State of Louisiana Nelson v. Police Jury of the Parish of St. Martin

'In the above-entitled case, the law and evidence being in favor of plaintiff and against the defendant, it is ordered, adjudged, and decreed that said plaintiff, Thos. W. Nelson, have judgment against and recover from the defendant, parish of St. Martin, the sum of forty-five hundred dollars, with eight per cent. interest per annum, from October 5, 1868, and that the board of assessors or officers, whose duty it is to assess taxes, forthwith proceed to assess a parish tax, at a sufficient rate per cent. upon the assessment roll of the current year, to pay said judgment, and that the tax collector proceed forthwith to collect said tax in the same manner that parish taxes are now collected, and the amount collected to be a specific fund to pay said judgment.

'Done, read, and signed in open court, this twenty-ninth November, 1873.'

From the entry of this judgment and decree to the presentation of the application for a mandamus to be issued to the officers designated, the relator in vain endeavored to have the decree executed. He made repeated applications to them to assess and collect the tax ordered, but they refused to do so; and at the extra session of the legislature of 1877, by the act known as No. 56, passed on the tenth of April of that year, the provisions of law to which we have referred were repealed. Subsequently the officers, in excuse of their conduct, alleged a want of authority by reason of the repeal. He therefore applied to the court for a mandamus to compel them to proceed in such assessment and collection pursuant to the decree of the court, setting forth in his petition the judgment recovered, with the accompanying decree, the refusal of those officers to carry out the directions of the decree on account of the repealing act of 1877, and averring that that act, if constitutional, left him absolutely without any remedy, as the parish was without property liable to seizure in an amount sufficient to pay it; and that the act was null and void as to him, and his rights under the decree, because in conflict with the constitution of Louisiana and that of the United States prohibiting legislation impairing the obligation of contracts; and that unless aided by the writ of mandamus he would lose the rights established by his judgment. The writ was duly served, and, upon its return, the president of the police jury of the parish appeared, representing the assessing officers. The parish of St. Martin also appeared, and set up that the remedies invoked for the enforcement of the judgment were repealed; that the parish was largely involved in debt; that its tax was then 10 mills on the dollar; and that the levying of an additional tax to pay the judgment in one installment would not only exceed the rate of taxation fixed by article 209 of the new constitution of the state, but would absorb, or nearly so, its entire revenues. Upon these pleadings the district court ordered a peremptory mandamus directing the levy and collection of the tax. An appeal was then taken to the supreme court of the state, where the judgment was reversed, the court holding that the right to the mandate depended upon the question whether the judgment against the parish was founded upon a contract protected against impairment by state legislation under the federal constitution; observing that the repealing act of 1877 should be no bar to the exercise of the remedy accorded by law to the relator in force at the time that he obtained his judgment, which 'not only theoretically but practically formed part of that judgment, provided that judgment be founded on a contract;' and also that unless it was thus founded the court would be powerless to enforce its payment in the manner proposed, under the inhibition of the constitution of 1879 limiting taxation to 10 ills on the dollar of the valuation of property. As the judgment did not specify the cause of action upon which it was rendered, the court thought that it would be in furtherance of justice to give the relator an opportunity of establishing that it was upon a contract, if such were the case, and to allow the defendants to adduce such further evidence, and make such other defenses as the nature of the suit might require. 32 La. Ann. 884. The court subsequently stated that it was not its intention, by its decision, to open the judgment which had been rendered in 1873 in order that the issues involved and determined might be tried de novo, but only to allow proof of a material fact in support of the proceeding by mandamus, viz., a protected contract; that is, whether the judgment was upon a contract of that character, which was protected both by the state and federal constitutions. 33 La. Ann. 1124. When the case went back to the district court it was shown that the judgment was entered upon warrants drawn by the parish of St. Martin for the sum of $4,500 for the building of a bridge over Bayou Teche, within the corporation, such warrants being drawn in favor of the municipal authorities of the town of New Iberia, and payable to the extent of $1,000 by a special appropriation out of the tax of 1856, and to the extent of $3,500 out of any surplus funds in the hands of the treasurer, from the taxes of 1865, 1866, 1867, and 1868. The district court held the proof to be sufficient that the judgment was founded upon a contract, and again ordered a peremptorymandamus to be issued to levy and collect the tax. From this decree an appeal was also taken to the supreme court, where it was reversed on the ground that the warrants, upon which the judgment was rendered, were payable out of certain funds by specific appropriation, and on the further ground that the original judgment required an immediate assessment and collection of a tax in 1873 according to the assessment roll of that year, which could not be done in 1881. The court held that, as regards the levy of the tax, the judgment had ceased to be executory, and had passed out of existence. It therefore reversed the decree, and directed judgment rejecting the demand of the relator. The relator thereupon brought this writ of error.

''Gus. A. Breaux'', for plaintiff in error.

No appearance for defendant in error.

FIELD, J.