v. Upon the defendants' own averment, that they had power to lay out the road WALLING complained of, they do not come within the exception. We are of opinion that MAYOR, &C. OF there is no error in the judgment. It is therefore affirmed, with costs. SHREVEPORT. POLICE JURY OF BOSSIER v. CORPORATION OF SHReveport. The act of 20th of March, 1839, incorporating the town of Shreveport and giving the municipal authorities exclusive right to establish ferries across Red River, did not create a contract or vested rights in that corporation which the Legislature could not constitutionally change or annul. The act of 16th of March, 1848, entitling the Police Jury of the parish of Bossier, to a parti cipation in the management of the ferry established by the town of Shreveport across Red River, and to share in the revenues thereof, is not unconstitutional. The prohibitions contained in art. 109 of the Constitution of Louisiana, and in art. 1, sec. 10 of the Constitution of the United States, apply only to contracts or vested rights of individuals or private corporations, and not to municipal corporations established for public purposes, which are entirely subject to the Legislative will, except so far as the rights of third persons may be affected thereby. Where the prayer does not ask for the amount claimed to be due in the petition, the court may, under the prayer for general relief, give judgment for the sum really due. PPEAL from the District Court of Caddo, Olcott, J. Lawson and Fort, Afor plaintiffs, contended: This was an action brought by the plaintiffs against the defendants to compel the defendants, by mandamus, to meet with the plaintiffs to fix the rates of toll to be charged at the ferry across Red River, within the limits of the town of Shreveport, and to recover of them the one-half of the revenues arising from the lease of said ferry, from the passage of an act of the Legislature of the State of Louisiana, approved March 16, 1848, by which onehalf of the revenues of said ferry was vested in the parish of Bossier, and the right granted to the Police Jury to meet with the Mayor and Trustees of Shreveport to fix the rates of ferriage. See acts of 1848, p. 156, secs. 2 to 5. There was judgment below in favor of plaintiffs for $1875, and that the mandamus be made peremptory; from which the defendants have appealed. The facts of the case are briefly these: In 1839, the Legislature passed an act creating the corporation called the Mayor and Trustees of the town of Shreveport, to extend ovor 640 acres of land lying on the south western bank of Red River, in the parish of Caddo, and known as the "Larkin Edwards Reserve," by which, with other political powers, it granted to the mayor and trustees of said corporation the exclusive right to establish ferries across Red River, within the limits of said corporation. Acts 1839, p. 200. The revenues arising from such ferries were to be applied to the improvement of the town. Acts 1839, p. 204. Red River is the boundary between the parishes of Bossier and Caddo. Acts 1828, p. 70, and Acts 1838, p. 11. The corporation of Shreveport established a ferry across Red River in 1839, and continued to use and lease it out. In 1843, the parish of Bossier was created, and the police jury of that parish, believing that the Legislature did not intend to divest them of the power to establish ferries across Red River, established a ferry across Red River and leased it out to John Craig, who commenced running a ferry boat across said river, when he was enjoined by James S. Douglass, who had leased the ferry from the Shreveport corporation. The case was tried in this court, and decided that the exclusive power to establish ferries across Red River, within the limits of Shreveport, was vested in the corporation of Shreveport. Douglass v. Craig, 2d Ann. 919. The Legislature, in 1848, passed an act granting to the parish of Bossier the right to have and recover of the corporation of Shreveport, one half of the net proceeds of the ferries across Red River, within the limits of the town of Shreveport, and the power and right to meet with the Mayor and Trustees 5 661 49 560 5 661 112 175 5 661 116 677 POLICE JURY of Shreveport once in each year, and fix the rates of tolls to be charged at said OF ferry. Acts 1848, p. 156, sections 2 to 5. The ferry across the river is BOSSIER. some two hundred yards above any of the streets of said town that have been CORPORATION Worked upon or improved. The defendants resist the demand of the plaintiffs, OF upon the ground that the act of 1848, which conferred the power on the Police SHREVEPORT. Jury of Bossier to meet with the Mayor and Trustrees of Shreveport, and to fix V. the rates of tolls to be charged at said ferry, and the right to receive one-half of the revenues arising from the same was unconstitutional and void; because it impaired the obligation of a contract, and because it divested rights already vested without just compensation first paid. There is no doubt that the act of 1848, if it impaired the obligation of any contract within the meaning of the Constitution of the United States or of this State, is void; or if it takes away any vested right except for public use, a just and adequate compensation having been paid, it is also void. Then, the first question necessary for us to examine is, what is a contract. within the meaning of the Constitution? We