PARLANGE
District Judge.
The
mandate of the court of appeals to this court reverses the
judgment of this court heretofore rendered herein by my
predecessor and directs the dismissal of the bill unless, by
proper amendment and in accordance with the views expressed
by the supreme courts in this case, the jurisdiction of this
court be made to appear affirmatively. The complainant has
amended his bill by averring that the persons in whose favor
the claims accrued, and to whom the certificates were issued
are now, and were on February 9, 1891 (the date of the filing
of the bill), citizens of states other than the state of
Louisiana, and competent, as such citizens, to maintain suit
in this court against the defendants for the recovery of the
indebtedness represented by the certificates, if no
assignment or transfer thereof had been made. The states of
which the original certificate holders are averred to have
been citizens at the time of the filing of the bill, are not
named. Complainant's counsel referred in argument to a
list of the certificate holders filed with the bill as
Exhibit A, but that list furnishes no information whatever as
to the states of which the certificate holders were citizens
and if any inference is to be drawn from the list, it is that
the certificate holders were citizens of Louisiana.
In this
case four questions were submitted to the supreme court by
the court of appeals, to wit (153 U.S. 418, 14 Sup.Ct. 905):
'First.
Does the case made by the bill, alleging that the board of
police has been abolished, and left without successor or
legal representative, and no provision has been made for
the application of its assets to the payment of its debts,
and the answer herein, constitute a suit in equity arising
under the constitution of the United States and within the
jurisdiction of the circuit court of the United States for
the Eastern district of Louisiana, without regard to the
diverse citizenship of the parties?
'Second.
The warrants and the certificates held by the complainant
having been issued for services rendered and supplies
furnished under contract with the board of metropolitan
police, when the laws required said warrants and
certificates to be received by the defendants in payment of
all licenses, taxes, and other dues, and all such laws
having been repealed by the legislature of Louisiana,
without making other provision for the redemption of said
warrants and certificates, was this an impairment of the
obligation of the contract in relation to such warrants and
certificates, within the meaning of article 1, Sec. 10, of
the constitution of the United States?
'Third.
Do the pleadings show a suit to recover the contents of
choses in action within the meaning of the judiciary act of
1887 and 1888, so as to preclude the complainant, as
assignee, from suing, in the circuit court of the United
States, to establish a fund out of which, he, in common
with other creditors of the late metropolitan police board,
may be paid pro rata upon their claims?
'Fourth.
Considering all the allegations in the bill of complaint,
and the provisions in the constitution and laws of
Louisiana respecting the metropolitan police board and the
metropolitan police warrants and certificates, and the
redemption and payment of said certificates, does the case
show a liability on the part of the city of New Orleans to
contribute to a fund for the payment of said warrants and
certificates beyond its liability for taxes assessed and
collected in pursuance of the apportionments made?'
The
first question was answered in the negative; the third, in
the affirmative; and while the second question was not
answered directly, the language of the supreme court (153
U.S. 429, 431, 432, 14 Sup.Ct. 905) makes it clear that, if
the court had deemed it necessary
to directly answer the second question, the court would have
answered it in the negative.
The
grounds of equitable cognizance relied upon in this case
were, after the citation of authorities believed by
complainant's counsel to be applicable, set out in the
brief of complainant's counsel, filed in the supreme
court, as follows:
'The
destruction of the board of policy by the repealing act
deprived its creditors of their action at law against it
for the enforcement of their demands, and left them without
remedy, except in a court of equity, which * * * 'will
lay hold of its property and administer it' for their
benefit. Judgment at law and fruitless execution are not
required, because impossible in the absence of an existing
debtor. * * * And it has been held by this court (the
supreme court) that, by the French jurisprudence which
prevails in Louisiana, a creditor may exercise the right of
action of his debtor, and that 'the right thus claimed
for the creditor may very properly be pursued in a suit in
equity, since it could not be pursued in an action at law
in the courts of the United States, and all existing
rights, in any state of the Union, ought to be suable in
some form in those courts.' City of New Orleans v.
Gaines' Adm'r, 131 U.S. 191-213, 9 Sup.Ct.
745.'
The
supreme court distinctly states that the above are the
grounds of equitable cognizance relied upon. I read the
opinion (153 U.S.,at page 428 et seq., 14 Sup.Ct. 905):
'The
jurisdiction in equity in this case is found in the
inadequacy of the remedy at law, either because the rights
claimed could not be enforced at law, or because they could
not be administered in that forum. The bill was manifestly
framed to bring the case within the class in which
receivers are appointed to collect the assets and pay the
creditors of a dissolved corporation. Broughton v.
Pensacola, 93 U.S. 266, 268; Meriwether v.
Garrett, 102 U.S. 472, 527. Indeed, it was expressly
averred that the state courts had proceeded upon that
principle in respect of similar warrants and certificates;
and reference was made, in terms, to a decision of the
supreme court of Louisiana in that behalf. Harrison v.
City of New Orleans, 40 La.Ann. 509, 4 So. 133. The
contention was that the holders of these warrants had a
right to bring an action at law against the board of police
to recover thereon, and that the dissolution of the board
left the complainants without remedy except in a court of
equity; judgment and execution at law not being required,
because impossible, by reason of the dissolution of the
board. Therefore, the court in chancery
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