author: Poché, J. Fenner, J.

text:
    No. 9432.
    The State ex rel. Quentin D. Kane vs. H. L. Lazarus, Judge, et al.
    . The power of the judge of any court to punish, by fine and imprisonment, a witness for refusing to answer truthfully to any questions put to him, which is simply peijury, cannot be derived from Art. 136, Codo of Practice, or from any other provision of our law. Perjury is a felony, which cannot be punished otherwise than according to the prescribed forms of law.
    An order from a district judge fining and imprisoning a witness on such grounds, can be examined by this Court under a certiorcm, and the order will be annulled and sec aside.
    ^PPLICATION for Certiorari.

      Joseph P. Hornor and F. W. Baker for the Relator.
    Respondent Judge m propria persona.

   The opinion of the Court was delivered by

Poché, J.

The relator complains that he is illegally and unjustly deprived of his liberty by the respondent judge, and he seeks relief by the writ of certiorari.

The record shows that he was committed to jail for thirty days and condemned to pay a fine of one hundred dollars, for the reason that, being a witness in a cause pending before the respondent’s court, he refused to answer truthfully to questions put to him as witness aforesaid.

Under the issues presented by the pleadings, we are called on to solve two questions:

1. Our authority to examine into the proceedings.

2. The authority or power of respondent to punish the relator, as herein proposed by him.

I.

Our power or authority to entertain the application is absolutely unquestionable, under the provisions of Article 90 of the Constitution creating the supervisory jurisdiction of this Court. No subject calls louder for its exercise than the endangered liberty of the citizen. The authority is so essential to a salutary protection of the sacred rights of individuals that it was exercised by the highest tribunal of the then Territory of Louisiana, in the absence of any express delegation of the power to the court by the Constitution. Detournion vs. Dormenon, 1 Martin, 138.

Reason and justice alike demand its exercise when expressly conferred by the Constitution. But since the case of DeBuys, the question can hardly be considered as an open one. We therein announced our intention to exercise our supervisory powers for the purpose of granting relief to all parties who would complain of a flagrant usurpation of authority, to whom serious injury might accrue, and who would be provided by the law with no other remedies. 32 Ann. 1258.

The same consideration shaped our course in the cases of Liversay and Hero. 34 Ann. 741; 36 Ann. 352.

II.

We therefore reach the question of the regularity and validity of the proceedings resulting in the punishment of the relator.

The first inquiry suggested by the commitment is the nature of the offense for which it is proposed to punish him.

It is clear that his offense is not treated as a contempt of the authority of the court, as provided for in Article 131 of the Code of Practice. In that case, the fine could not have exceeded fifty dollars and tlie imprisonment could not have extended beyond ten days; and therefore the proceedings would be irregular and null, because it would have transgressed beyond legal limits.

In point of fact, respondent disclaims the authority of that article, and rests his action on- the provisions of Article 136 of the Code of Practice, which reads as follows:

“If a witness summoned in a cause refuse to answer any questions put to him, except such as might lead him to accuse himself of some crime, the court may fine such witness in a sum not exceeding two hundre'd ahd fifty dollars, and imprison him for a term not exceeding thirty days.”

The offense contemplated by the article is a contempt of court, through and by means of a refusal to perform a legal duty in faeiern curia. Does the offense charged against this relator come within the purview of that law? It is not only a clear inference from the language of the commitment, but it is formally admitted by the respondent judge that the witness did not refuse to answer the questions put to him, but that he did answer them all. Hence his offense consists in not giving true answers to such questions, or in other words, in committing willful perjury. The proceeding, therefore, involves the assumed power of the judge to punish by fine and imprisonment, without legal process or trial, a witness testifying in his court, because, in the opinion of the judge, he has prevaricated and not told the truth.

We are more than convinced that no such power can be derived from the article under consideration, or from any other provision of our law, without the insertion of the word “truthfully” after the word “ answer.” The plain text of the article forcibly repels such a construction, and the very next article in the Code which grants the right to sue the delinquent witness for damages to the party aggrieved by his refusal to testify, leaves no possible doubt as to the true meaning of the provision.

The strained construction of the article, which is the fallacy of the unwarranted assumption of power in the premises, also clashes with the law which clearly removes the offense of perjury from the domain of acts of contempt and ranks it with other felonies—to be charged in accordance with constitutional requirements, to be tried conformably to solemn provisions of law, and to be punished by imprisonment at hard labor for a term not less than five years.

The system or jurisprudence which would place it in the power of any judge or court to punish such an offense, as in case of contempt, without the intervention of a jury, and practically without trial, would open the door to a despotism most dangerous to the libertv of the citizen, and swiftly subversive of all republican institutions.

The commitment in this case is glaringly irregular, and absolutely illegal, null and void. Hence, the relator is entitled to the full relief which he seeks at our hands.

It is therefore ordered and decreed that the order fining and imprisoning the reiator for contempt be declared null and void, and bo set aside.

Concurring Opinion.

Fenner, J.

The relief sought is to annul and set aside an order of the respondent judge confining and imprisoning- relator for contempt of court.

The order sentenced relator to imprisonment in the parish prison for thirty days, and to pay a fine of one hundred dollars.

As we said in the Hero case: “Our investigation must be confined to the questions of the regularity and validity of the proceedings as disclosed on the face of the record.” 36 Ann. 352.

The proceedings present no defect of regularity. The alleged contempt was committed in faciem curios and was, therefore, punishable by summary commitment. State ex rel. Wintz vs. Judge, 32 Ann. 1223; Bishop Cr. L., § 241.

The only question remaining is the validity of the order; i. e. whether it was such an order as the judge had power and authority to mate. If not such an order it is null and void, and the relief sought must be granted. State ex rel. Hero vs. Judge, 36 Ann. 353; State ex rel. Liversey vs. Judge, 35 Ann. 741.

It appears from the face of the commitment and from the return of the judge, that the alleged contempt consisted “in refusing to answer truthfully to questions propounded to them, as witnesses, by counsel and by the court.”

The case is much more simple than we had supposed it to be from the pleadings and argument.

We do not find ourselves called on to determine in this case whether the refusal of a witness to “answer truthfully” questions propounded to him, might not, under conceivable circumstances, be a punishable contempt. The question is, whether it constitutes theparticular*' contempt described in Art. 136 of the Code of Practice. Contempts of court generally are punishable only “by a fine not exceeding fifty dollars and imprisonment for a period not exceeding ten days,” according to .Article ISl.of the Code of Practice.

Art. 136 is a special provision and declares: “If a witness, summoned in a cause, refuse to answer any question put to him, except such as might lead him to accuse himself of some crime, the court may fine such witness in a sum not exceeding two hundred and fifty dollars, and imprisonment fol- a term not exceeding thirty days.”

It is obvious that the fine of one hundred dollars and imprisonment for thirty days imposed in this case, are illegal and in excess of the authority'of the court, unless the contempt charged is the particular one described in Article. 136.

It is equally clear from the face of the record that relator is not charged with this particular contempt. It is not pretended that he refused to answer ” questions. The charge is that he refused to answer truthfully.” Such qualification is not contained in, and cannot be added to, Art. 136, which is a penal statute and is not to be extended by implication.

Conceding that relator was guilty of a contempt, it is not the contempt described in Art. 136, and was, therefore, punishable only under the mere general provisions of Art. 131.

As the punishment inflicted largely exceeds the limitations fixed in the latter article, the order was beyond the power and authority of the judge and must be annulled.

For these reasons I concur in the decree.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 9216.
    Succession of Kate Townsend.
    The proceeding by rule to know whether an executor has funds, to call for a true statement of his accounts and his bank book, and to mulct him with interest on any sum for which he maybe responsible and does not faithfully account, as also to dismiss Mm from office, is expressly authorized by Section 8, or 1464, of the R. S., and Article 115Í of the R. 0. C., which are all couched in the same terms.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      A. J. Murphy for Troisville Sykes, Appellant.

      J. Ad. JRogier, Attorney of Absent Heirs.
   The opinion of the Court was delivered by

Bermudez, C. J.

The appellant complains of a judgment which condemned him to pay twenty per cent interest on an amount of money which he is alleged to have illegally withdrawn from bank, and which dismisses him as executor of the deceased.

His defense is, that the proceeding by rule to mulct and remove him is unauthorized bylaw; that he is the universal legatee of the deceased; that as such, he has accepted her succession and has gone into possession of its assets; that thereby the succession was closed and its administration terminated, and that the courts have no further jurisdiction over the matter.

The proceeding was by rule by the attorney appointed to represent the absent heirs of the deceased. Its practical object was to know whether the executor had any funds in hand. It expressly requires him to deposit in court the bank book which the law directs to be kept of all succession moneys, and to file a tone statement of his accounts.

The summary proceeding is expressly authorized by Sec. 8 or 1464 of the R. S., or Article 1151 of the R. C., which are reproductions of the Act of 1855, No. 90, p. 78.

The law reads:

“Any creditor, or other person interested, may, at the regular sittings of the courts in New Orleans and in the county, as well during the vacation as the sitting of the court having jurisdiction, ñle in the clerk’s office a motion to know whether any executor, administrator, curator or syndic has any funds, and he shall be bound within ten days to ñle a true statement of his accounts, and his bank book if he has one, showing the amount of funds collected by him; and on failure to do so, shall be dismissed from office and pay ten per centum per annum interest on any sum for which he may be responsible.”

In 1887, Act 102, p. 92, was passed relative to voluntary surrenders and to the settlement of successions. By the third section of that act, any creditor or person interested could, on motion, require production in court of the bank book which the law declares shall be kept by syndics and succession representatives; and in a proper case the court, while passing on such motion, could not only inflict twenty per cent interest jper annum as a penalty on the delinquent official, but also remove him from his trust.

