48 La. Ann. 1550 | La. | 1896
The opinion of the court was delivered by
The conclusions we have reached in this case make unnecessary any examination of the question whether plaintiff, would be entitled to damages for the crossing of its tracks (laid upon the streets of the city of New Orleans), by another road, when such crossing was made under authority of the city authorities so to do, and if so, what the character of such damages would be, and whether plaintiff, if entitled to such damages, would be entitled to enjoin the second road from making the crossing until it should have previously made compensation to it for such damages.
We will confine ourselves to the single proposition whether under the law the Common Council of New Orleans had the power and authority to make the grant embodied in Ordinance No. 10,392. Plaintiff as a taxpayer maintains that it has not, and relies in support of that position upon the fourth section of Act 135 of 1888, which declares that the Common Council “ shall not have power to grant, renew or to sell or dispose of any street railroad franchise, except after at least three months’ publication of the terms and specifications of said franchise, and after the same has been adjudicated to the highest bidder by the Comptroller, as provided in Sec. 21 of the city charter.”
In discussing this question in East Louisiana Railroad Company vs. City of New Orleans, 46 An. 526, we said that the “ section of the act manifestly applied to street railway franchises, granted for the purpose of operating a road exclusively within the city limits. It did not apply to railroads carrying the mails, and transporting freight and passengers long distances beyond the limits of the city. The Legislature never intended, and in the nature of things such intention would be impracticable in execution, to cause railroads coming into the city from a distance to have the franchise of a right of way. No latitude of construction could
Section 4 of the act having made use of the word “ street railroad” in connection with the prohibition contained therein, defendant’s effort is to give such a definition to that term as would exclude the tracks authorized to be constructed and the road to be operated under Ordinance 10,392 from falling under the bar of the fourth section. The carrying of passengers within the limits of the city in contradistinction to the carrying of freight and passengers would seem to be, according to the defendant, the distinctive mark or characteristic of a street railroad. Our decision just cited is supposed to be decisive on that point, bub in this there is a mistake. It is true we allude to the fact that the East Louisiana Company carried “freight,” but that word has not the importance which defendant attributes to it — the next words “beyond the limits of the city,” and the words “ in their own cars,” have more signifi
Our decision substantially so declared. The view of this matter which we teok was similar to that taken by the Supreme Court of California in People vs. San Francisco & S. J. Railway Co., 44 Pac. 463.
Referring to a privilege such as was granted to the East Louisiana Company and a contention that, in order to make it valid it should have been put up at public auction, the court said “ that under the law ‘ they (the Common Council) can not grant the privilege to any but the highest bidder,’ and the highest bidder may be one who merely desires to prevent the road from passing through, and who can not make use of the franchise except for that purpose.
“ In fact the franchise sought is not the subject of competition. A particular railway company desires permission to construct its road through the town, or, in other words, to make a connection through the town of those portions of its road extending upon either side of the town to its opposite terminus. In the nature of things there can be no competition for this privilege. The builder of the road must build and operate the whole line. The right to do so is part of its corporate franchise, and how is it possible that any other person or corporation can acquire the right to construct or own and operate as a distinct and independent road and franchise that part of the road necessary to connect its two ends? This law was not intended to apply to such a case, but only to those cases. — of street railroads— in which bona fide competition is possible.”
If we compare the conditions existing at the time of the grant to the Eastern Louisiana road and the precise thing which it was authorized to do under its grant, with the conditions and circumstances existing when Ordinance No. 10,392 was passed, and with the objects and purposes to be accomplished under this last mentioned ordinance, it will be found they are essentially different. The very origin of the business which the new corporation is to transact is found in the ordinance itself — it is a local franchise, new, separate and distinct from any outside franchise, clearly valuable and for which the public would compete in money, if opportunity so to do
We do not think the General Assembly intended to use the words “ street railroad ” in any narrow technical sense, but that its evident purpose was to compel the city to make available for city purposes, and for the public benefit, in money, any local railroad franchise or privilege, which was valuable, and the amount to be derived from the granting of which was likely to be increased by being put up at public auction. So understanding to be the object of the lawmaker, it is our duty to give the statute a liberal construction in aid of its purposes, and this duty on our part carries with it an affirmance of the judgment appealed from, without the necessity of passing upon other questions raised in the controversy.
For the reasons herein assigned the judgment appealed from is affirmed.