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Thereafter, on July 11, 1882, the city coun- 11883, the company demanded from the city
eil adopted ordinance No. 7946, as follows: surveyor lines and levels for a track on the
"An Ordinance Supplementary to Ordinances river front from Louisiana avenue to Jack.

6695, 6732 and 6938, Administration Series, son street, and the city surveyor not fur-
Granting certain Rights to the New Or- nishing them, instituted suit June 11, 1883,
leans Pacific Railway Company and its As- in the civil district court for the parish of
signs, and Providing for the Selection of a Orleans, where the same is still pending, to
Site for the Claiborne Market.

compel the city surveyor by writ of manda(325) "Whereas by section 2 of ordinance 6695, mus to furnish such lines and levels. The

administration series, a right was given to company also paid $1,000 rent for the two
the New Orleans Pacific Railway Company, years ending March 8, 1882 and 1883, under
or its assigns, to locate, construct, and main. an alleged lease of the batture in front of the
tain an extension of its railroad through upper city park and made a tender of $500
Claiborne street, with a right to construct for rent under said alleged lease for the year
a passenger depot on the neutral ground of ending March, 1984, and acquired by private
Claiborne street, at or near the intersection ownership four squares of ground adjoining
of Claiborne street with Canal street, with a the upper city park, two squares fronting the
proviso that should it become necessary for river and two in the rear thereof.
the building of the depot or laying tracks to The record showed that the railroad com-
remove the Claiborne market, then the New pany did not establish its terminus in the
Orleans Pacific Railway Company, or its as- rear of the city of New Orleans at the place
signs, should rebuild the same at their own designated by ordinance 6695 of November 9,
expense on such lots as the city shall desig 1880, and referred to in ordinance 6732 of
nate; and

December 3, 1880; that the company did not "Whereas, by ordinances Nos. 6732 and as stated or required in ordinance 6938 of 6938, administration series, certain rights March 29, 1881, make its terminus on the have also been granted to said company and west bank of the Mississippi river at Westits assigns with reference to the said Clai-wego, and there erect it wharves, inclines, borne street and to Thalia street, and the and structures, necessary for the purpose of company has built its road from Baton Rouge crossing the river at that point so as to reach to New Orleans, crossing Thalia street, and the east bank on the batture in front of the established its terminus in the city limits at City Park; and that the company did not Thalia street and the levee, and is preparing build its road from the batture along the also to cross from Westwego to the City edge of the park through the designated Park, and thence to Claiborne street; now, streets to the point in ile rear of the city therefore,

where the proposed terminus was to be lo"Sec. 1. Be it ordained by the council of cated under and in accordance with the prothe city of New Orleans, that the administra visions of the city ordinances, which have al. tor of improvements, the administrator of ready been stated. And the record also discommerce, and the administrator of water- closed that instead of making Westwego its works and public buildings, be, and they are terininus on the west *bank of the river, the[327) bereby, authorized and directed, within sixty railroad was prolonged nine miles further days from the passage of this ordinance, to down the bank of the river to a point desig. select such lots as may be needful and proper nated as Gouldsboro; and this latter point for a new site for said market; and when being approximately opposite the foot of such selection shall have been made they Thalia street on the east bank of the river, ahall deposit a proces verbal thereof in the wharves and inclines were constructed at office of the administrator of waterworks and Gouldsboro, whence the traflic of the road public buildings.

was carried across the river to the foot of
"Sec. 2. Be it further ordained, That when- Thalia street in the city of New Orleans,
ever said company or its assigns shall find it where depots and struc'ures have been es-
Decessary to remove said building it shall be tablished by the company.
rebuilt on said lots so selected and as pre- On the 15th of April, JES4, the city council
seribed in said original ordinance.

adopted an ordinance, NJ 085, council series,
"Sec. 3. Be it further ordained, That in as follows:
crossing the new canal under its charter, and "An Ordinance Repealing certain Sections of
according to the said ordinances, the said the Ordinance No. 3938, A. S., Granting
railway company, or its assigns, shall do so Privileges to the New Orleans Pacific Rail.
by means of a proper drawbridge."

way Company.
(326] "The company also sent its oficers with cer. "Be it ordained, That g two (2) of the ordi.

