author: Watkins, J. Breaux, J.

text:
    No. 13,334.
    John Nash vs. Canal and Claiborne Railroad Company.
    Syllabus.
    On Motion to Dismiss Appeal.
    An application to dismiss appeal on the ground that the defendant corporation has made an assignment of its property and franchises, and is no longer a party to the suit, will not be favorably considered when the record discloses that such assignment ivas made several months prior in date to the judgment appealed from, and of whihc appellee made no complaint by appeal, or answer filed in this court.
    On the Merits.
    When a stop Is made to permit a passenger to alight, ordinarily, the conductor should be on the platform of the car. The passenger who testified that he was injured in a fail from the car said, in substance, that his fall was occasioned by the brief stop and the abrupt starting of the car. The conductor, seeking to account for his being away from the platform during a stop, was flatly contradicted in several particulars by another employe of the railroad company.
    The proper manning of the car was not satisfactorily shown in the matter of permitting the passenger to alight. The passenger is, in some respects, corroborated in his account of the fall.
    The judge of the District Court who saw and heard the witnesses sustained his demand in part. There is always a presumption sustaining a judgment, and as the testimony does not rebut that presumption, and does not indicate wherein there was error, the judgment is affirmed.
    APPEAL from the Civil District Court, Parish of Orleans.— ' 8i. Paul, J.

      Theodore Ootonio for Plaintiff, Appellee.

      Glegg & Quintero for Defendant, Appellant.
    The opinion of the court, on the merits, was delivered by Breaux, J.
    On Motion to Dismiss Appeal.
   The opinion of the court'was dlivered by

Watkins, J.

Plaintiff and appellee moves to dismiss the appeal, on the ground that at the time of the filing of the transcript of appeal,there was no such corporation in existence as the Canal & Claiborne Railroad Company — said company having abandoned its corporate franchise and charter whereby the corporation became dissolved.

The said corporation having so abandoned its corporate franchise and charter, it ceased to be a going concern at the time of the filing of the transcript of appeal in this court; and that, therefore, there is no appellant prosecuting an appeal in this court, and this court is not vested with jurisdiction to hear and determine the appeal for want of a party appellant.

The record discloses that the cause was submitted to and decided by the judge of the lower .court, on the 25th of May, 1899; and that for the reasons orally assigned, it was decreed that there be judgment in favor of the plaintiff, John Nash, and against the defendant, the Canal & Claiborne Railroad Company, for the sum of two hundred dolllars.

It discloses, further, that the attorneys for the defendant, applied for a new trial, and upon its submission to the judge a quo, on June 16th, 1899, he reduced the judgment in favor of the plaintiff to the sum of one hundred dollars, and refused the application — this judgment having been signed on June 22, 1899.

It further shows that counsel for the defendant filed a motion for a suspensive appeal, on the same day the judgment was signed, and an order of appeal was granted, conditioned upon the defendant furnishing a bond as the law requires. That on the 3rd of July, 1899, the defendant gave an appeal bond in the sum of $350.00, and that same was signed and filed by the clerk of the district court.

From the foregoing proceedings L appears, that the plaintiff made no complaint of the judgment; did not appeal therefrom; and has not answered the appeal and claimed any increase in the amount of same.

The defendant and appellant filed in this court an answer to the •plaintiff’s motion to dismiss, and thereto annexed a certified copy of a notarial act of sale from the Canal & Claiborne Railroad Company to the New Orleans & Carrollton Railroad Company, of date April 1, 1899, which includes a large part of its franchises, property and avails.

Counsel for appellant submits, that on this state of the record appellee’s motion to dismiss can not be entertained — pointing out the paragraph in the act of sale, whereby the purchasing corporation specifically assumes 'the payment “of any and all final judgments which may be hereafter rendered in suits for damages and personal injuries, now pending in the courts of Louisiana, against the said Canal & Claiborne Railroad Company,” etc.

The conclusion is clear, and in our opinion undoubted, that the reasons assigned for the dismissal of the appeal are not good and can not be entertained, because the assignment by the Canal & Claiborne Railroad Company to the New Orleans & Carrollton Railroad Company, was made on the 1st of April, 1899, long prior to the trial of the cause in the District Court, and at a time when that information was perfectly accessible to the plaintiff and appellee. He is, therefore, conclusively presumed to have been satisfied with that situation of affairs when this case was tried and decided in his favor.

Notion to dismiss appeal denied.

On the Merits.

The opinion of the court was delivered by

Breaux, J.

Plaintiff, wliose occupation is that of a cart driver, brought this action to recover damages for injuries he alleged he received in alighting from a street ear owned and run by the defendant. He avers, that he is a cripple and can not walk straight; that on the 29th of November, 1898, at about six o’clock in the morning, he got on one of the cars of the defendant at the corner of Carrollton and Tulane avenues, and that as he was about to alight from the car at the corner of Tulane avenue and Yillere street, but before he could descend from the car, the conductor gave the usual signal, and the motorneer hurriedly started the ear, and thereby caused him, petitioner, to fall and injure himself on the head and body; that he lost time, in consequence, and another man was employed in his place while he was ill and suffering too much to return to his work.

Defendant answering, alleges that if plaintiff was injured by its ears, the accident was due to his fault, and it denies all liability.

The witnesses contradict each other, and for that reason, it is difficult to determine with certainty what are the facts of the case. The plaintiff, as a witness, says that the car on which he was riding did not stop long enough for him to alight; that by the sudden start, he was thrown six or seven feet on his head; and that the conductor was inside the ear at the time.

One of the fellow-passengers of the plaintiff was examined as a witness. He knew nothing of the asserted fall in which plaintiff claims to have suffp~ed injury. There were two men, employees at the Charity Hosph^j., who saw plaintiff lying in the street. They helped him np, and brought him to the Hospital. When he was on the ground, he was between the banquette in front of the Hospital and the first track, at or near the stopping place of the car. They, however, knew nothing of any accident. They saw plaintiff on the ground, picked him up, and brought him to the place just mentioned. The physician who dressed his wound said that it was only a slight incised wound on the temple, and that he was not seriously hurt.

The conductor of the car says that plaintiff, as a passenger was very imprudent; that on other days when plaintiff was a passenger, he warned him not to jump off when the car was in motion; that the morning plaintiff says he fell off, he jumped off (quoting from the testimony) “while I was collecting a fare from a passenger in the third seat. A lady got on, and a .lady was ready to get off the car, and I rang two bells to go ahead, and I saw this man walking, and the man who works at' the power house was there on the back platform, and he said ‘all right,’ ” and the witness gave the'usual signal to the motorneer to go ahead with the car. The name of the man to whom witness refers was Smith, an employee of the defendant at its powerhouse. He was a passenger on the platform of the car, being an employee of the defendant going to his work. He was called as, a witness, and testified to a different state of facts. The conductor,- he says, was standing near him on the platform, and he did not, as the conductor said, make a áign to the conductor to go ahead. The conductor is contradicted in two important particulars by Smith. The clash of contradiction in the statements of these two witnesses, leaves very little, if anything, upon which to base a conclusion favorable to the defendant. The conductor either lost his temper while testifying, or his want- of concern for this passenger on his car at the time of the accident rendered him inaccurate in testifying about the facts. We take it that the place of the conductor is on the platform when the car stops to enable passengers to alight. If he is called away at the time, he should be able, in case of an accident, to account for his absence. In this he failed.

It is unquestionably true that the plaintiff was injured, and that he was picked up at a place of alighting on his way to the place where be worked. He bas given a straight account of the accident, while that of the witnesses for the defendant is by no means convincing. After having given the matter our earnest attention, we conclude that the judgment should remain undisturbed.

There is a presumption sustaining every judgment until it becomes evident that the judge a quo has erred. Our study of the case has not convinced us that he has erred.

Plaintiff filed an answer in which he asked for an increase of the amount of the judgment. As the injuries were not severe, the judgment allowing one hundred dollars damage, we think, is enough, and, therefore, we affirm it.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed.


