author: Fenner, J.

text:
    No. 8264.
    The State of Louisiana ex rel. C. R. De Leon vs. The City of New Orleans.
    Difference of this ease and that of Henry Samory vs. the same Defendant, recently reported.
    By the terms of Section 5, of Act Ho 49 of 1309, it is made the duty of the City of Hew Orleans to appropriate annuallv out of its revenues a sura sufficient to pay the annual interest on the "bonds issued by virtue of said law
    The only remedy which the holders of such bonds in 1869 had to compel the performance of such duty, was by the writ of Mandamus. A ct Ho. 5 of 1870, could not, therefore, constitutionally destroy this remedial right of the bondholders without creating an adequate mode of relief
    The writ of Mandamus can issue to compel the levy of a tax, without judgment previously obtained.
    The Itelator is entitled to the Mandamus prayed for, to compel the City to levy and collect such tax as may bo necessary to satisfy his demand; this Decree, however, not to compel the levy of the tax in future years.
    APPEAL from tlie Civil District Court for tlie Parish of Orleans. Monroe, J.

      ¡Spencer & White, for tlie Relator and Appellee :
    1. This is a proceediug to enforce compliance with Act 49 of 1869 of the General Assembly. That Act authorizing and directing the City of Hew Orleans to issue the bonds held by Relator, and directing, under penalty, a oertain specific sum to he raised annually and deposited as a special fund with the Fiscal Agent, to meet the interest of said bonds, constitutes a contract, and creates, ex necessitate, a debt.
    2. That Act, (Ho. 49 of 1869) imposing the duty on the Council of annually appropriating and setting apart a specified sum of money to pay interest on said bonds, did, by necessary implication, confer the power and impose the duty to lay the necessary taxes to provide that sum.
    The rule is, as now settled, that where a legislativo act authorizes and directs a municipal corporation to contract an obligation, or pay a specific sum of money, it does by implication authorize and require the corporation to exercise the taxing power to pay — unless the power to tax is expressly excluded in such act. There is no such exclusion in said Act Ho. 49. See Ranger case, 8th Otto, pp. 393-395; Loan Association vs. Topeka, 20 "Wall. 660.
    3. Where a legislative act authorizes and directs a municipal corporation to create or pay a oertain debt, and to impose taxation for that purpose, and directs that a specific sum be annually raised for said purpose, any prior legislative restHction on the power of taxation is necessaHly abrogated, so far as relates to that particular debt. In such case the taxing power is limited only by the sum to be raised. The animus of Act 49 is unmistakable. It-imposes on the City the power and duty, absolutely and unconditionally, of raising a spedfiod sum of money — without limitation or restriction — and declares that failure to do so shall operate to divest the Administrator of Finance of all official power. How can it be pretended that any prior general legislativo limitation of the taxing power can operate to prevent the City from doing this absolute and unconditional duty ?

    It would he derogatory to the Court to cite authority to show, that no subsequent limitation on the taxing power can affect prior contracts.

    4. At the time of the contract (1869) the Relator was entitled to the writ of Mandamus to enforce its performance. See C. P. 820, 830-834; High on Ex. Rem., p. 13, Sec. 10; Same, p. 26, Seo. 24; Angelí & Ames on Corp., p. 773, Sec. 707; Abbott’s Digest, Law of Corp., p. 450, Sec. 2; 24 H. Y. 123; Moore vs. City, 32 A.

      The law does not require, in cases like this, where the thing demanded to he done consists, in faciendo, that there must he a previous money judgment. It would he absurd if it did.
    Not-is there any force in the objection that to warrant the writ, the tax must be specific. There is no difference in principle between the case where a statute directs a specific sum to be raised by taxation, and the case where it directs a specific rate of taxation, which will produce that sum. In both cases the tax is specific — in the one case by specifying its amount; in the other by specifying Ob rate.

    There is no basis in the law of Louisiana, nor in the common law, for the proposition that a Mandamus to compel the levy of a tax will only issue where the power to fax is conferred in igjslssimis verbis.

    The implied power of taxation, flowing necessarily from the act under which the debt is incurred or the contract made, is just as potent and effective. See Burroughs, (Tax) p. 453; Billon, Sec. 688.
    5. The remedies for enforcing the contract, existing at its date, cannot bo impaired or taken away, aid any legislation miteri illy clitnmis'iiug the eifiucy of these remedies impairs the obligation of the contract, and is void. See Wolf vs. New Orleans, 13 Ofeto, p 367 : Lucas E. Moore vs. City, 32 A.
    Thq Act No. 5 of 1870, if it he construed as abridging Relator’s right to Mandamus, is unconstitutional and void. Bub that act, in truth, has no possible application to this case, as its bare inspection will show.
    6. Where an obligation is a complex aud continuous one, running from month to month and year to year, as in this case, and where defendants have for seven years openly disregarded it, and refused in any way to perform it, they are in default.

    And where defendants come into Court avowvng and justifying their refusal, and denying any obligation to perform, it is not necessary to put them in default. In such case it does not lie in their mouths to say that Relator’s demand is premature. See High (on Ex, Rem ) Sec 382; Parsons vs. City of Charleston, 2 Hughes; 2Metcalfe, (Ky.) p. 56; Moses on Mandamus, p 127.
    7. This is a proceeding against the City of New Orleans. See motion to dismiss in Sanatory’» case.
    The fact that the present incumbents of the City government may be succeeded by othei v agents and servants presents no obstacle to a decree directing the future action of such corporate oflicers. See 19 Wende’l. 56; 16 Johnson, (Ely.) 61; High, (Ex. Rem.) p. 35T Sec. 6.
    And the Court may order the Council to meet ag liu, and do now what it should have done in Becember, 1881. See People vs. Supervisors, 8 N. Y.; 4 Seld. 317; 9 Otto, 628.
    8. The late decision in the case of Samory vs. The City, in nowise affects unfavorably the case of this Relator. The points upon which that decision rests do not arise in this case. In this case our demand cannot be considered as coming too late — we ask for relief, not only for 1882, hut for subsequent years. We pray for a tax to meet our demand. We have seasonably filed an answer asking the judgment below to he so amended, so as to give it to us.

      G. B. Bucle, City Attorney, and Wynne Boyers, for Respondent and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

This is a mandamus proceeding by the Relator, as bolder of bonds of the City of New Orleans, issued under Act No. 49 of 1869, to compel the City administrators to comply with the provisions of Section 5 of said Act, by providing for the payment of the interest coupons falling due in 1882, and in subsequent years. The bonds, proceeded on, are of the same class with those involved in the case of State ex rel. Samory vs. City of New Orleans, No. 8233 of our docket, recently decided! and we may refer to tlie opinion in that case for a statement of the legislation and other facts affecting the general rights of such bondholder.

Considering, in the Samory case -.

L That the judgment appealed from only ordered the Respondents u to provide and set apart from the revenues of 1881, the sum of $6,125 to meet and pay the semi-annual interest to fall due on the bonds held by Relator.”

2. That said judgment was only rendered and signed on the 21st of January, 1881, after the filial adoption of the budget settling the rate of taxation for the year 1831, and fixing and appropriating the revenues of said 5'ear.

3. That said judgment did not, by its terms, contemplate or command the raising of additional revenues for 1881, by taxation or otherwise.

4. That appeal had been taken by the Respondents alone, and that no amendment of the judgment liad been asked by the Relator, who was appellee.

5. That in absence of sucli prayer for amendment, our appellate functions were confined to affirming or reversing said judgment, or amending it in favor of appellant.

6. That said judgment, if affirmed as rendered, could only have been executed, even at the date of Us rendition, by taking the amount of Relator’s claim from the revenues already fixed and appropriated to other purposes, and could not have been executed by the levying of new taxes, because the mandamus did not so order, and for other reasons stated in the opinion.

7. That for reasons fully set forth in the opinion, the revenues of 1881 could not be diverted from the purposes to which they were devoted by the budget.

We held, in that case, that the judgment rendered could not be lawfully executed, was therefore erroneous, and should be reversed.

The present case is distinguished from the one just mentioned in several important features, viz:

1. The judgment appealed from commands the Respondents “ to include in the estimates of receipts and expenditures to be adopted by them for 1832, and in the estimates to be by them thereafter annually adopted, pursuant to the provisions of Act No. 49 of 3869, appropriations sufficient to meet and pay the interest upon the bonds held by Relator, say the annual sum of $9,394, and that the amount so appropriated be set apart and deposited, etc.

2. This •judgment was rendered in March, 1831, several mouths before the period fixed by law for the adoption of the budget or estimate of receipts and expenditures for 1882.

3. The Relator and appellee has filed timely answer to the appeal, praying an amendment so as to command the defendants to levy and collect a sufficient tax to satisfy Relator’s demands.

These distinctions remove the obstacles which the Relator in the former case encountered, and require a determination of the present case upon otherprinciples.

The constitutionality of Act 4!) of 1869, is not questioned.

The genuineness and validity of the bonds held by Relator are not disputed.

That the Act constituted a contract between the City and the holders of bonds issued thereunder, cannot be controverted.

It is settled in the jurisprudence of this State and of the Supreme Court of the United States, that any law of the State, whether in the form of a legislative Act, or a constitutional provision, which impairs the obligation of a contract, is repugnant to the Constitution of the United States, and is to be bold inoperative so far as it impairs such obligations. We have heretofore expressly held that the Act No. 31 of 1876, and Art. 209 of the present Constitution, cannot operate to impair the obligations of antecedent contracts.

