text:
    No. 11,375.

    The State ex rel. O. Billon, District Attorney, vs. A. L. Bourgeois, Sheriff.
    1 Acts denounced by Art. 196 o£ the Constitution in a prior term of office, by any officer who is bis own successor, may form the foundation for a suit for removal from office, under Art. 201 of the Constitution.

      Acts committed by an officer in no way connected with his official condu.et can. not form the foundation for a suit under Art. 201 of the Constitution.
    APPEAL from the Twentieth District Court, Parish of St. James. Guión, J.

      Oscar Billon, District Attorney, and F. O. Zacharie for the Re lator and Appellant.

      Sims & Boché for the Respondent and Appellee.
   The opinion of the court was delivered by

McEnery, J.

This suit was instituted in the name of the State of Louisiana, by the district attorney of the parish of St. James, on the relation of certain resident citizens and tax-payers of said parish, under the provisions of Art. 201 of the Constitution and Act No. 135 of 1880, to remove the defendant from his office as sheriff of the parish of St. James, to which he was elected in April, 1892, and was duly qualified the following July. The grounds for his removal are set forth in eleven specifications in the plaintiff’s petition, charging certain acts of malfeasance, non-feasance, etc., some of which are alleged to have been committed by him during a previous term of office as sheriff and others during his present term.

The defendant filed exceptions to the petition, which exceptions the District Court sustained as to the first, second, third, fourth and ninth specifications, and to that extent dismissed the petition, and as to the other specifications the court overruled the exceptions. From that part of the judgment sustaining said exceptions the plaintiff and relators have appealed.

The specifications to which the exceptions of the defendant were sustained are as follows:

1. That said Adam Livain Bourgeois, being then sheriff of the parish of St. James and having been ordered under a writ of fieri facias, issued on the 29th day of January, 1891, in the suit of J. B. C. Graugnard vs. Lucius Forsyth, No. 1500 of the docket of the Twenty-second Judicial District Court, to seize and sell for cash certain property, to-wit: Pike’s Peak plantation, situated within the parish of St. James, and the appurtenances thereto, for cash, did fail to sell the same for cash, as ordered, and was thereby guilty of non-feasance and misfeasance in office.

2. That thereupon and thereafter the said Adam Livain Bourgeois, as sheriff in the above entitled cause, did, on the 8th day of April, 1891, make a false return on said writ, in which return he certified that he had sold the property hereinabove described for cash, which was paid to him by the purchaser, when in truth and in fact no cash was demanded or received from the purchaser, but said sale was fraudulent and said return false and fraudulent, and the said sheriff thereby was'guilty of misfeasance, corruption and gross misconduct in office.

3. That said Adam Livain Bourgeois, sheriff as aforesaid, did, on the 17th day of March, 1891, execute a deed to the purchaser at said sale, which deed he filed in said suit June 26, 1891, and specified therein that he had received in payment of the price of said sale and adjudication a certain amount of money in cash as payment, when in truth and in fact no cash was received or paid unto him, the said sheriff, by the purchaser or other person, and said deed was false and fraudulent, and said sheriff thereby was guilty of misfeasance, corruption and gross misconduct in office.

4. That on the 26th of June, 1891, said cause being on trial on a rule to distribute the proceeds of the sale aforesaid, said Adam Livain Bourgeois, sheriff as aforesaid, being called as a witness and being duly sworn, did depose under oath that he had in his possession a certain portion of the proceeds of said sale in cash, when in fact and in truth said testimony was false and untrue, and said sheriff did not then have in his hands or possession the funds as falsely testified to by him, and said sheriff was thereby guilty of perjury, misfeasance and gross misconduct in office.

9. That one David Smith, a resident of the parish of St. James, was on the 2d. day of July, 1891, informed against by the then district attorney of the parish of St. James, on four distinct informations, viz.: Attempt to commit rape, carrying concealed weapons, entering plantation, and assault with dangerous weapon, and four bench warrants were issued by the Twenty-second Judicial District Court for his arrest and detention, and delivered to the sheriff for execution on same day or thereabouts; that said Adam Livain Bourgeois, sheriff aforesaid, failed to execute said warrants up to this time, although said Smith resided and continued to reside at a point one mile from the said court house, pursuing his usual avocation, and could have been readily apprehended up to January 1, 1892, at which time said Smith became a fugitive from justice on a capital charge, wherefore petitioners charge said Adam Livain Bourgeois, sheriff aforesaid, with non-feasance and gross misconduct in office.

To the petition of plaintiff and relators the defendant presented and filed the following exceptions:

1. That the allegations contained in the first, second, third, fourth ninth, tenth and eleventh grounds or specifications of said petition do not set forth any cause of action against this exceptor.

2. That the allegations contained in the first, second, third, fourth and ninth grounds or specifications of said petition do not disclose any cause of action or right of action in the plaintiff and relators herein, because the offences therein specifically charged against this exceptor are expressly averred to have been committed prior to the date of his induction into the office of sheriff of said parish pursuant to his election to said office, on the 19th of April, 1892.

3. That the allegations contained in the tenth and eleventh grounds or specifications of said petition are vague, uncertain and indefinite as to time, place and circumstances, and wholly insufficient to enable him to make a defence thereto or to put him on his defence.

4. That this court is absolutely without jurisdiction ratione materiee of the matters and charge set forth in said first, second, third, fourth and ninth grounds or specifications of said petition, because this exceptor was elected to the office of sheriff of the parish of St. James, and ex-officio tax collector thereof, at the last election, held on the 19th of April, 1892, and thereafter duly qualified and was inducted into said office, and the offences charged against exceptor in the said specifications of said petition are averred to have been committed at a time anterior to exceptor’s said induction into office and his present term of office.

The allegations in first, second, third and ninth specifications are sufficiently definite and explicit. It was not essential for relators to aver a negative therein. It is very true the matters contained in said specifications are subject to explanation, as the parties to the suit could have consented to the acts of the sheriff. But this is a matter of defence on the trial of the case. The specifications charge that said acts were misfeasance, non-feasance in office, and that he made false return on his writ, and that said acts were gross miseonduct and corruption in office; These averments negative the fact that these acts were done under the direction and by the consent of .plaintiff in exception.

■ The fourth specification can not be sustained, as the act charged was not .done in'any official capacity. He was sworn as a witness in the case, and his oath was not. an official act. The facts sworn to were shown by his return, which-in another specification is alleged to be false and fraudulent. State vs. Kellam, 4 La. 495.

- Specifications first, second, third and ninth are of official acts, alleged to be misfeasances, committed before the defendant sheriff was inducted into office, after his election to a'second term, on 19th April, 1&92. These fall under the second and fourth grounds of defendant’s exceptions.

The defendant sheriff has been uninterruptedly in office since the commission of the acts complained of.

There was by his re-election no interruption in'his official tenure. At no time was there an interregnum. He was by the Oonstitution to continue in office until his successor was elected and qualified. He was his own successor, the identical officer in both terms against .whom charges are preferred.

The intention of Art. 201 of the Oonstitution is to remove from .office an incumbent who has been guilty of any of the offences mentioned in Art. 196 of the Oonstitution, while he is in office.

It is immaterial therefore whether they were committed during his present or immediate proceeding term of office. His inability to hold the office results from the commission of said offences, and at ■once renders him unfit to continue in office. The fact that he had ■been re-elected does not condone and purge the offence.

The sheriff was elected in pursuance of the provisions of the Constitution declaring what acts committed by him should be sufficient for his removal. This Constitution was made by the people in their ■sovereign capacity, and .by electing an officer they can not modify . its provisions.

, In the election of defendant no question was submitted by which .-Arts. 196 and 201 were changed.

Neither of these articles specify in what time a suit to remove an .officer shall be instituted, whether in one term or another.

Nor do they specify any limitation as to the offence.

We must therefore conclude that the articles were intended to remove an unworthy officer, while in office, irrespective of the fact whether the act complained of was committed daring his first or a subsequent term.

But we are not without authorities and precedents on this point. The learned counsel of defendant urge, however, that a suit under Art. 201 of the Constitution can not be assimilated to proceedings by impeachment.

The effect of the conviction may be different, but the laws applicable to the commission of the offence are the same.

The great weight of authority is that an officer may be impeached while in office for acts committed in a prior term. Trial of Judge Barnard, Court of Impeachment, New York; trial of Judge John Mc-Gunn, Court of Impeachment, New York; trial of Judge Prindle, Court of Impeachment, New York.

And in a late case, State vs. Hill, N. W. Rep., Yol. 55, p. 794, Supreme Court of Nebraska, it is stated in the opinion of the court that the ruling in the case of Judge Barnard during his second term for acts committed in his first term of office has been followed in the case of Judge Hubble, of Wisconsin, and on the trial of Governor Butler, of Nebraska. In this case the Supreme Court of Nebraska says, in its opinion:

There was good reason for overruling the plea to the jurisdiction in the three cases just mentioned. Each respondent was a civil officer at the time he was impeached, and had been such uninterruptedly since the alleged misdemeanors in office were committed.
“ The fact that the offence occurred in the previous term is immaterial. The object of the impeachment is to remove acorrupt or unworthy officer. If his term has expired and he is no longer in office that object is obtained and the reason for his impeachment no longer exists, but if the offender is still an officer he is amenable to impeachment although the acts charged were committed in his previous term of the same office.”

We concur in these reasons.

This court intimated in State ex rel. Attorney General vs. Cheevers, 32 An. 946, that it entertained the same views as expressed above.

