contends that, as he is a photographer engaged in a mechanical pursuit, he is exempt from such license.

Two questions are to be considered:

1. Whether the words “ engaged in mechanical pursuits ” have the meaning which he places on them.

2. Whether the pursuit of the defendant comes within the constitutional purview.

I.

The object of the framers of the organic law was, primarily, to render liable to a license tax all persons, associations of persons, and corporations pursuing any trade, profession, business or calling; but they at once perceived that unless some restriction or qualification was provided for, many would be subjected to the burden who should not be so equitably, as being worthy of special encouragement and protection. Hence, they excepted from the operation of the clause: clerks, laborers, clergymen, school teachers, those engaged in mechanical, agricultural and mining pursuits, and a certain class of manufacturers.

Strictly, the language invoked means the following of an occupation by one who performs acts which are purely mechanical, that is, which could be done by a machine or a regulated physical agent of power.

The term mechanical is employed to indicate that the business, calling, or occupation in view must be one which can not be utilized, unless resort is had to the use of some machinery, or instrument of force, or application of power, in aid of manual work, in some physical undertaking, in which the intervention or interaction of a superior mind is not required; in other words, the expression means that the occupation must be one by which the object realized is not dependent for its confection on the exertion of a controlling intellect, but rather on the adaptation of some helping mechanism, or-use of some auxiliary tool or instrument.

On twp occasions this court was called upon to ascertain the constitutional purpose and meaning of those terms.

In N. O. vs. Bayley, 35 An. 545, it held that one who was a, plasterer and employed others of the same class was engaged in a mechanical pursuit, and declared him dispensed from the payment of a license.

In the quite recent case of Theobald vs. Connor, 42 An. —, the court said that the framers of the article intended to relieve from license those 'who are engaged from day to day in the performance of manual labor, and thus in mechanical pursuits.

The purpose in view seems clearly to have been to exonerate those who in the pursuit, mechanical to be, would exert more manual labor than intellectual labor, so that the occupation was to be one for the practice of which the efforts of the body, aided by some mechanical instrument, would be mainly called into activity, to be controlled by an ordinary intelligence only.

II.

In the instant case the defendant is a photographer, that is, a person who makes pictures by means of photography.

Photography is defined as “the science which relates to the action of the light on sensitive bodies, in the production of pictures by the fixation of images and the like.” Webster Unab. Diet.

It is also said to be “the art of producing images of objects by an application of chemical change produced in certain substances by the action of light or more generally by radiant energy.” The Century Dictionary.

A polite or liberal art is that in which the mind or imagination is chiefly concerned, as poetry, music and painting.

A useful or mechanical art is that in which the hands and body are more concerned than the brain.

A painter is defined to be one who represents the appearance of natural or other objects on a surface by means of colors.

There may, and surely there does, exist a marked and honorable 'difference between a painter and a photographer, though they both be artists, as more dexterity is required in the former than in the latter. Some painters enjoy a celebrity to which photographers can not aspire.

Certainly, in both, painters and photographers, the hand and the sense of sight are controlled by an unusual exertion of a superior intellect which, to direct and accomplish properly, must be distinguished and actuated by rare knowledge, ability aiid practice not found in or acquired by first comers.

The record contains an elaborate statement or scientific description of the various processes followed in the making of pictures by photography.

They may be or not correct, and they may not be the only ones; but as the statement or description was satisfactory to the parties, and was acted upon by the lower court, it may be taken as a proper exposition of the matter.

■ It covers more than two long pages, and might have been still more detailed.

It is impossible to read it and give the matter a moment’s reflection without remaining under the irresistible impression that quite exceptional knowledge and skill are required to understand the apparatus and the modus operandi, and to operate with it and its accessories.- It takes special aptitudes to understand all that has to be known regarding the camera, the lenses, the adjusting screws, the sensitized plates, the posing of the subject, the arrangement of the light, the adjustment of the camera, the insertion of the plate holder, the exposure of the plate, the reflection of the rays of light on the subject, the concentration of the lenses to a, focus on the plate, the chemical changes in the substance spread on the plate, the resulting image, the subsequent transfer of the plate to the dark, chamber, for developmentand fixation by chemical process.

It appears that after the development o'f the image the plate is left to dry, and a proof print is made and submitted for approval. It is next varnished and retouched with a metallic pencil to remove the hard lines, subdue the shadows and make the picture a pleasant one.

The printing is made on prepared and sensitized paper by exposing the plate in contact to the strong rays of the sun.

The photographer sensitizes the paper himself by placing the albuminized side in contact with a solution of nitrate of silver. Then the paper is dried and exposed in a close receptacle to the fumes of ammonia, and cut to the required size.

