State ex rel. Crescent City Railroad v. Bell

21 So. 724, 49 La. Ann. 676, 1897 La. LEXIS 627

• Court: Supreme Court of Louisiana
• Decided: February 15, 1897
• Docket: No. 12,325
• Status: Published

Opinions

The opinion of the court was delivered by

Breaux, J.

The relator applied for a writ of mandamus to compel the Oity Engineer to furnish it lines and levels, for the construction of its railroad through the neutral ground of Carrollton avenue, from Second to Fourth streets.

The relator claimed that it owned a railroad franchise and that subsequently the Oity Council passed an ordinance, under which certain changes were made in the matter of the line of the railroad; that instead of the right to use either Fourth or Second street from Broadway to the upper terminus, it was ordained that it shall construct its road on Second from Broadway to Carrollton avenue, thence through the neutral ground of Carrollton avenue to Fourth, thence along Fourth street to the parish line. The relator alleged that the whole road has been completed except that portion which runs through Carrollton avenue from Second to Fourth street; that the whole of the line has been for some time operated from the lower terminus up Second street to Carrollton avenue, and relator is anxious to connect its line so as to operate its line from terminus to terminus.

The respondent returned in answer to the preliminary order issued on the application for a mandamus, that it was not his duty to deliver to relator lines and levels, because the amending ordinance under which the relator claims a franchise has been repealed by the City Council.

If it has not been repealed, then relator sets up that relator’s allegations are vague and indefinite, and that they do not indicate upon what neutral grounds to establish the lines and levels; that they do not designate upon which of the three strips of neutral ground on Carrollton avenue the tracks are to be laid.

And, lastly, the grounds are that the relator has no contract with the city and holds no franchise from the city; that the alleged contract is void.

As a question of fact, it is not disputed that the relator has constructed its line of road as alleged in its petition.

The ordinance under which relator claims a franchise was considered and discussed in the ease of Crescent City Railroad Company vs. New Orleans & Carrollton Railroad Company, 48 An. 856, 866. It relieves us from the necessity of discussing at length the original ordinance, under which the relator acquired its franchise.

It is also a fact that relator accepted the terms and conditions of the ordinance.

Subsequently, the council took it in hand to repeal the ordinance granting the franchise claimed. It appears that the action of the City Council was made final after the service of the alternative writ of mandamus upon respondent. If there is a right of action, no question is raised as to the want of authority to proceed by way of mandamus; in other words, it was not contended that the relator had mistaken its remedy. Prom the specifications made part of the first ordinance we extract: “This road shall follow the route described in the above ordinance, and indicated in the accompanying plan. The full red lines in said plan shows the route proposed, and the dotted red lines the route which the purchasers have the option of using.”

“ It shall be built on lines and levels given by the City Surveyor.”

Prom a judgment making the writ of mandamus peremptory the respondent prosecutes this appeal.

The repeal of the ordinance vel non, authorizing a change in the route of the road, is the first question before us.

The council had entered into a contract with relator, and adjudicatee of a franchise. So far as the record reveals, the relator had complied with the terms of the adjudication; the amount of the bid had been paid. The relator, in so far as we are informed, had complied with its contract. It had constructed its road on lines and levels furnished, and only a short distance remained to be constructed from terminus to terminus. There was an existing contract between the city and the corporation relator. It was no longer within the power of the city to treat this contract as an absolute nullity and to pass an ordinance canceling the prior ordinance changing the route and abrogating all possibility of claiming any right under it. There was no question of fraud or unfair dealing of any kind disclosed by the record. By its execution the contract acquired a validity to which effect should be given until it is regularly annulled contradictorily with the party in interest.

In our opinion, in the case of Railroad Co. vs. Mayor, 48 An. 1102, 1115, in regard to a similar question, we said: “We would not be justified in treating the ordinance as void. It must remain in force until decreed null in proceeding to that end. It may be that the council, desiring to encourage plaintiff’s enterprise, has conceded more than it should have conceded; nevertheless, the concession was made and has been accepted and the conditions complied with. It has become a fait accompli, which under any view is not void and can not be absolutely ignored by the defendant as attempted by ordering the reopening of the street.”

We must adhere to the principle laid down in that case. It applies here. It is an equitable principle applying even if a contract is null in its origin. Multa fieri prohibentur quse si facta fuerint, obtinent firmitatem. If a contract is voidable proper steps must be taken to have its nullity declared.

The respondent insists in the second place, for reasons stated, that he can not furnish the lines and levels. The ordinance pleaded by the relator directs the course to follow. Lines and levels having been given in other streets, there is no good reason for coming to a stop-with this work at Carrollton avenue. Manifestly there is a neutral ground on that avenue.

Respondent admits in his answer that there are such grounds; the difficulty it appears consists in the fact alleged by him that they are divided into three strips. That of itself should not be considered enough to prevent the running of the line. The line can be drawn under the ordinance despite the strips.

Lastly, the respondent insists that the relator has no contract with the city, and holds no franchise from the city; the alleged contract offered in evidence by relator being absolutely null and void.

In discussing the second proposition of respondent’s answer, we found that the relator did enter into a contract with the city as alleged, and we decided that it was not subject to collateral attack-We will only add that, in our judgment, a ministerial officer called Tipon to execute an ordinance is without authority to raise the question the position here taken implies.

The question was carefully considered by us in the case of State ex rel. N. O. Canal and Banking Company et al. vs. Heard, 47 An. 1679, and the conclusion was reached that a doubt as to the validity of a statute would not justify a ministerial officer, who has no interest involved, in raising questions of irregularity of its adoption.

In our judgment the decree of the lower court was correct. It must be and it is affirmed.

Nicholls, O. J., rests his concurrence on the ground of acquiescence.