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

text:
    No. 7964.
    City of New Orleans vs. Poydras Orphan Asylum.
    ■'The laws, in existence at the time oí the adoption of the Constitution of 1868, and by which. all the pL-operty of the Poydras Orphan Asylum were exempted from municipal taxation, without discrimination, were not repealed or affected by article 118 of the same Constitution, whioii provided that 11 the General Assembly shall have power to exempt from taxation property actually used for church, school or charitable purposes.”
    Nor did any subsequent legislation repeal, amend or affect the said laws.

      All the property of the Poydras Orphan Asylum is, therefore, still exempt from municipal taxation, whether yielding an income, or simply used for the purposes of an asylum.
    Rules for the interpretation of Constitutions and Statutes.
    APPEAL from the Fifth District Court for the parish of Orleans. Bogers, J.

      Sam’l P. Blanc and J. Ward Gurley, Jr., for Plaintiff and Appellee.

      U. F Ogden and W. F. Ogden, for Defendant and Appellant:
    (First — A subsequent law, wliicli is general, does not operate tlie repeal of a special law upon the same subject without expressions declaring an intention to repeal, or “unless there be such, repugnancy between them that they cannot both be complied with under any circumstances.” C. C. 17, 23,1946; De Armas, 10 M. 172; Sedgwick, p. 123; Blain vs. Baily, 25 Ind. 165; State vs. Newark, 2 Dutch (hT. X) 519 ; Sedgwick, 2d Ed. 97; 12 M. 697; IN. S. 161; 2 NT, S. 33; 3 N. S. 190; 51. S. 527, 575; 6 L. 135; 7 L. 166; 4 B. 71; 1 An. 54; 2 An. 919; 8 An. 398; 5 An. 121; 6 An. 605; 12 An. 498, 805.
    Second — "Every reasonable doubt as to the intention of the law-maker is resolved against rather than in favor of the retroactive operation of the Statute. Its retrospective features must be the necessary result oí a strict construction of its expressions.” “Wade 35, 58 ; Barb. 161; Pa. 357, 81; 4 Peters 401; 9 W. Va. 162; 23 M. 203; 41 Md. 453; 21 Wis. 268; 15 • "Wis. 548; 21 Conn. 351; 52 Pa. 315; 10 Conn. 77; 29 N. J. 311, 333.
    ‘Third — “The general rules of interpretation are the same, whether applied to Statutes or Constitutions.” Sedgwick, 19; Cooley’s Con. Dim. 63; 3 Ind. 258; 21 NT. X 12 ; 10 O. N. S. 588; Wade on Betrospective Daws, 8, 37; Bishop on Statutory Crimes, § 92; 7 Md. 135; 5 Ind. 557; 5 Md, 337.

      Fourth — The special acts defendant claims have never been repealed.
    An Act for the relief of the Orphan Boys’ Asylum of New Orleans, approved March 12th, 1836, “ that from and after the passage of this act all the property, real and personal, belonging to the Orphan Boys’ Asylum of New Orleans, be and the same is hereby exempted from all taxation, either by the State, parish, or city, in which it is situated, any law to the contrary notwithstanding.”
    No. 96 — An Act for the relief of the Female Orphan Society and for other purposes. Be it enacted by the Senate and House of Representatives of the State of Louisiana in General Assembly convened, That the exemption from taxation passed in favor of the Orphan Boys’ Asylum of New Orleans, by act approved 12th March, 1836, be extended to the Female Orphan Society, and to all other Orphan Asylums in the State, and to the House of Refuge for the Reformation of Juvenile Delinquents, and that they be exempted from parish and municipal as well as State taxation, any law to the contrary notwithstanding.” Approved March 25th, 1844.
    Fifth — Alleged repealing claims of the Constitution of 1868.
    Article 118: “ Taxation shall be equal and uniform throughout the State. All property shall be taxed in proportion to its value, to be ascertained as directed by law. The General Assembly shall have power to exempt from taxation property actually used for church, school or charitable purposes.”
    Article 149: “All rights, actions, prosecutions, claims, contracts and all laws in force at the time of the adoption of this Constitution and not inconsistent therewith, shall continue as if it had not been adopted.”
    Sixth — The special acts of 1836 and 1844 were in force at the time of the adoption of the Constitution of 1868, and secured immunity from all taxation. “It is undeniable that the revenues derived from the property for which the exemption is claimed are devoted to the charitable purposes for which the Poydras Asylum was established; without such revenues or donations made to it, it is obvious that this institution would fail to accom: plish the praiseworthy public object for which it was established. Its successful operation may be considered as an auxiliary in the administration of the municipal government which is under obligation to provide for its paupers.” “ By the Act of 1847, the sites of these institutions were exempted from taxation ,• it is, therefore, clear that the Legislature, by the act of 1850, intended to grant them a more extensive exemption. But if the least doubt existed in our minds as to the true construction of this Statute, it is clear that the defendant would be "entitled to the exemption claimed under the acts of the 12th March, 1836, and 25th March, 1844.” “ The corporation of New Orleans derives the power of taxation from the Legislature; and as the Legislature has expressly withheld from it the power to tax defendant’s property, the attempt to tax such property must necessarily be abortive.” City of New Orleans vs. Poydras Asylum, 9 An. 589.
    •Seventh — Cooley on Taxation, p. 145: “ The exemptions commonly made by express Statute are based upon reasons so forcible that they have seldom been contested. We refer now to the exemptions of tools of trade j of the limited personal property of very poor persons; the property of córporations or associations devoted exclusively to the work of public charity, or in other directions where what they accomplish operates in the relief of public burdens and the like. Exemptions of the property of religious societies and of persons oc corporations engaged in instruction have not passed, are challenged on the score of right and policy; but the power to make them is unquestioned.”
    Eighth — Considered by the late Supreme Court. Unreported case, City of New Orleans vs. George ‘W. Campbell. On rehearing, Mr. Justice Egan, referring to property of this defendant, says: “Besides the exemption of the property itself with all enhancement of value from improvement results in this instance from the grace of the State toward an object of beneficence, a public charity which it is neither the will nor the policy of the law to tax.”
    Ninth — Property of defendant when acquired: Cotton press property was acquired in 1838; property in square 62 was donated by Mr. Poydras in 1824 ,• property in square 129 was given by Mr. Poydras in 1817 and was the original site of the Asylum. Record pp. 28, 29.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a suit for city taxes of 1879, assessed on real property, in this city, owned by the defendant, and yielding revenue.

The defense is, that the property is exempt from taxation.

The reply is, th.at whatever the law was which may have, been considered as exempting all of defendant’s property, however used, from all taxation prior to 1868, that law, being inconsistent with the Constitution adopted in that year, was thereby abrogated, and that, if it survived that Constitution, it was repealed by Act 7 of 1870, the city charter.

There is no dispute touching the power of the State to have granted the exemption claimed at the time it is claimed that it did, (1844). Neither is there any contest as to the character and identity of the defendant institution, nor as to the nature or mode of use and enjoyment of the property from which the tax is claimed. The institution is a charitable one. The property in question yields a revenue which, added to what resources the asylum may possess, is entirely inadequate to meet its urgent wants and necessities. Neither the land nor the buildings upon it are otherwise used than as a source of revenue, which is applied solely to the legitimate purposes of the institution. The different special acts, under which the defendant claims exemption, were, under plea, offered and introduced in evidence.

The defendant corporation was created by a special act of February 22d, 1817. (Acts p. 193).

■All the property, real and personal, belonging to a similar institution, the Orphan Boys’ Asylum of New Orleans, was, by act of March 12th, 1836, (Acts, p. 135) exempted from all taxation, State, parish or city, in which situated.

This exemption was, by act of March 25th, 1844, (Acts, p. 64, No. 96) specially extended to the Female Orphan Asylum, and to all other orphan asylums in the State, and to the House of Refuge for the Reformation of Juvenile Delinquents, which thereby were exempted from all parish, municipal and State taxation, “ any law to the contrary notwithstanding.”

By act of March 21st, 1850, the property of this asylum, as well as that of all other charitable institutions, was exempted from any taxation by the City of New Orleans, or the several municipalities thereof.

The judicial annals of this Court show what construction was placed by our predecessors .upon these different exemption laws. In a suit brought by the city against the present defendant, determined in 1854, in which taxes were claimed on property yielding revenue and not actually used for the purpose of the institution, the Oourt there said :

“It is undeniable that the revenues derived from the property for which the exemption is claimed, are devoted to the charitable purposes for which the Poydras Asylum was established. Without such revenues, ■or donations made to it, it is obvious that this institution would fail to accomplish the praiseworthy public object for which it was established. Its successful operation may be considered as an auxiliary in the administration of the municipal government, which is under obligation to provide for its paupers.
“ The language used by the Legislature in the act of 1850, is plain and unequivocal, and in our opinion clearly extends, without any discrimination, the exemption from taxation to all property held by charitable institutions.
“ But if the least doubt existed in our minds as to the true construction of this statute, it is clear that the defendant would be entitled to the exemption .under the acts of the 12th of March, 1836, and 25th of March, 1814
"The corporation of New Orleans derives the power of taxation from the Legislature, and as the Legislature has expressly withheld from it the power to tax defendant’s property, the attempt to tax such property must necessarily be abortive.” 9 An. 584

Acting on the faith of the immunities thus extended and thereby accepting the same, the defendant corporation assumed to build, in 1858, ■a large and costly asylum in the Sixth District of this city, to which it moved its orphans in that year, and which it has since continued to ■occupy to the present day.

The evidence shows that the asylum is considerably in debt for a balance due on an amount borrowed for the purpose of constructing the building just mentioned; that its administration is gratuitous; that the revenue of the property owned by it is altogether applied to provide the •orphans with food, clothing, fuel, medicine, attention in sickness and other indispensable necessities; that the corporation has no reserve fund, no accumulated capital; that, if the tax were to be paid, it would have to come out of the wants of the orphans, and, as a consequence, the good work of the institution would be paralyzed and its doors closed upon many suffering ones.

