Dissenting Opinion: Harlan, J., Fuller, C. J., Lamar, J. necessary, to endorse the date of presentation, the warrant to bear interest therefrom. To provide the necessary funds, all the assets and the assessments provided for by the acts of 1858, and the various acts supplementary thereto, were transferred to the city, and the city was subrogated to all the rights, powers and faculties thereby conferred. The city was expressly required to collect the assessments, (which were, at the same time made exigible and confirmed,) in time to provide for the payment of the warrants. It was authorized to assess those lands in the three original districts, and such others included in the levees, as had not been already assessed; the assessments to be enforced as in the prior acts. All moneys collected were to be passed to the credit of the company, for the payment only of the drainage of New Orleans and Carrollton; and all property, not money, received, to be held in trust, primarily for the same purpose, and finally, if not so needed, for the city. Such were the circumstances under which the city became the administrator and trustee of this important interest and fund: and such were the duties imposed upon her by those capacities. What, now, were the assets committed to her administration, and for which there must manifestly be some sort of an account? They were: 1. A balance uncollected of a levy made in the first district, by the original board........ $500,714 42 in the third district.. 2. Ditto in the second district.. 289,907 40 3. Levy made by the city, under the act of 1871, 627,589 95 281,416 81 . $1,699,628 58 4. Ditto in the fourth district. Total amount chargeable.. This sum includes the assessments against the Leaving due on account of individual 697,836 28 .$1,001,792 30 Dissenting Opinion: Harlan, J., Fuller, C. J., Lamar, J. These large assets, having come to the hands of the city for the purposes of a great public trust, it was bound to relieve itself of the charge assumed by it in some way consistent with the rule of reasonable diligence. In view of its antecedent agency, and its coöperative action in the creation of the trust and its more than willing acceptance of it, added to the fact that it was the party to be ultimately benefited, we are not prepared to accept the theory that it was a compulsory and not a voluntary or contractual trustee, a failure to discharge whose obligations puts less strain upon the moral sense than if the obligations had been purely statutory. And in this connection, it is well to observe that this bill was filed for the purpose of an accounting. 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, as well argued by counsel for the appellee, it cannot be generally true in fact, since the lands are those on which the great city of New Orleans is built, and the assessments ranged from $69 to $140 per acre; second, in those instances in which the assessment was greater than the value of the lands, if there were any such, then the statute made provision by which the lands themselves, on failure of the owners to pay, should be sold and bought in by the city for the fund, and the duty of the city was to do this—in fact, it was done by the original board of the 15th district in the case of the asylum property; third, the statutes also provided, as has been seen, that personal executions should be issued against the owners for arrearages, damages and costs, and there is no showing, in our opinion, of anything like reasonable diligence in the use of this valuable right-a right which the Supreme Court of the State, in 1874, recognized and adjudged. Dissenting Opinion: Harlan, J., Fuller, C. J., Lamar, J. We are impressed with the conviction that, although under the act of 1871, it was the duty of the city to press the collection of these funds at the rate of about $25,000 per month, yet it did nothing more than keep an office open at which the assessees might voluntarily pay, or not pay, as they wished. (2) By a claim that the decision of the Supreme Court in the Succession of Irwin, 33 La. Ann. 63, held that certain personal judgments obtained by the summary processes given by the act of 1871 were void, and nullified the homologation of the tableaux for the entire fourth district. This decision was not rendered until the year 1881, the city then having had charge of this matter for ten years. The decision cannot, of course, be successfully offered as an apology for the antecedent supineness of so long a period. Prior to that, the Louisiana courts had been enforcing the statute of 1871, as we have already shown. And, further, in regard to the Irwin case, if it was of such grave import as to effectually prevent the collection of these moneys, then it was probably violative of contract rights, and on proper proceedings could have been avoided. If it was not of such import, then it is no answer to the obligation of the city to make the collections aforesaid. In fact, the testimony in this case would indicate that the city was deliberately obstructing, not forwarding, the collection of these funds. In December, 1873, after having