author: Fenner, J.

text:
    No. 11,156.
    Martin Brouillette et al., vs. The Judge of the Tenth District Court, Parish of Avoyelles.
    1. Ordinarily, in criminal cases, Our supervisory jurisdiction is only exercised when there is no remedy by appeal; but inasmuch as it can not be determined till after trial and sentence whether this cause will be appealable or not, and as the question relates to a change of venue involving the necessity of forcing relators to meet a trial in a parish different from their domicil and subjecting tbe State to the expense and trouble of a vain trial, the jurisdiction is properly invoked.
    2. The Act 95 of 1876 repealed the former law authorizing the prosecuting attor neys and district judges to order a change of venue whenever in their own judgment it was necessary in order to secure a fair trial, and requires that change of venue shall be ordered only after its necessity has been “established by legal and sufficient evidence,” which contemplates a contradictory trial of the issue and the hearing of evidence adduced by both parties.
    3. An order granted on the simple motion and affidavit of the district attorney without evidence adduced in support of it and without opportunity afforded to defendants to adduce evidence, is irregular, null and void, and will be set aside in the exercise of the supervisory jurisdiction.
    ^PPLICATION for Certiorari and Prohibition.

      Edwin G. Hunter and A. Balbin for the Relators.

      M. J. Cunningham, Attorney General, and John C. & Charles A. Wickliffe for the Respondent.
   The opinion of the court was delivered by

Fenner, J.

This is an application for the exercise of our supervisory jurisdiction, by writs of certiorari and prohibition, to annul certain proceedings had before the respondent judge in a criminal prosecution against the relators.

Ordinarily we exercise such jurisdiction only in unappealable cases, leaving errors committed, in appealable causes to be corrected, in ordinary course, on appeal.

But in the instant cases it can not be determined whether they are appealable or not until after trial and sentence. Article 81 of the Constitution grants the right of appeal in criminal cases only when “ the punishment of death or imprisonment at hard labor may be inflicted, or a fine exceeding $300 is actually imposed.”

The statute, on which these prosecutions are based, authorizes a penalty of imprisonment in the parish jail not exceeding one year and a line not exceeding $2500.

The sentence might impose a fine not exceeding $300, in which case there would be no right of appeal.

While we abstain from laying down any rule authorizing appeals to our supervisory jurisdiction in all cases of this kind, and might, perhaps, consider it better in ordinary eases to await the conclusion of the trial and sentence before resorting to our powers of supervision in case the sentence should prove unappealable, we think that, under the peculiar facts of this case, where the issue is as to the validity of a change of venue, where relators are forced to meet a trial in a parish other than that of their domicil, and where the State is exposed to the labor and expense of a trial which will prove fruitless, the interests of justice will be promoted by an immediate determination of the question presented, in order that irregular proceedings may be corrected and legal ones substituted therefor.

Various irregularities are assigned, in the application, affecting the arraignment and pleas, as well as the change of venue; but, as to none of them except the change of venue does it appear from the record that any objection was urged before the respondent judge, or was overruled by him. On the contrary, so far as the record shows, the defendants, attended by counsel, voluntarily waived arraignment and entered their pleas of not guilty before the judge sitting out of term and as a committing magistrate. We shall adhere to our rule, often announced, that we will not exercise our supervisory jurisdiction to correct errors not complained of in the lower court and for which relief has not been there first sought and denied. But the order granting the change of venue was made over the objection of relators urged at time the order was made, overruled by the judge, and embodied in a bill of exception signed by him.

It appears that at a sitting of the court out of term, and immediately after the filing of informations against the relators, and after they had voluntarily waived arraignment and entered their pleas of not guilty, the district attorney presented a motion for a change of venue on the ground that the state of public sentiment in the parish was such that a fair and impartial trial could not be had, which motion was accompanied by his affidavit to the fact stated. The judge, without hearing any evidence, immediately granted the order, and notwithstanding the relators, by counsel, objected thereto, maintained the same, reserving counsel’s right to embody the objections in a bili of exceptions, which was accordingly done.

It was formerly the law, under the Act of 1868, embodied in Secs. 1021 and 1172 of the Revised Statutes, that the judge might order a change of venue upon the simple application of the State’s attorney, or of his own motion, whenever satisfied that a competent jury could not be had in the parish. But by Act 95 of 1876 this law was repealed and, in lieu thereof, it was enacted: “ That whenever it shall be established, in any criminal prosecution, by legal and sufficient evidence, that a fair and impartial trial can not be had in the parish where the case is pending, the judge of any court having jurisdiction of the case may, upon application of the Attorney General, district attorney or district attorney pro tempore, for a change of venue, grant such application.”

This statute so obviously contemplates a trial of the issue on evidence to be adduced, including the right of accused to cross-examine the witnesses of the State, and also, if so desired, to produce witnesses in their own behalf, that we are bound to conlude that the learned judge must have inadvertently overlooked its existence.

The mere affidavit of the district attorney attached to the motion is certainly not the legal and sufficient evidence ” required by the statute, nor is the judge’s own personal knowledge of the sentiment of the community sufficient. He could act only on “ legal and sufficient evidence,” and not.upon the mere opinions of the district attorney or of himself, however conscientious and even well founded they might be.

The very object of the Act of 1876 was to repeal the law which authorized the judge to order a change of venue on the strength of such opinions, and to require that the necessity and propriety of a change of venue should be otherwise established by “ legal and sufficient evidence.” If the proceeding in the present case should be maintained the repeal of the former law would have been useless, and the new law would be held vain and without effect.

Reference to Sec. 1028, Revised Statutes, regulating proceedings where the application for change of venue is made by defendants, shows the nature of the proceedings contemplated, clearly involving a contradictory hearing of the parties and their witnesses.

It is therefore adjudged and decreed that the order of the respondent judge granting a change of venue be decreed to be irregular, null and void, and that the same now be set aside, and that ail further proceedings based on said order be enjoined and prohibited, and that the cases be reinstated upon the docket of respondent’s court to be proceeded with according to law.


source: Caselaw Access Project

license: Public Domain

text:
    No. 11,158.
    The State ex rel. O. P. Normand et al. vs. Judges of the Tenth District Court, etc.
    y^PPLICATION for Certiorari and Prohibition.

      E. North Cullom for the Relators.

      M. J. Cunningham, Attorney General, and John C. & Chas. A. Wickliffe for the Respondents.
   The opinion of the court was delivered by

Fenner, J.

This case is similar in essential particulars to that of Brouillette et. al., No. 11,156, just decided.

For the reasons given in that opinion, it is ordered and decreed that the order of the respondent, Judge A. V. Coco, granting a change of venue, be decreed to be irregular, null and void, and that same be now set aside; that further proceedings based on said order be enjoined and prohibited; and that the cases be returned to and reinstated on the docket of the court in Avoyelles parish, to be there proceeded with according to law.


text:
    No. 11,145.
    The State ex rel. Joseph Gebelin vs. George W. Buckner, Judge, etc.
    y^PPLIOÁTION for Mandamus.

      Kernan & Layoook for the Relator.
   The opinion of the court was delivered by

Fenner, J.

The relator represents that in the succession of Mrs. Lange he presented a will of the deceased for probate; that the probate was opposed by a party who claimed to be an heir, and also by the attorney for absent heirs who had previously appointed; that the trial of the issues thus arising was assigned by the judge for the 22d day of December; that the attorney for absent heirs made a motion to cancel said assignment; that this motion was heard contradictorily between the parties, and, after hearing, the judge canceled the assignment, which relator claims was tantamount to a continuance of the cause granted on the application of a person without interest and on insufficient showing, and that such continuance works an irreparable injury to relator. He therefore prays for a mandamus commanding the judge to proceed to the trial on the day assigned.

The judge answers that he granted the motion to cancel assignment only after hearing the parties and for the reasons: (1) That the motion was not made for unnecessary delay; (2) that the court was satisfied of the existence of an absent heir; (3) that a reasonable delay would prejudice the interests of no one and would better attain the ends of justice. He further states that the parties were advised that the delay would not be great, but that the cause would be heard at the next term of court, in January.

It would be a gross abuse of our supervisory jurisdiction to interfere with the judge’s discretion in such a matter.

Nothing in Article 1646, C. O., interferes with the judge’s power, under Article 333, C. P., to fix a day, place and hour for the probate, of which resident heirs must be notified, and although absent heirs are not entitled to notice except through counsel appointed to represent them, there is no mandate of the law preventing the judge from granting reasonable delay when he considers that the interests of justice require it.

We can not interfere with such exercise of his discretion.

Mandamus denied.


author: McEnery, J.

text:
    No. 11,100.
    Succession of Ann E. Auld.
    A question of fact only is presented in this case.
    From the testimony in the record the fee of the attorney for absent heirs is fixed at $700.
    APPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.