By tlie terms of Section 5 of Act 49 of 1869, it is made tlie positive duty of tlie common council of tlie City of New Orleans to appropriate annually, out of its revenues, “a sum sufficient to pay the annual interest on tlie bonds authorized to be issued,” and to deposit the same in the manner indicated, and to “ apply the same exclusively to the semi-annual payment of the interest coupons of said bonds.”

This duty is positive, unambiguous, and so clearly defined as to exclude the necessity of the exercise of any discretion, and to make it substantially ministerial in its character, as much so as any corporate duty can be. All corporate duties must be performed through the agency of its officers, who act by means of corporate resolutions or ordinances, which, though quasi-legislative in their character, have been universally held to fall, in proper cases, within the control of the writ of mandamus. Our Code of Practice expressly provides that tlie writ may be “ addressed * * * to a corporation * * * directing if to perform certain acts belonging to tlie place, duty or quality with which it is clothed,” (Art. 820), and also “that it may he directed to public officers to compel them to fulfil any of tlie duties attached to 'their office, or which may be legally required of them.”

It is not denied that, at the date of the Act of 1869, these provisions furnished a complete and appropriate remedy to compel the City and its common council to perform the duties so imperatively imposed on them by the Act.

The City contends, however, that this remedy, so far as it, and its officers are concerned, lias been taken away by subsequent legislation, to-wit: by Act No. 5 of 1870.

The performance of the duties referred to, is certainly a vital obligation of Relator’s contract. .

The only remedy afforded by the law to enforce;the performance of this obligation was the writ of mandamus; and if that remedy hasbeen taken away, it is evident that there exists to-day, in the remedial system of our law, no remedy whatever for the enforcement of this specific obligation of the contract.

The Supreme Court of the United States, very recently, in discussing this very same Act of 1870, and Section 7 of the Premium Bond Act, settled the question conclusively and adversely to the City’s claim, holding:

“ A contract is impaired, in the sense of the Constitution, when the means by which, at the time of its execution, it could be enforced, that is, by which the parties could be obliged to perform it, are rendered less efficacious by legislation operating directly upon those means.” Wolff vs. New Orleans, 13 Otto, 367.

However questionably broad this statement may be, the correctness of the principle cannot be disputed when applied to legislation destroying the only remedy for the enforcement of a particular contract obligation, and supplying none in lieu thereof. Unless, therefore, there be other reasons for denying the remedy of mandamus than the subsequent legislation referred to, that, cannot avail.

We think it very plain that the terms, in which the duty referred to is imposed, involve necessarily the duty to levy such tax (at least within the power of taxation possessed, at the time, by the corporation) as v'hi render possible the performance of the duty. It would be absurd to require the council to appropriate a specific sum out of the revenues, and to deposit that sum with a particular officer, and to apply the same exclusively to the payment of this interest, unless the legislature contemplated, at the same time, that revenues should be raised in each year sufficient to meet and fill the said requirements ; and, if such revenues cannot be raised otherwise than by taxation, as the answer of the City in this case admits, they must be so provided.

The use of the -word, appropriate,” taken in connection with the charter of the City, then in force, places this question in a clearer light. Section 124 of the Charter of 1856, provides substantially that the City council shall, once in every twelve months, before fixing the amount of taxes to be assessed, make detailed estimates of liabilities and expenditures, and shall then fix such fate of taxation as, together with other revenues, may be necessary to meet said estimated liabilities and expenditures; and “ the adoption of said estipiaie shall be considered as the appropriation of the amount therein stated for the purposes therein stated.”

This is the only mode of appropriation contemplated by the charter, and is the mode which the legislature had in view when it used the word “ appropriate ” in the Act of 1869, It follows that the duty t4 appropriate included the duty to provide for it by taxation, unless it could be met out of other revenues, which the City itself says cannot be done, but which it is still at liberty to do, if it sees proper. As to the extent of the City’s power of taxation, under this contract, considered in connection with other legislation in'foree at the time, the broad dicta of the Supreme Court of the United States, in United States ex rel. Ranger vs. New Orleans, if literally applied,'would remove all doubt. It is there said:

“When a power to contract a debt is conferred, it must be inferred that a corresponding power of providing for its payment (by taxation) is also conferred. The latter is implied in the grant of the power, and such implication cannot be overcome, except by express words excluding it.”

This dictum was uttered in a case where at the time the law was passed authorizing the contract, there was no legislative restriction on the power of taxation; and, as applied to such a case, could not be objected to. We think the more cautious and qualified expression of the same Court, in the case of Loan vs. Topeka, 20 Wall. 660, furnishes a sounder rule. It was there said:

“It is to be inferred that when the legislature authorizes a city to contract a debt by bond, it intends to authorize it to levy such taxes as are necessary to pay the debt, unless there is, in the Act itself, or- in some general Statute, a limitation upon the power of taxation which repels such an inference.”

The question, whether the existence of such limitation in a general Statute “ repels the inference ” of an intention to extend such power in the particular Statute authorizing the creation of a debt by bond, is one which must be determined on the circumstances of each case, and much is here weightily said by the City to show that, in the instant case, the inference contended for is repelled.

We find it, however, unnecessary to determine that question now. At the time of the adoption of the Act of 1869, the City possessed the power of taxation to the extent of one and one-half per cent, and all the authorities agree that this power was read into the contract and could not he revoked to the prejudice of holders of bonds issued under the Act, who had an irrevocable right to its exercise to the extent necessary for the fulfilment of their contract. As the legislature could not revoke this power, neither could it destroy the rights of these bondholders therein and thereupon, by providing that the whole of said tax above the alimony of the City, should be devoted to other purposes, to their complete exclusion from the benefits thereof. This was attempted to be done in the Premium Bond Act; but while we held that, under that Act, the premium bondholders were entitled to a specific tax provided for their benefit, we also held that the seventh Section and all other parts of said law. which militated against the contract rights of other bonded creditors were unconstitutional and inoperative. State ex rel. Moore vs. New Orleans, 32 A. 742.

It thus follows, that, although the City may levy 10 mills for its alimony, and 5 mills for the premium bonds, the latter is not to the prejudice of the right of Relator to have a tax levied, within five mills, to the extent necessary to satisfy his contract.

The objection of the City that mandamus cannot issue to compel the levy of a tax or provision of funds, without judgment previously obtained, is without foundation under our system.

The writ of mandamus is not provided, under our law, as a means of enforcing judgments. It is given as a remedy to compel the performance of duties. Relator’s right to demand the performance of duty here claimed, flows from the law and from the fact that he is holder of the bonds, whose genuineness and validity are not disputed, a fact admitted by the City, and which could derive no additional certification from a judgment. The existence and nature of the duty equally depend upou the law, and, instead of being required to be established by prior judgment, they form the very question at issue in a mandamus proceeding, and are determined by the judgment therein.

The duty to raise the sum of $9,394, by taxation upon a given assessment of property, is quite as simple and free from discretion, as would be the duty to levy a specific tax of one mill on the same assessment. It requires merely the simplest arithmetical operation to fix the rate of tax required as clearly as if it had been fixed in the law. Distinction cannot be made between the two cases; and it is admitted that mandamus lies to enforce the levy of a specific tax.

It only remains to consider the objection of prematurity of the demand.

We think the admitted fact that the City had failed and refused to perform this duty for six years, notwithstanding timely demand, and the City’s own return to the effect that it was not obliged, and did not intend, to perform it, conclusively overthrow this objection aud establish such a case of intended and certain default as justified the issuance, of the writ in advance of the time when the duty should, in the then current year, bo performed.

So far, however, as the mandamus orders the performance in subsequent years, we shall not affirm it.

The City’s default, heretofore, has been based upon her construction of her legal obligations, and it is not to bo presumed that she will repeat it after these have been judicially determined.

It might be, moreover, that the agents of the City, through whom alone she can act, may discover other objections or defenses to such demand in future years, which have not been passed upon and are not concluded by this decision.

In amending the judgment so as to direct Respondents to levy taxes to the extent necessary for the performance of the duty, we do so simply to place beyond question their authority to do so if necessary, and without prejudice to their right to satisfy Relator’s demand, in any lawful way they may select, out of the revenues.

Our judgment will be the judgment which should have been rendered by the court a qua, and will have effect as if rendered at that time, and we leave that court to regulate and enforce its execution.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled and reversed, in so far as the mandamus ordered applies to years subsequent to 1882; that it bo amended so as to authorize and direct Respondents to levy and collect such tax as may be necessary to satisfy Relator’s demand; and that, in other respects, it be affirmod, Relator to pay costs of this appeal.

Bermudez, C. J., and Poché, J., dissent.


source: Caselaw Access Project

author: Manning, C. J. Levy, J.

license: Public Domain

text:
    No. 7251.
    J. E. Austin, Receiver, vs. Noah Scovill et als.
    la the absence of the Judge of one of tlie District Courts of bFcw Orloans, another District Judge of tho same Parish could grant an appeal from a judgment rendered by tho absent Judge.
    When the appellant has prayed for an appeal aud filed his bond, within the legal delay, the omission of the Judge to sign the order cannnot prejudice the rights of such appellant.
    This suit is upon a contract to wreck a sunken steamer and remove therefrom all the movable property. The Court holds that a certain agreement in another suit against the insurers of the steamer, did not affect the contract with the wreckers.
    APPEAL from the Sixth District Court for the Parish of Orleans. J&ghtor, J.
    J3. F. Forman, for Plaintiff and Appellee.