It is therefore ordered, adjudged and 'decreed that the judgment appealed' from be amended so as to reverse the decree sustaining exceptions as to specifications first, second, third and ninth, and in other respects it be affirmed, appellees to pay costs of appeal, and case remanded to be proceeded with in due course of-law.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 11,341.
    The State of Louisiana vs. Nick Williams.
    The accused pleaded not guilty when he was arraigned.
    Subsequently he substituted the plea of guilty of a minor offence, to that charged.
    The plea was accepted by the State, and the case called at the time for trial was, in consequence, not submitted to a jury.
    More than ten months had elapsed from the date of his arraignment to that on which he applied to substitute the plea of not guilty to the plea of guilty.
    The motion to withdraw the plea was 'not timely made, during the session, and granting the motion would have operated a continuance.
    The court states that the accused was represented by able and experienced counsel during the trial, and that the plea of guilty was not unadvisedly entered.
    The court in proper cases will freely exercise its'discretion by allowing the plea of guilty to be withdrawn, and not guilty pleaded in its place, but such a discretion will rarely, if ever, be exercised in aid of an attempt to rely upon a mere dilatory or formal defence.
    APPEAL from the Eleventh District Oourt, Parish of St. Landry. Perrault, J.

      M. J. Cunningham, Attorney General, and E. B. Dubuisson, District Attorney, for the State, Appellee.

      John N. Ogden for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

An indictment was found against the defendant on November 15, 1892, under Sec. 791 of the Revised Statutes, charging him with stabbing and striking with intent to kill and murder one Henry Johnson.

On the 16th day of November, 1892, he interposed a motion to quash the indictment, which was overruled.

On November 25, 1892, he was arraigned and pleaded not guilty. The case was assigned to be tried on that day.

It was, subsequently, reassigned on several days.

On the 20th day of September, 1893, the plea of guilty of a lesser offence than that charged was entered.

On the 2d day of October a motion to withdraw the plea of guilty was filed.

. The case comes up for review on the bill of exception taken to th,e court’s ruling,-overruling the rpotion to withdraw {¡he plea of guilty.

The court’s reasons, as stated in the bill, are: that the accused was represented by counsel able and experienced, wish knowledge of the facts and circumstances, who defended him during the trial; that the plea of guilty of an offence less in degree than that charged was made and entered more than ten months after the arraignment of the defendant, and at a time when the case was called for trial and nothing to prevent the trial had the plea of guilty not been presented and accepted by the district attorney.

The trial judge further states that the motion was too late, as it would, had it been granted, have necessarily operated a continuance of the case.

The withdrawal of the plea of guilty should not be denied in any case where it is in the least evident that the ends of justice will be subserved by permitting not guilty to be pleaded in its place.

It is proper to grant the withdrawal if the accused makes it appear that an error has been committed.

The least surprise or influence causing him to plead guilty when he had any defence at all should be sufficient cause to permit a change of the plea from guilty to not guilty.

The records and the statement of the trial judge do not disclose that there was any good ground to gr'ant the application.

The plea presented and overruled prior to arraignment, the time that had elapsed since the arraignment, and the late day in the session the motion to withdraw the plea of guilty was filed, preclude the possibility of concluding that the accused has been prejudiced by the ruling of the lower court.

The discretion in refusing to allow the withdrawal of a plea and substituting another will rarely, if ever, be exercised in aid of an attempt to rely upon a mere dilatory or formal defence.” Bishop on Criminal Jurisprudence, 3d Ed., Sec. 124.

The offence to which he pleaded guilty was a minor offence to that charged; that fact also, supports the statement of the trial judge that all the facts and circumstances show that the plea was offered advisedly.

In the case of State vs. Delahoussaye, 37 An. 552, nineteen days had elapsed since the arraignment; the jury had been discharged; the relief asked would have caused a continuance; the court sustained the ruling of the trial judge in refusing the withdrawal and permitting another plea.

Egan and Husband'vs. Hart et als.

In the case at bar-there are grounds even more conclusive upon which to sustain the judge’s action.

-The discretion was soundly exercised, and his ruling was legal.

Judgment affirmed.


author: Parlange, J.

text:
    No. 11,376.
    Mrs. Lillian W. Egan and Husband vs. A. Hart et als.
    1. The State having located a public levee and awarded to a contractor the work of constructing it, the fact that third persons have bound themselves to the contractor to supplement the contract price by subscriptions of -money does ‘ not impair the public character of the work.
    2. Act 74 of 1892 creating the Caddo Levee District does not impair the power of the Governor, under Act 33 of 1879, to contract for public levees in said district to be paid for with moneys in the general engineer fund.
    3. The Board of State Engineers has the power to close Bayou Pierre by a dam, which is part of the public levee system of the State. The upperpart of Bayou Pierre is not navigable; besides, that stream is wholly within the State and the authority of the Legislature over it is complete.
    4. The act of Congress admitting Louisiana into the Union does not forbid the Legislature from closing by a dam such a stream as Bayou Pierre.
    5. The State, in locating its public levees, acts in the exercise of its police powers, and private injury resulting therefrom is damnum absque injuria.

    APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      J. O. Egan and F. G. Thatcher for Plaintiffs and Appellants.

      Land & Land for Defendants and Appellees.

      J. B. Land, District Attorney, for the State of Louisiana, Intervenor and Appellee.
   The opinion of the court was delivered by

Parlange, J.

This is an injunction suit to restrain the construction of a dam across Bayou Pierre.

Plaintiff owns a plantation in Caddo parish, known as Grigsby’s Island, and which is bounded on one side by Red river and on the other sides by bayous or streams connecting with Red river. Bayou Pierre bounds her plantation in the rear. She complains that A. Hart, and H. B. Richardson, pretending to act as chief engineer of the Board of State Engineers, and F. M. Kerr, pretending to act as engineer of said board, have combined and conspired to build a dam across Bayou Pierre at a distance of about one mile and a half from ' Red river, and of about a quarter of a mile from the lowest point of - her land. She alleges that the defendants have announced their intention to close Bayou Pierre, and have actually begun the work necessary to carry out their purpose. She alleges that the defend- • ant Hart was employed almost wholly by private persons to do said work. That the necessary funds were supplied by interested private parties who, for their own selfish interests and from no public motive, have entered into the combination to dam said bayou. That any pre- ■ tended contract between Hart and the State is a mere pretext or subterfuge and was intended as a cloak to cover their illegal acts, and-with the hope to shield themselves from the legal consequences of' their wrongful acts. She avers specially that, if the acts of defendants are claimed to be done by virtue of any contract with the State - or its officials, and in accordance with law, the Board of Engineers has no power to close such a natural outlet as Bayou Pierre is, and she says that since the passage of Act 74 of 1892 the Board of Engineers is without power to advertise for bids and to let contracts for building public levees in Oaddo parish and for closing Bayou Pierre; but that said power is lodged exclusively in the Board of Commissioners of the Oaddo Levee District, and that, if the Board of Engineers has let a contract for closing Bayou Pierre since the passage of Act 74 of 1892, it has done so without authority from the district commissioners. That, if the authority is claimed under See. 18 of Act 74 of 1892, said section is unconstitutional.

Plaintiff avers that the effect of closing Bayou Pierre will be to increase the volume of water in Red river, thereby rendering her lands more liable to overflow and requiring her to add to her own levees already built. That she will be compelled to surround her plantation with high levees, costly to maintain and which would leave her plantation as a basin in which rain and seepage water would stand. She - alleges damages to the amount of $6000, of which $1000 are claimed for attorneys’ fees and $5000 for the depreciation in the rental and selling values of her plantation and the disturbance of her tenants and laborers. She prays for the damages claimed and for the removal of the dam.

By an amended petition, plaintiff avers that Bayon Pierre is a navigable stream, and that the State has no power to close it.

The State intervened and alleges that the work enjoined is a part of its public levee system. That the Board of State Engineers, in the discharge of its duties, recommended the closing of Bayou Pierre and the continuation of a public levee from the hills north of and across Bayou Pierre to the Dixie plantation, a distance of two miles and three-quarters, in order to protect the adjacent country from overflow, and as a basis of a system of levees to be built as rapidly as possible; that bids for said public work were advertised for according to law; that the bid of the defendant Hart was duly accepted, and a contract was made with him by the Governor; and that Hart gave bond and security for the faithful performance of the work; that the contract price is payable out of the general engineer fund, over which the District Board of Commissioners has no control, and that the Board of State Engineers has the power, under the laws of the State, and especially under Act 60 of 1886, to determine in what part of Caddo parish its pro rata of said fund should be expended; that said Board of Engineers has the exclusive power of locating all levees in the Caddo Levee District, and of determining what outlets shall be closed or opened; that such power was not abridged by Act 74 of 1892, but, on the contrary, was made exclusive by Sec. 18 of said act; that said act makes it the duty of said Caddo District Levee Board to provide the means to carry out the recommendations of said Board of Engineers by taxation, but that these means are intended to be in aid of the general engineer fund.

The injunction was dissolved on bond.

Defendants answered, making substantially the same averments as the State.

After trial'the district judge dissolved the injunction and dismissed the suit, condemning plaintiff to pay the defendant Hart $850 as damages, of which $250 are for attorneys’ fees.

.Plaintiff has appealed, and the defendant Hart, in his answer to the appeal, prays that the attorneys’ fees be increased to $1000.

Plaintiff’s allegations that the closing of Bayou Pierre is the result of a combination and conspiracy for private interests are clearly and abundantly disproved by the record. The work complained of is a public work undertaken, in accordance with law, by the agents of the State, the State Engineers. It is a part of the public levee systern of the State. It was being carried on by the State Engineers in the performance of the duties imposed upon them by law. The work was surveyed; it was reported and recommended to the Governor. The Governor advertised for proposals to do the work. The contract was awarded to Hart, and was signed by the Governor and by Hart. The latter gave security for the performance of the work. In is clear that no possible damage |could have resulted to plaintiff from the mode in which Hart obtained the contract, and that if she. has suffered any injury it was not because of the mode of awarding the contract but because of the acts done under the same.

This is not a case in which a requirement of law provided in the ' interest of a person has not been observed.

