City of New Orleans v. Stafford

27 La. 417 | La. | 1875

Lead Opinion

Taliaferro, J.

It is charged against the defendant that in open violation of existing laws and regulations appertaining to the markets of the city for vending provisions of various- kinds for the sustenance of the inhabitants, he is keeping a private market, at which he is selling meats and other articles of provisions contrary to the said laws and municipal regulations, and thereby endangering the peace and good order of the city, putting in jeopardy the cleanliness and salubrity and the health and quietude of the inhabitants thereof, and furthermore subjecting the said city to a pecuniary loss and injury in an amount greatly in excess of one thousand dollars. The plaintiff prayed that an injunction be granted restraining the defendant from keeping open and conducting a private market, as, alleged hv the petitioner, the defendant is doing in violation of law. A rule was served upon the defendant to show cause why the injunction prayed for should not he granted, and the defendant answered: That the act of 1874 of the Legislature, providing that no private market should be permitted at any place in the city within the distance of twelve squares of a public market, is unconstitutional and void, because it was procured by bribery and corruption; because its title does not disclose or indicate its purposes; that it violates the constitution of the United States •, because it creates an involuntary servitude; that it abridges the privileges and immunities of the citizens; that it deprives them of their property without duo process of law. The defendant contends that having taken his license under the act 134 of 1866 he is entitled to keep a private market at the corner of St. Peter and Decatur streets during the space of one year, beginning January 1, 1874, and ending thirty-first of December, 1874; that this right having once vested it can not be taken away. He further contends that the city is without interest, having sold the revenues of the markets for the year 1874.

The application of the plaintiff for an injunction was dismissed at his costs, and the plaintiff has appealed.

The act of the Legislature authorizing private markets for the sale of meats, fish, poultry, etc., was passed in 1866 ; that act directs that keepers of private markets shall pay the same license that is required from retailers of provisions. The words of the statute are: ‘‘ Prom and after the first of January, 1867, it shall be lawful for all persons, after they have obtained the license required for retailers of provisions, to open, and keep open at all proper hours of the day, private markets, stores, or stands in any part of the city of New Orleans for the sale of meats, game, poultry, vegetables, fruit and fresh fish, subject to the general sanitary ordinances of the City Council.”

By the act of 1870, enlarging the limits of the city of New Orleans, and to provide for thfe government and administration of the affairs of the city, power is granted to the city to establish market places; and through its department of commerce to have general superintendence of all matters relating to markets. The City Council is vested with full power and authority to make and pass such by-laws and ordinances as are necessary and proper “ to regulate and preserve the peace and good order of the city and provide for and maintain its cleanliness and salubrity not inconsistent with any law relating thereto.” On the second December, 1873, the City Council passed an ordinance making the license for private markets $300. On the twenty-sixth of February, 1874, the defendant in this case took out from the State a wholesale dealer’s license on the payment of one hundred dollars. This license was taken out near three months after the'passage of the city ordinance requiring a license of three hundred dollars from the keepers of private markets. In the same ordinance the license of wholesale dealers is fixed at one hundred dollars. If the defendant was bound to take a license from the city for keeping a private market it is clear that he has not done it. But he relies upon the license from the State under the statute of 1866. This statute, as to the amount of the license fixed for private markets, is not quite definite— the license is to be that which is paid by “retailers of provisions.” We do not find from the record nor from the statutes of 1866 what the amount of that license was. We assume, however, that the defendant holds that his license as a wholesale dealer covers it whatever it maybe. Considering the act of the Legislature of 1866, together with the ordinance of the city of second December, 1873, passed more than two months before the date of the defendant’s license, we can not but consider his claim, to a license for the year 1874 at best as very questionable. It is not important that we should pass directly upon the question. A prominent ground of defense, and one upon which the judge a quo seems to have laid much stress, is that the city is without interest in the matter, having lea'sed or-farmed out the markets for the year 1874. We do not see that it follows because the city has leased the markets for the year 1874 it loses all interest in the management of them, in seeing that the laws and regulations concerning them are carried into effect. The act of 1874 makes it the duty of the city-through its administrator to take measures for carrying out the provisions of the act regulating private markets, and in any issue that may arise in acting under this authority the city would be competent to stand in judgment.

