Wachsen v. Commission Council of Lake Charles

• Court: Louisiana Supreme Court
• Writing for the Court: LAND, J.
• Citation: Wachsen v. Commission Council of Lake Charles, 162 La. 823, 111 So. 177 (La. 1926)
• Decision Date: 02 November 1926
• Docket Number: 28267
• Parties: WACHSEN v. COMMISSION COUNCIL OF LAKE CHARLES et al. In re WACHSEN

111 So. 177

162 La. 823

WACHSEN v. COMMISSION COUNCIL OF LAKE CHARLES et al.

In re WACHSEN

No. 28267

Supreme Court of Louisiana

November 2, 1926

Rehearing Denied January 3, 1927

Judgment set aside, and preliminary injunction ordered.

Cullen R. Liskow, of Lake Charles, and Hudson, Potts, Bernstein &amp Sholars, of Monroe, for relator.

A. O King, City Atty., of Lake Charles (Brumby & Bauer, of Franklin, of counsel), for respondents.

LAND J. OVERTON, J., ROGERS, J., dissents.

OPINION

LAND, J.

An ordinance was introduced in the commission council of the city of Lake Charles granting to the Louisiana Western Railroad Company, without submission to a vote of the property taxpayers, a right of way for an industrial spur track over Front, Broad, Pujo, and North Court streets, with the privilege of constructing, maintaining, and operating said industrial track for a period of 25 years from date of the ordinance. Relator, who is a resident, qualified elector, and property taxpayer, of the city of Lake Charles, and the owner of real property on Front street, applied to respondent judge for a temporary injunction restraining the commission council from passing the ordinance in question, and from entering into or making such contract with the railroad company, on the ground that said ordinance is ultra vires, because in violation of Act 79 of 1896 and of Act 76 of 1914, which prohibit grants to railroads and other corporations of the right to use and occupy streets, except under prior approval of a majority of the property taxpayers in a city or town voting at an election to be called for such purpose; Act 79 of 1896 applying to cities and towns of less than 25,000 inhabitants, and Act 76 of 1914 to cities and towns of less than 75,000 inhabitants.

Relator avers in his petition filed in the lower court that the railroad company had made all preliminary plans and arrangements for the immediate use and occupancy of these streets with its industrial spur track, and that a majority of the members of the commission council, naming them, had publicly and privately announced their intention to vote for the passage of said ordinance at its meeting on September 7, 1926, or within the next few days, unless restrained from doing so by the district court of Calcasieu parish.

Relator further avers that the final passage of said ordinance by the municipal council, and the user of the rights and franchises by the railroad company, therein sought to be conferred, would operate to the great and irreparable loss, injury, and damage of relator and his property, as well as that of other residents, citizens, and property taxpayers of the city of Lake Charles.

Exceptions of prematurity to the jurisdiction of the court, and of no right or cause of action tendered by the commission council, were overruled; but the amendment to paragraph 5 of relator's petition, which had been made and allowed prior to the trial of the rule nisi, was stricken out; this amendment being to the effect "that the city of Lake Charles has, and had at the time of filing this suit, a population of less than 75,000 and in excess of 10,000."

Respondent judge, in passing upon the merits of the case, held that Act 76 of 1914 was repealed by Act 114 of 1916 amending section 15 of Act 136 of 1898, the Lawrason Municipal Corporation Act; and in so holding followed the Lewis Case, 122 La. 572, 47 So. 906, to the effect that Act 136 of 1898 had repealed Act 79 of 1896, and also the Mandeville Case, 139 La. 286, 71 So. 512, in which it is held that Act 76 of 1914 constitutes an enlargement, rather than a restriction, of the powers of municipalities, and, therefore, does not in any event affect the right of the governing body to make certain grants without a vote of the citizens.

For these reasons respondent judge declined to follow the more recent decisions of this court (the Crowley Case, 142 La. 640, 77 So. 486, and Connell v. Commission Council of the City of Baton Rouge [on rehearing] 153 La. 788, 96 So. 657), in which it is held that Act 79 of 1896 and Act 76 of 1914, requiring vote of taxpayers as condition of grants to railroads and other corporations to occupy streets, repeal all prior special laws in conflict therewith, so far as they authorize such grants without referendum.

Relator's application for a temporary injunction was therefore refused, and, after taking a devolutive appeal, notice was given by relator to respondent judge of his intention to apply to this court for a writ of certiorari, and also for a writ of mandamus to compel the issuance of the injunction.

