
    No. 10,514.
    The State ex rel. City of New Orleans vs. New Orleans, City and Lake Railroad Company.
    Act No. 183 of 1888, which authorizes mandamus proceedings to coerce specific performances of contractual obligations in certain cases, is not unconstitutional.
    It is a general statute, remedial in character only, divesting no vested rights and impairing no obligation of contract.
    The want of necessary explanation on the part of an obligee, who imposed the conditions which were accepted, will not, when the terms employed are obscure and equivocal, aggravate the burden of the obligor; but the construction most favorable to the latter should be adopted; the more so when the construction is in accord with the mode of execution of the contract by the parties.
    A street is a space dedicated to public use, for the passage and circulation thereon of ordinary driven vehicles and animals, in cities and towns.
    A neutral or middle ground is a strip of land extending betweeu the streets, or thoroughfares, which is not only not used, but prohibited from being used, as a street, and which, not being thus used, does not practically form part of the street proper.
    Under a contract by a city with a railroad company, giving right of way, that the latter shall keep in good order and condition, from curb to curb, the streets, intersections, bridges, etc., through which its tracks pass, it can not bo claimed that the company is under the obligation of keeping in such condition streets on which its tracks do not pass and which extend alongside of, and border on, middle or neutral grounds, dividing them, comprised between curbs or external linos, and which do not form part of thoroughfares, on which vehicles usually circulate.
    The obligation exists only as to such streets and spots on which the tracks actually pass.
    
    APPEAL from the Civil District Court, Parish of Orleans. King, J.
    
    
      SamH L. Gilmore, Assistant City Attorney, for Plaintiff and Appellee :
    3. No default is required as a condition precedent to a suit for the specific performance of a contract. Arts. 1911, 1912,1926, 1927,1932, C. 0.; Reynolds vs. Yarborough, 7 La. 193; David vs. Spurlock, 3 An. 208; Railroad Company vs. Ganallx & Co., 18 La. 510. Pratt vs. Craft, 20 An. 291. •
    
      2. Putting in default is not required, even m damage suits, when there is an active violation of the contract. Erwin vs. Fenwick, 6 M. ST. S. 230; Morton vs. Pollard, 7 La. 174; Berje vs. Railway Company, 87 An. 470.
    3. Because a suit for a specific performance of a contractus brought in the form of a mandamus proceeding, no putting in default becomes necessary.
    4. Wherever the duty to be performed is of a plain and unequivocal nature, demand and refusal are not required anterior to a mandamus proceeding to compel its performance. High’s Extraordinary Legal Remedies, 203; State vs. City. 41 An. 165.
    5. Whenever the duty to be performed is of a public nature, no anterior dcihand and refusal are required. High’s Extraordinary Legal Remedies, pp. 14, 15; Radway vs. Briggs, 37 N. Y. 256.
    6. The president and officers of the respondent company in this ease have assumed positions tantamount to a refusal to do thejworlc required of the company.
    7. Formal demand was made upon the president of respondent company to do the work sued for in this case.
    8. Act 183 of 1888 allows respondent opportunity to make its defence, and is not therefore, a law depriving respondent of its property without due process of law. Kennard vs. Louisiana, 92 TJ. S. 480; Davidson vs. New Orleans, 96 U*. S. 97; Chicago Ins. Co. vs. Needles, 118 IT. S. 574.
    9. Act No. 183 of 1888 docs not impose upon the respondent corporation a special burden from which other corporations are exempt, in violation of the law of the land. It applies to all private corporations throughout the State having contracts with municipal and parish corporations throughout the State. State vs. O’Hara, 36 An. 96; Cooley’s Const. Lim., p. 390: State vs. Latlirop, 10 An. 402.
    10. Act No. 133 of 1888 is not a local ór a special law. State vs. Dillon, 35 An. 1144; People vs. Supervisors, 43 N. Y. 18.
    11. Act No. 133 is not a special law having the effect of changing the method of collecting debts or of enforcing judgment in a particular class of cases. It does not deal at all with debts, and the execution of a judgment for specific performance by the writ of distringas was provided anterior to its passage by Art. 1927, C. C., and Art. 686, C. I\
    12. Act No. 138 of 1888 does not [impair any of the obligations of defendant’s contract; it docs not even change the remedies the city liadfor the enforcement of the city’s rights thereunder. It only provides a more summary method for the application of these remedies. Tennessee vs. Sneed, 96 CL S. 73; Ourtisvs. Whitney, 13 Wall. 71; Walker vs. Whitehead, 16 Wall. 318; State vs. Bermudez, Judge, 12 La. 352; Baldwin vs. Bennett, 6 R. 809.
    13. A judgment which is not final cannot form the basis of res adjudicóla. C. C., Art. 3556, No. 31; EscurixvS. Daboval, 7 La. 579.*
    14. In order to maintain the plea of res adjudicates there must be an identity of parties, of capacity, of object and of cause of action. State ex rel. Collensvs. Jumol, 30 An. 861; Art. 2286, O. C.
    15. In the interpretation of agreements the words of the contract are to be understood in their common and usual signification, and the intent is to be determined by the words of the contract. O. 0., Arts. 1945, 1946.
    Buck, Dinkelspiel & Hart for Defendant and Appellant:
    
