text:
    Robert Leech v. Harvey Guild.
    Where a foreigner owned property in this State, and by the laws of his own country there existed no community partnership between husband and wife — Held: That, prior to the passage of the Act entitled “An Act relative to the property of non-resident married persons in this State,” a community would not exist hero, liis wife would not acquire a legal mortgage on his property in this State, and the law would accord none to his minor children.
    APPEAL from the Fourth District Oourt of New Orleans, Price, J.

      Edward Raiole, for plaintiff.

      Durant & Hornor, for defendant and appellant.
   Duffel, J.

The defendant is appellant from a judgment of the District Oourt rejecting his reconventional demand, and condemning him to complete, as purchaser, and in accordance with a private contract-, the sale of a lot of ground and house in the city of New Orleans, on St. Charles Street, between Girod and Julia Streets, No. 21J.

The defendant admits that he is in possesion of the property under the contract, but he alleges that he has been prevented from performing his part of the obligation by the failure of the plaintiff to offer him-a good and unincumbered title.

“ That plaintiff was formerly a resident in this city, and acquired real estate here, while he was married. That his wife is now deceased, and was so at the date of respondent’s purchase, and left minor children who are now living. That the property in question is, under Louisiana laws, subject to the claims and tacit mortgage of these minor children, and until plaintiff takes such proceedings as will relieve the property &c. from this tacit mortgage and claims, he cannot comply with his obligations.”

We gather from the evidence, that the plaintiff is an unnaturalized Englishman ; that he came to Louisiana, in New Orleans, about the year 1835, as a cotton commission merchant, to buy cotton for spinners and manufacturers in England ; that he made yearly visits to New Orleans up to abont the year 1850, when he closed all his business relations in New Orleans or Louisiana; that those yearly visits were during the winter business season, from November to May, when he would return to England, Ms home, where he has always resided, and still resides ; that he never acquired a domicil in Louisiana, and repeatedly said that he would never do so. The plaintiff married in Philadelphia, in the year 1847; his wife was a native of Pennsylvania; took his wife to England two mouths after their marriage; they spent the winters of 1847,1848 and 1849 in New Orleans; they went to England in 1850, and lived there in his own house; afterwards, they came to New York, where his wife died some five years ago; they had three children who are all living with him in England : one was born in Philadelphia, one in England, and one in New York.

The plaintiff purchased the property in question in 1848.

It is admitted that, by the laws of'England, there exists no community partnership between husband and wife.

No rebutting testimony was offered.

We are constrained to say that the plaintiff never acquired a residence in this State; hence, that there did not exist a community of acquets and gains between him and his wife; that his wife never acquired a legal mortgage on his property in this State, and that the law accords none to his minor children. Mandeville et al. v. Succession of Houston, lately decided; Succession of Franklin, 7 An. 395; C. C. 2369, 2370; Jose Pratts v. His Creditors, 2 R. 501.

The Act entitled “ An Act relative to the property of non-resident married persons in this State,” approved March 18th, 1852, p. 200, cannot control the decision of this case, as the property in question was acquired in 1848, prior to ’ the date of the said Act.

Judgment affirmed, with costs.

Land, J., absent.


source: Caselaw Access Project

author: Merrick, O. J.

license: Public Domain

text:
    Harmon Doane v. R. L. Adams & Co.—E. Blessy, Intervenor.
    ■Where parties purchase on joint account, and for speculation, a lot of goods, with the understanding that they shall share equally the profits and losses which may result from the sale thereof, the advances and expenses are to he first paid, before there can he any division of the profits. It partakes of the nature of a partnership.
    APPEAL from the Sixth District Court of New Orleans, Iiowell, J.

      G. A. Breaux, for plaintiff and appellant.

      Hayes <& Adams, for defendants.
   Merrick, O. J.

“ The history of this controversy is as follows : “ On the 18th of May, 1859, the intervenor, E. Blessy, and J. W. Boyle, purchased on joint account, and for speculation, 175 bales of India bagging, with the understanding that they should share equally the profits or losses which might result from the sale thereof. The bagging was paid for by E. Blessy advancing in cash the sum of $875, and for the balance of the price the joint draft of said Blessy and Boyle, drawn on and accepted by the defendants, R. L. Adams & Co., was given. The India bagging was then placed in the hands of R. L. Adams & Co., to be sold for the joint account of the said Blessy and Boyle.

On the 19th of July, 1859, before the bagging had been sold, J. W. Boyle drew a draft in favor of Ziarmon Doane, the plaintiff, on R. L. Adams <& Co. for whatever amount might be due him (Boyle), after the sale of the India bagging. In the month of August thereafter, the 175 bales of Idia bagging were sold by R. L. Adams & Co., from which sale resulted a profit to Messy and Boyle of $436 20 ; one half of said amount was paid by R. L. Adams efi Co. to the plaintiff, Doane, on the draft of J. W. Boyle in his favor.”

The following is the draft drawn by Boyle:

New Orleans, July 19th, 1859.
“ Please pay to Harmon Doane, or order, whatever amount may be due me after the sale of 175 bales of India bagging now in your hands on joint account with E. Blessy, and oblige • Your Obdt. Servt..
(Signed) ' • J. W. Boyle.”
To Messrs. R. L. Adams <& Co.”

(On the reverse of said draft) :

“ Beceived, New Orleans, September 8Lh, 1859, from Messrs. R. L. Adams <& Co., the sum of two hundred and nineteen dollars and eighteen cents on account of the within draft.
$219 18. (Signed) Harmon Doane.”

Under this order, the plaintiff claims in the hands of Messrs. R. L. Adams & Co., in addition to the one-half of the not profits which have been paid him, also the one-lialf of the $875 advanced by Blessy. The latter claims to be reimbursed the amount of said advancement.

Judgment having been rendered against the plaintiff’s pretensions, he appeals.

The case turns principally upon the testimony of J. W. Boyle. He says : “ I am the party from whom Mr. Blessy bought the India bagging on or about the 18th of May, 1859, and the margin paid on the bagging was $875. It was paid by check of Mr. Blessy — -his money. It was paid as a margin on the same bagging in question here, and which was placed in the hands of R. L. Adams <& Co., to be sold on joint account.”

Cross-examined :

“ The money was placed for joint account. Mr. Blessy has asked me for the payment some short time after the sale of the bagging. He called upon me for payment of the half of this $875. I have not paid the entire amount. I paid $200 on account of what I was indebted to Mr. Blessy. This half of $875 formed a portion of the indebtedness to Mr. Blessy.”
“ Mr. Blessy knew a very short time after the draft sued on was given, that it was so given. He objected to my having given the draft a short time after. We had several conversations about it. Cannot recollect whether it was before or after the payment on this $475 that he objected to the draft.”

Be-examined:

^ “ At the time I made this payment of $200 on account of the indebtedness to Blessy, I owed him something in the neighborhood of $1000.' I paid the $200 on account of my entire indebtedness to him.”

It appears to us, that in an adventure of this kind, the understanding of the parties is, that the advances and expenses are to be first paid before there can be any division of the profits. It partakes of the nature of a partnership. Dig-., lib. 17, tit. 2, lex 5. Thus, Boyle was to be paid the price of the India bagging, R. L. Adams <& Co. their expenses for insurance, storage,.interest, commission, &c., and Blessy his advances. When all this had been deducted from the gross amount of sales, the amount due'Boyle was ascertained by dividing the remainder fatQ two equal parts. This amount has already been paid to his assignee, and more than this Boyle would not be heard to demand; neither can his assignee claim it ex bono et aequo.

There is nothing in the testimony which leads ns to suppose that Bless;/ had waived his rights, as a joint owner of the bagging, to be paid his advances before there could be any division of the profits. 0. C. 2861,1271,1272.

Judgment affirmed.

Land, J., absent.


author: Duffel, J.

text:
    Robert H. Bowles v. Mrs. M. M. Turner et al.
    ■Whore it is sought to hold a marriod woman liable on her note, given with the authorization of her husband, it is incumbent oil the party seeking to recover, to show that the contract mured to hor • separate advantage, or that it related to her trade, if she acted as a public merchant.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Clarice é Bayne, for plaintiff and appellant.

      Jas. Q. White, for defendant.
   Duffel, J.

It appears that Dr. Parrot, having bought from the firm of Sickles & Co. medecines, gave in payment his three notes made to the order of, and endorsed by Joseph P. Turner, the husband of the defendant, Mrs. M. M. Turner; that Mrs. M. M. Turner was then separated in property with her husband, and kept on her own account public carriages for hire; that one of said notes was transferred to the plaintiff, who, in renewal thereof, took the note sued on, which reads as follows :

“ $500. New Orleans, February 26, 1858.
“ Twelve months after date I promise to pay to the order of W. J. Parrott, five hundred dollars for value received.
(Signed) M. M. Turner.
“ Authorized by me. (Signed) Joseph P. Turner.
(Endorsed) W. J. Parrott,
Joseph P. Turner,
Robt. IT. Bowles.”

The defence set up by the wife is, that she signed the note without the authorization of her husband ; that she never received any consideration for the same; that it did not inure to her benefit; and that she is not a public merchant.

The husband admits his liability, but avers that he signed the note as a party thereto, and that the words “ authorized by me ” were subsequently interpolated.

The District Court rendered a judgment of nonsuit as to the defendant, Mrs. M. M. Turner. The plaintiff appealed.

Apart from the want of authorization pleaded by the wife, and the special defence made by the husband, and which was not explained, it was incumbent on the plaintiff to show that the contract inured to the separate advantage of the wife, or that it related to her trade, which was not done. C. C. 2412; Eliza J. Erwin v. James McCalop et al., 5 An. 173; ibid 495.

