
    Heirs of Duverge v. Salter and Marcy.
    The acfc approved the 16fch of March, 1848, entitled “An aetto give jurisdiction to the District Courts of New Orleans over causes arising under the act of 3d of March, 1819 respecting landlords and tenants,” is unconstitutional; the title not being in conformity with the Articles 118, 119, of the State constitution.
    APPEAL by defendants from the Fourth District Court of New Orleans, Strawbridge, J.
    
      Benjamin and Micou, for appellees.
    
      Grymes and G. Schmidt, for appellants.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiffs, who are the owners of a lot of land on the opposite side of the river situate between the public road and the river, leased the same to the defendants. The object of the present suit is to obtain possession of said lot and certain adjoining premises of the plaintiffs, upon which the defendants are alleged to have intruded, having been sub-tenants of their (the plaintiffs’) lessee. The plaintiffs in their petition expressly confine their action to the remedy granted by law in favor of lessors to enable them to recover possession of leased premises at the expiration of the term for which they have been leased. They pray that in compliance with the acts of the 3d of March, 1819, and of the 16th March, 1848, the defendants be cited and ordered to answer their petition within three days ; and that after summary proceedings had they may have judgment decreeing to them the immediate delivery of the property leased by them to the defendants, and of that occupied by the latter as the-sub-tenants of the plaintiffs’ lessee. The petition concludes with a prayer for' general relief.

The petition was filed on the 17th of May, 1849, and was served on the 21st following.

On the 24th May the defendants filed an answer, premised by a peremptory exception to the plaintiffs’ action, that the court could not take and maintain cognizance of the same; and that the plaintiffs were not authorized to proceed under the act of the 16th March, 1848, entitled “ An act to give jurisdiction to the District Courts of New Orleans over causes arising under the act of March 3d, 183 9, respecting landlords and tenants,” by virtue of which the plaintiffs are proceeding in the present suit, because they the said defendants aver that said act is null, void and of no effect, being contrary to the provisions of the 118th article of the Constitution of the State.

Special matters of defence are also set up in the answer.

The cause was fixed for trial on the 28 th of May for the 4th of June ensuing. It was tried on that day and the 6th, and was determined on the 7th June.

The district judge decided this exception against the defendants and gave the-plaintiffs judgment on the merits. From this judgment the defendants have appealed. The constitutionality of the act, under which the summary proceedings have been conducted, has been argued fully at bar. It is in these words:

“An act to give jurisdiction to the District Courts of New Orleans over' causes arising under the act of 3d March, 1819, respecting landlords and tenants. Section 1. Be it enacted by the Senate and House of Representatives of the State of Louisiana, in genei'al assembly convened, that the 4th and 5th sections of the act entitled ‘ An act to amend the several acts heretofore passed to organize and regulate the practice of the city court of New Orleans, and for other purposes,’ approved March 10th, 1838, be and the same hereby are repealed.”
“Section 2. And be it further enacted, &c.: That whenever the monthly rent paid by a tenant, or the lease which he shall allege to hold, shall be found to exceed one hundred dollar's, then the said tenant, if sued under the act of 3d March, 1819, shall be cited before any of the district courts of New-Orleans ; provided that the defendant shall be summoned, in the manner provided for by said act, to answer within three days.”
“Section 3. That no recess or adjournment of the district courts shall affect the cases arising under said act of 3d March, 1819, that the said cases shall be tried summarily and by preference, at all times, after three days’ notice, given by either party or to his attorney on record; and that no appeal shall suspend-execution unless the defendant has filed a special defence, supported by his oath that all the facts contained in his answer are true- and correct, and entitle him to retain possession of the premises.”

The first section purports to repeal the 4th and 5th sections of an act of 1838 recited therein.

The fourth section of that act gave the presiding judge of the late City Court of New Orleans, exclusively of the justices of the peace and associate justices of said court, jurisdiction over suits of landlords for the possession of leased property, when the matter in dispute exceeded the sum of three hundred dollars',■ and' authorized- an- appeal to the Supreme Court in such cases.

The fifth section provides that no appeal should stay execution unless bond should be given to secure damages, &c. There are some other provisions which it is- not material to consider.

Both of these sections were virtually repealed by the abolition of the city-court under the judicial system of the present Constitution. That instrument vested the judicial power of the State in a Supreme Court, the District Courts and in- Justices of the Peace. It gave the district courts original jurisdiction in all civil cases when the amount in dispute exceeds fifty dollars. In criminal cases and- matters connected with successions their jurisdiction is unlimited. So that, without the act under consideration, it would seem the district courts of New Orleans would have jurisdiction over cases between landlord and tenant, as virtually as with it.

The title to the act giving jurisdiction, &e., merely recites the effect of the Constitution itself and so far as the statute carried out this effect it must be considered as expressing its object. But under our view of this statute the material parts of it are not matters of jurisdiction in any sense ; they are matters of procedure, deeply affecting the privileges of litigants. The exclusion of this class of cases arising between landlord and tenant from the ordinary rules which regulate' judicial proceedings, and subjecting them to the stringent and summary action prescribed by the act, may be necessary and politic, and we are far from drawing in question the wisdom or policy of the enactment. But we think it aught not to be left under a title which gives no direction or clue to its existence.

