Co. 166 U. S. 558, 41 L. ed. 1115, 17 Sup. | in pursuance thereof. (3) Because the Ct. Rep. 653.

The defendant, through the instrumentality of its president. is prosecuted upon the charge of having wilfully and unlawfully violated city ordinance No. 13,835, C. S., by failing to water its tracks on Claiborne and Elysian Fields avenues, and other streets of the city which are traversed by its tracks, as required by said ordinance. | On the trial the defendant was found guilty, and sentenced to pay a fine of $25, and in default of payment of the fine he was to suffer imprisonment for a period of twenty days in the parish prison; and from that sentence it prosecutes the present appeal to this court.

In the recorder's court the defendant, through counsel, filed the following demurrer to the legality of the ordinance, viz.: (1) Because the city council was without power or right to enact such an ordinance. (2) Because the provisions of § 1 of same are so indefinite and unreasonable that no person or corporation therein described is able to know what is commanded to be done'

tions for consideration are (1) whether the ordinance is unreasonable; and (2) whether it was an attempt to place a public burden on private persons.

transfers a public burden to private persons. | murrer, our conclusion is that the two ques(4) That it requires the performance of a service without adequate consideration, and takes private property without due process of law. (5) That it is an impairment of its contract rights, in violation of the con- We may well premise the discussion by tract clause of the Federal Constitution. referring to the provisions of a prior ordi(6) That dust arises in the course of nature, nance on the same subject-matter, bearing and is not caused or created by the operation the number 12,911, C. S., which was examof its cars, and consequently the ordinance ined by this court in State v. New Orleans unwarrantably and unreasonably imposes City & Lake R. Co. 49 La. Ann. 1571, 39 L. that duty upon it. On the other hand, it is R. A. 618, 22 So. 839, as that ordinance and the contention of the city attorney that the decision will serve to illustrate the one uncity council, in the exercise of the police der consideration. It is as follows, viz.: power which is vested in the city of New Or- Be it enacted: That hereafter it shall be leans, has the right to enact ordinances so "unlawful for any person, firm, or corporaregulating the use of streets by electric rail- tion to operate any electric, trolley, or other ways as to compel them to keep their tracks cars or trains on the streets of this city in such condition as to prevent a nuisance, without providing in some reasonable manand to protect the health, convenience, and ner for the sprinkling of the streets through comfort of its inhabitants; that an ordi- which their cars run." That ordinance nance which requires street-car corporations contained a penal clause, which is as folto water their tracks so as to effectually lows, viz.: That any person, firm, or corkeep down the dust thereon is definite and poration violating this ordinance, shall be reasonable, and as such it is a valid and guilty of a misdemeanor and shall be subproper exercise of the police power. His ject to a fine of $25, or thirty days in the further contention is: That the police pow- parish jail, or both at the discretion of the er of a city cannot be alienated or bartered recorder," etc. Ordinance No. 13,835, C. S., away by any contract, and consequently the is an attempted reformation of ordinance city always retains the right to impose upon No. 12,911, C. S., so as to meet the interprecitizens and corporations-particularly upon | tation which this court had placed upon it those exercising and operating public fran- in the case cited. The differences between chises the duty and burden of so conduct- the two are radical, in several respects: ing their operation and use as to promote the convenience and to protect the health and the comfort of the public; and it forms a necessary incident of the contract, which is read into it. That all persons, natural and artificial, are subject to the police regulations of the municipality in which they live. Two things are conspicuous upon casual inspection of the ordinance: (1) That its provisions exclusively deal with corporations operating lines of street cars within the city of New Orleans under franchises acquired from the city council; (2) and do not deal with any contract right, as such, corporations have acquired from the city under their franchises. The ordinance under consideration confessedly, and in terms, proposes an exercise of the police power under municipal regulation, and that alone. The questions which arise are the following, viz.: (1) Is the ordinance indefinite, unreasonable, or lacking in uniformity? (2) Does it transfer a public burden to private individuals or persons, or take property without due process of law or adequate compensation? The ordinance is couched in the simplest form of words, viz.: "Be it enacted," etc., "that each and every company or corporation operating streetcar lines within the limits of the city of New Orleans shall water their tracks so as to effectually keep the dust on same laid,"providing a penalty for its violation. It is certainly neither indefinite, nor wanting in uniformity. It does not propose to take the private property of the corporation without due process of law.

