text:
    No. 12,906.
    In re A. J. Murff, Applying for Writ of Error to the Court of Appeals, First Circuit, in Case of T. F. Bell vs. A. J. Murff.
    1. The power to review by writ of certiorari tbe decisions of the Court of Appeals was conferred on. this court mainly to secure uniformity of jurisprudence, and to authorize sueli review when the question decided by the Court of Appeals was one of law and public importance. The provision in the Constitution of 1898, conferring on this court this power to issue writs of certiorari, is given in the terms of the acts of Congress of March 3,1891, authorizing the Supreme Court of the United States to review by certiorari the decisions of the Circuit Courts ef Appeals, and the jurisprudence of the Supreme Court of the United States, under the act of 1891, furnishes a guide for us in the exercise of this new jurisdiction. Constitution of 1898, Art. 101; Act of March 3,1891; 26 Statutes, p. 828, See. 6; 141 U. S., p. 083; 144 U. S., p. 47; 162 U. S..p. 435; 165U.S., p. 443.
    2. The writ will not issue to review decisions of mere questions of fact.

      Joannes Smith and Murff & Webb for Relator.
    Petition.filed July 28, 1898.
    Opinion handed down July 30, 1898.
   The opinion of the court was delivered by

Miller, J.

The questions determined by the Court of Appeals arose with reference to the title of the plaintiff’s assignor; the prescription applicable to the action; whether the judgment for the property in a petitory action was res judicata, concluding the owner’s subsequent suit for revenues.; and whether the possessor, under a tax title decreed void, was liable for rents recognized by the judgment to exist from the time the possessor was sued by the owner for the property. I can see nothing in the determination of these questions by the Court of Appeals to call for the writ of certiorari not given to clothe this court with appellate jurisdiction, but to issue only in exceptional cages mainly to secure uniformity of jurisprudence. The other ground, substantially, that the Court of Appeals has not given effect to Art. 210 of the Oonsitution, or to the decision of this court in Bristol vs. Murff, 49 An. 357, I have examined. It was no part of Art. 210 of the Constitution, in so far as it bears on the question in this ease, to do more than require the refunding to the purchaser in the instances specified in the article of the price paid by him at the tax sale. Neither the article nor our decision modified or affected in any manner the purchaser’s liability for rents, .a question to be determined by the law irrespective of Art. 210 of the -Constitution. I see no basis to issue the writ.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 12,903.
    In re L. D. McLain et al.
    The writ of certiorari under Art. 101 of the Constitution of 1898 •will not n,ot issue to review decisions of the courts of appeal of mere questions of fact. See In r e A. J. Murff praying for the writ. 50 An., not yet reported.
    A PPLYING for Writ of Error to the Court of Appeals, First Circuit, in the case of L. D. McLain vs. N. Burgess.

      W. A. Van Hook for Relators.
    Petition filed July 20, 1898.
    Opinion handed down July 20, 1898.
   The opinion of the court was delivered by

Miller, J.

The petition shows the determination by the Court of Appeals on the respective titles of the parties in a petitory action. The Supreme Court has no appellate jurisdiction to review judgments of the courts of appeal. Article 101 of the Constitution adopts the provisions in the act of Congress, March 3, 1891, 26th Statutes, p. 828, Sec. 6, Lau Ow. Bew vs. United States, 144 U. S. 58, authorizing the writ of certiorari to Circuit Courts of Appeal. The jurisdiction of the Supreme Court of the United States under that section was doubtless in contemplation. Generally, the writ issues to secure uniformity of decision by the courts of appeal and other cases of importance presenting legal questions. There is no warrant to use the writ to correct supposed errors of the court in determining the effect of conflicting titles, as in this case. The application is denied.


author: Blanchard, J.

text:
    No. 12,767.
    City of New Orleans, Mayor and Board of Civil Service Commissioners vs. Board of Fire Commissioners.
    If there be other points or defences in a case upon which its decision may well turn, the court will pretermit an expression of opinion upon a constitutional question that may have been set up as matter of defence.
    The civil service law adopted for the city of New Orleans includes within the scope of the civil service all positions (except that of chief engineer) in the fire force only.
    It leaves untouched by the civil service other positions not clearly within the meaning of the words “fire force.”
    As to such other positions the fire board may appoint and promote independently of the civil service.
    The position of secretary-treasurer of the fire board held not to be included within the meaning of the term “fire force” as used in the statute.
    APPEAL from the Oivil District Oourt for the Parish of Orleans. Rightor, J.

      Samuel L. Gilmore, City Attorney, (Howe, Spencer & Cocke of Council) for Plaintiffs, Appellants.

      E. A. O’Sullivan for Defendants, Appellees.»

      Farrar, Jonas, Kruttschnitt & Gurley for Moulin, also Defendant and Appellee.
    Argued and submitted April 20, 1898.
    Opinion handed down June 20, 1898.
   The opinion of the court was delivered by

Blanchard, J.

This is a contest between the Board of Civil Service Commissioners, on the one side, and the Board of Fire Commissioners, on the other side, of the city of New Orleans, over the validity of the appointment of Thomas J. Moulin to the office of Secretary-Treasurer-of the Board of Fire Commissioners. See 49 An. 1323.

The question presented is whether Moulin, who is made a party defendant, was legally chosen on the 22d of March, 1897, to the position mentioned.

There is no disputed issue of fact in the case. On the 19th of March, 1897, the then existing Secretary-Treasurer of the Board of Fire Commissioners resigned, and at a regular meeting of the board held on March 22nd Moulin was elected to fill the vacancy. He entered upon the discharge of the duties of the office and still continues to discharge the same.

In May, 1897, the Board of Civil Service Commissioners brought this action, the object of which is to have the election of the said Moulin declared illegal and void as being in contravention of the Oivi Service law enacted for the city of New Orleans and made part of the charter of the city adopted in 1896. See Secs. 39 to 67, inclusive, of Act No. 45 of the acts of 1896.

The three members of the Board of Civil Service Commissioners, provided for by the act, who had been appointed by. the mayor and confirmed by the council, qualified by taking the oath on the 29th of January, 1897, and partially organized on that day by choosing one. of their number President of the Board.

On March 19th — the day the vacancy occurred in the office now in dispute — the Board met and completed its organization by the-provisional appointment of a secretary, assistant examiner, stenographer and porter. A motion was then adopted that all positions: in the police force, except that of superintendent and “all positions-under the Board of Fire Commissioners in the fire force, except that: of Chief Engineer * * * are hereby classified and included in. the provisions establishing the civil service.”

It was next ordered that a communication, which had been prepared, addressed to the Board of Fire Commissioners, relative to the-office of secretary-treasurer of said Board, be sent to the latter.