have only to refer to the decisions of the Supreme Court of the United States upon that subject to determine. The court defines a contract, as mentioned in the Constitution, to be a compact or agreement entered into between two or more persons. Contracts are divided into executory and executed contracts; yet in both kinds of contracts it requires that there should be an agreement or compact entered into between two or more persons. Story's Com. on Const. vol. 3, p. 241, and cases there cited. Now who were the persons with whom any contract was made in passing the act creating the corporation of Shreveport? There are no individuals named in the act; there is no one mentioned in said act with whom a contract could be made, and from the law itself, it shows that it was an act of ordinary legislation creating a political corporation, to aid the State in governing a particular portion or section of country. We see, under the act, there is a certain set of officers to be elected, their duties and powers defined. There is no individual named to whom any grant or power is made in the act; but it is a right or power given to the citizens of that portion of country to meet and elect certain officers, and their powers and duties defined. We see that the whole power that the Police Jury of the parish of Caddo formerly exercised and possessed over that country is taken away from them and vested in this corporation. The power to establish ferries across Red River within the limits of the corporation is granted to it, and the power or right to apply the revenues to the improvement of the town. The right to the revenues of the ferries is limited by the act, because it directs how they shall be applied. While the right in the police juries of the different parishes to the revenues of the ferries is not limited, but they have the revenues to appropriate as they may think fit. The power to establish a ferry and fix rates of tolls is a political power, and the right to apply the revenues arising from such ferries is an incident to that power, and when the law directs that the revenues must be applied to the improvement of the town, it is appropriating the revenues to a public purpose. It is the duty of that department of government having the police of roads or other highways, to keep them in good order. It is as much the duty of the mayor and trustees to pass proper ordinances to keep the streets and highways in the corporation of Shreveport in good order, as it is the duty of the police jury of the parishes to keep the roads up. But suppose, for argument sake, that the grant of the power to the corporation of Shreveport carried with it a grant of the revenues of the ferries, and that it was a property in each citizen of the corporation of Shreveport, by diminishing his taxes, that he would have to pay for keeping the streets and highways in good order, and that it could not be taken by an act of the Legislature, what would be the condition of the defendants' right to the ferry and the revenues? By the general laws, the right to establish ferries and farm or lease them out annually, belonged to the different parishes. See Bullard & Curry's Dig.. Where a navigable stream divides two parishes, either has a right to establish a ferry across it. Then, this ferry right that the defendants contend for was vested in the parish of Natchitoches first; then by the act by which the parish of Claiborne was created a joint right with the parish of Natchitoches was given to her to establish ferries at the place in controversy; then by the act creating the parish of Caddo, the right which Natchitoches had was transferred to Caddo; and by the act creating the parish of Bossier, the right which the parish of Claiborne had OF BOSSIER v. was transferred to her; and the law under which the defendants set up title, POLICE JURY would be unconstitutional and void. But, then, it might be contended, that if these rights were property rights and vested rights, they would have remained the property of Natchitoches: but not so. She and the other parishes volun- CORPORATION tarily gave them up by consenting to the formation of the new parishes, and consenting them to have such powers and rights granted. In all cases of municipal corporations, the Legislature has power to alter, change, abolish or modify them at will, and it is only in cases where there is a contract with some individual, either executory or executed, the obligation of which will be impaired, that the constitutional provisions are intended to apply. Dartmouth College v. Woodward, 4 Wheat. 518. Reynolds et al. v. Baldwin, 1st Ann. 162. 3d Ann. 294. Charles River Bridge v. Warren Bridge, 11 Peters. But independant of that, in all cases of doubt as to the constitutionality of a law, the law should be entitled to the benefit of the doubt. Courts should never declare laws to be unconstitutional unless they are clearly so. Crain, for defendants, contended: By act of 1838, incorporating the town of Shreveport, § 6, the Legislature gave to the mayor and trustees, the exclusive right to establish such ferries across Red River, within the limits of said town, as they might deem expedient, and to apply the revenues arising therefrom to the improvement of the same. The mayor and trustees accepted, and constantly exercised this right, and resisted all and every interference with their exclusive right. 