The judgment should have been rendered in favor of Samuel Leachman alone, as the written opinion of the trial judge adjudges that he is entitled to the recovery, but it seems from a clerical misprision the judg ment is entered in favor of the plaintiff, which might be construed to include Lizzie Leachman, but the appellant is in no way prejudiced by this fact, and this might have been corrected in the court below. only person whom the fact can prejudice was Samuel Leachman, and neither he nor his personal representative complains of it here. Gardner v. Alexander, 159 Ky. 713, 169 S. W. 466.

The

The judgment below being in accordance with the views set out in this opinion, it is therefore affirmed.

LOUISIANA SUPREME COURT.

BENJAMIN RICE FORMAN

V.

SEWERAGE AND WATER BOARD OF
NEW ORLEANS.

(135 La. 1031, 66 So. 351.)

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 Leachman receive any of the benefits of any of these checks, which she is alleged to have signed, in favor of Woodfull. Woodfull seems to have received $1,070 of the money upon the three checks alleged to have been signed by Lizzie Leachman, and in four or five days squandered it, and drew it from the bank together, and then fled the country. Lizzie Leachman admitted executing the $70 check, and proof conduces to show that Samuel Leachman assented to this, and the court below held that the bank was entitled to credit by it. Samuel Leachman did not except to that finding, and his personal representative is not complaining of it here. Lizzie Leachman denied that she signed the $200 check or the $800 check. No one saw her sign them, nor is any circumstance proven which conduces to prove that she did so. A number of persons alleged to have been experts in regard to handwriting testified that in their opinion the signature made to these checks is the handwriting of Lizzie Leachman. They arrived at this conclusion, not from being acquainted with her handwriting, or from having seen her write, but from a comparison of the signature to the $800 check and the $200 check with the signature to the $70 check and the contract authorizing Blandford & Company to sell the house and lot. The trial court, as one of its findings of fact found that she did sign the $800 check and $200 check. The fact that the $800 check bears the same date as the $1,211.55 draft, which it is alleged that Lizzie Leachman signed, although she denies same, is a strong circumstance in favor of the truth of her denial that she did not sign the $800 check. Woodfull appears to have been a great rascal, and he either forged the signature of Lizzie Leachman to the $800 and $200 checks, or else, by some fraudulent device, procured her signature to them; but, with our views of the law of this case, it is immaterial whether Lizzie Leachman executed the checks or not. The deposit being made to the joint account of Samuel Leachman and Lizzie Leachman, the bank was not authorized to pay out the funds upon the checks of Lizzie Leachman alone, and in doing so took whatever risk that might follow as to the ownership of the fund. It appearing, furthermore, that Samuel Leachman was the owner of the fund, and that Lizzie Leachman had no interest in it, Samuel Leachman is entitled to recover of appellant an amount equal to all of it, of which he did not receive the benefit. There is no doubt, however, if the bank had paid out the funds upon a check signed by both Samuel and

Municipal

corporation

payment of debt.

compelling

1. The legislature may compel a municipal corporation to pay a debt which is equitable in character, though not binding in law, but it has no power to compel such a corporation to pay a claim with respect to which it is under no obligation, moral or equitable; and the less so where the issue of obligation vel non has been finally decided between the parties by a court of last resort, and where the fund from which the Constitution under a particular control, and payment is claimed has been placed by the dedicated to particular uses which do not include the payment of the claim in question. Same costs of suit - benefit.

2. A municipal corporation incurs no obligation, legal, moral, or equitable, with respect to the costs and attorneys' fees in a suit instituted by the state to forfeit the charter of a private corporation and to withdraw a monopolistic franchise which it had

Headnotes by MONROE, Ch. J.

Note. Power of legislature to compel payment by municipal corporations of nonlegal demands.

tained in the note to State ex rel. Bulkeley The earlier cases on this question are conv. Williams, 48 L.R.A. 465, covering the general subject, "Power of the legislature to impose burdens upon municipalities and to

&

The facts are stated in the opinion.

Messrs. W. L. Hughes, Hall, Monroe, Lemann, M. D. Dimitry, and Joseph Lautenschlaeger, for appellants:

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 whom it was intended to benefit, even though, as a result of the suit, the municipal corporation obtained without expense a privilege (of establishing a water, sewerage, and drainage system) for which otherwise, in expropriating the franchise in question, it would have had to pay heavily.

