author: Manning, C. J. Spencer, J. Marr, J. Egan. J.

text:
    No. 6656.
    State ex rel. Allen Jumel, Auditor, etc., vs. George B. Johnson.
    The judge of a State court has jurisdiction to determine whether the party applying to remove a suit pending before him, to a circuit court of the United States, is one who is, under the act-of Congress, entitled to remove the suit.
    The title to an office can not be put at issue in a mandamus proceeding.
    A mandamus suit in a State court is not removable to a Federal court on a plea, or allegation, which raises the issue of title to an office.
    The right of removing a suit from a State, to a Federal court, is a matter reviowable by tlio'Supremo Court of the United States, under a writ of error to this court.
    A writ of error from the Supreme Court of the United States to this court, operating as a supersedeas, divests this court of all further jurisdiction of the ease;
    APPEAL from the Fourth District Court, parish of Orleans. Houston, J.

      H. N. Ogden, Attorney General, for relator and appellee.

      John Bay and Hugh J. Campbell, for defendant.
   The opinion of the court was delivered by

Manning, C. J.

Allen Jumel, the- Auditor of Public Accounts of this State, alleges that George B. Johnson refuses to deliver to him the keys, archives, books, public reeoi’ds, and papers 'belonging to that office, and prayed and obtained a mandamus to compel their delivery, which was issued in the alternative form on the twenty-seventh day of April of the present year.

Before filing any answer, the respondent presented a petition for the removal of the cause from the Fourth District Court of this city to the Circuit-Court of the United States, and tendered a bond in accordance with the act of Congress of March 3,.1875. The judge refused permission to file the petition and bond, and a bill was reserved to his ruling.

The respondent’s counsel argue before us that the reception of the petition for removal and accompanying bond was not optional with the judge to whom it was presented, nor was he at liberty to consider whether the allegations of the petition justified the transfer of the cause, but that the reception and filing of the petition was a matter of right of •the respondent, and the transfer was compulsory as soon as it was filed. The position is broadly stated in their brief, that such filing ipso facto transfers the cause to the United States court, and that court alone can consider and determine whether the petition and bond are sufficient to authorize the transfer. The authority of Dillon is quoted as sustaining this position.

We can not approve it. The language of the act of Congress does not support it. That enactment is as follows: “ That whenever either party * * entitled to remove any suit * * shall wish to remove such suit from a State court to the Circuit Court of the United States * *- ho may file a petition in such suit in such State court * * and shall make and file therewith a bond * '* and it shall then be the duty of the State court to accept such- petition and bond and proceed no further in said suit.”

The duty of the State court is to accept the petition and bond, and to proceed no further in the suit, whenever a party thereto, who -is entitled to remove it, shall present them. But what is the court to do when the petition and bond are presented by a party who is not entitled to remove the suit ? And how shall the court discover whether its duty is to accept or reject the petition, to proceed with the cause or to stay proceedings, until it has ascertained whether the party presenting the petition and demanding the transfer is or is not entitled to remove it ? The order of transfer presupposes an inquiry into and judicial determination upon the right of the party to remove the cause, and until that inquiry is made the State court can not know whether the applicant for the transfer is entitled tq it, and until the court does know that fact it should not judicially determine that the transfer shall be made.

Upon the refusal of the court to permit the- petition for transfer and bond to be filed, the respondent answered, setting up title to the office of Auditor, and averring that he was elected to that office on the seventh of last November, and was so declared by the returning officers, and was commissioned by the Governor, and has qualified, and has “ acted as Auditor until about the twenty-fifth of April of the present year, when his office was taken forcible possession of by persons acting under the authority of Francis T. Nicholls, Governor of the State of Louisiana, without any legal or rightful authority, by which unlawful acts he has been prevented from discharging the duties of his office.” He specifically denies that the relator is the legal and rightful Auditor, and prays that the writ of mandamus be refused, and the suit be dismissed.

This presents distinctly the issue of the rightful title to an office, an issue which can not be tried in this form of proceeding. A mandamus will not issue to test the right to an office. That doctrine is coeval with the origin of the writ, and has .often been applied by this court. State ex rel. Vienne vs. Hyams, 12 An. 719; State ex rel. Sternberg vs. Lagarde, 21 An. 18; Hero’s case, idem 336. In Sternberg’s case, where he alleged title to the office of sheriff and applied for the writ to compel his predecessor to deliver to him the room, keys, papers, records, etc., belonging to it, our immediate predecesors held that it was not the office was in dispute, the right to which could not be inquired into under an application for a mandamus, but it was the room, books, papers, etc., belonging to that office, and the court made the writ peremptory. And this ruling is founded upon the express provision of our Code which permits a mandamus to issue to a public officer to compel him to deliver to his successor the papers and other effects belonging to his office. Code of Practice, art. 833.

When the respondent, in his answer to the rule, presents an issue that is foreign to the use for which the writ may be invoked, he can no more be heard than a relator who shall seek to test the title to an office under the guise of a proceeding, the ostensible object of which is to obtain possession of the books and insignia of the office. Such is the dictum of a recognized authority on the subject: “But, if it be apparent to the court that instead of a proceeding whose object is only to get possession of the books and insignia of the office, the writ is invoked in reality to test the title to the office, and that the question of title is the real point in issue, it will refuse to lend its aid by mandamus.” High’s Extraordinary Legal Remedies, sec. 77. It is manifest then that the respondent can not put at issue the title of the relator to the office of Auditor in this proceeding.

We have postponed the- consideration of the respondent’s right to transfer the cause to the United States Court until now, because it was necessary first to determine what was the nature of the present proceeding, and to define the limits within which it could be used by either of the parties.

The right of transfer is founded upon the act of Congress which provides for the enforcement of the right of suffrage of colored persons, wherein, it is enacted that “ whenever any person shall be defeated or deprived of his election to any office * * * by reason of the denial to any citizen, who shall offer to vote, on account of race, color, or previous condition of servitude, * * * such person may bring any appropriate suit or proceeding to recover possession of such office,” and upon the other statutes which specify the classes of cases that are removable. A basis is laid for the application, by averments in the petition for removal that at least ten thousand colored citizens who offered to vote at the election of seventh November, 1876, were denied the right to vote on account of their color and previous condition of servitude, and that by reason of such denial, the respondent is deprived of his office.

The issue thus attempted to be raised in this petition for removal is identical with that presented by the answer, viz.: the title to the office of Auditor, and we have seen that under no circumstances can the title to an office be inquired into by a mandamus. Since then the right to remove the cause is claimed because of the assumption that the proceeding has a quality which it has not, it follows that the refusal to remove was proper.

We shall make the writ peremptory, and in doing so it is obvious that we recognize the relator as the Auditor of Public Accounts of this State. There are persons and facts of which a court takes judicial cognizance. This, court takes cognizance of the fact that Francis T. Nicholls is the Chief Executive of this State, and regards his commission as furnishing a prima facie title to an office. We take judicial cognizance of the persons who hold the principal offices of State — of the Attorney General who represents the State in this proceeding — of the relator, as the Auditor. Government could not exist, under our form, without thus taking certain things for granted. Government must have a beginning, and it is an elementary and a necessary principle, that the courts, constituted by and organized under a government, must recognize the authority under which they act.

But this does not prevent the respondent from inquiring into the rightfulness of the relator’s title to his office in that form of procedure which the law has designated for that purposa There is a mode provided by law, and indicated as the special machinery to be used by one who complains that another has intruded into his office. Such inquiry can not be provoked by a respondent in an answer to a rule why a mandamus should not issue, nor could the relator have demanded an adjudication of his own title by invoking the writ for that purpose.

Let the peremptory writ issue, commanding the respondent to deliver to the relator the keys, archives, books, records, and papers belonging to the office of Auditor of Public Accounts of the State, and it is further ordered and decreed that the relator have and recover of the respondent the costs of both courts.

On the Rule to execute Judgment.

Spencer, J.

A writ of error having been granted, with supersedeas, from the decree in Jumel vs. Johnson, this court is divested of all jurisdiction and control of the case, or of any part thereof. That writ emanating from the Supreme Court of the United States, directs .this court to send up the record, and forbids, in effect, the execution of our decree. We are bound to respect and obey this mandate.

The defendant has clearly the right ,to have the question of removal passed upon by the Supreme Court of the United States, as it is a right claimed under an act of Congress, and denied to him.

If he had the right to remove, any further proceeding in the court below or in this court, after Ms application to remove was duly made, is coram nonjudice, and null and void.

This fact shows that the question to be decided by the Supreme Federal Court underlies every part of this cause, for if there was error in refusing the removal, there is no decree of this court or of the court below to he executed.

The motion and rule is discharged and denied.

Concurring Opinions.

Marr, J.

By timely application in the court below, the respondent sought to have this cause removed into the Circuit Court of the United ‘States under the act of Congress approved third of March, 1875.

The case, in my opinion, was one of which the circuit court could not have taken jurisdiction, either by original process or by removal, and I concurred in the decree of this court affirming the judgment of the court below refusing to allow the removal.

The respondent applied for and obtained a writ of error, to have the decree of this court reviewed by the Supreme Court of the United States, ■and he gave bond, which was satisfactory to and was approved by the Chief Justice of- this court, to operate as a supersedeas.

The Attorney General now moves to have the decree of this court sent down to the district court in which the proceeding originated to be exe-cuted. In my opinion, this can not be done.

