author: Todd, J. Fenner, J.

text:
    No. 7924.
    W. L. Wooton vs. Alcée Le Blanc.
    On Motion to Dismiss.
    Tliis being a case in wliicli the right of office is involved, the Appeal should have been made returnable in ten days from the rendition of judgment by the Court below.
    Our jurisprudence is settled on this point, that when the appellant suggests an improper return-day, which is adopted by the Judge in the Order of appeal, it is an error imputable to the former and not to the latter, and the Appeal should be dismissed.
    APPEAL from the Twenty-Fourth Judicial District Court, parish of St. Bernard. Livaudais, J.
    Robert Mott and Branch K. Miller for Plaintiff and Appellee.
    Henry Chiapella, John S. Tully, and R. T. Beauregard for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

Plaintiff, as Inspector of Live Stock of the Crescent-City Live-Stock Landing and Slaughter-House Company, obtained an injunction from the Twenty-Fourth District Court of the parish of St. Bernard restraining Alcée Le Blanc, defendant, claiming to be an inspector of live stock for the parish of St. Bernard, from interfering with the plaintiff in the discharge of his duties as inspector of live stock of the said ■company’s premises, duly appointed as said inspector by the Governor of the State.

The defendant, after excepting to the petition on the ground that it contained no cause of action, answered to the merits.

The answer, after averring the defendant’s appointment by the Police Jury of the parish of St. Bernard of “ Inspector of Live Stock to be ■slaughtered in said parish, at the Orescent-City Live-Stock Landing and 'Slaughter-House Company,” contained the further averment that “ the appointment of said Wooton, if any was made, who is not a resident of the parish, to the office aforesaid was illegal, null, and void, violative of the provisions of the constitution, and an encroachmennt on the rights, privileges, and prerogatives delegated by said constitution to the paro■chial authorities of each respective parish of the State.”

The case was tried on these pleadings, and from a judgment in favor of the plaintiff defendant has appealed.

There is a motion to dismiss the appeal on the ground substantially ■that in this case the right to an office is involved, and the appeal in such cases must be made returnable in ten days after the rendition of the judgment appealed from.

Section seven of Act 45 of Extra Session of 1870 provides :

“ That in all cases in which the right to office is involved, and an appeal is taken from the judgment of the lower court, it shall be returnable in ten days after, judgment of the lower court, and the Supreme Court, on the motion of either party, shall proceed to try the same by preference.”

The pleadings, a part of which we have quoted literally, show that this suit “ involves the right to office.” This character of the action is further shown by the motion of plaintiff, and the express admissions therein, to have the case assigned for argument in this court as a preference case.

The judgment in the case was signed by the judge a quo on the first of May, 1880, the appeal was made returnable on the third Monday of May, 1880 (17th), more than ten days after the date of the judgment.

In the case of the State ex rel. Slack et al. vs. E. A. Hall, 26 A. 58, where the same question involved in the motion in this case was before the court, the court held:

“ The policy of the law requiring appeals in cases involving the right to office to be made returnable in ten days after rendition of judgment is obviously to have such cases determined, and with the least possible delay. The requirement of the law must therefore be strictly construed.”

It is urged, however, that this irregularity is not attributable to the fault of the appellant; but we find in the petition for an appeal made by the appellant it was expressly asked that the appeal be made returnable on the day designated above, and the order of the judge merely fixed the day as prayed for.

It is therefore ordered, adjudged, and decreed that the appeal be dismissed at the cost of the appellant.

On Application poe Reheaeing.

Bermudez, C. J.

In consequence of the earnestness with which appellant’s counsel press us for a rehearing, we feel much regret at our inability to grant the relief sought.

This is clearly a contest involving directly a right of office.

The plaintiff is the incumbent, and enjoins the defendant, who pretends that he is entitled to exercise the same official functions which the plaintiff fulfills.

The plaintiff holds under a commission from the Executive. The defendant claims under an election from a-police jury. They both insist that they have exclusive rights to the same official privileges and duties. The only difference is, that the sphere within which the plaintiff alleges that he is authorized to act, which is that of the precincts of the Slaughtor-I-Iouse Company, is in point of area less comprehensive than that over which the defendant avers that he has jurisdiction, which is the territory of the parish of St. Bernard, within which the said precincts are established. The plaintiff’s pretensions are for the exorcise of functions within an area which excludes that claimed by the defendant, while those of the defendant are for a similar exercise, within an area which includes that over which plaintiff claims to have sole jurisdiction. The plaintiff may well have a right to discharge his functions within certain limits, and the defendant may well have a similar, though not identical official right, but over a different territory, beyond that to supervise which the plaintiff says he was appointed. To show that it is a contest for an office, the best test is, perhaps, that each claims to be entitled officially, — the one to the exclusion of the other, — to the same rights and duties, particularly the 'emoluments arising from the same source. The plaintiff, who is in office, enjoins the defendant to keep him out of that office as far as their pretensions conflict. The defendant, who is out of office, litigates to put plaintiff out and to put himself in office. A clearer case involving a right of office cannot easily be conceived. The parties have treated, by their pleadings and their other acts, this suit as one involving a right of office. We cannot see by what authority we can discountenance proceedings not reprobated by law and which are susceptible of accomplishing the object which the parties had in view:— an adjustment of their respective differences. This was done by the final judgment of the lower court.

Dissatisfied with the finding of the lower court, the defendant has appealed suspensively from it. A motion to dismiss the appeal was made and sustained. The ruling was based on the consideration that this being a suit in which a right to office is involved, the appeal should havo been made returnable within ton days after judgment, and that it was made returnable after that period. We were therefore prevented from inquiring into the merits of the controversy. We much regretted it, but we cannot say that had we done so the appellant would have derived any benefit from the reversal.

The appeal was made returnable on the day suggested in the petition •of appeal, which was an improper day, as it was beyond the ten days •following judgment, which is the period within which the appeal should have been returned.

This was an error, assuredly. If so, it was attributable to some one. 'To whom, then ? It cannot but be to the party who caused it. Who that party is, is a question which strictly need not be answered, for it is self-evident. The error is imputable to tlie appellant, and not to the judge, who granted, ipsissimis verbis, the prayer of the petition in which the return-day is expressly suggested.

Our attention is called to the ruling in Ohaffe vs. Heyner, 31 A. 595, in which relief was granted to an appellant whose appeal was sought to be dismissed because by.the order on the motion of appeal, which was drawn up entirely by appellant’s counsel and adopted by the District Judge, an improper return-day was assigned. This court held that “an order of court, whether written by the attorney of ono of the litigants or by the clerk, is the act of the judge.” * * i:‘ “ It was the judge who made the order of appeal, who named an improper day for its return, and the defendant cannot be prejudiced.” This ruling has our unequivocal indorsement, and it is therefore unreservedly affirmed. It was made because the appellant had not suggested the return-day designated by the judge. Had he done so in the body of the motion in which he averred his complaint and which forms no part of the order of' appeal, to which it serves as a basis, the court would not have ruled as it did. An inspection of the motion itself shows that no suggestion whatever of the return-day was made by the appellant. The jurisprudence is settled that where the appellant suggests an improper return-day, which is adopted by the judge, it is an error which is imputable to him, and not to the judge, and which will justify the dismissal of the appeal.

In 10 A. 779, in which a motion was made, the court said:

“ The motion was made verbally and as it was the duty of the judge in granting the appeal to fix the return-day, in accordance with the law and tho rights of the appellee, and as there is nothing to show that the appellant suggested any particular return-day, we must consider the order of appeal as the act of the judge.” * * * Trimble vs. Brichta, 10 A. 779.

In 26 A. 747, the proceeding was by petition praying that the appeal bo returnable on the next return-day, for trials of appeals from the parish of Iberville, which was then the ninth of February, 1874. The court held that it was an improper return-day, and dismissed the appeal, saying:

“ The fault lies with the appellants, as they prayed that their appeal be made ‘ returnable to the Supremo Court of Louisiana, at the next regular term for appeals from the Fifth Judicial District of Louisiana.’ The application for an appeal was made in writing, and the time fixed for the return thereof by the judge, was the day asked for by the appellants. If they erred, the error is their own.” The court cited with approval 10 A. 778, and 8 La. 220,12 La. 480, 483.

The appellant’s counsel invites our attention to affidavits annexed to the petition for a rehearing, but we have not considered them.

T]io grounds of complaint in the petition, in so far as facts are involved, must be verified by evidence in the transcript, and not by ex parte testimony of matters in pais, particularly in a case where no proof is admissible at all.

The petition for a rehearing is refused with costs.

Dissenting Opinion.

Fenner, J.

I think we committed an error in dismissing the appeal in this case, and that a rehearing should therefore be granted.

