Police Jury of Jefferson v. United States ex rel. Fisk

PARDEE, Circuit Judge, (after stating the facts as above.) The assignments of error present two questions, the disposition of which will dispose of the case. The police jury of the parish of Jefferson, appellant, contended in the court below that it was a different legal being from the police jury of the parish of Jefferson, Left Bank, and, as shown by the third bill of exceptions in the record, on the trial of the case, requested the court to charge the jury “that the present police jury of the ‘parish of Jefferson, defendant in this cause, is a different legal being from the police jury of the parish of Jefferson, Left Bank, which is alleged by the relator to' have made the contracts with him in 1871, and that under the Act No. 92 of 1884, creating the present parish of Jefferson, and especially the provisions of the sixth section, the relator is not entitled to a mandamus against the present respondents,” which charge, as requested, the court refused. A similar question was presented upon similar facts in the case of U. S. v. Port of Mobile, 12 Fed. 768, and it was there held that “the liability of the port of Mobile for the relator’s judgment is settled by the judgment. All questions in the case back of that judgment are res judicata. See U. S. v. New Orleans, 98 U. S. 395; Wolff v. New Orleans, 103 U. S. 360.” This authority ought to settle the matter, but, as between the parties here, the question is conclusively settled by the decision of the supreme court of the state of Louisiana in State v. Police Jury of Jefferson, 39 La. Ann. 979, 3 South. 88, where precisely the same question now made was adjudicated against the plaintiff in error. The next question presented in different forms by several bills of exceptions and in different assignments of error is how far the demand of the relator is res judicata between the parties, and this in relation to the force and effect of the restrictions upon municipal taxation found in the constitution of 1879--80, in regard to the matter of fact whether the parish of Jefferson, Left Bank, had ex [253] hausted the limit of municipal taxation for the years 1871 to 1877, inclusive, and also as to whether the rate of municipal taxation allowed by law for those years was 4 milis or 14¿ mills. The supreme court of the United States decided between these same parties that Fisk’s claims against the parish of Jefferson, Left Bank, growing out of his employment as parish attorney, were based on a contract with the parish, and that, thereunder, Fisk had a right to look to the rate of taxation allowed by law during the term of his employment; and, further, that the provision of the constitution of 1879-80, restricting the limit of municipal taxation, so far as it was in conflict with the acts in force during Fisk’s employment, and as applied to the contract of Fisk, impaired its obligation, by destroying the remedy, pro tanto. The supreme court of the state of Louisiana, in State ex rel. Fisk v. Police Jury, 38 La. Ann. 505, decided between these same parties that, as to the judgments embraced in the first mandamus suit, (as set forth in the statement of facts,) the limit of taxation for parochial purposes in the parish of Jefferson, Left Bank, during the years 1871 to 1877, inclusive, was as follows: For 1871, -; for 1872, 21| mills; for 1873 to 1876, inclusive, 14| mills; for 1877, 13 mills, — and that during that period of time the rate of taxes levied by the police jury was 10 mills on the dollar, with the exception of 1876, when the rate was increased to 14⅛ mills. And the same court, in the same case, gave judgment for the relator, Fisk, directing that a tax of 6 mills be levied, assessed, and collected, and applied to relator’s judgments described in the case, and fully reserving relator’s rights to an additional tax, if 6 mills should prove inadequate. In the case of Fisk v. Police Jury, 38 La. Ann. 508, which was an appeal from the judgment of the district court on a rule for a mandamus to compel the levy of a tax to pay certain judgments described in the second suit mentioned in the statement, of facts, the supreme court of Louisiana held and decided that, irrespective of the restrictive provisions in relation to municipal taxation found in the constitution of 1879-80, the relator was not entitled to the relief prayed for, because of defects in his form of proceeding, but reserved to him his right to enforce his judgments by other and further proceedings, as he might be entitled to. From this statement, it appears, in regard to all the judgments included in the first-mentioned suit for a mandamus, all the questions arising between the parties as to the effect of the constitution of 1879-80 on Fisk’s demands; as to the limit of municipal taxation in the parish of Jefferson, Left Bank, for the years 3871 to 1877, inclusive, and with regard to whether that limit had been reached, and the power of taxation exhausted, — weie all adjudicated and settled by courts of the highest authority, and that the same are now res judicata, and in no respect open for further dispute between the parties. It further appears that as to the other judgments of the relator, Fisk, against the police jury of the parish of Jefferson, Left Bank, although now merged in a judgment against the police jury of the parish of Jefferson, there has been no adjudication concluding the police jury of the parish of Jefferson in any other matter than as to [254] .the application of the restrictive provisions of the constitution of 1879-80. On the trial in the conrt below the court ruled that the admissions of the defendants and the judgment of the supreme court of the United States and of the supreme court of Louisiana, above referred to, were decisive of the cause in favor of the relator, and directed a verdict accordingly. In our view of the case, this ruling was incorrect, so far as it included the whole judgment of the relator against the police jury of the parish of Jefferson. The verdict in favor of relator should have been restricted to that part of the judgment of the circuit court based upon the judgment claims included in the-first suit for mandamus, (described in the statement of facts,) and confirmed by the supreme court of the state in 38 La. Ann. 505. As the judgment claims of Fisk are recited in detail in the judgment of the court below, the error is one which can be corrected by amendments, without awarding a venire de novo. It is therefore ordered, adjudged, and decreed that the judgment of the circuit court be, and the same is hereby, amended by striking out the fifth claim, of $482.10, with 8 per cent, interest thereon from March 1, 1875, until paid, and $8.50, clerk’s and sheriff’s costs, and the sixth claim, for $358.22, with 5 per cent, interest from March 1, 1875, and $5.95, clerk’s costs, and $5.75, sheriff’s costs, and that otherwise the judgme.nt of the circuit court be, and the same is hereby, affirmed. It is further ordered, adjudged, and decreed that the defendant in error pay the costs of this court.