New Orleans Water Works Co v. City of New Orleans

Decision Date30 November 1896
Docket NumberNo. 134,134
Citation17 S.Ct. 161,41 L.Ed. 518,164 U.S. 471
PartiesNEW ORLEANS WATER WORKS CO. v. CITY OF NEW ORLEANS
CourtU.S. Supreme Court

J. R. Beckwith, for appellant.

S. L. Gilmore and H. J. Leovy, for appellee.

Mr. Justice HARLAN delivered the opinion of the court.

This suit was determined in the court below upon demurrer to the bill. The question presented is whether the bill set forth a cause of action entitling the appellant, who was the plaintiff below, to the relief asked.

The case made by the bill is substantially as follows: By the fifth section of the act of the general assembly of Louisiana commonly known as 'Act No. 33, Extra Session of 1877,' it was provided that the New Orleans Water Works Company, in its corporate capacity, should own and possess the privileges acquired by the city of New Orleans from the Commercial Bank; that it should have, for 50 years from the passage of the act, the exclusive privilege of supplying the city of New Orleans and its inhabitants with water from the Mississippi river, or any other stream or river, by means of pipes and conduits, and for erecting or constructing any necessary works or engines or machines for that purpose; that it might contract for, purchase, or lease any land or lots of ground, or the right to pass over and enter the same from time to time, as occasion required, through which it might be necessary to convey the water into said city, or to distribute the same to the inhabitants of said city, and construct, dig, or cause to be opened any canals or trenches whatsoever for the conducting of the water of the rivers from any place or places it deemed fit, and raise and construct such dykes, mounds, reservoirs as might be required for securing and carrying a fully supply of pure water to the city and its inhabitants; enter upon and survey such lands as it might think proper, in order to ascertain the best mode of furnishing a supply of water; and lay and place any number of conduits or pipes or aqueducts, and cleanse and repair the same, through or over any of the lands or streets of the city, provided the same should not be an obstruction to commerce or free circulation.

The eighteenth section of the same act provided: 'That nothing in this act shall be so construed as to prevent the city council from granting to any person or persons, contiguous to the river, the privilage of laying pipes to the river exclusively for his own or their own use.'

While the New Orleans Water Works Company was proceeding under the above legislative enactment constituting its charter, the Louisiana constitution of 1879 was adopted. By article 258 of that constitution it was provided: 'All rights, actions, prosecutions, claims and contracts, as well of individuals as of bodies corporate, and all laws in force at the time of the adoption of this constitution, and not inconsistent therewith, shall continue as if the said constitution had not been adopted. But the monopoly features in the charter of any corporation now existing in the state, save such as may be contained in the charters of railroad companies, are hereby repealed.'

After this constitutional provision took effect the city council of New Orleans passed, November 15, 1882, an ordinance allowing Robert E. Rivers, the lessee of the St. Charles Hotel in New Orleans, 'the right of way and privilege to lay a water pipe from the Mississippi river, at any point opposite the head of Common or Gravier streets, through either of these streets to said hotel, its front and side streets, with all needed attachments and appurtenances, and to distribute said water through said hotel as said Rivers, or lessee, may desire from said pipes,' etc.

Rivers being about to take the benefit of this ordinance, the waterworks company commenced suit against him in the circuit court of the United States for the Eastern district of Louisiana, in which it sought a decree perpetually restraining him from laying pipes, conduits, or mains in the public streets of New Orleans for the purpose of conveying water from the Mississippi river to his hotel. The company proceeded in that suit upon the ground that it had a valid contract with the state and city for an exclusive right for the full term of 50 years from March 31, 1877, of supplying the city of New Orleans and its inhabitants, other than those contiguous to the Mississippi river, with water from that stream by means of pipes and conduits placed in the streets of that city, and that the obligation of that contract was protected by the constitution of the United States against impairment by any act of the state. Rivers claimed the right to proceed with the construction of pipes, mains, and conduits under the authority of the ordinance above referred to, which rested for its validity, as he claimed, upon the constitution and laws of Louisiana.

The bill filed by the waterworks company against Rivers was dismissed in the circuit court, and upon appeal to this court the judgment of dismissal was reversed, with the direction to enter a decree perpetually restraining Rivers, as prayed for in the bill filed by the waterworks compny. The opinion in Waterworks Co. v. Rivers, 115 U. S. 674, 6 Sup. Ct. 273, states fully the grounds upon which this court proceeded.

In 1882 the St. Tammany Waterworks Company was organized under the general laws of Louisiana for the purpose of furnishing and supplying the inhabitants of the city of New Orleans and other localities contiguous to the line of its works with an ample supply of clear and wholesome water from such rivers, streams, and other fountain sources as might be found most available for such purpose, by means of pipes and conduits. The company being about to take steps to obtain authority for bringing into New Orleans the waters of the Bogue Falaya river, in the parish of St. Tammany, and distributing the same by means of pipes, mains, and conduits placed in the streets of the city parallel with those constructed by the New Orleans Waterworks Company, the latter corporation instituted, in the circuit court of the United States for the Eastern district of Louisiana, a suit for an injunction to restrain the other company from carrying out its scheme. On appeal from the decree of the circuit court granting the injunction, this court reaffirmed the principles announced in the Rivers Case, saying: 'As the exclusive right of the appellee to supply the city of New Orleans and its inhabitants with water was not restricted to water drawn from the Mississippi river, but embraced water from any other stream, it is impossible to distinguish this case in principle from that of Waterworks Co. v. Rivers. Upon the authority of the latter case it must be held that the carrying out by the appellant of its scheme for a system of waterworks in New Orleans would be in violation of the rights of the appellee, and that the state constitution of 1879, so far as it assumes to withdraw the exclusive privileges granted to the appellee, is inconsistent with the clause of the national constitution forbidding a state from passing any law impairing the obligation of contracts.' St. Tammany Waterworks Co. v. New Orleans Waterworks, 120 U. S. 64, 67, 7 Sup. Ct. 405, 407.

The present suit was brought February 8, 1894, by the New Orleans Water Works Company against the city of New Orleans. The bill sets out the foregoing facts, and gives the history of the two cases to which reference has been made.

It further alleged that after the above adjudications the defendant continued to make and promulgate ordinances conferring upon individuals and corporations the right to lay pipes and mains through the streets and public ways of New Orleans to premises not contiguous to the rivers and waters with which said pipes and mains connected, from which the water supply is drawn and consumed within the city of New Orleans, such premises not being included in the proviso in the plaintiff's charter relating to the owners of property contiguous to said waters; that the defendant has continued to pass and promulgate such ordinances, and threatens to continue to do so in the future; that the ordinances set forth by copy, and contained in Exhibit C2, filed with and made a part of the bill, had been adopted and promulgated by the defendant in open defiance and disregard of the plaintiff's rights; that the plaintiff is advised and believes that the said ordinances set forth in said Exhibit C constitute but a portion of those of like character adopted and promulgated by the defendant that in nearly all instances where said ordinances have been adopted and...

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