The cases 'cited 8Upra support the charge; Warfield·v. Booth, ,33 Md. 63. . The plaintiff says that the sums named in the counter-claim did not belong to the defendant, but to a.ll the owners of the Hagar, and that the defendant alone. could not set up a counter-claim. When one of the owners or partners is sued for the entire amount of damages, resulting fromilie breach of the charter-party, and is to be compelled to pay the entire sum, I. think that he can set off the amount due upon the charterparty. If he could not, great injustice might be done. The case of HlYpldns v".,Lane, 87 N;;Y. 501, which was cited by the plaintiff, rests 'pOll a. different state of facts. A new trial is granted. .
from the sum due'to th.,··plailltiff.
CITY OF NEW ORJ,EANS ". STEWART.
(CirCUit Court of L
JdAlmAA!UI! TO JdUNICIPAL BOARD-RillS ADJUDIOATA.
December '1', 189L)
On an application for a writ of mandamus to compel the city of New Orleans to pay a judgment regularly obtained against it, such judgment is conclusive as to the city's liability, and no defense can be made on ti}e ground that the debt was.not paid out of the revenues of the year fol' whicli i.t was contracted, in accordance with Acts La. 1877, (Ex. Sess.) No. 80, p. 47, prOViding that no municipal corporS" tipn· shall expen,d .I\;ny money in any in excess of the actual revenue for that year, and that the revenue for each year shall be devoted to the expenditures . thereof·. U. S. v. New Orleans,98 U. S. 895, followed. OP COUNClr,-,TuATION, 1'ht; leldslature having declared that a 10-mill tax is sufficient to proVide for the city's uiibonded expenditures, it is not within the discretion of the council to exhaust' entire revenue witl1: one class of dis.bursements, and leave others to accumulate; and a writ of mandamus will issue to compel it to pay a valid judgmeut against the city, either out of surplus revenues for the current year, or, if there is noa,vAilablesur,pI\18, to include it in ,the budget for the ensuing year· A cHum that the' city is not bound to pay the' judgment out of the revenues for the cUrfllnt because the ",hole thereof was ,necessary for ordinary expenses, is merit when it apPears that $20,000 of such revenues was expended for a, drainage 'niacliine, which is a permanent improvement, and that the surplQS was over $:l50,QOO, a large portion of, Which remained unexpende,d. '. . .
REMEDY. , . .... ....,
The fact that other judgments besides the rlliator's have been recorded under the act of 1877 does not reqUire that' the writ of mandamus applied for by him shall direct aU the judgments to be paid in their proper order, since th.e court will not undertake ,to enforce the rights of persons who do not invoke i);8 .aid.
Error to the Circuit Court for the Eastern District of Louisiana. firmed.
BY LOCKE, DISTRICT JUDGE.
This was. ap,etition by C. H. Stewart, the relator, filed December 81, 1890, in,the. circuit court of the UI:lited States for the district of Louforo,:writ of mandamus to coil1pel the mayor and council of the city of Ne'f,Orleans to put upon the budget, and appropriate money for tpe judgment for $2,484.92. which had been recovered
MAYOR, ETC., OE' CITY OF NEW ORLEANS 'D. UNITED STATES.
against the city of New Orleans in said circuit court in June, 1888, and filed and registered in the offiee of the comptroller of the city of New Orleans, for payment, according to the provisions of the act of March 17, 1870, being Act .No. 5, session of 1870. The writ was granted, and from this judgment the case is brought to this court. The original petition in the suit in which the judgment was obtained shows that the suit was founded upon certificates issued by the city of New Orleaiisfor services rendered that city, namely,street wages, duro ing the year 1882, and alleges that they were made payable out of th"El revenueS ofsaid year, but that the city of New Orleanl5misappropriated the funds which were so set apart, and destroyed the restriction hith· ertoexisting. The record does not show any traverse or plea to said original petition, but the case;went to trial by the court, the parties in the .cause having waived a jury trial, and, the cause having been.sub· mittedupon the issues offact as well as law, a final judgment was rendered thl'lreon, which was made general and unrestricted. In the return to the alternative writ ofmandamv,s, the judgment was admitted, but it was urged in defense that it was not a liability of the kind contetnplated.by the act of 1870;1 that by Act No. 30 of 1877 the obligations contracteet during any particular year are confined to the revenues of that year; that unless stich revenues pay the claims, it is Rot an indebtedness of the corporation, and consequently nota liability of tbe city j and that noliability can be bl;ldgeted for out of the regular revenue than constituting the alimony of the city, unless there is more is necessary to carryon the government satisfactorily, and provide fOl' the peace, happiness, health, and comfort of its inhabitants. ' F'raniM B. Lee, for plaintiffs in error. OhaB.Louque, for the relator. Before LOCKE and BRUCE, District Judges.
