State ex rel. Samuel v. Jumel ( 1880 )

Marr, J.,

delivered the opinion on the motion to dismiss, refusing it, and on the merits affirming the judgment, of which latter a rehearing was granted. On rehearing, after reciting the facts and quoting the sections of the Act of the Legislature,

De Blanc, J.

The Act clearly violates the Constitutional amendment that commands the revenue of each year, derived from taxation, to be applied solely to the expenses of the year for which it has been raised. In the former suit between the same parties, 30 La. Ann. 339, we held that the warrants were to be paid out of funds appropriated for that object, and which appeared to be the revenue derived from taxation and raised during the years when those claims became due.

The relator contends that no application for a rehearing lies from a judgment on a writ of mandamus. This rule applies to those writs issued by superior courts to subordinate tribunals to set them in motion and compel them to act, to those which command the performance of a plain, incidental, and preliminary duty ; but it is evident that rule does not apply to a peremptory order addressed to a public officer commanding him to pay a public fund. In form and in substance, that order is>a decree by which the parties are to be concluded, and there is no reason why, in such a case, a rehearing should not be granted to either the State or the relator.

Former decree set aside and, judgment reversed.