contract, such purchase creates no assumption of
his debts.

[No. 852.]

Nor have the Godberry brothers, since the
sale, made complaint of unfairness in it.
Under such circumstances, it not appearing
that any real injury has been done to the Argued Oct. 27, 28, 29, 1890. Decided March 9,
plaintiff, the sale should not be disturbed
because of omissions or informalities that


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[197] 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

[342] JAMES WALLACE PEAKE ET AL., Appts., tion the lands to be drained were situated


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A city has no general powers of donation, and
its contribution to a fund can never be con-
sidered as a donation when there is an indebted
ness to that fund to be discharged by it.
5. A municipality may, with the consent of its
contractor, at any time abandon contracted
work. Such abandonment does not make the
city liable for the debts of the contractor.
6. When a city purchases from its contractor his
property invested, and his rights existing in the

were directed to decree that each portion of
the property situated within the limits men-
tioned in the notices is subject to a first-mort-
gage lien and privilege in favor of such board
of commissioners for such amount as might
be assessed upon the property for its propor-
tion of the cost of draining, with interest
thereon at six per centum per annum from


demand thereof. The decree was to be record-
ed in the office of the recorder of mortgages,
and the lien and privilege mentioned therein
were declared to "take precedence over all
mortgages, liens and privileges whatsoever, [344]
whether tacit, conventional, legal or judicial,
and shall attach to said property until the
amount assessed and the interest thereon shall
have been paid in full." The commissioners
were thereafter to levy such uniform assess-
ments upon the superficial or square foot with-
in the drainage section as might be necessary
for payment of the work. This Statute also
provided that, on nonpayment of the assess-
ment, judgment might be recovered therefor
in any court of competent jurisdiction, and
the land so assessed sold according to law.
An appropriation of eighty-one thousand
dollars of the swamp-land fund was made by
the Legislature, for the purpose of aiding in
carrying out the purposes of this Statute.
By a supplementary Statute, of March 17,
1859, the several boards of commissioners
were authorized to issue bonds, to be desig-
nated draining bonds. By these bonds it was
contemplated that money should be raised at
once for the payment of the work, in antici-
pation of the collection of the assessments.
On March 1, 1861, another Statute was passed,


providing a summary remedy for the collec- | of the Act, and held in trust for the payment
tion of these assessments. This Statute de- of such company, and ultimately for the
clared that the homologation of the tableaux benefit of the City of New Orleans should
of assessment should operate as a judgment the same not be required for the purposes of
against the property assessed, and the owners drainage. The Act also provided the price
thereof, on which execution might issue as that should be paid-fifty cents per cubic
on judgments rendered in the ordinary mode yard-for the work to be done. In pursuance
of proceeding. Some work was done under of this Act, W. H. Bell, the surveyor of the
these Statutes, by the direction of the com- City of New Orleans, devised a scheme for
missioners, but the exact amount is not dis- draining the lands, and prepared a plan of
closed, though evidently but an inconsider- the work, which was entitled Chart of
able fragment of that which was contem- draining sections of New Orleans, showing [346]
plated. The boards of commissioners made present canals with proposed protection levees
plans and assessments in their several dis- and reservoir canals, May, 1872." He made
tricts, as required. The assessment rolls an estimate of the cost which, after itemiz-
were approved and homologated, and judging different portions, closed with the state-
ments rendered against the parcels of land
and the owners thereof as the same were de-
scribed in the assessment rolls. As the as-
sessment was to be upon the superficial foot,
obviously, within the limits of the City of
New Orleans, some portion of the assessment
would rest upon the streets and other public
grounds, and in the tableaux the City of
New Orleans was named as the owner thereof,
and judgments were rendered against it, as
owner, for sums amounting in the several
districts to $719,926.63.

