168 So. 293 | La. | 1936
On February 28, 1919, the town of Winnfield in Winn parish in this state entered into a contract with American-La France Fire Engine Company of Elmira, N.Y., for the purchase of one type 40 triple combination pumping engine, chemical engine and hose car Reg. No. 2548, for the price of $10,250, to be delivered within 120 days after *1045 the execution of the contract and acceptance by the company.
Under the terms of the contract, the sum of $250 was to be paid in cash within ten days after delivery and acceptance of the apparatus and equipment, and negotiable notes or warrants for the remainder were to be made, payable as follows: In three equal notes, one, two, and three years respectively, conditioned to bear 6 per cent. per annum interest from date of issue until paid.
The apparatus and equipment were delivered to the town of Winnfield July 22, 1919; the cash portion of the purchase price was paid; and negotiable notes of the town of Winnfield were then executed and delivered to the vendor for the unpaid portion of the purchase price, with interest at 6 per cent. per annum payable annually, and with reasonable attorney's fees, in case payment was not made at maturity.
The present plaintiff, for valuable consideration, has become the holder and owner of all the rights of the American-La France Fire Engine Company, Inc., under the sale to the town of Winnfield, by legal assignment and transfer.
The town of Winnfield has paid the American-La France Fire Engine Company, the original vendor, and the American-La France Foamite Industries, the assignee, the sum of $10,756.99 on the apparatus and equipment purchased.
The account became unsatisfactory in the year 1934, and the present plaintiff sued the town of Winnfield on two notes, one in the sum of $3,623.75, with 6 per cent. interest *1046 thereon from May 15, 1930, until paid, and the other in the further sum of $2,918.09, with 6 per cent. interest thereon from July 1, 1930, until paid, less the sum of $175 paid thereon on September 1, 1931; and in the further sum of 10 per cent. of the aggregate amounts due in principal and interest on said amounts as a reasonable attorney's fee, and for all costs of this suit, less the credits received thereon, to wit:
December 22, 1932, $300.00
January 3, 1933, $200.00
February 1, 1933, $250.00
February 28, 1933, $250.00
Plaintiff also claims a vendor's lien and privilege on the apparatus and equipment sold to the town of Winnfield, and the recognition and enforcement of its lien according to law, by preference and priority over all other persons.
Judgment was rendered in favor of plaintiff company in the amounts prayed for; but the claim of plaintiff to a vendor's lien and privilege on the property sold to defendant town was denied for the reason that the trial judge found that the fire apparatus and equipment so sold is public property dedicated to public use and is not subject to seizure and sale.
(1) In its answer the town of Winnfield specifically denies that plaintiff company is entitled to a vendor's lien and privilege, and alleges that the property purchased is public property, held in trust for the public by the municipality and is exempt from seizure.
The contract of sale of the apparatus and equipment by plaintiff company to the town *1047
of Winnfield comes clearly within the provisions of Act No.
Section 1 of Act No.
"Section 2. Be it enacted, etc., that the amount of certificates of indebtedness so issued shall not exceed in any one case the sum of $5,000.00, and shall not be issued *1048 for a longer period than 10 years; that the said Mayor and Board of Aldermen be, and they are hereby authorized in order to pay said certificates of indebtedness to appropriate, dedicate, and set aside in whole or in part the excess of annual revenues of subsequent years above statutory, necessary and usual charges not in excess of the limitation fixed by the Constitution of this State provided, that such certificates of indebtedness shall not have any longer terms fixed for payment than ten years from the date of the contract of purchase, and provided further, that no dedication of future revenues shall be made to which, alone or with other prior dedications in force, shall exceed the estimated excess of revenues over the statutory, necessary and usual charges of the year in which the agreement or contract is made."
Section 3 of Act No.
It is clear that Act No.
We fail to find in Act No.
Privileges cannot be extended by implication or analogy; they are never allowed *1049
but when expressly granted by law; and then only by virtue of an exact compliance with legal requisites, essential to their creation and existence. Civil Code, arts.
Besides, the requirement in Act No.
The statute, ex vi termini, dedicates fire apparatus and appliances purchased by a town or village to public use and forpublic protection against loss of life and property by fire. It is true that the title to such property is vested by the statute in the town or village. But it is clear that the title so vested in the town or village is merely as trustee for the public, for such property *1050 could not well be dedicated to public use and for public protection, and, at the same time, retain its status as theprivate assets of a municipality, subject to levy and sale under execution for the debts of the corporation.
Property dedicated to public use is owned by the public and is exempt from seizure and sale for municipal debts. Granting liens on public property is against public policy. Town of Farmerville v. Commercial Credit Company,
The rule is thus stated in 17 R.C.L., par. 43, p. 145: "As a general proposition an execution can not be levied against the property of a county, state or municipal corporation in the absence of a statute expressly granting such right in express terms. Even where such right is granted, however, it is generally the rule that an execution cannot be levied on any property held by a municipality or other public corporation for public purposes, such as public buildings, school houses, streets, alleys, and public squares, parks, promenades, waterworks, hoseand hose carriages, engines and engine houses and engineering instruments, the principle being that the title to such property is held in trust for the public and hence can no more be sold to settle the debts of a city or other political subdivision than can any other trust property be sold to settle the individual debts of any other trustee." (Italics ours.)
It would be anomalous indeed for this court to hold that a fire station or engine house was dedicated to public use; but that hose and hose carriages and fire engines *1051 housed therein were the private assets of a municipality and could be seized and sold under a vendor's privilege for the debt of the corporation.
Conceding that the sale of the fire apparatus and appliances to the town of Winnfield was a Louisiana contract, and that ordinarily the vendor has a privilege on the price of the thing sold under article
In Porter v. Town of Ville Platte,
Judgment in personam was rendered against the town of Winnfield in the lower court in the present case. We find no error in the judgment appealed from.
Judgment affirmed.
*1052O'NIELL, C.J., absent.