text:
    No. 3636.
    N. Louque v. Louisiana Levee Company.
    Tbo purpose of the laws is clearly, that the work of constructing, repairing and strengthening the levees shall be done under plans, surveys, measurements and directions to be furnished by a board or commission of engineers, for the appointment of which the law provides, and the Louisiana Levee Company will not be held responsible in damages to individuals except in certain cases and according to the provisions recited in section 5 of act Ko. 4, of the acts of 1871, page 33.
    Appeal from the Seventh District Court, parish of Orleans. Ool-

      lens, J.

      Oharles Louque, for plaintiff and appellant. A. <& W. Voorhies, for defendant and appellee.
   Taliaeerro, J.

The plaintiff, who owns a plantation in the parish of St. John the Baptist, near the point ou the Mississippi river where a large crevasse in the levee occurred on the nineteenth of April, 1871, alleges that he sustained great damage and loss from the overflow of his plantation and consequent destruction of his crop that year, resulting from the crevasse. He alleges that the loss and injury he has suffered arose from the culpable neglect of the Louisiana Levee Company in failing to cause the weak and defective condition of the levee at the place where the crevasse occurred to be repaired and strengthened in time before the rise of the river, so as to prevent the break that occurred and secure the adjacent plantations from being submerged with water. He estimates his loss at forty-nine thousand dollars, and brings this action to recover that sum from the Levee Company.

The answer is a general denial. The company specially deny that they were bound under their contract with the State to repair, strengthen or reconstruct, at the time alleged in the petition, the levee therein described, and that they are not answerable for the damages, if any, which the plaintiff may have sustained from the cause by him alleged.

There was judgment in the court below in favor of the Levee Company, and the plaintiff has appealed.

We find by referring to the laws passed in 1871 on the subject of levees, that the Louisiana Levee Company formed itself into a corporation, under the general laws of the State, on the eleventh day of February, 1871. Acts of 1871, p. 29. That this act was confirmed by the Legislature on the twentieth of February of the same year. Acts of 1871, p. 29, By the act approved February 20, section 2, p. 33, it is declared that “the Louisiana Levee Company shall take charge of, manage, control, construct, maintain, repair and keep in repair all the levees in this State on the Mississippi river, its tributaries and outlets,” etc. In the following section, p. 34, it is provided that “ said corporation shall have full right and authority, at all times to enter upon and occupy as far as necessary, by their surveyors and engineers, contractors, agents and servants, together with all necessary carts, animals, tools, materials and equipments, all such lands as may be necessary, and to remain as long as may be necessary for the purpose of doing and performing all aud singular matters and things required to be done and performed in and about the inspecting, building, construction, maintenance, repairing and management of the levees as aforesaid,” etc.

The powers granted to the Levee Company over the entire subject are ample and exclusive. But the purpose of the law is clearly that the work of constructing, repairing and strengthening the levees, shall be done under plans, surveys, measurements and directions, to be furnished by a board or commission of engineers for the appointment of which the law provides in act No. 4, acts of 1871, page 33. Section one recites, that in order to maintain a uniform and perfect system, the location and dimensions of all levees to be constructed, maintained, repaired, and kept in repair and managed, shall be determined by a commission of three engineers, to be appointed as follows, to wit: One by the Governor of the State of Louisiana, who is hereby authorized and directed to appoint said engineer within thirty days after the acceptance of the terms of this act by the said company as hereinafter provided ; one by the Louisiana Levee company and one by the government of the United States. It shall be the duty of said commission, and they are hereby directed to determine the proper location and dimensions of all levees to be constructed, repaired or strengthened by the said corporation, and the standard of dimensions to which they shall be maintained by said company, and to report the same with maps and profiles thereof, and the number of cubic yards to be built in the construction of new levees, and in the strengthening, enlarging and repairing the levees now in existence, to the Secretary of War, the Governor of the State and the president of said company, which report shall be made in sections of five miles or more of said levees.” Section four of the same act provides, “ that said corporation shall, within sixty days from the receipt of the report of said commission, commence the construction of said levees,” etc. Section five recites, “ that on and after the completion of any and all sections of said levee, said company shall maintain the same up to the standard dimensions required by the report of said commission, and in the event of said corporation failing or neglecting to do so, it shall be liable in damages to any person or persons injured by such neglect and failure; provided, that said corporation shall in no case be liable where such injury shall be caused by, or said failure shall result from, acts of violence of men, the wrongful acts of individuals, the existence of obstacles interposed by the action of courts, or the operation of causes over which said company can have no control, or on account of the floods rising above the standard height determined by said commission.”

The acceptance and ratification of the act forming the contract between the State and the company took place on the twenty-eighth of February, 1871. Acts of 1871 — act 27, page 64.

Section ten of the act of twentieth February, 1871, page-37, clothes the company with the power of obtaining from a court of competent jurisdiction a writ of maudamus commanding any officer of the State who may fail, neglect or refuse to do any of the matters or things he shall be required to do by the provisions of this act, to do and perform the matter or thing so required of him.

We see then by a review of the several provisions of the acts relar ting to the construction and repair of the levees, that although the company is invested with very general control and management of the entire subject of levees, yet this- general supervision and control is subordinated to those clauses and sections of the different acts which require the company to perform the work of constructing and repairing in conformity with the plans and directions afforded them by the Board of Engineers, after surveys and measurements made by them. An engineer, it is seen, was to be appointed within thirty days after the acceptance of the act by the company.

The acceptance was made on the twenty-eighth of February. The appointment then was to be made within thirty days or prior to the last day of March. But no engineer was appointed within the thirty days as required, nor was an appointment made until September following.

The crevasse took place on the seventeenth of April.

It seems clear that the company was at that time without power to act. No engineer was appointed. The Governor had the entire month of March within which to make, the appointment, with the exception of the last day of that month. The company could only proceed by mandamus after the expiration of the thirty days within which the Governor had to appoint. Only twenty days intervened between the expiration of that delay and the occurrence of the crevasse. A reasonable time would have been required for the survey of the work and the report, before which the company could not proceed to execute the work. Within that brief space of time it is manifest the company could not, in pursuance of the rules and requirements of law, have performed the work. No responsibility, therefore, rested upon them for not repairing and strengthening the levee at the point where the crevasse happened.

The decree of the lower court we think correct.

Judgment affirmed.

Rehearing refused.


source: Caselaw Access Project

author: Wyxy, J.

license: Public Domain

text:
    No. 5430.
    Crescent City Gaslight Company v. New Orleans Gaslight Company.
    The franchise of tho plaintiff is property, and it has been injured in the enjoyment thereof by the claims and pretensions of the defendant, founded on a statute alleged to be unconstitutional and void. It is true, the right of the plaintiff to make and vend gas will begin on the first of April, 1875, but the right to sell shares of its capital stock, to the amount of three millions of dollars and the duty to erect works, buildings, machines, lay £as pipes, and prepare everything necessary to begin the enterprise or business, vested the moment the corporation began.
    A void title setup to defeat plaintiff’s right to prepare for their business, invades their charter as effectually as if set up to obstruct the business after it had begun.
    This is not an action of damages under article 2315 of the Revised Code. The plaintiff has shown an injury, and if there is no express law giving a remedy, it can appeal to the equity powers of tho court for redress. Revised Code, art. 21. The exception to the petition of plaintiffs on the ground that it discloses no ground of action can not be maintained.
    The purpose to extend the charter of the New Orleans Gaslight Company for twenty years from the first of April, 1875, is no more disclosed in the title of tho act, entitled “ An Act to extend the area of gas lighting in the city of New Orleans and to reduce the price now paid by consumers,” than the purpose to create a new corporation for making and vending gas is indicated therein. The prolonging of defendant’s corporationfor twenty years virtually gives a new charter for that period. Moreover, the title is deceptive and calculated to mislead the mind from the true object of the statute. Hence, the statute is repugnant to article 115 of the constitution of 1852 then in force and is therefore void.
    Hothing but a valid statute of the State could confer the grant extending the charter of the defendant until 1895, and the act of March 1, 1860, which had that object in view, being unconstitutional, was utterly void from the beginning.
    The act incorporating tho plaintiff’s company, conferring on it the solo and exclusive right to make and vend illuminating gas in the city of New Orleans for fifty years from the first of April, 1875, is not repugnant to article 114 of the constitution of 1868 then in force, requiring the object or objects of every law to be embraced in the title. The object of the act as stated in the title was: “to incorporate the Crescent City Gaslight Company.” To incorporate a company is to create it with certain powers and privileges. These powers and privileges need not be detailed. The title of the act disclosed the creation of a Gaslight Company. This was sufficient to cover the monopoly or exclusive privilege to make and vend gas.
    An exclusive privilege or monopoly, can be granted under the usual title to incorporate a company. The grant of the monopoly complained of in this case does not violate the constitution, and is valid.
    The State, intervening, not to set up some separate right of its own, but solely for tho purpose of upholding the rights of the plaintiff against the defendant, in regard to a franchise granted by itself, has no interest whatever in the controversy, and the court below did not err in dismissing the intervention.
    In regard to the intervention of the city of New Orleans, the right reserved by the State for it to become the purchaser of the gasworks, fixtures, etc., at the expiration of the charter of the defendant, was not such a vested right that the State could not withdraw or recall, without contravening that provision of the constitution of the United States prohibiting a State from impairing tbe obligations of a contract.
    Even conceding that the authority given to the city, if she saw fit, at the expiration of the defendant’s charter, to purchase the gas works, by implication conferred authority to ' operate said workg, the State had the right to recall or withdraw the authority, as it did in the act of 1870, before the time for using the authority arrived, and the grant of the right and exclusive privilege to plaintiff to make and vend gas, is utterly repugnant to the . right of any other person or corporation to make and vend gas in New Orleans. This grant by implication rovokes or recalls any previous authority given the city to buy the gas works of defendant on the first of April, 1875. This is violating no contract pror tectedby the constitution of the United States. The intervention of the city can not be maintained.

