United States ex rel. Fisher v. Board of Liquidation

PARDEE, Circuit Judge (after stating the facts). The first assignment of error is that the circuit court erred in excluding the evidence tending to show that a special tax had been levied by the city of New Orleans to pay the indebtedness held by the relators, a large amount had been reduced and canceled by the city, and all other claims had been funded, with the exception of the school indebtedness. The suit being one to compel the performance of a strictly legal and ministerial duty, the evidence in question was wholly irrelevant. If it had been admitted, it would only have tended to show an equity in favor of relators, and against the city of New Or-. leans, which could in no event avail relators in the present suit. •The second assignment of error is that “the court erred in not enforcing section 3 of the act No. 74 of 1880.” The act referred to provides, in its first section, that “the municipal government of the city of. New Orleans be and is hereby authorized and empowered to issue from time to time, as they may be required, bonds of the sum of five dollars ($5), having ten years to run from the 1st day of July, 1880, bearing interest at the rate of 3 per cent, per annum, payable at the city hall in New Orleans, and with semiannual coupons attached;” and, in its third section, that the said bonds may be issued to take up the unbonded valid indebtedness of the said city of New Orleans, and the unpaid salaries of school teachers and expenses of maintaining the public schools, created since 1872 and prior to January 1, 1880, with certain other provisions not necessary to enumerate. The other sections of the act relate to details with regard to the issuance of bonds, and with regard to providing a special fund [390] and sinking fund to redeem tlie bonds. See Acts La. 1880, p. 84. Three very distinct and coidplete answers may be given this assignment: (1) Under the act in question, the board of liquidation of the .city debt, defendant in this suit, is not by said act authorized to issue any bonds whatever, but that duty, under the terms of the act, devolves upon the municipal government of the city of New Orleans. (2) The act in question was superseded and practically repealed by Act No. 133, passed three days after by the same legislature, which latter act created the boárd of liquidation of the city debt, gave the said board exclusive control and direction of all matters relating to the bonded debt of the city of New Orleans, provided when and how new bonds should be issued, and otherwise turned over to said board the matter .of liquidating the indebtedness of the city of New Orleans, and applying its assets to the satisfaction thereof. See Acts La. 1880, p. 180. (3) The act in question, so far as it places the unpaid salaries of school teachers and the expenses of maintaining the public schools created since 1872 and prior to January 1, 1880, on the same footing as the valid indebtedness of the city of New Orleans, is in violation of article 45 of the constitution of 1879, which denies the power of the general assembly to grant extra compensation to public officers, or pay, or otherwise authorize the payment of, any claim against the state or any parish or municipality of the state, under any agreement or contract made without express authority of law, and declaring all such contracts or agreements null and void; and it was so adjudged by the supreme court of the state of Louisiana in Labatt v. City of New Orleans, 38 La. Ann. 283. See, also, New Orleans Taxpayers Ass’n v. City of New Orleans, 33 La. Ann. 567. The third assignment of error is that the court erred “in not granting the relators the relief prayed for under Act No. 110 of 1890 and the act No. 67 of 1884.” The first section of Act 110 of 1890 (Acts La. 1890, p. 144) provides for the submission to the electors of the state of amendments to the constitution for the purpose of retiring -the existing valid outstanding bonds of the city of New Orleans, including certificates or the bonds issued under the act No. 58 of 1882, and to retire judgments then or thereafter rendered against the city on floating debt claims prior to 1879, entitled .to be funded under Act No. 67 of 1884; and, further,- that the said bonds shall not exceed $10,000,000. It also provides for the issue of constitutional bonds of the city of New Orleans,to the amount of $10,000,000. Section 2 of the act authorizes the’ sale of such bonds. The third section provides for the deposit of funds received from the sale of constitutional bonds, which fund shall be used solely and exclusively for the purpose of retiring by payment all the said now outstanding valid bonds of the city of New Orleans, matured or subject to be called, including the certificates or •bonds issued under the fourth section of Act No. 58 of 1882, and including judgments now or hereafter rendered on floating claims prior .to 1879, entitled' to be funded under Act 67 of 1884, but excluding premium bonds issued under Act No. 31 of 1876. The fourth section provides the manner in which the board shall purchase out [391] standing bonds of the city, and the fifth section for the exchange of the constitutional bonds authorized for the valid outstanding bonds of the city of New Orleans. The other provisions of the act need not be referred to. It will be noticed tha t this act (and it is the sole authority under which the hoard of liquidation of the city debt is • now authorized to issue bonds of the city of New Orleans) does not, in terms nor by necessary implication, authorize the issue of bonds except for exchange for the valid outstanding bonds of the city of New Orleans, and for sale to raise a special fund which is to be used solely and exclusively for the purpose of retiring by payment outstanding valid bonds, including certain certificates and including judgments then or thereafter rendered on floating claims prior to 1879, and entitled to be funded under Act No. 67 of 1884; and, further, that said board of liquidation is authorized to exchange the constitutional bonds authorized to be issued only for the valid outstanding bonds of the city of New Orleans. As to the judgments then and thereafter to be rendered on floating debt claims prior to 1879, it seems that the board is not authorized to deal with them otherwise than by payment. Act No. 67 of 1884 (Acts La. p. 89), in its second section provides as follows: “That the said board of liquidation of the city debt be and it is hereby authorized and required, and it is made the duty of the said board, to retire and cancel the entire debt of the city of New Orleans, now in the form of executory judgments and registered, under the provisions of Act No. 5 of 1870, and that which hereafter may become merged into executory judgments and likewise registered; except the floating debt or claims created for and against the year 1879, and subsequent years; that it is the full intent and meaning of this act to apply solely the privileges thereof to executory judgments, at present rendered against such city, and to such floating debt or claims against said city for 1878, and previous years merged and to he merged into executory judgments, whether absolute or rendered against, the revenues of any particular year or years, previous to the year 1879; that for1 the pul-póse of retiring and canceling said judgment debt, the said board is authorized and required either to sell the bonds to be issued under this act at not less than their par value and apply the proceeds thereof to the payment of the said judgments, as above specified, or issue said bonds in exchange for said judgments.” The judgments on floating claims prior to 1879 that are entitled to be funded under the act of 1884 (No. 67) are described in the section just quoted as executory judgments rendered against the city, and based on floating debts or claims against the city. The legislative intent declared in the act itself renders this perfectly clear. Now, the relators have no judgments against the city, and it is shown in Labatt v. City of New Orleans that the relators’ claims are not, and cannot be made, a debt of the city. Besides this, in the case of Fisher v. School Directors, 44 La. Ann. 184, 10 South. 494, which was a suit by the relators herein to establish their claims, being the same claims now merged into a judgment in the circuit court, which is the basis of the present suit for a mandamus brought against the board of school directors, and by wav of obtaining recognition of the claims also against the city of New Orleans, it was expressly adjudged that the claims in question were in no sense debts or liabilities of the city of New Orleans, and this judgment in favor of the city is [392] res judicata. Tbe circuit court refused tbe mandamus prayed for by relators, because they have no judgment against tbe city of New Orleans, and it is only judgments against that municipal corporation which, under tbe existing law, can be dealt with by tbe board of liquidation. This ruling was in all respects correct, and should be affirmed, with costs. Judgment accordingly.