When the printing is completed, the printings are washed and chemically treated, so as to fix the printed image on them. The prints are next pasted on cards of the proper size and thicKness, and the picture is mounted!

It is afterward dried and lubricated with a mixture, and passed through the burnishing machine, consisting in a pair of heated iron rollers, which subject the picture to pressure, after which it is ready for delivery.

It is worthy of note that it is not pretended that all this is accomplished by the spontaneous action of the apparatus, for evidently the process can be and is actually gone through only by the agency of the photographer, who, to operate successfully, must necessarily be and prove himself a most intelligent artist, calling into activity not only his hands, senses and body, but also and chiefly, in order to control them, his scientific aptitude and superintending mind.

It strikes common sense that the defendant is not an automaton, but one who, practising a science or a liberal art, is a scientist or an artist, although of an inferior grade.

The science or art which he practises is not a useful or mechanical science or art, but, at least, a liberal or polite art — scientific to a quite considerable extent, the practice of which is made efficient and valuable only by knowledge and skill, as the result of some science, observation, combination and experimentation not readily acquired.

It is to be observed that the act of the Legislature taxes “photographers'” expressly. It must therefore be inferred that the General Assembly did not consider them as coming within the constitutional exception.

The acts of a Legislature are to be treated with great respect, as they emanate from a coordinate and powerful branch of government. They must be presumed to be constitutional, unless they be shown manifestly to have transgressed or violated the organic law. In this case the presumption, far from having been destroyed, has been established as well founded.

It may be added that it is universally settled that exemption laws, being in derogation of a general rule, must be strictly construed; that whoever claims shelter under them must prove himself clearly entitled to the immunity, and that in such cases doubt is fatal. Plausible hesitation warrants an adverse finding.

We therefore conclude that neither the ordinance nor the statute are violative of the Constitution, and that the defendant, not being engaged in a mechanical pursuit, is not entitled bo the exemption claimed.

It is therefore ordered and decreed that the judgment appealed from be reversed, and it is now ordered and decreed that the plaintiff, the City of New Orleans, recover of the defendant, Louis Robira, the amount of the license sued for, twenty-five ($25) dollars, with the interest claimed, and costs in both courts, with the lien allowed by law.


text:
    No. 10,627.
    The Ivens & Son Machine Company vs. C. H. Parker, Tax Collector.

      h'rom the fact that the Constitution Article 207 exempts for a time the capital, machinery and other property employed in the manufacture of machinery, etc., it does not follow that merchandise and cash assessed, and not affirmatively shown to have been thus employed, enjoy the immunity.
    Exemption is an exceptional privilege which must be unequivocally established. Exemption laws are strictly interpreted.
    A PPEAL from the Pirst City Court of New Orleans. Price, J.

      Rov,se & Grant for Plaintiff and Appellant.

      Wynne Rogers for Defendant and Appellee.
   The opinion of the court was delivered by

Bermudez, C. J.

This is an injunction suit. Its object was to prevent the sale of certain effects belonging to the plaintiffs, seized to satisfy a tax assessed for the year 1888, upon merchandise valued at $10,000 and cash $1000.

The ground upon which the resistance to the sale is based is that under Article 207 of the Constitution the capital^ machinery and other property of the company employed in the manufacture of machinery and agricultural implements are exempt from taxation.

Prom a judgment dissolving the injunction, with damages, this appeal is taken.

There is in the transcript a statement of facts, prepared by counsel for plaintiffs, upon which the case was tried below.

Conceding that under this statement the company is in reality one of those contemplated by the Constitution, there is nothing to show that the merchandise and cash assessed were employed in the manufacture of machinery, etc.

It is not any capital, any machinery, any property, belonging to the corporation that is entitled to the immunity, but only such as is employed in the manufacture of machinery, etc.

The corporation may have other capital, machinery and property not so employed,, which would be assessable.

Exemption from taxation is an exceptional privilege which must be clearly and unequivocally established affirmatively. Exemption laws are always strictly interpreted and applied. Doubt is fatal.

We find no necessity to refer to authorities in support of these views, which rest on elementary principles.

Judgment affirmed.


author: Renner, J.

text:
    No. 10,684.
    The State ex rel. Forsythe and Robertson vs. Judge of the Seventh Judicial District Court.
    1. Tlic Constitution o£ the State has not given the Legislature unlimited discretion in the matter of creating new parishes or changing the boundaries of existing parishes, but lias imposed important limitations on the legislative power in these respects and on the methods of exercising the same.
    2. These limitations are intended as a protection to the rights of existing parishes and the people thereof, who have the right to oppose the execution of legislative acts passed in violation thereof, and to invoke the aid of the judicial department.
    3. Injunction against persons proceeding under the authority and in execution of such acts is not only the proper, but the only effective remedy, because if parties wait until the act has been fully executed and the new parish organized, it is then too late to invoke judicial aid.
    4. The entertaining of a suit for injunction and the granting of the injunction in such a case arc not ultra rires of 'judicial power; and errors therein and in other proceedings in such cases do not give rise to the exorcise of oursuper- ' visory jurisdiction, but must abide determination in ordinary course.
    ^PPLICATION for Mandamus and Prohibition.

