author: Fenner, J.

text:
    No. 10,693.
    L. S. Harrison & Bro. vs. Their Creditors.
    1. A previous appeal having been taken in tlie same cause, it is not necessary on a second appeal to copy the matter already embodied in a transcript on file in this court, but the clerk’s certificate that the new transcript, “ together with the transcript of appeal in this case already on file in the Supreme Court,” do contain, etc., will be sufficient.
    2. When the minutes show that the cause was submitted “after hearing pleadings, evidence and counsel,” and when the judgment recites “considering the law and evidence to be in favor of plaintiff,” etc., and when the transcript presents no evidence and no note of evidence, the court must presume that the judge proceeded on proper evidence.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J. ■

      H. C. Cage for the Syndic, Appellant.

      Ernest T. Floranee for Opponent and Appellee.

      W. »S'. Benedict, on Application for Rehearing, for Appellant.
   The opinion of the court was delivered by

Fenner, J.

Counsel for appellee treats this appeal as if there were nothing before us except the brief transcript filed herein. In this he errs. The certificate of the clerk is to the effect that this transcript, “together with the transcript of appeal in this case already filed in the Supreme Court,” do contain, etc. There was no necessity for a recopying of the matters already embodied in a .transcript on file in this court under an appeal previously taken in the same cause. Vredenburg vs. Behan, 32 An. 561.

But this does not help the case of appellant. The matters referred to by his counsel as contained in the former transcript, though within our cognizance, have no conceivable relevancy to the subject matter of this appeal, which involves nothing but the correctness of the judgment rendered on the opposition of John R. Picton, and appointing him syndic of the insolvents. The proceeding referred to took place on February 28, 1890, when the opposition of Picton was not on trial, and concern entirely different issues. The record shows that the opposition was fixed for May .21, 1890, and was then tried and submitted, all parties being duly represented.

The minutes show that it was submitted “after hearing pleadings, evidence and counsel.” The judgment recites, “Considering the law and evidence to be in favor of opponent,” etc. The transcript contains no evidence, and no note of evidence. If there were anote of evidence, and the evidence did not appear in the record, the clerk’s certificate might protect appellant against an apparent diminution of the record, which might be supplied under certiorari. But the decisions.are uniform that where no note of evidence appears in the record, the court will presume that the judge proceeded on proper evidence. Heffner vs. Hesse, 26 An. 148; State vs. Monasterio, Ib. 734; State vs. Campbell, 23 An. 446; Simmons vs. Howard, Id. 504; Bank vs. Bringier, 22 An. 118.

Judgment affirmed.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 10,768.
    The State ex rel. Jules C. Denis et al. vs. Joseph A. Shakspeare, Mayor.
    1. A right to office can not be said to be involved in a mandamus proceeding which has tor object the revocation of an alleged illegal order of removal of certain police commissioners of the City of New Orleans, and in which the Mayor is made the respondent. An appeal taken from a judgment therein rendered is not returnable within ten days, under the provisions of Section 7 of Act 45 of 1870, extra session.

      2. As, under tlio terms and provisions of Act 156 of 1888, the police board is composed of six commissi oners, four of whom arc necessary to constitute a quorum for the transaction of business, and all vacancies which are occasioned in said board by death, resignation or removal from oflice must bo filled by the board for the unexpired terms of such commissioners; and as four of the six commissioners, alleging themselves to have been illegally removed by the Mayor, whereby a quorum is broken, and. their vacancies can not be filled by said board, and it can not receive or disburse an .appropriation of $185,000, already made, for the benefit of the police department, unless the illegal act of the Mayor is annulled and revoked, for which relief they pray, this court has jurisdiction raiione materia

    8. (¿rounds assigned in the District Court, for the want of authority in the judge thereof to entertain jurisdiction of and to decide a case before it", are, if sustained therein, not proper grounds tobe assigned in this court for the dismissal of an appeal therefrom, though they might be for the affirmance of said judgment.
    1. Mandamus may be directed to corporations established by law, to compel them to receive and restore to their functions such of their members as they shall have refused to receive, and whom they shall have removed without sufficient cause.
    2. The District Courts have jurisdiction and power to examine into and decide whether an officer of a municipal corporation has been removed from office, on charges that are sufficient in law to warrant removal proceedings, and whether the proceedings have been legally conducted, in case the law authorizes a removal, only for due cause.
    8. The provisions of Section 4 of Act 68 of 1888 do not contravene-Articles 92,196 and 200 of the Constitution, or either of them.
    4. During tliependeney of a mandamus proceeding, to test the validity of an act of removal from office of relators, by the Mayor, commissions intermediately issued to other persons, can not be given the effect of extinguishing relator’s cause of action.
    5. In case charges have been preferred against several municipal officers at one and the same time, who are tried together, and are removed from office by one and the same order, they h'ave sufficient identity and mutuality of interest to authorize them to be joined as relators in one and the s&memandamus proceeding.
    6. If, xxpon an examination of the charges which are preferred against certain police commissioners, it is found that they do not, in law, amount to malfeasance in office, the order of the Mayor or of the City of New Orleans removing them from office will be revoked, and they will be restored to their functions aud franchises.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

    • F. P. Poché, E. W. Huntington and J. Huma Augustin for the Relators and Appellants:
    The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. Marbury vs. Mason, 1 Crancli, 168.

      All courts shall be open and every person for injury done him in his rights, lands,, goods, person or reputation, shall have adequate remedy by due process of law, and justice administered without denial or unreasonable delay. Con. of’ La., Art. 11; State ex rel. Mayor vs. Judge, 35 An. 637; Gas Company vs. Gas Company, 27 An. 138.
    The power conferred to the mayor of a city to remove certain officers for certain enumerated cause, and after hearing evidence, is not an absolute or discretionary power. In such a case the mode and form of proceeding, rulings on points of law, and the sufficiency in law of the charges brought, are liable to judicial review, and mandamus is the proper remedy therefor. O. I\, Art. 835, 6La. 595; 5 Martin 271; High Extr. Leg. Kemedies, Sec. 69; Dillon Mun. Corp.,, Sec. 255; 9WÍS.254; 15 Pa. Stat. 251; 32Ind.74; 1 Dutcher 536; 21 Fla. 652; BHenning and Mumford, p. 1.
    Pending an issue in court involving the question of a vacancy vel non in an office, no valid appointment can be made to such an office. In a mandamus proceeding the respondent can not inject in his return an issue foreign for the end for which the writ applies. 29 An. 401. Officers who hadbeen removed by one and the same judgment, under one and the same charge for one and the same offence, can and must join in an action intended to annul the judgment of removal.
    The Mayor of New Orleans cannot constitutionally bo clothed with judicial powers other than as a committing.
    In proceedings for á motion the accused must have a reasonable time to prepare their defence. Dillon, Sec. 250. And all witnesses in the matter should bo sworn. High, Sec. 68.
    Mere error of judgment by a corporation doing acts ultra vires is not malfeasance^

      W. B. Sommerville, Assistant Oity Attorney, and Carlton Sunt,. Oity Attorney', for the Respondent and Appellee:

    In a proceeding by mandamus to compel the Mayor of the city of Now Orleans to rescind the order made by him to remove relators from the office of Commissioners of the Police Board of the oity of New Orleans, the Civil District Court for the parish of Orleans is without jurisdiction ratione material and personen. Con., Art. 11; 15 Peters 449; 24 An. 214; 34 An. 735; 35 An. 639; 2 An. 543; 2 La. 395; 38 An. 923; 40 An. 852 ; 39 An. 765; 19 An. 210; 26 An. 120; 29 An. 243 ; 33 An. 446 ; 34 An. 280; 7 M. N. S. 1; 35 An. 1082; Law Reporter for 1883, No. 15; 35 An. 934.
    The petition of relators sots forth no cause of action for a mandamus. C. P., Arts. 867-869; High on IDxtr. Leg. Remedies, Sec. 67; 5 M. 271.
    The Governor having, in conformity with Articles 258, 72 and 69 of Constitution,, and with Section 2606 of the Revised Statutes of 1870, filled the vacancies in the Police Board created by the removal of relators, their petition, which alleges that there are vacancies in the places of Commissioners of the Police Board,, gives them no cause of action. Con., Arts. 258, 61 and 72.
    The relators having been appointed for sepaz’ate terms and sevez-ally Police Commissioners, cannot be joined in one action against respondent. 12 An. 74; 14 An. 177; 39 An. 1031.
    Under Section 4 of Act 63, the Mayor only has the right to call meetings of the-Police Board. The calling of the meeting by the president pro tem. of the board is an act of malfeasance.

      The adoption subsequently at a regular meeting oí the Police Board of the minutes of the meeting precedently held and irregularly called is likewise an act of malfeasance on the part of the commissioners taking part therein.
    The assumption by the president pro tcm. in the presence of the Mayor of the right to put the vote on the adoption of the minutes is malfeasance also.
    What malfeasance is, was stated in the Lazarus case. Corrupt motive is not required to be present to constitute malfeasance. Malfeasance is “ evil doing, ill conduct, the doing of what ought not to be done.” 6 Met. Bep. 840; 12 Mot. Bep. 112; 39 An. 142; 1 Bay 356; 2 Bay 106.
   On Motion to Dismiss.

The opinion of the court was delivered by

Watkins, J.

Condensed, the several grounds assigned for the dismissal of the plaintiffs’ appeal are:

1. That, this suit involving a right of occupancy and enjoyment of a public office, the appeal should have been made returnable to this court within ten days from the date of the judgment appealed from, whereas the order of the court a qua made it returnable on the first Monday of November, 1890, long after the expiration of that delay.

2. That this court is without jurisdiction of this cause rations materise because there is not involved therein an amount or matter in dispute in excess of $2000.

8. The alleged removal of relators having been effected under the authority of Section 4 of Act 68 of 1888, duly authorizing such a removal for specified offences and without subjecting the respondent’s act in such case to judicial control, courts are without authority in the premises; and therefore this court is without jurisdiction to render any judgment in this cause.

