
    (102 So. 422)
    No. 26253.
    McNEELY v. TOWN OF VIDALIA.
    (March 8, 1924.
    On Rehearing, Dec. 1, 1924.)
    
      (Syllabus by Editorial Staff.)
    
    I. Municipal corporations <©=3591— Provision in franchise for fixing rates by arbitration or agreement void; "monopoly.”
    Provision, in town’s grant of ferry franchise, that rates not fixed therein shall be fixed by agreement or arbitration, is ultra vires and void; a ferry being, by provision of Act No. 68 of 1896, a “monopoly,” and fixing of such rates being, therefore, a legislative function; and so-not a matter of arbitration, or of agreement to agree, which is a nullity.
    [Ed. Note. — For' other definitions, see Words and Phrase's, First and Second Series, Monopoly.]
    2. Ferries <@=3I — When under control of municipalities, rates, not fixed by franchise, subject to regulation by municipal authorities.
    Rev. St. § 2743, par. 9, as amended by Act No. 202 of 1902, empowering police juries of parishes to establish ferries and fix rates thereof except “ferries * * * within the control of municipal corporations,” contemplates that the latter ferries shall be subject to the- regulation of the governing authorities of such municipalities as to rates not established by the franchise.
    3. Ferries <@=31 — Relative to fixing rates of ferry, not fixed by franchise, a town held to have control of it.
    Relative to fixing rates of a ferry not fixed by its franchise, the town within which is its landing, and which was incorporated under Act No. 13.6 of 1898, has under section 15, par. 32, control of it.
    4. Ferries <@=31 — Right of town to fix rates comes from police power.
    Any right of an incorporated town to fix rates for public service of a ferry comes from the police power, which may be granted by necessary implication.
    5. Constitutional law <@=70(l) — Fixing rates for public service, legislative function.
    Fixing of rates for public service is a legislative function.
    6. Ferries <@=31 — Notice not necessary to fixing rates.
    Citation to or .summons of or hearing with owner of a public franchise is not necessary to the exercise of the legislative power of fixing rates for the service.
    7. Constitutional law <@=318 — Opportunity to be heard against enforcing rates fixed for public service enough for due process.
    It is enough to constitute due process of law that owner of a public franchise is given opportunity to be heard when it is attempted to enforce rates fixed without notice to him.
    8. Constitutional law <@=48 — All legislation presumed valid and fair.
    The presumption is that all legislation is valid and fair.
    9. Ferries <@=31 — Owner has burden of showing rates fixed by town council unfair.
    Owner of ferry has burden of showing by fairly reasonable preponderance of evidence that the rate for service fixed by town council was not fair.
    10. Ferries <@=31 — Evidence insufficient to show unfairness of rates fixed by town council.
    Evidence in injunction suit based on claim of rates fixed by town council being unfair held insufficient as to receipts, expenses, and investment.
    On Rehearing.
    11. Commerce <@=10 — Till Congress acts, state can fix rates for interstate ferry.
    Though a ferry be an interstate transportation facility, till Congress and the Interstate Commerce Commission see fit to act, the state can prescribe rates.
    Land and Overton, JJ., dissenting.
    Appeal from Tenth. Judicial District Court, Parish of Concordia; N. M. Calhoun, Judge.
    Injunction suit by S. B. McNeely against town of Yidalia. Judgment for plaintiff, and defendant appeals.
    Reversed, with directions.
    Philip Hough and G. P. Bullís, both of Yidalia, for appellant.
    Hugh Tullís and Dale, Young & Dale, all •of Yidalia (Ratcliff & Kennedy, of Natchez, Miss., of counsel), for appellee.
    By the WHOLE COURT.
   ST. PAUL, J.

In 1902 the town of Vidalia granted to plaintiff a franchise for a ferry across the Mississippi river, to run for 20 years from March, 1906. The rates were fixed on most articles, but not on automobiles which had not then come into general use. It was provided, however, that rates not fixed in the grant should be fixed by agreement, otherwise by arbitration. Some ten years ago the plaintiff fixed rates on automobiles, satisfactorily to himself and acquiesced in (?) by the public (since there was nothing else for the public to do). In February, 1923, the town council attempted to fix compulsory rates on automobiles (leaving the franchise, otherwise intact), and plaintiff enjoined on numerous grounds, all of which resolve themselves finally into these four: (1) That the contract was violated, (2) that the town council was not a rate-making body, (3) that the rates were fixed without a hearing, and (4) that they are unreasonable.

