author: McEnery, J. Fenner, J. Watkins, J.

text:
    No. 10,356.

    Succession of Foucher de Circé.
    Opposition to Tableau of Distribution.
    A claim having been awarded by the Frencli-American Commission to the executor of a deceased French citizen, and the amount collected by the French government and paid to the dative testamentary executor in this State the legatees of the testator in tlie fund will share alike, as designated by the testator, although some of them are French citizens and others citizens of the United States.
    The legatees, French citizens, opposing the distribution, claim under the will alone, and therefore cannot ask that its disposition be changed so as to increase the amount given to them by the'testator.
    The Fronch-American Commission having decided it had jurisdiction of a claim presented by the executor of a deceased French citizen, its award upon the validity of the claim is final and conclusive; but it had no jurisdiction to pass upon the conflicting rights of parties to the fund awarded.
    The validity and amount of the claim being ascertained, and the amount paid to the party in whoso name it was presented and prosecuted, all conflicting rights of parties to the claim can be ascertained by the ordinary judicial tribunals. When paid to the executor of a deceased claimant it will be ordered distributed in the oourso of the administration of tlie succession, without reference to citizenship.

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

      Henry Denis and Charles Carroll for Opponents and Appellees :
    •A treaty of tlie United States is tlie supreme law of tlie land, to wliicli State laws and State judges must yield obedience. Const, of U. S., Art. 6; Cooley, Const. Limit.» p. 14; 3 Dali. 237 ; 100 U. S. 483.
    The award of the commissioners, under a treaty of indemnity, settles two things only: first, the validity of the claim, and, secondly, the amount of the indemnity. It leaves open to the courts all right of conflicting claimants inter sese. 1 Peters, 193; 5 Peters, 675; 14 Peters, 95; 17 How., 612.

      Henry CMapella for tlie Dative Testanientary Executor and others, Appellants:
    1. When a judgment has once been signed by the judge, it should be interpreted by that court, as well as by all others, objectively; that is, it should be construed with reference to the pleadings and the subject-matter. Succession of Regan, 12 Ann. 156.
    It is onty when the terms of a judgment are of doubtful construction that resort may he had to the pleadings. 15 Ann. 223, 679; 16 Ann. 363; 4 L. 100; 10 Ann. 177; 1 Ann. 92; 1 Hennen, p. 728, Ho. 8.
    The pleadings, and not the points raised in argument, are to determine what was in controversy before a court. Saul vs. Creditors, 7 H. S. 432.
    All issues presented by the pleadings in a cause and on which evidence is introduced on trial will be considered as disposed of by a final judgment, though it he silent on one or more of the issues, unless a special reservation is made in the judgment. Yillars vs. Faivre, 36 Ann. 398; Rauxet vs. Rauxet, 38 Aim. 669.
    2. A party having set forth his demand by intervention, and his rights having been passed upon, is estopped from presenting a direct action on the same demand against the same party. In such a case the plea of res judicata will prevail. Shelton vs. Brown, 22 Ann. 162.
    The plea of res judicata is to be decided by reference to the matters put at issue by the pleadings. Bonvillain vs. Bourg, 16 Ann. 363.

      lies judicata cannot be defeated by making another party eo-dofendant with the one pleading it. This would be an easy mode of defeating the plea in all oases. Foss vs. Brentel, 14 Ann. 798.
    A judgment may sometimes operate as an estoppel against a party, against whom it cannot be technically pleaded as res judicata. 1 Hennen, p. 766, Ho: 42; See also Bigelow on Estoppel, pp. 8, 129, 45 and notes ; Freeman on Judgments. Sec. 249; 7 Wallace, 102, 622; 21 Ann, 355 ; 22 Ann. 81: 24 Ann. 33 ; 26 Ann. 236, 320, 419; 19 L. 318 ; 14 L. 135; 12 Ann. 197; 9 Ann. 208; 33 Ann. 581. ' .
    3. An award by a Board of Commissioners appointed under a treaty is only conclusive as to the liability of the government and its amount.
    The conflicting rights of claimants to the fund n left to the ordinary course of judicial proceedings in the established courts of justice.
    The right to indemnify for an unjust capture attaches to the ownership of the property itself. It may he assigned, it may be transmitted by inheritance or by will.
    Such a right to an indemnity is not a donation or gratuity. The present ownership of the claim, whether in assignees or personal representatives, or bona fide purchasers, need not he ascertained for the full exercise of their functions by such Board of Commissioners. Comegys re. Vasse, 1 Peters, 193, 220 (seo pp. 212. 210, 218). Emerson vs. Hall, 13 Peters, 109, 4U (sou pp. 412, 413). Phelps vs. McDonald, 99 U. K. 298, H seq.

    ■i. Einally, sen Burtlic. vs. Denis, 31 Nnn. 568.

      This case is pending before the Supreme Court of the United States on a Writ of Error.

   The oxiinion of the Court was delivered by

McEnery, J.

Louis Frederick, Marquis de Circe, a citizen of France, owned projierty in Louisiana, which was taken ]>ossession of bj’ the United States government during the Civil' War, and the xiroperty was used and damaged and some x>ortions destroyed. The Marquis de Circe died in 1869, and, by his will, instituted his widow his universal legatee. The widow, the Marquise de Circe, died in 1877, and in her will instituted her nieces and nephews her universal legatees.

Under the terms of the treaty between the United States and France, of July 15, 1880, the object and xmipose of which was the final award of all claims of the citizens of one nation against the other, for all acts of the civil and military authorities ■ during the Civil War between the States, and the Insurrection of the Commune, which injuriously affected the citizens of the other, the dative testamentary executor of the succession of the Marquis de Circe x>resented a memorial to the French-American Commission for the damage done to the x>roperty of the said Marquis de Circe in Louisiana.

The amount of $9200, with 5 per cent interest from April 1, 1865, was awarded on account of said claim to Arthur Denis, dative testamentary executor of L. F. Foucher de Circe. The net x>roceeds of this amount, $5280, the executor x>roposes to distribute ratably among the legatees under the will of the widow Foucher. The French government collected the claim and x>aid the amount to the executor, to be distributed. Two of the legatees under the will are French citizens, and the others citizens of the United States.

The, legatees who are citizens of Fra,nee claim the whole amount awarded by the commission, on the ground that' they' are French citizens, and only to them, as such, could the award have been made, thus excluding the other legatees from the bequest made by their common testator.

There can be no doubt but that the x>roper interpretation of the treaty is that awards could only be made to French citizens for damages inflicted by the civil and military authorities of the United States.

The award was made in favor of the rejn'esentative of a deceased French citizen, to his dative testamentary executor, and paid to him as such representative, and has been x>laced in his x>ossession as an asset, of said succession, to be disposed of in the course of its administration.

The decision of the commission, within the scope of its authority, is conclusive and binding, and it passed on the validity of the claim of a. French citizen and declared it to he valid. The Fren oil citizen had died and the award was made to his legal representative. There was no authority delegated to the commission to adjust all conflicting rights of different parties to the final award. It had determined that it had jurisdiction of the claim because presented l>y the legal representative of a deceased French citizen, and the “validity and amount of the claim being once ascertained by their award, the fund might well he permitted to pass into the hands of any claimant, and his own rights, as well as all others who asserted a title to the fund, he left to the ordinary course of judicial proceedings in the established courts where redress could he administered according to the nature and extent of the rights or equities of all the parties.” Comegys vs. Vasse, 12 Wheaton, 531.

If tlie award had been made in favor of the opponents only because they were French citizens, without an inquiry into the origin of their right, it ought, to have been paid directly to them by the French government, and the award ought to have been made specifically to them. '

The claim was a part of the estate of the Marquis de Circé, which passed by his will to his widow, and by her will to her legatees. She had a right to dispose of it as freely and fully as she could of any other item of her property which composed the mass of her estate and which she owned at the time of her death, to any person, or to more than one, in such proportions as she saw fit to designate, as she left neither ascendants or descendants.

All of her legatees come in for a part of her estate, as designated by her, and who claim participation in the distribution of the fund, under the will, as legatees, for their respective portions.

Claiming under the will of Madame de Circé, the court can not alter the intentions as expressed therein by Madame de Circé, and increase the share of some of the legatees to the exclusion of others.

In the absence of an express final and determinate decree of the commission as to whom the award was due, we can not review the judgment, of the commission and say that the. award was in favor of certain legatees, when the award was made in favor of the executor and the amount paid to him on account of the. succession. Why is the claim here on Ms account for distribution ?

If the amount- was due exclusively to the French legatees, we can not understand why the French government did not pay the claim to them directly.

It is in the hands of the executor as a part of the estate of Madame de Circé, and the funds must be shared under the terms of her will.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and the opposition dismissed at opponents’ costs and that the tableau of distribution be homologated according to the classification therein.

Dissenting Opinion.

Fenner, J.

Considering:

1. That the money to be distributed was collected under a treaty between the United States and France;

2. That under the terms of the treaty as interpreted by the commission organized under it, neither country could recover from the other any award except where the actual claimants, by whatever title, whether by descent, devise or conveyance, were, at the date of the award, citizens of the country recovering;

3. That, as decided by the Supreme Court of the United States, the decision of the commission settles nothing but the amount and validity of the claim, as between the two Nations, and leaves open the question as to what parties are actually entitled to claim the benefit of the award;

4. That evidence properly received shows that the opponents were tho only French citizens interested in the claim, that the claim, to the extent of the interest of the American co-legatees, was substantially abandoned by their own counsel, and that the amount awarded was really only that proportion of the total claim which fell to these opponents ;

5. That the executor prosecuted the claim and received this fund, not as executor simply, but as attorney in fact, of aE the legatees, including the opponents, and is bound to pay it to the parties legaEy entitled and for whose benefit the award was made, who are fully proved to be the opponents herein.

I dissent from the opinion and decree and think the judgment appealed from should be affirmed.

Concurring Opinion.

Watkins, J.