This communication, which bears the date of March 19, 1897, in substance, apprised the Board of Fire Commissioners that the Civil Service Board had organized, had proceeded with the classification of the offices and places of employment in the city, that rules for examinations, appointments and removals, in conformity with the charter, would be forthwith published, and that the Board of Civil Service Commissioners would be ready within fifteen days to examine all applicants for the position of Secretary-Treasurer of the Fire Board just made vacant by the resignation of the incumbent. It further announced that the position named was subject to classifi-cation under the Civil Service law, and could be filled only through that medium and pursuant to the rules and regulations prescribed by the Civil Service Commissioners. In support of its contention that this office was covered by the Civil Service, Sec. 57 of the Charter was cited.

The communication then suggested that if a temporary appointment to fill the vacancy was made necessary by the exigencies of the public business, such temporary appointment could be made by the President of the Board of Fire Commissioners, with the approval of the Board of Civil Service Commissioners, under Sec. 46 of the Charter, such designation, however, to remain in force not exceeding sixty days and only until a regular appointment under Civil Service rules could be made.

The Board of Fire Commissioners, advised that the position of its Secretary-Treasurer was not covered by the terms of the Civil Service statute, proceeded to the election of Mr. Moulin as heretofore stated.

Notwithstanding this the Board of Civil Service Commissioners proceeded on March 31st to give notice of competitive examination for the position of secretary-treasurer of the Fire Board, which notice was duly published, and the examination was held on April "22nd, resulting in the selection of Philo A. Tucker, who was, on May 4th, certified to the Fire Board for permanent appointment as .its secretary-treasurer,

The Fire Board replied, reiterating its position that its secretarytreasuryship was not subject to the civil service provisions of the city charter, and that no vacancy existed in said office, Mr. Moulin having been elected two months previously.

This was followed by the present suit.

As a matter of fact, the evidence discloses that the date when the rules and regulations for the government of the Civil Service Commission, in respect to examinations, appointments and removals, were approved was March 24th, that the same were adopted as a whole on March 29th, and published first on April 1st, to take effect, under the law, on April 12th.

The secretary of the Civil Service Board stated as a fact, on the stand', that between' the 22d of March (the date of the election of Moulin) to the 12th of April there were no rules governing examinations, appointments and removals.

The grounds of defence urged against plaintiffs’ demand are:

1. The unconstitutionality of those sections of Act 45 of 1890 (city charter), establishing the Board of Civil Service Commissioners, and providing for civil service in the city of New Orleans, in so far as the same purport or assume to regulate, change, alter or amend the constitution, powers and duties of the Board of Fire Commissioners, created by Act No. 83 of 1894, for this, to-wit: That in the particulars aforesaid the said act fails to express its object in its title, and is, therefore, violative of Art. 29 of the Constitution of 1879.

2. That the Board of Civil Service Commissioners was not organized and ready with its list of eligibles when the vacancy to which Moulin was elected occurred; no rules and regulations had been formulated; no classification of the various offices for civil service purposes had been made; no examination had been held; and that, under these circumstances, the Board of Fire Commissioners had the right to take independent action.

3. That the provisions of the act in question, especially Sec. 67, do not apply to the fire department, of which the secretary-treasurer is a member, but to the fire force only, which does not include the office aforesaid.

Judgment below was in favor of the defendants, the court holding that at the time of the election of Moulin the law establishing the civil service was not in force, because of the adoption of no rules and regulations and the existence of no eligible list arising from competitive examinations previously had.

Plaintiffs appeal.

With regard to the first defence urged, we do not find it necessary to pass upon the question of unconstitutionality raised. If there be ■other points in a case upon which their decision may well turn, courts will pretermit an expression of opinion upon a constitutional question that may have been set up as matter of defence.

With regard to the second ground of defence, the one upon which the trial judge determined the case, his position in regard thereto would . be absolutely unassailable were it not for the concluding sentence of Sec. 48 pf the Act No. 45 of 1890, which reads as follows:

To prevent the stoppage of public business, or to meet extraordinary exigencies, the head of any department or office may, with the written approval of the board (of Civil Service Commissioners), make temporary appointment, to remain in force not exceeding sixty days, and only until regular appointments under the provisions of this act can be made.”

Plaintiffs contend that the Civil Service Commission having given notice to the Fire Board of the classification of the office of secretary-treasurer within the civil service, and that within the sixty days an eligible candidate for the vacancy would be presented, the Fire Board was without authority, under the law, to appoint any one to the position for a period exceeding sixty days’ duration, and could only appoint for'that time with the approval of the Civil Service Board.

An objection to this contention readily suggests itself and raises a doubt of the soundness of the position, and it is this: whether or not what was done on the 19th of March by the Civil Service Commission in regard to classification of offices really amounted to the classification contemplated by Secs. 42 and 48 of the Civil Service law. In other words, had there been a sufficient classification of this office, within the meaning and intent of the law, at the time the vacancy occurred and was filled by the election of Moulin?

But we may leave this question likewise undetermined, since it is not necessary to the decision of the case, the court preferring to rest its affirmance of the judgment below on the third and last ground of defence urged.

Section 67 of the act under review declares: “The powers and duties of the Board of Fire Commissioners shall remain as now prescribed by law, except that all appointments and promotions in the fire force (except that of chief engineer) shall be in accordance with and subject to the provisions of Secs. 89 to 64, inclusive, and to the rules and regulations prescribed by the Board of Civil Service Commissioners; in all other respects the authority of said board shall remain undisturbed.” (Italics ours.)

Prior to the enactment of this law, the Fire Board had the exclusive and independent appointment of all of its employees, including promotions. The new law extended, in the main, over the operations of the Board, in respect of appointments and promotions, the sheen or tbe shadow, according as it may be viewed, of the civil service, but not entirely. It includes within the scope of the civil service all positions (except chief engineer) “ in the fire force” only, and leaves untouched by the civil service other positions not clearly within the meaning of the words “in the fire force.” As to such other positions, the Fire Board could appoint and promote independently of the civil service.

The practical interpretation to be given to the words “ fire force,” as used in the statute, excludes the secretary-treasurer of the Board. He is the clerical and financial employee of the Board. He is in this sense a part of the Board itself. He keeps its minutes, attends to its office affairs, its correspondence, receives, safely keeps and disburses its funds, and gives bond conditioned for the faithful performance of such duties. He is required to keep his office open from 9 a. m. to 4 p. m. each day, except Sundays and legal holidays. He is not on duty otherwise. He has nothing to do with the extinguishment of fires; is not required at all to attend fires; does not have to report to those charged with such duties. •He wears no uniform or other insignia to distinguish him as a member of the fire force. He is in no sense a part of the fire force in the common acceptation of that term. When one speaks of the police force, or fire force, he is usually understood to refer to the body of officers and men stationed about the city, in the one ease, to preserve order and protect life and property, and, in the other case, to be on the alert for announcement of fires and conflagrations occurring, move rapidly to the scene of the same, with fire engines, hose, hooks and ladders, trucks and other equipment, and there, under the discipline and command of trained leaders, designated for the purpose, seek to subdue and extinguish the conflagration. The Board of Police Commissioners, in the one case, and the Board of Fire Commissioners, in the other, are not of the police force, or fire force,'in this sense. Neither is the secretary-treasurer of the latter Board.