But, in 1855, by Act 90, p. 72, this section was recast and condensed, so as to eliminate the proceeding by rule.

In 1856, Succession of Pasquier, 11 Ann. 279, the proceeding by rule was not objected to, and the rule was treated by the parties “as a separate and distinct claim.”

The judgment was affirmed.

In 1870, however, Succession of Williams, 22 Ann. 94, it was held that the Act of 1887 had been repealed by the Act of 1855, and that the proceeding by rule was no longer authorized under that act, as formulated in Section 1463 of the R. S.

The ruling in 28 Ann. 323, is no shield to the appellant. The rule was merely for an account. It was not, until after the administrator had filed a tableau of debts, that another rule was taken for his dismissal. Tlie exception to the form of the proceeding was sustained on appeal, the Court holding that it was irregular and in violation of Arts. 1017 and 1018 of the C. P. No reference is made, either in the opinion or in the briefs in the case, to the Act of 1855, as embodied in Section 1464 of the E. S. It therefore did not receive the consideration to which it was well entitled.

Apart from finding a different condition of things, however slight, in that case, we are far from yielding that the provisions of the C. P. must control, under the circumstances mentioned in sec. 1464, which creates exceptions and provides for a specific summary remedy. If the opinion and decree in 28 Ann. so mean, they are entitled to no weight as authority and are overruled.

It is difficult to perceive why the proceeding by rule was not retained in the legislation of 1855, when it was preserved for germane objects by the same legislation in the section following.

Confronted with the fact that the words “on motion1'1 were left out, and that a previous Court has held that the summary proceeding was unauthorized and that the practice to some extent has been guided accordingly, we do not feel authorized now to determine differently.

It cannot be insisted that the rule in this matter was taken only under Sec. 7, or 1463, E. S., or Art. 1150 E. C. C., because it calls for twenty per cent instead of ten, allowed by the subsequent provision of law. It may well be taken under either, or both.

The rule was taken by one in interest—the attorney of absent heirs, appointed by the Court and under the instructions of the judge.

On the trial, the Court ascertained that the statement of accounts and bank book called for from the executor, and which under the law he should have kept in a proper manner, were not those which he filed and submitted.

The statement which the law demands is a true statement; that means, & faithful and accurate account. The bank book which should be kept is that showing a deposit of all funds received and an authorized withdrawal, if any, of part or of the whole of the same.

The bank book filed shows a deposit of $3049, and a withdrawal of the whole of that amount loss ten dollars, without any legal authority, except to the extent of some $300; while the statement shows a receipt by the executor of an additional sum of $4538 05, which does not appear to have been deposited.

The statement and the bank book submitted are clearly not such as the law expected the executor to produce. This dereliction of duty is the fcálwre mentioned in the law.

An application for letters of dative testamentary executorship, opposed by one who claims to be executor, can be entertained and granted ex parte, where, before the appointment • is made, the opponent is removed as such executor. The opposition falls with the removal.

Judgments dismissing succession representatives from office take effect upon being signed and cannot be suspended by appeal. They are to be executed provisionally.

While the Act of 1837 was in force, that is in 1852, the then Supreme Court was of opinion that the summary proceeding by motion was authorized and could be resorted to for the destitution of a succession representative in default. It went so far as to say that for failure to keep the money of the estate in bank, the Court might dismiss him ex officio for that cause. Peale vs. White, 7 Ann. p. 450, 3d par.

Of course, since the recasting and repealing of Sec. 3 of the Act of 1837, a succession representative, under Sec. 7, or 1463, R. S., could not be destituted by rule; but it does not follow that on a proceeding in that form, which is formally authorized by Sec. 8, or 1464, R. S., the succession representative cannot be removed for failure to file a true statement of his accounts and his properly kept bank book.

We are therefore of opinion, like the district judge, that the executor is a delinquent and that the summary proceeding against him is sanctioned by law.

As to his defense that he is the universal legatee of the deceased; that he has taken possession as such of the assets of the succession, which was thereby so effectually closed that the court ceased to have any further jurisdiction over the matter, it suffices to say that it is untenable.

An executor who has qualified and who is at the same time universal legatee, cannot, by any act purely his own, cease to be executor and represent himself as the sole heir. He cannot be permitted to deny his capacity as executor by setting up that he has accepted unconditionally as universal legatee and holds the estate, not as executor, but as owner. Succession of Frazier, 35 Ann. 381; 33 Ann. 595; 5 Ann. 644.

It is therefore ordered and decreed that the judgment appealed from be amended so as to strike out therefrom the word “ twenty,” and substitute thereto the word “ien.” as the rate of interest allowed; and that thus amended it be affirméd, at the cost of the succession, on appeal.

Rehearing refused.

Ids pendens is a matter of plea. Where it was not pleaded in the lower court, it cannot be raised on appeal.

By no fault of ours it was that we did not pass upon the second appeal taken from the second judgment herein rendered. We propose now to do so.

The appellant complains that the judgment appointing the public administrator as dative executor is erroneous, on the ground that it was rendered ex parte.

It appears that the public administrator applied for the dative executorship; that his application was advertised and opposed by Sykes, on numerous grounds, in his capacity of executor.

At the expiration of the delay allowed for opposing the application, the public administrator produced proof of the required publication and prayed to .be appointed.

In the meantime, in the other proceeding, contradictorily conducted, Sykes had been removed as executor.

The court took action on the petition of the public administrator, convinced that the opposition of Sykes to the appointment had fallen with his removal, and rendered judgment appointing the public administrator dative executor.

The appellant urges that, after the rule had been taken, a suit was brought to remove him, which is still pending and undecided before the same court. 1

The rule was taken on January 31,1884, and the suit was brought on February 9. The defendant in rule excepted on the 18th of February, but did not plead Us pendens.

How can he do so here ? The defense is a matter of plea, not one that can be raised iñ a brief.

Even then, how could lis pendens be pleaded in the fvrst proceeding? How could it be set up as against a proceeding in the same.court? It rests on a proceeding previously instituted in a different court of concurrent jurisdiction. Even then, the law provides that when the plea is not made the judgment first rendered is valid and executory against the party cast, and the proceedings in the other case shall be stayed and the suit dismissed. C. P. 94, 335.

The judgment removing Sykes as executor became final the moment it was signed. It belongs to that class of judgments from which no suspensive appeal lies, and which are executory at once. C. P. 580, 1059; R. C. C. 1160. There was, therefore, no necessity for the fixing of the application of the public administrator and for the hearing of Sykes, who had ceased to have any capacity to stand in judgment on Ms opposition. The court was right in considering that the opposition was as though it had never been filed, and in appointing the public administrator to the dative testamentary executorship.

This is a case entirely svA generis.

It is therefore ordered and decreed that the judgment appealed from be affirmed, with costs.

Rehearing refused.


author: Pocutó, J.

text:
    No. 9247.
    H. F. Bridewell vs. G. V. Halliday and F. P. Mix, Sheriff.
    The homestead exemption provided for in the Constitution, Arts. 219 and 220, do not apply to a judgment rendered against a party for moneys or property misappropriated by an agent in the discharge of a trust bestowed on him by his principal. Such a debt is held to have been incurred by the agent as a fiduciary.
    In such cases, damages will be allowed to the seizing creditor whose judgment has been enjoined in the enforcement of a homestead exemption.
    APPEAL from the Eighteenth District Court, Parish of Tangipahoa. Thompson, J. c<

      Horace É. Upton for Plaintiff and Appellee.

      Marr & Reid for Defendant and Appellant.
   The opinion of the Court was delivered by

Pocutó, J.

Plaintiff has enjoined the execution of a judgment of $3070 49, rendered against him by this Court, in favor of the defendant, Halliday (36 Ann. 238), on the ground that the property levied upon is exempt from seizure, as his homestead.

The grounds of resistance urged by defendants are:

1. That the debt sought to be enforced was contracted by him as a fiduciary.

2. That plaintiff’s homestead declaration was registered after the debt sought to be enforced had been contracted.

The case was tried by a jury, who found in favor of plaintiff, and Defendant Halliday appeals.

I.

The main contention in the case of Halliday vs. Bridewell, pf which the present suit is a sequel, was the definition of the true relations between the parties. And it was concluded by this Court that those relations were those of principal and agent. Hence, Bridewell was condemned as agent to pay to his principal the amount which the record disclosed lie had taken of Halliday’s property and funds intrusted to his control and administration.

Now, in Article 220 of the Constitution, which treats of homesteads and exemptions, it is provided that such exemptions shall not apply to certain cases, and among others: “ For liabilities incurred by any public officer or fiduciary, or any attorney at law, for money collected or received on deposit.”

The question which we are to decide on this point is, therefore, whether the debt which is settled by our judgment was incurred as a fiduciary by Bridewell. He contends that the true meaning of the language used in the Constitution is to embrace in its scope a public fiduciary only, and that it must be held to exclude an ordinary agent.

We cannot adopt his construction. In our opinion, it was the clear intention of the Convention to create three distinct classes of exceptions; and there is no more reason to read the word “public” before the word “fiduciary,” than there would be to read the same word before “ any attorney at law.” It would destroy the sense in the one case as clearly as it would in the other.

The question therefore recurs: whether Bridewell, who has been judicially ascertained to have been the agent of Halliday, intrusted with the exclusive control and management of valuable property and largely important commercial dealings, must be legally treated to have acted in a fiduciary capacity.

The essence of his contract with Halliday was trust and confidence; and it is undisputed that these are the main elements of a contract which creates the relations of a fiduciary.

“It is held to import trust, confidence; it refers to the integrity, the fidelity of the party, rather than his credit or ability; and contemplates good faith, rather than legal obligation.” Abbott’s Law Dictionary, verbo Fiduciary.

