State Ex Rel. Woodard v. Ozley

14 So. 2d 452, 203 La. 579, 1943 La. LEXIS 995

• Court: Supreme Court of Louisiana
• Decided: May 17, 1943
• Docket: No. 36955.
• Status: Published

Opinions

FOURNET, Justice.

The relators, M. E. Woodard, Lorris M. Wimberly, J. Rush Wimberly Sr., J. Rush Wimberly, Jr., R. L. Williams, and B. F. Durrett, the. alleged holders and owners in due course for value before maturity of certain designated and. enumerated certificates of indebtedness issued by the Police Jury of Bienville Parish in accordance with its ordinance adopted on May 2, 1938, instituted this mandamus proceeding to compel L. E. Ozley, its president, and W. King Murphy, its secretary-treasurer, to pay the interest due on these certificates, alleging that such interest had been paid as provided in the certificates from their issuance up to and including December 6, 1939, but not subsequent thereto, despite the fact the % of 1 mill of the 4-mill alimony levied and collected by the Police Jury for that purpose is on deposit with its fiscal agent in a separate-account, under the terms of the ordinance, for the payment of the interest oh these certificates and their retirement when due. In a supplemental petition, they also asked that the certificates that had matured after this proceeding was instituted be ordered paid.

The respondents denied the relators were holders of these certificates in due course, admitting all of the other allegations of the petition, such denial being predicated on the contention that these certificates were issued by the Police Jury and acquired by the relators in collusion with the secretary-treasurer of the Police Jury, which rendered all of the proceedings of the Police Jury null and void. The Police Jury of Bienville Parish intervened, adopting, in effect, the allegations of the respondents.

The relators then pleaded as an estoppel the acquiescence of the Police Jury and its officials in the validity of the certificates by the regular payment of all of the interest due thereon up to and-including December 6, 1939, seeking, also, by this motion, to have the allegations in the answer of the respondents and intervenor questioning the validity of these certificates stricken from the record. When this motion was overruled, the relators filed another plea wherein they alleged that since the certificates had been issued more than four years prior thereto, in pursuance with the provisions of Act No. 87 of 1928, as amended, the respondents were estopped from questioning the validity of the certificates under the express provisions of one of the amending acts (Act No. 347 of 1938) limiting the period for such contest to 30 days after the promulgation of the resolution issuing the certificates, which prescription was specially pleaded, the relators also re-urging their motion to strike from the answer and the intervention all of those allegations contesting the validity of the certificates. This motion was likewise overruled and the' relators then filed a third motion, pleading the judgment rendered by the Second Judicial District Court for the Parish of Bienville (the same court in which the present suit was instituted) on March 4, 1938, in the case of J. D. Adams Company v. Parish of Bienville Police Jury, as res judicata and an estoppel against any attack thereon by the respondents and the intervenor, again reiterating the motion to strike made a part of the first two motions. This last motion was maintained. The respondents and the intervenor filed a motion for a rehearing, averring that the judgment of March 4, 1938, was not a final judgment, for an appeal had been taken therefrom by certain taxpayers of the parish and was still pending at the time this suit was instituted. This motion was denied.

On the trial of the merits, the judge rendered judgment in favor oí the relators, making the alternative writ of mandamus peremptory and ordering the respondents and the intervenor to pay the accrued interest due on the certificates of indebtedness and the principal on those certificates maturing- subsequent to the filing of the suit. From this judgment the respondents and the intervenor have appealed.

It appears that the J. D. Adams Company, from whom the Police Jury of Bienville Parish had intermittently purchased road material and machinery, taking advantage of the soil conservation program inaugurated by the Federal government in cooperation with the Extension Department of the Louisiana State University and Agricultural and Mechanical College, undertook to sell the Police Jury and its members on the idea of purchasing machinery that could, in addition to being used in working the parish roads, be leased to farmers for the terracing of their farms, the Police Jury applying the revenues derived from this source toward the liquidation of the amount expended in purchasing such machinery. The company was supported in this venture by the local county agent. To this end demonstrations were made in the various wards of the parish before the farmers and the local Police Jury members, resulting in the unanimous approval of the project by the farmers and the Police Jury and the purchase, by'the individual members of the Police Jury, of this new machinery under a resolution adopted on October 14, 1935, the old mach- ' inery being used as the down payment. The new machinery consisted of a number of tractors, terracers, and graders, and the individual Police Jury members in the various wards signed the sales contracts as evidence of the debt, notes therefor being subsequently signed by the president under authorization of a resolution of the Police Jury. The revenue derived from this terracing program was insufficient to meet the payments on the machinery as they became due and take care of all necessary expenses as well, due principally to the fact that the terracing program, because of the inability of the farmers to meet leasing payments, began to “peter out.” After numerous fruitless efforts had been made to secure payment from the Police Jury, the J. D. Adams Company, through its agent Thomas F. McNutt, who was delivering a tractor to J. Rush Wimberly, Jr., a contractor and one of the-relators here, entered into an agreement on December 17, 1937, under which Wimberly was made the agent of the Adams Company for the purpose of collecting all of the money then due the company by the Police Jury. This included, in addition to the price of the machinery purchased in connection with the terracing program, various other claims incurred prior thereto, aggregating in all $34,519.97, plus interest. According to the testimony in the record, Wimberly agreed to collect, at his own expense, the amount claimed, with the understanding the compány would receive 50% thereof in cash, Wimberly thereby acquiring the entire issue of the certificates of indebtedness.