We pass now to the consideration of the most important question raised in this controversy. Has the Legislature the power to make the regulation which it has made by this act of twenty-sixth February, 1874, declaring that private markets shall not be established, con-' tinued, or kept open within twelve squares of a public market 9 This question, we think, must be answered in the affirmative. And the power arises from the nature of things, and is what is termed a police power. It springs from the great principle, “ solus populi suprema est lexP There is in the defendant’s case no room for any well grounded complaint of the violation of a vested private right, for the privilege, if he really possessed it, of keeping a private market, was acquired subordinately to the right existing in the sovereign to exercise the police power to regulate the peace and good order of the city, and to provide for and maintain its cleanliness and salubrity. By way of illustrating this necessarily existing power to regulate the number, location and management of markets, take the city of New Orleans, in a warm climate, located in a low district of country, surrounded by marshes and swamps, which, in the hot season, under favorable conditions, envelopes its large population in a malarious atmosphere. Under such circumstances the danger of epidemics becomes imminent. It behooves the city authorities at such periods to be on the alert to obviate local causes of disease within the limits of the city. Among such causes the decay of animal and vegitable matter is a prominent one. The markets, therefore, must on that account be strictly attended to, and such measures adopted in regard to them as, in the judgment of the proper authorities, the public health may require. Suppose under such a condition of things it should be found necessary as a sanitary regulation to reduce the number of markets, to abolish some of them, and thereby avoid their becoming causes of disease. Suppose the lessee of a public market and the keeper of a private market should find the markets under their control abolished, closed or suspended, from considerations of public security and benefit, before the expiration of the time for which their licenses were to continue; could they be sustained by law in a demand to be permitted to continue and keep open the markets they had charge of, on the pretense that they had a vested right to keep them open 9 Surely not. Their private benefit and advantage would have to yield to the public advantage. It would be a perversion of the principles of organized society and of regulated liberty to permit an individual to continue a business or occupation endangering the public health in order that he might derive profit from such occupation. We presume it will not be denied that under circumstances of peril and emergency the lawmaker would have the right to abolish or suspend an occupation imperiling the public safety. This power is inherent in him. He may exercise it prospectively for prevention as well as pro re nata for immediate effect. It is within his discretion when to exercise this power; and persons under license to pursue such occupations as may, in the public need and interest be affected by the exercise of the police power, embark in those occupations subject to the disadvantages which may result from a legal exercise of that power. The act of the General Assembly of twenty-sixth February, 1874, entitled “An act to regulate the private markets in the city of New Orleans and for other purposes,” does not violate or infringe any vested right. It is not unconstitutional.

The defendant charges that the passage of the act was procured by bribery and corruption ; that it was conceived in fraud, and its title designed to defraud. This is ooram non, judiee. Courts will not be influenced by mere allegations of this kind, unsupported by any evidence whatever, to disregard the maxim uommaprcesmimntur reete esse acta

It is objected that the law of February 26, 1874, is unconstitutional and void, as being in violation of article 114 of the State constitution, which directs that “ every law shall express its object or objects in its title.” We think the objection without weight. The act has but one object, that one object is expressed in its title. The title misleads nobody. The words “ and for other purposes” are in the title to this act meaningless, for there is nothing else treated of in the act besides the regulation of private markets. Its purpose is simplex dimtaxat et unum.

The act of February, 1874, abolishes all private markets located within less than twelve squares of a public market. To that extent it repeals the act of 1866 under which the defendant sets up his rights.It is shown that he is keeping a private market within one square of the French market, one of the principal public markets of the city. He is doing so in violation of law. We think the judgment of the-court a qua sustaining the defendant erroneous.

It is therefore ordered that the judgment of the district court be-annulled, avoided and set aside. It is further ordered that the injunction prayed for by the plaintiff be granted and perpetuated enjoining and restraining the defendant from opening, conducting, carrying on or continuing any private market or place of business for the sale of fresh meats, fresh fish, poultry, game, vegetables, etc., in the city of New Orleans, within the space, or distance of twelve squares of any public market under the jurisdiction and authority of the Administrator of Commerce of said city, and otherwise violating in any manner the provisions of an act entitled “An act to regulate the private markets in the city of New Orleans and for other purposes,” passed by the General Assembly of the State of Louisiana on the twenty-sixth of January, 1874. It is further ordered that the plaintiff recover from the defendant one hundred dollars, and that the defendant pay costs in both courts.