In the case of McDonough vs. Delassus, 10 Rob. 481, this Court, treating of a kindred subject, said: “We are not prepared to establish, as a general rule, that the relation of principal and agent is that of creditor and debtor as soon as the latter receives money or property for the former. We regard it as something more: it is a trust; and the receipt of the money or property does not give the agent a title to it, which would bo the case if ho be regarded as a debtor alone.”

This is precisely the legal meaning and effect of our judgment against Bridewell. We found that in flagrant violation of the trust reposed in him by his principal, he had illegally appropriated and used the funds of Ms principal realized by the sale of the latter’s merchandise or property, and we therefore held him liable for the restitution of the funds thus used and malappropriated. It is therefore apparent that the foundation of his liability was the abused trust which had' been conferred on him; and it is equally clear, therefore, that the debt which resulted therefrom has been incurred by Bridewell as a fiduciary. We therefore conclude that the homestead exemption created under the Constitution of 1879 cannot, and does not, apply to this case, and that the verdict of the jury is manifestly erroneous.

In announcing these conclusions we are aware, and we do not lose sight, of numerous adjudications of the courts of the country in which it has been held that, under the particular phraseology of the last bankrupt laws of Congress, the exceptions made against the discharge of fiduciaries did not include agents in their ordinary responsibility to their principals. But we understand that our disposition of this point, arising under language materially different as found in our Constitution, does not in the least antagonize adjudications which are entitled to our respect, and which will in proper cases command our acquiescence.

Under the conclusions which we have reached on the first point raised by the defendant, we pretermit a discussion of the second point which is thus stripped of all importance in the case.

We note appellant’s prayer for damages under Article 304, Code of Practice, and we think that they are entitled to that remedy.

It is therefore ordered, adjudged and decreed that the verdict of the jury and the judgment rendered thereon be annulled, avoided and set aside; and that there be judgment in favor of the defendant, Halliday, dissolving the injunction herein issued, rejecting Plaintiff Bridewell’s claim of a homestead, and dismissing his action at his costs in both courts.

And it is further ordered, adjudged and decreed that said Bridewell and his surety on the injunction bond herein be condemned jointly and in solido to pay interests of ten per cent per annum on the amount of the judgment enjoined, and in the further sum of one hundred and fifty dollars as special damages for attorney’s fees.


author: Todd, J. Bermudez, C. J.

text:
    No. 9426.
    B. J. Sage vs. Board of Liquidation.
    Act 16, of tlie General Assembly of 1864, directed til© issue of $10,000,000 of State bonds, and required tbe Governor to sell or exchange the bonds for treasury notes, Confederate or State.

      A number of these bonds were given in exchange for sugar, to meet the wants and exigencies of the State government. JBCeld, that such disposition of them violated the mandatory requirement of the law, and the holder of them acquired thereby no right or title to them as would enable him to have them funded and exchanged for consolidated bonds under the funding act of 1874.
    The presumption in favor of oficial acts, that they are rightly done, is not a presumption ju¡ris et de jure, but one open to contrary proof.
    APPEAL from the Civil District Court for the Parish of Orleans. Lazarus, J.

      B. J. 8age and W. F. & D. G. Mellen for Plaintiff and Appellant.

      M. J. Gunnmgham, Attorney General, for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

This is a suit for the funding and exchange of five bonds of $1000 each, dated August 1,1864, payable in twenty-five years from their date and bearing 6 per cent interest, payable semi-annually.

These bonds were issued under the authority of Act 16 of 1864> entitled “An act to authorize the sale of bonds for the relief of the treasury, and final liquidation of the principal and interest thereof.”

Among its provisions are the following:

“Section 1. That the Governor be, and he is hereby authorized to cause to be engraved or printed bonds, to an amount of ten millions of dollars.

“Sec. 4. That said bonds shall be sold by the Governor for the benefit of the State, or shall be exchanged for any of the treasury notes, Confederate or State; but shall not be sold or exchanged for less than par, nor in greater amounts than the exigencies of the treasury may require.

“Sec. 6. That so fast as the Governor shall sell or exchange the bonds, and receive money, Confederate or State treasury notes therefor, he shall cause to be cancelled an equal amount of State treasury notes then in the treasury, equal to the amount realized for the sale or exchange of the said bonds, and shall cause the proper entries to be made in the Treasurer’s and Auditor’s books.”

These bonds were first delivered to Gen. Montfort Wells, the husband and agent of Mrs. J. D. Wells, a short time after their date, and were subsequently assigned to the plaintiff herein.

The plaintiff alleges, substantially, that the bonds are legal and valid obligations of the State; that they were issued in strict conformity to law; that the original holder acquired them for a valid consideration; that they were not issued in violation of the State or Federal Constitution and are in proper form; and in short that they come within all the conditions entitling them to be funded and exchanged for consolidated bonds, as provided by Act 3 of 1874.

The answer of the defendant board is a general denial, and also special denials, which, together, fully put at issue the validity of the bonds and the right of the holder to have them funded as representing a valid debt of the State.

There are several interesting questions discussed by the able counsel of the parties litigant, such for instance as relates to the power of the State, at the time a member of a confederacy at war with the United States, to issue the bonds; whether the bonds were issued for purposes hostile to th'e government of the United States, or to aid in the prosecution of the war against its authority; and whether the act under which they were issued was violative of the State and Federal Constitutions. These and like grave questions we find it unnecessary to determine.

The second section of the act, as above quoted, imperatively required that the bonds in question should be sold by the Governor for the benefit of the State, or exchanged for treasury notes—State or Confederate.

It is plain that the Governor, as the chief executive officer of the State, had no power whatever to deal with these bonds or to dispose of them, except in the precise manner and for the distinct purpose pointed out by the law; and that any act of his in contravention of the law in this regard would be void and could not confer on any person or any holder of the bonds the right to recover on them or enforce their liquidation or payment.

This proposition we do not understand to be controverted by the plaintiff, but virtually admitted as correct, by his contention that the bonds were sold by the Governor in compliance with the terms of the act.

Were they thus sold or exchanged for the currency named as required by the act?

It is certain that a large quantity of sugar was procured for the use of the State government by means of these bonds, to be applied to the relief of the people of the State. How was it procured? The plaintiff in his petition alleges, substantially, that it was procured by an exchange of the bonds therefor. He produces three witnesses—Gen. Montfort Wells, to whom the bonds were delivered and from whom the sugar was obtained; E. W. Halsey, the private secretary of Gov. Allen, and James C. Wise, the then State quartermaster—who were intimately acquainted with the entire business connected with the transaction. They all concur in the fact that the sugar was obtained in exchange for the bonds.

We quote from the testimony of Gen. Wells on this point:

“.Tn the year 1864, agents representing Henry W. Allen, Governor of the State of Louisiana, were desirous of purchasing sugar and cotton; they offered Confederate money in payment therefor; as husband and agent of Mrs. Jeannette Wells, I refused to take-Confederate money. * * * * When I refused to take Confederate money for sugar, he proposed to give me State bonds that were authorized by the act of the Legislature, No. 16 of 1864. . * * * * I agreed to make the exchange of sugar for these bonds; the exchange was made. * * * * The sugar * * was delivered to Isaac Levy, at Alexandria; lie then delivered to me the bonds * * * * I took the bonds in my name; the property exchanged, being sugar, was raised on the plantation belonging to my wife.”

Against his own judicial admissions that the bonds were thus exchanged, and the positive testimony of his own witnesses to the same effect, the plaintiff invokes the legal presumption that the officer charged by law with the sale of these bonds discharged his duty, and therefore the bonds were sold and not exchanged. He further cites for the same purpose and as confirmatory of his presumption, an entry in the “Receipt Ledger” of the State Auditor’s office, of 1860 to 1864, as follows:

“February 2, 1865.

“ Order No. 16, to Montfort Wells, for purchase of 184 six per cent bonds of $1000 each, issued under Act No. 16 of 1864.”

Also another entry in same' book, showing the payment at the same time of the semi-annual interest on the bonds.

Waiving the question whether the plaintiff could thus break down and destroy the effect of his own judicial admissions and the testimony of his own witnesses confirming them, even under an allegation of error, it is enough to say that he has not succeeded in doing so.

The presumption in favor of the acts of an officer done within the scope of his authority is not a conclusive presumption; it prevails only till the contiary be shown. This is elementary, and authorities need not be cited in support of it.

Here the contrary proof is overwhelming, being the testimony of the party to the alleged sale of the bonds, and of one or more who were charged with and acted in the matter of their negotiations. Nor can the entries referred to be regarded as conclusive in the face of this proof. As to the first entry, the officer making it may have used the word “purchase” in ignorance or disregard of the technical difference between a sale and an exchange. One unacquainted with the legal distinction between these two kinds of contracts may have thought the sugar acquired by exchange of the bonds was purchased by the bonds.

The inference from the entry that there was a sale, rests alone on the word “purchase” therein, and really amounts to nothing against the testimony of the alleged purchaser, showing conclusively that he did not purchase, but exchanged the property for the bonds, fully supported as is his testimony by that of other witnesses thoroughly cognizant of the fact.

Besides, we cannot possibly believe from the evidence that Wells, to whom the bonds were delivered, first paid Confederate money or State notes for the bonds and then returned the money or notes and delivered the sugar in lieu thereof. '

Nor does the payment of interest on the bonds strengthen the plaintiff’s right or title thereto. If they were acquired by the first holder in contravention of law, a subsequent recognition of the holder’s right thereto by auv of the executive officers of the State Grovernment, to be inferred from a payment on the bonds, could not cure the radical defect of title, nor bind the State or its officers in any department of its government.

For these reasons, the judgment of the lower court is affirmed with costs.

On Application for Rehearing.

