of the goods, which, if fairly made, would entitle the plaintiff to the price. This would support either the special or the common counts.

The defendant's evidence tends to show that the order for the goods was induced by a representation of the plaintiff's agent that a gas company was about to order such a plant, and install it in that territory, if the defendant did not. It is not found upon the evidence, that the agent made any statement in that behalf which he did not believe to be substantially true. There is no claim but that the goods were of the description and quality ordered. There is not, therefore, any such fraud shown as would invalidate the sale. The plaintiff appears to be entitled to judgment for the amount of the goods, at the specified price, with interest after 30 days from a reasonable time to make the test. This is found to be August 1, 1886. The amount of price is $3,925.75. The interest from that date to July 19, 1887, the day of entering the judgment, is $227.59. The whole is $4,153.34.

Judgment for plaintiff for $4,153.34.

UNITED STATES ex rel. LOUISIANA CONST. Co. v. CITY OF NEW ORLEANS.1

(Circuit Court, E. D. Louisiana. January 11, 1887.)

1. MUNICIPAL CORPORATION-JUDGMENT AGAINST REGISTRATION.

A judgment against the city of New Orleans, reversible only in an appellate court, and not affected by any appeal, either suspensive or devolutive, was within the two years allowed by the United States statute for writ of error, capable of registration under the act of the legislature of Louisiana, No. 5 of 1870, extra session.

2. SAME-CITY OF NEW ORLEANS-ITS ALIMONY.

The duty of providing for the alimony of the city is lodged in the discretion of the common council, in the constitutional and legal exercise of which the courts may not interfere.

Application for a Writ of Mandamus to compel the common council to include relator's judgment within the budget for this year.

E. Howard McCaleb, for relator.

W. H. Rogers, City Atty., for respondent.

BILLINGS, J. Two points of objection are made by the attorney for the city.

1. That relator's judgment is not final and executory. This objection involves the construction of the act known as No. 5 of the acts of the legislature of Louisiana in 1870. Up to the time of the passage of this act writs of fieri facias ran from the state courts against the city of New Orleans. This act abolished that writ, and substituted therefor the registration of the judgment with the comptroller of the city, and payment

'Reported by Joseph P. Hornor, Esq., of the New Orleans bar.

"

by appropriation by the common council in the order of registration. Section 1 takes from creditors the right to resort to mandamus upon the fiscal officers of the city before judgment. Section 2 prohibits the issuance of executions (writs of fieri facias) to enforce the payment of any final judgment against the city "condemning said corporation to pay any sum of money," and provides for their registration. Section 3 provides for the payment of judgments against the city which are "final and executory."

This statute, it is to be observed, took its place among the statutes of the state providing for the payment of money judgments without disturbing or changing the form or enforceability of judgments. It was applicable only to cases in which the city was the debtor. It left judg ments in city cases as they had been, and as all other judgments remained, subject to suspensive and devolutive appeals. Those judgments, which had been final and executory continued so, city judgments as well as all others. There was as to city judgments merely the substitution of one particular means of enforcement or collection for another. The question presented here is whether a judgment reversible only in an appellate court, and not affected by any appeal, either suspensive or devolutive, was, within the two years allowed by the United States statute for writ of error, capable of registration. That an execution could have been issued on such a judgment is not denied. It follows that it equally carries with it the right of registration.

In Arrowsmith v. Durell, 21 La. Ann. 295, the court holds that even a judgment of the district court in a case which was pending in the appellate court upon a devolutive appeal, and while so pending, had become prescribed. The court in its reasoning meets the question of finality, and while it says such a judgment "is not final in the largest sense of a final judgment," i. e., Civil Code, art. 3522, to maintain a plea of res judicata, that nevertheless it is final for the purpose of the running of prescription against it. This is the adoption of the same meaning as is attached to the word "final" in the statutes of congress when they provide that writs of error and appeal may lie from all final judgments of the circuit courts, Rev. St. § 691. It certainly is not necessary to be seriously considered whether a judgment which is of such a character and condition that the legislature has made prescription run against it is not executory in the one solitary mode left by the law for its execution and enforcement. My conclusion, therefore, is that the relator's judgment is, within the meaning of act No. 5 of acts of 1870, final and executory, and was properly registered under that act.

etc.

