United States v. Capdevielle

• Decision Date: 25 November 1902
• Docket Number: 1,157.
• Citation: 118 F. 809
• Parties: UNITED STATES ex rel. KILPATRICK et al. v. CAPDEVIELLE et al.
• Court: U.S. Court of Appeals — Fifth Circuit

118 F. 809

UNITED STATES ex rel. KILPATRICK et al. v. CAPDEVIELLE et al.

No. 1,157.

United States Court of Appeals, Fifth Circuit.

November 25, 1902

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

R. De Gray, John D. Rouse, and Wm. Grant, for plaintiffs in error.

Frank B. Thomas, for defendants in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

After stating the facts as above, PARDEE, Circuit Judge, .

In directing a verdict for the defendants in error, the presiding judge assigned no specific reasons. The defense insisted upon in the court below, and now in this court, is based upon two propositions: First, that Act No. 5 of the Extra Session of the Louisiana Legislature in 1870 affords the only remedy to which the plaintiffs in error can resort for the enforcement of their decree, and said act prohibits the granting of an mandamus for the collection of the judgments against the city of New Orleans; and, second, that since June 7, 1876, when it is claimed the debt now merged in the Jackson decree was contracted, up to the present time, the city has had no unexercised power of taxation, and that the present rate authorized by law is twenty-two (22) mills on the dollar, all of which has been levied. Act No. 5 of the legislature of Louisiana of 1870 ought not to be permitted to defeat the relator's right to a mandamus, because, as held by the supreme court of the state in Marchand v City of New Orleans, 37 La.Ann. 13, said act is not always controlling in the state courts, while the jurisdiction of the federal courts to issue writs of mandamus to enforce judgments is not derived from the state law, but ex necessitate, and from the fourteenth section of the judiciary act of 1789, now section 716 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 580). See Riggs v. Johnson Co., 6 Wall. 166, 18 L.Ed. 768; Bath Co. v. Amy, 13 Wall. 244, 20 L.Ed. 539; Rosenbaum v. Bauer, 120 U.S. 450, 7 Sup.Ct. 633, 30 L.Ed. 743. Also, see Railroad Co. v. Hart, 114 U.S. 654, 661, et seq., 5 Sup.Ct. 1127, 29 L.Ed. 226. We do not understand that the defendants in error claim that since the drainage assessments were levied the authorized maximum limit of taxation on the part of the city of New Orleans has always been reached. In fact, the proof shows that in the years 1873, 1874, and 1875 the full limit was not reached. The contention that the debt of the city of New Orleans which the relator is now seeking to enforce originated in 1876 on the issuance of the drainage warrants to Van Norden, and not prior thereto, when the assessments for drainage were levied, is in direct conflict with the terms of the decree rendered in favor of Jackson, and also, with the opinion of the supreme court of the United States in City of New Orleans v. Warner, 175 U.S. 120, 144, 20 Sup.Ct. 44, 54, 44 L.Ed. 96, from which we quote as follows:

'The act of 1876 did not so much authorize an increase of the city's debt as a diversion of the warrants to the purchase of the drainage plant, instead of a payment to the transferee for work done. We think the amendment should receive a construction commensurate with the object intended to be accomplished, namely, the drainage of the city, whether such drainage were carried out by Van Norden or by the city itself, and that it should not be limited to such warrants as were to be issued for the work. The debt for the assessments had already been incurred and put in judgment, and the amendment was intended to recognize the existence of such debt, and to provide that the warrants issued in payment of the same should not be treated as within the scope of the amendment. Beyond this, however, these warrants were to be issued not only in payment of the drainage plant, but in settlement of Van Norden's claims against the city for damages connected with the failure of the city to carry out its contract with the canal company and Van Norden, which, in view of the fact that the drainage plant had been purchased by him for $50,000, may be assumed to have been the greater part of the consideration. Indeed, it is open to serious consideration whether the reservation of drainage warrants in the constitutional amendment of 1874 was necessary, in view of the fact that the assessments had already been reduced to judgments against the city and the property owners, and that the further issue of drainage warrants was rather in the nature of the payment of a debt already incurred than the creation of a new obligation.'

From this statement of the case it clearly appears that the answer of the defendants presents no sufficient reason why the mandamus prayed for should not issue, and that the same might well have been restricted to a general denial to put the relators on proof.

The plaintiffs in error have specifically assigned as errors many possible rulings of the court below necessitating a judgment as directed, but we think the third assignment, to wit:

'It appearing from the undisputed evidence that the judgment of relators was based on an extraordinary

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