text:
    No. 8098.
    State of Louisiana vs. I. W. Patton et al. State of Louisiana ex rel. J. A. Shakespere et al. vs. Isaac W. Patton et al. (Consolidated Cases.)
    Articles 191 and 192 of the present Constitution are not self-operative.
    The provisions of Act 2sTo. 7 of the Legislature of 1870 and of the laws amendatory thereof,, for the election of the Mayor and Administrators of the City of New Orleans, are still in force.
    The municipal election held in the City of New Orleans for the Mayor and Administrators-thereof, on the second day of November, 1880, is legal and valid.
    APPEAL from the Civil District Court, parish of Orleans. Houston J.
    Miller, Finney & Miller, for the Relators and Appellees.
    First — The laws in force when the Constitution of 1879 was adopted, provided for a municipal election in the city of New Orleans on the Tuesday after the first Monday of November, 1880. (See Acts 1870, Extra Sessions, p. 31, Sec. 4 ; Acts 1871, p. 145 ; Acts 1877, p. 89, Sec. 2).
    'Second — The Constitution continues in force all laws not inconsistent with it. (Article 258).
    'Third — The law in force, which required an election to take place on the first Tuesday after the first Monday in November, was not inconsistent with article 262 of the Constitution, the object of which article was to direct an election in December, 1879, for the purpose, only, of obtaining the expression of the sense of the people on the adoption of the Constitution, and of an election of State officers to serve under that Constitution ; but the time of holding the municipal election in New Orleans was not changed, or even touched by that article, manifested plainly by its scope and purpose, and by the article 268, which expressly directs that in 1879 no municipal election shall be held in New Orleans.
    Rourth — -Nor is there any inconsistency between the laws in force, fixing city elections for the first Tuesday after the first Monday in November, and the provision in article 268 of the Constitution, “ that the Legislature shall provide for an election in N ew Orleans during 1880.” It required the new legislation to disturb the existing laws, and that contemplated new legislation not having been supplied, the legislation on the statute book when the Constitution was adopted, was necessarily maintained, and was in force when, in accordance with its provisions, the election in this city was held on the Tuesday after the first Monday.
    Fifth — Still less can any inconsistency be deemed to exist between the laws in force, requiring an election in November, 1880, and articles 191,192 of the Constitution, which fix municipal elections in New Orleans on the day of the general State elections, to be held on the •third Monday in April, and which provide that municipal elections ■ •shall not occur oftener than once in four years — for it is clear the time of the first election in New Orleans is not touched by these articles, operative four years hence, and leaving the time of the^irsi election under the complete dominion of the law in force when the Constitution was adopted, and not displaced by that instrument.
    Sixth — The intention of the Convention must be sought by construing all the articles of the Constitution, on the same subject-matter, from •which it plainly appears that an election for municipal offices in New' Orleans was contemplated during the year 1880. It must be .assumed that the Convention appreciated that elections would be brought about by the new legislation, if furnished; or in the event of the failure of that new legislation, by the existing laws main- • tained in force ; that construction which maintains the validity of the election in November effectuates the plain intent of the Constitution, harmonizes the articles supposed to conflict, gives effect to-the laws in force to fix the time for the first election, and maintains ■ the articles of the Constitution as operative for the future — all the effect can be attributed to those articles consistent with the purpose and spirit of that instrument.
    J. Ward Gurley, Jr., on the same side.
    The construction and interpretation of constitutions is governed by the' same rules and principles that are applicable to statutes.'
    The Constitution of 1879 continued in force, for the year 1880, the-existing laws relative to municipal elections in New Orleans, unless-modified by the General Assembly.
    By the existing laws the days for municipal elections did not depend-upon the event of the general State election, but both events (the-general and municipal election) were to take place on one and the same day, which day was definitely fixed “ the first Tuesday after the first Monday in November.”
    The General Assembly, by its failure to modify those laws, adopted them, so far as they related to municipal elections, as effectually as-if it had passed an affirmative statute designating the day.
    Spencer & White and Thos. J. Semmes for Defendants and Appellants.
    First — The authority of a statute fixing the time and manner of holding the election was essential to the validity of the election.
    Second — The statute of 1871, which fixed the election biennally at the time for electing members of the General Assembly is no authority for an election held on the 2d of November, that day being-neither biennial nor the day fixed for electing members of the General Assembly.
    Third — If the terms of the Act of 1871 are to be construed as authorizing the municipal election on the day fixed for electing members-of the General Assembly in 1871, without regard to subsequent constitutional modification, then Monday was the day, and the election. on Tuesday was an absolute nullity.
    Fourth — If the statute of 1871 did not fix inflexibly; as the day for the-city elections, the day for general elections, as at that time provided, by. law, but contemplated following subsequent constitutional changes, 'then each and every change must be followed and the day fixed by the Constitution of 1879 must be adopted.
    Fifth — The rule applies with increased significance with reference to the-second section of the Act of 1877.
    Sixth — The Legislature of 1877 had no constitutional power to fix thef time and place for electing members of the General Assembly, they were determined by express constitutional provision — hence, beyond the scope of legislative authority. The second section of the Act of 1877 was, therefore, a mere legislative enunciation of the constitutional day, without inherent validity, depending on the Constitution of 1868 for its merely declaratory existence, and of necessity ceased to be legally existant, when the Constitution of 1868 was expressly repealed.
    Seventh — The third section of the Act of 1877 was a valid exercise of legislative authority — it was not, therefore, repealed by the repeal of the Constitution of 1868 — and not being inconsistent with the Constitution of 1879, was in existence on the 2d day of November, and is fatal to the plaintiff’s case.
    Eighth — Concede that the Act of 1871 in terms fixed the election in November every two years, then it has been repealed by the Constitution of 1879.
    Ninth — The Constitution of 1879 after fixing the first State election in December, 1879, and thereafter in April every four years, provides that the municipal election in New Orleans shall be held at the same time as the general State election, and not oftener than once in four years.
    Tenth — Paraphrased, the provisions of the statute say : the municipal election in New Orleans shall be in November, and every two years ; and the Constitution, that such election shall be in April, and everyr four years.

    Eleventh — The conflict is patent, the repeal express.
    Twelfth — The provisions of Article 268 make it obvious that the Convention intended to make the provision of Article 192 at once operative.
    Thirteenth — Art. 268 was rendered necessary, not only by the provisions-of Arts. 191 and 192, but likewise in consequence of those of Arts. 263 and 262.
    Fourteenth — To disregard the mandatory words shall be in April and substitute shall be in November, would be expunging the words of the Constitution, and be violative of every canon of construction.
    Fifteenth — To disregard Article 268 would be a stultification of the Convention.
    Sixteenth — There is no claim on the part of the defendants that the Constitution has prolonged their tenure for four years.
   The opinion of the Court was delivered by

Bermudez, C. J.

The question submitted for solution in the above consolidated cases simply is :

Was the municipal election, held for Mayor and Administrators, in the City of New Means, on the second day of November, 1880, authorized by law ?

If it was, then the relators have been duly elected and must be inducted into office.

If it was not, then the defendants, as actual incumbents, are entitled to hold over until they be otherwise superseded in their functions.

It is rudimentary that the existence of a law, providing for the time and manner of holding such an election, is essentially necessary for its validity.

Hence, two questions present themselves :

1st. Was there any law in force when the Constitution of 1879 went into operation fixing a day for the holding of municipal elections in New Orleans ? If there was such law, what was that day ?

2d. Was that law abrogated, or that day changed by that Constitution ?

If there was such law, and it fixed the 2d of November, 1880, and if it was not annulled or amended by the Constitution, then it was continued in existence, at least up to that time, and the election which took place on that day is not a nullity but is legal and valid.

If there was no such law, or if there being one, it fixed another day, or if the Constitution itself designated a different time from that on which the election was held, then that election is a nullity, is illegal and invalid.

A close scrutiny of the legislation on the subject now becomes necessary.

In 1870, the City of New Orleans, created in 1805, was reorganized. Under the provisions of Act 7 of that year (the present charter) the first mayor and administrators of the corporation were (sec. 4,) to be .appointed by the executive and to continue in office until the first Monday in November, 1870, or until their successors were elected and qualified. On the same first Monday in November there was to be an election for mayor and three designated administrators, whose successors were to be elected every two years thereafter.

On the first Monday of November, 1871, there was to be an election for the remaining four designated administrators, whose successors were likewise to be elected every two years thereafter.

In 1871 this section 4 was amended by Act No. 48, the second section of which provides : That elections for mayor and the several administrators of the City of New Orleans shall be held biennially, “at the time of the election for members of the General Assembly.”