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 13,379.
    Lewis Oliff et al. vs. The City of Shreveport et al.
    Syllabus.
    1. Though a railroad be a “highway” it is not a “public road” In the sense that the general public have the legal right to pass at will along its right of way. A bridge built by a railroad corporation on its line of way, over a navigable stream, is not open to travel over it by the general public, though it may have been constructed in such a manner as to admit of the same.
    2. Where the common council of a city and the police jury of a parish authorized to establish ferries, regulate tolls and divide revenues, entered into an agreement with a railroad corporation, whereby, in consideration of the former paying the increased cost of construction, and binding themselves to • pay a certain fixed proportion of cost of police maintenance and reconstruction in the future of a bridge which the railroad company proposed to build over a navigable river, the latter would construct the same in such a manner as to adapt it as a roadway for vehicles and passengers, and the former should have the right of using the roadway as a bridge ferry over the river, the parties to such an agreement did not thereby become Joint-owners of the bridge. The railroad corporation remained the owner of the bridge in ’entirety, subject to a partial use of the bridge under the terms and conditions of the contract.
    3. Where in such a contract the railroad company consented to receive payment of the amounts due to it from tolls to be collected by the city and parish for-crossing the bridge, the right of the latter to collect such tolls is not held under a derivative right under the contract from the railroad company, but by virtue of their grant of right to establish ferries and regulate tolls.

      4. Á contract of the character stated is subject to be ended by a judicial decree for non-compliance with its terms and conditions, or by the common consent of the city, the parish and the railroad company. The bridge is not under such a contract dedicated to public use in the legal sense of that word, but is held and occupied under special, contractual relations between the parties.
    5. There is inconsistency in a claim of right on the part of citizens to cross a bridge held under such circumstances by a city and parish, and a denial by them of the authority of the latter to enter into the contract by virtue of which alone the right to cross was obtained. They can -not claim benefits under a contract and repudiate the authority of the person under whom they claim to have made it.
    6. A clause in the contract that the city and parish would reduce the toils yearly to the extent of one-tenth does not confer upon the general public a vested right to insist that such reduction should be made.
    The clause evidences a reserved right by the city and parish to reduce the tolls and not a self-assumed obligation as a stipulation pour autrni in favor of the public. So far as the public was concerned it was expressive of mere intent. Civil Code, 1814.
    The matter being dealt with under general administrative powers was subject to such action as the public authorities would deem judicious and best.
    7. Where a city and a parish are authorized by the General Assembly to establish ferries -and regulate tolls, courts will not undertake,' at the instance of private individuals, to fix any limit to the amount which the authorities may exact for that purpose.
    The question of the extent to which this right may be exercised is purely administrative. First Municipality vs. Pease, 2nd Ann., 538; Transportation Co. vs. Parkersburg, 107 U. S„ 691.
    Particularly is this the case when pending an action for this purpose, the General .Assembly has referred that question for decision to a vote of the people of the localities.
    APPEAL from the First Judicial District, Parish of Caddo.— Land, J.

      T. F. Bell and Thomas O. Barret for Plaintiff, Appellee.

      A. E. Leonard and E. E. Randolph for City of Shreveport, Defendant, Appellant.

      A. J. Murff, (J. A. Snider, of Counsel); for Bossier Parish, Defendant, Appellant.
   The opinion of the court was delivered by

Nicholls, C. J.

This suit was instituted by Lewis Oliff, W. C. Vance and Tames M. Foster, averring themselves to be individually and severally, property holders and taxpayers to the City of Shreveport, and averring, also, that each of them had likewise large business interests in the Parish of Bossier.

In (heir petition they represented that they, in attending to their business interests in Shreveport and Bossier Parish, had need frequently to pass over the bridge constructed across the Red river at a point in the corporate limits of the City of Shreveport.

That the bridge was constructed by the Vicksburg, Shreveport and Pacific Railway Company, in conjunction with the City of Shreveport and Bossier Parish, under and by virtue of the agreement embodied in the following ordinance of the City of Shreveport, to-'wit:

“Be it ordained by the Council of the City of Shreveport, in legal assembly convened, that the City of Shreveport, in the State of Louisiana, in connection with .the police jury of the Parish of Bossier, State of Louisiana, desiring that the bridge crossing Red river, at Shreveport, to be built by the Vicksburg, Shreveport and Pacific Railroad Company, shall be made available for the passage of road wagons and foot passengers, make, and enter into the following agreement, with Otto Plock, president of said railroad company, to-wit:
“1. The said City of Shreveport, and Parish of Bossier, party of the first part, will pay unto said railway company, party of the second part, seven per centum-per annum interest on the increased cost of constructing said bridge, so as to make the same available for road vehicles and foot passengers, including in said cost the cost of all structural additions which may be necessary to make saiil bridge so available; this payment shall be made semi-annually, and the same shall be due to the party of the second part by the party of the first part, for each and every year of the duration of this agreement. This agreement shall operate perpetually, and the bridge shall forever be used for the. passage of road vehicles and foot passengers.
“2. Said party .of the second part shall undertake and be responsible for the maintenance of the said bridge and approaches thereto in first-class order and condition at all times. The expenses incurred by such maintenance and inspection of said bridge shall be charged to the party of the first part, and the party of the second part, respectively, in proportion to the nature of the work, and said party of the second part shall furnish to the said party of the first part, monthly, an itemized statement showing details of the sums chargeable to said party of the first part.
“3. That in the matter of painting said bridge, the expenses thereof shall be pro rated between and paid by the parties hereto, respectively, in proportion to the increased cost entailed by the requirements by the said party, of the first part. Such cost of painting shall be charged to the said party of the first part, upon a certified voucher therefor, and the payment thereof by said first party, under the agreement, shall be made in twelve equal' consecutive monthly installments, the balance not bearing interest.
“4. 'That said party of the first part shall pay a proportion of the taxes and insurance payable on said bridge, and the approaches thereto, in accordance with the relative costs of the bridge, as originally designed by said party of the second part, and the cost of said bridge, as now desired by said party of the first part.
“5. That the tolls shall be collected by, and be received by, said party of the first part, and it shall be obligatory upon said first party that the revenues arising from the collection of said tolls shall, after all deductions properly chargeable thereto for expenditures by the said party under this agreement shall have been made, be applied to a reduction of the ferry tolls for the ensuing year, and that said reduction shall be at the rate of ten per centum from the existing rates, and at a rate not exceeding ten per centum for each succeeding year upon the rates charged during each preceding year. It is further agreed that the surplus revenues accruing, under this agreement, shall not be applied to any other purpose than the reduction of the ferry tolls, and the extinguishment of the debt for the construction of said bridge.
“6. That the said party of the first part shall undertake the full responsibility for collecting the tolls, and the said party of the first part shall maintain and keep all vehicles and foot passengers off the bridge on the approach of trains, and also at any time when the second party's bridge tender shall advise said guard or guards that the' load-way and footway must be closed either for railroad purposes or for the passage of boats, said guard or guards Jiall work in unison with the said bridge tender, and in accordance with his requirements. Said guard or guards shall also obey and carry out the general and special instructions and rules prescribed by said second party so far as the duties attending the working of draw and other bridges are concerned. “7. That the said party of the first part will take immediate action, at the request of the party of the second part, in all matters of irregularity on the part of their guard or guards.
“8. That the trains and locomotives of the said party of the second part shall, at all times, have precedence of all other vehicles or passenger traffic.
“9. That, as regards the existing ferry, the said party of the first part undertakes, on and from the opening of the said bridge, to abandon forever all rights to institute a ferry, or lease ferry privileges, and will undertake to assist and protect said party of the second part in any matter of claim, or any legal action, which may arise under the abandonment of said ferry privileges.
“10. That the said party of the first part hereby undertakes to do and perform any and every act which may be necessary to remove any obstacles which may be interposed with a view to impede the construction of a bridge across the Red river, as designed by the said party of the second part, and agrees to do whatever structural or other work may be necessary to provide as good facilities as now exist, for the furtherance of business other than that of said party of the second part.
“11. That the said party of the first part will take whatever action may be necessary to give legal form and strength to this agreement, and will pass the necessary ordinances and regulations therefor.
“12. That should any fault arise on the part of the party of the first part in paying the sum due to the party of the second part, then, within sixty (60) days after the date of sending in the monthly statement of accounts, as heretofore described, the said party of the second part shall have the right to step in and appropriate to its own uses and purposes the tolls chargeable for the passage of road vehicles and foot passengers over the bridge, and the right so to do is hereby expressly surrendered to the said party of the second part, by the said party of the first part, in eases of default in said payments or any of them by the said party of the first part. If, however, after the party of the second part has made avail of the foregoing conditions and possessed itself of the right to collect and’take possession of the tolls, it shall be the privilege of the party of the first part to give ten days notice of its intention and ability, and to pay up all the arrears due, to which «TinU be added interest at the rate of ten per centum, per annum, of the amount of said arrears, and after such notice has been given to the party of the second part, and the sum of money due properly tendered to said party of the second part, then shall the party of the first part be entitled to enter upon the collection and possession of the tolls, with the obligation of observing the conditions of this agreement, as hereinbefore expressed, the same as if no default had been made.
“13. It shall be the privilege of the party of the first part to pay the party of the second part the sum incurred by the party of the second part, in consequence of the requirements of the party- of the first part, at any time, and after such payment shall have been made then shall the party of the first part be only bound to pay, in proportionate, part of the expense of repairing the roadway and approaches of the bridge.”

