HART v. BUCKNER et al., 54 F. 925

PABDEE, Circuit Judge, (after stating the facts.) The order appealed from enjoins the defendant from entering upon Coliseum street, between Louisiana avenue and Bace street, for the purpose of constructing a street railway, and from disturbing the surface or the paving of said Coliseum street, or from making excavations or constructions therein or thereon, by virtue of certain city ordinances and contracts recited. The propriety of this order is all that is before us for review.

Whether the appellees, complainants in the court below, are entitled to all the relief prayed for in their original and 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: “This suit is brought by complainants, not as taxpayers complaining of a fraudulent or illegal contract prejudicial to the said complainants in common with all other citizens, but by them as owners of realty whose peaceful enjoyment thereof is illegally threatened. They aver that defendant has no right to enter upon the streets aforesaid, for tile purposé of constructing his railroad. He answers that he has, by virtue of the authority granted to him by ordinances 5784 and G595.

Complainants reply that, in so far as said ordinances pretend to authorize the trespass complained of, they are illegal, and they pray to have them so declared by the court. They do not ask that, as between the city and defendant, the so-called ‘contract’ be annulled; but'they say when defendant attempts by virtue of them to invade respondents’ rights that they are illegal, and do not justify the invasion. -They do not attempt to invalidate any of Mr.

Hart’s so-called ‘rights,’ except 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 quiet enjoyment, and such rights are property which may be protected by injunction when invaded without legal authority. Dill. Mun. Corp. § 587b; Dudley v. Tilton, 14 La. Ann. 283; Schurmeier v. Railroad Co., 10 Minn. 82, (Gil. 59;) Wetmore v. Story, 22 Barb. 414; Pettibone 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; Pettibone v. Hamilton, supra,; Grilling 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.

Hie 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 which, until tlieir 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 specially 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 rig]its that he has to a street-railroad franchise on Coliseum street was one of barter and exchange; L e. a street-railroad franchise was exchanged for a certain amount of public work and material in the nature of gravel paring 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-deternaiiiaiion of the city council. The expense of building, say 60,009 square yards of gravel 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, unless he was also willing 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.

Complainants in the court below (the appellees here) contend that the said transaction was and is absolutely, null and void, because entered into without authority on the part of the city council, and in contravention 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 as a motor; (2) that the use of the overhead “trolley” system is a nuisance; (3) that the street-railroad franchise disposed of to appellant was not advertised according to law; (4) that the franchise, as to Coliseum street, between Louisiana avenue and Eace street, was not advertised at all; and (5) that under the act of 1888 the city of New Orleans, is prohibited from disposing of a street-railroad franchise otherwise than for cash and to the highest bidder.

Any one of these objections, if well taken, sustains the propriety of the order appealed from. The charter of the city of New Orleans (Act No. 20, Acts La. 1882) expressly declares that the said city— “Is hereby created, incorporated, and established as a political corporation by the name of the city of New Orleans, with the following powers, and no more.”

Section 8 of the said charter (paragraph 13) declares that the city council shall— “Have the power to authorize the use of the streets for horse and steam railroads, and to regulate the same; to require and compel all lines of railway or tramway in any one street to run on and use the same tract and turntable, and compel them to keep conductors on their cars, and compel all such companies to keep and repair the streets, bridges, and crossings through or over which their cars run.” And

section 21 provides that— “All contracts for public works or for materials or supplies ordered by the council 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 the comptroller in writing, sealed, and to be opened by such comptroller in the presence of the finance committee of the said council, and given to the persons making 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 same session of 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 lease 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 lease of public privileges or franchises shall be applied by such city in the performance of work of public improvement of a permanent character, such as paving of streets, embellishing parks,” etc.

Act 81, Acts La. 1882.

By, Áct 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 section— “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 previously 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 lot by the comptroller to the lowest bidder, as provided in

section 21 of said charter: 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 head 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 Ms department) that may bo needed in his department during the current six mouths; 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 3\ave 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 after the same has been adjudicated to the highest bidder by the comptroller, as provided in

section 21 of Uie city charter.” The intention of the legislature in enacting the foregoing provisions is apparent. The powers given to the city council unden the charter are to be strictly construed. In all purchases of public 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, foi* 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 is alone permitted to tbe city council.

Tbe contract of sale is an agreement by wbicb one gives a tiling for a price in current money, and tbe other gives tbe price in order to have tbe thing itself. Civil Code La. art. 2430. It is only by a sale in public market that tbe free competition exacted by tbe statutes can be obtained. In order to purchase at public auction and from tbe lowest bidder, and to dispose of at public auction to tbe highest bidder, — almost of necessity, it seems, — tbe measure of value must be in current money.

Tbe act of 1882, quoted above, distinctly infers a price or sum of money to be obtained from tbe sale or lease of street-railroad franchises, and directs tbe application thereof. Tbe act of 1888 clearly implies in every

section quoted that tbe city council is to purchase public work and material and dispose of street-railroad franchises for current money. Tbe judge of tbe circuit court, on this point, says: “It seems to me that 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 substitution of anything for money itself would naturally give an advantage to those who had that article, and who know 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 the Acts of 1888,) above referred to, requires that the sale shall 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, it seems to me clear that, considering the object the legislature had in placing this prohibition upon the common council, requiring the long advertisement of three months, and sale at auction of railroad franchises, they meant that the sale should be for that which would least restrict the number of purchasers, as well as for the amount of the bid, and therefore meant that it should be for money; and that the sale of the entire franchise to the defendant, having been for gravel pavement, and not for money, is invalid.” 52 Fed. Rep. 837.

This reasoning is very Cogent. “It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, — not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved 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 contract, or incur any liability, not authorized thereby, or by some legislative act applicable thereto. All acts beyond the scope of the powers granted are void.” Dill. Mun. Corp. § 89. As has been noticed above, tbe transaction between tbe city of New Orleans and tbe appellant, disposing of a street-railroad franchise, was one of barter and exchange, necessarily limiting competition.

Tbe authority to make such a transaction is not granted in express words in tbe charter, nor is it necessarily or fairly implied in or incident to tbe powers expressly granted; nor is it essential to tbe declared objects and purposes of tbe corporation, but. on the contrary, as has been shown, it is in conflict with the legislative intent as declared in the charter and in the subsequent legislation referred to.

At all events, there is a fair, 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. “Whatever is done in contravention of a prohibitory law is void, although the nullity be not formally directed.” Kev. 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 so ordered.