mills which shall be assessed on the valuation of the property of said town, and then the amount is to be carried out by the clerk upon the general assessment roll, and collected with the other taxes. In the case at bar the electors have indicated that all the highway taxes in said town for the year shall be $5,000. That sum the electors had the power to vote, with or without the approval of the board of supervisors, as the law gives the electors the right to direct the supervisors to raise fifteen mills on the dollar valuation, provided such fifteen mills does not exceed the sum of $2,000 and seven mills on such valuation. In this case the $5,000 does not exceed such sum; and if it be technically necessary that the board should, after the vote of the electors, direct so many mills on the valuation to be raised as would make the sum of the $5,000 voted by the electors, they could do that by directing that amount to be apportioned upon the assessment roll; and, according to their answer, that was all that was intended to be done in this case.

There is no equity, therefore, in staying the officers of the town in collecting a tax which the law clearly authorizes, even though some of the formalities of the law may not have been complied with.

By the Court.-The order of the circuit court is reversed, and the cause is remanded with directions to that court to dissolve the injunction.

II. DISCRETIONARY ACTS.

WILLIAM C. HARRISON ET AL. V. CITY OF NEW ORLEANS ET AL.

Supreme Court of Louisiana. February, 1881.

33 La. Ann. 222.

The opinion of the court was delivered by

TODD, J. The plaintiff sued out an injunction against the mayor and administrators of the city of New Orleans and Common Council thereof to restrain them from passing or voting upon any ordinance "concerning the right of way to the New Orleans Pacific Railroad Company, or any company, to lay or erect tracks upon Thalia street, from Claiborne street to the levee, or authorizing said tracks to be laid in said streets."

The defendants excepted, on the ground that the petition disclosed no cause of action, which exception was sustained, the suit dismissed and injunction dissolved.

From this judgment the plaintiffs have appealed.

The judgment of the court a qua is correct.

In a recent case, decided by this court, Slaughterhouse Co. v. Police Jury of Jefferson, Opinion Book 53, folio 546, we held that no injunction would lie to restrain a municipal corporation from passing or voting on any ordinance. In fact, this principle is elementary. Municipal corporations are clothed with legislative power, to be exercised according to their discretion, with reference to all subjects pertaining to their administrative functions. To allow them to be impeded or restrained in the exercise of these powers, at the will or caprice of any one who may believe that such or such act or ordinance might prove injurious to him, would interfere seriously with and completely disarrange the administration of the government of a city or other municipal corporation.

Besides, injunctions are designed or intended to prevent actual or impending injuries, and prohibit acts from which such injury, loss or damage must inevitably result.

In this case non constat that the city will ever pass the apprehended ordinance. If it is passed, non constat that the railroad company, or companies, will ever accept its terms, or exercise the privilege or franchise granted.

The mere voting on or passing the ordinance in question cannot per se do the plaintiff any possible injury. It will be time enough to complain, if it be a subject for complaint, when steps are taken, or a beginning made, to put the ordinance into actual execution. The judgment appealed from is affirmed with costs.

DAVIS & PALMER V. MAYOR OF THE CITY OF NEW YORK. Superior Court of the City of New York. February, 1853. 1 Duer's Reports 451.

BOSWORTH, J. The plaintiffs move for an attachment against Oscar W. Sturtevant, one of the aldermen of the city, to arrest him for a contempt of court, in disobeying an injunction order made in this action by a judge of this court, on the 27th of December, 1852.

The judge to whom application was made for the injunction order, granted it on a verified complaint stating these facts to be true. Whether true or false is a question which we are not called upon to determine on this proceeding. To determine whether he had any jurisdiction to make the order, the complaint alone can be looked at, and everything contained in it and stated to be true in fact, must be deemed to be true for all the purposes of the question before us. It was on the facts stated in the complaint, and those only, that the order was made. If the judge, on those facts, had jurisdiction to make the order, it was the duty of those to whom it was directed to obey it, until they had procured it to be vacated. If he had jurisdiction to make the order, it is incontestable that it was his duty to make it, if the facts stated in the complaint are true.

According to the allegations in the complaint, the Common Council, against the objections of the mayor, were about to grant to Jacob Sharp and others, authority and power to construct and use a railway in Broadway, with liberty to charge each passenger five cents fare, on payment to the city of a license fee for each car run of only $20 per annum, while others stood ready to take the grant, and construct such a railway, and run cars with equal accommodations, and charge only three cents fare, and pay a license fee of $1,000 per

annum.

