
    No. 8324.
    State ex rel. S. R. Stewart vs. Police Jury of the Parish of Jefferson, Left Bank, et al.
    Relator's right to a tax to satisfy liis j udgment against tlie Parish is to be determined by tbe law in foice at tbe date of bis contract.
    Tbe limit of taxation, fixed by law, at tbe date of bis contract, and the constitutional enlargement of tbe limit to ten mills, bad been exhausted by the parochial authorities at tbe date of the mandamus. A mandamus to compel tbe Police Jury to levy a tax to satisfy Relator’s judgment was therefore improperly granted.
    APPEAL from the Twenty-sixth Judicial District Court, Parish of Jefferson. Hahn, J.
    
      
      Chas. Louque, for Relator and' Appellee.
    
      W. Mithoff, Chas. F. Claiborne, for Defendants and Appellants.
   Tlie opinion of the Court was délivcred by

Levy, J.

Plaintiff, as transi'erree and owner of a judgment of §1,133, bearing five per cent, per annum from November 18th, 1876, against the Police Jury of the Parish of Jefferson, Left Rank, obtained a judgment in the District Court of said Parish, perpetuating a mandamus, ordering the said Police Jury to levy a tax of three mills on the dollar of all assessed property within the said Parish, Left Bank, to pay the judgment, interest and costs, and further ordering the sheriff and ex-officio tax collector, to collect said tax immediately, and to pay the proceeds to Relator, as soon as collected, in satisfaction, pro tanto, of the said judgment.

Prom the judgment in the mandamus suit, the defendants have taken this appeal.

In his petition, plaintiff alleged that said judgment was rendered to enforce contracts made in 1875 and 1876, when the rate of taxation was limited to 14J mills : that during said years the rate of taxation was, for Parish purposes, as follows: Por 1875, 10 mills, and for 1876, 141-mills, and that at the time when the contract, on which the judgment is based, was made, the law provided, that, in the judgment, the Judge should order the levy of a tax of sufficient amount to pay the' said judgments, and Relator has a vested right in the levy of said tax, which could not be divested by subsequent legislation j wherefore, he prayed for the mandamus. In the alternative, he prayed that the Police Jury be ordered to budget the amount of the judgment on their next-budget and proceed to levy a tax sufficient to pay the same, of three mills on the dollar, notwithstanding the constitutional limitation of taxation.

The record contains conclusive evidence that the original judgment, was based on a contract entered into between the plaintiff therein and the defendant Police Jury. The judgment was rendered contradictorily with the Police Jury, and is, therefore, by lapse of time, within which an appeal or action of nullity might be had, res adjudicata, and cannot be inquired into by us in this action. When the judgment was obtained, the Act of 186!), embodied in the Revised Statutes, was in force, which gave to the judgment debtor the right to have the assessment and collection of a special tax to pay the judgment, and as this Act was subsequently repealed, and prior to the institution of these mandamus proceedings, defendant contends that as the order for such assessment and collection of the special tax was not made prior to the repeal, the mandamus to enforce the same w-ill not lie, and that the silence of the judgment as to the order must be construed as a denial of the tax, and a bar to subsequent proceedings to claim one. On this point this Court held, in 32 A. 887:

“ We do not consider that the insertion in the judgment, that a tax shall be assessed and applied to the payment of this judgment, adds any force to the claim of the Relator for a mandamus. The law, in existence at the time it was rendered, directing such an insertion, forms as much part of the judgment, without being so embodied, as the formal incorporation of its provision does. The Relator has acquired no right by the insertion which he would not have had otherwise.”

It is then clear to our mind, that Relator has the right to enforce the payment of his judgment, by the levy and collection of a'tax in accordance with the law, and to the extent of the taxation in force at the time his contract was entered into, and which, as above stated, formed a part of the contract. This principle is so firmly established and so frequently decided, that it is now regarded as the fixed jurisprudence of the State as well as the Federal Courts, and needs no elaboration or citation of authorities, forming, as it does, an axiomatic, legal and constitutional truth.

