United States v. New Orleans

ERROR to the Circuit Court of the United States for the District of Louisiana.

In 1541, the Parliament of England was concerned that the men of the realm were losing their archery skills, whittling away the time playing senseless board and coin games. This concern is clearly set out in the first paragraph of the Act for the Maintenance of Artillery and the Debarring of Unlawful Games, as well as a requirement for all men to practice their bow and arrow skills on a regular basis.

This was a petition presented in April, 1876, by Morris Ranger, the relator, for a writ of mandamus to compel the city of New Orleans to pay three judgments. The petition alleges that he had recovered them in the Circuit Court of the United States for an amount exceeding in the aggregate $59,000 against the city, on its bonds and coupons issued under the provisions of acts of the legislature of Louisiana, passed on the 15th of March, 1854, and designated as Nos. 108 and 109; that executions had been issued upon the judgments and returned unsatisfied; and that there was no property belonging to the city subject to seizure thereon.

It also alleges that in June, 1870, the city had sold eighty thousand shares of stock of the New Orleans, Jackson, and Great Northern Railroad Company, which it held, for the sum of $320,000, and that by the act No. 109, of 1854, these shares were for ever pledged for the payment of the bonds issued under its provisions; that the city should therefore be compelled to pay out of their proceeds so much of the judgments as appears on the face of the records to have been rendered upon the bonds; or, in case their payment cannot be enforced in this way, that it should be compelled to levy and collect a tax for that purpose, and also a tax to pay so much of the judgments as was rendered upon bonds and coupons issued under the act No. 108, of 1854; but that the mayor and administrators, who represent and exercise the powers of the city, refuse to pay the judgments out of any funds in their possession or under their control, or to levy a tax for their payment. The relator therefore prays the court to order them to show cause why a writ of mandamus should not be issued compelling them to apply the proceeds and to levy a tax as mentioned.

The order to show cause was accordingly issued; and the city authorities appeared and filed an answer to the petition, in which they admitted the recovery of a judgment by the relator,-speaking of the three judgments as one,-the issue of executions thereon, and their return unsatisfied, the sale of the eighty thousand shares of the capital stock of the New Orleans, Jackson, and Great Northern Railroad Company for $320,000, and the receipt of the money by their predecessors; and set up as a defence to the prayer of the petition that the judgment was recovered upon certain bonds issued by the city to that company under the act of March 15, 1854, No. 109, making no mention of the act of No. 108; that no tax for the payment of the principal of the bonds is directed to be levied by that act or any other act of the legislature; that, as respects the interest on the bonds, provision is made for its payment out of the back taxes due to the city, and inserted in its budget for 1876; and that the proceeds arising from the sale of the stock of the railroad company are not in the treasury of the city or under their control, having been used and expended by their predecessors. They therefore prayed that the petition be dismissed.

The relator demurred to this answer. The court overruled the demurrer and refused the writ; and from its judgment the case is brought to this court.

The city of New Orleans was incorporated under the name of 'the mayor, aldermen, and inhabitants of the city of New Orleans,' by an act of the legislature, approved Feb. 17, 1805, the sixth section of which provides:--

'The said mayor and city council (aldermen) shall have power to raise by tax, in such a manner as to them may seem proper, upon the real and personal estate within said city, such sum or sums of money as may be necessary to supply any deficiency for the lighting, cleansing, paving, and watering the streets of said city; for supporting the city watch, the levee of the river, the prisons, workhouses, and other public buildings, and for such other purposes as the police and good government of the said city may require.'

An act approved March 8, 1836, amending that act, constituted in effect a new charter, and divided the city 'into three separate sections, each with distinct municipal powers.'

The fourth section provided:--

'Each of said municipalities shall possess separate corporate rights, and are hereby declared to be distinct corporations, and shall possess generally such rights, powers, and capacities as are usually incident to municipal corporations,. . . and, in general, shall possess and exercise within their respective limits all such powers, rights, and privileges as are now possessed by the corporation of New Orleans.'

