MR. JUSTICE BREWER, after stating the facts as above, delivered the opinion of the court.
The bill in equity in this case was based on the judgment at law. That judgment determined the direct liabilities between the parties. It absolved the defendant from any primary obligation of debtor to creditor. It left it chargeable only as trustee of a fund out of which plaintiff's claim was to be paid. It was like a judgment, which in fact against an estate is nominally entered against the administrator thereof, to be satisfied out of the property of the estate and not out of the individual property of the administrator. The propriety of this judgment has not been questioned. No proceeding for review or reversal has been instituted. It has been accepted by the complainant as a correct adjudication of the rights between the parties; and in passing, it may be observed that its adjudication of rights was unquestionably correct. The scope of the entire legislation, from its inception in 1858 to its close in 1872, was local improvements for the benefit of adjacent property, with payment only through special assessments; and did not contemplate a work of general benefit, whose expense was chargeable to the municipality at large. The legislation of 1858, 1859 and 1861, under which the work was commenced, ignored the municipality entirely. It subdivided an area, of which the city was a portion, into draining districts, and cast upon a board of commissioners for each draining district the responsibility of the work and the assessments. The scheme was one of special assessments, as distinguished from municipal tax for general benefits. The distinction between the two is obvious and well recognized. It is stated by Cooley
While the acts of 1871 and 1872 bring the municipal defendant into a scheme for subsequent duties, they do not bring it in as a primary debtor, for whose benefit the work is to be done, but simply as the agency by which the special assessments are to be collected; the trustee, as it were, of the special assessments for the benefit of the contractor. So that while the judgment at law measures the rights and obligations of the parties to this bill in equity, if we were at liberty to look beyond the judgment to the antecedent facts, we should be compelled to hold that the judgment rightfully determined those obligations; that the city never was chargeable with the burden of primary indebtedness, but stood to the plaintiff only as assessor and collector of the special assessments. Properly accepting this judgment at law as an adjudication of the measure of his rights against the city, the complainant charges the defendant with three violations of duty out of which he claims a recovery. He charges, in the first place, that the city did not collect these assessments when it ought to and could have done so. Secondly, he says that as owner of streets and public
Before considering these matters, it should be premised that to the extent that the city of New Orleans may be considered a trustee, it is a compulsory, and not a voluntary and contractual trustee. The legislation of February 24, 1871, by which, for the first time, it became connected with these local improvements and assessments, gave it no option as to price or party, but, prescribing and naming both, gave it simply discretion as to the places and extent of the work. It authorized and empowered the canal company to dig the works and fixed the price therefor. The obligations cast upon the city were purely statutory, and while they were, in respect to the party doing the work, and the collection of assessments, somewhat in the nature of a trust, they are more to be regarded as statutory obligations, a failure to discharge which puts less strain on the moral sense. Indeed, the statute connects rather the officers of the city than the city itself with the work. It is true the act provides that the title to the lands necessary for the works shall be procured and held for the benefit of the city of New Orleans; but it requires that such title shall be so procured and held by the board of administrators of the city. It also provides that the extent and nature of all improvements shall be designated by such board; and that such board shall be required to build and run all works and drainage machines necessary to lift the water from the drainage canals over into Lake Pontchartrain, and to do all other work necessary
We do not mean to be understood as affirming that no duty or liability was cast upon the city by this statute as such, or that the action of the city council thereafter and on April 27, 1871, was not within at least the implication of the statute. All we mean to say is, that neither the full power nor the general duty was cast upon the city, and that the designation of its board of administrators as the agency to carry on the work of drainage already undertaken by statutory direction by the local boards of separate districts placed upon the city only a limited responsibility for that which such board might do or omit to do.
The significance of these observations is clear. There is wide divergence in the authorities as to the circumstances under which the liability of a city to a contractor for local improvements arises in case of the non-payment of the special assessments. Into that field of inquiry we do not care to enter. See 1 Dillon on Municipal Corporations, 4th ed., sections 481 and following, and notes.
If that suggestion be pertinent where the dereliction is that of the city council, the legislative assembly of a city, the body charged primarily with the duty of making suitable provision for the discharge of all municipal obligations, how much more is it true when such general legislative assembly is without power and charged with no duty, and full responsibility rests with a separate administrative board? The contractor is specially interested in the full and prompt discharge of its duty by this administrative board. The remedy of mandamus is open to him to compel its action. On what principle of right and justice can he ignore this remedy and charge the municipality and burden all the taxpayers of the city?