Carrying out his part of the agreement, Wimberly employed counsel to institute suit against the Police Jury in the name of the J. D. Adams Company (No. 11551 on the docket of the Second Judicial District Court for the Parish of Bienville) to recover the $34,519.97, plus interest, due the company and obtained a judgment by default thereunder, the district attorney refraining from answering the suit when he was apprised that the Police Jury, considering the debt an honest one, wanted to pay it. Annexed to this petition was the resolution whereunder the State Bond and Tax Board’s approval of this indebtedness — incurred in good faith by the members of the Police Jury who purchased the equipment used in connection with the terracing program unaware of the provisions of Act No. 6 of the Second Extra Session of 1935 requiring that such approval be secured prior to the creation of any indebtedness — was sought by the Police Jury, as well as the approval thereof given by the board.

The default judgment in favor of the Adams Company was rendered on March 4, 1938, and the Police Jury did not appeal therefrom, but, on September 9 following, Langdon T. Frey, Sidney J. Burk-halter, Rufus Lacy, Edwin Winlock, Win-lock Gin Company, and Winlock Ice Company, alleging they were taxpayers and residents of the parish and as such parties in interest within the meaning and contemplation of Article 571 of the Code of Practice since the judgment required the levying of a tax against the taxpayers of the parish to satisfy the same, appealed devolutively. Almost immediately thereafter, the Adams Company, through the attorneys employed by Wimberly, authorized the clerk of court, also ex-officio recorder of the parish, to cancel and erase the said judgment in so far as it required the levy of an ad valorem tax on all. of the property and assessments of the parish to satisfy the same. The appeal, however, was perfected and is now lodged in this court.

In the meanwhile, the Police Jury, under its duly published ordinance of May 2, 1938, issued certificates of indebtedness amounting to $40,000 (80 of the par value of $500) in accordance with the provisions of Act No. 87 of 1928, as amended, said certificates being dated June 6, 1938, and conditioned to bear 5% per annum interest, payable semiannually, on June 6 and December 6. After the Attorney General, on September 14, 1938, and the local district attorney, on September 21, 1938, had stated in writing their opinion that the certificates so issued were legal and binding, they were delivered to and accepted by McNutt on October 27, 1938, in satisfaction of J. C. Adams Company’s claim against the Police Jury which had been reduced to judgment. McNutt, in turn, transferred the certificates to Wimberly for and in consideration of the sum of $20,000 in cash, Wimberly thereafter distributing most of them among the person's from whom he had secured the funds to effect their purchase, the attorneys employed to handle the transaction being given two each in payment of their services.

The contentions on which the respondents and the intervenor predicate their resistance to the claim of the relators have been summarized in the concluding paragraph of the brief of their counsel as follows:

“The certificate of the State Bond & Tax Board was null and void on its face, because it purported to authorize payment of a debt created in connection with soil conservation and terracing program, not a public purpose for which Police Juries are authorized to spend taxpayers money; the judgment against the Police Jury for $34,519.97 was null and void for the same reason, that it was for a debt created in connection with soil conservation and terracing program,— and for a ‘debt not lawfully incurred prior to July 1, 1936,’ and because it exceeded the power of the Court in ordering the Police Jury to levy an ad valorem tax above and beyond the limit of taxes which police juries are authorized to levy under the Constitution of 1921; the Ordinance purporting to authorize the issuance of the certificates was null and void because it authorized and provided for payment of a debt not ‘lawfully incurred’ as required by the statute, and because the certificates constituted a dedication of revenue which separately or together with other dedications already made bj' law exceeded the estimated revenue of the Parish for the year 1938 and for each of the twenty years ahead; the issuance and delivery of said certificates to the Wimberlys was null and void because obtained through collusion with the Secretary-Treasurer of the Police Jury, who provided the Wimberlys, simultaneously, with $3,500 out of the taxes of 1938 to help them raise the purchase price which they were to pay The Adams Company for said certificates.”