The three municipalities thus created were, with the city of Lafayette, consolidated into one, by acts approved Feb. 23, 1852. Acts La., 1852, Nos. 71, 72, pp. 42, 55.

Sect. 1 of the former act provides:--

'All that portion of the parish of New Orleans on the left bank of the river Mississippi shall be the city of New Orleans, and all the free white inhabitants thereof shall be a body corporate by the name of the 'city of New Orleans,' and by that name they and their successors shall be known in law, and shall be capable of suing and being sued,' &c.

Sect. 22 provides:--

'That upon the first organization of the common council of the city of New Orleans, as hereinbefore provided, the city of New Orleans, as established by this act, shall be vested with all the powers, rights, privileges, and immunities incident to a municipal corporation, and necessary for the proper government of the same; and upon the said organization of said council all the powers, rights, privileges, and immunities possessed and enjoyed by the first, second, and third municipalities of New Orleans, and by the general council of the city of New Orleans, shall cease and terminate so far as regards the said municipalities and general council, and be vested in the city of New Orleans, as established by this act.'

Sect. 37 provides that the old city debt (prior to 1836) and the debts of the separate municipalities shall be assumed by the city of New Orleans, and that bonds shall be issued therefor, to be called the 'consolidated debt;' and that 'from and after the passage of this act no obligation or evidence of debt of any description whatever, except those herein authorized, shall be issued by the city of New Orleans or under its authority; nor shall any loan be contracted, unless the same be authorized by a vote of the majority of the qualified voters of said city, which shall be taken in the manner prescribed by the city council, after ten days' proclamation by the major, in the newspaper chosen by the city council; and no ordinance creating a debt or loan shall be valid unless such ordinance shall provide ways and means for the punctual payment of running interest during the whole time for which said debt or loan shall be contracted, and for the full and punctual discharge at maturity of the capital borrowed or debt incurred; and such ordinance shall not be repealed until the principal and interest of the capital borrowed or debt incurred are fully paid and discharged.'

In 1854, the legislature passed two acts by which the city was authorized to subscribe to the stock of the New Orleans, Opelousas, and Great Western Railroad Company, and the New Orleans, Jackson, and Great Northern Railroad Company, and to make the subscription immediately payable in bonds of the city, for $1,000 each, having twenty years to run, &c., and requiring the repeal of ordinances authorizing former subscriptions.

The terms of the two last-named acts, mutatis mutandis, are identical. Acts La., 1854, Nos. 108, 109, pp. 69, 72.

The act authorizing the subscription to the stock of the New Orleans, Jackson, and Great Northern Railroad Company provided, among other things, as follows:--

'SECT. 1. Be it enacted by the Senate and House of Representatives of the State of Louisiana, in General Assembly convened, that it shall be lawful for the common council of the city of New Orleans to subscribe to the stock of the New Orleans, Jackson, and Great Northern Railroad Company, in a sum not exceeding $2,000,000.

'SECT. 2. Be it further enacted, &c., that any ordinance authorizing such subscription shall contain the following provisions, to wit:--

'1st, A statement of the number and amount of shares for which the city subscribes.

'2d, That the subscription of the city shall be made by the mayor, and shall be payable in bonds of said city for $1,000 each, having twenty years to run, bearing interest at the rate of six per cent per annum, with interest-coupons attached, payable semiannually in New Orleans or New York, as the company entitled to receive them may prefer, transferable by the indorsement of the president and secretary of said company, and convertible into the stock of said company at the option of the holders, at any time within ten years after their date.

