City of New Orleans v. Kerr

• Decision Date: 07 February 1898
• Docket Number: 12,467
• Court: Louisiana Supreme Court
• Parties: CITY OF NEW ORLEANS v. GEORGE P. KERR AND JOHN GALLY

23 So. 384

50 La.Ann. 413

CITY OF NEW ORLEANS v. GEORGE P. KERR AND JOHN GALLY

No. 12,467

Supreme Court of Louisiana

February 7, 1898

Argued November 29, 1898.

Rehearing Refused April 4, 1898.

APPEAL from the Civil District Court for the Parish of Orleans Rightor, J.

James J. McLoughlin, Assitant City Attorney, and Samuel L. Gilmore City Attorney, for Plaintiff, Appellee.

John C Wickliffe and Joseph N. Wolfson, for Defendants, Appellants.

OPINION

BLANCHARD, J.

This is an action brought by the city of New Orleans against the defendants for a balance due upon a sale or lease of the franchise or right to impound stock within the city's limits, and to receive the fees therefor.

Defendant Kerr, who was the pound contractor, answered that while there was an apparent balance due the city on his contract, he was absolved from liability therefor by reason of flagrant breaches of the contract on the part of the city in failing to give him proper police protection in the discharge of his duties as pound keeper, without which his contract was unavailing, and in harassing and annoying him through its officers and agents.

Then, assuming the character of plaintiff in reconvention, he set up a claim against the city for nine thousand three hundred and twenty-two dollars and thirty-seven cents for damages accruing to him by reason of the breaches of contract aforesaid. This claim is set forth with much detail.

The judgment below was against both parties. It rejected plaintiff's original demand and that of defendant in reconvention.

Defendant alone appeals, and the case is before us only as to the reconventional demand of the latter.

Defendant's contract with the city was entered into on the first of May, 1891, and was for the term of one year. The Mayor, who executed the contract on behalf of the city, was specially authorized thereto by ordinances of the City Council, and the formal contract was in confirmation of a sale and adjudication of the pound franchise previously made to defendant.

The words used are that the city "does by these presents grant, bargain, sell and confirm" unto the defendant "the revenues of the public pound" for the period named.

The ordinances of the city relative to the impounding of stock were referred to in the instrument, and the principal one was copied bodily into it as a part of the contract.

One section of this ordinance declares that all animals found upon the streets contrary to its provisions "are to be taken up by the police, the contractor or his assistants and placed in the nearest pound," etc.

Another section provides "that it shall be the duty of the city police to render such service or assistance as may be necessary to the pound keepers in the discharge of their duty."

Some four or five months after the contract became operative, another ordinance was adopted by the City Council, which, after first declaring that experience had shown the impracticability of enforcing the pound contract without proper police protection and that it was the duty of the city police to render such assistance as was necessary to the pound keeper, his assistants and employees in the discharge of their duty, proceeded to request the Board of Police Commissioners to instruct the superintendent of police to make a permanent detail of two officers for the purpose.

Still later, and about a month before defendant's contract was to expire, further action was taken by the City Council in the form of a motion adopted requesting the Mayor to direct the superintendent of police to require the strict enforcement of the preceding ordinance relative to pounds, and calling upon the several recorders of the city to see to the enforcement of the same, and admonished them that in case of failure to do so they would be held amenable to the council for dereliction of duty.

These several corporate acts are practical admissions that theretofore the city ordinances relating to the impounding of stock and the city's obligation to the pound contractor with reference thereto had not been adequately enforced.

And the testimony taken leaves no doubt upon the mind of the truth of this fact.

It was not possible to carry out the contract without police protection and assistance.

The contractor, his drivers and assistants were threatened, assaulted, beaten and driven off.

Cattle and other stock taken up and on their way to the pounds were rescued by mobs.

Frequent arrests of the defendant were made on charges of illegal conduct in carrying out the contract, on all of which charges, save one, he was acquitted, and as to the one upon which he was convicted, he was subsequently released on a writ of habeas corpus.

Once he was locked up all night and part of a day in the city prison on a trumped-up charge.

One of his pounds was broken into by police officers claiming to act under order of the then acting Mayor, and a horse impounded released.

Other acts of misfeasance and non-feasance of the police and other city officials, in reference to defendant and his contract with the city, are shown.

He was not furnished the necessary police protection and assistance, and for the greater part of the time it was withheld from him entirely.

Indeed, it is shown that the then Mayor gave an order that no police protection be given defendant, and that because of this order the Chief of Police refused details of policemen.

The record teems with evidence of application after application made by defendant and his attorney for police protection and assistance.

There is no room for doubt that the contractor was ready at all times to carry out his contract, willing and anxious to do so and zealous in his efforts thereunto. So much so, in fact, that it resulted in numerous complaints lodged against him.

That he may in instances have overstepped the limits of a just discretion in the manner of its execution, is probable. But there was a proper way of meeting this and of dealing with him in regard thereto without withholding the protection and aid of the police necessary to the legitimate execution of his duties under the contract and guaranteed to him by the instrument evidencing the same.

The amount he was to pay to the city monthly under his contract was thirty-one dollars.

That he did not pay all the monthly instalments and owed a balance of two hundred and seventy-one dollars, which the city sued for herein, is explained by him on the ground of the city's failure to meet its obligations to him under the contract.

The way defendant was to be compensated for the work done under his contract was by fees collected on animals impounded, and the evidence shows the franchise was a valuable one, and, perhaps, lucrative, if adequate police protection and assistance had been extended him.

The powers and obligations of municipal corporations, like the city of New Orleans, are twofold in character: those that are of a public nature and those that are of a private nature.

This court by repeated decisions has recognized this distinction. 1 An. 437; 9 An. 461; 12 An. 190, 482; 14 An. 120; 26 An. 478.

As to the first, or public character of its powers and obligations, the municipal corporation represents the State -- discharging duties incumbent on the State. As to the second, or private character of its powers and obligations, the municipal corporation represents the pecuniary and proprietary interests of individuals.

As to the first, where a municipal corporation acts as the agent of the State, it becomes the representative of sovereignty and is not answerable for the non-feasance or malfeasance of its public agents.

As to the second, the rules which govern the responsibility of individuals are properly applicable. Am. and Eng. Ency. of Law, Vol. 15, p. 1141; Western College...