tain city officers in the summer of 1882 to nance No. 6938, A. S., passed March 1881,
inspect lots thought suitable at that time for granting to the New Orleans Pacific Railway
the Claiborne market, when the removal of Company a lease of the Upper City Park bat.
the market might be decided upon; and ture property, be, and the same is, hereby re-
stated by its officers that the lots would be pealed and revoked.”
purchased, the inarket taken down and an. June 16, 1886, the city council adopted an
other market put up, but that if this was not ordinance, No. 1828, coun..il series, as follows:
satisfactory to the city, the city should re- "An ordinance repealing certain rights
main silent for a while, because if it were granted to the New Orleans Pacific Railway
known the railroad wanted the lots, too much Company under ordinanc 0695, A. S., adopt-
would be asked for them. In the summer of led November 9, 1880; No 6732, A. S., adopted

December 3, 1880; No. 6938, adopted March a passenger depot on the neutral *ground off329)
29, 1881; No. 7946, adopted July 11, 1882; Claiborne street, near Capal street, and to re-
and

move the Claiborne market, be declared and “Whereas the city of New Orleans granted decreed, and its right to the lands of said to the Pacific Railway Company the right to Park batture, under the second section of or. extend its tracks through Claiborne street to dinance No. 6938, be declared and decreed; Canal, to erect a passenga depot on Claiborne and its right to have lines furnished by the street near Canal street, construct tracks proper official of the city for its route from from Claiborne street to and through Thalia Louisiana avenue to Jackson street, along street to the river; and

the river front, under the third section of "Whereas the original grantee company said ordinance, be declared and decreed and has merged its identity with that of an alien specifically enforced. corporation, which itself is now in the hands That the city of New Orleans be enjoined of a receiver appointed on the prayer of an and restrained from in anywise executing or. alien corporation; and

dinance No. 685 and oilinance No. 1828, "Whereas such rights were granted on va-council series, and from granting to any other rious conditions which have not been com person or corporation the rights sought to be plied with, and the delay for so doing has taken away by said ordinances Nos. 685 and elapsed; and

1828. "Whereas by the acts of said New Orleans The city of New Orleans filed its answer, 1328]Pacific Railway *Company such rights have November 1, 1886, which admitted the incor.

been abandoned, and it ič necessary for the poration of the Texas & Pacific Railway Compublic good that Claiborne street, between pany; the incorporation of the New Orleans Common street and the Old Basin, shall be Pacific Railway Company; the contract enused for steam and horse railway and depottered into between the New Orleans Pacific purposes:

Railway Company and the Texas & Pacific “Therefore, be it ordained by the council Railway Company, averring, however, the of the city of New Orleans, That all rights effect of said contract to be that the Texas & of way on Claiborne street, rights to establish Pacific Railway Company was held and bound a passenger depot on said street, and rights to all the obligations imposed upon the New to connect any steam or other railway by the Orleans Pacific Railway Company, and was New Orleans Pacific Railway Company affected by all the equities existing between through or on Claiborne street, or to erect the New Orleans Pacifi: Railway Company any depot thereon, whethe racquired through and the city of New Orleans; the appointment or by the ordinances above enumerated or of the receivers; the adoption of ordinance through or by any other ordinance of the No. 6695, on the 9th of November, 1880; or. council of the city of New Orleans, he and the dinance No. 6732, on December 3, 1880; ordisame are hereby repeal ed and revoked.” nance No. 6938, on March 29, 1881; the fail

July 2, 1886, the receivers of the Texas & ure on the part of complainants to comply Pacific Railway Compary, and the Fidelity with the obligations impused by said ordi. 'nsurance Trust and Safe Deposit Company, nances; the nullity of the lease of the batture iled a bill of complaint in the circuit court in front of the Upper City Park purported to of the United States for the eastern district be granted by ordinance No. 6938, and the of Louisiana, which alleged the incorporation nullity of the grant of the right to build a of the Texas & Pacific Railway Company un depot on the neutral ground of Claiborne der certain acts of Congress, the acquisition street, said batture in front of said park and by the Texas & Pacific Railway Company of said neutral ground being dedicated to pubail the property and franchises of the New Orlic use; and the legality of the repealing ordi. leans and Pacific Railway Company, the ap- nances 685 and 1828, council series. pointment of receivers of the Texas and Pa. On the 3d of February 1887, complainants cific Railway Company, he adoption by the filed a supplemental bill which alleged that city of New Orleans of or:linance No. 6695, on under the ordinance set forth in the original November 9, 1880; of ordinance No. 6732, on bill of complaint, the wharf of the Texas & December 3, 1880; of ordinance No. 6938, on *Pacific Railway Company, its transfers and(330) March 29, 1881; the full and fair compliance incline between Thalia and Terpsichore by said New Orleans & Pacific Railway Com- streets, at New Orleans, load been duly con: pany and the Texas & Pacific Railway Com struated and used for about five years, and pany with the conditions imposed by said or in like manner and during the same time the dinances; the adoption of ordinance No. tracks of said railway, connecting its trans7946; the repealing ordinance, No. 685, coun- fer facilities and its depots and sheds at its cil series, adopted April 24, 1884, and No. Thalia street terminus, had been laid and used 1828, council series, adupted June 8, 1886; in Pilie and Water streets, and along the the violation by the adoption of said ordi. river front from Thalia street up to about nances of the contract created by ordinances Race street; that it had become necessary Nos. 6695, 6732, and 6938, administration for the business of said railway to lay a series, and prayed that ordinances No. 685 small spur track to connect said wharf above and No. 1828, council seiies, be adjudged and the transfer slip with th, said tracks on Pilie decreed to be illegal and injurious to com. and Water streets; that the complainants plainants, and be canceled, and the right of had applied to the city surveyor for lines and the Texas & Pacific Railway Company, under levels of said spur track; that the city sur. ordinance No. 6695, to lay its tracks and buildl veyor refused to grant said lines and levels

