CITY OF NEW ORLEANS.
of the goods, which, if fairly made, would entitle the plaintiff to the price. This would support either the special or the common counts. The defendant's evidence tends to show that the order for the goods was induced by a representation of the plaintiff's agent that a gas company was about to order such a plant, and install it in that territory, if the defendant did not. It is not found upon the evidence, that the'agent made any statement in that behalf which he did not believe to be substantially true. There is no claim but that the goods were of the description and quality ordered. There. is not, therefore, any such fraud shown as would invalidate the sale. The plaintiff appears to be· entitled to judgment for the amount of the goods, at the specified price, with interest after 30 days from a reasonable time to make the test. This is found to be August 1, 1886. The amount of price is $3,925.75. The interest from that date to July 19, 1887, the day of entering the judg.59. .The whole is $4,153.34. ment, Judgment for plaintiff for $4,153.34.
LoUISIANA CoNST. Co. ". CITY OF NEW ORLEANS. 1
(Oircuit Court, E. D. Louiaiana. January 11, 1887.)
MUNICIPAL CORPORATION-JUDGMENT AGAINST-RBGISTRATION.
A judgment against the city of New Orleans, reversible only in an appellate court, and not affected by any appeal, either suspensive or devolutive, was within the two years allowed by the United States statute for writ of error, capable of registration under the act of the legislature of Louisiana, No. 5 of 1870, extra session. The duty of providing for the alimony of the city is lodged in the discretion of the common council, in the constitutional and legal exercise of which the courts may not interfere.
SAME-CITY OF NEW ORLEANS-ITS ALIMONY.
Application for a Writ of Mandamua to compel the common council to include relator's judgment within the budget for this year. E. HOll"';-:], McCaleb, for relator. W. H. Rogers, City Atty., for respondent.
BILLINGS, J. Two points of objection are made by the attorney for the city. 1. That relator's judgment is not final and executory. This objection involves the construction of the act known as No. 5 of the acts of the legislature of Louisiana in 1870. Up to the time of the passage of. this act writs offieri Jacias ran from the state courts against the city of New Orleans. This act abolished that writ, and substituted therefor the registration of the judgment with the comptroller of the city I and payment
JReported by Joseph P. Hornor, Esq., of the New Orleans bar.
by appropriation by the common council in the ardell of registration. Section '1 takes from creditors the right to resort to manda'lnus upon the fiscal officers of the city before judgment. Section 2 prohibits the issuance of executions (writs of fieri facias) to enforce the payment of any final j\ldgment against the city "condemning said corporation to pay any sum of money/' and provides for their registration. Section 3 provides for the payment of judgments the city which are "final and executory ." ' . This statute, it is to be observed, took its place amol1g the statutes of the state providing for the payment of money judgments without disturbing or changing the form Of enforceability of judgnlents. It was applicableonly to cases in which the city was the debtor. It left judgments in <litycases as they had been, and as all other judgmentsremained , 8ubje<lt to suspensive and devolutive appeals. Those judgments, which had been final and executory.continued so, city judgments as wen as all others. There was as to city Judgments merely thes\1bstitution of one particular means of enforcement or collection for another. The question presented here is whether a judgment reversible only in an appellate court, and not affected by any appeal, either suspensive or devolutive, was, within the two years allowed by the United States statute for writq£cJ,'ror, capable or That an execution could have been'issued on such ajudgmEmt is not denied. It follows that it equally carries with it the right of registration.. . In Arrowsmith v. Durell, 21 La. Ann. 295, the court holds that even a judgment of the district court iI} a case which. was pending in the appellate .court upon a devolutive appeal, and while so pending, had become The courtin its reasoning meets theques,tion of finality, and whileit says such a judgment "is not final in the largest sense of a final judgment," i. e., Civil Code, art. 3522, to maintain a plea of res judicata, that,nevertheless it is final for the purpose of the running of prescription against it. This is the adoption ofthe samemeaningas is attached to the word "final" in the statutes of congress when they provide that writs of error and appeal may lie from all final judgmentsof the circuit courts, etc. Rev. St. §691. It certainly is not necessary to be seriously considered whether a judgment whichl!! of such a character and condition that the legislature has made prescription run against it is not executory in the one solitary mode left by the law for its execution and enforcement. My conclusion, therefore, is that the relator's judgment is, within the meaning of act No.5 of acts of 1870, final and executory, and was properly registered under that act. 2. What.tights has the relator to having his regifltered Judgment paid through the writ asked? The sale question presented in this part of tlile case is, has the relator the right tQ have his judgment paid out of the tax within the 10 mills? There is no question in this caSe' of constitutionallaw.The question may be stated thus: Can the court usurp the 'discretion wbich the legislature of the state has vested in the man council, as to the amount within the 10 mills which they must.devote to what is termed the alimony of the city?
