« AnteriorContinuar »
upon his account for rent against Samuel | Lizzie Leachman, it would have fully disLeachman. Samuel Leachman thus received charged its obligation. the benefit of it. Neither did Lizzie Leach- The judgment should have been rendered man receive any of the benefits of any of in favor of Samuel Leachman alone, as the these checks, which she is alleged to have written opinion of the trial judge adjudges signed, in favor of Woodfull. Woodfull that he is entitled to the recovery, but it seems to have received $1,070 of the money seems from a clerical misprision the judgupon the three checks alleged to have been ment is entered in favor of the plaintiff, signed by Lizzie Leachman, and in four or which might be construed to include Lizzie five days squandered it, and drew it from Leachman, but the appellant is in no way the lank together, and then fled the country. prejudiced by this fact, and this might have Lizzie Leachman admitted executing the $70 been corrected in the court below. The check, and proof conduces to show that Sam- only person whom the fact can prejudice uel Leachman assented to this, and the was Samuel Leachman, and neither he nor court below held that the bank was entitled his personal representative complains of it to credit by it. Samuel Leachman did not here. Gardner v. Alexander, 159 Ky. 713, except to that finding, and his personal rep- 169 S. W. 466. resentative is not complaining of it here. The judgment below being in accordance Lizzie Leachman denied that she signed the with the views set out in this opinion, it is $200 check or the $800 check. No one saw therefore affirmed. her sign them, nor is any circumstance proven which conduces to prove that she
A number of persons alleged to have been experts in regard to handwriting testified that in their opinion the signature
LOUISIANA SUPREME COURT. made to these checks is the handwriting of Lizzie Leachman. They arrived at this con
BENJAMIN RICE FORMAN clusion, not from being acquainted with her handwriting, or from having seen her write, SEWERAGE AND WATER BOARD OF but from a comparison of the signature to
NEW ORLEANS. the $800 check and the $200 check with the signature to the $70 check and the contract
(135 La. 1031, 66 So. 351.) authorizing Blandford & Company to sell the house and lot. The trial court, as one | Municipal corporation compelling of its findings of fact found that she did
payment of debt. sign the $800 check and $200 check. The
1. The legislature may compel a municifact that the $800 check bears the same
pal corporation to pay a debt which is
equitable in character, though not binding date as the $1,211.55 draft, which it is in law, but it has no power to compel such alleged that Lizzie Leachman signed, al- a corporation to pay claim with respect though she denies same, is a strong circum- to which it is under no obligation, moral or stance in favor of the truth of her denial equitable; and the less so where the issue that she did not sign the $800 check. Wood of obligation vel non has been finally defull appears to have been a great rascal, and cided between the parties by a court of last he either forged the signature of Lizzie resort, and where the fund from which the Leachman to the $800 and $200 checks, or Constitution under a particular control, and
payment is claimed has been placed by the else, by some fraudulent device, procured dedicated to particular uses which do not inher signature to them; but, with our views clude the payment of the claim in question. of the law of this case, it is immaterial
Same - costs of suit - benefit. whether Lizzie Leachman executed the
2. A municipal corporation incurs no oblichecks or not. The deposit being made to gation, legal, moral, or equitable, with rethe joint account of Samuel Leachman and spect to the costs and attorneys' fees in a Lizzie Leachman, the bank was not author- 1 suit instituted by the state to forfeit the ized to pay out the funds upon the checks charter of a private corporation and to withof Lizzie Leachman alone, and in doing so
draw a monopolistic franchise which it had took whatever risk that might follow as to
Headnotes by MONROE, Ch. J. the ownership of the fund. It appearing, furthermore, that Samuel Leachman was the Note. Power of legislature to compel owner of the fund, and that Lizzie Leach- payment by municipal corporations of man had no interest in it, Samuel Leach- nonlegal demands. man is entitled to recover of appellant an amount equal to all of it, of which he did tained in the note to State ex rel. Bulkeley
The earlier cases on this question are connot receive the benefit. There is no doubt,
v. Williams, 48 L.R.A. 465, covering the however, if the bank had paid out the funds general subject, “Power of the legislature to upon a check signed by both Samuel and ' impose burdens upon municipalities and to
granted, and the holder of which it found | stituted by the State against the New Orviolating the terms of the grant and using leans Waterworks Company. Affirmed. the franchise for the oppression of those The facts are stated in the opinion. whom it was intended to benefit, even
Messrs. W. L. Hughes, Hall, Monroe, though, as a result of the suit, the munici- & Lemann, M. D. Dimitry, and Joseph pal corporation obtained without expense a privilege (of establishing a ate
Lautenschlaeger, for appellants:
sewerage, and drainage system) for which otherwise,
The power to impose upon the sewerage in expropriating the franchise in question, and water board the duty of paying Mr. it would have had to pay heavily.
