City of New Orleans v. Holmes

13 La. Ann. 502

• Court: Supreme Court of Louisiana
• Decided: December 15, 1858
• Status: Published

Opinions

Oole, J.

On the 20th March, 1858, the Legislature passed “ an Act relative to judicial mortgages against the city of New Orleans,” which provides :—

1. Whenever the city of New Orleans shall apply to the Recorder of Mortgages of said city, for certificates of mortgages recorded against the city, that it shall be the duty of the Recorder to mention in such certificate only special mortgages which may have been granted by the city, and to omit all judicial mortgages arising from the inscription of the judgments rendered against the city and recorded in the mortgage office.

2. That hereafter no inscription of a judgment reiidgred against the city of New Orleans shall operate as a judicial mortgage against any property of the city.

3. That all laws contrary to the provisions of this Act are repealed.

4. That the Act shall take effect from and after its passage.

The city having applied to the Recorder for a certificate, in accordance with this law, he refused to accord the same.

On motion of the Oity Attorney, the District Court ordered the Recorder to show cause why a writ of mandamus should not issue, directing him to grant the city a mortgage certificate, conformably to the provisions of the first section of the above-mentioned Act.

Upon a hearing, the rule nisi was made absolute; and the mandamus was ordered to issue, from which judgment the Recorder has appealed.

Appellant has made two points in this court, on which he relies for a reversal of the judgment.

1. “ The statute sought to be enforced had not been promulgated at the date of the rule.”

It is in the power of the Legislature to make a' law take effect from its passage.

There is nothing in the Constitution of the State, which requires a fixed time to elapse, after the enactment of a statute, before it can take effect.

The Legislature has adopted a general rule as to the time that must expire after publication, before a statute can be deemed to be promulgated, and to have the force of law.

The same power that created the rule can make the exception.

2. “ That the statute is unconstitutional, null and .void, and impairs the obligation of contracts.”

There is nothing unconstitutional in the provision, that no inscription of a judgment against the city shall operate as a judicial mortgage, and it does not impair the obligation of contracts.

The judicial mortgage resulting from the inscription of a judgment is no part of the contract upon which the judgment was based.

Judicial mortgages are the mere creations of the law.

Judgment affii’med with costs.