*750The opinion of the court was delivered by
McEnery, J.The plaintiff, the successor of the New Orleans City Railroad Company, sued the City of New Orleans for damages for an alleged violation of contract entered into between the city and the New Orleans City Railroad Company.
The plaintiff claims that the New Orleans City Railroad Company, whose right it acquired, had the exclusive right under said contract of operating a street railway on Camp street between Pelicity and Clio stree s, and that the City of New Orleans granted the right to another company, to which the Orescent City Railroad Company is the successor, to operate a street railway on Camp street over the same territory granted to the plaintiff.
In the grant to, or a contract with plaintiff, which was for a valuable consideration, there is the following clause:
“The City of New Orleans binds herself not to grant during the period for which said franchises are sold a right of way to any other company upon the streets through which said right of way is herein sold, unless by mutual agreement between the city and the purchaser or purchasers of this franchise.” The New Orleans City Railroad Company paid a price for the sale of the exclusive privilege stated in the contract.
There was judgment against the plaintiff corporation, which has appealed.
When this privilege was sold to plaintiff’s assignor there was in existence a grant to Shelby Seymour and associates, to whose rights and privileges the Crescent City Railroad Company succeeded, and which corporation is now operating a street railway over the street to which plaintiff claims the exclusive right to operate its road.
This privilege is attacked by plaintiff as having no existence prior to its grant, having become inoperative, null and void.
The plaintiff alleges that the grant was never accepted and its conditions never complied with. The grant was accepted before a notary December 14, 1871.
The act was not signed, by the city authorities, but it was unnecessary for the city to sign the same, as she had already made the grant by a city ordinance. In 1872 a petition was filed praying for an injunction restraining Seymour and associates from building their street railway by the St. Charles Street Railway Company. In 1880 the injunction issued as prayed for, but on June 2 of the same year the suit was discontinued.
*751In November, 1879, the Oity Council, in ordinance 6192, administration series, after reciting the delays caused by litigation in the construction of said street railway, also that the Contractor was then able to undertake the construction of the same, ordered and directed the city surveyor to furnish the lines and levels for the road. The grant to the plaintiff was made October 2, 1879.
The plaintiff in setting up this exclusive privilege to operate a street railway on Camp street can not take advantage of any laches if there were any, which affected the city only, and of which it had the only right to complain. The city had never declared the grant forfeited for non-compliance with the ordinance.
It was a legal and valid grant so far as it authorized the construction of the street railway. It was in existence when the privilege to plaintiff’s assignor was granted. The city had never by ordinance declared the grant forfeited, and if it remained silent and the road was built, even “ out of time,” the city can not complain and afterward urge the forfeiture of the grant for non-compliance with the conditions. If the city is thus estopped, the plaintiff is also, and can not set up any adverse claim to the privilege granted to Seymour and associates. Railroad Company vs. Sledge, 41 An. 896.
Seymour and associates or their assignees had the right to construct the road and fulfil the conditions subsequent as long as no effort was made by the city to forfeit the grant. Mower vs. Kemp, 42 An. 1007.
The prior privilege to Seymour and associates is a complete bar to plaintiff’s action. When the grant was made to the plaintiff it had reference to, and was made under existing ordinances relating to the control and regulation of the streets over which its line of cars was to run.
But, independent of the above facts, the City Council was without power to grant the exclusive use of the streets to any person or corporation. 41 An. 561; Canal & Claiborne Street Railroad Company vs. Crescent Railroad Company, recently decided; 14 An. 842.
The City of New Orleans has permanent control of the streets, but only so far as to regulate their use. The streets are the common property of all the inhabitants of the city, and the corporation holds them in trust for their use and benefit.
The City Council is without power to sell for even a limited time an exclusive privilege to use the streets.
*752It can only regulate their use and management, which involves the exercise of the police power of the city, which is inalienable. Every inhabitant has the right to the free enjoyment and use of the streets, and may employ for his service and pleasure any mode of conveyance which he may deem necessary, subject to this police regulation. Por his convenience in going from one part of the city to another! the City Council may authorize the construction óf a street railway, which may travel the same route which he would take to his destination. It may have to cross the lines of other roads, and may for short distances be compelled, in going from one street to another, to use. their tracks. That the City Council has this power we have affirmed in the cases reported in the 41, 43 Annuals, and the recent decision in the case of Canal & Claiborne Street Railroad vs. Crescent Railroad.
In the instant case the road of the Orescent City Railroad Company occupies that portion of Camp street unoccupied by plaintiff and runs on said street a distance necessary for it to reach its destination on another street. '
It does not occupy plaintiff’s track.
The plaintiff corporation contends that the Legislature conferred upon the City of New Orleans full power to grant the exclusive use of a street for a limited time to operate a street railway.
In refering to the city charter, under which plaintiff claims the privilege, Act No. 7, Section 12, paragraphs 2 and 11 of 1870, we do not find any such power granted to the city.
The power conferred is restricted to the regulation and improvement of the streets.
The grant of the exclusive privilege claimed by plaintiff was not an act of legislation on the part of the City Council, but a contract, made without authority so far as it relates to the granting of the exclusive right to operate a street railway on Camp and other streets, and is therefore ultra vires.
If the contract was maintained it would deprive the City of New Orleans of the police regulation of the streets, a power granted to the city under the'charter of 1870.
The City of New Orleans cannot be held in damages for the breach of a contraet'made by the City Council without the authority of law, and which is ultra vires.
Judgment affirmed.