State ex rel. Byerly v. Walton , 24 La. Ann. 115 ( 1872 )

Wyly, J.

The relator alleges that he is the clerk of the Third District Court; that said court is tho only court of competent jurisdiction to entertain suits for the recovery of taxes duo the city of New Orleans, where the amount is one hundred dollars or less; that in such cases none of the other district courts of the parish of Orleans have jurisdiction; that John S. Walton, the Administrator of Finance, has declared his intention to publish, and lias published in the official journal, the list of taxpayers who have failed to pay the taxes for the year 1871, exigible on tho thirty-first July, 1871, and that it is his intention to filo all tax hills or claims for taxes of that year in the Fourth and Eighth District Courts, whether the same exceeds or is less than one hundred dollars in amount, claiming the right to do so under the provision of the ninth section of tho act approved thirteenth March, 1871.

The relator farther avers that said section gives no such right to tho administrator, and was not intended to give him authority to select courts for the filing of tax bills or claims in any court but the court having jurisdiction to try the same; that the relator has called on the Administrator of Finance and demanded that all suits for the collection of taxes, where the amount claimed is one hundred dollars and under, shall be filed in tho Third District Court, parish of Orleans, which demand has positively been refused; that the amount allowed by law for such suits greatly exceeds ñve hundred dollars, and that the relator is injured at least one thousand dollars by the refusal of the Administrator of Finance as aforesaid.

The prayer of the petition is that the writ of mandamus issue, commanding the said Administrator of Finance to publish the list of tax bills or claims in the official journal, and if said tax bills or claims are not paid within tho legal delay, after said.publication, to file suit on the same in tho Third District Court, where the claims amount severally to one hundred dollars or less.

The clerks of the Fourth and Eighth District Courts intervened on the grounds stated in their petition. The answer of tho Administrator of Finance discloses several grounds of defense. The most important is that the relator has no interest to appear, and seek to regulate the jurisdiction of the several courts; the only interest which he avers being that of prospective fees, which is not such as is deemed in law an interest, authorizing him to appear in the capacity of relator herein; that if it be true that the respondent can be made to institute suits in disregard to the statute cited and relied on by him, and contrary to the direction of the City Council, the writ of mandamus would not lie to compel him to institute tax suits of the amount of one hundred dollars or less in the Third District Court, because the justices of the peace have concurrent jurisdiction, and the respondent would have discretion in the selection. The court dismissed the intervention and rendered the mandamus peremptory as prayed for by the relator. From this judgment the Administrator of Finance and the city of New Orleans have appealed.

We think the judgment of the court below is erroneous. The relator discloses no interest to justify this litigation. Until he earns fees the city of New Orleans owes Mm nothing. Where does he got the right, either as clerk or as a citizen, to exercise supervisory control over the city of Now Orleans or its Administrators? We do not see what right he has to demand of the Administrator of Finance that he shall publish the list of delinquent tax payers in the official journal; and also demand of him that certain suits shall be instituted by the city in the Third District Court, of which he happens to be clerk. To make such demands is certainly not one of the prerogatives of his office. If the city should sue one of its delinquent tax payers in the wrong court, it might be the interest of the latter to complain; or if ho chose to make no objection the judgment would be without effect, because the decree of a court without jurisdiction ratione material is an absolute nullity. But, say the counsel, suits of this kind will involve the city in debt, such cost bills being an unnecessary and idle expenditure of money; and as tax payer the relator has an interest in suing to prevent tlio ovil. It will be time enough for the relator to complain, as a tax payer, when he is called upon to pajr an illegal or improper tax.

The city government can not bo administered if its operations are to be embarrassed with the supervision of every tax payer, or if each tax payer has the right, by suit, to prevent it from incurring such debts as he may fancy to bo illegal, improper or unwise.

We entirely agree with the respondent, that the clerk of the Third District Court has no interest to apply for the remedy of mandamus, in order to regulate the jurisdiction of the several courts of the parish of Orleans. As to him, we think, this is purely a speculative question, which this court will not undertake to solve, because he has no interest, as far as the record shows, to demand the solution thereof.

Let the judgment appealed from bo annulled, let the mandamus he disallowed and the petition he dismissed at the costs of the relator.

Rehearing roinsed.