author: Watkins, J. Fenner, J.

text:
    No. 10,541.
    The State ex rel. Hope & Co. vs. The Board of Liquidation.
    1. When official acts, to be performed by the executive branch of the State government, are divided into ministerial and political, and courts assume the right to enforce the performance of the former, it opens a wide margin for the exercise of judicial power.
    The judge may say what acts are ministerial and what are political. Circumstances may arise and conditions may exist which would require the Governor, in the proper exercise of his duty, and with due regard to the interests of the State, not to perform a plain ministerial act. Is the judge to, arbitrarily, determine his duty in such a case, and by mandamus, seek to coerce its performance?
    2. Whenever, by the Constitution and laws of a State, officers of the executive branch of the government are vested with discretionary powers and functions in theperformancc^of civil duties, or when political powers and responsibilities are devolved upon them, they are «oí amenable to judicial process; in such case their acts are only politically examinable.

      3. When such duties and powers devolve upon the executive department of the State government, as a whole, the members of such a board, collectively, are likewise exempt from judicial control, notwithstanding individual members may be compelled by mandamus to perform “ their ordinary official duties.”
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Henry Denis and Farrar, Jonas & Kruttsehnitt for the Relators, Appellees:
    Although mandamus does not lie to compel the Board of Liquidation to fund the obligations of the State, because said board have some discretion as to funding or not funding, the writ clearly lies to compel the board to‘meet and pass upon the application of a bond holder, by either granting or rejecting the same. High on Mandamus, Secs. 823, 24, 84, 46, 48; Oliver Vs. Board of Liquidation, 40 An. 321; State ex rel. Porstall vs. Same, 29 An. 693; State ex rel. Bank vs. Same, 29 An. 264.

      Walter H. Rogers, Attorney General, for Respondents and Appellants :
    The courts have no jurisdiction over the chief executive of a State or executive department to compel the performance of an official duty. Mississippi vs. Johnson, 71 XT. S. 498; Flournoy vs. City, 17 Ind. 169,174; The State vs. The Governor, 25 N. J. L. 331, commenting on Marbury vs. Madison, 1 Cranch, 137; Low vs. Towns, 8 Ga. 360; In re Dennett, 32 Me. 508; People vs. Bissell, 19 111. 229; People vs. Yates, 40 111. 126; Man ran vs. Smith, 8 ¡R. 1.192; State vs. Governor, 89 Mo. 888; K. R. vs. Governor, 23 Mo. 853; Rice vs. Austin, 19 Minn. 103; Sutherland vs. Governor, 29 Mich. ,320; Turnpike Co. vs. Brown, 8 Bax (Tenn.) 490; Appeal of I-Iartrauft, 85 Pa. 433; State vs. Drew, 17 Fla. 67; People vs. Cullow, 100 111. 472;, State vs. Warmoth, 22 La. An. 1.
   The opinion of the court was delivered by

Watkins, J.

This suit is a supplement to that of same title decided recently and adversely to the relators. 41 An. 585.

The relators seek, by mandamus, to compel the various respondents, as the members of the Board of Liquidation, to assemble, take action on their bonds and decide whether of not they are fundable in consolidated bonds of the State.

The respondents return:

1. That relators’ petition states no cause of action.

2. That the judicial department of the State government has no-power to control their official action, or conduct, or their exercise of official discretion.

3. That they are members of the executive department of the State government, and, as such, designated as members of said Board of Liquidation of the State debt, and that they are not responsible to the judicial department of the State government as to the time when, or the manner in which they shall perform their duties»

4. That the courts are without jurisdiction to compel them to-meet, or to fix a time for their meeting, as the authority to convene the board is executive.

5. That, in their opinion, the present time is inopportune for a meeting of the board.

The judge below made the mandamus peremptory, and in his decree fixed and designated a time within which the respondents should convene and decide whether or not relators’ bonds are fund-able. Prom that judgment the respondents have appealed.

The question is, therefore, whether the courts have jurisdiction and authority over the respondents, as members of the Board of Liquidation, to compel them to meet and take action on the bonds of relators.

The respondent board was created under and by virtue of Act 3 of 1874, which was a legislative enactment, making provision for an examination into and funding of the valid part of the public debt in consolidated bonds of the State.

Sec. 1 of that act provides that for the purpose of consolidating and reducing the floating and bonded debt of the State, the Governor, Lieutenant Governor, Auditor, Treasurer, Secretary of State and Speaker of the House of Representatives, are hereby authorized to' cause ‘to be prepared and to issue bonds, to be known as 1 consolidated bonds of the State of Louisiana,’ * * * to the amount of $15,000,000, or so much thereof as may be necessary,” etc.

See. 2 provides “ that the parties designated in the foregoing section shall constitute a board of liquidation, and a majority of said board shall elect a fiscal agent for the State, who shall be a member of said board.”

Section 3 provides “ that the bonds authorized by Sec. 1 shall be signed by the Governor, Auditor, and Secretary of State, * * * and, when so prepared, said bonds shall be exchanged by the Board: of Liquidation for all valid outstanding bonds of the State, and all valid warrants, drawn previous to the passage of the act, * * at the rate of sixty cents in consolidated bonds for one dollar in outstanding bonds and all valid warrants; provided, that the holder of any bond, or valid warrant, rejected by a majority of said board may apply by petition, to the proper court, for relief, and if final judgment shall be rendered in his favor, against said board, it shall be the duty of said board to fund his claim in bonds, at the rate' provided by this act,” etc.

That this was intended as a scheme for the ascertainment and reduction of the public debt within a prescribed compass will appear by reference to the provisions of Sec. 13 of the act, which are as follows, viz:

That the entire State debt, prior to the year of our Lord 1914 shall never be increased, directly or indirectly, beyond the sum of|15, - 000,000, hereby authorized, it being the intent and object of this act, and of the exchanges to be effected thereunder, to reduce and restrict the whole indebtedness of the State to a sum not exceeding ‡16,000,000, and to agree with the holders of the consolidated bonds to be issued hereunder that said indebtedness shall not be increased beyond said sum during said period. ” (Our Italics).

This act was approved on the 24th of January, 1874, and, at the same time, a constitutional amendment was proposed confirmatory of the scheme, and which declares that the consolidated bonds to be issued under and in pursuance of that act shall be valid and binding contracts of the State, in favor of the holders thereof.

Under the Constitution of the State, in force at the time, as well as under the one now in force, the executive department of the State government was composed exclusively of the officers enumerated in the funding law, as composing the Board of Liquidation, with the exception of the Speaker of the House of Representatives, who is an officer of the political department of the State.

When we take into consideration that the object in view was to liquidate the public debt, which consisted at the time of many millions of dollars in excess of the proposed limitation, evidenced by bonds and warrants of various series, and in exchange for which consolidated bonds were to be given, it is manifest that a political question of serious importance was presented for the consideration of the General Assembly, and that they wisely conceived the idea and devised the funding scheme, and gave it in charge of the executive department of the State government, with the solitary super-addition of the Speaker of the House of Representatives,' as the most suitable exponent of the political power of the State. Or, in other words, a case is presented where the political department of the State has delegated to the executive department thereof the authority to examine into and place a limitation upon the State debt, by funding miscellaneous evidences of debt into consolidated bonds of the State.

At most the funding law merely extends a grace to the public creditors of the State, of which they have the option to avail themselves under the exceptional circumstances stated. In case creditors elect to do so, and any one- of their'claims should be disputed and disallowed by the respondent, such creditor has the right to have its legality tested in the mode pointed out in Section 3 of the act. That is the particular manner and event in which the State has consented to submit herself to the jurisdiction of the courts in the premises, and the statute points out the formula, or ceremonial, of the judicial procedure, and expressly limits action in the premises. Lord Cecil vs. The Board of Liquidation, 30 An. 35; State ex rel. New York Guaranty Co. vs. Jumel, 38 An. 337; State ex rel. Newman vs. Funding Board, 39 An. 395.

Act 11 of 1875 supplemented, only, the authority conferred by the statute of 1874, in the following particulars:

1. By authorizing any tax payer to institute suit in his own name, or to intervene in any pending suit, for the purpose of testing the legality or validity of any issue of bonds or warrants, and to inquire into the consideration for which same’ issued.

2. To restrain the board from funding such bonds or warrants until their validity shall have been finally determined by this court.

3. By making an enumeration of the various issues of bonds and warrants which were deemed of doubtful validity.

4. By declaring that the presidents of the New Orleans Cotton Exchange and of the Board of Trade shall be members of the board, with the proviso, ‘ ‘ that any delay, refusal, or inability of either, or both of said last named persons to qualify as members of said board, or of the non-existence of either, shall not affect the validity of the said board and its acts; and a majority of said board shall be required in order to perform any ofiieial act.” Acts of 1875, p. 110, et seq.

It is apparent that this statute did not change the autonomy of the board as originally organized; on the contrary, it expressly provides that the addition of the presidents of two New Orleans exchanges shall not alter the status of the board; that the failure or refusal of either to act shall not affect the validity of the board or its acts; and that “ a majority of said board shall be required in order to perform any official act.” Evidently, the presidents of the exchanges were intended to be advisory members only, and their addition did not, in any way, affect the character of the organization as an executive body charged with the performance of political functions.

Indeed Act 58 of 1877, amendatory of Section 2 of Act 3 of 1874,. omits the presidents of the exchanges entirely, while it reiterates all others.

