text:
    No. 6792.
    Charles E. Alter vs. Hornor & Benedict.
    'The agreement between tlie holder ot a mortgage note and an attorney-at-law, that the latter shall foreclose the mortgage, receive for his fee the commission stipulated in the act of . mortgage, and warrant his client that he will receive from the sale of the property the full amount of his debt, is a valid and binding contract of suretyship, with a sufficient , consideration. But the holder of the mortgage note, by subsequently talcing it back from . the hands of the attorney-at-law, aud receiving the price the property brought at a-sale ordered by the United States Bankrupt Court, cancels the obligation of the attorney-at-law under the said agreement.
    APPEAL from tbe Fifth District Court, parish of Orleans. Rogers, J.

      M. M. Cohen for Plaintiff and Appellant:
    Plaintiff claims that defendants are indebted to bim under a written contract oí guaranty. Defendants “aver that the same was made without any consideration whatever.”
    First — Plaintiff replies, that in all contracts a just cause or consideration is presumed until the contrary be proven. 1 Hennen, 496. No. 12, 2 Hennen, 1006. No. 75, 5 Marcadé, p. 2 to 6. 1 Larombiere, p. 275. No. 9.
    Second — He who contends that be is exonerated, must prove the fact which has produced the extinction of the obligation. Rev. C. C. 2232. Fairchild vs. McEnery et al., 31 An. 695.
    Third — The leaving of a demand in the hands of an attorney to collect and control is a legal and sufficient consideration for a contemporaneous guaranty of the claim by the attorney. Gregory, Tilton & Co. vs. Thomas Gleed, 33 Yermont, 405. Robinson vs. ThreadgiU, 13. Iredffl, (N. C.) 39.

      Bayne & Benshaw for Defendants and Appellees:
    Plaintiff having left a certain mortgage note for collection with an attorney at law, to be proceeded with in a particular manner, under a written contract, cannot hold such attorney responsible, after said attorney has failed to obtain the relief contemplated, and is prevented from proceeding in the manner designated in the contract.
    And the fact that plaintiff received back the note and act of mortgage, after the failure of defendants’ proceeding», and proceeded upon it himself in another manner, annulled the contract.
   The opinion of the Court was delivered by

Levy, J.

The plaintiff Alter brought suit against the defendants, Hornor & Benedict, to recover the sum of $1015 90, the alleged difference between the pro rata share which plaintiff received out of the proceeds of sale of certain property of Joseph Ellison and the total of principal and interest of his claim on the property sold; which difference he alleges defendants are liable and responsible to him on their guaranty that he should receive the amount of his claim in full out of the proceeds of sale of said property.

It is alleged that the guaranty aforesaid was given by the written document, dated'21st May, 1875, filed in the suit and annexed to the petition, which reads as follows:

“ Received of Charles E. Alter, Esq., mortgage note of J. Ellison for $4500, dated New Orleans, May 16th, 1871, @ 3 y. f. d. with interest at eight per cent from date, to be proceeded upon, in Fifth District Court, by foreclosure of mortgage; and we undertake that when the mortgage property shall be sold, the same shall bring sufficient to pay the entire claim of C. E. Alter, principal, interest and costs; and we agree that we shall charge no fees to Mr. Alter, and shall have none except such as are provided for in the act of mortgage, and shall be collected from the mortgaged property. And we further agree that Mr. Alter shall be at no costs for our proceedings if unsuccessful.
(Signed) Hobnob & Benedict.”

It appears by the evidence in record, that the property was sold, by order of the United States District Court, in bankruptcy, on' the 3d of June, 1876. The amount, principal and. interest, of Alter’s note, on that day, was $6315 00, and he realized as his pro rata $5299 10, the deficiency or difference being the amount claimed in plaintiff’s petition. The receipt and agreement of Hornor & Benedict bears some ambiguity. The note is said to be received “ to be proceeded upon in Fifth District Court by foreclosure of mortgage,” and they “ undertake that when' the mortgaged property shall be sold the same shall bring sufficient to pay the entire claim of Alter,” etc. It would hardly be a forced construction to confine this undertaking of defendants to the proceedings in the Fifth' District Court; but as this point is not raised by counsel, and, under our view of the case, is not necessary for its decision, we shall not further discuss or consider it. However, admitting that the guaranty is not thus limited, and that it was full and- binding on the defendants, the testimony completely satisfies us, that the plaintiff by his own acts relieved them from the obligation of the contract. The statements of plaintiff, in which he contends that when the note was returned to him, it was “ thrust upon him,” and that in taking the note back again into his possession, he did not voluntarily assent thereto, but insisted upon defendants retaining it, are contradicted and disproved by the testimony of Hornor and of Baker. As to the sufficiency of the consideration of the contract of May 21st, 1875, we think there was a sufficient consideration, and defendants were bound thereby. The attorney’s fees secured by the mortgage which were to enure to benefit of defendants formed a valid and binding consideration. Such being the case, was there a revocation of the contract or agreement and a cancellation or release of the guaranty -therein contained? Alter voluntarily received the note which he had confided to defendants; it is true, although they suggested that he should take it, it was not forced upon him by violence or threats; he chose to re-assume its possession, and after such resumption,controlled, managed, collected and entered into arrangements by which the terms and conditions of sale of the mortgaged property were made. His notification, to the defendants, shortly before the day of sale, that he should hold them responsible, under their contract, for any deficiency, seems to us to have been an afterthought, and unwarranted, owing to his own acts. The testimony of Mr. Alter, unsupported, is ouerbalanced by that of Mr. Hornor, corroborated by that of Mr. Baker. That of the two last named witnesses establishes that, plaintiff, without objection took back the note, while his subsequent acts evidence, the mutual consent of parties to the revocation of the contract and ex-tinguishment of the guaranty.

The judgment appealed from is affirmed with costs.


source: Caselaw Access Project

author: Poché J.

license: Public Domain

text:
    No. 7805.
    Vincent T. Cambre, Individually and as Administrator, vs. Felicité Grabert et al.
    The wife has no mortgage on the property of the husband to secure a donation propter nuptías made to her by himself. Re-affirming the Decision of Gates vs. Legendre, 10 Rob* 74.
    APPEAL from the Fifth Judicial District Court, parish of Iberville. Me Vea, J.

      Barrow & Pope for Plaintiff and Appellant.

      A. & 2S. B. Talbot for Defendants and Appellees.
   The opinion of the Court was delivered by

Poché J.

Plaintiff seeks by the hypothecary action to subject a piece of property, owned by defendants, to a legal mortgage claimed by him to secure the sum of three thousand dollars, with legal interest from January, 1861, growing out of a donation of said sum by Jean Theo. Cambre, his father, to bis deceased mother, Celestine L. Scivique, in consideration of his future marriage, evidenced by a marriage contract, in due form, under date of June 12th, 1851, the property having been owned by the husband from 1853 to 1866. By the contract it appears, and it is admitted, that the sum of money mentioned in the act was not then given to the donee, but it was provided that the same was to have been paid in the future, and that it was never received by the wife.

The defendants in answer urge:

First. That the donation made by Jean T. Cambre to Celestine L. Scivique propter nuptias, as evidenced by their marriage contract, never had any effect, because the donee died before the donor.

Second. That donations of present and future property, made by the husband to thewi'fe in the marriage contract, do not carry with them a mortgage against the property of the husband.

The judgment of the lower court was in favor of the defendants, and plaintiff appeals. His success depends exclusively on the existence of the legal mortgage which he claims as the result of the marriage contract, and of its inscription in the proper office in the parish of Iberville; and considering that as the pivotal question in the case, we shall proceed at first to its consideration.

Mortgages cannot be presumed, or extended by implication, but must be strictly construed, and confined to cases in which they should apply under the laws creating them.

The wife is allowed a legal mortgage on the property of the husband, for the restitution of her dotal effects or property, and for the reimbursement of her paraphernal funds, or of the proceeds of the sale of her paraphernal property; and to succeed in this case, plaintiff must show that his mother’s claim was either dotal or paraphernal property.

He claims that the donation, evidenced by the marriage contract entered into between his parents, formed his mother’s paraphernal funds, and his only reason in support of such conclusion is in the fact that It was not a dowry.

But this is no answer to the question as to whether it is necessarily either. Under the provisions of our Code we are led to the conclusion that it was neither, the husband having received no property or funds for account of his wife.

Plaintiff himself admits that under article 2338 of the Civil Code, stipulating that all donations to the wife on account of the marriage; except those of the hvsbancl, are part of the dowry, that the donation in this case could not be considered as forming part of his mother’s dowry.

Now, Art. 2383 of the Code provides that “ all property which is not declared to be brought in marriage by the wife, or to be given to her in consideration of the marriage, or to belong to her at the time of the marriage is paraphernal;” and this definition clearly excludes the donation in this case by Theo. Cambre, which was expressly made “ in consideration of Ms intended marriage with said Celestine Scivique.”

We are irresistibly borne out in this conclusion by the clear text of the Code, as interpreted by this Court in the case of Gates vs. Legendre, 10 R. 74.

In that case the Court ably reviewed all the reported decisions on that important question, and concluded that no legal or tacit mortgage results to the wife from a donation propter nuptias by her husband.

In the face of such a clear interpretation of the law, resting upon the authority of an unbroken line of decisions, this ’ question would doubtless have been considered as finally settled in our jurisprudence, . and the present case would, in all probability, have never come to light were it not for the declaration to be found in the decision of the case of Newman & Co. vs. Eaton and Wife, in 27 An. 341.

