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decided: March 9, 1891.



Author: Brewer

[ 139 U.S. Page 349]

 MR. JUSTICE BREWER, after stating the facts as above, delivered the opinion of the court.

The bill in equity in this case was based on the judgment at law. That judgment determined the direct liabilities between the parties. It absolved the defendant from any primary obligation of debtor to creditor. It left it chargeable only as trustee of a fund out of which plaintiff's claim was to be paid. It was like a judgment, which in fact against an estate is nominally entered against the administrator thereof, to be satisfied out of the property of the estate and not out of the individual property of the administrator. The propriety of this judgment has not been questioned. No proceeding for review or reversal has been instituted. It has been accepted by the complainant as a correct adjudication of the rights between the parties; and in passing, it may be observed that its adjudication of rights was unquestionably correct. The scope of the entire legislation, from its inception in 1858 to its close in 1872, was local improvements for the benefit of adjacent property, with payment only through special assessments; and did not contemplate a work of general benefit, whose expense was chargeable to the municipality at large. The legislation of 1858, 1859 and 1861, under which the work was commenced, ignored the municipality entirely. It subdivided an area, of which the city was a portion, into draining districts, and cast upon a board of commissioners for each draining district the responsibility of the work and the assessments. The scheme was one of special assessments, as distinguished from municipal tax for general benefits. The distinction between the two is obvious and well recognized. It is stated by Cooley

[ 139 U.S. Page 350]

     in his work on Taxation, page 416: "The general levy of taxes is understood to exact contributions in return for the general benefits of government, and it promises nothing to the persons taxed, beyond what may be anticipated from an administration of the laws for individual protection and the general public good. Special assessments, on the other hand, are made upon the assumption that a portion of the community is to be specially and peculiarly benefited, in the enhancement of the value of property peculiarly situated as regards a contemplated expenditure of public funds; and, in addition to the general levy, they demand that special contributions, in consideration of special benefit, shall be made by the persons receiving it. The justice of demanding the special contribution is supposed to be evident in the fact that the persons who are to make it, while they are made to bear the cost of public work, are at the same time to suffer no pecuniary loss thereby; their property being increased in value by the expenditure to an amount at least equal to the sum they are required to pay. This is the idea that underlies all these levies."

While the acts of 1871 and 1872 bring the municipal defendant into a scheme for subsequent duties, they do not bring it in as a primary debtor, for whose benefit the work is to be done, but simply as the agency by which the special assessments are to be collected; the trustee, as it were, of the special assessments for the benefit of the contractor. So that while the judgment at law measures the rights and obligations of the parties to this bill in equity, if we were at liberty to look beyond the judgment to the antecedent facts, we should be compelled to hold that the judgment rightfully determined those obligations; that the city never was chargeable with the burden of primary indebtedness, but stood to the plaintiff only as assessor and collector of the special assessments. Properly accepting this judgment at law as an adjudication of the measure of his rights against the city, the complainant charges the defendant with three violations of duty out of which he claims a recovery. He charges, in the first place, that the city did not collect these assessments when it ought to and could have done so. Secondly, he says that as owner of streets and public

[ 139 U.S. Page 351]

     grounds it was directly liable to the drainage fund for a large amount, which it has not paid; and that, therefore, its failure as collector to collect from itself as debtor to the fund, authorizes a court of equity to proceed directly against it for those unpaid assessments. And, thirdly, he says that by the purchase under the authority of the act of 1876 the city assumed the duty of completing the contemplated work; that, failing to do so, it became responsible for all injuries resulting from such non-completion; and that, in consequence of such non-completion, anticipated collections failed and special assessments became non-collectible, and the failure becomes a proper ground of recovery against the city for any amount which could have been, but was not, collected.

