New Orleans Republican., 1873-06-25

THE RAILROAD GRADE ON ST. CHARLES
STREEr.-The City Council. having form
ally notified the Carrollton Railroad Com
nany that the grade on st. Charles street
must be lowered, waited patiently for
response Of some kind. None came further
than an acknowledgment. that the notltca-
.ion had been received. 1t becoming evi.
dent that the company did not intend to
comply with the ordinance, the papers were
handed to the City Attorney for immediate
action. Mr. Lacey, after due deIoeration
and investigation. furnishes the following
sp.Hior: o,,,o,
June "a. 1873
Eo.. James Iewis Administrator OF Improvements:
SIR have noted the contents Of your
appreciated favor Of the sixteenth instant.
and have carefully reviewed the several
documents Herewith transmitted.
A municipal corporation possesses an
.nherent power and authority to grade and
;Inprove the streets lying whiting its muni'
cipal limits. and this inherent power in the
sity Of New Orleans is uneCulvccally sup
ported and strengthened by an express
provision of the city charter.
Moreover, the power to grade ana I'M
prove streets, like other legislative powers,
is a continuing one, unless the contrary be
indicated: and consequently j. may be exer'
sised from time to time as the wants OF the
apunicipal corporation may require. VI the
necessity or expediency OF its exercise, the
governing body Of the corporation. and not
She courts are the judges. &C..
Smith VS.. Washington, 20 Howard, 80:
O'Connor vs., Pittsburg, Is Pa, ls7; Marcy
rs. Indianapolis. II Ind. at.; Furman vs.
street. IL Wend.. 649 iiefierman vs.. st.
Louis. IS No, 65l: Markham vs. Mayor, :3
Ga, 4O2: Gall vs.. Cincinnati, Is ONO, 5e3;
and Dillon on Municipal Corporations. s..
s;3.
The righ: Of the city 20 force the execu'
.iou of the work contemplated by resolu.
.ion No, 1894, Administration series. can
cot be disputed; and. such being the case,
the question naturally arises. how is that
eigh: 10 be exercised!
The answer to this ip:crrcGatory is two
so.i: ;udcially. or through the :nstrumen'
salty of legal proceeding. TOR that puG'
vose TO be instituted in a court OF competent
jurisdiction, and extra .udlclally. or 0y
means of the power possessed by the NUM-
e!pal authorities to preven. and abate
nuisance. being the power referred TO by
the Supreme Court of Louisiana in Dauphn
IS. Mayor. l Martin, lSi. and Heber: ys.
henson, = An. 40. wherein II was held
that municipal corporation, without the
institution OF judicial proceed,hg' may
pull down and remove houses and obstruc'
'ions in the public streets without oeing
Gable to the owner therefor.
A judicial proceeding for an abatement OF
.he nuisance is attended with no risk. but
great delay: while the extra judicial pro-
cess is short, sharp and decisive, and unac'
companied with liability, except tor wan
tonness, oppression or malice in exercising
:he power which the municipality undoubt'
cdly possesses.
Should the matter be again referred 20
sue. hope specific instructions relative TO
;he mode of proceeding will be given.
have the honor to remain yours, e.c.,
GEORGES S. LACEY. City Attorney.
IN glancing over the contract entered
into between the city and the Carroilton
railroad on the fifteenth of May. 1866, the
following points seemed to be pertinen: 10
:he question at issue: =,
The .paving of the streets where the
same are already paved shall be taken up,
:he streets shall be graded to the level TO
be established by the City Surveyor, etc.
The cutters shall also be repaved so as to
conform to the grade to be esta bhshed for
he railway and to the entire sa tistact!on OF
she City Surveyor. =.
And for the violation Of any ordinance OF
the Common Coupei! now exis ting or tina: