98 So. 50 | La. | 1923
Lead Opinion
By the WHOLE COURT.
The board of commissioners of the port of New Orleans has invoked the supervisory jurisdiction of this court to set aside an injunction issued by a judge óf the civil district court. The order of injunction, and the writ itself, in precise terms, forbade the board, and the members thereof, and their agents, police officers, and other servants, to exclude the plaintiffs, Henry Keegan ét al., from the public wharves of the port of New Orleans, where ships were being loaded or unloaded, while such work was going on. The writ has been held in abeyance by an order of this court, staying temporarily the proceedings in the civil district court.
The facts on which the order of injunction issued aré set forth in the pleadings in the court below. The plaintiffs, 16 in number, are resident taxpayers in the city of New Orleans." Pour of them are the Presidents, respectively, of four labor organizations, namely, Stevedores’ & Longshoremen’s Benevolent Society, Screwmen’s Benevolent Association, Longshoremen’s Protective Union & Benevolent Association, and Screwmen’s Benevolent Association No. 1. Each of the 12 other plaintiffs is a member of one or another of the organizations mentioned. They are all longshoremen or screwmen, and are usually employed by the steamship agents and owners in the port of New Orleans. On the 13th of September — last month — the plaintiffs, with the other members of the labor organizations mentioned, went on a ■strike, in consequence of disagreements and controversies, over wages and working conditions, that had arisen between them, on the one side, and their employers, on the other side, namely, members of the New Orleans Steamship Association, and other steamship agents and owners, operating in the port of New Orleans. On the 18th of September, the strike being yet on, the board of commissioners of the Port of New Orleans issued this order:
“That all persons shall be prohibited from entering or using the public wharves during the present strike unless it be on business in connection with the commerce and navigation of the port.”
Having knowledge of this order, the plaintiffs attempted, peaceably, as they allege, to enter upon the docks, and were prevented by the harbor police, employed by the board of commissioners of the port. On the 27th of September, the plaintiffs, some personally and others by their representatives, appeared before the board, at a meeting held in the board’s office, and protested against the enforcement of the board’s order, forbidding them and any one else — during the strike— to enter or use the public' wharves otherwise than for business in connection with the commerce or navigation of the port. Their request for a rescission of the order was refused by the board. Eleven days later — and on the twentieth day after the order complained of had been issued — plaintiffs filed this suit, praying that the board of commissioners, and the members thereof in their official capacity, and their officers, agents, and employees, should be perpetually enjoined and restrained from further enforcing or .attempting to enforce the aforesaid order, and “from interfering with petitioners, in any way whatever, in approaching, entering, going upon, .circulating around and through and otherwise exercising their legal rights in
Having alleged the facts which we have stated, plaintiffs made the following allegations, which, for the most part, seem to be matters of inference, belief, or opinion, rather then matters of fact, viz.:
“That the board of commissioners of the port of New Orleans, whose control of the public-property along- the river front is purely administrative, exceeded its power in issuing a police regulation of the character of said order; that nowhere in law or custom can the authority therefor be found; and that the act of issuing and enforcing said order is unwarranted in law, ultra vires, unauthorized, and illegal.
“That, even if the state Legislature had seen fit to invest the said board with power and authority to issue a police regulation such as the aforesaid order (which petitioners deny), there was not and is not the slightest ground or suspicion which would have justified the issuance, or which would justify the enforcement, of such a drastic order; that the issuance of an order similar to the one now complained of has never, in the port’s history, been justified as a police measure; nor has it ever before been contemplated.
“That, during the present strike, after the walkout, and before the issuance of the dock board’s order, for a period of almost a week, there was, as a result of or growing out of said strike, no violence or breach of the peace, nor any other illegal act of any nature whatsoever, committed or threatened, on property administered by the board of port commissioners, or any other property along the river front; and that, therefore, there was and could have been no reasonable apprehension or suspicion that acts of violence or damage would occur upon the docks or along the river front; and that, therefore, the said order, even if it be not ultra vires (which your petitioners maintain it is), is inspired by favoritism, bias, and prejudice, and is an unfounded, uncalled for, unreasonable, arbitrary, and unwarranted exercise of police power, and is therefore illegal.
