
    No. 9693.
    Edward Conery, Jr., et al., vs. The New Orleans Waterworks Company et als.
    Taxpayers have a standing in court to contest, upon proper charges, the validity of a municipal ordinance and contract executed under it, whenever its enforcement may increase the burden of taxation. A district court, the lower limit of whose jurisdiction is fixed, has jurisdiction to pass on a controversy when the matter in dispute, which is the value of the contract assailed, exceeds that limit; and the Supremo Court lias jurisdiction wheu that value exceeds $2,000. Handy et al. vs. City of New Orleans re-affirmed.
    Where an exception is filed denying the capacity or right of the plaintiff to sue or s1 and in judgment, and together with this exception an answer to the merits or a peremptory exception determinative of the case, and the lower court sustained the first exception and dismisses the suit, this Court, on reversing that judgment, will remand the cause to he tried on the other issues raised hy the pleadings.
    APPEAL from the Civil District Court for tire Parish of Orleans. Lasarus, J.
    
      JS. II. Barrar, Ii. II. Browne, 13. I). White and O. 13. SehmicU for Plaintiffs and Appellants:
    1. The district courts of this Sítate are courts of superior aud general jurisdiction, with as full power to issue the writ of injunction in all proper cases as any Lord High Chancellor.
    2. One or more resident taxpayers lias the right to invoke that jurisdiction, without any allegation or proof of special injury or damage, to restrain municipal corporations and municipal officers from making unlawful disposition of corporate funds or corporate property, the creation of illegal debts and the making of void contracts increasing the burden of taxation.
    3. En such cases the thing- sought to be enjoined is the subject matter of the controversy, and Mío moasure of the jurisdiction of the court.
    4. En such cases, it is the settled doctrine of all the courts of this country, State and Federal (except How York, where it lias been settled hy statute), that the taxpayer stands in judgment for the whole community, irresi>ective of the distributive interest he may have in the matter at issue. .Pro hac vice, he is considered as the payer of all the taxes. Orunrptonvs. Zabriskie, 101 IT. S. 601; Gifford vs. B. B. Co., 10 "N. J.. Eq. 171; Tíaltimoro vs. Gill, 31 Md. 375; Wade vs. Richmond, 18 Graft (Va.) 583; Bago vs. Allen. 58 Pa. St. 338; New London vs. Brninard, 22 Conn. 552; Harvey vs. Indianapolis. 32 Ind. 244; Barr vs. Deniston, 19 H. H., 170; Stevens vs. B. B. Co., 29 Vt. 546 ; Webster vs. Harrington, 32 Conn. 131; Terrell vs. Sharon, 34 Conn. 105; Morrell vs. Plainfield, 45 H. H. 126; Hormand vs. Coe, 8 "Nob. 18; Oliver vs. Keightley, 24 Tnd. 514; Drake vs. Phillips, 40 111. 388; Grant vs. Davenport, 36 Iowa 396; Douglas vs. Placerville, 18 Cal. 643; Smith vs. Majaiviclc, 44 Ga. 163 ; Hewmeyer vs. M. & M. B. B. Co., 52 Mo. 81: Wright vs. Bishop, 88 111. 302: Bice vs. Smith, 9 Iowa, 570; Place vs. Providence, 12 B. I. 1; Allison vs. By. Co. 9 Bush (Ky.) 247; Bound vs. B. B. Co., 45 Wis. 543; Elyton Land Co. vs. Ayres, 62 Ala. 413; Bayle vs. City of New Orloans, 8 Am. and Eng. Corp. cases 329; White vs. Co. Com. 12 Id. 485: Whelen’s case, 11 Id. 174; City of Delphi vs. Sturzman et al., ll’Id. 37; City of Valparaiso et al. vs. Gardner, 7 Id. 626; Boper vs. McWhorter et al., 4 Id. 360 ; Sacket vs. New Albany, 3 Id. 85 ; Ayer vs. Lawrence, 59 H, Y. 192: Dillon Mxrn. Corp., § 731 to § 737.
    5. This doctrine has been repeatedly recognized in Louisiana. Flagg vs. St. Charles, 27 Ann. 319; Babington vs. same, lb. 321; Stevenson vs. Weber, 29 Ann. 105; Taxpayers’ Association vs. City of K. O. et als., 33 Ann. 567; Saloy et al. vs. City of Kew Orleans, lb, 79: Rivet et al. vs. City, 35 Ann. 134.
    