      C. 8. Bice for Appellant.

      A. B. Phillips contra.

   The opinion of the court was delivered b5

McEnery, J.

This is an appeal from the judgment amending the account filed in the succession increasing the fees of the attorney for absent heirs from $250 to $700, upon opposition made by the attorney for absent heirs.

From the testimony it seems that the services of the attorney for absent heirs inured to the benefit of the entire succession. He was active and energetic in his services. He communicated with the heirs or legatees. He attended the taking of the inventory for several days, was present in the District Court and in the Supreme Court in the litigation connected with the succession. He joined in the petition for appeal, signing with the attorney for the testamentary executor of Ella W. Auld, and of Henry A. Remley, her husband, guardian, administrator, etc.

On the account his fee was fixed by the accountant at $250, although there was nothing distributed through or by him to absent heirs, thus recognizing that he rendered services to the entire succession.

Two prominent lawyers of the city in their testimony and the judge of the lower court state that the fee of the attorney of absent heirs was worth $700.

We see no reason to disturb the judgment.

Judgment affirmed.


author: Nicholls, C. J.

text:
    No. 11,170.
    The State ex rel. A. L. Bourgeois vs. L. LeBourgeois, President of Police Jury, Parish of St. James.
    1. Tiie remedy invoked by relator embodied in Section 852 of tlie Revised Statutes, which, having reference to official bonds, declares that “IPor the acceptance of the sureties offered upon the bond the assent shall be unanimous, and on refusal to accept any surety, the district or parish judge shall have the power upon application in vacation, as well as in term time, to compel them to show cause why they do not accept such surety; and in all such cases the parties whose duty it is to judge of the sureties offered shall, on demand of the party complaining, certify to the judge their decision and the evidence on which it was based, whose duty it shall be to decide immediately thereon and from his decision in the case there shall be no appeal,” though styled in the proceedings a “mandamus,” is not strictly such; it is a special statutory remedy expressly authorizing the district judge to review the action of certain officials in respect to a particular matter, and on due and legal cause not having, in his opinion, been shown to justify the same, to reverse that action, to pronounce in the case the decision which those officers should have made and to order them to do that which they should have done originally.
    2. The contention that so much of the section as refuses an appeal is unconstitutional in that it is in conflict with Article 81 of the Constitution which guarantees an appeal in all cases where’the matter in dispute is over two thousand dollars, exclusive of interest, is not well founded. Defendant has no pecuniary interest in the litigation and maintains his right of appeal only as a representative of the State and parish. As such he has just such rights and is charged with just such duties as are imposed upon him by the particular statute under which he is acting. The clause objected to, so far as the State and parish are concerned, is not a limitation upon or a denial of the constitutional right of appeal, but the designation of a particular class of cases as to which the Legislature has declared that for the purpose of enabling officers to qualify as such, it is not deemed necessary for the safeguarding of the in terests of the State and parish to pursue an investigation as to the sufficiency of the sureties on the bonds .tendered by them beyond the action of the district judge. Act No. —, of 1878, authorizing the Governor to direct the institution of suits subsequent to the induction of officers to test the sufficiency of their bonds, guarantees the State and parish against any original mistake in approving and accepting them.
    3. Defendant but for Section 852 of the Revised Statutes would have been entitled to appeal. I-Ie had the legal right to raise an issue in the lower court as to whether or not that section had been repealed, and whether by such repeal his conclusions as to the solvency of the bonds tendered to him for acceptance were not final and free from revision by the district judge, particularly (as he claimed) under a writ of mandamus, and the lower court having ruled adversely to him, an appeal lies for the determination of those restricted issues.

      4. Section 352 of the Revised Statutes has not been repealed, and under its terms no appeal lies from the decision of the judge upon the merits of the rule.
    5. The various statutes of the State between the adoption of the Revised Statutes and that of the Constitution of 1879 did not expressly repeal Section 352, and there are no provisions in any of them inconsistent with it — they could all be read together harmoniously as a single act. There is nothing in the section inconsistent with the Constitution of 1879, and under Article 258 of that instrument it remained unimpaired by its adoption.
    6. The terms of Article 118 of the Constitution relative to a subsequent enactment by the general law on the subject of sheriffs’ bonds are not to be enlarged by - construction to reach a result obviously not within its intendment. Its adoption was due to the merging by the Constitution of the two offices of sheriff and tax collector and to the making certain that legislation should be adopted to meet the change thus operated. It did not carry with it a peremptory command to the General Assembly to legislate de novo upon a matter already provided for and needing no alteration to conform to new conditions, and that body has not construed it to be its duty so to do. Until it shall hare done so, matters must be governed by existing laws.
    7. The construction contended for would require the court to declare a general law repealed by a special statute on a particular subject by mere implication, and by such implication not only to reach the result aimed at, and declared by Article 118 of “fully securing the State, the parish and all parties hi interest,” but of breaking down salutary checks and balances now existing, productive of and attaining that very end.
    APPEAL from the Twentieth District Court, Parish of St. James. Guión, J.

      Sims <& Poché for Relator and Appellee:
    On Motion to Dismiss.
    1. The decision of the district judge decreeing the sufficiency of the sureties on the bonds of relator as sheriff and tax collector is final so far as the defendant is concerned, and no appeal lies therefrom. R. S., Sec. 352. Defendant is without interest.
    2. Section 352, Revised Statutes of Louisiana, has not been repealed by any subsequent legislation, either expressly or by implication. Act No. 11 of 1877, p. 15, amends and re-enacts Sec. 351, R. S , but does not touch Sec. 332. Act No. 52 of 1880, p. 50, only repeals conflicting laws; but the provisions of said Section 352 are not in conflict or inconsistent therewith. The former is a special law relating to sheriffs and ex-officio tax collectors, the latter a general law for the purpose of testing the sufficiency of sureties on bonds of all officers referred torn the previous section, and the two may be read together in perfect harmony..
    3. The Revised Statutes of this State, approved March 14,1870, is a codification of laws, each section of which is a general, independent law upon the subject matter referred to therein Except as to glaring or patent inconsistencies in particular provisions, the Revised Statutes remained in force after the adoption of the Constitution of 1879. Const., Art. 258.
    4. The repeal of laws by implication finds no favor in the jurisprudence of this State. C, C., Art. 23; Hennen, Vol. 1, p. 788, No. 4, and cases cited; 16 An. 351-395; 5 An. 22; 30 An. 399; 39 An. 541, 439, 515; 12 An. 498, 805; 34 An. 441; 24 An. 155; 20 An. 139; 13 An. 329, 383; 4 An. 366; 31 An. 294; 40 An. 366.
    On tiie Merits.
    1. Relator has abundantly justified the sureties on his bonds, and the defendant lias added cumulative proof by filing in evidence the testimony of his witnesses taken in New Orleans under commission.
    2. The decision of the district judge, who saw and heard the witnesses, is entitled to great weight. 6 La. 31; 13 La. 412; 43 An. 61, 855.

      F. G. Zacharie for Respondent and Appellant:
    A mandamus will not lie to control the discretion of an officer.
    “In the matter of approving official bonds, the duty of deciding upon the sufficiency of the sureties involves the exercise of such, judgment and discretion as to be of a quasi judicial nature, that the power will not be controlled by mandamus.55 Eng. and Am. Enc. of Law, Vol. 14, p. 168; 65 Ala. 480; 76 Ala. 321; 52 Ala. 87; 13 Atl. Rep 109.
    Act No. 52 of 1880, passed in obedience to the mandate of Art. 118, Const, of 1879, ordering a revision of the existing law on the subject of sheriffs and tax collectors bonds, and requiring the passage of a new and general law on the subject of the amount, form, condition and mode of approval of such bonds, repeals that portion of Sec. 352 of the Revised Statutes of 1870 allowing an appeal to the District Court by the omission of that clause from the new statute.
    A subsequent statute revising the whole subject matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must, on principles of law as well as of reason, operate to repeal the former. If such a statute omits anything contained in a former statute» the portion omitted is repealed, as the intention of the Legislature is evident to strike it out by omitting it. Smith on Stat. Cons., Sec. 786; U. S. Dig., First Series, 11-12, Pri. Tax; Endlich on Interp. of Statutes, Sec. 201, p. 270; Id., p. 271, See. 202; Id., p. 537, Sec. 384; Sutherland on Stat. Cons., p. 207, Sec. 154; Id., Sec. 155, p. 209; Cooley on Cons. Limit.,6thEd., p. 183, N. 4; Smith on Stat. Cons., Sec. 786, and authorities cited by these authors; 39 N. J. Eq. 169; 3 >T. Y. S. 890; Id., 1892, i?e Alexander; 7 2L Y. S. 860; 1 Pick. 45; 26 W. Va. 63; 6 How. Pr. 282; 10 Nev. 332; 1 Dakota, 22; 21 Tex. 736; 42 Maine 55; lPickle (Tenn.) 500; 11 An. 470; 11 An. 442; 12 An. 431; 22 An. 275; 37 An. 580; 40 An. 601.
    The rule of interpretation of constitutions is the same as that of statutes. 5 It. 367; 13 An. 345*; 33 An. 35.
    Article 352, Revised Statutes of 1870, is in conflict with Article 81 of the Constitution of 1879, in that it deprives a litigant of appeal on a matter exceeding $2000, and is therefore repealed thereby.
    A representative of a parish or State, although he has no personal pecuniary interest in litigation involving an amount in excess of $2000, has the right of appeal. 23 An. 596.
    A surety on an official bond must be a person able to contract and of property sufficient to answer for the amount of the obligation. R. O. C. 3042 ; 36 An. 714.
   'The opinion of the court was delivered by

Nicholls, C. J.

