author: Slidell, O. J.

text:
    J. G. Dunlap v. M. O’Conner.
    The cash and other property which an insolvent has in his hands at the time of his session, belong by virtue thereof to his creditors ; and if he retains them, the syndic may, by ordinary action, compel him to deliver them.
    APPEAL from the Fifth District Court of .New Orleans, Buchanan, J.

      Durant & Honor, for plaintiff. Upton, and Benjmnin S Miaou, for defendant and appellant.
   Slidell, O. J.

This is an action brought against O' Gonnor, by the syndic of his creditors, to recover from him certain movables and a certain amount of money, alleged to have been in his hands at the date of his cessio bonorwm, and fraudulently withheld from his surrender. The defendant filed an exception to the effect, that no charge of fraud touching his proceedings in surrender, could be inquired into in this action, alleging also that no opposition was made within the ten days in the insolvent proceedings. We think the exception was properly disregarded. The cash and other property which an insolvent has in his hands, at the time of his cession, belong by virtue thereof to his creditors, and if he retains them, the syndic may, by ordinary action, compel him to deliver them. In this case, the District Judge was satisfied that the insolvent had in his hands at the time of his surrender, goods and money collected a few days previous, and we see no reason to disturb his conclusion. Judgment affirmed, with costs.


source: Caselaw Access Project

author: Slidell, C. J.

license: Public Domain

text:
    S. P. Trimmell and J. J. Burnett v. John Van Cresap.
    "Where the administrator has received no order to pay over to the plaintiffs the specific sum claimed, and where they establish no right to receive the specific sum mentioned in their petition, the administrator will not be liable to imprisonment under the 10th section of the Act of March, 1840.
    APPEAL from the Sixth District Court of New Orleans, Colton, J.

      Taylor, and Purvis & Dugu'e, for plaintiffs and appellants. Ogden & Leovy, for defendant.
   Slidell, C. J.

This is a proceeding against Van Cresap, purporting to be instituted under the 10th section of the Act of 28th of March, 1840. He was arrested, and after trial before a jury, condemned to three years imprisonment.

The conduct of Cresap, as may be seen by referring to the case of Trim-mell’s succession, recently decided, has been very disreputable. It has exhibited a two-fold turpitude — first, in binding himself to a dishonest simulation, .and next in breaking his faith to a deceased friend. But however censurable his conduct, the question is whether the plaintiffs had a right to invoke for his punishment the provisions of law above referred to.

We are clearly of opinion that the proceeding is untenable. Without expressing an opinion upon the point, whether the clause in that section upon which the plaintiffs rely, embraces the case of an administrator who has received moneys of an estate in that capacity, and fails to pay it over when ordered, it is sufficient to say here, first, that there has been no order of the court in which the mortuary proceedings were conducted, to pay over the specific sum claimed; secondly, that the plaintiffs have established no right to receive the specific fund mentioned in their petition. In their petition they say, the administrator had in his hands a sum of $4313, proceeds of sales of property of the succession ; “ that this included a sum of $2885, the price of four lots, which it is pretended were sold, but for which your petitioners have brought suits to recover the same, and therefore do not claim their pretended price. But they aver, that the remaining part of said sum, to wit, $1428, was received and collected for them by the said curator, John Van Cresap, and was held in deposit and trust for them by the said John Van Cresap.” Now the judgment of the mortuary proceedings which they refer to, does not direct the specified fund to be paid to them, and it will be seen by the opinion in the case of TrimmelVs succession, that the privileged charges upon the estate, together with the mortgage claims of Van Cresap, for $700, would more than absorb the fund of $1428.

It is therefore decreed, that the judgment of the District Court be reversed, and the petition dismissed ; the plaintiffs to pay costs in both courts.


author: Buchanan, J.

text:
    Succession of Gassen v. H. W. Palfrey.
    A purchaser at a judicial sale, who, before paying the price or entering into possession of the thing purchased, discovers illegalities in the proceedings which have led to the sale, calculated to throw a cloud upon his title, may refuse to execute the purchase. But the burthen of proving the illegalities will be upon him.
    The vacancy of the office of tutor, by death or amotion, does not vacate that of under-tutor; on the contrary, it is the duty of the under-tutor in such cases, to cause another tutor to be appointed. O. O. 303.
    "Where there are several minors interested in ^ petition, there should be a tutor appointed to each. O. 0. 1291.
    APPEAL from the District Court of the Parish of Jefferson, Clarice, J.

      Brunelt, for plaintiffs and appellants. C. B. Duncan, for defendant.
   Buchanan, J.

Palfrey purchased a tract of land and improvements, at a public sale made under a judgment of partition among the heirs of ffassen, some of whom were minors, and some of full age. Being called upon by rule to comply with the terms of adjudication, he has alleged various nullities in the proceedings, most of them anterior to the judgment which ordered the sale. As to these, the counsel for appellants contend, that they should not be noticed by the court; that a tona fide purchaser at a judicial sale, is protected by the decree which ordered the sale, and is not bound to look beyond it.

The cases cited by the learned counsel upon this point, commencing with the leading one of Lalanno's Heirs v. Moreau, in 13th Louisiana, were all petitory actions, brought by persons claiming under those whose title had been divested by a judicial sale, against the purchasers at such sale, or their assigns, after the sale had been consummated by the payment of the price, and followed by a long possession of the thing sold on the part of the purchaser. See 13th La. 432. 10th La. 440. 3d Rob. 122. 2d Ann. 466.

The doctrine settled by those decisions, is fully recognized by us. But it is not applicable to the present case, which is that of a purchaser at a judicial sale, who, before paying the price, or entering into the possession of the thing purchased, discovers illegalities in the proceedings which have led to the sale, calculated to throw a cloud upon his title. For such a person, there is a locus penitentim afforded by the misconduct or negligence of those with whom he has contracted, and who are the warrantors of his title. The presumption, omnia rite acta fuisse, created by the law for his protection, cannot be invoked against him, as an estoppel, although available to throw the burden of proof upon him, of the illegalities of whicli he complains.

Of the grounds of defence pleaded to this rule, the ninth is as follows: “ There never has been a legally formed family meeting held in the case for the appointment of a tutor or under-tutor to the minors in interest, (or special tutor to represent them in the proceedings in partition,) nor hath any such appointment ever been legally approved by the court.”

This ground of defence to the rule, branches, in argument, into three specifications, to wit: that the members of the family meeting, convened for the purpose of appointing a dative tutor, were not summoned three days beforehand, to attend said meeting; that upon the death of the mother and natural tutrix of these minors, the under-tutor became functus officio, and a new appointment of under-tutor should hare been made at the same time that a dative tutor was appointed; and that, as there were several minors interested in the petition, there ought to have been a special tutor appointed to defend the interest of each minor therein.

The members nominated by the Judge to compose the family meeting, all appeared before the notary public, two days after the order for its convocation, and having formally waived citation, as appears by the proces verbal, organized the meeting. We do not consider the three days notice as sacramental. The sole object of notice was to insure their attendance, and that object being attained without the expense of notices, was a benefit to the minors.

The vacancy of the office of tutor by death or amotion, does not vacate that of the under-tutor. On the contrary, it is the duty of the under-tutor in such case, on his responsibility, to cause another tutor to he appointed. C. C. 308. 2d Annual, 942.

The objection that there should have been a special tutor appointed ad hoc, for each minor interested in the partition, is well taken. Civil Code, Article 1291. 5 Ann. 208.

In the present instance, there were two minors interested in the partition, both represented by the same tutor — a case falling within the letter of Article 1291 of the Code; and what rendered the observance of the requirement of this article for the appointment of special tutors for each minor more peculiarly appropriate, (apart from the letter of the law, which is imperative,) was the fact, that the tutor of the two minors was himself the husband of one of their co-heirs, and as such a party to the suit in partition. It is not here out of place to remark, that this tutor purchased, in his own name, at the sale in question, six out of the twelve slaves belonging to the succession.

We are of opinion, that the neglect to appoint tutors ad hoc to each of the minors interested in the partition, releases Palfrey from his obligations under the adjudication of the 19th October, 1852.

It is therefore adjudged and decreed, that the judgment of the District Court be affirmed, with costs.


author: Ogden, J. Slidell, O. J. Buchanan, J.,

text:
    City of New Orleans v. Mrs. Graihle.
    The city of New Orleans has the right to sue for the tax imposed under the city ordinance passed in conformity with the Act of the Legislature, of the 12th of March, 1852.
    The provision of the Constitution of 1845, which forbids the State to subscribe to the stock of any corporation, or joint stock company, does not extend to such subscriptions by municipal corporations,
    Decision in Police Jury v. McDonogh's Succession, 8 Ann., affirmed.
    The case of the Police Jury v. McDonogh's Succession, was elaborately argued and carefully considered, and (by Slidell, & J.) upon the faith of that decision we may reasonably presume that manifold contracts have been entered into, and large advances of money made, the railroad enterprises then initiated being of great magnitude. To overthrow the decision of a question of such moment would involve a responsibility most grave, and which a court of justice should not assume without the most clear and unqualified conviction that its former conclusion was erroneous. A vacillating jurisprudence in a grievous evil. It would be, especially deplorable with regard to constitutional questions embracing a wide practical range.