The ground upon which the appeal was dismissed is, that it was not made returnable on the day and within the delay required by law, and that this error is imputable to the fault of appellant. If not imputable to fault of appellant or his counsel, wo clearly should not dismiss. The fault attributed to appellant’s counsel is, that he presented a petition to the court in which he prayed for an order granting the appeal and specified the day on which it should be made returnable ; and that the judge granted the order as prayed for. The counsel of appellant have filed with their application for rehearing affidavits to the effect that, although in the prayer of their petition, as presented in the record, it does appear that the return-day is included, yet that in their petition as presented to the judge, said day was loft blank and was filled in by another than themselves, under the direction of the judge in granting' his order. Recognizing the common custom that prevails in practice, of presenting petitions praying for orders, leaving therein blanks to be filled by direction of the judge in granting the order ; and considering that we are passing upon a question of fault on the part of practicing attorneys of the court, I think they should be permitted to explain apparent fault in a case of this kind, and that the affidavits should be considered.

But even excluding the affidavits, I think the case is fully covered by the recent decision in Chaffe vs. Heyner, 31 An. 595. There it was “alleged that the defect (in the return-day) was imputable to the appellant, because the motion is written by his attorney, and the day is fixed therein, and the judge merely adopted the day as thus fixed.” But the court said : “An order of court, whether written by the attorney of one of the litigants or by the clerk, is the act of the judge. * * It was the judge who made the order of appeal, and who named an improper day for its return, and the appellant cannot be prejudiced by his act.” I am utterly unable to appreciate the difference in fault between the attorney who presents to a court a motion of appeal with an order fixing the return on a day therein written out and asks the court to grant it,. and him who presents a petition of appeal similarly framed. They seem to me to stand in the same case.

In either ease, the judge, in making his order, is exercising a judicial function, and it cannot be assumed that he is influenced by the request of the attorney, or would have made a different order, had the attorney asked him so to do. The case might be different if the action of the attorney misled the judge on a question of fact, as in 26 An. 747, where the attorney asked for the usual return-day, without informing the court that the appellee resided at such a distance that the return-day would pass before the delays of citation would expire.

If this had not been a question affecting the conduct of officers of the court, I should not have thought it necessary to express my reasons for dissent on the mere refusal of a rehearing.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 7712.
    Charles Lange vs. Mrs. A. B. Baranco.
    -Although, the Defendant has not appealed from the judgment dismissing his Beconventional demand, he may, in his Answer to Plaintiff’s Appeal, pray that the judgment of the lower Court be so amended as to recognize and enforce his said claim in Beconvention. This Court will, in that case, revise the judgment of the lower Court also on the point of Defendant’s Beconvention.
    A market-house though not belonging to the owner of the soil upon which it is built, is itself immovable property, and a suit by Injunction to prevent Defendant from disturbing Plaintiff in the enjoyment of said market-house and its revenues, and from slandering his title thereto, is a possessory action.
    'The only legal inquiry in the possessory action is: was the Plaintiff the actual possessor, as alleged, and did the Defendant disturb him ? And plaintiff needs only show possession for a year and a day.
    On the Behearing. — The evidence showing in this case that Defendant was not actuated by malice in slandering Plaintiff’s title, held that the payment of the costs of court, which are considerable, will be a sufficient penalty, without the infliction of damages.
    ^PPEAL from the Third District Court, parish of Orleans. Monroe,

    Braughn, Buck &fDinkelspiel, and E. J. Wenck for Plaintiff and Appellant :
    Defendant not having áppealed from the judgment dismissing her Be-conventional Demand, cannot by her Answer to the Appeal have that part of the case revised by this Court.
    Plaintiff sues as owner to be quieted in his possession. All he has to do, is to show his title, and to prove possession and disturbance, which, he has done.

      I£ the alleged simulation were proved by Defendant, still the suit should be maintained, because Defendant has shown no title, and simulation may be lawful. 17 La. 128 ; 15 An. 547 ; 20 An. 172 ; 11 An. 1G8. There is no simulation of Plaintiff’s title, and none has been proved.
    This suit is technically an “ action of slander of title.” Defendant by her Answer became plaintiff in a petitory action, and assumed the burden of proving in herself a title superior to that of the possessor. 14 La. 849 ; 1 La. 102 ; 11 An. 174.
    McG-loin & Nixon for Defendant and Appellee :
    Defendant’s Demand in Reconvention is, as well as the rest of the judgment appealed from, before this Court for revision. C. P. 592; 30 An. 803.
    This is not a possessory action, as contended, inasmuch as the property in controversy is not real but movable. It is the rents and revenues of the Market-house which are the object of this litigation. 3 Rob. 518 ; 5 An. 585 ; O. P. 46, 41, 6, 4, and 49.
    If the property were real, this suit would be one in jactitation of title, and Defendant can show and maintain her title. 27 An. 308; 11 La. 186.
    We have pleaded fraud and simulation, and need not resort to the Re-vocatory action. 11 An. 169 ; 5 An, 1; 12 An. 173; 10 An. 570 ; 6 An. 710 ; 5 An. 668, and others.
   The opinion of the Court was delivered by

Bermudez, C. J.

Under the main, substantial averment that he is the actual legal possessor of the “ Washington Market-House ” in this city, and that the defendant disturbs him, without any legitimate authority, in the enjoyment of the same and of the revenues yielded thereby, the plaintiff applied for an injunction to restrain the defendant from further molesting him, and prayed to be quieted in the fruition of his rights, and that the defendant be mulcted in damages for slandering Ms title and disturbing him.

The answer admits the disturbance, charges the nullity of plaintiff’s title, as tainted with fraud and simulation, and asserts title in the defendant to the market-house and to its income.

A mass of evidence was received, with and without objection, in the . lower court, which might very properly have been dispensed with, on both sides, as the taking of it has consumed much public time, encumbers the record, inflicts upon the courts, lower and appellate, the burden of considering irrelevant testimony, and imposes upon the party litigant to be Anally cast onerous expense, uselessly incurred.

The judgment rendered below dissolved the injunction and dismissed both plaintiff’s petition and defendant’s roconventional demand,, without any reserve of rights.

From this judgment the plaintiff has alone appealed, but in her answer here the defendant, considering tlxat she also had cause to complain, stated the points on which she thought she had sustained wrong and injury, and prayed that the judgment be amended so as to recognize and enforce her demand in reconvontion, with a reserve of her right to sue in damages, on account of the wrongful issuance of the injunction.

The plaintiff objects to the trial of the case here as regards the ro-conventional demand, on the ground that the defendant did not appeal from the judgment dismissing that demand.

It was unnecessary that she should do so. A judgment is the solemn adjudication of a court, established by law, made in a suit upon the relative claims of parties thereto, as disclosed by the record, and which passes on the matters so presented for determination. When it decides the issues submitted, it is an entirety, and, strictly, is indivisible; not so, however, as to compel a party who is only partly benefited to appeal from the judgment in his behalf. It'may bo rendered partly in favor of or against a litigant, and partly in favor of or against others. The party who appeals, whooyer he be, theoretically brings up the entire judgment for revision to the appellate court; absolutely, as far as it aggrieves him, and conditionally as it affects others who are the appellees, and who can ask that the judgment, as to them, be re-examined and reformed. The Code of Practice, art. 888, recognizes undoubtedly this theory, by permitting expressly the appellee, in his answer, when seasonably filed, to ask a reversal in part and a confirmation in part, as he may choose to do.

The whole judgment is therefore before us for review.

It cannot be claimed that this is a petitory action in the strict technical meaning of the term, for the plain reason that the plaintiff does not claim to be the owner of the neutral ground upon which the market-house was erected. The building so put up had not at the time of the institution of this suit absolutely formed part of the realty and passed to the city, whoso rights to the ownership of it wore and still are contingent upon eventualities; but the market-house, not being at all movable property, in any sense of the term, had to be considered as real property, as it really was and is. 29 An. 355. No one can bring the petitory action who cannot claim title of ownership to the thing revendicated. Possessory actions cannot bo maintained for personal property. C. P. 44, 60.

The character of the suit, determined by the prayer of the petition,, is not that of a petitory action. The averments show, on the contrary* coupled as they are with the annexed act of derivation, that the suit is a possessory one, so far as the plaintiff is concerned. It was unnecessary for him, in order to maintain such an action, that he be the owner of the land or even of the building, which he claimed the right to use. “ Persons entitled to the usufruct, or to the use of real estate, and others having real rights growing from such real estate, may bring their action, when disturbed in the enjoyment of their rights.” C. P. 47, ?¿ 2; 60.

The purpose of such an action is to enable one having possession to maintain it. 11 An. 512. The object of the present action is not only to quiet plaintiff, but also to compel the defendant, who is charged with having slandered plaintiff’s title to the use of the market-house and enjoyment of its revenues, to justify herself, if possible, by exhibition of her title.

The defamer in such a case must either deny the slander, which waives title, or admit the allegation and aver his readiness to sue. The burden is thus thrown upon the defendant to prove judicially his assertions made extra-judieially. 9 M. 714 ; 12 A. 873 ; 11 L. 188 ; 4 An. 53 ; 2 R. 331; 13 A. 235.