Before considering these matters, it should be premised that to the extent that the city of New Orleans may be considered a trustee, it is a compulsory, and not a voluntary and contractual trustee. The legislation of February 24, 1871, by which, for the first time, it became connected with these local improvements and assessments, gave it no option as to price or party, but, prescribing and naming both, gave it simply discretion as to the places and extent of the work. It authorized and empowered the canal company to dig the works and fixed the price therefor. The obligations cast upon the city were purely statutory, and while they were, in respect to the party doing the work, and the collection of assessments, somewhat in the nature of a trust, they are more to be regarded as statutory obligations, a failure to discharge which puts less strain on the moral sense. Indeed, the statute connects rather the officers of the city than the city itself with the work. It is true the act provides that the title to the lands necessary for the works shall be procured and held for the benefit of the city of New Orleans; but it requires that such title shall be so procured and held by the board of administrators of the city. It also provides that the extent and nature of all improvements shall be designated by such board; and that such board shall be required to build and run all works and drainage machines necessary to lift the water from the drainage canals over into Lake Pontchartrain, and to do all other work necessary

[ 139 U.S. Page 352]

     to facilitate the work of the contractor selected and employed by the State. The administrator of accounts was directed to draw the warrants on the administrator of finance for the work done. All the assets and assessments accumulated and made under the prior statutes were transferred to the board of administrators of the city. The prior assessments were confirmed and made exigible at such time and in such manner as the board of administrators might designate; and such board was authorized to make an assessment of two mills per superficial foot. So, that, while the title of the act is, "to provide for the drainage of New Orleans," and while the city comes into the statute as a party to be ultimately benefited, and whose officers are charged with the administration, yet, nowhere in its sections is the burden and duty of the work cast upon the municipality as such. The paramount idea of the statute seems to be not the casting of a duty upon the city, to be discharged in such manner and by such means as it shall select, but rather to transfer from the boards of the original draining districts to certain officers and agents of the city the duty of carrying into effect the drainage system.

We do not mean to be understood as affirming that no duty or liability was cast upon the city by this statute as such, or that the action of the city council thereafter and on April 27, 1871, was not within at least the implication of the statute. All we mean to say is, that neither the full power nor the general duty was cast upon the city, and that the designation of its board of administrators as the agency to carry on the work of drainage already undertaken by statutory direction by the local boards of separate districts placed upon the city only a limited responsibility for that which such board might do or omit to do.

The significance of these observations is clear. There is wide divergence in the authorities as to the circumstances under which the liability of a city to a contractor for local improvements arises in case of the non-payment of the special assessments. Into that field of inquiry we do not care to enter. See 1 Dillon on Municipal Corporations, 4th ed., sections 481 and following, and notes.

[ 139 U.S. Page 353]

     If ever there was a case in which the responsibility of a city should be narrowed, this is one. By the legislation of the State, it was denuded of all freedom of action. It had no choice of contractor or price. Neither the property to be taxed, nor the means or method of collecting the assessments, was entrusted to its discretion. This is not a case in which there was a failure on the part of the legislative body, the city council, to prescribe and provide sufficient machinery for the collection of assessments. No superintendence of the financial department, whether as to the property to be assessed, the amount of the assessment or the collection thereof, was entrusted to the municipality. All this financial power was placed directly, by state action, without its consent, in one of its official boards. Thus denuded of freedom of action, it may properly insist upon the narrowest limits of responsibility. If the financial duty was devolved, without its consent, upon one of its administrative boards, and such board was derelict of duty, it may properly say to a complaining party, your remedy was mandamus, to compel prompt and efficient action by that board. In respect to a kindred question, the neglect of the city council, Judge Dillon pertinently asks, "why should all be taxed for the failure of the council to do its duty in a case where the contractor has a plain remedy, by mandamus, to compel the council to make the necessary assessment and proceed in the collection thereof with the requisite diligence?" Section 482, 1 Dillon on Municipal Corporations, 4th ed.

If that suggestion be pertinent where the dereliction is that of the city council, the legislative assembly of a city, the body charged primarily with the duty of making suitable provision for the discharge of all municipal obligations, how much more is it true when such general legislative assembly is without power and charged with no duty, and full responsibility rests with a separate administrative board? The contractor is specially interested in the full and prompt discharge of its duty by this administrative board. The remedy of mandamus is open to him to compel its action. On what principle of right and justice can he ignore this remedy and charge the municipality and burden all the taxpayers of the city?