LocKE, District Judge, (after stating the fCLCta atI above.) The question as to whether the debt for the collection of which a mandamus was prayed was a liability of the city of New Orleans or not has been deternlined by the judgment. 'If there could have been any defense made to the action on account of the debt having been contracted for the purposes of the year 1882, and not paid from the revenues of that year, and therefore involving the lIccumulationof an indebtedness such as was prohibited by the act of 1877, it should have been made at the trial of the cause in the court below. In U. S. v· .New Orleans, 98 U. S. 395, the court says: "In the present case the indebtedness of the city of New Orleans is conclusively established by the judgments recovel'ed. The validity of the bonds
lActs La. 1870, No.5, abolished the writ of fieri fncUts, as against the city of New Orleans, and substituted therefor the registration of the judgment with the comptroller of the city, and payment by appropriation by the common council in the order of registration. Bection 1 takes from ,the creditors the right to resort to mandam1t8 upon. the fiscal oftlcers of the city before judgment. Section 2 prohibits the issuance of execu. tions (writs of fieri facias) to enforce the payment of any final judgment against the city, "condemning said corporation to pay any sum of money, "and provides foil' their reg1lltration. Section 3 for the payment of judgments against the city WhiCh are "lIus! and executory. " .. ,
ll}lOn which they were rendered is not now open to question. Nor is the paym.ent the judgments restricted to species of property or revenues, or subject to any conditions. The indebtedness is absolute. If there were any question originally as to a limitation of the means by which the bonds were to bet>aid,itis cut off from consideration now by the judgments·. If a limitation ell:isted, it should have been insisted upon when the suits on the bonds were pending, llond continued in fact that none is thus contin,ued is conclusive on this that none existeQ.."
Also, Ne1JJon v. Police Jury St. Martin'BParish, 111U. S. 716, 4 Sup. Ct. Rep. 648. BuHt:is urged that, although tbismay be a judgment absolute, yet it may !besufficiently examined, for the purpose of ascertaining if it is such a liability as was entitled to regietrationuuder the act of 1870. If we yield to the arguments of cQunsei sQiurgently go back of the judgment for that purpose only,:we find that thecau$eof action was on contract for services and supplieS for tbe year 1882; and that the originalpetition aUeges that the funds, of that year were misappropriated by thecityof·NewOrlelins. Upon these allegations the case was tried, and an absolute judgment 'given. The allegations of the ,petition upon,which the judgment was based, in the absence of: any further record, are. sufficient to show the nature and character of the debt, and the reason why it was not paid from the revenues of that year. There is nothing to show that any pJiovision of the act 'of 1877.was violated. that any money, was appropriated .for the year 1882 in excess of itsrevenucs, nor that any warrant or. evidence of indebtedness:Was issued, except against money actually in the treasury. It certainly cannot be contended that the, act of 1877 was intended to invalidate a debt which was just andlegal.when incurred, on a:c,count of a misappropriation of funds from which it should have Qeen paid.· The reason why the judgment was not made payable from the revenues of the year 1882 is plainly apparent from the allegations of the record that those funds had already been misappropriated, But.we consider·.. that the has determined all those questions" and must be accepted . 0 , as 6naland conclusive. ' In every act in whichthe. budgeting. or estimating, for the amount of revenue. required for the emsuing"year has been considered, it has been expreSsly stated, in terms, that the liabilities shoUld, ,beiocluded in the estimates. That the policy oflegislation and willo£" the legislators is against permitting. an increase of indebtedness, .from which so much financial trouble·has come in-.the past, is distinctly shown·· : If the liabilities of oneyep,r's );Inpaid so can those until the accumulation of a floating ,indebtedness comes to. be regarded as a matter of no importance. In order to prevent this, it appears that the duty ·ofmunicipal officers has been made plain and distinct in this raSpE:ct.rlfhas },leen repeatedly establishep, by aUlle of decisions, both in the' supreme court of tlleUnited States and of this a.tate, that it is the to budget; provide for, and pay .duty of the common ,eouMil of its liabilities. Where it hMlbeenfonmlthatthere had been a more ex, tended power oftaxafioh:at tlie tiIlle ofthe contractupon Which the in-
KAYaR, ETC., OF'CITY OF NEW ORLEANS !1; UNITED STATES.
