text:
    No. 10,120.
    Heirs of Rebecca Dohan vs. Robert Murdock.
    TIi© recitals contained in a deed that is offered in. evidence in proof of title, cannot be considered as evidence of tbe domicile of the parties when it is a necessary element of title. In this case their domicile should he affirmatively proved.
    APPEAL from the Ninth District Court, Parish of Tensas. Young, J.

      Wade M. Young for Plaintiffs and Appellees.

      Steele Garrett <& Dagg for Defendant and Appellant:
    1. In a petitory action the claimant must allege and prove every material fact necessary to establish good and perfect title in himself before he can recover. C. P. 44.
    3. The whole burden of proof is upon the plaintiff in a petitory action. He must make his title certain; to make it possible, or even probable, will not suffice. C. P.44; 22 Ann. 378; 19 Ann. 12J ; 18 Ann. 29, 507.
    3. The iule that evidence received without objection will be given effect even where the issue is not made by tbe pleadings will not be extended so as to permit the record of a deed which is offered and received for the purpose of showing the conveyance of title— to have the effect of proving residence or domicile of the parties, or where there is no such averment in the pleading». Jone» vs. Real, 1 Ann. 200.

      4. Words of description used in notarial acts or judicial proceedings not necessary to the purposes of contract, or to the jurisdiction, do not make proof of domicile, and this rule has greater force where the deed or • contract is by private act. and not signed by the party whose domicile is sought to be shown by it. New Orleans vs. Shepard, 10 Ann. 268.
    5. A possessor in good faith is one who holds title translative of property, and has just cause to believe himself to be the master of the thing which he possessed. O. C. 3451.
    6. The possessor in good faith cannot be required to account for the revenues received before any claim for restitution is made, and he is entitled to be reimbursed the expenses he has incurred upon the property before he can be evicted from it. C. C. 4453.
   The opinion of the Court was delivered by

Watkins, J.

This is a petitory action for tiie recovery of an undivided one-half interest in the property known as the Ashland plantation, situated in the parish of Tensas, this State. It is designated in the petition as “ the same property (that was) sold by William Harris to Daniel J. Dohan and to Mrs. Rebecca Dohan on the 21st of February, 1850. ’

Plaintiffs claim the property by inheritance from their deceased mother, Mrs. Rebecca Dohan, and it is alleged in their petition that one of them is a resident of the State of Texas and the others of the State of Mississippi.

They represent that the defendant has taken possession of their said one-half interest without authority from them,” and has used and cultivated same, and that the annual revenues thereof aggregate $5000 per cmmvm.

The answer of the defendant is, in substance, that he is in possession of the whole property, but disclaims title .to more than one undivided half interest thereof. That he acquired said interest by purchase from Daniel J. Dohan by deed of record and date July 15, 1878, and possessed the remaining one-half as the tenant at will of Michael J. Dohan, residing in Philadelphia, Pennsylvania.”

He represents that he purchased said property in good faith, for full value, and upon the written opinion of a reputable attorney at law that the title was perfect.

There is in evidence a deed from William Harris to Dauiel J. Dohan and his wife, Rebecca Dohan, purporting to convey the whole property. This is the title of the common author of plaintiffs’ ancestor and of the defendant, and is affirmed by both.

There is, also, in evidence a deed from Daniel J. Dohan to the defendant, of an undivided one-half interest therein.

Manifestly, the plaintiffs rest their claim of ownership upon the title of H arris.

But we are left in the dark as to the precise character of their pretensions. Whether they claim that the title was joint and several as to the two vendees, “ Daniel J. Dohan and his wife, Rebecca Dohan,” or that it was community property, and they inherited their mother’s undivided one-half interest, is not quite clear.

There is neither averment or proof of the residence of Daniel J. Dohan and wife at the date of their purchase from Harris on the 21st of February, 1850, nor at the date of Rebecca Dohan’s death. There is a recital in the deed that they resided in the State of Mississippi.

Such recitals contained in a deed that is offered in evidence by plaintiffs in proof of title, cannot be considered as proof of domicile. 10 Ann. 268, City vs. Sheppard; 4 Ann. 555, Hill vs. Spaugenburg; 5 Ann. 348, Davis vs. Benion; 1 Ann. 200, Jones vs. Reed.

If, in point of fact, Daniel J. Dohan and Mrs. Rebecca Dohan were citizens of the State of Mississippi at the date of their purchase from Harris, in 1850, and their title thereby taken out of the operation and effect of our community laws, plaintiffs should have proved that fact clearly and affirmatively.

We think their allegations are sufficiently broad to admit of the introduction of the -needed evidence. They are to the effect that they are the owners by inheritance fiom their mother, Mrs. Rebecca Dohan of an undivided one-half interest in the Ashland plantation, purchased from Harris by Daniel J. Dohan and his wife, Rebecca Dohan, in 1850.

Under the circumstances and for the purposes of justice, we think the ease should be remanded for a new trial in pursuance of the views herein expressed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled and set aside; and it is further ordered, adjudged and decreed that the cause be remanded to the court below for a new trial in pursuance of the views herein expressed, and that the cost of appeal be taxed against the plaintiffs and appellees.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 10,136.
    The State ex rel. G. A. Singer vs. J. E. McGuire, Sheriff, et al.
    A party wlio lias acquiesced in a judgment of the Supreme Court, which, has acquired the force of res judicata, dismissing for want of jurisdiction an appeal in a case in which he was a party and virtually deciding that the matter in dispute comes within the exclusive jurisdiction of the Court of Appeals, cannot be permitted to que tion the exercise of that jurisdiction by the latter court, the less so, where he has formally submitted himself to it.
    A prohibition in such a case does not lie.

      ^ PPLICATION for Prohibition.

      O. J. & J. 8. Boatner for the Relator.

      J. T. Ludeling for the Respondents.
   The opinion of the Court was delivered by

Bermudez, C. J.

The relator complains that the judges of the Second Circuit Court of Appeals have entertained jurisdiction over a cause in which the State National Bank claimed of him the sum of $2011.17, and that, said judges have rendered against him a judgment for $736, on which execution was issued in the district court and is in the hands of the sheriff.

He charges want of jurisdiction ratione materice, and seeks a prohibition to arrest further proceedings, and other relief.

The judges and the judgment creditor return, as their defense, that in the suit of the Bank vs. L. D. Allen and garnishees, in whieh the judgment rendered was brought up for review by the hank to this Court, the appeal was dismissed for want of jurisdiction, and the latter was one of the garnishees, appellees in that case. State National Bank vs. Allen, 39 Ann. 806.

The judgment of dismissal is therefore invoked as res judicata and as recognizing jurisdiction in the Circuit Court of Appeals. The defense is well founded.

There is nothing to show that the relator objected to the jurisdiction of the latter court, when the case was before it for hearing and determination. He must therefore be considered as having acquiesced in the judgment of this Court dismissing the appeal, which constitutes res judicata and is conclusive.

Relator is estopped from questioning its correctness and validity.

Interest reipublicce ut sit finis Utieum.

It is, therefore, ordered and decreed that the restraining order herein made be rescinded, and that the application for a prohibition be refused, with costs.


author: Watkins, J.

text:
    No. 10,129.
    Alfred Jardet vs. Board of Liquidation.
    Under the terms of Section 1 of 11 of 1875, the Board of Liquidation is prohibited from issuing bonds of the i'tate in lieu of its outstanding obligations, bearing date antecedent to its passage, until the legality and validity of same had been first determined and established by finál decree of this Court.
    Necessarily, the duty of the plaintiff was to prosecute an appeal to this Conrt, in order to obtain such final decree, notwithstanding there was judgment in his favor in the lower court.

      APPEAL from the Seventeenth District Court, parish of East Baton Rouge. Burgess, J.

      Bead di Qoodále and W. 8. Benedict, for Plaintiff and Appellant.

      M. J. Cunningham, Attorney General, for Defendant and Appellee.
   The opinion of the Court was delivered by

Watkins, J.

Judgment was rendered in the court below on default in plaintiff’s favor, declaring the warrants sued on to he legal and valid obligations of the State, and directing and requiring the defendant board to fund the same, and issue bonds of the State in exchange therefor.

The plaintiff has brought up this appeal in conformity with the requirements of section 1 of act .11 of 1875, which prohibits the Board of Liquidation from issuing State bonds in lieu of outstanding obligations of the State that were issued previous to its passage, the legality or validity of which may have been, or may hereafter he questioned, until said bonds, or warrants, shall first, by final decree of the Supreme Court of the State of Louisiana, have been declared legal and valid obligations of the State, and that same were issued in strict conformity to law, and not in violation of the Constitution of the State, or of the United States, and for a valid consideration.” This he was bound to do. 33 Ann. 124, State ex rel. Meyers vs. Board of Liquidation; 37 Ann. 176, Charles vs. Board of Liquidation.

There is nothing apparent from an inspection of the warrants to impeach their validity or legality ; and neither their validity or legality have been questioned by the Governor or Attorney General. It is, therefore, fair to presume that they are unquestionably valid.

Judgment affirmed.


author: Fenner, J.

text:
    No. 10,110.
    A. LeBœuf vs. Marie J. Webre et als.
    A. creditor of a succession has a right to require the administration thereof to be conducted according to law, and to that end, to require that all its property shall be included in the inventory, and to prevent improperand illegal sales thereof. He is not bound, in order to maintain such action, to allege or prove the insolvency of the succession. Its solvency or insolvency depends on the result- of the administration, on the value of its property and the amount of debts which may be presented against it; and the creditor is not bound and has not the means to solve this question in advance.
    Our jurisdiction in such a case is governed by the amount of the “ fund to be^diatribufced. ”

      APPEAL from the Twenty-second District Court, Parish of St. James. Rost, J.

