The opinion of the court was delivered by: Waite, C. J.
Henry C. Miller and R. T. Merrick, for appellant.
Thos. L. Bayne and John L. Cadwalader, for appellee.
This appeal presents the following case:
Prior to the year 1820 disputes had arisen between the city of New Orleans and certain proprietors of riparian estates as to the ownership of the batture or alluvion in front of the city on the Mississippi river. In compromise of these disputes the proprietors surrendered to the city all their claims to property within certain boundaries.
In 1869 the legislature of Louisiana undertook, by act No. 26 of 1869, to grant to the New Orleans, Mobile & Chattanooga Railroad Company, now by change of name the New Orleans, Mobile & Texas Railroad Company, 'the right to locate, construct, maintain, and use a passenger depot, with offices and apartments suitable for its legitimate business, upon that part or portion of the levee or streets and grounds in the city of New Orleans bounded by Canal, Delta, and Poydras streets, and a line parallel to and 150 feet easterly from Delta street; and for the construction of a freight depot, and for other purposes of its legitimate business, to inclose and occupy the blocks of grounds, parts of streets, and portion of levee in said city bounded by Girod, Water, and Calliope streets and a line parallel to and 290 feet easterly from Water street, provided said company shall not inclose or occupy that part or portion of the blocks of ground within said last limits which is the private property of individuals until said company has acquired the title thereto; and said company shall thereafter, if requested by said city, extend the wharf in front thereof equal with the present wharf in front of the northerly corner of the outer block within said limits, recently sold by said city and now owned by said company.
The validity of this act was disputed by the city, and suits were brought by the company in a state court to establish the grant. These suits resulted in judgments, which, as the company claimed, confirmed its title. The city denied that such was the effect of the judgments, and attempted to tear down and destroy the fences and other structures of the company. Thereupon the company, on the eighth of July, 1874, brought another suit to enjoin the city. This suit resulted in a decree by the circuit court of the United States for the district of Louisiana on the eleventh of June, 1878, allowing the injunction prayed for. From that decree the city, on the thirtieth of July, 1878, appealed to this court, and the appeal was docketed on the sixteenth of December following.
During the pendency of the suit in this court the legislature of Louisiana passed act No. 133 of 1880, creating a board of liquidation of the city debt, 'for the purpose of liquidating, reducing, and consolidating the debt of the city of New Orleans.' By this act it was provided that the board thus created should 'have exclusive control and direction of all matters relating to the bonded debt of the city of New Orleans,' and authority to issue new bonds of the city, to be exchanged for old at the rate of fifty cents of new for one dollar of old. Section 5 of that act is as follows:
'Sec. 5. That it shall be the duty of the city authorities, as soon as possible, after the organization of the board of liquidation of the city debt, to turn over and transfer to the said board all the property of the city of New Orleans, both real and personal, not dedicated to public use; and the board of liquidation shall be, and is hereby, empowered and authorized to dispose of said property on such terms and conditions as may be deemed favorable; the proceeds of such sale or sales to be deposited with the fiscal agents of the board at credit of 'city debt fund."
No new bonds were ever issued by the board of liquidation under his authority, and the city never actually transferred to the board any of the batture property. Neither did the board ever assume control of such property. A reason given for this by the president of the board, and suggested by the counsel for the appellant in his argument, is that fears were entertained that if property not dedicated to public uses should be actually separated and set apart from that which was, judgment creditors of the city might levy their executions and subject such as was thus shown not to be required for public use to the payment of their judgments.
On the twenty-third of June, 1882, act No. 20 of 1882 was passed by the legislature of Louisiana, 'to incorporate the city of New Orleans, provide for the government and administration of the affairs thereof, and to repeal all acts inconsistent and in conflict with its provisions.' Sections 8, 28, and 78 of this act are as follows:
'Sec. 8. The council shall also have power * * * to authorize the use of streets for horse and steam railroads, and to regulate the same; to require and compel all lines of railway or tramway in any one street to run on and use one and the same track and turn-table; to compel them to keep conductors on their cars, and compel all such companies to keep in repair the street bridges and crossings through or over which their cars run; to lay off and sell in lots or squares so much of the batture, from time to time, as may not be required for public purposes; but the right of accretion or to future batture shall never be sold.
'Sec. 28. That all the rights, titles, and interest of the city of New Orleans, as now existing, in and to all lands, tenements, hereditaments, bridges, ferries, streets, roads, wharves, markets, stalls, levees, and landing places, buildings, and other property of whatever description, and wherever situated, and with all goods, chattels, moneys, effects, debts, dues, demands, bonds, obligations, judgments and judgment liens, actions and rights of actions, books, accounts, and vouchers, be, and they are hereby, vested in the city of New Orleans, as incorporated by this act.
'Sec. 78. All laws in conflict, inconsistent, or contrary to the provisions of this act, be, and the same are hereby, repealed.'
By act No. 58 of 1882, passed June 30, 1882, entitled 'An act to authorize the city of New Orleans to renew and extend payment of her outstanding bonds, other than premium bonds, to provide the rate of interest on the bonds as reduced or extended, and authorize the levy of a tax to pay the same,' the board of liquidation was 'authorized and empowered to extend the bonded indebtedness of said city, other than premium bonds, outstanding at the passage and ...