Morris v. Municipal Gas Co.

• Decision Date: 25 May 1908
• Docket Number: 16,678
• Citation: 46 So. 1001,121 La. 1016
• Court: Louisiana Supreme Court
• Parties: MORRIS v. MUNICIPAL GAS CO. et al

46 So. 1001

121 La. 1016

MORRIS v. MUNICIPAL GAS CO. et al

No. 16,678

Supreme Court of Louisiana

May 25, 1908

Rehearing Denied June 26, 1908.

Appeal from Civil District Court, Parish of Orleans; George Henry Theard, Judge.

Action by George E. Morris against the Municipal Gas Company and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Henriques & Duchamp, for appellant.

Hall &amp Monroe, for intervener Horatio Lange.

George Washington Flynn and Edwin Thomas Merrick, for appellee Municipal Gas Company.

Samuel Louis Gilmore, City Atty., and Henry Garland Dupre, Asst City Atty., for appellee city of New Orleans.

NICHOLLS J. BREAUX, C.J. and MONROE, J., concur.

OPINION

NICHOLLS, J.

The issues between the parties to this action being set out at length by the judge of Division "E," who rendered judgment herein, we copy his judgment in full. It was as follows:

"It is averred by plaintiff in his petition that he is a real estate taxpayer of the city of New Orleans, and resides at No. 1,858 Tulane avenue; that his property is assessed for taxation, and that asphalt pavement has been laid at the expense of front properties on Tulane avenue and in front of his residence; that he has a pecuniary interest that said pavement be not illegally torn up and damaged and the free use of said street impaired; that he is pecuniarily interested in seeing that the funds going into the city treasury from the sale, privileges, and franchises should be as large as possible; and that he will suffer personal injury in that his pavement will be illegally torn up and his burden of taxation increased, if the mayor of the city of New Orleans is permitted to enter into a contract with the Municipal Gas Company to carry out the ends and purpose of Ordinance No. 3,621, New Council Series.

"Plaintiff further avers that said ordinance is null and void because the council of the city of New Orleans was without authority to make such grant, the Legislature of the state of Louisiana having previously granted an exclusive monopoly for the laying of pipes and mains, and the making and vending of gas in the city of New Orleans, to the Crescent City Gaslight Company by Act No. 97, p. 216, of the session of 1870, as amended by Act No. 106, of the session of 1873 approved July 10, 1873 (Acts 1874, p. 5), for a period of fifty years from April 1, 1875, and that therefore the action of the city council of New Orleans was ultra vires same being in contravention of paragraph 1, § 5, art. 1, of the Constitution of the United States.

"Plaintiff further avers that even if the city council of New Orleans was vested with the proper authority to make such grant, and the giving of such franchise did not and does not conflict with the monopoly previously obtained by the Crescent City Gaslight Company from the Legislature of the state of Louisiana, then the said ordinance is null and void because it grants to the Municipal Gas Company a franchise for laying pipes, conduits, and mains in, under, and through the streets, highways, and public places of the city of New Orleans, and the said ordinance was not published for sixty days and was not adjudicated to the highest bidder in accordance with section 87 of the city charter, as amended by Act No. 108, p. 165, of the Session of the General Assembly of the state of Louisiana for the year 1902, approved July 7, 1902, and plaintiff further shows that, if the said ordinance had been advertised and sold as provided for by the city charter, the city of New Orleans would have obtained a large per centum of the gross receipts of the grantee, and would annually have received a sum far in excess of the two per cent. on gross receipts to be paid by the Municipal Gas Company to the city of New Orleans under the terms of said ordinance; and the said additional sum could be applied to necessary public improvements.

"Plaintiff's prayer is for a preliminary injunction restraining the mayor from signing and executing any contract under said ordinance with the Municipal Gas Company, and for judgment in due course perpetuating the injunction, and declaring it null and void. No objection having been interposed by defendants when the rule nisi came up for trial, the preliminary injunction against the mayor was duly issued.

"Horatio Lange, another real estate owner and taxpayer, intervened and joined in plaintiff's prayer, averring that ordinance 3,621, New Council Series aforesaid, is null and void for the following reasons, to wit:

"First. Because it purports to grant to the Municipal Gas Company a 'utility to become public on terms,' and a 'contract covering the performance or discharge of a public duty or function' which, under section 87 of the city charter, as amended by Act No. 108, p. 165, of the Session of the General Assembly of the state of Louisiana for the year 1902, can only be sold after publication in the official journal for a period of sixty days to the highest bidder, and that none of the formalities provided in said section 87 have been complied with.

"Second. If it could be held that the agreement or franchise to vend fuel gas for heating purposes is not, under section 87, a 'utility to become public on terms' not yet a 'contract covering the performance or discharge of any public duty or function,' but is a 'private business,' under section 86 as amended of the city charter, then intervener avers that said section 86 does not authorize the common council of the city of New Orleans to grant any privilege or franchise to transact private business and only purports to grant a privilege to use parts of the streets or public places in connection with the conduct of and as an adjunct to the transaction of such private business, and that the Legislature of the state has not delegated to the common council of the city of New Orleans in its charter or otherwise any power to authorize as a private business the manufacturing and vending of fuel gas for heating purposes, nor has it granted the said common council the power to permit the use of the streets and public places of the city of New Orleans for such private business.

"The defense that plaintiff and intervener are without right, interest, or authority to attack the validity of the ordinance aforesaid, because of any alleged conflict with the rights of the Crescent City Gaslight Company, or any of its successors or assigns, that the only monopoly conferred on said Crescent City Gaslight Company was that of making, distributing, and vending gas for illuminating purposes; that the privilege granted to the defendant company of making, distributing, and vending gas for fuel and heating purposes does not conflict with said monopoly by the propositions of section 86 of the city charter as amended by Act No. 108, p. 165, of 1902; and not by the provisions of section 87, also amended by said act; and, further, that the provisions of the former section have been fully complied with in the consideration and adoption of the ordinance in question.

"It is also specially pleaded by the Municipal Gas Company that whatever monopoly or exclusive right was at the time enjoyed by the Crescent City Gaslight Company was forfeited by the lease or transfer thereof by its successors, the New Orleans Gaslight Company to the New Orleans Lighting Company, without the consent or approval of the state of Louisiana, and that the monopoly, if still extant, does not embrace the fifth sixth, and seventh districts of this city. It is finally averred by the defendant company that a judgment against it would divest it...