On making an independent examination of this case, I feel satisfied that the opinion of the court is correct.

It appears to my mind clear that the claim for the award was made originally in the name and for the account of Marquis Fourcher de Circé; that he made a wülinstituting his wife his universal legatee and died; that his widow succeeded to all the rights of her deceased husband, and made a will instituting her nephews and nieces universal legatees in equal amounts. She died, and her executor was made party to the proceedings before the commission, and subsequently the opponents made themselves parties thereto, and joined the executor in virtue of their rights as legatees.

Tire commission made an award in general terms, not designating the names of the beneficiaries. The award was paid to the French Government and it transmitted same to Arthur Denis, executor. This, he proposed to distribute among all the legatees ratably, under the terms of the will. Opponents set up claim to the whole in virtue of their being French citizens, as well as legatees. They do not claim as simple heirs, and sue for a fund in the hands of a stranger, but appear in the succession of Mrs. Foucher de Circé, and claim as legatees, the whole sum it bring in excess of tlie share allotted to them.

We must of necessity treat tliis fund as tlie property of Mrs. Foucher’s succession and not that of opponents. They being collaterals had no rights except under the will of Mrs. Foucher. The whole record furnishes ample proof of this, and I concur in the majority opinion of the court.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 10,300.
    Leopold Girot vs. Peter Graham.
    1. It is not always that malice and want of probable canse can bo inferred from tlie discharge of an accused. If tlie discharge be jpmfla facie evidence, the presumption may bo rebutted by sufficient proof.
    2. In the absence of facts showing malice and want of probable cause, which are essential ingredients in an action for malicious prosecution, no recovery can be had for indemnity.
    3. It is the malice, composed of bad feeling, and the knowledge of the want of a probable and just cause, which create liability.
    4. Public interest and a proper administration of justice require that actions for a malicious prosecution should not be maintained without clear proof of malice and want of probable cause.
    5. Courts cannot inflict damages on a party for resorting* in good faith to law, for the protec tion of his rights, rather than taking* the chances of a recourse to arms, or tamely aban doning the field to an usurper.
    APPEAL from the Civil District Court for the Parish of Orleans. JMgMor, J.

      Omer Yülcré for Plaintiff and Appellee.

      W. JB. Lancaster for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a suit to recover $5000 damages for a malicious arrest and prosecution, without probable canse, under a. charge of breach of the peace.

The defense is a denegation of malice, an averment of probable cause and contains a counter claim for like indemnity under a kindred charge.

The ease was tried by a jury who returned a verdict for $750 in plaintiff’s favor, dismissing defendant’s rc.conventional demand.

J)rom the judgment rendered in conformity with the verdict, the defendant appeals.

The following are the pertinent facts disclosed by the record :

The plaintiff and the defendant own contiguous urban lots, on part of the dividing line of which, no fence had been erected.

In pursuance of the direction of a surveyor, whom he had consulted, the defendant, after notice to plaintiff) caused an enclosure to be built on part, of what he Imdheen informed was the true division line between the lots.

Plaintiff then had the spot examined by a different surveyor who reported that the fence thus put up by defendant, encroached some six inches on his (plaintiff’s) lot.

Plaintiff then began to enclose that portion of the division line, which defendant had left open ; but, while at work, discovering that the fence thus being constructed, was continuing the encroachment begun by defendant, lie undertook to have it removed further off, to what he had been advised, was the proper boundary.

While plaintiff’s men were engaged, in the act, defendant appeared, remonstrating against the displacement, an ax in hand, eventually to demolish the fence, but his protest remained unheeded.

Naturally words passed, but no personal conflict followed.

Thereupon defendant telephoned to the nearest police station, charging a breach of the peace by plaintiff. The patrol wagon arrived, drawing attention, as is usual.

Defendant then directed the arrest of plaintiff and of his men; hut matters were so arranged that the latter were let alone.

The police officer despatched and on duty and plaintiff then went in a street car, to the Recorder’s office, where defendant made a.n affidavit against plaintiff for a breach of the peace, while plaintiff, retaliating, made a counter complaint against the defendant,- Loth being paroled to appear on an early fixed day.

After trial, both were discharged.

The record fails to show malice and want of probable canse, which are essential ingredients in controversies of this kind, on the part of either party, who, under the circumstances, had authority to believe, in good faith, that he had the right to do what he had done, the plaintiff to remove the fence, the defendant to protest against the displacement and to invoke the law.

It is the malice composed of bad feeling and the knowledge of having no just cause of action which create liability. Kearney vs. Holmes, 6 Ann. 373.

Public interest and a proper administration of justice require that actions for a malicious prosecution should not be maintained without clear proof of malice and want of probable cause. Maloney vs. Doane, 15 L. 278; McCormick vs. Conway, 12 Ann. 53.

We do not think that, from the fact that the plaintiff was discharged by the Recorder and that the defendant was likewise released, malice, and want of probable cause on the part of either, must necessarily be inferred.

If the discharge in each case be viewed as prima fade evidence of malice, the proof adduced by both parties rebuts that presumption.

It was well said, in an analagous case: “ It would be of the worst example to punish this defendant for resorting to law, for the protection of his rights, rather than taking the chances of a resort to arms, or tamely abandoning the field to an usurper.” Lisk vs. Mathis, 11 Ann. 419; see also Godfrey vs. Soniat, 33 Ann. 915; Coleman vs. Insurance Co., 36 Ann. 92; Dearmond vs. St. Armand, 40 Ann. 374.

It is therefore ordered and decreed, that so far as the verdict and judgment appealed from are in plaintiff’s favor, tlie same be reversed and set aside and that judgment now go in favor of the defendant on the main action, and that, so far as said verdict and judgment appealed from, are against defendant and plaintiff in reconvention, on the reconventional demand, rejecting the same, the same be affirmed, the costs of appeal to be paid by plaintiff and appellee, those of the lower court be paid equally by the parties’ litigant.


author: Poché, J.

text:
    No. 10,386.
    State of Louisiana vs. A. H. Strickland et als.
    A. motion to quash an indictment for tlie reason that the clerk of the court had not keen sworn as a member of the jury commission, made after arraignment, but before trial, will bo considered as seasonably made, if it appears from the record that tlie defect was not known to the accused, or his counsel, on the first day of tlie term, or before arraignment.
    APPEAL from the Sixteenth District Court, Parish of St. Helena. Brame, J.

      John H. Stone, District Attorney, for the State, Appellant:
    1. The clerk not being sworn as a jury commissioner is one of the “defects ” enumerated in section No. 11 of Act No. 44 of 1887, and to prevail, must bo urged on the first day of the term, as well when urged against the legality of the grand jury as against the petit jury. 16 Ann. 141; 21 Ann. 609.
    2. The grand jury has no relation to the jury commissioners, except as it is a part of the venire from which it is drawn, and whatever illegality it may have, it is no more than the illegality of the parent venire.
    3. Persons charged with crime are required to notice the terms of court, and the drawings of juries; that the grand jury wid be selected from the venire of the first week; that all accusations of crime will be laid before the grand jury, their case as well as all others. The records of courts are open to all, and at their peril they must know in what manner jury commissioners are appointed and qualified. 33 Ann. 896.
    4. As soon as the affidavit or charge against an accused and other proceedings had in the case before the committing magistrate are forwarded to the proper criminal court, the prosecution must be construed as having been instituted in the latter court. 38 Ann. 1198.
    5. The policy of the law that denies to criminals the privilege of taking the chances before petit juries, and then after trial and conviction, urging defenses which set up “ defects ” of said petit juries, is the same that forbids them the privilege of taking their chances before grand juries, and after indictment urging “ defoots ” to said grand juries.

      W. B. Kerncm and Biecl & Bled for Defendants and Appellees:
    1. The want of qualification of the clerk of the court as jury commissioner, is a matter of substance, and not of form.
    2. It is only matters of form that must he objected to on the first day of tlie term.
    3. Matters of substance are not waived the by plea of not guilty, and may be urged before trial and verdict. State vs. Stiles, 5 Ann. 327; State vs. Dolerno, 11 Ann. 648; State vs. Cook, 20 Ann. 147; State vs. Palmer, 32 Ann. 565; State vs. Nicholson, 14 Ann. 785.
    4. A motion to quash for tlie want of qualification of the clerk as jury commissioner may he made after the plea of not guilty and before the trial, i; c., in the preliminary stages oí' the case. Bishop Grim. Prac., vol. 1, see. 762; State vs. Newhouse, 29 Ann. 825; State vs. Washington, 33 Ann. 897; State vs. Conway, 35 Ann. 350.
   The opinion of the Court was delivered by

Poché, J.

The State appeals from a judgment which sustained a motion to quash an indictment for murder returned against the defendants.

The ground of tlie motion was the illegality of the drawing of the venire of the jury from which the grand jury had been formed, for the reason that the clerk of the court, at the time of said drawing, had not been sworn as a jury commissioner.

The proof is that the clerk had not taken an oath as jury commissioner at the time of drawing the venire for that term, and our jurisprudence has settled that such a defect will vitiate an indictment returned by a grand jury drawn from such a venire. State vs. Williams, 30 Ann. 1028; State vs. Vance, 31 Ann. 398; State vs. Bradley, 32 Ann. 402; State vs. Thompson, 32 Ann. 879; State vs. Conway, 35 Ann. 350.

But tine contention on the part of the State is that the motion to quash was not made in time, as it was made after arraignment and plea of not guilty, and because it was not made on the first day of the term as required by Section 11 of Act 44 of 1877, which reads :

“That ail objections to the manner of drawing juries, or to any defect or irregularity than that can be pleaded against any array or venire, must be. urged on the first day of the term, or all such objections shall be considered as waived, and shall not afterwards be urged.”

It is very clear to our minds that this legislation was prompted by the frequent rulings of the courts tending to cure a vicious practice on the part of defendants in criminal prosecutions, who would take their chances of an acquittal before a defective jury, and who would, in case of conviction urge irregularities in the formation of the jury, which they should have set up in the preliminary stages of the trial.