In response to the complaint, the defendant has admitted- the slander. She has assaulted the title of plaintiff, asserting the same in herself, and claiming damages, praying reconventionally judgment in accordance with her pretensions. By her pleadings and the silence of the plaintiff the case is given unduly enlarged proportions.

It may be said, however, that this is a suit which partakes of the nature of both a possessory and a petitory action, in this, that the plaintiff claims possession and the defendant title and possession. But, after all, its character is material for the determination of the issues presented by the pleadings and the record, such as we have them before us.

It now becomes necessary to inquire into the respective pretensions of the parties litigant.

It appears from the evidence that the city of New Orleans, influenced by considerations of public good and in the exercise of the control which it claims to have over public property — has, on the 25th of April, 1875, passed, by its Council, an ordinance for the purpose of securing the construction of a market-house on a strip of ground formed by the junction or terminus of two streets in the Third District, offering attractive advantages to whomever would assume and compléte the erection of a market, to be called Washington Market, under the specifications and terms stipulated, on behalf of the corporation. One Raymond became the contractor, and did the work, but did not, however, continue in possession of it. On the 27th February, 1875, he sold all his rights to the market-house and revenues for $150,000, (on conditions which it is Immaterial to consider) to John Lamac, who nest transferred them, on the 3d of April, 1875, to John Lang, who assigned them on October 25, 1875, to Charles Lang, this plaintiff.

The act of sale by John to Charles Lang appears to have been recorded in the conveyance office of this parish on October 20, 1875. It further appears from the record that the defendant acquired similar rights to the market-house and its revenues on the 5th of September, 1876, from the New-Orleans National Bank, who were the adjudicatees of the same at a sheriffs sale, made on the 24th of July, 1876, in the suit of themselves against the same Ra3'inond.

The only legal inquiry in a possessory action is, was the plaintiff the actual possessor, as alleged, and did the defendant disturb him ? 7 L. 415. Plaintiff need only show possession for a year and a day. 9 M. 78 ; 3 A. 342.

The record establishes such possession and such disturbance, inde- , pendent of the formal admissions of the defendant. For greater certainty the plaintiff has gone so far, but unnecessarily, as to establish his title to the possession and enjoyment claimed, which is, as seen, a sale to him by his father, on the 25th of October, 1875, and which was recorded on the following day, in the conveyance office. In the body of the act, it is stated that the rights sold were acquired from John Lamac, •on the 3d of April previous, by an authentic act, which was recorded in the same office on the 3d of April, 1875 ; but this statement is without effect as to third persons. The act referred to is, however, in evidence in the record.

Plaintiff’s case was therefore prima facie made out. It remains for us to inquire now whether the defendant has justified her slander by proving title in herself to the market-house and revenues.

Thé title which she produces is an authentic act of sale by the New-Orleans National'Bank on the 5th of September, 1876, of the rights claimed to have been acquired by it to that market-house, and to those revenues, at a sheriff’s sale on the 24th July, 1876.

The consideration of the sale by Raymond to Lamac, which was $150,000, contrasts significantly with the price of adjudication at the sheriff’s sale, which was $150.

In a case like this, the defendant had to make good her title. She had to establish that of her author. 15 A. 169. To do so, she offered a procés verbal signed by a deputy sheriff, only showing adjudication of said rights to the bank on said day, offered for sale in furtherance of a fieri facias in the suit of said bank against Joseph Raymond, No. 5938, of the docket of the Fifth District Court. 29 A. 270. The procés verbal of those rights, which apparently were real, is not shown to have •been registered in the conveyance office. The writ itself and the return on it were offered no doubt to justify the sale, adjudication, and procés verbal. The judgment in the case was also introduced. It does not show on its face how it was rendered. If it was on a confirmation of default, this important circumstance and the citation and return of service should have been established. If after issue joined, the answer should have been offered. We find nothing but the petition to constitute a judicial record. It was not, however, necessary to produce anterior proceedings, the rule ovinia riie acta presumuntur applying. 6 N. S. 462 ; 9 R. 69 ; 8 A. 138 ; 13 A. 450 ; H. D. p. 586, § 9.

But be this as it may, the defendant cannot claim that she has acquired any thing from the bank, for the bank herself acquired nothing, as on the 24th of July, 1876, when it is said those rights were adjudicated to her, this had ceased to have any existence as to Raymond, the defendant in the case, who had disposed of them more than a year before, on the 27th of February, 1875, in favor of Lamac, who himself had transferred them to John Lang on the 3d of April, 1875, by whom they were on the 26th of October, 1875, assigned to the plaintiff. It has already been observed that the act of sale by John to Charles Lang of those real rights acquired from Lamac and Raymond had been recorded on the 26th October, 1875, in the conveyance office of this parish.

From tliis statement of facts and view of the law, it is clear that neither the bank nor Mrs. Baranco acquired those rights.

She attempted by the voluminous evidence to which reference has already been made to show simulation and fraud in the title which Charles Lang holds from his father John Lang. This endeavor could be countermanded not for the purpose of undoing plaintiff’s title, but of justifying the slander of which she stood charged, which consisted not only in saying that he had no title, but that she had one.

Wo have seen that she has failed to show title in herself. We must say that she has likewise been unsuccessful in showing that the plaintiff has no title to the market-house and to the revenues thereof. Whether there passed a consideration or not between the plaintiff and his father, who is a man of large means, and who owes no debt, is a matter of no interest to the defendant, and of no significance for the determination of this litigation. The sale may have been a disguised donation by the father to the son, perfectly valid in law but voidable only at the proper time by forced heirs, or eventually by creditors of the vendors, asserting their complaint seasonably and alleging and proving injury.

As subrogee to the rights of the bank the defendant might perhaps, after making proper parties in proper proceedings, averring rights anterior to the transfer by Raymond to Lamac, and fraud and injury, have had a right to bring a revocatory action, but it would have had to be done within the year following the commission of the fraud or act done. The sale by Raymond to Lamae was made on 27th February, 1875, and the reconventional demands of the defendant, in which she charges-fraud and simulation, were filed on November 22, 1876, and June 27,. 1877.

On the whole, we consider that plaintiffs case is made out, and that he is entitled to be quieted in the enjoyment of the market-house, and of its revenues, and to recover damages from the defendant for the-slander of which’she is proved to have been guilty, and which may be reasonably estimated at three hundred dollars.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed, and, proceeding to render such judgment as should have been rendered,

It is ordered, adjudged, and decreed that the injunction herein issued be perpetuated, and that plaintiff recover of the defendant the sum of three hundred dollars, and that 'the reconventional demands of the defendant be rejected with judgment therein in favor of plaintiff, Charles Lang, and that the defendant, Mrs. Baranco, pay all costs of suit in-, both courts.

Mr. Justice Fenner takes no part in this decision.

ON REHEARING.

A review of the evidence satisfies us that the defendant was not actuated by malice in slandering plaintiffs title sufficiently intense to justify the infliction of the damages allowed and which were considered' light. She came up with a judgment justifying her course, a circumstance which militates successfully in her favor. After considering the matter anew, we think that the payment of the costs of this litigation, which apparently are reasonably heavy, will prove a sufficient atonement for the slander.

It is therefore ordered that our previous judgment be amended by striking therefrom the words “ and that plaintiff recover of the defendant the sum of three hundred dollars ” and from the opinion the reasons, conducive to that portion of the decree, and that thus amended the said judgment remain otherwise undisturbed and be executed.


author: Fenner, J.

text:
    No. 6543.
    Louis Fischel vs. Dr. Armand Mercier.
    Acts No. 47 of tlie Legislature of 1873 and No. 105 of 1874, providing for the sale of the property of delinquent tax-payers by State tax collectors, commented upon and construed.
    Decision in case of the State exrkl. Norcross vs. Lynch, Judge, etc., 27 An. 704, affirmed.
    Tax Collector’s sales are only#rima< facie valid, i. e. the burden of proof is shifted upon the defendant, -who has the right to show that the formalities of the law have not been fulfilled, under the Statute, and that the sale is invalid.
    Although the proceeding by which the purchaser at atax-sale, is tobe ordered to be put in possession, should be summary, still the Statute does not provide that the purchaser may proceed by Hule, and, therefore, he must bring suit against the defendant by Petition and Citation.
    ]?PEAL trom the Superior District Court and Third District Courfcj parish of Orleans. Lynch, J.

    Brauglm, Buck & Dinkelspiel for Plaintiff and Appellee :
    “We contend that in this case all the formalities of law have been complied with.
    That the proceedings, being summary, may be tried at any time, in the manner provided by law.
    That our title, being conclusive, could not be attacked collaterally, but, if at all, by direct action.
    That this action being more of a possessory than a petitory one, the question of ownership could not be entered into.
    A sworn officer is always presumed to have done his duty, until the contrary is proved,” and the tax-collector being such an one, defendant must show that he failed to do so.
    The assessment being the judgment, and that being valid, there was no necessity for a citation. The sale following was the execution.
    A. B. Phillips and Samuel P. Blanc for Defendant and Appellant;
    From the note of evidence it will be seen that defendant was not even permitted to show that the property had been sold without due advertisement, whether in number, dates, or description. He was not so much as allowed to put in his own titles, and, in fact, he was completely gagged.
    Tax-collectors could not sell, in 1875, for back tax, beyond two years back. Acts 1873, No. 17, p. 56, see. 1 (bottom p. 56). But, as defendant was not allowed to put in advertisement to show the tax for which the property sold, the necessary facts are not before the ' Court.
    There remains the question as to whether the plaintiff has proved his case.

