New Orleans Elevated Railway Company v. Mayor and Council of New Orleans

• Decision Date: 01 February 1887
• Docket Number: 9579
• Citation: 1 So. 434,39 La.Ann. 127
• Court: Louisiana Supreme Court
• Parties: NEW ORLEANS ELEVATED RAILWAY COMPANY v. MAYOR AND COUNCIL OF NEW ORLEANS

1 So. 434

39 La.Ann. 127

NEW ORLEANS ELEVATED RAILWAY COMPANY v. MAYOR AND COUNCIL OF NEW ORLEANS

No. 9579

Supreme Court of Louisiana

February 1, 1887

APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

Blanc &amp Butler, for Plaintiff and Appellant.

W. H Rogers, City Attorney, for Defendant and Appellee.

OPINION

BERMUDEZ C. J.

The plaintiff company appeals from two judgments, one an interlocutory decree, dissolving in part an injunction issued in limine; another, a final judgment sustaining an exception of no cause of action, dismissing the suit.

The fundamental averments are: That the Council of the city of New Orleans has passed an ordinance, the object of which is to repeal another ordinance, under the provisions of which a valid contract was entered into between the plaintiff company and the corporation; that the ordinance was sent to the Mayor for his signature; that the passage, signature and promulgation of the ordinance are unfair, unjust, utterly and outrageously unlawful, beyond the power of the city, and a violation of the previous ordinance and the contract thereunder; an attempt to divest vested rights and to impair the obligations of a contract, contrary to the Federal and State Constitutions.

The prayer is, that the Mayor and Councilmen be enjoined from signing, promulgating, recording, enforcing or giving effect to, the ordinance purporting to repeal the anterior ordinance, until the further order of the court; and that after due proceedings, the injunction be perpetuated, and the attempted repeal and ordinance or enactment be declared null and void.

On those averments, a preliminary injunction issued, which, however, on a rule to dissolve, was set aside, as far as it restrains the passing, signing or promulgation of the ordinance or resolution complained of.

An exception of "no cause of action" was subsequently filed and sustained, and the suit was dismissed with costs.

We have carefully considered the authorities referred to by plaintiff's counsel, but do not propose to contest the correctness of the rulings relied on. It suffices to say, that, in none of the cases does it appear that a suit kindred to the present one, was instituted and passed upon.

There can be no possible dispute that, where a municipal corporation has passed a valid ordinance and under it has entered into a valid contract, subsequently carried out, the Council has no right to pass an ordinance repealing the ordinance and the contract, on false grounds; that such ordinance would be absolutely null, and that a court of justice would so declare.

It does not, however, follow that, where the ordinance was simply passed, and is in the hands of the corporation executive officer, the Mayor, the court has the right to issue an injunction in limine to prevent that official from considering the ordinance and approving it by his signature, in the exercise of his discretion, should he deem proper to do so.

The court would have a right to presume that the Mayor will do his duty, and that, if he finds that the submitted ordinance is ultra vires, he will veto it, and that the Council itself will yield and sustain the veto, and thus recall the ordinance. Non constat that this will not be the course of the Mayor and of the Council.

But, were it true that the Mayor would sign and promulgate the ordinance unless impeded by the court, such signature and promulgation of the ordinance proprio vigore could not, and therefore would not, make the repeal effectual, if such action was prohibited by law, as ultra vires.

The plaintiff claims that, under the provisions of the ordinance (No. 215, Council Series),...