With a perfect conviction that there is no error in the decree of this court affirming the judgment of the court below, it is obvious that this is the precise question to be determined by the court having supervisory jurisdiction, the Supreme Court of the United States, and, from the moment the writ of error was allowed and the bond approved, this court ■ceased to have jurisdiction of the cause for any purpose whatsoever.

There is, in my opinion, but one Eederal question involved in this case, but one question which the Supreme Court of the United States can take-cognizance of, and with respect to which this court is subordinate to the Supreme Court of the United States, and that is, whether the respondent-was entitled to have the cause removed from the State court into the circuit court. This question depends purely and exclusively upon the laws-of the United States. The respondent claimed a right under the laws of the United States, the right to have the cause removed into the circuit court; and he claimed exemption under the laws of the United States-from the jurisdiction of the State court. This court, the tribunal of last resort under the laws and constitution of the State of Louisiana, decided that he was not entitled to the right and exemption asserted and relied upon by him. If this decision is not subject to revision by the Supreme-Court of the United States, it is not possible to imagine what decision of a State court of last resort would be subject to appeal or writ of error.

So far as the right to the benefit of the writ of error is concerned, it is-not a question as to whether the State court decided correctly; the whole inquiry is limited and within a very narrow compass: Did the court pass upon and determine a question arising under the laws and constitution of the United States ? Did the party demanding the writ of error claim a right or exemption under the laws and constitution of the United States; and was the decision against the right or exemption thus asserted and claimed ?

It is the law of the United States alone which gives the right of removal; it is the law of the United States alone which exempts the party who claims the right of removal from the authority and jurisdiction of the State court, and in order to determine whether the State court had jurisdiction it was necessary to decide whether the asserted right of removal, the exemption claimed, actually existed in the given case under the laws and constitution of the United States, and the State court of last resort having decided that the right and exemption did not exist, there is no remedy or relief for respondent except by resort to the Supreme Court of the United States, properly vested with jurisdiction in all such cases.

This court may have decided correctly; if so, the decree will be affirmed by the Supreme Court of the United States. This court may have erred;, if so, the court below was without jurisdiction, this court was without-jurisdiction, and the whole proceeding was coram non judice, and absolutely void. And yet this error can be corrected only by the Supreme-Court of the United States.

Conceding that is a proper case for writ of error, it is urged that the-judgment may be executed provisionally, and that the public interest demands that it shall be executed provisionally. But this proposition is-not tenable. The writ of error does not necessarily operate as a super¡sedeas, but if it is taken, and sufficient bonds given within the time limited by the laws of the United States, the supersedeas is a mere matter of course, a necessary legal consequence.

When the respondent had obtained an order of appeal to this court, •and had given the requisite bond, the court below was divested of jurisdiction, and this court would have interfered, by prohibition, if necessary, to prevent any attempt to execute the judgment appealed from-until the matter could be-heard and determined in this court. Why ? Because it was the right of the respondent to appeal; it was his. right to make that appeal suspensive; and the appellate court was bound to protect him in the enjoyment and exercise of that right. By what process of reasoning can it be shown that the appeal which vested jurisdiction in this court necessarily .suspended the execution of the judgment, if the writ of error which vests jurisdiction in the Supreme Court of the United States, leaves this court free to order the execution of its decree?

Appeals and writs of error are very frequently frivolous; they are often taken merely for the purpose of delay, without a hope of ultimate s'uc■cess. Great inconvenience, loss, and injury may be occasioned to individuals and to the public by improper resort to appellate tribunals, but if the party cast in a suit chooses to invoke the aid of an appellate court having jurisdiction, his right to do so can not be denied and should not be abridged, and it is better for individuals, better for the public, to suffer the inconvenience of delay and temporary suspension in the enforcement of a right than to incur the risk of depriving one of the right to have his complaint heard and determined in the highest judicial tribunal having jurisdiction.

There may be some question as to whether this is “ a suit at law or in equity,” within the meaning of the act of Congress. In my opinion it is a suit at law. But if I had any doubt on that point, I should give the respondent the benefit of that doubt,'andT would prefer, in any case, to err in favor of the right of appeal rather than risk doing the wrong of refusing that right improperly.

I concur in the opinion and conclusions of Justice Spencer that the rule should be discharged.

Egan. J.

The writ of error having been granted, and a sufficient bond given to operate a supersedeas under the act of Congress, I am unwilling, in this case, to disregard it by making the rule absolute. The considerations of public policy and State necessity which may operate in i such cases to prevent interference through the Federal courts with the operations of any department of a State government are certainly very ..grave and entitled to due weight, but should probably be taken into account before granting the writ of error, a matter with which this court, as such, has nothing to do. In case of doubt, I should always incline to give every litigant the benefit of every legal remedy. I think, however, that the tendency to trench upon the jurisdiction of the State courts latterly displayed, and to transfer causes with too much facility, should not be encouraged by us. That it has not been in the present case is manifest from our decree making the mandamus peremptory. Neither am I prepared to say that in a case, which in itself involves no Federal question any party may, by mere frivolous application for removal from a State court to a Federal court, entitle, himself, as a matter of right, to a writ of error for that reason. By reason, however, of the present attitude of this case, and of the circumstances attending it, I concur in the discharge of the present rule. .... .


source: Caselaw Access Project

author: DeBlanc, J.

license: Public Domain

text:
    No. 6624.
    Succession of Hugh McCloskey. Hugh McCloskey vs. J. D. Martin and Richard McCloskey, Executors.
    A legatee who has accepted, and entered on the enjoyment of his legacy, can not afterward demand that the terms and conditions of the legacy shall bo changed.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      T. W. Collens and James Timomj, for plaintiff and appellant.

      F. Bermudez and 21 Gilmore & ¿Sons, for defendants.
   The opinion of the court was delivered by

DeBlanc, J.

Hugh McCloskey, an uncle of plaintiff, died in this city, leaving a last will containing several legacies, one of which to his nephews, Hugh, the plaintiff, and George, his brother. The legacy to his nephews was, partly, “ the right to rent at five hundred dollars per month some property belonging to him, the testator.”

The will does not fix the time during which that right may be enjoyed.

On the twenty-second of December, 1873, Hugh McCloskey applied to the Second District Court for the purpose of having said disposition carried into effect. His application was granted, and the executors of the last will of his uncle ordered to lease him the. property for the space of four years.

On the twenty-seventh of January, 1874, in accordance with the disposition of the will and the judgment of the court on his own application, the executors appeared before a notary, and leased unto the said Hugh. MeCloskey, for and during the term of four years, a house and its appurtenances (that designated in the will).

This lease was made for and in consideration of forty-eight notes of each five hundred dollars, subscribed and delivered by plaintiff to the executors.

He now prays that said lease be abrogated, and the rent of the house reduced to two hundred and fifty dollars per month, until a change in the market value of rent may warrant an increase or another reduction thereon.

The district judge rejected plaintiff’s demand, and we are asked to reverse his decision, to annul the judgment authorizing the executors to rent and fixing the term of the lease, to avoid the contract of the twenty-seventh of January, 1874, and replace it by another, a different contract.

Plaintiff bases his demand on the ground that he signed the lease and the notes in error of his rights under the will; that his uncle intended to confer on him an advantage, a benefit, and that the rent, if continued at five hundred dollars, would be a burden.

When the will was written, when it was probated, when the legacy’was accepted, that legacy was an advantage, a benefit. The contract, intended by the deceased as a favor to his nephew, was, at the request of the nephew, passed by the executors of the last will. Can it be canceled without the consent of the legatees and creditors of the deceased ?

It is not, in reality, an abrogation or dissolution of the lease that plaintiff is asking; nor is it a reduction of the price first agreed upon, for any of the special causes fixed by our legislation and jurisprudence, His object is to so graduate the rent, so conform it to the value of rent and property, that at all times and under all circumstances, whatever may be the changes and fluctuations in the value of rent or property, the testamentary disposition in his favor shall remain an advantage, a benefit, and shall never be a burden.

Was and could the legacy have been accepted or rejected conditionally ? It neither was nor could have been so accepted. A succession can be accepted under benefit of inventory, but when finally accepted or renounced, no condition can be attached to either the acceptance or renunciation. Our Code so provides, and in terms as clear as positive; otherwise the heir or legatee would invariably accept for so long only as the succession and legacy would remain an advantage, and as invariably renounce, until so long only as the succession or legacy would be a'burden. That is not the law. R. C. C. art. 1016.

Oan the heir or the legatee dispute the validity or reduce the effects of his unqualified acceptance, under the pretext of lesion ? He can not. Suppose that the lease, in this case, instead of being allowed for the space of four years, on the condition fixed by the testator, had been allowed for ten years, and that, during nine years and nine months, the lease on that condition would have proven a considerable advantage to the legatee, could he consistently contest the payment of the rent due for the last month of that long term on the ground now urged by plaintiff? Certainly not. R. C. C. art. 1009.

What is a legacy ? An offer from the dead to the legatee to take what he intended to give. That offer the legatee can refuse or accept. If he accepts, it must be on the condition fixed by the deceased; those conditions, whatever they may be, he can not change before, and much less after, the acceptance. If to-day the legatee takes a horse valued by the testator at five hundred dollars, and worth that amount, and, shortly after, it becomes affected with the glanders, could he justly claim the five hundred dollars on the ground that the testator intended that he should have and preserve the equivalent of that sum ? He would be told: it was after it was delivered to you, after it had become yours, that the object of the legacy lost its value, and that loss you alone must bear, as you alone, and not the heir, would benefit by an increase in the value of said object.

