State ex rel. Bauman v. Judge of Civil District Court

The opinion of the Court was delivered by

Todd, J.

On the Stli of June, 1885, Herman Newgass, a creditor of' tbo city of New Orleans, applied for and obtained a- peremptory mandamus against the city council and the members thereof to provide fertile payment of his claim.

Eight members of the council refused to obey the writ. The claim had been placed on the budget, and the finance committee bad reported an ordinance directing its payment, but the eight members above referred to, voted against the ordinance for its payment and by their vote defeated its passage, and at the same time signified their-disobedience of the order requiring provision to be made for its payment.

Thereupon under a rule taken, the members of the council, thus refusing obedience to the mandamus, were adjudged guilty of contempt by the judge who issued the writ, and were each sentenced to pay a fine of fifty dollars and to be imprisoned in the parish jail for ten days.

They complain of this action of the judge, and have applied to this •Court for writs of habeas corpus, certiorari and prohibition, under which they seek to have the sentence set aside and annulled.

It is almost needless to say that the writ of habeas corpus — being-only authorized in aid of the appellate jurisdiction of this Court — we cannot consider it, and must confine our attention to the other relief sought.

1. The relators first contend that the proceeding for contempt was wholly unauthorized in this case, and that the party aggrieved by the non-action of the relators in the premises, had his remedy under Art. -636 of the Code of Practice, providing- in certain cases for the enforcement of judgments by writs of distringas.

In our opinion, that article is wholly inapplicable to the matter in hand. It relates to judgments and decrees rendered in the ordinary •course of judicial proceedings, and not to peremptory'orders issued in summary proceedings requiring or prohibiting the performance of •some specific act,

The thing ordered to be done by the relators in this instance, was the performance of a purely ministerial duty imposed upon them by law, that is, to provide for the payment of a just claim against the city, •and already placed as such on the budget of city expenditures.

Under the, law and the peremptory terms of the mandate addressed to them by a judge clothed with full jurisdiction over the subject, they were vested with no discretion in the matter — their plain duty was to obey the law and the writ.

Courts would indeed be comparatively powerless, and the administration of the law and of justice utterly inefficient and worthless, if .judges possessed not the authority to enforce obedience to their legitimate orders by the process and means herein complained of.

2. The second contention of the relators is, that the process for con tempt should not have been levelled alone against the members refusing obedience to the mandamus, but directed against the city of New Orleans or all the members- of the council.

There is no force in this proposition. Dillon in his able work on Municipal Corporations, 2 vols, p. 876, in discussing the identical subject now before us says : “The writ, although directed to the corporation, is enforced through the members or officers whose duty it is to-obey its commands, and if part of the officers or members have done all within their power to comply with the writ, the court will punish only those who are actually guilty of disobedience; ” and this doctrine is placed beyond controversy by the decision of the Supreme Court of the United States in the case of Board Commissioners of Leavenworth vs. Sellew, 99 U. S. 623, 624. This decision is in accord with several others rendered by the State courts. 2 Metcalf, (Ky.) 156; 15 Wis. 37; 65 N. C. 114; 19 Wend. (N. Y.) 68; 13 Fla. 451.

It is, therefore, ordered, adjudged and decreed, that the restraining order heretofore rendered be set aside, and the application for the relief herein sought be dismissed at the costs of the relators.