The words of a law are to be understood in-their most usual signification, and they are to be invested with such meaning as is implied in their general and popular use. C. 0. 14.

The “ fire force,” in the popular sense of the phrase, includes the chief and assistant chief of the fire department, the engineers, captains, lieutenants, drivers, strokers, tillermen, pipemen, firemen, etc. They are required to wear the prescribed uniform when on duty, and when not on duty to wear some distinguishing badge by which they are known as members of the force. They are mustered into companies, and the men are subject to the orders of the captains of their respective companies, and other superior officers, both at their houses and at fires. All this force, except the chief eugineer, is made subject, as respects appointment and promotion, to the civil service rules and regulations.

The secretary-treasurer of the Fire Board was not mentioned as excepted from the operation of the law for the reason that there was no necessity for naming him as excepted. Not coming within the definition of the term fire force,” he was never included to be excepted.

We hold him to be a ministerial officer of the Fire Board, not a member of the fire force, as that term is understood, and, therefore, not within the grasp of the civil service established for the city of New Orleans.

Judgment affirmed.


author: Nicholls, C. J.

text:
    12,821.
    State of Louisiana ex rel. Augustus C. Fowler vs. Emile Rost, Judge, et al.
    Parties disregarding orders oí injunction do so at their peril and subject themselves to punishment for contempt, unless they establish that the act enjoined was one which it was beyond the power of the court to restrain.
    QN APPLICATION for Writs of Certiorari and Prohibition.

      A. B. Billings, H. N. Gautier and Ambrose Smith for Relator.

      Ernest T. Florance for Respondent.
    Submitted on briefs April 27, 1898.
    Opinion handed down May 30, 1898.
    Rehearing-refused June 28, 1898.
   The opinion of the court was delivered by

Nicholls, C. J.

Relator averred that in the suit of the Allopathic State Board of Medical Examiners vs. Augustus 0. Fowler, in the District Court for the parish of Jefferson, a preliminary writ of injunction was issued by the judge of said court, prohibiting and restraining him from practising medicine in any of its departments in the State of Louisiana, until he should have first obtained the certificate prescribed under the provisions of Act No. 49 of 1894; that subsequently, upon the trial of said cause, and in pursuance of the provisions of that act and Act No. 13 of 1896, being an act amendatory of said Act No. 49, final judgment was rendered in favor of the plaintiffs and against relator, making said writ of injunction perpetual, and thereby prohibiting and restraining relator from the further pursuit of his profession in practising medicine in any of its departments until and unless relator had complied with all of the provisions of said statutes; that from said final judgment relator sued out a suspensive appeal to the Supreme Court, where same was pending and undetermined; that under said appeal relator had attacked said judgment for nullity, based on the alleged uneonstitutionality of said statutes upon which said judgment was predicated and under which same was rendered, and said judgment was issued.

That subsequently, on the 4th of April, 1898, the plaintiff in said cause instituted proceedings in said District Court, praying to have' relator punished for the contempt of the authority and orders of said court by reason of alleged violation by relator of said writ of injunction, and in return and answer thereto relator filed an exception to the jurisdiction of said court to try and determine the issues thereby raised, on the ground of the uneonstitutionality of said acts of 1894 and No. 13 of 1896, same having been enacted in violation of Arts. 35 and 37 of the State Constitution, as fully and specifically set forth in said exceptions; that said exceptions were overruled by the court on April 21, 1898, which then and there ordered relator to appear before said court on April 23, 1898, in order that the penalty might be inflicted upon him as punishment for such alleged violation of the authority and order of the court.

That said court was not competent to decide the issues involved in said contempt proceedings, and in deciding same usurped authority and transcended its lawful power and jurisdiction; that said judgment of said court was not subject to review by appeal, and that relator was without adequate legal remedy for the irreparable injury thereby inflicted upon him save through the exercise of the supervisory control over inferior courts.

He prayed in the premises for writs of certiorari and prohibition, and that they might be made perpetual and judgment rendered, decreeing said contempt proceedings null and void.

The District Judge having been ordered to send up the record in the matters referred to, to the end that their validity might be examined into and to show cause why his action therein should not be decreed null and void, and why further action in the premises should not be prohibited, answered, annexing to his answer the record called for. For answer he averred that as appeared from the record a writ of injunction issued from the District Court for Jefferson parish on respondent’s order on the 16th of January, 1897, forbidding relator from practising medicine in the State of Louisiana. That proceedings were filed in that court, charging relator with a violation of said injunction; that upon trial thereof respondent found him guilty of violating said writ. That under the Constitution and laws of the State he had authority to issue writs of injunction and, therefore, the issuing of the writ was within his jurisdiction, and being so he had power to punish for contempt of court resulting from said violation. That the correctness or incorrectness of his judgment in issuing said writ could not be inquired into in a proceeding for contempt, but could be reversed only on appeal from the judgment granting the writ. That the question of the constitutionality of Act No. No. 49 of 1894, which was urged as affecting the jurisdiction of the court, was not a jurisdictional question for this, that said act could not grant or take away any of the jurisdiction of the court, the same being defined by the Constitution. That as he possessed the jurisdiction to issue a writ of injunction for a civil cause, the question as to whether he exercised the jurisdiction properly in the given case could not be raised collaterally.

Opinion.

When the orders given in this case were granted we understood from relator’s pleadings that the acts which were set up as those constituting a contempt of court had been committed after the District Court had itself granted relator a suspensive appeal from the judgment perpetuating the injunction. We understood him to contend that whether the court was warranted in permitting such an appeal or not, so long as the order remained unrevoked it stood as a protection from any adverse action on the part of the •court granting it, under the maxim at least of “ actus curite non •gravabit.” That independently, however, of' this maxim, the order of appeal had withdrawn the case from the further jurisdiction of the District Court. We have ascertained from the return made and the •briefs filed and arguments made that the acts referred to.took place in the interval between the issuing of the preliminary injunction and the trial of the case on its merits, and that the claim made on the part of relator is not that the granting of a suspensive appeal had •any bearing in the case, but that he relied upon his being able to establish his charge that the law on which the injunction was based was unconstitutional, and that in view of such unconstitutionality he was justified in violating the injunction pending litigation touching that question.

