contract of lease for the purpose of carrying out the provisions of the second section of this ordinance.

"Sec. 6. Be it further ordained, etc., That the right of way, franchises, and privileges herein and heretofore granted to the New Orleans Pacific Railway Company are and were granted on condition and in consideration that the said grantee shall permanently

front to connect with the Belt road at Louis-
iana avenue, and to connect at Jackson street
with tracks heretofore authorized to be con-
structed between Jackson and Julia streets
by section 3 of ordinance 6695, administra-
tion series, adopted November 9, 1880, and by
ordinance No. 6732, same series, adopted De-
cember 3, 1880, provided that between Louis-
iana avenue and Jackson street the trains of
said company shall be run only between sun-establish its terminus within the city limits,
set and sunrise on said track, except in case
of emergency and necessity beyond the rea-
sonable control of the company.

expense

and shall maintain said terminus during the existence of the charter of said company, for which period the said franchises, rights of way, grants, and privileges shall last and continue; and should the said railway company at any time hereafter remove its terminus from within the city limits, then this grant shall cease and terminate and be without force and effect from the date of such removal; and the further condition that the construction work within the city limits shall be executed under the direction and supervision of the city surveyor, and completed to the satisfaction of the administrator of public improvements and the administrator of commerce; and the further con

"Sec. 4. Be it further ordained, etc., That the said New Orleans Pacific Railway Company, its successors and assigns, shall have the right, and the same is hereby conferred for the term of its charter and from and after the expiration of the existing lease of the city wharves, to inclose and occupy for its purposes and uses, that portion of the levee batture, and wharf in the city of New Orleans in front of the riparian property acquired or to be acquired between Thalia and Terpsichore streets, and to erect and maintain thercon at its Own such ferry facilities, wharves, piers, ware-dition *that said railway company shall con-[324] houses, elevators, yards, tracks, depots, stations, sheds and other structures as shall be necessary and convenient for the transfer of cars, engines, passengers, and freight, and in the transaction of its business. No vessel shall occupy or lie at such wharves without the consent of said company or its successors or assigns, or discharge or receive cargo thereat, and all vessels lying at or using said wharves by such consent and on the business of the company shall be exempt from the payment of levee or wharf dues to the city of New Orleans.

"Any vessel lying at these wharves with [323]the consent of the company, but not on its business, or not for the purpose of discharging or receiving treight or passengers to or from said company as a carrier, shall be liable to the city for usual wharf or levee dues.

"Any vessel using said wharf to receive any freight not coming to or going from said company as a carrier shall pay usual wharf age dues to the city.

"In consideration of the permission herein given the company will build three hundred feet of new wharf at such point between Terpsichore and Jackson streets, for the city, as the administration of commerce may indi cate, and will pave Pilie street between Thalia and Terpsichore streets, and Terpsichore street between Pilie and Front with square blocks of granite or with blocks of compressed asphalt, and keep the same in good order. "The rights conferred by this section shall not be held to interfere with the rights of the city to police any part of the river front.

"Sec. 5. Be it further ordained, etc., That the mayor be, and he is hereby, authorized and directed to enter into a proper notarial

struct or control a line of road, ready for public use, from a crossing of the Mississippi river to its designated terminus in this city, within two years from the promulgation of this ordinance."

The New Orleans Pacific Railway Company, on June 20, 1881, entered into a written agreement with the Texas & Pacific Railway Company, a corporation organized under the laws of the United States, by the terms whereof the New Orleans Pacific Railway Company consolidated itself with the Texas & Pacific Railway Company on the terms and conditions specified in the agreement, "by granting, bargaining, selling," etc., "unto the Texas & Pacific Railway Company all the franchises, corporate rights, or privileges of the New Orleans Pacific Railway Company, together with its track, roadbed, buildings, rolling stock, engineer's tools, bonds, stocks, grants, privileges, property (real and personal), and every right, title, and interest in and to any franchises or property, real or personal, and all rights of every name and kind in which the New Orleans Pacific Railway Company had any right, privilege, or interest, situated and being in the state of Louisiana or in the state of Texas, or elsewhere, it being declared by the agreement that the object of the agreement was to so merge the rights, powers, and privileges of the New Orleans Pacific Railway Company into the Texas & Pacific Railway Company under its own chartered name and organizathat the Texas & Pacific Railway Company tion should, without impairing any existing right, exercise in addition thereto, all the powers, rights, privileges, and franchises and own and control all the properties that the New Orleans Pacific Railway Company then exercised and owned, or by its charter and by-laws it had the right to exercise, own or control."