On July 5, 1892, a petition was filed in the Twentieth Judicial District Court for the parish of St. James, in the name of the State of Louisiana, on the relation of A. Levaiu Bourgeois, and of A. Levain Bourgeois, in which it was alleged that the relator was duly elected, at the last general election, as sheriff and ex-offioio tax collector in and for the parish of St. James; and that on the 4th day of June, 1892, he received his commission as such from the Governor of the State; that soon after the receipt of his commission he proceeded to make out his bond in accordance with law for the faithful performance of his duties as sheriff and as ex-offioio tax collector respectively, and executed the same with good and sufficient securities, in proper form, on the 11th of June, 1892. That on the 18th of June, 1892, relator presented said two bonds, one for the sum of $6000 and one for the sum of $20,000, executed as aforesaid to Louis Le Bourgeois, president of the police jury of the parish of St. James, for his approval and acceptance, who examined said bonds and stated that he would give an answer later on; that relator was kept waiting for said answer until the 25th of June, 1892, at which date said president of the police jury informed relator that he declined to accept or approve said bonds on the ground that some of the sureties were not sufficient, but refused to state what sureties on said bonds, or either of them, were, in his opinion, insufficient, although earnestly requested so to do.

Relator further alleges that on the 28th of June, 1892, he again presented bonds for the faithful performance of his said official duties, with sufficient securities, in the sum of $6000 and $20,000, respectively, to the said Le Bourgeois, president of the police jury of St. James, and requested his acceptance and approval thereof, but said president put relator off to another day, saying he would be at the court house, if possible, on Friday, the 1st of July, 1892, to take action with respect to said bonds; that said president of the police jury did not come to the court house of St. James until Saturday, the 2d of July, 1892, at which time he informed relator that he refused to accept or approve said bonds on the ground that some of the sureties thereon were, in his opinion, not sufficient, but he refused to state the names of such sureties.

That since the occurrence of the Belmont crevasse, in St. James parish, communication with the president of the police jury has been difficult and inconvenient owing to the fact that he has been temporarily residing in the parish of St. John the Baptist.

Relator further alleged that on Monday, the 4th day of July, 1892, he proceeded to the parish óf St. John the Baptist and presented bonds, with sufficient sureties and executed according to law, to said president of the police jury in person, at his temporary residence, and requested him to accept and approve said bonds for the faithful performance of his duties as sheriff and ex-officio tax collector of the parish of St. James, to which he had been duly elected, but said officer refused to accept or approve said bonds solely on the ground that some of the sureties on said bonds were insufficient securities; that later on the day of said 4th of July, 1892, said president of the police jury of St. James came to the court house to attend a meeting of the board of reviewers of said parish, and thereupon relator caused to be presented to him for his acceptance and approval said two bonds which relator had presented to him earlier in the day as aforesaid. That although earnestly urged and requested to accept and approve said bonds while in said court house, to the end that relator might not be illegally and unjustly deprived of his said office, and although said bonds were executed according to law, with unexceptionable securities, said president of the police jury persisted in refusing to accept or approve said bonds, and refused to assign any reason therefor except that in his opinion some of the sureties on said bonds were not sufficient. Relator further alleged that the action of said president in failing to perform his duty under the law, and refusing to accept and approve said bonds of relator is arbitrary and illegal; that owing to the arbitrary and illegal acts of said president relator has been compelled to file his bonds, with solvent secureties, in due form, in the office of the clerk of court, ex-officio recorder for said parish, with the written acceptance and approval thereof of the said clerk of court, and the said bonds have been put of record; that said bonds fulfil all requirements of law, and that it was the duty of said officer to accept and approve said bonds, and his failure so to do might cause the relator irreparable injury; that the office of sheriff of said parish was worth more than $2000 a year, and the effect of the arbitrary and illegal action of said president might result in depriving relator of his said office of sheriff without due process of law; that relator had done all that it was possible for him to do to qualify according to law as sheriff of said parish, and the only formality wanting, without any fault or negligence on the part of relator, is the written acceptance and approval of relator’s bonds by said president, which acceptance and approval are being withheld illegally, arbitrarily, and without any cause whatsoever. That relator’s only remedy was a writ of mandamus; he therefore prayed for such writ commanding the said president to accept and approve in writing the said bonds of relator, or to show cause to the court why he failed to approve and accept said bonds, and why said writ of mandamus should not be made peremptory.

. An alternative writ issued as prayed for, returnable on the 13th July, 1892.

On that day the defendant in rule appeared and excepted to the proceeding on the ground that the court was without jurisdiction ratione materise, and on the ground of no cause of action, inasmuch as the petition filed showed on its face that exceptor failed to approve said bonds tendered as insufficient in the sureties, and not such as in his judgment and discretion as to render the State secure as required by law, and that such discretion being vested in defendant as president of the police jury under Sec. 4, Act 52 of 1880, is not reviewable by the District Court, and the writ of mandamus would not lie.

This exception was overruled by the court — the court basing its action on Sec. 352 of the Revised Statutes.

Defendant under benefit and reservation of this exception filed an answer denying all and singular the allegations of the petition, except that he admitted that he had refused, and still refused, to approve the bonds tendered because he did not deem the same good and sufficient, and because the sureties thereon were not good and sufficient to respond to the amounts for which the said sureties obligated themselves in the discretion vested in him under the section of the law already referred to.

On the 26th of July, 1892, the district judge proceeded, without further objection on the part of the defendant, to a trial of the rule on its merits; evidence being adduced as to the solvency of the sureties.

On the 3d of August, 1892, the court rendered a judgment in favor of the relator, ordering the president of the police jury of the parish of St. James to approve and accept the bonds tendered, the court declaring that “ the relator had adduced due proof of the solvency of the sureties on his bond as sheriff and ,tax collector, and that it was satisfied that all said sureties are good and solvent, and his bonds are such as the law requires.”

The defendant has appealed, and the relator has filed in this court a motion to dismiss the appeal on the ground that the decision of the District Court is final and no appeal lies therefrom under the provisions of Sec. 352 of the Revised Statutes, and on the further ground that the appellant is without any pecuniary or personal interest in the matter of this controversy — that whilst relator avers the office is worth $2000 a year, appellant does not claim the office, 'nor is the right to the office an issue in the case.

The question of the right of appeal is so much dependent upon the solution of several questions of law raised by the parties outside of that motion, in relation to the matters involved in the litigation in the lower court, that those questions should be first mentioned and considered in order to give a proper explanation of the action of the court on the motion to dismiss.

At the time of the adoption of the Revised Statutes, under Sec. 351 of that revision, all bonds of public officers (except the Treasurer, Auditor, parish recorders and clerks of district courts) were to be accepted by the parish recorder, the clerk of the court and the president of the police jury of the parish for which such officers were elected or appointed, and in which the sureties resided.

Section 352 of the Revised Statutes provided: “For the acceptance of the sureties offered upon the bond the assent shall be unanimous, and on refusal to accept any surety the district or parish judge shall have the power upon application in vacation as well as in term time to compel them to show cause why they do not accept such sureties, and in all such cases the parties whose duty it is to judge of the sureties offered shall, on demand of the party complaining, certify to the judge their decision and the evidence upon which it was based, whose duty it shall be to decide immediately thereon, and from his decision in the case there shall be no appeal.”

By Act No. 11 of 1877, entitled “An act to amend and re-enact Sec. 351 of the Revised Statutes of the State of Louisiana in relation to bonds of officers — approved March 14, 1870,” some slight changes were made in the section amended and re-enacted, to the effect that the approval of two out of the three officers shall be sufficient for the approval and acceptance, and that the bond should be recorded.

Section 2 of the act repeals all laws or parts of laws contrary to the provisions of the same.

A later act (No. 50) of the same session enacts in its first section that the bonds of the State tax collectors should thereafter be accepted by the Auditor of Public Accounts, and its third section declares “ that all laws requiring the bonds of the State tax collectors to be approved or accepted by any other officer than the Auditor of Public Accounts be and the same are hereby repealed.”