Judgment affirmed, with costs.

Land, J., absent


text:
    A. A. Nevins & Co. v. W. F. & G. Chapman.
    Iii an action against the acceptor of a draft, where the defence sot up is want of consideration, tlio burden of proof rests upon the defendants to show such want of consideration.
    "Whore an agreement had boon entorod into between parties, to ship flour from Cincinnati to How Orleans, to bo sold for a profit, and it appeared that such agreement had originated in a conversation, in which one of the parties urged, as a reason for the safety of such a transaction, the fact of his having English ordors in hand, into which he could put the flour m case the market should have declined, on its arrival at Hew Orleans, to a point that would pay no profit — Held: That there is nothing necessarily immoral in such an agreement, within the meaning of Articles 1887 and 1889 of the Civil Code.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      Singleion & Clack, for plaintiffs.

      Simonds <& Fenner, for defendant and appellant.
   Merrick, O. J.

This suit is brought by the plaintiffs, as agents of William, Powell. Jr., to recover §420 87 upon defendant’s acceptance of a draft for that amount drawn by plaintiffs to their own order upon defendants.

Judgment was rendered in favor of the plaintiffs, and one of the defendants, W. F. Chapman appeals.

The defence in this coitrt is the want of consideration, and that the contract was against public order and good morals.

The burden of proof being upon the defendants to show the want of consideration, and it appearing affirmatively that the consideration of the acceptance was their proportion of a loss upon certain flour shipped from Oiucinnati, there is no basis for the first ground urged in defence.

The other ground rests upon the answers of .the real plaintiff, Wm. Powell, Jr., to interrogatories. He says, The origin of the transaction was a conversation with Mr. Chapman, when he was here, on the 7th of November, in which he suggested a shipment of flour, and urged, as one reason of its safety, the fact of his having English orders in hand, into which he could put the flour, in case the market should have declined, on its arrival at New Orleans, to a point that would pay no profit. This reason, and the waiving of New Orleans inspection, as stated in letters Nos. 3 and 4, induced me finally to make the shipment.”

The appellant contends, that the contract was immoral, because there was a promise, in case of failure, to throw the loss upon innocent third parties, and he cites Art. 1887 0. 0. See also 1889.

■ There is nothing necessarily immoral in the agreement, so far as we can perceive. It does not appear that the flour was to be shipped on account of the English orders above the market value, which would have been immoral. The conversation might well he understood to mean, that if the flour should happen to fall to the price limited by the English houses, that then it should he used to fill those orders without delay, and as defendant held such ordors, that the flour could be sent forward without any great risk of loss.

Judgment affirmed.


author: Land, J. Vooriiies, J., Duffel, J., Buchanan, J., Merrick, C. L,

text:
    State of Louisiana v. The City of New Orleans.
    The Act of the Legislature approved March 19th, 1857, entitled “ An Act relative to elections in the parish of Orleans,” which provides for the appointment of a Superintendent and other officers, is in violation of the Constitution.
    This Act pertains to the body of laws for the internal government of the State, and does not form a part of tho police or government of the city of New Orleans, and does not, therefore, contravene Art. 124. of the Constitution.
    The clause in this Act which requires the city of New Orleans to pay one-half of the expenses incurred to carry into effect the provisions of the same, is not in violation of Art. 123 of tho Constitution, which provides that11 taxation shall be equal and uniform throughout the State,” &c.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      E. W. Moise, Attorney General, for plaintiff and appellant.

      J. J. Michel, for defendant.
   Land, J.

This suit was instituted for the recovery of the sum of two thousand nine hundred and fifty-live dollars, the same being one-half of the expenses incurred for the purpose of carrying into effect the provisions of the Act of the Legislature entitled “ An Act relative to elections in the parish of Orleans,” approved March the 19th, 1857.

The allegations of the petition are admitted to be true ; but it is contended that the Act of the Legislature above mentioned is contrary to and violates Art. 124- of the State Constitution.

This Article of the Constitution is in these words :

“ The citizens of the city of New Orleans shall have the right of appointing the several public officers necessary for the administration of the police of the said city, pursuant to the mode of elections which shall be prescribed by the Legislature; provided that the Mayor and Recorders shall be ineligible to a seat in the General Assembly ; and the Mayor, Recorder and Aldermen and Assistant Aldermen shall be commissioned by the Governor as Justices of the Peace, and the Legislature may vest in them such criminal jurisdiction as may be necessary for the punishment of minor crimes and offences, and as the police and good order of said city may require.”

It is supposed that the Act of the Legislature in question violates Article 124 of the Constitution, because the power to administer and to carry into effect the provisions of said Act is vested in certain State officers, and not in the police officers of the city of New Orleans.

To maintain this position, it is necessary to show that the Act of 1857, relative to elections in the parish of Orleans, enters into and forms a constituent part of the police of the city of New Orleans in the sense of Article 124 of the Constitution ; for, if said Act forms no part of the Police of the city of New Orleans, then there is no ground on which a right to the administration of said Act, through the police officers of the city, can be claimed, because the right of administration through the police officers is expressly limited, under the Constitution, to the police of the city, and does not extend to the internal regulations or police of the State.

A correct determination of this constitutional question, therefore, mainly depends on the interpretation of the words “ for the administration of the police of said city,” and especially of the word police ” used in Art. 124 of our Slate Constitution. And in giving- to this language its proper interpretation, we are bound by that rule of construction which declares that the words of a law are generally to be understood in their most known and usual signification, for in this sense the law-maker is presumed to have used them to express his will.

What then is the most known and usual signification of the word police ” used in Art. 124 of the Constitution ? It means, first, the government of a city or town ; the administration of the laws and regulations of a city, or an incorporated town or borough, as, the police of London, New York or Boston. The word is applied also to the government of all towns in New England, which are made corporations by a general statute for certain purposes. It means, secondly, the internal regulation and government of a kingdom or State; and, thirdly, it signifies a body of civil officers, especially in cities, for enforcing the laws. Webster’s Dictionary, verbo police.

It is evident that the word “ police,” as used in Art. 124 of the Constitution, does not mean the internal regulation and government of the State of Louisiana ; and it is equally evident, that it does not signify a body of civil officers for enforcing- the laws in the city of New Orleans ; and consequently, the only signification which can be given to the word as used in Art. 124 of the State Constitution is, the government, or laws and regulations established for the government of the city of New Orleans as a civil corporation.

These laws, which constitute the police of the city, form a distinct body or code of laws from those enacted for the internal government of the State, and to these laws the right of administration, through the police officers of the city, is exclusively and expressly limited by Art. 124 of the Constitution.

If the foregoing propositions are true, that is to say :

1st. That the word police,” used in said Article of the Constitution, signifies the laws and regulations enacted for the government of the city of New Orleans, as a civil corporation ;

2dly. That these laws and regulations, constituting the police of the city, form a distinct body or code of law’s from those enacted for the internal regulation and government of the State of Louisiana; and

3dly. That the right of administration on the part of the city, through its officers, is expressly limited by the Constitution to the laws which constitute the police of the city, or its municipal government; — ■

Then, the only remaining consideration in the decision of this question, is, whether the Act of 1857, relative to elections in the parish of Orleans, forms a part of the police or government of the city of New Orleans as a civil corporation ; or, whether the Act pertains tc and forms a part of the body of laws enacted for the internal regulation and government of the State.

It must be premised, that the Constitution of the State confers on the city of New Orleans no powers of government whatever, and that all the police powers of the city are exclusively derived from the enactments of the Legislature, and that no power does or can enter into and form a part of the police or government of the city, without the previous assent and sanction of the legislative department of the government.

And it must be further premised, that, as the police of the city of New Orleans is a mere creature of the statutes, that the Legislature of the State, the' sovereign law-making power, has a right to change, to modify, or to abrogate the same, if it should be pleased to exercise such a right in the interest of the commonwealth.

The object of the Act of 1851 was to regulate general elections and to support the privilege of free suffrage in the parish of Orleans; and as these powers have never been delegated to the city as a civil corporation; and as the Act itself does not purport to confer any such power, but, on the contrary, is wholly repugnant to the existence of any such power in the police or government of the city, it necessarily results, as a legal and logical conclusion, from the premises, that the Act pertains to the body of laws for the internal government of the State, and does not form a part of the police or government of the city of New Orleans, and consequently, that the asserted right of administration of the Act through the police officers of the city, does not exist under Art. 124 of the Constitution, and is entirely without any foundation whatever, either in the organic or statute law of the State.

The right of the State to administer its laws, through its own officers, at all times and in all places, within its territorial limits, is a prerogative of sovereignty, of which the State cannot be divested, without being deprived of an essential attribute of sovereign power, and the exercise of this right, it may be affirmed, is especially enjoined by the Constitution itself, which requires the Executive to take care that the laws be faithfully executed.

This right of administration has been constantly exercised by the State, through its own officers, in the city of New Orleans, without complaint or remonstrance on the part of the municipal authorities. And this suit, it is believed, affords the first instance of an objection to the exercise of such a right by the State, on constitutional ground, in the name of the city.

It is also supposed, that the Act of the Legislature in question violates Art. 123 of the Constitution, because it requires the city of New Orleans to pay one-half of the expenses incurred to carry into effect the provisions of the same. This Article of the Constitution is in these words :

“ Taxation shall be equal and uniform throughout the State. All property on which taxes may be levied in this State shall be taxed in proportion to its value, to be ascertained as directed by law. No one species of property shall be taxed higher than another species of property of equal value, on which taxes shall be levied; the Legislature shall have power to levy an income tax, and to tax all persons pursuing any occupation, trade or profession.”

