Dissenting Opinion.
McEnbry, J.I dissent from the decree in this case for the following reasons:
I will briefly refer to two grounds assigned by the respondent why •a mandamus should not be granted.
First. The nullity of the grant to the plaintiff corporation to change the route previously granted to it and to occupy the territory through which the respondent officer is required to give lines and levels; in other words, to locate the plaintiff’s street railway. Probably this would in itself not be a sufficient excuse, but it is to be considered in connection with the repealing of the ordinance granting said franchise, which is set out as an excuse.
But, if under the authority of State ex rel. Nicholls, Governor, vs. Shakespeare, Mayor, 41 An. 156, and Railroad Co. vs. Railroad Co., 47 An. 315, he has no right to question the validity of a law which defines his official duties, the same authority is good for the assertion that he must respect the law which repeals the former and imposes new duties upon him. He must conform his duties to the immediate law which defines them. It is the duties vel non of the officer under consideration. We have no right without all parties interested are made parties to break down the immediate law and look for his duties in the ordinance which was repealed by the City Council.
Act No. 135 of 1888 requires the franchises of all street railways to be offered at public sale, and adjudicated to the highest bidder. The Legislature has declared that these franchises are of value, and that the city is without power to gratuitously grant them.
My attention has been called to the case of East Louisiana Railroad Company vs. City, 46 An. 526. In that case the issue presented *681was whether or not the railroad was a street railway. If so the grant was null and void, notwithstanding the acceptance of the grant by the railway corporation and the money expended by it in perfecting the same. This was conceded in the case. The court found that the railroad corporation was engaged in transporting freight, passengers and mails beyond the city limits, and did" not come within the purview of said act. It was a railroad and not a street railway, and the City Council of New Orleans, without complying with the provisions of the act, could grant the franchise.
The same principle was decided in the case of New Orleans City & Lake Railroad vs. Dr. W. H. Watkins, 48 An. 1550. This court held that it was a street railway, and not a railroad, and the grant was null and void, because of a failure to comply with the provision of Act No. 138 of 1888.
There can be no acceptance of a grant null and void, which will give it validity, and no amount of money expended in utilizing it can have the effect of giving validity to that which has none.
In the instant case, the Crescent City Railroad Company was granted the privilege of changing its route and occupying parts of other streets to the distance of many squares. It is held by the court that the corporation accepted the grant and built its tracks to Carrollton avenue. If the City Council has the right to grant the use of one street to the distance of several squares, it has undoubtedly the right to extend the distance indefinitely. The act of the Legislature gives them no such right, but declares the occupancy of any street by a street railway company has a value for which it must pay the city. How easy it would be to defy the act of the Legislature, by a council complacent in its disposition to gratify corporations, by allowing a bid for a franchise on important thoroughfares, and then grant the privilege of occupying streets over which the franchise would be immeasurably advantageous and valuable to the corporation. The Crescent City Railroad Company got a valuable franchise without complying with the law, for which it paid nothing, and the City Council of New Orleans had the undoubted right to repeal it; to declare it null and void, and to require the corporation to occupy the territory to which it was legally entitled, and for which it paid the city.
Second. It is the repeal of the ordinance granting this franchise which the respondent pleads as against the-mandamus. It is a com*682plete defence. The question presented is the enforcing of a duty from an officer by mandamus, whether it contemplates a public duty which the officer is required to perform. Is there any public duty imposed upon the officer, the City Engineer, to give lines and levels to the plaintiff corporation?
There is at issue between the city of New Orleans and the plaintiff corporation the construction of a contract. The city is not a party to this proceeding. The attempt is to force the specific performance of a contract through the respondent officer. The City Engineer is called upon to interpret that contract, and to reach him and to enforce this quasi-judicial function upon him without the appearance of the city, this court declares the repealing act null and void, and proceeds by mandamus to compel the specific performance of a contract. What will be the results of the decree?
In the case of Crescent City Railroad Co. vs. New Orleans & Carrollton Railroad Co., 48 An. 856, we held that there was lacking legislative permission from the City Council for the plaintiff corporation to occupy the roadbed of the defendant corporation, the Carrollton Railroad; that there was no right to occupy said roadbed, unless the grant could not be enjoyed without it. We held that under the issues presented in that case there was unoccupied territory over which the company could place its track. The whole matter of the location was, in fact, left to the discretion of the City Council, which could at any time locate the proper route, even over the road of the Carrollton Street Railroad.
The decree in this case is that lines and levels shall be given over the neutral ground. Where is this neutral ground? There are spaces on each side of the Carrollton Railroad tracks. Where shall the city official locate the roadbed?
If on the upper side the City Council may say this is not the proper location, and by ordinance, which it has the undoubted right to enact, say the roadbed must be located on the lower side.
Suppose the officer locates the road over the tracks of the Carrollton Railroad Company, it will be in violation of the decree of this court, which said that no right in the Crescent City Railroad Company had been shown to authorize the occupancy of the Carrollton railway tracks. The decree, in its execution in this way, would require of the City Engineer to do that which we said in the last case referred to, the City Council had failed to do, and which *683failure prevented the Crescent City Railroad Company from going over the Carrollton Railroad tracks. The decree makes the City Engineer the instrumentality to supply deficiencies in the legislation of the council, and it also imposes upon him a quasi-judicial function in the interpretation of a contract between the city and the Traction Company.
The City Engineer gave the Crescent City Railroad Company lines- and levels on the upper side of the street. See cases ut supra. If the theory of the court is correct, that by accepting a gratuitous, franchise it became perfected, the Crescent City Railroad Company was bound by this location, for it occupied the same, and commenced! work along the location. But it was dissatisfied with the location, and subsequently procured an ordinance from the City Council, declaring that it should occupy the neutral ground of Carrollton avenue. See case of Crescent City Railroad Company vs. New Orleans & Carrollton Railroad Company, 48 An. 856. That neutral ground has not yet been ascertained. The council has failed to-designate it. The City Engineer is required by the decree to do so-The most serious complaint, however, against the decree, is that it makes the writ of mandamus the means of inquiring into and interpreting a contract and ordering its specific performance in order-to enforce the duties of a public officer, which are declared to be public, when, in fact, they arise out of a purely private obligation. The City Engineer, having at one time complied with his duty in giving lines and levels, he can not be compelled to perpetually perform his duty.
When the public officer is to be reached by mandamus, it must be when his duties, which are sought to be enforced are public, clear- and unequivocal, in which there is no latitude for the exercise of' discretion.
In my opinion this whole controversy should be left to the City Council of New Orleans.
Street railways are multiplying in a city in which the streets as a. general rule are narrow. These corporations are fighting for territory. Efforts are daily made to occupy streets and the roadbeds of other roads. Cars are sent over the tracks in such number as now to threaten danger to life and limb. The City Council should not be-hampered in its dealings with these corporations to prevent future-calamities.
*684A grave responsibility is now upon the Oity Council in dealing with the demands of these corporations, and the courts should reluctantly interfere, and set a rule for the guidance of the city authorities, which may prevent the application of a heroic remedy in the interest of the safety of the citizens.
There are times and there are occasions when vested rights give way to public safety. The time will come when the Oity Council will be compelled to give attention to the free use of the streets in removing the danger which is now so imminent to those who daily pass upon them.
The repealing ordinance recites, in my opinion, good reasons why the Orescent Oity Railroad Company should go back to its first grant. I think it should be respected on the ground that the council has the discretion to judge of the necessity of forbidding too many cars on a street, and the proper regulation of the same in the interests of the convenience and safety of the inhabitants.