Further than that, we are not limited to mere matters of inference. It appears affirmatively that the city provided an office and officers for the collection of these taxes; and, according to the testimony given by the assignee of the canal company, the officer in charge was diligent in his efforts to collect the tax. It appears, also, that the canal company had an agent to look after this matter of collection of taxes, who offered all reasonable inducements to secure their payment. Again, the assignee of the canal company, pursuing the remedy
When to all these is added the fact that large portions of these draining districts were swamp and overflowed lands; when one of the burdens of complaint here is, that the city, by failing to complete this work of drainage, had left the lands in such condition as to be of practically no value; it is obvious that if the duty of collection rested primarily and absolutely on the city, it would be difficult to hold it derelict of duty therein, and renders very pertinent the language of the learned Circuit Court which decided this case in the court below, (38 Fed. Rep. 779,): "As to failure to collect, when these assessments were handed over to the city to collect they had been assessed 13 years, and for that period had been in the hands of commissioners created expressly for the conduct of the drainage system, and with no other business. If such bureaus had failed to collect for such a period, the inference is strongly forced upon us that the assessments were substantially uncollectible, especially by a municipal corporation, herself crushed by debts. This is corroborated by the outcome of the mandamus proceedings taken by Van Norden, transferee of the company, and as warrant-holder, to compel the city to
The second contention is that the city was itself a debtor to this drainage fund for nearly $700,000; that it had misappropriated a portion of the fund which it did receive; that as trustee of these assessments it was its duty to collect from itself as debtor to such fund; and that having failed so to do it can be properly charged in this proceeding. Considerable discussion took place on the argument, and is also found in the briefs, as to whether streets and other public property can be subjected to a lien for a share of the cost of local improvements, or whether the city stands in such relation to these properties that it can be held liable as owner. It is unnecessary to enter into the merits of this discussion. It may be that streets and other public grounds cannot be sold for non-payment of assessments for local improvements or other taxes, and it may be that the city is not technically their owner, and yet, at the same time, it may be true that the city, as representing the public, may, under proper proceedings, be charged as debtor for the proportion of the cost of local improvements, which, by the rule established, would fall upon such public property.
Neither do we need to examine the various decisions of the Supreme Court of Louisiana, cited by counsel, or seek to determine what is the law of that State in respect to this matter. For the purposes of this case we assume that the various assessment proceedings, taken in connection with the decision of the Supreme Court approving the homologation of the tableaux, operated, if not to cast a specific lien upon the streets and other public grounds, at least to charge upon the city an obligation to the drainage fund for that share of the total cost of the drainage determined by the proportion of the superficial feet of streets and other public grounds to the entire area of
The remaining proposition is, that under the authority of the act of February 24, 1876, the city purchased from the canal company and its transferee all rights, franchises and privileges possessed, and all tools, machinery and apparatus
We have given this case long consideration. The multitude of facts presented, the large interests involved and the learned and cogent arguments of counsel have compelled such consideration. We appreciate fully the appeal made by the distinguished counsel for complainant in closing his argument with this quotation from the opinion of three of the justices of this court in Merriwether v. Garrett, 102 U.S. 472, 520: "It is certainly of the highest importance to the people of every State that it should make provision, not merely for the payment of its own indebtedness, but for the payment of the indebtedness of its different municipalities. Hesitation to do this is weakness; refusal to do it is dishonor. Infidelity to engagements causes loss of character to the individual; it entails reproach upon the State." And we trust that this court will never falter in its duty of brushing away all false pretences, and holding every municipality obedient to the spirit as well as the letter of all its contract obligations. At the same time it is equally the duty of this court, as of all others, to see to it that no burden is cast upon taxpayers, citizens of a municipality, which does not spring from that which is justly and equitably a debt of the municipality; and, when a contract for local improvements is entered into, the contractor must look to the special assessments, and to them alone, for his compensation, and if they fail, without dereliction or wrong on the part of the city, neither justice nor equity will tolerate that it be charged as debtor therefor.
The decree will be
MR. JUSTICE HARLAN, with whom concurred MR. CHIEF JUSTICE FULLER and MR. JUSTICE LAMAR, dissenting.
THE CHIEF JUSTICE, MR. JUSTICE LAMAR and myself are unable to assent to the opinion of the court in this cause, and
Did the city of New Orleans become debtor to the drainage fund for the assessments upon the streets, squares and other public areas? Counsel for the appellee contend that it did not; and in support of that position rely upon several propositions, the first of which only demands notice.
It is contended that as the city of New Orleans and the parish of Jefferson were not by the acts of 1858, 1859 and 1861 expressly declared liable, or given anything to do with the execution of the works in question — which works were of the kind usually constructed at the expense of the individuals benefited — the legislature did not intend that the city and parish should be numbered among the contributors, and that as a general rule such assessments are not construed to include public property.
The questions raised on this proposition involve the powers, capacities and liabilities of the city of New Orleans, a municipal corporation of the State of Louisiana, and consequently a part of its governmental machinery; a fact to be kept steadily in view when questions of the legislative power are being examined. And furthermore, the conclusions of the Supreme Court of Louisiana on those questions, even if they are different from the usual holdings (and we do not mean to imply that they are) should have great, if not controlling, weight with this court. It seems to us that this point has been settled by that tribunal. The case at bar does not present the first instance in the history of New Orleans of the experiment of drainage based on area taxation. In the year 1835 a company was incorporated for that purpose, in which the city was a stockholder. The company taxed every foot of land, including streets, etc. Litigation ensued. The point of liability was directly raised and distinctly decided. The Supreme Court
Indeed, what could be more just than that a local assessment, directly beneficial to all, should, in some form and to some extent, at least, be provided for by a general contribution? Why should the cost of it be defrayed by one species of property alone? And how obtain that contribution more simply than by an assessment on the public property, although such assessment may not be enforceable by a sale, and must be otherwise provided for?
The decision above quoted was made in the year 1856. Two years later the first of the statutes now under consideration, that of 1858, was passed. It is hardly conceivable that the legislature which passed that act were ignorant of the decision of 1856, or of the construction placed upon the statute of 1835. Or that, knowing it, they still intended to produce a different result in the act of 1858, not by adopting different but by reproducing almost the identical terms. The latter statute is substantially, indeed almost literally, a reproduction of the former; and that former statute had just been construed by the Supreme Court.
In the case of Marquez v. New Orleans, 13 La. Ann. 319, the court held that the city as the owner of the middle ground, or public promenade, running along the centre of Claiborne Street, was liable for one-half of the cost of improving that street, and in the case of cross streets, was liable for the whole cost, since as to these parts there were no abutting owners. The city was treated, and the case decided, exactly as if it were an individual proprietor.
So also in the cases of Correjolles v. Succession of Fanchor, 26 La. Ann. 362, and of Barber Paving Co. v. Gogreve, 41 La. Ann. 251, a question arose in respect to the ownership by the city of the public places, and the same conclusion was
We now advert to the claim of the appellant that the city is liable for the drainage fund, as delinquent trustee. That liability is asserted, on three distinct grounds: 1st, because the city unjustifiably failed to collect the assessments due the fund; 2d, because it failed, as subrogee of the original contractor, to continue the work of drainage, and thus secure, under the decisions of the Louisiana courts, the collectibility of the assessments; 3d, because she has paid out moneys belonging to the fund for purposes not permitted by the law. A short outline of some of the history of these matters will be proper.
The act of 1858 established the first, second and third drainage districts; organized a district board in each, with full control of the drainage in that district; gave the board the power to levy a uniform assessment per square foot on the land to be drained, not to exceed $350,000 in the aggregate, in each district; made the assessments first liens on the lands assessed; provided, in case of non-payment, that judgment therefor should be recoverable in any court of competent jurisdiction; that lands be sold for arrearages, costs and interest; and that the respective boards might purchase the same, and hold or dispose of them for the benefit of the districts.
The act of 1861 provided that copies of the assessments made as above should be filed in certain designated courts, and, after notice, approved and homologated, and that they should then constitute judgments against the property assessed and the owners thereof, on which executions might issue as on judgments rendered in the ordinary mode, and that ten per cent be added to pay counsel fees and costs.
Under these statutes the boards organized, made the assessments, caused some of them to be homologated, collected a portion of the money and did some of the work. Until 1869 they continued to exist and to be more or less active in discharging their duties. The system, however, did not prove satisfactory by reason of the absence of responsibility and of unity of action on the part of the several boards. The act of 1869, therefore, consolidated the districts, abolished the boards, and appointed a commissioner, who was to succeed to their property, collect the assessments and levy and collect others on such parts of the district as were not included in the tableaux turned over to him. The commissioner, however, was not to do the work. That was to be done by a company, which was to receive all the collections in return for certain work.