The trial judge perpetuated the injunction on the third ground, and defendant appeals.

I.

It is wholly unnecessary in this case to enter into any discussion whether a munici-' pal corporation can enter an inviolable contract with a public service corporation as to the rates at which Such service shall be furnished to the public; whether such a contract is an alienation or abridgement of the police power, or a mere exercise thereof; whether the presence or absence from a state Constitution of a prohibition against an abridgment of the police power alters the situation in'any way — as to all of which the authorities are not free from' confusion. Suffice it to say that in this case the town council is not seeking to alter the contract except in so far as the same provides that as to rates not fixed in the franchise they shall be fixed by agreement or arbitration.

And as to that we are satisfied that the action of the town -council was ultra vires and void. For whether such rates be fixed by contract or otherwise, they are manifestly compulsory so far as they affect the public, who must either pay the rates fixed or go without. And since public utilities are for all practical purposes public necessities, and virtual monopolies, it follows that the rate fixed for such necessities are-in effect a tax upon the public for such public service. In this state a ferry is made a monopoly by law. Act 68 of 1896, p. 101.

The fixing of such rates is therefore essentially a legislative function; and being such it cannot be made a matter of arbitration, since to make it such is simply to delegate to arbitrators the power to fix such rates; and this cannot be done.

. “Municipal councils, or other functionaries of government, cannot renounce the powers vested in them by the Constitution and laws. An ordinance of a municipality which makes even a partial surrender of political power is null.” Third Municipality v. Ursuline Nuns, 2 La. Ann. 611.

On the other hand, an agreement to agree is no agreement at all, since either party may avoid it by mere failure to agree.

Since the agreement to agree was vain, and the agreement to arbitrate was void, it follows that either plaintiff might charge what he pleased upon automobiles transported over his monopoly, or that the town council had the right to fix the rates; for there was in 1902 no public service commissions authorized to fix ferry rates.

And it would seem that the question whether plaintiff or the town council had the power to fix the rates ought to answer itself, since an unbridled monopoly of a public necessity would be an anomaly under a free, not to say a civilized, government.

li-

Under paragraph 9 of section 2743, Revised Statutes of 1870, amended by Act 202 of 1902, p. S9Í, the police juries of the several parishes have the right of establishing ferries and of “fixing the rates of ferriage”, thereon. This power, however, “shall not extend * * * to any ferries * * * within the control of municipal corporations.”

From this it follows either that ferries within the control of municipal corporations shall be subject to no control whatever as! to the rates which they might charge for fer- . riage, or that such rates are subject to the control of the municipalities.

But can it be supposed for a moment that the Legislature meant to provide that ferriage tolls should be subject to regulation in the sparsely settled rural communities, but not subject to regulation in populous urban communities ; that our solons were straining at gnats and swallowing camels?

Hence it cannot but be that the right to establish a ferry (meaning thereby an exclusive privilege) carries with it necessarily the right to fix the rates.

But if the right to fix the rate exists in the municipality, how is that right to be exercised. The answer may be, “By contract.” Granted; but where is the law or the logic, which says that such power to fix rates shall be exercised only by contract? If there be any such, the writer hereof is unable to discover it. For although the power to contract for rates for itself does result from the inherent power of a municipality to make contracts, yet it is perfectly obvious that the fight to fix rates for its inhabitants is derived not from the right to make contracts, but from the police power.

And again what is to be done when the contract grants a franchise, but fails to provide (as in this case) for a tariff covering articles known or unknown at the time of the contract? Is the municipality powerless to fix such tariff unless with the consent of the grantee, which is the same thing as to say that the grantee may charge what he pleases? That is precisely what the grantee claims (in effect) in the case at bar. He has established his own tariff; if the town agrees, it is very well; if the town does not agree, it is equally as well, since he goes on collecting such tariff just the same as if the town had agreed. As to the matter of arbitration, we have already disposed of that.