As drawing, very clearly, a line of distinction between the political powers which the board was to perform, and the judicial power the courts were authorized to exercise, we refer to what was well said in this case, when it was last before us, viz: “The State has given permission for a certain class of obligations to be presented by the holders of them to Louisiana courts for determination, as to their validity, and thus, in authorizing suit against herself, she has pointed out the channel through which it must reach the coui’ts, and it must be followed.” Hope & Co. vs. Board of Liquidation, 41 An. 535. Butwe are requested to, go much further, now, and coerce the aetion of the board; not in reference to the recognition vel non of the claims of' creditors, but in reference to the propriety of its meeting at all, and the designation of the time when and the place where it shall meet, and the purposes for which the meeting is to be held. When we reflect upon the object to be attained by the funding scheme, and that the total debt was to be thereby reduced to $15,000,000; and then consider that the holdings of the relators amount to more than $4,000,-000 in capital, alone, it may be a question of serious consideration with the respondents when they should take action in the premises. It may well be that the precipitation of an issue of such grave moment as that of the allowance vel non of a claim, equal in amount to one-fourth of the public debt, at an inopportune moment, might prove embarrassing to the State, and seriously affect her credit at a. time of greatest need.

It was made a question before our immediate predecessors, whether a loan proposed to be made by the Legislature to the New Orleans Pacific Railway Company, in' 1878, was not unconstitutional, because the fifteen million limit to the State debt, contemplated and provided in the funding laws, and the constitutional amendment of 1874 had, theretofore, been reached, and on that question they said: “This, legislation — the funding bill and the act proposing the constitutional amendment — followed immediately upon the submission to the General Assembly of the Auditor’s report of January 1, 1874, wherein is. this statement and information.”

Then follows a quotation from the Auditor’s report, giving in detail the amounts of warrants and bonds representing “the actual debt of the State” which he esteemed fundable, and the aggregate of which was $24,356,338.72. The opinion then proceeds: “In a tabulated statement appended to the report and forming one of the exhibits, the total amount of the bonded debt of the State for which the State is actually liable, is fixed at the figures above set forth, and there are then itemized other bonds for which the State is contingently liable, amounting to $4,853,683.33, which, with a sum stated as the ‘ miscellaneous debts ’ of the State, make up a sum of $30,000,000. In exact figures, it is that sum less $827.17. The funding of that sum at the rate suggested by the Auditor and adopted by the Legislature will create a consolidated debt of $18,000,000. The funding of the sum stated by the Auditor as the actual debt of the State will create a debt of a little less than $15,000,000. It is obvious that the plan both of the Auditor and the Legislature embraced only the latter sum, or, in other words, that it excluded the bonds loaned to the Citizens’ Bank, and the Consolidated Planters’ Association, which amounted in round numbers to the sum above stated, as a debt for which the State was contingently liable.”

In the concluding part of the opinion the court say: “It is impossible that the contingent liability of the State upon the bonds loaned to the Citizens’ and Consolidated Banks should have entered into the plan, because the funding of them with the other liabilities will produce a sum greatly exceeding that .fixed by the act and the amendment.” State ex rel. New Orleans Pacific Railway Company vs. Nicholls, Governor, 30 An. 980.

When we reflect upon the fact that the relator’s bonds are the bonds there under consideration, the difficulty of the situation is increased, and the urgency of relegating the whole matter to the discretion of the Board of Liquidation, and ultimately to the Legislature, is increased. It is quite true that this might be an argument against the bonds when put upon their merits before the board for allowance, but it also affects the question now before us, as to whether it was contemplated that the judiciary should take action in the premises. We think it is clear that.we should not; and, as our - duty to grant the extraordinary relief afforded by mandamus has not been made ■plain and unmistakable, we ought to refuse it, and shift the burden on the shoulders of the Legislature, who are better capacitated to deal with the question than the judiciary are.

This question is now presented and contested for the first time, and no case cited, and none that we have been able to find, is at variance with the view we have expressed. We have examined the following cases, viz: State ex rel. Board of Supervisors vs. Board of Liquidation, 30 An. 816; Louisiana National Bank vs. Board, etc., 30 An. 1356; State ex rel. Bartlette vs. Board, etc., 31 Án. 273; State ex rel. Meyers vs. Board, etc., 33 An. 124; State ex rel. Bank vs. Board, etc., 29 An. 264; State ex rel. Forstall vs. Board, 29 An. 690; Manning vs. Board, etc., 39 An. 343; Jardet vs. Board, 40 An. 379; State ex rel. Newman vs. Funding Board, 39 An. 395; Oliver vs. Board, etc., 40 An. 321; Sage vs. Board, etc., 37 An. 413; Adams & Co. vs. Board, 39 An. 689; State ex rel. Forstall vs. Board, etc., 29 An. 692; and find no contrary principle announced therein; and we apprehend none can be found in opposition to it.

That mandamus will go to State officers for the performance of purely ministerial functions, has been decided in many cases, among which the following may be cited: State ex rel. McCurley vs. Auditor, 27 An. 429; State ex rel. Mentz vs. Auditor, 28 An. 47; State ex rel. Longstreet vs. Treasurer, 28 An. 932; State ex rel. Merle vs. Treasurer, 26 An. 132; State ex rel. Jumel, Auditor, 30 An. 861; State ex rel. Moss vs. Jumel, Auditor, 31 An. 142; State ex rel. Ecuyer vs. Burke, Treasurer, 33 An. 966; State ex rel. Campbell vs. Steele, Auditor, 37 An. 355.

But it has long been a question of delicacy and great difficulty for the courts of this country, State and Federal, of last resort to determine where the exact line of demarcation is to be drawn between political and executive duties, for the performance of which mandamus will not go to a governor of a State, and purely ministerial duties, for the performance of which the writ will lie.

As applicable to the question in hand, we may cite State ex rel. Oliver vs. Warmoth, Governor, 22 An. 1, in which our predecessors expressed themselves as follows, viz:

“When the official acts to be performed by the excecutive branch of the government, are divided into ministerial and political, and courts assume the right to enforce the performance of the former, it opens a wide margin, for the exercise of judicial power. The judge may say what acts are ministerial, and what political. Circumstances may arise, and conditions may exist, which would require the governor of a State, in the proper exercise of his duty, and with due regard to the interests of the State, not to perform a ministerial act. Is the judge to determine his duty in such a case, and compel him to perform it? The reasons of the executive for the non-performance of an act, the judge may never know, or, if brought to his knowledge, he may review and overrule them; and, in so doing, assume political functions. He would determine, in such case, the policy of doing the act. The Legislature which prescribed the act might hold the executive harmless, while the judge condemned him.” (Italics in quotation are ours.)

In our opinion, the very difficulty, suggested by the court, in that opinion, has arisen, and is confronting us here — the rightfulness of the exercise of judicial power, for the purpose of coercing “the executive branch of the government,” in the performance of duties, which it, in the proper exercise of its discretion, and with due regard for the interests of the State, declines to .perform.

If it be, even, conceded that it is questionable whether the duties assigned to the funding board are purely ministerial, this court would “ open a wide margin for the exercise of judicial power,” in assuming that they are, and making the mandamus peremptory. The question of greatest importance — and that which is uppermost in the executive mind — is, what, under the circumstances, is the proper exercise of executive duty in the premises, with due regard to the welfare of the State? Can the judiciary, with due regard to the funding scheme, decide the question thus arbitrarily, and by mandamus compel the respondents to act?

Another decision of our predecessors, construing a similar funding statute, has peculiar significance (in respect to the one under consideration), wherein a judgment refusing a peremptory mandamus against a board of liquidation was affirmed. The court invited special attention to the fact that “the words used are ‘authorized and empowered,’ as exercising a controlling influence, over the performance of duty by the Board of Liquidation.” State ex rel. Burnet vs. Warmoth, Governor, 28 An. 76.

In this connection, it is a noteworthy fact, and should be taken into consideration, that the only words employed in the funding laws of 1874 and 1875, with regard to the powers or the organization of the board, are “that the parties designabed in foregoing section shall constitute a board of liquidation.” In the case last referred to, the court said, of the statute considered, that “the act which the members of the board was required to do was ministerial, and from its very nature involved a discretion in them, in regard to the manner of doing it." State ex rel. Smith & Co. vs. Board of Liquidators, 23 An. 388.

The same rule of interpretation is applicable to the respondent board under the law of 1874.

This seemed to be the view entertained of it by our immediate predecessors, who, in considering an application for mandamus to the respondent board, said: •

The writ “ is not granted in doubtful cases. To warrant the relief, the relator must have a clear and legal right to the performance of a particular act, or the fulfilment of a particular duty, at the hands of the respondent, and this right must be a complete, and not merely an inchoate right. High’s Ex. Le. Rem. Sees. 7, et seq. To justify the issuance of the writ in this case, the relator must have a present and perfect right to have the bonds presented by him, funded, and it must be the respondent’s duty to fund them — a duty, the performance of which is not discretionary on the one hand — a right which is not inchoate and imperfect on the other." State ex rel. Exchange Bank vs. Board, 29 An. 264. Counsel for relators cite with reliance an opinion of the Indiana Supreme Court, which says:

“ But the question whether a mandamus will lie against the Governor to enforce the performance of an executive duty does not arise in this ease. The duty of the Governor, in connection with the other officers named in the act, is not executive. The executive power of the the State is vested solely in the Governor. Constitution, Art. 5, Sec. 1.

“Any power or authority vested by legislation in the Governor together with other officers or persons, in which they are to have an eqnal voice with him, can not be executive, as he alone is vested with the executive power of the State. Any duty which he is by law required to perform in connection with others, in which they have an equal voice -with him, can in no sense be said to be an executive duty.

“The Governor and the other officers named in the act may be regarded as constituting a board, organized by the Legislature for the performance of certain duties; and a mandamus will lie against them to enforce the performance of the duties prescribed.” Gray, etc. vs. Coghlin, etc., 72 Ind. 578.

But that opinion is not applicable here for two reasons: (1) Because “the executive power of the State” of Louisiana is not exclusively vested in the Governor, only “ the supreme executive power;” (2) because “ the other officers named” in the funding statutes of 1874 are themselves members of the executive department of the State government. Hence this is not a case where the Governor is merely designated as ex virtute officii a member of a board in connection with other persons which is charged with the performance of certain des1ignated ministerial duties. On the contrary, the law declares that “ the Governor, Lieutenant Governor, Auditor, Treasurer, Secretary of State and Speaker of the House of Representatives * * shall constitute a Board of Liquidation.” Such officers have acted, and when their terms of office have, from time to time, expired their successors in office have taken their places in the Board of Liquidation without any formal reappointment or investiture with any insignia of office as such. The-board is a continuing one, only subject to legislative recall.

There are many cases in which the courts of different States have held that mandamus will go to the chief executive officer of a State, but for the performance only of specific ministerial duties. Of that class we cite the following, viz:

Bonner vs. The State of Georgia, 7 Ga. 481; State ex rel. Whiteman vs. Chase, Governor, 5 Ohio St. 228; State vs. Governor, 7 Ohio St. 372; Attorney General vs. Bamstead, 4 Wis. 567; Cotton vs. Ellis, Governor, 7 Jones (Law) N. C. 545; State ex rel. Wall vs. Blasdell, 4 Nevada 241; State ex rel. Lockwood vs. Kirkwood, 14 Iowa 162; Harpending vs. Knight, Governor, 39 Cal. 189; McCurley vs. Brooks, 16 Cal. 11; Middleton vs. Law, 30 Cal. 596; Street vs. Haight, Governor, 39 Cal. 87; Chamberlain vs. Sibley, 4 Minn. 312; McGurdes vs. Swan, Governor, 25 Md. 173; Groom vs. Goomor, 43 Md. 572; Railroad vs. Moon, 36 Ala. 382; Grover vs. Nelson, 6 Ind. 496; Baker vs. Kirke, 33 Ind. 517; Chummassero vs. Potts, 2 Mo. 242.

We cite these merely for the purpose of showing that in a variety of cases, and in different courts of the country, mandamus has gone 'to the chief executive officer only when the law had imposed on him, ■either alone or in connection with other persons, the performance of specific ministerial functions, superadded to those devolving upon him under the Constitution and general laws of the State. Bnt even on this question there are quite as many and quite as respectable authorities which express a contrary view, and in the following cases it has been held that in no case will the writ of mandamus lie to the chief executive of a State. People vs. Hatet, 33 Ill. 9; State vs. Deslonde, 27 Ala. 71; State vs. Deke, 20 Minn. 363; Railroad vs. Randolph, 24 Texas 537; Rhodes vs. Railroad Co., 40 Texas 537; Railroad Co. vs. Graves, 47 Texas 428; Chalk vs. Darden, 47 Texas 438.

In the following cases doubt is expressed as to the allowance of the writ, and limiting its employment to extreme cases: Hawkins vs. Governor, 1 Ark. 570; State vs. Drew, 17 Fla. 67; Low vs. Townes, 8 Ga: 360; People vs. Bissell, 19 Ill. 229; People vs. Yates, 40 Ill. 126; Durant vs. Governor, 32 Maine, 508; People vs. Governor, 29 Mich. 320; Rice vs. Austin, 19 Minn. 103; Railroad Co. vs. DeGraff, 27 Minn. 1; Railroad Co. vs. Lowry, 61 Miss. 102; State vs. Governor, 39 Mo. 389; State vs. Governor, 25 N. J. (Law) 331; Hartrauft’s Appeal, 85 Penn. St. 433; Maurin vs. Smith, 8 R. I. 192; Turnpike Co. vs. Brown, 8 Baxter, 490.

This extensive examination of and research into adjudicated cases has satisfied us of the correctness of the general proposition, that, whenever, by the constitution and laws of a State, officers of the executive branch of the government are vested with discretionary fmictions, in the performance of civil duties, or political powers and responsibilities are devolved upon them, they are not answerable to judicial process, but that their acts are only examinable politically. From this proposition the supplemental one may be deduced, that when such duties and powers devolve upon the executive branch or department of the State government, as a whole, as in this case, the members of the board thus constituted are likewise exempt from judicial control; and, notwithstanding that some of the officers, respectively, are subject to judicial control, and can be coerced by mandamus: to act, and to perform “ their ordinary official duties.” Such is the purport of United State vs. Dunlap, 128 U. S. 40; Kendall vs. United States, 12 Peters 524; United States vs. Schurz, 102.U. S. 378; Decatur vs. Paulding, 14 Peters 497.

On reason and authority we think the judgment should be reversed.. It is therefore ordered and decreed that the judgment appealed from be reversed; and it is further ordered that a peremptory mandamus be refused at relator’s cost in both courts.

Dissenting Opinion.

Fenner, J.

I am compelled to dissent from the opinion and decree herein, and adopt as my reasons therefor the opinion rendered by the learned judge a quo, which is as follows:

“The relators, Hope & Co., allege that they are holders of bonds amounting to $4,018,626.48, for which the State of Louisiana is liable, and which they have the legal right to exchange for consolidated bonds of the State, in the ratio, and at the rate of interest prescribed by the Funding Act of 1874, and the statutory and constitutional modifications thereof since adopted.

“That desiring so to exchange their said bonds, they have surrendered them into the custody of the Board of Liquidation of the State Debt, and have, in accordance with the rules of procedure established by said board, made formal application to it for the funding and exchange aforesaid; but that the said board have failed and refused to assemble and act upon said application, although this is a duty devolved upon them by law.

“They, therefore, by this suit, ash that a peremptory writ of mandamus do issue, requiring said board to meet and act upon their offer and demand for the funding of their said bonds. The alternative writ having issued, said Board of Liquidation have made return thereof by the Attorney General, in effect, that the members of said board are also members of the executive department of the State government; that their official acts as said board are official acts of said executive department, and, therefore, that the court is without power to require said board to meet, or to fix a time of meeting, or to direct what business it should consider; the power and duty of convening it resting in the executive and not with the judi - ciary branch of the government.

“ For further return they declare, but without waiver of their denial of jurisdiction in the court, that they are charged with discretionary power as to their assembling for the business of the nature proposed by relators; “having in view the public interest, and the preservation of the public credit;” that, on its face, relators’ application shows that they have rejected their privileges under the Funding Act of 1874,if any they had, which is denied; that the legislative appropriation, biennially made since 1880, and annually made prior to said year, to pay the interest ,ori the State -debt, have not embraced provisions for the bonds of relators, and that, not having availed of said Act of 1874, nor moved until the year 1888, thereunder, relators can not, at their own will and convenience, and regardless of the public weal, require a meeting of the Board of Liquidation as they are attempting; that the Legislature will not be in session until May, 1890, and the present time is inopportune; and finally, that the executive is charged with the conservation of the public welfare and the execution of the laws of the State, and must act upon his official discretion, in the exercise of which he has the constitutional guarantee of immunity.

“The issues as made up, as I understand them, present the legal question: (1) Whether the judiciary of the State has power to compel thedefendant board to assemble, and act upon the application of any holderof evidences of the State’s indebteness, claimed to be fund-able under the Funding Act of 1874 and its amendments; and (2) whether the tardiness of relators, in making application to fund their bonds, they having delayed from the year 1874, when the Funding Act was passed, up to the year 1888, is not good cause why the Board of Liquidation should not meet, or act, at this inopportune time, for the reason, that provision has not been made to meet the interest that would be due on relators’ bonds, if funded, and can not be made until in May, 1890, the effect of all which might be to make the State a defaulter, quoad said interest, to the serious detriment of its financial credit, and the injury of all holders of its valid and outstanding securities.

“The evidence fully sustains relators’ allegations as to the surrender of their bonds to the defendant board, and their formal application for a meeting of said board audits action thereupon for the funding and exchange of said bonds, as also, that they have failed to obtain such meeting and action.

“ The matters relied upon by defendant board are within the judidicial cognizance and required no proof.

“ The first question raised, i. e., whether the court has jurisdiction, is dependent on the further question, whether or «.ot the defendant board is a part of the executive department of the State government, and as such called upon to act touching the matters under consideration, within the sphere of their duties, as such executive officers.

“If yes, and, in these executive duties, they have discretionary power, it is manifest that the judiciary, a co-ordinate branch of the government, could have no authority whatsoever. State Constitution, Arts. 14, 15.

“Desiring to avoid even the appearance óf willingness to interfere in the slightest degree with the functions of either of the other departments, I have, as a judge, carefully considered the authorities relied upon by the Attorney General, and the arguments addressed with reference to the distribution of the governmental powers of the State.

Having them in mind, the inquiry arises, what is the composition of the Board of Liquidation, and what are its legal functions and powers ?

By the Funding Act No. 8 of 1874, and the amendments thereto of 1875, the Governor, Lieutenant Governor, Secretary of State, Auditor and Treasurer (all of whom are by Art. 58 of the Constitution designated as composing the executive department), the Speaker-of the House of Representatives (by same designation a legislative officer), the President of the New Orleans Cotton Exchange and the Fiscal Agent of the State (who are without constitutional designation, were constituted a body politic, to be known as the Board of Liquidatian of the State debt.

“The duties of the foregoing State officers were to ‘ cause to be prepared,’ and of said board, to issue bonds'to be known as consolidated bonds, in exchange for all valid outstanding bonds, and certain valid outstanding warrants of the State, at 60 cents of the consolidated bonds for §1 of said outstanding bonds and warrants; with the proviso, that the holders of any bond or warrant, rejected by the majority of said board, ‘may apply by petition to any court for relief, and if final judgment shall be rendered in his favor, against said board, it shall be the duty of said board to fund said claim in bonds, at the rate provided in this act.”

By the supplementary Act No. 11 of 1875, the Board of Liquidation was prohibited from issuing any consolidated bonds for any outstanding bonds,, or warrants, the legality or validity of which may have been, or might thereafter, be questioned, “until said bonds, or-•warrants shall first, by final deoree of the Supreme Court of the State of Louisiana, have been declared legal and valid obligations against the State,” etc.; and the right of action against the board was given to any tax payer, to institute a suit, or to intervene in any suit to test such questioned bonds.

The act then enumerated by special recital certain bonds and warrants, which were declared “ questioned.”

It is also provided that a majority of the board should be required to perform an official act.

For misconduct in their duties the members of said board were subjected by the former act to prosecution • and punishment before the courts.

Now, in these laws I find nothing which identifies the Board of Liquidation with any department of the State government, and the Constitution has nothing On the subject.

On the contrary, I find that it is a creation of a statute, or a body corporate, charged with certain ministerial duties, and clothed with a certain discretion or judicial power, susceptible of exercise “ in the first instance, but not final, recourse to the judicial courts of the State being expressly granted by the statute to compel it to fund or to prohibit it from funding, whenever the issue of fundability is raised.

It acts officially through the majority of its members. In its deliberations and its acts, therefore, I find that each member is the peer of each of his fellow members, for the law makes them equal; so that the voice and the vote of the Cotton Exchange president, or the Fiscal Agent, are as potent as the voice and the vote of the Governor of the State, or of the Speaker of the House, although the former are not classed as State officials, whereas the latter are officers of exalted rank.

. Nor do I find any action required, or duties imposed upon the Governor or Speaker of the House, as members of this board, which relate, in the slightest degree, to their legal or constitutional functions as Governor or Speaker.

The same may be said of each and every other member of the board, although he may be the incumbent of a State office.

I am, therefore, of the opinion that the defendant board is not a part of the executive department, but rather that it is but a corporate body, a person in law, and therefore distinct from the members who compose it. R. O. O. 427, 435.

As such I find nothing in the law, organic or statutory, which •exempts it from judicial control, whenever, by its actions, any person alleges himself to have been deprived of a legal right.

The Article 11 of the Constitution declares that “all courts shall be open, and every person-for injury done him, in his rights,” etc., “ shall have adequate remedy, by due process of law, administered without denial or unreasonable delay.”

From the very statute creating the board, it seems to have been expressly subjected to judicial control in the matter of funding the State debt. For example, by the Act of 1874, if the board, through a majority of its members, reject an application to fund, the holder of the rejected bond, or warrant, can by suit compel the board to fund the same, if found by the court to be legal and valid.

Again, if a bond, offered for funding, be of a class or kind known as “tainted ” or “ questioned,” the board is powerless to fund it -until by judgment of the Supreme Court it shall have been declared legal and valid.

In every ease where an issue has been raised, or may be, as to the right to fund any bond or warrant of the State, the ultimate discretion, the absolute jus dieendi, is lodged, not in the Board of Liquidation, but in the judiciary of the State, the Supreme Court being the final arbiter. ■

And so, in accordance with this view, the judicial power has been repeatedly exercised to compel the board to fund, or to prohibit it from funding evidences of State indebtedness, presented for its action.

See 30 An. 816, 1356; 31 An. 273, 33 An. 124, 39 An. 327, 343, 395; 40 An. 321, 379; and many other cases.

As therefore the judicial power exists to compel or to prohibit action of the board on the vital issue of funding the State indebtedness, which was the sole object of its creation, and is the only reason for its existence; and if, as the statute declares, its members individually are subject to prosecution and punishment, before the courts, for unlawful acts of omission or of commission, in their conduct as such members, a fortiori the judicial authority must embrace, when properly invoked, the minor power of compelling the board to assemble and discharge its duty, for otherwise the greater would not include the less.

II.

The matter remaining for consideration is, whether the tardiness of the relators in making their application, and the fact that owing to the absence of appropriation to meet the interest on relators’-bonds if they should be funded, their said application is so inopportune as to justify the board in refusing to meet and act thereon from consideration of public policy affecting the credit of the State.

On this issue, I think the Acts of 1874 and 1875, and the organic provisions adopted in 1874 and 1879, with reference to the State debt, constituted a distinctive offer made by the State to the holders of its obligations.

These measures, adopted by the people, were necessitated by the profligacy and corruption of years of usurpatory and alien government. They were the best the people felt themselves able , to do. The offer thereby made to the creditors of the State was a standing offer without limit as to time of acceptance so long as the limitation in the aggregate amount of the State debt was not exceeded, or so long perhaps as the period for the maturity of the'consolidated bonds had not lapsed.

This being the case, it would seem the ministerial duty of the Board of Liquidation, whenever the holder of a fundable bond or warrant tenders acceptance of the proffered terms of settement, to meet, consider and pass upon his offer, for the express object for which it was created, was and is to carry into practical operation. said measures of adjustment of the State debt.

With the questions of policy, or expediency, and whether the application of relators is opportune or otherwise, I think the board have nothing to do. ■ Surely not at this stage of the proceedings, if in any event; as to which, expression of opinion is not now required.

At all events, as judge, I have no power to deal with such considerations, for my plain and only duty is to find what the law declares, and as its organ to give voice to its behests.

The relators have made proper application to the board for the funding of their bonds. The board have refused to meet, and hear, and pass upon that application.

This proceeding is not to compel the board to fund relators’ bonds, but to require them to assemble and either to fund or reject them.

To assemble and pass upon the application is a duty devolved by law upon the board, as to which they have no discretion within reasonable limits of time and public convenience, and, under O. P. 829-884, I think the relators are entitled to the peremptory writ. See 40 An. 895.

For these reasons, there must be judgment in favor of relators, against defendants individually as members of said board and as a board, making the mandamus peremptory, and fixing twenty days, dating from the day this judgment becomes final, as the time within which said board shall assemble, for consideration and action upon the application of relators.

Let judgment be entered accordingly.

[Signed]

Thos. O. W. Ellis, Judge.


source: Caselaw Access Project

author: McEnery, J.

license: Public Domain

text:
    No. 10,633.
    The State ex rel. C. R. Mower vs. The Judges of the Court of Appeals for the First Circuit.
    Where a party brings a petitory action, and the defendant answers, claiming less land than demanded in the petition, but is the possessor of the whole tract described in plaintiff’s petition, the controversy can not, for the purposes of jurisdiction, be restricted to the land claimed by the defendant.
    ^PPLICATION for Mandamus.

      W. W. Richardson, Wise, Herndon and Stubbs for the Relator.
   The opinion of the court was delivered by

McEnery, J.

This is a mandamus proceeding to compel the Court of Appeals of the First Circuit to take jurisdiction.

From a judgment rendered against relator by the District Court of Bienville parish, the plaintiff and relator appealed to the Court of Appeals of the First Circuit.

• The defendant filed a motion to dismiss the appeal, as the Appellate Court was without jurisdiction rations materias. The motion was sustained and the appeal was dismissed. We are asked to compel the Court of Appeals to take jurisdiction of the case.

The relator and plaintiff instituted a petitory action against the defendant, claiming title to property valued at $1200, and for timber destroyed on the land by defendant valued at $500, and for rent for two years $400, amounting to $2100.

The defendant answered, pleading a general denial to all of the allegations contained in plaintiff’s petition, except that he is in possession of the land described therein.” He setup title in the United States government or the State of Louisiana.

He filed an amended answer in which he adopted all the allegations contained in his original answer. In his amended answer he alleges that he moved upon the land described in the petition for the purpose of homesteading 160 acres.

The relator contends that by filing this amended answer the controversy was narrowed down to the title to the 160 acres, which would bring the amount down to less than $2000, the upper limit of the jurisdiction of the Court of Appeals.

On the face of the petition the amount of plaintiff’s demand exceeds $2000. For this amount the defendant was sued. The defendant by claiming less can not reduce the amount so as to give jurisdiction. The plaintiff relinquished no part of his demand.

The defendant was in possession of the land. This he admits in the original and amended answer. He was in possession of the whole tract sued for. The plaintiff was compelled to sue him as the possessor. He did not surrender any part of the land to plaintiff; and as to the defendant, regardless as to that ownership, the action .must be prosecuted against him while he is the possessor of the property. C. P., Article 43:

It is, therefore, ordered that the mandamus be refused at relator’s cost.


author: Bermudez, C. J.

text:
    No. 10,588.
    A. Riggs & Co. vs. Mrs. Jessie R. Bell et als.
    Nothing but actual damages will be allowed, because ol.the issuance o£ an injunction, subsequently dissolved, when it is apparent that the party obtaining it, had plausible rights threatened with invasion; acted in good faith, under advice of able and experienced counsel and without malice or intent to harass, but solely in the vindication of the same.

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

      Branch K. Miller for Plaintiffs and Appellants:
    Where the sole object of a suit is to procure an injunction, attorney’s fees for the whole'case may be recovered by the defendant in a suit for damages against the plaintiff in injunction. Cost of printing briefs are items of damages.
    Expenses of furnishing substitute for steam power, use of which is enjoined, are direct consequences of the injunction, and are recoverable as damages, on dissolution of the writ.
    Boss of time, loss of business, disorganization of same, etc., though not susceptible of exact proof, are recoverable as actual damages, if caused by the writ.
    -One who participates in the wrongful act of another is responsible as a principal. 84 An. 1123, Michem on Agency, Sec. 571.

      Sam* l L. Gilmore and James D. Hill for Defendants and Appellees
    -cited: 37 An. 813; 5 An. 714; 12 An. 393; 36 An. 162; 2 An. 773; .8 An. 13.
   The opinion of the court was delivered by

Bermudez, C. J.

This is a suit in damages.

The fundamental allegations are that Mrs. Bell, maliciously instigated by Mr. A. Hill, has issued against the plaintiffs an injunction which was subsequently dissolved, and that by reason thereof they have sustained injury, which, itemized, aggregated $7000.

The answer of Mrs. Bell admits the institution of the suit in which the writ issued, but denies that the plaintiffs have sustained any damage, and charges that, in consequence of the acts of plaintiffs, she is entitled to indemnity, which she reserves the right hereafter to claim.

Hill denies the charges against him, averring his absence abroad when the suit was brought, and pleads the prescription of one year.

From a judgment condemning Mrs. Bell to pay $325, and exonerating Hill, the plaintiffs appeal.

It appears that Mrs. Bell, who is the usufructuary of certain property which she occupies in this city, brought suit, coupled with an injunction, to prevent Biggs & Bro., who are cistern makers, from using certain wooden or frame structures, and putting up an engine and boiler, on a lot belonging to them and adjoining hers.

She alleged that the buildings had been constructed within the fire limits, contrary to municipal regulations and prohibitions, and tnat the putting up of the steam engine and boiler, though authorized by the City Council, would be in violation of her right to the secure and peaceable possession and enjoyment of said property; that on said premises there are at all times large quantities of seasoned cypress and pine lumber, heaps of shavings highly inflammable in their nature, and that the erection of a steam engine, etc., upon said premises or in said frame building, and in the midst of said lumber and shavings, will place the property and the lives of herself, children and servants in constant and imminent danger of fire; that the noise, smoke and escaping steam therefrom will injure the property and her family’s health and comfort, and a permanent nuisance be thereby established.

She’prayed for provisional injunction, asking that, after due proceedings, it be perpetuated.

The injunction sought issued.

It remained in force for some time, until by the failure of Mrs. Bell to furnish an additional bond, it ceased to be operative.

When the case was tried on its merits, there was judgment dissolving the injunction, which, on appeal, was affirmed. 88 An. 555.

An examination of the record satisfies us that Mrs. Bell acted in good faith, under the advice of able and experienced counsel, in the vindication of what she plausibly conceived to be her rights, which were kindred to similar ones which had been, to some extent, previously recognized in a somewhat analogous case, which may have been construed as authorizing her complaint, and the relief judicially sought. 86 An. 162. But the injunction having been dissolved, she remains under the obligation of repairing the actual damages which it has undoubtedly occasioned.

The suit does not belong to that category of cases, in which a plaintiff whose injunction is dissolved may be either exonerated from all indemnification, or condemned to constructive or exemplary damages.

The District Judge has patiently heard all the testimony adduced, and, in an elaborate opinion, impressed with a strong desire to do justice, has assigned satisfactory reasons to allow $325 only as damages.

As regards the liability sought to be affixed on Mr. Hill, we find that there is nothing to show that he advised, suggested, instigated or fomented the injunction suit, and that the charge of malice against him is entirely gratuitous. The District Judge came to the same conclusion.

The sum allowed covers attorney’s fees, the cost of a temporary building, the rent of certain premises and the hauling of machinery.

The District Judge has assigned sufficient reasons to reject the two items, §3520 and §2990, for loss of time, profits, business, etc., set up by the plaintiffs. It would serve no useful purpose and be of no general interest to justify further his conclusions in this opinion.

It is ordered and decreed that the judgment appealed from be affirmed, the appellants to pay costs of appeal.


text:
    No. 10,499.
    Louisiana and New Orleans Ice Company vs. C. H. Parker, State Tax Collector.
    Tlio amendment; to Art. 207 of the Constitution, the adoption of which was promulgated 12fch May, 1888, did not operate retroactively, and exempt property from taxation for the year 1888, assessed under the Revenue Act of 1886. The property so assessed owed the tax from the completion of the assessment rolls on the 31st March, 1888.
    APPEAL from the Civil District Court for the Parish of Orleans. VoorhieSj J.

      James B. Guthrie and Moise & Titche for Plaintiff and Appellee:
    1. An assessment is the official estimate of the sums which are to constitute the basis of an apportionment of a tax between individual subjects of taxation. Cooley Taxation 351; Welty on Assessment 3; Bouvier, Webster, Worcester, verbo “_s.ssessnn*iit;” Green vs. Gruber, 26 An. 696.
    2. The act of listing and assessing property does not lay the tax charge. The tax charge is laid and imposed by the levy. The levy is essentially a legislative act. Cooley on Taxation, 2d 3Cd. (p. 324) and authorities, Note 1; Blackwell on Tax Titles, Secs. 301, 304; State vs. Maginnis, 26 An. 558; Templeton vs. Board, 16 An. 118.
    3. A levy may he made upon past assessments. Municipality vs. Wheeler & Blake, 10 An. 745; 13 An. 268; 14 An. 853, 854; 15 An. 123; 21 An. 102; 4 Wallace 173; 16 An. 117. Or upon future assessments,as in the case of the Revenue Acts of 1880,1882, 1884,1886 and 1888, levying taxes upon assessments subsequently made in 1881, 1883,1885,1887 and 1889.
    4. When an amendment to Art. 207 of the Constitution, exempting ice manufactories from taxation, was adopted in April, 1888, and promulgated May 12,1888, and two months thereafter, to-wit, July 12th, 1888, the Legislature levies a tax for the year 1888 upon all property not exempted from taxation, the said levy is inoperative as against ice manufactories and the tax can not be enforcedBanlr cases, 15 An. 89, 107,123; Templeton vs. Board, IS An. 118.
    O. The fact that the property was listed and an estimated valuation placed thereon can not have the effect of mating the statute, operate retroactively so as to create a tax charge before the promulgation of the exemption. The tax for 1888 was not due nor laid until the levy made by Act 85 of 1888. At that tim e the exemption had full force and effect; hence the assessment was an absolute nullity.

      Walter JET. Rogers, Attorney General, and Wynne Rogers, Attorney for Tax Collector, for Defendant and Appellant:
    The assessment for the year 1888 was made and completed under the provisions of Act No. 98 of 1886, before the constitutional amendment was in force.
    When a revenue act provides for a future levy, and fixes the date for the deposit of the tax rolls in the offices of the collectors, that time is to be considered as the period when the taxes become due and collectible, especially when the deposit of such rolls is made the warrant of the collectors for the collection of all taxes.
    The Revenue Act of 1886 provides for future levies and fixes the time of such deposit of the tax rolls for 1888, before the passage of Act 85 of 1888.
    Revenue Acts are prospective in their operations. Act 85 of 1888 is not retroactive in its operations, no such object being expressed in its title.
    It would be manifestly unjust to excuse the plaintiff company from the payment of its taxes when under the decision of this Honorable Court another company similarly situated has had to pay. 33 An. 858 ; 36 An. 765; 39 An. 115; 40 An. 697
   The opinion of the court was delivered by

McEnery, J.

The plaintiff company enjoined the seizure of it» ice factory, situated in the City of New Orleans, by the State Tax Collector for taxes due in the year 1888, on the ground that the amendment to Art. 207 of the Constitution exempted said property-from taxation and was in force when the tax was levied.

There was judgment for the plaintiff and the defendant Tax Collector has appealed.

The property under seizure was assessed for taxation in the year 1888 under the provisions of Act 98 of 1886 and the assessment rolls were completed on the 31st of March, 1888, and were filed with the Tax Collector on August 26 following. The tax rolls should have been filed with the proper official of the City of New Orleans by the first day of May and with the Auditor of the State by the first day of July. Sec. 3 of Act 98 of 1888.

Act 109 of the Acts of 1882 compels the City of New Orleans to levy a tax for each year between the 1st day of May and the 30th day of June.

The question at issue is, was the property of the plaintiff company liable to taxation before the adoption of the constitutional amendment exempting it from taxation.

The property could have been assessed only under Act 98 of 1886, as it was the revenue law in force when the assessment was made. This act required the assessment to be completed by the 81st of March of each year, and directs copies of the rolls for the City of New Orleans to be delivered to the City of New Orleans by the 1st of May, and to the Auditor of the State by the 1st day of July, so that the City of New Orleans can proceed to collect the municipal taxes in pursuance of the directions contained in Act 109 of 1882. For the parishes, other than Orleans, the rolls, by Act 98, are directed to be returned to the recorder of mortgages, sheriffs and the auditor as soon as practicable, but before the first day of September of each year.

