The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1869-01-26
supreme Court Decisions.

ferro:
BY ASSOCIATE JUSTICE R. K. HOWELL.
No. l9is. s. s. Fish vs.. 7. W. Collens. Appeal
from The Sixth District Court of New Orleans.
E. Filleul for appellant, E. Il. McCaleb and E.
BermudeZ for appellee.
This il contested election case in which the
plaintiff has appealed.
The motion to dismiss the appeal is ordered to
be overruled with costs.
BY ASSOCIATE JUSTICE W. W. HOWE.
No. 600. Geo. Sehlosser VS.. Estate of A. Ebin-
ger. Appeal from the Second District Court.
j. B. Cotton for plaintiff and Henry Dugue for
defendant and appellee.
The amount in controversy in this case being
less than $780, and though both parties have suo
mitied the case on its merits, the court being
without jurisdiction can only direct a dismissal
of the appeal. Myers va. Mitchell, 20 anu.
Ii is therefore ordered that the appeal herein
be dismissed with costs.
BY CHIEF JUSTICE ]. T. LUDELING.
No. l462-Succession of H. E. A. Dolnouds on
opposition of Louisiana Mutual Insurance Co. 20
account of tutrx and administrator. Appeal
from the Second District Court of New Orleans.
?. G. CuveIlier for tuirix and appellee. Clark and
Bsyne for appellant IL is ordered, adjudged aud
decreed tbat.ihe judgment of the.lower court be
avoided and reversed and that the opposition OF
the Louisiana Mutual Insurance Co. 10 the &C
count and tablesux of distribution filed by Marie
Fourcsde, widow of q. e. A. Dolhonde. natural
tUirix of her minor children, be sustained to the
extent of SS000 with per cent. per annum in
terest thereon from 10th October, 1865, with pri-
viege on the proceeds of the sale of the property
mortgeged to secure the payment OF the notes
sued Oh and is further ordered that the tabeaux
be amended ana that the Louisiana Mutual lnsur-
snce Co. be placed upoa said tableanx as mort
gagged creditors to be paid by preference over all
other mortgage creditors, except Latte, DudlnO
& Co. and the New Orleans Mutual Insurance Co.
1t is further ordered that the succession pay the
costs in both courts.
BY CHIEF JUSTICE ]. t. LUDELISG.
No. l225-Pierre Cous SWAT VS.. Theodule Oliver,
appeal from the Sixth District Court OF New Or
leans. On rehearing.
In case so peculiarly within the province of
jury, We would not disturb the verdict, ii it
not manifestly wrong. Bat we not satisfied
that under the circumstances this court should
sess the damages.
1t is therefore sdjudged and decreed that the
judgment of this court, rendered on the 20Jh
April, 1868, be avoided, that the judgment
of the lower court be reversed, and that the
verdict Of the jury be set aside. 1t 5 further or
dered that this case be remanded to the District
Court for further proceedings according 10 law,
and that The appellee pay costs OF the appeal.
BY CHIEF JUSTICE LUDELNG.
No. 1865. d. f. Mandel vs. Mayor and City Of
Court of New Orleans II. j. Leovy for defend.
ant and appellee; b. r. Forman for plainuff and
appellant.
The evidence shows that the plaintiff was ap-
pointed member OF the board of assessors of
the city of New Orleans by the military command
ant of the city of New Orleans, on the 10th day
OF September, 1862. and that he continued 10 dis
charge the duties OF said Office until the 7th OF
November, 1865. when be was removed by Acting
Mayor Kennedy.
Ii is in proof that the compensation to be al.
lowed to the assessors "for all services performed
by them was fixed at one hundred and seventy
five dollars per month on the LIST December, 1862 !;
that this salary was payable monthly; that il was
llur "A Dnn 0f MIA oxuffn
says: " TIE assessors have always been paid as
the pay rolls fall due, long as they retained
their positions. don't remember that the asses
sOrs were ever paid the balance of the year after
18th November, when their work was complete
There is no evidence 10 show that the salary
above fixed was changed until June 18th,
1866, long after the plaintiff had ceased
to perform the duties Of the office. 1t
is fair TO presume that the salary at which he
was engaged as q member of the Board Of Asses
sors was 81 IS per month.
BE was entitled to be paid for the time he
serye ed as a member of the Board of Assessors, TO
wit from the 18th of September, 1862, to the 9TH
of Move ber, 1865, at the rate of sl75 per month
The plaintiff claims that he had a right to the
office for the term Of tlcO pears, dating from the
first Monday in January. 1865. and ending the first
Monday in January, 1867 and that, notwithstsnd'
ing bis removal on the 7th November, 1865, he is
entitled to be paid for the unexpired term of two
years. He further claims additional compensation
for assessing the Eighth District in 1865.
The evidence in the record proves that the city
of New Orleans had been divided into twelve
assessment districts, and that those districts were
reduced to six in the early part of 1865, and that
10 the plaintiff was assigned the duty of assessing
the Fourth and the Eighth Districts.
The judge, after going over all the points and
giving his reasons thereon, says:
The plaintiff has been paid all that was due him,
and the evidence in this case satisfies US that his
claims are without any foundation in law or in
equity. He was appointed to perform the duties
OF assessor by the military authorities in New Or
leans without any fixed term; he held that posi-
ton at their pleasure, and he had right TO the
salary of the Office beyond the time he actually
served.
BY ASSOCIATE JUSTICE HOWELL.
No l945-City of New Orleans VS.. c. Lusse
and X. Rhulmsn.-Appeal from the Seventh Dis
trct Court of New Orleans. F.. Michinsrd for ap.
pellant, E. Howard McCaleb for appellee. Tie
| defendants are sued for license tax imposed by
section 80 of ordinance No. sls, N. s., upon their
! occupation as brewers, for the year 1868. They
| pleaded exemption therefrom by virtue OF the
third section of the act of 1885, page 327 entitled
Gan act in relation 70 municipal corporations" in
/ the following words " That it snail not be law
full, hereafter, for any municipal corporation with
in this State to lay any tax on persons engaged IL
selling articles of their own manufacture, manu-
featured within this State"
The city contends that this section Is repealed
by article l24 of the constitution OF 1864 and ar
ticle lis of the constitution of 1885, which ii Il
| uIkcu WltuufCW lIOu TIE DtklsldluIt pOWe
TO exempt from taxation, save in certain specified
cases in which the present tax is not included
The article ia reads Taxation shall be equa
and uniform throughout the State. All property
shall be taxed in proportion to its value, to b'
ascertained as directed by law. The General As
sembly shall have power TO exempt from taxation
property actually used for church. school or char
table purposes. The General Assembly shall
levy an income tax upon all persons pursuing an
occupation, trade or calling. and all such persons
shall obtain license as provided by law"
The Judge, after reasoning on the power of the
General Assembly and quoting the la applicable
TO the case, decides: The judge quo did no
err in giving judgment in favor of the defendants
1t is therefore ordered that the judgment ap
pealed from be affirmed with COSTS
BY ASSOCIATE JUSTICE W. G. WILEY.
| No. l436-Widow Chas. Dumonchel. turiX, etc.
VS.. thomas Handicapped from Second Judi
cial District Court. parish St. Bernard. Defen
dant has filed motion to dismiss this appeal OF
the following grounds
LIST. Because the citation of appeal is defective
in this, sit does not purport to have been issued
in the name Of the State Of Loulsiana, cit is moi
sealed with the seal of the court" it was not
served on appellee by the sheriff of the parish
where he resided at the time, and ii does not
ify the number of days given appellee to answer
| dfa