author: Blanchard, T. Nicholls, C. J.

text:
    No. 13,505.
    John M. Kelly vs. Edmund H. Chadwick.
    Syllabus.
    Ox Motion to Dismiss Appeal.
    1. Where a local assessment, or charge upon property for street improvements is made, or levied, by compulsion of law, without regard to the assent or dissent of the abutting' proprietors, it presents the case of a taw in the sense in which the word is used in the Article of the Constitution conferring jurisdiction upon this court.
    Where the answer impeaches the validity of the city ordinance on the ground that it imposes a greater burden on the abutting property than the paving statute authorizes, there is presented the issue of legality, vel non, of the tax sought to be collected, and this court has jurisdiction without regard to the amount involved.
    On the Mekits.
    1. The city of New Orleans, by Act No. 119 of 1886, as amended by Act No 142 of 1894, was authorized by a two-thirds vote “in its discretion to provide for the paving or banquetting of any street or portion thereof at the expense of the whole city, and to thereupon force, impose, and collect of the front proprietors of lots fronting on said streets a special assessment in proportion to frontage of three-quarters of the cost of said improvement.Under the authority so conferred the city, by a two-thirds vote by ordinance, ordered the paving of Hagan avenue from Canal street to Esplanade avenue, and caused the contract for the construction of the work on certain terms and conditions to be sold at public auction. The ordinance provided that under the provisions of the act recited the cost should be borne by the whole of the city, but that in accordance with the same there was levied on all the front proprietors of lots fronting on said streets three fourths of the cost of said improvement. It was expressly stipulated that the contractor should accept in settlement with the city, in part payment of the cost to the extent of the proportion of cost for which the abutting property was liable, a transfer of the rights of the city to the same with subrogation: this proportion to be fixed by the City Engineer and the Commissioner of Public Works and evidenced by certificates signed by them. The work was executed to the satisfaction of the city, the cost ascertained and certificates given. The present suit is against one of the owners of abutting property for recovery of his proportion of cost. Without questioning the consititu tionality of the law by which the General Assembly conferred the said authority upon the city, or that the work of public improvement was as a whole a work of special local public benefit, or that as a whole the work as executed did not carry out such purpose, the defendant resisted the claim on a number of grounds, livid: That the fact that some particular piece of property along the line of work might not be benefited would not justify Us owner in preventing the execution of the work on the ground of the unconstitutionality of the ordinance. It is not necessary for the purpose of the legality or the constitutionality of the ordinance as to liability of the abutting property that it should bo benefited in every possible respect, or directly, or immediately, benefited. The work is done for the benefit of the local public, and assessments levied upon the abutting lots, not because of any special benefits that each owner may derive from it, but because the local public good demands it. When the General Assembly has itself fixed in what proportion and by what standard the cost of the work is to be apportioned, the judiciary is not authorized to alter it and substitute for a fixed legislative standard by frontage, a judicial standard based upon actual benefits received, measured by values or enhanced values established by proof.
    2. The fact that from some unavoidable cause the work has, not been extended as far as contemplated by the ordinance and contract, does not cause the contractor to lose the entire benefit of the work done, where the general purpose of the work has not failed. The abutting owners can only exact that the amount of the cost be properly reduced. The fact that in the ordinance and contract the contributivo share of the abutting properties for the cost of the work was fixed upon an erroneous basis, does not work a forfeiture of the whole assessment. All that abutting owners can claim is that the proper proportion should be ascertained, and their liability not extended beyond it.
    APPEAL from the Civil District Court, Parish of Orleans — ■ Si. Paul, J.

      Denegre, Blair & Denegre for Plaintiff, Appellee.

      George L. Bright and Edwin N. Whitiemore for Defendant, Appellant.
    The opinion of the Court on motion to dismiss was delivered by Blanchard, J.
    The opinion of the Court on the merits was delivered by ISTicholls, C. J.

    Carried to the Supreme Court of the United States by Writ of Error.
   On Motion to Dismiss Appeal.

Blanchard, T.

The ground of the motion, made by plaintiff and appellee, is want of jurisdiction ratione maieriae appearing on the face of the record, the amount involved being $638.80, or a sum below the minimum jurisdictional limit of this court.

The City of New Orleans let a contract to A. J. Christopher to pave Hagan avenue from Canal street to Esplanade avenue.

As far as it was possible to do so the contract was executed. It was not wholly executed for the reason that Hagan avenue, for a small part of its line between the points indicated, had not been opened as a street.

Christopher transferred his rights and claims under the contract to the plaintiff.

Defendant owned certain lots having a frontagé on Hagan avenue along that part of the street paved. An assessment of the amount he was due as front proprietor, under the contract for paving the avenue, was made by the City Engineer and Commissioner of Public Works. He declined to pay and this suit was brought to enforce payment.

The petition alleges the contract with Christopher was made, and the paving done, in accordance with Act No. 73 of 1876 and with Sectiou 37 of Act No. 20, approved June 23, 1882, entitled “An Act to Incorporate the City of New Orleans,” etc., as amended by Act No. 119 of 1886, as amended by Act 142 of 1884, and in accordance with City Ordinances Nos. 11,184, 11,349 and 12,136, and other laws and ordinances on the same subject matter.

It is further averred that, prior to the making of the contract, the resolution to pave the -street was passed by the City Council by a two-thirds vote, and that notice of intention to pave the street and enact the ordinance relative thereto was published in the official journal once a week for four weeks.

A lien and right of pledge upon the property and its proceeds is claimed.

The prayer is for judgment against the defendant for the amount sued for, with interest, and with recognition of the lien claimed upon the property, and condemning the property to be sold and the proceeds applied to the payment of the indebtedness.

A supplemental and second supplemental petition were filed, which, in so far as the motion to dismiss the appeal is concerned, need not be further referred to.

Among other defenses set up, it is averred, on behalf of the defendant, that' the city ordinances under which plaintiff claims are unconstitutional and illegal, and the grounds for this charge of unconstitutionality and illegality are set forth in detail and at length.

From the several answers filed by defendant we think it sufficiently and affirmatively charged that the city ordinances, and the contract predicated upon same, transcend the powers and authority granted by the statutes relating to the subject of street paving in the City of New Orleans.

This brings the case, so far as the jurisdictional question raised is concerned, within the rule announced in City of Shreveport vs. Prescott, 51 La. Ann. 1895.

In that case, as in this, the assessment, or charge upon property for street improvement was made, or levied, by compulsion of law without regard to the assent or "dissent of the abutting proprietors. It was purely a forced contribution, the property owners having no voice whatever in the matter.

The law under Vhich the proceeding here was taken (Section 37 of Act 20 of 1882, as amended by Act 119 of 1886, as amended by Act 142 of 1894) authorized the City Council to levy the charge by simple ordinance (a two-thirds vote adopting same), without any precedent application of the owners of property.

The law under which the proceeding in the Prescott ease was taken (Act 10 of 1896) was, in this respect, the same, save that a majority, instead of two-thirds, vote sufficed to pass the paving ordinance and levy the assessment.

We held, in the latter case, that the forced contribution for street improvement purposes, under such circumstances, was a tax in the sense of the constitutional provision conferring appellate jurisdiction upon this court.

So, too, we must hold in the instant case. In the Prescott case the abutting proprietors impeached the validity of the city ordinance on the ground that it imposed a greater burden upon their property than the paving statute, correctly interpreted, permitted. Hence, the illegality of the tax, or forced contribution,- assessed against them.

This court, entertaining the view that the ordinance was not in' keeping with the terms of the statute, and to the extent not in keeping with it injurious to the abutting owners, annulled the same, reserving to the City Council of Shreveport the right to reform the ordinance so as to conform to the law.

Here the like contention is made — that the ordinance exceeds the authority bestowed by the statute, and injuriously affects the property owner.

There is, therefore, presented the issue of illegality, vel non, of the tax sought to be collected, and this court has jurisdiction.

Constitution of 1879, Article 81.

Constitution of 1898, Article 85.

The authority relied upon by appellee’s counsel to sustain his motion to dismiss — the Rosetta Gravel, Paving and Improvement Company vs. Adler, 52 La. Ann. 689- — is not in point.

For these reasons it is ordered that the motion to dismiss the appeal be denied.

On the Merits.

Statement of the Case.

The opinion of the Court was delivered by

Nicholls, C. J.

The plaintiff sues to recover from the defendant, as owner of property upon Hagan avenue, the sum of six hundred and thirty-eight 80-100 dollars, with recognition that payment of same was secured by lien and privileges on said abutting property, and the proceeds thereof, and condemning the property to be sold, and applied to the payment of said claim.

The amount claimed was declared to be the amount due by defendant and the said property as their contributive share of the cost of paving said Hagan avenue, under a contract made by the City of New Orleans and one A. J. Christopher, who had assigned his claim under said contract to the plaintiff. The amount so claimed was based upon a certificate signed by the City Surveyor and Commissioner of Public Worlcs of the City of New Orleans, which certified that “A.. J. Christopher, contractor for paving Hagan avenue with lake shells, as per Ordinance No. 12,136 of the City Council, adopted March 31, 1896, has constructed certain work under his contract, and that there is now duo him by Edmund H. Chadwick, for his portion of work done on Hagan avenue (river side), between Carondelet street and Toulouse street, as itemized below, the sum of six hundred and thirty-eight and eighty one hundredths (80-100) dollars, with interest at the rate of six per cent, per annum from date, until paid.