      On aína Foiwi on Proceeding.
    •Under the general laws and jurisprudence of the State “contract obligations” can not be enforced by means of tlie harsh and Nummary remedy of mandamus. 37 An. 589, City vs. Carrollton R. R. Oo.
    II.
    There is no law to authorize such a proceeding except AetNo. 133 of the Acts of the General' Assembly of 1888. If this act is unconstitutional from any cause whatever; or if to apply it to the instant case were to give it retroactive effect, which it can not have; or if it impairs the rights and obligations of a prior contract, the mandamus asked should be refused.
    III.
    1. If the city elects to avail herself of the provisions of the statute and proceeds by way of mandamus, the suit, although in substance a suit for specific performance of the obligations of a contract, becomes subject to all the forms of trial, pleading, necessity for special and specific demand and default; to rules and provisions of law governing proceedings of mandamus.
    2. Such a suit must be preceded by a definite and specific demand of the particular thing to be done — the doing of which is sought to be enforced by mandamus.
    
    3. Relator must allege and prove that such demand has been made.
    4. A petition which does not contain such allegation discloses no cause of action and should be dismissed.
    5. In a petition for mandamus the cause of action and the relief asked should be set forth with utmost clearness and particularity, because the defendant is forced to present all means of defence, whether of '“ exception ” or “ answer,” in his return; and where tlie petition is justly open to the exception of vagueness and want of specific and clearly defined demand, etc., such exception should bo maintained and relator ordered to amend or suffer dismissal.
    IV.
    1. Where in a contract between the City of New Orleans and a street railway company, and in the city ordinances which authorize the contract, a particular officer or officers arc designated, whose duty it is to supervise compliance with the stipulations of the contract and to give notice of the work to be done, the notice and demand necessary to sustain relator’s application for mandamus must proceed from such officer or officers.
    '2. "When the officer or officers so designated in the contract are officers of the city created by its charter, tlie law will presume that they are properly performing their duties and functions, and any notice or demand issuing from any other source will be held informal and illegal.
    .3. A “report” made in general terms upon order and instruction from a “special committee” of the City Council to such committee, by the surveyor, of the general condition of the streets, and whether the defendant company had complied with its obligations under its contract, is in no sense a “notice and demand” upon the company.
    4. Nor is the appearance, on notice, before this “ special committee,” of the officers of the corporation, a waiver of “notice and demand” preliminary to suit by mandamus.
    