      Luce & Lemle for the Relator.

      F. P. Poehé, H. B. Taliaferro, J. F. Ellis, Thos. R. Smith and D. N. Thompson for the Respondent.
   The opinion of the court was delivered by

Renner, J.

Tn 1890 the General Assembly passed Act 10.7, entitled “An act to create the parish of Troy, and to provide for the organization thereof.”

The said proposed new parish is created exclusively out of the territory of the existing parish of Catahoula.

The 14th Section of the act provided for an enumeration of the inhabitants of the proposed new parish and of the parish' of Catahoula as it would be constituted after the creation of the former, said enumeration to be made by certain designated persons; and directed that said enumeration when made should be returned to the Secretary of State, and that in case said enumeration should show that each of said districts of territory contained 7000 or more inhabitants, then that the Governor should issue his. proclamation declaring the parish of Troy created and order an election ©f officers therefor.

After the promulgation of the act, the police jury of the parish of Catahoula, joined by certain property holders and tax payers of said parish, instituted an action in the Seventh Judicial District Court for an injunction restraining the persons named as enumerators from making or causing to be made said enumeration, or any return thereof, or in any manner attempting to carry out the provisions of said act; and for-a final judgment decreeing said act to be unconstitutional, null and void, and'perpetuating the injunction.

The respondent judge issued a preliminary writ of injunction as prayed for.

Thereupon the defendants in said suit appeared, and moved to dissolve said injunction on the face of the papers on various grounds, of which one was that it was premature and improvidently issued.

After due hearing, the judge rendered and signed a judgment rescinding and setting aside the injunction.

The plaintiffs then applied for and obtained a suspensive appeal from said judgment, returnable according to law at the next term of this court at Monroe, which appeal has been perfected by full compliance with all requirements of law.

The defendants now appear as relators herein, and invoke the exercise of the supervisory jurisdiction of this court by means of the writs of mandamus and prohibition.

The grounds upon which this relief is asked do not assail the jurisdiction .of respondent’s particular court either ratione personse or vatione materise; they rest on the broad predicate that the subject matter of the injunction suit lies outside the domain of the judicial . power, and that no court has the right to restrain by injunction the execution of an act of the Legislature of the character of the one here in controversy.

We can by no means concede the correctness of this broad proposition.'

The Constitution of the State has not invested the Legislature with unlimited discretion in the matter of creating new parishes and' of changing the boundaries of existing parishes. On the contrary, it devotes a special title to the subjectof “parochial affairs and boundaries,” wherein it imposes important limitations upon the legislative power in these respects and on the methods of exercising the same.

These provisions were undoubtedly intended as a protection of the rights of existing parishes and of the inhabitants thereof against encroachment by any legislative action not taken in strict conformity with their requirements.

The plaintiffs in the suit below, being the police jury of the parish of Catahoula and certain citizens and tax payers, averred that the Act No. 107 of 1890, which proposed to dismember its territory, change its boundaries and to create a new parish, is in violation of the constitutional provisions above referred to in several particulars specifically set forth, and, if carried into effect, will inflict upon them pecuniary damage exceeding $2000, and will otherwise do them an irreparable injury. They further averred that the defendants, acting exclusively under authority of said unconstitutional law, were about to take the first and fundamental step in execution thereof by making the enumeration provided thereby, and to return the same to the Secretary of State, and that if the said enumeration should show the necessary inhabitants, the Governor would, under the terms of the law, proceed to carry it into execution. On these grounds they asked for an injunction restraining the defendants from proceeding in execution of said act, and for a decree declaring the same to be unconstitutional, null and void.

Does such a pleading state a case or ask relief outside the domain of judicial cognizance or power? We think not.

A strikingly analogous ease arose before the Supreme Court of Tennessee, in which an injunction was applied for to restrain the proceeding of commissioners appointed to execute an act of the Legislature creating a new county, which was claimed to be in violation of the Constitution. The court maintained the right to the injunction, and used language fully applicable to the present case: ‘ ‘ The convention of the State, which formed the Constitution, thought proper to place restrictions on the power of the Legislature to create new counties; and of consequence, any attempt to do so, contrary to the restrictions, is a void exercise of power, which can and must 'be stopped by the judicial power of the State. There is no other-place to which an appeal can be made, and, if the courts can not interfere, the Constitution, if violated, is a dead letter.” Bradley vs. Commissioners, 2 Humph. 428.

