ON REHEARING.
The record does not supply tlie evidence essential to sustain the preference granted by the judgment o rer other creditors on the revenues of the city for 1881, and the judgment is amended by annulling that portion of the judgment, without prejudice to the right of plaintiffs to assert such rank and preference on said revenues as they are entitled to under the law.
Fenner, J.Neither in granting this rehearing nor since have we felt any doubt as to the correctness of our original opinion upon any of the points therein determined. But we omitted to consider one point, which, although urged in oral argument, had not been referred to in the briefs of counsel, and thus escaped our attention.
The judgment appealed from correctly condemns the defendant to pay the amount claimed “ out of the revenues of the city of New Orleans of the year 1881,” but it contains these additional words, viz.: “As of date of May 1st, 1881, the date at which said amount should have been paid; that is to say, it shall be paid out of said revenues as if an ordinance of appropriation had been made for this purpose and promulgated on May 1st, 1881, and in preference to all ordinances of appropriation passed subsequent to that date.”
The city urges that the above quoted portion of the judgment is illegal and in violation of the terms of Act No. 38 of 1879.
Plaintiffs object that the city is without interest, and consequent right, to urge this point. We cannot agree with them. It is the right and duty of the city to conform to the law in the administration of her finances and to oppose any judicial demand requiring her to violate the law.
The act 38 of 1879 requires the city to make in December of each year detailed estimates of receipts and expenditures, and declares that *937the adoption of these estimates shall be considered as an appropriation of the amounts therein stated for the purposes therein set forth, and also prohibits the diversion of said appropriations from the purposes stated for any cause or reason whatsoever. It further provides for subordinate specific acts of appropriation and declares that such appropriations shall be paid in the order of the adoption of the ordinances making them.
Nice questions might arise as to whether the city could affect the rank of budget creditors whose claims were ripe for payment by wrongfully refusing or postponing the passage of specific ordinances of appropriation.
Possibly plaintiffs may have suffered wrong in this respect and may be entitled to some relief.
But certainly this record is barren of the essential evidence necessary to determine or measure their rights or relief.
The city denies that plaintiffs are budget creditors'. Plaintiffs assert that they are. The budget or detailed estimates of receipts and expenditures for the year are not in evidence or found in the record.
How should we determine their dispute otherwise than by mere guess work Í
Nor does the record furnish any evidence as to the nature of the various ordinances of appropriation over which the judgment assigns a preference in favor of plaintiffs.
To affirm this portion of the judgment would be striking in the daik without knowing whom we might injure.
These are matters affecting the execution of the judgment, and in striking therefrom the objected portion we shall do so without prejudice to plaintiffs’ right to assert and enforce such rank and preference on the revenues of 1881 as the law entitles him to.
It is therefore ordered that our former decree herein be annulled and set aside; and it is now ordered, adjudged and decreed that the judgment appealed from be amended by striking therefrom the words “ as of date May 1 st, 1881, the date at which said amount should have been paid; that is to say, it shall be paid out of said revenues as if an ordinance had been made for this purpose and promulgated on May 1st, 1881, and in preference to all ordinances of appropriation passed subsequent to that date.” This amendment, however, to be without prej - udice to the right of plaintiffs to assert such rank and preference over other creditors on the revenues of 1881 as they may be entitled to under the law. And, as thus amended, that said judgment be now affirmed, plaintiffs and appellees to pay costs of this appeal.