The expenses incurred for the purpose of carrying into effect the provisions of the general election laws of the State, have been and are now paid by the respective parishes, under legislative enactments which have never been considered to be in violation of Art. 123 of the Constitution. And, besides, as'a mere question of fact in the case before us, there is no evidence to show that the payment of the expenses demanded in this suit, under the Act of 1851, relative to elections in the parish of Orleans, will operate, directly or indirectly, either unjustly or unequally, upon the city, and, consequently, the case on this point is against the defendant, for the want of proof to sustain it.

In the suit of St. Martin v. The City of New Orleans, 14 An. 113, this court held the defendant liable, under an Act of the Legislature, for the payment of the salary of the plaintiff, who had been appointed Register of the names and residence of all the qualified electors of the city of New Orleans ; and if the city was liable in that case, it is also liable in this, for on principle, no distinction can be made between them, favorable to this ground of the defence.

Various other constitutional objections have been made to the Act of 1857, relative to elections in the parish of Orleans; but as the members of the court are unanimously of the opinion that these objections are not tenable, it is unnecessary to give them here any further notice or consideration.

For the reasons stated, it is ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed; and it is now ordered, adjudged and decreed, that the plaintiff, the State of Louisiana, recover of the defendant, the city of New Orleans, the sum of two thousand nine hundred and fifty-five dollars, with interest thereon at the rate of five per cent, per annum, from the 30th day of December, 1858, with costs in both courts.

Vooriiies, J.,

concurring. This case presents for adjudication a pure question of law, — the'constitutionality or unconstitutionality of the Act approved the 19th March, 1857, entitled An Act relative to elections in the parish of Orleans.”

The answer contains a general allegation of unconstitutionality, without referring to the constitutional provisions which are supposed to be invaded; but these have been pointed out on the argument and in the brief of defendant.

I. The Constitution guarantees the right of bail by sufficient sureties, unless for capital offences where the proof is evident, or presumption great, or unless, after conviction for any offence or crime punishable with death, or imprisonment at hard labor. It further provides that “ the privilege of the writ of habeas corpus shall not be suspended, unless when, in case of rebellion or invasion, the public safety may require it.” Art. 104.

The Act of 1857 expressly recognizes the right of any party arrested, to the full benefit of the writ of habeas corpus, and carries out faithfully the provisions of the organic law in that respect. Such being the case, it is somewhat strange that this should be set up as a matter of grievance. Acts 1857, p. 280, § 26.

IT. The 58th Article of the Constitution requires all commissions to issue in the name and by the authority of the State of Louisiana, to be sealed with the State seal, and to be signed by the Governor.

It is objected that, by virtue of sections 22 and 27 of the Act of 1857, the deputies, instead of being commissioned by the Governor, derive their appointment from the Superintendent.

The Article 58 must be interpreted with reference to Article 47, which provides that:

“ He (the Governor) shall nominate, and by and with the advice and consent of the Senate, appoint all officers whose offices are established by this Constitution, and whoso appointments are not herein otherwise provided for; provided, however, that the Legislature shall have a right to prescribe the mode of appointment to all other offices established by law.”

The office of deputy of elections, conceding it to be strictly an office, is not established by the Constitution, but by statute. The Governor, consequently, is not called upon, under the provisions of the organic law, to commission the deputies of the Superintendent of Elections.

III. ‘‘ Vested rights cannot be divested, unless for purposes of public utility, and for adequate compensation previously made.” Art. 105.

The defendant contends, that this Article is violated by the 14th section, which provides : “ That no grog-shop, or'place where liquor is sold, shall be used as an election poll in the parish of Orleans; but the said Board is hereby authorized to use for that purpose any building belonging to the city of New Orleans or parish of Orleans; or, if necessary, to rent proper buildings for the occasion.” Acts 1857, p. 277, §14.

This objection presents no serious difficulty. In the first place, the statute does not divest the vested rights of the parish or city in the premises. In the second place, it is optional with the municipal authorities, and not obligatory upon them, to permit these buildings to be used; aud if they object, then, under the terms of the statute, the Commissioriers may, “ if necessary, rent proper buildings for the occasion.” And, in the third place, if this feature of the law were unconstitutional, the defendant’s remedy would be, to resist the action of the Commissioners when the latter would attempt to - carry out the obnoxious provision, and not, after acquiescing, to assail the whole Act in every other respect.

IV. It is contended “ that the Act relative to elections in the parish of Orleans, is unconstitutional, because it confers upon the Attorney General of the State, police and executive powers; whereas, by the Constitution of the State, the powers of that functionary belong properly to the judiciary department of the government.” We are referred to Articles 1, 2 and 14, upon this subject-matter.

It is true that the offices of Attorney General and of District Attorneys are classed under title IV, Judiciary Department; but the first Article under this title is explicit: “ The judiciary power shall be vested in a Supreme Court, in such inferior courts as the Legislature may, from time to time order and establish, and in Justices of the Peace.” Art. 61. See also Arts. 16 and 124.

The Coroner and the Sheriff are also classed in the same title with the Attorney General.; and yet it has not occurred to any one that they are judicial officers. They are, on the contrary, essentially executive officers. And, with regard to the Attorney General, although his functions are to represent the State in civil and criminal causes, he is not a Judge by any means, but an executive officer. The only judicial stations known under our system of laws, are the Supreme Court, the inferior courts established by the Legislature, Justices of the Peace, and the Recorders and Municipal Judges in the city of .New Orleans.

V. Next comes the charge of unequal taxation, from the fact that the statute requires the city of New' Orleans to pay one-half of the expenses of her elections, and the State the other half.

Each parish in the State pays its own election expenses, without contribution from the city of Now Orleans, and contributes rateably to the payment of one-half the latter’s election expenses. The inequality of taxation is not a burden to the defendant, but to the State at large. Acts 1855, p. 414, $ 36.

VI. The defendant contends, that the statute “ deprives the city of New Orleans of the powers of police government vested in her by the Constitution; that it bestows upon an officer styled Superintendent, and a force of his own selection, the exclusive power of the administration of the police of the city of New Orleans, on days of election.”

The views expressed upon this point, as u'ell as upon the question of unconstitutional taxation, in the opinion prepared by Mr. Justice Land, are conclusive upon these matters.

The city of New Orleans, alike all other municipal corporations, is the creature of the legislative will. The only constitutional prerogative vouchsafed to her, is 11 the right of appointing the several public officers necessary for the administration of the police of said city, pursuant to the mode of elections which shall be prescribed by the Legislature.” In this instance, the city derives its right or capacity to stand in judgment from a charter or Act of incorporation passed by the Legislature since the adoption of the present Constitution. But, conceding that, by implication, this grant of powers must be considered as flowing effectually from the fundamental law, it does not follow the less that the city can exercise these lights, only “pursuant to the mode of elections which shall be prescribed by the Legislature.” So that, under the very provisions of Article 124 of the Constitution, the power of the Legislature is paramount to those of the Municipality, upon the subject of elections. The latter cannot enjoy the right recognized in this Article independently of the action of the Legislature :■ — -this must be “ pursuant to the mode of elections which shall be prescribed by the Legislature.”

Hence, the right of the Legislature to pass the Act regulating elections in the city of New Orleans.

The question as to the policy and propriety of the Act regulating elections in the city of New Orleans, is not before this court; and it is obviously not within its province to enquire into the charges preferred by the defeudaut: “ that the Act of 1857 is the offspring of an evil spirit against the city of New Orleans ;— that it punishes the many for the acts of the few, and pronounces an unnatural and false judgment of infamy and degradation against the law-abiding inhabitants of a great city.” Our task is performed when we have determined the question of conflict between this statute and the organic law.

Duffel, J.,

concurring. Believing that the only grave and pertinent questions presented for the adjudication of this court are, 1st, whether the State of Louisiana has the constitutional right to regulate elections within its geographical limits; to name its own officers, within and without the boundaries of the city of New Orleans, to conduct such elections, and to preserve order at, and near the polls; and 2dly, whether the city of New Orleans can rightfully be made to pay, out of her treasury, one-half of the expenses incurred to hold such elections within her limits, when out of the city, expenses incurred for a like object are paid in full by the respective parishes; and holding the affirmative of both propositions, I simply concur in the opinion of Mr. Justice Land, without deeming it necessary to approve or condemn the other provisions of the various sections of the Act of the 19th of March, 1857, which, according to my understanding, are not put at issue by the pleadings.

Buchanan, J.,

dissenting'. This suit is brought to compel the city of New Orleans to reimburse the one-half of the expenses paid by the State, in the year 1857, for the purpose of carrying into effect the provisions of an Act approved the 19th of March, 1857, entitled An Act relative to elections in the parish of Orleans. The defendants admit, that the allegations of the petition in relation to the payment of said expenses and the demand of reimbursement by the State Treasurer, are true; but plead that the Act of the Legislature above mentioned is contrary to and violates the Constitution, and that the action of the State, under said law, cannot be maintained.

The City Attorney, in his argument before this court, has designated the Articles 124,1, 74,104, 58,105, and 123, of the Constitution, as those which are violated by the Act of the Legislature in question.

