87 F. 829 | 5th Cir. | 1898
(after stating the facts as abové). As to nearly all of these defenses, we might well rest our decision in this east' on the opinion of the supreme court expressed in answer to the certified question. All the facts averred in the bill have either been admitted by the answer, or abundantly established by evidence. Indeed, the only fact in dispute between the parlies is the question of responsibility for the alleged defects in the drainage plan. So far, however, as the answer attempts to fasten this responsibility on the canal company and Van Norden, its transferee, as a defense to this action, it is entirely unsupported by the evidence, as the counsel for the city very frankly admitted in their argumen t at the bearing. The general plan under which the work was undertaken by the contractor was prescribed by the legislature in the act of 1871, which directed the canal company to dig canals above, below, and in the rear of the city, and with the earth removed therefrom to build levees to protect the city from overflow, and to dig such interior canals as might be necessary for the drainage of tin; city and the lands in the rear; but the rigid: to prescribe the location and number of all the canals was expressly vested in the city. As a matter of fact, the city, through its ordinances, based on the recommendation of the city engineer, located each of the canals that were excavated, and exercised direct supervision over the work, which the assistant engineer having charge of the work says was done strictly in accordance with the specifications furnished by the contractor, and well done. The principal objections made to the plan by some of the eminent, engineers who have testified are that it was not sufficiently extensive to meet the future requirements of a growing city like Yew Orleans, that it did not provide; the number of interior canals necessary to bold and carry off the excessive rainfall, and that the method of discharging the drainage water by means of pumps into the lake was too expensive, and was wrong from a sanitary point of view. Testifying by the light, of experience and investigation made by them since 1871, they give it. as their opinion that a greater number of canals should be excavated than called for by the plan, and that the drainage ought to be discharged into Bayou Bienvenue, some distance below the city proper, through the main canal, by means of a series of pumping stations. Oilier engineers of equal reputation — notably, Mr. Bell, who, as engineer of the city in 1871, devised the plan now condemned, and the present city engineer, and others — testify that the plan was a good one, and. if carried out, would have accomplished the drainage of the city. The cost of completing the work after the city purchased the drainage plant, as testified to by some of the witnesses for the defendant, would have been about Spoilt),000, if’paid for in cash, and not in warrant's. But it now appears that a new plan of drainage; has recently been adopted, which, incorporating and using all the old works, is estimated to cost, about 88,000,000. Without commenting further on the evidence on this part of the defense», our conclusion is that the plan under which the work was done by the canal company and its
It is claimed, however, that the city is not bound to account for the assessments and judgments against itself, as the quasi owner of the streets and other public places, on the ground that such assessments and judgments should be considered void ab initio, for the reason that public property is exempt from taxation. But we think the city, by drawing these warrants against the drainage fund, composed largely of these very assessments and judgments, is, under the principles laid down by the supreme court in the present case, estopped to deny their existence and validity, to the same extent that it is (‘stopped from setting up the issue of bonds under the act of 1872 as a discharge of its general liability as trustee with reference to the fund. As an original question, however, the authorities seem to affirm the liability of a municipal corporation for its proportion of the cost of local improvements, independently of the existence of any estoppel. In Re New Orleans Drainage Co., 11 La. Ann. 338, the supreme court of Louisiana held the city of New Orleans liable for assessments made on the area of the streets under the act of 1835, which is similar in all respects to the acts involved here, except that the assessments in
“Thu objections may be included under three heads: First, that public property is exempt from special assessments: second, that the statute under which the state is proceeding does not authorize any assessments against ilie property of the county; third, that the judgment cannot be enforced by tlie sale of the property, and no other mode of enforcing such judgments can be resorted to. it is not claimed the first objection has the direct sanction of the statutes in its support, but the contention is such property is expressly exempt from taxation, and special assessments are included within iho meaning of the word ‘taxation.’ We have been too long and too firmly committed to tlie doctrine ihat exemption from taxation does not exempt from special assessments to now admit that it is even debatable. * * * Tlie distinction between taxation and special assessments is also clearly made in our present constitution, and while providing that the general assembly may exempt the property of the state, counties, and other municipal corporations from the former, makes no such provision in regard to the la iter, but on the contrary * * * authorized tlie general assembly to vest tlie corporate authorities of cities, towns, and villages with power to make local improvements by special assessments, without any restriction as t.o the properly to be assessed. Tlie second objection rests entirely on the assumption that, to include the property of counties, it should he expressly named, and that language, however comprehensive, In general terms only, is not sufficient. Tlie rule held by this court is directly the reverse of this assumption. Tin: exemption, and not the inclusion, must specifically appear. * * The question relates solely to the right of the state to apportion the public burden upon public properly, in common with private property, in proportion to tlie benefit conferred upon that property. The remaining question, wo think, involves no serious difficulty, although at first blush it may seem to do so. AVo certainly do not hold the court-house square may be sold, and title passed to private parties or to the city. In ’Taylor v. People, 66 Ill. 322. we held that in such cases the amount should be paid out of the treasury. The distinction here made between taxes and local assessments has been fully recognized by the supreme court of Louisiana in Charnock v. Levee Co., 38 La. Ann. 326. and in Paving Co. v. Gogreve, 41 La. Ann. 263, 5 South. 848, where the Drainage Case in 11 La. Ann. 338, is cited with approval.”
