City of New Orleans v. Louisiana Const/Opinion of the Court
[Statement of Case from pages 654-661 intentionally omitted]

Henry C. Miller and Carleton Hunt, for plaintiff in error.

E. H. McCaleb, for defendant in error.

Mr. Justice, GRAY, after stating the facts as above, delivered the opinion of the court.

Upon the admitted facts of this case, it is undisputed and indisputable that the spaces of land in question were originally part of the public quay or levee in New Orleans, dedicated to public use, and, in the phrase of the law of Louisiana, locus publicus, and that they never ceased to be such, so as to become private property subject to be taken on execution for debt, unless by force of the ordinance and lease of the city. Civil Code, arts. 454, (445,) 458, (449;) Mayor v. Magnon, 4 Mart. (La.) 2; Mayor v. Hopkins, 13 La. 326; Railroad Co. v. First Municipality, 7 La. Ann. 148. Two questions have been argued: First. Whether the city of New Orleans had power to dispose of the land so as to change its destination or character as locus publicus, and make the land its own private property. Second. Whether the city has done so.

Upon consideration of the opinions heretofore delivered by this court and by the supreme court of Louisiana, the solution of the first question appears to be not wholly free from doubt. New Orleans v. U.S., 10 Pet. 662; Board of Liquidation v. Louisville & N. R., 109 U.S. 221, 3 Sup. Ct. Rep. 144; Packwood v. Walden, 7 Mart. (N. S.) 81; Delabigarre v. Second Municipality, 3 La. Ann. 230; Parish v. Second Municipality, 8 La. Ann. 145 See, also, New Orleans v. Morris, 3 Woods, 103; Hart v. New Orleans, 12 Fed. Rep. 292. We abstain from expressing any opinion upon that question, because it is unnecessary to the decision of this case, inasmuch as we are of opinion that, if the city had the power contended for, it has not exercised it.

The object of the ordinance, as declared in its title and recited in the lease, is 'to provide for the shelter and protection of sugar and molasses received at the port of New Orleans.' By the terms of the ordinance, repeated in the lease, the city grants the exclusive right for 25 years to use 4 public spaces, designated by the city surveyor, and not nearer than 150 feet to the present wharves, on the levee commonly known as the 'Sugar Landing,' for the purpose of erecting and constructing thereon fire-proof sheds, according to the plans of the city surveyor, for the reception and shelter of sugar and molasses, and the further right, in case these sheds 'shall not be of sufficient capacity to meet the demands of increased production, or the requirements of commerce,' to erect additional sheds on spaces to be designated by the city. The city guaranties to the lessee that he shall have undisturbed possession of the spaces and of the sheds erected thereon; that the sheds and the revenues derived therefrom shall not be subject to municipal taxation during the existence of the privilege; that the present landing for sugar and molasses shall remain where it now is, as designated on the plan aforesaid; and that no other landing for sugar or molasses, or privilege for its reception and shelter, shall be established or allowed y t he city. The lessee agrees to erect the sheds, 'with such accommodations and conveniences for the transaction of business as may be necessary,' and to keep them in repair, at his own expense, is authorized to charge certain prescribed rates on each hogshead or barrel, or other package, of sugar or molasses sheltered under the sheds, and agrees to pay to the city one-tenth of the gross amount of such charges, and to give security in the sum of $50,000 for the faithful performance of the contract. It is further provided that the wharfinger shall have the right, at any time when the levee is incumbered, to enforce the now existing regulations, and that the privilege granted by the lease shall not in any manner prevent the city from opening or extending streets at its pleasure. At the end of the 25 years, the city is to have the option of terminating the lease and taking the sheds at half their appraised value, or of extending the lease for 15 years, at the end of which the sheds shall revert to the city free of all cost. Among the public uses for which the quay or levee was established, and to which it was devoted, was the landing of sugar and molasses brought by the Mississippi river to the port of New Orleans in the regular course of commerce and navigation. The real and the declared purpose of the ordinance and of the lease was to secure the necessary shelter for the sugar and molasses so brought and landed. The various stipulations of the contract, including the grant to the lessee of the exclusive use of the sheds and of the spaces under them, and the exclusive privilege of receiving and sheltering sugar and molasses at the port, were intended and adapted to accomplish this purpose, with the greatest benefit to the public, and with the least expense to the city. The shelter of the sugar and molasses from the weather was not a new and distinct use, nor in any sense a private one, but was incidental to the principal public use of landing these articles of commerce. The sheds for sheltering the goods were as subservient to the public use of the quay as the wharves for landing them. The provisions requiring the lessee to erect the sheds 'with such accommodations and conveniences for the transaction of business as may be necessary,' and authorizing him to erect additional sheds, in case those first erected 'shall not be of sufficient capacity to meet the demands of increased production, or the requirements of commerce,' as well as the provision defining and limiting the rates which he may charge for sheltering the goods, clearly show that he was to exercise a quasi public employment, and was charged with a duty of accommodating the public, like a wharfinger, a warehouseman, or a common carrier, and had no right to refuse to shelter, to the reasonable capacity of the sheds, the sugar or molasses of any one applying to him, and paying him the prescribed rates. The city has not undertakes to alienate or sell the ground under the sheds, but has only leased it for a term of years, reverting at the end of that term, with the sheds built thereon, to the city for the benefit of the public. The ground has no more ceased to be devoted to the public use by the making of the lease and the erection of the sheds than if the city had itself built and managed the sheds for the promotion of commerce and the benefit of the city and its inhabitants. Moreover, the use of the levee for the equally important public use of a high way is carefully guarded by the provisions that the sheds shall not be nearer than 150 feet to the existing wharves, that the existing regulatins against incumbering the levee may be enforced by the wharfinger, and that the city may extend existing streets, or open new ones, notwithstanding any privileges granted by this contract.

Taking all the provisions of the lease together, we are of opinion that it in no way affected the character of the spaces in question as locus publicus, and that the city had no such private interest in those spaces, or in the sheds built upon them, as could be seized and sold on execution for the debts of the city. Decree reversed and case remanded, with directions to enter judgment for the city of New Orleans.

BREWER and BROWN, JJ., took no part in the decision of this case. 

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