
    
      POLICE JURY vs. M'DONOGH.
    
    Appeat, from the court of the parish and city „ OI eW-Uf leans.
    A police jury inaysueformo-ney expended in paying for delinquent °na planter’s levee.
    bers of it may be witnesses.
    The mav beíec'orZ ed in Vrench. When works are especially ordered, the visit of the parish judge is not essential.
    A law is not Uncons titution-ai which provides a means of recovery for debts due before its passage,
    The plaintiffs claimed from the defendant four thousand and odd dollars, paid out of the parish treasury to planters ordered to work on ,v . levee, in the year 1815. There was judgment against him, and he appealed.
    
      Tarner, for the defendant.
    The plaintiffs were not authorized to sue, as a corporation, till the act of the 22d of February, 1817, upwards of two years after the cause of action in the present case occurred. The law cannot have a ⅛ , retrospective effect: it may authorize them to sue, ^ J ' whenever the cause of action 'is posterior thereto.. A claim which could not he enforced by a suit, is not a legal claim, and the situation of the debtor cannot become harder, without any act of his. The parish court therefore erred in sanctioning the suit.
    
      The records of the proceedings of the police jury, being kept in the French language, cannot have any effect in a court or out of it. If the general assembly had, in that language, enacted those regulations, binding on the defendant, he could not have been compelled to have yielded obedience to them. Const, art. 6. sect. 15. Nemo plus jus dare potest quam ipse habet.
    
    The police jury cannot have any power but that which they derive from the legislature who created it, and how could the legislature grant to them the power of doing what they could not themselves do. Members of the police jury were also improperly admitted as witnesses.
    The regulations relied on were not enacted by a competent authority. The jury was not then duly organized ; for one third of the justices of the peace commissioned in the parish were not present, as required by the act of the S3 of March, 1813. Out of twelve justices commissioned in the parish, only three were present.
    It is provided by the act of April 6, 1807, that, if the parish judge, going in company with two inhabitants to examine Whether the works ordered have been performed, find any part of them not done, he shall order th© delinquent to complete it within a given ti;»e, and if this be not done, the judge shall pro* cure it to be completed, at the delinquents expence, paying therefore at the rate of one dollar for each day’s work for the slaves empioy-ed. 2Martin’s Digest, 588, n. 2. In the present case there was no examination, no inspection by the judge — no time fixed by him, at the expiration of which only, the slaves of neigh-bouring planters might have been placed on the levee to complete the work, at one dollar per day. Here the price fixed by law was disregarded, and the jury arbitrarily paid and expect to recover from the defendant at the rate of three dollars per cubic toise, while it is in evidence that a negro may complete this toise in a day. The defendant, if he be liable to pay any thing is answerable only at the rate fixed by law, and the plaintiffs have no right to resort to a quantum meruerunt.
    
    Lastly, it is in evidence that the work for Which payment is claimed was unnecessary.
    Moreau, for the plaintiffs.
    That law could not be said to be intended to have a retrospective effect by which a corporation, a minor or any other individual incapable of acting for himseif, would be provided with a person to stanu in court for the protection of rights which could not otherwise be defended. This would Blake no chance in the nature of the right or ° . the obligation. Before the territorial act for the incorporation of the city of New Orleans the actions instituted for the protection of the municipal rights of its inhabitants were not brought in the name of a mayor, aldermen, &c. A mu-cipality and before that a cabildo represented the inhabitants. Now can it be pretended that the new administrators cannot prosecute in cases in which the cause of action accrued before their creation. And what difference can there be between providing a corporation with new officers or giving them such officers, when it is not provided with any? Was it ever pretended that a tutor could no„ prosecute the debtors of his minor, because before his appointment they could not be effectually sued, as, in the language of the counsel for the defendant, a claim, which cannot be enforced by a suit, is not a la-gal claim ?
    It is true the constitution of the state requires that all laws that may be passed by the legislature, the public records of the state and the judicial and legislative written proceedings of the same be promulgated, preserved and conducted in the language in which the constitution of the IT. S. is written. But, are the minutes of the police jury of a parish, those of the corporation of a town, the regulations of an hospital or a bank* . , , , ' . , . ? even when by-laws are enacted, legislative, proceedings of the state? Are the me.«hers, who enact such by-laws,the legislature? Certainly not.
    The interest of an inhabitant of a parish or a city in the aflairs of the corporation is so very minute, and it so generally happens that evidence necessary to the support of corporate rights is in the possession only of the members of such a Corporation, that the law has provided that such an interest should not exclude their testimony, g Martin’s Digest, 48S, n. 5.
    
