source: Caselaw Access Project

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

license: Public Domain

text:
    No. 8102.
    B. Saloy et al. vs. City of New Orleans.
    The City of New Orleans cannot be compelled to accept ten mills in full payment of the city taxes of 1880, under the limitation fixed by Article 209 of the Constitution of 1879.
    The power of taxation possessed by said City is not confined to that granted by that Constitution.
    Her power of taxation required to meet her antecedent contract obligations, is not derived from, or controlled by, the State Constitution. It was derived from valid legislative authority existing at the time of such contracts, which formed part of them, and, therefore, rights acquired under them are protected by the Constitution of the United States, independently of the will of the State.
    It was not the intention of the Constitution of 1879' to deprive the City of the right to apply such portion of the ten mills to the support of the city government as might be necessary, and thereby throw her into a state of anarchy.
    The Decision in Shields vs. Pipes, 31 An. 765, a parallel case, commented upon and affirmed.
    The Constitution, laws and treaties of the United States are as much part of the laws of every State as its own local laws and Constitution, and the duty of this Court is to administer all the laws of the land, those of the United States as well as those of the State of Louisiana.
    There exists a wholesome comity between the highest Federal tribunal and the highest Courts of the several States, under which the former accepts as binding upon it the construction placed by the latter upon their own Constitutions and statutes; and it is justly due that the latter should pay equal regard to the adjudications of the former.
    In all questions involving the meaning and effect of the Federal Constitution, the Supreme Court of the United States is the final arbiter, whose Decisions this Court must accept as the highest authority.
    The Supreme Court of the United States, in* the recent case oí Meriweather, Deceiver of Memphis, vs. Garrett et al., has not reversed or modified the principles previously recognized in repeated Decisions, that where a statute authorized a municipal corporation to issue bonds and to exercise the power of taxation to pay them, and persons bought said bonds, this power of taxation is part of the contract and cannot be withdrawn until the bonds are paid. This Decision in the Memphis case closely examined.
    Condemnation of the theory, that taxes levied under the Mandamus of a Court constitute judicial taxation.
    An Exception to the right of Defendant to reconvene, should be urged in limine.

    A party cannot take the chances of a decision in his favor on a voluntary submission of the merits of the cause, and then escape the effect of an adverse judgment upon such a plea.
    APPEAL from the Civil District Court, parish of Orleans. Tissot, J.

      B. H. Marr for Plaintiffs and Appellees.
    First — Bv former laws municipal taxes, of the City of New Orleans, were “ due and payable ” from and after certain fixed dates: theywere “exigible” only from and after certain fixed, subsequent dates. Act of 1870, Ex. Sess., Ho. 7, p. 39, sections 18, 21; Act of 1871, Ho. 48, p. 147, section 9; Act of 1874, Ho. 41, p. 78.
    Second — Taxes due the City of New Orleans bore interest only from and after the date at which they were “ exigible,” not from the date at which they were “ due and payable.” Act of 1871, p. 147, section 9.
    Third — Act Ho. 41, of 1874, changed the date at which City taxes became “exigible.” It thereby repealed section 9, of Act Ho.‘48, of 1871, which allowed ten per cent, interest from and after the 31st July.

      Fourth — The Constitution of 1879, Articles 210, 211, 218, abrogated all laws authorizing suits for taxes ,• and made all taxes “ collectible,” that is, •* due and payable,” in the year in which they are assessed. They are “ exigible ” only from and after the expiration of the year; and they oannot hear interest from a date anterior to that at which they are made “ exigible.” Act of 1880, No. 77, sections 6, 9.
    Fifth — In a suit between the taxpayer and the City, the rights of antecedent contract obligees cannot be set up vicariously/ and they cannot be passed upon by the Court. Gilman vs. City of Sheboygan, 2 Black, 513.
    Sixth — No tax can ho levied or collected independently of the will of the State; or otherwise than under the authority of the law-making power. Meriwether vs. Garrett, the Memphis case, and authorities cited by the Court.
    Seventh — Municipal Corporations are mere creatures of the State; and the taxing power conferred on them may he abridged, or withdrawn entirely, by tbe Legislature, at its will and pleasure, at any time. Same case and authorities.
    Eighth — Taxes levied by a Municipal Corporation, under valid legislative authority, existing and in force at the date of its antecedent contract obligations, may be altered, or postponed, or released, by the Legislature, at its will and pleasure, at any time before they are ' enforced. Same case and authorities.
    Ninth — The Constitution is the highest act of law-making power in the State; and it is law throughout the State, in all the departments and subdivisions of the State.

      B. B. Forman and J. B. Fustis on the same side.

      Sami. P. Blanc, Assistant City Attorney, for Defendant and Appellant.
    j'irat — That Art. 209 is prospective in operation, and does not, therefore, affect the levy of fifteen mills, made Decern ber 23rd, 1879, for City taxes of 1880.
    Second — That it was lawful and the duty of the Council to prepare its budgets of expenditures and receipts, and to levy taxes in December, 1879, for the “ ensuing year.**
    Third — That the adoption of the budgets and levy of the taxes, December 23rd, 1879, constituted an appropriation of the latter to the items of the detailed expenses from that moment; and from the same time created and fixed an obligation on the taxpayers to pay the taxes assessed and levied for 1880.
    Fourth — That, if the ten mills limitation of Art. 209 applies to taxes of 1880, the entire amount must he given the City expenses before devoting any part thereof to the payment of anterior debt contracts.
    Fifth — That if the ten Tmlla are required for City expenses, debt contracts existing before the limitation was imposed, must he paid from a levy in excess of the ten mills, where such contracts require the levy of taxes and are protected by the Constitution of the United States.
    Sixth — That, as ten mills were requited for City expenses and five mills for the bonded and other contracts, tho entire levy of fifteen mills must be maintained.
    Seventh — That nothing in the Constitution, nor in Act No. 77, of 1880, require tho abolition of the assessment of 1879 for City taxation.
    Eighth — That Act No. 77, of 1880, does not regulate or apply to the collection of City taxes.
    Ninth — That, if the terms of Act 77 could be regarded as including the City, the act would, to that extent, be unconstitutional: 1st, because it would contain more than one object, and because that object is not set forth in tho title $ 2nd, because it would be contrary to Act 47, as a local law enacted without notice; 3rd, because it would postpone the payment of taxes and the assessment, contrary to commands of Arts. 46 and 212, and would thus impair tho obligations of contracts, contrary to the Constitution of. the United States.
   The opinion, of the Court was delivered by

Todd, J.

The plaintiffs, residents and taxpayers of the City of New Orleans, seek by this suit to compel the city, through its proper officer, to receive, in full discharge of their taxes, ten mills on the dollar of the valuation put on their property for the purposes of State taxation for, the year 1880, and to have declared illegal, null and void, the assessment by the city, in 1879, for municipal taxation for the year 1880, at the rate of fifteen mills, as violative of the Constitution of 1879, and the limitation therein declared.

The city, in its answer, asserts its right to collect the taxes levied under the assessment made in December, 1879, at the rate of fifteen mills on the dollar, and that the taxes thus levied include :

1st. The interest tax on the bonded debt of the city, under the act and ordinances known as the premium bond plan.

2d. The tax imposed for the maintenance of the schools.

3d. The tax for municipal purposes, such as police, lighting, improvements, salaries, repairs, care of insane, and generally for the support and administration of the city government.

It was further averred that the taxes were levied with reference to budgets of receipts and expenses duly prepared, under ordinances mentioned, adopted pursuant to the city charter, and amendments thereto, which ordinances were complete and in full force from and after the 23d of December, 1879. It was denied that the said assessment, and the taxes assessed, were affected by any article of the Constitution of 1879, or by any act of the Legislature passed subsequent to its adoption, relied on as supporting the pretensions of the plaintiffs. And it was averred that if any article of the State Constitution, or any legislative act, could be construed as destroying said assessment, or reducing said fifteen mill tax, it was violative of the Constitution of the United States, forbidding the passage of any law impairing the obligation of contracts.

Finally, it was alleged that, for the necessary expenses of administering the city government, a tax of at least ten mills was required, and that the balance of the tax, five mills, though insufficient for the purpose, was necessary for the support of the schools and the interest on the bonded debt.

Judgment was prayed for in reeonvention in favor of the city against each of the plaintiffs for the amount of taxes assessed against them respectively, under the assessment of 1879, with costs and interest, which several amounts are specifically set forth in the answer.

Judgment was rendered by the lower court, prohibiting the collection of a greater tax than ten mills, and annulling the assessment beyond that rate.

From this judgment the city has appealed, and the plaintiffs have asked an amendment of the judgment, declaring the entire assessment null and void.

The conclusions we have arrived at after a thorough review of the issues presented by the record, dispense us from the necessity of considering and discussing seriatim the several interesting constitutional questions involved. The main question presented is whether the city authorities can be compelled to accept ten mills in full payment of the city’s taxes for 1880.

This question is not altogether a new one. In the case of the State ex rel. Lucas E. Moore vs. City, this same tax of fifteen mills, which had then been levied by the city, was under consideration, and the issue presented in that case with reference to this tax was substantially the same now before us.

