The New Orleans bulletin. [volume] (New Orleans [La.]) 1874-1876, 1875-02-02

money, exceeding $1,000, 600, that if said
works and preparations are not completed tor
the manufacture, sale and delivery of gas by
that time, both the plaintiff and the public
will suffer irreparable loss; that the asser-
tons, pretensions and claims of defendant,
that its charter was continued for twenty
years from April !, 1875, by act of March /,
1860, which is void for unconstitutionality,
are calculated to and do impair the value of
plaintiffs charter and the credit of the COM
pany, and are calculated to and do impede this
company in its efforts to complete the
necessary works as aforesaid, thereby causing
large damages to plaintiff, and that said
unfounded pretentions will continue to work
plaintiff lrreparable injury unless said act of
March 1st, 1860, be decreed unconstitutional
and void, and the defendant be inhibited from
setting up rights hereunder. That the plain
tiff is entitled to the use gifts credit in raising
funds to construct the large works, and make
preparations necessary to begin the manu-
iacture and sale of gas on LIST April, 1875, can
not be doubted, and that it is injured by the
pretentions of defendant, founded on the act
of March LIST, 1860, claimed to be void, is
equally certain. If the plaintiff is injured to
the extent claimed, and is crippled by the
loss of its credit so as to be impeded in
carrying out its contract with the
State by the pretensions and claims of de-
1860, which is alleged to be unconstitutional
and void the question is, can this court re-
dress the wrong of which the plaintiff COM
plains and give the relief prayed for in the
petition. We think that it can.
Article 10 of the Constitution, provides that
call courts shall be open, and every person
shall for injury done him in his lands, goods,
person or reputation, have adequate reme-
dy by due process of law, and justice ad-
ministered without denial or unreasonable
delay" I'm all civil matters where there is
no express law the Judge is bound to proceed
and decide according to equity. ."
Revised Code article 81.
The franchise of the plaintiff is property,
and it has been njured in the enjoyment
thereof by the claims and pretensions Of the
defendant, founded on a statute alleged to be
unconstitutional and void. 1t is true the
right of the plaintiff to make and vend gas
will begin on the 1st of April, 1875, but the
right to sell shares of the capital stock to
the amount of three million dollars and the
duty to erect works, buildings, machines lay
gas pipes and prepare everything necessary to
begin the enterprise or business, vested from
the moment the corporation began. Indeed,
all of plaintiff s franchises vested from
the moment the grant was made by
the State, the exercise of the right,
however, to make and vend gas, being post
poned till 1st April, 1875. If the claims and
pretensions of defendant, founded on void
statute, destroy the credit of plaintiff so that
its shares of capital stock cannot be sold or
funds raised in order to construct the neces-
sary works to begin the business of gas max
ing by the time stipulated in the charter are
not the rights of the plaintiff to that extent
invaded? If these unfounded claims and
psetensions hinder or prevent the plaintiff
from getting ready to begin business on LIST
April, 1874, is not an an injury sustained on
account thereof? Not only plaintiffs 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 by the grant The plaintiff
has as much right to use the means authorized
by the charter to make its preparations as it
will have to pursue the present business, /,
when the preparations are made, and an in
vasion of the one ought to be redressed as
well as an invasion of the other. A void title |
set up to defeat plaintiff right to prepare for
the business invades the charter as effectually |
as if set up to obstruct the business after it |
ha1 begun. 1t is urged, however, 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 |
catalogued in the Code Of Practice all the
actions that may be brought in our courts.
1t is, perhaps, well that they have not done
50, lest by the omission of a form subtantial
relief in some case might be denied to per-
son whose rights have been invaded
The learned counsel of defendant insist
that, as their client had reasonable cause to
believe that his claim, founded on the act of
March LIST, 1860, is valid, there is no cause for
IN action of damages on account of the asser-
lion thereof; that their client committed no
FAULT, which is essential to recovery of dam
ages, under article 2315 ''of the Revised Code,
which declares that every act whatsoever of
man that causes damages to another obliges
him by whose fault it happened to repair
t. And citing case in IL Annual to
he effect that ''when there is no fault there
IAN be no actionable damage" They con-
GUIDED that no JUS or right of the plaintiff has
~ the court
The fallacy of the reasoning consists in the
that this is an action of damages
1nder Art 2315 of the Revised Code, and be-
cause it does not properly lie there, no right
If the plaintiff has been invaded, and relief
AN be granted. In our opinion, the plaintiff
aas shown an injury, and if there is no ex-
press law giving remedy, it can appeal to
The equity powers of the Court for redress.
NeV. Code, Art. Il. (dere IOuOWs long uSt
If authorities.)
IT, however, the cause of action were doubt
ul, we would feel inclined, in view of the
public interest involved in the issue herein,
o maintain the suit and proceed with
he trial on the merits, as the learned !!
Judge quo well remarks in his written opin-
on the making and vending of gas for the J
public in New Orleans is something in which
he community at large are interested, and :
hey are concerned in having the opportunity !
0 obtain gas secured to them beyond dispute
n doubt.
If, therefore, it should be found that the .
light of the defendant to make and vend gas, !
lnder existing legislation, ceases on the LIST
+ April, 1875, and that right is given exclu- a
lively to the plaintiff, then it might happen, in
ase of the postponement of the questions at
,sue until that date, that the city of New Or
cans would be left in darkness for time, tor i
'ant Of the necessary preparations on the
Al IS %1oC koko 70 H. l.