State v. Canal & Claiborne Railroad Company

• Decision Date: 21 June 1898
• Docket Number: 12,780
• Citation: 24 So. 265,50 La.Ann. 1189
• Parties: THE STATE v. CANAL & CLAIBORNE RAILROAD COMPANY, THROUGH JOSEPH H. DEGRANGE, PRESIDENT
• Court: Louisiana Supreme Court

24 So. 265

50 La.Ann. 1189

THE STATE v. CANAL & CLAIBORNE RAILROAD COMPANY, THROUGH JOSEPH H. DEGRANGE, PRESIDENT

No. 12,780

Supreme Court of Louisiana

June 21, 1898

Argued May 20, 1898

Rehearing Refused December 5, 1898.

ON APPEAL from the Sixth Recorder's Court of New Orleans Arnauld, J.

James J. McLoughlin, Assistant City Attorney, and Samuel L Gilmore, City Attorney, for City of New Orleans, Plaintiff and Appellee.

Clegy &amp Quintero, for Defendant, Appellant.

OPINION

WATKINS, J.

The defendant, through the instrumentality of its president, is prosecuted upon the charge of having wilfully and unlawfully violated City Ordinance No. 13,835, C. S., by failing to water its tracks on Claiborne and Elysian Fields avenues and other streets of the city which are traversed by its tracks, as required by said ordinance.

On the trial the defendant was found guilty and sentenced to pay a fine of twenty-five dollars, and in default of payment of the fine he was to suffer imprisonment for a period of twenty days in the parish prison, and from that sentence it prosecutes the present appeal to this court.

In the recorder's court the defendant, through counsel, filed the following demurrer to the legality of the ordinance, viz.:

1. Because the City Council was without power or right to enact such an ordinance.

2. Because the provisions of Sec. 1 of same are so indefinite and unreasonable that no person or corporation therein described is able to know what is commanded to be done in pursuance thereof.

3. Because the same is an attempt on the part of the municipal authorities to exert an unreasonable exercise of the police power, and if same be enforced it would be unequal and not uniform in its operation, "in that it compels, or would compel one class of persons using the public streets to perform a duty or service not required of other persons making a like use of the same streets."

4. Because it is unlawful and unreasonable "for the municipal authorities to transfer, or attempt to transfer a public burden to private persons or corporations; and that the aforesaid ordinance is an offer or an attempt to make certain persons or corporations perform a service or duty, which service or duty should be performed by the municipal authorities, or under their direction.

"And said ordinance does not require, or pretend to require the performance of such service or duty by all private persons or corporations in like situation."

5. Because said ordinance attempts to compel the performance of a service without adequate compensation; and if it is enforced, it will take the property and labor of a person or corporation for the benefit of the city without compensation, and without due process of law.

6. This assignment is about the same as last. The demurrer further assigns, that said ordinance is beyond the power of the City Council, and is violative of the provisions of the Constitution of the United States and of this State in this, viz.:

That the defendant railroad company "acquired by purchase the right to run its cars on certain streets in the city of New Orleans * * * and the right to maintain and operate its lines of cars upon certain specified and agreed conditions in the contract fully expressed, and the duty or obligation to water their tracks, as provided in Sec. 1 (said ordinance), No. 13,835, C. S., * * * forms no part thereof;" and that said ordinance is an attempted impairment of their aforesaid contract rights, and if enforced it will seriously impair the same.

It further assigns, that the necessity of effectually keeping the dust laid on lines of street car tracks, if such need there be, is one that "arises in the course of nature and is not a state or condition created or brought about by the operation of said street cars;" and consequently it is unlawful and unreasonable to impose upon a corporation operating street cars the duty of keeping the dust laid -- it having no relation to the operation of the street cars under its contract.

That if it be in the interest of the public that the dust on the street car tracks be kept down, it is unlawful and unreasonable, on the part of the City Council, to require the company to perform this public service.

This extended statement of the defendant's demurrer may be abbreviated and given more concisely in the following synopsis, thus:

1. That the ordinance is indefinite and unreasonable in terms; and an unreasonable exercise of the police power of the city is thereby contemplated.