      APPEAL from the Superior District Court, parish of Orleans. Baw-Mns, J.

      C. Gibson, H. O. Dibble, Bcmdolph, Singleton <& Browne, Kennard, Bowe & Prentiss, for plaintiff and appellant. J. A. Campbell, Semmes & Mott, and Bandell Bunt, for defendant and appellee. J. B. Cotton and A. P. Field, Attorney General, for the State of Louisiana, intervenor and appellant. George S. Lacey, city attorney, and F. K. Butler, for the city of New Orleans, intervenor and appellant.
   Wyxy, J.

The important questions presented in this case are the following:

First — Does the petition disclose a cause of action ?

Second — Is the act of March 1, 1860, extending the charter of the New Orleans Gaslight Company, as now established by law, from first April, 1875, until first April, 1895, repugnant to articles 115 and 116 of the constitution of 1852, requiring the object of every law to be expressed in the title, and prohibiting the revival or amendment of a law by reference to its title?

Third — Are the acts of twentieth April, 1870,. and tenth July, 1873, incorporating the .plaintiff company and conferring on it the sole and exclusive privilege of making and vending gas in the city of New Orleans for fifty years from the first April, 1875, repugnant to article 114 of the constitution of 1868, requiring the object of every law to be expressed in the title, and likewise repugnant to said constitution, in so far as the said act creates a monopoly in favor of plaintiff. Other questions arise in regard to the rights of each of the intervenors which will be stated hereafter.

In order to determine whether the plain tiff discloses a cause of action it will be necessary to consider the allegations of the petition, which for the purpose of the inquiry must be taken as true.

Plaintiff alleges that by the act approved April 1, 1835, the defendant obtained from the State of Louisiana a charter, amended March 10, 1845, and also on fifteenth March, 1854, conferring on it the sole and exclusive right to make and vend illuminating gas in the city of New Orleans for forty years, or until first April, 1895, “ at which period all the corporate privileges of said company shall expire; that the defendant, the New Orleans Gaslight Company, has continued to enjoy all of the franchises aforesaid until-now; that plaintiff, the Crescent City Gaslight Company, obtained from the State of Louisiana by act of April 20, 1870, a charter, amended July 10, 1873, granting to it tlie' sole and exclusive privilege of making and vending gas in the city of New Orleans for fifty years, from first April, 1875, the period at which defendants’ corporate privileges expire, according to the terms of its charter, granted in 1835. Petitioner further shows that the act approved March 1, 1860, entitled “ An Act to extend the area of gas lighting in the city of New Orleans, and to reduce the price now paid by gas consumers,” which act provides that the charter of defendant, “ the New Orleans Gaslight Company, as now established by law, shall remain in full force and effect until the first day of April, 1895,” is unconstitutional and void, and no rights accrued to defendant thereunder, because said act was passed in violation of articles 115 and 116 of the constitution of 1852, then in force; nevertheless, petitioner shows and avers that the New Orleans Gaslight Company aforesaid has been assuming that its said charter will not'expire until the first day of April, 1895.

Petitioner now further shows that the Company, plaintiff, in order to avail itself of the exclusive privilege to make and vend gas in the city of New Orleans, from and after the first day of April, 1875, as aforesaid, granted by the 8th section of plaintiff’s charter, as aforesaid, will be obliged to expend large sums of money, exceeding one million of dollars, in the erection of suitable works, buildings, fixtures, machines, etc., etc., and in laying mains, pipes, etc., etc.

Petitioner shows that it will be necessary to commence the construction of such works at once, in order to be ready to deliver gas at the time fixed when the privileges of the Company will commence. Petitioner shows that it is of paramount importance, both to plaintiff and the public, that the said works and preparations shall be so completed, and thatif the Company is prevented from so completing its works before the first of April, 1875, it will suffer irreparable loss.

Petitioner now further shows and avers, that the assertions and claims of the New Orleans Gas Light Company to the pretended extension of its charter for twenty years beyond the first day of April, 1875, as aforesaid, is a slander upon the title of plaintiff, to the rights and privileges in its charter contained, as hereinbefore set forth. Petitioner further shows that the said pretensions and claims of the said New Orleans Gas Light Company are calculated to, and do impair the value of plaintiff’s charter, and the credit of the company, and are calculated to, and do impede the company in its efforts to complete the necessary preliminary works, as aforesaid, and thereby cause plaintiff damages largely in excess of five hundred dollars, and work plaintiff an irreparable injury.

Petitioner still further shows that unless the pretended extension of the charter of the said New Orleans Gas Light Company, can be adjudged null and void, and unless the said company shall be forbidden by decree of court from asserting such pretensions, and thus the cloud be removed from the title of plaintiff’s charter, plaintiff will suffer still greater damage and irreparable injury; all of which can, and will be fully and specially shown on the trial.

Finally petitioner shows that a writ of injunction is necessary to prevent the New Orleans Gas Light Company and its officers and directors from asserting any right or claim, to make and vend illuminating gas, in the city of New Orleans, from and after the first day of April, 1875, the date of the expiration of the charter of the said company, as aforesaid.

The relief prayed for under the foregoing allegations is, that the plaintiff be decreed to have the sole and exclusive privilege to make and vend illuminating gas in the city of New Orleans for fifty years from first April, 1875; that the act of March 1, I860, extending defendant’s corporate life and privilege to make and vend illuminating gas in New Orleans from first April, 1875, until first of April, 1895, be decreed unconstitutional and void, and that the defendant be injoined, restrained and prohibited from assuming or claiming in any manner the right to make and vend illuminating gas after the first April, 1875, or from attempting to continue to make and vend it after said date.

It appears from the foregoing allegations, which must be taken as true, that the plaintiff, under its charter or contract with the State, has undertaken to begin on the first April, 1875, the large business of making and vending gas in the city of New Orleans, an enterprise exclusively confided to it; that in order to commence operations at said time, suitable works, buildings, fixtures, machines, the laying of gas pipes, etc., have to be constructed, involving an expenditure of large sums of money, exceeding one million of dollars; that if said works and preparations are not completed for the manufacture, sale and delivery of gas by that time, both the plaintiff and the public will suffer irreparable loss; that the assertions, pretensions and claims of defendant that its charter was continued for twenty years from first April, 1875, by act of March 1, 1860, which is void for unconstitutionality, are calculated to and do impair the value of plaintiff’s charter and the credit of the company, and are calculated to and do impede the company in its efforts to complete the necessary works as aforesaid, thereby causing large damages to plaintiff; and that said unfounded pretensions will continue to work plaintiff irreparable injury, unless said act of March 1, 1860, be decreed unconstitutional and void, and the defendant be inhibited from setting up rights thereunder; that the plaintiff is entitled to the use of its credit in raising funds to construct the large works, and make the preparations necessary to begin the manufacture and sale of gas on first April, 1875, can not be doubted; and that it is injured by the pretensions of defendant, founded on the act of March 1, 1860, calimed to be void, is equally certain. If the plaintiff is injured to the extent claimed, and is crippled by the loss of its credit, so as to be impeded in carrying out its contract with the State, by the pretensions and claims of defendant, founded on the act of March 1, 1860, which is alleged to be unconstitutional and void, the question is, can this court redress the wrong of which the plaintiff complains and give the relief prayed for in the petition ?

We think that it can. Article 10 of the constitution provides that: “All courts shall be open, and every person shall for injury done himin his land, goods, person, or reputation, have adequate remedy by due process of law and justice administered without denial or unreasonable delay.” “ In all civil matters where there is no express law the judge is bound to proceed and decide according to equity.” * * * Revised Code, article 21.

The franchise of the plaintiff is property, and it has been injured in the enjoyment thereof by the claims and pretensions of the defendant, founded on a statute alleged to be unconstitutional and void. It is true the right of the plaintiff to make and vend gas will begin on first April, 1875, but the right to sell shares of its capital stock to the amount of three millions of dollars, and the duty to erect works, buildings, machines, lay gas pipes, and prepare every thing necessary to begin the enterprise or business, vested the moment the corporation began. Indeed all of plaintiff’s franchises vested from the moment the grant was made by the State, the exercise of the right, however, to make and vend gas being postponed till first Apiil, 1875.

If the claims and pretensions of defendant, founded on a void statute, destroy the credit of plaintiff so that its shares of capital stock can not be sold, or funds raised, in order to construct the necessary works to begin the business of gas making by the time stipulated in the charter, are not the rights of the plaintiff, to that extent, invaded 1 If these unfounded claims and pretensions hinder or prevent the plaintiff from getting ready to begin business on the first April, 1875, is not an injury sustained on account thereof 1

Not only plaintiff’s right to sell shares of its capital stock is invaded, but, practically, all the privileges conferred by the charter are defeated, because plaintiff is stripped of the means necessary to begin the business contemplated by the grant. The plaintiff has as much right to use the means authorized by the charter to make its preparations, as it will have to pursue the business when the preparations are made j. and an invasion of the one ought to be redressed as well as an invasion of the other. A void title set up to defeat plaintiff’s right to prepare for the business, invades the charter as effectually as if set up to obstruct the business after it has begun.

It is urged, however, that this is not one of the actions mentioned in the Code of Practice. The authors of our laws have not seen fit to prescribe forms for every legal demand, and they have not catalogued in the Code of Practice all the actions that may be brought in our courts; it is, perhaps, well that they have not done so, lest by the omission of a form, substantial relief in some case might be denied to a person whose rights have been invaded. The learned counsel of defendant insist that as their client had reasonable cause to believe' that its claim, founded on the act of March 1, 1860, is valid, there is n.o cause for an action of damages on account of the assertion thereof; that their client committed no fault, which is essential to recovery of damages, under article 2315 of the Revised Code, which declares that “ every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” * * * And citing a case in 11 An. to the effect that “ when there is no fault there can be no actionable damage,” they conclude that no pis or right of the plaintiff has been invaded, and no relief should be granted by the court.

