On Application for Rehearing.
BREAUX, J.After having obtained the court’s consent, counsel for the Shreveport ■& Red River Valley Railroad Company filed a brief as amici curiae on behalf of that road, to which brief we have' given careful consideration.
The extent of the council’s authority over the belt road from the upper line of the ■city, when completed to Henderson street, gives rise to the question involved.
This is not, with us, a new point of controversy. It has been argued at the bar and •discussed by the court, and the conclusion was arrived at originally that the ordinance (1615) has application to a road to Clouet street, and not to a road to Henderson street.
The following are our reasons for thus concluding:
The ordinance provides, as relates to the road to Clouet street, “Every other company which shall contribute as aforesaid to the completion of the belt system, shall have the right to use the said completed belt.” Subdivision “d” of paragraph 10 of section 2 of the ordinance.
This refers, evidently, to all paragraphs of the ordinance, and reads into each paragraph, “the road to Clouet street,” as the objective point after leaving • Henderson street southward, and payment of the amount in question, of about $330,000, is not a condition of the grant from the upper parish line to Henderson street.
In our view, the other words of the ordinance do not restrict the meaning of the ordinance as before expressed. Section 2 of the ordinance provides “that said company shall construct * * * the double track as now projected from the ends of thé rails in the upper side of Audubon Park to Henderson street, with all necessary and convenient cross-overs, switches and spur tracks.”
This surely does not have the effect of limiting or restricting the use of the track from the upper line of the city to Henderson street, nor does it prevent other grants by the city of use from the upper line of the city to Henderson street. The other paragraphs of the ordinance relate to the right of way, to the title of the belt road, to the management of the belt road, but do not refer to the belt road to Henderson street as a “completed road,” for which other roads must pay $330,000 for the use.
This is the construction placed upon the ordinance by us.
During oral argument, propositions were argued from that point of view. In the brief, admissions were directly made. Since, the defendants have accepted our interpretation. They have submitted a written appearance to that effect, as the following shows:
“Now comes the New Orleans & San Francisco Railroad Company, defendant and appellee herein, and hereby judicially repudi*922ates the position taken by the plaintiff to the effect that under paragraph 10 of section 2 of Ordinance No. 1615, N. C. S., the city of New Orleans has debarred herself from granting to any other railroad company a right of way over so much of the belt tracks on the river front'as she may choose, except upon the condition that such railroad company should pay for such right an amount equal to the sum expended by the New Orleans & San Francisco Railroad Company in constructing the piece of track from the upper side of Audubon Park to Clouet street, and hereby judicially admits and declares that under the terms of said ordinance No. 1615, N. C. S., the city of New Orleans has full power to grant to any railroad company a right of way over the belt tracks from the upper city limits to Henderson street, in whole or in part, for any consideration or condition she may see fit to impose. And defendant further avers and admits that the written judicial declaration is made for the purpose of avoiding and combating the application for rehearing in this cause, and the application of-the Shreveport & Red River Valley Railroad Company to have the decree of the lower court amended. [Signed] Farrar, Jonas & Kruttschnitt, Attys. for New Orleans & San Francisco Railroad Company.”
The meaning of the paragraph does not include a part of the construction of the railroad, in presence of the fact that the whole is specially ref erred to; that is, the completed road. There is no question here of the whole including all of its parts, for the reason that the ordinance, to Henderson street from the north, is an independent proposition.
When the work will reach Clouet street, other conditions will arise than those which will arise when the work reaches Henderson street. To. Henderson street, the ordinance does not require the payment of $330,-000 (or about) in question. To Clouet street, or work contemplated to Clouet street, it does.
Questions regarding a future belt to Clouet street are not at all before us. We were called upon to determine whether payment could be required from other roads of the amount before mentioned, or for work to Henderson street. It surely is manifest by this time that we have found no good reason-to hold that the city of New Orleans is barred by the ordinance in question from granting by ordinance to other roads than the defendant road the same right to Henderson street as that granted to defendant road to-Henderson street.
The amici enrice have, on behalf of their client, the Shreveport & Red River Valley Railroad Company, suggested as follows, quoting from their brief:
“The roadbed of this company (the Shreveport & Red River Valley Railroad Company) being entirely within the state of Louisiana, if it is required to pay the sum of $330,-000, or an amount necessarily expended in the construction of the belt track down to-Henderson street, it would be practically denied the benefit of this belt system, and an entrance into the city of New Orleans. So, likewise, would every other road, chartered by and built within the state, be practically prohibited from using this belt with some-vast system of railway of this city.”