“That your petitioners firmly believe, and therefore aver, that, although nominally the said order prohibits the general public from entering upon the river front, in truth and in fact the said order was and is primarily aimed at your petitioners, together with their fellow members of the four striking unions, for the purpose of injuring and harassing your petitioners and their associates, with the object of forcing them to abandon their strike and to submit to the terms and conditions laid down by the steamship owners and agents; and that the said order was issued in furtherance of a policy of favoritism towards the shipping interests, and discrimination against your petitioners and their organizations, by the board of commissioners of the port of New Orleans, for reasons best known to the members of said board.”
The petition concludes with an allegation which seems to be somewhat irrelevant, and which is indignantly denied by the board, that, on two occasions, the steam tug Sampson, which was controlled and operated by the board, was used to convey nonunion men and strike breakers to fill the places of employment that had been vacated by the plaintiffs.
They did not disclose, in their petition, the purpose for which they desired to go upon the wharves, or state whether they were going there severally or in a group when they were stopped by the harbor police; neither did they allege that their mission was “on business in connection with the commerce and navigation of the port.” All that they alleged in that respect was that they desired to go upon the wharves, and “that your petitioners’ desire was and is a lawful one.”
In response to the rule to show cause why the injunction should not issue, the board of commissioners pleaded that the allegations of the petition did not set forth a cause or right of action. Having heard argument on the plea, the judge ruled that the allegations of the petition did disclose a cause of action. Thereupon, the board answered, admitting that the order complained of had been issued, and averring that it had been enforced without favor or discrimination, against the steamship agents having no busi
The issue thus presented was argued and submitted on the pleadings; whereupon, the court, having taken the matter under eonsicleration, ordered that the injunction should issue, on plaintiffs’ giving bond for $5,000, with the statutory obligation to pay such damages as the defendant might suffer if the writ was wrongfully obtained. Having made an unsuccessful application for a rehearing or new trial, the board of commissioners filed its petition here for writs of certiorari and prohibition.
In compliance with the writ of certiorari and in response to the rule to show cause why the prohibition should not issue, the judge of the civil district court has sent up a certified copy of the record and has formally submitted the matter for decision.
The plaintiffs, Henry Keegan and others, filed a motion to rescind the temporary restraining order of this court, staying execution or enforcement of the order of injunction. The motion was based upon the averment that the civil district court had jurisdiction of the subject-matter and that the proceedings were regular. Answering the rule to show cause why the prohibition should not is^ue, the respondents, Keegan and others, repeat that the civil district court had jurisdiction of the injunction suit, that the proceedings were regular, and .that, therefore, the only remedy that the defendant board of commissioners had, if the judge of the civil district court erred in issuing the writ of injunction, was by an ordinary appeal from the judge’s order. In like manner, the brief filed for the respondents, Keegan and others, is devoted entirely to the argument that the supervisory jurisdiction of this court, to issue writs of certiorari or prohibition, is confined to cases where the inferior court is acting beyond its jurisdiction, or where there is lack of form or regularity ih the proceedings, or a want of due process of law.
It is argued, in respondents’ pleadings and brief, that the effect of our issuing a temporary restraining order, in a case like this, is to deprive the district courts of the authority given them by the Oonstitution and the Code of Practice to issue writs of injunction,. and to lodge such jurisdiction in the Supreme Court. We considered that phase of the case, very carefully, before granting the temporary restraining order. But we thought, also, of the converse of the proposition; that is, that, if our “control and general supervision over all inferior courts,” granted by the first paragraph of section 10 of article 7 of the Constitution (being article
If the only recourse of a person against whom an injunction causing immediate and irreparable injury has been issued is to take an ordinary appeal from the order of injunction, he has no available remedy. A suspensive appeal — one which stays execution of the judgment or order appealed from — maintains the status quo until a final judgment is rendered in the case. Therefore an appeal from an order granting an injunction, pendente lite, would leave the injunction in force. State v. City of New Orleans, 149 La. 788, 90 South. 196. It will not do to say that the defendant in such case might be quick enough to obtain and perfect an appeal from the order of injunction before the sheriff could serve or execute the writ. If the defendant’s only remedy in such case would be a suspensive appeal from the order of injunction, he would be entitled to a delay of 10 days in which to obtain and perfect the appeal. Code of Practice, arts. 566 and 575. AH of which reasoning would end in the anomalous proposition that an order granting an injunction pendente lite should not be executed or enforced within' 10 days after notice has been given to the party enjoined. In that respect, an order granting an injunction pendente lite is like an order refusing to dissolve the injunction, either peremptorily or on bond. In neither case has the defendant an adequate remedy by appeal, or otherwise than by invoking the supervisory jurisdiction of the appellate court. Osborne v. Clayton, 3 Rob. 437; Woolfolk v. Woolfolk, 22 La. Ann. 207; State ex rel. Doullut v. Judge, 29 La. Ann. 870, 872; Jefferson & L. P. R. Co. v. City of New Orleans, 30 La. Ann. 213; Town of Donaldsonville v. Police Jury of Ascension Parish, 33 La. Ann. 248; Fontelieu v. Gates, 36 La. Ann. 833; Schmidt v. Foucher, 37 La. Ann. 175; Succession of Labauve, 38 La. Ann. 357; State ex rel. Shakespeare v. Judge, 40 La. Ann. 609, 4 South. 485; Cottam v. Currie, 42 La. Ann. 876, 8 South. 600; State ex rel. Violett v. King, 46 La. Ann. 86, 14 South. 423; State ex rel. City of New Orleans v. Judge, 52 La. Ann. 1278, 27 South. 697, 51 L. R. A. 71; Wendling v. Dixie Ice Mfg. Co., 121 La. 187, 46 South. 205.