They aver that the said bridge was completed and opened to traffic in July, 1884 — that R. N. McKellar is -the duly elected and acting Mayor of the said City of Shreveport, a municipal corporation, chartered under the acts of the Legislature of 1878; that, since the completion of said bridge, the said City of Shreveport, and said Parish of Bossier, have levied and collected a toll from foo-t, horse, and vehicle passengers, over said bridge, according to the following schedule of rates, to-wit:

For each vehicle and driver of 6 animals ................50 cents

For each vehicle and driver of 5 animals..................45 cents

For each vehicle and driver of 4 animals..................40 cents

For each vehicle and driver of 3 animals..................35 cents

For each vehicle and driver of 2 animals..................30 cents

For each vehicle and driver of 1 animal............'......20 cents

For each animal and rider................................10 cents

For each person on foot or passenger in vehicle............05 cents

For each head of loose cattle, horses or mules..............05 cents

For each head of other loose stock........................05 cents

—that said schedule of toll thus levied and collected remained unchanged until the year when another schedule of rates was adopted and enforced, which said last mentioned rates of toll remains to this day without further changes or reduction, but the same are still being daily exacted and collected from all persons passing over said bridge; that the toll thus collected under the first schedule of toll rates, amounted to twenty-five thousand- ($25,000.00) dollars annually, and that under the last named schedule, above referred to, amounted to $20,000.00 annually that from the beginning' of-the collection of tolls, as aforesaid, to the present time, the said City of Shreveport has received for, its share of said collections the full sum of one hundred and fifty thousand dollars ($150,000.00), which said sum has been received by tlie said City of Shreveport, and passed into its treasury, to the credit of the bridge fund; that the portion of the price of constructing ■said bridge, which said city agreed ito pay, as set forth in the ordinance above mentioned, was fully paid from its tolls collected under, and by virtue -of, said ordinance before the year 1888; that since the completion of the payment of the price of construction by the said City of Shreveport, as above referred to, said eiity has collected from the tolls exacted from passengers over said bridge the full sum of -one hundred thousand dollars ($100,000.00), which said sum is -an ample fund to pay said city’s share of repairs, etc., for all time, and of which said sum petitioners have paid as toll collected from them, as passengers over said bridge, more than two thousand dollars annually, and are still paying said sum, though under protest; that said City of Shreveport never had, alt any time, any lawful warrant or authority for collecting any toll whatever from persons passing over said bridge, and that all such exactions are unlawful, and impose on petitioners, and all persons passing over said bridge, a tax for which exists no warrant of law; that said bridge is a public highway, and the public has a right to use it; that the right to collect tolls for passage over public highways belongs exclusively to the State; that municipal corporations have no power or right to exact such tolls without express legislative authority, and that no such power has ever been delegated by the State to the City of Shreveport; that the collection of said tolls is restrictive of, and injurious to, the City of Shreveport, in which petitioners are taxpayers, and in the growth and trade of which petitioners in common, with other taxpayers of said city, have an interest.

That if the ordinance of the City of ‘ Shreveport constituted any lawful authority for the collections of tolls over said bridge, which petitioners deny, that the tolls, as at present collected, are in excess of the authority granted in said ordinance, and to that extent unlawful, and without proper warrant of law.

That the furthei collections oi said toll, in imposing oil petitioners an unlawful exaction of money for the privilege of passing over said bridge, which is a public highway, is an unwarranted obstruction of said public highway, injurious to the rights of petitioners and all other taxpayers of said City of Shreveport, and that to prevent the further collection of said tolls, a writ of injunction is necessary.

In view of the premises they prayed a writ of injunction issue, restraining the said City of Shreveport from the further collection of any tolls whatever from petitioners or any other persons passing over said bridge, upon themselves, animals or vehicles, and that said City of Shreveport be duly cited, and that on final hearing petitioners have judgment making said writ of injunction perpetual, and prohibiting said City of Shreveport from any further collection of said tolls.

They prayed for all orders needed in the premises, for costs, and foi general relief.

Upon reading this petition the court ordered the defendant to show cause why the order prayed for should not be granted.

The defendant, appearing solely in answer to the rule nisi, and reserving all exceptions and defenses to be made thereafter, showed as reasons why the preliminary injunction prayed for should not be granted:

1. That it appeared that the suit involved the rights of other parties, (defendant) who had not been joined therein.

2. That the petition showed no cause of action.

3. That even if proper parties were impleaded, and a prima facie cause of action appeared, no cause was shown for the preliminary injunction.

Denying that its action in the matter complained of was in any way contrary to law, defendant prayed to be dismissed from the rule nisi, and that all its rights to áppear in the future in excepting to, or answering the suit, bé reserved, and for general relief. Without prejudice to the exceptions theretofore made, and under reservation of all legal rights, defendant answered.

After pleading the general issue, the city admitted that it was collecting tolls from those using the bridge across the Red river, at Shreveport, constructed by the Vicksburg, Shreveport and Pacific Railroad Company, and averred that tolls so collected were collected under authority of law, and in accordance with ordinance of the City of Shreveport, legally enacted. That such tolls were reasonable and just, and necessary for the maintenance of said bridge. ;

It prayed that plaintiffs’ demand be rejected and their , suit dismissed.

The District Court sustained the exception of non-joinder, with leave to plaintiffs to amend, and make the Parish of Bossier, and the Yicksburg, Shreveport and Pacific Railroad Company parties defendant.

Lewis Oliff and W. C. Yance having- died, Mrs. Jennie Oliff, as, universal legatee and heir of Lewis Oliff, and Mrs., Nina Yance, Widow W. O. Yance, Larry W. Yance, and Miss Estelle Vancq, daughter of W. C. Yance, as widow in community, and heirs of W. C. Vance, made themselves parties to the suit and, joining with James M. Foster, filed therein an amended petition in which, after adopting and reiterating- the allegations of the original petition, they further averred that the Parish of Bossier joined with..said City of Shreveport, and said Railway Company, in the construction of the bridge across Red river, referred to in original petition, under and by virtue of the agreement embodied in an ordinance, regularly passed by the police jury, of said Parish of Bossier, a duly certified copy of which said ordinance was filed; that said Railway Company agreed to the-contracts embodied in the two ordinances passed and adopted by the said City of Shreveport, and said Bossier Parish, respectively; that since the beginning of collection of the tolls, as set forth in their original petition, Ithe Parish of Bossier had received with the City of Shreveport an equal share of the tolls collected, and continued to the present time thus to receive its equal share of said tolls; that the portion of ithe price of construction of the said bridge which the City of Shreveport and the Parish of Bossier agreed to pay, as set forth in the> ordinance embodying the contract, was fully paid from the tolls collected under and by virtue of an ordinance before the year 1888 that the said Parish of Bossier was, at Ithe time of entering into the contract, embodied in the said ordinance, and still was, without any authority, in law, to make or enter into any such contract, and further, that if the said ordinance passed by ithe Police Jury of said Parish of Bossier, constituted any lawful authority for the collection of tolls for passing over said bridge, averred that the tolls, as at present collected, were in excess of the authority granted in said ordinance, and to that extent unlawful and without any proper warrant; that said Railway Company had no authority to establish a toll bridge such as that contracted for in the ordinances adopted by >the City of Shreveport and the Parish of Bossier, referred to; that if the contracting parties had any authority to construct and establish the toll bridge provided for in aforesaid ordinance, it was plainly the intent of said contracting parties, as shown by their contract, embodied in said ordinance, 'that the toll should be progressively reduced until said bridge should be practically free from tolls, and in conformity with that intention, the Parish of Bossier did declare in favor of abolishing the tolls and withdrew from the parish end of said bridge the toll collector, and for the space of some weeks refrained from the collection of toll for crossing said bridge; 'that the City of Shreveport, and the Parish of Bossier, still persisted in collecting toll from parties crossing over said bridge according to the rates, or schedule, fixed in their original contract, as embodied in the two ordinances aforenamed, notwithstanding they had collected in excess of the price of construction and maintenance, all of which had long been paid, a large sum equal to at least $100,000, a sum sufficient to maintain all needed repairs on said bridge for all time, and that a writ of injunction was necessary to restrain the further collection of tolls.