The fact that private persons bound themselves to the contractor, Hart to supplement by subscriptions of money the price which he was to receive from the State affects in no manner the public character of the work. These were obligations of third parties to Hart. They did not and could not affect in the least the control of the State over the work, nor change, nor impair the public nature of the undertaking. The State was the beneficiary of these private subscriptions, as doubtless they contributed to enable Hart to undertake the building of nearly three miles of levees for the low price set out in his contract with the State. But the work itself remained absolutely a public work.

Speaking of the nature of the work the district judge says:

“ It is a public work, planned and Ideated by State authority, and is a part of a system of levees ordered by the State for the prevention of overflows. It is the initial point of a line of levees, the propriety, location and construction of which have been determined by the State, acting through the State Board of Engineers, its accredited and duly authorized agents. It begins on the highlands on the west bank of the bayou and extends thence across the bayou to Hart’s Island, and from there to Dixie plantation on Red river.”

The United States Government has contributed $4000 — a sum equal to the price of Hart’s contract with the State — toward the cost of construction of the line of levees, of which the dam in question is a part. Manifestly the claim that such a work, undertaken by the State with the aid of the general government, is the work of private persons for private and selfish motives is absolutely without foundation.

Plaintiff contends, as stated, that since the passage of Act 74 of 1892, which created the Caddo Levee District, the right and power to advertise and contract for levees in Caddo parish are exclusively vested jn the District Board of Commissioners. This position is untenable. There is no authority to support it. The Constitution makes it the imperative duty of the General Assembly to maintain a levee system in the State. Art. 214 of the Constitution provides that the General Assembly may divide the State into levee districts, and provide for the appointment or election of levee commissioners,, who shall, in the mode and manner to be provided by law, have supervision of the erection, repairs and maintenance of the levees in the district, and to that effect they may levy a limited tax on the taxable property within the district. It is clear that the creation of' levee districts is left to the discretion of the General Assembly. It-is equally clear that the method and manner in which the commissioners when created are to have supervision of the levees within the district are also left to the discretion of the General Assembly. Peart vs. Levee District, 45 An. 422.

A levee district is one of the instrumentalities which the General Assembly may use in performing its duty of maintaining a levee system in the State. The Constitution does not provide, either expressly or by implication, that when a levee district is created, the-General Assembly shall be powerless to employ any other instrumentality than that of the levee district within its limits.

The general engineer fund, created by Act 33 of 1879, has been frequently and fully recognized by the General Assembly since the-adoption of the present Constitution. Under Act 33 of 1879 the power of the Governor is clear to contiact for building levees with moneys in the general engineer fund.

Equally clear is the power of the Board of State Engineers, acting-within their official scope and duty, to cause to be closed the bayou across which the dam in question was being constructed at the time this suit originated. It is a necessary incident of their powers and-duties under said Act 33 of 1879. The action of the General Assembly would have been futile indeed if, with full knowledge of the-topography of the State, it had charged the State Engineers with the great duty of protecting the alluvial part of the State from overflows, but had withheld from them the power to build levees across bayous and sloughs. Act 78 of 1886 assumes as a matter of course that the Board of State Engineers has-the power, and said act provides certain requisites to be observed in constructing levees across bayous and sloughs. But in the instant case, it any doubt could have existed as to the power, Sec. 18 of Act 74 of 1892 creating the Oaddo Levee District would have removed it, by providing that the State Engineers are authorized “ to survey and locate, repair or remove or change any and all levees in the district and are specially authorized to cause to be closed by levees, dikes or otherwise, such outlets, bayous, or sloughs, or to open the same, as in their judgment may be necessary to carry out the object of this act, and are solely charged with the responsibility of the location of all levees in said district.” This section violates no provision of the Constitution.

As to plaintiff’s' contention that Bayou Pierre is a navigable stream, we have carefully considered the voluminous testimony on that part of the case and’ we are clear that the upper part of Bayou Pierre, in which the dam in questien is situated, is not navigable, and that the navigation of even the' lower part of Bayou Pierre, a considerable distance below the dam, is attended with many obstacles and difficulties. On this point the district judge says: “ Prom Grand Ecore where it (Bayou Pierre) enters Red river, to a point some miles below its junction with Tone’s Bayou — a stream flowing out of the river — Bayou Pierre has been frequently navigated by steamboats. But from the point of junction to the dam in question, it has never been navigated and is unnavigable. Between these two points it is nothing but a high water outlet, going dry every summer at many places, choked with rafts and filled with sand, reefs, etc. It has no channel; in various localities it spreads out into shallow lakes and over a wide expanse of country and is susceptible of being made navigable just as a ditch could be if it were dug deep and wide enough and kept supplied with a sufficiency of water.’’ We fully concur in this finding. Besides, Bayou Pierre is wholly within the State, and the authority of the Legislature over it is complete. Hamilton vs. R. R. Co., 34 An. 975; Boykin vs. Shaffer, 13 An. 129.

There is no force in plaintiff’s contention that the act of Congress admitting Louisiana into- the Union forbids the General Assembly from closing by a dam such a stream as Bayou Pierre. Boykin vs. Shaffer, 13 An. 129; Hamilton vs. R. R., 119 U. S. 285; Williamette Iron Bridge Co. vs. Hatch, 125 U. S. 1.

In Peart vs. Levee District, quoted above, and in the cases therein cited, this court has said that in locating and building her public levees the State acts in the exercise of the police power “ and that private injury resulting from the legitimate exercise of this legal right is damnum absque injuria, to which the individual must submit as a sacrifice to the public safety and welfare.” The doctrine ap plies to the instant case.

Plaintiff’s plantation is an island surrounded by levees, except where the banks are sufficiently high without them. There is evidence strongly indicating that her plantation is by nature in the shape of a basin, the land sloping on all sides to the centre. However this may be, it seems clear that the condition of her property, even before the building of the dam, must have been highly unfavorable to drainage. Whether the effect of the dam at a distance of a quarter of a mile from her property will be to seriously damage it, is in a great measure conjectural. She has neither alleged nor shown any interest in the navigability of Bayou Pierre. However, whether she has suffered damage or not, she is not entitled to the relief she prays for.

The appellee Hart prays for an increase of the damages awarded, but we see no reason to disturb the finding of the district judge.

Judgment affirmed at plaintiff’s costs.

Rehearing refused.


author: Nicholls, C. J. MoEnery, J.

text:
    No. 11,281.
    Mrs. M. V. DeLesdernier vs. H. J. DeLesdernier, Her Husband.
    When a husband appeals from a judgment rendered against him in favor of his wife for a separation from bed and board, and for $1600 for paraphernal funds belonging to her, converted to his own use, the wife is not entitled to have the appeal dismissed quoad the moneyed judgment as being below the constitutional jurisdiction of the Supreme Court.
    A separation from bed and board carries with it a separation of property. A moneyed demand accompanying an action for such separation is an incident of the main action, and becomes inseparably connected with it as so brought. Repeated acts of drunkenness, followed by occasional spells of sobriety and moderate drinking, with the habit of drinking so fixed that temptation to drink can not be resisted, will constitute habitual drunkenness within the meaning of Art. 128 of the Civil Code. And if it is of such nature as to render the living together oí the spouses insupportable, the complaining party is entitled to a decree of separation from bed and board.

      Notes given by the husband to the wile for her paraphernal funds used by him are-admissible to prove the indebtedness of the husband to the wife.
    The husband is bound to support the marriage charges, and the wife can only be called to contribute one-half of the income of herparaphernal effects, of which she retains the administration.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      K. Rivers Richardson for Plaintiff and Appellee.
    Defendant in propria persona.

   On Motion to Dismiss

The opinion of the court was delivered by

Nicholls, C. J.

The plaintiff sued the defendant for a separation from bed and board, and for a moneyed judgment for the sum of' $1610 for paraphernal funds of hers which her husband had received and converted to his own separate use and benefit.

The district judge rendered judgment in her favor in conformity to the prayer of the petition.

The defendant appealed, and the plaintiff has filed in this court a. motion to dismiss the appeal in so far as it concerns the moneyed judgment on the ground that it is below our constitutional jurisdiction as to amount.

Separation from bed and board carries with it separation of goods and effects. C. O. 155.

When the plaintiff suing for a separation from bed and board asked for a separation of property and for judgment for moneys received by the defendant during the marriage belonging to her and converted by him the action was an entirety, the demand and prayer for aseparation of property and for a moneyed judgment for a specific amount being merely an incident of the suit, with which it is now inseparably connected.

As matters stand the action is of the nature of a mixed action, where the principal demand carries its incidental demand along with it, as does, for instance, a petitory action, when it is accompanied by a demand for fruits and revenues. ■

There is no analogy between this case and that of Favrot vs. Baton Rouge, 38 An. 230.

In that case we dismissed no appeal, but limited our inquiries on appeal to the single issue which the Constitution directed us to consider in such matters. The whole case was before us on a single special issue. When we disposed of that our duty under the Constitution ended.

In the case at bar there is a case before us properly and legally within our jurisdiction on a main demand with an incidental demand properly attached to it by appellee — both having been decided by the district judge in one and the same judgment, and incapable of being separated from each other on appeal.

The motion for the dismissal is not well taken and the application is denied.

On the Merits.

MoEnery, J.

The plaintiff instituted suit for separation from bed and board from her husband, alleging as reasons therefor habitual drunkenness, cruel treatment and public defamation of her character on part of the defendant husband.

The defendant’s answer, setting out with exact particularity the dates when he was intoxicated, the duration of the time he was under the influence of liquor, the intervals of entire sobriety and the stated times of the use of liquor in moderation, establishes the fact that, notwithstanding these intermittent periods of sobriety, the defendant was an actual and confirmed inebriate. Mack vs. Handy, 39 An. 493.

The evidence shows that the excesses of defendant were of such character as to render the living together of plaintiff and defendant, as man and wife, insupportable to the wife.

