Municipality Number Three v. Hart

The judgment of the court was pronounced by Edstis, C. J. This appeal is taken by the Third Municipality, from a judgment of the Court of the Fourth District of New Orleans, dissolving an injunc [574] tion obtained against the defendant’s proceedings, under an execution on a judgment he had recovered against the municipality, and amercing the plaintiff in injunction in ten per cent interest, and twenty per cent damages, on the amount of the judgment enjoined. The ground upon which the injunction was 'asked for is, that the property-seized in execution is not liable to seizure under the writ. The objects seized appear to be: 1st, a bond, in favor of the municipality, received from the succession of Gormley, in satisfaction of a judgment against the succession for side-walks made in front of the property of the succession; 2d, a judgment against Lacroix, for a fine; 3d, certain judgments recovered for taxes; and 4th, monoy in the hands of a constable, received by him under judgments for taxes. In the case of Egerton v. The Third Municipality, 1st Ann. 435, we held, that the taxes due to the municipality could not be seized under execution on a judgment against the corporation. By far the greater portion of the sovereign power of the State is, under our Constitution and laws, exercised by political corporations, which have for their object the administration of the different civil divisions of the territory of the State, to whom part of the powers of government are delegated to that effect. The taxes imposed by those municipal bodies, for the purposes of government and police, with which they are charged, are not liable to seizure, for the same reasons that the taxes imposed by the State are not. This decision was rendered in 1846, and has, on more than one occasion, been referred to, and acted upon by this court. The reasons on which it was based are given at length in the opinion: a repetition of them would be out of place; and we only feel ourselves called upon to state, that there is nothing in the written opinion of the learned judge of the district court, against the decision in Egerton’s case, which was not fully presented and considered before that decision was made. We think, therefore, that the sums of money in the hands of the constable, being the proceeds of taxes in transit to the treasury, and the judgments for taxes, are not liable to be seized under the defendant’s execution. This case has been brought before us without any proper preparation of the evidence, on the part of the municipality; and it fails to show, that the bond can be distinguished from any ordinary debt due by Gormley’s succession to the municipality. It is, therefore, not exempt from seizure, under the rule in Egerion’s case. That rule, we think, applies to the judgment for the fine incurred by Lacroix, for the violation of a municipal ordinance. The reasons for the exemption from seizure of the fine for the violation of a municipal ordinance, enacted in furtherance of a law of the State, are identical with those which establish the exemption for taxes. Domat, Droit Public, lib. 1, tit. 5, sec. 1, no. 5 and 6. Doraat’s Civil Law, lib. 4, tit. 2, sec. 2, no. 5 and 7: Translation, 2299, 2301. . The judgment of the district court, dissolving the injunction, is affirmed, so far as it relates to the seizure and sale of the Gormley bond, or the proceeds thereof, amounting to $334; and in other respects, amended, so that the defendant, James S. Hart, recover from the municipality and P. S. Wiltz, the surety, in solido, ten per cent interest thereon from the 25th of March, 1850, and twenty per cent damages; the plaintiff paying the costs below, and the defendant those of this appeal.