failed to collect the taxes to pay the warrants when due, the city adopted an ordinance allowing the taxes to be paid in warrants, thus compelling the contractor to sell at a discount or get no money at all. After collecting only $88,000 in three and a half years, with warrants falling due at the rate of $25,000 a month, and making no effort to collect except to keep an office, and never having issued an execution up to January, 1875, the city then denied the right of the warrant holders to have execution, and resisted the mandamus that resulted in the judgment of the Supreme Court sustaining such right. The city did not make any effort, worthy of mention, to collect the tax from the owners independent of the land. After the purchase of the plant from the contractor in 1876, under the statute passed to that end, and the subrogation of the city to all the right of such con Dissenting Opinion: Harlan, J., Fuller, C. J., Lamar, J. tractor, it deliberately abandoned the work, let the canals already dug fill up and the boats and other appliances, for which about $300,000 of warrants were issued, rot unused. By reason of that abandonment and the consequent non-completion of the system the Supreme Court of Louisiana decided, in the case of Davidson v. The City of New Orleans, 34 La. Ann. 170, that the tax could not be enforced. In 1881, pending the decision of the Davidson case, the mayor, by direction of the council, issued a proclamation advising the non-payment of drainage taxes until the validity thereof should be passed on by the Supreme Court, notwithstanding the previous judicial history of these transactions. In 1883 the council appointed a committee to investigate and report whether any drainage taxes were being collected and by what authority, and published in their proceedings the report whereby it was declared the large amount of taxes due and outstanding were not collectible, and in which was set forth the method by which the assignees might get relieved from the assessments. Such are substantially the charges made by the appellant to show that the city, after seeking and accepting the trust, was opposing its execution, instead of enforcing it. (3) By a claim that the decision of the Supreme Court in the case of Davidson v. New Orleans, 32 La. Ann. 245, to the effect that a judgment for a drainage tax will not be enforced where it is shown that the property received no benefit from the drainage, was a great hindrance, as its effect was to release from their liability for the assessment more than half of the first and third drainage districts and almost the whole of the second. The ground of the decision was the abandonment by the city of the work it was charged to do. It is manifest that the city cannot relieve itself of the obligation to collect the assessments avoided by its own default. To meet this proposition the appellee contends that the cost of completion would have been so great that the assessments would have been more than exhausted in completing the work, and the outstanding debt would have remained still unpaid. There were and are uncollected $1,423,235.31, including about $700,000 of the city's own assessment which should, under the circumstances, VOL. CXXXIX-24 Dissenting Opinion: Harlan, J., Fuller, C. J., Lamar, J. be considered money in hand. The appellee states the amount necessary to have completed the system, as projected, "at nearly or quite $700,000." The dues of the city alone would have completed the work according to appellant's own statement and have left a balance for the benefit of warrant holders of about $725,000. But the appellee also claims that when completed there would still have been lands in the district unbenefited, on which the total assessments would have amounted to $500,000, and that these assessments, according to the Davidson case, would not have been collectible. 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, however, 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. What question of that kind may exist, is a question of the district, not of the individual properties. The Davidson decision would wreck every work of a like character we ever knew. The entire levee systems of the Mississippi River would be swept away at once, for the taxes would be void as to all lands above overflow from the river unleveed, and as to all those which lie so low as to remain wet and untillable in the absence of a supplemental system of drainage, even after the completion of the levees. Admit the principle that these general assessments or taxes are to be brought to the test of particular benefits, and the most unexpected and disastrous consequences would follow. Moreover, our criticism on the Irwin case, as to its violation of contract rights already fixed, applies to the Davidson case, if possible, with even greater force. (4) By a claim that the constitutional amendment of 1874, which took effect on the 21st of January, 1875, in terms declared "that the city of New Orleans shall not hereafter increase her debt in any manner or form, or under any pretext." An answer to this claim we do not think necessary. |