41 La. Ann. 540 | La. | 1889
The opinion of the Court was delivered by
This is an application for a Prohibition.
The complaint is that the district judge, over the- objections of the relator, has persisted in entertaining jurisdiction over a controversy decided by a city judge, from whose judgment an appeal lies to this court and not to the District Court.
The respondent judge denies any usurpation of authority and undertakes to vindicate his course.
It appears that a suit was brought before the First City Court, by a husband and Ms wife, in which the former claiming to be tho owner of certain improved real estate, in the name of the latter, avoring that the same, though exempt under Art. 307 of the Constitution, had been assessed at $3000, prayed contradictarily with the Board of Assessors, that the property he declared exempt and that the assessment bo can-celled.
Prom a judgment adverse to the plaintiff, an appeal was taken to tho Civil District Court for this parish, and the case was allotted to Division E.
An exception was there filed by the City of New Orleans, who had been made party to tho suit below, to the jurisdiction of said court, as an appellate court, resting on the ground, that, as the constitutionality of taxes was involved, the appeal should have been to the Supremo Court of the State.
The exception was overruled and the District Court proceeded to
It is not disputed that the property, represented as exempt from taxation, was assessed as alleged.
If it be true, as averred, that this property is exempt, for the reasons given, it became the right of the owner to appeal to the courts for protection, in order to avert future proceedings for the collection of taxes considered to be illegal, because claimed in contravention of constitutional immunity.
It is apparent that, had the State and city at the proper time, sued to recover the amount of taxes said to bo due as assessed on the property, the defendant owner could validly have set up the facts justifying, a defence of illegality or unconstitutionality of the taxes, and that, from a judgment on that, issue an appeal, on the facts and law, would have lain exclusively to the Supreme Court; for the reason, that the legality or constitutionality of a tax would have been involved. Const. Art. 81; City of N. O. vs. Arthurs, 36 Ann. 98; State ex rel. Bertel vs. Board, 34 Ann. 574; Minden vs. Silverstein, 36 Ann. 56, 912.
Now, instead of being sued, the owner, in apprehension of proceedings for the collection of taxes, brings an action in which he sets up, as a means of attack, that which ho could have urged as a means of defence.
In such case, it is clear also that the demand for exemption implies the legality or constitutionality of the taxes, in consequence of the nullity of the assessment, and that the appeal from the judgment of the city court, ought to have been, not to the District Court, but to this court.
It is true that, after the exception to the jurisdiction of the District Court, as an appellate court, had been overruled, the case was heard and determined on its merits, but this further action is of no consequence, as consent cannot confer jurisdiction.
The district judge says, that the exception to the jurisdiction was filed after submission of the case, and that it was by consent that ho passed upon the merits as to the title of the property.
It. was immaterial when the exception was filed. It could have been at any stage, and want of jurisdiction could have been noticed by the court proprio moin.
Surely, had the amount involved been large enough, the District Court, as a court of origina] jurisdiction, could have passed on all the questions presented, touching both the title to the real estate and the claim to exemption ; but, as an appellate court, it had no greater power than the city court possessed.
It is proper to observe that the action of the owner claiming exemption, was the more appropriate as there was no prospect of his being sued by the State ox city, who are prohibited from doing so bylaw, and that it was preferable for him to act when and as he did, than to do so, when his property would have been advertised for sale for non-payment of taxes.
It is therefore ordered and decreed that the restraining order made in limine be maintained and that the prohibition aslced be made peremptory.