    
      f>. The very nature of the proceeding, the object of which is to compel the doing of a “particular thing,” which must be set out in the final judgment, carries with it the incident necessities of both specific demand and specific allegations. As neither the one nor the other exists in this suit no evidence should have been received until the necessary and proper allegations were made.
    ON TIIE CONSTITUTIONALITY ON ACT 138 ON 1888.
    1. The act of the Legislature purporting to confer on municipal corporations the right to proceed by mandamus to enforce obligations arising from contracts with certain “ corporations,” is null, void and unconstitutional, as
    1. Falling within the prohibition of Art. 46, which provides that no special law shall be passed to change “the method of collecting debts or enforcing judgments in a particular class of cases.”
    2. The Act 188, providing this remedy against corporations only, and not against natural persons who have similar contracts with municipal corporations, is “ special ” or “ class ” legislation, in violation of the letter and spirit of Arts. 46 and 48 of the Constitution.
    '2. A law which substitutes the harsh,summary and exceptional remedy of enforcing* contract obligations, and which provides that the case shall be tried without jury, and in event of judgment that the sheriff of the court take possession of the property of defendant and execute the work ordered by mandamus, is not a law merely changing the remedy, but one taking away substantial rights and imposing* heavier burdens. It affects the real rights of contracting parties and can not be made retroactive upon contracts entered into before its passage.
    8. Such construction'and application of the law would impair the obligation of the contract, in violation of Art. 1, See. 10, No. 1, and Art. 1. Sec. 9, No. 8 of the Constitution of the United States, the supreme law of the land.
    On tiiic Mekits.
    1. Where the writ of mandamus is resorted to to enforce the performance of contract obligations, the evidence must be clear and specific, and the judgment directly responsive to it and the pleading. The writ can not issue in general terms; the act or acts to bo done must be distinctly defined and set forth.
    2. Under her contracts with the City of New Orleans the defendant company owes no obligations on streets-having a “ neutral ground” on which its tracks are laid beyond the “ curbs ” bounding such “ neutral ground.”
    8. The obligation in said contract to keep in repair * * * * “streets through which said tracks pass,” means the streets on which the tracks are laid.
    4. Where, during a period of over ten years since the date of the present contract, and under a prior similar contract of twenty-five years’ duration, no demand has ever been made that the contract stipulations imposed the duty to maintain roadways on both sides of “neutral ground” in good order and repair, such silence will be hold a construction of the meaning of an ambiguous clause adopted by the parties to the contract.
    6. When the terms of a contract are doubtful, the manner in which it has been executed furnishes a rule of interpretation. B. U. 0.1956.
    6. This part of the issue in the case, as to the liability of the company to do work on Canal street, lias been passed on by the Civil District Court, Division “ 0,” in favor of the defendant in the suit of the City of Now Orleans for the use of, etc., vs. New Orleans, O. and L. B. B. Co., and the judgment rendered in that case is pleaded as res adjudícala, to that extent herein.
    
      7. Whether this plea, technically, be sustained or not, the evidence, especially as embraced in the statement of facts proved in that case between the same parties litigant, sustains the defence that there is no obligation as to the streets bordering on “neutral grounds ” on which tracks are laid.
    8. The obligation to keep streets in repair, etc., assumed by the defendant under contract of October 2,1879, is a contract obligation, and can not be enforced by the harsh remedy of mandamus, unless that remedy was authorized by law when the contract was made.
    9. Where the contract contains stipulations as to the manner of its enforcement these constitute.the law between the parties, and are exclusive of other remedies. New Orleans vs. R. R. 0., 37 An. 589.
   The opinion of the court was delivered by

Bermudez, C. J.

The object of this suit is to compel, by mandamus, the defendant company, in specific performance of alleged contracts, to pht and keep in proper condition the streets, etc., through which its tracks pass within city limits.

In its return the company substantially pleaded that the allegations of the petition are too vague, general and indefinite; that the action is premature; that no proper demand was made to authorize the suit; that the act (No. 133 of 1888) under which the action is brought is unconstitutional for several reasons, one of which is, that it impairs the obligations of the contracts between the parties; that the charges preferred are unfounded; that it has always complied with all its obligations and continues to do so, etc.

