but defendant's cars are not the only vehicles which raise the dust, and it would scarcely be desirable equality to make it sprinkle all the dust." (Our italics.) As well illustrating the scope of that ordinance, the following extract from our opinion may be cited, viz.: "The question may be propounded: Can they not be made to sprinkle their own tracks, and relieve their own road, as well as the adjacent streets, of the dust raised by their cars? To this the answer immediately suggests itself: The ordinance being indefinite and uncertain, it would serve no purpose to decide in this case the issue raised by the question." The conclusion reached was that the ordinance was both indefinite and unreasonable, and consequently illegal, and that the penalty it provided could not be enforced.

This extended quotation from our opinion was considered necessary for the purposes of showing that the ordinance was considered indefinite and unreasonable principally upon the ground that it should be unlawful for a corporation "to operate any electric, trolley or other cars or trains on the streets of the city without first providing, in some reasonable manner, for the sprinkling of the streets through which their cars run"; that is to say, from curb to curb. That provision required street-car companies to provide "in some reasonable manner for the sprinkling of the streets through which their cars run," notwithstanding they were at the same time used and employed for the general uses and traffic of the city. Simply because they exercised a franchise upon certain streets of the city, the ordinance singled out these corporations, and imposed upon them, solely and alone, the bearing of a public burden which should have been discharged by the city, or shared by the general public. Besides that, the terms of the ordinance, which required of street-car companies that they should provide "in some reasonable manner for the sprinkling of the streets," were most indefinite and indefinable as to time, manner, amount, and extent. The ordinance under present consideration is free of many of those complications, and it was doubtless the intention of the city council that it should be entirely disembarrassed by them. Recurring to its phraseology, we find "that each and every company or corporation operating street-car lines within the limits of the city of New Orleans shall water their tracks"; but not only so, but to water them "so as to effectually keep the dust on same laid." It is obvious that the duty imposed is specific; that is, "to water their tracks." It does not require them to "sprinkle the streets," nor to sprinkle their tracks; but to "water" them. Water them where, and to what extent? "So as to effectually keep the dust laid on same." To water that part of the streets which is occupied and used by their tracks, and immediately covered by their franchises, is an altogether different thing from sprink

ling the streets from curb to curb, and to a very great extent, at least, relieves the ordinance of the onerous and oppressive feature that was properly attributed to the former ordinance, the imposition upon private individuals and corporations of a public burden. We are thus brought to the discussion of the sole remaining question in this case, and that is whether or not this ordinance evidences and authorizes a proper and legitimate exercise of the police power; for it must be admitted (and it is a question which is free from doubt) that, if it trenches in any particular upon the defendant's contract rights, it is inimical to the contract clause of the federal constitution. Among the powers which are expressly conferred upon the city council are the following, viz.: "That the council shall have power, and it shall be their duty to pass such ordinances, and see to their faithful execution as may be necessary and proper; to regulate *

all places of business likely to be or become detrimental to health; and to adopt such ordinances and regulations as shall be necessary or expedient for the protection of health and to prevent the spread of disease; and to maintain a good sanitary condition in the streets, public places and buildings," etc. Acts 1896, No. 45, § 14 (the city charter). It specially provides that it is the duty of the city council to preserve the good order of the city, and "to maintain its cleanliness and health." Id. They are specially required "to suppress all nuisances." Id. That "the council shall have the power to authorize the use of the streets for railroads operated by horse, electric, steam, or other motive power, and to regulate the same," etc. Id. § 15, par. 13. The evident purpose and object of these and other provisions of the city charter were, in express terms, to subordinate the uses and franchises the city should have granted to street-railroad companies to its right to regulate the same, and keep them subject to its police dominion and control; for it cannot be reasonably contended that, because a corporation or private person has acquired the franchise of operating lines of electric cars in the streets of the city, such franchise carries with it the right to so use and operate their cars as to become detrimental to the public health of the city, and hence a public nuisance, and that the city council has not the power to regulate the same by means of reasonable and appropriate ordinances. It is the right of use, and not of abuse, that the franchise confers. It is evident that the city cannot barter away her police powers; nor can she by her contracts estop herself from exercising the power of suppressing nuisances or preserving the public health and the comfort and cleanliness of the inhabitants of the city. It is equally evident that an ordinance which requires that a public business should be so conducted, or a public franchise so operated, as not to be detrimental to the public health or the clean

liness and comfort of the people of a city, does not deprive the owner of such a franchise of its property without due process of law or adequate compensation. That in the latitude in which the city of New Orleans is located, and in its physical situation, of which this court will take judicial cognizance, the operation of electric cars during a protracted summer season, where thousands of persons-particularly ladies and children-are constantly traveling in them, will produce a sufficient quantity of dust, in their operation, to constitute a nuisance to passengers, and become detrimental to public health, needs no demonstration. Of course, it is idle for the council to attempt to coerce those corporations to so operate their cars as to create no dust. That would be a physical impossibility. Hence the city council has attempted to do the only thing which, in our opinion, it was possible for them to have done; that is, to pass an ordinance requiring them "to water their tracks so as to effectually keep the dust laid on same."

