City of New Orleans v. Heirs of Guillotte

Buchanan, J.

In this case, it has been decreed by this court, in conformity to the demand of the plaintiff’s petition, that a partition should he made of the Magazine street market, held in partnership by plaintiff and defendants; and, as the impossibility of making the partition in kind was proved, it was ordered that the partition should be made by licitation. See Opinion Book 27, p. 12.

As the year for which the market was farmed was approaching its termination, when this judgment was rendered, the city council, by resolution, ordered that this particular market should not ho farmed for the coming year, to the highest bidder, as the other markets, hut that the commissary of the market should collect the market dues to the day of sale, rendering an account and paying over to the City Treasurer, day by day, the dues thus received. The defendants remonstrated against this change in the mode of administering the revenues of the market, as injurious to their interest; and notified the council that a person named by them, and who would give unquestionable security, was prepared to give at the rate of fifteen thousand dollars a year, or twelve hundred and fifty dollars a month, for the privilege of collecting the revenues of the market in question, until the sale of the market be effected under the judgment of partition. This proposition was rejected by the council, and a rule was taken in the suit by defendants, to compel the plaintiff to submit to this provisional arrangement, as being for the interest of both parties concerned. The rule was, upon hearing of the argument and evidence, made absolute, and plaintiff has appealed.

The price offered for the farm of the revenues of the market, is proved to be eleven per cent, greater than that which was received last year, and no evidence has been offered by plaintiff impugning either the sufficiency of the rent, or of the security offered for its payment. The solvency of the sureties offered has been proved, on the part of defendants, by the evidence of those sureties themselves. This is not contradicted, the plaintiffs resting altogether upon their claim of an exclusive right of the city government to regulate the administration of the revenues of the public markets of the city.

A more mature consideration of this interesting question, upon a re-hearing granted, has satisfied us that circumstances of this case make it an exception to the rule governing the administration of the markets of Now Orleans in general.

The city has voluntarily accepted a partnership with individuals, in the profits to be derived from a market-house. Having done so, it cannot claim to be on a different footing, as regards its social rights, at least in what regards the financial administration of the partnership property, from another .partner. In vain does the city appeal to its peculiar quality of a corporation clothed by the Constitution and laws of the State, with many of the most important functions of government. Its partners, the defendants, had a right to bo consulted in a matter which concerned the social interest. If, indeed, the defendants had asked to disturb and innovate upon the practice established by law and usage in the administration of the market, the case would have been very different. But it is, on the contrary, the city which, to the injury of the de ondants, as the evidence seems to demonstrate," commits an invotion of that kmd.

The judgment heretofore rendered by us on this appeal, is, therefore, set aside and annulled; and it is adjudged and decreed, that the judgment of the district court be affirmed with costs.

Mr. Justice Cole took no part in this decision.