State ex rel. Boutroue v. Judge of the Third District Court of Orleans , 30 La. Ann. 415 ( 1878 )

The opinion-of the court on the original hearing was delivered hy Spencer, J., and on the rehearing by DeBlanc, J.

Spencer, J.

Relator instituted suit before the Seventh Justice of the Peace for the parish of Orleans against the city of New Orleans to recover the sum of thirty dollars which he alleged the city had exacted of him, under a certain ordinance which he alleged to be unconstitional and void. The city answered denying the unconstitutionality of said ordinance, and denying' that plaintiff had ever paid the license in question. On these issues the case was tried, and there was judgment in favor of plaintiff for the amount claimed. The city thereupon took a suspensive appeal to the Third District Court. Relator appeared in the Third District Court, and moved to dismiss the appeal on the ground that the appeal from said judgment-must be taken to the Supreme Court direct from the magistrate’s court, since the question involved the legality and constitutionality of a license tax levied by said city. The judge of the Third District Court overruled the motion to dismiss, and the j ustice of the peace refuses to issue execution, or rather to afford the necessary remedy to enable plaintiff to register and budget his judgment against the city.

Relator claims that the justice of the peace is guilty of a denial of justice, and that the Third District Court has usurped a jurisdiction belonging to this court. He therefore prays for a mandamus to the former, and a prohibition to the latter. The justice of the peace makes no answer. The judge of the Third District Court shows as causo why the-writ prayed for against him should not issue, as follows:

That the plaintiff in said suit demanded the repayment of thirty dollars from the city, because, as alleged, the ordinance levying it was unconstitutional. That the city for answer, while denying the unconstitutionality of the ordinance, also denied that plaintiff ever paid the thirty dollars as alleged. That the question of payment vel non, as well as that of the constitutionality of the ordinance ■was involved, and that defendant has a right to have an appeal as to both questions. That by article eighty-two of the constitution, and laws passed thereunder, all appeals in the parish of Orleans from justices of the peace are returnable to the Third District Court, when the amount in dispute exceeds ten dollars except in cases provided by article seventy-four of the constitution. That article'seventy-four confers appellate jurisdiction on the Supreme Court when the constitutionality of any tax is in question, regardless of amount, with a view to the proper determination of questions of constitutional law, and not with a view to the revision of judgments upon mere questions of fact in cases involving less than §500.

That the defendant may waive the question of constitutional law, and appeal only for a revision of the judgment upon questions of fact. That the proceedings before justices of the peace being verbal, there was no evidence in the record in question enabling the Supreme Court to pass upon the facts, and that in effect, by appealing to the Third District Court, the defendant had waived the question of constitutionality of the ordinance, and limited itself to that of fact; to wit: paijment vel non, a question of which the judge thinks this court has no cognizancet These reasons of the judge a quo are certainly plausible, but are not, we think, maintainable under the language of article seventy-four. That article declares that the appellate jurisdiction of this court extends “to all cases in which the constitutionality or legality of any tax * * is in question, whatever be the amount thereof; and in such cases the appeal shall be direct from the court in which the case originated to the Supreme Court; and in criminal matters, on questions of law only, whenever,” etc. It is manifest that it is in criminal cases only that our jurisdiction is confined to questions of layo. In all other eases it extends to the laxo and the facts. And if this court is vested with appellate jurisdiction of the law ancl facts, in “ all cases in which the constitutionality and legality” of a tax is drawn into question, that jurisdiction is necessarily exclusive, and we think the constitution so declares it, when it provides that “the appeal shall be direct ” to this court. It is admitted that the suit in the Seventh justice’s Court did involve the constitutionality and legality of the city ordinance imposing the tax- in question.' That being the fact, there was no appeal except to this court, which alone has jurisdiction of the law and the facts.

It is therefore ordered and decreed that the preliminary writ of mandamus directed to the Seventh Justice of the Peace of the parish of Orleans, and of prohibition directed to the judge of the Third District Court of said parish, be made peremptory, and that respondents pay costs.