In support of the argument that this court has not jurisdiction or authority to issue writs of certiorari or prohibition in a ease like this, counsel for the respondents, Keegan and others, cite articles 845 and 857 of the Code of Practice. Article 845 purports to confine, the court’s authority to issue the writ of prohibition to cases where the judge of the'lower court is exceeding the bounds of his jurisdiction; and article 857 purports to limit the court’s authority to issue the writ of certiorari to cases where there is no right of appeal, and where the proceedings are so irregular that the judgment of the lower court would be absolutely void.
The fact that the order of injunction in this case was not an ex parte order, but was issued after allowing the defendant a hearing on a rule nisi, does not make the order one from which the defendant’s only remedy was an appeal, as from a judgment rendered in an ordinary judicial proceeding. The writ was issued on the face of the pleadings, and without other evidence; but, if the judge’s reasons for his ruling should stand affirmed, they would be the settled law of the ease.
Coming now to the question whether the plaintiffs in this case were entitled to the writ of injunction, we find that the board of commissioners of the port of New Orleans now has as complete authority to police the docks and wharves along the river front as the municipal counsel has ever had. The board was created, and its authority defined, by Act 70 of 1896. As amended by Act 36 of 1900, and by Act 14 of 1915, section 2 of the statute declares:
“That said board of commissioners shall have the power to regulate the commerce and traffic of the port and harbor of New Orleans in such manner as may, in their judgment, be best for its maintenance and development. They shall have and enjoy all the rights, powers and immunities incident to corporations. They shall be empowered, and it shall be their duty to have charge of, and administer the public whartes and landings of the port of New Orleans; to construct new wharves and other structures when necessary; to erect sheds and other structures on the wharves and landings; to place and keep the wharves and landings, sheds and other structures in good condition; to maintain proper depths of water at all such wharves and landings; to provide mechanical facilities for the use of such wharves, landings, sheds and other structures; to provide light, water, police _ protection, as under existing laws and other services for 'such wharves, landings and sheds, as they may deem advisable; to finance, erect and operate all basins, locks, canals and warehouse elevators,” etc.
This important provision was also made in the amending statute of 1915, viz.:
“That the former ordinances of the city of New Orleans applying to wharves and landings and river front of the city of New Orleans shall remain in full force and effect except as amended by the board of commissioners of the port of New Orleans, and all ordinances passed by said latter board concerning the territory, jurisdiction and control of the port of New Orleans, and the proper conduct thereof, shall*652 be enforceable by fine and imprisonment in the same manner as the ordinances of the city of New Orleans now are, that is, by fine not to exceed twenty-five dollars or an imprisonment not to exceed thirty days, the prosecutions to be carried on in the recorders’ courts of the city of New Orleans, or in the district courts in Jefferson and St. Bernard parishes.”