In that case as in this the limitation embraced in article 209 of the Constitution of 1879, was relied on as a bar to the levy by the city of a tax for any purpose exceeding ten mills; and we were asked, in case we should decide that the bonds sued on in that case constituted a valid contract, entitling the holders of them to the tax stipulated thereby, to restrain the city within the limit of ten mills, and to compel her to appropriate out of the ten mills so much as might be necessary to satisfy the claim of the creditor. This we refused to do. The reasons for that refusal were stated in the decision, which were in substance, that the necessary expenses of the city government should be paid out of the taxes levied; that such was the intent of the Constitution, and we declined to say what were the necessary expenses of such administration, for the reason that the determination of this question was a legislative and not a judicial function, and that neither the Constitution, apart from the ten mill limitation, nor any law of the State, had defined and fixed the measure of such expenses. And we further declared that •if we should compel the five mills to be levied by the terms of the contract for the payment of the interest on these bonds, to be taken out of the ten mills, we would then judicially limit the necessary expenses of the city to five mills. That on the same principle this or another court might direct the remaining five mills to be applied to the satisfaction of other contract obligations, and the city would thus be deprived of all means whatever for the support of its government, and the corporation thereby practically destroyed, and the inhabitants of the ¡city remitted to anarchy and chaos; results which, it is self-evident, the framers of the Constitution never contemplated, and which the very terms of the instrument show were never intended.

We, therefore, decided in the plainest terms, that we could not and would not interfere with the discretion of the municipal legislature in determining the amount required for the necessary expenses of the city government, and in appropriating thereto a sufficient amount of its revenues derived from taxation not exceeding ten mills.

We further held that the power and duty of the city to levy the tax demanded in that case were derived, not from the Constitution of 1879, but from antecedent legislative authority, validly conferred, entering into and forming part of a contract so protected by the Constitution of the United States, that it could not be revoked or impaired, but would continue to, exist independently of the State Constitution, and even had that Constitution forbidden the levying of any tax whatever to pay the debt.

With these views we maintained the levy of the tax, though in excess of the ten mills already appropriated to the support of the city government. In doing so, we recognized the perfect liberty of the city authorities to reduce the estimate of expenses and the appropriations therefor, but expressly disclaimed any authority to compel them to do so.

The record in the present case shows that the city government has not altered its budget in this respect. On the contrary, it abounds with evidence to show that no reduction could be made, and that the appropriations made are even inadequate for an efficient administration of the government.

When, therefore, the plaintiffs herein ask us to compel the city to accept ten mills in full settlement of their taxes, it is clear that they demand we should do one of two things, viz: either to remit the five mill tax ordered to be levied in the Lucas E. Moore case, and the two mill tax levied under the judgment of the Circuit Court of the United States, or to reduce the tax levied for the expenses of the city government down to three mills.

The first, it is plain, we could not do, because the judgment in the Moore case is final, and not open to recall, and the judgment of the U. S. Circuit Court is not subject to our control.

To grant the alternative demand, and confine, by the authority of our decree, the city expenses to three mills, would involve the reversal of the opinion in the Moore case upon a point in which there was no express dissent on the part of any member of this Court, that is, touching the authority of this Court to control the discretion of the City Council in relation to the amount required to defray the expenses of the city government.

With the questions determined in the case referred to, we' have nothing to do in this case, save and except with the construction of article 209 of the present Constitution of the State. No question has ever im-. pressed us with a graver sense of responsibility, growing out of the magnitude of the interests which its determination involves, and we have, therefore, welcomed the opportunity of a further consideration touching the proper effect and construction of the article in question, and after listening with profound attention to the able arguments of the learned counsel have, with great deliberation, reviewed and reconsidered the entire subject.

If the power of taxation possessed by the City of New Orleans was confined to that granted by the Constitution of 1879, the question presented would be free from difficulty. But, as already indicated, the power of taxation required to meet the antecedent contract obligations of the city is not derived from and controlled by that Constitution. It was derived from valid legislative authority existing, or created at the time of such contracts, entering into and forming part of those contracts, and incapable of being affected or destroyed by any action of the State, without violating that clause of the Federal Constitution which forbids any such State action as would impair the obligation of contracts. This constitutional inhibition is the paramount law of the land on this subject, to which the State government, in all its departments/and all subordinate authorities within the State, must conform, and against which the fundamental law of the State, declared in its Constitution, is as powerless and ineffective as the enactments of a legislature or the ordinances of a municipal corporation.

The Supreme Court of the United States, recently and correctly, declared : “ It is a fundamental principle in our system of complex national polity, that the Constitution, laws and treaties of the United States are as much part of the laws of every State as its own local laws and Constitution.” 100 U. S. 584.

Although we are the creatures of the Constitution of the State, the judicial trust confided to us embraces a faithful administration of all the laws of the land ; and our duty, as well as our solemn oaths, bind us to obey equally the Constitution of the United States and the Constitution of the State.

"We deem it useless to cite authorities to sustain these propositions. It will be conceded that such is the settled jurisprudence of the Supreme Court of the United States, which has been followed and adopted by the courts of every other State in the Union.

We have not overlooked the appeal made to us, to disregard and override the interpretation which has been placed upon the Constitution of the United States by the Supreme Court of the United States, not in a single decision, but by a long series of decisions, stretching back to the days of Chief Justice Marshall, and sanctified by the concurrence of judges representing every school of constitutional construction. To this appeal we are bound to close our ears. Between the highest Federal tribunal and the highest courts of the several States there exists a wholesome comity, under which the Federal courts accept, as binding upon them, the construction placed by the supremo tribunals of the . States -upon their own constitutions and statutes ; and, per contra, it is justly due that the State courts should pay equal regard to the adjudications of the Federal Supreme Court upon the Federal Constitution.

The States are deeply interested in the preservation of this comity, because, while the Federal Supreme Court, in the exercise of its appellate jurisdiction, can enforce its construction of the Federal Constitution and laws, even in defiance of the State courts, the latter have only the principle of voluntary comity to depend on, in order to secure the performance of the correlative duty of the Federal courts-

We, by no means, bind ourselves to a slavish adherence to Federal authority, if such should sanction flagrant usurpations repugnant to our consciences ; but we find no difficulty of this kind in our way in the matter now under consideration.

From this it appears that the City of New Orleans possesses powers of taxation derived from entirely different sources, viz.:

First. The power to levy a tax not exceeding ten mills, derived from and entirely controlled by the State Constitution of 1879.

Second. The power to levy taxes to satisfy its antecedent contract obligations, derived from valid legislative authority existing at the date of the contracts, incorporated therein, and protected and continued in force, independently of the will of the State, by the Constitution of the United States.

When, therefore, as in the Folsom case, a creditor of the city, entitled to the tax claimed under the law as it existed when his debt originated, but whose rights were not founded on a contract, and, therefore, not protected by the Constitution of the United States, appeared before us demanding a mandamus to compel the city to levy a tax in excess of ten mills, we pointed to the Constitution of 1879, and said to him: “That Constitution has destroyed your right; it had the power to destroy it, because, not being based on a contract, it was not protected by the Constitution of the United States. We can give you no relief.”

But when, as in the Moore ease, a contract creditor of the city demanded a tax guaranteed by his contract, we looked at his rights as fixed by the contract, and said: “This right is protected in its integrity by the Constitution of the United States; it exists, and must be enforced without regard to any provision of the State Constitution of 1879, and we must, therefore, grant him the relief asked.”

Whatever else may be said of these decisions, it must be admitted that, thus far, they are not inconsistent.

It is claimed, however, that as we declared in the Folsom case, that the provision of the State Constitution must have effect against all rights not protected by the Constitution of the United States, therefore it must have effect to reduce, or, if need be, destroy the right of the city to pay its necessary administration expenses out of' its tax revenue, such right not being within the protection of the Constitution of the United States.

To this we answer:

1st. The text of the decisions in both the Moore and Folsom cases shows that those dicta were applied to rights claimed against the City of New Orleans outside of and beyond the limitation imposed by the Constitution of 1879, and not to rights claimed by the city under and within those limitations.

2d. ■ If it were true that the rights of contract creditors and of the city were both controlled by the ten mills limitation of the Constitution of 1879, and were, therefore, exclusive of each other, so that they could not co-exist, it might logically follow, that the allowance out of the ten mills of a certain portion to contract creditors, would operate to reduce to that extent the amount allowed for the expenses of the city government. We have, however, shown that such is not the case. That the rights of contract creditors are not controlled by that limitation, and are not based on the Constitution of 1879, nor derived therefrom; that the allowance of the tax required to meet the demands of these creditors, does not, necessarily, come out of the ten mills authorized by the Constitution, and does not, therefore, exclude or conflict with the requirements of the city for her necessary alimony; and that even if the city should be allowed the whole ten mills for the support of her government, it would not destroy or affect the right of contract creditors to claim the additional tax necessary for the satisfaction of their debts.