Bermudez, C. J.

The judgment rendered,’ both below and here, simply declares that bonds issued under Act 16 of 1864, and which were not sold or exchanged for Confederate or State treasury notes, but were given for State necessities, are not fundable under Act 3 of 1874.

The plaintiff in his application for a rehearing, expresses an apprehension that it may be claimed, that this judgment adjudicates adversely to any right which he may have to recover payment for the sugar sold to or used by the State.

The judgment passes on no such question which was not and could not be presented.

We find no error in that judgment.

Rehearing refused.-


author: Manning, J.

text:
    No. 9334.
    D. M. Giddens, Executor vs. Madison Mobley et als.
    The good faith necessary to enable a claimant under a tax title to plead proscription is simply that he shall not have acquired the property mala fide. Where the tax-deed is valid in form and there is no defect stumped on its face and the sale has been made by the proper officer, the purchaser is a possessor in good faith.
    A possessor and owner cannot be deprived of Ms right to plead prescription because he might by inquiry and careful examination have discovered that his vendor had no titlo. The constitutional direction that all deeds from tax-collectors for land sold by thorn for taxes shall be received as prima facie valid lias placed tax-titles on the same footing as other titles under judicial sales and subjected them to tho same rules as sheriffs’ deed’s.
    Before that constitutional change was made, an assessment oould not bo presumed but must be proved. By virtue of that change it is presumed without proof and prima facie the tax deed is valid. If that doed is valid in form and the defect is want of airhority or right in the officer to make it, and not in the manner of making it, the knowledge that the officer had no right to make the sale is not brought home to the purchaser.
    No symbolic ceremony such as lively of seizin at common law is necessary to constitute a taking possession of land. The authentic Act of sale of land dcsoiibed by location, extent, etc.. is a taking possession of it and a notice to the world that he who thus claims it claims as owner. Especially is this trae of land in a state of nature with forest unreclaimed.
    Tho purchaser at a tax-sale iu good faith who has a titlo from the competent and proper officer valid in form, with no defect stamped upon it and patent, and who has possessed by himself, or by himself and his authors ten years, has acquired an indefeasible title and may successfully defeat the claim of the original owners thereto.
    APPEAL from the Tenth District Court, Parish of Red River. Logan, J.

      M. 8. Jones, J. 8. Poach and Kemiard, Howe <& Prentiss for Plaintiffs and Appellants.

      L. B. WatMns, 8. A. Hale and J. F. Pierson for Defendants and Appellees.
   The opinion of the Court was delivered by

Manning, J.

The object of this suit is the recovery of a tract of land of two thousand and twenty acres in the parish of Red River. The defendants claim under a tax-title executed to their vendors and among numerous defences plead the prescription of ten years.

The land belonged to one Goldsby who lived and died in Alabama and to one Bradley who lived and died in Texas, and they held it in indivisión. Their successions were settled in those States respectively. Giddens had no connection with these, but on filing these wills here obtained the appointmen r. of dative testamentary executor of each of them, in which Capacities he brings this suit. His opening' the successions here seems to have been for the sole purpose of suing for this property. There are no debts nor legacies nor charges upon this land, and no need of or excuse for an administration here unless one was necessary to recover this property. Broussard v. Ditch, 30 Ann. 1109. The suit was filed July 5,1881.

An exception to the plaintiff’s capacity to sue was promptly interposed on the ground that there being no debts, legacies, or charges, this land had devolved to the heirs who alone could sue for it. The exception should have been sustained as was that in Hart v. Bowie, 34 Ann. 323, but the lower court overruled it and permitted the petition to be amended by making the heirs parties, which however was not done until July 1882. This was a grace to them with which we do not find occasion to interfere.

The land was all forest when sold for taxes in 1870. Seven persons bought, each a separate part or parts, the sale being in parcels of forty acres each. These sold to the defendants over twenty in number, and an exception was made to the joinder of all of them in one suit when each owns a separate tract in severalty, which was overruled. Some of these had mortgaged their lands and the mortgage had been foreclosed and the land bought by others. John Chaffe & Sons are claimants of a part of this land under title thus acquired and they intervened. The several parcels of land thus owned have been cleared, houses have been built, fences made, and a number of farms now appear where an unreclaimed forest was at the time of the sale. Yet rents and revenues are claimed for the entire period of occupancy.

There cannot be any doubt that the defendants possessed in good faith. The Code defines such possessor to be one who has just reason to believe himself the master of the thing which he possesses although he may 'not bo in fact, Rev. Civ. Code, art. 3451, and good faith purifies a title of its defects and causes the possessor under a just title to be preferred to the true proprietor who has remained so long silent and neglectful of his rights. M’Closkey v. Webb, 4 Rob. 205. Blackwell says the statute of limitations when pleaded to protect tax-titles should be construed liberally because it is intended for repose, and that to enable one to prescribe under such title the good faith requisite simply means that the occupant in acquiring it shall not have acted mala fide. He must have entered under a claim of right. Tax Titles, 671. And the Supreme Court of the U. S. held that it was only necessary to assure to one claiming under a tax-title the protection of the statute of limitations to shew that he and those under whom ho claimed held under a deed from the collector of revenue, and that he was not hound to know that all the requirements of the law had been complied with in order to make his deed a valid and indefeasible conveyance of title. Pillon v. Roberts, 13 How. 472. We said lately in Hickman v. Dawson, 35 Ann. 1086, that the tax-sale having been made by competent authority and the defects or elements of nullity charged against the tax-deed not being patent on its face, the purchaser at the sale was a possessor in good faith, and this is in line with previous decisions. In Eldridge v. Tibbets, 5 Ann. 380 the sheriff had no authority to make the tax-sale but he did make it and executed a formal deed to the purchaser and the purchaser sold to another, and this other was declared to be a possessor in good faith.

The deed of the tax-collector is valid in form. It contains all the usual recitals including that the property had been assessed, and that the taxes for certain years had not been paid, and is in full compliance with the forms prescribed for tax-sales. There is no defect stamped on the face of the deed, and that is what this court said was meant by valid form in a deed which' would enable a holder under it to prescribe. Carrol v. Cabaret, 7 Mart 406. A possessor cannot be deprived of the right of pleading prescription because he might by inquiry and careful examination discover that his vendor has no title. Frique v. Hopkins, 4 Mart. N. S. 224. Where the deed is perfect in form and the defect is want of right or authority in the officer to make it and not in the manner of making it, the knowledge that the officer had no right to make the sale is not brought home to the buyer. Dufour v. Camfranc, 11 Mart. 715, so in Robinson v. Brown, 14 Atm. 985 where the purchase was at an administrator’s sale under a commission that recited a decree for the sale, but in fact there was no decree. Knowledge of the want of right in the officer to sell was held not brought home to the purchaser. Now as the assessment is likened to a judgment or decree, a deed that recites an assessment, although that recital is not by any means full proof that an asesssment has been made, yet the holder under it is enabled to plead prescription. The deed is valid in form and knowledge of the want of assessment is not brought home to the purchaser. :

The Constitution of 1868, under which this sale was made, directed that all deeds from tax-collectors shall be received as prima facie valid sales, so that tax-titles were placed on the same footing as other judicial sales and were subject to the same rules as sheriff’s deeds. Jury v. Alison, 30 Ann. 1235, Formerly the assessment could not be presumed but must be proved. Under that constitutional provision it is presumed without proof and the tax-deed is prima facie valid. Lannes v. Work. Bank, 29 Ann. 115; O’Hern v. Hibernia Ins. Co., 30 Ann. 960; Renshaw v. Imboden, 31 Ann. 661; N. O. Asso. v. Labranche, Ibid. 840; Ludeling v. Maguire, 35 Ann. 893.

The tax-deed bears date July 26, 1870. Our law considers the delivery of immovables as always accompanying the public Act that transfers them. Rev. Civ. Code, art. 2479. If actual corporeal possession of wild timbered land in unreclaimed forest be necessary in order to enable one to acquire it by prescription, then it could never be so acquired unless we should invent some symbolic ceremony such as livery of seizin at common law. The public authentic Act in which the property is described by quantity, location, etc. duly recorded is a taking possession and notice to the world that he who thus appears as the owner claims it as such. The plaintiffs are estopped from contesting this fact of possession because they allege that the defendants have possessed since July 26, 1870 and claim rent from that day. More than ten years elapsed from that day to the institution of this suit on July 5,1881.

As we think the plea of prescription should have been sustained it becomes unnecessary to examine or pass upon the demand of the intervenors which was made for the contingency of the defendants’ failure to establish their title.

It is therefore ordered and decreed that the judgment of the lower court is avoided and reversed, and that there be judgment in favor of the defdndants sustaining their plea of prescription and quieting them in the possession and ownership of the land and against the plaintiffs for their costs in both courts. It is further decreed that the interventions be dismissed at the cost of the intervenors without prejudice to any rights they may have as set out in their petition.

On Application por. Rehearing.

We are informed for the first time now that in this transcript of over a thousand pages the answer of Larkin Edwards, one of the defendants, is not to be found and that in fact he filed none and therefore no plea has been filed by him;—

That among the twenty-odd defendants Mrs. Sisso, H. C. Myers, and J. P. Broadwall acquiesce in the judgment because they have not answered the appeal, and Madison Mobley and T. H. Hamilton have answered the appeal and expressly acquiesced in the judgment below;—

That Sam and Marie White have not pleaded prescription and the court cannot supply it.

An examination of the bulky volume discloses on its 711th page that Sam and Marie White specially pleaded the prescription of ten years.

Messieurs L. B. Watkins and S. A. Hull filed in this court an answer to the appeal “for all the defendants and all the intervenors,” and in a letter produced here and filed in the application for rehearing, Mr. Watkins qualifies this by stating that he and Mr. Hull represented all the defendants except Mrs. Sisso and Mobley, and therefore we shall consider their answer, to the appeal as on behalf all except those two.

