author: Town, J. Bermudez, C. J. Levy, J.

text:
    No. 7812.
    Julia A. Ventress, Individually and as Dative Testamentary Executrix, vs. Isaac D. Brown et als., Heirs of James N. Brown.
    An agreement between the heirs, that one of them will buy at the partition sale, for a certain price, some of the joint property, is legitimate and binding, and if the said property is ad» judicated for less than the stipulated price to the heir who agreed to buy it, he is liable for the difference.
    The value of slaves donated in 1859 by a father to his daughter as advancement d'hoírie, (his succession being opened later in the same year,) must be collated notwithstanding the abolishment of slavery. The case is governed by the Code of 1825, not of 1870.
    An informal and invalid donation may be confirmed and ratified by the heirs of the donor, and this ratification needs not be by express act, but may be shown to result from the general conduct of the heirs. C. C. 2274.
    A special legatee is entitled to tlie interest, without proof of his having demanded payment, when the executor has himself ashed for and obtaiued an order of Court to sell property of tbe estate for the purpose of paying such legacy.
    ApPEAL from the Parish Court, of tbe Parish of Iberville. Cok, J.

      Barrow & Pope, for Plaintiff and Appellee :
    1. An executor may join an heir in demanding a partition to show, by admissions, the right, of the heirs to take seizin of the estate.

      2. A judgment rendered in favor of a succession while same is represented hy an executor, is res adjudicata ngaiust and in favor of the heirs to the same extent as it is in favor or against the succession And all claims and demands included in said suit, become res adjudicata as determined therein. 27 An. 59 ; 28 An. 898; 17 La. 96, Erwin’s Heirs vs. Bissell’a Heirs.
    3. An executor continues to represent the succession in suits commenced by or against him during his term. C. C. 1672, (1665); 18 La. 344; 10 La. 435.
    4. "Where a testator directs his executors to make divisions of certain funds at certain times and to deliver to the major heirs their share, and invest the shares of the minors for their account, and at their majority to deliver same to said minors, the title of the minors vest at the moment of the division, and any accumulation or loss of said funds is that of said minors. 29 An. 233.
    5. An heir cannot be required to collate what he has never received, especially when it appears the lands perished in the hands of testamentary executors under such circumstances as to excuse them.
    6. Interest is due on a special legacy by the estate of the testator only from the date of the judicial demand for same. If no demand is made, no interest is due.

      (a) If interest is allowed, it must be calculated on both sides of the account.

      (b) In settling accounts between heirs in a partition, one cannot be estopped unless all are. G. G. 1626, (1610) 1631, (1621); 24 An. 126; 17 La. 312.
    7. Immovable property, including slaves, given to one of the children, that has been destroyed by an accident without his fault, is not subject to collation at all.
    8. A donation, under private signature, of slaves to a married woman, never accepted by her, nor possession delivered to her, is null. Ho acts of the husband alone can bind the wife to accept said donation. A donation bad for form, if it can be ratified at all, must be ratified by all parties interested. Minors cannot ratify.
    9. A party may correct an erroneous judicial admission as to all parties except as against those who have acted on said admission.
    ■S'. Mathews, for Mrs. Feltus, Defendant and Appellant.

      A. & JE. B. Talbot, for Isaac D. Brown, Defendant and Appellant.

      Henry Denis, on same side:
    An administrator cannot provoke the partition of a Succession by Licitation. 22 An. 310.
    A judgment rendered in favor of a Succession against a defaulting executor for the balance remaining in his hands, after paying various sums to the heirs, cannot constitute res adjudicata between the heirs themselves, as to the sums they have received and should collate, especially when they were not parties to the suit.
    A District Court has no jurisdiction ratione mateHce to pronounce upon the collations to be made by the heirs of a Succession among themselves.
    The testator may validly order in his will that the portions of the minor legatees shall be invested by the executors and paid over by them to the minors at their majority. 29 An. 232; 31 An. 127.
    An executor, who is at the same time the tutor of a minor heir, cannot make valid payments to himself as tutor. 6 La. 407; 2 Bob. 556; 10 An. 800; 13 An, 18; 31 An. 394; 4 How. 513; 1 Mason, 345.
    Slaves given to his heirs by a person whose Succession was opened in 1859, should be collated, under the provisions of the Code of 1825. That Code and not that of 1870 should govern, because the rights of the parties attached in 1859.
    A donation, null-for want of legal form, may be ratified by the heirs of the donor. 6 Bob. 331; 3 An. 522; C. O. Art. 2274.

      Win. JB. Robertson7 for Intervenor.
   The opinion of the Court was delivered by

Town, J.

This is an action of partition, tho parties to which are tho heirs of James N. Brown, who died in the Parish of Iberville on the 27th of September, 1859. Tho defendants are appellants from a judgment of the late Parish Court of said parish, ordering a sale of the property of the sucoession, to effect a partition and fixing the amounts to be collated by tlio several heirs.

The leading facts connected with this controversy, of which mention need he made, are substantially as follows :

Tho deceased left at his death a large estate, and six children, four of whom were minors. Two of the minor heirs died shortly after their father. Of tho remaining minors, one Mary E. Brown (now Mrs. Feltus,) became of age sometime in 1862, and tho other, Isaac D. Brown, in 1869.

Tho deceased left at his death a last will and testament, dated on the 30th of June, 1859, from which we extract the following, as pertinent to this suit:

I will, that after the sugar and molasses, etc., has been sold, that is now on the place, that, with the ready money now on hand he divided in six equal portions, the majors to at once take possession of their portions. At the maturity, or in other words, as each minor becomes of age, they are to receive from the administrators of my estate, fifty thousand dollars in cash each, together with that portion of the revenues with their proceeds that may accumulate from year to year, so as to make what my six children receive from me precisely equal.
“ At eaeli sale of the crop, after paying the current expenses of both plantations, the net revenue of the minors’ portion, as well as their portion of my estate, I have directed to he sold and to be invested by my administrators in good acceptances ór bills receivable for their account, a.s the majors will, of course, he present and receive for themselves.”

John M. Brown, the oldest son of the deceased, and Gilbert S. Hawkins, of New Orleans, were appointed executors of the estate, and qualified as such. They both died in 1864, without rendering an account of their administration.

John M. Brown also became dative tutor to the minors Mary E. and Isaac D. Brown, and upon his death, the plaintiff’s husband, (Jas. N. Ventress) she being one of the major heirs at the death of the deceased, was appointed tutor to Isaac D., the other minor (Mary E.) having, in ■the meantime, attained her majority and married.

Ventress also, on the death of the executors named in the will, became executor of the estate of Jas. N. Brown, and remained executor till removed from office by a judgment of tlie Parish Court; and in September, 1872, the plaintiff was appointed executrix of the estate.

The property of the succession of James N. Brown, deceased, consisted mainly of two plantations, Oakland,” situated in the Parish of Plaquemines, and “ Manchac,” in the Parish of Iberville. The former was sold to pay the legacy of Mrs. Feltus, on the 7th of August, 1867, and purchased by her at the judicial sale for $70,000. She retained of the price $62,500 on account of the principal and interest of her legacy, and gave her note for the balance, $7,500.

The Manchac Plantation was subsequently sold to discharge the legacy of Isaac D. Brown, and was bought by him for $71,644.16|-, on which amount, it is conceded, that he was entitled to credits, for payment made at time of sale, and certain charges against the property settled by him, to the extent of $9,187.58, leaving a balance received by him, in the property thus purchased, amounting to $62,456.58#.

These plantations comprised as stated, the main property of the succession. The suit .is for the partition of the residue. The contention relates to the question of collations between the several heirs, and is caused, to a great extent, by the losses resulting from the war which prevailed during several years of the administration of the succession, and the confusion arising from the destruction by fire of the books of Hawkins & Norwood, the merchants to whom were consigned the crops from the plantations, and by whom the distribution of the proceeds of the crops sold was made among the heirs, Hawkins, one of the firm, being an executor of the estate.