In that case the Court intimated that a donation to the wife by the husband, in consideration of the future marriage, formed a part of the wife’s paraphernal property, and, as such, is secured by legal mortgage on the husband’s property. But we cannot assent to the reasons which are advanced in support of such theory. After quoting Art. 2338 of the Civil Code, which stipulates that such a donation cannot form part of the wife’s dowry, the Court concludes in these words: “Therefore, the property which is declared to be given to her in consideration of the marriage by the husband, is paraphernal.”

This declaratiqn is in direct conflict with the unambiguous language of Art. 2388 of the Code, in the formal provision, “ that property given to her in consideration of the marriage ” is not paraphernal.

And we are compelled to abide by the clear language of the text, and to consider that the proper interpretation is to be found in the case of 10 R. 14, and authorities therein quoted.

Our conclusion is, therefore, that the donation in the marriage contract between Theo. Cambre and his future wife, Celestine L. Seivique, created no mortgage in her favor on her husband’s property, and that defendant’s land, purchased at the sale of Cambre’s property, could not be, and was never affected with any mortgage, as claimed by plaintiff.

This view of the case obviates the necessity of considering the other ground of defense raised in the pleadings.

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


author: Todd, J.

text:
    No. 7944.
    The Town of Donaldsonville vs. The Police Jury of Ascension.
    An Appeal does not lie from a preliminary Injunction pendente lite.
    APPEAL from the Twenty-Second Judicial District Court, parish of . Ascension. Cheevers, J.

      B. N. Sims for Plaintiff and Appellee:
    First — A suspensive appeal will not lie from an original order granting a writ of injunction. 29 An. 869; 3 Hob. 437.
    Second — The State of Louisiana is not a party to this suit, lias not intervened therein, and is without interest. Tbe State had no right to appeal. 2 An. 986; 4 H. S. 342 ¡IES. 309,

      F. B. Earhart, District Attorney, for Defendant and Appellant:
    Where the District Attorney is enjoined from prosecuting violators of the Sunday-law ordinance of a parish (having the force and effect of a criminal statute, adopted by police juries under Act Ho. 84, Session Acts 1878), and where such decrees, mandates or orders cause an irreparable injury and dead-lock, will justify this Court, in order to disentangle ■ it, to entertain an appeal of the State, and its officers, suspending the operations of such decrees. 30 An. 308; O. P.556; 14 An. 59; 10 An. 752 ; 31 An. 663; 31 An. 545;'32 An. 891; State vs. Tyron, 39 Conn. 183; 4 An. 11.
    In order to test the illegality or constitutionality of Sunday-law ordinances, adopted by police juries, under Act. 84,1878, the remedy is not by injunction. 31 An. 545; 31 An. 663; 32 An. 891; 4 An. 11; State vs. Tyron, 39 Conn. 581.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Todd, J.

The Police Jury of the parish of Ascension having passed an ordinance requiring stores, shops, groceries and other places of business, to be closed on Sunday, the town oí Donaldsonville, situated in said parish, obtained an injunction from the District Court of said parish restraining the Police Jury and the District Attorney, as the legal adviser of said body, from enforcing the said ordinance within the corporate limits of said town.

From the order granting the injunction the District Attorney applied for and obtained a suspensive appeal in the name of the State.

There is a motion made to dismiss this appeal on the ground, substantially, that no appeal would lie from such an order, it being a mere preliminary order of injunction rendered in a pending suit, interlocutory in its character, and one which could not cause irreparable injury.

As we are not called on to say whether an appeal in such a case could be taken by the State, or whether or not the State was in any manner a party to the proceeding instituted in the lower court, or had any appealable interest in the subject matter thereof, it is sufficient to say that it is clear under the express rulings of this Court, and the settled jurisprudence on this point, that an appeal from a mere preliminary injunction will not lie; and we.fail to discover any thing in the character of this case, after attentively considering the arguments so earnestly urged in the brief of the District Attorney, to take it out of the established rule. 29 An. 869; 3 R. 437.

The appeal is, therefore, dismissed at the appellant’s costs.


author: Fenner, J.

text:
    No. 8140.
    Edward J. Gay vs. Thos. H. Ellis.
    Defendant in an action for slander of title, l)y setting np title in Mmself, changes the suit into a petitory action, in which he becomes plaintiff, and he must succeed or fail on strength of his own title, and not on the weakness of his adversary’s.
    Certificates of purchase irom the Land-Office, made in accordance with law, operate an equitable severance of the land from the public domain and constitute sufficient evidence of title, when accompanied with possession, to form the basis of the prescription of ten years, against the holder of a patent issued subsequently to the acquisition of said prescription.
    APPEAL from the Twentieth Judicial District Court, parish of Lafourche. Knoblock, J.

      Barrow & Pope for Plaintiff and Appellee:
    First — Ellis, by answering to Gay’s suit for slander of title, by setting up title to Secs. 92, 340, and 150 of T. 15, S. R. 16 E, changed the suit into a petitory action, in which he became plaintiff, and he must succeed or fail on the strength of his own title. 27 An. 307 j Bidwell vs. Caveroc, 18 La. 103 j 5 R 22 j 24 An. 511.
    Second — Gay holds by prescription of ten and twenty years, having a just title therefor, and possession for over twenty years, the greater part, if not the whole, being under cultivation,

      (a) Prescription began to run on 2d October, when the certificate of entry was issued to Laforest, because Laforest could have maintained a petitory action for same. Worth, vs. Bronson, 98 XT. S. 121; Frisbee vs. Whitney, 9 Wal. 187; Lytle vs. Arkansas, 9 How. 314; Hennen's Digest, vol. 1, p. 1269, Ho. 1, and cases cited ; Laidlandvs. Landry, 12 An. 151.
    (b) Actual possession of part of a tract of land, with a title to the whole, is possession of the whole, and corporeal possession of this is not necessary to continue same, but civil answers. 9 M. 43 ; 9 M. 174; 1 B. 159: 13 La. 286; C. C. (3404-5-6-53); 15 La. 566; 16 La. 10; 19 La. 251.
    Third — Ellis acquired nothing from Laforest, the sale or transfer being on the condition that he had not previously sold, and there being no consideration.
    Fourth — The patent issued to Townsend Ellis, under which Thcmas H. Ellis claims, enures to the benefit of Gay. 4 An. 268, McGill vs. McGill; 4 B. 79; 14 An. 123; 22 How. 202; 16 An. 301; 3 How. 46; 21 How. 240.

      E. A. O’Sullivan for Defendant- and Appellant;
    The act of sale 28th March, 1856, did not convey title to sections 92 and 153.
    When land certificate is transferred, the transfer should be recorded, to affect third persons.
    A marshal selling property described in one act of sale, does not sell property belonging to same person described under another and subsequent act.
    Marshal’s deed without adducing in evidence the judgment to support the deed, is no evidence of title. 6 H. S. 462, 347; 3 L. 212; 4. L, 12; 22 An. 629.
   The opinion of the Court was delivered by

Fenner, J.

The plaintiff, alleging himself to be the owner of a certain sugar plantation, situated in the parish of Lafourche, and described in his petition, brought this suit against the defendant, charging slander of his title to a portion of the lands embraced in the plantation, and claimed the relief usual to such actions. The defendant answered and reconvened, setting up title in himself to certain lots, sufficiently described, for the purposes of this suit-, as lots Nos. 92,140, and 150; averring that Gay pretends to hold title to said lots and slanders the title of defendant, and holds and uses and prevents defendant from holding and using the said lots; and he prays to be quieted in his title to said lots and to be put in possession thereof, and for rents and damages.

It will be observed that defendant’s claim is confined to lots Nos. 92,140 and 150, and does not embrace No. 153; nor is the claim enlarged by annexing his title, which does embrace No. 153, since he may well confine his controversy to some of several tracts conveyed in the same title. Gay disclaims title to lots 140 and 150; and, therefore, nothing is involved except the title to lot No. 92.

Gay answers the reconventional demand, denying its allegations, reiterating those of his own petition, and pleading the prescription of ten and twenty years.

By his answer to the petition for slander of title, setting up title in himself, defendant changed the suit to a petitory action, in which he became the plaintiff, and he must succeed or fail on the strength of his own title and not on the weakness of his adversary’s.

18 La. 103; 5 R. 21; 21 An. 511; 27 An. 307.

Gay’s title is traced back, through his authors, to a sale from Geo. -W. Lee to Nelson & Donelson, passed on March 28th, 1856. By that act Lee sold to Nelson & Donelson “a certain sugar plantation, together with all the buildings and improvements thereon, known as the Acadia plantation, composed of " four specifically described tracts, and containing about two thousand acres. In the sale it was stipulated that “ whereas, said vendor is not at the moment prepared to show title to the tract known as the Gibson place, said to contain' 610 acres,” certain arrangements were made to secure the perfecting of title, or in case of failure, to secure the vendees against loss.

Shortly thereafter, the purchasers, Nelson & Donelson, had a survey made of the place, the map of which is in the record, and it was then discovered that lots 92 and 153, though forming part of the sugar plantation, were still government land. On ’October 2d, 1856, one La-forest entered these sections with others, and obtained from the government the usual certificate of purchase, numbered 886.

On 21st of January, 1857, Laforest sold these sections to Geo. W. Lee, which act, however, was not recorded until August 16,1877.