By Act 101 of 1920, a police department for the port was created and placed under the authority of the board of commissioners, viz.:
“Section 1. Be it enacted by the General Assembly of the state of Louisiana, that the board of commissioners of the port of New Orleans shall have and are hereby given authority, ,in their discretion, to appoint, fix salaries of and pay port and harbor police; said police to consist of such number of men, of good character and citizens of the state of Louisiana, not under 21 years of age, as said board of commissioners of the port of 'New Orleans shall, in their discretion, appoint as aforesaid. That said port and harbor police shall, each of them have under the direction and control of the commissioners the same power to make arrests, in and upon the wharves, landing-, canals, sheds, warehouses and all other structures and property within the jurisdiction of said board and approaches thereto, and to execute and return all criminal warrants and processes as sheriffs of this state now have, and shall, under the same direction and authority, have all the powers of sheriffs as peace officers in all places and on all premises under the jurisdiction and control of said board, and the streets and approaches thereto. That any persons arrested by officers of this board, and the return of all warrants or processes served by said officers shall be forthwith surrendered or delivered to the criminal sheriff of the parish of Orleans or sheriffs of St. Bernard and Jeffeirson parishes; provided this shall in no way deprive the New Orleans city police or any sheriff or deputy sheriff in the-parishes of Orleans, St. Bernard or Jefferson from making arrests or from serving warrants or process of court in any such place or on any such premises. That the said board of commissioners shall make rules and regulations for the conduct, management and control of said port and harbor police; and shall from time to time, enlarge, modify or change such rules and regulations in their discretion. That upon the appointment of such police, each of them shall enter into a good and solvent bond, in a sum not less than one thousand dollars, to be fixed by said board, conditioned for the faithful performance of all their duties; and any one injured or damaged by any one of said port and harbor police may bring suit upon said bond in his or her own name, for his or her benefit or use.
“Sec. 2. Be it further. enacted, etc., that so much of section 3 of Act 32 of 1904, as amended, creating a board of commissioners of the police department of the city of New Orleans and of section 16 of Act 159 of 1912, which requires the board of commissioners of the port of New Orleans to pay to the.board of commissioners of the police department of the city of New Orleans the sum of twelve thousand five hundred dollars per annum for policing the wharves and landings, be and the same is hereby repealed.
“Sec. 3. Be it further enacted, etc., that this act shall take effect from and after its promulgation and that all laws or parts of laws in conflict or inconsistent therewith be and the same are hereby repealed.”
The statutes which we have quoted have made the police power of the board of commissioners over the docks and wharves as immune from interference by injunction, as is the police power of the municipal coun - cil throughout the city. The courts have no greater authority to prevent by injunction the execution or enforcement of a police regulation enacted by the board of commissioners of the port of New Orleans, in the exercise of the board’s police power over the docks and wharves, than to prevent the execution or enforcement of a police regulation enacted by the municipal council. There are cases in which the courts may, by injunction, prevent the execution or enforcement of a police regulation of a municipal corporation, but they are extraordinary cases, where the legislative body has exceeded or grossly abused its authority, and has invaded an individual’s vested or fundamental rigjit or immunity. McFarlain. v. Town of Jennings, 106 La. 542, 31 South. 62; New Orleans Baseball & Amusement Co. v. City of New Orleans, 118 La. 228, 42 South. 784, 7 L. R. A. (N. S.) 1014, 118 Am. St. Rep. 366, 10 Ann. Cas, 757; citing Dobbins v. City of Los Angeles, 195 U. S.
The police regulation complained of in this case, being enforced only during the strike on the river front, is not an abuse of the police power of the board of commissioners of the port. It does not invade any vested right or immunity of the plaintiffs in this suit. The judgment in their favor was based largely upon an expression in American Steel Foundries v. Tri-City Central Trades Council, 257 U. S. 184, 42 Sup. Ct. 72, 66 L. Ed. 189, with regard to the rights of strikers, viz.:
“We must have every regard to the congressional intention manifested in the act [meaning the Clayton Act, October 15, 1914, chapter 323, 38 Stat. at L. 738, Comp. Stat. § 1243d, 6 Fed. Stat. Anno. 2d Ed. p. 141], and to the principle of existing law which it declared, that ex-employees and others properly acting with them shall have an opportunity, so far as is consistent with peace and law, to observe who are still working for the employer, to communicate with them and to persuade them to join the ranks of his opponents in a lawful economic struggle. Regarding as primary the rights of the employees to work for whom they will, and, undisturbed by annoying importunity or intimidation of numbers, to go, freely to and from their place of labor, and keeping in mind the right of the employer incident to his property and business to free access of such employees, what can be done to reconcile the conflicting interests?”