I.

Section 7 of Act 45 of 1870, Extra Session, is invoked as the law controlling appeals to this court, in cases like the present one.

That act regulates, amongst other things, appeals to this court. The section relied upon by counsel for the respondent is couched in these words, viz:

“That in all eases in which the right to office is involved, and an appeal is taken from the judgment of the lower court, it shall be returnable in ten days after judgment of the lower court,” etc. (Italics are ours.)

The question then is, whether there is, in this suit, a “right to office” involved; for, if there is not, the appeal was properly made returnable here, under Section 1 of that act.

A right to office can be said to be involved in a suit, only when there is a contest in respect to the title to an office. The law has made special provision for such contestations, in the intrusion into office statutes, which have been, from time to time, enacted.

One was enacted in 1868, which declared that an action may be brought by the Attorney General, or a district attorney, in the name of the State, against any person “who shall usurp, intrude into, or unlawfully hold, or exercise, any public office or franchise within this State," etc. Sec. 1, Act 58 of 1868.

It further provides, that whenever the defendant in such suit shall be adjudged “guilty of usurping, or intruding into, or unlawfully holding any office, franchise, or privilege, judgment shall be rendered, that such defendant be excluded from such office, franchise, or privilege,” etc. (Our italics.) Ibid. Section 10.

Sections 1 and 10 of Act 156 of 1868 are the same as those of the cited sections of Act 58.

These intrusion-into-office statutes furnish an only and exclusive mode of removing an intruder from “ any public office or franchise in this State; ” and it is in this mode alone that a disputed title to a “public office or franchise” can be tested; and it necessarily follows that only in such a suit can a “ right to office be involved.

An intrusion-into-office suit must be brought against the person intruding into the contested office. This is essential.

The ease before us is not such a suit, as the petition contains no averment that any one has unlawfully intruded into, or has attempted to intrude into, the offices to which relators respectively allege themselves to be entitled. It is strictly and technically a mandamus proceeding, taken, on the part of the relators, against the respondent in his official capacity as Mayor of the Oity of New Orleans, in which the relators allege themselves to be police commissioners, duly appointed by competent authority, and to have ■been unlawfully interfered with in the exercise and performance of the duties and functions thereof by the respondent; and demand the revocation of his' order in the premises, and the restoration of the status quo.

The prayer of the petition is as follows, viz:

“ Wherefore, relators pray that a writ of mandamus issue directed to Joseph A. Shakspeare, Mayor of the City of New Orleans, ordering and commanding him to rescind the order made by him of the 7th of July, 1890, purporting to remove your relators and restore them to their respective offices and functions, or to show cause to the contrary.”

We think it is manifest that this is not a suit “in which the right to office is involved,” in the sense of the law of 1870, and that the appeal of relators was properly made returnable here on the first Monday of November, 1890, as it was.

II.

Has this court jurisdiction rations materise? As we have just ascertained that this is not a suit in which a right to office is involved, it does not appear to be a jurisdictional question whether or not there is any pay, compensation or salary attached to the offices of police commissioner. But as we have shown in the preceding paragraph, the gravamen of relator’s complaint is the nullity of respondent’s order of removal and the consequences thereof.

The averments of the relator’s petition are substantially to the effect that, as, under the statutein question, the police hoard it composed of six commissioners, four of whom are necessary to constitute a quorum for the transaction of any business; that all vacancies occasioned in the board_ by “ death, resignation or removal * * * shall be filled by said board for the unexpir.ed terms of said commissioners;” that by the respondent’s act, if it should not be revoked, in the attempted removal of four of the six commissioners, the autonomy of the board would be destroyed, and it rendered incapable as such of filling the vacancies caused by their removal; and that the law creating the board would be, in effect, paralyzed by the respondent’s act. Hence, the relators, composing a majority of the commissioners, have a right and an interest in maintaining the law in its integrity, and in keeping it in force and in putting its important machinery in motion.

Their petition, then, specifically charges that “ by his aforesaid arbitrary conduct the said Mayor has effectually paralyzed for nearly three years the execution and the operation of said act by the Legislature, and will successfully suspend for that length of time the effect of and all obedience to the decision of the honorable the Supreme Court of Louisiana, rendered in the case entitled ‘The State ex rel. Nicholls, Governor, et al., vs. Joseph A. Shakspeare, Mayor, et al.,’ reported in 41st of Annuals at p. 156.”

The whole question may be summarized thus: That the action of the respondent has by the removal of four members of the board at one time left it without a quorum; that the vacancies can not be -filled “ by said board” for the unexpired terms of the removed commissioners, and the whole machinery of the police department will be for the full period of three years left at a standstill.

From this condition of things it is alleged that serious consequences will flow to the city and to the public service. For instance, that •during the interregnum thus created in the administration of the police department “no city or other officer will have a legal right to receive and disburse the sum of §180,000 appropriated for the police department by the City Council for the current year; and that the appropriations to be made for the same purpose for the years 1891 and 1892 may not be less than $150,000 for each of said years,” etc.

The object of this suit is to have the acts of the Mayor in thus attempting to paralyze the Police Board and thwart the execution of the police statute declared illegal, and the relators restored to the full exercise of their franchises, one of which is the receipt and disbursement of the existing appropriation of $185,000 in behalf of the police department, and which can not be legally received or disbursed by any other officer or authority in the meanwhile.

At this juncture we can not say — are not called upon to decide— whether the actual condition of things is as it is alleged to be, but whether the alleged condition of things confers jurisdictipn on this court to so decide.

These' averments are substantiated in law, for Section 2 of the statute under consideration provides “that said commissioners shall be elected by the Oommon Oouncil of the city of New Orleans, two for the term of four years, two for the term of eight years, and two for the term of twelve years.” It further provides that, “ in ease of death, resignation or removal from office of any of said commissioners, the vacancy shall be filled by said board for the unexpired term of said commissioner; and upon the expiration of the terms oí such commissioners, the offices shall be filled- by election by said Common Council for a term of twelve years, as above stated.”

Section 3 provides that “not less than four commissioners shall constitute a quorum.” It thus appears that a vacancy occasioned by the removal of a commissioner from office “ shall be filled by said board,” but when a vacancy occurs by reason of the expiration of a-commissioner’s term of office, it “ shall be filled by election by the Common Council.”

There was manifestly ample warrant in the statute for the averments that were made, viz: That Oy the action of respondent in removing four commissioners at one time the board was left without a quorum; that without a quorum the board could take no action in respect to filling the vacancies occasioned by relators’ removal; and that the Common Council was without power to fill said vacancies.

It being averred, as a matter of fact, that there had been already made by the Common Council an appropriation of §185,000 for the police department, the absence of a quorum of the board precluded its receipt or disbursement. On this hypothesis the alleged interregnum was complete, and the affairs of the police board were effectually brought to a standstill. It is obvious that relators have, as a majority of said board, and representing a quorum of its members, an actual, present interest in putting the machinery of the law in motion, to the end that the large appropriation already made may be received and disbursed to the police force of the city.

In State ex rel. Nicholls, Governor, vs. Shakspeare, Mayor, 41 An. 156, the jurisdiction of this court was upheld and maintained, on the ground that the enforcement of the law contemplated an ultimate appropriation of §150,000 per annum for the alimony of the police force, although there was then no board in esse, and no fund for disbursement in existence. For a very much stronger reason should the jurisdiction of this court be maintained in the instant case on the averment that the Mayor’s illegal acts threaten to emasculate the existing board of all authority to act, and thus annihilate it and prevent the receipt or disbursement of an existing appropriation of §185,000. The issues presented in this case are substantially the same as those in the Nicholls case.

This court has appellate jurisdiction of this cause ratione materise.

HI.

The third ground assigned for the dismissal of the appeal is essentially the same, in purport if not in terms, as the exceptions which were urged in the court below, against its authority to grant the relief prayed for; and same were, on the trial, sustained in the court below. In his reasons for judgment the judge a quo says, after making a statement of the case:

“There is no provision in Act 63 of 1888, or elsewhere in the law of this State, which subjects to judicial review or control this power of removal which said Section 4 confers upon the Mayor.”

He then gives a résumé of authority on the question, and concludes thus:

“From these authorities I conclude that the power conferred on the Mayor by said Section 4 of the Act of 1888 is absolute, and that his act in removing the relators can not be questioned or interfered with by the courts, unless, as the relators contend, that section isviolative of the organic,law, and ergo void.”

Taking these reasons as the foundation of his judgment, and,, necessarily, an appeal therefrom presents the question of the correctness of the judgment. Therefore, while, as matter of law, the-exceptions tendered may have been good and properly sustained in. the court a qua, same may, on appeal, be considered and found sufficient for an affirmance of the judgment appealed from; yet it is a non sequitur that they furnish grounds for the dismissal of the appeal. For in order to determine that question we must, of necessity, assume jurisdiction of the cause. The appeal invites this court to decide that the District Court erred in sustaining those exceptions, and appellee meets this invitation with a motion to dismiss the-appeal, because the District Judge properly sustained them. Obviously, this court can not, in the exercise of appellate jurisdiction, make any order or render any judgment other than such order or decree as the judge below should have rendered. An appellate court exercises just such power as the court of first instance possessed, but in a different way; and the fact that the court below exercised it properly is no ground for the dismissal of the appeal, while it is fdrthe affirmance of the judgment.

This ground furnishes no cause for the dismissal of the appeal.

Our conclusion is that none of the objections are well taken, and that same should be overruled.

And it is so ordered.

Mr. Justice Breaux concurs in the decree.

On the Merits.