Whether the obligation for these drainage assessments had its origin in the original acts of 1858,1859,and 1861, or was east upon the city b,v the act of 1871, confirming the assessment rolls, upon which the city ivas named as a debtor, or results from judgments based on diese rolls, the amount of the assessments constitutes a lawful debt of the city, which must be discharged by the exercise of the power of taxation; such power being the usual', and in most instances the only, method by which municipal corporations can discharge their indebtedness. U. S. v. City of New Orleans, 98 U. S. 381; Wolff v. City of New Orleans, 103 U. S. 358.
It is urged, however, that the contracts of purchase made in 1876 are null and void, because they operated to increase the debt of the
The only remaining question which requires consideration is the plea of prescription, and that, we think, cannot be maintained. The act of sale created an express trust, in which the city undertook, as a trustee, to collect and apply the drainage assessments to the payment of the warrants given for the price of the property sold to it. This trust was a continuing and executory one, and the universal rule in such cases is that the statute of limitations is not set in motion until the trustee has disavowed the trust, and notice of his repudia
On a full consideration of the case, we think the decree appealed from should be reversed, and that a decree should be entered by the circuit court in favor of the complainant for the sum of'$6,000, with 8 per cent, interest from June 6, 1876, as stipulated in the warrants sued on, and that an account should be taken of all the drainage assessments, including those reduced to judgments against the city as assesr.ee of the streets, squares, and other public places, as well as (he assessments against private property and persons, allowing credits for the amounts heretofore collected and properly expended, but without allowing for the bonds issued under the act of 1872. Opportunity
“(1) It is decreed that the city of New Orleans is a debtor to John G-. Warner, complainant, in the sum of $6,000, with 8 per cent, interest thereon from June 6, 1876, as stipulated in the warrants sued on, and that he is entitled to be paid said sum, in principal and interest, out of the drainage assessments set forth in the bill filed herein.
“(2) The said drainage assessments, including those against the defendant as assessee of the streets, squares, and public places, as well as those against the owners of private property, be, and the same are hereby, declared to constitute a trust fund- in the hands of the city of New Orleans for the purpose of paying the claims of complainant and other holders of the same class of warrants issued under the act of sale from Warner Van Norden, transferee to said city, under authority of Act No. 16 of the legislature of the state of Louisiana, approved February 24,1876.
“(3) That it be referred to one of the masters of the court to take and state an account of all said drainage assessments, and for that purpose he is authorized to require the production before him of the assessment rolls and other records appertaining to such drainage assessments, by any person having possession thereof, and to examine witnesses touching all such matters. In taking and stating such account the master is directed to charge the defendant ¿s well with the amount of drainage assessments against the city, the area of the streets, squares, and public places, as with those against the owners of private property, with interest thereon as prescribed by law, and to give credit only for the sums already collected and properly expended by the defendant in the execution of the trust, but that no offset be allowed for the bonds issued in exchange for drainage warrants under the act of 1872.
“(4) It is further ordered that said master give 30 days’ notice, by advertisement in a newspaper published in New Orleans, to all holders of warrants issued as aforesaid, to annear before him and establish their claims. And it is further ordered that said warrant holders be entitled to establish their claims before the master in the first instance, without being required to file formal interventions, or to obtain special leave of court, and that they be entitled, upon making satisfactory proof, to the full benefit of the proceeding.
“(5) It is further decreed that upon the coming in of the master’s report, and its confirmation, the complainant and all those who have established claims under the fourth clause of this decree will be entitled to an absolute decree against the defendant for the amounts found due them, if the fund established by the accounting shall be sufficient, but, if not sufficient to pay such claims in full, then for the
For the purpose of awarding the relief to which the complainant is entitled, the decree appealed from is reversed, at the costs of the appellee, with directions to the circuit court to enter the decree herein prescribed, and otherwise to proceed in the cause in accordance with this opinion.