This meant, under article 17 of the Constitution of 1868, which was then in existence, the first Monday in November, and every two years thereafter.”

The amendment of section 4 of act 7 of 1870, by section 2d of act 48 of 1871, coupled with article 17 of the Constitution of 1868, which became a component part of it, then read substantially:

The election for mayor and administrators of the City of New Orleans shall be held biennially from 1870 on the first Monday of November.

In 1874 the Constitution of 1868 was amended, and the words, “first Monday,” found in article 17, were stricken out, and the words, “first Tuesday after the first Monday,” were substituted thereto, and became part of the article.

In 1877 (no doubt with a view to make the constitutional amendment more explicit and more extensively known), the Legislature passed Act No. 58, the second section of which provides that elections for representatives in the General Assembly shall be held on “the first Tuesday after the first Monday in November, 1878, and every two years thereafter.”

So that it is patent that there was a law in being on the first of January, 1880, when the present Constitution was promulgated, providing for a day for the holding of the election of mayor and administrators of the City of New Orleans, and that day was theytrsf Tuesday after the first Monday of Novembe 1 — that is, for the year 1880, the 2d of November, the day on which the election assailed was actually held, and on which the relators were actually elected.

There was passed since the 1st of January, 1880, no statute whatever on the subject.

It is, therefore, clear that, unless the law as it stood on the 1st of January, 1880, was abrogated or modified by the Constitution of 1879, it is still in force ; and, consequently, that the municipal election held on ¡the 2d day of November, 1880, is legal and valid.

The State and the relators claim that the law was not affected, while the defendants insist that if the law existed, which is denied, it was annulled by the Constitution of 1879.

The existence of the law once established, the burden was upon the defendants to show its abrogation or change.

The Executive of the State having issued a proclamation under that law for the holding of a municipal election, the officers designated by law having held that election, the qualified citizens having voted at that election, and the returns being in favor of the relators, they, having been commissioned and have qualified as mayor and administrators of said ■city, would have at once entered upon the discharge of their respective duties but for the defendants, who, as incumbents, continue in their functions, impeding and obstr icting their induction into office.

The contention is that articles 191 and 192 are obnoxious to the ex- - istence of all legislation (if any) in force at the adoption of the Constitution of 1879, fixing, for the holding of a municipal election in New Orleans, a day different from that appointed by the first article; that the-Constitution having provided that the general election shall take place on “the Tuesday next following the third Monday in April,” and the act of 1871, as subsequently amended (if it exist), providing that municipal elections in New Orleans shall take place on the same day on which the-State election was to be held, the election which took place on the second of November, 1880, not having been held on the day appointed for a general election, is a nullity, and is productive of no effect.

The argument underlying that theory is that, if the act of 1871 prescribed a day different from that designated in article 191, it was thereby abrogated, and that if it appointed the same day it was disregarded, and that, in either case, the election held on the 2d of November, 1880, is a nullity.

The fallacy of the proposition consists in the assumption that articles 191 and 192 became at once operative upon the adoption of the Constitution of 1879, which superseded instantly not only the Constitution of 1868, which it was intended to destroy and replace, but also all laws in conflict with its own provisions.

If it be true that these articles are the only ones in the Constitution on the subject of municipal elections in New Orleans, and that they, went into immediate operation, at the adoption of the Constitution, the pretensions of the defendant would offer great plausibility; but, is it true that these are the only articles on the subject, and that they became instantly operative ?

They read as follows :

Article 191: “ Until otherwise provided by law, the general State election shall be held once in every four years, on the Tuesday next following the the third Monday in April.”

Article 192 : “ Parochial and the municipal elections in the Cities of' New Orleans and Shreveport shall be held on the same day as the general State elections, and not oftener than once in four years.”

We will now proceed to inquire into the object and meaning of the articles invoked, contrasted with others, in pari materia, and that being done, we will construe and expound them.

When the articles of a constitution are subjected to judicial analysis, and criticism for exposition, courts of justice are to be guided by the rules which the wisdom of men has prudently established and cautiously applied in the interpretation of all instruments, whether of a general or local, public or private character, whether intended to regulate the intercourse of nations, states, corporations or individuals among themselves.

The most important and salutary of these rules is, that the whole instrument must first be attentively surveyed, and that the purpose and intention of its authors must next be diligently searched, gathered and deduced from the entire context, so as to make all the parts appear and prove rational, harmonious, efficacious and uniformly conducive towards the practical accomplishment of the objects in view.

A general spirit necessarily pervades and animates the instrument. All matters pertaining to that spirit tenaciously adhere to it and should not be severed from it. All matters not strictly germane, but concordant, should be dealt with as auxiliary and subordinate to it. It 'matters little, or not at all, how irregularly its clauses may follow or precede one another. The important matter is that they be all well' understood and, when comprehended, that they be harmoniously construed, and, if possible, made to co-operate consistently, uniformly and1 prospectively towards a common end. Seeming differences or contrarities should be reconciled ; vitality, power and effect should given to every clause, every article, every phrase, every, word, every iota, which each and all have a particular, significant, determined import and object, so as, in preference, to maintain and enforce rather than nullify, paralyze and destroy. “ To know the law is not to grasp its words, but its force and power.” 9 A. 166 ; 13 A. 345 ; 4 R. 72 ; 3 M. 672 ; 31 A. 440 ; 32 A. 597 ; and authorities there cited. H. D. 264, 783.

There is no higher law, whether in the Constitution of the United States, which is intended, by delegated authority, to bind and protect all alike, or elsewhere, which requires that a State constitution shall be framed in an exceptional manner or form, or that the articles composing it shall be inserted or arranged in a special order. As long as such constitution upholds and promotes the ends of a republican government, and does not clash with the paramount law of the land, each and all the articles which it embodies are, and must be, as effective as if the State which it rules were a solitary, independent and recognized sovereignty.

When the members of the Convention assembled they had before them the lamentable condition of public affairs, as well of the State as of the parishes and municipal corporations within its limits.

The principal object which they contemplated, the main spirit which animated them, the controlling intention which impelled them, was the welfare of the people, and this they proposed to accomplish by a rupture, a divorce from the past whenever practicable, and the formation of an alliance with the future, fruitful of a new government, in the-parishes, in the cities, in the State, whenever feasable. Their thoughts were bent, their efforts combined, concentrated upon such wholesome results.

Indeed, they had specially before them the deplorable state of things in the city of New Orleans, which is the most important State functionary. They had before them the sacred rights and the legal obligations of the citizens, the appalling figure of the municipal debts and liabilities, the alarming depletion of a dilapidated treasury, the crushing depreciation of taxable property, a shameful extravagance of expenditures of public moneys, a scandalous exorbitance of salaries, and, in presence of these calamities, they resolved to create and apply, as far as practicable, effectual relief and adequate remedies.

Hence it is, that by article 253 the Constitution has guarded against an unjust legislative invasion and suppression of the rights of the citizens to a choice of the officers designated ; that by article 254 it directed the General Assembly at its next session, after the adoption of the Constitution, to enact proper legislation to liquidate the city indebtedness and apply the corporate assets to the satisfaction thereof, delegating authority to cancel the charter of the city, and remit its inhabitants to another form of government, if necessary; no salary then to exceed $3500 ; that by article 203 taxation was to continue equal and uniform, and by article 209 was to be limited ; that by article 268 the General Assembly was required to provide for a municipal election in 1880 in the city of New Orleans, or such municipal corporations as may be created within the territorial limits of the parish of Orleans during that year, provision being made thereby, at the same time, for a municipal election in the city of Shreveport, eventually, before April, 1884.

The Convention anticipated and assumed, as an accomplished fact, that the Legislature would carry out their directions and provide for a new government for the city of New Orleans, and for the election of offi•cers receiving reduced salaries. The fact is, however, that the General Assembly, towards the very close of its session, passed a bill intended to further those directions, but that the executive, for considerations which command themselves to the respect of all well-meaning citizens, considering that the measure was not calculated to execute those directions, abstained, in the exercise of a discretion vested by the Constitution, from approving it. The consequence has been that, at the adjournment of the Legislature, there existed no general legislation for the fulfillment of those directions, and, as a necessity, the previous condition of things has continued in operation as effectually as if the Constitution had proved altogether reticent in relation to the citizens, and to the affairs of the city of New Orleans.

