
    (46 South. 796.)
    No. 16,992.
    STATE ex rel. DOUGLAS v. KENNEDY et al.
    (May 11, 1908.
    Rehearing Denied June 22, 1908.)
    On Motion to Dismiss.
    1. Appeal and Ekrob — City Offices — Bonds —Mandamus.
    The City of New Orleans has a right to appeal from a judgment in a mandamus suit against its treasurer, ordering the payment of money out of municipal funds. The exemption ■of the city from giving bond in judicial proceedings does not extend to its ministerial officers.
    [Ed. Note. — Eor cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 943, 2005, 2010.]
    On the Merits.
    2. Mandamus — Payment of City Debts — Remedies of Creditor.
    Section 1 -of Act No-. 5, p. 10, of 1870 (Extra Session) prohibits creditors of the city of New Orleans from enforcing the payment of claims out of the municipal treasury by mandamus proceedings directed against the city’s auditing and disbursing officers. The remedy of such creditors is by ordinary action against the corporation. The statute' directs how judgments shall be registered and paid, but the remedy of a judgment creditor to compel payment out of a particular budget appropriation need not be now decided.
    3. Municipal Corporations — Appropriation of Funds;
    The council of the city of New Orleans has no authority to divert the funds appropriated in an annual budget until all the expenditures provided for therein have been paid.
    (Syllabus by the Court.)
    Appeal from Civil District Court, Parish of Orleans; Fred Durieve King, Judge.
    Action by the state, on the relation of one Douglas, for a writ of mandamus to C. R. Kennedy, comptroller, and others. From a judgment making the writ peremptory, defendants appeal.
    Reversed, and suit dismissed.
    Henry Garland Dupré and St. Clair Adams, Asst. City Atty., for appellants. George Montgomery, for appellee.
   LAND, J.

From a judgment making the writ peremptory, the defendants were allowed an appeal without giving bond, and the city of New Orleans made itself a party after judgment, and was granted an appeal without giving bond.

This is a mandamus proceeding to compel the city comptroller to warrant for, and the city treasurer to pay, certain paving certificates issued pursuant to a contract between the relator and the city of New Orleans.

Motion to Dismiss.

Relator bas moved to dismiss tbe appeals on tbe following grounds:

(1) That the original defendants have not furnished the appeal bond required by law.

(2) That the city of New Orleans is not a party to this suit, and is without interest to appeal as a third person.

The first proposition was sustained in State ex rel. George v. Mount, City Treasurer, 21 La. Ann. 177, on the ground that the defendant did not represent the city of New Orleans in the litigation, and that the exemption in favor of the city, being in derogation of the general law, cannot he extended to its officers. That ruling has never been reversed, nor has it been abrogated by subsequent .legislation. In tbe case of Insurance Co. v. Board of Assessors et al., 40 La. Ann. 371, 3 South. 891, a suit for the reduction of an assessment, the city of New .Orleans was made one of the defendants, and the ruling is applicable only to the State Tax Collector and the Board of Assessors, who represented the state In the litigation.

The second proposition was overruled in State ex rel. City of New Orleans v. Judge, 22 La. Ann. 120, where it was held that the city had a right to appeal from a judgment in a mandamus suit against the city treasurer.

We see no good reasons for disturbing either decision. The motion to dismiss is therefore overruled; the city of New Orleans being the only real party in interest.

On the Merits.

The relator entered into a contract with the city of New Orleans in June, 1905, for repaving a part of Poydras street. Under the terms of the contract, the city’s portion of the cost of the work, represented by the usual certificates, was to be paid out of the reserve fund budget for the year 1907. The work was duly performed, and was accepted in May, 1906. The necessary certificates were issued to relator, amounting in principal to $55,002.90 and bearing 5 per cent, interest from date. In November, 1906, the city council adopted a budget of expenditures for the year 1907, and appropriated out of the reserve fund for that year the sum of $61,000 for repaving Poydras street, pursuant to the ordinance under which the contract was let to the relator. In November, 1907, the city council by ordinance amended the budget of 1907 so as to increase the alimony of - the city beyond the 80 per cent, allowed by law, thereby reducing the reserve fund available for the payment of relator’s claim. Whereupon the relator instituted the present mandamus suit.