Forman for his services rests in the legisla
ture, unless there is some particular con(October 19, 1914.)
stitutional inhibition preventing same.
New Orleans v. Clark (Jefferson City A
PPEAL by the executor and heirs of B. Gaslight Co. v. Clark) 95 U. S. 644, 24
R. Forman, deceased, from a judgment L. ed. 521; People ex rel. Blanding v. Burr, of the Civil District Court for the Parish 13 Cal. 343; Guilford v. Chenango County, of Orleans, in defendant's favor in an ac- 18 Barb. 615, 13 N. Y. 143; Cooley, Const. tion brought to recover compensation for Lim. pp. 379, 380; Cooley, Taxn. 2d ed. pp. services rendered by decedent in a suit in- ' 685, 698; 1 Dill. Mun. Corp. 5th ed. $ 123; control their local administration and prop-, bonds under an enabling act was in Jarecki erty.”
Mfg. Co. v. Toledo, 53 Fed. 329, held not inThe present note is strictly limited to valid as conferring upon the city burdens cases treating of the power of the legisla- without consent or consideration, or as conture to compel a municipal corporation to ferring new corporate powers. pay a debt or demand equitable in char- So, statutes validating contracts for serv. acter, but not binding in law, and also debts ice made by counties without authority were or demands with respect to which the mu-l in Erskine v. Steele County, 87 Fed. 630, nicipality is under no obligation, moral or affirmed in 39 C. C. A. 173, 98 Fed. 215, held equitable. It does not cover the question as not unconstitutional as an exercise of juto the constitutionality of statutes purport. dicial power, or as depriving the county of ing to cure defects or irregularities in mu- its property without due process of law, or nicipal contracts or proceedings. For cases as violating the provision forbidding donaon that question, see note in 48 L.R.A. 476. tions to individuals. The court said that
Generally, as to rights and remedies seizing upon the duty that, in good conwhere contracts, bonds, or other instru- science, rested upon the county to pay for ments of municipal corporation are invalid, the service which it had received, the legissee note to Hagerman v. Hagerman, L.R.A. lature, by virtue of its authority over the 1915A, 904, and notes there referred to. municipa lity as a public agency of the
state, ratified its act, and thereby changed Equitable or moral claims not binding in its moral duty into a legal obligation. Its law.
act was formative, not judicial. The want
of power in a municipal corporation to The rule as stated by McQuillin on Mu- enter into a contract is usually disclosed nicipal Corporations, vol. 1, § 237, is that for the first time by an adverse decision in the payment of a debt may be enforced the courts, and if it should be held that such when equitable in character, although it a decision precludes the legislature from may not be binding in law, and is even un curing the defect, retroactive legislation enforceable in law or equity.