Article 124 of the State Constitution provides as follows :

“ The citizens of the city of New Orleans shall have the right of appointing the several public officers necessary for the administration of the police of the said city, pursuant to the mode of elections which shall be prescribed by the Legislature; provided that the Mayor and Recorders shall bo ineligible to a seat in the General Assembly ; and the Mayor, Recorders, Aldermen and Assistant Aldermen shall be commissioned by the Governor as Justices of the Peace, and the Legislature may vest in them such criminal jurisdiction as may be necessary for the punishment of minor crimes and offences, and as the police and good order of the city may require.”

The following provisions of the Act of 19th of March, 1857, are said to be inconsistent with this Article:

“ Section 16. The Governor shall, by and with the advice and consent of the Senate, appoint a discreet citizen, who has resided in the State at least four years, whoso duty it shall be to superintend all elections held in the city of New Orleans, and who shall be styled “ Superintendent of Elections,” who shall hold his office for the term of two years, unless sooner removed, and who shall receive an annual salary of three thousand dollars, payable quarterly, out of the Treasury, upon the warrant of the Auditor of Public Accounts; and onc-half of said salary shall constitute a debt against and to be paid by the city of New Orleans, in the manner hereinafter provided
Section 18. The said Superintendent shall keep his.office in the city of New Orleans, and shall be entitled to four chief deputies, to be appointed by himself, and removable at his pleasure; and each of said deputies shall receive an annual salary of one thousand dollars, payable quarterly, out of the Treasury, on the warrant of the Auditor of Public Accounts; one-half of which salary shall constitute a debt against and to be paid by the city of New Orleans, in the manner hereinafter mentioned.”
“ Section 19. That it shall be the duty of said Superintendent of Elections, to take charge of and superintend, under the control of the Central Board of Commissioners, and to the exclusion of all other persons, all elections held in the parish of Orleans and city of New Orleans, for the offices of the General Government, members of Congress, members of the General Assembly, Judges, parish or municipal offices, and for any other officer, federal, State, parochial or municipal, whose election devolves upon the people; to prescribe and arrange the ingress to and egress from the polls; to preserve tranquility and order during elections ; to prevent and suppress riots, tumult, violence, disorder, and any other improper practice tending to the intimidation of voters, or tho disturbance of elections, and in general, to take care that all elections are so conducted, that the privilege of free suffrage may be supported, and the constitutional rights of the citizens shall not be impaired or defeated by violence, tumult, intimidation, or other improper practices.”
“ Section 20. The said Superintendent shall have power to.employ any number of persons the Governor may think necessary, as his deputies, for such time previous to any election as the Governor may direct; and the said deputies may be organized in such manner as the Superintendent may deem proper and adequate for the occasion; and the said deputies, on the day of election, and during their term of service, shall be subject to the order and direction of said Superintendent, and obey all lawful commands issued by him.”
“ Section 23. That the said Superintendent of Elections shall have the power to appoint any number of extraordinary deputies, from amongst the citizens of the parish of Orleans, to protect the approaches to the polls, keep order thereat, and secure free access to and egress from said polls; and any citizen between the ago of twenty-one and fifty years, refusing to perform such duty, whenever thereunto summoned, shall be subject to a line of not less than one hundred, nor more than five hundred dollars, recoverable before any court of competent jurisdiction, in the name and for tlie benefit of the State of Louisiana; and in default of payment thereof, said citizen shall stand committed in the parish, jail for a term not exceeding' sixty days.”
“ Section 24. That if any person, in the parish of Orleans shall, in breach of the peace, disturb any Commissioner or Clerk of Elections in the discharge of his duty, or any voter in the exercise of his right of.suffrage, or shall prevent any voter from exercising his right of suffrage, whether before or during the election time, such person shall be forthwith arrested by the said Superintendent, or any of his deputies, or extraordinary deputies, and instantly confined in the police or parish jail, and shall, upon conviction thereof, be sentenced to not loss than six months, nor more than three years imprisonment, at hard labor in the penitentiary, and shall be forever deprived of his right of suffrage; provided, however, that any person so arrested, if a lawful voter, shall be permitted to vote before being confined.”
“ Section 27. That the said Superintendent shall commission his chief deputies, and their commissions shall specify their seniority of rank ; and it is hereby declared, that in the event of death, resignation, absence, sickness, or inability to act, from any cause whatever, the said chief deputies shall succeed to the duties and powers of said Superintendent, according to the seniority of rank expressed in their respective commissions, so that the senior chief deputy shall first succeed, and in case of his death, resignation, absence, sickness, or inability to act, the second chief deputy shall next succeed, and so on to the last; and each chief deputy thus succeeding in his turn, is hereby authorized and empowered to assume and perform all the duties of Superintendent, and exercise all the powers vested in him by virtue of this Act, until the vacancy of Superintendent is filled, or the Superintendent presents himself and resumes the duties of his office.”
“ Section 28. That any deputy employed by the said Superintendent, except the chief and extraordinary deputies, shall be entitled to receive, during the time he is in actual service, under the command and direction of the Superintendent, ton dollars for each day of actual service.”
“ Section 30. That one-half of the expenses incurred for the purpose of carrying into effect the provisions of this Act, except those otherwise provided for, shall be charged' to and be paid by the city of New Orleans ; and the Treasurer of the State is hereby authorized and required, on the first day of January of e'ach and every year, to demand of the city of New Orleans the payment of one-half of whatever appropriation may be expended for the salaries of the deputies and officers aforesaid.”
Section 31. That the said Superintendent, for the purpose of preserving order, 'and preventing riots and tumults, is hereby authorized to cause to bo closed, on election days, all grog-shops and bar-rooms in the city of Now Orleans ; and any keeper or owner of a bar-room or grog-shop in said city refusing or failing to comply with the proclamation of said Superintendent, published in two newspapers of the city of New Orleans, requiring grog-shops and bar-rooms to be closed on the day of election, shall forfeit and pay á fine of two hundred dollars, recoverable before any court of competent jurisdiction ; the payment of which fine shall, after judgment, be enforced by imprisonment, not exceeding-sixty days.” '

The argument of the Attorney General admits that the powers vested in the Superintendent of Elections and his deputies by these sections of the statute are police powers, but he argues that they are powers essentially belonging to the police of the State, — not the police of the City — because the regulation of elections, and the protection of the elective franchise, are the very first duties of the State, the government being based upon and carried on by means of elections. And in this connection, we are referred to Article 93 of the State Constitution, which declares that the privilege of free suffrage shall be supported by laws regulating elections, and prohibiting, under adequate penalties, all undue influence thereon from power, bribery, tumult, or other improper practice.

Granting that the preservation of the public peace at elections held to fill the offices required to carry on the State government, and the protection of persons who are entitled to vote, in the exercise of such right, are matters of State policy and concern, in all the parishes and municipal corporations into which the territory of the State is subdivided ; yet, it cannot bo denied, and in the argument of the Attorney General it is admitted, that the measures for the repression of disorders at elections, and for the protection of voters, are matters of police administration. Police is a term of extensive application. It embraces attributes, administrative, preventive, and punitory. In all those attributes, it is essentially executive. The Legislature of the State has fulfilled the Article 93 of the Constitution by general laws concerning elections, other than the one now under consideration. There is nothing in that Article inconsistent with Article 124 ; which last prescribes merely who shall bo charged with executing and carrying out, in a particular portion of the State, the laws enacted in virtue of the Article 93, as well as all.other laws which come under the head of police regulation.' But the Attorney General further urges, that the police administration is not vested in the “ city of New Orleans ” by the Article 124 of the Constitution, but in the “citizens of the City of New Orleans.” The city of New Orleans, it is argued, is a municipal corporation, deriving its powers exclusively from the Legislature, and absolutely subject to its control; and & dictum of Chief Justice Eustis to that effect, in the case of the Louisiana Stale .Bank v. Orleans Navigation Company, 3 An. 306, is quoted. It is worthy of remark, that Judge Eustis, in the passage cited, expressly excepts the constitutional right of the inhabitants of New Orleans to elect their public officers; the right for which the defendant contends in the present suit.

The distinction drawn by the Attorney General between the citizens of New Orleans, and the corporation, is one of no practical utility ; and if it were, is not justified by the terms of Article 124. The city corporation represents the collective mass of the citizens of New Orleans. Financially, the citizens can only be collectively reached through the city corporation : a fact, of which this very suit, instituted against the city corporation, is a judicial admission on the part of the plaintiff. The city corporation is called upon to defray the salaries of certain officers, and to reimburse moneys expended upon warrants of those officers. It answers, on behalf of the citizens, whom it represents, and out of whose pockets the money will have to come, which is to satisfy the judgment demanded in this suit, that the law on which the action is based is unconstitutional, and therefore, that the citizens ought not to pay, as demanded. Why is the city corporation sued for this money ? The answer is obvious. Because the 16th, 18th and 30th sections of the Act of the 19th March, 1851, have so ordained. The obligation is, therefore, an obligation of the city corporation, created by a statute. And it is not only a competent defence, but the best of all defences to an action upon a statutory obligation, that the statute violates the Constitution. And as no one has an interest, or can be heard to make a defence to an action, except the party defendant to the action, it follows that the distinction made in argument between the citizens of New Orleans and. the city corporation, is useless, and can load to no result except a denial of justice; for, if, maintained, it would amount to a declaration by, this court, that the defendant is properly sued, but has no right to defend the suit. But the Article, in its terms, really offers no foundation for the ' supposed distinction between the citizens and the corporation. It refers, in various parts, to the corporate organization established by statutes already existing. It mentions specially the Mayor, the Recorders, the Aldermen and the Assistant Aldermen, who are officers of the corporation. It ratifies and confirms the Oity Charter, by declaring that the citizens shall always possess the franchises which that charter had bestowed upon them, to-wit, the appointment of the several public officers necessary for the administration of the police of the city. This is qualified, it is true, by the clause 11 pursuant to the mode of elections which shall be prescribed by the Legislature.” But that clause is one of modification, not of destruction. On no correct principles of construction can it bo interpreted to confer upon the Legislature the power of abrogating in tato the right of appointment by the people. The Legislature, under this clause, may modify the election of public officers charged with the administration, of the police of this city; may alter the forms of election, its periods, its incidents, its consequences and effects; but it must always remain an election, and an election by the citizens in their corporate capacity.