In support of this position he relies upon State ex. rel. Llversey, 34 An. 741.

We do not propose to enter into any extended discussion of the circumstances under which parties would be justified in disregarding the injunctions of courts. It suffices to say that they must be very exceptional in character and that persons so taking the law into their own hands do so at their peril. One material difference between the Liversey case and this one is that in the former this court was of opinion that the act enjoined was one which it was beyond the power of the court to restrain, while in the case at bar we have recently decided that the act prohibited was one which was subject to legal regulation and had come under legal regulation by an express special law. Under this state of facts the District Oourt had full authority to rule relator into court for contempt and to deal with the case as its facts justified. The correctness of its conclusions on that subject are not before us in the present proceeding.

For the reasons herein assigned it is hereby ordered, adjudged ■and decreed that the orders which have been granted by this court herein be and the same are hereby set aside and relator’s application be and the same is hereby denied.


author: Nicholas, C. J. Nicholls, O. J.

text:
    No. 12,275.
    Succession of Pablo Sala.
    í. The parties designated by Act No. 130 o£ 189i as those to be charged under its provisions with a succession or inheritance tax are foreign heirs and legatees,

      2.,The words personal goods In tlie first clause .of Art. SI of the treaty, entered Into on the 27ih of October, 1795, and proclaimed on tlie 2d of August, 1798, between the United States and Spain, refer to and cover movable property only. Real estate or immovable property i's referred to and dealt with in the treaty only in its third clause.
    3. The only action taken by the two governments in respect to real estate, or^ ' immovable property, was to deal with and provide for the consequences of the special case, where foreigners in either eountry should be prohibited from inheriting immovable property. The effect of this limited action is to leave Act No. 130 of 1891 (unless unconstitutional) operative upon immovable property as against foreign heirs and legatees, except to the extent that it is eon- ¡ i trolled and limited under the third clause of the treaty, under the condition of affairs therein specially anticipated and provided for.

      4. Act No. 130 of lb9f is an act raising revenue and appropriating money, and ' should, under Art. 35 of the Constitution, have originated in the House Of .. Representatives. Having originated in the Senate it is decreed unconstitutional.
    5. There is nothing in the language of Act No. 130 of 1891 making the payment of a succession or inheritance tax by foreigners a condition precedent to a right of inheritance. Ths law permits the foreigner to inherit, but, having inherited, , charges him with the tax. Succession of Pargoud, 13 An. 367; Succession of Rabusse, 19 An. 1105.
    ON APPEAL from the Civil District Court for the Parish of . Orleans. King, J.

    ■ Branch K. Miller for Charity Hospital of New Orleans, Plaintiff and Appellant.
    ' " Henry Denis for Foreign Legatee, Defendant and Appellee.
    Argued and submitted February 2, 1897.
    Opinion handed down March 15, 1897.
    Rehearing granted June 19, 1897.
    Argued and submitted on rehearing February 25, 1898.
    Opinion handed down March 21, 1898.
   The opinion of the court was delivered by

Nicholas, C. J.

Pablo Sala, a resident of the parish of Orleans, died in said parish on the 25'th of October, 1894, leaving a last will and testament in which he^ appointed George. W.. Nott his testamentary, executor, and, in and, by. which be, constitute^ ; as, .bis, universal legatee bis sister,. Dona .Maria Sala, y. Fabrigas,. residi.ng,.in.jLlo.ret. de Mar in Spain. Inventories were taken of the succession from which it appeared that the deceased leftjln the State real estate and also movable property and credits. ' Nott qualified as executor. . >

In April, 1895, the Oharity Hospital at New Orleans brought suit in which it prayed that there be judgment in its favor, condemning the executor, Nott, to pay over and deliver to the treasurer of the Oharity Hospital the sum of twelve thousand five hundred dollars, or such sum as might be equal to ten per cent', upon all sums, or the value of all property which might fall to or become due to said Maria Sala, universal legatee of Pablo Sala.

' The demand was based upon the provisions of Act No. 130 of 1894 and upon the allegations that in this succession there fell to the universal legatee, Maria Sala, under and and by virtue of the last will and testament of the deceased, property and assets amounting to, at least, one hundred and twenty thonsand dollars after all the debts of the succession bad been paid or discharged. That George W. Nott was the executor of the deceased and was in charge of and had the administration of the succession property belonging to or falling to the universal legatee. That said legatee resided out of the State of Louisiana and was not a citizen of any other State or Territory of the United States, but a citizen or subject of the kingdom of Spain. That it was the duty of the executor to retain in his hands the tax for the benefit of the Oharity Hospital of ten per cent., for which, under the provisions of said Act No. 130, the said legatee was liable, and to pay the same to the ti’easurer of the Oharity Hospital.

The act referred to is entitled “An act to amend and re-enact Arts. 1221, 1222 and 1223 of the Civil Code relative to the tax due by foreign heirs, legatees and donees, repealed by Act No. 86, approved April 20, 1877.”

It reads as follows:

“ Be it enacted by the General Assembly of the State of Louisiana, That Arts. 1221, 1222 and 1223 of the Revised Civil Code relative to the tax due by foreign heirs, legatees and donees, repealed by Act No. 86 of 1877, Extra Session, be amended and re- enacted so as to read:
“Art. 1221. Each and every person not being domiciliated in this State, and not being a citizen of -any State or Territory-in thé Union,.who shall be ■ entitled - whether as heir, legatee or donee to the whole or.'any part of-the succession of a person'- deceased, whether'such person shall have died in this State or elsewhere, shall pay a tax for the benefit of the Charity Hospital in New Orleans of ten per cent, on all sums on the value of all property which he may have actually received from said succession, or so much thereof as is situated in this State, after deducting all debts; when the inheritance, donation or legacy consists of specific property, and the same has not been sold, the appraisement thereof in the inventory shall be considered as the value thereof.
“Art. 1222. Every executor, curator, tutor or administrator having the charge or administration of succession property belonging in whole or in p'art to a person residing out of the State and not being a citizen of any other State or Territory, shall be bound to retain in his hands the amount of the tax imposed and to pay over the same to the treasurer of said hospital, in default whereof every such executor, curator, tutor or administrator and. his securities shall be liable for the amount thereof.
“Art. 1223. It shall be the special- duty of clerks of court to see that the tax imposed by the preceding section be collected and paid over; and each of such clerks shall be bound to furnish the auditor and the treasurer of said hospital once in a year a statement or list of the successions opened in his parish whereof persons who are neither residents of this State nor citizens of any other State or Territory in the United States are heirs, legatees or donees, in whole or in part, and of the amount accruing to such persons, and any clerk failiug to furnish such statement or to comply with the provisions of the law relative to vacant successions shall be responsible to the State for the amount due.”