It cannot be, nor is it, disputed that, at the adoption of the Constitution of 1868, the defendant corporation was by law exempt from all taxation, but it is insisted on the one hand that this law was repealed, •and on the other that it is in full force and vigor.

It is clear that it has not passed out of existence, unless jit was annulled by the Constitution of 1868, or by a subsequently passed statute.

In order to ascertain whether the repeal has takenjplaee, we must ■confront the laws and compare them to discover their discrepancies, inconsistencies or repugnancies. In so doing, we will be guided by the rules established by law and jurisprudence for the construction of statutes.

“ The general rules of interpretation are the same whether applied to statutes or constitutions." Sedgwick Constr. 19.

“We are aware of no reasons, applicable to ordinary legislation, which do not apply equally well to constitutions.” Cooley C. Lim. 63; 3 Ind. 258; 21 N. Y. 12; 10 O. N. S. 588; Wade on Retroactive Laws, 8-37.

“ The general doctrine is, that constitutions are to be expounded in the same way and according to the same rules as statutes.” Bishop on Statutory Crimes, g 92; 7 Md. 135; 5 Ind. 557; 5 Md. 337.

It is elementary that laws are repealed expressly or impliedly. The repeal is express, where it is literally declared by a subsequent law; it is implied, when the new law contains provisions contrary to, or irreconcilable with, those of the former. Repeals by implication are not favored by law.

The old is abrogated by the new law only when the latter is couched in the negative, or so clearly repugnant as to imply a negative.

Different laws on the same subject, if not absolutely inconsistent, must be construed and taken as one.

A particular law, still less a special statute, which is one requiring plea and proof, is not considered as repealed by a general law, unless-expressly so, or conflicting to such an extent that they cannot be reconciled and cannot stand, co-existing, under any circumstance.

R. C. C. 17, 23,1746; 10 M. 172; 12 M. 697;-1 N. S. 161; 2 N. S. 33; 3 N. S. 190; 5 N. S. 527,575; 6 L. 135; 7 L. 166; 4 R. 71; 1 An. 54; 2 An. 919; 3 An. 398; 5 An. 121, 395; 6 An. 605; 12 An. 498, 805; D. 1 L. 3 T. 1. 26, 28.

“A general statute, without negative words, will not repeal the particular provisions of the former, unless the two acts are irreconcilably inconsistent. The reason and philosophy of the rule is that, when the mind of the legislator has been turned to the details of a subject and he has acted upon it, a subsequent statute, in general terms, or treating the subject in a general manner, and not expressly contradicting the original act, shall not be considered as intended to affect the more particular or positive previous provisions, unless it is absolutely necessary to give the latter act such a construction in order that its words shall have any meaning at all.” Generalia specialibus non derogant.

Sedgwick Constr. 92, 2d ed.; Dwarris on Statutes; Cooley Const. Lim.

Among the cases mentioned by the first named author, is that of Blain vs. Baily, 25 Ind. 165, which is to the effect that: “ a special exemption of particular property from municipal taxation is not affected by a subsequent general statute giving cities power to tax “ all property ” within their limits, there being no special repeal.”

Further: Legislation, constitutional or statutory, is usually intended to operate prospectively, and should be applied accordingly, unless it clearly result from the terms used that it was designed to act retrospeetively, and that, under the Constitution it could legitimately do so. R. C. C. 8, 1946.

Sedgwick, 161, note; 58 Barbour, 161; Wade, 33, 34, 35, and authorities in note.

“ One oí the cardinal rules by which courts are governed in interpreting statutes is, that they must be construed as prospective in every instance, except where the legislative intent, that they shall act retrospectively, is expressed in clear and unambiguous terms, or such intent-is necessarily implied from the language of the statute, which would be inoperative otherwise than retrospectively. This rule rests upon no constitutional limitation of the legislative power, but is a doctrine-of the common law, founded upon the recognized injustice of a method of making laws by which the Legislature looks backward to discover past errors to be corrected and past grievances to be remedied. In all retroactive laws there must be an element of surprise, by which the persons whose rights are affected are taken unawares. They are called upon to act in a manner different from what they had been led by the previous state of the law to anticipate. So repugnant is such a system of legislation to our moral sense of justice that it has been stigmatized as more unreasonable than that adopted by Oaligula, who was said to have written his laws in a very small character and hung them upon high pillars, the more effectually to ensnare the people.” Wade 34, 35, 36; 1 Blackstone Com. 46, and numerous authorities iu note of Wade 34.

“ This principle is not only applicable to legislative acts, but to State Constitutions, and, in fine, to all written law. Where constitutions contain provisions prohibiting the Legislature from authorizing counties, or subordinate branches of the State government, to assume liabilities, such provisions cannot affect the validity of special statutes already in existence, authorizing the assumption of such liabilities, but will be construed as prospective.” 4 Peters, 401; Wade, 37; 85 Pa. 357; 81 Pa. 482; 9 W. Va. 162; 23 Md. 203; 41 Mo. 453.

“ Every reasonable doubt as to the intention of the law-maker, is-resolved against, rather than in favor of, the retroactive operation of the statute. Its retrospective features must be the necessary result of a strict construction of its express terms.” Wade, 35; 21 Wis. 268; 15 Wis. 548; 58 Barb. 161; 21 Conn. 351; 52 Pa. 315: 10 Conn. 77; 7 Conn. 558; 29 N. J. 311, 333.

Applying those rules to the case before us, we find that article 118-of the Constitution is not couched in negative terms; that it is not retrospective in its tenor or apparent intent; that it contains provisions for the-future only; that it is not inconsistent with, or obnoxious to, the exemption-special statute, previously passed, invoked by the defendant in this suit.

It is worthy of note, that the Constitution, termed of 1864, which was superseded by that of 1868, contained, as did the latter, a special prohibition against retroactive legislation. This is not said to mean that it could be a restraint upon the Convention, but only to indicate how improbable it is that, after placing such prohibition on the powers of the Legislature, the Convention would itself have disregarded the rule, and that, too, in relation to church, school and charitable institutions, previously, unquestionably exempt.

The fallacy of the proposition advanced to the effect that all exemption laws previously in force were abrogated by the Constitution of 1868, arises from a confusion of ideas and from an erroneous assumption of facts. The confusion of ideas consists in thinking that the language used in the affirmative by the Constitution and by the Statutes, is as peremptory in its repealing effects as if couched in the negative, and in leaving out of view article 149, which continues in force consistent laws. The erroneous assumption of fact consists in dealing with the property of the defendant corporation as though the corporation had been created since 1868.

We see no incompatibility between the exemption law invoked and the Constitution of 1868, or the revenue laws, State and municipal, on the subject, and think that, far from being antagonistic and self-destructive, they can well be construed so as to co-exist and to accomplish the purposes for which they were respectively designed, particularly if we consider that, were it not so, the constitutional article and the statutes, which are claimed as obnoxious to the exemption invoked, might be assailed, as, in fact they are hypothetically, as impairing the obligations of a contract binding upon the State, its functionaries and the corporation. It appears to have been settled — but on this subject we express at present no opinion, as such is not necessary — that laws of this kind have been sustained as valid and binding when invoked by literary and charitable societies, when, at the time of the granting of the exemption, there existed no constitutional restraint on the power of the Legislature. Wade, 95; 6 Conn. 223; 8 Wall. 430; 7 Pick, 108; 8 Wall. 439. The case of University vs. People, decided in 1878, in 99 U. S. 321, bears peculiar analogy to that now under consideration.

We have examined the different authorities relied upon to defeat the defense of exemption, but do not feel authorized to give them the weight which is claimed for them.

We propose to review those authorities seriatim and to show their inapplicability to the case before us.

The case of the City of New Orleans vs. the Congregation Dispersed Judah, 15 An. 379, was decided in 1860, the defendant claiming an exemption under the act of 1856, which extended the immunity only to prop erty in actual use, (Act 1856, p. 147, §40, No. 4). The Court declared that the property belonging to the association, yielding revenue to its coffers, had not the privilege or benefit of this exemption.

In the case of the City vs. Bank of Lafayette, 27 An. 376, the bank claiming exemption was created since the adoption of the Constitution of 1868. The language used in the very brief opinion delivered must be considered as obiter, being totally uncalled for and is supported neither by reasoning nor justice. It cannot bind this Court.

In the case of the City of New Orleans vs. the New Orleans Mechanics’ Society, 27 An. 436, the exemption pleaded was declined, not only because the charter did not provide for it, but also, because the property was not used as required by law for charitable purposes, and because the corporation was not a charitable institution. There is no reference in it to the Constitution of 1868.

In the case of New Orleans vs. People’s Bank, 27 An. 519, the suit was for a tax on the capital of the bank. The Court held that, because the defendant is required to pay a license, it is no reason why property owned by it should not be taxed like other property in the City of New Orleans.

The bank had been created in 1869, (27 An. 646).

In New Orleans vs. People’s Bank, 27 An. 646, the bank having been incorporated in 1869, was declared not entitled to the exemption claimed, owing to the prohibitory provision of the Constitution of 1868, found in article 118.

In New Orleans vs. Metropolitan Loan, Savings and Pledge Bank, 27 An. 498, the bank having been created since the adoption of the Constitution of 1868, was denied the exemption claimed for the same reason.

In New Orleans vs. St. Charles Street R. R. Co., 28 An. 497, decided in 1876, the defendant claimed exemption under a contract entered into with the city, and the Court held that the city had no right to defeat the commands of its creator; in other words, to exempt the property as claimed.

In New Orleans vs. St. Patrick’s Hall, 28 An. 512, the exemption was claimed under an act of 1874, No. 29, but the evidence showed that the property was not used for church, school or charitable purposes, and the act was declared violative of the constitutional prohibition and, therefore, null and void.

In New Orleans vs. Lafayette Insurance Co., 28 An. 756, the exemption was claimed under an Act of 1871, which being violative of the Constitution of 1868, Art. 118, was declared inoperative.

