United States v. New Orleans

• Citation: 25 L.Ed. 225,98 U.S. 381
• Parties: UNITED STATES v. NEW ORLEANS
• Decision Date: 01 October 1878
• Court: United States Supreme Court

98 U.S. 381

25 L.Ed. 225

UNITED STATES v. NEW ORLEANS.

October Term, 1878

ERROR to the Circuit Court of the United States for the District of Louisiana.

This was a petition presented in April, 1876, by Morris Ranger, the relator, for a writ of mandamus to compel the city of New Orleans to pay three judgments. The petition alleges that he had recovered them in the Circuit Court of the United States for an amount exceeding in the aggregate $59,000 against the city, on its bonds and coupons issued under the provisions of acts of the legislature of Louisiana, passed on the 15th of March, 1854, and designated as Nos. 108 and 109; that executions had been issued upon the judgments and returned unsatisfied; and that there was no property belonging to the city subject to seizure thereon.

It also alleges that in June, 1870, the city had sold eighty thousand shares of stock of the New Orleans, Jackson, and Great Northern Railroad Company, which it held, for the sum of $320,000, and that by the act No. 109, of 1854, these shares were for ever pledged for the payment of the bonds issued under its provisions; that the city should therefore be compelled to pay out of their proceeds so much of the judgments as appears on the face of the records to have been rendered upon the bonds; or, in case their payment cannot be enforced in this way, that it should be compelled to levy and collect a tax for that purpose, and also a tax to pay so much of the judgments as was rendered upon bonds and coupons issued under the act No. 108, of 1854; but that the mayor and administrators, who represent and exercise the powers of the city, refuse to pay the judgments out of any funds in their possession or under their control, or to levy a tax for their payment. The relator therefore prays the court to order them to show cause why a writ of mandamus should not be issued compelling them to apply the proceeds and to levy a tax as mentioned.

The order to show cause was accordingly issued; and the city authorities appeared and filed an answer to the petition, in which they admitted the recovery of a judgment by the relator,—speaking of the three judgments as one,—the issue of executions thereon, and their return unsatisfied, the sale of the eighty thousand shares of the capital stock of the New Orleans, Jackson, and Great Northern Railroad Company for $320,000, and the receipt of the money by their predecessors and set up as a defence to the prayer of the petition that the judgment was recovered upon certain bonds issued by the city to that company under the act of March 15, 1854, No. 109, making no mention of the act of No. 108; that no tax for the payment of the principal of the bonds is directed to be levied by that act or any other act of the legislature; that, as respects the interest on the bonds, provision is made for its payment out of the back taxes due to the city, and inserted in its budget for 1876; and that the proceeds arising from the sale of the stock of the railroad company are not in the treasury of the city or under their control, having been used and expended by their predecessors. They therefore prayed that the petition be dismissed.

The relator demurred to this answer. The court overruled the demurrer and refused the writ; and from its judgment the case is brought to this court.

The city of New Orleans was incorporated under the name of 'the mayor, aldermen, and inhabitants of the city of New Orleans,' by an act of the legislature, approved Feb. 17, 1805, the sixth section of which provides:——

'The said mayor and city council (aldermen) shall have power to raise by tax, in such a manner as to them may seem proper, upon the real and personal estate within said city, such sum or sums of money as may be necessary to supply any deficiency for the lighting, cleansing, paving, and watering the streets of said city; for supporting the city watch, the levee of the river, the prisons, workhouses, and other public buildings, and for such other purposes as the police and good government of the said city may require.'

An act approved March 8, 1836, amending that act, constituted in effect a new charter, and divided the city 'into three separate sections, each with distinct municipal powers.'

The fourth section provided:——

'Each of said municipalities shall possess separate corporate rights, and are hereby declared to be distinct corporations, and shall possess generally such rights, powers, and capacities as are usually incident to municipal corporations, . . . and, in general shall possess and exercise within their respective limits all such powers, rights, and privileges as are now possessed by the corporation of New Orleans.'

The three municipalities thus created were, with the city of Lafayette, consolidated into one, by acts approved Feb. 23, 1852. Acts La., 1852, Nos. 71, 72, pp. 42, 55.

Sect. 1 of the former act provides:——

'All that portion of the parish of New Orleans on the left bank of the river Mississippi shall be the city of New Orleans, and all the free white inhabitants thereof shall be a body corporate by the name of the 'city of New Orleans,' and by that name they and their successors shall be known in law, and shall be capable of suing and being sued,' &c.

Sect. 22 provides:——

'That upon the first organization of the common council of the city of New Orleans, as hereinbefore provided, the city of New Orleans, as established by this act, shall be vested with all the powers, rights, privileges, and immunities incident to a municipal corporation, and necessary for the proper government of the same; and upon the said organization of said council all the powers, rights, privileges, and immunities possessed and enjoyed by the first, second, and third municipalities of New Orleans, and by the general council of the city of New Orleans, shall cease and terminate so far as regards the said municipalities and general council, and be vested in the city of New Orleans, as established by this act.'

Sect. 37 provides that the old city debt (prior to 1836) and the debts of the separate municipalities shall be assumed by the city of New Orleans, and that bonds shall be issued therefor, to be called the 'consolidated debt;' and that 'from and after the passage of this act no obligation or evidence of debt of any description whatever, except those herein authorized, shall be issued by the city of New Orleans or under its authority; nor shall any loan be contracted, unless the same be authorized by a vote of the majority of the qualified voters of said city, which shall be taken in the manner prescribed by the city council, after ten days' proclamation by the major, in the newspaper chosen by the city council; and no ordinance creating a debt or loan shall be valid unless such ordinance shall provide ways and means for the punctual payment of running interest during the whole time for which said debt or loan shall be contracted, and for the full and punctual discharge at maturity of the capital borrowed or debt incurred; and such ordinance shall not be repealed until the principal and interest of the capital borrowed or debt incurred are fully paid and discharged.'

In 1854, the legislature passed two acts by which the city was authorized to subscribe to the stock of the New Orleans, Opelousas, and Great Western Railroad Company, and the New Orleans, Jackson, and Great Northern Railroad Company, and to make the subscription immediately payable in bonds of the city, for $1,000 each, having twenty years to run, &c., and requiring the repeal of ordinances authorizing former subscriptions.

The terms of the two last-named acts, mutatis mutandis, are identical. Acts La., 1854, Nos. 108, 109, pp. 69, 72.

The act authorizing the subscription to the stock of the New Orleans, Jackson, and Great Northern Railroad Company provided, among other things, as follows:——

'SECT. 1. Be it enacted by the Senate and House of Representatives of the State of Louisiana, in General Assembly convened, that it shall be lawful for the common council of the city of New Orleans to subscribe to the stock of the New Orleans, Jackson, and Great Northern Railroad Company, in a sum not exceeding $2,000,000.

'SECT. 2. Be it further enacted, &c., that any ordinance authorizing such subscription shall contain the following provisions, to wit:——

'1st, A statement of the number and amount of shares for which the city subscribes.

'2d, That the subscription of the city shall be made by the mayor, and shall be payable in bonds of said city for $1,000 each, having twenty years to run, bearing interest at the rate of six per cent per annum, with interest-coupons attached, payable semiannually in New Orleans or New York, as the company entitled to receive them may prefer, transferable by the indorsement of the president and secretary of said company, and convertible into the stock of said company at the option of the holders, at any time within ten years after their date '3d, That a special tax on real estate and slaves shall be levied in January of each year, sufficient to pay the annual interest on said bonds, specifying the rates of said tax, which shall be collected at the same time and in the same manner as the consolidated loan tax of said city; and all ordinances, resolutions, or other acts passed by said council, after the first day of January in each year, except an ordinance to impose said consolidated loan tax, and an ordinance to impose a tax for the payment of interest on bonds which may be hereafter issued for subscription to the New Orleans, Opelousas, and Great Western Railroad Company, shall be null and void, unless a resolution imposing a special tax for the payment of the interest on said bonds issued to the railroad company herein named shall have been previously passed: Provided, that no levy of a tax for the payment of interest on said bonds shall be made after the payment of dividends of six per cent per annum on the stock of...