
    No. 5735.
    State of Louisiana ex rel. Warner Van Norden v. The Mayor and Administrators of the City of New Orleans.
    According to tlie provisions of the several statutes of the Legislature creating and regulating the duties of the drainage commissioners for the city of New Orleans, to whose rights and duties the respondents have succeeded, it is the ministerial duty of the respondents to collect the assessments and judgments for drainage taxes, in time to meet the payment of the warrants to he issued to the Mississippi and Mexican G-ulf Ship Canal Company hy the Administrator of Accounts for work done hy said company, and a ' mandamus will lie to compel the performance of this duty.
    As to the objection that the relator could not aoquire, and the Mississippi and Mexican G-ulf Ship Canal Company could not assign their franchises to him, it is one which the respondents are without interest to raise. The transfer, whether in pledge or in full property made to him hy said company, has been recognized hy the Legislature in act 22 of the acts of 1874, proposing an amendment to the constitution limiting the debt of the city of New Orleans, and it is now a part of the organic law of the State. After snob a transfer, thus recognized hy the State, the respondents can certainly raise no objection to said transfer.
    APPEAL from the Superior District Court, parish of Orleans. Ecm-Mns, J. for
    
      Lacey é Butler, Wm. H. Hunt, Mee & Whitaker, Alfred for relator and appellee. B. F. Jonas, city attorney, Samuel P. Blane, assistant city attorney, for respondents and appellants.
   Wyly, J.

This is a mandamus proceeding to compel respondents to collect the drainage taxes for the first, second, third and fourth drainage districts of the city of New Orleans, and to compel them to issue writs of fieri facias on the judgments rendered on the homologation of the tableau of assessments, or the assessment rolls of each and all of the aforenamed districts, as required by act 30 of acts of 1871, and pre.vious acts in regard to the drainage of the city of New Orleans.

The court granted a rule nisi, and at the trial made the mandamus peremptory, so far as to require the respondents to issue writs of fieri faeias and collect, as provided by law, cash sufficient to pay for tbe work now done under act 30 of tbe acts of 1871, to wit: the sum of $78,358. From this judgment the respondents have appealed.

The preamble of act 30 of tbe acts of 1873, entitled “An Act to provide for the drainage of New Orleans,” is the following:

“ Whereas, the proper and efficient drainage of the city of New Orleans is of paramount importance to the sanitary and commercial interests of the city, as also to the State of Louisiana; and, whereas, the Mississippi and Mexican Gulf Ship Canal Company are prepared to immediately undertake the work with the only kind of machinery adapted thereto and now ready for use, and to prosecute the same with energy and economy to completion; therefore be it enacted,” etc.

Sections one, two, three, four and five authorize and empower the Mississippi and Mexican Gulf Ship Canal Company to build certain protection levees aud to make certain canals required for the drainage of New Orleans. 32

Section six makes it the duty of the board of administrators, immediately after the passage of this act, to cause the lines of the protection levees and the canals specified in the various sections of this act to be located, and requires said board to build and run all pumps and draining machines necessary to lift the drainage water from said canals over into Lake Pontchartrain, and to keep the water in the canals in process of excavation at the proper level for the work of excavation.

Section seven provides “ that said Mississippi and Mexican Gulf Ship Canal Company shall be required to' have ready, within fifteen days after the passage of this act, machinery of sufficient power to excavate at least twenty-five thousand cubic yards per month, and to rnove the same the distance required to build the protection levees, and to increase as soon as practicable their machinery to the capacity of atdeast fifty thousand cubic yards per month.”

Section eight provides “that at the end of every month the city surveyor shall examine the work done by said company during said month, and, upon measurement of the width and depth of the canal, canals or parts of canals dug, and protection levees built, shall certify the number of cubic yards excavated and the number of cubic yards of protection levees built during said month; and on presentation of said certificate to the administrator of accounts he shall draw a warrant or warrants on the administrator of finance at fifty cents per cubic yard in payment of the work done. These warrants it shall be the duty of the administrator of finance to pay on presentation to him.”

By section nine it was enacted “that, in order to provide funds for the payment of the work to be done by the said company the three boards of draining commissioners for the drainage districts of Orleans and Jefferson, established under the acts of March 18, 1858, of March 17, 1859, and the several amendments thereto, and any and all other person, persons, or corporations, who may have them in possession, shall transfer to the board of administrators of New Orleans all moneys, assessments, and claims of drainage, in their hands, or under their control, all titles to real estate, all books, plans, tableaus, judgment in favor ot commissioners, the office furniture of said commissioners, a true statement of the claims of said commissioners against the city, to be adjudicated and settled out of the money collected by the city, and everything pertaining to said drainage districts : * * t-Provided, that all money or moneys received by the board of administrators from the said commissioners, from the collection of claims for drainage now due, lrom the collection of drainage assessments, and from any of the sources of revenue contemplated by the provisions of this section of this act, be placed to the credit of the Mississippi and Mexican Gulf Ship Canal Company, and held as a fund to be applied only to the drainage of New Orleans and Carrollton, in accordance with the provisions of this act; and that all property, not money, so received, shall be held in trust for the payment of said Mississippi and Mexican Gulf Ship Canal Company.’ ” * * * By this same section it is further provided: “ That the board of administrators be and they are hereby authorized and directed to collect from the holders of property within the said districts the balance due on the assessments, as shown by the books of the first, second and third drainage districts, under acts of March 18, 1858, March 17, 1859, and the several supplementary and amendatory acts thereto, which said assessments are hereby confirmed and made exigible at such time and in such manner as the board administrators may designate ; provided, that the said board shall collect the assessments herein authorized in time to provide for the payment of the warrants to be issued to the said company at the date of their issue; also to make assessments of two mills per superficial foot in those parts of the three draining districts, as existing under and created by acts of March 18, 1858, and March 17, 1859, and amendments thereto, and on such other lands as are brought within the protection levees contemplated by this act where no assessments have been made; and to execute and enforce the same, as provided for by the several acts of .the Legislature creating and regulating said board of draining commissioners.” * * * *