Another argument which has been forcibly urged by the Attorney General is, that the power to enforce order, and prevent violence and malpractices at the jjolls, in elections held in the city of New Orleans, under the constitutions of 1812 and 1845, which contain provisions analagous to those of the Article 124, was, by many statutes, vested at different times, without any doubt or question being raised upon its . constitutionality, in officers appointed by the Governor, to-wit, Judges and Sheriffs. These statutes are in perfect harmony with the Article 124. They are component and necessary parts of the statutes for the regulation of elections, passed in conformity with Art. 93 of our present State Constitution,, and analogous Articles of the preceding constitutions. But it will be found, that the police powers vested in the officers named by the statutes referred to, did not extend beyond the immediate precincts of the polls, and did not endure longer than the time fixed by law for receiving and counting the votes, and preparing the official returns of the balloting. Powers thus limited cannot with propriety be styled the administration of the police of the city, in the words of the Constitution. But the same thing cannot be said of the powers conferred by the Act of the 19th of March, 1857, upon the Superintendent of Elections and his deputies. Their jurisdiction is co-extensive with the limits of the city; may be exercised during an indefinite period; and enforced by an armed force, levied by themselves although paid by the city of New Orleans; and any resistance to any one of whom is punishable with fine and imprisonment in the penitentiary.

It therefore appears, that the Act of 19th March, 1857, creates a stringent system of police of the city at large, of which the administration is committed, by the statute, to officers not appointed by the citizens of New Orleans, according to any mode of election prescribed by the Legislature. In this respect, the statute is contrary to the 124th Article of the Constitution; and it follows, as a necessary consequence, in my judgment, that no action can be maintained, under it, against the city, for the salaries of the officers thus unconstitutionally appointed.

It is further objected, that the statute violates the 1st and 2d Articles of the Constitution in those of its enactments which relate to the Attorney General.

Article 1 divides the powers of the State Government into three distinct departments, Legislative, Executive, and Judicial.

Article 2 declares, that no one of these departments, nor any person holding-office in one of them, shall exercise power properly belonging to either of the others.

The argument of the City Attorney, in relation to this branch of defence, is, that the Article 74 of the Constitution, which creates the office of Attorney General, is placed in the fourth title of that instrument, which treats of" The Judiciary Department ” — that the Attorney General is, therefore, to bo considered as an officer of that department of the State Government; and that, by the Act of 19th March, 1857, sections 6, 7, 8,10,11,19, executive powers are conferred upon the Attorney General. .

The first Article (No. Cl) in the title of the Constitution referred to, declares as follows :

“ The judiciary power shall be vested in a Supreme Court, in such inferior courts as the Legislature may, from time to time, order and establish, and in Justices of the Peace.”

In the same title we find Article 74, which creates the offices of Attorney General and District Attorney, and Article 80, which creates those oí Sheriff and Coroner. But neither of those Articles are viewed by us as conflicting with and overruling- Art. 61. The fact of the Attorney General being- connected with tire administration of justice, particularly in criminal prosecutions, has probably been the cause of mention being made of him in the Constitution, in connection with the Judicial Department of the Government; bat his functions are essentially executive. Informations and indictments originate with him. He conducts, on behalf of the State, criminal and civil proceedings; but he does not decide them. The power of judging — the judicial power — resides elsewhere.

It is next argued by the City Attorney, that the 25th section of the statute violates the 104th Article of the Constitution.

By Article 104, “ All prisoners shall be bailable by sufficient securities, unless for capital offences, when the proof is evident, or the presumption great, or unless after conviction for any offence or crime punishable with death or imprisonment at hard labor.”

The 25th section of the Act reads as follows :

“ When any person shall be arrested, on the day of the election, by the said Superintendent, or any of his deputies, or his extraordinary deputies, ho shall not be released from his imprisonment by bail or otherwise, until the following morning-, unless it be by order of the Superintendent, or any of his chief deputies, or by writ of habeas corpus.”

I find nothing inconsistent in the provisions of the Article and section above copied.

The Article 58 of the Constitution is also stated by the City Attorney to be violated by sections 22 and 27 of the Act of the 19th March, 1857.

The Article 58 provides that “ All commissions shall be in the name and by the authority of the State of Louisiana, and shall be sealed with the State seal, and signed by the Governor.”

The 22d and 27th sections of the Act empower the Superintendent of Elections to commission his deputies.

These sections are not in conflict with Article 58 of the Constitution. That Article refers entirely to cases where, either the appointing power is in the Governor, or whore, the office being elective,'the returns of election are required to bo made to the Governor and verified by him. The Article must be construed in connection with Article 47, which declares that the Governor “ shall nominate, and by and with the advice and consent of the Senate, appoint all officers whose offices are established by this Constitution, and whoso appointment is not therein otherwise provided for; provided, however, that the Legislature shall have a right to prescribe the appointment to all other offices established by law.”

The City Attorney next contends, that the 14th section of the Act, which authorizes the Board of Commissioners to use, for the purpose of an election poll in the parish of Orleans, any building’ belonging to the city of New Orleans, violates the 105th Article of the State Constitution, according to which “ vested rights shall not be divested, unless for purposes of public utility, and ior adequate compensation previously made.”

It is not perceived how the permission, accorded by the satute to the Commissioners of Election, to make use of any building belonging to the city, divests the vested right of the city in such building. In the first place, it is not obligatory on the Board of Commissioners to use buildings belonging to the city. It may, says the same section, rent any buildings proper for the occasion, with the exception of grog-shops, or places where liquor is sold, which are formally prohibited from being used for election polls in the parish of Orleans.

Again, the statute does not authorize the Board of Commissioners to use buildings belonging to the city of New Orleans, against the- consent of the municipal authorities. The refusal of such consent, it appears to me, would constitute one of those cases of necessity, in which, according to the section, the Board of Commissioners is authorized to rent the buildings proper for the occasion.

It is, lastly, argued by the City Attorney, that the section 30th of this Act of 19th March, 1857, is contrary to the Article 123 of the Constitution, which declares that “ Taxation shall be equal and uniform throughout the State.”

The 30th section of the Act roads as follows :

“ One-half of the expenses incurred for the purpose of carrying into effect the provisions of this Act, except those otherwise provided for, shall be charged to, and be paid by, the city of New Orleans ; and the Treasurer of the State is hereby authorized and required, on the first day of January of each and every year, to demand of the city of New’ Orleans the payment of one-half of whatever appropriation may be expended for the salaries of the deputies and officers aforesaid.”

The allegations of the petition heroin, admitted to be true, inform us that a large sum, about six thousand dollars, has been paid by the State Treasurer, out of appropriations made by the Legislature, under this section of the Act under consideration, for the year 1857. The funds in the State Treasury, with which this payment was made, were, in part at least, the’proceeds of taxation, of which the city of New Orleans had contributed a large share. In addition to the contribution thus already made by the tax payers of New Orleans, towards defraying the expenses of carrying into effect the provisions of the Act in question, the city, in its corporate capacity, is now called upon to reimburse to the State Treasury one-half of the amount thus disbursed by it. This call can only bo met by taxation of the corporators, levied by the Common Council. The inhabitants of the city of New Orleans are evidently thus taxed twice, for an object for which the other parishes of the State will only have been taxed once. It is remarkable that, in his written brief, the Attorney General has not touched this ground of the defence. In his oral argument, that officer was understood by me to take the position, that an objection to pay one-half of the expenses incurred under the Act, came with a bad grace from the city, inasmuch as the Legislature might, had it thought proper, have charged the city with the payment of the whole of those expenses. This argument does not seem to state the case with entire exactness ; for, in my view, as above expressed, the city is made to defray, under the statute, considerably more than one-half of the total sum of expenses. But this error of the Attorney General’s argument, if it be an error, is immaterial. The case put by the argument is not the one before the court. The Legislature has not said in this statute, (as was said in the statute reviewed in St. Martin’s case,) that the city shall pay all the expenses of carrying its provisions into effect. It has said, on the contrary, that the city shall pay a part of those expenses — but what part? A part proportionate to the amount of the Slate revenue derived from this city? No : but one-half of the total expenses, in addition to its proportionate contribution to the State revenue, already paid. This legislation appears to me equivalent to a special tax imposed upon the city of New Orleans, in addition to the burden of taxation which it bears in common with the other parishes, and is, consequently, an example of the unequal taxation reprobated by Article 123 of the Constitution.

I am of opinion that the judgment of the District Court should be affirmed.

Merrick, C. L,

dissenting. I concur with Mr. Justice Buchanan that the Act in question violates Article 124 of the Constitution, inasmuch as it conflicts with the administration of the police vested by the Constitution in the officers of the city.

The powers vested in the Superintendent are of the most extraordinary character. They place the city during the election entirely under his control, as will be seen by an enumeration of his powers.