would be defeated in those cases in which And as said by Dillon on Municipal Cor- it has heretofore been most frequently used, porations, 5th ed. vol. 1, $ 123, the cases on and in which it has its highest justification. this subject, when carefully examined, seem Such is not the law." to the author to go no further, probably, It is decided in Merchants' Nat. Bank v. than to assert the doctrine that it is compe- East Grand Forks, 94 Minn. 246, 102 N. W. tent for the legislature to compel municipal | 703, that the state can compel any of its corporations to recognize or pay debts or political subdivisions to recognize and pay claims which are not binding in strict law, obligations which are not cognizable in any and which, for technical reasons, could not court of law, but which are based upon be enforced in equity, but which neverthe considerations so thoroughly equitable and less are just and equitable in their char-moral as to deserve and receive favorable acter and involve a moral obligation, legislative consideration; that an act of the
The following cases support the proposi- legislature may constitutionally require a tion that the legislature may compel munici- city to pay a third person to whom a conpalities to pay debts or claims not strict. tractor assigned outstanding ly binding in law, but just and equitable in signed by a mayor and indorsed by the city their character and involving a moral obli- treasurer as payable in the future, which gation:
are based on estimates issued by a city Thus, an act validating and providing for engineer, upon whom the contract confers the enforcement of equitable and just claims large, if not conclusive, powers of determinafor materials furnished to complete a nat-. tion, and approved by the city council; the ural gas plant after the exhaustion of curative effect of such an act is here held ap
United States v. Realty Co. 163 U. S. 427- Monroe, Ch. J., delivered the opinion of 443, 41 L. ed. 215-220, 16 Sup. Ct. Rep. the court: 1120; Erskine v. Steele County, 87 Fed. This action was instituted by the late B. 630; 1 McQuillin, Mun. Corp. § 237, p. 536; R. Forman, shortly before his death, and Utter v. Franklin, 172 U. S. 424, 43 L. ed. is now prosecuted by the dative executor 501, 19 Sup. Ct. Rep. 183; Guthrie Nat. of his last will and his heirs of age, under Bank v. Guthrie, 173 U. S. 528, 43 L. ed. the authority of act No. 115 of 1912, which 796, 19 Sup. Ct. Rep. 513.
is entitled and reads as follows: There is no violation of the Constitution, “An Act to Provide for the Compensation of as such contract or agreement as Mr. For- Benjamin Rice Forman for his Services man had with the state through the attor- in the Case of the State of Louisiana v. ney general was not without, but precisely New Orleans Waterworks Company, and with, "express authority of law," and was to Make it the Duty of the Sewerage a legally authorized agreement.
and Water Board of New Orleans to State v. Russell, 26 La. Ann. 68; State Pay Such Compensation as May Be ex rel. Stewart v. Reid, 113 La. 890, 37 So. Agreed on or Fixed by Final Judgment 866.
of Court, with 5 Per Cent Interest from Mr. Walter L. Gleason for appellee. 5 June, 1902. The Judgment Fixing plicable to the right of recovery based on a firm supplied furniture to the city fire dedetailed examination of the legal effects of partment. One of the members of the firm the facts that the warrants exceeded the was at the time an alderman, and by force statutory limits of city indebtedness; that of statute prohibiting certain officers thereno money was in the city treasury to pay in named from being interested in any conthe warrants and no provision made for ob- tract with the city, the transaction with taining it; that no bond was given as re- such firm was made illegal, so that no required by statute, to pay claims for work covery could be had upon it. To remove and material, and of the legal effect of the this obstacle to the collection of the demand, claim that the contract was not performed, the legislature passed an enabling act auand that the work done was of no value, but thorizing the board of estimate and apporwas a positive injury, to the city.
tionment to examine the claim and to fix It is held in Vasser v. George, 47 Miss. and determine what sum was justly due and 713, competent for the legislature to tax owing, and right in equity and justice to the district, which is the real debtor, for be paid to the firm, and a statute of limidebts contracted for levees on the Mississippi tation was not to be regarded as a bar to river, and that it may determine in favor the demand. The act was upheld as a valid of the creditor's claim, upon grounds of exercise of legislative power. As said in equity and justice, without regard to its Guilford v. Chenango County, 13 N. Y. 149: validity in a court of law.