Of course, if the board of commissioners of the port bad Hot enacted this police regulation, in this emergency, it would be not unlawful or improper for the strikers and their sympathizers to go upon the wharves peaceably, to observe who are yet working on the ships in port, to communicate with them, and to persuade them to join the ranks of the strikers in this economic struggle. But that is not the question. The question is whether the board of ’commissioners has exceeded or abused its police power, by forbidding the use of the wharves otherwise ■than for business connected with the commerce and navigation of the port, during the strike. The complaint of the plaintiffs, in that respect, is that the order prevents their going upon the wharves for the purpose of picketing. Picketing, by strikers, is a detachment or stationing of men, either severally or in squads, at convenient places, persuading or trying to persuade other men not to take the places of employment vacated by the strikers, or persuading or trying to persuade thq employed men to quit their work and join the ranks of the strikers. It may well be that the board of commissioners was justified in the fear of the danger of allowing picketing, by the members of four labor unions and their sympathizers, on the wharves or docks, or in the sheds or in close proximity to the ships in port. In Truax v. Corrigan, 257 U. S. 340, 42 Sup. Ct. 124, 66 L. Ed. 266, the Chief Justice, for the court, said, of his previous ruling in American Steel Foundries v. Tri-City Central Trades Council, supra:
“We have but recently considered the clauses of section 20 of the Clayton Act, sometimes erroneously called the ‘picketing’ clauses. American Steel Foundries v. Tri-City Central Trades Council [opinion announced December 5th] (257 U. S. 184). * * *
“We held that under these clauses picketing was unlawful, and that it might be enjoined as such, and that peaceful picketing was a contradiction in terms which the statute sedulously avoided, but that, subject to the primary right of the employer and his employees and would-be employees to free access to his premises without obstruction by violence, intimidation, annoyance, importunity or dogging, it was lawful for ex-employees on a strike and their fellows in a labor union to have a single representative at each entrance to the plant of the employer to announce the strike and peaceably to persuade the employees and would-be employees to join them in it. We held that these clauses [in the Clayton Act] were merely declaratory of what had always been the*656 law and the best practice in equity, and we thus applied them.”
■ The responsibility of determining what precautions should be taken to avoid the danger of állowing men arrayed on opposite sides of a labor strike to assemble on the wharves and docks along the river front, in close proximity to the ships in port, is not on the courts, but on the board of commissioners of the port. So long as that department does not exceed its authority or abuse its trust, the courts would better not interfere. Our opinion is that the board did not exceed its authority or abuse its trust, in this instance, and that therefore the injunction should not have issued.
The order and writ of injunction complained of are annulled, at the cost of the respondents, Henry Keegan et al.
Dissenting Opinion
(dissenting). Plaintiffs in injunction have attacked as ultra vires, unauthorized, and illegal the following order or regulation adopted by the dock board:
“That all persons shall be prohibited from entering or using the public wharves during the present strike unless it be on business in connection with the commerce and navigation of the port.” (Italics mine.) ,
It is well settled that municipal ordinances, purporting to have been adopted in the exercise of implied, or general authority, must be “reasonable,” “lawful,” “impartial,” “fair,” “general,” “consistent with public policy,” and not “in contravention of common right.”
Town of Crowley v. West, 52 La. Ann. 534, 27 South. 53, 47 L. R. A. 652, 78 Am. St. Rep. 355; Dillon on Munic. Corp. (4th Ed.) pars. 319, 320, 321, 322, 323, 325, 326, 329.
Under this regulation of the dock board, neither a citizen of New Orleans, nor a stranger visiting the greatest metropolis in the South, and the second port of entry in the United States, is permitted to go upon these public wharves, even for the mere pleasure of sight-seeing, because such a purpose is “not in connection with the commerce and navigation of the port,” and, therefore, the exercise of such harmless and usual privilege would be a violation of this regulation. This construction of this regulation is fully justified by the following extract from the brief of counsel of the dock board:
“Said order has been administered, and enforced, and applied to all alike, and extends and has extended m its operation to the steamship agents themselves, who have no business on the wharves and landings.” Brief, pp. 11 and 12.
This is a fair illustration of the extreme and rigid strictness with which this regulation is being enforced by the dock board. Obedience to this regulation has been exacted uniformly to the very letter.