      Bayne c6 Deneyre, for Defendants and Appellants.

      Albert Voorhies, for the Merchants’ Insurance Company, Defendant and Appellee.

      T. E. Kennedy and E. ChiapeUa, for the Union Insurance Company, Defendant and Appellee.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Manning, C. J.

This appeal is'from a judgment of the Sixth District Court of New Orleans. The judgment was rendered on July 3d, 1878, the last day of the term. On the 9th of same month the appellant prayed a suspensive appeal, obtained an order therefor from Judge Tissot of the Second Court, who was sitting to grant orders for Judge Rightor of the Sixth Court, and filed his bond of appeal in accordance ■with that'order on the. same day. ' Judge Rightor was absent'from the State on the'9th of July. ' • ■■

The plaintiff moves to dismiss on the ground that neither the Judge of the Second Court, nor any other, could lawfully act in any other Court than his own, to grant orders, and therefore the act of Judge Tissot in granting an appeal from a judgment of the Sixth Court was null. He could not sit in the Sixth Court for any judicial purpose.

It has been customary for many years for the Judges of the New Orleans Courts to arrange among themselves for the transaction of business in their several courts during the vacation, other than the trial of causes, and it is now contended that this practice is without warrant of law. A great deal of routine business has been thus conducted, and it is important to know whether it has been legally done.

The question came up in St. Romes vs. Levee Steam Cotton Press, and it was held that in the absence of the Judge of one of the District Courts of New Orleans, another District Judge of the'same parish could grant an appeal from a judgment rendered by the absent Judge. Opinion Book 45, p. 329.

We are not disposed to overrule a decision, upon which the profession has since acted, and especially when it is in accordance with the practice which had obtained, and which was uniformly followed during many years anterior to its rendition. We will assume that the Judge of the Second Court was acting under the law of 1855, p. 317, Sec. 13i

It appears that out of abundant caution, the appellant procured an order of appeal from Judge Rightor of the Sixth Court, on August 21 st, after he had returned, and it is urged by the appellee that this could not operate as a suspensive appeal, the ten days having expired from the date of the judgment;

The appellant had prayed an appeal, and filed his bond within the delay. If the Judge delayed signing the order, that should not prejudice the appellants’ rights. In Estopinal vs. Zunts, where an appellant had filed his petition and bond within the delay, but the Judge did not grant or sign the order until five days thereafter, and until the ten days had elapsed, it was held that he could not be made to suffer because the Judge did not sign the order of appeal at the time the petition and bond were presented to him. Ibid, p. 23.

The Act of 1839, now incorporated in the Code of Practice, (Art. 898) has greatly reduced the number and kind of causes for which appeals may be dismissed, and even before that, this Court said:

Accidents beyond the appellant’s control may prevent him from bringing up the record in due time. The clerk of the inferior court may die, may be disabled by sickness, or a great pressure of business may prevent him from making out the transcript, or he may neglect or wilfully omit doing it. Other events may cause a delay. In such case the transcript will be received, and no objection be allowed.” Kirkland vs. his Creditors, 8 New Series, 597.

A third ground of dismissal is the want of legal citations of appeal. The appellees were cited under the first order of appeal granted by Judge Tissot, and the plaintiff insists that that order being null, citations must have issued after Judge Rightor’s order before that appeal can have effect. At most thatwould be a neglect of the clerk, for which the appellant cannot be deprived of his right of appeal, but since we hold the appeal granted bythe Judge of the Second Court, sitting in the Sixth Court as Judge in lieu of the Judge of that Court, to be good, the citations under that order are sufficient.

If the appointment of another Receiver, viae Austin, deceased, upon Avhom citation of appeal was served, be invalid, we should not dismiss on that account, but remand for a proper party to be made.

The motion is denied.

On the Merits.

Levy, J.

This suit was brought to recover of the defendants the sum of twenty-five hundred and fifty dollars, with five per cent, per annum interest from judicial demand.

It is alleged in the petition that Noah Scovill, for himself and as master of the steamer Texarkana, which had sunk in Red River, and as agent of the Union and Merchants’ Mutual Insurance Companies, in which said steamer was insured, entered into a written contract with McClintock and Dixon to wreck said sunken steamer and to remove therefrom all the movable property thereon, to-wit: her machinery, boilers, engines, etc., all to be delivered to the order of said Scovill, on the bank or on board the steam wrecking boat “Dixie;” that said agreement was made in the name of said McClintock and Scovill alone, but really for the account of McClintock and Dixon for the one part, and for the account and benefit of said Scovill and said Insurance Companies of the other part, and the work was undertaken with the knowledge, assent and ratification of said Companies and their officers; that said McClintock and Dixon performed said work and made such disposition of all the said movable property as was directed by said Scovill, and to the best advantage of all parties concerned, and faithfully executed said contract in all particulars. That with the knowledge and assent of said Scovill and for the preservation of said property, they shipped a large portion of it to New Orleans on their own boat, for which they claim three hundred dollars as freight, in addition to the $2,250 stipulated in the contract.

The contract purports in its body to be between McClintock and Scovill, and is signed by both of them in their individual capacities.

There was judgment against the defendant, Noah Scovill, for the sum of $1,417.50, and in favor of the defendants, the two Insurance Companies.

A remittitur of $366.25 was entered by the plaintiff, which reduced the judgment to the sum of $1,081.26.

A suspensive appeal was taken by the defendant, Scovill, and a devolutive appeal by the plaintiff, Receiver, the latter being taken to the judgment so far as it rejects the claim and demand against the Insurance Companies.

The record discloses the following facts:

Defendant, Scovill, was the owner and master of the steamer Texarkana, engaged in the navigation of Red River, and insured the boat, which was valued at $30,000, in the two Insurance Companies for $10,000 in each, he being, practically, his own insurer for the remaining $ 10,000 of said value.

While thus insured, on the 20th of August, 1870, the steamboat sunk in Red River, some thirty miles or more below Shreveport, the sinking resulting from a collision with another steamer. As soon as the accident occurred, Scoville, master and owner, telegraphed to the insurers in New Orleans, who at once sent Captain Andrews of the New Orleans Wrecking Company, to the scene of the disaster. Captain Andrews reported that the Texarkana was not worth raising. Scovill came to New Orleans, made proof of the loss, and abandoned the boat to the Insurance Companies, who refused to accept the statement or to pay the loss, on the ground that the collision was the result of negligence on the part of the captain and pilot of the Texarkana, which relieved them from all liability. Scovill then returned to the wreck and on the, 3'0tli of September, .1870, entered into a contract with McClintock, whereby the latter was to remove all tlie movable property on the boat for the sum of $2,250. Suit was instituted to recover the amounts of the policies against the Insurance Companies and pending the appeal to the Supreme Court of.the United States on the judgment rendered against the Union Insurance Company, an agreement was entered into, in the present suit, whereby it was agreed “ that'the trial of this case shall bo postponed until a decision is rendered by the Supreme Court in the case of Kennett & Bell vs. The Union Insurance Company, et als., in which case is involved the question of the liability of the Union Insurance Comp'any on the policy sued on in that case; so it is agreed tliatdhe dócision of said Supreme Court on that question shall be conclusive of the same question in this case.”

It is contended by plaintiff that the agreement bound the defendants absolutely, and was intended to fix conclusively defendants’ liability, and as the suit was' decided by the Supreme Court adversely to the Insurance Company, defendants are estopped from disputing the claim, in this suit. We do not. agree with plaintiff in his construction. The agreement distinctly and specifically refers to the question of the liability of the Company cm the policy, which liability was denied on the grounds above stated, and the decision as to such liability on the policy was to be decisive óf the same question in this suit. The reason for this is manifest: if the Insurance Companies were not liable on the poiicy, under no circumstances, under the pleadings herein, could they be held responsible for any portion of the claim of McClintock; hut even if thus liable on the policy, there was nothing in the agreement which prevented them urging other defenses against the claim of McClintock.

An examination of all the testimony disclosing all the circumstances, of the case, irresistibly leads us to the conclusion, that tlie abandonment of the wreck was not accepted by the Companies; on the contrary, they refused the abandonment, denied their liability on the policy of iñsúrance, and thus virtually disclaimed any inter íst in the wreck, etc. Tile master had communicated with them, by correspondence and personally, and they bad refused to enter into a contract with McuClinto'ck to raise the boat, on terms proposed by him, and the written contract entered into with McClintock by Scovill was on its face a contract with Scovill individually, and without the slightest reference or allusion to the Insurance Companies or any other parties. What may have been said by Scovill at the time, out of the presence of, and without the knowledge or ratification of the Companies,-does not, under the circumstances of the case, bind these Companies, and Scovill’s state-, mentas to the knowledge and consent and approval of the Companies, uncorroborated by other testimony or supporting facts, is completely counterbalanced by tbe positive contfadiction of tbe presidents of tbe Companies.

This view of the case renders it unnecessary for us to consider the other points raised both by plaintiff and defendants, and even dispenses us from cousideratiou of the sale of the property, and disposition of its proceeds by and between McClintock and Scovill, without consultation with the Companies, or regard to the interests which these two allege the Companies had, and without accounting for the said proceeds of sale.

The judgment, in our opinion, renders justice to the parties, and we shall not disturb it.