UNITED STA'1'ESV·· CITY' OF NEW ORLEANS.
Reference was made to the ,case of Wolff v. New Orleans, 103 U. S. 358. But in thatfcasethere was obstacle coming from a limitation of taxation. The prayer was for a budget or a special tax, and the court maintained a right to a special tax. ' In Carondelet Canal Co. New Orleans, 30 La. Ann. 129, the supreme court of this.state awarded a mandamus to compel the levying of a speoialtax in .tbe annual budget sufficient· tapay relator's and all prior registered judgments. But this case, as I understand it, did not inY91veany question of liniitation of power of taxation, or of controlling the common council in the.Jllatter of the government of the city, including provisions for the schools, police, lights, etc., and all the public necessities of civilized communities. But the matter presented here is dealt with, as it arose, in a series of subsequent cases, wherein the court lays down the doctrine that the duty of providing for the alimony of the city is lodged in the discretion of the common council, in the constitutional an<ilegal exerchle of which the courts may not interfere. In Bdlpy v. Oily, 33 La. Ann. 79, where there was a right toa special tax, thequ'estionwas whether a tender of 10 mills by the tax-payer was sufficient. The court at page 89 say that iri a former case the court "rejectedthe idea that such a construction could be placed upon the legislative limitation as to require the judgment tax to be taken out of the 10 mills,and thereby deprive the parish of all means of paying its current expenses." In Be Isaacson, 36 La. Ann. 56, at page 59, the court says: "This question we have before had occasion to consider, and have held that the making the estimate and appropriation for the necessary expenses of the city 'was a legislative function on the pint of the council, with which the courts could nolinterfere so long as legal and constitutional provisi'ons and limitations were preserved." In Marclu:tnd v. City, 37 La. Ann. 15, at page 18, the court says: "The duty [the duty of levying a tax to pay registered judgment] we have held, however, is subordinate to the higher and absolute duty of first providing, out of the revenues applicable to that purpose, for the necessary alimony in support of the city." I think these authorities are a well-considered interpretation of the meaning of the legislation upon the point presented, and furnish a clear guidance for this court. The relator is entitled to have his judgment registered and paid in the order of its priority, so soon as the common council can, consistently with the existing constitutional limitation upon taxation, and after for the alimony of the city, provide for the payment of the same. The judgment will be that the common council be required to include this judgment, in its order of priority according to registration, among the fixed liabilities of the City of New Orleans, which the city must provide meanS to· pay, and that after providing for the items of the alimony they appropriate all the balance of the 10-mill tax leviable of the this year to or towards the payment of said judgment, in its order of priocity, and so on, from year to year, till the said judgment is wholly paid.
CO. tI. DOUGLAS
(Oirouit Oourt, D. Nebraska. 1887.)
PUBLIOLA.NDs-'-GRANT TO UNION PAOIFIO RAILROAD-SOHOOL LANDS.
It was the evident intention of congress by the act of July 1, 1862. (12 St. U. S. 491,) giving a right of way to the Union Pacific Railroad Company, to grant such right of way through those lands which. by surveys should be found to be sections 16 and 36. the school sections which it intended to giYe to the future state of Nebraska, pursuant to the provisions ofthe organic act of 1854, (lOSt. U. S. 283,) creating the territory of Nebraska.
"But we go further, and whensoever a tract of land has once been legally appropriated to any purpose. frolJl that moment the land thus appropriated becomes separated from the mass of public lands, and that no subs -