Lucius Quintus Cincinnatus Lamar

“ At the same time it is equally the duty of this court, as of all others, to see to it that no burden is cast upon tax-payers, citizens of a municipality, which does not spring from that which is justly and equitably a debt of the municipality; and when a contract for local improvements is entered into the contractor must look to the special assessments, and to them alone, for his compensation, and if they fail, without dereliction or wrong on the part of the city, neither justice nor equity will tolerate that it be charged as debtor therefor. ”

“ We now advert to the claim of the appellant that the city is liable for the drainage fund as delinquent trustee. That liability is asserted on three distinct grounds: (1) Because the city unjustifiably failed to collect the assessments due the fund; (2) because if failed, as subrogee of the original contractor, to continue the work of drainage, and thus secure, under the decisions of the Louisiana courts, the collectibility of the assessments; (3) because she has paid out moneys belonging to the fund for purposes not permitted by the law. ”

“ The city was trustee by statute, and can be called to account by any person in interest. Exactly how the decree, when rendered, and the ascertainment of liability thereby made should have been enforced, it is hardly worth while to discuss in a dissenting opinion. The usual remedy is by mandamus where a public body cannot be subjected to ordinary process. That is a matter of detail only. The fact that the public property could not be sold on execution is no reason for absolving the city altogether from liability. ”

“ Infidelity to engagements causes loss of character to the individual; it entails reproach upon the state.' And we trust that this court will never falter in its duty of brushing a way all false pretenses, and holding every municipality obedient to the spirit as well as the letter of all its contract obligations. ”

“ If that suggestion be pertinent where the derelicton is that of the city council,-the legislative assembly of a city, the body charged primarily with the duty of making suitable provision for the discharge of all municipal obligations,-how much more is it true when such general legislative assembly is without power, and charged with no duty, and full responsibility rests with a separate administrative board. The contractor is specially interested in the full and prompt discharge of its duty by this administrative board. The remedy of mandamus is open to him to compel its action. ”

“ The assessment proceedings had proceeded so far that there was a large apparent obligation of the city to the drainage fund. In 1871 an act of the legislature is passed, empowering the canal company to complete the work, transferring to a subordinate administrative body of the city all assessments theretofore made, and imposing upon it the further duty of assessment and collection. No provision is made by the legislative act for payment for the work done or to be done other wise than through the collection of these local assessments. ”

“ Indeed, if there were no indebtedness, the contribution, as a whole, might well be considered as ultra vires, and if, by the issue of negotiable securities to that fund, an indefeasible obligation had been assumed by the city, it might in equity hold that fund as debtor to it for such amount. Much stress is placed by counsel for appellant on this point, and large reliance is placed on the fact that in these bond trans actions there was no declaration of an intent to apropriate them to the payment of the city's indebtedness as assessee ”

“ There is wide divergence in the authorities as to the circumstances under which the liability of a city to a contractor for local improvements arises in case of the non-payment of the special assessments. ”

“ Not an intimation is given of any difference between one class of assessments and another, those of the city and those of individuals. Therefore the city had no power to issue such bonds for the purpose of paying the assessments. It had, perhaps, the power to issue bonds of the unmarked sort for that purpose, if Van Norden, the transferee of the company's rights, had consented to receive them for that purpose ”

“ Guthrie, who was the representative of the canal company and its assignee, is 'that he would not take the property bought in by the commissioners for non-payment of assessments and pay the taxes thereon.' If they, during these many years, were unable to collect but a small fraction of the assessments in cash, if the property they took was not worth the taxes, what can be said of the balance, or the possibility of enforcing the collection of assessments thereon? ”

“ Not so. They were privileged bonds in the series. And, basides the general liability of the city, the statute provided that all the proceeds of assessments not needed to pay off warrants, if any, coming in, (and in doing which the issue of that class was, pro tanto, prevented, and rendered unnecessary,) should be an additional special fund with which the city should purchase said bonds before maturity at a price agreed on, not exceeding par, thereby giving the bondholders, or some of them, if there were any such excess of receipts, an option to get their money before maturity. ”

“ A trustee, city or not,-it is immaterial,-receives large assets, of which its own liability forms a considerable part; and the simple question is, how shall it relieve itself of the charge? How does the city do so in this case? Not by collection and disbursement according to the law and her duty, for it is conceded that about $1,400,000 was never collected; but--
(1) By a claim that the assessments were greater than the value of the lands, and, therefore, that they could not be collected from the lands. To this proposition there are several answers: First. ”

“ The justice of demanding the special contribution is supposed to be evident in the fact that the persons who are to make it, while they are made to bear the cost of public work, are at the same time to suffer no pecuniary loss thereby ”

“ To constitute payment, money or some other valuable thing must be delivered by the debtor to the creditor for the purpose of extinguishing the debt, and the creditor must receive it for the same purpose. ”

“ It appears also that the canal company had an agent to look after this matter of collection of taxes, who offered all reasonable inducements to secure their payment. Again, the assignee of the canal company, pursuing the remedy which was open to him, of mandamus to compel the seizure and sale under proper writs of the real estate subject to these assessments for the payment of certain warrants, secured an order of the court therefor. ”

“ This contention, also, of complainant must fail.
We have given this case long consideration. The multitude of facts presented, the large interests involved, and the learned and cogent arguments of counsel, have compelled such consideration. ”

“ If all that were correct, and if the city had no other resources for finishing of work than these assessments, still a margin of about $225,000 would have been left for the benefit of warrant holders. On the other hand, hwev er, we cannot yield assent to the Davidson decision. We cannot and do not accept the proposition that, where the legislature passes on the necessity of a great public work like this, and organizes a district for its prosecution, the assessments made are void unless the property assessed is directly and evidently benefited. ”