    It is true the act of 1813, c. 4, § 14, requires the presence of one third of the justices of the peace commissioned in the parish, and a majority of the jury, in order to constitute a quorum, and the defendant’s counsel urges that there were only three justices present, who consequently did not form a third of the whole number. It is admitted, that if we reckon the justices of the city of New Orleans, as part of those of the parish, th re were present only one fourth of the latter, there being one justice in each of the four districts of the parish and eight for the city, in all twelve; so that the three justices present constituted only one fourth of the Whole, when the regulation or order on whichihe present -action is grounded was adopted. But, in s . . . the city of New Orleans, the justices appointed in each of the eight sections in which the city is divided has, by the tenor of his commis-gion, the title of a justice of the peace of the 1st. 2d or 3d section of the city of New Orleans, as the case may be. 2 Martin’s Digest, 540, n. 20. And the authority of the police jury of the parish of Orleans does not extend to the city of New Orleans, in which the corporation exercises the functions of the police jury. Ib. 294, art. 9. Accordingly the justices of the county alone attend the meeting of the police jury and those of the city are never present to it.
    The defendant’s counsel further contends that the police jury could not by their regulations alter the forms prescribed by the legislature, or the rate which it has fixed.
    It is true that the act of 1807 provides that at the expiration of the time fixed by law for the termination of the works, it shall be the duty of the judge to go, in company of two inhabitants, to examine the said works, in order to satisfy himself that they are executed in the manner prescribed by the regulations, and any inhabitant, who shall have failed to execute the same, shall forfeit and paj the fine fixed by the regulations, and the judge shall order him to execute his said work within a certain time*:' after which, if the said inhabitant has again ne-> glected to make it, the judge shall order the-work to he made at his, the delinquent’s expenses, either by the job, or by the inhabitants of the parish, each of whom shall send to the spot a number of able bodied negroes, proportioned to the strength of his gang, for the hire of which negroes they shall receive one dollar per day. S id. 588, n. S. The 10th article of the regulations of the police jury of July 6, 1815, directs that the syndics, assisted at least by two planters of the neighbourhood, will order the works to be done to the existing levees.
    There is no contradiction between these two dispositions. The inspection, which the judge is directed to make by the act of 1807, is only to take place after the period within which the works on the levees are to be completed, which ought not to prevent the jury from taking proper measures as to the manner in which these works are to be ordered or executed.
    Farther, the legislature speaks of ordinary reparations or works to be done on levees. The Í 1th article of the regulations of July 8, 1815, requires the works to begin in July and be completed in November following. The ex ami-nation of the judge after that time ought not to # " prevent the jury to direct in what manner, even this ordinary work is to be performed, or ordered by the syndics. As to extraordinary works the legislature has vested the jury with an unlimited power. — 1807. c.
    The jury were likewise well authorized to allow for this extraordinary work, at the rate of three dollars per cubic toise. The act of the legislature cited relates only to ordinary repairs to the levee. Tn extraordinary, where a crevasse threatens the inundation of a whole neighborhood, the impending danger cannot be averted by ordinary means, and the risk of being carried away or of receiving material injury may prevent negroes from being obtained at the ordinary price.
    Lastly, the defendant contends he is not babble, because the works performed on his levee were ordered by the jury without any necessity. He supports this part of his defence by the testimony of his own overseer and two of his neighbours. Our only answer to this is that, the law has constituted the police jury legal judges of the necessity of a work of this kind.
   Mathews, J.

delivered the opinion of the court. The police jury brought this action, it* their corporate capacity, to recover from the def fendant, the sum of fe¡99 dollars, paid by them to several inhabitants of the parish, for work and labour done in making a levee on the land of the defendant, who resists their claim on every ground that could be imagined, in a laborious and ingenious defence.

The answer contains a peremptory exception to the sufficiency of the petition, in law, to authorize a recovery and a general denial.

During the trial of the cause, in the parish Court} eight bills of exceptions were taken by the defendant’s counsel and must be disposed of before a discussion on the merits.

The first is to the introduction of any testimony, on the cause of action set forth in the pe*> tition. This is nothing more than a repetition of the exception in the answer, which was attempted to be supported on two grounds : that the police jury have no right to sue eo nomine, as a corporation and that, by their own shewing, they have not pursued the course prescribed by the law by which they were created and under ■which they now act.

The acts of the legislature of 1807 and 1818 have created political bodies to direct nnd man-’ age the police of their respective parishes, ua-tier the name of police juries : and, it is a pnn- . . ciple of law at, when a corporation is formed and named hy a competent authority, it acquires certain rights and powers, capacities and in-capacities, among which is that of suing and being sued hy its corporate name. Civ. Code, 88, art. 6. 1 Slack. 47T. If the creation and name given to a corporation are circumstances in themselves sufficient to confer on it the capacity of suing and being sued, there can be no necessity for any express enactment, to this effect. But, there is an act of assembly of 1817? by which police juries are authorized to sue in cases like the present, and, although passed long since the performance of the work, for which a remuneration is claimed, in the present action.it is not, in our opinion, unconstitutional, as being ex post facto, or impairing the obligation of a contract. It creates no new penalty for an act or offence previously committed. So far from having a tendency to impair any obligation, arising from a contract or quasi contract of the parties, it is declaratory of the means by which it may be enforced. The capacity of the plaintiffs to sue, in their corporate name, is thus far clear and evident. Their right to recover on the cause ef action, as set forth in the peti» tion, depends on the powers which they possess to act for the individuals of their parishes, found íq circumstances like those in which the defeud-ant is stated to have been, as the time the work and labour was performed for him by their order.