The judgment appealed from is therefore affirmed, at costs of appellants.


text:
    No. 8497.
    The State of Louisiana vs. George Moultrie.
    An indictment charging the accused with feloniously and knowingly receiving the property, and that “ he well knew the same was stolen property,” is in sufficient conformity to tbe statute.
    Sfor is it necessary that tbe indictment should state who stole the property, or from whom the accused received it.
    The charge that the accused stole the goods is sufficient, without the further averment that he took and carried them away.
    Xor does the statute make any formal requirement as to tbe mode of expressing ‘the criminal intent of stealing the property.
    APPEAL from the Twenty-fifth Judicial District Court, Parish of Vermillion. Clegg, J.

      Jos. Á. Breaux aud P. L. BenUmlet, for the Defendant and Appellant:
    1. The defendant being charged, with having received stolen property, to sustain the charge it was necessary to allege and prove that tbe property liad been feloniously stolen. The information should allege that the property was received with intent to deprive the owner of it. Other essential averments have been omitted. Waterman, p. 535, Hos. 28 and 34.
    2. Section 832 of the Revised Statutes, it is contended the defendant has violated, reads j “ Whoever shall receive or buy any goods or chattels that shall be feloniously taken or stolen.” It was necessary to allege that the property had been feloniously stolen. J3y the omission of the word feloniously, the information is null and void. State vs. Thomas. 29 A. 601 j and cases: State vs. Kennedy, 6 R. l>90 5 State vs. Hess, 10 A. 19Ó $ Wharton, Volume I, Section 399.
    J. C. Egan, Attorney General, for the State, Appellee:
    1. A refusal by the Judge a quo to charge the jury as requested is right and proper, when the charge requested is not applicable to the state of facts before the jury, and it is calculated, in liis opinion, to mislead them,

      2. lu an indiotment for knowingly receiving stolen goods, it is not neoessary to charge any individual by name with the laroeny, nor is the thief in any such prosecution to be considered as principal. Bishop on Crim. Procedure, 2d Ed., Yol, II, Seo. 782; Waterman’s U. S. Crim. Digest, Seo. 33, p. 535.
    3. Hor is it necessary to allege that the goods were received “with intent to deprive the owner thereof,” beoause the statute defining the offense doos not make said clause one of the ingredients thereof. Sec. 832, B. S.
    4. Por the foregoing reason it is unnecessary to allege “that the goods said to have been received, had boon taken and oarried away by the pretended thief.” It is not a necessary averment at common law. Waterman’s U. S. Crim. Digest, Sec. 36, p. 535; Cora. vs. Lakeman, 5 Gray, 82.
    5. Bor is it necessary to oharge that the goods received had boon feloniously stolen. 25 A. 526.
   The opinion of the Court was delivered by

Fenner, J.

The defendant appeals from a conviction and sentence for receiving stolen property, as denounced by Section 832, R. S.

The errors assigned are embodied in a motion in arrest and in hills of exception to rulings of the Judge in charging the jury.

We will first consider the grounds presented by the motion in arrest, viz:

1. That the indictment does not charge that the goods had been feloniously stolen. The indictment charges that he did feloniously and knowingly receive, etc.,” the property, and that he well knew the same was stolen property.” This brings tlio case precisely under the authority of State vs. Allemand, 25 A. 526, where the same objection was overruled.

2. That the indictment does not set forth who stole the property or from whom defendant received it, nor does it allege that the thief was unknown.

It seems to be well settled that such averments are not essential. Waterman’s U. S. Cr. Dig. p. 535, Sec. 33; 2 Bishop Cr. Proc. § 982.

3. That the indictment does not charge that the goods had been taken and carried away,” as well as stolen ” by the thief.

The charge that they had been stolen, is sufficient. Com. vs. Lakeman, 5 Gray, 82.

4. That it does not allege that the property was received with intent to deprive the owner thereof.”

Criminal intent is, of course, of the essence of the crime, but the Statute makes no formal requirements as to the mode of expressing the same. We think it is sufficiently expressed here by the charge, that lie did feloniously receive and convert to Ms own use the property.

The bill of exceptions is taken to the refusal of the Judge to give two charges.

As to the first charge asked, touching the effect of the possession of stolen property as an element of proof, we tliink the Judge stated the law correctly and completely when he charged that possession of stolen property was not conclusive proof, either of larceny, or of receiving goods, knowing them to be stolen by the possessor, but was a fact to be passed on by the jury in the light of surrounding facts and circumstances.”

The second charge asked and refused was this: If it should appear on the trial of the defendant that the offense with which the principal is charged did not amount to a felony, and if felony is not charged, the prosecution cannot be maintained.

The Judge refused this charge as being a legal proposition not in any way applicable to the case; because a felony toas charged under the indictment; and because there is no principal in the crime charged except the defendant, the original thief not occupying that relation to the offense.

We cannot say the Judge erred.

Judgment affirmed.


text:
    No. 8502.
    C. D. Favrot vs. The Parish of East Baton Rouge.
    Tiie vested rights of plaintiff under liis judgment could not be affected by subsequent legislation.
    The right of plaintiff to be paid by assessments in the years 1874, 1875, 187C and 1877, as ordered by the judgment in his favor, is not lost or destroyed by the fact that such assessments were not properly made. This case is different in that respect from that of Nelson vs. Parish of St. Martin, 33 An, 1122.
    There being no evidence in the Record that plaintiff’s judgment against the municipal corporation was based upon a contract, he is not entitled to the proceeding prayed for to enforce the levy of a tax beyond the constitutional limitation; but his right to proceed anew and make the proper showing is reserved.
    APPEAL from the Seventeenth Judicial District Court, Parish of East Baton Rouge. Sherburne, J.

      O. D. Favrot and Herron di Beale, for Plaintiff and Appellant.

      George W. Buchner, District Attorney, and K. A. Gross, for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

In 1873, the plaintiff obtained judgment against the Parish of East Baton Rouge for the sum of $2,612, with legal interest from judicial demand, and, in accordance with the Act of 1869, in force at the time, the judgment ordered the Parish authorities to assess and collect a tax for its payment, said tax not, however, to be assessed and collected in one year, but, by agreement between the parties, to be equally divided between the four years .1874, 187 5, 1876 and 1877. On appeal to the Supremo Court, the judgment was affirmed. A tax was levied to pay the judgment, with others, but, in the assessment thereof, the police jury included warrants not covered by the judgments.

O’Conor and other taxpayers then brought' suit, enjoining the collection of the tax and asserting the nullity of the judgments.

By final judgment of this Court, the demand for nullity of the judgments was rejected, but the injunction was perpetuated, because the assessment included claims not covered by the judgments, and the Court ordered the police jury to make a new and correct assessment. O’Conor vs. Favrot, et al., 1876, N. R.

All the judgment creditors then joined in a suit, in the nature of a mandamus proceeding, to compel the Parish authorities to assess and collect a tax for their payment. This suit was dismissed in this Court on the ground of misjoinder of parties, reserving the rights of the plaintiffs to assert and enforce their claims according to law. Favrot vs. Parish East Baton Rouge, 30 A. 606.

The present proceeding is taken by plaintiff to enforce the assessment and collection of a tax to pay his judgment.

The defense of tho Parish is throe-fold, viz:

1. That the law authorizing the assessment of a tax to pay the judgment was repealed by the Act of 1877.

2. That the plaintiff cannot enforce the collection of a tax in 1882 that should have been collected in 1874, ’75, ’76 and ’77.

3. That Art. 209 of the Constitution forbids the taxation beyond ten mills, which rato has already been assessed and devoted to other lawful purposes.

The first two defenses have no force. At the date of his judgment plaintiff had the unquestionable right to have a tax levied for its payment. That right, whatever the foundation of the judgment, was a vested one, and under the State Constitution, could not be destroyed by subsequent legislation. The assessment made by the police jury, in obedience to the judgment, having been decreed to be null and void, and tho proper authorities having been ordered to make, a new and correct assessment, that duty continues until performed, and plaintiff cannot be deprived of his right by mere legislative action, nor by delays in its enforcement brought about by legal resistance on the part of the Parish. Shields vs. Pipes, 31 A. 765; State ex rel. Nelson vs. St. Martin, 32 A. 884; Huey vs. Jackson Parish, 33 A. 1092.

It is a mistake to suppose that the later case of State ex rel. Nelson vs. St. Martin, 33 A. 1122, countenances a different view. Under the peculiar circumstances of that case, the Court assumed authority to look beyond the judgment and examine the contract itself on which it was founded.

The case only held that, inasmuch as the contract on which the Relator’s judgment was founded, only entitled him to be paid out of taxes of 1865, 1866,1867 and 1868, he had no contract right to tax in later years. We do not mean to affirm the doctrine in that case, but only to state it.

The third defense, however, is more serious. Unless plaintiff’s judgment was founded on a contract, and is so protected by the federal constitution, it cannot be enforced against the prohibition of Art. 209 of the Constitution, the limit of taxation fixed in which has already been exhausted. State ex rel. Folsom vs. City, 32 A. 709; State ex rel. Nelson vs. St. Martin, id. 884.

We find in this record only, the pleadings in the case in which plaintiff’s judgment was rendered, from which it appears that it was founded on certain warrants held by him, but there is no description of what these warrants were and no copies thereof are found. They may liave embodied in themselves a contract, or they may have been evidences of contract obligations. But they may have been mere acknowledgments of debt arising otherwise than from contract, or mere orders to pay, by one officer of the corporation on another, to satisfy other than contract obligations.

We are unable to say, from this record, that the judgment is founded on a contract, and the petition does not even so allege.

