
    No. 92.
    Virginia Jones, Administratrix, vs. A. Currie et al.
    In order to recover against public officers liaving the control and distribution of public monies, for non-payment of a debt liquidated by a judgment against the corporation, to force-which, a mandamus was granted and which was placed on the budget of expenditures, it is necessary to prove that the fund required to pay was raised, that it was diverted, and that the creditor has sustained loss and injury.
    ApPEAL from the First District Court, Parish of Caddo. Taylor, J.
    
      
      J, W. Jones, for Plaintiff and Appellant:
    1. Article 209 of the Constitution of 1879, which limits the powers of municipal taxation to ten mills on the dollar, cannot affect the rights of antecedent contracts of the city of Shreveport. They are protected by the Constitution of the United States, which forbids States to pass laws impairing the obligations of contracts. This is no longer an open question in the jurisprudence of this State. 31 An. 765; 32 An. 409, 726, 884; 33 An. 79, 1179.
    2. Municipal corporations have no inherent powers of taxation, hut can tax only as the State has thought proper to permit. 33 An. 1179.
    3. Under the city charter of 1871, as well as the charter of 1878, the city had power to levy taxes not exceeding H per cent., which can only he levied in one year for the ensuing year. 33 An. 1180, and the charters there referred to.
    4. The revenues of the city thus raised for the ensuing year must he applied to meet the expenditures and liabilities as set down in the budget. City charter of 1878, p 288-9, Sec. 12; 33 An. 1181.
    5. The defendants, in disbursing the taxes gathered from the people otherwise than the liabilities specified in the budget, were wrongdoers^and iu fault, and thereby damaged plaintiff and are liable for same. C. C. 2315*16. And mistakes and honest intentions will not excuse the offenders for torts. Dillon on Mun. Cor. par. 176, and note to same as to liability for torts, p. 299, par. 691. Cooley’s Con. Lim. p. 259.
    6. The measure of damages, is the amount collected by taxation and-otherwise by the defendants from the people and misapplied, which is the sum as claimed by plaintiff. The defendants having exercised the right once, cannot force the payment a second time* Cooley on Lim. p. 259.
    
      Win. A. Seay, for Defendants and Appellees :
    1. In order to render the officers of a municipal corporation liable personally it must he shown that they refused to obey a peremptory mandamus to levy a special tax. Dillon on Municipal Corporations, § 691; 11 Wall. 136^.
    2. The placing of a part of plaintiff’s judgment on the annual city budget is not the levying of a special tax, or a contract binding the city to devote the proceeds of the tax of that year to its full payment.
    3. A peremptory mandamus on one class of officers, under one form of tho city government, cannot be extended so as to operate another class, under a different form, two years after its issuance.
    4. All the creditors of a municipal corporation have an equal right to he placed on the annual budget and he paid in concursu. 33 An. 1183. If, after paying tho greater part of the plaintiff’s judgment, the city officers should wait until the other creditors should have received their fair proportion, they would he exercising a sound discretion and could pot-he compelled by mandamus to pursue a different course.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action to hold personally responsible the defendants, who are the Mayor and Trustees of the City of Shreveport, for an alleged diversion of funds raised to satisfy a judgment which plaintiff represents against the corporation, and on which $2,350 remain due.

The defense is, that the taxes, etc., were not levied for the special purpose of paying the judgment, but with a view to satisfy, as far as the same could j nstify, all the budgeted debts and liabilities of the city after provision made for its alimony, and tliat what taxes, etc., were thus realized, were accordingly applied.

From a judgment in favor of the defendants, the plaintiff has appealed.

It appears that, in order to secure a satisfaction of the judgment, a mandamus had been obtained in Sept., 1875, directing the then municipal authorities to “forthwith proceed and collect a sufficient tax and discharge tho judgment of plaintiff and all costs.” This order was served in August, 1878.

The defendants were inducted into office in 1878. Finding the judgment unsatisfied, they placed it on the budget of that year, with other debts, to be paid in 1879; but passed no ordinance to levy a special tax and made no special provision for it.

The evidence shows that the funds proceeding from taxes, licenses and fines, after being applied to the alimony of the city, were distributed pro rata among the city creditors recognized on the budget, and that the amount accruing on the judgment in question was actually applied to it, reducing it, as stated, to $2,350.

The plaintiff claims that part of the funds, which should have been applied to a further satisfaction of the judgment, was diverted and used to pay liabilities not in the budget.

We have looked through the transcript, and specially the Comptroller’s report for 1875, and although we.find that a saving of some $3,000 was made, we have failed to discover any accounted misappropriation of the same to such liabilities or otherwise, as charged by plaintiff.

Surely there was no diversion of funds for private purposes. If the amount was used to extinguish corporate debts, the plaintiff has not sustained such injury thereby as demands that the defendants, who are not charged with bad faith, should be mulcted personally to pay the balance due, when the corporation is well able to pay her debts, particularly that represented by the plaintiff. The only injury which can be complained of is the deprivation of the enjoyment of the money ; but for such deprivation, the very judgment allows eight per cent, interest. Dillon, M. C., § 691 and note.

Had the diversion charged taken place, and liad the plaintiff thereby sustained loss and injury, there can be no doubt that the defendants would have been liable.

Judgment affirmed, rvith costs.  