Following the rule which we have constantly adhered to in this class of cases, we have looked into the evidence for the purpose of ascertaining whether the dust is produced by the defendant's cars, or sensibly contributed thereto by them upon their tracks; for upon such evidence must depend the right of the city council to attempt to regulate the defendant's use of its franchise so as to preserve the health, comfort, and cleanliness of the people using its cars. In the first place, the record contains an agreement to the effect "that all the testimony and evidence offered on the part of the New Orleans City & Lake Railroad Company and the city of New Orleans in the original suit, No. 15,559,"-the case from which we have made extracts supra,-be considered and received as offered "in the instant case, without being copied into this transcript," etc. The testimony of one of the defendant's witnesses in this case, as shown by the following interrogation, fairly illustrates the situation: "Q. How is the dust brought upon the car track? A. The dust is brought -or, rather, the wind is brought-on the car tracks by vehicles coming from unpaved streets, principally. There are also large quantities of manure, etc., dropped on the streets. Q. None of which is dropped by the electric cars? A. No, sir. Q. After a rain, and the streets become muddy, and the vehicles, as you say, by the mud being attached to their wheels, carry it and deposit it on the tracks, what becomes of it? A. The mud is dried first, of course, and the vehicles grind that mud into dust. Q. The vehicles grind the mud into dust? A. Yes, sir; other vehicles. Q. Vehicles alone? A. Vehicles and animals. Q. In what respect do the cars contribute towards grinding this mud into dust? A. To a very small extent,-only on the surface of the rails. Q. Is that appreciable? A. Well, it is only a matter of opinion. I don't think it does amount to anything. Q. After

this mud is dry, and becomes ground into dust by vehicles, and by the tramping of horses and mules, what becomes of it? A. Well, it stays on the street. To a very large extent, the cars have a tendency to brush it off the tracks." (Our italics.) The witness thus described the situation after the cars have been operated on the streets for several days, and the drying process of fair weather has had its effect upon the mud which has been thus brought upon the railroad tracks: "Well, on a paved street there is a section between the rails-between the rails and the gutter-which is comparatively clean. The dirtiest portion of the street is nearest the rails, inside and out; principally out, where the dirt is dropped from the wheels of the vehicles." Again: "Q. With the exception of the few narrow streets to which you have referred, I understand you to say that the effect of a car passing over the roadbed after the mud has been ground and dried is to sweep, by its passage, the dust away from the car track. A. The effect is to clean the track." Obviously, the trend of this statement, and of other witnesses to the same effect, is to establish the fact that the cars of the street electric railway companies are an important factor in raising the dust which is complained of as a nuisance and a discomfort. This proof is consonant with common knowledge and experience on the subject. That the movement of the electric cars produces a great deal of dust is substantiated by the witnesses who testified in suit 12,559, to which we have referred. The following interrogation of a witness in that case will illustrate that proposition, viz.: "Q. Have you ever seen a street car run through the Third district? A. I think I have. Q. Well, have you? I say. A. Yes, sir; I have, certainly. Q. What line? A. Dauphine line; Dauphine and Barracks. Q. What effect did the passage of these cars have upon the dust of the streets? A. It has a great deal of effect. Q. Please state what the effect is. A. It creates a great deal of dust. Q. Is that dust uncomfortable? A. Very much, sir. Q. Do they create any more than any other vehicles passing in the street? A. Yes, sir." He says "there is a greater quantity of dust where the cars are running, and you can follow up behind every car in my street, and see rafters of dust after every car." Another witness says that through the streets that are ordinarily traversed by these cars "more dust is raised by them than by any other vehicle that I have seen traveling on the streets." This witness was a practicing physician in the city of New Orleans of 13 years' experience. "Q. What is the effect of these clouds of dust on the health of the inhabitants of those streets and the passengers in the cars? A. [Substantially that] inhaling of dust raised by those cars is irritating to the organs of respiration," etc. This witness confirms the statement of the former witness with regard to the greater volume of dust which is produced by the electric cars than any other vehicles which use