3d. We held that it was not the intention of the Constitution, in any event, to deprive the city of the right to apply such portion of the ten mills to the support of the city government as might be found necessary by the municipal legislature in the exercise of the discretion confided to it. Such a proposition seems to us almost too clear for argument. It is only necessary to refer to the objects intended to be accomplished and the purposes to be carried out by a municipal corporation, to make it apparent to every one.

The object of the creation of such a corporation is solely to promote the well-being of the citizens who are subject to it. Its charter contemplates and provides for all measures that are necessary to promote this great end, such as a proper police for the establishment of public order, suppression of crime and the administration of justice, the construction and maintenance of wharves and public works for the purposes of commerce, drainage, and all other sanitary provisions to ensure the public health, the lighting of the streets and the extinguishment of fires, and all other measures conducive to the security of life and property, and promotion of the welfare and prosperity of the people. Judge Dillon has more clearly and fully defined these objects ■when he says:

“ Municipal corporations are instituted by the supreme authority of •the State for the public'good. They exercise, by delegation from the Legislature, a portion of the-sovereign power.- The main object of their creation is to act as administrative agencies for the State, and to provide for the police and local government of designated civil divisions of its territory. To this end they are invested with governmental powers and charged with civil, political and municipal duties. To enable them, beneficially, to exercise these powers and discharge their duties, they are clothed with the authority to raise revenues by taxation and in other modes, as by fines and penalties. The revenue of the public corporation is the essential means by which it is enabled to perform its appointed work. Deprived of its regular and adequate supply of revenue, such a corporation is practically destroyed and the very ends of its creation thwarted.”

Dillon, Mun. Cor., 64.

When we apply these principles to a great commercial metropolis, like the City of New Orleans, with its hundreds of thousands of inhabitants and its varied interests, how these objects rise in importance and these great and benign purposes of city charters and municipal corporations swell in magnitude! It was to subserve these great interests and purposes, and not merely to pay debts, that public corporations are established. To carry out these objects the power of taxation is essential. Without such power and the revenue it supplies the corporation dies. Unless its existence is insured and its capacities and resources kept alive, it cannot pay its debts. Thus, the first and paramount consideration, both as relates to the inhabitants of a city and its creditors, is the proper alimony for its support.

The idea that a limitation of municipal taxation could ever exclude the application of its revenues to an extent necessary to the administration of its government, is entirely unsupported by authority. Nor is it a new question in the jurisprudence of this State. This precise issue was presented and passed on in the ease of Shields vs. Pipes, 31 A. 765.

The facts of that case were substantially as follows:

Under a law of the State, passed in 1869, one Peter Young was entitled to a special tax to pay a judgment recovered by him against the parish of Concordia. Subsequently the Legislature passed Act No. 96 of 1877. The 103d section of this act provided “that no parish tax * * * shall, for any one year, for all purposes, exceed the rate of one per cent, on the assessed value ; and no judgment tax shall be levied beyond the above limit; the intent thereof being to limit parochial taxation throughout the State to a minimum of one per cent., and to repeal all general laws authorizing the levy of a special judgment tax.”

It will not be disputed that the power of the Legislature to reduce and limit the alimony of a parish or municipal corporation is as eom- ■ píete as that of a constitutional convention. It will be admitted, too, that the language of the legislative act above quoted is much stronger .and more explicit in confining all power of taxation, whether for ■parochial alimony dr for judgment taxes, within the limit of ten mills, than is the language of article 209 of the Constitution.

Notwithstanding this act, the police jury levied a tax of ten mills for parochial expenses, and levied an additional tax of more than ten mills to pay judgments.

The tax collector was proceeding to collect these taxes, when Shields, a taxpayer, alleging that the ordinance in question and proceedings of the tax collector were illegal, because violative of the statute referred to, that he had tendered to the tax collector ten mills in payment of his taxes, and that there was no authority for the tax collector to de.mand more for any purpose, prayed for an injunction to prevent the ■ tax collector from collecting any additional tax beyond the ten mills.

To this the tax collector responded:

1. That the tax of ten mills is not more than sufficient to pay the current expenses of the parish.

2. That the Act of 1869 was in force at the time the judgment was ■rendered.

3. That the Act of 1877 is unconstitutional and without effect as to the tax levied to pay the judgment.

Thus the parallel between that case and this is complete.

This Court in that case quoted the article of the-Constitution of the United States prohibiting a State from impairing the obligation of a contract, and the article of the State Constitution protecting vested ■rights, and said : “ To apply the Act of 1877 to these pre-existing judgments and the vested rights resulting from them, would be to violate the letter and spirit of these constitutional provisions;” and it therefore held, as we held in the Moore ease, with respect to contract creditors, that the judgment creditors were entitled to their tax.

But did the Court say, as we are asked to say in this case, that the judgment tax must be paid out of the ten mills to which parochial taxation was limited by the Act of 1877, and that act must have its effect, upon and against the right of the parish to provide for its current, expenses? Not so/ ' ■

Mr. Justice Marr, as the organ of an" unanimous Court, in his able and .elaborate opinion, said :

“At the time when these judgments were rendered, the only means of enforcing the judgment was that prescribed by the Act of 1869. • When the Legislature subsequently repealed all general laws authorizing the levy of a special judgment tax, and fixed the maximum of parochial taxation at ten mills, a rate which it was admitted, in this case, was not more than sufficient to pay current expenses of the parish, it either intended that this law 'should apply only to judgments rendered in future, or it attempted to deprive these judgment creditors of all remedy and to divest the rights vested in them by the judgments.”

This the Court held that it could not do, and affirmed the judgment of the lower court dissolving the injunction, thus rejecting the idea that such a construction could be placed upon the legislative limitation as to require the judgment tax. to be taken out of the ten mills, and thereby deprive the parish of all means of paying its current expenses.

This decision is sanctioned and sustained by the highest authority, and has our entire concurrence. Van Hoffman vs. City of Quincy, 4 Wall. 535; City of Muscatine vs. Batz, 8 Wall. 575.

The next and only question left for our consideration is in regard to the validity of the assessment of property for city taxes made in December, 1879. The judge a quo maintained the validity of this assessment, though deciding that only ten mills could be collected under it. We concur in his conclusions on this point, declaring the assessment legal and valid, and adopt his reasons therefor, given in his able and elaborate opinion. The same issue is before us in the case of the succession of Dupuy; and, in the opinion we shall render in that case, will take occasion to present our reasons more fully.

While mere considerations of public interest and convenience could exercise no controlling influence over our decision of purely legal questions, it is yet a matter of gratification to us to feel that in our determination of the grave questions submitted to us we shall conserve the true interests of all classes of people. We cannot conceive that it could be to the interest of any class that the City of New Orleans should be deprived of the revenues necessary to enable it to perform the functions of government, and carry out the purposes for which it was created.

Certain it is that if these functions and purposes were abandoned, every interest of society would suffer. A city without police, without lights, without a fire department, without schools, without repairs and maintenance of streets and wharves, without prisons for criminals, without places of refuge for the insane and unfortunate, without, in fine, any of those accessories of municipal organization which alone render possible the living together of vast congregations of people, would be a place not to live in, but to fly from, as if it were infected with the deadliest pestilence.

We are further consoled by the reflection, that if,; as is contended by some, the appropriations to these necessary purposes are excessive, although the remedy does not lie within our control, it might be sought at .the hands of the Legislature, which has full power to restrain municipal expenditures for alimony within such limits as, in its wisdom, may seem fit.

Entertaining these views covering the issues involved in the case, supported, as we believe them to be, by incontrovertible authority, State and Federal, we conclude that the tax of fifteen mills complained of is a legal and valid tax, and must be paid in full; and that the reconventional demand of the city, requiring the payment by the plaintiffs, respectively, of the several amounts due by them for taxes, as set forth in the answer, must be sustained.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed ; and, proceeding to render such judgment as should have been rendered by the lower court, it is ordered, adjudged and decreed that the demand of the plaintiffs to be discharged from the municipal taxes for the year 1880, assessed against them respectively, upon the payment by them of ten mills on said assessment, and to have annulled the said assessment for city taxes, made in December, 1879, be rejected; and it is further ordered, adjudged and decreed that the Oity of New Orleans, on her reconventional demand» recover of the plaintiffs as follows, to-wit:

B. Saloy, the sum of........................................$ 1,797 00

J. Bayle, the sum of........................................ 202 50

Mrs. J. Bayle, the sum of................................... 2á 00

B. Cestin, the sum of....................................... 105 00

John Friedericks, the sum of............................... 552 00

E. Seignouret, the sum of.................................. 15 00

J. A. Seignouret, the sum of................................ 127 50

with ten per cent, interest per annum on said several sums, from the 31st of March, 1880, till paid, and that the privilege and mortgage on the respective properties assessed be recognized; the costs of both Courts to be paid by the plaintiffs and appellants.

Dissenting Opinion.

Bermudez, C. J.

The question presented by the plaintiffs for solu-. tion in this case is :

Whether the City of New Orleans can be forced to receive ten mills on the dollar of the assessed value of property within her limits, in full payment of all municipal taxes due thereon, the city contending that the ten mills offered would be altogether insufficient, and that fifteen mills are indispensably necessary to meet her unavoidable expenses of administration and the payment of her creditors, in the manner in which they are entitled to be paid, under the law and the adjudications ■of courts of. justice.