The defendant, on October 12, 1892, filed a suit to have his wife interdicted. Two days after the institution of this suit the present suit was filed. The defendant objects to this suit on the ground that the wife was incapable of acting after the petition for interdiction had been filed. There is no provision of the statute law, nor is there any article of the code which prevents the defendant in proceedings to interdict him, from performing acts, such as bringing suits and making contracts. The validity of these acts depends upon the judgment rendered in the case. C. 0., Art. 401.

This interdiction suit was dismissed on defendant’s failing to give security for costs. In his answer he reiterates the allegations therein made, and on the trial failed to offer any evidence to substanfciate the same. The averments in the petition unquestionably were public defamation of the wife, and alone would entitle her to the decree prayed for. O. 0., Sec. 4, Art. 138.

According to defendant’s answer the wife’s paraphernal effects, in ■cash, amounted to |1900. The husband used the money, and a part of it was for board, which he claims the wife was compelled to pay toward making the marriage charges.

The code provides that if all the property of the wife be paraphernal and she have reserved to herself the administration of it, she ought to bear a proportion of the marriage charges equal if need be to one-half her income. Art. 2389.

There was no revenue from this money. It was on deposit and employed by the husband for his own use and for the expenses of maintenance, which, under Article 120 of the code, he was bound to bear, unless, as provided in Article 2389, the wife administered her paraphernal effects, when one-half the income could be used for marriage charges.

A part of the husband’s indebtedness to his wife was evidenced by promissory notes. These were offered in evidence and admitted as acknowledgments of the debt. The ruling was correct. The wife was not suing on a contract made with the husband during marriage, but was claiming restitution of her paraphernal effects used by the husband, and which he is bound to restore to her on the dissolution of the community.

The husband can acknowledge the debt due his wife. To preserve her legal mortgage or privilege, it is made the duty of the husband under oath, where the evidence is not in writing, to make a statement and record the same of the amount due the wife. C. C. 3349.

His acknowledgment in writing, given at the time the paraphernal effects were used by him, in the form of a promissory note, is therefore admissible evidence to prove the fact of the use of the money of the wife and his indebtedness to her. Burns vs. Thompson, 39 An. 377.

Judgment affirmed.


author: Watkins, J.

text:
    No. 11,291.
    L. Robira vs. New Orleans & Carrollton Railroad Company.
    An ordinance of the city of New Orleans stipulating in the-grant or franchise of a street railway company to be operated on St. Charles avenue, between Canal street and Carrollton, as the termini! of its track, that it may charge to persons residing below Napoleon avenue a double far© from Canal street to Carroll-ton, while permitting persons who reside above Napoleon avenue to travel the whole distance for a single fare, is not subject to attack as an unreasonable discrimination prohibited by the law governing the obligations of common car riers.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Thos. F. Maher and Louis P. Paquet for Plaintiff and Appellant.

      John M. Bonner for Defendant and Appellee..
   The opinion of the court was delivered by

Watkins, J.

This is an action for the. recovery of damages alleged to have been sustained by the plaintiff by being illegally and wrongfully ejected from one of the cars of the defendant, at the intersection of St. Charles and Napoleon avenues, on the 24th of July, 1892.

When the defendant secured its franchise from the city government to run its cars through certain streets, an ordinance was passed which fixed and prescribed the rate of fare to be charged to all persons residing below Napoleon avenue at five cents from Canal street to Napoleon avenue, and five cents additional from Napoleon ave-, nue to Carrollton; while the rate of fare for all persons residing above Napoleon avenue was only five cents from Canal street to Carrollton — the latter being privileged to purchase ten tickets for fifty cents.

As properly describing the tickets which were in use, and the operation of the city ordinance governing the same, we subjoin an extract from the brief of the defendant’s counsel, viz.:

“ In order, therefore, to carry into effect this provision of the ordinance, the company had printed on the same strip of paper ten tickets with corresponding coupons attached, and sold them to actual residents above Napoleon avenue for fifty cents.
“The tickets were numbered from one to ten consecutively, and each blue coupon had printed across its face: Good only to actual residents above Napoleon avenue,’ and on a white strip at the bottom of the ticket was a printed notice that these tickets were to be used only by actual residents above Napoleon avenue — see tickets in' envelope attached to transcript.”

On the occasion referred to, the plaintiff went to the starter’s stand, at the Baronne street end of the defendant company’s line of railway, and purchased a bunch of such tickets as are above described. He then entered one of defendant’s cars, accompanied by his wife and some friends, and paid the fare of the whole party as far as Napoleon avenue, detaching and placing in the fare box four of the red tickets described. However, the plaintiff was duly advised, while the car was on the stand, that he had no right to use those tickets, as he did not live above Napoleon avenue.

When the car reached Napoleon avenue, the collector entered and proceeded to collect the second fare of five cents due from that point to Carrollton, whereupon, being advised that the plaintiff and his party resided below Napoleon avenue, the collector attempted to detach four red tickets, but was prevented from doing so by the plaintiff, who insisted that blue coupons should be detached. This privilege being refused the collector, and the plaintiff declining to give any other than the blue coupons, he and his party were requested to leave the ear, and did leave accordingly.

On this state of facts, the jury who tried the case rendered a verdict in favor of the defendant, and the plaintiff has appealed.

During the progress of the trial the judge charged the jury as follows, viz.:

“ If you find from the evidence before you that the plaintiff lived below Napoleon avenue and obtained by purchase or otherwise, no matter how, if he obtained this bunch of tickets and attempted to use them on the cars of that railroad company, the company had a perfect legal right under the law of Louisiana not only to refuse to take those tickets, but to put him off the cars of the company. I charge you, gentlemen of the jury, further, that the tickets themselves were full notice to him of the contract.”

This charge embodies substantially the defendant’s contract right, as evidenced by the city ordinance, and appears to us to have been strictly correct, and is in keeping with the opinion of this court as expressed in Forman vs. New Orleans & Carrollton Railroad Company, 40 An. 446, in which an almost exactly parallel case is stated.

Indeed, plaintiff’s counsel recognizes the full force and applicability of that decision, if same is to be maintained, and proceeds to particularly anathematize the doctrine therein announced. But we are nevertheless constrained to uphold that decision, after a careful examination of it and the authorities upon which it is predicated, Which are to the effect that the feature of the contract of defendant with the city which is complained of “is not subject to attack as an unreasonable discrimination, prohibited by the law governing the obligations of common carriers.”

The Forman case was but the reannouncement of the principles decided in DeLucas vs. New Orleans & Carrollton Railroad Company, 38 An. 930. Vide Pickles vs. McLellan Dry Dock Company, 38 An. 412; Villavaso vs. Barthet, 39 An. 247.

It is our opinion that the judgment appealed from is correct and should be affirmed.

Judgment affirmed.


author: Watkins, J. Breaux, J.

text:
    No. 11,036.
    Antonio Augusti et al. vs. Widow and Heirs of E. J. Lawless et al.
    An assessment which does not contain a description sufficient to identify the property assessed is illegal and void, and, therefore, beyond the healing power of the curative statute of 188Í — a sufficient description of the property being an indispensable prerequisite to the exercise of the taxing power.
    There arc certain requisites to a valid sale of property by a tax collector which can not be supplied or cured by subsequent legislation.
    The object of a description is to enable the owner to ascertain from the list itself that the tax charged against him has been assessed upon his land and not upon that of a stranger.
    APPEAL from the Civil District Court for the Parish of Orleans. King3 J.

      Robert J. Rugué and W. S. Benedict for Plaintiffs in Injunction and Appellees.

      Wynne Rogers and Bernard Titche and E. Howard McCaleb for De fendants in Injunction and Appellants.
   The opinion of the court was delivered by

Watkins, J.

When this case was last before us it was decided in favor of the defendants, but on the application of the plaintiff a rehearing was granted, and hence it is before us for a second consideration.

The pleadings and substantial facts are sufficiently recited in our opinion — 10 Southern Reporter, p. 171 — and only those that are pertinent to the question on which our opinion must turn require restatement.

In our opinion there was but one of the grounds of nullity of the sale alleged that was considered or dealt with, viz.: the nullity of the assessment, as will appear from the following extract:

“ But among the grounds for the nullity of the sale it is averred that the property was not assessed in the. name of the owner, and the assessment was illegal for want of certainty in the description of the property.”

And the conclusion drawn from the evidence adduced was that “the plan of the property and the deed of the property to the defendants vary so radically from the description that it can not be identified either by numbers or by measurement. There was, in fact, no assessment of the property. This was essential to a valid sale under Act 82 of 1884 * * * There was no irregularity in the assessment which was cured by said act, because there was no assessment of the property.”

It further appears from what was said in the opinion granting a rehearing that it was granted for the specific purpose of obtaining “fuller proof as to the facts concerning the assessment and description of the property;” and such being the terms of our decree our present examination and decree must be limited to those particular issues.

Referring to the plaintiffs’ petition for rehearing we find it is distinctly grounded on the theory that they were completely taken by surprise by the finding of our opinion, to the effect that “as a fact there had been no assessment of the property at all” — they insisting that there was no such an issue in the case, and that the contention was only that there existed certain irregularities in an existing assessment; and for that reason they did not feel called upon to introduce proof of the existence of an assessment, and consequently made no such proof.

The further contention of counsel was that if the charge had been made that there was no assessment, or had the court below ruled on that point, they could have defended themselves by producing the original assessment of the property in dispute — annexing to their motion a certified copy of the Lawless assessment for the year 1878.

Taking this petition in connection with our decree, and the conclusion is clear that the rehearing was granted and the cause remanded for the purpose of enabling the parties to introduce the assessment itself, or any other evidence they might possess in reference to its illegality vel non; and the parties seem to have viewed the remanding in this light, as the only proofs offered on the new trial were certified extracts from-the assessment roll of 1878, including the assessment of Mrs. E. J. Lawless, and a certificate of research, from the office of the tax collector, showing in what manner assessments had been made in previous years. Taking the case in this situation, and we find the facts, in reference to the assessment, to be as follows, viz.: That on the roll of 1878 the property of Mrs. E. J. Lawless was thus assessed:

Name of Taxable Owner. Name of Street. No. of Lot. Measure. Value.