The condition of things resulting from these causes gave rise to a great deal of litigation toucliing the affairs of the succession, and the respective claims of the heirs, the proceedings relating to which have come, up with the record in this case, and have swelled it to more than a thousand pages* Some of these proceedings we will have occasion to refer to hereafter.

We have diligently and with great care and patience examined this voluminous record, and have thoroughly considered every question connected with the issues in the case, and shall content ourselves with simply announcing our conclusions where they concur with those reached by the Judge of the lower court, and confine our discussion to those points wherein we have arrived at a different conclusion from him ; and give our reasons briefly for the changes we feel constrained to make in his judgment.

So many are the questions arising from proceedings connected with the administration of an immense estate, protracted for nearly twenty years, and a part of that time marked with the irregularities, embarrassments and confusion growing out of a state of war, that any other course than this would be impracticable.

1. Before, however, entering upon a consideration of the merits of the case, which, as stated, relate exclusively to the matter of collations by the heirs, there are certain preliminary questions suggested by the exceptions in the record tobe disposed of.

The first is that raised by the exception denying the right of an executrix to provoke a partition of an estate.

Inasmuch as the plaintiff sues for this partition in both capacities, as executrix and heir, and all the defendants in their answers have joined in the prayer for a partition, it becomes unnecessary to decide the point raised as to the right or power of an executrix, in such capacity, to institute the proceeding.

All the heirs are parties to the suit, and the joinder of the executrix, and the admission of the parties, and the evidence in the record, show that the debts and legacies have been discharged, and no legal obstacle longer exists to a partition.

2. The next question is that presented by a bill of exceptions taken by the plaintiff to the introduction of evidence admitted to establish the amounts to be collated by her; the objection to such evidence being that the amounts and subjects of such collations were not set forth by either plaintiff or defendants in their pleadings. The Judge a quo admitted the evidence, and we think properly. The partition was claimed and provoked by the plaintiff. No legal or proper partition or settlement could be made unless the collations were first fixed. The partition showed that collations were due from all the heirs, and set out specifically the collations to be made by the defendants, and referred to a suit between plaintiff and her husband, and sought to correct an alleged error which that record afforded, as to the collations to be made by the plaintiff. Considering the character and object of the suit, and the nature of the pleadings referred to, the evidence was clearly admissible. We can seeno reason why the allegations touching collations should be more precise, where they are to be determined by the Judge, than when they are referred to be adjusted by the notary in the proceedings before him; and in the latter case it is not pretended that any such precision and nicety is required.

3. The plea of res judicata was interposed by the plaintiff to any attempt on the part of the defendants to disprove the correctness of the collations charged in the petition as due by them respectively.

The plea was based on the following facts and proceedings:

' After the death of the first executors, (John M. Brown and Gilbert Hawkins) their successors instituted a suit against the succession of the deceased executor, (Brown) with a view to determine his liability to tlie estate of James N. Brown, growing out of his administration of that estate. The succession sued was charged, with the whole amount of the inventory of the succession administered, being some $450,000, and required to account for the same. It was alleged in the suit that payments of largo amounts had been made by the deceased to the heirs, and they were made parties, with a view to fix the amount of such payment. The heirs cited, excepted to being joined in the proceeding, and were dismissed therefrom, their exception being sustained.

The suit was tried and the liability of John M. Brown’s succession to James N. Brown’s succession was fixed at about $18,000, on proof of payments made by the deceased executor to creditors and heirs, and otherwise. It is contended that the amounts shown in that suit to have been paid to the heirs, determined, as a thing adjudged, the amounts to 1)6 collated by them in the partition of the succession.

We do not think so. The heirs, as stated, were not parties to the •suit, personally; the legal representatives of the two successions litigant did not represent them ; they were not before the Court to contest the amouuts with which they were charged. The amounts of such charges wore mere incidents of that suit, while the thing to be adjudged, the sole object of the suit, was the determination of the amount owing by the one succession to the other.

However, the proceedings and evidence in that case may assist us in our investigations in this, yet the judgment rendered therein is not res judicata upon any issue in this case. Had it been so, our labors and investigations would have been vastly abridged.

On the Merits.

L

The first question that presents itself on the merits, is in regard to the collations of Mrs. Eeltus, (Mary E. Brown). The Judge a quo fixed the amount of the collations due by her at $127,925.73. The items of the account that make up this total, complained of by her, are as follows:

1. $8,494.21, her alleged share of the crop of 1860, sold by Hawkins & Norwood.

2. $7,500, amount of her note, given for the excess of the price of the Oakland Plantation, over her legacy.

3. $6,164.19, the amount of certain accounts of George A. White, for goods furnished the store on the Oakland Plantation.

These are all the items mentioned in the brief of her counsel, which, he insists, should be deducted from the amount of her collation fixed by the judgment below.

First. As to the first two items, we are satisfied they are correct.

We believe from the evidence, which it is needless to review in detail, that both the crops of 1859 and I860, were sold and distributed by Hawkins & Norwood, and the amount stated was the share of this heir in the crop of I860; and this distribution was made in accordance with the terms of the will,-which we have quoted above.

Second. Before the sale of the Oakland Plantation, it was agreed among all the heirs, that Mrs. Feltus should take it on account of Inn-legacy. She was to take it at §70,000, and it was in accordance with this agreement, and the purchase made by her under it, that the note for the excess of the price over the legacy was given. We perceive nothing wrong or illegal in this. It was a legitimate subject for a contract, and we see no reason why she should not be held to it.

Third. In regard to the third item, our conclusion is that she should not be charged with it, and that the judgment in thus charging her was erroneous.

Before the purchase by her of the Oakland Plantation, it was managed by her husband for the executor, at that time, James N. Ventress. On this plantation was a store, in which merchandise was sold to the laborers on the plantation and the public generally.

In the account filed by Ventress of his executorship, he sought to credit himself with the amount of the goods, etc., bought of White for the Oakland Plantation. This account was opposed by Mrs. Feltus,' and the credit for these accounts of White, to the amount stated, of §6,164.19, was refused Ventress.

In the present suit, this amount is charged against Mrs. Feltus, and makes part of the aggregate sum she is required to collate by the judgment of the lower court. It is true that her husband had charge of the store where the goods covered by this account were sold, as a manager for the executor, but there is no evidence in the record that would charge. Mrs. Feltus with their juice or value.

Her husband may be liable for them, but there is nothing- to fix any liability on her. Mrs. Feltus had nothing to do with the store or with the management of the plantation, nor is it shown that the goods were received by her, or enured in any way to her benefit, and we are at a loss to understand under what pretext they were charged to her. This amount must, therefore, be deducted from the amount of the collation to be made by her.

There is also a judgment that enters into this partition for $25,595.20, which may be disposed of in this connection. This judgment was rendered in the same oj)position of Mrs. Feltus to the account of Ventress, executor, referred to. The ojrposition of Mrs. Feltus was sustained and a balance rendered against the. executor for the amount stated, in favor of tile succession of Janies N. Brown, and tliis forms one of the assetts to be partitioned. There was an appeal taken from this judgment to the Supreme Court, reported in 27 A. 328, and the Court, in its decree, reserved to the executor the right to claim in the final settlement and partition of the estate, all amounts he alleges to have paid to the heirs.”

Under this reservation, on the trial of the case in the court below, the Judge allowed certain deductions from this judgment on account of the payments referred to, and among others, this account of George A. White, which was credited on the judgment against Ventress, and charged to Mrs. Feltus as an amount paid to her by the executor. As we have seen, she was not responsible for the amount, and it should not have been deducted from the said judgment. This will reduce the amount of the credits on the judgment against Ventress to $11,321.38, making the balance due on the judgment, $14,273.82. We think the terms of the reservation in the decree of the Supreme Court referred to, absolute in allowing credit to Ventress in this judgment on account of the payments made by him to the heirs, and for whatever cause made. The lower court reduced the balance due on this judgment to $8,108.68, and restricted the effect of it to the interest of Mrs. Feltus, in this balance, a fourth interest, amounting to $2,027.40.