2. What rights has the relator to having his registered judgment paid through the writ asked? The sole question presented in this part of the case is, has the relator the right to have his judgment paid out of the tax within the 10 mills? There is no question in this case of constitutional law. The question may be stated thus: Can the court usurp the discretion which the legislature of the state has vested in the common council, as to the amount within the 10 mills which they must devote to what is termed the alimony of the city?

Reference was made to the case of Wolff v. New Orleans, 103 U. S. 358. But in that case there was no obstacle coming from a limitation of taxation. The prayer was for a budget or a special tax, and the court maintained a right to a special tax.

In Carondelet Canal Co. v. New Orleans, 30 La. Ann. 129, the supreme court of this state awarded a mandamus to compel the levying of a special tax in the annual budget sufficient to pay relator's and all prior registered judgments. But this case, as I understand it, did not involve any question of limitation of power of taxation, or of controlling the common council in the matter of the government of the city, including provisions for the schools, police, lights, etc., and all the public necessities of civilized communities. But the matter presented here is dealt with, as it arose, in a series of subsequent cases, wherein the court lays down the doctrine that the duty of providing for the alimony of the city is lodged in the discretion of the common council, in the constitutional and legal exercise of which the courts may not interfere.

In Saloy v. City, 33 La. Ann. 79, where there was a right to a special tax, the question was whether a tender of 10 mills by the tax-payer was sufficient. The court at page 89 say that in a former case the court "rejected the idea that such a construction could be placed upon the legislative limitation as to require the judgment tax to be taken out of the 10 mills, and thereby deprive the parish of all means of paying its current expenses.

In Re Isaacson, 36 La. Ann. 56, at page 59, the court says: "This question we have before had occasion to consider, and have held that the making the estimate and appropriation for the necessary expenses of the city was a legislative function on the part of the council, with which the courts could not interfere so long as legal and constitutional provisions and limitations were preserved."

In Marchand v. City, 37 La. Ann. 15, at page 18, the court says: "The duty [the duty of levying a tax to pay registered judgment] we have held, however, is subordinate to the higher and absolute duty of first providing, out of the revenues applicable to that purpose, for the necessary alimony in support of the city." I think these authorities are a well-considered interpretation of the meaning of the legislation upon the point presented, and furnish a clear guidance for this court. The relator is entitled to have his judgment registered and paid in the order of its priority, so soon as the common council can, consistently with the existing constitutional limitation upon taxation, and after providing for the alimony of the city, provide for the payment of the same.

The judgment will be that the common council be required to include this judgment, in its order of priority according to registration, among the fixed liabilities of the city of New Orleans, which the city must provide means to pay, and that after providing for the items of the alimony of the city they appropriate all the balance of the 10-mill tax leviable this year to or towards the payment of said judgment, in its order of priority, and so on, from year to year, till the said judgment is wholly

UNION PAC. Ry. Co. v. DOUGLAS CO.

(Circuit Court, D. Nebraska. 1887.)

PUBLIC LANDS-GRANT TO UNION PACIFIC RAILROAD-SCHOOL LANDS.

It was the evident intention of congress by the act of July 1, 1862, (12 St. U. S. 491,) giving a right of way to the Union Pacific Railroad Company, to grant such right of way through those lands which by surveys should be found to be sections 16 and 36, the school sections which it intended to give to the future state of Nebraska, pursuant to the provisions of the organic act of 1854, (10 St. U. S. 283,) creating the territory of Nebraska.

