BUcx:NERV.
835
(CircuU OoUrt, E. D. LoUisiana. November 18,1892.) 1. ELECTRIO STREET RAILWAY8-FRANCHISE-POWE'RS OJ' COUNCIL.
S.
The charter of the city 01 l'iewOrleans (LlIowS LlL 1882, No. OO,18),provides, in· teralia, that the, cOpimon cOllncil shall have power, to authorize the use of the 'streets for "horse and steam' 'railroads." Held, that the WOrds "horse and steam railroa4s" wer!' not words ofllmitation" and that the counoU was empowered to grant such franchise to electric railways. Laws La. 1888, Act No. 185. provides that the council shall not have power to of any "treet-railroad fraI1cbise except after at least three months' publication of thllterlDltand specifications of said and after adtudicatlon of same to the highest bidder at publio auotiOn, 88. proviaed for by sectIOn 21 of the city charter. ,lIeld that, after a adjudication to the defendant Of a franchise embracing Certain streets, the coulloil could not, by simple agreement with defendant, with,aIlt readvertlsement or any n4;lw public auctioD, change the route so BSto embrace 16, blocks .Qot 11l01ulled in ,the origillal franchise. .' , " ' '
SAME.
S. SAHE.
.
The provis,i,.on th,at the sate, Sh,al,l be ma,de to the highest bidder means the high.. est bidder ill money, and the sale of the franchise is invalid wheI:C the speciftcationscallfor, and tbe adjudication is made 'to the highest bidder in, "square yards of gravel pavement." ·· SAH_INJUNCTION-LACHEs'
the franchise and filinjt of bUl in front of their premises was one month and eiA'ht days. Held. thatthi8:was not sucbdelay 8S amounted to an acquiescence in the grant. such as :would preclude complainants from asserting their " '
Tbe interval betwelln the sale
0',
In Equity. Bill by Newton Buckner and others against Jndah Hart to enjoin the construction of an electric trolley railway in front of complainal1ts'premises on Coliseum street, New Orleans. Heard on motion for an injunction pendente lite. Granted. H. H. BaU arid W. W. Howe, for complainants. Farrar, Jotna8 Krutl8chnitt, for defendant· . BILLINGS, District Judge. This case is before the court upon an application for an injunction pendente lite, which has been heard on the bill and amended bill, and upon counter affidavits and exhibits. The first question presented is as to the power of the common council to grant to the defendant the franchiSe to lay and operate upon any of the streets of the city of New Orleans a street railroad which shall be propeUed by electricity after the trolley method or system. The council have granted such a franchise. Had it the authority to make such a grant? The answer to this question must be found in the present charter of the city of New Orleans, (Act No. 20, 1882.) The provision on that snbject is found in the existing charter, (Acts 1882, No. 20, p. 14.) Page 21, § 8, among other things, provides that the common council shall also" have the power to authorize the use of the streets for horse and steam railrQads, and to regulate the same; to require and compel all lines of railwaycir'tramway in any one street to run on and Use one and thesame track and turntable; tocompelthem to keep ductors on their cars, and compel all such companies to keep in repair
836
vol. 52.
the street bridges and crossings through or over which their cars run; to open and keep open and free fropl.obstruction all streets, public squares, wharves, landings, lakeshore arid' rIver and canal banks." It has been argueq}>y the solicit.ors .the complainants that, when the legislature committed to the common" council the power to authorize "horse and stearq the.se words '.'horse and steam" were ",ords and that nopqweris given with reference to railand it has been urged by the solicitor· for the defendant that· ti1ese,wol'ds were words of illustration, and that the intention of the legislature was to'ccimmit to the city governmEln:tthe authority to· 8uthorizestreet railroads, no matter what was tn¥l'!1otive power. Itis difficult tQ see. any reasondwhy tpe legislature should not hase committed to the 'common council the' authority to the UEl6' propelled by any other motive ,:power as well asthuse propelled.by the two specified. It seems to me they granted the discretion :asto'll.llstreet railroads, and mentioned qply f,'porse.,,and steam" railroads, because, according .to the then exist-' 'sta'te;gqtospeak, of the'art"horses and steam were the only means for' the'''Pf()[>ulsion of street cars hlllse. Not to adopt this view would be to infer that the legislature meant to exclude 'all other means of the, of . t discover. Such a ,prohibition would much more naturaUyhave been put in a posform. The public"gbodreqriired that the commoncouncil should be at liberty to place at the 8ervice of the public street rail:FOaBs ,the; in the means of propulsion to, time discover, the matpuplic cinCPP.\leniencebeing left.to be c,onsidered by the common council. I.t i$ the dutyof courts to interpret statutes in aid of theiplll;t l1 if{lst ,Qbje9t, · So that" far· as cOllqernS the objections to the nature of tqemptive pO'Yerand the method by which it is used, 'my opinion is that it ought not to be maintained. . sec9P4 opjectiqn arifles. from manner in whieh the fran...n,4;originally adjudicateq, .The facta as to this point' are'thaUhe and in th(J streetto Audubon parkandback, a of 6 wMch,from. St. Mary street to LQuisiana avenUe, a distance of 16 blocks, bo.th' go.ing and retmu·{ng.. After this adto ,tpe defendant, wlthoqt. any fresh' l,ldvertlsement or any newP:U;91ic ,ll.uction, bpt by the simple, agreement between the common council' f\.Jl(( tl;le defendant, the route of the railroad. was changed so that the return, track WRStq be laid for that distance, :viz., 16 blocks, through so tpat there never was any advertisement or public ofJhe franchise so far as. the road run!!. through Coliseum street. ill the the route between the termini had been }H1Yrll\rtI Ejedand;Pllphc]y so!d, llpcl, that 9hange was of suc,h ch,l.tracte.r,1l;llj.t to malp,'l It nuglltfal1:Wlthm,the power to perd?ne. The statutevvhich controls thia matter is .f\ct, ·. 1,?5,:p,. Acts p. 4: , "
BUCKNER V. HART.
837
"Be it further enacted.... etc., "that said council shall not have power to grant. renew. or to sell or to dispose of any street-railroad .franchise. except after at three months' publication of the term and specifications of said franchise, and after the same has been adjudicated to the highest bidder by the comptroller. as prOVided in section 21 of the city charter." The indispensable prerequisite of a grant of any street-railroad franchise is "publication for three months of the term and specifications of such franchi.se." followed by an adjudication at public auction. The object which the legislature had in view was to secure a full price by insuring free competition after complete information as to the thing to be sold by advertisement of "the term and specifications of the franchise." The only franchises dealt with by the legislature were street-railroad franchises. Specifications of such a franchise for the purpose above set forth must include not only the termini and the general route, but !11soall the streets through which it is to pass. For every street has its own patronage of the cars, and, unless the franchise was confined to the streets enumerated in the advertisement and adjudica. tion at the auction, there might be the acquisition of a franchise, the value of which could not with any accuracy be ascertained from the advertisement. If a change in 16 blocks is permissible, it is difficult to SE:'e where the departure from the statute would stop. The embarrasS! ment in which the city found itself by having permitted the two tracks on Constance street cannot be ground for disregarding the law. As it seems to me, the defendant has not acquired a title to the franchise so far as it is to run through the 16 blocks upon Coliseum street. 3. The third objection is to the validity of the entire grant. I think it might weJl ,be, .held that the reference. to the on file in the comptroller's office in the advertisement was tantamount to their insertion in, the advertisement itself. The specifications thus on file call for, and the adjudication at public auction was made "for, the highest bid in square yards of gravel pavement," and not for the highest bid in money. It seems to me that where a bid is invited in corn or wine or ()r merchandise, it necessarily more or less any scribes 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 substitution of anything for money itself would naturally give an advantage to those who had that article, and who knew how, or where, and upon what terms, it could be purchased, and would make the sale less calculated to absolutely secure the highest price,and thus defeat the object of the statute. Section 4 (Act No. 135 of Acts 1888) abo\'e referred to, requires that the sale shaH be to the highest bidder by the comptroller as provided in section 21 of ,the city 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 I it [<werns Qlearthat, considering the object the legislature had in placing this.prohibition upon the common conncil, requiring the long
838
rEDER;&L' REPORTER,
vol 52.
a<l vertieement Of three monthsltnd sale at auction 0f railroad' frllnchises, the sale shotile;t.be for that which would' le81Jt restrict UN as well as the. amount of ,the Qid;and theretore meant that be for money; and that the we .of the entire franchise to the defendant having been for gravel pavement, and not for money;.." ·invalid. ' 4; ,There isaremaining point to be considered, as to whether there has been such acquiescence in the grant to the defendant on the part of the complainants, and such a sleeping upon their rights, that they ought to be considered as having in equity no right to urge the objections to the defendant's grant. , ThefinaI ordinance-that which related to Coliseum street-was passed August 2, 1892, and the grant to the defendar;lt: this ordinance was made on September 9, 1892. The original bill in the state court was filed October 17, 1892. This makes the interval between the passing of the ordinance and. the filing of the bill tWO>months and a half, and the interval between the date of the grant and .the filing of. the bill one month and eight days. I do not think that this delay, under the cireumstances as they appear by the bill and affidavits,should be deemed such an acquiescence as would in courtBprecludetbe complainants from asserting whatever rights they may have. The conclusion which I have reached is that upon the second and third grounds mentioned above..the injunction should issue.
No.1.
L IllnCTP:N1-BTJDDOII-OonoJ' UNlUIOOBIIIID LosT DJDID. Plaintflfain'ej8Otm81lt, miller a deed ldven by the heirs of F. 1111888, claimed a one-third interest in a boundary of lana. in Virginia patented to F., J., and T. In 1798., claimed, tl1at F. intereat to T. in 1796; that the whole traet O.ln 1884, for delinquent tIloxeB against To'B heirs, and deeded to O.. bY,.!."the::&rk Of. the con.n,t.' . court in 1836.'; ,and that 0., his heirs, and biB and t.heir 011«_, .\lQntinued In possAssion ever Bince. Defendant Bhowed tbaUhe 'from F. to T. waB lost; that after T.'B death it had been proven in a eountq in Tenl1eSBee and recorded there in 1816; tbat a certified copy waa recorded . a .county in Vi:rgil)ia where a part of the land cpnveyed, no part of that 'fricontroversy, was situated ; and' offered in evidence a copy of the latter record.. HeW. that such copy was properly admitted as Becondary evidence In oonnectil>11 "fith other evidence tending to show an abandonment of F.'B titJ,e by biB heirs, the jury being cautioned that it could not' be conBidered &B construotive n0tice to ODe purchasing in good faith for value. . ... TAJUTIOll-Fqllli'EITURES-VIBGINIJ, ST.A.TVTlIlIl. Act Va.)iarch 19, providing for the release of forfeitures of land for payment of tUes, appliedoIllyto the years prior thereto,. and did not atrect tll-e BaleB directed by Ule act of March 10, 1882,.for failure to pay taJ:811 thereafter accrUing.
e.
SAlIB.
i
Act Va. Feb. 117, 1885, I 9, reqniring ownen of landB granted by the Btate, anel Ilever entered On Ule boob ot the oommissioller of reVenue of Ule proper COUI1Q',