Barber Asphalt Paving Co. v. City of New Orleans

The opinion of the court was delivered by Breaux, J. This is a suit to recover an amount from the City of New Orleans, for paving the intersections of certain streets, and one-fourth of the cost of paving in front of private property. We abbreviate the pleadings as follows: Plaintiff claims for cost of paving completed April 30, 1886, the City’s portion, amounting to $7665.83, and that completed June 29, 1886, $603.86. The City Council appropriated $8279.59 to its payment out of the reserve fund for 1887. For cost of paving completed in 1887 plaintiff claims $36,173.58. Part was completed in May of that year, and part in June. This sum was ordered to be paid out of the reserve fund for 1887. The legality of the contract is alleged, and the performance of the work as stipulated. Act No. 109 of 1886, amendatory of the City Charter of 1882, and Act 88 of 1884, requiring the City to set aside 20 per cent, of her revenue and of allotments received from contingent sources, to pay for permanent improvements, are pleaded, and plaintiff represents that this fund is about to be illegally disposed of, in great part, to -its prejudice. That the comptroller is about to warrant for payment to be made, in the order of claims, as set down in the budget. That this reserve fund will prove insufficient to pay all the claims on the list, and petitioner contests those which the comptroller proposes to pay before its own. He prayed for an injunction enjoining any payment out of the revenue fund of 1887, to C. J. Fayssoux and other defendants named. — 470 — The City and the Comptroller plead to carry out the budget as adopted. The defendant C. J. Fayssoux, and J. W. Adams, another defendant, filed exceptions of no cause of action. The former, in his answer, denied the allegations of plaintiff, especially those as to illegality of the apportionment, in his favor, and claimed to be paid out of the “reserve fund” for 1887. The latter alleged that plaintiff had no right to any part of that fund. The other answers are substantially the same, except that in one estoppel is pleaded on the ground that, plaintiff’s claim, not having been budgetted at the time the annual budget was adopted, but afterward, by special ordinance, it was without right to recover. J. Tupper, alleging that he is a creditor, and that he owns taxable propertj’' in New Orleans and pays taxes thereon, intervened and opposed the claims other than plaintiff’s. Facts in the Case. A few facts, general and applying to all claims, will be stated at this time. The statement of the others will be made in considering the respective claims. It is conceded by all parties that the reserve fund of 1887 is insufficient to satisfy all claims appropriated against. None of the claims are for permanent improvements made in 1887, except part of that of plaintiff, amounting to $36,173.58, and the claims of J. W. .Adams and that of the Milner Coal and Railroad Company. The two last are opposed as not being for permanent improvements. Before considering the claims separately, certain questions of law will be discussed. 1. Whether debts for permanent improvements of one year can be left unpaid and the reserve fund of that year applied to the improvements made in another year? It is contended by most of the creditors whose claims are carried on the budget, that the reserve fund is unconditionally placed at the disposal of the City Council, to pay for permanent improvements without regard to the year in which a particular work or improvement may be contracted for. That the “reserve fund” provision would be without force if the — 471 — Council is bound to apply each year’s reserve to work to be done in that year. The object of the legislature to eradicate the evil of appropriations and expenditures in excess of actual resource; an evil sorely felt during a number of years of extravagance and waste will not be advanced by construing away the law limiting revenues to the payment of the expenditure to the year for which they are collected. Act 50 of 1877 reads: “That the revenues of each year shall be devoted to the expenses of that year” (i. e. the creditors have preference over the fund). The reserve fund is part of the revenue. If a repeal has been effected in so far as relates to that fund, why is the act not repealed in so far as relates to the alimony of the city? One is for permanent improvements, the other for the operative expenses of the city. All revenues and all expenses include the 20 per cent, and the 80 per cent. The statutes have not established any difference in this respect. If the “ reserve fund law had not been adopted, part of the fund would doubtless be expended in making improvements of a permanent character; in paying for them the limitation Act of 1877 would be enforced. The Acts creating a “reserve fund” have only fixed the percentage to be taken from the revenues. If the Legislature had ordered a fund reserved of 5 per cent, for any purpose of alimony, this would not have effected a repeal of the limitation to that extent. Why should it be different when claims are presented for permanent improvement. The first law provides a limit; annual stops and rests, as it were, settlements. The second provides a reserve fund. There is no conflict, both can be enforced. There is no repeal by implication. The argument ab inconvenienti does not recommend itself to special favor. If there be inconveniences or annoying hindrances to its enforcement, we sincerely hope that it will attract the attention of the members of the Legislature, who alone are competent to abolish it. — 472 — Another question is suggested. • 2. Must the particular improvement be designated and provided for in the annual budget? Act 109 of 1886, and the provision of the charter, Sections 64 and 65, obviously make the 20 per cent. “ reserve ” part of the annual budget ill effect at least. The reserve is excluded from the rule which prescribes, from year to year, that a budget of