1st. He has the power to impress into his service, under the penalty of a fine not less than $100 nor more than $500, any number of citizens over 21 and under 50 years of age, who are to act as extraordinary deputies, and they are to be paid ten dollars per day for the time they are “ in the actual service under the command and direction of the Superintendent.”

Under this provision not only private persons are liable to serve as deputies, to the number of thousands, if it shall please the Superintendent, but the Mayor himself and every other officer of the city, of suitable age, may be required to serve, in the language of the statute, under the command of the Superintendent. 'Fliis power may be continued not only for one day, but may commence as many days previous to the election as the Superintendent may deem expedient. It is then subversive of the power of the city authorities, because it may, for the time being, command them.

2d. The Superintendent is to take charge (under the control of the central board of commissioners,) to the exclusion of all other persons, of all elections in New Orleans. To prescribe and arrange the ingress to and egress from the polls ; to preserve tranquility and order, not at, but during elections ; to prevent aud suppress riot, tumult, violence, disorder and any other improper practice tending to the intimidation of voters or the disturbance of elections, and in general to take care that all elections are so conducted that the privilege oí free suffrage may be supported and the constitutional rights of the citizens should not be impaired or defeated by violence, tumult, intimidation’or other improper practices. This extraordinary power of police is thus eo-extcnsive with the limits of the city. Public streets may be prescribed as ways of ingress or egress to the polls. The public buildings may be taken for that purpose, and tumults and disorder every where suppressed during the election ; and any person, even a city officer, who shall interfere with said Superintendent, or his deputies, shall be fined not loss than $500 and imprisoned at hard labor for one year in the penitentiary. Thus it is seen, that not only a portion of the police power is assumed, but wherever the two authorities are present that of the Superintendent is exclusive and paramount. The law is then in conflict with Article 124 of the Constitution, which has guarantied to the citizens of New Orleans the exorcise of the police power through officers to be elected by themselves. •

3d. He has the right to arrest, without warrant, for offences not only committed in his presence but out of his presence, as, where a person should prevent a voter from exercising his right of suffrage before or during the election, or where a riot had occurred in another part of the city.- If this be not a judicial power, it must be that of a conservator of the peace, the same which the Constitution has vested in the Mayor, Recorders, Aldermen and Assistant-Aldermen. In regard to the powers exercised by commissioners of elections under the territorial government and former constitutions, there was but little in common with the present statute. The commissioner, who was accompanied by the sheriff or his deputies, had power to preserve order during his actual sittings and in his immediate presence.

The Superintendent, on the contrary, has power throughout the entire city ; to preserve order and tranquility everywhere during the election, ne commands his deputies ; he takes possession of any street or public building he needs ; he enters upon private property and closes grog-shops and bar-rooms ; he suppresses riots, tumults, disorder and improper conduct tending to intimidate, etc., and protects the constitutional rights of the citizen at his own arbitrary will and pleasure, and whether disorder takes place or an improper practice has been resorted to in or out of his presence. The difference between the two offices is radical. The former one was an officer with the most limited powers, both as to timo and place. The Superintendent, on the contrary, has to a certain extent arbitrary powers. He is “ to take care,” among other things, that all elections shall be so conducted that the constitutional rights of the citizens shall not be impaired or defeated by violence, tumult, intimidation or other improper practices. What is violence, tumult, intimidation, or improper practices, and what are the constitutional rights of the citizen, is left to the sole will and judgment of the Superintendent to determine.

The judge of the election could only preserve order in his immediate presence, during the receiving or counting of the votes. The Superintendent, who does not receive a vote or preside at any poll, is empowered to take his measures as long before the election as may be needed to carry into complete effect the object of the Act. This power, absorbing as it does all police power, seems to me, as already observed, wholly incompatible with the grant by the Constitution of police powers to the officers elected by the citizens of New Orleans.

Municipal corporations are, as a general rule, but creatures of the legislature. The city of New Orleans is excepted by the Constitution from the operation of the rule in two particulars :

1st. By implication, it must remain a city and the legislature cannot deprive it of all rights as such.

2d. Expressly; the legislature cannot take from the citizons of New Orleans the administration of the police of the city through officers elected by themselves, nor from the Mayor, Recorders, Aldermen and Assistant-Aldermen the powers of Justices of the Peace as conservators thereof.

The legislature may prescribe the regulations of police for the city, but when that is done, those regulations are to be enforced through the several public officers, elected by the citizens, necessary for such administration.

It is true the legislature has power to prescribe the mode of election, but this must be understood with reference to former laws, and not construed so as to absorb the administration of the police, in the city at large, which had just been granted by the previous provision to the city and to advance which, the power to prescribe the mode of election had been retained. The grant of power and the restriction must be construed so as to give effect to both, and that is best done by reference to the state of things existing at the date of the adoption of the Constitution.

It must not be supposed, that because the legislature can provide the mode for the appointment of commissioners of elections, as known to the laws of the country at that time; therefore, it can superadd other and prohibited powers, such as judicial or executive powers, or the administration of the police, etc., to the same officers. It needs no argument to demonstrate that things unconstitutional cannot be added to those which are constitutional. To hold because the Constitution has made it the duty of the legislature to provide for the election of the city officers, that, therefore, the officers of the election may be made to perform the duties and absorb the power of the city authorities, appears to me to be an exposition which permits the means to defeat the end. If the owners of a ship had contracted with a towboat company, in this city, to deliver the vessel at the mouth of the Mississippi, the company would hardly be justified in displacing the officers, passengers and crew, and putting on board officers and crow of their own, and taking possession of deck, cabin and stores, although the voyage were but a short one. Moreover, the argument proves too much, for by the same reasoning it can be demonstrated that the judicial power may bo conferred on the Superintendent of elections also.

Some reliance has also been placed upon the fact that this is the first time that there has been any opposition made to the exercise of this power by the State. The reason is most obvious; this is the first time since the change from the Spanish government that such extraordinary and arbitrary powers have been vested in any individual.

I concurred fully in the decision in case of St. Martin v. the City of New Orleans, although it was not decided without hesitation on the part of some of the members of the court. Hence, the opinion in that case is extremely guarded, and applies only to the questions of repeal and construction. The constitutional question was neither raised by counsel nor decided by the court. And if it had been considered, the question would have been different, for the Constitution enjoins it upon the legislature to create the registry of voters. Art. 11. Again, it supposed that the restriction contended for by defendant is incompatible with the sovereignty of the State.

Under our system of government, it is plain, the legislature is supreme only in a qualified sense. It is itself, the creature of the people assembled in convention, and it exorcises only a delegated power in their name. 'Wherever the people have limited or restricted the power of the legislature, its sovereignty ceases, The Constitution is the charter by which the power is conferred upon the legislature to make laws, and as this power is limited and restricted, a jurisdiction has been conferred by the same instrument upon another body of magistrates, to determine the meaning of the instrument, and to declare all violations of the same null. It is as I think, the duty of the courts to stand at the post assigned them by the Constitution, and with unwavering fidelity to declare void every act tending in any manner to overthrow the constitutional rights of the citizen, whether considered as an individual or as a member of a municipal corporation : lest one unwise precedent may lead to innumerable and unforeseen evils by its consequences.

The Constitution being an instrument for interpretation, becomes subject to those rules of interpretation which existed long before the instrument was penned.

’Hie restriction upon the legislature contained in the 124th Article of the Constitution, appears to me to be plain and intelligible as it stands. It says that the citizens of the city of New Orleans shall have the right of appointing the several Public Officers necessary to the administration of the police of said city. My argument is, that if an office be public, and necessary to the administration of the police, the power is vested in the citizens of New Orleans by the Constitution, (which created the legislature, established this court, and recognized New Orleans a city,) to fill the office.

In my opinion it is a matter of no consequence how the office is created, whether by the legislature under general laws as to all corporations, or by a power delegated to the city itself. For, as the Constitution does not provide in what manner the laws governing the city are to be passed, I see nothing to prevent the entire legislation of the city from being engrossed by the legislature. But .when the laws are once enacted, the Constitution directs, that the execution of all those in relation to the administration of the police of the city, shall be entrusted to officers elected by the citizens of the city of New Orleans.

The question, therefore, is resolved into this, (as implied by the leading opinion of the majority of the court,) whether the .Superintendent of the Elections administers police powers within the city ? If he does, the law creating the office is unconstitutional, because the citizens of New Orleans are not permitted to appoint or elect him.

What, then, does the Constitution mean by the word “ police ? ” It is defined to be “ A term employed to designate those regulations, which have for their object to secure the maintenance of good order, cleanliness, health, etc., in cities and county districts.” See Brande. See also Tomlins Law Die. verbo Police. It is the more evident that the framers of the Constitution used the word in this sense, as the city authorities had exercised such powers previous to the formation of the Constitution of 1812, as well as since. See Martin’s Dig. vol. 3, p. 196 el scq.

To hold that the police of a city, as such, is limited in its functions to the prevention or punishment of infractions of city ordinances would be, it seems to me to ignore the ordinary meaning of words, and leave the city unprotected as to those crimes and offences the most dangerous to the peace and safety of the citizens. Can it be successfully maintained, that the city authorities cannot interpose to prevent murder, arson, burglary, robbery, larceny, assaults, affrays and the keeping of disorderly houses, because those offences are punished by State laws ? If the city authorities can interpose to repress these dangerous disturbances, it is manifestly a police power. Now, is not the power to preserve “ tranquility and order,” to prevent and suppress riots, tumult, violence and disorder, and to take possession of all the streets and public buildings equally a matter of police ? If it be, then the law conferring this power upon a “ public officer,” the Superintendent, (who is not elected by the citizens of New Orleans) to the exclusion of the city authorities is unconstitutional and void.

