State ex rel. Rills vs. Barrow.

We re-affirm the decision in Farrar v. Garrett, and hold that all parts of the act of 1868, as well as all sections of the revised statutes of 1870, which are in conflict with the act of 1874, are repealed. The respondent excuses his zeal, and justifies his onslaught on the Revisal of the Statutes, by the information that the act of 1874 was passed specially to effect his removal. If this be true, our regrets that the State loses so efficient an officer will be enhanced by the fact that our duty, as we interpret it, requires us to give effect to an enactment which terminates the respondent's tenure of office sooner than is desirable in the interests of the public.

Judgment affirmed.

DEBLANC, J. Plaintiff and defendant claim to be-the first, under a commission from the Governor-the other, under an appointment from the Police Jury, the district attorney pro tempore of the parish of Iberville.

The evidence shows that defendant was twice appointed to that office by the police jury—on the 11th of November 1872 and on the 29th of November 1876. On the 27th of said month, two days before defendant's last appointment, J. H. Rills had been-by the same body, appointed to the very same office. His appointment was rescinded forty eight hours after it was made and followed by that of his competitor.

The cancellation of Rills' appointment was unauthorized. If otherwise, the cause which induced the police jury to revoke it, is not disclosed in either the resolution by which it was attempted, the pleadings or the evidence; and-inasmuch as that body could not arbitrarily destroy the accomplished effect of their own action, we are compelled to presume that, on the 29th of November 1876, when defendant was appointed, there was no vacancy in the office. If Rills qualified under his appointment by the police jury, he was and has not ceased to be the incumbent, and this, for the reasons urged by defendant why we should-under a similar, but subsequent appointment, recognize his right to the disputed office. If, within the delay prescribed by law, Rills did not qualify as the appointee of the police jury, there certainly was a vacancy in the office, when-on the 10th of February 1877, he qualified under the Governor's commission of the 31st of January.

In his answer, defendant admits that the term of his office expired in November 1876, and his own evidence shows that the title he claims is based on a re-election which, necessarily, occurred during the acknowledged vacancy, and which might avail him, had it not been preceded by the relator's election.

State ex rel. Rills vs. Barrow.

This view renders useless the discussion of the other questions raised in the parties' arguments. The first and admitted vacancy, that which happened by the expiration of defendant's term, was filled by Rills' appointment, and if-by his failure to qualify-there happened a posterior, a second vacancy, it stands filled by the Governor's commis sion.

Rev. Statutes of 1870, Section 1577.

It is, therefore, ordered that our former decree remain undisturbed.

No. 7018.

H. R. WADE VS. R. J. LOUDON AND SHERIFF.

In the absence of evidence as to the amount in dispute in a suit on appeal before this court, it will not be inferred that a sufficient sum is involved to give this court jurisdiction merely from the fact that there were two judgments of the district court enjoined. This court will not assume jurisdiction on an inferené. The dissolution of an injunction issued to restrain an order of seizure and sale, (in a case where no allegation is made of defect or nullity in the judgment ordering the seizure and sale) leaves nothing more to be decided in the injune. tion suit, and hence, the court may properly order it to be stricken from the docket.

A

PPEAL from the Thirteenth Judicial District Court, parish of East
Carroll. Hough, J.

A. W. Roberts for plaintiff and appellant.

Montgomery & Deloney for defendants and appellees.

The opinion of the court was delivered by

MARR, J. In January, 1877, appellant obtained an injunction restraining Loudon and the sheriff from further proceeding in the execution of the judgments of the district court, numbers 6328, 6329, of the docket.

The injunction was granted upon the affidavit of one Hedrick, whe styled himself agent and attorney in fact for H. R. Wade, "that the allegations of the petition are true and correct to the best of his knowl edge and belief; and that the said Wade is in ill health and is physically unable to appear to take out these proceedings."

At the ensuing term of the court defendants moved to dissolve the injunction with damages, on the grounds:

1. That the plaintiff, Wade, at the time the affidavit was made by Hedrick, was present in the parish, and was residing within three miles of a justice of the peace, before whom he was amply able to appear and make affidavit.

5. That there has been no legal and solvent bond executed in this suit, and the same if given was not signed by any one authorized to do so.

Wade vs. Loudon and Sheriff.

According to the note of evidence there was no testimony offered on the trial of this motion, except that of a member of the bar, who stated merely that "fifty dollars is a moderate fee for dissolving the injunction in this suit."

The judgment dissolved the injunction with fifty dollars special damages, and ten per cent per annum interest on the amount of the judgments enjoined, for the reason, as stated in the judgment, "the law and evidence being in favor of defendant."

At the December term this injunction suit appeared on the docket; and counsel for defendant moved the court to strike it from the docket, as having been placed there in error, for the reason that the judgment dissolving the injunction disposed of the whole case.

The judgment as entered on this motion is, "that the matters in this suit were all tried and adjudicated upon on the trial of the motion to dissolve the injunction, and that this suit be now stricken from the docket."

The appeal is taken from this judgment; and we can not inquire into any other or former judgment.