      Sims & Roché, for Plaintiff and Appellant.

      Robert (x. Rugue, for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

We adopt defendant’s own statement of the case:

“ The plaintiff alleges, in substance, that he is a creditor of the estate of B. S. Webre for $1,197.66; that the administratrix, who is a daughter of the deceased, has caused an undivided half of certain real estate to be advertised for sale to pay debts, although the whole belongs to the succession, and that she has purposely excluded one-half thereof from the inventory and from the sale, in order to shield it from the claims of his creditors. That the entire property is burdened with a Citizens’ Bank stock mortgage, which is an impediment to a valid sale of one-half of the property ; that the creditors are entitled to a new inventory and to a sale of the whole, -and that the plaintiff will suffer irreparable injury by the contemplated sale.
“His prayer is for an injunction to arrest it, and for ajudgment recognizing the succession as owner of the entire plantation, directing new inventory and a sale of the whole to be made, and rescinding the order of sale already rendered.
“The defendant, after excepting to the petition as disclosing no cause of action and no ground for an injunction, answered by emphatically denying the truth of plaintiff’s allegations.
“The exception was sustained, the injunction dissolved, and the suit dismissed, with fifty dollars special damages for attorney’s fees, and the plaintiff has appealed.”

The ground upon whioh the judge acted was the absence of any allegation that the succession was insolvent, or that the sale as advertised would not realize enough to pay him and all other creditors.

We do not think that such allegations were essential. The object of administration of a succession is to liquidate it by ascertaining the amount of its property and of its debts and by appropriating the former to the payment ot the latter, and distributing any resulting residue among those entitled to it.

The fundamental basis of such administration is a correct ana complete inventory of the property, which is made by law the measure of the administrator’s bond, and exhibits the fund to which the creditois must look for the satisfaction of their claims.

The solvency or insolvency of the succession depends upon the result of the administration, upon the price which the property brings when sold, and upon the number and amount of the debts which may be presented against it.

Many successions, supposed to be solvent, prove to be the reverse.

A creditor is not bonnd to solve this question in advance, and has not the means to do so. But be is entitled to require that the administration be conducted according to law, that all the property belonging to it shall be included therein, and that it shall not be sacrificed by improper and illegal sales.

Obviously, if the whole of this real estate belongs to the succession, as alleged, tlie sale of an undivided half of it would be both improper and illegal. Perhaps, under C. C. 1135, such a sale would not be warranted, even if the succession only owned the undivided half; but certainly if it owns the whole it could not sell an undivided half in the manner proposed.

We think the petition sets forth a sufficient cause of action, both for the completion of the inventory, and for the injunction.

• The case' is clearly one affecting the “fund tobe distributed,” which greatly exceeds $2000, and the suggestion as to our lack of jurisdiction has no force.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, that tbs exception of no cause of action be overruled, and that the case be remanded to be proceeded with according to law, defendant to pay costs of said exception in the lower court and of this appeal.


author: Poché, J. Fennér, J.

text:
    No. 10,045.
    The Board of Administrators of the Charity Hospital of New Orleans vs. The New Orleans Gas Light Company.
    The legal effect of the consolidation of two corporations under the provisions of Act Ho. 157 of 1874 is a perfect amalgamation which terminates the existence of the consolidating companies as separate autonomies and operates the creation of a new one, thus concentrating in one corporation, the members, the property and the capital stock of both.
    The consolidated corporation not only assumes duties and obligations similar to those of the former corporations, but it will be held on the very identical liabilities and obligations incurred by either of the former companies.
    Hence, under the amalgamation effected between the New Orleans Gas Light Company and the Crescent City G-as Light Company, the obligation imposed by the Legislature on the former company to furnish gas, free of charge, to the Charity Hospital, adheres to the new or consolidated company, without reference to the term or duration of the charter of said company as previously composed.

      APPEAL from the Civil District Court for the Parish, of Orleans. Houston7 J.

      Farrar <& KruUsehnitt and S. 8. Carlisle for Plaintiff and Appellant:
    1. The obligation to furnish free gas to the Charity Hospital was, by the Act of 1845, made one of the conditions of tbe charter of the New Orleans Gas Light Company.
    2. The consolidation of that company with the Crescent City Gas Light Company was not a merger or union, but a “perfect amalgamation.” Fee vs. Gas Co., 35 Ann. 416; H. O. Gas Co. vs. La. Light Co., 115 IT. S. 697.
    3. The legal effect of this perfect amalgamation was to “terminate the existence of the original corporations, to create a new corporation, to transmute the members of the former into the members of the latter, and to operate a transfer of the property, rights and liabilities of each old company to the new one”. Fee vs. Gas Co., supra.

    4. The charter of the New Orleans Gas Light Company, therefore, never did expire by limitation. It expired before the arrival of the term, because it took the benefit of a legislative act, the effect of which was a termination of its charter upon the condition that the new being, to the formation of whose existence it contributed, should be bound by all of the conditions and obligations imposed in its charter.
    5. The litigation between the New Orleans Gas Light Company and the Crescent City Gas Light Company as to the constitutionality of Act 66 of 1860 is not binding on the Chaiity Hospital, who was no party thereto, though having an interest exceeding $60,000 in the result.
    6. The consolidation between the parties litigant prior to the final decree, makes the judgment in that case a mere consent judgment, binding only on the parties.
    7. Being no party to that litigation, the Charity Hospital is entitled to discuss now the constitutionality of Act Ho. 66 of 1860, if- it has any bearing on its rights.
    8. The defendant is estopped from settingup that said act is unconstitutional. It is bound by all the estoppels that either of its constituent members were bound by; and the New Orleans Gas Light Company, having accepted the provisions of said act and. complied with its terms, cannot be heard to say that the same is unconstitutional.
    9. The object of thatactis expressed in its title, and is declared to be “to extend the area of gas lighting in the city of New Orleans, and to reduce the price now paid by consumers.”
    10. Under the then existing contract relations between the State and the New Orleans Gas Light Company this expressed object could not be accomplished without the consent of that company, and without making to it some compensation for the invasion of its chartered privileges contemplated by the object of the act.
    11. The extension of the charter of that company for twenty years, in consideration ot its consent to perform the onerous duties necessary to enable it to realize tbe object of the Legislature, was the natural, reasonable, appropriate and efficient means adopted by the Legislature for the accomplishment of that object.
    12. It is not necessary that the title to an act should specify or enumerate the means adopted by the Legislature to accomplish the object stated. Hammond vs. Lesseps, 31 Ann. 330; American Printing House vs. Dupuy, 37 Ann. 191
    13. The reasoning of the Court in the case of Orescent City Gas Light Company Vs. New Orleans Gas Light Company, 27 Ann. 144, begs the question and does not discuss the real issue. It is, therefore, without weight in the determination of the rights of the plaintiff.

      JBraughn, JBuelc, Hinlcelspiel <& Hart for Defendant and Appellee.
   The opinion of the Court was delivered by

Poché, J.

The issue involved in this case is the alleged obligation of the defendant company to furnish gas, free of expense, to the Charity Hospital.

Plaintiffs rest their demand on the provisions of Act 100 of 1845, which amended the charter of the New Orleans Gas Light Company, as then composed, and by which the company was required to furnish the Hospital all the gas and fixtures necessary for lighting the same free of charge.” Hence, they aver that the legislative requirement followed the company in the act of consolidation and amalgamation between it and the Crescent City Gas Light Company on the 29th of March, 1875, effected under the authority of Act 157 of 1874, authorizing the consolidation of corporations in this State, by means of which the defendant company, as at present organized], came into legal existence.

Its resistance is predicated on the fact that, under the effect of the legislation of 1845, the charter of the previous New Orleans Gas Light Company expired on the 1st of April, 1875, and that with it rvas extinguished the obligation of the present company to furnish gas, free of charge, to the Charity Hospital.

Plaintiffs prosecute this appeal from an adverse judgment.

It appears that, after the act of consolidation, until January, 1886, the consolidated company continued the free supply of gas to the hospital, but on the 19th of January, of that year, it was resolved by the Board of Directors that in the future, the Charity Hospital would be charged regular price for the gas consumed by it; hence, this suit, which was begun by an injunction for the purpose of restraining the defendant from cutting off the free gas supply.

The controversy hinges upon a proper construction of the legal effect of the act of consolidation between the two previously existing companies.

As bearing on the issues to be discussed must be noted the incorporation of the Crescent City Gas Light Company, by an act of the Legislature. No. 97 of 1870, as amended by Act 106 of 1873, by means of which legislation the company thereby created was granted the sole and exclusive privilege of making and vending gas lights in the city of New Orleans for a term of fifty years, after the date of the expiration of the charter of the New Orleans Gas Light Company, as then existing, and which, under its charter, was in the exercise of the exclusive privilege to supply gas to the people and city of New Orleans.

But, in the meantime, the Legislature, by Act No. 66 of 1860, had extended the charter of the New Orleans Gas Light Company to the 1st of April, 1805; and its provisions clashed with the legislation of 1870 and 1873 in favor of the Crescent City Gas Light Company. Hence, arose litigation between the two companies, in which a decision was rendered by this Court declaring that the Act No. 66 of I860was unconstitutional.