This seems to us to be sound law, the recognition of which is ■absolutely essential to the maintenance of constitutional government, it covers not only the right of action, but also the specific relief by injunction, and its propriety in the incipient steps for the execution •of the act; for the court well said, in discussing the alternative vemedy by quo warranto: “The writ of quo warranto is not a prohibitive writ; and before the question arising under it could be determined much mischief could and would be done by the organization of the county, the thing sought to be prevented; and no •subsequent action of the court could by any possibility place the parties concerned in their original, uninjured condition. * * * If the establishment of the county be unauthorized, its organization ought to be prevented.”

• Indeed, in a subsequent case, where the complainants stood by and suffered the unconstitutional act to be executed by the complete organization of the new county, and then sought relief by proceedings to annuli the organization, the same court declined relief, saying: -“The prohibition of an act and the undoing of it after it has -been performed are very different things. * * * As long as the organization of the county is in fieri, the court has power over the •commissioners appointed by the invalid act, and may prohibit them from the exercise of the authority illegally imposed on them-by it; but the moment the power is executed and the county organized in pursuance of the statute, that moment the connection of the commissioners with the transaction ceases; they become, if the expression be legitimate, funeti officio, and the county becomes, under the statute, a political corporation of the State, and a court of chancery has no power to inquire into the validity of the act, and, as we apprehend, a court of law neither.” Ford vs. Farmer et al., 9 Humph. 152.

We unhesitatingly approve the doctrine of these decisions, at least as applied to laws of this character, without, however, extending it to laws in general, of which there are doubtless many, the execution, of .which could not be restrained by injunction of this character.

It follows, therefore, that an injunction at some stage of the preliminary proceedings in execution of this act is not merely the appropriate, but the only effective, remedy, open to parties injured thereby.

Relators, however, vigorously contend that the particular acts, covered by this injunction, viz: the enumeration of the inhabitants- and the return thereof to the Secretary of State, are matters of unquestionable legislative discretion and control, and that the courts-are powerless to interfere therewith. This position is specious, but not solid. The act of the Legislature, as appears from its title, -has no other object except “to create the parish of Troy and to provide-for the organization thereof.” The enumeration directed therein has no motive, purpose or meaning except as a step in the proceedings provided for the creation of the said parish. At what stage of these proceedings are the plaintiffs to exercise their right to proceed by injunction? If they wait until the enumeration is made and' returned, then if it exhibits the required" population, the act makes, it the duty of the Governor “to issue his proclamation declaring the-parish of Troy created, and to order an election of officers,” etc.. Are the plaintiffs to enjoin the Governor from issuing his proclamation and order? Or should they wait and enjoin the election? Or-should they wait still longer and enjoin the officers elected? It is obvious that whatever be the objections urged against the present injunction, much more serious ones would lie against any of the others.

The plain common sense of ■ the matter is that the injunction at the first stage of the proceedings, preventing their initiation, is the most simple, direct and efficacious remedy, and the one most in the interest of all parties concerned, in order that the vexed question-may be settled before expense and trouble, which may prove useless, are incurred.

- Relators further say that the injunction is, at all events, premature, because non constat that the enumeration will exhibit the num— ber of inhabitants required as a basis for any further action, in which •ease the plaintiffs could suffer no injury. To this position there are two answers:

1. It goes to the merits of the injunction, and not to the power of the court, and therefore has no place in this proceeding.

2. If such an anticipation should be correct, the injunction will have been nothing but a benefit to relators.

The foregoing considerations fully dispose of relators’ pretensions to relief, under our supervisory powers, on the ground that the injunction was, in its incipieney, ultra, vires of judicial power, and that all proceedings having effect, directly or indirectly, to give it effect or keep it in force should be vacated and annulled. If we had found such to be the case, we might have overcome the technical, objections urged against the particular forms of proceeding in which our supervisory jurisdiction was invoked. If we held that the injunction originally issued was beyond the domain of judicial power, we should have been very loth to permit it to remain for an instant in force under the effect of a suspensive appeal from the judgment •dissolving the same.

