State ex rel. Houston v. Burke ( 1880 )

Manning, C. J.

The testimony of the Treasurer shews the truth of the allegation, that the sum mentioned was collected and received as part of the taxes of 1878, for the General Fund of that year. It is admitted that that sum is now in the treasury, and that it is intended to pay it to the holder of the State-house note. The logical and legal sequence of our decision in Harris v. Dubuclet, 30 La. Ann. 662, is that the instalment of the purchase price of the St. Louis Hotel, falling due in any year, can be paid alone out of the half-mill tax levied and collected for that year. The instalment maturing in 1878 has been paid. The instalment maturing in 1879 cannot be paid out of the revenues of any other year.

¥e cannot give the intervenors any relief. They are not seeking a moneyed judgment against the respondents, nor are the relators, but the relators have obtained an order commanding the restoration to the General Fund of the sum illegally diverted and a prohibition of any payment thereof in derogation of their rights. The interven ors do not pray nor obtain any writ whatever. Their only process is the ordinary citation. All that the relators ask is that the mandamus and injunction be granted so far as may be necessary to protect their rights, and the intervenors do not ask either at all. Their interventions must be dismissed without prejudice to the future assertion of their rights.

All the relators cannot be paid in full. Their claims amount to $30,037.50. The lower court decreed that all should be paid, doubtless because each case was tried separately. It is apparent that the treasurer cannot obey a mandate to pay all the relators and it is urged that Judge Houston should be paid in full, because his vigilance and celerity in first obtaining process for the restoration to the General Fund of the moneys improperly diverted from it, entitle him to preference over all others.

In Walton v. JBemiss, 16 La. 140, it was held that where attacking creditors commence their revocatory actions about the same time, and use proper diligence, one shall not have exclusive privilege on the property recovered, simply because his suit was first commenced but the property must be divided pro rata among them. Judge Houston’s suit was filed January 25, 1879, Judge Pardee’s two days afterwards— and Judges Monroe and Tissot’s, and the Citizens’ Savings Bank’s on the 30th of the same month, and process in all was served on or before the 31st. These proceedings are assimilated to the revocatory action, the object being to bring moneys back into a fund out of which the relators were entitled to be paid, and under the ruling in the case cited, the distribution must be pro rata among them.

One of the counsel suggested that we could not undertake to make such distribution, but only affirm the judgments of each relator. But in doing that, we should be issuing a peremptory mandamus to the Treasurer to do what the record shews us he cannot do, and it would therefore be a vain and useless order.

To avoid any misconstruction of the scope and meaning of this judgment, we feel impelled to announce in unmistakable language that we do not decide that any holder of a warrant can obtain a preference over other holders of similar warrants by taking out process against the Treasurer and Auditor to compel its payment. We rest our decision of this case exclusively on the ground that there was a fund, out of which the relators were entitled to he paid, that had been improperly diverted to another purpose, and their vigilance and prompt action alone accomplished the restoration of that fund to its proper uses, and therefore they had the first right to payment out of that particular fund.

Decreed accordingly.