The fallacy' of the reasoning consists in the assumption that this is an action of damages under article 2315 of the Revised Code, and because it does not properly lie there, no right of the plaintiff has been invaded and no relief can be granted.

In our opinion the plaintiff has shown an injury, and if there is no express law giving a remedy, it can appeal to tlie equity powers of the court for redress. Revised Code, article 21; Marbury v. Madison, 1 Cranch 177; Dodd v. Benthal, 4 Heiskal 602; State v. Patterson, 34 N. J. Law, 163; State v. Jersey City, 34 N. J. Law 390; Story’s Equity Jur., page 31; Broom’s Legal Maxims, 180; Hillard on Injunctions, 550 ; England v. Lewis, 25 Cal. 357 ; Evans v. Merchants’ Bank, 51 Mo., 345 ; 22 Missouri 348 ; see also Osburn v. The Bank of United States. 9 Wheaton 742.

If, however, the cause of action were doubtful, we would feel inclined in view of the public interest involved in the issues herein, to maintain the suit and proceed with the trial on the merits. As the learned judge a qiio well remarks in his written opinion, the making and vending of gas for the public in New Orleans, is something in which the community at large are interested, and they are concerned in having the opportunity to obtain gas secured to them beyond dispute or doubt. If, therefore, it should be fonnd that the right of the defendant to make and vend gas under existing legislation, ceases on the first of April, 1875, and that right is given exclusively to the plaintiff, then it might happen in case of the postponement of the questions issue until that date, that the city of New Orleans would be left in darkness for a time for want of the necessary preparations on the part of the lawful agent of the State to make it. We therefore conclude that the exception, that the petition discloses no cause of action, can not be maintained.

We now come to the question : Is the act oí first March 2860, extending the charter of the New Orleans Gaslight Company, as now established bylaw, from first April, 1875, uutil first April, 1895, repugnant to the articles 115 and 116, constitution of 1852, requiring the object of every law to be expressed in the title, and prohibiting the amendment of a law by reference to its title.

The title is: “An Act to extend the area of gas lighting in the city of New Orleans and to reduce the price now paid by consumers.”

Section one provides : “ That the charter of the New Orleans Gaslight Company, as now established bylaw, shall remain in full force and effect until the first day ot April, 1895; provided that nothing contained in this act shall be construed so as to continue the exclusive privilege granted to said company beyoml the1 period fixed by its present act of incorporation.” * * * It also contains clauses reducing the price of gas to $4 per one thousand cubic leet, and requiring within three years the said company to lay down nod less than fifteen miles of main pipes through the four districts of the city, according to their respective wants, and also requiring it to lay down, free of charge, the main pipes necessary for lighting the levee or river front of the city whenever required to do so by the Common Council.

Section two provides: “That the New Orleans Gaslight Company shall have the power to increase, from time to time, the capital stock of said company, as the board of directors may determine, to an amount which shall not exceed one million of dollars.”

Section three provides that the act shall not take effect until it is accepted by not less than two-thirds of the stockholders. The object of the act was doubtless to give the defendant an extension of its charter for twenty years from first April, 1875, and that really was the grant made by the State) the motive or inducement for making it being the advantage contemplated to accrue to the people of New Orleans by having gas extended over a greater area, and supplied to them at a cheaper rate. This object is not embraced in the title. No hint or clue is given ; nothing is suggested in the title indicating the purpose to prolong the period of duration of the charter of the New Orleans Gaslight Company, which iiad not then expired by fifteen years. The company is not named in the title.

The purpose to extend the charter of the New Orleans Gaslight Company for twenty years ftom the first April, 1875, is no more disclosed in the title — “An act to extend the area of gaslighting in the city of New Orleans, and to reduce the. price now paid by consumers,” than the purpose to create a new corporation for making and vending of gas is indicated therein. And who doubts that the area of gaslighting could be extended, and the rate of selling it be reduced, as well by creating one or several new corporations to operate gas works and to compete in carrying on the business? Yet,'if under this title one or several corporations had been created for the purpose of operating gas works for twenty years, or for any period, could it be said that such a purpose, the creation of a corporation, was disclosed in the title 1 And the prolonging of defendant’s corporation for twenty years, virtually gives it a new charter for that period. Moreover the title is deceptive, and calculated to mislead the mind from the true object of the statute. No member of the General Assembly at the time the bill was about being passed, on hearing the title read, would have supposed that its object was to obtain from the State a grant extending the charter of the New Orleans Gaslight’ Company for twenty years, or until first April, 1895. A member who would object to extending the charter, might readily consent to a reduction of the price of gas and to the extension of the area supplying it. We therefore conclude that the act of March 1, 1860, extending the charter of the New Orleans Gaslight Company, as now established by law, until the first day of April, 1895, is repugnant to article 115 of the constitution of 1852, then in force, and is therefore void. 4/An. 298; 5 An. 96; 23 An. 720; Cooley on Limitations, 141, 150; 14 Indiana 195; Adams v. Webster, and Morrison v. Larkin, 26 An. 699.

It is urged, however, that whether the act of 1860 is constitutional or not,it was a contract that has baen duly accepted by the parties; that the defendant in performance of the requirement thereof has extended the area and reduced the price of gaslights in the city of New Orleans.; that the State, after receiving the benefits of the contract, can not deny the validity thereof; and that the plaintiff, the grantee of the State, is estopped by the act of its grantor from disputing the rights of the defendant, arising under said statute. This argument is unsouud. The defendant was charged with notice that the Legislature was prohibited from passing an act or granting a charter in contravention of article 115 of the constitution; and the statute in question, passed in violation thereof, was utterly void from the beginning.

If the statute was void, the grant therein to the defendant, prolonging its charter for twenty years, was invalid; and no subsequent act of its own could cure the infirmity or operate an extension of its charter, because a creature can not be its own creator. And no act of the General Assembly could cure the defect or prolong the charter, unless done in the manner prescribed by the constitution and not in violation thereof.

Nothing but a valid statute of the State could confer the grant extending the charter of the defendant until 1895 ; and as before remarked, the act of March 1, 1860 being unconstitutional, was utterly void from the beginning. Cooley’s Constitutional Limitations, 188; 25 Missouri 341; 2 Dal. 308; 1 Crunch 137; 5 M. 581; 3 Allen 407; 29 Missouri 593; Marsh v. Fulton County, 10 Wal. 677; 3 An. 295; Dillon on Municipal Cor., 2d ed. sec. 17; 22 An. 402 ; 5 Mason 441; 4 Cal. 51; 10 Iredell 112; 4 Hawkins 132; 1 Sum. 278; State ex rel. Smith v. Dubuclet, State Treasurer, 23 An. 267.

We come now to the question whether the acts incorporating the plaintiff’s company and conferring on it the sole and exclusive right to make and vend illuminating gas in the city of New Orleans for fifty years, from first April, 1875, are repugnant to article 114 of the constitution of 1868, then in force, requiring the object or objects of every law to be embraced in the title. And here the main objection is as to the title of the act of twentieth April, 1870; that its title, an act to incorporate the Crescent City Gaslight Company,” does not cover the monopoly contained in the eighth section thereof; that there is nothing in it indicating the purpose to grant the sole and exclusive privilege to make and vend gas in the city of New Orleans for fifty years from first April, 1875. To this the plaintiff replies that under a similar title, a monopoly of the same kind was granted to the defendant in the charter of 1835, which was recognized by this court in the case of Paulding, 12 Rob. 378, and which has been enjoyed by the defendant for nearly forty years, without its validity having been questioned by any one. But the object of the act, as stated in the title, was “ to incorporate the Crescent City Gaslight Company.” To incorporate a. company is to create it with certain powers and privileges; those powers and privileges need not be detailed, for if they were, the title would be as long as the act. The title of the act disclosed the creation of a gas company ; this was sufficient to cover the monopoly or exclusive privilege to make and vend gas.

The precise question was before this court in The Louisiana Lottery Company vs. Richoux, et al. 23 An. 743, and also in the State ex rel. Belden vs. Fagan, 22 An. 546, where it was held, that an exclusive privilege or monopoly could be granted under the usual title to incorporate a company. And in these decisions it was held, that the State could create a monopoly; that it could give the Crescent City Slaughterhouse Company the exclusive privilege to keep a slaughterhouse; and, that it could confer on the Louisiana Lottery Company the exclusive privilege to sell lottery tickets.

However odious monopolies may be, the sole question for the court to determine in this case is, had the Legislature the power under the constitution, to grant the plaintiff the sole and exclusive right to manufacture and sell illuminating gas in the city of New Orleans for fifty years ? If they had the power, they can not beeontrolled by the judicial department in the exercise thereof, however unwisely they have chosen to employ it. Their responsibility is not to the court, but to the people, whose agents they were,.for this unwise, unfair and arbitrary exercise of the power of legislation confided to them. In its own sphere, the legislature is supreme, except when restricted by the constitution of this State or of the United States. 9 R. 411; 9 An. 562; 11 An. 308, 338, 370; 12 An. 169, 554. See also 16 Wal. 36.