The record does not disclose any intervention on the part of any of such creditors. It is clear, therefore, that whatever judgment may be Tendered in this suit will not, in any degree, affect or conclude them, or any one of them.

The City of New Orleans is a municipal corporation, created by the Legislature of this State.

She enjoys only those rights which have been expressly delegated to her, or which are a necessary incident of her existence. She exercises the power of taxation because of such delegation. That power the sovereign authority can recall whenever, in its wisdom, it may deem proper or necessary to do so for the common good, but subject to the rights which third parties may have lawfully acquired by its exercise.

When the power is withdrawn, and the obligation of valid contracts may be thereby impaired,, and,the municipal authorities which exercised that power continue in existence, the acquired rights can be enforced by compelling those authorities to exercise such powers in favor of the complainants. The theory denouncing judicial taxation can receive a legitimate, application only where the judiciary, in the absence of any law or authority, assumes to levy, collect and apply taxes.

However, a circumstance-may arise, in a case of most dire necessity, when the taxing authorities may, by sovereign behest, cease to exist, and none other substituted to them, or where the State itself may formally resume the exclusive power of taxation previously delegated. In. such last case, what would be the fate of the rights of creditors, even if acquired under legal contracts shielded by the Federal Constitution ?

It is patent in this case that, although the taxing authorities have not been abolished, their right to levy and collect taxes has been restricted by constitutional language couched in the negative, and, therefore, retroactive and prohibitive to ten mills on the dollar.

The legality of the curtailment of such power cannot be questioned by the municipal corporation contradictorily, with the taxpayers only, in the absence of any creditor, who alone can do so.

Whatever evidence was admitted to show the wants of the city, or the amount of her indebtedness, is not entitled to consideration, because not introduced contradictorily with any creditor. They are not before us. We hear no complaint from the bondholders. It does not belong to the city vicariously to champion and enforce their contract and protect their rights. Her duty is to submit to the constitutional requirement.

It may well be that the ten mills'are not sufficient to provide for the municipal administrative expenditures, which are entitled to priority, and for the satisfaction of the creditors, but its sufficiency or insufficiency cannot be agitated on the issues presented, and between the parties before the Court.

The municipal expenditures must be restricted in any case to the ten mills, and are, to that extent, only subject to the control of the Court.

The rights of the creditors who may have valid contracts, protected by the United States Constitution, could not be impaired by the article relied on by the plaintiffs. It would seem that it - is not, until the authorities empowered to tax shall have been suppressed, and the State shall have resumed the power of taxation, and shall have regulated the same, that the article in question, intended for public relief, can receive a full, practical and indisputable effect.

It may well be that the Convention contemplated that this article would prove effectual as to the City of New Orleans, contingent upon the exercise by the Legislature of the plenary powers expressly conferred by article 251. , ' ' "

I think the judgment appealed from, for those reasons, should be affirmed.

Dissenting Opinion.

Poché, J.

I regret the necessity of dissenting from the opinion of the majority of the Court in this case, but I am impelled thereto by my solemn convictions. Plaintiffs, citizens and taxpayers of the State, invoke the aid of the judiciary power, created under the Constitution of 1879, to enforce a provision of that Constitution, defining a limit to the taxable power of the City of New Orleans as a municipal corporation.

In article 209 of the Constitution, it is provided that “ no parish or municipal tax, for all purposes whatsoever, shall exceed ten mills on the dollar of valuation.” The City of New Orleans having levied, and haviDg attempted to collect, for the year 1880, a tax of fifteen mills on the dollar, plaintiffs pray that she be enjoined and limited to collect a tax of only ten mills.

The city, thus summoned to obey the mandate of the paramount law of the State, answers that the rate of taxation limited by the Constitution curtails her revenue to unreasonable proportions; that the proceeds of the ten mill tax is barely sufficient to meet her current expenses, and that she is warranted in raising an additional tax of at least five mills to meet the payment of her contract debts and interests on her bonded indebtedness. In this case no contract creditor asks the enforcement of obligations for which the city refuses to make adequate provisions by taxation or otherwise. And, in my opinion, the theory, resting on the adjudications of the Federal and other Courts, annihilating all State action or legislation tending to impair the obligation of contracts, has no application to this cause under the pleadings and between the present parties. I find no cases either in the Federal or State jurisprudence where the power of a court has been exercised for compulsory taxation by a municipal corporation to meet the payment of its contract debts in general. All adjudications in such cases have been predicated on the complaint of a particular creditor after unsuccessful efforts to obtain relief froni the municipal taxing power or authority.

I respectfully differ with my learned brothers in their position that the City of New Orleans derives her taxing power from any other source than the present Constitution of the State, and I hold that any Act of the Legislature, either antecedent or subsequent to the Constitution, granting a more extensive taxing power than that conferred and circumscribed by the Constitution, is either inconsistent with, or violative of, the organic law, and therefore null and void.

If, therefore, under an isolated issue, as presented by the pleadings in this case, this Court attempts to authorize a levy of greater taxes than limited in the Constitution, it inaugurates judicial legislation, which practically ignores the very power which created us, and whose authority and sovereignty is omnipotent in the State, in so far as it does not conflict with the Constitution of the United States.

When a proper, case is presented by a contract creditor of any municipal corporation in the State, who is refused a compliance with its obligations by the corporation, claiming immunity under the constitutional limitation, the Court should then interpret the alleged impairing of the obligation of the contract by the constitutional limitation to municipal taxes; but no such issue is presented in this case, and should not be injected into it. Citizens of the State invoke our aid to enforce a constitutional inhibition enacted for their protection, and it is our bounden constitutional duty to come to their relief, especially as no creditor of the city could be concluded in any contract right which he may have, and which is protected by the Federal Constitution.

In my humble opinion, the error committed by the majority consists in treating this case as though all the contract creditors of the city were before us, judicially urging their vested right to the proposed tax, and requiring a decree avoiding a legislative or constitutional provision impairing the obligation of their contracts, when, under the pleadings, the issue is confined to the taxing power on the one hand and the taxpayer on the other, and the sole question presented for solution is the interpretation and enforcement of a Constitutional safeguard.

For these reasons, which the press of official labors does not permit meto elaborate,I think that the judgment of the lower court should have been affirmed.

On Application eor Rehearing.

Fenner, J.

Attempt is made, in the brief in support of this application, to show that our decision herein is in conflict with the principles enunciated by the Supreme Court of the United States in the ease of Meriweather, Receiver of Memphis, vs. Garrett et al., recently decided.

We have made it our duty to study, with great care and particularity, the utterances of the Court in that case, including the conclusions^ of the Court as announced by the Chief Justice, the opinion in support' thereof read by Mr. Justice Field, and concurred in by Justices Miller and Bradley, and the dissenting opinion of Mr. Justice Strong, concurred in by Mr. Justice Harlan.

The 149th article of the Constitution of the State required us, in common with all other officers, before entering upon the discharge of our duties, to take an oath to “ support the Constitution and laws of the-United States and the Constitution and laws of this State.”

Where the two Constitutions conflict, it is impossible to give effect to both.

No one questions that, in case of such conflict, the Constitution of the United States is the paramount law, and must prevail.

The idea, advanced by some, that, in denying effect to a provision of' the State Constitution, where, in a particular case, it conflicts with the Federal Constitution, we are violating the mandate of the power which created us, is, therefore, utterly without foundation, because the most solemn expression contained in that mandate binds us, by oath, to support the Constitution of the United States.

It is essential to the preservation of any constituted order of government that some final arbiter should be established for the settlement of' legal controversies, especially of those fundamental questions involving-the meaning and effect of the organic law.

Under our system, the Supreme Court of the United States is established as such arbiter, in all cases involving the construction of the Federal Constitution, as to which it is vested with appellate jurisdiction over • this and every other Court.

In our original opinion we indicated, and shall not now recapitulate,, the reasons why we felt bound to adopt the settled construction placed upon the Federal Constitution by the highest Federal Court — at least. where that construction is not so manifestly usurpative that we could not follow’it without violating conscience.

In'no doubtful case, however, would we refuse effect to a provision; of our own Constitution on the ground of repugnancy to the Federal Constitution.

Certainly, in no case, where the U. S. Supreme Court had so construed the Federal Constitution as to make it consistent with the State provision, would we hesitate to adopt such construction and maintain the latter.

No candid lawyer will dispute that, in construing that provision of the Federal Constitution forbidding States from passing any law impairing the obligation of contracts, the Supreme Court of the United States has, in repeated decisions, announced and settled the following doctrine, which we state, as nearly as brevity will permit, in the very words of the Court, viz: That where a statute authorized a municipal corporation to issue bonds, and to exercise the power of local taxation in order to pay them, and persons bought and paid value for bonds issued accordingly, this power of taxation is part of the contract, and cannot be withdrawn until the bonds are satisfied; that an attempt to repeal or restrict it by State law is void; and that unless the corporation imposes and collects the tax in all respects as if the subsequent law had not been passed, it will be compelled to do so by mandamus. See Van Hoffman vs. Quincy, 4 Wall. 535, and subsequent cases.

