State ex rel. Ruddock Orleans Cypress Co. v. Knop

DAWKINS, J.

Relator seeks a writ of mandamus to compel the judge below to grant it a temporary writ of injunction restraining the civil sheriff for the parish of Orleans from executing a certain final judgment of this court ordering the removal of certain obstructions from a part of Stroelitz street in the city of New Orleans, said final judgment having been rendered in the case entitled Miss Edith M. D. Howcott v. Ruddock Orleans Cypress Company, 146 La. 318, 83 South. 586, No. 22345 on the docket of this court. In itS' application for the injunction petitioner alleged that on the 24th of February, 1920, and before the judgment of this court had become executory, the commission council of the city of New Orleans *1059had passed an ordinance, No. 5654, authorizing the exchange of 50 by 300 feet of Stroelitz street, between Dante and Dublin streets, for a strip of petitioner’s property of the same dimensions, forming a part of square No. 579, and abutting said Stroelitz street; that the ordinance had been promulgated according to law; that a temporary writ of injunction had been issued enjoining the passing of a proper act of transfer and exchange in conformity with said ordinance, but that the said writ had been subsequently dissolved on bond, and an appeal refused to the plaintiff in said writ, and that thereupon proper notarial act of exchange and transfer had been passed and entered into by relator and the said city by which the former had acquired the ground upon which the buildings and improvements are located which the said sheriff was about to remove and destroy ; that relator had been informed by the said sheriff and his counsel that no heed would be paid to said ordinance,- and that the obstructions would be removed. A rule nisi haying issued, with stay or proceedings in the lower court, the matter is now before us for determination.

Opinion.

The judgment of this court, in the case of Howcott v. Ruddock Orleans Cypress Company (No. 22345) 146 La. 318, 83 South. 586, is res judicata of the question of the existence of Stroelitz street at the point in question, and of the right of the plaintiff in that case to have the same opened to traffic. The only issue presented by the petition and application for the injunction was as to whether or not the city of New Orleans had the power and authority in any case to close and exchange part of an existing street for other property to be substituted in its stead. The power primarily rests in the Legislature to determine such matters, except that it cannot impair the obligations of contracts, or divest vested rights without first providing adequate compensation. Dillon on Municipal Corporations, §§ 1122, 1160, and 1163.

The powers of the city of New Orleans with reference to such matters is to be found in paragraph 1 of section 8 of Act 159 of 1912, as amended by Act No. 29 of 1918, and in paragraph 2 of section 50 of said Act 159 of 1912, as amended by Act 69 of 1916.

Section 8, par. 1, of said act, as amended, reads as follows:

“Sec. 8. The commission council shall also have power:
“1. To order the ditching, filling, opening, widening, and paving of the public streets, and to regulate the grade thereof, and, by a two-thirds vote to sell or change the destination of any street, sidewalk or property which is no longer necessary for the public use to which it was originally destined, or which is needed for public buildings or public utilities owned by the United Slates, the state of Louisiana or the city of New Orleans, or for the establishment of a raihoay union depot, or for the enlargement or extension of any hospital which the city of New Orleans utilizes in whole or in part, for the care and treatment of destitute persons.” (Italics by the court.)

Paragraph 2 of section 50, as amended, is as follows:

“Substitution of Streets. — In addition to the powers and authority granted to the commission council under any of the provisions of this charter, to sell or change the destination of any street or property under the conditions therein stated, the commission council shall also have power and authority by a two-thirds vote of all the members elected thereto, if the commission council deems the same for the public benefit, to allow the substitution of a new street or streets of equal or greater width for an existing street or existing streets, upon a petition signed by every person owning real property in the square or squares of which such existing street or streets are boundaries, the entire improvement to be made, and the extra cost thereof, including intersections, to be borne by the owners of real property fronting oh such existing street' or streets, all work to be done according to the plans to be approved by the commission council and upon lines and levels to be furnished by the commissioner of public property.”

*1061It would seem, from the above provisions of the city charter, that the commission council has the power, whenever a street is no longer necessary for public use, to abandon, close, or change its destination, or, by a two-thirds vote of all the members of the council, upon a petition signed by the owners of all the property in the square or squares forming the boundaries of the street proposed to be changed or substituted, to make the change or substitution. It is not necessary in the present instance, however, to decide whether one whose property is situated as is that of the plaintiff in execution, Miss Edith M. D. Howcott, must join in such petition, for the reason that, in our opinion, the relator has not, in its petition for injunction, made the necessary allegations as to: First, the manner in which the ordinance was adopted (by a two-thirds vote); and, second, that the same was petitioned for by the owners of all the property in the squares forming the boundaries of the street which it is proposed to change. The petition does not bring the case within the terms of the provisions of the charter of the city as quoted.

It was held in the case of Dauenhauer et al. v. Rossner, Clerk et al., 146 La. 349, 83 South. 647, as follows:

“Mandamus will lie to compel the issuance of an injunction, which has been refused by a judge of the first instance, where his duty to issue it is purely ministerial, and imposed in terms so specific and mandatory as to leave no element of discretion; but, whore the question of issuance vel non involves the exercise of judicial discretion, the action of the judge is not subject to control by mandamus, and that writ will not issue; the principle underlying that rule being that, while a superior may review and reverse the judgment of an inferior court, thereby substituting its judgment for that which it sets aside, it cannot compel an officer, whose oath and obligation oblige him to decide according 'to the best of his ability and understanding, to render a judgment which his understanding and conscience do not permit him to approve, and which the law contemplates that he shall render with such approval, and not otherwise.”

For the reasons assigned,' the alternative writ of mandamus is recalled, and the application dismissed at the cost of the applicant.