Lands held by a city for public purposes, or ground rents
arising therefrom and forming a part of its public revenues, are
not subject to seizure and sale on execution.
John Klein, having recovered a judgment for $89,000 against the
City of New Orleans in the Circuit Court of the United States for
the District of Louisiana, caused an execution to issue thereon.
The marshal thereupon seized certain real estate belonging to the
city, consisting of
"two squares of ground which had formerly constituted the
easterly bank of the Mississippi River, but which, by the gradual
accretion of said easterly bank, had ceased to constitute the bank
of the river, but which were now used by the public for wharf and
levee purposes, said squares forming a portion of the land known as
the 'Batture property,'"
together with certain annual ground rents therefrom arising and
belonging to the city.
Page 99 U. S. 150
On motion of the city, a rule on the plaintiff to show cause why
the seizure should not be dissolved and set aside was issued.
At the hearing, the court being of
"opinion the said squares were public property which the city
could not alienate without the permission of the General Assembly
of the State of Louisiana, and that the said ground rents formed a
portion of the public revenues of the said city,"
and were therefore not subject to Klein's execution, made the
rule to dissolve the seizure absolute and ordered the marshal to
release the property.
Klein thereupon brought the case here
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
We must take the facts of this case as they are stated in the
bill of exceptions, and cannot look into the evidence. The
questions to be settled are: 1. whether the lands levied on are
subject to seizure and sale under execution against the city; and
2. whether the ground rents are liable in the same way.
This depends on the facts. If the lands are held by the
corporation for public purposes, and the ground rents are part of
the public revenues, it is well settled that they cannot be levied
on or sold. Dillon, Mun.Corp., secs. 64, 446. Municipal
corporations are the local agencies of the government creating
them, and their powers are such as belong to sovereignty. Property
and revenue necessary for the exercise of these powers become part
of the machinery of government, and to permit a creditor to seize
and sell them to collect his debt would be to permit him in some
degree to destroy the government itself.
The bill of exceptions shows that the lands consisted of
"two squares of ground which had formerly constituted the
easterly bank of the Mississippi River, but which, by the gradual
accretion of said easterly bank, had ceased to constitute the bank
of the river, but which were now used by the public for wharf and
levee purposes, said squares forming a portion of the land known as
the 'Batture property.'"
From this it must be
Page 99 U. S. 151
inferred that they were held for the use of the public. In a
city where business is carried on by water, a public wharf is as
much a public necessity as a public street or highway. If the land
in this case had still continued to be the bank of the river, and
used and improved as a public landing, it certainly could not have
been subject to sale on execution against the city; but we think a
simple extension of its surface does not change its character. If
it continues to be used as it was before, it is still public wharf
of levee property. It matters not that charges may have been made
by the city for wharfage. That would be nothing more than a proper
governmental regulation. A street extending to navigable waters and
used for wharf purposes does not cease to be public property
because a charge is made for its use in that way. The test in such
cases is as to the necessity of the property for the due exercise
of the functions of the municipality. Upon the facts as stated by
the court below, we think the lands levied upon were not subject to
seizure and sale.
As to the ground rents, it was decided by the Supreme Court of
Louisiana, in
New Orleans & Carrollton Railroad Co. v.
Municipality No. 1, 7 La.Ann. 148, that
"In authorizing the mayor and city council (of New Orleans) to
sell property on perpetual ground rent, the legislature established
a legal destination of the rents, as a portion of the public
revenue of the city, to enable the municipal authority to exercise
its powers of police and government. These rents therefore cannot
be sold under execution against the municipality."
There is nothing in the bill of exceptions to show that the
rents levied upon in this case were in any respect different from
those under consideration in that. We must presume, therefore, that
they are the same.
Judgment affirmed.