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under a certain resolution of the council of and to locate its terminus as aforesaid, and September15, 1885, prohibiting him from giv- its election, on the contrary, to continue its ing any lines for such work in the street with road down the river to Gouldsboro and there out submitting the question to the council; cross the river, it never acquired the right to that said resolution was illegal and a breach enjoy the privileges above mentioned, and of complainant's contract, and that interfer. hence that the repealing ordinances are valid. ence by the mayor of the city with complain. Second, that even if the rights in favor of ant's building said «spui track was appre- the company above mentioned were not hended.

granted to it on a suspensive condition, they Upon these allegations a writ of injunction were clearly subject to a resolutory or diswas prayed for, restraining the city from in- solving condition arising irom the obligation terfering with complainants in the work of to cross at Westwego and to locate the terbuilding said spur track to connect the wharf minus in the rear of the city at the point abure the transfer incline between Thalia and designated in the original *ordinance, the con (332) Terpsichore streets with the tracks of the tention being that the failure to do so within railway between Thalia and Water streets, the period named in the ordinance authorized along the river front, and in the work of the city to treat the contract as dissolved strengthening and filling up said wharf and and pass the repealing ordinances in question. driving piling to reach the same with said | The railroad company meets these proposispur, and for a decree as prayed for in their tions by denying that crossing at Westwego original bill.

and the location of the terminus in the rear of Upon this supplemental bill a restraining the city, at the point named in the original order was granted which, by agreement, was ordinance, was made a condition suspending to stand as an injunction pending suit. the operation of the grant of the rights above

On the 23d day of June, 1891, a final de stated, and argues that even if it be conceded cree in favor of complainants, granting in full that the location of the terminus at the point the prayer of their bill, was rendered. originally pointed out created a condition, it

From this decree the city of New Orleans was not a suspensive but a resolutory one. appealed.

Although it is admitted that the happening

of a resolutory condition dissolves the conNr. Samuel L. Gilmore for appellant.tract, yet such consequences, it is asserted, do

not arise from the mere happening of the conMessrs. W. W. Howe and J. F. Dillon for dition, and cannot be availed of by one of appellees.

the contracting parties of his own will, since

before the resolutory condition can be in(331) 'Mr. Chief Justice Fuller delivered the voked it must be established by a suit opinion of the court:

brought that such condition has arisen and The assignments of error relate to three that the effect of its existence has been to eubjects: First, the batture or space in front dissolve the contract. That is, the claim is of the City Park, embraced in the lease made that under the law of Louisiana a dissolving by the city to the railroad company in exe- or resolutory condition does not operate upon cution of the terms of the city ordinance; the contract proprio vigore, but requires the second, the construction of a track on Clai judgment or decree of a court to give it effect, borne and Canal and the building on Clai- and that before finding a contract dissolved borne near Canal of a passenger depot; and, in consequence of a resolutory condition, the Lastly, the wharfage rigtits claimed by the court has the power to obviate the effect of railroad company by ordinances 6695, 6732, the condition by giving further time to perin virtue of § 4 of ordinance No. 6938. form the act from which the condition is