Our conclusion is that ferries under the control of municipalities are subject to regulation by the governing authorities of such municipalities'as to all rates and tariffs not-established by the franchise itself. Whether or not the rates established by the franchise may be changed without the consent of the grantee is a matter we are not called upon to determine in this case, and we therefore refrain from expressing any opinion thereon.

The town of Vidalia is incorporated under the “Lawrason Act,” No. 136 of 1898, and under paragraph 32 of section 15 of that act the town had power “to license ferries and to regulate the same and the landing thereof within the corporate limits.” It has therefore control over plaintiff’s ferry, and may fix all such rates (at least) as are not fixed in the franchise.

To sum up the whole: The right (if any) of a municipal corporation to fix the rates for a public service rendered to its inhabitants does not come from the inherent power to contract, but from the police power; such grant of police power may be express or may result from necessary implication; it is necessarily implied when the municipality has the power to grant directly or indirectly an exclusive franchise for such public service; and whether the rates fixed at the time of granting such franchise be or be not a contract, the right to fix by compulsion rates not fixed by franchise necessarily resides with the municipality and not with the grantee.

III.

We have already said, and we repeat, that the fixing of rates for public service is a legislative function. See Vicksburg S. & P. R. Co. v. Railroad Commission, 153 La. 983, 96 So. 832.

Legislative bodies, however, proceed in their own initiative. They are not like courts, which can proceed only when urged thereto by some party in interest. There is no such thing as citation, or summons, required to enable a legislative body to proceed with its business. It proceeds upon such evidence as it thinks sufficient, and obtains such evidence in the manner it deems proper; no formal pleadings are necessary or even permitted ; it is not handicapped in its search for the truth by the formalities required in a court of law. Nevertheless the results obtained by legislative bodies are not appreciably any more unfair than the results obtained by courts.

Be that as it may, a legislative body is not required to give parties, who may be affected by its action, the formal hearing required in a court of law. If it were, there would, of course, be an end to all legislation, for who is not affected by the least legislative action; and the whole community cannot be cited or summoned to show cause why this or that legislation should not be had.

Hence it suffices, to constitute due process of law, that parties affected by legislation should be given an opportunity to be heard when it is attempted to execute the provisions enacted by the legislator. Until then they cannot be hurt.

In the case at bar the plaintiff has been given his opportunity to* urge before the courts the objections which he might have urged before the town council; and has been duly heard thereon, which is all that he is entitled to.

His objections have all been considered and disposed of. All except one, to wit, that the rate fixed by the ordinance does not allow him a fair return upon his investment; and that objection we will now proceed to consider.

IV.

The presumption is that all legislation is valid and fair, and whoever alleges the contrary assumes the burden of establishing his charge. Hence it follows that plaintiff in this case must show by á fairly reasonable preponderance of evidence that the rate fixed by the town council is not a fair one. And our conclusion is that he has failed in his proof.

Three of the judges of this court have read the transcript herein, and our conclusion is that plaintiff has not made a full and fair exposition of the receipts and expenses of operating his ferry; the receipts claimed by him do not correspond at all with a close check kept upon his business by an agent for defendant during the six weeks before this case came up for trial; and from the start plaintiff has made every effort to exclude defendant from any opportunity to get at his receipts and expenditures. It is also apparent that plaintiff is consuming the greater part of those receipts whatever they may be, in high salaries for himself and his sons, which the testimony fails to convince us as being necessary for the proper conduct of the ferry.

Moreover, his estimate of the capital invested in the enterprise is so grossly exaggerated as to furnish not the least basis on which to predicate what would be a fair return. One instance only will suffice. He estimates his ferryboat at $130,000, but apart from his own vague testimony in support of this estimate, he produces no other testimony than that two alleged experts, one of whom makes an admitted error of nearly $80,000 in calculating ■ the value of the steel required for the hull; and had already estimated a better ferryboat in New Orleans for less than one-half the value of plaintiff’s. The other bases his estimate upon the value of another vessel to which he compares it, which latter vessel is shown to be several times larger than plaintiff’s. On the other hand, a witness for defendant, at least as well qualified as plaintiff’s witnesses, testified that he was then building a larger and better boat than plaintiff’s for about $28,000.

