Dissenting Opinion.
Breaux, J.The Louisiana Construction and Improvement Company, one of the appellants, claims to have a locus standi in court for the reason (it alleged) that it has complied with its contract as farmer of the revenues of the public wharves; that performance on its part involved the necessity of making large improvements and annually expending large amounts; that one of the covenants of the contract required the wharfage should not be charged at any of the wharves and landings improved for or by the city, and that, in consequence, the grant herein involved is illegal. In addition to this special ground the appellant company and three other taxpayers represented that the city of New Orleans unlawfully attempted to grant to the Illinois Central Railroad Company and to the Yazoo & Mississippi Valley Railroad Company for the period of ninety-nine years the public batture on the banks of the Mississippi river, between Toledano and General Taylor streets, fronting property owned by the defendant companies between these streets.
The preamble of the ordinance assailed, sets forth the purpose to extend the commerce of the port and facilitate the business of the defendants, and to that end the body of the ordinance grants permission and authority to the defendant railroad companies, to occupy for their use and purposes, the batture, for the period alleged by the plaintiffs; they (the defendants, common carriers) are also authorized to construct thereon wharves, docks, piers, bulkheads, elevators, warehouses, sheds, buildings and appurtenances at their expense, and they are required tojconform, as nearly as possible, to a stated *556standard in the construction of the wharves; the other improvements, by the terms of the ordinance, include steam locomotives and. other motive power. These are to be located upon the wharves and along the wharves on the river front between the streets before-named, with the further right of crossing intervening streets and of connecting the tracks, switches and turnouts with the track of the New Orleans Pacific Railroad Company on Water street and with the wharves, docks, elevators and buildings that the defendant company may construct upon the batture and upon their property; they are also authorized to operate a single track, with necessary switches,, sidings and turnouts from certain points designated in the ordinance.
The ordinance exempts steamships and other water craft receiving or discharging cargo at these wharves for either of the defendant companies, or with their consent, from the payment of wharfagedues. In other words, in the language of Sec. 4 of the ordinance, all water craft “receiving or discharging cargo at said wharves for-either of said railroad. companies, or any steamships, vessels or other water craft using said wharves by and with the consent of said railroad companies, shall be exempt from payment of all wharf dues; but this shall not exempt steamships, vessels or other watercraft from wharf dues for receiving or discharging cargo at or occupying any other wharf.”
The defendants pleaded several grounds of exception and the-exception of no cause of action in the alternative, which was sustained by the District Court.
I pass without comment, as it would serve no purpose in support of my conclusion, all the grounds pleaded, save those included, in the plea of no cause of action.
THE SPECIAL INJURY AVERRED BY ONE OP THE PLAINTIPPS.
First, it is insisted that the Louisiana Construction and Improvement Company, in its individual capacity, is exposed to personal, injury, which, it alleged, it sought to avert by intervening in this suit and by joining the other plaintiffs who are resident citizen taxpayers of the city of New Orleans.
This intervening company is lessee of the public wharves and landings of the city from Toledano to Piety streets (a 'distance on the river front not included in the license to the defendant railroad, companies) for the term of ten years from the date of the lease.
*557It alleges substantially that the wharf charges agreed upon between it and the city embraced a rate of charges for all wharves; those to be charged by it and those to be charged by the city, outside of the •limits of the territory included in the lease.
It also alleged that it agreed to these conditions, and subsequently expended large amounts in the construction of wharves and other improvements of the public landings, thinking (it averred) that the wharfage dues (if charged) would reimburse it for the large expenditures made.
It urged that the city has violated its contract by gratuitously allowing to the defendants a portion of the public landings above the territorial limits of its own grant.
It appears to me that the right granted to the Louisiana Construction and Improvement Company was confined by the words of the act .granting the right to the shores designated in the lease, but, conceding for the moment that the letter of the act is as extensive as it is -claimed by this company, the interpretation is impossible that would entitle the farmer of the revenues to control the rate of wharf-age of wharves not within the territorial limits covered by the lease.