But it is quite plain, and in fact it is conceded in this ease, that the letter of the statute cannot be rigidly enforced in all instances; and that it will not apply to a case in which the offense charged was committed after the first day of the term.

It is equally clear that it could not defeat a motion filed by a defendant who was accused or arrested only after the first day of the term. This was the state of facts exhibited in Conway’s case, 35 Ann. 350, as appears from the record which we have examined.

For the same reason the prohibition should not apply to a case in which the defect is not apparent on the face of the papers or proceedings, and when the defect is discovered after the first day of the term. And the mischief which jurisprudence had sought to avoid, and which the law was intended to cure, is likewise avoided, if the motion is made after plea but before trial when it appears that the defect was only discovered after arraignment, as was disclosed by the record, now before us, in Bradley’s case, 32 Ann. 402.

From the record in the present case, it appears that the defect which did not appear on the face of the papers, was not made known to the accused or their counsel, until or before the very moment that the motion to quash the indictment was filed.

Hence it follows that for that reason and on no other ground, the motion which was filed before that trial must be held to have been seasonably made, and that on authority the 'judgment which quashed the indictment is not erroneoxis.

Judgment affirmed.


author: Fenner, J.

text:
    No. 10,372.
    State of Louisiana ex rel. R. H. Yale et al. vs. Henry L. Duffel, Judge, Etc.
    1. A party, denying a right of drain claimed and exercised by an adjoining proprietor, and having applied to tlie courts by an injunction suit to settle the disputed right, is bound to respect the statu quo during‘tke pendency of the suit.
    2. The dissolution on bond of an injunction operates as an authority to perform the prohibited act during the pendency of tlie suit subject to responsibility under the bond.
    3. In the cases provided for by Article 298, C. P., and others similar, the judge has no discretion, but is bound to grant the application for injunction when made in conformity to law.
    4. -When a defendant obstructs tlie plaintiff in the enjoyment of a real right, which he claims and has exercised for many years, as by fencing a common passage way, or building a levee across a draining course, the latter is entitled to a prohibitory injunction restraining disturbance and to a mandatory order for tlio removal of the obstruction, which has been built pending litigation and without knowledge of plaint-iff.
    ^PPLICATION for Mandamus.

      F. N. Pugh for tlie Relators.

      B. N. 8ims and Fred. Duffel for tlie Respondent,
   Tlie opinion of tlie Court was delivered by

Fenner, J.

Relators and J. E. St. Martin are owners of contiguous plantations, that of relators being known as the “Home,” and that of St. Martin as the “Arlington.”

Relators claim, and St. Martin denies, that the “ Home ” is entitled to a servitude of drain of its waters over the lands of “Arlington” to conduct them to a natural water course known as the Bayou “ Joe Rose,” which is alleged to be tlie main and necessary outlet for carrying off tlie surplus water of that section.

While there is a dispute as to the right there is no dispute that the “Home” had, for many years exercised and enjoyed the privilege as a faet and had built levees to collect' its waters at a x>articular point and had constructed, a large and expensive draining machine which pumped its water on the lands of “Arlington,” which drainage system had also been in operation for several years.

Snell was tlie status quo, when, on tho 5th of April, 1889, St. Martin resorted to the court of the domicil, presided over by the respondent judge, and invoked a judicial settlement of the contested right, by a petition against relators in which, on axTroxiriate allegations denying the servitude claimed by tlie latter and setting up tlie illegality of their acts in the premises, they applied for and obtained a writ of injunction prohibiting relators from operating their draining machine, and prayed for a final judgment perpetuating said injunction and ordering relators forever to desist from draining over the “Arlington” Plantation.

The relators, defendants in said suit, obtained order dissolving said injunction on a bond to answer for all damages in case of judgment against them.

The effect of this dissolution was to restore the status existing prior to the injunction and to secure to relators the right to continue the operation of their draining machine subject to the condition, secured by the bond, of paying damages if found, by the final decree, to be illegal. State ex rel. Bell vs. Judge, 36 Ann. 886.

It was the plain duty of both the parties, whose contested rights had thus passed ■ingremio legis, to abide the orderly determination thereof, and, in the meanwhile, to respect the status qao.

But St. Martin was not content to do this. He was unwilling to await the judicial determination of his right to an injunction and to rely on the .bond to recoup him for damages sustained in the meantime. He takes the case out of court and practically issues an injunction of his own against the operation of relator’s draining machine by constructing a levee in front of said machine and across the route of the waters pumped therefrom, the effect of which is to block and destroy the drainage and, as alleged, to retain the water on relator’s place and to destroy its valuable crops. Although the date at which this levee was built is not positively fixed, it was constructed after the institution of the injunction suit, and done ‘without the knowledge of relators.

Under these circumstances, relators appealed to the court for an injunction prohibiting and restraining the defendant, St. Martin, from disturbing them in the free use and enjoyment of the right of drain through the “ Arlington” plantation to the Bayou Joe Rose, coupled with a prayer for an order commanding the sheriff to demolish and remove the obstructing levee.

The respondent judge was willing, it appears, to grant a rule nisi, but on relators’ asking him to act by either granting or refusing the injunction, he entered his official order refusing the same. We have no concern with anything except the legality of this official act.

The relators invoke the exercise of our supervisory jurisdiction in the form of a mandamus directing the judge to grant the order for an injunction as prayed for.

So far as the injunction restraining the disturbance is concerned, the ease falls within the letter of Par. 5 of Article 298 C. P., as one of the cases in which the article says, the injunction must be granted,” viz : “ When tlie defendant disturbs the plaintiff in tlie actual and real possession which such plaintiff has had for more than one year, either of a real estate or of a real right of which he claims either tlie ownefsldp, the possession or the enjoyment.”

The servitude of drain is a real right, of which the relators claim the ownership; and of which they had undoubtedly enjoyed the actual and real possession for a number of years. They presented a petition complying with all legal requisites of allegation and affidavit, and avowed their readiness to give bond conditioned according to law in such sum as the judge might fix.

We have held that in cases arising under Art. 303 C. P., the judge is vested with a legal discretion to grant or refuse an injunction, which will ¡not be supervisorily interfered with unless his action be manifestly arbitrary. N. O. vs. Telephone Co., 37 Ann. 571.

But in the cases provided for by Art. 298 and others similar, the jurisprudence is perfectly settled that the judge has no such discretion and is bound to grant the application when made in conformity to the requirements of law. Beebe vs. Guinault, 29 Ann. 795; State ex rel. Behan vs. Jude, 32 Ann. 1276; Slaughterhouse Co. vs. Larrieux, 30 Ann. 799; State ex rel. Gaynor vs. Judge, 38 Ann. 924; State ex rel. Jacobs vs. Judge, 40 Ann. 206.

Therefore, as to this' part of the relief asked, his absolute duty to grant it was beyond dispute.

We consider that the additional order prayed for to remove the levee which operates the disturbance was a natural and necessary corollary and concomitant of the injunction against disturbance.

The law, in express terms, authorizes the injunction when the defendant distivrbs the plaintiff” in the possession of his real right. It is granted as a remedy for actual, as well as threatened, disturbance. Tt contemplates an effective relief, and, manifestly, the injunction would be brutum fulmen if the obstruction, which created the very disturbance complained ot and enjoined, were permitted to remain and thus to paralyse its effect and to perpetuate the disturbance which the injunction forbids.

The case is on all fours with that of McDonough vs. Calloway, 7 Rob. 442. There the plaintiff claimed a right of passage through a certain common alleyway, and alleged that the defendant had illegally fenced it up so as to bar his passage. His prayer was “ that the judge will order the obstructions to the use of said passage to be immediately de - molished and removed, that an injunction be issued enjoining defendant not to disturb him in the use of the said common way,” etc. The lower judge granted the injunction against disturbance, but refused the order prayed for to remove the obstruction. This court decided that, in suoli refusal, he^committed error. After giving reasons thoioughly applicable to the instaut case, illustrating the vanity of the injunction without the order, the opinion concludes with this significant language: “ the law has not left the parties remediless in such cases nor the courts without power for the correction of suoh evils, and we think the judge below should at once have granted an order to have the obstruction removed by the sheriff.” See also: Pierce vs. City, 18 Ann. 242; Dudley vs. Tilton, 14 Ann. 286.

The later case of Black vs. Good Intent Co., 31 Ann., reviewed McDonough’s case above cited, and, as we understand the decision, approved and confirmed it, as an exception to the general rule expounded in the body of the opinion that the writ of injunction in the mandatory form cannot he issued on an ex parte application hut only after hearing. The exception is thus stated in the language of the opinion: “When, a prohibitory writ having issued restraining a party from obstructing the exercise of a right, the obstruction may he commanded to be removed because its continuance effects the very injury he was prohibited from effecting.”

In the instant case, it was the clear duty of the judge to grant the prohibitory injunction prayed for, and the consequent duty to order the removal of the obstruction arose simultaneously. We will not say that the judge, having first granted the prohibitory injunction prayed for, might not have ordered the defendant to show cause why the mandatory order of removal should not he granted. But under such showing, the inquiry would not have been as to the legal rights of the parties, but simply as to the fact whether or not the levee did obstruct the drainage. As, however, there is no question raised as to the fact of obstruction , and as the order of removal only contemplates a removal of the levee, «s'snch an obstruction, there seems to he no occasion for modifying the mandamus as prayed for.

It is, therefore, ordered and decreed that the provisional mandamus herein issued he now made peremptory.


text:
    No. 10,279.
    City of New Orleans vs. Pontchartrain Railroad Company and Spanish Fort Railroad Company.
    1. Article 217 of tlie Constitution has no reference to domestic corporations.
    2. License taxes must he graduated, and, therefore, need not he equal and uniform.

      3. Where tlie license tax levied "by the city does not exceed that levied on the same occupations in the city hy the State, it is valid, even if the State should have invalidated her own license tax by illegal discrimination between persons pursuing the same business in different subdivisions of the Slate. Such objection must be urged against the State’s tax and contradictorily with her.
    4. The penalty of 2 per cent per month imposed by the city, on delinquent licenses, being the same as that imposed by the State, is legal.
    APPEAL from tlie Civil District Court, Parisli of Orleans. King, J.

      W. B. Sommerville, Assistant City Attorney, for Plaintiff and Appellee :
    1. The summary proceeding by rule for the collection of licenses is legal. Act 101,1886, section 17, page 184; Act 119 of 1882; State vs. Chapman & Generally, 35 Ann. 76.
    2. Ordinance No. 2661, C. S., does not violate Article 217 of the Constitution, in not being graduated and equal and uniform as to all corporations transacting the same hind of business.
    3. Ordinance No. 2035, C. S., may be good in part and bad in part. Such portion of section 8 in said ordinance •which is clearly ultra viren is as if it were not written. It is not noces sary for a proper understanding of tlie ordinance, and cannot invalidate the whole. It can have no effect in any way.
    4. Section 8 of Act 101 of 1886 is in conformity with Article 206 of the Constitution. It divides the places where railroads are operated according to population, and then grades the license taxes, based upon the gross receipts of such companies. State vs. OTiara, 36 Ann. 96 ; State vs. Schonliausen, 37 Ann. 42; City of New Orleans vs. New Orleans, City and Lahe Railroad Company, 40 Ann. 587.
    5. Although the State license act maybe adjudged to be invalid such judgment will not have the effoct of setting aside and annulling a city ordinance which does not embrace or contain the objectionable features of the act of the State Legislature, simply because the Constitution provides that no political corporation shall impose a greater license tax than is imposed by the General Assembly for State purposes.”
    6. The charter of the City of New Orleans provides that the Mayor may sign an ordinance which he approves at any time, with these two limitations:

      (a) If the council be in session the Mayor must sign the ordinance submitted for his consideration within five days.
    (&) If the coundl^be not in session he may sign the ordinance submitted at any time prior to tlie next session of the council, provided this next session be held after live days given him in which to consider the said ordinance.

      Hm-ry II. Hall and Bayne, Denegre & Bayne' for Defendants and Appellants :
    1. Under section 9 of Act 48 of 1871, amending the city charter of 1870, the city can exact-only 10 per centum per annum on delinquent licenses.
    2. The above act is still in force, and so this court has held in several tax cases. Besides, the present city charter, Act 19 of 1882, only repeals former laws, inasmuch as they are in conflict with that act.
    3. Under articles 203 and 207 of the Constitution of 1879 license taxes must be graduated and they must be uniform.

      4. The Legislature, under the above articles of the Constitution of 1879, can graduate and divide into classes, but cannot distinguish as between persons in the same class j all in the same class must be treated uniformly.
    5. If there ho no valid State law laying a licensed tax upon the defendant corporations, tlio City of How Orleans is powerless to license tax them. Constitution, Act 206; City of jKew Orleans vs. Graves, 84 Ann. 840.
   Tlie opinion of the Court was delivered by

Fenner, J.

This suit involves a contestation as the constitutionality and legality of the license taxes levied on the defendants by the City of New Orleans under her ordinances Nos. 2035 of 1887 and 2661 of 1888.

Tire answer of defendants sets up various grounds of illegality and unconstitutionality, hut all have been abandoned in this court except the following:

3. It is charged that the license taxes claimed are not graduated and are not equal and uniform as to all corporations transacting the same kind of business, being thereby violative of Article 217 of the Constitution.

A reference to Article 217 will show that it applies exclusively to foreign corporations, and not to domestic ones such as the defendants.

The other objections to the mode of graduation and want of equality and uniformity are met and silenced by our recent decisions on these questions. State and City vs. Traders’ Bank, 41 Ann.; State vs. Ins. Co., 40 Ann. 464; State vs. Marrero, 38 Ann. 397; State vs. Schonhausen, 37 Ann. 42; State vs. O’Hara, 36 Ann. 94; State vs. Chapman, 35 Ann. 76.

2. The next objection is that the license taxes imposed by the city are invalid because there was no valid State law levying licenses on such corporations.

Article 206 of the Constitution provides that No political corporation shall inqpose a greater license tax than is imposed by the General Assembly for State purposes.”

This provision has been construed to mean that when the State levies no license on a particular business, the city can exact none.

It is not denied that the General Assembly has levied a license on the occupation of defendants and that the city exacts no greater sum for its own license.

But it is said that the provision of the State license law on this subject is invalid because it has made an unconstitutional discrimination between persons pursuing the same occnx>*dion in cities having population exceeding 50,000, and in those having a less population.

If there be any merit in such an objection to the validity of the license imposed by the State, it must be urged when the State seeks to enforce her license and contradictorily with her. It is very clear that it lias no application to the license imposed by the city, which makes no such discrimination and which has not levied a greater license than that imposed by the General Assembly on these defendants.

3. The final objection is that the ordinance of 1838 allows a penalty 2 per cent per month on delinquent licenses.

We have quite recently affirmed the validity of this penalty. City vs. Fireman’s Ins. Co., 41 Ann.

But the defendants claim that they have discovered a statute prohibiting such a charge, which has escaped our attention. They refer to section 9 of Act 48 of 1871, amending section 21 of the city charter of 1870. But a reference to the two laws shows that the amendment embraces taxes only, and not licenses,- that it limits penalties on delinquent taxes to 10 per cent per annum, but leaves those on delinquent licenses untouched.

The State imposes the penalty of 2 per cent per month on her delinquent licenses, and the city simply adopts the same, conforming- therein to the authority vested in her by Act 119 of 1882, which vests the politi.cal corporations with all the means of enforcing their taxes which are provided in State laws, amongst which are included the right to exact, the same penalties for delinquency.

Judgment affirmed.


author: Watkins, J.

text:
    No. 10,338.
    Anna Gossigi et al. vs. City of New Orleans et als.
    1. The power to regulate tlie sale of fruits is conferred bytlic Legislature upon the City Council of 2Tew Orleans, quite as clearly as that of the sale of vegetables and iish. Both are within their dominion and control, and their regulation is within their legislative discretion.
    APPEAL from the Civil District Court for the Parish of Orleans. YoorMes, J.

      Sumióla & Hueros for Plaintiffs and Appellees.

      Oarleton limit, City Attorney; Thos. MeC. Ilyman, Assistant City Attorney, and Franlc N. Butler, for Defendants and Appellants.
   The opinion of the Court was delivered by

Watkins, J.

The several plaintiffs — Anna Gossigi, Antonio Mareoluso, Louis Fernia.and Vincenzo Marcido — residing at different localities in this city, are engaged in the daily sale of meats, ñsh, friáis and vegetables, admittedly within six squares of different public markets of the city, and clearly within the terms and provisions of an act of the Legislature, and an ordinance of the city, prohibiting the exercise of such a calling within that limit.

They sued out an injunction, restraining the city from interfering with their business, and based it on the ground that their business is legitimate, and carried on in a clean and healthy manner; but that» notwithstanding it is so conducted and carried on, the City Council of New Orleans passed and promulgated Ordinance No. 4798, A. S., whereby petitioners are prohibited from carrying on same within six squares of any public market of said city.

They represent that said ordinance was not passed in the exercise of the police power of the State, to protect health, or any public interest» for the reason that there was not, and does not now exist any reason, in a sanitary point of view, or otherwise, why this business should thus be prohibited, but that it was simply passed to carry out a contract with Henry Larquie, representing himself and other persons in the lease of the public markets of New Orleans, at an exorbitant price, by closing petitioners’ business, with others, and driving them into the public markets to enhance their revenues. That said council can only regulate and not prohibit, and thus create a monopoly in favor of the public market lessees.”

The petitioners then make this averment, viz:

That in furtherance of said purpose, Henry Larquie has leased all the public markets of the City of Neiv Orleans, under a contract and agreement with said city, by which said city has bound herself to him to close the sale of all fruits, vegetables and oysters within three squares of any public market, in consideration of the sum of $185,000 per annum, for three years, and that, under the contract made under said ordinance, said Henry Larquie, lessee, assisted by said city, is enforcing said contract by the arrest, and fine or imprisonment of petitioners, for carrying on their said business * * without any authority, and in violation of the Constitution of the State,.by creating a monopoly in favor of said city and Henry Larquie, lessee, in the sale of the marketable commodities mentioned; and by, also, depriving them of their property, and the destruction of their liberty, and equal rights to pursue their business, and live, as others doing' the same business, and which is, likewise, in violation of the Constitutions of the State and of the United States.”

The prayer of their petition is that the city and Henry'Larquie, lessee, be enjoined, and prohibited from interfering with, or preventing them from carrying on their said business at the places and localities specified.

Henry Larquie, lessee, took a rule on the plaintiffs, for various reasons set out in his motion, to show cause why the injunction should not be dissolved as to him; and among the causes assigned was that of “no cause of action.” Subsequently, counsel for the plaintiffs, on their own motion, caused the injunction to be “ dissolved and set aside as to Henry Larquie, one of the defendants, without any prejudice to any rights said defendant may have in the premises.”

The city, in her answer, avers that each one of the plaintiffs “are carrying on business as private marketmen, and engaged in dealing in vegetables, fruits and other comestibles, contrary to law and the ordinances of the City of New Orleans — more especially the Act of the Legislature known as Act No. 100 of 1878, and the ordinances of the City of New Orleans respectively designated and identified by the numbers 4798, Administration series, and 2024, Council series. * * * That plaintiffs, each and all, x^ersist in disobeying the said laws, defying the authority of the City of New Orleans, and that the said x>laintiffs and their sureties should be condemned in' damages, etc.”

On the trial there was judgment in favor of the city dissolving- plaintiffs’ injunction, and decreeing' the resx>octivo plaintiffs to remove their X>laces of business beyond the radius of six squares from any and all Xrablic markets, and to discontinue any business such as they have been “carrying on, except that of selling fnúis.”

