State ex rel. Nelson v. Police Jury , 33 La. Ann. 1122 ( 1881 )

The opinion of the Court was delivered by

Bermudez, C. J.

The relator applies for the levy by mandamus of a special tax, by the defendant, to pay a judgment in his favor for $4500, and interest, against the parish of St. Martin.

Several times has the relator already submitted his grievances to this Court. 28 An. 578; 30 An. 1103; 32 An. 884.

The case was before us at last term. We found the relator in presence of the defense, that the law under which he sought relief had been repealed, and that the proceeding was unwarranted. To this attack he replied that the repeal was inoperative, as his judgment rested on a contract, shielded by the Constitution of the United States, which protects the obligations thereof from all impairment.

There was no allegation of a contract in the petition. Still, with a view to afford the relator an occasion to amend, we thought it our duty < «in furtherance of the ends of justice, to remand the case, in order that the relator may have an opportunity of establishing that his judgment is founded on a contract, if such be the case, and that the defenda nt may adduce such further evidence and make such other defenses as the nature of the suit may require,”. 32 An. 888.

We did not mean or say, that the case in which the judgment relied upon was rendered, should be reopened, and that the issues involved and determined should be tried de novo. We would have been powerless to do so. We merely intended to permit the relator to allege and prove a material fact, in support of the present proceeding, viz: a protected contract. ‘

On the trial, on the remandment, he, however, assumed to prove, in the absence of averment, the existence of the contract invoked, not only by the record in which the judgment was obtained, but also by supplementary evidence, to the introduction of which objection was made, the propriety of which we deem it unnecessary to pass upon.

Conceding arguendo, that the relator has averred that his judgment is predicated on a contract; that the record in the case mentioned and the additional proof establish a contract (questions upon which we express no opinion), we are irresistibly driven to the inquiry, whether the relator, under his judgment and under the contract, is entitled to the special tax which he demands, over and above the constitutional limit, if a transgression be necessary.

The judgment rendered has become definitive. It constitutes res judicata, and can no longer be impugned, as to issues involved and determined. Whatever issues it settles, are irrevocably conclusive upon the parties to it; but what is it, that was at issue; what is it that it adjudicates; what is it that it is based upon ?

The question presented for solution was: shall the plaintiff recover judgment for the amount claimed, and shall a tax be levied to pay such judgment ? The issue was not, whether the claim was based on a contract or not; there was no contention on the subject; and the judgment does not pass upon any such question. It is true that the defendant might, if a contract existed, have resisted the prayer for the levy of a special tax, and thus raised an issue as to the existence and validity of such contract. The defendant did not do so, and no issue was formed and determined on that subject. The plaintiff and the court which rendered the judgment, acted, no doubt, under the impression -that the law then in existence required that a provision should be made at the time plaintiff’s claim was liquidated, — for its payment by the levy of a tax. R. S. Secs. 26, 28, 29, 30, 47, 48 and 49.

The judgment, therefore, was simply for a sum of money and for a tax to pay it. ■ It would have necessarily been the same, had the suit been one for damages, founded on no real contract at all.

We, therefore, remanded the case for information as to the consideration of the judgment, in order to enable us to determine the question of impairment of the obligation of a contract, raised by the relator.

But, were it not so, the right of the relator to a tax has been by himself submitted, as res nova, for determination.

By the judgment rendered in 1873, liquidating his demand, a tax was ordered to be levied to pay it, at a sufficient rate per cent, upon the assessment of the current year.

It is manifest that this judgment has not been satisfied by payment or executed by the levy of the tax directed, otherwise why the present proceeding ?

By the lapse of time and the force of circumstances, it is clear that this judgment, as regards the levy of the tax, has ceased to be executory, and has passed out of existence, inasmuch as the defendant cannot, under its terms, be required to do nunc, in 1881, what it directed to be done tunc, in 1873.

By the present proceeding and by his course in the lower court, in adducing evidence other than the record in the case in which the judgment was rendered, the r.elator has admitted his legal inability to have that portion of the judgment for the tax, vi terminis, executed, and its consequent caducity. He has abandoned all pretensions to its enforcement, and seeks now at the hands of the Court another and different judgment, allowing him a tax of -- per cent, on the property of the parish, according to the assessment rolls thereof for the current year, to pay his judgment of 1873. He has thereby reopened the question of his right to such a tax, and of the existence, validity and extent of his claim under the contract.

The judgment of 1873 fixed no percentage rate of assessment, and so was not executory, as it left the quantum of the rate within discretion. The judgment appealed from is definite, and directs a levy of ten mills, if necessary, over and above the quantum of taxation, limited by article 209 of the Constitution.

As the relator has undertaken, not only to show a specific contract, but also the nature and extent of that contract, he has opened the door to the defendant, to establish that, under the terms of such contract, he is not entitled to the remedy sought by him.

