LAW, CONSTITUTIONAL. 



471 



dice of the public health or the public safety. It is 

 none the less a contract because the manufacture and 

 distribution of gas, when not subjected to proper su- 

 pervision, may possibly work injury to the public ; 

 for the grant of exclusive privileges to the plaintitf 

 docs not restrict the power of the State, or of the 

 municipal government of New Orleans acting under 

 authority for that purpose, to establish and enforce 

 regulations, not inconsistent with the essential rights 

 granted by plaintiffs charter necessary for the protec- 

 tion of the public against injury, whether arising from 

 the want of due care in the conduct of its business, or 

 from the improper use of the streets in laying gas- 

 pipes, or from the failure of the grantee to furnish gas 

 of the required quality and amount. The constitu- 

 tional prohibition upon State laws impairing the ob- 

 ligation of contracts does not restrict the power of the 

 State, to protect the public health, the public morals, 

 or the public safety, us the one or the other may be in- 

 volved in the execution of such contracts. Eights 

 and privileges arising from contracts with a State are 

 subject to regulations for the protection of the public 

 health, the public morals, and the public safety, in the 

 same sense and to the same extent as are all contracts 

 and all property, whether owned by natural persons 

 or corporations. 



Whatever, therefore, in the manufacture or distri- 

 bution of gas in the city of New Orleans proves to be 

 injurious to the public health, the public comfort, or 

 the public safety, may, notwithstanding the exclusive 

 grant to plaintiff, be prohibited by legislation, or by 

 municipal ordinance passed under legislative author- 

 ity. It can not be said with propriety that to sustain 

 that errant is to obstruct the State in the exercise of 

 her power to provide for the public protection, health, 

 and safety. The article in the State Constitution of 

 1879 in relation to monopolies is not, in any legal 

 *ense, an exercise of the police power for the preser- 

 vation of the public health, or the promotion of the 

 public safety, for the exclusivoness of a grant has 

 no relation whatever to the public health or to the 

 public safety. These considerations depend upon the 

 nature of the business or duty to which the grant re- 

 lates, and not at all upon the inquiry whether a fran- 

 chise is exercised by one rather than by many. The 

 monopoly clause only evinces a purpose to reverse 

 the policy previously pursued of granting to private 

 corporations franchises accompanied by exclusive priv- 

 ileges, as a means of accomplishing public objects. 

 That change of policy, although manifested by consti- 

 tutional enactment, can not affect contracts which, 

 when entered into, were within the power of the State 

 to make, and which, consequently, were protected 

 against impairment, in respect of their obligation, by 

 the Constitution of the United States. A State can 

 no more impair the obligation of a contract by her or- 

 ganic law than by legislative enactment, for her Con- 

 stitution is a law within the meaning of the contract 

 clause of the national Constitution. 



The principles affirmed in this case were 

 held, in opinions rendered at the same time, 

 to govern in the case of the Louisville Gas 

 Company vs. the Citizens' Gas-Light Com- 

 pany, and in the case of the New Orleans 

 Water-Works Company vs. Robert C. Riv- 

 ers. The charter of the plaintiff in the lat- 

 ter case granted to it the exclusive privilege 

 of supplying New Orleans with water drawn 

 from the Mississippi through pipes laid in the 

 streets. The defendant was the lessee of the 

 St. Charles Hotel, and the Court held that he 

 had no right, even with municipal authority, 

 to lay pipes in the public thoroughfares for 

 the purpose of supplying his house with water 

 from the Mississippi, as this was a privilege 

 secured exclusively to the New Orleans Water- 



Works Company. After remarking that there 

 was no difference in principle between this 

 case and the gas case, the Court said : 



The right to dig up and use the streets and alleys 

 of New Orleans for the purpose of placing pipes and 

 mains to supply the city and its inhabitants with 

 water is a franchise belonging to the State, which she 

 could grant to such persons or corporations and upon 

 such terms as she deemed best for the public interest. 

 And as the object to be attained was a public one, for 

 which the State could make provision by legislative 

 enactment, the grant of the franchise could be accom- 

 panied with such exclusive privileges to the grantee, 

 m respect of the subject of the grant, as in the judg- 

 ment of the legislative department would best promote 

 the public health and the public comfort, or the pro- 

 tection of public and private property. Such was 

 the nature of the grant to plaintiff, which, not being 

 at the time prohibited by the Constitution of the 

 State, was a contract, the obligation of which can not 

 be impaired by subsequent legislation, or by a change 

 in her organic law. it is as much a contract, within 

 the meaning of the Constitution of the United States, 

 as a grant to a private corporation for a valuable con- 

 sideration, or in consideration of public services to be 

 rendered by it, of the exclusive right to construct and 

 maintain a railroad within certain lines and between 

 given points, or a bridge over a navigable stream 

 within a prescribed distance above and below a desig- 

 nated point. 



It is idle to insist that this contract was prejudicial 

 cither to the public health or to the public safety, as 

 might, perhaps, be said to be the case if the State, 

 after making it, was prevented from exercising any 

 control whatever over the_ matter of supplying the 

 city and its inhabitants with water. But, notwith- 

 standing the exclusive privileges granted to the 

 plaintitf, the power remains with the State, or with 

 the municipal government of New Orleans, acting 

 under legislative authority, to make such regulations 

 as will secure to the public the uninterrupted use of 

 the streets, as well as prevent the distribution of 

 water unfit for use, and provide for such a continuous 

 supply, in quantity, as protection to property, public 

 jmd private, may require. 



The contract with the Water-Works Company does 

 not interfere with, but expressly reserves the riparian 

 rights of any one "contiguous to the river." To 

 that class the appellee does not belong ; for his hotel 

 is distant many blocks from the Mississippi River, 

 and others own and occupy the intervening property. 

 Nor does the contract assume to interfere with tfie 

 right of any person or corporation, even when not 

 contiguous to that stream, to supply their places of 

 business or residences with water therefrom, obtained 

 otherwise than by pipes, mains, or conduits laid in 

 the public ways or the city. 



Constitutionality of State Militia Laws. The 

 power of the several States to enact militia 

 laws was upheld by the Supreme Court in an 

 opinion, handed down Jan. 4, 1886, in the case 

 of Presser vs. Illinois. The military code 

 of that State declares that " it shall not be 

 lawful for any body of men whatever, other 

 than the regular organized volunteer militia of 

 this State, and the troops of the United States, , 

 to associate themselves together as a military 

 company or organization, or to drill or parade 

 with arms in any city or town of this State 

 without the license of the Governor thereof, 

 which license may at any time be revoked." 

 An exception, under specified regulations, is 

 made in favor of students in schools '' where 

 military science is a part of the course of 

 instruction." The next section provides that 



