29 La. Ann. 787 | La. | 1877
Lead Opinion
The opinion of the court was delivered by
Plaintiffs are brokers of said city. They allege that as such they were employed by a number of firms of New Orleans named in their petition, to pay for and obtain their several licenses from said
The defendant filed various exceptions — insisting in this court however only on the third one, which was in substance, that relators have no real interest in the matter; theirs are not the licenses to be paid, and they have no right to maintain an action to require the city officer to receive for the licenses of others, the warrants belonging to the relators.
This exception was not well taken. C. C. (old) art. 2130 — “An obligation may be dischargedby any person concerned in it, such as a co-obligee or surety. It may even bo discharged by a third person no way concerned in it, provided that person act in the name and for the discharge of the debtor, or that, if he act in his own name, he be not subrogated to the rights of the creditor.”
Art. 2131 — A third person may for the advantage of the obligor, put the obligee in default by offering to perform the obligation on the part of the debtor, even without his knowledge; but it must be for the advantage of the obligor, not merely to change the creditor.”
In the case before us it is alleged and proved that relators acted as the- employees, or at least at the request of the debtors, and we think they have the right, under the above articles to compel the creditor to accept payment — and it is not material whether they are acting in their own names or those of the debtors, as they do not seek or demand a subrogation, but a discharge of the debtor.
Defendant further denies the right of relators to proceed by mandamus, and sets up in defense that the warrants tendered are of doubtful authenticity and legality, and that he believes many of them are spurious and not genuine. Ho insists that the relators must first sue and establish the validity and genuineness of the warrants, before proceeding by mandamus.
We do not think so. Act No. 33 of the Legislature of 1874, declares in so many words that these police warrants shall be received “for all licenses * * * due or to become due ” the city. The right to pay licenses therefore with these warrants is indisputable, unless said act be unconstitutional, of which we find no evidence. Our predecessors we think correctly held these warrants to be so receivable in the case of “ the State ex rel. Ed. Lubie vs. the Administrator of Finance,” not yet reported. This law does not require that these warrants be recognized
Opinion on the Merits
On the Merits.
It seems that a large number of the warrants tendered in payment, were signed by the “ chief clerk ” and “ accepted ” by the “ treasurer ” of the Police Board — and issued early in the year 1869, for fiscal year 'of 1868. The only law then in existence authorizing the issuance of •these warrants was the act creating the Board of Metropolitan Police, -page eighty-five acts of 1868. By its thirtieth section it requires said warrants to be “ signed by the president and any two other members of the board, attested by the chief clerk.”
A board, such as that of the police, is a mere creature of the law, possessing no powers not conferred by statute, and when, without authority by legislative enactment to issue a warrant or note, all such paper when issued, is null in the hands of whomsoever it falls. 5 Denio, 517; 4 Denio, 520; McClure vs. Bennett, 1 Black, f. 189, and Mears vs. Graham, 8 ib., 144. A fortiori, where the form of warrant is-prescribed, any other
The warrants therefore issued by the chief clerk and accepted by the treasurer, were not issued as required by law, and are not such warrants as the law requires the city to receive for license-taxes.
The decree of the court below was therefore erroneous, so far as it-compelled the Administrator to accept these warrants in payment. They are of numbers and amounts following:
No. 1969..............'.....$91 67
2807................... 91 66
1970..................-. 83 33
1945.................... 83 33
1946................... 83 33
1944................... 83 33
1953................... 83 33
2294................... 72 33
1974................... 83'33
1981................... 72 33
190................... 45 12
669...................' 13 92
302........... 100 00
140........ 30 25
303....... -.100 00
572...................200 00
556...................100 00
304...................100 00
530................... 15 00
6923................... 67 20
6924.................'.. 77 96
671................... 14 40
508...................300 00
567...................300 00
562.......‘............300 00
559...................100 00
558...................100 00
553...................100 00
No. 1959.....:.............$91 67'
1971................... 83 3$
1965................... 83 33.
1942................... 83 33-
1976................... 83 33-
2812................... 77 77
1984................... 72 33-
1962................... 83 33:
1978................... 83 33:
6721................... 83 33-
191................... 45 14
670................... 12 00
120................... 66 66
21................... 32 00'
300...................100 00
557...................100 00
124................. 4 00)
5867.......■..........79 33'
6922................... 77 96-
6924................... 80 65
672................... 13 92.
666.................... 15 00'
573...................200 00‘
580...................200 00*
7878....................250 00-
560...................100 00'
'555...................100 00-
It is therefore ordered adjudged and decreed that the judgment of the court below be so amended as to include among the rejected warrants,.those above described, and as thus amended that said judgment be affirmed — relators paying costs of appeal and defendants those o£ the court below.