Cooley, Const. Lim., p. 292.

We did not originate or create this interpretation. . We accepted it from the hands of the highest expounder of the Federal Constitution, vested with appellate jurisdiction over this Court on such questions, and thus rendering opposition on our part, even had we been disposed to offer it, foolish, because utterly vain.

This is no new interpretation, sprung, as a surprise, upon the State and city. It existed as a settled and universally recognized constitutional doctrine at the moment when the Star.e delegated to the city the taxing power now under consideration, as the inducement to the contracts predicated thereon.

It so existed at the moment when the sovereign will of the State, as expressed in its Constitution, required its judiciary to take an oath to support the Constitution of the United States.

The arguments against this doctrine, though now attractively and impressively formulated by skillful advocates, have in them nothing in the slightest degree new. They were considered and disposed of when the doctrine was adopted, and so often since that it was not supposed they could be the subject of further controversy.

If it were true, as is now contended by counsel, that the Supreme Court of the United States, in its decision in the Memphis case, had abandoned or modified the foregoing doctrine and had adopted another consistent with the right of the State to withdraw from an existing municipal corporation the power of taxation, even though forming part of a contract, we should not hesitate a moment to follow it, and would reverse the decision herein rendered.

A close study of that case, however, convinces us that neither the Court, nor any member thereof, has even intimated the slightest intention of abandoning or modifying the settled doctrine now under consideration.

It is. to be borne in'mind, that the only propositions which are entitled to be considered as the expression of the Court, are the conclusions announced by Chief Justice Waite, as its organ, and in these nothing can be discovered having the slightest bearing upon the question now under consideration.

The opinion read by Justice Field in behalf of himself and his associates, Miller and Bradley — luminous, learned and thoroughly sound as we believe it to be — is yet but the expression of those three judges, and cannot be accepted as the opinion of the Court. ■ That opinion, however, does not, in the slightest degree, countenance the inferences sought here to be deduced from it. Those inferences can be supported only by isolating general expressions from their context and disconnecting them from the limitations expressly placed upon their import in the opinion itself.

Thus, in treating of the legislative right to alter, abridge, or withdraw powers of taxation and all other powers delegated to municipal corporations, Justice Field is careful to recognize the existence of exceptions ,to this general right. He uses these words : “We say, generally, ' for there are some exceptions, where the tax provided is so connected with a contract, as the inducement for its execution, that the courts will hold the repeal of the law invalid as impairing the obligation of contracts. It is not of such taxes, constituting the consideration of contracts, that we are speaking,” etc.

In another part of his opinion he says: “ The Federal judiciary has unhesitatingly brushed aside all legislation of the State impairing the obligation of contracts. When a tax has been authorized by law to meet them, it has compelled the officers of assessment to proceed and levy the tax, and the officers of collection to proceed and collect it, and apply the proceeds. In some instances, where the tax was the inducement and consideration of the contract, all attempts at its repeal have been held invalid.”

These extracts are surely sufficient to demonstrate that the learned participants in this opinion maintain, in full vigor, the settled doctrine that the power of taxation once conferred on a municipal corporation by competent legislative authority, as the inducement and consideration of .a contract, cannot be withdrawn or repealed by any subsequent legislation of the State, so long as the corporation exists and the contract remains unfulfilled.

But when, as in the Memphis case, the charter of the municipal corporation has been repealed, and its corporate officers have, thereby, been abolished and destroyed, entirely new and different questions present themselves, and it was with such questions that the Court was most engaged in the Memphis case. The opinions expressed and conclusions announced by the Court are confined, in their proper application, to the case of an extinct corporation, and are apt to mislead when extended to the entirely different ease of an existing corporation. The important questions involved had reference, not so much to the rights of contract creditors, as to their remedies.

The Court is unanimous on three of the propositions announced by the Chief Justice, viz.:

1st. Property held for public uses cannot be subjected to the payment of municipal debts.

2nd. Private property of individuals cannot be subjected to the payment of municipal debts except through taxation.

3rd. The power of taxation is legislative and cannot be exercised otherwise than under the authority of the Legislature.

The opinion of Justice Field fully explains what is meant by this last proposition as applied to municipal corporations. It means that taxes can only be levied, (1) in virtue of existing legislative authority, and (2) by officers constituted and authorized by law to levy taxes.

Courts have no power, in any case, to levy taxes. The limit of judicial power over the subject is to require and compel duly constituted taxing officers, amenable to process, to obey existing law by levying a tax required thereby.

If there is no law authorizing the tax, or if, there being a law, there are no officers amenable to judicial process to execute it, then, in the language of Justice Field, “there is nothing upon which the Courts can act.”

The legislative power of the State is powerless, as we have seen, and as emphatically recognized in this very opinion of Justice Field, to impair the obligation of a contract by repealing a tax-law entering into and forming part of such contract; and, therefore, such law necessarily continues to exist until the contract is fulfilled. As long as there are taxing officers, they owe obedience to such existing law, and the courts may, and, on proper application, must enforce such obedience.

Neither by its constitution, nor' by statute, has the legislative power of the State seen fit to repeal the charter of the City of New Orleans, or to abolish or destroy its taxing officers.

The law and the officers thus continuing to exist, no element is wanting for the application of appropriate judicial remedies, and the taxpayers of New Orleans are not in position to claim the relief extended or suggested in the case of Memphis.

We find nothing in the decision of that case to alter or affect the views expressed by us in our original opinion.

The suggestion that taxes levied under the mandamus of a court is judicial taxation, rests upon an entire misapprehension of the meaning of those terms.

Mr. Justice Field, in his ©pinion, explains this so clearly that no apology is left for further confusion of ideas on the subject. After explaining that taxes can only be levied by legislative authority, and that courts are powerless to levy them, he says: “The form of procedure cannot change their character. Nor are they different, when levied under writs of mandamus for the, payment of 'judgments, and when levied for the same purpose by statute. The levy in the one case is as much by legislative authority as in the other. The writs of mandamus only require the officers of assessment and collection to obey existing law.” The office of the writ of mandamus is to compel officers to perform duties imposed on them by law. It is no more judicial taxation to compel taxing officers to perform the taxing duties imposed by law, than it is judicial legislation to compel any other officer to perform any other legal duties.

In proceeding to lay down the general doctrine that,taxes “being levied by the authority of the Legislature, they can be altered, postponed or released at its pleasure,” Judge Field-is careful to except, from the operation of this general doctrine, the case where, he says, “ the tax provided is so connected with a contract that the courts will hold the repeal of the law to be invalid, as impairing the obligation of the contract.”

In article 299 of her Constitution the State of Louisiana has interposed, between the City of New Orleans and her contract creditors, only the shadow of the mighty shield of her sovereignty. Shadows are powerless to protect. The Memphis decision is a portentous reminder that the shadow is cast by the shield itself, which exists, massive and impenetrable.

Another ground assigned for rehearing is that there is error in the judgment on the reconventional demand of the city in condemning the plaintiffs to pay ten per cent interest, from March 31st, on the taxes due.

The rate of interest chargeable on delinquent taxes was fixed at ten per cent by section 9 of Act No. 48' of 1871, which same act fixed the date of exigibility as July 1st of the current year. The Act No. 41 of 1874 simply changed the date of exigibility to March 31st. It did not alter or affect the rate of interest theretoforb established, nor did it prevent that interest running, under the general law of the State, from the time when the taxes became due and exigible as therein fixed. Such, we believe to have been the intention of the law, and such has been the practicable operation given to it, from that day to the present time. This construction receives additional sanction from the references to “ existing laws as to the time when city taxes became due and as to the interest thereon ”, contained in section 97 of Act 96 of 1877, and section 14 of Act No. 9 of Ex. Sess. 1878.

Article 210 of the Constitution providing a summary remedy, without suit, for the enforcement of taxes “at the expiration of the year in which they are due,” cannot be construed as repealing existing laws fixing the period at which city taxes become due and allowing interest from that date. The article presents no inconsistency with those laws. Even if the remedy provided in the article were exclusive of all others, the postponement of the exercise of that remedy to the end of the year would not necessarily involve a like postponement of the time at which the taxes become due or of the interest penalty provided for nonpayment at that time. On the contrary, the postponement of the remedy would furnish additional reason for the exaction of the penalty, since the latter would then be the only motive to prevent delinquency.

We express no opinion as to whether the remedy provided in the article is exclusive or not, because the question was not raised or argued on the original hearing, and its decision is not necessary in this case.

To the city’s reconventional demand, no exception was taken in the lower court, and no objection was urged even in this Court until after judgment.

Such an exception should have been urged in limine. A party may not take the chances of a decision in his favor on a voluntary submission, of the merits of the cause, and then escape the effect of an adverse decision, upon such a plea.

The rehearing is refused.

Poché, J.

Referring to the reasons assigned in my dissenting opinion in this case, I think that a rehearing should be granted, and therefore dissent from the opinion of the majority, refusing the rehearing prayed "for.