What is the evidence now before us on the subject?

We gather from the record, as it is now presented, that the judgment was obtained on two notes or bonds or obligations signed by the president of the police jury of the parish of St. Martin, on the 5th of October, 1868, purporting on their face to have been issued in pursuance of authority delegated by a resolution of that body, adopted on the 16th of July previous, and identified with a notarial act of even date with them.

The resolutions authorized the president of the police jury to draw on the parish treasurer warrants in favor of the municipal authorities of the town of New Iberia, for $4500, for the building of a bridge over Bayou Teche, within the limits of the corporation, payable, to the extent of $1000, out of a special appropriation on the tax of 1866, and for $3500, out of any surplus funds in the hands of the treasurer, the proceeds of the taxes of 1865, 1866,1867 and 1868.

It was not until the 5th of October following, that an act was passed between the president of the Police Jury and the town authorities of New Iberia on the subject, and that the warrants, under the form of promises to pay, were drawn. By Act 208, approved. October 30th, 1868, the town of New Iberia was detached from the parish of St. Martin, to form part of another parish known as the parish of Iberia. The act is silent as to the mode of payment of the indebtedness incurred and to be satisfied by the parish of St. Martin, enuring to the benefit of the detached territory. To all appearances, it was only after the dismemberment had been effected, that the bridge was contracted for and constructed. There is nothing to show that the work was done, but the inference is unavoidable, from the fact that the obligations were uttered by the municipal authorities of New Iberia and are now held by the relator, who has alleged and established title to them, contradictorily with the police jury of St, Martin parish, in the shape of the judgment declared upon and made the foundation of the present proceeding. Those obligations were the inducements offered and accepted for the construction of the work of public improvements.

If it be legal under the peculiar and unfortunate circumstances of this case to fasten the responsibilty for the payment of those obligations on the parish of St. Martin, it is likewise lawful and just besides, to hold their owner to a strict observance of the terms and conditions under which they were issued, which he accepted, and which have not been, in any manner, subsequently modified by the parish of St. Martin. While the relator is entitled to all the rights which the “ promises to pay,” under the resolution, the act and the judgment, confer, — he cannot escape the obligations which they impose or the limitations with which they have been surrounded.

The resolution of the 16th of July, 1868, being expressly referred to in the body of the obligations owned by the relator, forms part of them, the more so as it is also mentioned and reiterated in the notarial act with which they are identified.

If there exist a contract, it is that evidenced by the resolution, the act executed in furtherance of it, and the obligations uttered in conformity with it, and which were recognized as binding on the parish of St. Martin. To that contract the relator points as the foundation of the present proceeding, — of that contract only, can he seek a specific performance. Under that contract he is entitled to be paid in a particular manner exclusive of all others, by specific appropriation and covenant.

The resolution to which the obligations refer declare that these shall be paid to the extent of $1000 out of taxes of 1866, and to the extent of $3500 out' of any surplus funds in the hands of the parish treasurer as the proceeds of taxes of 1865,1866,1867 and 1868.

The relator seeks in this action the immediate levy of a tax on the taxable property of the parish according to the assessment roll of the current year, sufficient to realize the amount needed to pay the judgment in his favor for $1500, with interest and costs.

He is clearly not entitled to that relief.

In ruling as we do, we leave out of view not only article 209 of the Constitution in force, but also Act 56 of 1877, charged as impairing the obligation of the alleged contract, and which were both intended for public relief. We are thereby dispensed from the necessity of determining the question of impairment of such contract. We decide that, under the Constitution and laws of the State, and under the evidence, we are justified in restricting relator to the terms of the contract which he invokes, and which provides for payment of his claim, in a manner different from that which he demands. We hold the parties to their engagements and render them the justice to which they are entitled, under the exceptionally complicated circumstances of the case submitted for determination.

We think the judge a quo erred in his conclusions.

It is, therefore, ordered and decreed that the judgment appealed from be reversed; and proceeding to render such judgment as should have been rendered, it is ordered, adjudged and decreed that there be judgment for the defendant, rejecting the demand of relator, with costs in both courts.

Messrs. Justices Levy and Fenner recuse themselves: the former having been of counsel in the ease, the latter having been oonsulted as counsel in a similar case, and being individually interested in an analogous suit, to be determined in the same manner as the present one. The remaining three members of the Court being unable to concur, their Honors G. W. Hudspeth, District Judge of the District Court for the Thirteenth Judicial District, and John Clegg, Judge of the District Court for the Twenty-fifth Judicial District, were called upon, under the provisions of article 85 of the Constitution, to sit in the place of the Justices recused, and have done so. Mr. Justice Tood dissents from the opinion and decree of the Court, thus composed of their Honors E. Bermudez, Chief Justice; F. P. Poché, Associate Justice; and G. W. Hudspeth and John Clegg, District Judges.