New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-04-16
VOLUME VIlI-NO 6,
COURT RECORD.
WEDNESDAY, APRIL Is. 1874.
United States District Court.
IN ADMIRALTY,

United states District Court.
IN ADMIRALTY.
James Levi ct al. VS.. Home Mutual IN
snranee Company. Judgment for hbellan
sor $EoOo and i've per cent interest
Supreme Court.
The following supplemental opinion wa
Mississippi and Mexican Gulf Ship Cana
Company vs.. judge of the Superior Distric
Court.-On application of Warner Val
Norden, rule nisi was issued against til,
Judge Of the Superior District Court, I,
chow cause on Monday, twenty-sixth in
slant, why suspensive appeal should no
be granted.
the State and sheriff, w P. Harper ar,
prohibited from proceeding further IL! III,
sule IS determined.
Superior District Court.
Judge Hawkins rendered .he following
decision:
City Of New Orleans vs. James Stafford
James Stafford vs.. city of New Orleans.
Inc act No. 81 of 1874, entitled an act tt
regulate the private markets in the CITY o.
New Orleans and for other purposes, failt
10 disclose the signature of the Governor tl
the act. Section first Of this act makes i,
'Iniawful tor any person to open, conduct
carry on or continue any private marke,
for the sale of fresh meats, poultry, fresh
fish. etc, N The city of New Orleans within
twelve squares Of any public market under
che jurisdiction and authority of>the AG.
minis,rstor Of Commerce of the city OF
New Orleans" Section second provides
''that the Administrator Of Commerce be
And he is hereby authorized and directed to
close, or cause to be closed any private
1Garkets that may hereafter be established
for the sale CT meats, poultry, etc, in viola
slon OF the provisions Of section first of
ehis act" Sections three and four provide
penalties for any violation Of the act, and
refers 10 the Judge Of the Criminal Court
tor address.
Under this statute the city of New Or
seans has asked the court for writ of in
junction restraining any person from doing
any OF the things forbidden in this act. l
Am at loss to discover what interest the
Sitv OF New Orleans has in the enforcement
Of this act. l am unable to see how the
city can appear and demand the forbdding
Gf any person to do anything prohibited by
.he act. The city of New Orleans, under her
charter, has the right to regulate the public
markets OF the city, and to sell and dispose
Ut these markete. A custom has been, as
the evidence shows, that on the first of
January, or thereabOut, the city of New
Orleans sold to different parties the leases
OF all these public markets in the city for
consideration, each for one year, and took
: che obligations of such lessees tor the price
and gave them the use of these markets for
one year. Unless it be shown that there is
come danger of pestilence or or something
Of that sort, there is nothing for the city
to do; it makes no difference to the CITY
what ls done to these markets; she has no
interest in seeing that the lessees of the
markets shall have the exclusive right and
control of the sale of meat; il makes TO
difference to the city. 1t is little singular
mis- Strc< <np pf ho,
alone been named in this act; and that he
was charged by the Legislature to see that
this law should be executed.
Mr.. Stafford, the person against whom
Che city asks the prohibition or injunction,
makes demand in return against the city
for prohibition, asking that the city Of
New Orleans be eDjoiEed from interfer-
ing with him in the discharge of his
business as owner of a private mar
&et. lie shows license from the city
and aiso one from the State which conflicts
with the law. 1t is urged that the city of
New Orleans having imposed higher H.
eense, thar, consequently, this license Of
Mr. Stafford is not sufficient. / find, how
ever, in looking into the act No. l34 Of 1866
which act is still in force, and was in force
at the time the license was issued, that the
city is directed to license every person "to !
open and keep open at all proper hours Of |
she day, private markets, stores or stands, |
in any part of the city of New Or |
leans, for the sale of meats, game, |
poultry, vegetables, fruit and fresh fish, |
subject 20 the general sanitary ordi- |
nances of the City Council" on the
payment of the license required for retail
ers Of provisions. The ordinance fixing the |
amount of this license has not been pro-
duced, but in the absence of it the court |
will presume that it is not higher than
the licen'e paid in this case-it certainly
is not $500. The court will take judi.
rial notice of what constitutes license
for the retailing of groceries, and that
license is not $500, or any thing approaching
that amount Consequently the city. when
she enacted that every person keeping
a private market must pay $500,
violated the provisions of this stat
ate. and her act is absolutely void,
and binding On nobody. Mr. Stafford having
obtained that license. made contract un-
der the law, which gave him right to de-
nand it. and it is beyond the power of
the Legislature or anybody else to disturb
hat contract. The city of New Orleans
has no right to raise the question at ALL
1or has the Legislature the right TO violate
nat right. because it is right ne had ac
luired under contract Nobody, even
making a new constitution, could disturb |
us right, because the constitution OF the
United States secures contracts and places
hem above every other act which men |
nay do, either in their individual or their
overeign capacity. He then acquired a
ight independent of all legislation and of
III statutes, to carry on this business for
he time allowed. No matter then, SO far
g that is concerned, whether the act now
Dught to be enforced is constitutional or ,
unconstitutional, it could not impair the
blis Q ons imposed by that contract; nor !,
an that be done to any other person who
lay have acquired rights, or even had the
ght TO demand license under the act !
+ 1866; because, as will be seen by {
comparison between these two acts :
,e act Of 1874 in its title and in its pro-
isions, specially recognizes the existence I
nd force OF this act of 1866; it is an act to +
sgulate the private markets, which the act e
1866 created. Now, the act Of 1874 in
inges in no way upon the act Of 1866, be- n
ause that act is the foundation from which n
lese private markets spring. The act OF
"a simply regulates those which were ere j,
ed and authorized to be brought into
,istence by the act of 1866. Now, the ques- v
on comes as to what is regulated by the /,
It Of 1874. The act of 1874 provides that :,
thin twelve squares of 8 public market | o.
, private market shall hereafter be estab- q
'hed. and provides means by which those 4
ready established may be abated; clearly ~
cognizing the right TO establish private =
arkets; doing away with all these obiec- -
,ns that enter into the question of police o .
i'd sanitary power. The act discloses :,
'thing of that character. The police power ',
uld not be invoked at all, because the act ',
stroys the idea that it is at all an exercise e
that power. 81
I must remark here that the title of the -
{ of 1874 is defective on its face, and does -
t disclose what is in the body of the act. az ..
lere is nothing indicative there in refer =,
ce to the preservation of the health of II
e city of New Orleans or its police regu. "
lions The term regulate as used here, h,