debtedness was, founded, it has been ordered that that be resorted to; and, where it has been considered that the revenues of the city were only sufficientfor the alimony, or, in other words, the running expenses, of the city for the then present year. resort has been had to future budgets, and the writ issued accordingly. But in no case has it been dedal'ed that it is within the discretion of the city government to payor to refuse to pay its liabilities, and permit the accumulation of the same. We most cheerfully accept the principle that in all matters of state and municipal law, the construction of the supreme court of the state must control, but we fail to find therein such cOllstruct,ion or principle established. In State v. Mayor, 30 La. Ann. 129, a case in which the question was fairly presented, demanding a positive answer, whether or not it was the duty of the city government to provide in the yearly budget out of the funds to arise from the general tax means for paying judgments against the city, and whether a writ of mandamus would issue for the purpose of compelling a performance of this duty, the question was answered in the affimlative. In the case of Moore v. Oity of New ()y.. leans, 32 La. Ann. 726, it does not appear by the statement.of the case and questions under consideration, as found in the opinion of the court, that such question was involved in the determination of the case; nevertheless, the writ was issued .to com pel the performance of what the court tenned a ministerial duty in levying and applying the tax. The same may be said in the case of Salay v. City of New Orleans, 33 La. Ann. 79. This question does not appear to have been involved in the determination of the case at issue. In no case has an applicant for a writ of ma7ldamus to compel a performance of the duty of providing for the liabilities of the city been refused, but in numerous cases has it been granted.. The legislature has declared a 10-mill tax to be sufficient to provide for the city's unbonded expenditures and liabilities, and it is not within the discretion of the council to exhaust the entire revenue with one class of disbursements, and leave the other to accumulate. In truth, it seems to be the plainly expressed intention of both legislative and judicial branches of the governmenfto protect the city of New Orleans from the shoals and quicksands of financial embarrassment on aCcount of any further accuumlation of unfunded indebtedness. In this it is claimed that the entire revenues of the city have been appropriated and are for alimony,-the running expenses,necessary for nourishing, protecting, and preserving the peace and welfare of the city. This is 110t conceded hy relator, but it is contended that se'veral items of appropriations are for permanent improvements, which should not bepaid)i'om .the four-fifths of the revenues which are set apart10r the purposes of providing for' the liabilities and ordinary .It is not within the provinc¢ of a court interfere with the distribqtion of the revenues of a city when the plain duties of its officers are, performed. Nor do we assume to be veatedwith the power to frame budget for thEl city of New Orleans, but we do consider that., we; are ,vested with the power to examine such budget. when made, and" til determine therefrom theeoi··pHullce or non-complinnce with a plain'
and positive duty, when it is based upon an allegation of insufficient rev uues, alld an exhibit presented to substantiate such allegation. By: an act of the legislature, No. 109 of 1886, it is provided that 20 per cent. oBhe revenues shall be reserved for the purposes of permanent public improvements. This would necessarily im ply that the other four-fifths were to ,be devoted entirely to the budget of liabilities and expenditures. public improvements could not, even in the absence of such legislation, be considered and q.eemed the necessary alimony of the city under any proper construction of that word, and this conclusion simply declares this well-established principle. Upon an examination of a copy of of 1891, an exhibit filed with respondent's answer, to justify tqeallegation that the entire t:evenues are necessary for the alimony of the city, we find in item 41 an appropriation of the amount of $20,000 f()r a, purpose,of which the;respondentsin their answer say: "It, that a dr.ainage machine is a permanent pllblicimproveAccepting respondent's own of, the character of this it would certainlY appear to be improperly taken froD} tl:le, 2lmpunt to be so neoessary for the alimoIlY of the city. of several other items of