2d Ann. 919. By act of 1848, § 2, 3, 4, 5, the Legislature gave to the parish of Bossier the right to demand and receive one-half of the net proceeds of the revenues arising from the ferry. This suit is brought to recover the rents; and the defendants resist. on the ground that the act of 1848 is unconstitutional, as violating § 1, ¶ 10 of the Constitution of the United States, and the 109th art. of the Constitution of Louisiana. There was judgment for the plaintiffs, and defendants appealed. The court below considered this question settled by our code and the decisions of the Supreme Court, and cited the cases of Reynolds et al. v. Baldwin, 1st Ann. 162, and Louisiana State Bank v. Orleans Navigation Company, 3d Ann. 294. Neither of these cases apply to the case in point, but present very different issues. And there is no case in our reports, nor article in our code, which does decide it. The defendants contend: 1. That a ferry is a property which can be acquired and held, both by an individual and a municipal corporation. C. C. arts. 419, 420, 423, 424, 438. 2d Ann. 919. 2. The grant, in the act of 1839, gave the town the exclusive property in the ferry; which title was perfected by use, and by expending the revenues on the streets, and the Legislature lost all power over it. 3. The act of 1848, giving to the parish of Bossier one-half of the revenues, is unconstitutional: 1st, because it impairs the obligation of contracts; 2d, because it diverts vested rights without adequate remuneration previously made. 1. What is a franchise, and is a ferry a property? 2 Black. 37. Did not the act of 1839 empower the town to hold the ferry as a franchise? 3 C. R. 295. 2. Can a municipal corporation acquire this as a piece of property; and does their capacity differ from that of individuals? The corporators, it is true, are mandatories, and the mandate may be altered, amended, or even annulled at the will of the Legislature; but in so doing, can they take away or impair a right of property? Could they give our market-house to the parish of Bossier, because they have the right to alter or destroy our charter? Can they take away the ferry without previous remuneration assessed and paid? Who is to refund the taxes already spent. C. C. 438. Const. § 109. Can they make us the ferrymen of Bossier and give the revenues of our ferry-boat to that parish, even if they could impair or take away our right of ferry? The grant of the ferry, by the act of 1839, was a contract. Onerous conditions were annexed to the grant and complied with. Not only the corporation, but the tax payers and purchasers of lots have a right to insist upon the obligations of this contract. 14 L. R. 395. 16 L. R. 585. A grant is a contract, and cannot be impaired. 2 Conn. Rep. 457, 308. 4 Conn. Rep. 526. 11 Pet. Rep. 420. A bank charter is a contract-4 Pet. Rep. 514. 3 Conn. Rep. 295. 5 Conn. Rep. 489-and must be protected. In an ordinary contract, new conditions imposed are unconstitutional. 4 L. R. 94. 8 Wheat. 1. 6 N. S. 585. An act of the Legislature granting anything, relinquishes the rights of the State. 16 Pet. Rep. 21. OF SHREVEPORT. POLICE JURY OF BOSSIER State cases. 1 United States Dig. 558, § 103, 104. 4 Gil. & John. 5. 7 United States Dig. 99, § 50. 1 United States Dig. 484, § 49; 24, 25, 26, 27, 28, 29, 30, 31, 42, 43, 45, 48, 56. Pet. Dig. p. CORPORATION p. 558, § 1, 2, 3; p. 564, § 62; p. 611, § 69. v. OF SHREVEPORT. The judgment of the court was pronounced by PRESTON, J. By the 4th section of the act approved the 20th of March, 1839, incorporating the town of Shreveport, the General Assembly declared that the trustees of the corporation should have the exclusive right to establish such ferries across Red River, within the limits of the town, as they may deem expedient, and to apply the revenue arising therefrom to the improvement of the same. In 1843, the parish of Bossier, on the opposite side of the river, was created, and power was given to the parish to establish ferries across the lakes and rivers within the parish. A ferry was established under this authority across Red River, immediately opposite Shreveport. A contest arose between the lessee of the corporation of Shreveport and the lessee of the parish of Bossier, and it was determined by this court in 1847, that the exclusive right of the town of Shreveport to establish ferries within the limits of the town was not repealed by the authority given to the parish of Bossier. Thereupon, the Legislature passed a law approved the 16th March, 1848, which provided in substance, that the Police Jury of the parish of Bossier should be entitled to receive from the Mayor and Trustees of the town of Shreveport the one-half of the net proceeds of any ferries established by them at Shreveport across Red River, and that the Police Jury of the parish of Bossier should have equal and concurrent jurisdiction in regulating the rates of ferriage, and, for this purpose, should meet, if they thought proper, the mayor and trustees once in each year in the town of Shreveport. Under another section of the act, the Police Jury of Bossier have brought this present suit to enforce the provisions of this law and to recover. The defendants resist this demand substantially, on the grounds that the grant to them of the exclusive right to establish ferries within the limits of Shreveport, was not a mere gratuity, but was given under the