In New Orleans vs. Davidson, 30 An. 554, the question was one of compensation, and really has no practical bearing on the case now before us.

In New Orleans vs. St. Anna’s Asylum, 31 An. 295, the question was, whether property acquired in 1874, and yielding revenue, could be considered as exempt from taxation under the charter of the corporation granted in 1853, which placed it on equal footing with other charitable institutions. It is true the Court denied the exemption, but it said: “ When a case of prior acquired property presents itself it will be time enough to express our opinion thereon.” So that the Court drew a line-of demarcation between the two sorts of property, that acquired before and that acquired after 1868. This case is on writ of error before the United States Supreme Court and undecided. We cannot recognize that it has a bearing on the matter now before us and which exhibits a case of prior acquired property.

The constitutional requirement of equality and uniformity, only extends to such objects as the Legislature shall determine to be property subject to the burden. Cooley on Taxation, 126.

The rule of uniformity “must extend to all property subject to tax- . ation, so that all property may be taxed alike, equally, which is taxing by a uniform rule.” Burroughs on Tax., p. 65.

The provision of uniformity does not prevent the State from exempting objects of charity.

Commenting upon article 118 of the Constitution of 1868, providing that “ all property shall be taxed in proportion to its value, to be ascertained by law,” in the case of New Orleans vs. Fourchy, 30 An. 913, Mr. Justice Spencer, as the organ of the Court, says, alluding to the defendant:

“He maintains that, by the Constitution of 1868, all property or none must be taxed, and he cites article 118. We do not construe that clause as does the defendant. It simply means that the taxation of all' property subject to tax shall be ad valorem.”

Further, he says :

“ The question as to what property falls or shall be embraced within the classes designated as for ‘ church, school, or charitable purposes,” is, of necessity, largely one of legislative discretion, and this Court would with reluctance interpose its opinions to thwart this legislative-discretion, unless there was a manifest and flagrant abuse of it. We are-not prepared to say that in any of the exemptions complained of the Legislature has transcended its authority; on the contrary, we think it a. wise and beneficent exercise of it to exempt enough of the indispensables of life to save the poor from pauperism, and thus protect property and society from increased burdens.”

It may well be that the charter of the defendant may be a subject of repeal under the powers reserved by a general law; but we consider that it was not repealed. The most that could be claimed would be a partial repeal, or an amendment destructive of an immunity previously granted; but, from the fact of a reserved power to repeal entirely, it cannot be inferred that the power to repeal partially, or amend, can be exercised. The power to destroy at once may exist, but the power to destroy gradually, or in part, has no being. It may well be that, before exercising the high prerogative of total destruction of an institution of charity of this description, which has exhibited a character which strongly recommended it to the protection of government, the Legislature would pause and rather support than suppress it.

Construing the law invoked with the Constitution and subsequent revenue State and municipal statutes, we think they mean and say:

“ Taxation shall (hereafter) be equal and uniform throughout the-State. All property (not heretofore or hereafter exempt) shall be'taxed in proportion to its value, to be ascertained as directed by law. The General Assembly shall have power to exempt (hereafter) from taxation property actually used for church, school or charitable purposes.”

Coming down to the character of the particular property on which the tax claimed was levied, we attach no importance to the fact that it-is not in the physical, actual, use of the asylum, and that it is a source of revenue. It is enough that it was entitled to be and was exempt from taxation at the adoption of the Constitution of 1868, under the law of 1844, although not in such actual use, and that the exemption is still in. force, to enable us to concede to it the immunity claimed for it.

Construing, as we do, the law of exemption relied upon and the Constitution of 1868, and the revenue statutes subsequently passed, we retain unhurt, uncrippled, an institution, which, owing to its usefulness, like others of the same character, to the public, to suffering and forsaken humanity, it is neither the will nor the policy of the law to tax.

We do not mean that whatever property may be owned by a charitable institution, incorporated prior to 1868, is exempt from all taxation; on the contrary, we expressly hold that it is only such property as is actually used, or the revenue of which is indispensably necessary for the legitimate purposes of the institution, that enjoys the immunity. Exemptions subsequently granted are restricted to the property actually' used, and do not cover property yielding revenue. Burroughs on Tax.,, pp. 134,135.

The judgment of the lower court subjected the property to the payment of the tax claimed on the authority in the 31st An., which does-not authorize such conclusion.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be reversed, and proceeding to render such judgment as should have been rendered,

It is ordered, adjudged and decreed that the demand of plaintiff be-rejected, with judgment in favor of, the defendant, with costs in both •courts.

Mr. Justice Fenner dissents, reserving the right to express his written views. •

Dissenting Opinion.

Fenner, J.

I fin'd it impossible to concur in the decree rendered herein.

In the view which I take of this case, the learned opinion delivered •on behalf the majority of the Court overturns the settled jurisprudence ■of the State on all the questions which it determines, and omits to •determine at all the only question left open to controversy under that jurisprudence.

To establish this, it is only necessary to refer to the latest decision on the subject, in the City of New Orleans vs. St. Anna’s Asylum, 31 An. 292, which reviews all prior decisions and states the substance of the “settled jurisprudence,” including the proposition, “that all grants of exemption made after the adoption of the Constitution, of property not in terms covered by it, were void,’and that all prior grants of exemption inconsistent therewith were repealed thereby unless protected by contracts.”

It is to be borne in mind that the Court, in the above case, was discussing a statute, incorporating the Orphan Boys’ Asylum, passed in 1836, the very year in which the statute incorporating the defendant corporation was passed, and absolutely identical in the terms of •exemption. The Court says : “ Under this settled jurisprudence, there can be no doubt of the liability of the property in controversy, unless removed from the general rule by some exception. Such exception is ■claimed as resulting from the charter of the defendant corporation, by which it is contended that a contract was created divesting the State of all power to repeal the exemption claimed.” .

Proceeding, the Court quotes the exemption clause of the charter, identical with that now under consideratian, and says: “ The mere existence of this statute would not alone entitle the property to exemption, for, as we have already seen, all statutory exemptions incompatible with the existing constitutional provision have, by it, been repealed. The •solitary question, therefore, is, was this exemption a contract of such a nature as to invest the corporation with such a right as to remove it from all subsequent legislative control ? ”

It cannot possibly be disputed that this decision does positively settle the point that the Constitution of 1868 did repeal all prior inconsistent exemption laws, unless protected by the element of contract; and does settle that an exemption law, precisely similar to the one at bar, is inconsistent with it.

The opinion of my brethren in this case overrules the St. Anna’s case on both the above points. The St. Anna’s opinion is in harmony with all prior opinions of the courts organized under the Constitution of 1868.

I think that this Court, created under the Constitution of 187&, should, in all possible cases, abstain from overruling the construction placed upon the Constitution of 1868 by the courts organized under that constitution. I think the construction adopted by those courts on the present subject was clearly correct; but, if I doubted, I should follow their authority.

In this case, as in the St. Anna’s case, the only question left open to controversy is whether the exemption claimed was protected as a contract. There, the property, for which the exemption was claimed, was-acquired after the Constitution of 1868 was in force, and it was held that such property was not so protected, and it distinctly left open the ques- . tion as to prior acquired property to be determined when presented. In this case, it is presented, and should be determined. The opinion of my brothers fails, and, indeed, expressly declines, to determine it.

In my opinion, the exemption granted under the statute invoked in this case, is not protected as a contract. It was a mere privilege, without consideration, simply suspensive of the sovereign right of taxation, and susceptible of being recalled by the sovereign will. I do not think that one General Assembly has the power, without consideration, to divest even subsequent assemblies, and, still less, the people in convention, of the sovereign right of taxation.

I, therefore, dissent from the opinion and decree herein rendered.

On Rehearing.

The opinion of the Court was delivered by

Poché, J.

In view of the important questions of law involved in this case, and considering the great earnestness with which the application for rehearing was pressed upon us by counsel for the city, we deemed it our duty to grant a rehearing in the case.

We have had the benefit of able and learned oral argument; we have carefully re-examined the case, have thoroughly analyzed the numerous authorities submitted for our consideration; and our conclusion is that our previous decree was correct.

It is, therefore, ordered, adjudged and decreed that our former decree remain undisturbed.

Todd, J.

I concur in the decree refusing to set aside our former decree in this ease. In expressing this concurrence, I desire to state briefly my reasons therefor. This society was established in 1817.

In 1836, by an act of the Legislature, it was declared: “ That from, .-and after the passage of this act all property, real and personal, belonging to the Orphan Boys’ Asylum of New Orleans be, and the same is hereby, exempted from all taxation, either by the State, parish or city in which it is situated, any law to the contrary notwithstanding.”

By Act 96, of 1844, the same “exemption from taxation” was extended to the Female Orphan Asylum, being the corporate name of the defendant in this suit. And another act was passed in 1850 again declaring a special exemption in favor of this society from municipal taxation.

After the passages of these several acts, and we must presume on the faith of these exemptions, large improvements and additions were made to the asylum buildings and money borrowed to make the same, part of which is still owing by the society, and which was, doubtless, loaned on the faith of these several acts.

I think, under these facts, a contract was created between the State and this society, protected by the Federal Constitution, and bringing it clearly within the cases of the University vs. People, 9 Otto, 309, and the City vs. Southern Bank, 23 An. 271.

While not prepared to dissent from the reasoning of the Court in its former opinion, I prefer to place my concurrence in that decree upon the ground now assigned.

Dissenting Opinion.

Fenner, J.

In order to avoid confusion, it is necessary to consider, separately and independently, the several questions presented by this case.

The defendant claims its exemption under and by virtue of act of February 22d, 1817, and act of March 24th, 1844, taken in connexion with act of March 12th, 1836, which provide substantially that all the property, real and personal, belonging to the institution, is exempted from all taxation, State, parish or municipal.

This exemption is unrestricted by any qualification whatever as to the use either of the property or of its revenues.