      We have already shown your Honors that the tax-collector’s deed is, at best, only prima fade evidence of a valid sale, by which is meant that it is proof of the observance by the tax-collector of the ceremonies attending the sale, of the steps he himself takes toward a sale. But it is no proof of the existence of an assessment (the judgment), which must be the foundation of his right to’proceed against the property. Brady vs. Offut, 19 An. 185.
    So the notice required to obtain jurisdiction over the defendant, and as a condition precedent to a seizure and sale, it has been decided, must be proved by the person claiming title. 30 An. 1274.
   The opinion of the Court was delivered by

Fenner, J.

The plaintiff claims possession of the property of defendant under a tax-collector’s title made under the provisions of Act No. 105 of 1874, said property having been previously adjudicated to the State at a tax-sale made under the provisions of Act No. 47 of 1873. He also presents a further title from the Auditor of the State, made after non-redemption within six months ; and demands to be put in possession as directed by section four of the Act 47 of 1873.

An analysis of section one of the last-mentioned act will disclose the following necessary requisites to a valid sale of property by a tax-collector, viz.:

First. There must be an assessment of the property far taxation against the owner.

Second. There must be a public notice in the manner and during the time required by law.

Third. There must be a failure to pay the tax within ten days after the expiration of the foregoing public notice.

Fourth. The collector must then give ten days written or printed notice to the owner or agent to pay said tax.

Fifth. After this delay, if not paid, the collector must make a seizure of the property by recording a description of the same, with the amount due, 'in the mortgage-book of the parish in which the property is situated.

Sixth. On the fourth day after said recordation, he shall proceed with the sale thereof, by advertising three times within ten days in the official journal, or, in country parishes, by public notice for such ten days.

Seventh. After the expiration of said advertisement or notice, and on the day fixed therein, the collector may make the sale.

The fourth section of the Act provides:

“ That the tax-collectors shall be, and they are hereby, authorized to give a title in the name of the State of Louisiana to all persons purchasing property sold in pursuance of this Act; and such title shall -be held in, and recognized by, the courts of this State as valid in law ; upon the presentation of a title so given, to the district or parish court, it shall be the duty of the judge to order the sheriff to put such persons in possession of the property so purchased by them.”

By the express terms of the foregoing section it conclusively appears that the tax-collectors are only authorized to give title where the property has been “ sold in pursuance of this actand it is equally apparent that a sale is not made “ in pursuance of the act,” unless the express requirements heretofore enumerated have been complied with. It is only “ such title,” i. e. under a sale made “ in pursuance of the act,” that the courts are required to recognize as “ valid in law.” And it is only “ on the presentation of a title so given ” that the courts are required, through orders to the sheriff, “to put such persons in possession of the property so purchased by them.”

The nature and form of the judicial proceeding authorized to be taken to obtain possession, are not clearly defined in the act. This Court has, however, partially interpreted it, and has held that “ as the act does not, in express terms, declare that the order to the sheriff to put the purchaser in possession shall issue without notice, wo may well construe it as adopted with reference to the general laws relating to summary proceedings in the courts of the State, and as authorizing the district courts, to which application is to be made, to require the necessary legal notice to be issued to the party to be ousted, and to dispose of the contest in a summary manner.”

State vs. Judge, 27 A. 704.

We certainly consider this interpretation not only reasonable, but absolutely necessary, in order to give any validity whatever to the provision referred to. The proposition that aman may be turned “neck and heels” out of his home, or out of possession of any other property, under an order of a court made upon the presentation of a mere paper title, without any opportunity afforded to contest its genuineness, or, even if genuine, its validity, involves too absurd a violation of the constitutional prohibition against depriving a man of his property “ without due process of law ” to have it supposed that such an intention could ever have been entertained by any legislature. The law evidently contemplated a “judicial proceeding.” Mr. Webster, in the Dartmouth -College ease, defined “ the law of the land ” to be “ a law which hears before it condemns ; which proceeds upon inquiry, and renders judgment only after trial.” This definition, as applied to “ due process of law” in judicial proceedings, has been affirmed by many judicial decisions, and it is now settled, as a general proposition of law, that in judicial proceedings “ the law of the land requires a hearing before condemnation, and judgment before dispossession.” The summary proceedings allowed in the assessment and collection of taxes are, to some extent, exceptional; but they do not extend to exempting from the operation of the general principle proceedings for the enforcement of titles to property under tax-sales. Such conveyances, in absence of statutory regulation, must be enforced like other titles; and being executed under statutory power, they would not ordinarily be evidence of title, without affirmative proof that all the requirements of the statute had been complied with. It rests, however, with legislative power to make such deeds prima facie evidence of title, the effect of which is to shift the burden of proof to the defendant, and to require him by countervailing proof to rebut the presumption of validity. Such, and no other, was the effect of art. 118 of the constitution of 1868. It did not justify or authorize a dispossession of the former owner, without notice, hearing, and judgment. The plaintiff in this case has so far complied with the requirements of law as to have given notice to the adverse possessor, defendant herein ; but his proceeding, original and independent in its nature, has been commenced by a rule notifying and ordering defendant to show cause on a certain day why the relief applied for should not be granted. To this mode of proceeding the defendant has duly excepted.

It was no doubt the intention of the statute that the proceedings authorized should be summary in their character ; and had the proceedings by rule been expressly directed by the statute, it would not have been objectionable. But there is no such direction ; and as we hold that the proceeding authorized is a judicial proceeding, with all its incidents and characteristics, it follows that it must be governed by the general rules of law applicable to such proceedings, so far as those rules are not modified by the statute. Those general rules undoubtedly require every judicial demand to be commenced by petition and citation. C. P. 170, 171.

“ The right to proceed by rule or motion (ordinarily) implies the pendency of a suit between the parties, and is confined to incidental matters in the progress of the contestation, except where a (such) summary remedy is expressly allowed by law.”

Thomas vs. Bourgeat, 6 Bob. 437.

Copley vs. Conine, 3 An. 207.

Baker vs. Doane, 3 An. 434.

6 A. 485,12 A. 201,14 A. 390,18 A: 512, 22 A. 156.

.The right to initiate an original judicial proceeding by a rule to show cause must be derived from express statutory authority. In the absence thereof, we cannot recognize such mode of proceeding.

Even if the statute had expressly directed that the proceeding-should be summary, that alone would not authorize the initiation of an original personal action otherwise than by petition and citation.

The conclusion reached by us on this point dispenses us from the necessity of reversing the extraordinary rulings of the judge a quo in refusing to receive any evidence whatever in support of defendant’s answer, which expressly denied that any of the essential prerequisites of the tax-sale had been complied with ; but as a guide for the conduct of further proceedings in this and similar controversies, we would say that such rulings rendered the notice given to defendant useless and unavailing and converted the merely prima f aoie valid tax-deeds into absolute and irrefragable titles. Such was not the intention of the law, and if it had been, it would have rendered the law unconstitutional and void.

We dispose of the case, however, by sustaining the exception to the mode of proceeding.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be reversed; that the exception of defendant to the proceeding by rule be sustained ; that plaintiff’s suit be dismissed; and that plaintiff and appellee pay costs of the lower court and of this appeal.


text:
    No. 7447.
    State ex rel. Folsom Bros. vs. Mayor and Administrators of the City of New Orleans.
    Under Artiole 209 of the Constitution of 1879, the city of New Orleans has no power to levy a tax in excess of Ten mills on the dollar; and it cannot be compelled by Mandamus to exercise a power which it does not possess; unless in cases where said Article 209 would be violative of the Constitution of the United States.
    This Constitutional limitation does not apply meroly to taxes levied for the ordinary expenses or purposes of municipal government, but to all taxes levied by municipalities for any purposes whatever.'
    The State Constitution, when it does not conflict with that of the United States, is omnipotent iu its disposition, and even, destruction, of private and social, rights; and no Court has the power to question the validity of any provision of such State Constitution, however unwise or unjust it might be, if not repugnant, as aforesaid, to the Federal Constitution. A State may pass laws divesting vested rights, without infringing the Federal Constitution. Claims arising from a tort, and not from a contract, are not protected by the clause of the Constitution of the United States, which forbids a State to pass laws impairing the obligation of contracts.
    Judgments rendered upon torts cannot, in any manner, be considered as contracts.
    Article 209 of the Constitution of 1879 does not conflict with the Constitution of the United States, nor with the 14th Amendment thereof, so far as the Relators in this case are concerned, because their claim arises not from a contract, but from a tort.
    A PPEAL from the Third District J. Court, parish of Orleans. Monroe,..