On the whole, we are satisfied that plaintiff has wholly failed to make out his case. And in this connection it may he remarked that whenever a litigant seeks the intervention of a court in a matter such as this, he ought to bring forward a clear and succinct statement of his receipts and expenses, and of the amount and value of his investments. In the state of the record before us, we cannot reach even the faintest clue as to what plaintiff’s receipts and expenses and investment may be; but we are convinced that he has grossly exaggerated the amount of his investment, and are not satisfied that he has made a correct return of his receipts, or that the expenses claimed by him are .justified.

We must therefore reject his claim for want of proper evidence to support it; but we see no grounds for allowing attorney’s fees.- ■

Decree.

The judgment appealed .from is therefore reversed; and it is now ordered that the injunction herein issued be dissolved, and plaintiff’s demand rejected at his cost in both courts.

OVERTON, X, dissents.

LAND, X, dissents and hands down reasons.

LAND, X

(dissenting). It is stated in the opinion handed down by the majority that—

. “The right (if any) of a municipal corporation to fix the rates for public service rendered -to its inhabitants does not come from the inherent power to contract, but from the police power; such grant of police power may be express or may result from necessary implication; it is necessarily implied when the municipality has the power to grant directly or indirectly an exclusive franchise for such public service; and whether the rates fixed at the time of granting such franchise be or be not a contract, the right to fix by compulsion rates not fixed by franchise necessarily resides in the municipality and not with the grantee.”

The opinion cites no authority to sustain the proposition of law which it announces. In the case of City of Shreveport v. Southwestern Gas & Electric Co., 151 La. 864, 92 So. 365, a clear distinction between the fight of a municipality to fix rates by contract and the right to impose rates by compulsion is made, and it is expressly held that a city fixing rates by contract acts subject.to the right of the Legislature to change the rates when the public interest requires, and while the contract is binding on the city, it is not binding upon the Legislature.

It is also distinctly held in that case that the power to fix compulsory rates and charges must be delegated to a municipality in clear and unmistakable terms, and that any fair and reasonable doubt concerning the existence of the power is to be resolved against the corporation and the power denied.

The reason for this holding is that the power compulsorily to fix rates is a high attribute of sovereignty, not particularly needed by municipalities for properly functioning, and not usually delegated to them, and therefore cannot result from implication. 28 Cyc. 265; 19 R. C. L. 768. The decision in the case of the City of Shreveport v. Southwestern Gas & Electric Co. is based upon City of Scranton v. Public Service Commission, 268 Pa. 192, 110 A. 775, and Woodburn v. Public Service Commission, 82 Or. 127, 161 P. 391, L. R. A. 1917C, 98, Ann. Cas. 1917E, 996, and the authorities therein cited.

The Supreme Court of Oregon said in the Woodburn Case:

“The right of the state to regulate rates by compulsion is a police power, and must not be confused with the right of a city to exercise its contractual power to agree with a pubUc service company upon the terms of a franchise. The exercise of a power to fix rates by agreement does not include or embrace any poi'tion of the power to fix rates by compulsion. When Woodburn granted the franchise to the telephone company, the city exercised its ‘municipal right to contract, and it may be assumed that .the franchise was valid and binding upon both parties until such time as the state chose to speak; but the city entered into the contract subject to the reserved right of the state to employ its police power and compel a change of rates, and when the state did speak, the municipal power gave way to the sovereign power of the state.” (Italics mine.)

The decisions of the Supreme Court of the United States are to the same effect. City of Winchester v. Winchester Waterworks Co., 251 U. S. 192, 40 S. C. 123, 64 L. Ed. 227; Los Angeles Telephone Case, 211 U. S. 265, 29 S. C. 50, 53 L. Ed. 179.

The only power conferred upon the town of Vidalia under its charter is “to license ferries and to regulate the same and the landing thereof within the corporate limits.” The power thus delegated goes no further than to authorize the making of contracts granting ferry franchises and to regulate by agreement the rates to be charged by the grantees. Not a word can be found in the authority thus conferred upon the town of Vidalia to justify the grant of any exclusive ferry franchise, or to fix any rate, compulsorily and independently of that consented to by the contracting parties.