Considering the provisions of this statute and the acts of the Legislature creating and regulating the duties of the drainage commissioners, to whose rights and duties the respondents have succeeded, we are of opinion that it is the ministerial duty of the respondents to collect the assessments and judgments for drainage taxes in time to meet the payment of the warrants to be issued to the Mississippi and Mexican Gulf Ship Canal Company by the Administrator of Accounts for work done by said company; and that a mandamus will lie to compel the performance of this duty. We think the court did not err in making the mandamus peremptory so far as to require the respondents to issue writs of fieri fiadas on the judgments for drainage assessments, and to collect an amount sufficient to pay relator for the warrants issued by the Administrator of Accounts, and for the work now done under act 30 of the acts of 1871. As to the objection that the relator could not acquire, and the Mississippi and Mexican Gulf Ship Canal Company could not assign their franchises to him, we will remark that it is an objection the respondents are without interest to raise. The transfer, whether in pledge or in full property, made to him by said company, has been recognized by the Legislature in act 22 of the acts of 1874, proposing an amendment to the constitution, limiting the debt of the city of New Orleans, and it is now a part of the organic law of this State. After the transfer has thus been recognized by the State, the respondents can certainly raise no objection to it. They must perforin their ministerial duties, and the relator, as the transferee in ph dge of the franchises of the Mississippi and Mexican Gulf Ship Canal Com-can compel them by mandamus to do so.

Judgment affirmed.

Mr. Justice Morgan took no part in this decision.

Howell, J.,

dissenting There is no provision of the law, in my opinion, which makes it the ministerial duty of the Mayor and Administrators of New Orleans to issue writs of fier.i facias or cause them to be issued. The act of 1871, so far as it refers to tli#s subject (sec. 9), enacts “ that the Board of Administrators be and are hereby authorized and diiected to collect from the holders of property within the said districts the balance on assessments, as shown by the books of the first, second and third drainage districts, under acts of March 18, 1858, that of March 17, 1859, and the several supplementary and amendatory acts thereto, which said assessments are hereby confirmed and made exigible, at such time and in such manner as the Board of Administrators may designate; provided, that the said board shall collect the assessments herein authorized in time to provide for the payment of the warrants to be issued to the said company at the date of their issue; also to make assessments of two mills per superficial foot in those parts of the three draining districts, as existing under and created by the acts of March 18, la58, and of March 17,1859, and amendments thereto, and on such other lands as are brought within the protection levees contemplated by this act, where no assessments have been made; and to execute and enforce the same, as provided for by the several acts of the Legislature, creating and regulating said boards of draining commissionersand provided further, that all the money received by tlie said board trom all the sources contemplated by this act shall be placed to the credit of the Mississippi and Mexican Gulf Ship Canal Company, and held as a fund solely for the drainage of New Orleans and Carrollton, and all property, not money, so received, shall be held in trust for the payment of the said company and ultimately for the benefit of New Orleans, if not needed for drainage.

A reference to the other laws mentioned shows that a discretion was conferred on the several boards of commissioners, just as is conferred on the Board of Administrators by this act of 1871. It is made their duty, certainly, to execute and enforce the several assessments; but as provided for by the law and at such time and in such manner as they may designate, the time to be so as to pay the warrants to be issued by the company. They are also empowered in certain eont-ingeucies to purchase the property sold for the said- assessments. All these provisions of the law clearly show to my mind that while certain duties are imposed on the Board of Administrators, whii-h they should faithfully perform, they are vested with some discretion as to the manner of discharging those duties. They may find that if executions are issued the property will have to be bought by the city, as they are directed to do in certain cases, in order to bring the amount of the judgment as required by the law, and that would not provide-the money to meet the warrants. And when they call upon the clerk, of the inferior court to issue the writs of fieri facias (for they themselves can not do it), that officer may decline for some reason beyond! the control of the Board of Administrators, and then the latter would have to be compelled by mandamus to apply for and obtain at all events a mandamus to compel the clerk to issue the required writs of fieri facias. It is not every duty imposed on a public officer that can be enforced by mandamus. I can not think this is a case for a mandamus, and therefore dissent.  