The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1879-09-11
THE ORLEANS DEMOCRAT THURSDAY SEPTEMBER H. 1870

street 1t is unquestionably appropriated. not
merely for oil the purposes to which such
| streets were formerly applied. but those de-
manded by new improvements and new wants.
| Among these PURPOSES is the use for carriages
which run upon o grooved track Aad I'm, ths
preparation Of important streets In large cities
| for these ,laes Ia not only frequent necessity
| which must be supposed to have been eontem,
plated. but 1t s almost aa much q matter OF
! course ms the grading and paving OF sireets.
| Cooley then quotes the decision Of the court
! Of Appeals Of Connecticut: That tne authority
street Is moi new servltude imposed upon9, DO ,t
land for which the owner Of the fec would be
entitled to damages. but that il is pnft q the
public use 10 which the land was originally
subjected whom taken for street."
,Ffom the foregoing propositions and author
les Th haf' tbe cty Of New Orleans has
chse to sell or give any title to for the use OF tho
streets by hrailway company. t,,z,
Q. That such franchise s q pubic one. when
is possessed by all citizens and strangers as u
proper and Legitimate. use OF The streets 10
which they were dedicated.
8. That TO railway can be constructed IL tfls
streets without the consent Of the city. That
such consent when given. ts q ontraet convey
Ing property. when. once vested. cannot b,
taken away or eoniscaed. or Its Ise isterfersd
with. unless the conditions upon which 1t was
conveyed or the police regulations Thereon be
violated
ii those conclusions mrs correct. It is submit
ted that our City Administrators, In following
poraton In more vexatious litigation. and Of re-,
peatng, In fact. the folly Of the man who killed
the goose that laid the golden egg.
BY recognizing ths propositions we have SGT
forth they save to the city the large revenue 10
be derived from the use OF this property
have no tile or right H. they v only repent tb
mprovidenes OF their predecessors. who sold
without good title, the, Gaines property thirty
with enormous liabilities Tor damages. And
give the purchasers thereof strong legal
Of bea e 20 s 81 b
their creditors Of the whole proceeds OF their
attempted sale. Whereas in the form Of taxa,
such seizure. and would In the aggregate ex
coed the amount OF any expected bid on the
THIS communication would not be complete
Without. q reference TO tho decision, regarded
rs q leading one In New York which was rem
was made by the city ia 1850. and which en-.
braces the main points Involved In this discus
sion-that liz. rs to the absence Of any power In
q city corporate ion to give or sell right Of way
I quote from . Rsdned on Railroads. .. s17:
New Y,rk L. s7 the 2? Aar
Ct New Orleans In regard to the power Of the
Common Council to grant tho use of the streets
for, that purpose, for railway for tbs transpor-
tation OF passengers by horse power. The case |
WIS an application to the Superior Court for nm |
Injunction against the defendants to restrain |
them from making the grant, The defendants |
having, In the first inetanee. aisregarded the |
LIP naneton 1snd pas ~ the grant
the grantees we're also m Sie parties defendant. |
Held that the grant faN9he powers, privileges |
and immunities eOnfsrrd by the resolution In |
question Ia the grant of franchise, and Ii the |
municipal corporation G ahis city was fnGom
petent to make tho grant, he making OF 1t was |
usurpation OF power u .ich oan be- lawfully |
exercised by the Legslasl 1e ri the State only |
that neither of the city clE &ers nor any statute |
Of the State. coniers poRhA in express laws to |
make such grant. Tha't . existence OF such |
power cannot be- implFN ls being necessary
TO the exercise of any pU15 expressly granted |
r. .ae performance Of = duty en'o'nsd by
It is precisely this franchise which the city
now proposes to sell, and Aisposess those who |
are already In pnssessioIHnd vested with such |
grant under authority Of sle laws OF Louisiana |
Under the decision aboveH granted and under |
the laws and constitutiorS,f all constitutional
According to tho New York decision the money
paid for what the city had no right to sell, and
which 1t nsurped the power to sell. would be |
recoverable from tho City In an action by the
payer. | have little idea that the City Railroad |
Company would ever resort to such an action. |
BY their course tn proposing to buy this right |
II may be that they estop themselves from such |
ton the right or power Of the city to make this |
safe. The views here expressed are not IN |
their interest nor with any authority from or |
responsibility on their part. They are In the |
wise municipal administration. The company |
would doubtless prefer to have their bid nc
copied and their lease renewed. But Is that |
lawful right. or to the true interest of the city
And would 1t not be- a far wiser course for the |
city to enter Into a contract with the company |
by which the latter would be obligated to pay the
city, in the form Of taxation o larger sum than |
the aggregate OF Its bid for Its pretended fran
chise? In this way could al litigation. all in I
vasion of legal rights be avoided, and certain |
creditors of the CITY be prevented from obtain |
Ing preference over other credit2r ,i,,,au