dissenting. I see no reason to depart from the doctrines and conclusions contained in the opinion of this court first pronounced in this case. The joint ownership of the soil by the Heirs of Guillotte with the city, gives the former no right to interfere with the police of the market nor the regulations which the city authorities may deem it necessary from time to time to ordain, for the sale of provisions within the market. The power to establish markets and regulate the administration of the same, has boon conferred by the people and the Legislature upon the common council. It is a portion of the sovereign power delegated to them. First Municipality v. Cutting, 4 An. 336.
*820If a private person allows the city to hold a market over his soil, he must submit to such regulations as the city authorities see fit to enact. He may withdraw his property from the city, or claim an indemnity for the same, but so long as he suffers his property to be used as a market, he submits it to the authorities having1 the power to regulate, and, as a consequence, adminis.ter the market. So also as to the joint owner with the city. He may compel a partition if he chooses, but he cannot interfere with the regulations which the city may adopt for its control, management and police; nor can he prevent the city from discontinuing the market altogether, when it shall deem that the public interest requires such discontinuance. Having conceded this much as incontestible, I find myself unable to bring about a conclusion differing- from that arrived at on the former occasion.
It appears to me to follow, that the common council alone have the power to judge of the expediency of farming- the market or of placing the collection of the dues under the direction of an officer, such as the commissary of the market. They have also the power to decide upon the fitness of the person who is to exercise the functions of such office. Should it appear to them that the public interest would be better protected; that there would be better order, less extortion, and a more certain and efficient collection of the dues, by placing1 a market in a populous portion of the city under the control of an officer of the police (as they attempted to do in this instance), in my opinion they had not only the right, but it was their duty to note such regulation in the interests of public order.
Although a market may not be a locus publicus in the sense that the ownership of the soil is necessarily vested in the public, still it is a public place in this sense. It is a place to which all persons have a right to resort daily, to supply themselves with such provisions and necessaries as are there vended. And as order and cleanliness are essential to the public welfare and health, the market, which is thronged 'at certain hours with all classes of persons and filled with all manner of perishable comestibles, must, of necessity, be under the control of a vigorous and efficient police to prevent it from becoming an intolerable nuisance. It is, therefore, a public place, because it is submitted to the exclusive control and government of the city authorities. In the case of Gutting, just cited, this court said: “The right to establish markets is'a branch of the sovereign power and the right of regulating them, is necessarily a power of municipal police. See Blackstone Com. 1 vol, 214; Domat Droit Public, lib. 1, sec. 3. This is vested by positive law in the Mayor and council of each municipality, upon whom rests the responsibility of the peace, comfort and order of the assemblages collected at fixed hours at those great thoroughfares.”
I will add that markets are not established as sources of public or private profit, but for the public good.
There is but one way of judging of the exercise of the legislative power which may be conferred upon municipal corporations. It is to inquire whether they violate any principles of the Constitutions of the State and the United States, and any legislative enactments. If they do not, the ordinances of such bodies on the subjects delegated to them, have the force of supreme law, and the courts have no option but to compel obedience to the same. To control them would be to legislate for them. 7 M. R. 4, Claiborne v. Police Jury.
Looking- at the ordinance of the common council in this light, I find the de. *821fendants anxious that the joint property shall still be administered as a market, and that the common council have legislated upon a subject-matter submitted, to their control. Docs it violate any provision of the Constitution or any statute law ? I cannot find that it does.
But it is said that the defendants have tendered to the court a person who will lease the market and will give the city eleven per cent, more than was given the year previous.
Supposing the individual a suitable person to take charge of the market, and that he will be prompt and efficient, and practice no injustice or extortion, still it does not appear to mo that the resolutions in question work any injustice to the defendants.
The markets are regulated and the dues and revenues arc collected under ordinances and regulations of the city. As the farmer and lessee cannot exact more than allowed by the regulations, so it is not to be supposed that the officer charged with making the collections will receive less. If tho joint proprietor, theiefcre, receives his proportion of tho exact income of the market, there is no room for complaint. Certain it is, he does not expect the city to join in an unjust speculation to be made out of the lessee whom he tenders to take the control and the revenues of tho market.
Neither have I heard it objected that the commissary of this market, to whom the collection of the dues are intrusted by the ordinance, is wanting in integrity, or that he is not energetic and efficient.
Suppose the courts to take from the city the control of the markets, where can they find powers for their government and police ? Their powers are judicial and not legislative.
I cannot, therefore, see any .sufficient justification for a judicial interference with the common council of New Orleans in a matter by law left to their control as a legislative body to whom a portion of the sovereign power has been delegated, and whose official acts as such on all things within their jurisdiction, have the force of law.
OVERRULED OPINIOKS.
Cole, J.The parties ave joint owners of the Magazine street market, and are entitled to receive ‘their respective share of its revenues in the proportion fixed by a final judgment, signed 29th December, 1858. On the ITth of November, 1856, this court having decided that this market should be sold for the purpose of effecting a partition among the co-proprietors, the city of New Orleans did not •sell the lease thereof for the year 1857, but passed a resolution authorizing the commissary of the market to collect its revenues under existing ordinances, and to pay the same into the treasury of .the city, where an account thereof is kept.
The defendants were not satisfied with this proceeding of the council, and on the 2Sd of December, 3856, took a rule on the city to show cause, why they should not be ordered to accept a certain proposal, made by L. Ai'mmgmid, who had offered to the city council to collect the revenues of the said market-house, and to account for the same, at the rate of $15,000 per year, until the sale of the property for the purpose of partition should be made.
The District Court made the rule absolute ordering him to collect the revenues, and to pay monthly Into the hands of the City Treasurer a sum of $1,250.
He was also ordered to furnish a bond in the sum of $20,000.
3?rom this judgment the city has appealed.
The question in this case is, whether, the city of New Orleans has the exclusive control of collecting the revenues of the Magazine street market?
This must be answered in the affirmative.
The authorities of the city of New Orleans alone have, by law, the right to ordain in what places markets shall be held; they have then the right of regulating this market; of authorising therein the sale of some articles and of prohibiting that of other commodities. They can also make it a source of revenue to. the city by requiring the vendors therein to pay certain prices for the privilege of selling, and they have the right to collect the same by any one they think proper, or to farm out, for a fixed price, the right of collecting and keeping the revenues of the said market.
These prerogatives constitute a part of the police power of the city.
Appellees seem to think they have a right to a joint control of the collection of the revenues, because they and the city are joint owners of the marxet-house; their error consists in mingling the right of property in the market-house, with the right to the market therein held. The market-house *822and the market therein held are distinct; the former may be joint property, but the latter is created by the city, the vendors therein derive their right from the city, and it alone can ordain how much they shall pay for the privilege of selling and collect the revenues for the same. Although, then, the parties are joint owners of the property, and entitled to a partition of revenues in due time, according to their respective shares, yet they are not joint owners of the right to give authority to sell in. the market-house, to regulate the price, or to collect the revenues. It is not a valid reason to take from the city its xmlice power, because it may in error have built a market-house on private property.
It authority to constitute a market exists alone in the city, then the prerogative of fixing prices for the privilege of selling therein, and of collecting the revenues thereof, is vested solely in its authorities. Vide First Municipality v. Cutting, 4 An. 336; Act amending Act to incorporate the city of New Orleans, approved March 14th, 1816; Bullard and Curry, p. 101, 1st sec.
It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed; and proceeding to render such judgment as ought to have been rendered by the lower court, it is ordered, adjudged and decreed, that the rule taken in this case by defendants, be discharged with costs in both courts.