A

(October 19, 1914.)

PPEAL by the executor and heirs of B. R. Forman, deceased, from a judgment of the Civil District Court for the Parish of Orleans, in defendant's favor in an action brought to recover compensation for services rendered by decedent in a suit incontrol their local administration and property."

The power to impose upon the sewerage and water board the duty of paying Mr. Forman for his services rests in the legislature, unless there is some particular constitutional inhibition preventing same.

New Orleans v. Clark (Jefferson City Gaslight Co. v. Clark) 95 U. S. 644, 24 L. ed. 521; People ex rel. Blanding v. Burr, 13 Cal. 343; Guilford v. Chenango County, 18 Barb. 615, 13 N. Y. 143; Cooley, Const. Lim. pp. 379, 380; Cooley, Taxn. 2d ed. pp. 685, 698; 1 Dill. Mun. Corp. 5th ed. § 123; bonds under an enabling act was in Jarecki Mfg. Co. v. Toledo, 53 Fed. 329, held not invalid as conferring upon the city burdens without consent or consideration, or as conferring new corporate powers.

The present note is strictly limited to cases treating of the power of the legislature to compel a municipal corporation to pay a debt or demand equitable in char- So, statutes validating contracts for servacter, but not binding in law, and also debts ice made by counties without authority were or demands with respect to which the mu- 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 legis see note to Hagerman v. Hagerman, L.R.A. lature, by virtue of its authority over the 1915A, 904, and notes there referred to. municipality 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.

The rule as stated by McQuillin on Municipal Corporations, vol. 1, § 237, is that the payment of a debt may be enforced when equitable in character, although it may not be binding in law, and is even unenforceable in law or equity.

And as said by Dillon on Municipal Corporations, 5th ed. vol. 1, § 123, the cases on this subject, when carefully examined, seem to the author to go no further, probably, than to assert the doctrine that it is competent for the legislature to compel municipal corporations to recognize or pay debts or claims which are not binding in strict law, and which, for technical reasons, could not be enforced in equity, but which nevertheless are just and equitable in their character and involve a moral obligation.

The following cases support the proposition that the legislature may compel municipalities to pay debts or claims not strictly binding in law, but just and equitable in their character and involving a moral obligation:

Thus, an act validating and providing for the enforcement of equitable and just claims for materials furnished to complete a natural gas plant after the exhaustion of

act was formative, not judicial. The want of power in a municipal corporation to enter into a contract is usually disclosed for the first time by an adverse decision in the courts, and if it should be held that such a decision precludes the legislature from curing the defect, retroactive legislation would be defeated in those cases in which it has heretofore been most frequently used, and in which it has its highest justification. Such is not the law."

It is decided in Merchants' Nat. Bank v. East Grand Forks, 94 Minn. 246, 102 N. W. 703, that the state can compel any of its political subdivisions to recognize and pay obligations which are not cognizable in any court of law, but which are based upon considerations so thoroughly equitable and moral as to deserve and receive favorable legislative consideration; that an act of the legislature may constitutionally require a city to pay a third person to whom a contractor assigned outstanding warrants signed by a mayor and indorsed by the city treasurer as payable in the future, which are based on estimates issued by a city engineer, upon whom the contract confers large, if not conclusive, powers of determination, and approved by the city council; the curative effect of such an act is here held ap

Although the court had declared invalid a claim against a town for the construction of a bridge, because of failure of a town officer to strictly pursue statutory proceeded in equity and justice in the largest sense ings, an act of the legislature empowering the contractor to bring suit against the town to recover a fair and reasonable compensation for work done and material furnished was, in Wrought Iron Bridge Co. v. Attica, 119 N. Y. 204, 23 N. E. 542, held constitutional. The court stated that the principle that claims supported by a moral obligation and founded in justice, where the power exists to create them, but the proper statutory proceedings are not strictly pursued, or for any reason are informal and effective, may be legalized by the legislature and enforced against the municipality through the judicial tribunal, is now well settled.

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. "Section 1.