"The legislature is not confined in its apAlthough the court had declared invalia propriation of the public moneys a claim against a town for the construction to cases in which a legal demand exists. of a bridge, because of failure of a town
It can thus recognize claims foundofficer to strictly pursue statutory proceeded in equity and justice in the largest sense ings, an act of the legislature empowering of these terms, or in gratitude or charity.” the contractor to bring suit against the town The legislature may impose upon a city to recover a fair and reasonable compensa- the liability for the service of counsel emtion for work done and material furnished ployed by its chamberlain to obtain pos. was, in Wrought Iron Bridge Co. v. Attica, session of books, papers, and securities 119 N. Y. 204, 23 N. E. 542, held constitu- which his predecessor after removal refused tional. The court stated that the principle to hand over, the city being interested in that claims supported by a moral obliga- the result of the contest for the funds, and tion and founded in justice, where the power the expense of the litigation being indirectly exists to create them, but the proper statu- advantageous to the defendant, who had tory proceedings are not strictly pursued, or exercised the power of removal and appointfor any reason are informal and effective, ment. Stemmler v. New York, 179 N. Y. may be legalized by the legislature and en 473, 72 N. E. 581. forced against the municipality through Where a city incurred liability largely in the judicial tribunal, is now well settled. excess of appropriations and charter limita
While it was not proved in Re 80th Street, tions, it was held in Syracuse v. Hubbard, 31 How. Pr. 99, that a contract to grade 64 App. Div. 587, 72 N. Y. Supp. 802, appeal a street which was to go to the lowest bidder dismissed in 168 N. Y. 668, 61 N. E. 1128, was procured by a fraudulent conspiracy that the legislature had power to charge and collusion between the contractor and upon the city the payment of the claims street commissioner, the court stated that constituting the deficiency, so far as there even had such been the case, the legisla- was a legal or equitable basis for the same. ture could have legalized the assessment and An act of the legislature, in recognizing required the city to pay the money due on a claim technically illegal, but morally the contract.
meritorious, in that the city had the benefit In People ex rel. Kellmer v. New York, 3 of the materials charged for, namely, feed Misc. 131, 23 N. Y. Supp. 1060, à certain I used for its horses was in People ex rel.
the Amount May be Enforced by Man-, when the mandate from the Supreme Court damus and May Be Satisfied by the De- of the United States was filed in the sulivery of an Equal Amount of Public preme court of Louisiana. Improvement Bonds.
The judgment that “Section 1.
That it is hereby may be rendered in the favor of Benjamin made the legal duty of the sewerage and Rice Forman, against the sewerage and wawater board of New Orleans, created by ter board under this act, may be enforced act No. 6, of 1899, to pay to Benjamin Rice by mandamus against it, and, in the judgForman a just compensation for his serv- ment fixing the amount, the court shall ices rendered in the case of the State of order the sewerage and water board to issue Louisiana v. New Orleans Waterworks Com- warrants or drafts on the board of liquidapany, in the civil district court, parish of tion of the city debt for the amount thereOrleans, in the supreme court of Louisiana of, with interest and costs added, and it and in the Supreme Court of the United shall be the duty of said board of liquidaStates, the amount to be fixed by consent, tion of city debt to pay such warrants or or, in case they cannot agree, then, by drafts. final judgment of court, with 5 per cent "Section 3.
That the amount of per annum interest, from 5 June, 1902, such compensation agreed on, or the amount Wiffler v. Miller, 68 Misc. 445, 124 N. Y., county, but which was invalid because of Supp. 368, held to be within the constitu- failure to observe the statutory regulations tional power of that body, within the doc- as to the letting of public contracts. The trine of the court of appeals in Re Borup, legislation in question was held unconstitu182 N. Y. 222, 108 Am. St. Rep. 796, 74 tional by the supreme court of California as N. E. 838. In that case the court held that an attempt to make a gift or gratuity of it was competent for the legislature to pass public funds.
