A legislative grant of an exclusive right to supply water to a
municipality and its inhabitants, through pipes and mains laid in
the public streets, and upon condition of the performance of the
service by the grantee, is a grant of a franchise vested in the
state, in consideration of the performance of a public service,
and, after performance by the grantee, is a contract protected by
the Constitution of the United States against state legislation to
impair it.
An exclusive franchise granted to supply water to the
inhabitants of a municipality by means of pipes and mains laid
through the public streets is violated by a grant to an individual
in the municipality of the right to supply his premises with water
by means of a pipe or pipes so laid.
The facts which make the case are stated in the opinion of the
Court.
MR. JUSTICE HARLAN delivered the opinion of the Court.
This suit was commenced by bill in equity filed by the New
Orleans Waterworks Company, a corporation of Louisiana, against
Robert C. Rivers, a citizen of the same state. A demurrer having
been interposed and sustained, the bill was dismissed. The present
appeal raises the question whether the plaintiff is entitled, under
the allegations of its bill, to the relief asked.
The general object of the suit is to obtain a decree perpetually
enjoining the defendant from laying pipes, mains, or conduits
Page 115 U. S. 675
in the streets or public ways of New Orleans for the purpose of
supplying the St. Charles Hotel in that city, distant six or seven
blocks from the Mississippi River, with water from that stream. The
plaintiff rests its claim to relief upon the ground that it had, by
valid contract with the state and city, the exclusive right, for
the full term of fifty years from March 31, 1877, of supplying the
City of New Orleans and its inhabitants, other than those
contiguous to the Mississippi River, with water from that stream by
means of pipes and conduits placed in the streets of that city, and
that the obligation of that contract was protected by the
Constitution of the United States against impairment by any
enactment of the state. The defendant bases his right to proceed
with the construction of pipes, mains, and conduits upon an
ordinance of the Common Council of New Orleans, adopted November
15, 1882, enacted, as he contends, in pursuance of authority
conferred by the Constitution and laws of Louisiana.
The case made by the bill, the allegations of which are admitted
by the demurrer, is substantially as follows:
By an act of the Legislature of Louisiana approved April 1,
1833, the Commercial Bank of Louisiana was incorporated. It is
stated by counsel to have been at that time the policy of the state
to attach, as a condition of all banking charters, the construction
of some work of public utility. At any rate, it appears that this
bank was invested with authority to purchase and hold property
necessary to carry into complete effect the object of its charter,
which was declared to be "the furnishing of the city with good and
wholesome water;" that it was given "the exclusive privilege," from
and after the date of its charter, of
"supplying the city and inhabitants of New Orleans and its
faubourgs with water from the Mississippi River by means of pipes
and conduits, and for erecting, constructing, or working of any
necessary engine;"
that to that end it could lay and place any number of conduits,
pipes, and aqueducts on or over any of the lands or streets of New
Orleans and its faubourgs; that the city might, within a prescribed
time, subscribe for 5,000 shares of the capital stock of the
company, not subject to deduction, to be paid for by city
Page 115 U. S. 676
bonds, redeemable in forty years and bearing an annual interest
not exceeding five percent, payable half yearly, and might at any
time after the expiration of thirty-five years from the passage of
the act, purchase the waterworks constructed by the bank.
The city made the subscription authorized by the act, issuing
its bonds in payment therefor, and the bank constructed an extended
system of waterworks, which it managed and operated for the full
term of thirty-five years at the end of which period, in 1868, the
city, exercising the privilege reserved by the state, took
possession of and purchased the waterworks at the appraised value
of $2,000,000, paying, for the bank's interest, in city bonds
redeemable in forty years, the sum of $1,393,400. The balance of
the appraised value represented the city's interest by original
subscription and by purchase subsequently from stockholders. Upon
such payment's being made, the bank, as it was bound to do,
transferred to the city an absolute complete title to the
waterworks property and to all the rights, privileges, and
immunities which it possessed.
