Police Jury v. Police Jury

83 So. 250, 145 La. 1053

• Court: Supreme Court of Louisiana
• Decided: June 16, 1917
• Docket: No. 22568
• Status: Published

Opinions

On Motion to Dismiss Appeal.

O’NIELL, J.

The parish of La Salle was created by the Act No. 177 of 1908, embracing the western part of the parish of Catahoula. It was provided in the statute that it should be in full operation and effect on and after the 2d of January, 1910, if approved and ratified by a majority of the qualified electors of the parish of Catahoula'voting at a special election to be held for that purpose in October, 1908. The statute was so ratified and approved, and the government of the new parish went into full operation at the beginning of the .year 1910.

Section 13 of the statute, providing for an apportionment of the revenues and expenses of the old and the new parish, declared that all revenues from taxes and licenses, in the old parish as it formerly existed, for the year 1909, should be applied to the payment of the usual current expenses arising for 'that year, and to the payment of the indebtedness of the old parish of Catahoula due prior to or within the year 1909; and that any balance remaining from the revenues of that or any previous year should be divided equally between the parishes of Catahoula and La Salle, after the amount should be ascertained by, the police juries of the respective parishes. As to any indebtedness for any public improvements, falling due after the 1st of January, 1910, it was provided that the indebtedness should be assumed by the parish in which the public improvement, for which the debt would be due, would then be situated or located.

Under the foregoing provisions of the law, the plaintiff sued and obtained judgment for $3,100, on the allegations, and proof to the satisfaction of the district judge, that the police jury of the old parish of Catahoula, in January, 1909, anticipated and paid a debt of $6,200 represented by two promissory notes of the parish for $3,100 each, due, respectively, on the 1st of April, 1910, and the 1st of April, 1911, for a bridge built across Little river at Jonesville, in the new or remaining parish of Catahoula.

Having rendered and signed the judgment at chambers, as authorized by the Act No. 94 of 1898, the district judge thereupon, without any motion or petition from the defendant, entered an order granting the defendant an appeal to the Supreme Court on condition that the appellant should furnish a bond for $75 for a devolutive appeal, or for the amount required by law for a suspensive appeal. The judgment and order of appeal were signed on the 12th of July, 1916, and the appeal was made returnable on the 8th of August, 1916.

The defendant did not perfect the appeal or accept the order thus granted, but ignoring that order, filed a petition praying for a devolutive appeal, on the 10th of April, 1917. The appellant did not dsk or suggest that the district judge should not require that an appeal bond be furnished, or should grant the appeal without fixing the amount of the bond for the devolutive appeal. The prayer was merely that a devolutive appeal be granted, returnable to the Supreme Court, “all to be done in accordance with law,” etc. In the order for the devolutive appeal, the district judge, being of the opinion that the Act No. 173 of 1902 exempted police juries from the requirement to furnish an appeal bond, did not fix the amount of a bond for the appeal, but expressly declared that the appellant was not required to give an appeal bond. The appellant filed the record in this court before the return day, but did not furnish an appeal bond.

The appellee has moved to have the appeal dismissed, on the ground's: (1) That the appellant is not exempt from the obligation of appellants generally to furnish a bond and security, for an amount to be fixed by the judge granting the order, for a devolutive appeal; and in the alternative (2) that, by failing to file the record in this court within the time fixed in the first order of appeal, the defendant abandoned the appeal and had no right to another order of appeal.

[1] If the law required a police jury to furnish a bond for an appeal, it was the duty of the district judge to fix the amount of the bond for a devolutive appeal, because it is not fixed or determinable by any law. The appellant complied with the order granting the appeal without bond. Hence, if it was an error to dispense with the appeal bond, it was the error of the judge and not of the appellant.

We are of the opinion, however, that the district judge was correct in his interpretation of the Act No. 173 of 1902. It provides that certain state and municipal boards and commissions named in the statute “and other state, parish and municipal boards or commissions exercising public power or administering public functions shall not be required to furnish any bond whether of appeal or otherwise in any judicial proceedings instituted either by or against said boards or commissions.” A police jury is, within the plain meaning and intent of the law, a parish board or commission exercising public power and administering public functions. In fact, those public officials, called police “jurors” in this state, are called county “commissioners” in other states. We have no doubt that the Legislature meant to include police juries in the general terms of the statute referring to all public administrative boards or commissions. And we hold that the language of the statute does include them.

[2] Referring to the other cause for which the appellee moves to dismiss the appeal, it is plain that, as the law did not require the appellant to furnish a bond for an appeal, the appellant did not, by failing or declining to give the bond required in the first order of appeal, abandon or waive the right to an order of appeal without bond. On the other hand, if the law had required the police jury to furnish the bond for an appeal, the appeal first granted was not perfected, and therefore the district court was not divested of jurisdiction to grant another order of appeal.

The motion to dismiss the appeal is overruled.