      Article 121 of the Constitution of 1845, which provides that “ the State shall not become a subscriber to the stock of any corporation, or joint stock company,” takes from, the Legislature all power to authorize a subscription by a municipal corporation to a corporation or joint stock company. Buchmim^ J., dissenting.
    As the municipal corporation is the creature of the Legislature, so is the Legislature, in its turn, nothing but the creature of the will of the people, as expressed by the Constitution. When that will has imposed a restriction upon the legislative action in any particular direction, the power to legislate in that direction not existing, any attempted delegation to a corporation of a power of that nature is a manifest evasion of the Constitution, and an usurpation of the most dangerous kind. Buchcmcm., J., dissenting.
    The Statute of 13th of March, 1852, is general, and applies to every police jury and every municipal corporation in the State. Now, it is belived, that every foot of ground in Louisiana, is within the territorial jurisdiction of some police jury, or some municipal corporation. Therefore, the statute has an operation co-extensive with the State, and is, in substance, though notin semblance, a statute to authorize the whole State to become subscriber to the stock of corporations. Buchcmon, J., dissenting.
    The violation of Article 121 of the Constitution, would not be less real, although it would not be so palpable, had the statute authorized but oue subscription by one municipal corporation or police jury. The nullity, the radical vice of want of authority in the party authorizing the subscription, would have equally existed in the case súpposed. Buchwicm, J., dissenting.
    That which the Legislature cannot do constitutionally itself, it cannot constitutionally authorize a municipal corporation to do. Buchcma/n¡ J., dissenting.
    The Act of 15th of March, 1854, authorizes the city of New Orleans to subscribe to the stock of certain railroad companies, directly, in lieu of the tax convertible into stock by the tax payer, imposed by the ordinance passed under the provision of the Act of 12th of March, 1852. The Act requires the couucil, under certain conditions, to repeal the ordinance — but contains the following proviso: “Provided the repeal of said ordinance shall not be so construed as to relieve the city from its liability to collect and pay over to said railroad company, that portion of the railroad tax imposed under said ordinance, for the year 1853, which has not yet been collected and paid over to said company.” By the Goimt: This proviso immediately follows a peremptory requirement by the Legislature, of a repeal of the ordinances of the 18th and 17th of May, 1852. The analysis of these ordinances has shown that they imposed taxes on all landed estates, collectable one-sixth each year, through six years, 1853,1854,1855,1856,1857 and 1S58. The repeal of the ordinances, then, abolished the whole tax — the one-sixth payable in 1853, as well as the five-sixths payable in the five subsequent years. The injunction to repeal is entire — reserves no portion of the taxes. Under these circumstances, the proviso is simply unmeaning. BuchaAicm, J., dissenting.
    APPEAL from the Sixth District Court of Now Orleans, Gotten, J.

      Labaii '& Eustis, Jr., and Eandell Hunt, for plaintiff's and appellants. Qraihlo, for defendant.
   Ogden, J.

The first question presented in this case is, whether the city can maintain an action to recover the tax imposed by its ordinance on the owners of real estate, to meet their subscriptions to the stock of the two railroad companies, known as the New Orleans, Jackson and Great Northern, and the New Orleans, Opelousas and Great Western Railroad Companies. That question was not raised in the case of the Police Jury v. John McDonogh’s Succession, in which this court affirmed the constitutionality of the Act of the Legislature of the 12th of March, 1852, under the authority of which the ordinance, providing- for the subscription by the city to the stock of these companies was passed; but we can see no reason to doubt the right of the city, to prosecute the delinquent tax payers under that ordinance. The subscription to the stock of those institutions has created a debt which the city is bound to discharge, and the means of discharging it has been granted by the law, which authorizes the city to levy a tax, for that purpose, on the owners of real estate within its limits. The collection of the tax by resort to legal process is necessarily embraced within the powers conferred, of making the subscription, and of imposing the tax to meet it.

The second question involved in this appeal, is precisely the one decided by this court, in the case referred to of the Police Jury v. McDonogh's Succession, 8th Ann., to wit, the constitutionality of the Act of the Legislature authorizing the subscription. We had occasion, when the question was then presented, to examine the subject fully, and had the aid of all the light which could be thrown on it by the able discussions the subject has elicited, both in our own and in our sister States, and we came to the conclusion that there was no ground on which we could feel ourselves authorized to declare the Act of the Legislature unconstitutional. The court below has affirmed the verdict of a jury in the present case, which in opposition to the opinion expressed by this court, declares that the Legislature, in passing the act authorizing the subscriptions, have transcended their powers, and it again becomes our duty, on the appeal taken by the city, to pass on the same question between other parties.

The opinion in the former case was prepared with much care by the member of this court who then acted as its organ, and the conclusion to which the court came is, we think, supported by sound reason and high authority. . The question being one which had undergone judicial investigation in other States of the Union, the decisions of the highest courts in those States were referred to in support of the opinion then pronounced. Some of the principles then settled by this court, are recognized in other decisions of our sister States, not then referred to. See cases of Slack, &c. v. Maysville and Lexington Railroad Company, B. Monroe’s Ky. R., vol. 13, p. 1. Justices of Clarke Cy. v. The P. W. and K. R. Turnpike Company, 11 do. B. Monroe, 143.

On the review of that opinion, we still adhere to its correctness. In that case, it was held by us:

1st. That the restriction imposed by Articles 108 and 109 of the Constitution of 1852, upon the aid to be given by the State to corporations for internal improvements, did not limit the aid which the parish and municipal corporations of the State might grant for such purposes.

2d. That the provision in the Act of the Legislature of 1852, referring it to the voters on whose property the tax was to be levied, to decide whether the ordinances imposing the tax should take effect, did not conflict with the letter or the spirit of the Constitution.

3d. That the burden imposed by that act on the owners of real estate, was a tax for local purposes, and that the duly constituted local authorities were the proper judges, to determine whether the public good within the limits of the local government, warranted the imposition of such tax.

4th. That the provisions by which the tax payers were constituted stockholders to the extent of the taxes paid by them, did not change the true nature of the law, as one imposing a tax for local purposes, and could not be considered as a grievance, but rather as a benefit to the tax payers.

We are satisfied that the principles thus declared, are conformable to reason and to the true and correct theory of our State Government. The taxing power for local purposes has alwaj's been exercised under legislative control by the subordinate local governments in the State; and under all the State Constitutions which have been adopted, the people have acquiesced in this, as one of the necessary means of carrying on the government, so that it has been the settled and uniform practice for the Legislature to delegate to the municipal governments presiding over the affairs of the cities, towns and parishes, throughout the State, all that portion of the legislative power which relates to taxation for local purposes. The power so delegated to the city of New Or-ieanS) ]las been long exercised by its constituted local government without complaint, and under it, the commercial prosperity which the city enjoys, has been gradually increasing. The opposition which is made to the exercise of that power in the case of taxation for railroad purposes, is founded on some distinctive features of the law authorizing the imposition of taxes which have not existed in the prior legislation, and are supposed to conflict with the Constitution. Those features, distinguishing the present from former laws authorizing taxation for local purposes, are :

1st. That the agency of a private corporation is adopted for the purpose of effecting the object for which the taxes are imposed, and that the taxes, when collected, are paid over to those corporations who are bound, under their act of incorporation, to apply the money So paid, to the construction of the work or improvement in aid of which the tax is levied.

2d. That the ordinance of the municipal government imposing the tax, to be thus applied by a private corporation to the projected public improvement, is required to be approved by a majority of those on whom the tax is to fall, at an election to be held for that purppse, before the ordinance shall take effect.

Whether it has been wise and prudent in the legislative department of the government, to make these innovations in the laws heretofore regulating the subject of local taxation, it is not our province to decide. Under this new legislation, great abuses may spring up. In regard to the application of the money which the tax payers are required to contribute for such improvements, there may be stronger grounds of dissatisfaction and complaint, than those which have been heretofore so common, in relation to the disposition of the public funds, often lavishly squandered for useless or improper objects; and it cannot be denied, that the test of a popular election, to ascertain the will of the majority of those by whom the tax is to be paid, is uncertain in its nature and liable to great corruption and abuse. But these objections furnish no ground for the interposition of the judiciary to arrest such a course of legislation, however disastrous .the consequences with which it may be fraught, The only guide set before the judiciary in administering the laws which are made by an equal and coordinate department of the government, is the Constitution of the State, which both alike are sworn to support.

Wo find nothing in these new features, which have been introduced into the legislation of the State, that conflicts with either the Constitution of 1845, which existed when the statute was enacted, or with the present Constitution of 1852, Both Constitutions recognize the power of taxation, without any other qualification than that of equality and uniformity, from which it follows that the Legislature may delegate the power of taxation for corporate purposes, to the municipal governments of all the political subdivisions of the State, subject only to that qualification, and as each of these political divisions of government are formed on the basis of equal representation, the great principle of a republican government, that there shall be no taxation without representation, is fully carried out — the evils which, notwithstanding, still remain, are inseparable from such form of government — and the Constitution has no remedy against them. It is, therefore, no ground for our interference, that the taxes imposed and collected for the purpose of such improvement, may he misapplied or squandered by the private corporations who are selected as the agents to carry out the purposes of the municipal government in imposing the tax. .