In view of the premises, they prayed for a writ of injunction to issue, restraining the Parish of Bossier and said Railway Company from any further collection of tolls from parties passing over said bridge, and that the Parish of Bossier and said Railway Company be cited, and on final hearing petitioners have judgment making said writ of injunction perpetual, and prohibiting ifchem from any further collection of tolls’ for passing over said bridge.

They prayed for all orders needed in the premises, for all costs of suit, and for general relief.

The Parish of Bossier excepted to the jurisdiction of the court, but the exception was overruled. It then filed a motion praying that the court order the plaintiff's to elect whethér they sue to annul the contract or to enforce the same, and that on failure so to do, the suit be dismissed, urging that the demands were inconsistent and contradictory.

The Vicksburg, Shreveport, and Pacific Railway Co., answered. After pleading the general issue, it admitted that the City of Shreveport, and the parish of Bossier, entered into a contract attached to the petition with respondent, and that its co-defendants complied with their obligations thereunder, to a period as alleged, when the enhanced cost of the structure, resulting from the change of plan necessary to carry into effect the purposes of the contract, was reimbursed to respondent, as far as demanded.

That since that time, respondent had tacitly acquiesced in the appropriation by the city of Shreveport and the parish of Bossier, of the surplus revenues arising from the tolls on the bridge, after meeting their obligations to share in the cost of maintenance and reconstruction of the bridge, as far as demanded by respondent; and while it might be true, that its co-defendants may have appropriated the surplus revenues, to other purposes than that fixed in the contract, not having any special interest in the enforcement of this provision, and being unwilling to appear as an obstruction to public improvements, iit had acquiesced as aforesaid; that under the terms of the contract it would be impracticable to abolish tolls altogether, as the current liability of the city of Shreveport, and the parish of Bossier,- for the care, maintenance, and renewals of the bridge, amounted annually to more than two thousand ($2,000) dollars, which under the contract, they had a right to reimburse respondent, out of the surplus tolls, besides their contribution to the reconstruction of the span destroyed some time since, and which was then in course of erection and being replaced, which would amount to about three thousand ($3,000) dollars.

That should the bridge be declared free to the public, it would destroy the means of the city and parish provided for its share of the maintenance, taxes, etc., and would result in serious inconvenience to respondent, by crowding the bridge with onerous and unlimited traffic, and hinder its efficient use by respondent, in the operation of its trains; that while the tolls on the bridge might be reduced largely, for the reasons stated, it would impair the contract to make the bridge absolutely free to the public, and would therefore work an injustice to all the parties to the contract.

In view of the premises respondent prayed that the demand for an injunction be denied, and that there be judgement in its favor for costs, etc. But in the event 'that the court undertook equitably to adjust the tolls, on the said bridge, under the contract, that the same be not so much reduced as to destroy the means provided for in the contract, by which its co-defendants might discharge their obligations, to respondent.

The Parish of Bossier answered. After pleading' the general issue, it admitted the contract with the Vicksburg, Shreveport and Pacific Railway Company, and that that parish and the city of Shreveport, were collecting tolls over the bridge mentioned in plainltiff’s petition, and it averred their right and power to make said contract, and collect said'tolls.

It excepted that plaintiff’s petition disclosed no cause of action, and specially denied that plaintiffs, private individuals, had the right to bring the suit, as they were not privy to the contract, nor had they the right to enforce the same. It prayed that the suit be dismissed.

The city of Shreveport filed exceptions- — ■

1. That the plaintiffs’ petition disclosed no cause of action.

2. That plaintiffs, private individuals, alleging the usurpation by the city of Shreveport and parish of Bossier, of a public franchise or power, in which they, plaintiffs, had no interesit, except as they might have in common with the public, and by which they were not affected, except áo far as they might he affected in common with the public, had no right, or legal cause to complain of such alleged usurpation, which could be controlled or prevented only by action of the Sítate.

3. That the State and the plaintiffs had acquiesced in and recognized the right and power of the city and parish aforesaid, to collect and exact tolls for crossing the bridge specified in plaintiffs’ petition, for and during a period of more than thirteen years, and by such long acquiescence in, and recognition of, the right of said city and parish to collect tolls as aforesaid, both the State and plaintiffs were barred from maintaining any action, having for its object, the deprivation of the franchise or power, so acquiesced in, and recognized.

It prayed that the action be dismissed.

The following admissions were made by the parties—

“1st.. It is admitted — That plaintiffs are large tax payers in both Bossier and Caddo parish, and in attending to their business interests as plantérs and brick manufacturers, have need to frequently pass over the bridge, and pay tolls annually amounting to $

2. That the Red river bridge was constructed and built by the V., S. & P. R. R. Co., under the agreement with defendant city and Bossier parish, set up in petition, as shown by ordinances of city and parish, and was completed and opened to traffic in June, 1884, which agreement and ordinances have been amended and modified, as shown by ordinance of city June 17, 1892, pp. 133-4, City Ordinances.

3. That tolls were charged for the use of said bridge, ■ from said opening to -, according to schedule of rates set forth in petition, and from-, to this date, ás per this schedule, and that the collectors of said tolls, are agents and employees of the defendant city and Bossier parish, and that they exacted tolls from plaintiffs and others, passing over the bridge, according to said schedule, both night and day, in accordance with ordinances of the city and parish duly adopted.

4. That annual tolls amounted to $-- under first schedule, and $-under second schedule, were collected by said city and parish.

5. That the portion of the price of constructing said bridge, assumed by said defendants (1-7) was (fully) paid in January, 1888, out of tolls already collected.

6. That since that time tolls have been collected to the amount of $-, which has been.equally divided between the defendants, city and parish. But that all funds arising from such tolls remaining after the necessary amounts for bridge purposes were used for bridge purposes, were appropriated and disbursed by said city and parish for internal improvements, as per receipts and disbursements admitted. (Subject to objection by plaintiffs as to admissibility.)

7. It is admitted for purposes of trial of this case, that plaintiffs, if present, would testify that they pay an annual aggregate in tolls in passing over the bridge, amounting to $2100.00, and that their use of it is for legitimate and usual purposes, and in due course of their business as planters and brick manufacturers.

8. That Red river is a navigable stream.

9. That the bridge as constructed, constitutes the only passage way for foot, vehicles, and horse travel, from east of Red river to Shreveport, and that it connects the important highways on the east and west of Red river.

10. That there are no ferries operated across Red river, at or near Shreveport, and have not been, since the completion of the bridge so built by the railroad company.

11. It is admitted the expenses incurred in employment of collectors, providing houses for them, sweeping and cleaning bridge, compensation of officers of city and parish charged with duty of making monthly settlements with collectors, and other incidental expenses, aggregate $2300 annually.

The District Court rendered' judgment, by which it was ordered, adjudged and decreed that the city of Shreveport, and the parish of Bossier, and the Vicksburg, Shreveport and Pacific Railway Company be enjoined and restrained from collecting any greater amount of tolls for passage on the bridge of said railroad at Shreveport, than might be necessary to maintain the same, pursuant to the original and supplemental contracts, made between said city and parish and said railway company, and thalt defendants pay all costs.

The parish of Bossier and city of Shreveport appealed.

Appellees prayed in the Supreme Court that the judgment appealed from be amended so as “to restrain the defendants and appellants from exacting any tolls whatever for foot, horse, or vehicle transit over the bridge mentioned in the suit”.

Opinion.

The plaintiffs in this suit are residents of the city of Shreveport, and the parish of Bossier, who, having large property interests therein, have been compelled for years past, and will be obliged in the future, to pay large amounts of money for the crossing of their carts, wagons, and vehicles, and employees over Red river, at and opposite the city of Shreveport.

At one time the crossing at this point was by means of boats, but since 1884 it has been over a bridge,' built across that stream, by the Vicksburg, Shreveport and Pacific Railroad Company.

That corporation was incorporated by an Act of the General Assembly of Louisiana, approved March 11-th, 1852, and it was given authority in the 12th section of the Act, to do everything necessary for the construction, repair, and maintaining of -the railroad * * * to determine the location of said road between a point opposite Vicksburg, on the Mississippi river, by way of Monroe, on the Ouachita river, and Shreveport on Red river, thence west to Texas, and to make and construct all works whatsoever, which they might deem necessary.