The law does not declare at what precise time the tax is due, but makes it collectible from the date of the filing of the rolls. The date of the collection depends upon the energy and ability of the assessors to furnish copies of the rolls, and.this dates from any day between the closing and completion of the assessment to the last day provided for the filing of the same.

The tax is due, that is, the property assessed owes the tax, from the completion of the assessment on the 31st of March of each year as provided for by the Act 98 of 1886.

The last day for the filing of the rolls with the City of New Orleans and the Auditor of Public Accounts was fixed respectively the first day of May and the first day of July. The rolls ought to have been filed, in accordance with the provisions of the act, “ as soon as practicable,” and the delay of the assessors in performing their duty can not have the effect of relieving the property from the burden of taxation which the law had imposed;

When the rolls of the City of New Orleans aré filed with the Auditor, this, of course, authorizes the State Tax Collector to proceed to the collection of the State taxes as they are charged to him in the auditor’s office. Had the rolls been filed in accordance with law he would have been authorized to collect the tax after the first day of July.

He could have collected the tax had they been filed on any day be - fore this date after the completion of the rolls on the 31st of March. The tax is apportioned and extended on the rolls by the assessors, and the rolls, when completed and delivered, is the authority for the State Tax Collector to collect the tax.

As he could have done that at any time after the Slst of March, had the assessors filed the rolls with the Auditor, it is evident that the property was liable for the tax after the rolls had been completed, although the collection was postponed until they were filed with the Auditor and charged to the collector.

The promulgation of the adoption of the amendment was issued on the 12th of May, 1888, after the property had become liable to taxation by its assessment and the completion of the assessment rolls. The delay in delivering and filing the assessment rolls can not defeat the tax or change the status of the property as it was fixed on the rolls at the completion of the assessment.

The amendment to Article 207 of the Constitution did not operate retroactively and exempt the property for the tax which rested on it prior to its adoption. Stern’s Fertilizer Co., vs. City of New Orleans, 40 An. 697.

It is therefore ordered, adjudged and decreed that the judgment appealed be overruled and annulled and it is now ordered and decreed that there be judgment in favor of defendant dismissing plaintiff’s demand and dissolving the injunctions issued herein, with costs and 10 per cent, special damages as attorney’s fees.

On Application for Rehearing.

Had not the Revenue Act of July 12, 1888, been passed by the Legislature, no one -would contend that the constitutional amendment promulgated on May 12, 1888, would have operated to exempt plaintiff’s property from the tax of 1888, which had then been regularly levied under the act of 1886, duly assessed and was then duly collectible. To hold otherwise would be to give a retroactive operation to the amendment, which we have heretofore distinctly denied. 40 An. 697.

The claim of exemption from taxation for the year urged by plaintiff is, therefore, based, not on the constitutional amendment, but on the subsequent legislative act.

Nothing is better settled than that the Legislature is powerless, directly or indirectly, to grant exemptions from taxation.

This view is conclusive against the plaintiff’s pretensions.

Rehearing refused.


author: Bermudez, O. J,

text:
    No. 10,586.
    Benjamin Frelsen and Wife vs. Southern Pacific Company.
    In order to impose a liability on a railroad company, for the consequences resulting from the omission of an act by one of its employes the test is not: Whether,had the act been done, the accident would not have occurred; but whether, the act omitted was one which it was the duty of the employer to perform.
    A conductor, who is told by an ordinary passenger that he has heard an unusual loud noise and felt a jolt which has made the coach jump and aroused him and, who after reasonable inspection, inside and outside of the car, does not become conscious of a cause of alarm and danger, is not bound to stop the train for an inspection.
    His failure to do so, and consequent injury sustained thereby, to a passenger by the derailment and capsizing of the coach caused by the breaking of a wheel under a ear in front, is not such negligence as imposes on the company the obligation of indemnity for harm sustained.
    It is damnum absque injuria.

    King, J. PPEAL from the Civil District Court, Parish of Orleans.
    L. L. Levy for Plaintiff and Appellee:
    The carrier can not excuse a negligence, which caused the upsetting of a coach in a ditch, on a fanciful theory that if signals had been given and train stopped the coach possibly would upset in a coulee. Reynolds vs. Texas Pacific Railway, 37 A. R„ p. 694; 38 A. R. 118; 102 IT. S. R. 451.
    Where the carrier prepares models to illustrate and explain the accident, they should be complete. The journal box and the piece lost between the 134 and 135 mile-post should also be illustrated.
    Ordinary vigilance required the brakeman on the Teche to stop the train, and the conductor to have stopped train or gone through the several coaches after passengers’ statement. They were on duty, to act; their failure to act led directly to the accident and was negligouce.
    All appliances to protect life, supplied trains by common carriers, must be used the instant danger threatens. They are specially provided for emergencies, requiring “the most prompt and skilful use of all means in their power” for the safety of passengers. Thompson’s Carriers of Passengers, p. 200. 202, Sec. 4; (2) Expressions in Railway Cases.

      Leovy & Blair for Defendant and Appellant:
    1. When an accident has happened through the sudden breaking in two of a wheel, the railroad company relieves itself of responsibility to the injured passenger by proving that the breaking was due to a latent defect, which was not discoverable; that the wheel had been properly constructed of good material, and properly inspected and tested, and that, as far as human care and foresight could go, such an accident had been guarded against. I-Iutchinson on Common Carriers, Secs. 497, 508; R. R. Co. vs. Begges, 85 111. 80: R. R. Co. vs. Huntley, 38 Mich., p. 546.

      2. After this much has been proved the burden of proof is shifted to plaintiff to show that, notwithstanding the breaking of the wheel, the accident could have been avoided by the exercise of due care and diligence.
    3. The test of due care and diligence is not whether the trainmen omitted to do something they could have done, and which would have prevented the injury, but whether they did anything or omitted to do anything which, under the circumstances, in the exercise of ordinary care and prudence they ought to have done, and from which the accident proceeded. It must, also, affirmatively appear that the thing omitted to be done would have prevented the accident.

      i. Where the solo basis of liability is the omission to perform a certain duty suddenly and unexpectedly arising, there ought to be at least a consciousness of the facts which raise the duty on the part of the person who is charged with its performance, and a reasonable time and opportunity to discharge it. Patterson’s Railway Accident Law, p. Ill, Sec. 115.
   The opinion of the court was delivered by

Bermudez, O. J,

This is an action in damages for bodily injury unstained, in consequence of the alleged negligence of employés for. whose acts the def&ndant is liable.

The plaintiff complains that, on the 16th of January, 1888, at 4 A. m., while she was a passenger on a sleeper attached to a train of the company, a wheel from under a coach in front of that on which she was riding, broke; that her sleeper became uncoupled, derailed and capsized; that, in the upsetting she received two cuts above the knuckle bone from, the window glass; that she became unconscious, suffered considerably, was subjected to humiliations, had to take care of her injuries, was disabled for months and that scars remain and permanent disfigurement of her hand.

The charge is that the company failed to provide for careful servants, safe conveyance and to use extraordinary diligence in the management and running of the train; that the accident occurred through the defectiveness of the fastenings and lack of durable appliances in the cars and giving way of the trucks and other defects and acts of negligence in the direction of the train, and damages to the extent of $2500 are claimed as pecuniary compensation.

In defence, the company contends, that it did provide a safe conveyance with proper equipments, as far as it could do so, with the exercise of the utmost care and skill, and that the accident was solely due to a latent defect in a wheel, which no human care or skill could have detected or prevented.

From a judgment allowing plaintiff $750, defendant appeals.

The District Judge succinctly recites the following facts found by him:

“The cause of the accident was the breaking of the wheel at a point about 135 miles from New Orleans. It had been carefully inspected at Lafayette and showed no latent defects. The track was in good order. The train was properly equipped, the running gear and fastenings of the ear were in good condition. The train was not running at an unusual rate of speed. The wheel accidentally broke from some hidden defect or cause, which human care and foresight could not prevent.”

We concur in this finding, but differ from the reasons assigned conducive to an allowance of damages, in which our learned brother labors to show that the conductor did not, after the breaking' of the wheel, stop the train, and that, had he done so, the accident would not have happened and the plaintiff would not have been injured. Under this theory, we think, the duty of the conductor was extended too far.

There can be no doubt that, as it is shown, the wheel was manufactured in a proper manner by respectable manufacturers, and that like it, the axle was without blemish; that as no defect was revealed after the usual examination and test on the night of the accident and shortly before its occurrence, no fault could be imputed to the defendant, from which liability for the injury sustained could be attached.

Hutchinson on Com. Car. 497, 508; 85 Ill. 80; 38 Mich. 546-8; 14 N. Y. 481.

The plaintiff does not appear to contest the condition of things found by the District Judge or the law applicable to it; but her contention is that, as the conductor of the train had been seasonably warned by a passenger who had heard an unusual loud noise and felt a jolt which had made the coach jump, arousing him, and who had asked him to see about it, this official did not examine and stop the train, and that had he done so, he would have discovered the broken wheel, provided against the consequent danger and thus would have prevented the accident.

The law seems clear that, when the sole basis of liability is the omission to perform a certain duty suddenly and unexpectedly arising, there ought to be a consciousness of the facts which raise the duty on the part of the person charged with its performance.

