Conery v. New Orleans Waterworks Co.

Tlie opinion of tlie Court was delivered by Todd, J. This is an action on the part of the plaintiffs, residents of the- city of New Orleans, alleging themselves to be taxpayers to the [772] city in a sum exceeding $10,000, against the city of New Orleans and the New Orleans Waterworks Company and others, seeking to restrain the execution of a contract entered into between the city and the said Waterworks Company on the 3d of October, 1884, and to prevent the council of the city from making any appropriations out of the public treasury in furtherance of the contract and the ordinance authorizing it; and further asking that said “ contract and ordinance be declared null and void.” The petition charges as the ground of nullity that said contract and ordinance violate expressly the terms of the chai ter of the company, and are ultra vires, unconstitutional, null and void; and sets forth at great length the causes or reasons of the illegality and nullity propounded. To this petition the city of New Orleans filed the following exceptions : 1. That plaintiffs have no capacity to stand in judgment. 2. That the petition disclosed no cause of action. The Waterworks Company presented exceptions, which though differently formulated were in substance the same as the above. The judge a quo, for reasons assigned in a lengthy and elaborate opinion, sustained the exception as to the right or capacity of the plaintiffs to maintain the action or stand in judgment, and dismissed the suit. From this judgment the plaintiffs ajipealed. This precise question was invoked in the case of Handy et al. vs. City of New Orleans, recently decided and not yet reported. Like the instant one, that was a case where a number of taxpayers .and residents of the city joined in a suit for the annulment of a contract and ordinance, of the city touching the wharf lease, on grounds very similar in every respect to those urged in the case before us. We. quote from the syllabus of that case to show the identity of the questions involved in the two cases, and how they were decided : “ Taxpayers have a standing in court to contest upon proper charges the validity of a municipal ordinance and contract executed under it, whenever its enforcement may increase the burden of taxation. “A district court, the lower limit of whose jurisdiction is fixed, has jurisdiction to pass on such controversy when the matter in dispute, [773] which is the value of the contract, exceeds that limit; aud the Supreme Court has jurisdiction on appeal when the value exceeds $2000.” It plainly appears, therefore, from this recent ruling of this Court, amply supported by the authorities cited in the opinion, that in the instant case the decision of the lower court upon the exception in question was erroneous. Notwithstanding that this question of the rights or capacity of the parties to stand in judgment was the sole question decided by the court a qua, as abundantly shown by the reasons therein assigned for the judgment rendered; yet the counsel on both sides have indulged in a lengthy and very able discussion of the exception as to “no cause of action” filed, but not determined in the court below. We have examined thoroughly the record of the case, and are satisfied that there exists little or no dispute as to the facts out of which this controversy has grown; and that therefore the determination of the exception of “no cause of action” will determine fully the merits of the cause. This vital issue has not been passed upon or even considered by the judge a quo, as we learn from his written opinion in the record. It is the province of the appellate court to review the proceedings of the inferior court, and to determine whether its rulings and decrees therein embraced are right or wrong, and not to deal'with matters and issues distinctly presented by the pleadings but not considered or decided by that court. 19 L. 207; 9 R. 256; 7 Ann. 622; 10 Ann. 552; 11 Ann. 746; 15 Ann. 159. We conclude, therefore, that it is proper to remand the cause, that the all-important issue raised by the exception referred to, not passed on by the court of the first instance, may be there tried and determined. It is, therefore, ordered, adjudged and decreed that the judgment of the lower court sustaining the exception touching the right or capacity of the plaintiffs to maintain the suit and stand in judgment and questioning the jurisdiction of the court, be and the same is hereby reversed and the cause remanded to be proceeded with according to law; the costs ol' the lower court thus far incurred in the exception overruled and of this appeal to be'paid by appellees, and the further costs to abide the final issue of the case.