New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1875-02-02
NEW ORLEANS REPUBLICAN, TUESDAY FEBRUARY g. 1876

person shall, for injury done him in his
land, goods, person or reputation, have
adequate remedy by due process of law
| and Justice administered without denial or
reasonable delay" I'm all civil matters
where there is no express law, the Judge is
| equity" Revised Code, article o.
The franchise Of the plaintiff is property,
and it has been injured in the enjoyment
thereof by the claims and pretensions Of
| the defendant, founded on a statute charged
to be unconstitutional and void. 1t is
true the right of the plaintiff to make
and vend gas will begin April !, 1875.
but the right to sell shares of its capital
stock to the amount of $1,000. 900, and the
duty to erect works, buildings, machines,
lay gas pipes and prepare everything neces
sary to begin the enterprise or business
vested the moment the corporation began.
Indeed all of plaintiffs franchises vested
from the moment the grant was made by
the State, the exercise of the right, however,
the first Of April, 1875. If the claims and pre-
tensions of defendant founded on void
statute, destroy the credit of plaintiff SO
that it's share Of capital stock can not be
sold or funds raised in order to construct
the necessary works to begin the business
Of gas making by the time stipulated in the
charter, are not the rights Of the plaintiff
to that extent invadedy
If these unfounded claims and preten-
sions hinder or prevent the plaintiff from
getting ready to begin business on the first
OF April, 1875, is not an injury sustained on
account thereof9
Not only PLAINTIFF right to sell shares Of
its capital stock is invaded, but practically
all the privileges conferred by the charter
are defeated, because plaintiff is stripped of
the means necessary to begin the business
contemplated Dy the grant. The plaintiff
| has as much right to use the means author
lied by the charter to make its prepare
| tions rs it will have to pursue the business
| when the preparations are made; and an
| invasion of the one ought to be redressed as
| we'll as an invasion OF the other. A void
title set up to defeat plaintiffs right to pre-
pare for the business invades the charter as
effectually as if set up to Obstruct the bust
| ness after it has begun. 1t is urged, how
| ever, that this is not one Of the actions
| mentioned in the Code of Practice.
The authors Of our laws have not
seen fit to prescribe forms for every
legal demand, and they have not cata-
| logued in the Code Of Practice all the
| actions that may be brought in our courts.
1t is, perhaps, well that they have not done
| go, lest by the omission Of q form sub.
| stantial relief in some case might be denied
to person whose rights have been invaded.
/ u0 lcdrucu COuueOA ". uCACuuduU luEASG
| that as their client had reasonable cause to
| believe that its claim founded on the act
| of March l, 1860, is valid, there is no cause
| for an action of damages on account OF the
assertion thereof; that their client COM
mitted no fault, which is essential to re-
| covery of damages, under article 23l5 of
| the Revised Code, which declares that
"Every act whatever of man that causes
| dana ges to another Obliges him by whose
= horuouoA IN If - y = And
citing a case in ii A. to the effect that
when there is no fault there can be
no actionable damage" they conclude that
NO jus or right of the plaintiff has been in
| vaded and no relief should be granted by
the court. The falacy Of the reasoning
| consists in the assumption that this is an
| action of damages under article 23l5 of the
Revised Code, and because it does not prop
| erly lie there, no right of the plaintiff has
been invaded and relief can be granted. Ia
our opinion the plaintiff has shown an injury
| and if there is no express law giving q
| remedy, it can appeal to the equity powers
! of the court for redress. Revised Code, art.
| 81 Marbury vs.. Madison, l Cranch, III;
Dodd Va. Beutleal, A Heiskal, Coz; State vs..
Paterson. "a U. S. law, l63; State vs. Jersey
City, 81 U. S. law. 800; Story's Equity Jur.
on ipinnctions, $50; England vs.. Louis, IS
Cal. 357; Evans vs.. Merchants Bank, 81 Mo-.
345; % Missouri, 348; see also Osburn We.
| the Bank of United States, 8 Wheaton, TAP.
If, however, the cause of action were
doubtful, we would feel inclined, in view of
| the public interest involved in the issue
herein, to maintain the suit and proceed
| with the trial on its merits. As the learned
Judge quo well remarks in his written
opinion, the making and vending of gas for
| the public in New Orleans is something in
| which the community at large are interest
| ed, and they are concerned in having the
| opportunity to obtain gas secured to them
beyond dispute and doubt. If, therefore,
| it should be found that tbs right of the de-
fendant to make and vend gas under exist
| ing legislation ceases on the first of April,
1875, and that right is given exclusively to
the plaintiff, then it might happen, in case
of the postpOnement of the questions at is
sue until that date, that the city of New
| Orleans would be left in darkness for q
| time for want of the necessary preparations
| on the part of the lawful agent of the State
! to make it. We therefore conclude that the
exception to the petition disclOses no cause
| of action, and can not be maintained.
We now come to the question, is the act
| of first of March, 1860, extending the
| charter of the New Orleans Gaslight Com
pany, as now established by law, from the
| first of April, 1875, until the first of April,
| 1895, repugnant to articles lis and 1l6 of
| the constitution of 1852, requiring the OBJ
| ject of every law to be expressed in the
| title, and prohibiting the amendment of a
law by reference to it's title! The title is:
IAN act to extend the area of gas lighting
in the city of New Orleans. and to reduce
the price now paid by consumers" Section
| one provides ''that the charter of the New
Orleans Gaslight Company as now establish.
| ed by law shall remain in full force and
effect until the first day of April, 1895; pro-
vided that nothing contained in this act shall
be construed so as to continue the exclusive
privilege granted to said company beyond
the period fixed by its present act Of incor-
1t also contains clauses reducing the price
! of gas to 81 per 1000 cubic feet, and requir-
| ing within three years the said company to
| lay not less than fifteen miles of main pipes
throughout the four districts of the city,
| according to their respective wants, and
also requiring it to lay down, free Of charge,
| the main pipes necessary for lighting the
levee or river front of the city whenever
required to do so by the Common Council.
Section two provides "that the New Or
leans Gaslight Company shall have the
| power to increase from time to time the
capital stock of said company, as the board
| of directors may determine, to an amount
which shall not exceed 81 ,OOO, OOO."
Section three provides that the act shall
not take effect until it is accepted by not
less than two-thirds of the stockholders
The object of the act was doubtless to give
the defendant an extension of its charter
for twenty years from Apri! l, 1875, and that
really was the grant made by the State, the
motive or inducement for making it being
the advantage contemplated to accrue to
the people OF New Orleans by having gas
extended over greater area and supplied
to them at cheaper rate. This object is
not embraced in the title. No hint or clue
is given, nothing is suggested in the title,
Indicating the purpose to prolong the period