United States v. Board of Liquidation of City Debt of New Orleans

• Decision Date: 02 January 1894
• Docket Number: 165.
• Citation: 60 F. 387
• Parties: UNITED STATES ex rel. FISHER et al. v. BOARD OF LIQUIDATION OF CITY DEBT OF NEW ORLEANS.
• Court: U.S. Court of Appeals — Fifth Circuit

60 F. 387

UNITED STATES ex rel. FISHER et al. v. BOARD OF LIQUIDATION OF CITY DEBT OF NEW ORLEANS.

No. 165.

United States Court of Appeals, Fifth Circuit.

January 2, 1894

The plaintiffs in error, relators in the circuit court, filed their petition against the board of liquidation of the city debt of New Orleans, therein alleging that the relators had obtained judgment in said circuit court against the board of school directors of the city of New Orleans for the sum of $8,097.17, with 5 per cent. interest from May 22, 1890; that the said judgment was final and executory; that a writ of fieri facias had been issued against the defendant, and had been returned nulla bona; that, under the provisions of Act No. 74 of 1880, relators were entitled to have their said judgment liquidated in bonds of the city of New Orleans provided for under said act; that relators were also entitled, under Acts Nos. 67 of 1884 and 110 of 1890, to have the same funded, and to obtain the new constitutional bonds provided for in such cases; and that the relators had made amicable demand for the issuance of said bonds. The prayer of the petition was that a writ of mandamus issue, ordering the board of liquidation of the city debt to issue to petitioners the bonds of the city of New Orleans, in such cases provided for the full amount of principal, interest, and costs, of the judgment aforesaid. Upon the said petition an alternative writ of mandamus was issued, and the e-upon the board of liquidation of the city debt filed an answer at length in substance, that the judgment of the relators was based upon certificates of alleged indebtedness issued by the board of school directors of the city of New Orleans for asserted salaries of teachers and expenses of said board, and that the said certificates upon which the judgment was founded, and the judgment, were the obligations solely of the board of school directors, and not the obligations of the city of New Orleans or of the board of liquidators; that Act No. 74 of 1880, in so far as it undertook to authorize the issue of bonds by the city of New Orleans for salaries of school teachers of school expenses, was wholly void, and of no effect; that the said act was abortive, and no bonds were ever issued under it, and that it had been superseded and made void and of no effect, as well because of its unconstitutionality as by the effect of subsequent legislation providing for the issuance of bonds and the levies of taxes to pay them, referring to Acts No. 133 of 1880, Nos. 57 and 68 of 1882, the constitutional amendment of 1890, and Act No. 110 of that year; that, in the suit of the relators against the city of New Orleans in the civil district court of the state, it was finally adjudged by the said court, as well as by the supreme court of the state on appeal, that the relators had no demand whatever against the city of New Orleans on said certificates on which their judgment is founded, and the said judgment is now res judicata; further, that under the law the bonds of the city can be issued by the board of liquidation only for judgments against the city for debts of the city contracted prior to 1879; that the relators have no judgment against the city and that the board of liquidation is not only not authorized to issue bonds for relators' judgment, but is prohibited from such issue; and refers to the acts creating the board of liquidation, defining its powers, and to all the legislative acts in relation thereto. On the issues thus made, the parties waived trial by jury, and submitted the cause to the court. On the trial, the plaintiffs offered the testimony of John L. Newman and John E. Roux, and various ordinances of the city of New Orleans, and also the report of the city comptroller, all of which testimony and evidence tended to prove that the city of New Orleans had reduced and canceled assessments on which a large amount of the school taxes was based for the years between 1872 and 1879, such as would satisfy plaintiffs' claim, and had also remitted to the same extent school taxes also, that the city tax was divided into a police tax, interest tax, park tax, and school and general tax, all of which stood on the same footing as the school tax, and that the indebtedness against each of said particular revenues had been funded, with the exception of the school indebtedness. Objection was made to said evidence on the ground that it was irrelevant, and could be of no effect in the cause, which objection was maintained by the court, and the evidence ruled out. The judgment of the circuit court, to enforce which the writ of mandamus was asked for, is as follows: 'It is ordered, adjudged, and decreed that the plaintiff, Mrs. M. Fisher, and her husband, M. M. Fisher, have judgment in her favor, and against the board of directors of the city schools of New Orleans, for the sum of $8,097.17, with five per cent. interest per annum from May 22, 1890, and costs, payable out of the school tax levied by the city of New Orleans prior to 1879.' The court below refused the mandamus, for the reason that the relators have no judgment against the city of New Orleans, and it is only judgments against that municipal corporation which, under the existing law, can be dealt with and funded by the board of liquidation.

Charles Louque, for plaintiffs in error.

Henry C. Miller, for defendant in error.

Before PARDEE and McCORMICK, Circuit Judges, and LOCKE, District Judge.

PARDEE Circuit Judge (after stating the facts).

The first assignment of error is that the circuit court erred in excluding the evidence tending to show that a special tax had been levied by the city of New Orleans to pay the indebtedness held by the relators, a large amount had been reduced and canceled by the city, and all other claims had been funded, with the exception of the school indebtedness. The suit being one to compel the performance of a strictly legal and ministerial duty, the evidence in question was wholly irrelevant. If it had been admitted, it would only have tended to show an equity in favor of relators, and against the city of New Orleans, which could...