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 passen 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. of the judgment of the layman and casual | amples counsel gives of the right which the observer, or that of scientific analysis and proprietor of a dray, the water cart, the sanitation, we think it reasonably clear omnibus, furniture van, sugar wagon, cotthat the operation of the street electric cars ton float, and pleasure vehicle has to the is the principal cause of the dust which is free use of the street for the purposes of complained of, and that it is shown to be a his business are inappropriate, because neinuisance, injurious to the public health, ther exercises a franchise on the public and that of persons who use them for pur-streets of the city, but their use of the poses of travel, and detrimental to the com- streets is just the same as that of any othfort and convenience of the public. We re- er private citizen. While each of said gard the foregoing evidence as a complete proprietors is licensed by the city to puranswer to the following proposition, which sue his respective calling, his use of the we have extracted from the brief of defend- streets is merely incidental thereto. But ant's counsel, viz.: "The defendant fur-the street-car company purchases from the ther shows that the need to keep the dust laid on the lines of track, if any such need there be, was a necessity 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-gers and the detriment to public health is 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 question arises, upon the foregoing the municipal authorities to the inhabit- state of facts, whether the watering of the ants." Again: "The Canal & Claiborne tracks of the street-railroad companies so Railroad Company, the licensee of the city as to effectually keep down the dust, as proof New Orleans, has purchased and paid for posed in the ordinance, is an exercise of the the right to use certain streets for the car-police power. If so, is it reasonable, defirying 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 rea-of defendant's franchise must be reasonably son to require the street-car companies to supposed to have been within the contemperform this service, at great expense, when plation of the contracting parties when the the service is not required of other persons franchise was secured, and, consequently, or firms or corporations making a like use an incident thereof; (2) that the greatly of such public highways. And when it is increased convenience and comfort of travel seen that the dust is not produced by the which the suppression of the dust would railway company, is not brought upon the occasion would entirely compensate the instreet by them, but its appearance and the creased cost by a corresponding increase of annoyance of the dust is not related to the travel. The principles of law appertaining operation of the railroad lines, to require to the exercise of the police power of a state them to lay' the dust would be no more rea- or municipal government have been so fresonable than to require them to remove the quently enunciated by the courts of this garbage, sweep the streets, clean the gut-state, as well as by those of other states and ters, or light and pave the streets, or main of the supreme court, that the chief diffitain the police along their route." The ex- culty presented to the judicial mind con nite, and equal and just in its operation? The ordinance is merely a municipal regulation, and in no sense a criminal statute. Amite City v. Holly, 50 La. Ann. 627, 23 So. 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 council 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. 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. To this proposition there are two sufficient answers: (1) That this exigency sists 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 tranquility, 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 civil 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 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, 25 L. ed. 1079, 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 and elsewhere 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 de nies, however, that it extends to all matters affecting the public health or the public morals." See also Boston Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. ed. 989; Patterson v. Kentucky, 97 U. S. 501, 24 L. ed. 1115: Boyd v. Alabama, 94 U. S. 645, 24 L. ed. 302; Northwestern Fertilizing Co. v. Hyde Park, 97 U. S. 659, 24 L. ed. 1036; Munn v. Illinois, 94 U. S. 124, 24 L. ed. 83; Metropolitan Bd. of Excise 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, 4 L. ed. 629. 