The Chief Justice concurs in the above.


author: Todd, J.

text:
    No. 6483.
    Carter, Congreve et al. vs. John P. Fowler et al.
    A succession, may be legally and validly renounced by a judicial declaration made to that effect by tbo universal legatee, in the Petition presented by him. to the Court of Probates to be confirmed testamentary executor under the will. Article 1017 of the Civil Code is • not exclusive of other modes of renunciation.
    ^PPEAL from the Fourth District Court, parish of Orleans. Injnch,

      J3. B. Forman for Plaintiffs and Appellants.

      F. W. Huntington and H. L. Hufour for Defendants and Appellees.
   The opinion of the Court was delivered by

Todd, J.

John P. Fowler, one of the defendants, under a judgment in his favor against Mrs. Anna M. Jennings, one of the plaintiffs, seized the property which is the subject of controversy in this case. The seizure was enjoined by the defendant in the writ, Mrs. Jennings and her co-plaintiffs, Who are the children and legal heirs of N. R. Jennings, deceased, and the issue of the marriage of said deceased with the said Mrs. Anna M. Jennings, his surviving widow.

The grounds of the injunction, as disclosed by the petition, are:

1st. That the judgment under which the seizure was made was an absolute nullity, because rendered without citation.-

2d. That the property seized belonged not to Mrs. Jennings, the defendant in the writ, but to her co-plaintiffs, the children and heirs of N. R. Jennings, who it was alleged acquired the same by inheritance from their deceased father.

The plaintiffs are appellants from the judgment rendered against them.

The property in question belonged to N. R. Jennings at the time of his death, which occurred in the year 1863, in the parish of St. Helena.

The deceased left at his death a last will, in which his surviving widow, Mrs. Anna M. Jennings, was constituted his universal legatee, and appointed-executrix of his estate. Within a month after his death, his widow presented a petition to the proper court of the parish where the deceased died, asking the confirmation of her appointment as executrix, and to be confirmed as natural tutrix of her minor children.

In this petition Mrs. Jennings declared that she renounced in favor of her children, the issue of her marriage with the deceased, all claim to his estate as legatee under his last will.

It is the effect of this renunciation that we are called on to consider in this case, and under our view of the case it is really the only question that requires consideration; for if the renunciation was valid, the property 'seized for th e debt of Mrs. Jennings belongs to her children, her co - plaintiffs, and was improperly seized for her debt. IE it was invalid, the seizure was proper.

The defendants’ counsel contends that the renunciation was null, for the reason that it was not made in the manner prescribed by article 1017 of the Civil Code, which declares that such renunciation must be made by “ public act before a notary, and in the presence of two witnesses.”

This article, in our opinion, has reference solely to extrajudicial renunciations, and was a provision in favor of the heirs of a succession to enable them to put in an authentic form the declaration by which they might be relieved from all liability for the debts of the succession.

The declaration made by Mrs. Jennings in her petition referred to was in the nature of a judicial confession, affording the very highest species of evidence recognized by law. It is regarded as of such solemnity that the Code expressly declares " that it amounts to full proof against him who has made it;” that it cannot be revoked, on a pretense of an error of law, but only when made through an error of fact. C. C., Art. 2291.

Again, heirs may be cited by creditors, and required to answer whether they accept or renounce a succession falling to them. C. C., Arts. 1036,1037, 1038.

If, in obedience to such citation, they answer that they renounced the succession, they are not required to go before a notary and execute a formal act in token of their renunciation, but simply to declare it their answer before the judge. In this case, Mrs. Jennings was not cited, it is true, to signify whether she accepted or renounced the succession, but her voluntary declaration, made at a fit time and in an appropriate proceeding, and under circumstances calling for such declaration, we hold to be as effective and conclusive as if made in answer to a citation.

The article relied on by defendants’ counsel, it will thus be seen, has no controlling effect on these provisions of the law to which we have just referred. It provides simply for a certain kind of renunciation, and does not exclude at least another mode which may be considered of higher rank and greater solemnity.

We conclude, therefore, that Mrs. Jennings did not own the property in controversy, nor any interest therein, at the time of its seizure, but that the same belonged to her children, the co-plaintiffs in the case, acquired by them, by inheritance, from the succession of their father, N. R. Jennings.

From this view of the case it is unnecessary to decide touching the alleged nullity of the judgment under which the seizure was made.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and that the property seized be decreed to belong to the petitioners, Anna Cárter, Alice Congreve, Caddie Jennings and' Cora Jennings, the legal heirs of Needier E. Jennings, deceased, and that the injunction against the sale of the same be perpetuated, defendants to pay costs of both courts.

Levy, J., absent.


author: Bermudez, C. J.

text:
    No. 6673.
    A. Duvic vs. J. B. Henry et al.
    Tli© averment of Plaintiff, tliat he is in possession of property bought by him when he was a minor, is a sufficient averment of his ratification of his purchase after he became of age to enable him to revendicate the property against the seizing creditor of his vendor.
    ^PPEAL from the Fourth District Court, parish of Orleans. Houston,

      E. Sabourin for Plaintiff and Appellant.

      W. S. Benedict and Jos. P. Hornor for Defendants and Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.

Under execution against Conrad Duvic, Henry seized a valuable blacksmith establishment, on the 20th February, 1875, as belonging to his debtor.

The plaintiff, Alphonse Duvic, claimed, on the 24th following, to be the owner of the establishment, alleging himself in possession thereof at the time of seizure, and enjoined further proceedings under the writ.

An exception was filed by the seizing creditor, that at the date of the alleged sale to plaintiff he was a minor, not emancipated, and incapable of making a valid contract.

On the trial of the exception the defendants established, by written evidence, that plaintiff was born on the 25th of October, 1854, and the plaintiff offered no evidence to show ratification by him, after his majority, of the purchase made by him of the establishment, some four months before he became of age.

The District Judge, considering that the evidence was essential, sustained the exception and dismissed the suit, dissolving the injunction, with a reserve of a right to sue for damages.

The petition disclosed a cause of action. The plaintiff alleged his purchase of the concern on the 5th of June, 1875, and that, on the 20th of February, when the sheriff seized, he was in possession.

The fact that he was not quite of age when he acquired the establishment cannot prove injurious to him. It is well established that a minor can better his condition by acquiring property, eventually at the risk of the vendor. The fact of possession at the time of seizure, alleged by the plaintiff, did not require proof, and had to be taken for true on the trial of the exception. 13 A. 205; 23 A. 13.

It is a matter pertaining to the merits, which otherwise would have been determined on a defense purely preliminary, which, even as to what it sets up, was irregular.

The averment of possession amounts to one of ratification. When verified by proof, it will be more effectual or powerful than that which can be ascertained from words. R. C. C. 2272; 10 M. 735; 6 L. 606; 2 L. 518; 13 A. 407.

The exception should have been overruled, and the defendant ordered to answer.

It is, therefore, ordered and decreed that the judgment appealed from be reversed; that the exception be overruled; that this case be referred to the Civil District Court for the parish of Orleans, which has superseded the late Fourth District Court, with instructions to reinstate it, and to further proceed therein according to law.

Levy, J., absent.


author: Fenner, J.

text:
    No. 8127.
    State ex rel. Adrien Bonnet vs. Samuel Mathews, Judge ad hoc.

    This is a suit for $154, brought in the late Parish Court of the Parish of Iberville; judgment was rendered for said amount and an Appeal taken to the late Piftb Judicial District Court; after the adoption of the Constitution of 1879, the case was transferred to the 23rd Judicial District Court for the Parish of Iberville, organized under said Constitution.
    Relator asks that the 23rd Judicial District Court, being without appellate jurisdiction in the matter, be ordered to dismiss the Appeal and issue execution on the judgment.
    -Held that, under a proper interpretation and understanding of the provisions of the Constitution of 1879, the case is to be tried de novo by the 23rd Judicial District Court.
    ApPLICATION for Writs of Mandamus and Prohibition.-

      Barrow & Pope for the Relator.

      Chas. O: Lauve, Alex. Hébert and A. Talbot for the Respondent.
   The opinion of the Court was delivered by

Fenner, J.

Relator avers, that in 1878 he brought suit in the late Parish Court of the parish of Iberville against one Blanehet, claiming the sum of $154 90, for which amount he recovered judgment in said •court; that from said judgment the said defendant, Blanehet, took a suspensive appeal, which was returnable to, and filed in, the late Fifth Judicial District Court for the parish of Iberville, and was pending ia said court at the time of the adoption of the Constitution of 1879; that after the organization of the courts provided by said constitution the said appeal was transferred to and filed in the 23d Judicial District Court for the parish of Iberville. ' Relator further alleges that he applied to said court to dismiss the appeal and to issue execution upon the original judgment on the grounds, substantially, that under the Constitution the said District Court had no appellate jurisdiction except over appeals from justices of the peace involving amounts not exceeding one hundred dollars; and that, therefore, the appeal must be dismissed and the original judgment executed.

The application was tried before the present defendant as judge ad hoc, in place of the District Judge, recused, who refused the motion to dismiss, and decided that the court had jurisdiction to entertain and determine the cause.

Thereupon, the relator makes the present application for writs of prohibition and mandamus, forbidding the said judge ad hoc from proceeding in the trial of said cause, and commanding him to dismiss the appeal and to issue execution upon the j udgment.

