New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-07-13

mileage and per diem of the members OF the
Assembly: that they have been registered
in the Office of the Treasurer, and are en-
titled to preference. He prays that the
plaintiffs demand for an injunction De re-
iected in so tar as it may conflict Win inter
venor'sright of priority -.
The plaintiff has filed his afhdayits to
show that the manner in which the moneys
are paid out of the general fund is unjust,
illegal and calculated to work him the in
iury which he hopes to repair by these pro-
ceedings. 1t is charged that number of
warrants have been for long time regis
tered under the provisions in the legisla
tive and general appropriation bills, which
give preference to legislative warrants
that, although so registered, they have not
been paid, and the fact is given as an ex-
cuse for not paying other warrants.
But even if these allegations be true,
the plaintiff has not applied for relief that
can be granted. His case does not differ
materially from the cases of Sam Smith
and others against the Board OF
Liquidators of the Floating Debt, recently
decided by me and affirmed by the Supreme
Court There is no money in the treasury
to pay his warrants; he is endeavoring to
compel the Treasurer to reserve money
that may come into his hands for the pay
ment of warrants that have no claim to phi
A warrant holder, by making demand for
payment, thereby gets no lien upon moneys
thereafter to be received.
The plaintiff has filed supplemental pc
tition, In which he demands the right to
equal advantages with the holders of the
favored legislative warrants.
A rule nisi has been ordered. think.
perhaps that the issues thus presented will
enable the court to grant relief to the sew
eral warrant holders appearing IN this case
and others now decided.
Let the injunction be refused.
In the case of Samuel Mcclellan vs.. New
Orleans Sugar Shed Company, the court
has delivered the following opinion:
By an ordinance of the Common Council
of New Orleans. adopted August Ia, 1869,
+. b. Fleitas was granted the exclusive
privilege, during the period of twenty-five
years, of erecting fire-proof buildings, for
the shelter of sugar and molasses, on the
levee, in the Second District of this city, be-
tween Customhouse and st. Louis streets.
The grantee was to erect the buildings at
his own expense, upon the public space
designated, and was to maintain them for
the term aforesaid, when the city is to elect
whether to purchase upon an appraisement
or to extend the privilege.
The ordinance allowed the grantee to
charge a sum not exceeding twenty-five
cents on every hogshead of sugar and fif-
teen cents ON every barrel OF mOlasses
sheltered under said sheds. No other charge
for shelter was to be made, unless the pack
ages should change hands while under
cover, when the grantee might charge tif-
teen cents for each hOgshead of sugar and
five cents for each barrel of molasses at the
time of transfer, unless the purchaser should
remove the sugar or molasses the same day.
The city was to receive ten per cent OF the
amount of charges realized for shelter on
each hogshead OF sugar and each barrel of
molasses placed under the sheds.
This ordinance was made the basis of
written contract, and in conformity with
other provisions of the ordinance, the city
bound itself with said grantee to maintain
him in possession of the said public spaces
and sheds thereon erected, to retain the
sugar landing in front of said spaces, and
to establish no other landing for sugar or
molasses, and bound itself to grant no
other privilege for the reception of sugar
or molasses. The city reserved the right,
in case the levee should become encum-
bered, to enforce the existing regulations
established for the police of the wharfs,
and to open any street, the sheds notwith-
standing.
The New Orleans Sugar Shed Company,
defendant, was incorporated under the gen
eral laws of the State, and became the
transferee of all the rights and privileges of
Fleitas. The plaintiff is a sugar dealer sets
forth the said grant, and AYERS that the
company, defendant, who has built the
sheds in conformity to its charter, is now
proceeding to charge and collect a higher
tariff than that fixed by the aforesaid ordi-
nance and contract. He prays for an in
junction to restrain the company from col
lecting such excessive charges, and to com
pei it to release to him certain sugars now
in said sheds, and held by the company as
security for the dues so illegally levied.
He asks one thousand dollars damages.
A rule nisi was ordered, and has been
tried. The defendant responds that he is
not case for an Injunction; that the PLAIN
tiff has no sugar stored in said sheds and
has no right of action; that the company
has not violated the terms of the contract
with the city, and that if plaintiff has any
cause of complaint he must proceed by an
ordinary suit.
l think that if the plaintiffs action is
well grounded that this is a case for I'M unc-
ton; at all events, upon final decree,
although perhaps a preliminary writ ought
not to issue. But consideration of the
ordinance and contract aforesaid, and of
the several affidavits filed, satisfies me that
the writ should be refused.
1t appears from the afidavits filed by the
brought-June THE plaintiff had no sugar
or molasses standing in his name in the
sugar sheds, and there had been none since
May L. But the plaintiff produces the aft
davit of Bernard, a sugar dealer, who swears
that on May Is he sold to plaintiff, for over
$4,000, fOrty-One hOgsheads of sugar; that
the sugar is still in the sheds, and that the
plaintiff is responsible for all charges
thereon.
Upon this showing, the plaintiff ought not
to have the relief he seeks, even if he was
otherwise entitled to it. While he asks that
the defendant be enjoined from collecting
more than he, plaintiff, thinks the law allows
he is shown to be withholding from the COM
pany what it is justly entitled to receive
upon his own Interpretation of the charter.
When sugar changes hands the company
has the right to collect fifteen cents per
hogshead The plaintiff bought May Is, but
did not report the purchase, or pay the
charges. He who seeks justice must bejust
But it does not seem to me that the addi-
tiOnal tariff imposed by the company and
complained of by plaintiff, is in violation of
the contract with the city of New Orleans
The sugar sheds are built upon the public
levee; they were built for the purpose of
providing better shelter for a particular
staple produce there landed. The city, in
granting the privilege, imposed the cOndi-
ton that it should be afforded for twenty-five
cents per hogshead. But the company fixes
a tariff for other services than shelter-for
labor in removing sugar and for assuming
the responsibilities of warehouse owners,
for giving warehouse receipts and becoming
responsible for the sugar or molasses.
The city reserves its police powers over
the spaces occupied by the sheds, and may
cause the sugar to be removed if the place
becomes INSTRUCTED, so that the public have
lost none of their rights to the use of the
quay. The plaintiff files several atfidavits to
show that the charges are exhorbitant. One