Mrs. E. J. Lawless....................... Canal. 26 22x114

Mrs. E. J. Lawless........................ Canal. 27 41x114 $1600

The certificate of research shows that, by a slightly different description, same has been thus assessed since the year 1869.

• To determine the legality of this assessment, and whether or not it is amenable to the complaint that is made of it in plaintiff’s petition, it will be necessary to make a comparison of it with the de-' scription of the property in the tax title and the deed of Mrs. Lawless, as well as that contained in the advertisement of the tax sale.

The following is the description given of the property in the deed of Mrs. Lawless, which was evidenced by a notarial act, bearing date June 20, 1871, and duly recorded on the day following, and accompanied by an official plan by the city surveyor, viz.:

Two lots of ground, with the improvements thereon, * * situated in the Second District of the city of New Orleans, in the square bounded by Oanal, Customhouse, Rocheblave and Dorgenois streets, designated by the numbers 8 and 9, on a plan drawn by Pecquet & Campos, on the 22d of October, 1864, * * the lots adjoining each other and measuring each as follows: Lot. No. 9 has twenty-seven (27) feet front on Canal street by a depth of one hundred and fourteen (114) feet between parallel lines; and lot No. 8 has forty-one (41) feet and five (5) inches front on Canal street, with nine (9) inches and seven (7) lines in width in the rear, by a depth of one hundred and fourteen (114) feet on the side adjoining lot No. 9, and of one hundred and twenty (120) feet eleven (11) inches and six (6) lines on the other side — (same) running obliquely toward Dorgenois street.”

The tax deed contains this description, viz.:

“ A certain lot of ground, with improvements thereon, situated in the second district of (the city) of New Orleans, in the square bounded by Canal, Customhouse, Rocheblave and Dorgenois streets, designated as lot No. 26, or 7 and 8, in square No. 331, said lot No. 26, or 7 and 8, measuring sixty-eight (68) feet front on Canal street by a depth of one hundred and fourteen (114) feet.”

This description is preceded by an advertisement containing a similar description, while the plaintiff’s petition follows the description contained in the Lawless title.

The striking and important defect that is apparent from a simple inspection of the original assessment that was introduced in evidence on the last trial is the erroneous designation of the property by municipal numbers — the numbers given being 26 and 27, instead of Nos. 8 and 9, as stated in the deed of Mrs. Lawless, the alleged tax debtor. It is quite evident that the description in the tax deed was intended to correct that error because it designates the municipal numbers as 26, or 7 and 8, in the alternative; but it is equally evident that it was unavailing for that purpose for the reason that a tax title must yield to the assessment and not control it. And just here the main and seriously controverted question recurs, How can the property of Mrs. Lawless be identified by the assessment as one and.the same as that which was assessed, or how could the purchasers be put in the possession of her property, as that which had been adjudicated to them under that assessment and sale?

But, even if these questions be answered in the affirmative'— though it is quite certain they can not — the description in the tax deed is insufficient, in terms, to convey more than one lot, because “lot 26, or 7 and 8,” therein described, corresponds with lot 8 of the Lawless title, and entirely omits lot 9 thereof, though erroneously reciting its front measurement to be 68 feet, in lieu of the correct measurement of 41 feet and 5 inches on Canal street; and farther erroneously reciting that it (lot 26, or '7 and 8) had a depth of 114 feet, whereas it has that depth on one side only, and is of only the width of 9 inches and 7 lines in the rear — the lot having the shape of a triangle and not that of a trapezoid.

The conclusion at which we arrived when the case was last under consideration, to the effect that the “assessment was illegal for want of certainty in the description of the property,” and upon which we rested our judgment to the effect that “ there was no assessment of the property,” has been accepted by plaintiffs’ counsel as an issue — the only remaining issue in the case — and the second trial proceeded on that theory. This is attested by their brief, in which they request us to apply the doctrine announced in the Lake and Douglass cases in reference to the description of the property as affecting the validity of the assessment. They say:

“ They are (1) that an exact and literal reproduction of the description of the owner’s deed is not necessary, because a variance or irregularity in the description will not invalidate a sale, as the object and effect of Act 82 of 1884 were to validate tax sales, notwithstanding such variance or irregularity; (2) that whatever the irregularity might be in the words or figures of the description of the property, if it be such that the property can be identified, no complaint regarding the sale could be made on account of the description.” Brief, p. 9.

The paragraph counsel have selected from our opinion in the Douglass case is the following, viz.: “The only complaint is of certain irregularities in the assessment in non-compliance with the requirements of the law under which it was made. The fact remains that an assessment was actually made by a description sufficient to identify the property, and not to mislead the owner, which is all that is required.” (Our italics.) In re Douglass, 41 An. 765.

The accepted test of that decision, as well as of counsel’s admission, seems to be that the assessment must be made by a description sufficient to identify the property and not mislead the owner, and that without such description the assessment is radically null and beyond the healing power of the act of 1884; or, in other words, the complaint of the assessment must not consist in a mere variance or rregularity in description, consisting of words or figures, not affecting the identification of the property.

In treating of this proposition we said in the Douglas case, “ there are certain requirements absolutely essential ,to constitute a valid exercise of the taxing power, without which no tax sale could be validly made ” — stating among the chief indispensable prerequisites the assessment of the property.

Accepting this theory and referring to the map or plan that is contained in the original transcript, and which was doubtless copied from the ODe that is annexed to the deed of Mrs. Lawless, it is evident that there are, in the square designated, no such municipal numbers as 26 and 27, as employed in the assessment of the property of Mrs. E. J. Lawless, for the reason that the square bounded, as it is, by Canal, Customhouse, Rocheblave and Dorgenois streets contains but fourteen (14) lots, having an average front measurement on Canal street of 27 feet each, thus making the entire front measurement 372 feet; whereas, on the theory that there were twenty-seven (27) lots in this square fronting on Canal street, there would be twice that frontage on Canal street.

But this is not the greatest error in the description given in the assessment; it is that the description that is employed in the tax title —even accepting it as curing the error of description in the assessment, for the purpose of the illustration, it being No. 26 or 7 and 8 —when compared with the plan, indicates the property to be about the middle ol the square, whereas, if there were really 27 lots instead of 14, the property would have, necessarily, to be on the corner.

It is thus completely and fully demonstrated that the description employed in the assessment is not only misleading but an impossible one, as under no circumstances could No. 26 be used eonvertibly for Nos. 7 and 8.

The case of Smith vs. City, 43 An. 726, is strictly applicable and not at variance with our opinion in this ease, for the reason that the description which was in that case held to be sufficient gave the names of the streets bounding the square, designating its number, and also gave the correct municipal number of the lot, and the correct front measurement on Julia street, less a few inches.

Had the assessment of the Lawless property been as full and complete it would have been sustained as valid.

Hence our conclusion is that the assessment of the property in dispute as that of Mrs. E. J. Lawless was and is illegal and void, on account of the description of the property being insufficient to identify it — a sufficient description to identify the property and not mislead the owner being an indispensable prerequisite to the exercise of the taxing power.

As it appears to be conceded, that the judgment appealed from was erroneously prepared and signed, as though rendered in favor of the defendants, whereas it was really and actually rendered in favor of the plaintiffs, it should for that reason be reversed, and it is so ordered, and proceeding to render such judgment as should have been rendered in the court below.

It is ordered and decreed that the tax sale under which the plaintiffs jointly claim title to the property in dispute be revoked and annulled ; that the defendants’ injunction be maintained and perpetuated without damages, and that the said defendants be quieted in their possession and enjoyment of the property as owners.

It is finally ordered and decreed that the plaintiffs, Antonio Augusti et al., be taxed with all the costs of both courts.

On'Application for a Rehearing.

Breaux, J.

The property involved in this controversy was bought by plaintiffs at tax sale under the provisions of Art. 82 of 1884.

They sued out a writ of seizure and possession.

In their petition for the writ, and to be placed in possession, the property was described as a certain lot of ground in the Second District of New Orleans, in the square bounded by Canal, Customhouse, Dorgenois and Rocheblave streets, designated as lot No. 26 or 7 and 8, in square 331. Said lot No. 26 or 7 and 8 measures 68 feet front on Canal street by a depth of 114 feet, formerly owned by the estate and heirs of Mrs. E. J. Lawless.

It was bought on 6th May, 1890, for the State taxes of 1878.

The deed of sale contained a recital that the property was assessed n the name of B. J. Lawless, but owned by the estate of Mrs. E. J. Lawless.

It was adjudicated for $5 to plaintiffs.

The advertisement under which the property was sold contains substantially the same description as that in plaintiffs’ petition to be placed in possession.

Mr. Lawless never was the owner of lots designated as 26 or 7 or 8 in the square mentioned.

The street on which it fronts and the correct number were not given; the property was not identified.

The law under which the property was sold can not have the effect of dispensing with all the requirements or forms in matter of tax sales. (■

Confusing advertisements and misleading descriptions of the property are not cured by the operation of the act.

Something must appear of record toward establishing an accurate and pertinent description of the property embraced in the list in order to sustain the validity of the tax deed.

There are requisites to a valid sale of property by a tax collector which can not be supplied by subsequent legislation.

As an additional ground in support of their deed it is argued by plaintiffs that the defendants are estopped; that they have acquiesced in the description of the property on the assessment roll, and are therefore not in a position to contest plaintiffs’ title.

It is a settled principle of the tax laws that minor irregularities may be cured by the party in interest.

This does not embrace a power on the part of a tutor to cure irregularities of moment in the enforcement of tax laws, nor will it enable the tutor by his payments of taxes to estop his wards when the irregularity is of such a character as to affect the power of the officer to sell.

