2 La. Ann. 329 | La. | 1847
The judgment of the court was pronounced by
The making of a levée on the defendant’s land was adjudicated to the plaintiffs, under the act of 1842. The inspector of the district testifies that the levée was made in conformity with the conditions of the adjudication, and that he accepted it ;• that it was 165¿ rods in length; and that the plaintiffs were to receive $2 62¡ per rod, making the total sum of $434 43!. The defendant having failed to pay this sum the plaintiffs proceeded in rem against the land, and obtained an order of seizure, under which it was ultimately sold and adjudicated to the plaintiffs. These parties then applied for a monition, and the defendant appeared on that application and made opposition to the sale on many grounds, two of which only deserve to be noticed.
1st. He calls the regulation by which owners of land on the banks of the Mississippi are compelled to make and keep up levées a law imposing a tax, and maintains that this land, having been purchased by him from the United States, within the five years that preceded the making of the levée, neither the police jury, nor the legislature, had power to impose that tax upon the land.
2d. It is proved that, in the absence of the district judge, the judge of the parish in which the land is situated granted the order of seizure, under the provisions of an act approved Feb. 16, 1842. The defendant contends that so far as that parish was concerned, that power was taken away from the parish judge after the 1st day of January, 1843, by an act of the 26th March, passed during the same session of the Legislature (1842).
The firstground is untenable. The laws requiring levées to be made along the Mississippi river, are not laws imposing taxes within the intent, and meaning of the act of Congress relied on by the defendant.
The second ground, we consider, well taken. After the 1st January, 1843, the parish judge of the parish of Concordia had no authority to represent the district judge in any case, and the order of seizure, under which the land in controversy was sold, was an absolute nullity.
The court below gave judgment in favor of the defendant, and the only modification required is, to reserve the rights of the plaintiffs for the sum due them for making the levée in front of the land.
It is therefore ordered that the judgment be so amended as to reserve the right of the plaintiffs to recover from the defendant, or against the land in ccfntroversy, the sum of $434 43!, with interest from the judicial demand, and privilege upon said land; and that the judgment as amended be affirmed, with costs.