Mobley had pleaded ten years’ prescription but in this court he and Hamilton filed an answer praying the affirmance of the judgment below. TJje reason for this change of front is apparent. Mobley had divested himself of his part of the land by selling it to others and had received the price. His vendors sold to others and they had mortgaged it and the intervenors John Chaffe & Sons had become owners of the mortgage, had foreclosed it and bought the property. They claim title to the land once owned by Mobley. The answer filed, here by Mobley compels us to reopen the case as to him, but obviously the intervenors are interested in contesting the correctness of the judgment as to him and we shall therefore reopen it as to them.

It is also said that the lands claimed by B. F. Jones are not all included in the tax-deed. As the plea of prescription applies alone to the land conveyed in the tax-deed, he may be included in the rehearing.

We have no change to make in the legal principle enunciated in the opinion and shall refuse a rehearing as to all the defendants except those specially mentioned, and therefore

It is'ordered that a rehearing is granted to the plaintiffs quoad the defendants Larkin Edwards, Mrs. Sisso, Madison Mobley, T. H. Hamilton and B. F. Jones, and is refused as to all the other defendants. A rehearing is granted the intervenors of our own motion.


author: Fenner, J.

text:
    No. 9419.
    The State of Louisiana vs. Thomas Johnson.
    The common law form for the oath administered to a jury in criminal cases was legislated into the State "by the Act of 1805, and may, without error, be adhered to until changed by legislative direction.
    The Article 168 of the present Constitution only gives constitutional sanction to what was substantially the law of this State prior thereto, and affords no reason, not previously existing, for changing the form of the oath.

      PPEAL from the Fifth District Court, Parish of Caddo. Hieles, J.

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

      S. P. Watts for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The defendant excepted to the form of the oath administered to the jury, which was the common law form to give a true verdict “according to the evidence.” The defendant asked that the form should be “according to the Icmo and the evidence.”

The oath administered -was that used at common law, and was imported into this State by virtue of the Act of 1805, which provided that “the forms of indictment, the method of trial, the rules of evidence, and all other proceedings whatsoever in the prosecution of the crimes, offenses and misdemeanors, changing what ought to be changed, shall be according to the common law, unless otherwise provided.”

Since this act, we are not advised that any other form of oath has ever been employed in criminal trials in this State, and as it rests on the above legislative sanction, we see not why it should be changed without legislative direction.

Such direction cannot be implied from Art. J 68 of the present Constitution, which provides that “the jury in all criminal cases shall be judges of the law and of the facts on the question of guilt or innocence, having been charged as to the law applicable to the case by the presiding judge.”

This article enunciates no new principle of law, but merely gives constitutional sanction to what has always been the law of Louisiana. In a case decided in 1856, this Court said: “In determining the guilt or innocence of the party indicted, the jury are the judges of the law as well as of the facts; but not in exactly the same sense. Under our statute they are exclusive judges of the facts; they are, subordinately, judges of the law, because the statute proceeds upon the assumption that they are not familiarly conversant with it, and therefore requires the presiding judge to 'give them a knowledge of the law applicable to the case.’ They have power to decide against the judge’s opinion of the law,” etc. State vs. Ballerio, 11 Ann. 206; State vs. Scott, Id. 429.

The Constitution, therefore, furnishes no reason for departing from the common law form of oath which has always, heretofore, been followed; and until the Legislature sees fit to change it, there is no error in adhering to it.

Judgment affirmed.


author: Bermudez, C. J. Fenner, J.

text:
    No. 9412.
    New Orleans Cotton Exchange vs. Board of Assessors.
    The assessment of the property of a tax payer on the rolls and the modes used in fixing its value, are presumed to be oorreet until he establishes the reverse.
    The income derived is not always the proper criterion.
    That rule surely does not apply to exceptional property, which is not designed to yield a rental or commercial purposes, but destined wholly, or mainly, for personal use, benefit and gratification.
    Heal estate subjected to a servitude does not cease to belong to the grantor who continues to own the same and who can dispose of the same as he may please, provided he does not thereby interfere with the enj oyinent of the servitude by the creditor thereof.
    APPEAL from tlie Civil' District Court for the Parish of Orleans. RigUtor, J.

      Bayne & Denegre for Plaintiff and Appellant.

      W. R. Rogers, City Attorney, and Wynne Rogers, Assistant City Attorney, for Defendant and Appellee,
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff appeals from a judgment refusing to reduce the assessment of its real estate from $310,000 to $200,000, which is alleged to be its cash value and at which it should have been listed under Sec. 25 of Act 96 of 1882.

The assessment is of the lot and building known as the Cotton Exchange,” in this city, and of a strip of ground adjoining it.

The witnesses heard are auctioneers, the Treasurer and an employee of the company.

Their testimony is conjectural. They express the opinion that the main property is not worth more than two hundred thousand dollars, regardless of the cost price of both, within a few years, which nears $400,000.

In arriving at that conclusion, they say that they are guided by the rule generally adopted and which is: to ascertain the rental or income of property and then to multiply it by ten; that as the property in question, at best, could yield $20,000 annually, it should not be assessed at more than ten times that amount.

The burden of proving that it is excessive was upon the plaintiff.

It is settled that the assessment of the property of a tax payer on the rolls and the modes used in fixing its value, are presumed to be correct until he proves the contrary. New Orleans vs. Bank, 31 Ann. 826; also 29 Ann. 851, affirmed in 99 U. S., p. 97.

The assessors, says Judge Burroughs (On Taxation), act judicially in making an assessment. They proceed upon inquiry, and hear and determine from all the information before them of the value of the property.

After reviewing the legislation of a number of sister States on the subject of the valuation of property, he concludes, as the result of his studies, that the substance of the provisions of the law is the same in each State, the assessment being the value of the land, looking to all the circumstances of its surroundings or what may be regarded as the cash market value, and that the income derived is not the proper criterion in ascertaining its value, (pp. 227-8, ed. 1877.)

If it were true that these conclusions do not rest on solid reasoning and authority, and that'the rule which‘the plaintiff has strenuously endeavored to lay down is correct and has been established, it could be invoked only as applicable to the general class of ordinary property coming within its purview and which is susceptible of bringing revenue, and could not be applied to exceptional property, beyond its purport, which is not designed to yield a rental or income, or commercial purposes, but destined, wholly or mainly, for personal use, benefit and gratification.

In such cases the correct rule would seem to be to assess at the price invested, where the purchase or improvement is of a recent date, and it is not shown that the property has since deteriorated in value, for some cause or other.

No evidence has been adduced to show that the property in this case has declined since the purchase of the lot and erection of the building upon it.

As that circumstance would have been an important factor, it is infer-able, to some reasonable extent, that the property, far from diminishing, has become more valuable.

The “ Cotton Exchange” was constructed for the exclusive benefit of its members, although certain parts of the building have been rented out.

That building consists of a splendid edifice, unusually large, imposing in appearance, ornamented inside and outside by gorgeous fresco paintings and decorations, and admirable artistic statuary, lofty and sumptuous in all its parts.

It is immaterial whether the large sums of money which the lot and building have cost were or not invested for profit. It is enough that the property exists and is not exempt from taxation to justify its assessment at its value, all surrounding circumstances considered.

We notice in the transcript a statement of expenditure items for running the elevator, for the insurance premium and the taxes, but we fail to perceive in it any account of the revenues of the property beyond the actual or supposed rental thereof. Had that revenue, in addition to the balance struck ($7785) been stated, it is not impossible that it would have shown that the $390,000, cost price, have not been injudiciously invested.

The evidence shows that the lot has cost $74,000, that the magnificent structure upon it was put up for $300,000 and is now insured for $175,000, which is deemed sufficient to repair any damage to it by fire. Clearly, the assessment of both the lot and the building at $300,000, which is one-iourth less than cost of lot and building, should not be disturbed as unreasonable.

There is further complaint of the assessment of a strip of land adjoining the Exchange, on the ground that it is an open thoroughfare in constant and general use by the public, and therefore no more liable to taxation than a street can be. It does not seem to be denied that tho strip, in itself, is worth the amount at which it was assessed.

This strip has not ceased to belong to tho plaintiff, by which it was. burdened with a “perpetual servitude” in favor of the adjoining or contiguous estate, in the compromise of a pending suit between the owners. It never was dedicated to public use and can be alienated or encumbered by the plaintiff notwithstanding the servitude, provided it does not thereby interfere with the enjoyment of the conceded servitude. E. C. C. 489, 492, 658, 605, 779; C. N. 544, 621, 701.

Confronted with the facts of the original and recent cost of the lot and building, of the assessment thereof by the sworn and impartial officers of the law, specially constituted for the purpose, of the actual unquestionable intrinsic value of the property, we cannot arrive at the conclusion that the district court has erred in its appreciation of the facts and application of the law.

It is therefore ordered and decreed that the judgment appealed from be affirmed, with costs.

Concurring Opinion.

Fenner, J.

Nothing is better settled than that the valuation of property for taxation by official assessors is in the nature of a judicial act, protected by all presumptions in favor of its fairness and correctness, and subject to reduction only on clear, affirmative proof that it is excessive.

Tbe assessors have valued tbe property at $310,000, wbicli is supported by proof that its recent actual cost to the owner was about $395,000, and that the owner insures the building alone at $175,000, which, considering the indestructible character of the construction, indicates a valuation which, added to the value of the land, would not fall short of the amount fixed by the assessors.

There is no proof that the cost was particularly extravagant, at least to an extent affecting this assessment; or that the property has since deteriorated in value; or that the owner would sell it for an amount less than its cost.'