Lumber 4355.3 ft. B. M. at $35.00 per M................. $151 74
Shells 83,947 sq. yds. at $1.35 per yd.................... 1133 25
Filling 55.95 cu. yds. at 90c. per yd...................... 50 35
Cost of block ............................'............ $1335 37
City’s portion, one-fourth.............................. 333 84
Property holders...................................... $1001 53
Mean length of block 287,935 ft.
Cost per lineal foot to property holder............$1 73-915
Your proportion of cost 307.2 lin. ft. at..........1 73-915
Per foot .............................................. $534 27
Lumber 2,986.5 ft. B. M. at $35.00 per M.................. 104 53
Total..................................................$638 80
(Approved) A. O. Bell,
City Engineer.
(Approved) W. L. McGary,
Commissioner Public Worlcs.”
“Recorded in Mortgage Office Book 572, Folio 374, New Orleans, October 5th, 1896.”
(Signed) George Guinault.”

The petition contained allegations in the nature of inducement and others customary in actions of that character.

The cause of action and the pleadings were similar to those of the case of the Barber Asphalt Company vs. John Watt, 51 An. 1345. and Moody & Co. vs. Chadwick, 52 Ann. 1888, with such changes as would result from the fact that the work constructed was upon a different street, the contractor was a different person, and the sums involved were different in amount.

Defendant resisted the claim by a number of exceptions and defenses.

The case went to trial, evidence was adduced and the case was continued for argument. While matters were in this situation a decision was rendered by this court in Barber Asphalt Company vs. Watt (reported in 51 Ann. 1345), in which it was announced that under the provisions of the paving statute, Act No. 113 of 1886, owners of property abutting on the street paved were liable only for their proportion of total cost of paving the street; that they could not be charged with the cost according to their frontage along the front of the square in which their lots were situated; that this was not the rule of apportionment fixed by the statute; that for the sum assessed against their property no personal liability attached to the abutting owners beyond the value of the property affected; that the proceeding was purely one in rem acting on the property benefitted and none other.

Defendant then filed a supplemental answer. He denied the existence of the ordinance alleged in plaintiff’s petition, and if any was shown, charged that it was illegal and unconstitutional for the reasons set forth in his answer, originally, and further:

1. The ordinance provides, that all persons who had not paid a city license are denied the right to bid for the work, and provides that their bids would not be considered.

2. Because the ordinance, including the specifications, requires each property owner to pay for the quantity and quality of materials and cost of work in front of his property, and not for his proportion of the whole work according to frontage.

3. Because the ordinance and specifications require the contractor to employ only bona -fide resident citizens of the City of New Orleans as laborers on the work, and it deprives the citizens of this State and of each and every State, and the inhabitants thereof, of their privileges and immunities of citizens in the several States, secured to them by the Constitution of the United States, Sec. 2, which provides, “The citizens of each State shall be entitled to all privileges and immunities of the citizens of the several States.”

4. Because the City Charter provides that the work shall be given to the lowest bidder, and the ordinance and specifications exclude the lowest bidder and does not admit of competitive bidders.

5. Because the ordinance imposes a liability on the property owner irrespective of the question whether or not his property is benefited or damaged by the pavement.

Plaintiff, with leave of the court, filed a supplemental and amended petition: in which he averred that since the evidence in the case was closed, the Supreme Court of this State, in a certain cause, entitled the Barber Asphalt Company vs. John Watt, No. 12,927 of the docket of said court, had passed upon and decided the principal issues involved in the cause, and in said cause said court had decided that the properly owner’s proportion of the cost of paving a street should be determined by ascertaining the entire cost of the work assessable to the property fronting thereon, and apportioning the same to said property in proportion to. foot frontage; that said decision had revealed to plaintiff that the City Engineer’s computation of the amount due by defendant was erroneous; that the cost of one block, instead of the entire work, was taken as the basis of apportionment, according to foot frontage, the result being- that the amount claimed in his original petition was in excess of the amount due by defendant under the law as construed by the Supreme Court as aforesaid. That plaintiff desired to amend his petition by reducing the amount of his claim to five hundred and ninety-five and 54-100 dollars (594.54); and he averred that the total cost of said paving work assessable to property fronting thereon was $10,519.22; the total frontage of the property thereon and subject to assessment therefor, was 5,425.21 feet; and the amount chargeable per lineal foot to property frontage thereon was $1.93-895; that said last named amount, multiplied by 307.2 feet, the frontage of defendant’s property, produces $595.54, and which plaintiff now claims of defendant.

In view of the premises he prayed that leave be given him to file this amended and supplemental petition; that defendant be duly cited to appear and answer the same; and that, after due proceedings had, he have judgment as prayed for in his original petition, except that the amount of said judgment be for the sum of five hundred and ninety-five and 54-100 dollars, instead of six hundred and thirty-four and 80-100 dolarsl; and further prayed for general relief.

He subsequently filed with leave of the court, a second supplemental and amended petition, in which he averred that he desired to correct a mistake in calculation made in his first supplemental and amended petition, wherein it was stated that the total cost of said paving work assessable to the property fronting thereon was $10,519.22, the total frontage of property thereon, and subject to assessment thereof wa« 5,425.21 feet,'and'the amount chargeable per lineal foot to property fronting thereon was $1.93-895.

That he had since ascertained, and now averred, that the foregoing figures did not include that portion of the work contracted for, and a necessary incident of the paving work, which consisted of curbing, wings, etc., and the lumber used for such work adjacent to the sidewalks along the said street to be paved; that the entire cost of said work was $1.89.375, or $0.34906 per lineal foot; that accordingly, the.amount chargeable per lineal foot to property on said paving street was not $1.93-895, but $1,931-895 plus $0.3406, making the total due by defendant’s property, having a frontage of 307.2 feet, the sum of $702.86, which was the true amount due plaintiff.

That plaintiff was willing, to avoid confusion, to waive the excess of what was due as aforesaid, over the sum shown to be due by the certificate of the City Engineer, filed as exhibit of its original petition, in order that he might have judgment for the amount originally prayed for.

Defendant first excepted and under reservation of his exceptions answered these two petitions. Tie excepted to the same for the general reason that the matters therein contained and as in them stated, were insufficient in law for plaintiff to have and maintain the action and specially because the pretended ordinances of the City of New Orleans, as recited in plaintiff’s petition, and his alleged contract were illegal and unconstitutional, and therefore null and void for the reasons set forth in the answer and supplemental answers heretofore filed, which defendant reiterated in the same manner as if they were again specially set forth. That the city ordinances and specifications required the contractor to employ only bona fide resident citizens of the City of New Orleans as laborers on the work and were therefore contrary to the Constitution of the State of Louisiana, and Article IV., Sec. %, of the Constitution of the United States, and to the NIV Amendment of the Constitution of the United States.

That the paving of the streets in front of his property had been of no benefit to it; on the contrary, had damaged it, and the rendition of any judgment against him was taking his private property for public purposes and was contrary to the Constitution of the State of Louisiana (Article 167) and contrary to the Constitution of the United States (Article V).

In his answer he pleaded the general issue and prayed for' judgment, and that all liens recorded and privileges recorded against his property to secure plaintiff’s claim be cancelled.

Simultaneously with plaintiff’s filing his amended petition, the case was on his application reopened for the purpose of allowing ’him to make the corrections mentioned in his supplemental petition.

New evidence was adduced including a new certificate signed by ths City Engineer anc^ Oommisisoner of Public Works decía* ea to *_avo been issued in lieu of the first certificate and to apportion the cost in accordance with the decision of the Supreme Court in the case of the Barber Asphalt Paving Company vs. John Watt. It fixed $702.28 as the proportion of the cost of construction for which defendant’s property was liable.

The court rendered judgment in favor of the plaintiff against the defendant for the sum of six hundred and thirty-eight dollars and eighty cents, wilh six per cent, interest thereon from 24th September, 1896, and costs of suit, with recognition of lien and privilege on the property described in the certificate, and on the proceeds thereof; and ordered the propcity to be sold and the proceeds applied to the payment of plaintiff’s claim for the amount adjudged.

Defendant appealed.

