HART
v.
BUCKNER.
925
can be no recovery. Crommelin v. Thiess, 31 Ala. 412; Shakespeare T. Alba, 76 Ala. 356. But the plaintiff in eITor contends that the performance by him within one year of his part of the agreement took the contract out of the statute of frauds. The answer to this contention is that part performance of a verbal contract within ,the statute of frauds has no effect at law to take the case out of its provisions, but is only a ground for equitable relief, and cannot be urged as a defense in a suit at law. Browne, St. Frauds, § 451; 2 Story, Eq. Jur. §§ 759, 1522, note 3; Railroad 00. v. McAlpine, 129 U. S. 305, 9 Sup. Ct. Rep. 286. We perceive no eITor in the ruling of the court below, and the judgment must be affirmed.
HART v. BUCKNER et at (ClrCllit Court of Appeals, Fifth Circuit. No. 90. L CIRCUIT COURT OF ApPEALS DECREE-REVIEW. APPEAL FROM INTERLOCUTORY INJUNCTIONAL
December 19, 1892.)
On an appeal to the clrClIit court of appeals from an InterloClItory order gl'antingan injunction, the right of the complainant to other relief demanded by his bill cannot be considered when the same has not yet been passeu upon by the court below; and the only question before the appellate conrt is thn propriety of the injunction. STREET RAILWAYS- RIGHTS OF LOT OWNERS-
.. MUNICIPAL CORPORATIONS INJUNCTION.
The rights of owners of lots abutting on a pubUc street, even though they do not include the fee of the street, are property rights, the Invasion of which without authority by an electric railway may be prevented by injunction.
8.
SAME - PARTIES.
Where there is an unauthorized obstruction of a public street, all of the adjacent lot owners who sustain a special injury therefrom can maintain a suit for injunction, and no other parties defendant are required than alleged trespasser. Laws La. 1888, Act No. 135, requiring that a sale of a street-railway franchise shall be made to "the highest bidder," means the highest bidder in money, and the sale of the franchise is invalid where the specifications call for, and tho adjudication is made to the highest bidder in "square yards of gravel pavement." 52 Fed. Rep. S35, affirmed. The interval between the sale of the franchise and filing of complainants' bill to enjoin the construction of the railway in front of their premises was one month and eight days, and the franchise itself was granted against the public protest of one of the complainants and of several other residents on the street. Held, that there was not such delay as amounted to an acquiescence in the grant, such as would preclude complainants from asserting their rights. 52 I!'ed. Rep. 835, affirmed.
"
ELECTRIC STREET RAILWAYS-SALE OF FRANCHISE-POWERS OF COUNCIL.
G.
SAME-INJUNCTION-LACHES.
Appeal from the Circuit Court of the United States for the Eastern District of Louisiana. In Equity. Bill by Newton Buckner and others against Judah Hart to enjoin the construction of an electric. trolley railway in front I!tf complainants' premises on Coliseum street, New Orleans. The
926
FEDERAL REP(}R'rER, vol.
54.
Fed
Sta'tem:eiit'lb'yP:A.RDEE,CircUit Judge: 1';11" ,
835,) and defendant appeals.
granted a 'motion for all injunctloD:"pelidente lite, (5t AftirmelL"
'
By ordinance O. S.,adopted November 17, 1891,the common counell of Orleans ordained "that the comptroller give notice in a newspaper he. will, at public auction, in the council chamber, on the - day of ---:, 18\)1, at the hour of twelve o'clock meridian, sell to the bIdder the righfof way for twentY-five (25) years, for street railway purposes, OVer the folloWing streets, to Wit: Oommencing within 120 feet of the Orowl stl'eet fetTY landillg; thence on the north side of Canal street, over the trunk the Canal and Olaiborne Street-Railroad to Carondelet street; along Carondelet street, over the track of the Crescent Oity Railroad Company, to Clio street; along Clio street to Constance street; along Constance street to Louisiana avenue; f"ouisiana avenue (nOl'th side) to Camp street; Camp street to Exposition boulevard, (or lower side of Audubon Park;) and returning along Camp street to Henry Clay avenue streot, Henry Clay avenue street to Oolisewn street, Coliseum street to Louisiana avenue street, (south side,) Loulfliana avenue street to Laurl'l street, Laurel street to St. ;\iary street, St. i l\Iary street to Constance street, double track on Constance street to Calliope street, Calliope street to St. Charles street; thence down St. Charies street, over the track of thn Cr,escent City Railroad Company, to Canal street; and thence along Canal street, using the trunk line of the Canal and Claiborne Railroad tr) the starting point at Canal street ferry' landing" * * * All in accordance with map of said route and specificatioIlR in the oftice of the city engineer." In obedience to thiS ordinance, the comptroner published for three months, according to law, the followlng advertisement:. "Public notice is hereby given that on Monday, March, 28th, 1892, in the councll chamber, at tho city hall, at the hour of 12 o'clock }I., will be sold at public auction to the highest responsible bIdder the right of way for tWenty-five (25) years, for street-railway purposes, over the strc,ets, to wit, [giving the description above mentioned;) · · * all in conwith map of said route and specifications in the office of the CIlty eilgiDeer, and ordinance No; 5784, C. S.