In our recent opinion in this cause, on motion to dismiss appeal, we found it necessary to make a concise synopsis of relators’ cause of action, and it may be thus paraphrased:

As strictly and technically a mandamus proceeding taken on the part of the relators as members of the Board of Police Commissioners of the city of New Orleans against the respondent in his official capacity as Mayor of the city of New Orleans, alleging themselves to have been unlawfully interfered with in the exercise and performance of the duties and functions of their said offices and franchises by the said respondent; and they demand the revocation of the respondent’s order in the premises and the restoration of the status quo as it was when his illegal order was made and promulgated; and they especially pray for the rescission of his order of date July Y, 1890, purporting to remove them from their said offices and functions, and for their restoration thereto.

As a foundation of their complaint, relators charge that as under the statute creating the Board of Police Commissioners it is composed- of six commissioners, four of whom are necessary to constitute a quorum for the transaction of any business; that all vacancies occasioned in the board.by death, resignation or removal of any of its members shall be filled by said board for the unexpired terms of such commissioners; that by the respondent’s act in the attempted removal of four of the six commissioners at one and the same time the autonomy of the hoard would be destroyed, and it rendered incapable of filling the vacancies caused by said removal; and that the law creating the hoard would be in this manner and in effect paralyzed by the respondent’s act.

Hence they allege that they have an interest, as a majority of said commissioners, in the maintenance of the law in its integrity, and in keeping its important machinery in motion.

The object, primarily, of this proceeding is to have the acts and orders of the respondent Mayor declared illegal and void, and the relators restored to the full and complete exercise of their franchises and functions, as members of said Board of Police Commissioners.

The authority for the acts and proceedings of the respondent rests upon the provisions of Section 4 of Act 63 of 1888, it being “ an.act 'creating a police board for the City of New Orleans, and defining its powers.” That section provides that the persons severally appointed commissioners of the police board * ■* * may at any time be removed by the Mayor of the City of New Orleans for high crimes, malfeasance, or misdemeanors; for incompetency, for corruption, favoritism, "extortion, or oppression, or for gross misconduct, or habitual drunkenness; provided, that in all cases where charges are made against a commissioner, he shall have an opportunity to present evidence in his behalf.”

The grounds on which the relators charge that the respondent’s acts are null and void are:

1. That the quoted section of the said statute vests, or attempted to invest, the Mayor with judicial functions in violation of Article 92 of the Constitution; and that said section of the statute further violates Articles 196 and 201 of the Constitution, in that it proposes to regulate the mode of removing municipal officers, contrary to and diametrically in contradistinction of, the mode therein required.

2. That relators were denied reasonable time to prepare their defence to the charges preferred.

3. That during the progress of their trial various witnesses were heard without being sworn as the law requires.

4. That the charges preferred against them do not in law amount to malfeasance in office.

To the relators’ petition respondent urges several exceptions, viz:

1. That the Civil District Court is without power to issue the writ of mandamus, because the law has vested that court with no jurisdiction in the premises, and the act of the Mayor is final and not subject to judicial review.

2. No cause of action.

3. That relators’ right of action has been abated and extinguished by the issuance of commissions by the Governor to other parties in their places and stead.

4. Misjoinder of parties.

Cumulated with these exceptions is an answer, in which the regularity and legality of the Mayor’s acts are averred.

A trial was had on these pleadings and issues, and the judge a quo, concluding that neither the police statute nor any other law of this State “ subjects to judicial review or control ” the Mayor’s power of removal, declined to take jurisdiction of the cause and sustained respondent’s first exception.

But the case was tried upon its merits as well as upon the exceptions, and upon a full review of all the testimony offered pro and c on. by the parties. Erom the judgment thus rendered the relators have appealed; and the whole case is before us.

I.

This suit is an original proceeding, instituted in the only competent court of mñginal jurisdiction known to the Constitution and laws of this State wherein the' issues involved could be judicially inquired into and determined; and Article 201 of the Constitution declares that ■“ for any of the causes enumerated in Article 196 district attorneys, clerks of courts, sheriffs, coroners, recorders, justices of the peace, and all other parish, municipal and ward officers, shall be removed by judgment of the District Court of the domicil of such officer ” (in the parish of Orleans the Civil District Court), etc.

The provisions of Article 196 of the Constitution being identical with those of the quoted section of the police statute, it would seem reasonable that the Civil District Court should have, primarily, jurisdiction to try a suit for the amotion of such municipal officers as the relators are.

But the respondent’s contention is, that the police statute having conferred upon him, as the Mayor of the city, the jurisdiction and authority to entertain such charges against Police Commissioners,, that same is necessarily complete and exclusive; and for the same reason the Civil District Court is divested and deprived of jurisdiction to judicially “ review or control ” the Mayor’s action in the premises.

If at the threshold of the discussion it is to be conceded that the quoted section of the police statute is constitutional, and that the charge of malfeasance in office against the relators was well grounded in law and fact, it would not be a difficult matter for us to reach the same conclusion at which the District Judge arrived; but the insistance of relators’ counsel is that the police statute is unconstitutional, and therefore the respondent’s proceedings were void; and if the statute be constitutional, yet his order of removal is absolutely void, for the reason that no act of malfeasance was charged against them.

It would be a strange anomoly indeed if four of the six Police Commissioners could be condemned without a hearing, found guilty under an unconstitutional statute, and ejected from office summarily and without proof of any malfeasance in fact or in law, and no court could be found possessed of competent authority to inquire into the matter and rectify such unwarrantable abuses of the rights and franchises of citizens.

But we consider it an elementary principle of law that all corporations, whether municipal, political or private, are in all their proceedings subjected to judicial control, just as private individuals are; and we understand that this principle is enunciated in the 835th Article of the Code of Practice, which declares that mandamus “ may be directed to all corporations established by law * * * to compel them to receive or restore to their functions such of their members as they shall have refused to receive, although legally chosen, or whom they shall have removed without sufficient cause.”

That such is one of the primary objects to be attained by mandamus under the law of Louisiana readily appears from a casual perusal of the 829th Article of the Code of Practice, which declares that it “ is an order issued in the name of the State by a tribunal of competent jurisdiction, and addressed to an individual or corporation * * * directing it to perform some certain act belonging to the place, duty or quality with which it is clothed.”

Now, if it be a fact established that either the police law is unconstitutional, or the respondent’s act was and is otherwise illegal and void, is it not “ a duty or quality ” with which the Mayor is clothed, as the representative of the municipal corporation of the city of New Orleans, to restore the relators, whom he has “removed without sufficient cause,” “ to their functions?”

And if this proposition be conceded, is not the Civil District Court a competent tribunal in the sense of the Code of Practice to grant the order and try the issue presented?

Quite a similar contention arose, and was carefully examined and decided by this court in State ex rel Mayor vs. Judge, 35 An. 637. In that case the question was whether the District Court of Ascension had jurisdiction to coerce by mandamus certain election officers to hold a municipal election in the town of Donaldsonville; and we maintained its authority in the premises and held:

“ If the District Court has not jurisdiction to enforce the rights claimed by the plaintiffs in the suit under consideration, no court, has such jurisdiction, and we would have presented the case of a well recognized legal right without a remedy. Article 11 of the Oonstitution provides that ‘ all courts shall be open, and every person, for injury done him in his rights, lands, goods, person or reputation, shall have adequate remedy by due process of law, and justice administered without denial or unreasonable delay.’ In ■construing the constitutional definitions of the original jurisdiction of courts, we must be guided by this article; and when we find that, under our system of law, there has existed an ancient and established remedy for the enforcement of a rec.ognized legal right, which is the only adequate remedy, we will not construe the jurisdictional provisions of the Constitution, as having effect to take away ■such remedy, and to leave the right remediless, by any mere implication, however strong,
“Our Code of Practice confers upon courts * * * the power to issue writs of mandamus addressed to public officers or corporations directing them to fulfil duties and specially ‘ to all corporations established by law, to compel them to make elections required by ■their charter. C. P., 829 to 836.
“It provides that ‘the object of the order is to prevent a denial ■of justice,’ and that ‘ it should be issued in all cases where the law has assigned no relief by the ordinary means and where justice and reason require that some mode should exist of redressing a wrong.’ ■C. P.”'

Thereupon the court propounded this question: “Can we hold ■that other Articles uf the Oonstitution have, by implication, taken away the jurisdiction of every court” (the italics are ours) “to enforce such a remedy, and thus left the citizen without any mode of redress for such an ‘ injury to his rights?’ and answered it in the negative.”

In the instant case we are even asked to go further, and say that the Civil District Court had and has no jurisdiction or constitutional authority to grant relators relief by the same “ancient and established remedy ” of mandamus, to which we gave effect in that case, because, say the respondent’s counsel, it was in effect taken away by the police statute — the final and ultimate power having been conferred upon the Mayor, and none conferred upon the courts to judicially examine and review his exercise of it!

This is an extreme and radical view to be taken of the police law; and, in our opinion, it is one which the Legislature did not entertain., and which we decline to enforce or accept.

That mandamus is an “ancient and established remedy” for the correction of abuses in the management of municipal affairs, in this, country as well as in Europe, is amply attested by authority, and by the highest courts in both countries, it is a settled maxim that they “ entertain jurisdiction to preserve corporations in the line of order- and to correct abuses; but they do not inquire into the merits of what has passed in rem adjudicatum in a regular course of proceedings.” 1 Dillon Mun. Corp., 2d Ed., Secs. 179, 180, 183, 184, 189; Rex vs. Anderson, 3 Salk. 229; Rex vs. Richardson, 1 Burr. 517; 1 Dillon Mun. Corp., 3d Ed., Sec. 245, 250, 252; Rex vs. Nietles, 4 Burr. 2004; Commonwealth vs. German Society, 15 Pa. State, p. 251, and authorities cited.

