The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1877-12-14

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Improvements thereto belonging to revert to the
city OF New Orleans Ut the expiration of said
lease without cost or indemnity to the lessor"
Under this ordinance the lease was executed,
and the lessoFs went into possession. The rent
has been paid for the full period of ten years. Il
seems to me that this is as effectively withdraw
ing from public use property which is no longer
necessary as could be done by the decree Of shy
court at the suit OF riparian proprietor and that
| suoh withdrawal 30 made is sanctioned by the
Legislature and by the Supreme Court.
1t follows inevitably that the city. by with
drawing this property from the public use, have
Iohsnged its destination and it's capacity 10 be
| alienated. The servtude of the public was law
July terminated. Ii ceased TO be public thing,
and became, SO to speak. the private property Of
the city, Revised @. o., art. 45a.
| Nor does the argument avail that in the pro-
gress OF time this property may in future become
necessary. for according TO the present charter
| (acts OF 1870 they have the power of causing
the appropriation of all property needed for any
public use.
q. Thst no execution can issue upon judg
msnt against the city of New Orleans rendered
in the Circuit Court Of the United States sitting
| in this district.
The argument in behalf Of the city upon this
point is briefly this: The law of Congress IN com
| mon law cases in the United States courts has
adopted the law of the State with ference to
executions, and the law of the tate prohibits
any execution in suits where the city is judgment
| debtor. The law of Congress- found in section
DIG o. the Revised Statutes. is as follows:
THE party recovering q judgment in any COM
| mon law cause In any circuit district court
/ shall be entitled to similar remedies upon The
| same by execution or otherwise TO reach the
property of the judgment debtor, as are now pro-
ylded in like causes by the laws of the State in
which said court is held"
The act Of the State Legislature upon which
the exemption ia claimed 10 set No s., passed at
q special session Of the Legislature in 1870
page TO-
The title Of the aot is as follows: ''An act to
| limit and restrict the power Of courts to issue
| orders, writs OF mandamus and feri fsGias
against the city OF New Orleans and the officers
Section prohibits any court from having au-
hority or jurisdiction to allow, order, hear or en-
| tertaD any writ or order Of mandamus, or auy
| order OF proceeding against the controller, de-
putty controller any auditing officer Of the city
| Of New Orleans, the object Of which shall b.,
either directly or indirectly, to obtain compel
| said controller or deputy controller, or audting
officer, to deliver or issue any order warrant
etc. Or against the treasurer assistant treas
| urer, or any officer charged with the disburse-
ment OF the moneys, to enforce the payment of
| money claimed to be due from New Orleans, but
| that the proceeding must be against the city
officer thereof
Section abollshes the writ of execution. or
| heri fseias, to enforce the payment of any iudg-
| ment and provides: That the effect of the judg-
| ment shall be limited to fixing the amount of
the plaintiffs demand said Judgment shall be
registered in the office OF the controller of the
city, and that the controller to pay the same,
may draw bis warrant against any money that
there may be in the treasury designated and set
apart for the purpose of paying such judgment.
Section 3 provides That In case there Ia no
money to pay the judgment the Common Council
shall have power, If they deem it proper, to make
an appropriation.
IL this act were to be viewed BY this court az
State tribunal would be bound to view it, it
would be liable to objections which impress me
as serious.
In I, Erstf nil :..4
1t has been held by very high authority that any
change made in the remedy which takes away |
the substantial right Of party to gain by bis |
suit, that to which at the time Of the making of |
ton OF the contract itself.
The city of New Orleans. at the time this con- |
tract was made, had impressed upon it by ex-
press statute the capacity to be sued. The Ca |
pacity to be sued carries with it not only the |
right to bring the city into court and recover |
the Judgment, but the right to enforce that iudg-
msnt.
Lord Coke, in the Reports. part s, page 80. de- |
tines an execution upon Judgment to be the |
life OF the law" and again. at page 81, he says. |
(which (exeeutions) are the fruit and the life of
every law" And also in Coke on Littleton, page |
sistis."
Writs OF feri facias may be said TO be univer- |
sally the incident Of judgment for the recovery |
money, which court renders, after the herring |
OF the case. and without them the proceedings
creitor oivas credit ~ 10 o;t ahu "1 es!, su
It's having the capacity to be sued. it seems to me
oansctv tn ha snad s.rong IA favor o, tne
necessary tn tsEa coonrlan,;i t .h p.ocesangs
the ;ndgmat dah,or '''np"isoi1y 'he properly Oh
An analysis of the act OF the Legislature of
leans SHOWS that thara 70 Tue cry OF new or-
nnsion. tbera csn 10 M osu r;, W ~ .scve CON-
any Of The ofieers n the ctv. ~ n.;s ~ upon
ton against the city. The judgment creditor
The trsss,rn y" s1ra.as oasne, wnas ~ Iound IN
Common donncil nav OF Nv. WHICH me
Uum'n ovun:n may hereafter, II they deem
mept "pp1opl'"'o iof 'he payment Oh MS Judg'
r. sea,. +o ~. .h,. H.. a,:..
nac;tv n ha;nn s,,ad 'eo onieI pale OF Inc Ca
cernsd ia r th;s so III as me creoitoI 's CON
necessary sop a aAt - but ~ 10 not
in m n;r; ~ W. pass upoh ei,s quession, lot
Ay gp,n.o4 ono ~ aouce ACT Vi congress mas not