Now, what clause of these constitutions has been violated in thecase at bar? Is the bill of rights : all persons “shall enjoy the same civil, political and public rights and privileges, and be subject to the same pains and penalties,” in any manner invaded ? Is “life, liberty, or the pursuit of happiness” of any person in the city of New Orleans, assailed by the statute, granting the sole and exclusive privilege to plaintiff to operate gas works in New Orleans for fifty years ? The right to operate gas works and to illuminate a city, is not an ancient or usual occupation of citizens generally. No one has the right to dig up the streets and’ lay down gas pipes, erect lamp posts and carry on the business of lighting the streets and the houses of the city of New Orleans, without special authority from the sovereign. It is a franchise belonging to the State and in the exercise of the police power, the State could carry on the business itself, or select one or several agents to do so. And, as the legislature had the right in 1835, to grant the sole and exclusive privilege to the defendant company to make and vend gas in New Orleans for forty years, the legislature of 1870, had the same power to confer on the plaintiff the same privilege for fifty years from the termination of the grant to defendant. We therefore conclude that the grant of the monopoly complained of, does not violate the constitution and is valid. 22 An. 553; 16 Wallace, 36; 23 An. 743. See also Corfield vs. Coryell, 4 Wash. C. C. Rep. page 380; also, Dillon on corporations, sections 546, 549.

We come now to consider the rights of the intervenors. Without going into details, we conclude that the State intervening, not to setup some separate right of its own, but solely for the purpose of upholding the rights of the plaintiff against the defendant, in regard to a franchise granted by itself, has no interest whatever in the controversy, and the court below did not err in dismissing its intervention.

In regard to the intervention of the city of New Orleans, we will remark, that the right reserved by the State for it to become the purchaser of the gas works, fixtures, machines, pipes etc., atthe expiration of the charter of the defendant, was not such a vested right that the State could not withdraw or recall, without contravening that provision of the constitution of the United States, prohibiting a State from impairing the obligations of a contract. Conceding that the authority given to the city, if she saw fit, at the expiration of defendant’s charter, to purchase the gas works, by implication conferred authority to operate said works, the State had the right to recall or withdraw the authority, as it did in the act of 1870, before the time for using the authority arrived. And the grant of the sole and exclusive privilege to plaintiff to make and vend gas, is utterly repugnant to the right of any other person or corporation to make and vend gas in New Orleans. And, this grant by implication, revoked or recalled any previous authority given the city to buy the gas works of the defendant on the first of April, 1875, for the purpose of making and vending gas.

The powers and privileges granted by the State to the city of New Orleans, and other political corporations used in the administration of government, may be recalled or modified by the legislature at pleasure. And in doing so they violate no contract protected by the constitution of the United States. Impressed with this view of the law, this court in 1850, in the case of the police jury of Bossier parish vs. corporation of Shreveport, 5 An. 664, decided that the act of twentieth of March, 1839, incorporating the town of Shreveport, and giving the municipal authorities exclusive right to establish ferries across Red river, did not create a contract or vested rights in that corporation which the legislature could not constitutionally change or annul.”

And this doctrine was reaffirmed by this court in the case of Marks vs. The Town of Donaldsonville, 24 An. 242. See also, the case of Layton vs. City of New Orleans, 12 An. 515. Dillon on Corp. 2d ed. 37, 40; 11 Peters, 539; 3 How, 534. We therefore conclude that the intervention of the city of New Orleans can not be maintained.

It is therefore ordered that the judgement herein be set aside and annulled and it is decreed, that the plaintiff, the Crescent City Gaslight Company, has the sole and exclusive right to make and sell illuminating gas in the city of New Orleans, for fifty years from first April, 1875 ; that the act of March 1, I860, extending the charter of the defendant, the New Orleans Gaslight Company, from first April, 1875, until first April, 1895, is unconstitutional and void; and that the defendant be injoined and inhibited from settingup any claim thereunder or from attempting to carry on the operation of gas works or the business of making and vending gas after first April, 1875, or from, in any manner, impeding the plaintiff: from the full enjoyment of its franchises, rights, and privileges, arising under the acts of April, twenty, 1870, and July 10, 1873. It is further ordered, that the intervention of the State be dismissed with costs, and the demand of the intervenor, the city of New Orleans, be rejected with costs of its intervention. It is further ordered, that the defendant pay costs of both courts.

Howell, J. Absent.


author: Howell, J.

text:
    No. 5388.
    J. Davidson & Hill v. Thomas B. Bodley, Norwalk Iron Works, Intervenors.
    The note sued upon having "been given subsequently to the date of a written contract and identified therewith in its own terms, it was proper to permit parol evidence to show the settlement or agreement under which it was given. The plaintiffs are not enforcing the written contract in all its parts, but suing on the note given in connection with said contract, yet for a sum different from that named in the contract. The note is evidence of a change in the sum first agreed on, and is binding on defendant in the absence of error or fraud.
    The defendant being the agent of the intervenors and not their factor in the purview of the-law invoked by them, and having had the possession and control of the machinery delivered to them, and having pledged it to plaintiffs, who are not shown to have known, that it belonged to intervenors, the pledge must be sustained. The intervenors put it in the power of the defendant to make such use ot the machinery, and they must bear the loss, if any. The principle which sustains the pledge as collateral, which is placed in the hands of a broker to sell, must apply here.
    APPEAL from the Second District Court, parish of Orleans.

      Tissot, J.

      B. B. Borman, Ogden & Bill, for plaintiffs and appellees. Bornor & Benedict, B. N. Balcer, for defendant and appellant. Bellows & Mills, for intervenor and appellant.
   Howell, J.

Plaintiffs sue on a note given by defendant for one-half of advances made by the former in excess of or beyond what was repaid from a certain source, under a contract for raising a stranded vessel. The defense is failure of consideration and release of liability by the raising of said vessel, an event, by the happening of which, it is alleged, the defendant would not be liable.

A contract was entered into between the agents of Chailes Morgan and one John Hallidav, by which the latter was to raise a stranded vessel for a stipulated sum. Another contract was made between the plaintiffs and defendant, by which the latter bound himself to pay one-half of a fixed sum, advanced by the plaintiffs beyond the amount received from the Halliday contract. This sum was subsequently increased, and before the vessel was raised, and while it seemed uncertain whether it would be, these parlies came to an understanding as to the amount of the excess advanced by plaintiffs for the object of the original contract, and the note in suit was given by the defendant for his portion. The evidence by parol to show this was objected to on the ground that no new verbal agreement was alleged, and the written contract was limited to a less sum. The note having been given subsequently to the date of the written contract and identified therewith in its own terms, it was proper to permit evidence to show the settlement or agreement under which it was given. The plaintiffs were not enforcing the written contract in all its parts, but suing on the note given in connection with said contract, yet for a sum different from that named in the contract. The note is evidence of another change in the sum first agreed on, and is binding on defendant in the absence of error or fraud, which is not shown.

The Norwalk Iron Works intervened, claiming the ownership of certain machinery pledged by defendant to plaintiffs to secure said advances, and have appealed from a judgment against them. The evidence shows that the defendant was their agent to sell the machinery, consigned by them to him, and that he sent machinery to various points, to be sold for cash or on credit, and settled with intervenors for such sales. He was their agent and not their factor in the purview of the law invoked by them, and having had the possession and control of the machinery in question, and having pledged it to plaintiffs, who are not shown to have known that it belonged to intervenors, the pledge must be sustained.

The intervenors put it in the power of the defendant to make such use of the machinery, and they must bear the loss, if any.

The principle which sustains the pledge of a note as collateral, which is placed in the hands of a broker to sell, must apply here.

It is therefore ordered that the judgment appealed from be amended by changing the amount as against the succession of the defendant from $2000 to $2501 15, with five per cent, interest from eighteenth March, 1872, and as thus amended it be affirmed with costs.

Rehearing refused.


author: Taliaferro, J.

text:
    No. 5371.
    Successions of John and Mary Trainor.
    This is a suit to force compliance with the terms of adjudication of property. The defense is want of title in the seller, the administrator of the Trainor estate. Trainor "bought the lot about which the dispute is as to title, at a tax sale made in August, 1860, at the suit of the city of New Orleans, for city taxes. The sale was made under the provisions of the act No. 85 of the session of 1858, and act No. 175 of 1859, additional thereto. The provisions of these acts not having been complied with in the tax sale, it follows that the evidence does not establish a valid title in the succession of Trainor.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      Gilmore & Sons, for plaintiffs and appellants. Alfred Grima, for respondent and appellee.
   Taliaferro, J.

The administrator caused property of the estate to be sold. John Hearne, the defendant in this suit, bought three lots of ground, with the buildings and improvements upon them. The terms were cash in hand; these lots were separately adjudicated to him at the price of $1000 each. Failing to comply with the terms of sale, a rule was taken upon him to show cause why the property should not be sold at his folie enchere. He set up in his defense that, as to one of the lots the succession was without valid title, and could not confer a title on him; that the other lots were so situated that the buildings on the rear part of them were inaccessible from the street, except by an alleyway taken off one side of the lot to which the estate had no title, and as his inducement to bid for the rear lots was, that the buildings upon them could be used by means of the alleyway leading to the street, they would be of no practical use to him if deprived of the first or front lot by the true owner. On trial of the rule judgment was rendered in the defendant’s favor, and the administrator appealed.

Trainor, it appears, bought the lot about which the dispute is as to the title, at a tax sale made in August, 1860, at the suit of the city of New Orleans for city taxes. The record of the tax suit in which the property was sold was introduced in evidence. The sale was made under the provisions of the act No. 85 of the session of 1858, and act No. 175 of 1859, additional thereto. The second section of the act No. 85 of 1858 provides : “That the tax receipt or receipts of each delinquent tax payer shall, after the expiration of thirty days’ publication referred to in the preceding sections, be severally stamped by the city treasurer with the words ‘published according to law,’ and shall from that time become an executory process against the party owing the tax, •on which it shall be the duty of any judge of competent jurisdiction, as soon as applied to, to enter up judgment and grant a writ of seizure and sale against the property, * * * as in all other cases of seizure and sale provided for by the laws of the State.” The tax bill does not show the placing upon it of the treasurer’s stamp. The tax receipt was made out in the name of “Widow Lanahan,” and the suit was brought against her. The notice of service is also addressed to Widow Lanahan, and the sheriff returned it with service made on “Peter Leslie, tutor of the minor heir of Widow Lanahan, deceased.”