Our duty is to enforce the mandate of the Constitution plenarily, •except so far as restrained by the superior power of the Constitution of the United States. Those who invoke that protection must be panoplied from top to toe.

“If there’s a hole in a’ your coats,
I rede ye tent it.”

Judgment affirmed at appellant’s cost, without prejudice to his right to proceed anew and establish the foundation of his judgment.

Bermudez, C. J., and Poehé, J., concur in the decree.


author: Bermudez, C. J.

text:
    No. 7589.
    Abraham Bass vs. The State of Louisiana.
    The State, in tlie exercise of her police powers, has the exclusive right to determine the propriety, location and mode of building levees within her borders. After she has thus decided and has contracted for the public enterprise, a citizen, riparian owner, on whose land the levee is about to be built, cannot effectively remonstrate and require that it be constructed differently. In case of non-compliance with his demand by the Board of Public Officers in charge of the work, and in the event of subsequent damages sustained by him, he cannot hold the State liable either for compensation, as for property taken for public purposes, or for the injury sustained by him in consequence of the destruction of the same. It is damnum absque injuria.

    APPEAL from the Fifth District Court for the Parish of Orleans, Bogers, J.

      Thos. J. Semmes, for Plaintiff and Appellee:
    CChe discretion of officers charged with the construction of levees, in regard to their location and their necessity, as well as the amount of land to be appropriated in satisfaction of the servitude established by Art. 665, O. C., is subject to judicial control. 11 A. 160; 20 A. 309; 66 N. T. 407; 23 Minn. 167 ; 22 A. 60.

      J. O. Egan, Attorney General, for Defendant and Appellant:
    Commissioners empowered to straighten a river, to protect a country against inundation, are not liable personally for incidental injuries to individuals. Neither is there any claim against the public. Green vs. Swift, 47 Cal. 536,
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action brought against the State, with her consent, given by Act 82 of 1878, to recover $75,000 damages, for the alleged tortious construction of a levee.

From a judgment allowing plaintiff that sum, this appeal is taken.

The plaintiff claims to have suffered those damages in consequence of the manner in which the “ Bass Levee," in the Parish of East Carroll, in this State, was constructed by State officers, acting under Act 140 of 1877.

He complains that, towards the end of 1877 and the beginning of 1878, the State Board of Engineers and a contractor caused that levee to he located and constructed on the Mississippi river, in said parish : that, instead of running the lower line of said levee to the old levee, at, or near Ms plantation, at a designated point, which would have been perfectly safe and all that public necessity required, tlie State, through its said officers, has located and built the said line entirely in the rear of his plantation, below a certain point; thus, not only throwing out said plantation, hut obstructing the natural flow of the water hack into the bayou and swamps in the rear, and thereby causing the water to hack up and entirely overflow his plantation, which, from its peculiar positiou, is uot otherwise liable to inundation, and has not been overflowed for a quarter of a century, producing large crops of corn and cotton.

He further charges that his rights have been invaded; that the location and construction of said levee, in the rear of his plantation was illegal and unnecessary to secure the country from overflow, and that whether necessary or not, the State had no right to obstruct the natural flow of the waters and cause the consequent inundation, damage and almost total loss of his large and valuable plantation, reducing him from comparative wealth to poverty.

The State pleaded the general issue.

The fact of the building of the levee between the points mentioned in the petition, and the amount of loss sustained in consequence of the overflow, appear to be well established, so much so, that it seems to be conceded that, if the plaintiff is to recover at all, he is entitled to the whole amount of damages claimed.

The question presented is one of great magnitude to the State and to the people.

It is simply whether the State can be held liable for the omissions of her officers acting in furtherance of law, in spite of the remonstrances of a citizen alleging consequent injury.

Por a proper consideration and solution of the question, it is necessary to divide it and to inquire:

1. Whether the State has the right to determine the propriety, location and mode of building of levees on the banks of navigable rivers within her territory, and whether, after she has so decided and has contracted therefor, a citizen on whose land the levee is to be built, can require It to. be constructed differently.

2. Whether, in case of non-compliance with his demand, by the officers in charge of the work and of damages thereafter sustained by him, he can hold the State liable for the injury thus suffered.

I.

There exists an implied assent on the part of every member of society, that his -own individual welfare shall, in cases of public necessity, yield to that of the community, and that his property, his liberty and even his life shall, in certain cases, be placed in jeopardy, or even sacrificed for the public good.

Hence it is, that a private mischief is to be endured, rather than a public inconvenience or calamity, and that in such cases, individuals sustain injury for which the law gives no redress. Blackstone Com. 21 Ed. 138, 139; Grotius, B. 3, C. 20, S.7, § 15 Mortes 9, Esp. deslois, lxxvii, Ch. 23; 1 Hale P. C. 54.

The great purpose for which men live in a state of society is to secure’ their life, their liberty, their property and the pursuit of happiness. Those rights are unalienable, when they have not been abridged by some public law enacted for the benefit of the whole,

“ It is a settled principle,” says Chief Justice Shaw, (7 Cush. 53 Mass.) “growing outof well ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, All property is derived directly or indirectly from, the government and held to those general regulations which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations as the legislature, under the governing and controlling power of the Constitution, may think necessary and expedient.”

This is very different from the right of eminent domain, which expropriates upon indemnity for public utility. It is the police power which is inherent to every government under its organic law, and which is exercised without making compensation. What damage or injury is occasioned by the exercise of such power is damnum absque injuria.

Vattel says, Sec 1, C. xx, $ 244: Le droit qui appartient a la soeiété ou an souverain de disposer en cas de nécessité et pour le salut public de tout bien renfermé dans l’État, s’appelle Domains éminent. Ce droit fait partie du souverain pouvoir. Domat Loix Civiles, 1. 1, t, 11, s. xiii. 432, et seq. Ordinance of Philip le Bel of 1303.

This absolute power of the State over the property of its citizens or subjects seems to be conceded by all writers and to be declared under all systems of governments. Differences exist, however, as to the right' of compensation in somecases. Sedgwick on S. & C. L., Ed. 1857, pp. 499, 533; Cooley, C. L,, C. XVI, pp. 713,714, 715, 731 andnotes ; Rowe on Inter-State law, p. 246 : 7 Cush. 53, 82; 10 Pet. 662, 737 ; 3 How, 212; 7 Greenleaf, 292 ; 27 Vt. 149 : 7 Cow. 351.

There are cases where it becomes necessary for the public authorities to interfere with the control by individuals, of their property, and even to destroy it, when the owners themselves have fully observed all their duties to their fellows and to the State, but where, nevertheless, some controlling public necessity demands the interference or destruction. Strong instances exist where it becomes necessary to take, use or destroy the private property of individuals, to prevent the spreading of a fire, the ravages of pestilence, the 'advance of a hostile army, or any other great public calamity. Neecessitas publica major est quam prvoata. Cooley, C. L., p. 746, and authorities in note.

The laws passed for such purposes, it is well settled, though they may disturb tlie enjoyment of individual rights, are not unconstitutional, though no compensation is made. They do not appropriate private property for public use, but simply regulate its enjoyment by the owner. If he suffers injury, he is compensated, in the theory of the law, by . sharing in the general benefits which the regulations are intended or calculated to secure. Those regulations rest upon the maxim : Salus populi suprema lex. Dillon on Mun. Cor., 210 and note, et setp

Lord Bacon tells us in his Essays (of Judicature) that Judges ought, above all, to remember that conclusion of the Roman twelve tables, and to know that laws, except they be in order to that end, are but things captious and oracles not well inspired.

The Legislature, as the authoritative representative of the public and the constituted judge of what is demanded by the general weal, has the right to say to every proprietor: the public needs of your property so much,” and the individual must submit. * * It is a tremendous power and one which is without theoretical limits, and, indeed, without any legal limitations, except such as may exist in written organic restraints upon legislative action. Dillon, 453; Sedgwick, 499.

Private property may consequently be taken for public use, in the exercise of the general police powers of the State, without making compensation therefor. Dillon, 455, 864, § 756, and note with authorities, § 758.

It is upon those solid foundations that the Article of our Code was made to rest, which declares:

Servitudes imposed for the public or common utility relate to the space which is to be left for public use by the adjacent proprietors on the shores of navigable rivers and for the making and repairing of. levees, roads and other public or common walks. All that relates to this kind of servitude, is determined by laws or particular regulations.” C. C. 661; 665 R. C. C.; also Act 1829, Eeb. 7, § 3, p. 78, and the laws as compiled in the several revised Statute books hereafter mentioned.

In the early days of the State, the levees were made and kept in repair at the joint expense of the front proprietors. The law and clauses in the original grant burdened those who were contiguous on the river with the construction and repair of the road, ditches, bridges, and the levee. 6 Mar. 235; 2 A. 329 ; Martin’s History; what Dumont says in 1728; Gayarré’s History, v. ii, p. 2; Ordinance of O’Reilly, Feb. 18, 1770.

The duty was subsequently imposed upon police juries, who were vested with all necessary powers for the purposes. Rev. Stat. of 1852, p. 507; 1856, p. 481 ; 1870, p. 589.

In 11 A. 167, this Court said; “ To reconcile the controlling interest of tho public with the subordinate interest, of the individual, is ever a delicate problem. When they come in conflict, the latter must yield. The safety of the public has first to be consulted. The law concerning tho expropriation of private property for public use, does not apply to such lands upou the banks of navigable rivers, as may be found necessary for levee purposes. Tbo quantity of land to bo taken for such purposes, presents a question of police, or administration, tobe decided by tho local authorities, whose decision should not be revised except for tho most cogent reasons, and when there has been manifest oppression or injustice.