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 creatures of the government creation are subject to such rules and regulations as may from time to time be ordained and established for the preservation of health and morality. The contracts which the Constitution protects are those that relate to property rights not governmental." (Our italics.) The foregoing authorities, particularly the last, seem especially appropriate to this case. In making an application of these principles one of the text writers says that the correct doctrine is "that, while the state may not prohibit a business, innocent in itself, when it is pursued in a lawful way, not injurious to the community, and while the police regulation of pursuits and of the employment and uses of property must be limited to such restrictions as are reasonably necessary to protect legitimate public interests, and to secure, as far as possible, the largest freedom and the greatest good of all members of the community, it is not within the authority of judicial tribunals to set aside laws enacted ostensibly to promote the public welfare, unless it is perfectly clear upon the face of the statutes, or from their terms, that they have no real or substantial relation to the objects to which they purport to be directed, or that they infringe upon and impair fundamental rights secured by constitutional guaranties." Parker & W. Public Health & Safety, § 8; Tiedeman, Pol. Power, § 2; Cooley, Const. Lim. pp. 177, 201; Davis v. State, 68 Ala. 58, 44 Am. Rep. 128; State v. Wheeler, 25 Conn. 290; Boston v. Cummins, 16 Ga. 102, 60 Am. Dec. 717; State v. Clottu, 33 Ind. 409; Humes v. Missouri P. R. Co. 82 Mo. 221, 52 Am. Rep. 369; Bertholf v. O'Reilly, 74 N. Y. 509, 30 Am. Rep. 323. "In other words," says the writer, "the right to exercise the police power cannot be alienated, surrendered, or abridged by a state legislature by any act, grant, charter, contract, or delegation whatsoever, because, it is said, it is a governmental function, without which the legislature would be powerless to protect those rights which it was especially designed to secure. So that the legislature cannot, even by charter granted to a corporation, confer any irrepealable right to continue the exercise of franchises in a way that may have become injurious to the public,"-citing Stone v. Mississippi, 101 U. S. 814, 25 L. ed. 1079. In treating of the police control of corporations, Mr. regulations of corporations must be confined to the enforcement of the maxim, Sic utere tuo ut alienum non ladas, subject to the observance of which every corporate charter must be supposed to have been sanctioned by this court in State v. Heidenhain, 42 La. Ann. 483, 7 So. 621, in which it was said by the court: "The police power delegated to the city of New Orleans in to maintain its cleanliness and health, to maintain good sanitary conditions in the streets, public places, and buildings, to suppress all nuisances, and to impose a fine and imprisonment for the violation of ordinances," etc. Again: "The authority to abate nuisances is a part of the police power vested in all large and populous cities. To determine what is a nuisance is a question of fact." In that case this court maintained, as a valid and reasonable exercise of the police power of the city of New Orleans, an ordinance prohibiting smoking in the street cars of the city. In State v. Lochte, 45 La. Ann. 1405, 14 So. 215, this court maintained the legality of an ordinance of the city of New Orleans which prohibited private individuals from obstructing the streets and banquettes of the city, as an exercise of the police power of the city. Tiedeman says: "It has been supposed that, because it is the settled law of this country that the legislature of a state cannot repeal or amend the charter of a private corporation, unless the power is expressly reserved, these perpetual corpora-granted." The foregoing principles were tions are placed beyond the reach of the ordinary police power of the state; that, while the rights of the natural person are subject to the exercise of the police power in the interest of the public, those corpora-its charter gives ample authority to the city tions are free from this burden, because the slightest police regulation operates as a restriction of the enjoyment of the corporate franchise, and hence impairs the obligation of the contract. Such a construction of the operation of this constitutional provision is not only scientifically absurd, but it is in violation of the ordinary rules of constitutional construction, which provide for a strict construction of all grants by the state to the individual. Apart from the question whether the state can barter away its police power, the intention of the legislature to place a private corporation beyond the reach