      J. JR. Beckwith for Defendants and Appellees:
    To authorize a taxpayer to stand as plaintiff in a suit having for its object the rescission of a contract made by a municipal corporation, the plaintiff must not only show that he is a taxpayer, but set forth and disclose in his petition a state of facts which, if true, render the contract assailed absolutely void, not simply voidable. People vs. Mayor, etc., of Brooklyn, 4 Comst. 419; Billón on M. C., § 55; Spaulding vs. Lowell, 23 Pick. 71; Hodge vs. Buffalo, 2 Denio 110; Smith vs. Madison, 7 Ind. 86; Kyle vs. Malin, 7 Ind. 34-37; Livingston vs. Peppin, 31 Ala. 515; Mayor vs. Cabot, 28 G-a. Rep. 50; Wells vs. Atlanta, 43 Ga. Rep. 76; City of Vincennes vs. Callender. 86 Ind. 484; Valparaiso vs. Gardner, 97 Ind. 2; ¿Tones vs. Richmond, 18 Grattan, Va. 517.- Smith vs. Richmond. 15 A Vail 429 ; Willard vs. Kewburyport, 12 Pick. 229.
    Every municipal corporation has all of the power of administration of locuL municipal affairs expressly granted in its charter, and all incidental powers necessary to carry such powers into execution and effect ancl operation. Cases above cited and Dillon on Mun. Corp. 55. and cases there cited in note.
    A municipal corporation with power to sue and be sued has authority to settle its contentions by compromise. This right also grows out of its authority to create debts and incur liabilities. Billon on Mun. Corp., § 396; Bean vs. Jay, 23 Maino 117. 131; Meeoli vs. Buffalo, 29 K. Y. 198; Baileyville vs. Lowell, 20 Maine 178; Kelson vs. Milford, 7 Pick.' 18; Augusta vs. Ledbeater, 16 Maine 45; People vs. Supervisors. 27 Cal. 655; People vs. Coon. 25 Cal. 648; Melville vs. Dixfield, 30 Maine 157; Petersburg vs. Maffin, 14 111. 193; Dillon on Mnn. Corp,, § 398.
    Any consideration which will make a valuable consideration for a contract between individuals will constitute a valid consideration in a cont ract by or with a municipal corporation, a moral obligation alone is sufficient to support a promise of a municipal corporation, if sufficient to support a promise if the same state of thiugs existed between individuals. Gilford vs. Supervisors, 13 N. Y. (3 Kern) 149; Same ease, 24 Wend, and 18 Barb. 615; Billon on Mun. Corp., § 44; Brewster vs. Syracuse, 19 K. Y. 116; People vs. Mayor, etc., of Brooklyn, 4 Comst. 419: Thomas vs. Lelaud, 24 AVond. 65 : Shelby County vs. Railroad Company, 5 Bush (Ky.) 225; Philadelphia vs. Mold, 58 Pa. St. 320; Cooley on Constitutional Limitations, 380, 491 ; Blanding vs. Burr, 13 Cal. 343; People vs. Onondaga, 16 Mich. 254; Lycoming vs. Union, 15 Pa. SI. 166; Kelson vs. Milford, 7 Pick. 18; Pike vs. Middleton, 12 K. H. 281: Briggs vs. Whipple, 6 Vt. 95.
    Under the general power and duty vested in municipal corporations to provide for the protection of public health and the extinguishment of fires, tlie corporate authorities have power to contract for a public water supply, and are* the sole judges of tlie best means of obtaining the same, and their discretion in this respect is not subject to review by the courts, unless tlie moans adopted arc expressly prohibited by law. Town of Livingston vs. Peppin, 31 Ala. Rep. 545; Mayor et al. vs. Cabot, 28 Ga. Rep. 50; AVolls vs. Atlanta, 73 Ga. Rep. 76; Vincennes vs. Callender, 86 Ind. 484; Valparaiso vs. Gardner, 97 Ind. 2; Dillon on Mun. Corp., §§ 58, 59; Railroad vs. Evansville, 15 Ind. 395 ; Page vs. St. Louis, 20 Mo. 136; Railroad Company vs. Kow York, 1 Hilton (K. Y.) 562; Hale vs. Houghton, 8 Mich. 458.
    