Referring to the levee Act of 1829, in 12 A. 659, the Court also said: “ Tiie object of the Act is apparent. It is a matter of piublie necessity to shelter the inhabitants against inundation. As the property would be of no value without tho levee, the legislature had the power to compel such riparian proprietors to make thoso levees and roads in front of their plantations, without further compensation than the increased value which such works would confer on their lauds.”

In 2G A. 559, it was said : The building of levees in Louisiana is a public enterprise, or work which concerns at least half of the peopile of the State and, incidentally, the whole State. Of the propriety of constructing' levees, the general assembly is the exclusive judge, because we find in the Constitution no limitation upon the right to exercise the power.” Cooley, p. 589.

Under our law, tho banks of a river are understood to be that which contains it in its ordinary state of hig'h water. Where there are levees established according to law, the levees form the banks. R. C. C. 457. Works and buildings on the banks of a liver may bo destroyed, notwithstanding opposition by tho owner. R. C. C. 861.

When, by the mutation of their banks, navigable rivers reach the land of a proprietor, he continues to be subject to all the legal servitudes impiosed upon riparian owners. Houses and works on land thus brought under such a servitude, must, like the land of which they form p>art, be yielded upi to piublic service, without compensation, for their demolition is the act, not of man, but of God and the law. Such buildings cannot always obstruct the bank, although they may remain there until destroyed by time, accident, nature, or the owner. This would seem to be a logical sequence of Article 862, R. C. C.

In such cases, the owner is not absolutely expropriated. In case of the formation of a batture, where the river had encroached, and of the removal of the leveo to a point nearer the water line or bed of the river, the land recovered having continued to be, or having become, the property of the ripiarían owner, would be subjected to the exercise of all the rights of absolute ownership over it, contingent on the renewal of the State police prerogative.

It is clear that, upon these sound principles which have been and are universally recognized and enforced, particularly here, the State had the undoubted right, in furtherance of public good, to pass and to execute levee laws, as she has done, specially that of 1877, under the liberal operation of which, the work complained of was reported upon, advertised, contracted for and completed, for the prevention of a great public calamity. 16 Ivans. 578.

The powers which the State possesses necessarily must bo exercised by agents, arid are transmissible to them by the State. Where, therefore, the State has the legal right to undertake a public work, the execution of which is likely, unavoidably, to entail private injury, the State has the right, as a corrollary, of delegating the power to agents, who then are clothed with the necessary incidental authority to do that which the State herself primarily had the right of doing. No injury, wrong, or damage, can be done, or can result, for the commission of an act authorized by law, and, therefore, none can be recovered. Lex neminem ledit. 1 Cal. 462 ; 4 Cal. 81.

The Act of 1877 is legal and constitutional, being prohibited by no organic law.

It makes it the duty of the Board of Engineers, which it creates, to make a careful survey of all the public- levees of the State as soon after the subsidence of high water as practicable, in order that contracts for work may be let out at the earliest possible moment, and to report to the Governor the extent of the repairs necessary, and of levees to be constructed, which are of prime importance to the State at large, and beyond the means of parochial authorities, furnishing estimates and specifications.

The Act further provides that, upon the receipt of the report, the Governor shall advertise for proposals to make the levees, or repair them, as may be recommended, and shall award the contracts therefor to the lowest responsible bidders.

It is not disputed that the formalities required by law, as conditions precedent to the giving out and execution of the work, were complied with j neither is it contended that the plaintiff interposed any objection to the awarding of the contract, after advertisement, for the construction of the levee In question. But it is insisted that, at an additional expense of 817,000, which the plaintiff offered to pay, the levee could have beeu constructed so as to save him ; that the engineers, in determining the line upon which the levee should be built were guided solely by consideration of what, in their judgment, was of the greatest benefit to ike State at large, without regard to private interests, and that, upon representations and offers of plaintiff, tlie Board consented that the lino might be changed without expense to the State; but, meanwhile, the work of constructing the levee was under contract and in progress, so that it was essential that the contractor should become a party to any arrangement for a change, and plaintiff, failing to make such arrangements, the levee was finally completed upon the location as originally fixed.

It cannot be doubted that the Board of Engineers was a public political organization, created for a great public enterprise, clothed with extensive powers of inquiry, discrimination, and quasi judicial discretion, for purposes of determination and execution. It is not disputed that they exercised their judgment and entered upon the work complained of, only after full compliance with all legal requirements and after a contract had been formed by the executive, and which was binding on the State, for the execution and completion of the work. It is not shown that they were guilty of any oppression or injustice, or malice. Qui jussu judiéis aliquod feoerit, non videtur, dolo malo feeisse quia parere necesse est. Actus non fheit ream, nisi mens sit rea. Cooley on Torts, pp. 379, 410; Meeks on Damnum, Absque Injuria, $ 50, p. 63.

On the other hand, it is apparent that, if the plaintiff had occasion to complain, he has failed to make his causes of complaint seasonably known. There is nothing to establish that, ready as he says he was to pay $17,000, to have the levee constructed differently from what it was, he has, in the least, exerted himself to oppose the report of the engineers and the awarding of the contract; that he used any portion of said sum to protect, by some work, that portion of his plantation which was left out of the levee and which was subsequently so seriously injured. It may well be that had he interposed timely objections to the report, or to the giving out of the contract, the Board might have altered their plans and had them to conform to his suggestions. He permitted the contract to be awarded and afterwards failed in undertaking to accomplish an arrangement with the contractor. Por such omissions and derelictions he cannot, in equity, be permitted to blame the State or her officers, but must lay reproach at his own door.

It may well be that, had til© Board disregarded the provisions of the law and been guilty of manifest oppression, or injustice, or malice, he would not have been without remedy. His silence and inaction, when he should have spoken and objected, amount to a tacit approval and acquiescence of the contemplated work.

So that it is apparent that, while the State officers must be credited with efficiency and a desire to promote public good and subserve private interest, the plaintiff has not relieved himself from the imputation of lamentable and fatal laches.

n.

It was not shown that the civil engineers and the contractor have deviated, in any respect, from the line which they were to follow for their conduct, under the law. On the contrary, it was established that the. work was done after compliance with all the requirements prescribed by the Statute, as conditions precedent. Were it not so, how could the State be held liable on account ox any of their acts, particularly where they had no authority to alter the proposed construction.

It is remarkable that the law upon which rest all actions for the reparation of injury sustained, wisely provides to the extent only, that:

Every act of man, that causes damage to another obliges him, by whose fault it happened, to repair it.

It does not include the sovereign, the State, who, as a rule, cannot be sued. The maxim is rex non potest pecewe. In such cases, the rule respondeat superior, does not apply.

This is so true, that no action can be brought against the State without her permission, that her consent had to be obtained and was given to authorize the present suit.

The consent to be sued does not at all imply an admission or a confession of liability. It is a mere act of grace which does not relieve the plaintiff from the obligation of making out his case, both in fact and in law. 33 A. 498.

By permitting herself to be sued in this case, the State merely consented to submit to a court of justice the question of her liability under the facts and propositions presented by both the plaintiff and herself. Otherwise, upon the consent of a State to' be sued, judgment should at once be entered up against her as upon a confession. The Court is called upon to determine the issues presented, not, however, as though the same were submitted between individuals on both sides; for individuals do not enjoy the rights, privileges, prerogatives and attributes of a sovereignty. We are to decide the differences between an individual, a citizen of the State, bound to submit to. her constitutional laws and the State herself; and, in so doing, to determine whether or not the State had a rigid to legislate as she has done, and to cause the work complained of to be accomplished in the manner in which it was, and whether, by not conforming with the wishes and by not submitting to the representations of plaintiff, and carrying on and completing the work as contracted for under the law, the Board of Engineers have imposed upon the State the responsibility and liability in damages which is sought to be fastened upon her.

We have stated what the police powers of the State are ; that they could have been exercised as was proposed by the Act of 1877, and that the execution of that law could saddle no responsibility.

Indeed, no act- of omission or commission of tlie Board of Engineers and contractor, viewed as public officers, clothed with a quasi juilidal character, could impose a liability on the State.

“ It is plain,” says Judge Story, that the government itself is no! responsible for the misfeasances or wrongs, or negligences, or omissions of duty, of the subordinate officers or agents employed in the public service; for it does not undertake to guarantee to any jiersons the fidelity of any of the officers or agents whom it employs, since' that would involve it in all its operations, in endless embarrassments and difficulties and losses, which would be subversive of public interests, and indeed laches are never imputable to the government.” Story on Agency, No. 319; 8 Wend. 403, 422; 9 Wheat. R.720, 723; 4 Tenn. R. 796; 11 Wheat. 185; 8 How. 106.

The dilemma seems irresistible in this case: Either the Board of Engineers, the public agents of the State, have acted within the scope of their mandate and authority, of they have not.

If they have, then as they have carried .out a valid law, neither they nor the State can be held responsible.

If they have acted beyond that scope, their principal cannot be made responsible for their unauthorized act, and they alone are chargeable.

In 1874, a case somewhat similar to the one at bar was presented in California, and the Supreme Court of that State held substantially as follows: ,

It is within the police power of the State to authorize the channel of a river to be turned or straightened, in order to protect from threatened inundation a populous portion of the State, and such work is of a public character.

The bed of a river is a- public highway of the State and within its absolute control, subject to the rights of commerce.