The city was without the power to make such an agreement. Railroad vs. Ellerman, 105 U. S. 166-174.
But I have conceded more than the act of lease grants to the Louisiana Construction and Improvement Company. After a careful reading of the many sections of the act, I am convinced that it was not the intention of the city to transfer to this company the right to control the rate of charges at other wharves than those expressly leased. There is no express stipulation in the contract of lease regarding the city front not leased; without such a stipulation it would be difficult to conclude that the unleased portion was subjected to the same charges for wharfage without regard to the will of the municipality. In my view, the lessees did not acquire the right to control the rate of charges on the river front not leased to them.
THE CITY HAS NOT ALIENATED A PUBLIC RIGHT.
Th,e next proposition relied upon by the appellant is, that the city of New Orleans was without power to destroy or change a public servitude and deliver a portion of the shores to the dominion and control of private corporations.
*558In view of the facts I do not think this proposition can be sustained.
The city has granted a license to a corporation to use a portion of' the banks of the river. It does not hold from the city a right at all, translative of property. The dominion is not illegally affected by the ordinance assailed. The property remains the property of the-riparian owners subordinate to the servitudes imposed for public-utility.
WITHIN CONSTITUTIONAL LIMITATIONS.
Another objection urged by the plaintiff against the ordinance assailed is, that it was contrary to Arts. 45 and 56 of the Constitution-prohibiting the public authorities to “loan, pledge or grant” any property of the State or city to any person or corporation, public or private.
The word “ grant,” as employed in the article of the Constitution,, does not include a mere “permit” or “license.” They are public-works.
In lieu of wharfage dues the city elected to accept additional-facilities to commerce on the line indicated.
I do not think that the license has anything about it of the gratuitous, and that is “ the grant ” which the Constitution prohibits;, the purpose was the improvement of the port and additional facilities to public commerce.
POWERS DELEGATED TO THE CITY.
Another objection of the plaintiff is, as I interpret, that no authority was given to the city, in any case, and for any purpose, to grant a license as here granted, and that it was never intended to grant or to let any public battures, or river bank for any purpose for a period longer than ten years, nor to authorize any one to impair or destroy the right of government of the general public.
May it not be said in answer to plaintiffs’ last clause of the objection, that the city has not impaired the rights vested in third persons, or destroyed any common right, by authorizing repairs at a designated point on expressed conditions. The ordinance has only modified the use. The improvements permitted are public.
Reverting to the alleged want of delegated power in the Council' urged in the first division of the objections I am considering,, it must be taken for 'granted that no one will assert that the city *559did not have control and management of the wharves, landings and quays.
Under this grant of power the corporation may adopt such means as are required in the interest of proper control and good management. Was it not within the power granted of legitimate control and management?
In Schwartz vs. Flatboats, 14 An. 240, 244, I find an affirmative answer. The farming of markets, port dues, and other similar acts, said the court, are acts of administration. The public is the great usufructuary; the corporation is the administrator, and as such has the power to “ license” and “ permit” the use as was proposed by the ordinance assailed.
In addition to the delegated power of administration, there are special powers delegated.
The council may farm out the wharves. Why should not this power cover or include the secondary right of granting a- license?
Quod minimum sequendum eat.
Again: the city unquestionably had the power to refuse to riparian owners the right to erect wharves.
Upon this point it has been decided that a power to refuse to riparian owners the right to construct wharves included the additional power to grant the right. City of Baltimore vs. White, 2 Gill. 459.
It has even been treated or considered as one of the implied powers of a corporation.
“ In the earliest times of the colony before the passage of any ordinance upon the subject wharves were built by the proprietors of laud bounding on the sea by permission of authority of the towns.” Gray’s Reports, Vol. 3, p. 514.
Lastly on this point: “The corporation had the exclusive right to determine when and to what extent the riparian proprietors might take possession of the battare.” Remy vs. Municipality, 12 An. 500.
LIMIT OF LICENSE AND WANT OF ADVERTISEMENT.
