| La. | Dec 15, 1857
A rule has been taken against the defendant to show cause why a writ of mandamus should not issue against him, to compel him to rescind an order setting aside an appeal to this court, which he had previously allowed the relators in four suits before him, wherein he had rendered judgment against them and in favor of one Tomné.
In answer to the rule, the defendant shows for cause why said mandamus should not issue, that said cases were instituted by the farmer of the St. Mary’s Market for the recovery of dues owing to him, for the rent of two coffee stands in said market; that the defendants were the occupants and tenants of the stands, and the dues were payable daily; that on the failure of relators to pay their per diem rent, suits were brought at the end of each week amounting to the sum of twenty-four dollars, and that he considered that the cases could not come under the provisions of Art. 62 of the Constitution, -as they involved merely an ordinary question of rent due for the occupation of two stands in the market of which the plaintiff was the rig'tful farmer and lessee.
The answer of the defendant, which is not controverted, shows that none of the above questions were before the lower court for trial. But if we look into the petition of the relators, to ascertain the grounds of their complaint, we find, that they complain that ordinance No. 3372 of the Common Council of New Orleans is illegal and unconstitutional as being ex post facto, and especially contrary to Article No. 105 of the Constitution of the State,
The ordinance is in these words': “ Resolved, that the provisions contained in Article 33 of the ordinance No. 418, approved November 20th, 1852, so far as relates to coffee stands, be made to apply to all the public markets in this city. Provided, that this resolution shall not he construed in such manner as shall impair or interfere with the right and privilege of any lessees of said markets. And provided further, this resolution shall not he construed so as to conflict with any of the provisions contained in ordinance No. 2458, approved November 29th, 1855.”
No. 33 of ordinance 418 is in these words : “ Art. 33. That the farmers or lessees of the vegetable markets of the Second District shall not he entitled to collect other dues than those hereinafter mentioned, viz: Eor each vegetable table of four feet, and each stand for the sale of poultry, game, bread, fruit, fifteen cents: it being understood for every table or stand situated at the end of any of the rows of the tables in the market, the farmer shall he entitled to charge twenty cents, and it shall be the duty of the Surveyor to designate which are corner tables ; and for each coffee stand one dollar.”
It is apparent from an examination of these ordinances, that they do not pase impose ex post facto any fine, forfeiture, or penalty.
If laws and ordinances, not unconstitutional in themselves, have been misapplied by the inferior tribunal for want of a correct appreciation of the facts in cases where the amount involved is under three hundred dollars, it is not in the power of this court to relieve the parties. See case of Board of Health v. Pooley, Nicol & Co., 11th An., 743.
As in these cases we have no power to revise the facts, this conrt at least is bound to suppose they have been rightfully determined.
Rule discharged at the costs of relators.