SPELLMAN V. O'I'1'Y 0.1" NgW ORLEANS.
S. 258. as the underJhe contract, and still, holds, 15,000 shares of the complainant's stock. " , , The injunction may continue until further action of the coMtin the wrms of the order; but with an express reservation of the graphophones. '
R. CO.tI. SAME.
Cowrt,E. D. Lo,Uiriana.ll'ebruary 5, 11;191.)
.A city ordinance, prohibiting aoy ratIroad:company from allowing the sale of fruit, vegetables, or perisha,ble,freighJ; arriving in the city over its lines from cars on the tracks, from any platform, Ilhed, or building lj.tthe depot on the grounds of the complj.ny, is, where the merchandise dected largely comes from other states an interference, with and, if not based on coBsiderations of pUblio health, or intended to prevent the crowding and obstruction of streets and Pllblio places, but solely to hinder competition between non-resident shippers andresidenJ; licensed dealers in the same line, it is unconstitutional and void,
In Equity. Bill for injunction. W. W. BUW6, for complainant Spellman. Girault Farrar, for complainant railroad. F. B. Lee, for city of New Orleans. Before PARDEE and BILLINGS, 1J.
PER CURIAM. The submission is upon applications for injunctions pendente lite. These suits are brought-the one by the receiver of a railroad company, and, the other, by the railroad company itself-to enjoin the city from enforcing, at the depots and grounds of the complainants, the following ordinance:
fruit, vegetables, produce, 01' merchandise from cars, platforms, sheds. warehouses, grounds, or other property owned or controlled by any rail·' road company or companies in the city of New Orleans. ' "Section 1. Be it ordained by the council of the city of New Orleans that ordinance No. 4090, C. S., adopted November 5th, 1889, be amended and reo enacted so as to read: · That it Shall be unlawful for any railroad company or companies in the city of New Orleans to allow the sale of fruit, vegetables. market produce, perishable or merchandise, except pears, peaches, berries, and melons, arriving over their line in the city of New Orleans, froJ». cars on the tracks, from any platform, shed, or building at the dopot OJ l,iepots, on the grounds Or other pl'operty owned or controlled by such railroad company or companies in the city of New Orleaos. '" "Sec. 4. Bejtfurther ordained that the prOVisions of this shaH apply Iikewl.se to the levee and steam-boat lanl1ings of this city, except iuthe, ease of fruits just' arriving from tropical cotl0tries, on vessels plying to this
"No. 4891, COUNOIL SERIES. " An ordinance amending ordinance 4090, C. S., to prohibit the peddling Ci(
port. In that case the fruit may be sold at the ship's side, but within fortyeight hours after the arrival' of the steamer conveying the same."
. The bills aver that the commerce interfered with is interstate, and that the common council have no authority from the charter to pass it, and that it is unreasonable, unequal, and unjust. We do not think it necessary to consider the question of authority under the charter. First, is it an interference with interstate commerce? and, 8ecandly, is it such a regulation as is reasonable? i. e., is it requisite for any municipal purpose? ',l'he showing is that the vegetables and merchandise affected largely come in from other states. We think usage and public convenience require that common carriers should receive goods for carriage consigned to order, and should deliver the goods so shipped according to the orders of the shipper; that such a delivery is ordinarily undertaken by the carrier, and may be demanded by the shipper; and that to take it out of the things permitted in the transportation of goods from point to point would deprive commerce of an incident and auxiliary so necessary as to be a part of it. The right to bring in implies the right to sell. Chief Justice MARSHALL, in Brown v. Maryland, 12 Wheat. 