While a writ of error, taken from that decision, was pending in the-Supreme Court of the United States, the two companies entered into a compromise, resulting in the dismissal of the writ, and culminating in the consolidation of the 29th of March, 1875, hereinabove referred to.

The Act No. 157 of 1874, under which the consolidation was effected, reads as follows:

"Any two business and manufacturing corporations or companies,, now existing under general or special law, whose business and objects-are in general of the same nature, may amalgamate, unite and consolidate said corporations or companies, and form one consolidated company, holding and enjoying all the rights, privileges, powers, franchises and property belonging to each, and under such corporate name as they may adopt or agree upon ; such consolidation shall be made by agreement, in writing, by or under the authority of the board of directors, and witli the assent of the owners of at least three-fifths-of the capital stock of each of said corporations or companies, and a. certificate of the fact of such consolidation with the name of the consolidated company shall be filed and recorded in the office of the-Secretary of State; provided, that no such consolidation shall in any manner affect or impair the right of aDy creditors of either of said companies. In the agreement of consolidation, the number of directors of the consolidated company shall be specified and the capital stock may be in the amount agreed upon by the companies or corporations, and set forth in the articles of consolidation.”

It is not disputed by the defendant company that, as a legal result of the amalgamation, the obligation theretofore resting on the New Orleans Gas Light Company to supply gas, free of charge, to the Charity Hospital adhered to the consolidated company, but the contention is that the obligation was only co-equal with the duration of the charter of the company which was burdened with that duty, and that, therefore, the obligation became extinct on the 1st of April, 1875, at which time the charter of that company is alleged to have expired.

That conclusion is predicated on the proposition that the eonsolidation of tlie two previous companies operated merely a merger of one of tlie corporations into the other, and that the measure of the rights, privileges and franchises or vitality infused in the consolidated company by each of the consolidating corporations was the respective terms of duration of tlie charter of each.

But that argument finds no support either in the facts of the case or in well settled jurisprudence on the question of the effects of an amalgamation of two distinct and co-existing corporations.

In dealing with the question of the legal effects of the consolidation of the identical companies now under discussion the Court said :

The articles of consolidation and the legislative act, by authority of which they were executed, evidently present a case of complete and perfect amalgamation, the effect of which was, under American authorities, to terminate the existence of the original corporations,.to create a new corporation, to transmute the members of the former into members of the latter, and to operate a transfer of the property, rights and liabilities of each old company to the new one.” Fee vs. Gas Company, 35 Ann. 416.

That opinion was sanctioned both by reason and by the nature of the act by which the consolidation had been authorized, as well as by the highest judicial authority in the land.

The princixde had been announced by the Supreme Court of the United States on several occasions, and was in one of its adjudications couched in the following language :

“The effect of the consolidation was a dissolution of the three corporations, and at the same instant the creation of a new corporation, with property, liabilities and stockholders derived from those passing out of existence.” Clearwater vs. Meredith, 1st Wallace, p. 40. These views were repeatedly re-affirmed by that exalted tribunal. Shields vs. Ohio, 95 U. S., p.323; Railway Company vs. Maine, 96 U. S. 510; Railroad Company vs. Georgia, 98 U. S. 362.

It may not be amiss to add that our views on this question in the Fee case, 35 Aun. 416, were quoted with approval, and made the basis of its-reasoning by the Supreme Court of the United States in the case of the Now Orleans Gas Company vs. the Louisiana Light and Heat Producing and Manufacturing Company, 115 U. S. p. 697.

On the same subject, Taylor on the Law of Corporations, Sec. 425, uses the following language: “ On the other hand, the consolidated corporation not only assumes duties and obligations similar to those of the former corporations, but as a general rule, will be held on the very identical liabilities and obligations incurred by either of the former companies.”

The same principle is dealt with by Field on Corporations, Sec. 435, as follows: And the general rule is that the rights of creditors vs. the old companies revive against the new one created by the consolidation, as we have just noticed, and that it becomes substitute for the former j provision is made, perhaps generally made, by statute or by articles of ag:reement, as provided by law, for the payment of the creditors and the satisfaction of the old obligations of the consolidating companies, but even where no such provision is made> but the same consolidation is consummated lawfully, the new company has been held liable to all obligations of the former ones, to the vtry necessity of the case and to prevent the failure of justice.'1'1

Our reading of the act of 1874 authorizing the consolidation of corporations and of the articles of agreement adopted under its authority by the two original companies which were consolidated on the 29th of March, 1875, has satisfied us that both were conceived, drafted and adopted uuder the guidance of the very expositions of the principle to which we have herein referred to, and that, therefore, the same legal effects must flow from the amalgamation out of which the' present defendant sprang into legal existence.

Hence, we cannot adopt the reasoning which would measure the consolidated powers, privileges or obligations of the present new company by reference to the term of duration of the charters of the former companies. And we hold now, as we did in the Fee case (35 Ann. 416), that the charters of the two former companies terminated their existence on the 29th of March, 1875, and that all the powers, rights, liabilities and vitality which both possessed at that very moment were infused and incorporated into the new company which was then born of the amalgamation.

The very legal existence of the defendant company hangs upon the vivifying breath of that legal creation.

It seems quite natural for the defendant, in its present attitude, to continue to draw the breath of life from the new being created out of the union of its parents who ceased to exist at its birth, while it unnaturally,repudiates the essential conditions legally imposed on its creation.

Under the articles of agreement, and as a result or the amalgamation, the consolidate^ company became the owner, and went into possession of all the gasworks, machinery, main-pipes, service-pipes, .meters, lamps and all-other property then in use fur the business of gas manufacture and distribution, including all real estate (with one exception) then belonging to the former New Orleans Gas Light Com-j^any, and it is yet the undisputed owner of all that property. Should any one, for instance some dissatisfied stockholder of that former-company, seek to disturb its possession and enjoyment of that property, he would be triumphantly met by a reference to the act of amalgamation. But, in defendant’s opinion, the same rule does not apply when-it is called on to comply with an obligation which then attached as an essential legal condition of the very existence of one of the authors of its being under the law. To such a demand the answer is that,the obligation was cancelled by the expiration of the charter of the former company.

The law cannot and will not tolerate such a course. Through the same channel which led the defendant company to the right of ownership of all the property and rights of the former New Orleans GasLight Company, it must be led and coerced to the discharge of the obligations which had been imposed on its author by the law which-had created it and which authorized the organization of the new company.

Thdt position cannot be successfully' assailed by a consideration of' the opinion of this Court in the 27th of Annuals which declared the nnconstitutionality of the act of 1860, which purported to extend the charter of the former New Orleans Gas Light Company to 1895. That decision was rendered in February, 1875, and the amalgamation was effected in March following, and the measure was adopted as a compromise of the possible effects of the decision. By that compromise all advantages resulting from that decision in favor of the Crescent City Company, were in fact, if not formally, waived. Under the effect of the writ ot' error taken from this to the Supreme Court of the United States, the decree in the case was not yet final between the parties when they agreed to abate the litigation.

On this poiut the record contains the following statement: “It is further agreed that from the judgment rendered by the Supreme Court of the State in the case of The Crescent City Gas Light Company vs. The New Orleans Gas Light Company, a writ of error was prosecuted by the New Orleans Gas Light Company to the Supreme Court of the United States, and that said writ of error, in consequence of the agreement of consolidation between the two companies, was-dismissed by consent of pai ties.”

It is thus made clear that the judgment was not final when the consolidation was effected, and the conclusion is warranted that quoact the amalgamation, the judgment thus rendered and suspended, must •have been entirely ignored, and cannot now be considered.

That conclusion is removed beyond the possibility of a doubt by many features which were embodied in the articles of agreement or ■amalgamation.

Among others we note the following :

The capita] stock of the consolidated company was fixed at '$10,000,000, of which $3,750,000, or 37,500 shares of $100 each were •considered as paid up. Now, out of those, 25,000 shares were distributed pro rata to the holders of 19,800 shares of $100 each, which represented all the stock previously issued by the N. O. Gas Co. : and the remainder, only. 12,500 shares, was allotted to the holders pro rata of 30,000 shares of $100 each, issued to that date by the Crescent City 'Gas Co.

It was also stipulated that the holders of the 19,800 shares of N. O. Gas Light Co. were to receive a dividend of 6 per cent on July 1, 1875, while no dividend was to be paid to the stockholders of the Crescent City Co. before the 1st of January, 1876.

Again, the whole force -of employees, including the President and Board of Directors of the New Orleans Gas Light Company, were retained to manage and control the new company until the second ’Tuesday of July, 1875.

Would the Crescent City Gas Light Company, holding a charter .good for fifty years, have made such concessions, and granted such and other similar .advantages in a contract of amalgamation, to a •company whose legal existence was, to the knowledge and belief of both of the contracting parties, to have terminated within three days?

The judicial mind cannot be strained to the extent of believing a condition of things so much at variance with all springs of human action.

We therefore conclude and we hold that, the obligation to furnish gas, free of charge, to the Charity Hospital adheres to the consolidated company.

The views thus reached leave but one question open to discussion, and that is to determine the length of time during which the obligation will continue.

The considerations which led us to the conclusion that the duty in question adhered to the now company after the 1st of April, 1875, even under defendant’s contention to the contrary, logically lead to the conclusion that it will existas long as the consolidated corporation will continue to operate under the authority of the amalgamation and of the law which sanctioned it.

Its effect, as we said in Fee’s case, was to terminate the separate existence of the former corporations, and “ to transmute the members of the former into members of the latter, and to operate a transfer of the property, rights and liabilities of each old company to the new one.’'

