On Bei-iearing.
Monroe, J.In the matter of City of Shreveport vs. Prescott, et als., it was held by this court that the proportion of paving for which the front proprietors are liable is to be ascertained by first deducting from the whole cost the portion chargeable to the street railway companies, and then dividing the remaining liability between the city and the froftt proprietors in the proportion of one-third to the former and two-thirds to the latter. As the street railway companies were not parties to that litigation, the judgment did not bind them, or determine what proportion of the paving, if any, they are liable for. Upon the contrary, quoting the language of the opinion, that question was “left open for determination, contradictorily, by and between, the interested parties, that is to say, the abutting property holders, the street railway companies, and the city — so that the due proportion of the assessment chargeable against each, may be legally ascertained according to law.” City of Shreveport vs. Prescott et als., 51 Ann. 1931. In the instant case, the “interested parties”, that is to say, certain of the abutting property holders, the street railway companies and the city, are before the court, presenting and asking to have determined, the question, which was thus reserved until it should be so presented, i. e., for what proportion, if gny, of the paving, are the railway companies liable ? The city is now claiming that they are liable, where they have double tracks, in the *276proportion to the whole cost that 18 2-12 feet bears to 54 feet; as it is claimed that the aggregate width of two tracks, plus two feet, called “clearance space”, is 18 2-12 feel; and that the total width of the street between the curbs is 54 feet. The defendant companies, upon the other hand, stand, first, upon a contract embodied in an ordinance of Sept. 7, 1897, fixing upon 9 5-12 feet as the total amount to be paved by them, for the two tracks; and, in the event of their not being sustained in that position they claim the benefit of the contract of May 4th, 1891, whereby they were to “rock or gravel” the street, to a certain width. And, both positions being found untenable, they insist that the only law under which it can be claimed that the assessment of their property is authorized is specific to the effect that such assessment must be predicated upon the space occupied by the road-bed (citing Act No. 10 of Í896), and that as their road-beds occupy less space than they are assessed for, the assessment should be reduced.
Dealing with the propositions of the defendant companies in the order in which they are stated; we are still of the opinion that it was incompetent for the City Council, in September, 1897, to fix upon 9 5-12 feet as the width for which defendants should be assessed upon two tracks, irrespective of the actual width of the road-beds upon which such tracks rest, for the reason that Act No. 10 of 1896 establishes the basis upon which the assessment is to be made, and neither the Council, nor the companies, nor both of them, can effectively establish any other basis.
The statute.in question provides that, “where a railway bed and track “ occupy a portion of the street, it shall pay in proportion to the space “ occupied by its road-bed compared to the entire width of the street * “ * * that the intersections of all streets shall be paved at the expense “ of the municipality and railway, occupying a portion of the same, in “ the proportion to the space 'the said road-beds may occupy with rela- “ tion to the whole intersection.”
The companies defendant must therefore pay in proportion to the space occupied by their road-beds, unless better cause to the contrary is shown than the ordinance of September, 1897. This brings us to the next proposition, i. e., that in the event that the court refuses to sustain the ordinance of September, 1897, the companies are entitled to the enforcement of the contract of May 4th, 1891, whereby they were to “rock or gravel”, to a certain width and depth, the street through which their track was laid. Conceding, arguendo, that the contract relied on, in case it becomes necessary to construe it, should be construed as claimed *277by the defendants, it does not follow that the alternative to the maintenance of the ordinance of September, 1897, is the enforcement of that contract. The evidence shows, and it is not denied, that there was an intervening contract entered into between the city and the railway companies upon June 9th, 1897, whereby the companies agreed not only to bear a proportion of the expense of paving with brick, but also fixed upon 7% feet as the width which would properly represent that proportion, upon the basis of the single track which they, then, had. By this contract they necessarily abandoned any rights which they might have had to limit their paying contributions to rock and gravel. And it was this contract which was in force when the ordinance of September, 1897, was adopted and.which, therefore, the defendants are to appeal to in default of the enforcement of the provisions of that ordinance. No better evidence of this could be desired than the following language in the ordinance of September 7, 1897, taken in connection with the fact that the contract of May 4, 1891, is not mentioned therein, to-wit: “* * * it is the intention of this ordinance to supersede, cancel and annul the compromise agreed upon “ between the City of Shreveport and the said Shreveport City Railway Company on June 9th, 1897, and that all ordinances incon- “ sistent herewith be and the same are hereby repealed, annulled “ and made of no effect, and that this ordinance is to take effect from “and after its acceptance by the said Shreveport City Railway Com“pany and by the said Shreveport Belt Railway Company.”
If it be said that this agreement must also fall for the same reason that the contract of September, 1897, is held to be inoperative, the answer id, that whether that reason is applicable or not depends upon whether both contracts present the same feature of repugnance to the law. The contract of September is invalid because it undertakes to establish 9 5-12 feet as the width, upon the basis of which, for a double track road, the defendants are to be assessed for paving purposes, whereas the law establishes a different basis, calling for a greater width. The other contract undertakes to establish 7% feet as the width, upon the basis of which, for a single track road, the defendants are to be assessed, and it remains to be ascertained whether this is less or greater than the width required by the statute.