446, 447, where the question was one as to the relation of foreign commerce, says: "Commerce is intercourse. One of its most ordinary ingredients is traffic. It is inconceivable that the power to authorize this traffic, when given in the most comprehensive terms, with the intent that its efficacy should be complete. should cease at the point wben its continuance is indispensable to its value. To what purpose should the power to allow importation be given, unaccompanied wilh the power to authorize a sale of the thing imported? Sale is the object of importation. and is an essential ingredient of that intercourse, of which importation constitutes a patt. It is as essential an ingredient, as indispensable to the existence of the entirething, then, as importation itself. It niust be considered as acomponent part of the power to regulate ChiefJustice FUJ,LER, in LeiBy v. Hard1:n, where the attempted limitation was 'upon interstate commerce, (135 U. S., at page 123,10 Sup. Ct. Rep. 689,)'says: "But whenever the law of the state amounts essentially to a regulation of commerce with foreign nations or among the states, as it does when it inhibits, directly or inditectly, thereceipt of an importedoommodity, or its disposition before it has ceased to become an article of trade between one state and another, or another country and this, it. comes in conflict with a power Which, inthia particular, ,has been exclusively vested in the general government, and is therefore void." The ordinance is, then, a regulation of commerce. This brings us to the question, is it one of thOse rules which the municipal government may, nevertheless, make? An analysis of the ordinance Shows that it has nothing to do with the public health, for it controls. sales made even before the arrival of the article sold; it has nothing to do with the prevention of crowds upon the streets, where the cars of delivery might' be located,for it operates upon the most quiet sale, in places deserted as well as crowded, with l)Ossibly only buyer and seHer present; nor 'rith the obstruction of the. by leaving cars.
PAC. RY. CO. V. INTERSTATE. TRANS. CO.
standing on the tracks and crossings for delivery purposes, for no such obstruction is hindered by the ordinance. The title is against but not one word is there in the ordinance against itinerant sellers, or vending from place to place. In short, the ordinance is not in aid of the prevention of any public harm or the promotion of any public good, but, on the contrary, is alike to the restriction of the rights of the importer, as usually recognized, and the inconvenience of the citizens; and, as was practically admitted on the hearing, seems to have no other pose than to hinder competition between non-resident shippers and dealers in certain perishable articles and the resident licensed dealers in the same line.. Our conclusion,. therefore, is that the ordinance is a regulation of commerce; and, not being in aid of any of the objects properly intrusted to the municipal government, falls within the class of unrea.sonable ordinances. See Horr & B. Mun..Ord. §§ 131, 132, and cases there cited. ). The injunction pendente lite is granted.
'II. INTERSTATE TRANS.
(Oircuit Oourt, ]il. D. Louisiana. . January 16,1891.)
rily impair the usefulness of the river to the public, but is required to construct a. draw in any bridge over a naVigable stream, an injunction will not be granted tQ prohibita water transpo.rtation company from taking its tow-boats through the draw at high water with more than two barges in tow, in the absence of more spe-: cillc legislative 'authority, unless it first be made to appear in proceedings at law, where the defendant c.an. have a trial by juryl that the bridge with its draw as now constructed does not "unnecessarily impBll"" the public convenience of the river. .
I 7, subd; 6) to erect a bridge ofer any river, prOVided that it does not
W ATIlR-BBIDGllI-INroNCTlON. Where a railroad company is authorized by its charter (Act La. 1876, No. 14, p. 81,
In. :Equity. Bill fodnjunction. W. W. Howe, for complaimmt. J. P. Hornor, for defendant.
BILLINGS, J. This cause has been heard on a demurrer. The com.. plflinant, under the permission given by the legislature of Louisiana,' (Acts 1876, No. 14, p. 31, § 7, subd. 6,) has erected a bridge over the Atchafalaya river, as part of its railway bed. It is contended by the that the Atchafalaya river is wholly within the state of Louisi... aua,and that it was competent for the legislature of that state to give permission, so all question as to the authority of the state legislature is taken out of this case. The act of the legislature is a part of the com.pill. Theaet .is a general one,· authorizing the complainant to maintain itaroad over any river, and provided it does not unnecessarily impair the usefulness and convenien,ce of the river to the p.ublic, and