In 1878 the General Assembly passed an act entitled “An act to authorize the institution of suits to test the sufficiency of sureties on official bonds.” By its first section the Governor is authorized to direct the institution of suits by the Attorney General, the district attorney or district attorney pro tempore, to test the sufficiency and solvency of the securities of any ^officer, State or parochial, required to give bond, even after the approval of the bond by those whose duty it is made to pass upon the same, and by its fourth section it is enacted “ that nothing in this act shall be construed to impair any remedy presently existing for testing official bonds.”

Such was the condition of the law when the Constitutional Convenvention met in 1879.

Article 118 of the Constitution of 1879 merged the office of tax collector with that of sheriff in the country parishes, and provides:

“ He shall give separate bonds for the faithful performance of his duty in each capacity.”

Until otherwise provided, the bonds shall be given according to existing laws. The General Assembly after the adoption of this Constitution shall pass a general law regulating the amount, form, condition and mode of approval of such bonds, so as to fully secure the State and parish, and all parties in interest.

In obedience to this constitutional mandate the first Legislature after the Cons‘ibution passed Act 52 of 1880, entitled “An act relative to sheriffs, ex-officio tax collectors, and to the bonds to be furnished by them (the parish of Orleans excepted).”

The fourth section of the act is as follows:

“Beit enacted, etc., That the sureties on all bonds given by sheriffs and ex-officio tax collectors of State and parish taxes (the parish of Orleans excepted) * * * shall be approved and accepted by the president of the police jury and the clerk of the District Oourt of the the parish if they deem the same good and sufficient, and shall be authenticated by the attestation of two witnesses and the signature of the clerk of the District Court of the parish, and shall also be recorded in a separate book kept for that purpose, and be also registered on the mortgage record of the several parishes where the principal obligee may own immovables.” * * *

The sixth section of the act repeals all laws or parts of laws in conflict with the provisions of the same.

By Art. 158 of the Constitution it is provided that “ All laws in force at the time of the adoption of this Constitution and not inconsistent therewith shall continue as if said Constitution had not been adopted.”

With the articles of the Constitution and the various statutes bearing on the subject matter before us we are prepared to judge of the merit of the different contentions of the parties.

The relator predicates his action upon Sec. 352 of the Revised Statutes, which he maintains is still in full force, and he further maintains that the district judge having passed favorably upon the solvency and sufficiency of the sureties no appeal lies from his decision under the terms of that section.

The defendant on the other hand takes the position that Sec. 352 has been repealed by subsequent legislation.

On this subject he says that Art. 118 of the Constitution shows the intent and desire of its framers to have the Legislature revise by a new and general law the existing laws of the State on the whole subject, and to provide anew for the amount, form and confection of the bond as well as the manner of approval.

That they intended to continue ‘ ‘ existing laws ’ ’ on this subject only until otherwise provided. That when, in obedience to the Constitution, Act No. 52 of 1880 was adopted, it provided for the amount, the form, the giving of sureties — their qualifications — and the manner of the approval of the bonds, thus covering the four points mentioned by the Constitution, specially “ the mode of approval.” That relatively to this last point the law was couched in the following language in Section 4: “ Said bonds shall be approved and accepted by the president of the police jury and the clerk of the District Court of the parish if they deem the same good and sufficient; that the last section (6) repeals all laws and parts of laws in conflict with the provisions of this act.” That thus the Legislature, in obedience to the constitutional mandate, renewing and revising all prior laws on the subject matter, with the act of 1855 before them, and reenacted in the Revised Statutes, struck out by omission the clause in the Revised Statutes and act of 1855 allowing any appeal to the courts, and left it with the president of the police jury and clerk of the court to accept and approve the bond “ if they deem the same good and sufficient.” That the discretion is thus vested in these officers, and there is nothing in the new law which intimates or insinuates that this discretion can be limited, controlled, revised or reviewed by the courts, particularly by writ of mandamus.

On the question of the right of appeal, defendant, in his brief, says: “If the court hold that Section 852 is repealed by the Act 52 of 1880, it disposes of the whole ground, but that if this position be not maintained, it is plain that so much of Section 852 as deprives a litigant of appeal to this court is unconstitutional, as in conflict with Article 81 of the Constitution, which provides, as amended, that the jurisdiction on appeal to this court “ shall extend to all cases where the matter in dispute or the fund to be distributed, whatever may be the amount therein claimed, shall exceed $2000 exclusive of interest ; that true it is that he has no personal pecuniary interest, but that he stands in a representative capacity for the State and parish, and they have an interest, and a very vital pecuniary interest, which gives them right to appeal.”

For reasons hereinafter stated we hold that Sec. 352 of the Revised Statutes is not repealed. Relator therefore was entitled to the remedy provided by that section. The district judge had the power and authority, on application of relator, to rule the defendant to show cause why he did not accept the sureties offered, and it was “his duty to decide thereon immediately.”

He did decide, after evidence contradictorily taken between the parties, that the sureties offered were good and sufficient.

The section cited, in express terms, declares that from his decision and order in the premises there shall be no appeal. Defendant’s contention that this portion of the act is unconstitutional as being in conflict with Art. 81 of the Constitution, which extends the right of appeal to all cases where the amount claimed shall exceed $2000 exclusive of interest, is not well founded. Defendant concedes that he has no personal pecuniary interest in the litigation, and maintains his right of appeal as representing the State and the parish of St. James, but he overlooks the fact that as so representing them he has just such rights and is charged with just such duties as are imposed upon him by the particular statute under which he is acting. The clause objected to, is not (so far as the State and parish are concerned) a limitation upon or denial of the constitutional right of appeal, but the designation of a particular class of eases as to which the Legislature has declared that in the opinion of that body, the State’s interest are sufficienty safeguarded when, after the sureties tendered upon official bonds shall have been first submitted to the president of the police jury and the clerk of court, and passed upon by them, their conclusions have been subsequently submitted to and reviewed by the district judge, and he has rendered a decision thereon.

The Legislature has announced that for the purpose of enabling officers to qualify for induction into office, it is not deemed necessary to pursue an investigation as to their sureties beyond the action of the district judge, and it has provided a remedy for any threatened danger to the State’s interests from a mistake in that regard, by Act No. 14 of 1878, above mentioned, authorizing the Governor to institute suits to test their solvency after they shall have entered upon the discharge of their duties.

We are not called upon to consider this matter with reference to what would have been relator’s rights as to an appeal had the ruling of the district judge been adverse to the sufficiency of the sureties tendered by him. But whilst we hold that the decision of the district judge on the merits of the rule before him can not be made the subject of review by this court on appeal, it does not follow that the appeal itself should therefore be entirely dismissed. The defendant having been ruled into court to show cause why he should not accept the sureties tendered by the sheriff, and having shown cause, which the district judge held to be insufficient, would but for Sec. 352 have been entitled to an appeal (State ex rel. Graham, Auditor, vs. Judge, 23 An. 596). One of his contentions in the lower court being that this very section had been repealed, and that the effect of the repeal was to leave him entrusted not only with the duty of passing upon the solvency of the sureties, but of doing so finally and conclusively, free from any control by the district judge, and the latter having held otherwise, we are of the opinion that the appeal lies for the purpose of the determination of those special restricted issues, but for nothing else.

■ We now pass to the exception filed by the defendant, which brings up the question whether Sec. 352 of the Revised Statutes has been repealed, leaving the discretion of the defendant over the subject matter of the approval of sureties and acceptance of bonds absolute and not reviewable, as he claims, by mandamus.

The remedy invoked by the relator, though styled by the parties a mandamus, is not strictly such; it is simply a “rule to show cause ” —a special statutory remedy provided by law expressly authorizing the district judge to review the action of certain officers in respect to a certain specified matter, and on due and legal cause not having, in his opinion, been shown to justify the same, to reverse that action —to pronounce on the case the decision which those officers should have made and to order them to do that which they should have done originally.

There has been a slight departure in the proceedings from the precise form in which Section 352 directed the issues raised to be placed before the judge, but the defendant has urged no objection on that score, and matters were really more satisfactorily disposed of by taking the testimony in the case contradictorily between the parties in open court than they would have been by adhering to the very letter of the law.

We have said that Section 352 has not been repealed. There was no inconsistency originally between that section and the one directly preceding, and the various statutes which have been referred to by counsel and alluded to in the former portion of this opinion have not brought about any; those statutes and Section 352 can well coexist and be read together as sections of one and the same general law, the one bearing upon the particular officers who should originally consider and approve or reject the sureties and bonds, the latter upon a revision in the nature of an appeal from the action taken by those officers primarily dealing with the subject. We see nothing in Acts Nos. 11 and 50 of 1877 which would go or tend to show that in changing the particular officers charged with the original duty the Legislature intended to alter the law, enlarge their powers and make their action final. The very title of Act No. 11 shows that it was dealing exclusively with Section 351, and Section 4 of Act No. 14 of 1878 shows very clearly a legislative belief that at that time there existed a special method for the “testing ” of bonds and a legislative understanding that the prior laws were still in existence. There being no inconsistency between those laws and any of the provisions of the Constitution of 1879, they remained, under Article 258 of that instrument, unimpaired by its adoption.