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Dissenting Opinion

Wtlx, J.,

dissenting. Section 1 of act No. 134 of the acts of 1866 provides “ that from and after the first day of January, 1867, it shall be lawful for all persons after they have obtained the license required for retailers of provisions to open and keep open at all proper hours of the day private markets, stores or stands, in any part of the city of New Orleans for the sale of meats, game, poultry, vegetables, fruit, and fresh fish, subject to the general sanitary ordinances of the City Council. In the record I find that the defendant, James Stafford, obtained State and city licenses as a wholesale merchant for the year ending thirty-first December, 1874. Under these licenses he has authority to sell at retail. He has all the “licenses required for retailers of provisions.” Having the licenses required for retailers of provisions, James Stafford fully complied with the act of 1866, and his contract made in pursuance thereof is protected by the constitution of the United States, and it is in no manner impaired by.the act No. 31 of acts of 1874, which was passed after said contract was made.

The plaintiffs, however, contend that three months before the defendant took out licenses as a wholesale merchant, entitling him to pursue the occupation of a retailer of provisions, the city passed an ordinance fixing the license for private markets at $300; and not having paid this license the defendant was not authorized to pursue the occupation of a keeper of a private market under his wholesale dealers licenses of one hundred dollars to the State and one hundred dollars to the city. To this a sufficient answer is, that the defendant having paid the licenses required for retailers of provisions, was entitled under the act of 1866 to keep a private market; and the city had no authority to pass the ordinance fixing the additional license or tax of $300. As the State had the right to pass the law and fix the conditions upon which it would allow private markets, the city of New Orleans could not impose an additional condition without asserting the right to amend a law of the State. When the State says that all persons may keep private markets upon taking out the licenses required for retailers of provisions, the city of New Orleans has no right to defeat or restrict the will of the sovereign by passing an ordinance requiring an additional tax or license of $300. The defendant paid the license required of retailers of provisions; he accepted the offer of the State contained in the act of 1866; and the contract was perfected by which he acquired the right to keep a private market at his store for the year 1874.

Assuming that act No. 31 of the acts of 1874, is constitutional, and that it repeals that part of the act of 1866, allowing private markets within twelve squares of a public market, in my opinion this law, passed after the defendant’s rights were acquired, in no manner affected him. During the period fixed in the licenses, the defendant has the right to keep a private market. The State can not destroy this right without impairing the obligation of a contract. It is useless to talk of the exercise of police power by the State in the interest of public order and the health of the city. No one questions the right of the State to pass needful laws for the preservation of these important interests. No one has the right to pursue an occupation detrimental to the public health and safety. But the precise question is, is the statute No. 31 of the acts of 1874, a law passed in the interest of good order and public health? How can the public health and good order be endangered by allowing private markets within twelve squares of a public market? If private markets beyond twelve squares of a public market will not endanger public health and safety, how comes it that such markets within twelve squares will be detrimental? There is nothing in the act showing that the motive of the lawgiver was to preserve good order and the public health. It is an argument suggested by the ingenuity of counsel, and in my opinion it is , entirely foreign to the issues presented in this case.

The title of the act is “An act to regulate the private markets of the city of New Orleans and for other purposes.”

Section first makes it unlawful to keep a private market for the sale of fresh méats, poultry, fresh fish, etc., within twelve squares of a public market. Section second authorizes the Administrator of Commerce to close such markets opened or conducted in violation of section one. Section third imposes a penalty for violating section one.

Section fourth makes it the duty of the judge of the First District Court to charge the grand jury as to the provisions of this act.

Section fifth provides: “That upon the reverse side of each and every license granted by the State of Louisiana or the city of New Orleans for the carrying on, conduction, and operation of a private market for the sale of fresh meat, poultry, fresh fish, etc., the following words shall be printed thereon: “ It is distinctly understood that the holder of this license shall not open, establish, or carry on a private market within twelve squares of any public market under penalty of the forfeiture of this license.”

Section sixth provides that this act shall take effect from and after its passage, and that all laws in conflict therewith are repealed.