Before plaintiff’s petition was put at issue Dona Maria y Pabrigas was, by decree of the District Court, recognized as the universal legatee of the deceased and put in possession as such.

This decree was rendered with the consent of the Board of Administrators of the Charity Hospital, under an agreement entered into between the board and the legatee, that in order to secure the Charity Hospital in case final judgment should be rendered in favor of the plaintiff on the present demand, a certain plantation; known as the Zeringue plantation, should not be sold by the legatee. Dona Maria Sala y Pabrigas (Maria Sala) having been placed in possession, answered plaintiff’s petition. Having first pleaded the general issue she admitted that she was the universal legatee of Pablo Sala, and that she was a subject aud citizen of the kingdom of Spain, but further answering she averred that she was not liable for the tax claimed, that the provisions of Act No. 130 of 189Q were inoperative and of no effect as to her for the reason that she is protected against the said law by the treaty of Spain with the United States of America, entered into of the 27th of October, 1795, notified on the 25th of April, 1796 and proclaimed on the 2d of August, 1796, which treaty was still in force and operation. That the inhabitants of the State of Louisiana are not subject to pay any dues, taxes or imposts of any kind upon successions, legacies, or donations to which they are, or may be, entitled, and that no such dues, _ taxes or imposts are imposed or levied upon them as such heirs, legatees or donees, and therefore she, under the treaty, was not liable to a tax. That Act. No. 130 of 1894 was in violation of Art. 35 of the Constitution.

The portion of the treaty relied on is its eleventh article, which is as follows:

Article XI.

“ The citizens and subjects of each party shall have power to dispose of their personal goods within the jurisdiction of the other by testament, donation or otherwise, and their representatives being sujects of the other party shall succeed to their said personal goods, whether by testament or ab intestato, and they may take possession thereof, either by themselves or others acting for them, and dispose of the same at their will, paying such dues only as the inhabitants of the country wherein the said goods are, shall be subject to pay in like eases.

“ And in ease of the absence of the representative, such care shall be taken of the said goods as would be taken of the goods of a native in like case until the lawful owner may take measures for receiving them.

“ And if questions shall arise among several claimants to which of them the said goods belong, the same shall be decided finally by the laws and judges of the land wherein the said goods are. And where on the death of any person holding real estate within the territories of the one party, such real estate would by the laws of the land descend on a citizen or subject of the other were he not disqualified by being an alien such subjects shall be allowed a reasonable time to sell the same and to withdraw the proceeds without molestation, and exempt from'all rights of detraction on.the part of the government of the respective States.”

The District Court rendered judgment in favor of the defendant, rejecting the claim of the Charity Hospital, and it appealed.

The position of the plaintiff is thus stated in the syllabus of the brief filed in their behalf:

“ Article XI of the Treaty of 1795 between the United States and the kingdom of Spain guarantees to the citizens or subjects of the contracting parties acquiring property by testament, donation or inheritance, situated in the territory of the other, specific rights as to movable and immovable property so acquired; the rights as to each class of property are different and distinct fiom the other; as to movables, the only guarantee given is that the citizens or subjects of the one shall pay no dues or charges not imposed upon the citizens or subjects of the other situated in'like circumstances (and a portion of our citizens are liable to this tax) ; that as to immovables, the only right conferred is that where the laws of the State in which the property is situated prohibit an alien from acquiring real estate, such alien shall have a reasonable time to dispose of his legacy or inheritance and to remove the proceeds without molestation.
• “ As under the laws of this State a Spaniard- may acquire real estate by a title either gratuitous or onerous, the case contemplated by the treaty can not arise.”

' Plaintiff maintains that it is the duty of the court to enforce the law in every respect in which its provisions are-not squarely covered by the treaty; that a portion of our own citizens are liable to pay this tax. Defendant urges that the words “ personal goods” in the treaty do not mean “ personal property” in the sense of the common law of England and the United States, or movables in the sense of the civil law. That it is evident that the expression “personal goods” is synonymous with the Spanish term “ bienes person-ales,” which, like the Breach word “biens personéis,” signifies “ property personal to the party,”, whether it be ■ movable or immovable, and ineludes'both. That personal or movable property in Spanish would be “ bienes meubles; * * * that as the article of the Spanish treaty saving the succession property of the citizens of both countries from taxation is the same verbatim as the article of the Italian treaty,:the decision in the Rixner succession (48 An. 552):.should,dispose .of the present..case.” ....

She- pleads- the uneonstitutionality of- Act No. 180 of 1894-should the plea be necessary to protect her rights. We think that the two governments in stipulating that “ heirs, legatees and donees-should pay such dues only as the inhabitants of the country'wherein the said- goods are shall be subject to pay in like cases,” intended-' tó giv'é to the very flexible word “inhabitants” as broad a signification as-would be needed to insure to the citizens of each country the full protection which it was the obvious intention of both the' contracting parties to secure. Were it true (although the tax imposed by the act of 1894 is referred to in the title of the act as a tax due by “foreign heirs, legatees and donees”),- that the General Assembly had in view the imposition of a succession tax upon citizens of Louisiana living away from the State, we would not be justified in holding that that fact would bring • the defendant under the provisions of that act. Upon that hypothesis only an extremely small and exceptional fraction of the people of Louisiana would be brought under the operation of the statute, and we would see no parallelism in our imposing a tax on citizens absent from this State and imposing, one on Spanish heirs or legatees absent from Louisiana. It was suggested on one occasion by a judge of this court.that a similar statute (subsequently repealed) was enacted partially with a view of striking a blow at absenteeism, then prevailing to a great exteut, but if such was really the motive it would be difficult to find a ground on which we could predicate an intention on the part of either country to extend the provisions of such a qaasi-peaal statute so as to make it cover citizens of the other residing-at their own home. To extend a statute imposing a succession tax upon heirs or legatees citizens, of Louisiana who reside abroad to Spanish heirs- or legatees, living in their own country, would be to take out of the treaty most of its life, leaving its benefits almost nominal. We would not feel warranted in giving to the treaty the narrow scope contended for, leading, as it would,- to results evidently not contemplated. We are of the opinion .that the object of the treaty was tosecure the citizens or subjects .of-each from being discriminated against under the laws of the other for or on aaceoünt of their alienship. This object would -' be entirely thwarted if the Spanish heirs- and legatees living in Spain coúld-be -successfully discriminated: against by being - made' to .fall uhde-r vhe han ¡b'f-'Státüte discrimination,. either aotuálly or apparently aimed at what would be (if so aimed) only exceptionally and at a very small proportion of the people of the State. Most Spanish heirs and legatees would be in that precise situation. We would hold that Spanish heirs and legatees under the treaty were entitled to share in the-benefits accorded generally to the people of the State. We do not think, however, that the statute of 1894 was aimed at any portion of our people. The title of the act, as we have already noticed, discloses that its provisions were directed against aliens, for the tax is therein referred to as one due by “ foreign ” heirs, legatees and donoes. The first section of the statute, which is that which imposes-the tax, designates as the parties to be taxed persons not domiciliated in the State and not citizens of any State or Territory in the Union. This designation of the parties to be charged with the tax is not broadened by any subsequent section of the statute — the first section controls the act throughout. For a double reason we think . that plaintiff’s demand against defendant, in so far as it is based upon the movable assets of the succession, is not well founded.