Under the right so conferred upon it, the company constructed the bridge across Red river, which has just been referred to, and it was thrown open for traffic in 1884.

Congress by Act of March the second, ratified the building of the bridge.

Prior to the construction of the bridge, the authorities of the city of Shreveport, and of the parish of Bossier, conceived the idea of substituting for the ferry crossing, then existing at Shreveport, a bridge crossing, by utilizing the railroad bridge, about to be built.

At that time the police juries of the different parishes had been given, by the ninth clause of Section 2743 of the Revised Statutes, the exclusive privilege of establishing ferries and toll bridges, within their respective limits, and of fixing the rates of ferriage and toll to be charged, and by the seventh section of Act No. 25 of 1878, incorporating the city of Shreveport, it was given the power to establish, and regulate, all market places, and to farm out the same, and jointly with the parish of Bossier, to let out the ferry or ferries across Red river, within the limits of said city, the revenues from the same to be equally divided between the city and the parish of Bossier.

In pursuance of the plan of making use of the railroad bridge, negotiations took place, between the local authorities and the railroad company, which culminated in the contract between the city of Shreveport, the parish of Bossier, and the Vicksburg, Shreveport and Pacific Railroad Company, recited in plaintiffs’ petition, by which the bridge was so constructed, as to be made available not only for railroad, but also for ferry purposes.

This fact carried with it an increased cost for the original building of the bridge, and involved future outlays for its maintenance and repairs.

The authorities bound themselves by certain obligations, specified in the contract, in consideration of which, the railroad company conveyed to the other contracting parties, a right of way for horses, ver hides, and passengers over its bridge.

Among the obligations assumed by the city of Shreveport, and the parish of Bossier, was the payment by them to the railroad company of certain amounts of money, to reimburse with interest the railroad company for the increased cost of construction of bridge, which they were to raise by means of toll for crossing.

In the event the city and parish should default in this payment, the railroad company was authorized to take charge of the collection of the tolls, and apply them to the payment of their claim and interest.

The fifth clause of the contract between the parties declared “that the tolls should (shall) be collected and be received by the party of the first part (the city of Shreveport and parish of Bossier), and it shall be obligatory upon said first party, that the revenues arising from the collections of said tolls, shall after all deductions properly chargeable thereto for expenditures, by the said party under this agreement, shall have been made, be applied to a reduction of the ferry tolls for the ensuing year, and that said reduction shall be at the rate of ten per centum, from the existing rates, and at a rate not exceeding ten per centum for each succeeding year, upon the rates charged during each preceding year, and it is further agreed that the surplus revenues accruing- under this agreement shall not be applied to any other purpose than the reduction of the ferry tolls, and the extinguishment of the debt for the construction- of said bridge.”

By the second clause of the contract, the railroad company undertook to be .responsible for the maintenance of the bridge and the approaches -thereto, in first class order and condition, at all times, and that the expenses incurred by such maintenance and inspection, should be charged between the city and parish, and the company respectively, in proportion to the nature of the work.

A supplemental contract was made in June, 1892, between the parties in which, after reciting the first contract, and that disagreements had arisen between the parties, as to the duties and obligations of each to the other, especially as to the construction of sections 2 and 13 of the contract, and reciting'that a disastrous rise of Bed river had destroyed the eastern abutment span of the bridge, necessitating the building of a temporary span for the same,' for present use, and in the' early .future, a permanent span of similar character to the original structure, which would necessarily be much longer than the original, by reason of the caving bank -of the river, and reciting that it was apparent that extensive works would be necessary to prevent the recurrence of the danger to the structure, it was declared that for the purpose of fixing the relative duties and obligation of the parties to each other, and especially the eonslfcruction which would be thereafter given to sections 2- and 13 of the original contract, and to provide for the discharge of the obligations of the parties to each other as to the construction, maintenance, reconstruction and repair of the bridge and all works necessary for the protection and preservation of the structure by the railroad company, as well as the duty of the city and parish to reimburse the railroad company their portion of the expense incurred and to be incurred in the performance of its obligations, that it should be the duty of the party of the first part (the city and parish) to pay with interest one-seventh of the cost of repair, maintenance, construction and reconstruction of the general work, common to the general use of the same; that the railroad company should pay alone for those portions of the work, whether in construction, repair or maintenance of same, which may be for the exclusive use' of the railroad, and the city and parish should pay to the railroad company all expenses incurred by it, in the construction, repair; reconstruction, maintenance and preservation of those portions of the bridge and its approaches and fixtures which are for the exclusive use of the bridge as a wagon bridge and designed and intended to promote its use as such.

After the construction of the bridge, a schedule of tolls was fixed, which was replaced later, by a reduced tariff, which was still in force, when the present suit was instituted.

The original cost of construction has long since been paid and the tolls collected (less expense of maintenance) have been for a number of years past, a source of revenue and applied by the city and parish for general parish and city purposes.

It was under this condition of things that this action was brought, upon the grounds set forth in the petition.

After the case was at issue the General Assembly by Act No. 158 of 1898, provided a new charter for the city of Shreveport.

The seventh section of that charter reads as follows:

“To establish and regulate all market places and to farm out same; and jointly with the parish of Bossier let out the ferry or ferries across Red river within the limits of said city; the revenues from the same to be equally divided between the city and parish of Bossier.”
This clause of the old charter of 1878 is retained literally to the end that the rights of litigants or their associates in suit of Vance, Oliff, et als. vs. City of Shreveport, now pending on the District Court, Caddo parish, may not be effected, but tried under the law as it existed at the institution of said suit, and without reference to this Act, and until its final determination oh the merits and until the election hereinafter provided for is held and its results ascertained definitely deciding the issues, pending said suit, tolls on the bridge over Red river to continue; provided that within sixty days after the final determination of said suit the right of the city of Shreveport to fix and regulate tolls on the present bridge over Red river in conjunction with Bossier parish shall be submitted to an election by the qualified electors' within the new territorial limits of said city, which election it is hereby made mandatory on the Mayor to call.
“And at the same eleeton shall be submitted the question as to whether the said bridge shall be free for the use of the public or a pay bridge, and if a pay bridge, whether the schedule of tolls shall be for revenue or whether they shall be simply for maintenance of said bridge or the city’s interest therein; and the said election shall not be decisive until one of these propositions has received a majority vote, and if the proposition for simple maintenance fund shall be decided upon then the said city is to collect no more than is needed to carry out that decision and shall not divert nor use said fund for any other purpose under penalty of the forfeiture of the grant. If the proposition to make said bridge a pay bridge for revenue prevails the council will nevertheless have the authority to make it free at any time, temporarily or otherwise. If the free bridge proposition prevails, then no toll at all is to be charged.
“The commissioners at said election shall be appointed by the District Court of Caddo parish from advocates of the three different propositions as near as possible, and polling place in each ward of the city. The intention being to legalize whatever is decided upon by the qualified electors of the said city of Shreveport at said election or elections, and if a majority of said electors favor a pay bridge, either for maintenance or revenue, the power Ifco exercise such grant is hereby conferred. Three sets of ballots shall be provided so as to embrace the three propositions heroin embraced.”

The first question which we meet in the investigation of this case, is the exception taken by the parish of Bossier, to the jurisdiction over it of the District Court for the parish of Caddo.

The court is referred to State ex rel. Nelson vs. Fournet, 30 Ann., 1104, as establishing the incorrectness of the ruling of the District, Court of that parish.in exercising jurisdiction.

If the parish of Bossier had had no connection with the parish of Caddo, and had been proceeded against alone, we think the action against it should have been brought in Bossier, but occupying as it did, the position of one of the parties to a joint contract, in which all parties thereto are concerned in, a suit involving rights springing from the contract, we think the parish of Bossier was properly made a party to the litigation, at the instance of the city of Shreveport, and ex necessitate called into the parish of Caddo. ITennen’s Digest, pago 351, No. 2; 8 La., 524; 3 Rob., 26; 3 Ann., 43; 5 Ann., 674-740; Francis vs. Laonie, 21 Ann., 265; Lobdell vs. Bushnell, 24 Ann., 297.)

The plaintiffs contend that the city of Shreveport and the parish of Bossier, under a power to establish and lease ferries, and receive revenues therefrom, were without power or capacity to build a bridge, or establish a toll charge upon a bridge; that action to that effect was net •only ultra vires and not binding upon any one, but on the contrary an illegal obstruction upon what they claim to be a public highway, in the nature of a nuisance, which those who have constant occasion to cross Red river, with their teams and employees, have the legal right to have abated by injunction.