'3d, That a special tax on real estate and slaves shall be levied in January of each year, sufficient to pay the annual interest on said bonds, specifying the rates of said tax, which shall be collected at the same time and in the same manner as the consolidated loan tax of said city; and all ordinances, resolutions, or other acts passed by said council, after the first day of January in each year, except an ordinance to impose said consolidated loan tax, and an ordinance to impose a tax for the payment of interest on bonds which may be hereafter issued for subscription to the New Orleans, Opelousas, and Great Western Railroad Company, shall be null and void, unless a resolution imposing a special tax for the payment of the interest on said bonds issued to the railroad company herein named shall have been previously passed: Provided, that no levy of a tax for the payment of interest on said bonds shall be made after the payment of dividends of six per cent per annum on the stock of said company held by the city, as hereinafter provided, which dividends shall be applied by the city to the payment of the interest. And provided, further, that whenever the dividends on said railroad stock of the city shall amount to more than six per cent per annum, the excess, after the payment of interest, shall be applied to the purchase of the city bonds issued under the provisions of this act; it being understood that when dividends for less than six per cent per annum are received on the railroad stock of the city, a tax for interest shall be levied for the difference only between the amount of said annual dividends and the amount of the annual interest.

* *  *  *  *

'SECT. 3. Be it further enacted, &c., that the city bonds issued to said railroad company shall be received by it at par value, and said railroad company shall issue to the city of New Orleans therefor certificates of stock for an amount equal to the amount of the bonds received, and the stock of the said company thus issued to the city of New Orleans shall remain for ever pledged for the redemption of said bonds: Provided, however, that any holder of said bonds who may desire to convert them into the capital stock of the company to which they may have been issued shall, on application to the treasurer of said city, and on surrender to him of the bonds to be converted, receive from said treasurer a transfer of the stock represented by the bonds surrendered, and said bonds shall be immediately cancelled.'

The other sections are not material for the disposition of the present case.

The following act of the legislature was approved March 6, 1867:--

'SECT. 1. Be it enacted by the Senate and House of Representatives of the State of Louisiana, in general assembly convened, that the mayor and administrators of the city of New Orleans, or such other officers, aldermen, or administrators as may hereafter be ordained and established, be and they are hereby authorized and directed to exchange all recognized and valid bonds of the city of New Orleans and the late cities of Jefferson and Carrollton for bonds known as the premium bonds of the city of New Orleans, in accordance with the plan adopted by the city council, and approved by the mayor on the 25th of May and 31st of August, 1875. The said premium bonds shall be dated the 1st of September, 1875, and bear interest at the rate of five per cent per annum, from the 15th of July, 1875; they shall be signed by the mayor, the administrator of finance, and the administrator of public accounts, as commissioners of the consolidated debt, and countersigned, when issued, by such parties as the council have designated heretofore, or may hereafter designate, with the authorization of the supervising committee hereafter named.

'SECT. 2. Be it further enacted, &c., that all outstanding bonds bearing interest shall have the interest computed up to the first day of July, 1875, and thereafter the said bonds, when exchanged, shall bear interest as provided in the ordinance above ratified, which provides for the premium bonds.

'SECT. 3. Be it further enacted, &c., that the allotment of series and premiums which have been made by virtue of ordinance No. 3233, administration series, adopted Aug. 31, 1875, by the city council, are hereby ratified and approved, and that further allotments shall take place on the fifteenth day of April and the fifteenth day of October of each year, and of premiums on the fifteenth day of January and the fifteenth day of July of each year, or on such other date as the council may prescribe: Provided, that payments be not made later than the fifteenth day of March and the fifteenth day of September of each year.

'SECT. 4. Unimportant.

'SECT. 5. Unimportant.