But holding, as we do, that the respondent judge in all his proceedings has not transcended the bounds of his jurisdiction or of judicial power, ail complaints of error therein must abide determination in ordinary course. This fully covers the application under the mandamus to vacate the order granting the suspensive appeal. That order was one clearly within the range of the judge’s powers, and our jurisprudence is uniform that he not only can not be compelled to vacate it, but that he has. no power to do so, except in cases where the order was manifestly improvident, as when the application had been made after the expiration of the delays required by law, or the like. 6 N. S. 463, Williams vs. Chew; 7 La. 416, Bridges vs. Merle; 9 La. 44, Executors vs. Babrock; 11 La. 198, Laville vs. Rightor; 15 La. 385, Ailing vs. Beamiss; 19 La. 167, State vs. Judge; 1 Rob. 527, Potier vs. Harman; 10 Rob. 419, Harbour vs. Brickel; 8 An. 434, State vs. Judge; 24 An. 598, State ex rel. Graham vs. Judge; 25 An. 622, State ex rel. vs. Judge; 27 An. 684, State ex rel. Ribet vs. Judge; 36 An. 192, State ex rel. Irwin vs. Judge; 39 An. 774, State ex rel. R. R. Co. vs. Judge.

The clear remedy of relators is on motion to dismiss in proper season, for. which we can not substitute a mandamus to vacate: State ex rel. Dodeman vs. Judge, 14 An. 60.

We wish it distinctly understood that we have not even hinted amt-opinion on the unconstitutionality vel non of the legislative act, ox-on any other question involved in the proceedings or in the merits-of the case, except the single one that the judge has not exceeded the bounds of his jurisdiction or judicial power.

It is therefore ordered and decreed that the restraining order-herein issued be set aside, and that the relief prayed for be denied..


author: Fenner., J.

text:
    No. 10,630.
    The State of Louisiana vs. A. Boneil.
    1. Constitutional provisions and forms of proceeding relating to crimes denounced by the public criminal statutes of the State do not apply to violations, of mero municipal ordinances, save to a very qualified extent.
    2. The city of Now Orleans, even prior to Act 41 of 1890, possessed power to enforce* her ordinances by fine or by imprisonment in default of payment within the* limits fixed by law,; and when the penalty defined in the ordinance is within*, said limits, the recorders of the city arc bound to observe the same, and can neither extend nor diminish them.
    3. Any scheme for the distribution of prizes by lot or chance, by which one, on paying money to another, obtains a token which entitles him to receive a largexvalue or nothing, as some formula of chance may determine, is a lottery, ancX the sale of such “token” is a violation of the city ordinance prohibiting the. same.
    APPEAL from the Second Recorder’s Court of New Orleans. Dreux, J.

      T. Mg. O. Hyman, Assistant City Attorney, and Garleton Hunt, Gitjr Attorney, for Plaintiff and Appellee.

      IAonel Adams for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner., J.

Defendant was prosecuted under City Ordinance No-92, C. S., which reads as follows:

íl 1. That it shall be unlawful for any person or persons to sell-. barter, exchange, or otherwise dispose of any lottery ticket, or token, policy, combination, device or certificate, or fractional part thereof, in any lottery drawn or to be drawn in or out of the City of New Orleans, unless the same be duly authorized by the laws of the State of Louisiana.

“ That any person or persons violating the provisions of this ordinance shall, upon conviction before the recorder within whose jurisdiction the offence was committed, be condemned by said recorder to pay a fine of $25 for each offence, and in default of payment to imprisonment for not less than twenty nor more than thirty days.”'

The charge as set forth in the affidavit is that on~a given day in a given month, in the year 1890, “ at about 8 o’clock P. M., at the corner of Claiborne and Mandeville streets, within the jurisdiction of this court, one A. Boniel did then and there wilfully and unlawfully violate C. O. 92 C. S. in this, to-wit: By selling illegal prize packages of tea.”

The evidence is substantially: The business of the defendant is. conducted in the following manner: Upon a counter, behind which he stands with his clerks, are placed a large number of sealed envelopes, containing what he terms “ Enterprise Tea,” of the value-of five cents. In addition to the tea some of these envelopes contain a ticket naming and entitling the holder to some article or other,, such, for example, as a silk hankerchief, a little lard, a turkey, a chicken, etc., and called “ prizes ” by the witnesses. Other envelopes contain nothing but the ‘ ‘ Enterprise Tea, ’ ’ and these are termed “blanks” by the witnesses. The purchaser, upon the payment of five cents, is at liberty to select an envelope from any of the lots exposed upon the counter; and if the envelope contains besides the-tea a ticket, the holder of the ticket is entitled to the article mentioned upon it, and the article, which is the prize, is handed the purchaser and holder by defendant.

Against further proceedings before the recorder in the prosecution of defendant because of the matters against him in the said1 affidavits presented and charged, these objections were urged:

1. That no offence is set out in the affidavit.

2. That the ordinance is unconstitutional in that it undertakes, by arbitrarily fixing the penalty, to deprive the recorder of the discretionary power vested in him by a statute of the State.