The city managed and controlled the property for several years,
during which period it became seriously embarrassed in its
finances. That it might be relieved from such embarrassment, the
Legislature of Louisiana in 1877 passed an act entitled
"An act to enable the City of New Orleans to promote the public
health and to afford greater security against fire by the
establishment of a corporation to be called the New Orleans
Waterworks Company, to authorize the said company to issue bonds
for the purpose of extending and improving the said works, and to
furnish the inhabitants of the City of New Orleans an adequate
supply of pure and wholesome water, and to permit holders of the
waterworks bonds to convert them into stock, and provide for the
liquidation of the bonded and floating debt of the City of New
Orleans."
By that act, the New Orleans Waterworks Company was created a
corporation with a capital stock of $2,000,000, to which the Mayor
of New Orleans was directed, as soon after the election of
directors as the city council should determine, to transfer the
waterworks and all the property appurtenant
Page 115 U. S. 677
thereto. The company was required immediately after its
organization to issue to the city stock to the amount of $606,600
as full paid and not subject to assessment, and one additional
share for every $100 of waterworks bonds which the city had
theretofore taken up and extinguished by payment, exchange, or
otherwise, the residue of the stock to be received and surrendered
to the city for the benefit of the holders of waterworks bonds who
might elect to exchange them for stock of the company, and the
bonds so exchanged to be cancelled.
The act provided, among other things, that the waterworks
company shall own and possess the privileges acquired by the city
from the bank; that it shall have, for fifty years from the passage
of this act,
"the exclusive privilege of supplying the City of New Orleans
and its inhabitants with water from the Mississippi or any other
stream or river by mains or conduits, and for erecting and
constructing any necessary works or engines or machines for that
purpose;"
may purchase or lease such lands or lots of ground, and
construct such dykes, mounds, or reservoirs, as may be required for
securing and carrying "a full supply of pure water to said city and
its inhabitants," for which purpose it could lay and place
conduits, pipes, or aqueducts in the streets, public places, and
lands of the city, taking care not to obstruct commerce or free
circulation; that the city might use water from the pipes and plugs
of the company then laid or thereafter to be laid free of any
charge for the extinguishment of fires, cleansing of the streets,
and for the use of all public buildings, public markets, and
charitable institutions; that the company should place, free of any
charge, for public purposes, two hydrants of the most approved
construction in front of each square where a main pipe was laid;
that wherever main pipes are laid, it shall be the duty of the
company to supply water, for all the purposes mentioned at all
times during the continuance of its charter, in consideration
whereof its franchises and property, used in accordance with its
charter, were exempted from taxation, state, municipal, and
parochial; that immediately after its organization, the company
shall proceed to the erection of new works and pipes sufficient
in
Page 115 U. S. 678
capacity to furnish a full and adequate supply of water, to be
drawn from the Mississippi River or elsewhere, as might be judged
most expedient, such new works and pipes to be commenced within
twelve months from the passage of the act, and be completed within
four years, so as to give an adequate supply of water to the people
of New Orleans, exclusive of the Fifth District; that if the work
was not done as prescribed, the company should forfeit all
exclusive privileges granted to it, and the city might contract
with anyone else for a supply of water, and appropriate the
property of the company; that after the completion of the new works
and pipes, the company should, from time to time, as the wants of
the population required and when the estimated revenue on the cost
of such extension should equal ten percent, extend its works
throughout the entire limits of the city and suburbs as then or
thereafter established, and that any failure of the company to
comply with these provisions should work a forfeiture of its
charter. While the act gave the company the right to fix the rate
of charges for water, that right was subject to the condition that
the net profits should not exceed ten percent per annum. At the
expiration of fifty years from the organization of the company, the
city was given the privilege of buying the works, pipes, etc. at a
valuation to be fixed by experts, and if the city did not purchase,
the company's charter should be
ipso facto extended for
fifty years longer, "but without any exclusive privilege or right
to supply water," according to the provisions of the charter.
