State ex rel. Forman v. City of New Orleans , 1 McGl. 47 ( 1881 )

Rogers, J.

On the loth of December, 1877, the relator obtained a judgment commanding tbe Mayor and Administrators of the City of New Orleans to cause to be removed the banks of earth, through the entire width of Murat street, at the intersection of Orleans street, on both sides of the Orleans Canal, to the level of the Metairie Ridge, and to construct a good and suitable bridge across said canal, at the intersection of Murat street, of the full width of Murat street, so as to restore to the use of said Murat street the free and unobstructed use of plaintiff and the public from Canal street to the City Park, at an expense not to exceed five hundred dollars, and that the same be done and completed within thirty days after signing this judgment; and in default thereof, that said street be opened and bridge constructed, as above decreed by the sheriff at the expense and cost of the City of New Orleans.

This judgment was not appealed from and is, therefore, final. The city authorities have failed to obey the decree, and the relator having sought to obtain an obedience by petitions and solicitations, instituted the present action to compel the civil sheriff to execute the judgment rendered in 1877, and retain for such purpose a sufficient sum out of any and all moneys that may come into his hands and belonging to the City of New Orleans, this order was granted by the lower court.

The judgment is erroneous, because the moneys of the City of New Orleans have been dedicated by law to certain purposes, and are received and disbursed in accordance with express law, and to place the administration of its affairs with the sheriff, however limited that administration, would be illegal. While we believe that the conduct of the city officials in this matter has been reprehensible, and the record offers no excuse, we cannot look with favor upon the character of the relief sought by relator. There are, under the city charter, certain administrators charged with particular public duties. In this matter the city answers, the Administrator of Improvements is charged with the superintendence and repair of streets. If it is his duty to execute the judgment, we have no doubt he is sufficiently amenable to tlie law. Further, the relator has obtained a final judgment, and the means of its execution are in his hands, inasmuch as the sheriff can no more refuse to abate the nuisance complained of in this case than he could refuse to obey any other judgment of a court, and the writ of mandamus can only be invoked in default of other adequate-remedy. O. P. 830.

Judgment reversed. Mandamus refused.

Rehearing refused.