The bridge over the Red river at Shreveport was not built by the city of Shreveport, or the parish of Bossier, or by both, but by the Vicksburg, Shreveport and Pacific Railroad Company.

There can be no serious question raised as to its being a construction over the Red river, placed there by legal authority.

The question of the authority of the city of Shreveport, and the parish of Bossier, to build a bridge, over the river, is entirely outside of the ease.

When the railroad company built the bridge, it became corporation property, to be used by it for railroad purposes.

It is a mistake to say that the bridge became a highway, in the sense of being thrown open to the use of the general public, without the consent of the railroad company.

From one standpoint, that is to say, from the use to be made of it, by the corporation owning it, for a public purpose, it might be considered public property, but in respect to rights of ownership, and power of controlling the possession of the same, free from the intrusion of parties going upon the same, without permission of the owner, it is private property.

The contract which the owner of this particular bridge made with the City of Shreveport, and Parish of Bossier, by which the latter bound themselves to contribute to a portion of the price, did not throw the latter into the relation of joint owners with the Railroad Company, nor did that contract carry with it, as a result, the dedication of the bridge to public use, in any proper sense of that word.

The relations of the city and parish with the Railroad Company were, at their origin, contractual relations, such they are now, and such they must remain until the contract be set aside in some legal way. , a

If any private individual should cross the bridge during the pendency of the contract, it would be by virtue of and undei the contract rights which the city and parish had acquired and subordinated to the right which the latter had acquired themselves, to control the circumstances under which parties should pass upon the bridge; he would not have acquired an absolute legal right inherent in himself as a citizen to cross the.bridge ipso facto by the making by the city and parish of a contract with the Railroad Company.

If the city and the parish were to fail to carry out the continuing obligations to which they have bound themselves by their contract', the Railroad Company would be unquestionably entitled to have the contract declared ended by judicial decree, and with the ending of the contract would terminate all rights, mediate or immediate, which would have been based upon it.

Individuals would, in vain, set up any rights predicated upon mere citizenship or membership in the “general public,” and so to-day the contracting parties could, by common consent, terminate the contr'act, individual opposition to the( same to the contrary notwithstanding, unless the State, by some action of its own, had interposed its aulihority over the city and parish preventing such action.

The city and the parish could terminate the self-assumed obligations taken upon themselves by their contract, and fall back upon their right of ferry privilege, with the right of toll or ferriage thereto attached, if they thought proper.

Under such circumstances, the rates of toll would be beyond individual control, by suits at -law, and would doubtless he greater than present bridge rates.

It is obvious that it is neither the interest, nor the desire of the plaintiffs, that this should be done.

Plaintiffs, in their brief, say they do not question or complain of the building of the bridge; that they can concede to each of the defendants the authority to construct the bridge, and open it to the public. They contend that having constructed it and made it a public highway, the defendants have no right or authority for obstructing the highway by the exaction of toll.

While declaring the contract of the city and parish totally unauthorized and ultra vires, they seek to avail themselves of benefits and results which are exclusively based upon and dependent upon the continuance of the contract, which is sought to be repudiated as being without warrant of law.

If true it be, that the contract was of that character, the logical result would be that it should be made to terminate, and not that the “general public” should have acquired rights under and through it.

While it might well be that neither the City of Shreveport, nor the Parish of Bossier, would be entitled, under a grant of power, to establish ferries and charge tolls for ferriage, to build a bridge over Red river, it by no means follows that a bridge having been built by some person other than themselves having authority to build it, they would not be authorized by contract with the bridge owner, to substitute a bridge crossing for a boat crossing.

There is no parellelism, we think, between the two acts.

Public considerations enter into one act which do not in the other.

Plaintiffs assert that the Railroad Company was without authority itself to charge tolls from parties crossing their bridge, and we understand them to contend that, therefore, the city and parish could not derive any right or power, under a contract with the company, to charge toll.

The right of toll is not based by the city or parish upon having been acquired by transfer or assignment of any right to that effect held by the Railroad Corporation.

Their right is set up as an original authority from the State, not derivative from the Vicksburg, Shreveport and Pacific Railroad Company.

It is claimed by them, “that having the undoubted right to establish a ferry and collect tolls therefrom, they could, if they saw fit, in the general interest to furnish better and cheaper means of crossing the river, substitute a bridge crossing upon an existing bridge, for a ferry crossing. Their action was proper and reasonable; the public was benefited; plaintiffs did not want the re-esitablishment of the ferry; that would be an injury to them.”

Plaintiffs say in their brief:

“It is settled that bridges are of the same nature as ferries, and mere substitute for ferries. (2nd Am. & Eng. Ency. of Law, p. 540; 2 Dillon, Sec. —; Note 1, p. 881.)
“A ferry is nothing more than the continuation of a road, and as far as regards the authority of the State, does not differ from a toll bridge. 7 Am. & Eng. Eney. of Law, 941.
“Gilman vs. Philadelphia, 18 Supreme Court Reports, p. 100.
“So far as regards the authority of the State ‘a bridge and a ferry are equivalent terms. Express power to establish a ferry necessarily implies power to establish a -toll bridge.’
“Counsel contend that without legislative grant, municipal corporations are without authority to exact tolls for crossing a bridge.
That is tr.ue. It is also true that the power to exact tolls for crossing a ferry must be granted by the State.
But the power to establish a toll ferry has been granted to the city and parish, and the grant, by necessary implication, includes power to establish as a substitute for a toll ferry, a toll bridge.”

We think this contention is well founded, at least as against collateral attack by private individuals.

The city and the parish, by their contract with the Railroad, acquired such a qualified interest in the use and possession of the bridge, as to entitle them by virtue of that interest, so long as the State does not object, to require any one availing themselves _pf this right of possession and .use to cross ithe river, to pay for the same, leaving the parties to cross or not as they might think proper. (Harvey vs. Potter, 19th Ann., 264; Grant vs. Leach, 20th Ann., 333.)

Plaintiffs would have no more right to cross, without pay, upon a bridge which the city or parish had leased, than they would upon a boat which they may have leased.

We think the city and parish had authority to substitute, as they did, and under the circumstances that they did so, a bridge crossing for a ferry crossing, and to charge tolls for the crossing.

We have reached that conclusion independently of the provisions of Act No. 158 of 1898, which we will hereafter refer to.

The other question submitted to us is the demand made by plaintiffs- to have the tolls reduced to an amount not greater than an amount sufficient and necessary to maintain the bridge, based, first, upon the clause in the contract between the parties, that the tolls would be gradually and annually reduced, and next upon the ground that when the existing debts, created by-the-contract between the city and parish and the Railroad Company, were paid, it would be unreasonable and unnecessary to require any heavier toll than would suffice for the purpose just stated, and further, that the city and parish are not authorized to exact tolls for the purposes of general revenue.

It is urged that the reduction in the toll rate provided for in the contract between the city and parish and the Railroad Company was self-operative each year, and, the toll having been finally extinguished by reduction, it could not be re-established, nor could the reduction have been stayed by adverse action, as the elause in question evidenced a stipulation pour autrui in favor of the general public, which, once granted, could not be revoked or recalled.

Why the clause in the contract was inserted therein, in the terms which were employed, we do not know; we are inclined to think it was intended to evidence a reserved right, not a self-imposed obligation, for -the Railroad Company was acting exclusively in its own interest, and in no wise was authorized to act, nor did act, for the “general public.”

Unless construed as a reserved right, the elause is utterly foreign to the contract between the parties, and would, at best, amount only to a declaration of an intended line of future action, not binding as an obligation, but subject to change at any time. (C. C., 1814; 48 Ann., 1549, Board of Trustees vs. Campbell).

The city and parish in dealing with the subject matter were acting under their power of general administration, and were free to alter their course whenever, in their view of existing conditions, it was expedient for them to do so, and of this they were the judges.

Individual citizens have no vested rights in this matter, nor control over it. (Paving Company vs. Railroad Company, 49 Ann., 1611).

We Ithink it is accepted. generally as true that where the General Assembly has confided to subordinate political bodies by express delegation general powers over some express subject matter, that the action of those bodies, in dealing with these subjects, is not subject to review by the judiciary as being unreasonable, at the instance of individual citizens, and the judgment of courts substituted for that of the bodies entrusted with the duty. Municipality vs. Pease, 2nd Ann., 538; Parkersburg Transportation Co. vs. Parkersburg, 107 U. S., 691.