The restriction in the Constitution upon the legislature may, or may not, evince sagacity in the framers of that instrument. But certain it is, that tho provision was deemed important, for it has been consecrated by three several constitutions. Possibly the statesmen of 1812, who were securing to the town of New Orleans the right of appointing its public officers, may have had in view tho influence which independent and well governed cities have exerted upon modern civilization and freedom, and might have glanced forward to the great future of this city, when its teeming population might awaken jealousy by its opulence and commercial importance, or resentment by the obstinacy of political opinions, and they may have chosen to shield it in all coming time from the possibility of a harsh administration of any unfriendly laws it might thus provoke.


author: Merrick, O. J. Duffel, J.,

text:
    Martha C. Nicholls et al. v. Alfred Mercier.
    Tho doctrino in the case of the same plaintiffs v. McCall, 13 An., p. 215, affirmed, to tho oilocl that, wlioro, in a forced sale of property, a change in the terms of the sale more favorable to tho seized debtor, is made, such change will not invalidate tho sale ; it will be presumed to have been made at tho instance of the debtor, and he is cstoppod from contesting it.
    APPEAL from the Third District Oourt of New Orleans, Duvigneaud, J.

      I. E. Morse <& C. N. Morse, for plaintiff and appellant.

      P. Soulé, for defendant.
   Merrick, O. J.

The facts' of this case cannot (with a single exception) be distinguished from the case of the same plaintiffs against Henry McCall, reported in 13 An., p. 215. The suit is to recover a house and lot upon Rampart Street, sold under the same execution under which McCall held. The plaintiff, in order to rebut the presumption in favor of the Sheriff’s acts under the execution, has shown that the Sheriff did not collect the revenues of the property during the time it is alleged to have been under seizure, but on the contrary, the rent of the houses on Circus Street were, during the whole period, paid to plaintiffs’ agent, and, during' a portion of the time, the rents of the property on Rampart Street were paid to no one, and have not been paid to this day.

The defendant also supposes that he has strengthened the present case on his part, by the production of a letter, wherein the plaintiffs proposed, in tho event the real defendant, P. Soule, should be sent abroad on an important public mission, to take a lease of the house on Rampart Street, from the latter.

The case has been principally argued in this court on two grounds, to-wit: that there never was any valid seizure of the property, the Sheriff never having had corporeal possession of the same; and that the acts of the agent, Cenas, could not bind the defendant by way of estoppel.

The earnestness with which this case is pressed upon our attention, as well as the strenuous exertions made in the former case to bring about a different result, and tho new facts proven, require us to reconsider the questions then and now presented.

la May, 1844, the plaintiff, Isaac.E. Morse, addressed a letter to the Board of Directors of tlio Union Bank, (his mortgage creditor,) wherein, among other things, ho said : “ But if the Direction think that a forced sale for cash must be made, I trust the Bank will sell the lots on Circus Street separately, and will bid a fair price for the property, which I believe, at the most depressed times, will bring enough to pay off all the bank debt and leave something for my mother and myself. The only favor, then, that I ask is, if it be possible, to get along without sacrificing this property, until after the payment of the bank bonds, in November, (which, I trust, will save the credit of the institution,) and that then the property stock, &c., shall be sold for cash, if you think best, or if you do not want the money immediately, for such credit as you may consent to, for, argue as you may, property will always bring, at a credit, much more than the highest interest added, for the single reason, that where there is one person for cash, there are ted on a credit.”

This delay was accorded the plaintiff. In November, the plaintiff, being about to return to his duties at Washington, as a member of Congress, executed with his mother the following power of Attorney :

' “ New Orleans, November 14,1844.
“We, the undersigned, do hereby nominate and appoint our friend, Hilary B. Cenas, of the city of New Orleans, to be our lawful agent and attorney in fact for us, in all matters in relation to the real estate, bank stock, to sign and make notes, receipts, to compromise, sell, and empowering him to use our names jointly and severally and in solido, to bind us in any manner that can bind ourselves, hereby ratifying and confirming all of his acts and signatures, to have the same force and effect as if the same had been done by ourselves.”
Signed, Martha C. Morse,
Isaac E. Morse,
Sole heirs and executois of N. Morse, dec’d.”

In January following, an order of seizure and sale issued, to sell the property mortgaged and bank stock, for cash. The bank stock, it is admitted, was at this time an incumbrance upon the property. The history of the proceeding after the seizure will appear from the testimony of Mr. Cenas. He says :

“ He is the party named in the power of attorney, &c. He was also appointed and sworn as curator to Mr. Morse. At the time the proceedings took place in the suit of the Union Bank v. M. C. Nichols et al., No. 16,512, Mr. Morse was in Washington City, a member of Congress. Mr. Morse, previous to his departure for Washington City, handed to witness the power of attorney herein filed, and told witness that he had been endeavoring to effect a settlement with the Union Bank, of his and his mother’s indebtedness to said bank ; that that debt was secured by mortgage upon his property on Rampart Street, and that he was anxious to have the property sold or disposed of to pay the debt, and that he had actually ottered the property, as witness understood him, to the bank, in payment of the debt, and had been in treaty with the bank to that effect; that something would have to be done very soon, as the bank was pressing for a settlement, and that he thought best to leave the power of attorney to sell the property, in case the bank should consent to a private sale. At any rate, witness was to confer with the lank, and to do the lest he could. Witness was under the impression, at the time, from the conversation he had with Mr. Morse, that the property had to be sold that winter, and that if not sold, as he desired, the bank would proceed to sell under its mortgage; he informed the hank, through Mr. Frey, the cashier, that he hold the power of attorney, and was ready to do all he could to subserve the interest of Mr. Morse and his mother in the matter. Some time after, witness was informed that the property was seized, and would bo advertised for sale; under the mortgage. At about the same time, witness was appointed euralor ad hoc. Deeming the sale of the property, as advertised, for cash and in block, as exceedingly objectionable and unfavorable to Mr. Morse and his mother, witness applied himself to the task of having the terms changed, if possible, and made more favorable, as he thought that the property had under all circumstances to be sold. Witness had several conversations with Mr. Frey., the cashier, and Mr. Adams, who was president or one of the principal directors, and whether through the representation of witness, or some other cause, the sale, as first advertised, did not take place, and more favorable terms were afterwards granted by the bank, upon which the property was sold. The terms to which witness refers, are those as stated in the advertisement for the sale on the 24th of June, 1845. The sale was very well attended. There were a great many bidders present, considering the condition of the property and the general depression existing at that time. Witness considered the sale a favorable one at that time. Mr. Morse never complained to witness of his action in the matter, — expressed no dissatisfaction until the inception of the present suit.”

Among other things, on the cross-examination, the witness says, that ho does not know whether the terms of sale wore altered by the bank, and for the purpose of saving themselves, or through the solicitations of witness. He iurther says, there was no positive agreement between him and the bank, prior to the sale, as to the terms upon which the property was to be sold.

The examination in chief being resumed, the witness further said, “ that he considered he was acting as the agent of plaintiff, in his double capacity of agent and friend, when he applied to the bank to grant terms of credit for the sale of the property. Witness had previously exhibited to Mr. Frey his power of attorney, and formally notified him that ho was prepared to act, under the power, for the interest of his constituents. It was after making this application, that the sale was stopped under the first advertisements. Witness was aware that the terms of the now advertisements wore to be made more easy, but he did not know the exact terms until he saw the advertisements. Witness was satisfied with the terms upon which the property was -advertised the second time. Considered them favorable to the present plaintiffs. Never made any subsequent, application to the bank for any modification of the terms of the sale.”

The bank passed two resolutions, one (based, it seems, upon the plaintiff’s letter,) on the 1th of March, 1845, wherein they consent to soli the property by parcels, and distribute the stock accordingly; and the other on the 2oth of April, 1845, in these words:

“ The Board, on motion, consented to have the property of the estate of N. Morse, mortgaged to the bank for the stock loan, sold in lots, as specified in the resolution of 1th March last, and on the following terms, viz : The purchaser to be entitled to a loan of twenty dollars per share on the stock, payable according to the terms of the charter, and the balance of the purchase money payable oucfifth cash, the remainder in notes 6, 12, and 18 months, bearing 7 per cent, interest per annum, satisfactorily endorsed, and secured by mortgage on the property.”

The property was sold on the terms of credit consented to by the bank, and the purchasers went into the peaceable enjoyment of the property. They were not disturbed until the institution of this suit, nine years afterwards.

In* August, 1851, the cashier of the bank wrote, to the plaintiff, and, inclosing him a statement of his account, wherein the proceeds of the sale of his property were carried to his credit, requested propositions for the settlement of the balance. Instead of making any-objections to the application of the proceeds, or the sale itself, he stated that, if he had the means, ho would pay every dollar. In another place he says : “ It is a source of deep mortification to me not to'be able to meet this debt due the bank. That feeling is somewhat softened by the fact, that every cent of property left by my father has been sold to pay his debts, and that the stock, say 525 shares, for some of which I paid ©26, would have paid the debt, and I presume is to-day worth the balauce, and I assure you the house now owned by Mr. Sou/é, Mr. J. II. Sheppard offered me ©25,000 in 1834, before I left the city.”

In April, 1852, the plaintiff offered, as already stated, to lease the house from Mr. Soulé, then the owner in the event of a certain contingency. Broughton v. King, 2 An. 571.