In both of these an act requiring towns to pay to landowners cases the California court declined to recogdamages for changes of highway grades nize any distinction between a mere gratuity previously made, although, when such a and the payment of a claim resting upon change was made, no such liability existed, a moral obligation, but without enforceable or could under any law have been imposed legal basis. As before indicated, a broader or assumed. The court in that case said: rule of interpretation has been applied in “There is no provision of the Constitution this state, and one which commends itself that restricts the legislature from provid. to a common sense of justice.” ing for the payment by a municipality of The principle that the legislature may claims against it that are founded in equity render valid a contract made by a municiand justice and which could have been au pal corporation, though ultra vires at the thorized originally."
time it was made, if the contract is one A statute which compelled a city to assess which the legislature might originally have as part of the cost, work done under a con authorized, applies with peculiar force to tract which was fraudulent in its inception, the case of a contract relating to a work was never complied with, and was finally in which the public is interested and which abandoned, was upheld in Re Cullen, 53 is for the public benefit, after it has been Hun, 534, 6 N. Y. Supp. 625, affirmed with executed. O'Brian v. Baltimore County, 51 out opinion in 119 N. Y. 628. The court Md. 15. stated that the case of the town of Guil. A statute is valid that requires a town. ford v. Chenango County, 13 N. Y. 143, set ship to pay a debt that is morally, but not out in note in 48 L.R.A. 474, has been fol- legally, due from it to an individual, for lowed and cited with approval in too many work done upon a public street. Union Twp. cases to be now questioned, and upholds the v. Rader, 39 N. J. L. 509. In the above case constitutional right of the legislature to the court said: “Antecedently, then, to the pass such an act.
enactment of this second law, a duty existThe legislature may legalize an equitable , ed in a portion of the inhabitants of this claim for work constituting a city purpose, township to pay this claim; and it has been invalid because not in conformity to char- repeatedly decided by the courts of the highter regulations, although such claim has est authority that the legislature has the been judicially determined invalid. People undoubted right to compel a corporation of ex rel. Dady v. Prendergast, 144 App. Div. this character to pay a debt which, although 308, 128 N. Y. Supp. 1082, modified in 203 not legally enforceable, carries with it the N. Y. 1, 96 N. E. 103, with respect to comp- force of a moral obligation.
The troller's consideration and certification of contract out of which the debt in question illegal claims. This court, speaking of the issued was palpably ultra vires as it was cases Conlin v. San Francisco, 99 Cal. 17, made by a body having no legal existence; 21 L.R.A. 474, 37 Am. St. Rep. 17, 33 Pac. but it was nevertheless an object beneficial 753, and Conlin v. San Francisco, 114 Cal. | to the locality now sought to be burdened 404, 33 L.R.A. 752, 46 Pac. 279, states that for its payment, and which object could, be"each of these decisions relates to a statute ond all question, have been legislatively which directed a board of supervisors to authorized.” audit and allow at a defined sum a claim It is within the power of the legislature against the county for work done for the I to dispense with formalities contained in of such judgment as may be rendered by, to enforce any cause of action that he may authority of this act, may be satisfied by have either in law or equity." the delivery of an equal amount of public And this court, in deciding the case, said: improvement bonds authorized by act No. “There can be no doubt that the services 6, 1899, and subsequent acts, amendatory of plaintiff were immensely valuable, and thereof."
