State ex rel. Board of Liquidation of City Debt v. Sommerville
| Decision Date | 28 October 1904 |
| Docket Number | 15,383 |
| Citation | 37 So. 476,113 La. 557 |
| Court | Louisiana Supreme Court |
| Parties | STATE ex rel. BOARD OF LIQUIDATION OF CITY DEBT v. SOMMERVILLE, Judge, et al |
Application by the state, on the relation of the board of liquidation of the city debt, for writs of prohibition certiorari, and mandamus to W. B. Sommerville, judge of Division D, acting for Fred D. King, judge of Division B, and others. Writs granted.
Branch K. Miller, for relator.
Respondent judge, pro se.
Relator applies for relief from an order of the district court refusing to grant it a suspensive appeal from an interlocutory judgment rendered on September 12, 1904, permitting the city of New Orleans, defendant (asserted owner of the property she sought to sell), to dissolve relator's injunction on bond.
The following is a statement with reference to the proceedings leading to the court's action in refusing to grant said appeal. The city of New Orleans had taken steps to sell certain property, consisting of sugar sheds, B and E. Relator, the board of liquidation of the city debt, claiming to be owner of these sheds, instituted suit against the city of New Orleans and her comptroller, setting up title to this property.
This title is claimed by the said relator by virtue of the provisions of section 5 of Act No. 133, p. 181, of 1880, section 3 of Act No. 67 of 1884, and Act No. 110, p. 144, of 1890, the constitutional amendment of 1892, and article 314 of the Constitution of 1898; and on this plaintiff petitioned for an injunction to prevent the city of New Orleans from selling the property, and upon its petition a rule issued against the defendant city to show cause why the writ of injunction should not be issued to prohibit the sale.
A short time thereafter, after having heard the parties on the trial of the rule, the court made an order granting the injunction.
On the day that this order was granted, the defendant city of New Orleans, availing herself of the provisions of article 307 of the Code of Practice, submitted to the court an application to dissolve the injunction on bond, which was granted.
The court dissolved the writ on condition that defendant furnish bond. Compliance with that part of the said condition was not required, in view of the exemption of defendant from furnishing bond.
Relator them filed a petition for a suspensive appeal from the order dissolving the injunction on bond, returnable to this court. The petition for and the order of appeal were refused on the ground that the bonding of the injunction did not cause an "irreparable injury," and hence that it was not appealable.
The contention of the relator is that the order allowing the defendant to bond the injunction would result in a sale of the property -- would cause irreparable injury -- for it, according to relator, in effect, would allow the comptroller to sell the property for the city pending relator's suit to be recognized as owner.
Relator sets forth that in consequence it is entitled to a writ of prohibition enjoining the respondent court from doing anything further in execution of the interlocutory order in question, dissolving the injunction on bond; and relator states that it is also entitled to a writ of mandamus, ordering the court to allow a suspensive appeal from the order dissolving the injunction on bond.
We are informed by the record that originally the court issued the injunction on a technicality invoked by plaintiff in injunction, relator here, and that it may well be that on the trial of the case on its merits the city may be able to meet and overcome this technicality and obtain a judgment, but that in the face of the papers, as set forth by the district court in its written reasons for issuing the preliminary injunction, the board of liquidation, relator here, was entitled to the writ, and for that reason the injunction applied for by the board of liquidation was allowed.
But afterward, on the application of the city of New Orleans to dissolve the writ of injunction on bond, as before mentioned, the court arrived at the conclusion that the writ would not cause irreparable damages, and granted the order to dissolve on bond, and refused the motion of relator for an appeal.
The ground urged by respondent is that there will be no irreparable injury, because the property is not owned, as claimed, by the board of liquidation, and that the board is not interested in whatever disposition may be made of it. We have to some extent looked into the question of the title claimed.
The board of liquidation is one of the subordinate corporations of the city.
The police board, the sewerage and water board, and others, together with the board of liquidation, are respectively invested with separate and distinct authority.
The first statute upon the subject created a syndicate which shall "constitute a board of liquidation of the city debt," and "the said board shall have exclusive control and direction of all matters relating to the bonded debt of the city of New Orleans." Act No. 133, p. 181, of 1880.
The board was to receive and control "all the property of the city of New Orleans, both real and personal, not dedicated to public use," and the board was empowered by this legislative act to dispose of this property on such terms and conditions as "deemed favorable"; the proceeds of the sale to be deposited with the fiscal agent of the board to the credit of the "city debt fund."
In the year 1884, Act No. 67 (another law) was enacted upon the subject, and amending the original act (of 1880) in some respects.
It again expressly made it the duty of the city of New Orleans to turn over and transfer to the board of liquidation all her property not dedicated to public use. A provision of the act sets forth that in the sale of batture property, which is herein included, "the right of the city to all future accretions shall be reserved, all assets of said city realized and to be realized, except such...
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