The argument as to the first and second claimed to have arisen, if, in its judgment, assignments is, that the right granted to the the equities of the case so require. railroad company by ordinances 6695, 6732, The question which first arises is, Was the and 6938, to extend its track from the point right of the railroad company to the propdesignated as its terminus, in the rear of the erty in front of the park and to the track eity along Claiborne to Canal, and there to on Claiborne street, including the construcbuild a passenger depot, as also the lease, tion of a passenger depot on Claiborne near which, to carry out the ordinance, empowered Canal, subject to suspensive conditions? The the railroad company to use the batture in Louisiana Civil Code provides as follows: front of the park, and to construct its railroad "Art. 2021. Conditional obligations are along the edge thereof through certain desig- such as are made to depend on an uncertain Dated streets to the rear of the city, were all event. If the obligation is not to take effect granted to the railroad company as accessory until the event happen, it is a suspensive conrights, depending for their existence upon the dition; if the obligation takes effect immecrossing at Westwego and the location by the diately, but is liable to be defeated when the railroad company of its terminus in the rear event happens, it is then a resolutory conof the city. In other words, that these rights dition. were given to the railroad company, subject

*“Art.2022. Conditions, whether suspensive 3384 to conditions precedent, or, to use the lan- or resolutory, are either casual, potestative, guage of the law of Louisiana, subject to sus or mixed.” pensive conditions. It is further contended: "Art. 2024. The potestative condition is Pirst, that in consequence of the failure of that which makes the execution of the agreethe railroad company to cross at Westwego ment depend on an event which it is in the

185

power of the one or the other of the contract | iana Code is the equivalent of the condition ing parties to bring about or to hinder.precedent at common law.

In defining the suspensive condition the The general principles in respect of condi. Louisiana Code says:

tions precedent are set forth sufficiently for "Art. 2043. The obligation contracted on the purposes of this case by Chief Justice a suspensive condition is that which depends Shaw in Proprietors of Mill Dam Foundery either on a future and uncertain event, or v. Hovey, 21 Pick. 440, cited by appellant. on an event which has actually taken place, Where the undertaking on one side is in terms witho'it its being yet known to the parties.” a condition to the stipulation on the other,

These provisions of the Louisiana Code are that is, where the contract provides for the like those of the Code Napoleon on the same performance of some act, or the happening subject. Arts. 1168, 1170, 1181.

of some event, and the obligations of the conIn Cornell v.Hope Insurance Company, 3 tract are made to depend on such performMart. N. S. 223, 226, the supreme court of ance or happening, the conditions are condiLouisiana said, in respect of conditions prece- tions precedent. The reason and sense of the dent:

contemplated transaction, as it must have "They are recognized and provided for by been understood by the parties and is to be our system of jurisprudence, and by every collected from the whole contract, determine other that has in view the ordinary transac- whether this is so or not; or it may be de.tions of men. The obligation is conditional termined from the nature of the acts to be when it depends on a future or uncertain done and the order in which they must necevent, says our Code. The event then must essarily precede and follow each other in the be shown to mal:e the obligation binding on progress of performance. But when the act the party against whom it is presented. For of one is not necessary to the act of the other, until it takes place, he is not bound to per- though it would be convenient, useful, or form what he has promised. Civ. Code, 272, beneficial, yet as the want of it does not pre . art. 68. There is an exception to this rule in vent performance, and the loss and inconregard to the dissolving condition. But in venience can be compensated in damages, relation to all others it is true, and it is a performance of the one is not a condition matter of no moment whether we say the precedent to performance by the other. The obligation is suspended until the condition nonperformance on one side must go to the is performed—or that the performance of the entire substance of the contract and to the condition must precede the execution of the whole consideration, so that it may safely obligation. Civ. Code, 274, art. 81 and 3; be inferred as the intent and just construcToullier, Droit Civil Francaise, liv. 3, tit. 3, tion of the contract that if the act to be perchap. 4, No. 472; Pothier, Traité des Ob. No. formed on the one side is not done, there is 202.”

no consideration for the stipulations on the “The effect of a suspensive condition, as its other side. See Cutter v. Powell, 2 Smith, name necessarily implies, is to suspend the Lead. Cas. [7th Am. ed.) 17, and notes. obligation until the condition is accomplished In examining the contract embodied in the or considered as accomplished; till then noth- ordinances it is essential to have in mind the ing is due; there is only an expectation that particular territory to which the ordinances what is undertaken will be due; pendente relate, and we therefore insert an outline conditione nondum debetur, sed spes est debi- sketch extracted from a map of the city of

tum iri.” Pothier, Traité des Ob. 218. New Orleans contained in the record. [334] *The suspensive condition under the Louis [See following page.) 186

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