Mr. High enforces this theory in his usual perspicuous, style:

“While, in the application of the rule under discussion, it is conceded that if the power of removal from an office rests in the discretion of any other officer or body of officers,, the exercise of that discretion will not be interfered with by mandamus, yet a distinction is taken between cases where such power of removal rests absolutely in the discretion of the other officers, and cases where they are only empowered to remove for due cause.’ In the latter class of cases, the words ‘ for due cause’ are regarded as a limitation upon the power of removal, and the determination o£ what is such a cause, is. deemed a question of law, whose ultimate determination rests, not with the officers empowered to remove, but with the courts. In other words, while the judgment of inferior boards or tribunals upon matters which properly rest in their discretion will not be controlled or interfered with by mandamus, their judgment as to what the law allows them to determine, as to the extent of their jurisdiction, may be so controlled.” High’s Ex. Legal Remedies, Sec. 69.

But in order to escape the consequences of this universally recognized principle, the learned counsel of the respondent takes the position that under the power conferred by the police statute the right of removal is discretionary with the Mayor.

We do not think so. The statute gives the Mayor power to remove, it is true; but he can proceed only upon “charges” preferred, and “in all cases the commissioners shall have an opportunity to> present evidence in their behalf.” Or in other words, there must be charges preferred, a trial had, evidence adduced, and a judgment rendered. These proceedings are limitations which are placed on the Mayor’s power of removal; and the determination of what is just cause for removal is deemed a question of law, says Mr. High, “whose ultimate determination rests, not with the officers empowered to remove, but with the courts.”

Upon careful and studious consideration of this question we feel constrained to differ from our learned brother of. the district bench, and hold that his court was fully vested with original jurisdiction, and had ample warrant of law to entertain and dispose of relators’ demands.

II.

Does the quoted provision of Section 4 of Act 63 of 1888, which confers on the Mayor of the City of New Orleans the power to remove for enumerated causes the police commissioners, vest in the Mayor judicial functions and powers, in contravention of Article 92 of the Constitution?

The provision which is alleged to be violated thereby is as follows, viz:

“No judicial powers, except as committing magistrates in criminal cases, shall be conferred on any officers other than those mentioned in this title, except such as may be necessary in towns and cities; and the judicial powers of such officers shall not extend further than the cognizance of cases arising under the police regulations of towns and cities in this State." (Italics are ours.)

The power conferred by the statute in question seems to be of just such quasi judicial character as is necessary for the good government and correct administration of a large commercial city like New Orleans; and it only purports to extend to cognizance of cases arising under its “police regulations.”

Under the charter of the City of New Orleans the Council had the power and was charged with the duty inter alia of providing and organizing “ an efficient police.” Sec. 7, Act 20 of 1882.

“The executive power of the city” was vested in one Mayor, treasurer, commissioners of police, etc. Sec. 12., Ibid.

But it was deemed best for the efficiency of the police service of the city that the police department should be put under control of a, police board, 'and accordingly one was created by the Legislature-Act 63 of 1888.

Section 1 of that act provides “that the powers and duties connected with and incident to the police department and police discipline of the City of New Orleans and the Parish of Orleans shall be * * * vested in and exercised by a board consisting of six commissioners, and of the Mayor of said city,” etc.

But it seems evident that this board was not to be entirely freed from the control of the City Council, because the act provides that the “commissioners shall be elecced by the Common Council * * * and upon the expirations of the terms of any of such commissioners the offices shall be filled by election of said Common Council,” etc.

It provides that “said board shall meet * * * subject to the call of the Mayor;” that “the Mayor * * * shall be the presiding officer of said board,” etc.; and that the “ Commissioners of the Police * * * may at any time be removed by the Mayor,” etc.

It further provides that nothing therein “ shall be so construed as to impair, diminish or reduce the power of the Mayor as commander in chief of said police force,” etc.

In construing this enactment we said in the recent case of State ex rel. Nicholls, Governor, vs. Shakspeare, Mayor, et als., 41 An. 156, “that a careful analysis of the act discloses that its true and clear purport is to provide for a complete reorganization of the entire police force of the city of New Orleans;” but it was not therein held or decided that the Board of Police was to be an organization wholly independent of the City Council. It in fact was made and intended to be and remain a component part of the municipal government. ■ Such being the case, the Police Commissioners are necessarily subject to the power of amotion, which all corporations possess inherently. And such we take to be the power which the police statute conferred on the Mayor of the city instead of the Common Council, and which the Legislature had the constitutional power to confer upon either the Mayor or the City Council at its option.

In State ex rel. Behan, Mayor, vs. Judges, 35 An. 1075, we held that the power of amotion exists ex necessitati rei in every corporation for the removal of an officer for a reasonable and just cause.

In that case the proceeding was by an impeachment of the Treasurer of the city, which was the means of amotion provided by the city charter. Sec. 53, Act 20 of 1882 i

In this statute different means are provided, but they are of like character, and equally lawful and constitutional.

The charge of unconstitufionality of the act, on the ground that it invades Articles 196 and 200 of the Constitution by providing different means for the removal of municipal officers than those therein indicated, is, in our opinion, equally untenable.

In Richardson vs. Rousseau, 35 An. 933, we decided the question now pressed upon our attention adversely to the relator’s contention.

The question then was the power of a police jury to remove and replace a parish treasurer — it having been contended that the power of removal conferred by the 2743d Section of the Revised Statutes on the police jury was inimical to the provisions of the 201st Article of the Oonstitution. But we held that “the constitutional article applies exclusively to quite different classes of officers, namely: to^ such as are elected by the people or appointed by the executive. In conferring on police juries the right of appointment and removal the Legislature intended to enable those bodies in cases of expediency and urgency to act promptly for the protection and preservation of the public interest.”

The power of removal conferred upon the respondent by the police statute is of the same character. It is the power of amotion. The efficacy of this power depends on the celerity and certainty of its enforcement; and should its enforcement depend upon the slowness usually attendant'upon ordinary judicial proceedings, its efficacy would be in a great measure destroyed.

We can perceive no well grounded objection to such a power being extended to municipal corporations or to its being exercised in the mode pointed out.

III.

The respondent alleges that the issuance of commissions by the executive to other persons in lieu of the removed commissioners had the legal effect of abating or extinguishing relator’s cause or right of action.

The Mayor’s order of removal bears date July 7, 1890, and the present suit was filed on the 14th of that month; and the commissions, which are invoked by respondent’s counsel, bear date August 5, 1890.

The commissions were tendered by the respondent’s counsel and offered to be filed in evidence, but same were rejected by the court, and they reserved a bill of exceptions. We think the ruling was manifestly correct. In our opinion on motion to dismiss appeal we held that this was, in no legal sense, a suit in which a title to office was involved. That that question was settled.

Whether there is or not a vacancy in the office of any one or all of the removed commissions is to be determined in our opinion on the merits. For, if the relators are legally removed, vacancies do exist; but if this attempted removal was illegal no vacancies exist. Upon the existence vel non of such vacancies necessarily depend the validity of those commissions — a question which is not before us. But had the commissions been received in evidence we are satisfied that their issuance would not have extinguished relators’ cause of action.

IV.

Evidently there is no misjoinder of parties. The identity and mutuality of the interest of the four relators is complete.

Charges were preferred against them in globo. They were tried at the same time and place and without any severance. The same testimony was advanced against one and all. The four were removed from office by one single decree of the Mayor.

Where there are several persons similarly situated and having a common interest at stake they may be properly joined as plaintiffs. This right has been frequently recognized by us. Handy vs. New Orleans, 39 An. 107; State ex rel. Johnson vs. Tax Collectors, 39 An. 530; Conery vs. New Orleans Water Works, 39 An. 770; 27 An. 319; 33 An. 567; 101 U. S. 699; 2 Dillon’s Mun. Corp., See. 731.

There is no force in this contention.

.V.

From all that has been said on the various points in controversy there is sufficient to attest the existence of a cause of action in the relators’ petition.

VI.

Having given careful consideration to all the complicated questions of law, which respective counselhave, with marked ingenuity, interposed, we will now examine the merits of the controversy.

The first and principal question is whether the charges preferred against the.relators amount, in law, to malfeasance in office, in the sense of the statute under consideration.

The following is a fair summary of the charges which were preferred against the relators on the 5th of July, 1890, by James G. 'Clark, president pro tem. of the City Council:

That the relators, “intending to do so, did wrongfully and unlawfully usurp the functions and the powers properly belonging to the Mayor, as a member of the police board, as presiding officer thereof, ■and as commander-in-chief of the police force of the City of New 'Orleans. That on or about the 17th of June, 1890, the Mayor being then present in the city., and able to act, and being alone authorized *to call a meeting of the police board, Commissioner Denis ordered and directed a meeting'of the Board of Police Commissioners, to be ■called for Wednesday, June 18 (1890), at 10 o’clock A. m.”

They then proceed to state that the four relators “did actually meet at the office of 'Commissioner Drolla; and wrongfully and illegally assumed to transact official business, and to transmit to the legislative committee of the Legislature of Louisiana their conclusion so arrived at as being the official action of the police board; and all of which was done in the face of the written protest of the Mayor.”

The second specification made is:

“That, at the regular meeting of the police board, held on Wed nesday, July 2, 1800, upon the reading of the minutes of the meeting at Commissioner Drolla’s office, the regularity of that meeting was •■again brought in question by the Mayor, who formally objected and protested the illegality and irregularity of the same; and thereupon ■Commissioner Denis again proceeded to usurp, the functions of the Mayor, and in the presence of the latter actually put the question •on the approval of the minutes of the meeting at Commissioner Drolla’s office, and declared same to have been adopted by the Police Board;” and that the other three relators aided and abetted ■Commissioner Denis in so doing, same being acts of usurpation and malfeasance in office, -violation of the provisions of the police statute.
There is no serious controversy in regard to the facts. The official record kept of the proceedings in question show that there was a meeting of the Police Board held on the 18th of June, 1890, which was attended and participated in by all six of the commissioners, the Mayor alone being absent. Prom the minutes of that meeting it ■appears that the «ame had been convened for the purpose of taking some action upon a communication that had then been- only recently received from State Senator Behan, looking to some proposed amendment of .the police statute. That said communication had been referred to the Mayor for his consideration, and he had not, up. to that date, taken any action. That the other “ commissioners had called upon him” — Commissioner Denis — “and requested him to. call a meeting to discuss (the) proposed amendments to the police bill, and in response to their request he called the meeting.”