The terms of Art. 118 of the Constitution, relative to a subsequent enactment by the General Assembly of a general law on the subject of the bonds of sheriffs, ex-officio tax collectors, are not to be enlarged by construction and to reach a result obviously not within the intendment of. the article.

Its adoption was due to the merging by the Constitution of the two offices of sheriff and tax collector, and to the necessity of making certain that legislation should be adopted which was necessary to be adopted to meet the change thus operated.

We do not think that the requirement of that article that the Legislature should pass a general law regulating the amount, form, condition and mode of approval of the bonds of the sheriff carried with it a peremptory command, that it should legislate de novo upon a matter already provided for, which needed no alteration in order to conform to new conditions. Art. 118 declares that until otherwise provided the bonds should be given according to existing laws.

Act No. 52 of 1880, enacted in obedience to tbe mandate of the' Constitution, is absolutely silent in respect to any departure in the matter of sheriffs’ bonds from the provisions of the general law embodied in Sec. S52, covering all bonds. It is obvious the Legislature did not construe it to be its duty to make any such change — at all events it has not as yet done so, and until this shall have been done this matter must continue to be governed by existing laws.

The construction contended for by the defendant would require us to declare a general law repealed by a special law on a particular subject by a mere implication, and by such implication not only not to reach the result aimed at and declared in Art. 118 of “ fully securing the State and parish, and all parties in interest,” but of breaking down salutary cheeks and balances now existing, producing and attaining the object sought.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment of the District Court be and the same is hereby affirmed.


author: Hicholls, C. J.

text:
    No. 11,109.
    Succession of William Wallace Hunter. Opposition to Account of Executors.
    i: Accretion is based upon tbe theory that the title to the thing bequeathed is conveyed in its entirety to each and every one oí the legatees named> and that hence when one or more of the legatees dies before the legacy vests, this fact leaves the title intact in each of the survivot's m its entwety but with simply fewer p&'sons to share in it onrpartition. The word accretion is not strictly exact, it should rather be non-decretion.

      2. Where a testator, after appointing testamentary executors “ with seizin of his (my) estate to administer and apply the same as hereinafter written, viz., all • and every sum of money of which I die possessed, and all and every article of value pertaining thereto which may accrue to his (my) estate,” next makes nine separate legacies of $1000 in gold to each of nine persons, closes his will with the clause “ I desire should any money or aught of value accrue to my estate from any e aim exhibited in the papers which I leave or otherwise, that the same he paid severally and proportionally to the persons named and stated in this paper, to whom I leave cash in gold,” three of the special legatees die before the testator there is|no room for the application of the doctrine of ac-’ cretion. The will contains no “ disposing clause” of the remainder, which is referred to by way of payment to and distribution, and not by way of bequest. The “ title” to the remainder never vested in the nine legatees or any of them.

      3. The clause can only be considered from the standpoint of a “-payment,” and when so considered the testator obviously directed that each of the nine special legatees should separately receive one-ninth of the remainder afterpayment of the special legacies, debts, charges and costs.
    The six survivors neither gained nor lost by the death of the three others, and the lapsed legacies devolved on the legal heirs.
    A PPEAL from fche Civil District Court for the Parish of Orleans. H Monroe, J,

      Brown & Ghoate and Beattie & Beattie for the Executors and the Legatees, Appellees:
    A clause in a will which says: “I desire, shou'd any money or aught of value accrue to my estate from any claim exhibited in the papers which I leave or otherwise, that the same be paid severally and proportionally to the persons named and stated in this paper, to whom I leave cash in gold,” is a universal legacy. C. 0.1606; Marc. Vol. IV, O. N., 1003; Toullier,Vol. V, 505; Duranfcon, Vol. V, 170,180; 3 An. 707; 2 An. 580.
    All legacies lapse by the death of the legatee before the testator. C. C. 1697; Sue. Burnside, 35 An. 715.
    A universal legatee profits hy the lapse of all other legacies. O. C. 1704.
    Accretion takes place in favor of all legatees of a conjoint legacy. C. C. 1707.
    A legacy is conjoint unless each legatee is called to a specific and particular share of estate; in other words is a legatee under a universal title. Duranton, Vol.' V, 507; 10 An. 164; 18 An. 409; 12 Ilob. 67; Delvincourt, Vol. II, p. 341.

      Henry G. Miller for the Opponents, Appellants:
    A will to nine legatees of one thousand each in gold is not a conjoint legacy. So in the event of the deaths of three of the legatees, before the testator, the portions that would have been inherited by them do not accrue to the six surviving legatees, each of whom are restricted under the will to $1000 and no more, unless they are made residuary legatees. Civil Code, Art. 1706 to 1709; Parker-son vs. McDonough, 4th N. S., p. 246; Lebeau vs. Trudeau, 10 An. 164; Mackie vs. Story, 93 U. S., p. 589.
    The testator after the above disposition of his gold adds in another part of his will: “ I desire, should any money or aught of value accrue to my estate from any claim exhibited in the papers which I leave or otherwise, that the same be paid severally and proportionately to the persons named and stated in this paper, to whom I leave cash in gold.” This subsequent disposition can have no application to the gold, the subject of the first disposition, for it manifestly refers to property other than the gold — that is, other property the testator thought might accrue to his estate, hence this subsequent disposition does not make the six surviving legatees residuary legatees of any portion of the gold left by him at his decease.
    Indeed, if the subsequent disposition of the will could be deemed a universal legacy of any of the gold — i. e., the gold bequeathed to the three deceased legatees or of any other property the deceased left, not disposed of by his will, then the supposed universal legacy is in favor of nine persons, eaehfor his several and proportional part, and as three of the nine died before the testator, the parts they would have taken accrue to all the legal heirs of the testator. In other words, neither the supposed residuary legacy or the gold legacies are conjoint, so as to give to the surviving six legatees the portion of the testator’s estate he bequeathed to the three deceased legatees. See authorities above cited, and Civil Code, Arts. 1606 and 1612; 12 Bob. 56, 68.
    It follows that the deceased died intestate, except to the extent of six thousand dollars bequeathed to the six surviving gold legatees, and all the property left by him, in excess of six thousand dollars in gold, accrues to his legal heirs in the absence of any residuary legatee. Civil Code, Arts. 1697, 1709.
   The opinion of the court was delivered by

Hicholls, C. J.

William Wallace Hunter, a resident of the city' of New Orleans, died in that city on the 3d of June, 1892, leaving an olographic will dated 1st of May, 1884, from which we extract the following portions bearing upon the controversy which has arisen in this case:

This is my olographic will and testament. I do name and appoint William O. Raymond and Frederick Stringer my sole excutors, without bond, with full seizin of my estate, to administer and apply the same as hereinafter written, viz.: all and every sum of money of which I die possessed, and all and every article of value pertaining thereto and which may accrue to my estate.
I give and bequeath to my niece, Mrs. Mary Ann Raymond, one thousand dollars cash in gold.
“I give and bequeath to my niece, Mrs. Oarolina Gerault, one thousand dollars in gold.
“I give and bequeath to my niece, Miss Henrietta Bernett, one thousand dollars in gold.
“I give and bequeath to my nephew, William Hunter, one thousand dollars in gold, and cancel and absolve him from the payment of all his written obligations to me which may be found among my papers.
I give and bequeath to my grandnephew, William W. Hunter, one thousand dollars in gold.
“I give and bequeath to my niece, Miss Phcebe I. Tompkins, one thousand dollars in gold.
I give and bequeath to my niece, Miss Matilda Hunter, one thousand dollars in gold.
“I give and bequeath to my niece, Miss Debbe Le Sassier, one thousand dollars in gold.
“I give and bequeath to my niece, Mrs. Georgia Maybin, one thousand dollars in gold * * *
I desire, should any money or aught of value accrue to my estate from any claims exhibited in the papers which I leave, or otherwise, that the same be paid severally and proportionately to the persons named and stated in this paper to whom I leave cash in gold.”

We have not copied the portions of the will wherein he disposes of such small articles as breastpins, watch, gold cane, etc., etc., to different persons.

This will was probated, and the executors named qualified as such.

An inventory was taken in the succession, from which it appears that the deceased left $13,630 in gold, and a few movables to which no special reference is necessary.

Three of the legatees to whom $1000 in gold were left, viz.: Mrs. Georgia Bennett Maybin, Mrs. Caroline Gerault and Mrs. Mary Ann Raymond, died before the testator.