This restriction was owing to the fact that after the filing of the account by Ventress, as executor, all the heirs were cited, and none of them opposed the same, save Mrs. Feltus. It is true that Isaac D. Brown offered an opposition, but it was disallowed as coming too late. Their silence as to the account, when thus cited, and failure to oppose it, were regarded by the Court of the first instance as a tacit ratification of it, or an acceptance of it just as rendered.

The change made in it, adversely to the executor, was affected solely by the opposition of Mrs. Feltus, and she alone could be the beneficiaiy of it.

We cannot say the Court erred either in this, or in directing the mode and manner, of its settlement. The only error made was in the amount that was to accrue to Mrs. Feltus; it should have been one-fourth of $14,273.82, amounting to $3,568.43, instead of the amount stated in the judgment, $2,027.40.

II.

The amounts to be collated by Isaac D. Brown, under the judgment appealed from, are $130,625.45. His counsel urge that he should not be charged with the distributive shares in the crops of 1859 and 1860, sold by Hawkins and Norwood, inasmuch as he was. a minor at the time, and that he could be only thus charged in the event that these amounts were received by him after his majority.

It will be seen, that by the terms of the last will of James N. Brown, these annual distributions of the proceeds of the crops were required to be made, and the evidence shows they were made, and the whole or part of the minors’ shares invested as directed in the will. The property in these shares became vested in the minors in the hands of the administrators, and if lost subsequently, the loss was theirs. lies peril domino. Succession of Cochrane, 29 A. 232; Succession of Macias, 31 A. 129.

It is also contended that interest should be allowed him on the. amount of his legacy, from his majority till he received it. Interest is only due a legatee from the day of the demand of his legacy, under an express provision of lawn C. C. 1626,163].

There is no evidence of such demand before the sale was made to pay the legacy. Nor is there any force in the proposition that the plaintiff is estopped from opposing the allowance of interest by reason of her alleged assent and admission in the agreement for the sale of the property to pay the legacy. We do not so construe the ruling referred to.

The Judge a quo disallowed the interests, and the ruling was correct.

The evidence fully sustains all the items comprising the account, showing the sum total of the collations due.

A very large part of the charges have the effect of res judica ta against, him, resulting from legal proceedings to v'hicli he w>as a party.

The total amount fixed by the decree of the lower court is subject to the operation of a judgment rendered on the 31st of December, 1874, by the Parish Court of Iberville, and may be reduced by the effect of the 7th clause of that judgment, which need not here be recited, and will be alternately determined in the final partition proceedings to be hereafter conducted, as directed by the judgment of the lower court.

III.

Lastly, we come to the question of the collations to be made by the plaintiff, Mrs; Ventress.

It is urged, that in addition to the sums allowed against her by the judgment of the lower court, she should be. charged wdth the amounts she failed to collect from the previous executors, and the value of certain slaves donated to her by her father.

1, In regard to the first, we are satisfied that the losses resulting to the succession by the failures of the executors preceding plaintiff, were losses she could not have repaired by any possible diligence. The greater part of them were losses caused by the war, and were, in their nature, irretrievable. This charge against her is not pressed with vigor, and was properly rejected by the court a qua.

2. The next question touching the collation for the slaves, is the most serious one presented in the whole case, and we decide it only after the most mature deliberation, and exhaustive review of the authorities bearing on the subject, in view of the equitable considerations opposed to the charge, and it is with a feeling of regret that we are constrained to differ with our learned brother of the lower court in the conclusion reached by him on this point.

The plaintiff was one of the major heirs of her father at his decease. In his last will, as will be seen from the quotation heretofore made, the testator declared that lie had previously given, or advanced, to his major heirs, fifty thousand dollars. A part of this sum included ten slaves, donated by the deceased to his daughter, the plaintiff, on the 10th of January, 1859, and of which she had possession previous to that date. Four of these slaves were returned after the death of the testator or donor, to the trader from whom they were originally purchased, and the rest remained in the possession of herself and husband till their emancipation.

Under these facts, upon whom must the loss fall: upon the succession or upon the plaintiff?

This question must, in our opinion, be determined by the provisions of the Code of 1825, in operation at the opening of the succession of James FT. Brown.

Article 1328 of that Code provides:

Real estate (French text le Men fonils) given by the father, mother, or other ascendants to one of their children or descendants, and which has been destroyed’by accident while in the possession of the donee, and without his fault, previous to the opening of the succession, is not subject to collation.”

The corresponding Article 1250, of the Revised Codé, substitutes the words ini'movable property,” for the words real estate, without other change.

Article 1301 of the old Code further declares :

“ When slaves have been given,.the donee is not permitted to collate them in ltind; he is bound to collate for them by taking less, according to the value of the slaves at the time of the donation.”

Art. 1362: Therefore the donation of slaves contains an absolute' transfer of the rights of the donor to the donee in the slaves thus given. They are at the risk of the donee, who is bound to support their loss or deterioration, at the same time he profits by the children born of-' them.” See also. 14 L. 352.

(The italics in the above are our own).

From the above wé deduce :

That if land or other like immovable property is given, and the same is destroyed or lost without the fault of the douee, before the succession of the donor is opened, the donee is not required to collate, but the loss must fall on the succession.

If the rights and obligations of the plaintiff depended on this Article, she would not be discharged from the obligation to collate, because the loss did not take place before the opening of the succession, but afterwards.

This Article, it is apparent, however, does not refer to slaves.

If a sime was given, by the terms of the law, the obligation to collate existed whether the loss occurred before or after the opening of the succession, because it is expressly declared, that the title to the slave vests in the donee absolutely from the date of the donation.

We are aware, however, that the case of G-uillory, 29 A. 495, does not support this entire proposition, it having been therein held, that a slave lost to the donee by emancipation before the opening of the succession need not be collated; but this decision, as earnestly claimed, does not support the pretension of plaintiff’s counsel, that the donee is equally freed from the obligation to collate, where the loss, from a similar cause, has occurred after the opening of the succession.

In the case referred to, the donation Was made in I860, and the succession of the donee opened by his death in 1875, and the loss, of course, happened before the latter event. Here the gift was made, and the property delivered before the opening of the succession, and destroyed or lost after the opening, which renders the case cited wholly inapplicable to the instant one. Nor do-we find anything of sufficient force in the commentary on the Code Napoleon, (Mai'cadé’s) to which our attention has been called, to authorize us to depart, in the determination of this question, from what we conceive to be the plain and positive terms of our own law.

Another serious question is, however, presented, as to whether any effect can be given to the donation of the slaves, the same being by an act under private signature. It is quite cloar, if the effect of this donation was dependent solely upon this instrument and to be considered exclusively with reference to it, that its nullity would be apparent, and the case with the plaintiff, since the law declares such an act a nullity. It is, however, to be viewed and determined in connection with other provisions of the law.

Art. 2274, R. C. C. (2254, C. C.) provides: The confirmation, ratification, or voluntary execution of a donation by the heirs or assigns of the donor, after his decease, involves their renunciation to oppose either defects of form or any other exceptions.” See also 4 R. 157; 3 A. 522.

From the recital heretofore given, it is almost needless to say, that with respect to the gift in question, after the death of the donor, this confirmation or ratification took place. It is shown by the inventory of the succession, and by nearly all the legal and judicial proceedings that have transpired during the long course of the administration of the estate; and whilst the record abounds with such proof, we have been pointed to no act or expression, and can discern none on the part of the heirs, in disapproval of the donation, unless we except the repudiation of it by the donee after the loss of the slaves. Nor can the management or control of the property by the husband of the donee, if such was the case, detract from the legal effect of the ratification, to be inferred from the facts stated. And that ratification was to render the donation as perfect and complete as if the act conferring it had been an authentic act, under the declared principle that omnis ratihábitio retrotrahitur, ete.

The conclusion from the foregoing is therefore unavoidable, that the plaintiff must be charged with the $15,000, the price or value of the slaves.

