*668Dissenting Opinion.
Watkins, J.Relarors are plaintiffs in the suit entitled Board of Administrators of the Charity Hospital vs. Henry Galt, master and owner of Steamship Lucy P. Miller, instituted in the First City Court of New Orleans, under the provisions of R. S. Sec. 2705, for the recovery of the fine of $100, specified therein, against defendants; and the enforcement of this privilege on the vessel. Said master was regularly cited, and the vessel sequestered. Dilatory and declinatory exceptions were filed and overruled.
In answer, defendant urges the implied repeal of R. S. 2705 by Act 63 of 1877; and that, if unrepealed, the same is unconstitutional. Further, that the provisions of that law are in restraint of commerce and trade, and, therefore, in violation of the Constitution of the United States. That “ section of the Revised Statutes, under which the plaintiffs claim, inflicts a penalty on respondent, in an ex parte proceeding, and that the proceeding to mulct respondent, could only be mst/ituted hy the State of Louisiana, or m her name and behalf.
Finally, he denies that plaintiffs have any right “to the full amount herein claimed;” and disavow any indebtedness. Judgment was contradictorily rendered in favor of plaintiffs for amount claimed, with recognition of privilege on vessel. Citation of appeal was served on September 10, 1885.
The cause was submitted, in the court of the respondent, on December 21, 1885.
In the record there is an agreement of counsel, in which are admitted the following facts, viz :
1st. That a duly licensed branch pilot did offer his services to the master..
2d. That said offer was declined.
3d. That said demand was made ou pilotage grounds, at time stated.
4th. That the master availed himself of the services of another person, who was not a licensed branch pilot, for carrying his vessel out to sea.”
Those are all the matters of fact essential to a recovery under the statute, quoted in opinion. Upon those pleadings and facts the case was examined; and this respondent’s decree recites that “for reasons assigned in the written opinion of the court, on this day delivered and filed,” the judgment appealed from is annulled and reversed, etc.
From an examination of the ivritten opinion, referred to in the judgment of respondent’s court, and made part of his return, it appears *669that he simply decided that, in his opinion, the “ ground of defense ” to the effect that “ the provisions of the law relied on by plaintiffs, inflict a penalty in the nature of a fine, which is not recoverable in this form of proceeding,” is well taken.
What are the reasons assigned in the respondent’s written opinion, above referred to, and made part of his return f He says: “If these propositions were correct in the case cited — and I imagine they will not be disputed — a fortiori, are they correct in the case at bar, since here the. penalty is imposed by law, for a violation of law, and the liability therefor can be. ascertained and fixed only through the medium of a prosecution by the State, and. not at the suit, in a civil court, of the third person named, as the beneficiary of the fine. * * * * * * “ The law is essentially penal in its character, and, if tli penalty of the forfeit can be enforced in this court, at the suit of the plaintiffs, there could be no reason why the penalty of imprisonment might not be enforced in the same way, if the statute had contained that word.
“ For these reasons, it is ordered, adjudged and decreed that the judgment appealed from be reversed, and plaintiff’s demands rejected, with costs of both courts.”
What is the complaint made by relator’s of respondent’s proceed-* iugs?
That he refused to take cognizance of the merits of said causo, and held and decided that the statute invoked imposed apenalty, and that liability therefor could “ be ascertained and fixed only through the medium of -n prosecution by the State,” and could not be recovered in a civil court.”
They claim that, in so deciding, respondent was guilty of a denial of justice, because the civil courts have jurisdiction of such suits; and he should have proceeded to try and decide the cause on its merits.
The statute provides that, under the circumstances recited “the said vessel, hei captain and owners, shall forfeit the sum of $100, with privilege on the vessel, to be recovered before any court of competent jitirisdiction, in the name of the Oharity Hospital of New Orleans, for the benefit of the hospital.”
It is too obvious to require the aid of argument that courts of civil jurisdiction only could enforce the privilege on the vessel; and same could only be enforced by suit.
Here we have under consideration no penalty, in the sense of respondent’s opinion.
The words of the statute are: “ The vessel, her captain and owners, shall/br/éif the sum of $100, with privilege on the vessel,” etc. It is *670recoverable “in the name of tlie Clmritv Hospital of New Orleans, for the benefit of the hospital.”
That is a State institution, which is fostered by it and furnished with aliment. It is a charity hospital in fact, as in name. The Legislature had the right to give this particular destination to the funds when recovered, as it had the undeniable right to create liability for them. It had equally a right to confer upon relators the power to sue for their recovery, as it did to secure their enforcement by privilege on the vessel.
T do not think there is any reasonable doubt of relators’ right to relief by maudamus. As I have shown, the respondent’s court was vested with undoubted jurisdiction to try and decide the merits of the controversy on appeal; and the first City Court had undoubted jurisdiction in the first instance.
Having jurisdiction of the cause, it was the plain constitutional duty of respondent to exercise it and decide it on its merits. There was no contention as to the facts. They were admitted. Resi>ondent’s failure to try and decide said cause on its merits, under the circumstances detailed, was, in my opinion, practically a denial of justice, for which there could be no other adequate remedy than mandamus.
“The writ of mandamus is expressly authorized for the purpose of directing a court of inferior jurisdiction to perform some certain act belonging to the place or quality with which it is clothed, which is the precise relief sought here.” C. P. 829; 32 Ann. 774, State ex rel. Cobb & Gunby vs. Judges; 33 Ann. 358, State ex rel. Harper vs. Judges.
In State ex rel. Dupereir vs. Judge, 35 Ann. 736, this Court say: “A mandamus lies to compel the trial of a cause, when the judge has illegally refused to go into the merits of the action, upon the erroneous construction. of some question of practice preliminary to whole case.” High’s Ex. Legal Rein., secs. 150, 151.
Mandamus “maybe directed more particularly to judges of inferior courts, commanding to render justice,” etc. C. P. 837.
It matters not that respondent was only exercising appellate jurisdiction; it was the same jurisdiction that had been exercised by the court of first instance in a different way.
The respondent failed to decide, on its merits, a cause of which he had undoubted jurisdiction.
The effect of respondents decree was to oust the jurisdiction of the first City Court, and leave the relators without remedy. That was a denial of justice, which should be remedied by mandamus.