On the 30th June, 1892, the executors filed their final account, which shows a net amount of $12,483 for distribution. The executors, reciting in their account the death of the three legatees, proceed to divide this amount into six equal portions of $2008.53%, and which they propose to pay over to each of the six surviving legatees, stating their authority for this action to be the clause of the will directing that “should any money or aught of value accrue to my estate from any claim exhibited in the papers which I may leave, or otherwise, the same be paid severally and proportionately to the persons named and stated in this paper to whom I leave cash in gold.”

The homologation of this account was opposed by a portion of the legal heirs of the deceased. That the opponents are such seems to have been conceded throughout the proceedings, and our opinion is based upon that fact as being admitted. The parties contend that under the terms of the will all the gold left by the deceased over and above $6000 specially bequeathed remained undisposed of, and together with the amount of the legacies which lapsed by death de - volved upon the legal heirs, under Article 1709, while the executors claim that by the clause of the will on which they base their action the nine legatees were instituted universal legatees and on the death of three of these the whole succession, over and above the special legacies, debts, charges and costs devolved upon the six survivors.

We are relieved from an extended discussion of the subjects of accretion, of universal legacies and legacies under a universal title and from an examination of the refinements which such a discussion would require by the view which we have taken of the will.

We will not be called upon to say what would have been the proper construction of that instrument and the consequences of that construction had the testator declared that “ he gave and bequeathed” (after the special legacies therein contained) to nine designated nephews and nieces “ severally and proportionally any money or aught of value which should accrue to my estate from any claim exhibited in the papers which I leave, or otherwise,” and to decide whether the terms “ I give and bequeath severally and proportionally” to these nine persons would have to be taken as meaning “ I give and bequeath in severalty and proportionally to them,” or as meaning “I give and bequeath “separately and proportionally to them,” for it will be noticed that there is no direct disposing clause conveying the remainder of his estate over and above the special legacies, and that the reference in the will to that remainder is by way of payment to or distribution, and not of bequest.

The executors were appointed in the first part of the testament with seizin and directed “ to administer and apply the same as hereinafter written," and this direction is followed up in the latter portion by the words “ I desire, should any money or aught of value accrue to my estate from any claim exhibited in the papers which I leave, or otherwise, that the same be paid severally and proportionally to the persons named and stated to whom I leave gold in cash ”

Considered from the standpoint of an “order to pay" (and that is the only way in which we are authorized to consider it), we think the will is clear and unmistakable as to its meaning. The words “ pay severally and proportionally” obviously mean “separately and proportionally” — in other words, that each one is to be paid separately one-ninth each.

The persons named are not forced heirs of the testator; their right to receive is strictly limited to what he directed should be turned over to them, and we think it clear that, when the will was written, the testator intended that that limit should be one-ninth.

Accretion is based upon the theory that the title to the thing bequeathed is conveyed in its entirety to each and every one of the legatees named, and that hence when one or more of these legatees happen to die before the legacy vests, this fact leaves the title intact in each of the survivors as to its entirety, but with simply fewer persons to share in it on partition.

Marcadé in his work “ Des Donations et Testaments,” under Art. 1045 of the Code Napoleon, refers to the word accretion as wanting in exactness.

He says:

“ On a vu au titre précédent que Vaccroissement (dont le nom est peu exact puisqu’il est plutót un non déoroissement) est le droit de prendre dans une succession on dans un legs une part á laquelle on est appelé maisqu’on n’aurait paseue sitous les co-intéressés étaient, venus recueillir; il est établi pour l’héritier ou le légataire — non pas, disait Cujas — ut plus habeat, mais bien ne minus habeat. II est clair, en effet, que le prédécés d’un co-héritier oud’un co-légataire nepeut pas créer pour ses co-intéressés un droit qu’ils n’auraient pas eu primitivement; que pour recueillir le tout il faut avoir vocation & ce tout, vocation qui n’aurait pas son entier effet si tous les appelés recueillaient quia concur sus partes fierint.”

In the case at bar the title to the remainder never vested at all in the nine persons or any of them, and therefore there is no room for the application of the principle of accretion.

The six survivors of the nine named will each receive exactly that which it was originally intended that each should receive — they neither lose or gain by the death of the three others.

If the testator did not alter his will after the death of the legatees it must be presumed it was because he knew the direction the lapsed legacies would take under the law.

On the subject of accretion see Dalloz “Les Codes Annotés,” under Art. 1044, C. N., No. 39:

“ La senle difficulté est de savoir quand il y a assignation de parts suivant une opinion, il y a assignation de parts non seulement. quand le testateur a distinctement déterminé la portion qu’il donne a. chacun, cas qui n’a jamais fait difficulté et que le législateur n’avalt pas besoin de régler, mais encore dans le cas oh le testateur aprés avoir légué á plusieurs personnes la méme chose ajoute que c’est par portions viriles ou par égales parts et portions.” Jurisprudence Générale, Entre-vifs 4410.

We have already said that there was no disposing clause at all in the will now under consideration in reference to the remainder.

The claim of the opponents that no portion of the gold left over and above $6000 falls under the operation of the. will is not well founded.

Eor the reasons herein assigned, it is hereby ordered, adjudged and decreed that the judgment of the District Court be and the same is hereby avoided and reversed, and that the six survivors of the nine special legatees to each of whom $1000 in gold was bequeathed be limited each to take, under the will of the testator, the said special legacies of $1000 and each one-ninth of the remainder of the estate after the payment of the other legacies, debts, charges and -costs, and that the gold found in the succession over and above the ,$6000 of the special legacies be included in the mass in making up the ninth to which each of the said survivors is entitled. It is further •ordered, adjudged and decreed that all the portion of the succession remaining undisposed of, including therein the amount of the lapsed legacies, has devolved upon the legal heirs, subject to the payment of the debts, charges and costs. It is further ordered that this ease be remanded to the District Court with orders to the executors to recast their account in accordance with the principles announced in this decree.


text:
    No. 11,158.
    The State of Louisiana vs. Ville Rideau et al.
    The motion to quash has not the slightest merit, and the motion in arrest is overruled for the reasons given in State vs. Bennett, No. 11,151.
    APPEAL from the Eleventh District Court, Parish of St. Landry. Perrault, J.

      M. J. Cunningham, Attorney General, for the State, Appellee.

      John N. Ogden for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

We find a motion to quash the indictment and proceedings in this case on the ground that they “set forth no cause of action.” No argument, oral or written, is filed, and no explanation of this singular plea is made. There is nothing in it.

The same motion in arrest which was overruled in the Bennett and Clay cases, Nos. 11,151 and 11,152, must encounter the same fate here.

Judgment affirmed.


text:
    No. 11,152.
    The State of Louisiana vs. Henry Clay.
    The case involves one of the points decided in the case of the State vs. Bennett No. 11,151. That decision is approved and judgment affirmed.
    APPEAL from the Eleventh District Court, Parish of St. Landry. Perrault, J.

      M. J. Cunningham, Attorney General, for the State, Appellee.

      John N. Ogden and E. P. Veazie for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

This appeal presents but a single plea of error presented on a motion in arrest of judgment on the ground that the minutes of the court “ do not state the signature of the foreman of the grand jury after the words a ‘ true bill.’, ”

The same point was made and decided in the case of the State vs. John Bennett, Jr., recently decided, and for the reasons there given it is overruled.

Judgment affirmed.


author: Watkins, J.

text:
    No. 11,135.
    The State ex rel. Wm. J. Comerford vs. John Fitzpatrick, Mayor.
    The adjudicatee of a contract for the collection of delinquent taxes and licenses of the city of Nevr Orleans, for a specified year, is required to obtain and have prepared by the city notary a notarial contract therefor, conformably to the specifications of an ordinance adopted by the City Council in pursuance of a State law. Jffeld, that failing to obtain such a contract for presentation to the mayor for his signature he is without legal right to compel him, by mamdamus, to sign any other.
    The writ of mandamus never creates any new authority, nor does it confer a power which did not exist before. It does not make duties, but lies to compel a party to do what was his duty without the writ. This writ will not lie unless the act desired is of absolute obligation on the part of the person to be coerced. The relator must show not only a clear legal right to have the thing done, but also by the person sought to be coerced, in the manner sought, and that he still has it in his power to perform the duty required. The action must not only he in respondent’s power to do, but it must be his duty to do it.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      E, Howard MeCaléb and Walter D. Denegre for the Relator and Appellee :
    1.A general denial is not permissible in a return to an alternative writ of mandamus. Merrill on Mandamus, Sec. 274; 68 Tex. 488. The defendant must “ state the reason to justify his conduct ” in his answer. C. P., Art. 842.
    2.“ The writ may issue to the mayor of a city to sign a contract made in pursuance of law and the ordinances of the city.” Merrill on Mandamus, Sec. 109; 35 N. J. D. 396; 20 All. 172.
    3,Sections 9 and 20 of the Oity Charter (act approved June 23,1882) apply ex terminomm to ordinances and resolutions, not to simple motions and orders of the council directing the mayor to sign notarial acts’evidencing municipal contracts. And such has been the universal custom and practice of city official?. “ Usage, under a statute, if ambiguous, is its best interpreter.” Optime legum inferpres eonsuetudo.