Ordinance 11,849 of the Common Council is as follows:

“Mayoralty of New Orleans.
“City I-Iall, January 80th, 1896.
“No. 11,849, Council Series.
“An Ordinance relative to the paving of Hagan avenue, from Canal street to Esplanade avenue, with lake shells, under Act 119 of 1886, as amended by Act 142 of 1894.
“Whereas, the Council did, by Ordinance No. 11,184, O. S., announce its intention to direct the pavement of Hagan avenue from Canal street to Esplanade avenue, with lake shells, under the provisions of Act 119, of the Acts of 1886, as amended by Act 142 of 1894, and to levy an assessment for three-quarters of the cost thereof on the front proprietors on said street according to frontage; and, did, by said ordinance, direct the Clerk of the Council to publish notice of said intention in the official journal, once a week, for four weeks; and whereas, the said publication of notice of intention has been made in due form of law, and official notice thereof brought to this Council:
•‘Section 1. Be it ordained by the Common Council of the City of New Orleans, two-thirds of all the members thereof concurring, That the City Engineer is hereby instructed to immediately prepare plans and specifications for the paving of above named streets with lake shells, and report the same to the Council.
“Section 2. Be it further ordained, etc., That as soon as said plan and specification are approved by this Council, the Comptroller is ordered and directed to advertise for ten days for bids of the paving of above named streets with) lake shells, according to said plans and specifications, and under the provisions of this ordinance, the Council reserving the right to reject any or all bids.
“Section 3. Be it further ordained, That the cost of paving said street, as herein provided, and as established by the accepted bid, shall be borne by the whole of the City of New Orleans, but that in accordance with the provisions of Act No. 114 of the Acts of 1886, as amended by Act 142 of 1894, there is hereby forced, imposed and levied on all the front properietors of lots fronting on said street, three-fourths of the cost of said improvement and pavement, exclusive of the cost of intersections, said assessment to be levied on properties to the frontage of each property on said street, and to bear thereon as a first privilege, superior to the vendor’s lien, and all other privileges and mortgages.
“Section 4. Be it further ordained, That as soon as said improvement and pavement is completed and accepted, square by square, the City Engineer and Commissioner of Public Works be directed to measure, or cause to be measured, the frontage of each front proprietor on such completed and accepted squares, and to prepare and record in. the mortgage office of the Parish of Orleans, a certificate charging each front proprietor with three-fourths of the cost of the said improvement in front of his lot, which said certificate shall be made payable in favor of the contractor, who should do said work, as hereinafter provided, and which said certificates shall bear interest at the rate of six per cent, per annum from date until paid.
“Section 5. Be it further ordained, That no bid shall be received from any contractor for paving of said avenue as herein provided, unless he shall consent in his bid to receive the certificates, so ordered above, to be prepared by the City Engineer and Commissioner of Public Works, for such proportion of the price, as said certificates shall bear to the cost of the whole work. In other words, while the city contracts with the contractor to do this work at the whole, expense of the city, the said contractor is to consent to take in part payment of the price of said contract, the certificates of assessment hereby levied against the property holders fronting on said street, to the amount and extent of said certificates. Similar certificates are to be prepared against the city for the cost of intersections and the other quarter of the. pavement in front of private property, but the same are not to be recorded.
“Section 6. Be it further ordained, etc, That said certificates shall be due and demandable in favor of said contractor as soon as the same are issued as above provided, and any contractor to whom this contract is adjudicated is hereby specially subrogated to all rights, privileges, liens, claims, and demands of the City of New Orleans, in and unto the local assessments herein made upon the properties fronting on said street, and in and to the certificates aforesaid, with full power and authority to sue on said certificates or on the said local assessment in his own name, or in the name of the City of New Orleans.
“Adopted by the Council of the City of New Orleans, January 28, 1896.'
“DAN A. ROSE, “Cleric of Council.
“Approved January 30, 1890.
“A true copy:
“JbllN FITZPATRICK, “Mayor.
“Clark. Steen,
"Secretary to Hie Mayor.”

Opinion.

Plaintiff, in his brief, recognizes that under the law “a contract signed by the Mayor is prima facie proof of due observance of all antecedent forms and requirements of law.” Referring to his claims “that no notice of intention to pave Ilagan avenue from Canal to Esplanade street was published in the official journal, once a week for four weeks, and that the pretended ordinance was not passed by a two-thirds vote, of tire Council,” counsel declare they abandon the same.

There can be no question, and in fact it is conceded, that by Act No. 119 of 1886, and by that Act as amended by Act No. 142, of 1894, the Council of the City of New Orleans was authorized “in its discretion to provide for the paving or banqueting of any street or portion thereof, at the expense of the whole city, and to thereupon force, impose and collect of the front proprietors of lots fronting on said street, a special assessment in proportion to frontage of three-quarters of the cost of said improvement,” and that by said acts it was enacted that such local assessment should have a first privilege, superior to vendor’s privilege and all other privileges and mortgages.

The constitutionality of those acts is not attacked directly, but the exercise by the city of authority, under the powers so granted, is called in question as being illegal, and unconstitutional.

Of the issues presented for decision by appellant, some are not properly before us for consideration on this appeal. He attacks the legality and constitutionality of the ordinance on the ground that, unless his property was benefited by the work, he cannot legally be made to pay for the paving. It is not claimed that the paving of Hagan avenue, taken as a whole, was not a beneficial public improvement, nor that as a whole it was not of special local benefit to the owners generally of property fronting on the street. The mere fact that by carrying out such a public improvement, having in view the general good locally, and so resulting that some particular piece of property along the line of work might not be benefited, would not justify the owner of that particular property in preventing the execution of the work, nor warrant him in resisting the enforcement of the ordinance by which it was directed to be done, by pleading its unconstitutionality. It certainly cannot be properly contended that the owner of a few feet of low or swamp land abutting on a public street can hold in check a work of special local benefit, and also general public benefit, by interposing as a constitutional bar that his individual property would not be benefited. If every individual citizen could raise such a separate issue and have the constitutionality or legality of the ordinance tested or measured by the special effect of such ordinance on his own property, there would be no such thing as public progress. The special interest of a particular citizen would have to yield to the general good.

It is too late to question the right of the General Assembly to establish particular districts for the attainment of special local public good, through works of a particular character, and to order itself or authorize some political body to order, special assessments to be made, within the district, for the purpose of meeting the cost and expenses of such works. George vs. Sheriff, 45 Ann. 1232). The work is done for the benefit of the local public; the assessment for its payment is levied upon the abutting lots, not because of any special benefit their owners derive from the improvement, but because this local public good demands it, and the law authorizes special taxation for such purpose. (See Morrison vs. Hershire, 32 Iowa, 271-276). It is true that in some instances almost the whole benefit accrues to a few, but there can be no universal rule of justice -upon which such assessments can be made. An apportionment of the cost that would be just in one case, would be oppressive in. another. For this reason, the power to determine when a special assessment shall be made, and on what basis it shall be apportioned, rests in the legislature or some political body to which it has delegated that authority.

Referring to the subject, Oooley in his work on Taxation, page 429, says “the matter is wisely confided to the legislature and could not, without the introduction of some new principle in representative government, be placed elsewhere. With the wisdom or unwisdom of special assessments when ordered in cases in which they are admissible, the courts have no concern, unless there is plainly and manifestly such an abuse of power as takes the case beyond the just limits of legislative discretion.”

The subject of taxing districts, says Oooley (page 449), “belongs to the legislature — so much is unquestionable. The authority may be exercised directly, or in the case of local taxes it may be left to local boards or bodies, but in the latter case the determination will be by a body possessing for the purpose legislative power, and whose action must be as conclusive as if taken by the legislature itself. It has been repeatedly decided that the legislative act of assessing districts for special taxation on the basis of benefits, cannot be attacked on the ground of error of judgment regarding' the special benefits, and defeated by satisfying a court that no special and peculiar benefits are received. If the legislature has fixed the district and laic! the tax for the reasons that in the opinion of the legislative body such district is peculiarly benefited, that is conclusive, and so, when the legislature has adopted its method and standard of distributing the cost as constituting in its judgment an apportionment in proportion to the benefits as nearly as is reasonably practicable, the judiciary should not be called on to interfere.” In many instances, says Oooley (p. 451), “where streets are to be opened or improved, the benefits of which might be expected to diffuse themselves along the line of the improvement in a degree bearing some proportion to the frontage, the legislature has deemed it right and proper to take the line of frontage as the most practicable and reasonable method of possible benefits, and making that the standard to apportion the benefits accordingly. Such a method of apportionment seems at first blush to be perfectly arbitrary, and likely to operate in some cases with, great injustice, but it cannot be denied that in the case of some improvements frontage is a very reasonable measure of benefits, much more than value ’can be, and perhaps approaching equality as nearly as any estimate of benefits made by the judgment of men. However this may be, the authorities are well united in the conclusion that frontage may be lawfully made the basis of apportionment. Occasional hardships must inevitably result from the adoption of such a basis, but the question is fairly debatable, whether they are likely to be more serious or more frequent than those which are to be anticipated from the selection of some other rule.”

Appellant relies very greatly upon the decision of the Supreme Court of the United States in Village of Norwood vs. Baker (172 United States 269), but that case was decided upon an entirely different state of facts. Appellant’s property is not sought to be taken from him by the city in the exercise of the power of eminent domain. The city has simply exercised its unquestionable right and power of paving an existing public street in the interest of the special local public benefit, and demanded of owners of property abutting and fronting on the street that they contribute to the cost of the improvement in a manner and form, and to an extent fixed by the General Assembly. The object of the paving of the street was to benefit parties owning property upon it by the improvement of the access to their properties. It is not pretended that this particular purpose was not accomplished even as to appellant’s property. It cannot be exacted for the purpose of sustaining the constutionality of a statute or ordinance authorizing a work of local public improvement at the cost of abutting owners, that it be shown there is benefit in every possible respect to the particular owners, nor that the benefit be direct and immediate (Lent vs. Tillson, 72 Cal. 428; 14 Pac. 71; George vs. Sheriff, 45 Ann. 1232.)