The inauiry, to the extent that it relates-to the road entirely within the state of Louisiana, has not heretofore been suggested. As it grows out of, and is closely and even inseparably connected with, other issues of the case, we will say that, from the upper-city limits to Henderson street, the city is-not prevented, under the laws and under form required, from granting the use of the contemplated belt on the terms and conditions heretofore mentioned by us in our original opinion. With this statement, we leave-the subject in regard to which the amici eurise addressed inquiry.
The right of way in question, over which it is proposed to operate a belt road, has been used in laying the track a distance of about two miles. This track is not utilized at all. No car, for belting purposes or any other purpose, runs over it. The record discloses that it is in a condition of disuse — it has fallen into desuetude.
The track at this point and the belt were-acquired in order to establish a belt road. Whatever dedication was made in the contract entered into with the Illinois Centra! Railroad Company was with the view of dedicating a road for a public belt.
Since 1889 no public belt has been built, and no attempt has been made in that direc*924tion, except the two miles of road before mentioned, and not used. It happened that in transacting with the Illinois Central Railroad Company the city obtained this railway as a ■consideration of certain grants made to this road.
The council conceived the idea of utilizing this grant, and adopted Ordinance No. 1615 to that end.
In the first ordinance (No. 15,080) a railroad belt was the purpose; in the second (No. 1615), a railroad belt is also the purpose — with this difference: that the means ■of accomplishing the purpose, as set forth in the first ordinance, are changed. This, we think, the council had authority to do. This ■question has, to some extent, been considered heretofore. The nature of the dedication was especially defined in the decision to which we refer. With reference to the officers of the city, the court said that it “realized that they were vested with authority to open streets and to widen them, and to permit the use of them for railroads”; that “it would be to the interest of the public at large to provide a means along this way, whereby imports and exports might be transferred at ship’s side.”
These officers used their power to obtain better facilities “for handling freight intended for foreign and local commerce.” See City v. Steinhardt, 52 La. Ann. 1043, 27 South. 586.
The city council were not unalterably and forever bound to the first ordinance (No. 15,-080) in such a way that no other ordinance to the end looked for in it could be passed, looking to the result which it seems the first ordinance had failed to bring about. Under a prohibitive construction, preventing the least change in the means of using dedicated property, the number of cars passing through different places in the city would be much less. There would be more walking and less riding, which, after all, is perhaps not a bad idea for those who can afford to walk.
After a street has been dedicated — after the city has given a grant to one company to run its road through that street — the city can grant the use of a part of a track to another company, upon compensation. Railroad v. Railroad, 44 La. Ann. 485, 10 South. 888.
With reference to the old ordinance (No. 15,080), it cannot have the effect of depriving succeeding councils of the power of legislating so as to obtain the purpose intended from the first. If the city has the authority to construct a belt line — a right, in so far as the city is concerned, no one seems to question — it has the right, by necessary implication, of adopting other and'additional means to carry out the right. They are left, to some extent, to means adapted to ends; and to ends, to the extent proposed, “they are not confined to one mode of operation.” Dillon on Municipal Corporations (3d Ed.) vol. 1, § 91.
As relates to the provision for arbitrating differences in management:
The arbitration clause is intended, we take it, to be reasonably executed, and no interest should be heard to hinder the city from exercising sovereign control to that end. This is said only to the extent that it is necessary for us to pass upon the question of the reasonableness or unreasonableness of the ordinance. The policy of this clause is not before us for decision. It belongs to a distinct branch of the government. We are only to determine whether or not an ordinance is reasonable or unreasonable.
From that point of view, it does not appear to us that an ordinance is unreasonable that makes provision for arbitration to the extent and to the limit we have before mentioned.
With reference to security limit, and those clauses usually inserted in contracts to make things safe and to insure performance, here, again, something must be left to the discretion of the municipal branch of the government.
As relates to the-precautions usually taken in such matters, we are not to substitute our judgment to that of others whose duty it is to see that the interest in their charge is fully protected. We are not writing an ordinance, or accepting or rejecting an instrument submitted to our approval. Presented to us as an ordinance, we do not think it is fatally defective, as relates to the usual guaranty of performance. It is not, in our view, illegal on that ground.
An ordinance is not to be pronounced unreasonable because special guaranty was not required to make performance certain.