3. That the facts proven amount to no offence, as the ordinance is ■only leveled at the conduct of lotteries to be drawn in the city of New Orleans or elsewhere.

4. That there is no law upon the statute -books (April, 1890) authorizing the' city of New Orleans to impose imprisonment for the violation of an ordinance in default of the payment of the fine imposed. Transcript, pp. 8, 9.

He was sentenced on each affidavit to pay a fine of $25, and in default of payment to imprisonment for twenty days, from which he prosecutes the present appeal.

We shall consider his objections seriatim.

1. He was charged with violating Ordinance 92 “by selling illegal prize packages of tea.” The time, place and date of the act complained of are specified, and we think the charge sufficiently advised ■defendant of the offence and the nature thereof. Violations of municipal ordinances are not usually or properly regarded as crimes, .in the sense in which that word is commonly used, which embraces ■only offences against the public criminal statutes of the State, and the laws regulating forms of proceeding and the constitutional provisions relating to the latter do not generally apply to the former. State vs. Henchert, 42 An. 270; Mener vs. Monroe, 35 An. 1192; 1 Dillon Munc. Corp., Sec. 432, et seq.

2. The next objection is that the ordinance violates- Section 12 of ■the Act No. 131 of 1877, which declares: “That the said recorders (of New Orleans) shall have power and authority to enforce all ordinances of the city of New Orleans, and shall have power for violation of the same to impose fines not to exceed $25 for each offence, and in default of payment to sentence the party fined to imprisonment for not more than thirty days.”

The complaint is that this statute was intended to vest recorders with discretion as to the penalty, within the limits fixed, regardless of the penalty fixed by the ordinance, and that the ordinance, in fixing a penalty even within those limits, deprives the recorder of his discretion and is thus illegal. We think it very clear that the statute quoted conferred upon recorders, primarily, the power to enforce all city ordinances, and only secondarily limited the penalties which they should have power to impose. If the ordinance did not prescribe ■the. measure of the penalty, then perhaps the recorder might, in his discretion, fix the penalty within the limits prescribed; but if the ordinance itself fixes the penalty not exceeding the limits referred to, then the recorder must enforce the ordinance, and can not himself violate the same by imposing a greater or a less penalty.

The city of New Orleans has always had authority to enforce her legal ordinances by the imposition of 'fines and by imprisonment in default of payment. Such power was expresely granted in the charter of 1870. Act 7, Ex. Sess. 1870, Sec. 12. That section authorized fines not exceeding $100, and in case of non-payment imprisonment not exceeding thirty days. The enforcement of such ordinances could only be claimed before the recorders of the city. When in Act No. 131 of 1877 the Legislature limited the power of recorders to imposing fines not exceeding $25, the practical effect was to limit to the same extent the power of the city, because she could not collect a fine exceeding $25.

Therefore, prior to the passage of the city charter, the law was that the city had the right, through her recorders, to enforce her ordinances by fines not exceeding $25, and in case of non-payment, by imprisonment not exceeding thirty days. Nothing in the city charter of 1882 is in conflict or inconsistent with these prior statutes, and the law then existing was not repealed or affected thereby. State vs. Natal, 39 An. 439.

The sufficiency of these prior statutes was no doubt the reason why it was deemed unnecessary to embody their provisions in the new charter of 1882.

The Act No. 41 of 1890 has not, in our opinion, changed the prior law on this subject, except in so far as it authorizes both fine and imprisonment. It was passed after the decision of the court below in this case, and was, no doubt, framed to silence for the future such objections as those here urged.

We are clearly of the opinion that the city had authority to fix the penalty in her ordinance, and that the recorder only performed his duty in sentencing defendant accordingly. State ex rel. Joseph vs. Recorder, 42 An.

3. The business of defendant, as exhibited by the evidence, was undoubtedly a violation of the ordinance.

A lottery is a distribution Of prizes and blanks by chance; a game of hazard, in which small sums are ventured for the chance of obtaining a larger value, either in money or in other articles.” .Worcester’s Die.

“ A scheme for the distribution of prizes by lot or chance.” Webster’s Die.

“ Any scheme whereby one, on paying money or other valuable thing to another, becomes entitled to receive from him such a return in value or nothing, as some formula of chance may determine.” Bishop Stat. Cr., Sec. 952.

