
    No. 8232.
    The State of Louisiana ex rel. Henry Samory vs. The City of New Orleans.
    This is, to all intents and purposes, a suit against the City of New Orleans, which is hy law dispensed from giving hond in judicial proceedings.
    APPEAL fr'om the Civil District Court for the Parish of Orleans. Monroe, J.
    
      D. G. t& L. L. Labatt, for the Appellee:
    1. Tlie City of New Orleans, as an ideal being, is in no sense a party respondent to the order to show cause, and even if it were, the command of the court to the Administrators and Mayor individually to perform certain ministerial duties, cannot he suspensively impeded or suspended hy their appeal, without complying with the law as to other litigants, on giving hond and surety.
    
      2. That the exemption from giving bond and surety accorded to the City of New Orleans, has never been construed to exempt its officers, when they were personally parties, and judgment making mandamus peremptory was rendered against them; such exemption being in derogation of genoral laws, it is strictly oonstrued, and the respondents in this proceeding are not within the terms or reason of the exemption. See 21st A. p. IT?; and 29th A. It. pp. 53 and 54.
    3. The City of Now Orloans has no interest to appeal from the peremptory older to its officers, whose conduot is supposed to be inimioal to her desires and contrary to the will of the Legislature, as plainly expressed in the statute creatingthe bonded obligation held by relator. The corporation, separately consideied, is presumed incapable of committing a breach of contract, except through the intervention of her offioers, and as in the oase of theKing in England, the errors and misoonduot of her agents, bywhom she has been deceived and induced to do a temporary injustice, may bo averted by mandamus. 3d Blackstone, p. 255.
    4. When persons are clothed with official power they assume the duties, of a publio officer, and have sworn to perform those duties, and if they negleot or refuse to do so, any peraon whose rights aro injuriously affected is entitled to demand relief; and when peremptory adjudged delinquent, it is an individual judgment only'to be suspended as in other oases. Moses on Mand., pp. 13-16.
    5'. Whether the corporation he, or not, a party, the exemption does not extend to its officers in a mandamus. If the legislature had so intended, it would have said so.
    
      O. F. Bucle, City Attorney, and Wynne Boyers, for the Appellant.
   On Motion to Dismiss.

The opinion of the Court ivas delivered by

Levy, J.

Appellee moves to dismiss this appeal on the ground that defendants, appellants, have failed to give bond and security as required by law, holding, 1st: “That the exemption of the City from giving bond in judicial proceedings does not apply to proceedings against its officers when sued in their official capacity, to perform a ministerial duty imposed by law.” 2d: “ That such provision of law is in derogation of the general law, and cannot be extended beyond its terms.” 3d: That the City is an ideal being in law, and only nominally and technically named in the writ, and is not a real party, etc, 4th: That the officers named are not exempted from giving bond, etc., as they, individually, as ministerial officers, and not the city per se, are amenable to the writ.

In plaintiff’s (appellee’s) petition in this case, the character of this action is distinctly defined, and the real defendant designated. In his prayer he uses this language : “ Delator prays for a writ of mandamus to the City of New Orleans, through its Mayor and Administrators,” (naming them). Independent of this the suit is to all intents and purposes against, the corporation of the City of New Orleans, the object being to bind and affect the City in her corporate capacity by the judgment sought to be obtained against her. The City is entitled to the appeal without giving bond.

Motion to dismiss is denied.

On the Merits.

Eenner, J.

The reasons assigned in our opinion just rendered, in the case No. 8233 of our docket, between the same parties, apply perfectly to all the issues presented in this case, and conduce to a similar decree.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from he reversed; that Relator’s demand he rejected; that' the alternative writ of mandamus issued herein he dissolved, and the peremptory writ denied at Relator’s costs in both courts.  