To give jurisdiction to a court is to confer the power of applying the laws judicially. By this act new provisions of law are enacted, the former laws are changed and'the rights of parties, standing towards each other in a particular relation, are materially affected, and those of one party are materially abridged.

On the authority of the cases of Walker v. Caldwell, et al., 4th Ann. 297, and of the State v. Hackett, just decided, in which the'views of this court on the articles IT8 and 1'1'9 of the Constitution are freely given, we are unable to maintain the' constitutionality of the act under consideration.

The article 118 provides that every law enacted by the Legislature shall embrace but one object and that shall be expressed in its tide. The object of the act in question was. to subject tenants to stringent, summary and unusual proceedings, and that object is not expressed in the title; nor is there any thing in the title which gires an intimation of the contents of the act. If the'validity of this act be maintained, the provisions of the Constitution which guarantee the forms' of our future legislation are to all intent's and purposes without force or effect'.

The judgment of the'district court is therefore reversed, and the plaintiffs’' petition dismissed, with cost in both courts.

Slidell, J.,

dissenting. In the consideration of the constitutional question-presented in this cause, two propositions may, I think, be safely assumed, namely: that no legislative act of a State' should be pronounced unconstitutional, unless that unconstitutionality be clear and' beyond all reasonable doubt; and' that where portions of a law conflict with the' constitution', but a part is valid, the latter will be sustained if it can be separated from that which is unconstitutional.

I may concede, therefore, for the purpose of the present enquiiy, that the first section of the act in question (or a portion of it) is- unconstitutional, because its provisions are not comprehended by any reasonable intendment of the ... . , , „ , title, which enunciates the object ot the act.

Striking this section, which is susceptible of separation, out of the act, and leaving only the second and third sections,- let us enquire whether it is clear and beyond reasonable doubt that they are not comprehended within the object expressed in the title. These two- sections provide that the District Courts of New Orleans shall have jurisdiction of causes arising under the act of 3d March, 181-9, respecting landlords and tenants- in cases over $100; 2d. That the proceedings shall be summary; 3d. That the courts shall be always open for their hearing; 4th. That there shall be no suspensive appeal from their decrees except upon affidavit of merits.

Now, the object of the actas expressed in the title, was “ to give jurisdiction to thé District Courts of New Orleans, over causes arising under the act of third March, 1819, respecting landlords and tenants’.” What is the meaning of the expression, “ to give jurisdiction ?” Is it beyond all reasonable doubt insufficient to embrace the provisions we have stated ?

In the case of The United States v. Aredondo, 6 Peters; 691, we are told that jurisdiction is “ the power to hear and determine a cause.” Let us then substitute these expressions in the title of the’ act, and it will read, An act to give the District Courts of New Orleans “ power to hear and determine causes arising under the act of 3d March, 1819, respecting landlords' and tenants.” Now, to confer a power to hear summarily, is to confer a power to hear; to confer a power to determine summarily, is to confer a power to determine. The only difference, therefore, in this respect between the title of the act and the body of it is, that the one announces an intention to confer a power, and the other in granting the power specifies the particular nature of the power so conferred. It seems to me, that thus far there is nothing unconstitutional, unless we interpret the intention of the framers of the Constitution to have been, that the title of an act should be an index, not merely of the subject, but of the details of that subject.

But again, let us take another definition of the term jurisdiction from a respectable author, and apply it in a liberal sense to another provision of this Statute, namely, that which regulates the subject of the execution and appeal. Mr. Bouvier defines jurisdiction as follows : “A power constitutionally conferred upon a judge or magistrate to take cognizance of and decide causes according to law, and to carry his sentence into execution.” Here, the power to carry into execution is properly associated with the power to hear and decide ; and this power is considered- as embraced within a grant of jurisdiction, as without it the grant would be inoperative and futile. Applying this definition, as we did that of Mr. Justice Baldwin, by substituting its terms for the word jurisdiction in the title of this act, and we arrive at a similar conclusion, to wit, that the title of the act announces the intention of the law-giver to confer on the District Courts of New Orleans power to take cognizance of causes between landlord and tenant, 'to decide them, and to cany their decisions into execution; that the provisions of the law specify the particular nature of the powers so conferred, and in doing so, fall constitutionally within the reasonable scope and intendment of the title.

I entertain the same view with regard to the provisions, that the courts should be always open for the hearing of such causes. It was gerinain to the object of the act (which was to grant power to hear and decide certain causes, and execute such decisions,) to say that those courts should not only hear such causes, but be at all times ready to hear them.

While I esteem it to be my inevitable duty to give force and effect to the article of the Constitution, it is also my duty to search out, as far as I can, its fair and reasonable intendment; to construe the action of the Legislature under it in a liberal sense, and not to frustrate that action, unless its repugnance to the Constitution be brought home to my mind beyond a reasonable doubt. While the salutary intention of the Constitution should be fairly and substantially carried out, it seems to me it should not be interpreted by the judiciary with a rigor so strict that it might defeat the power to legislate, which was granted by the same instrument to the proper department of the Government.

I therefore do not concur in the decree rendered in this case.  