It is a striking fact, that the Constitution of 1812, in force when these statutes were passed, contained no provision whatever on the subject of taxation, but left the legislative power over the rate, mode, purposes and objects of taxation, entirely unrestricted. Therefore, the power of the Legislature, under that Constitution, to make the broad and unqualified exemption of defendant’s property was, at the time, unquestionable.

A large portion of the original majority opinion in this case was -devoted to the establishment of the proposition that the Constitution •of 1868 and the revenue laws passed in pursuance thereof did not operate retroactively or to repeal the exemption granted by the statutes ■above referred to.

If this proposition were correct, this case would be one of easy solution. It would only have been necessary for defendant to establish its •title to the property in order to sustain the exemption claimed, without reference to the use either of the property or its revenues.

I can, therefore, perceive no necessity or relevancy in the further elaborate discussion by the Court of the meaning of Art. 118 and of the terms “ actually used for church, school and charitable purposes,” nor in the conclusion that the defendant’s property is exempt because its revenues are used for legitimate charitable purposes.

I think that, under the terms of the Constitution, and under the jurisprudence of the courts established thereunder, the exempting statute was unquestionably repealed so far as inconsistent with the rule of taxation provided by article 118.

The position that in giving the Constitution this effect, we attribute to it a retroactive operation, is, to my mind, entirely unsound.

Article 118 of the Constitution of 1868 simply prescribed the rule of taxation to be thereafter followed by the legislative power. The rule operated for the future only, and the Legislature, in framing future tax-laws, was bound to follow that rule, and to disregard all prior statutes inconsistent therewith. If it might disregard the constitutional rule, and follow former statutes differing therefrom, the constitutional requirement would be vain and unavailing. '

The sweeping provision of Art. 149 of the Constitution of 1868 that •“ all laws in force at the time of the adoption of this Constitution and not inconsistent therewith, shall continue as if it had not been adopted,” is pregnant with an equally sweeping deduction that all laws, inconsistent with the Constitution, must cease to have effect.

This statute must stand on the same footing with all other existing statutes. So far as consistent with the Constitution, it remained in force; so far as inconsistent therewith, it was repealed and destroyed, unless protected by the element of. contract, which we are not now discussing.

Such was the distinct and unequivocal conclusion reached by this Court in the St. Anna’s Asylum case, where it was said, in discussing the very same statute here in question: “ The mere existence of this statute would not alone entitle the property to exemption, for, as we have already seen, all statutory exemptions, incompatible with the existing constitutional provision, have, by it, been repealed.” 31 An. 292.

It is irrelevant to say that this decision is on appeal to the U. S. Supreme Court and is, therefore, not final as authority. On this point it is final, the only question carried to the Supreme Court being the question of contract, which we are not now considering. The decision affirms the ease of City vs. Bank of Lafayette, 27 An. 376, which had declared that “ any law which is in conflict with that article (118), whether passed before, or after, its adoption, is stricken with nullity, unless the law created a contract.”

Eor this Court to overrule these decisions of the courts organized under the Constitution of 1868, is, to my mind, a violation of the cardinal rule that constitutions should receive an unvarying interpretation. “ The meaning of a constitution,” says Judge Cooley, “ is fixed when it is adopted, and it is not' different at any subsequent time when a court has occasion to pass upon it.” It is not to be made to mean one thing to-day, and another thing to-morrow. By our decision of to-day, the Constitution of 1868 is made to have a different meaning from that which it had when adopted, and continued to have during the whole term of its existence, according to the authoritative determination of the highest judicial tribunal created by it, and having authority to interpret its effect in the last resort.

The construction thus placed upon it by its own courts, was made the basis of legislative action in framing the revenue laws of t.he State and city, and our decision must operate seriously to derange the estimates of receipts and expenses, upon the certainty and correctness of which depends the financial system of both.

The same construction may well have influenced the minds of the framers of our present constitution in using, in its article 258, the same language with reference to prior existing laws, which had been used in article 149 of the Constitution of 1868, under the supposition that the effect would be to repeal exemption, as well as other statutes inconsistent with the constitutional rule of taxation, as had been decided to be the effect of the same words in the former Constitution. Aside from my conviction that the former decisions are correct, these and other like considerations would prevent me from consenting to overrule them.

The next point for consideration, is to determine the meaning of article 118, in order to decide whether the exemption here claimed is inconsistent with it.

The interpretation placed upon this article in the majority opinion is entirely contrary to that established by the existing jurisprudence.

In a ease later even than that of the St. Anna’s Asylum, the Court said: “ The grant of power to the General Assembly (in article 118) to exempt property actually used for church, school or charitable purposes, is an enumeration, and, hence, an exclusion of the power to exempt all property not included in its terms.” La. Cotton Mfg. Co. vs. City, 31 An. 443.

Precisely the same doctrine was first announced in Morrison vs. Larkin, 26 An. 702, where the Court said: "The special grant of authority in article 118 to the General Assembly ‘ to exempt from taxation property actually used for church, school or charitable purposes,’ carries with it an implied inhibition against the exemption of property not actually used for church, school or charitable purposes.”

The same doctrine was followed in 27 An. 646, id. 276, id. 648; 28 An. 498, 512, 756; Cooley’s Const. Lim. pp. 64, 87.

Then, unless the property here claiming exemption is “ actually used for church, school or charitable purposes,” the exemption (in absence of contract) cannot be sustained.

This brings us to the question as to what is meant by “ actually used ” for such purposes.

Here, too, the authorities are unanimous that the phrase means the actual use of the property and not of the income derived therefrom. Property is one thing — income is another.

Pour decisions of this Court sustain the doctrine that where the property itself is not used for the designated purposes, but is rented to others, who use the property for their personal purposes, it does not fall within the meaning of the phrase “ actually used,” although the revenues derived by the owner may be applied to charitable purposes. Dispersed of Judah case, 15 An. 390; St. Patrick’s Hall case, 28 An. 512; St. Anna’s Asylum case, 31 An. _; Mechanics’ Society case, 27 An. 436; see Burroughs on Tax., pp. 134, 136; Blackwell Tax Titles, 409, 410.

The learned counsel for defendant have utterly failed to point out any contrary authority either in this State or elsewhere, judicial or textual.

The case of University vs. People, 9th Otto, 324, the only one referred to on this point, turns out to be directly against him.

Prom a close examination of this case, the following facts, strikingly similar to the one at bar, appear: The Constitution of 1848 of Illinois authorized the exemption of “ such property as the Legislature may deem necessary for school, religious and charitable purposes.”

Under this constitution, the Legislature passed an act declaring that “ all property, belonging to or owned by said corporation, shall be forever free from taxation.”

Subsequently, in 1870, the State adopted a new constitution providing that “such property as may be used exclusively for school, religious and charitable purposes, may be exempted from taxation.”

The Legislature, then, in 1872, passed a law exempting only “ the real estate on which the institutions of learning are located, not leased by such institutions or otherwise used with a view to profit.”

Under this act, the State demanded taxes on property of the University leased by it, but of which the revenues were used exclusively for its educational purposes. The Supreme Court of Illinois, under the peculiar facts of the case, conceded that if the original exemption law was valid under the constitution of 1848, it constituted a contract not repealable by the subsequent constitution and law. But the Court held that, even under the constitution of 1848, the legislative power of exemption extended only to property used directly for school purposes, saying, “property for such purposes, in the primary and ordinary acceptation of the term, is property which, in itself, is adapted to and intended to 'be used as an instrumentality in aid of such purposes. It is the direct and immediate use, and not the remote or consequential benefit to be derived through the means of the property, that is contemplated.” The Court, therefore, maintained the tax.

The U. S. Supreme Court, in reviewing this decision, said: “ The first observation we have to make is, that the constitution (of 1848) does not say ‘ property used for schools,’ as the opinion of the Court implies. Neither the important word, use or schools, is found in the section of the instrument on that subject. If the language used were that the Legislature might ' exempt property for the use of schools,’ we should readily agree with that court. Indeed, that would be the appropriate language to convey the idea on which the Court rests its decision.”

The Court proceeds then to show that the constitution of 1848 gave the Legislature discretionary power to exempt property “ for school purposes,” without any reference to its use, and held that property leased, of which the revenues were applied to school purposes, was property held for school purposes, although not used for school purposes.

And the Court further places side by side the provisions in the constitution of 1848 and 1870, to show that the language used in the latter, and not in the former, was the proper language to be used, if the intention was to confine the exemption to property actually and primarily used directly for the school purposes, and to exclude property leased for other purposes, though the revenue was applied to the school.

Not the slightest question was made in either Court, that the later constitution repealed the prior statutory exemption, unless the latter was a contract, and both Courts agreed that the language employed in the later constitution, viz: “ Property exclusively used for church, school or charitable purposes,” only embraced property so directly and primarily used, and excluded property leased for revenue, although the revenue was employed for the designated purposes. It is impossible to draw a distinction between “ property exclusively used,” and “ property actually used,” for such purposes.

So far as my own researches have extended, and so far as I have been aided by the researches either of defendant’s counsel or of the majority of my brethren, I have been able to discover no single authority ■militating, in the slightest degree, against any of the positions herein ■assumed.

I am, therefore, constrained to conclude, that, unless protected as a -contract, the exemption claimed by defendant has no ground to rest on.

Upon this question of contract vel non, I have been seriously impressed with views of that subject expressed by the U. S. Supreme Court in the case of University vs. People, just discussed, and, under the facts of this particular case, might possibly change the opinion expressed in my former dissenting opinion. I shall, therefore, content myself with dissenting from the opinion of the Court herein, without .taking any position as to the decree.

The importance of the questions involved, as well as my sympathy with a noble charity, impel me thus to place of record the strong reasons which require me to oppose rulings favorable to interests.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 8027.
    Succession of Lizzie Dean (Mrs. Eliza V. Mahood). On Opposition of Mrs. Charlotte Duffy.
    In. estimating tlie active mass of a succession, the valuation in the inventory is not conclusive, and the true value of the property may be shown by other proofs.
    In fixing the amount of the legitime of the forced heir, the funeral expenses and law charges must he considered as debts and be deducted from the active mass of the succession.
    A PPEAL from the Second District Court for the parish of Orleans., A Tissoí, J.

