
    No. 10,299.
    The State of Louisiana vs. Dominique Natal.
    
      A. municipal corporation has the power to contract with an individual, to authorize him to , build a market house, rent stalls and collect dues, during a specified period, with the consideration that the land, which is his property, and the improvements upon it, shall be conveyed to the city, and that the same, at the expiration of the term, shall be turned over absolutely, in good order to the corporation.
    
      The land and eonstruetions become municipal property at the signing of the contract, and the ownership becomes absolute at tlie expiration of tlie time in tlie city.
    Tlie market thus put up is a public market, and any private market found within the prohibited distance of six squares from, it, is there kept in violation of law.
    
      APPEAL from the First Recorder’s Court, Parish of Orleans. Murphy, J.
    
      T. MeO. Hyman, Assistant Cits’- Attorney, and Henry P. Dari for Plaintiff and Appellee.
    
      Branch If. Miller for Defendant and Appellant.
   Tlie opinion of tlie Court was delivered by

Bermudez, C. J.

'Tlie defendant seeks tlie reversal of tlie judgment of a-Recorder’s Court sentencing liim to the payment of a fine and in default, to imprisonment, for violating a city ordinance which prohibits the keeping of private markets within a certain distance from a public market, known as the “Keller Market.”

His objections to liability are: That the named market, is not a public but is a,private market, that tlie ordinance on which the prosecution is based has been repealed and that, if it exist, it is the creation of a monopofy and an invasion of his immunities and privileges as a citizen of the United States, all, in violation of the Constitution of the United States and amendments of articles 5 and 14 of the same and of the Constitution of Louisiana.

In our inquiry, we will invert those objections.

1. The defence charging the unconstiturionalffy of tlie law relative to private markets in New Orleans and of the ordinances adopted by the City in furtherance of it, is obsolete and exploded. In several instances which it would be tedious to enumerate, it has been unqualifiedly overruled. See 39 Ann. 439.

2. The defence that the ordinance has been repealed is utterly without merit. It was once pressed by the same defendant in a similar prosecution and was properly overruled. State vs. Natal, 39 Ann. 439. He has not shown why the ruling should be departed from.

So that, the only question remaining to be considered is, whether the Keller market is or not a public market, for, if, true it be that it is a private market, then the law and ordinances which prohibit the keeping of a private market within a certain distance from a public market, do not obtain, as tlie public market is the initial point from which the distance is to be computed.

3. Hie defendant contends that the City had no right to make it a public market for the reason that the land and the improvements are not city but private property and that the private market ordinances are designed to protect only those markets which are owned, operated or leased by the City.

The Record shows that in 1867, in furtherance of an ordinance duly passed, the City of New Orleans and John II. Keller entered into a contract whereby, on the conveyance and transfer by the latter to the former, of his title to a square of ground which belonged to Mm in this city, he would be allowed to construct thereon a market and collect the revenues thereof for the term of fifteen years, subsequently extended to thirty years, the same to.remain subject to municipal supervision, control and regulations, actual and prospective, all the constructions and accessaries thus put up tó be turned over, at the expiration of the term, without any compensation and in good order, to the City of New Orleans, who was thereafter to be the absolute owner of both the land and the improvements erected upon it.

The City had the undoubted right to enter into such a contract. She possesses, by her charter then in existence, (Act 1856, No. 164, Sec. 23, all the powers necessary for a proper administration of a municipal government. Previous to that charter, she had been recognized by the then Supreme Court, the right of establishing public markets (Morano vs. Mayor, 2 La. 217) and since then, this right was again admitted. Cougot vs. New Orleans, 16 Ann. 21, also Weymouth vs. City, 40 Ann. 344.

lfy the signature of the act evidencing the contract between the City and Keller, the ownership of the land passed from the latter to the former, subject to his right to put up the' buildings and collect the revenues during the prescribed period; and the buildings themselves) during process of construction, up to completion, became the property of the City, with the same qualifications. Both on becoming municipal property, acquired the character of public property and as such, an immunity from taxation.

It is proper to notice, that the market, by the terms of the contract, was to remain subject to the supervision and control of the City and to all existing and eventual municipal legislation affecting such establishments.

In the case of Leclaire vs. Davenport, 13 Iowa 210, the court held, that under an ordinance of a like tenor and purport, as that passed by the city in this case, a city had the power to authorize the erection of market houses by an individual, to declare the same public markets, and to covenant to protect the owner in the enjoyment of the privileges conceded.

In a kindred case, the Supreme Court of Texas held that a municipal corporation may contract for the building of a market house, with an individual, conceding to him in consideration market privileges, with the right to lease stalls and collect rents, and also an exemption from taxation. City of Palestine vs. Barnes, 50 Tex. 539.

In the case at bar the defendant occupies inconsistent and self-destructive attitudes.

While in one breath he claims that the market is not a public, but a private market, in another he insists that it is a private market, divided into stalls, leased to butchers.

The fact of such division carries with it the implied admission that it is a public market, for, such markets are the only ones which- are divided into stalls, leased to butchers. Private markets, on the contrary, are those which are kept by individuals for their personal use and advantage, without any letting out of stalls to others, and in which only certain articles of food are permitted to be offered for sale.

Conceding, as is urged by the defendant, that the private market ordinances were intended to protect solely the markets owned, operated ox-leased by the city, it is apparent that, as the market in this case appertains to that class, any private market found within the specified distance, is there kept in legal contravention.

No distinction can be drawn between the facts, and the ruling in Weymouth vs. City, 40 Ann. 344, and those in the instant case, as in both, the market is city property.

It is unnecessary to determine whether, when the land and building's upon it, used as a market, belong to a private individual, the market can be considered as a public nxax-ket, as those features are not presented and the question is not at issue in the present controversy.

The defendant has failed to show that the market in question was subjected to the restrictions affecting- private markets.

It is admitted that the defendant’s market lies within the prohibited distance.

For violating the law, the defendant was properly sentenced.

Judgment affirmed.  