State ex rel. City of New Orleans v. New Orleans And Northeastern Railroad Co.

• Decision Date: 01 February 1890
• Docket Number: 10,507
• Court: Louisiana Supreme Court
• Parties: THE STATE EX REL. CITY OF NEW ORLEANS v. NEW ORLEANS AND NORTHEASTERN RAILROAD COMPANY

7 So. 226

42 La.Ann. 138

THE STATE EX REL. CITY OF NEW ORLEANS v. NEW ORLEANS AND NORTHEASTERN RAILROAD COMPANY

No. 10,507

Supreme Court of Louisiana

February 1, 1890

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

Francis B. Lee, Assistant City Attorney, for the Relator and Appellant.

Harry H. Hall, for the Respondent and Appellee.

OPINION

POCHE, J.

The city seeks by mandamus, under the provisions of Act 133 of 1888, to compel the defendant company to construct a certain embankment on the outskirts of the city, in accordance with an ordinance numbered 7483, adopted by the City Council in December, 1881.

The proceeding was met by a peremptory exception, based on the ground that there is no warrant in law for the application of the writ of mandamus in the case set forth in relator's petition. The exception was maintained, and relator appeals.

The pivotal allegations of the petition are substantially that under the ordinance herein sought to be enforced, the railroad company obtained certain valuable franchises, among which was the right to occupy for its purposes certain streets of the city and certain embankments constructed within its limits, in consideration of which the said company agreed to continue a pre-existing embankment, so as to extend it on and through a certain thoroughfare known as Florida Walk, from its intersection with Peoples' Avenue to the Fisherman's Canal, on the lower limits of the City of New Orleans, and that the company has failed to comply with its obligations in the premises.

The work required of the company is designated in the ordinance as follows:

"From the intersection of the embankment of the canal of the People's Avenue and Lake Pontchartrain, to the intersection of said People's Avenue Canal embankment with Florida Walk, which said embankment shall be elevated above high water mark, according to lines and levels to be furnished by the City Surveyor, and to be kept in good repair by said company at its expense, with the right to deepen said People's Avenue Canal, to obtain earth for the said elevation and repairs. and that said company shall continue said embankment along Florida Walk, from the intersection of People's Avenue to the Fisherman's Canal, lower limits of the City of New Orleans, in accordance with lines and levels to be furnished by the City Surveyor."

The words herein italicized by us are descriptive of the work sought to be enforced, and the specifications of the same prepared by the City Surveyor, are annexed to and made part of relator's petition.

Defendant's contention, under its exception, is that the provisions of Act 133 of 1888 do not contemplate or justify recourse on the part of the city to the writ of mandamus to coerce the company to construct a new embankment or levee as provided for in that portion of the ordinance now under discussion.

On that point the act reads:

"That in cases where any corporation has heretofore contracted with, or may hereafter contract with, or shall be otherwise legally bound, to any parish or municipal corporation in this State, with reference to the paving, grading, repairing, reconstructing or care of any street, highway, bridge, culvert, levee, canal, ditch or crossing, and shall fail or neglect to perform said contract or obligation, the said parish or municipal corporation * * shall have the right to proceed by a writ of mandamus to compel the performance of said contract or obligation." * * *

The language of the section is not entirely free from ambiguity, and a proper construction of its true meaning may be facilitated by considering the cause which induced the Legislature to enact it. C. C., Art. 18.

It is asserted by relator's counsel, and we believe that the propriety and usefulness of that legislation grew out of the decision of this court in the case of the State ex rel. City of New Orleans vs. the New Orleans and Carrollton Railroad Company. 37 An., p. 589.

In that case the city applied for a writ of mandamus to compel the defendant company to make certain repairs to a street in the city to which it had bound itself by contract.

The writ was refused on the main ground that "the writ of mandamus does not lie to compel corporations to perform obligations arising simply from contract."

From the leading idea which prompted the act, it is quite apparent that its object was to extend the application of the writ as a remedy for the enforcement of contract obligations against corporations, and thus to supplement the action of such power as indicated by that decision.

The court had said that, from the nature of the writ of mandamus, and under the rules of law then in force, which controlled and restricted its application, it could not be invoked as a remedy to coerce a corporation to comply with its contract obligations, and such was the law up to the enactment of Act 133 of 1888; under its terms such obligations, contractual or otherwise, as are enumerated in the act, may now be enforced by means of the writ of mandamus. But the statute goes no further, and it does not purport to disturb any other judicial construction or exposition of the nature and scope of the writ of mandamus.

In the opinion above referred to, the court took occasion to say, on abundant legal and judicial authority:

"The writ of mandamus is the most arbitrary of all the forms in which judicial authority is exercised. It shuts out the right of trial by jury. It substitutes for the ordinary and cautious modes of judicial proceeding, an extremely harsh and summary procedure.

"Instead of a mere judgment settling simply the rights of litigants, and subject to execution by ordinary process, it invokes an arbitrary judicial mandate, to be executed by the judge himself, and disobedience to which is punishable by imprisonment for contempt, or by the harsh remedy of distringas.

"It is properly characterized as an extraordinary...