The statute, as we have seen, provides that a railway company “shall pay in proportion to the space occupied by its road-bed.” The evidence adduced shows that the road-beds of the defendant com*278panies, measured by the length of the cross-ties used, are seven feet in width, whilst the compromise of June 9th, 1897, called for a width of seven feet nine inches. But the companies now say that it is not the width of their road-beds that ought to be considered, but the space between the outer edges of the rails, — for the reason that the cross-ties were laid merely to hold the rails in position until the concrete which serves as the foundation for the brick pavement, and (as they claim) for the rails, should harden. It is not denied, however, that the graded and prepared soil, with the cross-ties laid thereon, and the concrete ballast and brick surface, all form part of the road-bed, as actually constructed; and,' as the road-bed is as wide as its widest pari, and as the cross-ties extend to a width of seven feet, it follows that the road-bed is seven feet wide; and it does not affect the question that it might have been made narrower by leaving out the cross-ties. We, therefore, conclude that the claim of the defendant, that, for the purposes of the assessments, the width of their roads should be determined by the space between the outer edges of the rails rather than by the length of the cross-ties is not well founded. Upon the other hand, the city and the property holders claim that the assessable width should be taken to be the space between the outer edges of the rails plus two feet on each side for what is called “clearance space,” i. e., space required for the operation of the cars, by reason of the fact that the body of the cair is about that much wider than the track. Beviewing the adjudged cases on this subject, we find none that sanctions the assessment of “clearance space,” unless upon the authority of a statute specifically declaring that the assessment should be made in that way. And, a? the statute applicable to this case not only does not so declare, but specifically provides that the assessment shall be made upon another and a different basis, there is no authority in this State for the assessment of such space.
The suggestion might perhaps be made that the defendants are committed to an assessable width of 7% feet for each track by reason of the compromise of June 9, 1897. But we are of opinion that this view ought not to control. By the compromise referred to, the railway companies, in order to facilitate the city in the improvement of the street by laying brick pavement, waived the question of their right to stand upon the contract of May 4, 1891, with respect to paving obligations, and not only agreed to share the expense of the pave*279ment, but, apparently, under a misapprehension of facts, consented that their liability should be established upon a basis of measurement somewhat in excess of what the act of 1896 calls for; the idea in fixing upon a width of 7% feet being- that the cross-ties are seven feet long and that, in renewing them, it would be necessary to disturb the pavement for several inches, on either side, whereas it is shown that by cutting a defective tie in the middle it may be drawn from either end, and hence, that the excavation need not be wider than the length of the tie. Beyond which, it is álso shown that, as the roads in question are built, it is not contemplated that the ties will ever be renewed. Moreover the contract was annulled by the contract of September 7, 1897, and whilst the latter is declared to be inoperative in so far as it fixes the assessable width of defendants’ roads at less than the statute calls for, it is not necessarily null in other respects, since rights have been acquired under it, the surrender of which is neither demanded upon the one side nor tendered upon the other. It may, therefore, be considered as effective for the purpose of annulling the basis of assessment established by the compromise of June 9th, 1897, which was the preliminary step to the attempt to establish another basis. And the fact that the basis thus attempted to be established has not been sustained, does not revive that which was annulled, because, in the meanwhile, new conditions have arisen to which the provisions of the compromise in June are inapplicable.
We, therefore, conclude that the defendant companies are liable to assessment for paving purposes, under Act No. 10 of 1896, in the proportion that the space occupied by their road-beds bears to the width and length of the street to be paved, and that their road-beds are to be held, for such purposes, and, as now considered, to be seven feet wide each. This conclusion renders it unnecessary that we should express any opinion upon the question, whether, in the absence of an express statute, or, of any eo'ntractural obligation, the road-bed of a railway company is liable to local assessment for the paving of the street in which it is built.
For the reasons assigned, it is ordered, adjudged and decreed that the judgments rendered by the District Court, in these consolidated cases, be now annulled, avoided and reversed. It is further ordered that the liability of the defendant railway companies for assessment for the paving of the streets through which their roads run be fixed *280upon the basis of the proportion that the space occupied by the beds of said roads bears to the whole length and width of the streets paved, or to be paved; and that, for the purposes of such assessment, the width of said road-beds be, and the same is hereby, fixed at seven feet for each track. It is further ordered, adjudged and decreed, that, after deducting from the entire cost of paving the proportion due by the railroad companies, as hereby fixed and established, the remaining liability be divided between the City of Shreveport and the front proprietors in the proportion of one-third to the former and two-thirds to the latter, save at the intersections of the streets for which no liability rests upon such front proprietors. It is further ordered that all rights, liens and privileges conferred upon the City of Shreveport by and under the Act No. 10 of 1896, and other laws bearing upon the subject, be reserved, and that the case be remanded to the lower court for such further proceedings, in conformity to the views herein expressed, as may be necessary in the premises. It is further ordered that the plaintiff pay the costs of the appeal, and that the costs of the lower court be paid by the defendants.
Blanchard, J., takes no part in this decision, being recused on account of interest.