(1) The later ordinance does not provide, as the prior ordinance did, that it shall be unlawful for any company or corporation to operate an electric car on a street of the city without providing for "the sprinkling of the streets through which their cars run." (2) The later ordinance does not provide, as the prior ordinance did, that any firm or corporation violating its provisions should "be guilty of a misdemeanor." (3) The later ordinance simply requires that each and every corporation "shall water their tracks so as to keep the dust on same laid." After paraphrasing the prior ordinance, our opinion speaks of its operation in this wise, "The facts as developed by the testi

viz.:

mony are that by reason of the velocity of the car, and its weight, and its rapidly revolving wheels, volumes of dust are raised, and wafted by the winds to the streets adjacent to the tracks; that the clouds of dust are counter to the health and comfort of the inhabitants." From the large number of defenses and pleas which the defendant had urged in that case, as it has in this, our opinion selected that of unreasonableness and indefiniteness; resting the conclusions of the court mainly upon the authority of Yick Wo v. Hopkins, 118 U. S. 371, 30 L. ed. 226, 6 Sup. Ct. Rep. 1064. Our opinion then says: "There is indefiniteness in the ordinance; it does not set forth with the least particularity what shall be done, or the extent of the service required in order to escape the penalty it ordained should be inflicted for not sprinkling the streets. The failure or performance may After making the foregoing careful synop-vary each day, and in each locality where sis of the ordinance and the defendant's de- sprinkling may be required. No attempt

was made to indicate how the work shall be upon the ground that it should be unlawful done, the days the streets shall be sprinkled, for a corporation "to operate any electric, the capacity for sprinkling the sprinklers trolley, or other cars or trains on the streets should have, and the number of sprinklings of the city without first providing, in some that should be applied each day, or at such reasonable manner, for the sprinkling of time as may have been intended. Without the streets through which their cars run;" a matured plan covered by the terms of an that is to say, from curb to curb. That ordinance in regard to sprinkling the provision required street-car companies to. streets, nothing good or useful can be ac- provide "in some reasonable manner for thecomplished. It will give rise only to con- sprinkling of the streets through which fusion and failure. Authority must issue their cars run," notwithstanding they were its orders with such clearness and definite- at the same time used and employed for the ness that it may be understood, and the general uses and traffic of the city. Simply work required should be specified so that because they exercised a franchise upon cerperformance can be required in every local- tain streets of the city, the ordinance sinity, and from everyone, under some defined gled out these corporations, and imposed rule. There should be some similarity in upon them, solely and alone, the bearing of the work in each district. There cannot be a public burden which should have been disunder this ordinance in hand. There should charged by the city, or shared by the generbe a measure of duty imposed, and those al public. Besides that, the terms of the upon whom it is imposed should not be left ordinance, which required of street-car comto conjecture how much or how little they panies that they should provide "in someshould do." The opinion then deals with reasonable manner for the sprinkling of the the question of the equality and uniformity streets," were most indefinite and indefinof the operation of the ordinance, and it able as to time, manner, amount, and exthus proceeds: "This brings us to the ob- tent. The ordinance under present considjection that the ordinance is not equal and eration is free of many of those complicauniform in its operation, and imposes an tions, and it was doubtless the intention unjust and oppressive burden upon a partic- of the city council that it should be entirely ular class of persons or corporations. In disembarrassed by them. Recurring to its so far as it relates to the work of 'sprin- phraseology, we find "that each and every kling' the streets from curb to curb, less that company or corporation operating streetportion over which defendant has a fran- car lines within the limits of the city of chise, in our judgment the requirement of New Orleans shall water their tracks," but the ordinance is not equal and uniform. not only so, but to water them "so as to efThose streets are used by the public. The fectually keep the dust on same laid." It work necessary to maintain their cleanli- is obvious that the duty imposed is specific; ness, or to insure freedom from excessive that is, "to water their tracks." It does dust, is a burden which the municipality not require them to "sprinkle the streets," cannot impose upon particular persons and nor to sprinkle their tracks; but to "water" corporations only because they own a fran-them. Water them where, and to what exchise over an adjacent way. defendant cannot be compelled to clear and sprinkle streets not covered by its contract, and over which it has no franchise. The dust raised by defendant's cars, it may be, is carried by the winds to the streets near. The evidence does not disclose that such is a fact. Presumably, however, it is; 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 illus-porations of a public burden. trating 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.

The tent? "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 sprinkling 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 cor

This extended quotation from our opinion was considered necessary for the purposes of showing that the ordinance was considered indefinite and unreasonable principally

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

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 elec

A. No, sir.

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." Ibid. They are specially required "to suppress all nuisances." Ibid. 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, 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 rea-tric cars? sonable 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 cleanliness 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 A. Well, it stays on the street. To a them, will produce a sufficient quantity of dust, in their operation, to constitute a nui- very large extent the cars have a tend(Our italsance to passengers, and become detriment-ency to brush it off the tracks. ics.) al to public health, needs no demonstration. Of course, it is idle for the council to attempt to coerce those corporations to so cperate 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

muddy, and the vehicles, as you say, by the Q. After a rain, and the streets become mud being attached to their wheels, carry it and deposit it on the tracks, what becomes

of it?

the vehicles grind that mud into dust.
A. The mud is dried first, of course, and

Q. The vehicles grind the mud into dust?
A. Yes, sir; other vehicles.
Q. Vehicles alone?

A. Vehicles and animals.

towards grinding this mud into dust?
Q. In what respect do the cars contribute
surface of the rails.
A. To a very small extent,-only on the

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?

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 railsbetween 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." | the authorities to enforce this ordinance Again: which the accused is charged with violating?