On the- part of the administrator it is answered, that the tax sale was in the nature of a proceeding in rem, and the regularity of the proceedings is presumed by law; that the sale could only be impeached by direct action of nullity at the suit of the party aggrieved, in which restitution of the price and the value of the improvements would be a ■condition precedent to the maintenance of the action, referring to Barelli v. Gauche, 24 An. 324, and Shields v. Lafon, 7 An. 135-6. It is shown on the part of the administrator that Trainor was in uninterrupted possession of the lot in question from the day of the sale to the time of his death, a period of fourteen years. Lastly, it is contended that the act of 1873, No. 101, relieves all purchasers of real estate sold at public auction to satisfy judgments for State, parish or municipal taxes, and renders valid and perfects their titles after judicial possession of the property purchased for two years under deed of sale duly recorded.

We are of the opinion that the evidence does not establish a valid title in the succession of Trainor, and that the judgment of the lower court should be affirmed. See case of Dupre v. Thompson, sheriff, et al., and cases there cited, 25 An. 504.

It is therefore ordered that the judgment appealed from be affirmed' with costs.

Rehearing refused.


author: Wyly, J.

text:
    No. 3255.

      E. W. Burbank v. C. A. and L. L. Conrad.
    As Charles M. Conrad was an offender of a class mentioned in the act oí Congress of the seventeenth of July, 1862, entitled an act to suppress insurrection, etc., this statute authorized the confiscation of his property, or the condemnation and sale thereof for the period of his life. By the decree of condemnation of the third of February, 1865, only such right or title as the said offender had, passed to and vested in the United States, and this was the title conveyed to plaintiff by the Marshal’s sale on the twenty-ninth of March, 1865.
    But Conrad, at that time, had no title to the property, having sold it to the defendants by notarial act in the parish of St. Mary, on the third of June, 1862, not only prior to the seizure, but anterior to the passage of the confiscation act itself, although the act was-registered only in 1870 in the parish of Orleans, where the property is situated. Hence the United States acquired no title and could not convey any to plaintiff.
    In regard to the property confiscated, the position of the United States was not that of a. third party dealing with Conrad on the faith of the title standing in his name on the publio records, or that of a bidder at a judicial sale, who is induced to buy the property standing on the public records in thename of the defendant in execution.
    The failure of defendants to record their title in the parish of Orleans as required by the. registry laws of the State, subjected them to .the risk of losing it, if seized by a creditor of their vendor, or if sold or hypothecated by him to an innocent third party. But the title of the property was nevertheless in them from the time of the sale, and neither their vendor nor his heirs could recover it from them.
    As to the United States it was immaterial whether defendants had recorded their title or not; the property in question belonged to them and their title was not impaired by the proceedings under the act of July 17,1862, instituted to confiscate the property oí Charles M. Conrad for offenses committed by him. The defendants were not parties to these proceedings and their title to the property could not be divested by the decree of condemnation.
    APPEAL from the Fifth District Court, parish ot Orleans. Leaumont, J.

      Fellows & Mills, for plaintiff and appellee. C. M. Conrad, for C. A. Conrad, defendant and appellant. C. A. Conrad, curator ad hoc, for L. L. Conrad, defendant and appellant.

      Carried l)y •writ of error to the Supreme Court of the United States.

   Wyly, J.

The plaintiff who purchased an undivided half of a warehouse and lot on Julia street, at a sale made by the marshal under a writ of venditioni exponas, issued by the United States District Court in the confiscation proceedings of the United States v. Ten Lots of Ground alleged to be the property of Charles M. Conrad, brought this-suit against the defendants, the owners of the other half of said property, for a partition thereof. Alleging that said property can not be divided in hind without deterioration of value, he prays for a partition by licitation.

The court rendered the judgment prayed for, and the defendants appeal.

Several interesting questions are presented in this case. One is: Assuming that the plaintiff bought at said sale, and the property so acquired belonged to Charles M. Conrad at the time it was condemned by decree of the United States District Court, under proceedings based on the act of July 17, 1862, commonly known as the confiscation act, did the estate so acquired confer on the plaintiff the right to demand of the defendants, who are admitted to be the owners of the other half of the property, a partition by licitation 1

In other words, did the title acquired under said confiscation proceedings (which have frequently been held only to convey the life estate of the party accused) give the plaintiff the right to demand of the defendants, the admitted co-proprietors, the sale of the thing held in common, and a division of the proceeds ?

•Another, and the most important question in the case, is: Did the decree of condemnation and the sale by the marshal convey any title whatever to the plaintiff in and to the undivided half of said property, in view of the fact that prior to said confiscation proceedings, and prior to the act of July 17, 1862, authorizing it, Charles M. Conrad had by notarial act in the parish of St. Mary, on the third June, 1862, sold and conveyed said property to the defendants, the deed, however, although recorded in the parish of St. Mary, not having been registered in the parish of Orleans until long after said confiscation and sale ?

As the view we have taken of this quesbiot^will dispose of the case, we will confine our investigations to it.

And here we will remark that the act of July 17, 1862, “An Act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes,” was not intended to confiscate the property of rebels generally; but its operation was expressly confined to the property of persons of the class mentioned in the fifth and other sections; it was only the property of such persons that the act proposed to confiscate. The language is, “that to insure the speedy termination of the present rebellion, it shall be the duty of the President of the United States to cause the seizure of all the estate and property, money, stocks, credits and effects of persons hereinafter named in this section, and to apply and use the same, and the proceeds thereof, for the support of the army of the United States.”

• As Charles M. Conrad was an offender of a class mentioned, the statute authorized the confiscation of his property, or the condemnation and sale thereof for the period of his life. Bigelow v. Forest, 9 Wal. 347.

By the decree of condemnation of the third of February, 1865, only such right or title as the said offender had passed to and vested in the United States, and this was the title conveyed to the pi lintiff by the marshal on the twenty-ninth March, 1865. But Conrad at that time had no title to the property, having sold it to the defendants by notarial act in the parish of St, Mary, on the third of June, 1862, not only prior to the seizure, but anterior to the passage of the confiscation act itself. When this law was brought to bear against Charles M. Conrad, the object was to punish an offense committed by him subsequent to the enactment thereof, and the penalty was to vest in the United States the property of the offender during the period of his life.

The confiscation of the property in question was not intended by the law, for it could inflict no punishment on'Conrad, the alleged offender, because for a valuable consideration he had already sold it to the defendants, and as between the parties, without registry, the sale was perfect from the time of the execution thereof. Revised Code, 2456.

In regard to this property the position of the United States was not' that of a third party dealing with Conrad on the faith of the title standing in his name on the public records, or that of a bidder at a judicial sale who is induced to buy the property standing on the public records in the name of the defendant in execution.

The failure of defendants to record their title in the parish of Orleans, as required by the registry laws of the State, subjected them to the risk of losing it, if seized by a creditor of their vendor, or if sold or hypothecated by him to an innocent third party. But the title of the property was, nevertheless, in them from the time of the sale; and neither their vendor nor his heirs could recover it from them. If he was honest and owed no debts their title was safe; if the purchasers wished to avoid these contingencies, a compliance with the registry laws of the State would have given them ample protection.

As to the United States, it was immaterial whether the defendants had recorded their title or not; the property in question belonged to them, and their title was not impaired by the proceedings under the act of July 17, 1862, instituted to confiscate the property of Conrad for offenses committed by him.

Assuming the theory of the plaintiff to be true, that the United States occupied the position of a third party in the sense of the statute and jurisprudence of this State, and therefore the failure of the defendants to comply with our registry laws subjected the property in question to the decree of condemnation as the property of Charles M. Conrad, the effect will be that the plaintiff will hold it during the life of the offender, and then it will not pass to his heirs as the law of July 17, 1862, contemplates. It can never pass to the heirs of Charles M. Conrad, because heirs can only inherit what belonged to the deceased, and by succession they only succeed to his property. The property in question passed out; of Charles M. Conrad when the notarial act of June 3, 1862, was executed, and this act will be binding on his heirs whether recorded or not; but the deed was recorded in the parish of Orleans on the eighth December, 1870.

The fee or title of the property is beyond doubt in the defendants, and was at the time of the confiscation proceedings and before; and when the life estate of Charles M. Conrad owned by the plaintiff (if, under the circumstances, such could exist), is carved out, or has terminated, the defendants will recover the property not as heirs, but as vendees of Charles M. Conrad. And the anomaly presented is, that the plaintiff, claiming the life estate of Charles M. Conrad by virtue of the proceedings and sale under act of July 17, 1862, here sues the defendants, in whom the fee or title of the property is vested, for a partition by licitation; that is, for a sale of the thing and a division of the proceeds. And this life estate, assimilated by this court to the servitude of usufruct under our law, is fixed as the property in question in a proceeding to which its owners, the defendants, were not parties.

To fix this servitude on the property, of what avail was it that Charles M. Conrad was constructively before the court at the time of the decree of condemnation ? He was not the owner. Its condemnation did not affect him, even as a warrantor. It was the defendants alone who could be affected by the forfeiture of the property, and as they were not parties to the proceedings, their title to the property was not divested by the decree of condemnation. And the plaintiff, in buying from the marshal, was not in the position of a bidder at a sale under execution for property standing on the public records in the name of the defendant in execution.

He is charged with notice of the character of the decree under which the sale was made, that it was a confiscation sale, and he was bound to know its legal effect. Bigelow v. Forrest, 9 Wal. 347. He bought only the title of the United States, which was not valid as regards the defendants. Our conclusion is, that the property in question belongs to the defendants, and the plaintiff has no right to demand a partition thereof.'