'SECT. 6. Be it further enacted, &c., that it shall be the duty of the city council, in the month of December of each year, or in the annual budget annually adopted for the ensuing year, to include an amount sufficient to meet and pay the principal and interest of the premium bonds, together with premium included, in the several allotments of series and premiums fixed for such year by the aforesaid ordinances and this act. It shall be the duty of the council annually to levy an equal and uniform tax on all the assessed property within the corporate limits of the city, at a rate sufficient to provide the amount included in the budget as aforesaid, and said tax so levied shall constitute a special fund to be used for no other purpose than the payment of said bonds and interest on the said premiums comprised in said allotments, and the funds so raised shall be placed to the credit of an account to be called the premiumbond account, and no money from said fund shall be paid out except on the joint authority of the commissioners of the consolidated debt. The said tax so to be raised shall be denominated the premium-bond tax, and shall be separately mentioned in the tax rolls and receipts: Provided, that the taxable power of the corporation of the city of New Orleans for all purposes, including general administration, school, police, lighting, salary of officers, court expenses, and every other purpose of government, including the sum to be raised to pay the premium bonds, as above stated, shall never, until the full complete and final payment of the said premium bonds, exceed the rate of one and one-half per cent on the dollar of all the assessed value of property subject to taxation within the limits of the said city of New Orleans. The above limitation of the taxable power of the corporation is hereby declared to be a contract, not only with the holder of the said premium bonds, but also with all residents and tax-payers of the said city, so as to authorize any holder of said premium bonds, resident or tax-payer, to legally object to any rate of taxation in excess of the rate herein limited. It being also a part of the consideration of this contract that the city of New Orleans shall be incompetent to incur any debt or obligation, as now provided by the Constitution of this State, until the final payment and extinction of the premium bonds aforesaid.

'SECT. 7. Be it further enacted, &c., that no tax for the payment of bonds or interest on bonds other than that authorized by the preceding sections, shall be levied either for the year 1876, or any year or years thereafter by the city of New Orleans, and that all existing laws requiring or authorizing the city council to levy any tax whatsoever for bonds or interest on bonds, other than said premium bonds, be and the same are hereby repealed; and it shall be hereafter incompetent for any court to mandamus the officers of said city to levy and collect any interest tax other than that provided in this act, or in case of such mandamus, by a receiver or otherwise, to direct the levy and collection on any such tax.

'SECT. 8. Unimportant.

'SECT. 9. Unimportant.

'SECT. 10. Unimportant.

'SECT. 11. Be it further enacted, &c., that in addition to the obligation of the said city to provide annually the sum required for the execution of the premium-bond plan, at least a tax of one-half of one per cent annually, to be used in the execution of the provisions of this act; and if the product of said half of one per cent be more than adequate for the payment of the drawn premium bonds, and the premiums as above provided, then the surplus to be used in retiring the outstanding bonds; Provided, said half of one per cent taxation be considered as part of the one and a half per cent taxation to which the taxing power of the city is limited in this act; the intention of this section being to limit the city taxation to one and one-half per cent annually until the entire extinction of the bonded debt; to authorize the council to levy annually out of the one and one-half per cent taxation a sum adequate to the annual execution of said premium-bond plan, and after the year 1881 to levy at least one-half of one per cent for the carrying out of said plan, and to distribute the surplus realized therefrom, if any, in retiring the outstanding bonded debt.

'SECT. 12. Unimportant.

'SECT. 13. Unimportant.

'SECT. 14. Unimportant.

'SECT. 15. Be it further enacted, &c., that this act in all its provisions and limitations be held a contract between the city of New Orleans, the holders of said premium-bonds, and the taxpayers or residents of said city, so as to authorize any of the contracting parties to resist any and all contracting of debt by the said city, or increase of taxation above the rate limited in the previous provisions of this act.

'SECT. 16. Be it further enacted, &c., that this act take effect from and after its passage; that all laws or parts of laws inconsistent herewith be and the same are hereby repealed, and that all ordinances of the city of New Orleans conflicting with this act be and are hereby repealed.'

Mr. D. C. Labatt for the plaintiff in error.

1. Whenever a municipality is expressly authorized to levy a tax for the payment of its obligations, it will, by mandamus, be compelled to do so to satisfy a judgment recovered upon them, where an execution has been returned unsatisfied. The Board of Commissioners of Knox County v. Aspinwall et al., 24 How. 376; Von Hoffman v. City of Quincy, 4 Wall. 535; Benbow v. Iowa City, 7 id. 313; Supervisors v. Rogers, id. 175; The Supervisors v. Durant, 9 id. 415; County of Cass v. Johnston, 95 U.S. 360.