On March 2, 1869, an Act was passed to repeal the laws creating the draining dis[345] 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
over three million of dollars." On April 21,
1871, the city council of the City of New
Orleans passed an ordinance (Ordinance No.
814) which recited that the provisions of the
Act of 1871 made it mandatory upon the
council to provide for an extensive system of
drainage, and to recognize the claims and
accounts of and make settlements with the
Mississippi and Mexican Gulf Ship Canal
Company for performing such work; and
that the city council deemed certain portions
of said Act unconstitutional as depriving it
of its proper control of the drainage system,
and of its right voluntarily to contract for
the work and agree on the price therefor;
yet, in view of the importance of the work
and the needs of the City, it ordained that
"all matters appertaining to drainage, and
the protection of the City from inundation,
be placed under the immediate charge of the
administrator of improvements, aided by the
city surveyor," and directed a plan to be
made, etc., of the work. Section 4 reads as
follows: "The City shall issue warrants for
the payment of the work as required by the
Act of the Legislature, and in case of non-
realization or non-collection of assets pro-
vided for therein, the same to bear eight per
cent per annum interest; the said warrants
to be issued with the understanding, to be
inscribed therein or indorsed thereon, that
they shall not be enforceable by suit and
judgment, but if not paid within one year
out of the proceeds of the draining tax and
assets they shall be fundable in bonds of the
City, bearing eight per cent interest, payable
semi-annually, having ten years to run, and
with due provision for retiring the same, and
securing the punctual payment of interest
and gradual extinction of the principal. The
City shall have power to sell said bonds or
give the same in payment of the work per-
formed, but no sale or exchange shall be
made at a price less than eighty cents on the
dollar, exclusive of interest, and any holder [347]
of any fundable warrant, after thirty days'
notice, if not paid in money, may demand
bonds for the same at eighty cents on the

On April 26, 1872, an Act was passed by
the Legislature making provisions for the
debt of the City of New Orleans. Section
13 reads as follows: "That for unbonded
debts existing December 31, 1871, and unpaid
at the time of the passage of this Act, or
caused by receipts of certificates of 1871, for


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."

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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 [349] 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 [350] 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,
ises nothing to the persons taxed, beyond it is a compulsory, and not a voluntary and
what may be anticipated from an adminis- contractual, trustee. The legislation of Feb-
tration of the laws for individual protection ruary 24, 1871, by which, for the first time,
and the general public good. Special as it became connected with these local im-
sessments, on the other hand, are made upon provements and assessments, gave it no option
the assumption that a portion of the com- as to price or party, but, prescribing and
munity is to be specially and peculiarly naming both, gave it simply discretion as to
benefited, in the enhancement of the value the places and extent of the work. It author-
of property peculiarly situated as regards a ized and empowered the canal company to
contemplated expenditure of public funds; dig the works and fixed the price therefor.
and, in addition to the general levy, they The obligations cast upon the City were
demand that special contributions, in con- purely statutory, and while they were, in
sideration of special benefit, shall be made | respect to the party doing the work, and the
by the persons receiving it. The justice of collection of assessments, somewhat in the
demanding the special contribution is sup- nature of a trust, they are more to be re-
posed to be evident in the fact that the per-garded as statutory obligations, a failure to
sons who are to make it, while they are made discharge which puts less strain on the moral
to bear the cost of public work, are at the sense. Indeed, the Statute connects rather
same time to suffer no pecuniary loss there- the officers of the City than the City itself
by, their property being increased in value with the work. It is true the Act provides
by the expenditure to an amount at least that the title to the lands necessary for the
equal to the sum they are required to pay. works shall be procured and held for the
This is the idea that underlies all these benefit of the City of New Orleans; but it
requires that such title shall be so procured
and held by the board of administrators of
the City. It also provides that the extent
and nature of all improvements shall be
designated by such board; and that such
board shall be required to build and run all
works and drainage machines necessary to
lift the water from the drainage canals over
into Lake Pontchartrain, and to do all other
work necessary to facilitate the work of the
contractor selected and employed by the
State. The administrator of accounts was
directed to draw the warrants on the admin-
istrator of finance for the work done. All
the assets and assessments accumulated and
made under the prior statutes were transferred
to the board of administrators of the City.
The prior assessments were confirmed and
made exigible at such time and in such
manner as the board of administrators might
designate; and such board was authorized to
make an assessment of two mills per super-
ficial foot. So, that, while the title of the
Act is, "To Provide for the Drainage of New
Orleans," and while the City comes into the
Statute as a party to be ultimately benefited,
and whose officers are charged with the ad-
ministration, yet, nowhere in its sections are
the burden and duty of the work cast upon
the municipality as such. The paramount
idea of the Statute seems to be, not the cast.
ing of a duty upon the City, to be discharged
in such manner and by such means as it shall
select, but rather to transfer from the boards
of the original draining districts to certain
officers and agents of the City the duty of
carrying into effect the drainage system.

