Southern Chemical & Fertilizing Co. v. Wolf

The opinon of the court was delivered by Nicholls, C. J. Plaintiffs contend that for the purposes of a decision upon the exceptions all the allegations of their petition are to be taken for true. Plaintiffs in their petition have pleaded part of the evidence upon which they would rely in the event of a trial on the merits, and announced in some places conclusions of law. These particular portions of the petition we do not consider as falling under the rule invoked, that on the trial of an exception of no cause of action, the allegations of the petition are to be taken for true. We need not enter into a discussion of the question whether corporations of any kind are authorized or not to maintain an action for libel, nor what may be the rules of law in relation to the subject generally. Our inquiry is limited to an examination of the right of the plaintiff corporation to institute the present action. They are admittedly acting as a public agency of the city of New Orleans in respect to a duty with which the city itself stands charged. Their agency is secured to them by an express conventional contract covering a period of twenty years. They receive from the eity for the services they are called on to perform under the contract the amount fixed by the acceptance of their bid and the advantage of — 638 — receiving and converting into merchantable products so much of the materials removed by them as are susceptible of being utilized for that purpose. For and in consideration of the advantages to accrue to them under the contract plaintiffs undertook to faithfully perform the duties enumerated therein. The contract reaches, touches and affects every householder in the whole city. They are not only called upon under penalties to do certain acts, but they are also called upon under penalties to abstain from doing certain other acts. Not only is the right of individual liberty of action of citizens materially restrained by the ordinance upon which plaintiffs base their rights, but danger of fine and imprisonment confront them in case of transgression .of its provisions. Unlike many contracts entered into by the Common Council in respect to which the individual citizen has only an extremely remote relation and connection, this parfieular contract comes home daily and specially to every family in the limits of-the Corporation, and brings the heads of each as near to being actual parties to it as it is possible for them to be brought under a contract passed by public authority. The individual citizens can scarcely be looked upon as utter strangers to this contract. They have separate rights and separate obligations based upon it, which authorize them to deal with it and the contractors in a very different manner from that which they would be entitled to deal had they no direct connection with either. We are of the opinion that whenever a difference arises between the contractors and the occupants of particular premises as to either a construction of the rights and obligations of the former under the contract, or as to their performance or nonperformance of duty, the latter have the right, under Sec. 13 of the ordinance, to submit the matters in dispute to the Commissioner of Public Works for investigation and for action, should action be justified. We do not thiuk plaintiffs call in question the correctness of that proposition, on the contrary they refer to the action of the defendants in calling the attention of the commissioner to the complaints urged by them as action “ which had exhausted their remedy.” They insist, however, that they could go no further — that they could go no further than the commissioner; that the Board.of Health had no jurisdiction over the matter and that the communication made to it was unauthorized and unjustifiable. Let us see, if we can, what, the situation was when defendants — 639 — wrote the communication in question to the Board of Health. There evidently had been a difference of opinion between the plaintiffs and the defendants in respect to the duty of removal by the former of the contents of a certain box which the latter were in the habit of placing upon their sidewalk. The matter having been referred to the Oommissioner of Public Works, and by him to the City Attorney, had resulted in the conclusion reached by those city officials that it was not part of the duty of the contractor to remove them. The effect of that conclusion would be to cause the contents of the boxes, such as they were, to be thereafter- left on defendants’ premises without any designated method for their removal. In that situation of affairs defendants, obviously thinking that it was not their own duty to remove them, wrote to the President of the Board of Health asking for his advice in the premises, stating that the opinion reached by the Oity Attorney had been based upon an erroneous idea as to what the contents of the box were, stating affirmatively what those contents had been, and what they would continue to be, and stating that such articles left on private premises in the city were calculated to injure the public health. We see nothing in this communication of a denunciatory or vituperative character other than the declaration made in regard to the driver of the particular wagon of the plaintiffs which removed the garbage from that neighborhood. There is nothing intemperate that we see in this communication, nothing more than a statement from their standpoint of what they conceived the situation to have been, and what they conceived it would be, and asking for advice as to obtaining relief from that situtation. We see nothing in that letter to that official calculated to bring the plaintiff company into public contempt, or disrepute, or to damage them. The letter called for advice at furthest inquiry, and this from a source from which advice would naturally be sought and inquiry expected. It is the very general impression throughout the community that the Board of Health has cognizance of all matters affecting the cleanliness and sanitary condition of the city, and were this mere general impression insufficient to have warranted defendant in having re-' ferred this matter to tlie president of the board, we are by no means prepared to give to the tenth section of the ordinance the narrow construction