The credit of $5,000 claimed by her counsel, and allowed by the Judge a quo, was proper. It was a palpable error upon the face of the record, by which it was sought to bind her for the amount stated, and she was clearly entitled to the benefit of the correction made. We see no reason to change any other item in the account of this collation.

The total of all amounts to be collated by plaintiff was fixed by the lower court at $96,221.91. Adding the value of the slaves donated will increase the amount to $111,221,.91.

IV.

The correctness of the collations to be made by the heirs of Jno. M. Brown, as fixed by the Judge a quo, are not controverted before this Court.

This disposes of all the matters in controversy.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be amended, by fixing the total amounts to be collated by Mrs. Mary E. Brown, wife of Henry J. Eeltus, at' one hundred and twenty-one thousand seven hundred and sixty-one dollars and fifty-four cents, ($ 121,751.54); the amounts to be collated by Mrs. Julia A. Ventress, plaintiff, at one hundred and eleven thousand two hundred and twenty-one dollars and ninety-one cents, ($111,221.91.)

The total amount of the collations to be made by Isaac D. Brown, subject to be reduced in the final proceedings of partition, as he has contributed or shall contribute to pay the debts and charges in the final account of Mrs. Julia A. Ventress, executrix, as provided by the judgment of tlie-Parish Court of Iberville, rendered on oppositions to her account, on 31st of December, 1874.

The amount allowed by the decree of tho lower court, on the judgment rendered on the opposition of Mrs. Eel tus to the account of James N. Yen tress; executor, to enure to the benefit of Mrs. Eeltus, under the conditions expressed in that judgment, is increased to $3,668.43.

The judgment, as thus amended, is affirmed, the costs of the lower court to he paid by the Succession' of Jamos N. Brown, and of this appeal, by the plaintiff, Mrs. Julia A. Yentress.

On Application bor Rehisarinu.

Bermudez, C. J.

The complaint that, relating to the item of $7,870.50, the dates are incorrect, of tho distribution of the shares, is well founded. It was an inadvertence. The dates should have been 1863 and 1864. This mistake does not, however, justify the demand urged in the first ground for relief.

Tlie record shows that the shares accruing to Isaac D. Brown went into the possession of John M. Brown, who was his tutor.

It is true, that we said that those shares were invested. This investment is denied. We should have confined ourselves to the statement that they had been received by John M. Brown.

The vouchers given by him do not show explicitly that he signed, as tutor, but establish that he received them. This could only be as tutor, for he could not receive them for the minor otherwise. Whether, after being so received, they were or not invested by him, under the directions of the will, is immaterial in these proceedings. His failure, to have done so might have affixed upon him a responsibility wliich cannot be fastened upon the heirs in the partition of the succession residue.

The proposition, that when the same person is at the same time administrator and tutor of some of the heirs, his possession of the estate is that of an administrator, is correct and supported by authority. 30 A. 745." Such is also the case when the executor is also the universal legatee, 33 A. 594; 1 Woods, 144 ; but this is true only as long as a distribution, or some significant or characteristic act, indicative of a termination of the possession as administrator has not occurred.

The receipt of the shares for the benefit of a minor, by one who is his tutor, is of that description, and operates a divestiture of his tenure ■or possession, as administrator, at the same time that it concludes the minor.

On the second ground for relief, we are satisfied that legal interest should have been allowed to Isaac D. Brown on his legacy, from his majority, as alleged in the petition filed on the 5th of October, 1870, which is the day on which the executor judicially admitted the eligibility of the bequest, and the running of interest upon it. This admission implies a previous demand for payment, which the law will presume in a case like this. Equity, besides, entitles Isaac D. Brown to that allowance. Interest was allowed to his sister, Mrs. Feltus. There is no reason why lie should not also receive it.

It is ordered, that our previous decree be amended by inserting at the end thereof, the following special decree:

“ It is further ordered and decreed, that the judgment appealed from be amended by allowing to Isaac D. Brown, five per cent, interest per annum, on fifty thousand dollars, from the date of his majority, October 18th, 1869, to the time of his purchase of the Manchac Plantation, viz : the 2d of July, 1872, when he retained, out of the price of sale, the amount of his said legacy ; the sum thus accruing to him to decrease by as much the amount to be collated by him.

It is further ordered, that thus further amended, the judgment-appealed from be affirmed with costs.”

It is further ordered, that our previous judgment thus itself reformed, remain undisturbed.

On Behearing.

Levy, J.

Our attention has been called by plaintiff’s counsel, in this application, to the fact that it is shown in the record that, on the BOtli December, 1870, ten thousand dollars were paid on the legacy of Isaac D. Brown. This will require a modification of our judgment touching the amount allowed in our previous judgment, on account of the interest on this legacy. Legal interest should be charged on'the entire amount of the legacy of $50,000, from the 18th October, 1869, to the- 30th December, 1870, and at this last date, the sum total.of principal and interest should be credited with $10,000 then paid. Interest should be charged on this balance to the 2d of July, 1872, the' date of the sale of the Manchac Plantation.

Our former decree is, therefore, amended as herein stated, and as thus amended will, in all other respects, remain undisturbed.


source: Caselaw Access Project

author: Levy, J.

license: Public Domain

text:
    No. 8338.
    William C. Harrison et al. vs. The New Orleans Pacific Railway Company.
    The doctrine is now settled that the Legislature has the power to authorize the building of a railroad on a street of a city, and may directly exercise this power or devolve it upon tine local or municipal authorities.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J., acting for Lazarus, J.

      W. S. Benedict, for Plaintiffs and Appellants.

      Kennard, Boioe cii Prentiss, for Defendant and Appellee :
    In Louisiana, the fee of the streets of a city is in the public, and is administered by the Legislature primarily, as chief representative of the public interest, and, subject to this control, by tbe municipality through its legislative body. Renfchorp vs. Bourg, 4 M, 97» 135 ? Mayor vs. Hopkins, 13 La. 326, 330 ; Dillon on Municipal Corporations, 3d Ed., § 652.
    Where the fee of the street is in the public or in a municipality for public use, the right of the Legislature and city council, together, to allow a steam railway to pass a track through such street, as has been done in this case, is beyond serious question. There is no-respectable authority to the contrary. Railroad Company vs. City of Hew Orleans, 26 An. 517; on rehearing, p. 529; Dillon on Municipal Corporations. § 556, 3d Ed. § 702.
    The leading cases where abutting proprietors have been allowed to enjoin or recover damages against a railway company passing its track through a street, are where such proprietors had bought and owned the fee of the street to the centre, and where the public had a mere-easement. Williams vs. H. Y. Central Railroad, 16 H. Y. 97.
    The fee of Thalia Street in Hew Orleans being in the public, the use of it as a highway must be regulated by the political or legislative department of the government. Railways are improved public highways, State vs. Hicholls, 30 An. 987, and the passing a single track through such a street, laid flush with the surface, and paving the street with square blocks of stone, cannot be a legal injury, but can only constitute a regulation of a public high way. To reconcile and control the movements of a crowded commerce in a city is not a judicial function. The courts should not and will not add to theic functions those of such legislation. Mayor vs. Hopkins, 13 La. 330; Brown vs. Duplessis, 14 An. 842; Inhabitants of Melpomene Street vs. Hew Orleans, 14 An. 452; Hoyle vs. Hew Orleans', 23 An. 537; Railroad vs. Hew Orleans, 26 An. 529; Dillon on Municipal Corporations. 3d Ed. § 702; Kellinger vs. Railroad Company, 50 H. Y. 206; Miller vs. Railroad Company, 10 Reporter, 197.
    Ho injunction should ever have been granted in the case at bar. 10 Reporter, 197; 50 H. Y. 206 ; 23 An. 537.
    The permission given in the ordinance in question in this cause is not in violation of the City Charter of 1870, nor does it violate Article 56 of the Constitution of 1879.
   The opinion of the Court was delivered by

Levy, J.

Plaintiffs, about forty in number, property owners on Thalia street, in tbe City of New Orleans, complain that tbe said city, on tbe 3d of December, 1880, passed an Ordinance, No. 6732, supplemental to Ordinance No. 6695, granting tbe right of way through Thalia street to tbe New Orleans Pacific Eailway.

