Henry Billings Brown

“ We deem it entirely immaterial whether the assessments against the city for the drainage of public property were reduced to judgments or not. When put in this form they were none the less obligations of the city-debts which it owed to the drainage fund, was bound to treat as assets collected, and such as were held by it as trustee for the benefit of the warrant holders. ”

“ How far a court of justice would, in any case, be competent, on proceedings instituted by the state itself, to vacate a contract thus formed, and to annul rights acquired under that contract, by third persons having no notice of the improper means by which it was obtained, is a question which the court would approach with much circumspection. ”

“ Private owners may be assumed to be interested in draining their own property, but in the absence of a special provision to that effect there is no presumption that they are also to be called upon to pay that which prima facie belongs to the public. ”

“ Indeed, the whole gist of the answer is that the city has executed its trust faithfully, so far as it was possible to do so, by collecting assessments against private persons, but has not accounted for taxes assessed against itself, because it is not legally responsible therefor. There is no claim throughout the answer that the city disavowed the trust. ”

“ Indeed, it is open to serious consideration whether the reservation of drainage warrants in the constitutional amendment of 1874 was necessary, in view of the fact that the assessments had already been reduced to judgments against the city and the property owners, and that the further issue of drainage warrants was rather in the nature of the payment of a debt already incurred than the creation of a new obligation. ”

“ The objection that the decree finds the city a debtor to the complainant in the amount of the warrants is more apparent than real, since it also declares that he is entitled to be paid out of the drainage assessments, refers it to a master to state an account of such assessments, and provides for an absolute decree against the city only if the fund established by the accounting shall be sufficient, and for a pro rata decree if such fund be not sufficient, to pay all the warrant holders in full. ”

“ As the city had paid for the property in warrants drawn upon a particular fund, it was under an implied obligation to do whatever was reasonable and fair to make that fund good. Certainly it could not so act as to prevent the fund being made good, and then require the vendor to look to the fund, and not to itself. The duty of the city to collect these assessments was affirmed in State, Van Norden, v. New Orleans, 27 La. ”

“ Having thus voluntarily assumed the obligations of a trustee with respect to this fund, it cannot now set up the statute of limitations against an obligation, which, as such trustee, it had undertaken and failed to perform. The rule is well settled that in actions by cestuis que trust against an express trustee, the statute of limitations has no application, and no length of time is a bar. While that relation continues, and until a distinct repudiation of the trust by the trustee, the possession of one is the possession of the other, and there is no adverse relation between them. ”

“ The court of appeals further found that, so far as the answer attempted to fasten the responsibility for the alleged defects in the drainage plant upon Van Norden, its transferee, as a defense to this action, it was entirely unsupported by the evidence, as counsel for the city very frankly admitted in their argument at the hearing. ”

“ A defense of res judicata, not noticed by the court below, is set up as arising from the decree of the circuit court, affirmed by this court in the case of Peake, v. New Orleans, court in the case of Peake v. New Orleans, 541. This plea is based upon the fact that in that case one James Jackson appeared by intervening petition as the holder of eight purchase warrants, identical in character with those sued upon by the complainant, part of those given in payment of the purchase price of the drainage plant from the canal company and Van Norden ”

“ If the majority of the legislature be corrupted, it may well be doubted whether it be within the province of the judiciary to control their conduct; and if less than a majority act from impure motives, the principle by which judicial interference would be regulated is not clearly discerned.' See also Ex parte McCardle, 7 Wall. ”

“ This authority was granted by the act of February 24, 1876, under which the contract was made with Van Norden to purchase the plant, and to pay therefor the sum of $300,000 in drainage warrants as a consideration for the property, and also in full settlement of all claims for damages which the canal company or Van Norden had against the city. ”

“ This amendment is as follows:
'The city of New Orleans shall not hereafter increase her (its) debt in any manner or form or under any pretext. After the 1st of January, 1875, no evidence of indebtedness or warrant for the payment of money shall be issued by any officer of said city except against cash actually in the treasury; but this shall not be so construed as to prevent . . . the issue of drainage warrants to the transferee of contract under act No. ”