On Rehearing.
LAND, J.Defendant renews his contention that the lease in question was illegal, and urges that the court erred in holding him, as lessee, estopped to set up such illegality. We are not prepared to admit that the lease was for an illegal purpose, or that the town, in making the contract, exceeded its powers in the premises. We held that defendant having, as lessee, enjoyed the use of the wharf, could not, when sued for the rent, plead that the place was locus publicus, and therefore his lessor had no power to make the contract. The public had not complained, and the lessee had not been disturbed in his enjoyment of the privilege acquired under the contract of lease. 1-Ie had no- right to occupy and use public property free of charge.
The charter of the city vested the mayor and council with the entire control of the *23banks of Bayou Boeuf and Berwick’s Bay, with the power to impose and collect levee fees or wharfage. Acts 1876, p. 23, No. 7.
In the instant case the leases were made “to promote the growth of, and encourage and extend, the fish and oyster business within the corporate limits of Morgan City,” and for that purpose the city granted the privilege of constructing piers and wharves and fish and oyster houses necessary to conduct the business. This privilege was offered to all persons who might desire to engage in such business on the condition that all oyster shells should be donated to the city for the purpose of constructing and extending bulkheads and improving roadways.
The city, under its powers of control and administration, might, have constructed the piers and wharves and charged fees for their use. Under the contract all improvements of that nature, as well as the buildings, were to revert to the city at the expiration of the leases.
In the case of Leonard’s Heirs v. Baton Rouge, 39 La. Ann. 275, 4 South. 241, the court held that the use of property as a landing and wharf for the reception of coal boats and coal is a public use, the public character of which is not destroyed by the fact that it is temporarily farmed out to particular parties.
This power of temporary lease in the interest of commerce is recognized in our jurisprudence, and was by the general corporation act of 1898 conferred on all municipalities to be thereafter created.
Therefore the purpose of the lease to defendant was not illegal or immoral, and, if he be not estopped as lessee to contest the authority of the city to make the lease, we are not prepared to hold that the contracts were ultra vires.
We do not think that there is any force in the other points, involving questions of fact, made in the application.
Rehearing refused.