New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-12-10

4 between Delta street and the river Missi.
. eippi, above Lafayette street to the line q
Montgomery's property, and all that POI
. ton Of the ,batture between Front stree
! and the river Mississippi, from 1afavett
+ street down to Canal street, shall be and i
t hereby vested in perpetuity and full owner
, ship in the said Municipality No. .. il
favor OF whom the appearers to this &C
hereby cede and relinquish forever all thei
, claims in aud to the said batture, rs well a
! all and every enlargement thereof or accre
3 ton thereto by new formations.
) The city now makes this stipulation on,
OF the grounds for claiming unlimited pow
er> OF control over the property in contest
| But this so-calied compromise is only re
ferred to because the counsel tor the cit,
lay so much stress upon it. 1t seems to be- il
the opinion OF the Supreme Court a deat
letter. though made upon the warrant of al
act OF the Legislature; 1n:the case Of Par
ish ct al. Us. Municipality No , ct al, 3 An.
las, the court held that the stipulation il
the compromise of 1890. forbidding the city
to ALLEVIATE or build upon the batture there
by dedicated to the public was not binding
upon the State, by whose sovereign power
the destination of this locus pub'icus might
be changed. The court said Chat it would
give full effect to the act of 1880, in SO far as
II changed the destination of portion OF
the batture, and authorized the sale o. it
but the act was held to be void in so far as ii
recognized any legal rights in favor of the
parties to the compromise of 1920 The effect
OF this decision was to hold that the So
called compromise of 1881 was of No effect
except in SO far as it Witnessed "A handsome
donation rom the municipality to the rep
Irsenta'.ves Of the parties to the conprO-
mise OF 1920
Without the ovcrshadowing authorization
.: an act of the Legislature. the city of New
Orleans has had no power, from 1920 until
| now, - dispose Of a square foot Of the bat
ture IN front of the suburb St. Mar. In the
case Of De La Bigarre. reference is made to
an ordnance passed by the municipality.
ordering IA portion Of the batture 10 be sold
The court characterized this act rs ylaring
| uSurpatlOn of power. from which no legal
effects could result, and added that it was
| proper to state that the attempt was not
peiseN cred in.
1t results from these considerations fiat
, the batture property in front o. the fau
and not the private property of the munich
pal corporation o. the city of New Orleans.
! c. c. rs
his .eads to an examination of the
power OF tho State. by legislative act, to
regulate the use of this .ocus tubhcus.
The counsel for the city of New Orleans
and the other defendants insist that the
municipal government has the sole power
OF controlling the uses of the streets,
quays and other public places within the
municipal limits that the legislative acts
divestlng the city of such control are laws
divesting vested rights and therefore void
In the brief for the city of New Orleans
occurs this expression I'VE desire TO keep
IN mind the distinction. which clearly exists,
between the public and the rig % Ner Or
.eons the one, if we may 50 term it, a iuri-
III No. HOW, I,x 81, -
the other municipal organization, incor-
pOrated by law" There Is. indeed dis
tinotion between the public and the MUM
clpaI corporation, but it ia much broader
and very different than is indicated in the
Language quoted. The public is constituted
OF the free peope-the citizens of the com
monwealth, and those strangers to whom
the commonwealth grants its freedom The
public IS not represented b.. any municipal
government, but by the authorities consti-
tuted ia the organization OF the State. If
this distinction is kept in mind. the legal
question now being considered will be
solved without difficulty.
There is no question but that the city of
New Orleans has the power to administer
the use OF the river banks and batture
us l.. rs The city may erect wharves
10 X. ol'j; may remove nlIisanccs OF oh
StrncfIons trom the streets or other io,i
p"biici Il NJ. Isl. / VI. 10. :, l.. -! SO the
ctty has full power to regulate and improve
the streets. aud may grant the hight of way |
to railways q; A. Si?) These powers
correspond to those vested in every incor
porated city III the land.
But the bower OF the municipal corpora |
ton to regulate tie Use of the streets and |
other public places is subordinated to the
paramount authority of the State. The
Tee OF the streets of a city, where il has |
been acquired ny the municipality ;.nder /
the right Of eminent domain becomes a |
pubic trust tor general purposes. and is
under the unqualified control of the I.rris-
laturc. and any legislative appropriation of |
1t to pubic Use is not to be regarded as
the appropriation of private property, so
a, 70 require COMPENSATION 10 the city or
homeopathy to render it constitutional"
Rehtleld on Railways, vol. /, y. 30 citing
, =. g.. lSS and L. Penn. :I25 In this /
case II was held that the city of Philadel
puIa exercised portion of the public light
of eminent domain in respect to the streets
within its limits sutjrct on{y to the h,.yhcy.
control ~ he State amt the use Of the peovle.
Cooley constitutional Limitations. POS
Inc correct doctrine would seem to be
mat under the power usually granted in
the charters of cities. the local authorities
may make all regulations necessary for the
control OF the public ways and places within
the corporate limits subject ALWAYS 10 the
can not change the destination nor divert
to private use the loci public,. But when the
Legislature OF the State makes a grant or
enacts regulation in regard to "A public
place within the limits of a city such grant
or regulation Is paramount to any grant or
made or to be made bv the
IN unlclpal corporation. In the presence of
the greater power, the lesser is abatel
But it Is urged in this case that the sew
eral acts OF the Legislature granting to the
New Orleans, Mobile and Chattanooga Rail
road Company the right to lay their tracks
along the line and upon the batture prop
erty have the effect of diverting the public
property IN question to a private purpose
Or at least TO purpose different from that
10 which 1t was originally dedicated They
INSIST tLat such diversion car not be effect
"a under the pretense of regulating the
Use OF the tor"s P"blic"S but only bv the
exercise OF the powers of eminent domain
'Au AFTER compensation granted
ne doctrine cited from the case Of New {
dreams vs. United States nc Peters,. is of ,
curse: beyond controversy The inhabit-
'hls OF town can not be deprived by the +
sovereign OF the streets essential 20 the en-.
osmen. OF Their property. unless it be ex- I
1roprated after compensation made t
But it is equally well settled IN this q
ount'y that the grant of the right
o run railroad through public j
treet or highway is an application ,
u such property to the use of the public. r
iedheld on railways, section xix: 81 i
60 ne decisions are conflicting IA TO 7
he right OF abutting proprietors to de
hahu compensation. IL would seem to de. d
'end upon the special circumstances, of tbe
ase. Al an events that question does NOT c