'We are of the opinion that if the city and parish improperly exercised their power of discretionary action over the rates of toll, or in charging tolls, the remedy for the same was with the General Assembly and not with the Districlt Court, nor with us.

We have disposed of the matter before us without consideration of Act No. 158 of 1898.

It may be Well for us to refer to that act.

We think that act recognizes, as legal and binding, the contract between the city and parish, and the Railroad Company, for whatever may he the result of the election ordered by the Legislature, to be held, the use of the bridge, for the purpose of crossing Red river, is to be continued in the future, and could only be continued under that contract.

The Legislature has simply transferred for decision by the people of Shreveport, at an election to he held in that place, instead of dealing with the question itself, whether or not the bridge over Red river should be a free or a pay bridge.

Even if this court had taken a different view of the question submitted to it, from that which it has just announced, we do not see how we could, well, by a judgment, dealing exclusively with future action, attempt to fix matters which have been expressly referred for decision by the legislative body having authority over the subject matter, to a popular vote.

Obviously the plaintiffs have no vested rights which would admit of their opposing the results of that election.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and plaintiffs’ demand is hereby rejected, and their suit dismissed.

Rehearing refused.

Blanchard, J., takes no part in the decision of this case.


author: Monroe, J.

text:
    No. 13,336.
    P. J. McMahon vs. City of New Orleans et als.
    Syllabus.
    When ¡t appears that a municipal corporation, acting through its proper officers has, in good faith, entered into a contract, with an individual, equally in good faith; that such contract has been wholly executed by such individual, and that the corporation- and its citizens at large .are in the receipt and enjoyment of the benefits" resulting therefrom, which are more than an equivalent for the consideration for which the corporation bound itself; and it also appeal's that the corporation is ready and willing to comply with its obligations under such contract, an individual citizen, who makes no 'charge of fraud, and who shows no injury to himself, or to the community, but who, on the contrary, appears to be equally benefited with his fellow-citizens, and who brings this suit only after the execution of the contract by the individual, and after the benefits of such execution have accrued and are being enjoyed, has no, standing in court to enjoin the corporation from discharging its obligations under such contract, by paying for what it has received.
    APPEAL from the Civil Dietrict Court, Parish of Orleans.— King, J.

      E. A. O’Sullivan for Plaintiff, Appellee.

      Ambrose Smith for John IL- Murray, Defendant, Appellant.
   The opinion of the court was delivered by

Monroe, J.

The plaintiff, appearing as a citizen and tax-payer, seeks to perpetually enjoin action by the city of New Orleans under an ordinance adopted by it and under any agreement, which may have been made pursuant thereto, between .said city and John II. Murray, whereby, it is alleged, that certain payments were to be made to said Murray from money coming into the city treasury; the grounds relied on being that the ordinance was ultra vires, for various reasons stated in the petition.

The city and Murray, as defendants, affirm the validity of the ordinance in question, and of the contract made .pursuant to its authority, and Murray alleges that he has furnished information and rendered services, which entitle him to the compensation, the payment of which is enjoined. There was judgment in the court a qua in favor of the plaintiff, perpetuating the injunction which had been issued, and decreeing the nullity of the ordinance and agreement in question, and defendants have appealed.

The facts, as they appear from the record, are as follows:

“Some time prior to February, 1898, Mr. Ambrose Smith, a member of the bar, called upon the Hon. Walter C. Flower, Mayor of New Orleans, and informed him that, in behalf of Mr. John H. Murray, he proposed to submit a proposition looking to the collection, by the city, of taxes due upon property which had escaped assessment, and asked the Mayor, in substance, whether such a proposition would be entertained. The Mayor replied that such propositions had frequently been entertained; and that the one referred to, if made, would be submitted to the Council; Shortly afterwards, he received from Murray, and submitted to the Council, .a letter in the following terms:
“To the Mayor and Council—
“The city of New Orleans has been, and is now, losing a large sum “ of money, which I believe I can recover and secure to the city. “ With this purpose, I have the honor to submit, for your considera- “ tion and action, the following proposition, to-wit: I will agree to “ give the information and the data in my possession, as also, in con- “ neetion with the city attorney, with his consent, the professional “ services of my attorney, in consideration of the city, through the “ proper authority, agreeing to pay me an adequate proportion of “whatever is realized, as a compensation for said services. If no “ amount be recovered and collected, no compensation whatever is to “ be due or demandable. If this proposition meets your approval, I “ hold myself in readiness to confer with your honor, or a comittee of “ the Council, and the city attorney, in regard to the details of a con- “ tract, and the work thereunder.”

The matter appears to have been referred to the Finance Commitee, by the Council, and that committee, after hearing Murray and his attorney, favored the acceptance of the proposition, but referred it to the Mayor and city attorney to get the benefit of their views as to the amount of compensation which should be allowed; and an agreement upon that point having been reached, the committee reported, and the Council adopted the following ordinance:

“No. 14,012, Council Series.
“Be it ordained, etc., That, in accordance with the proposition of “John IT. Murray, made to 'the city, on December 27, 1897, the “Mayor be, and he is hereby, authorized to contract with John IT. “ Murray for the recovery, and securing to the city, of certain sums of “ money and revenues of which the city has heretofore been deprived. “ The said John H. Murray to receive, as compensation for his infor“mation and services in said direction, fifteen (15) per cent, of an^- “ amount realized under said contract, up to $50,000, and ten per cent. “ (10 per cent.) on any amount in excess thereof, when covered into “ the treasury; and, provided, no compensation be due or demandable “by said John II. Murray except upon the amount recovered and col- lected under said contract, exclusive of the cost of collection; any “ costs of collection incurred by the city to be also deducted from the “ amount collected whenever the same are not recovered from the “ debtor. Adopted by the Council of the city of New Orleans, Febru- “ ary 8, 1898.”

Approved by the Mayor, February 9, 1898, and duly promulgated.-

It was considered unnecessary to reduce the contract to the form of a notarial act, and the Mayor and Murray, by common consent, put it in the shape of a communication and reply, as follows: On February 26, 1898, Murray wrote to the Mayor: “I hereby indicate my aecept- “ anee of the terms of Ordinance No. 14,012, Council Series, approved “ February 9, 1898, a copy of which is hereto attached.” And on the same day, the Mayor replied: “Your favor of even date, indicating “ your acceptance of the terms and conditions of Ordinance 14,012, C. S., approved February 9, 1898, is received; same is satisfactory.”

Thereafter, on March 1, 1898, Mr. Smith, representing Mr. Murray, addressed the following communication to the Board of Assessors, to-Wit:

“We have the honor to inform you that, under a contract with the- “ city of New Orleans, authorized and entered into under the provis- “ ions of Ordinance 14,012, Council Series, approved February 9, “ 1898, we have been employed to recover for the city, certain sums of “ money of which she has not been the beneficiary. We arc now ready “ to proceed in the direction of the fulfilment of said contract and the “ realization of such monies. In order to accomplish this result, the “ co-operation and action of your Honorable Board are necessary. “We should be pleased to confer with your Board relative to the “ details of procedure in this matter. Will you kindly designate the “ time and place at which such conference.will be most agreeable and “ convenient. We propose, under our contract with the city, to make “ amenable to taxation the property of various institutions, schools “an<l colleges, etc., which, heretofore, has escaped and been relieved “ from assessment and taxation. With the concurrence of your “ Board, a very large amount of money and revenue can, and will, be secured to the city and State, which, in the past, they have not “ received or enjoyed. An early response in the premises will be “ greatly appreciated,' and will materially advance us in -the contem- “ plated work.
“(Signed) John H. Murray,
“Per Ambrose Smith,
“Attorney.

The conference thus suggested was held, and Mr. Smith, as the attorney for Mr. Murray, submitted his views to the Board of Assessors .by means of an oral argument and a brief, which he had prepared, urging that body to assess the property of certain institutions which had theretofore been carried on the rolls as exempt. Upon March 12, 1898, he received a communication, stating that the Board declined'to take the action suggested. He thereupon called upon the Attorney General, and, laying the matter before him, invited his official co-operation and sanction in, and to, such legal proceedings as were deemed necessary, and such co-operation and sanction were accorded.

