New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-05-24

be necessary in towns and cities, ao9 the
judicial powers of such officers shall not
extend further than the cOgnizance of cases
arising under the police regulations OF towns
and cities in the State"
Upon perusai Of this article for the first
time, the Impression is created that the pro-
hibitiOn takes a wide range and restricts
within very narrow limits the authority OF
the Legislature to confer judicial powers
upon any officer existing or created other
than those named in title four Of the con-
stitutiOn; but, on careful consideration, the
meaning and object of the article are very
clear. This article means neither more nor
less than the Leg islature shall not have the
power to confer jurisdiction to try and de-
termine cases W therein persons are charged
with crime upon any officers except those
mentioned in title four Of the constitution;
but it expressly permits the comforting OF
jurisdiction to try and determine violations
of police regulations. Experience has
taught me that the mistake generally made
in constituting article ninety four of the con-
stltution is simlla. to that made in regard
to article six; those who fall into the error
confOund Otfenses and crimes with simple
violations of police regulations; for if the
argument hold good that police magistrates
can not summarily dispose of cases arisin g
under police regulations. such as defined in
act No. 9, then the entertaining of jurisdic-
ton by them under any police regulation
or city ordinance is in cOntraventiOn of ar
ticle ninety-tour of the constitution
l think the distinction | make will be
considered logical by all who choose to re-
fleet upon the subject. Every violation OF
law is not necessarily a crime.
My attention having been called to de-
cision rendered by the learned judge OF the
Sixth District Court in case similar to the
one at bar, l have taken special pains to
examine that decision, and l freely admit
that commenced its perusal with pre-
disposition to concur with the views of the
learned judge, because l entertain great
respect for his opinions on questions of
law; but regret to say that the very de-
cisions he has quoted lead me to a con-
clusion entirely different from the one he
has arrived at. In the quotation from Mr..
Dillon on Municipal Corporations, dis
tinctiOn is made which seems to have es-
capped the learned Judge. The language is
as follows:
Under the general term OF ordinances
have sometimes been included all the regu-
lations by which corporation is governed,
including special charter or statute regu-
lations, as well as bylaws"
Here it will be perceived distinction is
made, and very properly, between statute
regulations and bylaws. Again, quoting
from the same authority:
According to Lord Coke the word 'by'
or bye signifies a habitation, and thence,
by law in England, or a bylaw or ordi-
nance in this country, may be defined
to be the law of the inhabitants Of
the corporate place or district, made
by themselves or the authorized
body, in distinction from the general law of
the country or the statute law of the State"
Thus it is evident that statute regulation
and bylaw are not one and the same thing.
A Legislature does not enact bylaws; but
it can establish police regulations. Article
ninety-four of the constitution does not
designate who shall enact the police regula-
tons referred to in the article; it merely
restricts the judicial power to lie conferred
on officers created by the Legislature, that
is, the power to adjudicate finally, or to dis
pose of sHEmarily, to cases arising under
police regulations of cities and towns; but
it does not prohibit the establishing of these
police regulations by the Legislature. In
deed, in the case of Diamond VS.. Cain (2l
A., 3l9,) it has been expressly decided that
the whole subject of the city corporal ion
and police is, by the constitution, left in the
power and discretion of the Legislature.
An act of the Legislature should not be
declared unconstitutional unless this be ap-
parent beyond all reasonable doubt. q A.,
694, aud authorities there cited. l entertain
no doubt that act No. 8 is constitutional, but
had l a doubt, under the decision Just
quoted, | would resolve the doubt in favor
of the act
The second ground urged on behalf Of the
relatOr is that act No. 9 is an attempt by
the Legislature to enforce by criminal pro.
cess doubtful private rights. l can not
perceive the force of this assertion. The
Supreme Cont Of this State has in two
decisions (23 A., 743; "a A., 8S) sustained
the monopoly of the traffic in lottery tick
cts in favor OF one company. In exchange
for the monopoly and privileges granted,
the State receives $4,000 yearly; the State
is bound to protect whatever rights or priv
ieges it confers, and to see that they be
not interfered with or abridged; and for
that purpose it may enact either general or
local laws. The only party in my opinion
having any right to complain that the act
affects the city of New Orleans only, is the
Lottery Company tor whose protection it is
enacted. The provisions of act No. 9 are
restrictive upon the company, for even its
own lottery tickets can not be sold by
others than itself, except under license
from the company. Under the act no one
is deprived of the right of selling lottery
tickets; it is merely required that those de-
string to sell shall do 80 under such cOndi.
tions as to maintain the rights and prlvi-
leges of the company holding the monopoly;
which would seem to be equitable.
If the grant to the company be valid II
have shown it has been decided 80 to be by
the highest authority it is contrary to pub
lie order and good faith to infringe it. A
measure to protect it is a measure to main
tain the public order and prevent the minor
,.l 10
tide police regulation.
Entertaining the views have announced
can not grant the relief prayed for under
the writ, and must order the relatOr to be
taken into custody by the sheriff and held
lnder the commitment issued by the Judge
Of the First Municipal Police Court.
Fourth District Court.
Judge Lynch rendered the following de-
;ision:
Peter Joseph Va. David Bidwell.-ln this
ease the plaintiff, Peter Joseph, alleges
hat David BidweIl is indebted to him u
he sum of $1,000 for damage which the
said Bldwell has caused him, in this {:
That the said David Bidwell is the pro-
,rietor of the Academy of Music in the
,ity of New Orleans, place of business,
where, for payment the public witness
md enjoy plays of different kinds peculiar
o theatres OF amusement and pleasure;
hat said Academy of Music is public
,lace, from which the State of Louisiana
md the city of New Orleans require each
license to pursue said business of enter
aiming the public with plays for pay; that
aid license is contract between the
State and city each, and said Bidwell, to
conduct his said business in accordance
With the laws of the State of Louisiana,
and especially to make 10 discrimination
thu nd. Of ha
cause of race, color or previous condition
If servitude, under penalty of forfeiture
If license and closing of business; that on
the seventh day of March, 1874. |
n the evening, plaintiff, IN company with
, friend, went to said Academy of Music