It is therefore ordered that the judgment herein be set aside and annulled, and it is decreed that plaintiff’s demand be rejected, and that the defendants have a valid title to the property described in the petition, and that they be put in possession thereof.

. It is further ordered that plaintiff pay costs of both courts.

Rehearing refused.


text:
    No. 5151.
    City of New Orleans v. Pierre Cazelar.
    The title to tlie act No. 7 of the extra session of 1870, is sufficiently expressive of its objects and purposes to indicate the intention of establishing a new city charter, and, as a consequence, the prescribing of the city limits or boundaries.
    Cities may properly be extended in their boundaries as need or convenience may require. The extension of their boundaries may, as in the present case, include rural districts, the condition of which is very materially different from the character of city property.
    Taxation must be equal and uniform, but the ascertainment of the proper standard of valuation to form the basis of taxation is well nigh insurmountable. It is at least a difficulty that is never clearly and satisfactorily removed.
    The principle is well settled and the doctrine established, that a Legislature may, without the infringement of constitutional rights, extend the boundaries of a city and embrace new territory, but that it is without power to authorize the city to levy any other than a uniform and equal tax on all property alike.
    The tax in dispute in this case has been imposed since the city charter of 1870, which makes it the duty of the City Council to lay an equal and uniform tax upon all real and personal property in said city.
    From these well settled principles and the law applicable to this case, it must be concluded that the objections urged against the constitutionality and legality of the tax in question are untenable.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      G. S. Lacey, city attorney, for plaintiff and appellant. O. F. Schmidt, for deiendant and appellee.
   Taliaferro, J.

The city of New Orleans claiming from the defendant taxes to the amount of $405, he refuses to pay them on constitutional grounds, alleging that the act of the Legislature, approved March 16, 1870, entitled “An Act to extend the limits of the parish of Orleans,” etc., approved March 16, 1870, being act No. 7 of the extra session of 1870, as well as the act amending the same approved March 13, 1871, upon which the city bases its right to tax his property is, so far as relates to the power and right set up to impose the tax sought to be enforced against him, unconstitutional and void.

First — Because the object and purpose of the Legislature to extend the limits of the city of New Orleans, so as to embrace therein the entire area and territory ot the parish of Orleans, and so as to bring within the limits of said city that portion of said parish in which the property of the respondent is situated, is not expressed in the title of either of the aforesaid acts, as required by article 114 of the State constitution.

Second — Because the said property of respondent is not city property, but is partly vacant land and partly a cultivated farm occupied by respondent for agricultural purposes, and is not required for either streets or houses or other purposes of a town or city, and by the aforesaid legislative act No, 7 of the extra session of 1870, the said property has been brought within the taxing power of the city of New Orleans by an enlargement of its limits, solely for the purpose of increasing its revenues; that legislation of this kind is the taking of private property and the divestiture of vested rights without compensation, and is violative of article 110 of the State constitution and of article 5 of the amendments of the constitution of the United States.

On trial of the case in the lower court there was judgment in favor of the defendant, and the plaintiff appealed.

We think the title to the act No. 7 of the extra session of 1870 is sufficiently expressive of its objects and purposes to indicate the intention of establishing a new city charter, and, as a consequence, the prescribing of the city limits or boundaries.

Under the second branch of the defense the defendant’s counsel reopens the discussion of questions that have given rise to great diversity of opinion, and it must be confessed have also presented to the legislator problems of intricacy and difficulty that he has never yet lucidly and satisfactorily solved. He has had to deal with a species of Glordian knot, for the untying of which we may probably suspect he was compelled to the use of the sword. The condition of humanity, it has been found, is such that while it renders the formation of society, and the living in communities under laws a source of inestimable benefit, yet from this same source from which blessings and advantages flow, come also along with them evils and vexations of the gravest character. The case before us presents an example. The defendant’s property is essentially a rural estate. It is situated several miles distant from the outskirts of the city; part of his lands are of the original forest, uncultivated and yielding no revenue. Cities may properly be extended in their boundaries as need or convenience may require. The extension of their boundaries may, as in the present case, include rural districts, the condition of which are entirely different from the character of city property. Taxation must be equal and uniform. The ascertainment of the proper standard of valuation to form the basis of taxation is well nigh insurmountable. It is at least one that is never clearly and satisfactorily removed. The rural estates brought within the corporate limits of the city, it is argued, are endowed with advantages they did not possess before, and as an equivalent for the city advantages conferred, they should bear their proportion of the expenses that secure those advantages. But the equivalent in such a case is conjectural and never is settled upon by a concurrence of opinion even among those best qualified to determine the question.

But the principle is well settled and the doctrine established, that a legislature may, without the infringement of constitutional rights, extend the boundaries of a city and embrace new territory, but that it is without power to authorize the city to levy any other than a uniform and equal tax on all property alike. In Cooley’s Constitutional Limitations, p. 504, second edition, it is written that “ Whenever the corporate boundaries are established, it is to be understood that whatever property is included within those limits has thus been included by the Legislature because it justly belongs there, as being within the circuit which is benefited by the local government, and which ought, consequently,to contribute to its burdens. The Legislature can not, therefore, after having already, by including the property within the corporation, declared its opinion that such property should contribute to the local government, immediately turn about and establish a basis of taxation which assumes that it is not in fact urban property at all, but is agricultural lands and should be assessed accordingly.”

The tax in dispute in this case has been imposed since the city charter of 1870, which makes it the duty of the City Council “to lay an equal and uniform tax upon all real and personal property in said city.” Prom these well settled principles, and the law applicable to the case, we conclude that the objections urged against the constitutionality and legality of the tax in question are untenable.

It is therefore ordered that the judgment appealed from be annulled and reversed.

It is further ordered that the plaintiff recover from the defendant the sum of four hundred and five dollars, the amount of tax sued for, with ten per-cent, interest thereon from the thirty-first day of July, 1873, until paid, with all costs of suit.


text:
    No. 5514.
    Wm. G. Wilmot et als. v. The City of New Orleans et al.
    In tilia instance a writ of injunction was issued by the Superior District Court, at the suit of plaintiffs, restraining the city of New Orleans from enforcing any claim against them for pretended levee dues, wharfage or port charges, and prohibiting W. L. Evans, a justice of the peace, from futther proceeding in certain specified cases pending before his court.

      Art exception was correctly taken to the jurisdiction of the Superior District Court. The constitutionality of the tax imposed by the city being in question, an appeal lay directly from the justice’s court to this coart. The city had the right to bring those suits before the tribunal having the proper jurisdiction of them.
    APPEAL from the Superior District Court, parish of Orleans. Eawlcins, J.

      Fellows & Mills, for plaintiffs and appellees. Sam. P. Blame, assistant city attorney, for defendants and appellants.
   Taliaferro, J.

The plaintiffs, who are extensive dealers in coal, complain that they have been harassed by vexatious and illegal suits instituted against them by the city before a justice of the peace, for the purpose of compelling them to pay illegal exactions called “levee dues,” which it is pretended the plaintiffs are-bound to pay for landing and mooring their coal boats along the shore- of the river above the limits of the city of Jefferson, where there are no wharves or facilities of any kind provided by the city of New Orleans for the landing or unlading of vessels or boats of any kind. The plaintiffs applied to the Superior District Court for a writ of injunction, restraining the city fron; enforcing any claim against them for pretended levee dues, wharfage or port charges, and that William L. Evans, second justice of the peace, be prohibited from further proceeding in certain specified cases on the docket of his court, and pending therein against the plaintiffs to enforce said claims. The writs of prohibition and injunction prayed for were granted. Citations were issued to the proper officers of the city; and the city, by its attorney, filed an exception and answer. The exception is that the petition discloses no cause of action, and that the court is without jurisdiction to issue the injunction. The answer avers the right to collect the dues sued for, and prays judgment dissolving the injunction with damages. There was judgment in favor of the plaintiffs as prayed for, and the defendants have appealed.

We think the exception well taken. The constitutionality of the tax imposed by the city being in question, an appeal lay directly from the justice’s court to this court. The city had the right to bring those suits before the tribunal having the proper jurisdiction of them. 4 An. 11; 11 An. 696; 14 An. 505.

It is therefore ordered that the judgment appealed from be annulled and reversed.

It is further ordered that the injunction sued out in this case be dissolved and the case dismissed at plaintiffs’ costs.

Rehearing refused.


author: Morgan, J.

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    No. 3609.
    Spalding v. City of Jefferson, and Purdon v. The City of New Orleans et als.—Consolidated.
    The city is not responsible for the damages which may result to one of its officers when in the discharge of his duty. It is a risk which he'runs when he accepts the position.
    APPEAL from the Eighth District Court, parish of Orleans. Bcm-Idns, judge ad hoc in the case of Spalding v. City of Jefferson.

      B. If. Butler and W. H. Rogers, for plaintiff and appellant. Rufus Waffles, assistant city attorney for the city of Jefferson, defendant and appellee. Dibble, J., in the case of Purdon v. the city of New Orleans. Rogers and Blanc, lor plaintiff and appellant. S. H. Walsh, assistant city attorney, for the city of New Orleans, defendant and appellee. Bellotes & Mills, for the other defendants than the city.
   Morgan, J.

Plaintiffs were members of the Metropolitan Police force. In the discharge of their duty they were sent into the then city of Jefferson.

They allege that they were fired upon by an armed body of men, who, they aver, were authorized so to do by the authorities of the city of Jefferson, and were grievously wounded.

They aver that the authorities of the city of Jefferson having countenanced this attack upon them, the city is responsible for the damages which were inflicted upon them.

That they were wounded, and that their sufferings were great, is well established. But we do not think the city responsible for the damages which may result to one of its officers when in the discharge of his duty. It is a risk which he runs when he accepts the position.