In addition to authority to increase its capital stock, the
company was empowered to borrow money for the purpose of improving
and enlarging its works and increasing the supply of pure water, to
which end it might issue bonds to an amount not exceeding
$2,000,000, on such terms, and bearing such rate of interest, as
the directors might determine, secured, principal and interest, by
a mortgage of all the property, acquired and to be acquired, and
franchises of the company, including its franchise to be a
corporation, such mortgage to be a valid and subsisting mortgage
until the payment of the debt secured by it, without reinscription,
and the bonds not to be disposed of
Page 115 U. S. 679
except on terms approved by the city council. It was further
provided that the company should not declare or pay any dividends
until the contemplated works were completed and in use, nor at any
time, except in cash, and then only out of the net receipts, after
payment of expenses of operation and interest on its bonded
debt.
The act concluded with the declaration that nothing therein
"shall be so construed as to prevent the city council from
granting to any person or persons, contiguous to the river, the
privilege of laying pipes to the river exclusively for his or their
own use."
This act was amended in 1878, but in no particular important to
be here noticed except that the exemption of the company from state
taxation was abrogated.
The City of New Orleans accepted the provisions and conditions
of the act of 1877 and subscribed the full amount of stock
authorized by law. Holders of bonds also subscribed stock to the
amount of $500,000, and, as required, surrendered their bonds to
the city, which were cancelled, leaving to the latter in place of
their bonds, the stock so subscribed by them. Subsequently, April
9, 1878, the city transferred to the waterworks company, its
successors and assigns, all of the before-mentioned property,
subject to its right to repurchase the same as provided in the
foregoing acts. Thereafter the property was controlled and managed
by the company. In order to meet the obligations imposed by its
charter, it expended large sums of money, raised by the issue of
mortgage bonds, to the amount of $500,000, of which $300,000 were
sold, and which money, or a large portion thereof, was expended in
enlarging and improving the waterworks so as to meet the demand for
water for the use of the city and its inhabitants.
While the company, according to the allegations of the bill, was
executing in good faith the requirements of its charter, a new
state constitution was adopted, commonly known as the Constitution
of 1879. It contained, among other clauses, the following:
"Art. 258. All rights, actions, prosecutions, claims, and
contracts, as well of individuals as of bodies corporate, and all
laws in force at the time of the adoption of this constitution
Page 115 U. S. 680
and not inconsistent therewith, shall continue as if the said
constitution had not been adopted. But the monopoly features in the
charter of any corporation now existing in the state, save such as
may be contained in the charters of railroad companies, are hereby
repealed."
Under the sanction of that constitutional provision, the City
Council of New Orleans passed, on November 15, 1882, an ordinance
which provided
"That Robert E. Rivers, or the lessee of the St. Charles Hotel,
of the City of New Orleans, be allowed the right of way and
privilege to lay a water pipe from the Mississippi River at any
point opposite the head of Common or Gravier Streets, through
either of these streets to said hotel, its front and side streets,
with all needed attachments and appurtenances, and to distribute
said water through said hotel as said Rivers or lessee may desire
from said pipes, the pipes to be put at a depth of three feet under
the surface of said streets, to be of iron, and of not more than __
inches in diameter; that the said pipes and all attachments thereto
in said streets be arranged and placed under the supervision and
approval of the city surveyor, the pavement and streets to be
relaid to the satisfaction of the administrator of improvements and
city surveyor."
The New Orleans Waterworks Company was in existence before the
adoption of the present Constitution of Louisiana, one of the
articles of which, as we have seen, repeals the monopoly features
of all then existing corporations other than railroad companies.