This whole subject has been recently examined in Hadley vs. Dague, 62 Pac. 505, and the case of the “Village of Norwood vs. Baker,” referred to and discussed.

The General Assembly ha*s, in Act No. 119 of 1886, conferred upon the Common Council the right and power by a two-thirds vote to constitute any particular street which it proposes to pave, a special taxing district for the purpose of meeting the cost of making such paving. It has exercised this right and power in the matter of the paving of Hagan avenue. Having done so, the legislature itself has designated how, in what proportion and by what standard this cost is to be met. The Council was not at liberty to depart from'this apportionment. The judiciary is not authorized to alter it and to substitute for a fixed legislative standard, a fluctuating judicial standard based upon actual benefits received and measured by values or enhanced values to be established by evidence and proof.

Appellant claims that “if the ordinance has provided an illegal method of computing the cost to the property owner, the Council can not change it and institute another way to enable the contractor to collect. The ordinance is null and void. He can have no cause of action.”

We have held in Barber Asphalt Paving Company vs. John Watt, 51 Ann. 1145, and Moody & Company vs. Chadwick 52 Ann., 1888, that where the property owner or his property is sought to be made liable for a proportion of cost other than that fixed by law, he is entitled to protection, but where he is sought to be charged only to the extent which the law directs him to be'charged, he has not ground of complaint.

The parties to the contract in this ease were the City of New Orleans and A. J. Christopher. The work done has, as between the contracting parties, been accepted ás having been executed to the city’s satisfaction, entitling the contractor to payment. If, from any unavoidable cause the work has not been extended out as far as it was contemplated it should be, the property owners cannot complain unless a proper reduction of cost has not been made and their contributing shares boon correspondingly brought down, or the object had in view by the improvement had suffered from the fact. There is no claim of this kind alleged or shown. In Cooley on Taxation, page 468, it is said: “It is no defense to an assessment that the contract for the work was not performed according to its terms. The proper authorities must decide upon this, and if they accept the work the acceptance, in the absence of fraud, is conclusive. And even fraud, it would seem, could not-be accepted as a defense to the assessment, but must be determined in some direct proceeding instituted for the purpose.” It was decided in Nolan vs. Peese 32 Cal. 484, that fraud in letting the contract was no defense to the assessment. It might doubtless be a reason for enjoining the execution of a contract on a bill filed in due season.

Appellant overlooks the fact that the basis of contribution as between the city and the property owners affects the question of payment under the contract, not the contract itself.

The contractor cannot receive any greater payment from the property owners under the certificates than the law authorizes the property owners or their property to be charged with, but the fact that more was sought of them than the law authorizes does not cause him to forfeit what he is really entitled to. If the proportion of contribution was made on a wrong basis the abutting- owners had the right simply to insist that the proper basis to bo adopted and the legal proportion be established on that basis. The judgment, as it reads, decrees a general personal judgment against the defendant in favor of the plaintiff to its fullest extent.

We do not understand that such was the intention of the court below. It doubtless adopted the phraseology it used as a convenient method of describing the extent of plaintiff’s rights, assuming that the extent to which the judgment could be executed would be controlled by the application to it of the legal principles, governing claims of this particular character. In affirming the judgment appealed from we think it proper to say that as to scope and in its enforcement it must be governed by the principles announced in the case of the Barber Asphalt Paving Company vs. John Watt, reported in 51 Ann. 1888.

As so construed, the judgment appealed from is affirmed.

Rehearing refused.


source: Caselaw Access Project

author: Monroe, J.

license: Public Domain

text:
    No. 13,844.
    State ex rel., City of New Orleans et al. vs. Hon. Fred D. King, Judge Division "B" — Civil District Court.
    Syllabus.
    1. The City of New Orleans is acting within the scope of its administrative and police power in authorizing the laying of a third rail in connection with the re-arrangement of the tracks upon, and the paving of, one of its streets, though the question of the right of the particular company actually laying-such rail to make use of the same is involved in litigation. Whether it is advisable to lay the rail under such circumstances, in order to provide against the possible future breaking np of the pavement for that purpose, is a matter of legislative discretion.
    2. Street railway companies do not own the soil of the streets of New Orleans upon which their tracks are laid, and their ownership of the ties, rails, etc., constituting their tracks, is qualified by the fact that the City of New Orleans has the right to authorize other roads to use such tracks.
    3. In this case an injunction issued to restrain the laying of a third rail, the laying of which was authorized by the City of New Orleans. Held: That the injunction should have been dissolved, as on bond, upon the application of the city, and, on bond, upon the application of the company acting under such authority, and mandamus to that effect is made peremptory.

      P PPLICATION for a writ of Mandamus.

      Samuel L. Gilmore, City Attorney, and Harry H. Hall for Relators.
    Respondent Judge pro se.

      Dari & Kernan of Counsel.
   The opinion of the court was delivered by

Monroe, J.

The relators, the city of New Orleans and the St. Charles Street Railroad Company (which for the purposes of the present opinion will be called the St. Charles Company) apply for a writ of mandamus to compel the dissolution, on bond, and under the statute, of an injunction issued against them at the instance of the New Orleans and Carrollton Railroad Company (which will be called the Carrollton Company). The return of the respondent judge is amplified by the annexation thereto of the pleadings in the case in which the injunction was issued, together with considerable evidence, oral and documentary, received upon the trial of the rule nisi, which preceded the issuance of said injunction. The case -as thus presented is as follows, to-wit:

Canal street, between Basin street and the river, being the central thoroughfare from, and to, which almost all street cars operated in New Orleans take their departure, and return, had, by reason of the multiplication of tracks and cars, become so confused and congested that the city authorities deemed it necessary that the tracks should be rearranged, and that certain changes should be made in the handling of the ears. In the attempt to frame an ordinance on the subject, they were met with difficulties arising out of the effort to reconcile the conflicting interests of the different companies operating the cars, and progress in the desired direction was, therefore, slow. In May, 1899, however, an ordinance (No. 15,254) was adopted, directing the rearrangement of the tracks, and also directing that the cars of the Rampart and Dryades streets line, of the St. Charles Company, which enter Canal street at Rampart, should, instead of leaving that street immediately upon reaching St. Charles, run on to the ferry landing at the river and thence back, leaving Canal street at St. Charles, upon the return, and thereby extending the route of said line on Canal street by* about twenty-five hundred feet, and changing the starting point, or stand, from St. Charles street near the corner of Canal, to Canal street near the ferry landing.

It was further provided that over this extension the cars of the St. Charles Company should use the tracks either of the City Eailroad Company or of the Carrollton Company as far (in the direction of the ferry landing) as those tracks extended. The ordinance so adopted was variously amended during the year 1899, but the result was unsatisfactory to the Carrollton Company, and no action was taken under it.

In January, 1900, another ordinance was adopted, under which it appears to have been intimated that the city, in the exercise of its administrative and police powers, would make the changes contemplated without waiting- for the assent of the railroad companies. Thereupon, the Carrollton Company filed a petition in the Civil District Court, setting up certain rights in itself, attacking- the validity of the said ordinances, and praying- for an injunction to restrain action under them. The application for the preliminai-y injunction was, shortly after-wards, discontinued, the case was put at issue, the plaintiff amended by alleging- that it was a property holder and tax-payer and desired to appear in that capacity, to which the St. Charles Company answered, and, thereafter, the matter was allowed to rest.

Hostilities were, nevertheless, being carried on in another quarter. It appears that, in December, 1899, the city of New Orleans adopted an ordinance authorizing the sale of certain railroad franchises, which included the franchise to run cars on Canal street between St. Charles and the ferry landing, and the sale was advertised to take place upon March 29th, 1900. Upon March 16th, a few days before the filing of the supplemental petition by the Carrollton Company, as hereinbefore stated, Peter Johnson and E. J. Dare, appearing as citizens and taxpayers, instituted suit attacking- said ordinance on various grounds, and praying that it be declared null, and that the proposed sale be perpetually enjoined, and a preliminary injunction having been issued on March 2Srd, the defendants in injunction were refused permission to dissolve on bond, and the matter came before this court, with the result that the judge a quo was directed to dissolve the injunction, as on bond; and this order having been complied with, the sale was allowed to proceed (the question as to the validity of such sale being reserved to the merits). And the franchise was adjudicated to ihc St. Charles Company. It may be remarked here, that the case was afterwards tried -upon its merits, there was judgment in the court a qua to the effect that the sale was invalid, an appeal was taken, and the judgment appealed from is reversed in an opinion this day handed down.