      Bentinck Bgan for the Opponent and Appellee.

      T. Gilmore & Sons for the Executor and Legatees, Appellants :
    ITirst — In determining the reduction to which .donations inter vivos or mortis causa are liable, the value of the property at the decease of the donor or testator is to be considered, but where the appraisement in the inventory, made after the death, is shown to he erroneous, the court should be guided in fixing the value by other and more reliable evidence. O. O. 1505; Miller vs. Andrus, 1 An. 238; Maples vs. Mitty, 12 An. 760.
    ■Second — The debts to be deducted from the aggregate amount of property, should include funeral expenses and necessary law charges. Marcadé, vol. 3, 481, § 3; Duranton, vol. 3, p. 480; † 3; Boileux, vol. 3, p. 522.
    Third — Where the forced heir receives her portion of the revenues from the period of the death to the date of the partition she is not entitled to interest.
   The opinion of the Court was delivered by

Fenner, J.

Mrs. Mahood died leaving an estate valued, on the inventory taken after her death, at $13,123 71, of which $11,000, was in immovables. She left a will containing two particular legacies of $1000 and $2000. She left one child, Mrs. Duffy, the present opponent, who, though made residuary legatee by the will, is before us solely in the capacity of forced heir for one-third of her mother’s estate.

The succession was opened, the will was probated, and an executor qualified, who, however, left the property, for several years, in the hands of Mrs.- Duffy, who disposed of some of the movables and collected rents of the real estate. Subsequently, the property was sold, and the entire amount coming into the hands of the executor from the whole estate aggregated the sum of $5578 21. The .executor filed an account in which he distributed these funds as follows

To funeral expenses, law charges, expenses of last illness, and building tomb, together..................................$2257 22

Particular legacies........................................... 3000 00 leaving a sum of $320 for the forced heir and residuary legatee, in addition to a sum of $820 for movables appropriated by her, and a further sum of $2862 94, nett rents which had been collected by her.

The forced heir opposes the particular legacies on the ground that they exceed the disposable quantum.

Two questions of law are presented, as to the rules which must be followed, in estimating the reserve or forced portion of the heir.

1st. In estimating the active mass of the estate, must the valuation in the inventory taken immediately after the death, be accepted as conclusive ? -,

There is no dispute that the value at the moment of the testator’s death must govern; but the executor, representing the interest of the particular legatees, contends that the appraisement on the inventory is not conclusive, but is subject to contradiction and diminution by proper proof.

This Court has long since determined the effect to be given to inventories. ' Thus it said, referring to a case where the inventory was made in the presence and with the consent of the parties interested: “The principal object of the law in requiring a public inventory to be made of all the effects belonging to a succession, is to establish the existence of all the property, and to show the whole amount or value thereof * * such an inventory is to serve as the basis of the settlement of the estate, so far as it shows the effects belonging thereto and so far as it establishes its situation; but we are not ready to say that it should be received as conclusive proof of the real value of the property, so as to be used as the exclusive criterion by which the interested parties are to be charged, in the partition of the property and settlement of the estate. Except where the law has positively said that the property so inventoried shall be taken at the estimation price, we understand that the estimation made by the appraisers, not being conclusive, must often yield to the proof of its being excessive or incorrect.” Babin vs. Nolan, 4 Rob. 286.

This decision has been followed in the following and other cases:

Dérouin vs. Segura, 5 An. 550.

Succession of Pipkin, 7 An. 619.

It must be received as settled doctrine, and the executor’s right to reduce the estimation of the inventory, by proof, must be maintained.

2d. In estimating the debts to be deducted from the active mass, ■must the funeral expenses and the necessary law charges be included ?

On this question we have been referred to, and have been able to find, no pertinent authority in our reports.

Our article 1505 Bev. O. O. is, however, substantially identical with Art. 922 of the French Code, and we find the French jurisprudence and commentaries unanimous in the opinion that such charges are to be deducted.

Ooin Delisle says: “ Le mot dettes comprend, n seulement les dettes du défunt, mais les dépenses nécessaires de l’héi\^ ir pour appréhender la succession, frais funéraires, frais de scellés, ü’inventaire, de partage, de liquidation et autres que l’héritier a dú faire pour la conservation des droits de tous.” Coin Delisle, p. 168, No. 38.

Duranton says that, in addition to the debts of the defunct, “ on •déduit aussi les frais funéraires, ainsi que les frais des scellés, d’inventaire, et autres analogues, qui sont des charges de l’bóréditó, quoiqu’ils ne constituent point, a proprement parler, des dettes du défunt, puisqu’ils ont eu lieu depuis sa mort.” 4 Duranton, p. 384, § 345.

To the same effect, are Maroadó, Boileux, Toullier, Bicard, Delvincourt and other commentators. The principle seems to be, that, although not, strictly speaking, debts of the deceased, they are debts necessary for the preservation and liquidation of the rights of the forced heir and of all concerned, and should, therefore, be borne by the common fund. This is a sound and reasonable view, and the concurrence of so many eminent jurists is a sufficient inducement for us to adopt it.'

The law charges, in this case, might have been criticised, as to amount, had they been opposed; but, not being opposed as to amount, and, as to their nature, being exclusively those necessary for the liquidation of the rights of the forced heir, or of others interested, they must be deducted. As to the charge for building tomb, we express no opinion as to the propriety of its deduction, because, whether deducted or not, it would not affect the'deeision.

Our solution of the foregoing questions constrains us to reverse the ruling of the court a qua.

As to the true value of the property at the moment of the testator’s death, we are freed from difficulty by the express admission of the forced heir herself, that the real estate was not, at that time, worth one-half the inventory appraisement. Accepting this estimate, it reduces the

value of the immovables to.....................................$5500'

Add value movables............................................ 2123-

we have.......................................................$7623-

Deduct debts and charges of liquidation not opposed............ 2207

leaves...............,..........................................$5416"

of which one-third is $1802, the reserve of the forced heir. She has received nett rents to the amount of 2862, for two-thirds of which she is accountable, viz: $1908 50, which alone exceeds her share, besides $8.70 50 of movables which she took possession of and is accountable-for, and also the $320 allowed her on the account.

It is not necessary to be critical as to particular items; for it is-apparent that, in every possible view, the particular legacies opposed find full payment without prejudice to the rights of the forced heir.

It is, therefore, ordered, that the judgment appealed from be-annulled, avoided and reversed, and it is now adjudged and decreed that the opposition of Mrs. Charlotte Duffy be dismissed at her costs in both courts.

Behearing refused.


author: Todd, J. Poché, J.

text:
    No. 8249.
    Wm. H. McGregor vs. Robert W. Allen.
    Absence of a public officer from tbe place where he holds his office, caused by sickness and' medical treatment, does not amount to the change of residence, for which, under Article-195 of the Constitution, the.office is vacated.
    Act No. 39 of 1873, is not unconstitutional on the score of its title.
    APPEAL from the Nineteenth Judicial District Court, parish of St. Mary. Goode, J.

      D. Gaffery, W. K, Wilson and L. A. Connella for Plaintiff and Appellee:
    First — The Governor of the State of Louisiana cannot .remove a constitutional officer, nor use* the appointing power vested in him by the Constitution to fill an elective constitutional office, before a vacancy in such an office is judicially declared according to law, or before the incumbent has been removed by address, or has resigned or died. 24 An. 19 and 595-j 25 An. 119; 32 An. 934; 21 An. 490; L. L. p. 499, No. 18.
    Second — A visit to the City of New Orleans by a citizen of one of the country parishes to obtain medical treatment in the Charity Hospital, does not constitute such a change of residence as is contemplated in Art. 195 Const. 1879.

      Third — The insanity of an occupant of an office does not ipso facto vacate that office under Arts. 187 and 148 Const. 1879.
    Fourth — Act No. 39, of the Acts of 1873, approved Mgrch 5th, 1873, is not unconstitutional.
    Fifth — That Act applies to relator’s case. 25 An. 238; 22 An. 245; 26 An. 374; 29 An. 794.
    Sixth — The reception of money from a de facto officer collected in his official capacity does not constitute such an act as will estop the person receiving the money from setting up to the office a superior title to that under which the occupant holds. Greenleaf, third ed. vol. 1, sec. 22; McIntosh vs. Smith, 2 An. 757; 12 F. 471; 1 An. 197; 2 An. 957, 4 N. S. 125; 5 N. S. 360; 5 An. 142.
    Seventh — Respondent having set up title to an office hy virtue of a commission, his right to hold said office must stand or fall with the legality of the commission, and he should not he allowed to prove other facts than those recited in the commission. 25 An. 267; 13 An. 90.
    Eighth — Defendant’s commission issued in error, and cannot deprive plaintiff of his office. Lonqne’s Digest, p. 333, No. 14; 24 An. 20.
    Ninth — The office of Justice of the Peace is a judicial office, and the right thereto may he contested under Act No. 39, Acts of 1873, Const. 1879, Art. 80; Act No. 39 of 1873, section second.

      A. G. Allen and Foster Bros, for Defendant and A ppellant.
   The opinion of the Court was delivered by

Todd, J.

At the first election held under the present Constitution, on the 2d of December, 1879, the plaintiff was elected one of the justices of the peace for the third ward of the parish of St.' Mary, and was commissioned and qualified as such on the 4th January following.

On the 12th of May, 1880, the defendant received a commission from the Governor to the same office, the commission stating that he was appointed “vice Wm. McGregor, who has left the parish.” The defendant qualified under this commission and proceeded in the discharge of the duties of the office.

On the 10th February, 1881, the plaintiff instituted this proceeding under Act No. 39 of 1873, to recover the office, and evict the defendant therefrom.

The defendant appeals from a judgment against Mm.

The right of the defendant to the office in question depends entirely upon the fact, wnether at the time of his appointment there was or not a vacancy in the office. If there was no vacancy, there could be no valid appointment, considering the election of plaintiff to the office, his prior commission and qualification thereunder.

The Constitution of 1879, Art. 195, provides : “ * * Whenever any officer, State, judicial, parochial, municipal or ward, may change his residence from this State or from the district, parish, municipality or ward in which he holds such office, the same shall thereby be vacated, any declaration of retention ot domicile to the contrary notwithstanding.”

We are satisfied that representations were made at the time to the Governor that fully justified his belief that a vacancy existed in the office in question, and induced the appointment of the defendant to fill the same; but the real facts of the case were shown on the trial of this suit, and are found in the record, which force us to conclude that, in point of fact, a vacancy did not exist; and that, therefore, the second commission issued in error.

The real facts, as we gather from the evidence, are substantially these: that the plaintiff, after qualifying as justice of the peace, and entering on the discharge of the functions of the office, was taken sick— a sickness affecting him physically and mentally. About the 10th of March, 1880, acting under the advicg of friends, he left the parish temporarily for the purpose of receiving proper medical attention at the Charity Hospital, in the city of New Orleans. He remained in that institution till the following September, when he left and went to Algiers, where he stayed three weeks, and then returned to the parish of St. Mary; that before commencing this proceeding, his health was restored, and he was in the complete possession of his mental and physical faculties. We are satisfied that McGregor’s absence from the parish of St. Mary under these circumstances, does not constitute the “ change of residence ” from the parish and ward .where his official duties were to be performed, contemplated by the article of the constitution referred to as effecting a vacating of an office.

Having been elected to the office, having been duly commissioned and qualified according to the requirements of the law, the plaintiff was entitled to hold and enjoy the same, unless he had in some way forfeited his right thereto. This we do not find to be the case for the reasons stated. The commission to the defendant having issued, in error, cannot deprive him of that right; and, in fact, was without legal effect as relates to such right. 21 An. 490; 24 An. 19.

The question discussed as to the right of the Governor to remove' certain officers and in certain cases, is not involved in this proceeding. It is not pretended that the plaintiff bad been removed or that any law had lodged in the Governor, the power of removal; but, that by a change of residence, he had vacated the office. There is no force in the argument that the plaintiff was debarred from claiming the office by acts of acquiescence in the incumbency of the defendant, which acts simply consisted in receiving from the defendant costs, to which the plaintiff was entitled, accruing whilst he was exercising the functions of the office.

We are satisfied, too, that the act under which this proceeding was instituted, is constitutional, and that all the objects of the act are fully covered by its title; and that the title of the act, which is: “ An act to regulate proceedings in contestations between persons claiming judicial office,”' indicates clearly that its provisions were intended to apply to the office in question; and that the provisions for the contestations prescribed in the body of the act, are in due conformity to the title.

There is no question but that the defendant was, under his commission, tide facto officer, and that his official acts have been performed under the color of office, and are protected thereby from nullity.

The judgment appealed from is affirmed with costs.

Dissenting Opinion.

Poché, J.

I am not satisfied that the amount involved in this case •exceeds one thousand dollars, exclusive of interests — a state of facts which the appellant must show affirmatively. I think that the appeal ■should have been dismissed, and henee I dissent from the opinion and ■decree of tlie majority of the Court.


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

text:
    No. 6675.
    Joachim Borde vs. Widow Wm. Erskine et al. Mrs. J. A. Fernandez, a Third Person, Appellant.
    On the Motion to dismiss.
    ■When the Appellant files a supplemental petition for the purpose of having one of the Appellees cited, who had been omitted in the original petition oí appeal, no additional bond needs be furnished. The original bond in favor of the clerk of court will suffice.
    Illegal service of citation of appeal, not attributable to the Appellant, will not cause the dismissal of the appeal.
    Although the proper and regular mode of perfecting the Transcript, is by a writ of Certiorari, it is useless to issue such writ when certified copies of the missing documents have been filed. Affirming the rule in City of Baltimore vs. Parlange, 25 An. 335.
    On the Merits.
    Mortgage creditors, ruled into court to show cause why their mortgages should not be erased, on the ground that the mortgaged property was judicially sold to efíeot a partition, — have the right to show and urge the nullity of the sale.
    When, under tlie provisions of Article 132 of tlie Constitution of 1868 and Act Ko. 40 of 1869, a plantation was divided into lots oí from ten to fifty acres, hut, at tbe sale, the auctioneer announced that he would offer one lot first and that the purchaser would have the privilege of taking the other lots at the same price, and the sale was made accordingly, — the mandate of the law that such lots be sold separately, has not been obeyed, and such sale is null and void.
    APPEAL from the Second Judicial District Court, parish of Plaque-mines. Pardee, J.

      Sambola & Ducros and Thos. J. Semmes, for Mrs. Fernandez, Appellant.

      Carleton Hunt, J. Ad. Hosier, Kelly & Lasarus, J. B. JSustis, for the Mortgage Creditors, Appellees.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Manning, C. J.

The plaintiff instituted a suit for the partition of a-plantation owned by him in common with the defendants, in which there was rendered,a judgment for a partition by licitation. There was-a sale, and Mrs. Carmen Fernandez was the purchaser. In March, 1877, Borde, the plaintiff, alleging that the property was incumbered with certain mortgages which he describes, and that Mrs. I ernandez was the adjudicatee, and that their erasure is necessary to give her a clear title, took a rule to show cause why they should not be erased. The rule was served on all the joint owners, and upon the under tutor to two-minors who were defendants, whose mother and tutrix was a co-defendant, and also upon the mortgagees, except one. On trial, the rule-was discharged, and Borde appealed. He furnished no bond, and abandoned the appeal.

In April the purchaser prayed an appeal by petition, making all' the mortgagees and owners parties, except Borde, which was granted upon a bond of two hundred and fifty dollars, which was duly executed' with surety. Subsequently, upon discovering that Borde had been-omitted, she filed a supplemental petition supplying the omission, and' there was an order making him a party, and he was cited. No additional- bond was given.

The motion to dismiss is based on several grounds. One of them is that the failure to execute a new and additional bond vitiates the appeal as to Borde, who is a necessary party. This is untenable. The-bond is in favor of the clerk, and all parties to the appeal can recover-on it. And besides, if Borde himself does not complain of the want of an additional bond, it is not for the appellants to complain for him. The-circumstance that Borde’s name was not included in the original petition for appeal would have been fatal, had the defect not been cured by the supplemental petition and citation upon it. We are referred to-several decisions to the effect that those only are parties to the appeal whose names are in the bond. All of them are under the old law which required the insertion in the appeal bond of all the parties, a provision-which sometimes was so incapable of sure fulfillment that the legislature tardily, but effectually, removed the difficulty by substituting the name of the clerk, and authorizing the parties to avail themselves of it.

Another ground for dismissal is the want of proper citation to the under tutor. He was a party to the partition suit, and was regularly cited therein. The citation-of appeal was served on his attorney, which is the proper mode of service on a- non-resident. Code of Practice, article 582. But he is a resident of the State, and was at that time, if the sheriff’s return be correct, absent. The service should have been at his domicil. Ratliff vs. Creditors, 14 La. 292. Under the act of 1839, an appeal will not be dismissed, on the ground of irregularity in the’ service of citation, if it is not imputable to the appellant. We think that-statute protects the appellant in this case. She alleged in her petition of appeal that -the under tutor was a resident of New Orleans, and' prayed for his citation. The sheriff should have known how to cite-him. There is nothing before us to show that the appellant, or even her attorney, misdirected the sheriff, and by her own fault caused an improper service to be made.

Another objection is urged that the record is incomplete, and the appellant has attemped to supply its deficiencies by filing along with it-a copy of a missing paper. The clerk also makes a supplemental certificate as to some omitted words in the transcript. These omissions are attributable to the clerk, and should not prejudice the appellant. The proper and regular mode of perfecting the transcript is by a writ of certiorari, but, as was said in Baltimore vs. Parlange, it is useless to-order the writ when certified copies of the missing documents have been filed. 25 An. 335.

The facility for dismissing appeals that formerly existed, and of which parties constantly availed themselves to the great detriment of substantial justice, has been restricted by the wise substitution of an officer to the names of the litigants in the appeal bond, so that an appeal by motion can rarely be dismissed for technical objections. It would be an equally wise amendment of the law, if the process of taking and serving an appeal by petition were simplified by some equally effectual means.

The motion to dismiss is denied, and the case is continued with leave to the appellant to have the under tutor properly cited.

On the Merits.

The opinion of the Court was delivere’d by

Levy, J.

This appeal is taken from a judgment of the District Court discharging a rule on certain mortgagees for the cancellation Of their mortgages on certain property adjudicated to Mrs. J. A. Fernandez at a partition sale, made by order of the District Court, on the 2Ith of June, 1876.

The property thus adjudicated consisted of three tracts of land, acquired at different times, all of which comprised what is known as the “Alliance Plantation.” It was owned by Joachim Borde, one-eighth, George Urqukart one-fourth, Mrs. George Urquhart one-fourth, Mrs. Ernestine Erskine one-eighth, the minors Mary Erskine and Clementine Erskine, together, one-fourth.

Borde instituted a suit praying for a partition by lieitation, alleging that said property was not susceptible of a division in kind.

There was an order directing an inventory and appraisement; all the property, including the movables thereon, were appraised in block at the sum of $30,000, and there was judgment decreeing that “a partition by lieitation be made of the property mentioned in plaintiff’s petition and described in the inventory of the property taken by C. Y. Thibaut, Recorder, to wit: ” (describing the three tracts or parcels of land and the movables.) It was further decreed that “ all of the above described property be sold by C. E. Girardey, auctioneer, of the City of New Orleans, after due compliance with the legal requirements and formalities, for one-third cash, the balance in equal instalments in notes secured by mortgage and vendor’s lien upon the property sold, bearing eight per cent, per annum interest from date until paid, and payable at one, two and three years after date,” etc. The judgment recites that ■the parties consent to this partition and sale.

The several tracts comprising the plantation are:

1st. A tract or plantation previously belonging to E. B. D. DeGruy, in the parish of Plaquemines, on the right bank of the Mississippi River, measuring twenty arpents front on the said river, ten of which have a ■depth of forty arpents, and ten a depth of eighty arpents, bounded on the upper side by lands of Bonaventure Bayhi, etc. On this tract (first) are the residence, sugar house, machinery, cabins, stables and other improvements.

2d. A tract of ten arpents front, with a depth of eighty lying immediately below and adjoining the first tract or DeGruy plantation.

3d. Another tract with a front of nine arpents and a fraction and a depth of eighty arpents, lying immediately below and adjoining the tract last mentioned (second). There are no buildings and improvements on the second and third tracts.

Joachim Borde acquired his one-eighth interest in these properties by purchase from Joha W. Erskine, one of the heirs of Wm. Erskine, .and in his petition for a partition he alleges his ownership' of an undivided eighth of a certain sugar plantation, known as the Alliance'Plantation, with buildings and appurtenances thereof and stock thereon, ■situated in the parish of Plaquemines, etc., measuring twenty arpents front on the Mississippi. He then alleges his ownership of one undivided eighth interest in the two other tracts, separately describing them. As we have before stated, the three tracts and the movables are appraised in block, although they are separately described in the inventory.

There- existed upon the properties described the following mortgages:

The undivided eighth of Mrs. Erskine was incumbered, as to all the tracts, with a tacit and legal mortgage against her as natural tutrix of her two minor children, duly recorded.

The undivided fourths, each of George TTrquhart and his wife were incumbered as follows: By a mortgage on the tract or plantation first above described, recorded March 9th, 1874, securing four promissory notes of $3000 each (marked No. 1), and two promissory notes, one of $3000, and one of $2500, these last two marked No. 2, all dated 24th February, 1874, and payable eleven months after date, in favor of L. F. G. Generes; this mortgage affects the first and second tracts described to the extent of said mortgagors’ interests, and contained the pact of non-alienation and a stipulation that, in default of payment, the mortgaged property may be sold for cash, without benefit of appraisement. Of the notes of series No. 1, three are held by H. S. Buckner, and one by the Louisiana Savings Institution. The notes of the second series, amounting to $5500, are held by Mrs. Rosa Oammack.

The undivided fourth of George Urqubart in the tracts first and second is further incumbered by a - mortgage, recorded on 16th March, 1876, in favor of Felix Labatut, to secure the payment of two notes of $2000 each, dated March a29th, 1871, payable nine months after date. These two notes are held by the New Orleans Insurance Company.

The undivided fourth of George Drquhart in the third tract is incumbered by a mortgage, recorded April 11th, 1876, to secure a note of $3719 40, dated March 31st, 1876, payable 1st December, 1876. This note is held by R. Beltram.

To recapitulate briefly, the condition of the properties as to owner-, ship and incumbrances was as follows: three undivided eighths of the three tracts, owned respectively by Borde and the two minors Erskine, unincumbered; one undivided eighth, owned by Mrs. Erskine, incumbered as to all three tracts by a legal mortgage in favor of her minor children; one undivided fourth, owned by Mrs. Urquha.rt, incumbered as to the first tract by concurrent mortgages held by H. S. Buckner and the Louisiana Savings Institution, and as to the second tract by a mortgage held by Mrs. R. Oammack; and one undivided fourth, owned by George Urquhart, incumbered as to the first tract by concurrent mortgages held by H. S. Buckner and the Louisiana Savings Institution, as to the second tract by a mortgage held by Mrs. R. Oammack, as to both the first and second tracts by a mortgage held-by the New Orleans Insurance Company, and as to the third tract by a mortgage held by R. Beltram.

The property being thus incumbered by this complicated congeries of mortgages, affecting one, an undivided interest in all three tracts, one an undivided interest in two of the tracts, and others an undivided ■interest in separate tracts only — all three tracts were sold in block for a lump sum, and rule taken on the mortgagees to show cause why — in .order to consummate the partition among the joint owners of the land— their mortgages should not be erased, reserving to them the right to ■participate with the owners in the partition of the lump sum for which the lands were bid off in block.

The defendant in rule, appellee herein, in his answer to the rule, after setting forth his ownership of the mortgage notes, given as above mentioned by Urquhart and wife, and the terms and stipulations of the ■mortgage securing the same, alleges that the first tract described, the undivided half of which was specially mortgaged to secure the notes described, constitutes a portion of the Alliance ” sugar plantation, ■referred to in the rule; that the said plantation, as a whole, consists of three parcels or tracts of land as before mentioned and described; that the first tract is the one of which one-half is mortgaged as stated; that all the buildings, improvements, etc., upon said plantation are upon said tract, and there are no improvements on the other tracts; that the portion affected by his mortgage is relatively of much greater value than the other portions thereof; “ that the judgment under which the pretended sale was made, directed each of the said three tracts of land to be sold as a distinct property; that upon its face the judgment under which the pretended sale is alleged to have been made, purports to be a consent decree between the parties interested in the ownership of the entire plantation, made up as aforesaid of the tract affected by the mortgage, upon which were all the buildings, improvements, etc., and of ' the other two tracts upon which there were no buildings whatever. That the sale referred to was not made in conformity with the judgment directing the sale in three separate parcels as aforesaid, but after being subdivided into lots of fifty acres and less, was not sold in such lots, but one of said lots was first put up by the auctioneer to be bid for at so much an acre, the bidder to have the option of taking the whole plantation at the price bid per acre on the first lot, and, accordingly, J. A. Fernandez, for his wife, having bid $8 75 per acre on that lot, the whole plantation in block, containing the three distinct tracts above described, was adjudicated to her for the price of $20,650 26.” “That, as one who was no party to said partition proceedings, but whose interests are directly affected thereby, he has the right to aver and prove the truth with regard to said pretended sale, though it should contradict the proces verbal of the auctioneer. He pleads as a matter of law, that the sale of property, had to effect a partition among owners, where the sale is not a probate sale, does not entitle the purchaser to have the mortgages previously granted by the co-owners upon their respective interests released, but, that the property can only be sold subject ■to such mortgages, especially when such sales are made by consent oí parties, whether in’or out of court; and that, in this case, the pretended sale was made in disobedience of the express requirements of the judgment ordering the sale, and of the Oonstitution and laws of the State, with reference to subdivisions into lots of fifty acres or less, and is, therefore, void; that the act of mortgage, securing his notes, contains the pact de non alienando, which precluded his mortgagors from com •seating to any alienation of the property for the purpose of partition or any other purpose to the prejudice of his mortgage, and that such consent cannot defeat his mortgage rights. That it does not appear that experts were appointed by the court to determine whether or not the property was susceptible of partition in kind.

The issues thus raised and questions presented for consideration and decision, are dependent, first, upon a decision of the legality and validity of the sale. If the sale was not made in conformity with the -requirements of the law, can the defendants in the rule urge the nullity and have it declared void and of no effect. A rule was taken against the mortgagees requiring them to show cause why their mortgages ■should not be cancelled. Why cancelled? Because, as alleged, the effect of the sale at which the purchaser claims to have acquired the property, operates to cut off all pre-existing mortgages. What cause could be more conclusive and potent to defeat such effect than that the sale under which the purchaser claims to exercise the right, is not a valid one, is indeed no sale at all ? The right of the mortgagee to raise this question in his own defense, and as an assertion of his mortgage rights, and to show that they are unaffected by the proceedings on which purchaser relies, is plain to our minds. The joinder of issue practically involves, from the standpoint assumed by the plaintiff in rule, the question whether or not there was a legal, valid sale, binding upon all parties interested, in its effect and operation. It is not disputed that the sale was made subject to the requirements of the Oonstitution of 1868 and the law in force at the time. It is, however, denied, that those requirements were fulfilled or complied with, and if such is the ease, the sale cannot have the effect claimed for it, so far as the mortgages resting upon the property in favor of appellee are concerned.

Article 132 of the Oonstitution of 1868 declares; "All lands sold in pursuance of decrees of courts shall be divided into tracts of from ten to fifty acres.” Here, the lands sold were divided into such tracts, but it is certain they were not sold by lots. Act No. 10 of 1869, entitled “ An act to provide for carrying into effect the one hundred and thirty-second ■article of the Oonstitution of the State,” in the third section provides, “ that whenever a sale of land is to be made by decree of court, or otherwise than is specified in the first section of this act (which relates to sales under an execution or writ o£ seizure and sale), then the parties in interest, etc., shall cause the tract or tracts- of land about to be sold to be divided and plots made of the same in lots of from ten to fifty-acres each, for the purpose of the sale.” * * * “ Such officer shall sell the said lots separately.” These constitutional and legislative requirements are to our mind mandatory. The evidence shows conclusively that the lots were not sold separately; on the contrary, although divided into lots as required by law, these lots were not offered and sold separately. One lot was offered separately, and in the offer of that by the auctioneer was the announcement that the purchaser thereof should have the privilege of having all the other lots adjudicated to him on the same terms and at the same price as the first lot. There was, then, no sale of the lots separately. The remaining forty-eight lots, and all the movables were really sold and adjudicated in block. Non constat, that, if offered separately they would not have brought a higher price. At any rate, the sale was not made in accordance with the then existing law, and we cannot maintain its validity; and if the sale was not valid, it does not cut off the rights of the mortgagees.

Under this view of the ease, we do not think it necessary to pass upon the other questions raised. They may become, under subsequent proceedings between parties in interest, the subject of adjudication, and these parties are all free to assert such rights and claims as they have.

It is not for us to decide upon the-policy or impolicy of the provisions of the organic or statutory law, or to be influenced by mere considerations of convenience or inconvenience. We are only called upon to construe the law according to its intent and meaning and apply it to the facts as they appear from the record.

The judgment appealed from is affirmed at costs of Mrs. Fernandez, appellant, in both courts.

Lehearing refused.

The Ohief Justice recuses himself in this ease, having been of counsel.


text:
    No. 6751.
    John P. Cousins vs. H. L. Kelsey and Wife.
    A claim for tlie recovery of an irregular deposit is only prescribed by ten years.
    Money received by the wife, as a deposit, with the knowledge and consent of the husband, , constitutes a debt of the community, for which he is liable.
    APPEAL from the Sixth District Court for the parish of Orleans. . Saucier, J.

      L. JS. Simonds for Plaintiff and Appellant:
    First — Defendant pleads simply tlie general denial. He sets up no claim in reconvention, compensation or otherwise.
    Second — The only issue of fact to be decided is: Did plaintiff deposit with Mrs. Kelsey as much as 61140 ? This is proved by plaintiff, and corroborated, independently of the admission of Mrs. Kelsey. Much more than $1140 is proved.
    Third — When the wife acts as agent of the husband or of the community, her admissions in connection therewith may be proved, and are binding, although she cannot be sworn as a witness.
    Fourth — A claim for money deposited is prescribed by ten years only; and prescription begins to run, in case of a minor, from his majority only.
    Fifth — E^en if plaintiff’s claim be not fully made out, there being no contradictory evidence, the judgment should have been one of nonsuit only.

      S. Belden for Defendants and Appellees:
    First — A community between the parties cannot bind the husband, unless the money went into the community.
    Second — Mrs. Kelsey’s declaration cannot be evidence against her husband.
    Third — The mere fact that Mrs. Kelsey is cashier for her husband does not make her his agent as to her transactions with other persons.
    Fourth — The prescription of three, five and ten years applies even after his majority.
    Fifth — The prescription applies, regardless of his age, from date of deposit.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff sues for $1140 with interest, alleged to have been deposited by him with the defendants, out of his earnings from 1859 to 1868, for safe-keeping and subject to the obligation of returning the same.

We gather from the evidence that plaintiff, left an orphan at the age of thirteen, was taken charge of by defendants and received, as a member, into their family. In 1859, at the age of about seventeen years, he found occupation as a railroad employee, and, with the exception of three years during the war, was so engaged, though still considering the house of defendants as his home, until 1868, when he married and their relations ceased. He earned wages, increasing gradually, from $50 to $140 per month. Under the advice of Mrs. Kelsey, he deposited with her the surplus of Ms earnings above necessary expenses to be laid up, as she suggested, “ for a rainy day.” The evidence satisfies us that the amounts so deposited with her certainly aggregated as much as the sum claimed; and as the answer is a general denial and no offsets are pleaded or claimed, the liability to that extent must be taken as established, unless there are legal defenses to the demand. The suit was originally against the husband and wife in solido, but was dismissed as against the wife, and is now urged against the husband alone as a community debt. The defenses are threefold, viz:

1st. The prescriptions of three and five years. Evidently they do not apply to this claim, which is not a loan but an irregular deposit, and only barred by the prescription ol' ten years. The action was brought within ten years from the date of plaintiffs majority, and was, therefore, within the term. Prescription is suspended by minority, except in cases otherwise provided by law, and as to this prescription no such provision is made. Rev. C. C. 2522; Becklain vs. Henderson, 23 An. 447; 11 La. 62; 10 An. 575; 6 An. 109; 13 An. 340.

2d. That the claim being based on an alleged contract with a minor, cannot be enforced. This objection is only available to the minor and not to the person dealing with him. Rev, O. C. 1791.

3d. That judgment cannot be recovered against the husband as ■head of the community, because the dealing was with the wife alone. The evidence is clear that the husband was cognizant of the dealing, knew that his wife was receiving plaintiff’s money and made no objection to it. This is equivalent to authorization. The money is presumed to have enured to the benefit of the community, and there is no countervailing proof or suggestion. It was a debt contracted during the marriage and must be acquitted out of the community fund. Rev. C. C. 2403. See, also, Chaix vs. Villejoin, 7 La. 277; Scanlan vs. Warwick, 10 An. 30.

We are not altogether favorably impressed by this claim. Its staleness is not satisfactorily explained, and we are at a loss to understand why the offsets, which might have been justly claimed by defendant, ■were not pleaded.

But on the case as presented by the pleadings and evidence, the law undoubtedly entitles plaintiff to a judgment; and although the judge • a quo thought otherwise, he favors us with no reasons for his opinion, . and it is certainly not sustained by the law and evidence.

It is, therefore, ordered, adjudged and decreed that the judgment • appealed from be reversed, and it is now decreed that plaintiff have judgment against the defendant, H. L. Kelsey, for the sum of eleven hundred and forty dollars with legal interest thereon from judicial dei mand and with costs in both courts.

Rehearing refused.


text:
    No. 7994.
    Alfred Marchand vs. J. O. Noyes et al. City of New Orleans, Garnishee.
    It was clearly within the power of thelower Court, in the exercise of a sound discretion, to set the judgment aside, before signature, and grant a new trial. And that sound discretion was properly exercised in a case like this, in. which interrogatories propounded under garnishment proceedings to a municipal Corporation, were not answered and were taken pro confessis, owing to the excusable oversight of its Mayor.
    APPEAL from the Fourth District Court for the parish of Orleans. Houston, J.

      TV. 8. Benedict and Jos. P. Hornor for Plaintiff and Appellant:
    A judgment against garnishee, legally entered, cannot be set aside by motion. The garnishee must resort to a direct action.

      Ghas. P. Buck, City Attorney, and Wynne Rogers for City of New Orleans, Garnishee and Appellee: •
    A writ of fi. fa. is the essential basis of a valid garnishment process. 28 An. 319, Boss & Co. vs. Merchants’ Insurance Company. A fortiori, there must be a prior valid and subsisting judgment from which the writ takes its life. 21 An. 37$ 7 Bob. 505; 24 An. 82, Lefebre vs. Landry; 21 An. 7; Collins & Leake vs. Friend, 10 Bob. 136; Boss vs. Whaley, 14 An. 374.
    ‘ ‘ The garnishee is entitled to proof of the existence of a judgment and fi. fa. as a prerequisite to any judgment against him.” Erode vs. Firemen’s Ins. Co.. 8 B. 244; Featherstone vs. Compton, 3 An. 380.
    Where the record brought to this Court discloses only a judgment taken pro confessis against á garnishee, without proof of a prior judgment or execution, incidental to which such judgment was entered, and without proof of service of interrogatories, such judgment against a garnishee and an execution under it, will not constitute a sufficient basis for a proceeding against another or second garnishee.
    A judgment entered pro confessis against a garnishee for failing to answer, is under the control of the court which rendered it, until signed, and the court may, at anytime, in the exercise oí its sound legal discretion, before signature, reopen same, and permit a garnishee, whose good faith is not impeached, to file answers to the interrogatories — more especially when the garnishee is a municipal corporation which is under the protection oí the law, and cannot be permitted to suffer detriment through the unintentional oversight of its officials. Elder vs. Bogers, 11 An. 606; Bose vs. Whaley, 14 An. 374.
    Whether the action of the court a qua, in the first instance, reopening the case and permitting the garnishee to file answers after the judgment pro confessis had been entered, be proper or not, a plaintiff in execution, who traverses the answers filed, and finally appeals only and specially from the judgment dismissing his traverse, after trial on the merits thereof, brings to the court for review nothing but the merits of the traverse. Besides, by such action he must be considered as having waived and abandoned all rights he might have had under the original judgment, taking the interrogatories for confessed.
    ' The plaintiff in traverse, to succeed against the garnishee, must prove an absolute and unconditional indebtedness by the garnishee to the defendant in execution. 29 An. 223; 16 An. 349, etc.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff, having recovered a final judgment against the Mississippi and Mexican Gulf Ship Canal Co., issued a fi. fa. and served garnishment process, with the usual interrogatories, upon the City of New Orleans. The sheriff’s return showing that the petition, citation q,nd interrogatories in garnishment had been served on the city on May 20th, 1879, and no answers having been filed, on motion of plaintiff’s counsel, the interrogatories were taken for confessed on May 31st, and judgment was rendered against the city for the full amount of plaintiff’s claim.

Thereafter, on June 9th, the judgment not having been signed, the city filed a rule for a new trial, on the ground that the return of the sheriff was erroneous, that the interrogatories were not served on the Mayor until May 27th, and that the delays had not expired when the judgment.was rendered.

On the trial of this rule, the city was not successful in contradicting the return of the sheriff, who swore very circumstantially to the correctness of the return; but it did appear that, through some accident or inadvertence, the matter escaped the attention of the Mayor until May 27th, when he observed the interrogatories on his desk and supposing . they had just been received, transferred them to the proper parties for action, as having been served on that day, which accounted for the delay in answering. The judge, however, in the exercise of his discretion, set aside the judgment, granted a new trial, and permitted the city to file her answers nunc pro tunc.

It was clearly within the power of the court, in the exercise of a sound discretion, to set aside the judgment, before signature, and grant a new trial. C. P. 547; 10 L. 209; 8 An. 92; 14 An. 374; 11 An. 606; 10 An. 766.

We think, in the present case, its discretion was soundly exercised for the reason assigned by the judge, that a municipal corporation should not be made to suffer for the unintentional neglect of an officer, like the Mayor, overwhelmed with a multiplicity of public duties.

The answers of the city absolutely negative the existence of any indebtedness to the judgment debtor of plaintiff.

A traverse was duly filed, and, after trial judgment was rendered dismissing the same, from which plaintiff took the present appeal. We certainly find in the record no evidence received, or even offered, which could possibly sustain the traverse.

It is not proved that there was any money actually at the credit of the drainage fund.

It was shown that warrants, negotiable in form, had been issued and delivered beyond the amount of all receipts to that fund, and it is not shown that this was against the will of the Ship Canal Co., as might well have been shown by plaintiff, iffsuch were the fact.

It is shown that, by the contract of 1876, the company had absolutely-discharged and released the city from all claims and demands of any-nature or kind whatever. If there be any fraud in these transactions, creditors of the company may possibly attack them in proper actions, but certainly not by way of seizure under fi. fa.

It is, therefore, ordered that the judgment appealed from be affirmed, at appellant’s cost.