41 La. Ann. 904 | La. | 1889
Tlie opinion of tlie Court was delivered by
The city sues to recover $281,418 75 as due her by the defendant’s company, as the successor of one McConnel to whom she had granted the privilege of running a street railway and was to pay, as a consideration for such right, a certain bonus, on eveiy passenger carried. The period covered by tlie claim extends from 1866 to 1886, when this suit was brought.
The defendant pleaded prescription, prematurity and estoppel.
A judgment was rendered sustaining the plea of prescription as against any claim for the bonus, previous to the 24th of March, 1876, and maintaining tlie defence of pennatuiity to the claim for a certain other bonus, subsequent to that date and permitting the suit to stand for the difference.
The judgment thus rendered was signed on the 1st of July, 1887.
Answering the petition, the defendant’s company pleaded mainly, that, under the contracts with the city, the bonus stipulated was to stand in place of taxes and that, by an agreement subsequently entered into, the city relieved tlie company from tlie payment of the bonus, on payment of the taxes and that the taxes having been paid, the city cannot now claim insiypra, the bonus, as it cannot demand both.
The District Court after hearing, gave judgment 'for the defendant and the city appeals.
The defendant urges that tlie judgment first rendered, signed as stated, cannot be reviewed here, for the reason that, not having been ■ appealed from, it constitutes res judicata.
An inspection of that judgment shows that it rejected plaintiff’s demand in part, absolutely, by denying to her the right to sue for the bonus claimed prior to 24th March, 1876, the same being barred by prescription, and that it dismisses another part of the demand as premature.
The plaintiff, if aggrieved by that judgment ought to have appealed
Besides, by reference to the motion of appeal in the record and which brings up the matter in controversy before this court, it appears that the city complains only of the judgment rendered on February 25th and signed on March 1st, 1839, in favor of the defendant.
The appeal from the judgment on the merits does not imply an appeal from an anterior final judgment which disposed definitively of such parts of the demand as were not passed upon by the subsequent judgment just mentioned.
The objection is therefore well founded and the claim for the bonus said to be due anterior to March 24th, 1876, and some other, after that date, cannot be here passed upon. C. P. 593, 9 M. 519, 2 R. 342, 14 Ann. 788.
So that, the only matter to be considered is the demand for certain boivus said to be due after that date.
It would be tedious to enter into a recital of the lengthy different ordinances passed and contracts entered into, in relation to the rights and obligations of the respective parties. It is sufficient to state, that it clearly results from their spirit and tenor and from the construction put upon them by the parties, that the homes was to be in place of taxes and that all claim by the city to the bonus was relinquished on the defendants paying their taxes. The evidence showing' such payment, it follows that the claim for the bonus is without foundation, as the city can not have a standing to claim both. New Orleans vs. St. Charles R. R. Co., 28, Ann. 497; New Orleans vs. Sugar Shed Co., 35, Ann. 548; New Orleans vs. Water Works Co., 36 Ann. 432, R. C. C. 2031.
The record shows that, consulted as to the validity of a claim by the city of the bonus demafided, the then City Attorney reported adversely thereto. The special action, nevertheless, was brought by counsel specially engaged, who subsequently were joined by the succcessor of .the consulted City Attorney, but who did not offer any oral argument on the hearing of the case in this court.
The district judge, after an elaborate statement of the pleadings, and of the evidence, as well as the different contentions of the parties, and points made by counsel, with an industry which does him credit, came to the conclusion that the judgment signed in July, 1887, could not be reviewed by him, as it had not been appealed from, and passing upon the merits of what was left of the original demand by that judgment, he tersely and appropriately said:
*908 “-The suit is for the bonus of seven-sixteenths of one, from March, 1876. From that date to the present time, under ordinances passed by the City Council, the city has collected all the taxes due, $117,910 17, and no bonus. The bonus under the original contract, was in lieu of taxation.
“ The city cannot collect both bonus and taxes. Having elected to collect the taxes, she cannot now sue for the bonus. It has been so decided by the Supreme Court.
“There can be no doubt that, as the city had no power to exempt from taxes, or agree legally to a commutation, the stipulation of exoneration was in contravention of law; but it does not follow that, therefore, the city must recover the bonus. The understanding was that the bonus should bo paid, provided no taxes were demanded. If the condition upon which the bonus was to be paid be prohibited, then it is void, and its nullity is destructive of the contract upon it. .
“ The city, therefore, cannot recover both, the tax and the bonus.”
We think those reasons conclusive and we adopt them.
Judgment affirmed.