inured enormously to the benefit of the deThe general assembly had previously fendant board and of the people of the city passed a somewhat similar act (No. 210 of New Orleans, and, incidentally, of the of 1906), and a somewhat similar suit was whole state. There can be no doubt, also, instituted and prosecuted to final judgment that the task which plaintiff undertook and in this court. Forman v. Sewerage & Water successfully accomplished was gigantic, in Bd. 119 La. 49, 43 So. 908, 909, 910, 12 Ann. respect both of the mountain of work to Cas. 773. But the act so passed con- be done and of the legal ability required cluded as follows: "Provided that nothing to do it, and there can be no doubt that in this act shall be construed to mean that plaintiff ought to be remunerated from a right or cause of action is created in some source; but it is equally plain that no favor of said Forman against said board. right of action has ever arisen in his favor The intention being to give him the right against the defendant board. Plaintiff was the charter, and give contractors their equi- favor of and against counties, limitation table right to compensation for services ren- will run in the absence of some statute to dered or materials furnished in good faith the contrary, does not affect the question. for the public benefit. State ex rel. Cleve- The legislature may compel a city to pay land v. Board of Finance & Taxn. 38 N. J. a claim in favor of the state for a percentL. 259.
age of the liquor license fees, although It is stated in Guthrie v. Territory, 1 barred by the statute of limitation. State Okla. 188, 21 L.R.A. 841, 31 Pac. 190, that v. Aberdeen, 34 Wash. 61, 74 Pac. 10:22. the legislature may compel a municipal The court states that it would be difficult corporation to pay a debt which has any coneeive a more well-grounded moral moral or meritorious basis to rest on. It or equitable obligation than that of the city is held in this case that a statute provid- to pay this money to the state; the state, ing for the payment by a village of debts of through its legislature, has the power to a provisional organization which it has suc- say to its subordinate municipalities that ceeded is not special legislation changing what is morally and equitably due to the or amending a charter, or granting special state shall become legally duc. privileges or immunities within the pro- So, it is held in State ex rel. McCullough hibition of 24 Stat. at L. 170, chap. 818, v. Seattle, 60 Wash. 241, 110 Pac. 1008, that Comp. Stat. 1913, § 3479, relating to terri- the excess of assessments over and above torial legislatures. The act, states the the legitimate costs and expense of local court, simply recognizes a moral obligation improvement, when collected by the city, on its part to pay certain debts created by rightfully, equitably, and morally belongs its predecessor, from which it receives some to the property owners in proportion to advantage or benefit, and for which it is their payments into the special fund, and not legally liable, and provides a speedy and that the legislature had authority to reinexpensive method of determining the quire repayments even though the statute amount, and authorizes the levy of taxes of limitations had fully run. for raising the revenues to meet and pay Both of the two cases last above menthe same (compensation due referees for tioned hold that the legislature may remove adjudging claims against a city).
the statutory bar without violating vested The power of the city to legalize a moral rights or the constitutional prohibition obligation is upheld in Lycoming County against the taking of property without due v. Union County, 15 Pa. 166, 53 Am. Dec. process of law. 575, where an act providing that due pro- Where towns illegally organized incurred portions of the expense incurred by one an indebtedness for street improvement, and county in all causes removed for trial there- were subsequently validly reincorporated, to, under a certain act, shall be reimbursed it was held in Abernethy v. Medical Lake, 9 to such county by the counties, in their pro- Wash. 112, 37 Pac. 306, and State ex rel. portion, from which said causes were re- Traders' Nat. Bank v. Winter, 15 Wash. moved for trial.
407, 46 Pac. 644, that the legislature could The legislature may compel a county to direct such reincorporated towns to assume pay just school claims, although barred by and pay the indebtedness. the statute of limitation. Caldwell County In holding it competent for the legislav. Harbert, 68 Tex. 321, 4 S. W. 607. In ture to create municipal corporations and the above case the court states that there provide that they should pay the just debts can be no constitutional objection to the and obligations supposed to have been duly power of the legislature to require a munici- incurred by the voluntary and unauthorized pal subdivision of the state, such as a coun- organization to whose property they have ty, to provide for and pay any just claim succeeded, the court in Winneconne v. Winagainst it after the lapse of such time as neconne, 111 Wis. 13, 86 N. W. 590, said would ordinarily bar the claim. That, in that the legislature has plenary power to