Barrett Mfg. Co. v. Board of Com'rs for Port of New Orleans, 19,511

• Court: Supreme Court of Louisiana
• Writing for the Court: LAND, J.
• Citation: 133 La. 1022,63 So. 505
• Parties: BARRETT MFG. CO. v. BOARD OF COM'RS FOR PORT OF NEW ORLEANS et al
• Docket Number: 19,511
• Decision Date: 03 November 1913

63 So. 505

133 La. 1022

BARRETT MFG. CO.
v.
BOARD OF COM'RS FOR PORT OF NEW ORLEANS et al

No. 19,511

Supreme Court of Louisiana

November 3, 1913

Rehearing Denied December 1, 1913

SYLLABUS

(Syllabus by the Court.)

Act No. 134 of 1906, entitled 'An act relative to building contracts in cities in this state of over fifty thousand inhabitants, providing for the bond to be given therein for the protection of the owner, subcontractor, workmen, laborer, mechanics, and furnishers of materials, for the recording of the same, and the proceedings to be had thereunder,' does not apply to the board of commissioners of the port of New Orleans, a corporate state agency, created for the purpose, among others, of constructing wharves and sheds for the accommodation of the shipping of said port. As a general rule public property is not subject to a mechanics' lien unless expressly made subject to such lien by statute.

John Dymon, Jr., and A. Giffen Levy, both of New Orleans, for appellant Barrett Mfg. Co.

James Wilkinson, of New Orleans, for appellant Board of Com'rs.

Rouse, Grant & Grant, of New Orleans, for appellee National Surety Co.

OPINION

LAND, J.

This is a suit by a furnisher of materials to a contractor employed by the defendant board to construct a certain freight shed on one of the wharves of the port of New Orleans.

The shed was completed and delivered, and the contract price was paid in full, more [133 La. 1023] than a month before notice of plaintiff's claim was given to defendant board.

Plaintiff seeks to hold said board liable as surety under Act 134 of 1906 for failing to exact and record a bond of the contractor for the payment of furnisher of materials, subcontractors, etc. The main defense is that Act 134 of 1906 has no application to the defendant board, a state agent, for the purpose of maintaining and constructing wharves, sheds, etc., in the interest of the commerce of the port of New Orleans.

There was judgment in favor of the defendant board, and the plaintiff has appealed.

The defendant board, as created by Act 70 of 1896, is a 'board of state commissioners,' appointed by the Governor, and vested with jurisdiction over the port of New Orleans, which extends beyond the limits of said city into the parishes of Jefferson and St. Bernard. The board was vested with power to regulate the commerce and traffic of the 'harbor of New Orleans,' to have and enjoy all the rights, powers, and immunities incident to corporations, to take charge of and administer the public wharves of the port of New Orleans, to construct new wharves and sheds when necessary, to provide for lighting and policing the same, etc., etc. The board was vested with power to levy and collect wharfage charges on shipping for the purpose of defraying the expenses of administration, maintenance, and construction. By Act 36 of 1900 the said board was empowered to acquire by purchase or expropriation wharves and landings within the limits of the port of New Orleans. By Act 180 of 1908, which was adopted as a constitutional amendment, the board was empowered to issue $ 3,500,000 of 5 per cent. negotiable bonds, the proceeds to be expended in the extension of existing wharves, for building new wharves, for erecting sheds, for constructing roadways and other improvements, for the purchase of suitable dredges, barges, and [133 La. 1024] tug boats, for the payment of wharves or other property purchased or expropriated, and for the payment of outstanding obligations. In order to secure the payment by preference of the principal and interest of said bonds, all revenues of the board collectible under existing laws were pledged. It follows from this legislation that the defendant board is a state agency, vested with certain powers, in the interest of the commerce of the port of New Orleans; that all of its revenues and funds have been dedicated to certain public uses; and that the board has and can have no corporate property or funds of its own to meet claims of the kind now urged by the plaintiff.

Plaintiff's demand is founded...