We have searched in vain for any direct constitutional provision, and none was pointed out to us, prohibiting the holding oí a municipal election in the city of New Orleans on the second of November, 1880. We have found, however, the first part of article 268, which forbids such election in December, 1879, but it has no present bearing upon the case, as the election assailed did not occur during that vionth. There being no formal or express abrogation or amendment, does any such exist by implication ?

By articles 191 and 192 the Constitution directed that municipal elections in New Orleans must be held not oftener than once in every four years, on the Tuesday next following the third Monday in April, until otherwise provided by law; that being the day fixed for general State elections, and the Constitution so directed, coniingeni upon such general State election actually taking place.

The first general State election was not held on that day owing to article 262, which expressly dispenses with it hac vice, by providing that such election should take place on the first Tuesday in December, 1879, and the first municipal election in New Orleans was not held on this last mentioned day because of the positive prohibition forbidding it and which is contained in article 268.

The contingency of the actuality of both a general and of a municipal election in New Orleans on the same day under the present Constitution has not yet arrived, for the reason that the provisions relative thereto, and which were not intended to go then into effect, had remained and continued in suspense until April, 1884, or such other day as the Legislature may designate under article 191.

The term of service of the State officers chosen in December, 1879, was by article 265 to terminate as if they had been elected in April, 1880. They were thereby subjected to the operation of article 191 providing for an election in April. Article 268 having forbidden a municipal election in New Orleans in December, 1879, articles 191 and 192 did not bring such municipal election within their operation, and necessarily left them within the purview of the law in existence on that subject on the 1st of January, 1880, when the present Constitution was promulgated. The reason for which an election was authorized in 1880 was the expectation that the Legislature would give a charter to the city. As they did not do it, the whole law remained inoperative.

The convention did not intend that articles 191 and 192 should become instantly operative as to the City of New Orleans, as it emphatically provided by article 268 that the municipal election should not take place in December, 1879, but in 1880, on such day as the Legislature would appoint. The convention intended that those articles should control and affect, not the laws in force at the adoption of the Constitution, relative to municipal elections in New Orleans, but only such legislation which by article 254 it directed the General Assembly to enact and the municipal elections to be provided for by that body under the direction of article 259.

It was necessary that the Legislature should by statute have altered the laws in existence to change the day fixed for municipal elections in New Orleans. As the Legislature was not in any manner disturbed by those laws they remained unimpaired and were in full force and vigor when the election was held on the Tuesday after the first Monday in November.

Constitutions, like statutes, are to be construed by the same rules of interpretation.

Sedgwick on Constr. 19, 95, 161; Cooley, Const. Lim. 63 ; 10 Ohio N. S. 588 ; 3 Ind. 251; 21 N. Y. 12 ; Wade on Retroact. 1. 8, 289, 290, 325, 326 ; R. C. C. 1723, 1946 ; D. 1. L. 3 T. 1. 26, 28 ; 10 M. 172, 560 ; 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 A. 54 ; 2 A. 919 ; 3 A. 398 ; 5 A. 121, 395 ; 6 A. 605 ; 12 A. 805, 498.

The clear intention of the convention was that the charter of the city should be canceled or remodeled ; that its affairs should be liquidated and settled; that the government in esse should cease ; that a new city government should be organized and, under all and any circumstances, that there should be a municipal election in New Orleans in 1880, and that the officers to be entrusted with the administration of corporate affairs should be then elected for the purposes of such new government and should thereupon enter into office. It was not before then that these articles were to be operative. Until the happening of those events, those articles were to be and, owing to the non-occurrence of the same, they have remained and have continued to be dormant up to the present time.

It hence follows, that inasmuch as the law fixing the first Tuesday after the first Monday in November, as the day for a municipal election in New Orleans, was unimpaired on the second of November, 1880, which was that day, the election then held, took place on the day appointed by law, and is, therefore, legal and valid.

Furthermore: It cannot for an instant be supposed that the framers of the Constitution knew not that there were laws in force while they were deliberating on the spirit and substance, on the letter and ■ form of the organic law, and that those laws were and would continue to be consistent or inconsistent with the result of their labors; that they intended to override or nullify all of them instantly and to provide for a new system of legislation which was to be immediately self-operative upon the adoption of the Constitution, regardless of the state of things in existence or of consequences.

It is glaringly potent that their intention was to the very reverse, for they distinctly provided by articles 253 and 259 that all laws, whether consistent or inconsistent, would continue in force, the former indefinitely, until changed ; the latter, as if the Constitution had not been adopted, but only until the organization of the new government, which the Constitution proposed to establish, and the induction into office of the new officers to be appointed or elected under that government and no longer.

It is to be remarked, that in article 259 the word State is not prefixed to the words, “ government” and “officers,” which appear to have been used in their broadest and' most comprehensive sense, and the ■inference is that the article in that respect was intended to bring within its fold as well the State government, offices and officers, as the parochial and municipal governments, offices and officers, the officers being considered of, because in, the State, and that all restrictive sense was intentionally avoided. This conclusion is the more apparent, when it is considered that the convention intended to provide, and did actu.ally provide, by the Constitution, for the organization of such new government, not only for State but also for parochial and municipal purposes whenever needed and practicable.

The law fixing the first Tuesday after the first Monday of November as the day on which municipal elections were to be held biennially, from November, 1870, in the city of New Orleans, whether consistent or inconsistent with the Constitution, was, therefore, in force on January ’1st, 1880. If it was consistent, there can be no dispute that it continued in existence. If it was inconsistent, it also remained in force, ' because the two events which, under article 259, would have ended its ■life had not arrived :

1st. The city government which the convention expected the General Assembly to organize, in furtherance of the mandate contained in •article 268, was not provided for by legislation ; and

2d. The new officers to be elected for the purposes of such new ..government were not, and could not, have been elected and inducted into office.

If it be true that articles 191 and 192 were intended, under all con-itingencies, to become at once operative, then the law in existence on the 1st of January, 1880, fixing a day for the municipal elections in New •Orleans different from that named in article 191, was abrogated the moment the Constitution went into operation; then, in the absence of the legislation directed by article 253, the following article 254, which .gives to the citizens of New Orleans the right of choosing their officers, has become a dead letter ; then article 268, which provides for a municipal election in that city, is nullified ; then the city charter, with all its defects and enormities, is fastened upon the corporation and its inhabitants without the hope of forthcoming remedy ; then, whether the incumbents hold over, or, owing to the expiration of their terms, be replaced by the executive, under article 69, the exorbitant salary attaching to the offices which they claim, continue to be paid, at least until 1884 ; then the Legislature is shackled, is powerless to afford any provisional or immediate relief by a change of municipal officers ; then the Executive by proclamation, the citizens by their vote, on November 2d, 1880, have taken that to be a law, which was a lifeless form, which was a fleeting shadow ; then constitutional requirements -are baffled. Such surely was not the intent or meaning of the convention. Before the recognition of such a policy in the Constitution, the judicial mind must recede.

It is manifest that, whether the law in question was consistent or inconsistent with the Constitution it was altered or abrogated neither by the Constitution at its adoption nor by any subsequent legislation ; that it was the law in force, fixing as the day for a municipal election in New Orleans the 2d of November, 1880, on which the election assailed took place, and that said election having been held on the day appointed by law, was legally held, and is therefore unquestionably valid and effective.

The law does not favor repeals by implication. So that it is not correct to say that the convention intended to make articles 191 and 192 at once operative, and that they actually so became.

To sanction the theories advanced by the defense in this case, would be to tear away and absolutely expunge from the Constitution and completely destroy some of its most wholesome and vital provisions, which should be respected and enforced, and incorporate in their place anti-republican, un-American, unjust, oppressive and odious clauses which were avowedly excluded from it; would be to vivify that which was lifeless, to deaden that which was quick in being; would be to transgress and violate every canon of interpretation, to stultify the wise delegates of the people in convention assembled, to arrogate to ourselves the power and might of judicial legislation by substituting irrational utopias to the solemn behests of the convention — consequences before which we stand aghast, and which, in duty bound, we absolutely decline to solemnize and consecrate.

. Construing, as we do, the Constitution of 1879, we make all its provisions under consideration appear rational, logical, concordant, efficacious and conducive to the judicial fulfillment of the important objects which its framers had in contemplation, and we leave the General Assembly unfettered and free under the organic law to legislate whenever, wherever and however they may deem advisable and proper — rspecially in furtherance of the directions of the Constitution to which we have alluded, and particularly as regards the holding of a municipal election in New Orleans, although the year 1880, within which the same was expected to be ordered and held, will have elapsed when they convene again.

In consequence of the views which we hold and announce, the municipal officers elected on the 2d of November last, are enabled at once to enter upon the execution of their mandate ; a new administration is inaugurated and laws heretofore in existence continue in force until repealed or amended by the Legislature.