Railways are not liable for a mistaken exercise of judgment on the part of their employés in an emergency, nor for a failure on the part of their servants to act with the utmost promptitude when the circumstances are such as to afford no time for deliberation.

Patterson’s Railway Accidents, p. Ill, Sec. 115.

In such cases, the party charging the omission must prove that the duty alleged existed, that the omission constituted a legal fault and that, had it been performed, the accident would not have happened.

The conductor, heard as witness, said that, upon the statement of the passenger, he immediately went back in the car, saw nothing unusual, stood on'the platform, looked outside and discovered nothing; that he'had just stepped into the second-class coach, when he saW the bell line jerk, and that he pulled the bell to stop; that he went back and got the passengers out of the car.

He also says that, in passing over a switch or a frog, a train makes a loud noise and that it is not an unusual thing for passengers to become alarmed and to report to him, in such cases, when there is no occasion for fear.

It is evident that, had the conductor stopped the train, when the passenger told him of what he had heard and felt, and had he looked into the exciting condition of things, he could have discovered the broken wheel, and the accident would not have occurred; but the question is not to be viewed in that light or from that standpoint.

The test of liability, in most cases, is not whether the conductor omitted doing something he could have done, and which, if done, would have prevented the injury; but, whether he abstained from doing anything which, in the exercise of ordinary care and prudence, he consciously oüght to have done and did not do, the omission of which caused the accident producing the injury.

The real and only question in the case is simply whether the conductor was conscious of the condition of things and was bound, on the mere statement of the passenger, to have stopped the train when he saw no occasion for it.

It appears from his statements and from the testimony heard, that he did not know that any accident had happened; that as soon as the passenger told him what he did, he took steps to inquire and ascertain, and afterward discovered no cause of apprehension. He was not therefore conscious.

There is nothing to show who that passenger was; whe.ther he belonged to the ordinary class of travelers, or whether he was an habitué or an experienced railroad man, to whose statements or warnings in such a case serious significance could be attached.

The proposition is inadmissible that, on the simple statement of any first coming passenger that he has heard a loud noise and felt a jolt, a conductor, who has not thus heard and felt, who after instant search and examination discovers no subject of apprehension, is bound to stop a train at night for special and thorough inspection of its different parts.

Were it so, there is no telling how often he would have to do so on the journey.

We are therefore of opinion that, as it was not, under the circumstances, the duty of the conductor to have stopped the train, the company is not responsible for his failure to have done so, and that the injury sustained is damnum absque injuria, particularly as it consisted, as the plaintiff herself declares, of fright and a slight cut.

It is therefore ordered and decreed that the judgment appealed from be reversed, and that there now be judgment for defendant with costs in both courts.


author: McEnbby, J. BreauX, J.

text:
    No. 10,571.
    Joseph P. Martinez and the State ex rel. J. P. Martinez vs. State Tax Collectors, etc., and City of New Orleans.
    Where property was adjudicated to the State under Act 96 of 1882, and afterward sold under Act 82 of 1884, the purchaser acquires title only when he pays the taxes due on said property and which he assumed. Until these conditions are complied with title remains in the State. The property, therefore, is liable to be seized and sold under Act 80 of 1888.
    Article 210 of the Constitution was not intended as a prohibition against the State purchasing at tax sales. It was intended to abolish the system of forfeiture for non-payment of taxes, in force before the adoption of said Constitution.
    Act 96 of 1888 is not in conflict with Article 210 of the Constitution.
    An adjudication of property to the State is not a forfeiture within the meaning of Article 210 of the Constitution.
    When a purchaser at a tax sale, in pursuance of Act 82 of 1884, assumes the payment of taxes in accordance with said act, he can not evade his obligations by contesting the validity of the assessment.
    When property has been adjudicated to the State, she can again sell the same, and impose her own conditions without restriction as to the price. When adjudicated at tax sale, she can, as a part of the price, stipulate that the purchaser shall pay all prior taxes due thereon. When sold in this manner, no plea of prescription can be urged against the taxes assumed by the purchaser.

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

      Harry L. Edwards and Jos. H. & J. Zaeh. Spearing for Plaintiff and Appellant: ' "
    1. The State having, in 1886 and 1887, sold certain property to Martinez, subsequent to an “adjudication” to herself, and having parted with all title and possession therein, to him, can not be heard or tolerated, in July and August, 1S89, as advertising and offering the same property for sale as her property (when in fact it was not) to others, under Act No. 80 of 1888, for the taxes of 1880 to 1884, as she had long since parted with her title, and the property was not adjudicated property. It is a mistake of her remedy, and of the law she should proceed under.
    2. The property having been the property of the State at the time of the sale to Martinez in 1886 and 1887, he took the said property free of all taxes up to the dates of his deeds, said taxes becoming extinct by confusion. She could have no tax, lien or assessment on or against her own property. It. S. 8233; 30 An. 432; Desty on Taxation, Vol. II, pp. 842, 784.
    3. An adjudication of property to the State, and a forfeiture of property to the State, are one and the same thing, and being forbidden by Article 210 of Constitution of 1879, which prohibits the forfeiture of property for the non-payment , of taxes, Section 52 of Act 96 of 1882, and Act 80 of 1888, which provides for the “adjudication” or forfeiture of property to the State, is unconstitutional Desty on Taxation, Vol. II, p. (783; 2_Bradw. 642; 18 S. C. 538; 15 Ohio 134; 8 Ohio 189; 2 Hawks 17.
    4. Tax liens and inscriptions, State and city, are prescribed by three and five years under the respective statutes.
    In the Stuart case, 41 An. 127, it was decided that Act 96 of 1877 applied to the city in the assessment and collection of taxes.
    That being the ease, Act 96 of 1877 having been repealed, if not by the Constitution of 1879, was certainly repealed by Act No. 98, Section 95, of 1886, and it is well settled that the repeal of a statute under which taxes are levied puts an end to the right to collect them. Desty on Taxation, Vol. II, p. 735; 77 Ind. 816; 2 Ind. 149; 22 Ind. 1.

      Felix P.’Poohé on same side,' on Application for Rehearing.

      W. B. Sommerville, Assistant Oity Attorney, and Garleton Hunt, City Attorney, for Defendants and Appellees:
    An assumption to pay taxes due by a third person is a valid contract which can be enforced, and a proceeding to collect them in the name of the original tax debtor is notice to all parties concerned. 41 An. 127.
   The opinion of the conrt was delivered by

McEnbby, J.

Under the provisions of Act 80 of 1888 the Tax Collector of the Second, Third and Fifth Districts in the parish of Orleans seized and advertised for sale certain immovable properties of the plaintiff and relator, described in his petition, for taxes due thereon, and which were assumed by him.

The plaintiff purchased the properties at tax sales made in pursuance of Act 82 of 1884. He enjoined the Tax Collector from proceeding with the sale of said property.

There was judgment dissolving the injunction withont damages, from which the plaintiff appealed.

There were several exceptions taken to the rulings of the District Judge in the admission of evidence. The objections in each case went only to its effect.

The reasons assigned for the writ of injunction are numerous. We will examine those that are serious:

1. The plaintiff alleges that the taxes, tax licenses, privileges and mortgages are prescribed by three and five years. There is no ground for the plea of prescription. The plaintiff assumed the taxes due on the property. They were a part of the purchase price. If any prescription attaches, is that of ten years.

2. Act 80 of 1888 is attacked as being in conflict with Article 210 of the Constitution. The reason for the unconstitutionality of the act is that the adjudication of property to the State is equivalent to its forfeiture, which is prohibited by said article.

The most conclusive answer to this proposition is the article itself. There is in the Constitution no prohibition on the State to purchase property, either at private, public or tax sale. The object of the Article 210 was to prevent the State from acquiring property for taxes by forfeiture. It changed the mode of enforcing the collection of taxes and provided for a direct seizure, without suit. The State is not prohibited from purchasing at tax sales in pursuance of said article.

• 8. It is urged by plaintiff that the adjudication to the State in pursuance of Act 96 of 1882, extinguished the taxes on said property by confusion, and that when the property was adjudicated to him under Act 82 of 1884, he acquired said property free from all taxes and tax incumbrances. 'Conceding that the taxes were extinguished by confusion when the State in the absence of bidders purchased the property.at the sale under Act 96 of 1882, no' reasons are urged, or can be urged, why the State, being the owner of the property, could not sell the same and fix the price and impose such conditions on the sale as she deemed fit and proper. There is no restriction that can be placed upon the conditions which she may impose upon the sale of her property.

In Act 82 of 1884, the State fixed the price of the property which had been adjudicated to her under Act 96of 1882. The price fixed by said act for said property was the extinction, by cash payment, of State, city, parish and municipal taxes due prior to December 31, 1879, with interest, costs and charges, and the assumption of all unpaid taxes subsequent to the 31st of December, 1879. The plaintiff bid in the property and agreed to pay this price as fixed by said act. We fail to perceive in what manner the Act No. 80 of 1888 conflicts with the Constitution of the State.

4. The plaintiff alleges that the taxes are illegal, null and void, as they were not assessed in the name of the owner.

Section 52 of Act 77 of 1880 is still in force, never having been repealed by subsequent revenue acts. Under this act the assessments were unaffected by the alienation of the property. The plaintiff is estopped from contesting the validity of the assessments. He assumed the payment of the taxes in the name of the person to whom the property was assessed. He purchased under these assessments. . He can not claim to be owner of the property and repudiate the title under which he claims.