In the meantime, a demand had arisen for the repaving of that part of Canal street upon which the congestion exists, and it was desirable, from considerations of both economy and convenience, that any rearrangement of the tracks which was to take place should be accomplished at once, and before the laying of the new pavement. The efforts to bring about some sort of an agreement upon the subject became, therefore, if possible, more earnest and persistent, and, finally, in September, 1900, an ordinance (No. 205, New Council Series) was adopted, amending and re-enacting those whifth had preceded upon the subject of the rearrangement of the tracks, etc., and dealing with the disputed question arising out of the proposed change with regard to the operation of the cars of the St. Charles Street Company by providing that a third rail should be laid to meet the difference in gauge requirements, so that the St. Charles Company might be able to run its cars over the tracks of the Carrollton Company, but that no cars should be so run until the question of the validity of the franchise claimed by the St. Charles Company should have been finally determined in this court; and, in the event of its being determined adversely to said company, that said third rail should be taken up at the expense of said company. It was believed by the Mayor of the city and by the President of the St. Charles Company that this arrangement would be satisfactory to,- and would be acquiesced in by, all parties in interest. And this belief proved to-be well founded as to all of the parties save the Carrollton Company, since the other roads operating cars on Canal street signed a contract accepting the ordinance according to its terms. That there was some reason for supposing that the Carrollton Company would pursue the same course appears from certain resolutions' adopted by its board of directors, and from a letter written by its acting president to the Mayor and Council of New Orleans, in June, 1899. Later on, however, the company seems to have decided that whilst it would, with full reservation of its rights as against the St. Charles Company, co-operate, in other respects in the rearrangement of the tracks, it would continue to oppose the laying of the third rail, and it notified the St. Charles Company to that effect. The city, in the meanwhile, had contracted for the paving, and the work was in progress, following close upon the rearrangement of the tracks, and moving in thet direction of thd river. When St. Charles street was reached, the subject became interesting to the St. Charles Company, for the reason that from that point it was necessary that the third rail should be laid in order to enable it to operate its cars as provided in the ordinance. When, therefore, the Carrollton Company had rearranged its tracks for about a square beyond St. Charles street, and the paving contractor had given notice that he was ready to follow with the paving, the St. Charles Company began the work of putting in the third rail. But this work was not allowed to proceed very far. The employes of the Carrollton Company appeared and placed themselves in the way. Thereupon, the President of the St. Charles Company appealed to the Mayor, and the Mayor order the Chief of Police to preserye the peace, which that officer accomplished by warning the Carrollton Company’s employes against further obstructing the work in which the St. Charles Company was engaged. This occurred upon the night of January 23rd, between eight and ten o’clock. Upon the following day, the Carroll-ton Company filed a supplemental petition in its pending suit against the city and the St. Charles Company, setting up absolute and exclusive ownership in the road beds and tracks upon, and in connection with, which the third rail was being laid; alleging that the ordinance authorizing the sale of Ihe franchise to run ears over said tracks from St. Charles street to the ferry landing, and the sale of such franchise to the said St. Charles Company, were void, and praying for an injunction, and for judgment decreeing the nullity of said ordinance and sale, etc.

After a hearing upon a rule nisi, a preliminary injunction was issued as prayed for, enjoining and restraining the city of New Orleans and the St. Charles Company “from interfering by force with the use, “possession, and enjoyment by plaintiff * * * of its tracks, road “bed, right of way, and franchises on Canal street from Dryades to “Liberty Place in this city, and from continuing in * * * un- “ lawful possession, through the medium of the police, of all that por- “ tion of the plaintiff’s track on Canal street, between St. Charles and “ Camp streets, in this city, and * * * from enforcing * * * “ Ordinance No. 15,254 * * * and the., amendments thereto, and “ Ordinance No. 205 * * * and the amendments thereto * * * “ and from * * attempting to exercise any of the rights, privi- “ leges, or benefits * * * attempted -to be conferred by virtue of “ the alleged adjudication of the franchise, under Ordinance 15,809 * “ * * and consummated by the contract between the city and the St. Charles * * * Company; and particularly enjoining the St. “ Charles Company from exercising any rights or privileges over said “ Carrollton * * * Company’s tracks on Canal street from St. “ Charles street to Liberty Place * * * and from laying a third “rail thereon, as authorized by said franchise,” etc.

Thereupon, the city and the St. Charles Company moved that said injunction be dissolved, on bond, as to the St. Charles Company, and, under the statute, without bond, as to the city, which motion, having been denied, the present application was made to this court.

In their petition, the relators set forth the various proceedings as hereinbefore described, including the issuance of the injunction; and aver that the effect of said injunction is to stop all paving on the neutral ground of Canal street, from a point between Camp and St. Charles streets and the river, and that said work is one of great public importance and necessity which is being prosecuted by the city government in the exercise of the authority and discretion confided to it by law. They further aver that no attempt was made to prove that the Carrollton Company would suffer any pecuniary injury by the laying' of the third rail; that it was proven, and not denied, that the only interference with the property of said company consisted in the laying of said rail in conformity to the provisions of the rearrangement ordinances ; that the Carrollton Company had consented to all the work required under said ordinances, and had co-operated in ordering and putting the same in, with the exception of said third rail, against the use of which, alone, by the St. Charles Company, it protested; that relators have a right to bond said injunction, and that they made application for permission to do so, which was refused, and that such refusal was arbitrary and illegal. And relators further aver that the Carrollton Company, by deferring action until it was supposed that the exigency of the paving work would constrain the relators to forego their rights, indicates an intention, illegally, to embarrass and disregard public rights, and that said injunction is an interference by the court, with the action of a co-ordinate branch of the government, acting in the exercise of the police power and for the convenience and safety of the citizens of New Orleans, and they pray for a mandamus, etc.

To this petition, the respondent judge makes answer and return as follows, to-wit:

“1. That the petition herein filed does not accurately and correctly set forth the facts alleged and established, nor the grounds of complaint of the New Orleans and Carrollton Railroad Company, set out in its petition and supplemental petition,'upon which this respondent acted; and, that tne court may be more fully informed thereon, respondent annexes to his answer the record of said cases, showing the pleadings, also the evidence and documents filed.
“2. That respondent found at the hearing of the rule msi, and so held, that the complaint of the plaintiff, the New Orleans and Carrollton Railroad Company, was well founded in fact and in law. That the relator, the St'. Charles Street Railroad Company, had taken forcible possession on the night of Wednesday, January 23rd, 1901, of the road bed, cross ties and tracks of the New Orleans and Garrollton Railroad Company, on Canal street, between St. Charles and Camp streets, in New Orleans. That said St. Charles Street Railroad Company was aided and actively assisted in so doing by the Chief of Police of New Orleans, and police officers, acting- in his presence and under his orders. That the agents and employes of the said New Orleans and Carrollton Railroad Company, there present and engaged in preparing the tracks for paving, then and there being done, were driven from the property by the Chief of Police under throat of arrest and imprisonment. That the property thus taken by the police from the Carrollton road and delivered to the St. Charles road was the property of the former company, and in no wise the property of the latter, who had no right, title, or ownership therein. That, acting under police protection, the St. Charles Street Company proceeded to remove certain tie rods from the rails of the track, and attached other tie rods thereto and laid another, or third, rail upon the cross ties of the Carrollton Company, and alongside of the track, connecting- the same by spikes to the cross ties of the latter company, and by bolts and other appliances to the third rail, tire whole being done during the night of January 23rd.
“That no previous legal proceeding had been taken by the St. Charles Street Railroad Company to divest the ownership of the New Orleans and Carrollton Railroad Company in the property or to enforce at law any right which the former corporation might have or claim to have, over, in, or upon, said track, cross ties, road bed and rails of the latter company; nor had said St. Charles Street Railroad Company made previous payment for the material and property thus appropriated.
That the New Orleans and Carrollton Railroad had never acquiesced in the rearrangement ordinances, or ini the franchise ordinances, referred to in the original and supplemental petitions, nor had it in any way acknowledged or recognized or acquiesced in any act, ordinance, or law, of the city of New Orleans, conferring rights on the St. Charles Street Company, on, in, or to, said property of the Carrollton Company, or in, and to, the franchise and right of way over the latter’s tracks from St. Charles street to Liberty Place, thence to the ferry landing at the head of Canal street.
That the Chief of Police was not acting ,on the orders or within the scope of the authority given him by law, or by the. Mayor of New Orleans. That the latter disclaimed, on the witness stand, having given any orders or authority to the Ohief of Police authorizing'him to proceed in the manner described.
That respondent-held, and now alleges, that the act of the Ohief of Police and the St. Charles Street Company, in the- premises, was a .trespass upon the rights and property of the Carrollton Railroad Company, and utterly without warrant or authority in law, and was an unauthorized seizure, and taking of the private property of the Carroll-ton Railroad Company without previous payment therefor, and was a usurpation and wrong' to private rights of property which could not be justified by any consideration of benefit to the public or to the St. Charles Street Railroad Company.
"3. That the Carrdllton Railroad Company acted promptly, and as soon as it was ascertained that the St. Charles Street Company intended to exercise the right claimed under the ordinances to lay and use the third rail in question. That the writ of injunction does not interfere in any manner with the paving of Canal street, which can and should proceed without interruption or delay, and without the laying of the third rail, the only effect' being that if this court should hereafter maintain the -franchise in favor of the St. Charles street road the cost of laying the third rail will be increased by about $3,000, for which cost and damages the relator will be protected by the bond which the respondent has required the plaintiff to give before the injunction may issue. That the rail in question, whenever laid, will be laid on the upper and lower side portions of the neutral ground on Canal street, arid will disturb the same only in a very limited space; arid it was estnb!-'shed that the paving can be pushed on without any reason -for delay, whether the third rail is, or is not, laid down, and there is no public necessity for laying same pending judicial inquiry into the rights of the parties in the premises. ’ . ■
“4. That the rearrangement ordinances of the city of New Orleans were attacked by the Carrollton Railroad Company in its original and supplemental petitions, upon the ground that the grant therein conferred upon the St. Charles Street Railroad Company, of a right of way on Canal street from St. Charles street to the ferry landing, was not germane to the subject matter and was contrary to the declared objects and purposes of the ordinances, was a violation of the city charter, which requires the selling of such franchises, after advertisement, at auction, to the highest bidder; was a valuable franchise, which would have realized a good price under competition, and was palpably an attempt to give, without consideration, to said St. Charles Street Railroad Company, a valuable and exclusive franchise not granted in said ordinances to the competitors of said railroad company and joint occupants of the Canal street tracks. That, on the face of the papers, said contentions seem to be sound, and make out a prima facie case in favor o! said plaintiff in injunction.
“5. That the franchise, under Ordinance No. 15,809, A. S., of the city of New Orleans, and the contracts thereunder in favor of the St. Charles Street Railroad Company, are also attacked by the New Orleans and Carrollton Railroad Company, on grounds less extensive, but substantially the same as those urged in the case of Dare & Johnson vs. St. Charles Street Railroad, and, inasmuch as respondent decided said suit against the St. Charles Railroad and said judgment has not yet been reviewed by this court, and inasmuch as respondent has heard no thing to cause him to change his mind upon the merits of the controversy, or to throw doubt upon the correctness of his decision, respondent was bound in law' and conscience to hold that the said company had no valid, subsisting, franchise rights in and upon Canal street from St. Charles street to the ferry landing.
“6. That, having reached the conclusion that the plaintiffs, the New Orleans, and Carrollton Railroad Company had been wrongfully and forcibly dispossessed of its private property, without previous compensation, or due process of law, and that the defendant, the St. Charles Street Company had been wrongfully and forcibly placed in possession thereof without title or ownership therein or right of possession thereto, and that the rearrangement ordinances and franchise ordinance and contracts aforesaid were invalid and gave no warrant in law for the wrongful action of the police authorities and the St. Charles Street Railroad Company respondent ordered the issuance of the injunction comjdained of.
“7. That having so found and decided, respondent considered that the acts so prohibited were such as to work the plaintiff in injunction irreparable injury, and respondent refused to permit the writ to be bonded, holding- the action! justified under the facts, and the interpretation of the statute in State ex rel. Cotting vs. Sommerville, Judge, 28 So. Rep. 977, and other cases- on the same subject matter. That .respondent believes that in so acting he has properly exercised the discretion vested in him by law.
Wherefore respondent submits the said action and refusal to this honorable court, and for the reasons above given prays that the preliminary orders herein issued may be revoked and recalled and the writ of mandamus refused, and for all general and equitable relief.”
It seems to us, from this return, taken in connection with the reasons given for issuing the injunction (which are in the record as part of the return; and with the injunction itself, that the judge a quo has proceeded upon the theory that the right of the relators to have such injunction dissolved is dependent upon the determination of either of the two questions: 11), as to the validity of the franchise said to have been acquired by the St. Charles Company to operate its cars upon Canal .street between St. Charles street and the ferry landing, and (2), as to the right of said company, under and by virtue of said franchise, to make use of the road beds, ties, and rails, which had been prepared and laid at the expense of the Carrollton Company. As to the first of these questions, it appears that he had already decided, in another case, that no valid franchise had been granted; and, giving the plaintiff in injunction the benefit of that decision, he says, in effect, to the defendants: “I have heretofore decided that no valid franchise to operate cars on Canal street between St. Charles street and the ferry landing has been granted to the St. Charles Company. You are now attempting, nevertheless, to exercise that franchise, and the effect of the injunction of which you complain is to restrain to you from doing so. I have found, no reason, however, to change my mind, and, holding now, as I have done heretofore, that no such franchise exists, I cannot permit you, by dissolving the injunction on bond, to do something which the law does not authorize.”