The judgment of the lower court was in favor of the relators. It has made a sound exposition and application of the law, and so has done justice.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court, in the above consolidated cases, be affirmed at the costs of the appellants in both courts.


source: Caselaw Access Project

author: Fenner, J. Fenner, J.

license: Public Domain

text:
    No. 7674.
    State ex rel. T. W. Collens vs. E. A. Burke, Treasurer, et al.
    ■Warrants for the salaries of constitutional officers, 'when the amount of such salaries iff fixed by the Constitution, are entitled to he paid out of the general fund of the State by preference and priority over all other warrants drawn against such fund.
    These constitutionally preferred creditors stand and must be maintained on a basis of perfect equality.
    But, under the provisions of the Ordinance of the late Convention, declaring that ‘‘ all moneys received in the treasury ior all taxes and licenses due the State prior to the 1st of January, 1879, etc.,” the Mandamus must be disallowed and Itelator’a Petition dismissed.
    PPEAL from the Fifth District Court, parish of Orleans. Rogers, J.
    E. Howard MeCaleb for the Relator and Appellee.
    J. 0. Egan, Attorney General, for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The relator was a constitutional officer, viz: a District Judge, -created by the Constitution of 1868, and whose salary is fixed by said Constitution at not less than five thousand dollars. The Legislature having fixed the salary of the office at exactly the lowest limit prescribed by the Constitution, the case is, in every respect, for present purposes, the same as if that salary had been fixed at that precise amount.

His petition represents that he is holder of warrants issued by the State Auditor for Ms salary for the years 1874,1875 and 1876, and payable out of the revenues of said years respectively; that he has presented said warrants to the State Treasurer, and has repeatedly demanded payment of the whole or a part thereof out of the revenues of the State for said years respectively, collected since their date; and that the treasurer has failed and refused to pay any part of the same, without lawful excuse and in violation of his ministerial duty; and prayed for a mandamus ordering him to pay said warrants out of said revenues.

The Treasurer failed to file any answer upon the rule nisi, but the ease went to trial and evidence was taken, and the Treasurer himself appeared as a witness.

The material facts appearing from the testimony, are:

1st. That there was on hand in the General Fund of the State for the year 1874 $978 68; for the year 1875, $1701 78; for the year 1876, $2817 84.

2d. That there were outstanding warrants upon the General Fund of 1874 to the total amount of $37,253 03, of which warrants $13,406 were in favor of constitutional officers, and $23,847 03 for other miscellaneous expenses of the State.

Upon the general fund of 1875, to the total amount of $14,198 61, of which $9899 55 in favor oE constitutional officers and $4299 06 for other expenses.

Upon the general fund of 1876 to the total amount of $63,555 66, of which $28,937 55 in favor of constitutional officers, and $34,618 11 for other expenses.

3d. That the appropriations for the said several years would probably exceed the revenues thereof.

The case, as to its substantial facts, is similar to that of State ex rel. Boyer, 32 A. 177. There, as here, the mandamus was claimed upon the ground that the relator’s warrants, being for the salaries of consti' tutional officers, they were payable, by preference, out of the general fund in the treasury. The Court declined to pass upon the question on the ground that, even conceding it to be correct, yet the evidence showed that there were outstanding a large amount of constitutional warrants of like dignity with those of relator, far exceeding in amount the funds on hand, and that to issue a mandamus directing the treasurer to pay those held by him would,” in the words of the Court, entitle the relator to take the whole sum for his warrants when other warrants of equal dignity were awaiting payment.”

The reasoning is entirely satisfactory to our minds so far as it precludes the possibility of issuing a mandamus directing the Treasurer absolutely to pay relator’s warrants without regard to the rights of other holders of like warrants. But we cannot assent to the conclusion under which any relief whatever was denied to relator. ■

In that case, as in this, there were funds in the Treasurer’s hands, and out of those funds the relator had the right to receive some payment ; the corresponding duty rested on the Treasurer to make such payment; that duty, ascertained from the law, was a ministerial duty ; the Treasurer had failed and refused to make any payment, thereby violating his said duty. We consider this a proper ease for mandamus ; and although we may not grant the whole relief asked, we must determine what was, if any, the right of relator, what was the corresponding duty of the Treasurer, and we must issue mandamus directing the performance of such duty.

Under these views, we feel constrained to examine this case upon its merits to ascertain the rights and duties of the parties under the pleadings and the evidence, and to award the relator such relief, appropriate under the allegations and prayer of his petition, as we shall find him entitled to.

Eor this purpose it is absolutely necessary that we should settle the relative rights of holders of different classes of warrants all drawn upon, and payable out of, the general fund.

After much consideration, we have reached the conclusion that warrants for the salaries of constitutional officers, when the amounts of such salaries is fixed by the Constitution, are entitled to be paid out of the general fund of the State by preference and priority over all other warrants against such fund.

It does not seem difficult to demonstrate this proposition, upon admitted principles, and with such conclusiveness as cannot admit of question.

It cannot be denied that the mandatory provisions of the Constitution, when not in conflict with the' Constitution of the United States, must have effect and must be obeyed and enforced by all functionaries of the government, and cannot be defeated, directly or indirectly, by any action of any department of such government.

The Constitution of 1868, article 83, expressly provided that there should be seven District Courts for the Parish of Orleans, and one judge for each of them. Article 84 further unequivocally commanded that “ each of said judges shall receive a salary, * * * which shall never be less than five thousand dollars.”

If the relator, who was a judge of one of said courts under said Constitution, shall not receive his salary,' it is manifest that the Constitution will be directly violated.

It has been expressly decided that the Legislature of the State was incompetent to abolish the court over which relator presided, and an act of the Legislature, actually passed for that purpose, was declared by this Court to be null and void.

It is very clear that if the Legislature had passed an act reducing his salary below five thousand dollars or providing that he should not receive a salary to that amount, it would have been equally null and void.

Any law or laws, or any construction of any law or laws, or any execution of any law or laws, the effect of which would be, directly or indirectly, to prevent relator from receiving his aforesaid salary, would be, in like manner, and to the extent named, unequivocally violative of the Constitution ; and it would be the duty of the courts to refuse to give such effect to any law and to prevent and restrain such construction or execution.

The 'Constitution of 1868, as amended, also defined and limited the legislative power of taxation ; and during the several years for which the salary of relator is herein claimed, the Legislature exhausted its power of taxation. If relator should not be paid out of the revenues derived from such tax, he could not be paid at all, because no additional tax for said years could be levied and no additional revenue obtained. If it were true that the Legislature, after exhausting its power of taxation and raising the whole revenue possible, could proceed to make appropriations, for such purposes as it might choose, to an amount three times as great as said possible revenue, and could then require said revenue to be distributed pro rata among the holders of all warrants issued under such appropriations including constitutional salaries of constitutional officers, it is manifest that this would operate the practical reduction of such salaries to one-third of the amount fixed by the Constitution. We could not recognize the existence of such power without permitting the annulment of the Constitution and emancipating the Legislature from constitutional subjection.

The Constitution undoubtedly intended and required that the salaries fixed by itself for the officers created by itself should be paid, in any and all events, out of the revenues which it authorized the State to raise by taxation.

A iarge discretion rests in the Legislature as to the purposes to which it may, in its wisdom, appropriate these revenues ; but that discretion, like every other power, is subject to the control of the Constitution, and must only be exercised without prejudice to rights guaranteed by that highest authority.

It follows that the power of the Legislature, in directing the disposition of the revenues of the State, is confined and limited to the excess of such revenues over and above the amounts required to pay the sums specifically ordered to be paid by the Constitution itself.

These propositions are so conformable to reason that it is not deemed necessary to further enforce them by the application of other equally settled principles affecting the independence of the several departments of the government, which would be seriously threatened under any different view of legislative power.

From the views thus laid down it results that the relator herein is entitled to have the warrants presented by him paid out of the general funds, shown to lie in the Treasurer’s hands, by preference and priority over all other warrants, except warrants of those constitutional officers whose salaries are fixed by the Constitution, and who, therefore, have equal rights with relator.

These constitutionally preferred creditors stand, and must be maintained, on a basis of perfect equality. We cannot recognize the right of the Treasurer to enforce any system under which one of them may claim preference over another by reason of any priority of registry or of presentation of his warrants for payment. No law authorizes such preferences, and no officer has the right to create them.

It is the absolute, ministerial duty of the Treasurer to distibute the money to the credit of the general fund for the years referred to, pro rata amongst the holders of all outstanding warrants for salaries of constitutional officers whose salaries were fixed in the Constitution of 1868, and to pay forthwith to relator his share of said funds as ascertained under said distribution. Relator is entitled to a mandamus to this effect.

We have not been unmindful of the delicacy of our position in deciding questions of this character ; but we have been able to discover no ground upon which we could justify a refusal to adjudicate upon the right of relator herein, especially as they arise exclusively under the Constitution of 1868.

In the Boyer case, our honored immediate predecessors announced that they would deeide these questions when properly presented ; and we also follow a precedent set by the esteemed court organized under the Constitution of 1852 in the case of State vs. Lea, 14 An.

For the reasons herein given, it is ordered that the judgment of the lower court, making peremptory the mandamus as prayed for in the petition, be now amended so as to order and command E. A. Burke, State Treasurer, to distribute pro rata the funds in the treasury standing to the credit of the general fund for the years 1874,1875 and 1876, exclusively amongst the holders of outstanding warrants for the salaries of said several years respectively of constitutional officers whose salaries were fixed in the Constitution of 1868, to the extent necessary to satisfy the same, and immediately to ascertain and pay to relator the share coming to him under such distribution; and that, as thus amended, the judgment appealed from be affirmed, defendant to pay the costs of the lower court and relator to pay the costs of this appeal.

On Abplioaiton fob a Beheabing.

Fenner, J.

This Court is not, in any degree, responsible for the necessity which it is under of reconsidering the original decree herein rendered. The case was decided, and correctly decided, upon the issues presented in the pleadings and arguments of counsel.

In an application for rehearing, the Attorney General has, for the first time, called our attention to the provision' of an ordinance of the late Constitutional Convention, declaring that “all moneys received in the treasury for all taxes and licenses due the State prior to the 1st of January, 1879, except such as are otherwise provided for by this ordinance, shall be set aside to pay the interest on said five-dollar bonds and to provide a sinking fund to redeem the same.”

The funds involved in the present controversy are “ moneys received in the treasury for taxes and licenses due the State prior to the first day of January, 1879,” and are not “ otherwise provided for ” in said ordinance.

They, therefore, are subject to the provisions of the ordinance. However hard may be the case of relator in having his vested rights in those funds thus destroyed, the sovereign authority of the State has so decreed and he must submit.

State ex rel. Folsom vs. Mayor, 32 A. 709. Argument having been heard upon this application for rehearing, it is not necessary that a rehearing should be granted before disposing of the case.

It is, therefore, ordered that our former decree herein be annulled and set aside; and it is now ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, that the mandamus be disallowed and relator’s petition dismissed at his costs in both courts.


author: Fenner, J.

text:
    No. 7913.
    Succession of Jno. A. Turnell—On Petition to Annul Clause in Will.
    The testator cannot impose charges or conditions on the legitimate portion of the forced heir, and, therefore, cannot order that that portion shall, together with the rest of his estate, remain undivided in the hands of his executors, during a certain number of years.
    j^PPEAL from the Second District Court, parish of Orleans. Tissot, J.
    Bobert Mott for the Executors and Appellees.
    First — Proof is admissible to show the improper character of the tutor oí the minors as a reason for the testator keeping the possession of the property from his control.
    Second — The testator has a right to have the whole of his property retained in the hands of his executors, provided the revenues are delivered to his minor heirs.
    Third — The same law which confers the légitime on the heirs, provides that the testator can keep the control of the property from the possession of the tutor of the minors.
    Spencer & White and J. Timony for Appellants.
    First — Where the testator has disposed of the disposable portion, the reserve passes to the forced heir áb intestato. Levasseur, Portion Disponible, No. 3-7, inclusive; Demolombe, v. 19, No. 6-25, especially No. 8, p. 8, No. 15, p. 14, and p. 24; Merlin, Question Verba Légitime, p. 19 ; Laurent, vol. 12, pp. 11-14.
    Second — The testator cannot encumber the legitimate portion with charges. Code, De Inoffiáoso Testamento, b. 3, tit. 28, chap. 32; Laurent, vol. 12, pp. 197,198; Demolombe, vol. 19, pp. 423, 424.
   The opinion of the Court was delivered by

Fenner, J.

The decedent left, as forced heirs, two sets of grandchildren, who may be designated as the Blakeley children and the Hutchison children.

Each set of children were, under the law, entitled, as a légitime or forced portion, to one-fourth of his estate. He left a testament, by the terms of which, with the expressed intention of complying with the requirements of the law, he bequeaths to the Hutchison children exactly one-fourth of his estate, and gave the balance thereof to the Blakeley children. He then directs as follows:

“All of my property shall be kept together, and be administered by my executors for five years after my death, when the same shall be sold, and the proceeds thereof be invested by my executors in U. S. bonds, and as my grandchildren severally arrive at the age of twenty-one years, they shall receive their share. Until the property be divided-in the above proportions among my said grandchildren, the revenues therefrom shall be paid to them half yearly.”

The natural tutor of the Hutchison children, who are minors, presents this petition in their behalf, averring, substantially, that they are the forced heirs of the decedent for the one-fourth part of his whole estate, that the decedent could encumber the said légitime with no conditions, that the clauses above quoted from the will are null and void, and praying that they be so declared.

Treating this will, as it has been treated by counsel on both sides in their arguments, as a will conferring upon the petitioning minors no right or advantage whatever over and above their legitimate portion, and considering their present action as a waiver of all other rights and advantages which might, under any possible construction of the will, .accrue to them thereunder, we find no difficulty in reaching the conclusion that their demand herein is well founded, and that the conditions imposed in the clauses of the will, so far as they affect the légitime of •the petitioners, are, and should be, declared null and void.

It is true the petitioner declares that “ he waives no right, and makes no admission as to the validity or legality of any of the other dispositions of said last will and testament,” but we regard this as a reservation of the right to contest the validity of such other clauses, and not to claim thereunder advantages additional to the legitime.

We think it clear, on both reason and authority, that where the will bequeaths to the forced heir more than his legitimate portion, the testator may attach to the bequest any lawful conditions, and in such case the forced heir must exercise the option of either accepting the bequest .as a whole, with the conditions' attached, or of renouncing all testamentary-advantage, and claiming his légitime only as secured to him by the law independent of the testament.

See 12 Laurent; 19 Demolombe, No. 430 et seq.

Such we consider to be the doctrine of the Macias case, 31 A.

But where the testator bequeaths to the forced heir nothing beyond his legitime, the only testamentary function he can exercise in reference thereto is that of designating the distinct part of his estate which shall be assigned to the heir in settlement of his légitime, which part so assigned must be accepted by the heir, reserving his right, in case of its deficiency in value to satisfy his claim, to have the deficiency made up out of the estate. This right of designation, which has been exercised in this case, results from general principles, and is expressly recognized in. our Code. Rev. C. C. 1302.

In the learned discussions submitted orally and on briefs by counsel, neither side has referred to article 1710 of the Rev. Civil Code, which expressly declares “that no charge's or conditions can be imposed by the testator on the legitimate portion of forced heirs.” This provision was not included in the Code Napoleon, but the commentators on that Code, and the courts of France, upon considerations arising out of the motives, origin and history of the law upon the subject of the légi-time, had conclusively established and adopted the same doctrine, and had recognized the right of the forced heir as one arising ab intestato, and insusceptible of being controlled, limited or qualified by any disposition of the testator.

12 Laurent, pp. 11-14; 148,197.

19 Demolombe, Nos. 6-25, 429.

8 Laporte Rand. Francaises, p. 336.

Construing Art. 1710 with Art. 1301 of the Rev. Civil Code, it is easy to see that the latter, authorizing the ascendant by his will to delay the partition among his minor children or grandchildren inheriting from him, applies only to cases where they inherit by virtue of his will, where they are the subjects of his voluntary beneficence, and where, therefore, in conferring the benefit he may attach the condition; but not to a case like the present, where he has only exercised his will-making power for the purpose of depriving them of every interest in his estate of which he could deprive them. Whence does he derive the privilege of imposing conditions upon rights absolute under the law and created by the law even in defiance of his will ?

Upon the argument of counsel for the executors, it might, with equal force, be contended that under article 1300 the testator could impose a like condition of indivisión upon the legitimate portion even of a major heir for the term of five years.

The executors set up as special ground for the maintenance of the conditions that it is in the interest of the minors, on account of the unfitness of their natural tutor, to be entrusted with their property.

Such questions cannot be considered here, but must be urged in proceedings for removal or destitution of the tutor.