Moreover, it is not shown that subsequent to the assessment of 1878 the tutor paid taxes on property as described in plaintiffs’ tax deed.

Rehearing refused.


author: Nicholls, C. J.

text:
    No. 11,240.
    In re Charles Genella, Praying to Be Put in Possession.
    1. Where the issue between the parties to a suit is not the right of ownership, but the right of possession, and the value of the latter right is as to amount below the appellate jurisdiction of the Supreme Court, an appeal taken to that court will he dismissed exproprio motu.

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

      W. S. Benedict and B,obt. J. Bugué for Defendant in Injunction and Appellant.

      J. Zach. Spearing contra.

   The opinion of the court was delivered by

Nicholls, C. J.

Alleging that on the 25th of October, 1889, he had purchased from C. Harrison Parker, State Tax Collector of the First District of the city of New Orleans, certain property'in that district fully described in the act of sale of the same, passed before Lloyd Posey, notary public; that that property was worth more than two thousand dollars and that he desired to be placed in actual possession thereof, the plaintiff, Charles Genella, obtained an order from the judge of Division “C” of the Civil District Court that a writ of possession issue in his favor as prayed for. The application and order were based upon the provisions of Act No. 80 of 1888.

Before the writ was executed, one Frank A. Grunow filed a petition in which he alleged that he was the legal occupant and possessor for more than one year of a lot of ground in the First District of New Orleans, in square bounded by Melieerte, Magazine, Coliseum and Barthelemy-streets, designated by the letter “B,” in a plan by Joseph Pilie, April 26, 1833, deposited in the office of Felix DeArmas, notary in said city, which lot measures 31 feet 11 inches and two lines front on Coliseum street by 127 feet 10 inches and four lines deep between parallel lines, and which property was purchased by Miss Catherine Neidergang from Mrs. Henry L. Keely by act before H. B. Cenas, late notary, on the 27th of December, 1855,. and registered in the recorder’s office of New Orleans in book 69-, folio 528: that, at the instance of Charles Genella, he has been served in these proceedings with a writ of possession ordering him to vacate said premises; that said Genella claims to have purchased said property from C. H. Parker, tax collector, under Act 80 of 1888, which allegation he specially denies. He avers that said property has never been assessed; that said property was never adjudicated to the State; that said property was never advertised for sale under Act No. 80 of 1888, or under any other act; that the adjudication to Genella was of lot 26 in said square, and that said Genella fraudulently had the description of above described property inserted in-the deed to him, when said property was never advertised; that in the event the foregoing is overruled, and only in that event, and in the alternative, he alleges that in the alleged proceedings to enforce the payment of the alleged taxes for 1880 to 1883 on said property, under which proceedings it is claimed that said property was adjudicated to the State, the law in reference to the advertisement of said property was not complied with and said property was not advertised as required by law, and the State therefore has acquired no title to said property; that Catherine Neidergang was not the owner of said property in 1880 or any subsequent year; that during 1880, or any subsequent year, there was no such person living as Catherine Niedergang or Neindergang, and that all alleged assessments and all advertisments in her name are absolute nullities and bind no one, and all proceedings under said name are absolute nullities.

That by Article 210 of the Constitution the State is forbidden to acquire property for taxes; that the alleged adjudication and sale of said property is nothing more or less than a forfeiture of said property after a mere advertisement thereof; that to constitute a sale there must be a seller and a buyer; that in said alleged adjudication the State appears as the seller, selling or adjudicating the property to itself; that such adjudication is in fact and in law a forfeiture of property, which is prohibited by said Art. 210; that Act 77 of 1880 and Act No. 96 of 1882, in so far as the same provide for the adjudication of property to the State, is null and void, being in conflict with said Article 210, and all proceedings under said acts leading up to the alleged adjudication of property to the State are absolutely null and void. That there is no authority in the Constitution or in the laws passed in pursuance thereof providing for or authorizing a sale or adjudication to the State for taxes; that in the absence of a law authorizing an adjudication to the State the tax collector exceeded his powers in adjudicating said property to the State for taxes; that said property was not advertised the number of times required by nor under the provisions of said Act No. 80 of 1888; that said property was not advertised for thirty days as required by said Act 80 of 1888, and even without being advertised once a week. He further averred that the State is estopped from treating and from selling said property as property belonging to the State for the reason that the State has never assessed said property as State property according to law, but has treated said property as property belonging to individuals and not to the State, and has continued to assess said property from the date of the registry of the alleged sales to the State in the names of parties who claim to be owners thereof, and the State has charged and received taxes on said property under said assessments in the names of individuals for years subsequent to its alleged acquisition of said property.

He further averred that said property was not adjudicated to the State for the amount of the taxes, interests and costs claimed to be due only by said property. He prayed that a writ of injunction issue restraining Genella and the civil sheriff from proceeding under the writ of possession and from interfering with him in the legal ■occupancy of said property; that Genella be cited, and that after due proceedings the injunction be perpetuated and that he (Grunow) be •decreed to be the legal occupant and possessor of said property free from interference on the part of Genella.

A writ of injunction issued as prayed for; Genella filed an answer ■to the injunction, pleading the general issue,-_and further answering said he denied specially that any informalities or illegalities exist in .any of the proceedings under and by virtue of which he acquired title to said property ;jthat it is of a value exceeding $2000; that ■Grunow has been in possession thereof against the will of petitioner (Genella) by reason of his defences by injunction for a period of time exceeding two years; that the monthly rental value of said property was fully $20 a month, making a total of rents due petitioner by said Grunow and his sureties, together with $250 for counsel fees — he prayed that he be decreed the legal owner of the prop■erty and entitled to full possession thereof, with the rents and revenues therefrom, as against the said Grunow and his sureties, in the sum of $20 per month from the 26th October, 1889, until paid, with $250 counsel fees and all costs, and that the injunction be dissolved.

. The case having gone to trial the District Court rendered a judgment in favor of plaintiff in injunction, perpetuating the injunction and recognizing and decreeing Grunow to be the legal occupant and possessor free from all interference on the part of Genella of the .property described in the petition of injunction.

Genella has appealed.

The evidence shows that on the 27th December, 1855, Miss Gath erine Neidergang purchased, by act before Cenas, notary, from Mrs. Sarah E. French, wife of Henry L. Keller, a certain lot of ground with all thebuildings and improvements thereon, situated in the First District of New Orleans, in the square bounded by Melicerte, Magazine, Ooliseum and Barthelemy streets and designated by the letter “ B ” on a certain plan drawn by Joseph Pilie, surveyor, on the 26th day of April, 1833, and deposited in the office of Felix DeArmas, late a notary public in New Orleans, said lot measuring, in English measure, 31 feet 11 inches and 2 lines front on Coliseum street by 127 feet 10 inches and 4 lines in depth between parallel lines.

Miss Catherine Neidergang, subsequently to this purchase, removed to Switzerland, where in 1869 she married at Geneva one Joseph Marie Jacquier. She died in Geneva on the 7th July, 1874, leaving-no descendants nor ascendants. She left a will, which was probated in Geneva, but has never been presented for probate in Louisiana.. In this will she declares that she bequeaths without reserve to her-husband the furniture and in a word all the movable effects without exception and all that she possessed in Geneva. She bequeathed' besides to her husband during his natural life “not only the usufructbut the administration (gestión) or control of all I possess in Louisiana, United States, to distribute it to him or them of my relations whom he will consider the most worthy.”

Whether Mrs. Jacquier left collateral relations or not does not appear with certainty. There is no evidence that the husband has attempted to make a selection among them, if such there be, under the-terms of the will.

The lot in question had been for some time prior to the present litigation, and was at its commencement, in the occupancy of Grunow,. the plaintiff in injunction. It is admitted that he occupied the premises as the tenant of Joseph Jacquier at the rate of $5 per month and that one of the conditions of the lease is that he is not to be dispossessed except on six months’ notice.

The plaintiff Genella claims, as we have seen, that the property in question is worth from $2200 to $2500; that Grunow has been in possession thereof against the will of the plaintiff by reason of his defences by injunction for a period of time exceeding (at the time of the filing of the answer) two years; that the monthly rental value of said property is fully $20, for which Grunow is liable, together with $250' counsel fees. The period for which Grunow holds alease is not shown.

The issue between the parties hereto is not the right of ownership, but that of possession. The question of title- could not be adjudicated upon in this ease. See 15 An. 454, Young vs. Chamberlin, and Prescott vs. Payne, 44 An. 658.

The value of the right of property of a thing is entirely different from the value of the right of possession thereof.

The “matter in dispute” in the controversy before us is as to amount below our appellate jurisdiction. Harris vs. Stockett, 35 An. 387.

It is our duty to notice ex proprio motu want of jurisdiction ratione materice, and to dismiss the appeal. It is therefore ordered that the appeal herein be and the same is hereby dismissed.

Rehearing refused.


author: McEnery, J.

text:
    No. 11,293.
    William Henry Bothick and Mary Jane Bothick vs. Thomas W. Bothick et als.
    Where a man keeps house with a woman whom he calls his wife, introduces her into the community in which he lives as his wife, receives friends and relatives at his house asa married man and he and his wife visit them asman and wife, and he is generally known and respected as a married man and has children who are christened as the offspring of this cohabitation, taking his name and are reasonably looked upon as legitimate children, this cohabitation and relationship is presumptive evidence of marriage when there are no facts and no general or partial reputation in the community to show that the cohabitation is illicit. The abandonment of the reputed wife by the husband when such relationship exists is not proof of illicit cohabitation. His declarations that the children are illegitimate, made after the abandonment, and his last will, in which he ignores the reputed marriage, are not sufficient proof to rebut the presumption of marriage resulting from the oral testimony establishing such presumption.
    A PPEAL from the Civil District Court, Parish of Orleans. Bightor, J.

