1. Under the Louisiana Constitution of 1921, Art. XIV, 22, the
general control of its own streets is an ordinary governmental
function of the City of New Orleans. P.
264 U. S. 399.
2. The Louisiana Constitution of 1921 did not invest the state
Public Service Commission with such control over streets within
Page 264 U. S. 394
New Orleans that it may compel a railroad company to repair and
keep up a street viaduct constructed over its tracks by the city
under a contract which granted that right to the city without
expropriation or compensation upon the express condition that the
city should pay the cost of the erection and subsequent maintenance
of the viaduct. P.
264 U. S. 399.
287 F. 390, affirmed.
Appeal from a decree of the district court enjoining the
appellants from enforcing an order requiring the appellee railroad
company (plaintiff below) to repair a viaduct over its tracks.
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
March 29, 1923, the appellant Commission issued an order which
directed:
"That, within 15 days from the date of this order, the Morgan's
Louisiana & Texas Railroad & Steamship Company shall
commence to repair and put in a safe and suitable condition for
vehicular and other traffic, such repairs to be completed within a
reasonable time thereafter, the existing viaduct over, above, and
across the properties of the said Morgan's Louisiana & Texas
Railroad & Steamship Company in the Fifth Municipal
Page 264 U. S. 395
District of the City of New Orleans, known as Algiers, within
the limits of the said property, which connects the two ends of
Newton Street, and thereafter to maintain the same in a safe and
suitable condition. This order shall become effective at once."
By an original bill filed in the court below, appellee
challenged the validity of the order because beyond the power of
the Commission, and, if within such power, enforcement would
deprive the company of property without due process of law and
impair the obligation of its contract with the city of New Orleans,
contrary to the federal Constitution. The allegations are
sufficient to bring the controversy within the court's jurisdiction
and empowered it to determine questions of both state and federal
law.
Greene v. Louisville & Interurban Railroad Co.,
244 U. S. 499,
244 U. S. 508.
A special court of three judges, Judicial Code § 266, heard the
issues, held the Commission lacked power to make the order, and
directed an interlocutory injunction.
See 287 F. 390. The
cause is here by direct appeal.
In 1878, the appellee railroad company acquired title to certain
land now in New Orleans, fronting 375 feet on the Mississippi River
and extending back 4,000 feet, and, for 40 years, has held it under
fence. Twenty tracks laid thereon are in constant use. During 1904,
the city offered to sell the right to operate a street railway over
this property, subject to part payment of the cost of constructing
and the entire cost of maintaining the essential viaduct, which the
city agreed to provide. This franchise was duly adjudicated, and,
in 1905, appellee, by definite contract, granted to the city the
right to construct the present viaduct over its property at Newton
Street upon the express condition that the grantee should pay for
both erection and subsequent maintenance. Under this contract, and
not otherwise, without expropriation of the right of way by the
public or compensation to the landowner,
Page 264 U. S. 396
the structure was erected. It is 2,000 feet long, and extends
several hundred feet on either side of appellee's land. For many
years, the street railway operated over its entire length. Finally,
the portion over appellee's tracks fell into disrepair, and both
city and street railway company failed to restore it. Finding this
situation, appellant issued the order copied above.
Article VI, Louisiana Constitution of 1921, provides:
"Section 4. The Commission shall have and exercise all necessary
power and authority to supervise, govern, regulate, and control all
common carrier railroads, street railroads . . . and other public
utilities in the State of Louisiana, and to fix reasonable and just
single and joint line rates, fares, tolls, or charges for the
commodities furnished or services rendered by such common carriers
or public utilities, except as herein otherwise provided. The
power, authority, and duties of the Commission shall affect and
include all matters and things connected with, concerning, and
growing out of the service to be given or rendered by the common
carriers and public utilities hereby, or which may hereafter be
made subject to supervision, regulation and control by the
Commission. . . ."
"Section 9. Until otherwise provided by the legislature, all
laws enacted by the General Assembly of the State of Louisiana
since the adoption of the Constitution of 1898, and in effect at
the time of the adoption of this Constitution, affecting,
concerning, or relating to the Railroad Commission of Louisiana,
not inconsistent with any of the provisions hereof, shall be
construed as referring and applying to the Louisiana Public Service
Commission, and nothing in this Constitution shall be construed as
in any manner impairing or affecting such laws."