On 29th January, 1857, Lee conveyed these sections to Nelson & Donelson, and in the act it is declared that the said sections “ form part of a plantation known as Acadia, which was purchased by Nelson & Donelson on March 28,1856, and were supposed to pass by the sale aforesaid, but, on subsequent survey, were discovered to be vacant lands,” &c. This act was duly recorded on the -same day, January 29th, 1857.

From this it appears that Lee had sold to Nelson & Donelson the plantation of which these two lots actually formed a part. The title conveyed, so far as these two lots were concerned, was discovered to be deficient. Thereupon Lee acquired title to the lots in question and, in perfection of his original sale, conveyed it to his vendees. The effect of this was to make the original sale, by which he sold to them the whole plantation, a perfect title as to the whole.

The immediate title to the plaintiff Gay describes the property as it was described in the first sale from Lee to Nelson & Donelson of March 28,1856,- and refers to that act alone as the origin of titles. That act, however, was, on its face, translative of title to the whole Acadia plantation, and notwithstanding the defect of title existing at the time as to lots 92 and 153, it became a valid translation of title to those lots also by the retroactive effect of the subsequent proceedings above referred to.

To determine whether Gay and his authors held section 92 by title translative of property, it is only necessary to determine whether section 92 formed part of the Acadia sugar plantation; for whatever defects may exist in the subordinate descriptions of the tracts composing it, the plantation, as a whole, was undoubtedly conveyed. The evidence leaves no doubt that section 92 was situated in the very heart of the plantation, in near neighborhood to the sugar-house, running directly across the place, near the centre, and that nearly all, if not all, was cleared, enclosed and in cultivation at the date of the sale from Lee to Nelson & Donaldson, and to the present day. This appears from the maps offered in evidence, taken in connexion with the testimony of witnesses.

The possession by Gay and his authors from the date of Lee’s sale to Nelson & Donelson is established, and is not controverted by any evidence suggesting even a doubt on the subject.

All the elements of the prescription pleaded by Gay are fully shown, and his plea must be sustained.

The defendant Ellis, having obtained from Laf orest a transfer of the certificate No. 886, in 1877, presented it at the land office and obtained a patent for the land. • He contends that the title remained in the State until the issuance of the patent, and that Gay and his authors could not prescribe against the State. Certificates of purchase from the proper Government officers, made in accordance with law and fairly obtained, operate as equitable severance of the lands from the public domain, and pass the lands so held into the domain of private property, making them the subjects of private contract, and are sufficient evidence of title to support a p'etitory action, and consequently to support prescriptive rights based thereon.

See authorities cited in Hennen’s Digest, Public Lands III, (b), 3); 98 U. S. 121; 6 Wall. 187; 9 How. 314.

The patent cannot avail against prescription founded on possession under equitable title derived from the Government itself, and operating divestiture of the title of the Government, anterior to the date of the patent, and more than ten years prior to the institution of the suit.

Laidlaw vs. Landry, 12 An. 151.

LeBlanc vs. Lubrique, 14 An. 772.

Laforest vs. Downing, 16 An. 302.

Eor these reasons we think the plaintiff’s plea of prescription should be sustained.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed’at appellant’s costs.


text:
    No. 8104.
    State of Louisiana vs. John P. Exnicios.
    A Statute is not unconstitutional as a whole, under the Constitution of 1868, because all its objects are not expressed in its title. Those parts of the law, which are indicated by the title, must stand, while only those not so indicated will fall, unless they* are so interwoven with, and dependent upon, each other, that they cannot be separated.
    Act No. 42 of 1’871, providing for the punishment of “any.officer or other person, charged with the collection, receipt, safe-keeping, etc., of public money, who shall convert it to his own use, etc.,” clearly covers the case of a clerk of the Administrator of Finance of the City of New-Orleans, guilty of such an act.
    APPEAL from the Criminal District Court, parish of Orleans. Luzenberg, J.

      Wm. L. Thompson for Defendant and Appellant:
    First — Act No 42 of the State of Louisiana, passed in the year 1871, under which this prosecution is based, is unconstitutional, because it does not express its objects in its title.
    Second — That if said act be declared constitutional, it is not applicable to accused, hence, any conviction under said act is null and void.

      J. C. Egan, Attorney General, for the State, Appellee:
    First — The constitutional provision directing and requiring that the object or objects of the statute shall be expressed in the title, does not require that all the details and provisions of the statute should be expressed or referred to in the title. 28 An. 38. *
   The opinion of the Court was delivered by

Fenner, J.

The only errors assigned in this case appear from a motion in arrest of judgment; made in behalf of defendant, on the following grounds, viz:

First. That act No. 42 of 1871 is unconstitutional because said act does not contain in its title the object of said act, nor does its title mention or attach any responsibility to clerks whose duties are ministerial.

Second. That defendant was not an officer known to the law, and charged by law with the collection of taxes.

> Third. That defendant was only a clerk employed by the Administrator of Finance of the City of New Orleans, and that Act 42 applies only to offiers charged by law with the collection of taxes, and not their clerks or subordinate agents.

Fourth. That the Administrator of Finance was the sole lawful agent of the city to collect and receive its revenues, and could not delegate its power to others, and thus cause responsibility under the law to attach to them.

Act No. 42 of 1871 was passed under the regime of the Constitution of 1868, which, while requiring that every law shall express its object or objects in its title,” contains no inhibition against the inclusion of several Objects in the same law, provided they be expressed in the title.

The title of this act, under the broadest division, contains at least twelve distinctly expressed and different objects. The act itself contains no less than one hundred and three sections, which have reference, some to one, some to another, of the objects expressed in the title.

It is settled, beyond dispute, that in the application of this constitutional provision, those parts of the law which are indicated by the title must stand, while only those, not so indicated, will fall, unless they are so interwoven with, and dependent upon, each other, that they cannot be separated.

Cooley Const. Lim. áth ed. p. 181.

It may well be doubted whether a pleading, based on the broad charge that such an act as this, containing a multiplicity of objects in its title and of provisions in its body, is unconstitutional, without specification of any particular provision intended to be assailed, could form a proper basis for any judicial inquiry or determination.

It is manifest, at a glance, that the allegation is not true as pleaded, because the act is not unconstitutional, though some particular provision thereof may be.

Waiving this objection, however, in this case, we find from the brief of counsel that his objections to the constitutionality of the act, as well as we can understand them, are directed against section 90 of the act, and are twofold, viz:

First. That the object expressed in the title, viz: “ To punish certain crimes and misdemeanors,” does not express the persons or class of persons who are to be punished therefor, and is, therefore, insufficient to cover the designation of such offenders in the body of the act.

The objection can hardly be seriously considered. It is obvious that “ crimes and misdemeanors ” can only be committed by persons, and that persons only can be punished for the commission thereof. Certain persons, or persons occupying certain relations, can alone commit certain crimes. Only persons entrusted with the money of another can commit the crime of embezzlement.

The crime defined in section 90 of the act under consideration is the embezzlement of public funds, and it can only be committed by “ officers or other persons ” charged in some manner with the collection or custody of such funds. In defining and punishing the crime, it was necessary to designate how and by whom the crime might be committed, and such designation is aptly covered by the title.

Second. It is objected that in a certain part of the section provision is made as to what facts shall constitute “prima, facie evidence” of the crime; and that such provision is not covered by the title.

There is no occasion to pass upon this constitutional question in the present case. Even if this provision as to evidence were held to be unconstitutional, it would not affect the validity of the remaining portions of the section. Nothing in the record informs us that this rule of evidence was applied in the instant case. Had it appeared that the judge had charged the jury that the facts stated in the act constituted prima facie evidence of guilt, and had a bill of exception been properly taken to such charge, we might have examined this question; but no foundation for its examination is laid here.

So much for the objections to the constitutionality of the law.

The other grounds for arrest of judgment a're comprised in the proposition that, not being a statutory officer, but acting only as a clerk employed by such an officer, he is not covered by the provisions of the act. The act provides that "if any officer or other person, charged with the collection, receipt, safe keeping, etc., of public money, or any part thereof, shall to fail pay over the same according to law, or shall convert to his own use, etc.”

It is impossible to explain the use of the words “ or other person,” not once only, but several times, upon -the theory that the act was intended to apply to " officers ” only.

The law-maker unquestionably had in view the self-evident fact that officers charged with the collection of taxes could not perform their functions without necessarily delegating some of their duties to subordinate agents; and it was the intention to prevent, and punish, the embezzlement of public funds by such employees as well as by the officers themselves.

The case of defendant is covered by the letter and clear meaning of the law.

The judgment appealed from is, therefore, affirmed.

Rehearing refused.


author: Bermudez, C. J.

text:
    No. 8239.
    State of Louisiana ex rel. O. Valeton vs. E. K. Skinner, Judge First City Court.
    This Court will not use its supervisory power, under Article 90 of the Constitution, by th« writ of Oertiorari, to investigate whether or not, an inferior Court, in an u n appealable case has decided correctly, when it has acted within the limits of its ■jurisdiction and in proceedings apparently legal.
    APPLICATION for Writ of Certiorari.

      Chs. Longue for the Relator.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a Certiorari in an unappealable case.

The petitioner charges, that on a rule taken against him, as garnishee, under execution issued against a defendant, he was condemned to pay to the constable of the First City Court a sum of money in his hands, the proceeds of a sale made by him, as auctioneer, under the direction of the defendant in the case, for account of another person not a party to the rule, and not bound by the judgment upon it.

He avers the illegality of the proceedings, the inapplicability of the case, irreparable injury, etc., and asks us to avoid the judgment against him, and to direct the defendant judge to try the case, in conformity with the provisions of the law.

