UNITED STATES ex rel. KILPATRICK et al. v. CAPDEVIELLE et al., 118 F. 809

After stating the facts as above, PARDEE, Circuit Judge, delivered the opinion of the court. In directing a verdict for the defendants in error, the presiding judge assigned no specific reasons.

The defense insisted upon in the court below, and now in this court, is based upon two propositions: First, that Act No. 5 of the Extra Session of the Louisiana Legislature in 1870 affords the only remedy to which the plaintiffs in error can resort for the enforcement of their decree, and said act prohibits the granting of a mandamus for the collection of judgments against the city of New Orleans; and, second, that since June 7, 1876, when it is claimed the debt now merged in the Jackson decree was contracted, up to £he present time, the city has had. no unexercised power of taxation, and that the present rate authorized by law' is twenty-two (22) mills on the dollar, all of which has been levied.

Act No. 5 of the legislature of Louisiana of 1870 ought not to be permitted to defeat the relator’s right to a mandamus, because, as held by the supreme court of the state in Marchand v. City of New Orleans, 37 La. Ann. 13, said act is not always controlling in the state courts, while the jurisdiction of the federal courts to issue writs of mandamus to enforce judgments is not derived from the state law, but ex necessitate, and from the fourteenth

section of the judiciary act of 1789, now

section 716 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 580]. See Riggs v. Johnson Co., 6 Wall. 166, 18 L. Ed. 768; Bath Co. v. Amy, 13 Wall. 244, 20 L. Ed. 539; Rosenbaum v. Bauer, 120 U. S. 450, 7 Sup. Ct. 633, 30 L. Ed. 743. Also, see Railroad Co. v. Hart, 114 U. S. 654, 661, et seq., 5 Sup. Ct. 1127, 29 L. Ed. 226. We do not understand that the defendants in error claim that since the drainage assessments were levied the authorized maximum limit of taxation on the part of the city of New Orleans has always been reached.

In fact, the proof shows that in the years 1873, 1874, and 1875 the full limit was not reached. The contention that the debt of the city of New Orleans which the relator is now seeking to enforce originated in 1876 on the issuance of the drainage warrants to Van Norden, and not prior thereto, when the assessments for drainage were levied, is in direct conflict with the terms of the decree rendered in favor of Jackson, and also, with the opinion of the supreme court of the United States in City of New Orleans v. Warner, 175 U. S. 120, 144, 20 Sup. Ct. 44, 54, 44 L.

Ed. 96, from which we quote as follows: “The act of 1876 did not so much authorize an increase of the city’s debt as a diversion of the warrants to the purchase of the drainage plant, instead of a payment to the transferee for work done. We think the amendment should receive a construction commensurate with the object intended to be accomplished, namely, the drainage of the city, whether such drainage were •carried out by Van Norden or by the city itself, and that it should not be limited to such warrants as were to be issued for the work.

The debt for the assessments had already been incurred and put in judgment, and the amendment was intended to recognize the existence of such debt, and. to provide that the warrants issued in payment of the same should not be treated as within the scope of the amendment.

Beyond this, however, these warrants were to be issued not only in payment of the drainage plant, but in settlement of Van Norden’s claims against the city for damages connected with the failure of the city to carry out its contract with the canal company •and Van Norden, which, in view of the fact that the drainage plant had been purchased by him for $50,000, may be assumed to have been the greater part of the consideration.

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.” From this statement of the case it clearly appears that the answer of the defendants presents no sufficient reason why the mandamus prayed for should not issue, and that the same might well have been restricted to a general denial to put the relators on proof.

The plaintiffs in error have specifically assigned as errors many possible rulings of the court below necessitating a judgment as directed, but we think the third assignment, to wit: “It appearing from the undisputed evidence that the judgment of relators was based on an extraordinary indebtedness of the city of New Orleans, to wit, assessments against the city of New Orleans, as quasi owner of the streets, squares, and other public places, for the cost of a local improvement, which the city could have incurred only by authority of the Special Laws of the State of Louisiana of 1858, 1859, and 1881, and 1871, under which said assessments were made, the court erred in holding that relators were not entitled to the levy of a special tax to pay said judgment,” —Covers the case, and is well taken.