The facts are not disputed, but as a matter of law it is urged by the city of New Orleans that relator’s remedy is by ordinary action against the city as provided by Act No. 5, p. 10, of the Extra Session of 1870. The first section of the act reads as follows:

“That from and after the passage of this act, no court within the state shall have authority or jurisdiction to allow, order, hear, entertain or enforce any summary process or proceeding, or-order of mandamus, or any order or proceeding in the nature of an order or writ of mandamus, either against the Controller, Deputy Controller or any auditing officer of the city of New Orleans, the object of which shall be, either directly or indirectly, to compel said Controller or Deputy _ Controller, or auditing officer, to issue- and deliver any order or warrant for payment of money, or against the treasurer, assistant treasurer, or any officer or officers charged with the disbursement of the moneys of the city of' New Orleans, the object of which shall be, directly or indirectly, to enforce the payment of money claimed to be due from the city of New Orleans to any person, persons, corporation or corporations whatsoever, but all actions or proceedings for the recovery of any sum of money claimed to be owing by the city of New Orleans shall be in the ordinary form of action instituted against the city of New Orleans as a. corporation, and not against any branch, department or officer thereof, and shall in all respects,, be conducted in the same manner as ordinary actions.”

The second section prohibits the issuing of writs of fieri facias against the city of New Orleans, and makes it the duty of the council to provide for the payment of judgments by annual budget appropriations. The fourth section makes the auditing and disbursing officers of the city of New Orleans responsible on their bond to any person damaged or suffering loss by their failure to perform their-duty or by reason of their neglect or malfeasance. ■

In State ex rel. Strauss v. Brown, 30 La. Ann. 78, the constitutionality of this abt -was affirmed. That was a mandamus suit to compel the auditor of public accounts of the city of New Orleans to issue a warrant for the-amount due on certain pay rolls. The suit was dismissed on an exception of no cause of action based on Act No. 5, p. 10, of the-Extra Session of 1S70. The court followed the plain words of the statute, and held that its manifest object was to restrict creditors-of the city to the ordinary forms of action in the enforcement of their claims, whether liquidated or not, and to protect the property and revenues of the city from seizure under execution, by providing that judgments should. be registered and paid in their regular order by budget appropriations.

In State ex rel. Canal Navigation Co. v. Mayor, etc., 30 La. Ann. 129, the court compelled the city council by mandamus to make budget appropriations for the payment of registered judgments.

In a subsequent suit between the same plaintiff and the city authorities and officers (State ex rel. Canal & Navigation Co. v. Pilsbury, 30 La. Ann. 705), the court held that mandamus would lie to compel the payment of a judgment out of a special fund collected for the payment of registered judgments. In the same case the court referred to Strauss v. Brown, supra, as essentially different.

In State ex rel. Fernandez v. Judge, 34 La. Ann. 875, a judgment creditor applied for a mandamus to compel the auditing officer of the city of New Orleans to issue a warrant for the payment of his claim. The relief prayed for was denied on the ground that Act No. 5, p. 10, of 1870, Extra Session, expressly prohibited such a remedy; citing Strauss v. Brown, supra. In State ex rel. Klein & Co. v. City, 35 La. Ann. 781, an application for a mandamus by a judgment creditor to compel the auditing officer of the city to warrant on the administrator of finance for the amount of the judgment was denied. In that case it was alleged that funds had been appropriated and collected for the payment of the judgment. It does not appear that the judgment had been registered and that relief was sought under the provisions of the statute. In Shotwell v. City of New Orleans, 36 La. Ann. 938, the court held that an ordinary creditor had the right to enjoin the diversion of funds that had been specially appropriated in the budget for the payment of his claims. In that case, as in this, the attempted diversion was by means of an amended budget. The court, however, recognized the authority of Strauss v. Brown, supra, in mandamus proceedings.

The case of State .ex rel. De Leon v. City, 34 La. Ann. 477, involved bonds issued under Act No. 49, p. 45, of 1869. The case of Badger v. City of New Orleans, 49 La. Ann. 804, 21 South. 870, 37 L. R. A. 540, was a proceeding by mandamus and injunction against the city council alone. State ex rel. Foy v. Mayor and Council, 49 La. Ann. 946, 22 South. 370, was an abortive attempt to mandamus the council to provide in the budget for the payment of a judgment.

We agree with counsel for relator that the law forbids the diversion of the funds budgeted to pay his claim by means of an amendment of the budget or otherwise. But we are constrained under the terms of the statute and under the principle of stare decisis to hold that relator has no remedy by- mandamus directed against the comptroller and the treasurer of the city.

We have nothing to do with the policy of the law, which seems to leave the prompt payment of acknowledged claims due by the city and provided for in the budget to the discretion of the municipal authorities.

It is therefore ordered that the judgment appealed from be reversed, and it is now ordered that relator’s suit be dismissed, with costs in both courts, without prejudice to any other legal remedy he may have in the premises.  