The only evidence opposed by the owner is the testimony of certain experts in real estate, who adopt a rule of valuation based upon a relation to the rental value of the property, and who, on that basis, estimate it at not exceeding $200,000.

If we were to accept this rule and carry it to its legitimate results, there seems no good reason why the assessment should not be reduced to $125,000 as readily as to $200,000.

The rule is just enough when applied to ordiuary commercial property, built and adapted for common and ordinary commercial purposes and with a view to occupation or rental for such purposes.

But so far as this property is concerned, it was not constructed for such purposes. It was built for the peculiar purpose of a cotton exchange, an unique institution, in its nature exclusive of the existence of any similar one.

It chances that the upper portions of the building are adapted to renting purposes. But that is a mere accident. Suppose it had pleased the projectors to throw the entire interior into a vast and lofty rotunda for its own exclusive occupancy. This might have been even more costly; yet under the rule adopted by the experts in this case, its rental value would have been vastly reduced and we might have been called on to reduce the assessment in proportion.

The most palatial residence in the city, if thrown upon the market for rent, might not bring more than $1800 or $2000 a year. Should it, therefore, bo assessed at only $18,000 or $20,000, though its recent cost may have been $50,000 or $75,0009

Obviously the rule of the experts is not applicable to such cases.

There exists, in fact, no rigid rules for the valuation of property, which is affected by a multitude of circumstances which no rule could foresee or provide for.

The assessors must consider all these circumstances and elements oí value, and must exercise a prudent discretion in reaching conclusions.

Where it is shown that their assessments are manifestly excessive, they will be reduced; but where the judicial mind is left in doubt, on the evidence, whether such excess exists, I think it a sound rule to leave the assessment undisturbed.

In this case, the action of the assessors has been approved by the judge of the district court, as well, as by this Court.

1, therefore, concur in the decree rendered herein.

Manning, J., concurs in this opinion.


author: Poché, J.

text:
    No. 9369.
    Leeds & Co. vs. Peter Jones.
    On appeal, a judgment will not be reversed or annulled in favor of a party wlio has nofc ip * pealed therefrom, or prayed for an annulment.
    On a rule by a judgment creditor it is competent for the court to order the cancellation oí a minor’s general mortgage inscribed against his tutor, when it is shown that such mortgage had been legally and properly substituted by a special mortgage by the natural tutor, in a sum accruing to the minor after a liquidation of the community.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      B. B. Formcm for Plaintiffs and Appellees.

      Gibson, Ball & Montgomery for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff, a judgment creditor of the defendant, having seized the latter’s immovable property, took a rule against him as tutor of his minor children, and against certain creditors, for the cancellation of a mortgage of $3212, inscribéd in favor of said minors, and of a mortgage in favor of one John J. Ward in the sum of $6000.

Defendant appeals from a judgment ordering that botli of the mortgages complained of be cancelled.

On trial it appeared that Ward claimed no interest in the mortgage inscribed in his favor, and from the testimony of the defendant it appears that the note and mortgage of $6000 are held by the defendant’s son to secure an indebtedness of some four hundred dollars.

The alleged holder of the mortgage, although represented in the district court by counsel, as the record shows, has not appealed from the judgment cancelling Ms mortgage; and in this Court liis rights are championed by the defendant, his father and his alleged debtor.

The latter has no authority in law to thus stand in judgment for his creditor, whose connection with the mortgage was disclosed by the debtor himself in his testimony.

As John Thomas Jones, the alleged creditor, has not appealed, the judgment cannot be amended as to Mm. Hence we cannot review that part of the judgment.

As to the minors’ mortgage, the record shows that under orders of a competent court, under the advice of a family meeting, the general mortgage, originally in the sum of $3212, .was reduced under an adjudication, of the community property to the surviving spouse to $301 43, and was substituted by a special mortgage in the latter amount.

We have critically examined all the proceedings which led to that result and we find them regular and correct.

There is no force in appellant’s argument that the general mortgage inscribed against the tutor in favor of his minor children cannot be reduced or cancelled during the minority or before a final settlement by the tutor.

The very law which authorizes the substitution of a special, in lieu of a general, mortgage pending the minority, affords an easy answer to such an argument. Appellant’s argument also antagonizes the provisions of our law which authorize the liquidation of the community and the adjudication of its property to the surviving spouse.

The judgment does not interfere with the minors’ rights, under the special mortgage; it merely orders the cancellation of the general mortgage. That order flows as a logical as well as a legal conclusion from the order of the probate court accepting the special mortgage in the sum accruing to the minors after the liquidation of the community.

We discover no error in the conclusions reached by the district judge.

Judgment affirmed.

Rehearing refused.


author: Todd, J. Bermudez, C. J. Pociní, J. Bermudez, C. J. Poché, J.

text:
    No. 9317.
    Succession of L. C. Gohs.—Oppositions to Account of Executor.
    This Court lias no jurisdiction over an opposition to an executor’s account when the amount claimed is less than $2000, and tlie fund to be distributed does not exceed that amount; and on its own motion must dismiss the appeal.
    A creditor has no right to oppose each and every item, on a tableau of distribution, in a thoroughly solvent succession, where, after an amount amply sufficient to meet his claim has been retained, the payment of such items cannot possibly affect or injure him.

      Such an opposition, for want of interest in tbe opponent, is frivolous on its face and cannot arrest the distribution, except so far as may be necessary to provide for payment of the claim, if ultimately allowed.
    Where the fund thus arrested docs not exceed $2000, an appeal does not lie from the judgment on the opposition to this Court, which is devoid of jurisdiction.
    A PPEAL from the Civil District Court for the Parish of Orleans. jTJl. Rightor, J.

      J. I). Goleman and J. P. Hornor and F. W. Balcer for Opponents and Appellants.

      B. R. Forman for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

Widow Louisa Fritz and J. N. Folwell, by separate oppositions to the final account of the executor of Gohs’ succession, seek to be recognized as creditors respectively of said succession—one for $1095, and the other for $250 ; and appeal from a judgment rejecting their demands.

The amount in the hands of the executor remaining for distribution, is $1345, the rest having been previously distributed under a prior judgment, homologating the executor’s account wherein not opposed, and which judgment has become final, no appeal from the same having been taken.

Therefore, whether we consider the amount of the demands sought to be enforced or the amount of the funds for distribution, it is plain that this Court is without jurisdiction.

The case comes clearly within those of Succession of Duran, 34 Ann. 585, and Succession of McDowell, 35 Ann. 1025.

The appeal is, therefore, dismissed.

Concurring Opinion.

Bermudez, C. J.

It is not denied that, if a case be appealable at the date of the judgment, its character, in that respect, cannot be altered after judgment, so as to deprive the aggrieved party of the right of appeal, but it is undeniable that, if there be only one judgment and it is divisible, or two judgments which are independent, and the aggrieved party appeals from a part of the judgment, or from that which passes upon an appealable demand, thus acquiescing in the part of judgment or other judgment unappealed from, this Court must proprio motu dismiss the appeal, if it be from an unappealable demand.

In the present case, two judgments were rendered: one homologating the account, as far as not opposed, virtually ordering the distributton of a sum exceeding’ $2000; and another judgment on the oppositions, which together call for less than that sum; which judgment directs the distribution of a sum less that $2000, retained to meet the oppositions.

The appeal is taken not from the first distributing more than $2000, but explicitly from the second judgment, which directs a distribution of less than that sum.

The rulings in the Successions of Duran and McDowell, 34 and 35 Ann., far from having been .deviated from, have been faithfully adhered to.

It is unnecessary now to express any opinion on the right of appeal of an opponent who would claim less than $2000 and, with just cause, oppose an account proposing to distribute a fund exceeding that amount. The question is not presented and need not be determined. It is sufficient that the fund ordered by the second judgment, which is that appealed from, to be distributed, does not exceed $2000, to justify a dismissaljM-opno motu.

I, therefore, concur.

Dissenting Opinion.

Pociní, J.

I cannot concur in the dismissal of the appeal in this case.

The Constitution (Art. 81) vests this Court with jurisdiction over all cases in which the fund to be distributed, whatever he the amount therein claimed, shall exceed two thousand dollars.

From the final account of administration presented by the executor, it appears that the fund to be distributed amounted to $6629.

It has been so often said by this Court, even as at present composed, thatitmaybe considered as elementary, that the jurisdiction of the appellate tribunal must bo tested exclusively under the showing made by the pleadings, and that it cannot be affected by the judgment rendered or the judgment appealed from.

Hence, in the cases of the State ex rel Railroad Company vs. Judge, 34 Ann. 864 and 1117, it was twice held by this Court, that in a case where our jurisdiction attached under the pleadings, it could not be affected by a subsequent proceeding, in the shape of a remittitur after judgment, by the effect of which the claim of the plaintiff was irrevocably reduced to a sum less in amount than the lower limit of our jurisdiction.

Carrying' out the principle therein announced, it would seem to follow that, in this case, over which the jurisdiction of this Court was avowedly vested under the pleadings, it could not be divested by a subsequent act of the judge, and much less by his judgment.

The reliance on the opinion in the case of Duran’s Succession, 34 Ann, 585, cannot avail; that case was practically overruled by the two mandamus cases above referred to.

Hence it is doubtless that appellee’s astute counsel did not even intimate our want of jurisdiction in this matter, but actually joined in the appeal and prayed for an amendment of the judgment.

But this appeal should be maintained even if the Duran decision is still authority. The theory of that case was that the judgment which dismissed appellant’s opposition, homologated at the same time the account of administration so far as not opposed, thus reducing the fund remaining in the hands of the administrator to an amount less than the lower limit of our jurisdiction.