1. Apparently the devolutive appeal taken by relator affords no adequate relief, as the commission council of the city of Lake Charles in the meantime is left free to pass the ordinance which is sought to be enjoined in this case.

If the ordinance in question is illegal and void, because ultra vires, as contended by relator, the only effective remedy left to him is to invoke the supervisory jurisdiction of this court under a writ of certiorari, and to obtain here an order for a temporary injunction, and the defendant may be granted such relief, regardless of the devolutive appeal. Hofman-Olsen, Inc., v. Northern Lumber Mfg. Co., 160 La. 839, 107 So. 593.

2. The courts take judicial notice of the public laws of the state, and therefore there was no necessity for setting up in relator's petition filed in the lower court the legal corporate organization of the municipality of Lake Charles. State v. O'Conner, 13 La.Ann. 486; Doss v. Board of Commissioners, 117 La. 450, 41 So. 720; Burke v. New Orleans Railroad & Light Co., 133 La. 369, 63 So. 51; McQuillen on Municipal Corporations, §§ 342, 145; Duncan v. Lynchburg (Va.) 2 Va. Dec. 700, 34 S.E. 964, 48 L.R.A. 331, 23 C. J. p. 129.

It is unimportant, therefore, that the application addressed to us alleges more fully than the original petition the incorporation of the city of Lake Charles as being by virtue of special Act 79 of the year 1867, and various amendments to the original act.

Respondent judge, in his answer to this application, has attempted to meet that issue by the statement that he is of the opinion that the city of Lake Charles is incorporated under the Lawrason Act (Act 136 of 1898); that its powers and duties are regulated by the general municipal laws of the state; and that therefore, in any event, Act 114 of 1916, amending section 15 of the Lawrason Act, applies in this case.

We cannot concur in that view of the matter. The town of Lake Charles was first incorporated under Act 79 of 1867, p. 155. This original charter merely provided for "all powers that are prescribed by law," and did not vest in the municipal authorities any specific rights to grant franchises.

The special charter granted later to Lake Charles by Act 200 of 1898 was made subject to approval by the electorate, and was rejected at an election held in October, 1898. It was not until the year 1899 that the municipality of Lake Charles, availing itself of section 43 of the Lawrason Act, amended its original charter of 1867.

Paragraph 6 of section 5 of this amended charter confers the right upon the town council to grant to railroads the use of the streets for the construction of their tracks. This charter so adopted is the present charter of Lake Charles.

It does not follow, by any means, that Lake Charles came under the Lawrason Act, because that municipality in 1899 amended its original charter of 1867 under section 43 of that Act, as it is expressly provided in that section "that when a municipality now existing, which has not come under the provisions of this act, shall desire to amend its charter, the same may be done in this way: The mayor and board of aldermen may prepare, in writing, the desired amendments, have the same published for three weeks in a newspaper published in the municipality, if there be one, and, if none, then by posting for said time in at least three public places therein; the proposed amendments shall then be submitted to the Governor, who shall submit them to the Attorney General for his opinion. If the Attorney General be of the opinion that the proposed amendments are consistent with the Constitution and laws of the United States and of this state, including this act, the Governor shall approve the proposed amendments. If after publication made, one-tenth of the qualified electors of the municipality shall protest against the proposed amendments, or any of them, the Governor shall not approve the ones protested against until they shall be submitted to and ratified by a majority of the electors of the municipality."

In other words, Lake Charles in 1899, instead of coming under the Lawrason Act, and thereby surrendering its original charter of 1867, retained that charter, and amended the same under section 43 of the Lawrason Act.

Lake Charles is therefore a municipality incorporated by special act.

3. It follows necessarily that the amendment of section 15 of the Lawrason Act by Act 114 of 1916 did not change or otherwise affect the special charter of Lake Charles, unless such amendment repealed Act 76 of 1914, as the latter act amended the charter of Lake Charles in so far as the granting of franchises without referendum is concerned, and required approval by the electorate. The amendment by Act 114 of 1916 of section 15 of the Lawrason Act is identical with the same section in the original act (136 of 1898), with the single exception of the new matter contained in the third paragraph of section 15 in the later act, and which relates to the regulation of livery and sales stables, and of the running at large of animals of all kinds within the corporate limits.

Paragraph sixth of section 15 of the original Lawrason Act ...