The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1849-05-11
Supreme Court of Louisiana.
Condensed Deoisions-NEw ORLEANS. Nav

The statute Incorporating city of New Orleans and those
amendatoy thereof prescribe form in which the
legislative acts OF the Mayor and City Council are to be
exercised and those acts therein styled ndscrim-
nafely ordinances, bylaws and regulations resou-
ton properly enacted is valid regulation and has the
orcs and effect Of legal ordinance The corporation of
New Orleans has the right to prohibit the sale of groce.
nes in the markets, under penalty of fine resou
ton imposing fine for the violation of pree1 sng or.
dlnance referring to its object, but mentioning neither
us title nor its date, is not void for of certainty
The strict and rigid rules by which the validity of penal
statutes to be tested applicable the by laws
ola municipal corporation
MUNICIPALITY No. ONE ps. E. CUTTING
Appeal from the Fourth Justice of The Peace of the
Parish Of Orleans. .EUsTIs, c. j.. Appeal by
defendant from judgment against him for the
amount of fine for violation of one of the ord-
nances of the First Municipality. The ordinance
is in these words: " Resolved, that after the pro-
mitigation of this resolution, any person selling
groceries At the markets shall pay fine of from
$25 to $50 for each and every time he shall vio-
late the ordnance forbldding TO sell groceries I'M
der the Meat and Vegetable Markets." The ordi-
nance TO which this refers, provides that Z" from
and after the first OF January, 1885, it shall be
lawful to sell groceries and oysters either at the
Meat or at the Vegetable Markets."
The first and most material objection which has
been taken to the validity of this ordinance or by-
law, is that it purports by its terms be resolu-
hoH, and, as such, has not the force and effect of
legal ordinance, or bylaw. Per curiam: We con-
sldered this objection in the case of Municipality
No. One Us. Devron, recently decided, and it was
not without difficulty that We came to the conclu-
sion in favor of its legality. That conclusion was
founded on the indefinite character of the powers
given to the Mayor and City Council of the late
city of New Orleans by the several statutes on that
subject. No form in which their legislative acts
are TO be exercised is given in any of the statutes
They have authority to make and pass bylaws or
ordinances, and, in one instance fines imposed by
the regulations and bylaws of the corporation,
recognized as valid 2 Moreau's Dig, p. l24. In
another Instance provision is made for the recovery
of fines incurred for offences committed against the
ordinances and regulations enacted by the City
Council. Considering, therefore, that the ordi-
nance contained prohibition with the penalty at.
tached, it was in fact bylaw regulation, and
the form made use of in enacting it did not render
it void as such. 1t was signed by the Mayor, ard
no valid objection was made to the power of the
Council TO enact it.
1t was next contended that the corporation. has
no right to prohibit the sale of groceries in the
public markets. This ground was held untenabe.
| Backstone's Com. p. 27f; Domat, Droit Public,
lIv. l, sec. 3; Morauo Us. the Mayor, L. r., 2I8.
1t was next urged that the resolution is illegal,
because it refers to an ordinance iorbdding the
sale of groceries in the two markets, without
stating what ordinance, and no such ordinance has
been shown. The ordinance referred to has been
cited at length. 1t prohibits the sale of groceries
and oysters. Per Curiam: If the ordinance
der consideration were penal statute, the penalty
might not be enforced, by reason of lis want of
certainty; but we have not understood that the
strict and rigid rules by which the validity of penal
statutes is to be tested are to be applied to the by
laws of a municipal corporation. The bylaws of
very few of those corporations could stand such
test. Loze Us. the Mayor of New Orleans, l..
R., AT. We understand the fine which munich
pal corporation is authorized TO recover for the viO
lation Of its ordinances to be a penalty in the ma
fure of llgudated damages, and established such
in lieu Of the damages which court would be
authorized to assess. Wilcox on Municipal Cor
porations, Sec 1868. A bylaw must be consonant
with the law Of the land, but it must receive a
reasonable construction, and its terms must not be
strictly scrutinized for the purpose of making it void
Ibid sec. 3S2 The sense Of the ordinance in ques-
ton being plain and obvious to the most common
understanding, we do not think it void by reason
of uncertainty. Judgment affirmed, with costs.
landlord may maintain the revocatory action under
1865 seq, c. c., against his subtenans who have
received from the tenants merchandise in payment
for their claims when it is shown to have been to their
knowledge that the tenant insOlven at the time OF
making such transfer of property to them:
WILLIAM FLoRANCE Us. NOLAN d CONNOLLY,
Stout OpDYKE, Appellant. Appeal from the
Fourth District Court Of New Orleans. .SLIDELL, J.
Florance sued out writ of provisional seizure for
rent and seized few articles in the possession
of his tenants, Nolan d Connolly. 1t was then as
certained that on the day previous Nolan a. Con-
molly had invited various creditors to help them
selves to the goods in their store. Among others,
the appellant, Opdyke, took goods to the amount
of his claim; among the goods were some on which
he had not the vendors lien. FlOrance then made
all these creditors parties to the suit, in revoca-
tory action, to set aside this transfer OF property,
under art. 1865 et seq C.. C. The revocatory &C
ton sustained, and Opdyke alone appealed.
The decision below was affirmed, 1t being sails
factorily proved that Nolan g. Connolly were in
solvent to the knowledge of these creditors, and
that their proceedings were calculated to give
them an illegal preference.
Where widow after the death of her husband who died
in Of absolute restitution, took possession in pres.
ence of Witnesses conservatory measure OF TWO old
trunks, and their contents formerly belonging to him.
and when sued by of the creditors OF her husband
she avered her readiness to deliver the property to any
person authorized TO receive it held, that Art 23S7 o.
q. wasinappicabe When succession will not dsfray
the expenses of administration, the widow is not bound TO
have il administered.
| Appeal from the Second District Cour8w &New
| Orleans .RosT, J. Plaintiff, who s u. tor
of the late Jean Marie RivoIet, seeks to make his
widow responsible for the debt, under Art. 1887 G.
| c. Defendant pleaded general denial and an
averment that the defendant has neither concealed
nor made away with any of the effects of the COM
munty bat that after the death of her husband, as
| conservatory measure and in presence of wit
nesses, she took possession of two old trunks and
their contents which she is ready to deliver to any
| person authorized to receive them. The District
| Court nonsuited the plaintiff, and he appealed
The testimony sustained the defence. 1t was shown
that Rvolet lived separate from his wife, the de-
PENDANT, and died in state of absolute destution
that his brother paid his funeral expenses and that
the person in whose house he lived has against him
claim for rent and attendance which he considers
lost 1t was held that if the succession would NOT
have betrayed the expenses of administration, the
| widow was not bound to have it administered
| Judgment affirmed, with costs.
MUNICIPALITY No. ONE Us. THOMAS voGTEL.
-. Appeal from the Fourth Justice of The Peace q
the Parish Of Orleans. .EUsTIs c. j.. For the
reasons assigned in the case Of Municipality No
One Us. Cutting, supra, the judgment was affirmed
| with costs.
! AMY HEWLETT, f. w. c., ps. ]. P. HENDERSON
| ADpeaZ from the Third judicial District Court
| Parish of Jefferson. .SLIDELL, j.. Judgment
| affirmed, with costs.
| GEN. TAYLoR's VISIT TO BosToN.-T'he Massa'
| 4 hos taEo efepc tOIyard