These definitions completely cover the offence proved against defendant. Frequent judicial interpretation confirms this view. A case arose in Illinois identical with the instant one. The defendant was conducting what he termed a “gift sale” establishment. He kept upon his desk a box filled with envelopes, purporting to contain valuable recipes and popular songs, and also a card descriptive of some one of various articles of different values. . The price of the envelopes was 25 cents, and the purchaser had the right to buy for §1 the article described on his ticket, which might be worth hundreds of dollars or very little. This scheme was held to be a lottery, and the sale of the envelopes to be the sale of a “lottery ticket” within the terms of the statute. Dunn vs. People, 40 Ill. 465.

In another case the defendant sold, at 5 cents each, packages of “prize candy,” some of which contained coupons entitling the purchaser to' a small sum of money on presentation at the counter. Held, to be the “setting up of a lottery” prohibited by the statute. State ex rel. Reaslez vs. Sheriff, 10 Phila. 203.

In another, defendant sold “ prize candy” in boxes for 50 cents, each box represented to contain a prize of money or jewelry of large or small value, the purchaser selecting his box in ignorance of its contents. Held, to be a “lottery device” forbidden by the statute. Holloman vs. State, 2 Texas App. 610; see also Chavannah vs. State, 49 Ala. 396; Com. vs. Wright, 137 Mass. 250; Negley vs. Devlin, 12 Abb. Pr. (N. Y.) 210; Hull vs. Ruggles, 65 Barb. 432; State vs. Clark, 33 N. H. 329; State vs. Bryant, 74 N. C. 583.

4. The last objection of defendant is disposed of by what we said under the second. Power given to the city to enforce her ordinances by fines, if unattended with power to imprison in default of payment, would be in most cases nugatory, since the impecunious. criminal would regard such a penalty as a delicious joke, and snap Ms fingers in the face of impotent justice. While this would not justify us in recognizing the existence of a power not granted, however necessary, it lends force to our construction of the statutes on the subject.

Judgment affirmed.


text:
    No. 10,461.
    The State ex rel. Jefferson City Gas Light Company vs. The Mayor and Council of The City of New Orleans.
    This caso presents questions of fact only. Tlierelatorseehs by mandamus to compel the City Cotmcil to raise its budget appropriation from $30,000 to $55,000, to cover additional compensation claimed by it of $12,350 for a deficit in 1888, and of $12,650 on a shortage in 1889, for gas lighting on the streets of the sixth and seventh municipal districts of the city of New Orleans. Held, that the relator must malre satisfactory proof of the gas lamps having been erected on the streets unnamed in the municipal contract of 1868 by municipal authority, otherwise mandamus will be refused.
    PPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.

      T. J. Semmes & Legendre and Frank N. Butler for the Relator and Appellant.

      Sam’l L. Gilmore for the Respondent and Appellee.
   The opinion of the qpurt was delivered by

Watkins, J.

This suit is a supplement to one of same title recently decided by us. 40 An. 91.

The gas company, asserting rights under alleged contracts, entered into in 1867, 1868 and 1870, with the municipalities of Jefferson City and Carrollton for street lighting with illuminating gas, seek by man-' damns to coerce respondent’s recognition and performance of them on the grounds:

1. That these municipalities were consolidated with and incorporated into the City of New Orleans by means of legislative enaet-ments, and that she assumed all of their duties, obligations and contracts.

2. That the City of New Orleans has frequently, since said legislative consolidation, recognized said contracts and admitted the binding force thereof, by enacting ordinances directing the payment of monthly allowances in favor of the relator.

It complains of the inadequacy of the $30,000 appropriated in the city budget of 1889 in its favor, and demands that there be appropriated the sum (1) of $42,900, or $50 each for 858 lamps; and (2) the sum of $12,350 to pay the contract price of 247 lamps, which were erected and lighted during the year 1888; and within the terms of a reservation in our former opinion. The increased amount demanded is $25,000 — on the deficit in 1888, $12,350, and on the shortage in 1889, $12,650. /

The answer of the respondents is practically a general denial.

There was judgment rejecting the relator’s demand, and it has appealed.

In the previous litigation the same contracts were relied upon, examined and construed; and we held that the rights which the company acquired prior to the consolidation of Jefferson and Carrollton with the City of New Orleans were unassailable, and that the concurrent obligations of the contracts have not been and could not be impaired by legislative or municipal provision.

In this connection we said: “We have carefully examined the contracts, the act of incorporation, the legislative statutes, the municipal resolutions and ordinances and the evidence adduced, and have realized that although under the resolution of April 27, 1868, of the Council of Jefferson City, the company be entitled to recover $50 per annum, for each of the gas lamps used on the streets therein named, it can not demand more than $45 per annum under the original contract of April 24, 1867, for each of the other lamps erected and used in Jefferson City; and thus it could do only where the same have been put up under municipal direction.”