revenues and expenses be adopted. This expenditure is provided for by the Statute; the amount and the purposes to which it shall be applied, whether expressed or not in the budget, is made a part of the budget by Statute. The claim of the plaintiff, the Barber Asphalt Paving Company. This claim has been proven. $8279.69 of the amount are due for improvements in another year and are not collectible out of the funds of 1887. The remainder of the work was performed as alleged and the amount is due from the “ reserve fund” for'that year. Objection is made by the City to the payment of legal interest out of this fund. It has been twice decided by a unanimous court in suits against the City that in the absence of any stipulation, no interest shall be allowed prior to amicable demand and prior to funds being in the treasury of the City for its payment. Fernandez vs. New Orleans 42 An. 1; Fire Engine Co. vs. City, 89 An. 981. It only remains for us to apply the principle held settled by jurisprudence. The right to recover legal interest dates from the time the City has the needful amount to pay, and defaults in payment. The claim of C. J. Fayssoux. This claim dates from 1882. The contract for paving streets named was made in conformity with Act 78 of 1876, and it stipulates that the cost of the pavement shall be paid by the City in part and the balance by the owner of the property fronting on the street, and that the City shall not be held liable or responsible for the failure of the contractor to collect from the front proprietor. The City paid its portion, some of the tax-payers resisted payment, suits were brought. One of these suits was brought here on appeal. Fayssoux vs. Succession of Chaurand, 36 An. 547. The plaintiff then brought suit against the City of New. Orleans, — 473 — and claimed from the City amounts he had failed to recover from the property owners. The City answered that it was in express terms stipulated in the contract that on failure to collect from the front proprietors the City was not to be held responsible. The City also plead prescription. Judgment was rendered on July 3, 1885, in favor of the City, rejecting plaintiff’s demand reserving, however, to plaintiff the right to take up and repossess himself of the material used in proportion to the whole amount of the paving done by him. There was absence of appeal. The City Council, in November of that year, passed an ordinance appropriating from the “reserve fund ” of 1883, for its payment. It not having been paid from that fund it was budgetted to be paid out of the “ reserve ” of 1887. No part of the improvement was made that year, and therefore the claim has no preference over its revenues. The plaintiff applies to have the judgment appealed from amended in so far as it fails to decree that this claim is illegal and constitutes no part of the valid indebtedness of New Orleans. The question relates to the authority vel non of the City Council to assume the payment of this claim. The Council passed ordinances to assume the debt. We have granted to plaintiff all it prayed for by excluding this claim from any preference over the “ reserve ” for 1887. The judge a quo without assigning the reason did not decide the question of the validity or invalidity of the assumpsit. He doubtless deemed it unnecessary. In this view we agree with him. The claim of the Rosetta Gravel Paving' and Improvement Company. This company is not represented by counsel in this suit and no demand is urged in its behalf. There-was a contract entered into between the city and this company in September, 1887. By mutual consent it was annulled, and another entered into in July, 1888. The work was performed in 1888 under the last contract. The company abandoned expressly all claims under the annulled contract. The consideration for the work under the contract of 1888 was — 474 — $30,000, payable out of the fund for the year 1887, and $15,000 but of the suspense account for 1885. The reserve for 1887, presents the only question involved in this case. The records disclose that the prerequisites were complied with prior to the contract. The claim has no preference on the revenues of 1887. The Milner Coal and Railroad Company and the J. W. Adams’ ■ Claims. The claim of the former is for coal furnished during the year 1887, and of the latter for lumber furnished during the same year. The coal was used for operating the drainage machines, and the lumber for general repairs. The reserve fund is to be used in paying for permanent public improvements. Coal used in creating steam has none of the elements of permanence. The same is true cf lumber used in making general repairs. The boards used in repairing an old house, the sleepers and other timbers laid down in a bridge to replace decayed ones, are not permanent improvements. An improvement is net permanent unless it is durable, distinct, and susceptible of identification. One generation builds and leaves them to future generations. In this case the improvements are not susceptible of identification. At any rate, no proof was offered to identify them. Plaintiff prays to be paid out of the “reserve fund” of 1887, and that the city be enjoined from paying its co-defendants from the reserve fund of that year. The prayer of the petition determines the character of the action. The intervenor joins the plaintiff in enjoining the payments of any of the claims of these defendants. The prayer is granted except as to interest in the sum of $8279.59, except, also, as to the interest on the balance, viz: on $36,173.58, allowed from date of maturity of indebtedness by the decree of the court a qua, but which should be allowed only from judicial demand. The judgment appealed from is amended by rejecting the de- ■ mand for interest from the reserve fund of 1887 prior to judicial demand; and we now allow interest only from judicial demand, and that appellees pay costs of appeal in proportion to their respective claims. As amended, judgment affirmed. Rehearing refused.