The Commission claims that the power which it undertook to
exercise is conferred by these sections, and that the supreme court
of the state so held in
Gulf, C. & S.F.
Page 264 U. S. 397
Ry. v. Louisiana Public Service Commission, 151 La.
635.
The court below entertained another view of the constitutional
grant and of the opinion relied upon. We think the conclusion which
it reached is correct, and its decree must be affirmed.
Article 284, Louisiana Constitutions of 1898 and 1913:
"The power and authority is hereby vested in the Commission
[Railroad, Express, Telephone, Telegraph, Steamboat and other Water
Craft, and Sleeping Car Commission, created by Article 283], and it
is hereby made its duty, to adopt, change, or make reasonable and
just rates, charges, and regulations to govern and regulate
railroad, steamboat, and other watercraft, and sleeping car,
freight, and passenger tariffs and service, express rates, and
telephone and telegraph charges, to correct abuses, and prevent
unjust discrimination and extortion in the rates for the same, on
the different railroads, steamboat, and other watercraft, sleeping
car, express, telephone and telegraph lines of this state, and to
prevent such companies from charging any greater compensation in
the aggregate for the like kind of property or passengers, or
messages, for a shorter than a longer distance over the same line,
unless authorized by the Commission to do so in special cases; to
require all railroads to build and maintain suitable depots,
switches and appurtenances wherever the same are reasonably
necessary at stations, and to inspect railroads and to require them
to keep their tracks and bridges in a safe condition, and to fix
and adjust rates between branch or short lines and the great trunk
lines with which they connect, and to enforce the same by having
the penalties hereby prescribed inflicted through the proper courts
having jurisdiction. . . ."
By Act 132 of 1918, the General Assembly of Louisiana
directed:
"That the powers and duties of the Railroad
Page 264 U. S. 398
Commission of Louisiana are hereby added to and enlarged, and
the power and authority is hereby vested in the said Commission,
and it is hereby made its duty to require the owner, possessor, or
operator of any railway, railroad, tram road, log road,
transportation, irrigation or drainage canal, or syphon, crossing
any public road already constructed or which may hereafter be
constructed, to construct and maintain a suitable and convenient
crossing over such public road, the said crossing to extend to the
limits of the right of way, or fifty feet from the center of such
railway, railroad, tram road, log road, transportation, irrigation
or drainage canal or syphon in accordance with the standard
specifications furnished by the State Highway Department of the
Board of State Engineers in respect to such crossings."
The act further empowered the Railroad Commission to require
such crossings upon proper certificates of the police juries in the
respective parishes.
The broad language of § 284, Constitutions of 1898 and 1913, was
not regarded as sufficient to empower the Railroad Commission to
require carriers to construct public crossings over their lines. To
meet this situation and provide relief in the parishes, the Act of
1918 was passed, and it was an order issued under this act which
the Supreme Court sustained in
Gulf, C. & S.F. Ry. v.
Louisiana Public Service Commission.
Article XIV, § 22, Louisiana Constitution of 1921:
"The electors of the City of New Orleans and of any political
corporation which may be established within the territory now, or
which may hereafter be embraced within the corporate limits of said
city, shall have the right to choose their public officers. This
section shall not prohibit . . . , nor shall it be construed as
restricting, the police power of the state, or as prohibiting the
legislature from appointing or authorizing the appointment of, any
board or Commission with full authority
Page 264 U. S. 399
in the City of New Orleans other than that of controlling the
ordinary governmental functions of municipal government."
Unless and until otherwise advised by the Supreme Court of
Louisiana, we must conclude that the general control of its own
streets is an ordinary governmental function of the City of New
Orleans.
It would require more definite language than we find in the
Constitution of 1921, or in
Gulf, C. & S. F. Ry. v. Public
Service Commission, to convince us that the Commission has
power to assume control over all those streets within New Orleans
which approach or cross railroad tracks, and to disregard the
solemn contracts of the municipality with respect thereto. That the
liability which the Commission has undertaken to impose upon
appellee conflicts with the contract under which the latter granted
permission to construct the viaduct over its property is not
denied. Only very clear and definite words would suffice to show
that the state had undertaken to authorize a thing so manifestly
unjust and oppressive.
Affirmed.