Talbot v. Louisiana Highway Commission

• Decision Date: 02 November 1925
• Docket Number: 27304
• Citation: Talbot v. Louisiana Highway Commission, 159 La. 909, 106 So. 377 (La. 1925)
• Court: Louisiana Supreme Court
• Parties: TALBOT v. LOUISIANA HIGHWAY COMMISSION et al

106 So. 377

159 La. 909

TALBOT v. LOUISIANA HIGHWAY COMMISSION et al

No. 27304

Supreme Court of Louisiana

November 2, 1925

Rehearing Denied November 30, 1925

Appeal from Nineteenth Judicial District Court, Parish of East Baton Rouge; W. Carruth Jones, Judge.

Suit by William Harry Talbot against the Louisiana Highway Commission and others.Judgment for defendants, and plaintiff appeals.

Affirmed.

George Janvier, of New Orleans, and H. Payne Breazeale, of Baton Rouge, for appellant.

Percy Saint, Atty. Gen., and W. M. Barrow, Special Counsel, of Baton Rouge, for appelleeLouisiana Highway Commission.

Sanders Baldwin, Viosca & Haspel, of New Orleans (Rene A. Viosca, of Hammond, Curator Ad Hoc), for appelleesEli T. Watson, Oliver J. Anderson, Meredith C. Jones, and H. A. Morrison.

P. M Milner, of New Orleans, for intervener.

O'NIELL C. J. BRUNOT, J. and LAND, J., dissents.

OPINION

O'NIELL, C. J.

This is a suit to annul the contract by which the Louisiana highway commission granted a franchise to Eli T. Watson, Oliver J. Anderson, Meredith C. Jones, and H. A. Morrison, to construct and operate a toll bridge across Lake Pontchartrain.The contract is dated the 26th of February, 1925.It purports to be authorized by an act of the Legislature, Act 141 of 1924, p. 263.The plaintiff here challenges the constitutionality of the statute, for several causes, and contends that the contract is null for those and other causes specified in his petition.The district court dismissed the suit on an exception of no cause of action.The plaintiff has appealed from the judgment.

The Act 141 of 1924 is a general law, not a special or local law.It does not mention Lake Pontchartrain, or refer particularly to any body of water.

The first section of the act declares, in general terms, that, from time to time, as the Louisiana highway commission shall consider desirable or advisable, for developing and perfecting the state highway system, the commission is directed and empowered to let contracts, binding upon the commission and the state, to persons, firms, corporations, or associations of persons, for the construction, ownership, maintenance,3 and operation of bridges, viaducts, fills, trestle structures and approaches thereto.

The second section of the act declares that in each instance the highway commission shall decide whether the schedule of tolls submitted by any party applying for a franchise is fair to the public; and that the schedule, when accepted by the commission, shall be incorporated in the contract.

The third section of the act declares that every bridge, viaduct, fill or trestle, and approaches, to be constructed under contract with the highway commission, shall be constructed according to the standard of safety adopted by the commission, but that the commission shall not be required to approve the plans and specifications submitted by the party bidding for the contract, except in so far as such approval shall be necessary for the public safety.

The fourth section of the act declares that, so long as any such bridge, viaduct, trestle work, etc., shall remain the property of the contractor or his assigns, the state, or the highway commission, or any subdivision of the state, shall not permit the construction or operation of any other bridge, viaduct, fill, or trestle structure, etc., that shall conflict in any way with the terms of the contract; and that the state, or any subdivision of the state, shall not interfere in the maintenance or operation of such bridge, or viaduct, etc., that has been constructed, except so far as such interference may be necessary for the public safety or for compelling compliance with the contract.

The fifth section of the act declares that the highway commission shall have the right, at any time after 20 years from and after the completion of any such bridge, viaduct, fill, or trestle, etc., to buy it on the terms and conditions stipulated in the contract.

The sixth section, being the last section of the act, merely declares that all laws or parts of laws in conflict with or contrary to the provisions of the act are thereby repealed.