which plaintiffs place upon it as to the scope of the duties of the Board of Health in respect to garbage or — 640 — offensive or injurious articles left in the public streets or on private premises. This case does not call for any discussion of the right or duties of the board — it is enough for present purposes to say that in our opinion defendants have sufficient warrant under the terms of the ordinance itself to write the communication they did. We do not give to a conclusion reached by the Commissioner of Public Works adverse to a contention raised by a citizen as to the duties of the contractors, the conclusive character which the plaintiffs contend for as closing the door to further remonstrance, criticism or complaint. The conclusions we have reached in the case relieve us from a minute analysis of the allegations of plaintiffs’ petition, for, granting that the box never contained articles of the precise kind which defendants declared it to have contained, and that any statement to that effect, either to the Commissioner of Public Works or to the president of the Board of Health, was untrue, and that, therefore, plaintiffs had never in point of fact refused to remove from defendants’ premises articles which suffered to remain thereon “would putrefy in their yard, thereby endangering the health and possibly the lives of their employees,” have the plaintiffs disclosed herein a cause of action. There was unquestionably a difference between the defendants and the driver of one of the plaintiffs’ wagons, as to the duty of the company to remove the contents of a certain box which the former were in the habit of leaving upon their sidewalk. The real matter in dispute was the removal of those- contents; their character being merely incidentally brought into the controversy as arguments for or against the duty. It is not denied that the contents of the box, such as they were, remained on the premises unremoved. It is not asserted that the company were not, under the obligations imposed upon them by Sec. 8 of the ordinance and contract, called upon to remove them entirely, independently of the question whether or not they fell under the term “garbage,” as used in one portion of the contract. If the contents of this box were permitted to remain on the sidewalk, defendants (claiming that it was plaintiffs’ duty to take them away, under their contract) had a right to insist that they should do so, and the fact that in doing so, they maintained (while the plaintiffs denied) that the contents constituted “ garbage,” and that defendants maintained that, if left where they were, they — 641 — would be injurious to defendants’ employees, while plaintiffs maintained, and still maintain, they were inoffensive, furnishes a very narrow foundation to build an action of libel. Plaintiffs’ occupation and business rest, as we have said, upon a conventional contract, which fixes its continuance for twenty years. They have vested rights in this matter, of which they can not be divested by either the whim, the caprice or the dissatisfaction of the Council. A rescission of their contract could only be brought about through proceedings in which would be subjected to judicial scrutiny and determination, by judicial tests, the respective rights acd obligations of the parties. It is true that the thirteenth section of the ordinance, No. 7860, confers upon the Commissioner of P-ublic Works the right to declare a forfeiture of ten dollars upon the amount otherwise due the plaintiffs, for every neglect by them in removing particular garbage; but this power is to be exercised only after refusing to remove after notice from the Commissioner, and even in this matter his action is subject to appeal to the Council. The section contemplates investigation by the Commissioner prior to the infliction of the forfeiture. It is not alleged by the plaintiffs that any litigation has resulted from the alleged libel; that either the Commissioner or the city has fined or threatened to fine the plaintiffs; that the Common Council has attempted to investigate their conduct, or to intimate any intention to resort to proceedings looking to the rescission of the contract. There is nothing going to show that in point of fact the plaintiffs have lost the confidence of the City Council. On the other hand, nothing which the defendants said in their communication could have had any legal effect upon the dealings of citizens with the company or the company with them. The rights and obligations of each householder are fixed by the ordinance and the contract. Each householder is entirely separate and distinct from the others, each has to be judged by his own conduct under the terms of the ordinance. Plaintiffs declare, in general terms, in their petition that the communication “ has damaged” and “will seriously damage and injure them” in their business, and that “said damages” amount to the full sum of twenty-five thousand dollars, but they state no fact or facts from which a court can discover any damage or injury in this case. They say that the effect of the communication will be to subject them, perhaps, to — 642 — unnecessary and annoying surveillance, and create a disposition on the part of the city to captiously impose upon them penalties foi-violations of their contract, but parties who enter into public contracts with public bodies affecting individual rights are bound to, know that in entering into such contracts they open the door to the, legal scrutiny and criticism of their acts by every citizen whose-interests are involved in the proper discharge of their duties. Surveillance may be annoying, and may, sometimes, to the contractors,, seem unnecessary, but it is far better that annoying and unnecessary surveillance should exist than that the right of petition or complaint-of citizens to the supervising officials should be stifled through fear of actions ior libel. Supervising officers themselves are public officials, and they have to be frequently stimulated into action by having the propriety of their own course called into question. We do not see that the defendants in this case did anything more than they had the right to do, nor wherein they overstepped the legal limits of the right of criticism and complaint. We think the judgment appealed from is correct, and it is hereby affirmed.