They allege that said ordinances are illegal and void, granting tbe sight to said Company to make tracks, switches, turnouts, sidings and structures of every kind, through said street to the river front, and to operate the same by steam. That they are the owners of property fronting on said street; that the same is a public highway and absolutely neeessary to enable them to make use of their property and enjoy the rights of ownership thereon ; that the narrow width of said street is such, that the city liad no power to grant any right of way to any railway company, upon any street which would impair its usefulness to the public, or would enable said Company to obstruct the street by permanent structures, inconsistent with its use as a street. If a track is laid thereon, it is too narrow, from Claiborne, to Water street, to permit any vehicle to pass through, or stand upon said Thalia street, and no sufficient space would remain on either side for that purpose, that would enable plaintiffs to use said street as a public highway. That said city and Company are attempting to pervert said highway from its original purpose, in an unauthorized and illegal manner. They aver that no authority was delegated to said city by the legislature, and the city is prohibited by Article of the Constitution of 1879, from granting such right of way. That if said track is laid upon said street, it will destroy the value of plaintiffs’ property, prevent every mode of locomotion on said street, and convert it into a private ■way for the benefit of said Railway Company, and plaintiffs will suffer irreparable injury.

They allege that they have suffered damages in the sum of $1,001, for whieh elaim is made. They pray for an injunction restraining said Company from laying any track upon Thalia street, from Claiborne to Water street, and from constructing any switches, turnouts, sidings and structures thereon.

An injunction was issued as prayed for.

By an amended petition the City of New Orleans was made a party to the suit.

The defendant Railway Company filed the peremptory exception of no cause of action, and subsequently an answer, admitting the adoption of the Ordinance in question, averring its legality and otherwise denying generally all the allegations of the plaintiffs’ petition.

There was judgment maintaining the exception, dissolving the injunction and dismissing plaintiffs’ suit with costs. Plaintiffs take this appeal.

Practically, both the exceptions and the merits were covered by the ■evidence introduced on both sides, and the facts, as well as the law, are fully set forth. We therefore proceed to the consideration and decision of the case, on the evidence presented in the record and the points raised. High on Injunctions, 817, 839; Dillon on Municipal Corporations, 661;.558-9.

We shall first consider the validity of the grant by the City of New Orleans, and whence it derived the right to make the same. “ It lias often been decided and is settled, that the legislature has the power to authorize the building of a railroad on a street or highway, and may directly exercise this power, or devolve it upon the local or municipal authorities.” Dillon on Mun. Corp., § 655; 27 Penn, St. 839.

Act No. 14 of Session of 1876, grants to the N. O. P. Railway Company the right and power to construct and maintain its said railroads, or any part of the same, and to have the right of way therefor across or along or upon any waters, water courses, river, lake, bay, inlet, street, highway, turnpike or canal within the State of Louisiana, which the course of said railways may-intersect, touch or cross; provided the said Company shall preserve any water course, street, highway, turnpike or canal, which its said railways may so pass upon, along, or intersect, touch or cross, so as not to impair its usefulness to the public unnecessarily,” etc. The Act of 1870, establishing the city government, gives to the municipal corporation the right to regulate and make improvements to the streets, public squares, etc.

•• Ordinance No. 6732, Administration Series, of December 3d, 1880, authorized and empowered said Railway Company to locate, construct and maintain an extension of its railroad, with all necessary tracks, switches, turnouts, sidings: and structures of every kind, convenient and useful,'and appurtenant to said railroad, upon lines and levels to be furnished by the City Surveyor, across Claiborne Canal into and through Thalia street to the river.front, and to operate the same by steam or otherwise, for the transportation of cotton, tobacco, grain, merchandise and other freight, etc.; provided, there shall be but one track laid on Thalia street, from Claiborne to Water street,” and further providing for the proper paving, grading, laying of the rails, etc., with a view to rendering said street passable and convenient-to the public.

- While admitting that “ the fee of the streets .is in the public,-or the city for public use.,.” plaintiffs contend that the city has no right?-to do any act which would embarrass the free use of the same, and that the use of Thalia street granted to the Company, does embarrass its free irse, and virtually and practically grants the exclusive use to the Railway Company.

If the fee in the streets is in the public, or in the municipality in trust for the public use, the doctrine is settled ■ that the legislature may authorize them to be used by a railroad' company, without compensation to adjoining owners, or to the municipality, and. without the consent, and even agcdmt the wishes of either. Dillon Mun. Corp. § 556 ; 24 Iowa, 455 ; 36 Penn. St. 99.

Intliocaseof Commonwealth vs. Erie and Northeast Railroad Company, reported in 27 Pennsylvania State Reports, 339, this question is elaborately and ably discussed; that Court, through its learned Chief Justice Black, said:

The right of the supreme legislative power to authorize the building-of a railroad on a street or other public highway, is not now to be doubted. It has been settled not only in England, (1 Born. & Ad. 30) but' in Massachusetts, (23 Pick. 328) New York, (7 Bai'b. 509) and in Pennsylvania, (6 Wheat. 43). If such conversion of a public street to purposes for which it was not originally designed, does operate severely upon a portion of the people, the injury must be borne for the sake of the far greater good which results to the public for the cheap, easy and rapid conveyance of persons and property'by railway. The commerce of a nation must not be stopped or impeded for the convenience of a neighborhood.”

In 18 Barbour N. Y. Reports, Williams vs. New York Central Railway Company, the Court said:

“ The use of a street by a railroad, is one of the modes of enjoying a public easement, and the only restriction upon its application is, that the use to be made of streets must not. be utterly incompatible with, or subversive of the ends for which they Avere established; and, if neither the constitution nor the laws have been transcended in agiAren case, no individual can sustain a suit against a party exercising a right granted him by competent authority.”
“The aid of an injunction cannot be invoked to prevent, nor Avill an action lie to redress,'a consequential injury necessarily resulting from the lawful exercise of a right granted by the sovereign power of the State, or authorized by competent municipal authority.”

These doctrines are maintained. 12 Iowa, 246; 10 Bush. Ky. 288.

In the case last cited, it AA'as held, that OAvners of lots bordering on streets, hold them subject to the right of appropriation of the street to such public uses, promotive of commerce and business, as the general good of the city or town may require, provided such appropriation is not incompatible with the ends for Avhich the street Avas established, as a public Avay for foot passengers, hors mien and the vehicles inordinary use ; and also, that private individuals seeking relief against a public nuisance, must show that they suffer an injury distinct from that suffered by the general public, and that the injury is one that the public, in the promotion of the general interest, has not the right to inflict upon them without compensation. See also, 87 Pa. Stat. 282 ; 3 Camp. 226.

In 50 N. Y. 206, “plaintiff’s complaint alleged that defendant laid its track so near the sidewalk in front of his premises, as not to leave sufficient space for a vehicle to stand, and that his family are thereby incommoded in leaving and returning to their residence, and the rental value of his promises is depreciated,” and on demurrer, it was held that the complaint did not constitute a cause of action.

Dillon on Municipal Corporations, § 581. says:

“But it is not every obstruction, irrespective of its character or purpose, that is illegal, even though not sanctioned by any express legislative- or municipal authority.”
“ Tho law on this point is well stated by the Court in Rex vs. Russell, 6 East. 427: That the primary object of the street is for the free passage of tho public, and anything which impeded that free passage, without necessity, was a nuisance. That if the nature of the defendant’s business was such as to requiro the loading and unloading of so many more of his wagons than could be conveniently contained within his own private premises, he must either enlarge his premises or remove his business to some more convenient spot.”

Same principles applied to congregation of carts in the public streets, for tho reception of slops from a distillory. Denio, N. Y. 524. To the keeping of coaches at a stand in the streets, waiting for passengers, 3 Campb. 226. To a timber merchant depositing timber in the street, 6 East. 230.