The inference is indisputable, the testator intended to confer an advantage, and not to impose a burden. With that view he fixed the rate of .the rent; and, as to that clause, his last will was carried into effect. What he had not done the court did; with the consent of every one of the interested parties the court fixed the term of the lease, and plaintiff has accepted, taken, and enjoyed at the rate and on the condition fixed. We can neither add to nor change the condition settled by the will, the decree of the court, and the contract of the parties.

There is no error in the -judgment of the lower court.

It is therefore affirmed with costs.


author: DeBlanc, ¿T.

text:
    No. 6645.
    Succession of Pauline Menendez.
    Tho judgment of a court removing an under-tutor can 'not be suspensivelv appealed from. Such a judgment must be provisionally executed.
    ^PPEAL from the Second District Court, parish of Orleans. Tissot,

      W. JE. Murphy, for plaintiff and appellee.

      J¡. Sabourin, for defendant.
   The opinion of the court was delivered by

DeBlanc, ¿T.

I. M. Tupery, the grandfather of the children of Pauline Menendez, sues for the removal of Fernandez I. Carbajal, as under-tutor of said children, on the ground that he is aiding their tutor in an attempt to despoil them. There was judgment removing said under-tutor, and appointing, in his stead, the grandfather, the said Tupery. From that judgment Carlos Menendez, the tutor, and the dismissed under-tutor have prayed for and obtained a suspensive appeal.

In the lower court, a motion was made to dismiss this appeal, for the reason that, under the law, the execution of such a judgment as that rendered in this case can not be suspended by an appeal. That motion is urged here, and it must prevail. There are judgments which are to be provisionally executed, notwithstanding and without prejudice to the right of appeal. Among them is the appointment, and — of course — the removal of tutors and under-tutors. C. P. 580, 1059. •

Even the already appointed tutor, who has excuses to offer against his appointment, is bound to provisionally administer as such during the pendency relative to the validity of his excuses. R. C. C. 300.

Appellant relies, we presume, on the fact that the Code of Practice does not, in express terms, include in the list of judgments to be so provisionally executed, those that may be rendered against under-tutors. They are, undoubtedly, of that class, as a final decision in such cases may be retarded for a long time, and occasions might arise during the pend-ency of the litigation, which would require the inteference of an under-tutor.

This is not all: were a dative tutor appointed to replace an excluded or removed natural tutor, the decree ordering the appointment and removal would be provisionally executed against the parent. The under-tutor can not justly claim a privilege denied to the father: the causes of incapacity, exclusion, and removal, with but two exceptions, which apply to the tutor, apply likewise to- the under-tutor, and the effects of a decree pronouncing the removal are necessarily the same. C. C. 306.

It is therefore ordered, adjudged, and decreed that the appeal taken and granted in this controversy is maintained as exclusively a devolutive appeal.


author: Mare, J.

text:
    No. 2847.
    John Haeberle vs. John L. Barringer et al.
    A suit against a ship, or other vessel, and her captain and owners, without naming the latter, accompanied by a provisional seizure, or sequestration of the vessel, is an action in rem, and of such an action, the State courts have no jurisdiction.
    Only the admiralty courts have jurisdiction of suits in rem against vessels.
    In apersona! suit against the captain, or owners of avessel, the vessel is subject to attachment, or any other conservatory writ, that any other species of property is.
    APPEAL from the Second Judicial District Court, parish of Jefferson. Pardee, J.

      Egan & Whittemore, for plaintiff and appellant.

      JBJufft and JR. King Cutter, for defendants.
   The opinion of the court was delivered by

Mare, J.

Barringer brought suit in a justice’s court of the parish of Jefferson against the “steamboat Jatau, captain, and owners,” and caused the boat to be provisionally seized. A judgment was rendered in favor of the plaintiff, from which the owner of the Jatau took an appeal to the parish court. This appeal was finally dismissed for want of prosecution, and execution issued, under which the constable seized the Jatau. This seizure seems to have been released, and Haeberle, the owner of the boat, filed his petition in the Second Judicial District Court in the parish of Jefferson, alleging that the judgment was a nullity; that the fieri facias was also a nullity; that the seizure was illegal; that Bar-ringer and the constable, Joachim, threatened to seize the boat again on her return to port; that the boat was worth six thousand dollars; and that the illegal acts of Barringer and Joachim had caused damages to Haeberle for which he claimed six hundred dollars. He also prayed that they be perpetually enjoined from seizing said steamboat or any other property of Haeberle under the said illegal writ.

The judgment of the court below dissolved the injunction with fifty dollars damages and 'dismissed the petition, and Haeberle appealed.

We consider it well settled that a steamboat or a ship can not be proceeded against in a State court in the form in which the suit was brought and prosecuted in the justice’s court. A creditor having a claim of any nature whatsoever against the master and the owners of a ship or other vessel may bring his suit in personam against his debtors; and he may avail himself of any conservatory process allowed by the laws of the State to secure and enforce his demand. Where the defendants are nonresidents, for example, the creditor may obtain a writ of attachment and may cause to be seized any property whatsoever belonging to his debtor, whether it be ship or other vessel or some other thing liable to seizure. So, where the debt is one which creates a lien and privilege, the creditor may cause a writ of provisional seizure or of sequestration to issue, as the one or the other may be appropriate, and the property on which he claims the lien or privilege may be seized under such writ, whether it be ship or other vessel or any other thing whatsoever. In all such cases the debtors are sued by name, sued in person, and the writ is merely auxiliary to hold the property upon which the lien or privilege exists until judgment can be obtained in personam, and the lien enforced by seizure ■ under fieri facias.

. But a suit against “ the steamboat Jatau, captain, and owners ” is not a suit in personam, since no person is named and no person could be condemned. The provisional seizure in such case is a proceeding in rem against the property seized, which our law does not permit except in those cases in which the thing upon which the lien is claimed has either been lost or abandoned by the owner, or the owner is either unknown or absent, and these requisites must be made to appear by proper affidavit.

The creditor may sue the captain and the owners of the vessel, and may seize the vessel provisionally, but he must name and cite by name the persons whom he charges as captain and owners, otherwise his proceeding is in rem to enforce a lien and privilege on the vessel.

The jurisprudence of the Supreme Court of the United States and of this State has settled conclusively that such proceedings in rem against a ship or vessel can not be had in a State court, and that it is only in the admiralty that liens and privileges on ships and vessels can be enforced by proceeding in rem in the name of and against the vessel itself. See the Moses Taylor, 4 Wallace; the Hine, 4 Wallace; the Belfast, 7 Wallace; and Brown vs. Matanzas, 19 An. 384.

In this latter case the suit was brought against the “ steamship Matanzas, captain, and owners,” and the vessel was sequestered. The distinction in all such cases is this: A creditor having also a lien and privilege on the vessel may sue his debtor in any State court having jurisdiction of the person and the amount, and he may attach the vessel or seize it under any conservatory process allowed by the local law, but if he wishes to proceed against the vessel by name and to seize it in limine he must sue in the admiralty, and the State courts are without jurisdiction.

This is not a suit for the nullity of a judgment. The plaintiff alleges the nullity and the illegal seizure and the threatened seizure of his property under execution issued on that judgment. Eor the wrong thus done he claims six hundred dollars damages, and he also prays to be protected by perpetual injunction. The jurisdiction of the district court can not be seriously questioned. The boat may have been detained in port by the seizure, may have lost freight and passage money which would have otherwise been earned, and the plaintiff might have been able to prove the full amount of damages sued for. At any rate, the amount sued for is sufficient, and we are to look to that amount to determine the jurisdiction.

The judgment of the justice’s court was void for want of jurisdiction, and it acquired no additional force or validity by the dismissal of the appeal to the parish court.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided and reversed; that the injunction as prayed for in plaintiff’s petition and as originally granted in limine be reinstated and be made perpetual; and that the appellees pay the costs in both courts.


author: Manning, C. J. Manning, O. J.

text:
    No. 6430.
    Succession of C. E. Marc.
    The surviving widow, although a former concubine, and only married a few days before her husbands’s death, is entitled to all the rights enjoyed by any other widow, under the homestead law.
    The widow’s claim under the homestead act ranks all privileges, except that of the vendor.
    If the proceeds of the movables and unmortgaged property of a succession do not suffice to pay off its privileged debts, those debts must be first referred for payment to the proceeds of its property incumbered by the youngest mortgage.
    The vendor’s privilege is only operative as to third persons, from the moment of its registry.
    The vendor’s privilege will not take rank over a mortgage recorded before its own registry, unless its own registry was made on the day of the sale.
    ^PPEAL from the Second District Court, parish of Orleans. Tissot,

      A. J. Villeré and M. B. Bubuisson, for executor and appellee.

      J. ■Meunier and Ed. Bermudez, for opponents.
   The opinion of the court was delivered by

Manning, C. J.

The sole contest in this case is between the creditors of the deceased, each of whom has a mortgage.

Soye, the older creditor, obtained executory process, under which the property specially mortgaged to him was sold, and it did not realize sufficient to pay his claim, after the costs of his process and the taxes were satisfied.

Gayarre’s mortgage was on- another property, and was subsequent in date to Soye’s, and he had also the vendor’s privilege upon it, retained in the same act which recited the mortgage. The sale of that piece of property was likewise, insufficient to pay the costs, taxes, and his debt. The executrix has charged the general and special privileges, viz.: the funeral charges, and those of the last illness, and of law, and the widow’s portion of one thousand dollars, to the fund derived from the sale of the two mortgaged properties indifferently, and they consume the whole of both.