Nothing suggests a difference between the results of a perfect amalgamation in law, and those produced by an amalgamation .in physical science.

As is the case with the latter, in an amalgamation in law, all the parts of the component matters or things to be subjected to amalgamation, must enter in the formation of the new being or matter to be thus produced. ■ And the amalgamation, in order to be and remain complete as intended, must continue to combine all the parts or elements from which the new being had been formed.

The subsequent withdrawal from the amalgamation of any of its com- ■ ponent parts would destroy, or at least alter its autonomy.

Thus, in the instant case, the property, rights and liabilities of the former Now Orleans Gas Light Company, must continue as component-parts of the amalgamated company, or otherwise the latter’s autonomy would be changed into a new or different corporation. After the 1st of April, 1895, the property and franchises of the old N. O. Gas Light Company will remain in the consolidated company just as they existed and were transferred on the day of the amalgamation. As a component part of the new corporation the old company is estopped from averring a limit to a transfer, which was not stipulated in the contract and its original stockholders are forever debarred from setting up any claim in their original capacity to any of the property, or rights which were thus vested in.the new company.

Treating of the legal effect of a similar amalgamation, the Supreme Court of the United States used the following language, which is quite in point on the present discussion :

“Looking thus at the legislative intent appearing in the consolidation act, we are constrained to the conclusion that a new corporation was created by the consolidation effected thereunder in the place and lieu of the two companies previously existing, and that whatever franchises, immunities or privileges it possesses it holds them solely by virtue of the grant that act made. That generally the effect of consolidation, as distinguished from a union by merger of one company into another, is to work a dissolution of the companies consolidating, and to create a new corporation out of the elements of the former, is asserted in many cases, and it seems to be a necessary result.” 98 U. S., p. 363, Railroad Co. vs. Georgia.

In our opinion there is no possible escape for defendant from tlie relief claimed by plaintiffs.

The judgment appealed from is therefore reversed, and it is ordered and decreed, that the preliminary writ of injunction issued herein be perpetuated, that the New Orleans Gas Light Company, defendant herein, is obliged to furnish gas, free .of charge, to the Charity Hospital of New Orleans, as long as said company shall continue to operate under its present organization, and that said defendant pay all costs in both courts.

Rehearing refused.

Concurring Opinion in Part.

Fennér, J.

The Act No. 157 of 1874 undoubtedly authorized the-consolidation of the Crescent City and the New Orleans Gas Light Companies; and the effect of that consolidation, as we held in Fee’s case (35 Ann. 413), was, “to terminate the existence of the original corporations, to create a new corporation, to transmute the members of the former into members of the latter, and to operate a transfer of the property, rights and liabilities of each old company to the new one.”

The rights and obligations of each old company passed to the new company just as they stood; the consolidation created no new rights and no new obligations, nor did it enlarge or diminish, restiict or extend, existing rights or obligations.

If the Legislature had granted to one of the old companies any pe7 culiar franchise which had not been granted to the other, obviously the duration of such franchise would he limited by the term for which it had been granted, i. e., by the duration of the charter of the company possessing it. The right held by this company would he the right to exercise the franchise during the term for which it was granted by the Legislature, that is, during the term of its charter, and it could not, by consolidation, confer upon the new company a greater 3’ighfc or one extending over a longer term ; it being home iu mind that the act authorizing this consolidation has no reference to these particular corporations, hut is a general law applicable to all business and manufacturing corporations. Otherwise, any corporation possessing a valuable franchise, limited as to its term by the length of its charter, might prolong it indefinitely by waiting until it was about to expire and then consolidating with some other company having longer life, whose “objects and business were of the same general nature” but which did not possess this particular franchise or right.

The statement of such a proposition is sufficient to refute it.

The same rule must necessarily apply to obligations resting exclusively on legislative imposition, such as the one here involved. The obligation to furnish free light to the Charity Hospital has no basis except in the legislative will and power accepted by the New Orleans Gas-light Company under and according to the terms imposed, which expressly limited the obligation as to time by the words, “during the continuance of che charter of said Gas-light Company.”

Therefore, at the moment of the consolidation, the old New Orleans Gas-light Company was subject to no obligation to furnish free gas to the hospital, except for a term limited by the term of its charter. This obligation and no other was transmitted to the consolidated corporation under the letter and spirit of the law.

While the consolidation terminated the existence of both old corporations, yet this destroyed neither the rights nor obligations of either, which were held by the new company precisely as they were held by each of the old ones.

Hence, the new company received the obligation precisely as the old company held it and would have continued to hold it but for the consolidation, to wit: during the term for which its charter had been granted, and I dissent from the contrary views expressed in the majority opinion.

I concur, however, in the view that this term extended to April 1, 1895, under the effect of Act 66 of 1860. The judgment of this Court declaring that act unconstitutional never became res judicata, by reason of the writ of error from the Supreme Court of the United States, and by reason of the compromise or transaction between the parties resulting in the consolidation which settled the whole controversy between the parties to that suit and withdrew it from further litigation by the dismissal of the writ of error, which dismissal was expressly bottomed on said settlement.

It does not lie in the mouth of the defendant corporation representing, as it does, the old New Orleans Gas-light Company, which accepted and acted under said act and enjoyed the extended privileges granted thereby, to raise anew the question of its constitutionality.

On these grounds I concur in that part of the decree only which dissolves the injunction.


text:
    No. 10,176.
    State ex rel. Isaac W. Patton, Register, vs. W. T. Houston, Judge.
    In order to invoke the exercise of the supervisory jurisdiction of this Court under the writs of certiorari and prohibition, relator must establish one of three things, viz: 1st. That the proceedings are infected with some fatal irregularity; or 2d. That the jurisdiction of the cause did not belong to the court which assumed it. but to a different court; or 3d. That the cause is of a nature jurisdiction of which is denied to any court, because not within the limits of judicial power.
    ‘Constitutional executive officers are not exempt from judicial authority to compel them to perform specific duties imposed upon them by law.
    Officers charged with the conduct of elections and with the ascertainment and promulgation of the results thereof, may be compelled by mandamus proceedings to perform specific ministerial duties imposed on them by law.
    Where the statute requires the registrar to appoint commissioners ten days, and to publish them six days, before the. election, if he has violated his legal duty in the selection of such commissioners, parties interested are not precluded from judicial remedy because lie has so acted. They could not proceed before he had acted, and if denied the right to proceed afterward this would be a complete denial of right. The object of the law in requiring action ft certain time before the election was to afford an opportunity to correct any violation of duty which he might commit.
    The questions as to whether the law imposed the duty alleged, whether the duty was ministerial or discretionary in its chai acter, and whether the defendant liad violated his duty, are mixed questions of law and fact belonging exclusively to the merits of the cause and constituting, indeed, the entire merits thereof, and the court being seized with jurisdiction of the case was necessarily invested with full power to consider and determine them. Mere error in the judgment, even if it exists, could only be corrected by us in the exer - cise of a jurisdiction purely appellate, aud can form no foundation for invoking our supervisory jurisdiction.
    APPLICATION for Certiorari and Prohibition.

      bj. D. White, ,'E. if. MeOaleb and W. H. Rogers for Relator.
   The opinion of the Court was delivered by

Fenner, J.

Relator invokes the exercise of our supervisory jurisdiction, by means of the extraordinary writs of prohibition and certiorari, to declare the nullity of a certain judgment rendered by the respondent judge, and to prohibit him from further proceeding in execution thereof.

The judgment complained of was rendered in a mandamus proceeding brought before the Civil District Court by Henry C. Warmoth and other Republican candidates for offices of the State which are to be filled at an election to be held on April 17th, wherein they allege that by virtue of Sections 13 and 15 of Act No. 58 of 1877, it was made the -duty of the Registrar of Voters for the parish of Orleans to appoint for each voting precinct three commissioners of election, to be assisted by a clerk of election, said commissioners and clerk to be selected from opposing political parties, such appointments to be made ten days before the election and to be published at least six days before the election; that more than ten days before the election representatives-of the Republican party had requested said registrar to comply with his said duty by appointing a commissioner or commissioners selected from the Republican party, and had-furnished him with names of qualified Republicans from which to make such selections; but that the-said registrar had failed to perform the duty imposed upon him by law, and had violated said duty by appointing all the. commissioners at said election from members of the Democratic party. On appropriate averments of the absence of all other adequate remedy, they asked for a writ of mandamus commanding and compelling him to appoint a Commissioner at each precinct selected from the Republican party.

In answer 1o an order to show cause why the peremptory mandamus-should not issue, the registrar filed the following defenses:

1st. An exception to the jurisdiction of the court;

2d. An exception of no cause of action ;

3d. That in the appointment of commissioners he exercised a discretion legally vested in him by the statute and not subject to judicial control;

4th. That, in his said appointments, he had actually complied with all requirements of the law.

The case went to trial on these issues, evidence was heard, and the court, in an elaborate opinion, overruled all the defenses, and rendered judgment making the mandamus peremptory.

It is to be borne in mind that the proceeding now before us is not an-appeal, and vests us with no appellate jurisdiction over the case, under which we may review questions merely affecting the correctness of the judgment.

The application invokes the exercise of our supervisory jurisdiction-exclusively, anti in considering it we must be guided and controlled by those rules and limitations which have been-formulated and fixed by the laws of the State and the jurisprudence of this Court.