We are next to consider what the situation is in respect to the tax claimed upon the immovables of the estate. The treaty deals directly and expressly eo nomine with immovables only in respect to the legal results which would be made to flow under the laws of either country, should foreigners be prohibited from owning real estate. It concedes, the existence of a continuing power and authority in the two governments to control and regulate the disposition of immovable property within their respective borders — a power of control which governments have much more jealously and tenaciously adhered to- and insisted upon than they have upon a similar control over movables. Oivil Code, Arts. 9 and 10. In view of that continuing power and with reference to a possible exercise of the same by either country in its harshest and broadest discrimination against foreigners through an obsolete prohibition of their owning immovable property the two governments stipulated that should this reserved power be so brought to bear by either upon aliens the citizens of the other should be none the less protected in their substantial rights of ownership in respect to the same. The property was to be made to enure to the benefit of the foreign heir by being converted into money and the money so obtained was to be received and held free from all charges against it by the government. The immovable was .to be considered practically for the purpose of ultimate ^benefit to the Spanish heir as if it had been a movable from the opening of the succession. By relation back and for that purpose it was to be dealt with as a movable.

Plaintiff’s position is that the effect of the failure of the two governments in express terms to take any action in the treaty in reference to immovable property other than the special action just mentioned, is to leave the law of 1894, except under that special condition of affairs, operative against foreign heirs and legatees in-all other respects as to that species of property, unless the law itself be unconstitutional. We are therefore called on to see whether we-are authorized to give to the words “ personal goods” found in the first paragraph of the eleventh article of the treaty the meaning attributed to them by the defendant and make them' cover immovable property. The treaty appears to have been drawn up in English. Whether there was or was not a' Spanish duplicate of the same we do not know. If there was a duplicate we have not been informed what words appear therein as those corresponding to the terms we are now considering. Defendant concedes that as English words they convey an idea opposed to that for which she is contending. The right of disposal in connection with the words “ personal goods” in the first paragraph of the article is there referred to as-an absolute one, not one which was in contemplation of parties, susceptible of being withdrawn by either, while the language employed in dealing with the special case of aliens who might be prohibited from inheriting real estate does not, though found in the-same article, present the case by way of proviso or exception to-what had already gone before, but as an independent proposition on an independent subject not connected with the rights which had. already been therein fixed and provided for.

We are of the opinion that the words “personal goods” in the-first clause of Art. XI of the treaty were intended to cover and do-refer to and cover movable property exclusively, and that immovable property or real estate is referred to and dealt with in the> •treaty only in its third clause.

We are further of the opinion that the only a'etion taken by the-two governments in respect to immovable property was to deal withi and provide for the consequences of the special case where foreign~ ers in either country should have been prohibited from inheriting-real estate, and that the effect of this limited action is to leave the; •act of 1894 (unless unconstitutional) operative upon immovable •property as against foreign heirs and legatees, except to the exient' ■that it is controlled and limited under the third clause of the treaty •under the condition of affairs therein specially anticipated and provided for.

The view which we take of the treaty forces upon us an examination of the constitutionality of Act No. 130 of 1894. The statute is attacked as being in conflict with Art. 35 of the Constitution, which requires' that all bills for raising a revenue and appropriating money to originate in the House of Representatives. It is conceded that the act originated in the Senate. Plaintiff denies that the act is one raising •revenues, or appropriating money, It claims that the statute is a legal limitation upon the right of inheritance; that it simply affixes •as a necessary condition for the existence of a capacity to receive by •succession the payment of a certain sum; that the claimant can not urge the rightand, atthesame time, repudiate the condition on which it was granted; that the money ordered to be paid is that of the individuals who pay it and not funds of the State, and therefore there can be no “appropriation” made in the sense that term is •employed in Art. 35 of the Constitution; that the House of Repré-' ■sentatives is designated as the body to originate bills for revenue •upon the theory that the citizens of th'e different parishes are Specially concerned in the imposition of taxes, as it is from them and their proporty that they are to be taken, and the members of the lower house are considered more directly the representatives of the taxpayers than are members of the Senate — that these money's aré to be drawn from aliens, and the people of the State have nó interest or concern in the question whether they should be made pay, and if so, bow much the amount should be.

’ We see nothing in the language of the statute making the payment •of the tax a condition precedent to a right of inheritance. The law permits the foreigner to inherit, but, having so inherited, charges him with the payment of the tax. The property and property rights of the foreigner found within the Státe are subject to taxation as is other property." C. C. 9. Its ownership is immaterial. The fact ¡that a succession right accrues to foreign heirs or legatees, and the funds to arise therefrom are liable to be immediately transferred' to '.a foreign country, furnishes no good ór suffieiept legal reason why, ¡■While in the'State, they or their owners should not be'taxedlike other persons, or other property therein. The legislation is proper revenue legislation.

The beneficiary of the fund to be raised from foreign heirs, legatees and donees under the act of 1894 — the Charity Hospital — is a public institution of the State — one sustained almost exclusively by State appropriations, authorized to be made on its behalf under Art. 204 of the Constitution. All moneys reaching its administrators under the act would reach it as having been derived really irom the State, lightening, to that extent, the necessity of State direct aid. Neither the mere form or process by which and through which the funds would be transmitted to the institution, nor the limited number of persons to be affected by the legislation, would change the character of the contribution or alter the real source from which they came. In our opinion the act is one intended to raise a revenue by a tax on property rights in the State, and one in reality appropriating the revenue to be'derived therefrom to one of the public institutions of the State. That legislation of the character of that contained in the act of 1894 has been considered in the light of legislation concerning taxation will appear from an examination of the revenue acts of 1848 and 1850.

. For the reasons herein assigned it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed.

Mr. Justice Watkins concurs in the decree and that part of the .opinion which relates to the unconstitutionality of the legislative act.

Mr. Justice Miller concurs in the decree.