A. J. Poppleton, for plaintiff.

G. E. Simeral, for defendant.

BREWER, J. The question presented by the demurrer to the answer is this: Was the Union Pacific grant of the right of way operative upon sections 16 and 36, the sections granted for school purposes to the state of Nebraska? In 1854 the organic act (10 St. U. S. 283) creating the territory of Nebraska was passed, in which, by section 16, it is provided "that when the lands within the said territory shall be surveyed under the direction of the government of the United States, preparatory to bringing the same into market, sections numbered 16 and 36 in eachtownship in said territory shall be, and the same are hereby, reserved for the purpose of being applied to schools in said territory, and in the states and territories hereafter to be erected out of the same." The Union Pacific Railroad Company's act, passed July 1, 1862, (12 U. S. St. at Large, 491,) provided, in section 2, "that the right of way through the public lands be, and the same is hereby, granted to said company for the construction of said railroad," etc. These are the only sections that are material to this controversy. The grant to the Union Pacific was later than the reservation for school purposes. But the power of congress over lands of which the fee has not already passed and vested is unquestioned. Frisbie v. Whitney, 9 Wall. 187, in which case the supreme court held that until the title of the pre-emptor had actually vested the power of congress was supreme. See, also, the case of State v. Bachelder, 1 Wall. 109, in which the same doctrine was applied in respect to school sections.

The power of congress, then, being beyond dispute, the single question is as to the intent; and here I am met with the proposition that the term "public lands" has become, by settled construction, descriptive of those lands only which are in no manner reserved for any purpose. The leading case cited in support of this is Wilcox v. Jackson, 13 Pet. 498, in which case is found this language:

"But we go further, and say that, whensoever a tract of land has once been legally appropriated to any purpose, from that moment the land thus appropriated becomes separated from the mass of public lands, and that no subse

quent law or proclamation or sale would be construed to embrace it, or to operate upon it, although no reservation were made of it."

This language, which is very broad, must be construed in reference to the facts of that case; and there it appeared that land had been reserved for military purposes, and it was held that a subsequent act for the sale. of lands in that territory did not operate upon this particular reserved tract. This only shows that, when land has been once reserved, congress will not be presumed to have intended a disposition of it in any other way, unless the intent is clearly expressed. But that does not meet the question in this case; for the act of congress of July 1, 1862, does not purport to grant the fee, but only a right of way. The reserva

tion is not destroyed, but only a limited use placed upon a narrow strip. Now, that congress meant that that right of way should be through all lands over which it had control, is, I think, obvious for several reasons. I notice the principal: First, in the land grant made by this act congress made specific exceptions of lands to which any pre-emption, homestead, or other claim had attached, while the grant of the right of way is absolute and without exception. This distinction is recognized in the case of Railroad Co. v. Baldwin, 103 U. S. 426, in which, after noticing the limitations and exceptions upon the land grant, the court adds these words:

"But the grant of the right of way by the sixth section contains no reservations or exceptions. It is a present absolute grant, subject to no conditions except those necessarily implied; such as that the road shall be constructed and used for the purposes designed. Nor is there anything in the policy of the government with respect to the public lands which would call for any qualifications of the terms. Those lands would not be the less valuable for settlement by a road running through them. On the contrary, their value would be greatly enhanced thereby."

See, also, the case of Railroad Co. v. U. S., 92 U. S. 733, where the same distinction between a land grant and a grant of a right of way is recognized. Further, I observe that the Union Pacific Railroad Company act contemplated a speedy construction of the road. The state of Nebraska was not then admitted to the Union, and there was no certainty when it would be. It is a matter of public history that a large part of the western portion of the then territory was unsurveyed. No one could say in advance where the sixteeenth and thirty-sixth sections would lie. Can it be possible that congress, intending the speedy construction of the road, also contemplated that if, after construction, it should be found by survey that the line constructed ran through the sixteenth or thirty-sixth section, its right of way should cease, and it be deemed a trespasser thereon? Again, no provision is made for condemning the right of way over school sections, nor is it easily to be perceived how, under the statute then in force, proceedings could be had for such condemnation. Still, again, this right of way through school sections has been accepted without challenge for 20 years. This indicates the general understanding, and is significant. These considerations, among others, lead me to the conclusion that, beyond any doubt, congress intended by this act of