To obtain" the relief sought herein under the writs of certiorari and prohibition, these rules imperatively require that relator shall establish one of three things, viz: either 1st, that the proceedings are infected with some fatal irregularity rendering them absolutely void, such as want of citation or"refusal oí a hearing, and the like; or 2d, that the jurisdiction of the cause did noi belong to the court which assumed it, but to a different court; or 3d, that the cause is of a nature jurisdiction of which is denied to any court, because not within the limits of judiciary power.

It is not pretended that either of the two first grounds of relief is presented in this case. The perfect regularity of the proceedings in the' court below is not questioned. There is no complaint that the court has assumed a jurisdiction which is vested by law in some other court. On the contrary, it will be admitted that, if any court is vested with jurisdiction over the persons and the subject-matter of the controversy, it is, and must be, the Civil District Court.

It follows, therefore, that the whole contention of relator is narrowed down to the proposition that the proceedings concern a subject-matter, the power to consider and determine which lies outside of the functions and powers of the judiciary.

Analyzing as completely as we can the positions of relator, we find this contention to be based on the following grounds, viz:

1st. That relator is a constitutional officer belonging to the executive depaitment of the government, and not subject to judicial control in the execution of the functions of bis office. This is answ'ered by the very language of the Code of Practice touching the writ of mandamus, Art. 834 of which declares: “It may be directed to public.officers to compel them to fulfil any of the duties attached to their office, or which may be legally required of them.” There is no exception of constitutional executive officers, and our Reports are full of cases in which such jurisdiction has been exercised over the Auditor, the Treasurer, the Secretary of State, and other executive officers.

2d. That as the subject-matter of the case is one touching the conduct of elections, such matter does not lie within judicial cognizance. There is no authority and no reason to support this broad proposition. It is true that it has been held by this Court that in the absence of special statutory authorization courts are without jurisdiction, ratione material, to entertain cases of contested election. State vs. Judge, 13 Ann. 89.

• This is a rule widely recognized and generally prevalent, and resting on peculiar principles; but it has never been extended so far as to exempt officers charged with the conduct of elections and with the ascertainment and promulgation of the results thereof from judicial control to require them to perform the specific duties imposed upon them by lawu

Thus says Mr. High, under the full sanction of authority: “Notwithstanding the tule denying the relief by ra and aim s to compel admission to a disputed office or to determine the title thereto, there are certain incidents connected with the question of title and election to public offices, which, from their nature, involve the exercise of merely ministerial powers, and are hence properly subject to control by mandamus. Among those incidents are the canvassing of election returns, the issuing of cer tificates of election to the persons entitled thereto, and the issuing of a commission to a claimant duly elected.” High Ext. Legal Rem., § 55; State ex rel. Barbin vs. Secretary, 32 Ann. 579.

So says High : “ Mandamus has also been held to be an appropriate remedy to protect the right of a voter to registration of hii name upon the poll-list. And a registering officer, appointed under the laws of the State for this purpose, may be compelled by the writ to register the names of voters applying for registration and properly entitled to vote.” High, id. § 66.

Of course, in all such cases, the propriety of the writ will depend upon the distinction between duties of a purely ministerial nature involving the exercise of no official discretion, and those which are (¿««s¿-judicial and involve the exercise of such discretion.

It would, indeed, be monstrous if officers charged "by the Legislative will, with specific duties intended for the protection of the electoral right of the citizen and for the security of fair elections, could disregard and violate them with impunity. No authority is or can be cited exempting public officers charged by law with specific ministerial duties in election matters from the same judicial control which is exorcised over all other officers of the State with reference to similar duties,

3. It is claimed that the statute required that the appointment of commissioners should be made ten days before the election, and published at least six days before the election ; that having so made and published his appointments, his power was exhausted, and courts had no power to compel him to undo or to correct what had been done. We are strongly doubtful whether this ground does not go exclusively to the merits of the case, and is not, therefore, beyond our review in this case. But, at all events, it is entirely without merit.

The right to invoke the aid of courts to compel the performance- of this alleged duty could not arise until the relator was actually in default. This is elementary, and is strongly announced by Mr. High, as follows : “ Mandamus is never granted in anticipation of a supposed ■omission of duty,'however strong the presumption may'be that the peisons whom it is sought to coerce by the writ will refuse to perform their duties when the proper time arrives. It is, therefore, incumbent on the relator to show an actual omission on the part of the respondent to perform the required act, and since there can be no such omission before the time has arrived for the performance of the duty, the writ-will not issue before that time.” High, Ex. L. E. § 12.

Eelators in the case below were not in position to exercise their right until, by the action of the Eegistrar, he placed himself in default by violating his alleged duty. A legal right cannot be paralyzed by such a paradox which says to the person injured: “You cannot proceed before the Eegistrar acts, because it is too soon ; and you cannot proceed after he has acted, because it is too late.” On the contrary, we are satisfied that the very object of the law in requiring the Eegistrar to act. in a certain period preceding the election was to afford parties an opportunity to correct any violation of his duty which he might commit.

4. The final grounds are that the law relied on did not impose on the Eegistrar the specific duty, the performance of which was sought to be enforced by mandamus, and that the duty imposed with reference to the appointment of commissioners was of a character involving the exercise of official discretion, and that, having exercised such discretion and- discharged his duty in accordance therewith, his action is not subject to judicial control by mandamus.

It is obvious that these questions belong exclusively to the merits of the cause. In every mandamus proceeding brought against public officers, in the language of the Code of Practice, “ to compel them to fulfil the duties attached to their office, or which may he legally required of them,” the questions necessarily arise, Is the duty alleged imposed by the law? Has the officer violated the duty ? Is the duty of a character authorizing the court to enforce it by mandamus? The solution of these questions constitutes the entire merits of every such proceeding and the sole judicial function involved therein. The court seized with jurisdiction of such a controversy is necessarily invested with full power to examine and determine these questions of mixed law and fact, the determination of which is a necessary condition precedent to the rendition of any judgment whatever. Tile claim that error in such determination entails the nullity of the proceeding and judgment, has no more foundation than a claim that like error would strike any other judgment with nullity. We are clearly precluded from considering such questions in this proceeding. As we said in a former case and have often reiterated: “ The Constitution intended that our supervisory jurisdiction should be distinct, in nature as well as in name, from our appellate jurisdiction. The former was intended, simply to enable us to compel inferior courts to perfoun their functions, to prevent them from exceeding the bounds of their jurisdiction, and to enforce the observance of that regularity in their proceedings, which is essential to fairness in the conduct of contradictory litigation. Mere error in the decision of questions properly submitted to their determination and regularly determined, can only be corrected in the exercise of a jurisdiction purely appellate.” State ex rel. Wintz vs. Judge, 32 Ann. 1225.

Finding, in this case, that the respondent judge had jurisdiction of the cause, that he was vested with judicial power to hear aud decide it, and that his proceedings have been, in all respects, regular, there is no occasion or room for the exercise of our supervisory jurisdiction,

It is, therefore, ordered that the applications for writs of certiorari and prohibition be denied, at relator’s cost.


author: Watkins, J. Fenner, J.

text:
    No. 10,002.
    State ex rel. Samuel Wood vs. Board of Liquidation of the City Debt.
    The premium bond plan included all tbo bonded debt of the city of "New Orleans of date antecedent to tho adoption of the premium bond act in 1876 3 but it did not include any part of tbe city'* floating debt.
    Act 58 of 1882 included all of the city’s bonded debt, other than that which had been funded into premium bonds.
    Acts 31 of 1876 aud 58 of 1882 operate as contracts between the city and her bonded creditors, and were based upon adequate consideration.
    Tho surplus of the premium bond tax beyond the requirements of holders, other than the city, received its destination to tho retirement of outstanding bonds, not funded into pi emium bonds by tbo terms of the premium bond act in 1876, antecedent to the adoption of the Constitution of 1879, aud this covenant was but re-affirmed and reannouuced in Act 58 of 1882.
    There is a conflict betweeu the provisions of Section 4 of, Act 67 of 1884 and that of Section 7 of Act 58 of 1882, bo*li of them having the common object of dedicating to two different classes of city debts the surplus of tho premium bond tax.
    Persons who deal with political or municipal corporations possessed of limited power to contract debts, must rely for 1 heir payment upon the annual revenues provided for them, by law, in tho absence of any special statute authorizing tho creation of a contract therefor.
    Any posterior law which has for its object to confer on such creditors as originally possessed no contract lights tho prerogatives of those who had, aud thereby infringes the latter, is amenable to the objection of impairing the obligation of protected contracts.

      APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      W. 8. Benedict for Kelator and. Appellant.

      Leovy & Blair and H. O. Miller for Eesponuent and Appellee.
   The opinion of the Court was delivered by

Watkins, J.

This is a proceeding by mandamus on the part of a holder of bonds of the city of New Orleans, bearing date July 1, 1884, and which were issued under and in pursuance of Act 67 of 1884, to coerce the Board of Liquidation to comply with its terms, and particularly with those of Sections 3 and 4.

Kelator avers that it is the respondent’s duty to apply, in the manner therein specified, the revenues, property and assets of the city to the payment of the interest and the redemption and cancellation of, the -capital of his bonds.

He further avers that it is the duty of respondent to advertise for sealed proposals for the exchange of drawn premium, bonds in the possession of the city for the bonds issued under said act to the amount of $50,000, after each allotment of series ; and that as said statute has been in force since the date of its passage, on the 9th of July, 1884, and all the bonds in contemplation thereof have been issued, there should.'woiu be advertised for exchange, in accordance with Sections 3 and 4 of said act, for the various series allotted after that date, and regularly hereafter, bonds to the amount of $50,000 to each allotment of series within that time.