      Blanc & Butler and G. A. Breaux on the same side.
   Tlie opinion of tlie Court was delivered by

Todd, J.

This is an action on the part of the plaintiffs, residents of the- city of New Orleans, alleging themselves to be taxpayers to the city in a sum exceeding $10,000, against the city of New Orleans and the New Orleans Waterworks Company and others, seeking to restrain the execution of a contract entered into between the city and the said Waterworks Company on the 3d of October, 1884, and to prevent the council of the city from making any appropriations out of the public treasury in furtherance of the contract and the ordinance authorizing it; and further asking that said contract and ordinance be declared null and void.”

The petition charges as the ground of nullity that said contract and ordinance violate expressly the terms of the chai ter of the company, and are ultra vires, unconstitutional, null and void; and sets forth at great length the causes or reasons of the illegality and nullity propounded.

To this petition the city of New Orleans filed the following exceptions :

1. That plaintiffs have no capacity to stand in judgment.

2. That the petition disclosed no cause of action.

The Waterworks Company presented exceptions, which though differently formulated were in substance the same as the above.

The judge a quo, for reasons assigned in a lengthy and elaborate opinion, sustained the exception as to the right or capacity of the plaintiffs to maintain the action or stand in judgment, and dismissed the suit.

From this judgment the plaintiffs ajipealed.

This precise question was invoked in the case of Handy et al. vs. City of New Orleans, recently decided and not yet reported.

Like the instant one, that was a case where a number of taxpayers .and residents of the city joined in a suit for the annulment of a contract and ordinance, of the city touching the wharf lease, on grounds very similar in every respect to those urged in the case before us.

We. quote from the syllabus of that case to show the identity of the questions involved in the two cases, and how they were decided :

“ Taxpayers have a standing in court to contest upon proper charges the validity of a municipal ordinance and contract executed under it, whenever its enforcement may increase the burden of taxation.

“A district court, the lower limit of whose jurisdiction is fixed, has jurisdiction to pass on such controversy when the matter in dispute, which is the value of the contract, exceeds that limit; aud the Supreme Court has jurisdiction on appeal when the value exceeds $2000.”

It plainly appears, therefore, from this recent ruling of this Court, amply supported by the authorities cited in the opinion, that in the instant case the decision of the lower court upon the exception in question was erroneous.

Notwithstanding that this question of the rights or capacity of the parties to stand in judgment was the sole question decided by the court a qua, as abundantly shown by the reasons therein assigned for the judgment rendered; yet the counsel on both sides have indulged in a lengthy and very able discussion of the exception as to “no cause of action” filed, but not determined in the court below.

We have examined thoroughly the record of the case, and are satisfied that there exists little or no dispute as to the facts out of which this controversy has grown; and that therefore the determination of the exception of “no cause of action” will determine fully the merits of the cause. This vital issue has not been passed upon or even considered by the judge a quo, as we learn from his written opinion in the record.

It is the province of the appellate court to review the proceedings of the inferior court, and to determine whether its rulings and decrees therein embraced are right or wrong, and not to deal'with matters and issues distinctly presented by the pleadings but not considered or decided by that court. 19 L. 207; 9 R. 256; 7 Ann. 622; 10 Ann. 552; 11 Ann. 746; 15 Ann. 159.

We conclude, therefore, that it is proper to remand the cause, that the all-important issue raised by the exception referred to, not passed on by the court of the first instance, may be there tried and determined.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court sustaining the exception touching the right or capacity of the plaintiffs to maintain the suit and stand in judgment and questioning the jurisdiction of the court, be and the same is hereby reversed and the cause remanded to be proceeded with according to law; the costs ol' the lower court thus far incurred in the exception overruled and of this appeal to be'paid by appellees, and the further costs to abide the final issue of the case.  