It is agreed that police juries derive all their powers and authority from the acts of the legislature above cited, and that these are to be taken and considered as one act, so far as the provisions of the first are not inconsistent with those of the latter. Both acts grant to police ju* lies power, in the most general terms, to make regulations relative to roads and levees according as circumstances may require, and, in some instances, the judge of the parish has the right of ordering a levee to be made, at the expense of an inhabitant, who fails to comply with the regulations of the police jury.

Thepetitiou states that the defendant was required to complete his levee, within a limited time, which he had been ordered to make under a-regulation of the police jury — that he was unable or uuwilling to perform the work required of him, and the parish judge ordered it to be done, at his expense, which was accordingly carried into complete execution and paid out of the parish treasury — &c. It is believed that the petition sets forth a good cause of action, and evidence ought to have been received in support of the allegations therein, and consequently that the parish court was correct in overruling the defendant’s objection to any evidence in support of the action.

The seven remaining bills of exceptions are to the admissibility of certain witnesses, on the score of incompetency and of written evidence offered by the plaintiffs. The objection to the witnesses, on the score of their being members of the corporation, must be repelled, according to the act of the territorial legislature of the S6th of March 1806, 3 Martin’s Digest, 482, n. 5.

The objection made to the admission in evidence of the minutes of the deliberations of the police jury, on account of their being in the French language ought not to be sustained. They are not of that class of proceedings required by the constitution to be in English.

Taking the whole of these exceptions together we do not discover in the opinion of the parish court, any error requiring that the cause be remanded, and we will proceed to investigate it on its merits.

In doing this, it is necessary to recur to what has been already noticed, in part, in treating of the first bill of exceptions, in regard to the pow-ei's granted by law to police juries. They have a general power to direct the making of levees, jn tlieir respective parishes, and as to their structure and the time within which the planters may be required to perform the works ordered thereon. It is a power which ought to be discreetly used : but to give a full effect to it, whenever an inhabitant is unable or unwilling to complete a levee, required to be made by him, accordio n; to the dimensions and within the time prescribed, and the whole neighborhood is exposed to injury by his inability or perverseness, it has been thought proper by the legislature to grant power to the parish judge to order it to be made at the expense of the delinquent.

In the present case, the appellee was required to make his levee, the necessity and extent of which was determined by the police jury.- He failed to do it, and the work was completed by the slaves of the neighboring planters, in obedience» to the order of the parish judge, and they were paid out of the parish treasury. But it is said that, these things were done without proper authority, because it does not appear that the jury, who made the regulations relative to the levee of the parish in general, and particularly in relation to that of the defendant, were con- • séituted as the law requires, and therefore all . . these acts are void, and because the judge did not visit the levee of the defendant as he was required to do by the act of 1817, 2 Martin’s Digest, 588, n. 2, before he ordered the work to be done at his expenses. The police jury must be presumed to be legally organized when they acted, unless the contrary be shewn, which in the present case, it is believed has not been done. The list of the justices o'f the peace, produced by the appellee, from the registry of the executive, does not contradict the presumption that a sufficient number, of those who were distinctly of the parish, were present at the enactment of the regulations relied on by the plaintiffs in the present case. The visits of the parish judge, before ordering the making and completion of levees, at the charge of individuals, can only be inferred as means of obtaining correct information when the works have been ordered by the general regulations of the police jury. In the present case, the jury have1 by special regulations required the work to be completed by the appellee, and on his failure, the neighboring inhabitants were compelled to perform it, and have been paid by the parish to whom the amount ought to be refunded, according to the just value of the work performed* What this value mav be is the only question . . . , which remains to be examined.

The work was paid for at the rate of three dollars per cubic toise. The act last cited allows to the inhabitants one dollar per day for the labour of their slaves, when compelled to work as in the present case : we are of opinion that this provision of the law ought substantially to be carried into effect. The evidence is various and contradictory, as to the time which would be requisite for a good la-bourer to complete a cubic toise of levee. Some of the witnesses say that it would require three days and others only one. The truth most probably would give a medium portion of time— twh days for each toise, which we think proper to adopt, in fixing the amount of the judgment.

It is, therefore, ordered, adjudged and decreed, that the judgment of the parish court be annulled, avoided and reversed: aud proceeding to give such a judgment as in our opinion ought to have been given, it is further ordered, adjudged and decreed, that the plaintiffs and appellants recover from the defendant and ap-pellee the sum of two thousand, seven hundred and fifty-two dollars, with costs in both courts.  