A Board of Commissioners appointed by an Act of the legislature, with power thus to turn or straighten the channel of a river, are not liable for damages to others caused by the work, resulting from mere errors of judgment, provided they keep within the scope of their powers and exercise their judgment honestly, and do not act maliciously, oppressively or arbitrarily.

If the work done under the Act causes injury, the damage thus-sustained is not taking land for public use, and the Act is a sufficient defense to an action brought to recover from such loss. Green vs. Swift, 47 Cal. 541.

If, says Cooley, the State, under its power to provide and regulate highways, should authorize the construction of a bridge across a navigable river, it is quite possible that all proprietary interest in land upon the river might be injuriously affected, but such injury could no in ore give a valid claim against the State for damages than could any change in the general laws of the State, which, while keeping in view the general good, might injuriously affect particular interests. P. 542. In support of such theory, he refers to the case of an authorized obstruction to the flow and reflow of tide waters, in which the Court said that if the co-terminus proprietor ■ suffers in consequence, it is damn urn absque injuria. 3 Cush. 91; 6 N. Y. 522; 13 Gray, 193; 14 S. & R. 71; 4 Pick. 464; 7 Greenleaf, 292; 4 Cal. 81; 1 Cal. 462.

In Prance it is a constant principle, on subjects like this,'that the State is not responsible for the consequences of public works. C. N. Sivey, Art. 1383, p. 658, §§ 124,125,126.

Indeed, how could the State be held liable, when citizens could not be subjected to indemnify loss sustained. J. P. 1813, p. 384; 1861, p. 888; Chardon droit d’alhivion, 345; Demolombe 11, No. 30; 30 A. 1359.

It is glaring that the burden of building the levee was upon the plaintiff; that the State was under no obligation to construct it; that she did so of her own motion for the protection of a large body of her people; that the plaintiff could still have built the levee which, he says, should have been constructed for the better security of his lands, crops, buildings and other property thereon; that he has not done so, and that what loss or damage he may have sustained is attributable, not to the State, but to his own abstentions.

We, therefore, conclude, that the State, in the exercise of her police powers, has the exclusive right to determine of the propriety, location and mode of building levees witlxin her borders ; that after she has so decided, and has contracted for the public enterprise, a citizen or riparian owner, on whose land the levee is about to be built, cannot effectually remonstrate and require that it be constructed differently, and that in case of non-compliance with his demand by the board of public officers in charge of the work, and in the event of subsequent damages sustained by liim, he cannot hold the State liable, either for compensation, as for property taken for public purposes, or for the injury sustained by him, in consequence of the destruction of the same.

There is error in the finding of the District Court.

It is, therefore, ordered and decreed, that the judgment ax>pealed from be annulled and reversed, and proceeding to render such judgment as should have been rendered.

It is ordered, adjudged and decreed, that there be judgment in favor of the defendant, the State of Louisiana, rejecting plaintiff’s demand, with costs in both Courts.

Levy, J., absent.


text:
    No. 7581.
    Antonio Augusti vs. Louisiana Lottery Company et al.
    Act No. 9 of 1874 is constitutional. It was so decided by the Supreme Court.
    The fact that it was subsequently pronounced unconstitutional by a District Court on an application for habeas corpus does not make it such.
    Therefore, the defendant Company, acting with probable cause, cannot be lesponsible in damages.
    APPEAL from the Fourth District Court for the Parish of Orleans. Houston, J.

      F. G. Zacharie and H. 8. Lang, for Plaintiff and Appellee :
    1. Act No. 9 of 1874 is in plain conflict with Arts. 6 and 94 of Constitution of 1868 in depriving the accused of the trial by jury, and granting judicial powers to recorders prohibited.
    2. ActNo. 9 of 1874, by prescribing a different penalty, repealed Act No. 120 of 1855 and Act No. 21 of 1866. 21 Pick. 373 ; 4 Bur. 2026.
    3. Act No. 9 of 1874 having been declared unconstitutional by the Judge a quo in the habeas corpus, the defendant cannot plead presumption of its constitutionality at the time of the second arrest.

      T. J. Semines <& Payne and Joseph P. Hornor, for Defendants and Appellants:
    1. Act No. 9 of 1874 is constitutional. 30 A. 454.
    2. In an action for malicious prosecution, when defendants show, by plaintiff's admissions and testimony, that they had probable cause for his arrest, there must be judgment for defendants.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff claims $25,000 damages, for his unwarranted and malicious arrest by the defendant. The defense is, special legal authority for the act and good, valid cause. The case was tried by a jury who returned a verdict in favor of plaintiff for $0.01. From a judgment in conformity with the verdict, the defendant lias appealed. The plaintiff has asked for no amendment.

It is not disputed that the plaintiff did sell lottery tickets, in violation of Act 9 of 1874, in the month of May, 1878 j but it is charged that the Statute is unconstitutional, and so never existed, for the double reason, that it deprived of the trial by jury and granted to City Recorders prohibited powers. In support, reference is made to Articles 6 and 94 of the Constitution of 1868, in force at its adoption. It is further charged that the Act had been judicially declared by a competent court thus to be unconstitutional, previous to the arrest complained of, and this, to the knowledge of the Company.

The record indeed shows, that on an application for a habeas corpus. the Act being considered as violative of the organic law, the prisoner Was released from custody.

The correctness of the ruling in that case cannot be inquired into by tliis Court, as it is not before it for revision.

It appears, however, that the same Act, No. 9 of 1874, was assailed on identical grounds, in the case of the State ex rel. Geale vs. Recorder, 30 A. 454, in which onr immediate predecessors, considering further Act 10 of the same session, and after elaborate research and mature deliberation, supported by authority cited, expressed the opinion that the Act was not unconstitutional.

It does not appear, nevertheless, that the charge of the repeal of the Acts of 1855, No. 120, and of I860, No. 21, was presented or determined in that case, sed quid hide t

We do not propose to decide whether the views tints announced by the late Court, declaring the Act to bo constitutional, were or not effectually overruled and nullified by the' ruling of the District Judge, on the application for a habeas corpus, but it is manifest that, for adhering in preference to the finding of the highest tribunal of the State, and for enforcing under it, its reputed rights, the defendant Company cannot be held responsible for damages. The opinion and decree in that case -surely can be more successfully invoked for protection, than the advice of counsel, however learned in the law, could have been.

If it be true, as contended, that the Act of 1874 repealed those of 1855 and 1806, it is only because it was a valid Statute. If then such, it was certainly valid authority for the arrest, and shields defendant from all responsibility.

As the case was tried by a jury under a charge from his Honor, the Judge who granted the habeas corpus, and who instructed them that the Act was unconstitutional, the error committed by them in returning their verdict, is easily accounted for ; but the defendant is entitled to relief.

For these reasons:

It is ordered and decreed, that the verdict of the jury herein be sel aside, and the judgment thereon be annulled and reversed, and that judgment he now rendered in favor of the defendant, with costs in both Courts.

Levy, J., absent.


author: Poché, J.

text:
    No. 8484.
    State ex rel. Morgan’s Louisiana and Texas Railroad and Steamship Co. vs. Thos. A. Cage, Sheriff.
    The special drainage tax levied by tbo Police Jury of Terrebonne Parish is unconstitutional and void, because by a previous levy of a teu mill tax they had exhausted their power.
    Tho present Constitution does not impair any contract existing by virtue of Act No. 6 of 1878, between tbe State and Terrebonne Parish, for the power to levy the tax authorized by this Aot is not abrogated, but with legislative authority a tax can be levied to continue this work of public improvement.
    Act No. 33 of 1879 contains nothing inconsistent with the present Constitution, on the contrary, Art. 214 of tho Constitution gives it vitality, and by it tho taxing power for loveo purposes is conferred directly upon tbe Levee Commissioners.
    APPEAL from the Nineteenth Judicial District Court, Parish of Terrebonne. Goode, J.

      John B. Winder and Leovy <& Krnttsehnitt, for Relator, Appellant:
    1. The special parish tax leviod by tbe Police Jury of the Parish of Terrebonne, on the 11th day of July, 1881, is unconstitutional, null and void, beoause it conflicts with Articles 202, 203, 204 and 207 of the Constitution of this State.
    2. The District Levee Tax levied by the Board of Levee Commissioners of tho Fourth District, in or about the month of April, 1881, is unconstitutional, null and void, beoause it conflicts with Articles 202, 204, 209, 213 and 214 of the Constitution of this State.
    3. Article 214 confers the power to levy Levee Taxes on the Legislature, and not on Boards of Levee Commissioners.
    4. Even if said Article confers the power to tax upon Boards of Levee Commissioners, still the tax in question is unconstitutional, because said Article is contemplativo and looks to the future, and requires legislative action subsequent to its date to give it vitality, which legislative action has never been taken.

      OaThown & Oanabat, for Defendant and Appellee:
    The taxing power to be exercised by tbe General Assembly is limited to six mills, including all purposes whatever. Art. 209 of the Const.
    This limit does not include tho five mill levee tax provided for in Art. 214, Const., but the one mill tax of Art. 213, Const.
    Art. 204, Const., provides for what purposes taxes may bo levied by tbo General Assembly, among which we find, “ for levee purposes, as hereinafter provided.”
    The clause, lfor levee purposes, as hereinafter provided” must refer to one or both of the Articles 213 and 214. because these are tbo only subsequent provisions on tbe subject.
    The clause in question cannot refer to both Articles, because this would give the legislature authority to exhaust the limit of six mills for levee purposes alone, leaving nothing for the support of the other objects for which taxation is to be imposed, enumerated in Art. 204, Const.
    The clause in question cannot refer to Art. 214, Const., because this would allow tbe legislature to devote five-sixths of the limit of six mills for levee purposes, leaving only one mill for all the other purposes combined for which taxes may be levied by tbe General Assembly.
    Then, since it can neither refer to both, nor to Art. 214, it must have reforenoe te Art. 213, Const.
    The five mill levee tax of Art. 214 not being included in the limit mentioned in Art. 209, Const., it follows that that tax cannot be imposed by the General Assembly, but must be assessed by the Levee Commissioners.