While the Acts of 1871 and 1872 bring the
municipal defendant into a scheme for subse-
quent duties, they do not bring it in as a
primary debtor, for whose benefit the work is
to be done, but simply as the agency by
which the special assessments are to be col-
lected; the trustee, as it were, of the special
assessments for the benefit of the contractor.
So that while the judgment at law measures
the rights and obligations of the parties to
this bill in equity, if we were at liberty to
look beyond the judgment to the antecedent
facts, we should be compelled to hold that
the judgment rightfully determined those
obligations; that the City never was charge-
able with the burden of primary indebted
ness, but stood to the plaintiff only as assessor
and collector of the special assessments.
Properly accepting this judgment at law as
an adjudication of the measure of his rights
against the City, the complainant charges
the defendant with three violations of duty
out of which he claims a recovery. He
charges, in the first place, that the City did
not collect these assessments when it ought
to and could have done so. Secondly, he
says that as owner of streets and public
[351] grounds it was directly liable to the drain-
age fund for a large amount, which it has
not paid; and that, therefore, its failure as
collector to collect from itself as debtor to
the fund authorizes a court of equity to pro-
ceed directly against it for those unpaid as
sessments. And, thirdly, he says that by
the purchase under the authority of the Act
of 1876 the City assumed the duty of com-
pleting the contemplated work; that, failing We do not mean to be understood as affirm-
to do so, it became responsible for all in- ing that no duty or liability was cast upon
juries resulting from such non-completion; the City by this Statute as such, or that the
and that, in consequence of such non-com-action of the city council thereafter and on
pletion, anticipated collections failed and
special assessments became non-collectible,
and the failure becomes a proper ground of
recovery against the City for any amount
which could have been, but was not, col-

Before considering these matters, it should be premised that to the extent that the City

April 27, 1871, was not within at least the
implication of the Statute. All we mean to
say is, that neither the full power nor the
general duty was cast upon the City, and
that the designation of its board of admin-
istrators as the agency to carry on the work
of drainage already undertaken by statutory
direction by the local boards of separate dis-



tricts placed upon the City only a limited phis v. Brown, 87 U. S. 20 Wall. 289 [22:
responsibility for that which such board
might do or omit to do.


264]. Whatever obligations were assumed
were only those of collection. The mere
fact of non-collection does not prove derelic-
tion of duty. From 1858 to 1871 this drain-
age work, with the duty of assessment and
collection, was vested in certain local boards.
The total assessments during those years
amounted to $1,433, 152.25. The amount col-
lected in cash and warrants was $334,941.62.
In addition, there was transferred to the com-
missioners, on nonpayment of assessments,
lands of the nominal value of $171, 239.11,
or a total collection of about half a million
on a million and a half of assessments.
stands to reason, and scarcely needs the sup-
port of testimony, that during these many
years the available assessments were col-
lected; and that what remained, which was
the large bulk, was charged upon property
not worth the assessment, and for that reason
was not collectible. The testimony of Mr.
Guthrie, who was the representative of the
canal company and its assignee, is "that he
would not take the property bought in by the
commissioners for nonpayment of assess-
ments, and pay the taxes thereon." If they,
during these many years, were unable to
collect but a small fraction of the assessments
in cash, if the property they took was not
worth the taxes, what can be said of the
balance, or the possibility of enforcing the
collection of assessments thereon?

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 [355] 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

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