From this judgment the city x>rosccutes this ax>peal.

As the case now stands, with Henry Larquie left out, we have nothing to do, and cannot deal with the contract the city is alleged to have made with him as lessee of the xmblio markets, nor with any of the grants 'or concessions the City Council is alleged to have made to him; and there is no other question in the case excexff the one as to whether private markets for the sale of fruits can be lawfully kept within a radius of six squares of a x>ublic market.

We can see no reason why the sale of fruits should not come within the dominion of the City Council, quite as well as that of vegetables, or fish. Over ripe or partially decayed fruits are certainly quite unwholesome, and should not be allowed to be sold at all, as they are very dangerous to the health of the populace, if used in such condition.

The power conferred upon the City Council in respect to the regula tion of private markets, is within their discretion, and it is practically unlimited, for the act of the legislature provides “that the City Council of the City of New Orleans be and they are hereby authorized and empowered to make such arrangements and pass such ordinances for the government and regulation of private marlcets in the City of New Orleans as they, in their discretion, may deem proper, and that they be vested with full power to provide for the enforcement of their said ordinances.” Section 2 of Act 100 of 1878.

In the exercise of their discretion the City Council enacted Ordinance No. 4798, A. S., which provides “that private markets for the sale of meats, fish, vegetables, fruit and other comestibles maybe opened and kept in any portion of the City of New Orleans not within a radius of six squares, etc.”

Tims, it is quite plain that the City Council intended to exercise its discretionary irower in respect to the sale of fruits, quite as well as in reference to fish and vegetables, and has placed them all in the same category and assigned to them precisely the same limits. Of course, in passing this ordinance, they intended it to be a regulation of the trade in the articles specified, and had in view the management and conduct of such a business or calliug in any part of the city. It does not niatter, in the least, that plaintiffs’ business or calling was perfectly legitimate, and conducted in a clean and healthy manner. Its control is clearly within the competency of the City Council, and they had the undoubted authority to enact the ordinance restricting the pursuance of such a calling within the limits designated.

We are cited to Act No. 116 of 1883 as having repealed Act No. 100 of 1878, above quoted. That is true, but the former re-enacted, in terms, the provisions of the latter, which are given svpra. The only material alteration it makes is with reference to the distance from public markets, within which private markets may be established. That act is quite sufficient to continue the provisions of Ordinance No. 4798, A. S., in full force and efficacy.

That part of the judgment which excepts tho sale of fruits Rom the operation and effect of the law and ordinance of tho city is erroneous and must be amended.

It is, therefore, ordered and decreed that the judgment appealed from be so-amended as to reject tho plaintiffs’ demands ■in tota, and to dissolve their injunction at their costs in both courts.


text:
    No. 10,376.
    State of Louisiana ex rel. Agnes Stinson vs. W. B. Murphy, Recorder.
    1. If, in a prosecution, under a city ordinance, in a recorder’s court in tlie City of Row Orleans, there is a bona fide and timely contestation in regard to its legality and constitutionality, antecedent to trial had, or judgment being in'onotuieed thereon, the condemned defendant is entitled to an appeal, and, upon his distinct and emphatic, refusal thereof, mandamus will lie against him to compel its allowance.
    2. A recorder’s court in the City of Row Orleans, is not a court of record, and there is no legal prohibition against a defendant, in a cause therein depending, from urging pleas or defenses orally.
    APPLIGATION for Certiorari, Mandamus and Prohibition.

      McMahon <& Pratt for the Relatrix.
   The opinion of the Court was delivered by

Watkins, J.

The petition of the relatrix assigns the following grounds of complaint against the respondent, as entitling her to relief, viz:

That she was arrested on a charge of having violated Ordinance No. 7141 A. S. of the City of New Orleans, relative to persons keeping houses of ill-fame or prostitution; that, on the 14th of April, 1889, upon the trial of said charge before the respondent, her counsel tendered a motion to quash and set aside the proceedings, on the ground that the court had no jurisdiction of said cause, for the reason that a statute had been enacted by the General Assembly, upon the same subject-matter as that covered by said ordinance, and whereby it was superceded and rendered inoperative j and if not superceded, same was in violation of Article 2 of the Constitution, and therefore void; that notwithstanding the timeliness of the offering- of said motion, it was arbitrarily declined by the respondent, who refused to permit same to bo filed, and at once proceeded to hear, determine and adjudge the case against her, and sentenced her to pay a fine of twenty-five dollars, or, in default of payment, that she should be imprisoned for thirty days; and that, she applied for a suspensive appeal to this court, and said application was arbitrarily and illegally denied.

Therefore she avers “that writs of mandamus and certiorari are necessary in the premises, and that unless granted, she will suffer an irreparable injury,” and she prays for their issuance, and asks that the respondent be prohibited and restrained from any further proceedings • in the case, during the pendency of this suit.

Her substantial and affirmative declaration is “ that the action of the court aforesaid amounts to, and constitutes a denial of justice,” from wliicli she is entitled to relief at our hands.

The respondent returns that he transmits the original affidavit against the relatrix, with the judgment thereon indorsed, and avers '' that the same constitutes the sole and only paper of record in the case before him,” and he denies that a motion to quash was ever presented to him on the trial of the case, and was only presented after the trial, and when judgment had been rendered, and that, for that reason aldne, he declined to permit same to be filed.

But he admits “that during the progress of the trial before him, the relatrix’ counsel excepted to the jurisdiction of the court, and the legality and constitutionality of the ordinance, but did not offer to file any paper or document.”

From this it appears there was a bona fide and ti nely contestation ” in the respondent’s court, antecedent to trial and judgment, in respect to the constitutionality and legality of the ordinance under which the relatrix was being prosecuted. That these objections were not formally reduced to writing and tendered to the court for filing before the trial, or at all, is of no significance, because the respondent’s is not a court of record. No part of the proof or pleadings are reduced to writing or filed in a recorder’s court.

That this motion was made orally before the trial, furnishes no sufficient reason why it should not have been considered by the respondent. The same was formally brought to his attention seasonably and in due time for his consideration of it, and it was his duty to have passed upon the plea. There was a contestation raised upon this issue. Doubtless the subsequent preparation of the written motion, and its tender for filing, were only intended to serve the purpose of an appeal, or of the present application.

City of New Orleans vs. Hill, 32 Ann. 1161, and State of Louisiana vs. Tsni Ho et al., 37 Ann. 50, cited by the respondent, are inapplicable to this case, because there was no controversy in the recorder’s court from which those appeals were prosecuted.

In the latter the court employed this language, viz:

“It is obvious that tlie 'contestation’ referred to in the Constitution must have existed in the lower court, and the fact of its existence must affirmatively appear on the face of the record.”

The case of State ex rel. Lamarque vs. Recorder, 39 Ann. 319, rests mainly on the fact that the relator had idead guilty and after sentence had voluntarily paid the fine. The opinion is conclnded with this observation, viz j

The payment made without qualification, must be viewed as made voluntarily. C. P. 567. Under such oircumstances-the relator must be denied the right of appeal.”

Belatrix has fully shown her right of api>eal from the adverse judgment and sentence pronounced against her. If, in fact, the ordinance under which she was prosecuted was or is illegal and unconstitutional, the judgment and sentence thereunder pronounced by the respondent are void, and her punishment unwarranted. She is clearly entitled to an appeal therefrom, suspensively or devolutively, if she contested tlie constitutionality or legality of the ordinance in due time — in ample time for the respondent to have examined and decided this issue. This was done, and we think it was error on the part of the respondent to have declined to permit an appeal from the judgment he rendered. The law, in its kindness, “ favors the liberty of the citizen,” and the prosecution of appeals allowable under its provisions. State vs. Labatut, 39 Ann. 513.

The certiorari has served its purpose in bringing up the original record, and the prohibition, likewise, in restraining the execution of the judgment complained of.

The writ of mandamus must, therefore, be made peremptory.

It is, therefore, ordered and decreed that the relief prayed for he granted and the writ of mandamus be made peremptory, commanding the respondent to grant an appeal in favor of the relatrix in the suit, and prosecution entitled the State vs. Agnes Stinson, alias Robinson, on compliance with the provisions of law applicable to appeals, and that he be taxed witli cost.


author: McEnery, J.

text:
    No. 10,306.
    Nicholas Moniotte vs. F. O. Lieux et als.
    "Wliere property is purchased during tlie existence of the community, and after the dissolution of tlie community the title is perfected by the survivor paying the purchase price, tlie property belongs to the community, and the purchase price so paid is a community debt.
    A mortgage debt resting on property acquired during tlie community, and discharged by the succession after the dissolution of the community, is a community debt. Interest, after the dissolution of the community, must be paid by the usufructuary.
    Whore a part of the record in a suit -which was compromised is offered to prove the judicial admission of one of the parties to the suit, it is competent for the other party to offer the compromise in evidence to show the final disposition of the suit and the matters settled by the compromise and which were at issue in the litigation.
    APPEAL from the Fifteenth District Court, Parish of Pointo Coupée. Senyple, J. *

      O. O. Provosty and Thomas II. Kewes for Plaintiff and Appellant.

      L. B. Claiborne for Defendants and Appellees.
   Tlie opinion of the Court was delivered by

McEnery, J.

Constance Collins, the wife of Paulin Deplaigne, died in 1867. There were left, as issue of her marriage, four children. One of them, Marguerite, soon after her mother’s death, married the plaintiff in this suit. Mrs. Nicholas Moniotte died in 1869, leaving issue of her marriage with Nicholas Moniotte, an infant daughter, Mélicie, who died in 1883. Tlie plaintiff, inheriting from this child, brought suit for her interest in her grandmother’s succsesion.

Constance Collins’ succession, at her death, on the application of her husband, Paulin Deplaigne, was regularly opened, and in January, 1868, an inventory of her succession was made.

