dissenting. The opinion of my associates in this case is, according to my understanding, so diametrically opposed to the jurisprudence of this State, and most of the other States of this Union, that I am compelled to dissent from it.
The question involved in this case is simply whether or not the Legislature can control the public quay or levee of the city of New *525Orleans without the consent of the city. To show that this is the question for decision, I quote from the brief of the counsel for the city:
“BATTURE ABOVE CANAL STREET.
“The King of France, prior to the year 1763, granted to the Order of Jesuits, for a plantation, certain property lying on the Mississippi river, above Canal street, having thirty-two'arpents front on the Mississippi, and running back to a depth of about fifty arpents; and for the same purpose he granted to various other persons property lying above the aforesaid thirty-two arpents. In 1763, the Jesuit plantation was confiscated by the French government, divided and sold. The first subdivision above Canal street, thus sold, contained, say seven arpents, face cm fieme; and five other subdivisions of five arpents each were sold in like manner. One Bertrand Gravier acquired the first subdivision about 1788; the second, lying immediately above Gravier, was acquired by Delord Sarpy, the dividing line between the Gravier and Delord Sarpy claims being now designated by Delord street. Gravier, in 1788, divided his property into squares and lots, and annexed them to the city as suburb Ste. Marie. Sarpy converted his property from rural into urban in 1806. At that time the ‘big road,’ now Tchoupitonlas street, formed the division between the lots of ground and the batture in front thereof, which was then used by the public as a loeus publicas.
“Edward Livingston and others, claiming, as riparian proprietors, to be the owners of the entire alluvion or batture in front of the aforesaid suburb of Ste. Marie, and the accretion to become attached to the same, by a certain act between themselves and the city of New Orleans, bearing date on or about the twentieth day of September, 1820, dedicated the aforesaid batture and future accretion to public use, and to the purposes of business and commerce, and upon the express understanding and condition that the same should thereafter remain and continue a loeus pubUeus, out of commerce, and not affected by any adverse claim or grant which might be set up.
“Under, and from the time of the dedication above referred to, that portion of the batture on and over which the New Orleans, Mobile and Chattanooga Railroad Company claim to construct their buildings and to run their road, with certain exceptions, which will be shown hereafter, remained open for use as a public place, until the rights of the public to the same were interfered with by the said company.
“ BATTURE BELOW CANAL STREET.
“ On the sixth day of September, 1717, a charter was granted by the King of France to a corporation styled the “ Western Company and under the auspices of that company, the ground where the old city of *526New Orleans now stands, was selected, as a place for the principal settlement of the province, and the foundation of the city was laid. Iu 1724 and 1728, all the batture lying in front of the, old city of New Orleans was laid off as a quay ; and thus and otherwise, was dedicated as a locus publicáis, and as common property, to the use of which, all of' Jhe inhabitants of the city of New Orleans, and even strangers, became entitled.
“elysian fields street.
“ All that portion of ground or real estate claimed by the plaintiff, and over which they seek to run their road, extending from the point of intersection of the batture lying in front of the old city of New Orleans, with Elysian Fields street, back to the point where the last mentioned street intersects with Claiborne street was dedicated by private individuals, by ordinances of the said city of New Orleans, and otherwise, as parts of a public street or highway, and for the convenience and use of inhabitants of the said city and others; and the same has been possessed, used and enjoyed, as a street highway or public place, for more than thirty years before the commencement of the present suit.”
The interference of the New Orleans, Mobile and Chattanooga Railroad Company complained of was authorized by an act of the General Assembly of Louisiana, which act the defendant alleges is unconstitutional because it divests vested rights, and authorizes the taking of private property without just compensation. It is manifest, therefore, if the General Assembly has the right to control the use of this public place, nay, even to change its destination, the interference of this company is not unlawful. As early as 1848 this court held, in Delabigarre v. The Second Municipality of New Orleans, that “ the sovereign alone has the right to change the destination of public places. Under the state of facts presented by the record, the attempt of the defendants to change the destination of the ground was a glaring usurpation of power, from which no legal effects could result.” The usurpation spoken of in that case was the passage of a resolution by the municipality ordering a portion of the batture to be sold.
In Parish v. Municipality et al.; this court said : “ We have already stated that-the conditions appended to the nominal gift of the batture amounted to a dedication of it to the public, to be used as an open space, and had no other object. The defendants might, for purposes of public utility, thus deprive the city of the right of alienating the batture, or of erecting buildings upon it. But, as we held in the case of the State of Louisiana v. The Executors of McDonogh et al., such a stipulation was at all times under the control of the Legislature, who could modify the effects of it and change the destination of the property, whenever such a change became of public advantage. Its power - *527to change the destination of it was expressly recognized by us in the case of Delabigarre v. Second Municipality, 3 An. 330. The power of the Legislature to change the destination of public places had been previously recognized in the ease of De Armas v. The Mayor et als., 5 La. 174 and 194; the Mayor et als. v. Hopkins, 13 La. 351; New Orleans v. United States, 10 Peters 733 ; Municipality No. 2 v. New Orleans Cotton Press, 18 La. 122. These cases were nil argued by the ablest counsel at the bar, and the opinions of the court were prepared with uncommon care. In two of them, Judge Martin dissented on other-points, but the court was, in all the cases, unanimous in recognizing the power of the Legislature to change the des'ination of the quay and of the batture iu front of the citv of New Orleans.