Thereafter, on July 11, 1882, the city council adopted ordinance No. 7946, as follows: "An Ordinance Supplementary to Ordinances 6695, 6732 and 6938, Administration Series, Granting certain Rights to the New Orleans Pacific Railway Company and its Assigns, and Providing for the Selection of a Site for the Claiborne Market. [325] *Whereas by section 2 of ordinance 6695, administration series, a right was given to the New Orleans Pacific Railway Company, or its assigns, to locate, construct, and maintain an extension of its railroad through Claiborne street, with a right to construct a passenger depot on the neutral ground of Claiborne street, at or near the intersection of Claiborne street with Canal street, with a proviso that should it become necessary for the building of the depot or laying tracks to remove the Claiborne market, then the New Orleans Pacific Railway Company, or its assigns, should rebuild the same at their own expense on such lots as the city shall designate; and

1883, the company demanded from the city
surveyor lines and levels for a track on the
river front from Louisiana avenue to Jack-
son street, and the city surveyor not fur-
nishing them, instituted suit June 11, 1883,
in the civil district court for the parish of
Orleans, where the same is still pending, to
compel the city surveyor by writ of manda-
mus to furnish such lines and levels. The
company also paid $1,000 rent for the two
years ending March 8, 1882 and 1883, under
an alleged lease of the batture in front of the
upper city park and made a tender of $500
for rent under said alleged lease for the year
ending March, 1984, and acquired by private
ownership four squares of ground adjoining
the upper city park, two squares fronting the
river and two in the rear thereof.

The record showed that the railroad company did not establish its terminus in the rear of the city of New Orleans at the place designated by ordinance 6695 of November 9, 1880, and referred to in ordinance 6732 of 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 the rear of the city therefore, where the proposed terminus was to be located under and in accordance with the provisions of the city ordinances, which have already been stated. And the record also disclosed that instead of making Westwego its terminus on the west bank of the river, the[327] railroad was prolonged nine miles further down the bank of the river to a point designated as Gouldsboro; and this latter point being approximately opposite the foot of Thalia street on the east bank of the river, wharves and inclines were constructed at Gouldsboro, whence the traffic of the road was carried across the river to the foot of Thalia street in the city of New Orleans, where depots and structures have been established by the company.

"Sec. 1. Be it ordained by the council of the city of New Orleans, that the administrator of improvements, the administrator of commerce, and the administrator of waterworks and public buildings, be, and they are hereby, authorized and directed, within sixty days from the passage of this ordinance, to select such lots as may be needful and proper for a new site for said market; and when such selection shall have been made they shall deposit a proces verbal thereof in the office of the administrator of waterworks and public buildings.

"Sec. 2. Be it further ordained, That when ever said company or its assigns shall find it necessary to remove said building it shall be rebuilt on said lots so selected and as prescribed in said original ordinance.

"Sec. 3. Be it further ordained, That in crossing the new canal under its charter, and according to the said ordinances, the said railway company, or its assigns, shall do so by means of a proper drawbridge." [326] The company also sent its officers with certain city officers in the summer of 1882 to inspect lots thought suitable at that time for the Claiborne market, when the removal of the market might be decided upon; and stated by its officers that the lots would be purchased, the market taken down and another market put up, but that if this was not satisfactory to the city, the city should remain silent for a while, because if it were known the railroad wanted the lots, too much would be asked for them. In the summer of

On the 15th of April, 1884, the city council
adopted an ordinance, No 685, council series,
as follows:

"An Ordinance Repealing certain Sections of
the Ordinance No. 6938, A. S., Granting
Privileges to the New Orleans Pacific Rail
way Company.