Clague vs. Clague, 13 La. 6.

The decisions'in the succession of Macias, 31 A. 127, and MeOalop vs. Stewart, 11 A. 106, only applied Art. 1301 of the Code to a case properly falling under its provisions, as just interpreted by us, and they are of no force as authority here.

The minors, represented by the plaintiff tutor, are entitled to their legitime, not by virtue of the will, but by virtue of the law, and take it free from conditions imposed by the will.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be reversed, and proceeding to render such judgment as should have been rendered by the lower court, it is now ordered, adjudged and decreed that the clauses in the will of John A. Turnell, referred to and-quoted in the petition herein filed, he declared null and void, so far as they affect the legitimate portion of the minors represented by Thos. W. Hutchison, natural tutor, and that appellees pay costs of the lower court, and of this appeal.

The Chief Justice recuses himself in this case, having been of counsel.


text:
    No. 8120.
    State of Louisiana ex rel. Wintz vs. Judge Criminal District Court for the Parish of Orleans.
    Relator, having refused to answer a question propounded to him by the grand jury, was brought to the bar of the Criminal District Court of the Parish of Orleans and there ordered by the Court to answer the question, which he stillrefused to do; whereupon he was committed for contempt.
    He applies for a writ of Certiorari and asks that this Court, in the exercise of its constitutional supervisory power, should review said proceedings and declare them null and void.

      XTeld that the writ of Certiorari is limited to cases where it appears, on the face of the record, that the proceedings complained of are absolutely null. In the case at bar, the record shows no irregularity in the proceedings, and it is not understood that any such charge is preferred against them. The application must be refused.
    Carleton Hunt and C. H. Lavillebeuvre for the Relator.
   The opinion of the Court was delivered by

Fenner, J.

The relator in this case being confined in the Parish Prison under a sentence and commitment by defendant for contempt of court, obtained from this Court a writ of certiorari, directed to defendant commanding him to send us a certified copy of his proceedings in the premises, and he prays that, in the exercise of our general supervision over the Criminal District Court, we may review the said proceedings and declare them null ánd void.

The only certified copy of proceedings brought up under the writ is a copy of the commitment, which recites simply :

“Whereas, Frederick Wintz was, by due form of law, adjudged before our Criminal District Court to be in willful and'criminal contempt of the authority of said Court, and sentenced on the 24th day of December, 1880, to suffer imprisonment in the Parish Prison for the term of five days. Now, therefore, etc.”

It appears, however, generally, from both the relator’s petition and the return of the judge, that the Grand Jury of the parish came into open Court and reported, through their foreman, that the relator, a witness duly subpoenaed and sworn before the said Grand Jury, had refused to answer a certain interrogatory to him propounded by the said grand jury; that the judge then called him to the bar of the Court, and directed him'to answer the question ; and that relator then stated to the judge in open Court that he would not answer to said interrogatory; and that, thereupon, and for his said disobedience to its order, the Court committed him for contempt of its authority.

The record, thus epitomized and stripped of adventitious circumstances, unquestionably discloses a case in which, by proceedings perfectly regular, the Court has exercised its discretionary jurisdiction to enforce its authority and to punish contempt thereof by a penalty not exceeding the bounds of its power to inflict.

It is settled that a court has authority to compel a witness to testify before a grand jury organized and acting under its direction.

2d Bishop, Cr. L. 2 273.

“ Eor a witness not to attend when subpoenaed; for a witness, when attending, to refuse to be sworn ; for a witness, when sworn, to refuse to answer,” are enumerated as among the most common instances of contempt of court.

Wharton Cr. L. § 3432 ; 2 Bishop Or. L. | 253.

These are offenses committed in the face of the Court, directly obstructive of the administration of justice, and punishable by summary commitment, without the delay incident to ordinary contradictory proceedings, upon the broad principle, that “ men, placing themselves in opposition to the machinery of the law, are necessarily borne down by it, because the machinery will move on.”

2 Bishop, Cr. L. ?¿ 241.

The proceedings, so far as the record exposes them to our view, are open to no charge of irregularity, and we do not understand that any such charge is preferred against them.

The purposes for which the writ of certiorari may be employed, are indicated by its name and are clearly pointed out in the articles of the Code of Practice.

It is a mandate simply calling upon the inferior judge to send up a certified copy of proceedings complained of. Art. 855.

No other duty or return is required of the judge except simply to send the certified copy of the record or proceedings called for. Art. 861.

The object of the writ is confined to the setting aside of “ proceedings absolutely void, as when the judge has refused to hear the party or his witnesses, or has pronounced sentence without having cited him to appear.” Art. 857.

The examples given indicate the nature of the abuses intended to be remedied by the writ. Our examination is confined to the certified record, and our power to annul is only to be exercised when it appears, on the face of the record, that “ the proceedings are null.” Art. 864.

On the other hand it is provided that “ if the Court finds that the proceedings have been regular, it shall dissolve the writ.” Art. 865.

From these provisions it is apparent that the only subject of examination ^under the writ of certiorari is the modus procedendi, the regularity of proceedings. It was never intendeded as a mode of revising the' decisions of inferior courts upon questions of law arising in the course of judicial proceedings properly submitted to them for decision which they must decide, and in the decision of which they must exercise judicial discretion. It is not disputed that the question, whether or not a witness shall answer an interrogatory addressed to him when under examination in the regular course of judicial proceedings, is one which the court has the power to, decide andjnust decide, and when, after hearing and consideration, it has decided, “the machinery of the law must move on.”' If, after every such decision, the witness ordered to answer might bring the proceedings to a halt until on a writ of certi-orari the correctness of such decision-might be reviewed and passed on by this Court, the trial of a cause or the investigations of a grand jury would never come to an end.

In the first case which presented a question arising under our supervisory jurisdiction, we took occasion to lay down some general rules by which we should be guided in its exercise, and we then said: “In the exercise of the power, we wish it distinctly understood that we shall respect the independence of inferior courts in the determination of all questions confided to their judicial discretion, and shall not usurp merely appellate jurisdiction not conferred upon us by the Constitution.”

State ex rel. City vs. Judge, 32 A.

To this rule we must adhere in the present case.

The point upon which our decision is Invoked in this application, is the question of error vel non in the decision of the court overruling the objections urged by the witness against answering the particular interrogatory addressed to him and ordering him to answer. It would be conceded that if the decision be correct and the order to answer proper, the refusal to obey was contempt and the punishment thereof lawful. The only grounds for relief are that the objections of the witness were valid, the decision overruling them erroneous, the order to answer illegal, and, therefore, the refusal to obey not punishable as a contempt.

We have not deemed it necessary to state the character of the interrogatory, nor the nature of the objections raised by the witness, nor the reasons of the judge for overruling them. It suffices to say that the objections raised a question of constitutional law, which it was the province and duty of the court to decide, which it decided after hearing and in due course of proceeding, and, as we are bound to presume, according to conscience and honest opinion. For us to review and pass upon the correctness of that decision would be “ to usurp merely appellate jurisdiction not conferred upon us by the Constitution,” and to apply the remedial writ of certiorari to purposes entirely foreign to those contemplated by the laws regulating the same.

The proceedings subjected to our inspection are regular, orderly and in conformity with all rules of procedure, and we only obey the mandate of article 865 of the Code of Practice in refusing the relief sought.

To suggestions as to the absence of other adequate remedy, we can only say thatit is not our province to provide remedies for wrongs, real or imaginary, but only to administer, according to law, remedies provided by law. All power is liable to abuse, and power conferred must be accompanied with trust. It is impossible to provide remedies against every abuse of power and still less against every error in its exercise. We are far from insinuating that there has been abuse, or even error, in the exercise of the judicial power conferred upon our learned brother of the District Court. .But even if there were, and even if relator were a sufferer thereby, and even if the law provided him no redress, his case would merely illustrate the inevitable imperfections of all human devices to secure an infallible administration of justice and flawless protection of rights.

We are thoroughty satisfied the Constitution intended that our supervisory jurisdiction should be distinct, in nature as well as in name, from our appellate jurisdiction. The former was intended simply to enable us to compel inferior courts to perform their functions, to prevent them from exceeding the bounds of their jurisdiction, and to enforce the observance of that regularity in their proceedings which is essential to fairness in the conduct of contradictory litigation.

Mere error in the decision of questions properly submitted to their determination and regularly determined, can only be corrected in the exercise of a jurisdiction purely appellate.