    4.Where the ordinance of the city does not require the completion and signature of the notarial act, and the giving of bond by a contractor within a fixed time, and he has never been put in default, he can not he held to have abandoned his contract, especially where he was always ready and willing to comply with its conditions. “The abandonment of a right is never presumed.” Nemoprcnsumitm’ donm'e.
    5.The decision in 20 An. 518, holding that the mayor could not be compelled to sign a contract revoked by order of General Sheridan, during reconstruction times, furnishes no excuse to the defendant in this case. Arma silent leges.

    6.It is the duty of the city notary — -not of contractors — to prepare notarial acts in accordance with the city ordinances. His failure or neglect so to do can not be visited upon the contractor. Sec. 52 of Act 20 of 1882; Jewell’s Digest, Art. 144; Idem, Art. 158.
    7.The court may grant the peremptory writ of mandamus in any form consistent with the case made by the pleadings and embraced within the issues. Merrill on Mandamus, Sec. 296. It may alter, change or modify the alternative writ and give such judgment under the pleadings as is authorized by the evidence. 30 An. 155; 43 An. 590; 34 An. 477 ; 37 An. 528.

      Geo. W. Flynn, Hoace L. Du four, Assistant City Attorneys, and E. J. O’Sullivan, City Attorney, for the Respondent and Appellant:
    1. A mandamus will not lie to compel a public officer to perform duties, in the exercise of which he is vested with discretionary powers and functions. N. O. Gas Light Co. vs. Mayor, 82 An 26S; State ex rel. Daboval vs. Police Jury, 39 An. 759; State ex rel. Lanaux vs. Recorder of Mortgages, 36 An. 974; State ex rel. Hope & Co. vs. Board of Liquidation, 42 An. 647.
    2. Public officers are presumed to do their duty, and should not be condemned until properly put in default.
    3. A failure or neglect on the part of the contractor to comply with the terms of his contract in good faith leaves him without relief by way of mandamus.
    4. No ordinance or resolution of the City Council can or should have the force and effect of law unless legally adopted in the manner and form laid down by Secs. 9 and 20 of Act No. 20 of 1882, known as the City Charter.
    5. The City Council has not the power to pass a motion changing and alteringthe conditions of an existing contract.
    6. A writ of mandamus will not lie for the enforcement of a money claim.
   The opinion of the court was delivered by

Watkins, J.

This is a mandamus proceeding, the object of which is to compel the respondent, who is mayor of the city of New Orleans, to sign a notarial act prepared in alleged pursuance of and conformity with city ordinance No. 5425, Council Series, and a certain motion made in and adopted by the City Council on the 24th of April, 1892.

The pertinent averments of the relator’s petition are as follows, viz.:

1. That, in pursuance of the provisions of an act of the Legislature defining the powers and duties of the council and officers of the city of New Orleans, and imposing additional limitations thereon, being Act 135 of 1888, and especially in pursuance of Sec. 7 thereof, the right to collect the delinquent taxes of the year 1890 was adjudicated to him as the lowest bidder; and that the terms of his bid were duly accepted and ratified by the mayor and council of the city of New Orleans under ordinance No. 5425, Council Series, adopted July 7, 1891, and which ordinance was duly promulgated according to law.

2. That from the time of adjudication to him of the right to collect said delinquent city taxes, he has, at all times, been ready and willing to carry out and execute the terms and stipulations thereof in good faith.

3. That, by the terms of said ordinance, accepting his bid, the respondent, mayor, was authorized and instructed to enter into a notarial contract with him; but that he has without any just or sufficient cause neglected and refused so to do.

4. That, on the 12th of April, 1892, a motion was made and adopted by the City Council instructing the respondent to sign the contract with him, which had been duly prepared and copies thereof had been laid upon the desks of the members of the City Council, in accordance with city ordinance No. 1175, Council Series, and which contained the names of the sureties, who were duly approved by the council; but, nevertheless, the mayor still refuses to sign the contract with relator without any just or sufficient cause and still continues to persist in his refusal, although repeatedly requested to execute the said contract by affixing his signature to the said notarial act evidencing same, notwithstanding it has been duly signed by him and his sureties in the manner and within the time required.

5. That in order to prevent a denial of justice to him, and considering that the law has assigned no remedy by the ordinary means for redressing the wrong and injury he complains of, he alleges himself to be entitled to relief by mandamus.

The principal objections argued by the respondent are the follow ing, substantially: that the duty imposed upon him in the premises, in respect to affixing his signature to relator’s contract is not purely and simply ministerial, but one involving the exercise of judgment and discretion, which is not subject to judicial control; that asimple motion on the part of the City Council, not embodied m an ordinance or resolution, instructing the mayor to sign relator’s contract, has not the force of law, and is violative of the city charter; that relator did not comply with the obligations of his contract requiring him to furnish bond within a reasonable time, and according to the specifications of the ordinance, and has, on that account, virtually abandoned his contract; that the written contract submitted to the City Council on the 12th of April, 1892, contained provisions changing the terms and conditions of the original contract, so as to render it ultra vires and null and void; that the result of granting relator the relief sought would be to give a money judgment in his favor, which can not be done by mandamus.

The provisions of the law relied upon by the relator are “ that at the end of each and every year * * the council shall, by proper ordinance and under proper limitations and instructions, farm out and adjudicate the contract to collect the delinquent taxes and licenses of that year, to the lowest bidder, after at least ten days’ public advertisement, provided that the percentage allowed such farmer shall never exceed 5 per centum on the amount collected and paid into the treasury; that the payment of such taxes and licenses shall always be made to the city treasurer and not to the farmer; that the city shall be at no expense or cost of said collection; that each farmer shall be required to close his contract within two years, and that his bond shall not be canceled until he accounts for every tax bill in his hands, either by collecting the same or by showing that the same can not be collected, and the reason of such non-collectibility ; and on all licenses and bills uncollected at the end of said two years he shall receive no commissions.” Sec. 7, Act 135 of 1888.

On the 28th of April, 1891, Ordinance No. 5276, Council Series, was adopted by the Oity Council, and it was approved and signed by the mayor on the following day. The title of this ordinance is “An ordinance to authorize the farming out of delinquent city taxes for the year 1890;” and it ordains and directs that the comptroller be and is thereby authorized and directed to advertise for a period of ten days for sealed proposals for the collection of delinquent taxes and licenses for the year 1890, in accordance with the quoted provisions of the Act of 1888.

The requirements of the ordinance are that the person bidding shall be experienced and understand the collection of delinquent taxes and licenses to the satisfaction of the council or the committee thereof to whom the matter is referred. That he shall be a responsible party and shall have no direct or indirect connection with any public office created by law. That in proof of the earnestness of his offer he shall accompany his bid with a certified check in the sum of $50,000, “ said amount to be forfeited in case the party whose bid has been accepted does not sign the contract and furnish bond as provided in this ordinance." That all bids shall be considered unfavorably unless accompanied by name or names of sureties who will agree to sign his bond for $50,000 for the faithful performance of the obligations of his contract; and it is made the duty of the contractor to execute a bond for the sum of $50,000 in favor of the city of New Orleans for that purpose, “it being understood and agreed that the said contract shall not extend over a period of two years from the date of signing * * and at the end of which time he shall give a full and final report oí the taxes collected,” etc.

In pursuance of said ordinance, a sale and adjudication of the contract for the collection of delinquent taxes and licenses for the year 1890 was made by the city comptroller to the relator on the 15th of June, 1891; and on the 7th of July, 1891, the City Council enacted and adopted Ordinance No.'5425, C. S., in which it is declared “that the bid of W. J. Comerford for the collection of delinquent taxes and licenses of the year 1890, for and in consideration of 3% per cent., under Ordinance No. 5266, C. S., be and the same is hereby accepted, and the mayor is hereby authorized and directed to enter into notarial contract with the said W. J. Comerford as per his bid, and under the specifications of Ordinance No. 5266, O. S.”

That ordinance was duly approved and signed by the mayor on the 9th of July, 1891.

No further proceedings appear to have been taken by the relator until the 12th of April, 1892, when a motion was made in the City Council directing the respondent to sign the contract that was tendered by the relator for the collection of delinquent taxes for the year 1890; and same was adopted by a majority vote, and a copy thereof forwarded to the mayor, but it was not signed by him.

