New Orleans v. Morris

Decision Date01 October 1881
PartiesNEW ORLEANS v. MORRIS
CourtU.S. Supreme Court

APPEAL from the Circuit Court of the United States for the District of Louisiana.

The facts are stated in the opinion of the court.

Mr. E. Howard McCaleb for the appellant.

Mr. William Wirt Howe and Mr. John A. Campbell for the appellees.

MR. JUSTICE MILLER delivered the opinion of the court.

This is an appeal from a decree, dismissing, on a plea of the defendants, the bill of the city of New Orleans.

The substance of the bill is that the defendants, having several judgments on the law side of the court below, had caused executions to be issued and levied upon shares of the stock of the New Orleans Water-Works Company; that the marshal had advertised and was about to sell them; that prior to March 31, 1877, the city was the sole and absolute owner of the water-works now owned and held by the corporation known as the New Orleans Water-Works Company; and that on that day the legislature of Louisiana enacted a law creating that corporation, with a capital of $2,000,000. Of this sum the corporation, as soon as organized, was to 'issue to the city of New Orleans stock to the amount of $606,600, full paid and not subject to assessment, and in addition thereto one similar share for every hundred dollars of water-works bonds which the city has taken up heretofore and extinguished by payment, exchange, or otherwise; and that the residue of said capital stock shall be reserved for the benefit of all holders of water-works bonds, to the extent of the amount now outstanding, who may elect to avail themselves of the provisions of this act.'

The bonds here referred to were issued by the city while sole owner of the water-works, in aid of their construction and extension.

The seventh section of this act reads as follows: 'Be it further enacted, that the stock owned by the city of New Orleans in said water-works company shall not be liable to seizure for the debts of said city.'

It was under this statute, and especially under the section just recited, that the city invoked the restraining power of the court to prevent the sale of its stock in the company.

To this bill the defendants interposed a plea to the effect that, so far as the provision of the statute, exempting the stock of the city in the water-works company from sale under execution, relates to their judgments, it is void by the Constitution of Louisiana and the Constitution of the United States, each of which forbids the enactment of laws impairing the obligation of contracts; and that the contracts on which their judgments were obtained were made before the passage of the act of 1877.

The court held this plea good, and, as we have already said, refused the injunction, and dismissed the bill.

The first point raised in argument which requires our attention § that, whether the court below was right or wrong in its decision of the case on its merits, the bill must still be dismissed for want of equity, on the ground that there is an ample remedy at law by a motion to the court to compel the marshal to release his levy, because the stock was not liable to be sold on the execution.

It will be observed that no such objection was made in the court below, and although one of the defendants filed a general demurrer to the bill which might have raised it, he afterwards withdrew his demurrer and joined in the plea on which the case was decided.

This plea was a defence on the merits of the case, and was to be held good or bad on precisely the same principles whether pleaded to a declaration at law or a bill in chancery. We should, under such circumstances, have great hesitation to permit the party who, by tendering this issue, had waived the question of the special jurisdiction of the court in equity, to raise that point for the first time on appeal.

We are of opinion, however, that the bill does show on its face a sufficient ground of equitable jurisdiction in its allegations that are sustained by the provisions of the statute, which create a trust in favor of the holders of the old water-works bonds of the city, and of other creditors of the city, which is not shown in any way to have been released or discharged.

Notwithstanding, therefore, the opinion of this court in Van Norden v. Morton (99 U. S. 378), that in the ordinary case of a wrongful levy of an execution on property not subject to be seized under it, the proper remedy is by motion to have the levy discharged, we think there is in this bill other sufficient grounds for the equitable jurisdiction of the court.

The question to be decided on the merits is, shortly, this: Is a statute of a State legislature which, in the act authorizing a city to convert its ownership of a large and valuable property, held for the use...

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19 cases
  • Brush v. Commissioner of Internal Revenue
    • United States
    • U.S. Supreme Court
    • March 15, 1937
    ...S.Ct. 471, 49 L.Ed. 831; Houck v. Little River Drainage District, 239 U.S. 254, 261, 36 S.Ct. 58, 60 L.Ed. 266. In New Orleans v. Morris, 105 U.S. 600, 602, 26 L.Ed. 1184, the city had conveyed its waterworks to a corporation formed for the purpose of maintaining and enlarging The city rece......
  • City of Ogden City v. Bear Lake & River Water-Works & Irrigation Co.
    • United States
    • Utah Supreme Court
    • March 26, 1898
    ...sec. 635; 1 Ibid, sec. 508; 1 Ibid, secs. 27, 110; Morawitz Priv. Corp. 1120 to 1129; Merewether v. Garrett, 102 U.S. 473; New Orleans v. Morris, 105 U.S. 600; 2 Beach Pub. Corp., sec. 1327; 15 Am. & Eng. Enc. of Law, pp. 1100-1103; Water Wks. Co. v. Reed, 50 N. J. L. 665; Noel v. City of A......
  • E. Union Co. of Del., Inc. v. Moffat Tunnel Improvement Dist.
    • United States
    • Delaware Superior Court
    • March 19, 1934
    ...New Orleans v. Louisiana Construction Co., 140 U. S. 654, 9 S. Ct. 223, 32 L. Ed. 607 (public quay or levee); New Orleans v. Morris. 105 U. S. 600, 26 L. Ed. 1184 (waterworks): Equitable Loan, etc., Co. t. Edwardsville, 143 Ala. 182, 38 So. 1016, 111 Am. St. Rep. 34 (stock of liquor in a to......
  • Singer Sewing Mach. Co. of New Jersey v. Benedict
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • April 27, 1910
    ... ... & Practice (5th Ed.) pp. 555, 600, et seq.; Wylie v ... Coxe, 15 How. 415, 420, 14 L.Ed. 753; New Orleans v ... Morris, 105 U.S. 600, 26 L.Ed. 1184; Reynes v ... Dumont, 130 U.S. 354, 395, 9 Sup.Ct. 486, 32 L.Ed. 934; ... Brown v. Lake Superior ... ...
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