On Application eor Rehearing.

Nicholls, O. J.

Upon the argument on the rehearingof this case, Counsel of the appellee presses upon us very earnestly that we have given to the words “ personal goods ” in the treaty too,restricted-a ■meaning. He directs our attention to the French text of a number of treaties entered into between the United States and different governmentsin which the words “personal property'.' (bienspersonéis)'ave ■used in place of “personal goods," and he insists that the words “ personal property” therein were employed simply to characterize property as belonging personally to the subjects of the one or the other country, and not as descriptive of movable property and. as. contra-distinguished from immovable property or real estate. • An 'examination of. .'the French texts ref erred: to shows that. the words “personal property” have been ordinarily used in treaties of a character closely resembling that of the Spanish treaty wc are now considering instead of the words “ personal goods,” but we can not reach the same conclusions from that fact that counsel does. Under the view taken by counsel, the word “personal” could be dropped out entirely as “ surplusage," the intentions of the treaty-making powers being fully made known without it. We do not think that that word was either inadvertently or unadvisedly inserted. In the French treaty of 1853 “personal property ” is brought sharply into mention and contrasted with immovable property as being a distinct class from it.

Article XI of that treaty declares that—

“In all the States of the Union whose existing laws permit it, so long and to the same extent as the said laws shall remain in force, Frenchmen shall enjoy the right of possessing personal and realproperty by the same title and in the same ihanner as the citizens of the United States * * *. As to the States of the Union by whose existing laws aliens are not permitted to hold real estate, the President engages to recommend to them the passage of such laws as may be necessary for the purpose of conferring this right.

We think that the language adopted in these various treaties was so adopted by reason of a recognition by the different powers of the right of the others to control the ownership of immovable property within their respective territories and to leave them free to take such action in respect thereto as to them might be deemed right, except in so far as was made the subject matter of specific stipulation in the treaties themselves. This specific stipulation generally extends no further than to guarantee in favor of the subjects of the contracting parties, who would be called to the inheritance of real estate in the territory of the other, but for the fact of .alienage, not the actual ownership of such property but the practical benefits of ownership by permitting them to sell the property, or to have the same sold for their benefit without restriction or “ detraction.”

; By this stipulation, the unwillingness or policy of either of the contracting parties to permit aliens to own real estate within their borders would be respected, without, however, carrying the effect of -such- policy- any further than was actually necessary for its own enforcement.

Subject to the single restriction provided for, the State was left in full possession of the right recognized in Mager vs. Grima, 8 Howard, 494, and Frederickson vs. State, 23 Howard, 445. In the former case, the Supreme Court of the United States said: “Every State or nation may unquestionabiy refuse to allow an alien to take either real or personal property situated within its limits either as heir or legatee, and may, if it thinks proper, direct that property so descending or bequeathed shall belong to the State. In many of the States of the Union at this day, real property devised to an alien is liable to escheat. And if a State may deny the privilege altogether, it follows that when it grants it, it may annex to the grant any conditions which it supposes to be required by its interests or policy. This has been done by Louisiana. The right to take is given subject to a deduction of ten per cent, for the use of the State.” *

The State of Louisiana has not made the right of Spanish subjects to inherit real estate Within her territory conditioned or contingent-upon the payment of ten per cent, upon the value of said real property for the use of the State. It has, however, enacted a law that Spanish subjects so inheriting shall pay a tax. We find nothing in the treaty prohibiting the State in the matter of real estate from passing such a statute. In our opinion, the treaty stipulations do not reach that branch of the case. It is argued that reaching such a conclusion would lead up to incongruous results. It is said that it ■can scarcely be reconciled with logic that in a State where hostility to aliens is so great, that they are prohibited from taking real estate toy inheritance, the foreigner would be able to get under the treaty the full benefit of the inheritance, while in a State showing a much more liberal spirit toward aliens and permitting them freely to inherit, they should find themselves confronted with a payment of tax of ten per cent.

The legal privilege of a continuing ownership in the foreigner after inheritance of the property inherited is left out of view in this statement, but whether the results reached be incongruous or illogical or not, we are not able to control them. We are called on to declare non-effective, a statute of the State by reason of alleged treaty obligations, and an examination of the treaty has brought us to the conclusion that the particular obstacle set up in bar of the enforcement of the law can not stand. This conclusion forces us back into a ■consideration of the law from the standpoint of its constitutionality «under the Constitution of the State on the ground discussed and disposed of in our original opinion.

A re-examination of the question has not brought us to a conelu sion. different from that which we have already reached and expressed; - The history of the statute shows it to have been enacted as a revenue measure as its principal motive and object. We see no reason to suppose that there has been a change of policy on the part of the people of the State in dealing with the’,[rightj[of aliens to inherit real estate. The right of foreigners to inherit real estate in this State has not been made to be conditioned or contingent upon the payment of a tax, as we recently declared in the Succession of Rabasse. Spanish subjects living in Spain inherit freely from persons dying in Louisiana owning real estate. They have the right to accept unconditionally ihe successions falling to them, and should .they (having done so) sell the real estate inherited to third parties, the rights of the vendees quoad the title of the property sold would be proof against any attack made against it that the vendor’s right was conditional or contingent. Succession of Pargoud, 13 An. 367.

We find a great difference between this statute and one under which moneys are to be received only incidentally and subsidiarily as a result or consequence of a main object had in view by the statuté (other than the raising of revenue), even though the moneys so received should be directed by the statute when received to be applied to State purpoees.

We are of the opinion that the judgment heretofore rendered by us should remain undisturbed, and it is so ordered and decreed. . i

Justice Watkins concurs in the decree on the ground that the .Louisiana statute is unconstitutional.


author: Nicholls, O. J. Miller, J.

text:
    No. 12,232.
    State of Louisiana vs. B. R. Forman.
    An ordinance o£ the City Council declaring a penalty for non-compliance with an order given by an officer of the Board of Health to repair any vault found ■ leaky, which fails to cast upon any particular person or persons the duty of making the repairs, is too vague and uncertain to be made the basis of a penal or criminal action. . ,
    ON APPEAL from the First Recorder’s Court of the City of New Orleans. Finnegan, J. >

      B. B. Howard for the Board of Health, Plaintiff and Appellee. ' a.

      -. Benjamin Bice Forman, Defendant and Appellant, in propria persona.

    Argued and submitted December 17, 1896.
    Opinion handed down February 21, 1898.
   The opinion of the court was delivered by

Nicholls, O. J.