In the instant case, the judgment on the oppositions was rendered, (although not signed) before the judgment of homologation of the account so far as not opposed. It, therefore, appears that when opponents were thrown out of court, the fund to be distributed had not yet been reduced, under the process illustrated in the Duran case; and, that it was yet in the sum of $6629, an amount more than sufficient to give us jurisdiction.

I, therefore, sincerely believe that there is error in the judgment of dismissal.

Mr. Justice Fenner concurs in this opinion.

On Application por Rehearing.

Bermudez, C. J.

The appellant claims that there is error in the judgment dismissing her .appeal for want of jurisdiction. She says the court decided that the fund to be distributed does not exceed $2000, when the fact is that it does. She represents that the entire fund which the executor proposed to distribute, by his account, exceeds $6500, and that she has opposed each and every item, which together aggregate that sum. She therefore urges that the fund to be distributed exceeds $2000 and that we have jurisdiction.

The complaint rests upon the assumed but groundless theory that a creditor has a right to oppose each and all the items of an account of distribution, in a thoroughly solvent succession, when a distribution of the surplus of his claim could not possibly injure him.

No doubt a creditor has a right, where his interest may be jeoparded by a distribution of funds, to oppose such distribution, but so far only as to have ample provision made to cover his claim, in capital, interest and costs, should it be finally allowed (14 Ann. 863); but he has no right to obstruct a distribution of the surplus where such distribution can, in no possible contingency, affect his interest injuriously.

In the present instance, the fund proposed for distribution was $6500 and more; the debts and charges wore about $825; the residue about $5800, accruing to the legatees, special and residuary. The oppositions to the amount called for $1350, in capital.

Tlie opponents surely were entitled to ask to be placed on the account from which they had been omitted; but as there were ample funds to pay the debts in full (those stated, in the account and those mentioned in the opposition), and there was thereafter a large amount accruing to the legatees, the opponents had no interest, and therefore no right, to oppose a distribution among the creditors and the legatees, except as was necessary to secure a reserve from the residue to satisfy their demands, in case .they were finally allowed.

Tlie law distinctly provides, in cases of oppositions to accounts in succession matters, that if the decision thereon be appealed from, the succession representative is bound to retain a sufficient sum to satisfy the claim on which the opposition is made, with interest and cost; but that he cannot, under pretext of this appeal, refuse to distribute among the creditors, whose debts and privileges are not contested, the surplus remaining after this sum being retained. R. C. C. 1187; 12 Ann. 72.

It is true in this case that all the items wore opposed, but this was done without a sufficient showing of interest to arrest the whole fund. The oppositions could prevent a distribution only for an amount sufficient to pay the opponents eventually. Beyond that, they were frivolous on their face, and on that account could not give this Court jurisdiction.

The only fund arrested and not disposable for distribution was the $1345 retained to meet the oppositions eventually. Interest and costs could not swell the capital, and it is over the capital that the jurisdiction of this Court is authorized to extend.

The judgment first rendered did not direct specially a distribution of funds, as it was unnecessary that it should. The judgment secondly rendered sustains one opposition, amends and homologates the account and orders that the funds be distributed accordingly. What funds 7 Evidently not those to be distributed by the account, but those retained by the executor to meet the oppositions.

Wo are at a loss to perceive how, after the executor had retained the $1345 with interest and costs, claimed by the opponents, these could have any interest, and in the absence of such any right, to impede by an unreasonable and unjust opposition a distribution of the entire funds, as to others, whose payment could in no way injure them. They cannot be permitted thus, inequitably, to wrong others and clog the liquidation of the estate.

It is manifest from the pleadings that in no possible contingency can this Court render, on the opposition of appellant, a judgment either ordering or denying the distribution of a fund exceeding $2000. The rulings in the successions of Duran and McDowell are affirmed.

We, therefore, conclude that there is no error in our previous decree which dismisses the appeal for want of jurisdiction.

Rehearing refused.

Dissenting Opinion.

Poché, J.

Appellants’ counsel call our attention to a feature of the judgment appealed from which had been entirely overlooked by the majority as well as by the minority of the Court in the first opinions herein rendered.

It is this: that no order of the district court directing the distribution of the funds of the succession had been rendered previous to that contained in the judgment signed on the 25th of November, 1884, and that the judgment of July 3d of the same year contained no direction touching the distribution of the funds.

That portion of the former judgment hereinabove referred to reads as follows: “It is further ordered that the opposition of Dr. J. N. Fol-well be maintained in so far as to order the executor of this succession to amend his account herein filed by placing said opponent, Dr. J. N. Folwell, thereon for the sum of one hundred dollars; and as amended, it is ordered that the said account be finally approved and homologated, and the funds distributed accordingly.” (The italics are mine.)

It is respectfully suggested that no rational doubt can be entertained as to which funds the district judge referred to in the language quoted, not more than as to which succession he contemplated.

It is clear beyond contention that he referred to the funds of the succession which were yet'in the hands of the executor, which had not hitherto been finally disposed of, and which are shown by the executor’s account to have amounted to the sum of $6629.

The judgment rendered therefore ordered the final disposition of a fund to be distributed, exceeding in amount the sum of two thousand dollars, and this Court is clearly vested with jurisdiction over the controversy.

In my opinion, appellants were entitled to a rehearing.

Mr. Justice Fenner concurs in this opinion.


text:
    No. 9452.
    The State ex rel. Henry Bier vs. E. A. Burke, Treasurer.
    Where a preference in payment has "been given by the legislature to the warrants for an appropriation over all warrants upon the general fund or over certain specified warrants thereon, the holders of such preference-warrants are entitled to be paid in accordance with such provision subject to the pre-payment of the Constitutional and the University warrants.
    Where the residue oí the general fund, after payment of these two classes of warrants, and the payment of those warrants to which legislative preference has been given,1 is insufficient to pay in full all other appropriations, they must share such residue pro rata,.

    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      A. 0. Lewis and T. M. Gill for the Relator, Appellee.

      H. B. Magruder and F. L. Richardson for Intervenor, Appellee.

      M. J. Ounnmgham, Attorney General, for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The relator is the holder of warrants upon the general fund of 1884 amounting to thirty two thousand five hundred and thirty five dollars, and alleges that there are over one hundred thousand dollars to the credit of that fund in the Treasury out of which his warrants should be paid pro rata with all others save the Constitutional warrants and those for the Universities which are entitled to preference. He alleges that the Treasurer has avowed his intention to j>ay certain warrants in preference to those of relator, and as the appropriations of 1884 exceed the revenues of that year the relator will suffer by such payment. Among the warrants to which the Treasurer gives preference are those of the Cotton Exposition, and the relator avers that a part of his warrants amounting to six thousand six hundred and eighty three ¡¡£ dollars should be paid before those of the Expositiop because by the express terms of the Act making the Exposition appropriation the warrants issued thereunder are to be paid after the Constitutional and legislative warrants and the warrants already authorized by law for other purposes, and his warrants to the extent mentioned were then authorized by law. He prayed a mandamus to compel the Treasurer to pay his warrants pro rata in the manner sot out in his petition.

The Treasurer admits that the revenues of 1884 fall short of the appropriations of.that year so that all warrants cannot be paid in full, but he insists that certain appropriations are entitled to preference in pajmient, some because such preference has been expressly given by legislative Act, others because they were made to support institutions recognized as existing by the Constitution or commanded to be established thereby. He instances the Board of Health, the bureau of Agriculture, the Assessors, the Asylums and Hospitals as in the latter class, and the appropriation for the Exposition and for the repairs of the State House as in the first class. He declares his purpose to pay all such warrants pro rata and in preference to all other warrants that are not included in these two classes—that is to say, the Constitutional warrants holding the first rank and those for the Universities the second, a third rank will be created which shall include warrants to which a legislative preference has been given and those which in his opinion “can be traced to a constitutional source.”

An intervention of the New Orleans National Bank alleges the ownership of thirty five hundred dollars of warrants authorized by an Act of 1882 to be drawn on the general fund of 1884 and directing payment of them by preference over all ordinary warrants. Sess. Acts 1882, p. 181. The intervenor claims preference over all warrants upon that fund except the Constitutional and Universities’ warrants and prays that the Treasurer be not authorized to pay warrants as classified by himself nor to pay the relator’s as demanded by him. He did not ask or obtain a mandamus to compel the payment of his own in the order claimed for them. His only process is an ordinary citation and in precisely similar pleadings in State ex rel. Houston v. Burke, Manning’s Unrep. Cas. 350, it was ruled that an intervenor could not be relieved on such process, and as was done in that case we shall dismiss the intervention without prejudice to the future assertion of his rights.

We do not think the respondent is justified in creating a third rank of warrants in which shall be placed those that by his definition are traceable to a constitutional source. Such definition is too vague for practical purposes and, what is more important, is not countenanced uby the Constitution nor is it a reasonable or legitimate deduction from our interpretation of that instrument in establishing the two ranks of warrants already mentioned. We held that officers whose salaries aro fixed by the Constitution are entitled to be paid in preference to all other appropriations. They are Constitutional appropriations of the sums named to the purposes named. Collens v. Dubuclet, Manning’s Unrep. Cas. 380. We also held that the appropriations for the Universities are entitled to be next paid for the reason, that they are issued under a direct mandate of tlie Constitution, State ex rel. Administrators v. Treasurer, 35 Aun. 457 but we refused any preference to tlie warrants of the Board of Health, and the reasons assigned in our opinion in that case, not yet reported, apply equally to those of the bureau of Agriculture and others named in the respondent’s answer and need not he repeated here. All warrants, except the two classes whose rank has been already settled, are ordinary warrants of the same rank aud are entitled to a •pro rata distribution of the funds upon which they are drawn, unless the legislature expressly gives some a preference over others. When an appropriation has been made which the legislature can constitutionally make and a preference in payment of it over all others or over certain others has been accorded by the Act, we do not conceive that the judiciary can control the legislative will in that regard. We have no disposition to trench upon the domain of the other departments of the government. We interfere with aud control their action only when required by the Constitution to which we are all alike subject.

