Kaill v. Board of Directors

194 F. 73 | 5th Cir. | 1912

PARDEE, Circuit Judge

(after stating the facts as above). [1] Neither the original nor amended answer was sufficient, nor do the agreed facts shown by the evidence warrant the judgment of dismissal of plaintiff’s petition. All questions of the indebtedness of the defendant to the plaintiff and the validity thereof are settled by the judgment. The question was before this court on very similar facts in Mayor, etc., of City of New Orleans v. U. S. ex rel. Stewart, 49 Fed. 40, 1 C. C. A. 148, and Judge Locke, for the court, said;

“The question as to whether the debt for the collection of which a mandamus was prayed was a liability of the city of New Orleans or not: has been determined by the judgment, if there could have been any defense made to the action on account of the debt having been contracted for the'purposes of the year 1882, and not paid from the revenues of that year, and therefore involving the accumulation of an indebtedness such as was prohibited by the act of 1877, it should have been made at the trial of the cause in the court below”

; — citing United States v. New Orleans, 98 U. S. 395, 25 L. Ed. 225, as follows:

“In the present ease the indebtedness of the city of New Orleans is conclusively established by the judgments recovered. The validity of the bonds upon which they were rendered is not now open to question. Nor is the payment of the judgments restricted to any species of property or revenues or subject to any conditions. The indebtedness is absolute. If there were any question originally as to a limitation of the means by which the bonds were to be paid, it is cut off from consideration now by the judgments. If a limitation existed, it should have been insisted upon when the suits on the bonds were pending, and continued in the judgments. The fact that none is thus continued is conclusive on this application that none existed.”

This is no longer an open question. See United States v. New Orleans, supra; and see 9 Rose’s Notes, p. 641.

[2] This view of the case renders it unnecessary to determine whether section 73 of Act 81 of Rouisiana Laws 1888 (see Session Acts 1888, p. 108) is still in force or has been repealed by Act No. 214 of 1902, a matter to which most of the argument in this case has been directed, and in regard thereto we only say that the process by which the courts of the United States execute their judgments is not controlled by state law. Hart v. City of New Orleans (C. C.) 12 Fed. 292; s. c., 118 U. S. 136, 6 Sup. Ct. 995, 30 L. Ed. 65.

In Mayor, etc., New Orleans v. U. S. ex rel. Stewart, supra, Judge Bruce said:

“I concur in the conclusion and judgment of my Brother Locke in this case. It is my opinion that it was the duty of the common council of the city to put the relator’s judgment upon the budget for the year 1891; that it was an act ministerial in its character, and mandatory, under the provisions of the Act of Ex. Sess. 1870; that it was not within the discretion of the common council to postpone the relator’s judgment upon the ground, that all the revenues of the city for the year 1891 are required to provide for what is called the alimony of the city, or on any other ground, and that the decisions of the Supreme Court of the state cannot be held, upon a fair consideration, to have settled the law in Louisiana otherwise.”

And the decree of the court was:

“We find, therefore, no error- in the action of the court below, and the judgment for a peremptory writ of mandamus must be affirmed, with costs; but so much time has -been occupied by the delays of this case that the budget of 1891 may no longer be available, and it is ordered that this case be remanded to the court below, with instructions that a peremptory writ of mandamus issue, commanding the respondents herein to appropriate and pay from any appropriation of 1891, of which there is any surplus remaining in the treasury after all liabilities and expenditures have been paid, as contemplated in section 5 of act No. 38 of 1879, a sum sufficient to pay said judgment and interest and costs in the court below and herein; and, if no such sum remains of any appropriation of the said budget of 1891, after all such liabilities and expenses have been paid, to proceed at their first regular meeting after service of said writ to budget and appropriate in the estimate and appropriations for the year 1892 such sum, as aforesaid; and it is so ordered.”

[3] We think that case was correctly ruled, and therefore we do not find it necessary to further pass upon the following objections ' set forth in the second or amended return, to wit: That the funds hereafter to be collected by the defendant are specially dedicated by law for educational purposes, that the said funds are insufficient to carry on and maintain the schools of the parish, and that defendants had no funds carried over from previous years than to point out, under the decisions cited and on principle, they do not with other objections alleged make a good and sufficient return in this case. See Monaghan v. City of Philadelphia, 28 Pa. 207, and Evans v. Pittsburgh, Fed. Cas. No. 4,568, commenting thereon, and Pollock v. Lawrence Co., Fed. Cas. No. 11,255.

The judgment of the Circuit Court is reversed, and the case is remandedl, with instructions to grant a new trial, and thereupon enter judgment in favor of plaintiff and against defendant, commanding the defendant to pay plaintiff’s judgment in principal, interest, and costs,out of any money remaining in defendant’s treasury from the revenues of the fiscal year ending June 30, 1911, not otherwise appropriated, and, if there be no such sum sufficient for the purpose, then that defendant be commanded to proceed at its first regular meeting to be held after the service of said writ to appropriate a sum sufficient for the purpose aforesaid out of its revenues for the fiscal year ending June 30, 1912, or, if there be no funds sufficient for that purpose remaining unappropriated out of its revenues for the year ending June 30, 1912, then to make such appropriation out of its revenues for the fiscal year ending June 30, 1913. Costs of this and the lower court to be paid by defendant and appellee.