New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1875-02-02

years, or until the first of April, 1895. A
member who would object to extending the
charter might readily consent to reduction
of the price of gas and to the extension OF
the area supplying it. We therefore con-
clude that the act Of March I, 1860, extend
ing the charter of the New Orleans Gaslight
Company, as now established by law, until
the first day of April, 1895, is repuenant to
article lis of the constitution of 1852, then
in force, and is therefore void. A., 295;
5 A.. Sc; % A., 100; Cooley ON Limitations,
al, $780, IA Indiana, 1876; Adams vs.. Web
ster and Morrison vs.. Larkin mot yet re-
ported), &c A.
act of 1860 is constitutional or not, it was q
contract that has been duly accepted by the
parties; that the defendant, in performance
of the requirements thereof, has extended
the area and reduced the price Of gaslights
in the city of New Orleans; that the State,
after receiving the benefits Of the contract,
can not DENY the validity thereof, and that
the plaintiff, the grantee Of the State, is
estopped by the act of its grant0r from
disputing the rights of the defendant arising
under said statute. This argument is un-
sound.
The defendant was charged with notice
that the Legislature was prohibited from
passing an act or granting charter in con-
prevention of article lis OF the constitution,
and the statute in question, passed in viola
ton thereof, was utterly void from the
beginning. If the statute was void, the
grant therein to the defendant prolonging
its charter for twenty years was invalid,
and no subsequent act of its own could cure
tho infirmity or operate an extension Of its
charter, because q creature can not be its
own creator. And no act of the General
Assembly could cure the defect or prolong
the charter unless done in the manner pre-
scribed by the constitution, and not in VIC
lation thereof. Nothing but valid statute
ing the charter Of the defendant until 1895;
and, as before remarked, the act of March
| l, 1860, being unconstitutional, was utterly
void from the beginning. Cooley's Const.
Limitations, 1888; IS Missouri. 34l; Dali,
1903; Cranch, 1877; M, 58l; Allen, 407;
% Missouri, 593; Marsh vs. Fulton county,
10 WAL. 677; A., 295; Dillon on Municipal
| AL; Cal, 81; 10 Iredell, ll2; 4 Hawkins,
| 1872; l same, 27S; State ex rel. Smith VS..
Dubuclet, State Treasurer, % A., 267.
We cone now to the question whether
| the acts incorporating the plaintiffs COM
pany and comforting on it the cole and
exclusive right to make and vend illumin-
| ating gas in the city of New Orleans for
| fifty years, from the first of April, 1875. are
reDugnant to article la of the constitution
| or objects Of every law to be embraced in
the title.
And here the main objection is as to the
| title of the act of the twentieth Of April
| 1870; that it's title, IAN act to incorporate
the Crescent City Gaslight Company" does
not cover the monopoly contained in the
eighth section thereof; that there is nothing
| in 1t indicating the purpose to grant the
sole and exclusive privilege to make and
vend gas in the city of Now Orleans for
| ifty years from the first of April, 1875.
TO this tho plaintiff replies that under
similar title monopoly of the same kind
was granted to the defendant in the charter
of 1885, which was recognized by this court
| in the case of Paulding, IL Rob-, 37S, and
which has been enjoyed by the defendant
| for nearly forty years without Its validity
having been questioned by any one. But
the object of the act as stated in the title
was ito incorporate the Crescent City Gas
light Company" To incorporate company
! is to create it with certain powers and
| privileges; those powers and privileges
need not be detailed, for if they were the
| title would be as long as the act. The title
| of the act disclosed the creation of q gas
company. This was sufficient to cover the
monopoly or exclusive privilege to make
and vend gas.
The precise question was before this court
| in the Louisiana Lottery Company vs..
Richoux ct al. % A., 743, and also in the
| State ex rel. Belden vs.. Pagan, % A., SAG,
| where it was held that an extensive privi-
| lege or monopoly could be granted under
| the usual title to incorporate a company.
And in these decisions it was held that the
| State could create a monopoly; that 1t
could give the Crescent City Slaughter
house Company the exclusive privilege to
! keep elaughterhouse, and that it could
| confer on the Louisiana Lottery Company
the exclusive privilege to sell lottery tickets.
However odious monopolies may be, the
| sole question for the court to determine IN
this case is, had the Legislature the power
under the constitution to grant the plaintiff
| tho sole and exclusive right to manufacture
| and sell illuminating gas in the city Of New
| Orleans for fifty yeare7 If they had the
| power they can not be controlled by the
| judicial department in the exercise thereof,
however unwisely they may have chosen to
employ it; their responsibility is not to the
court, but to the people, whose agents they
are. for this unwise, unfair and arbitrary
exercise of tile power of legislation contided
| to them. In its own sphere the Legislature
| is supreme, except when restricted by the
constitution of this State or the United
| States. OR. All; A. 562; II A. 1903, 1888, $40:
II A. 169,l554; see also 16 Wa. 36. Now, what
| clause OF these constitutions has been
violated in the case at bar! Is the bill
of rights; lalll persons "shah enjoy the
privileges, and be subject to the same
pains and penalties, in any manner in.
vaded Is life, liberty, or the pursuit of
happiness of any person in the city OF New
Orleans assalled by the statute granting
the sole and exclusive privilege to plaintiff
to operate gas works in New Orleans for
fifty years! The right to operate gas works
and to illuminate q city is not an ancient
or usual occupation OF citizens generally.
and lay down gas pipee, erect lamp-p posts
and carry on the business of lighting the
streets and the houses of the city OF New
Orleans without special authority from the
sovereign. 1t is franchise belonging to
the State, and in the exercise OF the police
power the State could carry on the bust
ness itself. or select one or several agents
to do so. And as the Legislature had
the right in 1885 to grant the
sole and exclusive privilege to the
defendant company to make and
vend gas in New Orleans for forty years,
the Legislature of 1870 had the same power
to confer on the plaintiff the same privilege
for fifty years from the termination of the
grant to defendant. We therefore conclude
that the grant of the monopoly complained
of does not violate the constitution, and it
is valid. % A., 553; l6 Wallace, 30; " A.,
743; see. also, Garfield We. Coryell, Wash.
&c Rep, p. $50; also, Dillon on Corporations,
sections SAG and $40.
We come to consider the rights of the
intervenOrs.
Without going into details, we conclude
that the State intervening, not to set up
some separate right OF its own, but solely
for the purpose Of upholding the rights of
the plaintiff against the defendant, in regard
to franchise granted by itself, has no in.
tereet whatsoever in the controversy, and
the court below did not err in Diminishing it's
intervention. In regard to the intervention