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U.S. Supreme Court

New Orleans v. The Steamship Company, 87 U.S. 20 Wall. 387 387 (1874)

New Orleans v. The Steamship Company

87 U.S. (20 Wall.) 387


1. This Court has no power to reverse, on appeal, the imposition of a fine decreed by the circuit court for contempt of it.

2. A lease made July 8, 1865, during the military occupation of New Orleans in the late rebellion by the array of the United States, by the mayor of New Orleans (appointed by the general commanding the department), pursuant to a resolution of the boards of finance and of street landings (both boards appointed in the same mariner), by which it lease of certain waterfront property in the said city for ten years -- which lease called for large outlays by the lessee, and was deemed by this Court otherwise a fair one -- sustained for its whole term, although in less than one year afterwards (that is to say, on the 18th of March, 1866), the, government of the city was handed back to the proper city authorities.

3. The fact, that on the 9th of February, 1866 -- seven months after the lease was made -- a "general order" from the Military Department of Louisiana forbidding the several bureaus of the municipal government of the city, created by military authority, from disposing of any of the city property for a term extending beyond a period when the civil government of the city might be reorganized and reestablished in conformity to the constitution and laws of the state held not to have altered the case.

On the 1st of May, 1862, the army of the United States captured the City of New Orleans. It was held by military occupation until the 18th of March, 1866, when its government was handed over to the proper city authorities. The condition of things which subsisted before the rebellion was then restored. During the military occupation, it was governed by a mayor, a board of finance, and a board of street landings, appointed by the commanding general of the department. On the 8th of June, 1865, Hugh Kennedy was thus appointed mayor. On the 8th of July, 1865, as such mayor, pursuant to a resolution signed by the chairman of the board of finance and by the chairman of the board of street landings, both boards having been appointed in the same manner as himself, Kennedy executed to the appellees

Page 87 U. S. 388

a lease of certain waterfront property therein described. The lease made the following provisions:

The city granted to the company the right to enclose and occupy for their exclusive use the demised premises for the term of ten years.

The company was as its own expense to build a new wharf in front of the landing, as designated, with new bulkheads to retain the levee earthworks throughout the whole extent of the front assigned to them, they furnishing the requisite labor and materials, to keep the structure in complete order and repair until the termination of the lease, and then to deliver it to the city authorities in that condition, natural wear and tear only excepted. The company was to have the right, at its own cost, to construct buildings and sheds within the enclosed space as should be required for the transaction of their shipping and freighting business. The wharves were to be completed within a year from the date of the lease, of new materials, in a workmanlike manner, and to be protected by a line of heavy fender piles in front of sufficient size and strength to enable the largest of the company's ships to land and load at the wharf without damage. All the improvements, consisting of wharves, bulkheads, fender piles, sheds, buildings, and enclosures, were to be kept in good repair by the company until the expiration of the lease.

The lease was not to be transferred without the city's consent and, in case of default by the company to fulfill its engagements, the city had the right to annul it. At the expiration of the lease, all the improvements made by the company were to become the property of the city. The company agreed to pay an annual rent of $8,000 in monthly installments, for which it gave its promissory notes, one hundred and twenty in number.

The company expended more than $65,000 in making the improvements specified in the lease, and duly paid its notes as they matured down to the 11th of April, 1866, including the one then due.

On the 18th of that month, the city surveyor, aided by a

Page 87 U. S. 389

number of laborers, acting under an order of the city council, approved by the mayor, destroyed the fence or enclosure erected by the company. It had cost them $7,000. The company filed a bill and supplemental bill whereby they prayed for an injunction and damages. The notes for rent given by the company and then unpaid were delivered by the military authorities to the proper city authorities when the government of the city was transferred to the mayor and council. Those unpaid when this litigation was begun were held by the city then and for several months afterwards. They were tendered to the company by a supplemental answer in this case and deposited in court, where they still remained. The note last paid matured and was paid before the enclosure was destroyed. The city had not tendered back the money so paid, nor had it disclaimed the validity of the payment, nor had it tendered back the amount or any part of it, expended by the company in making the improvements, nor made any offer touching the subject.

In the process of the litigation, the then mayor, Clark, applied to the Third District Court of the city for an injunction to restrain the company from rebuilding the enclosure which had been destroyed, and an injunction was granted accordingly.

The company thereupon served a rule upon Clark to show cause why he should not be punished for contempt in taking such action in another tribunal. At the final hearing of the case, the city offered in evidence order No. 11 of Mayor General Canby, commanding the military department of Louisiana. The order was dated at New Orleans, February 9, 1866, and was thus:

"The several bureaus of the municipal government of the City of New Orleans, created by and acting under military authority, are enjoined and prohibited from alienating or in any manner disposing of the real estate or other property belonging to the city or granting any franchise or right to corporations or individuals for a term extending beyond such period as the civil government of the city may be reorganized and reestablished under and in conformity to the constitution and laws of the state, and

Page 87 U. S. 390

any alienation, disposition, or grant will be subject to any rights and interest of the general government which may be involved, and shall not extend beyond the time when the questions relative to those rights and interest may be determined by competent authority."

The court refused to receive the order in evidence, and the city excepted.

The following facts were agreed on by the parties:

"From the execution of the lease to the 18th of April, 1866, the company had been in peaceable possession of the demised premises and had performed all its obligations under the lease. No notice was given by the city of the intended demolition of the enclosure, and it was done early in the morning. Under its charter of 1856, the city had, before the war, leased portions of its wharves to individuals and companies, and had in one instance farmed out the collection of levee dues upon all the wharves by sections. The damages resulting from the destruction of the company's buildings &c., and the necessary employment, in consequence of this destruction, of additional watchmen amounted to $8,000."

At the hearing, the court decreed that Clark, the mayor, should pay a fine of $300 for the contempt of the court wherewith he was charged; that the city should be enjoined from interfering with the possession and enjoyment of the demised premises by the company during the life of the lease, and that the company should recover from the city $8,000 for damages, and that the city should pay the costs of the suit.

It was from this decree that the present appeal was taken.

Page 87 U. S. 392

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