    Robert Mott and Thos. J. Semmes for Relators and Appellees :
    The obligation on the part of the city to make good losses sustained by' mobs is a statutory obligation and not a tort, nor is it an obligation arising out of an offense or quasi offense, for sucli an obligation.arises out of some act of the obligor, whereas in the case of the city, the obligation arises out of an act not done by the city or any of its officers or agents, and hence it is not an offense or quasi offense, and, therefore, it is an obligation like that imposed by law , on co-terminous proprietors, in regard to party walls; it is an obligation therefor imposed by law upon the city, and is in its nature a stipulation pour autrui, that is, an obligation imposed by law on the city in favor of a third person, which obligation like any other stipulation pour autrui becomes perfect by the institution of suit to enforce the obligation. If it be an obligation of that sort, it is protected like any other obligation, by the Constitution of the United States, which prohibits the passage of a law impairing the obligation of contracts ; for every obligation under the civil law, except that arising from offenses or quasi offenses, is a contract, in the sense of the Constitution, that is to say, it is an obligation which cannot be impaired.

      Tbe limitation on the power of taxation only applies to the ordinary purposes of government, to what the city in this case calls the alimony of the city ; it does not apply taxation to meet any other than ordinary municipal purposes. See Butz vs. City of Muscatine, 8 Wall. 578.
    The law in force when our right was acquired or judgment rendered could not be altered to our prejudice. Memphis vs. United States, 7 Otto, 294, or 97 U. S. 294.
    We had a right of property conferred on us by law; and by the Fourteenth Article of the Constitution of the United States, we cannot be deprived of the same without due process of law.
    The State Constitution of 1868 says : “No law impairing the obligation of contracts shall be passed, nor vested rights be divested.”

    The Constitution of 1879 says : “Nor any law impairing the obligations of contracts shall be passed, nor vested rights be divested.”
    The right of recovery for injury done is so sacred that it is considered worthy of protection.
    Wade on Retroactive Laws, p. 122.
    Where an act of negligence produced personal injury for which the person suffering the same was entitled by the existing law to recover the full amount proved, it was held that a subsequent statute limiting the recovery to a less sum would not affect the rights of the injured party. He had a vested right not only to compensation for his injuries, but the measure of the damages fixed by the law as it existed when the cause of action occurred.
    Ray vs. Pennsylvania R. R. Co., 65 Pa. State, 269.
    The same principle is held to govern the assessment of damages for injuries to private property in the exercise of the right of eminent domain, the right of recovery was for the property and damages, a subsequent change of the law, held to be insufficient to exonerate the city from the duty imposed by the law when the damage was inflicted.
    Elgin vs. Eaton, 83 Ill. 535.
    Clayhug vs. City of Chicago, 25 Ill. 535.
    The People ex rel. Decatur and C. R. R. Co, vs. Roberts, 62 Ill. 38.

      In re Townsend, 39 N. Y. 171.
    Wynehamer vs. The People, 13 N. Y. 378.
    The People vs. Howe, 37 Barbour, 440.
    Taylor vs. Porter, 4 Hill, 140.
    And when such damages are assessed, the right to recover the amount awarded becomes vested in the party whose property has been taken, and is not lost by the repeal of the statute by which the assessment was authorized, nor even by a positive enactment.

      The People vs. Supervisors of Westchester, 4 Barbour, 64.
    'These cases are identical in principle with ours.
    The rights secured to either party to a suit by an adjudication of the matter in controversy between them are proprietory rights, which, the constitution will protect.
    Wade on Retroactive Laws, section 171.
    Memphis vs. U. S., 7 Otto, 294.
    'It was urged that the relators had no right to a mandamus to have .a tax levied to pay all judgments before theirs; at first the idea seemed to have something in it, but nothing in fact.
    The relators asked for what the law required, that all the judgments registered before theirs be paid; this could only be clone by taxation ; if they were not in the category which entitled them to the tax of one and three quarters per cent, the city knew that fact, and should have shown it. The relators did not know what the judgments were for, or when the cause of action accrued; if the city did not show, the relators could not; it was greatly to the advantage of the re-lators to exclude the other judgments, and they now consent to their being excluded, an'd that the mandamus be made perpetual to levy a tax of one and three quarters per cent to pay their judgments described in their petition.
    E. Howard McOaleb, City Attorney, for Defendant and Appellant:
    The judgment of the court a qua is erroneous because :
    ‘The city of New Orleans cannot be compelled by mandamus to levy taxes to pay her judgment creditors, in excess of the limitation imposed by sec. 6 of Act No. 31 of 1876, commonly known as the “ Premium-Bond Law.” U. S. ex rel. Learned vs. City of Burlington, vol. 2, No. VII; p. 394, N. S. Amer. Law Register ; Cooley on Taxation, p. 524 ; 8 Wall. 579 ; 18 Wall. 71; Burroughs on Taxation, g 129, p. 375 et seq.; Dillon, Munic. Corporations, § 610, p. 611; 29 An. 661.
    That law does not violate the Federal Constitution. Relators’ judgments were for damages arising from a tort, and not upon a contract. 28 An. 936. Cooley on Taxation, p. 56, and pp. 252, 253.
   The opinion of the Court was delivered by

Fenner, J.

Folsom Bros., relators herein, are holders of two judgments against the city of New Orleans, the same being for damages done to their property by a mob or riotous assemblage within the limits of said city, in 1873, for which the city was liable'under section 2453 of the Revised Statutes.

One of said judgments, for $2000, became final on July 3d, 1874; the other, for $26,858, became final in December, 1877. They were properly registered in the office of the Administrator of Public Accounts, on January 15th, 1876, and January 15th, 1877, respectively, in accordance with the provisions of Act No. 5, Extra Session of 1870.

In their petition herein they state the foregoing facts, and further aver that othe'r judgments against the city to a large amount had been registered prior to their own, and that it was the duty of the city officers to place them all on the budget, and to levy and collect taxes to pay them; that said city officers had failed and refused to perform said-duty ; that being prohibited by law from issuing executions upon their said judgments, they are without other remedy except through the levy of taxes for their payment; and that the refusal of the city to levy such taxes deprives them of all remedy, and -is in violation of their vested rights and of the constitutions and laws of the United States and of the State. They prayed for a writ of mandarhus commanding the proper officers of the city to place upon the budget for the year 1879, and all succeeding years , until the same be fully paid, all the registered judgments, including those of relators, and to impose taxes, in addition to all other taxes required for other expenses, to an amount sufficient to pay and satisfy the whole of said registered judgments.

The officers of the city made return substantially, that under the provisions of Act No. 31 of 1876, the power of the city to levy taxes, for any purpose whatever, was limited to one and one half per cent upon the assessed value of taxable property; that the necessary alimony of the government must be provided for before debts can be paid; and that the revenues derived from taxation to the aforesaid limit of the law, and from all other sources, would not be sufficient to provide for the said necessary alimony of the city government. '

The learned judge of the lower court was of opinion that under section 19 of Act No. 7 of 1870, which was in force in 1873, at the time when the causes of action upon ■which relators’ judgments were rendered, originated, the taxing power of the city was only limited to one and. three quarters per cent; that this taxing power so fixed constituted the sole remedy for the enforcement of their claims; that the right to diminish or destroy this taxing power involved the diminution or destruction of the sole remedy of relators, and could not be exercised to the prejudice of relators’ vested right to such remedy.

The court, therefore, made the mandamus peremptory so far as to order the budgeting of all judgments prayed for in succeeding years ; and that with a view to the payment thereof, respondent be ordered to levy taxes to the extent of one and three quarters per cent, as prescribed-by section 19 of Act No. 7 of the Extra Session of 1870.

From this judgment, which was signed on February 5th, 1879, the •city took this suspensive appeal.

The first thing that attracts judicial cognizance on the very face of this record, is, that any decree rendered by us herein, ordering the levy ■of taxes by the city of New Orleans, must operate prospectively only. The past is beyond recall and beyond remedy. If we should affirm, the •decree appealed from, the effect would be to order the city of New Orleans, in its next and succeeding tax-levies, to impose and collect a tax of one and three quarters per cent until all the judgments referred to in the decree are settled. The mere statement of this proposition irresistibly recalls the provision of article 209 of the Constitution of 1879, which provides “that no parish or municipal tax for all purposes whatever shall exceed ten mills on the dollar of valuation.”

It is impossible to conceive of any form of expression in which the intention of the framers of the Constitution to restrict absolutely the power of municipal taxation within the limit of ten mills on the dollar •could be more positively asserted.

A tax levied by the city of New Orleans is unquestionably a “ municipal tax.” Such a tax levied for the purpose of paying debts, is yet a tax levied for a purpose, and falls within the all-embracing expression “ all purposes whatever.” And when thus much has been said, it involves the inevitable conclusion that if the constitutional provision is to be operative, and is not restrained in its effect by some higher authority, the city has not the power to levy a tax in excess of ten mills on the dollar, and we cannot compel the city to exercise a power which it does mot possess.