[ 139 U.S. Page 354]

     But supposing the dereliction of this board of administrators was an omission on the part of the city, what then, under the facts of this case, would be the measure of liability? It will be noticed that neither expressly nor by implication was there any guaranty of payment, as appeared in the case of Memphis v. Brown, 20 Wall. 289. Whatever obligations were assumed were only those of collection. The mere fact of non-collection does not prove dereliction of duty. From 1858 to 1871 this drainage work, with the duty of assessment and collection, was vested in certain local boards. The total assessments during those years amounted to $1,433,152.25. The amount collected in cash and warrants was $334,941.62. In addition, there was transferred to the commissioners, on non-payment of assessments, lands of the nominal value of $171,239.11; or a total collection of about half a million on a million and a half of assessments. It stands to reason, and scarcely needs the support of testimony, that during these many years the available assessments were collected; and that what remained, which was the large bulk, was charged upon property not worth the assessment, and for that reason was not collectible. The testimony of Mr. Guthrie, who was the representative of the canal company and its assignee, is "that he would not take the property bought in by the commissioners for non-payment of assessments, and pay the taxes thereon." If they, during these many years, were unable to collect but a small fraction of the assessments in cash, if the property they took was not worth the taxes, what can be said of the balance, or the possibility of enforcing the collection of assessments thereon?

Further than that, we are not limited to mere matters of inference. It appears affirmatively that the city provided an office and officers for the collection of these taxes; and, according to the testimony given by the assignee of the canal company, the officer in charge was diligent in his efforts to collect the tax. It appears, also, that the canal company had an agent to look after this matter of collection of taxes, who offered all reasonable inducements to secure their payment. Again, the assignee of the canal company, pursuing the remedy

[ 139 U.S. Page 355]

     which was open to him, of mandamus to compel the seizure and sale, under proper writs, of the real estate subject to these assessments for the payment of certain warrants, secured an order of the court therefor. Fifteen hundred and seventy-one writs were issued in obedience thereto, and the gross proceeds of these writs was $32,466.69. It needs not the supporting testimony of the agent of such assignee to induce the belief that the most available property was that pursued by these proceedings. Still further, the efforts to collect were largely hindered by two decisions of the Supreme Court of Louisiana. One, in the case of The Succession of Irwin, 33 La. Ann. 63, by which practically the creation of the fourth drainage district, and the assessments therein, were declared null and void; and the other, in the case of Davidson v. The City, 34 La. Ann. 170, in which it was ruled "that a judgment for a drainage tax will not be enforced when it is shown that the property, far from being benefited, was injured by the alleged drainage."

When to all these is added the fact that large portions of these draining districts were swamp and overflowed lands; when one of the burdens of complaint here is, that the city, by failing to complete this work of drainage, had left the lands in such condition as to be of practically no value; it is obvious that if the duty of collection rested primarily and absolutely on the city, it would be difficult to hold it derelict of duty therein, and renders very pertinent the language of the learned Circuit Court which decided this case in the court below, (38 Fed. Rep. 779,): "As to failure to collect, when these assessments were handed over to the city to collect they had been assessed 13 years, and for that period had been in the hands of commissioners created expressly for the conduct of the drainage system, and with no other business. If such bureaus had failed to collect for such a period, the inference is strongly forced upon us that the assessments were substantially uncollectible, especially by a municipal corporation, herself crushed by debts. This is corroborated by the outcome of the mandamus proceedings taken by Van Norden, transferee of the company, and as warrant-holder, to compel the city to

[ 139 U.S. Page 356]

     issue writs of fieri facias against the owners in 1876. To the application for that writ the city answered that the cost of the proceeding would equal, in her opinion, the amount realized. The result showed her estimate to be nearly correct; for the cost of the 125 writs selected by the warrant-holders, and therefore presumably the best for the purpose, was $34,000, and the amount collected under them only $36,000."

