60 So. 2d 895 | La. | 1952
Rehearing
On Application for Rehearing
In plaintiffs’ application for rehearing it is contended that the legality of the tax is contested and that therefore this Court has jurisdiction of the appeal. They cite and rely upon State v. Whitehead Motor Co., Inc., 179 La. 710, 154 So. 912, and Town of De Quincy v. Wood, 210 La. 504, 27 So.2d 314, 166 A.L.R. 1075. These cases involve the legality of a license and a tax already imposed whereas in the present case the tax is not imposed, in fact the purpose of the suit is to compel the imposition of the tax.
It is provided in Article 7, Section 10 of the Constitution of Louisiana, 1921,
It is further contended that the amount in dispute or the fund to be distributed exceeds $2,000. The law is well settled that on appeal from a judgment refusing to make a mandamus peremptory this Court is governed as relates to jurisdiction as in other cases on appeal. State ex rel. Roussel v. Grace, 219 La. 1000, 54 So.2d 428 and the cases therein cited. And the test of appellate jurisdiction under Article 7, Section 10 of the Constitution is the amount in dispute or the fund to be distributed. The plaintiffs in the present case have not asked for judgment in any amount but are seeking to compel the defendants to perform the ministerial acts of levying and collecting the tax.
Although it is true that this Court entertained jurisdiction in a number of earlier decisions, relied upon by the plaintiffs, these decisions are not in accord with the later jurisprudence. This Court became cognizant of the fáct that we had entertained jurisdiction in a number of cases in the past because the question of our jurisdiction had not been raised, but under our new rules the appellant is required to set forth in his brief the appellate jurisdiction of this Court as applied to the case. See Revised Rules of the Supreme Court of Louisiana, Rule X, Section 2.
There being no amount in dispute or fund to be distributed and the other provisions of the Constitution ' by which appellate jurisdiction is vested in this Court being inapplicable, we adhere to our original opinion and the later jurisprudence of this Court. Montegut v. Louisiana State Board of Dentistry, 219 La. 307, 52 So.2d 862; Kramer v. State Board of Veterinary Medical Examiners, 219 La. 817, 54 So.2d 95; State ex rel. Roussel v. Grace, 219 La. 1000, 54 So.2d 428; Orleans Parish School Board v. City of New Orleans, 219 La. 1063, 55 So.2d 245; State ex rel. Doane v. General Longshore Workers, I. L. A. Local Union 1418, 221 La. 216, 59 So.2d 126.
Accordingly, the application for rehearing is denied.
Lead Opinion
This court is without jurisdiction to entertain the appeal in this case since it involves the right of plaintiffs to compel the defendants to levy and collect drainage taxes for the payment of defaulted drainage bonds. It appears from the record that the plaintiffs had previously sought a. judgment on the bonds and to compel the levy and collection of the taxes in a suit which was dismissed in the lower court on an exception of improper accumulation of actions interposed by the defendants. Thereafter, the present suit was instituted only to compel the levy and collection of the taxes or, in other words, to compel the defendants to perform ministerial acts and the value of what is involved in collateral questions, which may have to -be determined in order to decide the suit, does not govern the appellate jurisdiction. The main demand controls the jurisdiction of the appeal. Succession of Solari, 218 La. 671, 50 So.2d 801 and authorities cited therein.
Our appellate jurisdiction is governed by Article 7, Section 10, of the Constitution and the main demand in this suit does not come within its provisions. Any collateral question involving an amount in dispute or a fund to be distributed, which might have to be -determined in order to decide this suit, would not govern the appellate jurisdiction.
It is ordered that this appeal be transferred to the Court of Appeal for the Parish of Orleans, provided that the record is filed in that court within thirty days from the date upon which this appeal shall become final; otherwise the appeal shall (be dismissed. The cost incurred in this court shall be paid by the appellants. .