the streets of the city. The following is quoted from the interrogation of the president of the state board of health, viz.: "Q. Your board of health has requested the authorities to enforce this ordinance which the accused is charged with violating? A. No, sir; we attempted to enforce it ourselves, believing that we were capable of enforcing all ordinances connected with sanitation. Q. Now, you have noticed these cars going through the streets,-these electric cars? A. Yes, sir. Q. Do they create any dust,-more than any other vehicle? A. I think they are the cause of the dust arising. Q. Now, in the operation of those cars without sprinkling the streets, does that constitute a nuisance? A. I think it has an injurious effect upon the health. Q. Has the board of health ever declared this operation of the cars without sprinkling the streets a nuisance? A. I could not say that the specific action of the board stated that it was a nuisance, but the board did by specific action determine to enforce the law as a sanitary measure. Q. Now, when you say 'as a sanitary measure,' is the operation of the cars without sprinkling injurious to the health of the inhabitants? A. Well, the dust we conceive to be injurious. Q. It is? A. Yes, sir. Q. And is it more injurious, or is more injury caused by the dust from the street cars than from the dust from any other vehicle? A. By reason of the greater amount of dust." Again: "Q. Doctor, you have ridden around the city in street cars during dusty weather? A. Yes, sir. Q. Have you ever been inconvenienced by the dust in those cars? A. Yes, sir; frequently." Another witness, a member of the board of health, and a physician of 30 years' experience, said: "Q. You have often traveled in street cars of New Orleans City & Lake Railroad Company? A. Yes, sir; very often, all over the city. Q. Do they create any dust? A. Yes, sir; they do. Q. Do they create any more dust than any other vehicle passing through those streets? A. I think so; by reason of the velocity of the car, which gives a kind of draught or vacuum, which causes large volumes of dust to surround the car."

So much of the evidence is sufficient for all the necessary purposes of this case, and, whether same be put to the practical test of the judgment of the layman and casual observer, or that of scientific analysis and sanitation, we think it reasonably clear that the operation of the street electric cars is the principal cause of the dust which is complained of, and that it is shown to be a nuisance, injurious to the public health, and that of persons who use them for purposes of travel, and detrimental to the comfort and convenience of the public. We regard the foregoing evidence as a complete answer to the following proposition, which we have extracted from the brief of defendant's counsel, viz.: "The defendant further shows that the need to keep the dust laid on the lines of track, if any such need there be, was a ne

cessity that arose in the course of nature, and is not a state or condition brought about by the operation of the said street-car lines; and that it is unlawful and unreasonable to impose upon corporations operating said lines the duty to keep the dust laid when the said duty has no relation to the operation of the said street-car lines, and arises from no condition created or brought about by the operation of said lines, and when said service is not required by the contract with the city, and the duty of service is outside and beyond the contract, and a duty which is owed by the municipal authorities to the inhabitants." Again: "The Canal & Claiborne Railroad Company, the licensee of the city of New Orleans, has purchased and paid for the right to use certain streets for the carrying of passengers. It pays a license tax, as well as property tax, and is performing a quasi public function, carrying passengers for hire in the streets. The fact that it is quasi public, and has purchased and paid for this right to use the streets, does not destroy the character of its business, or make it subject to other and different rules of law than any other citizen who uses the street for profit. It would be unreasonable to require the dray owner to attach a sprinkling apparatus to his dray, or to require his dray to be followed by a water cart; and it would be unreasonable to require the omnibus lines to run sprinkling carts. It would be unreasonable to require of the procession of furniture vans, sugar wagons, cotton floats, and pleasure vehicles to be equipped with sprinkling apparatus, or to be preceded or followed by water carts, simply because they use the streets of the city. And so we say that there is no reason to require the street-car companies to perform this service, at great expense, when the service is not required of other persons or firms or corporations making a like use of such public highways. And when it is seen that the dust is not produced by the railway company,-is not brought upon the street by them,-but its appearance and the annoyance of the dust is not related to the operation of the railroad lines, to require them to lay' the dust would be no more reasonable than to require them to remove the garbage, sweep the streets, clean the gutters, or light and pave the streets, or maintain the police along their route." The examples counsel gives of the right which the proprietor of a dray, the water cart, the omnibus, furniture van, sugar wagon, cotton float, and pleasure vehicle has to the free use of the street for the purposes of his business are inappropriate, because neither exercises a franchise on the public streets of the city, but their use of the streets is just the same as that of any other private citizen. While each of said proprietors is licensed by the city to pursue his respective calling, his use of the streets is merely incidental thereto.. But the street-car company purchases from the city a public franchise or right to lay its

tracks of steel fixedly and permanently in the center of the public highways of the city, and to maintain same therein for a period of years, and to operate their cars thereon for the purpose of carrying passengers for hire. And it is disclosed by the evidence that the dust which occasions the inconvenience and discomfort of the passengers and the detriment to public health is directly and immediately referable to its use of that franchise; and it is that injurious use and enjoyment of its franchise which the aforesaid ordinance is intended to regulate.