The second contention is that the city was itself a debtor to this drainage fund for nearly $700,000; that it had misappropriated a portion of the fund which it did receive; that as trustee of these assessments it was its duty to collect from itself as debtor to such fund; and that having failed so to do it can be properly charged in this proceeding. Considerable discussion took place on the argument, and is also found in the briefs, as to whether streets and other public property can be subjected to a lien for a share of the cost of local improvements, or whether the city stands in such relation to these properties that it can be held liable as owner. It is unnecessary to enter into the merits of this discussion. It may be that streets and other public grounds cannot be sold for non-payment of assessments for local improvements or other taxes, and it may be that the city is not technically their owner, and yet, at the same time, it may be true that the city, as representing the public, may, under proper proceedings, be charged as debtor for the proportion of the cost of local improvements, which, by the rule established, would fall upon such public property.

Neither do we need to examine the various decisions of the Supreme Court of Louisiana, cited by counsel, or seek to determine what is the law of that State in respect to this matter. For the purposes of this case we assume that the various assessment proceedings, taken in connection with the decision of the Supreme Court approving the homologation of the tableaux, operated, if not to cast a specific lien upon the streets and other public grounds, at least to charge upon the city an obligation to the drainage fund for that share of the total cost of the drainage determined by the proportion of the superficial feet of streets and other public grounds to the entire area of

[ 139 U.S. Page 357]

     the drainage districts. Upon that assumption the obligation of the city to the drainage fund amounted to several hundred thousand dollars. Assuming that to be true, the contention of appellee is that it has paid into that fund far more than such amount. It is admitted that the city has issued sixteen hundred thousand dollars of its own bonds, taking up thereby a proportionate amount of the drainage warrants. It is not questioned by complainant that if this issue of bonds is to be taken as a payment of its indebtedness to the drainage fund, its obligations to that fund have been fully discharged, and, in addition, that the amount of such contribution in excess of its obligations to that fund more than covers all alleged misappropriation thereof. In other words, the sixteen hundred thousand dollars exceeds both the obligations of the city to the fund and its alleged misappropriation of any part thereof. But the contention of complainant is that there is nothing in the legislation, the ordinance, the warrants, the bonds, or other proceedings, which expresses an intent to make this contribution one in discharge of such indebtedness; and that, if it simply gave these bonds to the fund, if other and ultimate corporate benefit was the consideration of their issue, it cannot be affirmed that they were intended or ought to be taken as payment of the original obligation created by the assessment proceedings. The answer to this view is clear and just. It is true that ordinance number 814, which provides for the refunding of warrants into city bonds, contains no declaration that such refunding shall be in discharge of the city's obligation, as assessee, to the drainage fund; and that the assessment proceedings contain no receipt or release of the city as assessee, by reason of its issue of bonds. On the face of the record there is no discharge of the city's obligation as assessee; and if we rest upon the letter, it perhaps could not be denied that the city is still a debtor to that fund; but equity looks beyond the form to the substance of things, and these are substantial facts: For thirteen years a drainage system had been in force, in respect to which the city had no duty and no obligation other than as supposed owner and assessee of certain public grounds. The assessment proceedings had proceeded

[ 139 U.S. Page 358]

