New Orleans & Carrollton Railroad v. Municipality Number One

By the court: Eustis, C. J. This appeal is taken by the First Municipality, from a judgment of the court of the Second District of New Orleans, by which an injunction obtained by the municipality was dissolved, with three hundred dollars damages, for the wrongful suing out of said writ. The plaintiffs being judgment creditors of the municipality for a large amount, seized certain ground rents due by various persons under execution, the municipality enjoined the sale, and the question is thus raised, whether these ground rents are liable to be seized and sold under the plaintiffs’ execution. The argument at bar has been directed to two points : first, whether the ground rents can be seized ; and, secondly, whether, if subject to seizure, they can be sold, or must be collected by the sheriff as they fall due, and applied to the payment of the plaintiffs’ judgment. It is contended, that the ground rents are on the same footing with any other property of the municipality, and, as such, liable to seizure for its debts, and that they are not within the exemption established in Egerton’s case. The land on which the ground rents are established, formed originally a part of the commons of the city. They were sold under the authority of an act of the Legislature of the 17th of February, 1821, which provided, that the Mayor and City Council (three-fourths of said body assenting thereto) might sell, on perpetual ground rent, such part of the landed property as they should think fit, with express stipulation, that the purchaser should never thereafter have liberty to redeem said ground rent by paying the capital thereof. The original charter of New Orleans, contemplated the existence and maintenance of certain permanent sources of revenue, which were to provide for the expenses of the government, and authorized taxation on real and personal property, to raise such sums as might be necessary to supply a deficiency in said revenues. Act of 1805 § 6 el seq. It is in that sense, and in conformity with the original law, that the statute of 1821, under which the sale of the land was made, mustbeinterpreted. By thisact, we conceive, a legal destination or appropriation of these ground rents was established as a portion of the permanent revenues of the city, to enable the municipal authority to exercise its powers of police and government. We do not think the present case distinguishable in principle from that of tha Mayor et al. v. Roosevelt, recently decided, 7th Ann. Egerton v. Municipality No. 3, 1st Ann. 435. Police Jury of West Baton Rouge v. Michel, 4th Ann. 84. Hart v. Municipality No. 3, 6th Ann. 571. [149] We think the court erred in dissolving the injunction against the sale of the ground rents seized under the plaintiffs’ execution. It is therefore decreed, that the judgment of the district court be reversed, and the injunction granted be maintained and made perpetual; the plaintiffs paying costs in both courts.