The respondent bases his action upon his interpretation of the Constitution and upon the 3rd section of Act No. 29 of 1880, which expressly directs that causes of the character of the one under consideration shall “ be transferred to and removed for trial and determination into the District Courts under the Constitution of 1879,” which provision he contends is in conformity with the requirements of the Constitution.

Relator, on the other hand, contends substantially:

1st. That the cause is one pending on appeal, and can be determined only in the exercise of appellate jurisdiction.

2d. That article 111 of the Constitution of 1879 limits the appellate jurisdiction of the District Courts to appeals from justices of the peace, not involving more than one hundred dollars.

3d. That the Legislature has no power to enlarge the appellate jurisdiction of the District Court or to enable it to try and determine any appeals other than those provided in the foregoing Art. 111.

4th. That Art. 261 of the Constitution of 1879 did not transfer this appeal to the 23d Judicial District Court, because that Court is not a. court “having jurisdiction thereof under this Constitution.”

If we were to admit all the foregoing propositions, including especially the last, the result would be far different from that which the relator seems, from the relief asked, to anticipate.

The result would be that his judgment, found by the Constitution of 1879 in a state of suspended execution, would be held immovably and indefinitely in the same state, by reason of the absence of any tribunal ’competent either to determine or to dismiss the appeal, or to alter, in any manner, the status quo of his cause.

We have examined, and, indeed, fully admit the authority of, the ease of Myers vs. Mitchell, 20th An. 533, wherein the Supreme Court organized under the Constitution of 1868, accepted the transfer of appeals pending in the former Supreme Court and involving amounts under five hundred dollars, and then dismissed them on the ground that it had not jurisdiction. That action, however, was expressly based upon Art. 151 of the Constitution of 1868, declaring: “The General Assembly shall provide for the removal of causes now pending in the courts of this State to courts created by or under this Constitution.” In obedience to this requirement, the General Assembly had transferred all the causes pending in the former Supreme Court to the then Supreme Court. The latter Court said : “ The causes have been transferred, the records are on file in this Court. It is, indeed, urged that, if this Court has no jurisdiction by reason of the insufficiency of the amount in dispute, it can make no order in the case, and, therefore, cannot make an order dismissing the appeal. A Court can always say it has no jurisdiction of a case. In this respect, we can perceive no difference between a case transferred to us by an act of the Legislature in compliance with the Constitutional command, and g, case brought to us by an appellant since the organization of this Court.”

It is clear the Court based its right to make any order in the case upon the ground that the case had been transferred to it by a constitutional act of the Legislature.

The Constitution of 1879 contains no provision analogous to Art. 151 of the Constitution of 1868. On the contrary, the present Constitution leaves nothing to legislative discretion on this subject; but distinctly and affirmatively provides for the transfer of all pending causes and the courts to which they shall be transferred.

Article 261, after regulating' the disposition of causes pending in the Supreme Court, declares: “ All causes that may be pending in all other courts, under the Constitution of 1868, * * shall be transferred to the courts respectively having jurisdiction thereof under this Constitution. This disposition is exhaustive and exclusive of any different transfer of any cause whatever. The Legislature clearly has no power to transfer any cause to a court not “having jurisdiction thereof under this Constitution.”

This dilemma then presents itself: The cause is either transferred to the 23d Judicial District Court, or it is not. If it is not transferred, it is not in that court, and the court can make no order whatever in relation thereto. If it is transferred, it can only be because the 23d District Court is a court “ having jurisdiction thereof under this Constitution.”

The absurd and anomalous consequences resulting from the adoption of the first branch of this dilemma, we have, already indicated. If the 23d Judicial District Court has not jurisdiction of this case, certainly no other court, under the present Constitution, has such jurisdiction; and in this, as well as in all other cases similarly situated, both the prosecution of the appeals and the execution of the judgments appealed from would remain in a state of permanent suspension.

It is impossible to suppose that the framers of the Constitution could have contemplated such absurdity, injustice and destruction of private rights.

We have already, in several cases, pointed out and defined the sound rules of interpretation by which we are guided in avoiding constructions of constitutional provisions repugnant to common sense and leading to such consequences. 32 A.

We find no difficulty in applying these principles in the present instance, because the clause of Art. 261 of the Constitution under consideration absolutely requires construction in order to avoid a violation of its requirements.

The clause embodies two commands:

First. That “ all causes that may be pending in all courts under the Constitution of 1868, shall be transferred” to the courts under this Constitution.

Second. That they shall be so transferred “ to the courts having jurisdiction thereof under this Constitution.” If we should discover a cause pending in a court under the Constitution of 1868, of which no court under the present Constitution has jurisdiction, we should be driven to the alternative of violating one or the other of the foregoing commands, unless we resorted to construction for the purpose of ascertaining the intention of the instrument and thus reconciling apparent inconsistencies.

Inasmuch as the command that all causes pending in all courts under the Constitution shall be transferred, is too clear, positive and rational to admit of interpretation, we are compelled to resort to a construction of the other clause directing the transfer to “ courts having jurisdiction thereof under this Constitution.” The jurisdiction of a court is usually determined by two circumstances, viz: 1st the nature of the proceeding, as, original or appellate; 2d, the nature or amount of the controversy. There is no court, under the Constitution of 1879, that has appellate jurisdiction over a cause involving $154 90. There is no court under that Constitution that has jurisdiction of any kind over a controversy involving that sum, except the District Courts. If, as in the case of State ex rel. Cobb & Gunby vs. Judges, 32 A., we could find a court having both appellate jurisdiction and 'jurisdiction over the amount in controversy, we should treat the case as transferred to that court; but as no court has the appellate jurisdiction, and as the 23d Judicial District Court is the only court that has jurisdiction of the amount in controversy, we must ex necessitate, consider that the Constitution intended that the case should be transferred to the latter court and to vest it with jurisdiction over it. '

We feel less hesitation in adopting this conclusion when we consider that the proceeding, though, in a certain sense, appellate, cannot practically be differentiated from an original proceeding. The case is, in any event, to be tried ele novo in the District Court, and as the latter court has succeeded to the original jurisdiction of the parish court in such case, it must itself execute any judgment which it may render. We make no doubt that these circumstances diverted the attention of the Convention from the necessity of making more particular provision for this class of cages, and led to the obscurity which we have found it necessary thus to clear away.

These views find support and confirmation from their conformity with the legislative construction of the Constitution as exhibited in the 3d section of the Act No. 29 of 1880, which we regard as merely declaratory and executory of the Constitution and in full harmony therewith.

The application for both the writs of prohibition and mandamus is, therefore, dismissed at relator’s cost.

Levy, J., absent.


author: Poché, J.

text:
    No. 6729.
    City of New Orleans vs. D. C. Labatt.
    City Ordinances, differently from Acts of the Legislature, must be proved, as they oannot be judicially talren notice of.
    The issue between the parties being the constitutionality and legality of the City Ordinance imposing a license-tax upon Attorneys-at-law, and there being no evidence of the Ordinance in the Record, the Appeal must be dismissed.
    APPEAL from the First Justice’s Court, parish of Orleans. Childress, J.

      Banal. P. Blanc, Assistant City Attorney, for Plaintiff and Appellee.

      J). C. Labatt, pa. pa.

   The opinion of the Court was delivered by

Poché, J.

Defendant is appellant from a judgment condemning him to pay a city license of twenty-five dollars on his profession of attorney at law for the year 1877.

For answer, he alleges the illegality and uneonstitutionality of the license claimed.

The record contains no copy or mention of the ordinance levying such a license against attorneys at law; and it is a well-settled rule of jurisprudence that courts cannot take judicial cognizance of city ordinances, which are not promulgated like State laws, and the existence of which, in tenor and effect, must be alleged and proved.

The transcript shows that defendant was absent on the day of trial, and that after hearing evidence, judgment was rendered against defendant; and we must presume that the judgment was rendered on sufficient evidence. Our jurisdiction, however, in such a case can attach only on the issue raised by the contestation of the legality or constitutionality of the license levied and sought to be enforced.

This issue can only be tried by considering the ordinance _ which levies the license or tax, and the ordinance having not been brought before us or proved, we are debarred from a consideration of the issue thus presented, and have, therefore, no jurisdiction of the case. It is incumbent on appellant to have seen that the transcript contains all the elements or documents which are essential to vest jurisdiction in this Court.

It is, therefore, ordered that this appeal be dismissed at appellant’s costs.

Rehearing refused.


text:
    No. 7766.
    Michael J. McAdam vs. John S. Rainey et al.
    A party who bases his right to an Injunction on Article 303, C. 3?., must show, either that he has a right of property in the thing, or that the act sought to he enjoined, would, if done, give hini a right to damages.
    APPEAL from the Fourth District Court, parish of Orleans. Houston, J.

      Gibson, Hall & Montaomery for Plaintiff and Appellant.

      Percy Boberts for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff, a judgment creditor of Soria, institutes this action to annul a sale of movables, alleged to have been fraudulently made by the latter to Rainey, coupling it with an injunction, under Art. 303 C. P., to prevent the vendee from disposing of the same, penclente lite.