By the act of 1871 an entirely new scheme was devised. The Mississippi and Mexican Gulf Ship Canal Company was authorized to do the work needed; the city board of administrators was empowered to locate the canals and levees, and required to build and run the machines necessary to lift the water over from the canals into the lake; the city surveyor to furnish the company monthly estimates of the work done, on which warrants were to be issued by the city auditor; the city treasurer to pay those warrants from any funds in the treasury to the credit of the company; and, if there was not the money
Such were the circumstances under which the city became the administrator and trustee of this important interest and fund: and such were the duties imposed upon her by those capacities.
What, now, were the assets committed to her administration, and for which there must manifestly be some sort of an account? They were:
1. A balance uncollected of a levy made in the first district, by the original board ........ $500,714 42 2. Ditto in the second district ................... 289,907 40 3. Levy made by the city, under the act of 1871, in the third district ....................... 627,589 95 4. Ditto in the fourth district ................... 281,416 81 _____________ Total amount chargeable ................... $1,699,628 58 This sum includes the assessments against the city, on account of public places, admitted never to have been paid, unless by issuance of bonds (of which hereafter) ............................ 697,836 28 Leaving due on account of individual _____________ assessments ................................ $1,001,792 30
(1) By a claim that the assessments were greater than the value of the lands, and, therefore, that they could not be collected from the lands. To this proposition there are several answers: First, as well argued by counsel for the appellee, it cannot be generally true in fact, since the lands are those on which the great city of New Orleans is built, and the assessments ranged from $69 to $140 per acre; second, in those instances in which the assessment was greater than the value of the lands, if there were any such, then the statute made provision by which the lands themselves, on failure of the owners to pay, should be sold and bought in by the city for the fund, and the duty of the city was to do this — in fact, it was done by the original board of the 15th district in the case of the asylum property; third, the statutes also provided, as has been seen, that personal executions should be issued against the owners for arrearages, damages and costs, and there is no showing, in our opinion, of anything like reasonable diligence in the use of this valuable right — a right which the Supreme Court of the State, in 1874, recognized and adjudged.
(2) By a claim that the decision of the Supreme Court in the Succession of Irwin, 33 La. Ann. 63, held that certain personal judgments obtained by the summary processes given by the act of 1871 were void, and nullified the homologation of the tableaux for the entire fourth district. This decision was not rendered until the year 1881, the city then having had charge of this matter for ten years. The decision cannot, of course, be successfully offered as an apology for the antecedent supineness of so long a period. Prior to that, the Louisiana courts had been enforcing the statute of 1871, as we have already shown. And, further, in regard to the Irwin case, if it was of such grave import as to effectually prevent the collection of these moneys, then it was probably violative of contract rights, and on proper proceedings could have been avoided. If it was not of such import, then it is no answer to the obligation of the city to make the collections aforesaid. In fact, the testimony in this case would indicate that the city was deliberately obstructing, not forwarding, the collection of these funds.
In December, 1873, after having failed to collect the taxes to pay the warrants when due, the city adopted an ordinance allowing the taxes to be paid in warrants, thus compelling the contractor to sell at a discount or get no money at all. After collecting only $88,000 in three and a half years, with warrants falling due at the rate of $25,000 a month, and making no effort to collect except to keep an office, and never having issued an execution up to January, 1875, the city then denied the right of the warrant holders to have execution, and resisted the mandamus that resulted in the judgment of the Supreme Court sustaining such right. The city did not make any effort, worthy of mention, to collect the tax from the owners independent of the land. After the purchase of the plant from the contractor in 1876, under the statute passed to that end, and the subrogation of the city to all the right of such contractor,
Such are substantially the charges made by the appellant to show that the city, after seeking and accepting the trust, was opposing its execution, instead of enforcing it.