This case is therefore controlled by the decision just rendered in
New Orleans Gaslight Co. v. Louisiana Light Co., ante,
115 U. S. 650. The
two are not to be distinguished upon principle, for if it was
competent for the state, before the adoption of her present
constitution, as we have held it was, to provide for supplying the
City of New Orleans and its people with illuminating gas by means
of pipes, mains, and conduits placed at the cost of a private
corporation in its public ways, it was equally competent for her to
make a valid contract with a private corporation for supplying, by
the same means, pure and wholesome water for like use in the same
city. The right to dig up and use the streets and alleys of New
Orleans for the purpose of placing pipes and mains
Page 115 U. S. 681
to supply the city and its inhabitants with water is a franchise
belonging to the state which she could grant to such persons or
corporations and upon such terms as she deemed best for the public
interest. And as the object to be attained was a public one for
which the state could make provision by legislative enactment, the
grant of the franchise could be accompanied with such exclusive
privileges to the grantee in respect of the subject of the grant as
in the judgment of the legislative department would best promote
the public health and the public comfort or the protection of
public and private property. Such was the nature of the plaintiff's
grant, which, not being at the time prohibited by the constitution
of the state, was a contract, the obligation of which cannot be
impaired by subsequent legislation or by a change in her organic
law. It is as much a contract, within the meaning of the
Constitution of the United States, as a grant to a private
corporation, for a valuable consideration, or in consideration of
public services to be rendered by it, of the exclusive right to
construct and maintain a railroad within certain lines and between
given points or a bridge over a navigable stream within a
prescribed distance above and below a designated point.
It is idle to insist that this contract was prejudicial either
to the public health or to the public safety, as might perhaps be
said to be the case if the state, after making it, was prevented
from exercising any control whatever over the matter of supplying
the city and its inhabitants with water. But notwithstanding the
exclusive privileges granted to the plaintiff, the power remains
with the state, or with the municipal government of New Orleans,
acting under legislative authority, to make such regulations as
will secure to the public the uninterrupted use of the streets as
well as prevent the distribution of water unfit for use, and
provide for such a continuous supply in quantity as protection to
property, public and private, may require. In the case just
decided, we said:
"The constitutional prohibition upon state laws impairing the
obligation of contracts does not restrict the power of the state to
protect the public health, the public morals, or the public safety,
as the one or the other may be involved in the execution of such
contracts.
Page 115 U. S. 682
Rights and privileges arising from contracts with a state are
subject to regulations for the protection of the public health, the
public morals, and the public safety in the same sense as are all
contracts and all property, whether owned by natural persons or
corporations."
The contract with the waterworks company does not interfere
with, but expressly reserves, the riparian rights of anyone
"contiguous to the river." To that class the appellee does not
belong, for his hotel is distant many blocks from the Mississippi
River, and others own and occupy the intervening property. Nor does
the contract assume to interfere with the right of any person or
corporation, even when not contiguous to that stream, to supply
their places of business or residences with water therefrom
obtained otherwise than by pipes, mains, or conduits laid in the
public ways of the city. The restriction imposed by the contract
upon the use by others than plaintiff of the public streets and
ways for such purposes is not one of which the appellee can
complain. He was not thereby restrained of any freedom or liberty
he had before, for he had no right, without the consent of the
government, to dig up the streets and alleys of the city for the
purpose of conveying water to his hotel. Nor can he question the
authority of the state to grant to a private corporation the
exclusive use of public streets and alleys for such purposes as a
means of accomplishing the public object of supplying one of her
municipalities and its inhabitants with pure and wholesome water.
The permission given to the appellee by the city council to lay
pipes in the streets for the purpose of conveying water to his
hotel is plainly in derogation of the state's grant to the
appellant, for if that body can accord such a use of the public
ways to him, it may grant a like use to all other citizens and to
corporations of every kind, thereby materially diminishing, if not
destroying, the value of the plaintiff's contract, upon the faith
of which it has expended large sums of money, and rendered services
to the public which might otherwise have been performed by the
state or the city at the public expense.
Without discussing the authorities referred to in the other
Page 115 U. S. 683
case or repeating the general considerations there stated, and
which are equally applicable here, we are of opinion that the court
below erred in sustaining the demurrer to the bill. Under its
averments, the plaintiff was entitled to a decree perpetually
restraining the defendant from laying pipes, conduits, or mains in
the public ways of New Orleans for the purpose of conveying water
from the Mississippi River to his hotel. In common with all
corporations and all other citizens of New Orleans, he must abide
by the contract which the state made with the plaintiff, for such
is the mandate of the Constitution of the United States.
The decree is reversed and the cause remanded for further
proceedings in conformity with this opinion.