State ex rel. Roudanez v. Lynch , 28 La. Ann. 517 ( 1876 )

Wyly, J.

The relators enjoined the mayor and administrators of New Orleans from executing act twenty of the acts of 1876, which authorizes the levy of a tax of one half per cent annually in aid of the ■New Orleans Pacific Railroad Company to be collected on condition it is sanctioned by a majority of the registered voters, on the ground that said statute is unconstitutional. The railroad company intervened and moved to dissolve the injunction, which was done. Relators then applied for a suspensive appeal, which was denied.

Thereupon they applied to this court for a mandamus, which was granted and rendered peremptory on fifteenth of May. On the sixteenth, when the relators presented to the judge of the Superior District Court this decree, he granted a suspensive appeal, but declined to fix a return day and the amount of the bond. Relators then tendered a bond in the sum of one thousand dollars in favor of the clerk and conditioned according to law.

The judge, however, rendered the following order:

“ In granting a suspensive appeal in this case, in compliance with a peremptory mandamus issued by the Honorable Supreme Court, 1 deem dt my duty under the doctrine and action of that court in the case of the State vs. the. Judge off the -Fifth District Court, 19 .La. 167, and also in the recent case of Temple S. Coons vs. the Judge of the Superior District Court, to require the appellants to file.with the clerk of this court their additional bond in favor of the intervenor with good and sufficient security in solido, conditioned that said appellants shall pay such damages as the intervenor, the said New Orleans Pacific Railroad Company, may sustain in case it should be decided that the injunction heretofore obtained has been wrongfully sued out and illegally and unlawfully kept in force. It is therefore ordered that the said intervenor, the New Orleans Pacific Railroad Company, appear before this court on Saturday, the twenty-seventh instant, at 11 a. m. and present their proof as to the probable injury the said company may sustain by the issuance of said injunction -and its being kept in force by virtue of said suspensive appeal. It is further ordered that plaintiffs and appellants be notified to be present at the taking of said testimony and to present to the court such evidence as they may have to offer in the premises.”

It was the duty of the judge to grant a suspensive appeal fixing a return- day and the amount of the bond in pursuance of the peremptory ■order of this court.' There is ho law Requiring an additional bond in favor of the intervenor to secure him from damages resulting from the .granting of the-injunction. When the judge granted the injunction he fixed the bond to cover damages resulting therefrom. The judge had no authority to fix other conditions than- those prescribed by law in Order that the relators might have the constitutional right oí appeal. The cases cited by the judge are not like the one now before the court. Relators have not enjoined the execution of a mortgage nor have they restrained the disposition of property. They have simply enjoined the execution of a statute looking to the enforcement of a tax, on the ground that it is unconstitutional. The collection of the tax is suspended merely by operation of the injunction. No property rights can be destroyed, and we see no reason for a bond for damages other than the one that was given when the injunction issued.

We can not say in advance of a hearing of the cause that the judge erred in issuing the injunction, or that the bond he exacted in this case is not sufficient to cover damages resulting from the injunction. We think the bond of one thousand dollars tendered by relators was suffi■cient and a suspensive appeal should have been granted in a bond for ■that sum with good and solvent securities.

It is therefore ordered that the mandamus and prohibition herein bo made peremptory and perpetual, and that the judge grant relators a -suspensive appeal on giving bond in the sum of one thousand dollars with good and sufficient security, and that he fix a return day as re•quired by law. See 20 An. 108, 529.