State ex rel. John Klein & Co. v. Pilsbury

The opinion of the court was delivered by Spencer, J. Plaintiffs are brokers of said city. They allege that as such they were employed by a number of firms of New Orleans named in their petition, to pay for and obtain their several licenses from said [788] city. That in pursuance of their said employment, relators had applied to defendant, Ed. Pilsbury, Administrator of Finance, for said licenses, and had tendered to him in payment therefor, certain Metropolitan Police warrants described in relators’ petition. That although said warrants are by express law made receivable by the city for such licenses, yet the said Administrator in disregard of his plain duty refuses to receive them, and issue said licenses. Wherefore he prays for mandamus which was granted nisi. The defendant filed various exceptions — insisting in this court however only on the third one, which was in substance, that relators have no real interest in the matter; theirs are not the licenses to be paid, and they have no right to maintain an action to require the city officer to receive for the licenses of others, the warrants belonging to the relators. This exception was not well taken. C. C. (old) art. 2130 — “An obligation may be dischargedby any person concerned in it, such as a co-obligee or surety. It may even bo discharged by a third person no way concerned in it, provided that person act in the name and for the discharge of the debtor, or that, if he act in his own name, he be not subrogated to the rights of the creditor.” Art. 2131 — A third person may for the advantage of the obligor, put the obligee in default by offering to perform the obligation on the part of the debtor, even without his knowledge; but it must be for the advantage of the obligor, not merely to change the creditor.” In the case before us it is alleged and proved that relators acted as the- employees, or at least at the request of the debtors, and we think they have the right, under the above articles to compel the creditor to accept payment — and it is not material whether they are acting in their own names or those of the debtors, as they do not seek or demand a subrogation, but a discharge of the debtor. Defendant further denies the right of relators to proceed by mandamus, and sets up in defense that the warrants tendered are of doubtful authenticity and legality, and that he believes many of them are spurious and not genuine. Ho insists that the relators must first sue and establish the validity and genuineness of the warrants, before proceeding by mandamus. We do not think so. Act No. 33 of the Legislature of 1874, declares in so many words that these police warrants shall be received “for all licenses * * * due or to become due ” the city. The right to pay licenses therefore with these warrants is indisputable, unless said act be unconstitutional, of which we find no evidence. Our predecessors we think correctly held these warrants to be so receivable in the case of “ the State ex rel. Ed. Lubie vs. the Administrator of Finance,” not yet reported. This law does not require that these warrants be recognized [789] by judgment, before being legal tender for such license-taxes. It requires the city to receive them in payment. True if the administrator has doubts of their genuineness he may refuse and ought to refuse them, until there is proof thereof — just as he ought to refuse to take United States currency tendered, if he doubt its genuineness, if the holder of these warrants can not compel their receipt, until he has put them in judgment against the city, the law would be a dead letter; for it does not authorize the payment of licenses, in judgments, but in warrants, which would in the ease supposed, be merged in the judgment and therefore not within the terms of the law. The fact that the city disputes the genuineness of-these warrants, is a mere incidental issue, which courts must and can determine, when arising in proceedings by mandamus. 'Thus when a public officer is proceeding by mandamus for possession of the records-of his office, if denied, it must be made to appear that he is the person exercising the functions of that office. And so of other collateral issues without number, which inevitably arise. If it were held that in a proceeding by mandamus incidental questions of this kind could not be determined, then indeed would the process be an empty form. If relators or those in whose interest they act, were tendering United States currency or coin, instead of warrants, in payment of the licenses, such a rule would leave them remediless, if the Administrator •saw fit to dispute the genuineness of the bills or coin tendered. Yet we presume there can be no question of the right of the debtor of a license to proceed by mandamus, to compel the Administrator to receive currency in payment. Police warrants are as much legal tender for 'that purpose as currency. The remedy of the debtor is the same in both cases.