Amongst the records of this meeting appears an official communication from the Mayor, in which he acknowledges the receipt of a notification to attend the meeting, denies the authority of the call, and declares it to be null and void. In response, Relator Denis, stated that he was president pro tem. of the board, and “ knew of no law to prevent gentlemen composing the board from assembling to discuss matters of importance. An invitation had been received from a committee of the State Senate,, and it was due to the gentlemen composing that body that some reply should be made.”

There also appear among the minutes several communications, from the private secretary of the Mayor addressed to Hon. P. J. Dreyfous (at the time a member of the House of Representatives) r in which is contained an amendment to the police statute which he-(the Mayor) had proposed.

In one of these, which bears date May 12, 1890, he makes use of this expression, viz :

“ As I’ve told you, I am (and I speak from long experience in the practical handling of police and Are departments) opposed to boards, and am in favor of approaching 1 as nearly as possible the one man power.’ * * * Practically, you can not get a non-political board; or if one be elected, it will soon degenerate into a political one.. No better evidence of this is needed than is afforded by the present Police Board. * ■ * * I was, as you know, opposed to the Police Board. We have it in spite of ourselves, and I think to the injury of the city and the force. * * * I am opposed generally to legislative interference in city affairs. We are old enough, and I think wise enough, to be emancipated.”

In his letter to Representative Dreyfous of date June 4, 1890, he-complains of his action, and criticises the amendment he had introduced, saying:

“ In the original act no such rule or order of the board was operative unless it had the sanction of the Mayor. You change this and make the board, by a two-thirds vote, a power over and despite the Mayor.” (Italics are ours.)

To this letter are appended the amendments proposed by the Mayor. They are as follows, inter alia:

That Section 8 “ be amended so as to read as follows: ‘ The Mayor of the City of New Orleans shall be the presiding officer of said board; shall have a vote on all questions, and in the event of a tie, shall in addition have a casting vote.’ (Italics ours.)

“ That Section 9 shall be amended so as to read as follows: * * and provided further, that the Mayor of the City of New Orleans shall have the power to veto any promotion or appointment made by the Board of Commissioners,” etc.

These are given as mere illustrations of the numerous amendments proposed by the Mayor.

On the 25th of June, 1890 three of the relators addressed a communication to the Mayor and other' commissioners and stated that “ to the amendments known as the Dreyfous amendments (they) could urge no objections and recommended their adoption.”

These are the proceedings which provoked the discussion and originated the prosecution of the relators for malfeasance.

Noth withstanding the fact that Commissioner Denis was President pro tem. of the Police Board; that he called an advisory meeting, at the instance and request of his associates, to act upon an important matter; that the necessity for the convocation of a meeting had been brought to the knowledge of the Mayor, and he had declined and refused to act; and that all six of the Commissioners had participated in the proceedings — -the complaint is that the act of the relators was an usurpation of authority and a malfeasance, because no one other than the Mayor could call the meeting. And that when, at a subsequent and regular meeting, the proceedings of the call meeting were presented for consideration and a vote of approval was demanded, the Mayor refused to put the question; and therefore Relator Denis put the question to a vote, and it was unanimously carried and declared to have been regularly and legally adopted. This act of relators is denounced as a further usurpation, and a malfeasance in office in the sense of the law.

During the course of the trial before the Mayor three of the relators appeared, and in the course of their statement said :

“ The minutes at that meeting were read, and the chairman said there was no objection to the special session. The board had acted intelligently, honestly and above board, with no spite or malice. All the commissioners took part in the session, and acted understanding^.”

Now what are the provisions of the statute which control the respective acts of the Mayor and the commissioners in the premises ? They are as follows:

“ Said board shall meet at least twice a month, and as often as necessary, subject to the call of the Mayor.” Sec. 2, Act 63 of 1888. The Mayor of the City of New Orleans shall be the presiding officer of said board, but shall have only a casting vote therein. The board shall elect one of its members as President pro tempore of the board. Not less than/owr of said commissioners shall constitute a quorum.” Sec. 3, Ibid.

We do not think it clearly and unequivocally appears from the language quoted that no meeting of the board could be called except by the Mayor. Nor does it so appear that he alone is competent to judge of the necessity of a meeting being called. Certain it is that he shall be the presiding officer at all meetings; but the fact that the law requires that a President pro tempore shall be elected evidently contemplates that meetings might be held at which the latter might preside. As the Mayor has no vote at any meeting of the board, it does not seem reasonable that he should be'the exclusive judge of the necessity for a meeting of the board.

Without discussing the merits of the controversy between the Mayor and the commissioners, in reference to the proposed amendments to the police statute, we can judge of the sufficiency of the cause for the amotion of the relators, on account of the proceedings on which the charges against them are based.

For Mr. Dillon says: “The sufficiency and reasonableness of the cause of the removal are questions for the courts.” 2 Dillon’s Mucipal Corporations, 3d Ed., Sec. 252 and note — and the English courts have frequently held that “ much depends upon the cause of the neglect, and whether the effect is to obstruct or hinder the business of the corporation or officer from being done.” (Italics ours.) Rex vs. Liverpool, 2 Burr. 723; Rex vs. Richardson, 1 Burr. 517; Rex vs. Doncaster, 2 Burr. 738; Rex vs. Ponsonby, 1 Vis. Jr. 1; Rex vs. Taylor, 3 Salk. 231; 2 Kent’s Com. 279; Willard’s Appeal, 4 Rhode Island 595.

And proceeding on that line of authority, with which the precepts of our Oode of Practice are in perfect harmony, we hold that the relators ‘‘were removed without sufficient cause;” and we' are constrained to decide that the charges preferred against them do not constitute either usurpation of or malfeasance in office, in the sense of the police law. At most their acts could amount to an honest error of judgment. We are not to be understood, however, as justifying the action of relators in calling and holding meetings without the authority of the. Mayor, or in adopting the minutes of said meeting irregularly. Had such action been undertaken for the purpose of adopting legislative measures affecting the administration of the police, it might have been a sufficiently serious matter to have justified action by the Mayor to maintain his authority. But the subject matter considered at the meeting involved no question concerning the administration of the police under the existing law. It involved merely the consideration of proposed amendments to the police statute then pending before the General Assembly; and merely expressed their opinions on that question by the members of the board present at the meeting, which might have been as well expressed by such members in private assembly. While the form of their action may have been objectionable, the substance was harmless, and in no manner affected the proper discharge of their functions or the administration of the police.

We can not hold this to be such malfeasance as was contemplated by the statute, or such as would support removal.

It is needless to say that this opinion in no manner touches upon the principles enunciated in the Lamantier case and those of like character touching the power of removal when exercised by the coordinate executive department of the State government.

Our decision rests upon entirely different principles, applicable, under express articles of the Oode of Practice, to all corporations established by law.

The order of the Mayor removing the relators from the offices of Police Commissioners was erroneous, and it must be annulled and reversed, and the relators severally restored to their functions and franchises.

It is therefore ordered and decreed that the judgment appealed from be reversed, and that the order of the respondent of date July 7, 1890, removing relators from office, be and the same is hereby revoked and annulled, and that they be restored to their offices, functions and franchises, and that to that end the mandamus be made peremptory at the respondent’s cost in both courts.


author: McEnery, J.

text:
    No. 10,690.
    Gustavus C. Street vs. New Orleans, Fort Jackson & Grand Isle Railroad Company.
    This ease involves questions o£ fact only.
    The plaintiff sued for damages for the construction of a railroad through his land. Damages to the amount of $400 awarded as damages for the appropriation of eleven acres of land, road destroyed, and fencing required by plaintiff’s property having been divided in the construction of the road.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      W. 8. Benedict for Plaintiff and Appellant.

      James Wilkinson for Defendant and Appellee.
   The opinion of the court was delivered by

McEnery, J.

The defendant company constructed its road through plaintiff’s property under the impression that it was public land.

This suit is for damages for the entry upon the land, appropriating a portion of it, destroying timber and fencing thereon, and for the cost of additional fencing rendered necessary by cutting up the property of plaintiff. There are questions of fact only involved.

The evidence in the record does not justify a judgment for the de - preciation in the value of the property, or its damage for the obstruction of drainage by the construction of the road bed.

But the plaintiff is entitled to a j udgment for the value of the land appropriated as damages, as it has been rendered useless for agricultural purposes, and for the value of the timber destroyed, and the cost of the required amount of fencing made necessary by entering plaintiff’s property.

The land, about eleven acres, is worth about $10 per acre. The two hundred cords of willow wood is worth about fifty cents a cord standing, and the additional fencing about $200. The judgment appealed from was for $400 in favor of the plaintiff.

It was justified by the evidence. We find no error in it.

Judgment affirmed.


author: Breaux, J.

text:
    No. 10,685.
    John T. Whitaker vs. J. H. Ashbey.
    1. Although the redemption of property sold for taxes creates no new rights, the one in whose name the property was assessed can not redeem it unless he discloses at least an ostensible interest still remaining, entitling him to redeem.
    2. If the property be sold at sheriff’s sale, the purchaser placed in possession, and the alleged debtor surrenders possession, and pays rent, he can not redeem the property and resume the possession as owner and usufructuary, of which he had been divested.
    3. The error or mistakes in a judicial sale when the nullity is not a matter of public interest, but entirely in a matter of private interest, can not be corrected or examined collaterally.
    The nullity resulting from a judicial sale, on which the price bid did not exceed the prior conventional mortgage, is relative, and a direct action must be brought to have the nullity declared, when the certificate of mortgages does not show that there was any prior conventional mortgage,
    4. A tender having been made of the taxes, costs and penalty — if the adjudication sought to be collaterally annulled should be annulled in a direct action — the right secured by the tender is reserved.
    A PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Moise & Titehe for Plaintiff and Appellee:
    1. A lessee’s possession of property is that of his lessor. 1-Ie can not dispute the latter’s title. 37 An. 732; 23 An. 585; 17 An. 154; 11 An. 632; 12 R. 214; lAn. 320; 10 L. 362; 8 R. 213; 11L. 173; 5 An. 36; 2R. 461; 6R.1S9; 6R.1; Abbott’s TrialEv.,p 528, No. 14.
    2. A sheriff’s deed valid upon its face can not be treated as an absolute nullity in a collateral proceeding. One claiming ownership of property sold at sheriff’s sale, and who charges that said sale is null for defects not apparent on the face of the deed, must bring a direct action of nullity. 29 An. 698 ; 24 An. 224 ; 28 An 639; 11 An. 614; 24 An. 445; 16 La. 433; 6 An. 688; 11 La. 149; 13 La. 433; 3 It. 119; 10 R. 396; 11R. 67.
    3. Article 684 of the Code of Practice applies exclusively to special or conventional mortgages. Pasley vs. McConnel, 38 An. 474; 1 An. 32, 426 ; 2 An. 617; o An. 574, 736; 7 An. 614.

