State ex rel. City of New Orleans v. Judge of the Second City Court

The opinion of the Court was delivered by Bermudez, C. J. This is an application for a mandamus, to compel’ the defendant to sign and issue process in a case before his court. The defense is, that the stamps required by law were not affixed to the claim and that, until such stamps have been attached, the judge is-prohibited from acting. It appears that the city of New-Orleans brought suit by rule, against-a party for a license, claiming $50 and that stamps for $1.50 wore-placed on the claim filed. The city judge contends that the city ought to have affixed stamps: for $3.00; that the Act of 1877, No. 90, on which the city relies, was-repealed by Act of 1880, No. L36, and that by the latter, stamps foiv $3.00 are required, on a claim between $40 and $60. The Act of 1877 had for its object to authorize the imaging of city suits for licenses and taxes, before courts of justices of the peace uncí to fix the costs in such cases. [845] The Act of. 1880 proposed to fix the fees of clerks, sheriffs and constables in the district and city courts for the parisli of Orleans. The former was a special and the latter is a general statute. It is true, that the Act of 1880 repeals all laws inconsistent with it .and all laws on the same subject-matter, but this repeal does not apply to special laws which are not evidently or irresistibly repugnant to the .general law and not on the same subject-matter. Had the Act of 1880 distinctly stated that, in all cases, including those brought by the city of New Orleans for licenses, the stamps on '.all claims between $40 and $60 shall be $3.00, instead of $1.50, as fixed by anterior laws, the clash would have been so irresistible that the two •acts could not have co-existed. Taken together, the Acts of 1877 and of 1880 simply mean, that, ■except in suits brought by the city of New Orleans, under Act of 1877, ■the stamps in each case shall be affixed as regulated in the Act of 1880. Repeals by implication are not favored by law. Authorities need not be quoted on this question. It is a fact advanced by counsel representing the city, that such has been the nni■form understanding and application of the law as well by city judges as by tbe Civil District Court in the exercise of its appellate jurisdiction over such city courts, and this statement is not contradicted. This Court has already held, that laws anterior to first Monday in August, 1880, relative to justices of the peace, and which were not «1 early repealed, are still in existence and maybe enforced by the city courts created by the Constitution, Art. 135, which are assimilated to such justices. 33 Ann. 146; 37 Ann. 575. Considering, therefore, that the required amount of stamps has been affixed by the city of New Orleans in the suit in question, It is ordered and decreed that a peremptory mandamus issue to the judge of the Second City Court directing him to sign and issue the preliminary process in the suit mentioned in this proceeding, brought by the city of New Orleans against A. Chiapella, No. 71, of the docket of his court.