He further avers that the respondent is in possession of funds in excess of the interest due on said bonds, and, also, in excess, of the amount that is necessary to carry out the provisions of said act, and its failure to do so is a plain violation of law and an impairment of his contract in the sense of the State and Federal Constitutions.

The respondent’s return is elabórate, and we make the following synopsis of it, viz :

That the premium bonds were given in exchange for other valid bonds of the city that were issued under laws anterior in date to the enactment of the premium bond act, on the 6th of March, 1876, and which pledged and dedicated to their payment adequate and sufficient ■taxes.

For their discharge, on the premium plan, a five mill tax was authorized and consecrated thereto, and on the faith of it they were surrendered and funded to the extent of $13,000,000, and of which there are extant about $8,000,000 at this time.

That the premium bond act provided that this bonded debt aggregating $20,000,000, when exchanged for premium bonds of $20 each, should be divided into 10,000 series of 100 bonds each, the whole to be numbered from 1 to 10,000. That a certain amount of those series should be annually paid, in pursuance of an allotment made from the numbers of all the series, and that premiums should be awarded on the bonds of the drawn series in a similar manner.

That, as all of said bondholders had not participated in the plan and funded their bonds, all of the series drawn at the different allotments did not pass into the hands of holders, but near $8,000,000' thereof remained in the possession of the city; that the premium bond tax, to the extent it would have been applied to its proportion of the premium bonds, constituted, in contemplation of the premium bond act, a surplus represented by the draw» premium bonds in the possession of the city, and that this surplus was, by the terms of the act,, dedicated to the payment of these unfunded bonds, or exchanged therefor.

That the bonds contemplated by the premium bond act were binding contracts between the city and bondholdei’s, and the adequate and sufficient taxes dedicated to their payment by the laws under which they were issued were enforceable and valid.

That in 1882 the Legislature made further provision for those unfunded bonds by authorizing the issuance of another class of bonds therefor, known as extended consolidated and certificate bonds, to the payment of which an additional five mill tax was dedicated, and said surplus of the premium bond tax was pledged; that on the faith of said pledge and dedication $5,000,000 of same were exchanged therefor, and are still extant, and solely dependent thereon for payment and to which they have a vested right.

That of said bonds there are remaining unfunded, under either act, $3,000,000, which are still entitled to claim the benefits of both and to participate in said tax and surplus, and which right the Legislature by any subsequent act is impotent to impair or take away.

That, in pursuance of the statutes of 1876 and 1882, the city has levied and is annually levying a one per cent tax for the exclusive benefit of all of said bondholders, whether their bonds have been funded or not; and, as it is charged with the custody and application of the proceeds thereof, it is wholly without power to divert them to any other object.

That Act 67 of 1884 provides for the issuance of bonds into which are to be funded judgment or floating debts — as contradistinguished from contraet or bonded debts — aggregating $900,000 in amount, the greater part of which has been created since 1873, and no part of wiiich was contracted prior to 1870, which was originally entitled to no special or sufficient tax for their payment, but which were wholly dependent upon the adequacy of the annual revenues for their discharge, and which are not entitled to participate in the one per cent tax.

That said act, in providing for an exchange of drawn premium bonds in the possession of the city for said floating debt bonds, undertakes, in effect, to appropriate to the latter in advance of their maturities the said surplus to the extent of $200,000 annually, or $500,000 for the time which has elapsed since the passage of the act, to the prejudice of the contract creditors of the city ; and that this will the more clearly appear from the fact that respondent has in hand neither funds or property of the city — such as is mentioned in the act — with which to pay any part of said floating debt bonds.

That the amount of the premium bonds to be annually paid is annually increasing in value, and hence the proportion of the five mill tax applicable to the payment of each succeeding drawn series thereof is annually increasing to such an extent that the aggregate yearly excess is less than $80,000; therefore, if drawn premium bonds in possession of the city are given in exchange for floating debt bonds to the amount required, not only would the surplus be consumed, but the proceeds of the premium bond tax would be absorbed, and the premium bond holders and the holders of bonds not funded would be deprived of the amount annually due them therefrom.

Finally, the respondent returns that the Act of 1884 is, in effect, an attempt to divert and misapply the one per cent tax in contravention of the pledges contained in prior laws, and, is enforced, contracts made in pursuance thereof will be impaired in the sense of the State and Federal Constitutions.

The Sun Mutual Insurance Company intervened and joined the respondent in resisting the enforcement of the Act of 1884.

It claims to be the holder of certain extended, consolidated and certificate bonds of 1882; and contends that, if said act is carried into effect, its contracts under various other and prior laws, enacted in 1852, 1854, 1869, 1870, 1871, 1873 and 1876 — under which the bonds given in exchange were authorized and issued — as well as those under the law of 1882, would be impaired and violated, and said bonds depreciated in value to the amount of $5000.

It also claims to be the owner of certain premium bonds, and if said act is enforced] its contract rights, under the premium bond act, will be likewise impaired and said bonds depreciated in value to the extent of $5000.

It further avers that, by tbe terms of said statutes- — all of which were enacted prior 1o 1879 — the State of Louisiana and ihe city of New Orleans- contracted with the bonded creditors of tbe latter to provide a sulfioient tax for their payment.

That the undertaking, on the part of the State,.acting for the city, as set forth in sections 5 and 6 of Act 58 of 1882, to levy a five-mill tax for the exclusive benefit of the bonds issued thereunder and others which were issued under prior laws, and not yet funded, was in furtherance of the contract rights created thereunder, and that its pledge of the surplus of the premium bond tax to tbe payment thereof was in further fulfillment of same.

That to said five-mill tax and surplus said bondholders not only had and have a vested light, but they give an adequate consideration therefor in surrendering their old bonds, the payment of which was secured by an adequate tax, and in extending their payment for forty years, and that the exchange contemplated by the Act of 1884, if enforced, would impair its contracts in the sense of the Constitution and the law.

As a part of its petition it adopted the averments of the respondent’s return.

Its alternate prayer is that, in the event the desired relief is granted the relator, its contract rights, under prior laws, be protected.

Hence, the grounds of the respondent’s and intervenor’s resistance to the.demands of the relator may be summarized as follows, viz :

First — That the debts of the city for which the bonds of 1884 were issued were floating debts, which were created under the general laws of the State, which made no other provision for their payment than such as may be contained in the annual revenue laws.

Second — That the premium bond plan only included the bonded debt of the city, contracted under special statutes, enacted prior to the passage of the Premium Bond Act in 1876, and which provided sufficient and adequate taxes for their payment.

Third — That the five-mill tax provided in the premium bond act was dedicated to all such bonds, whether exchanged for premium or not; and that the five-mill tax provided by Act 58 of 1882, and the surplus of the premium bond tax were pledged to the bonds issued thereunder and others that still remained unfunded.

Fourth — That if the provisions of the Act of 1884 are enforced, as demanded by the relator, the vested rights of the bonded creditors— those who have not funded their bonds, as well as those who have— will be divested and their contract rights impaired.

I.

From the record we have obtained the following statement of facts, viz:

That the amount of the bonded indebtedness of the city that was included in. the premium bond plan was about $20,000,000 in capital alone.

Of this amount there were exchanged for premium bonds the sum of $13,263,300.

They were issued under the following several statutes, viz :

Act 40 of 1833, Act 71 of 1852, Acts 108 and 109 of 1854, Act 49 of 1869, Act 7 of 1870, Acts 48 and 100 of 1871, Act 73 of 1872, and Acts 71 and 103 of 1874.

Of the remainder of the bonds not funded into premiums $3,259,000 were funded into forty-year bonds under Act 38 of 1882, and there remained a surplus of bonds — not funded under either act — aggregating $2,988,400 which are still extant.

The amount of premium bonds in the hands of third persons, other than the city, is $7,418,240.

The annual yield of the one per cent tax for the four years antece- . dent to 1887 was as follows, viz :

For 1883, $960,240; for 1884, $947,950; for 1885, $994,480; for 1886 $849,100. ’

The total amount of funds in the hands of the respondent on the 1st of March, 1887, derived from the one per cent tax was $294,000, subject to a reduction for unpaid interest on the bonded or contract debts to that date, $130,000, and it has no other assets in hand except some shares of New Orleans Waterworks stock.

There has been required annually, for the redemption of premium bonds and drawn premiums in the hands of holders, other than the city, about $400,000, and this ¡amount has been, and still is, under, the premium bond plan, annually increasing, so that the yearly surplus applicable to drawn premium bonds in the possession of the. city, is less .than $80,000, and it is annually diminishing in., amount.

. .At the first drawing that occurred in 1887, the city drew thirteen series, representing' $26,000 of premium bonds, while there were drawn by third persons extant forty-seven series, representing $94,000 of premium bonds and $16,000 of premiums — the whole being equal to $110,000.

At this ratio they would be entitled, under four quarterly allotments in 1887, to $440,000; hence, the surplus applicable to drawn premium bonds m possession of the city would be only $50,000.

The annual interest on the bonds issued under the Act of 1882 and on the unfunded bonds of years antecedent to 1876, aggregates $564,000, therefore, the surplus of the premium bond tax of 1887, if applied thereto — less the amount of the five-mill tax — would leave a deficit of $40,000.

The floating debt of the'city was incurred in years subsequent to 1870, and was to be paid out of the revenues of the respective years in which it was so incurred, and when there was an insufficiency of money on hand to pay same when presented, certificates were issued payable out of the revenues of said ym&rs when collected, and such certificates evidence the floating debt.