obligation of improving the streets and landings of the town, to effect which they have expended large sums of money, thereby making the grant a contract by onerous conditions performed, and, by which means they acquired a vested right to the exclusive privilege, which is protected by the 109th article of the Constitution of the State, and by the 10th section of article 2d of the Constitution of the United States. The Legislature, in incorporating the town of Shreveport, gave to the mayor and trustees, the usual powers given to all municipal corporations to improve the town, but did not bind them to make any particular improvements, or to expend any particular amount, leaving the whole to their own judgment, to be governed by what the interest and convenience of the inhabitants might require. In the act no obligation is expressly imposed upon the town of Shreveport to provide ferryboats or to employ the necessary hands to keep ferries. No onerous conditions are imposed, as not to delay passengers, under penalties. The town is not even obliged to cross the passengers at all. No rates of toll are prescribed and greater rates prohibited. If the Legislature had made such a grant to an individual, and he should have exacted exhorbitant tolls, surely a future Legislature might have fixed and reduced them to reasonable rates. The grants of ferries have always been for limited periods, ordinarily five, ten or fifteen years. The Legislature have fixed no term at which the exclusive right of the town of Shreveport to the revenue from the ferries should cease. As there is not in the law OF BOSSIER. itself any restraint upon future Legislatures to limit or even repeal the law POLICE JURY granting the exclusive right, they might undoubtedly do so, unless clearly prohibited by the constitutional provisions invoked by the defendants. The State did grant to the corporation of Shreveport the exclusive right of establishing ferries within the limits of the town, and of applying the revenues (without any consideration, however, inuring to the State,) in aid of the municipal improvements. The sole question which the case presents is, whether the State could afterwards grant to the parish of Bossier, having the jurisdiction over the opposite side of the river, the right to participate in the regulation of the intermediate ferries and to share in the net profits. The judge of the district court has placed the case on the true grounds. The questions as to the violation of contracts or vested rights under the Constitution of the United States, or of the State, does not arise. Those questions grow entirely out of the violation of contracts with, or the vested rights of individuals or private corporations established for individual profit. The corporation of a town is established for public purposes alone, and to administer a part of the sovereign power of the State over a small portion of its territory. It is created by the Legislature and is entirely subject to Legislative will. This court held, in the case of the Louisiana State Bank v. The First Municipality of New Orleans, that the government of cities and towns, like that of the police jury of parishes, formed one of the subdivisions of the internal administration of the State, and was absolutely under the control of the Legislature; and in the case of Reynolds v. Baldwin, that the laws which establish and regulate municipal corporations, are not contracts, but ordinary acts of legislation, and that the powers they confer are nothing more than mandates of the sovereign power, and that those laws may be repealed or altered at the will of the Legislature; except so far as the repeal or charge may affect the rights of third persons acquired under them. We adhere to these opinions. The Legislature, in the exercise of its sovereign power to regulate ferries, gave the revenues accruing from the ferry in controversy in aid of the improvements of the town of Shreveport, but without any consideration inuring to the State, or onerous condition imposed upon the town. It could, therefore, take those revenues, or a portion of them, from the town and appropriate them to other neccessary purposes. It was very equitable to allow the parish on the opposite side of the river to participate in the profits of the ferry, after paying for the boats and hands as a consideration for keeping up the great highway leading to the ferry, and the Legislature have, by the law in controversy, done nothing more than make this equitable regulation. v. CORPORATION OF SHREVEPOrt. But the privilege of establishing ferries and deriving revenue therefrom, was given by a law which the Legislature, in passing, did not deprive themselves by express or implied contract of the power of repealing or altering it at will. If they did so by implication, the argument of plaintiff's counsel would be conclusive, that the exclusive grant to Shreveport would be unconstitutional; for the original grant of the right to establish ferries at the place in question and derive revenues therefrom, belonged to the parish of Natchitoches; then it was given jointly to that parish and Claiborne; then to Claiborne and Caddo; then to Shreveport exclusively; which grant is unconstitutional, and all those preceding it, except the original grant to Natchitoches, if the law in controversy giving a part of the revenues to the parish of Bossier be unconstitutional. |