The regulation is “unreasonable,” and arbitrary, and is plainly in “contravention of common right.”
The regulation is therefore illegal and invalid, under the well-settled law as to municipal ordinances cited supra in Town of Orowley v. West.
On the other hand, if a citizen of New Orleans, or if a visiting stranger, can be granted the privilege of sight-seeing on the public wharves of the port of New Orleans under said regulation, can it be consistently argued that a union longshoreman or stevedore can be excluded the moment he enters upon the wharves, without the commission of any breach of the peace, and without the slightest illegal act of any kind upon his part?
If so, then the ordinance is discriminatory, not “general,” not “impartial”; and for this reason, it is also illegal and invalid. This regulation of the dock board is declared to have been passed under the police powers of the board, conferred by Act 70 of 1896, Act 14 of 1915, and Act 101 of 1920.
In the case of First Municipality v. Cutting, 4 La. Ann. 835, the municipality passed by resolution a police regulation, providing that “from and after the 1st of January, 1846, it shall not be lawful to sell groceries and oysters either at the meat or at the vegetable markets” in the city of New Orleans.
Objection was taken in that case to the validity of the regulation on the grounds “that it purports by its terms to be a resolution, and as such has not the force and effect of a legal .ordinance or by law.” This objection was overruled on the ground that, as said regulation “attached a penalty to its violation,” the objection to its validity because by resolution, instead of by ordinance, was not well taken.
We are dealing here, however, witn a police regulation, whether by resolution or by ordinance, which has attached no penalty to its violation whatever.
“In this state, a statute or ordinance which should content itself with announcing that a certain act shall he a crime or offense, without at the same time attaching a penalty for the doing of it, would be inoperative — entirely incapable of being given any effect by the courts.” (Italics mine.) City of New Orleans v. Stein, 137 La. 652, 69 South. 43.
As the ordinance of the dock board contains no penalty for its violation, it is therefore “inoperative:” As said ordinance is “entirely incapable of being given any effect by the courts,” this court is without judicial power to declare that said ordinance is a legal and valid enactment of the dock board.
As said ordinance is both “inoperative” and “without any legal effect,” it is no ordinance at all in the eyes of the law, and under it no citizen of the city of New Orleans, whether union or nonunion, can be lawfully excluded from the public wharves of the port of New Orleans, during a strike.
Whatever may be the police powers of the dock board, they must be exercised in the manner prescribed by law, and must conform to all necessary legal requirements in their enactment. “Emergency” cannot dispense with the plain and positive requirements of the law in this respect. There are no common-law offenses in this state, and, under our criminal system, there can be no crime or offense, unless the same is denounced by statute or ordinance, and a penalty attached for its violation. City of New Orleans v. Stein, 137 La. 652, 69 South. 43.
An ordinance passed by the dock board, without a penalty, is therefore ultra vires of the powers delegated to said board by the Legislature, and is illegal and unauthorized, as contended by plaintiffs in injunction in this case.
In the brief in this ease the counsel of the dock board refer to this police regulation as “an ordinance” of the dock board, and give reasons why said board “did not attach to their ordinance a penalty one of these reasons being that the dock board “left the enforcement of its regulatory measure” to the United States court under its power to punish, by fine or imprisonment, for the violation of the restraining order issued by said court, prohibiting the strikers from going upon the wharves of the dock board. Brief, p. 43.
Section 3 of Act 14 of 1915, moreover, requires “ordinances * * concerning the territory * * * and control of the port of New Orleans and the proper conduct thereof,” shall attach penalties.
The citizens of this state have the constitutional right to an appeal to this court “in all cases * * * where the legality or constitutionality of any fine * * * or penalty imposed by a * * * board * * *
The ordinance of the board is “concerning the territory and control of the port of New Orleans and the proper conduct thereof.”
Said section expressly provides that—
“All ordinances (of this character) passed by said latter board shall be enforceable by fine and imprisonment, in the same manner as the ordinances of the city of New Orleans now are, that is by fine not to exceed twenty-five dollars, or an imprisonment not to exceed "thirty days, prosecutions to be carried on in the recorders’ courts of the city of New Orleans and in the district courts in Jefferson and St. Bernard parishes.”