The decision of the majority in this case virtually destitutes the state of its sovereignty as to the right of compulsory rate making, a police power inherent in the state, by holding that such power can be surrendered to a municipality by mere implication.

Under such a holding, every town, city, and parish in the state, by virtue of the provisions of section 7 of article 6 of the Constitution of 1921, is removed from the control of the' Public Service Commission, because of the powers of “regulation” by implication vested in them at the date of the adoption of the present Constitution. As rates fixed by a municipality in a contract granting a franchise are binding on a city, but not on the Legislature, the moment the power of control by the Legislature over such rates is removed, at that very moment the franchise contract becomes inviolable, as far as a city is concerned, both as to the franchise and as to the rates themselves. The inherent right of thé state as sovereign, to act under its paramount police power, and to change the rates fixed in franchise contracts, and, in lieu thereof, to impose reasonable and just rates by compulsion, cannot be surrendered irrevocably by implication or expressly.

Under this decision, if rates for gas, light, water, street car service, etc., as established in franchises already existing, or hereafter granted, are unreasonable and unjust to the public, they must remain so, as the contract granting the franchise and fixing the rate becomes inviolable in all respects.

On the other hand, if such rates are not reasonable and just to the public service corporation, it is at liberty to resort to the federal courts and obtain relief, on the ground that it is not receiving a fair return on its .investment.

If contracts fixing franchise rates are inviolable, as to such rates, how can the obligation of such contracts be impaired by any municipality surrendering its “powers of supervision, regulation, and control,” to the Public Service Commission by the vote of a majority of the qualified electors cast at an election held for that purpose, under the provisions of section 7 of article 6 of the present Constitution?

But such contracts are not inviolable. In the case of State v. City of New Orleans, 151 La. 30, 31, 91 So. 535, this court said:

“The rate-making authority over public utilities is an attribute of sovereignty, inherent in the state, as an element of her police power. It has been decided, in those states where, as in Louisiana, the Constitution forbids an abridgment of the police power of the state, particularly in Missouri, South Dakota, California, Pennsylvania, Montana and Mississippi, that the Legislature cannot surrender irrevocably or bargain away the authority to fix or control rates for public utilities. State v. Public Service Commission, 275 Mo. 201, 204 S. W. 499; Chicago & Alton Railroad Co. v. Tranbarger, 238 U. S. 67, 35 S. Ct. 678, 59 L. Ed. 1204; Atlantic Coast Line v. Goldsboro, 232 U. S. 548, 34 S. Ct. 364, 58 L. Ed. 721; Lake Shore & Michigan Southern Railway Co. v. Ohio, 173 U. S. 285, 19 S. Ct. 465, 43 L. Ed. 702; C. B. & Q. Railway Co. v. Illinois, 200 U. S. 561, 26 S. Ct. 341, 50 L. Ed. 596, 4 Ann. Cas. 1175; Bacon v. Walker, 204 U. S. 311, 27 S. Ct. 289, 51 L. Ed. 499; City of Lead v. Gas Co. (S. D.) 184 N. W. 244, overruling Watertown v. Watertown, etc., Co., 42 S. D. 220, 173 N. W. 739; City of San Antonio v. San Antonio Public Service Co., 255 U. S. 547, 41 S. Ct. 428, 65 L. Ed. 777; City of Scranton v. Public Service Commission, 268 Pa. 192, 110 A. 775; City of Woodburn v. Public Service Commission of Oregon et al., 82 Or. 114, 161 P. 391, L. R. A. 19170, 98, Ann. Cas. 1917E, 996; O’Keefe v. City of New Orleans (D. C.) 273 F. 560.”

This court, in the case of the City of Shreveport v. S. W. (Jas & Electric co., 151 La. 864, 92 So. 365, held that authority delegated to a municipality to establish by an inviolable contract the rates to be charged by a public service corporation “was not possible in this state,” in view of the constitutional provision forbidding the abridgment of the police power. This decision affirmed and reiterated the doctrine previously announced to the same effect in State v. City of New Orleans.