appropriations which have been objected to by relator,and only accept respondent's declaration of of the item mentioned. All of these are doubtless proper audjulilt, but, when they are offered as an excuse for the non-payment of ana,m,Qunt incurred £orthe ,necessary alimony of the city in a past it,seem/! that they should bl! paid from the reserve set apart for that Pllrp9se. To show that such appropriation from such portion of the revepuawas not absolutely necessary, we can but refer to the exhibitof the reserve fund. ' This fund amounted, it apPl;lars by ordij to $362,060.24. Of this amount but $1f35,OOO was appropliated, leaving a large proportion of the reserve undisposed of." ,We :W,ake no comment upon this further than to mention it in anto the plea of insufficient revenues and inability tp pay declared ' liabilities. We flii), to, find in the answer of re.$pondents and the flxhibit of the budget ot 1891 such evidence of the necessity for the entire revenue of the city for the purpose of its would justify neglect of a performance of a plain and declared duty· . But onE! point remains, and that is that relator, if entitled to the writ, is only entitled to it to pay the entire list of judgmentsJ'ecorded under the act orl877, and that his judgment be paid only in order of recordation. Totpis it is only necessary to say, as the supreme court of the hllv;e said in State v. Oity of New Orleans, 37. La. Ann. 18: "We are called upon to con!!ider the -rights of other judgment creditors whose.j,lldgrnents rank th,at,?f rehltOl'S i,n order of registry. The record does not lldvise ,us Whether their judgments are based on contracts. or whether they rest upoo ekuses of action arising prior to the constitutional amendment of 1874. ,I'tnnllybe that none of them can compete with relators in the relief sought; but at all events. :the unexhausted powers of taxation are ample to s,tiMy all; and if they are entitled to like rights with relators. and have negexercise them. there is no l'easoll why relat01'8 should suffer. ,.
NAT. BANK 1I.IUMOB'
We find, therefore, no error in the actit:>nof the' court below, and the judgment for a peremptory writ of mandamm must be affirmed, with costs; but so much time has been occupied by the delays of this case that the budget of 1891 may no longer be available, and it is ordered that this case be remanded to the court below, with instructions that a peremptory writ of mandamU8 issue, commanding the respondents herein to appropriate and pay from any appropriation of 1891, of which there is any surplus remaining in the treasury after all liabilities and expend.. itureshave been paid, as contemplated in section 5 of Act No. 38 of 1879, a sum sufficient to pay said judgment and interest and costs in the court below and herein; and, if no such sum remains of any appropriation of the said budget of 1891, after all such liabilities and expenses have been paid, to, proceed at their first regular meeting after service of said writ to budget and 'appropriate in the estimate and appropriations for the year 1892 such sum, asaforesaidj and it is st:> ordered. PARDEE, Circuit Judge, did not participate in the hearing or determi. I)ation of this case. BRUOE,District Judge. I concur in the conclusion and judgment of my Brother LOCK:E in this case. It is tpy opinion that it was the duty of the common council of the city to put the relator's judgment upon the budget for the year 1891 j that it was an act ministerial in .Its' character, and mandatory, under the provisions of the act of Ex. Sess. 1870; that it was not within the discretion of the common council to postpone thetelatt:>r's judgment. upon the ground that all the revenues of the city for the year 1891 are required to provide for what is called the alimony of the city, or on any other ground, and that the ,decisions of the supreme court of the,state cannot be held, upon a fair consideration, to have settled the law in Louisiana otherwise.
FmsT NAT. BANK Ol!' CLABION,PA., tI. HAMOL
(0WcuU Oourt of Appeal" Ninth
Januar7 26, 1.l!9'A)
The non-joinder of il. co-debtor in a contract or judgment can only be takel1a4· vautage of where such omill!lion does Dot appear 011 the face of the c(jmpl&int, by a plea In abatement, and a defendant who falla to ao pleadIa deemed to have waived
' , . ,
(SVUabtu b1/the Oourt.)
Error to the Circuit Court of the United States for the Distriet of Washington. , At Law. Action by the First Nationa1.Bank of Clarion, Pa., against George D., Hamor on judgments obtained in Penneylvanie.. From a Judgment, for, defendant, p!a.int.iiIbroushte:r.ror. .