The prayer of relator’s petition is “that a writ of mandamus issue herein, directed to the Hon. John Fitzpatrick, mayor * * * commanding and ordering him, in his said official capacity as mayor of said city, to sign the notarial act prepared by Joseph D. Taylor, city notary of the city of New Orleans, under and by virtue of said Ordinance No. 5425, Council Series, and the motion adopted by the council on April 12, instructing the mayor to sign said act,” etc.

On the state of facts thus presented, the question raised for decision is, whether it was the plain ministerial duty of the respondent, mayor, to affix his official signature to the act presented to him in April, 1892?

To be more specific, and put the respondent’s objections to signing the act in question more plainly and specifically, we will extract the following from the brief of plaintiff’s counsel, viz.:

“ Fourth. Respondent further avers that relator neglected to comply with one of the essential conditions of this contract, to-wit: the furnishing of a bond within reasonable time; that although his bid was accepted on July 7, 1891, as per Ordinance No. 5425, Council Series, no bond as required by the specifications contained in Ordinance 5266 was furnished by him, nor presented to the council for approval until 1892, seven months after the passage of the ordinance, and that this delay on the relator’s part was a virtual abandonment of his rights under the contract.
“Fifth. Respondent further avers that the notarial act submitted to the council April 12, 1892, contained provisions changing the terms and conditions of the original contract, retroactive in their operation, and as such null and void, and ultra vires for the following, to-wit:
“ That Act No. 135 of 1888, Section 7, provides for the farming out and adjudication of the contract to collect the delinquent taxes and licenses of each year, and it is further provided that the farmer shall close his contract within two years.
“ That although Ordinance No. 5425, Council Series, was adopted on July 7, 1891, authorizing the mayor to enter into a notarial contract with the relator, no bond was tendered by him subsequent to April 23, 1892, and no notarial contract, in accordance with the specifications and conditions imposed by Ordinance 5266, was ever tendered to or accepted by the council, but that the only contract tendered in April, 1892, was one dated as beginning on July 27, 1891, becoming operative from that day, and to continue for two years, and was, therefore, in conflict with Ordinance 5266, ‘ which provides that the contract shall begin from the date it is signed,’ and that respondent is under no obligations to sign the same for the reasons aforesaid.”

An examination of the notarial act tendered — the one respondent is mandamused to sign — discloses that it contains this clause, to-wit: “This contract is to date from the acceptance of the bid, July 7, 1891, and to continue for a period of two (2) years from said date."

It also appears from said act that the comptroller made the adjudication of the franchise to the relator on the 15th of June, 1891, and that the Oity Oouncil accepted and approved said adjudication on the 7th of July, 1891; but its approval was specially conditioned on the terms and conditions stipulated in the prior ordinance, No. 5266, O. S., which provides the manner in which the legislative grant was to be carried into effect; and that amongst other things, that ordinance declares that the farmer’s “ contract shall not extend over a period of two years from the date of signing."

Obviously, the contract tendered for the signature of respondent does not conform to Ordinance No. 6266, nor to Ordinance No. 5425, in respect to the date from which the adjudication to the relator was to take effect. And conceding for the argument that the Oity Council was authorized by simple motion to approve the contract, no motion to that effect was made until the 12th of April, 1892, more than eight months having elapsed; and the motion made at that time was for the approval of the contract as taking effect from the 7th of July, 1891, instead of from date of signing.

It is evident that the contract that was approved by the council is not such as the ordinance contemplates, nor such as the approval of the council of date July 7, 1891, required, even if it be conceded to be perfectly formal and regular, which is more, than doubtful. In-our opinion the contract, as presented, is illegal, and violative of the ordinances 5266 and 5425, and that the mayor was not bound to-approve or sign the same.

The condition upon which the council accepted relator’s bid was that his contract should conform to the specifications of Ordinance-No. 5266, and one of those specifications is that it shall take date on the day it is signed, while the purport of the motion of April 12, 1892, was that the mayor should approve and sign an act taking date eight months previously — the two acts of the council being diametrically opposed to each other.

Not only so, but the express direction and requirement of Ordinance No. 5425 is, that the adjudication to the relator is accepted in pursuance of the terms of Ordinance No. 5266, as above stated, and the mayor “was authorized and directed to enter into notarial contract with the said W. J. Oomerford, as per his bid and under the specifications of said ordinance,” and no other.

In view of that declaration and authority it was not only not the duty of the mayor to sign the act that was tendered to him for his signature, but had he signed the act in its then condition he would have undoubtedly exceeded his authority, and should we grant the relator the relief prayed for our judgment would compel his performance of a thing that is wholly unwarranted by the ordinance and the law.

Nor is this a mere technical construction of the ordinance and contract, for the proof shows that during the interval of time which elapsed between the 7th of July, 1891, and the 12th of April, 1892, a. sufficient amount of delinquent taxes and licenses were collected on the rolls oí 1890, by other persons than the relator, to make the commissions thereon aggregate, at the contract price of adjudication, the sum of $3705.37, to which the relator would be entitled, if he is awarded the relief prayed for, and to that extent our decree would give him, in effect, a money judgment, to which he is not entitled under the ordinance and law.

Recognizing this fact the district judge undertook the reformation of the contract, and in so doing, employed this statement in his reasons for judgment, viz.:

u This contract was erroneous by [being] dated as beginning on July 7, 1891, and, if signed, would have given relator the right to recover his commissions on all taxes of 1890 paid to the city on and since that date, amounting to $3705.07, and to which he is not entitled. The mayor very properly refused to sign the contract. It was and is the duty of the city notary to prepare the contract in accordance with the ordinance under which the sale and adjudication were made, and when so prepared and signed by the sureties it is the ministerial duty of the mayor to sign the contract.”

Thereupon the judge made the mandamus peremptory, commanding the respondent “ to sign within five days from the date of judgment a notarial contract to be prepared * * * to take effect from the date of signing said notarial act,” and compelling the respondent to pay the cost of suit.

Such a judgment not only appears to be clearly illogical, but one that is unwarranted upon its face.

For while it concedes that the contract tendered for signature was erroneous, and if signed would have given the relator over $3000 in excess of his legal right; and while conceding that the respondent properly refused to sign it in that condition, yet it makes the writ peremptory at his cost, and grants a relief not prayed for or contemplated by relator, by commanding the respondent to execute and sign an act not yet executed or in esse.

Not only so, but the act which the judgment appealed from declares erroneous is the only one that has ever been presented to or approved by the Oity Oouncil, and such presentation to and approval by the council are among the sine qua nons of the ordinances and the law. The sureties who are to sign this new act are not indicated, and same, of course, have not been procured or approved by the council.

The only course that is left open to the relator is to conform strictly to the letter of the ordinance and law, and obtain a notarial contract in strict conformity to the terms and specifications of the ordinance, as the only sure means of obtaining relief.

For it is not the province of the writ of mandamus to create a new remedy.

In a very recent treatise on the subject we find the following, viz.:

“ The writ of mandamus never creates any new authority, nor does it confer a power which did not exist before. It does not make duties, but lies to compel a party to do what was his duty without the writ.” Merrill on Mandamus, Sec. 50, p. 54.
“ This writ will not lie unless the act desired is of absolute obligation on the part of the person sought to be coerced. The relator must show not only a clear legal right to have the thing done, but also by the person sought to be coerced, in the manner sought, and that he still has it in his power to perform the duty required. The action must not only be in the respondent’s power to do, but it must be his duty to do it. The act must be clearly prescribed and enjoined bylaw. The duty must be plain and positive.” Ibid., Sec. 57, pp. 64 and 65; Runion vs. Latimer, 6 S. C. 126; Railroad Co. vs. Sufferin, 129 Ill. 274; State vs. St. Louis, etc., 21 Mo. 526; State vs. Omaha, 14 Neb. 265; People vs. Klokke, 92 Ill. 134; Heighways vs. People, 99 Ill. 587; State vs. Jacobus, 2 Dutch. 135; People vs. Spruance, 8 Colo. 307; Daniels vs. Miller, 8 Colo. 542; Aspen vs. Aspen, 10 Colo. 191; People vs. Hoyt, 66 N. Y. 606; Burnsville vs. State, 119 Ind. 382; State vs. Bonnell, 119 Ind. 494; State Board vs. West Point, 50 Miss. 638; State vs. Hastings, 10 Wis. 518; Commonwealth vs. Mitchell, 82 Penn. St. 343; People vs. Chenango Co., 11 N. Y. 563; Town vs. Talapoosa Co., 17 Ala. 527; Bayard vs. United States, 127 U. S. 246; see also State ex rel. New Orleans Pacific R. R. vs. Nicholls, 30 An. 1217.

It is our conclusion that the judgment appealed from is erroneous, and must be reversed, and it is therefore ordered and decreed that the judgment appealed from be annulled and reversed, and it is further ordered and decreed that the relators demands be rejected, and that a peremptory mandamus be refused at his cost in both courts.