The only difficulty in arriving at a correct solution of this matter of rate making has arisen from the confusion occasioned by not invoking the plain distinction between the powers of a municipality to fix rates, as a matter of regulation, in franchise contracts, and the exercise of the police power to fix compulsory rates, which must be delegated by the state, in plain and unmistakable terms, to the municipality, which has no such inherent power. The framers of the present Constitution did not interpret the powers of “supervision, regulation, and control” as including the right to establish rates compulsorily, when clothing the Public Service Commission of this state with its authority, but, in addition to these powers, the Constitution has expressly added, “and to fix reasonable and just rates.”

If a municipality enjoys, under its powers of “supervision, regulation, and control,” the right to fix compulsory rates, it would possess powers equal to those of the Commission itself, and there would be no good reason or real necessity for its surrendering its right of self local government and its powers to that body. Erom this viewpoint, section 7 of article 6 of the present Constitution would be a useless provision in our organic law.

However, if a municipality was without the police power, plainly delegated, to fix rates by compulsion, its power of “regulation” being restricted to the mere making of rates by agreement in franchise contracts, there would be both good reason and real necessity for the surrender of its inadequate powers to the Commission, if such franchise rates were unreasonable and unjust to the public, in order that reasonable and just rates might be imposed by that body by compulsion.

We are dealing here with contracts, not between individuals affecting private interest, but with contracts granting public franchises to public service corporations; contracts which necessarily affect the general welfare of each city and' town in the state. Such contracts necessarily fall within the domain of the police power of the state, in order that the sovereign may give adequate protection to its citizens in the making of just and reasonable rates for the service rendered by public utilities. Lawful contracts of individuals, as they affect private interests only, are not subject to modification by the state, in the exertion of its police power. The obligation of such contracts cannot be impaired by legislative action. But contracts , by municipalities, granting public franchises and fixing public service rates, while inviolable as to the franchise itself, are subject to change by the state as to such rates, for, by all contracts of üiis character, public interest is affected, and into each of such contracts the ratehnaking element of the police power of the state necessarily enters, and must control, in the'in-* terest of the public good.

As contracts granting public franchises are made, subject to the reserved right of the state, under its inherent police power, to change such rates, there can be no impairment of the obligation of such contracts, when the rates are changed.

The decisions of this court, herein cited, are sound in principle, based upon established precedents, and afford ample protection to the public against excessive charges for service rendered by local public utilities. These decisions, therefore, should stand as the settled jurisprudence of this state on the question of the rate-making power.

I therefore respectfully dissent.

On Rehearing.

BRUNOT, J.

The decision rendered in this case on March 8, 1924, holds: That the ordinance complained of, which was adopted by the town council of Vidalia in 1923, did not violate the franchise granted to plaintiff'in 1902; that the council had power to make rates covering ferriage charges for transporting articles not mentioned in the franchise; that, in fixing such rates, the council acted in a legislative capacity, and therefore there was no necessity for notice to plaintiff or for a hearing contradictorily with him preliminary to fixing the rates; and that the rates fixed in the ordinance are not unreasonable.

Plaintiff contends that there are four fundamental errors in the opinion, viz.: That the court erred in holding that paragraph 32 of section 15 of the Lawrason Act empowers the town council of Vidalia to fix compulsory rates for ferriage not agreed on in the, franchise; that the court erred in holding that the police power to fix rates for public utilities may result from neeessary implication; that thé court erred in holding that plaintiff, "by virtue of his franchise, enjoys a monopoly, and therefore the town of. Vidalia has the implied right to regulate the rates; and that the court erred in holding that, as the Public Service Commission was not in existence when the franchise was granted, the town of Vidalia has power to fix rates not fixed in the franchise.

Plaintiff quotes from the opinion of this court the following:

“The town of Vidalia is incorporated under the Lawrason Act, No. 136 of 1898, and under paragraph 32 of section 15 of that act the town had power ‘to license ferries and to regulate the same /md the landing thereof, within, the corporate limits.’ It has, therefore, control over plaintiff’s ferry, and may fix all such rates (at least) as are not fixed by the franchise.”