It is well settled in our basic law, as well as our jurisprudence, that he who alleges fraud must prove it. Article 1848 of the Revised Civil Code; Fort & Wife v. Metayer, 10 Mart., O.S., 436; Delee v. Watkins, 2 La. 306; Yeager Milling Co. v. Lawler; 39 La. Ann. 572, 2 So. 398; Mendelsohn v. Armstrong, 52 La. Ann. 1300, 27 So. 735; Valesi v. Mutual Life Ins. Co. of New York, 151 La. 405, 91 So. 818; Strauss v. Insurance Co. of North America, 157 La. 661, 102 So. 861; Garnier v. Ætna Insurance Co. of Hartford Conn., 181 La. 426, 159 So. 705; and Keller v. Summers, 192 La. 103, 187 So. 69. The facts from which an inference or presumption is drawn must not only be established in evidence, but the inference or presumption to which the proven .facts give rise must be strong and almost inevitable. Adams v. Liverpool & London & Globe Ins. Co., 5 Orleans App. 301, quoted with approval by this court in the case of Di Martino v. Continental Ins. Co. of New York, 187 La. 855, 175 So. 598.

By agreement of counsel, this case, because of the absence or death of a number of the witnesses, was tried mainly on the evidence adduced during the trial of the mail fraud case of the United States of America v. J. Rush Wimberly, Sr., et al., 1 No. 9380 of the Criminal Docket of the United States District Court for the Western District of Louisiana. A careful study of the evidence in that case convinces us — as it did the United States District Judge who, after hearing the same, directed the jury to bring in a verdict of not guilty of the mail fraud charge arising out of this same transaction — that the respondents .and the intervenor have failed utterly to make out their case of fraud against the relators. The other evidence in the record only serves to strengthen this conclusion.

The record shows that the Police Jury of Bienville Parish purchased this road machinery in connection with the soil conservation program then in effect and in pursuance to the resolution of the Police Jury adopted on October 14, 1935, the pertinent portion of which reads as follows:

“Be it resolved, by the Police Jury of Bienville Parish in extra session convened, that the members of the various wards be and they are hereby authorized to purchase tractors and road machines for the maintenance of roads throughout the parish.

“Be it further resolved that any purchases made in and for the various wards will be paid for from the funds belonging to its respective wards and said invoices shall be made for said wards and road districts.” (Italics ours.)

The road machinery so purchased was leased out in connection with the terracing program of the Federal government when not being used for road work, with the advice and approval of the Hon. Moreland Meadors, the then district attorney and legal adviser of the Police Jury. The evidence is conclusive that this machinery has been used for road work constantly since its purchase, only being leased for terracing at short intervals during the brief existence of the program, that is, after the harvesting of the crops in the late fall, and in the early spring, before the planting. Furthermore, it was shown that with the exception of the so-called terracer, costing only about Jíoth of the total amount expended on the machinery, all of the equipment purchased was road machinery, the terracer itself being susceptible of and actually used for road work, the only difference between it and a road grader being that the terracer has two wheels while the other has four.

The record further shows that neither Wimberly nor any of the other relators in this case had anything to do with the incurrence of this debt and that until the claim for the machinery was placed in Wimberly’s hands for collection by McNutt in the latter part of 1937, over two years after it was incurred, they had no connection whatsoever with the transaction.

In support of their allegations of fraud and collusion, counsel for respondents and the intervenor rely principally, if not entirely, upon the fact that young Wimberly, before entering into the agreement relative to the collection of the Adams company claim, discussed'the matter with liis father, then the district judge, in an effort to ascertain whether the claim was collectible, as well as upon the fact that a part of the $20,000 paid McNutt by Wimberly consisted of a check of the Police Jury in the sum of $3,500.

We do not understand upon what theory the other relators in this case were made parties to this alleged scheme to defraud unless it be that the respondents and intervenor infer such from the mere fact that some of these certificates were in their possession. They were purchased for value before maturity. The evidence shows that more than half of the total purchase price paid the Adams company for this issue was' derived from the money these people paid for their certificates, such purchase being made only after young Wimberly’s effort to negotiate the sale of the entire issue through the facilities of the local bank (although it later loaned him 50% of the face value of the certificates owned by him) had failed.

The mere fact that Wimberly sought his father’s advice before undertaking the responsibility of collecting this claim does not in itself constitute fraud or collusion. It appears to us that this was very natural, particularly in view of the fact that the younger Wimberly, who was not an attorney, was very close to his father in a business way, being partners in the construction business and having adjoining offices. Besides, it does not appear that Judge Wimberly profited in this transaction in any other manner than through his interest in the construction company, which company acquired some of the certificates, the profit derived from this transaction, that is, the certificates that were not sold for the purpose of raising the money with which they were purchased from the Adams Company, amounting to approximately $11,000, going to young Wimberly.