      Act 33 of the Acts of the General Assembly of 1879, is not inconsistent with Art. 214, Const., but is strikingly the other way.
    The Act in question not being unconstitutional when enacted, and not in conflict with the present Constitution, is still in force; Art. 258,' Const.
    The levee system, as adopted by the Act of 1879, is recognized by the present Constitution. Surget vs Chase, Tax Collector, 33 A. 883.
    The objection to the drainage tax, because not uniform, or not imposed upon all the property taxpayers of the Parish, is not well taken. The special drainage tax of one per cent., levied by the Police Jury of Terrebonne Parish, under authority of Act No. 106, of the Acts of the General Assembly, passed in 1878, is not a tax in the strict legal sense of the word, althoughtermed a tax in the statute, but is a local assessment for local improvements, assessed on the property of those who are to reap the benefit. Cooley on Taxation, 438; Dillon on Municipal Corporations, 703; Cooley’s Coust. Lim. 512; 2 A. 230; 9 E. 333; 4 A- 2; 11 A. 220, 324; 14 A. 503; 20 A. 497; 26 A. 1.
    If the Act 106 of the Acts of 1878 be constitutional when enacted, and not in conflict with any of the provisions of the present Constitution, it is still in force and operates as alegislative authority to the Police Juries to levy the tax, aud there is no necessity for any further legislation. Art. 258, Const.
    Act 106 of the Acts of 1878 contains and is a contract between the State of Louisiana and the Police Juries of the Parishes of Lafourche and Terrebonne, entered into prior to the adoption of the present Constitution, the obligations resulting from which cannot be impaired by any subsequent legislation. Const. TJ. S., clause 2 of sec. 10 of Art. 1; Pletcher vs. Peck, 6 Cr. 87; Terrell vs. Taylor, 9 Cr. 43; 23 A. 623.
    A law will not be declared unconstitutional unless manifestly so. 8 A. 341; 20 A. 587 ; 21 A. 594, 694; Cooley’s Const. Lim p. 183
   The opinion of the Court was delivered by

Poché, J.

The issue presented in this case involves the constitutionality of a special drainage tax, levied under Act No. 106 of 1878, and of a levee tax assessed by the Board of Levee Commissioners of the Fourth Levee District.

1. Among other grounds urged against the drainage tax, Relator shows that for the year 1881, for which it was assessed, the Police Jury of Terrebonne Parish had already levied a general tax of ten mills on the dollar.

Defendant contends that Act No. 106 of 1878, is a contract between the State and the Parish of Terrebonne, and that such contract cannot be impaired by subsequent legislation, and that the power of taxation conferred thereby cannot be affected by Art. 209 of tbe Constitution.

We cannot assent to this proposition.

By Act No. 106, the State donated to the Parishes of Lafourche and Terrebonne, certain swamp lands lying between the two bayous of Lafourche and Terrebonne, on condition that the two parishes proceed within a specified time, to. drain and reclaim said lands, and complete said drainage works within ten years; for which purpose, said parishes were empowered to levy on certain portions of their respective territory, a special tax not to exceed one per cent, annually.

It is clear that such tax does come within the prohibition of Art. 209 of the Constitution, restricting the power of parochial taxation to ton mills on the dollar for all jmrjwsca. But the power to levy the tax, is not absolutely abrogated by the terms of the Constitution, under the provisions of which, tho Parish of Terrebonne, with proper legislative, authority, can raise tho tax necessary to continue this work of public improvement, oithcr under Art. 209 or Art. 242.

Hence, we hold that tho contract alleged by defendant is not impaired by the provisions of the presont Constitution.

We can see no force in tho argument of defendant, that this tax is, strictly speaking, not a tax, but a local assessment for local improvements. These are the very purposes for which, under the Constitution, tho taxpayers must be previously consulted through a vote taken according to law.

Undor these conclusions, wo shall omit any expression of opinion on the charge that such a tax is violative of Art. 203 of the Constitution, requiring taxation to be uniform and equal.

The District Judge did not err in holding this tax, as levied, to be un con stituti onal.

2. As to tho levee tax, Relator contends that the power to assess the same, having been delegated to the General Assembly, which is powerless to delegate the power to the Levee Board, the latter’s act, in levying said tax, was null and void.

The tax was raised hy the Levee Board under the authority of Act No. 33 of 1879, and of Art. 214 of the Constitution, which roads as follows:

“ The General Assembly may divide the State into levee districts, and provide for the appointment or election of Levee Commissioners in said districts, who shall, in the method and manner to be provided by law, have supervision of the erection, repairs and maintenance of the levees in said districts; to that effect it may levy a tax not to exceed five mills on the taxable property situated within the alluvial portions of said districts subject to overflow.”

The Act of 1879 divides the State into levee districts, provides for tlie appointment of Levee Commissioners, prescribes their duties and powers, consisting mainly in the supervision of levees, and empowers them to levy a special levee tax for their respective districts.

Now, unless it can bo demonstrated that the Levee Commissioners have been divested of tho taxing power by the Constitution, the Act contains nothing inconsistent with the present Constitution which contemplates the grant of precisely similar powers as the Act confers, and the law is therefore not repealed, but continues in full force. Article. 258.

In case the clause conferring the taxing power to the Commissioners be held as repealed, the other provisions of the Act are clearly unaffected by the Constitution.

The argument that the power to tax, granted by Art. 214, is conferred directly and exclusively to the General Assembly rests, first, on the assumption that under Article 202, the taking power is restricted to the General Assembly for State purposes, and under the legislature’s grant to parishes and municipal corporations; and in the second place, on a rigorous construction of Art. 214, in which it is contended that the word it; in the second clause of the Article, must and does refer to the subject, General Assembly,” in tire first part of the Article.

Construing Art. 202, with all other Articles on the subject of taxation, under the guidance of the wise rule that aU parts of an instrument must be construed together, with a view to give effect to every part, and to harmonize all the parts, we cannot adopt Relator’s conclusion.

The words, the taxing power may be exercised by the General Assembly for State purposes,” etc., does not convey the idea of an exclusive grant, and leaves room for a grant of taxing power to some other authority.

In Surget vs. Chase, 33 A. 840, we held that the taxing power of parishes or municipal corporations, must reach them only through the channel of the General Assembly, and was not granted directly by the Constitution, but we went no further; we did not and could not hold that the whole power of taxation of the State was concentrated in the legislature, to the exclusion of all other constitutional grants.

Now, it is conceded by Relator that the power to levy this levee tax is clearly granted by Art. 214, but he contends that the grant is made to the legislature, without the right or authority, express or implied, to delegate the power to the Levee Commissioners or to any other person or persons.

Wo cannot assent to the proposition.

It is evident to our minds, as shovm by a careful consideration of all the Articles of the Constitution touching'levees aud levee taxes, that Art. 214 was framed with a special reference to Act No. 33 of 1879, and with the undoubted intention of giving it Constitutional vitality, and to secure its efficacy to the people to be affected thereby, with the only restriction of its existence to such time as the Federal government should assume permanent control of the levees in this State.

The tax authorized under the Article is essentially confined to certain portions of the State, and is, therefore, not general throughout the State; but Art. 203 provides that taxation shall be equal and uniform throughout the “ territorial limits of the authority levying the tax,” and as the territorial limits of the General Assembly embraces the whole State, it is undeniable that, the General Assembly would be prohibited by this Article from levying a tax limited to the territory of one or two levee districts, but such a tax could be levied by the Levee Commissioners, and ■would be equal and uniform throughout, their territorial limits.

It is not a correct interpretation which destroys one article of an instrument by another.

Under Art. 213, the General Assembly is granted the exclusive taxing power which the Constitution intended to delegate to it, directly to the maintenance and repair of levees, and could, therefore, levy directly no other levee tax.

Again, a careful reading of xlrticle 214 shows that two distinct powers are granted by it in the -first clause; first, the power to the General Assembly to divide the State into levee districts and provide for the appointment or election of Levee Commissioners; and second, the power to such Levee Commissioners, to supervise the erection, repair and maintenance of the levees in their districts ; and in the last clause the taxing power is conferred in the following words : “ to that effect, it may levy a tax not to exceed five mills on the taxable property situated within the alluvial portions of said districts subject to overflow.”

Now to which of the two powers enumerated in the first portion of the Article do the words “ to that effect,” apply or refer. Evidently not to the power of the legislature to divide the State into levee districts, etc., but, on the contrary, they must refer to the power of the Levee Commissioners to build, repair and maintain levees;

Hence, we conclude, that while the pronoun it is inartistically used in the language granting the taxing power, the Convention undoubtedly intended to confer the taxing power under Art. 214, directly to the Levee Commissioners.

We, therefore, hold with the District Judge, that the special levee* tax herein resisted by Relator is constitutional and binding.

The judgment appealed from is, therefore, affirmed.