Mr. Smith, thereupon, prepared and filed the petition in a suit entitled, “State ex rel. M. J. Cunningham vs. Board of Assessors”, in which the State joined with it, as relators, the city of New Orleans and John H. Murray, and the purpose of which was to compel the defendant Board to assess the property to which its attention had been directed. He tried the case in the lower court, the trial ocupying a number of days, and brought it, by appeal, to this court, where, at his request, and that of the Attorney General, made at the suggestion of Mr. Smith, and in order that a judgment might be obtained in time to save the taxes of 1895 from prescription, the case was heard during the summer, and decided in December of 1898, though a rehearing was subsequently granted on a minor point, and the final judgment was rendered at a later date. State ex rel. Cunningham vs. Board of Assessors, 52 Ann. 223. On this trial, Mr. Smith presented elaborate arguments, orally and by briefs, both upon the original hearing and upon the rehearing.

The City Attorney testifies that he took no active part in the case, and that it was conducted by Mr. Smith, who originated the idea, and the Attorney General.

The Attorney General testifies that it was at Mr. Smith’s request that the suit was brought; that Mr. Smith did practically all of the work, and that the result was largely successful.

It further appears, from the evidence in the record, and from the case thus referred to, as reported, that property belonging to different institutions, religious, cháritable, and educational, situated in New Orleans, was carried on the assessment rolls as exempt from taxation, and that it had been so carried for many years; and the immediate purpose and effect of the suit thus brought, was to fix the slalus of such property, as property subject to taxation, and to secure for the city and State, the taxes for the year 1898, and three preceding years. Whether that property was legally subject to taxation, or was legally exempt, was a question which depended, primarily, upon the existence, or non-existence, of certain facts; and, thereafter, upon a construction of the law, and its application, as construed, to the facts and conditions found — that is to say, it had to be determined, in any given case, who used the property, and for what purpose; whether any income was derived from it, and if so, what became of it; after which, it became necessary to construe the proviso in Article 207 of the Constitution of 1879, which reads, "provided: the property so exempted be not used or leased for purposes of private or corporate profit, or income” and apply it as construed to the facts disclosed. By the decree of the court, it was held that the property known as “the Jesuits College, in so far as it is used as a residence by the priests, not teachers in the college”; “all the squares adjoining the Louisiana Retreat, save and “ except two of the said squares, required for the exercise of the in“sane; the squares adjoining the Leland University, held by that institution; the property adjoining Christ Church, known as the “Bishop’s residence; the row of frame houses * * * no part of “ St. Elizabeth’s Asylum; the property of the Young lien’s Christian “Association, except that part used as a library; and all the property “ of the Firemen’s Charitable Association, except that used as a eemo“tery”, should be assessed and taxed, although it had, theretofore, been treated as exempt.

It further appears, from the evidence in the case before us, that the city officials, and the assessors, knew that the different institutions mentioned owned the property in question, and also knew that it was carried on the assessment rolls as exempt; but it does not appear that they knew, certainly not in mo3t of the cases, for what specific purpose it was used, and, if they did know, in any particular case, the presumption, in the absence of proof to the contrary, is, that they believed that, being- so used, it was entitled to the exemption which they accorded.

The information, upon questions of fact, furnished by Murray, related, therefore, to the specific uses, rather than to the existence or ownership of the property to which he called attention; and the service otherwise rendered by him, through his attorney, consisted in, practically, bringing and prosecuting to final judgment, a suit, in which he convinced this court; that the property used in that way, although believed, by many lawyers and officials, and held by more than one court, to be exempt, was legally subject to taxation.

The City Attorney was of opinion that some of. the property was exempt. The Mayor testifies that, whilst, if the property is liable to taxation, it is proper that it should be taxed, and that if his attention had been called to it he would have communicated with the Council upon the subject, yet, that, if he had known, in advance, that Murray’s proposition involved the taxation of the property of eleemosynary institutions, the exemption of which had been long acquiesced in, he doubts whether he would have lent himself to its acceptance. The Attorney General states that he knew nothing as to most of the property, how it was used, or whether it was taxed, or untaxed, and, as to some of it, that he had been of opinion that it was exempt. And, finally, as we have seen, the assessors not only did not assess, but refused to assess, the property pointed out by Murray, and which, by reason of the suit brought by him, has been subjected to taxation, of which the city and State are now receiving the proceeds.

The only additional fact which it seems necessary to mention is, that the plaintiff in the instant case, being asked; “you allege in your petition, attacking this ordinance and the compensation provided for under it, that you would suffer injury, I would like to know what the character of that injury is, or was, at the time you filed this petition ?” To which he replied: “I certainly can not answer that.”

It is established, then, beyond peradventure, that, after the adoption of the ordinance in question, the Mayor of the city, acting, as he believed, pursuant to its authority, entered into the contract with Murray in the manner, as heretofore stated. It is shown that Murray and his attorney have fully and faithfully complied with that contract, and that the city is now enjoying the benefits resulting therefrom, and will continue to do so, to a greater or less degree, in the future. It further appears, that the city,, speaking through her authorized representatives, is ready and willing to fulfill the obligations assumed by, her, under the contract which has thus been executed to her advantage; and, upon the other hand, it has not been made to appear, in what way the tax-payers at large, or the plaintiff in this suit, have been, or will be, injured by the ordinance, the contract, or the results. Furthermore, this suit was instituted more than seven months after the ordinance, which it attacks, was passed, after the Mayor had acted on it to the extent of entering into a contract, as contemplated by it, after Murray and Ids attorney had done the work and accomplished the results which they undertook to do and accomplish, after the city had been placed in a position to realize the advantages which had been promised; and only in time to prevent, and for the purpose of preventing, the city from fulfilling her obligations in the premises, by paying, as she had agreed to pay, those whose services she had received and is now profiting by.

Under these cireumstanes, we are of opinion that the cage presented by the plaintiff fails to show that any relief is needed and entitles him to none; and that it is, therefore, immaterial for its purposes, whether the agreement between the Mayor and Murray was ultra vires or intra vires, whether it involved more than five hundred dollars, or less, or whether it was in the usual form or some other form. There is a limit to the right of the individual citizen to meddle in the administration of governmental affairs which are entrusted to officers selected for that purpose, and that limit, we think, is reached' in a case, where the government, the citizens at large, and the individual citizen who complains, are shown to have derived all' the benefits, and full consideration, in a contract, entered into in good faith, on both sides, and executed in good faith by the other contracting party; and where the only purpose of the interference is to enable such government, citizens at large, and individual, whilst holding on to such benefits and consideration, to escape the correlative obligation resulting from their receipt and enjoyment.

The duty of a member of a private corporation, in the case of an ultra vires contract, is stated, by Professor Elliot, as follows: “If a stockholder desires protection against an ultra vires contract of 'the “ corporation, he must act promptly and energetically, or he will be “ bound by acquiescence. If he assents to the transaction, or, for an “unreasonable time, acquiesces, until the other party has acted on “ the faith of the transaction, so that he will suffer great injury by its repudiation, a court of equity will be slow in granting relief to such “ a stockholder.”

Elliot on Private Corporations, Par. 76; Clark on Corporations, 399; Cook on Stock and Stockholders, Par. 732; Taylor on Private Corporations, Par. 699; and text writers generally, to the same effect.

From the work last quoted, we also take the following expression of the consensus of opinion, upon another point:

“In fine, it must be made to appear to the court, that it is necessary “ for the protection of the plaintiff’s interests that he should be allowed to bring the action.” Taylor on Private Corporations, Par. 688.

The doctrine, as thus stated, founded in reason, good conscience, and the fundamental principles of equity, is also applied to the right of action existing in individual members of public corporations. “Generally speaking, equity will interfere in favor of, or against, municipal corporations on the same principles by which it is guided 'in cases between other suitors.” Dillon Munic. Corps., V. II, 1096, 4th Ed.

We, therefore, find, that it has been held that “though money has been illegally spent by a city or town, and though the petitioners' are entitled to resort to equity to restrain illegal appropriations, yet, if they have been guilty of gross laches, and have knowingly permitted third persons to incur liabilities, in good faith, relying upon such appropriation for re-imbursement, an injunction will be denied.” Tash vs. Adams, 10 Cush. (Mass.), 252; Stewart vs. Kalamazoo, 30 Mich., 69; People vs. Maynard, 15 Mich., 463.

In conclusion it is proper to say, that it is admitted, that the contract, between Murray and the city, entitles the latter, only, to the percentage, agreed on, upon the taxes collected from the property which formed the subject of the contract' and which may be covered into the Treasury, for the years 18.95,1896, 1897, and 1898, and does not entitle him to a percentage on the taxes of any other years, past or future.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that there now be judgment in favor of the defendants and appellants, and against the plaintiff and appellee, dissolving the injunction herein issued, and rejecting the plaintiff’s demand,, at his cost in both courts.