Judgment affirmed.

Rehearing refused.


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    No. 5349.
    Payne, Dameron & Co. v. Eaton & Barstow—E. J. Gay & Co., Third Opponents.
    The third opponents in this ease attempt to regulate the effect of a seizure by a creditor with special mortgage and vendor’s privilege, in what relates to them or their junior mortgage, eighteen months after the seizure had been released, the sale consummated, and the funds distributed. This is an extraordinary proceeding. There is no longer any ground for a third opposition to stand upon. The exception that there is no cause of action is well taken.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      Breaux, Benner & Hall, for plaintiffs and appellees, liandolph, Singleton & Browne, for defendants. A. & W. Yoorldes for third opponents and appellants.
   Wyly, J.

The plaintiffs, the holders of a note of the defendants for $10,000, secured by special mortgage and vendor’s privilege on a plantation in the parish of St. Landry, foreclosed the mortgage via ordinaria, and on the seventh of September, 1872, the sheriff of St. Landry parish sold thereunder said plantation to Elbert Gantt (from whom the defendants had bought it) for $20,735, of which $865 48 was applied to payment of taxes and costs, and the balance was distributed as follows: $1912 63 was applied in part satisfaction of a writ issuing from the district court, parish of St. Landry, under a judgment on a note of concurrent rank and secured by the same mortgage; $8897 68 was applied in part satisfaction of the writ under which the sale was made; and the balance, $9056 20, was retained by the purchaser to be applied in part satisfaction to an outstanding note secured in the same mortgage for ten thousand dollars, due aDd payable on the first of January, 1873.

Eighteen months after the sale and distribution of the funds, as aforesaid, Edward J. Gay & Co. filed in this suit a paper which they term a third opposition, wherein alleging that they hold a mortgage, second in rank to the one under which the sale was made, for $4371 78, and alleging that the outstanding note of ten thousand dollars (for the part payment of which the $9056 20 had been retained by the purchaser) is not valid because the plea of failure of consideration, lies against it; they pray that Payne, Dameron & Co., and Elbert Gantt be cited to show cause why they (Edward J. Gay & Co.) should not be paid the amount of their second mortgage, to wit: $4371 78 out of said $9056 20 retained by the purchaser, Elbert Gantt, to pay said note of $10,000.

In bar of this third opposition the defendants therein, Payne, Dameron & Co. and Elbert Gantt, pleaded the following exceptions:

First — The prayer of the petition of opposition is not in accordance with the requirements of article 171 C. P., because it does not pray that these defendants “may be ordered to do or to give a certain thing.”

Second — Because the petition sets forth no cause of action on which a third opposition will lie.

Third — Because the court is without jurisdiction of Gantt, who resides in the parish of St. Landry. The court dismissed the opposition, and Edward J. Gay & Co., plaintiffs therein, have appealed.'

We think the court did not err in its conclusion.

A third opposition “is a demand brought by a third person not originally a party to the suit, for the purpose of arresting the execution of an order of seizure or judgment rendered in such suit, or to regulate the effect of such seizure in what relates to him.” C. P. 395, “ Such opposition may take place in two cases:

First — “When the third person making the opposition pretends to be the owner of the thing which has been seized.

Second — “When he contends that he has a privilege on the proceeds of the thing seized and sold.” C. P. 396.

“ This opposition must be made before the court which granted the order of seizure or the judgment in virtue of which the provisional seizure has been effected.” C. P. 397.

How the plaintiffs in this extraordinary proceeding expect “to regulate the effect of a seizure in what relates to them” or their junior mortgage, eighteen months after the seizure has been released, the sale consummated, and the funds distributed, we can not imagine.

Until the sale was ended and the money distributed, of course Edward J. Gay & Co., junior mortgage creditors, could by third opposition have regulated the effect of the seizure under the first mortgage in what relates to them. They could have caused a coneursus; and contradictorily with the sheriff, the plaintiffs, the defendants, the purchaser, and the holder of the outstanding note for $10,000, due first January, 1873, secured by a prior mortgage, but alleged to be invalid for failure of consideration, they could have demanded the payment of their second mortgage claim of $4371 78, and the rights of all parties could have been fixed and the funds distributed accordingly. But eighteen months after the sale and the distribution of the funds, the remedy of the plaintiffs in opposition, Edward J. Gay & Co., was an hypothecary action. And if the outstanding note of $10,000 secured by a prior mortgage, due first January, 1873, be invalid, of course the $9056 20 retained by the purchaser to pay it must be applied in discharge of mortgages next in rank. The exception that the petition sets forth no cause of action on which a third opposition will He, was well taken; and the judge.did not err in dismissing the opposition, although the reason he gave therefor was not a good one.

The case having been tried and submitted below on all the exceptions, can be revised on all of them in this court, although the judge-dismissed the suit on one of them and said nothing in regard to the others.

Judgment affirmed.

Eehearing refused.

Mr. Justice Morgan took no part in this case.


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    No. 3892.
    The Pontchartrain Railroad Company v. the City of New Orleans.
    In tliis case the act of the officers of the city and the men in their employ being a trespass upon plaintiff’s property, for this the Jaw holds the corporation liable. A judgment in favor of the city of New Orleans, like other judgments, could only be executed by the proper officers of the law. It was the province of the court to see that its orders were obeyed. It was no part of the mayor’s duty to enforce its decree.
    APPEAL from the Seventh District Court, parish of Orleans. 061-lens, J.

      Lea, Finney & Miller, for plaintiff and appellee. B. F. Jonas, city attorney, 8. P. Blame, assistant city attorney, for defendant and appellant.
   Morgan, J.

Plaintiffs purchased from Bernard Marigny a strip of land fifty feet wide. The purchase was made on the twenty-third February, 1830. The title of Bernard Marigny to the land in question can not be denied. The land was bounded on either side by a public street.

On the fifth March, 1830, the City Council authorized the plaintiffs, during the whole period of the existence of their charter, to cause their road to run in the street, road, or walking avenue, the whole to be established under the direction of the surveyor, and the mayor was authorized to allow "them the use of the street, in so far as no inconvenience should result therefrom to the public. The quantity of the public road to be used by them was not to exceed twelve feet.

Acting under this authority the plaintiffs erected a depot which covered their own land; the outside pillars thereof, side walls, side columns, and other portions of the depot rested upon the two strips of twelve feet each on either side of their property. A portion of their track was also laid by them. The buildings were erected within a reasonable time after the passage of the ordinance, and from that time until the year 1870 they were in the peaceful and unrestrained possession and enjoyment of the same.

In July, 1870, the Common Council passed an ordinance by which they revoked the permission which had been given to plaintiffs to use these strips. The mayor shortly thereafter wrote to plaintiffs directing them to remove the obstructions from these strips. They applied for an injunction to protect their tracks as well as their depot. .A rule was taken to set aside the injunction under article 307 of the Code, of Practice, reserving to plaintiffs the right to recover from the citysueh damages as might be sustained by such dissolution if a definitive judgment should be rendered in their favor. The rule was made absolute ; the motion to bond without furnishing security was granted, and the injunction dissolved in so far as to restrict the defendants in their legislative power to control and regulate the two strips of land of twelve feet in width which was in question, and in so far as it restrained the defendants from removing or causing to be removed the obstructions upon these strips ; the tracks, however, were not to be interfered with. This on the third September. It seems that a suspensive appeal from this judgment was applied for and denied. Application was then made to this court for a mandamus compelling the district judge to grant the appeal, and the preliminary order issued. What became of it, however, does not appear.

The then mayor of the city declares that he had told an officer to be ready if the injunction was dissolved to remove the building at once; that he was informed of the decision of the district judge dissolving the injunction, and that, as he believes, within an hour or two afterward, he gave a written order to the officer in which he directs him to have removed the obstructions from two strips of land twelve feet in width on Elysian Fields street, bordering the space formerly reserved by Bernard Marigny as a canal and covered by an old depot of the Pontchartrain Railroad Company.” He was also instructed not to disturb the railroad track, or any part of the depot, except so far as might be necessary to clear the strips of land aforesaid.

The officer, with a large force, proceeded at once to the execution of this order. On the same day, the president of the company addressed a letter to the mayor in which he notified him that men were then tearing down their depot; that the judgment of the district court decided only that the obstructions upon the two strips be removed, but that the body of men to whom he referred were going far beyond the judgment of the court, and were inflicting damages of a serious nature upon the private property of the company, and while he asserted that he did not acquiesce in the judgment which was being executed, he asked him to arrest the wholesale destruction of the company’s property.

On this protest and request no action was taken, no answer Was .made. The entire edifice was destroyed. The work of destruction commenced in the afternoon of Saturday, the third of September. It continued during that night, during all of the following Sabbath, and through the whole of that night. On Monday morning the building had ceased to exist. The materials were all carried away and lost to the plaintiffs.

The object of this suit is to recover from the city the value of the property thus destroyed and the damages consequent thereupon. There was judgment in favor of the plaintiffs for $34,428. Defendant has appealed.

The conduct of the mayor was in our opinion reckless and illegal; the damage which it caused was large and unnecessary. He had no right, under any circumstances, to take the law into his own hands. Admit that, the judgment of the district court was in favor of the city. That judgment, like other judgments, could only be executed by the proper officers of the law. It was the province of the court to see that its orders were obeyed. It was no part of the mayor’s duty to enforce its decrees. And if it was, the injunction which the plaintiff obtained ■ was not set aside in so far as it restrained the defendant from removing or causing to be removed the obstructions which were upon the property of the city. There was no authorization to tear down the whole building and leave the wreck thereof to be plundered by any one who chose to help himself.

The damage was caused by the city and its officers.' It is, therefore, responsible.