The writ shows that the Sheriff seized the property. It was advertised for sale, for cash. Cenas, as the agent of the plaintiff to sell and compromise, had knowledge of the fact, and set himself to procure the modification of the sale, and succeeded. The property was sold on such terms as he wished, and the purchaser was put in possession, which ho has held to this day. This does not appear to us to be what plaintiff calls it, a mere paper seizure. Neither is the seizure defeated by proof of the fact that the Sheriff neglected to collect the rents. The seizure may have existed notwithstanding the Sheriff may not have done his whole duty to the bank. The best proof "of the actual seizure of the property results from the fact, that the Sheriff had the power to transfer the possession as well as property to the purchasers.

We have been referred to common law authorities, to show that this court based its former opinion upon an erroneous conception of the doctrine of estoppels. - .

The estoppel spoken of by us in the former case, was that equitable estoppel arising both from the acts of the party and Ms agents, which had induced a change of conduct on the part of the bank, and doubtless had inspired confidence on the part of purchasers, that they were acquiring a good title, and they were thus induced to bid at that timo a full price.

The bank, in accordance with plaintiff’s request, delayed proceedings until after November. In January, they resolved to sell in the usual manner, and had made their seizure accordingly. The'agent of the plaintiff, with full authority to sell and compromise, and in pursuance of Ms instructions to do the best he could with the bank, sot himself to procure a modification of the terms of the sale, and was fortunate in obtaining terms entirely satisfactory to himself, viz, a credit of ©20 on each share of stock, and the balance one-fifth cash, and the residue on a credit of six, twelve, and eighteen months. Under these favorable terms, the property was advertised. The agent was present at the sale, and such was the confidence of the public in the reality of the sale, and the easy terms agreed upon, that there was a full attendance of bidders, and a fair price given for the property. Under these circumstances, it has seemed to us, under our system of law, that the plaintiff ought not to bo heard to controvert the validity of a sale made in accordance with his wishes, as previously expressed by letter, and at the urgent solicitations of his ■ agent, charged with the duty of making the best terms ho could with the bank. It also seems to us, under the circumstances, a matter of no great consequence whether the notices of sale had been formally served upon the agent, or not, or whether ho had aided in appointing the appraisers. He was present at the sale, and knowing that the property must he sold, and having procured terms which were entirely satisfactory, he had no reason to oppose the sale, but on the contrary, it was every way desirable, that it should take place. Neither could the agent in good faith have opposed the sale for want of notice, or on account of the expiration of the return day in the writ. His agency in procuring the delay and change in the terms of sale, as well as his knowledge of the proceedings, would not have justified him in making formal objections on the day of sale. The interest of his principal, as well as good faith, demanded that he should derive all possible advantage from the favorable terms of the sale which he had brought about.

If Cenas could not justly have opposed the sale then, his principal cannot rightfully attack it now, and this is what we mean when we say he is estopped. It is no new doctrine. The precise kind of estoppel was sanctioned by the court in the case of Seawell v. Payne, 5 An. 258. See also 5 Rob. 523; 1 An. 11; 5 An. 368.

But, it is objected, that the sale did not follow the requirements of the writ and order of seizure and sale. The answer to this objection has already been given. The- parties had power to change the terms of sale, and did so : what they had agreed upon was just as obligatory as though it had been incorporated in the writ by the Judge.

Again, it is said, that there was no written authority from the defendants in execution, to the Sheriff authorizing the terms of sale which he announced.

The parol testimony in this case, the same being received without objection, and having the force of written evidence, shows that the agent was not only authorized to compromise or sell, but was instructed to make the best terms he could, and so he “ applied himself to the task of having the terms of sale changed and made more favorable ” to the plaintiff, and succeeded. The authority to the Sheriff is thus satisfactorily shown ; 8 An. 283 ; 9 An. 363.; 3 La. 4G0.

But, it is said the agent did not, prior to the sale, enter into “ any categorical agreement, either verbal or written, between the bank and witness, (agent,) fixing- the terms of sale.” It is quite clear, we think, that the resolution of the bank was consented to, (as it purports,) at the instance of plaintiff’s agent, and although he did not know the exact terms which he had obtained until he saw the new advertisements, he knew that they were to be made more easy. As these terms wore satisfactory to the ageut, they received his consent by his silence during the interval between the advertisements and the sale, and by his presence at the sale, thus sanctioning the proceeding- and approving- of the conduct of third persons in bidding upon the property and investing their money therein. Spoken or written words ought not to be more binding than this silence of the agent, to whose solicitation these very terms had been accorded. Civil Code, 1805, 1811.

The view we have thus taken of the case, makes it unnecessary to consider any further matters urged by plaintiff in his argument and brief, or by defendant’s counsel in answer to the same.

After a careful review of the facts and authorities, wo are satisfied of the corifeetness of the former decree. The agent of the plaintiff was authorized to procure the terms of sale, which he did 'procuré, and his principal is bound by them.

Judgment affirmed.

Duffel, J.,

concurring. Without expressing any opinion in regard to the Various causes of nullities pleaded by the plaintiffs, I concur in the decree rendered in this case, because I am satisfied that all the grounds of nullities have been cured by the acts of Isaac E. Morse, who is now the only plaintiff in the cause. Those confirmatory acts are : 1st, the letter of the 15th of August, 1851, from the plaintiff to Mr. Geo. A. Freret, cashier of the Union Bank, in answer to a letter of the latter calling his attention to the annexed statement of account against the estate of his father, showing a balance due on the bond, of $9,175 85, &c.,” and asking for a settlement of said balance, and interest; and 2dly, the letter of the 22d April, 1852, from the plaintiff to Mr. P. Soulé. In the letter to Mr. Freret, the plaintiff expresses his desire to pay said balance, but his inability to do so, and concludes his letter as follows : “As I said before, should it ever be in my power to settle this debt, nothing would afford me more pleasure.” He also says that (with the exception of a house, lot and a few servants, which are all mortgaged to the Citizens’ Bank and J. C. Wedderstrandt.) he and his mother have no property. He alludes to the sale of the property by the bank, gives in cypher the amount produced by the sale, and expresses his satisfaction that “ every cent of property left by my father has been sold to pay his debts,” adding, “ aud I assure you that the house now owned by Mr. Soulé, Mr. J. H. Shepperd offered me $25,000, in 1834, before I left the city.” In the other letter, the plaintiff says : “P. S. The hopes and wishes of your friends here point to you in connection with an important mission abroad : should such an event transpiro, the ladies insist that I should ask of you to let me know what disposition you propose to make of your house in Rampart Street, and not to rent it without letting me know the terms, &c.”

The above letters, taken in connection with the testimony of Mr. Cenas, the plaintiff’s agent, in the suit against Henry McCall, that “Mr. Morse never complained to witness of his action in the matter, — expressed no dissatisfaction until the inception of the present suit,” convince me that the plaintiff was well aware, at the date of his first letter, of all the informalities on which he now relies to set aside the Sheriff’s sale, and consequently, that he cannot now question the legality of the proceedings, without, at least, pleading and proving error, which he failed to do. C. C. 2252; Charles Fortier v. Charles F. Zimpel, 6 An. 53; Vaughan et al. v. Christine et al., 3 An. 328; Marsh v. Smith, 5 R. 218; Blanchard v. Allain, 5 An. 368; Cobb et al. v. Parham et al., 4 An. 148; Bonneau v. Poydras, 2 R. 1; Broughton v. King, 2 An. 569.

Voonunss, J., concurs in this opinion.

Land, J., took no part in this case.


author: Voorhies, J.

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    O. Webber v. G. Gottschalk.
    Where a contractor brought suit for the price of a banquet or sicle-wallc made in front of defendant's property, pursuantly to a contract entered into with the city authorities, and it was contended by defendant that the plaintiff should bo nonsuited, because he did not prove “ that the petition for the paving of the side-walk was signed by one-fourth of the property holders,” and “ that the necessary publications, as required by the 119th section of the Act of 1856, were given,” — Held: Thai, in the absence of proof to the contrary, the city authorities will be presumed to have complied with the law in that respect: omniapraisivnnmtur solemniter esse acta.

    APPEAL from tlie Second District Court of New Orleans, Morgan, J.

      Clarice & Bayne, for plaintiff.

      M. Grivot, for defendant and appellant.
   Voorhies, J.

Tlie plaintiff sues the defendant for the price of a banquette or side-walk made in front of the latter’s property pursuantly to a contract entered into with the city authorities.

The main defence is, that the contractor did not comply with the stipulations of the contract. The evidence on this subject is conflicting. The Street Commissioner refused to accept the work; but the Common Council, upon a report made by commissioners, themselves members of the Board, concluded otherwise. The District Judge was of opinion, that the contractor had complied with the stipulations of the contract: and, under the circumstances, we do not feel authorized to disturb his opinion.

There is, in the record, a bill of exceptions to the admissibility of proof that tlie work had enhanced the value of tlie defendant’s property. As this proof 1ms no influence on the matters at issue, it is useless to decide whether the exception was well taken.

In the brief, it is contended that the plaintiff should be nonsuited, because he did not prove “ that the petition for the paving of South Poydras Street sidewalk was signed by the one-fourth of the property holders,” and “ that the necessary publications, as required by the 119th. section of the Act of 185G, were given.”

The defendant, in his answer, joins issue with the plaintiff, on the allegation that the work was not done according to the contract; but is silent as to the validity of the adjudication of the contract.

In the absence of proof to the contrary, wo will presume that the city authorities have complied with the law in that respect: omnia prassumuntur solemniter esse acta.

Judgment affirmed.

Duetel, J., absent.