Pretermitting the question whether the defendants in injunction are attempting to exercise the franchise in question, and assuming for the purposes of the present question that they are so attempting, the view taken by our learned brother seems to involve a decision of the case upon the merits, but without a hearing on the merits. Of course, if the decision in “Johnson & Dare vs. The City et al.” is conclusive upon the parties now before the court, it may be said, from the point of view from which we are now considering the matter, that it was properly applied, but supposing that the suit of one tax-payer, suing for himself and others similarly situated, constitutes lis pendens as to a suit against the same parties on the same cause of action by another tax-payer, yet, if the plaintiff is allowed to go on with the second suit, it can hardly, at the .same time, be held that the defendants are so bound by the pendency of the first as not to be entitled to be heard upon the merits of the second. And if the relators, as defendants in the court a qua were entitled to be heard upon the merits of the question of franchise vel non, then the only thing' properly before the court, on the motion to dissolve the injunction on bond was, whether such dissolution would work irreparable injury to the plaintiff ip injunction, and the fact that, in another case, the respondent had decided that there was no valid franchise, was irrelevant and insufficient as a reason for denying such motion.

But, it abundantly appears from the record that the ordinance (No. 205, New Council Series), under the authority of which it is proposed to lay the third rail, was adopted for the express purpose of avoiding the difficulties which appeared to stand in the way of any attempt'to countenance the existence of the franchise in dispute. The situation was as follows: The city found the middle of Canal street covered with car tracks of a certain gauge, and considered it advisable that they should be rearranged, and that the street, at the same time, should be paved. There was one railroad company, however, with cars of a wider gauge, which claimed the right to operate them within the territory in question, and to which the city had undertaken to concede that right, but the matter had become the subject of a litigation, the duration of which was uncertain, and, in the meanwhile, further action in the matter of the paving -was suspended, for the reason that if the pavement should be laid with no provision for the wide gauge cars there was the possibility of the public being subjected to the inconvenience, and the parties in interest to the expense, of tearing it up again in order to make such provision, whereas, if the necessary third rail should be laid before, or in connection with, the paving, it was considered that in the event of its being held that no franchise to operate the wide gauge cars had been legally granted, it would be less expensive and less inconvenient to remove the rail than it would be, in the other case, to lay it. The whole purpose of the ordinance No. 205, therefore, was, to waive the question of the validity of the franchise to operate ears as claimed by the St. Charles Company, in order that the paving might not be retarded. The case would not have been materially different if the question of the right to operate wide gauge cars within the disputed territory had never been raised and had not been pending at all, but the city, in .view of the fact that a company operating them elsewhere might at some future time acquire that right had chosen to prepare the street íór it in advance. And, that this was the understanding, was apparent not only from the language of the ordinance, which disclaims any purpose to grant a franchise, or to prejudge the question of the validity of such grant, by providing mat the rail to be laid shall not be' used until the question is' so decided, and that ip the event of a decision by this court adverse to the validity of the franchise claimed by the St. Charles Company, said rail shall be taken up; but also from the conduct of the parties, since the Carrollton Company, although opposing the laying of the third rail, has co-operated in the other work which can be used only in the event that such third rail is laid.

It will be observed, also, that, whilst the inj unction is directed to the City of New Orleans as'well as to the St. Charles Company, the rights and obligations of the lhunic’pal corporation with respect to the administration of its principal thoroughfare do not seem to have been taken into account. It is, nevertheless, the law, as we understand it, and it has been so declared, in terms, by this court, that the streets of New Orleans are the common property of all the inhabitants of the city and are held by the corporation in trust for their use and benefit; that the corporation is without power to alienate the soil, or to sell or grant the exclusive use of such street, but that it is authorized and required to regulate such use, and cannot divest itself of that authority and obligation, which is part of the police power and is inalienable. And, further, that the corporation has the specific authority to compel all lines of railway operating upon the same street to make use of the same track, and had such authority before the Carrollton Company acquired the right to operate its cars on .Canal street.

Act No. 20 of 1882, Sec. 8; R. R. Co. vs. R. R. Co., 44 Ann. 748; R. R. Co. vs. R. R. Co., 47 Ann. 476.

It follows, therefore, that no railway company can be the absolute owner of a road-bed and track established in a street in New Orleans, but that such ownership is qualified by the fact that the ownership of the soil of the street is vested in the public, and the authority to administer and regulate the use of the street is vested, inalienably, in the municipal corporation.

Of the two questions, therefore, upon the decision of which is predicated the recognition of a right in the Carrollton Company to the injunction and the denial of the right of the city and of the St. Charles Company to release such injunction on bond, the first, i. e., the question of the validity of the grant to the St. Charles Company of the franchise to operate its cars on Canal street, between St. Charles street and the ferry landing, is not in this case; and the second, i. e., the question of the right of the St. Charlea Company to lay a third rail outside of the track of the Carrollton Company upon ties laid by said company and to attach the same to the rails laid by the said company, without previous expropriation or compensation, is not in the case, except as an issue between the Carrollton Company and the city, since the St. Charles Company is not assuming to lay. such rail by-virtue of the franchise ordinance, but by virtue of the rearrangement ordinance, which was adopted by the city in the exercise of its police, as w'ell as its administrative, powTer. The final question to ba determined, then, is, whether, upon the facts as presented, the rights and obligations of the City of New Orleans, in the matter of rhe administration and regulation of its main thoroughfare, dominate, or whether they are subordinate to the rights asserted by the Carrollton Company, with respect to so much of such thoroughfare as is occupied by the road-bed and tracks of that company?