      J. S. & J. T. Whitaker and Wm. T. Houston for Plaintiffs and Appellees.

      Frank L. Biehardson, James McConnell, James Timony and Henry P. Dart for Defendants and Appellants.
   The opinion of the court was delivered by

McEnery, J.

This suit was instituted for the purpose of establishing the legitimacy of plaintiffs as the children of Thos. W. Bothick, deceased, and of Catherine Connelly, also deceased, the alleged first wife of. Bothick, and for the eventual recovery of their inheritance as the heirs of their deceased parents.

The District Court ruled out all testimony as to community rights and claims so far as it went to establish a money judgment, but permitted it in this connection to show that there was property in this State owned by the deceased Bothick, reserving to plaintiff the right thereafter to assert their claims upon said property, and in the succession of Bothick in the court having jurisdiction of the succession. The case was submitted to a jury and their inquiry was limited to the question of the legitimacy of plaintiffs — whether or not Thos. W. Bothick was married to Catherine Connelly, and whether plaintiff was the issue of that marriage. The jury found a verdict in favor of plaintiffs, and a judgment in their favor was rendered thereon. The defendants appealed.

Pleas to the jurisdiction, res judicata, no cause of action, and estoppel were filed by defendants, each of which was overruled.

The defendants contend that after the exclusion of the money demand there was no amount in dispute to give jurisdiction. This objection is met by the allegation in the petition, and the evidence introduced thereunder to show that Bothick owned considerable property in the city of New Orleans, in which these children, if legitimate, may have an interest. The other pleas could more properly be argued in case plaintiffs pursued property in the hands of third persons, acquired at succession sale. On this point we express no opinion. It is certain that the plea of prescription can not be applied to the issue now pending, and it would be difficult to imagine a case in which the plea of estoppel could be argued to defeat a suit to establish legitimacy. Public policy favors claims of legitimacy, and we have said that where the conduct of the parties has been such as to create the presumption of marriage to the extent that it would yield only to proof, that there was no such marriage, a moral estoppel would intervene and forbid the falsifying of their acts and conduct by the parties. Blasini vs. Blasini, 30 An. 1398.

So far as the estoppel, the failure of plaintiffs to assert their rights in the suit for the settlement of the community in the marriage between Bothick and his second wife, née Cunningham, it will find its proper place with the other pleas in the assertion of rights claimed in that community interest, and on the property sold to settle it. On this point we also express no opinion.

There is no doubt that the plaintiffs are the children of Thomas W. Bothick and Catherine Connelly. Of this fact there is not the remotest circumstance to contradict it.

In the years 1846, 1847, 1848, 1849, Thomas W. Bothick lived in the city of New York, and in Newark, New Jersey. He came to New Orleans about the year¡¡1849 or 1850, and while here married twice, the last wife surviving him.

From the time of his arrival here to the 24th of July, 1874, he lived with Ann J. Cunningham. She was universally recognized as his wife, andwwas undoubtedly married to him. She died in 1874, and afterward_he_married Olivia'J. Bothick,-who survives.

During his residence in New York City and in Newark, New Jersey, he lived with Catherine Connelly as his wife. No proof of an actual marriage exists, and the fact of the marriage rests on oral evidence to establish the presumption of its existence.

The testimony in favor of plaintiffs is sufficient to establish a conclusive presumption of the marriage of Thos. W. Bothick and Catherine Connelly.

They kept house together as man and wife in NewYork City, and Newark, New Jersey. They were known in these communities as man and wife and received friends and relatives as such. In New York they resided near the residence of Catherine Connelly’s brothers, John and James, and visited them as man and wife. These brothers are spoken of as respectable. They are both dead. The testimony may be summed up in the evidence of John Stonier, the nephew of Thomas W. Bothick, who saw his uncle in New York City, in 1841, and subsequently in New Jersey, in 1846, 1847 and 1848. He did not know Catherine Connelly by this name, but knew her as Aunt Bothick.” Bothick and his aunt Bothick lived together as man and wife. He visited them in company with his mother, a sister of Thomas W. Bothick. They were treated and received as man and wife by his mother and his relatives generally, and he never knew anything to the contrary. All the testimony on behalf of plaintiffs is to this effect.

In fact, he was generally known as the husband of Catherine Connelly, and the testimony does not show that this relationship was ever doubted. There is not a fact adduced or a circumstance shown that would indicate that Catherine Connelly was the mistress of Thomas W. Bothick. Their children were baptized with the name of Bothick, and after he abandoned Catherine Connelly, in 1849, or 1850, she was always, in her semi-widowhood, recognized as the wife of Thomas W. Bothick. She was buried as his wife.

The plaintiff, W. H. Bothick, was brought to this city at an early age and taken into Thomas W. Bothick’s family. His daughter, the co-plaintiff, resided in this city also and was introduced into his family as his daughter.

To negative this testimony, the defendants rely upon loose declarations in Bothick’s second household, where W. H. Bothick, in family disturbances, was called a bastard. And on the declarations bf a half sister that his father said he and his sister were illegitimate, but that his mother was a good woman.

And on the last testament of Bothick in which he referred only to his last two marriages, and made provisions for the children in each, ignoring the first set of children altogether. The loose declarations in fits of anger, in evident hostility to the plaintiff, W. H. Bothick, in the second household of his father, are entitled to little weight. And in reference to his reputed declaration of the illegitimacy of his children, to his daughter when on a visit to him, and the nonrecognition of the children in the will, we think that a moral estoppel intervenes in favor of his children to prevent the denial of his acts and conduct. During the residence of the parties in New York and New Jersey they lived in the observance of all the obligations of marriage, and their acts and conduct were not compatible with any other theory than an actual marriage between them. Blasini vs. Blasini, 30 An. 1398.

The defendants rely upon the case of Powers vs. Executor, 35 An. 630. This case is in full accord with Blasini vs. Blasini, 30 An. 1388. In both cases the doctrine is announced that the evidence of cohabitation as man and wife must be general and consistent, not partial and circumscribed, and of such character as to authorize and invite the presumption that they were actually married with all the formalities required to constitute a valid-marriage by the law of the place at which it is reported to have been celebrated.

In the case of Powers vs. Executor it was proved that the reputation of living together as man and wife was negatived by the acts of the parties, by the reputation of concubinage among friends and relatives.

In the case of McConnell vs. New Orleans, 15 An. 410, it was shown that Mary Ann Wall was reported to be the mistress of Pulley.

In the instant case there is, as stated, no-testimony whatever that indicates that Thos. W. Bothick and Catherine Oonnelly occupied any other relation to each other than husband and wife when they cohabited together in New York and New Jersey.

The abandonment of the home by the husband is not sufficient to destroy this presumption, nor are his declarations, even if satisfactorily proved in this case, sufficient for this purpose after the abandonment.

We conclude that the plaintiffs are the legitimate children of Thos. W. Bothick and Catherine Oonnelly.

Judgment affirmed.


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    No. 11,304.
    Mrs. Carmelite Louque vs. Succession of Mrs. B. Saloy and Her Heirs.
    When property is held under conservatory writs on final judgment no damages can be claimed for the detention of the property under the writs.
    When a suit is instituted by an administrator in good faith, without malice and with probable cause for the protection of a succession interest, and the administrator feels no damages can be claimed from the succession by the defendant for expenses incurred in defending the suit.
    APPEAL from the Civil District Court for the Parish of Oz’leans. Rightor, J.

      Chas. Louque for Plaintiff and Appellant.

      Thomas J. Semvies for Defendants and Appellees.
    1. No liability for libel for words pertinent to the issue contained in a petition filed in a suit. 48 An. 455.
    2. No liability for damages resulting from the detention of property under an order of a court of justice. 108 33. O. L. 622, 628; 97 New York, 576.
    .3. In a suit for malicious prosecution, in order to recover there must coexist malice and want of probable cause; if there be no probable cause, yet if the defendant acted under an honest belief there can be no recovery. 9 R. 387; Queen’s Bench R. for 1891, Vol. 2, p. 719; 40 An. 376; 41 An. 511.
    4. There can be no malice when the jury are satisfied defendant acted under honest belief, although he did not make due inquiry. Q. B. for 1891, Vol. 2, p. 719.
    5. The heirs are not liable for the torts of the administrator of a succession or of the attorney for absent heirs, both being public officers; their acts are their own official acts, not those of the heirs or their agents. 104 Mass. 94.

      Drolla & Augustin on the same side.
   Theopinion of the court was delivered by

McEnery, J.

Mrs. Saloy died in the city of NewaOrleans. Her ¡succession was fully administered - and the effects turned over to the heirs. During her last illness she had in her possession, a short time before her death, a box containing money, bonds and jewelry. This box and contents were given to the plaintiff by Mrs. Saloy by manual gift, and she deposited the box in bank. The circumstances attending the gift induced the attorney for absent heirs to institute proceedings for the judicial sequestration of the box. The plaintiff in these proceedings refused to deliver the box and contents, and asserted his ownership and legal possession of the same during the pendency of the conservatory writs provoked by the attorney for absent heirs in a rule taken on him. This rule was dismissed by plaintiff. In the conservatory proceedings instituted by this attorney, the judge ordered a judicial sequestration of the box and contents. From this order the.plaintiff appealed. The judgment of the District Court was affirmed by this courc. Succession Saloy, 43 An. 1158.

After the judicial sequestration of the box and contents, the administrators of the succession filed a suit against the plaintiff in behalf of the succession, for the ownership and possession of the same, on the ground that Mrs. Saloy had never parted with the ownership and possession of the box and contents, and had never made a manual gift of the same to the plaintiff. During the taking of the inventory, it is noted in the process verbal that said box and contents had been given to plaintiff, and the statements of the witnesses in whose presence it was given are set out in said inventory. On the trial of this suit there was judgment for the plaintiff herein, Mrs. Louque, declaring the donation valid and confirming her title to the box and contents. The succession representatives did not appeal from this judgment.