Attempt is made by counsel for relator to restrict the limitation of this constitutional provision to taxation for the ordinary purposes of government. If such had been the intention of the framers, it would have been easily and naturally expressed. The language used not only does not convey, but absolutely excludes such construction of its meaning. It is, besides, notorious that the object of the limitation was not merely to restrain the extravagance of administrators of municipal corporations, but to relieve property from the burden of excessive taxation.

The eases relied on to impose this restrictive meaning upon the •clause referred to are without application.'

McCracken vs. San Francisco, 16th California, 591, applied to an •article of a city charter, providing that “ th'e common council shall not •create nor permit to accrue, any debts or liabilities which shall exceed $50,000 over and above the annual revenues of the city ;” and held that this only applied to voluntary acts or contracts of the council creating liabilities, and not to liabilities cast upon-her by the law, independent of any contract or permission of the council. Such appears to us to be the only possible meaning that could be derived from the language used in the charter itself, and we see nothing in that case that touches the one at bar.

The case of Butz vs. Muscatine, 8th ’Wallace, 575, has still less application. There, it is true, there was a provision in the charter of the city of Muscatine, limiting the power of taxation to one per cent, but-there were also co-existing provisions in the general laws of the State-requiring corporations, against which judgments had been rendered, after execution returned unsatisfied, to levy a tax as early as practicable-to pay off such judgments. In effect, the court merely held that the restriction in the charter did not repeal said general laws, and did not apply to the duty of corporations thereunder to levy taxes to pay judgments. It is evident, we have here no such co-existing statutes to be in~ ■ terpreted together ; nor was the language of the Muscatine charter so> broad as that of our Constitution.

Moreover, in the subsequent case of United States vs. Supervisors,. 18 Wall. 71, the decision in the above case was substantially overruled. Having thus determined the meaning of this constitutional provision,, let us now examine the power of the Constitutional Convention to pass-such a provision.

The learned judge of the lower court, in his able opinion, was dealing-with questions very different from those which we are now discussing. He was considering the effect of mere legislative acts. He held that inasmuch as, at the time when the obligation sought to be enforced by-relators originated, the city had the power to levy a tax of one and three quarters per cent, and as the sole remedy for the enforcement of said obligation was through the exercise of said taxing powers, there- . fore, “ if that power • could be diminished by subsequent legislation, it. might with the same propriety, be withdrawn altogether.” That, he said, could not be done. Why? Because, in his own language, “it-would operate a divestiture of the remedial right which had existed in the relators.” In other words, the judge held that the subsequent legislative acts restricting the city’s power of taxation could not apply to-relator’s right previously existing, because such application would operate to divest a vested right, in violation of art. 110 of the Constitution of the State then in force.

It is unnecessary for us to review the decision of the district judge-on this point, because the limitation on the power of the Legislature, imposed by the Constitution of 1868, has no force over the power of the Constitutional Convention.

A constitution framed by a convention of the people, especially after having been submitted to and ratified by a direct vote of the people, is the ultimate expression of the will of the sovereignty itself. Its provisions may control, with plenary power, all private and social rights, and all existing laws and institutions, and may even violate the most fundamental rules of justice ; provided, only, they do not conflict with the provisions of the Constitution of the United States, which, with regard to the subjects covered by them, and to those subjects alone, form the paramount law of the land. No court has the right to question the validity of any provision of a State Constitution, however unwise, impolitic, or even unjust it may be, upon any other ground whatever than that it violates the Constitution of the United States.

Cooley on Constitutional Limitations, p. 34.

It follows, therefore, that the provision of the Constitution of 1879 must have full operation and effect, against all persons and against all rights, except so far as its operation is restrained by the Constitution of the United States. It follows, to come more directly to the exact point at issue here, that no person can require the city of New Orleans to levy a greater tax than one per cent, unless he can establish a right in himself to require the levy of such higher tax, and unless he can also show that said right is so protected by the Constitution of the United States, that it could not be taken away by any action of the State. If the State can destroy such right, it has destroyed it by this provision of its Constitution.

To begin with, it is settled by an uninterrupted current of authorities that a State may pass laws divesting vested rights wjthout infringing the Constitution of the United States.

Charles River Bridge vs. Warren, 11 Pet. 420.

Watson vs. Mercer, 8 id. 88.

Sutterlee vs. Matthewson, 2 id. 413.

Railroad Co. vs. Nesbitt, 10 How. 395.

Matter of Oliver, Lee & Co.’s Bank, 21 N. Y. 9.

The only provisions of the United States Constitution which could be invoked as protecting relators’ alleged right here, are:

First. The provision forbidding a State to pass any law impairing the obligation of a contract.

Second. The provision of the 14th amendment forbidding the State to “ deprive any person of life, liberty, or property without due process of law.”.

The first provision has ho application here. Relator has no right of any kind arising' from a contract, express or implied, and no other rights are within the protection of this provision.

It is settled that claims arising from a tort, and not from a contract, are not so protected.

Dash vs. Yankleck, 7 Johns. 477.

Amy vs. Smith, 1 Litt. 326.

Thayer vs. Seavey, 11 Me. 284.

The position of counsel that this is not an obligation arising from a tort, but an obligation imposed by law on the city in favor of a third person, and in the nature of a stipulation pour autrui accepted by such third person, and therefore equivalent to a contract, is not sustained by any authority. The only case in which we have found that question adverted to holds distinctly that “ those rights which the law gives to, or obligations which it imposes upon, persons in certain relations, independently of any stipulations which the parties themselves have made,” are not within the protection of this clause.

Robinson vs. Howe, 13 Wis. 341.

We are, however, unable to perceive any distinction between' the obligations arising under section 2453 of the Revised Statutes and those arising under the articles of the Civil Code relative to offenses and quasi offenses. It merely expressly extends to municipal corporations that responsibility for damage occasioned by their fault or negligence, or by the fault or negligence of their servants or overseers, which rests upon natural persons under articles 2315, 2316, and 2320 of the Civil Code. It has been a subject of frequent judicial discussion, and of contradictory decisions, whether or not such responsibility would not attach even in absence of such special statute, on the grounds that powers are granted to municipal corporations especially designed to enable them to preserve peace and order, and that it is their duty so to exercise such powers as to afford adequate protection to property against mobs and riots. It cannot be doubted that these principles are the underlying reasons of the statute. But, whatever may be the source of these obligations, it is plain, they do not spring from contract.

It is suggested, however, that whatever may have been the origin of relators’ rights against the city, their judgments, at least, are contracts, and within the protection of this constitutional clause. We are unable to discover any principle upon which to base such a doctrine. In the early and leading case of Fletcher vs. Reck, 6 Cranch, p. 136, Chief Justice Marshall, in defining what is meant by the word contract as used in this very clause, said: “ A contract is a compact between two or more parties.” In the later case of Green vs. Biddle, 8 Wh. 92, the word contract, in the same connection, was defined to be the agreement of two or more parties to do or not to do certain acts.” It thus appears from the decisions of the highest Federal tribunal, that the word “ contract” as used in the Constitution is to be interpreted according to the meaning attached to it, in ordinary language, and under all systems of law.

We are at a loss to perceive what features of such a contract attach to judgments, as such. Far from being agreements or compacts between the parties, they are usually the sequence of violent contests, and ■are imposed upon the losing party by a higher authority, against his will and protest.

It has been distinctly held by high authority that “ a judgment is not an agreement, contract, or promise in writing.”

Todd vs. Crumb, 5 McLean, 172.

The Supreme Court of the United States has expressed its opinion upon this question in terms which, though perhaps obiter, leave no doubt that the views here expressed by us would receive its sanction. It said: “It may be doubted whether a judgment not founded upon an agreement, express or implied, is a contract within the meaning of the constitutional prohibition. It is sometimes called toy text-writers a contract of record, because it establishes a legal obligation to pay the amount recovered, and, by Action of law, where there is a legal obligation to pay, a promise to pay is implied. -But it is not perceived how this Action can convert the result of a proceeding not founded upon an agreement, express or implied, but upon a transaction wanting the assent of the parties, into a contract within the 'meaning of the clause of the Federal Constitution which forbids any legislation impairing its obligation. The purpose of the constitutional prohibition was the maintenance of good faith in the stipulations of parties against any State interference. If no assent be given to a transaction, no faith is pledged with respect to it, and there would seem, in such ease, to be no room for the operation of the prohibition.”

Garrison vs. City, 21 Wall. 203.

These views are in harmony with the reasons and principles underlying the constitutional provision referred to, and we have no hesitation in adopting them.

See, also, Forsyth vs. Marbury, R. M. Charlt. 324.

Second. It is next contended that this restriction in the Constitution of 1879, quoad the right of relators, violates that provision of the 14th amendment of the Constitution of the United States forbidding the State “ to deprive any person of life, liberty, or property without due process of law.”

