« ForrigeFortsett »
contract, such purchase creates no assumption of
Nor have the Godberry brothers, since the
Court of the United States for the Eastern District of Louisiana in favor of defendant in an action to recover the amount of certain warrants issued by drainage commissioners. Affirmed.
Statement by Mr. Justice Brewer:
did not affect the substantial rights of the APPEAL from a judgment of the Circuit party complaining. In Copeland v. Labatut, 6 La. Ann. 61, the court said: "The peti tion contains no allegation and the record no proof of any injury having been sustained by the plaintiff, in consequence of the informalities alleged; and no offer on the part of the plaintiff to warrant that the property, if resold, would bring a higher price than it did before. Under the rule which we have found it necessary to adopt, those omissions would prevent us from disturbing the judgment, even if the informalities were much more material than they actually are. So, also, in Mullen v. Harding, 12 La. Ann. 271, 272: "Unless the plaintiffs can show that they have suffered injury by the informalities complained of, they ought not to be permitted to attack the validity of the proceedings." Barret v. Emerson, 8 La. Ann. 503, 504; Stockton v. Downey, 6 La. Ann. 581, 585; Coiron v. Millaudon, 3 La. Ann. 668; Desplate v. St. Martin, 17 La. Ann. 91, 92; Seawell v. Payne, 5 La. Ann. 260. Decree affirmed.
On March 18, 1858, the State of Louisiana passed an Act to levee, drain and reclaim certain lands situate in the Parishes of Orleans and Jefferson, comprising the Cities of New Orleans, Jefferson and Carrollton, the whole area thereof being 26,026 acres. These lands were separated into three districts, entitled draining districts. To carry this Act into effect a board of commissioners was appointed for each district. They were given full power to do the work, each in its district. Payment was provided for in this way: The commissioners were to prepare a plan of the district to be drained, showing the work to be done, the subdivision of the ground into lots, blocks, etc., with the names of the several owners thereof, and to deposit such plans in the office of the recorder of mortgages in the parish in which the lands were situated. After publication the several district courts within whose jurisdic
 JAMES WALLACE PEAKE ET AL., Appts., tion the lands to be drained were situated
A city has no general powers of donation, and
were directed to decree that each portion of
demand thereof. The decree was to be record-
providing a summary remedy for the collec- | of the Act, and held in trust for the payment
On March 2, 1869, an Act was passed to repeal the laws creating the draining dis tricts, and turning over to the mayors of the Cities of New Orleans, Jefferson and Carrollton, and to the police jury of the Parish of Jefferson, the control of the work and the possession of the property. Nothing seems to have been done under this Act, and it is significant only as a declaration of the Legislature of the failure of the boards theretofore created under prior statutes. On March 16, 1870, an Act was passed uniting the Cities of New Orleans and Jefferson into one citythe City of New Orleans.
On February 24, 1871, the Legislature passed an Act entitled "An Act to Provide for the Drainage of New Orleans." This Act empowered the Mississippi and Mexican Gulf Ship Canal Company to excavate draining canals and build protection levees within the corporate limits of New Orleans and Carrollton. The location of these levees and canals, whether large or small, was to be designated by the board of administrators of New Orleans, and all lands to be acquired for such purposes were to be held by such board for the benefit of that City. To provide funds for paying for this work, all property and rights acquired and held under prior statutes, by drainage commissioners or others, for the purposes of carrying into effect the drainage system, including therein real estate, plans, books and all uncollected assessments, were transferred to the board of administrators of the City of New Orleans; and all assessments theretofore made were confirmed, and in addition the board was authorized to make an assessment of two mills per superficial foot upon the lands within the draining districts. The Statute also provided that all moneys so collected should be placed to the credit of the Mississippi and Mexican Gulf Ship Canal Company, and held as funds to be applied only for the drainage in accordance with the provisions
ment that "the whole work ought not to cost
On April 26, 1872, an Act was passed by
revenues proper of 1872, and for excavations and levees, drainage machinery and revetments authorized by law or required for the protection of the City from overflow or inundation, the City may issue from time to time, as they may be required, bonds of the denominations of five hundred and one thousand dollars, having fifty years to run, and bearing seven per cent interest, principal and interest payable in gold in New York and New Orleans, and at any other points that the council may designate, with quarterly coupons, and that the bonds thus issued shall be called the new consolidated debt of New Orleans. No bonds shall be issued but by authority of the council, nor for a lower rate than ninety cents on the dollar. All issued for excavations and levees authorized by Act No. 30 of 1871, or by Drainage Laws previously enacted, shall be marked 'Drainage Series, and all taxes collected for drainage, and not required for the payment of drainage warrants, shall be devoted to the purchase from the lowest bidder of bonds issued for drainage, no bid to be accepted above par, and the right reserved to the council to reject all unsatisfactory bids."