(3) By a claim that the decision of the Supreme Court in the case of Davidson v. New Orleans, 32 La. Ann. 245, to the effect that a judgment for a drainage tax will not be enforced where it is shown that the property received no benefit from the drainage, was a great hindrance, as its effect was to release from their liability for the assessment more than half of the first and third drainage districts and almost the whole of the second. The ground of the decision was the abandonment by the city of the work it was charged to do. It is manifest that the city cannot relieve itself of the obligation to collect the assessments avoided by its own default. To meet this proposition the appellee contends that the cost of completion would have been so great that the assessments would have been more than exhausted in completing the work, and the outstanding debt would have remained still unpaid. There were and are uncollected $1,423,235.31, including about $700,000 of the city's own assessment which should, under the circumstances,
But the appellee also claims that when completed there would still have been lands in the district unbenefited, on which the total assessments would have amounted to $500,000, and that these assessments, according to the Davidson case, would not have been collectible. If all that were correct, and if the city had no other resources for finishing of work than these assessments, still a margin of about $225,000 would have been left for the benefit of warrant holders. On the other hand, however, we cannot yield assent to the Davidson decision. We cannot and do not accept the proposition that where the legislature passes on the necessity of a great public work like this, and organizes a district for its prosecution, the assessments made are void unless the property assessed is directly and evidently benefited. What question of that kind may exist, is a question of the district, not of the individual properties. The Davidson decision would wreck every work of a like character we ever knew. The entire levee systems of the Mississippi River would be swept away at once, for the taxes would be void as to all lands above overflow from the river unleveed, and as to all those which lie so low as to remain wet and untillable in the absence of a supplemental system of drainage, even after the completion of the levees. Admit the principle that these general assessments or taxes are to be brought to the test of particular benefits, and the most unexpected and disastrous consequences would follow. Moreover, our criticism on the Irwin case, as to its violation of contract rights already fixed, applies to the Davidson case, if possible, with even greater force.
(4) By a claim that the constitutional amendment of 1874, which took effect on the 21st of January, 1875, in terms declared "that the city of New Orleans shall not hereafter increase her debt in any manner or form, or under any pretext." An answer to this claim we do not think necessary
During all this there was evidently felt the pressure of the actual fact that the assessments were not collected with sufficient regularity and promptness to meet the urgent demands
Then followed act No. 73 of 1872. This is the statute under which the bonds in fact issued, and an analysis of which is indispensable here. Its objects, as expressed in its title, were, "To authorize the council of the city of New Orleans to levy a police tax; to regulate the levies of taxes, the proceedings of tax suits, and the jurisdiction of the District Courts for the parish of Orleans in reference thereto; to define and punish forgery in certain cases; to authorize the funding of the floating debt; to consolidate, limit and provide for the debt of the city of New Orleans, principal and interest; to authorize a tax for the support of the city government, and to establish a fiscal agency, defining its duties, and for the better enforcement of the collection of all taxes."
Section 13 of the act runs thus:
"SEC. 13. Be it further enacted, etc., That for unbonded debts existing December 31, 1871, and unpaid at the time of the passage of this act, or caused by receipts of certificates of 1871, for revenues proper of 1872, and for excavations and levees, drainage machinery and revetments authorized by law or required for the protection of the city from overflow and inundation the city may issue from time to time, as they may be required, bonds of the denominations of five hundred and one thousand dollars, having fifty years to run, and bearing seven per cent interest, principal and interest payable in gold in New York or New Orleans, and at any other points that the council may designate, with quarterly coupons, and that
Proceeding under this statute, the city issued about $1,600,000 of the drainage bonds, taking up therewith warrants issued for work done. It is claimed that in issuing those bonds the city thereby paid off both its own assessed dues to the drainage fund, as well as discharged any liability it may have been under on account of its non-feasance or mis-feasance as statutory trustee of the fund. We cannot accept that view.
It seems to us clear that it was not the intention of the legislature that such should be the effect of the issue of those bonds. That intention must of course control, as it is a question of the power of the municipality to issue negotiable bonds. The section authorized a series of bonds to be issued, and directed "that the bonds thus issued shall be called the new consolidated debt of New Orleans." They were to constitute one debt, the consolidated debt, not a variety of debts, nor even two distinct debts; and the statute manifestly proceeded on the idea that this one consolidated debt is to be paid, as all city debts are paid, out of the property of the city, and that without any express declaration to that effect. United States v. New Orleans, 98 U.S. 381. The purposes for which the bonds were to be issued were: (1) for unbonded debts existing December 31, 1871, and unpaid at the time of the passage of the act, or caused by receipts of certificates of 1871; (2) "for revenues proper of 1872;" (3) "and for excavations and levees, drainage machinery and revetments authorized by law, or required for the protection of the city from
Now, certain of those bonds were to be marked "Drainage Bonds." What bonds, and why? The statute in words answers: "All issued for the excavations and levees authorized by act No. 30 of 1871, or by drainage laws previously enacted." No bonds could be lawfully so marked, except such as were issued "for excavations and levees;" not for drainage machinery or revetments; not even for excavations and levees to be thereafter made, unless they were such as the statutes named authorized; not for excavations and levees previously made, since they were already settled for by warrants, whatever such warrants might be worth; still less for the debts or liabilities of the city, however they may have been incurred. The city could not properly thus mark any bonds issued for any purposes except those expressly limited in the statute — those issued in payment for excavations and levees authorized to be made by the act of 1871, and the preceding acts. And why? For a reason entirely in harmony with the whole tendency of the entire series of statutes, and with the requirements of good faith to the contractors working under those statutes; for the purpose of expediting the work, and of giving increased value to those particular bonds.
