Gurley v. City of New Orleans

• Decision Date: 01 January 1889
• Docket Number: 10,196
• Citation: 41 La.Ann. 75,5 So. 659
• Court: Louisiana Supreme Court
• Parties: J. WARD GURLEY, JR., v. THE CITY OF NEW ORLEANS

5 So. 659

41 La.Ann. 75

J. WARD GURLEY, JR., v. THE CITY OF NEW ORLEANS

No. 10,196

Supreme Court of Louisiana

January 1, 1889

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

Henry Denis and Harry H. Hall, for Plaintiff and Appellant.

Carleton Hunt, City Attorney, for Defendant and Appellee.

BERMUDEZ C.J. Mr. Justice Poche, not having heard the argument, takes no part.

OPINION

POCHE J.

The purpose of this suit is to enjoin the City of New Orleans from obstructing the execution of a contract which the plaintiff claims to have entered into with her, for the collection of certain back taxes, under certain terms and conditions, and which she pretends to have revoked and repudiated.

From an interlocutory decree refusing a preliminary injunction, and from a judgment sustaining an exception of no cause of action and rejecting the demand, the plaintiff appeals.

We deem it unnecessary to pass formally upon the correctness of the decree, for the reason that if it be true that the petition discloses no cause of action, it would follow, as a matter of course, that the preliminary injunction was properly declined, as, no such remedy can issue without sufficient showing -- the converse proposition being equally true.

The plaintiff, an attorney-at-law, substantially avers in his petition that, by notarial act passed on the 19th of June, 1886, he entered into a contract with the City of Orleans, by which he undertook to recover and collect the taxes due the said city for the years 1880, 1881, 1882, 1883 1884 and 1885; that this contract was made under the terms of an ordinance of the City Council and by proper and legal authority; that the stipulations between the contracting parties were all to the advantage and benefit of the city and onerous to plaintiff; that he has faithfully and diligently fulfilled all his obligations under said contract, at a great expense of money and labor, and is still actively engaged in the execution of said contract; but that the City Council, without any legal cause or reason, is attempting to set the same aside and pretends to repeal and annul the ordinance under which it was entered into.

Both the ordinance and contract are annexed to the petition as parts thereof. They set forth the nature of the services to be rendered and the compensation to be received therefor.

In order to determine whether this petition discloses a cause of action, it is necessary to consider the nature of the relations created between the parties, their legality, the term of their existence.

It is apparent, from the face of the ordinance on which the plaintiff relies, that its effect was to authorize the City Attorney to select a competent and suitable counsel for the collection of certain back taxes, under his supervision and control and that of the City Treasurer, who should receive certain remuneration, under certain onerous conditions, which it would serve no useful purpose here to set forth specifically.

It is also apparent that this ordinance was passed in consideration of section 24 of the City Charter of 1882, which provides, that the City Attorney shall have the appointment of all assistants or assistant counsel that the Council may allow him.

It is also apparent from the ordinance and from the act subsequently passed in furtherance of it, that the attorney chosen was to be and became an assistant counsel of the city, attached to the department of the City Attorney, under whose supervision and control he was to remain.

This is so true, that the plaintiff presses in his brief, that he has so been appointed, contending that this section of the law, far from being prohibitory of his appointment, is an affirmative grant of authority for the same.

The plaintiff then became a municipal officer, attached to the City Attorney's staff, for a term co-extensive with that of this head of the legal department, ceasing to be such, when that term expired.

The charter making no provision for the salary, pay, or compensation of such assistant counsel, the city undertook to provide for the same, in the manner and to the extent, specified in the ordinance.

From this aspect of the relations between the plaintiff and the city, it clearly results that the ordinance and alleged contract under it, became inoperative as to him, the very moment that the City Attorney ceased to be, by the limitation of his term, a municipal officer.

It is not claimed, nor could it be, that the ordinance contemplated any undertaking by the plaintiff in his individual capacity. Hence, no pretension can be raised by the plaintiff that his rights, under the ordinance, continued in him individually after the term of office of the City Attorney had determined, which it did, in 1888, previous to the adoption of the ordinance complained of by the plaintiff.

Were it otherwise, however, the ordinance can be viewed only as an act of mandate conferring on an agent, a representative, the power of collecting debts due his principal, and allowing him an eventual compensation for his services.

It is not correct to say that the ordinance and the notarial act, in execution of it, constitute a contract which is not revocable, otherwise than by the consent of both parties.

It is perfectly true that as a rule a procuration is gratuitous, but the very text which so declares, provides, "unless there has been a contrary agreement." R. C. C. 2991.

Under our Code, which has modified the Roman law, as well as under the French Code, the gratuitousness does not appertain to the essence but only to the nature of the mandate. Hence a derogation to the early rule is allowed by a formal or express stipulation; so much so, that the exceptions have become the rule and the rule the exception, as seldom indeed is it, that an agent acts without indemnity and by pure friendship.

Laurent says that the exception has absorbed the...