As before remarked, there is not one word in the statute showing that it is a police law for the preservation of good order and the public health. On the contrary, from the terms of the act the conclusion is inevitable that the lawgiver simply desired to amend the act of 1866, so as to prohibit private markets for the sale of fresh meats, fish, etc., within twelve squares of a public market. And this view is confirmed by considering the fifth section, which provides that hereafter a certain stipulation shall be printed on the reverse side of the licenses to carry on a private market. It imposes a new condition in the contract arising from the taking out of licenses under the act of 1866, whereby the person taking out said licenses stipulates not to keep a private market for the sale of fresh meats, fish, etc., within twelve squares of a public market. The law before us simply adds a new condition to the standing offer of the State under the law of 1866, to sell licenses or to make a contract with any one desiring it, to keep a private market.

How the modification of an offer to make a contract can modify or alter a contract already made, I can not imagine. There was no stipulation when the defendant got his licenses for the year 1874 that he would not keep a private market within twelve squares of a public market. A stipulation proposed in a law passed subsequent to the purchase of the licenses by the defendant, forms no part of the contract which arose by the purchase of said licenses. It is a stipulation which was not demanded by the State at the time, and which was not consented to by the parties. It therefore forms no' part of the contract between the defendant and the State and is not obligatory on him.

Another reason why the statute was not passed to promote the public health is, that for that purpose this law was not necessary, the act of 1866 establishing private markets expressly stipulating that the right is granted, “ subject to the general sanitary ordinances of the City Council.” Besides, under the charter of 1870 the city has full authority to pass ordinances: “ To regulate and preserve the peace and good order of the city, and to provide for and maintain its cleanliness and salubrity.” * * * After confiding the care of public health and good order to the city, the State had no occasion to pass the statute before us in the interest of good order and public health.

In the absence of a motive we can not presume the statute a police regulation.

But suppose the lawgiver had declared the act a police regulation, that would not make it such. Under the name of a police law the State can not deprive a citizen of his property or the right to pursue the occupation for which he has a license, when the enjoyment of such property or the pursuit of such occupation will not endanger public health, safety, peace and good order. The enjoyment of the occupation for which the defendant has State and city licenses for the year 1874, will in no manner endanger the public interests which the State can protect under the exercise of its police power. The police power, like all powers confided to the Legislature is not unlimited; and of the extent of this power it is for the courts and not the Legislature to decide. Any other doctrine would be subversive of liberty. The Legislature could call its laws police regulations, and thereby escape all the limitations of the constitution.

I agree with the district judge that the plaintiffs have no pecuniary interest in the controversy, the city having leased out the public markets for 1874. The enforcement of the law may benefit the lessees of the public markets, because it virtually gives them a monopoly or an exclusive right over all other persons to sell fresh meats, fish, poultry, and vegetables within twelve squares of the public markets. But whether the law is enforced or not against the defendant it can confer no pecuniary benefit on the plaintiffs. The jurisdiction of this court in civil cases is limited, and as the matter in dispute does not exceed five hundred dollars this court is without jurisdiction ratione materia, and the appeal should, on that account, be dismissed.

I come now to consider the constitutionality of the statute. Article 114 of the constitution requires that the object or objects of every law shall be expressed in its title. The sole object of the act is to amend the act of 1866, so as to prohibit private markets for the sale of fresh meats, game, poultry, fresh fish, and fruit within twelve squares of a public market, the intention being to give public markets the monopoly, within such limits, of selling such produce or articles of merchandise. This, the undoubted object of the law, is not expressed in its title. The title “to regulate private markets” gives no clue to the purpose or object of the law. No one hearing the title of the act read would be apprised of the purpose to amend the act of 1866, so as to prohibit private markets for the sale of fresh meats, fish, poultry, and fruits within twelve squares of a public market. If this title be good to cover a prohibitory law within twelve squares, why would it not be equally as good to cover a law prohibiting private markets within one mile or twelve miles of a public market. To regulate suggests the idea of administering a thing, not of destroying it; the private markets we understand from the title are to be administered, all of them, in a certain way; but the title gives no clue to the destruction of any them. In my opinion the law is not covered by its title. It is repugnant to article 114 of the constitution and therefore void.

For the reasons stated I feel constrained to dissent in this case.

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Dissenting Opinion

Howell, J.,

dissenting. In my opinion the defendant, Stafford, had complied with the law, by which he secured the right to carry on his business for one year, and that he could not be deprived of such right as is done in this case; and further, that the city of New Orleans having farmed out the public markets for the current year has no interest in the matter.

I express no opinion at this time upon the other questions involved in this proceeding.

Rehearing refused.