The amount of the judgment or executory debt — representing in great part the floating debt — funded into bonds under Act 67 of 1884, is $980,000.

IT.

From this state of facts the following propositions may be taken as clearly established, viz:

1. That the premium bond plan included all the bonded debts of the city prior in date to the passage of Act 31 of 1876, but that it did not include any part of the city’s floating debt.

2. That Act 58 of 1882 included all of her bonded debt other than that repiesented in the premium bonds.

3. ‘That all of those bonds were issued in pursuance of particular laws enumerated, and which authorized and directed the levy of sufficient taxes to meet them.

4. That Acts 31 of 1876 and 58 of 1882 operate as contracts between the city and her bonded creditors, and were based on an adequate consideration.

5. That as there is, approximately, an annual surplus of the premium ■ bond tax of less than $80,000, applicable to the drawn premium bonds in. the possession of the city, the bonds funded under the act of 1884 — if relator’s demand be granted — would not only absorb it,'bat would absorb a large proportion of that tax that is applicable to drmvn premium bonds, cCnd premiums held by third persons. Kelator’s demand being for drawn premium bonds, be would, if successful, bo entitled to immediate payment of the whole amount, as soon as the exchange should be consummated. If it was for undrawn premium bonds, the, consequence would not be so serious.

III.

Section 3 of Act 67 of 1884 is couched in the terms following, viz:

“ That for the further redemption of said bonds, the said Board of Liquidation is hereby authorized and required, after each allotment of series following the passage of this act, to advertise for sealed proposals for the exchange of drawn premium bonds in the possession of the city, for the bonds authorized herein, to the amount of $50,000 of said bonds,” etc.

Now, as there are four allotments of series annually, the bondholders under thrt act would be entitled to exchange their bonds annually for $200,000 of drawn premium bonds, and they would be entitled to $500,000 thereof since the date of the passage of the act.

The effect of this plan, if enforced, would be to enable the holders of such bonds to realize the capital and interest within a few years, whereas the holders of consolidated and certificate bonds must wait ten and forty, and the holders of premium bonds must wait fifty years; i. e., if the one per cent tax were sufficient to pay them all. Bat we have seen that it would not — the annual requirements of the 1884 bonds being $200,000; that of the drawn premium bonds held by third persons $440,000; that of the extended and unfunded bonds $564,000 ; and the one per cent tax only yielding about $990,000. There must, of necessity, be an annual deficit of about $215,000 — an amount in excess of that demanded annually for the bonded creditors of 1884.

Not only is this' true, but, if the entire amount of $500,000 demanded by the relator is allowed him, the entire"proceeds of tlie premium bond tax would be insufficient to meet it — the same being $495,000 — and all the bonded or contract creditors would be deprived of (my participation therein, for at least one year; and of a large portion thereafter, until the $980,000 of 1884 bonds should be fully paid.

lu this manner the premium bond plan of 1876 would be impaired, if not annihilated, and so would the extended debt scheme of 1882.

But, perhaps, the most serious objection to the act of 1884 is, that it tends to prefer floating-debt bonds, not bottomed on any contract, to bonded debts of the city, and thus impairs the latter’s contract rights. It thus confers upon a class of creditors, holding evidences of debt, primarily unsecured, and having only the right to collect their claims from any balance there might he of the annual revenues of any particular year, not only tile right to the proceeds of a special tax, but to the particular tax dedicated to contract creditors, who had made important concessions to obtain it — and years before.

This is attempted and insisted upon, in the face of the following provisions of Section 7 of 58 of 1882, viz: “That the surplus proceeds, if any, of the premium bond tax of each year, remaining in the hands of the Board of Liquidation of the city debt, or surplus on hand at the time of the passage of the act, after the drawn series, interest and premiums thereon, exigible or due to the holders thereof, have been provided for, or fully paid, shall also be deposited with the fiscal agent of the said Board, to the credit of the account known as ‘ the city debt fund,’ and applied exclusively as provided in section five”; i. e., “to the objects and purposes of this act.”

There is a conflict between the provisions of the act of 1882 and the provision of Section 4 of Act 67 of 1884, which authorizes and requires the respondent “ to advertise for sealed proposals for the exchange of draivn premium bonds in possession of the city.” Both have exclusive reference to the surplus of the premium bond tax, and, as we have satisfactorily shown, it cannot meet both.

Section 4 of Act 67 of 1884 manifestly impairs the contract of the bonded creditors of the city as recognized and established under Section 7 of Act 58 of 1882.

Persons who deal with political or municipal corporations possessed of limited power to contract debts, must rely for their payment upon the annual revenues provided for them by law, in the absence of any special statute authorizing the creation of a contract therefor.

Anjposterior law which has for its object to confer on such creditors as originally possessed no contract rights the prerogatives of those who had, and thereby infringe the latter, is amenable to the objection of impairing the obligation of their protected contracts, and cannot be enforced by mandamus.

IY.

But our attention has been attracted to the opinion of the Supreme Court in New Orleans Board of Liquidation vs. Hart, 118 U. S. 136, et seq., and it is relied upon by counsel for relator as announcing a contrary interpretation of the statutes which are drawn in question here, in determining a question similar to the one now before us.

The one under consideration in that case was the right of the relator, Hart, to have his executory judgment funded into bonds, in pursuance of the provisions of Section 2 of Act 67 of 1884, it being “founded on contracts, for municipal purposes, made from 1871 to 1877.”

To his demand the respondent board interposed, as an objection to their issuance, “ that all the property of the city not dedicated to public use, and, also, the surplus of what is known as the premium bond tax, were pledged, under Act 58 of 1882, and by previous legislation, to the payment of other bonds of the city which were outstanding; and that the act of 1884, in so far as it directs a diversion of that property and fund, impairs the contract with the holders of those bonds, and is, therefore, unconstitutional and void.”

The Court made a careful analysis of those statutes, and stated their conclusions thereon, and from which we make the following extracts, viz:

“ There is no doubt of the right of the relator, under the act of 1884, to the bonds promised in compromise made with the city. His judgment is of the class of debts which it is made the duty of the board to retire and cancel by the exchange of the bonds provided, or the sale of them, and the application of their proceeds. * * *
“As seen by ihe preceding statement, all of theproperty and funds of the city and the excess of the proceeds derived from the tax for the interest on the premium bonds, beyond what was needed, were, by the act of 1880, pledged to pay her entire debt, except the floating debt previously created. This floating debt may have been as meritorious as the funded debt and the duty to make provision for it equally as binding. Why all the property and funds of the city should be appropriated to the latter debt, to the exclusion of the former, does not appear.
“ The Constitution of 1879 contemplates that provision shall be made for tile payment of the entire debt. It declares that the G-eneral Assembly, at its next session, shall enact such legislation as may be proper to liquidate the indebtedness of the city of New Orleans and to apply its assets to the satisfaction thereof; and this means, obviously, lhat the entire indebtedness in whatever form it exists, whether bonded or floating debt, and not merely a part of it. And the application of the assets of the city is to be in satisfaction of all the debts alike,”, etc.

From the foregoing it is evident to our minds that the court dealt with the question of the proper application of the “ assets ” and “the property and funds of the city,” and not with the surplus of the premium bond tax.

For it will be observed that the point of resistance in that case was “ that the act of 1884, in so far as it directs a diversion of that property and fimds, impairs the contract,” etc.

No question was made by the respondent upon the score of the premium bond surplus.

It will be likewise observed that the court, when speaking of what was dedicated, both “the property and funds of the city” and “the excess of the proceeds” of the premium bond tax were included ; but, in treating of what was applicable to the payment of the city’s indebtedness, the phrase “property and funds of the city” was alone employed.

This theory is demonstrated by the reasoning of the court, which immediately follows our quotation, predicated upon the article of our code which declares that “ whoever has bound himself personally is obliged to fullfil his engagement out of all his property, movable and immovable, present and future,” R. C. C. 3149; and, also, on the article which declares that “ the property of the debtor is the common pledge of his creditors, and the proceeds of the sale must be distributed among them ratably, unless there exist some lawful cause of preference. R. C. C. 3150.

It is manifest that a tax is but a forced contribution levied upon property of the citizens for the purposes of government, and is, in no sense, property of the corporation.

As such, it does not respond to the articles cited, nor to the argument and reasoning of the court.

This conclusion is fortified by the concluding paragraph of the opinion, viz:

“ With the bonds be will not have any preference over other bondholders, but will be entitled to share ratably with them in the proceeds of the property appropriated for the payment of their bonds.”

The reasoning and argument of the court was directed at Section 3 of Act 67 of 1884, which provides “that it shall be the duty of the city of New Orleans to turn over and transfer to the Board of Liquidation, immediately after the passage of this act, all the property of the city, real and personal,” etc., for the purposes thereof.

But that section is entirely eliminated from this controversy, because the proof discloses that the respondent is is possession of no -“property or funds” of the city which are applicable under that section to any of the debts of the city. The sole question here is, whether or not the Legislature had the power to dedicate the surplus of the premium bond tax to bonds that were to be issued under Section 2 of Act 67 of 1884. We are of the opinion that it had not.

In treating^of the purpose [and effect of the premium bond act we said, in the Rivet case, that the tax was denominated’ “the premium bond tax,” and was separately mentioned on tbe tax rolls and in the tax receipts; and that the law “provided that any surplus arising from the requirements of the plan and all drawn series and premiums falling to the city should be used in the retirement of outstanding bonds not funded into premiums.”