The general rule is that, where legislative or discretionary powers are conferred upon *926municipal corporations, courts will not interfere, unless in the exercise of such discretion there is fraud, manifest oppression, or gross abuse. Am. & Eng. Ency. of Law (2d Ed.) vol. 20, p. 1229.
Again, “The courts will not restrain,, control, or coerce the acts of a municipal corporation on the ground that they are merely unwise, extravagant, or erroneous, or a mistake of judgment.” Idem.
This ground is sustained in well-considered ■decisions. In Wells v. Mayor, 43 Ga. 67, with reference to the authority of the municipal corporation of the city of Atlanta, the court held that the mayor and council are the representatives of the people. The court saw “nothing in the loose charges made ■of fraud and corruption. * * * They are entirely too vague to justify any serious consideration by the court. Whether the contract be a wise one, or not, are matters exclusively within the cognizance of the body clothed by the charter with the exercise of the powers of the city. It would be an improper interference by the courts with the rights of the city for them to undertake to judge of the expediency of the contract. If its provisions were so shockingly outrageous us to furnish a strong presumption of fraud, that might be an element for consideration, but it would only be proper as a proof of fraud in connection with other proofs for the courts to inquire at all into the propriety of the contract.”
In the case before us for decision, there is no fraud or corruption charged — none shown.
“The presumption is in favori of the propriety and good faith of their conduct, and the complainant must make out a clear case ■of willful oppression, to obtain relief from the court.” Citing in support of the text Police Jury of West Baton Rouge v. Bozman, 11 La. Ann. 94; Avery v. Police Jury of Iberville, 12 La. Ann. 554.
The court further says in the cited ease:
“This presumption is founded in reason, as well as sustained by law. For the trustees of the town are chosen by the citizens for the expiress purpose of regulating the streets, and have better means of judging concerning the wisdom of a proposed improvement than a court is likely to obtain from the mere opinions of a witness. Their interests are generally identical with those of the property holders, and the public, and they have no motive to act oppressively or unjustly.” Reynolds v. Shreveport, 13 La. Ann. 429.
In a case in another jurisdiction upon the subject of the authority of a city, the court said:
“The ease must be a very clear one, and the subterfuge very plain, before that discretion can be regarded as having been exceeded so as to show an excess of power under a pretense of keeping within it. It is not the business of courts to act as city regulators, and, unless the authority of the representatives of the citizens has been exceeded, their action cannot be interfered with merely because it may not seem to other persons to be as wise as it might be.” Torrent v. Muskegon, 47 Mich. 117, 10 N. W. 132, 41 Am. Rep. 715.
Passenger stations are considered part of the system of railroads. The authorities upon the subject of railroads have not, so far as our research has gone, established a great difference between the grant, of a right of way to a railroad' and the grant of a right to occupy a public place for a depot. One is inseparable from the other. If a council has the right to grant the right of way to a railroad over the neutral ground of a street, it has the right to grant a place for a passenger station. There might a case arise in which there was unreasonableness or oppression in the selection made.
“Legislative grant of power prevents such structures from being a nuisance.” Dillon on Municipal Corporations (4th Ed.) §§ 383, 660.
It would then devolve upon the court to set aside and declare the grant null. If there is anything unreasonable or oppressive in this ordinance, as relates to the station on Basin street, it is not made evident by the testimony.
We concede that a passenger station is more cumbersome to a city than a railroad line. It is more of the nature of private property of the road. None the less it is used for the convenience and comfort of the public, and falls within the rules applying to railroads. The right to acquire the use of land for passenger stations is governed by the same law as when the purpose is to acquire right of way for a railroad.
The right of expropriation is the same on *928depots as for the road itself. Elliott, vol. 3, § 960, and other authorities there cited. “Railroads have the right to expropriate lands for the depots.” 1 Wood, p. 653.
They are on the same plane with railroads, subject to the exception before mentioned; that is, they shall not injure. They are to be considered as part of the railroad.
From that point of view, the rights of the parties, as relates to this station, are to be considered in the same light as railroads.
The streets and neutral grounds are owned by the public, and are not to be given away under any circumstances. There are neutral grounds used by railroads. The city authorities, under the law’s sanction, have granted the right on the ground that it was an improvement — “a street improvement”; “a physical improvement,” “open to the public use”; “a new and improved mode of riding and carrying.”