The other objection founded on the reference of the ordinance imposing the tax, to the tax payers for their approval, was fully considered in the former opinion pronounced by us, on that subject, and there is no principle of the Constitution, which is violated by such legislation. The Act of-the Legislature possesses the full vigor and effect of a law enacted with all the formalities prescribed by the Constitution ; it is a law not mandatary, but premissive in its character. It was within the constitutional power of the Legislature, to have authorized the local government to levy a tax for any corporate purpose, absolutely and unconditionally. They thought proper, however, to grant the permission on two conditions: 1st That the representative local government should pass the ordinance. 2d. That a majority of the tax payers should approve it.

It has been long felt as a serious objection to the manner in which the municipal local governments are conducted, that those who do not own any real estate, and who pay no taxes, have as great a voieg in passing laws imposing taxes on real estate, as the owners of real estate themselves, on whom alone the tax is to fall. No constitutional objection, however, has been supposed to exist to this mode of levying taxes, and we can only see in that feature of the Act of the Legislature in question, a partial remedy for that evil which is founded in correct and just principles, and does not conflict with the letter or spirit of the Constitution.

Our views are fully expressed in the former, case, as to the power of the municipal government to impose a tax for works of internal improvement not wholly within the limits of the local government, or of the State. The termini of the two roads are within tire limits of the city, and the tax is imposed for a corporate purpose. To open new channels for the commerce of a city, when necessary to sustain it in the competition with other cities for its due share of commercial prosperity, falls withjn the legitimate objects of a government founded to protect its interests and advance its prosperity. If the taxation for that purpose, which becomes necessarj' in the judgment of the representatives of the people who support such government, is equal an.d uniform, no principle of the Constitution is violated, however onerous the taxation may be. The constitutionality of the measure is not affected by the great abuses which may result from the exercise of such a power, provided the object for which it is exercised, relates to the public welfare,.

It remains to notice the special objection to the Act of the Legislature, which the Judge of the court below thought was,a sufficient ground for declaring it to be unconstitutional.

The Constitution of 1845, which was in force when that Act was passed, contained a provision, that the State should not become subscriber to the stock of any corporation or joint stock company. It was the opinion of the Judge of the court below, that this inhibition extended to the municipal corporations of the State. The Article of the Constitution in its tenor, only applies to ¡the State in its corporate capacity, and we do not think we would be authorized f© extend it to the corporations which the Constitution authorizes the Legislature to create for political or municipal purposes, unless such inhibition is necessarily implied; and in order that it be necessarily implied, we must be of the opinion that the reason for the inhibition in regard to the State becoming subscriber to the stock of a corporation or joint stock company, applies with pre.-cisely the same force to the political and municipal corporations whieji it wjjs contemplated would be created by the Legislature, and that it is impossible to suppose the one was intended without the other. We think, on the contrary, that the framers of the Constitution might well have thought it proper to prevent the State from incurring a debt or from employing its means, in taking stock in such companies, while they were willing that the parishes, towns and cities, enjoying a distinct municipal government, supported by local taxation, should be left free to act in that respect as might best suit thoir interests. As the Constitution speaks of the State, which is a distinct corporate body, and of other corporate political bodies to be created, and the inhibition is applied to the former and not to the latter, it would be the exercise of arbitrary power in us thus to extend this Article of the Constitution, by construction, beyond its letter.

After the most careful examination of the subject in all the various aspects in which it has presented itself to our minds, we conclude there is nothing which could authorize us to set aside the deliberately expressed will of the Legislature, on the ground that they have transcended their constitutional power. While this court, in the discharge of the duty confided to it of deciding in the last resort on the constitutionality of legislative acts, may bo said to be clothed with a power higher than that of either the legislative or executive branches of the government, we cannot lose sight of the true nature of that high function which it was not intended should be arbitrarily exercised to correct the abuses of power other departments of the government, against which the Constitution itself has furnished no security. We should be transcending the limits of onr own constitutional duty, by declaring null and void an Act of the Legislature, except when a case presents itself, in which the clearest conviction is forced on our minds, that the Legislature have misunderstood the language of the Constitution and violated the letter or spirit of that instrument, and as such conviction has not been produced in regard to the law under consideration, it is our duty to uphold and enforce it.

The proviso in the Act of the Legislature of 1854, that the repeal of the city ordinances shall not have a retroactive effect, so as to relieve the city from the liability to collect and pay over to the railroad companies, that portion of the tax for the year 1858 not yet collected, we think meets the objection which exists in the mind of one of the members of the court, arising out of the passage of these acts, subsequent to the judgment rendered in this case.

The city ordinances, imposing a tax for 1853, have been partially carried into effect by the collection of the tax, and those ordinances were only repealed as to the taxes imposed for the subsequent years. The railroad companies will be bound to furnish certificates of stock, to all the delinquent tax payers, when they shall have complied with the law, and paid their taxes for the year 1853.

A judgment is asked for five per cent, on the whole amount of the taxes due by the defendant, as commissions of the City Assistant Attorney, directed to be paid by the defaulting tax payer, under the Act of the Legislature of 1853. It was made the duty of the Treasurer, by the Act passed on the 15th of April, 1853, to hand over all unpaid bills for taxes to the Assistant Attorney of the city, on the first Monday of May of each year; and it was made the duty of the Attorney to put them in suit immediately. The act further provides, that there shall be added to the amount of each bill, thus confided to the Attorney, a commission of five per cent, on the amount of the bill, to be paid by the defaulting tax payer, and received by the Attorney in full compensation for his services. By a supplementary Act passed the 30th of April, the time of payment of the city taxes for the year 1853, was extended to the 1st of July, when the bills unpaid were to bo handed over to the Attorney. There were separate bills made out against the defendant for her railroad taxes, and we are of opinion that the tender of payment of the two bills for the other taxes before they were confided to the Assistant Attorney for collection, relieves the defendant from the obligation of paying commissions on them, and also from interest.

It is therefore ordered and adjudged, that the judgment of the court below be reversed; and proceeding to give such judgment as in our opinion ought to have been given in the court below, it is further ordered, adjudged and decreed, that the plaintiff recover from the defendant, the sum of two thousand six hundred and sixty-four dollars sixty-two cents, with eight per cent, interest per annum, on the sum of eight hundred and forty-nine dollars and seventeen cents, from the 1st of July, 1853, and five per cent, commissions on the same amount, to wit, the sum of forty-two dollars forty-five cents, as commissions to be paid to the Assistant Attorney of the city, and that the defendant and appellee pay the costs in both courts.

Slidell, O. J.

Some time since, we had occasion to consider the question of the constitutionality of the Act of 12th of March, 1852, entitled an Act providing for the subscription by the parishes and municipal corporations of the State, to the stock of corporations undertaking works of internal improvement, and for the payment and disposal of stock so subscribed. The subject was deemed of so much public importance, and so large a mass of the community was interested in the question, that the court invited argument from the profession generally, and without reference to a retainer in the particular case. The cause was ably argued, and after careful deliberation, resulted in an unanimous decision in favor of the constitutionality of the statute. Upon the faith of that decision we may reasonably presume that manifold contracts have been entered into and large advances of money made, the railroad enterprises then initiated, being of great magnitude. To overthrow the decision of a question of such moment would involve a responsibility most grave, and which a court of justice should not assume without the most clear and unqualified conviction, that its former conclusion was erroneous. A vaccillating jurisprudence is a grievous evil. It would be especially deplorable with regard to constitutional questions, embracing a wide practical range. Misera est servitus ubi jus est vagum amt inaertum. So far from being satisfied that the former decisions was manifestly erroneous, a review of the subject leaves my opinion unchanged, and I am only induced to say anything now on the question, by deference to the views of one of my brethren.

Mr. Justice Buchanan considers the unconstitutionality of the statute deducible from the Article 121 of the Constitution of 1845, which Constitution was in force when the statute of March, 1852, was enacted, and which article declares that the State shall not become a subscriber to the stock of any corporation or joint stock company. My recollection is distinct, and I think the recollection of some of my brethren must be concurrent, that in our consultation before the preparation of the opinion in the case referred to, the spirit and effect of this article was considered, and our unanimous opinion was that the inhibition of the State did not imply a restraint of the legislative power to delegate to municipal bodies authority to subscribe to such corporations. The reason the point was not expressly noticed in the opinion of the court, probably was, that it was virtually embraced in what was expressly said upon the kindred article of the Constitution of 3852. It had been argued for the defendant, that the Article 109 of the Constitution of 1852, limited the power of the Legislature, i. e. of the State, to a subscription within certain amounts for the stock of internal improvement companies; and it was said this restriction would be evaded by permitting the Legislature to confer on municipal corporations the power to tax the people for an unlimited amount. In answering this argument, the court observed: “It is true the Statute of 1852, imposes no limit of amount upon the subscription of municipal corporations; while the subsequently adopted Constitution of 1852, does limit the grant of State aid. But it is clear this difference involves no constitutional repugnancy ; and on the score of policy and prudence, there was a reason for limiting the power of the Legislature, who were to impose a burden upon the entire population, for purposes which might result in unequal advantages to portions of its inhabitants ; while in the matter of local taxation, there was a safeguard in a greater identy of interests, and in the control of the vote of the tax payer.’

This reasoning affords an equally conclusive answer to the argument, deduced from the prohibition contained in the Article 121 of the Constitution of 1845. The two articles differ only in degree. The one prohibits any subscription at all to the stock of any corporation; the other prohibits subscription beyond a certain amount anda certain class of corporations.- Both restrictions were dictated by the same eonsideration^the fear that the.public treasury, which is supplied by the contributions of the proprietors of every section, might be unjustly used for purposes resulting in advantages to particular sections not equally shared by others; while in the matter of municipal taxation, operating only on small sections of the State, there was a safeguard in a greater identity of interest.

Upon the question of the legality of the tax as affected by the omission to furnish lists duly certified, I concur in the conclusion of Mr, Justice Ogden.

Upon the question of the repeal of the ordinance, supposing the question were properly before us, I have to say but a few' words. I am not prepared to say that a person paying the tax, would be without right to receive stock. I think the conclusion of Mr, Justice Ogden, on that point, is correct.

If the repeal of the ordinance in anywise impairs any vested right of the tax payers., it is sufficient to say that such subsequent legislation, so far as it would tend to impair such vested right, would be constitutionally inoperative.

My only reason for alluding at all to points not presented by the record is, that they are noticed in the opinion of Mr. Justice Buchanan. I must not be considered, however, as recognizing the doctrine that this court can take judicial notice of municipal legislation. I think municipal ordinances should be pleaded and proved.

Buchanan, J.,

dissenting. The question presented by the pleadings in this case, is the constitutionality of the Act of the Legislature, approved 12th of March, 1852, entitled “ an Act providing for subscription by the parishes and municipal corporations of this State to the stock of corporations undertaking works of internal improvement, and for the payment and disposal of stock so subscribed.”

This question was before the court in the June term, 1858, in the case of the Police Jury v. McDonogh's Executors, and was in that case decided in favor of the constitutionality of the law in question. The great mass of authority which was brought to bear upon the subject, in decisions of the supreme tribunals of our sister States, collected in the ver}’' elaborate and learned opinion of the Chief Justice delivered in that case, induced my concurrence in the conclusions of that opinion. But I rejoice at the opportunity now afforded, of reconsidering the question, because much reflection on the subject has convinced me, that a contrary conclusion to that in the HcDonogh case, necessarily follows from a provision of our own State Constitution, which of course could not have been considered in any of the decisions of the courts of other States.

I allude to Article 121 of the Constitution of 1845, the Constitution in force on the 12th of March, 1852. That Article is expressed in the following words: “ The State shall not become subscriber to the stock of any corporation or joint stock company.” I take this to be clearly a limitation or restriction of the legislative power; for a subscription by the State to stock, were it allowed, could only be made by a statute or Act of the Legislature. When, therefore, the Constitution said, “ the State shall not become subscriber to the stock of any corporation or joint stock company,” it was tantamount to saying, “ the Legislature shall not pass any law authorizing a subscription by the State to the stock,” &c.

As long as the Constitution of 1845 remained in force, the Article 121 of that instrument opposed an insuperable bar to any legislative enactment having for its object a subscription to stock. That which the Legislature was powerless to do itself, it has nevertheless authorized every police jury and every municipal corporation in the State to do, by this Statute of the 12th of March, 1852. And this authorization so given is, bj’ its terms, unlimited — a general power of subscription to be exercised every where and at all times.

In considering the operation of this law, in relation to the Article 121 of the Constitution, we must first take into view the nature of a corporation. • It is a fictitious person, the creature of the law, deriving all its vitality from the law, and possessing no attributes or functions but those expressed in the law.

As regards municipal corporations, they are of the class denominated in the Civil Code political, which are defined (Art. 420) to be such “ as have principally for their object, the administration of a portion of the State, and to which a part of the powers of government is delegated to that effect.”

The municipal corporations of the State of Louisiana could have had, then, no power to subscribe for the stock of any other corporation or joint stock company, unless such power was given them by law. And this brings us to the inquiry — could the Legislature confer upon the municipal corporations a power which it did not itself possess? In matters of contract, and matters of inheritance, the maxim is, “ nemo ad, alium plus juris transferre potest, qua/m, ipse Tiabeatf This rule seems to result from the necessity of things. No one can give more than he has. And if its soundness be admitted in the relations of men with each other, there seems a more peculiar propriety in its application to the operations of a constitutional government. As the municipal corporation is the creature of the Legislature, so is the Legislature, in its turn, nothing but the creature of the will of the people, as expressed in the Constitution. When that will has imposed a restriction upon the legislative action in any particular direction, the power to legislate in that direction not existing, any attempted delegation to a corporation of a power of that nature, is a manifest evasion of the Constitution, and an usurpation of the most dangerous kind. The Constitution of the United States prohibits any State from passing a law impairing the obligation of a contract. Will any person pretend that the Legislature of Louisiana could authorize the corporation of New Orleans to pass an ordinance to annul and avoid one of its contracts ? Tet this would be a legislative enactment of the same .kind with, that of the 12th of March, 1852. It will be objected, perhaps, that the Act of March 12th, 1852, does not authorize a subscription to stock in the name of the State. To this I answer, first, that the statute is general — applying to every police jury, and every municipal corporation in the State. Now, it is believed that every foot of ground in Louisiana, is within the territorial jurisdiction of some police jury, or some municipal corporation. Therefore, the statute has an operation coextensive with the State, and is in substance, though not in semblance, a statute to authorize the whole State to become subscriber to the stock of corporations. And, secondly, the violation of the Article 121 would not be less real, although it would not be so palpable, had the statute authorized but one subscription by one municipal corporation or police jury. The nullity, the radical vice, of want of authority in the party authorizing the subscription, would have equally existed in the case supposed.

I conclude that the Statute of the 12th of March, 1852, is void for unconstitutionality. I base my opinion upon the doctrine, that what a Legislature cannot constitutionally do itself,, it cannot constitutionally authorize a municipal corporation of the State, its creature, to do. • And this doctrine is not at variance with any authority quoted in the decision of the case of the Police Jury v. McDonogh's Executors. It is not at variance with that decision itself, properly considered; for, singularly enough, the Article 121 of the Constitution of 1845, was not adverted to, either in the argument or in the decision of that case. The argument turned, indeed, in part upon the Article 108 of the Constitution of 1852, which is a modification of the 121st Article of that of 1845. But this argument was met, in the decision pronounced, by the very obvious response, that the Constitution of 1852 was not in force, when the Act was passed.

I now pass to the consideration of another matter, which, in my opinion, has taken away the right of action in this case, so far as the railroad taxes are concerned.

Two Acts of the Legislature were approved on the 15th of March, 1854, entitled respectively, “ an Act providing for the subscription by the city of New Orleans to the stock of the New Orleans, Opelousas and Great Western Railroad Company”; and “ an Act for the subscription by the city of New Orleans, to the stock of the New Orleans, Jackson, and Great Northern Railroad Company.”

The date of the passage of these acts, which was subsequent to the judgment of the District Court rendered in this cause, sufficiently accounts for their not being noticed in the pleadings nor in the reasons for judgment. But if they shall appear, upon examination, to have materially modified the rights of the parties litigant, we have the authority of Judge Martin for saying, that we are bound to notice a change in the law made since the rendition of the judgment in the court below. Atchafalaya Bank v. Dawson, 13 La. 510, 511.

The two statutes in question are in all respects literal copies of each other, with the exceptions which will be hereafter noticed. They authorize the common council of the city of New Orleans to subscribe to the stock of the Ope-lousas railroad, for one million and a half of dollars, and to the stock of the Jackson railroad, for two millions of dollars. They prescribe the clauses of the ordinances to be passed by the city council, for the subscriptions thus authorized. Those clauses are:

1st. A statement of the number and amount of the shares subscribed.

2d. The subscription to be made by the Mayor, and paid in city bonds, having twenty years to run, and bearing interest.

3d. A special tax on real estate and slaves, to be levied annually, for the payment of interest on the city bonds, &c.

4th. The bonds to be issued as called for by the railroad companies.

6th. The ordinances of the city council, approved May 13th and May 17th, 1852, providing for the subscription by the city, to the stock of the Jackson and Opelousas Railroads, (the ordinances under which the present suit is brought,) to be repealed — “provided,” says each statute, “ the repeal of said ordinance shall not be so construed as to relieve the city from the obligation to collect and pay over to said railroad company, that portion of the railroad tax imposed under said ordinance for the year 1853, which has not yet been collected and paid over to said company.”

Subsequent sections in each statute provide, that the railroad companies shall receive, at par, the city bonds issued for the subscription to their stock; that the board of directors of each railroad company shall notify, in writing, to the Mayor, their acceptance of the city ordinance prescribed by the act.; that upon such acceptance, the ordinance shall bo submitted to the voters of the city, who have the right, under existing laws of voting' at city elections, for approval and ratification, at an election to be held for that purpose, and shall only take effect after such approval by a majority of such voters ; that bonds issued by the railroad companies, and secured by a pledge of the railroad tax for 1854, 1855, 1856, 1857, and 1858, levied under the ordinances (repealed) of 13th and 17th of May, 1852, shall be canceled by the company which issued the same, before the said company shall receive from the city any of the bonds authorized to bo delivered for subscription to the stock of said company, by virtue of this act, &c.; and, lastly, that the city council shall elect annually, three directors in each of the railroad companies mentioned in the acts.

I assume as facts of public notoriety, that the city council of New Orleans have passed the ordinances required by the Acts of 15th of March, 1854, above mentioned; that said ordinances have been accepted by the Jackson and Ope-lousas Railroad Companies, for whoso use and benefit the present suit is prosecuted in this court; that an election has been held, at which the said ordinances have been approved by a majority of the voters; and that the Mayor has subscribed in the name of the city for stock, and city bonds have been issued, for the amount of such subscription, according to those statutes and ordinances.