On a rule, the defendant pleaded that an injunction did not lie, on the face of the papers, and could not issue at all, as its object was to arrest the execution of a judgment of the Supreme Court.

From a judgment dissolving the injunction, the plaintiff has appealed.

The record discloses that, in a previous proceeding, Eainey had, on a third opposition, obtained an injunction to prevent the sale of the same movables; that the plaintiff had denied the reality of the sale, charging its simulation, and, on the trial, had endeavored to establish that it had taken place in fraud of his rights. From a judgment annulling the sale, an appeal was taken, and the Supreme Court, considering that the simulation had not been established, and that the attempt, under the pleadings, to demand the nullity, on account of fraud, could not be countenanced, reversed the judgment and reinstated the injunction in'perpetuity, without prejudice to the rights of McAdam to pursue the property in question by the revocatory action. 31 A. 862.

This suit is brought under that reserve.

The petition contains allegations that the sale was fraudulent and simulated. It does not aver, that the defendant Eainey proposes to dispose of said effects during the pendency of the suit; that he is insolvent; that if he dispose of said effects, he will part with the proceeds of sale; or that he will do any act, which, if consummated, will prove injurious to the plaintiff.

It is settled that one who bases his right to an injunction, on article 303 C. P., must show, either that he has a right of property in the thing, or that the act sought to be enjoined would, if done, give him a right to damages. 30 A. 800.

It is not enough that a petitioner for an injunction make oath to the verity of all the averments of facts in his petition. It is essential that the condition of things, actual and- prospective, as developed by the averments, be such that the Court may see whether the plaintiff has set forth sufficient reasons in justification of his fear of the commission of the act apprehended, and that such act, if it be not prevented, and be committed, will cause damage. The petition is deficient.

C. P. 304, 296; 6 L. 63; 14 L. 277; 1 R. 497; 2 A. 321; 4 A. 147; 14 A. 57; 28 A. 649. Crescent City Live Stock Co. vs. Police Jury, recently decided.

We do not think that, under the showing made, the plaintiff was entitled to the remedy sought, and find'no error in the judgment.

It is therefore affirmed with costs.

Levy, J., absent.


author: Fenner, J. Fenner, J.

text:
    No. 8092.
    State ex rel. Buckner et al. vs. Jastremski et al.
    This Court has no appellate jurisdiction over a snit between, the contestants for a public office to .which no salary or pecuniary perquisite is attached. Decision in State ex rel. Newman et al. vs. Hayles, 32 An., 1135, affirmed.
    A PPEAL from the Seventeenth Judicial District Court, parish of East Baton Rouge. Sherburne, J.

      J. C. Egan, Attorney General, D. V. Barrow, John H. Lanson and Herron & Beale for Relators and Appellants.
    First — In the action under the intrusion and usurpation law the State is, at times, the sole plaintiff, and always the plaintiff. The injured person, although his name must be joined to the proceeding, may not be a party j but, when made a party, he is so incidentally and secondarily.
    Second — The pecuniary compensation allowed to the officer is not the matter in dispute, no more than the value of the office to him appreciable in money. ,It is the interest of the State as the prominent plaintiff that is the matter in dispute; and the interest of the person injured, joined as a secondary party, can be considered only as an addition to the matter in dispute. ,

      C. G. Bird, Beale & Goodale for Defendants and Appellees.
    The proceeding under the Intrusion Act being of a civil nature, the jurisdiction of the Court ratione materice must be determined as in all other civil matters. "When the office in dispute is shown to be one without salary, fee or emoluments, the Supreme Court is without jurisdiction ratione materice. Criterion, in all cases of right to appeal, is the amount involved. Mere allegations of petition insufficient to establish amount.
    Suit must fail when relators do not allege in themselves any right of property; assert no personal interest; nor make any allegation that the interests of the University or public are endangered.
    The State is only interested to the extent of seeing that all public offices are filled by persons legally appointed and qualified. In all proceedings under the “Intrusion Act,” the parties defendant may show any fact which in law may perfect their title to office. The State cannot, by allying herself with a relator claiming office, place the defendants at any disadvantage.
   The opinion of the Court was delivered by

Fenner, J.

This' is a suit under the intrusion-into-ofQee act, the sole question involved being whether the relators or the defendants are lawfully entitled to hold and exercise the offices of supervisors of the Louisiana State University and Agricultural and Mechanical College.

No salary or pecuniary perquisite of any kind is attached to the offices in controversy. The same question of jurisdiction ratione materice which presented itself in the case of State ex rel. Newman et al. vs. Ben. Hayles, recently decided, meets us here.

In that case, involving the title to the office of police juror of a parish, we declined jurisdiction, only after a most careful consideration of our constitutional duty, of judicial precedents, and of all the grave consequences directly or indirectly flowing from our decision..

These considerations have now been again carefully reviewed by us, and our conclusions are only strengthened thereby.

The intrusion-into-offlce act had rested on the statute-books of the State for eleven years prior to the adoption of the Constitution of 1879. It had been repeatedly decided, under the previous Constitution, in suits brought under that very act, that the pecuniary interest involved was the amount of the salary of the office in dispute, and such was the test of the appellate jurisdiction of this Court.

This doctrine was never questioned, except by a mere obiter dictum of the majority of the Court in the famous Returning Board case, 25 A. p. 8, by which they advanced the doctrine that if the cause were, in their opinion, important and involving the interests of the people, they would-not “refuse to entertain jurisdiction, even if there were no pecuniary interest shown.” The effect of such dictum is to abrogate the mandate of the Constitution, and to set up a different test of jurisdiction based upon the Court’s own idea of the importance of controversies. This would be contrary to the Constitution and to settled jurisprudence, and was substantially abandoned by that Court itself in the case of State ex rel. Simmons vs. Vargas, 28 A. 342, where it unanimously declined jurisdiction of a controversy involving the offices of councilmen of the city of Natchitoches — certainly one of great importance, and involving the interests of the people — upon the express ground that “ there is no pay attached to said offices.”

Such being the state of jurisprudence under the intrusion act, as construing the criterion of jurisdiction in controversies arising thereunder, the Constitution of 1879, in defining the jurisdiction of this Court, has not changed it in any manner which prevents or affects the application of these judicial precedents.

Apart from the plainness of the language, of the Constitution, and even if we could consider it as ambiguous, we could not, without violating settled rules of construction, avoid giving it an interpretation consonant with that applied up to the time of its adoption to the similar provisions of former Constitutions.

The interest of the State to. maintain this appeal on the ground that the Board of Supervisors are intrusted with the distribution of public funds exceeding $20,000, is not different from the interest set up by the City of New Orleans in the case of State ex rel. Belden vs. Markey et al. 21 A. 743, and there held to furnish no basis of jurisdiction; That case involved the titles to the offices of Aldermen and Assistant Aldermen of New Orleans. The city averred and made affidavit that the whole revenues and property of the city, amounting to millions of dollars, were to be administered and disbursed by the officers concerned, and, on that gound, claimed the right to appeal. But the Court said: “We have examined the record in vain to ascertain what the pecuniary interest of the city is in this suit. * * How can any pecuniary interest be said to be involved in this case, when there are neither salaries, fees nor perquisites attached to the offices which are the subject of the suit?”

We do not regard the State as interested, on one side or the other, in this controversy, or that she asserts the rights of either set of claimants; or that she is any more aggrieved by a decision in favor of defendants than she would be if the decision had been in favor of relators. She has no interest except to end controversy.

It is said, however, that one of the relators, D. F. Boyd, has an appealable interest, because he held the office of superintendent. Evidently it is not this office which is in controversy here, but merely the offices of supervisors who are empowered to appoint such superintendent. Col. Boyd has no right to the appointment, unless chosen by the voluntary action of the Board; non constat that he would receive the appointment from the relators more than from defendants.

The case cannot, in any respect, be differentiated from the Hayles case, which was brought under the intrusion act, though there the cumulative remedies of injunction and quo warranto were invoked— whether properly or not, is immaterial here.

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

On Application for Rehearing.

Fenner, J.

The learned and ingenious brief of counsel for relators, after receiving our earnest consideration, fails to convince us that there is involved in this controversy a “ matter in dispute or fund to be distributed exceeding one thousand dollars exclusive of interest.” Save in certain enumerated cases, of which this is not one, the Constitution has fixed a purely pecuniary standard by which our appellate jurisdiction is measured and defined. We cannot, and will not, supplant this standard by another of our own creation.

We approve and follow the doctrine of the first Supreme Court of Louisiana, as announced by its great Chief Justice: “In our opinion, no Court should be more scrupulously cautious than this of overleaping its constitutional and legal barriers, because it' is a' Court of final resort and no other Court can correct its abuses. Let authority be once assumed under the pretense that it is impliedly granted, and liberty must soon make room for arbitrary power.”

Laverty vs. Duplessis, 2 M. 57.

Far better that the most important controversies should submit to the determination of inferior tribunals, than that this Court should set the pernicious example of overstepping the limits of the powers conferred upon it by the Constitution.

The rehearing is refused.

Levy, J., absent.