Plaintiff contends that this expression of the court is in opposition to the views of the text-writers and to • the jurisprudence of this and other states. In support of this contention he cites Shreveport Traction Co. v. City of Shreveport, 122 La. 1, 47 So. 40, 129 Am. St. Rep. 345, and City of. Shreveport v. Southwestern Gas & Electric Co., 151 La. 864, 92 So. 365. In the first case cited, the city attempted to compel the Shreveport Traction Company- to furnish transfers on its lines. The court held that Shreveport had not been granted the power to fix rates compulsorily, and that the traction company had a binding contract with the city by which the rates for transportation were fixed, and that this contract was inviolable. In the second cited ease, the city, under the power to regulate and make improvements to the streets, alleys, public squares, wharves, and other public property, and to provide for the lighting and watering of the same undertook to fix gas rates for the general public. The court properly held that:

“The question in the present case is not as to whether the city has not had heretofore the power to fix a gas rate by agreement with the gas Company, or might not do so now; but it is as to whether it has thus had, and now has, the power to impose a gas rate by compulsion.”

The court was considering the right of the city to fix a compulsory gas rate for the benefit of the general public, and, as the court found, that the power of the city was limited to its regulation, improvement, lighting and watering of streets, alleys, public squares, wharves, and other public property, it is manifest that the city had no power to fix compulsory rates for the benefit of private consumers of gas.

In the case of City of Detroit v. Detroit Citizens’ St. Ry. Co., 184 U. S. 389, 22 S. Ct. 410, 46 L. Ed. 592, it is held that where the rate of fare has been fixed under proper authority it is not open to alteration by the council by whom the. grant has been made.

We cannot see how these authorities weaken the force of the reasoning or affect, in the least, the conclusions reached in our original opinion.

In Long, Mayor, v. Miller et al. (C. C. A.) 262 F. 362, and City of Sault Ste. Marie v. International Transit Co., 234 U. S. 333, 34 S. Ct. 826, 58 L. Ed. 1337, 52 L. R. A. (N. S.) 574, the court recognizes the power of the state to prevent extortion, and to fix reasonable ferry ratesx and to enforce police regulations governing the conduct of the business of operating a ferry across a navigable stream from one state to an adjoining state. If it be conceded that the ferry between Vidalia and Natchez is an interstate transportation facility, the situation of plaintiff will not be affected thereby, because Congress and the Interstate Commerce Commission have not seen fit to act, and until they do so the power of the state is supreme.

With respect to ferries, Act 202 of 1902 contains a grant of power to police juries to fix rates, except where the ferry is in the corporate limits of a town or city, and Act 136 of 1898, as amended by Act 111 of 1912, grants to municipalities the right “to license ferries and regulate the same and the landing thereof within the corporate limits.”

It is not necessary to add to the clear reasoning of the court in the original opinion which led us to the conclusion:

“That ferries under the control of municipalities are subject to regulation by the governing authorities of such municipalities as to all rates and tariffs not established by the franchise itself.”

In State v. New Orleans, 151 La. 24, 91 So. 593, this court held that the rate-making power had been delegated by the state to the municipality in general terms; that this power had not been impaired by the Constitution of 1921; and that the power to regulate, supervise, and control included the power to make rates.

In the case of Baton Rouge Water Works Co. v. La. Public Service Commission, 100 So. 710, this court held that the rate-making power had been delegated to the municipality by the following words in its charter:

“The council shall have power to enact all laws and ordinances necessary * * * to provide an adequate water supply.”

The charter of the town of Vidalia (Act 136 of 1898), in paragraph 32 of section 15, grants to the municipality the power to “license ferries and to regulate the same and the landing thereof within the corporate limits,” and paragraph 1 of section 16 grants to the municipality the power “to fix the rate for the carriage' of persons and dray-age, cartage and transportation of property, other than by railroads operated by steam within the limits of the municipality.” This is an express grant of power to fix rates for transportation, within the corporate limits of the town, and the grant is inclusive except as to railroads operated by steam.

All other questions presented in the application for rehearing and in the brief filed in support of the application are fully and accurately disposed of in the original opinion, and a reconsideration of the case has strengthened our conviction in the correctness of the conclusions announced therein.

Our original judgment is therefore reinstated and made the final judgment of the court; plaintiff, appellee, to pay costs.

OVERTON, J., dissents.

LAND, J., dissents for reasons assigned in dissenting opinion. 
      
       156 La. 539.
     