In Pierce on Railroads, p. 230, the following principles are laid down, which to our minds are sound and conclusive: The improved method of conveyance may incidentally increase or depreciate the value of property on the highway; but, provided the right of ingress and egress, of passage and ropassage, is left reasonably free to the adjoining owner, the injury is one which the law does not recognize. A railroad laid out over or upon a highway or street, under proper legal authority, is within the legal intent of tho original sequestration or dedication, and is not an invasion of private right entitling the owner to compensation, by virtue of the constitutional prohibition, provided it is so laid and constructed as not to be incompatible with the use of the highway in the other usual modes of passage and conveyance. It is not necessarily a nuisance, even in a largo city, although it may, to a certain extent, interrupt the free passage of other kinds of vehicles; and unless unrea • sonable or permanently exclusive in its occupation of the highway, when authorized by competent authority. The Statute which authorizes the structure to be laid, legalizes the obstruction, and is a defense to an action or an indictment.”

At page 337 : “ Such occupation is, indeed, necessarily exclusive while the railway carriages are passing, as two bodies cannot, under a physical law, occupy the same space at a time ; such temporary exclusive occupation, however, is not peculiar to railway carriages, but attaches to all carriages while passing or stopping. At other times the space covered by the rails, and even the rails themselves, are open to general •use.”

“ The circumstance that improved or different modes of enjoying the public use have affected injuriously or beneficially his remaining estate is hut one of the incidents to which all property is subject in civilized life, not only from the use of highways, but from the use of adjacent land and the various changes in the community.”

The authorities which we have above cited, and to which we have made reference, satisfy us that the judgment rendered in the court a qua is correct, and should not he disturbed hy us. We are satisfied that the use of the street under the right granted to the Railroad Company cannot fairly he coustrued into an exclusive use, or as operating a permanent obstruction.

It is true there may be at times a temporary obstruction and delay and inconvenience to vehicles other than the railway carriages, hut these are inconveniences to which individuals may he temporarily subjected, and to which the public interests are entitled. We find the street sufficiently wide for the use of the railway, and while the trains are passing or stopping along the street, ordinary vehicles will he somewhat restricted in their movements and passage, it is not such unreasonable delay and obstruction as would justify the Court in enjoining the Railway Company from the enjoymentof the right which has been granted.

The judgment appealed from is affirmed at costs of appellants in both . Courts.


author: Levy, J. Eenner, J.

text:
    No. 8232.
    The State of Louisiana ex rel. Henry Samory vs. The City of New Orleans.
    This is, to all intents and purposes, a suit against the City of New Orleans, which is hy law dispensed from giving hond in judicial proceedings.
    APPEAL fr'om the Civil District Court for the Parish of Orleans. Monroe, J.

      D. G. t& L. L. Labatt, for the Appellee:
    1. Tlie City of New Orleans, as an ideal being, is in no sense a party respondent to the order to show cause, and even if it were, the command of the court to the Administrators and Mayor individually to perform certain ministerial duties, cannot he suspensively impeded or suspended hy their appeal, without complying with the law as to other litigants, on giving hond and surety.

      2. That the exemption from giving bond and surety accorded to the City of New Orleans, has never been construed to exempt its officers, when they were personally parties, and judgment making mandamus peremptory was rendered against them; such exemption being in derogation of genoral laws, it is strictly oonstrued, and the respondents in this proceeding are not within the terms or reason of the exemption. See 21st A. p. IT?; and 29th A. It. pp. 53 and 54.
    3. The City of Now Orloans has no interest to appeal from the peremptory older to its officers, whose conduot is supposed to be inimioal to her desires and contrary to the will of the Legislature, as plainly expressed in the statute creatingthe bonded obligation held by relator. The corporation, separately consideied, is presumed incapable of committing a breach of contract, except through the intervention of her offioers, and as in the oase of theKing in England, the errors and misoonduot of her agents, bywhom she has been deceived and induced to do a temporary injustice, may bo averted by mandamus. 3d Blackstone, p. 255.
    4. When persons are clothed with official power they assume the duties, of a publio officer, and have sworn to perform those duties, and if they negleot or refuse to do so, any peraon whose rights aro injuriously affected is entitled to demand relief; and when peremptory adjudged delinquent, it is an individual judgment only'to be suspended as in other oases. Moses on Mand., pp. 13-16.
    5'. Whether the corporation he, or not, a party, the exemption does not extend to its officers in a mandamus. If the legislature had so intended, it would have said so.

      O. F. Bucle, City Attorney, and Wynne Boyers, for the Appellant.
   On Motion to Dismiss.

The opinion of the Court ivas delivered by

Levy, J.

Appellee moves to dismiss this appeal on the ground that defendants, appellants, have failed to give bond and security as required by law, holding, 1st: “That the exemption of the City from giving bond in judicial proceedings does not apply to proceedings against its officers when sued in their official capacity, to perform a ministerial duty imposed by law.” 2d: “ That such provision of law is in derogation of the general law, and cannot be extended beyond its terms.” 3d: That the City is an ideal being in law, and only nominally and technically named in the writ, and is not a real party, etc, 4th: That the officers named are not exempted from giving bond, etc., as they, individually, as ministerial officers, and not the city per se, are amenable to the writ.

In plaintiff’s (appellee’s) petition in this case, the character of this action is distinctly defined, and the real defendant designated. In his prayer he uses this language : “ Delator prays for a writ of mandamus to the City of New Orleans, through its Mayor and Administrators,” (naming them). Independent of this the suit is to all intents and purposes against, the corporation of the City of New Orleans, the object being to bind and affect the City in her corporate capacity by the judgment sought to be obtained against her. The City is entitled to the appeal without giving bond.

Motion to dismiss is denied.

On the Merits.

Eenner, J.

The reasons assigned in our opinion just rendered, in the case No. 8233 of our docket, between the same parties, apply perfectly to all the issues presented in this case, and conduce to a similar decree.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from he reversed; that Relator’s demand he rejected; that' the alternative writ of mandamus issued herein he dissolved, and the peremptory writ denied at Relator’s costs in both courts.


author: Lew, J. Fenner, J. Levy, J.

text:
    No. 8233.
    The State of Louisiana ex rel. Henry Samory vs. The City of New Orleans.
    This is a suit by the holder of certain, bonds of the City of New Orleans, issued under Act No. 49 of 1869, to compel by Mandamus the said City to pay the interest due ou those bonds in 1881, out of tbo revenues of that year. Held, that the revenues of that year being already absorbed by the expenditures, as shown by the budget, the Relator is not entitled to the Mandamus.
    The writ of Mandamus should not he granted in cases where, if issued, it would prove unavailing.
    The Mandamus, if granted, could not be executed by the levy of an additional tax, because the Relator has not aslfed for the levy of such additional tax.
    The City of New Orleans, in the absence of a judicial decree, could not legally, of its own accord, levy a tax beyond the constitutional limitations, to'pay its debt.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      1). G. & L. L. Labatt, for the Relator and Appellee:
    1. Whenever a party interested in the performance of a ministerial duty imposed by law upon apublio officer of a corporation, shows a deliberate refusal or neglect to perform, at the specified time required by law, by which he will be injuied or apprehends injury or damage, and such party has no other adequate remedy at law, he will bo entitled to the writ of mandamus to compel performance.
    *2. Where the City of New Orleans has been duly authorized by legislative acts to negotiate a loan and issue bonds payable in the future, and provision is made therein for incorporating in the annual budget the interest falling due semi-annually as a liability to bo provided for by taxation and for a sinking fund to retire or pay, the bonds, and the Council refuse to exercise the powers conferred, or appropriate the revenues to other objects, a mandamus will lie at the instance of any party injured to compel obedience, and no subsequent limitation, legislative or organic, can justify neglect or refusal to comply. See 8 Otto, TT. S. vs. New Orleans.
    3. Where bonds are issued under legislative authority by a municipal corporation, and at the time there exist no legislative limitation of taxation to pay said bonds at maturity, or to provide for the interest accruing, no subsequent legislation, whether statutory or organic, can impose a limitation depriving the holders of the right to be paid as fixed by the contract, and it is eminently just, that in such a case, the courts should enforce obedience by mandamus.
    4. “Any law which in its operation amounts to a denial or obstruction of the rights accruing by a contract, though professing to act on the remedy, is directly obnoxious to the prohibition of the Constitution." 22 Graft. 265; 6 Cr. 87; 8 Wb. 1; 2 How. 605; 32 Wh. 233 t 4 “Wall. 553; 2 Wall. 10; 13 Wall., White vs. Hart, 96 IT. S. 595; Ranger case, 8 Otto : Wolff, 12 Otto, and Premium Bond case, La. An. R.
    5. Tho right to a mandamus is based on three things, which appear in this Record, conclusively; 1. A clear legal right in relator. 2. A corresponding-ministerial duty in the defendants. 3. A want of any other specific or adequate remedy. C. P. Article 834; Strong, C. J., in Commonwealth vs. Pittsburg; 34th Penu. Stat. 509 ; 15 A. 334, 603; 9 A. 496 ; 2 L, 395 ; 5 L. 332 ; 6 L. 598 ; 7 L. 511; 9 L, 332; 21 A. 552.
    6. When the time has passed to do a particular act required by a maudamus, and respondents by appeal suspend its performance, this Court will so modify the writ on affirmance as to malee it effective and prevent a denial of justice. Commr. vs. Sellew, 9th Otto,