Practically, this Court is called upon to review the action of the litigant, to look beyond the judgment, to test its correctness, to reverse it, and to require that court to try the case anew This interference on pur part is asked in the exercise of the supervisory powers conferred upon this Court by article 90 of the Constitution.

The object of the writ of Certiorari is to ascertain the validity of proceedings before an inferior court in unappealable cases.

The writ should never issue, unless upon a showing that the proceedings are absolutely void and have not been sanctioned by the party complaining of them. C. P. 855, 857, 864.

The proceedings may be null where the inferior judge has refused to hear the party or his witnesses, or has pronounced sentence without having cited him to appear. C. P. 857.

It is not pretended, neither does it appear, that the First City Court had no jurisdiction over the main action, or was incompetent to entertain against petitioner, in the form which it did, the summary proceeding ancillary .to the execution of the writ under the money judgment; nor that the petitioner was not heard before judgment. Had the city judge exceeded the bounds of his jurisdiction, a Certiorari would not have been the remedy to arrest further proceedings.

The city judge had jurisdiction over the whole subject matter, and was vested with a legal discretion to determine the merits of the rule against the petitioner, garnishee in the suit. C. P. 1152, 246, 642; State ex rel. Fredricks vs. Judge, lately decided. Whether he has exercised that discretion correctly or incorrectly is a question which we have no power to determine. In such a case as is presented, an error of judgment on the part of the judge, either as to, the facts or the law, cannot be inquired into and corrected by this Court, whose investigation is restricted to the regularity and validity of the proceedings as they appear on the face of the papers. Passing upon the merits, which were determined by the city judge, would be to usurp an appellate jurisdiction in unappealable cases, which was not conferred upon this Court. Const. Art. 81; C. P. 857; 14 Ill. 381; 22 Ill. 333; 27 Ill. 140; 9 Ark. 73; 22 Ill. 105; 14 Iowa, 211; 19 Me. 46; 8 Gill (Md.) 150; 29 Cal. 459; 29 Barb. N. Y. 622; 45 Wis. 353; 60 Pa. 107; 112 Mass. 206, vol. 3, U. S. Dig. p. 260, N. 254, 255, 256.

We have already held, in several cases, that in applications of this description we are not permitted to go behind the proceedings attacked so as to pass upon the intrinsic correctness of the action complained of, but are confined to an inquiry into the extrinsic validity of the proceedings, clearly announcing that we would not countenance such applications with a view to revise the correctness, in point of substance, of the action of subordinate courts in unappealable cases. In such circumstances we have studiously declined all interference.. State ex rel. Wintz vs. Judge Criminal District Court, lately decided. O. B. 34, fo. 1; State ex rel. Zubérbier vs. Judge, No. 8128. See, also, O. B. 53, fo. 44, 127, 206, 279, 534; 32 An. 549, 553.

Eor the decision of the matter presented, it is immaterial whether the petitioner may or not sustain irreparable injury. If the city judge have erred, and his decision be final, and work a hardship, it is an evil which we are powerless to remedy. It does not, however, at all follow, from the statement to that effect in the petition, that the complainant is exposed to any loss. He does not allege that he has seasonably asked the city judge to notify and hear the third party before passing on the rule against him as garnishee. It may well be that had.he done so'the judge, moved by a sense of justice or propriety, would have permitted that party to be apprised of the proceeding. Even then it lies in the power of the petitioner, before complying with the judgment against him, to notify, even informally, that party of the existence of such judgment. Upon such notice, it will be the interest of such party, for whose account the petitioner claims to have made the sale, the proceeds of which are in his hands, to protect himself from the effect of the judgment complained of, by proper proceedings to prevent its execution by the petitioner, or application of the money by the constabie. Under the circumstances of the case, the petitioner cannot be expected to do more.

The proceedings assailed were carried on, apparently, in proper form, before a competent court, and the writ does not lie.

It is, therefore, ordered that the application be refused with costs.


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    No. 7956.
    Succession of François Edmond Dupuy. Opposition of City of New Orleans to Account and Tableau of Executors.
    The validity of the assessment of taxes for the year 1880 and the levy of the same ih December, 1879, by the City of New Orleans, by virtue of the laws then in force, was not affected by the Constitution of 1879 or subsequent statutes. Decision in New Orleans vs. Yergnole, 33 An., 35 affirmed.
    The summary mode of collection provided for by said Constitution and Act Ho. 77 of 1880, does not apply to the taxes levied by the City of New Orleans in December, 1879,
    When property of a succession, upon which the said City has a privilege for the payment of her taxes, has been sold by order of the Court of Probates, that privilege is transferred to the proceeds and the City has the right to be paid out of the same, and, therefore, to oppose the Account of the Executor.
    The condition affixed to the sale by the order of Court, that the purchaser shall assume certain taxes, cannot bind the City who is no party to the proceedings or agreement, and compel her to sue the purchasers for the payment of such taxes.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      Frank K Butler and Sam’l P. Blanc for the City of New Orleans, Opponent and Appellee:
    I. the taxpayer; and that obligation maybe enforced in any ordinary legal proceeding, notwithstanding the law has provided a summary method for a collection of the tax.
    II.
    Act 77 of the year 1880.
    (a) Unconstitutional: Because,
    1. The object of the law is not disclosed in its title.

      % The act embraces more than one object.
    3. It is retroactive in its operation.
    4. It divests vested rights.
    <b.) Inapplicable to Municipal totees.

    in.
    Provision in Act 77, relative to a Tax-Collector’s sale.
    1. It depends entirely upon the statute in which it is found; and that statute being void for unconstitutionality, the provision falls to the ground.

      % It is cumulative, not restrictive.
    IY.
    ■ The city has not lost the right to proceed against the succession of Dupuy, nor against the proceeds of the assessed property embraced by the tableau of distribution.
    Y.
    The judgment appealed from is not directed against the “general funds ” of the estate, but against the specific fund arising from a sale of the property assessed; and if it was otherwise, the matter is not of sufficient importance to engage the attention of the Supreme Court; and
    YI.
    Amendment of judgment by allowing interest at the rate of ten percent per annum from March 31,1880, upon the amount of the tax bills.

      O. JS. Schmidi, for the Succession, Appellant:
    [First — Even if Act 77 of the Session of 1880 were inapplicable to this case, the city has no right to any judgment against the general funds in the hands of the executors of this estate. It could only claim such a judgment as would be enforceable against the specific property chargeable with the tax; unless the sale of said property had been effected under the order of the Probate Court for the purpose of paying the charges upon the property, among other debts.
    ¡Second — The order of court in the present case directed that the property should be sold subject to the tax lien, the payment of which was assumed by the purchaser. The sale did not, in any manner, affect the city’s lien upon, or right to proceed against, the property.
    Third — But the Act bTo. 77 of 1880 directed an assessment to be made in the year 1880 for the levy of taxes in the course of that year, and provided for the mode of collecting the same, the whole in conformity with the requirements of the Constitution of 1879. That assessment was not completed at the time of the trial of this case in the District Court. (B. pp. 47 and 48). Both under the provisions of the said Act bTo. 77 and those of the Constitution, the taxes that were to become due the city for the year 1880, had not been ascertained at the date of the sale of the property of the estate in April last, or of the trial of. t^his casein ¿Tune; and no judgment could, therefore, validly have been rendered therefor in favor of the city.
    [Fourth — Under the provisions of the Act bTo. 77 of 1880, and of the Constitution of 1879, no suit is authorized for the payment of either State or municipal taxes due on real property, but the collector can only enforce the payment of such taxes by sale at the expiration of the year in which they are due. '
    The city had, therefore, clearly no right to oppose the executor’s tableau.
   The opinion of the Court was delivered by

Todd, J.

On the 10th of April, 1880, the property of this succes«ion was sold to effect a partition between the heirs of the deceased.

On the 31st of May, thereafter, the testamentary executors of the estate filed an account of their administration and a tableau of distribution.

This account and tableau was opposed by the Oity of New Orleans, •on the ground that the city was not recognized therein as a creditor for the amount of taxes with which the property was affected, the proceeds of which were sought to be distributed.

There was judgment in favor of the city, sustaining the opposition, •and ordering the taxes claimed, to the amount of $1953 95, to be paid by the executors, from which judgment the executors have appealed.

The city has moved for an amendment of the judgment, and asked for the allowance of ten per cent interest on the amount of the taxes from the 31st of March, 1880.

The claim of the city is opposed, substantially, on the following .■grounds:

1st. That the taxes levied by the corporate authorities of the Oity of New Orleans in 1879, for 1880, had been superseded by the assessments made, or to be made, under Act 77 of 1880.

2d. That the tax claimed can only be realized or collected through' a sale by the tax-collector of the property assessed.

3d. That the city must pursue the property in the hands of the purchasers at succession sale; that the terms of the order of sale-directed that the property be sold, subject to the taxes, which were to be assumed by the purchasers.

First. The municipal taxes of the City of New Orleans, for the-year 1880, were levied and imposed in the month of December, 1879, in strict accordance with the laws on that subject previously enacted.. Under this levy and assessment, a legal obligation had been imposed on the taxpayers of the city for the payment of their respective taxes before the Constitution of 1879 went into effect, which was on the first ■ of January, 1880.