The assessments for drainage against the city of New Orleans provided for by the drainage laws of 1858, 1859, and 1861 authorized an extraordinary indebtedness of the city, and, as neither those laws, nor any subsequent prior to 1876, when Jackson’s warrants were issued, made any express provision for the payment of the indebtedness so- authorized, it is properly and necessarily to be implied that the legislature intended to authorize the city of New Orleans, as occasion might require, to levy a special tax to discharge the indebtedness authorized. This view of the case is fully supported by City of Quincy v. U.

S., 113 U. S. 332, 5 Sup. Ct. 544, 28 L. Ed. 1001, and adjudged cases there cited. We quote: “On behalf of the city it is contended that when these bonds were issued the act of 1863 prohibited any annual levy of taxes ‘to pay the debts and meet the general expenses of the city’ in excess of fifty cents on each one hundred dollars of the assessed value of its real and personal property. To this it may be replied, as was done in City of Quincy v. Cooke, 107 U. S. 549, 2 Sup. Ct. 614, 27 L.

Ed. 549, in reference to similar language in the orginal charter of the city, that the act of 1863 related to debts and expenses incurred for ordinary municipal purposes, and not to indebtedness arising from railroad subscriptions, the authority to make which is not im< plied from any general grant of municipal power, but must be expressly conferred by statute.

When the legislature in 1869 legalized and confirmed what the city council had previously done touching the subscription to the stock of the Mississippi and Missouri Kiver Air Line Railroad Company, and thereby authorized bonds in payment thereof to be issued, it could not have been contemplated that indebtedness thus created would be met by such taxation as was permitted for ordinary municipal purposes. In giving authority to incur obligations for such extraordinary indebtedness, the legislature did not restrict its corporate authorities to the limit of taxation provided for ordinary debts and expenses.

In Association v. Topeka, 20 Wall. 655, 660, 22 L. Ed. 455, the court, after observing that the validity of a contract, which can only be fulfilled by a resort to taxation, depends on the power to levy the tax for that purpose, said: ‘It is, therefore, to be inferred that, when the legislature of the state authorizes a county or city to contract a debt by bond, it intends to authorize it to levy such taxes as are necessary to pay the debt, unless there is in the act itself, or in some general statute, a limitation upon the power of taxation, which repels such an inference.’ So, in U. S. v.

City of New Orleans, 98 U. S. 381, 393, 25 L. Ed. 225: ‘When authority to borrow money or incur an obligation in order to execute a public work is conferred upon a municipal corporation, the power to levy a tax for its payment or the discharge of the obligation accompanies it; and this, too, without any special mention that such power is granted. This arises from the fact that such corporations seldom possess —so seldom, indeed, as to be exceptional—any means to discharge their pecuniary obligations except by taxation.’ The same question- arose in Ralls Co. Ct. v. U. S., 105 U. S. 733, 735, 26 L.

Ed. 1220, where it was- said: ‘It must be considered as settled in this court that, when authority is granted by the legislative branch of the government to a municipality, or a subdivision of a state, to contract an extraordinary debt by the issue of negotiable securities, the power to levy taxes sufficient to meet at maturity the obligations to be incurred is conclusively implied, unless the law which confers the authority, or some general law in force at the time, clearly manifests a contrary legislative intention.’ Again: ‘If what the law requires to be done can only be done through taxation, then taxation is authorized to the extent that may be needed, unless it is otherwise expressly declared.

The power to tax in such cases is not an implied power, but a duty growing out of the power to contract. The one power is as much express as the other.' See, also, Parkersburg v. Brown, 106 U. S. 487, 501, 27 L.

Ed. 238.” The undisputed evidence shows that the city of New Orleans is indebted to the drainage fund for drainage assessments made in 1861 and subsequently on the streets, squares, and other public places in an amount sufficient to pay the relator’s judgment, and that the city of New Orleans still possesses unused taxing power of 5 mills for each of the years 1862 and 1863, and 1.79 of a mill for the year 1873, 1% mills for the year 1874, and 2j4> mills for the year 1879, all of which could be used for the payment of relators’ judgment.

These facts are made the basis of the fifth assignment of error, and appeal strongly in favor of relief to the relators; but we do not think it necessary to rule thereon, as maintaining the third assignment of error will give the relators plenary relief. The judgment of the circuit court is reversed, and the cause remanded, with instructions to grant a new trial. McCORMICK, Circuit Judge, dissents.