That it is hereby made the legal duty of the sewerage and water board of New Orleans, created by act No. 6, of 1899, to pay to Benjamin Rice Forman a just compensation for his services rendered in the case of the State of Louisiana v. New Orleans Waterworks Company, in the civil district court, parish of Orleans, in the supreme court of Louisiana and in the Supreme Court of the United States, the amount to be fixed by consent, or, in case they cannot agree, then, by final judgment of court, with 5 per cent per annum interest, from 5 June, 1902, Wiffler v. Miller, 68 Misc. 445, 124 N. Y., Supp. 368, held to be within the constitutional power of that body, within the doctrine of the court of appeals in Re Borup, 182 N. Y. 222, 108 Am. St. Rep. 796, 74 N. E. 838. In that case the court held that it was competent for the legislature to pass an act requiring towns to pay to landowners damages for changes of highway grades previously made, although, when such a change was made, no such liability existed, or could under any law have been imposed or assumed. The court in that case said: "There is no provision of the Constitution that restricts the legislature from providing for the payment by a municipality of claims against it that are founded in equity and justice and which could have been authorized originally."

A statute which compelled a city to assess as part of the cost, work done under a contract which was fraudulent in its inception, was never complied with, and was finally abandoned, was upheld in Re Cullen, 53 Hun, 534, 6 N. Y. Supp. 625, affirmed with out opinion in 119 N. Y. 628. The court stated that the case of the town of Guilford v. Chenango County, 13 N. Y. 143, set out in note in 48 L.R.A. 474, has been followed and cited with approval in too many cases to be now questioned, and upholds the constitutional right of the legislature to pass such an act.

The legislature may legalize an equitable claim for work constituting a city purpose, invalid because not in conformity to charter regulations, although such claim has been judicially determined invalid. People ex rel. Dady v. Prendergast, 144 App. Div. 308, 128 N. Y. Supp. 1082, modified in 203 N. Y. 1, 96 N. E. 103, with respect to comptroller's consideration and certification of illegal claims. This court, speaking of the cases Conlin v. San Francisco, 99 Cal. 17, 21 L.R.A. 474, 37 Am. St. Rep. 17, 33 Pac. 753, and Conlin v. San Francisco, 114 Cal. 404, 33 L.R.A. 752, 46 Pac. 279, states that "each of these decisions relates to a statute which directed a board of supervisors to audit and allow at a defined sum a claim against the county for work done for the

"Section 2. The judgment that may be rendered in the favor of Benjamin Rice Forman, against the sewerage and water board under this act, may be enforced by mandamus against it, and, in the judgment fixing the amount, the court shall order the sewerage and water board to issue warrants or drafts on the board of liquidation of the city debt for the amount thereof, with interest and costs added, and it shall be the duty of said board of liquidation of city debt to pay such warrants or drafts.

"Section 3.

That the amount of such compensation agreed on, or the amount county, but which was invalid because of failure to observe the statutory regulations as to the letting of public contracts. The legislation in question was held unconstitutional by the supreme court of California as an attempt to make a gift or gratuity of public funds. In both of these cases the California court declined to recognize any distinction between a mere gratuity and the payment of a claim resting upon a moral obligation, but without enforceable legal basis. As before indicated, a broader rule of interpretation has been applied in this state, and one which commends itself to a common sense of justice."

The principle that the legislature may render valid a contract made by a municipal corporation, though ultra vires at the time it was made, if the contract is one which the legislature might originally have authorized, applies with peculiar force to the case of a contract relating to a work in which the public is interested and which is for the public benefit, after it has been executed. O'Brian v. Baltimore County, 51 Md. 15.

A statute is valid that requires a town. ship to pay a debt that is morally, but not legally, due from it to an individual, for work done upon a public street. Union Twp. v. Rader, 39 N. J. L. 509. In the above case the court said: "Antecedently, then, to the enactment of this second law, a duty existed in a portion of the inhabitants of this township to pay this claim; and it has been repeatedly decided by the courts of the highest authority that the legislature has the undoubted right to compel a corporation of this character to pay a debt which, although not legally enforceable, carries with it the force of a moral obligation. The contract out of which the debt in question issued was palpably ultra vires as it was made by a body having no legal existence; but it was nevertheless an object beneficial to the locality now sought to be burdened for its payment, and which object could, beyond all question, have been legislatively authorized."

It is within the power of the legislature 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 improvement bonds authorized by act No. 6, 1899, and subsequent acts, amendatory thereof."