The two tracts of land comprising the Grand Bay Plantation were included in the inventory as community property, and appraised at $8400. The personal effects in the inventory do not figure in this suit, as by admissions in the inventory they are shown to be no longer in existence, the mules having long since died, and the other movable effects are worn out or are valueless. There was in the inventory an item of $6000 cash.

Paulin Deplaigne died in 1887, and the Grand Bay Plantation was inventoried in Ms succession as his separate property.

The defendants, the heirs of Constance Collins and Paulin Deplaigne, plead a general denial, and also F. O. Lieux, the administrator of the succession of P. Deplaigne.

Defendants waive the exceptions they have filed, and the plaintiff practically abandons his demand for the annulment of the sale under an order of court, of the Grand Bay Plantation, to F. O. Lieux, the administrator. The questions to consider are whether the Grand Bay Plantation belonged to the community, the amount of the community after deducting debts, and whether there is any sum of money due the plaintiff from the succession of Constance Collins.

The Bay Plantation was acquired by Deplaigne during the existence of the community, from A. L. Mahondcau, on the 5th November, 1865.

The property, when acquired, was mortgaged to the Police Jury of Pointe Coupée Parish for $3900, with interest, from first day of April, 3 860. A. L. Mahondeau died in 1882. Marguerite Villey, his universal legatee and testamentary executrix, brought suit against Deplaigne to recover and bring back into tlie succession of Mahondeau the Grand Bay Plantation, on the ground that the sale to Deplaigne was not real, but simulated. A counter letter was given to Mahondeau by Deplaigne, which recited that the sale was simulated, and the plantation remained the property of Mahondeau, and that the four notes given, as stated in the act of sale, should remain deposited in the hands of a third party. Deplaigne, in his answer and defense to the suit, and his heirs, the defendants herein, and the plaintiff, as tutor of his daughter, Mélicie, in their intervention, maintained the verity and reality of t¿he sale. The suit did not proceed to a final-judgment, but was compromised by Marguerite Villey making a sale of said plantation to Deplaigne for the sum of $15,000, the price stipulated in the first alleged sale, and surrendering to Deplaigne the notes given for the purchase price.

The plaintiff offered in evidence the judicial admissions of Deplaigne and the defendants herein to prove that the property was acquired during the existence of the community. The defendants offered the counter letter and the act of compromise or sale, which was objected to by plaintiff on the ground that the judicial admissions of the defendants could not be condradicted. The objection was sustained. The evidence should have been admitted. The plaintiff had offered a part of the record in the suit, and it was competent for the defendant to show its final disposition. If a judgment had been rendered, there can be no doubt of its admissibility as evidence to show what had been determined in the case. The compromise as between the parties, including the plaintiff in this suit, had as between them the force and effect of a judgment, and it is admissible to show the fact which was at issue in that suit, the status of the property in controversy.

Deplaigne had the Bay Plantation inventoried as community property in the succession of his wife, during the lifetime of A. L. Mahondeau. He maintained the verity of the sale; his heirs declared the same thing, and the plaintiff, as tutor of his daughter, from whom ho inherits, also declared the same fact, in the suit of Mahondeau, Ex., vs. Deplaigne.

Mahondeau never claimed any interest in said property, demanded the rents or revenues, or in any way interested himself in it, after Deplaigne took possession of it. Deplaigne, in his answer to the above suit, explained the circumstances of his acquiring the property. He states that for certain reasons explained by him, after the sale, it was agreed with Mahondeau that the property should bo his. It is significant that the price paid for the property by the compromise was the same as in the simulated sale, and the notes were returned to Deplaigne.

We are inclined to place the interpretation upon the transaction that the parties have themselves placed upon it: that the property was purchased by Deplaigne during the community, and that he had agreed to pay $15,000 for it on the return of his notes given for the price.

The compromise will bear no other interpretation, and it is immaterial whether the understanding was had at the time or subsequently, during the existence of the community. A simulated sale can be made a real one by agreement. The price paid for the plantation, $15,000, was a debt contracted during the community.

The title to the property was perfected by paying the price of the sale, and it became community property and the price a community debt.

The work animals and other movable property on the Bay Plantation at the time of the death of Deplaigne, form no part of the community which existed between Deplaigne and wife.

All of the animals belonging to the community, from long service and natural causes, died during the life of Deplaigne, and the other movable property in the inventory of the succession of Constance Collins have been worn out by ordinary wear incident upon their use.

Neither Deplaigne, or his legal representative, are bound to replace the property.

Suit was brought against Mahondeau as principal and agent, Deplaigne and others, to enforce the mortgage on the Bay Plantation in favor of the Police Jury of Pointe Coupee.

Judgment was rendered against them.

Deplaigne paid this mortgage debt, principal and interest, and it enured to the benefit of the community, by relieving the property of a mortgage which rested on it when it was acquired by the community, and it must bear this charge, as well as the price of $15,000, for the perfection of the title to the Bay Plantation.

When Deplaigne died the value of the crop on the Bay Plantation was valued on his inventory at $7000. This must be returned as community property with the plantation.

The assets of the community will then exist as follows:

Cash.....................................................$' 6,000 00

Yaluo of Bay Plantation at the death of Deplaigne.......... 24,000 00

Crop on same.........................-.................... • 7,000 00

$37,000 00

From this amount deduct out of community debts: Fifteen thousand dollars ($15,000), the price of the Bay Plantation, and nine thousand eight hundred and sixty-four dollars and-twenty cents ($9864 20), the mortgage debt on said plantation paid by Deplaigne, and the balance, twelve thousand one hundred and thirty-five dollars and eighty cents ($12,135 80), represents the amount in the succession of Constance Collins to be distributed.

The share of the minor, Mélicie, to which plaintiff is entitled, is one-eighth of said amount — one thousand five hundred and sixteen dollars and ninety-seven cents ($1516 97).

There are claims and counter claims set up between plaintiff and Deplaigne which it is not necessary to notice, as they are irrelevant, as this suit can only determine the interest of the deceased minor in the succession of her grandmother, to which interest her father has succeeded.

The claims for the support, maintenance, education, etc., of the minor, Mólicie, cannot be allowed as a credit to the amount due her in the succession of her grandmother. Deplaigne, the grandfather, either took the minor to support and educate at his own expense, or to expend for this purpose money out of her revenues, with consent of the tutor. The record shows she had no revenue from her property, and the grandfather could not do what the law forbids the tutor from doing: expend and exhaust the capital of the minors.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended so as to increase the amount allowed plaintiff to one thousand five hundred and sixteen dollars and ninety-seven cents ($1597 16), and as thus amended it be affirmed, defendants to pay costs of appeal.

On Application nor Rehearing.

There is only one point necessary to consider on the application for a rehearing. It will be unnecessary to reopen the case to correct the error. In the decree interest was allowed on the mortgage debt due the Police Jury, after the dissolution of the community. The principal and interest of said debt to the time of the death of Constance Collins only should have been charged to the community.

The principal interest at the dissolution of the community amounted to $6000.

It is ordered that the decree heretofore rendered be amended so as to place said mortgage debt as a community debt for said amount, making the amotint to be distributed in the succession of Constance Collins $8271 60, one-fourth of which is the share of the minor, Mólicie.

In other respects the decree remains undisturbed. Suc. Fitzwilliams, 3 Ann. 487.


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    No. 10,373.
    State of Louisiana ex rel. A. S. Badger vs. Recorder of Mortgages et als.
    An orroneous assessment does not make tlie tax illegal or unconstitutional. It may be legal and constitutional although erroneously assessed in the name of one who is not the real owner.
    In such case tho Supreme Court has jurisdiction only when the amount involved exceeds $2000, tlie lower limit of its appellate jurisdiction.
    APPEAL from tlie Civil District Court for tlie Parish of Orleans. Mug, J.

      James O. Moise for tlie Relator anti Appellee :
    1. A suit for the purpose of securing the erasure and cancellation of tax assessments liens, privileges and inscriptions, from the hooks of the Recorder of Mortgages and Comptroller of the City of How Orleans, on the ground that tho property was erroneously described on the assessment rolls, and was listed in the name of ono not the ownor of tho property, is not a suit in which the legality or constitutionality of tho tax is in contestation, and hence the jurisdiction of tlie Supreme Court is to bo tested by tho amount involved. 39 Ann. 900; 37 Ann. 899, 507; 36 Ann. 286, 36á, 801; 33 Ann. 286; 32 Ann. 817; 35 Ann. 965 ; 38 Ann. 231, 99; 33 Ann. 286; 32 Ann. 818.
    2. The constitutionality of no law has been raised as ail issue in this case, hence no su6h question can bo considered. 26 Ann. 753.
    3. The amount involved being but $523 66, this court has no jurisdiction. Article 81. Constitution.
    IF. 33. Sommerville, Assistant City Attorney, for tlie Respondents and Appellants:
    An allegation in a cause that certain assessments and tho taxes based thereon are absolute ' nullities, and a denial of such allegations, puts the legality of such taxes in contestation and the Supremo Court has appellate jurisdiction thereof. 36 Ann. 812 ; 33 Ann. 286.
   On Motion to Dismiss.

Tho opinion of tlie Court was delivered by

McEnery, J.

The relator in a mandamus proceeding prayed for the cancellation of tax inscriptions which were made against property purchased by him, for the years 1881, 1882. Tlie allegations in the petition are “that said taxes and tax inscriptions are clouds upon the title of the property herein, and should be annulled, cancelled and erased as being grossly erroneous as to description in the assessment rolls; as being absolute nullities as being assessed in the name of one not the owner; and as having been prescribed.”

From an adverse judgment the City of New Orleans appeals.

The relator asks that the apipcal be dismissed because there is no contestation as to the constitutionality or legality of the tax, and the' amount involved is .$533 66, below the lower limit of the jurisdiction of this court.

It is evident that the only issue between the parties to this litigation is as to the manner of the assessment. The assessment may be erroneous and the tax constitutional and valid. Bush & Levert vs. Police Jury, 39 Ann. p. 900; 37 Ann. p. 898.