      1.If a sale is made in contravention of the provisions of said article, the nullity is relative only. Lawrence vs. Birdsale, 6 An. 688.
    5. A legal tender made to a purchaser of property at a tax sale will preserve such person’s rights in case such tender is refused. Montgomery case, 31 An. 330.
    6. One divested of his ownership of property by a judicial sale, and subsequently by a valid written instrument recognizes the adjudicatee as owner, and leases the property from her, has no redeemable interest in the property. Those only having a real interest in property can redeem a tax sale. Cooley, Taxation, 2d Ed., 510; Blackwell, Tax Titles, 5th Ed., Sec. 707.
    7. It is confessedly the duty of the court to require satisfactory evidence of a right to redeem. Blackwell, Tax Titles, Sec. 707.

      Jos. H. & Zach. Spearing for Defendant and Appellant:
    1. Any pez’son who claims to be the owner of property sold for taxes, or who has an interest that znay be affected by the tax sale, is entitled to redeem the sale. Cooley on Taxation, pp. 366, 368; Black on Tax Titles, Secs. 176,189, 197; Burroughs on Taxation, Sec. 125; Blackwell on Tax Titles, p. 121; Montgomez*y & Deloney vs. Sheriff, 31 An. 331; Basso vs.Benker, 33 An. 135; Alter vs. Shepherd,-27 An. 208.
    2. Redemption creates no new title; it simply places all parties exactly whez'e they were before the tax sale. No rights are acquired or lost by redemption. The law favors redemption, and will enforce them when a sufficient amount lias been tendered. Same authorities.
    3. If the highest price bid at a sheriff’s sale is not sufficient to discharge the prior mortgages and which have a preference over the judgment creditor, there is no adjudication. Any pretended adjudication for a price less than the amount of prior mortgages legally due conveys no title. C. P., 681; Cliaffo & Bro. vs. Moz*gan, 30 An. 1311; Ashbey vs. Aslibey, 11 An. 138.
    1. The purchase by an attorney at law of propez'ty, the title to which is in litigation, is the purchase of a litigious right, and as such is prohibited. Billot vs. Robinson, 13 An. 530; Duson vs. Dupré, 33 An. 1133 to 1135,; C. C. 2652 (2622), 2653 (2623), 3556 (3522), par. IS; 2117 (2122).
   The opinion of the court was delivered by

Breaux, J.

The pleadings are an order granted to plaintiff as authorized by Section 65 of Act 85 of 1888, to place him in possession of property he bought at tax sale.

The defendant sued out a writ of injunction September, 1889, on the ground that he had made a tender to plaintiff of the price, costs and penalty, which he refused.

The plaintiff, defendant in injunction, filed an exception, in which he alleges that, at the time of the tax sale, Ashbey was not the owner of the property; that he was a tenant only, without right to redeem the property.

By consent this exception was referred to the merits.

The answer denies defendant’s allegation, and presents substantially the same grounds of defence as presented by way of exception.

The defendant in injunction filed a plea in reconvention for rent.

Judgment was pronounced in favor of the defendant, dissolving the injunction and directing that he be placed in possession of the property and condemning Ashbey to pay rent.

From this judgment plaintiff in injunction appeals.

I.

The facts are, that the property forming the subject of this suit was assessed in the name of defendant in 1888.

The taxes not having been paid, it was duly advertised in his name, and was adjudicated to plaintiff at tax sale on the second day of July, 1889.

Before twelve months had elapsed after the sale, and prior to the writ of injunction, tender was made by him of the price, costs and penalty.

On the 22d day of May, 1886, the property it is sought to redeem was adjudicated to Mary J. Ashbey, tutrix, under execution in suit No. 18,784 of the docket of the Civil District Court, entitled Mary J. Ashbey, Tutrix, vs. Joseph H. Ashbey.

Deed was made to her by the sheriff in the said capacity, and she was placed in possession by him. This deed was recorded in the Conveyance Office May 2, 1888.

Afterward, during a period of about six months, the defendant paid rent to the purchaser.

The latter sold the property to the plaintiff, but defendant in injunction, on the 21st of November, 1889.

We will at this time decide a bill of exception relating to this sale.

The defendant Ashbey objected to the deed of sale by Mrs. Ashbey to plaintiff offered in evidence, on the ground that the plaintiff was the attorney for the vendor (Mrs. Ashbey) of the property to him, with knowledge of all the facts and proceedings. That the right was litigious and the attorney could not purchase the title. .

This objection can not be maintained in this action.

The issue is not raised in the pleadings. The attorney has not been cited to answer that plea. It can not be presented in this collateral manner.

A purchase in violation of Article 2447 is a relative nullity. N. O.Gas Light Co. vs. Webb, 7 An. 168.

The defendant and Mary J. Ashbey have had several suits, and their claims to this property have been considerably discussed. Ashbey vs. Ashbey, 39 An. 105; Ashbey vs. Ashbey, 41 An. 102; Ashbey vs. Ashbey, 41 An. 138.

In the first no issues were decided. In the second a revocatory action brought by her, as tutrix, against the defendant to annul a conventional mortgage bearing upon the property in question, was decided adversely to plaintiff’s demand.

In this case, the second above quoted, it is stated:

!< For the purposes of this case, under the restricted issues to be discussed, it is unnecessary to determine whether the mortgage resulting from the judgment of adjudication of January 23, 1858, had been preserved by inscription and timely reinscription. No claim is pressed under that mortgage. The vital question is whether the indebtedness resulting from the judgment was or was not alive at the date of the mortgage.”

We have copied this statement at length for the reason that it is claimed by the defendants that the mortgage sought to be annulled in that case was prior in rank, at the time that the property was adjudicated to Mary J. Ashbey, and that therefore this adjudication to her was null.

In the third suit, before quoted, Mary J. Ashbey, plaintiff, as natural tutrix, of her minor children, and joined by her children of age, and the tutor of one of her grandchildren took a rule against the defendant Joseph H. Ashbey personally and as tutor of his children to have canceled several mortgages affecting the property, subject to this suit, which had been adjudicated to her on 22d May, 1886.

The defendant in that suit filed a number of pleas.

Among them the following, to-wit:

1. That a conventional mortgage securing promissory notes can not be treated as a nullity.

2. The nullity of the adjudication to plaintiff, Mary Ashbey.

The issues were not decided, and plaintiff’s rule was dismissed.

The records of the quoted suits were offered in evidence, but not admitted.

The court a qua ruled that they were irrelevant; a bill of exception was taken to the court’s ruling.

There is no necessity to decide the question presented, as our conclusion will be reached without reference to this bill of exception.

After the rule to cancel the mortgage had been dismissed (41 An. 1S2), the defendant in rule, plaintiff in injunction, Ashbey, proceeded by rule, viz: in March, 1890, to have the adjudication to her annulled, and to compel her to show cause why possession of the property should not be restored to him, and why she should not account for the rents of the property.

The adjudicatee, Mary J. Ashbey, excepted to this rule, because the proceeding should be by direct action and not by rule.

The exception was maintained, the rule dismissed, reserving to plaintiff in rule the right to proceed by petition and citation.

From this judgment no appeal was taken, but the defendant has not chosen to avail himself of the recommendation of the decree, and to bring a direct action.

The fact remains, that at the time the defendant attempted to redeem the property which had been sold at tax sale, on the face of the record he was not the owner, and was not in possession of the property.

We are called upon by him to decide that the adjudication made to Mary J. Ashbey is absolutely null, and that his right to redeem was unaffected by it, and that he should be restored to the possession, as though he had never been dispossessed.

It is contended that, at the time the property was adjudicated to Mary J. Ashbey (the vendor to plaintiff) there was a mortgage bearing upon it preceding the one under which the property was sold.

The defendant invokes the principle that, where the price offered by the highest bidder is not sufficient to discharge the privileges and mortgages existing on the property, and which have a preference over the judgment creditor, there should be no adjudication.

Several difficulties present themselves to the granting to defendant the relief asked:

1. The judgment creditor, at whose instance • the property was sold, who became its adjudicatee, and to satisfy whose claim it was sold, is not a party to these proceedings.

2. The records do not disclose that there was a prior mortgage at the time it was -adjudicated to her.

8. If there was, a direct action should be brought to set aside the sale.

The purchaser must be made a party to the suit in order that the priority and rank of the mortgage may be determined. Sittig vs. Morgan, 5 An. 575; Suc. of Fontelieu, 28 An. 639.

We will pot assume in these proceedings that there was a prior mortgage.

The issue of priority of mortgage is not presented; in addition, the certificate of mortgage did not show any prior conventional mortgage. Pasley vs. McConnell, 38 An. 470.

The case from which we have before quoted (41 An. 102) does not finally settle the question of mortgage rights between the parties. If it does in that- case settle that question, it can not avail in the pending case, in which there are other interests involved, which can be affected only in a direct action.

