
    
      MAYOR & AL. vs. MORGAN.
    
    Appeal from the court of the parish and oity of New -Orleans. ,
    counJ,ie ¾⅞⅞⅛⅛ tion of their
    compel them to admi¿ a member whom they not dulJ'
    
      oflTdUringat, such is a tr«gpa«4
   Martin, J.

delivered the opinion of the *ourt. Obedience having been refused by the City Council to the peremptory mandamus, J r r j issued by the court of the first district, inanding them to admit to a seat a person Whom they had refused to receive, a writ distringas was placed in the hands of the fendant, sheriff of the parish, who seized the Revenues of the city. Wliueupon the present action was commenced for an alleged tresnas» ' He justified under the authority of the writ pjajntiffs vvere nonsuited, and appealed,

Their counsel has assigned as errors in the judgment of the parish court:

1. That the appellee is liable in damages, because he was not bound to execute the writ, and could dispute the authority of the district court,

2. That the parish court had jurisdiction to enquire into it

There is not any doubt with us that a she* riff is bound to enquire into the authority of a Court whose writ is put into his hands for execution, and that he is liable in damages for any injury'resulting from his executing a writ issued by a court who has no jurisdiction of the case in which it issued.

Hence it.follows that the court before whom a remedy is sought for such an injury, must necessarily enquire into the jurisdiction of the court from which the writ issued.

The success of the appellants before us, depends on their ability to shew that the district court was without jurisdiction.

Their counsel has referred us to the constitution, which provides that the citizens *f the town of New-Orleans have the right of ap- ° pointing the several public officers necessary for the administration an;l police of the said city, pursuant to the mode of election which shall be prescribed by the legislature. Art. 6, §¾

To the sixth section of the thirty-fourth chapter of the acts of 1816, 1 Martin’s digest, 331, n 38, which declares that the city council shall be judge of the elections of the mayor and recorder, and of its members.

And to the 873d article of the Code ol Practice, by which it is enacted that when the legislature has granted to a corporation the right to determine the validity of the elections of its members or officers, courts of justice shall not issue mandates to inquire into that feet.

So the district court was ousted of all jurisdiction, if the legislature had the constitutional power of rendering the city-council judge of the elections of its members—and the only question for our solution is, whether the sixth section of the act of 1816, be contrary to the constitution. If it be, it is void.

We are ready to admit that we have found this case one of considerable difficulty; and we at first concluded that the law was uncon* stitutional; because to enquire into, and final- ^ ’ ty determine on the rights of a party claiming a seat in the council, is the exercise of judicial power. To judge, is to determine the rights of parties, and nothing else.

We thought that the right, created by law, €o take a seat in the body of which the applicant for a mandamus asserted he was a member, could not be distinguished from any other right created by law—as the right of a child to • parent’s succession, or any other which positive legislative confers. And we concluded that as the constitution has declared the judicial power shall be vested in a supreme and inferior courts, the judges of which must hold their offices during good behaviour, and be appointed by the governor, with the advice and consent of the senate, the city-council, being composed of members appointed or a term of years, and elected by the peo. pie of their respective wards, is not a body in whom judicial power could be constitutionally vested.

But this reasoning presupposed that the legislative, executive, and judicial powers, of which the constitution speaks, are not mere^p the legislative, executive, and judicial powers of the state, exercised over every part of it, anil over every individual, dwelling, sojourning, or accidentally being within its geographical limits, but included those which may be exercised by corporations, within certain divisions of the state, and over their respective members.

If it were true, that judicial power cannot be vested in the city-council, because, according to the constitution, judicial power must bo vested in a supreme or inferior court, it would follow that the council could not exercise le* g-slative powers, and pass ordinances, because the constitution has declared that the legisla: live power is vested in a senate, house of re-' presentatives, and governor.

We think the constitution speaks of the powers of the state government only; that the legislature, in establishing corporations, may enable them to exercise subordinate legislation, within a particular district, over their members, and in regard to their rights and duties as corporators—that the exercise of this legislative power in the city-council is nol inconsistent with the exercise ofjudieial power under the authority of the state—that the legislature had constitutional power to enable. the council to legislate on matters within the scope of the charter, notwithstanding the con- - . s^tuS'*on has declared the legislative power shall be vested in a senate, house of representatives, and goveraor.j

Likewise, as the council could not well proceed to business without ascertaining the rights of its members to their seats, the legislature had power to render it judge of the validity of their elections, and prohibit courts of justice from interfering wish its decisions. There is not greater incongruity in the council exercising in this respect, within the city of New* Orleans, a kind of judicial power, than in ex* ©rcising legislative powers, which it is univer* Bally admitted they may exercise, in mattery which are the object of the charter of the city.

The constitution itself contains a clause that supports the position, that the powers it speaks ©frare state powers only. It disqualifies the mayor of New-Orleans from sitting in the state legislature.

Now, in construing an instrument, it is a food rule to give effect to every clause, nay ©very word of it.

If the executive powers, of which the constitution speaks, be not state powers only, the ijaayor, who exercises executive power in the citv, was excluded by (he clause which forbids •* . J any person from exercising both" legislative and executive powers, and the clause which excludes him from the state legislature, was absolutely useless. Its insertion favours the idea that the convention contemplated merely state powers.

This reasoning has satisfied our minds. If it were not absolutely conclusive, it would create such a doubt as would forbid us to de* Glare an act ot the legislature unconstitutional

This court, and every court in this state, not only possesses the right, but is in duty bound, fo declare void every act of the legislature which is contrary to the constitution. The due exercise of this power is of the utmost import fence to the people, and if it did not exist theif rights would be shadows, their laws delusions, and their liberty a dream; but it should be exerted with the utmost caution, and whcQ, great and serious doubts exist, this tribunal ' ahould give to the people the example of obe.» dience to the will of the legislator.

It is desirable that, for every wrong, there should be a legal remedy in a court of justice,. Butin Louisiana, die constitution has left every judicial power in abeyance with the except ' . tion of that vested in this court, hable to b© called into action, suspended or recalled at the 4 discretion of the legislature, The supreme court, with one single exception, has no origi* nal jurisdiction, and the other courts have on* ly that which the legislature has given them.

We can justly boast of the goodness of ouf institutions, but they are human, and consequently imperfect In the present case, the error of the city council, if it be one, in rejecting the claim of the applicant, cannot be corrected in a court of justice. This is unfortunate, but the legislature has willed it, and it is not perhaps the only case in which a citizen seeking relief in the temple of the justice of his country, may find the divinity turning a deaf ear to his complaints, and her ministers powerless.

We conclude that the act of the legislature of 1816 did not violate the constitution: that, the court of the first district was consequently without jurisdiction, that its proceedings were coramnonjudice: that the appellee derived no authority from the writ of distringas, and was guilty of a trespass in seizing the revenues of the appellants.

Moreau for the plaintiffs—Livermore fop the defendants.

It is therefore ordered, ad judged, and de-J te ereed, that the judgment of the parish courtbé annulled, avoided, and reversed. That there be judgment for the plaintiffs; and that the case be remanded, with directions to the judge to ascertain the damages sustained by them in the premises, and that the appellee pay costs in this court.  