"Be it ordained, That § two (2) of the ordi-
nance No. 6938, A. S., passed March 1881,
granting to the New Orleans Pacific Railway
Company a lease of the Upper City Park bat-
ture property, be, and the same is, hereby re-
pealed and revoked."

June 16, 1886, the city council adopted an ordinance, No. 1828, council series, as follows: "An ordinance repealing certain rights granted to the New Orleans Pacific Railway Company under ordinanc~ 6695, A. S., adoptled November 9, 1880; No 6732, A. S., adopted

and

December 3, 1880; No. 6938, adopted March | a passenger depot on the neutral ground of[329) 29, 1881; No. 7946, adopted July 11, 1882; Claiborne street, near Canal street, and to remove the Claiborne market, be declared and decreed, and its right to the lands of said Park batture, under the second section of ordinance No. 6938, be declared and decreed; and its right to have lines furnished by the proper oflicial of the city for its route from Louisiana avenue to Jackson street, along the river front, under the third section of said ordinance, be declared and decreed and specifically enforced.

"Whereas the city of New Orleans granted to the Pacific Railway Company the right to extend its tracks through Claiborne street to Canal, to erect a passenger depot on Claiborne street near Canal street, construct tracks from Claiborne street to and through Thalia street to the river; and

"Whereas the original grantee company has merged its identity with that of an alien corporation, which itself is now in the hands of a receiver appointed on the prayer of an alien corporation; and

"Whereas such rights were granted on various conditions which have not been complied with, and the delay for so doing has elapsed; and

"Whereas by the acts of said New Orleans [328]Pacific Railway Company such rights have been abandoned, and it necessary for the public good that Claiborne street, between Common street and the Old Basin, shall be used for steam and horse railway and depot purposes:

"Therefore, be it ordained by the council of the city of New Orleans, That all rights of way on Claiborne street, rights to establish a passenger depot on sail street, and rights to connect any steam or other railway by the New Orleans Pacific Railway Company through or on Claiborne street, or to erect any depot thereon, whethe racquired through or by the ordinances above enumerated or through or by any other ordinance of the council of the city of New Orleans, he and the same are hereby repeal ed and revoked."

That the city of New Orleans be enjoined and restrained from in anywise executing ordinance No. GS5 and ordinance No. 1828, council series, and from granting to any other person or corporation the rights sought to be taken away by said ordinances Nos. 685 and

1828.

The city of New Orleans filed its answer, November 1, 1886, which admitted the incorporation of the Texas & Pacific Railway Company; the incorporation of the New Orleans Pacific Railway Company; the contract entered into between the New Orleans Pacific Railway Company and the Texas & Pacific Railway Company, averring, however, the effect of said contract to be that the Texas & Pacific Railway Company was held and bound to all the obligations imposed upon the New Orleans Pacific Railway Company, and was affected by all the equities existing between the New Orleans Pacific Railway Company and the city of New Orleans; the appointment of the receivers; the adoption of ordinance No. 6695, on the 9th of November, 1880; ordinance No. 6732, on December 3, 1880; ordinance No. 6938, on Marcn 29, 1881; the failJuly 2, 1886, the receivers of the Texas & ure on the part of complainants to comply Pacific Railway Compary, and the Fidelity with the obligations imposed by said ordiinsurance 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 puball the property and franchises of the New Orlic use; and the legality of the repealing ordileans 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, the adoption by the city of New Orleans of or linance No. 6695, on November 9, 1880; of ordinance No. 6732, on December 3, 1880; of ordinance No. 6938, on March 29, 1881; the full and fair compliance by said New Orleans & Pacific Railway Company and the Texas & Facific Railway Company with the conditions imposed by said or dinances; the adoption of ordinance No. 7946; the repealing ordinance, No. 685, council series, adopted April 24, 1884, and No. 1828, council series, adopted June 8, 1886; the violation by the adoption of said ordinances of the contract created by ordinances Nos. 6695, 6732, and 6938, administration series, and prayed that ordinances No. 685 and No. 1828, council se.ies, be adjudged and decreed to be illegal and injurious to complainants, and be canceled, and the right of the Texas & Pacific Railway Company, under ordinance No. 6695, to lay its tracks and build