The appellee contends that these bonds have only the force of warrants, and could only be paid out of the proceeds of the assessments already made, notwithstanding they had fifty years to run before payment could be demanded at all. Not so; they were privileged bonds in the series. And, beside the general liability of the city, the statute provided that all the proceeds of assessments not needed to pay off warrants, if any, coming in, (and in doing which the issue of that class was, pro tanto, prevented and rendered unnecessary,) should be an additional special fund with which the city should purchase said bonds before maturity at a price agreed on not exceeding par, thereby giving the bondholders, or some of them, if there were any such excess of receipts, an option to get their money before maturity. Whether a sound one or not, such was clearly the scheme, and it presupposed the continued existence
Moreover, in issuing these bonds the city had no intention to pay its assessments thereby; nor were they received with any such intention or understanding by the receiver of them. This is amply shown by the following facts:
(1) It was the regular custom to mark on the assessment rolls all the payments made. No such entry was made in this case.
(2) The issue of bonds, after they were authorized, was always and largely in excess of the homologated judgments against the city on its assessments.
(3) Judgments were being constantly rendered against the city on her assessments, after she had issued bonds far ahead of even her claimed liability, yet she never presented any claim for payment.
(4) The city administrator of public accounts in his report to the city council, July 1, 1872, said that the city had already issued certificates for $485,081 of the new consolidated bonds, drainage series; and he states the amount due by the city for the streets to be $763,378.69, the total amount originally assessed against the city. On the theory of payment it would have been only $258,297.69. To constitute payment, money or some other valuable thing must be delivered by the debtor to the creditor for the purpose of extinguishing the debt, and the creditor must receive it for the same purpose. Dodge v. Freedman's Sav. & Trust Co., 93 U.S. 379, 386; Ketchum v. Duncan, 96 U.S. 659; Carter v. Burr, 113 U.S. 737;
The remaining point to be noticed is that of the equitable set-off. The argument of the appellee on this line is as follows: The act of 1872 was only an enabling act to terminate the power of the municipality to issue bonds of the same tenor as the warrants which were taken up; that is to say, payable out of the drainage fund if that should suffice. The case, as here regarded then, is clearly that of a trustee, who has, by error, issued securities for the advantage of the cestui que trust. Having so issued the securities, it must result, inevitably, that the city is to be credited with the amount to the extent of which she has relieved the fund.
It is obvious that the entire force of this argument rests on the proposition that the drainage bonds were to be issued, payable only out of the drainage fund, and did not import, as contemplated by the statute, any direct liability on the city; also, that there was no error in the act of issuing the bonds. We have already, in the preceding passage, analyzed the statute, and shown that, according to our view, a direct liability on the city was exactly what was intended, the provision as to the drainage fund in connection with those bonds being merely a cumulative provision for them. That view, of course, disposes of this argument, since it denies the major premise.
Outside of the statute we will mention one or two facts confirmatory of the view that it was not the intention to have the drainage bonds paid from the assessments. First, assessments in 1872 were less by or about $200,000 than the known sum needed to complete the system devised by the act of
We are, therefore, of the opinion that the court below erred in dismissing the bill. We think an account should have been stated on the basis indicated herein in its general outlines. The city was trustee by statute, and can be called to account by any person in interest. Exactly how the decree, when rendered, and the ascertainment of liability thereby made should have been enforced, it is hardly worth while to discuss in a dissenting opinion. The usual remedy is by mandamus where a public body cannot be subjected to ordinary process. That is a matter of detail only. The fact that the public property could not be sold on execution is no reason for absolving the city altogether from liability. The city should at least have paid what it itself owed on the assessments in question.
Upon these grounds we feel constrained to withhold our assent from the opinion and judgment of the court.
MR. JUSTICE BROWN did not hear argument in this case, and takes no part in its decision.