From a judgment, overruling the preliminary defence and making the mandamus peremptory, for specified purposes, the company appeals.

In relation to the exceptions, it suffices to say, that the petition clearly discloses a valid cause of action; that there was a proper demand for compliance; that the writ itself is a putting in default, if any was necessary; that the statute attacked is not special or local, but general and remedial only; that it divests no vested rights, and impairs the obligation of no contract. It has already been evoked, and twice enforced. State ex rel. New Orleans vs. New Orleans and N. E. R. R. Co., 42 An. —.

So that the contention is reduced to an interpretation of the direct and assumed contracts, between the parties.

Under the terms of the contracts whereby the right of way was granted, the substantial obligation, assumed by the purchaser, and which is of moment in this controversy is, that the company would keep in good order and condition, from curb to curb, the streets and bridges through which the tracks pass.

The contention is not, whether the company is or not bound to-keep in such condition the streets, etc., on which its tracks pass, but rather, whether the company is or not under such obligations, as to streets, etc., on which its tracks do not pass, and which border on the sides of the middle or neutral ground, which separate them and on which its tracks are laid; such as the streets alongside the strip-of ground between them, on Oanal, Rampart and Esplanade streets in this city.

The theory on which this action is predicated rests on the assumption that the neutral or middle ground forms part of the street, and that the track of the company having been laid on it, they passthro ug the street itself; but the theory at once explodes when it is considered that the strip of ground does not form part of the street proper.

A street is a space dedicated to public use, for the passage and circulation thereon of ordinary driven vehicles, or animals, in cities or towns.

Such was surely the meaning attached to the word, before the time, when street cars were permitted to be run on the streets and such it must have been, in the contemplation of the parties, when they entered into the contracts propounded upon.

Indeed, the neutral or middle ground is not only not used, but is prohibited from being used, as a street, and, not being used thus, it can not be treated practically as a part of the streets, between which it extends. See Act 73 of 1876; 13 An. 320; 26 An. 362; 35 An. 1067; 36 An. 547; 41 An. —.

The evidence shows that, in the exercise of the right of way purchased, the company did not lay its tracks on the side streets themselves, but on the space dividing them, which does not form part of them, as a thoroughfare for the passage and circulation of ordinary carriages and vehicles.

It also establishes that the city has never opposed such use of such ground, and has never called on the company to do any work on such double streets; but that such work has always'been attended to by the^city at its own expense.

The terms employed are clear and free from doubt. Were they obscure or equivocal, the want of necessary explanation on the part-■of the obligee, who imposed the conditions which were accepted, should not render the burden more onerous; but the contention most favorable to the obligor should be adopted; the more so, when the mode of execution justifies this course. R. O. O. 1956, 1958; O. N. 1162.

A careful reading of the stipulation, coupled with the consideration of the interpretation placed upon it by the parties, forces the irresistible conclusion that the space, which in their intent, the company was to keep in good order and condition, is the route through and on which its tracks would pass, extending from curb to curb, or external boundary. No other reasonable signification can be placed on the agreement.

It is therefore apparent that the company is not bound, under its tenor, to perform any work beyond the curbs or lines within which are comprised the neutral or middle grounds, or strips of land, between the side streets on which its tracks have been laid.

The proof shows in what respects the company has been derelict as to ordinary streets, and to some extent as to intersections, bridges and neutral grounds which constitute the route through and on which its tracks pass.

The judgment of the lower court is correct, unless in that portion which makes the mandamus peremptory as to the streets or thoroughfares which extend on the sides and beyond the curbs of the strips of ground in question.

It is therefore ordered and decreed that the judgment appealed from he amended by striking therefrom that portion which imposes on the defendant company the obligation of keeping in good order and condition the sireets or roadways on the sides of the middle or neutral grounds on Canal, Rampart and Esplanade streets in this city, and by rejecting the demand in that respect, and that thus amended said judgment be affirmed at appellee’s cost.  