It is apparent, from a review of the legislation, that the subscriptions to railroad stock authorized by the two Acts of 1854, were intended to take the place of the subscriptions to the stock of the same companies, made by the city ordinances of the 13th and 17th of May, 1852, This fact clearly results from the obligation imposed by the Legislature upon the city corporation, of repealing the ordinances of 1852, simultaneously, and in the same ordinance, with, their subscriptions for precisely the same sum under the Act of 1854. It results with equal clearness from the requirement of the formal acceptance by the railroad companies,'of the ordinance repealing the previous subscription, as a condition precedent to the validity of the subsequent subscription.

The city subscription of 1852, to the stock of the two railroads having, then, been superceded by subscriptions to a like amount in 1854, which last subscription is either paid or payable in city bonds, what is the position of the property holders, upon whom was assessed the payment of the first subscription ? This question does not concern those who have paid their railroad tax of 1858. Probably they have got certificates from the railroad companies, as provided by the Act of 12th of March, 1852, section 4, for the amount of the tax by them paid, are satisfied with those certificates, and not inclined to insist upon their original right to acquire more certificates of railroad stock, by paying more annual installments of railroad tax. At all events, they are not before us. But the present defendant, who has never paid the tax, or any portion of the tax assessed to her under the ordinances of 1852 — before condemning her to pay this claim, even-handed justice requires that we should examine whether Tier position has not been changed to her disadvantage, since this tax was levied, by the State and municipal legislation which we have been reviewing; and should such appear to be the case, I maintain that upon legal principle, she is released from her obligation to pay.

The defendant being a woman, did not vote at all upon the question of approving and ratifying the ordinances of May, 1852. Conceding, however, that she was bound by the vote of the majority of the holders of landed estate who vote, the Act of 1852, and the city ordinances passed under it, in imposing an obligation upon her, conferred, at the same time, a valuable right— whatever she was to have joaid, was so to be paid for her own individual benefit. The subscription was m name a subscription by the city of New Orleans— but, in reality, a subscription by the owners of landed estate in New Orleans; and the payment of the tax was a payment of that subscription, entitling the payer to a certificate of stock of like amount, transferable by delivery.

Such was the defendant’s original position. But should payment now be enforced from her, she would pay without receiving any certificate — any equivalent. And why? Because the ordinances of 1852 have been repealed, which ordinances were her only title to such equivalent. It would be in vain to say, that the right to the certificate is expressed in the Act of the Legislature of the 12th of March, 1852. That act applied pin terms to no particular case of subscription. It authorized, generally, subscriptions by police juries and municipal corporations. The corporation of New Orleans availed itself of that authorization, and passed the ordinances of the 18th and 17th of May, 1852 — ordinances expressly referred to as the source of defendant’s obligation upon the face of the bills, which supply the place of a petition in this record. The ordinances are repealed — not merely with the consent, but by the command of the Legislature — and the city has issued its bonds for the whole amount of its subscription, which bonds the railroads are obliged to take at par. Of course, those companies cannot give their certificates to individuals for stock for which the city has paid. Still less can they give them for stock which, by the repeal of the law creating it, has ceased to have any legal existence.

It has been repeatedly held by the Supreme Court, that if judgment be eor-rectly given under a law which is repealed pending the appeal, the judgment must be reversed. 12 La. 547. 13 La. 497. 17 La. 478.

It is clear to my mind, that the defendant is released from the obligation of paying the railroad tax of 1853, by the repeal of the ordinance which imposed it, and by the substitution of a subscription in which she can claim no share, in the place of one in which she would have been entitled to a share proportionate to her payments.

This proposition would seem indeed unsusceptible of controversy, were it not for the proviso in the 5th paragraph of the 2d section of the Acts of 15th March, 1854, declaring that “the repeal of the said ordinances, (those of 13th and 17th of May, 1852,) shall not be so construed as to relieve the city from the liability to collect and pay over to said railroad companies, that portion of the railroad tax imposed under said ordinances for the year eighteen hundred and fifty-three, which has not yet been collected and paid over to said company.”

This proviso immediately follows a peremptory requirement by the Legislature, of a repeal of the ordinances of the 13th and 17th of May, 1852. The analysis already made of those ordinances, has shown that they imposed taxes on all landed estate, in the one case, to the amount of two .per cent., and in the other, to the amount of three per cent., collectable one-sixth each year, through six successive years — 1853, 1854, 1856, 1856, 1857 and 1858. The repeal of the ordinances, then, abolished'the whole tax — the one sixth payable in 1853, as well as the five-sixths payable in the five subsequent years. The injunction to repeal is entire — reserves no portion of the ordinances- — -no portion of the taxes. Under these circumstances, the proviso above quoted is simply unmeaning. What liability could there be on the part of the city to do a legal impossibility — to collect a tax which had been repealed ? This proviso may be viewed as an instance of that careless legislation which too often disfigures the statute book.

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


author: Ogden, J. Buchanan, J.,

text:
    City of New Orleans v. Mrs. J. C. de St. Romes.
    That part of the 3d section of the Act of 1852, (an Act providing for the subscription by parishes and municipal corporations of the State to the stock of corporations undertaking works of internal improvement,) which requires that the police jury or municipal corporation shall cause to be furnished to the commissioners of election a properly certified list of the authorized voters, is directory only, anda failure to furnish said list, cannot be regarded as a condition precedent to the validity of the subscription.
    "Where a formality is not absolutely necessary for the observance of justice, but is intended to facilitate its observance, its omission, unless there is an annulling clause in the law, will not annul the act.
    A statute is to be considered as imperative in every particular which is essential to the thing required to be done, and merely directory as to those which are immaterial. Buc7imum, J., dissenting.
    The legislative injunction contained in the 3d section of the Act of 3852, to furnish to the commissioners of election a certified list of voters who were landed proprietors, was imperative, and the furnishing of such lista condition precedent to the holding of a valid election under the statute, in default of which the ordinances subscribing to stock remained without effect. Buclmnwti^ J., dissenting.

      Under tlie Act of 1S52, the city is made the mandatary of the landed proprietors, for the purpose of subscribing to the stock of railroad companies. Bucha/n-mVy J., dissenting.
    It is a general rule of the contract of mandate, that the principal is only bound to execute the engagements of his agents, conformably to the power which has been conferred. C. 0. 2290. Bu-clicmcm, J., dissenting.
    A mandatary, under a special power, must confine himself strictly within the limits assigned to him, and those dealing with him must, at their peril, see that he does not exceed his authority — but they need not, in search of his powers and their limitations, look beyond the instrument of mandate. Bicchajian^J., dissenting.
    If the clause of the Act of 1852, under consideration, was not a condition precedent, the omission of which imported a nullity of the ordinances by the terms of the statute itself, it was, at least, a condition subsequent, essential to the validity of the election held under the ordinances. Sucha-newt, J., dissenting.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Labatt & Eustis, Jr., and liandell Hunt, for plaintiff and appellant:
    In B. v. Woodslanton, 1 Bott, 010, (cited in Dwarris on St., 714,) the distinction between directory and compulsory statutes was applied to st. 43, El. c. 2, s. 5, which enacted that male apprentices should be bound out by the parish till the age of 24; yet a binding till 21 was held to confer a settlement— for the statute is only directory in this respect.
    In R. v. Lonsdale, 1 Burr., 447, Lord Mansfield says, there is a known distinction between circumstances which are of the essence of the thing required to be done by an act of Parliament, and causes merely directory.
    In Banin of the Northern Liberties v. Gresson, 12 Serg. & Rawle, 314, the court recognize this distinction, and say: Under our land laws, the act of assembly directs the surveyor to run and mark the lines on the ground, and further enacts, that all surveys made before the warrant authorizing' it comes to his hands, shall be accounted clandestine, and shall be void and of no effect. The first injunction is directory, the latter provision is imperative and peremptory.
    In Banin of the United Slates v. Dandridge, 12 Wheat. 81, there are man}' cases where an act is prescribed by law to be done, and record made thereof, and nevertheless, if left unrecorded, the act is valid. By the English Marriage Acts, registers of marriages are required to be kept in public books in every parish, and signed by the parties and the minister, and attested by two witnesses. Yet it has been decided that such an entry is not necessary to the validity of the marriage, and that an erroneous entry will not vitiate it. If a regulation be merely directory, then any deviation from it, though it may subject the officers to responsibility, &c., cannot be taken advantage of by third persons.
    In Dwarris on St., 716, the same doctrine is cited.
    19 Wendell, page 135, Molurnh and Hudson Railroad Company.

