No. 7778 | La. | Apr 15, 1881
The opinion of the Court was delivered by
The plaintiff, having obtained judgment against the defendant for the sum of $1625 33J, issued thereon a writ of fieri facias, and had process of garnishment served on Boulanger and others, who, he alleged, were indebted to the defendant, said parish. The garnishees in their answers acknowledged themselves to be indebted to the parish in certain sums for the rent of certain lands situated in the town of Donaldsonville. The Police Jury of Ascension parish filed a petition (which is styled in the agreement or statement of facts, in the transcript, one of intervention and injunction, and which was, by the court, ordered to stand as an answer or opposition of defendant to the garnishment proceedings), wherein they alleged that the purpose of the garnishment process was " to cause to be seized and applied to the payment of said judgment the revenues or rentals, arising from the lease, to the garnishees of portions of lands which do not belong to the Parish of Ascension, but are the common property of all the inhabitants of said parish, and which were donated to the inhabitants for the purpose of erecting thereon a court-house, jail and public schools, and were dedicated for common use as public property, and are ‘ hors de commerce-,’ that the revenues derived therefrom by lease or in any other manner cannot legally be applied to the payment of any parochial indebtedness; that the Police Jury of the parish has administered said property and its revenues solely as trustees of all the inhabitants of the parish, and that • the revenues therefrom, as well as the lands themselves, are ‘ hors de
The court a qua ruled properly that the “petition of intervention,” should stand as an answer.
The judge a quo in his reasons for judgment held, that he did “ not -consider the rents seized in this case were essential to the existence of the corporation of the Parish of Ascension, nor to the useful and proper exercise of its functions. The parish might be deprived of them without in any degree impairing the proper exercise of their functions by the Police Jury thereof, and we*think they can be very properly held to form a part of that class of rights which a creditor can seize under Art. 637, ■C. P.” * * * “ We think, therefore, that the sums due to the parish for rents of lots belonging to it are liable to seizure.”
The only question for our consideration and decision, is that pre■sented to the lower court, viz: Are the rentals of the parochial lots liable to seizure ?
The authorities cited by the plaintiffs seem to us inapplicable to this. Tn the cases quoted by them, the seizure of taxes or of pecuniary indebtedness to the parishes or municipalities growing out of bonds given to these public corporations or fines due them, was involved: in this, the right to seize and render liable for their indebtedness the revenues derivable from property donated to a parish for specified public purposes or dedicated to the public use.
The property, from which the rentals áre sought to be subjected to .plaintiff’s judgment,-was donated to the Parish of Ascension, or dedicated to it, for public uses. If the parochial authorites, who, we think, are •mere trustees for the benefit of the inhabitants of the parish, fail to administer the property for the purposes intended by the donors, this fact •cannot vitiate or annul the donation or dedication. At best such acts ■and conduct can only be regarded as unfaithful administration, and the remedy rests with the inhabitants or any of them to invoke the aid of the courts, and in proper proceedings restrain the malappropriation or misappropriation of the property or its revenues, when violative of the úntent of the donor. The decision in the case of The Police Jury of the Parish of Plaquemines vs. Foulhouze, 30 An. 64, in our opinion, covers this case. There the Court said: "Property dedicated to public use
“ A municipal corporation has no implied or incidental authority to-alienate or dispose of for its own benefit property dedicated to, or held by it, in trust for the public use, nor can it extinguish the public usee in such property; nor is such property subject to the payment of the debts of the municipality.” Dillon on Municipal Corporations, g 512.
We hold then that property donated or dedicated to a parish, for public.uses, is not liable to seizure for debts due by the parochial corporation, and the revenues derived from such property have the same character as the property itself, are destined for public uses, and are likewise not liable to seizure. But, it is said, the property itself and its-revenues are not applied to the specific purpose for which the donation or dedication was made. If such be the case, they are none the less-property with its accessory revenues, intended for public uses, and the right to have the donation or dedication annulled and the property revert to the donor, for the reason that the conditions have not been fulfilled, remains with the donor, and the misappropriation by the doneemay be rectified by the parties in interest.
A parish, or rather parochial authorities, are but the representatives within certain territory, and with limited statutory powers of the people within its territorial limits, and while their acts, within the scope of their clearly defined granted powers, are binding upon their constituents,, we cannot admit that their malfeasance or misfeasance can divest such constituents of their vested rights of property. The closing portion of' the opinion o£ the Court in the case just cited, seems to us to be decisive of the principle herein involved. “ We see no significance in the facfr that the whole of the donated tract is not in actual public use. It suffices that the public has a right to use. Nor does the fact that the part seized was cultivated in rice in 1875, under lease from the parish, operate-to deprive the public of its rights of use. We have just seen that the parish cannot directly or indirectly divest the property of its public-character. How much of said property is or is not needed for the use of the public, is not, in its nature a judicial question. It suffices for us to know that the public has a right to the use of the whole, and for aught we can know, may have some day necessity for its use.” Dillon on Municipal Corporations, § 531, 445, 64, 446; 9 Otto, 149; 7 An. 148.
It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered in this case, it is ordered, adjudged and decreed that the opposition of defendant to the-
Behearing refused.