Concurring Opinion,
Miller, J.This case is here only on an exception of no cause of action. It is a suit by citizens and taxpayers assailing, as an illegal encroachment of the public right, an ordinance of the council disposing of the batture. If, in any respect, the case discloses a cause of action the case must go back. Our courts have recognized the right of action of the citizen in controversies of this nature, but, if we are to deal with the important questions discussed at the bar, it will be far better to have an appeal on the merits.
The ordinance proposed to grant to the railroad company all the batture between General Taylor and Oonstantinople streets, in front of the property owned by the companies, of which frontage we have no knowledge, for the period of ninety-nine years, to build wharves,. *554buildings, warehouses and appurtenances for the uses of the companies.
A long line of decisions has affirmed that the municipal authorities have, in respect to that space defined as between the front row of houses or property line, or Front street to the river, only the admin1 istrative function, and no power of alienation. In the charter, the measure of all power the city can exert, it is difficult to find the authority for this ordinance, dealing with this batture.
It is said the ordinance proposed no alienation. If by this is meant that the ninety-nine-year feature distinguishes it from a conveyance, it seems to me the difference is one of phraseology. That public uses are defined in the Code needs no discussion. The ordinance gives all the rights of occupancy and enjoyment for the uses of these companies that ownership can convey.
Our law makes liberal provision for the withdrawal, on the demand of the riparian owner, of such part of the batture on his front as may have become unnecessary for the public use. If the city itself is the front proprietor, it can exact the same right of withdrawal conferred on all riparian owners. This provision, it seems to me, would afford the companies the method entirely within the law of utilizing the front property and batture the ordinance states they own. Whenever batture is withdrawn enough must be left for public use. This ordinance takes all, and practically for all time. Whether accretion in the future expands this batture, or the encroachment of the river diminishes the area, the ninety-nine-year ordinance is to stand an impediment, I think, to that control of public places, apt to become requisite, conferred on the council for the public good, and with which, I think, the city can not part.
A few years since we witnessed the sale under execution as private property, of part of the public levee on which the city had authorized the erection of sheds to shelter products landed on the levee. The Supreme Court of the United States annulled the sale, announcing in its opinion that which is not at all novel to us here, that the council clothed only with the power of administration had no power of alienation of the public levee, nor had it by that ordinance undertaken to do so. The principle of that decision is pertinen in this discussion.
With the limitations given full force, on the power of the council with respect to batture, the line of my investigation has left no doubt *555on my mind of the competency of the council to give to railroads or other corporations! connected with our commerce, privileges to build and maintain wharves, elevators, docks or other constructions on the batture or extending into the river, of a character to serve the uses of commerce. Such privileges have been of constant recognition. It is not within the province of our opinion only on the exception to say more as to such privileges, their scope or as to the supervision they imply of the city authorities. I have endeavored to say briefly what the discussion here seems to invite, and thus indicate my view in general propositions as to this ordinance.
I concur in the decree which simply remands the case for trial on the merits.