In considering this question, we find, for the reason, mainly, that we approach it from a different point of view, that we are not altogether in accord with the respondent, as to certain questions, some of them of mixed law and fact and others of fact, which are important to the result. Thus, the respondent says that the “St. Charles * # * Company had taken forcible possession, on the night of Wednesday, January 23, 1901, of the road-bed, cross-ties, and tracks of the Carrollton * * * Company * * * that said St. Charles * * * Company was aided * * * by the Chief of Police and police officers * * * that the agents * * * of the * * * Carrollton * * * Company, there present and engaged in preparing the tracks for paving then and there being done, were driven from the property,” etc.

From our reading of the record, we conclude that the Carrollton Company had completed the work of relaying at least one of its tracks for some distance beyond St. Charles street, and that, between eight and ten o’clock at night, the St. Charles Company, acting under the authority of the city ordinance, began the work of putting in the third rail, upon the track thus completed, in order that the paving contractor might not be delayed; the necessity for the completion of the entire work of rearranging tracks and paving being considered very-urgent on account of the great inconvenience and, perhaps, danger which is likely to result from leaving so central a street torn up,and unpaved during the approaching carnival. We do not find that when the employees of the St. Charles Company began their work there were any of the employees of the Carrollton Company on the track where the work was begun, and lienee the employees of the St. Charles Company used no force and did not drive the employees of the Carrollton Company from the property. Upon the other hand, we understand, that, when the employees of the St. Charles Company began their work, the employees of the Carrollton Company, almost immediately, obstructed them; that the president of the St. Charles Company then appealed to the Mayor, who directed the’ Chief of Police to preserve the peace, and that the latter officer ordered the employees of the Carrollton Company to get out of the way, and cease their obstruction. And it is in the light of this state of facts that we must consider the charge that the St. Charles Company, -aided by the police, took forcible possession of the road-beds, cross-ties and tracks of the Carrollton Company. In a certain sense, no doubt, it is true, that, whilst the employees of the St. Charles Company were engaged in putting a third rail outside of the track of the Carrollton Company, they were in possession of the roadbed and track of the Carrollton Company, but it must be remembered that the road-bed and track in question form part of the middle of the main street of the City of New Orleans, and that the employees of the St. Charles Company were putting down the rail by the authority of-the municipal corporation. Their position was not very different, therefore, from that of the paving contractor, who was working under contract with the city, but who, it may be assumed, took possession of the different tracks, and possibly filled the spaces between -¡he ties and covered the road-beds with concrete or some other material, but of whom no complaint is made or is likely to be made for the reason that he was acting under the authority of the city; and the city has not divested herself, and cannot divest herself, by grants to railway companies or otherwise, of either the authority or the obligation to control ■the condition of her streets. If, then, the paving contract had called for railroad iron, instead of the material used, it is difficult to perceive upon what ground the Carrollton Oopmany could have objected; and if no objection could have been successfully urged in such case against the paving contractor, there would appear to be no reason why it should be sustained when the city, through some other authorized representative, undertakes to lay a single rail in a street which she might pave with rails if she saw fit.

The return of the respondent states “That the Carrollton * * * Company acted promptly and as soon as it was ascertained that the St. Charles * * * Company intended to exercise the right claimed under the ordinance to lay and use the third rail in question.”

The meaning of this is not very clear, but the record shows abundantly that the Carrollton Company was apprised long before the night of the 23rd of January, 1901, that the St. Charles Company intended to lay the third rail when the work of rearranging the tracks reached the proper point, and was requested to co-operate with the St. Charles Company in the matter, but refused to do so either by allowing the latter company to contribute to the expense of the special work to be put in or otherwise. And it is also abundantly established that the St. Charles Company did not intend to operate its cars over the disputed territory or make use of the' third rail put in by it unless, and until, the right to do so should have been sustained by the judgment of this court.

There has been no effort to show that any pecuniary damage will result to the Carrollton Company by the dissolution of the injunction, and we are unable to conceive how any such damage can result. It is claimed that to permit the laying of the third rail in question will be to permit and authorize an invasion of right, and a trespass upon property. The evidence shows that the rail is to he laid outside of the track, and upon the projecting ends of the cross-ties which support the rails constituting the track; that, in order to lay it in place, the spikes on the outer side of the track rail are drawn and replaced by what are called “filler blocks,” being blocks of east iron which hold the track rail and the third rail in their relative positions; and that the tie rods, i. e., iron rods running from one rail to another, to assist in holding them in position and in keeping the track from spreading, are to be replaced by similar rods, which are long enough to run through all three rails. This construction, it appears is identical with that adopted by the Carrollton Company itself on Canal street, between St. Charles and Baronne, and is not the subject of criticism, the only question being as to the alleged invasion of right and trespass upon property of which the Carrollton Company claims to he the owner. We have already seen, however, that the Carrollton Company is not the owner of the soil upon which its track rests, and that it has only a qualified ownership in the ties, rails, etc., which constitute its track. The soil is part of the street, the title to which remains in the public, and the administration of which, for all the purposes of a street, is vested' in the municipal corporation. The track laid by the railway company was so laid, upon the express condition that the municipal corporation, having no power to grant to a private corporation or to a particular person the exclusive use of any part of the street, should have the right to authorize the use of the said track by other companies, they to pay their proportion of the cost of construction and maintenance. It is evident from this that the case, as presented, bears but little resemblance to that of State ex rel. Cotting vs. Sommerville, Judge, in which it appeared that the relator was the sole, absolute, and undisputed owner of land which was about to be taken for a public purpose without previous compensation.

In the case before us, the authority of the municipal corporation to administer Canal street and to control its condition is as far beyond dispute as was the title of relator in the Ootting case to the land which was the subject of that litigation. It cannot be denied that in the exercise of such authority, the city whilst bound not to interfere, unreasonably, or unnecessarily, with the railway company’s use and enjoyment of its road-bed and track, can, nevertheless, enter upon such road-bed and track, as it can enter upon any other part of the street, and deal with the same as public interest, safety, or necessity, may require. The question which immediately confronts us, therefore, is, whether the particular act complained of is within the scope of the authority mentioned; that is to say, whether the putting down of the third rail, in the manner and under the circumstances disclosed, is to be regarded as an act done as a matter of public interest, safety, or necessity; in the exercise of the power to administer the streets and keep them in order, and without unreasonably or unnecessarily interfering with the rights granted to the railway company. And this question, we think, must be answered in the affirmative. Absolutely, no interference with the use of its tracks by the railway company results from the mere laying of the third rail; and, absolutely, no pecuniary, injury is inflicted. The rail, though laid upon the outside of the track of the company, rests upon the ties which support the track, and which were placed in position by the company, but that is an accident of the situation. The rights of the company, on Canal street, where space is measured by inches, are not to be determined by any rule which might be applied if its tracks were laid through a wilderness upon a right of way of the usual width. We are not advised that it is necessary, considering the character of the paving which is being done by the city, that cross-ties should be used, and still less that it is essential that they should project beyond the rails constituting the track. We are not, therefore, in a position to hold that the laying of the third rail where it is proposed to lay it will, from any point of view, conflict with the rights granted to the Carrollton Company.

As to the other matters — the substitution of the “filler blocks” for spikes, and of the long tie rods for short ones, it is enough that its property is not injured and that the Carrollton Company is not thereby interfered with in the use of its tracks. We have no reason to believe that there is, or can be, anything in the grant to that company which would authorize it to so maintain its tracks as, unnecessarily, to obstruct the laying of others, and we are of opinion that i t would be a misapplication of a valuable principle of law to hold that the acts in question constitute a taking of private property without compensation.

We, therefore, conclude that the alternative writ of mandamus herein issued should now be made peremptory, and it is so ordered.


author: Piar chard, J.

text:
    No. 13,480.
    Joseph J. Fowler vs. The Great Southern Telephone & Telegraph Company.
    Syllabus.
    1. Plaintiff sewed in the capacity of general manager and secretary of defend ant corporation. A salary was fixed for him for the former position; none for the latter. During the nine years he filled the positions he drew monthly his ‘salary as general manager, but made no claim for compensation as secretary. Only after his retirement from the service of the company does ho assert his right to a salary as secretary independent of that be was receiving as general manager. Held: He cannot recover.
    2. The measure of power vested in the board of directors of defendant company is determined by its charter and by-laws, and the board’s action in excess thereof is not binding upon the corporation.
    .3. It is not found that plaintiff was ever employed specifically by the yewr as general manager, but if he were, there was no power in the board of directors to so employ him, since the by-laws distinctly declare that all officials shall hold office “during the pleasure of the board.”
    APPEATj from the Civil District Court, Parisli of Orleans— Ellis, .7.

      Guslave V. Gonial ana S. S. J ones for Plaintiff, Appellant.
    'Denegre, Blair & Denegre, for Defendant, Appellee.
   The opinion of the Court was delivered by

Piar chard, J.

The cause of action herein set forth is a claim for compensation growing out of plaintifl’s incumbency of the positions of Secretary and General Manager of defendant corporation.