of the police power of the state, to grant to a corporation the right to do what it pleases in the exercise of its corporate powers, it matters not how much injury is inflicted upon the public, and yet be subject to no control or restraint which is not provided by the laws in force when the charter was granted, is so manifestly unreasonable that we cannot suppose that the legislature so intended, unless this extraordinary privilege is expressly granted. The subjection of existing corporations to new police regulations does not involve a repeal or amendment of the charters for an act of incorporation simply guarantees the right to act and do business as a corporate body, subject, of course, to the laws of the land, and the legitimate control of government." (Our italics.) Tiedenan. Pol. Power, §§ 189, 190. These two sections of that excellent treatise are largely drawn from the conspicuous Louisiana case. Butchers' Union S. H. & L. S. L. Co. v. Crescent City L. S. L. & S. H. Co. 111 U. S. 746, 28 L. ed. 585, 4 Sup. Ct. Rep. 652. In that case the court broadly and emphatically said that the legislature of a state "cannot, by any contract, limit the exercise of those powers to the prejudice of the genThe court sustained the ordieral welfare. These are the public health and public morals. The preservation of nance as legal, and rested their conclusions these is so necessary to the best interests of mainly upon Richmond, F. & P. R. Co. v. social organization that a wise policy for- Richmond, 96 U. S. 521, 24 L. ed. 734, in bids the legislative body to devest itself of which the court held that "the appropriate the power to enact laws for the preservation regulation of the use of property is not of health and the repression of crime." 'taking' it, within the meaning of the conThe author again says (§ 191): "But the stitutional prohibition." Judge Dillon, in a corporation is no more subject to arbitrary recent edition of his work, approves the deregulations than is the individual. In or- cision of the Georgia court, and says: "Under that the regulation of a corporation der its police power and authority over may be within the constitutional limita- streets, a city may require street-railway tions of police power, it must have refer- companies to keep their streets watered, so ence to the welfare of society by the preven- as to be free from dust." 2 Dill. Mun. Corp. tion or control of those actions which are 4th ed. § 721. McDonald v. Toledo Consol. calculated to inflict injury upon the public Street R. Co. 20 C. C. A. 322, 43 U. S. App. or the individual. As in all other cases of 79, 74 Fed. 104, announces a similar docthe exercise of the police power, the police 'trine. A similar ordinance was sustained But, in addition to the foregoing authorities on the general principles of law applicable to this kind of a case, we have been referred to a case in point (City & Suburban R. Co. v. Savannah, 77 Ga. 732), and from the statement in the opinion it appears that the appellant was fined by a city police court on the charge of "neglecting to water the track on which it ran through the streets of the city." The court said: "Surely, to keep down the dust from the railway's own tracks, by watering them, within the city limits and on its streets, is a very requisite and necessary thing for the welfare and convenience of the inhabitants on the streets over which the road is constructed, to say nothing of its health-preserving effect. The cars constantly run. Almost every minute they pass each house on the street, and, if the track be left unwatered, the dust becomes very inconvenient to those who lodge in the houses, and in warm weather sit on the stoops or open the windows." by the Pennsylvania court recently, in | Libel & Slander, 205, 206; 2 Addison, Torts, Chester v. Chester Traction Co. 5 Pa. Dist. R. 609. On reason and authority we are of opinion the ordinance of the city council of the city of New Orleans must be sustained as a legal exercise of the police power, and as neither indefinite nor unreasonable. Judgment affirmed. §§ 109e, 1128, 1131, pp. 931, 963, 965; Artieta v. Artieta, 15 La. Ann. 48; Haney v. Frost, 34 La. Ann. 1147, 44 Am. Rep. 461; Boullemet v. Phillips, 2 Rob. (La.) 365; Muse v. Acey, 37 La. Ann. 383; Young v. Bridges, 34 La. Ann. 336; Fulda v. Caldwell, 9 La. Ann. 358. One who himself is at fault, whether civ Petition for rehearing denied December 5, illy or criminally, cannot recover damages 1898. Writ of error dismissed by Supreme Court of United States March 13, 1900. Fernand J. BUISSON Auguste HUARD, Appt. (106 La. 768.) The aspersions of the defendant upon the plaintiff's character were neither just nor well founded. In view of the fact, however, that he did not originate nor