The first contention of the appellant in this case is that the statute, in so far as it undertakes to give the highway commission authority to fix rates, or to establish a schedule of tolls, for a toll bridge, is violative of section 4 of article 6 of the Constitution, giving to the Louisiana public service commission the exclusive right to supervise, regulate, govern and control the public utilities, and to fix the rates, fares, tolls and charges for commodities furnished or services rendered by the public utilities.

The answer to the argument is that the proposed toll bridge cannot be under the supervision, regulation or control of the public service commission, or be a public utility, before it is built.It is not necessary to decide now whether the bridge will be under the supervision of the public service commission when the bridge is built and opened to traffic; or whether it will require an act of the Legislature to declare it a public utility; or whether the Legislature will have the right to declare it a public utility and thereby put it under the supervision, regulation and control of the public service commission -- when the bridge will have been built and opened to traffic.If we assume that the public service commission will have authority to fix the rates or schedule of tolls for the bridge when it is completed and ready for traffic, there is no cause for the plaintiff or any other taxpayer to complain that the public service commission does not fix the rates, or approve the schedule of tolls, before the bridge is built.On the other hand, if we assume that the bridge will not be under the supervision, regulation or control of the public service commission, when the bridge will be built and in service, it is certain that the letting of the contract, the fixing of the rates or schedule of tolls, cannot be now under the supervision, regulation or control of the public service commission.

The functions of the public service commission are fixed -- and the extent of the commission's authority is defined -- in article 6 of the Constitution, in sections 4 to 7, inclusive.There is nothing in those provisions that can be construed as forbidding the Legislature to delegate to the highway commission the authority to make contracts granting franchises for toll bridges over navigable bodies of water, in connection with the public highways.On the contrary, section 19 of the same article of the Constitution declared that the Legislature should provide for the establishment and maintenance of a system of highways and bridges, under the supervision of the board of state engineers, until otherwise provided by law, and should provide for the regulation of traffic on the public highways.Accordingly, the Legislature did, by the Act 95 of 1921, p. 181, create the Louisiana highway commission and give it supervision and control over the establishment and maintenance of the highways and bridges, and the regulation of traffic on the highways.

The provisions of the Constitution defining the functions and authority of the public service commission, sections 4 to 7, inclusive, of article 6, do not, in terms, give the commission authority to supervise, regulate or control any and every concern serving a public want and called a public utility.It is true that section 4, after declaring that the commission shall have authority to supervise, govern, regulate and control all common carrier railroads, street railroads, interurban railroads, steamboats and other water craft, sleeping car, express, telephone, gas, electric light, heat and power, waterworks, common carrier pipe lines and canals (except irrigation canals), says: "and other public utilities in the state of Louisiana."But the language quoted means such other public utilities as the Legislature may place under the control of the public service commission, and such local public utilities as the electors of any city, town or parish may, by a majority vote, surrender to the control of the public service commission.That interpretation is expressed in the second paragraph of section 4, and in sections 5,6and7 of the same article.In the second paragraph of section 4 it is said that the authority of the commission shall include all matters connected with the service to be given or rendered "by the common carriers and public utilities hereby, or which may hereafter be, made subject to supervision, regulation and control by the commission."And in the same paragraph it is said that the right of the Legislature to place other public utilities under the control of the public service commission is unlimited.In the fifth section it is said that the orders of the commission, fixing or establishing any rate, fare, toll or charge, for any commodity furnished or service rendered or to be rendered "by any common carrier or public utility named herein, or hereafter placed under the control of said commission," shall remain in effect, etc.In the sixth section it is said:

"If any common carrier or public utility now, or which may hereafter be placed, under the control of the commission, shall violate any of the rates, tolls, fares, or charges, or orders or decisions of the commission," etc.

The idea was that there might be other public utilities -- other than those specified in section 4 -- that would not come under the control of the public service commission, without an act of the Legislature making it so.It was so said in Standard Oil Co. v. Louisiana Public Service Commission,154 La. 557, 97 So. 859.

By section 7 of article 6 of the Constitution, the supervision regulation and...