It is, therefore, ordered that the application in this case be refuesd.


text:
    No. 8107.
    State of Louisiana ex rel. Lucien DeBuys vs. Civil Sheriff of the Parish of Orleans.
    The power of this Court to issue writs of Habeas Corpus is confined to cases -within its appellate jurisdiction.
    Its authority, in this respect, is not extended by the terms of Article 90 of the Constitution beyond the special restriction contained in Article 89.
    The fact that the case in which the contempt of court has been committed, is appealable, does not render the proceeding for contempt appealable. Case of "Wood, 30 An., 672, affirmed.
    J. O. Nixon, Jr., and E. W. Huntington for the Relator.
   The opinion of the Court was delivered by

Fenner, J.

The relator, averring that he is illegally detained in

custody by the Civil Sheriff under a commitment issued by the Civil District Court for the parish of Orleans, and averring sundry illegalities and irregularities in the proceedings under .which said commitment was issued, applied to this Court for a writ of habeas corpus addressed to the said sheriff.

The writ was issued and made returnable this day, and in obedience thereto the sheriff produced the body of the relator in open court and made his return to the writ by exhibiting a duly certified copy of the commitment in virtue of which he had taken and held the relator in custody.

From that commitment it appears that it was issued in execution of a decree of the Civil-District Court condemning the relator to ten days imprisonment in the parish prison and to pay a fine of fifty dollars for a contempt of the authority of said court.

The first point to be determined is whether the case is within our jurisdiction.

The Constitution, article 89, expressly confines the authority of this Court to issue writs of habeas corpus to “ cases where it may have appellate jurisdiction.”

"We do not regard that authority as, in any manner, extended by the terms of article 90 providing this Court shall have control and general supervision over all inferior courts, and shall have power to issue writs of certiorari, prohibition, mandamus, quo warranto and other remedial writs.”

The concluding general phrase other remedial writs” cannot be construed to include the writ of habeas corpus,, and, thereby, to take it out of the operation of the express restriction imposed by the preceding article 89. There are other remedial writs known to our system of practice besides those named in article 90 and the writ of habeas corpus— notably the writ of distringas, which might, under conceivable circumstances, be used by this Court in enforcement of its powers.

But, in any event, the maxim “ generalia speeialibus non derogant ” would prevent the general clause in article 90 from destroying the special restriction of article 89, or from having such effect as would render the latter superfluous' and inoperative. We have, under the Constitution, three kinds of jurisdiction, viz : 1st, appellate ; 2d, supervisory ; 3d, original. Our appellate jurisdiction is regulated exclusively by article 81 of the Constitution. It is no new question, but has been repeatedly determined that our’ jurisdiction to issue writs of habeas corpus is confined to cases, within our appellate jurisdiction.

State vs. Fenderson, 28 A. 82.

In re Wood, 30 A. 672.

State ex rel. Sinnott vs. Falls, 32 A. 555.

State ex rel. Falkenstein vs. Fitzpatrick, Opinion Book No. 53, p. 44.

State ex rel. Finney vs. Judge, Id. p. 127.

In re Dandridge, Id. 279.

We fully adhere to the doctrine of these decisions, which were only rendered on due deliberation.

It only remains to determine whether the instant case is one in which we have appellate jurisdiction.

Neither the amount of the fine nor the character and term of the imprisonment, nor any “ matter in dispute ” in the proceeding, brings the ease within our appellate jurisdiction as defined by article 81.

The argument that the case of Berje vs. The City of New Orleans, in reference to which it appears the alleged contempt was committed, is appealable in its character, and that therefore the proceeding for contempt is appealable has been fully disposed of by. our predecessors in the case of Wood, 30 A. 672, where in a case precisely similar to this, the Court said : “It seems to be supposed that jurisdiction could be conferred upon us, by alleging that the sum involved in the suit of Golding vs. Wood, in which the contempt was committed, is over five hundred dollars. The contempt of court was not committed in a case. The contempt has no connection with the ease of Golding vs. Wood, except in so far as it may have been committed because of something said on that trial. * * The amount involved in that case is not a matter having any connection with this.”

We follow this case not merely as a precedent, but as one fully founded in reason and principle. It is a mere accident that the contempt alleged in this case had reference to the case of Berje vs. City, involving an appealable amount. The contempt would not have been different had it referred to an unappealable case. This is exclusively a proceeding involving the question of contempt, and resulting in a judgment imposing no appealable penalty.

The application is therefore refused at relator’s costs, and the accused is remanded to the custody of the sheriff.

Mr. Justice Poché takes no part as he was not present during the argument.


text:
    No. 8084.
    State of Louisiana vs. Willis Tessier.
    It is not necessary for conviction, under a cliarge of obtaining property under false pretenses, that the false pretenses should be the sole inducement by which the property is parted with; it is enough that they had controlling influence with the party defrauded.
    A. correction of the minutes after the Appeal is granted, so as to conform to thefaots, is legal if made contradictorily with the accused.
    APPEAL from the Eleventh Judicial District Court, parish of Natchi-toches. Pierson, J.

      D. 0. Scarborough, District Attorney, and J. 0. Egan, Attorney General, for the State, Appellee.
    First — A new trial should not be granted on the ground of newly discovered evidence, when such evidence goes to the impeachment of a witness, and not to the merits of the case. 1 Archbold, 178.
    Second — The minutes in a criminal case may b'e amended and corrected, when done contradictorily with the accused. 81 A. 387.
    Chaplin, Dranguet & Chaplin for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The defendant, convicted of obtaining property under false pretenses, presents two errors for review on this appeal.

1st. The refusal of the judge a quo to grant a new trial upon an application properly made and predicated on newly discovered evidence. The false pretenses, charged in the indictment and sustained by the verdict, were that he induced the prosecuting witness to part with his property, being three hogs, upon the following representations, all untrue, viz: that his name was Smith; that he was a photographer and in business in the city of Natchitoches; and that he had at his house fifty dollars in money, from which sum he promised to pay the prosecutor the sum of twenty dollars the next morning.

The newly discovered evidence, on which the application for new trial was based, is stated in the affidavit of E. E. Buckner, that McConnell, the prosecuting witness, had made the following statement to him, viz: “That he lived a long way in the country, that he had brought a load of hogs to town for sale, and then proceeded to give an account of the transa'ction substantially the same as that afterwards given by him on the witness-stand. When he had finished with his account of the transaction, on my expressing some surprise that he should have given up his hogs under such circumstances, he said the weather was warm and he was afraid his hogs might spoil, and added that he thought Tes-sier was a business man and-would pay him.”

Defendant contends that the effect of this newly discovered evidence would be to show that the false pretenses charged did not constitute the operative cause or principal inducement for the transfer of the property, but that such principal inducement was the fear that his hogs would spoil.

Wo do not think such effect could, in any sense, result from the evidence.

“It is not nece3s.ary that the false pretenses should be the sole inducement by which the property is parted with ; if they have controlling influence, it is enough, though other minor considerations operate upon the mind of the party.”

Wharton Cr. L., § 2121.

It must be presumed that the prosecution established, on the trial, the elements of the offense charged, including the controlling influence of the false pretenses.

Nothing in the newly discovered evidence, negatives, or is inconsistent with, such controlling influence.

The fear that the hogs would spoil may have been a motive for an anxiety to sell; but it does not follow that such motive would have had any, much less, controlling influence in inducing him to sell to Tessier, but for the false representations.

We think the new trial was properly refused.

2d. A bill of exceptions appears in the record to the action of the judge in permitting the minutes to be corrected so as to conform to the facts after the appeal had been granted. The proceeding to correct was taken contradictorily with the accused, who urges no objection to it except as to the time of the correction. This point is settled adversely to defendant. State vs. Revels, 31 A. 387.

It is, therefore, ordered that the judgment appealed from be affirmed.

Mr. Justice Levy takes no part in this decision.


author: Levy, J.

text:
    No. 7623.
    Succession of William Wise.
    The Second District Court for the Parish of Orleans, as a Prohate Court, was without jurisdiction in the matter of the rendition of an account hy the surviving partner as liquidator of a partnership. "Walmsley and Patterson, .Executors, vs. Mendelshon and PTewman, 31 An. 152, affirmed.
    PPEAL from' the Second District Court, parish of Orleans. Tissot, J.
    Chs. Louquefor Appellant.
    The liquidation of a deceased partner’s interest was a matter cognizable before the Second District Court for the Parish of Orleans.
    J. S. & J. T. Whitaker for Appellees.
    The surviving partner has no absolute right to administer the effects of the partnership and wind up its affairs ex parte unless the succession is vacant and all the heirs are absent and not represented. He must give bond to and account for the administration to the legal representative of the succession. The Probate Court deals only with the representative of the succession, and not with the surviving partner, and has no jurisdiction except over the property actually belonging to the succession.
   The opinion of the Court was delivered by

Levy, J.

William Wise and O. H. Stewart composed the commercial partnership of Stewart & Wise, doing business in the city of New Orleans. Wise died in August, 1878, having, by his last will, constituted Mrs. Florence Johnson his universal legatee. Stewart, as surviving partner, applied to the Second District Court for the parish of Orleans to be appointed liquidator of the late partnership and was so appointed.

The liquidator proceeded under this appointment and filed in said Court his account of administration of the partnership affairs. Mrs. Florence Johnson, the dative testamentary executrix of W. Wise, deceased, and universal legatee under his will, opposed said account, and before acting upon the opposition, the Judge of the Second District Court, exproprio motu, dismissed the proceedings involving the application for homologation of the account and the opposition thereto, on the ground of want of jurisdiction in his said Court. The liquidator, Stewart, has appealed from this judgment.

The question submitted for our decision is merely as to the jurisdiction of the Second District Court and the right of that Court to appoint the surviving partner of a commercial firm liquidator of the partnership.

We are not called upon to pass oh the regularity of the appointment, the compliance or non-compliance with the requirements of law on the subject of such appointment, but our inquiries are confined solely to the consideration of this question-of jurisdiction.

It is admitted in the briefs of both parties to this appeal, that the judgment of dismissal was rendered on the authority of the case of Walms-by & Patterson, Executors, vs. Mendelsohn and Newman, 31 An. 152.

In that case the Court held that the Probate Court was without jurisdiction in the matter of the rendition of an account by the surviving partner as liquidator of a partnership, and said : “The whole proceeding in the Probate Court seems to us to have been wrong. We do not mean to say that, to the extent of the bond, the surviving partner and his surety are not accountable to the executors for the part and portion coming to the succession on the settlement of the partnership ; but the Probate Court was without jurisdiction to receive the account, or to amend it, or to homologate it, or to render judgment on it.”

If this were a new question the argument contained in the brief of appellant’s counsel might have great weight; but the decision just referred to is supported by that in. the case of Boutté et al. vs. Boutté’s Executors, and in Buddecke vs. Buddeeke et al., 31 A. 572, and we are, therefore, not disposed to run counter thereto.

It is true, as stated by appellant, that the question of the jurisdiction of the Second District Court is of no practical importance now, as that Court has been merged with the Civil District Court of the parish of Orleans under the Constitution of 1879 ; and appellant may have the right to assert his claims to liquidate the partnership affairs in that tribunal.

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


text:
    No. 7959.
    Samuel H. Kennedy vs. New Orleans Savings Institution, J. H. Oglesby and A. Baldwin, Receivers.
    Plaintiff sequestered his own mortgage notes held by Defendants. The latter obtained the-removal of the suit to the TJ. S. Circuit Court. That tribunal ordered the case to be remanded to the State court and the notes returned to Defendants. The latter then instituted executory process on the notes. "Whereupon Plaintiff in sequestration suit obtained an order of court, upon a Pule to show cause, that the notes be returned to the sheriff, and in the meantime, the writ of seizure and sale should not be proceeded with, further.

      JSéldr that the latter order is only interlocutory and not susceptible of causing irreparable injury, and that the Appeal therefrom must be dismissed.
    APPEAL from the Fifth District Court, parish of Orleans. Rogers, J.
    Horace E. Upton for Plaintiff and Appellee.
    Robert Mott and Hudson & Eearn for Defendants and Appellants.
    Where the order of the lower court involves the final disposition of a legal proceeding, it works an irreparable injury, and an appeal lies.
    Where the interlocutory order puts the appellant in a condition from which he cannot be relieved by the final decree, he is entitled to an appeal.
    Where the interlocutory order has the effect of restraining a writ of seizure and sale in another suit, and defeats the seizure and sale, it is an irreparable injury, and the final judgment cannot place the plaintiff in the seizure and sale where he was when restrained.
    Any order rendered in one suit, which stops or controls another suit, has the effect of a final judgment, and inflicts an irreparable injury which can be relieved by an appeal.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Fenner, J.

Plaintiff in this case, alleging that he had made valid tender and consignment in payment of four certain negotiable mortgage notes made by himself and held by the defendant, and that notwithstanding the said tender the defendant refused to accept the same and withheld and refused to deliver to him said notes, upon appropriate allegations, brought suit to compel the delivery of the same, and also, on affidavit and bond as required by law, obtained a writ of sequestration, under which the civil sheriff seized and took into his possession the said mortgage notes.

Oglesby and Baldwin having been appointed receivers of the defendant corporation by the Circuit Court of the United States, made application for removal of this cause to said last named court.

The writ of sequestration remaining in force, and a motion of the receivers to set the same aside having been denied, the Fifth District Court, upon the application to remove, entered judgment “that this cause, as it now stands upon the docket of this Court, be certified and removed to the United States Circuit Court, and that the sheriff of this Court await the orders and decrees of that tribunal in the premises.”

The cause was accordingly certified and removed; and, by agreement of parties, the civil sheriff delivered the sequestered notes to F. A. Woolfiey, clerk and register of the U. S. Circuit Court, who receipted for them and, according to the agreement, was “ to hold the same subject to the order of the said court, after full notice to the opposing party.”

After the record had been filed in the Circuit Court, the plaintiff filed a plea to the jurisdiction of said court, upon which said court entered judgment sustaining said plea and ordering that “the cause be remanded to the Fifth District Court for the parish of Orleans,” and, at the same time, it made further order directing that “ the mortgage notes deposited with the clerk of this court be by him delivered to J. H. Oglesby and A. Baldwin, Receivers herein, to be by them proceeded with in any court having jurisdiction.”

Delivery was made accordingly, and the Receivers, Oglesby and Baldwin, thereupon instituted executory proceedings against defendant and his mortgaged property, by an independent suit in the Fifth District Court.

The plaintiff, Kennedy, then took a rule upon said Receivers, who were the legal representatives of the original defendant in the suit and had actually appeared as such therein, setting forth substantially the foregoing facts, and further averring that, at the time this caus.e was removed to the Circhit Court, the notes were in possession of the civil sheriff under the sequestration of the Court, which was in full force and effect — that the effect of the judgment of the Circuit Court declining ju-t ■ risdiction and remanding the cause to the Fifth District Court was necessarily to return the cause in the same condition as when remo'ved, Including the restoration of the sequestered notes to the custody of the sheriff under the sequestration and subject to the orders of that Court — and ordering the said receivers to show cause why they should not deliver the said sequestered notes to the civil sheriff. The court, in granting the rule to show cause, made further order that “ in the meantime they be restrained from proceeding further with the writ of seizure and sale.”

On this rule, after due hearing, judgment was rendered making the rule absolute and ordering defendants in rule to deliver the notes to the sheriff; from which judgment this appeal is taken.

The motion to dismiss is based on the ground that the judgment appealed from is interlocutory and cannot work an irreparable injury, and is, therefore, unappealable.

Counsel for appellants contend that the judgment appealed from is two-fold, (1st) ordering the delivery of the notes to the sheriff; (2d) restraining the plaintiff in the suit for seizure and sale from proceeding in that suit, thereby granting an injunction restraining an order of seizure and sale, without affidavit, bond or appearance in the suit.

So far as the second element above stated is concerned, the record shows that it does not fall within the terms or effect of the judgment. Under the rule, the receivers were only ordered to show cause why the notes should not be delivered to the sheriff. The restraining order was absolute, and only operative “in the meantime,” that is; during the pendency of the rule. That order expired, by its own limitation, when the rule was decided, and was not included at all in the judgment, as appears fully from its terms.

The only effect of the judgment appealed from is simply to order property expressly directed by the Court to be sequestered and actually sequestered, to be delivered to the civil sheriff.

It is not disputed that this is an interlocutory judgment. It is not disputed that the test of the appealable character of such judgment is whether or not it may cause an irreparable inj ury.

' We find it impossible to discover any irreparable injury which can accrue to appellants from the execution of this judgment.

The present order or judgment operates only on parties to the suit, and is merely ancillary to the original sequestration proceedings which were instituted long prior to the suit for seizure and sale brought by appellants. We cannot perceive how, by bringing this last named action, they can prevent the execution or maintenance of a sequestration taken out and operative prior thereto.

They are in no different case from that in which they were when these notes were originally sequestered, and if they could not appeal from that order they cannot appeal from this, which merely maintains the effect of the first. Neither was appealable.

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