New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-08-15
COURT RECORD.
FRIDAY, AUGUST IA, 1874.
Superior District Court.

r FRIDAY, AUGUST IA. 1874.
Superior District Court.
B. Bernichau VS.. B. M. Turnbull ct ais:
August Munshausen VS.. same-Rule for
contempt. ;...
Plaintiffs and others obtained an iniunc-
ton against the Administrator of Com
! merce restraining him from interfering with
their business as keepers OF private mar
kets. On the motion for rule of contempt
they aliege the injunction has been violated
| by the Administrator of Commerce. presi-
dent of the board and the Superintendent
| of the Metropolitan Police.
Counsel for plaintiffs read the rule and
| allegations of imprisonment i'll violation of
| orders of court. 80
Counsel for C. C. Antoine, president of
the Board of Metropolitan Police, and A. S.
| Badger read the folio wing answer:
Now comes c. c. Antoine, president etc.,
| and A. S. Badger, Superintendent, ETC., and
| for return and answer to the rule for con-
tempt herein, say with respect that they
deny that they have directly or indirectly,
or in any manner whatever, violated the
| injunctions issued herein and to them di-
| reeted. but aver that since the service of
said iniunctions they have in every respect
| and in entire good faith conformed there.
unto and they specially deny that they are,
| through the assistance of the Metropolitan
| Police under their control, vexing, harass-
ing or depressing plaintiffs by arrests and
imprisOnments, in violation OF said I'M unc-
! ton.
Wherefore they pray that said rules be
dismissed as to tnem, and at plaintiffs
| costs.
Judge Hawkins said that this simply
raised an issue OF fact.
The assistant city attorney, Mr.. A. S.
Lewis read the following answer:
Now, before the court comes B. NJ. Turn
bull, Administrator of Commerce, respon-
dent in the above entitled cause, and for
answer to the rules therein taken against
them to show cause why they should not
be punished for contempt of the authority
of this honorable court, respectfully shows:
That the acts and doings Of respondents in
| the premises were done and performed by
| them without any intention to commit
| contempt of the authority and orders of
| execute that portion OF act No. 81 OF the
session of the Legislature Of 1874 providing
| for the prevention OF a crime or crimes
| against the statute law Of the State.
| That SO far as the execution of that pOr-
| ton of said act No. 81, which makes it
| criminal statute. respondents show that the
honorable court is without jurisdiction to
| issue any injunction against these respond
ents, all jurisdiction over the same being
vested in the Criminal Court of the city of
New Orleans, to wit, the Superior Criminal
| Court or the First District Court for the
| parish of orleans.
Further, your respondents represent that
act No. 81 aforesaid has been decreed to be
constitutional and valid law Of the land
| in the following cases:
| First-The suit of James Stafford VS.. the
! city of New Orleans; appealed from this
| honorable court. a.
| Second-In the case of the State ex rel.
| A. H. McArthur Judge of the First NUM-
| cipal Court of the city of New Orleans.
| The judge of the Superior District Court,
on wnich writ of prohibition was issued
| by the Chief Justice of the State Of Louis
lana, prohibiting the judge of this honor.
| able court from interfering with relator in
| taking Jurisdiction, and examining cases
| brought before him under said statute, and
which writ of prohibition is still in full
| force and effect against the judge Of this
| honorable court.
Third-In the case of William Mehle & Co.
vs. Bernard Barthe, pending in this honor
| able court, Judge Lynch, of the Fourth Dis
trict Court Of the parish OF Orleans, acting
| for the judge of this honorable court in the
absence of your honor, on rule nisi, after
full argument, decided in very able
and elaborate opinion that the statute
in question was constitutional, lawful and
binding, which your respondent, the Admin.
istratOr of Commerce, was bound to see
executed and enforced, and in which case
there is an injunction now in full force en-
joining and restraining the said Barthe
from carrying OF or conducting private
market.
tiffs having previously applied to the Judge
of the Superior Criminal Court for writs Of
prohibition and mandamus against Justice
| Staes to restrain him from taking jjurisdic-
| ton of cases arising under this statute. and
after full argument Judge Atocha decided
the law constitutional and that the same
| should be enforced.
Further respondent shows that the Attor
ney General of the State has given two
opinions IN writing to the chief executive Of
the State to the effect that the law was
constitutional, legal and binding upon the
citizen and should be enforced by the Ad-
ministratOr of Commerce, and if necessary
to enable him TO execute the law, suth-
cient force should be given him to secure
the execution OF said law.
Wherefore respondent respectfully sub
1nits and pleads that this honorable court
is without jurisdiction to interfere by writ
OF injunction with respondents in the exc
cutlon OF the criminal portion Of act No 81
of the session of 1874 of the Legislature OF
Louisiana, and he respectfully prays that
the rules taken as aforesaid be discharged.
Judge Hawkins-This answer is mere
aggravatioJ of the offence, and an addi
tional contempt. This proceeding is not
one where questions presented in the an
swer can be raised. The court has issue l
an injunction. The plaintiff complains it
has been violated, and the defendant, sum-
nOned here on rule, admits it has been
violated and boldly confesses he defes the
order Of the court. This is not the pro-
ceedlng in which to decide whether this
court has jurisdiction. 1t is not for party
against whom an injunction has been issued
to decide of the legality of it, or to presume
to quote law in defense of disobedience of
1T. 1t there were an INDUCTION improperly
issued the remedy is plain and simple, but
dlsoeedience forms 10 part OF 1T. 1t Is the
duty OF a defendant in an injunction to
obey. II wronged he is easily righted. But
1T is an additional contempt for party to
disobey, and then come before the court at
tempting to show that the order was im-
providently issued
Some conversation here ensued between
different counsel and the court, in which
Judge Hawkins said the answer of the
otner defendants in rule was sufficient un-
less controverted. Counsel for Turnbull
offered several suggestions and was thus
answered:
Judge Hawkins-I am met here by the
startling announcement, made in open
court, IN presence of a large assemblage,
that the Administrator of Commerce OF this
city deties the order of this court and sets
up his own construction of the law in de-
nance. Counsel says he raises the question
OF jurisdiction. 1t can not be raised in that
form. The court must be presumed to con.
strue the law constitntionally. An order Is
Issued, an Injunction granted. 1t is
dissolved hap ba n a<ro tOr