The question arises, upon the foregoing state of facts, whether the watering of the tracks of the street-railroad companies so as to effectually keep down the dust, as proposed in the ordinance, is an exercise of the police power. If so, is it reasonable, definite, and equal and just in its operation? The ordinance is merely a municipal regulation, and in no sense a criminal statute. Corporation of Amite City v. Holly, 50 La. Ann. 483, 23 South. 746. The persons with whom it exclusively deals are public corporations, who are operating public franchises to be operated as carriers of passengers for hire; and the evident object of the city counsel in enacting it was to improve the comfort and convenience of the passengers who were transported upon it, and incidentally to suppress a quasi nuisance, and preserve the public health.

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It is further argued by defendant's counsel that the large expense of watering their tracks will render this ordinance so burdensome as to seriously impair its franchise, and render its revenues nonremunerative. this proposition there are two sufficient answers: (1) That this exigency of defendant's franchise must be reasonably supposed to have been within the contemplation of the contracting parties when the franchise was secured, and, consequently, an incident thereof; (2) that the greatly increased convenience and comfort of travel which the suppression of the dust would occasion would entirely compensate the increased cost by a corresponding increase of travel. The principles of law appertaining to the exercise of the police power of a state or municipal government have been so frequently enunciated by the courts of this state, as well as by those of other states and of the supreme court, that the chief difficulty presented to the judicial mind consists in the selection to be made therefrom of those most suitable to the question under discussion, It will therefore be useful to jurisprudence to quote from some of the most conspicuous decisions, and apply their precepts to the instant case. In Chaffe v. Trezevant, 38 La. Ann. 746, this court said: "What the police power of a state is, it is difficult to determine with precision. It is generally said to extend to the protection of the lives, health, and property of the citizen, and the preservation of good order and good morals; to the promotion of domestic tran

quillity, and the comfort and quiet of all persons. By the general police power of a state, persons and property are subject to all kinds of burdens and restraints in order to secure the general comfort, health, and prosperity of the people." In Bass v. State, 34 La. Ann. 494, it was well said that "it is a settled principle, growing out of well-ordered society. that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their own property, nor injurious to the rights of the community." That opinion was very largely predicated upon the leading case of Com. v. Alger, 7 Cush. 53, which is cited in the brief of defendant's counsel. In the conspicuous case of Stone v. Mississippi, 101 U. S. 814, the supreme court said: "All agree that the legislature cannot bargain away the police power of a state.

Many attempts have been made in this court to define the police power, but never with entire success. It is always easier to determine whether a particular case comes within the general scope of the power than to give an abstract definition of the power itself which will be in all respects accurate. No one denies, however, that it extends to all matters affecting the public health or the public morals." See, also, Beer Co. v. Massachusetts, 97 U. S. 25; Patterson v. Kentucky, Id. 501; Boyd v. Alabama, 94 U. S. 645; Fertilizing Co. v. Hyde Park, 97 U. S. 659; Munn v. Illinois, 94 U. S. 124; Board v. Barrie, 34 N. Y. 657. The court then added this strong statement, viz.: "No legislature can bargain away the public health or the public morals. The people themselves cannot do it; much less their servants. The supervision of both these subjects of governmental power is continuing in its nature, and they are to be dealt with as the special exigencies of the moment may require. Government is organized with a view to their preservation, and cannot devest itself of the power to provide for them. For this purpose the largest legislative discretion is allowed, and the discretion cannot be parted with any more than the power itself." In Dartmouth College v. Woodward, 4 Wheat. 518, Chief Justice Marshall employed this forcible language, viz.: "The people, in their sovereign capacity, have established their agencies for the preservation of the public health and the public morals, and the protection of public and private rights. These several agencies can govern according to their discretion, if within the scope of their general authority, while in power; but they cannot give away nor sell the discretion of those that are to come after them in respect to matters the government of which, from the very nature of things, must vary with varying circumstances. They may create corporations, and give them, so to speak, a limited citizenship; but as citizens, limited in their privileges or otherwise, these crea.