It seems to me that, in the prevailing opinion rendered in this case, too much importance is given to the expression in the statutes, referring to waterworks plants and other such public improvements, "title to which shall be in the public." That does not mean that the title shall be in the inhabitants of the municipal corporation, except in the sense that the title is in the municipal corporation itself. The property belonging in common to the inhabitants of municipal corporations is divided into two classes, according to article 458 of the Civil Code, viz.:
"Things which belong in common to the inhabitants of cities and other places, are of two kinds:
"Common property, to the use of which all the inhabitants of a city or other place, and even strangers, are entitled in common; such as the streets, the public walks, the quays.
"And common property which, though it belongs to the corporation, is not for the common use of all the inhabitants of the place, but may be employed for their advantage by the administrators of its revenues."
According to that distinction, a waterworks plant is of that class of common property which belongs to the municipal corporation, and may be employed for the advantage of the inhabitants, by the administrators of the revenues of the plant. The distinction was drawn very clearly in Anderson v. Thomas,166 La. 526, 117 So. 573.
It is not disputed that the two engines, the air compressor, the power pump and its equipment, on which the Fairbanks-Morse Company reserved a vendor's lien and chattel mortgage, are easily identified and may be removed easily from the premises and leave the waterworks plant in the same condition in *Page 57 which it was before this machinery was installed there. It must be conceded therefore — and in fact it is conceded — that the plaintiff's lien and mortgage might be legally foreclosed if the machinery which is subject to the lien and mortgage belonged to a private corporation or an individual.
According to section 1 of Act No. 248 of 1912, p. 550, as amended by Act No. 34 of 1914, the municipal authorities of cities and towns are authorized to establish, purchase, lease, control, construct, maintain and operate waterworks. According to section 2 of the act, as amended by Act No. 34 of 1914, p. 99, the municipal authorities are authorized to carry out the object mentioned in section 1 by issuing bonds, certificates and other forms of indebtedness to procure such public utilities. According to section 3 of the act, the municipal authorities may enter into any of the above-mentioned contracts, and issue therefor their above-recited obligations. And, according to section 6 of the act, the municipal authorities may issue mortgage notes bearing on said property to secure the unpaid part of the price, making the payments in equal installments of one, two, three, four and five years, bearing interest at six per cent. per annum, and the act of mortgage shall contain all of the usual security clauses.
If this statute does not, in terms, authorize the municipal authorities to buy waterworks machinery on credit and secure the payment by the recognition of a vendor's lien and by the granting of a chattel mortgage, it certainly does away with the policy of the law exempting such property from seizure and sale, and permits the seizure and sale, to satisfy a vendor's lien or chattel mortgage given to secure the price of such property.
It seems anomalous to me that a municipal corporation may buy machinery for its waterworks *Page 58 plant, on credit, and be not responsible for the solemn obligation of the municipal authorities to recognize the vendor's lien on the machinery bought. I submit that there can be no valid sale without the payment of the price, or obligation to pay the price.
The general proposition that municipal property which is dedicated to or used for a public purpose is not subject to seizure for a debt of the municipality is applicable only to the ordinary debts of the municipality, and not to a debt due for the price of such property. There is no reason of public policy why the Fairbanks-Morse Company, or any other machinery manufacturer, should furnish machinery for the waterworks plant of the town of Farmerville, free of cost. The inhabitants of the town would not be worse off if the plaintiff should retake this machinery than they would have been if the machinery had not been sold to the municipality. If the doctrine of the majority opinion in this case is to prevail, a municipal corporation will be unable to buy on credit replacements of machinery or equipment for its waterworks plant, no matter how urgent the need may be.
The distinction which I make between this case and that of the City of Monroe v. Ouachita Parish School Board (La.Sup.)135 So. 657,1 decided today, is that in that case we were dealing with a special statute exempting school property from seizure and sale, and were dealing with a debt which was not contracted by, but was imposed upon, the school board; that is, an assessment for street pavement.
BRUNOT, J., concurs in dissenting opinion of CHIEF JUSTICE.
1 172 La. 861. *Page 59