As between two such propositions, there can be no pretence for saying that in the exercise of an honest discretion the former might be preferred to the latter. It is not a debatable question whether a license fee of $1,000 per car per annum is more advantageous to the city than one of $20, nor whether the interests of the community will be better subserved by each citizen being compelled to pay a fare of three cents, instead of five. Therefore, even if it can be successfully maintained, that the common council had the power to make the grant which the resolutions purport to make, it would be a gross abuse of power, and a flagrant violation of public duty, to make the grant as it was made, instead of making it to those who would pay, at the least, an additional million of dollars for it into the public treasury, and exact from the passengers only three cents fare, instead of five. Is it incontestable that such an abuse of power and violation of duty cannot be restrained by any court?

The part of the charter or of any legislative act authorizing this to be done has not been pointed out. To make such a grant under such circumstances, even if the power exists to make any grant for the construction of a railway on the ground of its being "deemed

good, useful, or necessary for the good rule and government of the body corporate," or with a view to public convenience, would be a clear abuse of power and violation of duty.

No one can contend that it would promote public convenience, or tend to the good rule and government of the body politic, to compel every citizen to pay five cents fare, instead of three, or that the public treasury should be permitted to receive only $20 instead of $1,000 per annum for every car run.

If such an abuse of power and breach of trust cannot be restrained, then the making of the grant could not have been restrained, if the purpose had existed and been avowed, to make it for the nominal consideration of one dollar.

That it may be restrained, is incontestable, as I think, both upon principle and authority.

I am of the opinion that no objection either of form or substance, has been presented which can exonerate Mr. Sturtevant from the consequences of a deliberate and marked disobedience of the order, or which could furnish a respectable apology for the court for omitting to take such notice of it as is due to the interests of the public, and to a proper administration of justice in behalf of parties to suits, and of the whole community.

BRISTOL DOOR & LUMBER CO. V. CITY OF BRISTOL.

Supreme Court of Appeals of Virginia. June, 1899.
97 Va. 304.

HARRISON, J., delivered the opinion of the court.

At a regular meeting of the council of the city of Bristol, held February 4, 1896, a resolution was adopted declaring a certain building belonging to the appellant, known as "Buffum's Stalls,' to be a nuisance and the mayor of the city directed to proceed to have the same abated as such.

On the 19th of March, 1896, the mayor of the city informed the appellant in writing of the action of the council and notified it that, unless the building in question was removed in thirty days from March 20th, 1896, he would proceed to enforce the ordinance of the

BRISTOL DOOR AND LUMBER CO. V. CITY OF BRISTOL.

645

city, prescribing a fine of not less than one dollar, nor more than twenty dollars, for each day the building thereafter remained, and that, in addition thereto, he would have the same removed at the expense of appellant.

On the 20th day of April 1896, appellant applied to and obtained from the judge of the Corporation Court of the city of Bristol an injunction restraining the execution of the resolution of the city council, which injunction was dissolved by the decree appealed from on the 5th day of April, 1897, and the bill dismissed.

The bill states a clear case for the intervention of a court of equity, and the demurrer thereto was properly overruled.

The facts alleged, if true, show that appellant was about to suffer, at the hands of appellee, an irreparable injury in the destruction of its property. In such cases the law is well settled that courts of equity have jurisdiction to restrain the proceedings of municipal corporations, where those proceedings encroach upon private rights, and are productive of irreparable injury.

The question whether or not appellant's building is such a nuisance as called for its destruction, is one of the facts to be determined by the evidence. As already seen the case stated by appellee in its answer, which is all it attempts to prove, is that disorderly and lewd persons are allowed to occupy the building; that they are permitted to become filthy and unsightly objects, being a constant source of annoyance to all parties residing in their vicinity, and that the value of the surrounding property is thereby depreciated.

Had these charges been established the destruction of appellant's property would not have been justified. When a building is a nuisance only because of the uses to which it is devoted, the building itself cannot be pulled down to stop the nuisance.

We have thus far dealt with the case of the appellee, as stated in its answer. The proof fails to sustain the case stated

Without further commenting upon the evidence, it is sufficient to say that it satisfactorily shows that the building in question has been, in no sense, a nuisance since the ownership of the appellant.

For these reasons, the decree appealed from must be reversed, and this court will enter a decree perpetually enjoining the defendants in the court below from executing the resolution in question, of the council of the city of Bristol, directing the destruction of the building of appellant known as "Buffum's Stalls."

Reversed.