Opponents deny that the widow is entitled to the gratuity of one thousand dollars under the act of 1852, because she was the concubine of the decedent until within twelve days of his decease, when their marriage took place, while he was in the presence of death, and without issue born of their previous concubinage.

The act of 1852 gives to the widowwho is in necessitous circumstances the sum already mentioned, without qualifying her right to receive it by the condition that her previous life should have been blameless, or by limiting its operation to those whose married life should have lasted a specified time. Revised Statutes of 1870, section 1693. It is argued by' one of the opponents that an interpretation of the statute which permits the widow of Marc to partake the beneficence provided by it, would be offensive to our moral sense, and that it could not have been in the contemplation of the Legislature to place a woman, who has thus disregarded religious and social duty, upon the same plane with the respectable and bereaved widow, wliose condition attracted the regard and provoked the compassion of the law-maker.

It is very certain, however, that the law has not attached qualifications, nor imposed conditions upon the recipients of this legislative bounty, such as we are asked to supply and enforce in the present proceeding. Should w© attempt to do so, omitting any mention of our want of authority, we must arrange this description of persons into classes, separated from each other by the purity or impurity of their ante-nup■tial lives, or by the longer or shorter duration oi the marriage which preceded the widowhood.

There are conditions, however, imposed by the statute which the claimant of this bounty must fulfill. The widow must be in necessitous circumstanceSj and the present claimant is indisputably in that condition. The sum to be received from the succession of her deceased husband must be such, as added to the amount of property owned by her, will make one thousand dollars. She had no property, but. the rents of the mortgaged property occupied by her since her husband’s decease are $325, and are deductible from her portion under the act. Succession of Drum, 26 Annual, 539. The residue is to be paid in preference to all other debts, except those for the vendor’s privilege, and expenses incurred in selling the property, but the widow is entitled to the usufruct only of the sum specified in the act if there be children.

The opponent, Gayarré, had a vendor’s privilege on the property sold, under his mortgage, and claims its exemption from the widow’s allowaneé, which, is opposed by Soye for an alleged want of seasonable registry of the privilege. The copy of the act of mortgage contains also the retention of the vendor’s privilege, and it was recorded in the mortgage office on the fourth of April, 1874, a few days -after its execution. It is not pretended that any other mortgage exists, or existed on that property, and the objection of -want of registry is therefore untenable as between these creditors.

Two rules relating to the rank of privileges and to the fund out of which they are payable, are well established. One is, that when the movables and unmortgaged property are ■ insufficient to pay the privileges, they must be paid out of the fund arising from, the sale of the property covered by the youngest mortgage, and, that being insufficient) the residue must come out of that next in age. Devron’s case, 11 Annual, 482; Succession of Cerise, 24 Annual, 96; Succession of Rousseau, 23 Annual, 1.

The other is, that the destitute widow’s portion primes all privileges created previous to the death of the party, except that of the vendor, but that it yields to funeral expenses, expenses of last illness, and law charges growing out of the administration and settlement of the succession. Foulkes’s Succession, 12 Annual, 537; Quertier vs. Hille, 21 Annual, 429.

Applying these rules to the case at bar, the widow of Marc, whose portion is reduced to six hundred and seventy-five dollars by her previous receipts from the succession, must be paid that residue out of the Soyemortgage fund, and the general privileges, which are not satisfied by the sale of the movables, must be paid by the Gayarre mortgage as the least ancient.

The taxes and costs of sale of the Soye-mortgaged property áre nearly one half of the sum at which it was adjudicated, and the residue is insufficient to pay the widow’s portion, but the unpaid part of that residue can not be charged against the property affected by the vendor’s privilege.

The taxes and costs of sale of the Gayarró-mortgaged property are more than half of the sum realized by its sale, and that residue must bear the burthen of such part of the general privileges as are not satisfied by the sum derived from the sale of the movables.

Where the husband dies without descendants, as in this case, the necessitous widow is not required to give security. She does not take the usufruct only of the sum secured to her, but its full ownership. Succession of Hunter, 13 Annual, 257; Yarborough’s Succession, idem 378.

The reductions and alterations made by the lower court in the tableau are approved, and the funds must be distributed as directed by that court, except where amended or reversed by this decree, and it is accordingly so ordered, the costs of appeal to be paid by the two opponents and appellants in equal parts.

On Rehearing.

The opinion of the court was delivered by

Manning, O. J.

A rehearing of this cause has been granted on the application of the opponent, Charles Gayarró. The grounds urged by him for error are, that we subjected the fund, derived from the sale of the property upon which his vendor’s privilege rested, to the payment of the general privileges, -when these latter should have been charged to the Soye fund.

Upon a review of our opinion and decree, we find there was error in holding that his privilege existed, or could be enforced. A material alteration has been effected in the law applicable to this question by a radical change of two articles of the Civil Code.

Article 3240 formerly read as follows: “ The privileges enumerated in the two preceding articles are valid against third persons from the date of the act, if it has been duly recorded, that is to say, within six days of the date,” etc. It is numbered 3273 in the revisa!, and reads: “ Privileges are valid against third persons from the date of the recording of the act or evidence of indebtedness as provided by law.”

Article 3241 formerly read thus: “When the act on which the privilege is founded has not been recorded within the time required in the preceding article, it shall have no effect as a privilege, that is to say, it shall confer no preference on the creditor who holds it, over creditors who have acquired a mortgage in the mean time, which they have recorded before it; it shall, however, still avail as a mortgage, and be good against third persons from the time of its being recorded.”

That article is numbered 3274in the revisa!, and reads: “No privilege shall have effect against third persons unless recorded in the manner required by law in the parish where the property to be affected is situated. It shall confer no preference on the creditor who holds it over creditors who have acquired a mortgage, unless the act or other evidence of the debt is recorded on the day that the contract was made.”

The privilege mentioned in article 3238 (new number 3271), is one of those referred to: “The vendor of an immovable only preserves his privilege on the object when he has caused to be duly recorded at the office for recording mortgages, his act of sale in the manner directed hereafter, whatever may be the amount due him on the sale.”

Formerly, and under the Code of 1825, the vendor of an immovable preserved his privilege if he had the act evidencing it recorded within six days of its date. Now, by the alteration, or rather substitution of a new article, that privilege is preserved against third persons only from the date when the act is recorded. As against mortgages recorded anterior to the registry of the privilege, this latter has effect as such only when recorded on the day of the date of the contract creating it.

The application of these new articles of the Code to the present case sensibly affects the opponent, who claims exemption from contribution to the general succession privileges by reason of his holding a privilege superior to them. We are compelled to hold that he has no privilege whatever, as against third persons, since the act which conferred upon him, or preserved, the vendor’s privilege, was not recorded upon the day the sale was made. And this is what was meant by the counsel of Soye when the loss of the privilege was attributed to want of seasonable registry. .

The act of privilege not having been recorded on the day of its execution, the privilege itself was lost as to third persons, and Soye is a third person in this proceeding where the subjection of the two funds to the payment of the succession privileges turns upon the question of privilege vel non. Gayarré’s mortgage was not lost. .It was good from the day it was recorded, but it was junior to Soye’s, and a senior mortgage can not be required to contribute to the payment of privileges of a succession until the junior mortgages are exhausted. Therefore

It is ordered, adjudged, and decreed that so much of our former decree as subjected the Soye-mortgage fund to the payment of the unpaid residue of the widow’s portion, is set aside, and that after the sum derived from the sale of the movables is exhausted, the residue of the succession privileges be first charged against the junior mortgage fund of Charles Gayarré, and not until that is exhausted, can any portion of these privileges be charged against the more ancient mortgage fund of Soye, the costs of this appeal to be paid by the opponent, Gayarré.


author: Spencer, J.

text:
    No. 5981.
    City of New Orleans vs. L. Madison Day.
    Former statutes, providing for the collection of “ back taxes,” not being in conflict with act No. 96 of the extra session of 1877, which only refers to future taxes, are not repealed by it.
    The assessment of a tax against an individual, creates, not merely a lien on his property, but also a personal obligation to the full amount of the tax.
    A PPEAL from the Superior District Court, parish of Orleans. HaioXX kins, J.

      Samuel P. Blanc, Assistant City Attorney, for plaintiff and appellee.

      Bentick Bgan, for defendant.
   The opinion of the court was delivered by

Spencer, J.

This is a suit to recover city taxes on three pieces of property in New Orleans.

The property is described on the assessment roll as follows:

First piece. — “ Square No. 227, Common, Baronne, Gravier, and Caron•delet streets. Name of person — L. Madison Day. Streets — Corner Carondelet and Baronne. No. of lot — One. Measurement — 22 by 119.”

Second piece. — “ Square No. 45, Perrier, Prytania, Nashville Avenue and Eleanor streets, Hurtville. — Name of person — L. Madison Day. Streets — One square. Measurement — 24Ó by 300.”

Third piece. — “Square No. 63” — giving in a similar way its bounds and measurements.

In these assessments, in a column marked “ value of real estate,” we find entered in figures, as follows: For first piece “35,000,” for second piece “ 1000,” and for third piece “ 12,000.”

The defendant answering, contends that these assessment are void; ■first, because there is no sufficient description of the property, and, second, because the value, as denoted by the figures, is uncertain and unmeaning, having no' indications of what is meant by the figures used. As regards the first objection, it is so manifestly unfounded as to need no comment. The number and bounds of the squares, the number and measures of the lots are given. We are at a loss to conceive what more could be stated in order to describe the property. The objection that in giving the dimension or measurements, it does not appear whether the figures used mean feet, yards, or miles, is frivolous.

We think the second objection, that the figures used to state the valuation, do not indicate whether they are dollars or cents, equally without force. We state values in this country in dollars and cents. Cents are expressed in two ways, either by a decimal point before them, or by a fraction of one hundred. As the figures used in these assessments either mean dollars or cents, and as they manifestly do not indicate cents, they stand for dollars. Besides, nobody ever speaks or writes thirty-five thousand cents; they say or write three hundred and fifty dollars.

The authorities cited by defendant from the Tennessee and Elinois reports are inapplicable to his case. They refer to cases where the property had been sold, on defective rolls, without previous trial and judgment. Besides, the decisions of the courts of our sister States upon their several local revenue laws do not carry the weight and authority here that they would have, and no doubt deserve, when discussing subjects less local and peculiar.

If the figures used under the head .of valuation” did not mean dollars, the defendant had ample opportunity to have made it. appear by proof, and lie should have done it, for taking a common-sense view of the tax-roll the presumption was clearly against him, and we think the court fully justified in interpreting the figures as it did.

This suit was brought against the defendant in November, 1874, for the taxes of that year. On the fifth of that month he filed his answer, and on the fourth of December following his supplemental answer. On May 19,1875, after evidence introduced and argument, the court gave judgment for plaintiff, and defendant appealed. The defendant now insists that however right the judgment against him may have been it must now be reversed, and this suit be dismissed, because the act No. 96 of the extra session of 1877 has provided a new mode of collecting taxes, and that all laws providing a different .mode are repealed thereby. It may be true that the Legislature has provided a new mode of collecting taxes as stated, but it does not follow that that mode is exclusive, especially as relates to back taxes. We understand that the assessment of a tax against an individual creates a personal debt against him, as well as a lien against his property. If the property of the debtor subject to the lien be from any cause insufficient to pay the tax, he is personally bound and liable as well for the whole tax as for any deficiency thereof, and if it be a debt due by him personally, we know no law or reason why he may not be sued in the courts by the corporation to whom he is indebted and condemned to pay. We understand the act No. 96 to provide a speedy remedy as against the property itself, but do not see that it takes away the right of the city to proceed in the courts to enforce the personal obligations of its debtors, and incidentally its liens on their property. Be this as it may, the law by its terms makes no reference to hack taxes, and seems to provide for the future; and so far, therefore, as relates to the collection of hack taxes, the remedies provided in former statutes are not necessarily “in conflict” with act No. 96, and therefore not necessarily repealed by it. We would be very loth to hold to a construction of act No. 96 which would work so manifest an injustice and injury to the public ínteres^. As we have seen, there is no necessary conflict, and, therefore, as we hold, no repeal of the right of the city to proceed with her suits pending for delinquent taxes of past years.

It is therefore ordered and decreed that the judgment appealed from be affirmed with costs of both courts.


author: Egan, J. Marr, J. Egan, J.

text:
    No. 6417.
    Lafayette Fire Insurance Company vs. Heike Eiben Remmers.
    The Legislature can not change the judicial districts pending the existing terms of office of the district judges.
    When a portion of one parish, situated in a certain judicial district, is annexed by the Legislature to another parish, situated in a different judicial district, it will become a part oí the latter judicial district, on the expiration oí the existing terms of office of the district judges, unless the Legislature shall otherwise provide.
    ^PPEAL from tlie Fifth District Court, parish of Orleans. Cullom,

      Ilornor & Benedict, for plaintiff and appellee.

      N.- Commandeur and Merrick, Bace & Foster, for defendant.
   The opinion of the court was delivered by

Egan, J.

This suit is to enforce via ordinaria a mortgage and for personal judgment against the defendant, a resident of the Sixth Municipal District of New Orleans, where also is situated the mortgaged property. The defendant excepts to the jurisdiction of the Fifth District Court. It is urged per contra that he is subject to that jurisdiction both by reason of his domicile and the property mortgaged being situated in the parish of Orleans. The Sixth Municipal District is part of that territory, formerly belonging to the parish of Jefferson, which was annexed to and made part of the parish of Orleans by act No. 71 of the Legislature, approved March 23,1874, which specially provides that the territory so annexed “ shall bo and remain and constitute a part of the Second Judicial District of the State,” of which tlie parish of Jefferson was a part at the time. Our predecessors more than once held act No. 71 to be constitutional, and we are not prepared to depart from their conclusions, and there has been no subsequent inconsistent legislation. So l'ate as November last, in the case of Harrison vs. Carondelet-Streot Railroad Company, Collins, Garnishee, Opinion Book 45, p. 584, they held that the garnishee, under judgment and fieri facias, who resided in Carrollton, was within the limits of the Second Judicial District of the State, and could not be called to answer before the Fifth District Court of New Orleans.

The present case forms no exception, as both the mortgaged property and the domicile of the defendant are within the jurisdiction of the Second Judicial District Court. See O. P. 163. There may be difficulties, and serious ones, in the way of carrying into effect all the details of the act referred to, but while these may well serve as a warning against legislation of this class when it can be avoided, we are not called upon in the present ease to pass upon these questions, but only to announce our opinion that the reservation of jurisdiction over the territory in question in the Second Judicial District Court is constitutional.

It is said that many and grave objections attach to legislation which divides parishes in the formation of judicial districts. This is, doubtless, true, but whether so or not, this was not done by the act in question, which only retained the judicial district as before. It might have been well had the Legislature thought proper to limit the duration of this provision to the expiration of the term of the then presiding judge, and thereafter subjected the territory annexed to the same jurisdiction as other parts of the parish of Orleans. They did not, however, do so, and we can not supply such provision to the act which, had it not reserved jurisdiction, might have been liable to much more serious objection.

The constitution empowers and directs the Legislature to divide the State into judicial districts, which shall remain unchanged for four years. It also provides, that “ one judge,learned in the law, shall be elected for each district by the qualified electors thereof;” that “the judges of the district courts shall hold their offices for the term of four years, and that all officers shall continue to discharge the duties of their offices until their successors shall have been inducted into office, except in cases of impeachment or suspension.” All civil officers are liable to be impeached or addressed out of office. By article 158 of the ordinance adopted with and to carry the constitution into effect, the terms of all officers chosen at the first election under it were to date from the first Monday of November, 1868, so that at the date of the act No. 71, annexing part of the Second Judicial District to the parish of Orleans, the term of office of the judge of that district had not expired, and had the Legislature not made the reservation of jurisdiction in question, the act might have been liable to serious constitutional difficulties, both on this account and by reason of the subjection of the electors in the annexed district to the jurisdiction of a judge not elected by them, and their being taken from the jurisdiction of the judge who had been elected by them.

In the case of the Commonwealth vs. Gamble, 62 Penn. Rep. pp. 352, 353, under a provision of the constitution of that State, in effect and almost in language similar to ours, that “ the judges of the common pleas and other courts established by law, shall be elected by the electors of the respective districts of such courts,” the court says: “ It is obvious that this secures to the electors of every judicial district the right to choose their judges; and it is equally certain that if after an election the Legislature may transfer and make the district part of another district, when the inhabitants have had no participation, or chance of participation, in the election of a judge thus assigned to preside over them, that such an act would utterly ignore the provision of the constitution which provides for the election of judges by the elector,í of the respective districts.” And again: If this may be done in this instance, it may be repeated.” And so the territory and people might be transferred from time to time indefinitely, without ever exercising the right of participating in the election of a judge at all, “ and all such legislation must be utterly void if the constitutional provision for the election of judges be of the slightest consequence.”

The constitution of Illinois provided, “ that the State shall be divided into nine judicial districts, in each of which one circuit judge shall be elected by the qualified voters thereof, who shall hold his office for the term of six years, and until his successor shall be commissioned and qualified; provided, the General Assembly may increase the number of circuits to meet the future exigencies of the State,” and without any such provision as is contained in the constitution of Louisiana, that the districts, when created, “ shall remain unchanged for four years,” or for any other time. Ballou had been elected judge of one of the circuits of Illinois, and was commissioned and qualified as such on the thirty-first of March, 1857; subsequently an act of the General Assembly, approved on the eleventh of February, 1859, was passed, repealing the act creating the district of which Ballou was judge, and establishing in its stead the twenty-third j udicial circuit. Under this latter act another judge, Bangs, was elected and commissioned and proceeded to act, and the court says (23 Ill. p. 550): “The question is, can the Legislature expel a circuit judge from his office by creating a new district and taking from him the territory which constituted his district ? The bare reading of the constitution must convince any one that it intended to prohibit such a proceeding. It was the intention of that instrument to place the judges entirely above and beyond legislative control or interference, except by impeachment or address, as provided for in the twelfth section of the fifth article. It is the constitution which creates the office of circuit judge, and not the Legislature.” Again, in the same case, the court says: “ It is unnecessary now to say whether the Legislature may, under the constitution, reduce the number of judicial districts by abolishing one and attaching its territory to others. If it may, then, no doubt, the office toould cease upon the expiration of the term of the judge of such district, but till the expiration of his term if he conduct himself properly and does not become disqualified, the constitution has not provided, nor has it authorised any mode of expelling him from the office which is created by the constitution, and which he holds under the constitution.” In other words, such reduction of the number of districts and attaching the territory of one to others, could only take place or go into effect at the close of the term of the judge of the district abolished. A fortiori, then, would this seem to be true under the constitution of Louisiana, which not only fixes the term of office of the judge at four years, but provides that the districts shall remain unchanged for four years. These provisions should be read together and interpreted in harmony.

In 1 Cow. 564, it was held the justices of the peace held their offices for four years, and were not liable to removal béfore the end of that term, and that though county officers, and limited in jurisdiction to their counties, and in case they are cut off into a new county, which may be done, they are not thereby removed from office, but must be justices of the new county, and that an act of the Legislature providing for the continuance in office of justices residing in towns taken from Ontario and Seneca, now constituting the county of Wayne, is constitutional, and shall stand and be enforced.

In 6 Cow. 646, the same doctrine is reaffirmed, and while the power to create new counties is recognized, it is held to be subordinate to the provision fixing the term of office of justices of the peace at four years, unless removed in the manner provided by the constitution. The court says: “ It was the intention of the framers of the constitution to make this important class of judicial officers entirely independent during the period for which they were chosen. And it would be strange, indeed, if the power of removing them from office-at pleasure should be found to belong to the Legislature as incident to their acknowledged power of dividing old and erecting new counties (for which read 1 districts’), and the power of the Legislature to erect new counties must be exercised in subordination to the imperative provision of the constitution that justices .of the peace shall hold their offices for four years, unless removed for misconduct.” What can not be done directly can not be done indirectly by the exercise of the power to create now counties. 9 Cow. 640, reaffirms the principles of the two former cases in 1 and 6 Cow.

These decisions are entitled to all the more consideration because coming from New York, a pioneer State in introducing the system of elective judiciary, and from judges whose learning and ability have secured for their decisions respectful attention and authority wherever they are read. Did time serve we might show that the same or similar views have been announced by the courts of other States and by other tribunals of the highest authority. In our own State we are not unaware that in the abnormal, and, we might almost say, revolutionary condition which has prevailed for several years, there has been much loose and improvident legislation affecting these questions which is liable to serious objection, and has been fraught with great inconvenience. While we do not propose to press our inquiries or decision beyond what we deem appropriate to the occasion and the case at bar, we can' not avoid expressing the hope that those bad precedents, the outgrowth of disjointed times, may not be followed in future.

It has often been held here as elsewhere, and is the recognized doctrine of the law in Louisiana, that what can not be done directly can not be done indirectly. In the case of Downes vs. Towne, 21 An. 490, the court held that “ the Legislature had no power to legislate a judge or constitutional officer out of office, or to diminish or increase the term of •office as fixed in the constitution.” In the case of the State ex rel. Robinson vs. Dranguet, 23 An. 784, the court says that “ time and reflection have only strengthened the conviction expressed in Downes vs. Towne.” The court decided the case of the State ex rel. Collens vs. Clinton, Auditor, 26 An. 406, under the special provisions of the constitution for the parish of Orleans, and so expressly stated, and the court was divided. Without being called upon to give our assent to that decision, it is enough to say that it does not therefore and was not intended to vary the rule announced in the two former cases of Downs and Robinson just quoted. We have been referred to other cases than the one quoted by us, which, however, is the most recent decided by the late court where the effect of act seventy-one of 1874 was considered. Only one of them, the State vs. Daniel, can be considered as militating in any degree against the effect of the reservation of jurisdiction in the Second Judicial District. It was peculiar and exceptional, and related entirely to the composition of the juries; but, at all events, so far as in conflict with the views hereinbefore expressed, may be considered as overruled by the later case of Harrison, Collens, garnishee, before quoted, and must yield to the weight of authority.

It must be understood that we are not questioning the right and power of the Legislature to create new parishes and to abolish old ones, for though more or less difficulty attends the exercise of such power, it has always existed and been exercised in this as well as the other States of the Union. We are simply, showing why it was both constitutional and proper for the Legislature while annexing part of the parish of Jefferson to the parish of Orleans to reserve and retain the jurisdiction of the Second Judicial District Court to which it belonged over the territory so annexed. Had it been the pleasure of the Legislature, we have no doubt they might have made that reservation last only during the term of the then judge of that district, and such seems to have been the practice formerly in legislation of this character. This, however, was not done, and what was done was constitutional, and must be so held and decreed by us.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be annulled, avoided, and reversed; that the exception of the defendant to the jurisdiction of the Eifth District Court of the parish of Orleans be sustained and the suit dismissed, plaintiffs paying costs of both courts.

Since rendering the decree in this ease it has come to our knowledge that the court was in error of fact in considering the residence of the defendant and the situs of the mortgaged property to be within the territory annexed to the parish of Orleans by act seventy-one of 1874. The court of its own motion ordered a rehearing of this cause that the judgment may conform to the facts while adhering to the principles announced in the opinion accompanying the former decree. Both the residence and mortgaged property of defendant are in the Sixth Municipal District of New Orleans, which was formerly the city of Jefferson, and was annexed to and made part of the parish of Orleans by act No. 7 called session of 1870, instead of act No. 71 of 1874. We have already announced our opinion that it is competent for the Legislature to change the boundaries of parishes (though not of judicial districts) at any time. It therefore resulted from the principles of the opinion heretofore read in this case that the Sixth Municipal District being part of the parish of Orleans had already become subject to the jurisdiction of the district .courts of New Orleans prior to act forty-five of 1876, and that the attempt at that time to make it part of the Second Judicial District was in direct violation of the constitution.

The practical and legal difficulties in the way of dividing a parish in the formation of a judicial district forbid our sanctioning.such legislation. They have been well remarked upon by the judge a quo, and become more apparent in this instance in view of the provisions of the second and third sections of this act which provides for the election by part of the voters of the parish of Orleans — those of the Sixth and Seventh Municipal Districts — of a clerk whose election by the qualified electors of the whole parish is provided for by the eighty-third article of the constitution. The anomaly of having the sheriff, who is also a parish officer, act as the executive officer of a court having jurisdiction outside of its limits, and the difficulty in the composition of juries, have been sufficiently illustrated in the case of the State vs. Daniel, Opinion Book 44, p. 649. The exception of the defendant to the jurisdiction of the Fifth District Court of the parish of Orleans was properly overruled.

On the merits, we think the evidence sustains the judgment of the court below, which is therefore affirmed with costs of both courts.

On Rehearing.

The opinion of the court was delivered by

Marr, J.

This suit was brought in the Fifth District Court for the parish of Orleans on the seventh of April, 1876, on a promissory note, and to enforce the mortgage given to secure its payment, and final judgment was rendered against defendant, which was signed on the twenty-fifth of June, 1876. Defendant lived in the Sixth Municipal District of the city of New Orleans, and the property mortgaged was situated in that district. The only question is as to the jurisdiction of the court.

The Sixth Municipal District was formerly the city of Jefferson, in the parish of Jefferson, part of the Second Judicial District, which was composed of the parishes of Jefferson, St. Bernard, and' Plaquemines. By act No. 7 of the extra session of 1870, approved sixteenth of March, the limits of the parish of Orleans were extended to the lower line of the city of Carrollton, and that portion of the parish of Jefferson within the new boundary, including the city of Jefferson, was detached from the parish of Jefferson, annexed to the parish of Orleans, and incorporated in the city of New Orleans as the Sixth Municipal District.

This act is silent as to the jurisdiction to which the territory and the inhabitants thus detached from the parish of Jefferson and annexed to the parish of Orleans should be subject, and if no law otherwise provided the jurisdiction of the courts of the parish of Orleans the First Judicial District would necessarily have extended to all the inhabitants and to all the territory included within and constituting part of the parish of Orleans.

By act No. 71 of 1874, approved twenty-third of March, the city of Carrollton was detached from the parish of Jefferson and annexed to the parish of Orleans as the Seventh Municipal District of the city of New Orleans. The second section of this act provides that the portion of the territory of the parish of Jefferson thus detached and annexed to the parish of Orleans “shall be and remain and constitute part of the Second Judicial District of the State.”

In 1876, by act No. 45, approved eighteenth of March, the limits of the Second Judicial District were defined and extended so as to include the Sixth and Seventh Districts of the parish of Orleans, which, with the parishes of Jefferson, St. Bernard, and Plaquemines, were declared to compose the Second Judicial District.

The sessions of the Second Judicial District Court for the Sixth and Seventh Districts were to be held at the court-house in the Seventh District, and this court was declared to have exclusive civil jurisdiction in all cases except matters of probate, when the amount involved exceeds one hundred dollars, and unlimited exclusive jurisdiction in criminal cases. The act goes on to provide for the election of a clerk for this court by the qualified voters pf.the .Sixth and Seventh Districts at the next general election, for the term of four years. The sheriffs of the parish of Orleans were to be the executive officers of the court, the civil sheriff in civil matters and the criminal sheriff in criminal matters.

The jurors were to be drawn by the jury commissioners of the parish of Orleans from the entire number of registered voters of the Sixth and Seventh Districts. The residents of these districts were declared to be exempt from jury duty in the other courts for the parish of Orleans, and persons residing in other districts were- exempt from jury duty in that court.

No one questions the power of the Legislature to change the limits of the parishes, and to detach a portion of one parish and annex it to another parish, but the constitution imposes certain restrictions upon the power of the Legislature to change the judicial districts. The city of Jefferson and the city of Carrollton are no longer parts of the parish of Jefferson, and they are both components of the parish of Orleans. The question is whether they are subject to the jurisdiction of the courts of the First Judicial District, which is composed of the parish of Orleans alone, or to that of the court of the Second Judicial District, as defined by the act of T876.

.The constitutions of 1812, 1852, and 1864 are silent as to the power of the Legislature to change the judicial districts, and it would be to no purpose to inquire what was the practice under these several organic laws. By the constitution of 1845, article seventy-five, the first Legislature assembled under it was required to divide the State into judicial districts, “ which shall remain unchanged for six years, and be subject to reorganization every sixth year thereafter.” The number of districts to be not less than twelve nor more than twenty, and the term of office of the district judges was fixed at six years. Article seventy-seven.

The constitution of 1868, article eighty-three, provides that “ the General Assembly shall divide the State into judicial districts, which shall remain unchanged for four years.” The number of districts was to be not less than twelve nor more than twenty, and the district judges were made elective by the people at the general elections for the term of four years.

Although thé terms are different, it is obvious that the constitution of 1868 means, as that of 1845 intended, that the Legislature shall not have power to change the judicial districts during the term of office of the judges, and if no other reason justifies this restriction, it is necessary in order to preserve the independence of the judiciary by placing it out of the power of the Legislature to deprive a judge of his office by abolishing his district before the expiration of his term. The authority of the Legislature to establish new districts, as was done in 1870,1871, and 1874, and to. confer upon the Governor the power to appoint the judges, to hold until the next ensuing general election, may well be questioned.

It will be observed that the act of 1874, by which the city of Carrollton ceased to be part of the parish of Jefferson and became part of the parish of Orleans, guarded against any infraction of the constitutional restriction by continuing it under the jurisdiction Of the Second Judicial District, to which it had belonged for years, and- this feature of the act may be taken as the expression of the opinion of the Legislature that the territory might be detached from the parish of Jefferson and annexed to the parish of Orleans at any time, but that it could not be immediately detached from the Second Judicial District.

The Second Judicial District, composed of the parishes of Jefferson, St. Bernard, and Plaquemines, was established by the act of 1860, and it existed as then established at the time of the adoption of the constitution of 1868, which recognized and continued in force all laws not inconsistent with it, or not specially excepted. Article 149.

When the city of Jefferson was detached from the parish of Jefferson and annexed to the parish of Orleans, it would have ceased to be a part of the Second Judicial District, because it was no longer a part of the parish of Jefferson, but for the effect of article eighty-three of the constitution, which requires judicial districts to remain unchanged for four years. The act of 1870, No. 7, can not be considered as violative of the constitution in this respect, because it says nothing touching any change of the jurisdiction to which the detached territory had belonged. The act simply •extends the limits of the parish of Orleans so as to include the city of Jefferson, and amends the charter of the city of New Orleans. That part of the act which made the city of Jefferson part of the parish of Orleans took effect from and after its passage. If the change of jurisdiction which would otherwise have taken place immediately was prevented by article eighty-three of the constitution, a point which we do not now decide, because it is not properly before us, this effect would only be suspended until the expiration of the four years, that is, until the next ensuing general election, in November, 1872, when the term of the'judges of the district courts expired, and we entertain no doubt that from and after that date the city of Jefferson and its inhabitants fell within the jurisdiction of the courts for the, parish of Orleans, simply because the territory was a part of the parish of Orleans, and no law otherwise provided, no clause or feature of the constitution, prohibited this legitimate effect and consequence. There is no room for reasonable doubt or question that from and after the general election of November, 1872, up to the passage of the act No. 45 of 1876, suit might have been brought in the Fifth District Court for the parish of Orleans against a resident of the Sixth Municipal District for any cause of action falling within the competency of the court ratione materioB.

This act of 1876 must be so interpreted as to have effect aDd to be consistent with the power of the Legislature, if such interpretation be legally possible. The Legislature seems, by the terms of the act, to have designed to leave the Sixth and Seventh Districts in the condition in which they were at the time of its passage until the next ensuing general election in November, 1876. There could be no court without a clerk. This act undertakes to establish a court, but it makes no provision for the appointment of a clerk until the next general election, when a clerk was to be elected by the qualified voters of the two districts for the term of four years, the constitutional term.

By the act of 1874, as we have seen, the city of Carrollton continued to be part of the Second Judicial -District; and just there the act of 1876 left it. If the constitution, article eighty-three, prohibited the transfer of this territory to another district before the expiration of the term of office of the judge, these two acts do homage to that article, so far as the Seventh District, the city of Carrollton, is concerned. And if the effect of this act of 1876 was to be suspended until the next ensuing election, the Sixth District would have continued to be part of the First Judicial District, under the jurisdiction of the courts for the parish of Orleans, and the Seventh District would have continued to be a part of the Second Judicial District.

If these views be correct, the city of Jefferson, the Sixth Municipal District, was part of the First Judicial District in November, 1872, and so continued to be until November, 1876. The Fifth District Court for the parish of Orleans had complete jurisdiction of the person and property of defendant, and there is no error in the judgment appealed from.

It is not necessary for us to decide, we' desire to be understood as not deciding, whether the courts for the parish of Orleans had jurisdiction over the inhabitants of the Sixth Municipal District prior to November, 1872, nor do .we decide, because it is not necessary to decide, in this case, whether the act No. 45 of 1876 is constitutional. It is plainly susceptible of the interpretation which we have given it, that is, that its effect was suspended until November, 1876, as to the Sixth Municipal District; and, as thus interpreted, it is wholly inapplicable to the case before us, without effect upon the rights of the parties to this suit. This interpretation we are bound to adopt ut res magis voleat quarn pereat.

It is not necessary to express any opinion now as to the force and effect of this act from and after November, 1876, but we may add that the Legislature of 1877, by act No. 85, has repealed it, and transferred the Sixth and Seventh Districts to the jurisdiction of the First Judicial District, to take effect from and after the expiration of the present term of the judge of the Second Judicial District.

¥e are satisfied that the decree herein rendered on the thirtieth of April, 1877, is correct, and it remains unchanged.

Concurring Opinion.

Egan, J.

The parish of Orleans was made by law the First Judicial District of the State. If, then, the limits of the parish of Orleans are increased or diminished, the territory annexed to the parish is thereby annexed to the First Judicial District, or that taken away and added to another parish, which is at the time part of another judicial district, becomes thereby part of that other judicial district. The only limitation is as to the time when such act can have such legal effect, owing to the restrictions of the constitution growing out of the term of office-of judges, and the term of duration of judicial districts; and as the Legislature can not be supposed to have intended to pass an unconstitutional act, it must be interpreted as we said in the former opinion in this case, and as was said in the Twenty-third Illinois case, in subordination to the provisions of the constitution, articles eighty-three and eighty-four, referred to. On the other hand, where by legislative enactment territory is annexed to a parish which forms either the whole or part of another judicial district, it must be held that the Legislature intended, by annexation of the territory to the parish, to annex it to the judicial district in which the parish lies to which the territory is added. No other is a reasonable conclusion, and such, we think, is the necessary legal effect of such legislation, and we must hold that the Legislature so intended. We know of no rule of interpretation which requires us to understand or interpret legislation on this subject otherwise than we would in another, i. e., that the Legislature intended by the act of annexation to the parish to change it to the district in which is the parish of which it is made part, and take it away from the district of which the parish from which it is taken made a part. As we before said, however, this is done subject to the limitations named, and while for merely municipal purposes the jurisdiction of the parish to which the territory is added attaches so soon as the act .goes into operation, the other effect of changing the judicial district is postponed, as we held in the former opinion, till the close of ■ the term of the judge presiding at the time of the annexation. The Legislature can as well change the limits of a judicial district by passing an act which has that necessary legal effect as by using the precise terms and declaring that such was their intention. This is what was meant in our former opinion in this case.

I concur in the decree and opinion of Mr. Justice Marr in the rehearing of .this case.


author: DeBlano, J.

text:
    No. 6668.
    Carondelet Canal and Navigation Company vs. Narcisse Parker, Master and Owner of Schooner Victoria No. 2.
    The State may incorporate a company to convert an unnavigable, into a navigable stream of water, and, under the express or implied consent of Congress, may authorize the corporation to assess a charge for the use of tho stream, on all vessels which shall thereafter navigate it. And such a charge is not a toll, or duty, forbidden by the constitution of the United States, but is a compensation for labors actually performed by the corporation, and availed of by said vessels.
    The consent of Congress, by which the State is authorized to empower one eorpora- ' tion to assess a toll for performing certain services, will, unless expressly .withdrawn by Congress, inure to the benefit of any subseauent corporation chartered by the State to perform and which does perform said services.
    APPEAL from the Fourth Justice of the Peace, parish of Orleans. Hernandez, J.

      C. E. Schmidt and H. D. Ogden, for plaintiffs and appellants,

      Lougue & Fernandez, for defendant.
   The opinion of the court was delivered by

DeBlano, J.

Plaintiff claims from defendant two dollars and twenty-five cents for toll upon, the admeasured tonnage of schooner Yictoria No. 2, for a pass granted to said schooner out of Bayou St. John.

The defendant denies the right of plaintiffs to recover, for this:

First — That the Bayou St. John is a natural navigable stream emptying into Lake Pontchartrain and connected with the Gulf of Mexico, and is public property, free to the use of all citizens of this and other States of the Union, who have a natural right to navigate said stream with their vessels and to moor the same to the banks thereof.

■ Second — That by the act of- Congress admitting Louisiana as a State into the Union, it was made an express proviso and condition that the river Mississippi and the navigable rivers and waters leading into the same and into the Gulf of Mexico, should be forever common highways free to the inhabitants of all the States and Territories of the United States without tolls or duties therefor imposed by said State. And that by section 5251 of the Revised Statutes of the United States all navigable rivers and waters in the former Territories of Orleans and Louisiana are made forever public highways.

Third — That the charge sought to be collected is a duty on tonnage imposed-by the State of Louisiana without the consent of Congress, and is within the prohibition contained in so much of section ten, article one, United States constitution, as provides that “no State shall, without the consent of Congress, lay any duty on tonnage.”

From the decree of the lower court rejecting the demand plaintiff has appealed.

In the pleadings and the printed arguments two 'principal questions are presented:

Firsh — Was Bayou St. John a navigable stream before it was improved by plaintiff and those to whom the plaintiff has succeeded ?

Second — If it was navigable, has Congress authorized the collection of toll to pass in' and out of it ?

Bayou St. John empties into Lake Pontchartrain. In the latter part of the eighteenth and the commencement of the nineteenth century there was a sand-bar at the mouth of the bayou, and, at times, the water was so low on the bar that even a canoe had to be dragged over it. At that date the bayou was not, as it is now, linked by a canal to the city of New Orleans. It thus remained a useless artery between the lake and the city, until the Baron de Carondelet ordered the opening of the canal to which his name was given.

The projet of the Spanish Governor was but partly executed under his administration, and when Louisiana became an American Territory it was only with the smallest barks that any one could venture on the few inches of water which had been drawn from the bayou into the inconsiderable canal dug by the baron’s order. Except at long intervals and exceptional periods the entrance from the lake into the bayou, from the bayou into the canal, was then impassable for such schooners as that of defendant.

In order to complete the work begun under De Carondelet the Territorial Council, in 1805, granted a charter to the Orleans Navigation Company, empowering that company to improve Bayou St. John, and, under specified conditions, to claim and collect toll from the boats and vessels entering said bayou.

In 1821 the Legislature passed a resolution requiring the Attorney General to issue out of the First District Court a scire facias, to ascertain the constitutional validity of said company’s charter, and whether, if constitutional, that charter had not been violated by the company.

In obedience to that resolution a sure was filed in the name of the State against the Orleans Navigation Company; the trial of that memorable suit was marked by a display of knowledge. and talent which would have enlisted the attention of the ablest jurists of any age or State. The constitutionality of the charter was vindicated and acknowledged. 11 M. 309.

• In the report of that case we have found a plain recital of the obstacles which the company had to remove, and from the many pages of that recital we quote at random:

“ Until the company had displaced the obstructions at the mouth of Bayou St. John, vessels frequently, when loaded with pitch, tar, and cattle, were obliged to throw their cargoes overboard. * * The inhabitants of the other side of the lake were some times a month at home waiting for a rise on the bar. * * These flatboats, drawing from twelve to fourteen inches, were for days aground. * * A number of barges were kept expressly for unloading vessels to enable them to cross the bar. * * The expense for unloading a vessel of twenty tons was thirty dollars, and the cargo was often damaged.' * * Those who before the improvement transported goods or produce would willingly have paid double the duties exacted by the company for the advantages derived from those improvements. * * In 1796 there were two or three schooners in the basin of the canal, and it was so filled up that they remained there two or three years before they could get out. * * The navigation had then entirely ceased except in extraordinary high water; * * The toll claimed by plaintiff is less than such vessels had to pay to unload their freight. * * ■ The repairs of the damage done by a crevasse cost the company twenty-three thousand dollars; by a storm twenty-five thousand dollars.”

In that case as in this it was urged that the toll authorized by defendant’s charter had not been laid with the consent of Congress. To that objection this court answered that in such matters the constitution of the United States does not require an express consent from Congress, and an implied one was to be inferred from the repeated acts of that body adding to the means provided by the Territorial Legislature for the completion of the intended improvements.

That all the navigable rivers in the State are public highways is not disputed. Nor can it be disputed that such highways are free to the citizens of the United States without any impost tax or duty therefor; but in the Sense of the congressional statute, when and under what circumstánces is a river to be considered as navigable? Is it navigable though closed at its mouth and closed at its source; though full of stumps and logs ? Is it navigable when, to cross its ten or twelve sandbars, the cargo of a vessel has to be thrown overboard; when these bars impede the course of even the hunter’s canoe ? Is it navigable whenever, at some point, it contains a sufficient quantity of stagnant water to float any bark, though, as a prisoner in a dungeon, that bark can only move from a restricted center to an impassable obstruction, beyond and back of which there are other and as impassable obstructions ?

“ Une riviere est navigable,” said Marcadé, quand elle peut porter des batiinénts; elle est flottable, dans le sens de notre, article, quand elle peut porter des trains ou radeaux; les rivieres flottables a bouches per-dues ne font partie dii domaine public. Une meme riviére peut étre navigable dans une partie, flottable avec radeaux dan's une autre, et non flottable dans la partie supérieure de son cours.” Marcadé, vol. 2, pp. 381, 538. ' -

' The congressional enactments we are told stipulate, not merely for the freedom of navigation, but also for an exemption from any impost, tax, or duty. As remarked by Mr. Justice Martin, the organ of the court in the case already alluded to, those words, tax, impost, and duty, “ must be confined to the idea which they commonly present to the mind, ex-actions to fill the public coffers, for the payment of the public debt and the formation of the general welfare of the country, not to a contribution to pay the expenses of building bridges, erecting causeways, or removing obstructions in a water-course, which are to bo paid by the individuals who enjoy the advantages resulting from such labor.” 11 M. 309.

No State is prohibited by either a clause of the Federal constitution or a congressional statute from improving the navigation of the rivers which flow within its limits; and, as decided by the highest court of the republic, the imposition of a reasonable toll'for the use of an improvement of the navigation is not a violation of the ordinance of 1787, which provides:

“ The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free 'as well to the inhabitants of said territory as to the citizens of the United States and those of any other State that may be admitted into the confederacy, without any tax, impost, or duty therefor.” 3 McL. 226; 6 McL. 237.

In 1852 this court decided that, the Orleans Navigation Company had forfeited its charter, and declared it dissolved and extinct. 7 An. 679.

In 1857, on the sixteenth of March, tlio corporation prosecuting this suit was created by an act of the Legislature of this State. The powers under which tlio toll sued for is claimed are conferred by section ten of that act, which reads as follows:

“ Be it further enacted, etc., That this corporation may and shall take, possess, hold, and enjoy all and singular the rights, privileges, franchises, immunities, power, and authority which wore at any time granted to, received, possessed, enjoyed, and exercised by the late Orleans Navigation Company, under sections nine, ton; cloven, twolve, and thirteen of an act entitled ‘ an act for improving tlio internal navigation oi the Territory of Orleans,’ approved July 3,1805, as well as those copied at this time by the said New Orleans Canal and Navigation Company, by act approved March 12,1852,” etc.

Defendant contends that, “ assuming the first company was authorized by Congress, it does not follow that in 1857 the Legislature had the sanction of that body to create a new corporation and confer upon it the privileges allowed to its predecessor by the original charter.” The consent of Congress was given less to the company than to the State and the enterprise, and to whomsoever and whatever given, that consent never was withdrawn. The State acted under it and granted charters; under it rights were acquired, which neither Congress nor the State could divest. Of that great enterprise the administration alone was confided to the Orleans Navigation Company; that administration and the privileges thereto attached that company has forfeited and lost; but the dissolution of the corporation did not affect, condemn, and destroy the enterprise, and the thrice-expressed congressional sanction protects and guards the charter of 1857.

As on the trial of 1822, the evidence in this case shows, far beyond the reach of any rational doubt, that, for public purposes, as one of the highways of intercourse between States, as a commercial avenue, Bayou St. John was not navigable, and that it was rendered navigable by the efforts and with the funds of plaintiff and its predecessor. Toward the lake it had a natural gate, but it was nearly closed; that gate was opened and kept open by those companies. Toward the city they have widened and kept unobstructed a communication which before was choked with obstructions, and as shallow as insignificant. What they have not actually created they have permanently improved.

Weré it not for the works of the plaintiff, for the hundreds of thousands of' dollars spent by it and its predecessor, were it not for its daily expenditures, its vigilance, its dredgeboats, its incessant care, were it riot for the channel of two thousand feet dug at the cost of those companies from the bank of the lake to the light-house, the smallest barks would have to fold their sails at the mouth of Bayou St. John, and there, as in an antechamber, wait for the irregular rise of the waters of the lake.

Plaintiff has fairly complied with every obligation of its charter. It has enlarged, deepened, straightened, and cleaned the bayou; it has to constantly struggle against the damaging effects of the winds and waves on the embankments and the channel built and dug in the lake. It has aided and increased, to an incalculable extent, the movement of navigation on and through said lake and bayou; it has lessened the expenses and perils of that navigation; it has created an additional harbor, and is now claiming, not an impost, not a tax, not a duty, but a reasonable compensation for a real service, for a service already rendered and which the company continues to render.

The State in granting a charter to plaintiff, and. plaintiff in the exercise of its privileges under the charter, have violated no constitution, State or Federal, invaded no highway, interfered with no right, private or public; but, on the contrary, the State by her law, the company by its efforts, have opened to the vessels of every nation another, a safe, an important route, and those who take that route are bound, in law andin ■ equity, to pay for the use of improvements -which are the result of not less than seventy-two years of an active, costly, and intelligent labor. .

To the protection of that invaluable and honest enterprise the faith of ■the republic and the faith of the State are pledged.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be and it is hereby annulled, avoided, and reversed, and, proceeding to render such judgment as should have been rendered in and by said court—

It is further ordered, adjudged, and decreed that the Carondelet Canal :and Navigation Company do have judgment against and recover .of Nar.cisse Barker, master and owner of the schooner Yictoria No. 2, the •sum of two dollars and twenty-five cents with the costs of appeal and of •the lower court.

*This case was decided at Opelousas by consent of litigants.