    19 Wendell, page 630, Ghenung Qounty Insurance Gompany.

      Larue & Whitaker, for defendant:
    This suit is brought to recover from defendant a sum of money for the benefit of the New Orleans, Opelousas and Great Western Railroad Company, and the New Orleans, Jackson and Great Northern Railroad Company. The plaintiffs claim that it is a legitimate tax which the defendant is bound to pay— and it is either a tax, a forced expropriation of private property for the benefit of two private corporations, or a forced subscription to the stock of said corporations — at all events, it is taking the property of the individual for public or private uses. Whichsoever of these it may be, there can be no doubt that the law, if any, under which the claim is made, should, on the part of the plaintiffs, have been strictly complied with before any judgment could be rendered in their favor. Hiriari v. Morgan, 5 L. R. 45. Winchester v. Gain, 1 R. R., 424. Morris v. Grolcer, 4 L. R. 150.
    The last quoted case was one in which the validity of a title under a sale for taxes was involved, and the court remarks: “It was a sale for taxes, and in such sales, according to the principles of jurisprudence established by several decisions of the Supreme Court of the United States, and which prevail generally in the several States of the Union, the purchasers are bound in order to give force and validity to their titles, to show that all the formalities required by law in alienations of this kind, have been fully and faithfully complied with. These principles we consider to be founded in justice and sound policy. Sacrifices of property of great value are frequently made in consequence of slight inattention of owners or their agents, by officers of the government in the collection of taxes, and avarice and immoral cupidity often lead purchasers to avail themselves of advantages acquired under legal pretexts, contrary to the moral precept which requires men, to act towards their neighbors as they would think just towards themselves under similar circumstances.”
    If this principle be true of sales for taxes, it is equally true of the act of taxation itself; for it would matter but little how a sale took place, or the judgment upon which it is founded were obtained, if the original exercise of the taxing power was in violation of right and law. The Constitution of the State directs how taxes shall be imposed by the general assembly — the charter of New Orleans is equally explicit in relation to taxation in the corporation. If one or the other should pass an act or an ordinance imposing taxation violating the organic law or the city charter, could the court give any effect to such acts ? Is this railroad tax, as it is called, different from any other, in such matter as takes it out of the general and just rule ?
    The tax, or whatever it may be, is claimed under an Act approved March 12th, 1852, allowing police juries and municipal corporations, &c., to subscribe to the stock of corporations for internal improvements. But the 3d section of that act declares, “ that no ordinance passed under the provisions of this act shall be valid or take effect, until it shall have been appi-oved and ratified by a majority of the voters on whose property the tax is proposed to be levied, at an election to be held specially for that purpose, by order of the police jury or municipal corporation passing,the ordinance ; and the said police jury or municipal corporation shall prescribe the manner of holding such election, and shall cause to be furnished to the commissioners of the same, a properly certified list of the voters,” &c.
    This section should be so construed, “ that no clause, sentence, or word in it, be superfluous, void or insignificant.” Reynolds v. Baldwin, 1 An. 166.
    And being so considered, what does it require ?
    1st. That the ordinance should be approved and ratified by a majority of the voters upon whose property the tax was proposed to be laid — that is, a majority of the owners of real estate in the city of New Orleans, otherwise entitled to vote.
    2d. That such voters, so qualified, shall be designated to the commissioners by properly certified lists of their names.
    The defendant contends that neither the one nor the other of these prerequisites, without which the ordinance is null, and of no effect, has been complied with.
    It appears to the counsel for the defendant, that these certified lists which the law requires, were not au unmeaning and insignificant form. That they were intended for something more than to employ a certain number of agents in their preparation ; that, indeed, they were meant to be a guide to the commissioners in the reception of votes; that they should have been carefully prepared by the proper assessors of the city, by an enumeration of the voters, and by ascertaining which of such voters were owners of real estate, and properly certified according to law, and that when so prepared, they should have been used as any other registry of voters, by the commissioners of the election. It might be well assumed, that the course above indicated, is'the only way in which it could be determined who were properly voters under the law, but whatever opinion may be entertained on that point, it is apparent that this certified list of voters owning real estate, was the sole security which the property holders of New Orleans had against perjury, fraud, and what many of them deemed oppression. It was the sole means by which they could ascertain the right of persons to vote away their property for the benefit of corporations, the existence, objects and management of which, they might not approve. The law designated no other. It is therefore respectfully urged that the list as required by law, should have been made and furnished to the commissioners of the election, and that they should have acted upon it, and that its not having- been done, vitiates the whole proceeding. It is true that the preparation of such a list would have required some time and labor, and the railroad ordinance might not have passed with railroad speed, if passed at all, but that is no reason why the prerequisite conditions imposed by the law to give it efficacy, should not have been complied with.
   Ogden, J.

(Spoffoed, J., not taking part in the case.)

The Sd section of the Act of the Legislature of 1852, providing for the subscription by the parishes and municipal corporations of the State to the stock of corporations undertaking works of internal improvements, is in the following words:

“That no ordinance passed under the provisions of this act, shall be valid or take effect, until it shall have been approved and ratified by a majority of the voters, on whose property the tax is proposed to be levied, at an election to be held specially for that purpose, by order of the police jury or municipal corporation passing the ordinance; and said police jury or municipal corporation shall prescribe the manner of holding such election, and shall cause to be furnished to the commissioners of the same, a properly certified list of the authorized voters; and such election shall be preceded by a notice of thirty days, published in one or more newspapers in the parish or municipal corporation where such election shall be held. Provided, however, that if such ordinance shall be rejected by the majority of the voters, it shall be lawful, at any subsequent period, again to take the sense of the voters, in the same manner as at the first election, and at intervals of not less than six months.”

The defendant being sued for the tax levied on her property, to meet installments due by the city on their subscription to the stock of the New Orleans, Jackson and Great Northern Railroad Oompanjq and of the New Orleans, Opelousas and Great Western Railroad Company, in conformity with an ordinance of the common council, resists the payment on several grounds, as set forth in an original and supplemental answer. There are three grounds taken in the answer first filed, to wit:

1st. “ She denies that the- city has ever subscribed to the stock of the railroad companies aforesaid.

2d. “ That if it has so subscribed, she denies that it has any authority of law to do so, and that all its acts, in relation to said pretended subscription if made, are null and void.

3d. “ That if it has made any such subscription, that she is neither in law nor in equity liable to pay any portion thereof.”

The defence, so far, extends only to a denial that there was any subscription to stock by the city, and of the existence of any law and of any ordinance of the council, authorizing such subscription. The subscriptions to the stock of both companies, by two separate ordinances, and the acceptance of those subscriptions by the companies, are shown by the evidence, and the real de-fence relied on by the council, is that contained in the supplemental answer, and is expressed in the following words: “ That under the city’s subscription alleged, if any such exist, she (the defendant) cannot in any manner or form, be held liable to the said city of New Orleans, inasmuch as it does not appear that said municipal corporation ‘ caused to be furnished to the commissioners of the election, to be held under the provisions of the Act of the Legislature, approved March 12th, 1852, a properly certified list of the authorized voters,’ as said corporation was bound to do, in order to the validity of the ordinances referred to in plaintiffs’ suit; or, in fact, that said corporation furnished any list whatever to said commissioners, that satisfied the provisions of said law, but that, on the contrary, many hundreds of persons voted at the said election, who were not the owners of real estate, who were not on the assessment rolls as such, and who were not on any list, however defective, which may have been furnished to the commissioners by said corporation, and that the whole election is therefore null and void.”

As it is not alleged in this answer, and is not shown by the evidence that a sufficient number of illegal votes were received to affect the result of the election, the defence may be considered as resting on the alleged failure of the municipal corporation to cause to be furnished to the commissioners of the election, a properly certified list of the voters, which it is contended was a prerequisite by the Act of the Legislature to the validity of the ordinance, and the election to be held under it.

It is our duty to ascertain the intention of the Legislature, and to give effect to it; if it was their intention, according to a fair and liberal construction which we are bound to give to an act passed by them, with a view to the accomplishment of great public good, by the promotion of internal improvements, that the furnishing a properly certified list of the authorized voters to the commissioners, should be a condition precedent to the validity of the election, and such list was not furnished, then it would be our duty to pronounce the election null and void. If, on the other hand, that clause in the act, according to such construction, ought to be viewed as merely directory, we should be usurping the power of the Legislature by declaring a consequence to follow from the omission to comply with their direction, which they did not think proper to declare themselves; and which, if such had been their intention, it was their duty to have expressly declared, unless from the nature of such preceptory clause in the law, such intention was sufficiently manifest without being declared. The intention of the Legislature is expressed in this section of the act, that the ordinance shall not be valid, until it shall have been approved by a majority of the voters on whose property the tax is to be levied, at an election to be held for that special purpose, by order of the corporation ; that part of the law is prohibitory' — the corporation are prohibited from enforcing the ordinance for the collection of the tax, until they had caused the same to be approved by a majority of the authorized voters, at an election to be ordered by them — it is a prohibition made in the interest of the tax payers — and if it could be shown that at the election so held, unauthorized votes had been received to a sufficient number to have affected the result, the election, which resulted in favor of the tax, would be declared null, and a prerequisite of the law not having been complied with, the ordinance would not take effect.

Is the intention expressed in the same manner, or can such intention be reasonably inferred, that a failure to comply with the formality prescribed in the subsequent part of the section, of furnishing to the commissioners a certified list of the voters, should prevent the ordinance from taking effect, although approved and ratified by a majority of the votes cast at the election. The intention is not expressed by the Legislature, and from the nature of that part of the law which appears to us to be directory, such intention cannot be inferred on legal principles, applicable to the interpretation of statutes. The rule is, that when a formality is not absolutely necessary for the observance of justice, but is introduced to facilitate-its observance, its omission, unless there is an annulling clause in the law, will not annul the act. Touillier, vol. —.