· lUlopted November 17th, 1891." After provic11I1g the method in which the road Is to be constructed, the character of the rall and the ties. the character of the paving to be done in the streeta ,which the road ran, and the oblIgations to be assumed with referenco to the X1aving, repair, and maintenance of the street!!, the speclftcations, approved' by city council, provided: ''ThiS line may be operated by any motive power now successfully applied in the United States, except steam. The ",peed shall not exceed tWc:'lvlJ mlles per hour, unless by ordinance of the conncll. Cars sball not stop except at the further side of crossings. * * * 'ro enable bidders to estimate the cost of the paving, the city holds offers to deliver gravel to the pm'chaser of the fnmchise at a fixed rate and a fixed time. These offers can be ""een at the office of the city eDgineer. Work of construction shall begin within two weeks after the date of the signing of,the contract, and so completed 8S to be in operation within one year after the same date. A bond of $50,000, approved by the mayor, shill be given to illsure the commencement and completion of the work, and in a satisfactory manner, wIthin the dates specified. The party or parties to whom the right of way is sold 'Ihall engage And contract with the city of New Orleans to construct!\. certain nwnber of square yards of gravel pavement, aecordlng to the 'general specifications for such paving, and, together with accompanying Belgian blocks, bunting, curbs, counter curbs, and gutter bottoms, which shall be estimated for and computed in the number of square yards, and not to be charged for as an extra, or in addition to sald square yards of paving, which shall m; constructed on such streets and commencing at such points as the city oCouncil may hereafter designate." And by supplementary speclftcations, showing neithe.r approval by city councll nor date, it was provided: "'1'11e sale of this franchise, uuder the. right of the city to reject any or all bids, shall be adjudicated to the party or parties who offer to bulld the greatest number of square yards of gravel pavement, including, without extra cost, paving, curb
V. BUCKNER.
927
pbnklng, curbs, gutter bottoms, counter curb$, wings, Belglan block crossIngs, and bunting nlong the tracks and culverts, provided that such bid Is. not less than 60,000 square yards. The terms upon which the work of paving, etc., can be done are on file In the office of the city engineer." At the date and place appoinOOd in the advertisement Judah Hart appeared and bid the mlnlmum fixed In the specifications; that Is, 60,000 square yards of gravel pavement. This bid was duly reported to the council by the comptroller, and the council thereupOlll passed ordinance No. 6260, C. S., adopted April 12, 1892, directing the mayor to enter into a notarial contract with Judah Hart for the right of way for 25 years, for street-railway purposes, over the route designated in the advertisement, nll in conformity with the map ot said route and specifications in the office of the city engineer, and ordinance 5784, C. S., adopted November 17, 1891, and as per his bid of ;\>Iarch 28, 1892. The parties.thereupon went before the city notary on the 8th day of June, passed the notarial contract provided for by ordinance 6260, and gave a bond for $50,000, required by the ordinance. On June 28, 1892, a large number of property holders on Constance street, between Felicity and Calliope streets, petitioned the councll not to permit the laying of a double track on that street, as it was. a verY narrow street, and asking the council to order the removal of one of the tracks provided for in the franchise sold to Judah Hart to some other street. This petition was referred to the streets and landings committee, who referred the matter to a subcommittee. Tbis subcommittee reported that the objection of the property holders on Constance street was well founded, and advised that one of the tracks be changed to Coliseum street from Louisiana avenue to Race street, and on Race street to Camp street, and on Camp street over existing tracks. The report of the subcommittee was taken up by the whole committee, and approved, and this committee thereupon reported an ordinance to the councll, modifying the right of way of the franchise grantell to Hart. This ordinance was adopted, and became ordinance No. 6595, C. S. It providffi that "whereas, the route of the street railroad franchise adjudicated to Judah Hart under the provisions of ordinance No. 5784, C. S., provides for a double track on Constance street, from St. Mary street to Calliope street; and whereas, Constance street, between the points designated, is too narrow for the construction and operation of a double track, regard being had to the interests of the rffildents on said street; and whereas, it is to the interest of the city that the route of said railroad shOuld be modified so as to take said double track ot! of Constance street, and to make one of sald tracks run on Collseum street from Louisiana avenue to Race street, and thence to Camp street; and whereas, the said Judah Hart is wiUlng to accept the modification of sald route as herein proposed: "Section 1. Be It ordained by the common council of the city of New Orleans, that the route of said railroad adjudicated to Judah Hart under the provisions of said ordinance No. 5784, C. S., be changed, amended so as to read as follows, to wit: · · · ," giving the changed route, taking one of the tracks ot! of Constance street, and the removal of that track from Constance street and Laurel street to Coliseum street, from LouiPinna avenue to Race street, through Race street to Camp street, and down a portion of Camp street over the tracks of the Crescent City Railroad. The whole body of the franchise above Louisiana avenue and below Race street remained entirely unchanged. The second section of the ordinance provided that Judah Hart should signify his acceptance of this order by a notarial contract, signed by himself and the mayor before the city notary, and authorizing the mayor to enter into such contract with Hart, changing the route of the railroad. This ordinance ",as anopted on the 2d of August, 1892. \Vh1le this ordinance was pending, to wit, on July 15th, certain property holders on Coliseum street, between Louisiana avenue and Race street, presented to the councll a petition, protesting against the granting of the right of way to lay a railroad on that part of Coliseum street; the ground of their protest being that petitioners had at a expense recently graveled the street; it is the only street running through that part of the city, and the only one of the smnller streets left, not now defaced with railroad tracks; and averring that a In'eat hardship would thereby be worked to the petitioners to have the said street, which they bad recently been put to the expense of constructing, ruined, and that It
FEDEItALREJ'OR'rER.
vol. 54.
woUl.dbe. ,great inconvenIence to· the general, comrminity which noW' ,uses tl1esatttsfreet as a plellSUl'9 drive. ' In accordance With theproVl.sions of the ordlnalnee, the mayor aild':J"udah Hart appeared before the city notary on the 9th day of September,aIld executed a notarial contract; embodying the terms ordl.nance. Work WlUil Immediately commenced by' Hart under these ordinances, and, . asslioWn by, the atlidaVl.t of M. J. Hart and the atlidaVl.tof G. A. HOllkins, pliorto the 15th day of Oetober, 1892, Hart had entered into contracts for the constrtiet1on and eqUipment of the said property, amounting to the sum of $36a,050. amounts cf materials provided for in said contracts, hacl prior to that date been delivered by the contractors. Ten thousand dollars worth, of gravel had been delivered and put in llosition. Eight thousand seven hundred feet of eamp street, from Louisiana avenue to Joseph street, 'had been graded, and cross-ties and track material delivered for the roadbed. Coliseum street had been graded for a single track from Louisiana avenue to Napoleon avenue, a distance of thl'ee thousand six hundred foot, and cross-ties and track material were delivered for the roadbed. Twelve thousand cross-ties bad been delivered at the Carroliton avenue switCh from the belt line to be put in thll construction of the railroad, and track material for about seven miles of track had been put in position. Thousands of dollars bad been spent in the excavation of the streets covered by the franchise, and nearlY all the material for the overhead work and construction had been deUveredby the contractors and put in place along the route of the railroad. On the 17th of October, 1892, ,Newton Buckner and six other persons, claiming to be property holders on Coliseum street between Louisiana avenue and Race street, being that part of Coliseum street covered by the modification of tJIe route provided for under ordinance No, 6595, C. S., filed a petition in the civil district court for the parish of Orleans, averring that they were owners of estate on the designated portion of Coliseum street; that they had lately Contributed large sums of money for the purpose of paving said Coliseum street with Rosetta gravel; that by reason of the paving, as well as by the fact that adjoining parallel streets are occupied by street-railroad tracks, sa1d Coliseum street had become a throughfare muCh resorted to by the citizens' of New Orleans as a pleasure drive, and' that, by reason of said paving the value of their property had been enhanced; that the city council had adopted ordinance No. 5784, directing the advertisement and sale of the street-railroad franchise therein mentioned; that the comptroller had advertised the said franChise for sale,but did not, as required by section 4 of act 135 of the Aetsot,Louisiana of 1888, publish the specifications of the franchise; tbat·the comptroller did not, at the expiration of the delay, as required by ordinance No. 5784, and by the act of 1888, sell to the highest responsible bidder the franchise; but, instead of selling the same,pretended to accept, as the consideration of the franchise, an offer of Judah Hart to furD1sh the city of New Orleans not less than 60,000 square yards of gravel paVing; that by Vl.rtueof ordinance No. 6260 the mayor and Judah Hart had entered into a pretended contract with reference to the said franchise; that, as said specifications had not been published as provided by law, and as the aforesaid franchise had not been Bold at pubUc auction to the hip;hest bidder undeJo the requirements and limitations of No, 5784, C. S., and Act 135 of 1888, the said offer of Baid Hart to acquire said franchise, and the said ordinances Nos. 5784, C. S., and 6260, C. S., and the pretended contract of the 8th of June, 1892, were absolute nullities, and devoid of all legal effect, and did not and could not convey to him the franchise. They further avel.' the passage of ordinance No. 6595, C. S., modifying the route as originally adjUdicated; and that the franchise or right of way over the part of Coliseum street granted by the modification greatly exceeds in value the rights of way over those streets for which it was thus pwmitted to be substituted; but that In spite of this fact said change was by said COlUmon council ordained without ,consideration of the city of New Orleans, without publication, and without adjno.ication of said franchise, as required by Act No. 135 of 1888; that petitioners vainly protested to the common council against the Change; that they arelnformed and verily believe that said .Judah Hart, under this ordinance.intends to enter upon Coliseum street, between Louisiana avenue and
HART ". BUCKNER.
929
Race street, for tbe purpose of layfnga roadbed and for a street railway, the same to be operated by using as motor power the so-called "trolley system of electricity," and tbat, if to do so, he will utterly ruin the paving of Coliseum street, thereby inflicting upon petitioners irreparable in· jury, besides depreciating the value of their property more than $10,000; that the trolley system of electricity is an unmitigated" nuisance, "pre-eminently dangerous to lif and destructive to peace and comfort," and that its , adoption for a narrow street like Coliseum street, which has a width of about 25 feet, would prevent absolutely the safe use of said street by other vehicles, and would render the approach in carriages to petitioners' houses unsafe, if not impossible, and would destroy the quiet enjoyment of their homes. '1'bey pray for citation of Hart, and for judgment decreeing-First, tbat the alleged adjudication to Hart under ordinances Nos. 5784, 6260, and 6595, C. S., and the contracts of date the 8th of June and the 9th of September, 1892, to be illegal, null, void, and of no effect; second, perpetually enjoining Hart from enteriD/1:" upon Coliseum street between Louisiana avenue and Race street, for the purpose of constructing a street railway, under and by virtue of said ordinance and the said pretended contracts, and from disturbing the surface or paving of said Coliseum street between Louisiana avenue and Race street, or making any excavations or constructions therein or thereon in furtherance of the purpose of said ordinance :md contract; and, third, praying for a preliminary injunction, in the event of such disturbance, during the llenclency of this suit. Hart, being a citizen of New York; appeared, and removed this cause into the circuit court of the United States for the eastern district of Louisiana. When. the record was filed in the clrcuit court the complainants appeared and filed an amended and supplemental bill, setting forth the bringing ami removal of the suit, and reaverring all the matters contained in their petition; and further averring that, as front proprietors of property on Coliseum street, between Louisiana avenue and Race street, the railroad proposed to be constructed by defendant and operated by the trolley system of electric cars, by reason of its impairing the pavement on said street and obstructing the highway and the approach to their residences, and by its noise and danger, wlll be a nuisance speclally affecting and injuring irreparably them, and each of them, in their comfort and convenience and rights of property; further a.verring that under the <2harter of the city of New Orleans the council had no power to grant authority to said Hart to construct and operate a road by means of the trolley system of electricity. They further show that Hart had entered upon a portion of the street since the filing of the suit in the civil district court, and they pray for a preliminary injunction to restrain him. Notice was given, the matter was heard, the circuit court granted the injunction, and Hart, under section 7 of the act, approved March 3, 1891, has appealed to this court. On the hearing of the injunction the complainants offered no affidavits in support of the allegations of their petition and amended bill, except the affidavit of one of the complainants, Newton Buckner, as to the truth of the averments of the petition and bill themselves. The defendant offered the affidavit of the clty engineer and that of M. J. Hart, together with maps of Coliseum street and Constance street, to show that Coliseum street between Race street and Louisiana avenue was 25 feet wide from outer curb to outer curb, and that there was a space of 9 feet and 2 lines on each side of the railroad track between the center of the rail and the outer curb, leaving ample space on each side of the track for the use of the general public and the passage and standing of vehicles; and showing that the double track on Constance street would leave oniy 4 feet and 2 lines between the trend of the rail and the exterior curb,-a space entirely too narrow to permit the standing or passage of a vehicle. The affidavit of Brown, city engineer, M. J. Hart, and G. A. Hopkins, engineer, together with the profiles of Coliseum street, and the specifications for the construction of the railroad on that street, tend to show that the taking up of the gravel pavement, the laying of Belgian block between the tracks, and a bunting of the same on each side of the rail, and the renewal of the gravel on the street in accordance with the specifications, will make the street better, more substantial, and more durable
v.54F.no.6-59
980
FEDERAL REPORTER.
for pubUc 11119 than befQre·.. The .a1!ldavlts of R. T. Macdonalll anll B. 1. Httthorne that the,trolley system 18 not It nuisance, and that It 18 not dangerQuslo lite or property. . assignments of error on appeal: "(1) That the court Tlie,followiJ:l.g are erredclli'boldtng that coun,cll had no right or power to change the route ,of. sa.1d road from· ConstaJl.Cll and Laurel to Colis.eum street, from avenue to Race street; Without three months' advertisement and adjudication; (2) thatthe court erred, in holding that the lUljudication of the at a PflC,fil to be paid in grav!!l pavement was void; (3) that thecoprt erred in holdtn',that the complainants had any right or authority, uuder the allegations of 'their bill, and in the' absence of the city of New Orleans as a party in the record, to raise the .questions covered by assignment in error No.2; (4) that the court erred in holding that the complainants were' riot estopped, under the facts set forth in the atlida,yits, from raisiDc any objection to the coristrUction by the defendant of the railway in question grants from the city of New Orleans."
EdgAr H. Farrar, (D. F. Jonasanil Ernest B. Kruttschnitt, on the brief,).(or appellant. ' : Harry n. Hall andW. Wirt Howe, for appellees. Be(ore PARDEE and McCORMICK, Circuit Judges, and LOCKE, District Judge. PAJlDEE, Circuit Judge, (after stating the facts.) The order appealed from enjoins the defendant from entering upon Coliseum street, between Louisiana avenue and Race street, for the purpose of constructing a stref!t and from disturbing the Surface or the pavh;lg of saidColiseuinstreet, or from making excavations or constructions therein or thereon, by virtue of certain city ordinances and contracts recited.' The propriety of this is all that is befol'e us for review. Whether the appellees, complainants in the court below, are entitled to all the relief prayed for in their original apd supplemental bills must first be determined in the court below, before.this court can review on appeal. The contention of appellees in this· court and in the 'court below, as stated by their counsel in the elaborate brief filed, is as follows: "Thi$ suit is brought by complainants, not as taxpayers complaining of a fraudulent or illegal contract prejudicial to the said complainants in common with aU other citizens, by them as ownel'8 of realty whose peaceful enjoyment thereof is threatened. They aver that defendant has no right to enter upon the streets aforesaid, for the purpose of constructing hts railroad.·I:Ie answers that he has, by virtue of the authority granted to Wm by !lrdtnances ,5784 and 6595. Complainants reply that, in so far as said ordinauces pretend to the trespass complained of. they are illegal, and tb,ey pray to have them 80 deelared by the court. They do not ask that, as between the .city and defendallt, the so-called 'contract' be annulled; but· wben defendant attempts by virtue of them to invade respondents' rights that they are illegal, and do not justify the invasion. 'fhey do not a,ttempt to invalidate any of Mr. Hart's so-called 'rights: exeept in so far as. they are used by him as pretended authority for laying his tracks on Coliseum street between Louisiana avenue and Race street."
. Owners of lots abutting on or adjacent to a public street of a city, even if not owners of a fee in the street, have the right of access and the right of Q.uiet enjoyment, and such rights are property which may be protected' by ipjunction when invaded without legal authority. Dill. Mon. Corp. § 587b; Dudley v. Tilton, 14 La. Ann.
931
283; Schurmeier't. Railroad Co., 10 rtfinn. 82,{q.il '59;) Wetmure v. Story, 22 Barb. 414; v. Hamilton, 40 Wis. 402. Where there is an unauthorized obstruction or closing of a public street, all the adjacent owners who sustain by such obstruction a special injury can maintain a suit for injunction against the party or parties making the obstruction. Dudley v. Tilton, supra; Pettibonev. Hamilton, supra; Griffing v. Gibb, 2 Black, 519. In such a suit no other parties defendant than the alleged trespasser are required. Railroad Co. v. Ward, 2 Black, 485. In the case under present consideration, it seems that all the necessary parties, if not all the proper parties, are before the court,. The asserted right of appellant to invade Coliseum street was only acquired one month and eight days prior to the institution of the suit for injunction. It was granted by the council of the city of New Orleans, against the public protest of one of the complainants to the suit and other residents and property holders on Coliseum street. As we gather from the record, the actual invasion of Coliseum street between Louisiana avenue and Race street took place since the commencement of the suit, and then was apparently for the purpose of raising the question of right. Until the actual or attempted invasion of the street, the property holders thereon were not required to go into the courts to attack a pretended right whioh, until their street was invaded, in no wise affected them, except in common with all the other property holders and taxpayers of the city. Considering the public protest of the property holders, the short period elapsing between the acquisition of the right and the institution of the suit, and that the complainants were not speoially called upon to act until their street was actually invaded, we are of the opinion that there has been no acquiescence, no standing by, nor sleeping upon rights, to any such extent as would equitably estop the plaintiffs from maintaining their legal rights. The transaction between the city of New Orleans and the appellant by which appellant acquired all the rights that he has to a street-railroad franchise on Coliseum street was one of barter and exchange; i. e. a street-railroad franchise was exchanged for a certain amount of public work and material in the nature of gravel paving to be thereafter constructed on the streets of the city. The specifications as to the street-railroad franchise disposed of were reasonably definite and certain. Those with regard to gravel paving to be furnished were, perhaps, definite enough as to character and composition, but were indefinite as to a very important element of cost,-the street or streets upon which the work was to be done being left to the after-determination of the city council. The expense of building, say 60,000 square yards of graV'el pavement in the streets of New Orleans, largely depends upon the location of the streets, the excavations or filling necessary, and the distance from the main line and switches of the illinois Central Railroad. The nature of the exchange offered by the city was such as to necessarily limit competition, and to a marked degree. No one, however desirous he may have been of acquiring the street-railroad franchise offered by the city council, could safely bid for the same,
932
FEDERAL REP()RTER,
UDlell8 he was also wUllng and ready to deal in gravel, and undertake the business of paving streets with gravel; and certainly no contractor engaged in the business of street paving could have bid on. the' contract to the advantage of the city unless his means permitted him to buy, own, and operate a street-railroad franchise; Complain{i;i1.tsin the court below (the appellees here) contend that the said trahsaction was and is absolutely null and, void, because entered into without authority on the part of the city council, and in of the express limitations imposed upon the city council in the charter of the city and by subsequent acts of legislation. They say (1) that the city of' New Orleans has no authority under. its charter to .authorize a street-railroad to be operated with.electric power a$ a motor; (2) .that the use of the overhead system is a nuisance; (3) that the street-railroa.d franchise disposed of to appellant was not advertised according to law; (4) that the franchise, as. tQ Coliseum. street, between Louisiana avenue and street, was not advertised at all; and (5) that under the act of'1888 the cityo(New Orleans is prohibited from disposing of a stre.et-railroad franchise otherwise than for cash and to the highest bidder: Anyone ()f these objections, if well taken, sustains the pr()priety of the order from. 'r,he charter of the city of New Orleans (Act No. 20, Acts La. declares the sa,id city"rsltereby created, incorpprateq, 8Jld established as a political corporation by the name of the city of New Orleans, with the follOWing powers, Rlld no more."
sootton8. of .th,e said, charter .(paragraph 13) declares that the city colincil$all"Have ilie ,power to authorize the use of the streets for horse and steam railroads, l!Jl.d to regulate the same; to.!:'equire and compel all lines of railway or tramway inRlly one s;treet to rutI, on Rllduse the same track Rlld turntable, and compel the¢ to keep "conductors on their cars, and compel all such companies to keep and repair the streets, bridges, and· crossings through or over whicll. their cars .run. "
11
,And section 21 provides that"All for public works or for materials or supplies ordered by ilie counell shall be offered'by the comptroller at public auction, and given to the lowest bidder who can furnish security satisfactory to the council; or the same shall, at the discretion of the' council, be advertised for proposals to be delivered to ilie COIl1ptwller in Writing, sealed, and to be opened by such comptroller in the presence of the finance committee of the said council, given to the persons mliking the lowest proposals therefor, who can furnish securIty'satisfactory to the council: provided, that the council shall in either case have the right to reject any or,all of the bids or proposals."
At the
session9f the legislature, it was provided-
"That hereafter, whenever the city of New Orleans, through her proper authorities, shall contract with private corporations or individuals for the sale or leMe of public privileges or franchises, such as the right of way for street railroads or for other public undertakings within her legal power and control, the price paid for the sale or MUle· of publie privileges or franchises shall be applied by suel),· <lity in the performance of work of public improvement of a permanent such as paving of streets, embelliShing parks," etc. A.ct 81, Acts La.
HART V.
933
By Act 185, (Acts La. 1888,) entitled "An act further defining the powers and duties of the council and officers of .the city of New Orleans, and imposing additional limitations thereon," it is provided in the first sectioD"'"That neither the council of the city of New Orleans, nor any committee thereof, nor any of the officers of said city, shall have power to bind the city by any contract for any public work, or for the purchase of any materials or supplies for any of the departments of the city government, unless there shall have been vreviously passed a resolution authorizing .the said contract or the said purchase, and unless the said contract for public work or for the furnishing of said materials and supplies shall have been let by the comptroller to the lowest bidder, as provided in section 21 of said chartel": provided, however, that In cases of emergency the officers of the various departments may make bills for supplies of materials not exceeding fifty dollars; but In all such cases immediate report In writing of the making of such bill shall be made by the head of the department to the mayor, setting forth the reason of its action, which report shall be laid by the mayor before the council, and receive the approval of that body before the said bill is ordered paid." .
And in the second section"That on the first of January and July of each and every year each and every bead of every department of the city government shall lay before the council an estimate of the supplies and materials (within the limitation of the appropriations made in the budget for his department) that may be needed In his department during the current six months; and the said council shall approve or modify, In its discretion, said estimate, and shall thereupon direct the comptroller to advertise and adjudicate the contract to furnish said supplies and material, or so much thereof as may be needed, to the lowest bidder, as provided in section 21.of the city charter,"
And in the fourth section"That said council shall not have power to grant, renew, or to sell or to dispose of any street-railroad franchise, except after at least three months' publication of the term and specifications of said franchise, and the same has been adjudicated to the highest bidder by the comptroller, as provided In section 21 of the city charter."
The intention of the legislature in enacting the foregoing provisions is apparent. The powers given to the city council undeJ; the charter are· to be strictly construed. In all purchases of pu.blic work, supplies, and material full notice and free competition are required, and the contracts therefor are to be given to the lowest bidder. In any disposition of a street-railroad franchise, either by grant or renewal, a full publicity of exactly the franchise to be disposed of, with free competition, and every adjunct to secure the best price, is required. No room is left, if the statutes are complied with, for secrecy, jobbery, favoritism, or the exercise of political and private influence, conceded by counsel to be the mischief sought to be remedied, particularly by the act of 1888 entitled "An act further defining the powers and duties of the council and officers of the city of New Orleans, and imposing additional limitations thereon." An examination and comparison of these acts in the light of the conceded legislative intention lead to the further conclusion that in the purchase of public works, supplies, and material, or in the disposition of street-railroad franchises, the contract of sale
54. city CQ1JD,cll. The contract of sale is an wlpcll.one gives &.1;hing for a price in current money, &J:\4 ,?,ther giveEi ;theptice injOrdef to have the thiJ;lg itself. Civil Code La. art. 2439. It is only by a sale in public market that eX;1cted.by the statutes canbe obtained. In public auction and from the lowest bidder, and,,to,dispose of, at public auction to the highest bidder,-almost ofneeessity,it seems,-:'the measure of value must be in current mo.ne;r:. ·The act ,of quoted above, distinctly infers a price or sum,o(ill'oiley to ,be obtained from the, sale or lease of street·railand.. directs the application thereof. The act of 1888elearly implies in every section quoted that the city council is :purehl;lBe public work and material and qispose of street-railro,ia for ,C1u:rent money. The judge of the circuit court, says: "It Seems to me thlit Where a bId is Invited in com or wIne or any goods, wares, or merchandIse It necessarily more or less circumscribes the freedom of the competition, for there is more or less dIfficulty in obtaining any article, even "to those who have the money. It is not enough that the city needs the article;, ,the artIcle itself .must also be as easily obtainable as money. The sub· stitutipn ot anythIng for money itself would naturally give an advantage to w):Lo had that article, and who .know how or where and upon what terms It couId be purchased. and would make the sale less calculated to absolutely secure· the hIghest price, and thus defeat the object of the statute. SectioJl.f. (Act No. 135 of the Acts of 1888,) above referred to, requires that the ",ale shall be to the highest bIdder by the comptroller, as provided in sec· tIon21 of:thecity charter. That section, whIch Is found on page 25 of the Acts of 1882, requires that the sale shall be offered by the comptroller, at public auctIon, and given to the lowest bidder. Now, It seems'to me clear that, consIdering the object the legislature had in placing this prohibition upon the commQp,. .<1Qunci1, requiring the long advertisement ot, three months, and sale .. ata.uctIbnof railroad fr8.nchises, they meant that the sale should be for that Wb1ch'wpUId least restrict the number of purchasers, as well as for the amo1lJlt oftlle bId, and therefore meant that It should be for money; and that the sale 0'1. the entire franchise to the defendant, having been for gravel pavement, and not for money, is invalId." 52 Fed. Rep. 837.
'This'
is very cogent.
..\S. has been noticed above, .the transaction between the city of New Orleans and the appellant, disposing of a street-railroad franchise, was one of barter and exchange, necessarily limiting competition. The authority to make such a transaction is not granted in express words in the charter, nor is it necessarily or fairly imor incident. to the powers expressly granted; nor is it essential to the declared objects and purposes of the corporation, but.
'4'Itls and undisputed proposition of law that a IJlun1clpal corpora· tionpossesses and can exercise the followIng powers, and no others: FIrst, thosegratltedin eXDress words; second, those necessarily or fairly implied in o;r incident to the powers expressly granted; third, those essential to the .objects and purposes of the corporatIon,-not simply convenient, but Any fair, reasonable doubt concerning the existence of power is tesolved by the courts against the corporation, and the power is denied. Of every municipal corporation the charter or statute by whIch it is created Is its organic act. Neither the corporation nor its officers can do any act, or make any con1;ract, or incur any liability, not authorized thereby, or !;ly filome legislatIve act applicable thereto. All acts beyond the scope of the powers granted are void." DIll. Corp. § 8U.
DOE tI. WATERLOO MIN. CO.
9:l5
on the contrary, as has been shown, It is In conflict 'with the legislative intent as declared in the charter and in the subsequent legis· lation referred to. At all events, there is a fauo, reasonable doubt concerning the power of the city council to enter into the transaction complained of, and the same should be resolved against the corporation, and the power denied. "VVhatever is done in contravention of a prohibitory law is void, although the nullity be not formally directed." Rev. Civil Code La. art. 12. The other nullities alleged against the rights of appellees need not be considered. It follows that the order appealed from should ,be affirmed, and it is 80 ordered. ' DOE V. WATERLOO MIN. CO. (Circuit Court, S. D. California. March 27, 1893.)
No. 183.
1.
MINFlB AND MINING-PATENTB-RIGHT TO FOT,T,OW DIP.
The patentee, and even the mer" possessor, of a claim, trnder license from the govemment, has a right to all minerals Iring vertically beneath thn surface of his claim, subject only to the right of the law1u1 posscssor of a neighboring claim having parallcl end lincs to follow any lode, the apex of which lies wltl:in his claim, on its dip within the limIts of Infinite planes vertically pl'ojected through such end lines. An unlawful pOs8cssor has no such right to follow the dip. Montana Co. v. Clark, 42 Fed Itep. 626, disapproved. v. Davey, (Oak.) 26 N. W. Rep. 887, approved. Iteynolds v. Mining Co., 6 Sup. Ct. Rep. 001, 116 U. S. 68;, distinguished. Where the end lines of a snrface k.catIon of minIng lands, as fixed and declared In the government patent, are parallel, tile patentee's right to follow the dip beyond his side lines cannot be defeated by showing that in the original location of the claim the end lines were not panlllel. The patent while unrevoked is conclush-e on this point. Iron Silver Min. Co. v. Elgin Mining & Smelting Co., 6 Sup. Ct. Hep. 1177, 118 U. S. 196, and MinIng Co. v. Tarbet, 98 U. 463, distinguished. LTNES-PARAT,LET,ISM-PATENT CONCT,UfHVE.
2.
8. 4.
SAME.
The patentee's right to follow the dip exists by virtue ot Rev. St_ § 2322, whether the express grant of such right Is contained in the patent or not.
,
SAME--AnANDONMENT OF PART OF CLAIM.
Where a mining claim as located does not have parallel end lines, but the United States surve;yor in surveying it draws In one end line so liS to makethe.m parallel, the rejection of such survey by the locator '\\ill not deprive bis assignee, upon thereafter accepting the survey, and obtaining a patent in accordance therewith, (abandoning the portion of his claim not included in the survey,) of his right to follow the dip beyond his side lines within the vertical planes drawn through the parallel end lines of the survey. ' Where mineral deposits are separated Into three well-defined parts, traceable for a great distance in their length and depth, and distinct foot llJldhanging walls, each part is a separate vein, within the meaning of the mining laws /,>iving the light to follow the dip of a vein beron,j the side lines of the claim, although there are many ore-bearihg cracks and seams running out from each vein, and sometImes extending froll one to the other. lJlureka Con. Min. Co. v. Richmond Min. Co., 4 Sawy. 302, distinguished.
Ii.
SAME-WHAT CONSTITUTES A LODE.