filed a supplemental bill which alleged that
under the ordinance set forth in the original
bill of complaint, the wharf of the Texas &
*Pacific Railway Company, its transfers and[330]
incline between Thali and Terpsichore
streets, at New Orleans, had been duly con-
structed and used for about five years, and
in like manner and during the same time the
tracks of said railway, connecting its trans-
fer facilities and its depots and sheds at its
Thalia street terminus, had been laid and used
in Pilie and Water structs, and along the
river front from Thalia street up to about
Race street; that it had become necessary
for the business of said railway to lay a
small spur track to connect said wharf above
the transfer slip with the said tracks on Pilie
and Water streets; that the complainants
had applied to the city surveyor for lines and
levels of said spur track; that the city sur-
veyor refused to grant said lines and levels

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
out submitting the question to the council;
that said resolution was illegal and a breach
of complainant's contract, and that interfer-
ence by the mayor of the city with complain-
ant's building said spur track was appre-

hended.

Upon this supplemental bill a restraining order was granted which, by agreement, was to stand as an injunction pending suit.

road down the river to Gouldsboro and there cross the river, it never acquired the right to enjoy the privileges above mentioned, and hence that the repealing ordinances are valid. Second, that even if the rights in favor of the company above mentioned were not 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 above 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 proposispar, 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 the city, at the point named in the original ordinance, was made a condition suspending the operation of the grant of the rights above de-stated, and argues that even if it be conceded that the location of the terminus at the point originally pointed out created a condition, it was not a suspensive but a resolutory one. Although it is admitted that the happening of a resolutory condition dissolves the contract, yet such consequences, it is asserted, do dition, and cannot be availed of by one of not arise from the mere happening of the conthe contracting parties of his own will, since before the resoiutory condition can be invoked it must be established by a suit brought that such condition has arisen and The assignments of error relate to three that the effect of its existence has been to subjects: 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 rights claimed by the railroad company by ordinances 6695, 6732, in virtue of § 4 of ordinance No. 6938.

On the 23d day of June, 1891, a final cree in favor of complainants, granting in full the prayer of their bill, was rendered.

From this decree the city of New Orleans appealed.

Mr. Samuel L. Gilmore for appellant. Messrs. W. W. Howe and J. F. Dillon for appellees.

[331] *Mr. Chief Justice Fuller delivered the opinion of the court:

The argument as to the first and second assignments is, that the right granted to the railroad company by ordinances 6695, 6732, and 6938, to extend its track from the point designated as its terminu, in the rear of the city along Claiborne to Canal, and there to build a passenger depot, as also the lease, which, to carry out the ordinance, empowered the railroad company to use the batture in front of the park, and to construct its railroad along the edge thereof through certain designated streets to the rear of the city, were all granted to the railroad company as accessory rights, depending for their existence upon the crossing at Westwego and the location by the railroad company of its terminus in the rear of the city. In other words, that these rights were given to the railroad company, subject to conditions precedent, or, to use the language of the law of Louisiana, subject to suspensive conditions. It is further contended: First, that in consequence of the failure of the railroad company to cross at Westwego

court has the power to obviate the effect of
the condition by giving further time to per-
form the act from which the condition is
claimed to have arisen, if, in its judgment,
the equities of the case so require.

The question which first arises is, Was the
right of the railroad company to the prop-
erty in front of the park and to the track
on Claiborne street, including the construc-
tion of a passerger depot on Claiborne near
Canal, subject to suspensive conditions? The
Louisiana Civil Code provides as follows:

"Art. 2021. Conditional obligations are such as are made to depend on an uncertain event. If the obligation is not to take effect until the event happen, it is a suspensive condition; if the obligation takes effect immediately, but is liable to be defeated when the event happens, it is then a resolutory condition.

*Art. 2022. Conditions, whether suspensive[333] or resolutory, are either casual, potestative," or mixed.”

"Art. 2024. The potestative condition is that which makes the execution of the agreement depend on an event which it is in the

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 Louisiana Code says: