The First Municipality of the City of New Orleans v. The Commissioners of the General Sinking Fund, and others, 1 Rob. 279

Garland, J. The plaintiffs allege that at the foundation of the city of New Orleans, by the King of France, certain spaces of ground were left vacant in front of said city, from its .upper to its lower limits, for the use of the inhabitants, under the name of quays, which as such, had always been used and possessed as a common property previous to the cession of Louisiana to the United States, and since.

That in the year 1825, the inhabitants, under the administration of a corporation known hy the . name of the Mayor, Aldermen, and Inhabitants of the city of New Orleans, were in possession of the said quays, when a resolution was passed for the purpose of selling in lots, parts of said quays, which were included between Ursuline, Levée, and Barrack streets, and the public road, and also between Custom House, Levée, and Bienville streets, and the public road.

That the United States instituted proceedings against the said corporation to prevent said sale, claiming the said spaces of ground as a portion of the public domain, acquired by the treaty of cession; which claim, the corporation resisted, and asserted the claims of the aforesaid inhabitants to said pieces of land, as a common property.

That during the pendency of said suit, the parties entered into an agreement to sell the property at public auction, the proceeds to remain deposited in court, subject to the final decision of the case ; in conformity with which agreement, the said pieces of ground were sold in lots, and the net proceeds amounted to $954,797 76, and afterwards, the said suit, as it is alleged, was decided in favor of the present petitioners, and the property declared to belong to them.

The petition further represents, that subsequent to said judgment and final decree, the proceeds of the sale being still deposited in ■the District Court .of the United States,

an act was passed by the Legislature of this state, on the 8th of March, 1836, by which the city of New Orleans was divided into three separate Municipalities, ■the first of which, now plaintiffs, is composed of the city of New Orleans proper, within the limits, ¡aboye and below, that it had at the time it was first established, with the exception of certain parts of its commons on the upper side. That by the 15th

section of said .act, a Sinking Fund was created, for the purpose of paying the debts of the former corporation, which was placed under the control of certain Commissioners, and that by a subsequent act approved March 11th, 1838, supplementary to the foregoing, the moneys arising from the sale aforesaid were made to form a part of said fund, and the interest thereof directed to be applied in the same manner as other money and property composing said fund, to the payment of the debts of the former corporation.

It is alleged, that by virtue of the aforesaid provisions, the Commissioners of the Sinking Fund have taken possession of the proceeds of the aforesaid sale, to the amount of $954,797 76, to the great detriment and prejudice of the inhabitants of the First Municipality, to whom the said sum belongs, and from whom it is detained unjustly, and by an arbitrary use or abuse of power, there being no more right to take the proceeds than to take the land itself, if it had not been sold; and that the said Commissioners of the Sinking Fund, and the Second and Third Municipalities claim to hold said proceeds or sum of money, for the objects specified in the aforesaid acts of the Legislature, and refuse to deliver or pay over the same to the plaintiffs, who aver a constant willingness and ability to provide for their just portion of the-debts of the former corporation.

It is therefore prayed that the Commissioners aforesaid, and the Second and Third Municipalities-be cited; that it be ordered and decreed that the proceeds of the sale of the aforesaid lots, ‘be considered as belonging exclusively to the inhabitants of the city proper, to wit, the old city of New Orleans, within the limits which it had from the moment of its foundation by the French, above as well as below, to the time when the act entitled

an act to incorporate the city of New Orleans-was passed, and that as such, the said proceeds be accounted for,, capital and interest, and the whole delivered over to your petitioners.’ The petition then proceeds to ask that the property which,, previous to the cession of Louisiana, belonged ‘to the then city of New Orleans, as commons, may also be decreed to be the exclusive property of the inhabitants thereof.’ It then proceeds to-allege, that in creating the three municipalities, a portion of the commons belonging-to the old city was arbitrarily included in the Second Municipality, and prays that a piece of ground bounded by Canal, Magazine, Common and Tchapitoulas streets, and-another piece, bounded by Common, New Levee, Canal and Tchapitoulas streets, may be decreed to- be the property of the inhabitants of the old city of New Orleans; and that if the said-pieces of ground- have been sold, that the proceeds be paid; to the First Municipality-; and that it be adjudged to have the full, free, and exclusive right of enjoying and disposing of the same; and that said Municipality he put in possession, any act of the Legist ¡ature to the contrary notwithstanding.