In the case of the City of New Orleans vs. Julien Vergnole, recently decided by this Court, and not reported, we had occasion to consider whether the licenses imposed under the authority of the same laws, and at the same time that the municipal taxes were levied, were abrogated,, or in any manner affected by the articles of the Constitution or subsequent statutes containing provisions inconsistent with the laws and ordinances under which such licenses were imposed; and we held that they were not abrogated or affected by such subsequent provisions.. Our reasoning in that case, and the authorities cited in support of the same, are applicable in this case, where the validity of the taxes imposed under the same authority, and at the same time, is attacked. And for the reasons assigned in that case, supported by the authorities cited, we are of opinion that the assessment of the taxes, the payment of which is resisted in the case at bar, was legal and valid, and the city had the legal right to enforce the collection of the same.

Second. We do not consider the provisions of Act 77 of 1880, or the article of the Constitution relating to the collection of taxes, as applicable to the municipal taxes levied and imposed by the' corporate authorities of the City of New Orleans in December, 1879. Even were it otherwise, it is clear that the summary mode provided by said constitutional and statutory provisions did not necessarily exclude every other mode for the collection of the taxes.

In this instance, the property sold was burdened with a privilege in favor of the city for the taxes in question. When the sale took place-this privilege attached to the proceeds, and was the first privilege thereon, and the city had a right to claim the taxes out of these proceeds, and enforced her privilege therefor by such direct proceeding as-was instituted in this case. The city was not compelled to take proceedings to sell the property to pay the taxes, when the same property had already been sold in a judicial proceeding, and the proceeds of that property, subject to the privilege for taxes, was in the hands of the exe-cutors ready for distribution. The city had the right to make direct • claim to the sum due, as she did do in the proceeding complained of. Dillon on Corporations, Secs. 653, 655; 13 An. 497; 1 G. M. and I. (Md.) 499; 14 Illinois, 83; 2 Serg. (Tenn.) 167.

Third. It is urged by the counsel for the succession that the condition of the sale of the property, as expressed in the order of sale, was “that the taxes due and exigible in the year 1880, are to be • assumed and paid by the purchasers, oVer and above the price of adjudication. And that by reason of such condition the city was precluded from any claim for taxes on the proceeds of this sale, but must pursue • the purchasers of the property. It is a sufficient reply to this to say ■ that the rights of the city to enforce her privilege for the taxes could not be in any way affected by the terms or conditions of an order to which she was no party. No privilege creditor of the succession, not a party to the proceeding, could be thus compelled to abandon or waive his claim on the proceeds of the property, subject to his privilege, and -we can see no reason why the city, for her privilege debt and the first privilege bearing on the property, should be subject to a different rule.

The evidence in the record shows that the taxes imposed and due, • the payment of which was demanded in this proceeding, were assessed •upon the identical property sold, and were properly ordered to be paid ■ out of the proceeds of the sale of this property.

The amendment prayed for, allowing interest on the taxes, “ should 'be granted, as such interest is expressly authorized by law.”

It is, therefore, ordered, adjudged and decreed that the judgment -appealed from be amended by allowing ten per cent interest per annum on $1953 95 from the 31st March, 1880, and as thus amended, it be affirmed, the succession of Erangois Edmond Dupuy to pay costs of both -courts.


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    No. 8197.
    State of Louisiana vs. David Wilson.
    It is left to the sound discretion of the District <fudge to determine what time should he allowed Counsel appointed hy him to defend the accused, for the purpose of preparing his defense; and also to grant or refuse an application for a continuance on that soore, made on the day of trial.
    APPEAL from the Ninth Judicial District Court, parish of Concordia. Houah, J.

      G. F. Bowles for Defendant and Appellant.

      Hiram B. Steele, District Attorney, and J. G. Egan, Attorney General,. for the State, Appellee:
    First — The Supreme Court cannot revise arefusal to grant a continuance. A decision thereon-involves a question of fact. State vs. Wilson, 23 An. 559.
    Second — Tlie time allowed counsel appointed by tbe court to defend the accused to prepare-his defense is regulated by the judge a quo. State vs. Ferris, 16 An. 425.
    Third — Continuances are left very much to the discretion of the presiding judge, and his refusal will not be revised on appeal, when it appears that no special reason is disclosed for-delay. State vs. Yigoreux, 13 An. 309.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant was indicted and tried for the crime-of rape, upon a female child, under nine years of age, and on a verdict, of guilty without capital punishment, was sentenced to imprisonment, at. hard labor, in the State Penitentiary, for the term of his natural life.

On appeal to this Oourt, he complains that the District Judge-illegally refused to grant him a continuance, prayed for on the day of trial, and to allow him a new trial, on the ground that the counsel appointed by the Court had not sufficient time to prepare his defense.

He was arraigned on the 7th of October, 1880. It does not appear-that he asked for the appointment of counsel. 25 A. 382. Yet an. attorney was appointed on the 14th to defend him, and the case was fixed for trial for the 16th following. On that day, a motion was filed for a* continuance on the ground stated, supported by affidavit, but it was-overruled. It stated no special cause for the delay. The attorney does-not appear to have been shocked at the ruling. He did not resign his-trust, 16 A. 425, but proceeded with the trial of the case, giving the accused his able and generous assistance. After a verdict of guilty, a. motion was made for a new trial, but no attempt appears to have been made to show that by the refusal of the judge to continue the cause,, the-prisoner had sustained any injury, and that the judge should have granted the postponement of the case. The motion charged, besides, that the verdict was contrary to law and evidence.

It is left to the sound discretion of a District Judge, in such cases,, to determine what time should be allowed counsel appointed by him to represent the accused, in order to prepare his defense. 16 A. 425. And,, also, to pass upon applications for a continuance on the day of trial, 23-A. 559, as well as upon motions for a new trial. Unless it be shown that some special and sufficient reason was assigned and made good,, in support of an application for a continuance, and that the District Judge acted arbitrarily and was guilty of a denial of justice, his rulings,, in two instances, the one affirming the other, at different stages, particularly when the last was made on a motion after verdict, will not be-revised on appeal. 13 A. 309; 21 A. 290; 26 A. 422; 28 A. 46; 29 A. 595; 31 A. 179, 408.

We cannot, for a moment, suppose, that, had it been shown when the motion for a new trial was heard, that the continuance, which was asked and refused on the day of trial, should have been allowed; or, that the finding of the jury was contrary to law and evidence, and for either cause, that the accused did not have a fair and legal trial; the judge a quo would not, even on his own motion, have set aside.the verdict and granted the prisoner a new trial. We must, and do believe, that in acting as he has done, he has discharged his duties conscientiously and legally, and has done no injustice to defendant.

Judgment affirmed.


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    No. 8158.
    State of Louisiana ex rel. J. T. Ford vs. Ernest Miltenberger.
    In a proceeding under the Intrusion into office law, at the instance and on the relation of a private individual, the first inquiry is: has the Relator a muniment of title to the office held by the Defendant? If he has not, and only contests the rights of the Defendant, without exhibiting an apparent title in himself, the proceeding must fall.
    The object of that law, which provides for a summary proceeding to test the superiority of tho respective titles of the Relator and the Defendant, to an office, was not to embrace eases in which no prima facie title, such as a commission, a judgment or a return of eleetion, can be produced by office claimants.
    The law in question was not intended as a substitute for the law providing for and regulating the contestation of elections, and has not repealed the same.
    ^PPEAL from the Civil District Court, parish of Orleans. Tissot,

      W. B. Lancaster and Miller, Finney & Miller for the Relator, Appellant;
    First — The right to public office, to be filled by elections, is derived from the fact ol election. The remedy under the Intrusion Act is in favor of those rightfully entitled to the office, the suit to be brought by the State, joining the name of the party entitled. The issue of the commission does not settle the right. Hence, one rightfully entitled to the office by the faotof his election, m.ay involre the remedy afforded by the Act, against one to whom the commission has issued; in other words, the commission is not the tost of the right, so as to preclude judicial inquiry into the issue, who is rightfully entitled to the office. Revised Statutes, Secs. 2593, 2397, 2398.
    Second — The remedy under the Intrusion Act, is given to the State for the benefit of the party rightfully entitled to the office, but it is none the less the suit of the State. The right to contest the election is given to the individual. The remedies are distinct. Hence, if tho individual, whose name in this case, is set forth in the petition as rightfully entitled to the office, could by his individual actions contest the election of his competitor who holds the commission, still the remedy under the Intrusion Act would be preserved. State vs. Delassize, 21 An, 710; Hayes vs. Thompson, ibid, 655; Duson vs. Thompson, 32 An, 864.
    The right to contest an election must be derived from statute. The office of Recorder of the Second Recorder’s Court is not embraced in Sections 1418, 1419, of the Revised Statutes, or in the Act Ho. 24 of 1877, first session, p. 26. Acts of 1877, extra session, p. 2C0, Secs. 1, 3; State ex rel. Rousseau, 13 An. 89.

      Spencer & White and F. O. Zacharie for Respondent and Appellee:
    First — A question of law alone is presented.
    Second — Ko suit can be brought by a person joined with the State under the Intrusion into office Act of 1868, unless that person have a commission or some other muniment of title.
    Third — His remedy is by a contest of the election on its merits under Arts. 1418 and 1419, and the Act 26 of 1877, amendatory thereto.
    Fourth — The meaning of the word “ district,” in Act 26 of 1877, is not confined to judicial districts, but extends to all “districts” created by law, includingthe Recorders Districts of Orleans, Tax Collectors Districts, School Districts, Levee Districts, etc.
   The opinion of the Court was delivered by

Bermudez, C. J.