2. That it is unequal and not uniform.

3. That it transfers a public burden to private persons.

4. That it requires the performance of a service without adequate consideration, and takes private property without due process of law.

5. That it is an impairment of its contract rights, in violation of the contract clause of the Federal Constitution.

6. That dust arises in the course of nature, and is not caused or created by the operation of its cars, and, consequently, the ordinance unwarrantably and unreasonably imposes that duty upon it.

On the other hand, it is the contention of the city attorney that the City Council, in the exercise of the police power which is vested in the city of New Orleans, has the right to enact ordinances so regulating the use of streets by electric railways as to compel them to keep their tracks in such condition as to prevent a nuisance, and to protect the health, convenience and comfort of its inhabitants.

That an ordinance which requires street car corporations to water their tracks so as to effectually keep down the dust thereon is definite and reasonable, and as such it is a valid and proper exercise of the police power.

His further contention is, that the police power of a city can not be alienated or bartered away by any contract, and, consequently, the city always retains the right to impose upon citizens and corporations -- particularly upon those exercising and operating public franchises -- the duty and burden of so conducting their operation and use as to promote the convenience and to protect the health and the comfort of the public; and it forms a necessary incident of the contract which is read into it.

That all persons, natural or artificial, are subject to the police regulations of the municipality in which they live.

Two things are conspicuous upon casual inspection of the ordinance, (1) that its provisions exclusively deal with corporations operating lines of street cars within the city of New Orleans, under franchises acquired from the City Council; (2) and does not deal with any contract right as such corporations have acquired from the city under their franchises.

The ordinance under consideration, confessedly and in terms, proposes an exercise of the police power under municipal regulation, and that alone.

The questions which arise are the following, viz.:

1. Is the ordinance indefinite, unreasonable, or lacking in uniformity?

2. Does it transfer a public burden to private individuals or persons; or take property without due process of law, or adequate compensation?

The ordinance is couched in the simplest form of words, viz.:

"Be it enacted, etc. That each and every company or corporation operating street car lines within the limits of the city of New Orleans shall water their tracks so as to effectually keep the dust on same laid" -- providing a penalty for its violation.

It is certainly neither indefinite or wanting in uniformity. It does not propose to take the private property of the corporation without due process of law.

After making the foregoing careful synopsis of the ordinance and the defendant's demurrer, our conclusion is, that the two questions for consideration are (1) whether the ordinance is unreasonable; and (2) whether it was an attempt to place a public burden on private persons.

We may well premise the discussion by referring to the provisions of a prior ordinance on the same subject matter bearing the number 12,911, C. S., which was examined by this court in State vs. New Orleans City & Lake Railroad Company, 49 An. 1571, as that ordinance and decision will serve to illustrate the one under consideration.

It is as follows, viz.:

"Be it enacted that hereafter it shall be unlawful for any person, firm, or corporation to operate any electric, trolley or other cars or trains on the streets of this city without providing in some reasonable manner for the sprinkling of the streets through which their cars run."

That ordinance contained a penal clause which is as follows, viz.:

"That any person, firm or corporation violating this ordinance shall be guilty of a misdemeanor and shall be subject to a fine of twenty-five dollars, or thirty days in the parish jail, or both, at the discretion of the Recorder," etc.

Ordinance No. 13,835, C. S., is an attempted reformation of Ordinance No. 12,911, C. S., so as to meet the interpretation which this court had placed upon it in the case cited. The difference between the two is radical in several respects:

1. The later ordinance does not provide, as the prior ordinance did, that it shall be unlawful for any company or corporation to operate an electric car on a street of the city without providing for "the sprinkling of the streets through which their cars run."

2. The later ordinance does not provide, as the prior ordinance did, that any firm or corporation violating its provisions should "be guilty of a misdemeanor."

3. The later ordinance simply requires that each and every corporation "shall water their tracks so as to keep the dust on same laid."

After paraphrasing the prior ordinance, our opinion speaks of its operation in this wise, viz.:

"The facts as developed by the testimony * * * are, that by reason...