2. If the statute authorizing or creating debts does not provide the means of paying them, the power to tax in order to raise the means will be held to be ipso facto conferred, unless there is an express limitation to that power which forbids such inference. Loan Association v. Topeka, 20 Wall. 655; Lowell v. Boston, 111 Mass. 460; Commonwealth v. Commissioners, 37 Pa. St. 277; Same v. Same, 40 id. 348; Same v. Same, 43 id. 403; Coy v. City Council of Lyons City, 17 Iowa, 1; Madison County Court v. Alexander, 1 Walker (Miss.), 523; Gibbons v. Mobile & Great Northern Railroad Co., 36 Ala. 439; Ex parte Selma & Gulf Railroad Co., 45 id. 730; City of Chicago v. Hasley, 25 Ill. 595; Hasbrouck v. Milwaukee, 25 Wis. 122; Ex parte Parsons, 1 Hughes, 282.

3. The provision in the act of 1854, that the stock issued to the city should remain 'for ever pledged for the redemption of said bonds,' does not require the holder of them to first resort to said stock for payment before he can demand it from other funds. On the contrary, only a statutory pledge for the payment of the bonds by way of collateral security was created.

4. It is not alleged in the answer that the statutory limit of taxation has been reached, nor does it appear that any limit existed when these bonds were issued. No limit subsequently imposed can curtail the power or affect the duty of the city in respect to them. Von Hoffman v. City of Quincy, supra; Butz v. Muscatine, 8 Wall. 575; Milner's Adm'r v. Pensacola, 2 Wood, 641, and cases there cited; Commissioners v. Rather, 48 Ala. 446, and cases there cited.

Mr. B. F. Jonas and Mr. Henry C. Miller for the defendants in error.

1. The taxing power is vested in the Legislative Department of the government. A mandamus is only effective to compel the levy of a tax, when that department has directed or authorized such tax to be imposed. If no tax has been provided for the payment of the bonds on which the judgments in this case were recovered, granting the mandamus would be an assumption of legislative power, and the application for the writ must therefore necessarily fail. Rigg v. Johnson County, 6 Wall. 166; Supervisors v. United States, 18 id. 71; Heine v. The Levee Commissioners, 19 id. 655; Rees v. City of Watertown, id. 107.

The act under which the bonds were issued provided only for a tax to pay the annual interest on them until the dividends should amount to that interest. An absolute prohibition of any other tax was, therefore, necessarily implied. It was believed that the stock itself, 'to remain for ever pledged for the redemption of the bonds,' would prove a full equivalent for them, and that before their maturity the dividends on it would not only pay the interest, but produce a surplus. Hence the provision that the excess after paying the interest should be applied to purchase them. A tax for the principal would be repugnant to the manifest intent of the legislature, and it is actually prohibited by evident implication.

2. The relator maintains the doctrine that the power to tax is implied from the power to contract, and that whenever a judgment against a municipal corporation is unpaid, the exercise of the taxing power can be coerced by suit. It is difficult to reconcile that doctrine with the principle, heretofore acknowledged to be axiomatic, that the objects of taxation, the mode in which taxes are to be levied and collected, and the purposes to which they are applied, are subjects under the exclusive control of the Legislative Department. The latter must determine how the public debts are to be provided for; and while taxation is the ordinary means of raising the public revenues, they are often drawn from other sources. But this principle is completely ignored, if the mere power of such a corporation to contract confers on its creditor the right to compel the levy of a tax, when his debt exists in the form of unsatisfied judgments. For if without a law expressly authorizing such levy to pay them, the exercise of the taxing power can be enforced by judicial process, that power will, to a certain extent, be transferred from the law-making branch of the government and be vested in the courts of the country.

3. The act of March 6, 1876, prohibits the city from levying any tax for bonds, or the interest on them, except that thereby authorized, and excludes the relator's bonds. This legislation gave him no right to the tax he asks. The principal of his bonds has been provided for in the act of 1854. The power of the legislature to modify, change, and repeal taxation is unrestricted, provided the taxes in existence when the debt is created are preserved to the creditor. Von Hoffman v. The City of Quincy, 4 Wall. 535.

MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.