The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1879-09-11
fCommunicated.1
THE RAILROAD FRANCHISES.

nfeation proposing change In the plan Of sale
| of the alleged railroad franchises BY The city.
| nsk d like favor of discussing In your columns
| tho much more important question whether the
| city can sell any such franchises, and whether
our Mayor and Administrators. with the most
| honest and prRisewprthy Intentions. have not
boon mised by q bad precedent and IN erro-
naous Interpretation Of their powers to attempt
m Illegal act and sale: not only nm Illegal. but
wrongful and unjust act.
10 exhibit the character and intent Of this
wrong let liz recall the facts Of the original nd
judlcation made by the city twenty years ago,
of this alleged franchise or privilege.
When proposals were advertised for in 1859
the circumstances we're 50 discoufaging, the
legality 30 doubtful. that no higher bid was of
fered. and that by u nonresident. backed by
New York capital than $4,000. This bid was
rejected by single vote Of the two councils.
The whole press Of the city, with bnt one exeep-
tfon. urged It's acceptance.
Offered sixty days afterwards. the bid was
siso,ooo. which the city accepted. and entered
into the contract which the present company
now holds. To render this grant available re-
auired an enormous expenditure. Through
this expenditure. and The good administration
of these capitalists the enterprise became q
public convenience comfort and welfare of the
people was vastly promoted There was never
an outlay of capital In this city by which
tho public was so greatly benefited. For
twenty years has 1t been conducted to the
entire satisfaction of the public aud the city.
MEANWHILE through tho great changes and
mlsfortunes OF the city. Its profits to Its stock
holders have greatly declined. 1t In now pro
posed through an erroneous construction OF
the powers of the city. to levy an exaction upon
this company which will reduce still further
Its legitimate profits. / need not dwell ON
the Injustice. the impolcy and ineduitableness
OF such an exaction under the circumstances
described.
I propose to show that II IL without legal
authority or power. A thorough examine
ton OF the laws and ordinances relating to
street railways In cities in the United States has
discovered no case Of the sale of right of way
or franchise. or the exaetion of n bonus for the
exercise Of such right or privilege.
In MI such grants the franchise or right of
way ii conferred by nm act Of the Legislature.
but the exercise of this right and franchise Is
made dependent upon the consent Of the city
which may prescribe the terms and conditions
upon which that consent is given. These
conditions constitute contract between
the municipal corporation and the rail-
road company aud are prescribed In pursuance
Of it's police powers. Such powers must be
exercised for the public welfare on just. legal
and equitable principles. 80 as to protect the
rights Of all citizens. Such powers md protection
cannot be sold for money consideration. or rs
q privilege for d bonus. They Impose duty
which Is not to be bought or sold. The only
money consideration to be paid BY the citizens
for the performances OF this duty is In the form
Of legal taxation
To compel citizen to buy such protection or
Of Il public and official duty would be
To withhold from him the con-
sent to the exercise of his rights. on other than
lust. equitable and police considerations. and
exact bonus. q moneyed consideration there
position Of the judiciary.
The only ground upon which such consent
could be refused would be that OF public incon-
or interference with the rights Of
others, and OF damage to tho corporation prop
erty. If these grounds exist they cannot be
sold or naiued for money consideration. The
3ity cannot thus sell out the rights OF others
Il the use of the streets by railways is an OBJ
struction or Interference with the rights OF
others the city cannot make, much less can 1t
damage other citizens. 5m-5
Now. 1t has been decided as far back ms 1860
hat the use of the streets by the City Railroad
Company is legitimate exercise of the right of
way: that 1t does not interfere with or incom-
node others In the exercise of their mode of
1se; that IL IL of no damage or injury to other
PARTIES and the city has full power to prescribe
he police conditions upon which rails may be
aid and cars run through the streets. Here
he power of the city ended Its pretense of
ceiling q francbi-e or right Of way was without
franchise or right of way to SELL The bonus
which was paid for such pretended right was
mere disguised taxation. which the company
night have. but did not, set up as q bar to the
'eeovery Of further taxation. The company
llready had this franchise or right Of way, rs
re ss did a. to b did
lot. IN fact. buy that which they already pos
,essed.
o construct and operate railways through tho
streets Of New Orleans, the corporators became
tested with the franchise or right Of way which |
ne city no Y proposes to sell, The company,
luder this grant or right. could have proceeded
o lay their rails aud run their cars on them
ont for Legislative provision which existed
when they We're Incorporated
This IS the article 243t OF our Revised Statutes:
No railroad, plank road or canal shall be
constructed through the streets OF my ineorpo-
'ated city or town, without the consent Of the
municipal council thereof
The consent here required is for the con-
,tfuction of a road, not for the exercise Of the
light Of way or the use Of such constructed
-oad.
This consent was given by the city. nnder
which are embodied in an ordi-
nance and which are entirely Of police char
letter.
The road being constructed under this con
sent. the.right OF use of it became vested right
of property, in which the company cannot be
unless It violates the coDd tons Of
he contract or infriDges the rights of others.
II was executed contract between the city I
and the company. by which both are bound as |
long rs the property exists. The company, |
hon. nov stands In this attitude.
II has the franchise Of the right of way through |
The streets upon which Its grooved track is laid |
Rs q public or common right. belonging to all
citizens and even to strangers, and by virtue Of
Its INCORPORATION under the laws of Louisiana. |
1t has also the consent OF the city to the laying
Of its rails through certain streets under con-
tract. which has been executed and which can
not he avoided but by the consent of both par
ties or by rutting either In default.
Il. is not stipulated in said contract that In
addition to the conditions prescribed for the
Of the road that d certain bonus or
premium shall be given therefor. The consent