Appellees have moved to dismiss on the ground that it does not appear that the amount or value in dispute exceeds $500; and it is admitted by counsel for appellant, as an examination of the transcript proves, that there is nothing to show this material fact. The counsel thinks we ought to infer sufficient value from the fact that there were two judgments of the district court enjoined. It is possible that each of these judgments may have been reduced by partial payments, so that the aggregate amount due on both would be less than $500. Or, the amount sued for, in each case, may have been reduced by compensation, or reconvention, so that the amount of both judgments as rendered may have been less than $500. Where the jurisdiction of a court is limited, as the jurisdiction of this court, the jurisdiction must appear of record: and we should not feel at liberty to assume jurisdiction by inferWhere the value does not appear otherwise, it may be shown by affidavit; but it must be made to appear, satisfactorily, in any case where the jurisdiction of this court depends upon the amount, that it exceeds the sum $500.

ence.

The injunction asked for in this case was not for any defect or cause of nullity of the judgments which the sheriff was about to execute; and the prayer of the petition was “that a writ of injunction issue, restraining said sale (the sale which the sheriff was about to make under execution); and that on trial the seizure be decreed illegal, and set aside and the injunction made perpetual." It is evident, therefore, that the dissolution of the injunction with damages left nothing more to be decided in the injunction suit. The order of the court striking it from

Wade vs. Loudon and Sheriff.

the docket caused no injury or prejudice whatsoever to appellant. If he has any cause of complaint, it is that his injunction was erroneously dissolved with damages; and he has not seen fit to appeal from that judgment.

The appeal is fatally defective on two grounds:

1. Because the amount or value in dispute is not made to appear in any manner:

2. Because the judgment appealed from, the order of the court striking the case from the docket, caused no injury or prejudice to appellant, since there remained nothing more to be tried, and nothing upon which judicial action, in that case, could have been taken.

It is not irreparable injury, nor is it any sort of injury, to either party for the judge to order a suit to be stricken from the docket six months after it has been finally disposed of by the judgment of the court. The appeal is therefore dismissed with costs.

No. 6732.

CHARLES A. HARRIS VS. ANTOINE DUBUCLET, STATE TREASURER

The Legislature is empowered to form a contract, to pay an annual rent for buildings necessary for the use of the State; and its power to buy a State-House is equally unquestionable, if the debt thereby created does not exceed the constitutional limitation.

A Legislative act, which, after appropriating a certain sum for a certain legal par pose, payable in annual installments, provides that "out of all State taxes collected, one half of one mill on every dollar shall be set apart of the general funds as a fund to meet" said sum, does not violate the third amendment of the State constitution, devoting the revenues of each year, (except surplus revenues to the expenses of that year. The effect of such an act is merely to diminish the general-fund tax by the amount it levies for the purpose contemplated in the statute.

PPEAL from the Sixth District Court, parish of Orleans. Rightor.

A

A. L. Tucker, Anatole A. Ker, Breaux, Fenner & Hall, and Thomas J. Semmes for plaintiff and appellee.

H. N. Ogden, Attorney General, for defendant and appellant. The opinion of the court on the original hearing was delivered by EGAN, J., and on the rehearing by MANNING, C. J.

EGAN, J. This is a mandamus suit, brought against the State Treas urer to compel him to pay out of the moneys in the State Treasury, to the credit of "State-House Fund," the nine certain warrants held by plaintiff, and filed with and made part of his petition, amounting to three thousand three hundred dollars, drawn by the Auditor of Public

Harris vs. Dubuclet.

Accounts on the State Treasurer, and payable out of the State-House fund, appropriated for the purchase of a State House by act number six of the Legislature in 1875, in favor of R. E. Rivers, Treasurer of the New Orleans National Building Association, and by him indorsed. These warrants cover a part of the purchase price of the St. Louis Hotel property. Sec. three of act number six of the General Assembly of 1875, providing for the purchase by the State of the St. Louis Hotel property for a State House, appropriates the sum of $250,000 for the payment of said property.

Section four of the same act provides," That out of all the State taxes collected one half of one mill on every dollar shall be set apart of the gen eral funds by the Auditor and Treasurer, as a fund to meet the purchase price of said property; and the said funds, or so much thereof as shall have been collected, shall be paid to the vendors, at the times to be designated in the act of sale; provided said payments shall be made at least twice in each year."

The answer of the Treasurer avers, "that the contract out of which relator's pretended action arises violates the third constitutional amendment proposed by the third Legislature in article number four of the second session of 1874, and adopted the same year," which reads as follows: "The revenue of each year, derived from taxation upon real, personal, and mixed property, or from licenses, shall be devoted solely to the expenses of said year, for which it shall be raised, excepting any surplus remain, which shall be directed to sinking the public debt. All appropriations and claims in excess of revenue shall be null and void, and the State shall in no manner provide for their payment." It would seem that this constitutional amendment fixes at once and beyond the reach of legislative will the destination of the entire revenue derived from all sources of taxation for each successive year, first, to the payment of the expenses of the year for which the revenue shall be raised, and, second, if there shall be a surplus, that it shall be devoted to the creation of a sinking fund to meet the public debt. This would seem to provide for the exhaustion for the purposes named of the entire revenue for each year, to the exclusion of all other uses and purposes. But the amendment, after thus fixing absolutely and beyond legislative control the destination of the entire revenue for each year, goes further and provides that, "all appropriations and claims in excess of revenue shall be null and void, and the State shall in no manner provide for their payment." Thus in one breath the entire revenue is exhausted for the uses and purposes named, and in the next it is provided that all appropriations and claims, in other words, all debts, contracts, or obligations, in excess of revenue shall be null and void, and the State is absolutely and positively prohibited from providing for their payment in any manner.