5. The plaintiff alleges that the seizure and advertisement under Act 80 of 1888 is illegal, null and void, on the grounds that said act does not apply to property adjudicated to the State and afterward sold in pursuance of Act 82 of 1884. Where the parties who purchased property under said act complied with their bid, it undoubtedly has no application to the property so purchased. They obtained an absolute and perfect title as against the State. Act 82 of 1884 required the Tax Collector to sell the property adjudicated to the State with the assumption on the part of the purchaser of the taxes due. subsequent to 1879. The price of the adjudication was the taxes paid to 1879 and the taxes due on the property thereafter. No other interpretation can be given to the act. The sale was to be made for cash. The object of the act was to remake the taxes due on the property. It was not the intention of the Legislature that there should be a credit sale for any portion of the price, as no time is stated in which the credit portion is to be paid, and there is no mode provided for the enforcement of its payment. The Tax Collector had no authority to make an absolute deed to said property until the terms and conditions prescribed by Act 82 of 1884 had been complied with. The deeds to the plaintiff are only proceses verbal of the adjudication. No title passed to the plaintiff, or could do so until he paid the price of the adjudication. The title to the property therefore remained in the State, and the Act 80 of 1888 applies to all property adjudicated to the State which had not been disposed of or redeemed.

The plaintiff can only acquire title to the property adjudicated to him by complying with the terms and conditions of Act 82 of 1884.

The plaintiff enjoined the sale of property to which he had no. title. He knew that he had not complied with his bid. It was an attempt to get title to property without paying the price. We think this is a case in which damages should be assessed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to allow 10 per cent, as special damages for attorneys1 fees, and in all other respects it be affirmed.

Breaux, J., not having heard the argument, and the case having been submitted before he became judge, takes no part in this decision.

On Application for a Rehearing.

BreauX, J.

Plaintiff for a rehearing has reduced his grounds to^ three, in as many paragraphs. We paraphrase them as follows, viz:

1. That he can not be made to pay the taxes due on the property assessed prior to the 31st day of December, 1879.

The price paid by him operated as final discharge of all taxes due on the property prior to that date.

The inscriptions for taxes due to that date were canceled by 'the sale.

2. That there is error in holding that the validity and the legal effect of' the assessment which is the basis of the taxes sought to be enforced should be tested under the provisions of Section 52 of Act 77 of 1880.

That there was no warrant for the sale made to plaintiff but the Act 82 of 1884, etc.

3. He alleges further that his bid made Mm the absolute owner of' the property.

He took the property burdened with the taxes due since the 31st-December, 1879, but that he was not bound to pay at the date of purchase, his contract being to assume and take the property subject to all unpaid taxes on the “same, subsequent to December 31, 1879.

That he acquired a perfect title, and such ‘ taxes as may be against him under his contract form part of the unpaid purchase price for which the State has a vendor’s lien on the property, which may be enforced, as such, but not summarily as taxes, and above all, under the provisions of Act 86 of 1888, which apply exclusively to •property adjudicated to and not otherwise disposed of by the State.”

That the property having been disposed of can not be sold under the law authorizing the sales of property adjudicated to the State for taxes.

1. The first ground is at once disposed of without discussion, for it does not admit of any.

Without changing the conclusions of this court or the decree heretofore made, we will state that the defendant claims taxes from December 31, 1879, and that under the plain letter of Act 82 of 1884, the taxes from December 31, 1879, are due by the plaintiff and not the taxes assessed, prior to that date, as plaintiff alleges and apprehends.

2. Whether or not the legal effect of the assessment upon which rests the authority to enforce the payment of taxes should be tested under the provisions of Section 52 of Act 77 of 1880, has no important bearing.

The plaintiff bought the property as assessed. He can not successfully question its legality.

The State, to collect the taxes due, divested the tax debtors of their ownership of this property and has given to plaintiff the opportunity to become the owner, of which he availed'himself.

He does not contend that this assessment is not sufficiently legal to enable him to hold the property as against the former owners.

He does not allege that he fears eviction and that he will be made to loose the property on account of any illegality.

If a vendor seeking to realize a balance unpaid of the purchase price is opposed with the objection that there is a defect in the title, but no allegation is made to the effect that the defect will give rise to any claim, the vendee will, not be permitted to defeat the vendor’s claim and privilege on technical grounds serving no purpose but pleaded only to escape payment.

The illegality,, per se, is of no moment if a right is not asserted against the title.

If no right is claimed there can not be any issue.

The former owners having no claim on that ground, 'it not being permitted for the State to set up any, predicated upon an illegal assessment, and as the present plaintiff contends that he' is the legal owner, questions with reference to illegal assessment can not arise.

8. The third ground contains the proposition upon which plaintiff relies to be relieved from the payment of the taxes he has assumed to pay.

He is the owner, is the burden of his pleadings, but suggests that he owns subject to a vendor’s lien.

When the property was adjudicated to him he assumed the taxes assessed since 1879.

The “purchaser shall, however, assume and promise to pay, and shall take said property subject to all unpaid taxes.” Act 82 of 1884.

He is now pleased to contend that he should be decreed to be the owner of the property, and that the remaining price unpaid is secured by a lien.

As a man binds himself so must he be bound is a principle from which he seeks to be relieved, by contending that he owes an amount which is secured by a lien..

We do not deny that the remainder is the unpaid purchase price, but none the less, taxes which the purchaser assumed and which are secured as to their payment, as taxes are secured under the provisions of law.

We will not undertake to change a tax indebtedness to a nondescript claim and an uncertain privilege, such as plaintiff would allow.

Taxes are positive acts of the government. They are not a debt. Desty, p. 9.

Properties were adjudicated to the State. The only purpose of the ownership was to secure the payment of the taxes.

In adjudicating the property to the plaintiff the State can not be held to have defeated the object in view; to have abandoned the purpose of the divestiture of title; (i. e., the collection of taxes) and to have relinquished any remedy for their collection.

“ The taxing power is inherent in every sovereignty, and there can-' be no presumption in favor of its relinquishmenr, surrender or abandonment.” Desty, p. 79.

The whole community is interested in retaining the power of taxation undiminished, and it has a right to insist that no abandonment shall be presumed in any case where the deliberate purpose does not appear.

It is never presumed to be relinquished, unless the intention to. relinquish is declared in clear and unambiguous terms.

“It cannot be presumed to be abandoned, surrendered, except by clear words and for legal and adequate consideration.” Ib.

The plaintiff can not successfully assume the attitude of an adjudieatee, and the rights of perfect ownership, without having complied with all the terms of his bid.

Much less can he, by thus assuming, defeat the State in the collection of taxes, and in carrying out the policy that ■ the ‘ ‘ common burden must be sustained by common contributions.”

There is no difference in reality about the liability; the question relates particularly to the remedy to enforce payment.

It is objected that collection can not be made by execution, and in accordance with the summary process provided for the collection of taxes.

“ The power to assess and collect taxes implies the power to enforce their collection by execution.” Desty, p. 82.

“But where the language will permit, statutes relating to taxes shall be so construed as to give effect to the obvious intention and meaning of the Legislature rather than to defeat that interest by a too strict adherence to the letter.” Ib.

“ The sovereign right to levy and collect taxes grows out of the paramount necessity of the government, an urgent necessity which admits no property in the citizen while it remains unsatisfied.” Ib., p. 51.

The taxes are due on the property. .

The Constitution and all other laws on the subject provide a summary process for their collection.

Let us suppose that the portion paid of the purchase price had not been paid, the State would have the right to have the property-seized and sold under the summary tax collecting process.

If this would he true of the amount paid, if it had not been paid, it is correct interpretation as to the amount assessed.

The State remains the owner only to carry out the intention of the Legislature, and to collect the taxes due.

We are referred to the cases in re Orloff Lake, 40 An. 148, and of in re Douglas, 41 An. 768, as decisive authorities in this case.

For the sake of some brevity, we make a summary of the issues in the first.

Nullity is pleaded. Insufficiency and illegality of .the assessment. Want of notice.

Act 82 of 1884 is unconstitutional.

The property never was adjudicated to the State. It was advertised for sale to enforce the payment of delinquent taxes, but contrary to the provisions of said act, as it only provides for the sale of property that had been previously adjudicated to the State. On the part of defendant, the plea of no cause of action was filed. Among the defences interposed is the following:

5. “That all of the prerequisites of the law were complied with by all the officers from the assessment up to and including the execution and registry of the deed of said purchaser.

“If only a portion of the taxes for which the property is sold are proved to have been paid, the sale and title to the purchaser shall nevertheless be good and valid the same as if all the taxes for whiph it is sold had not been paid.

“The court held as follows, viz: ‘We think the law is constitutional, and the exception of no cause of action should have been ■sustained.’ ”

In this case, as well as the case in re Douglas, it is decided that the tax sale under Act 82 of 1884 is conclusive as against the former ■owner, hut the right of the State to recover the unpaid taxes was not considered. No such issue was presented, and therefore these cases have not the authoritative bearing the plaintiff is pleased to contend they have.

The tax has remained unpaid these many years. The ordinary process has not brought about a settlement.

A warrant to enforce compliance or a sale is legal.

Should he comply with the law, the sale as between the State and the plaintiff will become as absolute as it is now between the plaintiff and the former owner.

Rehearing refused.