The amount involved is $533 66. As the constitutionality and legality of the tax is not at issue and the amount is loss than $¿000, this court has no jurisdiction of the demand.

It is therefore ordered that this appeal be dismissed at appellants’ costs.


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    No. 10,346.
    State of Louisiana ex rel. Hugo H. Fredericks vs. Board of Assessors.
    Wlioro tlie principal lousiness of a manufacturer is the making of machinery and other articles used in the preparation of an agricultural product of this State for market, the property used for the manufacture of these articles is exempt from taxation, although the property may he incidentally employed in the manufacture of other articles, not included iu Art. 207, hut of a like kind.
    APPEAL from the Civil District Court for the Parish of Orleans. milis, J.

      Olías. Lougrue for the Relator and Appellee.

      T. Mo. O. Ilyman and Wynne Iiogers for Respondents and Appellants.
   The opinion of the Court was delivered by

McEnery, J.

This is a mandamus proceeding to compel the Board of Assessors of the parish of Orleans to erase and cancel the assessment of certain property against the relator, on the ground that it is used in the manufacture of articles which exempts it from taxation by Art. 207 of the State Constitution. He employs more than five persons in the manufacture of the articles alleged to be exempt from taxation. There was judgment in the lower court in favor of the relator ordering the Board of Assessors to cancel the assessment, and the State Ta.x Collector and the City Treasurer to cancel from their books the taxes for the year 1888, against said property.

The relator carries on the business of brass and sheet iron worker. He manufactures steam trains, for making sugar, shake pans and evaporators, clarifiers, juice tanks, breeching, fire bricks and steam and water x>ipes, all of which are used in the machinery employed for the preparation of an agricultural prokuct, raised in this State.

He also manufactures turpentine stills, distillery and brewing work, which are incidental to the manufacture of the other articles, which is his principal business.

The relator, in the absence of a constitutional prohibition, can employ his projierty for both purposes. The constitutional provision exempting the property used in the mauufacture of certain articles, does not exclude the employment of the property to other and intimately associated purposes. The reason for the adoption of Art. 207 was to encourage the manufacture of certain articles therein enumerated, and when the object has been attained, which the provision of the article intended, by the manufacture and production of these articles, the property has accomplished the purpose and should be exempt from taxation. Martin vs. N. O., 38 Ann. 398.

We conclude that the principal business of the relator is the manufacture of articles used in the preparation of an agricultural product of this State for market, and that the manufacture of other articles in his establishment are intimately connected with the principal business which he carries on, and that the manufacture of these articles does not destroy the fight of relator to have his property exempt from taxation when it is employed in the manufacture of articles enumerated in Art. 207.

Judgment affirmed.


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    No. 10,375.
    Hope & Co. vs. The Board of Liquidation.
    The State Board of Liquidation, in order to carry out the objects and purposes for which it was created, has the inherent power to make rules and regulations prescribing the mode of procedure before it, provided they do not contravene the Constitution and laws of the State. And during the existence of said rules, it is not in the discretion of the hoard to suspend the rules to suit a particular case. Therefore, persons holding claims which are fundable must comply with the rules and regulations of the Board of Liquidation, and cannot expect the board to suspend its rules so as to do away with the requirement to file the claim with the Auditor on the blank form to be furnished by him.
    APPEAL from tbe Civil District Court, Parisli of Orleans. Mils, J.

      Henry Denis and Farrar, Kruttsehnitt & Jonas for Plaintiffs and Appellants :
    TIio Funding Law does not provide tliat the demand of the "bondholder for funding should bo made of the Board of Liquidation in any particular manner or form. If tho bonds to be funded are questioned or questionable, tho Supreme Courtis the sole arbiter of their fate-The refusal of tho board to pass upon them is a questioning of their validity, and equivalent to their rejection. Acts Ho. 3 of 1874 and Ho. 11 of Extra Session of 1875; State ex rel. Meyers vs. Board of Liquidation, 33 Ann. 124.
    Tho Funding Law is an offer of compromise by the State to bcr creditors, which she is desirous that they should accept, and which she accompanies, for that reason, with inducements of an extraordinary character. Board of Liquidation vs. McComb, 92 IT. S. 539.
    The refusal of the board to pass upon plaintiffs’ demand is a failure of tlieir duty and an obstruction of the law, which the act forbids undor heavy penalties. Act Ho. — of 1874, Sec. 10.
    Conditions precedent cannot bo made to depend upon the will of tho party who imposes them. They are waived if their performance is rendered impossible by that party himself. G. C. Arts. 2034-5; Wharton's Contracts, Yol. 1, Sec. 603 ; Peck vs. United Stales, 102 U. S. 64.
    Agents of the State cannot idead their own wrong. Tho doctrine of estoppel applies to them, as it applies to tho State herself. 28 Ann. 122; 28 Ann. 460.
    Tho Board of Liquidation cannot be mandamused to fund the bonds. 29 Ann. 264; 29 Ann. 690.
    Hor to meet and pass upon tho bonds, inasmuch as they have necessarily some degree of discretion in that respect. State ex rel. Daboval vs. Police Jury, 39 Ann. 759; State ex rel. Johnson vs. llightor, Judge (not yet published).
    Tho Governor cannot be mandamused as such. State ex rel. Oliver vs. Governor,, etc., 22 Ann. 1.
    The Governor, in relation to tho Board of Liquidation, is only a member thereof, and cannot control it, inasmuch as the Funding Law provides that a majority of said board shall be required to perform an oilicial act. Act Ho. 11 of Extra Session of 1875, Sec. 3.
    The Funding Law has, by specific provisions, put the execution of the funding scheme and reduction of the public debt in the hands of a special body, created for that purpose, tho Board of Liquidation, and has, thereby, taken away that important matter from the Executive Department of tho State. Acts Ho. 3 of 1874; Ho. 11 of Extra Session of 1875; Ho. 58 of 1877; Ho. 77 of Extra Session of 1877; Ho. 103 of 1888.

      Walter H. Rogers, Attorney General, for Defendants and Appellees:
    Ho right of action exists under provisions of Act Ho. 3 of 1874 to determine the validity of bonds of tho State of Louisiana issued prior to 1874 — until said bonds have been duly presented to the “ Board of Liquidation ” and i>assod upon by said board. 31 Ann. 273.
   Tlie opinion of tlie Court was delivered by

McEnery, J.

Tlie plaintiffs brought this suit to have declared legal and valid obligations of the State, and to have funded into constitutional bonds 9042 bonds, each for the sum $444 44, issued in pursuance of Act approved 3d January, 1836.

The prayer of the petition is “ that there may bo judgment in petitioner’s favor against said Board of Liquidation and against tho State of Louisiana, as represented by said board, decreeing and adjudging that the 9042 bonds held by your petitioners, as aforesaid, and issued to the Citizens’ Bank, as aforesaid, are valid and legal obligations against the State of Louisiana ” 11 * * * * * * * * And ordering and commanding the said Board of Liquidation to receive the said bonds and the coupons thereof from your petitioners and to issue and deliver to them in exchange thereof consolidated bonds of the State of Louisiana to the amount of $2,411,175 88.”

The State, through the Board of Liquidation, filed several exceptions to the suit, only one of which was passed upon by the judge a quo. Tlio exception that no demand was made upon the Board of Liquidation was sustained and the suit was dismissed.

The plaintiffs, through their attorneys, addressed the following communication to the Board of Liquidation :

To the Honorable Tlio State Board of Liquidation:
Gentlemen — I am commissioned by Messrs. Hoi>e & Co., of Amsterdam, to demand of you to fund and exchange for consolidated bonds of Louisiana, under provisions of Act Ho. 3 of the Legislature of 1874, nine thousand, and forty bonds of the Biabo of Louisiana, each for the sum of $-144 44, issued under tlio terms and provisions of an Act of January 30, 183(5, payable to the order of, and indorsed by the president and directors of the Citizens’ Bank of Louisiana.
L respectfully request an early answer to the demand of my clients, and remain, gentlemen,
Very truly, yours,
HEHttY DEHIS, Attorney.

The board not being in session could not act by individual vote of its members and fund the bonds, as requested. The secretary of the hoard could very well have ignored this extiaordinary request, and, without violating any rules of propriety, could have abstained from replying to the same.

. But the Auditor of the State courteously replied to the communication, as follows :

State oe Louisana, Auditor’s Office, > Baton liouge, January 24, 1889. )
Mr. Henry Denis, Attorney at Law, 173 Common Street. How Orleans, La.:
Dear Sir — Your favor of the 21st instant, in reference to bonds issued under an Act of 183(5, payable to tlio order of and indorsed by tlio president and directors of the Citizens’ Bank of Louisiana, will be submitted to tlio Board of Liquidation at the next meeting.
There being no business before the board at tlio time, 1 can not say when there will ho a meeting, probably not before April or May next.
Yours, truly,
O. B. STEELE,
Auditor and Bx-Officio Secretary of Board of Liquidation.

A letter was addressed to the Governor of the State, in which the attorney for Hope & Co., says:

I have received an answer from the Auditor of the State and ex-officio Secretary of the Board of Liquidation, informing me that there being no business before the board at this time, he cannot say when there will be a meeting, probably not before April or May next.
“ Considering the importance and magnitude of the matter to bo laid before the board in the demand of Messrs. Hope & Co., I respectfully request jrour Excellency to call a special meeting of the board to that effect. Very truly yours, Henry Denis, Attorney.”

The Governor did not reply to this communication, and did not call a special meeting of the board.

The attorney for Hope & Co., after this letter was written to the Governor, addressed a communication to each member of the Board of Liquidation, in which he says:

Considering that the action of the board in the premises, through its president and secretary, is a clear evasion of the law, I respectfully notify you that after the 1st of March, 1889, if the board, in the meantime, has not met and passed upon the demand of Messrs. Hope & Co., I will commence legal xirocoedings against it and deem its refusal as equivalent to a refusal to fund the bonds in question.” In view of the fact that the plaintiffs had a clear and unequivocal way of proceeding to have their bonds x>assed upon by the Board of Liquidation, it is clear that the above communications could not be reasonably construed as a formal demand within the meaning of the law and as evidence of refusal by the board.