The canal company entered upon its work, but, becoming embarrassed, on May 22, 1872, assigned all its rights to Warren Van Norden. By Statute of March 23, 1874, the City of Carrollton was annexed to the City of New Orleans, so that the whole drainage district came within the limits of the latter City. The canal company, or its assignee, proceeded with the work, continuing it from July 21, 1871, to May 26, 1876. By January 1, 1875, the cost of the work performed amounted to $1,713,635.35. During that time the city officials issued drainage warrants to the amount of $1,422, 263.69, and the holders of the warrants exchanged them for bonds indorsed "New consolidated gold bonds, drainage series," at ninety cents on the dollar. On January 1, 1875, by Amendment to the Constitution of the State, the City of New Orleans was forbidden to increase its municipal debt, in any manner or form, or under any pretext. This Amendment in terms allowed the exchange of old for new bonds, and permitted the issue of drainage warrants, payable only from drainage taxes, and not otherwise. On February 24, 1876, an Act of the Legislature was passed authorizing the purchase by the City from the canal company and its assignee of all their rights, under prior statutes, and all tools, implements and machinery in their possession or belonging to them, and the payment for the same in drainage warrants of the same character and payable in the same way as those provided in the Act of 1871. At that time the work done by the company and its as signee amounted to $2,242,514.78. On June 7, 1876, the City of New Orleans purchased, as authorized, the rights and property above described, the consideration for the same being three hundred thousand dollars in drainage warrants. Little, if any, work was done thereafter by the City, and the abandonment of the work resulted in largely destroying the value of that which had been done, the rusting and decay of the machinery and tools, 139 U.S. U. S., Book 35.
and the inundation and overflow of the por. tions of the lands attempted to be drained. The complainant, being a bona fide holder of some of the warrants issued to the canal company after the passage of this Constitutional Amendment above referred to, commenced his action at law and recovered a judgment, which reads as follows: "It is ordered, adjudged and decreed that the plaintiff, James Wallace Peake, do have and recover of and from the defendant, the City of New Orleans, as provided by Act No. 30 of 1871, as successor of the drainage commissioners established under Acts 165 of 1858 and 191 of 1859, and the various Acts of the Legislature of Louisiana supplementary thereto and amendatory thereof, the sum of six thousand dollars ($6,000) with eight per cent interest thereon from July 9, 1875, and costs of suit, both the sum recovered and costs of suit to be paid out of said drainage fund."
Thereafter this bill was filed in behalf of himself, as well as all other parties interested.
Messrs. Grover Cleveland, Richard De Gray and Thos. J. Semmes for appellants. Mr. Carleton Hunt for appellee.