4. In the case at bar the court had jurisdiction, due notice was given and advertisement made.

The certificate of mortgage was read, and the property was adjudicated to the judgment creditor.

The sheriff in his deed credited the price as so much received by the seizing creditor.

The deed was duly recorded.

In all these' proceedings not the least objection was made by the judgment debtor.

The purchaser was placed in possession; during six months the defendant Ashbey paid rent on the property.

He' also acknowledged her possession in his rule filed to have the adjudication annulled, and to be restored to possession (which was dismissed, as we have before mentioned).

The property has been sold to plaintiff since it was adjudicated to the judgment creditor, Mrs. Ashbey, who is not a party to this suit.

The errors or mistakes in a judicial sale, where the nullity is-not a matter of public interest, but entirely in a matter of private interest, can not be corrected or examined into collaterally. Dupuy vs. Bemiss, 2 An. 509; Gillis vs. Carter, 29 An. 698; Doherty vs. Leeke, 24 An. 224.

A title will be upheld until a direct action' is brought, setting forth and proving especially its defects.

The principle involved has received consideration in several decisions. The conclusion reached in the case of Whitehead vs. Cramer, 2 An. 617 and 859, could not have been reached, if the nullity, re-suiting because of a prior existing conventional mortgage, bad been thought absolute.

It was held “that the fact that the sum for which property was adjudicated at a judicial sale is less than the amount of previous special mortgages, will not prevent a sale where the previous mortgages are in favor of the judgment creditor.”

The subject was directly considered in the case of Whitehead, Receiver, vs. Wiley, 9 An. 214, and the same plaintiff vs. Cramer, Ib. 216, and it was decided that the nullity resulting from a judicial sale, on which the price bid does not exceed the prior conventional mortgage, is relative only.

The question was again under consideration in the case of Lane vs. Cameron, 36 An. 773.

The absolute invalidity of the sale was urged on the ground ‘ that the bid did not exceed the prior special mortgages on the property.”

The court held that the mortgage certificate “ did not show any prior special mortgage,” and further declined to decide, in the absence of the creditor of the mortgage, questions involving its existence, record and rank.

The mortgage certificate, in the case at bar, did not show any prior special mortgage, and the creditor of the mortgage is not a party to the suit.

The grounds of nullity urged in this case will not be considered collaterally.

A direct action must be brought.

The plea in reeonvention for rent is supported by Section 66 of •the revenue act of 1888, and was properly allowed. :

It is proven that the defendant has made a tender of the taxes, costs and penalties before the twelve months had elapsed after' the sale.

His rights are especially reserved.

If, in a direct action, the adjudication to Mary J. Ashbey, made on the 22d of May, 1886, be annulled also, the alleged rights invoked by plaintiff, as vendee, after legal tender, the right of redemption shall be complete.

The judgment appealed from having been amended by reserving to defendant his right to redeem (if the adjudication and sale be annulled) the judgment is affirmed with this amendment at appellee’s costs.


author: Bermudez, O. J.

text:
    NO. 10,692.
    Michael Hackett vs. His Creditors.
    The order of a court accepting a voluntary cession is not a definitive judgment which can acquire the force of res judicata.

    It is merely an interlocutory order, the execution of which can not cause an irreparable injury.
    It is revocable or amendable, if erroneous, by a proper proceeding, contradictorily instituted and determined.
    It is not one of that class of judgments, the effect of which can be stayed by appeal.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      W. 8. Benedict for the Appellant.

      W. 8. Parkerson for the Appellee.
   The opinion of the court was delivered by

Bermudez, O. J.

The appeal in this case is taken by a creditor' of the plaintiff, for a small amount, from the order of the District Judge, accepting the voluntary surrender made by him.

The complaint is that there is error in this acceptance, to the prejudice of that creditor who feels aggrieved thereby.

The erf or charged consists in this: That the schedule presented by the insolvent contains a too brief and vague statement of the assets, and does not conform with legal exigencies.

The property abandoned is stated to be as follows:

Store and dwellings -102 Dryades street.............................................................. $4,500

Stools: in trade..................................................................................................... 6,000

Outstanding accounts............................................................................................. 10,000

One horse, one mule, one wagon (separately valued)........................................ 550

$21,050

The creditors are named, and the amounts due each respectively are stated in several exhibits, which show the amount of the passive to be $30,067.45.

The appeal is unwarranted.

The order rendered by the District Judge is not a final judgment susceptible of acquiring the force of res judicata.

It is a mere ex parte order, not even an ordinary interlocutory decree, contradictorily rendered.

It is not an order or decree, susceptible, by its execution, of causing any irreparable injury to the appellant, and there is no averment or pretence that it does.

It is an order which can be rescinded or modified by some appropriate proceeding in the lower court, contemplating a requirement for further description of the assets, or for the rejection of the application for the benefit of the insolvent laws, or some other-purpose.

The order, as made, can only enure to the advantage of the creditors of the insolvent, who, if the statement of assets is unsatisfactory, either because not sufficiently detailed or explicit, or because it does not include all the property of the ' applicant, or for some o.ther reason, are not thereby deprived of any legal remedy, to have their rights adjusted. 42 An. 71; 20 An. 364; 36 An. 909; R. S. 1795, 1786, 1789.

If injury can be sustained by the creditors, it is not surely any inflicted by the action of the judge, but rather that occasioned by the move of the appellant, which leaves the applicant in possession and procrastinates a liquidation and distribution.

If there be error in having accepted the cession, it can not be redressed in the form attempted.

Appeal dismissed.


text:
    No. 10,766.
    The State ex rel. Police Jury et al. vs. Judge Second Judicial District Court.
    1. .Act SB of 1888 conferred powers and imposed duties upon the Police Jury of Bossier to hold elections touching the location of the parish seat, and to ascertain and proclaim the result of said elections, and gave to its declaration and proclamation the effect of i2>so facto establishing the parish seat at the place so proclaimed to have been chosen.
    2. The Police Jury is, primarily, the judge of the nature and extent of its powers and duties under the law, and no person or officer is competent to question or reverse its determination, except by an appeal, in proper form, to the judicial power. Until reversed by such authority its determination must be respected.
    3. The declaration and proclamation by the jury of the result of the election, as being in favor of Benton, had the effect, under the law, of making Benton at least the defacto parish seat; and although its dejiw'e title may be in dispute in pending litigation, its defacto status must be accepted and recognized until the question of title is finally settled.

      4. It is of vital public interest that a parish should have a parish seat which should be fixed and certain. If the action of the Police Jury has been in accordance with the law, the parish seat of Bossier is at Benton. It had power to act; it has acted; its action can be set aside by judicial authority on issues properly framed; and until so set aside, every officer and person is bound to respect it.
    5. It is the clear duty of respondent to hold the terms of his court at the parish seat, and he, in common with all others, is bound to accept the action of the Police Jury, fixing Benton as the parish seat, until judieally annulled and set aside.
    y^PPLICATION for Mandamus.

      J. A. W. Lowry, District Attorney, Land & Land and Joannes Smith for the Relators.
    Respondent in propria persona.

   The opinion of the court was delivered by

Fenner, J.

Act No. 33 of the General Assembly of 1888 provided for the removal of the parish seat of Bossier parish from Bellevue to one of certain named places, to be determined by the result of elections provided for in the act.

It confided the ordering and the conduct of said elections to the Police Jury of the parish. The Police Jury were to order the elections and to appoint the commissioners to hold the same; said commissioners were to make their returns to the Police Jury; it was made the duty of said jury “to proclaim the result of said election or election's,” and of its President to declare the place so proclaimed “ to be the parish seat of Bossier parish.”

After the last election had been held certain proceedings were taken by the Police Jury and its president, the effect of which was claimed to be the fixing of the town of Houghton as the parish seat; but in the case of the State ex rel. Mayor vs. Police Jury, decided by us at our late Shreveport term, we held that said proceedings were inoperative and did not constitute an ascertainment or proclamation of the result of said election.

Since that decision the Police Jury has taken further action. It has proclaimed the result of the election to be in favor of the town of Benton, and its president has, in conformity with the law, declared the parish seat removed to Benton by formal proclamation.

Section 2746, Revised Statutes, and Act No. Ill of 1880 make it the duty of police juries to provide, at the parish seat, a good and sufficient court house, with requisite furniture for the sitting of the District and Circuit Courts, and such offices and furniture as may be needed by the clerks and sheriff of said courts, and also a good and sufficient jail.

Accordingly the Police Jury has leased a building for a court house at Benton, and has ordered the records and furniture in the former court house to be removed thereto; and the same have been so removed. The clerk of court, the sheriff, assessor, parish treasurer and clerk of Police Jury have removed to Benton, and established their offices in the buildings provided.

In this state of case the Police Jury, joined by certain parties wlm have suits pending in the respondent’s court, bring the present action, in which they set forth the facts and law as above stated, and aver that the town of Benton is de jure and de /acto the parish seat; that it is the duty of respondent to hold the terms of his court, as fixed according to law, at said parish seat; but that he openly declares and proclaims that he will not recognize Benton as the parish seat, and will not hold court there; and they pray for a mandamus ordering him to do so.

The respondent in his answer makes no specific denial of the facts alleged, but sets up certain irregularities in the proceedings of the Police Jury under Act 33 of 1888 which, in his opinion, vitiate and render null their proclamation of Benton as the parish seat. He avers that the parish seat has not been changed in accordance with law, but remains at its former site, Bellevue; and concludes with the statement that “ until the question is settled he can not legally hold a session of 'court at any place other than at Bellevue, the old and long established parish seat.” He also sets up the pendency of a mandamus suit brought against the Police Jury by the mayor of the town of Houghton, the object of which is to ascertain judicially whether the Police Jury has performed its duty according to the law, and to require them to perform that duty legally. The respondent had decided that suit in favor of the relator therein, and a suspensive appeal had been taken to this court.