Stated, the account would read as follows:—

Nine years’ salary as Secretary, from May, 1889, to May, 1898, at $300 per year.....:..............................$2,700 00
Eleven months’ salary as General Manager, from April, 1897, to March, 1898, at $250 per month................... 2,750 00
Total amount claimed ...............................$5,450 00

From a judgment in his favor for $68.66, plaintiff prosecutes this appeal.

Irn this court defendant files answer, praying rejection of the demand in bolo.

Plaintiff filled the positions of Secretary and General Manager of the company. This is not disputed.

He claims that to the office of Secretary there was attached an annual salaiy of $300, to which he is entitled.

Defendant denies this, and avers that the Secretaryship as filled by plaintiff was not a salaried office, that no salary was ever agreed to be paid him as such, that he never demanded ails'- during the nine years he filled the position, and that the claim therefor now made is an afterthought — taking shape only after his .resignation from the company’s service had been demanded and given.

Plaintiff claims that to the office of General Manager was attached an annual salary of $3,000.00; that his employment in that capacity was by the year; that he had filled the position for many years and was last elected thereto by the Board of Directors in March, 1897, for one year; and that his resignation having been called for one month later, amounting to a discharge without cause, he is entitled to the remaining eleven months’ salary.

Defendant denies that he was or could be elected General Manager for any specified period, for the reason that the by-laws of the company expressly declare that persons chosen by the Board of Directors to that office, and other offices of the company, shall hold their positions during1 the pleasure of the board.

I.

With regard to the claim for salary as Secretary, it is not sustained.

The minutes of defendant company of May 11, 1886, show that Paul J. Marrs was elected Secretary and Treasurer, and that his salary as such was fixed at $25.00 per month.

The minutes of the following year (May 10, 1887) show that the salary of the Secretary and Treasurer was to he the “same as last year,” and that Paul J. Marrs was again elected to fill those offices.

The following year (1888) Marrs was re-elected Secretary and Treasurer, but nothing was said about salary.

The next year (1889) a change in the offices was made. W. II. Boffinger was elected Vico President and Treasurer; Eowler (plaintiff) was elected General Manager and Secretary; and Paul J. Marrs was elected Assistant Secretary and his salary as such was fixed at “$50.00 per annum from this date.” No mention was made of any salary for the secretary, or the treasurer, and no mention appears of any salary for these positions in any of the meetings of the Board of Directors from that date down to the present time.

PlaintiiT continued to he elected each year to both positions — Secretary and General Manager; Paul J. Marrs .to the position of Assistant Secretary; and Boffinger to those of Vice President and Treasurer.

We attach little or no importance to the circumstance that sometimes, at the meetings of the Board, plaintiff was elected Secretary and General Manager by one motion or vote which included both positions; at other times hy separate motion or vote — one for each position.

This claim hy plaintiff for salary as Secretary is based entirely upon the minutes of May 11, 1886, fixing the salary of the. Secretary and Treasurer, Paul J. Marrs, at $25.00 per month, and the minutes of May 10, 1887, continuing- that salary to Marrs for those positions for another year.

It is not asserted and is not the fact that any salary as Secretary was ever fixed for plaintiff individually, or mentioned in connection with the office at any of the elections whereat he was chosen to the position.

On the contrary, it is shown by the testimony of the President of the company that the main purpose of associating the office of Secretary with that of the General Manager and electing Mr. Fowler to both was one of economy — to save ihe salary of $300.00 per annum which had theretofore been paid to Paul J. Marrs as Secretary and Treasurer.

After May, 1889, it appears that no compensation was ever voted to either the Secretary or the Treasurer.

It is also shown that in October, 1892,'at the time Fowler’s salary as General Manager was increased from $2,400 to $3,000 per annúm, all the services he was then rendering were taken into consideration.

At no time after his election as Secretary in 1889, did Fowler'ever lay claim to compensation for services rendered in that capacity.

He allowed nine years to elapse, during all of which time he drew monthly his salary as General Manager, but claimed nothing as Secretary.

He asserted no claim to such salary until his official connection with the company had been severed. He never communicated to the President of the company, nor to its Board of Directors, his understanding that he was to draw a salary as Secretary.

As General Manager he had supervision of all the pay rolls; his approval of all pay rolls and vouchers was required. None of the pay rolls or vouchers ever bore his name and salary as Secretary, though they bore the names and salaries of all other officers of the company, including his own as General Manager.

At one time, in consequence of illness, he asked permission of the President to over-draw his salary as General Manager. Yet at that very time, according to his present contention, he had to his credit and oxi deposit with the company a comfortable sum as salary as Secretary. He set up no claim in that period of pressing necessity, to this fund.

During Ms administration as General Manager, it was his duty from time to time to make reports to the Board of Directors of the general expenses of the New Orleans office, and of the net revenues derived therefrom. Yet he never once, in these reports, carried this claim for salary as Secretary as an outstanding liability of the company, nor took it into account in figuring the net revenues.

There are other circumstances tending to negative this claim, but the above is deemed sufficient.

H.

With regard to the claim for eleven months’ salary as general manager, it, too, stands insufficiently sustained, except as to seven days in May, 1897, for which the judge a quo allowed Mm.

The by-laws oí the company were framed and adopted by its stockholders.

After adoption by the stockholders they may be altered or amended at any annual meeting of the stockholders by a majority vote of those represented, or at any legal meeting duly called for that purpose. This is the declaration of the by-laws themselves.

There is no authority in the board of directors to adopt by-laws, nor to change, amend, or modify those adopted by the shareholders.

Furthermore, the measure of power vested in the board of directors is determined by the charter and by-laws, and the board’s action in excess thereof is not binding upon the corporation. See Hunter vs. Sun Mutual Ins. Co., 26 La. Ann. 14; Douglass vs. Merchants’ Ins. Co., 118 N. Y. 23.

The by-laws of the company were adopted June 8, 1883, prior to plaintiff’s connection with it. Subsequent to that time, there were amendments adopted, but neither in the original by-laws, nor the amendments, was any authority given the board of directors to make contracts with the company’s officials for employment by the year.

On the contrary, Article II of the by-laws, as adopted in 1883, has stood intact from that time, and that article, while vesting in the board authority to choose the officers of the company, prescribes that these officials shall hold office “during- the pleasure of the board.”

We do not find that plaintiff was ever employed specifically' by the year, but if he were, there was no power in the board of directors to so employ him, and he knew it, for as secretary he was custodian of the archives, to-wit: — the charter, by-laws, minutes, etc.

The fact that he was chosen general manager at the recurring annua1 election of officers, and that the salary of the position was designated as so much per year, does not of itself sustain his contention that his was a yearly employment at a yearly salary.

It was not convenient to elect officers less often than once each year, and while the salary was specified at so much per year, in point of fact it was payable and drawn monthly, as usual in such cases.

Fowler’s resignation, while dated April 28, 1897, appears not to have been accepted until May 7th. He was paid his salary up to and inclusive of the month of April. For the seven days in May, up to the date of the acceptance of his resignation, he is entitled to the salary, and the district judge so decreed. This was, we think, proper.

His contention that he rendered the company services after that date, for which he should be paid, is not sustained.

Neither is his contention that having resigned conditionally, and the acceptance oí his resignation having been without the conditions attached, he is to be considered as not having resigned, and having reported for some time thereafter for duty, even though not recognized as still in the employ of the company, he is entitled to the salary during the time he so reported.

We do not regard his resignation as being a conditional one. He had not the right to attach conditions to it. He was not employed under contract for any period of time. His resignation could be called for at any time at the 'pleasure of the board of directors. Calling for his resignation was but. a courtesy extended him. It was in the power of the board to remove him from office at any time, and when they exercised that power, all he could claim in the way of salary was what would be due him up to the date of the acceptance of his resignation.

True,, in his letter of resignation there was this declaration: — -“Reserving all my rights of interest and contracts connected therewith” — • meaning with his employment as secretary and general manager. But these words are not to be construed as attaching “a condition” to his resignation. If he had any contract interests or rights he could, of course, reserve them and did. But we have not found that he had such rights- to reserve.

He stated also in his letter of resignation that it was “understood and so stated by Mr. Caldwell (representing Mr. Barton and others) that my services have been satisfactory, and entitled to recognition substantially.” _

The “Mr. Caldwell” and the “Mr. Barton” referred to were directors of the company, and Mr. Caldwell, it seems, was the one who was deputed to ask his resignation.

It is quite true that in the conversation had between Caldwell and the plaintiff, which resulted in the resignation of the latter, the former told him that, appreciating the readiness with which he had consented to send in his resignation, and considering his long connection with the company, the board would be glad to show him some substantial acknowledgment of his services, etc:

We do not think that from these words of Director Oaldwell any legal liability .on part of the company to the plaintiff resulted.

Fowler claims that more than this was said by Oaldwell to him a1-that interview, but on this the preponderance* of evidence is against him.

It appears that later, the company, through its attorneys, did offer him, upon his retirement, a sum equal to three months’ salary. This may have been, from the company’s standpoint, the tender of a “substantial recognition.”

Eowler declined it, preferring to sue for the eleven months’ salary he claimed to be due him as general manager, and the nine years’ salary he claimed as secretary.

Judgment affirmed.