rendered the opinion and decree of the-Court, as follows:
Plaintiff is the holder of certain obligations of the City of New Orleans, known as “Public Belt Railroad Bonds,” issued under the provisions of Act 179 of 1908; which .act is imbedded in the Constitution of the State, as an amendment thereto, and chained to the Federal Constitution by an express declaration that its provisions “shall constitute a contract” between the State of Louisiana, the City of New Orleans and the holders of the bonds issued thereunder.
*321He seeks to enjoin the execution of a certain ordinance of the City of New Orleans, known as No. 74 Commission Council Series, as being-' in conflict with the aforesaid contract, statute and constitutional provision.
The statute provides in substance that the City of New Orleans shall construct and operate its Belt Bail-road System, through a B'oard or Commission, the members of said Board to be appointed, by the Mayor with the consent of the Council, its powers, duties and fanetions to be prescribed by the City.
The ordinance provides in effect, that the Commissioner of Public Utilities of the City of New Orleans, shall be ex officio a member of said Board and Acting President thereof; and in his last named capacity, it gives him “active charge, management and .control of the detail operations of the Belt Railroad System. ” (His . official signature, says the ordinance, in all matters relating to said Public Belt Railroad shall be “Commissioner of Public Utilities, Acting President Public Belt Railroad Commission. ’ ’)
The authority vested in the Commissioner of Public Utilities being vested in him in his capacity of Acting President, it follows that the provisions in relation thereto are necessarily dependent for their validity upon the validity of his appointment as such. So that the ordk nance must stand or fall as a whole. Sublato prineipali tollitur adjunctum.
But the mere statement of the case makes it manifest that the ordinance violates the provisions of the Statute, since the Commissioner of Public Utilities becomes a member of the Board byi virtue of the ordinance instead of by appointment of the Mayor as required by the Statute.
*322The ordinance is therefore void as a whole.
It- would serve no good purpose to examine the point raised by the defendant, to-wit, that a municipal corporation can barter away no part of its governmental functions. Suffice it to say that until the people of Louisiana undo their constitutional provision, and the Legislature repeals the Statute, the ultra vires aspect of the matter cannot be urged by a municipal corporation, bound by the one and the other irrespective of the contractual features therein contained.
It might perhaps suffice to close this opinion here, but as this might lead to a wholly erroneous construction being placed thereon, it may as well be stated at this time that had a majority of the Court been of opinion that Act 179 of 1908 vested absolute and sole control of the Belt Bailroad in the Board of Commissioners, exclusive of any further authority over the same in the City itself, or that the light of the City to reorganize the Board of Commissioners was exhausted when the bonds were issued, the Court would in that event have rested its opinion on those grounds, as logically it should have done had such been its views. But the writer and Judge Godchaux were not inclined to such opinion; Judge Claiborne differed with them on these points.
It is therefore ordered that the judgment appealed from be reversed and it is now ordered that a peremptory injunction issue herein restraining and prohibiting the defendants, ¥m. B. Thompson, Commissioner of Public Utilities, and the City of New Orleans, from executing or enforcing the provisions of Ordinance No. 74 Commission Council Series, which ordinance is- hereby declared null and void. It is further ordered that the City of New Orleans pay all costs.