The lower judge gave preference to those warrants of the relator that are prior in date to the Exposition appropriation over that appropriation, and directed that the relator’s warrants should share the general fund pro rata with others unless a legislative preference had boon given some of them, and "maintained the intervenor’s claim to a preference over all warrants except the Constitutional and Universities’ warrants. The judgment is correct save touching tbe intervention.

It is therefore ordered and decreed that the judgment below in favour of the intervenor he set aside and that his claim is dismissed as in case of non-suit at his costs, and that in all other respects the judgment is affirmed.


text:
    No. 9248.
    The State ex rel. New Orleans Gas Light Company vs. The City of New Orleans.
    A contract ■with tlie city of Now Orleans passed after tlie adoption of the constitutional amendment of 1874, was restricted for satisfaction to tlie revenues of tbe year and imposed no obligation upon tbe city to exercise in tbe future tbe then existing power of taxation in order to pay it.
    Tbe Article 209 of tbe Constitution of 1879, limiting tbe rate of municipal taxation, violated no obligation of sucb a contract; and as against a judgment founded thereon, tbe Constitution is entitled to as plenary effect as if the judgment had not been founded on contract at all.
    The judgment creditor, therefore, cannot, by mandamus, compel the city to levy a tax for his satisfaction in excess of the constitutional limitation.
    A PPEAL from the Civil District Court for the Parish of Orleans. \ T-issot, J.

      T. J. Sem/mes and Payne for the Relator, Appellant.

      W. H. Rogers, City Attorney, and Wynne Rogers, Assistant City Attorney, for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

Relator is holder of a judgment against the city of New Orleans rendered on June 12, 1878.

This judgment was based on two contracts for lighting the city with gas: one dated December 31, 1874, by which relator agreed to light the city during the year 1875; the other dated December 17, 1875, by which it agreed to light the city during the years 1876 and 1877.

Appropriations for the payment of relator were duly made on the city budgets for 1875, 1876 and 1877; and the power of taxation for current city expenses possessed’ by the city, was exhausted during each of said several years.

Relator setting forth its contracts and judgment and alleging that, at the date of its contracts, the city possessed a power of taxation for current city expenses of one and one-quarter per cent, which, so far as necessary to the satisfaction of his contract, continues to exist unimpaired by subsequent legislative and constitutional limitations, seeks relief similar to that recently granted by us in the case of State ex rel. Marchand vs. City, 37 Ann., not yet reported.

In other words, while the city’s power of taxation for general purposes is now limited by the Constitution of the State to one per cent, he asks a mandamus compelling the city to levy one-quarter of one per cent in addition thereto for the satisfaction of Ms judgment.

This relator’s case is significantly differenced from that of Marchand by the fact that, at the date of relator’s contracts, the constitutional amendment of 1874 had already been adopted and promulgated.

That amendment declared : The city of New Orleans shall not hereafter increase her debt in any manner or form or under any pretext. And after the first day of January, 1875, no evidence of indebtedness or warrant for the payment of money, shall be issued by any officer of said city except against cash actually in the treasury,” etc.

We have, heretofore, carefully considered the meaning and effect of this amendment, saying: “ It rendered it impossible for the city, by any voluntary act, to incur increased debt, ‘ in any manner or form or under any pretext.’ All persons were fully charged with notice that, whatever services they might render, whatever supplies they might furnish, they could never become creditors of the city of New Orleans, because she was utterly incompetent to contract additional debt. If they choose to deal witli her, without exacting- present payment, upon the basis of exjiected revenues appropriated to their payment, they simply acquired rights or claims upon that fund, dependent exclusively on its realization and only payable out of the same when converted into cash actually in the treasury.” Taxpayers’ Association vs. N. O. 38 Ann. 567.

Since the foregoing decision we have had several cases before ns involving disputed claims between the city and creditors claiming under contracts made under the dominion of the amendment of 1874, and, in rendering- judgments in favor of the creditors, we have invariably restricted them to payment out of the revenues of the year which the services or supplies were furnished. Eager vs. New Orleans, 36 Ann. 937, and other cases.

It is claimed, however, that as relator’s judgment is absolute and contains no such restriction, it is conclusive as to the validity of the debt and entitles the judgment to all lawful means of satisfaction.

Without concluding ourselves on this question, we may, for the sake of argument, admit it.

Then, the question arises: what are lawful means of satisfaction 7 Has the relator a right to require the city to levy a tax in excess of the rate to which her power of taxation is limited by the Constitution of the State ?

To maintain such right, relator must show that the constitutional limitation violates the obligations of a contract entered into prior to its adoption. This requirement is imperative.

Relator points to a contract passed, indeed, prior to the Constitution; but that contract imposed upon the city no obligation to exercise, in any future year, the power of taxation then possessed, or indeed, any taxation whatever, for the satisfaction of the contract, beyond that for the year in which it was passed.

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

A remedy which did not exist cannot be impaired.

It cannot possibly be said, therefore, that the provision of the present Constitution violates any obligation of relator’s contract, and it must submit to its unquestionable authority.

Conceding that relator’s judgment establishes the validity of the debt, yet as it is founded on a contract, the obligations of which are not impaired by Article 209 of the Constitution of 1879, that article is entitled to as full execution against it as if its judgment had not been founded on contract at all.

The best position relator can claim is to have his judgment placed upon a parity with that of Folsom Bros. vs. City, 32 Ann;—evidence, if you will, of an absolute valid indebtedness, entitled to satisfaction by all lawful remedies, but subjected to the domination of the existing Constitution of the State, which, though passed subsequently to the contract, violates no obligation of the latter.

For the reasons there given and approved by the Supreme Court of the United States, the relief here sought must be denied.

This renders it unnecessary to consider any other questions raised in the argument of the case.

Judgment affirmed.

On Application for Rehearing.

This case is clearly distinguishable from that of Nelson vs. St. Martin Parish, 111 U. S. 716,

The judgment sought to be enforced in the latter case settled affirmatively not only that the debt claimed under the contract was due, but also that the creditor was entitled to the tax claimed for its enforcement.

This appears from the statement of facts and also from the following clause of the opinion: “ The judgment being absolute and the plaintiff therein being by law at the time entitled to a decree that the assessing and collecting officers of the parish should assess and collect a tax sufficient to pay it, and such decree having been entered, and those officers having failed in their duty, the relator was entitled to the writ prayed.”

But in the instant ease, relator’s judgment settles nothing but the existence of the debt. It neither considers nor determines his right to a tax for its satisfaction. That remains an open question which we are, for the first time, called on to determine.

We have no need to go outside of the opinion in the Nelson case to find a lucid expression of the very doctrine which we have applied in our original opinion.

1 Thus the Supreme Court of the United States says: “As the contract clause of the Constitution was intended to secure the observance of good faith in the stipulation of parties, against State action, it could not be invoked when no such stipulation existed. * * * It was, therefore, entirely within the competency of the Supreme Court of Louisiana to authorize an inquiry into the cause of action on which Nelson’s judgment was rendered, when he prayed for its enforcement by proceedings which were authorized by legislation existing at its date, but subsequently repealed. Whether such repeal was effectual to deprive him of the process prayed, depended upon the question whether the judgment was founded upon a contract, the obligation of which the State was prohibited from impairing. By the obligation of a contract is meant the means which, at the time of its creation, the law affords for its enforcement. The usual mode by which municipal bodies obtain the funds to meet their pecuniary engagements is taxation. Accordingly, when a contract is made upon the faith that taxes will be levied, legislative repealing or modifying the taxing power of the corporation, so as to deprive the holder of the contract of all adequate and efficacious remedy, is within the constitutional prohibition.”

These germinal principles this Court has accepted and has consistently enforced. To depart from them now would be to fly in the face of our own precedents; and nothing could be farther from our conscious intention.

But we find ourselves here called on to determine whether a provision of the Constitution violates the obligations of relator’s contract.

How is this question to be determined? If the contract was entered into “upon the faith that taxes would be levied,” says the Supreme Court, “legislation repealing or modifying the taxing power, so as to deprive the holder of adequate remedy, is within the constitutional prohibition.” This affirmative is pregnant with the negative that, if the contract were not entered into upon such faith, but, on the contrary, with full knowledge based on the fundamental law of the State that such taxation would not and could not be resorted to, the subsequent legislation is not within the constitutional prohibition.

If, as in the Nelson case, the judgment had decreed that relator was, under its contract, entitled, as part of its legal obligations, to demand the exercise of the then existing power of corporate taxation, the powerful shield of res judicata would have protected it against all question that such was the obligation of the contract and that it could not be impaired by subsequent legislation reducing the taxing power. But we encounter no such bar. The judgment does not touch that question. It arises before us as a now and original question. We do not assume to retry the original case. We touch no matter determined by the judgment. But when we are asked to enforce the judgment by a particular remedy which is now prohibited by the Constitution of the State, we simply inquire whether that remedy entered into the obligations of relator’s contract.

Finding that this inquiry is proper, that it is open and in no manner concluded by relator’s judgment, and finding that by virtue of the fundamental law of the State in force at the date of the contract this rem • edy was absolutely excluded from its obligations, our duty is clear to deny to relator the privilege of overriding the mandate of the State Constitution which, except in so far as it conflicts "with the Federal Constitution, is binding on it as upon ourselves and all other citizens.

It would be, indeed, a grievous calamity if, through the mere omission of a judgment to pass upon a question which was not before it, this debt-burdened and tax-ridden city could be compelled to levy an extra tax to satisfy such a debt.

Rehearing refused.