Neither a board ñor a municipal corporation can accomplish by an order or a resolution that which under the act creating it or under its charter can be done only by an ordinance. McQuillan, Munic. Corp. vol. 2, & 633.
Counsel for the dock board state in their brief as the reasons for not including the penalty in this regulation:
(1) “That if the board 'in its police regulation had put in that regulation a penalty, the judge of the district court would be powerless and without jurisdiction to issue a temporary injunction in this case, unless there is a cl^ar invasion of a property right.”
(2) “As the subject-matter of this controversy was a matter which related to commerce, interstate and foreign, and as in administering the affairs of the port, the board believed that the United States District Court could more effectually prevent acts destructive to commerce, and did not attach to their ordinance a penal punishment, but left the enforcement of its regulatory measure, acting in conjunction with the restraining order of the United States District Court in relation to going upon the wharves and sheds, the violation of which was punishable by fine or imprisonment, to that court.” Brief, p. 43.
So, it appears from the admissions made by counsel for the dock .board in their brief filed in this case that said board intentionally omitted the penalty reqhired by the state law from its ordinance, and left the enforcement of said ordinance to the- jurisdiction of the federal District Court, whose power to punish for the contempt of its orders is largely in excess of a fine of $25, or imprisonment for 30 days, the limit of penalty in the state courts and under the state law. Act 14 of 1915, § 3.
This act clearly provides for ordinances with penalties fijfed by the state law and for prosecutions for the violation of such ordinances in the state courts, and not in contempt proceedings in the federal District Court, because of any strike injunction issued by said court. The public wharves of the port of New Orleans are exclusively under the jurisdiction of the state of Louisiana. The dock board is a state agency charged with the control of such wharves and of the port of New Orleans. The vio-' lation of all ordinances passed by the dock board are made punishable in state courts, and the penalties for such violation are fixed by state statutes. The federal District Court is absolutely without any jurisdiction to enforce the ordinances of the dock board in strike contempt proceedings of in any other proceeding, and the dock board, therefore, cannot legally omit penalties from its
The ordinance of the dock board in question is not a mere regulation affecting the routine of its business, but it is an ordinance, passed under the police powers of said board, controlling the public conduct of the citizen. It is not an administrative ordinance, but a legislative ordinance. Said ordinance is therefore illegal and invalid, as it lacks the essentials of penalty and of enforcement by prosecution in the state courts, as expressly required by section 3 of Act 14 of 1915. It curtails the personal liberty of the citizen by prohibiting him from doing certain acts, and, at the same time, denies him the constitutional right of a trial in the state courts for the violation of said ordinance.
Section 9 of the Bill of Rights of the present Constitution provides that in all criminal prosecutions the accused shall have the right “to a speedy public trial,” and “that all trials shall take place in the parish in which the offense was committed, unless the venue be changed.” Section 3 of Act 14 of 1915 fixes the venue for the prosecution of all violations of ordinances passed under said act by the dock board “in the recorders’ courts of the city of New Orleans, or in the district courts in Jefferson and St. Bernard parishes.”
Suppose section 3 of Act 14 of 1915 had provided “that during a strike the ordinances of the dock board need not contain any penalty, but may be enforced in the United States District Court for the Eastern District of Louisiana under the penalties of said court for contempt of any injunction issued by said court.” Can it be seriously argued for a moment that such a provision in said act would not be clearly illegal and unconstitutional? How then can said board be permitted to do, without any express authority, that which express authority is powerless to confer; i. e., leave the enforcement of its ordinances during a strike to the United States District Court?
The method in which it is attempted by the ’ board to have its strike ordinance enforced in this case is not only illegal and unconstitutional, but is oppressive, as the punishment under the state statute is limited to a fine not to exceed $25 or to imprisonment not to exceed 30 days; while the federal District Court is authorized to punish for contempt of its authority by a fine not exceeding $1,000 and by imprisonment not exceeding six months, penalties far in excess of the fine or imprisonment limited by section 3 of Act 14 of 1915.
“When the charter or law applicable provides the manner in which local laws or ordinances are to be enforced, such provision is to be construed as- excluding any other manner.” Mc-Quillan, Munic. Corp. vol. 2, § 711, p. 1547.
For these reasons, I am of the opinion that the ordinance of the dock board is clearly illegal and invalid, and that the injunction properly issued in this case.
I therefore respectfully dissent from the opinion of the majority of the court.