Louisiana Public Service Commission v. Morgan's Louisiana & Texas Railroad & Steamship Company/Opinion of the Court
March 29, 1923, the appellant Commission issued an order which directed:

'That within 15 days from the date of this order the Morgan's      Louisiana & Texas Railroad & Steamship Company shall commence      to repair and put in a safe and suitable condition for      vehicular and other traffic, such repairs to be completed      within a reasonable time thereafter, the existing viaduct      over, above, and across the properties of the said Morgan's      Louisiana & Texas Railroad & Steamship Company in the Fifth      municipal district of the city of New Orleans, known as Algiers, within      the limits of the said property, which connects the two ends      of Newton street, and thereafter to maintain the same in a      safe and suitable condition. This order shall become      effective at once.'

By an original bill filed in the court below appellee challenged the validity of the order because beyond the power of the commission, and, if within such power, enforcement would deprive the company of property without due process of law and impair the obligation of its contract with the city of New Orleans, contrary to the federal Constitution. The allegations are sufficient to bring the controversy within the court's jurisdiction and empowered it to determine questions of both state and federal law. Greene v. Louisville & Interurban Railroad Co., 244 U.S. 499, 508, 37 Sup. Ct. 673, 61 L. Ed. 1280, Ann. Cas. 1917E, 88. A special court of three judges (Judicial Code, § 266 [Comp. St. § 1243]) heard the issues, held the commission lacked power to make the order, and directed an interlocutory injunction. See 287 Fed. 390. The cause is here by direct appeal.

In 1878 the appellee railroad company acquired title to certain land now in New Orleans, fronting 375 feet on the Mississippi river and extending back 4,000 feet, and for 40 years has held it under fence. Twenty tracks laid thereon are in constant use. During 1904 the city offered to sell the right to operate a street railway over this property, subject to part payment of the cost of constructing and the entire cost of maintaining the essential viaduct, which the city agreed to provide. This franchise was duly adjudicated, and in 1905 appellee, by definite contract, granted to the city the right to construct the present viaduct over its property at Newton street, upon the express condition that the grantee should pay for both erection and subsequent maintenance. Under this contract, and not otherwise, without expropriation of the right of way by the public or compensation to the land owner, the structure was erected. It is 2,000 feet long and extends several hundred feet on either side of appellee's land. For many years the street railway operated over its entire length. Finally, the portion over appellee's tracks fell into disrepair, and both city and street railway company failed to restore it. Finding this situation, appellant issued the order copied above.

Article 6, Louisiana Constitution of 1921, provides:

'Sec. 4. The commission shall have and exercise all necessary      power and authority to supervise, govern, regulate and      control all common carrier railroads, street railroads * * *      and other public utilities in the state of Louisiana, and to      fix reasonable and just single and joint line rates, fares,      tolls or charges for the commodities furnished, or services      rendered by such common carriers or public utilities, except      as herein otherwise provided. The power, authority and duties      of the commission shall affect and include all matters and      things connected with, concerning, and growing out of the      service to be given or rendered by the common carriers and      public utilities hereby, or which may hereafter be made      subject to supervision, regulation and control by the      commission. * * *

'Sec. 9. Until otherwise provided by the Legislature, all      laws enacted by the General Assembly of the state of      Louisiana since the adoption of the Constitution of 1898, and      in effect at the time of the adoption of this Constitution,      affecting, concerning, or relating to the Railroad Commission      of Louisiana, not inconsistent with any of the provisions      hereof, shall be construed as referring and applying to the      Louisiana Public Service Commission, and nothing in this      Constitution shall be construed as in any manner impairing or      affecting such laws.'

The commission claims that the power which it undertook to exercise is conferred by these sections and that the Supreme Court of the state so held in Gulf, C. & S. F. Ry. v. Louisiana Public Service Commission, 151 La. 635, 92 South. 143.

The court below entertained another view of the constitutional grant and of the opinion relied upon. We think the conclusion which it reached is correct, and its decree must be affirmed.

Article 284, Louisiana Constitutions of 1898 and 1913:

'The power and authority is hereby vested in the commission      [Railroad, Express, Telephone, Telegraph, Steamboat and other      Water Craft, and Sleeping Car Commission, created by Article      283], and it is hereby made its duty, to adopt, change or      make reasonable and just rates, charges and regulations, to      govern and regulate railroad, steamboat and other water      craft, and sleeping car, freight and passenger tariffs and      service, express rates, and telephone and telegraph charges,      to correct abuses, and prevent unjust discrimination and      extortion in the rates for the same, on the different      railroads, steamboat and other water craft, sleeping car,      express, telephone and telegraph lines of this state, and to      prevent such companies from charging any greater compensation      in the aggregate for the like kind of property or passengers,      or messages, for a shorter than a longer distance over the      same line, unless authorized by the commission to do so in      special cases; to require all railroads to build and maintain      suitable depots, switches and appurtenances, wherever the      same are reasonably necessary at stations, and to inspect      railroads and to require them to keep their tracks and      bridges in a safe condition, and to fix and adjust rates      between branch or short lines and the great trunk lines with      which they connect, and to enforce the same by having the      penalties hereby prescribed inflicted through the proper      courts having jurisdiction. * * *'

By Act 132 of 1918 the General Assembly of Louisiana directed:

'That the powers and duties of the Railroad Commission of Louisiana are hereby added to and enlarged; and      the power and authority is hereby vested in the said      commission, and it is hereby made its duty to require the      owner, possessor or operator of any railway, railroad, tram      road, log road, transportation, irrigation or drainage canal,      or syphon, crossing any public road already constructed or      which may hereafter be constructed, to construct and maintain      a suitable and convenient crossing over such public road, the      said crossing to extend to the limits of the right of way, or      fifty feet from the center of such railway, railroad, tram      road, log road, transportation, irrigation or drainage canal      or syphon, in accordance with the standard specifications      furnished by the state highway department of the board of      state engineers in respect to such crossings.'

The act further empowered the Railroad Commission to require such crossings upon proper certificates of the police juries in the respective parishes.

The broad language of section 284, Constitutions of 1898 and 1913, was not regarded as sufficient to empower the Railroad Commission to require carriers to construct public crossings over their lines. To meet this situation and provide relief in the parishes the act of 1918 was passed; and it was an order issued under this act which the Supreme Court sustained in Gulf, C. & S. F. Ry. v. Louisiana Public Service Commission.

Article 14, § 22, Louisiana Constitution of 1921:

'The electors of the city of New Orleans and of any political      corporation which may be established within the territory      now, or which may hereafter be embraced within the corporate      limits of said city, shall have the right to choose their      public officers. This section shall not prohibit * * * nor      shall it be construed as restricting the police power of the      state, or as prohibiting the Legislature from appointing, or      authorizing the appointment of, any board or commission with      full authority in the city of New Orleans other than that of controlling the      ordinary governmental functions of municipal government.'

Unless and until otherwise advised by the Supreme Court of Louisiana, we must conclude that the general control of its own streets is an ordinary governmental function of the city of New Orleans.

It would require more definite language than we find in the Constitution of 1921, or in Gulf, C. & S. F. Ry. v. Public Service Commission, to convince us that the commission has power to assume control over all those streets within New Orleans which approach or cross railroad tracks, and to disregard the solemn contracts of the municipality with respect thereto. That the liability which the commission has undertaken to impose upon appellee conflicts with the contract under which the latter granted permission to construct the viaduct over its property, is not denied. Only very clear and definite words would suffice to show that the state had undertaken to authorize a thing so manifestly unjust and oppressive.

Affirmed. 

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