On the 21st of July, 1896, one J. McCormack, an ■officer of the State Board of Health, made an affidavit before the-recorder of the First Recorder’s Court of New Orleans to the effect, “That on the 21st day of July, 1896, at about 9:30 o’clock A. M., at-819 Camp street, between Jnlia and St. Joseph streets, in this district and city, one B. R. Forman did then and there violate Ordinance No. 6022, Sec. 17, relative to repairing of privy vaults, all against the-.peace and dignity of the State.

•' Wherefore deponent charges the accused with vioiating Ordinance 6023, “ Sec. 17, and prays that he be arrested and dealt with according to law.”

The defendant appeared pleading that the city ordinance under which the charge was made was illegal and unconstitutional, null and void: (1) Because the city had no right to delegate arbitrary power to the Board of Health officers, and no power to compel defendant to advance money for another, or work for, or upon the-property of another, and to do so would deprive him of his money and property without process of law.

He later on pleaded that no ordinance had been passed requiring defendant to repair any privy vault, and if any such ordinance-should be produced he denied that the property in question belonged' ■to him, or that he had any interest therein, or that he had any money in hand belonging to the owner at the time of the alleged notice; that any ordinance which mighc propose to compel defendant •to do any work upon the property of another, or to advance any money for repairing the property of another, would be in violation of ;tbe Constitution of the State and of the United States taking property ■away him from without due process of law.

■ After hearing, the recorder “ fined the defendant ten dollars or fifteen days.”

Defendant appealed.

In the Supreme Court defendant assigned for error apparent on "the face of the record: 1. That an officer of the Board of Health had no power to institute a prosecution in the name of the State of Louisiana, for the alleged violation of an ordinance of the city of New Orleans. 2. The charge was void for uncertainty, as it did-not charge any act or omission to do any act in violation of any valid ordinance of the city oi New Orleans. • 3. No ordinance of the city •of New Orleans was offered in evidence, so the defendant might be informed of the nature and cause of the accusation against him. 4. If the court would take judicial notice of the alleged Ordinance. 6022, Secs. 17 and 35, then the ordinance was void for uncertainty; it did not say who might be ordered to empty, repair or rebuild a vault; it illegally delegates a power of government to another body or officer — the city of New Orleans itself, exercising delegated powers, could not delegate those powers to another. 5. While the city of New Orleans has the power, under Sec. 7 of Act 20 of 1882, and Act 41 of 1890, to provide that any owner, tenant or occupant of any premises must keep the privy vaults clean and in repair; and that if on being notified by an inspector of the Board of Health, in writing, specifying the cleaning or the repairs necessary, such owner, tenant or occupant should fail to clean, repair or rebuild such vault in the manner directed in a time to be fixed in the ordinance, he should be fined and imprisoned, no such ordinance had been passed, and defendant denied that the eity of New Orleans had the power to delegate to the Board of Health, or its officers, who should or might be ordered to empty or to repair or rebuild a privy vault, and it had no power to compel an agent or attorney of the •owner, who had no funds of the owner of the premises in his hands to advance the money out of his own pocket to repair or rebuild a vault, and any such action would deprive such agent or his attorney •of his property without the process of law in violation of Art. 6 of the Oonstitution.

6. On the facts disclosed in the record no violation of any city ■ordinance was shown.

7. For these and divers other illegalities apparent on the face of the record, the judgment and sentence of the recorder, that the •defendant pay a fine of ten dollars or imprisoned twenty days was illegal, and defendant prayed it be reversed and defendant discharged, and that he have judgment against the city of New Orleans, or the Board of Health, or J. McOormack, as the court should adjudge, for costs.

Opinion.

The ordinance under which appellant was convicted reads as follows :

“ Sec. 17. Whenever any privy vault shall be found defective or leaky, the Board of Health through its proper officer may order the same to be emptied and repaired or rebuilt.
“ Sec. 35. The penalty for any violation of any section or portion of this ordinance, shall be a fine not exceeding twenty-five dollars recoverable before the recorder of the district, wherein the offence was committed, or in default of payment of the fine, imprisonment not exceeding thirty days for each and every offence.”

We have to accept as true that the vault of the premises referred to in the evidence was defective or leaky — that the Board of Health had ordered defendant to repair the same, and that he had failed, and neglected to do so, inasmuch as those facts have been so found by the recorder, and we can not go behind his finding. We have to examine the rights and obligations of parties from this standpoint.

Under our limited appellate jurisdiction in matters of this character, several of the questions presented by appellant can not be reached.

If the city ordinance had on its face designated the mode and manner of its execution, and that method had been illegal or unconstitutional, that fact, being part of the ordinance, would be properly examinable by us; but where it is silent on this subject, and the illegality of the method of enforcement arises not from the ordinance, but from the error of the parties entrusted with its execution, relief must be sought by certiorari or prohibition, ■or both — not by appeal. Had appellant sought relief in that form he would have presented a very strong case, as the ordinance complained of authorizes a penal, not a criminal action, and it should have been brought in the name of the city of New Orleans. We say this much, as it may prevent useless future litigation on that subject.

Appellant contends that the evidence establishes that he is an attorney at law, and his functions as agent aré confined to receiving rents, and that as such he can not constitutionally be ordered to advance moneys of his own for the use and benefit of the owners of the property. The evidence shows that the property in question was occupied by third parties under a lease executed by appellant as agent of the owners. We are not prepared to say that the acceptance of an agency requiring for its proper performance an outlay of money should not, by the very fact of such acceptance, carry with it the duty and obligation on the part of the agent of making necessary outlays for that purpose, not only as between his principal and himself, but as between himself and the public authorities when such duty has been imposed by law.

By Seo. 3 of Act No. 85 of 1882, the Legislature has expressly charged parties who collect the rents of property with the obligation of furnishing such premises with adequate means of water supply, but though ordering the inspection by officers of the Board of Health of private premises for the purposes of insuring their cleanliness and healthfulnes, it has not imposed affirmatively any duty in. respect thereto upon agents of owners.

The General Assembly has, by Sec. 7 of Act 20 of 1882, delegated to the Common Council the power to pass an ordinance upon that subject, but we are not advised of any other ordinance than the one-which is herein complained of.

That ordinance declares a penalty for non-compliance with an order given to repair any vault found leaky given by an officer of the Board of Health, but it nowhere casts, by ordinance, upon any particular person or persons the duty of making such repairs.

Ordinances regulating this subject, which do not on their face-affirmatively impose the duty and specify the parties charged therewith, are, in our opinion, too vague and uncertain to be made the basis of a penal or criminal action based upon the ordinances. The ordinance, in our opinion, is illegal.

We are of the opinion that the judgment appealed from is not sustainable. Eor the reasons assigned :

It is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and the suit dismissed.

Miller, J.

I concur in the decree.

Mr. Justice Blanchard takes no part, not having been a member of the court when the case was argued and submitted.