50 La. Ann. 549 | La. | 1898
The opinion of the court was delivered by
The relator seeks by the writs of certiorari and prohibition to review the proceedings before the Recorder .of the First District, resulting in the sentence that Relator pay fines for violating the city ordihances prohibiting assignation houses.
With other allegations unnecessary to be considered, the Relator"
In proceedings before the Recorder for violation of ordinances it is not essential the rules should be observed with reference to the structure of indictments. It suffices that the affidavit on which the proceedings are based should with reasonable certainty specify the offence. In this case the affidavit charges the violation of the ordinance, giving its number, relating to houses of prostitution and assignation, and the dates when the violations occurred are stated. The affidavit would have been in better form if the Relator had been charged with keeping a house of the character prohibited by the ordinance. No greater particularity could be deemed required when the use of the house for the purposes of prostitution and assignation is the offence. We think the affidavit conveyed with sufficient certainty the notice of the charge. Horr & Bemiss on Municipal Ordinances, p. 145, Sec. 172; State vs. Mack, 41 An. 1081; State vs. Dunbar, 43 An. 836.
The more serious complaint of the Relator is that she was sentenced without any proof, save of notice given by the Mayor to remove from her premises. This furnishes the basis of the argument that Relator has been sentenced not for keeping an assignation house, but for non-compliance with the order of the mayor. This construction of the ordinance that authorizes sentence on mere proof of the notice and non-compliance, the relator insists, makes the ordinance exceed the power conferred by the charter on the council, and also brings the ordinance in plain conflict with the constitutional guarantees of the rights of person and property.
The ordinance provides that whenever a house of prostitution or assignation becomes dangerous to public morals from the manner it is conducted, or the character of the neighborhood, and the mayor is informed of it, that it shall be his duty to give notice to the occupant of the house to remove, and for the offence of keeping the house and for each day’s persistence in that use after receiving the notice, the ordinance imposes a fine. Flynn’s Digest, Art. 1081. It appears the relator in previous proceedings before the recorder was fined, then brought the ease before us on a certiorari, but the record disclosed no basis for us to review the proceeding. She was again
Under this ordinance the use of the house for the purposes specified is the offence, not the failure to obey the mayor’s notice. No fine can be imposed, it is true, without proof of the mayor’s notice, but it is equally true that the keeping of the house for the prohibited purpose must be also proved. Were it otherwise the mayor’s notice would be conclusive of the offence. No such construction can be admitted consistently with the protection the Constitution affords to the rights of property. Constitution, Art. 6; Corporation of Minden vs. Silverstein & Dittmer, 36 An. 913; State vs. Mack, 41 An. 1081. It is quite true that the use of the house for the purposes forbidden by the ordinance once proved, is presumed to continue until disproved. But the difficulty in this case is that no proof whatever of the use was administered and proof claimed to negative that use since the notice was excluded. The sentence without proof and the refusal to hear relator’s witnesses authorizes the relief claimed on the present application. Constitution, Art. 90; Code of Practice, Art. 897.
It is therefore ordered, adjudged and decreed that the sentenec imposing the fines of one hundred and ten dollars, the subject of this