Nor do we see what comfort counsel derive from the fact that a part of the funds with which the certificates were purchased from McNutt consisted of the check of the Police Jury in the amount of $3,500 when the record shows that this check was given for the purpose of retiring seven of the certificates in accordance with an ordinance of the Police Jury.

Aside from the intimations and speculations to be found in the answer and brief of the respondents, adopted by the intervenor, the record is barren of any evidence that supports the charge that these certificates were issued and acquired through collusion and fraud.

After Wimberly contracted with the Adams company to collect this claim from the Police Jury, he placed the entire matter in the hands of his attorneys, who handled it from that moment until the certificates as issued were delivered to Judge Wimberly in his son’s absence. All of the members of the Police Jury as it was then constituted, many of whom are still members, testified they were not induced, coerced, or otherwise influenced by any of the relators or by anyone in their behalf with reference to the issuance of these certificates, their only motive in effecting such issuance being to pay a bona fide and honest debt. In addition, these certificates were issued by and with the approval of the State Bond and Tax Board in accordance with all of the formalities required by Act No. 87 of 1928, as amended, such issue being approved by the Hon. T. Kirinabrew, the then attorney of the district and legal adviser of the Police Jury, as well as by the Hon. Gaston L. Porterie, then the Attorney General of the state and now the Federal judge for the Western District of the State of Louisiana, both of whom gave their reasons for such approval in writing. Kinnabrew rendered his opinion both at the time these certificates were issued and again when this proceeding was instituted. The opinion of the then Attorney General rendered on September 14, 1938, addressed to the' Bienville Parish Police Jury is as follows:

“I have examined the proceedings of your police jury leading up to the issuance of the certificates of indebtedness. I find the resolution of the police jury requesting the State Bond and Tax Board to approve same; I find the correct approval of the State Bond and Tax Board of said indebtedness; I find that you passed the proper resolution authorizing the issuance of said certificates of indebtedness, and, in my opinion, the certificates issued under said resolutions are regular and binding obligations of the Parish of Bienville.”

The mere fact that the State Bond and Tax Board in approving these certificates of indebtedness referred to the same as having been incurred “in connection with Soil Conservation and Terracing program,” and that the resolution of the Police Jury requesting such approval also included a similar statement, does not, in our opinion, have the effect of nullifying such authorization or of changing the fact that the equipment purchased was road machinery and used as such by the Police Jury. Nor did the fact that this machinery was used in connection with the terracing program of the Federal government have the effect of vitiating the legality of the debt thus lawfully incurred.

It is our opinion, therefore, that these certificates are legal and binding negotiable instruments, having been issued by the Police Jury of Bienville Parish in conformity with and under the requirements of Act No. 87 of 1928, as amended, for a debt lawfully incurred prior to July 1, 1936, in the acquisition of road machinery used in connection with one of the Police Jury’s main functions — the maintenance and upkeep of the roads of the parish and the drainage thereof — under its proper resolution, and that the relators, having acquired these certificates in good faith, for value, and before maturity, are entitled to have the accrued interest thereon and the principal thereof as they mature paid out of the money dedicated and pleged by the Police Jury in the resolution authorizing the issuance and set aside for that purpose in a special account in pursuance therewith. •

The object of Act No. 87 of 1928, as amended by Act No. 207 of 1936, under which these certificates were issued, was, as expressed in its title, to authorize the parishes “to issue negotiable, interest bearing certificates of indebtedness” for the payment of any indebtedness “matured or unmatured,” exclusive of the bonded indebtedness, lawfully incurred prior to July 1, 1936, and to that end authorized them “to dedicate, appropriate and pledge not more than two (2) mills of the taxes respectively authorized ta such police juries * * * by the Constitution and laws of the State of Louisiana, for a period not exceeding twenty-five (25) years.” In order to give security to the holders of such certificates the legislature adopted its Act No. 347 of 1938, again amending and re-enacting Act No. 87 of 1928, by providing for a period of 30 days from the promulgation of any resolution of the Police Jury issuing certificates within which any interested party could “contest the correctness, the validity and legality of the debts for which such certificates of indebtedness are issued, the issuance of said certificates of indebtedness and/or the sale thereof, the validity of said certificates and the security pledged for the payment thereof, after which said period of thirty (30) days no one shall have the right to enter a contest for any cause zvhatso ever." (Italics ours.)

For the reasons assigned, the judgment appealed from is affirmed.

ODOM, J., dissents and hands down reasons. O’NEILL, C. J., concurs in the decree.

1 No opinion for publication.-