The plaintiff now brings this suit for damages on account of the proceedings instituted by the attorney for absent heirs and the suit instituted against her by the administrator of the succession.

The grounds of complaint are that the suits are libellous and that the inference drawn from the institution of the same was that Mrs. Louque had unlawfully abstracted the box and contents; that she suffered pecuniary loss for attorneys’ fees in defending said suits, and that she lost the opportunity of investing her money by the long detention of said box and contents.

The answer is a general denial. There was a trial by jury and a verdict and judgment in behalf of defendants, from which plaintiff appealed.

1. There is no averment or statement in the petitions filed in the suit of the administrator against plaintiff and in the application of the attorney for absent heirs that can by any possible construction be construed into a libel of plaintiff’s character, nor is there any innuendo that can be inferred from the allegations that would asperse the character of plaintiff. The petition and application ure respectful and are in the usual forms. If the suit for the box and contents created unfavorable impressions against plaintiff it was one of those unfortunate inferences that sometimes follow suits and accompany litigation for which the plaintiff, in the honest pursuit of a right, is not responsible. The plaintiff in this suit was fully vindicated and the alleged unfavorable impressions were dissipated by the judgment in her behalf.

So far as damages are claimed for the institution of the proceedings by rule by the attorney for absent heirs, they are effectually barred by the judgment of this court affirming the judgment of the lower court in the case of the Succession of Saloy, 43 An. 1151.

In fact the issues presented in this suit are mainly disposed of in the opinion rendered by this court in that case.

In the opinion we said: “ Under the terms of the order its only effort was to hold the box where it was until its contents were ascertained, and when the possessor prevented its opening, the box simply remained in the custody of the bank until further orders of the court. The effect in that case would have been simply that of a judicial sequestration, which we think in such a case would have been sufficient under Art. 273 of the Oode of Practice, at least until the succession could be represented by the appointment of an administrator who could invoke the proper conservatory process to protect the interest of the succession.”

The fact of the statement of witnesses to the donation appearing on the inventory did not determine the question of title or possession. It was still open to judicial inquiry and investigation.

That the administrator’s duty was to continue the investigation instituted by the attorney for absent heirs was indicated in that portion of the opinion quoted. And the plaintiff herein also invited the suit instituted by the administrators.

The rule filed by Mrs. Louque, the plaintiff, on the attorney for absent heirs, tendered the issue of title to the box. In this sale the heirs of Saloy intervened and denied the title of Mrs. Louque to the box, and prayed for an order that the box be turned over to the succession of Saloy. She hastily discontinued this rule. There was, therefore, no alternative for the succession representatives but to bring the- action^against which this complaint is made.

They acted in good faith, without malice and with probable cause, in the institution of a suit for the protection of a succession entrusted to this administration.

Judgment affirmed.


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    No. 11,270.
    State ex rel. F. L. Fernandez vs. City of New Orleans.
    It is the poiicy of the law to require of municipal corporations a strict ohservanee of their powers.
    A power can not be exercised where it is not clearly comprehended within the terms of the right sought to have recognized and enforced.
    The judgments of the relator are restricted for payment to specific years. The restriction is part of the judgment, made so in express terms.
    The council was without authority to vary from the terms of the judgment.
    The judgments are restricted, in term, for payment to the years 1880, 1882,1883, 1884, 1885, 1886 and 1889, Mandamus does not lie to compel payment from the revenues of 1893.
    The writ of mandamus does not’.create a new authority.
    Whatever rights the judgment creditor may have, can not be recovered in mandamus proceedings.
    APPEAL from the Oivil District Court for the Parish of Orleans. J.

      Charles Louque for Relator and Appellant.

      E. A. O’Sullivan, City Attorney, and Eoraee L. Ditfour, Assistant City Attorney, for Respondent and Appellee:
    1. Previous to 1879 there was no constitutional limitation of the rate of municipal taxation, and the city could be compelled to levy a tax and budget funds for the payment of judgments.
    2. Since 1879 the rate of municipal taxation is limited, and can not be increased except to secure the obligations of antecedent contracts protected by the Federal'Constitution. 32 An. 709, 884; 36 An. 56; 33 An. 79; 37 An. 18; 31 Fed. Rep. 537.
    3. Courts will not interfere with the legislative discretion of the council in framing the budget of municipal expenses so long as constitutional or legal provisions and limitations are observed. Id.
    4. Misappropriation of revenues or abuse of legislative discretion on the part of the council not having be.en alleged, can not be urged.
    5. Under Act 30, extra session of 1877, intended to chect municipal extravagance, the expenditures of each year can not exceed the revenues for that year, and payment of claims must be made exclusively out of the revenues of the year for which they are due. They do not constitute a debt due by the city, but by a particular fund. United States ex rel. Seigel vs. City, U. S. C. C.; Creole Company vs City, 39 An. 981; Paving Company vs. City, 43 An. 471.
    6. Relator’s judgments are by their terms and by law restricted exclusively for payment to the revenues of 1880,1882,1883, 1884, 1885, 1886 and 1889, and can not under any construction be paid out of the revenues of 1893,
   The opinion of the court was delivered by

Breaux, J.

The relator sues by mandamus to compel the respondent to appropriate and set aside, an amount to pay his judgmerits, amounting to $10,125.01, which were pronounced against the city of New Orleans.

They have been recorded in the office of the city comptroller in accordance with the provisions of Act No. 5 of 1870. The relator alleges that there are no funds to pay these judgments and no provision made in the budget of 1893 to pay them; and that under the provisions of the act of 1870, it is the duty of the council to annually budget for the payment of recorded judgments in the office of the comptroller.

The relator, concluding, prays for an order against the mayor and council of the city of New Orleans to compel them to make provision in the budget of 1893 for the payment of his judgments.

Respondent’s return to the writ, substantially recites that relator’s petition discloses no cause of action.

That the duties sought to be enforced are not ministerial, but involve the exercise of legislative and executive judgment and discretion, not enforceable by means of the writ of mandamus. That estimates and appropriations for the alimony and other expenses of the city of New Orleans are legislative functions with which courts will not interfere, and that in the exercise of these functions the council has appropriated the sum of $2000 for payment of the judgments recorded in the comptroller’s office under the provisions of Act 5 of 1870, as the amount for the purpose, after paying the alimony and other expenses of the municipal government. That the judgments of the relator are restricted exclusively for payment to the resources of the years 1880, 1882, 1883, 1884, 1885 and 1889, and can not be legally budgeted for out of the resources of 1893.

From the judgment rejecting his demand the relator appeals. It is a fact that each judgment contains the order that it shall be paid out of the resources of particular years.

Municipal corporations have such powers as the general laws and their charters expressly confer upon them, and such as are necessary to exercise the power conferred.

Those who contract with them are aware of the limitations of their powers. They contract with reference to existing laws.

The Act of 1877, No. 30, provides:

1. That no police jury of any parish nor any municipal corporation in this State shall make any appropriation of money for any year, which appropriation, separately or together with any other appropriation or appropriations of the same year, shall be in excess of the actual revenue of said parish or municipal corporation of that year.
“ 2. That no police jury of any parish nor municipal corporation in this State shall approve any claim or make any expenditure which shall, separately or together with other claims approved or expendí-, tures made, be in excess of the actual revenue of that year.
3. That the revenues of the several parishes and municipal corporations of this State of each year shall be devoted to the expenditures of that year, provided that any surplus of said revenues may be applied to the payment of the indebtedness of former years.”

The judgments relator seeks to collect are absolute in terms.

The City Charter, Act 20 of 1882, contains limitations and provides that the council shall once in twelve months, before deciding upon the amount of taxes and licenses, cause to be made out a detailed estimate of the various items of liability and expenditure, and after publication adopt it as a budget.

Prior to the act of 1870 judgments were executed against the city of New Orleans by the writ of fieri facias.

That act prohibited such a writ against the city, and substituted another method to enforce payment.

The writ of mandamus is the proper writ to compel the corporation to comply with its obligations., State ex rel. Carondelet Canal vs. Mayer et al., 30 An. 131.

The judgment is the basis upon which the writ issues and must be executed in accordance with its terms.

The legal right recoverable by mandamus is that expressed in the judgment. Judgment orders payment to be made from the revenues of specific years.

No misappropriation or diversion of funds are alleged.

Mandamus will not issue to compel the council to carry the judgment on the budget to be paid from the revenues of another year than that expressed in the judgment.

The court will refuse a mandamus if the right of the party applying therefor is not clear.

Manifestly, the right having been recognized in previous proceedings, can not be affected or changed by mandamus.

The council, in these proceedings, has no discretion on the face of the papers, enabling it to pay from other revenues than those mentioned in the judgment.

The only course left to the council was to conform strictly to the letter of the judgment. They were not authorized to vary from it, being officers with limited powers, acting under special laws.

In thus deciding we do not pass upon the validity of the judgment, or upon any of the rights the relator may have to recover in proceedings other than mandamus.

They remain unaffected, save that in these proceedings we will not grant a writ to pay from funds of a year different from the years specified.

The act must be clearly prescribed and enjoined by law. The duty must be plain and positive. State ex rel. Crawford vs. Mayer, 45 An. 278.

At the last session of the court at Shreveport, in State ex rel. Jones vs. Judge, 45 An., that principle of jurisprudence received further consideration.

The court reaffirmed the principle originally laid down in State ex rel. Pacific Railroad Co. vs. Nicholls, 30 An. 1217, in which the unanimous approval of the court render prominent the answer of the respondents: “We are public officers with limited powers, acting under a special law, not authorized to vary from it, or exercise any discretionary power in the matter.”

In a recent treatise on the subject, Morrillo on Mandamus, Sec. 50, p. 54, the principle is approvingly inserted in his text, and a number of authorities are cited in its support.

The judge of the District Court did not err in refusing the mandamus, and the judgment appealed from is therefore affirmed with costs, reserving to relator whatever rights he may have to exercise in other proceedings.