The object of the Legislature was to facilitate the observance by the commissioners of justice in regard to the admission or rejection of votes. The act does not say by whom the list of authorized voters should bo certified. As no registry of voters existed, such list, no matter by whom certified, would only have furnished a partial guide to the commissioners, as there would necessarily have been many persons legally entitled to vote as owners of property, on whom the tax was to be levied, and whose names were not on the last assessment roll, which was the only official document from which any list could be made. A literal compliance with the law in that respect, was impracticable. The evidence show's that copies of lists of voters from the last assessment roll were furnished, and if this part of the law, which we consider as separate from that which contains a condition precedent, was not literally complied with, either because it was impracticable, or because the proper authorities neglected their duty. Considering it to be merely directory, we cannot construe that provision into a condition precedent. See case of Whitney v. Emmet, 1 Baldwin’s C. C. R. 316.

It is therefore ordered and adjudged, that the judgment of the court below be reversed ; and that there be judgment in favor of the plaintiffs for the sum of four hundred and fifty-five dollars, with eight per cent, per annum interest thereon, from the 1st of July, 1853, until paid; and also five per cent, commissions, to w’it, the sum of twenty-two dollars and seventy-five cents, to be paid to the Assistant Attorney of the city, and that the defendant pay the costs in both courts.

Buchanan, J.,

dissenting. The Act of 12th of March, 1852, section 3d, page 128, declares, that “ no ordinance, passed under the provisions of this act, shall be valid or take effect, until it shall have been approved and ratified by a majority of the voters on whoso property the tax is proposed to be levied, at an election to be held specially for that purpose, by order of the police jury, or municipal corporation passing the ordinance; and said police jury or municipal corporation shall prescribe the manner of holding such election, and shall cause to be furnished to the commissioners of the same, a properly certified list of the authorized voters, and such election shall be preceded by a notice of thirty days, published in one or more newspapers in the parish or municipal corporation where such election shall be held.”

The defendant being sued for the amount of two tax bills, assessed upon the landed estate in New' Orleans, to meet the first installment of the city’s subscription to the stock of the Opelousas and Jackson Railroad Companies, which subscription was made by ordinances of the 13th and 17th of May, 1852, pleads, among other defences, that the said subscriptions are not binding upon her, the ordinances in question not being valid, by reason of the city council or municipal corporation not having caused to be furnished to the commissioners of the election specially held to ratify said ordinances, a properly certified list of the voters authorized to vote at said election, as required by the 3d section of the Act of 12th of March, 1852, quoted above.

The plaintiff attempted to prove, that properly certified lists of the authorized voters had been furnished, but, as I think, has failed in so doing. There were, indeed, lists furnished to the different polls; but the City Treasurer, Mr. Garlu/nd, informs us what these lists were. He says, in substance, that he prepared a manuscript list of the landed proprietors under the ordinance of the council; that he took the names from the assessment roll of 1851, which was the last made at the time of the election, the assessment roll of 1852 being not then completed; that from the manuscript list so made by him, the city printer made printed copies, which the Treasurer sent to the commissioners of election at each poll. The original manuscript list, which witness preserved and which was produced on the trial, was not certified. Does not remember whether the printed copies were certified or not.

It is very clear that this witness does not prove that the ljsts furnished the commissioners, were certified to be correct.

As to Mr. Grossman, the Mayor, who was also examined on this point, although he commenced by saying that properly certified lists of the voters were furnished to each poll, yet on his attention being more especially directed to the subject, ho declared his complete ignorance, personally, of the fact of the lists being certified, or if so, by whom.

The fact is, that the Mayor had nothing- to do with the preparation of those lists. By the ordinance of the council referred to by Mr. Garland, and which was an ordinance made under the statute “ to prescribe the manner of holding the election,” it was made the duty of the City Treasurer “to prepare an aL pbabetical list of all persons paying taxes on landed estate in the city of New Orleans,” and “ to furnish a copy of said list for each precinct at which the votes are ordered to be taken, to the commissioners or inspectors .of election.’’

The ordinance says nothing about the certifying of the lists. Accordingly, the Treasurer deposed, and the production of the list in the District Court showed, that ho did not certify the original, And it is fair to presume, that the lists, furnished to the commissioners of election, whj.ch were printed copies of that original, were likewise uncertified. The evidence satisfies mo that such was the fact; and the course of argument by the counsel for plaintiff appears to admit it. Eor the learned counsel have put the case to us upon the ground, that the clause of the statute requiring a properly certified list of the authorized voters to be furnished to the commissioners of election, is not an imperative clause, but simply directory; the effect of a disregard of which, was not to invalidate the election. In other words, that it was optional with the city corporation to obey it or not.

A leading ease upon this point is Rex v. Losedale and others, 1st Burrow’s Reports, page 445, In that case, Lord Mansfield said: “ There is a known distinction between circumstances which are of the essence of a thing required to bo done by an Act of Parliament, and clauses merely directory.” The question at issue was, the legality of the appointment of five .overseers of the poor in a parish, under the statute of 43d Elizabeth, which restricts the number to four. And the Court of King’s Bench held, for reasons stated at length, that the number of overseers was not an immaterial thing, and therefore that the appointment was invalid; .although the time and place of making the appointment being immaterial, the appointment would not have been avoided for want of complying with the statute in those respects,

Again, in the Bank of the United States v. Dandridge, 12th Wheaton, 81, Judge Story held the following language“ That some of the provisions of the charter and by-laws (of the Bank of th.e United States) may well be .deemed directory to the officers, and not conditions precedent, without which their acts would be utterly void, will scarcely bo disputed. What are to be deemed such, provisions, must depend upon the sound construction of the nature and object of each regulation, and of public convenience, and apparent legislative intention

Accordingly, the books furnish us with various instances of courts refusing to avoid acts which have been done under a statute, on account of the omission of formalities prescribed by the statute. Thus, in the case of the Bank of the Northern Liber ies v. Cresson, 12th Sergeant & Rawle, 306, the Supreme Court of Pennsylvania held, that a bond given by a surety of the first bookkeeper of a bank, was binding, although no bond had been given by the bookkeeper himself, as required by the by-law of the bank, made under authority given by the charter. It is to be observed, however, that the decision of that case was put expressly on the ground, that “the bank had an inherent right to require security from their officers, by the very nature of the institution, without any special authority either from the statute or by-laws. If both had been silent, they still had this authority.”

Again, in the case already cited, of the Bank of the United States v. Dandridge, the Supremo Court of the United States intimated, that, had the charter of the bank in terms required the approval of the securities of a cashier, by the board of directors, to be in writing, (which it did not,) it would have deserved consideration, whether such a provision ought to be deemed a condition precedent, without which the act was void, or only directory.”

And in two cases reported in 19th ‘Wendell, pages 135 and 635, the Supreme Court of New York refused to annul elections of directors of corporations, for the want of an oath taken by the inspectors of election, although the charters required an oath ; grounding its decision principally upon a presumed acquiescence of the parties plaintiff, from their having made no objection at the time of the election.

All these decisions are reducable in principle to the rule laid down by Lord Mansfield; that the statute is to be considered as imperative in every particular which is essential to the thing required to be done, and merely directory as to those which are immaterial.

Tested by this rule, the injunction to furnish a properly certified list of the authorized voters to the commissioners of election, in the statute under consideration, is imperative and not merely directory.

The object of the election was, to take the sense of — not the whole mass of legal voters — but of a particular class of voters, namely, those holding property which the ordinance proposed to tax — landed property. This was clearly not an ordinary election, nor was the test of qualification of those who presented themselves at the ballot-box, the 10th Article of the Constitution alone. Something else was necessary, beside the voter being a free white male citizen, above the age of twenty-one years, who had resided twelve months in the State, and six months in the parish. That something, was the title to landed estate in the the limits of the corporation ; and the test of that special qualification was not left to the discretion of the commissioners of election by the statute. It was to be found in a document, which it was made the imperative duty of the corporation to furnish to the commissioners, to wit, a properly certified list of the authorized voters, or as more clearly expressed in the French text of the law, “une liste dúment certifiée de toutes les personnes qui ont droit de voter audit scrutin.” It is plain, from the law, that this list was to guide the commissioners of election in receiving the votes. And the reason of the enactment is very apparent. Had not the act provided some such guide, the commissioners would have been obliged to require of every voter the production of his titles to landed property, the examination of which would have caused endless delays ; for it is needless to say, that our law admits no other proof of title to land, than written evidence. The tendering of an oath, therefore, which some of the witnesses tell us was the course adopted to some extent, at this election, was not only contrary to this particular statute, which was the law that controlled this election, but was a violation of the general law of evidence in Louisiana. The statute of 1st June, 1846, concerning elections, section 12, which authorizes and requires inspectors of election, at ordinary elections, to tender a certain oath to a person whose vote is challenged, is, upon its face, not applicable to an election under the statute of 1852. The properly certified list, that is to say, under the ordinance of the council, which made it the duty of the City Treasurer to prepare the list- — a list certified correct by that officer, of all persons having the right to vote at said election — was indispensible for carrying out, legally and fairly, the object which the Legislature had in view in this election. Whether we adopt the rule of Lord Mansfield, or the less terse and intelligible rule of Judge Story, we are brought to the same conclusion, that the legislative injunction to furnish the certified lists of voters who were landed proprietors, was imperative, and the furnishing of such list, a condition precedent to the holding of a valid election under this statute, in default of which the ordinance subscribing to stock remained without effect.