“After so many solemn adjudications the defendants do not appear-to have had any serious claims which they could compromise. So that, while the act of 1820 was a compromise, under the form of a donation, the act, executed in 1851, would seem to be a donation, under the form of a compromise. The plaintiffs acquired no rights under that act, the gift not being intended for them. The act passed by the Legislature in 1850 has been adduced by the defendants in support of some undefined right. It is our duty to give full effect to that act, so far as it changes the destination of a portion of the batture and authorizes the sale of it. But we deem it also our duty to disregard, as an assumption of judicial power unauthorized by the constitution, whatever in it may be considered as recognizing in the defendants any legal rights under the compromise, after the change of destination of the property.” 8 An. 149.
What is this batture, levee or locus publicus, upon which the defendant has built its railroad tracks and depots, under the authorization of the Legislature? It is a-public place, which combines the public purposes of a landing for steamboats and vessels, a place for the temporary deposit and keeping of goods, a place for the arrival and departure of travelers and their baggage, and a public highway for vehicles employed principally in the transportation of articles of commerce. It is a public thing, according to the definition of the Code. “ Common property, to the use of which all the inhabitants of a city or other place, even strangers, are entitled in common, such as streets, the public walks, the quays.” C. C 458. Wherever the public is concerned, the State is not without an interest, and may consequently legislate upon the subject. In this case, however, the Legislature has not changed the destination of the property, and the grants or privileges conferred upon the railroad company are for the convenience and benefit of the public. The testimony of witnesses has been referred to to show that the use of the batture by the railroad company will be in*528jurious to the commerce of this city. In my judgment, this testimony only proves that the witnesses are about a quarter of a century behind, the age in which they live.
The defendant is a municipal corporation, which is defined to be “an investing the people of a place with a local government thereof.” Such corporations are created and exist for the public advantage; they can exercise only such powers as are conferred upon them by the Legislature, which may be withdrawn from them by the Legislature at will, unless restrained by the constitution. There is no restraint'on this power of the Legislature in the constitution of this State. The Legislature might take away the right of the city to legislate in any manner in regard to this batture. In the Fifth Annual our predecessors said: “The government of cities and towns, like that ot the police juries of parishes, forms one of the subdivisions of the internal administration of the State, and is absolutely under the control of the Legislative.” 661. Judge Dillon, in his work on municipal corporations, says : “With the exception of certain constitutional limitations, presently to be noticed, the power of the legislature over such corporations is supreme and transcendent; it may change, divide, and even abolish, at pleasure, as it deems the public good require.” Page 70 et seq.j 3 Wend. 1325; Cooley on Constitutional Limitations, p. 191-2; 14 An. 406; 12 An. 515.
Municipal corporations are mere instruments or agents of the State government; consequently, if the city of New Orleans had actually purchased the batture it could npt control it as a private individual could his property. “ Being a mere agency of the government, it is evident that the municipality can not itself have that complete and absolute control and power of disposition of its property, which is possessed by individuals over their own. For it can hold and own property only for corporate purposes, and these purposes are liable at any time to be so modified by legislation as to render the property no longer available.” Cooley C. L. p. 235.
At page 88 of-his work Judge Dillon says: “The Legislature, as trustee for the general public, has full control over the public property and the subordinate rights of municipal corporations. Accordingly it may authorize a railroad company to occupy the streets in a city without its consent and without payment. See Clinton v. Railroad Company, 24 Iowa 455 ; People v. Kerr, 27 N. Y. 188; Railroad Company v. Applegate, 8 Dana 289; Wager v. Railroad Company, 25 N. Y. 526, 533; Pratzman v. Railroad Company, 9 Ind. 467; 13 Ind. 353, 551; Moses v. Railroad Company, 21 Ill. 522; Cooley on Con. Lim. 555, 556; 17 N. J. Eq. 75; 17 Barb. 494; 47 Pa. State 325, 35 Cal. 325. See also Redfield on Railways, page 259 vol. I. He says: “ The fee of the streets of a *529city, when it lias been acquired by the municipality under the right of eminent domain, becomes a public trust for general public purposes, and is under the unqualified control of the Legislature; and any legislative appropriation of id to a public use, is not to be regarded as the appropriation of private property so as to require compensation to the city or municipality to render it constitutional.”
I think the judgment of the district court should be affirmed.