111 So. 177 | La. | 1926
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *825
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 *826
such contract with the railroad company, on the ground that said ordinance is ultra vires, because in violation of Act
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." *827
Respondent judge, in passing upon the merits of the case, held that Act
For these reasons respondent judge declined to follow the more recent decisions of this court (the Crowley Case,
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, *828
and the defendant may be granted such relief, regardless of the devolutive appeal. Hofman-Olsen, Inc., v. Northern Lumber Mfg. Co.,
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,
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
We cannot concur in that view of the matter. The town of Lake Charles was first incorporated under Act
The special charter granted later to Lake Charles by Act
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. *830
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
Paragraph sixth of section 15 of the original Lawrason Act (136 of 1898) confers upon municipalities coming under the act the right "to provide for and regulate the construction and passage of railways and street railroads through the streets, avenues, alleys, or lanes and public grounds of the municipality."
Act
As said in the Louisiana Western R. Co. v. City of Crowley,
*831"The corporation and its officers were governed by a charter adopted by the inhabitants of the town, pursuant to a general law providing for the adoption of municipal charters. Act No.
49 of 1882, p. 60. Surely the officers of the municipal corporation, their functions and authority, were governed and controlled by general laws enacted either before or after the municipal charter was adopted."
The sole object of Act
As the original Lawrason Act (136 of 1898) had been amended by Act
A mere recopying of the franchise paragraphs of section 15 of the Lawrason Act into the later act (114 of 1916) still left these franchise paragraphs intact, and as amended by Act
The repeal of all general and special laws, or parts thereof, in conflict with Act
If the Legislature had intended to repeal *832
Act
Therefore we have in this case both the judicial and the legislative interpretations placed upon Act
4. Whether Act
5. In Mandeville Ice Light Co. v. Town of Mandeville et al.,
Act
The sixth paragraph of Act
Act
The statement in the opinion in the Mandeville Case as to the scope of Act
It would be difficult to imagine an enlargement of powers over and above those enumerated in Act
When it is considered that public streets may be obstructed under Act
6. It was said in the Connell Case,
"There is no room for doubt that Act
76 of 1914 * * * was enacted by the Legislature to repeal all prior special laws in conflict therewith and under which any cities or towns throughout the state, within the designated number of population, might have been governed. It follows, therefore, that the petition fully supports a right and cause of action in petitioner as a property taxpayer, to invoke the relief prayed for."
It is conclusive, under the decision cited, that the special charter of Lake Charles, as amended in the year 1899, is controlled by Act
7. The attempt to pass the ordinance in question, without such charter requirement, is plainly an act upon the part of the commission council in excess of its authority. As the threatened or impending violation of the charter of Lake Charles, if consummated, would be wholly ultra vires, the plea of prematurity to the present action of relator as well as the exception to the jurisdiction of the district court, was properly overruled, and, as relator's petition discloses a right and cause of action, the temporary injunction should have issued. Connell v. Commission Council,
As well stated in Trading Stamp Co. v. Memphis,
"There is a broad distinction between the exercise of legislative authority when the power or jurisdiction to exercise it has been conferred by law, and an attempt to legislate upon matters clearly ultra vires. Where there is power and authority conferred by law to do any legislative act, the discretion of the council cannot be controlled, but when there is no legislative authority or power, injunction will lie. A municipal corporation has no discretion to do any act which is clearly illegal and beyond its power."
See Connell v. Commission Council,
8. Since respondent judge has construed relator's petition as fixing the population of Lake Charles between 10,000 and 75,000, we do not find it necessary to consider the motion to strike out the amendment in the petition showing the above population, although such motion was maintained.
For the reasons assigned, it is ordered that the judgment refusing to issue the injunction *836 in this case be annulled and set aside, and it is now ordered that the preliminary injunction issue, as prayed for, upon relator's furnishing bond in a sum to be fixed by the trial court.
OVERTON, J., dissents. He thinks that the plea of prematurity should be sustained.
ROGERS, J., dissents, being of the opinion that the plea of prematurity should be maintained.