The building was necessary to the plaintiffs. It was used as a depot. There goods were received and shipped. It was an adjunct, and a valuable one, to another depot which they owned in the upper portion of the city.

Some of the witnesses of the defendant say that it was not used as a depot; some that it was a nuisance; that it was used for filthy purposes; that it obstructed the view* from the neighboring houses, and interfered with the river and the free circulation of air, and deteriorated the value of property in its vicinity. One of them attributes his having been robbed to the proximity of that building to his residence. But the same witnesses show that everything in that locality is more or less dilapidated; that the buildings are mostly out of repair; that it is infested with dance houses frequented by lewd and abandoned women. It seems to us that the police authorities of the city are more to blame for this state of facts than the freight depot of a railroad company.

On the other; hand, the officers of the company show that the depot was much used. The testimony of the witnesses who knew the building best, says that the building though old was good ; that it was built of the best brick, cypress, cedar, iron, and covered with the best slate.

Pilié, who is certainly authority upon such subjects, says that “ it was perfectly practicable in September, 1870, for the city to have removed the portion of the depot which encroached upon the two strips of twelve feet;” and he describes, satisfactorily, we think, how this could be done, at a cost of not more than $6000, and in about three weeks time. Swanson says the same thing, fixing the cost at $3000-So does Evans; so does Besnard.

The act of the officers of the city and of the men in their employ was a trespass upon plaintiffs’ property. Por this the law holds the corporation liable. Babassa v. Orleans Navigation Company, 5 La. 461; Mabrie v. Canal Bank, 11 La. 83; McGary v. City of Lafayette, 6 An. 460.

The only remaining question is the amount of damages which should be awarded. These damages consist of the value of the property destroyed and the expense and loss which its destruction caused. Upon this point we think the judgment of the district court should be amended so as to reduce the amount allowed by it to thirty thousand dollars.

■ It is therefore ordered, adjudged, and decreed that the judgment of the district court be amended so as to reduce the sum allowed by it to thirty thousand dollars, and that thus amended the judgment be affirmed. Appellants to pay costs in the court below; those of the appeal to be paid by appellees.

Behearing refused.


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    No. 4684.
    Edward J. Gay & Co. v. Eaton & Barstow.
    One must be sued before the judge having jurisdiction of the place of one’s domicile, except in the cases provided in the Code of Practice. The case of a factor having a lien for his advances on a crop is not embraced in the excepted cases.
    A court without jurisdiction to try the principal demand can not try an issue accessory thereto. A court that can not determine whether or not a debt- exists, for want of jurisdiction, can not decide that there is a privilege, because the latter can not exist without the former.
    A sequestration is merely a conservatory order. A court without jurisdiction of the case can render no order whatever binding the parties, and consent can not give jurisdiction.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      Merriclc, Race & Foster, for plaintiffs and appellants. Breaux, Fenner & Ball, for defendants and appellees.
   Wyly, J.

The plaintiffs sued the defendants, a firm, which they allege is domiciled in the parish of Rapides, for $4771 78 for advances and supplies furnished defendants’ plantation, and they sequestered ten hogsheads of sugar and sixty-nine barrels of molasses, raised on said plantation, upon which they claim the furnisher of supplies’ lien. Behan et al. and Gantt intervened, asserting a preference to said produce.

The court dismissed the suit exproprio motu for want of jurisdiction, it appearing from the allegations of plaintiffs that the domicile of defendants’ firm was not in the parish of Orleans.

From this judgment plaintiffs appealed. There is no error in the judgment.

Under article 162 C. P. one must be sued before the judge having jurisdiction of the place of his domicile, except in the cases expressly provided in the Code of Practice. The case of a factor having a lien for his advances on a crop is not embraced in the excepted cases. A court without jurisdiction to try the principal demand can not try an issue accessory thereto. A privilege springs from the nature of the debt. A court that can not determine whether or not a debt exists, for want of jurisdiction, can not decide that there is a privilege, because the latter can not exist without the former.

A sequestration is merely a conservatory order. A court without jurisdiction of the case can render no order whatever binding on the partiés. And consent can not give jurisdiction.

The case of Rochereau & Co. agents, v. Marcel Guidry, 24 An. 309, is directly in point and controls this case. There are other decisions of this court to the same effect.

Judgment affirmed.

Rehearing refused.

Mr. Justice Morgan took no part in this decision.


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    No. 5515.
    State of Louisiana ex rel. Thomas Lynne v. John Calhoun, Administrator of Public Accounts et al.
    The plaintiff has failed to prove his allegations that there was, at the time of mating his demand, money in the city treasury specially designated and set apart for the payment of judgments. Failing in this, he was clearly without right to the proceeding hy mandamus, even if he could otherwise have resorted to it.
    A.PPEAL from the Superior District Court, parish of Orleans. Haiuhins, J.

      J. W. Thomas and Alfred Shaw, for relator and appellee. Samuel P. Blanc, assistant city attorney, for the defendants and appellants.
   Taliaferro, J.

The relator avers that in pursuance of law he caused to be registered at the department of public accounts of the •city of New Orleans, a judgment he had previously obtained against the city, amounting to $9742; that the same remains unpaid, after the lapse of eight months, although he has repeatedly applied to the proper officer for a warrant for its payment, which is steadily refused. He further alleges that since the registration of his judgment, as well •as at the time it was registered, there has been repeatedly in the city treasury, and now is in it, a sufficient sum of money to pay the relat- or’s judgment, specially designated and set apart for that purpose in the annual budget, as well as additional provision therefor under the head of contingent expenses.

The relator, on these grounds, applied to the court a qua for a writ of mandamus, commanding the defendant, Calhoun, as Administrator of Accounts, to warrant on the Administrator of Finance for the payment of the relator’s judgment; he prays further a writ of injunction against the said Administrator of Accounts, restraining him from warranting on the general funds of the city for any purpose other than that for the payment of the said judgment, until the same be paid.

A rule nisi was granted, and ttie defendant responded, showing for •cause:

First — That by act No. 5 of 1870, the court is without jurisdiction to hear, order or allow any writ of mandamus tending, either directly or indirectly, to compel the respondent to issue a warrant for the payment of any claim or judgment against the city of New Orleans.

Second — If the foregoing exception to the jurisdiction of the court be not entertained, the respondent for further cause denies that since the registry of the relator’s judgment large sums of money have been received by the Administrator of Finance, out of which the aforesaid judgment was entitled to be paid. He avers that there is no money in the treasury to pay said judgment, and that there has not been any for that purpose.

The rule was made absolute, and an order rendered that a peremptory writ of mandamus issue.

Prom this judgment the respondent has appealed.

The plaintiff has failed to prove his allegations that there was, at the time of making his demand, money in the city treasury specially designated and set apart for the payment of judgments. Tailing in this, he was clearly without right to the proceeding by mandamus,, even if he could otherwise have legally resorted to it.

We think the judgment of the lower court erroneous.

It is therefore ordered that the rule be discharged at plaintiff’s cost.


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    No. 5334.
    City of New Orleans v. I. W. Patton, Sheriff.
    This is a suit against the defendant, a former sheriff of the parish of Orleans, to recover-from him an aggregate amount of costs and sheriff's fees alleged to have been paid him above what he was entitled by law to collect from the city in criminal cases.
    Under the provisions of the statute of 1857 the City Council could not go, in this matter,, behind the certificates of judge and clerk. Ho material change has been made, on this-point, under the provisions of section 1042, page 471, of the Digest of 1870. In the former-case the treasurer was required to pay the sheriff’s bills upon the certificate of the clerk and the presiding judge; in the latter case he is required to pay them after an account thereof shall be duly certified to be correct by the clerk of the court and the judge.
    Taking the contest of the two sections above mentioned, their purport is clearly the same, although the phraseology is different. But it is impossible to conclude from such a distinction, as contended for, that the city may,, under the esisting legislation, inquire into-the legality of the sheriff’s costs and fees when certified to as above stated.
    APPEAL from the Superior District Court, parish of Orleans. Mawlcins, J.

      George 8. Lacey, city attorney, 8am. P. Blane, assistant city attorney, for plaintiff and appellant. Mays & New, for defendant and appellee.
   Taliaferro, J.

The city brings this suit against the defendant, a former sheriff of the parish of Orleans, to recover from him $12,920,. alleged to be an aggregate amount of costs and sheriff’s fees paid him over and above the amount of costs and fees he was entitled by law to collect from the city in criminal cases. The answer is a general denial. There was judgment for defendant, and the plaintiff has appealed.

The defendant places his defense on the ground that, as he presented his bills to the proper city authorities month by month, they were duly certified according to law by the judge and clerk of the proper court to be correct, and that the city can not go behind the bills thus authenticated and contest any of the' items therein contained. It is. admitted by the plaintiff’s counsel that under the provisions of the statutes of 1857 the city could not go behind the certificates of judge and clerk as decided by the court in the case of Parker v. Robertson, 14 An. 246, and that of Shaw v. Howell, 18 An. 195; but he seeks to show that under the provisions oi section 1042, page 471, of the Digest of 1870 a material change was made as to the manner of payment of expenses in criminal cases, and that the city may under the existing legislation inquire into the legality of the sheriff’s costs and fees charged in his bills, notwithstanding the judge’s and clerk’s certificates. He arrives at this conclusion by a process of verbal criticism on the word upon used in the statute of 1857 and the word after used in the Revised Statutes of 1870. In the former case the treasurer was required to pay the sheriff’s bills upon the certificate ot the clerk and the presiding judge ; in the latter he is required to pay them after an account thereof shall be duly certified to be correct by the clerk of the court and the presiding judge thereof.

We are unable to see the distinction contended ior. Taking the context of the two sections their purport and meaning are clearly the same, although the phraseology used is different. We conclude that the decree of the lower court is correct..

Judgment affirmed.