      O. F. Buck, City Attorney, for Respondent and Appellant:
    1. In virtue of the Act Ho. 5, Acts of 1870, Extra Session, no creditor of the City of Hew Orleans, whether he he holder of a liquidated or unliquidated claim, can compel the payment of money by means of the writ of mandamus, by appropriation out of general receipts and revenues.
    2. On general principles, mandamus will not lie to compel the payment of money when then» is an adequate remedy at law, by ordinary action, to reduce the claim to judgment.
    3. Mandamus to compel the performance of a “duty" enjoined on the municipal government, will not issue when the duty, so-called, is part of the discretionary exercise of legislative* authority, and not a mere absolute ministerial one.
    4. The writ of mandamus to levy a tax, or provide the funds wherewith to pay a bonded debt, is not allowed against a municipal corporation, without judgment previously obtai/ned, except in the single instance where a specific tax is directed by the Legislature to pay a particular debt authorized by it. The tax so directed to be levied is part of tho contract, and therefore permitted to be enforced without judgment on the debt.
    Sec. 5, Act 49, Acts .of 1869, provides that it shall be the duty of the Common Council of the City of Hew Orleans, annually, (at the formation of the annual budget) to appropriate a sum sufficient to pay the interest on certain bonds authorized by said Act. The limitation on the power of taxation was fixed at 14 per cent. This “ duty " was continued in Act Ho. 7, Acts of 1870, (City Charter) and the rate of tax raised to 12 per cent. By subsequent legislation, Act 31, Acts of 1876, the Premium Bond Act and Constitution of 1879, the foregoing provisions were repealed; a tax of fifreen mills authorized — five mills for the benefit of the only class of bonds retaining recognition iu the statutes, and ten mills-for the support of the government. It is submitted on this statement of statutory provisions, that a mandamus cannot be made.peremptory, directing the City Council to appropriate a certain amount of money out of the revenues which, in its discretion, acting in its legislative capacity it has the right,- if it is not its positive duty, to do so, to appropriate to tho general uses of the government. State ex rel. Moore vs. City, 31 An. 726 ,• B. Saloy vs City, 33 An. 79.
    A holder of municipal bonds, the interest on which is'to be paid with money to be appropriated out of general revenues of the corporation, has no vested right in any particular rate of taxation, and could not by mandamus compel the levy of a tax to provide a fund out of which his interest shall be paid. A fortiori, where the limit of taxation has been reduced for general purposes, to a rate intended to provide only the necessasy alimony of the government, the duty to provide for the payment of such interest is, ipso facto, removed or repealed; and whatever other remedy the creditor may have, ho cannot by mandamus compel the appropriation of money to pay his claim out of funds expressly and exclusively dedicated to- the necessary current expenses of the government.
   On Motion to Dismiss.

Tlie opinion of tlie Court was delivered by

Lew, J.

The motion to dismiss, herein, is similar to and based on the same grounds as that in N°, 8232, just decided, .and for the reasons therein given, this motion is denied.

On the Merits.

Fenner, J.

By Act No. 49 of 1869, the legislature of the State authorized the City of New Orleans to issue bonds to the amount of five millions of dollars, to be used in exchange for, and in payment of certain then existing indebtedness of the City, evidenced by city notes, judgments, outstanding warrants, etc.

By the Act No. 93 of 1856, in force at the time, the taxing power of the City of New Orleans was limited to one and one-lialf per cent, upon the assessed value of both real and personal property, except as to certain then existing indebtedness.

The Act of 1869 did. not, by any express jiro vision, enlarge the taxing power of the City, or direct or authorize the levy of any special tax for the redemption of either the interest or principal of the bonds.

The only provision made for that purpose, with which we are here concerned, was the following:

“ That to secure the payment of the interest and capital of all the bonds to be issued under this Act, it shall be the duty of the common council of said City, within one month after the passage of this Act, and annually in the month of January thereafter * * * to appropriate a sufficient sum out of the revenues of the current year, to pay the monthly sum of $29,166$,” which sums, it is further provided, shall be. deposited monthly, by the city treasurer, with the fiscal agent, and by him applied exclusively to the semi-annual payment of the interest coupons on said bonds.

The interest on the bonds was regularly paid until 1876, by the levy of an annual tax exceeding one and one-lialf per cent, the taxing limit having been extended to 1.75 per cent, by the legislative Act No. 7 of Extra Session of 1870, and the limitation as to taxes for interest on the bonded debt having been subsequently entirely removed by Act 73 of 1872.

In 1876, tlie Act No. 31, commonly known as the Premium Bond Law, was passed, which restored the one and one-lialf limit on the taxing-power of the City which had existed at the date of the Act of 1869, which authorized the funding of all the bonded indebtedness of the City into Premium Bonds, and required that all of said tax which should be levied for the payment of interest or principal of bonds, should be devoted .to the bonds issued under the funding scheme therein provided.

From the date of the passage of this Act, up to the adoption of the Constitution of 1879, the City authorities^ continued to levy annually a tax of one and one-half per cent, but has devoted the whole of it to City-expenses or alimony, and to the Premium Bonds issued under the Act of 1870, and has not provided for the interest on the bonds of 1869.

An Article of the present Constitution of the State, adopted in 1879, restricted the taxing power of the City to one per cent., but, at the demand of bonded creditors, we held that, if necessary for the performance of their contract, the City was bound to exercise the taxing power which it possessed at the date of said contract, notwithstanding the subsequent restriction. State ex rel. Moore vs. N. O. 32 A.

In conformity to this decision the City, up to this date, has continued to levy annually a tax of one and one-half per cent.

Act 38 of 1879, makes it the duty of tlie council, on or about the 2d Tuesday of December, 1879, and annually thereafter, to propose a detailed statement of receipts and expenditures for tlie ensuing- year, to publish said statement for ten days, and, at their first meeting- after such publication, to adopt said statement or estimate, and to levy a tax to meet the expenditures thus estimated not to exceed the limit prescribed by law; and provides that the estimate thus adopted shall constitute an appropriation for the purposes therein set forth, "and that no money shall be drawn from the treasury except upon such appropriation ; and further provides that appropriations made in said estimate for any particular purpose, shall not be diverted from that object by any cause or reason whatsoever * *■ but shall remain and be kept sacred to the object of the appropriation.” t

On the 24th of December, 1830, Relator, holder of bonds issued under the Act of 1869, filed his petition containing all necessary and appropriate averments, and praying for a writ of injunction to restrain the Mayor and Administrators from adopting the budget or estimate without providing therein for payment of the interest on liis"bonds, and also for a writ of mandamus commanding" them to provide and set apart, out of the receipts and revenues of the year 1881, a sum sufficient to pay the semi-annual interest on his bonds falling due on the 1st March and 1st September, 1831, and to place and insert said amount in tlie estimate of liabilities and expenditures of the City for the fiscal year of 1881, according to law, and also to provide for the annual interest on said bonds as it matures for each succeeding year, until full satisfaction of his contract.