It cannot be, nor to our knowledge has it ever been, contended that this provision is the equivalent, in meaning and effect, of those provisions so common in State Constitutions which forbade the passage of ■laws divesting vested rights.

It is not necessary for us to refer to the many limitations which were imposed by judicial interpretation upon the terms “ vested rights,” even under those express provisions. The 14th amendment, by its very terms, refers only to “ property ” and no “ vested rights ” can be included within that term, by any stretch of interpretation, except “ vested rights” in and to “property.” Giving to the word “property” its broadest signification, so as to include every thing susceptible oí ownership, movable or immovable, corporeal or incorporeal, it cannot possibly be extended to remedies given merely for the enforcement of property-rights. Still less can the power of taxation of a municipal corporation be a subject of ownership by any individual, in such sense, that the diminution or taking away thereof by the competent power can be considered as depriving him of his property.

The decisions bringing remedies, to a certain extent, within the operation of the Federal prohibition of laws impairing the obligations of contracts, by no means recognize any rights of property therein, but rest upon the very different principle laid down in the leading case of Ogden vs. Saunders, 12 Wheaton, 213, that “parties must be understood as making their contracts with reference to existing laws, and impliedly assenting that such contracts are to be construed, governed, and controlled by such laws.”

We have thus carefully examined every ground upon which the re-lators herein can possibly claim that their right to the remedy herein invoked is protected from the operation of the adverse provision of the State Constitution.

We shall always be found ready to yield, and to enforce, obedience to the requirements of the Federal Constitution ; but, where those requirements are not violated, we must, as ‘mandataries of the State, recognize her Constitution as our sole procuration, defining and limiting our powers, and we can neither do, nor direct to be done, nor permit to' be done, any thing in violation of the provisions thereof.

It is, perhaps, superfluous to say that the rights of contract creditors will be passed upon only when presented for our adjudication.

It is therefore ordered, adjudged, and decreed that the judgments herein appealed from be reversed, and that the mandamus prayed for be denied, relators paying costs of the lower court and of this appeal.


author: Levy, J.

text:
    No. 7748.
    A. B. French & Co. vs. Thos. H. Davidson.
    On Motion to Dismiss.
    Xhe surety on the -Bond given to release the property attached, does not occupy the same-position as one on an Injunction bond: he is not a party to the suit, and, therefore, may be-a legal surety on the Appeal Bond,
    BPEAL from the Sixth District Court, parish of Orleans. Righior, J.

    McGloin & Nixon for Plaintiffs and Appellees.
    Singleton & Browne for Defendant and Appellant.
   The opinion of the Court was delivered by

Levy, J.

The plaintiffs appeal from the judgment of the lower-court on a rule to dismiss the appeal, on the ground of no legal surety being - given on the bond. Joseph Cooper, the surety on the appeal-bond, is the same person who is surety on the bond given for the release •of the property attached in the suit. The appellant, in support of his-motion to dismiss the appeal, relies upon the authority cited by him,, being the case of Dumas vs. Mary, 29 An. 808. In that case it was held that the security on an injunction-bond cannot be a surety on an appeal-bond, because the surety was a necessary party to the appeal, and the-Court referred to the decision in 18 A. 659, Oimeo vs. Danerwheim,. where the surety on the injunction-bond was the surety on the appeal-' bond, and was a party to the suit, and, therefore, dismissed the appeal on the ground of his incompetency as a surety on the bond for these-reasons. The same doctrine is held in 12 L. R. 383.

The surety on the bond to release the property attached does not-occupy the same position as one on an injunction-bond; he is not a. party to the suit. In this case his solvency or sufficiency was tested on a motion in the lower court to set aside the appeal, and he was decided to be a sufficient and solvent surety. C. P. 576.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court discharging the rule to set aside the appeal be affirmed, with costs.


text:
    No. 7919.
    State ex rel. Carcass vs. Judge of First District Court.
    The punitory Section of Act No. 44 of the legislature of 1879, relative to the sale of Lottery-tickets in this State, -was not abrogated by Article 167 of the Constitution.
    James C. Walker for the Relator:
    The only legal relief left to Relator is by the writs of certiorari and prohibition applied for. Under article 90 of the present Constitution, this Court has the power to issue them independently of its appellate jurisdiction.
    The District Judge should be prohibited from passing sentence upon the-Relator, because the law under which he was prosecuted, Act No. 44 of 1879, was abrogated by article 167 of the Constitution. C. C. article 17, article 2; Constitution of 1879, articles 167 and 258.
    E. C. Zacharie, Simeon Belden, Posey, and A. A. Grandpré as amici curice, on the same side.

      J. A. Campbell for the Respondent:
    We do not deny the operation and validity of the 167th article of the Constitution, nor that all laws contrary to the provisions of that article are null and void.
    Rut those who affirm there is a contradiction between the three sections of the act of March, 1879, which make no mention of the Louisiana State Lottery Company, and only provide penalties against lotteries and the sale of lottery tickets and devices, should be prepared to show that contradiction distinctly.
    ■The rule of law on this subject is fully established.
    There must be an irreconcilable repugnancy between the existing law and the law subsequently enacted before the former is abrogated by the latter. The Constitution in the article under consideration declares that there must be contradiction, opposition, contrariety, before there can be any repeal or nullity under its terms.
    The jurisprudence of this State is replete with discussions on the subject.
    The old law is abrogated by the new, only when couched in the negative, or so clearly repugnant as to imply a negative.
    A repeal will be implied only when the last statute contains provisions contrary to or irreconcilable with those of prior laws.
    • 2 Henn. Dig. p. 788, ch. III.
    The Supreme Court of the United States maintain the same rules, and employ language of a similar kind to express their conclusions. There must be a positive repugnancy between the provisions of a new law and the old, to effect a repeal by implication ; and even then the old law is only repealed to the extent of the repugnancy.
    Woods vs. U. S. 16 Pet. 342. .
    McCool vs. Smith, 1 Black, 459.
    It is manifest that the judge of the First District Court has performed his duty, and that there is no sufficient ground for the application the relator has made.
   The opinion of the Court was delivered by

Bermudez, C. J.

The relator was prosecuted before the First District Court for the parish of Orleans, for having in his possession, with intent of selling the same, a fractional part of a lottery ticket, the sale of which it is alleged is forbidden in this State under penalty of law.

He pleaded guilty, subsequently moved to withdraw his plea, but was not allowed that privilege. Sentence was about to be passed upon him, when he applied to this Court for relief. The case not being one appealable in character, the Court granted a certiorari, a provisional restraining order, and a rule to show cause why a perpetual prohibition should not issue. The object of the restraining order was to prevent-the judge of the First District Court from passing sentence on the relator.

The relator alleged in justification of the complaint lodged here and of relief sought, that the law under which he was prosecuted, pleaded guilty, and was about to be sentenced, and which he had believed was in force when he refused to defend himself and admitted the charge, had become a dead letter ever since the adoption of the present Constitution, which has effectually repealed it in its entirety.

The law in question was approved March 27th, 1879, and bears No. 44 of the acts of that year. It contains six sections. Its evident object was to forbid absolutely the vending of lottery tickets in this State ; and in order to accomplish that purpose it provided for the infliction of fine and imprisonment on the violators of its prohibitions. It was intended to have'a general effect .throughout the State, and made no exceptions whatever. It went so far as to withdraw the charter of a corporation up to then in existence, and which had legal authority to deal in the lottery business.

The article of the Constitution relied on as repealing this law, is in the words following:

“ The General Assembly shall have authority to grant lottery charters or privileges, provided each charter or privilege shall pay not less-than forty thousand dollars per annum in money into the treasury of the State, and provided, further, that all charters shall cease and expire on the first of January 1895, from which time all lotteries are prohibited in the State. The forty thousand dollars per annum now provided by law to be paid by the Louisiana State Lottery Company, according to the-provisions of its charter, granted in the year 1868, shall belong to the Charity Hospital of New Orleans, and the charter of said company is recognized as a contract binding on said State for the period therein specified, except its monopoly clause, which is hereby abrogated, and all laws contrary to the provisions of this article are hereby declared null- and void ; provided said company shall file a written renunciation of all its monopoly features in the office of the Secretary of State within.sixty days after the ratification of this Constitution.”

The intention of the Convention of 1879 was clearly to repeal that portion of the Act which contemplated the destruction of the corporation named in the article, and which was previously authorized to deal in lottery tickets, to authorize the further existence, up to 1895, of that institution, but to strip it altogether of its pretensions to a monopoly, apparently accorded it by the act under which it was organized. ■ It was the intention of the Convention to place on a footing of equality with this corporation all other individuals who might desire to deal in the •■same business, but on condition,' upon being chartered by the State, of -the payment of an annual license of not less than forty thousand dollars to the State. In order to render compliance with this condition •obligatory and effectual, it was necessary that there should be attached ■a sanction to the law. The Convention thought it unnecessary to embody one expressly in the article in question, for the reason that it •already was in existence in a statute then in force, i. e. in the act of 1879, already mentioned.