Other grounds relied upon by plaintiffs are that the limit of the license, ninety years, and the failure to advertise the grant for sale and invite competitive bidders, affected the grant with nullity.
The riparian ownership of the shores of waters is of great antiquity *560and from the earliest period in the history of civil law that ownership has carried with it rights and privileges not enjoyed by third persons.
In the Institutes of Justinian it is announced with oracular brevity:
Preeterea quod per aluvionum agro flumen adjeeit jure gentium nobis aequiritur — i. e., whatever the river has added to your lands becomes yours.
The principle governs in matter of the banks of the river here, as it applied to the borders of the Tiber under the reign of Augustus.
But the right of the owner is subordinate to a servitude, imposed for public or common utility. C. C. 665.
In our view, however, the municipal authorities may grant to him a right or privilege on the river banks immediately in front of his lands, that they might properly deny to one who is not the owner of the adjacent lands, provided always so as not to work an injury to the public.
“The right of the General Assembly to grant the right to corporations or individuals to make and maintain wharves has been long settled.” Railroad Co. vs. Ellerman, 105 U. S. 166-174, citing, approvingly, 5 An. 661; 15 Id. 577; 22 An. 545; 6 N. Y. 523; 26 Id. 287.
In the first cited case, it is true, the State was the grantor of the right to maintain wharves to the riparian owner.
In this case the right of maintaining wharves and of controlling the public battures by legislative grant was in the city. The city is authorized to maintain wharves and control the batture.
With reference to the term of the license, if it be an issue here, I have already stated, the power the city now has of passing an ordinance authorizing the lease of the wharves covers a similar power as to a license. The city having the right to let for ten years, has the power to issue a. license at least for that length of time.
The result is that the plaintiffs show no cause of action during the ten years from the date of the license. The cause will arise if at all after that period.
For the purpose of illustrating: A riparian owner authorized by the municipality to build a wharf, or to construct other improvements beneficial to navigation in front of his property, stipulates that it shall remain under his management, subject of course to municipal supervision, for a stated number of years.
Let us assume that, as to term, the municipality has exceeded its *561powers. A number of taxpayers sue to have the constructed works removed as a nuisance and the occupant ousted.
Those suing, in so far as relates to nuisance, would find no support in Stevens vs. Walker, 15 An. 577, in which “nuisance,” in a similar case, was discussed and a principle in connection therewith announced. The limitation of time as to the grant would not be cause to oust the licensee if the municipality persists in granting the right of occupancy and of use.
But time is not an issue. We have noticed it only because it was earnestly argued for plaintiffs. Term is not of the essence or of the nature of a license. It is an incidental stipulation. C. C. 1764.
The question regarding the term has been passed upon by this court adversely to the position of plaintiffs in this case. City vs. Telephone and Telegraph Company, 40 An. 41-47.
The court declared that the grant was perpetual. This case was approvingly referred to by this court in Railroad vs. City, 46 An. 526 and 529, citing also the leading Dartmouth College case, 4 Wharton, 518.
The first cited decision supra and the opinion subsequently- affirming it are more than ample to sustain my own position, more limited in its scope and effect.
In conclusion, on this point, it does seem to me that under its powers of administration, and its other “ special ” powers, to which I before referred, a large commercial city watered by a noble river, near the sea, has the authority to permit the riparian proprietor, for a limited time, to take possession of thebatture aDd wharves for public use.
As relates to the want of advertisement and alleged failure to offer the privilege for sale by auction, the law invoked applies to the leasing or selling of the wharves and landings.
It is different in matter of this license. The city has not parted with its right to govern and to see that the license is complied with in every particular in the interest of the public.
There is here no lease or alienation of any kind, requiring a sale, under charter provision.
LIMIT OF POWER.
I do not agree with the statement or share in the apprehension gravely and forcibly expressed at the bar, substantially; if the *562-ordinance now under consideration is legal, the river front on both shores of the river, within corporate limits of the city, may be disposed of without possible restraint of any kind.