volunteer the matters complained of, but made use of them in answer to inquiries made of him by interested parties, touching defamatory remarks made by other persons, the court holds him protected from an action for damages under the rules which the court refers to governing privileged, confidential communications. A (Blanchard, J., dissents.) (December 16, 1901.) PPEAL by defendant from a judgment of the Civil District Court for the Parish of Orleans, Division "A," in favor of plaintiff in an action brought to recover damages for slander. Reversed. The facts are stated in the opinion. Messrs. Henry Chiapella and Gustave V. Soniat, for appellant: There can be no malice, and a person is justified, in calling, in private, another person a thief or embezzler when the agent or accused admits having retained moneys of his principals for a debt which is not liqui dated. Civil Code, art. 3023; Young v. Jackson, 37 La. Ann. 810; Act 31 of 1888. It is a privileged communication when, in answer to inquiries, a person makes a discovery, or a bona fide communication, which he knows or believes to be true. 18 Am. & Eng. Enc. Law, p. 412; Odgers, Headnotes by NICHOLLS, Ch. J. NOTF. For another case in this series as to libel by statements made in response to request for information concerning person, see Byam v. Collins (N. Y.) 2 L. R. A. 129. As to liability for defamatory words used in course of duty, see Hemmens v. Nelson (N. Y.) 20 L. R. A. 440; Caldwell v. Story (Ky.) 45 L. R. A. 735; Redgate v. Roush (Kan.) 48 L. R. A. 236; and Finley v. Steele (Mo.) 52 L. R. A. 852. from another. The doctrine of contributory fault applies to suits of slander as well as to all damage cases. Staub v. Van Benthuysen, 36 La. Ann. 467; Goldberg v. Dobbertson, 46 La. Ann. 1303, 28 L. R. A. 721, 16 So. 192; Mihojcvich v. Bodechtel, 48 La. Ann. 619, 19 So. 672; Simons v. Lewis, 51 La. Ann. 330, 25 So. 406; Newell, Defamation, § 43, p. 795; Lobe v. Cary, 33 La. Ann. 915; Dearmond v. St. Amant, 40 La. Ann. 374, 4 So. 72; Mosley v. Yearwood, 48 La. Ann. 334, 19 So. 274; Lester v. Corley, 45 La. Ann. 1006, 13 So. 467. Mr. James J. McLoughlin, for appel lee: To call a man a thief, when he is not one, makes you liable for damages, and it is not necessary to prove any special damages. Lobe v. Cary, 33 La. Ann. 914. A slanderer's only defense in a civil suit. is to prove the truth of the charges preferred. Staub v. Van Benthuysen, 36 La. Ann. 469. One who falsely informs the family of a young woman that her fiancé is a thief and embezzler, thereby inducing them to break off all social intercourse between the young for which he should be mulcted in heavy people, commits a most reprehensible offense damages. "The Count Joannes" v. Bennett, 5 Allen, 169, 81 Am. Dec. 738. Where plaintiff has appealed to the courts against slander and abuse, his case being made out, he is entitled to substantial redress. Simpson v. Robinson, 104 La. 180, 28 So. 908. Cook v. Tardos, 6 La. Ann. 779; Mohrman v. Ohse, 17 La. Ann. 64; Bonnin v. Elliott, 19 La. Ann. 322; Dufort v. Abadie, 23 La. Ann. 280; Weil v. Israel, 42 La. Ann. 963, 8 So. 826; Savoie v. Scanlan, 43 La. Ann. 967, 9 So. 916; Warner v. Clark, 45 La. Ann. 863, 21 L. R. A. 502, 13 So. 203; Taylor v. Ellington, 46 La. Ann. 371, 15 So. 499; Wimbish v. Hamilton, 47 La. Ann. 252, 16 So. 856; Harris v. Minvielle, 48 La. Ann. 908, 19 So. 925; Poissenot v. Reuther, 51 La. Ann. 965, 25 So. 937; Mequet v. Silver man, 52 La. Ann. 1369, 27 So. 885; Simpson | into the family of the young lady mentioned v. Robinson, 104 La. 180, 23 So. 908. Nicholls, Ch. J., delivered the opinion of the court: and marrying her. He averred that on a certain occasion in the month of March, 1900, he was sent for by the mother of the young lady, several of her sisters, and a The plaintiff charges: That in April, brother-in-law to call at the latter's resi1900, in a public place, to wit, the clerk's dence, and was there interrogated by the office of the criminal district court for the mother relative to a statement derogatory parish of Orleans, and in the presence and to plaintiff's character and reputation which hearing of several persons, the defendant had been made by two young ladies belongwilfully, maliciously, and falsely stated to ing to defendant's family, and when asked one G. A. White that petitioner was a thief; to affirm or deny such statement defendant that he had stolen some money from a suc- had frankly and manfully admitted such, cession; and that he was unfit to associate and said that plaintiff had not acted honestwith any respectable family. That in the ly in the matter of a certain succession promonth of August, 1900, the defendant stated ceeding in the Republic of Mexico the winin his office on Carondelet street, and in the ter before, when he had been sent there in presence of said White, Charles A. Laroque the interest of the two young ladies, who Turgeau, and Armand Desmaré, that peti- were nieces of respondent; and that he had tioner was a thief; that he had stolen $300 drawn from the attorney of said succession from a succession; that he was a crapule, in Mexico $300 of the succession funds, a bon-à-rien; and that he was unfit to asso- which he had appropriated to himself, and ciate with any respectable family. That could not legitimately account for; that he petitioner was a young man 25 years of age, added that, to cover his said deficit and apa native of New Orleans, where he had re- propriation of the succession funds belongsided all his life. That he had since 1898 ing to his nieces as heirs of said succession, been visiting with matrimonial intentions, he had rendered them an account which was and intended to marry, a young lady of that false, illegal, and extortionate; that at said. city. That said White and Desmaré were interview no one was present but the moththe brothers-in-law of said young lady. That er of the young lady, one of her sisters, and said slanderous statements, communicated a brother-in-law; that the matter was strictby these persons to the father and mother ly confidential, and kept a secret between of the young lady, resulted in their exclud- them; that subsequently, in April, 1900, ing petitioner from their house, and forbid plaintiff having caused certain criminal proding him from visiting their daughter and ceedings to be instituted in the criminal distheir daughter from seeing him, and pre-trict court against the two young ladies, relventing him also from continuing his atten- atives of respondent, respondent having been tions to her. That defendant made said summoned as a witness before the grand statements slanderously and maliciously jury, one George A. White, a brother-in-law and wilfully, with the intention of injuring of the young lady to whom plaintiff repetitioner in character and reputation by ferred, met respondent in the clerk's office making such statements public; and that pe- of said court, and interrogated him on the titioner had been injured in his character same subject, and respondent then and there and reputation, and had been prevented frankly and manfully repeated to said White from associating with this young lady whom what he had said in the private interview he had been so visiting, whose parents had with the other parties concerning the rensince refused to permit him to visit their dition of the false account by plaintiff in house. That these said slanderous state- the succession matter before stated, and proments had so poisoned the minds of the par- duced and exhibited to him the written acents of the young lady and the parties to count of plaintiff, which White then and whom the statements were made that they there read, and respondent characterized the really believed him to be what defendant transaction as a swindling operation; that so maliciously charged him with being, to no one was present at said interview but wit, a thief, and a person of bad character. White and himself, and that what was said That said slanderous and malicious state was in the nature of a confidential communiments had caused him great suffering and cation; that subsequently, in April, 1900, anxiety of mind, and had injured him as the said White, together with another brothstated. That the extent of the injury was er-in-law of the young lady, and Mr. Lanot less than $5,000, for which he prayed for roque Turgeau, called at respondent's office judgment, with interest. After pleading a on Carondelet street, and asked him to af number of exceptions, which were overruled, firm or deny what he had said to Mr. White defendant answered, after pleading first the as before stated, and that respondent, while general issue. He then averred that it was not desirous of doing injury to plaintiff, or not true that he had made any statements preventing his marriage, could not but reconcerning plaintiff slanderously, malicious- iterate the truthful statements concerning ly, and wilfully, with the intention of injur- the succession matters in Mexico and the ing him in character and reputation by mak- manner in which plaintiff had obtained and ing such statements public, as was alleged misappropriated the funds of the succes in the petition; that he entertained no mal- sion; that the matter was strictly confidenice towards the plaintiff, who was a distant tial between all parties, and whatever serelative of his; and that he had no motive, vere expressions were used by respondent interest, or objection to plaintiff's entering on this occasion in his own office, privately |