39 La. Ann. 127 | La. | 1887
The opinion of the Court was delivered by
The plaintiff company appeals from two judgments, one an interlocutory decree, dissolving in part tin 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, xxxxder the provisions of which a valid contract was exxtered into between the plaintiff company and the corporation ; that
The prayer is, that the Mayor and Councilmen be enjoined from signing, promulgating, recording, enforcing or giving effect to, tiie ordinance purporting' to repeal the anterior ordinance, until the further order of the court; aud that, after due proceedings, the injunction be perpetuated, and the attempted repeal and ordinance or enactment be declared null and void.
On those avernients, 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 liled 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.
Tt 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, a.nd 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 or
'File plaintiff claims that, under the provisions of the ordinance (No. 215, Council Series), adopted on March 20,1883, giving, granting and establishing the franchise and right of way for an elevated railway along the river front, from the lower, or near the lower limits, to the upper boundary of the city of New Orleans, which ordinance conferred rights and imposed obligations — the plaintiff company has entered into a contract with the city on the 28th of April following, (1883), which is binding and indissoluble.
It is further alleged that, in furtherance of said ordinance and con - tract, the company has fully carried out all siich of its engagements as were susceptible of execution, and that, without a hearing, and while certain matters were pending before a committee, the Council has undertaken illegally to pass the repealing ordinance complained of, and already mentioned.
It is apparent that the petition discloses no cause of action for an injunction, in limine, for the obvious reason that the application is premature.
In the case of State ex rel. Behan vs. Judge, 35 Ann. 1075, (1081), in which a preliminary injunction had been issued to prevent the City Council from proceeding to the impeachment of the City Treasurer, the Court held, that the general rule is, that courts cannot impede by preliminary injunction, the usual functions of a municipal corporation ; but that this rule is subject to very few exceptions, where, from the nature of the act to be performed, and of the consequent inevitable and irreparable injury to public interest, the proposed action of the corporate body may be reached otherwise by the arm of the judiciary.
In so holding, the' court rested its conclusions on good authority. Dillon on M. C., 3d ed., vol. 1, No. 94, vol. 2, No. 908; High on Injunctions, Secs. 783, 795; Slaughterhouse Co. vs. Police Jury, 32 Ann. 1192; Harrison vs. New Orleans, 33 Ann. 222; Healy vs. Allen, 38 Ann.-.
The injunction issued in limine by the district judge was declared by this court to have been illegally granted, and the judge was prohibited from giving it effect.
In the present instance, the resolution passed does not direct the active or physicial performance of any act which may inflict-injury on the plaintiff.
As much as any individual citizen, a municipal corporation has a right to think and to say that a contract, to which it is a party, is a nullity and to repudiate it, as fan as practicable.
Such statement, of course, does not of itself, do away with the ordinance, or contract made in furtherance of it, as it is a mere declaration, or expression of opinion, not required by law to be uttered, as a condition precedent to obtain eventual relief and the contract may well stand, notwithstanding it, provided, the enunciation bo not founded on grounds sufficient to substantiate and justify it.
It is not until after the ordinance shall have been signed by the Mayor, or been passed over his veto, or have become final by the lapse of time, that its validity can be judicially contested and determined.
Otherwise the court would be exposed to adjudicate upon the legality of au ordinance merely in embryo, which may never bo signed, or never become definitive.
As was said, in 29 Ann. 272, and repeated with approbation in 82 Ann. 1196-7:
“ Courts of justice have enough to do in dealing with real, existing and present wrongs, without anticipating and combating hypothetical evils of the future, which may or may not arise.”
The dissolution of the preliminary injunction and the dismissal of the suit, on the exception, were proper.
Judgments affirmed.