We are not responsible for these definitions in decisions in other jurisdictions. They only serve to illustrate the idea of improvement, with which we are not concerned. If an error has been committed, and too much was granted by the council to defendant, it is not made evident by the testimony.
We have special issues before us regarding a particular street. It serves the purpose of the discussion to excerpt the following from plaintiff’s petition:
“That said neutral ground of Basin street is dedicated to particular public use, as a neutral ground and as a part of Basin street, and that the council of the city of New Orleans is without power or authority to grant to the New Orleans and San Francisco Railroad Company, or any other railroad company, the right to construct, maintain, and operate a passenger depot thereon, or the right to occupy or use for any private purpose, or in any exclusive way or manner, said neutral ground; that said council is without power or authority to change the destination of said neutral ground from the particular public use to which it has heretofore been dedicated, except by a two-thirds vote of the members thereof, to some other public use.”
Plaintiff, in his petition, denies the council’s authority to give away the right, and sets forth different grounds in support of his denial. We agree with plaintiff, as expressed in his petition, that the council has no right to give anything. We also agree with plaintiff that the right cannot be granted for a private purpose. But our research has not resulted in our finding any well-considered decision in which it was held that such an enterprise as here mentioned is a private and not a public use; and therefore- we are unable to agree with plaintiff’s conclusion, based upon the idea that defendant’s is a private enterprise, such as mentioned in Act No. 108,. p. 167 of 1902.
Should we grant the mayor’s contention that it is “private use,” our conclusions would have to be different, but law and authority constrain us to hold that it is “public use.”
The petition (that portion quoted) alleges-that a change of the destination of the property may be made upon a two-thirds vote. The petition, in another part, also alleges that the ordinance was adopted by a two-thirds vote. We do not attach the greatest importance to the allegation, for, after all, the issue is one of right vel non. No question, however, that under this allegation there is a possibility of making some change in use of property, against which change, in argument, plaintiff contends.
It cannot be under section 87 of the charter, as amended by Act No. 108, p. 167, of 1902, which requires grants to be advertised, says plaintiff; but, on the contrary, his contention is that Ordinance 1615 falls within the purview of section 86 of the charter. Plaintiff further contends that railroad companies are, as to their property, income, and profits, private corporations, and as such they conduct private business, within the meaning of section 86 of the charter, as amended by Act No. 108, p. 165, of 1902.
We will not go over that ground again, and content ourselves with referring to article-272 of the Constitution, ordaining that railways are public, and the companies common carriers, while section 86 of the act of 1902 relates exclusively to the conduct of private business.
A careful consideration of Act 108 of 1902 has led to the conclusion that neither section 86 nor section 87 could have application to an interstate road.
This being our conclusion regarding the *930law cited supra, we have been led to inquire whether the defendant had any standing as a corporation under any law.
Section 689 of the Revised Statutes of 1876 certainly has the appearance of the commencement of authority in the council, as it reads: “No railroad * * * shall be constructed through the streets » * * without the consent of the municipal council.”
With reference to this “consent,” as expressed in the cited section, this court said in Railroad v. Watkins, 48 La. Ann. 1556, 21 South. 199, “Cons.ent only was necessary to grant the privilege of a right of way to a railroad company beyond the city limits;” citing- the article in question.
Article No. 131, p. 227, of 1902, grants to the council “the power to authorize .the use of streets.”
In Railroad Company v. City, 46 La. Ann. 529, 15 South. 157, Justice McEnery, organ of the court, said: “As the road of plaintiff is not a street railway, the city council had the power to grant the franchise.”
Further in the same decision:
“The city of New Orleans can, as a matter of right, refuse to grant the authority for a passage through its streets of a railroad. It can also demand a price for the privilege. But it can also, as a matter of right, if it deems the exercise of the power reasonable and proper, grant the right of way to a railroad extending its lines into other territory, without a compensation in money, but other considerations.” Railroad Co. v. City, 46 La. Ann. 527, 15 South. 157.
This decision was quoted from approvingly and affirmed in Railroad Co. v. Watkins, 48 La. Ann. 1550, 21 South. 199.
An ordinance creating contractual obligations is to go through the same process, in matter of its adoption, as others. After it has been finally passed over the veto, it becomes a law. The required vote puts an end to its defect on the ground of want of signature.
It is not because an ordinance has the characteristic of a contract that it must more particularly be signed. This is not the case of an ordinary contract between the chief executive of the city and one with whom he enters into a contract, but a public ordinance, adopted as all others are adopted.
Rehearing denied.