This proceeding was instituted by the State, under the intrusion into office act, at the instance of J. T. Ford, who claims that he is rightfully entitled to the office of Recorder of the Second and Third Districts of New Orleans. Upon that fundamental averment the charge is made that the defendant has nevertheless taken possession,of that office, holds the same, and exercises the functions thereof, as though elected thereto, all this unlawfully, by usurpation of, and intrusion into, said office. Prayer is made for judgment, decreeing that the defendant is a usurper and an intruder; that the relator is entitled to the office, and that the defendant do turn over to him the said office, together with all the books, papers, appurtenances, etc., thereunto belonging.

In bar the defendant pleads that the relator has not been returned as elected, and has not been commissioned to the office; that the respondent has been returned as elected thereto, and has been accordingly commissioned; that the relator has not even a prima facie right to the office, and could not occupy it even if it were unquestionably vacant, and that he cannot assert his pretensions to the office in this proceeding.

The defense was sustained, and the suit dismissed. The judgment thus rendered was not appealed from by the State, the Attorney General refusing to do so, but it is brought up for review by Ford, the relator, whose right in the premises is not questioned. 21 An. 755; 30 An. 70.

An admission in the record is to rhe effect that the defendant was, at the time of the election and promulgation of the result thereof, Recorder of the lower districts of the city; that the plaintiff holds no commission as such Recorder, the defendant having been declared ■elected to the office by proclamation of the result of the election, and having been commissioned by the Governor, upon which commission he has qualified and is in the actual discharge of the'duties of the office, as his own successor.

The pretensions of the relator are predicated upon sections 2593, 2597, of the Revised Statutes, relative to intrusions into office. The law, as found in those sections, has already been subjected to legal analysis, and has received a judicial construction which establishes that in a proceeding under it the courts are without authority to go beyond an examination of the titles set up by the contestants to the office in controversy; and' that the only power which they can exercise, is to decide which, if any, of the litigants has a legal title to the office. The ■commission of each has been held to be the evidence of such title. 25 An. 264, 268.

We do not think, however, that a commission is invariably the only -or conclusive evidence of the right of a contestant to the office in controversy, though we hold that he must exhibit a prima facie complete muniment of title.

Such party may allege and produce what is equivalent, if not superior, to a commission, viz: a definitive judgment of a competent court -decreeing him entitled to the office.

Independent of such a ease, the party claiming to have been elected to a public office may hold and rely upon an official return duly ■published by the proper officer as the result of the election at which he was a candidate.

It is a fact likely to occur, as it is not without precedent, that after the rendition of such judgment or the publication of such return, the Executive may, with or without valid cause, hesitateor refuse to issue a ■commission to the party recognized by the judgment or return, as entitled to the office, and that the courts may be powerless to compel the issuance of such commission. It is possible that the judgment may not be conclusive upon the incumbent because he was not a party to it, or that it be otherwise inoperative, or that the legality and •correctness of the return be questioned.

In such cases, the right of the party judicially recognized, or in whose favor the return was made, to require a test proceeding under the intrusion act, would have to be acknowledged, and his muniment of title, judgment or return, would be as much prima facie, as a commis•sion regularly issued to him by the Executive under the great seal of the State.

Prior to 1868, the only mode in which the right to an elective office ■could be asserted and determined, was by proceeding under the law regulating the contestation of an election.

The intrusion into office act, under which this suit was instituted, was not intended to repeal that law, and to serve as a substitute for it. They both can co-exist. The former may prove ancillary to the latter. It was not designed to apply to cases in which an investigation of matters of fact, originating anterior to all official action, was contemplated; or in which the correctness of such action was to be inquired into and passed upon; in other words, its object was not to embrace within its. purview cases in which no prima facie title, such as a commission, a judgment, a return, was exhibited by office claimants. It cannot be supposed for an instant that it was meant to permit any person merely-claiming an office, or to have an interest, to inquire under the cover of the State, into, and test the rights of incumbents.

Its purpose was to subject the rights of the latter to inquiry and: to scrutiny at the demand of the State, either on its own motion or at the instance of parties claiming to be rightfully entitled to the office, and then only upon exhibition to the State attorney first, and to the-State judicial officer next, of same apparent title, sufficient on its face-to justify an induction into office in the event of an actual or of a declared vacancy.

Were it not so, it would follow that by a proceeding which is summary in its character, in which no jury trial can be had, the law relative-to the contestation of elections would prove a dead letter, and that a party entitled, as a matter of right, to a trial by his peers, would be-frustrated of tbat high privilege so precious in cases of that character.

It cannot be admitted tbat such ever was the intent of the lawmaker.

In a proceeding under the intrusion act, by the State alone, the inquiry is: Has the defendant usurped and intruded into the office ? If he heve, he is excluded and ejected from it; the office is declared vacant, and remains to be filled as provided by law. If the defendant is found not to have usurped or intruded, then he is quieted in the possession of' the office, and in the exercise of his functions.

In a proceeding under the same act, by the State, on the relation of an “ interested person,” the first inquiry is: Has the relator a muniment of title to the office held by the defendant ? If he have, the court passes at the threshold upon its sufficiency and effect; and if it establish a prima facie right to the office, the next inquiry is into the right of tenure of the defendant; but if the relator have no such muniment, and if the State do not press on its own behalf an investigation, the litigation drops, the contest ends, the proceedings are to be dismissed, and the incumbent must not then be disturbed.

It is not because an incumbent is an intruder or usurper that a relator is entitled to the office. The relator must first satisfy the court that he can fill the vacancy which he seeks to have created by the ejectment of the usurper or intruder.

If he cannot do so, he has no interest in the proceeding, and cannot" prosecute it when the State does not.

In the present instance the State has refused to prosecute an appeal,, and the relator has exhibited no muniment of title which would authorize his induction in case the defendant were pronounced a usurper or intruder. Were the defendant to desist from any opposition, were he-to resign, or to die, the suit would abate; but the relator could not, on that account, be inducted into the office to which he lays claim; for he-holds no commission, exhibits no return or judgment declaring him entitled to it. Sec. 2598, B. S.

On the contrary, by a judicial admission, which cannot be misconstrued, which is entitled to more weight and effect than questionable evi- ' dence, he formally admits that he is the holder and bearer of no commission, of no judgment, of no return, and that the defendant was-returned and commissioned as elected to the office in dispute.

We do not consider that the rulings in 21 An. 655, 710, and 26 An. 374, clash with those made in 25th Annual. They were made in cases in-which commissioned complainants were the actors, unless perhaps it be-in the case of Wickliffe, in which the commission is not alluded to, but . can be inferred to have been relied on.

In connection with the decisions in 25 An., see Franklin vs. Allain, No. 4634; Nichol vs. Webre, No. 4633; Comeaux vs. LeBlanc, No. 4632, maintaining the same doctrine. 32 An. 934.

Whether the relator could have resorted to another proceeding,, either under the law relative to the contestation of elections, or under any other law, in order to assert and vindicate his alledged rights to the-office held by the defendant, is a question which it is not necessary to-solve, to determine the present litigation.

He has not contested the election of the defendant either by attacking the return, as was done in the Babin case, 32 An. 579, or by any other proceeding, save the present one, in which the assault, as we have-explained, cannot be entertained.

If he had a right to bring a suit, under any law, he should have-instituted it. If he had not, he finds himself in no worse predicament, than those who once thought that they could have recourse to' the-same, and who were disappointed in their expectations, as in theBousseau case. 13 An. 89.

If the relator have rights in this case, otherwise than as a claimant of the office, he has not shown that the defendant is a usurper and an intruder in the sense of the intrusion act. The commissions which the defendant holds show the contrary. If the defendant was not -re-elected,. ■and is not entitled to the new commission, he then holds, under his first commission, until his successor be commissioned and qualified ; if he . was legally re-elected, his second commission empowers him conclusively to discharge the functions of the office.

The judgment appealed from is affirmed with costs.


text:
    No. 8153.
    State of Louisiana ex rel. Elizabeth Horsch vs. Judge Civil District Court, Division D.
    This Court will not use its supervisory power, under Article 90 of the Constitution, to compel a District Judge, who has appointed, Recording to his judgment and his conscience, one of two applicants tutor of a minor, to appoint the other applicant instead, on the ground that the latter is the party designated by the law. The Decree can only be reversed on Appeal, if illegal.
    RTor is it an open question any more, that a Mandamus does not lie to control the exercise of the discretion of inferior courts, in a particular manner.
    ApPLICATION for Writ of Mandamus.

      W. B. Koontz and Lacey & Butler for the Relatrix:
    The judgment of the inferior court is productive of great wrong and hardship toward reía- * trix and her minor grandchildren, from which no relief or remedy is afforded by appeal. C. P. 580.
    In all cases where the action of the lower court is promotive of great hardship and injustice, whether the proceedings be regular or otherwise, and there is no other remedy, the Court should exercise its supervisory power. Constitution, Arts. 81, 90 ; 32 An. 549, 655, 719, 776.
    'There can be no dative tutorship where the minor has relations, who may claim the tutorship by the effect of the law. Rev. Civil Code, 273, 266, 270 ; 5 Rob. 268; 9 An. 356; 10 La. 540. *
    'The inferior judge was without discretion to refuse relatrix the legal tutorship. Rev. Civil Code, 266.
    neither is it the exercise of a sound discretion to refuse relatrix the dative tutorship for causes not enumerated in the Civil Code (Arts. 302, 303) as grounds of exclusion, and this Court should interfere to prevent the wrong and injury. 29 An. 795.
    ‘ This case presents itself as coming within the reservation made in State ex rel. Oity of New Orleans vs. Judge, 32 An. p. 549, as an exceptional case calling for special relief.
    Relatrix, in any event, should be given the custody of the persons and property of the minors until she is heard on appeal from the judgments depriving her of her grandchildren.