It is expressly provided by that article 167 that all laws contrary to its provisions are declared null and void.

Of course, such portions of that law as were inconsistent with the article of the Constitution were repealed; but is the act'of 1879 in each and all of its parts repugnant to the article of the Constitution under •consideration? The portions which it is claimed were repealed, are those which prohibited absolutely, without any exception, and under all ■circumstances, the vending of lottery tickets, and which inflicted a penalty for an infringement of prohibition.

The law does not favor .repeals by implication.

The insertion in article 167 declaring null and void all laws contrary to its provisions must be viewed as intended to retain in force the act of 1879, in so far as it was not derogated from by that constitutional enactment, and to lend assistance to its enforcement, for the protection, ■of organizations chartered by the State, which shall, as a prerequisite, have paid the required licenses, for the relief of the State and of its •charitable institutions.

This Court has no power to express any opinion or comment upon the morality or immorality of this constitutional provision. Its duty is to construe and to apply the law as it finds it in the organic and statutory enactments.

We find no irreconcilable discrepancy between the act and the article ■of the Constitution. We find that the Convention has merely derogated from the general prohibitory provisions of the act by making exceptions and conceding authority to the General Assembly to grant lottery charters or privileges on terms to be complied with as conditions precedent and sine guibus non, placing them all on,a. footing of equality -after such chartering and fulfillment of terms and conditions.

Construing the act of 1879 and the article of the Constitution ■together, so as to give full effect to each and all the parts of both, and blending them together, we consider that the law of Louisiana on the ¡subject of the vending of lottery tickets simply is :

The sale of lottery tickets in this State is absolutely prohibited, ■unless by organizations chartered by the State which, before dealing in that kind of speculation, shall have paid an annual license of not less than forty thousand dollars to the State. There shall exist no monqp-■oly for the sale of such tickets or doing of such business. Individuals violating the law by selling lottery tickets, or dealing in the lottery business, without having previously obtained a charter, and paid the required license, in the manner provided by law, shall be prosecuted and punished by fine and imprisonment. The Louisiana State Lottery Company, previously in existence, shall continue its operations, on abdicating all its pretensions to a monopoly'and on complying with the requirements touching the payment of the license.

Finding as we do, that the punitory section of the act of 1879 has not been abrogated, as far as it affects individuals selling lottery tickets, or dealing in the lottery business, ivho have not previously obtained a charter and paid the required license, we conclude that’the relator is not entitled to protection, for the reasons alleged by him against the apprehended sentence of fine and imprisonment.

It would be truly unjust to permit individuals who have not formed themselves into a corporation chartered by the State and not paid aDy license, to enjoy the same privileges as those awarded to a corporation chartered by the State, and which has paid the required license.

It is therefore adjudged that the restraining order heretofore made be dissolved, and that the application for a perpetual prohibition be refused at the cost of relator.

On ApplicatioN foe Reheaeing.

It is elementary that laws are repealed reversely or impliedly. Authorities to establish that proposition are entirely superfluous. Nothing is better settled than that the law does not favor repeals by implication. Statutes, unless expressly recalled, or absolutely destructive, the one of the other, will stand and co-exist. Where statutes and constitutional provisions can be so construed as to be made to harmonize and to prove ancillary, the one to the other, for the accomplishment of the object in view, it would be wrong to annihilate either. The Court would be powerless to do so.

We have found no inconsistency between the remaining sections of the act of 1879 and art. 167 of the present Constitution, and after a new and earnest effort to ascertain a conflict between them, we have been unable to change our previous opinion.

By the act of 1879 an absolute prohibition was enacted against the dealing in lottery business, and a penalty was provided for infringement of the prohibition. By art. 167 the absolute prohibition was changed into a relative one. Blended together, act of 1879 and art. 167 mean:— •that there shall hereafter be no unrestrained dealing in lottery operations, under penalty of fine and imprisonment; but that dealing in the lottery-business will be tolerated when carried on by corporations chartered by the State and paying an annual license of no less than forty thousand dollars: consequently, that whoever shall otherwise deal in that sort of business, without having been chartered and without having paid the license, shall be liable to punishment.

Article 167 formally recognizes the Louisiana State Lottery as an institution chartered by thp State, and determines the term of its existence, but without any right of monopoly.

The framers of the Constitution did away with the exclusive privilege accorded previously to that organization, and provided that, hereafter, all persons wishing to deal in the lottery business shall have the right to do so, as well as the Louisiana State Lottery Company, on obtaining a charter from the State and paying a license, as pure quietus. This was done to place all on a footing of equality.

A different construction of the act of 1879 and of art. 167 would authorize all individuals to deal in that kind of speculation without forming themselves into a corporation chartered by the State, and without paying a license. The Louisiana State Lottery Company could then repudiate its charter, exonerate itself from the payment of a license, the amount of which goes to a charitable institution essentially necessary-for the relief of suffering humanity and without adequate means of' self-sustenance. It was, no doubt, wise in the State to regulate reprehensible, but, perhaps irrepressible, inclinations for that sort of speculation, so as to draw from those who follow them, — as it were, — honey from, poison, for the betterment of the destitute classes of society. It cannot be plausibly claimed, in the least degree, that the Convention intended to do away with those means of relief which could not be realized if the penal clause in the act of 1879 were considered as being now a dead-letter.

No one can claim to enjoy the privileges exercised by the Louisiana. State Lottery Company without, like it, obtaining a charter and paying a license.

The authorities quoted by the amici curice in their brief for a rehearing, from 15 Ill. 233, 3 Mich. 387,1 Cal. 441, 3 Cal. 328, in addition to those previously referred to : 10 M. 575, 9 R. 413, 6 L. 135, 1 Corns. N. Y. 17, 16 Peters U. S. 342, 1 Black 470, are to the effect that, in cases of provisions of law repugnant and contradictory to each, the more recent repeal the former. The rulings are made mostly|in cases in which the acts could not co-exist at all without contradiction in every particular. The first authorities are from cases in which — after a prohibition had been enacted — -the legislature had absolutely and unconditionally recalled the prohibition and legalized acts previously forbidden. In the present. instance, the act of 1879 was not absolutely or unconditionally repealed. It was relatively or conditionally repealed. The penal provision was not therefore peremptorily done away with. It remains, and is to be enforced against individuals dealing in the lottery business otherwise than in the name of bodies chartered by the State and paying license. The penal provision will be inoperative against individuals dealing in that business in the name of chartered institutions paying license.

The Court has thus construed again the act of 1879 and art. 167, and has done so, in their mind, “ in favorem libertatis civis.”

The application for a rehearing is refused.

Mr. Justice Todd having taken no part in the previous opinion, ■owing to absence, abstains from concurrence in the present one.


text:
    No. 7875.
    State of Louisiana vs. William Faulkner.
    The Court will presume, when an Information is signed by the Assistant District Attorney of the Parish of Orleans, under the provisions of Act "No. 27 of the Legislature of 1878, that ho performed the duty of the District Attorney, owing to the absence, sickness or inability of that officer.
    Although two distinct articles are alleged to have been stolen, the taking of them constitutes one distinct offence, as to the thing, time and place, and the Information is not defective for uncertainty or duplicity.
    A PPEAL from the First District Court, parish of Orleans. Abell, J.
    J. C. Egan, Attorney-General, for the State,’Appellee.
    The Appellant unrepresented.
   The opinion of the Court was delivered by

Levy, J.

The defendant appeals from the sentence and judgment •of the Court whereby he was, after verdict of jury, condemned to two years imprisonment at hard labor in the penitentiary. He was prosecuted for the crime of petit larceny, under an information filed by the Assistant District Attorney of the parish of Orleans.

The grounds on which he relies in his motion for arrest of judgment are: That the information is “ no information at all, because the law» •of the State of Louisiana require that all indictments or informations shall be in the name of and signed by the District Attorney.” Act. No. 27, session of 1878, approved February 18th, 1878, authorizes the District Attorney of the First Judicial District to appoint an Assistant District Attorney for said First Judicial District, and enacts “that it shall be competent for the said Assistant District Attorney, during the absence from the district, or the sickness or inability of the District Attorney* to perform all the duties of the District Attorney.”

We are justified in the conclusion that the Assistant District Attorney performed the duty of the District Attorney owing either to the absence, sickness, or inability of that officer. Article 134 of the Constitution of 1879 authorizes the appointment by the District Attorney of an assistant. The defendant also contends in his motion that the information charges two distinct offenses in one count, viz., the stealing of a pocket-book valued at sixty cents, and two dollars and eighty cents lawful money of the United States, and that no value is alleged to said sum, and it is not described with sufficient legal certainty. Although two distinct articles are alleged to have been stolen, the taking of them constitutes one distinct offense as to the thing, time, and place, and the information is not defective for uncertainty or duplicity. The value is clearly and distinctly alleged.

The judgment of the lower court is affirmed.