We styled this a legislative, reciprocal and synallogmatic contract between the city and her bonded creditors. R. C. C. 1765; 35 Ann. 134, Rivet vs. City of New Orleans.

Hence, it is apparent that the surplus of the premium bond tax, beyond the requirements of the holders of premium bonds, and in possession of the city, received this particular distinction by the premium bond act prior to the adoption of the Constitution of 1879.

This, the State for the city, had a perfect right to do. In the act of 1882 this contract was but re-affirmed and re-announced. It cannot be questioned now. The contrary provisions of the act of 1884 must yield and be treated and considered as not written in so far as they are concerned. The judge a quo correctly declined to make the alternative writ of mandamus peremptory.

Judgment affirmed.

Concurring Opinion.

Fenner, J.

The most perplexing problem that has confronted this Court has been the adjustment of the rights and obligations of the city of New Orleans and her creditors under the State Constitution of 1879.

That constitution contained the broad provision : No parish or municipal tax for all purposes whatsoever shall exceed ten mills on the dollar of valuation.”

At the-time of its passage the city owed debts exceeding twenty millions of dollars, arising mainly out of antecedent contracts, provision for which, in accordance with their stipulations would, at the time, have required an annual tax far exceeding the limitation fixed, leaving not a cent for the necessary support or alimony of the city.

Considering that the Constitution did not terminate the corporate existence of the city of New Orleans, but obviously contemplated its continuance as a going municipal corporation, the conclusion was irresistible that the ten mills tax authorized therein was designed, primarily and to the extent necessary, to be applicable to the support or alimony of the city, and that no creditor or other person could interfere with its appropriation to such purpose.

On the other hand, the State Constitution was utterly incompetent to impair the obligations of antecedent contracts protected by the Constitution of the United States or to withdraw the powers of taxation applicable to their satisfaction at the dates of said contracts, which powers, under the settled jurisprudence of the United States Supreme Court, were read into and formed part of the contracts.

We, therefore, held that the powers of taxation possessed by the city was derived from two sources, viz:

1. From the State Constitution to the extent of ten mills, which was primarily applicable, so far as necessary, to the alimony of the city.

2. From valid legislative authority existing at the date of valid prior contracts, forming part thereof, irrepealable because protected by the Constitution of the United States, and, therefore, continuing to exist until the contracts shall be discharged. Saloy vs. City, 33 Ann. 1879.

We held, further, however, that the constitutional limitation was absolutely destructive of the rights of every creditor to exact a higher rate of taxation for the satisfaction of his debt, unless his right was founded on antecedent contract protected from impairment by the Constitution of the United States.

Hence, where a judgment creditor, on a cause of action founded in tort, and not in contract, sought to invoke a higher rate of taxation possessed by the city at the date of his judgment, we denied his claim ; and this decision was affirmed by the Supreme Court of the United States. State ex rel. Folsom vs. Mayor, 32 Ann. 709.

The foregoing have been the germinal principles, according to which we have determined the rights of all classes of the city’s creditors, guided throughout by a close adherence to the decisions of the Supreme Court of the United States. State ex rel. Moore vs. City, 32 Ann. 736; Taxpayers vs. City, 33 Ann. 79; State ex rel. DeLeon vs. City, 34 Ann. 477; Rivet vs. City, 35 Anm. 134; Carriere vs. City, 36 Ann. 687; Marchand vs. City, 37 Ann. 14; N. O. Gas Light Co. vs. City, 37 Ann. 436; Thorn vs. City, 37 Ann. 528; Labatt vs. City, 38 Ann. 283.

The sole question presented for our determination in the present case is the validity of the section 4 of act No. 67 of 1884, which directs the application of drawn premium bonds in the possession of the city to the redemption of bonds issued under the same act in taking up the floating debt of the city.

In view of the provisions of the premium bond act, dedicating the entire tax levied thereunder to the then existing bonded debt, whether funded into premiums or not so funded, and absolutely requiring said tax to be employed exclusively “ in the execution of the provisions of this act” (section 11); in view of the unequivocal provisions of act 58 of 1882, devoteing the entire surplus of the said tax to the payment of the interest and principal of the bonds issued thereunder in exchange for the unfunded bonds; and in view of the consistent jurisprudence of this court that the premium bond tax could not be evaded, diminished or diverted from the purposes to which it was devoted by the act itself — the question presented would hardly possess the slightest seriousness, but for the inferences drawn by plaintiff from a decision of the Supreme Court of the United States in the case of Hart vs. Board, 118 U. S. 136.

The chief opinion just read demonstrates very satisfactorily that the Supreme Court did not consider or deal with this particular question, and had not the slightest intention of thus overturning the jurisprudence of the State, destroying the vested rights of the bonded creditors and deranging and undermining the entire settlement of the city’s bonded debt.

In the cases of Moore and Rivet, 32 Ann. 736, and 35 Ann. 134, we exhaustively analyzed the premium bond act, and we held that while those features thereof which impaired the contract rights of non-funding bondholders were absolutely null and void, yet that the rights of funding bondholders who had accepted the proposition and had exchanged their bonds for premiums were equally entitled to protection. We maintained the validity of the act as a contract with the funding bondholders entitling them, under all circumstances, to require the city to levy the entire tax provided therein and to apply it as directed by the act; but we held, at the same time, that the rights of non-funding bondholders were not affected thereby, but remained intact, as if the premium bond act had never been passed.

We have never allowed the premium bond act to affect in the slightest degree the rights of non-funding bondholders, or of any other antecedent contract creditors. Thus, in De Leon’s case, 34 Ann. 477, where a holder of other bonds issued at a time when the city’s power of taxation for general purposes was fifteen mills, we allowed the necessary tax, saying: ‘‘Although the city may levy ten mills for its alimony and five mills for the premium bonds, the latter is not to the prejudice of the right of relator to have a tax levied within five mills to the extent necessary to satisfy his contract.”

We applied the same principle in the cases of Carriére, Marchand and Thorn (36 Ann. 687; 37 Ann. 14, and 37 Ann. 528), all of which were proceedings for the enforcement of contracts other than bonds, or part of the floating debt, passed prior to the constitutional amendment of 1874.

In Rivet’s case we said in analyzing the premium bond act: “It imposed on the Council the duty to levy annually a tax, * * which, after the year 1881, was to be at least one-half of one per cent; it provided that the tax so levied should constitute a special fund to be used for no other purpose than the carrying out of the plan; * * it provided that any surplus arising above the requirements of the plan and all drawn series of premiums falling to the city should be used in the retirement of outstamding bonds not funded into premiums.”

In another part of the same opinion we said : “ Under the law as it exists the city is required to invest the part coming to her in retiring unfunded bonds. If it be desired that such portion should be applied to the payment of interest on bonds other than premiums, and thus reducing the tax necessary to pay such interest, application should be made to the Legislature — certainly not to tho judiciary.’?

Erom the foregoing, it conclusively appears that the premium bond tax was a special tax intended to create a special fund, dedicated and applicable, ab origine, exclusively to the then existing bonded debt of the city, so dedicated asa stipulation of a valid contract which neither the State nor city could impair; that its imposition and application affected in no manner the rights of other creditors, which remained precisely as if the act had never been passed; and that the unbonded creditors had not and could not acquire any right to, interest in, or control over the special fund arising from this special tax, because irrevocably dedicated exclusively to the bonded debt.

Now the Act 58 of 1882 was an exercise of the legislative power in exact accord with the suggestion made by us in the Rivet case above quoted, at least in so far as it dealt witli the surplus of the premium bond tax and the drawn premiums held by the city. These special funds were applicable exclusively to the unfunded bonds, and nobody but the bondholders had any right or interest in them.

Any voluntary agreements between the city and the bondholders as to the disposition and application of these funds in accordance with their destination would be valid and binding, because they were the sole parties in interest and the only ones whose rights could be affected.

The Act 58 of 1882 is fully analyzed in the chief opinion just read, and it exhibits a contract between the city and her bondholders perfectly binding as to the application of the premium surplus and drawn bonds, of which nobody can complain except non-consenting bondholders, who raise no voice against it, and wliicb neither the city nor State can impair.

The attempt of the State, in the subsequent act of 1884, to divert these special funds to the satisfaction of the city’s unbonded debt is a flagrant attempt to impair the obligations of antecedent valid contracts, wliicb, we are very certain, the Supreme Court of the United States, with a proper understanding of the case, would never sanction, and which our duty, under both the State and Federal Constitutions, forbids us to countenance

The floating debt of the city of New Orleans is divided into two classes : 1. That originating prior to the constitutional amendment of 1874. 2. That originating after said amendment.

The first class, so far as founded on contract, can suffer nothing by our decision herein, because it is entitled to satisfaction by taxation. Carrière’s case, 36 Ann. 687; Marchand’s case, 37 Ann. 14; Thorn’s case, Id. 528.

The second class is not a debt of the city, at all, but a mere claim on the uncollected revenues of the years in which they were incurred, and entitled to satisfaction from no other source. Taxpayers’ case, 33 Ann. 79; Gas Light Company’s case, 37 Ann. 436.

It is, to say the least, doubtful whether the word indebtedness, as used in Art. 254 of the Constitution, embraces these claims, and whether, under Art. 45, the General Assembly lias power to fasten such claim upon the city as debts. See Labatt’s case, 38 Ann. 283.

But it is not necessary to consider these questions in this case, and they are only referred to for the purpose of showing that the major portion of the so-called floating debt dealt with in the act of 1884 is far from being equally meritorious with the bonded debt, or even equally binding in law.

All the judges concur in this opinion as well as in the chief opinion.