Mr. Justice Brewer delivered the opinion  of the court:
The bill in equity in this case was based on the judgment at law. That judgment determined the direct liabilities between the parties. It absolved the defendant from any primary obligation of debtor to creditor. It left it chargeable only as trustee of a fund out of which plaintiff's claim was to be paid. It was like a judgment, which in fact against an estate is nominally entered against the administrator thereof, to be satisfied out of the property of the estate, and not out of the individual property of the administrator. The propriety of this judgment has not been questioned. No proceeding for review or reversal has been instituted. It has been accepted by the complainant as a correct adjudication of the rights between the parties; and, in passing, it may be observed that its adjudication of rights was unquestionably correct. The scope of the entire legislation, from its inception in 1858 to its close in 1872, was local improvements for the benefit of adjacent property, with payment only through special assessments; and did not contemplate a work of general benefit, whose expense was chargeable to the municipality at large. The legislation of 1858, 1859 and 1861, under which the work was commenced, ignored the municipality entirely. It subdivided an area, of which the City was a portion, into draining dis tricts, and cast upon a board of commissioneis for each draining district the responsi bility of the work and the assessments. The scheme was one of special assessments, as distinguished from municipal tax for general benefits. The distinction between the two is obvious and well recognized. It is stated by Cooley in his work on Taxation, page  416: "The general levy of taxes is understood to exact contributions in return for the
general benefits of government, and it prom- of New Orleans may be considered a trustee,
While the Acts of 1871 and 1872 bring the
Before considering these matters, it should be premised that to the extent that the City
April 27, 1871, was not within at least the
tricts placed upon the City only a limited phis v. Brown, 87 U. S. 20 Wall. 289 [22:
264]. Whatever obligations were assumed
The significance of these observations is clear. There is wide divergence in the authorities as to the circumstances under which the liability of a city to a contractor for local improvements arises in case of the nonpayment of the special assessments. Into that field of inquiry we do not care to enter. See 1 Dillon on Municipal Corporations, 4th edition, sections 481 and following, and notes. If ever there was a case in which the responsibility of a city should be narrowed, this is one. By the legislation of the State, it was denuded of all freedom of action. It had no choice of contractor or price. Neither the property to be taxed, nor the means or method of collecting the assessments, was intrusted to its discretion. This is not a case in which there was a failure on the part of the legislative body, the city council, to prescribe and provide sufficient machinery for the collection of assessments. No superintendence of the financial department, whether as to the property to be assessed, the amount of the assessment or the collection thereof, was intrusted to the municipality. All this financial power was placed directly, by state action, without its consent, in one of its official boards. Thus denuded of freedom of action, it may properly insist upon the narrowest limits of responsibility. If the financial duty was devolved, without its Further than that, we are not limited to consent, upon one of its administrative mere matters of inference. It appears affirmboards, and such board was derelict of duty,atively that the City provided an office and it may properly say to a complaining party, officers for the collection of these taxes; "Your remedy was mandamus, to compel and, according to the testimony given by the prompt and efficient action by that board." assignee of the canal company, the officer in In respect to a kindred question, the neglect charge was diligent in his efforts to collect of the city council, Judge Dillon pertinently the tax. It appears, also, that the canal asks, "Why should all be taxed for the fail- company had an agent to look after this mature of the council to do its duty in a case ter of collection of taxes, who offered all where the contractor has a plain remedy, by reasonable inducements to secure their paymandamus, to compel the council to make ment. Again, the assignee of the canal comthe necessary assessment, and proceed in the pany, pursuing the remedy which was open collection thereof with the requisite dili- to him, of mandamus to compel the seizure  gence?" Section 482, 1 Dillon on Municipal and sale, under proper writs, of the real esCorporations, fourth edition. If that sug- tate subject to these assessments for the paygestion be pertinent where the dereliction is ment of certain warrants, secured an order that of the city council, the legislative as- of the court therefor. Fifteen hundred and sembly of a city, the body charged primarily seventy-one writs were issued in obedience with the duty of making suitable provision thereto, and the gross proceeds of these writs for the discharge of all municipal obliga. was $32,466.69. It needs not the supporting tions, how much more is it true when such testimony of the agent of such assignee to general legislative assembly is without power induce the belief that the most available and charged with no duty, and full responsi- property was that pursued by these proceedbility rests with a separate administrative ings. Still further, the efforts to collect were board. The contractor is specially interested largely hindered by two decisions of the in the full and prompt discharge of its duty Supreme Court of Louisiana,-one, in the by this administrative board. The remedy case of The Succession of Irwin, 33 La. Ann. of mandamus is open to him to compel its 63, by which practically the creation of the action. On what principle of right and fourth drainage district, and the assessments justice can he ignore this remedy and charge therein, were declared null and void; and the municipality and burden all the tax- the other, in the case of Davidson v. New payers of the City? Orleans, 34 La. Ann. 170, in which it was ruled "that a judgment for a drainage tax will not be enforced when it is shown that the property, far from being benefited, was injured by the alleged drainage.'
But supposing the dereliction of this board 54] of administrators was an omission on the part of the City, what then, under the facts of this case, would be the measure of liability? It will be noticed that neither expressly When to all these is added the fact that nor by implication was there any guaranty large portions of these draining districts of payment, as appeared in the case of Mem- I were swamp and overflowed lands; when one