Every ordinance must be reasonable and nob inconsistent with the laws and public policy. The reverse of the proposition does not admit of argument. The license granted, we think, was both reasonable and consonant with public policy. It granted a privilege in which each, the city and the licensees, have an interest. The one in advancing the importance of its port; the other in increasing the volume of their business. Any ordinance, unreasonable and not in the public interest, as relates to public servitude, is not beyond the reach of judicial authority; such an ordinance, for instance, as would dispose of “ both shores of the river without possible restraint of any kind.”
This brings us to the question of an alleged franchise, which will, it is urged, destroy all other wharves or compel their maintenance by direct taxation. The argument at this point in the ease is directed against Sec. 4 of the ordinance copied in our opinion. The argument at the bar was chiefly directed against the “ consent” feature of the section by which the companies are authorized to permit other vessels than those receiving or discharging cargoes for them, to use their wharves.
• This additional authority may have been intended only as a complement of the license, to enable the licensees to more freely exercise the right granted. In any view there is not an actual issue before us for determination. It will be time enough to decide this issue, suggested in argument, when an actual case will be presented. It may never arise.
The objection, even if well taken, is inapplicable to the remaining portions of the sections.
If, in litigation, hereafter, it be decided that the “ consent ” feature is illegal and void, the other portions of the section would not thereby be affected.
“ It is true that a portion of an ordinance may be objectionable and the other portions may be good, and in such cases that which is good remains.” State vs. Mahner, 43 An. 496, 500.
The ordinance as a whole was attacked. I have considered it in its entirety. If in the exercise of the right granted, the licensees, in minor details, should attempt to exercise rights, illegally to the *563prejudice of other portions of the servitude on the river banks, it will be time enough to pass upon the actual case.
The following may, in a degree, illustrate and serve to suggest .additional answer to the many questions raised in opposition to the ordinance.
Let us for a moment consider a new site. Imagine a new city lying on both sides of a navigable stream, guarded and protected on •each side by a wall, with gateways at the foot of each street; with steps and inclines leading down to the river; with twenty-five gates on each side of the stream for ingress and egress, in imitation of the capital of the Orient on the Euphrates in the rich valley of that river •of old. At all the gates save one dues are charged.' At the gate •excepted highly valued commodities, in which the public have an interest, are admitted free of all charges.
It would not be in the power of a few of the inhabitants of the city to cause the gate to be closed. To charge at one gate, all the gates being free, would be an illegal discrimination against the public; but to exempt one gate, though dues are collected at all the other gates, is not a discrimination against the public, but in favor of the public.
In the same way and for similar reason, if all the wharves were •exempt from dues it would be unlawful discrimination to permit the defendant companies to charge at the wharf of which they have the use; but it is not unlawful, in my view, in a port where charges are generally collected to except a limited front for a purpose deemed .useful and public by the municipality.
The following is a summary of the points from my view of the issues:
The defendant common carriers were legally authorized to maintain a free wharf for vessels connected with their business upon condition that improvements were to be made in the interest Of •commerce and industry. The use is public, and there was no invasion of any legal or equitable right of any one.
The right of the city as regards the borders of the Mississippi Hver is a right of regulation and management, broader than exists in case an individual is authorized to regulate and manage. It does mot cover the right of alienation, but the city has not sold or leased the batture.
The funds, credit, property, or things of value of the State, Rave not been loaned, pledged or granted by the grant of a license *564to riparian owners, to modify the public use of the batture and wharves.
Under its delegated and implied powers the city has the right to pass an ordinance “ to extend the powers of the port and to facilitate the export and import business” of corporations in the service of the public.
The lieense being legal and authorized is not made necessarily void as between plaintiffs and defendants by the period of ninety-nine years for which it was granted. The licenser does not object; on the contrary, insists that it is legal.
As to the necessity, under the law of advertising and inviting bidders, that applies to the alienation or lease of property, not to a license with a grant of use to the riparian owner.
A license to common carriers for public use, at a particular point, would not warrant the issuing of other licenses without regard to reason and the necessities of commerce.
McEnery, J., concurs with Breaux, J.