We then proceeded to state that no stipulation to the contrary is found in the contract made with the city of Carrollton in 1871, nor in the legislative act of 1868, which recites both the contracts of 1867 and 1868, and the company’s act of incorporation.

That legislative enactment we held to be a confirmatory statute pure and simple. "We then declare that:

“While under a formal admission in the record it appears that 563 lamps only have been placed on the streets named in the resolution of 1868, there is nothing to show that the remaining 247 lamps, which -are not on the streets of Jefferson City, have been raised or lit at the instance of either of the cities (of Carrollton or Jefferson), or the City of New Orleans, beyond an ordinance of October 5, 1882, authorizing the company to lay pipes and put up lamps in the sixth district, and an agreement to pay for the use of gas in 1886 and 1887 at $37.50 per annum for each of the 765 lamps then in existence.

“There is no proof to show how many lamps had been raised and were being used on other streets at the bringing of this suit, and what agreement, if any, was ever entered into in relation to the lamps on streets not named.”

The court then recognized relator’s claim “for 563 lamps on those streets named in the resolution of 1868,” and reserved its right “to more, for lamps put up on other unnamed streets,” for future consideration.

In the decree in that case relator was allowed an appropriation of $28,150, or $50 each for the 563 lamps erected and in use in 1888 on the streets named in the resolution of 1868, and no more.

The budget appropriation for 1889 is only a little in excess of that allowance, and was presumably intended to provide for the same expense.

It is therefore apparent that in the present suit there is but one litigated question, and that is the same one that in the last suit was remitted to future consideration, i. e., the company’s claim for compensation “for lamps put up on other unnamed streets,” which were not designated in the resolution of 1868.

. Therefore, inasmuch as we held in the case cited that the company could not legally demand and recover compensation for such lamps as had been erected “on unnamed streets,” unless it could adminis-r ter proof of same having been “put up under municipal direction;” and, inasmuch as we held further that there was no proof to show how many lamps had been raised on unnamed streets, and what agreement, if any, was ever entered into in relation thereto, it follows necessarily that the relator was under obligation to supply the wanted evidence, otherwise it could not recover. We must consequently examine the record, and determine whether it has dis-' charged that duty.

An attentive examination of the record, and the various exhibits' annexed, discloses that during the years 1878, 1880 and 1882 various ordinances were adopted by the Oity Council authorizing lamps tobé erected on different streets in the sixth and seventh districts of-the city.

That the relator during a great many years, embracing the years ■1870 to 1880, inclusively, rendered to the City Council monthly bills-for gas lighting in the sixth and seventh municipal districts; and-these bills were examined and approved by the Administrator of Police, and appropriations made therefor.

But the only proof of the ordinances having been carried into, effect by the actual erection of gas lamps as contemplated therein is the parol testimony of the president of the company, which is to the effect ‘ ‘that never at any time was a pipe laid or a lamp erected by the Jefferson City Gas Light Company until the company was ordered to do so by the Administrator of Police of the city of New Orleans. That not only were the pipes laid and the lamps erected under express, written instructions from that officer, but that in every instance the said Administrator accompanied him in the inspection of the work thus ordered and done, and accepted the same from the company for the city of New Orleans.” Relator’s Brief, p. 14.

This testimony fails in one essential particular, and that is, as to the number of lamps which were erected by express municipal direction, and the names of the streets on which they were so erected. This infotmation is absolutely essential in such a proceeding as this. The number of lamps is of the essence of relator’s claim, and the streets on which the lamps enumerated were thus erected, is just as necessary a part of the information upon which we must act, because we could not otherwise determine whether the existing appropriation of $30,000 should be increased, as it covers the amount due relator for gas lighting on the streets that are designated in the contracts of 1867, 1868 and 1870.

Nor does an examination of the monthly allowances and the ordinances making appropriations therefor furnish the needful information. For instance, the ordinance of October 13, 1870, makes an allowance for only 212 lamps. That for November of that year, for 233. That for February, 1871, for 269 lamps. . That for July, 1871,. for 330 lamps. That for August; 348 lamps. That for February, 1873, for 511 lamps. That for February, 1874, for 528 lamps. The highest number appropriated for in 1874, or 1875, or 1876, was 628; and the highest number thereafter appropriated for was 710. But this evidence is inadequate. It leads to the supposition that the council was satisfied with the showing made. But these were ex parte and extrajudicial proceedings, and the appropriations were made, in all likelihood, as a matter of course. Surely they can have no conclusive weight or force as evidence in a mandamus proceeding, and Wherein the City Council and the' Mayor are making a spirited resistance.

On a careful examination of the record and evidence, we feel justified in rejecting the relator’s demand, as did the judge a quo-. Construing it as one of non-suit, the judgment of the lower court is affirmed.