It is obvious that the litigation referred to cuts no figure in the present controversy, being undetermined and pending on a suspensive appeal before this court. We must decline to anticipate its decision by passing in this case upon the de jure title of Benton to be the parish seat of Bossier parish. Sufficient for all the purposes of this case will be our determination that it is the de facto parish seat, so constituted by the proclamation of the Police Jury, to which alone was confided all the authority over the subject matter delegated by Act 38 of 1888, and which has acted under color of that authority. Its action must have effect, and must be respected by all, until it shall have been annulled and set aside by competent authority. -It was the right and duty of the Police Jury, under the law, to act; it has acted, and the law gives to its action the effect of fixing the parish seat. The law does not postpone this effect until it shall have been judicially determined that its action was in all respects conformable to law. It was the province of the Police Jury to determine, primarily, its duties under the law, and that determination can not be reversed except by competent judicial authority. If on proper issues the judicial authority should decide that the jury erred, and that its action was void, it may annul and cancel it; but until this is done, its decision must be respected and enforced.

The case is governed by the principles appplicable to de facto officers, meaning thereby officers who hold and exercise their functions, with apparent right and under color of legal authority, and whose acts are to be respected, although' their de jure title be denied and be involved in pending litigation with adverse claimants. This is based upon a recognition of the public interest that the duties of the office should not lie in abeyance, but should be discharged by some one during the pendency of litigation to determine the issue of title. 2 High on Injunctions, Sec. 1315; Abbott’s Law Dictionary, verbo u de facto.”

It is of vital public interest that the parish seat of a parish should be fixed and certain. If the action of the Police Jury, in the exercise of functions confided to it alone by the law, has beeen in accordance with law, the parish seat of Bossier is undoubtedly at Benton. It does not lie in the mouth of any person or officer to question the legality of the jury’s determination of its own duties under the law, except by an appeal, in proper form, to the judicial power; and until the courts have finally determined the issues adversely to the jury, the latter’s action must be given effect, and be respected by all.

We therefore hold that Benton is the defacto parish seat of Bossier, entitled to be accepted and treated as such by all officers and other persons until the action of the Police Jury shall be annulled by the only competent authority.

Of course, no question can arise as to the duty of respondent to hold the terms of his court at the. parish seat, and he does not question the authority of this court to direct the performance of that duty by mandamus. As we'understand his answer, he only desires the instruction of the court as to what his duty in the premises is. We are very clearly of opinion that he should recognize Benton as the parish seat until otherwise judicially determined, and should hold his court at that place.

It is therefore ordered that the provisional writ of mandamus herein issued be now made peremptory.


author: Eenner, J.

text:
    No. 10,746.
    D. W. Pratt, Tax Collector, vs. J. J. Holmes.
    Appeals from tlie parish of Webster are under the law returnable to this court at Shreveport. If erroneously filed in New Orleans, this court can take no action thereon, except to strike it from our docket here.
    APPEAL from the Second District Court, Parish of Webster. Boone, J.

      Watkins & Watkins for the Plaintiff and Appellee. ■

      Drew & Stewart for Defendant and Appellant.
   On Motion to Dismiss.

The opinion of the court was delivered by

Eenner, J.

This is an appeal from the parish of Webster, returnable according to law to the Supreme .Court at Shreveport on the second Monday of October, 1891. The judge in his order granting the appeal made the same returnable to the Supreme Court in ten days, and according to law.”

It will be observed that the order does not designate the place of return. The appellant has erred in bringing his appeal to New Orleans, where it does- not belong. His motion to transfer the appeal to Shreveport can not be allowed, because we can take no cognizance of his appeal here except to strike it from our docket at this place as having been improperly filed. Minor vs. Budd, 37 An. 709.

It is therefore ordered that this cause be stricken from the docket of the court at this place at appellant’s cost.


text:
    No. 10,716.
    The State ex rel. New Orleans Insurance Association vs. City of New Orleans and Board of Liquidation of City Debt.
    The holders of old consolidated bonds of the City of New Orleans, the extension of which is provided for by Act 58 of 1882, by collecting the interest coupons and detaching them from said bonds, which matured after January 1, 1888, forfeit the right to have them extended.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      E. W. Huntington and Alfred Grima for Relators and Appellees:
    All allegations in a petition not denied by the answer must be taken as true. 3 An. 528; 18 An. 161.
    The proviso in the third section of Act No. 58 of 1882 — “ that no bonds shall be extended, unless all the unmatured coupons falling due after January 1, 1883, are attached thereto ” — refers to coupons unmatured at the time of the application made to the Board of Liquidation of the City Debt for the extension of the bonds to which they belonged.
    The construction placed on the said act by the said Board of Liquidation by their uniform and continuous practice in extending bonds of like issue to those sued upon is binding on them toward the relators Who bought such bonds when 250; 16 An. 196.
    In a doubtful case the agreement is interpreted against him who has contracted the rule adopted by the said board was prevailing. R. O. 0.1956; 3 Rob. 187; 2 An the obligation. 3 An. 221; 6 An. 201; 19 An. 167; 20 An. 363; 17 An. 191, Commercia Bank vs. City.
    A rule of statutory construction is that the intent of the law maker is to be ascertained by inquiring what was his motive in legislating. 30 An. 982.

      Henry O. Miller for Defendants and Appellants:
    Tlie act of the Legislature, No. 58 of 1882, to authorize the City of New Orleans to extend the payment of its bonded debt, provided that all past due coupons-matured up to and including the 1st of January, 1883, should be funded into ten years bonds, and that extant bonds shouid be extended forty years (subject to call after 1895) by the issue of certificates bearing interest coupons for the interest accruing after the 1st of January, 1883; but to renew the bonds the act provided “that no bonds shall be extended unless all the unmatured coupons falling due after the 1st of January, 1883, shall be attached thereto;” and this condition exacted that all the unmatured coupons borne upon the bond when issued, beginning with that earliest maturing after 1st of January, 1883, should be attached to the bond when tendered to be funded. See Act of 1882, No. 581 Sections 1,2, 3, 4, Session Acts, pp. 66, 67, 68.
    It follows that the bonds sued on in this ease, not having attached to them all the coupons borne upon the bonds when issued maturing after the 1st of January 1883, are not entitled to be extended under the Act of 1882.
   The opinion of the court was delivered by

McEnery, J.

The relators apply for a mandamus to compel theOity of New Orleans, through the Board of Liquidation, to extend, according to the provisions of Act No. 58 of 1882, eighty-two bonds of $1000 each, known as old consolidated bonds of the Oity of New Orleans, issued under the act of consolidation of said city, adopted by the Legislature, on the 23d of February, 1852.

The Oity of New Orleans, through the Board of Liquidation,, answers, denying relator’s ownership of the bonds, and that the option was extended by Act 58 of 1882 to the holder of the said bonds to extend the same on the condition that all the unmatured coupons maturing after the 1st of January, 1883, were to be attached to the bonds presented for extension; that the relators, when they presented said bonds for extension, did not present with them, attached to the bonds, all the unmatured coupons falling due after 1st January, 1883, as required by said act, the same having been detached and paid, and the said board can not therefore-be required to extend said bonds.

The relators are the owners of the bonds.

The evidence shows that the Board of Liquidation has extended, under said act, other bonds with unmatured coupons attached, only at the date of application for extension.

The fact that the Board of Liquidation has, in many instances, disregarded the provisions of Act 58 of 1882 can not determine the legal construction to be placed on said act.

The question presented in the case is, are the applicants for the extension of their bonds required to present attached to them all the unmatured coupons maturing after 1st January, 1883, or only the unmatured coupons at the date of the application for extension. As recited in said Act 58 of 1882, it is a contract between the city and her creditors mentioned therein. But it only becamea contract binding upon both after the acceptance of the conditions of the act. As long as the creditor refused to accept its conditions he was a stranger to it, and not bound by it.

The act was an appeal to the city’s creditors to comply with its conditions, because of her financial embarrassment.

By Act 68 of 1882 the Legislature authorized the city of New Orleans to levy and collect an additional tax to pay the interest on her debt other than premium bonds, which were provided for. The act was conditional. If the creditor of the city refused the terms of Act 58 of 1882 it was to become a law. If they accepted the terms of said act it was to become null and void.

The creditor had his option to extend his bond, or to hold them under the original contract by which they were issued and receive his interest. The holders of the bonds in suit preferred the latter proposition. All the coupons have been paid and detached from the bonds to the day of presenting the bonds for extension. The bonds mature in 1892. The holders and owners of them have held them for eight years, during which time they have collected the interest coupons and detached them from the bonds.

Act 58 of 1882 provides that no bond shall be extended unless all the unmatured coupons falling due after the 1st of January, 1883, shall be attached thereto. When the bond is extended a certificate is attached, obligating the city to pay in future years coupons at the rate of 3 per cent, semi-annually, and that they shall relate to the maturity of the coupons on the extended bonds, beginning with the earliest coupons maturing after 1st of January, 1883.

The act could not be carried out according to its plain and unambiguous meaning without the presentation of the bond, with all the unmatured coupons attached thereto, after the 1st of January, 1883.

Act 58 was approved 30th June, 1882. It dealt with the bonds as they then existed, and had reference to the past due coupons upon which interest had defaulted, and to the unmatured coupons, dating after 1st January, 1883.

We think the plain, textual provisions of the act will bear no other interpretation. In order to extend these bonds the relators must conform to and comply with the act.

They have not complied with it. They have rejected the offer contained in the act. They have collected the interest coupons and surrendered them, thus placing it out of their power to accept the conditions proffered in Act 58 of 1882.

The holders of these bonds had one year (until July, 1884) to comply with the provisions of said Act 58 of 1882. This was ample time. Within this time they have neglected to avail themselves of its provisions, and have collected the interest on the coupons maturing after January 1, 1883, thus plainly refusing to accept the provisions of said act.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided, reversed, and it is now ordered that the relief prayed for by relators be denied and the rule herein be discharged at relators’ costs.