Having thus expressed our opinion upon the provisions of the 3d section of the Act of the 12th of March, 1852, in relation to the imperative or merely directory effect of those provisions, as between the State and the city, it remains to consider their effect as between the city and the proprietors of landed property in New Orleans. It strikes me that the argument of plaintiffs has left out of view entirely, the very peculiar relations of those parties to each other under the Act of March, 1852, and the ordinances of May, 1852, which are nothing more than the application or consummation of that act.

The Act of 1852, authorizes any police jury or municipal corporation of this State, to subscribe to the stock of corporations undertaking works of internal improvement under the laws of this State. The second section provides that the subscription so made, shall be paid by the levy of a tax on the landed es-state situated in the parish or municipal corporation.

By the fourth section, it is declared that the stock thus subscribed for, shall not belong to, nor shall it even be administered by the police jury or municipal corporation subscribing; but shall belong to the tax payers, who shall have paid therefor. The tax receipt of each tax payer shall entitle him to a certificate of stock, for an amount equal to the amount of his tax paid, at the hands of the coi'poration to which subscription shall have been made, which certificates are to be transferable by delivery.

Is it not clear that under this law, the relative position of the city of New Orleans and its taxable inhabitants, the landed proprietors of that city, in relation to this matter, was that of agent and principal ? The act invested the city with a mandate to subscribe for stock on account of the owners of land within its limits. The latter were bound by the terms of the law, to fulfil the obligation contracted by the former, as their mandatary. That obligation was the payment of money for stock subscribed. The amount of this pecuniary obligation, under the ordinances of May, 1852, was two per cent, of the assessed value of the property of the principal, in favor of the Opelousas Railroad, and three per cent, in favor of the Jackson Railroad Company. The city was without interest in the stock subscribed, and under no obligation to make good the subscription. The railroad companies could never have held the city responsible in its corporate capacity, for they had distinct notice of the terms of subscription, and had personally accepted the same.

It is a general rule of the contract of mandate, that the principal is only bound to execute the engagements of his agent, conformably to the power which has been conferred. C. 0. 2290.

A mandatary, under a special power, must confine himself strictly within the limits assigned to him, and those dealing with him must, at their peril, see that he does not exceed his authority, but they need not, in search of his powers and their limitations, look beyond the instrument of mandate. Brown v. Frantum, 6th La. Rep. 47.

In the present case, the instrument of mandate is the statute of 12th of March, 1852. The agent, the city, was bound to conform to the terms of that instrument, and the parties with whom the agent dealt, the railroad companies, wore at their peril to see that he conformed to the requisitions of the same. In this point of view, the very argument of the plaintiff, that the clause requiring a certified list of all authorized voters was director}'-, militates in favor of the defendant. It admits at least, that the clause was not entirely without meaning. If it had not the effect of utterly abrogating the ordinance of subscription, at least it was a direction or injunction to the corporation, in regard to the formalities to be observed for the purpose of binding the party intended to bo bound, the landed proprietor. If not a condition precedent, the omission of ■which imported the nullity of the ordinances by the terms of the statute itself, it was at least a condition subsequent, essential to the validity of the election held under the ordinances.

Whether viewed as a clause imperative, or a clause directory, a condition precedent, or a condition subsequent, in the construction of this statute, I am of opinion that the omission of the city corporation to furnish a properly certified list of the authorized voters to the commissioners of election, is equally fatal to the right of plaintiff to recover in this action.

Few statutes, perhaps, have been framed, so fruitful in points of construction, as this statute of 12th March, 1852. It has even been doubted, whether the impost upon landed property under it, be a tax at all — whether its proper designation be not rather an expropriation of property in favor of corporations chartered for the internal improvement of the State; or a forced subscription to stock. If we apply the definition of a tax recognized as correct by the Supremo Court, in 11th Martin, 324, State v. Orleans Navigation Company, and in 1st Annual, 115, Second Municipality v. Morgan, it is a misnomer to call the contribution of the landowners to the stock of the railroad companies, under this statute, a tax, That definition is as follows: “ a burthen, charge, or imposition set on persons or property for public uses; exactions to fill the public coffers for the payment of the debt, and the promotion of the general welfare of the country,” Accordingly, we have seen that the Legislature did not allow such a contribution to be levied by the sole action of the corporation of New Orleans, through its common council and Mayor; but required an additional sanction, the vote of those who were to pay the tax or contribution. In the contemplation of the Legislature, it was evidently an expropriation ; and their object was to make it a voluntary one. That its effect is to expropriate property is, I think, undeniable. For it makes no difference in principal, that the expropriation is fractional — five per cent., or one-twentieth, instead of the whole. It is true, that the act, while it takes away with one hand, gives with the other. It presents the citizen with railroad stock in exchange for his land. But perhaps, individually, he was not desirous of such an exchange, although a majority of the land owners in the city were. As to this defendant, it is certain that she never gave her consent, being a woman and disqualified to vote.

This case appears analogous to that, of which there are many examples in our reports, of the contribution .required from riparian proprietors for making levees in front of their property, with regard to which it has been frequently decided that the proprietors are not liable, unless all the formalities of the law have been strictly fulfilled. Hiriart v. Morgan, 5 L. R. 45. Winchester v. Cain, 1 R. R. 421. Two cases in 9th Ann. decided by Campbell, J.

The same thing has been decided with regard to forced alienations of land for taxes. In Morris v. Crocker, 4 L. R. 150, the Supreme Court said : “In such sales, according to the principles of jurisprudence established by several decisions of the Supreme Court of the United States, and which prevail generally in the several States of the Union, the purchasers are bound in order to give force and validity to their titles, to show that all the formalities required by law in alienations of this kind, have been fully and faithfully complied with.”

If it be competent and proper, after the alienation has been consummated by a sale for taxes, to inquire into the manner in which the formalities required by law for bringing about that sale have been fulfilled, it is equally proper to put a stop to pursuits for the enforcement of taxes, if it appear that the legal requirements for the imposition of the tax have been omitted.

Lastly, this action must abate, because the ordinances of May 13th and 17th, 1852, imposing the tax, have been repealed. This appeal has taken place since the judgment rendered in the court below, and since the appeal in this case; but we are not the less bound to take notice of it. In Cooper v. Hodge, 17 L. R. 478, Martin, J., delivering- the opinion of the court, said: “ The Judge a quo was of opinion that on the repeal of a law, every proceeding begun but not perfected under it, becomes absolutely void. In this opinion wo concur. We have held, that if judgment be correctly given under a law which is repealed ywiáráy the appeal, this court is bound to reverse it.” See also 12 L R. 552. 13 L. R. 497.

The two Acts of Assembly, approved 15th of March, 1854, Nos. 108 and 109 of the Session Acts, authorized the city of New Orleans to subscribe to the stock of the Opelousas and Jackson Railroad Companies, for identically the same amount as the subscription contained in the city ordinances of the 13th and 17th of May, 1852, that is to say, one million and a half of dollars to the Opelousas, and two millions to the Jackson. Those subscriptions wore intended to be substituted in the place of the previous subscriptions, as is proved by the injunction upon the city council to repeal the ordinances of May, 1852, by the same ordinances by which it shall make the new subscription. It is also ordered by the Legislature, that the railroad companies shall accept the new ordinances of subscription, consequently renouncing the former subscription. The now subscription is to be paid for by city bonds bearing interest; and the stock belongs to the city, not as before to the individual tax payers.

It is a matter of public notoriety, that the city ordinances of May, 1852, have been repealed, and that new ordinances creating a new subscription of stock, and repealing the former subscription have been accepted by the railroad companies. Of the city ordinances, I think it proper that we shall take judicial cognizance, without proof.

If it should be argued that the injunction to repeal the city ordinances of the 13th and 11th of May, 1852, is qualified in the Acts of March 15th, 1854, by proviso, that “the repeal of said ordinances shall not be so construed as to relieve the city from the obligation to collect and pay over to the railroad companies that portion of the railroad tax imposed under said ordinances, for the year 1853, which has not yet been collected and paid over to said company.” There are two answers, the first of which, it is hoped, will be considered sufficient.

First, there can be no obligation to collect and pay over a debt which the. creditor has extinguished by voluntary remission. And what else than a voluntary remission of the obligation of the landed proprietors to pay the. subscription of 1852, was it, when the railroad companies, the obligees, accepted the repeal of the ordinances under which that obligation had its existence ?

The second answer is, that it would be a spoliation disgraceful to the State of Louisiana, and which a court of justice could never sanction, that the land owners of the city of New Orleans, should be made to pay this tax, after the ordinance under which it was imposed, and under which alone they had a right to receive stock in exchange for their payment, was repealed. For it is vain to suppose that they would have a right to the stock under the Act of the 12th of March, 1852. That act is general in its terms, not sanctioning or guaranteeing any subscription in particular. To give any force or effect to the insidious proviso which deforms the fifth paragraph of the second section of the Acts of the 15th of March, 1854, would be to sanction a law that impairs and destroys the obligation of a contract, because it frees one contracting party while it keeps the other bound. The law of 1852, and the city ordinances of that year, accepted as they were by the railroad companies, constituted the contract between the railroad companies and the defendant; a contract in which she should be the more protected, because it was one forced upon her. The ad-advantages, such as they were, which this compulsory contract afforded her, are withdrawn ; the contract is arbitrarily cancelled to that extent, by the State Legislature which had already forced it upon hex’. Yet what was onerous to her, her obligation to pay, is left in full force. The unconstitutionality of the proviso is self evident.

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