The Commissioners of the Sinking Fund, after pleading several dilatory exceptions which were overruled, answered by denying the capacity of the plaintiffs to sue in the manner and form, set forth. They deny generally the allegations in the petition; they further say, that in consequence of payments made by them, out of the funds received, only a small balance is in their hands, and that the whole fund will be exhausted when the debts of the former corporation are paid.

The Second Municipality, in its answer* denies generally the allegations of the petition, and then proceeds to admit that the pieces of ground mentioned* formerly belonged to the city of New Orleans, and were sold, and the proceeds deposited as before stated.

They further admit the division of the former incorporated limits of the city of New Orleans into three municipalities, the alterations and amendments made to the charter by the acts of the Legislature, passed in March, 1836, the creation of a Sinking Fund for extinguishing the debts of the former corporation, and that the Commissioners of said fund have received the proceeds of the lots sold, amounting to $954,797 76, for the purposes mentioned in the aforesaid acts of the' Legislature, and that they hold the same to be administered under the said acts.

It is further admitted by the Second Municipality, that by the aforesaid acts of the Legislature, the real estate which belonged to the former corporation was divided between the three municipalities* by assigning and giving to each, the portion situated within their respective limits, whereby the pieces of ground now claimed, situated within their limits, are their exclusive property. It is further averred, that said acts were a just and proper exercise of Legislative authority, for the purpose of providing for the payment of the debts of the old corporation, and making a distribution of the property.

The Third Municipality denies the right of the plaintiffs to sue, or recover on the allegations contained in the petition, and pleads a general denial. On the trial, the plaintiffs offered in evidence, a copy of the original plan of the city of New Orleans, made by De Pauger, representing its squares, streets, quays, and commons, in the year 1724, which shows that the lowest squares were those between Hospital and Barrack streets, and the uppermost, those between Bienville and Custom House streets; the latter street is not represented at all, nor were any lots laid out above it, nor any back of Rampart street.

The partition of the plantation of the Jesuits was also shown, to prove that the commons of the city extended to their lower boundary; also the records of the suits with the United States, showing the judgments of the Supreme and Circuit Courts of the United States, in relation to the property, its sale under different orders of court, and the payment of the proceeds, first by the-clerk of the District Court of the United States, to the treasurer of the old corporation, and then by him to the comptroller of the Sinking Fund.

Upon a full examination of the case, the parish judge dismissed the action, reserving to the Municipality all their rights to recover in due time from the Sinking Fund, the proceeds of the lots awarded to the city o'f New Orleans by the judgment rendered in the Supreme Court of the United States, in the suit between the city and the United States; also reserving to said Municipality all legal means to preserve the amount, and to prevent its being, improperly alienated or spent by the Commissioners of the Sinking Fund. From this judgment the plaintiffs have appealed.

In the argument of this case by the counsel for the plaintiffs, we had many authorities exhibited to show what were the rights and privileges of the inhabitants of towns and cities in France and Spain, and their colonies; and it was contended throughout that the quays and commons ^belonged to them, and consequently, that, the inhabitants of the old city of New Orleans had an exclusive property in those in front of and around it. What may have been the rights of the inhabitants of the city of New Orleans under the French and Spanish governments, it is not now necessary to inquire.

The radical error in this case'consists, as is well stated by the parish judge, in the First Municipality supposing itself invested with the rights of those inhabitants, or that it has succeeded to the powers, rights, and privileges of- the corporation created by the act of the 17th of February, 1805, and the various acts supplementary and amendatory thereof.

This Municipality is the creature of the act of March the 8th, 1836; to it we must look for its powers, rights, and authority; and it is a great mistake to suppose, because we may sometimes have to look into previous acts of the Legislature, to which the act of 1836 may refer, to ascertain its powers, that it is the residuary legatee and depositary of the powers and rights of the corporation that existed previous to March, 1836, and which, for some purposes, and in a somewhat different form still exists.

That corporation is now in a state of liquidation, and as we have held in 13 La. 344, and 15 La. 128, is represented by the Mayor and Commissioners of the Sinking-Fund, in all things appertaining to its settlement and rights; whilst the real property which belonged to it at the time of its division into Municipalities, belongs to the Municipality in which it is situated. 1 Bullard & Curry’s Dig. 123. Nos. 108, 109. Ib. 125. No. 119.

Each Municipality represents and acts, within and for the territorial limits fixed by the Legislature ; but we no where find that the First is substituted for, or entrusted with the rights of the original city or former corporation. The parish judge was correct in considering this as in some degree a petitory action, in which the plaintiff must recover upon the strength of his own title, and not by the weakness of his adversary’s.

As against the Second Municipality the action is essentially petitory; the judge therefore properly concludes, as the plaintiff does not stand in the place of the original city of New Orleans, that no action can be maintained by it against that defendant for the land claimed, or for the proceeds, it being situated in that Municipality, and in fact belonging to it under the act of the Legislature of March 8, 1836.

Another material error into which the counsel for the plaintiffs has fallen, is in supposing that the First Municipality is vested with the title which the inhabitants of the original city had to the lands in question, or to their proceeds, admitting (which we are not ready to do,) that they had a title such as is set up.

Suppose that these inhabitants could themselves recover, the benefit would not accrue to the plaintiffs by virtue of their corporate powers, but be for themselves; and let us suppose further, that the Municipality could recover, the judgment would enure to the benefit of all within its limits, and they are now much more extensive in one direction, and more contracted in another, than the original limits were, according to the allegations in the petition, so that all in whom the title was, or is, could not he benefited, and many in whom it is not, would profit by it.

Against the Third Municipality, the plaintiffs present no claim except so far as it is interested in the Sinking Fund, which brings us to a brief consideration of the demand on it., . The plaintiff’s counsel complains loudly of the injustice and oppression practised by the Legislature, in directing the proceeds of the lots sold under the orders of the District Court of the United States, to be paid over to the Commissioners of the Sinking Fund, and the interest to be applied in the same manner as the other money in said fund, to the payment of the debts of the city or old corporation.

Whether the different Municipalities have contributed to that fund in an equal ratio, is not in evidence; but the Legislature in creating these new municipal corporations had a right to dictate the terms on which they should exist, if they did not violate

section 23 of the 6th

article of the constitution. But for the acts of the 8th and 11th of March, 1836, it would be a serious question whether the old corporation had any right to the proceeds of the lots in question, or to any of the land or squares in controversy; and it may be further questioned whether the state has done more by the 1st

section of the act of March 11, 1836, (1 Bullard & Curry’s Dig. 129, No. 132,) than to grant the use of the moneys, arising from the sale of the lots mentioned, to the Sinking Fund, for the purpose of producing an interest .to be applied to the payment of the debts of the city. The Supreme Court of the United States, in the case in 10 Peters, 737, abstains from deciding any thing as to the rights of the state and the city to the pieces of ground in controversy. They say the United States have no claim to.it; but they do not decide who has.

The judgment of the District Court was only reversed, and no confirmation of the claim of the corporation is contained in the judgment; so that the rights of the state may not be precluded, unless the two acts of March, 1836, have ceded them. As it is probable that the First Municipality has an interest in the portion of the Sinking Fund under consideration, we see no serious objection to reserving to them the rights allowed by the court below, but we concur with the learned judge that this suit cannot now be maintained against the Commissioners to recover the sum claimed. Judgment affirmed.