      K. Michinard for the Respondent.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a mandamus to compel ■■the respondent to render a particular decree.

The relatrix claims that it was the duty of the respondent to appoint her tutrix of her minor grandchildren, whose father and mother have died, without appointing to them a testamentary tutor; that he has rejected her application, and conferred the appointment on a half' brother of the minors, against whom she prefers grave charges; that, the judgment is final by signature; that she cannot take a suspensiveappeal from it, none being allowed by law; that she has -sustained a. wrong which should be redressed, and that her only mode of relief is to appeal to this Court for the exercise of its supervisory powers. She concludes, by praying that the District Judge be commanded to appoint her legal, or, at least dative tutrix of her minor grandchildren.

The respondent returns that the merits of the case, involving the-claim of the relatrix to the tutorship in question, were regularly and contradictorily tried and decided by him in the conscientious discharge of his duties.

The relief sought by the relatrix cannot be granted her in the present proceeding. /

Her right to the appointment is not absolute and unquestionable.

If it was the duty of the District Judge to have appointed her, it-was not a ministerial duty, the performance of which can be enforced in this form.

The law requires of him, in a matter like that submitted to him,, viz: one in which there are conflicting claims between the ascending and other relatives, and one of them pretends to have a better right than the person claiming the tutorship, that he shall determine the case in a summary way, and confer the tutorship “on the person whom he thinks-to have the.best right,’’ reserving the right of appeal to the other party-O. P. 954, 955. In the decision of such a ease, he is clearly vested with a judicial discretion.

Even if it were otherwise, it does not appear that he has refused to exercise, that discretion; on the contrary, it is patent that he has done so. The indisputable right of the relatrix was to have her claim passed upon. The District Judge could have been compelled to determine it, had he refused to do so; but he has passed upon and has rejected it. 14 Wall. 152.

Besides, the relatrix has an adequate and specific remedy. The law specially provides that an appeal lies in such a case. C. P. 580,1059. It is true that the appeal will not suspend the execution of the judgment of appointment, but with the propriety or impropriety of the law this Court has nothing to do. It takes and enforces it as it finds it on the statute book. We are not, however, to infer that the minors will, on that account, suffer, an irreparable injury. Even then we do not see how we could afford the relief. 22 An. 116; 14 Wall. 152; 35 Cal. 213.

It is the duty of the District Judge to require from the tutor whom he has appointed, a bond for a sufficient amount, and to see that the ¡surety or sureties furnished are good and solvent, in the meaning of the law. We have no reason to assume that he will prove derelict to his ■trust, and we believe to the reverse.

The rule may be considered as established by an overwhelming •current of authority, English, American and local, that a mandamus does not lie to control the exercise of the discretion of inferior courts in ■a particular manner. Their decision, specially on the merits of a case, must be left untrammeled. When pronounced in a matter properly before them, it cannot be reviewed and corrected in such a proceeding. Whether the judgment was correctly or' incorrectly rendered in such ■matter is immaterial. In an appealable case it can be revised and cor■rected, if need be, on appeal only; and in unappealable cases it must remain as rendered. The fact that t^e decision complained of may seem to bear harshly and oppressively upon the party complaining, does not warrant a departure from the well-established rule.

Ex parte Newman, 14 Wall. 152; 35 Cal. 213; 4 Pet. 404; 1 Denio 679; C. P. 905; 2 An. 979; 3 An. 716; 8 An. 92; 9 An. 14, 250; 10 An. 420; 22 An. 116; 23 An. 766; 26 An. 116; 19 An. 6; also other authorities cited below.

The granting of a mandamus in the present case would be, in an irregular proceeding, to reverse the judicial action of the District Judge, to compel him to retrace his steps, to annul his j udgment, and to force him to render another judgment, not according to his own views, but in ■conformity with those of a superior court substituted thereto. It would be to usurp, practically, the functions of the inferior tribunal in the determination of the merits of the case. 15 An. 113; 13 An. 483; 17 An. 328, 288; 22 An. 116; 26 An. 121; 28 An. 805; 3 An. 978.

An interference of that character would speedily absorb the time of •this Court in reviewing, on applications for a mandamus, the findings of ‘lower courts to the great prejudice of the regular business of this Court, •and would engender a confusion and delay in litigation, which would thwart the ends of justice, and soon become unbearable. 94 N. S. 414; 32 An. 978; 15 An. 113; O. B., folio 43; Ib. 211-213; 17 An. 328; 98 U. S. 240; 9 Pet. 573; 13 Pet. 404; 14 Wall. 152; 35 Cal. 213; 4 Pet. 404; 3 Ad. & E. N. S. 810; 3 Ad. & E. 725; 5 Halst. 57; 1 Mich. 359; 4 Cow. 49; 50 Mo. 172; 46 Barb. 27; 4 Mo. 286; 3 Ark. 427; High on Ex. Rem. §§ 176, 177, 181, 186, 188, 189, 197, and authorities at foot of pages 148, 150, 151, 152—Ed. 1874.

We have had occasion several times to consider the spirit and letter of Art. 90 of the Constitution, invoked by the relatrix, and to state ¡generally the nature of the cases within its purview. 32 An. 552, 555, ■and others.

We do not think that in the circumstances presented by the relatrix we would be justified in exercising in her behalf the plenary powders conferred upon us by that constitutional provision.

It is, therefore, adjudged and decreed that the preliminary orders ■herein made be rescinded, and that the application for a mandamus be ■refused with costs.


author: Spencer, J. Levy, J.

text:
    No. 6834.
    Miss Kate Nugent vs. John McCaffrey.
    On Motion to dismiss.
    En the absence of any name as payee of the Bond of appeal, this Court will consider the Bond payable to the person to whom the law makes it so, to wit: the Clerk of Court; „ and will not dismiss the Appeal on that ground.
    On the merits.
    .An action for the recovery of real estate and damages, is liable to seizure.
    'Notice of seizure of such an action, to the Clerk of the Court, in which the suit is pending, to the defendant in the suit and to the plaintiff therein, is proper and sufficient, and constitutes a valid seizure.
    ’The appraisement in a case of such seizure, should be as in other cases of seizure of incorporeal rights.
    'The advertisement of the Sheriff for the sale of such a claim, should be during thirty days, as for the salo of immovables.
    "The purchaser of the claim in such a case, being the defendant himself against whom the action is brought, has the right to plead Confusion, in a Buie against the plaintiff in the action, taken for'the purpose of having the suit dismissed.
    APPEAL from the Fourth District Court, parish of Orleans. Houston, J.

      W. B. Lancaster and F. A. Flanagan for Plaintiff and Appellant:
    •First — A right of action to annul a sale of real estate and for damages thereunder, is not such appreciable right as can be seized, appraised and sold. Both rights are strictly personal to the original holder and are not such as can be exercised by his creditors without his consent.
    “Second — Such seizure, if at all, cannot be made in the hands of the clerk of the court in which the suit is pending, especially by a mere notice, as in this case; it would have to be made in the hands of the debtor.
    'Third — A judgment creditor cannot cause the sheriff to seize money, or a money claim, due by himself to his judgment debtor. By the mere fact of law the two debts, so far as they co-exist, are already mutually extinguished by compensation.
    . ¡Fourth — Although a third person may seize a suit belonging to his judgment debtor, and have it appraised by experts according to their opinion of its chances for success, as between tlie parties to tlie suit, this cannot be done. The law has provided for the appraisement in such case by the judgment oí a court; of justice, after full trial. The plaintiff has by law, as between himself and defendant, an absolute right to a jury.
    3Tifth — An action for the recovery of an immovable is itself an immovable by intendment oí law, and cannot be sold, after seizure, without an advertisement of thirty days.
    Sixth — The plea of confusion must be made by peremptory exception or by answer — not by rule.
    Seventh — The plea of confusion, made by defendant, essentially implies an admission that the debt against himself, which he avers to have been thus extinguished, had a real existence.

      Cutler & Dibble on the same side.

      J. O. Nixon, Jr., for Defendant and Appellee.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Spencer, J.

Defendant and appellee moves to dismiss this appeal, on three grounds.

First. Because the bond names no one as payee.

Second. Because the bond is signed Kate A. Nugent instead of Kate Nugent.

Third. The bond does not sufficiently identify the judgment appealed from.

The bond is in the usual form, declaring that appellant and her surety, naming both, “ are held and firmly bound unto-- executors, administrators and assigns, in the sum of $150,” etc.

Then follows the condition of the bond, reciting “that Kate A. Nugent has this day filed motion of appeal from a final judgment, rendered against her in the suit of Kate Nugent vs. John McCaffrey, No. 43,543, in the Fourth District Court for the parish of Orleans,” etc.

'It is manifest that Kate A. Nugent is the Kate Nugent “against ” whom judgment was rendered in the suit No. 43,543. The bond so declares expressly. The judgment appealed from is sufficiently described.

In the absence of any name as payee of the bond, we will supply it, by considering it as payable to the person to whom the law says it shall be made payable, to wit: the Clerk of the Court — just as in the absence of an amount being stated, we will supply it by reference to the order of appeal. See “Gibbs vs. Lum,” 29 A. 526. This ease differs from that of Marks vs. Herman, 21 A. 756, where the bond was payable to the plaintiffs.

The motion to dismiss is overruled.

On the Merits.