The writ of injunction was not allowed, but by an order of the Court dated December 27th, 1880, the alternativ e writ of mandamus was issued, made returnable on January 8, 1881, on which day the City authorities filed their answer or return to the writ, setting up numerous causes why the writ should not be made peremptory, which will hereafter be noticed in the course of this decision.

The Court a qua rendered judgment making the mandamus peremptory, “in so far as to order the Respondents to provide and set apart from the revenues of 1881, the sum of $6,125, to meet and pay the semiannual interest on the bonds held by Relator.”

From this judgment the Respondents alone have appealed, and the Relator has asked no amendment thereof; so that the sole.question before us is to determine whether this particular judgment shall be affirmed, or reversed, or amended to the advantage of the appellants. We have no concern with any different or additional relief to which Relator might be entitled in another, or even in the present proceeding.

Amongst other causes why the mandamus should not be made peremptory, the Respondents returned, in substance, and the evidence establishes, that on the 18th day of December, they had proposed and published their detailed statement of receipts and expenditures, and that on the 29th December, they had ado|)ted said statement, and had levied a tax of one and one-half per cent, which exhausted the power of taxation possessed by them, either under existing law, or under the law which was in force at the time when Relator’s bonds were issued; and that the whole revenues therefrom, together with all other revenues of the City, would be absorbed by the appropriations made in the said budget or detailed statement.

It cannot be denied, that in proposing, publishing and adopting the budget, at the times and in the manner in which these things were done, the Respondents acted in simple obedience to the imperative mandates of the Act 88 of 1879, heretofore referred to. There was nothing in the judicial action had in the Relator’s proceeding, which, in any manner, restrained or controlled their action in the premises, or which could have authorized or excused them for postponing the performance of the said functions bej'ond the times fixed in the law itself, to await the determination of the claim asserted by him and denied by themselves.

In considering whether the judgment appealed from shall be affirmed or reversed, we are immediately confronted with the practical question as to how the peremptory mandamus ordered by said judgment shall be executed.

“ It is a fundamental principle of the law of mandamus,” says Mr. High, “ that the writ will never be granted in cases where, if issued, it would prove unavailing. -And wherever it is apparent to the Court that the object sought is impossible of attainment, either through want of power on the part of the persons against whom it is invoked, or for other sufficient causes, the Court will refuse to interfere.” High’s Extraordinary Rem. § 14, and authorities there cited.

The mandamus orders the Respondents to provide and set apart from the revenues of 1881, the sum of $6,125, to meet and pay the semiannual interest to fall due on the bonds hold by Relator,” etc.

It is apparent that it can be executed in only one of two ways, viz :

1st. By taking the amount from the revenues already raised, and the whole of which have already been appropriated to other purposes; or

2d. By levying an additional tax, for the -purpose of raising the additional revenue needed to meet Relator’s demand.

As to the first method: It is not established that there are, or will be, any revenues of 1881 in excess of the appropriations made in the budget.

The law of 1879 is absolute, that appropriations made in the budget for any particular purpose, shall not be diverted from that object for any cause or reason whatsoever, * * but shall remain and be kept sacred to the object of the appropriation.” We are at a loss to discover where we are to find authority to compel the Respondents to violate this plain mandate of the law. This Act is no novelty in legislation. A similar provision is found in Section 124 of Act 164 of 1856, in force at the date of Relator’s contract, and his case would not be different if that Act remained in force.

However clear may have been Relator’s right to have had an appropriation made for his demand, and however clear the duty of Respondents to have made it, the fact remains that the appropriation was not made. This fact alone would not, perhaps, have been sufficient to defeat his right by mandamus, to compel the city authorities to do, out of season, that which, after proper demand a.nd putting in default, they had failed to do in season. But it is supplemented by the additional fact, that the entire revenues have been actually appropriated to other purposes, and that the law forbids absolutely the diversion of the revenues from those purposes.

Supposing, for the sake of argument, that Relator should have the right, in some legal proceeding, to go behind the law and to assert a preference on the revenues over some/or all of the appropriations, and to claim the. annulment or reduction of some or all of them, in order that his claim might be paid — could such a right bo asserted in a mandamus proceeding ? An infinite number of objections to such an idea immediately suggest themselves, chief amongst which is the fact that third persons have acquired rights and claims in and upon the several appropriations, of which they cannot be divested in a mandamus proceeding to which they are not parties.

Mr. High only enunciates a self-evident proposition when he says that courts will refuse to interfere hy mandamus, " especially when it is apparent that the interests of third parties, not before the court, are involved.” High on Ex. Rem. § 39.

How should Respondents execute the mandamus herein, if maintained 9 What appropriation shall they annul or reduce, in order to provide for Relator’s demand 9 The mandamus does not specify. Suplióse they should decide, for example, to provide for it out of the appropriation made for the payment of "judgments.” Would not the judgment creditors entitled to the benefit of that appropriation have the right to enjoin them from so doing 9 If, on the other hand, they should determine to reduce all the appropriations rateably, that would only expose them to the same assaults by a multitude, instead of by a few interested parties. If it be said that they may provide for it out of appropriations for city expenses, the reply is, first, that they are not ordered so to do; and, under the law, appropriations for these purposes are as inviolable as any others; secondly, that, no doubt, upon these funds as well as others, employees have acquired rights; thirdly, that these appropriations may be essential to the alimony or support of the City.

We are not to be influenced by the fact, that the provision sought to be enforced here is for only $6,000. It might as well have been for $600,000, the allowance of which might completely paralyze the functions of the City government.

We are not concerned, here, with the question of the inadequacy of other legal remedies for the enforcement of Relator’s rights. That is a reason for the exercise of the remedy of mandamus, when that remedy is otherwise adequate and appropriate. But we hold that, in such a matter as that now under discussion, mandamus is not, under any circumstances, an adequate, appropriate, or even legal remedy, and we wish it distinctly understood that we decide nothing else.

II.

Can the mandamus be executed by levying an additional tax for the purpose of providing for Relator’s demand 9

We are dispensed from the discussion of the question of power or duty on the part of the Respondents to levy any tax beyond that already levied, by the following distinct admissions in the brief of Relator’s counsel, which are sustained by the record, and which we quote:

“ Relator does not ask the levy of any tax, either directly or indirectly, nor does he claim that the levy of a taxis required and necessary to satisfy his demand. Not a word can he found in his petition or its prayer to the offect that ho asks, either directly or indirectly, the levy of any tax whatever, as a condition of the City’s contract with him.”

In presence of the limitation imposed by ArticleJJOh of the Constitution, it is clear that the City authorities have no right, of their own motion, to exceed that limitation.

Tho question whether the limitation can be enforced against the rights of contract creditors is a judicial question. When such a question has been once determined by tho Courts in favor of a particular class of contract creditors, thoy must obey the judicial mandate, and respect thereafter the rights of such creditors. But, in absence of such judiciul determination, they have no power to exceed the limit imposed upon them by the Constitution.

It being conceded that tho mandamus herein, does not compel or require them to levy a tax in excess of that already levied by them, which exceeds the Constitutional limitation, they have no right to do so, and there is an end of this question in the present case.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from ho reversed, that the Relator’s demand he rejeetod, that the alternative writ of mandamus issued herein be dissolved, and the peremptory writ denied, at Relator’s costs in both Courts.

On Application por Rehearing.

Levy, J.

An attentive perusal and consideration of the brief of the learned counsel of Relator, lias tailed to satisfy us that there is any error in the decisions already made by us in these cases. Tlie case of DeLeon vs. City, this day decided, is differentiated from these in the nature of tho demand, and we. therein repeat tho reasons which to our minds are conclusive agaiust Relator’s demand, so strenuously urged in liis application for a rehearing.

A rehearing is, therefore, refused.