New Orleans Water-Works Company v. Louisiana Sugar Refining Company

'The question which arises, under such state of facts, is simply whether the city of New Orleans had the right to grant the authority. If the city had such a right, the defendant company has a right to exercise it. In order to determine that question, it is essential, first, to ascertain what is the nature and extent of the privilege originally conferred by the state upon the Commercial Bank, and which passed to the city of New Orleans, by whom it was afterwards transferred to the defendant [plaintiff] company, organized, as it was, by a charter which is explicit as to its prerogatives and responsibilities. The right conferred by the legislature in 1833, and confirmed in 1877, was not to draw water from the river, nor was it to lay pipes and conduits on the lands and streets of the city of New Orleans. It was the exclusive privilege of supplying the city and its inhabitants with water drawn from the river by those means, the object in view being, on account of benefits derived by the city, the exclusion of all others, corporations and individuals, from making a similar supply, in other words, from selling and vending water. The Commercial Bank, in common with all the inhabitants of the city, possessed, independent of any legislative grant or concession, the right to draw water from the river for its own purposes, and to supply the city and its inhabitants with it; but it did not, any more than any of the inhabitants of the city, have the right of laying the pipes and conduits necessary to convey the water through or over any of the lands or streets of the city, and to do so it required special authority, either directly from the state, or from its functionary, the city herself. The right which it did not possess, and which no other inhabitant possessed, was the exclusive privilege of supplying the city and its inhabitants forever, or a limited tie, by means of pipes and conduits laid through the public soil. The moment that privilege was conferred by the state on the corporation, to supply the city and its inhabitants with water from the river, through pipes and conduits which it was authorized to lay through and over any of the lands or streets of the city, all pre-existing, as well as all subsequently arising rights, which could have otherwise been exercised, ceased to be available, and competition for such supply became an absolute legal impossibility. The right to that exclusive privilege, under the present constitution, is contested by the defendant; but it is entirely out of place to consider whether it exists or not, as, under the pleadings and the facts, the question of competition is not at all at issue. The city of New Orleans does not claim to have conferred on the defendant company, and that company does not claim to have received from the city, the right or privilege of supplying the city and its inhabitants with water by means of pipes, conduits, and hydrants. The city and the defendant company claim only that the former had a right to grant, and the latter to enjoy, the permission of laying pipes and conduits from the river to its factory, for the sole purpose of supplying itself with water for its own purposes, and for no other. It cannot be doubted for an instant that as the city has, under general laws and by her charter which emanates directly from the sovereign, the exclusive control and regulation of her public lands, quays, streets, and avenues, she had the right of permitting the defendant company to lay pipes and conduits across the quay and through the streets, from the river to within its factory limits, for the purpose of supplying itself with the water needed for its objects. Rev. Civil Code, arts. 450, 453, 455, 457; Brown v. Duplessis, 14 La. Ann. 842; Board of Liquidation v. New Orleans, 32 La. Ann. 915. It is true, that section 18 of the charter of 1877 expressly protects riparian or contiguous proprietors against a possible effect of the exclusive privilege granted; but the provision there found is not to be construed as one conferring a privilege or right which otherwise would have had no existence. It is indisputable, that such riparian or contiguous owners would, independently of the declarations in section 18, have enjoyed that right, which could, under no contingency, have thus been abridged. They had clearly, not only the privilege, in common with all others, to draw the running water from the river for domestic purposes, ad lavandum et potendum, but also, on principle, that, without the need of a previous permission, of laying pipes from the river to their premises, to draw the water necessary for their use. The state and her functionaries,-political corporations,-however, have the right, in the exercise of the police power, of regulating the enjoyment of that right, denying or permitting it, according as public security and good may or may not demand. If section 18 was designed for any practical object, it could only have been to secure to the contiguous owners, beyond the possibility of a doubt, their indisputable rights, subjecting them, however, to the control of the municipal authorities, as the improvident or careless exercise of such rights across the river bank and through the public street of a populous metropolis might be attended with great calamitous consequences, inflicting incalculable wrong and injury.' 35 La. Ann. 1111.

A writ of error from this court was allowed by the chief justice of the supreme court of Louisiana upon the plaintiff's petition representing 'that said plaintiff set up its charter as a contract between it and said city of New Orleans and the state of Louisians; and that the ordinance of said city in favorof said defendant, the Louisiana Sugar Refining Company, was a violation of said contract, which was protected by the constitution of the United States, and said supreme court in its decree maintaine the legality of said ordinance, and decreed it to be no violation of said contract.'

J. R. Beckwith, for plaintiff in error.

S. T. Wallis, for defendant in error.

Mr. Justice GRAY, after stating the facts as above, delivered the opinion of the court.