The opinion of the Court was delivered by

Levy, J.

John McCaffrey, appellee herein, obtained two judgments against the plaintiff; under a writ of seizure and sale under 'one of these judgments; a certain piece of property of the plaintiff, Miss Kate Nugent, affected by a mortgage recognized in said judgment, was seized and sold, and McCaffrey became the purchaser thereof. The property did not realize the amount of the mortgage debt. Miss Nugent, some months after this sale, brought this suit against McCaffrey, in which she prayed that she might be decreed to be the owner of the said -property, and put in possession of the same, alleging that the seizure, sale, and advertisement were not made according to law, and that the adjudication to McCaffrey was illegal and vested no title to the property in him, and also claimed damages to the extent of $5000 for the alleged wrongful acts, possession, destruction of fences and deterioration of the property by McCaffrey. McCaffrey having a monied judgment still due, issued execution thereon and had seized and offered for sale all the right, title, and interest of Miss Nugent in and to this suit. A rule to release this seizure, was made absolute in 1875, by the then Judge of the Fourth District Court. Subsequently, in February, 1877, another execution was issued and the same property seized thereunder, viz: the right, title and interest of Miss Nugent in this suit. McCaffrey became the adjudicatee of this property, appeared in Court and took a rule upon Miss Nugent to show cause why her suit should not be dismissed, on the ground that he had become owner of all her right, title and interest therein, and her claim had become extinguished by confusion. On the trial, the sheriff’s return on the writ showing the adjudication to McCaffrey and the proces verbal of the sale were offered and filed in evidence. This rule was made absolute and plaintiff’s suit dismissed. From that judgment plaintiff has taken this appeal.

The grounds on which appellant seeks a reversal of the judgment dismissing this suit are:

1st. That an action to annul a sale of real estate and for damages, is not such an appreciable right as can be seized, appraised and sold.

2d. Such seizure cannot be made in the hands of the Clerk of the Court, especially by mere notice. It would have to be made in the hands of the debtor.

3d. A judgment creditor cannot cause the sheriff to seize money or a money claim due by himself to his judgment debtor. By the mere effect of law the co-existing debts are mutually extinguished by compensation.

4th. That appraisement of a suit cannot be made by experts, but only after trial and the finding of a jury as to the value.

5th. An action for recovery of an immovable is itself an immovable, and cannot be sold after seizure, without thirty days advertisement.

6th. The plea of confusion must be made by peremptory exception or by answer, not by rule.

7th. The plea of confusion admits that the debt had a real existence.

The action pending, in which there is a claim to real estate and for damages, is liable to seizure:

1st. The decision of this Court in the case of Field vs. Weaver, not yet reported, so far from weakening, strengthens this case. There we held that the right to issue an injunction was not subject to seizure, but that the claim for damages was thus subject. Here there is a claim for the recovery of particular property, not a mere right to the exercise of remedial process or conservatory action.

2d. We find no difficulty as to the manner in which the seizure was made. A tangible taking into possession by the sheriff of the right, title and.interest of Miss Nugent in the suit, was a physical impossibility, because it was incorporeal. Notice to the Clerk of the Court, in which the suit was pending, to the defendant in the suit and to the plaintiff therein was proper, and constituted a valid .and sufficient seizure.

3d. We see nothing requiring consideration in this ground of plaintiff.

4th. So, also, with this ground. We deem the rights of the plaintiff in the pending suit a subject for appraisement under the law regulating the appraisement of property seized under execution, just as any other incorporeal right, such as a right or interest of an heir in an unsettled succession.

5th. So far as the action for the recovery of an immovable is concerned, we think it clear that such action is of itself an immovable by intendment of law, and immovables cannot be sold under seizure, without previous advertisement of thirty days. There may, however, be a wáiver by the defendant in execution. In this case we find no such waiver in the record. Article 471 of the Code of Practice, declares that, among incorporeal rights considered as immovable from the object to which they apply, is, “an action for the recovery of an immovable estate or an entire succession.” Article 670 of the Code of Practice, requires that, a sale of immovables by the sheriff shall be made after thirty days advertisement. So far, then, as the action for the recovery -oí the immovable estate is concerned, the advertisement was insufficient.

6th. The plea of confusion was not improperly set up in the rule taken by McCaffrey. Confusion arises and is created by operation of daw, and the existence of facts which cause confusion, if shown by the ■evidence, would be cognizable by the Court and recognized without re - gard to the mere formal manner or particular mode in which it was pleaded.

7th. This ground is untenable and does not merit serious consideration or discussion.

McCaffrey, alleging that he had become owner by purchase at sheriff’s sale of the right, title and interest of Miss Nugent in the suit referred to, of Nugent vs. McCaffrey, obtained a rule against the plaintiff to show cause why the suit should not be dismissed, etc. The plaintiff, defendant in this rule, in her answer thereto, specially denied that there had been any valid sale of said rights, as claimed by McCaffrey. McCaffrey, by the adoption of this proceeding, sought to be recognized as owner of the right of action, and as such, entitled to control the •same and specially to dismiss it. He offered in evidence the title from the sheriff and all the proceedings in the suit, in which his judgment ■was obtained, on which execution was issued and the seizure and sale were made. The defendant in rule denied the validity of the title set «up. Plaintiff offered the sheriff’s sale and proceedings in suit in evidence, and we think it was competent for defendant, under her denial of ’the validity of the sale and proceedings, to show on the face of the papers the illegality thereof. The issue of such validity was tendered by the plaintiff and accepted by the defendant in rule, and thus joined, we ■think she clearly had the right to avail herself of the patent defects in the title of plaintiff.

The sheriff’s deed itself shows that the property was offered for -sale and adjudicated, so far as the right to recover the immovable property was involved, without complying with the necessary legal requirements as to advertisement, and to the extent of the sale of this action or the right to this action for the recovery of the immovable, was defective, and cannot be maintained.

It is, therefore, ordered,adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that this cause be •remanded to the Civil District Court of the parish of Orleans, to be proceeded with according to law and in accordance with the views herein «expressed, and that the appellee do pay the costs of this appeal.


text:
    No. 8192.
    Board of Levee Commissioners vs. Lorio Bros. Same vs. Leonce Lorio. Consolidated.
    The “ contribution ” which the Board of Levee Commissioners is authorized by law to levy upon all lands protected by the levees, etc., is not a " tax, toll or impost," within the meaning of the Constitution. Affirming previous Decisions.
    The question of the legality of such contributions will, therefore, not be considered by this-Court in a case in which the amount involved is below its appellate jurisdiction.
    APPEAL from the Twenty-Third Judicial District Court, parish of Iberville. Cole, J.

      Barrow '& Pope for Plaintiffs and Appellees:
    A law authorizing contributions for the purpose of building local levees is not a law levying-a tax, and a suit to recover the amount of such contribution, where same is less than $1000, is not appealable to the Supreme Court. 21 An. 51; Rooney vs. Brown, 20 An. 499; 11 An. 220, 370; 14 An. 498; 2'An. 330; 11 An. 324; 9 R. 333; 4 An. 2; 11 M. 324; 32 An. , 818.

      Aleoo. Hébert for Defendants and Appellants:
    Act No. 78, approved April 1st, 1876, and Act No. 46, approved April 3d, 1877, of the G-eneral Assembly of Louisiana, creating a Special Levee District, situated partly in the parishes of Iberville and Point© Coupóe, are unconstitutional.
    First — Because tbe objects are not stated in their titles.
    Second — Because the Legislature cannot enact laws by implication or mere reference.
    Third — Because the tax imposed is not equal and uniform.
    Fourth — Because receiving no benefits from said " Levee District,” their property is taken for purposes of public utility without just or adequate compensation.
    Fifth — The tax is void, also, because it was never authorized by a majority of the voters of the district, as required by Acts of 1872, p. 56.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Fenner, J.

The above two oases were consolidated, tried and adjudicated together. The judgment appealed from is for the amount of $80 50 against each defendant.

The right of appeal rests on the claim that the case is one in which the constitutionality or legality of a tax, toll or' impost is in contestation.

■ The motion to dismiss is based on the denial that any such question is involved.

The plaintiffs aré a corporation, organized under Acts 78 of 1876, and 16 of 1877, vested with powers to construct and maintain levees for the protection, from inundation by the waters of the Mississippi river, of lands within a certain designated district, and, in the language of the act, “ to levy a contribution upon all lands protected by said levee,” etc..

The suits are brought for the collection of such assessments, and •the question is, whether they are a “ tax, toll or impost ” within the meaning of the Constitution.

The question seems to be no longer an open one in our jurisprudence, it having been held in numerous decisions, that contributions of this character, provided for the purpose of constructing public works for the advantage of particular districts, and levied on property with reference to the supposed benefits derived by the property from the works, are not taxes, tolls or imposts, within the meaning of those words ■as used in the Constitution.

21 An. 51; 20 An. 499; 11 O. S. 324; 2 An. 330; 4 An. 1; 11 An. 220, 324, 370; 14 An. 498; 9 R. 333.

In Rooney vs. Brown, 21 An. 51, the precise question of jurisdiction here involved was presented, and the appeal was dismissed on the ground that suits for the collection of such contributions, though their legality or constitutionality were contested therein, were not cases involving the “ constitutionality or legality of a tax, 'toll or impost.”

Questions affecting the validity of acts of the co-ordinate legislative branch of the government should not be decided by courts unless ■clearly and necessarily within their jurisdiction.

The appeal is, therefore, dismissed at appellants’ cost.