41 La. Ann. 27 | La. | 1889
The opinion of the. Court, was delivered by
The defendant is appellant from several judgmepts rendered against him for certain alleged violations of city Ordinance No.
The view we have taken of the merits renders it unnecessary for us to pass upon the various objections urged to the constitutionality and legality of the ordinance and the law. '
I.
Defendant’s counsel urged objection to the introduction of said ordinance in evidence, because the plan, which was made a part of it, was not offered at the same time.
This objection goes to the effect and .not to the admissibility of the evidence. True, it was made a part of the ordinance by the City Council, but it is referred to as a plan on file in the office of the Administrator of Commerce. This was certifying to its legal effect only, and not that it was, physically, incorporated into it. It was properly admitted separately from the plan.
II.
He also urged objections to the introduction of a certain purported sketch, or tracing of. the original map, on thé ground that the loss of the original had not been established, and that it was not correct as a tracing. From what appears in' the record, it seems that' both parties introduced secondary evidence of its contents and purport, and we see no objection to all of it being considered.
III.
The only question open for discussion is whether the corner of Magazine and Erato streets, at which place the defendant has his private market established, is within prohibited limits.
While the testimony of one of the witnesses for the prosecution is to the effect that defendant’s private market is within 2100 feet of St. Mary’s Market, or within the prohibited distance, Ms statements are predicated, exclusively,. upon an examination of the tracing to which he refers, and information obtained from others.
Defendant’s evidence discloses that, in 1880, he established 1ns market at the corner of Magazine and Gainnie streets, and being prosecuted therefor, he removed it One square further from. St. Mary’s Market, and re-established it at the corner of Magazine and Erato street, where it still remains. That no further proceedings were taken against him until the affidavits under consideration were filed.
Defendant states, ns a witness, that, for two. or three years he rented his present stand, and then purchased it.
Two witnesses testify that the corner of Erato and Magazine streets is seven squares from St. Mary’s Market.
We think the testimony was properly admitted. That it was competent, and exercised a material bearing on the question at issue.
Having been the City Attorney at that time, he was a competent witness to speak of the transactions and proceedings of the city authorities in the enforcement of this ordinance against the defendant, as circumstances indicating what was the prescribed limit thereunder, in the absence of the plan referred to as lost.
He says that he is perfectly familiar with ordinance No. 4798 ; that he wrote it; that he is perfectly acquainted with the plan which formed a part of it. He states that it was drawn by the City Surveyor under his instructions, as representative of the city.
“ Q. How was the distance ascertained under which the private markets were prohibted ?
“ A. The distance was ascertained by the map, which is declared in this ordinance to be a part of it, under section four. * *
“ The question then presented itself as to what was meant by radius of six squares, and, in order to prevent trouble about ' what a radius of six squares meant, I advised a plan to be made to officially designate what places were within the prescribed limits.
“ Q. You say the prohibitory limits were ascertained how ? Was it by measuring so many feet, or by so many walking squares, on that map ?
“ A. It was ascertained by taking the far side of the street around the market, and walking six squares the nearest way. * * The limits were distinctly fixed on the map.
u Q. By what measurement ?
“ A. By taking the far side and walking six squares the nearest way.
“ Q. Then it was by walking squares?
“ A. Yes, sir.”
Giving full weight to the evidence of the prosecution, predicated upon what is alleged to be a tracing from the original map, the testimony of Mr. Farrar appears to be conclusive against the State.
Whatever theory may have been entertained with regard to the meaning of the phrase “ within a radius of six squares,” as contained in the
“ Manifestly the lawmaker knew that in a city no one can move from one point to another on an air line, hence the language ‘ a radius of six squares ’ must have been intended to mean a route, or distance of six squares, in all directions, from a public market, sxxch as a human being coxxld xxse.”
Applying this test to the various charges against the defendant and the prosecution mxxst fail, because his market is more than six walking-squares from St. Mary’s Market, coxxnted the nearest way, and hence, not within the limit prohibited by the ordinance in question, and consequently, the several judgments appealed from mxxst be reversed.
It is, therefore, ordered and decreed, that the several judgments appealed from be annulled and reversed, and the defendant discharged, with cost in his favor.