The funding laws, in creating the Board of Liquidation, and conferring upon it powers and duties to fund and exchange for others certain bonds and warrants, described in Act 3 of 1874, did not prescribe any rules or mode of xirocednro by which the board should regulate its own proceedings, and the mode and manner in. which the claims should be X>resented and prosecuted to final action.

It had, therefore, in order to carry out the objects and x>urposes of its creation, the xiower to make rules and regulations as to the mode of x>rocedure before it, and the manner and form in which claims should be presented for its consideration. The Board of Liquidation, in this resx>ect, is like a court of record, and every court of record has the inherent power to make rules for the transaction of its business, and to alter, amend or repeal them, x>rovided they do not contravene the Constitution and laws of the State. And while in force theji must be aqiplied to all cases alike which fall within them. It was not, therefore, in the discretion of the Board of Liquidation, any more than in that of a court, to suspend its rules in its discretion to meet a x>articular case, unless such .discretion is authorized by the rules themselves.

In 1877, the Board of Liquidation, by resolution, established a rule that applicants for funding claims against the State, under its laws, must file them, on blank forms, prepared for the purpose, with the Auditor of Public Accounts, who is ex-officio secretary of the board. This rule is a law to all partios who transact business before’the board. It is a maxim “the practice of the court is the law of the court,” and in tins respect the rules and regulations of the Board of Liquidation are as binding on all those who apx>ly to it for relief as the rules of court are upon litigants.

The want of knowledge, on the part of the attorney of Hope & Co., of the rules of the Board of Liquidation as to the manner in which claims should ho presented, is no excuse for a non-compliauco with them.

Without having complied with the mode of procedure established by the hoard, the plaintiffs’ attorney notified the board, and each member thereof, they had bonds which they wanted funded, and demanded a special session, in their interest, to fund said bonds.

With equal propriety a litigant might withhold his petition from the docket of the court, and ask the judge to give him a judgment when he deemed it convenient to present his claim.

The only reason assigned for- the exceptional demand made by the plaintiffs on the Board of Liquidation is the importance and magnitude of the demand, which is in the vast amount involved. The law takes no account of the greatness of the demand. Gold and copper weigh alike in the scales of justice.

'Plaintiffs claim that the failure of the board to meet in special session to consider and pass upon their demand is equivalent to its rejection. The Board of Liquidation has been in existence for fourteen years, and as we understand, holds sessions for the funding of obligations, when there is business sufficient to justify the same.

Plaintiff’s claim had never been filed, and was not, therefore, before the board, and he has no reason to complain of inaction. There was no occasion for a meeting of the hoard, as from tlie Auditor and ox-officio secretary of the board’s statement there were no claims on file for consideration.

Plaintiffs contend that their bonds are “ questioned,” and, therefore, they have a right to sue under Act 11 of 1875, without having first presented them to the Board of Liquidation.

Previous to the Act 11 of 1375, parties holding rejected bonds or warrants had no remedy.

Act 11 authorizes a suit on questioned ” bonds or warrants. It is not every rumor, statement, or suspicion that can axrthorize a resort to the courts; and because obligations arc questioned is no reason why they should not he presented to.the Board of Liquidation for action. Claims must ho presented to the Board of Liquidation and passed upon before there can he a judicial inquiry. The State lias given permission for a certain class of obligations to be presented by the holders of them to Louisiana courts for determination as to their validity, and thus, in authorizing suit against herself, she has pointed out the channel through which it must reach the courts and it must he followed.

Any taxpayer is authorized by Act 11 of 1875 to bring suit against the Board of Liquidation to test the validity of any bonds issued by the State on warrants drawn previous to the passage of Act 3 of 1874.

If the bonds or warrants arc rejected by the board, it is clear the taxpayer lias no interest in the bringing of the suit. This right to sue the hoard is, therefore, dependent upon the action of the hoard, and the bond or warrant must have been presented to the board and favorably acted upon, by it. And tlie board must take some action adverse to the bolder of the bond or warrant before Ids right accrues to test the validity of Lis claim. For those bonds and warrants which are not questioned in Act 11 of 1875, the fact of their validity must be raised by tlie Board of Liquidation by its favorable or unfavorable action.

The right to sue to test the validity of these must spring from the board. The bond or warrant holder certainly has no cause to complain and consequently no cause of action if his bond or warrant is ordered funded and exchanged.

The bonds of the plaintiffs have not boon presented to the Board of Liquidation and have not been rejected by the hoard. They are, therefore, not entitled to an order commanding the hoard to fund and exchange said bonds for consolidated bonds, because the board lias not refused to do that which they are now asked to do. Bartlette vs. Board of Liquidation, 31 Ann. 573.

Judgment affirmed.


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    No. 10,361.
    State of Louisiana ex rel. City of New Orleans vs. A. Voorhies, Judge of Civil District Court for the Parish of Orleans.
    Prohibition lies to a District Court to prevent it. from passing, as an appellate court, over city courts, upon questions involving tlie legality or constitutionality of a tax anti a title to real estate.
    A demand that such property when assessed, be declared exempt from taxation, implies a prayer that tlie taxes which would thereupon bo claimed as duo thereby, bo adjudged to bo illegal. It involves the constitutionality of a tax»

      The judgment of a city court in such case is not appealable to a District Court, though it have ax>pollato jurisdiction over city courts, but such judgment is reviowable as to facts and law under tho Constitution exclusively by the Supreme Court of the State.
    Tho jurisdiction of a District Court, exercising original jurisdiction, is quite different from that with which it is vested when it sits as an appellate court over city courts.
    "When tho District Court exercises original jurisdiction, it may pass upon questions relative to tho title to real estate and to the legality or constitutionality of a tax, but when it sits as an appellato court it can do neither.
    An exception to its jurisdiction ratione materice may bo filed at any stage and want of .jurisdiction can be noticed by the court proprio 7notu, at any time, without plea.
    Consent cannot confer jurisdiction when the court has none ratio7ie materice.

    yf^PPLICATION for Prohibition.

      W. B. Sommerville, Assistant City Attorney, for tho Relator,
    Respondent in propria persona.

   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a Prohibition.

The complaint is that the district judge, over the- objections of the relator, has persisted in entertaining jurisdiction over a controversy decided by a city judge, from whose judgment an appeal lies to this court and not to the District Court.

The respondent judge denies any usurpation of authority and undertakes to vindicate his course.

It appears that a suit was brought before the First City Court, by a husband and Ms wife, in which the former claiming to be tho owner of certain improved real estate, in the name of the latter, avoring that the same, though exempt under Art. 307 of the Constitution, had been assessed at $3000, prayed contradictarily with the Board of Assessors, that the property he declared exempt and that the assessment bo can-celled.

Prom a judgment adverse to the plaintiff, an appeal was taken to tho Civil District Court for this parish, and the case was allotted to Division E.

An exception was there filed by the City of New Orleans, who had been made party to tho suit below, to the jurisdiction of said court, as an appellate court, resting on the ground, that, as the constitutionality of taxes was involved, the appeal should have been to the Supremo Court of the State.

The exception was overruled and the District Court proceeded to pags upon tlie merits of the case, reversing the judgment appealed from and rendering one in favor of plaintiff.

It is not disputed that the property, represented as exempt from taxation, was assessed as alleged.

If it be true, as averred, that this property is exempt, for the reasons given, it became the right of the owner to appeal to the courts for protection, in order to avert future proceedings for the collection of taxes considered to be illegal, because claimed in contravention of constitutional immunity.

It is apparent that, had the State and city at the proper time, sued to recover the amount of taxes said to bo due as assessed on the property, the defendant owner could validly have set up the facts justifying, a defence of illegality or unconstitutionality of the taxes, and that, from a judgment on that, issue an appeal, on the facts and law, would have lain exclusively to the Supreme Court; for the reason, that the legality or constitutionality of a tax would have been involved. Const. Art. 81; City of N. O. vs. Arthurs, 36 Ann. 98; State ex rel. Bertel vs. Board, 34 Ann. 574; Minden vs. Silverstein, 36 Ann. 56, 912.

Now, instead of being sued, the owner, in apprehension of proceedings for the collection of taxes, brings an action in which he sets up, as a means of attack, that which ho could have urged as a means of defence.

In such case, it is clear also that the demand for exemption implies the legality or constitutionality of the taxes, in consequence of the nullity of the assessment, and that the appeal from the judgment of the city court, ought to have been, not to the District Court, but to this court.

It is true that, after the exception to the jurisdiction of the District Court, as an appellate court, had been overruled, the case was heard and determined on its merits, but this further action is of no consequence, as consent cannot confer jurisdiction.

The district judge says, that the exception to the jurisdiction was filed after submission of the case, and that it was by consent that ho passed upon the merits as to the title of the property.

It. was immaterial when the exception was filed. It could have been at any stage, and want of jurisdiction could have been noticed by the court proprio moin.

Surely, had the amount involved been large enough, the District Court, as a court of origina] jurisdiction, could have passed on all the questions presented, touching both the title to the real estate and the claim to exemption ; but, as an appellate court, it had no greater power than the city court possessed.

Tlmt court could adjudicate nothing on tlie question of ownership of the property, and the District Court, on appeal, could not pass up on the question of the legality or unconstitutionality of the tax in contestation. Such questions arising in the city court, could be finally solved only on appeal, directly to the Supreme Court, to the exclusion of the District Court as an appellate court.

It is proper to observe that the action of the owner claiming exemption, was the more appropriate as there was no prospect of his being sued by the State ox city, who are prohibited from doing so bylaw, and that it was preferable for him to act when and as he did, than to do so, when his property would have been advertised for sale for non-payment of taxes.

It is therefore ordered and decreed that the restraining order made in limine be maintained and that the prohibition aslced be made peremptory.