     so far that there was a large apparent obligation of the city to the drainage fund. In 1871 an act of the legislature is passed, empowering the canal company to complete the work, transferring to a subordinate administrative body of the city all assessments theretofore made, and imposing upon it the further duty of assessment and collection. No provision is made by the legislative act of payment for the work done or to be done, otherwise than through the collection of these local assessments. In that emergency the city, by ordinance, says to the contractor named by the State, go on with the work, and if the warrants issued in payment therefor be not satisfied out of the assessment collections at the end of the year, they may be exchanged for city bonds. The work progresses, and warrants are issued and exchanged for city bonds, which have passed into the markets of the world and remain the undisputed obligations of the city, and to an amount far in excess of all the assessments charged against the city. In other words, the city, as assessee, owing the drainage fund a certain debt, puts into that fund twice the amount of the debt. Can any creditors of that fund thereafter equitably charge the city as debtor to that fund, because when it put its moneys into that fund it did not in express language say. I put these in in discharge of my indebtedness? It will be borne in mind that no new consideration passed from the contractor for this contribution of the city to the drainage fund. No legislative act contemplated direct obligation on the part of the city. From first to last all meant local improvement, to be paid by special assessments; and the contractor, all these years, had only legislative authority to look to the special assessments for payment. Its contract was entered into and performed, with knowledge that the only legal right it had for payment consisted in these assessments. Without further consideration, the city put into this fund these bonds, and they were accepted by the contractor. It is doubtless true that the motive of the city was to anticipate the collection of the assessments, and to put into the hands of the contractor available assets to insure speedy performance of the work, but the obligation of the contractor was to do the work, and it gave no new obligation,

[ 139 U.S. Page 359]

     no new consideration, to the city or any other party, for these bonds. To say after this contribution of the city to this fund, a contribution without consideration except in discharge of its debt to the fund, that because it was not expressed that the contribution was to be taken as in discharge of the indebtedness, a court of equity will permit the contractor or its assignees to treat the contribution as a donation and charge the contributor as a debtor, would be a mockery of justice and an insult to equity. It must be borne in mind that a city is not like a private individual, with absolute freedom of contract and donation. It is simply the representative of the citizens and taxpayers, a trustee for their interests; it has no general powers of donation,

and its contribution to a fund can never be considered as a donation when there is an indebtedness to that fund to be discharged. Indeed, if there were no indebtedness, the contribution, as a whole, might well be considered as ultra vires, and, if by the issue of negotiable securities to that fund an indefeasible obligation had been assumed by the city, it might in equity hold that fund as debtor to it for such amount. Much stress is placed by counsel for appellant on this point, and large reliance is placed on the fact that in these bond transactions there was no declaration of an intent to appropriate them to the payment of the city's indebtedness, as assessee, but, as we have indicated, such omission does not militate against the rights created by the contribution. If the city, as assessee, owed this fund seven hundred thousand dollars, it may rightfully answer to

any demand of the contractor, or its assignees, that it pay such amount into the fund, I have already paid it, and it is no reply to that answer to say, when you paid it you did not declare that you paid it in discharge of that indebtedness. It is enough that the city paid it, and paid it without other consideration than the discharge of its indebtedness. We think this contention of the appellant must also fail.

The remaining proposition is, that under the authority of the act of February 24, 1876, the city purchased from the canal company and its transferee all rights, franchises and privileges possessed, and all tools, machinery and apparatus

[ 139 U.S. Page 360]

     belonging to said company or its transferee; that having made such purchase, it abandoned the work then incomplete; and that the failure to complete the work left large portions of the realty within the drainage districts of comparatively no value, and thus rendered impossible the collection of the assessments. One satisfactory answer to this is, that the testimony indicates that if the work contemplated had been completed the property would have still remained in its valueless condition of swamp and overflowed lands, without other and further work. It would, to say the least, be ignoring the significance of a large amount of testimony, to hold that, if the work as contemplated had been finished, the lands would have been drained and made valuable; but we do not base our decision upon the results of a completion of the contemplated work; we rather place it upon the other ground -- that a municipality which abandons a contemplated and intended work of public improvements, assumes thereby no obligation to any parties who have invested on the faith and expectation of benefit from the completion of the work. When a city or State contracts with an individual or company for the doing of certain work, the right remains to the contracting parties, at any time, to abandon that work; no obligation arises to third parties, who become interested in one way or another in the completion of the work; there is no guaranty that the contracting parties may not at any time abandon it; or abandoning it, that any contingent, further, and speculative liability will arise in favor of such third parties. When the city bought out the contractor, it did not assume his debts. A municipality may, with the consent of its contractor, at any time abandon contracted work. Such abandonment does not make the city liable for the debts of the ...

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