The limit of taxation fixed by the law at the time the contract was entered into, is the measure of Relator’s remedy at this time. That limit has not been reached, nor will the tax herein directed to be levied be exceeded thereby, and we, therefore, cannot disturb the judgment of the lower court.

The judgment appealed from is, therefore, affirmed; defendants to pay the costs of both Courts.

Dissenting Opinion.

Bermudez, C. J.

The rate of Parish taxation for the years 1875 and 1876, and anterior to 1871, was ten or fourteen and a half mills, and the maximum of taxation powers had been reached by the parochial authorities during those years.

Under the laws in existence and under the authority in Lafitte vs. Morgans, 29 A. 1, and in Shannon vs. Lane, 33 A. 490, the rate of parish taxation in this State, from the years 1871 to 1876, was four mills.

During the years of Relator’s alleged contract, 1875 and 1876, there was actually levied a tax of ten and fourteen and a half mills, respectively, thus far exceeding the limit of taxation, as restricted by la w.

The Relator is not entitled to a tax in excess of that limited by the law, in existence at the time of his averred contract.

The mandamus should, therefore, be refused.

Poché, J.,

dissenting: I concur in the opinion of the Chief Justice.

On Application for Rehearing.

Fenner, J.

The contract, on which Relator’s judgment is founded, is dated December 11th, 1874.

His rights are regulated by the law in force at the date of his contract.

The question for solution is, what 'was the law in force on December 11th, J.874, as affecting tho power of parishes to levy taxes, and the rights of creditors to exact the levy thereof, for the purpose of paying their claims'?

The Act of 1869, authorizing the Judge, whenever he rendered a judgment against a parish, to order a levy of taxes sufficient for its payment, had not, it is true, been expressly repealed.

But in 1872, nearly three years prior to the date of Relator’s contract, tho legislature had enacted tlio following :

“ Nor shall the Police Jury of any parish levy a tax for any parish puiposes, except to pay indebtedness incurred prior to the passage of this Act, during any year, which shall exceed one hundred per centum of the State tax for that year, unless such excess shall be first sanctioned hy a vote of the majority of the voters, oto.” Acts of 1872, p. 56.

The exception sxiecifically stated, with reference to “ indebtedness incurred prior to the passage of this Act,” can leave no possible doubt of the legislative intention to apply the limitation, fixed therein, to all indebtedness, of whatever nature, incurred after the passago of the Act-, anil to restrict within the samé limit, tho operation of the Act of 1869. To hold otherwise would he to defeat, and to render of non-effect, the manifest purpose of the law.

In other words, the latter Act repealed hy implication the Act of 1869, in so far as it authorized Judges to require the levy of a tax exceeding the limit therein fixed, in satisfaction of judgments rendered for indebtedness incurred after its passage.

Tho next question is: What was the limit of taxation established hy the Act of 1872 9

This question was determined, by our predecessors, who hold that tho Act of 1872 limited tho power of parochial taxation to four mills on the dollar. Lafitte vs. Morgans, 29 A. 1.

We have already had occasion to express our approval of that decision. Shannon vs. Lane, 33 A. 490.

The limit of taxation thus fixed by law at the date of Relator’s contract, and the enlargement of that limit to ten mills, authorized by the Constitution of 1879, liad both been exhausted hy the parochial authorities at the date of the -mandamus herein applied for, and it is, therefore, impossible to grant the relief demanded hy Relator in the present case.

Tlie principles announced in the original opinion herein are correct, bnl the error consists in the assumption that the limit of taxation, at the date of Relator’s contract, was 14-J mills, instead of 4 mills.

It is, therefore, ordered, that our former decree herein ho annulled and set aside; and it is now ordered, adjudged and decreed, that the judgment appealed from he annulled, avoided and reversed, and that Relator’s demand he rejected, at his proper cost in both Courts.

The Chief Justice, and Roché, J., concur in this opinion and decree, without reference to principles embodied in the previous opinion of the Court-

Levy, J., absent.  